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The Flaws in Judge Walker’s Prop 8 Dismissal Decision

Dennis Byrne 10 August 2010 6 Comments

When it comes to making laws, sociologists, psychologists, social psychologists and anthropologists now trump American citizens.

That’s basically what happened last week when Vaughn R. Walker, U.S. district chief judge in San Francisco, declared unconstitutional Proposition 8—the voter-approved referendum by which California citizens declared marriage to be a union of a man and a woman.

After carefully weighing the testimony of a bevy of social scientists, Walker found that the idea of heterosexual marriage is based on “antiquated and discredited notions of gender.” And that arguments against gay marriage are “nothing more than tautologies.”

And: “Proposition 8…enshrines in the California Constitution a gender restriction that

the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.” [Emphasis added.]

The “evidence” is testimony by social scientists who view marriage to be a vestige of a time when men’s and women’s “roles” were defined by their “gender.” Liberals would have us believe that this is more “settled science,” just like they insist that global warming is man-made and abortions play no role in breast cancer.

Other experts disagree with Walker’s view of marriage. But, a bunch of them that had been scheduled to testify withdrew because they feared for their personal safety. As for their chief expert witness, David Blankenhorn, Walker threw out his entire testimony as “inadmissible” and to be “given essentially no weight.”

According to liberal bloggers and commentators, Blankenhorn’s credibility disintegrated under seven hours of testimony; I wasn’t there, so perhaps that was the case. Walker ended up ruling out Blankenhorn as an “expert” witness because he, according to the judge, “lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of … factual assertions [by proponents of Proposition 8].”

According to Walker, one of the things that disqualified Blankenhorn as an expert opinion witness was his alleged failure to do original research and publish in a peer-reviewed journal. That’s puzzling for two reasons:

1. Blankenhorn is founder and president of the Institute for American Values and the author of two important and best-selling books, including Fatherless in America. He has spent a lifetime studying marriage, fatherhood and family structure, is in demand as a speaker and—not that it matters—is thoughtful and not at all like the stereotype that many gay activists accuse their opponents of being. He, in essence, conducts his research and assembles knowledge by, for example, relying on studies from other experts. But for Walker, that’s not enough.

2. And yet, despite Walker’s perspective of Blankenhorn as something of an unqualified aggregator, the judge qualified as an expert someone from the other side whose “research” was remarkably like Blankenhorn’s. George Chauncey, the judge himself noted in his opinion, is a history professor specializing in “social history, especially as it relates to gays and lesbians.” While he has “authored or edited books on the subject of gay and lesbian history,” as Walker put it, he—like Blankenhorn—“relies on government records, interview, diaries, films and advertisements along with studies by other historians and scholars in conducting his research.”
I wonder how higher courts will view such discrepancies in Walker’s decision when the case is appealed.

Walker’s 126-page decision is a thorough elucidation of the testimony of expert witnesses opposing Proposition 8. Liberal commentators have hailed the decision because its “evidence” supposedly destroys all the “myths” raised by opponents of gay marriage, as if it were the last word.
I don’t think so. Walker’s opinion also reads as if he had already decided. But more important, the decision is fundamentally based on the expert testimony of one side. In this, he wades into a contentious legal area: Who is an expert witness? Who is a purveyor of “junk science?” Deciding this is hard enough when trying to qualify experts in the “hard sciences,” such as medicine and engineering.

But it is enormously more difficult when trying to qualify social and behavioral science experts. Social science is indeed a “soft science,” despite the protestations of its practitioners. As a Russell Sage post graduate fellow in social science writing at the University of Wisconsin at Madison and the holder of a masters degree in urban affairs—consisting mostly of courses in the social sciences—I’ve seen the difficulty that social science encounters when its work seeks to claim the same degree of certitude as the physical and medical sciences.

Making it more difficult, is the fact that most social scientists consider themselves to be liberals, and as a result approach their work a leftward bias. This is not a science that can easily claim to be the last word, as Walker seems to argue. Especially when it is in a court of law.

When higher courts get this case, as they surely will, questions likely will arise about how Walker handled the definition of expert witnesses. Other, more central questions also will be raised, but higher courts have a way of avoiding the big issues if they can find a reason to overturn a case on a procedure issue, such as expert testimony.

However the higher courts decide, the question remains: How can a judge overrule the voters who have decided the issue in a referendum—a process that was fashioned early in the last century by liberal reformers who wanted to avoid these kinds of court dictates.

Walker’s explanation goes something like this: Social scientists know what they’re talking about; the public doesn’t. Here is how he rationalizes it, in his own words: “An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence.”

He’s saying that supporters of Proposition 8 have absolutely no support in evidence. Well, if you exclude just about everyone from the other side, as he has done, I suppose he’s right.


