If there was any doubt that Judge Vaughn Walker would allow his personal views of homosexuality trump legal reasoning, he removed that with his ruling today overturning California’s ban on same-sex marriage. Fortunately, the reasoning is so jaw-droppingly stupid that it will be overturned on appeal when it reaches the Supreme Court. Since Walker is (presumably) not a stupid man, he has to know that his ruling is weak and has no basis in actual reason . The only explanation is that he decided that sending a message of support to his friends in the gay community was more important that applying coherent legal reasoning to interpret the law.

Admittedly, this is a serious accusation. Yet I think it can proven with a simple test: Ask Judge Walker if his reasoning applies to polygamous marriage. In the decision he handed down, Walker find no rational basis for denying this fundamental right to same-sex couples. But every one of his reasons applies equally to polygamy.

I am not claiming that his reasoning leads to an argument ad absurdum . That would be a lateral move from one absurdity to another. What I’m claiming is that, if he is consistent, Walker would have to conclude that his rational basis criteria effectively overturns not only the ban on same-sex marriage, but the ban on polygamy.

Here are key excerpts from his opinion . (I assure you that this summary (which was compiled by the Wall Street Journal ) comes from the actual opinion and not from The Onion .)


Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society. (Page 85)

This one is straightforward: replace “polygamous partners” for “gays and lesbians and it would be equally as applicable.
Proposition 8 has had a negative fiscal impact on California and local governments. (Page 90)

Even for an opinion riddled with idiotic reasoning, this justification is exceptionally ridiculous. Almost every law passed has a negative fiscal impact on California. That does not make them unconstitutional. Nevertheless, if preventing homosexuals from marrying has a negative fiscal impact, the same must hold true for denying polygamists the right to marry.
Proposition 8 increases costs and decreases wealth for same sex couples because of increased tax burdens, decreased availability of health insurance and higher transactions costs to secure rights and obligations typically associated with marriage. Domestic partnership reduces but does not eliminate these costs. (Page 91)

The same holds true for polygamists.
Proposition 8 singles out gays and lesbians and legitimates their unequal treatment. Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents. (Page 93)

The same holds true for polygamists. Both research and common sense support the idea that children function better when they have both a mother and a father. In a polygamous marriage, the child would generally not only have a mother and father but a spare parent as well. Imagine the benefit of having both parents at work and yet still having a parent who can stay home with the children.

Since many children in America already have multiple stepparents, why would it be any more detrimental to their psychological health to have all these parents living under the same roof?

Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology. (Page 95)

The evidence is exactly the opposite of what Walker concludes. But it’s not like he really cares about facts anyway. Nevertheless, the same mythical social science studies could be used to support polygamous marriage.
The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child. (Page 105)

No they didn’t. Walker is either ignorant or dishonest. But again, we could apply the same reasoning to the stigmatization of polygamists.
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. Gender no longer forms an essential part of marriage; marriage under law is a union of equals. (Page 113)

Even Walker isn’t dumb enough to believe that gender no longer forms an essential part of marriage. But if that’s the reasoning we are using, then the multiplication of genders would not change the conclusion.
Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex. (Page 121)

Since polygamists would be marrying someone of the same sex, this reasoning is applicable.
Proposition 8 . . . enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.

The evidence shows that the state advances nothing when it adheres to the tradition of excluding same-sex couples from marriage. Proponents’ asserted state interests in tradition are nothing more than tautologies.

In the absence of a rational basis, 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. 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. (Page 132)


Unlike gay marriage, polygamy has been widely practiced throughout history. There are few civilizations, religions, or cultures where polygamy has not taken root.

In fact, almost ever religion has, at some point in their development, accepted the legitimacy of polygamy. All of the major world religions—Judaism, Islam, Hinduism, Buddhism, Christianity—have condoned the practice of taking multiple spouses. In contrast, none of them has ever tolerated, much less openly accepted, same-sex marriage.

The same holds true for most every culture on earth. Out of 1170 societies recorded in Murdock’s Ethnographic Atlas , polygyny (the practice of men having more than one wife) is prevalent in 850. Even our own culture, which has an astoundingly high divorce and remarriage rate, practices a form of serial polygamy.

The reasons for favoring gay marriage while excluding polygamy are completely arbitrary and based on personal preference. If you truly believe that gays have a legal right to marry then you have no grounds for barring polyamorous groups from doing the same.

This leaves proponents of same-sex marriage with two choices. They either have to accept that polygamy is just as legitimate as gay marriage or they must admit that there is no inherent “right” to expand the definition of marriage. In the past, they’ve been hesitant to defend the practice because it is politically unpopular. However, as studies have shown, most homosexual do not have an actual objection to polyamourous relationships, so we can expect that their political clout continues to grow, they will feel more comfortable admitting that they don’t really oppose polygamous marriage.

Walker may be willing to admit this already. He is able to say, with a straight fact, that there has never been a rational basis for denying homosexuals the right to marry. And if it is true, as he claims, that same-sex marriage fall within the purview of the equal protection clause, then polygamy must also have to be included.

But If it is not an inherent Constitutionally protected right, then the citizens retain the ability to decide the legal status of matrimony—whether gay, straight, or polyamorous. The people could even lobby their legislatures to allow same-sex marriages while excluding polygamous unions since the legislative branch has a greater degree of latitude in making arbitrary distinctions than does the judiciary.

Of course if they did, Judge Walker would conclude—based on his rational basis criteria—that the legislature did not have a proper basis on which to legislate. For him, unelected judges—not the people, not the rule of law—are the final arbiters of what is proper and reasonable.

If this is the standard then he should at least be consistent: If the courts have the authority to decide if a woman can marry another woman, then they must afford the same right to a woman, a woman, and a man.

Articles by Joe Carter

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