Frank Turek - Guest Columnist
When one judge overturned the will of more than seven million Californians last week in Perry v. 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.
In other words, there should be no legal class of "gay" or "straight," just a legal class called "person." And it doesn't matter whether persons desire sex with the same or opposite sex, or whether they desire sex with children, parents, multiple partners or farm animals. What matters is whether the behavior desired is something the country should prohibit, permit or promote. And that's a job for the people, not judges.
2. "California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in California." (FF 47) Other than helping them avoid disease and live longer, absolutely no reason. Statistics show that health problems are higher and life spans shorter for homosexuals. This has touched me personally (and perhaps someone you know as well) — a childhood friend of mine died from AIDS at the age of 36. How is it wise public policy to endorse behavior that leads to such tragic results? That's exactly what same-sex marriage does — it endorses homosexual behavior, which results in serious health problems and shorter life spans. Permitting unhealthy behavior is one thing, but endorsing it is quite another.
But won't same-sex marriage help reduce gay health issues? Not likely. See Judge Walker's next false fact.
3. "Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions." (FF 48) What does "successful" mean? It has nothing to do with children, according to Judge Walker. In his "the stork brings children" universe, marriage is merely about coupling; procreation is just incidental to it. He thinks a "successful" marriage is merely about commitment, but he can't even support that case.
In another instance of special pleading, Judge Walker ignores the evidence that at least half of committed homosexual relationships are open as even the New York Times reported. (Other studies found even higher rates of promiscuity and infidelity.) This is so well known it's a travesty that Judge Walker claims exactly the opposite is true. The Times reported, "None of this is news in the gay community, but few will speak publicly about it. Of the dozen people in open relationships contacted for this column, no one would agree to use his or her full name, citing privacy concerns. They also worried that discussing the subject could undermine the legal fight for same-sex marriage." Maybe Judge Walker was worried too, and that's why he didn't bother mentioning this real fact with his false facts.
4. "Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages." (FF 55) Judge Walker cites just four years of data from Massachusetts to make that sweeping conclusion about the most important relationship in human civilization. The truth is that evidence from other countries over a much longer period shows a mutually reinforcing relationship between same-sex marriage and illegitimacy. And the disastrous results of 40 years of liberalized divorce laws show how monumentally important marriage laws are to the health of marriages, children, and the nation.
5. "Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples." (FF 62) It's too bad Judge Walker didn't look to evidence from Massachusetts for this false fact. If he had he would have seen that court-imposed same-sex marriage has severely affected First Amendment rights. Same-sex marriage may not affect heterosexual marriage behavior quickly, but it certainly affects the free exercise of religion very quickly.
Parents in Massachusetts now have no right to know when their children are being taught about homosexuality in grades as low as kindergarten, neither can they opt their kids out (one parent was even jailed overnight for protesting this). Businesses are now forced to give benefits to same-sex couples regardless of any moral or religious objection the business owner may have. The government also ordered Catholic Charities to give children to homosexuals wanting to adopt. As a result, Catholic Charities closed their adoption agency rather than submit to an immoral order. Unfortunately, children are again the victims of the morality that comes with same-sex marriage.
"But you can't legislate morality!" some say. Nonsense. Not only do all laws legislate morality, sometimes immorality is imposed by judges against the will of the people and in violation of religious rights. There is no neutral ground here. Either we will have freedom of religion and conscience, or we will be forced to adhere to the whims of judges who declare that their own distorted view of morality supersedes our rights — rights that our founders declared self-evident.
Think I'm overreacting? If this decision survives and nullifies all democratically decided laws in the 45 states that preserve natural marriage, religious rights violations in Massachusetts will go nationwide. In fact, it's poised to happen already at the federal level. President Obama recently appointed gay activist Chai Feldblum to the EEOC. Speaking of the inevitable conflict between religious rights and so-called gay rights, Feldblum said, "I'm having a hard time coming up with any case in which religious liberty should win."
6. "No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation." (FF 46) I guess thousands of ex-gays just don't exist in Judge Walker's special-pleading universe. Neither does renowned Columbia University psychiatrist, Dr. Robert Spitzer, who concluded that some highly motivated individuals can change their orientation from homosexual to heterosexual through reorientation therapy.
This is significant because Spitzer is no propagandist for the religious right. Quite the contrary — a self-described "Jewish atheist," Spitzer has been a hero to homosexual activists since 1973 when he helped get homosexuality declassified as a mental disorder. Recently, however, they've turned on him because he reported the truth.
Dr. Spitzer said that his 2003 study "has been criticized severely by many people, particularly gay activists, who apparently, feel quite threatened by it. They have the feeling that in order to get their civil rights, it's helpful to them if they can present the view that once you're a homosexual you can never change."
