Prop 8 & the Rule of Facts

How Not to Settle the Gay Marriage Question

One of the many ways the Constitution’s framers showed their collective wisdom was by embedding the rule of law into the very framework of our system of government. Judicial review of popularly enacted laws keeps the majority accountable to underlying constitutional principles. Of course, one person’s core constitutional safeguard is another’s judicial activism run amok. And so, in a range of hot-button “culture war” cases, lower courts have tried to steer clear of the dreaded “judicial activist” label by shifting their analysis from the constitutional principles themselves to the facts through which the principles may be invoked. At times these days, the rule of law looks more like the rule of facts.

Facts were certainly the unmistakable focus of Judge Vaughn Walker’s recent ruling in Perry v. Schwarzenegger. In striking down Proposition 8, the California law limiting valid marriage to that between “a man and a woman,” Walker’s 136-page opinion devoted a mere 26 pages to legal analysis, while 100 were spent reciting and evaluating the evidence presented at trial. For a judge looking to transcend the ideological labels that often attach to high-profile cases, this is an understandable strategy. And indeed, Judge Walker’s work was quickly praised by many as “a very careful analysis,” “meticulously crafted,” a “comprehensive, detailed decision.” Yet a constitutional analysis of same-sex marriage is not an obvious fit for an evidentiary trial, which is more generally associated with such questions as whether driver error or brake failure caused a traffic accident.

Consider the eighty findings of fact made by Judge Walker, many of them far more speculative than the usual “plaintiff drove his car too fast on wet pavement” variety. Given the court’s eventual conclusion that a ban on same-sex marriage lacks a rational basis, the factual findings needed to show that same-sex marriage harms no legitimate state interest. This was a tall order, and Walker marshaled the facts aggressively—and, critics say, overconfidently. Some of his fact findings come across as premature, portraying contested and unverified issues as conclusively settled. See, for example, no. 55 ("Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage, or otherwise affect the stability of opposite-sex marriages"); no. 70 ("The gender of a child's parent is not a factor in a child's adjustment"); and no. 71 ("Having both a male and a female parent does not increase the likelihood that a child will be well-adjusted").

Such uncertain “facts” form a slippery basis for judgment. But far more problematically, the very act of using facts to resolve deep cultural divisions effectively discards many of the weightier questions that make such issues worthy of deep societal reflection in the first place. Significantly, unlike many political arguments for and against same-sex marriage, Walker’s constitutional mandate does not emanate primarily from our society’s understanding of marriage or from some broad moral narrative. Instead, it takes shape from the tallying of “harms.” The logic goes like this: If extending marriage to same-sex couples does not cause a harm demonstrable through evidence in court, then same-sex marriage must be allowed, since the harms to gays and lesbians—both psychological and, in states that lack comprehensive civil-union statutes, material—are readily discernible. And so the debate about same-sex marriage is over, summarily ended by judicial fiat.

Harms surely must be part of our conversation about marriage’s future; indeed, a wider awareness of the harms suffered by committed same-sex couples has likely fed growing public support for same-sex marriage. But the public conversation itself translates awkwardly, at best, into the courtroom, where evidentiary rules operate as a stringent filter, and outcomes turn on the strategies and competence of adversarial attorneys. In Perry v. Schwarzenegger, the attorneys defending Proposition 8 chose to call only two expert witnesses (against nine experts and eight lay witnesses called by their opponents), and both of them were deemed by the court to be lacking expertise in the fields about which they were testifying. Is it any wonder that Proposition 8 did not fare well in Walker’s analysis?

With current polling data showing support for same-sex marriage increasing dramatically in younger generations, it seems clear that same-sex marriage is coming in the United States. But the process by which it will arrive remains an open question. Political resolutions tend to reflect a broader set of concerns than do judicial ones, and while the political path can be frustratingly slow and messy, its capacity for nuance equips it to handle issues such as same-sex marriage better than our courts can. Same-sex marriage legislation was enacted in New Hampshire, for example, only after intensive negotiations over statutory language to protect religious freedom.

Judges decide cases; they designate winners and losers. Under the auspices of fact-finding, even a well-intentioned judge can send troubling signals about who the “losers” are in the battle over marriage. Consider Walker’s finding no. 77: “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” As support, the judge cites teachings from various Christian traditions, including the Catholic Church, that homosexual acts are sinful. For religious liberty advocates concerned about the Supreme Court’s recent decision that Christian student groups are not shielded by the First Amendment from the reach of a state university’s antidiscrimination policies, this finding was not reassuring.

