By Vischer, Robert K.
Commonweal , Vol. 137, No. 15
One of the many ways the Constitution's framers showed their collective wisdom was by embedding the rule of law into the very framework of our system of government. Judicial review of popularly enacted laws keeps the majority accountable to underlying constitutional principles. Of course, one person's core constitutional safeguard is another's judicial activism run amok. And so, in a range of hot-button "culture war" cases, lower courts have tried to steer clear of the dreaded "judicial activist" label by shifting their analysis from the constitutional principles themselves to the facts through which the principles may be invoked. At times these days, the rule of law looks more like the rule of facts.
Facts were certainly the unmistakable focus of Judge Vaughn Walker's recent ruling in Perry v. Schwarzenegger. In striking down Proposition 8, the California law limiting valid marriage to that between "a man and a woman," Walker's 136-page opinion devoted a mere 26 pages to legal analysis, while 100 were spent reciting and evaluating the evidence presented at trial. For a judge looking to transcend the ideological labels that often attach to high-profile cases, this is an understand-able strategy. And indeed, Judge Walker's work was quickly praised by many as "a very careful analysis," "meticulously crafted," a "comprehensive, detailed decision." Yet a constitutional analysis of same-sex marriage is not an obvious fit for an evidentiary trial, which is more generally associated with such questions as whether driver error or brake failure caused a traffic accident.
Consider the eighty findings of fact made by Judge Walker, many of them far more speculative than the usual "plaintiff drove his car too fast on wet pavement" variety. Given the court's eventual conclusion that a ban on same-sex marriage lacks a rational basis, the factual findings needed to show that same-sex marriage harms no legitimate state interest. This was a tall order, and Walker marshaled the facts aggressively--and, critics say, overconfidently. Some of his fact findings come across as premature, portraying contested and unverified issues as conclusively settled. See, for example, no. 55 ("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"); no. 70 ("The gender of a child's parent is not a factor in a child's adjustment"); and no. 71 ("Having both a male and a female parent does not increase the likelihood that a child will be well-adjusted").
Such uncertain "facts" form a slippery basis for judgment. But far more problematically, the very act of using facts to resolve deep cultural divisions effectively discards many of the weightier questions that make such issues worthy of deep societal reflection in the first place. Significantly, unlike many political arguments for and against same-sex marriage, Walker's constitutional mandate does not emanate primarily from our society's understanding of marriage or from some broad moral narrative. Instead, it takes shape from the tallying of "harms." The logic goes like this: If extending marriage to same-sex couples does not cause a harm demonstrable through evidence in court, then same-sex marriage must be allowed, since the harms to gays and lesbians--both psychological and, in states that lack comprehensive civil-union statutes, material--are readily discernible. And so the debate about same-sex marriage is over, summarily ended by judicial fiat.
Harms surely must be part of our conversation about marriage's future; indeed, a wider awareness of the harms suffered by committed same-sex couples has likely fed growing public support for same-sex marriage. But the public conversation itself translates awkwardly, at best, into the courtroom, where evidentiary rules operate as a stringent filter, and outcomes turn on the strategies and competence of adversarial attorneys. …