Don't Forget the Two Republican Judges Who Helped Save Same-Sex Marriage

On the West Coast, it was the now-retired U.S. District Judge Vaughn Walker, an appointee of George H.W. Bush, who first struck down Proposition 8 -- and also exposed the paucity of the arguments once made on its behalf. At one point during the Proposition 8 trial, without a trace of irony, Judge Walker asked Charles Cooper, the lead attorney opposed to same-sex marriage: "Seven million Californians, 70 judges, and this long history that you described. Why did you present but one witness on the subject?" Cooper had no good answer. He still doesn't.

In his 138-page ruling in August 2010 declaring California's same-sex marriage ban unconstitutional, Judge Walker focused on the lack of evidence supporting the initiative. For example, he wrote:

At oral argument on proponents' motion for summary judgment, the court posed to proponents' counsel the assumption that "the state's interest in marriage is procreative" and inquired how permitting same-sex marriage impairs or adversely affects that interest. Counsel replied that the inquiry was "not the legally relevant question," but when pressed for an answer, counsel replied: "Your honor, my answer is: I don't know. I don't know." Despite this response, proponents in their trial brief promised to "demonstrate that redefining marriage to encompass same-sex relationships" would effect some twenty-three specific harmful consequences.

At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn's testimony is addressed at length hereafter; suffice it to say that he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate. During closing arguments, proponents again focused on the contention that "responsible procreation is really at the heart of society's interest in regulating marriage." When asked to identify the evidence at trial that supported this contention, proponents' counsel replied, "you don't have to have evidence of this point." (citations omitted by me).

And then Judge Walker went to the core of the matter:

Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation and, because of their relationship to one another, Proposition 8 targets them specifically due to sex. Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs' equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

After he issued his ruling, as if confirming the points he had made about discrimination toward gays, Judge Walker himself was the subject of a despicable motion (which promptly failed) accusing him of judicial bias because he is gay and did not disclose to the parties the fact that he has had a longtime partner. Last February, the 9th U.S. Circuit Court of Appeals affirmed-- but significantly narrowed-- the scope of Judge Walker's ruling. In so doing, the federal appeals court adopted many of the factual findings Judge Walker noted in his opinion.


Although both men have played an enormous role in shaping the legal and political history of these two cases, and thus the history of same-sex marriage itself, it is unlikely that the work of either will be identified (much less discussed) during oral arguments next week. Unfortunately, there is only one former trial judge on the current Court -- Justice Sonia Sotomayor, who presided in New York. The rest of the justices rarely express interest in the trial record, especially where, as here, the core questions are ones of constitutional law.

But before we all move on to whatever comes next for same-sex marriage in America, we ought to pause to remember what has come before. Two Republican judges, two senior-status members of the federal judiciary, directly confronted one of the most divisive social issues of our time. They issued clear and direct rulings that swept away one myth after another about same-sex marriage and the legislative and societal rationales against it. And, in doing so, they gave constitutional cover to the executive branch to alter its course.

The Supreme Court may disagree with the assessments of Judge Tauro and Judge Walker -- at least three justices in Washington almost certainly will -- but that won't change what we already have seen with our own eyes. Judge Tauro explained why the DOMA is indefensible. Judge Walker explained why Proposition 8 is unjust and unequal. Each in his own way did, in other words, precisely what we hope and expect our life-tenured federal judges to do when the whims and caprices of the majority are turned loose upon a distinct and vulnerable minority.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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