Thursday, October 28, 2010

Strange Love

by Jacob Sullum

November 2010

In August a federal judge in San Francisco ruled that Proposition 8, California’s voter-approved ban on gay marriage, violates the 14th Amendment’s command that no state may “deny to any person within its jurisdiction the equal protection of the laws.” U.S. District Judge Vaughn Walker concluded that the ban’s justification was so weak that it failed even the “rational basis” test, the highly deferential standard used in equal protection cases that do not involve a fundamental right or a “suspect class” such as race (although he also argued that gay marriage bans implicate both).

In addition to social conservatives, critics of the decision included supporters of gay marriage who worry about the damage done by result-oriented jurisprudence. While I share their concerns, this objection to the equal protection argument for gay marriage no longer seems decisive to me.

For one thing, I’m not sure it’s possible to prevent a judge’s policy preferences from influencing his application of the law in a case like this. No doubt a judge who was more alarmed at the prospect of gay marriage would have reached a conclusion different from Walker’s. But wouldn’t that judge also be guilty of letting his social views shape his legal analysis?