Federal District Court Judge Vaughan R. Walker made the right decision in the California marriage case yesterday–interestingly a decision (like Dred Scott) based on history more than on the law. Historians Nancy Cott and George Chauncey appear to have been extremely important in his decision, which you can read here. (Check out the citation of Antonin Scalia’s opinion in the 2003 the Lawrence v. Texas case to explain the judge’s reasoning, p. 63!)
The big lesson in this case appears to be–have a case and credible witnesses to back it up. Walker’s decision makes a great deal of the credentials and credibility of the plaintiff’s witnesses (those testifying against discrimination in marriage law) versus the absence of credentials or credibility in the two–two!–witnesses who appeared for the defense of marriage discrimination. (If you followed the case last winter, you’ll recall that there was a great deal of folderol about the pro-discrimination team fearing for their personal safety if they actually testified about their opinions. Please. They were defending a law the majority of California’s voters approved of just 14 months earlier, a law that supposedly reflected the will of the people. I tell ya, in this country we used to have civil rights foes who would go to the mat to preserve discrimination! These folks are just wimps.)
What possible strategy could the pro-discrimination team have had in mind in basically throwing their case? Did they just want to rush their appeal on up to the Roberts court? Will the Roberts court as constituted as of the beginning of October 2010 rule in favor of marriage discrimination? I suppose that will depend on the allegedly awesome politicking of Elena Kagan and whether or not she and others inclined to support marriage equality can persuade Anthony Kennedy to see the light of history. Even so–I’ve always seen John Roberts as more of a corporate hack, not of the curious “moral” ilk of Scalia and Clarence Thomas (and probably Samuel Alito). He seems to be a proud man, and one who can read the tea leaves of history. Would he really vote to support marriage discrimination?
What do you all think?