Do I Have to Read Judge Walker’s Opinion?

“Have you read Judge Walker’s opinion? Can you explain it to me?” A non-lawyer friend was calling, mid-afternoon, to ask about Judge Vaughn Walker’s decision today invalidating California’s Proposition 8, which had banned same-sex marriage.

“No, I haven’t read it,” I said. “I hadn’t even heard that the decision had been announced. But I knew it was supposed to come out today, and yes, I can tell you what it says and what result it reaches.”

Not that I’m especially prescient. Honestly, anyone who works in this business could do the same, couldn’t they? After all, they would know three things:

First, academics and judges have long since detached the equal protection clause (and the due process clause, and . . . ) from anything approximating the meaning and purpose it was thought by its enactors to have. They think that in doing this to the clause they’ve done a good or even necessary thing, of course, and maybe they have.  But they have done it.  Academics (both “originalists” and “nonoriginalists”) have done this by collapsing the clause into its underlying “principles,” abstractly understood. Judges have done it by dissolving the clause into a set of abstruse doctrines that talk obscurely about rationality, legitimate and illegitimate interests, levels of scrutiny, “suspect classifications,” and so forth. As a result, the clause has become a handy tool for judicial supervision of assorted political and cultural matters.

Second, elite culture in this country, including the academy and the mainstream media, is generally hostile to traditional judgments about family and sexual morality, and to practices and institutions that embody those judgments. Testimony from “experts” and studies that respectable academics will publish in respectable journals will usually reflect and convey that hostility.

Third, the life of a federal district judge is poorly compensated (relative to the earnings of a partner at a law firm, at least) and underappreciated. If a judge gets an opportunity to have a moment in the sun and make history in a popular cause, he or she is likely to take it. Hence the massive, meandering, self-important opinion of Judge John Jones in the Dover, PA “intelligent design” case. Judge Walker’s handling of the Prop 8 case, in which he tried to achieve media coverage of the trial proceedings, suggests that he was fully cognizant of the opportunity that had been given him.

And so you could predict the result. And if you’re in the business, you could write the opinion as well.

Actually, you have a couple of choices. There’s the “irrationality” option. Break down the exquisitely complicated matter of marriage into a few crude, instrumentally-framed goals or interests, and then say that the evidence (supplied by the aforementioned experts and studies) doesn’t show that the law is needed to serve those interests. People who think otherwise (including a majority of California voters, and most people in Western civilization over the last umpteen centuries) are not merely mistaken; they’re being, or have been, just plain irrational. Or you could go the “suspect classification” route by pointing out that the class burdened by the law has long been subjected to invidious discrimination. This explanation isn’t in the end much different, though, because it also hinges on a judgment that the all of the long accepted practices and distinctions have no justification. It wouldn’t hurt to give both explanations.

You could say all this succinctly, but given that the decision will receive lots of attention, it would probably be better to write a long, intricate opinion, so that commentators can praise you for your care and rigor. And if you want to show your open-mindedness, you might acknowledge that people could plausibly support a monopoly for traditional marriage on grounds of “religion” or “private morality.” So to say that there is no “rational basis” for the law is not necessarily to say that all these people are just crazy. But since the Constitution somewhere (where was it, exactly?) prohibits the law from being based on religiously-informed judgments or “private morality” (as opposed to the really good sort of non-private morality that supports, say, anti-discrimination laws), those sorts of reasons can’t serve to validate the law. And so, difficult and painful though it is to overrule the judgment the People . . . . Well, it’s not you: the Constitution makes you do it.

My non-lawyer friend’s question was asked as if there were something real and true in all this. Judge Walker discovered that Prop 8 violates the equal protection clause! It was almost as if the news were comparable to a report that, using the Hubble telescope, astronomers had discovered some previously unsuspected or at least unconfirmed galaxy in a distant cranny of the universe. No doubt lawyers and legal scholars will treat the matter in much the same way (though they will disagree on the meaning and reliability of the ostensible discovery) on the news shows tonight, and on the blogs. A generation ago, the Crits would have pointed out the “mystification” and “legitimation” that is going on here but, sadly, the Crits have pretty much long since lost their edge. (And most of them probably like this decision anyway, so why complain?)

I could watch the news shows and read the blogs tonight. I could spend the evening reading Judge Walker’s opinion. Or . . . I could watch the Padres versus the Dodgers, where the fix is not in, and there is genuine suspense about the outcome, and the umpires conscientiously try to enforce the rules that have been agreed upon, instead of making up their own rules.

At some point, I suppose, I’ll probably have to read Walker’s opinion. But can’t I put it off for a day or two?  Please?