The people of California have had a hard time getting judges to take seriously their right to retain the legal definition of marriage as the union of a husband and wife. First, they approved a statute, Proposition 22, in 2000 to add that common-sense definition to the law. Their desire was frustrated when the California Supreme Court decided the state’s constitution mandated a redefinition of marriage. This necessitated Proposition 8, approved in November 2008, that amended California’s Constitution to clarify that marriage, as it has always been understood, is entirely compatible with constitutional rights.


Not content with this exercise in self-government, activists and elite attorneys challenged Proposition 8, in federal court in a case intended to obtain a national redefinition of marriage. Though the voters of California had approved it, the governor and attorney general of California refused to defend the law. That task fell the citizen proponents of the measure. The judge assigned to the case pushed for a trial even though the relevant question was whether the U.S. Constitution includes an unwritten, and previously undiscovered, right to one’s own definition of marriage. He also attempted, with only limited success, to turn the trial into a public spectacle.


Thus, it was not entirely surprising to learn that the judge had ruled this week that Proposition 8 was inconsistent with the federal constitution. The decision is novel in the extreme. The court made a number of factual statements including:


  • “Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted.”
  • “The genetic relationship between a parent and a child is not related to a child’s adjustment outcomes.”
  • “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.”
  • “The campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.”
  • “Gender no longer forms an essential part of marriage.”


On the basis of these ideological conclusions, the court decided two provisions of the Constitution should prevent the people of California from reflecting the ideal of marriage as the union of a man and a woman in their laws. The court improbably argued that same-sex marriage is consistent with the history and traditions of our nation. The court also said that Proposition 8 singled out a specially protected group, people defined as a class based on their “sexual orientation,” for unfair treatment. Both conclusions are entirely out of step with precedent and with any fair reading of constitutional provisions.


The real crux of the decision, though, is the implausible claim ignores the reality that marriage has also existed in all, or nearly all, societies as a way of bringing together men and women to protect the birthright of children to have a relationship with their own mother and father, committed to each other and to the children their union may create.


The judge seems to understand marriage as it has been inherited from millennia of human experience, as nothing more than a homophobic conspiracy. This, in turn, constitutes an accusation that all those who believe in a child-centered understanding of marriage are irrational bigots.


As intended, this decision will be appealed to the U.S. Court of Appeals for the Ninth Circuit. If that court were to endorse Judge Walker’s reasoning, same-sex marriage would be forced on the states in that circuit. This would also make dramatically more likely that the case will then be heard by the U.S. Supreme Court where the plaintiffs will try to secure a mandate for a national redefinition of marriage.


In a bizarre sideshow, following Judge Walker’s ruling, Governor Arnold Schwarzenegger and Attorney General Jerry Brown asked the judge to force California to start issuing marriage licenses to same-sex couples immediately. It is to be hoped that a decent respect for the voters of California would motivate some clear thinking judge or judges to hold off such a step until the appeal is allowed to play out.


The Supreme Court strategy involves significant risk, however. At least one prominent advocate of redefining marriage has expressed misgivings ( about Judge Walker’s opinion, noting that its’ extreme breadth may make it an easy target for reversal on appeal. So, other advocacy groups like the ACLU are continuing their incremental approach, suing in various states in an attempt to get state courts to rule that the benefits of marriage need to be extended to same-sex couples.

There will likely be other lawsuits, perhaps instigated by the Proposition 8 case.


If the Proposition 8 plaintiffs are successful at the Supreme Court, same-sex marriage will be the law of the United States. If the Supreme Court rejects the claim, marriage will have a reprieve until the other lawsuits get to the court. Advocates of the incremental strategy are not disavowing same-sex marriage, they just believe strategically that the Supreme Court is more likely to buy their arguments if they first get state courts and legislatures to accept their claims and thus chip away at opposition to a radical redefinition.


Defenders of marriage would do well to pursue more permanent protections like a constitutional amendment to clarify that marriage between a husband and wife is completely consistent with the constitution.