Proponents of Judge Walker’s Proposition 8 decision have claimed that the attorneys defending the measure failed to provide evidence in support of it. As Ed Whelan has demonstrated, this is just not true — but even if it were, we would have to remember that the real question in the case is not whether there is evidence that proves the voters of California are not bigots, but whether the Constitution is inconsistent with the traditional definition of marriage. Only if that tension exists in the first place is it relevant whether the defenders of Proposition 8 can provide justifications for it.
Walker seems to be trying to cover the radicalism of his decision by saying, in effect, “I had no choice, because I wasn’t presented with any evidence to the contrary.” He is hanging his hat on the idea that evidence equals witnesses, though that’s not the case. Remember that the vast majority of anti–Proposition 8 witnesses gave testimony that was wholly irrelevant, so the fact that the plaintiffs had more witnesses is not important. Remember too that the prospect of televising the trial scared off some potential witnesses for Proposition 8.
I think this stress on “no evidence” is not an argument, but rather taunting by Prop 8’s opponents, intended either to convince supporters that there is no evidence for their position, so it’s irrational, or to distract supporters from their effort to respond to the decision. I believe those making this argument want surrender, and defenders of marriage should not give in.