Losing Proposition: Latest Religious Right Legal Maneuver On Same-Sex Marriage Falls Flat

The Religious Right may be on the cusp of losing one of the biggest 'culture war' battles.

I know that Religious Right activists don’t like marriage equality for same-sex couples, but some of the arguments they are making lately are just – pardon my bluntness – dumb.

Yesterday a federal court upheld a previous decision striking down California’s ban on same-sex marriage. The latest legal twist over the Golden State’s Proposition 8 – which was narrowly approved by voters in 2008 after the Mormon Church and conservative religious allies poured millions of dollars into an anti-gay propaganda campaign – came about because the judge who handed down the original ruling has disclosed that he is gay. Furthermore, U.S. District Judge Vaughn Walker has been living in a committed relationship with another man for 10 years.

According to the Religious Right’s lawyers, this means Walker, who has since retired from the bench, was obviously biased and unable to rule fairly on the issue of same-sex marriage. They marched back into court and demanded that his ruling be voided.

U.S. District Judge James Ware put a stop to the nonsense. Ruling in Perry v. Schwarzenegger, Ware said opponents of same-sex marriage mistakenly assume that “all people in same-sex relationships think alike.”

Added Ware, “The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief. On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits.”

Bingo. Under the Religious Right’s theory, a black judge wouldn’t be able to rule on an affirmative action case and a woman could not adjudicate sex-discrimination cases. I suppose Christian judges would have to recuse themselves from any cases involving their co-religionists.

Protectmarriage.com, the Religious Right/Roman Catholic hierarchy/Mormon Church front group that brought this frivolous action, just won’t stop. Yesterday their pals at the Alliance Defense Fund issued a brief, defiant statement vowing to appeal.

Save it, guys. I’m not a lawyer, but even I can see that this case is a loser.

It’s also a rather desperate attempt to forestall the inevitable. I’ve seen the same public opinion polls you have. A slight majority now favors civil marriage rights for same-sex couples. The reversal in public opinion is nothing short of remarkable – and that number will only increase because younger people are much more supportive of the idea.

Houses of worship may continue to marry whomever they choose in accordance with their doctrines, but the government should base its marriage policy on the principles of equality, fairness and justice.

The Religious Right can see the trend and is panicking. In those rare honest moments, its leaders must acknowledge that they are probably on the cusp of losing one of the biggest “culture war” battles.

Leaders of the Religious Right can either adjust to this reality or lash out blindly with lousy legal arguments that clog up our courts and waste time. Guess which avenue they’ve taken?