Gay Marriage Case — All Hail the Federal Judiciary

I’ve now had a chance to read Judge Vaughn Walker’s 138 page decision (for those interested, only the last 40 pages or so contain the important discussion of constitutional law).

It is a sweeping decision, not just on gay marriage, but for its elevation of the federal judges into arbiters of social norms and private morality. Judge Walker sees it as the job of the courts to test whether laws passed by a majority of the people, or a legislature, advance the public good as defined by expert testimony by social scientists. I’m more than happy if the government required that its own laws produce more benefits than costs. But do we want this job done by a single judge, or a small group of judges, relying on social science (in this case, the work of sociologists, psychologists, and political scientists produced to the court by the litigating parties) of a recent phenomenon?

Here’s how it worked in the gay marriage case. Walker asked whether the goal of Prop 8 — higher levels of marriage & less divorce, encouragement of procreation, social stability — were achieved by a ban on gay marriage. He said no. He cited a few studies, as if they proved facts about the real world, by the plaintiffs’ experts. Because of this, the law failed the rational basis test — there was no possible logical link between the goals of Prop 8 and the means.

Imagine if the courts were to apply this approach to other laws. Did the stimulus and bailout bills in fact encourage economic growth? Do the illicit drug laws in fact increase health and reduce crime? Can we catch terrorists by monitoring their emails and phone calls without a warrant? One judge, armed with a few social science studies, could decide to overrule the considered judgment of the elected branches of government.

Why is this troubling? First, social science — as anyone who reads these studies — is far from a perfect science. There are so many variables and alternative explanations involved in understanding human interaction. I am dubious whether sociologists and psychologists can tell us the real causes and effects of gay marriage — it has only been legal in the United States for a few years, and only in a few states. That is why my preferred solution of relying on federalism makes sense — if states can choose different policies, we can learn from the information generated and understand the costs and benefits.

Second, what does this portend for other legislation built on moral intuitions? If gay marriage goes by the wayside because it is hard to measure a ban’s effects, what about similar laws. Will Judge Walker invalidate the ban on adultery next? How about bigamy? Why not allow group marriages? What about the age limitations on marriage or sex?

Third why the limited use of this aggressive form of judicial review only on morals legislation? I think one reflection of the judge’s activism here is that he subjects Prop 8 to a demanding standard, but would never apply the same review to economic legislation, where the utter irrationality of the government’s regulations is far easier to see.

More On This Topic

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EPSTEIN > The Living Constitution Kills Prop 8

  1. John Davey

    Just wait until the same standards are applied to Union Proselytizing or Educational ballot initiatives. Get it in front of the right activist judge, throw in a few charming snakeoil salesmen…. Presto! Voter Approval overruled!

  2. tabula rasa

    John: When conservatives speak of an activist approach to a living constitution, don’t we now place this decision up there with Roe v. Wade? In this case, we have a judge, armed with dubious “evidence,” overturning the direct, explicitly-expressed will of the people.

  3. Midget Faded Rattlesnake

    “One judge, armed with a few social science studies, could decide to overrule the considered judgment of the elected branches of government.”

    That is particularly unfortunate in the case of gay marriage, as it’s so easy to make the “scientific” case that gay marriage isn’t an evolutionarily adaptive institution (it’s non-procreative… if it’s adaptive, why hasn’t it already evolved in more societies? etc). Far better to justify gay marriage as a freedom of contract, or as extending caritas to those who love differently. And far better to keep it close to home (at the state level) than at the mercy of a unitary power that for all we know, might change its mind after the next batch of studies comes out.

    Progressives are anti-eugenics now, but they weren’t 100 years ago. No, 100 years ago, the “latest scientific studies” told them eugenics was the way to go…

  4. Duane Oyen

    After this stands (remember Anthony Kennedy. who Knows Better What’s Good For Us), we serfs will finally have to knuckle under to the superior (coastal, Ivy League-degreed) rulership of Our Betters.

