Judge Walker: A Social Scientist

Judge Vaughn Walker, in deciding that California’s Proposition 8 outlawing homosexual marriage was unconstitutional, managed to: 1) override a majority vote; and 2) assume privilege and expertise to make sweeping conclusions over highly-divisive issues even social scientists cannot agree upon. I wish to concentrate on the role the Courts in a democratic society.

Judge Walker’s opinion is filled with dubious social science ‘facts’ he presupposes to be widely-accepted. Walker claims that evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes. Most legal experts predict the marriage issue will eventually reach the Supreme Court. If the Court decides to take the case, they would repeat the error in Roe v. Wade: namely, trying to remove a morally charged policy issue from the forums of democratic deliberation and resolve it according to the justices’ personal lights. Even many supporters of abortion now consider Roe a mistake. Short of any basis in the text or original understanding of the Constitution, Roe has become a symbol of the judicial usurpation vested in the people and their representatives. By short-circuiting the democratic process, Roe inflamed the culture war that has divided our nation and polarized our politics. Remember: judges should impartially interpret the law, not partially legislate it.