The Future of Same-Sex Marriage

David Cole used his NYRblog space to post an analysis of United States District Court Judge Vaughan Walker's 136-page decision, ruling that the Proposition 8 bar on same-sex marriage is unconstitutional. When a decision runs to such considerable length, a summarizing analysis can be very useful; and what is particularly interesting was how this analysis tries to emphasize the distinction between arguments based on fact and arguments based on law. Cole felt this distinction was important, because he anticipates that this case will eventually come before the Supreme Court, which is now so ideologically polarized that the final decision would probably be determined by Justice Anthony Kennedy.

This was certainly a clever strategy on Cole's part. However, here in San Francisco (which is basically the eye of the hurricane) there has been considerable attention to the question of whether or not the case would actually get to the Supreme Court. The Proposition 8 supporters were already making their plans before Walker handed down his verdict. However, there is a good chance that one reason for Walker's decision running to 136 pages is that he put a lot of effort into making it "appeal-proof." This does not guarantee that the case will not escalate to the Circuit Court of Appeals; but it is interesting that Cole should have overlooked this particular strategy behind the ruling, which was based more on rhetoric than on the nuts and bolts of legal argumentation. Cole further overlooked the extent to which Walker prepared for an eventual Supreme Court decision by relating his own ruling to a host of Kennedy's documented decisions, another significant rhetorical element of his text.

The problem with Cole's piece is that he is trying to think objectively about an issue that is about as removed from objectivity as one can get. Cole goes so far as to declare:

Facts are, after all, the most powerful antidote to prejudice, fear, and stereotype.

This is naive on at least two counts. One of those counts has now surfaced in a comment to Cole's post and describes both briefly and clearly just how elusive the concept of "fact" is in this particular case. (The crux of the argument is that it is not enough to have data; one must also understand the contextual role played by the source of any data points.) The other count is that passionately held beliefs are rarely swayed by facts, however secure those facts may be; and faith-based beliefs are probably the firmest in such passionate adherence. Cole has basically fallen into the same trap that Bertolt Brecht concocted for Galileo, the belief that the judges of the Inquisition would pardon him once they examined his data.

What is most important about the progress of this case is that Walker has done all he could to keep those passions out of the argument. However admirably he may have succeeded, the case is now out of his hands. Cole should have known better than to assume that the subsequent future of gay marriage will now just be a matter of "facts" (whatever he takes that word to mean).