Jonathan Rauch, perhaps the most articulate (and civil) advocate of state recognition of same-sex marriage, calls Judge Walker’s recent opinion a “radical one, but not, ironically, as it pertains to homosexuality or to marriage. No, Walker’s radicalism lies elsewhere: In his use of the Constitution to batter the principles of its two greatest exponents – Madison and Abraham Lincoln“:
Now, I agree with Walker that gay marriage is unlikely to cause any significant social harm and will do much good. But the judge insists that the testimony of a handful of expert witnesses in his courtroom rules out the possibility of harm so definitively as to make any attempt at caution or gradualism irrational. The evidence, he holds, is “beyond debate.” In an unpredictable world, that kind of sweeping certainty would leave any Burkean gulping.
Now, to be sure, I quibble with Jonathan’s points about how carefully Walker marshaled his evidence. I think the judge did do a good job laying out the strongest arguments for state recognition of gay marriage, but in adopting a condescending, almost sneering tone toward the Proponents of Prop 8, he undercut his strong case for the social change by reducing defenders of the traditional defition of marriage to sniveling bigots.
Jonathan gets at the judge’s arrogance when he contends his conclusion is “beyond debate.” So much so that he brushes aside the compromise that California voters have effected, rejecting state recognition of gay marriage, yet not opposing the state’s decade-old domestic partnership program:
But his decision treats civil unions as if they were trivial or worthless. By refusing to give them any weight and declaring them not just inadequate as a matter of policy but prohibited as a matter of law, Walker uses the Constitution to put compromise out of bounds.
It’s not so much that Walker used the Constitution, but instead contended that in the various emanations from the penumbrae of the Constitution there lurked a “fundamental right” to define marriage differently than it had been treated at the time the Framers drafted the Constitution (and several subsequent Congresses amended it (with three-fourths of the states ratifying)).