U.S. District Court Judge Vaughn Walker has ruled that the ban on same-sex marriage, approved by California voters in a referendum, violates federal equal protections and due process laws. This is not the first time a federal judge has tried to override the will of the people in order to push his own moral and legal agenda, and it will not be the last. For many years the federal courts have trumped the authority of the states, violating the tenth amendment to the U. S. Constitution with impunity. This usurpation of power by the courts, as Thomas Jefferson noted, results in a judicial dictatorship that violates the fundamental principles of the republic. It is for this reason that Jefferson disagreed with Chief Justice John Marshall on the issue of judicial review. Even if there are situations in which judicial review has been used for a good moral end, the power judicial review grants to judges allows them to also use that power for bad moral ends. The rights of the people of each state to legislate is thereby cut off by raw judicial power that is backed up by the machinery of the federal government—and sometimes, by means of the military.
Besides the constitutional issues involved in this case, a ban on same-sex marriage is in line with the natural law. Of course most people today, especially among the scholarly elite, do not believe in natural law. Most American philosophers are utilitarians, and most judges accept a legal positivism that separates law from nature. But natural law argues that moral principles are derived from the kind of beings human persons are—rational animals. To separate law from human nature ultimately makes law subject to the arbitrary whims of the judiciary. In the case of same-sex marriage, a ban is in line with natural law due to the goal or function marriage serves in human life. Contrary to some naïve critics of natural law, the problem with same-sex marriage, and with homosexuality in general, is not merely a matter, to put it crudely, of a bodily organ going into a place on another person where it does not belong. The issue is teleological—what is the proper function of sex and marriage in human life? Even into the modern era, sex and marriage were understood primarily (though not exclusively) in the context of procreation, of bringing children into the world, with marriage providing a stable household for the moral development of such children. This does not imply that this is the only function of sex and marriage—love, companionship, and in the case of sex, physical closeness and great pleasure are obviously goods that result from sex and marriage. But all these goods are subsumed under the fundamental human need to pro-create, to bring new life into the world, and to nurture that life to fulfillment by moral training. Practices that oppose such ends result in social chaos, as is empirically shown by the social disorder in communities with high rates of illegitimacy. Encouraging homosexual practices also thwarts the natural human goods of reproduction and family. Adoption of children by homosexual couples, or, God forbid, in the future, cloning, will not change this fact—children need exposure to both a man and woman to receive the unique insights of both.
This point is not original to me, and I do not remember who brought it up, but our society began by separating marriage from procreation with the invention of the birth control pill. Now I do not have a problem with a couple using the pill as long as (if the couple is married) they are open at some point in their marriage to having children. But as a matter of empirical fact, both marriage and sex were separated from procreation. With the sexual revolution, marriage was no longer considered a moral requirement to have sex. With both sex and procreation separated from marriage, it was a small step for contemporary liberal culture to say that marriage is a private contract between two individuals, and it does not matter what sex they are. But encouraging this societal down slope by legalizing same-sex marriage will only accelerate the breakdown of the traditional family structure that is essential for human flourishing. The voters of California were wise in approving a ban on same-sex marriage, and Judge Walker’s decision, sadly, was wrongheaded and foolish.
This is not to say that there should be a federal constitutional amendment banning same-sex marriage—the decision should be in the hands of the people or their representatives in each individual state. It is almost certain that Judge Walker’s decision will eventually reach the Supreme Court after its journey through the Ninth Circuit, and hopefully the Supreme Court will recognize the rights of the people of California to make their own decisions in this matter.