As the California SSM case sinks in

When a judge takes a hotly-contested definition of marriage and labels it a “finding of fact,” we have not discovered an ingenious end-run around the turmoil of our culture wars. We have simply witnessed another volley in those wars. Tempting as it may be, the rule of facts cannot escape the moral controversy enveloping the marriage debate. Pretending otherwise serves neither the long-range interests of same-sex marriage advocates nor the vitality of our political community. (Robert K. Vischer)

The more I read, the more I think the mainstream media were wrong when they sang the praises of Judge Vaughn Walker’s opinion as, for instance, “a very careful analysis,” “meticulously crafted,” or a “comprehensive, detailed decision.” The thoughtful criticisms continue.

Robert K. Vischer takes the fairly high-altitude view, strongly suggesting that this debate should be allowed to work its way through the political process. I’m not sure whether he’s in favor of same-sex marriage or whether he, like Ross Douthat, thinks it’s getting nearly time to move on.

Linda Greenhouse thinks Judge Walker pointed out something that was “Hiding in Plain Sight“:

There is much more to Judge Walker’s analysis, but it seems to me that this revelation is the heart of it: that while we have been fussing about same-sex marriage, marriage itself has undergone profound change as the result of forces completely independent of federal judges. Judge Walker is saying basically that he is not “redefining marriage” — the charge instantly leveled by critics of the opinion. We, collectively, in California and elsewhere in today’s United States, have done the job ourselves.

I think her analysis fails. Maybe we’re in the process of reconceptualizing marriage, but I don’t think we’re arrived (or that we necessarily will “arrive” at a destination about which we’re agreed). I see no sign that the pendulum is ready to swing back yet, but I think the proponents of SSM have gotten away with putting the burden of proof on the opponents, while their own case strikes me as remarkably weak for lawyerly reasons having to do with the public interest in recognizing and approving their choice to live with each other and provide mutually beneficial support (Judge Walker’s new definition, which he imputes to us collectively if Greenhouse is right).

Jan LaRue, a pretty strident culture warrior, seems to have hit on a fairly important point this time — much sharper than adjectives like “activist” and “openly gay” applied to the Judge:

The case of Perry v. Schwarzenegger shouldn’t have gone to trial. It should have been decided with two sentences: “Judgment is entered for defendants. The Supreme Court held in Baker v. Nelson that a state law denying same-sex couples a marriage license does not violate the U.S. Constitution.” …

Walker doesn’t mention the one “on point” case, Baker v. Nelson (1972), in which the Court rejected a constitutional challenge to a state law limiting marriage to a man and a woman. The Court dismissed the appeal of a Minnesota Supreme Court case “for want of a substantial federal question,” which constitutes a decision on the merits of the case, binding on all lower courts.

The Supreme Court held in Hicks v. Miranda that a summary dismissal is binding precedent on all lower federal courts. “[U] ntil the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that the Court has branded a question as unsubstantial.”

In 2004, Justice Joyce Kennard of the California Supreme Court acknowledged the Baker precedent in her concurring/dissenting opinion in another same-sex marriage case, Lockyer v. San Francisco.

“[I]ndeed, there is a decision of the United States Supreme Court, binding on all other courts and public officials, that a state law restricting marriage to opposite-sex couples does not violate the federal Constitution’s guarantees of equal protection and due process of law. … The binding force of a summary decision on the merits continues until the high court instructs otherwise. … The United States Supreme Court has not expressly overruled Baker v. Nelson, … nor do any of its later decisions contain doctrinal developments that are necessarily incompatible with that decision. Until the United States Supreme Court says otherwise, which it has not yet done, Baker v. Nelson defines federal constitutional law on the question whether a state may deny same-sex couples the right to marry.”

Finally, Ross Douthat kicked off a fairly serious discussion here, and continuing here, there, everywhere, and a few others, too (1, 2, 3 & 4).

I remain highly skeptical of SSM as an addition to our legal regime (in Orthodox Christianity, it’s not a serious question at all) for reasons that are apparent, though perhaps not readily so, from my blog July 10. I am aware that the nation’s finest legal minds are not reading my blog in eager anticipation of the trenchant questions I’ll give them to answer, but the responses I got did not make me a believer.

About readerjohn

I am a retired lawyer and an Orthodox Christian, living in a collapsing civilization, the modern West. There are things I'll miss when it's gone. There are others I won't. That it is collapsing is partly due to calculated subversion, summarized by the moniker "deathworks." This blog is now dedicated to exposing and warring against those deathwork - without ceasing to spread a little light.
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