Lund in SF Chronicle: Prop. 8 Judge Ruling Puzzling

In a move Professor Nelson Lund finds strange, a federal judge in San Francisco ruled on Wednesday that an amendment to California's Constitution violated the U.S. Constitution by defining marriage as a union of one man and one woman.

"Wednesday's ruling relied primarily on a constitutional doctrine that forbids laws having no conceivable rational purpose or no purpose except to oppress a politically unpopular minority group," says Lund, arguing that California currently has the most progressive domestic partnership law in the nation, which gives same-sex couples all the substantive rights and privileges available to married couples.

"The fundamental purpose of marriage is to encourage biological parents, especially fathers, to take responsibility for their children. Because this institution responds to a phenomenon uniquely created by heterosexual intercourse, the meaning of marriage has always been inseparable from the problem it addresses, " explains Lund.

"Constitutional doctrine requires only one conceivable rational reason for a law, and the traditional definition of marriage easily meets that test," Lund says.

Prop. 8 judge makes strange charge, San Francisco Chronicle, August 8, 2010. By Nelson Lund.

"The judge in this case thinks it was proved at trial that same-sex marriage will not amount to a sweeping social change. He thinks it is 'beyond debate' that same-sex marriages will have no detrimental effects on the institution of marriage. Can anyone really believe that such things can be proved by witnesses in a courtroom?

"Recently, a few states have begun to experiment with same-sex marriage. Maybe this will work out well, and the more cautious states eventually will catch up. But some experiments fail. Our democracy allows different states to change their marriage laws and to abandon experiments that don't succeed. But if this judge's ruling is upheld on appeal, that will be that, and every state will be forced to conform, for good or ill."