Predictably, Judge Walker’s decision in Perry v. Schwarzenegger striking down California’s voter approved Proposition 8 has infuriated foes of gay marriage, who have condemned his opinion as judicial activism, a rejection of democratic process, and an agenda-driven farce. Walker himself is being attacked for having a conflict of interest, because he is widely believed to be gay himself. (The belief that a gay judge cannot rule objectively on the issue of gay marriage while a straight judge can is itself an expression of bias.) This is not surprising. What is surprising, at least to me, is that the only substantial argument critics of the opinion can articulate is based on the exact proposition Walker rejected in his opinion: that laws should be able to prohibit conduct based on morality and tradition alone, without quantifiable and verifiable reasons relating to the best interests of society. By insisting that a California law that would withhold a fundamental right—marriage—from a class of Americans must justify itself with reason rather than tradition, Judge Walker ruled that it is ethics, not morality, that should govern American law and justice.

The crux of his opinion was the constitutional doctrine that forbids laws that have no conceivable rational purpose except to oppress a politically unpopular minority group. In writing that “moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples” and holding that those views alone cannot meet the rational purpose test, Walker asserted, presumably intentionally that moral and religious beliefs, without more, were not strictly rational.

This has led many opponents to gay marriage to take personal offense, believing that they had been labeled irrational bigots. “A federal judge in San Francisco ruled Wednesday that President Obama is a bigot,” wrote one columnist. “And not just the president. Joe Biden as well, and Hillary Rodham Clinton and Sandra Day O’Connor. And maybe you, too.”  This goes too far. Politicians and judges who refuse to oppose publicly popular bigotry may be pragmatists, cynics, hypocrites or cowards, without necessarily being bigots. Benjamin Franklin agreed to allow the Declaration of Independence to omit a condemnation of slavery, not because he supported the institution but because he knew that such a provision would doom independence. Yielding to bigotry is not the same as bigotry, though it has the same effect.

Even this objection to Walker’s opinion, however doesn’t offer a rational justification for banning same-sex marriage, for “unbigoted people oppose gay marriage too” is not an argument. I have been scanning blogs, newspapers and discussion boards all weekend, and after all the sound, fury and dross has been cleared away, the argument against gay marriage is this: the accumulated wisdom of tradition, morality and religion has concluded that same-sex marriage is un-natural and harmful for thousands of years, and that conclusion should be accorded deference and respect by the judicial system and the law. Yet even this isn’t an ethical argument, addressing the ethics question of “Why is it wrong?” It’s wrong because historically most cultures have regarded it as wrong. As Mathew Franck wrote, he supposed convincingly,

“For such moral principles are not articles of faith, in the sense of being specially revealed to the elect or the faithful. They are the conclusions of trains of reasoning about right and wrong, and about human ends and the fitness of the means to them. In language we might borrow from Plato’s Euthyphro, the moral norms that govern marriage are embraced by the pious not because they are mysterious commands of an inscrutable divine will, but because they are rationally knowable as good in themselves, and for this reason find support in the dictates of faith as well.”

There is truth in this statement, for all moral codes were originally based on very rational observations and considerations that were properly deemed essential for the preservation of tribes, races, nations, and species. They were all rational once, or at least seemed so. But moral codes cemented in tradition are slow to change, and almost always lag behind ethical analysis, which requires a lot of thought and debate before anything approaching a consensus can be reached. Franck’s implication that traditional moral norms embody intrinsic and immutable truths, however, is demonstrably wrong. Society learned that races were not superior to one another and that women were not on earth to serve men. The ancients were wise, but they weren’t infallible. For the state to support a moral norm with the force of law, the moral norm must not have made sense once, or a thousand years ago, for many centuries, but now and for the forseeable future. The taboo against homosexuality and the resulting exclusion of gay couples from the societal endorsement represented by state-sanctioned marriage indeed has no rational basis any more, if indeed it ever did.

