U.S. District Judge Vaughn Walker, one of only three openly gay Federal judges in this country, not surprisingly issued an opinion yesterday overturning California's Proposition 8, a voting referendum in which California voters decided (51% to 49%, or about 600,000 votes) that gay marriage would not be legal in their state. Judge Walker did so in a 130+ page opinion, relying on the Equal Protection and Due Process clauses of the 14th Amendment to the Constitution. He has not decided at this time whether to stay the effect of his ruling pending appeal. Both sides expect the case to end up in the U.S. Supreme Court.
There are two obvious questions that bear asking - what consideration, if any, was given by the parties, or the Judge himself, to recusing him from the case given what had to have been a significant personal bias? Apparently Judge Walker did not believe his sexual orientation rendered him any less objective about hearing this case. Given that the case was, and is, due to go on appeal regardless of the District court outcome, perhaps the decision was simply to move ahead and not worry about recusal. And, given that the question of law will probably be subject to de novo (without deference to the District Court) review by the appellate Court, this may have been the thinking.
Second, and more important, is the question of how and why a Federal Judge believed he had the authority to overturn a state-law decision made by a public vote? For this, an examination of the 14th Amendment is in order. The 14th Amendment was passed during the Reconstruction era following the Civil War, when radical Republicans were looking to consolidate their gains in broadening and strenthening the power of the Federal government over the states.
The 14th Amendment states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
(The first sentence, of course, is currently creating an issue in immigration law, by making the U.S.-born children of illegal aliens U.S. citizens. It was intended to assure U.S. citizenship for freed slaves, because the importation of slaves had ended in 1808, so that the vast majority of freed slaves had been born in the U.S. But I digress.)
One of the most significant steps in the 14th Amendment is the extension of its prohibitions to the states - previously, Constitutional restrictions had primarily been placed upon the Federal government. In that the Constitution was the organic document forming the Federal government, this was seen as the extent of its authority. The 14th Amendment, however, clearly prohibits state action that run afoul of its meaning: "No state shall...". Hence, my statement above that it represents the radical Republicans during Reconstruction asserting their War-won powers over the several states.
There is a long history of litigation and Supreme Court decisions following in the wake of the 14th Amendment. The earlier decisions primarily had to do with discrimination against African-Americans, ranging from the 1896 Plessy v. Ferguson case in which the Court upheld a Louisiana law that required segregation in railroad cars, to the landmark 1954 decision in Brown v. Board of Education of Topeka, Kansas, where the Court struck down segregation in public education.
More recently, the 14th Amendment ideas of Equal Protection and Due Process of law have been extended to other areas of alleged discrimination. One case pertinent to the present issue is Lawrence v. Texas, in which the Court struck down a Texas law that had made homosexual sodomy an illegal act. The majority opinion struck down the law on substantive due process reasons, because it found no state interest in outlawing adult consensual sexual acts done in private. Justice O'Connor's concurring opinion, however, asserted Equal Protection grounds; she found the law invalid because it made homosexual sodomy criminal, but not heterosexual sodomy.
The Court has not explicitly extended "suspect class" status (a class for whom a diferentiation in law will be suspected of discrimination) to sexual orientation thus far. Two of the Lawrence dissenters, Justices Scalia and Thomas, remain on the Court for the foreseeable future. Scalia argued that state laws against bigamy, incest, prostitution, bestialitym and obscenity were based upon moral choices which had formed the basis of earlier Supreme Court decisions validating such laws. He argued that the Court in deciding Lawrence had "largely signed on to the homosexual agenda. He averred that he had "nothing against homosexuals...promoting their agenda through normal democratic means." Justice Thomas found the Texas law "uncommonly silly", but nonetheless voted to uphold it because he did not see a Constitutional "general right to privacy, or a relevant liberty interest in the Constitution.
Justice Scalia's reference to the LGBT lobby pursuing its agenda through "democratic means" would appear to have a direct bearing on the California Proposition 8 vote. In other words, that phrase would seem to make him more likely to uphold a choice by the voters of a state than to apply Constitutional grounds to invalidate the outcome, particularly where there are no decisions on point from which the doctrine of stare decisis (deference to existing precedent) would apply.
This will be a significant litigation to watch as it makes its way through the Federal court system. A decision ultimately by the U.S. Supreme Court could potentially impact all of those states that have passed ballot initiatives banning gay marriage, and I suspect that the very fact that there are several public votes rejecting gay marriage will have no small impact, at least on the conservative members of the Court.
I would hope that the proponents of Proposition 8 would adopt a somewhat simpler approach to the argument, that simply being that the people have spoken by their votes, and the Courts should not act as super-legislatures to override their vote in the absence of a clear Constitutional right to marriage, which does not exist. Marriage, insofar as it is a legal state of being, has always been a province of state law - such things as age to marry, anti-incest laws, blood tests, waiting periods, issuance of marriage licenses, etc., have always been a state matter, not Federal. So, the definition of who can enter into a state of matrimony should be left to the states to decide.
The moral argument, and the damage to children argument, no matter how strongly we believe in them, will really not hold much traction in the Federal courts. Given the abysmal record of heterosexual marriages in terms of divorces, abuse of children, and many other societal ills, it is an impossible argument to make in a secular court that there is a clear societal advantage to marriage being only a heterosexual institution, because the rebuttal is so easy to offer. Likewise, objections on religious grounds will not gain much traction, either, given the so-called notions of separation of church and state. Rather, the argument should be made simply upon the rule of law - there is no rational basis Constitutionally, under the Rule of Law, for a Court to substitute its judgment for a vote of the people.