Bench Memos

NRO’s home for judicial news and analysis.

Judge Walker and Supposed Lack of “Evidence” of Marriage’s Procreative Purpose


Among the many distortions and falsehoods that Judge Vaughn Walker has tried to propagate through his anti-Prop 8 ruling is his claim that the Prop 8 proponents—who intervened as defendants in the case and valiantly carried out the role of defending Prop 8 when the state defendants abandoned their duties to do so—“failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.”  (Slip op. at 11.)  Walker’s claim, which many in the media evidently unfamiliar with the case have parroted, operates to divert attention from the manifest bias that he exhibited throughout the case and that pervades his ruling.  But in fact the Prop 8 proponents offered a thorough case that Walker almost entirely ignored—a case resting on a broad array of judicial authority, recognized scholarship in various academic fields, extensive documentary evidence, and elementary common sense.

One stark illustration of Walker’s massive distortion on this broader matter is his assertion (slip op. at 9-10) that “When asked [during closing arguments] to identify the evidence at trial that supported [the] contention [that ‘responsible procreation is really at the heart of society’s interest in regulating marriage’], proponents’ counsel [Charles Cooper] replied, ‘you don’t have to have evidence of this point.’”  The clear—and utterly misleading—implication that Walker tries to leave through his grossly out-of-context quotation is that the Prop 8 proponents did not offer meaningful (indeed, overwhelming) evidence and other authority on this point.  And plaintiffs’ counsel Ted Olson has compounded the falsehood with irresponsible public statements like this (from his interview on “Fox News Sunday With Chris Wallace”):

In fact, they [Prop 8 proponents] said during the course of the trial they didn’t need to prove anything, they didn’t have any evidence, they didn’t need any evidence.  

1.  Let’s begin by putting Cooper’s statement in its proper context:

At the closing argument in June, Cooper began by stating that “the historical record leaves no doubt … that the central purpose of marriage in virtually all societies and at all times has been to channel potentially procreative sexual relationships into enduring stable unions to increase the likelihood that any offspring will be raised by the man and woman who brought them into the world.”  (3028:  13-19.)  Cooper cited numerous Supreme Court (and other) cases that reflect this understanding.  (3027-3028.) 

When Cooper stated that “the evidence shows overwhelmingly that … responsible procreation is really at the heart of society’s interest in regulating marriage” (3038:5-8), Walker asked, “What was the witness who offered the testimony?  What was it and so forth?” (3038:14-15.)  Cooper began his response:

The evidence before you shows that sociologist Kingsley Davis, in his words, has described the universal societal interest in marriage and definition as social recognition and approval of a couple engaging in sexual intercourse and marrying and rearing offspring.

Cooper then cited Blackstone’s statements—which were also in evidence submitted at the trial—that the relation of husband and wife and the “natural impulse” of man to “continue and multiply his species” are “confined and regulated” by “society’s interests”; that the “principal end and design” of marriage is the relationship of “parent and child”; and that it is “by virtue of this relation that infants are protected, maintained, and educated.”  (3038-3039*.)  

As Cooper proceeded to work his way through “eminent authority after eminent authority”—all in evidence submitted at the trial—Walker interrupted him to ask the bizarre question, “I don’t mean to be flip, but Blackstone didn’t testify.  Kingsley Davis didn’t testify.  What testimony in this case supports the proposition?”  (3039:16-18.)

Cooper responded to Walker’s question:

Your Honor, these materials are before you.  They are evidence before you.…  But, your Honor, you don’t have to have evidence for this from these authorities.  This is in the cases themselves.  The cases recognize this one after another. [3039:19-3040:1]

Walker:  “I don’t have to have evidence?” [3040:2]

Cooper:  “You don’t have to have evidence of this point if one court after another has recognized—let me turn to the California cases on this.” [3040:3-5]

Note that only the underlined portion of the passage is what Walker quotes in his opinion.

Cooper then proceeded to present California cases stating (in Cooper’s words, which may include direct quotations not reflected in the transcript’s punctuation) that the “first purpose of matrimony by the laws of nature and society is procreation,” that “the institution of marriage … channels biological drives … that might otherwise become socially destructive and … it ensures the care and education of children in a stable environment,” and that (in a ruling just two years ago) “the sexual procreative and childrearing aspects of marriage go to the very essence of the marriage relation.”  [3040]

2.  Walker’s question—“What testimony in this case supports the proposition?”—wasn’t just flip.  It was downright stupid—amazingly so, from a judge who has been on the bench for more than two decades.  Even if one indulges the mistaken assumption that there was any need for a trial in the case (rather than its being disposed of, one way or the other, on summary judgment, with competing expert and documentary submissions), live witness testimony is merely one form of trial evidence.  Exhibits submitted in evidence at trial are another form.  And a judge is of course free to, and expected to, take judicial notice of certain facts. 

3.  In context, it’s clear that Cooper cited extensive evidence in the record, as well as relevant legal authorities, in support of the proposition that “responsible procreation is really at the heart of society’s interest in regulating marriage.”  Indeed, the evidence that Prop 8 proponents submitted (and cited in their proposed findings of fact) in support of this heretofore obvious and noncontroversial proposition was overwhelming. 

4.  When Cooper stated “you don’t have to have evidence for this from these authorities”—Kingsley Davis and Blackstone and the other “eminent authorities” that Cooper was ready to discuss when Walker interrupted—and that the “cases themselves” “recognize this one after another,” it’s crystal-clear in context that he wasn’t contending that he hadn’t provided evidence or that he didn’t need to provide evidence or other authority.  He was merely making the legally sound observation that the many cases recognizing the procreative purpose of marriage were an alternative and additional source of authority for the proposition.

But you wouldn’t know any of this from Walker’s highly distorting clip of Cooper’s statement—or from Olson’s contemptible misrepresentation of it, or the media’s mindless parroting of it.

Walker’s outrageous distortion on this point isn’t an aberration.  As I will show when I have time, it’s representative of his entire modus operandi throughout his ruling.

* It’s not apparent from the transcript which portions of these quotations are directly from Blackstone and which involve Cooper’s linkages.  In quoting the transcript in this post, I’ve also corrected obvious typographical errors that the transcriber made (e.g., “principle” for “principal” and “imminent” for “eminent”).  All emphases are mine.


Sign up for free NRO e-mails today:

Subscribe to National Review