Roberto Grao Gracia
On August 4, 2010, the judge Vaughn Walker of the State of California (USA), who declared himself homosexual, passed a sentence declaring unconstitutional proposition 8 that consist in the prohibition on same-sex marriage in the U.S. Constitution. This proposition was approved by a referendum held on November 5, 2008. It was claiming that the ban of gay marriage violates the right to non-discrimination established in the 14th Amendment to the U.S Constitution. Basically, the arguments of Judge Walker are the following:
Although it is true that there is a sentence of 1972 of the Supreme Court that declares that prohibit homosexual marriages did not violate the Constitution, the "social status" about marriage has changed a lot over the nearly 40 years since then. As a result, we cannot "blindly" apply the approach set out in that sentence.
As everyone recognizes, marriage is a fundamental right.
Gay marriage is not a "new right" that could be granted or not, but it is "a new way of exercising that right" already existing to marriage.
The U.S. Constitution guarantees a non-discriminatory treatment to all citizens, so we can not deny homosexuals the access to marriage for the simple fact of being homosexual.
Finally, the argument of most political significance: regarding to the fact that Proposition 8 (ban) was approved by the citizens of California, Judge Walker ruled that
Fundamental rights can not be subject neither a vote nor can depend on the outcome of an election.
Examining the arguments alleged by Judge Walker, some of his claims may contradict such as: what is and who determines the "social consideration"? Why apply a criterion recognized by a court and not legally modified over time? Do this is to do it blindly? Is it not rather an example of consistency with the previous jurisprudence? Who is the judge to substantiate a judgment in the subjective criterion of a possible and changing social consideration that another judge could consider differently and contradictory?
He said that gay marriage "is a new way of exercising that right." Here we should turn that nation's constitutions identify clearly what is marriage in order to avoid misunderstandings and random interpretations of judges and courts dependent on social considerations more or less invented. Thus, the problem of how the fundamental rights are defined is posed. In my opinion, there are two ways to define basic human rights such as marriage: 1) it is accepted what God says through his son Jesus Christ: Have you not read from the beginning the Creator "made them male and female"? and said, "For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh?"(Matthew, 19, 4-5) and 2) or a group of illustrious citizens gathered in assembly would have to determine it. They would say more or less what we all know and the history of the peoples has always confirmed: "Marriage is the marital union between the man and woman to love each other, have descendants and help each other along the life." Then this definition was endorsed by the rest of the citizens. Every marriage should be able to fulfill these three fundamental conditions: love each other, have children and help each other to the vicissitudes and adversities of life.
Because the allegation that it is a new way of exercising that right could take us very far or even to the absurd or aberrant, as for example, that was required as a new way to exercise the right to marriage, do it between a man with several women or several men, or vice versa; or even it would possible the marriage with animals of the same or different sex, such as "new forms of exercise that right" to marriage.
Let's see the latest and most important of the allegations: "fundamental rights can not be subject neither vote nor may depend on the outcome of a vote."
This is a real fallacy because these rights were required in the Universal Declaration of Human Rights, agreed and proclaimed by the United Nations General Assembly, in its resolution 217, A, III of December 10, 1948 by vote of its member countries, in a democracy, because in it, rightly or wrongly, nothing escapes to the will of the majorities. Another thing is that some of those rights afforded by popular elections are morally fair or not, or are not sufficiently determined or specified to prevent false or arbitrary interpretations.
Mr. Judge Walker makes a mistake or tries to "look after one's own interests", defending with exquisiteness, legal and evidently false, his own existential stance in this matter.
Roberto Grao Gracia
Independent Forum of Opinion