Judge Vaughn Walker’s decision yesterday overruling Proposition 8 on due process and equal protection grounds was everything that marriage equality supporters could have hoped for. But despite all the exuberance, everyone knew that appealing the case was only a matter of time – and the U.S. Supreme Court would have final say. Walker’s legal analysis argued that “strict scrutiny” was the standard for laws that discriminate against gays and lesbians, but said that Prop 8 even failed the more lenient “rational basis” test. All along, however, we knew that Walker’s opinion wouldn’t matter – higher courts can always disagree, and the opposition had long counted on losing at the trial level. But the 138-page ruling
matters a great deal now because of its first 109 pages – “findings of fact” that cannot be reversed on appeal. Appellate courts can override what a trial judge says on matters of law, but on questions of fact he or she is the arbiter. This was the first gay marriage case to have a full-blown trial, allowing the court to rule on 80 questions of fact that can go a long way to protect equality as the case gets appealed.
Judge Walker’s arguments on why Prop 8 violates due process were particularly helpful, because he couched it within the context that gay couples just want to join the institution of marriage – which courts have repeatedly said is a fundamental right. “Plaintiffs do not seek recognition of a new right,” he wrote on page 114. “To characterize [the] objection as ‘the right to same-sex marriage’ would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy – namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.”
On the equal protection grounds, Walker effectively argued that trial testimony proved that same-sex couples are a suspect class
– which puts laws like Prop 8 that discriminate against them to a higher “strict scrutiny” standard. But knowing that a higher court may not agree, he concludes that Prop 8 fails even the “rational basis” test – and adequately debunked all possible rationales. “Many of the purported interests identified by proponents,” he wrote on page 132, “are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Prop 8.”
All of which are sound legal conclusions – but irrelevant if a higher court can reverse them. What the Ninth Circuit and the U.S. Supreme Court cannot do is overrule findings of fact and credibility judgments that Walker made in the first part of his ruling. And it’s those eighty facts – “stubborn things,” as Ronald Reagan called them – that cannot go away. Even if higher court judges have different opinions, the factual findings are there.
Past gay marriage trial decisions were made on summary judgment – where the parties did not contest questions of fact, and judges were asked to simply rule as a matter of law. Here, the Prop 8 litigants had a full-blown trial for two weeks – where our side produced a stellar line-up of expert witnesses who convincingly made the case that Prop 8 violated the 14th Amendment. Homophobia was on trial
, and when faced with the facts the opposition had nothing to say. All but two of their expert witnesses withdrew.
What factual findings did Judge Walker make, after weighing the evidence heard at trial?
Fact #44: Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group.
For years, the debate as to whether gays and lesbians are a “suspect class” that entitles them to a strict scrutiny analysis hinges on whether we believe a person’s sexual orientation is immutable. By listening to both sides argue that question, Walker has made a finding of fact that it is indeed something we cannot change. I’d love to see Scalia challenge that.
Fact #58: Prop 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.
In Romer v. Evans
(1996), the U.S. Supreme Court overruled an anti-gay initiative in Colorado because sheer animus is not a rational basis for discriminating against a group of people. Again, a higher court can disagree with Walker’s legal conclusions – but not his facts.
Fact #79: The Prop 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements.
Even if a higher court disagrees with Walker that discrimination against gays must pass strict scrutiny, Prop 8 must still be based on articulable reasons that are rationally related to a legitimate state purpose. The Prop 8 campaign ran fear-mongering ads that relied on deep prejudices – appealing to the voters’ worst instincts.
You can read all 80 findings of facts – from pages 54 to 109 – in Judge Walker’s ruling here
Many gay advocates – myself included
– were deeply skeptical of pursuing this case in the federal courts, knowing full well that a conservative U.S. Supreme Court could set back marriage equality for decades. But what taking this case to trial – rather than expedited summary judgment hearings – allowed us to do was to set up a factual framework, which cannot be reversed on appeal. And for that reason, I am more optimistic now that I was six months ago that justice will prevail.