He states, for example, that "marriage has retained certain characteristics throughout the history of the United States." It requires that two parties "give their free consent to form a relationship, which then forms the foundation of a household," and that "the spouses must consent to support each other and any dependents." He cites case law affirming that "the state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace," and that "the state respects an individual's choice to build a family with another and protects the relationship because it is so central a part of an individual's life."
Because he believes these statements can be applied equally to homosexual unions, such unions, in his opinion, also fit our concept of marriage. The problem with that is that he can't artificially extend to homosexual unions ideas that were, by their context, intended to apply only to heterosexual marriage. The fact that two types of unions contain certain similar attributes does not negate the fact that at their core, those unions are fundamentally different. For example, just because heterosexual unions also include the free consent of both parties doesn't mean the court can be read to have equated those unions to heterosexual marriage. Similarly, the courts' statements about respecting an individual's choice to build a family cannot be retrofitted to apply to a nontraditional family of the "Heather has two mommies" variety.
Though Walker concedes that marriage in the United States traditionally has not been open to same-sex couples, which he cleverly mis-describes as a "tradition of exclusion," he insists our society has evolved and with it so has our "understanding of gender." He says that because our understanding of gender has evolved, we do not fundamentally change the definition of marriage by including same-sex unions within its scope. "The exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed."
But in the United States, marriage has always been legally defined as between man and woman, and the reasons for that are so fundamental in our culture and legal tradition that they do not need to be broken down into constituent parts. A man and a woman (SET ITAL) are (END ITAL) the constituent parts of a marriage and do not lend themselves to further dissection.
Of course same-sex marriage proponents are advocating a fundamentally new right, and to argue otherwise does not pass the laugh test. So no matter how elaborately Judge Walker spins his web of deceit -- probably self-deceit as much as deceit of others -- he cannot alter the definition of marriage to fit his personal biases. And it's scandalous that he has tried and, in the process, has thwarted the rule of law and the sovereignty of the people.
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