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Gay marriage: Why Judge Walker got Proposition 8 ruling wrong

There's much to admire in Judge Walker's gay marriage opinion. But marriage doesn't exist to provide benefits for couples in love. Its purpose is to protect female sexuality and human liberty, and thus ensure the survival of the human race.

By Sam Schulman / August 6, 2010

Kents Store, Va.

Many fair-minded people will cheer Judge Vaughn Walker’s decision to overturn California’s Proposition 8 that constitutionally banned gay marriage in the state. Although I disagree with his decision, his written opinion is full of good sense with which I fully agree.

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Measures of love, he says, do “not differ depending on whether a couple is same-sex or opposite-sex.” Marriage does confer a certain status and certain “tangible and intangible benefits” on married couples. The definition of marriage in California’s constitutional amendment does deny this status and those benefits to gay couples (though I think that every tangible benefit not available to gay couples can and should be created by legislation in every state).

The judge is partly right: If the purpose of marriage was for the exclusive benefit of couples in love, who wanted to share a life and a household, it would be a clear affront to justice to keep this state benefit from other couples who happen to possess a different kind of sexuality from the majority.

But providing benefits to couples is not the whole purpose of marriage. It’s not even its primary purpose. And that’s what’s wrong with Mr. Walker’s ruling, and the arguments on both sides of Perry vs. Schwarzenegger. They’ve been arguing over marriage’s benefits. Instead, we need to be thinking about marriage’s role in sustaining the existence of the human species. When we do that, we’ll see the fundamental wisdom of the decision of the majority of California voters.

For another view, read "Ultimate battle for gay marriage supporters: their fellow Americans"

Striving for status

Let’s go to what the plaintiffs – the two same-sex couples who sued the state – say they cannot have because California denies same-sex marriage: Messrs. Zarrillo and Katami say that only a California marriage (and not their private relationship or California’s provision for domestic partnership) will give them, in the words of former Supreme Court Justice William Douglas: “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”

Ms. Perry wishes to marry Ms. Stier because “I’m a 45-year-old woman. I have been in love with a woman for 10 years and I don’t have a word to tell anybody about that.” “Ms. Stier explained that marrying Perry would make them feel included “in the social fabric.”

The goals of the plaintiffs are noble, and shared by most nice people. And it must be painful to believe that only a harmless change in the legal definition of marriage would give Zarillo, Katami, Stier and Perry what they want. But legal marriage – while a wonderful thing – does not, cannot, and was never intended to provide intimacy, the sacred, or a feeling of inclusion. Those goals can be achieved by same-sex couples just as well as by heterosexual couples, married or not – because of their relationship, not the law.

Marriage is about defending women

Among the many different versions of marriage in human history, very few of them have supplied the high-minded qualities that the plaintiffs feel is their right. The vast majority of marriages in the past, perhaps a majority even now, were dictated by families, clans, holy men or magicians, and enforced on the bride and groom by social pressure, enforced if necessary with brutality and violence.

True, many marriages promote loving intimacy and enduring fidelity, but that’s an outcome of the relationship itself – not the raison d’etre for the institution. In primordial terms, marriage only exists at all – in all of its permutations, pleasant or barbaric – because of the nature of human heterosexuality. As a species, we need to protect female sexuality in order to assure ourselves of a future.