I am, of course, thoroughly delighted with the California federal court’s decision overturning Prop. 8 as unconstitutional under the due process and equal protection clauses, doubly so because the judge, Vaughn Walker, is a card-carrying conservative. I am also thoroughly delighted with the Massachusetts federal court’s ruling the DOMA is unconstitutional on grounds of states’ rights. However, I am a bit confused at what seems to be a contradiction between the two rulings. The Massachusetts case seems to claim that DOMA infringes on states’ rights to define marriage for themselves–that is, that federal law should not determine how states may define and regulate marriage. The California case, on the other hand, argues that the state’s decision on how to define and regulate marriage is wrong and violates federal law. Now, I thoroughly admit that IANAL and so there is likely a way that these two decisions can…er…cohabit. Thoughts?
UPDATE: I’m reading through the California decision instead of working on a pressing deadline…. it makes for great reading! There’s quite a bit that is essentially about how best to gauge the reliability of social science, and much of it picks specifically on David Blankenhorn, to wit:
24. Blankenhorn identified several manifestations of deinstitutionalization: out-of-wedlock childbearing, rising divorce rates, the rise of non-marital cohabitation, increasing use of assistive reproductive technologies and marriage for same-sex couples. Tr 2774:20-2775:23. To the extent Blankenhorn believes that same-sex marriage is both a cause and a symptom of deinstitutionalization, his opinion is tautological. Moreover, no credible evidence supports Blankenhorn’s conclusion that same-sex marriage could lead to the other manifestations of deinstitutionalization.
Blankenhorn’s book, The Future of Marriage, DIX0956, lists numerous consequences of permitting same-sex couples to marry, some of which are the manifestations of deinstitutionalization listed above. Blankenhorn explained that the list of consequences arose from a group thought experiment in which an idea was written down if someone suggested it. Tr 2844:1- 12; DIX0956 at 202.