Ed Whelan’s Amicus Brief in the Prop 8 case
Ed Whelan filed an amicus brief in the Prop 8 case, on behalf of the Ethics and Public Policy Center. RRR’s have seen some of his arguments already in this space. He explodes the contention that the Prop 8 defense team “didn’t provide any evidence.” And in fact shows pretty clearly that Judge Walker echoed the plaintiffs PR arguments. But let me cut directly to Whelan’s bottom line:
What can possibly account for the remarkable series of errors discussed in this brief? Simple incompetence is not a plausible explanation. For starters, the district judge is very experienced and generally well regarded. Further, the thoroughly one-sided nature of the errors is inconsistent with the random pattern that incompetence would generate.
We respectfully submit that the inescapable explanation for the district judge’s performance in this case is that he harbors a deep-seated animus against traditional marriage and that he has been unwilling or unable to contain his animus. That understanding ought to inform this Court’s entire review of the district judge’s ruling.
What leads up to this conclusion is his analysis the Judge’s distortion of the record, distortions that just happened to favor the plaintiffs. For example:
Among the district judge’s many baseless contentions is his claim that “the evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive effect, on the institution of marriage.” ER160-161 (emphasis added). For starters, such an assertion is simply beyond the capacity of the social sciences to sustain….
Further, as proponents demonstrate, the district judge’s extravagant claim rests almost entirely on the testimony of a single expert witness for plaintiffs, Professor Letitia Peplau, who specifically disclaimed that her limited statistics on marriage and divorce rates in Massachusetts were “necessarily serious indicators of anything.” ER241:1-2. The district judge’s claim also simply ignores the admission by another of plaintiffs’ expert witnesses, Professor Nancy Cott, that it is “impossible” to know what the consequences of same-sex marriage would be because “no one predicts the future that accurately.” ER226:17-22. And the district judge’s claim also fails to acknowledge, much less address, evidence in the record about negative trends in the Netherlands — on marriage rates and nonmarital childrearing — that were exacerbated in the aftermath of that country’s adoption of same-sex marriage. See Proponents’ Brief at 101-102.
The district judge’s misplaced certitude about the long-term impact of same-sex marriage stands in sharp contrast to the modest acknowledgment by proponents’ counsel at the summary-judgment hearing in October 2009 that he didn’t “know” what the long-term impact of same-sex marriage would be. In his opinion, the district judge clips counsel’s comment out of context in a manner that distorts his message by falsely suggesting that counsel’s epistemological modesty amounted to some sort of concession that same-sex marriage did not pose any significant potential harmful effects:
At oral argument on proponents’ motion for summary judgment, the court posed to proponents’ counsel the assumption that “the state’s interest in marriage is procreative” and inquired how permitting same-sex marriage impairs or adversely affects that interest. Counsel replied that the inquiry was “not the legally relevant question,” but when pressed for an answer, counsel replied: Your honor, my answer is: I don’t know. I don’t know.
Despite this response, proponents in their trial brief promised to “demonstrate that redefining marriage to encompass same-sex relationships” would effect some twenty-three specific harmful consequences.
ER44 (emphasis added; citations omitted). Here again, the district judge’s distortion mirrors plaintiffs’ own distortion in their public-relations messaging.