When asked whether the American Psychiatric Association should now change its position statements that say orientation cannot be changed, Dr. Spitzer said, "I think they should, [but] they will not be....There's a gay activist group that's very strong and very vocal and is recognized officially by the American Psychiatric Association. There's nobody to give the other viewpoint. There may be a few who believe it but they won't talk."
Dr. Spitzer then acknowledged explicitly that politics often trump the scientific facts at organizations like the APA (an organization cited to bolster Judge Walker's conclusion). He also said that the APA should stop applying a double standard by discouraging reorientation therapy, while actively encouraging gay-affirmative therapy that's intended to confirm and solidify a homosexual identity. Good point by Dr. Spitzer. After all, if people can be talked into it, then why can't they be talked out of it?
Sexual orientation isn't like race either. You'll find many former homosexuals, but you'll never find a former African American.
Of course Walker's "fact" even if true is irrelevant anyway. Marriage does not need to be redefined just because people can't change their sexual desires. Otherwise a legal "marriage" relationship must be created for every particular sexual desire.
7. "The gender of a child's parent is not a factor in a child's adjustment." (FF 70) Incredibly, Judge Walker says that this conclusion "is accepted beyond serious debate." Citing a study by the politicized APA, Walker never admits that not enough research has been done to evaluate the well being of children living with homosexual parents. And he ignored evidence presented by the defense that contradicted his "fact."
But does one really need a study to know that Walker is wrong? Was your father different as a parent than your mother? To say no is laughable. In fact, even Rodney Dangerfield could expose this false fact. "No respect at all — when I was a baby, I was breast fed by my father!"
Later in the opinion, Walker makes the unbelievable assertion that "gender no longer forms an essential part of marriage; marriage under law is a union of equals." Who sez? The imperial Judge Walker.
Questions for the Judge: Why do you assert that men and women are interchangeable as parents but not as sex partners? After all, if gender really is irrelevant to marriage as you maintain — if men and women are interchangeable — then why argue for same-sex marriage at all? Why not just tell homosexuals, "Gender is irrelevant to marriage, so instead of making a fuss, why not just go ahead and marry someone from the opposite sex"?
Why not? Because when it comes to their own personal gratification, homosexual activists like Judge Walker clearly recognize the big difference between the sexes. But when it comes to the more important priority of raising children, they say there is no difference between the sexes. Children are just going to have to take a backseat to their sexual desires. Dr. Jennifer Roback Morse sums up the attitude of homosexual activists well. She writes: "[Homosexual] adults are entitled to have what they want. Children have to take what we give them."
8. "Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians." (FF 77) Really? Do religious beliefs that drunkenness is sinful or inferior to sobriety harm alcoholics? No, those beliefs help such people by telling them the truth about destructive behavior instead of enabling them with liberal fantasyland talk about how all behaviors and lifestyles are equal.
9. "Proposition 8 results in frequent reminders for gays and lesbians in committed long-term relationships that their relationships are not as highly valued as opposite-sex relationships." (FF 68) This is not meant to be offensive, but what if certain relationships really are more valuable to society than others? Clearly, the procreative committed relationship of a man and a woman is more valuable than any other relationship in society because it is necessary for society's very survival. To comprehend the impact of this, you just need to consider two questions.
(1) What would happen to society if everyone lived faithfully in natural marriage? Our country would thrive with a drastic reduction in numerous social problems including illegitimacy, crime, welfare, and abortion.
(2) What would happen to society if everyone lived faithfully in same-sex marriage? Society wouldn't thrive because it wouldn't even survive. It would end the human race!
This is not to say that such a law would cause this, but merely to point out that certain relationships are more valuable to a society than others. The truth is that homosexual and heterosexual relationships are not the same, can never be the same, and will never yield the same benefits to individuals or society. No law can change that fact; only deceive people into thinking so.
If this point offends you, then you have a problem with reality, not me. I didn't make up the facts of nature. I'm just admitting them — something Judge Walker and many same-sex marriage supporters seem unwilling to do.
10. "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license." (Conclusion) The real fact is that Judge Walker fails to provide any "rational basis" for overturning Proposition 8 — no rational basis from the Constitution or common sense. While lecturing the people of California that their "private moral views" cannot be used to make their laws, Judge Walker has simply imposed his own "private moral view" that same-sex marriage must be sanctioned. That is objectively immoral and unconstitutional itself.
He claims that the exclusion of same-sex couples from marriage "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." If that's true, that's not for him or any judge to decide. The people of California have said that time has not passed.
Disagree? Then you have the burden of persuading your fellow citizens to pass a constitutional amendment sanctioning same-sex marriage. That's what the amendment process is for! When judges short-circuit that process, we are no longer a free people who govern ourselves.
Frank Turek is the founder and president of CrossExamined.org and an award-winning author. He hosts a weekly TV program called "I Don't Have Enough Faith to be an Atheist." This column is published with permission.