A Soon-To-Be Activist Judge Asks the Right Questions

Last weekend, President Obama reiterated his promise to end the deeply unfair and damaging policy of "Don't Ask, Don't Tell" (DADT), which prohibits homosexuals from serving openly in the United States military. While his omission of a time table and specific steps to achieve this goal might be understandable - he is, after all, about to make some hard decisions regarding American armed forces in Afghanistan - continued delay in repealing DADT is harder than ever to justify. Still, popular sentiment continues to evolve away from discrimination against gays, and it appears to be only a matter of time before Don't Ask, Don't Tell ceases to be the law of the land.

On a similar note, U.S. District Chief Judge Vaughn Walker has refused to dismiss a law suit challenging the legality of California's Proposition 8, which passed last November, and outlaws homosexual marriage in that state. Charles Cooper, the lawyer representing the group who sponsored Prop 8, had asked the judge to throw out the suit, but instead ran into a buzz saw of logic and penetrating questions too infrequently asked, and for which he was ill-equipped to answer:

The judge not only refused but signaled that when the case goes to trial in January, he expects Cooper and his legal team to present evidence showing that male-female marriages would be undermined if same-sex marriages were legal.

The question is relevant to the assertion that Proposition 8 is constitutionally valid because it furthers the states goal of fostering "naturally procreative relationships," Walker explained.

"What is the harm to the procreation purpose you outlined of allowing same-sex couples to get married?" Walker asked.

"My answer is, I don't know. I don't know," Cooper answered.

Moment later, after assuring the judge his response did not mean Proposition 8 was doomed to be struck down, Cooper tried to clarify his position. The relevant question was not whether there is proof that same-sex unions jeopardize marriages between men and women, but whether "the state is entitled, when dealing with radical proposals to make changes to bedrock institutions such as this ... to take a wait and see attitude," he said.

"There are things we can't know, that's my point," Cooper said. "The people of California are entitled to step back and let the experiment unfold in Massachusetts and other places, to see whether our concerns about the health of marital unions have either been confirmed or perhaps they have been completely assuaged."

Walker pressed on, asking again for specific "adverse consequences" that could follow expanding marriage to include same-sex couples. Cooper cited a study from the Netherlands, where gay marriage is legal, showing that straight couples were increasingly opting to become domestic partners instead of getting married.

"Has that been harmful to children in the Netherlands? What is the adverse effect?" Walker asked.

Cooper said he did not have the facts at hand.

"But it is not self-evident that there is no chance of any harm, and the people of California are entitled not to take the risk," he said.

"Since when do Constitutional rights rest on the proof of no harm?" Walker parried, adding the First Amendment right to free speech protects activities that many find offensive, "but we tolerate those in a free society."

Judge Walker has yet to endure what will almost certainly be an avalanche of criticism that he is an "activist judge," but given past experience, that is more than likely only a temporary situation. Hopefully, he will continue pursuing this line of questioning, rooted as it is in the Constitution, the fairness of basic human rights, and last - but not least - The Daily Show. (And yes, this particular video has become my touchstone, my go-to, my "Free Bird" encore on this issue. But it deserves to be, as it so neatly and totally destroys the arguments against same-sex marriage, and does so in under five minutes.)