Yesterday a federal judge ruled (full ruling) that an amendment to the California state constitution passed by the California voters, which defined marriage as solely between a man and a woman, was unconstitutional. Peculiar to the case is that the judge himself, Judge Walker, professes to be homosexual. Here are some key statements from his ruling:

“Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.”

“Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted.”

“The gender of a child’s parent is not a factor in the child’s adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent.”

“Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.”

“Gender no longer forms an essential part of marriage; marriage under law is a union of equals.”

He Used Indistinguishable Roles as a Primary Basis of His Decision

I read the judges reasoning for the decision. Here’s how he argued it. The fourteenth amendment requires equal rights for all Americans. At one time, people had different rights depending upon race. The fourteenth amendment corrected that violation of rights. All people have the right to get married. At one time states would not allow interracial marriage. That too was corrected. At one time, there were unequal roles in marriage, a husband and a wife. We too have corrected that. We now have the marriage of two equals with no distinguishable roles. Husband and wife have equal roles, so role has no role in marriage today. Since role doesn’t matter, equals can marry—man with woman, man with man, woman with woman. All people’s rights to marry the equal of their choice is protected by the constitution. Not protecting everyone’s right to marry the equal of his choice violates the fourteenth amendment. California’s constitutional amendment defining marriage is unconstitutional.

That’s, in essence, Judge Walker’s argument. I think it will be supported by the appeals court. It will be overturned in the Supreme Court by a 5-4 vote. Kagan will replace another liberal judge. That won’t affect the balance of the court. Justice Kennedy is now the swing vote, since O’Connor left the court.

How I Would Argue Legally Against Judge Walker’s Ruling

The constitution limits the power of the federal government to those powers enumerated in the constitution. Marriage is not in the constitution, so it is a power delegated to the states. California has authority to define marriage. California has defined marriage as only between a man and a woman. There is long time precedent for marriage only between a man and a woman. Judge Walker has violated the separation of powers between the federal and state governments. The federal government has no power to intervene in the definition of marriage unless someone’s constitutional rights have been violated. A federal judge has taken away the rights of the California voters to decide what marriage is. The federal government has overstepped its constitutional limitations by intervening in this case.

Restricting marriage to a man and a woman does not violate rights protected by the fourteenth amendment. The fourteenth amendment was adopted in 1868 shortly after the Civil War. Here’s the part of section one with the applicable text:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Certain rights of individuals do not exist under due process of law. Thomas Jefferson wrote at the beginning of the Declaration of Independence that people are entitled certain rights according to “the laws of nature and nature’s God.” The constitution does not protect a right of polygamy because that right is not an inalienable right of an individual. Under law, young children do not have the right to marry. Marriage has also always been limited by gender. No right for men to marry men or women to marry women has ever even existed in any civilization.

As well, the rights of the many are violated by the few. If what Judge Walker has ruled is true, all people must recognize same-sex marriage. The legal recognition of same-sex marriage condemns the moral opposition to it. The courts would in essence be deciding for all men that same sex marriage is in fact marriage.

This ruling alters the scope of individual rights. Rights may no longer spring from moral concern. Judge Walker has delegitimized moral judgment as a basis for state law. Secular philosophy becomes the only acceptable basis for the limitation of rights. States have always been able and always should be able to use moral judgment as a basis for making and enforcing law.

Personal Observations

Homosexuality has escalated with the loss of distinctions between men and women, both in role and appearance. Churches are in part blame for this. Many churches have slid away from the biblical emphasis on male headship and the preservation of designed distinctions in dress between male and female. Roles have also been blurred with women in the workplace. Men are more effeminate than ever. President Obama won the female vote 56% to 43%. He won 49% of the male vote. Women outnumber the men. Woman’s suffrage has turned the control of the country to women.

Thomas Jefferson wrote the Declaration of Independence. It is Declaration language that we see in the fourteenth amendment with the terminology “life, liberty” and “equal protection.” The fourteenth amendment recognized that the Creator endowed non-whites as well as whites “certain inalienable rights.” Does natural law or God’s law recognize same-sex marriage? Of course not. Natural law and God’s law condemn homosexual relations, let alone marriage. But our culture no longer recognizes natural law or the law of God. We have become a lawless society. There is no wonder we kill our most helpless citizens, take away private property with the abuse of eminent domain, do not protect our own borders from illegal immigration, and now authorize homosexual marriage.

On the way home from church last night, I turned on the top rated local radio station and the talk show host was taking calls on the ruling by Judge Walker. A caller asked the host where we got our rights from. He clarified by asking where Thomas Jefferson and John Locke believed we got our rights from. The host said with disdain, “nature and God.” This host is an atheist, by the way. The caller asked if Thomas Jefferson got that idea from the Bible. The host exploded. He screamed that Jefferson didn’t even believe in the Bible, that he removed many of the verses from his Bible (which is true) and that he only followed the teachings of Jesus. And then the host said that Jesus didn’t even say anything about marriage. The caller responded, “He did too,” and then he proceeded to tell the host what Jesus said from Matthew 19, that Jesus went back to the original intention of marriage between a man and a woman. The host got more angry and yelled at the caller that Jesus did not say anything about that—He said nothing of the kind! Of course, the caller was right. But that was no big deal to the host. The caller was talking very calmly the whole time.

I tell you that story because I thought it was an interesting point from the caller. Thomas Jefferson respected the teachings of Jesus. He wrote the Declaration. The fourteenth amendment took in the thoughts of Jefferson into its text. No one should read “rights” contradicted by Jesus into the fourteenth amendment. No one who wrote the fourteenth amendment would see any right to same-sex marriage in what he wrote. Those who voted for the amendment to the constitution would never have said that it gave a right to same-sex marriage.

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Here’s an article from the Witherspoon Institute, seeing this much the way I analyzed it above.