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Yes, Judge Walker, Gay Marriage is Social Change

Posted on August 5 2010 8:56 am
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by B. Daniel Blatt

As I began reading Judge Walker’s opinion yesterday overturning Proposition 8, I had some indication I might like the opinion.  That thought cheered me for a moment as it would be a lot easier socially to support the decision than to oppose it.  But, the more I realized I could never support an opinion with sloppy jurisprudence and such a casual dismissal of sexual difference (even couching it in the trendy term of “gender”).

So casually did the judge address some very, serious issues that Dale Carpenter feels he practically invites repeal:

But he then concludes that because laws limiting marriage to opposite-sex couples are not rational, “the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.” If that’s true, why address the issue at all? He may be hoping, in maximalist fashion, to lay some foundation for future courts to apply strict scrutiny to sexual-orientation discrimination. But at the same time, leaving the intellectual structure unfinished, he invites a higher court to undermine it.

Walker then rejects as irrational each of the reasons offered for Prop 8, including tradition, procreation, and the need to proceed cautiously and incrementally on matters involving important social change. The biggest difficulty with his argument on these matters, as I see it, is that he thinks of gay marriage as a technical change in the law about which there is no need to proceed cautiously. California has enough printers and paper to issue the additional marriage licenses, so what’s the big deal?

I had the same sense as I read the Judge’s “Conclusions of Law”, that he was acting as if sexual difference were merely incidental to marriage rather than one of its defining aspects.

Plain and simple, gay marriage represents a major social change.  Now, I happen to think that if gay couples understand and accept the obligations of marriage, this social change will be a good one, but it remains a social change.   And we shouldn’t shy away from seeing it as such.  Nor should courts reduce that social change to a minor, technical adjustment.

Read more at the Gay Patriot

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