Sherlock Holmes once famously said, “Watson, I call to your attention the curious fact of the dog barking in the night.” “But Holmes, there was no dog barking in the night.” “That is the curious fact.”
It is a curious fact that Judge Walker did not discuss any of the previous cases that deal with the constitutional questions before him. Chuck Cooper puts it this way, in his Emergency Motion seeking a stay of Judge Walker’s judgement invalidating Prop 8:
“Given that the district court did not cite a single case that had addressed these issues, one might think the court was deciding issues of first impression on a blank slate. Nothing could be further from the truth.
Indeed, though the district court held that the venerable definition of marriage as the union of a man and a woman violates the Due Process and Equal Protection Clauses of the Federal Constitution, evey state or federal appellate court to address the issue, including the Supreme Court in Baker v Nelson, and this Court in Adams v Howerton—has consistently rejected this conclusion.
The district courts conclusion that strict scrutiny applies to classifications based on sexual orientation likewise stands in stark conflict with binding authority from this Court and the unanimous conclusion of ten other federal circuit courts (all that have addressed the question) that such classifications are subject only to rational basis review.
And again, contrary to the district court’s conclusion below, the Court and the overwhelming majority of other courts, both state and federal, to address the issue have concluded that the opposite-sex definition of marriage rationally serves society’s interest in regulating sexual relationships between men and women so that the unique procreative capacity of those relationships benefits rather than harms society, by increasing the likelihood that children will be born and raised in stable family units by the mothers and fathers who brought them into this world.
The district court did not confront the Supreme Court’s holding in Baker, binding authority from this Court, or any of the well-established lines of authority opposed to its conclusions. It did not distinguish them. It did not explain why it believed they were wrongly decided. It did not even acknowledge their existence. It simply ignored them. ”
As I said in my previous post, Chuck Cooper knows what he is doing. The curious fact, is that Judge Walker ignored all relevant binding precendents on this question. Why? Only he knows for sure. But the fact that he did not confront this body of case law will surely increase the chances that he will be overturned on appeal.