"Judge Walker used his finding of fact that same-sex marriage has no downside to argue that it is irrational to fear a downside from a quick change to same-sex marriage, even if it is a significant change:...
...Whatever your views of same-sex marriage — or Judge Walker’s decision as a whole — I think this particular part of the analysis is pretty weak. First, the idea that same-sex marriage is not a significant social change strikes me as plainly incorrect. This is one of the more significant questions of social policy of our time: Whether you think it’s the greatest advance for civil rights in America or the end of the world, it seems pretty clear that it’s a big deal.
Second, Judge Walker’s reliance on his factual findings to defeat the argument about the pace of social change seems to miss the point. The claim about sweeping social change is an an ex ante argument about uncertainty. Predicting the future is tricky business, the argument runs. Views of enlightened social policy can change, and our perspective today may or may not seem right tomorrow. For that reason, we should proceed cautiously in changing social institutions to avoid errors that may be hard to correct. Whether this is a valid constitutional argument or not, it seems odd to respond to it by making a factual finding about what the future will be like and then saying that the announced factual findings make the concern irrational. It misses the entire argument, which is about our knowledge-uncertainty, by trying to make it a matter of the judge’s power to find facts. (I’m also unsure about whether it makes sense to say that it’s not rational for voters to have had a concern in November 2008 because evidence at a long trial in 2010 persuades a judge in 2010 that the concern is not justified. Given that this evidence wasn’t presented to the voters, as far as I know, were the voters irrational for their failure to understand the situation as clearly as Judge Walker?)
Of course, there are problems with automatically deferring to concerns about rapid social change. If taken too far, it would always lock in the status quo as automatically rational. But whatever the best answer for when concerns about the pace of social change are rational for the purposes of the rational basis test, I don’t think Judge Walker’s opinion offered a persuasive response here...
volokh.com |
