Both sides of the same-sex marriage debate reacted strongly to Judge Vaughn Walker’s decision in Perry v. Schwarzenegger to overturn Prop 8 in California. What has been most surprising is the developing consensus from prominent legal experts and analysts, including many who support the redefinition of marriage, who find Judge Walker’s opinion unpersuasive. Some argue that Walker failed to tie his legal rationale back to the Constitution’s text. Others were unimpressed with Judge Walker’s “findings of fact” that made sweeping generalizations and predictions about the social dimensions of his ruling. An extensive sampling of the scholars’ reactions:
Matthew Franck, fellow at the Witherspoon Institute, wrote in Public Discourse:
To say that the status of men and women in marriage is one of equal partners is not to say that men and women are the same, such that it does not matter what sex their partners are. The equalization of status is not the obliteration of difference, as much as Judge Walker would like to pretend it is.
Nelson Lund, George Mason Law School, wrote in The San Francisco Chronicle:
This was a strange ruling. The U.S. Supreme Court decided in 1971 that an identical challenge to the traditional definition of marriage was meritless. Nor has the Supreme Court ever suggested that its 1971 decision was wrong… It was a strange charge to make against the people of California. California has the most progressive domestic partnership law in the nation, which gives same-sex couples all the same substantive rights and privileges available to married couples. Why would the judge think that the only possible reason for favoring the traditional definition of marriage was bigotry? He reasoned that every other possible explanation for the voters’ decision was so ridiculous that only anti-gay feelings were left.
Gerald Bradley, University of Notre Dame Law School, wrote on Fox News:
One might think, too, that some (and perhaps a lot) of what the plaintiffs’ ‘expert’ witnesses against traditional marriage would be branded by a fair-minded judge as the fruit of passionate political advocacy, and not dispassionate scholarly analysis? Not in Judge Walker’s court. Read the opinion and you will see that, when it comes to the defense witnesses in favor of Proposition 8, Judge Walker takes no prisoners, gives no quarter, shows no tender mercies. He portrays those who supported traditional marriage in the Proposition 8 fight as not only wrong. They are wrong in every decisive respect, and utterly so.
Jonathan Adler, Case Western Reserve University School of Law, wrote at Volokh Conspiracy:]
But I am not convinced that gay marriage is required by the 14th Amendment, and Judge Walker’s opinion has not changed my view. He makes many sweeping pronouncements and factual findings with which I agree, but I don’t think his opinion rests on particularly solid legal ground, let alone a proper interpretation of the constitution’s text.
Austin R. Nimocks, attorney at the Alliance Defense Fund, wrote in Human Events:
And what about children, you ask? Good question. Judge Walker talked about them too, concluding that ‘the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes.’ So, to every mother in our country—apparently you no longer matter for your kids, and you, as a woman, bring nothing unique to the ‘table’ of child-rearing. According to Judge Walker, any average American man can adequately fill your shoes. Yet, we all instinctively know that all the love in the world doesn’t turn a man into a mother, and vice versa. To completely dismiss the idea that children need mothers and fathers is a slap in the face of, indeed, every mother and father around the world.
Orin Kerr, George Washington Law School, wrote at Volokh Conspiracy:
Whatever your views of same-sex marriage — or Judge Walker’s decision as a whole — I think this particular part of the analysis is pretty weak… the idea that same-sex marriage is not a significant social change strikes me as plainly incorrect. This is one of the more significant questions of social policy of our time…Several of the key factual findings in Judge Walker’s opinion are in the form of predictions, not facts.
Dave Hoffman, Temple University Law School, wrote in Concurring Opinions:
Why would Judge Walker have any special expertise at figuring out these tough questions about the social consequences of legal change? And stepping back, the ordinary case for deference to factual findings is built around two intuitions: (1) that the trial judge can smell liars; and (2) that the appellate court doesn’t have the time to review everything, so it should focus on legal issues apparent on the cold record. The first intuition has always struck me as pretty weak, and the second obviously loses force in big cases.
