frgavin on March 6th, 2012

Extending the privilege of marriage to homosexuals undermines its foundations.

When do you know it’s over? When do you know that civilization has collapsed inwardly to such an irreparable extent that the next stop is barbarism? When is that Weimar moment?

Certainly, the legalization of abortion was one such moment, as barbarism is defined as the inability or unwillingness to recognize another person as a human being. Abortion is the denial of procreative sex by nullifying its effects, which are seen as accidental. If you have an accident and conceive a baby, you can just clean up the mess by aborting it.

Now we are experiencing other Weimar moments, which also deny procreative sex by accepting sodomy as a morally normative act.  In Maryland, Gov. Martin O’Malley signed into law a bill legalizing same-sex marriage, effective next January.  In Washington state, Gov. Christine Gregoire signed a similar bill that will take effect June 7. Gregoire said, “We tell the nation that Washington state will no longer deny our citizens the opportunity to marry the person they love.”

This is exactly the same language that actor and producer Rob Reiner used in justifying his March 3rd live-streaming production of a dramatization of California’s Proposition 8 trial, with Brad Pitt playing Judge Vaughn R. Walker.  This was the decision that overturned Proposition 8, which added to the California constitution the definition of marriage as only “between a man and a woman.” This provision was challenged by several homosexual couples, the plaintiffs in the case, as a denial of due process and their right to equal protection under the law.

The original defendants in the case, the then-Attorney General Jerry Brown (now Governor) and the then-Governor Arnold Schwarzenegger, refused to defend their state constitution in court, even though Proposition 8 was passed by a majority of their citizens. For this, a Californian might think, they should have been impeached for dereliction of duty. Brown and Schwarzenegger should not have been able to choose which parts of California’s constitution they would uphold and which they would not. Their absence left an apparently less than competent volunteer team to defend the provision.  (In a similar move, President Obama and his administration have chosen not to defend the Defense of Marriage Act, though it is the law of the land.)

Personal interests

In deciding the case, US District Chief Judge Vaughn R. Walker ruled that Proposition 8 is unconstitutionally discriminatory because marriage is not between a man and a woman.

Where could he have gotten this idea? It turned out that the judge himself is a homosexual. It is more than a stretch to believe that his life as a homosexual did not affect his decision concerning homosexual rights. Would a person engaged in the very activity that is being questioned be the best judge of its legal character? One of the most elementary principles of justice is that one should not judge a case in which one has an interest. But Judge Walker apparently did not feel the need to recuse himself, though it would seem obvious that he, as a homosexual, would have had a personal interest in the outcome.

District Court Judge James Ware heard arguments on the motion that raised this very issue, and denied it. In the decision, Ware explained that,

“Requiring recusal because a court issued an injunction that could provide some speculative future benefit to the presiding judge solely on the basis of the fact that the judge belongs to the class against whom the unconstitutional law was directed would lead to a Section 455(b)(4) standard that required recusal of minority judges in most, if not all, civil rights cases.”

There is a profound problem with this reasoning.  It prejudges the case as a “civil rights” issue.  It is not the “class” to which Walker belonged, but the behavior in which he engaged that was at issue in his conflict of interest.  Do laws against murder discriminate against a “class” of murderers?  Acts do not constitute class.  They are voluntarily performed by individuals.  It is the moral and legal character of an act that constitutes the matter at hand, not the class of the person performing the act.  Let us say that the constitutionality of Prohibition was being decided.  Would it be relevant to the judge’s competence to hear the case if he were an active alcoholic?  Why, then, is it less relevant in this case, which was to decide the constitutionality of same-sex marriage, that Judge Walker was in a 10-year “relationship” with a partner, as he later admitted?

In fact, the judge was a beneficiary of his own ruling – not only in the direct sense that he could now marry his “partner” if he so wished, but in the larger rationalization of homosexual acts as being morally normative. His 136-page ruling can be seen as a bald act of self-justification, which he now enforces upon the broader public as legally mandatory.

This, of course, is a major misuse of law. In The Ethics, Aristotle noted what impels it: “Men start revolutionary changes for reasons connected with their private lives.” People who live morally disordered lives – and a life centered on homosexual acts is morally disordered – must always search for rationalizations that permit them to continue their behavior. Otherwise, their conscience rebels (see The Culture of Vice). Judge Walker’s revolutionary ruling was indubitably tied to his private life, the rationalization for which he then required everyone to accept – according the U.S. Constitution, no less.


Let us examine the rationalizations in his judgment, which have now been shared by the 9th Circuit Court appeals panel, which supported his ruling in a split (2-1) decision issued in February. (The full 9th Circuit Court of Appeals has been asked to review this ruling.)

Judge Walker declared that “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.” This, he contended, is wrong because marriage is a basic right.

However, one has a “right” or is “free” to marry only in so far as one is capable of being married. One does not have a right to a vocation in life that one cannot perform the duties of. Does one have the “right” to be a fireman if one cannot quickly climb a ladder and lift a heavy hose? Does one have a “right” to serve in the military if one cannot physically meet its demands?

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