Leonard Link: Federal Trial Court Rules That Proposition 8 Violates the 14th Amendment

Friend Art Leonard gives an analysis below

Leonard Link: Federal Trial Court Rules That Proposition 8 Violates the 14th Amendment: "- Sent using Google Toolbar"



U.S. District Judge Vaughn R. Walker has ruled that Proposition 8, the 2008 California ballot measure that enacted an amendment to the California Constitution providing that only the union of one man and one woman would be valid or recognized as a marriage in California, violates the 14th Amendment of the U.S. Constitution. In a 138 page opinion summarizing the trial record in excruciating detail, Judge Walker found that there was absolutely no rational basis for California to exclude same-sex couples from the same right to marry that is provided for different-sex couples, thus violating the plaintiffs’ fundamental right to marry as well as their right to equal protection of the laws. Perry v. Schwarzenegger, No. C 90-2292 VRW (August 4, 2010).

The official proponents of Proposition 8, who were allowed to intervene as defendants in the case after Attorney General Gerry Brown indicated he agreed with plaintiffs and the other named defendants, including Governor Arnold Schwarzenegger, refused to take a position on the merits of the case, had filed an application for a stay even before the ruling was announced on the afternoon of August 4, and indicated their intention to appeal promptly. Judge Walker’s opinion ended with a directive to the clerk to enter judgment against the defendants, in the form of a permanent injunction against the enforcement of Proposition 8. Unless the defendants secure a stay from Judge Walker or the 9th Circuit Court of Appeals, same-sex marriages can resume in California.

The case was filed by the American Foundation for Equal Rights on behalf of two same-sex couples, eager to marry but denied that right as a result of the passage of Proposition 8. The Foundation enlisted two of the most prominent appellate litigators in the country, Ted Olson and David Boies, with their respective law firms, to present the plaintiffs’ case. The Proponents secured the services of Charles Cooper, a leading conservative appellate litigator, on their behalf. The trial was conducted in January, and additional post-trial arguments were submitted in June. The Supreme Court cut off Judge Walkers’ plan to have the trial webcast or at least closed-circuit broadcast at several federal courthouses, based on the defendants’ argument that such broadcasting could deter their witnesses from testifying due to their perception of danger at the hands of same-sex marriage proponents. In the event, however, Judge Walker noted somewhat acerbically, most of the witnesses on the defendants’ pretrial list were never presented in court.

The nub of Judge Walker’s ruling can be found in his one-paragraph Conclusion: "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."

Walker began his opinion with a history of the same-sex marriage issue in California leading up to the enactment of Proposition 8, including the California Supreme Court’s ruling earlier in 2008 that denying marriage rights to same-sex couples violated California constitutional protection of fundamental rights and guarantee of equal protection of the laws. He noted the California Supreme Court’s subsequent ruling that the enactment of Proposition 8 did not violate the state constitution’s procedures for enacting initiative amendments, observing that the state court had ruled that Proposition 8 deprived same-sex couples of the right to marry but not of the rights accompanying marriage, leaving the state’s domestic partnership law intact.

Then Walker described all the parties and summarized the trial record at great length, concluding with a detailed list of factual findings, each documented with references to the record. He paid particular attention to the "expert" testimony presented by the proponents, because he found that neither of those witnesses, David Blankenhorn and Kenneth Miller, was really qualified to offer relevant expert testimony on the central questions in the case. As a result, Walker concluded, their testimony should receive no weight, and he generally did not refer to it, although in summarizing he noted that at many points their testimony actually bolstered the plaintiffs’ case.

The factual findings cut against the defendants’ case in every particular, especially as defendants had focused heavily on the contention that the state could be concerned to protect children by seeking to privilege different-sex couples with the right to marry. In this regard, Walker’s findings were consistent with those of several state supreme courts that have ruled on the same-sex marriage question, including California, Connecticut, Massachusetts and Iowa.

In this sense, the long section of factual findings may seem redundant, but Walker had indicated several times during the proceedings his concern to compile a detailed record, realizing that the case would be appealed no matter which side won, and by pinning down a wide range of potentially relevant factual findings, he would be providing a strong basis for the winning party to defend his ruling on appeal. Appellate courts rarely reject factual findings that are documented by extensive references to a detailed trial record, and factual findings can be the most significant part of a case involving significant disputes about public policy.

Finally, at page 109 of the opinion, Walker reached his legal analysis, divided into two parts: Due Process and Equal Protection.

Walker rejected the defendants’ argument that plaintiffs were asking for the court to recognize some new right of same-sex marriage. "Plaintiffs do not seek recognition of a new right," he wrote. "To characterize plaintiffs’ objective 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."

