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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.
EPSTEIN > The Living Constitution Kills Prop 8Published in