Perry v. Schwarzennegger: A Proposition
A judge-proof marriage amendment (I think).
Whereas marriage in the state of [state] is recognized as providing the best and most stable environment for the procreation and upbringing of children, only marriage between a man and a woman, who do not share the same parent or parents, and none of whose parents share the same parent or parents, and neither of whom is a parent or sibling of a parent, or otherwise a direct descendant of the other, is valid or recognized in [state].
Judge Vaughn Walker’s Perry v. Schwarzenegger decision is being hailed as a sweeping victory for same-sex marriage advocates and crushing blow to supporters of the traditional definition of marriage as it has been since the existence of the institution. The conventional wisdom is that this is the first step to making same-sex marriage a civil right in all of the 50 states and Territories.
Unfortunately, it would seem that the conventional wisdom is right. For marriage proponents, appealing the decision to the notoriously liberal 9th Circuit is almost certainly a waste of time, a mere formality – they’re almost certainly going to uphold the decision which would take it up to the Supreme Court, where Justice Anthony Kennedy is very likely to come down on the side of fashionable elite opinion.
They should appeal anyway.
But that’s about as far as they should continue to play by the rules. My recommendation, unless otherwise prevented by the California Constitution is for marriage proponents to mount up another campaign to get another Amendment proposition on the ballot as soon as possible before Perry v. Schwarzenegger makes its way to the Supreme Court.
This time, they should word the Amendment specifically to address Judge Walker’s “findings of fact.” Most especially his “finding of fact” that basically declares that children have no bearing on the institution of marriage.
As I’ve maintained over and over on RedState, the only way a court can mandate a states to recognize same-sex marriages is by discounting the central role children play as the raison d’etre of institution i.e. to tie a man to his offspring and their mother to provide the most stable and sustaining environment in which to raise them. The fact is that the decoupling of procreation with marriage within many inner city communities is perhaps the primary cause of the devastation one finds there.
Ultimately though, once the role of children is discounted, there is simply no valid reason why any state would refuse an incestuous couple i.e. brother-sister, mother-son, father-daughter, father-son, sister-sister, mother-daughter, etc. who are both consenting adults a marriage license.
I therefore recommend marriage proponents in California quickly get another Proposition on the ballot and this time make sure to add the provision against incest, and an explicit whereas statement;
Whereas marriage in the state of California is recognized as providing the best and most stable environment for the procreation and upbringing of children, only marriage between a man and a woman, who do not share the same parent or parents, and none of whose parents share the same parent or parents, and neither of whom is a parent or sibling of a parent, or otherwise a direct descendant of the other, is valid or recognized in California.
I submit that it would be one hell of a task for any judge to claim that children are irrelevant to marriage so gays should be allowed to marry while siblings should not be allowed to marry because their children could have genetic abnormalities.
Another twist of the Gordian Knot would be that the judge would be forced by necessity to address the issue of same-sex siblings who want to marry. They cannot have children so there is no reason to deny them a marriage license – which incidentally would bump up against the 14th Amendment.