Prop 8 Judge: Legally Right, Morally Wrong!

In his stunningly unsurprising and entirely predictable ruling handed down yesterday, U.S. District Court Judge Vaughn Walker ruled Prop 8 unconstitutional.  The popular ballot initiative, which was passed by a 52% majority of California voters in 2008, amended the state constitution to provide that “only marriage between a man and a woman is valid or recognized in California.”    

Judge Walker’ opinion, taken together with last month’s overturning of the Defense of Marriage Act by a federal judge in Boston and the growing number of states that have already legalized gay marriage, will add strength to the gay marriage movement throughout the country.  This issue, of necessity, will ultimately come before the United States Supreme Court.  Within two to four years from now, I believe that the majority of Justices will rule that same-sex marriage must be granted the same constitutional protections as traditional marriage.     

Especially over the next few days, most political and religious conservatives, including evangelical Christians, will paint Judge Walker’s opinion as faulty, wrong, morally bankrupt, cataclysmic, or worse.  Many of the talking heads will rail against this opinion as yet another example of a liberal and unrestrained judiciary run amok (although they will conveniently forget that Walker was originally nominated to the Court by none other than Ronald Reagan).  Some will even argue that Judge Walker’s sexual orientation (yes, he is gay) influenced his judgment in this case and that the only reason that he ruled as he did is because he is a homosexual man.  However, before one automatically concludes that Judge Walker’s “gayness” prevented him from rendering an impartial verdict, we should ask ourselves if we would feel the same way if the judge had ruled in favor of Prop 8 and he or she happened to be a conservative Southern Baptist.  Would we question a Christian judge’s impartiality if he or she would have upheld Proposition 8’s traditional definition of marriage?  You can be the judge on that question.        

Before telling you why I think the judge was legally right, let me briefly tell you why I think he was morally wrong.  I readily admit that I approach this issue from a religious viewpoint.  I can do no other and I make no apologies for that.  You may vigorously disagree with my opinion, and I would defend your right to do so.  Feel free to comment (keep it civil) and let me know how you feel and what you believe, even if you differ from my perspective.  Quite simply, I believe that Scripture — both Old and New Testaments — is clear about God’s design and purpose for marriage.  Marriage is an institution from God, not from the state.  From the very beginning of creation, the LORD God brought a man and a woman together in the bonds of marriage.  This design and purpose of marriage — one man and one woman — was affirmed by Jesus in the New Testament when He said:     

Have you not read that He who created them from the beginning made them male and female, and said, “Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh?  So they are no longer two but one flesh.  What therefore God has joined together, let not man separate.”  Matthew 19:4-6           

 In addition to Jesus’ affirmation of marriage between one man and one woman, there are numerous passages of Scripture that clearly teach that homosexuality (which would include gay marriage) is contrary to God’s will.  However, regardless of what I believe the Bible teaches about homosexuality or gay marriage (or any other issue), I believe (and have written) that the Church and Christians must respond in grace to our gay friends, family, and neighbors (see here and here).   

Even though I dislike the outcome in this case, I can understand why Judge Walker issued the legal opinion that he did.  Judge Walker functioned both as judge and jury in this case, acting as the trier of fact and law.  As such, he listened to opening and closing arguments, weighed witness testimony, and received evidence pertinent to the case.  After reading and closely skimming this 138 page opinion, I believe Judge Walker, in large part, ruled in favor of gay marriage on the basis of the credibility, or lack thereof, of the witnesses called to testify before him in this case.     

Reading between the lines, Judge Walker thought that the two witnesses called to testify in favor of Prop 8 were loons (not necessarily a legal term).  In one of the most important landmark cases to be heard in federal court, why on earth would the proponents of traditional marriage call a total of two witnesses to testify to the constitutionality of the ballot initiative?  Any time that you call witnesses, you run the risk that the trier of fact (in this case Judge Walker) will find their credibility lacking.  When you only have two, you don’t have much margin for error. In this case, Judge Walker gave almost no weight to the testimony of David Blankenhorn, the founder and president of the Institute for American Values, who testified on behalf of Prop 8.  You know things will not go well for the proponents of traditional marriage when the Judge says this about one of only two witnesses for your cause:     

Plaintiffs objected to Blankenhorn’s qualification as an expert. For the reasons explained hereafter, Blankenhorn lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponents’ factual assertions. (Opinion, page 37) Blankenhorn’s opinions are not supported by reliable evidence or methodology and Blankenhorn failed to consider evidence contrary to his view in presenting his testimony. The court therefore finds the opinions of Blankenhorn to be unreliable and entitled to essentially no weight. (Opinion, page 49)             

Ouch!  The other pro-Prop 8 witness did not fare much better.  Judge Walker, in weighing the testimony of Kenneth P. Miller, a professor of government at Claremont McKenna College, who was called as an expert in American and California politics, concluded:           


Miller’s credibility was further undermined because the opinions he offered at trial were inconsistent with the opinions he expressed before he was retained as an expert. Specifically, Miller previously wrote that gays and lesbians, like other minorities, are vulnerable and powerless in the initiative process, see PX1869 (Challenge of Initiative Reform, 41 Santa Clara L Rev 1037 (2001) contradicting his trial testimony that gays and lesbians are not politically vulnerable with respect to the initiative process.  Miller admitted that at least some voters supported Proposition 8 based on anti-gay sentiment. (Opinion, page 53)    
For the foregoing reasons, the court finds that Miller’s opinions on gay and lesbian political power are entitled to little weight and only to the extent they are amply supported by reliable evidence. (Opinion, page 54)   

Not only did Judge Walker find the two pro-Prop 8 witnesses to have little to no credibility, he found the 17 pro-gay marriage witnesses to be credible:       