  5. Jonathan Matthew Gilbert

    I’m deeply ambivalent about a lot of aspects of this ruling–many that you just articulated–but I’m delighted with the opportunity for the Supreme Court to review the issue directly as it’s very, very hard for me to see any of the state bans as anything but the tyranny of the majority. I feel as if the defendants in Prop 8 put forward a bad case and it may in fact be the only case there is against allowing two consenting adults to marry if they see fit. I trust the Supreme Court and most appeals courts (if not district judges) will be able to find significant differences between this and polygamy, incest, or underage marriages. I think it’s an insult to the judicial system to suggest otherwise. While I can vaguely understand that fear from a legal approach…it seems a bit of stretch. For one, there’s quite a few more homosexuals participating in society than there are polygamists and I don’t think that’s likely to change. And while many states already have differeing laws on marriage and age of consent, those are designed to protect the individuals involved–not society.

  6. Mel Foil

    The Constitution allows men and women to be treated differently (men get drafted, women don’t, for example) so the equal treatment protection that applies here is treating all men the same, and all women the same. That’s what exists now. All men (gay and straight) have the same opportunity to marry a woman. All women (gay and straight) have the same opportunity to marry a man. All persons (gay and straight) operate within the same restriction. The fact that some are comfortable with the restriction, and some are not, is irrelevant. If you want it changed, first change public opinion, then go to lawmakers that reflect that change in opinion, and then get the law changed. Or these days, go to a federal judge that thinks he’s King of California, and get him to muscle through the changes on his own. But, better to work through the legislature. The King move may not survive judicial review.

  7. Rob Long
    C
    Jonathan Matthew Gilbert: And while many states already have differeing laws on marriage and age of consent, those are designed to protect the individuals involved–not society. · Aug 5 at 10:42am

    This seems like an important distinction.

    For the record: I’m with John on this stuff. I see no reason why gay marriage shouldn’t be allowed. And from what I can detect from the culture at large and poll data, the American culture seems to be moving (quickly, when you compare it to other social and cultural changes) in that direction.

    But for a judge to pre-empt this movement, and to use such a shoddy argument, is nothing less than insulting. Gay marriage, yes. Incoherent judicial activism, no.

  8. G.A. Dean

    Commentary on this issue tends to paint a picture of CA that is inaccurate, a place where consenting adults are prevented from marrying. In reality the state is “preventing” nothing.

    This state legislature has worked hard to assure that civil unions, which have been available for some time, are the functional equivalent of of a marriage in so far as the state is concerned. People who want to join-up with another can do so and get the state to recognize it. Many churches will bless it too. People can call themselves husband and wife or whatever they want (and they do, but most use “partner”). In my area partnered couples have children, attend the PTA. It’s old hat.

    This whole dispute is not over what people can do but what the state can do; whether the State will use one term to describe “unions” or two. Interestingly, both the supporters of Prop 8 and its opponents agree that the two “unions” are equivalent in practice. One takes that as evidence that there is no basis, the other that there is no evidence of unequal treatment.

  9. Joseph Stanko
    Jonathan Matthew Gilbert: I feel as if the defendants in Prop 8 put forward a bad case and it may in fact be the only case there is against allowing two consenting adults to marry if they see fit. · Aug 5 at 10:42am

    I’d be very interested to hear John or any of our other legal experts’ take on the defendants’ strategy in this case, in particular: why didn’t they call more expert witnesses? Did they not have the money to recruit, pay, and fly them in? Did they refuse to play along in order to make the case that the will of the voters should trump “expert” opinion here?

    My pet theory is they tried to goad Judge Walker into overreaching in order to set themselves up for the case they want to make to the Supreme Court. Not that I have any evidence to back that up, just speculation…

  10. Trace

    The central finding of fact from Judge Walker is that being gay is not a choice but a condition of birth. Having found this as fact, the rest of the decision flows pretty naturally. To suggest otherwise would support anti-miscegenation laws if the majority voted for those as well. The “harm” may be relatively slight, but it is real and quantifiable in income tax law and a half dozen other places.

