Tucson CitizenTucson Citizen

Prop. 8 ruling could be the Roe v. Wade of this generation

In two or three years the United States Supreme Court will issue a ruling about whether U.S. District Judge Vaughn Walker was right last week when he struck down California’s constitutional amendment banning gay marriage.

That decision, not Walker’s, will be what is remembered by history, no matter how it’s decided.

But what will history say about that future decision? Will it be lauded as this generation’s Brown v. Board of Education, a landmark ruling that stuck a knife in the heart of Jim Crow and set the stage for finally uniting a nation riven by race since its inception?

Or will it be our Plessy v. Ferguson, an abhorrent decision by a racist court that distorted the Constitution to give legal credence to an American caste system?

Or will it be the next Roe v. Wade, a convoluted decision that uses privacy as a protection for abortion creating enormous social and political upheaval and bitterly dividing the nation?

Walker’s ruling is lengthy and meticulous but there are several key findings.

Is marriage a fundamental right? Walker says the case law says yes.

That being the case, does California have the right to interfere with that right on the basis of sexual orientation? Walker says no for numerous reasons, but the most significant is his finding that sexual orientation is a matter of biology.

In other words, homosexuals have no more control over their sexual orientation than they do over the amount of melanin in their skin.

And because of that, Walker found that, “The tradition of restricting marriage to opposite-sex couples does not further any state interest. Rather, the evidence shows that Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based on antiquated and discredited notions of gender.”

“The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal,” Walker wrote.

If we could only leave it at that. But this case is not just about the law and what’s reasonable and rational, it’s about religion, too.

Walker addressed that when he wrote,” The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples . . . The evidence fatally undermines any purported state interest in treating couples differently; thus, these interests do not provide a rational basis supporting Proposition 8.”

In other words, deeply held religious beliefs are no excuse for discrimination.

But we are a religious nation and we frequently let our religion get in the way of our reason. Public sentiment toward this issue has more to do with what God says about homosexuality and marriage than what history or the law does.

The law may very well be on the side of homosexuals when it comes to same-sex marriage. God isn’t.

And that is likely to make the effect of whatever the Supreme Court finally decides about this issue more like Plessy or Roe than Brown.

Here’s hoping for Brown.

Read the 138-page ruling: Perry v. Schwarzenegger ruling

View the video and document evidence entered at trial and referenced in the ruling.

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