From Judge Vaughn Walker’s opinion on the Proposition 8 case:
Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate. (p. 132)
California’s obligation is to treat its citizens equally, not to “mandate [its] own moral code.” (p. 133)
The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. (pp. 133-134)
Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. (p. 135)
Is there now a wall of separation between morality and state? Where in the Constitution (or even in Jefferson’s letters) do you find that?
August 5th, 2010 | 10:59 am | #1
It would seem Judge Walker’s assertions regarding legislation based on moral disapproval is an explicit rejection of the entire basis of our legal system, particularly our criminal justice system.
August 5th, 2010 | 2:22 pm | #2
Manhattan Declaration.
August 5th, 2010 | 4:08 pm | #3
Excuse me!?
“California’s obligation is to treat its citizens equally, not to ‘mandate [its] own moral code.’ (p. 133)”
Is not the word “obligation” a moral term and is not the insistence upon treating citizens equally a moral presupposition?
The nose has left the face!!!
August 5th, 2010 | 7:14 pm | #4
Excellent point, Paul.
Also: is California really obligated to treat its citizens equally? I used to live in California. I had a physician there who was licensed by the state to do things the state would have never allowed me to do. That’s unequal treatment! Some people were allowed to drive cars with sirens and blue lights on the roof, but I never got to do that. That’s unequal treatment! I visited a prison in Chino where some citizens were treated very unequally. Call me a bold gambler if you will, but I’m willing to bet Judge Walker has actually assigned some people to be treated unequally in that way.
I was thinking of saying “California’s obligation is to treat people equally” is a complete crock; but that seems too dignified a description.
August 6th, 2010 | 9:41 pm | #5
The judge is right. It is clear that our government has no interest in morality….
August 6th, 2010 | 9:46 pm | #6
“Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.”
What have the motives of the people voting have to do with the constitutionality of a law – does it matter whether they flipped a coin, or they did it out of homophobia (in a real sense of complete hatred of homosexuals, as opposed to the common meaning of anything as or more severe as disapproving of homosexual acts) – what matters is whether constitutional rights have been violated.
To bring things like this up is unconsitutional, surely – freedom of believe and expression thereof and free speech include the ballot box.
The matter is “does this amendment violate the constitutional rights of anybody” – the only argument for yes that I can come up with is the pursuit of happiness.
California meets it’s ‘obligation’ to treat people equally wrt marriage with prop 8 in place (and did with the old law that got overturned by the state judiciary). California provides a legal right to be recognised as taking part in an ancient and universal human institution, with some incentives for doing so. It offers this right to every (I think – there’s definitely no bar on LGBTs) citizen over the age of consent, regardless of whether they want to take up that right or not. No one is barred from marrying under prop 8.
There are restrictions on what marriage is all over the world – pretty much everywhere has a block on incestuous relationships counting and the west has blocks on there being more than two people in a marriage and one person being in more than one marriage at the same time. Likewise you cannot legally marry, pretty much anywhere, a non-human: animal/vegetable/mineral. There is, and never has been anywhere, a right to marry who you want – there are always restrictions.
Relationships have no rights in the US constitution – freedom of assembly, yes, but freedom to have that assembly recognised as what you think it is – no.
August 7th, 2010 | 11:54 am | #7
Douglas writes: “It would seem Judge Walker’s assertions regarding legislation based on moral disapproval is an explicit rejection of the entire basis of our legal system, particularly our criminal justice system.”
The notion of morality is not absent within our legal system, but the laws do not exist for the purpose of imposing Christian virtue on the populace. The language of our Founding Fathers was that the extent of government was to secure the safety and liberties of its citizens.
The alternative is a Reconstructionist’s theonomy.
August 8th, 2010 | 7:23 am | #8
Really? That’s the one and only alternative?
August 8th, 2010 | 5:30 pm | #9
Surely this is fairly straight forward civics? Liberal pluralistic societies shouldn’t legislate one view over another unless there is some public interest. That seems present for licensing physicians, yet absent for licensing marriages to gay couples.
As is clear, there is a widely and sincerely held view that marriage doesn’t need to be between a man and a woman. There’s a similarly widely and sincerely held view that it is. One wonders why the state should get involved in the first place: why not just issue civil unions to everyone, and leave it up to individuals to decide which couples they will recognize as married.
Whilst the state remains involved in this dispute, one can easily see that those who think gay marriage is fine are going to consider their rights violated: the law of the land is telling them that they aren’t really married, and they deserve (at best) a legally parallel but inferior substitute of a civil union. The state needs good reason to hold people in different esteem before the law – the moral convictions of some – or even most – doesn’t cut it.
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