I am hearing this question alot. I don’t think they did, for this reason: they thought the issue was whether the constitution requires same sex marriage. The other side acted as if the issue was whether same sex marriage is good public policy. The Protect Marriage Lawyers thought all that stuff that took up so much media attention was a media sideshow, not relevant to the issue at hand.
The Dean of UC Davis law school explains that this may actually be correct.
But in the end, the big analytic moves in Walker’s ruling – that same-sex couples seek to invoke rather than alter the right to marriage, that incrementalism and cautiousness in public policy change are not inherently “rational” under the Constitution, that gays and lesbians need special judicial protection from discrimination – are all legal conclusions, and the Ninth Circuit will decide these questions for itself, without giving Walker’s determinations much formal deference.
In other words, Judge Walker’s “Findings of Fact” may not fool the Ninth Circuit into thinking that they cannot reopen any of the questions he labeled as established fact. The Ninth Circuit, (and the Supreme Court, if the case ends up there,) may just be annoyed at the high-handedness of Judge Walker, and along with the way he allowed his courtroom to be turned into a media circus.
We shall see.
