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Gay Marriage and the Tyranny of Judges

It's undoubtedly true that when Judge Vaughn Walker stepped into the voting booth back in 2008 to cast his vote on Proposition 8 as a private citizen, he voted 'No' – as was his right. But when the fate of the popular but controversial measure landed in his courtroom last year, his conduct was a textbook example of brazen judicial advocacy.

Of course Mr. Walker wasn't alone in voting 'No', joined as he was by 6.5 million of his fellow Californians, who ended up comprising 48% of the electorate that year.

But Vaughn Walker enjoyed a special privilege: he got to cast two votes – one on election day in the voting booth, and the other in his courtroom, where he clearly relished the chance to nullify the wishes of the seven million California voters with whom he disagreed. Nice work if you can get it.

In the age of judicial overreach in which we live, Judge Walker's ruling – a breathtaking act of undisguised, unapologetic arrogance – still stands out. In its scope and radicalism, it would not have been out of place in Chairman Mao's China during the Cultural Revolution. Indeed, one wonders why Walker didn't sentence supporters of Proposition 8 to a forced march through San Francisco's streets, wearing posters proclaiming "I Advocate Bigoted and Outmoded Social Customs".

The above-referenced social custom, of course, is marriage as it has been practiced and understood by all of humankind for millennia in every corner of the world, as a union between a man and a woman, but which the esteemed Judge from San Francisco now deems intolerably anachronistic. That it is a time-honored tradition matters not. That a sizeable majority of California voters wish to keep it that way matters not. That sizeable majorities in 29 other states where it has been put to a vote concur... matters not.

From the outset, the good Judge made it unmistakably clear that he had no interest in ruling on the legal merits of the case, which would have been a routine matter of issuing a summary judgment. Instead, he meant to retry Proposition 8 from scratch. Had the U.S. Supreme Court not stepped in, Vaughn would have had the court proceedings televised, and Prop 8's supporters subjected to an intrusive discovery process that would have exposed them to harassment and reprisal from gay activists. As Ed Whelan of the Ethics and Public Policy Center observed, Judge Vaughn aspired to turn the trial into an historic, culture-transforming spectacle, with himself as Grand Inquisitor.

The judge issued 80 so-called "findings of fact" in his ruling, all of which — surprise! surprise! — happened to support his contention that Proposition 8 was so inexplicable and freakish an event that its mere presence on the ballot was as worthy of ridicule as Bigfoot or the Loch Ness monster. For the sake of argument, let's declare ourselves in agreement with Judge Walker on this. If the existence of Prop 8 were as illegitimate and outre as its foes claim, the reasonable and proper democratic response to it would have been a petition drive to put Proposition 9 on the ballot for the next election, and then persuade at least half-plus-one of California's voters to vote for it. If every fact under the sun supported Walker and his side of the argument, such an election would be a slum-dunk repudiation of Prop 8.


The fly in this ointment is the effort, patience and perseverance necessary to change, through rational argument, the minds of millions of voters. These are scarce virtues among gay marriage activists. Why take the time and trouble of such debate when one liberal judge can nullify the will of millions of voters with the stroke of his pen? The temptation is hard to resist.

And so, from the wind-swept heights of wisdom and liberal jurisprudence, Judge Walker, all by himself, concluded that California voters had no rational basis to vote for Prop 8. To think such a beacon of light and truth as he must live in a land as awash in bigotry and ignorance as California. And yet he does, so we must surrender without protest our archaic notions of marriage and gender roles and the rearing of children. For surrender we must. Because according to Walker it is "beyond debate" that gay marriage "has at least a neutral, if not a positive, effect on marriage." Moreover it is equally true that "parents' genders are irrelevant to children's developmental outcomes."

We cannot question Judge Walker. He has spoken; ours is not to question why. Henceforth, traditional marriage must be regarded — in the courtroom, in the classroom, and in the public square — as no more than "an artifact of a time when the genders were seen as having distinct roles in society and marriage." Who would have guessed that this man, a Bush 41 appointee, would dare vanquish the insidious falsehood of gender distinction?

If the arrogant presumption of Judge Walker's ruling gladdens the hearts of gay activists, it also must surely arouse the ire of the originalists on the Supreme Court, who are likely to see his ruling for the conjuring trick that it is and reject it. May that rejection come soon and forcefully.