What Judge Vaughn Walker and His Ruling Mean for Gender and Marriage

U. S. District Judge Vaughn R. Walker recently struck down California's Proposition 8, an amendment to the California constitution, passed by the voters of California in November 2008, which limited marriage to one man and one woman. Judge Walker's ruling strikes down Prop 8 and opens the door once again to same sex marriage in America's most populous state.

Proponents of same-sex marriage immediately declared a major victory, and understandably so. Walker's ruling is indeed landmark. Not only is its policy impact enormous, but it represents one of the most sweeping declarations in favor of same-sex marriage thus far given by a public figure.

While gay rights supporters are understandably thrilled by this turn of events, as well as a recent ruling against the Defense of Marriage Act (DOMA) by a Massachusetts-based federal judge, I would like to respectfully raise some questions and concerns as our nation moves toward what seems an inevitable, national acceptance of same-sex marriage and the full normalization of homosexuality in American culture.

Before raising these concerns, let me say that I deplore the persecution and mistreatment of gays and lesbians. If people wish to pursue the gay and lesbian lifestyle, they should not face ill treatment, persecution, or brutality for doing so. Sadly, in many parts of the world, gays and lesbians are busy fighting for their lives, let alone marriage or civil union rights. Uganda is a sad example of this, as is Iran.

While I detest the mistreatment of anyone, whether the person be homosexual or heterosexual, I nevertheless must ask that we consider the following questions and issues as we move forward:

1) Will our nation truly be allowed to have a civil, respectful discussion of homosexuality in general and same-sex marriage in particular?

On the one hand, you've got reprehensible anti-gay extremists, such as those in the Westboro Baptist Church cult, that proclaim "God hates fags" and who protest at funerals of service members, because they believe war casualties are just "punishment" by God for the presence of homosexuality in America.

At the other end of the spectrum, you've got gay rights activitists who heckle and shout down speakers who oppose their agenda. There have been numerous examples of this sad disregard for civil discourse on our college campuses. In addition, many gay rights activitists don't hesitate to label those with whom they disagree as being "bigoted" or "guilty of hate" or "homophobic."

If gay rights are important issues for our society to consider (as I believe they are), then we must have a polite, civil, respectful discussion on those issues, including and perhaps especially same-sex marriage. And that discussion must take place with the mutual understanding on both sides that there are good, decent, and honest people who come down on various sides of this issue.

For my own part, I am presently opposed to same-sex marriage, but I do not hate gays and lesbians. One can disagree with someone else without hating that person. I disagree with smoking, but I don't hate those who smoke. It is possible to have a respectful disagreement, or at least it should be.

2) Do supporters of same-sex marriage really want to win their victories at the cost of democratic, popular rule?

While supporters of same-sex marriage have won some legislative victories (such as in Vermont and the District of Columbia), most of their advances have been seen in the courts. This has meant increased judicial activism and a usurpation of the rights of the legislative branch and of the people. Judge Walker's ruling is perhaps the most egregious example of this. In the stroke of a pen, he cancelled out the wishes of a majority of Californians by striking down an amendment they chose to put in the California constitution.

I understand the impulse to get your victories anyway you can, but judicial activism strikes at the very heart of the American system. When our Founders fashioned the U.S. Constitution, Alexander Hamilton explained in The Federalist that the judiciary would be the "weakest" of the three branches, because it possessed no "will" of its own. In other words, judges are not to have their own agendas. They are to be the umpires and referees of society, making sure everyone plays fair, but not pushing themselves into the game or advancing their own interests.

If we ignore our Founders' intent on the nature of judicial authority, then we are elevating unelected judges to the same level of power as elected legislatures or as popular votes. In some cases, judges have even more power. And without proper accountability, this turns the judicial branch into an oligarchy, which is not something the Founding Fathers would have accepted or wanted. And it's not something we should want or accept either.

3) If marriage is no longer defined by gender, why should we define it by a number?

I realize that gay rights activists get upset when their fight is equated with polygamy. Please hear out my point on this. I understand that most gay couples wanting to get married are not asking for some kind of wide-open, polygamous situation. I'm not equating their desires or their agenda with that of polygamists. And I certainly am not implying that gay couples represent the kind of emotional abuse or religious/social oppression far too evident in many polygamous households. Nevertheless, there is an angle to this that should be explored.

Our society is increasingly accepting same-sex marriage on the grounds that two consenting adults who love each other should be allowed the same rights and privileges of anyone else, regardless of gender. As such, our society is indeed on the verge of removing gender as a factor in marriage. Judge Walker's ruling said it quite clearly: "Gender no longer forms an essential part of marriage; marriage under law is a union of equals."

Okay, let's say that's where we want to go. Let's say that we all agree on that. If so, let's take the logic to its logical conclusion. If marriage is a "union of equals" and gender is "no longer an essential part," then why limit the insitution to just two consenting adults? What about three or four adults who really love each other and want to get married?

Now, again, I understand that the government should not sanction a relationship based on abuse, manipulation, or religious oppression. But what about something along the lines of the 1982 movie Summer Lovers, starring Darryl Hannah? What about three or four people who really do care about each other, have feelings for each other, and want to have the rights and privileges of marriage bestowed on them?

If we're no longer going to respect the traditional gender-oriented definition of marriage, we are on very shaky ground to then insist on a numeric-oriented definition of marriage.

4) What accommodations, if any, will be made to organizations, businesses, and/or individuals who have religious or moral objections to same-sex marriage?

Much of the rhetoric behind the same-sex marriage movement has been along the lines of "It doesn't hurt your marriage to have gays marry." I would bet that most heterosexuals who support homosexual marriage do so on the grounds of "live and let live."

Well, in that case, it's very reasonable to ask what accommodations will be made for those who wish to raise their children, run their companies, manage their organizations, or lead their churches, according to traditional family values? Recent legislation and court rulings endorsed by gay rights activists would indicate the answer to that question is "none," which raises questions as to how sincere and consistent they are when they argue for diversity of thought and lifestyle.

Will religiously-oriented businesses (like Chik Fil-A), hospitals, religiously oriented educational institutions, and/or faith-based non-profit organizations be obligated to extend the same employment benefits to same-sex couples as they do to married couples?

Will television and radio stations, including those owned and operated by people of faith, be obligated to broadcast programs or shows that depict situations or lifestyles they consider objectionable?

Will military chaplains be required to perform same-sex marriage ceremonies, even if their personal or denominational beliefs say otherwise? Will churches, at some point down the line, face the possibility of losing their tax exempt status if they decline to marry same-sex couples or admit gay couples into church membership?

These questions are valid. Legalizing same-sex marriage isn't simply about letting other couples live how they wish to live. Legalizing same-sex marriage will result in a major, cultural transformation in our society, one that could compromise the rights and privileges of other people, who wish to live their lives as they wish to live.

I realize that this article will probably draw the typical flames and arrows so typical of today's less than civil discourse on the Interent. I can only hope that readers understand that I've written this piece not to be inflammatory or to cause anyone any harm or offense. I merely think it's reasonable to ask some tough questions before we embrace such a sweeping and dramatic change.

Marriage is one of the oldest and most enduring institutions in human history. In fact, it is arguably the most enduring institution. I think we should be very careful before we go about changing and redefining it. We may find the consequences to be quite unpleasant.