Dennis Byrne is a regular columnist for the Chicago Daily Observer


  • Ironman Carmichael said:

    Yes, how dare “social scientists” presume to know more about social science than the public (most of whom know the names of the Seven Dwarfs but not the name of their own senator)! How dare a surgeon claim to know more about medicine than the old woman down the street!

    Thing is, Dennis, people who claim that marriage has been one specific thing “for thousands of years” are already demonstrating their ignorance of social science. Also, a judge must decide a case based on the presented evidence, and all that Judge Walker got on the pro-Proposition 8 side was indeed myth. Also religious superstition, meaningless generalizations, and moral standards which heterosexuals themselves don’t live up to. And that from only two witnesses.

    Reality is not a matter of what people want to believe, even if they constitute a majority; majorities have been known to be wrong.

  • davisbarrett said:


    You have totally forgotten to mention that the establishment of an expert witness it outlined by precedent, which was clearly followed by Judge Walker in this case. Blankenship can be whatever he claims himself to be but, unlike the witnesses gladly standing in line for the opposition to Prop 8, Blankenship did not qualify under that precedent. EVERY expert witness from the opposition had degrees that applied to their fields, numerous books and papers, and authored many articles in PEER REVIEW papers that Blankenship had never done.

    Judge Walker did find some merit in Blankenship’s testimony when he admitted that Gays and Lesbians were submitted to treatment that qualifies them for EQUAL PROTECTION under the 14th Amendment of the United States Constitution and under “Section 1983″ aka “The Civil Rights Act of 1871″. So, he was actually good as a witness in testifying to the facts presented in the case, if only for the opposition. Sorry he didn’t follow with the bigotry and superstition you so apparently wish he did.

    I tell you what other initiatives have been accepted as FACT in the days of our Republic. First, that black Americans were property and second, that women were property. Both of those initiatives were defeated by the judiciary after much blood was spilled. But, of course, the blood that’s been spilled in this case (and since the inception, presentation, and voting on Prop 8) doesn’t matter too much because it’s only second-class citizens anyway.

    It’s a good thing you’re a sociologist, because you’d certainly not make a good attorney. If you’re so distraught by the results of the PROPONENTS failure to present their case, please do line up to be seen AND heard in the 9th District Circuit Court. Put your money where your mouth is.

    Finally, the “fears” of the Proponent’s witnesses were not founded and their failure to appear was further evidence of their lack of any plausible case whatsoever. I find it funny that the State of California acknowledged that the case before Judge Walker was indefensible, and those Proponents had to defend their own lies and falsehoods with people such as Blankenship. Where were the “real expert witnesses” such as yourself or are you just an “armchair apologist”?

  • spudbeach said:

    As Ronald Reagan said, “Facts are stubborn things.” As much as you might not like it, global warming is real, is caused by human actions, abortions do not cause breast cancer, and there is no basis for your complaint about Judge Walker ruling the way he did.

    Yes, George Chancey has written books, just like Blankenhorn. However, he has also written a whole bunch of refereed journal publications, and these publications, unlike books, are actually examined by experts in the subject before publication. Anyone can publish a book. Oh, and Chauncey actually has a doctoral degree in the field he was testifying in. Unlike Blankenhorn, whose _master’s_ degree was in the history of labor relationships in 19th century Britain.

    But that’s not all: Blankenhorn contradicted himself on cross examination:

    (That’s on page 48 of the opinion, if you’re following along!)

    So, we have an incompetent expert, who ruins his own case. And this is the best that the proponents of Prop 8 could find.

    There’s a simple reason for that: the facts are stubborn things, and they all point against Prop 8.

    I’m looking forward to seeing you rebut these arguments, as a sociologist, in open court under cross examination. It’ll be fun to watch!

  • Kyazu said:

    You’re a real comedian, Dennis. Where did you get these “evidences”-that you don’t ever mention in detail- against homosexuality from? Dick Hafer?

  • Randy King` said:

    The “Fact” is that everyone that testified for the plaintiffs had a horse in this race – including the “judge.” The APA had to re-release their “Facts” on same sex enthusiasts because they have no data to support the “Facts” they originally presented. The often quoted APA did declare that same sex attraction was not a choice, but prior to declaring this “Fact” they stated that there is no solid evidence that would allow them to make such a declaration of “Fact.”

    Biology is a science based on indisputable facts; and these facts stand in direct opposition to the ridiculous assertion of Perversion Activists like this pervert judge of yours.

  • Prop 8 Ruling Roundup II | The Foundry: Conservative Policy News. (author) said:

    […] every society in all the millennia until just a few years ago?Dennis Byrne, columnist, wrote in the Chicago Daily Observer:Walker’s 126-page decision is a thorough elucidation of the testimony of expert witnesses opposing […]

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