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The title of this entry is, of course, also the title of philosopher Robert Nozick’s famous tome, but I borrow it here because it perfectly describes how different factions are feeling in the wake of Judge Vaughn Walker’s recent ruling  which held that California’s Proposition 8–approved by the State’s voters in 2008 and prohibiting same-sex “marriage”–violates the Equal Protection and Due Process Clauses of the United States Constitution.  (A short-hand of Judge Walker’s legal conclusions can be found here).  Some will think the decision portends the coming of anarchy in this great land because it represents demolition of democracy by judges and the endorsement of indulgence and impulse as the basis for law.  Some will think the decision simply represents a change in state policy that carries no momentous impact.  And some (on the left) will think the decision represents a signpost to the coming utopia of a completely “free” society where morality holds no sway in people’s judgments.  I lean more toward the theory of anarchy. though not in so alarmist terms. 

There have already been several fine commentaries on the decision that have picked it apart piece-by-piece. I will not attempt to add or improve upon those observations. Instead, I want to focus on a single claim from the decision, which also happens to be the central basis of the ruling. Judge Walker stated: “[T]he evidence shows that Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples.”  Judge Walker purported to support this statement with the claim that “the evidence at trial” demonstrated that “the most likely explanation” for the passage of Prop 8 was “a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples.”  (Emphasis added.)

Fundamentally, Judge Walker (who is really a libertarian, not a conservative as some claim) contends that Proposition 8 impermissibly (meaning unconstitutionally) proclaims that intimate heterosexual relationships are “morally superior” to homosexual ones. There are several problems with this conclusion, with the first being that it simply assumes that limiting marriage to a particular kind of intimate relationship represents a statement on the inferiority of all other intimate relationships.  Prop 8 merely defines what the institution of marriage is in the State of California. I would wager that there are thousands of intimate heterosexual relationships in California that (regrettably) do not meet the definition of “marriage” any more than homosexual relationships do.  The only way Prop 8 can lay claim to making a statement of moral superiority is if one views marriage itself to be superior to other forms of intimate relationships. Certainly, society at least used to view marriage in such a light, but there are many today who argue that the concept of marriage is a bastion of a bygone era and it does not reflect the reality of how human beings relate to one another. Indeed, we heard this exact argument from the homosexual lobby for many years before they believed it would be possible to convince society to recognize their relationships as “marriage.”  But we now know that this particular argument was a sham, or at least the homosexual lobby has long-since discarded it. The reason for this is simple: people did not buy it. Indeed, Judge Walker proclaimed in his opinion that “marriage is a socially superior status to domestic partnerships.”  Given the reasoning in his opinion, one wonders what baseline Judge Walker is using to determine the ”socially superior status” of marriage, but in any event his statement confirms that no matter how much marriage has been disparaged in our society, there remains a steadfast belief that marriage is the pinnacle of intimate relationships.  To the Christian this is completely unsurprising because we know God created the institution of marriage and implanted it upon our hearts, but to those who reject Christianity the superiority attributed to marriage must truly be confusing.

Thus, by claiming that Prop 8 embodies a statement of moral superiority, Judge Walker elevates the idea of marriage itself. Using Judge Walker’s logic, one should ask the following question: Why doesn’t the very existence of marriage itself — whether it is defined as solely heterosexual or also homosexual — violate the Equal Protection Clause of the Constitution? Why is the State of California allowed to proclaim a couple that binds itself together through marriage to be morally superior to the couple that lives together outside of the bonds of matrimony? Taking Judge Walker’s reasoning to its logical conclusion, California should not be permitted to single out married couples for special treatment because it raises one class of couples to a status above others.

Of course, the reason Judge Walker does not take his logic to its final conclusion is that it would defeat his purpose and result in an absurdity that no one other than a California judge would accept. Judge Walker’s purpose is to elevate homosexual relationships to the same status as heterosexual relationships in both legal and social acceptance. Because even he knows that the institution of marriage is still venerated in this country (at least in theory, if no longer in practice), one way of achieving the goal of homosexuals gaining complete legal and social acceptance is to allow them to marry just as heterosexuals are permitted to do. Thus, it would not do for him to proclaim that the institution of marriage itself violates the Constitution because it would deprive homosexuals of the status symbol they have been seeking (solely through the courts) for several years. Moreover, declaring that marriage violates the U.S. Constitution is a result that no one would accept. It would be a decision gone too far, laying bare for all to see what Judge Walker is actually doing in this case: inventing the Constitution for his own ends.

There isn’t a scholar on the planet who could claim with a straight face that the generation that crafted the 14th Amendment would have believed that limiting marriage to heterosexuals violates that amendment.  But then, this fact would not deter Judge Walker and his ilk because they believe (for reasons of power and convenience) that it does not matter what might have been constitutional during any previous era. All that matters is what we can make the Constitution mean in our post-modern world to enact social policies through judges that otherwise would never see the light of day. It is Plato’s philosopher-kings writ large, with judges like Vaughn Walker more than willing to fulfill the esteemed role of leader because in his own mind he truly believes he knows better than the people of California how they should live.

