Legal Commentary

Is Judge Walker?s Opinion Really that Compelling?

By Jonathan H. Adler

By now I?ve read dozens of blog posts and commentaries attesting to the power and persuasiveness of Judge Walker?s opinion striking down California?s Proposition 8 barring gay marriage.  But as far as I can tell, everyone I?ve seen take this position was predisposed to accept Judge Walker?s conclusion.  Lots of supporters of gay marriage and academics who believe it is a constitutional right celebrate the force of Judge Walker?s reasoning.  But what I have yet to see is someone who opposed the legal arguments, or at least approached them as a skeptic, announcing that Judge Walker?s opinion has changed, or at least shaken, their views on the matter.  In other words, the commentary on Judge Walker?s opinion is a perfect example of confirmation bias.

I support gay marriage.  Marriage, in my view, is first and foremost a private institution and insofar as the state has anything to say in who gets married, I don?t think it should distinguish between gay and straight couples.  If two men or two women want to solemnize their love for one another, the government should not stand in their way.  I?ve also been convinced by Dale Carpenter?s arguments that recognizing gay marriage is the prudent ? and dare I say ?conservative? ? thing to do.  But I am not convinced that gay marriage is required by the 14th Amendment, and Judge Walker?s opinion has not changed my view.  He makes many sweeping pronouncements and factual findings with which I agree, but I don?t think his opinion rests on particularly solid legal ground, let alone a proper interpretation of the constitution?s text.  It may well be perfect pitch to Justice Kennedy, but predicting the inclinations of one idiosyncratic justice is not a particularly good measure of a legal argument?s intrinsic force.  So while some fiind Judge Walker?s opinion powerful and convincing, I remain unconvinced.

Full post as published by The Volokh Conspiracy on August 06, 2010 (boomark / email).