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Opening Arguments

In the family way

Lots of people are commenting on Judge Vaughn Walker's tossing of California's Prop. 8, thereby invalidating the actions of Californians who voted to define marriage in one man-one woman terms, but the American Family Association was one of only a few groups to send me a press release on it. The AFA says one thing I agree with and one I disagree with:

This is where AFA gets it right:

This case never should even have entered his courtroom. The federal constitution nowhere establishes marriage policy, which means under the 10th Amendment that issue is reserved for the states.

But it's not going to stay a state issue any more than abortion did. It's always seemed inevitable that this would be decided by the Supreme Court since the full faith and credit clause of the Constitution is going to have to be addressed at some point: Do states that don't permit gay marriage nevertheless have to recognize the marriages of those from states that do permit it? This ruling, which some have called maximalist, will probably speed up the process of nationalizing a policy one way or the other -- call this the Roe v. Wade of the gay rights movement. Feeling the pressure yet, Justice Kennedy? (He's been very supportive of gay rights but also careful to say that doesn't mean he's in favor of gay marriage. Good luck on guessing where he'll eventually land.)

This is where the AFA gets it wrong:

“It's also extremely problematic that Judge Walker is a practicing homosexual himself. He should have recused himself from this case, because his judgment is clearly compromised by his own sexual proclivity.

Well, cripes. Because Judge Walker is gay, he can't help but promote the gay agenda? Does that just apply to homosexuals, or would heterosexuals have a blind spot, too? Wouldn't straights be likely to promote the straight agenda? If we can't trust a gay or a straight to decide the case, who's left? This is one of those areas where everyone has potential conflict of interest. Smoking is another one -- everyone either smokes or doesn't smoke, right? Do we just let the women voter one women's issues, insist that people of one race can't be trusted to fairly judge cases involve another race?

Yes, yes, I know. Those in the minority, whatever the minority is, are more likely to be motivated by their status than those in the majority; that's Sociology 101. But judges are supposed to be informed by the facts