We trust courts to resolve disputes over everything from whether the light was red to whether children experience better educational outcomes in diverse classrooms. As a general matter, such disputes are resolved through hard-fought adversarial testing of an evidentiary record because the American judicial system is premised on the assumption that such testing is the most effective means of reaching the truth. Nowhere is this premise more evident than in cases like those about marriage between same-sex couples, cases that inherently touch on beliefs about the nature of human identity, value judgments about human psychology and behavior, and what is in the best interest for children. Moreover, each of these is a topic on which most people, including most judges, have long-held views that (consciously or not) are based on their own personal experiences. For this reason, a careful, thorough evidentiary record, subject to cross-examination, is particularly important to help assure that a court’s decision will not be grounded on assumptions or prejudice. Perry v. Brown exemplifies this. In Perry, the opponents of Proposition 8 put forward testimony from eight lay witnesses and nine expert witnesses, which the court credited extensively in its analysis. The Proposition 8 proponents, on the other hand, were able to offer only two trial witnesses to support their position that the statute had rationally furthered a legitimate governmental objective.
Argues that Perry has pushed marriage equality to be more mainstream, thereby affecting other cases through judicial notice of shifting public opinion.
Perry is an opportunity for the court to correct constitutional doctrine by focusing on substantive due process and clarify its marriage jurisprudence.
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Calls for a minimilist decision in Perry that leaves unchallenged some of the more contentious legal questions.