Did Judge Walker Say President Obama is a Bigot?

(By Andrew MacKie-Mason)

So claims Nelson Lund, a Professor of Constitutional Law at George Mason who concentrates on the Second Amendment. He is referring, of course, to Walker's recent opinion in Perry v. Schwarzeneggar, which I explained here.

Lund's opinion piece concentrates on the portion of Judge Walker's ruling which addresses the Equal Protection clause of the Fourteenth Amendment. Walker ruled that there is no way that Proposition 8 could rationally advance a legitimate governmental interest. Lund riffs off of this to claim that, under this ruling, anyone who opposes an equal right to marry (like President Obama, apparently) is now a "bigot."

This rhetoric, while perhaps expected from those directly involved in politics, is very disappointing coming from a professor of law. Lund makes what is either a fundamental error or deliberate obfuscation: he ignores that there is a difference between legitimate private interests and legitimate governmental interests.

Individuals, certainly, may have a legitimate interest in opposing homosexual marriage. In fact, Walker's ruling even acknowledges this: personal moral or ethical standards may dictate that a marriage between two people of the same gender is wrong, and those morals provide a legitimate reason for the individual to oppose any such marriage. Individuals may even think it teaches bad morals to their children for there to be homosexual marriages. Those moral beliefs, even if they are not based on rational science, do not make one a bigot. And Judge Walker's opinion does not say that it does: all it says is that while those beliefs are legitimate reasons for individuals to act, they are not justification for state action.

(That is not to say that no opponents of equal marriage are bigots. Some are obstinate, intolerant and hateful enough to be termed bigots. But basing decisions on moral beliefs alone does not make one a bigot.)

Lund's article then goes on to rehash some of the same, irrational arguments that were rejected by Judge Walker. His loyalty to these arguments make sense when you find out that Lund "assisted in the representation of proponents of Proposition 8 in the case Perry vs. Schwarzenegger". I'll address those arguments briefly.

Marriage Is For Procreation

Lund writes:

Only unions between men and women are capable of producing offspring, and every civilization has recognized that responsible procreation is critical to its survival. After the desire for self-preservation, sexual passion is probably the most powerful drive in human nature. Heterosexual intercourse naturally produces children, sometimes unintentionally and only after nine months.

This argument has been refuted so many times that it's surprising to still see it used by a law professor, of all people. There is no good reason to single out homosexual couples as the only infertile couples to lose the privilege of marriage. Heterosexual couples who have an equally small chance of producing children are allowed to marry, and many couples use various birth control methods to prevent pregnancy at all. It's interesting to see Lund advocating unplanned pregnancies, with the various social and economic costs attendant thereto.

In short, childbirth has never been a requirement for marriage, and if we were to start thinking of it as a requirement, there would be no rational reason to single out only homosexual couples as opposed to other infertile pairings.

Ensuring Parental Responsibility and Paternal Certainty

Lund next asserts that marriage is important because it helps require fathers to be responsible for their children.

Without marriage, men often would be uncertain about paternity or indifferent to it. If left unchecked, many men would have little incentive to invest in the rearing of their offspring, and the ensuing irresponsibility would have made the development of civilization impossible.

The fundamental purpose of marriage is to encourage biological parents, especially fathers, to take responsibility for their children. Because this institution responds to a phenomenon uniquely created by heterosexual intercourse, the meaning of marriage has always been inseparable from the problem it addresses.

This is a different form of the standard argument about biological parenting. It fails, for multiple reasons. First, Lund operates from the false premise that "without marriage, men often would be uncertain about paternity or indifferent to it." Certainty about paternity (at least pre-DNA testing) is not a product of marriage, but instead a product of monogamy. Marriage can (and often does) exist without monogamy, and monogamy can (and often does) exist without marriage.

Male indifference to their paternal responsibilities, on the other hand, is actually an unnatural occurrence, not the natural state that Lund suggests it is. The incentive for men to take care of their children is not the fact that they are married, it is purely biological. Because men pass much of their genetic code to their children, they have a strong genetic incentive to support them and let them thrive.

Marriage does help with child-rearing, there is no doubt about that. But it is neither designed to make assurances of paternity nor to incentivize men to care for their children: rather, it is designed to allow a division of labor to maximize the economic potential of two individuals and thus allow them to best care for dependents. To the extent that marriage is a tool for child-rearing, there is no legitimate reason to limit it to heterosexuals. And to the extent that biological parenting is preferable (and evidence suggests that biological relationships are irrelevant to good parenting), there is no legitimate reason to single out homosexual couples as opposed to couples who adopt rather than having their own children.

Lund's arguments in favor of what he terms the "traditional definition of marriage" fall flat on their face, and thus do not help him in his claim that there is a rational basis for preventing certain adults from marrying each other.

At the more general level, he needs to recognize (or acknowledge) that there is a difference between legitimate governmental and personal interests, and that striking down a law as irrational is not the same thing as calling its supporters bigots.

(Note: None of Lund's arguments address the fact that Proposition 8 was also struck down under strict scrutiny analysis through the Due Process clause.)

UPDATE: I should also add that the opposition of certain politicians to gay marriage can be explained as a perfectly rational response to electoral politics. But where that is a rational reason for politicians to act in a certain way, it is not a legitimate, rational reason for the government to impose certain policies.

[minor edits 8/13/10]