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by Frank Turk

So you know: Pack a lunch.

And before you read a single word of this post, I require of you that you read this post, by me, regarding this essential conflict involved in talking about this topic. If you do not read that post, and you want to reproach me about my post here, I will simply ignore you. You can’t know why unless you read that other link.

Back in 2000, the Jewish World Review published a categorically-brilliant essay by Sam Schulman called “Gay Marriage: fin de linge” in which Mr. Schulman simply and dispassionately dismantled the argument that sexual appetites are the basis for anything but self satisfaction. That essay, sadly, is a dead link, I am certain, that because of its force, JWR received plenty of hate mail and threats.

However, in 2003, Mr. Schulman rolled up his sleeves again and published this essay, called “Gay Marriage — and Marriage” which leap-frogged even the span of his previous essay and made what must be called the definitive secular case against gay marriage. It’s is a shame that this essay is not more widely-known in Christian circles because it would greatly reform out engagement on this topic. You should read it simply to be an informed person. (here’s the PDF for those of you so inclined to read that instead)

I bring it up because on 04 August, 2010, U.S. District Judge Vaughn Walker ruled that the California’s Proposition 8 ballot initiative denying marriage rights to same-sex couples was unconstitutional. His reasoning culminated in this statement:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite- sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

REMEDIES: Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 6 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result, see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.

IT IS SO ORDERED. (again: the PDF)

Of special interest to me in the ruling is this paragraph on page 12 of the ruling, under the heading, “WHETHER ANY EVIDENCE SUPPORTS CALIFORNIA’S REFUSAL TO RECONGIZE MARRIAGE BETWEEN TWO PEOPLE BECAUSE OF THEIR SEX”:

All four plaintiffs testified that they wished to marry their partners, and all four gave similar reasons. Zarrillo wishes to marry Katami because marriage has a “special meaning” that would alter their relationships with family and others. Zarrillo described daily struggles that arise because he is unable to marry Katami or refer to Katami as his husband. Tr 84:1-17. Zarrillo described an instance when he and Katami went to a bank to open a joint account, and “it was certainly an awkward situation walking to the bank and saying, ‘My partner and I want to open a joint bank account,’ and hearing, you know, ‘Is it a business account? A partnership?’ It would just be a lot easier to describe the situation —— might not make it less awkward for those individuals, but it would make it —— crystalize it more by being able to say * * * ‘My husband and I are here to open a bank account.’” Id. To Katami, marriage to Zarrillo would solidify their relationship and provide them the foundation they seek to raise a family together, explaining that for them, “the timeline has always been marriage first, before family.” Tr 89:17-18.

Isn’t it interesting that the judge can see with no uncertainty that marriage has “special meaning” and not merely some kind of “general meaning”? It’s actually a little horrifying because the judge actually grasps a central issue to the matter by also recognizing the “timeline” for “family” — something Sam Schulman makes into a well-rounded rational case (completely absent of religion) against making marriage into “a variety of other goods and values with which it is regularly associated by its defenders and its aspirants alike ... love and monogamous sex and establishing a home, fidelity, childbearing and childrearing, stability, inheritance, tax breaks, and all the rest.”

So what exactly is going on here? Listen: I have made this case before when Newsweek thought they had put this question to bed. This is not a question of whether or not there is equal protection under the law, but in fact a question of whether or not those advocating for the ambiguation of the definition of marriage really wanted what they say they want.

Seriously: look at the example they bring to court. Can Zarrillo and Katami really not get a joint bank account? Really? Oh wait — somehow they are ashamed to get a joint bank account. Oh no — that can’t be it because they believe they are doing nothing wrong. What is at stake here is that they want to enforce their moral choices on other people to justify their own behavior. They phrase their quandary as an opportunity they themselves are denied, when in fact they are seeking to change the way other people see them.

I wanted to say what Mr. Schulman says in my own words, but I simply cannot find a way to improve it. He says plainly:

The question addresses a class of human phenomena that can be described in sentences but nonetheless cannot be. However much I might wish to, I cannot be a father to a pebble—I cannot be a brother to a puppy—I cannot make my horse my consul. Just so, I cannot, and should not be able to, marry a man. If I want to be a brother to a puppy, are you abridging my rights by not permitting it? I may say what I please; saying it does not mean that it can be.

And to say what must be said, also from Schulman:

Marriage, to say it for the last time, is what connects us with our nature and with our animal origins, with how all of us, heterosexual and homosexual alike, came to be. It exists not because of custom, or because of a conspiracy (whether patriarchal or matriarchal), but because, through marriage, the world exists. Marriage is how we are connected backward in time, through the generations, to our Creator (or, if you insist, to the primal soup), and forward to the future beyond the scope of our own lifespan. It is, to say the least, bigger than two hearts beating as one.

This ruling is simply and abjectly unrelated to this truth — even though it clearly and categorically recognizes it.

May God have mercy on the judge who has ruled this way, on those who are rejoicing in that judge’s lack of wisdom, and on all of us who have, frankly, contributed greatly to these events.

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