This is why so much of Judge Walker’s opinion was devoted to examining the claims, pro and con, about gay marriage. This is ethics in action, and it is also the proper job of a judge. To argue, as the advocates of Proposition 8 do, that the “tradition” against gay marriage is enough to support the removal of what the Supreme Court has ruled as a basic right of citizenship without more than just popularity and longevity to support it, is to reject the process whereby societies get smarter, kinder, and more ethical. The government and the law needs to both follow the culture and to lead it, and the time to lead is when a powerful and popular tradition is recognized as unjust and harmful.
Conservative columnist Maggie Gallagher refuses to accept this, and cast Judge Walker’s rejection of the vox populi when the vox populi is both abusive and irrational as approaching totalitarianism:

“…the American people were and are right to fear that too many powerful judges do not respect their views, or the proper limits of judicial authority. Did our Founding Fathers really create a right to gay marriage in the U.S. Constitution? It is hard for anyone reading the text or history of the 14th Amendment to make that claim with a straight face, no matter how many highly credentialed and brilliant so-called legal experts say otherwise. Judge Walker has added insult to injury by suggesting that support for marriage is somehow irrational bigotry, akin to racial animus. The majority of Americans are not bigots or haters for supporting the commonsense view that marriage is the union of husband and wife, because children need moms and dads.

Judge Walker’s view is truly a radical rejection of Americans’ rights, our history and our institutions that will only fuel a popular rebellion now taking place against elites who are more interested in remaking American institutions than respecting them. If this ruling is upheld, millions of Americans will face for the first time a legal system that is committed to the view that our deeply held moral views on sex and marriage are unacceptable in the public square, the fruit of bigotry that should be discredited, stigmatized and repressed. Parents will find that, almost Soviet-style, their own children will be re-educated using their own tax dollars to disrespect their parents’ views and values.”

Gallagher’s hysterical reaction is, amazingly, typical of the critiques of Walker’s ruling, in substance if not in style, full of anger that a traditional view has been declared irrational, without having a single honest fact or argument to counter his conclusion. The Founding Father’s didn’t anticipate gay marriage? No, and they didn’t anticipate women running for office and a black man being President: they were statesmen, not fortune tellers. Gay marriage is wrong because of the “commonsense” conclusion that ” children need moms and dads.” How does allowing gay couples to marry stop kids from having moms and dads, and how does Gallagher justify senior marriages, childless marriages, and divorce applying the same “commonsense”? True common sense suggests that kids need parents, and that a child adopted by a loving same-sex couple is a lot better off than a child with no parents at all, or even one.

“Judge Walker is off-base: same-sex marriage is not a civil right, it is a civil wrong,” Gallagher concludes. And why is it a “civil wrong”? Well, it just is, that’s all. That’s what’s so convenient and powerful about moral codes: they don’t require explanations or reasons any more. They just are.

Governments and courts need rational reasons to justify laws, especially laws that employ a separate and thus inherently unequal policy to deprive Americans of basic rights. That’s why they must use ethics, not morality, and why opponents of gay marriage need more than ideology, indignation, anger, and fealty to taboos established by men who believed the sun traveled around the earth to oppose a ruling based on facts, reason, respect and fairness.

But that’s really all they have.

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NOTE: If you want to read a long but fascinating online debate that shows this clearly, go here. The Volokh Conspiracy, a conservative blog with an unusually erudite readership, argued over Gallagher’s column and Judge Walker’s opinion  for most of the weekend. Many aspects of the gay marriage issue are covered, including the useful point that religious marriages can still be defined any way a church chooses, and that it is the state’s version of marriage—which could just as easily be called “civil unions” for everyone—that causes the most conflict. [Though I vividly remember my father walking the family out of a Greek Orthodox Church service after the priest announced that the Church did not recognize marriages between Church members and non-Greek Orthodox spouses, and that the children of such unions—like me and my sister—were illegitimate. I can tell you, based on how my Methodist father was treated by much of my Greek Orthodox mom’s family, that a large number of Greek-Americans agreed with the priest. Fortunately, the official Church view never made it into a “commonsense” statute.] In over 400 comments, however, substantive justification for Proposition 8 is essentially limited to “God said so,” “it’s tradition,” and “the people know best.”

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