More broadly, if courts are to be tasked with charting the course of society’s foundational institutions by tallying “harms,” it’s important to ask what we have lost in the process. The question “What is marriage?” may not lend itself to easy answers or evidentiary proofs, but it is an essential question, one that societies have been addressing for centuries. Citizens today disagree with the views of earlier eras, just as citizens even ten years from now will likely disagree with ours. The cultural and ultimately political processes by which the history of civil marriage continues to unfold is messy, halting, and frequently infuriating to participants of all ideological stripes. But replacing those processes with one judge’s evaluation of a few expert witnesses carries a cost. Courts have played a role in shaping civil marriage in past eras, particularly regarding interracial marriage, but not in redefining an element of marriage deemed nonnegotiable by a broad swath of society spanning many otherwise disparate historical eras.

The aggressiveness of Walker’s fact-finding is perhaps best reflected in his remarkably broad definition of marriage. Based on the trial testimony of a historian, the judge found that

marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.

Operating under that definition, Walker then found that “same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.”

Obviously, the question of whether same-sex couples are identical to opposite-sex ones in their ability to form successful marital unions depends on how we define marital unions. Since legislatures have rarely bothered to define marriage beyond its composite elements (notably, one man and one woman), this is not an inquiry that can be settled by a quick look at the law books. And since our society is still in the middle of an ongoing conversation over the nature of marriage, neither can it—or should it—be settled by the testimony of a single historian. When a judge takes a hotly contested definition of marriage and labels it a “finding of fact,” we have not discovered an ingenious end-run around the turmoil of our culture wars. We have simply witnessed another volley in those wars. Tempting as it may be, the rule of facts cannot escape the moral controversy enveloping the marriage debate. Pretending otherwise serves neither the long-range interests of same-sex marriage advocates nor the vitality of our political community.

Related: Sex, Religion & Prop 8, by Margaret O'Brien Steinfels; Bad Faith, by Robert K. Vischer

About the Author

Robert K. Vischer, a frequent contributor, is professor of law at the University of St. Thomas and the author of Conscience and the Common Good: Reclaiming the Space Between Person and State (Cambridge University Press).



Commenting Guidelines

  • All

"Marriage is the state recognition and approval of a couple's choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents."

Compare that statement to this statement, " Have you not heard from The Beginning that God created them male and female and for this reason a man shall leave his father and mother and be joined to his wife and the two shall become one flesh..."

Although the first statement does recognize that one of the elements for Marriage is that it is restricted to a couple, the second statement includes the necessary elements for Marriage. Only in a complementary relationship can two mature adults, one man and one woman, become one body, one spirit in Love, creating a new Family, which is the essence of Marriage.

Once you claim that the elements necessary to make a Marriage do not exist or are not necessary, Marriage is no longer Marriage. Based upon definition one, there are no restrictions on Marriage except that it be between a couple.

To claim that the definition of  Marriage discriminates because one of the elements of Marriage is that it must be complementary, is no different then claiming that Marriage discriminates because children or siblings or family members cannot marry.

Marriage equality already exists. All men and women must meet the same requirements to be Married. Our Constitution does not provide for establishing a separate personhood based upon sexual preferences. 



What I glean from Vischer's article is a certain sense of ambivalence and support for the description of Judge Walker's ruling as "overconfident". What I can't tell is whether it is because facts alone in the court of law are not sufficient, since the political workings of cultural issues in the court of public opinion is also necesary. Or because change emanating from the bench (even if it is upholding the law) is some type of judicial activism that again must be submitted to the approval and acceptance of the populace.

I am wondering if there is some other way for dissent and compromise to be enacted without cultural wars (or Vischer's legal analysis) resulting in winners and losers. Upholding the constitution ought to be a win for all. Protecting religious freedom ought to also be a win for the constitution for our country.

I recall the wording of the Roman Catholic church when it finally decided that Mormon baptisms, though seemingly worded precisely in trinitarian terms and celebrated with the formal elements of our christian rites, were in fact no longer to be considered valid. They went on to say that this decision was not meant to disparage or denigrate Mormons themselves, nor the good work they do, or that christians and mormons have done and can do in the future together.

I wonder if such a sentiment can also be placed into this issue so that the more perfect union that we seek as Americans is not confused or conflated with our definitions of marital unions.

Vischer speaks of an approach that focused on harms. He neglects to say that the legal approach necesitated this approach because the proponents of Prop 8 specifically made the claims (first) that same sex unions harmed opposite sex unions and society as a whole.

I too wish the approach had been less about defending marriage, an institution that is so inherently grafted despite its' trends and outcomes over the years, and more about celebrating the pursuit of that happiness in another form.

As a catholic, I understand the natural law approach that view marriage as a sacrament and embeds within it an understanding of procreation necessary for the human family. But I also know as fact that not all marriages, even those blessed in the church lead to that ideal. And I see no contradiction between maintaining my catholic beliefs and recognizing those facts.

Finally, Vischer rightly points to changes we have made in marriage law and perception such as the approval of interracial marriages. He does so to also underscore the point that even in this arrangement, the implicit sense that marriage was still heterosexually understood and (though less fleshed out) was still tied to procreation.

