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Perry v. Schwarzenegger — the reductio ad absurdum of “living constitution” jurisprudence

I haven’t attempted any real analysis of Judge Vaughn Walker’s decision declaring California’s Proposition 8 unconstitutional. Nor, for two reasons, do I intend to. First, the decision is really just a place-holder until the Supreme Court (and in particular Justice Kennedy) has its say. Second, I can’t take the decision seriously as an intellectual matter.
The notion that the Fourteenth Amendment to the U.S. Constitution bars the government from adhering to the traditional understanding of what is and is not marriage strikes me as ludicrous. That understanding was nearly universal in this country when the Amendment was enacted and remained so for at least one hundred years. It still prevails today. Should the time come when it no longer prevails, it can and will be overturned democratically.
If an argument that adherence to the traditional understanding of marriage is unconstitutional can be cobbled together from existing Supreme Court jurisprudence, that tells me this jurisprudence is hopelessly misguided, not that there is a constitutional right to gay marriage. In other words, Judge Walker’s decision represents the reductio ad absurdum of left-wing “living Constitution” jurisprudence. If the Supreme Court reaches the same result, its opinion will probably replace Roe v. Wade as the symbol of judicial activism intolerably run amok.
Ironically, Vaughn Walker is quite a good judge in ordinary cases. And I know from favorable experience that he is adept at writing opinions in a way that minimizes the likelihood of reversal.
In this case, he seems to have tried to accomplish this through a series of “findings of fact.” True findings of fact are meat and drink for district courts, and appellate courts usually give them great deference.
But the kind of findings Walker made in this case aren’t findings of pure fact (e.g., the traffic light was red or plaintiff was warned that another incident of tardiness would result in her termination). The findings did not implicate the particular expertise judges are thought to have (and often do have) in assessing witness credibility. Instead, they are mostly opinions about psychological and sociological issues (e.g., “sexual orientation is a fundamental characteristic of a human being” or “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”).
As Dave Hoffman and Orin Kerr point out, these kinds of “facts” are not likely to receive much deference; nor should they. Quite apart from the strong suspicion that Judge Walker, a gay man, is biased, he has no special expertise when it comes to discerning the human condition or figuring out the social consequences of legal change.
This doesn’t mean that the Supreme Court won’t ultimately agree with Walker that Prop 8 is unconstitutional, or even that his “factual findings” won’t appear in a majority opinion. But if they do, it will be because a majority wanted to reach that decision, not because Judge Walker’s view of sex, marriage, and society hemmed them in. After all, discerning the human condition and figuring out the social consequences of legal change are Justice Kennedy’s jobs, and he isn’t about to hand them over to some district court judge.

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