One can make the case that the US is a far too litigious a society.
But going to court does have one big advantage when it comes to highly charged issues. Its structure of rules requiring facts and evidence and arguments in support of a claim, and the requirement that people have to tell the truth and directly address questions that are posed to them by opponents, can be remarkably effective in brushing away a lot of the obfuscation that accompanies debates in other less formal venues.
This happened in the case of so-called intelligent design. As I discuss in my book God vs. Darwin: The War Between Evolution and Creationism in the Classroom, for over two decades, advocates of ID had made considerable headway in the public sphere by finessing questions of god and religion when asked about how intelligent design worked. They did this by practicing a form of double-speak. When it came to trying to infiltrate it into the public school science curriculum, they would claim that it was a completely secular theory.. When talking to religious groups who formed their support base, they would give a wink and a nod that the designer was their very own god. But when the Dover, PA case went to trial in 2005, they were forced to be specific in their answers under cross-examination and the judge had little trouble in concluding that intelligent design was a religious belief structure and that the motives of its proponents were religious.
We see that same thing happening now with same sex marriage. People can rail all they want about how bad same sex marriage is without having to produce any actual evidence that it is harmful. But you cannot do that in a courtroom. As Dahlia Lithwik points out in the case of California’s Proposition 8, in both the District Court and the Appeals Court trials, the inability of those opposing same sex marriage to come up with any coherent evidence and arguments was striking. As she says,
One of the most remarked-upon aspects of the first round of Prop 8 litigation, that concluded this week with a 2-1 defeat for the initiative at the 9th Circuit Court of Appeals, was the weakness of the case against gay marriage. As Andrew Cohen explained at the time, at every turn Judge Vaughn Walker, who presided over the trial, expressed frustration at the fact that the opponents of gay marriage either had no case or couldn’t be bothered to make one.
Perhaps, as many speculated at the time, it reflected the deeper reality that there was no factual or empirical case to be made: The evidence, the data, and the experts overwhelming agree that gay marriage does not harm children. And that leaves opponents of gay marriage to argue a tautology: Gay marriage is wrong because it’s wrong.
She pointed out that even the dissenting appeals court judge Randy Smith had to grasp at straws to explain his opinion.
Smith’s reasoning does an incredible thing: It produces a justification for why the proponents of a gay marriage ban need offer no justification. Where Cooper could only deliver a “because-I-say-so” theory of jurisprudence, Smith attempts to come to the rescue with a “because-someone-says-so” theory of his own.
As Smith lays it out, since both sides “offer evidence” and the question of optimal parenting is still “debatable”—and will remain debatable as long as no fact or evidence is required to prevail in the debate—the tie goes to the state. Gay marriage can be banned.
So there you have it: That’s the best case that can be made against gay marriage. An appeals court dissent that rests on the premise that states needn’t act rationally, or offer evidence of rationality, or even be rational in creating classifications, so long as someone publishes a study and someone else believes it. That’s the best they’ve got, it seems.
That is not legal argument or empirical evidence. It is the death rattle of a movement that has no legal argument or empirical evidence. Nobody disputes the fact that Americans opposed to gay marriage believe passionately in their ideas and arguments. But that doesn’t necessarily mean those arguments should win in a court. The best thing that could have happened in the Prop 8 case just happened. The dissent has no clothes.
Change a few words here and there, and she could be talking about how the intelligent design debate played out. And I suspect that when it comes to this issue too, the eventual result will be the same. The side having little or no evidence on its side but sustained only by irrational passion will lose.