Wednesday, August 4, 2010

Baby, It's Fact

Judge Walker's verdict is a fascinating and fairly clear read, and is certainly worth reading. It will be quoted in history books, though I think it is actually Judge Brown's verdicts that will be the most effective when all three gay marriage trials make it to the Supreme Court. What makes Judge Walker's verdict so interesting to me is how heavily he relies on the evidence and testimony of trial, almost all of which was provided by those in favor of gay marriage.

At issue is really whether or not gay marriages are marriages, because both parties agree that the right to marry is a fundamental right. Proponents of proposition 8 contend that the potential to procreate is intrinsic to the definition of marriage, which automatically excludes as a class same sex couples. But after tracing the history of marriage as a legal term, Judge Walker demonstrates that the potential to procreate has never been a requirement for marriage in the United States.
"The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household ... Today, gender is not relevant to the state in determining spouse's obligations to each other and to their dependents ... 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. FF48. Marriage under law is a union of equals." (pg. 113 of Perry vs. Schwarzenegger)
Using this definition of the right to marry, equal protection and due process in the constitution guarantee our right to choose a spouse regardless of gender. We can only hope that the SCOTUS will uphold the right to marry as the right to choose a spouse, but I think Judge Walker provides a compelling case given the evidence and testimony submitted in trial and given legal precedent.

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