The Big Media narrative is established. On one side, we have the massive cathedral-like structure of a legal opinion, built upon a firm foundation of precedent and logic, and supported by flying buttresses of unassailable factual findings. On the other side is a pack of howling monkeys, who have no evidence to support their arguments, but who sure do like to jump up and down, howl, and fling poo.
Dan McLaughlin offers a detailed post that demonstrates some glaring logical inconsistencies in Judge Walker’s opinion. It is not an emotional screed, but rather an argument that tackles the opinion on its own terms, and reveals it to be high-flown hackery. I say this as someone who voted against Prop. 8, but who wants to see gay marriage accepted by the populace, not crammed down their throats by their judicial betters.
I hesitate to excerpt because I want you to “read the whole thing,” but I nevertheless will excerpt Dan’s main points to show you the strength of the argument. He makes three basic points.
1. Tradition is important only when Judge Walker says so. Judge Walker simultaneously casts aside as irrelevant the traditional meaning of marriage, when deciding the importance of tradition to the justification for the law. Yet in the next breath, he declares domestic partnerships to be inadequate because of the traditional importance of marriage. As Dan elegantly puts it: “Judge Walker puts the culture on one side of the scale while lifting it off the other, which may be many things but surely is not equal justice under law. It’s this analysis, not the view of the California electorate, that fails the test of basic rationality.”
2. Judge Walker trivializes the state’s interest in couples that can procreate. Dan quotes Judge Walker as burying in his factual findings the observation that “[a]pproximately eighteen percent of same-sex couples in California are raising children.” Dan says: “I’d bet every penny I have that very significantly more than 18% of opposite-sex married couples, even in California, have children.” Dan would win his bet. According to the 2000 census (.pdf), “46 percent of married-couple households had at least one son or daughter living in the household” nationwide. In California, it was 51 percent — almost three times the percentage of same-sex couples with children. One might complain that comparing married opposite-sex households to unmarried same-sex households is comparing apples to oranges, but the same census figures reveal that “[f]our out of ten opposite-sex unmarried-partner households have children present.”
The state has a rational interest in encouraging childbirth, and this provides a rational reason to distinguish between same-sex and opposite-sex couples.
3. Judge Walker’s requirement that laws be justified by evidence is contrary to democracy. Sure, I’d like to haul the people behind ObamaCare into court and force them to offer justifications for their policy decisions that would pass evidentiary muster in a court of law. Give me a fiscally conservative judge and I’ll win that case every time. But that’s not how democracy works. Walker proclaims that the defendants’ reasons were “nothing more than post-hoc justifications” that were not considered by the electorate. Dan replies: “Just imagine the horror – campaigns that oversimplified the issues and relied on pre-existing assumptions and scare tactics! There oughta be a law!” He quotes a passage from the Declaration of Independence regarding truths that are held to be “self-evident” and asks whether such a bald declaration would satisfy Judge Walker, “given that Thomas Jefferson cited no statistics [and] no sociological studies compiled by sympathetic scientists.”
Many laws are overturned for legal reasons, but it is exceedingly rare for laws to be overturned because a single judge has found them to be irrational. The result is even more offensive when the law is passed as a proposition voted on by the people at large, as it pits the views of a single judge against the collective wisdom of the citizenry of an entire state. This is rule by philosopher king, and it is rarely more blatant.
Dan does a much better job of explicating his points than I could ever do. Please read the whole thing.