A Stitch in Haste

(Cross-posted previously at Overlawyered.)

No sooner had I put the finishing touches on my subway search post, in which I analogized the Second Circuit's abdication of responsibility in that case to the recent gay marriage defeats in New York and Washington States, than I came across this excellent CQWeekly editorial:

[T]he New York and Washington courts both said that legislators could have believed that children fare better in families with both a mother and a father as role models. Neither court had research to prove the point: There is none. Instead, as the New York court said in the main opinion, the supposed advantage was a "common sense premise" supported by "intuition and experience."

Whatever quibbles one might raise about each of the points, both courts were guilty of an overriding lapse of logic. The issue in both cases was not whether marriage for opposite-sex couples is a good thing, but whether legislators had some reason — other than ignorance or prejudice — to deny those benefits to same-sex couples.

Precisely.

In law school you're taught that jurors resolve questions of fact and judges resolve questions of law. You're taught that appellate courts review findings of law "de novo" but must leave findings of fact "undisturbed."

But what about an absurdity disguised as a fact? When, where, how and by whom does that get reviewed?

In New York State, if I remember correctly, a criminal conviction can be overturned on appeal if either there was reversible error or the verdict went against "the great weight of the evidence." Where is that standard in questions of constitutional rights? Or when there is instead a "great void of evidence," as in the gay marriage cases?

It cannot possibly be the proper function of a judge to perpetuate a farce.

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And if you need a more "Overlawyered" analogy than gay marriage: Who is going to be responsible for rescuing Merck from all those unconscionable Vioxx verdicts? That's right -- judges. Go figure.