My take on Walker's decision...

Playful Walrus's in-depth look at Walker's decision is a good read. I'd like to also share my take on this. A few years ago I read an interesting essay called, "Conciliating Hatred". Oddly enough, it talks about the very reasoning that Walker used in his judgement.

Walker, it seems, has found animus as the only motivation for being for Prop 8. I disagree with that, naturally, but lets take that finding for what it is. For the ground he runs to as his moral high-ground is itself an interesting place. From the essay,

Legal justifications vary, obviously, depending among other things on whether the particular controversies to be conciliated are presented in cases litigated under the First Amendment, the Fourteenth Amendment, or some other provision of the Constitution. But underlying the surface differences in doctrine and vocabulary, a favored strategy seems to be emerging: we might call it the "evil-motives strategy." Asked to justify a law, program, or regulation, the government that sponsored it will predictably offer up some respectable-looking purpose or interest. If the Justices want to uphold the measure, they can simply accept that justification. But if they want to invalidate a divisive measure, they can find the stated purpose to be merely a cover for some more nefarious motive--for racial or religious bigotry, or "animus," or "a bare desire to harm a politically unpopular group" (quoting now from the 1996 decision in Romer v. Evans). In essence, the measure is struck down for being a product of hatred.

On their face, to be sure, most constitutional doctrines do not make evil motives the test of validity (though some do). The explicit vocabulary often is about the "balancing" of state and individual interests, or about the protection of "fundamental rights." But the Court has never even pretended to work out any methodology for actually balancing competing interests, which are, in truth, both unquantifiable and incommensurable. And "fundamental rights" not actually mentioned in the Constitution will always be controversial, and squishy. In the cases considering sodomy laws, for example, Justices and scholars clash over whether the right at stake is a right to engage in homosexual sodomy, a more general right of sexual freedom, or (as Justice Blackmun insisted) an amorphous "right to be let alone." And they argue about whether the right, whatever it is, comes under the rubric of "liberty," or "privacy," or "equality," or something else.

Students of constitutional law who must study these cases may applaud or deplore the various decisions in accordance with their own convictions and sympathies; but they quickly learn not to expect anything like a cogent explanation of why, say, a right to terminate a pregnancy is "fundamental," but a right to terminate one's own life is not. The plain fact is that, realistically speaking, judges have little or no competence to balance interests or, where the Constitution is silent, to give a plausible account of what are and what are not fundamental rights. It is doubtful whether social scientists or political philosophers could perform those tasks to anyone's satisfaction; and judges are in any case not social scientists or philosophers.

Determining and assessing motives, on the other hand, may seem like something more within the province of judges. Don't judges do that kind of thing all the time--in criminal cases, for example? Thus a focus on motivation has long been evident in racial discrimination cases, where discriminatory purpose is the main test of constitutionality, and also in religion cases. The Court has invalidated measures providing a "moment of silence" in public schools, as well as measures mandating the "balanced treatment" of evolution and creationism in a school's curriculum, because the Justices were sure that, behind the respectable purposes offered for these measures, there lay the sinister motive of establishing religion. And the Court struck down ordinances passed by the city of Hialeah restricting the ritual slaughter of animals by rejecting as mere pretexts the city's protestations that it was acting to prevent unwarranted cruelty to animals and to safeguard public health. (The animal carcasses were typically dumped on lawns or in public places.) The Justices ascertained, at least to their own satisfaction, that Hialeah was in reality acting on the evil motive of hostility to the Santeria religion.

In other contexts, the resort to an evil-motives jurisprudence is veiled but still discernible on close examination. Thus a generation ago the eminent constitutional scholars John Hart Ely and Cass Sunstein independently showed how a host of constitutional doctrines that do not explicitly make motivation the test of constitutionality are in fact devices for sniffing out illegitimate governmental purposes.

Essentially, to found a decision on animus is a political rather then a legal maneuver. One that we overlook because deep down we all hate people who hate people -- unless we hate them too. It is a moral stance of being nice to everyone, yet like fingernails clinging to the cliffs edge, is the last resort of the amoral to find some kind of morality to justify decisions. It is the nice dovetail that reconciles the otherwise inherent contradiction in Walker's ruling where he openly shows animus towards morality in the decision process of the voters, while appealing to the morality of friendliness to give him adequate legs to move the court the direction he wanted to.

His ruling is as contradictory and arbitrary as the King of Hearts in Alice in Wonderland in its appeal to morality. Even in its appeal to disdain. A commenter I read recently noted how closely his ruling matches the Humanist Manifesto more than our constitution.

Here is what this decision is truly based on. Tenet #6 of Humanist Manifesto 2

SIXTH: In the area of sexuality, we believe that intolerant attitudes, often cultivated by orthodox religions and puritanical cultures, unduly repress sexual conduct. The right to birth control, abortion, and divorce should be recognized. While we do not approve of exploitive, denigrating forms of sexual expression, neither do we wish to prohibit, by law or social sanction, sexual behavior between consenting adults. The many varieties of sexual exploration should not in themselves be considered “evil.” Without countenancing mindless permissiveness or unbridled promiscuity, a civilized society should be a tolerant one. Short of harming others or compelling them to do likewise, individuals should be permitted to express their sexual proclivities and pursue their lifestyles as they desire. We wish to cultivate the development of a responsible attitude toward sexuality, in which humans are not exploited as sexual objects, and in which intimacy, sensitivity, respect, and honesty in interpersonal relations are encouraged. Moral education for children and adults is an important way of developing awareness and sexual maturity.

Other tenets and the preface to this document repeatedly state that all religions offering salvation and an afterlife and judgment are irrational and outmoded. So then, they are bound and determined to eliminate any law based on God and the things of God. Sooner or later, they will come for us who believe.

My purpose is not to argue with the Humanists. I only point out that the code is a moral code, and anyone can correct me if it does not appear to be a more concise telling of the moral reasoning of Judge Walker. It is the simple moral, the "thou shalt not", to Walker's more lengthy decision whether or not it was specifically referenced.

Marriage equality as expressed by the marriage neuterists (and as enforced by Walker's opinion) is essentially an equal endorsement of sexual liberty, although limited in a self-centered way in many cases. But true marriage equality only happens when the mother loves and supports the father, and the father loves and supports the mother. And they equally recognize the claims the children have on their support, love, and intimate knowledge of their heritage. It is limited not in application, but in its core recognition of how babies are made, and the rights and entitlements those babies immediately can claim of the two people who combined to create them.

Hence, marriage is about who most deserves your love, tolerance and support. I take issue with the legal reasoning it is grounded in as well as the arguments at face value because that never changes. Divorces happen in heartache, children are separated from their parents only with tragedy. And that is because they are most entitled to our love and support. The question I have for Walker, and all of his endorsers is this. If marriage cannot explicitly support in-tact families, if it cannot explicitly endorse the equality expected between the man, woman and child they potentially have together because that is dangerously heteronormative, what can? I think we all agree that is a valid state interest, I think that is the finding of fact on which I build my own decision.