No, Cardinal Mahony, Judge Walker Got it Right
Dear Cardinal Mahony,
I saw your recent blog post entitled Judge Vaughn Walker Got it Wrong, in which you wrote:
[Walker’s] decision fails to deal with the basic, underlying issue–rather he focused solely upon individual testimony on how Prop 8 affected them personally. Wrong focus.
There is only one issue before each of us Californians: Is Marriage of Divine or of Human Origin?
Judge Walker pays no attention to this fundamental issue, and relies solely upon how Prop 8 made certain members of society "feel" about themselves.
Those of us who supported Prop 8 and worked for its passage did so for one reason: We truly believe that Marriage was instituted by God for the specific purpose of carrying out God’s plan for the world and human society. Period.
That may be what you and many others believe about marriage, but that belief has no standing in court. Judge Walker was not placed on the bench to decide whether laws and conduct in the United States match up to the Bible, the Koran, the Torah, or other religious writings. His job is to measure the disputes that come to his courtroom against the laws and constitution of the United States of America.
Maybe even Exclamation Point.
The sacred text for Judge Walker is the US Constitution, and nowhere in the Constitution and its twenty seven amendments is God mentioned. Nowhere. Not even once.
Religion gets only two mentions in the Constitution. Article VI says there can be no religious test to hold office, and the First Amendment restrains Congress from establishing an official religion and abridging the free exercise of religion. That’s two mentions of religion, and both in the negative.
If the defendant-intervenors in the Prop 8 case tried to raise the issue of the divine institution of male-female marriage, any federal judge would have been right to throw the argument out. Judge Walker summarized this in two sentences in his decision (pdf p. 10), distilled from two of the most on-point Supreme Court cases:
A state’s interest in an enactment must of course be secular in nature. The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose. See Lawrence v Texas, 539 US 558, 571 (2003); see also Everson v Board of Education of Ewing Township, 330 US 1, 15 (1947).
The state is not in the business of making religious judgments — and I’m surprised that you, the soon-to-be-retired Roman Catholic archbishop of Los Angeles and a Cardinal of the Roman Catholic church would want a secular judge to be passing judgment on whose religious views are correct. You and your brother bishops seem very passionate about claiming that kind of authority only for yourselves.
Cardinal, if you don’t like Walker’s ruling and want someone to blame for it, you might look in the mirror. It was likely money from Roman Catholic and Latter-Day Saints individuals and institutions that paid for the work of the defense-intervenors, and from where I sit, they did a pretty poor job.
Judge Walker gave them every opportunity to lay out a non-religious rationale for their position, and they failed. Miserably.
They did not build a case on facts, but merely asserted that one existed. They did not put forth credible expert witnesses, they did not bring forward peer-reviewed scientific studies, and they did not put forward a single convincing secular purpose for the kind of discrimination Prop 8 sought to enshrine in law. Wrote Walker (pdf p. 11):
[Prop 8] proponents in their trial brief promised to “demonstrate that redefining marriage to encompass same-sex relationships” would effect some twenty-three specific harmful consequences. Doc #295 at 13-14. At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn’s testimony is addressed at length hereafter; suffice it to say that he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate.
That’s the sum total of the case put forward by the defenders of Prop 8. One witness, and not a particularly good one at that. Walker weighed that poor excuse for a case against the strong, vigorous, and well-supported arguments of the plaintiffs, and (surprise, surprise) sided with those seeking to overturn Prop 8.
Indeed, your blog post proves the wisdom of Judge Walker’s ruling. You declare that there is one and only one reason you and others backed Prop 8 — your religious beliefs about the divine institution of marriage. Indeed, by the end of Walker’s decision, he seems to agree that this *is* what the case is about. After dismantling the six purported rationales for Prop 8 put forward by the DIs, Walker writes (pdf p. 134):
what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. FF 78-80. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate. See Romer, 517 US at 633; Moreno, 413 US at 534; Palmore v Sidoti, 466 US 429, 433 (1984) (“[T]he Constitution cannot control [private biases] but neither can it tolerate them.”).
Walker believes that you and your fellow Catholics believe that gays and lesbians are "objectively disordered" and sex between people of the same gender is a "grave depravity." He’s read the materials put out by the Congregation of the Doctrine of the Faith (see Finding of Fact #77, points i and j on pdf p. 104). By the end of his decision, he agrees with you that this is why you want to enshrine this belief in law.
Thank God, however, that he believes this is "not a proper basis on which to legislate."
You may be free to discriminate against gays and lesbians within the Catholic church as a matter of faith, but the state of California is not free to do the same as a matter of law.
Your brother in Christ,
The Rev. Dr. Peterr