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.