NCLR Legal Analysis Of The Ninth Circuit Prop 8 Ruling

BLEND EXCLUSIVE: Trial analysis by the National Center For Lesbian Rights (NCLR) Attorney Shannon Minter.


By Shannon Minter, Esq.

National Center for Lesbian Rights Legal Director

Today brings a new development in Perry v. Schwarzenegger, the federal constitutional challenge to California’s Proposition 8, which amended the California Constitution to strip same-sex couples of the freedom to marry.  Thumbnail Link: NCLR's Legal Director Shannon MinterPerry is currently on appeal before the Ninth Circuit Court of Appeals, the federal appeals court that covers California. In a ruling issued this morning, the Ninth Circuit denied Imperial County’s attempt to intervene in the case. The Ninth Circuit also asked the California Supreme Court to clarify whether, under California law, the group that placed Prop 8 on the ballot has a legal right to appeal District Court Judge Vaughn Walker’s decision that Prop 8 is unconstitutional.

To understand what today’s ruling means, it is helpful to look back on the history of the Perry case. In May 2009, two same-sex couples filed suit in the U.S. District Court for the Northern District of California. Judge Walker permitted Prop 8′s official supporters to intervene in the case as defendants, and also permitted the City and County of San Francisco to intervene as a plaintiff to represent its unique governmental interest in marriage equality. On the eve of trial, Imperial County also filed a motion asking to intervene in the case as a defendant.

After a three-week trial in January 2010, Judge Walker ruled in August 2010 that Prop 8 violates the United States Constitution’s guarantees of due process and equal protection of the laws. Judge Walker also ruled that Imperial County did not have the right to intervene as a defendant.

California’s Governor and Attorney General decided not to appeal that ruling because they agreed that Prop 8 was unconstitutional. The supporters of Prop 8 and Imperial County both filed appeals with the Ninth Circuit.

At oral argument on December 6, 2010, the Ninth Circuit panel asked all sides questions about whether the official supporters of Prop 8 have the legal right to appeal Judge Walker’s decision. The parties also addressed whether Imperial County should have been allowed to intervene in the case as a defendant.

Today, the Ninth Circuit panel upheld Judge Walker’s decision not to allow Imperial County or its Deputy Clerk to intervene in the case. In order to intervene, Imperial County would have needed to show that it had a significant interest at stake. The Ninth Circuit explained in today’s opinion that Imperial County did not have any interests that would be sufficiently affected by the outcome of this lawsuit.

In addition, the Ninth Circuit made clear in today’s ruling that if the supporters of Prop 8 do not have the legal right to appeal Judge Walker’s decision that Prop 8 is unconstitutional, the appeal is over. In order to answer that question, the Ninth Circuit has asked the California Supreme Court to clarify whether California law gives Prop 8′s supporters the right to pursue an appeal when the state’s official representatives, after carefully evaluating the interests of the entire state, have made a considered decision not to appeal.

Ultimately, the Ninth Circuit must decide whether the Prop 8 supporters have a right to appeal under federal law – that is, whether they have “standing” to appeal.  The California Supreme Court may hold that California law does not give initiative sponsors the right to override the litigation decisions of the state’s official representatives.  If so, then the Ninth Circuit likely will hold that the Prop 8 supporters do not have standing.  That would mean that the Ninth Circuit would dismiss the appeal, Judge Walker’s ruling would stand, and same-sex couples would once again be able to marry in California.  

Alternatively, if the California Supreme Court were to hold that California law gives initiative sponsors the extraordinary power to bring an appeal over the objections of the Attorney General and the Governor, the Ninth Circuit would still have to decide whether Prop 8′s supporters meet all of the other criteria to have standing under federal law.  If it ultimately holds that the Prop 8 supporters have standing, then the Ninth Circuit could reach the merits of Judge Walker’s ruling that Prop 8 is unconstitutional.      

The next step after today’s ruling is for the California Supreme Court to decide whether it will accept the Ninth Circuit’s request. If it does so, it will then get briefs from both sides, and might hear oral argument as well before ruling. There is no set timeline for the California Supreme Court to rule.  In previous cases, it has taken the California Supreme Court up to two years to answer a question sent to it by the Ninth Circuit. Given the importance of this case and the real harm that inequality causes to LGBT people every day, however, we are hopeful that the Court will act quickly to restore fairness and equality for same-sex couples in California.

