Yesterday, a day which will not live in infamy, a federal judge in California did what judges all across America do every day: After a trial, he made factual findings in a case, applied well-known existing law to those facts, and made a decision accordingly. That he wrote his opinion, instead of orally delivering it from the bench in his courtroom, was likewise perfectly ordinary, especially for a federal judge. And all judges must issue “Findings of Fact and Conclusions of Law” after a judge-trial in which no jury was involved.

But because it was a judicial opinion holding that California lacks any rational basis for depriving gays and lesbians of the fundamental right to marry, the opinion is all over the news today. So, before you navigate away from this page, allow me to explain what was perfectly ordinary about the decision.

For centuries, lawyers and judges have accepted that every case – every single law case – can be decided by discovering the facts of a case and then applying those facts to the relevant legal principles. Suppose a policeman gives you a speeding ticket which you contest in court. The “fact-finder” listens to the evidence, decides how fast you were going, then applies that “fact” to the law – the speed limit – and decides whether you are guilty or not.

Every case has such a “fact-finder.” Once the fact-finders were mostly juries, now they are mostly judges. The fact-finder in the California gay marriage case was a judge. When that happens, the judge first hears the evidence, then decides what the facts are, applies them to the law, and then decides the case.

When a judge is a fact finder as well as the judge, most jurisdictions require that the judge enter a document, almost always called the “Findings of Fact and Conclusions of Law.” These Findings and Conclusions are often lengthy. So, not even the fact that marriage decision is 136 pages long is unusual.

Nor are the federal judge’s Findings and Conclusions out of the ordinary. He did what judges always do: took evidence, made factual findings, and applied them to the law. And the law he used is well-known and has existed long before the case came to the judge. Your right to get married is fundamental and no government can limit or deprive you of that fundamental right without a factual reason.

I highlighted the word “factual” because of its importance in the legal debate about gay marriage. A person can be for or against allowing gays and lesbians to marry purely as a matter of opinion or belief, but a government can’t. That’s the law.

Many reasons were advanced in the California case by the opponents of gay and lesbian marriage but none turned out to have much basis in fact. The judge concluded that there is no factual evidence that allowing gays and lesbians to marry undermines marriage, no factual evidence supporting the idea that adopted children of gay and lesbian parents turn out any better or worse than other children, no factual evidence that divorce rates are affected one way or the other, no factual evidence that the primary purpose of marriage is procreation, no factual evidence that marital responsibilities must be based in gender differences (wives are longer chattels), no factual evidence that government can or should demand that citizens change their sexual identity – even if it were possible, no factual evidence that marital satisfaction and benefits are different in same-sex marriages, and no factual evidence that the State of California has any other fact-based reason for denying this basic human right to substantial numbers of its citizens.

None of these factual findings mean that a person who is opposed to gay and lesbian marriage is wrong as a matter of opinion or belief, but it does mean that government bureaucrats lack any factual reason for depriving gays and lesbians of this fundamental human right. And it probably means that if you are one of the aging minority in this country that so believes, your belief probably does not rest on a bedrock of fact, but in emotion or religion.


The full text of the opinion is all over the web today. I read it here. This version has a handy page guide to the opinion. the Findings of Fact begin at page 55 of any pdf version.


UPDATE – The Ninth Circuit court of Appeals punted recently. Here is the update.


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