Gay marriage: A case of fundamental rights?

“Bigotry has suffered a grievous blow,” said Eugene Robinson in The Washington Post. In a decision clearly designed to “change the terms of the debate” over gay marriage in this country, federal Judge Vaughn Walker last week threw out Proposition 8, a California ballot initiative banning same-sex marriage, by placing the issue firmly on constitutional grounds. Walker, a libertarian-leaning conservative nominated by both Ronald Reagan and George H.W. Bush, said the ban violated gay citizens’ rights to due process and equal protection under the law. In “a stirring and eloquently reasoned decision,” said The New York Times in an editorial, Walker wrote that denying marriage to gay people is a form of discrimination based solely on the “irrational” belief that “there is something wrong with same-sex couples.” For the same reason courts invalidated laws forbidding interracial marriage decades ago, Walker said, he was tossing Proposition 8 into the garbage bin. “Fundamental rights,” Walker said, “may not be submitted to a vote.”

What a “raw exercise of judicial imperiousness,” said Rich Lowry in National Review Online. Walker is entitled to his radical view that traditional marriage is, and I quote, “an artifact of a time when the genders were seen as having distinct roles in society and marriage.” But he is not entitled to impose that view on the 52 percent of California voters who supported Prop. 8. “There is no more a constitutional right to marry than there is to a driver’s license,” said Investor’s Business Daily. In defining marriage as the union of one man and one woman, 7 million Californians weren’t practicing bigotry; they were simply following the lead of “healthy societies around the world and throughout history.” Judge Walker is gay himself—a fact that went unmentioned during the trial and in his decision—and he should have recused himself because of his obvious bias. Instead, Walker chose to become a champion to his fellow homosexuals, handing down an “undemocratic ruling with massive social consequences.”

Complain about Judge Walker all you like, said Ross Douthat in The New York Times, but we conservatives are losing the argument on gay marriage. It’s simply not true that monogamous marriage between one man and one woman is the only “natural” arrangement, and the norm in all societies from ancient times. For many societies, the “default family arrangement” has been polygamy, with communal rearing of children. And if monogamy were so natural, we heterosexuals wouldn’t be plagued by the ongoing epidemics of infidelity and divorce. The only real argument we can make, as Walker’s ruling now wends its way through appeals and inevitably winds up at the U.S. Supreme Court, is that “lifelong heterosexual monogamy” is “one of the great ideas of Western civilization,” offering children prolonged, “intimate contact with both of their biological parents,” and “an organic connection between human generations.” It may not be a universal norm, but it is an ideal deserving of special recognition and honor.

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Not if it means excluding gay people, said Andrew Sullivan in TheAtlantic.com. We’re just as capable of long-term love and commitment. My partner’s parents were always tolerant and supportive of our relationship, “but it was not until we told them that we were ‘engaged’ that something finally clicked”—and I became an accepted part of their family. Until recently, we gay people have been exiled beyond the boundary of family. Letting us back in, through marriage, is a means of saying we’re equal members of society. “It is about making the human family whole.”