GLEN COVE, NY — After a two-week trial with 19
witnesses, Vaughn R. Walker, the Chief Judge of the Northern District
of California, issued a 136-page decision holding that the California
constitutional provision limiting marriage to a man and a woman violates
the Constitution of the United States.
The court held, among other things, that the California constitution
(1) burdened a fundamental right without a compelling state interest,
(2) discriminated without a rational basis for the discrimination,
and (3) discriminated against a protected minority without a compelling
state interest to justify the discrimination. For these reasons, the
court held that the California constitutional provision deprived homosexuals
of liberty without due process of law and denied them the equal protection
of the law.
Of the hundreds of things wrong with the opinion is the way it plays
fast and loose with history. The court found testimony that marriage
is “a socially-approved sexual relationship between a man and
a woman” to be unreliable. Instead, the court found, “Marriage
is the state recognition and approval of a couple’s choice to
live with each other, to remain committed to one another, and to form
a household based on their own feelings about one another and to join
in an economic partnership and support one another and any dependents.”
Nowhere in its lengthy findings on marriage does the court mention
an exclusive right of the spouses to sexual relations with each other.
Indeed, the court throughout its entire opinion does not seem to think
that sex is a significant part of marriage.
The court does, however, criticize the view that procreation is an
important part of marriage. It repeatedly points out that infertile
couples have always been allowed to marry. This is true but disingenuous.
Although infertility at the time of marriage has never been a basis
for annulling the marriage as invalid, perpetual impotence always has
been. One wonders, if this case stands up on appeal, whether a man
sued for an annulment on the ground of impotence will defend himself
by saying he is fully capable of doing to his wife everything a lesbian
could. It is not because same-sex couples cannot have children that
they cannot marry; it is because they cannot engage in the activity
that produces children.
Indeed, the court attributes the historic limiting of marriage to
one man and one woman more to economic and societal factors than to
sexual ones. It compares the prohibition of homosexual marriage to
laws against interracial marriage; further, it attributes the limiting
of marriage to one man and one woman to the historic role of the husband
as breadwinner and the wife as homemaker. The court seems to think
that the traditional roles are now so obsolete that there is no longer
any need for real husbands and wives. The court says that the California
provision is “nothing more than an artifact of a forgone notion
that men and women fulfill different roles in civic life” and
says that the provision “harms the state’s interest in
equality, because it mandates that men and women be treated differently.”
The closest the court comes to admitting that sex has anything to
do with marriage is to denounce as a “stigma” the belief “that
gays and lesbians do not have intimate relationships similar to heterosexuals.” The
court found that same-sex love and intimacy have occurred throughout
history but that identifying people as heterosexual, homosexual, or
bisexual is a product of the nineteenth century. If there is any truth
at all to this statement, it is only that some scholars in the nineteenth
century began to consider personality more than conduct. Blackstone
and the legislatures of the American colonies understood perfectly
well that homosexuality was defined by conduct.
In his ruling, Judge Walker simply failed to understand that marriage
is about sex.
The Confederate Lawyer column is copyright © 2010
by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com.
All rights reserved.
Charles G. Mills is the Judge Advocate or general counsel for the
New York State American Legion. He has forty years of experience in
many trial and appellate courts and has published several articles
about the law.
See his biographical sketch and additional columns here.
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