David Limbaugh isn’t usually one of my favorite columnists, but he’s put his finger firmly on the flaws of the Prop 8 decision by Judge Walker:
He seeks to deconstruct (and then reconstruct) the definition of traditional marriage by describing its constituent elements and showing how those elements can be applied equally to heterosexual marriage and same-sex marriage, thus concluding there is no difference between the concepts. It’s as if he compared my DNA with any of yours and concluded that because 99.9 percent of human DNA is the same in everyone, you and I are the same person.
Walker takes the various principles the courts have enunciated through the years concerning marriage and the right to marry, labors to show there’s no logical reason to differentiate in the application of these principles between heterosexual marriage and same-sex marriage and, presto chango, concludes that these legal precedents demand that the definition be changed to conform to his worldview.
All the while, he denies he’s changing anything.[Emphasis Added]
He states, for example, that “marriage has retained certain characteristics throughout the history of the United States.” It requires that two parties “give their free consent to form a relationship, which then forms the foundation of a household,” and that “the spouses must consent to support each other and any dependents.”
He cites case law affirming that “the state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace,” and that “the state respects an individual’s choice to build a family with another and protects the relationship because it is so central a part of an individual’s life.”
Because he believes these statements can be applied equally to homosexual unions, such unions, in his opinion, also fit our concept of marriage. The problem with that is that he can’t artificially extend to homosexual unions ideas that were, by their context, intended to apply only to heterosexual marriage.
The fact that two types of unions contain certain similar attributes does not negate the fact that at their core, those unions are fundamentally different. For example, just because heterosexual unions also include the free consent of both parties doesn’t mean the court can be read to have equated those unions to heterosexual marriage.
And the Examiner Editorial Board points out that the good Judge’s objectivity on this topic isn’t above reproach:
Yet, this latest decision marks the third time Walker has been rebuked by appellate courts since he was appointed to the federal bench by President Reagan. Earlier this year, after Walker required disclosure of Prop 8 supporters’ internal communications, the Ninth Circuit cut him off by issuing a highly unusual writ of mandamus directing him to stop what would clearly be an excessive and unnecessarily intrusive discovery process. That the higher court used such a writ — defined by Black’s Law Dictionary as indicating a failure to “perform mandatory or purely ministerial duties correctly” — is suggestive of the appeals panel’s opinion of Walker’s jurisprudence. The second instance came shortly thereafter when the U.S. Supreme Court blocked Walker’s plan to televise the proceedings in his courtroom prior to issuing his ruling. Had he been allowed to proceed, the case would have become little more than a circus.