04 August 2010

Proposition 8 Struck Down

Dorothy need not surrender. The Friends of Dorothy won... so to speak. And Judge Walker, by doing his job and doing it well, like Judge Jones before him via Kitzmiller, has guaranteed that he cannot be confirmed to an appellate court.

There is going to be a lot of analysis forthcoming on why the result is or is not right, and does or does not signal the end of Western civilization. There will be lots of sound and fury in tales told by idiots, ultimately signifying nothing... on all sides of the issue. It's not going to be pleasant. So, instead, I'm going to point out why this decision probably cannot be overturned without severe judicial activism — because Judge Walker is a smart judge who knows how to craft his findings of fact.

That's right: The key insulation for Judge Walker's conclusions is not his legal analysis, but his findings of fact — and, specifically, his findings on credibility of the evidence offered by proponents of Proposition 8 (the "one-man-one-woman-only" amendment to the California state constitution at issue). Here's a sample:

As explained in the credibility determinations, section I below, the court finds the testimony of Cott, Peplau and Badgett to support findings on the definition and purpose of civil marriage; the testimony of Blankenhorn is unreliable. The trial evidence provides no basis for establishing that California has an interest in refusing to recognize marriage between two people because of their sex.

Perry v. Schwarzenegger, No. 09-2292 (PDF) (N.D. Cal. 04 Aug 2010), slip op. at 15. Similar passages appear throughout the findings of fact (e.g., at 20, 24, 49, 53)... and the standard to overturn the trial judge's credibility determinations in a bench trial is so high that it's going to be even tougher than one might otherwise expect to overturn this one.

Judge Walker does not stop there, though. His rather thorough evisceration of the qualifications and analysis offered by the two "experts" called by proponents of Proposition 8 is closely tied not to personal preferences, but to core case law and the rules of evidence. The amusingly dry discussion of Blankenhorn's purported "expertise" and "analysis" sort of made my day... but I always like seeing self-righteous bigots disassembled in print. Then he follows his credibility analysis with an exemplary set of findings of fact, with direct citations to specific parts of the record to enable later reviewing courts to see that he did his job — which will only make it harder than usual to overturn his factual findings.

Of course, all the facts in the world will not help in the trial court if the law says otherwise. This is actually the most difficult part of the opinion to read, beginning at page 109 of the slip opinion. The critical part begins on page 116, under the following inflammatory — but justified by the findings of fact — heading:


At this point, any punches that Judge Walker had pulled through polite legal language began to land anyway... because he waded squarely into the Barnette/Gobitis morass on the side of Barnette, by citing Barnette for the proposition that fundamental rights are not subject to a vote,1 and concluding that

As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny.

Slip op. at 117. Judge Walker rather subtly shifts the blame for any horrifying results onto the lawyers for the proponents of Proposition 8. Although this won't protect his own career prospects, it adds another layer of insulation to the opinion itself.

What I like in particular in this opinion, though, is a subtle passage that — while simultaneously respecting the law as it has developed — also attacks one of the problems with the various standards for review of statutes.

Proponents’ purported rationales are nothing more than post-hoc justifications. While the Equal Protection Clause does not prohibit post-hoc rationales, they must connect to the classification drawn. Here, the purported state interests fit so poorly with Proposition 8 that they are irrational, as explained above. What is left is evidence that Proposition 8 enacts a moral view that there is something “wrong” with same-sex couples.

Slip op. at 133. This states the logical problem with the entire structure of rational-basis review. Unfortunately, it is a problem that the Supreme Court has refused to grapple with since the mid-1960s, choosing every time when presented with a challenge to the logical basis for this standard of review to sidestep it out of excessive respect for the alleged good will of the elected branches of government and/or electorate.

In the end, Judge Walker's opinion went where the evidence led him... and although he wasn't so blunt and insulting, the evidence led him to believe that Proposition 8 is nothing more than bigotry as in Loving (the ironically named case in which the Supreme Court struck down Virginia's prohibition on interracial marriage... only about forty years ago). Sheer bigotry not being a rational basis for legislation — let alone valid under any stricter standard of review — his opinion (slip op. at 136) strikes down Proposition 8 entirely.

However, Judge Walker has stayed the effect of this remedy for at least two days, until the plaintiffs can present their rationale against a stay during appeal. Given the strength of the factual record in this matter, I doubt that Judge Walker will himself grant a stay during appeal... particularly as the language of Proposition 8 itself allows for recognition of same-sex marriages that took place in California prior to Proposition 8, it's pretty clear that any "harm" to the proponents of Proposition 8 simply does not meet the standard for staying the striking down of Proposition 8 while Perry is on appeal. And it will be on appeal for a loooooong time: I doubt that there is much possibility of an accelerated schedule in the Ninth Circuit, meaning that the earliest we could reasonably expect an opinion in the first round of appeals is June or July of 2011, and it is more likely to be early 2012.

  1. This is an interesting inversion of Barnette. That case held that West Virginia could not, consistent with the First Amendment, punish schoolchildren and their families for refusing to salute the flag and recite the pledge of allegiance, when the families in question were Jehovah's Witnesses (whose doctrine treats the flag as a graven image that may not be acknowledged in that manner). By citing Barnette for the "fundamental rights are not voted upon" issue — and not Lawrence, or Loving, or any of a variety of racial discrimination in schools cases, let alone search and seizure cases with which he is no doubt intimately familiar — he manages to bring in an inversion of the rationale offered by the religious proponents of Proposition 8. If he had upheld Proposition 8, that would have validated imposing a religious value-set through state action... precisely what several of those same religious groups were subjected to in Barnette itself.

    That only a true law nerd would have cared about this in the first place, let alone caught it on first reading of a 138-page opinion, should tell you more than you really want to know. But then, you've read this far already...