A more contemporary approach might be to look at interfaith marriages. Are these blessings or curses? Harms to one faith or another or the need to defend one marriage partner against another? Indeed not. In the Catholic church, the turn has been to respect the integrity of the faith of the non-catholic partner while making explicit what the catholic is still expected to be and do. The nuanced question in such matters is where is the sacramental bond in this marriage? Does it not involve a very real outreach and bond with something and someone different than catholic belief yet very REALLY not?

That too is a melding of fact and faith.

To be clear, race, ethnicity, or ancestry, does not change the essence of the inherent complementary nature of man and woman and thus interracial Marriages although some perceived them to be unconstitutional, were not unconstitutional, to begin with. The fact that there are some who do not respect or deny the essence of Marriage, does not change the essence of Marriage.

Much is made about same-sex marriages being devoid of “complementarity. “  This position usually if not always restricts that term to physical complementarity.

However, there are additional aspects to “complementarity”  that are relevant to humans:

“Supplying mutual needs or offsetting mutual lacks.”

“Completion; psychologically, the assimilation of an element which has previously been lacking and through which wholeness is attained.”

“The interrelation of reciprocity whereby one thing supplements or depends on the other. “ 

After 38 years in relationship with the same man I can attest to the validity of these aspects of complementarity.  I also submit that they are more critical to the long-term success of any marital relationship that the traditional physical aspects of “the parts.”



Only in a complementary relationship can two become one body AND one spirit in Love, for Love is not possessive, to begin with.

Complementary, yes.  Physically complementary:  not necessarily so.

Prop 8 deals with a secular treatment of marriage, not a religious one.  Defining marital unions is a secular matter in this case because it ultimately deals with secular benefits, rights and responsibilities.  Equal treatment under the law should result in a definition that does not incorporate religious biases but, rather, treatment in accord with Article 14 of the Constitution.  One can argue whether all 80 of Judge Walker's facts are facts per one's perspective, but the ultimate test will be whether the 9th Circuit and, most likely, the SCOTUS views them as facts vis a vis the legal acceptability of the judge's decision.

The question is whether these facts are relevant to the essence of Marriage. Marriage does not exist in order to affirm various types of sexual orientations or sexual relationships. Only in a complementary relationship can a man and a woman become united in Love , both in body and in spirit, creating a new Family, which is the essence of Marriage. If it is true that our Founding Fathers recognized from The Beginning the self-evident Truth that God Has endowed us with the unalienable Right to Life, Liberty, and the Pursuit of Happiness, then we can presume that our Founding Fathers understood the self-evident Truth from The Beginning that it is God Who Has endowed us with our complementary nature as male and female, and that Marriage is between a man and woman, who are united as husband and wife, creating a new Family. Marriage equality already exists since every person who is a man or a woman must meet the same requirements to be Married.

Who redefined marriage? Not Prop 8 judge: Look in the mirror, experts say

Those who promote the notion of complementarity have yet to respond to the stark fact that, as far as custom and religion are concerned, this concept reduces the defintion of personhood as it applies to marital eligibility to nothing more the possession of the appropriate physical equipage.

Personal identity is determined by more than one's anatomy.




How odd--a sign of the times, I guess--that a Roman Catholic insitution should show even a passing interest in reality (facts').  Until now, the church has always insisted that doctrine, whatever it is, must prevail.  Still, this 'complimentary' business is pure doctrine, and ignores the facts of same-sex relationships (including bearing and raising children). 

Essential to religious doctrine, at least as the Roman church has held it, is that everyone must adhere to it, regardless of their faith; the powers of the secular state must force it upon everyone.  On the other hand, we can be grateful that western secular governments do not permit the Roman church its traditional response to dissent:  mass murder for larger groups and torture and brutal execution for individuals.

The arguments of opponents of same-sex marriage in California, no different than anywhere else, suffered from being more or less ridiculous and unfounded assertions; they were doctrine and no more.  I can well see why you do not like evidentiary treatment of such issues.

Happily, the U.S. Constitution enshrines equality in treatment by government, and 'activist' judges over the centuries have insisted upon it, and not on your particular religious doctrines.  The 'nuances' of which you speak are no better than pandering to irrational prejudice. 

You sneer at some of Walkers findings of fact, as being 'premature...untested...unverified' when, on hand, they have been tested and verified in the other jurisdictions which have had same-sex marriage for years, and, on the other, were opposed only by doctrinal assurances for which the proponents of Proposition 8 admitted that had no evidence whatever.  Here's a bit more:  in respect of #55, that discounts the often-claimed harm to opposite-sex marriages.  I've been testing and verifying this for over thirty years by asking anyone (all heterosexuals) who claimed potential harm as how it would harm their own.  Every single one of them warmly assured me that legal allowance of same-sex relationships would have utterly no effect on their relationships present or future.  The 'harm' would occur to "other", unspecified heterosexuals.  You know what, I think they (and you) are lying.  Shame on you and on this pathetic excuse for a religion.

