Thank you, Judge Walker, for carefully weighing the evidence, exposing the logical fallacies of the proponent’s arguments, and unmasking their attempt to impose their personal biases on how the law is applied to their fellow citizens:
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.
Judge Walker started by reviewing the history of marriage under the law, and its evolution as society’s view of “natural” gender differences changed. He clearly demonstrated that Proposition 8 is based on the premise that the state has a legitimate interest in enforcing particular gender roles. Frankly, if I were a woman, this would scare the heck out of me: it hasn’t been that long since those “natural” gender differences made women chattel property of their husbands, and forbid them from participating in much of society. If you don’t want to be kept barefoot, pregnant and in the kitchen, you really don’t want to establish a precedent for the state to enforce gender roles.
After establishing that marriage has evolved under the law to be recognized as a union of equals intended to improve the lives of the participants, and that marriage is a fundamental right, Judge Walker pointed out something I wish all of my fellow citizens would keep in mind (emphasis added):
Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny. Zablocki, 434 US at 388. That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943).
It is a sad commentary on the state of our educational system that many people think “majority rule” means “the majority should get its way when it wants to”. The whole point of constitutionally-protected fundamental rights is that we each have to put up with the exercise of them, regardless of how we feel about specific expressions of them. Or, as Voltaire put it when talking about freedom of speech, “I do not agree with what you have to say, but I’ll defend to the death your right to say it.” If you can’t make that pledge, if you have to hedge your support of fundamental freedoms to fit your own particular worldview, then you are, at best, only a fair weather friend of freedom.
Addendum: one of my brothers sent me this link, which goes into some detail about the Barnette decision. It’s worth reading: http://www.usatoday.com/news/opinion/forum/2010-08-06-engardio05_ST_N.htm.
