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) Continue reading “As the California SSM case sinks in” →

First, Stephen Chapman, conservative and supporter of SSM, shows how extremely libertarian his position is (he would legalize polygamy) but also make good points about the “who decides” issue and the likely backlash.

Second, a Yale law professor (one of several “experts”) points out the odd “factual posture” of the case and actually thinks that despite his efforts, “Judge Vaughn Walker left us with a remarkably limited and vulnerable opinion”:

The invalidation of California’s Proposition 8 is based on the U.S. Constitution’s due process and equal protection clauses — not the California State Constitution — and is potentially of national consequence. But while he rehearsed every nuance of the evidence introduced at trial, Judge Vaughn Walker left us with a remarkably limited and vulnerable opinion.

Because Proposition 8 came out of California’s idiosyncratic ballot initiative process, it lacked the careful legislative record that most state statutes would enjoy. It was evaluated instead by reference to the sometimes unscientific or intolerant public claims of anti-gay campaigners. An impressive factual showing at trial was therefore essential to the legislation’s survival.

The largest part of Walker’s opinion is devoted to the evidentiary inadequacies of the defenders’ case. Observing that their evidence was “dwarfed” by that of opponents of the proposition, and dismissing the testimony of key supporters’ witnesses as “unreliable,” the judge concluded that “the trial evidence provides no basis for establishing that California has an interest in refusing to recognize marriage between two people because of their sex.”

Disappointed supporters will no doubt try again, arguing that this decision is a limited assessment of one particular factual record. As written, the decision lends itself to the conclusion that the failure was not with Proposition 8’s legal content but with its supporters’ sorry lawyering. This ruling is not going to settle anything.

Third, some Republican strategists are recognizing the peril of overplaying the issue — which I thought would be hard to do.