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I poured through Judge Walker's 136 page decision striking down Proposition 8 as unconstitutional, with obvious relish. This is one judge with a strong sense of justice and a desire to make history. Painstakingly reviewing the evidence proffered in the three week trial, Judge Walker shoots down, one after another, the various myths, stereotypes and outright lies that are used to justify the exclusion of same-sex couples from full and equal societal recognition. In the process, he exposes the ugly core of religious-based prejudice that lies behind Proposition 8.
This is one smart judge as well. Judge Walker subjects Proposition 8 to the easiest test available under the Equal Protection Clause of the Fourteenth Amendment – whether a law has any rational basis at all for treating two classes of persons differently – and gives it a failing score. As Judge Walker explained, “Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians.” The Judge relies on determinations of facts and the credibility of witnesses(finding the experts for the proponents of Prop 8 totally lacking in credibility) to reach his conclusion that California has no interest in refusing to provide marriage to same-sex couples on an equal basis. Because factual determinations are the purview of a trial court, not an appellate court, he has made it a lot harder for an appellate court to overturn him. Not impossible, mind you – just harder.
Of course, Judge Walker is no radical lesbian/gay liberationist nor was the talented team of lawyers challenging Proposition 8. Thus, I found some of the Judge's statements problematic. For example, Judge Walker determines that sexuality is fixed rather than fluid, leaving gays and lesbians no choice in the matter, and that homosexuality itself is confined to a tiny minority of the population. Thus, the Judge concludes that heterosexual married couples have nothing to worry about. But I think that poses the questions wrongly. Moreover, as a lesbian whose sexuality is as much a product of my political passions as my personal ones (feminism played a major role in my coming out) , this interpretation does not ring true for my life. Neither is it consistent with the lives of many lesbians that I know who spent years or decades in heterosexual marriages, often with no inkling of their lesbian potential.
If homosexuality is not inferior nor harmful to society, as Judge Walker asserts, whether or not people have a choice in the matter is irrelevant. The religious right may very well be correct in its fear that the elimination of discriminating and stigma may increase the prevalence of same-sex relationships, but so what? Everyone should have the freedom to love and to marry anyone they choose. To make an analogy, would we defend freedom of religion only if we can be assured that Protestant Christianity would always remain predominant?
But by most measures, Judge Walker's decision is heartening, even surprisingly so. For example, he grasps the connection between the exclusion of same-sex couples from marriage and the oppression of women in traditional marriage. He points to the prior existence of coverture which subsumed a female's identity into her husband's, denying all rights to the wife, rules that have been replaced with legal equality between married partners. Judge Walker writes, “Proposition 8 thus enshrines in the California Constitution gender restriction that evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic society.”
Judge Walker's decision shines the light of facts on one of the most persistent and deeply held prejudices in our society - homophobia. “The evidence shows that, by every metric, opposite sex couples are not any better than their same sex counterparts – instead, as partners, parents and citizens, opposite sex couples and same sex couples are equal.” Certainly, Judge Walker deserves accolades. But we should not forget that it is the movement that emerged in the Stonewall rebellion and that for decades marched and chanted “gay is just as good as straight” that brought us to this victory.
So, what's next? All of us in the LGBT community and our allies must remain vigilant and continue to mobilize, for the struggle is far from over. Ultimately, our movement is the only power on the planet that that can exert the political pressure necessary to ensure that the Ninth Circuit and ultimately the U.S. Supreme Court rule, as Judge Walker did, based on rationality and not prejudice.