some useful perspectives on Judge Walker's decision

By Phil Lawler ( bio - articles - email ) | Aug 05, 2010

Plowing through dozens of responses to Judge Walker’s ruling on Proposition 8, I found several perspectives particularly helpful in putting the question in focus.

National Review pointed out that Judge Walker’s argument was based primarily on social science rather than legal theory.  

Of the 135 pages of the opinion proper, only the last 27 contain anything resembling a legal argument, while the rest is about equally divided between a summary of the trial proceedings and the judge’s “findings of fact.” 

The role of a judge is not to settle debates among social scientists, but to interpret existing laws. Yet now that a court had rendered judgment, the media will quickly follow suit, and pronounce that controversial questions have now been definitively resolved.  The Los Angeles Times took its cue immediately, saying that the Walker decision had changed the debate forever, and by virtue of those “findings of fact,” had made it “obvious just how little reason there was to single out gay and lesbian couples as the only ones to be barred from marrying.”

A New York Times editorial took a longer view, recognizing that yesterday’s decisions have opened new horizons. The question is no longer whether California will recognize same-sex unions, the Times boldly announced:

Just as they did for racial equality in previous decades, the moment has arrived for the federal courts to bestow full equality to millions of gay men and lesbians. 

Where do we go from here? Robert George of the American Principles Project made a characteristically cogent argument, culminating with a call to action: 

As a decision lacking any warrant in the text, logic, structure, or original understanding of the Constitution, it abuses and dishonors the very charter in whose name Judge Walker declares to be acting. This usurpation of democratic authority must not be permitted to stand.

True. But the Walker decision will stand, unless or until it is overturned by a higher court. Is the Supreme Court—with today’s addition of Justice Kagan—likely to uphold the rights of the California citizens who supported traditional marriage? This will be a critical test. And as this case wends its way toward the inevitable showdown in the Supreme Court, the momentum toward public acceptance of same-sex marriage will be growing.

In Politico, Josh Gerstein noted that President Obama will now come under greater pressure from his homosexual supporters:

During the 2008 campaign, Obama took what many on both sides of the gay marriage debate viewed as a straddle. He publicly announced his opposition to same-sex marriage, but he also said that he opposed the California ballot measure seeking to ban it, Prop. 8— the same ban Walker ruled unconstitutional Wednesday.

In theory President Obama’s position is neutral. But as the campaign for acceptance of same-sex marriage heats up, does anyone doubt which side the White House will be on?