Notes From Babel

“You don’t have to have evidence of this…”

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The whole “you don’t have to have evidence” flap is interesting for a few reasons. One is the misdirection and misrepresentation by Judge Walker, as Ed Whelan pointed out in this piece. Another, by extension, is the fact that there is, indeed evidence of the procreative purpose. One of the best kinds of evidence—judicially noticeable evidence, as it has been repeated throughout judicial opinions and historical and other well-established works.

But the strongest argument is that even despite what the current social science academy and relatively young and shallow data set might establish, there is a centuries-old recognized presumption that marriage does in fact aid, promote, stabilize, and secure the continued procreation and child-rearing within the population.  New data—even were it actually scientific data rather than the observations of social scientists—cannot overcome a settled, centuries-old understanding.  The law does not expect that the people maintain a perfect one-to-one correlation with the latest in scientific understanding.  The “laboratory of democracy” metaphor does not apply here.  See, e.g., Everett v. Paschall, which I touched on in my initial thoughts on the Perry decision.

Thus, new social science data is a nonstarter unless we are talking about a non-fundamental right. Instead, what plaintiffs would have had to show was animus—that the voters didn’t actually care primarily about preserving marriage for procreative or other legitimate purposes, but instead because they want to injure homosexuals.  Justice Kennedy did hold for the Court in Romer v. Evans that Coloradans expressed “animus” in enacting its constitutional amendment to strike down municipal affirmative action laws favoring homosexuals.  But the Court based that finding on the fact the discrimination was “unusual” and “unprecedented.”  A law enshrining the traditional definition of marriage certainly does not fit that standard.

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Written by Tim Kowal

September 18, 2010 at 11:23 am

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