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Related:

* Visit the Blend for exclusive legal analysis of Federal Prop 8 trial by NCLR

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 1

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 2

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 3

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 4

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 5

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 6

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 7

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 8

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 9

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 10

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 11

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 12

* Key commentary from the PHB Shannon Minter live blog on the fed Prop 8 trial

* NCLR Analysis: Closing Arguments For Perry v. Schwarzenegger

* NCLR Analysis: Perry v. Schwarzenegger Ruling

* NCLR Analysis: Ninth Circuit Court Of Appeals Hearing On Perry v. Schwarzenegger
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NCLR Analysis: Ninth Circuit Court Of Appeals Hearing On Perry v. Schwarzenegger

BLEND EXCLUSIVE: Trial analysis by the National Center For Lesbian Rights (NCLR) Attorney Shannon Minter.


By Shannon Minter, Esq.

National Center for Lesbian Rights Legal Director

Today was the long-awaited oral argument at the Ninth Circuit Court of Appeals in Perry v. Schwarzenegger, the federal court challenge to Proposition 8. Thumbnail Link: NCLR's Legal Director Shannon MinterThe Ninth Circuit is the federal appeals court that covers California. Today’s argument was heard by a panel of three judges, who will decide whether to uphold District Court Judge Vaughn Walker’s August ruling that Prop 8 is unconstitutional.

The argument ran for almost two and a half hours, covering two basic questions:

• Do the proponents of Prop 8-and Imperial County, which is seeking to intervene in the case-have the right to appeal Judge Walker’s ruling, even though they do not represent the State of California? The legal term for this question is whether the proponents have “standing” to appeal.

• Second, is Prop 8 unconstitutional?

It is never possible to predict how any judge will rule based on the questions that are asked at argument, but overall, today’s argument seemed to go well for the plaintiffs. The panel asked difficult questions throughout and were particularly tough, on both sides, on the standing issue.  In the end, they seemed skeptical that Imperial County has standing to be in the case. They also seemed to recognize that recent U.S. Supreme Court cases raise serious questions about whether the proponents of an initiative like Prop 8 have standing.  

Some of the panel’s questions hinted that they might ask the California Supreme Court to rule on whether California law gives the proponents of a ballot measure the power to force an appeal over the objections of the official representatives of the state (the governor and attorney general). Arguing on behalf of the plaintiffs, attorney David Boies forcefully argued that even if California law would allow the proponents to defend the initiative, the proponents still could not meet the federal requirements for bringing this appeal because they cannot show that they are directly affected in any way by whether same-sex couples can marry.  

In the second hour, on the constitutionality of Prop 8, the panel’s questions focused on two general areas: the unique circumstances under which Prop 8 was passed in California — where same-sex couples had the right to marry before Prop 8 stripped that right away; and the principle established by the U.S. Supreme Court in their 1996 decision, Romer v. Evans, that a state cannot deliberately discriminate against gay people just to send a message that they are inferior.  

At least two judges seemed critical of the argument that Prop 8 can be justified based on arguments relating to procreation-which was the central defense offered by the proponents’ attorney Charles Cooper.  Repeatedly, the judges pressed Cooper on how procreation could possibly justify Prop 8 when California law gives same-sex couples exactly the same parentage rights as heterosexual couples, and has affirmatively embraced same-sex couples as equally good parents.  

Arguing on behalf of the plaintiffs, former U.S. Solicitor General Ted Olson urged the court to reach the broad question of whether same-sex couples have a fundamental right to marry under the U.S. Constitution.  In an argument that complemented Olson’s, Therese Stewart, Chief Deputy City Attorney  for San Francisco, did a brilliant job of laying out why Prop 8 is uniquely irrational because it took away an existing right, because California continues to give same-sex couples all of the substantive rights and benefits of marriage, and because the stated purpose of Prop 8 in the ballot materials was to counter the idea that being gay is “okay.”

Stewart also made a crucial point about what it means for a court to determine that the only justification for a law is “animus,” or bias, against a group of people, which would be unconstitutional. Contrary to how the proponents have framed this question in the media and in court, Stewart rightly argued that from a constitutional perspective, finding that a law was based on “animus” does not have to mean that the voters intentionally sought to harm gay people.  Rather, unconstitutional “animus” can include situations where the voters failed to think about what is really at stake for the targeted group, or failed to guard against a natural tendency toward stereotyping of unfamiliar or historically disfavored groups.