Having observed and considered the testimony presented, the court concludes that plaintiffs’ lay witnesses provided credible testimony . . . (Opinion, page 25)       

Plaintiffs called nine expert witnesses. As the education and experience of each expert show, plaintiffs’ experts were amply qualified to offer opinion testimony on the subjects identified.  Moreover, the experts’ demeanor and responsiveness showed their comfort with the subjects of their expertise. For those reasons, the court finds that each of plaintiffs’ proffered experts offered credible opinion testimony on the subjects identified. (Opinion, page 28)     

 The proponents of traditional marriage will no doubt appeal this ruling to the Ninth Circuit Court of Appeals, the nation’s most liberal Appellate Court.  After a fast-track hearing, this case is most certainly headed for the United States Supreme Court.  On appeal, the higher courts will almost always accept the findings of fact from the trial court.  Judge Walker has done a masterful job in crafting his opinion in such a way that the Appellate Court or the Supreme Court will not likely even question, much less reject, his findings of fact, including his conclusions regarding the credibility of witnesses.       

 Within the next few years, gay marriage will enjoy all the rights and privileges now afforded to traditional marriage.  Many will look back and thank Judge Walker and the Prop 8 case for pushing same-sex marriage over the finish line.  Why did Judge Walker rule the way he did?  Because of the witnesses.  Whether you find yourself in a federal court defending traditional marriage or you find yourself in the court of public opinion defending your reputation, Credible Witnesses can ultimately make or break your case!    






4 comments for “Prop 8 Judge: Legally Right, Morally Wrong!

  1. K Gray
    August 9, 2010 at 3:01 PM

    First time commenter here. Please excuse the length.

    IMO this opinion strikes beyond marriage to gender itself. Judge Walker outright rejects any thought that genders bring anything different to marriage:

    “Gender no longer forms an essential part of marriage;….”

    “…genders are irrelevant to childrens’ developmental outcomes.”

    Prop. 8 mandates that men and women be treated differently “based only on antiquated and discredited notions of gender.”

    “The evidence shows conclusively that moral and religious views form the only basis for a belief that same sex couples are different from opposite sex couples.” (Except for that other basis, their genders!)

    Second, the poor state of the evidence seems due to a stacked deck.

    At the outset, the State of California would not defend Prop. 8. Attorney General Jerry Brown (running for governor) refused to represent the majority of citizens who passed it. Instead, the State conceded that Prop. 8 is unconstitutional, bolstering the plaintiffs’ cause.

    Why only two witnesses? Prop. 8 proponents (and voters) were so vilified and intimidated — including by Judge Walker’s unusual decisions to broadcast the trial and allow discovery of private emails, both reversed on appeal before trial — that most of their witnesses withdrew due to threats against them. (Their affidavits are on record). Even people who merely donated to Prop. 8’s campaign were ‘outed’ and vilified; some even lost their jobs. Maybe intimidation wasn’t the only factor, but it was a real one.

    Third, Judge Walker put the voters’ motives on trial by proxy. The evidence included Prop. 8 campaign ads, organizations’ emails and church materials — even churches’ position statements.. Do we want voting motives on full trial, via campaign ads? Yeeesh.

    With this setup, Judge Walker then looked at the evidence, disregarded proponents’ expert, and conclusively decided broad societal issues of gender, marriage, humanity, sexual orientation, attachment, parenting, tradition, cultural superiority, stigmas, religion, state interest and voters’ motive. IMO they are way overly broad, to the point of impartiality.

    The spiritual lesson of ‘credible witnesses’ is good. These guys had no idea what they were in for when they started promoting Prop. 8. Maybe we don’t either.

    • August 9, 2010 at 3:32 PM


      Just a quick reply as I am heading out to a meeting the rest of the day and won’t be able to respond until later tonight. First, thanks for stopping by and reading and taking the time to comment. You don’t need to apologize for the length — after all I was an attorney and used to get paid by the word! At the outset, let me reiterate that I believe that this opinion, from a moral and religious viewpoint, was most definitely wrong. However, I understand (not necessarily agree with) how Judge Walker arrived at his decision. Another judge may have concluded differently. And while there is no question that witnesses were intimidated (prior to trial), the evidence and witness testimony that was presented at trial will most likely not be questioned on appeal, either by the 9th Circuit or the Supreme Court.

      I believe that you may be right in your assessments regarding this entire case, particularly what the proponents of Prop 8 were up against. Unfortunately, Judge Walker has written an opinion in such a way that it will be hard to challenge his findings of fact. I fully expect that Justice Kennedy will be persuaded by these facts to side with the four most liberal members of the Supreme Court to uphold Walker’s decision. We’ll know in a few years. Thanks again for reading and commenting. Look forward t continuing the dialogue. God bless,


  2. K Gray
    August 10, 2010 at 7:43 AM

    Thanks especially for citing Scripture.

    • August 10, 2010 at 4:37 PM


      I’m sorry that I was in a rush yesterday when I replied to your original comment. Although I was addressing the legal aspects of this case, I may not have been as clear as I could have been regarding the Biblical injunction against homosexuality. The Old Testament (see Genesis 1:26-28, 2:18-24, 19:4-7; Leviticus 18:22, 20:13) and the New Testament (see Matt. 19:3-6; John 2:1-11; Romans 1:18-32; 1 Corinthians 6:9-11; 1 Timothy 1:8-11; Jude 7; Revelation 22:15) are, I believe, clear on the immorality of homosexuality. Having heard Ted Olson, one of the attorneys for the opponents of Prop 8, inteviewed by Chris Wallace on Fox News Sunday, I can understand the Judge’s ruling in this case, even if I don’t like the outcome. Thanks again for stopping by and commenting. God bless,


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