The advantages of litigation

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.


  1. jamessweet says

    I saw this piece yesterday, and while I agreed with most of it, I had one serious quibble:

    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.

    Actually, it is a fairly well-established legal argument. It certainly is not empirical evidence! But it is well-established in case law that, under the rational basis test (which is the highest level of scrutiny that current federal jurisprudence has allowed to be applied to laws discriminating against LGBT people, although there are strong signs this may change within the next few years — Reinhardt’s opinion for example strongly hinted that the court would have applied heightened scrutiny if they felt they had to) you only have to have a nominally rational reason. You do not have to prove that the law in question furthers those allegedly rational aims, nor is the bar set particularly high in what qualifies as “rational”. Lithwik’s sarcastic characterization “so long as someone publishes a study and someone else believes it” is ironically not all that far off from what the rational basis test entails. It may be a very poor argument, but it is in fact, contra Lithwik, a perfectly cromulent legal argument.

    While I think Smith’s objections regarding the Baker decision are odd and anachronistic, he was absolutely “right” (in the sense of, if your goal is to uphold Prop 8, then he was “right”) to go after the majority’s refusal to recognize encouraging procreation as being a rational basis. I myself thought that part of the Reinhardt opinion was a bit dodgy: It delved into making some logical arguments why that particular rational basis would not in fact be served by Prop 8, which is bordering on heightened scrutiny.

    For my money, ignoring all strategic concerns, I think the correct legal ruling would be to hold that LGBT is a suspect class and apply strict scrutiny, in which case Prop 8 fails hard. But I understand why courts are reluctant to rule this way, since LGBT has been affirmed as not even being a quasi-suspect class all the way at the SCOTUS level relatively recently. But if I’m being honest, I’m not entirely sure Prop 8 fails rational basis. The Reinhardt opinion does a pretty good job of arguing that it does, because it preserves the incidents and only takes away the designation… but I don’t think rational basis is strong enough to rule that marriage equality must be granted.

    It sounds paradoxical to say that the rational basis test does not actually require that anybody is acting rationally, but there it is. It only requires that the government believes in good faith that it is acting rationally.

  2. jamessweet says

    I should re-emphasize, though, that this is a small (if serious) quibble in an otherwise enjoyable piece. Lithwik is right on the money in pointing out how pathetic this makes the marriage-haters look. And you make an excellent point in how the structure of a court room forces them into this position. In spreading pro-Prop 8 propaganda, they could rely on a much wider arsenal of arguments because they didn’t even have to be nominally rational. When stripped of their baseless insinuations and dog whistle mumblings, their case looks pretty frikkin’ bad.

  3. M.Nieuweboer says

    All pseudoscientists and pseudologics make use of the same tricks. Essentially the list of logical fallacies on Wikipedia is enough recognize them.
    Now the interesting fact is that there is also a brand of atheists doing exactly the same: Jesus mythologists.

  4. mck9 says

    As I understand it, one of the principle arguments for declaring Prop 8 unconstitutional was that it didn’t really change any of the legal rights associated with marriage; it merely removed the designation “marriage” from same-sex unions. Consequently no rational basis could be argued. Prop 8 was, in essence, a legally pointless insult and indignity imposed on an unpopular class by a hostile majority.

    Now suppose a revised version of Prop 8 removed some of the rights associated with marriage, such as hospital visitation rights, from same-sex unions. Would the revised version be more likely to pass constitutional muster? Not that I want to give anybody any ideas.

  5. 'Tis Himself, OM says

    The reasons I’ve heard for being against same sex marriage are:

    ● I think what gays do in bed is icky!

    ● God thinks what gays do in bed is icky!

    ● If we let gays* marry then my dog can marry a fire hydrant.

    ● Same sex marriage will ruin traditional marriage. (How this is supposed to happen is left as an exercise for the student.)

    Those are the only reasons I’ve ever heard for people to be against gay marriage. Bigotry and logical fallacies are what drive the folks who want to deny rights to other people.

    *It’s always gays. Nobody seems to mention lesbians.

  6. says

    Nice! Reminds me of the strange tale of Kent “Dr. Dino” Hovind.

    He was an experienced debater and had snappy answers to professors of biology who were less focused on PR and more on, y’know, actually learning stuff.

    But when he tried to use his finely honed tactics on the IRS to argue that he didn’t need to pay taxes, they dismissed his nonsense and put him behind bars.

  7. jamessweet says

    The Reinhardt opinion doesn’t say one way or another whether such a revised amendment would pass muster. (He hints that it wouldn’t, at least not according to the majority in that decision) But I would not lose sleep over it, because Prop 8 would have been unlikely to pass in CA if it had gone that far. Reinhardt relied heavily on voter information literature in the run-up to the Prop 8 vote which clearly emphasized that it only changed the designation, not the rights.

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