Skip to content

Some thoughts on the Prop. 8 Ruling

August 5, 2010

Here are some initial thoughts.  I’ve taught (as a teaching assistant) two semesters of Law and Public Policy at the Goldman School, a class in which we closely examine the jurisprudence surrounding same-sex marriage, so I have some minimal expertise on the issue, even though I am a political scientist and not a lawyer.

Vaughn Walker Laying Down the Law

  1. Vaughn Walker’s opinion is pretty epic, in my initial take.  It is thorough, scholarly, clear on the legal issues.  It marshals a lot of social science in its evidence, which is apparently due in part to the plaintiffs arguing a truly masterful attack (Boies and Olson as a superlative team, who knew!), while the Prop. 8 proponents offered only token evidence of state interest in defense of a ban on same-sex marriage.  Whatever evidence they marshaled was simply destroyed at court.  This case will be taught in law school, if only as a study of how to argue (improperly) a case with ‘rational choice’ implications.
  2. The proponents of Prop. 8 could not marshal any convincing evidence for a prohibition on same-sex marriage.  This seemed to me, from the beginning, to be the crux of the case.  How does allowing same-sex marriage degrade, de-institutionalize, or lead to negative externalities to heterosexual couples?  Presumably, if this argument were true, there would be social science evidence that legalizing same-sex marriage led to some identifiable problem for the institution of marriage more generally.  Same-sex marriage is legal in multiple states and countries, and surely a statistical ‘paper trail’ should exist.  That the proponents of Prop. 8 could not find even the slimmest of evidence (which is really all that is needed under the ‘rational basis test’) suggests the ultimate struggle for marriage equality is on firm ground.  I mean, the attorneys and researchers for the proponents were paid to find such evidence.  And they couldn’t!
  3. Vaughn Walker has written an opinion designed to be the strongest possible decision on appeal.  There is A LOT for an appeals court to hang its decision on:
  4. Not only does he find that same-sex marriage bans fail to have any rational basis in any public policy outcome, but that:
  5. Even if there were such an outcome identified, that sexual and gender orientation is a suspect class, and thus laws based on such classification require stricter scrutiny, which Prop. 8 would also fail. He doesn’t actually set that level of scrutiny, but implies that:
  6. Sexual orientation discrimination is equivalent to sex and gender discrimination, and thus warrants at least that level of heightened scrutiny.  This is new law, as far as I know.  Most discriminatory laws against gays and lesbians have been struck down on the ‘rational basis test’ (Romer, the Florida adoption cases)– this ruling, I believe, is the first federal opinion raising sexual orientation to heightened scrutiny, to which sex-based discrimination has been raised for decades.
  7. Same-sex marriage extends an existing right, and doesn’t create a new right.  Walker lays this out in an admirable historical narrative detailing how abolitions of certain racial- or gender-based marriage restrictions have previously extended an existing right, rather than creating ‘new’ rights.
  8. In all, I think that Judge Walker’s ruling allows the 9th Circuit appellate panel the maximum flexibility in choosing from among the various rationales for allowing same-sex marriage.  The appellate courts can pick from among these multiple rationales.
  9. Perhaps most interestingly and hearteningly, this ruling is fantastically clear that it is pro-family.  Prop. 8 proponents (and anti-gay activists in general) cloak themselves as defending families, traditional marriage, and so forth, from dangerous innovations that might weaken the institution of marriage.  On the contrary, says Judge Walker.  Prop 8 hurts parents, families, and children by stigmatizing, delegitimizing, and actually breaching real existing family bonds that already exist!  It’s almost that like Judge Walker is adopting the saying, in the old gay rights slogan, “they’re here, they’re queer, get used to it.”  Gay- and lesbian-headed families exist in reality already!  So Prop. 8 hurts actual existing families!  This was a political strategy that the No on Prop. 8 campaign minimized, and that Judge Walker took up to his great credit.
  10. As Dahlia Lithwick has noted, this opinion is tailored specifically to Associate Justice Kennedy, who will likely be the deciding vote in a Supreme Court case.  She lays it out in great detail here.  Read it.  Basically this is the strongest possible opinion that can been upheld at the Supreme Court.  I wager that even Chief Justice Roberts might be convinced, if only to avoid the stigma of being the leader of a ‘Dred Scott’ court.
  11. Unfortunately, the fact that Judge Walker is gay will be politically (though not legally) important in the next few months.  There was no way for him to minimize that, and he correctly just plowed forward and did his best.
  12. The best part of this opinion is that it lays out in the fact record the lack of evidence for any rational public policy rationale for prohibiting same-sex marriage.  This will allow state courts all over the country to rely on his interpretation of the facts, no matter how the law is ultimately decided.  It’s a fantastic precedent.

That’s all for now, but what a great day for justice, and for my many friends who want to get married currently or at some point in the future.


Another remarkable feature in this ruling, which hasn’t been so prominent or developed in other pro-same-sex rulings, is, I think, the level of humanity that Judge Walker brings to his opinion.  As I mention above, it is a deeply pro-family ruling.  But also he ably lays out the history of discrimination against gay men and lesbians to a level that previous rulings I’ve read have failed to reach.  He leaves no doubt that gays and lesbians are people who are truly harmed by Prop. 8, even though that harm actually plays only a secondary role in bolstering his legal ruling.  He’s probably daring appellate courts which might be willing to overrule him to confront those harms, and to justify how those harms’ legal weight are irrelevant to the jurisprudence of any potential reversal.

