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The Confederate Lawyer
August 24, 2010

A Federal Judge Ignores Truth
Part I: He Takes Sex Out of Marriage

by Charles G. Mills
fitzgerald griffin foundation

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.

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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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