Posted by: Paul | 08/17/2010

Avoiding “Judicial Fiat”

On Aug. 4, U.S. District Judge Vaughn Walker threw out Proposition 8, California’s voter-approved ban on same-sex marriage. But don’t drop those invitations in the mail just yet. A three-judge panel of the Ninth U.S. Circuit Court of Appeals in San Francisco has put that ruling on ice – at least until December, when the court will consider a request by Prop 8 proponents to dismiss Walker’s ruling.

The court would do well, in the meantime, to read an op-ed by Edwin Meese III in The Washington Post. The former U.S. attorney general explains why even those who support same-sex marriage should be profoundly troubled by the legal ramifications of what he calls Judge Walker’s “arbitrary and capricious” ruling:

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.

Walker’s ruling, in Meese’s view, is simply “too extreme to stand.” He goes on:

[S]tructurally 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 … 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.

As for the lopsidedness of Judge Walker’s ruling:

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.’

Meese concludes:

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.

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