When a Federal Court judge in San Francisco
struck down a ban on same-sex marriage in the California constitution yesterday, he
reinforced one of the great clichés of American politics: that the US is
divided into Red states and Blue states.
Most of the 138-page decision was taken up
with an examination of sociological evidence for and against same-sex marriage.
Opponents of Proposition 8, the ballot initiative which described marriage as
the union of a man and a woman and welded it into the state’s constitution, trotted
out nine expert witnesses. Half of them had Ivy League PhDs or are teaching at
an Ivy League university. The other half had University of California PhDs or are
teaching at a UC campus.
The Federal Court needs a few training sessions in diversity management.
Proposition 8 passed in 2008 with the
support of 52 percent of voters after a hard, even vicious, campaign. Ballot
initiatives have turned California into an ungovernable, almost broken state,
but they are democracy in action. To overturn the voters’ decision, Vaughn R.
Walker, the chief judge of the Federal District Court in San Francisco, basically
had to prove that they were too dumb and prejudiced to know what they were
The nub of his argument is that although
decisions of the electorate deserve some respect, they have to be based on
reason and evidence. “Conjecture, speculation and fears are not enough. Still
less will the moral disapprobation of a group or class of citizens suffice, no
matter how large the majority that shares that view.”
And in this case, Judge Walker was scathing.
“The evidence demonstrated beyond serious reckoning that Proposition 8 finds
support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the
voters or their representatives.”
In other words, an amendment banning same-sex
marriage is roughly equivalent to banning the law of gravity – ignorant redneck
The tone of the judgement is so sarcastic,
so full of disdain for a traditional view of marriage, that it is hard to believe
that Walker – who was outed as
a homosexual earlier this year – was not blinded by his own
prejudice. However, the champions of marriage had already deserted the field.
California Attorney-General Jerry Brown and all of the state officials named in
the lawsuit refused to defend the decision of their constituents, as they had been elected to do. Once the State of California refused to defend its own constitution, the battle was lost.
On the first day of the trial, the lawyers
defending Proposition 8 withdrew four witnesses. Apparently they feared vilification
and retaliation from foes of Proposition 8 because Judge Walker was going to
allow proceedings of the case to be televised and even broadcast on YouTube. While
that never eventuated, in the end, only two witnesses testified in support of traditional
The first was an expert on families and the
founder of the Institute for American Values, David Blankenhorn. However, he does
not have a PhD and does not have an academic position. Walker dismissed him as
an ignoramus: “Blankenhorn’s opinions are not supported by reliable evidence or
methodology and Blankenhorn failed to consider evidence contrary to his view in
presenting his testimony. The court therefore finds the opinions of Blankenhorn
to be unreliable and entitled to essentially no weight.”
It was the triumph of credentialism over democracy.
In a sense Blankenhorn, though a staunch
defender of marriage, was a puzzling choice as a witness. He insists that he
respects gay relationships and believes in
the “equal dignity of homosexual love”. The other witness, Kenneth Miller,
testified about gay and lesbian politics. Walker had no respect for him,
Walker sardonically depicted the testimony
of the pro-marriage side as ill-educated, ill-informed, and moronically
inarticulate. When he asked the counsel for the Proposition 8 side why the
state had an interest in ensuring that marriage was procreative, the lawyer
replied, “Your honor, my answer is: I don’t know. I don’t know.”
So, in determining whether the voters had
acted rationally, and not out of atavistic prejudice against homosexuality or
preconceived moral ideas, Walker relied upon the nine academics.
Only two of them had connections other than with elite institutions on the East
or West coast – a University of Illinois PhD who teaches at Stanford (in
California), and Yale PhD who teaches at Cambridge University in the UK.
Where were the academics defending the conviction of America’s heartland?
Walker found the witnesses in favour of
same-sex marriage charming and persuasive: “As the education and experience of
each expert show, plaintiffs’ experts were amply qualified to offer opinion
testimony on the subjects identified. Moreover, the experts’ demeanor and responsiveness
showed their comfort with the subjects of their expertise. For those reasons,
the court finds that each of plaintiffs’ proffered experts offered credible
opinion testimony on the subjects identified.”
Isn’t there something seriously screwy about
settling a matter of immense social and legal significance on the basis of
peer-reviewed studies in obscure journals by gay and lesbian academics from a
tiny handful of universities? In any case the notion that empirical evidence
can prove social values is itself highly contestable. Focus groups, polls and
peer-reviewed studies are not why we prefer democracy to tyranny.
Judge Walker’s judgement in Perry v.
Schwarzenegger is a farrago of prejudice and contempt for voters which will reinforce
conservative America’s views that judges are a threat to democracy. But if it
is to be overturned, defenders of marriage will have to make a far better case.
Michael Cook is editor of MercatorNet.