Jacob Sullum

At first blush, the notion that there is no rational basis for California's ban on same-sex marriage, as U.S. District Chief Judge Vaughn Walker ruled last week, seems extreme. But the more you consider the arguments presented by the ban's supporters the less far-fetched Walker's conclusion looks.

Walker ruled that Proposition 8, the 2008 ballot initiative that excluded gay couples from the legal definition of marriage, violated the 14th Amendment's command that no state may "deny to any person within its jurisdiction the equal protection of the laws." He deemed the case presented by the measure's supporters so weak that it failed even the "rational basis" test, the highly deferential standard used in equal protection cases that do not involve a fundamental right or a "suspect class," such as race (although he also argued that gay marriage bans implicate both).

Proposition 8's defenders, Walker noted, emphasized "its consistency with the 'central purpose of marriage, in California and everywhere else, to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation.'" Yet when Walker asked Charles Cooper, the attorney defending Proposition 8, how recognizing same-sex marriages would impair the asserted state interest in procreation, Cooper at first said it was "not the legally relevant question" and then essentially conceded the issue, saying, "Your honor, my answer is: I don't know. I don't know."

In their trial brief, Proposition 8's supporters promised to identify 23 -- count 'em -- negative consequences of "redefining marriage to encompass same-sex relationships." During the trial, however, they presented just one witness to substantiate this point -- David Blankenhorn of the Institute for American Values, who, in Walker's judgment, "provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate."

Blankenhorn conceded that children raised by adoptive parents fare at least as well as children raised by biological parents, that recognizing gay marriages would benefit gay couples and their children, and that such recognition would be "a victory for the worthy ideas of tolerance and inclusion." Although Blankenhorn nevertheless worried that giving gay couples the same legal status as straight couples might exacerbate the "deinstitutionalization" of marriage, he never explained why.


Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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