Misguided Judicial Power

In the last month, federal judges in Massachusetts and San Francisco delivered rulings striking down the traditional legal definition of marriage. These decisions remind us of the extraordinary power of our judiciary, and often that power may be misguided.

Doubtless the judges think they’ve issued landmark decisions. But landmarks are not always things of beauty. The nation has learned, often bitterly, as with the 1973 Supreme Court decisions on abortion, that raw judicial activism more often pockmarks than bedecks the public debate.

Unless overturned on appeal, Judge Vaughn Walker’s decision striking down California’s voter-approved Proposition 8 is likely to have the same result as the abortion rulings.

For starters, it flies in the face of California’s history on the issue. California is widely regarded as being “wide open” when it comes to social issues. It offers civil unions for same-sex couples, few if any legal limits on abortion, rivers of public spending for just about any social cause going. If same-sex marriage is to fly in the United States, California is one of the likeliest launching points.


Yet in 2008, more than 7 million Californians approved Prop 8, a popular initiative defining marriage as the union of a man and a woman. It was no fluke. They approved a similar measure in 2000. After exhaustive debates and well-funded public information campaigns, California voters decided — twice in less than 10 years — that same-sex marriage is just a bridge too far.
 

They are not alone. Over just a slightly longer period, 30 states have held votes on the definition of marriage. In all instances, the outcome mirrored California’s. Of the nearly 60 million popular votes cast on the issue, nearly 64 percent have favored traditional marriage.
 

Besides these 30 states, 15 others have statutory definitions of marriage and/or laws designed to ensure that these states will not recognize same-sex marriages contracted elsewhere. Moreover, both the New York and New Jersey general assemblies rejected same-sex marriage legalization earlier this year.
 

It is inconceivable that all these legislators and all these citizens who have cast ballots in support of the traditional definition of marriage embody the religious and personal bigotry that Walker ascribes to them in his 136-page ruling. His opinion, though long, is neither exhaustive nor persuasive.
 

A particularly striking feature is the opinion’s armchair sociology. Forget for a moment the theory on which the judge seems to be proceeding: that the opinions of a handful of carefully chosen Ph.D.’s should override the lived wisdom of millions of citizens.
 

As Walker delved into the writings and testimony of the witnesses, he operated the way Russian figure-skating judges were once wont to do — with a certain bias. The academics whose work he accepted and cited were on record as favoring same-sex marriage. The academics whose work he completely dismissed generally supported Prop 8, and certainly the belief that this is a topic best left to legislative give-and-take.
 

The resultant ruling is rife with “findings of fact” that offer sweeping generalizations. For example, in Finding 71, Walker opines “that having both a male and a female parent does not increase the likelihood that a child will be well-adjusted.” The truth, of course, is that every human being has a male and a female parent. The difference parents make when they are the biological parents of their children, when they marry, and when they stay together to raise those children is an axiom in the sociological literature.
 

On measurement after measurement, children raised by their married, biological parents do better than children raised in other household situations. To name just a few significant advantages, they do better in terms of educational achievement, avoidance of delinquency and out-of-wedlock childbearing, and adult relationship stability.
 

The research on the advantages of the two-parent, opposite-sex married home is copious. But frank analysts admit that the novelty of same-sex households with children — and the lack of well-designed, long-term studies of these households — prohibits drawing final conclusions about whether, and how much, these advantages apply relative to same-sex parenting.
 

Walker’s highly selective sourcing leaps over this barrier. The same is true for his lack of nuanced consideration of morality, history and the law. At the end of the day, what these factors underscore is that legislatures — and the people — are the bodies charged by our system of government to examine arguments and weigh all the evidence in light of experience.
 

Walker seeks to substitute his weeks in the library for the centuries of living that inform the wisdom of the masses. If his landmark ruling stands, it will be a monument to the ruling elite’s arrogant ambition to frustrate the will and the wisdom of the people.

Charles A. Donovan is senior research fellow in the DeVos Center on Religion and Civil Society at The Heritage Foundation.

About the Author

Chuck Donovan Senior Research Fellow
DeVos Center for Religion and Civil Society

First appeared in Philly.com