Dale Carpenter, University of Minnesota Law School, wrote at Volokh Conspiracy:
But my concerns about this decision outweigh what I see as its merits. In reading so far, I think a notable feature of Judge Walker’s decision is its judicial maximalism — a willingness to reach out and decide fundamental constitutional questions not strictly necessary to reach the result. It is also, in maximalist style, filled with broad pronouncements about the essential characteristics of marriage and confident conclusions about social science… Few courts upholding a right to SSM have used a fundamental-rights rationale (not even the original SSM decision, Goodridge, did so). It’s an aggressive claim, especially given the composition of the federal courts and the Supreme Court. I see little enthusiasm in this Court for expanding fundamental rights.
Steven Smith, University of San Diego Law School, wrote:
Elite culture in this country, including the academy and the mainstream media, is generally hostile to traditional judgments about family and sexual morality, and to practices and institutions that embody those judgments. Testimony from ‘experts’ and studies that respectable academics will publish in respectable journals will usually reflect and convey that hostility.
Dana Mack, author “The Book of Marriage: The Wisest Answers to the Toughest Questions,” wrote in The Wall Street Journal:
Marriage, like all cultural institutions, evolves; and it may look very different in different cultures. But the institution’s common denominator across time and cultures has been its dedication to the offices of reproduction. The great 20th century cultural anthropologist Bronislaw Malinowsky stated that while marriage is as old as human life, it has never been primarily a romantic, or even an economic, bond. It has been principally an arrangement for bearing children.
David French, attorney at the Alliance Defense Fund, wrote at National Review Online:
In yesterday’s Proposition 8 ruling, Judge Walker made his own bold theological statement: ‘Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.’ Such a statement presumes, of course, the falsity of such beliefs — a presumption that no federal judge is entitled to make. Moreover, it renders several thousand years of Judeo-Christian moral reasoning legally inferior to a marriage concept created out of whole cloth by coastal judicial elites less than a decade ago.
Ed Whelan, President of the Ethics and Public Policy Center, wrote at National Review Online’s Bench Memos:
Depending on how broadly one defines ‘moral,’ [Judge Walker’s] proposition [that moral disapproval formed the only basis for opposition to legal recognition of same-sex marriage] may be accurate. But it would be equally accurate to state, say, that ‘moral and religious views form the only basis for a belief that all persons should be protected from murder.’ Moral views clearly underlie all sorts of legislation (e.g., civil-rights laws, health-care reform—the list could go on forever). So it can’t really be the case that the American people generally can’t enact moral views into legislation (even as judges impose their own moral views).
Daniel Blatt, columnist for Gay Patriot, wrote:
I find that the judge makes some good arguments for gay marriage, but doesn’t succeed in relating them to the constitution. His legal analysis is sloppy at best and dismisses the sex-difference argument for traditional marriage by flippantly referring to what he calls ‘discredited notions of gender’ as if the assumptions about a supposed social construction of gender had been proven true when, in fact, all serious psychological, sociological studies have shown the opposite. Not to mention studies of the human brain.
Ben Boychuk, columnist, wrote in the Korea Times:
Conservatives often complain about judges who ‘overreach’ and ‘legislate from the bench.’ Walker’s ruling offers a spectacular example of what judicial overreach looks like, adorned in the language of modern social science.
Steve Chapman, columnist for the Chicago Tribute, wrote in the Washington Examiner:
U.S. District Judge Vaughn Walker struck down Proposition 8 because it ‘fails to advance any rational basis for singling out gay men and lesbians for denial of a marriage license.’ But it’s silly to believe only nut jobs and bigots could rationally oppose same-sex marriage, or that millions of Californians who accept other laws protecting gays were acting irrationally.
Paul Mulshine, columnist for the Star Ledger, wrote:
After further study, I’m willing to go even further and state that what Walker did was perhaps the single most misguided move any advocate of same-sex marriage ever made. That he is an advocate is obvious. The decision reads not like the work of an impartial judge but like a tract. That has made it popular with gay activists and left-wingers, but it’s not the sort of thing that impresses judges.
