Western Civilization

-By Timothy Dalrymple

While the conclusion Judge Vaughn Walker drew in Perry v. Schwarzenegger is completely unsurprising, the scope of the ruling and its many declarations on matters ethical, psychological, and theological is nothing short of astonishing. To call it a case of judicial overreach is to indulge in severe understatement. Judge Walker not only ruled that Prop 8 violated the equal protection and due process clauses, he held forth on everything from the motives of California voters to the essential nature of marriage to the appropriateness of voting according to moral and religious convictions. What was supposed to be a trial of the constitutionality of Proposition 8 became a trial of the rationality of those who oppose same-sex marriage — and Perez Hilton could hardly have supplied a more one-sided conclusion. Prop 8

Judge Walker was conscious, of course, that his ruling would be appealed all the way to the Supreme Court. Appellate courts do not generally rehearse the discovery of “facts.” They investigate whether the right laws and precedents were rightly applied to the facts of the case. Yet Judge Walker strategically located his most explosive claims — which are not “facts” at all but his own moral intuitions — in the lengthy “findings of fact” portion of his ruling. He determines, for instance, that “Gender no longer forms an essential part of marriage.” Yet this, it must be admitted even by those who agree with the statement, is not a simple finding of fact. How was the judge able to determine this? What does it mean to be an essential part of marriage, and if it is no longer essential, then when exactly did it cease to be so? The attempt to discover demonstrable “facts” when it comes to matters of value, psychology, and theology was a misbegotten enterprise from the beginning.
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Prop 8: Three Options for Social Conservatives”