Bench Memos

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Why Judge Walker’s Purported Factual Findings Won’t Matter


Dave Hoffman (on Concurring Opinions) and Orin Kerr (in two posts on the Volokh Conspiracy) nicely explain why Judge Walker’s highly tendentious factual findings are unlikely to matter much in the end. 

An excerpt from Hoffman:

[T]here are facts, and then there are constitutional facts.  Almost every “fact” identified by Judge Walker is of the latter type — “Sexual orientation is a fundamental characteristic of a human being.”; “marriage is widely regarded as the definitive expression of love and commitment in the United States.”; “permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”, etc.  It is exceedingly unlikely that any appellate judge or Supreme Court Justice would feel compelled to defer to these factual judgments.  That’s just not how constitutional empiricism seems to work.

An excerpt from Kerr:

Several of the key factual findings in Judge Walker’s opinion are in the form of predictions, not facts. For example, Judge Walker finds that “permitting same-sex couples to marry will not . . . otherwise affect the stability of opposite-sex marriages.” …

Appellate judges will naturally discount, if not entirely ignore, efforts to create false certainty out of unknowns by stating that they are facts.

For similar reasons (as I have explained), Walker could have and should have resolved the case, one way or the other, on summary judgment.  Instead, he tried to turn the case into a high-profile, culture-transforming, history-making, Scopes-style show trial, only to have his unlawful broadcast order stymied by the extraordinary (and fully warranted) intervention of the Supreme Court. 


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