Editorial: Right to happiness may conquer marriage inequality

Staff Writer
Mount Shasta Herald

The struggle over same-sex marriage has mostly played out in state capitals, and the ruling last week by Judge Vaughn Walker directly applies only to California. But the frontal assault on marriage inequality waged by two of the nation's top lawyers occurred in federal court, and if the case makes it to the U.S. Supreme Court, the result could apply from sea to shining sea.

Walker's opinion dismantles the underpinnings of Proposition 8, the 2008 initiative that banned gay marriage in California. In his findings of fact, which aren't subject to appeal, he dismisses claims that procreation is essential to marriage, that children are damaged by being raised by same-sex couples, or that same-sex marriage undermines opposite-sex marriage. Those defending Proposition 8 only introduced two witnesses, who, in the judge's view, fell far short of making a convincing case that same-sex marriage poses any kind of threat.

The legal issue is pretty simple. Under the equal protection clause of the 14th Amendment, government cannot deprive any class of citizens of the rights others enjoy unless there is a good reason. Once the rationalizations are found warrantless, the only reason left is bigotry toward homosexuals. Under the law, bigotry is not a good reason.

The howling among opponents of marriage equality has already begun, but the familiar charges they hurl shouldn't stick. There's nothing "activist" about applying constitutional law to the facts put before the court. That's what judges are appointed to do. Nor is there anything wrong with asking the courts whether a government policy is constitutional. That's one of the things courts are for.

In legal circles, Judge Walker, appointed to the bench by President Ronald Reagan, is considered a libertarian conservative. Judge Joseph Tauro, the Nixon appointee who authored last month's ruling throwing out the federal Defense of Marriage Act, is also considered conservative. Both rulings are grounded in conservative legal applications, confirming what Theodore Olsen, one of the plaintiffs' attorneys in the California case and George W. Bush's solicitor general has been saying for months: There's nothing conservative about using government power to determine who can and cannot be married.

Marriage rights activists have been divided on the California case, fearful that nationalizing the issue and dropping it into the laps of John Roberts' Supreme Court risked having marriage equality invalidated in states, like Massachusetts, that have adopted it. There is also the concern, grounded in the experience of Roe v. Wade, that when Supreme Court rulings short-circuit the political process, resistance to change intensifies.

Those practical worries are still legitimate. But Judge Walker's unequivocal ruling, rock solid in its views on the fact and the law, should be celebrated by all who consider the right to marry the person you love to be fundamental to the "pursuit of happiness" generations of Americans have fought to protect.

The MetroWest (Mass.) Daily News