Friday, August 13, 2010

Perry Prognostications

In response to a post on the decision in Perry v. Schwarzenegger, a mini debate on same sex marriage has broken out in the comments. I really haven't had time to follow on them although I have started to read through the trial transcript in Perry. Since I developed a specialty in the cross examination and refutation of social science experts at Foley, I have been interested in the uses and misuses of social science in trials.

I haven't completed the transcript but the record hardly matches Judge Walker's bold pronouncements that social science has resolved a number of highly controverted issues "beyond a doubt." In fact, the transcript seems to reflect the fact that social science has resolved very few of the questions pertinent to same sex marriage.

Now the Judge has announced that he doesn't think that the defendant-intervenors can appeal. He might have been better served by declining to comment. He doesn't get to decide whether they can appeal and his pronouncement, while arguably relevant to the defendant-intervenors' request for a stay, just contributes to the general impression that he had this case decided before it started.

All of this suggests that the case is a mess. Those parties who one would have expected to defend the law of California - the Governor and Attorney General - declined to do so. The defendant-intervenors put on a curiously truncated case and the district judge relied on a very thin record to find some truly startling facts (e.g., gender is not central to the definition of marriage and has nothing to do with parenting)which, it will now be claimed, are entitled to deference on appeal. This flawed vehicle is supposed to be the basis on which the Supreme Court resolves - for all Americans everywhere - the question of same sex marriage.

The case actually reminds me a bit of Bush v. Gore. Quite apart from whatever legal doctrine required, it was an abomination with Florida proposing to conduct a partial recount calculated to favor the Democrats (even though, as it turned out, it would not have been enough to put Gore over the top). I just don't see Perry resulting in a SCOTUS determination that same sex marriage is constitutionally compelled. In fact, it wouldn't shock me if that position gets only two votes.


Sue B said...

Watch the entire thing and decide for yourself at

Dad29 said...

Time Mag-a-Rag (FWIW) opines that Walker's dicta may create a problem: if the defendant-intervenors do NOT have 'standing,' then the entire trial could be tossed out.

Anonymous said...


If “social science has resolved very few of the questions pertinent to same sex marriage” then that means that after all these years of debate, the social sciences have not found any justification for banning same-sex marriage. I know you read all uncertainty against same-sex marriage and worry about “unintended consequences” but, as I have written to you several times; the rule of unintended consequences works both ways: whether you act to change the status quo, or act to preserve it.

You call “truly startling” the fact that “gender is not central to the definition of marriage and has nothing to do with parenting”. That gender is not central to the definition of marriage is hardly startling if you have been paying attention to this topic for the last few years. You might not agree with it, but “startling”? You can’t even refute the concept, much less be surprised that a Judge could find it factual.

The last half of that sentence is ambiguous; are you startled that “gender … has nothing to do with parenting” or that “marriage … has nothing to do with parenting”?

I will not venture an opinion about whether the defendant-intervenors can appeal or not, that will get sorted out and should not undermine the holding itself.

I also will not venture an prediction about how the Supreme Court might rule on this matter, but no one is asking the court to find that “same-sex marriage is constitutionally compelled”; only that equal protection is constitutionally compelled and that banning same-sex marriage is not related to any rational, legitimate state purpose. All the Supreme Court will be asked to compel is that States get out of the way of the liberty interests of their citizens; which is a proper thing for that Court to do.

sean s.

Mike Plaisted said...


Long time, no comment.

I am sorry to see you sinking to the game played by right-wingers everywhere -- that of trying to re-write history.

In Bush v. Gore, the right-wing majority of the Supreme Court selected Bush by shutting down a STATE-WIDE recount of undervotes, not the "partial recount" initially requested by Gore.

Your attempt to minimize the Bush Supreme Court majority's outrageous hijacking of the democratic process in Florida - not to mention the historically miserable decision attached to it -by fudging the facts is pretty pathetic.

I know you are spending most of your time in the alternative universe of the right-wing intelligencia, such as it is (What's next? Citing to the law of McIlerhan?). But your credibility is taking a beating here in the real world.

Mike Plaisted