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Gay Marriage to Live Happily Ever After: Ann Woolner

Aug. 6 (Bloomberg) -- This week’s ruling in California represents more than a setback for opponents of same-sex marriage. It lays bare the sparseness of their evidence, the emptiness of their legal arguments and the hollowness of their claims that gay marriage would somehow undermine straight ones.

In 136 pages, U.S. District Judge Vaughn Walker analyzed testimony and studies that were scientific, historical, sociological and personal. He examined arguments constitutional and political.

And when he was done, he left little obvious room for reversal on appeal. However conservative the U.S. Supreme Court has become, and however sharply it is divided, chances are decent that the thrust of Walker’s order will survive.

What he said was this: It violates the Constitution’s equal-protection promise to deny a minority group the fundamental right to wed. He found no compelling state interest in forbidding such marriages.

There was no credible evidence that society, the institution of marriage, children or anyone else would be harmed if gay people marry, he ruled. In fact, all evidence pointed to the benefits of letting people marry those they love and giving their children a more stable, legitimized family life.

Without any rational basis for banning these marriages, all that’s left is “the belief that same-sex couples simply are not as good as opposite-sex couples.” Whether the belief stems from religion, moral disapproval or animus, none can justify discrimination, Walker said.

No License Lines

Couples can’t line up for licenses yet. Walker temporarily halted enforcement of his order until he can decide whether to make it effective during the appeal. The lawyers’ briefs on the question are due today.

It may seem plain wrong that one federal judge in San Francisco could reverse the will of millions of Californians, who voted by a 52 percent majority to amend their constitution to bar same-sex marriage.

Those who assume Walker must be some sort of liberal activist might be surprised to learn he was first nominated by President Ronald Reagan and blocked by Democrats including Nancy Pelosi, who feared he was insensitive to gay and minority rights. George H.W. Bush finally got him on the court.

Critics of the ruling are crying foul nonetheless, citing a San Francisco Chronicle column from February that said it’s an “open secret” that Walker is gay, something the judge has neither confirmed or denied.

Fundamental Right

Opponents of same-sex marriage stress that the U.S. Constitution offers no specific protection for it, and no Supreme Court ruling has done that, either.

The problem with Proposition 8 is that the majority can’t vote to deny a minority a fundamental right protected by the Constitution without a really good reason.

And if you read Walker’s order, you see that the evidence at trial was completely lopsided in favor of gay-marriage supporters, as was the legal basis for their claim. We will get back to that shortly.

For those hoping the Supreme Court will find Walker’s ruling flat-out wrong, I offer these words: Lawrence v. Texas.

That was the court’s 6-3 ruling that said Texas couldn’t make gay sodomy a crime, notwithstanding “profound and deep convictions accepted as ethical and moral principles.”

Tie Breaker

The 2003 case is salient now not only for its ruling, repeatedly cited in this week’s California decision, but also for its author. That would be Anthony Kennedy, these days the justice most likely to break an ideologically tied vote.

Kennedy also wrote the 1996 opinion that struck down a Colorado constitutional amendment meant to allow discrimination against gays in housing, jobs and just about everything. That, too, was 6-3.

The “disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence,” Kennedy wrote in that one.

Justice Antonin Scalia, in his dissent in the Lawrence case, said decriminalizing gay sex softens the ground for gay marriage rights.

The court, he wrote, “has largely signed on to the so-called homosexual agenda,” which is “directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

Legal Movement

However risible the term “homosexual agenda,” Scalia correctly identified a movement aimed at ending discrimination based on sexual orientation.

And if the Supreme Court has, indeed, signed onto it, Walker’s ruling stands an excellent chance of holding up.

It’s always risky to count Supreme Court votes so far in advance. One justice has yet to take her seat, and another has barely warmed hers. Plus, we like to think the fine points of the law will be duly considered on their merits by open-minded jurists, ideology notwithstanding.

Having stated those caveats, let’s call a 4-4 ideological split probable, with Kennedy breaking the tie in favor of gay marriage.

At the trial in California, proponents of same-sex marriage rights offered nine multidegreed, well-published experts in an array of relevant fields. They said research shows children of gay couples were as likely to be well-adjusted as children of opposite sex couples, and same-sex marriages won’t undermine “traditional” marriage.

Expert Testimony

Gay-marriage opponents offered only one “expert” claiming to know something about homosexuality and marriage. He had no academic training in the topic and no original research, unless you count surfing the Internet as research.

And, oh yeah: He testified that polygamy is really a two-person marriage because the husband has a one-on-one relationship with each wife.

The only other expert for the opponents’ side was a professor called to talk about the political strength of gays and lesbians. He had to acknowledge he actually knew very little about the subject.

It turns out gay-marriage opponents were far more successful at convincing California voters they should fear same-sex couplings than they were at convincing the judge.

But then, in the popular arena, you don’t have to back up your claims with facts. You can rely on prejudice to help you fan fears. It’s fine to base your campaign on purely religious grounds. None of that works in court.

At least, it didn’t work in Walker’s court.

(Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own.)

To contact the writer of this column: Ann Woolner in Atlanta at

To contact the editor responsible for this column: James Greiff at

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