The Flaws in Judge Walker’s Prop 8 Dismissal Decision
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