This conclusion follows several pages tracing the legal history of marriage in American law, noting how it has evolved from an institution based on distinctly different gender rules and racial exclusion into an egalitarian institution. Having embraced the idea that plaintiffs were seeking essentially the same thing that is made available to different-sex couples, Walker concluded that this was a "fundamental rights" case, because the Supreme Court has frequently spoken of marriage in terms of a fundamental right. Consequently, it is a "strict scrutiny" case, in which the state can only deprive a group of citizens of a fundamental right if it has a compelling interest that can only be achieved through this exclusion.

"That the majority of California voters supported Proposition 8 is irrelevant," wrote Walker, "as ‘fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections," citing the Supreme Court’s 1943 decision West Virginia State Board of Education v. Barnette, the famous World War II flag salute case.

"As explained in detail in the equal protection analysis," Walker continued, "Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by the 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 governmental interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents stipulated that ‘there is a significant symbolic disparity between domestic partnership and marriage.’ Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment."

Walker then turned to the alternative argument, Equal Protection. He could have simply found that since Proposition 8 discriminates based on sexual orientation with respect to a fundamental right – the right to marry – the Equal Protection analysis is also a strict scrutiny analysis. Or he could have found that sexual orientation is a "suspect classification," mandating strict scrutiny on that basis. But his opinion was written with a canny regard for the appellate process and the possibility that as this case goes up through the appellate route, possibly landing before the Supreme Court, it is possible that higher courts would disagree as to both the fundamental right and suspect classification conclusions. Thus, although he indicated that the trial record would support a finding that sexual orientation is a suspect classification, he decided to conduct his analysis using the rational basis test, making his ruling defensible under that standard as well.

This is where the detailed factual findings were crucial to the outcome, because they provided a firm basis for rejecting all the arguments that Proposition 8 might serve some rational policy goal of the state. "Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest," he wrote. "One example of a legitimate state interest in not issuing marriage licenses to a particular group might be a scarcity of marriage licenses or county officials to issue them. But marriage licenses in California are not a limited commodity, and the existence of 18,000 same-sex marriage couples in California shows that the state has the resources to allow both same-sex and opposite-sex couples to wed."

Walker systematically considered and rejected the six different rationales that had been proposed by the proponents of Proposition 8: (1) reserving marriage as a union between a man and woman and excluding any other relationship from marriage; (2) proceeding with caution when implementing social changes; (3) promoting opposite-sex parenting over same-sex parenting; (4) protecting the freedom of those who oppose marriage for same-sex couples; (5) treating same-sex couples differently from opposite-sex couples; and (6) any other conceivable interest. In brief, Walker found most of these arguments were merely another way of saying that the state could legitimately seek to treat same-sex couples as inferior to different-sex couples, and that the arguments were contrary to the overwhelming weight of the record showing that children raised in households headed by same-sex couples turn out as well as children raised in households headed by different-sex couples.

Walker’s conclusions were not novel. As indicated above, they followed the path now well-worn blazed by several state supreme courts. But they are stated with such clarity and directness that they take on enhanced effectiveness and authority, especially since many the state court decisions were not based on extensive trial records but instead were decided on motions for summary judgment based on affidavits and legal arguments. Walker’s conclusions, bolstered by a lengthy trial record featuring eminent experts on the most salient points, have added weight as a result. Among other things bearing on the rationality argument, he found that the record showed that California as a whole and gay and lesbian couples as a class would be benefitted by allowing same-sex marriage, and would be disadvantaged by forbidding it.

After rejecting the proponent’s argument, Walker devoted a brief section of his opinion to what, at bottom, seems the real objection to same-sex marriage by the defendants. "In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men and or two women, this belief is not a proper basis on which to legislate."

Walker reviewed the evidence about the campaign to enact Proposition 8, showing that it was really about moral disapproval, which has been discredited as a ground for discriminatory legislation, in a series of Supreme Court cases. "Proponents’ purported rationales are nothing more than post-hoc justifications," Walker asserted. "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."

Walker concluded that the campaign was all about advancing the belief "that opposite-sex couples are morally superior to same-sex couples. The campaign relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians.. . . The evidence shows. . . that Proposition 8 played on a fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual."

"Moral disapproval is an improper basis on which to deny rights to gay men and lesbians," wrote Walker. "The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment."

After noting that California officials had not sought to defend Proposition 8 on the merits, Walker imposed his remedy: "Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directly the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors."

Judge Walker did not mention the pending motion for a stay by the defendant-intervenors, which presumably would be dealt with in a separate ruling. However, from the tone of his opinion it seemed unlikely that he would be inclined to stay his ruling. On the other hand, the defendants could seek a stay from the 9th Circuit Court of Appeals, based in San Francisco, where defendant-intervenors promptly announced they would bring the case on appeal.