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Carlos A. Ball: What Judge Walker’s Ruling Tells Us About the Right’s Twenty-Year Campaign of Spreading Fear on Same-Sex Marriage

August 6, 2010

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By **Carlos A. Ball**

The most striking aspect of Judge Vaughn Walker’s ruling, voiding California’s ban on same-sex marriage, is how it makes clear that defenders of Proposition 8 did not even come close to presenting evidence in court supporting their claim that gay marriages harm society and individuals. It is one thing to say, during a political campaign in support of a ballot initiative, that same-sex marriage constitutes a threat to society or to the family or to children. It is another thing altogether to back up those claims through the introduction of specific evidence in a court of law.

Judicial rulings by trial courts are almost always forgotten after appellate courts have their say. This is hardly surprising given that appellate courts get the final word on how a lawsuit should be resolved. But there is one thing that trial judges can do that appellate judges cannot, and that is make findings of fact based on evidence submitted by the parties.

For the last twenty years, conservative activists have been prognosticating doom if society were to give same-sex couples the opportunity to marry. And yet, when they had the chance to defend that claim in court earlier this year, they called only one witness—David Blankenhorn, the President of the Institute for American Values—to testify. While on the stand, Blankenhorn gave such a convoluted and unsupported explanation of how same-sex marriage is harmful—he claimed that it contributes to the “deinstitutionalization” (whatever that means) of traditional marriage—that Judge Walker’s ruling gave no weight to his testimony.

By highlighting both the strength of the factual case presented by Proposition 8 challengers…Judge Walker has made it more difficult…for the high Court to uphold the constitutionality of same-sex marriage bans.

The private lawyers defending Proposition 8 in court are good and smart attorneys. The lead counsel, Charles Cooper, was named by the National Law Journal as one of the ten best civil litigators in Washington, D.C. If there were respected experts out there who could support the claim that same-sex marriage is harmful, you can bet that Cooper and his associates would have had them testify at trial. The fact that Blankenhorn was their only witness on the question of how same-sex marriage is harmful speaks volumes about the lack of empirical support behind the claims of same-sex marriage opponents.

Closet to the Courtroom.jpg
In contrast, Judge Walker noted in his ruling the extensive factual evidence introduced by the challengers to Proposition 8. That evidence amply supported three key claims. First, that same-sex couples do not differ from different-sex ones in their commitment to or satisfaction with their relationships. Second, that allowing same-sex couples to marry has absolutely no effect on the number of different-sex couples who marry, cohabit, or divorce. And third, that the recognition of same-sex marriages benefits children of same-sex couples while having no negative effect on the children of heterosexuals.

Now that Judge Walker has found that the facts are indisputably on the side of same-sex marriage supporters, it will be up to appellate courts—including, in all likelihood, the Supreme Court—to weigh in on whether he was also correct, as a legal matter, in holding that Proposition 8 is unconstitutional.

In a blog post last year, I expressed reservations about whether this is the right lawsuit at the right time, mainly because I believed then (as I still believe now) that there are not five Justices on the current Supreme Court who will be willing—despite the clear facts in the case—to strike down a ballot measure, approved by a majority of a state’s voters, defining marriage. But it is important not to confuse the imperfect art of predicting Supreme Court votes with the strength of factual claims by those challenging the constitutionality of a given law. By highlighting both the strength of the factual case presented by Proposition 8 challengers, while laying bare the immense weaknesses in the factual claims made by the law’s supporters, Judge Walker has made it more difficult—though not necessarily impossible—for the high Court to uphold the constitutionality of same-sex marriage bans.

Copyright 2010 Carlos A. Ball

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This post originally appeared at BeaconBroadside.com.

Carlos A. Ball is Professor of Law at the Rutgers University School of Law (Newark). He has written extensively on gay rights issues and is the author of From the Closet to the Courtroom: Five LGBT Rights Lawsuits That Have Changed our Nation (Queer Action/Queer Ideas).

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