Bench Memos

Judge Walker’s Phony “Finding” Versus Defendants’ Modesty About Predicting the Future

As I’ve noted, in his criticism of Judge Vaughn Walker’s “radical” ruling against Prop 8, Jonathan Rauch, a leading supporter of same-sex marriage, soundly lambastes Walker’s absurd contention (slip op. at 125-126 (emphasis added)) that “the evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive effect on the institution of marriage.”  As Rauch observes, “that kind of sweeping certainty” about the future doesn’t fit “an unpredictable world.”

When the reader looks to the purported finding of fact (# 55) that Walker cites in support of this proposition, the assertion is even more remarkable.  Let’s set aside the fact (as Orin Kerr has discussed) that this prediction about the future can’t fairly be called a finding of fact and will certainly be entitled to no deference on appeal.  The evidence that Walker cites is trivial:  first and foremost, data supposedly showing that annual rates for marriage and divorce in Massachusetts didn’t change during the four years following judicial imposition of same-sex marriage in Massachusetts.  A grand total of four years of data limited to annual marriage and divorce rates!  Only an idiot or a hardened ideologue would conclude on that basis that it’s “beyond debate” that same-sex marriage won’t have a negative effect on the institution of marriage.  (And, as I discuss below, Walker’s finding contradicts the testimony of plaintiffs’ own expert.)

Relatedly, it’s worth noting that Judge Walker and plaintiffs’ lawyer Ted Olson have been shamelessly distorting the modest acknowledgment by Prop 8 proponents’ lawyer Charles Cooper last October (at the summary-judgment hearing) that he didn’t “know” how same-sex marriage would harm the institution of marriage: 

1.  Let’s first consider the exchange in context (emphasis added):

Walker:  “I’m asking you to tell me how it [same-sex marriage] would harm opposite-sex marriages.”…

Cooper:  “Your Honor, my answer is:  I don’t know.  I don’t know.

[More back and forth]

Cooper:  “Well,  your Honor, by—by saying that the state and its electorate are entitled, when dealing with radical proposals for change to a bedrock institution such as this, to move with incrementally, to move with caution, and to adopt a wait-and-see attitude.  Keep in mind, your Honor, this same-sex marriage is a very recent innovation.  Its implications of a social and cultural nature, not to mention its impact on marriage over time, can’t possibly be known now.”

A few minutes later, when Walker said that “I understand your answer that question”—the question of the harm that same-sex marriage would inflict on the institution of marriage—“is you don’t know,” Cooper responded:

Well, your Honor, it depends on things we can’t know. This is a — this is a — that’s my point.  And the people of the State of California were entitled to step back and watch this experiment unfold in Massachusetts and the other places where it’s unfolding, and to assess whether or not — oh, our concerns about this – about this new and — and heretofore unknown marital union have either been confirmed by what’s happening in marriage in  Massachusetts, or perhaps they’ve been completely allayed; but my point is: California was entitled not to follow those examples, and to wait and see. That’s the whole purpose of federalism.

2.  At closing argument, Cooper reiterated the impossibility of predicting the future on this point and highlighted that plaintiffs’ own expert had said the same:

The second point, Your Honor, in addition that redefining it [marriage] would inevitably change it, is that it is not possible to predict with certainty and confidence what that change will beget. It seems simply undeniable that a change that is as profound as this one, I would submit undeniably would be, would have some consequences.  But — and the plaintiffs think that the consequences dominantly will be good consequences. And, again, we respect that point of view, but it’s not something that they can possibly prove. And their own expert agrees. Professor Cott, again, said this:  “The consequences of same-sex marriage are impossible to know because no one predicts the future that accurately.”  [3089:13-25.]

So Walker’s purported finding of fact is not only not meaningfully supported by the evidence that he cites; it’s contradicted by the testimony of plaintiffs’ own expert.

3.  To compound the farce, Walker, in his opinion (slip op. at 9), somehow treats Cooper’s commonsense acknowledgement of the impossibility of predicting the future as some sort of concession that somehow impairs the ability of Prop 8 proponents to argue that same-sex marriage will have harmful consequences.  But the relevant question under rational-basis review is whether it’s reasonable to fear that same-sex marriage might have some of those consequences, not whether it can somehow be shown “beyond doubt” that it will.  (And even under a more demanding standard of review, Cooper’s simple modesty about his own ability to predict the future wouldn’t amount to any sort of meaningful concession.)

In sum:  Walker’s treatment of this point reflects brazen dishonesty or stunning incompetence, or some combination of the two.  It is a microcosm of his entire ruling.

4.  Meanwhile, Ted Olson has been purveying the same distortion.  To cite just a couple of examples:  In his Newsweek essay feebly making the case for a constitutional right to same-sex marriage, Olson stated:

Tellingly, when the judge in our case asked our opponent to identify the ways in which same-sex marriage would harm heterosexual marriage, to his credit he answered honestly: he could not think of any.

And at closing argument, Olson contended that proponents’ acknowledgment of the unpredictability of the future somehow meant that plaintiffs should win:

That is the essence of the case as it comes to the end of the trial and to the closing arguments. They just don’t know whether same-sex marriage will harm the institution of  heterosexual marriage.  [2968:2-5]

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