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    Deconstructing Marriage

    Deconstructing Marriage

    Yesterday I made the point that Chief US District Judge Vaughn Walker, who declared California Prop. 8 to violate the U.S. Constitution, was trying a bit too hard to insulate his decison on appeal by engaging in fact finding and credibility determinations on what essentially are legal issues.

    A similar view from Orin Kerr, writing at The Volokh Conspiracy:

    The question is, how much will those factual findings matter on appeal?

    If the Supreme Court agrees to hear the case, I don’t think the factual record will matter very much. I think that for three main reasons. First, the Justices will know that this case presents a defining moment for their respective tenures on the Court. This will be one of the biggest decisions of their careers, and its importance transcends a single trial before a single judge with a particular set of witnesses. These sorts of mega-big-picture cases tend rest less on the details of the factual record than other cases. Second, the Justices will certainly recognize … that … Judge Walker was trying to use his facts to make an argument designed to persuade the Justices to agree with him. For better or worse, I suspect a majority of the Justices will respond to that dynamic by significantly discounting those facts.

    The fact finding sought to establish that there is no legitimate societal difference between traditional marriage and gay marriage. In doing so, the Judge examined individual aspects of a marriage, and based on the testimony he credited, determined that there were no substantial differences, hence, no legitimate state interest in maintaining a distinction.

    These fact findings have heartened people like Dahlia Lithwick who writes:

    It’s hard to read Judge Walker’s opinion without sensing that what really won out today was science, methodology, and hard work.

    There is a certain lack of reality to Judge Walker’s fact finding, in that it deconstructed a traditional marriage to nothing more than its parts, ignoring thousands of years of history and its role in society.

    The problem for supporters of the decision is that it is doubtful the majority of Justices on the U.S. Supreme Court will engage in such a deconstructionist approach.

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    Any idea how long it will take for this case to get to the Supreme Court? I've heard that it could be years.


    the truth? The reason why californians passed it is moral opposition. And lawrence's declaration that this is insufficient in and of itself is one of the stupidest parts of the decision.

    Let me expand on the subject of common morality in law a little.

    We do ban relationships based on nothing more than common morality.

    For instance, many incorrectly believe that the ban on incest is about preventing children with recessive genes. If you read the statutes, you will learn that many states also ban relationships between people related by marriage (as in, step brothers and step sisters) or by adoption. That is in many states Greg Brady cannot marry Marsha Brady, and to go to Different Strokes as a metaphor, Willis can’t marry Kim, because Kim’s father adopted Willis as his son. In both cases, Greg and Marsha, Kim and Willis, the people are genetic strangers to each other, presenting no greater danger of bringing out recessive genes, but not only to we say they can’t marry, but we also say they can’t even have sex. And if they do, we will throw them in prison.

    And no one seriously questions the constitutionality of that.

    Of course in academic circles we dress it up. Oh, no, we would never be so provincial to say that we morally disapprove of sleeping with your adopted daughter. No, we just feel that it is psychologically unhealthy. But that strikes me as a difference without a distinction. And it doesn’t matter, anyway. If those relationships can be forbidden because we feel they are psychologically unhealthy, then why can’t the people of California say that gay relationships are psychologically unhealthy, too?

    That is why I keep tossing out the example of gay incest, to make you think about what the ban on incest is REALLY about.

    "The California AG ought to be impeached and removed from office for failing to defend this matter. Whether or not he personally agrees with the proposition is irrelevant"

    Maybe I'm being cynical, but I suspect the main concern of the California AG is how any particular action would impact his gubernatorial run.

    So how far will it go? It seems to me that those who practice polygamy for religious reasons have a much stronger legal argument. It will be interesting to see if a polygamous family will go to San Francisco, and attempt to become legally married. By using the same reasoning as used by the judge, how can they possibly be denied legal marriage? It is interesting to see how they have had legal successes despite facing a large degree of religious bigotry.

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