Judge Walker and the Language of the Law Print
By Hadley Arkes   
Monday, 16 August 2010

Archeologists of the law may one day come upon these words: “Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law.” Now imagine recasting the sentence in this way: “Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to beget children.” The first line was written by federal Judge Vaughn Walker in San Francisco as he struck down the constitutional amendment passed by the voters of California, a move to restore the traditional understanding of marriage as a legal relation of a man and a woman.  Judge Walker’s argument made sense only if the notion of begetting was conspicuously removed from the very meaning and purpose of marriage. Surely, marriage is not necessary for love: There is genuine love between grandparents and grandchildren, brothers and sisters, and in the nature of things they cannot be lesser loves because they are not attended by penetration and expressed in marriage. 

Marriage is not necessary for love, but the law of marriage finds its deep justification as a framework for the begetting and nurturing of children. A commitment confirmed in law is a commitment in the truest sense: it marks the fact that the parents have foregone the freedom to quit their relation to each other and their children as it suits their convenience.  And if the purpose is begetting children . . . well, that is the very reason that there are, in nature, men and women. That is the telos or very purpose contained in the fact that we were made, each of us, as a man or a woman. 

That opening line from Judge Walker is one of only a few score that have been zinging around the Internet, soaring well beyond the tethers of reason and propositional logic. Walker’s opinion may not hold up on appeal, but his lines could lighten up our lives for years to come as they make their way into fortune cookies. 

There was never actually much doubt about the outcome in Perry v. Schwarzenegger. Judge Walker’s handling of the case revealed a leaning flamboyantly out of the closet. There has been much complaining about the so-called “facts” that Walker was willing to proclaim on the basis merely of opinions offered by so-called “experts.” But the outcome of the case on appeal will not turn on any facts gleaned from the social sciences. That is a long story, best left to another time. What is more striking here is that the resolution of the case was virtually determined by the premise planted in the law by Justice Anthony Kennedy in Romer v. Evans in 1996: The willingness to cast an adverse judgment on the homosexual life can be explained only by an “animus [lacking] a rational relationship to legitimate state interests.” Generations of reflection, running back to the ancients, could be dismissed as one long, thoughtless spasm of irrational “animus.”

With that premise planted, the arguments over Due Process or Equal Protection could be churned out in an instant. Due Process? People were suffering a harm, they were denied a benefit, their liberty to marry was being denied, on grounds that were irrational, and therefore arbitrary. Hence, the denial was unjustified, wrong. Equal Protection? Couples of the same sex were not accorded the same rights to marry as couples composed of men and women. Even if “domestic partners” were given many of the same benefits of marriage, they were treated as morally inferior, not worthy of marriage. They suffered a harm or wounding because they were treated unequally and for no rational reason. Hence, the unequal treatment was unjustified, wrong. 

But behind all of this was a trend long in the making, a radical recasting of the language and logic of a “moral” judgment. In the relentless march of “relativism,” good and bad, right and wrong, were translated to mean merely the things we “like” or “dislike,” a matter of personal taste. Justice Hugo Black would famously deride appeals to natural law and moral reasoning by reducing them to subjective beliefs. An argument with strenuous reasoning would be translated to mean that the advocate simply “liked” or “disliked” the policy. 

And curiously enough that same translation has come even from conservative and Catholic jurists in our own day who have been suspicious of natural law and the judges who invoke it. With Judge Walker the conversion of terms took this form: “the state cannot have an interest in disadvantaging an unpopular minority group simply because the group is unpopular.” Walker simply rules out the notion that there may have been reasons for turning away from the homosexual life. Homosexuals were simply “disliked,” an aversion without reason. “Moral judgments” come down in the end to irrational beliefs; and they could supply then no justification for the law.

In this way, the wave of relativism inverts language and dissolves any moral ground for the law. What is left then is the bald power of a judge to strike down whatever is enacted. Justice Holmes hoped that “every word of moral significance could be banished from the law altogether,” and Judge Walker stands in the line of his heirs. The result, in this case, is to deprive the people of California of the freedom to deliberate and vote on a matter of moral significance that stands at the very matrix of the laws.

 
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths:  The Touchstone of the Natural Law

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