Oct 15, 2009 by Bruce
Perry v. Schwarzenegger trial judge a disappointment so far
Well, lawyers Ted Olson and David Boies didn’t pick the California federal courts in which to file this lawsuit for no reason. And it appears their strategy will bear some fruit, at least in the early going of what will surely be a several year journey through the federal courts.
Federal District Court Judge Vaughn Walker has denied a motion from pro-marriage lawyers to dismiss the court challenge to traditional marriage. That denial was pretty much expected. What wasn’t expected were the judge’s statements during the hearing. If he’s being quoted accurately in the press, then he is certainly looking at the legal issues incorrectly.
First, Judge Walker apparently thinks that the U.S. Supreme Court’s past rulings have never limited the fundamental right to marry to opposite-sex couples. But that’s too cute of an argument, and not really worthy of a federal judge. The many Supreme Court cases concerning marriage all assume the definition of marriage to be what it has been for several millennia. One even went further and specifically addressed same-sex marriage, (which I addressed here). But Judge Walker apparently thinks that if the Supreme Court doesn’t specifically define a term in one of its opinions, than that term is open to being redefined later.
Second, Walker is reported to have said during the hearing that “Procreation doesn’t require marriage.” That means, most likely, that he’s refusing to see any basis for a state to protect its economic interests and promote a stable future citizenry by steering procreation into marriage.
Not an auspicious start for Judge Walker. Or for marriage, for that matter. But this is a marathon, not a sprint. The U.S. Supreme Court will ultimately decide this case one way or the other, short of a federal marriage amendment to the U.S. Constitution, that is.
