As I began reading Judge Walker’s opinion yesterday overturning Proposition 8, I had some indication I might like the opinion. That thought cheered me for a moment as it would be a lot easier socially to support the decision than to oppose it. But, the more I realized I could never support an opinion with sloppy jurisprudence and such a casual dismissal of sexual difference (even couching it in the trendy term of “gender”).
So casually did the judge address some very, serious issues that Dale Carpenter feels he practically invites repeal:
But he then concludes that because laws limiting marriage to opposite-sex couples are not rational, “the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.” If that’s true, why address the issue at all? He may be hoping, in maximalist fashion, to lay some foundation for future courts to apply strict scrutiny to sexual-orientation discrimination. But at the same time, leaving the intellectual structure unfinished, he invites a higher court to undermine it.
Walker then rejects as irrational each of the reasons offered for Prop 8, including tradition, procreation, and the need to proceed cautiously and incrementally on matters involving important social change. The biggest difficulty with his argument on these matters, as I see it, is that he thinks of gay marriage as a technical change in the law about which there is no need to proceed cautiously. California has enough printers and paper to issue the additional marriage licenses, so what’s the big deal?
I had the same sense as I read the Judge’s “Conclusions of Law”, that he was acting as if sexual difference were merely incidental to marriage rather than one of its defining aspects.
Plain and simple, gay marriage represents a major social change. Now, I happen to think that if gay couples understand and accept the obligations of marriage, this social change will be a good one, but it remains a social change. And we shouldn’t shy away from seeing it as such. Nor should courts reduce that social change to a minor, technical adjustment.
Anyway, read Dale’s piece. It’s smart and well-written and you’ll better understand why he sees the decision as a Pyrrhic victory for same-sex marriage.
I believe I owe Glenn Reynolds a hat tip on this. You see, I had intended to check Volokh to see what Dale had written about the decision, valuing his jurisprudential insights, but found it linked on Instapundit before I got around to checking Volokh (where Dale posts), I believe I’m honor bound to tip my hat to Glenn. (Isn’t that the rule for hat tips? That you acknowledge the linker even if he links a blog you had intended to check, but had not yet checked.) And anyway, if it weren’t for Instapundit, I might never have encountered Volokh.
But, then, I knew Dale long before I discovered Glenn. . . and even before I had I had hear of blogging . . . .
UPDATE: I have now had a bit of time to read various bloggers’ opinions on Judge Walker’s opinion and have been finding a lot of good stuff at Volokh (keep scrolling if you have time) particularly Orin Kerr’s piece where he addresses the judge’s pooh-poohing the “proponents’ purported interests in proceeding with caution when implementing social change“:
Whatever your views of same-sex marriage — or Judge Walker’s decision as a whole — I think this particular part of the analysis is pretty weak. First, the idea that same-sex marriage is not a significant social change strikes me as plainly incorrect. This is one of the more significant questions of social policy of our time: Whether you think it’s the greatest advance for civil rights in America or the end of the world, it seems pretty clear that it’s a big deal.
Read the whole thing.
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