Questions of Law and Questions of Power

Edwin Meese is not impressed with U.S. District Judge Vaughn Walker's decision that the Constitution requires recognition of same-sex marriage:

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. This opinion is arbitrary and capricious, and its alarming legal methodology and overtly policy-driven tenor are too extreme to stand.

Regardless of whether one agrees with the result, structurally 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, for lack of a substantial federal question. 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.

A summary of the legal history of Baker illustrates that many of the arguments for the maintenance of traditional marriage were the same back in the early '70s as they are now — notably that marriage is intrinsically tied to procreation, that some opposite-sex couples' decision not to fulfill that link (or inability to do so) in no way eliminates the norm, and differences of race and of sex are not equivalent. The difference, nowadays, is that a significant portion of the ruling class — those in the judiciary leading the way — has decided simply to ignore basic meaning and common sense.