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Dave Hoffman, at Concurring Opinions. He is not impressed by the factual findings that Judge Walker presented:

But there are facts, and then there are constitutional facts.  Almost every “fact” identified by Judge Walker is of the latter type — “Sexual orientation is a fundamental characteristic of a human being.”; “marriage is widely regarded as the definitive expression of love and commitment in the United States.”; “permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”, etc.  It is exceedingly unlikely that any appellate judge or Supreme Court Justice would feel compelled to defer to these factual judgments.  That’s just not how constitutional empiricism seems to work.  Nor, in my view, should it work that way.  Why would Judge Walker have any special expertise at figuring out these tough questions about the social consequences of legal change?  And stepping back, the ordinary case for deference to factual findings is built around two intuitions: (1) that the trial judge can smell liars; and (2) that the appellate court doesn’t have the time to review everything, so it should focus on legal issues apparent on the cold record.  The first intuition has always struck me as pretty weak, and the second obviously loses force in big cases.

As I said earlier, the opinion is very unusual. This may well be one of those cases that will be exhibited as an example of a very poorly reasoned opinion. 

And Orin Kerr at Volokh is similarly unimpressed:

2) Several of the key factual findings in Judge Walker’s opinion are in the form of predictions, not facts. For example, Judge Walker finds that “permitting same-sex couples to marry will not . . . otherwise affect the stability of opposite-sex marriages.” But real predictions have confidence levels. You might think you’re going to get an “A” on an exam next week, but that’s not a fact. It’s just a prediction, and there’s a hidden confidence level: Maybe there’s an 80% chance you’ll get that grade, or a 60% chance. Judge Walker’s prediction-facts have no confidence levels, however. He doesn’t say that there is an 87% chance that permitting same-sex marriage will not affect the stability of opposite-sex marriages. He says that it is now a fact — with 100% certainty — that that will happen.

Appellate judges will naturally discount, if not entirely ignore, efforts to create false certainty out of unknowns by stating that they are facts.

How could a Federal Judge not know the difference between predictions and fact?

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