More broadly, if courts are to be tasked with charting the course of society’s foundational institutions by tallying “harms,” it’s important to ask what have we lost in the process. The question “What is marriage?” may not lend itself to easy answers or evidentiary proofs, but it is an essential question, one that societies have been addressing for centuries. Citizens today disagree with the views of earlier eras, just as citizens even ten years from now will likely disagree with ours. The cultural and ultimately political processes by which the history of civil marriage continues to unfold is messy, halting, and frequently infuriating to participants of all ideological stripes. But replacing those processes with one judge’s evaluation of a few expert witnesses carries a cost. Courts have played a role in shaping civil marriage in past eras, particularly regarding interracial marriage, but not in redefining an element of marriage deemed non-negotiable by a broad swath of society spanning many otherwise disparate historical eras.
Of course, Judge Walker adopted a defintion of what marriage is for based, as Rob puts it, on the testimony of a singular historian. I have read her testimony. It describes certain changes in marriage law. It hardly resolves the question of what marriage is for. In fact, it would seem that the more current actions of the political brances - and of the voters of California acting by referendum - would be more significant on that question.