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Judge to Voters: Drop Dead

The irrationality of Vaughn Walker.

Aug 23, 2010, Vol. 15, No. 46 • By ROBERT F. NAGEL
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When Judge Walker cannot dispense with a justification because it is supposedly illegitimate, he dismisses it on the basis of factual assertions that are highly controversial at best. Take the argument that the California law was justified as an attempt to proceed with caution on a risky change in social norms. Walker responds that “proponents presented no reliable evidence that allowing same-sex couples to marry will have any negative effects on society.” See, no need to be cautious because the judge already knows what all the effects of homosexual marriage will be.

California voters, it goes without saying, did not conclude that homosexual marriage would involve risk on the basis of the meager evidence produced in Judge Walker’s courtroom. They proceeded on the basis of historical understandings and their own experience—neither of which was Judge Walker in any position to evaluate.

In at least one place, however, Judge Walker’s opinion actually seems to insist that there can be no risk in allowing same-sex marriage because that innovation would not change the historical understanding of marriage. He says same-sex marriage would be “an evolution in the understanding of gender rather than a change in marriage.” The exclusion of homosexuals from marriage is, the judge explains, “an artifact of a time when the genders were seen as having distinct roles in society and in marriage.” That time, he opines confidently, “has passed.” Left unexplained is how a trial judge can know that the genders are no longer seen as having distinct roles in society and marriage. Isn’t disagreement about that issue one cause of the current battle over gay marriage?

Despite all its cerebral and legalistic trappings, Judge Walker’s opinion is not an exercise in some detached and impartial form of rationality. Like the law it invalidated, his opinion is a reflection of aspirations, fears, guesses, and moral judgments. In political debate, people generally make no pretense about the controversial and uncertain nature of their arguments. Most jurists, in contrast, believe that judicial application of the “rationality test” is different from political argumentation. It is thought to be a high intellectual exercise that constrains the worst excesses of political decision making. What is at least as frightening as the unruly world of politics is the supercilious and resolutely self-satisfied world occupied by judges like Vaughn Walker.

Robert F. Nagel is the Rothgerber professor of constitutional law at the University of Colorado Law School.

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