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Harris Sherline: Proposition 8 Revisited

Judge's ruling on same-sex marriage sends ripple effects into matters of religion and education

Was Judge Vaughn Walker guilty of a conflict of interest when he accepted litigation on California’s Proposition 8 in his court and subsequently ruled in the case? Without even a judicial review of his decision, should his ruling be overturned on that basis alone?

Harris Sherline
Harris Sherline

Conflict of interest is defined as being involved in a situation in which a person has more than one interest, one of which could possibly influence his or her decision. Given the fact that the judge openly acknowledged that he is gay, should he have been required to recuse himself from hearing the case — that is, declared that he was not eligible to hear the matter?

The problem in cases where there is a conflict of interest is that it’s impossible for anyone to know whether a judge’s ultimate decision is truly impartial.

In the Proposition 8 case, Walker’s ruling opens a host of legal, ethical and moral issues beyond the question of his ethical lapse in deciding to handle the case.

“Marriage is the building block of society. Changing its nature will therefore change society,” Dennis Prager wrote in “Same-Sex Marriage and the Insignificance of Men and Women” for the Jewish World Review. “But the price paid for eliminating this unfairness is ... the end of any significance to gender. Men and women are now declared interchangeable. ... Gender doesn’t matter. ... Ask anyone who supports same-sex marriage this: Do you believe that a mother has something unique to give a child that no father can give, and that a father has something unique to give a child that no mother can give? ... And if mothers and fathers are interchangeable, men as men and women as women lose their significance.”

Dr. Jim Garlow noted in his commentary, “Losses and Consequences,” that Walker not only robbed the people of “the essence of legitimate government, the consent of the governed,” but that his decision essentially declared that he “knows more than millions of Californians and all the cumulative history of all federal courts.”

Garlow also observed that, according to Walker, “only bigotry caused people to come to the conclusion that marriage is between one man and one woman.” In short, he ignored the fact that every culture for the past 5,000 years also have defined marriage as being between one man and one woman.

Unfortunately, Walker’s decision also affects more than just California, as 31 states have “affirmed traditional, natural marriage” and about 294 million people out of 330 million in 44 states have one man, one woman marriage laws.

Furthermore, Walker also has placed certain other groups on a collision course with the Constitution, such as doctors who will not artificially inseminate an unmarried woman based on religious beliefs. A case in point involved two medical doctors in San Diego sued by a lesbian who they would not inseminate on religious grounds. They lost, but they didn’t pursue the case to the U.S. Supreme Court because the $1 million cost of an appeal was prohibitive, which in effect prevented them from exercising their First Amendment rights (freedom of religion).

Another aspect of the effect that a judge’s decision can have on individual rights involved two parents in Lexington, Mass., both chemists, who asked to have their child opt out of discussions of homosexuality in school after the state legalized gay “marriage.” The school’s rationale for denying their request was: “This is not sexuality, it’s homosexuality. Therefore, you cannot opt your child out. Besides that, it’s state law now. Gay marriage is legal in the state. Therefore, you cannot opt your child out.”

The judge in this case didn’t have the teachers testify as to what they were teaching about the subject, but told the couple that they should “segregate themselves from the school system.” It was OK for them to pay taxes to support the school system, but they had no rights when it came to what their children were taught.

In Ocean Grove, N.J., two lesbians demanded to have an “affirmation ceremony” on the Methodist church’s beachfront property at the church’s independent holiness Methodist campground. When church officials denied their request, the women turned to the state, which sued the church on the grounds that its property extended to the beach, which had received some state funding.

Thus, it appears that when same-sex marriage becomes legal, it has the effect of either limiting and/or overturning our constitutional rights in matters of religion and education.

As Garlow noted, “If, as Judge Walker says on page 115 of his decision, ‘Marriage is simply the union of equals,’ one might ask, How many equals? Historically, marriage has been defined by a number and by gender: one man and one woman. That definition is gender specific and numeric specific.”

— Harris R. Sherline is a retired CPA and former chairman and CEO of Santa Ynez Valley Hospital who has lived in Santa Barbara County for more than 30 years. He stays active writing opinion columns and his blog,

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