The following comes from a Dec. 30 posting on the politics blog of

Legal reporters with time on their hands sometimes leaf through U.S. Supreme Court rulings and see things they’ve never noticed before. Like Justice Samuel Alito’s putdown of San Francisco’s former chief federal judge, Vaughn Walker, for his ruling on same-sex marriage.

In 2010, Walker presided over the nation’s first trial on a state’s prohibition of gay and lesbian nuptials. He invited testimony from scholars on both sides of the debate over Proposition 8, the constitutional ban on same-sex marriage that voters had approved two years earlier.

Supporters of Prop. 8 withdrew most of their witnesses — claiming they’d been intimidated by Walker’s short-lived plan to post videos of the trial on YouTube — but the measure’s opponents  presented a parade of researchers on the history and purposes of marriage, the laws that have governed it and its development over the centuries.

Walker cited their studies in a detailed set of post-trial findings of fact in August 2010, when he ruled that Prop. 8 was an unconstitutional act of discrimination based on sexual orientation and gender. He found, for example, that marriage had historically been based on assumptions about men’s and women’s roles and males’ inherent authority, that it had evolved into a state-recognized social and economic partnership based on a couple’s mutual commitment, and that there was no evidence that opposite-sex marriages would suffer if same-sex couples were allowed to wed.

When the Prop. 8 case reached the Supreme Court, the justices sidestepped the constitutional issues. Instead, they found in June that the measure’s sponsors, as private citizens with no personal stake in the marriage dispute, lacked legal standing to defend their initiative in federal court after state officials bowed out. That reinstated Walker’s ruling and legalized same-sex marriage in the state.

None of the justices’ opinions mentioned Walker’s factual findings or anything else in his decision. But Alito brought it up in his dissenting opinion from another ruling the same day, a 5-4 decision striking down a key provision of the Defense of Marriage Act, the 1996 law that denied federal benefits to married same-sex couples.

In arguing that the law was constitutional, Alito, joined by Justice Clarence Thomas, said the court was stepping outside the judicial sphere to resolve a debate between “two competing views of marriage.” Citing conservative scholars quoted in House Republicans’ briefs, Alito said the “traditional” view was that marriage was an inherently opposite-sex institution, crafted to produce and support each new generation, while the newer “consent-based” view was based on a couple’s mutual commitment.

Judges should stay out of that debate, Alito said, and leave it to lawmakers and the people. As an example of how the judicial process can go wrong, he cited the Prop. 8 trial.

“The trial judge, after receiving testimony from some expert witnesses, purported to make ‘findings of fact’ on such questions as why marriage came to be … what marriage is … and the effect legalizing same-sex marriage would have on opposite-sex couples,” Alito wrote, referring dismissively to Walker’s summaries of the evidence.

“At times, the trial reached the heights of parody,” the justice declared, when Walker “questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify.”

He was referring to the closing argument of Prop. 8 lawyer Charles Cooper, who cited the views of the late sociologist Kingsley Davis and William Blackstone, the 18th-century British jurist and legal writer, that the essence of marriage was the male-female relationship in conceiving and raising children.

“I don’t mean to be flip,” Walker responded, according to a transcript, “but Blackstone didn’t testify. Kingsley Davis didn’t testify. What testimony in this case supports the proposition?”

Alito went on to condemn a court filing by 11 constitutional law professors who urged the court in the Prop. 8 case to give the same deference to Walker’s findings on marriage that appellate courts normally grant to trial judges who have heard the evidence firsthand.

“Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously,” Alito said.

His comments haven’t gotten much public attention in six months, but they didn’t go unnoticed by the interested parties.

“It is just insulting to the District Court judge and to the trial,” said Erwin Chemerinsky, the law school dean at UC Irvine and one of the 11 law professors who signed the court filing supporting Walker’s findings.

It was also reminiscent of the Prop. 8 supporters’ denunciations of Walker for even holding a trial, said Therese Stewart, San Francisco’s chief deputy city attorney, who represented the city in its suit challenging Prop. 8. In legal motions and public statements, the sponsors of the 2008 ballot measure argued there was no need to gather evidence or hear from witnesses on the constitutionality of limiting marriage to opposite-sex couples, calling it a tradition that has been followed for centuries and repeatedly upheld by the courts.

“I would rather that a judge hear evidence than pull it out of the Internet,” Stewart said, referring to Alito’s reliance on the conservative scholars quoted by House Republicans.

Alito has his defenders. Rory Little, a UC Hastings law professor, said he doesn’t share the justice’s conservative views but praised him for thinking “outside the box” and for pointing out that trial judges sometimes frame their subjective opinions as “findings of fact.”

But Theodore Boutrous, a lawyer for two couples who challenged Prop. 8, said the history of marriage was central to the question of whether denying gays and lesbians the ability to wed violated their constitutional right to equality under the law.

All that Alito did was “summarize the position of Prop. 8′s proponents,” Boutrous said. “He turned the judicial function on its head.”

Alito’s opinion, including footnote 7 that criticizes Walker, can be found at the end of the Supreme Court ruling, linked here.

To read original SFGate posting, click here.