Prop 8 Trial Decision is Radical, But Instructive

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Walker Overreaches in Claiming Cal Voters Irrational

by William B. May

SAN FRANCISCO, August 5, 2010 (revised) -- On Wednesday, August 4, Federal Judge Vaughn Walker overturned Proposition 8 and the decision of more than 7 million California voters who passed it in 2008.  He did this in a most radical way claiming that there is no possible rationale or unique value for an institution that unites a man and a woman with each other and any children who come from the union. 

While we are very disappointed, we were not surprised. Neither are we discouraged. The Prop 8 Defense team has built a strong case for appeal and we are confident Walker will eventually be reversed. His decision, however, is reason for grave concern, not only because if its radical nature and conclusion, but because the line of reasoning he laid out so clearly is not unlike what has led many young people to abandon marriage in favor of cohabitation and children born outside of marriage. 

From Walker

During the trial, Walker demonstrated quite a bit of confusion about the meaning of marriage, the role of procreation, and parenting as a social role. Many of his ideas are based on false premises and assumptions that are disconnected from the reality of the human person. 

Those who have been through CCG’s Stand with Children Training and Formation Program are well familiar with these pitfalls.  The trainings help people identify times during which we all unwittingly say things that undermine the very truths that we believe about marriage and family.  This new awareness helps people improve their communications about marriage, family and human sexuality starting with their own families and circles of friends.  The views expressed by Judge Walker are so pervasive in our culture that, while some people may be startled by the conclusions demonstrated in Judge Walker’s opinion, some friends and family members will be quite familiar or even agree with this line of reasoning.  All of his conclusions are in conflict with reality and the truth about the human person (see quotes here).

The Decision

What also makes Walker’s decision so startling is by his comments during the closing arguments he acknowledge that he is very aware that he is trying to force major changes against the will of the majority, similar to what occurred in Roe v. Wade.  Indeed, this case could be the Roe v. Wade of marriage and family.  He also recognized that overturning Prop 8 would mean the end of the discussion about the public interest of "traditional" marriage, wresting the issue completely from the hands of the voters.

In striking down Prop 8, Walker ordered the state to remove restrictions that prohibit same-sex couples from receiving marriage licenses, but the Prop 8 Legal Defense Committee immediately filed a motion to stay the judge’s order pending appeal.  The judge has requested written arguments from both sides by August 6, and asked the clerk to delay implementing his order until he makes a decision on the request for a stay.

Marriage between a man and a woman is a reality of creation whether one believes in God or not. It takes one man and one woman to continue society, even with artificial conception. The one flesh union is a visible reality as everyone carries the flesh of their mother and father.

Marriage predates revelation and originated society, not the other way around. Civil law and religions can only recognize that reality, and when they do that, it becomes an institution of society that unites a man and a woman to each other and with any children that come from the relationship.

When civil law recognizes marriage, qualifications are set by legislatures based on the common good. These include: age, consent, kinship, sex, and previous marital status.

Religions provide a deeper understanding of the beauty and dignity of the institution. In fact the Catholic Church recognizes it as a sacrament that reflects the inner life of the Trinity, and Christ’s relationship to the Church.

In his 136 page decision, Walker:

  • Found the voters were irrational and discriminatory in defining marriage between a man and a woman through Prop 8;
  • Asserted that citizens have no right to organize secular society unless their decisions can be supported by scientific and sociologic evidence – common sense is not enough;
  • Created a new definition of marriage;
  • Dismissed the right of children to know and be cared for by their mothers and fathers and to live in a united family.

The astounding and most perplexing thing about the decision is that Walker essentially maintained California voters must be discriminatory and bigoted in passing Prop 8, because, he cannot find any rational reason to support “traditional” marriage.  In the process he ruled out common sense and found all of the defense’s witnesses non-credible or unqualified.  This is a clear case of overreaching and perhaps will be a factor in the credibility of his decision on appeal.

Walker laid out his understanding of marriage in his decision more clearly than any other judge we have seen, maintaining that marriage is merely a committed relationship for the private interests of adults.  His understanding, while supported by much of the culture, is in direct contrast to the “traditional” definition of marriage as the union of a man and a woman to each other and to any children who come from the relationship.

To support his redefined marriage, Walker concluded that mothers and fathers are of no consequence to children, and, therefore, promoting an institution that unites children with their mothers and fathers is not a rational reason for discriminating against gays and lesbians.  Interestingly, this opinion mirrors the policy of the Obama Administration as expressed in a recent brief it filed in connection with a Southern California case.

As Walker claimed discrimination and bigotry for the passage of Prop 8, a recent exit poll analysis published by the LA Times showed the margin of victory for Prop 8 came from over 600,000 former supporters of same-sex "marriage" who changed their minds when they learned about the consequences of redefining marriage.  If they had once supported same-sex "marriage", it is pretty difficult to claim those voters were motivated by bigotry.

Looking to the future of the legal battle, Andy Pugno, general counsel for, the official proponents of Prop. 8, said, “At trial we built a solid record to show that marriage has served as the foundation of the family and society as a whole, has universal functions and features attributable only to unions between a man and woman, has been defined in both law and language as a union between a man and a woman, and acts as the predominate relationship in which to create and support children. We will be actively appealing today's ruling."
Responding to this latest round of judicial activism Raymond L Flynn, former U.S. Ambassador to the Vatican and CCG Adviser, added, "America is at a political crossroads. The people must now decide for themselves if they want unelected and unaccountable judges setting policy and overruling the will of the American people. Elections have consequences." 

New Definition of Marriage

Judge Walker’s version of marriage is merely an institution recognizing the committed relationships of loving adults, here is his new definition of marriage:

"Marriage is the state recognition of a couple's choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependants."

"In addition to dismissing the traditional definition of marriage," lead Prop 8 defense counsel, Charles Cooper said, "the judge incredibly found that children don’t need fathers. Or mothers. To state this proposition is to refute it.  And the court also found that there is no benefit whatsoever for a child to be raised by its own biological parents.

"Fortunately," he continued, "the Constitution does not require the people to substitute the social science musings of gay rights activists for common sense."(see complete statement from Charles Cooper )

Responding to this latest round of judicial activism, CCG Adviser Raymond L Flynn added, "America is at a political crossroads. The people must now decide for themselves if they want unelected and unaccountable judges setting policy and overruling the will of the American people. Elections have consequences."  Flynn is former U.S. Ambassador to the Vatican and the most popular mayor in the history of Boston.

While this decision is certainly viewed as a setback, it also provides some opportunities. In one sense, we owe a debt of gratitude to Judge Walker.  Never has anyone so succinctly defined marriage according to the cultural understanding than did Walker in his decision.  It is now clear to everyone, if it was not before, that we are dealing with a culture containing two conflicting definitions of marriage.

Secondly, Judge Walker’s decision should create a new sense of urgency among California voters for making their voices heard in a coordinated, positive way.  This is not a time for pointing fingers or protesting.  Rather, we need to focus the energy we now feel into a positive response under the umbrella of Stand with Children.  This is a call to arms in a positive sense because we are fighting for what we are “for” rather than what we are “against”.  Walker’s decision confirms the need for the Stand with Children approach for rebuilding a marriage culture.

Join the Stand with Children network by applying to participate in a training in California (sign up for CCG emails to stay informed as new trainings are added). Those interested in participating in a local formation community for the evangelization of culture respond here selecting the “Stand with Children” category.

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