First, the plaintiffs/challengers have been able to offer some evidence to establish a record on which a receptive judge could rule in their favor (if Supreme Court precedent permits it). There are at least four related but distinct kinds of questions that plaintiffs have been trying to address: (1) What is the history of, and what are the justifications for, the institution of modern civil marriage, and do that historical trend and set of justifications argue in favor of defining the individual liberty right to marry a person of one’s choice broadly enough to include same-sex marriages?; (2) Are gays and lesbians relatively politically powerless victims of unfair societal and governmental hostility such that they, like members of racial minorities, ought to benefit from a special judicial solicitude?; (3) Were the voters who adopted Proposition 8 motivated by reflexive bias and bigotry, rather than legitimate public policy concerns?; and (4) What, exactly, is the governmental objective that is arguably or likely served today by defining marriage to include opposite-sex couples but not same-sex couples?

On each of these questions, the plaintiffs introduced some helpful evidence. Not uncontradicted evidence, mind you, but helpful evidence to be sure. Helpful to whom? Helpful to those judges whose “constitutional gut” instincts incline them to be open to the plaintiffs’ claims. Put differently, here, as in many cases, the plaintiffs have laid a foundation on which a receptive judge could rule in their favor, but have not necessarily adduced the kind of evidence that is likely to win over a judge who was skeptical of their legal, historical, and sociological arguments in the first place. (Notably, the record in the Proposition 8 case may also provide useful – and perhaps more influential — information in some non-judicial arenas, such as future legislative or initiative battles throughout the country on the same-sex marriage issue.)

Read the rest of Vikram David Amar’s FindLaw article here.