Set aside for a moment your personal beliefs about gay marriage. What does it say about yesterday’s federal ruling on the subject, which struck down California’s constitutional amendment against gay marriage, that some of those who support gay marriage are nervous about the judge’s reasoning and his decision’s reach?
First, from Dan Blatt, one of the writers at Gay Patriot:
I find that the judge makes some good arguments for gay marriage, but doesn’t succeed in relating them to the constitution. His legal analysis is sloppy at best and dismisses the sex-difference argument for traditional marriage by flippantly referring to what he calls “discredited notions of gender” as if the assumptions about a supposed social construction of gender had been proven true when, in fact, all serious psychological, sociological studies have shown the opposite. Not to mention studies of the human brain.
He fails to cite a provision of the federal constitution which prevents states from making distinctions based on sex difference, primarily because there isn’t one.
What I like is that he does make a strong case for the social benefits of marriage as an institution, the kind of arguments I believe gay marriage advocates should be making in legislatures and in courts of public opinion. (emphasis original)
Next, there’s Dale Carpenter writing at Volokh Conspiracy (note that I’m not sure whether Carpenter personally supports gay marriage, but he writes about that perspective here):
In reading so far, I think a notable feature of Judge Walker’s decision is its judicial maximalism — a willingness to reach out and decide fundamental constitutional questions not strictly necessary to reach the result. It is also, in maximalist style, filled with broad pronouncements about the essential characteristics of marriage and confident conclusions about social science. This maximalism will make the decision an even bigger target for either the Ninth Circuit or the Supreme Court. If that’s right, it magnifies the potential for unintended and harmful consequences for gay-rights claims even beyond the issue of marriage. Think of a possible (but milder) anti-SSM [same-sex marriage] version of Bowers v. Hardwick, which had consequences far beyond the constitutional affirmation of sodomy laws.
Walker is the first federal judge to hold that states must recognize same-sex marriages. By doing so, he eschewed a potentially narrower ruling striking down only Proposition 8, which had been suggested by some commentators. … In theory, [such a ruling] would have left states free to retain traditional definitions of marriage not reinforced by passion-driven plebiscites. I think a narrow, strictly anti-Prop 8, decision would have tried to thread too thin a needle, but it was an option….
Few courts upholding a right to SSM have used a fundamental-rights rationale (not even the original SSM decision, Goodridge, did so). It’s an aggressive claim, especially given the composition of the federal courts and the Supreme Court. I see little enthusiasm in this Court for expanding fundamental rights. If the Ninth Circuit and/or Supreme Court decide to reverse Walker’s ruling, they will be more likely to deal with this issue in a way that will set broader precedent.
And finally, Hot Air’s Allahpundit:
[W]hile it’s no secret that I support gay marriage too, I think they’ve made a needless mistake in pushing this in the courts instead of doing it legislatively state-by-state. The optics are uniquely bad — a federal judge imperiously tossing out a public referendum enacted by citizens of one of the bluest states in America on the shoulders of a multi-racial coalition. If the goal of gay-rights activists is to make same-sex marriage palatable to the public, then embittering opponents by torpedoing a hard-fought democratic victory seems like … an odd way to go about it. The response to that will be that equality can’t wait, just as it couldn’t wait vis-a-vis school desegregation in the 1950s. Except that (a) no one, including gay-marriage supporters, seriously believes that the harm here is as egregious as the harm to blacks under Jim Crow, and (b) there was no assurance of a legislative solution to racial injustice in the 1950s the way there currently is for gay marriage. A strong majority already favors civil unions; as I noted earlier, opposition to same-sex marriage is in decline and down to 53 percent. When polled, young adults are invariably heavily in favor, guaranteeing that the legal posture on this issue will shift further over the next decade. The real effect of this decision, assuming it’s upheld on appeal, will be to let gay-marriage opponents claim that they were cheated in a debate that they were losing and bound to lose anyway. That’s what’s called a pyrrhic victory. Too bad.
This last bit is the key point here imo. A judge who overturns a state constitutional amendment approved by a significant majority of voters, in an election with high turnout, creates resentment not only among those who disagree with the outcome of the ruling but with the process of it as well. Process isn’t everything, but in a nation ruled by laws it is very important.
Such an expansive ruling, one that all but guarantees a showdown over the issue at the Supreme Court, might as well eliminate two possible compromises that may have garnered majority support: first, a move to recognize civil unions and grant them equal legal rights without redefining the term “marriage”; or second, and trickier, a move to stop using marital status to grant those legal rights.
I read a comparison somewhere of this ruling to Roe v. Wade — implying that a judge’s insertion of himself in the legislative process means the culture wars will rage on for decades longer. Oh, joy.