Some thoughts on the Prop. 8 Ruling
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’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.
- 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!
- 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:
- Not only does he find that same-sex marriage bans fail to have any rational basis in any public policy outcome, but that:
- 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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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?