Most people who followed the Proposition 8 trial expected Chief U.S. District Judge Vaughn Walker to overturn California’s same-sex marriage ban. Still, the scope and breadth of the decision is thrilling. In clear, cogent prose, Walker systematically eviscerated every hackneyed canard and bad-faith assertion offered by religious conservatives to justify rank bigotry against gays and lesbians.
“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” Walker wrote. “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. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional,” the judge ruled.
“The decision recognizes that the legal battles against marriage rights for same-sex couples now no longer have a leg to stand on,” says Columbia Law School’s Suzanne Goldberg.
“It is a slam-dunk victory for same-sex couples and for the same-sex couples in this case,” says Suzanne Goldberg, director of Columbia Law School’s Center for Gender and Sexuality Law. “The decision recognizes that the legal battles against marriage rights for same-sex couples now no longer have a leg to stand on.”
And this isn’t just a victory for gays and lesbians. Walker’s ruling is made on explicitly feminist grounds. The restriction of marriage to heterosexual couples, he finds, “exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.” The religious right has always known that gay rights and feminism are deeply intertwined, because both threaten the idea that gender roles are God-given, sharply delineated and immutable. Part of the brilliance of Walker’s decision is the way it roots out the premises of the anti-gay marriage argument and demolishes them.
• John Avlon: The Right Attacks Prop 8 JudgeGoing forward, there are real dangers. Only six years ago, ferocious demagoguery against gays and lesbians played a huge role in the 2004 election. I remember spending a Sunday morning in the Columbus megachurch of Rod Parsley, a particularly politically active pastor, as he warned his flock of thousands that same-sex marriage heralded “the annihilation of a civilization.” Campaign events all over the state were charged with poisonous homophobia; after a Bush rally featuring Arnold Schwarzenegger, pumped-up Republicans hissed “faggot!” and “You people are sick!” at a small knot of counterprotesters. Lately, homophobia has been a bit less salient in our politics, racial grievances having momentarily overtaken anxiety about gender. But it’s likely to come roaring back now.
Meanwhile, this decision makes it extremely likely that gay marriage will end up before the Supreme Court, which essentially puts the civil rights of millions of American families into the hands of Anthony Kennedy. Today’s decision is the beginning, not the end, of the battle over gay people’s constitutional rights.
Nevertheless, the ruling is a major turning point in the culture wars. Walker, it’s important to remember, is no leftist. Ronald Reagan appointed him to the bench in 1987. Ironically, Democrats stalled his nomination in part because he was seen as being unfriendly to gays and lesbians—as a private attorney, he represented the U.S. Olympic Committee in a lawsuit against San Francisco’s Gay Olympics. He finally became a judge under George H.W. Bush.
And, of course, one of the lawyers arguing for marriage equality was Ted Olson, the former solicitor general who represented George W. Bush in Bush v. Gore. From the beginning, the case has demonstrated that it’s becoming impossible for anyone but the most committed ideologues to take arguments against same-sex marriage seriously.
Cleve Jones, the longtime gay-rights activist—Emile Hirsch played him in Milk—was one of those who protested Walker’s appointment. Now a senior adviser to the Courage Campaign, a California marriage equality organization, he says, “If you’d told me just two years ago that Theodore Olson was going to end up being one of my personal heroes I would have laughed in your face.”
While there will certainly be a backlash to Walker’s decision, the constituency for discrimination is getting smaller. A new poll from the Public Religion Research Institute shows that a 51 percent majority of Californians now say they’d vote against a Proposition 8-type law. The more people learn about gay families—including the plaintiffs in the Proposition 8 case—and the harm that discrimination causes them, the less credence they give to right-wing demonization.
“I’ve been involved in this effort for a very long time,” says Jones. “I joined what was quaintly called the gay liberation movement back in 1972. In all of these decades, there has been this conversation about fear of the backlash. While we see little blips, really there’s just been a steady movement in the direction of equality.”
Michelle Goldberg is the author of The Means of Reproduction: Sex, Power and the Future of the World and Kingdom Coming: The Rise of Christian Nationalism. She is a senior correspondent for The American Prospect, and her work has appeared in The New Republic, The Nation, the Los Angeles Times, Glamour, and many other publications.