I’m not interested in investing, business or dailies, so even though IBD is displayed prominently on my floor at the library, until today I had barely spared it a passing glance. As I was pulling last Friday’s issue and replacing it with today’s, though, a small heading on the front page caught my eye.

Same-Sex Marriage
A judge creates a right that’s not found in the Constitution
Issues & Insights A12–13

Oh my, I thought. I’ve got to see what insights the editorial board of an investing newspaper has on that subject. I wasn’t disappointed! Here’s the title and blurb (and a link to the article):

Out of Thin Air
Same-Sex Marriage: A federal judge decides marriage is a constitutional right and overturns California’s Proposition 8 forbidding such unions. The issue is headed to a Supreme Court that Elena Kagan will be sitting on.

Well. “Decides marriage is a constitutional right” is an interesting way to characterize Judge Walker’s ruling. It also has no relationship with the facts. So after reading the rest of the editorial (holding my head firmly all the while to keep it from exploding) I sat down to write a point-by-point response.

The imperial judiciary has struck again with Chief U.S. District Judge Vaughn Walker striking down California’s Proposition 8, passed in November 2008 with 52% of the vote, on the grounds that the voter-approved law was a violation of gay couples’ civil rights. …

… In his decision, Judge Walker argues: “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.” Except Walker provides no rational basis for identifying marriage as a constitutional right.

This could be the answer to every single one of the erroneous points in this editorial so I’ll get it out of the way now: DID YOU EVEN READ THE RULING?? Walker spent an entire page (page 110, to be precise) quoting Supreme Court ruling after Supreme Court ruling in which marriage is established or accepted as a fundamental right. Years and years of decisions. In fact, according to Walker, “the parties [i.e. the plaintiffs and the defendants] do not dispute that the right to marry is fundamental.” Apparently the IBD editorial board disagrees with (or is unaware of?) not only years of Supreme Court precedent but also the Yes on 8 defendants whose side they pretend to be on.

Prop 8 supporters believe there’s no more a constitutional right to marriage than there is to a driver’s license. On the secular level, both are privileges granted by the state, which is entitled to define the ground rules for its secular reasons and purposes.

Indeed the state is “entitled” to define ground rules for the privileges it bestows on its citizens … as long as those rules are not unconstitutionally discriminatory. Denying driver licenses to homosexuals would be just as unconstitutional as denying marriage licenses is.

See also the “Conclusions of Law” section of the ruling (page 109), where Judge Walker discusses at length just why the State of California has no legitimate interest in preventing same-sex couples from marrying.

This country and healthy societies around the world and throughout history have given marriage between a man and a woman special legal protection because of the recognition that it is the one institution that ensures the society’s future through the orderly procreation and upbringing of children.

It is obvious that the IBD editorial board has not done its homework on the history of marriage, either, which really makes me wonder at their foolhardy bravery in writing on the subject at all. I suggest they take a look at Marriage, a History by Stephanie Coontz and A History of the Wife by Marilyn Yalom for some insight into the REAL reasons behind the institution of marriage throughout history. (Hint: they have far more to do with property, power and politics than procreation.) Heck, even über-conservative Supreme Court Justice Scalia disagrees with them! (Findings if Fact 21c)

Furthermore: No jurisdiction in the United States uses the ability or desire to procreate as the basis for issuing marriage licenses (FF 21); children are better off when their parents marry, including the children of same-sex couples (FF 56); children of same-sex couples show no difference in their development and adjustment than children of opposite-sex couples (FF 69–72).

Lacking a constitutional foundation, marriage is entitled to be defined by the people or their elected representatives.

As former House Speaker Newt Gingrich said about the ruling: “In every state of the union—from California to Maine to Georgia—where people have had a chance to vote, they’ve affirmed that marriage is the union of one man and one woman.”

This should read: “Wherever the privileged majority has had the chance to vote on the rights of an oppressed minority, the majority has affirmed its own privilege at the expense of the minority.” This is not a valid argument in any sense.

Also, Newt, you have no room to talk, you moral cesspool you.

Once again we have unelected judges pulling rights out of the ether and thwarting the will of the people.

The whole point of the Bill of Rights is that the will of the majority sometimes needs to be thwarted.

The editorial goes on to piss and moan about how liberal and dangerous and activist Elena Kagan must also be, based on very little evidence, but that’s boring.

My conclusion: the editorial board of Investor’s Business Daily either did not read the ruling they are critiquing or have willfully decided to misrepresent it for ideological reasons. Which is a shame, because the ruling is a thorough, understandable piece of legal writing that basically speaks for itself.

Shame on you, IBD! You’ve never had any credibility with me since I never paid you any attention, but I certainly know to ignore you scrupulously in the future—unless I want to spend an entire day writing rebuttals to your nonsense.