First Reactions on Perry
Here are my hasty reactions to a decision I’ve only partly read. I’m distracted by personal matters tonight, but I’ll probably update as the evening goes on.
One big loser in all this is David Blankenhorn. He appears richly to deserve it. Judge Walker rightly faulted him for likening committed same-sex couples’ parenting outcomes to those of single-parent families, and saying that because single-parent families show inferior outcomes, same-sex couples obviously do too. This is something I’ve complained about in the past, and it’s one of the many dirty tricks of the anti-SSM side.
Another is to say that because a given group shows inferior parenting outcomes, we must prohibit marriage to the entire group. If this premise were true, we would be forced to prohibit marriage — and a fortiori procreation — to the poor, which is obviously an absurd outcome. This too is at least hinted at so far — group outcomes are a lousy reason to deny individual due process.
One thing that becomes very, very clear in reading this decision is the utterly pathetic case the defense put up. Surely they could have done better. Because the evidentiary phase was essentially a debate between experts Nancy Cott and David Blankenhorn, it wasn’t even close. On appeal, new evidence won’t be allowed. This ship is going to sail to the supreme court with one side seriously listing.
I’ll have more in a while, but so far the decision is looking very, very good.
Update: Here’s one especially good bit:
The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law.
Sounds like he read my bit about Hayek and immanent critique from earlier today. We’ve seen a refinement of the institution of marriage in terms of a cherished ideal — equality before the law. Well done.
Update II: Dale Carpenter is worried about the decision’s “judicial maximalism.” I’d call it hard bargaining, at the very least. But I do wonder, if either strict scrutiny or rational basis review were enough on their own, then one or the other must be mere dicta — unnecessary and without legal force — no? And whenever you find in terms of strict scrutiny, the rational basis review is unnecessary, because it’s already flunked on that test. Someone a bit better trained in the law might be able to tell me what I’m missing here, but I don’t think I’ve missed anything I’m aware of.
Update III: Here’s another bit of thinking from the opposition that just doesn’t hold water:
“Today’s ruling is clearly a disappointment. The judge’s invalidation of the votes of over seven million Californians violates binding legal precedent and short-circuits the democratic process.”
Unless you’re prepared to say that no referendum can ever be overturned by a judge, you’ll need to offer more than that. The United States is not and never has been a pure democracy, nor is our government one without limits. An important limit to government is fair play, which is what judges are there for. (Ht: Box Turtle Bulletin.)
Update IV: I know I’m replying more to replies than to the decision itself, but… to Orin Kerr: If permitting same-sex marriage is in itself too rapid a social change, how does one ever achieve same-sex marriage? Consider that marriage-lite or civil unions are both either invidious distinctions — separate but equal — or themselves too-rapid social change, and the question seems hard to answer. At some point, someone has to bite the bullet. It seems to me that on these grounds it might be inappropriate to enact same-sex marriage across the entire country, sure, but if so, Obamacare falls to the same reasoning, as does Medicare Part D, No Child Left Behind, Social Security privatization, school choice, a human life amendment, and plenty of other conservative (or liberal) desiderata.
We have states to serve as laboratories of social experiment, don’t we? If California is too large a laboratory — and perhaps it is — then the remedy is to break it up into two or more states, not to rule out same-sex marriage or any other non-procedural goal.