Some Thoughts on the Prop 8 Ruling

In case you hadn’t noticed, there was a significant ruling in California yesterday.

A US federal judge has overturned California’s voter-approved ban on same-sex marriage.

The judge found it unconstitutionally discriminated against same-sex couples who sought to wed.

The state measure, known as Proposition 8, was passed by voters in 2008. It banned same-sex marriage, although the state offered same-sex civil unions.

Backers of the ban intend to appeal against the judge’s ruling. The case is likely to reach the US Supreme Court.

The measure was passed in a ballot referendum by a vote of 52% to 48%.

Currently, five states and Washington DC allow same-sex nuptials, though many states have enacted bans.

The ruling does not immediately allow California same-sex couples to marry, as US District Judge Vaughn Walker has delayed final entry of his judgement so he can hear arguments on whether to stay the ruling, pending appeal.

Kelvin Holdsworth has a good response for an Anglican revisionist this side of the Pond which gets down to the core of the argument.

Whilst Civil Partnership in this country once appeared quite progressive, it now does not seem to be so. A separate institution for gay couples seems far from satisfactory. Gradually in one place after another, the argument for Equal Marriage is being made and is being won.

And it moves me too. Even though I’ve long been convinced that people need to be treated equally under the law, when victories are won, it is often the words of the judges or politicians which move me even more than those folk who just want to get wed.

So what do I think? A few thoughts…

  1. The fact that the judge ruling in this case was himself gay is irrelevant. If you object to a gay judge ruling in a case about same-sex civil rights then what do you do when a man is accused of raping a woman? Ban a male judge because he might sympathise with the accused or ban a female judge because she might sympathise with the alleged victim? Of course not, and so the objections to Judge Walker being gay are facile (and homophobic).
  2. This ruling is not the end of the matter and there is no doubt that the matter will go to the Supreme Court of the USA via the regional Federal Appeals Court. This means that at some point in the next two years, the USA is going to settle once and for all the matter as to whether same-sex marriage is a federal right. Note though that even if the Supreme Court rules that it is not, that may not stop individual States legislating in favour of such a move. OF course, that is what the Defence of Marriage Act was introduced to avoid and why it caused so much controversy.
  3. The ruling by Judge Walker raises some interesting questions. The plaintiffs argued that Proposition 8 “prevents each plaintiff from marrying the person of his or her choice AND the choice of a marriage partner is sheltered by the Fourteenth Amendment from the state’s unwarranted usurpation of that choice”. One might fairly ask whether the acceptance of such an argument (and this is what Judge Walker did, since his ruling which reads

    “Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as ‘the right to same-sex marriage’ would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy — namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.”

    provides no grounds for rejecting an equal claim by a polygamist or someone wishing to enter a marriage that is disbarred by virtue of being incestuous. I would welcome a discussion below with someone who doesn’t think that this ruling opens the path for legalising such (currently illegal) marriages.

  4. The whole case rests around the relationship between the law and the judicial interpretation of the law and raises issues around jurisprudence and the place of morality within a legal framework. Defendants of Proposition 8 argue that if the will of the people is that gay marriage not be allowed, there is no place for a judge to over-rule such a decision (especially given the place of DOMA in the US legislative framework). Of course, judicial review exists not just to ensure that the law is not broken, but also to ensure that the law is fair. For example, you would expect and hope for judicial review to knock down any law that legalised the murder of Jews, even if it is was voted for by a majority in a state. The problem for Christians is that if we accept this general principle that a reviewing judiciary is a good thing, we have to be prepared to accept such a reviewing judiciary taking a different moral view to the Biblical one. This then raises issues for how Christians interact with a State which does not recognise their moral framework. As I argued last week on Premier Radio, Christians in this country need to accept the fact that we have de facto gay marriage already. Amongst the heathens therefore, what is our place?

Your thoughts?

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