U. S. District Court Judge Vaughn Walker recent reversal of the ban on gay marriage in California could itself in appellate courts be reversed. The following are six possible areas of constitutional dispute.
One, some argue that the Equal Protection Clause of the 14th Amendment protects gay marriage. But there is no settled, absolute standard of what the clause “equal protection of the laws” means. Some use the clause to defend affirmative action, insisting such action is first necessary for minorities to be brought up the starting line to enter the race with equality.
Others, directly to the contrary, argue that affirmative action violates the equal protection clause because it sanctions discriminatory acts in favor of certain groups over other groups. Hence, because Judge X believes that the 14th Amendment protects gay marriage does not mean that Judge Y does.
Two, one of the arguments in Walker’s court in defense of gay marriage is that it is, as counsel David Boies asserted, a “private contract”—such as we see enumerated in Article I, Section 8 of the Constitution, which declares that no law can impair the “obligation of contracts.” But if a private contract between two consenting adults is legal, by what legal logic can a private marriage contract between, say, a consenting man and two consenting women not be constitutionally protected?
If the precedent of secular private contracts is widely broadened, such will protect private contracts for polygamy, adultery, pornography and prostitution.
Three, what makes a right constitutional or fundamental? A fundamental right, according to the standard in Washington v. Glucksberg (l997), is one that is “deeply rooted in this nation’s history and traditions” and “implicit in the concept of ordered liberty.” While homosexuality is ancient, gay marriage itself is not deeply rooted in this nation’s history and traditions.
Four, a fundamental right requires a “rational basis.” The rational basis for a marriage between a man and a woman is to create the perpetuation of life on Earth. Gay couples alone cannot create life. Gay marriage therefore is not equal to heterosexual marriage and therefore might not be protected by the Equal Protection Clause.
Five, all judges are governed to some degree by a judicial philosophy. They do not come to the bench with blank minds. Justice Antonin Scalia’s judicial philosophy is different from Justice Ruth Bader Ginsburg’s. Scalia is generally conservative; Ginsburg, generally liberal. Judge Walker has a judicial philosophy, too, but it could be countered by different philosophies in appellate courts.
Six, there is a question of jurisdiction. The equal protection clause of the 14th Amendment is cited as protecting gay marriage. But there is also a 10th Amendment that declares that “powers not delegated to the United States by the Constitution … are reserved to the states.” Appellate courts could rule that jurisdiction of gay marriage rests with the states.
My own personal views on gay marriage are irrelevant, but I do assert that the constitutionality of gay marriage is now subject to large hurdles. Due process through appellate courts could take two to four years.