Thursday, March 28, 2024
Hawai'i Free Press

Current Articles | Archives

Tuesday, August 17, 2010
Prop. 8 ruling ignores precedent, evidence and common sense
By Heritage Foundation @ 11:16 AM :: 8191 Views :: Energy, Environment, National News, Ethics

By Edwin Meese III Tuesday, August 17, 2010 Washington Post

Even some who support same-sex marriage worry that, in striking down California's voter-approved proposition defining marriage as between one man and one woman, U.S. District Judge Vaughn Walker went too far. They are right -- and not the only ones who should be concerned. Walker's ruling is indefensible as a matter of law wholly apart from its result.

By refusing to acknowledge binding Supreme Court precedent, substantial evidence produced at trial that was contrary to the holding and plain common sense, the ruling exhibits none of the requirements of a traditional decision. This opinion is arbitrary and capricious, and its alarming legal methodology and overtly policy-driven tenor are too extreme to stand.

Regardless of whether one agrees with the result, structurally sound opinions always confront binding legal precedent. Walker's is a clear exception because the U.S. Supreme Court has spoken on whether a state's refusal to authorize same-sex marriage violates the equal protection and due process clauses of the 14th Amendment. In 1972, Baker v. Nelson, a case over whether Minnesota violated the Constitution by issuing marriage licenses only to opposite-sex couples, was unanimously thrown out on the merits, for lack of a substantial federal question. The Supreme Court's action establishes a binding precedent in favor of Proposition 8. But Judge Walker's ruling doesn't mention Baker, much less attempt to distinguish it or accept its findings.

During a trial, litigants from both sides introduce various types of evidence, including witness testimony, documentary evidence and legal opinions that involve "judicial notice" of certain well-known or legally controlling facts. Sound judicial opinions consider the facts and evidence on both sides of an argument, apply them fairly to the dispute at hand and determine which legal cases are on point.

Yet Walker's opinion pretends that the voluminous evidence introduced on the side of Proposition 8 does not exist. It neither acknowledges nor attempts to distinguish the writings of renowned scholars presented at trial in support of Proposition 8, including that of anthropologist Claude Levi-Strauss, history professor Robina Quale and social scientist Kingsley Davis. It ignores the writings of legal giant William Blackstone and philosophers John Locke and Bertrand Russell. It even refused to address the fact that Congress, in the 1996 Defense of Marriage Act, defined marriage as the "legal union between one man and one woman as husband and wife."

Despite ample evidence introduced into the record that only a union of a man and woman can produce offspring (as if that needs proof), Walker's opinion denied the relevance of that biological fact. That difference has been the main reason civilization recognized the uniqueness of marriage as between a man and woman, and why courts have repeatedly relied on that common-sense truth.

Despite voluminous evidence and common sense pointing to the contrary, the judge also declared that opposite sexes were never part of the "historical core of the institution of marriage"; "evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different than opposite-sex couples"; traditional marriage is an "artifact"; and, also without reference to the monumental evidence to the contrary, that it is beyond "any doubt that parents' genders are irrelevant to children's developmental outcomes."

These assertions appear in the opinion's "findings of fact" section, yet they are not facts. These "findings" derive from arbitrary and capricious non-analysis and are forcefully contradicted by evidence in the court record. No appellate court should allow the ruling to stand.

Having ignored everything courts typically rely on in making sound judgments, Walker concluded that Proposition 8 was enacted "without reason" and demonstrates "a private moral view that same-sex couples are inferior to opposite-sex couples [and are] . . . not as good as opposite-sex couples." Nothing in Proposition 8 supports such conclusions, particularly since California law grants same-sex couples all the benefits and protections that apply in traditional marriage.

People can differ on whether, as a matter of policy, states should allow same-sex marriage. The robust debate on that topic should not be short-circuited by judicial fiat.

Yet, according to the federal district court, Americans such as President Obama, Vice President Biden, Secretary of State Hillary Clinton, the majority of members of Congress and the 7 million Californians who voted for Proposition 8 are all bigots who have "no rational reason" to oppose gay marriage.

Even the usually liberal U.S. Court of Appeals for the 9th Circuit has reservations about immediately implementing Walker's exercise in judicial social engineering. A three-judge panel of the court issued a stay late Monday to prevent California's law from being cast aside before a panel can fully review the matter. It was right to do so. The rule of law demands more careful consideration of this important issue than Walker's decision delivered.

---30---

The writer is chairman of the Heritage Foundation's Center for Legal and Judicial Studies. He served as U.S. attorney general from February 1985 to August 1988.

Links

TEXT "follow HawaiiFreePress" to 40404

Register to Vote

2aHawaii

808 Silent Majority

Aloha Pregnancy Care Center

AntiPlanner

Antonio Gramsci Reading List

A Place for Women in Waipio

Ballotpedia Hawaii

Broken Trust

Build More Hawaiian Homes Working Group

Christian Homeschoolers of Hawaii

Cliff Slater's Second Opinion

DVids Hawaii

FIRE

Fix Oahu!

Frontline: The Fixers

Genetic Literacy Project

Grassroot Institute

Habele.org

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii ConCon Info

Hawaii Debt Clock

Hawaii Defense Foundation

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii Legal News

Hawaii Legal Short-Term Rental Alliance

Hawaii Matters

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

HIEC.Coop

HiFiCo

Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Moms for Liberty

Honolulu Navy League

Honolulu Traffic

House Minority Blog

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

July 4 in Hawaii

Kakaako Cares

Keep Hawaii's Heroes

Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

MentalIllnessPolicy.org

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

NAMI Hawaii

Natatorium.org

National Christian Foundation Hawaii

National Parents Org Hawaii

NFIB Hawaii News

No GMO Means No Aloha

Not Dead Yet, Hawaii

NRA-ILA Hawaii

Oahu Alternative Transport

Obookiah

OHA Lies

Opt Out Today

OurFutureHawaii.com

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Practical Policy Institute of Hawaii

Pritchett Cartoons

Pro-GMO Hawaii

P.U.E.O.

RailRipoff.com

Rental by Owner Awareness Assn

ReRoute the Rail

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

School Choice in Hawaii

SenatorFong.com

Sink the Jones Act

Statehood for Guam

Talking Tax

Tax Foundation of Hawaii

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

UCC Truths

US Tax Foundation Hawaii Info

VAREP Honolulu

Waagey.org

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii

Yes2TMT