BY ALEXANDER COCKBURN
A gay Republican federal judge of libertarian leanings, Vaughn R. Walker, struck down California’s ban on gay marriage on Wednesday, prompting ecstatic rejoicing among a mostly gay crowd outside the U.S. district courthouse in San Francisco. His ruling was the first in the country to strike down a marriage ban on federal constitutional grounds.
Walker ruled that a California referendum known as Proposition 8, mostly paid for by the Mormons, passed in 2008 and declaring marriage in the state was legal only when transacted between men and women, violates the Equal Protection Clause of the U.S. Constitution because it discriminates against gay men and lesbians by denying them a right to marry the person of their choice, whereas heterosexual men and women may do so freely.
A final judicial verdict is years away because appeals will now wend their way slowly through the system until they reach the U.S. Supreme Court, six of whose nine current members are Catholics.
Back in 2004, 18,000 same-sex couples were married in San Francisco in the brief period before SF mayor Gavin Newsom’s OK to license same-sex unions was overruled by the state of California.
It’s unclear whether there’ll now be a huge boom in San Francisco’s gay tourist economy. Walker has yet to rule whether he’s fired such a starting pistol for renewed gay marriage or whether they’ll have to wait for the final resolution of the appeals.
On the progressive side, there’s already a torrent of applause from liberal commentators at Walker’s 136-page vitriolic assault on traditional Christian family values, as represented by the Defense of Marriage Act, the original California law passed by the voters in 2000, which started the whole ball rolling.
The Tea Party crowd will be similarly heartened because the ruling buttresses their basic charge that America has been taken over by communist sons and daughters of Sodom.
The posture of politicians has often been circumspect because Americans are pretty much evenly divided on the matter. Barack Obama has hopped backward and forward over the fence, letting it be known he “doesn’t personally support gay marriage,” but thinks Proposition 8 was wrong and that the Defense of Marriage Act should be repealed. He’s for civil unions.
In the race to succeed Arnold Schwarzenegger as governor of California, the Republican candidate, former eBay CEO Meg Whitman, says her religious beliefs – Presbyterian – compel her to oppose same-sex marriage, though she’s all for civil unions. The Democratic candidate, Jerry Brown, has twittered his support for Walker.
Legal experts say Walker wrote a crafty decision, supposedly establishing a vigorous support base for gay marriage. In fact, his animus against the Proposition 8 crowd fairly steams off the page.
Most of their arguments, Walker writes, “are nothing more than a fear or unarticulated dislike of same-sex couples. 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.”
In the trial culminating in Walker’s epoch-making verdict, financial factors were often invoked. Jeff Zarrillo and Paul Katami, a male gay couple, said they challenged Proposition 8 because marriage has a “special meaning” that would alter their relationships with family and others.
Zarrillo described daily struggles that arise because he is unable to marry Katami or refer to Katami as his husband. “My partner and I want to open a joint bank account, and we’re hearing, ‘Is it a business account? A partnership?'”
Other witnesses cited favorably by Walker testified that San Francisco has lost – and continues to lose – money because Proposition 8 slashed the number of weddings performed in the city and decreases the number of married couples, who tend to be wealthier than single people because of their ability to specialize their labor, pool resources and access state- and employer-provided benefits.
Same-sex marriage was hailed in Walker’s courtroom as a social stabilizer, an essentially conservative force. It seems there are more than 107,000 same-sex couples living in California and, in Walker’s approving resume of testimony, they “are similar to married couples. According to Census 2000, they live throughout the state, are racially and ethnically diverse, have partners who depend upon one another financially, and actively participate in California’s economy. Census data also show that 18% of same-sex couples in California are raising children.”
Mind you, California has 37 million people in it, so 200,000 or so people in same-sex stable relations is a pretty small drop in the turkey baster.
Also, gays are crowding to board a sinking ship. Across America, on the last Census, there were 100 million unmarried employees, consumers, taxpayers and voters. The unmarried head up a majority of households in 22 states, more than 380 cities. Married couples with kids, who filled about 90% of residences a century ago, now occupy about 20%. Nearly 30% of homes are inhabited by someone who lives alone.
I’m for anything that upsets the applecart, but why rejoice when state and church extend their grip, which is what marriage is all about? Assimilation is not liberation, and the invocation of “equality” as the great attainment of these gay marriages should be challenged.
Judith Butler, a professor at UC Berkeley, exhibited kindred disquiet in a quote she once gave The New York Times. “It’s very hard to speak freely right now, but many gay people are uncomfortable with all this, because they feel their sense of an alternative movement is dying. Sexual politics was supposed to be about finding alternatives to marriage.”
And why marriage to just one person? Why this endless replication of the Noah’s Ark principle?
As that excellent San Francisco lesbian paper Ultra Violet once put it: “Marriage isn’t a civil right. It’s a civil wrong. We always thought that one of the good things about being a lesbian, or gay man, is that you don’t have to get married. There is a basic conflict here, between those who see the gay movement as a way to gain acceptance in straight society, and lesbians and gay men who are fighting to create a society in our own image. A decent and humane society where we can be free.”
Final irony. The Tea Party howls that communist sodomites are destroying America. Judge Walker, one of two openly gay federal judges in America, was given his first appointment to the bench by Ronald Reagan, advanced by George Bush Sr. and, as a libertarian, avers that the selection of lawyers judging financial and drug cases should be governed by public auction. He’s no commie.
– Alexander Cockburn is co-editor with Jeffrey St. Clair of the muckraking newsletter CounterPunch. He is also co-author of the new book Dime’s Worth of Difference: Beyond the Lesser of Two Evils, available through www.counterpunch.com.