Before we address the top ten false “facts” asserted by Judge Vaughn Walker, there is one real fact in his opinion that defeats the entire case for his opinion. Here it is:

“The evidence at trial shows that marriage in the United States traditionally has not been open to same-sex couples.”

Since that fact is unquestionably true, how can Judge Walker honestly declare that Proposition 8 violates the Fourteenth Amendment? Certainly no one in 1868 intended the Fourteenth Amendment to redefine marriage. Only the most tyrannical form of judicial activism can get Judge Walker to his conclusion.

Second, Prop 8 doesn’t violate the Fourteenth Amendment because every person in America already has equal marriage rights. We’re all playing by the same rules—we all have the same right to marry any non-related adult of the opposite sex. Those rules do not deny anyone “equal protection of the laws” because the qualifications to enter a marriage apply equally to everyone—every adult person has the same right to marry.

What about homosexuals? That leads us to Judge Walker’s first false “fact.”

1. “Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group.” (FF 44) This is the most important of the false facts because Walker’s entire case collapses without it. The “fact” is false because it ignores the difference between desires and behavior.

Having certain sexual desires—whether you were “born” with them or acquired them sometime in life—does not mean that you are being discriminated against if the law doesn’t allow the behavior you desire. Good laws discriminate against behavior. They do not discriminate against people. If Walker’s false “fact” was a real fact, we’d have to redefine marriage to include not just same sex couples, but also relatives, multiple partners, children or any other sexual relationship people desire. After all, those are “sexual orientations” too.

In other words, there should be no legal class of “gay” or “straight,” just a legal class called “person.” And it doesn’t matter whether persons desire sex with the same or opposite sex, or whether they desire sex with children, parents, multiple partners or farm animals. What matters is whether the behavior desired is something the country should prohibit, permit or promote. And that's a job for the people, not judges.

2. “California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in California.” (FF 47) Other than helping them avoid disease and live longer, absolutely no reason. As I document here, health problems are higher and life spans shorter for homosexuals. This has touched me personally (and perhaps someone you know as well)—a childhood friend of mine died from AIDS at the age of 36. How is it wise public policy to endorse behavior that leads to such tragic results? That’s exactly what same-sex marriage does—it endorses homosexual behavior, which results in serious health problems and shorter life spans. Permitting unhealthy behavior is one thing, but endorsing it is quite another.

But won’t same-sex marriage help reduce gay health issues? Not likely. See Judge Walker’s next false fact.

3. “Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.” (FF 48) What does “successful” mean? It has nothing to do with children according to Judge Walker. In his “the stork brings children” universe, marriage is merely about coupling; procreation is just incidental to it. He thinks a “successful” marriage is merely about commitment, but he can’t even support that case.

In another instance of special pleading, Judge Walker ignores the evidence that at least half of committed homosexual relationships are open as even the New York Times reported. (Other studies found even higher rates of promiscuity and infidelity.) This is so well known it’s a travesty that Judge Walker claims exactly the opposite is true. The Times reported, “None of this is news in the gay community, but few will speak publicly about it. Of the dozen people in open relationships contacted for this column, no one would agree to use his or her full name, citing privacy concerns. They also worried that discussing the subject could undermine the legal fight for same-sex marriage.” Maybe Judge Walker was worried too, and that’s why he didn’t bother mentioning this real fact with his false facts.

4. “Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.” (FF 55) Judge Walker cites just four years of data from Massachusetts to make that sweeping conclusion about the most important relationship in human civilization. The truth is that evidence from other countries over a much longer period shows a mutually reinforcing relationship between same-sex marriage and illegitimacy. And the disastrous results of 40 years of liberalized divorce laws show how monumentally important marriage laws are to the health of marriages, children, and the nation.

5. “Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples.” (FF 62) It’s too bad Judge Walker didn’t look to evidence from Massachusetts for this false fact. If he had he would have seen that court-imposed same-sex marriage has severely affected First Amendment rights. Same sex marriage may not affect heterosexual marriage behavior quickly, but it certainly affects the free exercise of religion very quickly.

Parents in Massachusetts now have no right to know when their children are being taught homosexuality in grades as low as Kindergarten, neither can they opt their kids out (one parent was even jailed overnight for protesting this). Businesses are now forced to give benefits to same-sex couples regardless of any moral or religious objection the business owner may have. The government also ordered Catholic Charities to give children to homosexuals wanting to adopt. As a result, Catholic Charities closed their adoption agency rather than submit to an immoral order. Unfortunately, children are again the victims of the morality that comes with same-sex marriage.

“But you can’t legislate morality!” some say. Nonsense. Not only do all laws legislate morality, sometimes immorality is imposed by judges against the will of the people and in violation of religious rights. There is no neutral ground here. Either we will have freedom of religion and conscience, or we will be forced to adhere to the whims of judges who declare that their own distorted view of morality supersedes our rights—rights that our founders declared self-evident.

Think I’m overreacting? If this decision survives and nullifies all democratically decided laws in the 45 states that preserve natural marriage, religious rights violations in Massachusetts will go nationwide. In fact, it’s poised to happen already at the federal level. President Obama recently appointed gay activist Chai Feldblum to the EEOC. Speaking of the inevitable conflict between religious rights and so-called gay rights, Feldblum said, “I’m having a hard time coming up with any case in which religious liberty should win.”

Part 2, with five more false “facts,” tomorrow.