Prof. Nelson Lund: Walker Ruling "Strange"


In yesterday’s San Francisco Chronicle, law professor Nelson Lund says "Prop 8 judge makes strange charge":

A federal judge in San Francisco ruled Wednesday that President Obama is a bigot. And not just the president. Joe Biden as well, and Hillary Rodham Clinton and Sandra Day O'Connor. And maybe you, too.

The judge didn't put it that way, of course. Technically, he ruled that an amendment to California's Constitution violated the U.S. Constitution by defining marriage as a union of one man and one woman. That amendment was approved by voters after a state court declared that a similar statute violated the state Constitution. The amendment then was challenged in federal court as a violation of the U.S. Constitution.

This was a strange ruling. The U.S. Supreme Court decided in 1971 that an identical challenge to the traditional definition of marriage was meritless. Nor has the Supreme Court ever suggested that its 1971 decision was wrong. Wednesday's ruling relied primarily on a constitutional doctrine that forbids laws having no conceivable rational purpose or no purpose except to oppress a politically unpopular minority group. After a lengthy trial, the judge found that the people of California must have adopted the traditional definition of marriage because of moral or religious contempt for homosexuals and their relationships.

It was a strange charge to make against the people of California. California has the most progressive domestic partnership law in the nation, which gives same-sex couples all the same substantive rights and privileges available to married couples. Why would the judge think that the only possible reason for favoring the traditional definition of marriage was bigotry? He reasoned that every other possible explanation for the voters' decision was so ridiculous that only anti-gay feelings were left.

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