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Today’s Proposition 8 Decision

Conservatives have long said that the day would come when liberal judges declare the Constitution unconstitutional. That happened today, when a gay federal judge in San Francisco, relying on the opinions of mostly-gay “expert” witnesses, ruled that an amendment to the California constitution, which was adopted in perfectly proper fashion by a substantial majority of voters, is “unconstitutional.” In this context, unconstitutional means “unpopular with me and my friends.”
As a legal matter, Judge Walker’s decision is a bad joke. It will be appealed, of course, but the outcome of the appeal will be determined by politics, not law. I think it is safe to assume that anyone nominated to the Supreme Court by a Democratic President is explicitly or implicitly committed to the proposition that gay marriage is a constitutional right. If you think that is bizarre, stop voting for Democratic politicians.
SCOTT adds: Lest one think that John might be exaggerating, Kathryn Lopez does us the favor of drawing attention to this great thought from Judge Walker’s endless opinion: “Gender no longer forms an essential part of marriage.”
When precisely did “gender” drop out of the equation? Judge Walker puts me in mind of Philip Larkin’s insight:

Sexual intercourse began
In nineteen sixty-three
(which was rather late for me) -
Between the end of the Chatterley ban
And the Beatles’ first LP.

PAUL adds: Here is Ed Whelan’s take:

Short version: Everything that plaintiffs’ “experts” say is beyond dispute. E.g.: “[T]he evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes.” “The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples.” (I would have thought that it’s equally clear that “moral and religious views form the only basis for a belief” that the laws against murder should protect all persons.)
Judge Walker makes little or no reference to the fact that nearly all of plaintiffs’ “experts” are political activists for gay causes and that many or most are in same-sex relationships. They’re just neutral experts. In the same way that Walker is just a neutral judge.

As John suggests, Judge Walker’s decision is the fruit of a lengthy process through which an eilite within the legal profession has worked tirelessly in an effort to blur, hopelessly, the distinction between the law and personal preferences of that elite. If the decision stands, its main impact will be a diminution, probably past the tipping point, of public confidence in the law and the courts.
In one sense, this would be a good thing. Why should the public be played indefinitely for fools by the legal elite? Better that it should be let in on the joke. But who really wants to live in a society where the public has lost its confidence in the law and the courts?

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