Yesterday I made the point that Chief US District Judge Vaughn Walker, who declared California Prop. 8 to violate the U.S. Constitution, was trying a bit too hard to insulate his decison on appeal by engaging in fact finding and credibility determinations on what essentially are legal issues.

A similar view from Orin Kerr, writing at The Volokh Conspiracy:

The question is, how much will those factual findings matter on appeal?

If the Supreme Court agrees to hear the case, I don’t think the factual record will matter very much. I think that for three main reasons. First, the Justices will know that this case presents a defining moment for their respective tenures on the Court. This will be one of the biggest decisions of their careers, and its importance transcends a single trial before a single judge with a particular set of witnesses. These sorts of mega-big-picture cases tend rest less on the details of the factual record than other cases. Second, the Justices will certainly recognize … that … Judge Walker was trying to use his facts to make an argument designed to persuade the Justices to agree with him. For better or worse, I suspect a majority of the Justices will respond to that dynamic by significantly discounting those facts.

The fact finding sought to establish that there is no legitimate societal difference between traditional marriage and gay marriage. In doing so, the Judge examined individual aspects of a marriage, and based on the testimony he credited, determined that there were no substantial differences, hence, no legitimate state interest in maintaining a distinction.

These fact findings have heartened people like Dahlia Lithwick who writes:

It’s hard to read Judge Walker’s opinion without sensing that what really won out today was science, methodology, and hard work.

There is a certain lack of reality to Judge Walker’s fact finding, in that it deconstructed a traditional marriage to nothing more than its parts, ignoring thousands of years of history and its role in society.

The problem for supporters of the decision is that it is doubtful the majority of Justices on the U.S. Supreme Court will engage in such a deconstructionist approach.

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