When one judge overturned the will of more then seven million Californians last week in Perry vs. Schwarzenegger, he listed 80 supposed “findings of fact” (FF) as evidence that Proposition 8 violates the Fourteenth Amendment of the United States Constitution. Many of those 80 findings are not facts at all. They’re lies or distortions.
Before we address the top ten false “facts” asserted by Judge Vaughn Walker, there is one real fact in his opinion that defeats the entire case for his opinion. Here it is:
“The evidence at trial shows that marriage in the United States traditionally has not been open to same-sex couples.”
Since that fact is unquestionably true, how can Judge Walker honestly declare that Proposition 8 violates the Fourteenth Amendment? Certainly no one in 1868 intended the Fourteenth Amendment to redefine marriage. Only the most tyrannical form of judicial activism can get Judge Walker to his conclusion.
Second, Prop 8 doesn’t violate the Fourteenth Amendment because every person in America already has equal marriage rights. We’re all playing by the same rules—we all have the same right to marry any non-related adult of the opposite sex. Those rules do not deny anyone “equal protection of the laws” because the qualifications to enter a marriage apply equally to everyone—every adult person has the same right to marry.
What about homosexuals? That leads us to Judge Walker’s first false “fact.”
1. “Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group.” (FF 44) This is the most important of the false facts because Walker’s entire case collapses without it. The “fact” is false because it ignores the difference between desires and behavior.
Having certain sexual desires—whether you were “born” with them or acquired them sometime in life—does not mean that you are being discriminated against if the law doesn’t allow the behavior you desire. Good laws discriminate against behavior. They do not discriminate against people. If Walker’s false “fact” was a real fact, we’d have to redefine marriage to include not just same sex couples, but also relatives, multiple partners, children or any other sexual relationship people desire. After all, those are “sexual orientations” too.
Frank Turek is coauthor of I Don't Have Enough Faith to be an Atheist, and the author of Stealing from God: Why atheists need God to make their case. See more of his work at CrossExamined.org.