A nation with a constitutionally illiterate citizenry is in need of education. A nation with a constitutionally illiterate judiciary is in genuine crisis.

Yes, this is about a federal judge’s overturning of California’s Proposition 8, which reserved legal recognition for heterosexual marriage. But it is not about my political difference with the judge.

Vaughn Walker is entitled to whatever views he likes on the issue of gay marriage. He is not entitled to use his power to force a state to agree with him.

As a Californian, he had the right to vote against Prop 8 in November 2008, when voters got their proper opportunity to determine which marriages to recognize under state law. By 52 to 48 percent, the people supported reserving legal recognition for marriages between a man and a woman.

(Contrary to the ubiquitous use of the term, there is no such thing as a “gay marriage ban.” Same-sex couples may marry at will anywhere in America. The only question is whether those unions will be viewed as the legal equal of heterosexual marriages.)

There is no function more important for a judge than the ability to set aside personal biases in reaching conclusions based on law. In this, Walker has failed miserably and does us the favor of revealing it in his central conclusion.

“Because California has no interest in discriminating against gay men and lesbians …the court concludes that Proposition 8 is unconstitutional.”

This is nothing short of slander against the majorities who seek to preserve a legal preference for marriage as the institution has generally been defined throughout human history. There is not a speck of punitive homophobia in the principled wish to have law maintain a recognition that men and women are different – equal in stature in many societal ways, but not identical human creatures.

The day the law says that marrying a woman is the same as marrying a man is the day that the law says there is no difference between manhood and womanhood, a pernicious falsehood that could be used as precedent for a wave of undesirable consequences ranging from the unspeakable (the military drafting of women) to the unworkable (forced unisex restrooms) to the annoyingly silly (men suing successfully to be Hooters girls).

But seen through the liberal lens, preserving unique status for man-woman marriage can only be driven by homophobia. Venom drips from Walker’s paragraph attacking the 7 million Californians who voted for Prop 8, whom he believes were driven by “nothing more than a fear or unarticulated dislike of same-sex couples.”

As perversely untrue as that is, even if every last one of the Prop 8 voters was a raging gay-basher, it would not change the fact that the Constitution requires this issue to be settled at the state level by the legislative process.

When the Constitution is silent on an issue, the 10th amendment leaves it to the states or to the people. The Prop 8 vote did this in California. If pro-gay marriage forces had won, their wishes would deserve to prevail. It didn’t, and now a judge who can’t handle that vote seeks to subvert the public will with the left’s tried and true tactic: the wholesale invention of rights that do not exist.

Walker is welcome to hold heterosexual and homosexual unions in identical personal regard, as many Americans do, and to hold up same-sex couples as worthy partners, parents and citizens, as most Americans do. But this does not entitle him to hijack the right of the people of California to decide which marriages to legally recognize.

A black robe does not bring the power to enact preferred social policy through judicial tyranny. It was Walker’s job to keep his personal politics shelved while deciding whether voters had the right to make this call.

I have no quarrel with gays who wish to marry. Without a molecule of homophobia, I have outlined my basis for maintaining exclusive legal recognition for heterosexual marriage. If my side wins in a given state, it wins. If it loses, it loses.

I should not have to inform judges that they are duty bound to be precisely that accommodating as well.

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