Vaughn Walker

Vaughn Walker is a travesty of a Judge, as I detailed here.  The latest: Judge Walker's ruling against California Proposition 8 proponents, who simply exercised their constitutional right to amend their State constitution to define marriage as between a man and a woman.  For Judge Walker the citizens were not exercising their right to self-government, but diabolically seeking to advance "the belief that opposite-sex couples are morally superior to same-sex couples." "Diabolical" because none of the principle advocates for Proposition 8 actually voiced such a rationale.  Nevertheless, their real agenda was secretly injected into the consciousness of the public which voted overwhelmingly in favor of Proposition 8.  In the nick of time, however, Judge Walker - who apparently can see into the very souls of the people around him - discovered the subterfuge.  This is what our Constitutional jurisprudence has come to? Continue ....  In the first place, even assuming Judge Walker's conclusions are correct, the intentions of the advocates of Proposition 8 tells you precisely nothing about what each voter thought about the matter within the confines of the voting booth.  So, what evidence did Judge Walker review about the motivations of the 7 million voters who favored Proposition 8?  Zip, zero, nada.  The only competent evidence would be the personal testimony of the voters.  Did 7 million witnesses tromp through Judge Walker's court? Of course not. In the second place, voter intentions are Constitutionally irrelevent. A law either discriminates invidiously or not.  If it doesn't, then what and why the voters passed the law is not important.  The Judge is here confusing psychological intentions with public policy.  Mouth-breathing racists might be in favor of the Welfare State, because they know what social science has told us for more than 3 decades, that welfare has destroyed the black nuclear family and relegated generations to a cycle of crime and poverty.  But such intentions, if true, would not matter a wit in any Constitutional challenge to the Welfare State. But this leads us to another rather remarkable point we glean from Judge Walker's opinion.  The Judge is parochial and ignorant when it comes to history.  Marriage as an institution has been around for 1,000's of years.  It is Judge Walker's opinion that the essence of marriage this entire time, across a multitude of cultures and times, has been simply a tool to cudgel and vilify gays?  Seriously? For a supposedly enlightened, educated man, this is nothing short of an embarrassment. His historical ignorance probably explains why he overlooks a simple, important point.  California's marriage licensing laws did not create the institution of marriage, it simply regulated an already existing arrangement.  As such, restricting marriage licensing to a union between a man and a woman is not official discrimination at all.  Statutes outlining how and under what circumstances a man and a woman may marry is simply a public regime deemed necessary for the regulation of an already existing cultural organization. One might well say that the FDA discriminates against candle stick makers because it doesn't allow them to be called butchers.  Butchers and candle stick makers existed before the FDA came into existence, and it was only because butcher's were providing food products to consumers that it was deemed important to regulate them.  In this context, what candle stick makers were doing was simply irrelevant.  Similarly, at the time marriage licensing came up, it was the perceived need for some regulation of marriage that was the impetus for such laws.  Gay social arrangements, whatever they were, were not being discriminated against, they were simply irrelevant to the whole business, as irrelevant as the social arrangements of butchers and candle stick makers.  And bakers, for that matter.  Finally, our benighted Judge misses something else important.  Gays in California (and every State of the Union) have every right to get married, whenever they want, with whoever they want.  They can go out and start their own church  - or get a friend, like Joey Tribiani of Friends, to go on the Internet and become a bona fide priest of the "Church of Agnostic Hope" or some such  -  get a group together and have a solemn ceremony.  Bingo, marrried.  And then they can cohabitate to their hearts content and tell everyone that they are married.  Sure, this all may violate some technical provision of some licensing laws.  But some States don't even have licensing requirements, others have them but permit flexible exceptions (common law marriages, for instance), while others have them and do not bother to enforce them.  In any case, the purpose and intent of most all licensing statutes is to make sure the parties are of majority age, free of disease, etc (see, e.g. a Mississippi statute here).  Private groups doing private things is just not worth the prosecutorial effort; and in any case, any group that wants a substantial newly minted right ought to have to fight a little bit against the existing order of things, don't you think?  How do you think Mormons got married (after they renounced polygamy) all those years?  You think they could get a main stream church to marry them?  No; so they solemnized their own marriages in their own churches, and after years Mormon marriages became a substantial cultural institution and recognized and respected everywhere.  Not least because the incident of divorce among Mormons is substantially lower than the mainstream Christian churches. So, in the American spirit of things, I say let gays be gay in whatever way they want to be gay.  But let's not let them use the good offices of an unofficious official like Judge Walker to trample on the democratic process.