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The Proposition 8 Ruling Is About Personal Affirmation, Not Equal Protection

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Posted on August 12 2010 10:00 am
Walter Hudson is a political commentator and co-founder of Minnesota's North Star Tea Party Patriots, a statewide educational organization. He runs a blog entitled Fightin Words. He also contributes to True North, a hub of Minnesotan conservative commentary. Follow his work via Twitter, Facebook, and YouTube.

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There are two issues in play in the ongoing controversy over U.S. District Chief Judge Vaughn R. Walker’s decision to strike down California’s Proposition 8. The first is the definition of marriage, the issue the proposition was intended to settle in that state. Of greater import is whether state’s have the right to craft family law, or whether the federal government may ignore the plain wording of the Ninth and Tenth Amendments and imply powers from vague constitutional clauses.

These are distinct issues. Judge Walker and George W. Bush’s former Solicitor General Ted Olson have interwoven them. Their constitutional interpretation is guided by their preconceived opinion on same-sex marriage, rather than a genuine attempt to interpret the intent of the law. Because I think same-sex unions are equal to marriage, the due process and equal protection clauses apply. Olson’s attempt to pass this off as anything but judicial activism is mind-numbing. Whether the federal government may intervene in family law is determined by enumerated powers, not a judge’s opinion of a particular contested issue.

Conservative advocates of Walker’s ruling, including NRB’s own Mark J. Koenig, are challenged to explain how their opinion is inherently superior to that of the people of any state. Rather than supply that argument, Koenig dismisses constitutionality as “beside the point” and suggests conservatives back a federal law defining marriage to include same-sex unions as some kind of political strategy.

It’s the right thing to do, if we conservatives wish to credibly claim intellectual honesty in our arguments for limited government and maximum freedom and personal responsibility.

I’m not sure how a federal law dictating the social policy of each state upholds “limited government and maximum freedom.” The principle of limited government does not preclude a state from crafting its family law. On the contrary, it enables it.

The only intellectual dishonesty here is Judge Walker’s. His ruling lacks any demonstration of how the liberty of homosexuals was inhibited by Proposition 8. In lieu of such demonstration, he posits the disturbing equation of interracial marriage to same-sex unions – as if the Civil War Amendments or Loving v. Virginia (1967) were intended to pave the way toward men marrying men – as if past judges and lawmakers had no idea what they meant by “marriage” – as if marriage were some subjective term left open to mean the union between a man and two wives, or a man and his mother. The race of a husband or wife does not fundamentally alter what marriage is.

The same civil marriage available to heterosexuals is available to gays. Whether a homosexual wants to marry a member of the opposite sex is no more relevant than whether a heterosexual does.

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