But let us again return to Judge Walker’s fundamental premise: that Prop 8′s limitation of marriage solely to heterosexuals represents an unconstitutional statement of moral superiority for the heterosexual “lifestyle.” In fact, he states that “individuals’ moral views are an insufficient basis upon which to enact a legislative classification.”  Following this logic to its conclusion not only would require the abolition of marriage; it would also require striking down any law that can be said to make a statement of “moral superiority.” The problem with such a notion is, of course, that several of society’s basic laws make statements of moral superiority. Prohibitions on murder degrade serial killers. Laws against stealing disparage con men. Punishing arson burdens those crazed by the flame. Why should law-abiding citizens be allowed to proclaim themselves morally superior to those in society who violate these laws with impunity? Ultimately, if we say, as Judge Walker implies, that the Constitution outlaws all claims of moral superiority, then the entire basis of law is unconstitutional. This would be ironic given that the very idea that laws repugnant to the Constitution must be set aside is based on a claim of moral superiority, i.e., that the law of the Constitution is superior to all other law.

The fact is that to legislate is to discriminate. It is irrational discrimination that is repugnant to the Constitution.  This begs the question of what is “irrational” discrimination? The reason we are allowed to proclaim that murder is a moral failure that should be outlawed is because society at large deems preservation of innocent life a rational goal (with the notable exception of abortion).  Preservation of life is a shared value of our society.  We then must ask what is the basis of our shared values? The obvious answer to this question is morality and religion which have been the basis of societal values for time immemorial.  This does not mean, of course, that legislation enacts the precepts of a particular sect of religion.  It simply means that the shared values of a society are nearly always based on common religious and moral understandings which are then, in turn, reflected in the laws of that society.  The Equal Protection Clause itself embodies a shared value based on moral and religious belief.  If one simply argued from a scientific viewpoint, it could easily be concluded that people are not equal in many ways and distinctions could be made for all sorts of reasons.  Hitler’s Germany attempted to set up a society on exactly such a basis.  Yet, Judge Walker specifically states that “moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples,” and that such is an impermissible basis for legislation. 

In actuality, what Judge Walker is saying is that to him moral and religious views are not a proper basis for legislation in this instance because he does not like the result.  The distinction is not rational to him, and therefore it must violate the Equal Protection Clause because the Constitution is what he says it is. In other words, Judge Walker is playing his own game of moral superiority while chastising the people of California for doing the same thing.  Somehow his understanding of “equal protection of the laws” is the value that takes priority over the shared religious and moral views of the people.  But abolishing moral superiority as a basis for decision-making for the many undermines it for the rest.  Judge Walker and his supporters will say that his moral superiority is permissible because he is a judge and his view is enshrined in the federal Constitution, but that is simply playing word games.  Equal protection is a means to an end, not an end unto itself. 

And as any lawyer will tell you, your interpretation of whether a law violates equal protection all depends on what level of classification you employ.  For example, Judge Walker is applying the law to the group of persons involved in intimate personal relationships, regardless of whether they are heterosexual or homosexual.  At this level of classification, he perceives that Prop 8 is unconstitutionally preventing a group of people from sharing in the institution of marriage.  But if you lower the level of classification to all homosexual couples and all heterosexual couples and ask whether each group is being treated equally by Prop 8, the answer is that they are.  Naturally, supporters of Judge Walker will note that the same thing could be done for the period when inter-racial marriages were outlawed in some Southern states, i.e., all inter-racial couples were being treated equally under those prohibitions.  Yet this argument avoids the fact that racial discrimination was already separately prohibited by our Constitution.  Moreover, if you return to the classification of all heterosexual couples, it becomes clear that the misogyny laws did not treat them all equal in terms of marriage. 

The point is that it is always possible to find a violation of the concept of “equal protection” depending on how broadly you are willing to draw the group classification.  The real question is whether grouping people in such a fashion makes sense.  The underlying value-laden assumption of Judge Walker’s equal protection ruling is that there is no distinction between heterosexual and homosexual couples.  This is undoubtedly the politically correct assumption, but it isn’t the rational one.  No matter how Judge Walker and supporters of his decision try to spin it, there are unavoidable differences between the two groups that happen to be based on nature, just as there are unavoidable differences between men and women as groups upon which certain distinctions are rationally made.  (Of course, some feminists vehemently dispute the latter assertion just as much as the homosexual lobby inveighs against the former).  All the while, they ignore the fact that their assertion is based upon a moral proposition just as much as the assertion of supporters of heterosexual marriage. 　

In the end, the proposition upon which Judge Walker bases his opinion may be where our society is headed, but I would much more firmly believe that (though still disagree with it) if it was not being foisted upon the public by judges rather than by votes of the people or their representatives.  The decision and what it represents are indeed depressing, but then, what the Psalmist says is worth remembering: “I would have lost heart unless I had believed that I would see the goodness of the Lord in the land of the living.  I will hope in the Lord and be of good courage, and He will strengthen my heart; yes, I will hope in the Lord.”  Psalm 27:13-14.

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