The "facts" and the "evidence" presented in this case are both entirely 100 percent irrrelevant.

The primary question before the court was the interpretation of the 14th Amendment, specifically, the rights included therein.  That is ENTIRELY a question of law.

The meaning of the language of the 14th Amendment of the United States Constitution does not and cannot depend upon or otherwise change according to the subjective intentions of a few voters promoting or otherwise voting on some state ballot initiative.

The 14th Amendment is what it is, and that is all it is.  And, contrary to what he thinks, some judge in California does not have the power to effectively amend the 14th Amendment here in Virginia by his arbitrary dictate based upon purely subjective "facts."

When individuals take a “what’s in it for me” approach to life, this is the kind of dilemma that arises. Perhaps we could focus our attention and actions on what is truly good for humanity.


Obviously there is a great range of views on this issue (like on many!) in the Church, and a great number of facets to the debate.  I'd be interested in hearing---particularly from those opposed to gay marriage---reactions to the following:


We American Catholics are used to living with multiple definitions of marriage.  Marriage within the Church is a sacrament, which overlaps with civil marriage.  Civil marriage carries with it a variety of benefits, expectations and obligations, and we're used to that as well.  We're used to treating our married Protestant, and Orthodox, and Jewish, and Muslim, and Buddhist, and Hindu friends and neighbors as, in fact, married---even though their marriages are not recognized sacramentally by our Church.  Increasingly, we're used to interfaith marriages as well as marriages that are not religious at all, but solely civil.


So, my question is:  given that wealth of experience, why and how would the civil authorities recognizing gay marriage be a major problem worth disputing by American Catholics (any more than civil recognition of other non-sacramental marriages)?

Gay marriage is coming, says the author, and he is no doubt right to think that it has best come on the basis of a broad social discussion and of deep philosophical insight. Meanwhile on the "factual" front it does seem clear that Catholic teaching has gravely harmed gays, nor has the Church shown any willingness to enter on the kind of discussion and philosophical reflection the author wishes.

I disagree with Visher.  His quibbling about what is "good" fact-finding as opposed to what is "uncertain" fact-finding is a distinction in search of a difference.

Judge Walker's decision on Prop 8 is just applying common legal standards.  The operative standard here, which Visher seems to want to ignore, is the 14th Amendment which provides for "equal protection under the law" to ALL Americans.  

An individual's or group's religious and cultural sensibilities about the sacrament of marriage are irrelevant.

This should not be a discussion about whose "facts" are better.  Walker's judgement is that the voters of California disregarded the rights of millions of their fellow citizens to live free from any religious or cultural bigotry imposed upon them by the state.

As is our way and custom, his judgement will have to stand the tests and rigors of the appellate process.  Any errors in his thinking and argument will be most certainly addressed on its journey to the US Supreme Court

The most relevant "fact" here is that Visher's right to speak and write about his opinion of the rightful "nature of marriage" as he does here in this journal, or any of his constitutional rights, should never be put up for a vote where partisan, religious or cultural beliefs and prejudices hold sway.

Visher needs to embrace the wisdom of the Founders to free us from "any tyranny over the mind of man."

Instead of worrying about "fact-finding," Visher should concentrate on elucidating for the public a better understanding of what is meant by the constitutionally protected right to equal protection as inscribed in the 14th Amendment to "Life, Liberty and the Pursuit of Happiness" for all citizens, not just the majority heterosexuals.

Thoughtful piece.  Thanks.


That such an important issue can be decided either by one person, in a single decision, or by society as a whole, acting at length through the political process, seems unfortunate, perhaps something that somehow needs remedying.  Perhaps not.  Courts seem everywhere to be extending their reach, becoming a second legislature.  Is that an undesirable trend?  Is it reversible?


Also, of course, and probably more important, it's very good to ask, as you do, whether courts should have the power to upset centuries, not to say millenia, of social custom.  Even if a long-established social custom's time has come, it seems far better to move away from it gradually and carefully, rather than to force the issue suddenly.  Courts are capable only of acting suddenly, dictating a single predetermined course of action.  Gradual change is far more likely, I'd think, to produce organic change, allowing for pragmatic experimentation, for taking a chance on false starts and blind alleys, and for learning as we go and correcting our mistakes, whereas abruptly forced change is almost certain, in its two-dimensional rigidity, to make serious mistakes, cause significant social ruptures, and lead to lasting bitterness.












Add new comment

You may login with your assigned e-mail address.
The password field is case sensitive.

Or log in with...

Add new comment