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Guest Editorial

Super-sizing the law

On the day U.S. District Judge Vaughn Walker issued his landmark ruling regarding same-sex marriage in California, I found myself at a McDonald's restaurant listening to a seven-year-old boy engaged in spirited debate with the guy behind the counter about which toy he'd be getting with his happy meal. The over-arching issue, if you'll pardon the McDonald's play on words, is how far society should go in legislating behavior.

In overturning the ban on gay marriage known as Proposition 8, Walker said that not even a majority of voters has the power to deny citizens their constitutional rights. Prop 8 was approved in November 2008 with 52 percent of the votes. Six months earlier the State Supreme Court had ruled in favor of same-sex marriages, creating a window of opportunity during which 18,000 gay couples were married in California.

Walker is hardly a raging liberal, having first been appointed by Ronald Reagan and subsequently by George H. W. Bush, yet the cry among conservatives is that his ruling subverts the "will" of the people, as if that is a basis for determining constitutional fairness. Walker was articulate in explaining that no state should impose its "own moral code."

Meanwhile, the kid in McDonald's was telling the clerk that he bought his food expecting a particular action figure toy and was unhappy to learn they were out of stock. If one thing came clear as the boy made his case, it's that he had considerably less interest in the salt-covered fries and fat-laden burger than in the heavily-promoted toy.

Lawmakers in one California county decided this summer to do something about that, making it illegal for restaurants to give free toys with foods that fail to meet certain nutritional guidelines. The Santa Clara edict has drawn national attention from both the fast-food industry as well as other municipalities that are considering similar bans.

"What we're trying to do is de-link the connection between unhealthy food and toys," explained Ken Yeager, head of the Santa Clara Board of Supervisors. Yeager has a point about unhealthy food, considering that 25 percent of kids in his county are overweight. And he's probably correct in his assumption that many kids, like the one I encountered at McDonald's, are drawn to the toys more than the meals.

But Yeager and his colleagues are making a mistake in seeking to promote fitness and good nutrition by outlawing the marketing of happy meals. They are, in the words of Judge Walker, trying to impose their "own moral code" on families.

Many conservatives find it abhorrent for government to meddle in the rights of consumers and businesses when it comes to something relatively small like a happy meal - and they are correct. Yet many of the same people find it unacceptable for a judge to protect the rights of gay couples when it involves something far more meaningful like marriage - and they are wrong.

We all want government to combat things we don't like, and to encourage things we support. But the primary function of law is to protect our rights, and to ensure that those rights are applied equally to everyone. Moreover, laws are most necessary to protect us from the reckless behavior of others.

Opponents of same-sex marriage have nothing whatsoever to fear from the union of gay couples. And those who are understandably concerned about unhealthy food and childhood obesity should realize that outlawing happy meals is not a reasonable solution.

To combine the two issues in one argument, as I found myself doing at McDonald's, is a stretch - but it helps make the point about basic fairness.

As for that boy at the counter, he never did get the action figure he wanted. However, as far as I could determine, he had no plans to take the matter to court.

- Peter Funt is a columnist, public speaker and the long-time host of "Candid Camera" (www.CandidCamera.com).

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