Finally, it occurs to me that this is an opinion written by someone who lives in the Bay Area, and is embedded in its society.  I don’t mean this to knock Judge Walker as being a ‘San Francisco liberal’ out of touch with ‘heartland America’– whatever the hell that means.  But I do think that he brings to the case certain assumptions that reflect a certain cosmopolitanism that we enjoy in the Bay Area.  For instance, he takes for granted that gay and lesbian families exist.  That they raise children.  That they function as families very successfully, or at least as well as heterosexual couples.  I feel that, as a Californian, Bay Area-ite (?), and Oaklander, I too take these assumptions for granted, and that it would take actual, rigorous, conclusive social-science to show me that same-sex marriage is somehow detrimental to anyone.  Judge Walker also seems to bring that sensibility to the ruling.  I don’t think that judges in other parts of the country, or even other parts of the state, would necessarily start from those sets of assumptions. I hope I’m wrong– I’m just spitballing here.


I don’t know the mechanics of how this would work, but considering that the Prop. 8 proponents proposed virtually no factual evidence of a state interest, can the 9th Circuit Court of Appeals remand to Judge Walker for additional fact-finding?  Can they say, essentially, that: “the case presented by the proponents was so shoddy that we want you to allow more evidence to be presented?”  I don’t know if that’s possible, or common.  Does anyone know?

One Comment
  1. Toby permalink
    August 5, 2010 9:07 pm

    In answer to your question, while I don’t think it is impossible for an appeals court to remand for further factual development, it doesn’t seem to happen, and there are some very solid reasons why an appeals court wouldn’t do that. The party presentation principle dicates that it is up to the parties to make the arguments and present the evidence that support the case. If they fail to do so, then that’s their fault, and the appeals court accepts the factual record as-is. But there have been many cases where appeals courts have, sua sponte, asked the parties to brief issues that were not developed enough (for instance, after the Supreme Court handed down Brown v. Board, they had the parties brief the remedy and argue again before the court; if memory serves, Roe v. Wade was argued twice, as well, and I know that Justice Blackmun spent weeks in the medical library researching abortion to better understand the medical implications).
    You’ve made a very good point that Walker did a good job of laying out his factual findings. That is very important, because while an appeals court can review de novo the legal conclusions of a lower court, it must take all the factual findings as made by the lower court unless they are clearly erroneous, which is the most highly deferential standard on appeal. Essentially, the rationale is that the lower court is the one that hears the witnesses and reviews the evidence, so it is in the best position to make the factual determinations. On the other hand, the application of the law to the facts can be reviewed de novo because the law is the law. Walker understood his role well, and did a fantastic job of developing a factual record that will help constrain the legal inquiry of higher courts.
    It’s good that you pointed out Romer, because the situation here is very similar. As in Romer, Prop 8 was a ballot initiative. A law passed by a legislature will be preceded by the findings of the legislature that will explain the reasoning behind the law. For instance, laws passed by the US Congress will always have extensive findings detailing how the law is an exercise of Congress’s Constitutional authority (usually, it will make some argument about how the law addresses interstate commerce, e.g., the Civil Rights Act was supported by extensive findings that segregation and other racial discrimination affected interstate commerce). The problem with initiatives is that they are just bare bones statements of law, without any findings to support them. That’s what made Romer possible for the Court to decide.
    However, Romer also provides a cautionary lesson. When the court applies the rational basis test, the court does not have to rely on the legislature’s (or, in the case of an initiative, the voters’) statements of the law’s intent and rationale. The court is free to come up with some rational basis that the legislature could have articulated, but maybe didn’t. If strict scrutiny (race) or heightened scrutiny (gender) is applied, the court is bound by the reasoning articulated by the lawmakers. But in this case, just because the proponents of Prop 8 did an awful job of defending the law, it doesn’t mean that judges on appeal can’t supply their own reasoning.
    The last bit of caution I have is that the Ninth Circuit is not as liberal some make it out to be. It has a lot of liberal judges, definitely a majority, but it also has some of the most conservative in the country. I think it is up to 27 judges, and cases are assigned by “the wheel,” which is, supposedly, just that: a wheel that chooses which judges will hear the case. The wheel can, and does, provide some very right-wing combinations (e.g., Lands Council v. McNair pulled some incredibly conservative judges for an en banc panel, and in the opinion by Milan Smith, they go on an orgy of overturning some of the more liberal precedent in the circuit). So, if “the wheel” happens to turn up, say, Kleinfeld, Milan Smith, O’Scannlain, Kozinski, etc., then the celebration in the Castro could be very short-lived.
    And when all is said in done, everything will come down to what a single egomaniac by the name of Kennedy thinks. The most important thing will be how the parties brief this to the Supreme Court: they need to ground their arguments in Romer and Lawrence and try to box Kennedy into his past decisions.

Comments are closed.

%d bloggers like this: