Federal Judiciary

If he voted no a couple of years ago, Judge Walker wasn't alone. More than 6.4 million Californians voted against Proposition 8. At 48 percent, that was almost enough to constitute a majority. But Judge Walker presumably got two bites at the apple: First in the voting booth, then from the bench when he invalidated the votes of the 52 percent of people who voted the other way. It's nice to be judge.

#ad#Judge Walker's decision is such a raw exercise of judicial imperiousness, he might as well have gone all the way and sentenced the defenders of Proposition 8 to suffer, Chinese-style, a parade of shame through the streets of San Francisco wearing placards emblazoned 'I Support Bizarre and Retrograde Social Practices.'

The social practice in question is traditional marriage defined as a union between a man and a woman, which Judge Walker finds dangerously passé. Sure, it had a good run during the past couple of millennia or so, but in August 2010, we're beyond age-old parameters of fundamental social institutions -- no matter what a majority of California voters might say, or the voters of the 29 other states that prohibit gay marriage in their constitutions.

From the first, Judge Walker made it clear that he didn't want to rule on the legal merits of the case -- a relatively simple matter of issuing a summary judgment -- but literally to relitigate Proposition 8. Before he was smacked down by the U.S. Supreme Court, he planned to televise his court's proceedings. Everything signaled, as Ed Whelan of the Ethics and Public Policy Center wrote, his desire 'to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial.'

In his decision, the judge issued 80 'findings of fact.' All said findings and all said facts happen to support his belief that Proposition 8 was so errant that a bolt of lightning should have struck it from the ballot. For the sake of argument, let's stipulate that Judge Walker is right. In that case, he and like-minded people should come up with, say, Proposition 9 overturning the ban and persuade 50.1 percent of Californians to support it. How difficult can that be given that, per Judge Walker, every single fact is on their side?

But convincing the voters to change their minds would require some patience and respect for people's moral sensibilities, both of which are in short supply among supporters of gay marriage. It's far easier to convince one judge who doesn't truly need convincing to mint a new constitutional right to gay marriage. The cost of this exercise is the outrageous high-handedness that it entails and that pervades Judge Walker's decision.

He concludes that Californians had no rational basis to vote for Proposition 8. One wonders how he stands living among such a sea of bigotry. As self-appointed arbiter of what's good and right about marriage, child-rearing, and gender roles, Judge Walker brooks no dissent. It's 'beyond debate' that gay marriage 'has at least a neutral, if not a positive, effect on marriage.' It is 'beyond any doubt that parents' genders are irrelevant to children's developmental outcomes.'

All of that has been settled, and if you don't believe it, well, Judge Walker said so. He describes traditional marriage as 'an artifact of a time when the genders were seen as having distinct roles in society and marriage.' Behold the boundless power of Judge Walker -- even gender distinctions can't survive the awesome finality of his pronouncements.

If the audacious sweep of Judge Walker's decision delights proponents of gay marriage, it also invites a reversal as the case heads inevitably to the Supreme Court. May it be swift and decisive.

-- Rich Lowry is editor of National Review. He can be reached via e-mail, comments.lowry@nationalreview.com.  © 2010 by King Features Syndicate.

Full post as published by Bench Memos - National Review Online on August 06, 2010 (boomark / email).