by I was out of town last week, so I just now had the chance to sit down and read Perry v. Schwarzenegger. A few initial reactions: First, what were the Prop 8 proponents’ counsel thinking in only putting on two experts, neither of whom strike me as especially strong under Daubert/Kumho Tire? To be clear, I think David Blankenhorn is a very thoughtful writer and effective advocate, but that doesn’t make him a good choice as a testifying expert witness. More broadly, if constitutional litigation is a battle of public policy arguments (and I’m not saying it should be), this one was no contest.
Second, Judge Walker’s sweeping findings of fact strike me as overconfident in portraying as conclusively settled issues that, at least in my understanding, are still being debated, see, e.g., #55 (“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 relationships.”), #70 (“The gender of a child’s parent is not a factor in a child’s adjustment.”), #71 (“[H]aving both a male and a female parent does not increase the likelihood that a child will be well-adjusted.”). Elsewhere, he frames the finding in a way that begs the question, see, e.g., #34 (adopting definition of marriage that would cover nonsexual relationships), #77 (“Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.”), or is quick to attribute the most harmful of implications to Prop 8, see, e.g., #58 (Prop 8 “places the force of law behind [the stigma] that gays and lesbians are not as good as heterosexuals”).
Third, to the extent that Judge Walker’s findings are based on the paucity of contrary evidence presented by proponents’ attorneys, perhaps this suggests that a courtroom trial is not the ideal setting in which to chart a course for the future of foundational social institutions. When we’re trying a case to see whether defective brakes or driver error caused the car accident in question, plaintiffs and defendants fail or prevail based on the evidence they can put before the court. Adopting a definition of marriage because it was the only one put forward by a qualified expert seems a bit more dicey.
Fourth, a quick thought experiment: suppose that Judge Walker’s ruling was issued forty years from now, and that California at that time is the only state not to have adopted SSM through the political process. Suppose further that empirical studies support conclusively all of Judge Walker’s factual findings about the quality of parenting, the stability of relationships, etc. in comparing same-sex and opposite-sex couples. In other words, the consequentialist arguments are off the table. Assuming that Lawrence v. Texas is still good law at that time, would Judge Walker be wrong to rule that Prop 8 is unconstitutional? If so, why? What would the legitimate state interest be at that point in prohibiting SSM?
[Cross-posted at Mirror of Justice]
The instinct that a civil trial is not the right venue for this kind of question I think is dead on.