Judge Walker’s New Marital and Constitutional Order

by Fr. Roger Landry | August 16, 2010 10:00 am

Wedding Rings[1]If pictures are said to be worth a thousand words, political cartoons are often far more visually voluble. In the immediate aftermath of Federal District Judge Vaughan R. Walker’s outrageous August 4 decision in San Francisco declaring unconstitutional California’s 2008 Proposition 8 — which formally enshrined marriage as the union of one man and one woman — two cartoons summed it up. The first one featured the calligraphic initial words of the Constitution, “We the People…” crossed out and replaced by the cursive words, “I, Judge Walker…” The second presented the author of the U.S. Constitution, James Madison, seated at a table in Philadelphia as he was drafting our nation’s foundational document. One of the founding fathers surrounding him is pointing at the parchment underneath Madison’s feathered pen and declaring, “Let’s put gay marriage here, between abortion and socialized medicine.” Both cartoons make the same essential point: that modern judges, like Judge Walker, are inventing “constitutional rights” that not only are absent from the text of the Constitution and its amendments but would be totally opposed to what the founding fathers and amenders intended and enshrined.

Judge Walker’s concoction of a right to same-sex marriage did not come as a surprise to those who had been following the court case closely, because it was well-known he had an enormous conflict of interest and had demonstrated throughout a strong bias in favor of those trying to overturn Prop 8. The San Francisco Chronicle had noted in February that it was an “open secret” that Walker was gay and a recent Los Angeles Times article quoted his legal colleagues who said that the judge normally attends bar functions with a male physician as his amorous companion. The apparent fact that Walker is gay does not preclude that he could have been an impartial judge over this case, but the fact that he apparently has a regular male partner and may be in a long-term relationship raises the legitimate question of whether he might himself have any personal interest in entering into a same-sex marriage in California or in ending what he might believe is a bias in favor of heterosexual love and unions; in such a case, federal law requires that a judge should recuse himself lest “his impartiality might be reasonably questioned” because he has an interest “that could be substantially affected by the outcome of the proceeding” (28 USC § 455).

His inequitable and brazen pretrial and trial conduct both gave substance to these concerns and harbingered his eventual outlandish judicial opinion. As Ed Whelan of the Ethics and Public Policy Center has detailed, Judge Walker’s skewed umpiring began when he surprised even the lawyers trying to overturn Prop 8 by saying that he did not want to hear only the legal issues involved in the case, but the putative “factual issues” about attitudes relative to same-sex relationships, marriage, and the subjective motivations of the more than seven million California voters who supported Prop 8. In order to pull that off, he ordered the proponents of Prop 8 — and not their opponents — to turn over all their donor lists, emails, and other internal communications. The financial and personal harassment donors and supporters of Prop 8 had already suffered had been well-documented; this court-mandated discovery was bound only to make that worse. Three-Clinton appointees on the Ninth Circuit Court of Appeals summarily overturned this violation of the rights of political speech and free association, but Judge Walker wasn’t finished. Next, violating clear federal court guidelines, he made the decision to televise the trial, despite the legitimate arguments that it would lead to further abuse and harassment witnesses in favor of Prop 8. That decision was stayed by the Supreme Court, which sternly reprimanded Walker for his lack of impartiality. Summing up Judge Walker’s conduct, Whelan concluded, “Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors.  Walker’s actions, taken together, have only one sensible explanation:  that Walker has been hell-bent from the outset to use the case to advance the cause of same-sex marriage.”

In the August 4, 138-page opinion that concluded the trial, Judge Walker not only overturned the will of the people of California with regard to marriage, but declared that all such opposition to the marriage of those of the same sex lacks any rational basis at all. For years, those with same-sex attractions have labeled any opposition to the gay lifestyle as “homophobia,” which means literally an “irrational fear” (phobia) of the persons or behavior of those with same-sex inclinations; no rational basis will for opposition to same-sex behavior will even be considered. Judge Walker’s decision is attempt to put that prejudiced idea into legalese.  

His bias was on full display in a section called “credibility determinations” in which he weighed the believability of those giving testimony on either side. He found those who testified in favor of same-sex marriage “experts” who were “amply qualified to offer opinion testimony on the subjects identified.” Those opposed, he said, had opinions that were “unreliable and entitled essentially to no weight.”

When he got to the “findings of fact,” he routinely stipulated and interpreted things in the most favorable light for those advancing same-sex marriage and called them “facts.” Here are examples of many of his facts and findings, which you are urged to read slowly and consider individually: “homosexual conduct and attraction are constitutionally protected”; “no meaningful differences exist between same-sex couples and opposite-sex couples”; “gender no longer forms an essential part of marriage”; the exclusion of same-sex couples from marriage is an “artifact of a time” that “has passed”; same-sex unions “encompass the historical purpose and form of marriage”; marriage has nothing essentially to do with opposite sex relationships or the procreation or education of children from that union, but is only “the state recognition and approval 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 dependents”; “allowing same-sex couples to marry has at least a neutral, if not a positive, effect on the institution of marriage” and “will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite sex marriages”; “the gender of a child’s parent is not a fact in a child’s adjustment,” “children do not need to be raised by a male parent and a female parent to be well-adjusted,” and “the genetic relationship between a parent and a child is not related to a child’s adjustment outcomes”; “that the majority of California voters supported Proposition 8 is irrelevant”; and “religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.”

This last “fact” has been viewed by some legal experts as an attempt to establish grounds eventually for declaring that Christian teaching about same-sex activity — and, with it, any opposition to same-sex activity — is in fact maleficent and needs to be constitutionally curbed. When Judge Walker presented “evidence” for this “fact,” he made these critics’ legal interpretations credible. He quoted, presumably as an uncontested example of the harm, the Vatican’s 2003 document, “Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons,” signed by the future Pope Benedict XVI, which reiterates the Church’s teaching that “homosexual acts goes against the natural moral law” and that the homosexual inclination is “objectively disordered.” He also cited “expert” witness Gary Segura, who testified, “Religion is the chief obstacle for gay and lesbian political progress,” a progress that it would be unsurprising to find that Judge Walker and other eisegetical judges may consider inexorable and “constitutionally mandated.”

The dangers posed by Judge Walker’s decision, therefore, go beyond what constitutes marriage and family and which understanding of marriage and family needs to be promoted and protected for individual flourishing and the common good. They include perils to religious freedom as well as to the fundamental underpinnings of our constitutional republic, when the opinion of one conflicted judge fabricating constitutional violations takes on greater weight than the vote of seven million of his fellow citizens. It cannot be overturned on appeal fast enough.

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