Why Judge Walker's Questions Are Important

Fellow Bilerico contributor Nan Hunter, a law professor at Georgetown University Law Center in Washington, D.C., and Legal Scholarship Director at the Williams Institute on Sexual Orientation Law and Policy at UCLA Law School, has a thoughtful post on The Bilerico Project that looks at the issues raised by Judge Walker to the litigants in Perry v. Schwarzenegger. While the outcome of the case is yet to be known, the evidence presented and the scope of the analysis looks to be the most comprehensive ever in a gay rights case and Nan predicts that the decision will be a "blockbuster." The questions posed by Judge Walker can be found here. Wherever Judge Walker is going on this case, the amount of evidence presented will make it difficult for an appellate court to overturn Walker's findings of fact since deference is always given to the trial court's conclusions unless clearly not supported by the facts. Here are highlights from some of Nan's analysis of matters to date in this important case:
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[I]if the questions are any indication, the Walker opinion will be a blockbuster, at least in terms of its scope, depth and detail. Court decisions generally take an analysis far enough to resolve the particular issues presented, but no farther. But from the beginning of this case, Judge Walker has indicated a willingness to dig deeper, by forcing both sides - plaintiffs and defendants initially both resisted the demand for extensive evidence on the ground that it was unnecessary - to come up with evidentiary support for the kinds of quasi-philosophical arguments that make constitutional law so fascinating.
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The judge's questions to the defendants press them, in various ways, on why allowing same-sex couples to marry should be such a big deal under the law: What is the evidence of negative social consequences? What is the magnitude of those consequences? What is the evidence that "same-sex marriage is a drastic or far-reaching change to the institution of marriage?" Except for fertility, how are same-sex couples different from opposite-sex couples vis-a-vis marriage? Why is the "deinstitutionalization" of marriage bad? To the extent that moral disapproval of homosexuality is at the bottom of this, how is that different from discrimination?
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One of Judge Walker's concerns gives me some apprehension: he seems to have been drawn into what I consider to be the deadend of thinking that immutability has any constitutional significance. Thus these questions to both sides: "What does it mean to have a 'choice' in one's sexual orientation?" "What are the constitutional consequences if the evidence shows that sexual orientation is immutable for men but not women? Must gay men and lesbians be treated identically under the Equal Protection Clause?" Note to Judge re: that last question: have you ever heard of sex discrimination?
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And then, my absolute, all-time favorite question that I have ever seen a judge ask: "Assume that the evidence shows that sexual orientation is socially constructed. Assume further than the evidence shows Proposition 8 assumes the existence of sexual orientation as a stable category. What bearing if any do these facts have on the constitutionality of Proposition 8?"
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Maybe I could suggest some reading...