Effort to Scuttle Opinion Striking Prop. 8, Reveals Weak Arguments Against Marriage Equality, Prof. Winkler Writes

May 16, 2011

The effort by proponents of California’s anti-gay marriage law, Proposition 8, to invalidate last year’s federal court opinion finding it unconstitutional because the judge who issued the opinion is gay reveals the wobbly arguments against marriage equality, writes UCLA law professor Adam Winkler.

In this piece for The Huffington Post, Winkler says “ironies abound” over the marriage equality opponents’ arguments that the opinion should be invalidated because Judge Vaughn R. Walker (pictured), now retired, “stood to gain personally from ruling in favor of same-sex marriage.” That is, Winkler notes, if California were to recognize same-sex marriage, Walker might be “able to take advantage of that opportunity and secure any and all of the benefits that accrue from marriage.”

Winkler continues:

Writing in the National Review Online, conservative legal commentator Ed Whelan admits that marriage is a "valuable legal right." That is correct -- and exactly why states shouldn't be able to deny gays and lesbians the ability to marry. It's a violation of the Constitution's command that all people be afforded "equal protection of the laws" to deny people fundamental rights on the basis of irrelevant characteristics, like their race, sex, religion, or sexual orientation. Yet that is precisely what the ban on same-sex marriage does.

Implicit in Proposition 8 supporters' effort to recuse Judge Walker is the notion that, unlike a gay judge who might benefit from marriage, a heterosexual judge would be impartial. But to accept that notion, we must reject another central claim in the case against same-sex marriage: that gay marriage undermines the traditional institution marriage.