Judge Vaughn R. Walker ruled that the majority vote in favor of defining marriage as being between persons of the opposite sex was a violation of the state's constitutional right to equal protection.

The ban still remains, due to a decision by a three-judge panel of the United States Court of Appeals for the Ninth Circuit not to change the current situation until after they hear arguments on an appeal, scheduled for December. The most likely outcome is that the case will eventually reach the Supreme Court.

There is, however, a question mark over whether the defenders of Proposition 8 have legal standing to appeal. California state authorities have refused to appeal and the appeals panel will decide first on the issue of standing.

Judge Walker's decision came in for harsh criticism due to what many consider its lack of objectivity. Even before he handed it down, Austin Ruse pointed out many troubling elements in how the case had been conducted in an article posted on the Catholic Thing Web site.

In his July 16 article, Ruse reminded readers that the Supreme Court had stepped in to stop the televising of the trial. Walker had wanted a "show trial," Ruse argued. In fact, four expert witnesses for the Proposition 8 case withdrew, fearing reprisals if they testified. This followed numerous cases of hostile actions by homosexual activists towards those who had donated to the Proposition 8 campaign.

Following the decision immediate criticism came from the Catholic Church. “Marriage between a man and a woman is the bedrock of any society," declared Cardinal Francis George, president of the United States Conference of Catholic Bishops, in an Aug. 4 joint statement with Archbishop Joseph Kurtz, chair of a committee set up to defend marriage.

"The misuse of law to change the nature of marriage undermines the common good,” they said. “It is tragic that a federal judge would overturn the clear and expressed will of the people in their support for the institution of marriage. No court of civil law has the authority to reach into areas of human experience that nature itself has defined,” asserted.

Out of control

There was also condemnation of the decision from those in favor of same-sex marriage. "When a judge in California found that same-sex couples have a right to wed, he cemented the widespread notion that the courts are out of control and that the Constitution means whatever judges want it to mean," said Steve Chapman in the Aug 8 edition of the Chicago Tribune.

Chapman declared himself in favor of same-sex marriage and even polygamy, but such changes should come from elected institutions and not courts. "Thanks to Judge Walker, the debate is no longer about whether gays deserve protection from the law, a debate they were steadily winning," Chapmen commented. "It is more about whether democratic processes should be trusted to resolve the question," he concluded.

John Yoo, a law professor at the University of California, Berkeley, also a supporter of same-sex marriage, lamented Judge Walker's decision in an article published Aug. 12 in the Wall Street Journal. He recalled how in his State of the Union address last January, President Barack Obama attacked the justices of the Supreme Court for an unpopular decision on campaign financing. The president then went on to ask Congress to overrule the court's decision, thus restoring settled constitutional law.

According to Judge Walker, gender no longer forms an essential part of marriage and any position to the contrary is simply irrational, Yoo noted. But the Constitution did not set up the federal courts to correct all the nation's problems or to engage in social engineering, Yoo argued.

Prematurely introducing same-sex marriage by judicial means will only guarantee decades of conflict, as happened with abortion when the Supreme Court in the 1973 Roe v. Wade decision, he pointed out.

Political

Tim Wildmon, president of the American Family Association, accused Judge Walker of making a political statement in his decision. Writing in the opinion pages of the Aug. 13 edition of the Los Angeles Times, Wildmon referred to the argument that marriage being restricted to heterosexuals is similar to the ban in the past on persons of different races being able to marry.

In reply to this, Wildmon quoted an undated statement by Colin L. Powell, who said: "Skin color is a benign, nonbehavioral characteristic. Sexual orientation is perhaps the most profound of human behavioral characteristics. Comparison of the two is a convenient but invalid argument."

Regarding Judge Walker's affirmation that opposition to same-sex marriage is only based on religious or moral considerations, Wildmon argued that this is clearly a case of a judge imposing mere personal opinions. This is a clear case of judicial tyranny, something that the founding fathers had warned against.

The attack on defenders of heterosexual marriage that they are motivated by religious prejudice is common. A useful reply to this came in the second book of a series titled "Why vs Why" in which contrasting views on topical issues are books laid out in debate form. In the second one titled "Gay Marriage," published in May by Australian publisher Pantera Press, Bill Muehlenberg took up the case against same-sex marriage.

Reasonable arguments

Muehlenberg, secretary of the Family Council of Victoria, set forth a series of reasons, none of them based on religious grounds.

1. It negates what marriage is. Marriage is not just a social construct, but a cultural universal. Marriage is the basis for family formation and is not simply a way of legitimizing sex. Evolutionary biologists acknowledge that male-female bonding in lasting pairs was the critical step in human evolution and is something built into us by nature.

2. The percentage of homosexuals who want to marry is very small and in places where it has already been legalized there have been relatively few same-sex marriages. It has been legal in the Netherlands since 2001 and only about 4% of homosexuals married during the first five years after legalization.

3. There is another agenda here. A fundamental goal of the homosexual lobby is the complete social and public endorsement of them. Being able to marry is like having a stamp of approval from governments and society. It also changes the institution of the family and essentially redefines marriage out of existence.

4. Not all relationships are alike. Homosexual relationships are much more unstable and promiscuous than heterosexual ones. Research has also found that among married homosexual couples the rate of divorce is much higher than for heterosexual couples.

5. Claims of discrimination and denial of rights are spurious. People are entitled to the benefits of marriage if they meet the requirements. Just as family members and minors cannot marry, so too homosexuals cannot. Social goods are denied to all sorts of people and that is how life operates. Societies discriminate in favor of heterosexual unions because of the social good derived from them. Homosexuals are seeking to re-write the rules to get all the benefits, while avoiding the obligations.

6. The arguments used to justify legal same-sex marriage could be used to legalize incest, polygamy or any number of sexual combinations.

7. It is not good for children. In most cases a child will do better with a mother and a father. As well children need role models as they are growing up. Children should be given priority, and not used as political footballs.

These arguments, amply documented in the book, show clearly just how wrong-headed was Judge Walker's decision.