One single solitary (gay) Liberal lawyer in black robes overturns the votes of 7 million Californians with the stroke of a pen. From Andrew Sullivan:
What strikes me about Judge Walker’s opinion is the amount of evidence he included there – numbered, paraphrased facts with direct citation to and quotation from the trial record. As a lawyer, I can’t say that I have ever seen a judge include that much of the trial transcript in an opinion. He would have done this to make his record so that when the case is appealed – as everyone knows it will be – he has included enough direct evidence produced at trial to support his application of the law. His clerks made that trial record their bitch, and Judge Walker took that dog for a walk.
Whether the appeals court overturns on the application of law is a different issue. But it’s not going to be a fact issue that does it. And then the way that he completely flicks away Prop 8 proponents’ experts’ testimony. The man is smart.
Here is a summary of the court’s findings of fact:
1. Marriage is and has been a civil matter, subject to religious intervention only when requested by the intervenors.
2. California, like every other state, doesn’t require that couples wanting to marry be able to procreate.3. Marriage as an institution has changed overtime; women were given equal status; interracial marriage was formally legalized; no-fault divorce made it easier to dissolve marriages.
5. Same-sex love and intimacy “are well-documented in human history.”
10. “Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital union.”
11. “Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.”
12. “The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.”
13. “Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.”
And conclusions from Ace:
Here’s why that matters: in an equal protection or due process challenge like this case, findings of fact are reviewed on appeal for “clear error” while legal conclusions are reviewed “de novo.” In other words, the appelate courts will give great deference to the trial judge’s findings of fact, but can completely throw his legal conclusions out the window.
The fact that Judge Walker made pages and pages of factual findings indicates to me that he was extremely conscious of the standards of review and used the shoddy performance of proponents to produce evidence (who were actively sabotaged by putative-defendant the State of California) as a means of protecting his decision somewhat from appellate review.
Where would modern Liberalism be without its activist judges. Appellate trials involving cases of great societal import are often decided on their politics. Sure, the judges try to use the facts and law to justify their ruling, but the results they want to achieve are often a foregone conclusion based on their own personal bias, how the judge wants to be remembered by posterity, and the politics. This is why elections matter, and why judicial appointments are so important. Oh, and one thing they don’t mention is that the judge in this case is gay. Bias? What bias! It’s one of those “unmentionables.” And he didn’t recuse himself. Will this “finding of fact” be considered by the Supreme Court?