The Prop 8 ruling: Since when do facts matter to judges?

Here’s how it worked in the gay marriage case. Walker asked whether the goal of Prop 8 — higher levels of marriage & less divorce, encouragement of procreation, social stability — were achieved by a ban on gay marriage. He said no. He cited a few studies, as if they proved facts about the real world, by the plaintiffs’ experts. Because of this, the law failed the rational basis test — there was no possible logical link between the goals of Prop 8 and the means.

Imagine if the courts were to apply this approach to other laws. Did the stimulus and bailout bills in fact encourage economic growth? Do the illicit drug laws in fact increase health and reduce crime? Can we catch terrorists by monitoring their emails and phone calls without a warrant? One judge, armed with a few social science studies, could decide to overrule the considered judgment of the elected branches of government.