    And there is no societal good that the defendants could show for supporting the necessity of this particular discriminatory law. Marriage strengthens society no matter who is marrying. And yes, my kooky Libertarian views extend to plural marriage and adultery as well, laws against which, best I can tell, are not well enforced anyway. Child marriage is a false example because that is about protecting the rights of an individual child from abuse by an adult.

    For those concerned with the term “marriage,” the best way out of that dilemma is to get the state out of the marriage business entirely. Create civil unions for everyone and “marriage” take place in church.

  11. r r
    Trace Urdan: Marriage strengthens society no matter who is marrying.

    I suppose you have some sort of data to back up such a claim? Tampering with the institution of marriage is bound to have effects which you seem to suggest can be positive, I’m just wondering if there is any evidence, aside from the sociological ‘studies’ since the mid 60′s and emotional rhetoric that support such a claim. Economics and ‘the democracy of the dead’ are against such a claim, I believe.

    I was just watching Mr. Robinson’s interview with Milton Friedman from 1999, discussing libertarianism. Professor Friedman describes the more radical brand of libertarian thought that, “It is immoral to initiate force on anyone else”. Thus any state imposed force is in and of itself immoral. This is precisely what is at stake here. If the state changes the definition of marriage to include homosexual relationships, this would be a vast and massive imposition of force to radically change the foundational relationship on which all societies throughout history are based. You are bequeathing a huge amount of power to the state if you allow them to change the very definitions of the foundation of human society.

  12. Palaeologus

    Though I oppose gay marriage, it’s worth noting that this is hardly the first time a federal court took its cues from “social scientists.” Certainly Brown v. Board relied on the findings of psychologists. To wit:

    “Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.

    Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.”

    http://www.nationalcenter.org/brown.html

    Obviously, the two cases aren’t similar. But federal judges, just like normal folk, can make good decisions in spite of themselves.

  13. outstripp

    I am sympathetic to the creation of some kind of “civil union” status for gays.

    But I am not sympathetic to gay “marriage”, simply because that is not what the word “marriage” means. You can call an airplane “furniture” because people sit on it (or even get a judge to decide it’s furniture), but I will not be fooled by that verbal sleight-of-hand. I know what furniture means (even though I can’t define it).

  14. Chuck Cattano

    I’m with John on this one. If the Gay Marriage folks can actually get a law passed, then good for them, since they will have run the gauntlet of the correct “process”. Hopefully this case will not become our next “Roe v. Wade” decision; would rather see SCOTUS not accept the case based on the arguments, effectively making it a States’ Rights issue (per John’s “marketplace” concept). If SCOTUS actually takes the case and rules against the Judge’s decision, this does not preclude the possibility that the Gay Marriage lobby could actually succeed in getting a law passed in the future allowing Gay Marriage in CA (or any other State), which would of course invalidate the prior laws created by statewide initiatvie process.

  15. John Yoo
    C

    I forgot to share a link to my Wall Street Journal piece, back in Feb. 27, 2004, criticizing President Bush’s proposed Federal Marriage Amendment.

    I’m with Long. I opposed the first proposition prohibiting same sex marriage. As a voter, I would vote for a California law allowing gay marriage. But I didn’t want the Cal Supreme Court or Judge Walker to decide. This is for the people of California to decide.

    There are several reasons why. Judges are falliable just as people are. The more people that are involved in the decision, the less likely it will be extreme and, under certain conditions, the more likely it is the reflect what the majority really want. Larger numbers are likely to be better predictors of future effects, costs and benefits, social impact, than a single judge.

    Federalism allows for two things. It allows for experimentation, so we can learn what the effects of gay marriage are. But it also allows people to vote with their feet. States are like a market: they offer packages of policies. People can move to states with gay marriage or not, if that is their wish.

  16. Allen McPheeters

    I haven’t read this in any of the news around the decision, but doesn’t Judge Vaughn’s ruling essentially declare gay marriage must be legal everywhere in the country, once all the legal fallout settles? If a state constitution’s declaration of marriage as between one man and one woman is unconstitutional under the Federal Constitution, isn’t every other law banning gay marriage also unconstitutional?

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