Even amidst the public backslapping and self-congratulatory high-fiving by superlawyers Ted Olson and David Boies as they take their victory lap, a quiet stream of concern about Judge Walker's ruling and their legal strategy is beginning to emerge from some pro-gay marriage legal scholars.
University of Minnesota law prof Dale Carpenter, over at The Volokh Conspiracy, called Walker's opinion a "maximalist" and "aggressive" approach. Carpenter doubts the success of Judge Walker's attempt to confine the facts to a few expert witnesses presented at trial. "By my count, [Judge Walker] uses the word “evidence” 54 times in the “Conclusions of Law” section alone. . . But I have never been convinced that the issue of gay marriage would be decided, in courts at least, by a battle of expert witnesses in the way we might decide whether a Pinto is unreasonably dangerous," warns Carpenter.
Another gay marriage supporter, Professor Doug NeJaime at Loyola Law School, Los Angeles agreed, telling the NYT: "I don’t see five justices on the Supreme Court taking Judge Walker’s findings of fact to the place that he takes them."
"[M]y concerns about this decision outweigh what I see as its merits. In reading so far, I think a notable feature of Judge Walker’s decision is its judicial maximalism — a willingness to reach out and decide fundamental constitutional questions not strictly necessary to reach the result. It is also, in maximalist style, filled with broad pronouncements about the essential characteristics of marriage and confident conclusions about social science. This maximalism will make the decision an even bigger target for either the Ninth Circuit or the Supreme Court. . . . Gay-rights groups, you may recall, initially opposed the Prop 8 litigation on the grounds that it was too much, too soon. Though they are publicly celebrating this ruling, I imagine in the background there is considerable unease about what happens next."