Here's the only really striking thing about Judge Vaughan
Walker's opinion in Perry v.
Schwarzenegger: Its 136 page length includes 108 pages of
facts -- 108 pages of dry, straightforward, meticulous, and ordered
citations to the evidence in the trial.
It might be easy for a layperson to misunderstand that. This is
not a sexy opinion. There are no rhetorical fireworks, no forging
of new and creative legal theories, no soundbite-worthy quotes, and
not a trace of grandstanding. This is a very competent and
workmanlike opinion from a trial court judge who was doing his
That job is to (1) allow both sides ample and fair opportunities
to present the facts in the dispute; (2) determine which are the
most credible and relevant facts, given the existing law on the
subject; and (3) apply those facts to that law in order to reach a
decision about which side should prevail.
Most people will focus on this as a legal opinion, but that
isn't its strength, and it shouldn't be. Trial judges are
primarily there to gather the facts, not theorize about the law.
Despite temptations from some excellent lawyers who know their way
around the caselaw, Judge Walker didn't accept any offers to kick
the tires on novel and edgy legal theories. Instead, he relied on
longstanding federal constitutional law - specifically that old
workhorse, the Fourteenth Amendment -- and applied it in the most
modest way possible, using the most generous standard available to
the proponents of Prop 8: they only had to show that there was some
rational basis for the voters to distinguish between same-sex
couples and opposite-sex couples. Any rational basis would do.
The proponents had every opportunity to build their case over
the many months of discovery, depositions, witness-preparation and
actual testimony at the weeks-long trial. Virtually all of their
evidence is laid out in those 108 pages of facts.
And it isn't much. In fact, at one point one of their lawyers
simply said they shouldn't have to present evidence, shouldn't have
to come up with actual facts to support their case.
Contrast that with the plaintiffs challenging Prop. 8, who brought
forward a small battalion of witnesses, both civilians and experts,
introduced what we can only imagine to be millions of pages of
documents and depositions, hours of video and taped recordings, and
enough motions, counter-motions, memoranda and oppositions to
memoranda to - well, to win their case.
And in a nutshell, that's where we now stand as a nation on the
issue of same-sex marriage. Those of us who support same-sex
marriage not only believe we are right, we are making that case
based on evidence in the world around us. Those who oppose
same-sex marriage deeply believe they are right and have always
been right, and have a very hard time comprehending that they
actually have to defend themselves. Where is the need for
evidence, for facts?
But what they have historically taken for granted is now in
question. Yes, marriage has always been understood as being
between one man and one woman (with biblical polygamy confusing
this simplicity), but why? What is it about marriage that makes it
an unsuitable - to some, an unimaginable - legal and social
institution for same-sex couples?
During all those centuries when no one asked these questions, no
one ever needed to answer them. But we are asking the questions
now. And under the rules that govern our country - under the
constitution - we have charged the courts with providing the forum
to provide the answers.
Judge Walker's opinion does exactly that, and not a thing more.
He opened the court - our court - to both the proponents of Prop. 8
and its challengers, and let them do the best they could to answer
the questions we may not have asked in centuries past, but have a
profound need of asking now.
Anyone can read those 108 pages (though few will), and find
little to criticize there. The only criticism from same-sex
marriage opponents will be the bottom line, the conclusion that
there really isn't a rational reason, today, for the law to treat
heterosexual couples as a favored class over homosexual
Perry v. Schwarzenegger lays out all the reasons
offered, and each one erodes under the steady drip of the evidence
that was presented. In the end, all that is left is fear and
superstition about homosexuals. Those are things that can motivate
voters, but the constitution does not credit them as justifications
for the law.