The infamy of a California ruling on same-sex marriage is not that it furthers the possibility of thousands upon thousands of homosexual couples being wedded someday, but that once more a judge is aiming to reshape our society with no justification beyond his own moral druthers.
If state legislatures throughout the land voluntarily enacted laws allowing same-sex marriage, there would still be people arguing that such unions violated some code to which they subscribed. Yet no one could say that an activist court had usurped a legislative function and thereby threatened serious damage to rule of law.
The decision of Vaughn Walker, chief judge of the Federal District Court in San Francisco, does that very thing through illogical sleight of hand. Negating a 52 percent vote by Californians disallowing same-sex marriage, he said the ban violated the U.S. Constitution's guarantee of equality under the law. As much could conceivably be true only if he first took it on himself to define the institution differently from what it has been throughout most of history.
It has been a union of male and female often afforded an array of privileges because the family unit has been crucial to propagating and nurturing the species. While for obvious reasons they may choose not to, no homosexual is denied the right to marry someone of the opposite sex anymore than heterosexuals are permitted to enter same-sex marriages.
There is no inequality here, and to assert the opposite is equivalent to saying it's discrimination to deny Social Security to young, able-bodied working people. Or to deny food stamps to the rich. Or to tell octogenarian men they cannot join the Boy Scouts.
Walker, who may be overruled, can espy inequality only if he asserts against thousands of years of tradition that marriage is meant for just any two adults committed to life together and that, sadly, bigotry intervened, declining in the guise of civil authority to certify marital unions between two people of gay orientation.
The proposition is preposterous, which isn't the same as saying there is no case to be made for legally recognized same-sex unions.
True, there is nothing unbelievably vile happening at the moment. Gay couples can live together legally everywhere in this country and, at least piecemeal, put together any number of rights. In nine states, including California, they can enter domestic partnerships. Mostly coerced by state court decisions, five other states allow same-sex marriages.
Still, depending on the outcome of legal proceedings now underway, even married gay couples cannot obtain federal rights given to heterosexual married couples. Perhaps more important to many gays is the wish to have their unions socially sanctified. They have a sense of oppression. They want acceptance.
Judging by the portions of it I have read, Walker's ruling is deeply immersed in such issues, in surveying the scene, encountering disappointment and deciding what would make this a more nearly perfect nation. But that's not his job. He was not appointed to his position to serve as philosopher king, saying bah to consent of the governed while reinventing institutions, but to heed what the law really says, what it really means.
Despite votes against same-sex marriage in 31 states, my own sense is that legislatures eventually will move more and more toward allowing same-sex arrangements, if not actually calling them marriage in most instances. There is, however, something else I sense, and that is a growing discomfort with elites assuming mass evil where there is none and feeling somehow entitled to dictate the way we live our lives. Watch for change, this time with consent of the governed.
Jay Ambrose, formerly Washington director of editorial policy for Scripps Howard newspapers and the editor of dailies in El Paso, Texas, and Denver, is a columnist living in Colorado. He can be reached at SpeaktoJay@aol.com.