Judge Walker's Assault on Marriage and the 'Most Dangerous Branch' of Government

Marriage is a unique institution with a privileged place because it is foundational to the good of society

Behind this Court opinion, and the strong reaction against it, are two very different visions of the human person, human love and the dignity of human sexuality, human flourishing, marriage, family, society and the common good. These competing visions are contending for the future of the West. One will lead to true human progress, flourishing and freedom, the other to human degradation and cultural collapse.

P>WASHINGTON, DC (Catholic Online) - It has been almost 35 years since my first Law School discussion on the proper role of the Judicial branch. The Professor used the phrase "least dangerous branch", to summarize #78 of the Federalist papers, attributed to Alexander Hamilton. Hamilton argued that the Judicial Branch was the "least dangerous" because it possessed neither the "power of the purse" nor "the sword". 

There can be no doubt that the Hamiltonian judicial vision is not shared by Federal District Court Judge Vaughan Walker. In his abysmal opinion of August 4, 2010, he set aside Proposition 8 which reflected the clear will of the people of California. He is now lending the authority of his office to a fringe group of homosexual equivalency activists who oppose the truth confirmed by the Natural Law about the nature of Marriage.

I weighed in on this tragic opinion the day it was released in an editorial entitled "California Judge Manufactures Right to Homosexual 'Marriage', Sets Aside Proposition 8." I was certainly not alone. The reaction was swift and strong from several Bishops of the Catholic Church. However, one of the clearest renunciations of this egregious decision came from Sister Mary Ann Walsh, the director of media relations for the United States Conference of Catholic Bishops. She penned a piece for the Washington Post entitled "Prop 8 overturned: "The law is an ass" which is well worth reading.   

Judge Walker's opinion was intentionally crafted to attempt to influence the outcome of the inevitable hearing of this case by the United States Supreme Court. In what are mislabeled as "findings of fact" (which become the record considered by the Supreme Court) he inserted his own prejudices such as exhibited in "Findings of fact #77" which reads "Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians."  Sister Mary Ann Walsh took the Judge to task for this:

"What is even more irrational is the judge's dismissal of the U.S. Constitution's First Amendment and Freedom of Religion with these damning words: "Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians." The judge's placing religion and government at odds amounts to Constitutional irrationality. It is no small irony that his anti-religious position is enshrined in a ruling deemed to oppose bigotry. The U.S. Constitution guarantees citizens freedom for religion. That precludes government from weighing in on the "acceptability" of religious beliefs.

"Judge Walker, in his decision, backed his bigotry with errors, including the misstatement that the "Catholic Church views homosexuality as sinful." The fact is, the Catholic Church sees homosexuality as a condition, an inclination in a person, something not intrinsically sinful. The church calls for pastoral support, not condemnation, for people with this inclination. The Catholic Church makes clear that it is homosexual activities it deems sinful, because it holds that all sexual activity belongs within marriage between a man and a woman. At the same time the Catholic Church opposes all unjust discrimination against gays and lesbians and abhors violence against them.

"The Catholic Church also holds that marriage is a unique institution with a privileged place because it is foundational to the good of society. The church is not alone in holding that a family headed by a mother and a father is the optimal place in which to raise a child. Judge Walker begs to differ, however, and says with grand aplomb that research that supports the contrary view "is accepted beyond serious debate in the field of developmental psychology." If there's ever been a statement open to debate it's that one. Judge Walker devoted three pages of his decision to make his case for the bigotry of religion, an insult to the tens of millions of religious people in the nation."

Sister Walsh is not only courageous, she is correct. Authentic marriage is the preeminent and the most fundamental of all human social institutions. It is a relationship revealed by the Natural Law which can be known through the exercise of reason. It finds its foundation in the order of creation. It has been long recognized, across cultures, and has informed Western Civilization. Civil institutions do not create marriage nor can they create a "right" to marry for those who are incapable of marriage.

Groups such as the Human Rights Campaign and the Lambda Legal Defense Fund are the shock troops of the new Cultural Revolution. They know what they are doing and are well funded. They are the ones behind the "talking points" such as the improper comparison between this incorrect judicial opinion in the California case and the correct opinion in the 1967 Supreme Court Case of Loving v. Virginia. That correct opinion properly struck down as unconstitutional  a Virginia law prohibiting marriage between a black man and white woman or black woman and white man.

The comparison the Homosexual Equivalency Activists make between these two cases is an utterly false one. The Lovings, whose marriage became the basis of that important US Supreme Court opinion, were a man and a woman. As such they were capable of and entered into a marriage. It was an unjust law which declared their proper and loving union to be "illegal" because they had differing skin pigmentation! It was rightly struck down as an egregious violation of the Equal protection clause.

What the proponents of the Homosexual Equivalency Movement demand is that the Police Power of the State be used to force people to call a relationship which is incapable of being a marriage - a relationship between a man and a man or a woman and a woman who engage in non-marital sexual acts together for a protracted period of time- be legally treated as a marriage, or else those who refuse to do so will face penal and civil consequences.

The institutions of government should, when acting properly, defend true marriage. Government has long regulated marriage for the common good. An example is the ban on polygamy. Age requirements are enforced in order to ensure that there was a mature decision at the basis of the Marriage contract. To "limit" marriage to heterosexual couples is not discriminatory now, nor has it ever been. Homosexual couples simply cannot bring into existence what marriage intends by its very definition.

The "most dangerous branch" has succumbed to the errant judicial philosophy of legal positivism which asserts that "The law is what the courts say it is." Make no mistake; those who claim that this is simply a matter of "tolerance" are actually the most intolerant. They will seek to force their brave new world on the rest of us. Watch how intolerant they are of those who, though respecting the dignity of every person, including homosexuals, also insist that marriage is what it is and not what some renegade Court redefines it to be.

Behind this Court opinion, and the strong reaction against it, are two very different visions of the human person, human love and the dignity of human sexuality, human flourishing, marriage, family, society, what is best for children and the common good. These competing visions are contending for the future of the West. One will lead to true human progress, flourishing and freedom, the other to human degradation and cultural collapse. Get ready for a long struggle. In the interim, the decision out of California clearly proves that the Imperial Judiciary, the "Most Dangerous Branch" of Government, needs to be reined in. 

---

'Help Give every Student and Teacher FREE resources for a world-class Moral Catholic Education'

Copyright 2021 - Distributed by Catholic Online