- The Washington Times - Thursday, August 5, 2010

ANALYSIS/OPINION:

OPINION/ANALYSIS:

SAN FRANCISCO | Bear Bryant is remembered for one of the most quoted aphorisms in sport: “A tie is like kissing your sister.” You could apply Bear’s scorn for a tie to the decision of a federal judge in San Francisco declaring California’s definition of marriage - as something more than “marriage” - to be unconstitutional.

The decision doesn’t settle anything. The trial in U.S. District Court was a setup for the real thing. The decision was rendered by a not-so-discreet gay caballero in San Francisco, where a man and woman holding hands in public risk outraging public morals, such as public morals and preferences may be in these precincts.

Next up is an appeal to the U.S. Ninth Circuit Court of Appeals, also based in San Francisco, where the most liberal of all the appeals courts is expected to rubber-stamp the decision. That still won’t settle anything. Then it’s on to the U.S. Supreme Court, where justices are usually loath to reach for the rubber stamp.

Judge Vaughn R. Walker’s determination that Proposition 8, the California ballot referendum declaring marriage to be a contract between a man and a woman, reflects little more than boilerplate language of homosexual activists. Proposition 8 “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”

Long before the challenge to Prop 8 was filed, Judge Walker had established a reputation for protecting lavender dreams and wishes. In 1999, he dismissed an appeal for redress for a boy whose religious belief that homosexuality is immoral was mocked by his teacher in a classroom lecture. Five years later, he upheld the city of Oakland’s punishment of two city employees for distributing handbills promoting “natural family, marriage and family values.” Mr. Walker declared that the city had “significant interests in restricting discriminatory speech about homosexuals.” The First Amendment, which guarantees freedom of speech, not just nice speech, must not apply in Oakland.

Though the Walker ruling was expected and set off celebration among gays and lesbians seeking pride of place atop a wedding cake, some homosexual advocates had concluded that their real goal - social acceptance by heterosexuals - won’t be imposed by courts or legislation, only, if at all, by means of persuasion.

David Fleischer, who leads a mentoring program by the Los Angeles Gay and Lesbian Center, recently supervised an analysis of poll data from the Prop 8 referendum, seeking clues to what actually went wrong and how to avoid a similar result in future. “A set of assumptions [about the results] gained wide acceptance,” he says. “Some were correct. Most, however, are just plain wrong.”

Foremost among the assumptions was that the winning 52 percent to 48 percent margin was the result of a churchgoing coalition of black, Mormon and Republican bigots, that emotional television advertising in the last days of the campaign brainwashed hundreds of thousands of voters. Mr. Fleischer, writing in the Los Angeles Times the day before Judge Walker announced his ruling, says his team discovered evidence that few voters changed their minds in the last days of the campaign. “The shift, it turns out,” he writes, “was greatest among parents with children under 18 living at home - many of them white Democrats.”

Another misconception “was that those who voted for Proposition 8 were motivated by hate.” He thinks that misinformation carried the day for Proposition 8, and a new attempt soon to establish gay marriage by popular referendum, which some of his gay colleagues think will be easy this time, will fail. His analysis “makes absolutely clear that supporters of same-sex marriage have a lot of work to do before we return to the ballot.”

Now the issue goes to the U.S. Supreme Court, where appeals to emotion, which so moved Judge Walker, are usually squeezed from the arguments of the lawyers. If the court wants to make a narrow decision (as it often does), it might hold that the definition of marriage is properly the function of the 50 states. This was the argument of liberals only yesterday against establishing a federal definition of marriage. It is no doubt true, as Judge Walker writes, that most Americans do believe that marriage, as taught over the millennia by every religious faith, is “superior” to same-sex “marriage.” In the end, gays and lesbians might have to settle for something less than they want, such as civil unions, and establish traditions of their own. There’s only room for two atop the wedding cake.

Wesley Pruden is editor emeritus of The Washington Times.

Judge Walker

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