Together, Boies, Olson and Stewart were a great team and did a phenomenal job of presenting the most powerful arguments for upholding Judge Walker’s decision. There is no specific timeline for the Ninth Circuit panel to issue a ruling, but they have expedited the case up to this point, and we may see a decision with a few months.  In the meantime, unfortunately, same-sex couples in California will have to continue to live under the state’s separate-but-equal system that designates our families as second-class.

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Related:

* Visit the Blend for exclusive legal analysis of Federal Prop 8 trial by NCLR

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 1

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 2

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 3

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 4

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 5

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 6

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 7

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 8

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 9

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 10

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 11

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 12

* Key commentary from the PHB Shannon Minter live blog on the fed Prop 8 trial

* NCLR Analysis: Closing Arguments For Perry v. Schwarzenegger

* NCLR Analysis: Perry v. Schwarzenegger Ruling
Pam’s House Blend – Front Page

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Excellent analysis of Log Cabin’s DADT brief to the Supreme Court

Via TowleRoad:

At the center of LCR’s argument to the Supreme Court is that the Ninth Circuit “abused its discretion” when it granted a stay based on incorrect reasoning and a refusal to use the proper legal test for stays. An “abuse of discretion” is a tough standard to meet simply because appellate courts have discretion to issue stays. But what they don’t have discretion to do is to grant stays without requiring the party seeking the stay to prove, among other things, a “likelihood of success on the merits.” All that means is that in order to properly get the stay at the Ninth Circuit, the government had to prove that it was likely to win its appeal on the merits, likely to keep DADT as good law. The Ninth Circuit, LCR argues, didn’t really do that. Nor did the Ninth Circuit engage in the required balancing of harms. Before getting a stay, the government was also supposed to show that any hardship to the military or the government if there were no stay would outweigh any hardship to LCR with a stay. Finally, LCR points out that the Ninth Circuit accepted the government’s injury argument based on mere speculation rather than actual evidence.

LCR’s argument makes a lot of sense to me, especially since the Ninth Circuit apparently justified its stay on Judge Phillips’s decision being at odds with other court decisions on DADT and generally failed to require the government to justify a stay. A stay is an example of “extraordinary relief,” meaning that you don’t get it just because you want it, you have to prove a lot — meet a “heavy burden” — to get it. At the Ninth Circuit, the government arguably did not meet that burden.




AMERICAblog Gay

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HRC Releases Post-Election Analysis


Today the Human Rights Campaign released an analysis of the November 2nd election results as well as details on the organization’s involvement in the elections and a look toward the future in a new political environment.  The analysis and other documents are available online at www.hrc.org/2010election.

As HRC President Joe Solmonese commented last night: “Social justice movements always experience steps forward and steps back and this election turned out to be a mix of both.  Even though we will face greater challenges in moving federal legislation forward, nothing will stop us from using every tool to advance LGBT equality at every level.  Attempts to hold back the tide of the equality movement will surely put anti-LGBT leaders on the wrong side of history.”

The analysis looks at the factors behind pro-LGBT losses and how anti-LGBT candidates fared.  It further details the places in which pro-LGBT advancements are still possible and other avenues to move the ball forward on equality.  The full text follows:

2010 Post Election Analysis

The 2010 mid-term elections boiled down to the phrase made famous in Bill Clinton’s 1992 run for President – “It’s the Economy Stupid.” Voter anxiety over economic affairs created a difficult environment for incumbents and swept conservative majorities into the U.S. House and state legislatures around the country. Thankfully this election was not characterized by as much wedge-issue demagoguery as we’ve seen in the past but make no mistake, these new leaders are no friends to the lesbian, gay, bisexual and transgender community. While most races were not won or lost on LGBT issues, the equality movement may be collateral damage in the conservative wave that swept the country.

The presumptive House leadership team of Reps. Boehner, Cantor and Pence all score zeros on the HRC scorecard and many soon-to-be committee chairs have long anti-LGBT records. While the past four years of Democratic leadership stopped the most damaging legislation from seeing the light of day, there is no reason to believe that far-right conservatives won’t use every opportunity to push their narrow agenda. That job will be even harder without equality champions like Patrick Murphy in the House or Russ Feingold in the Senate.

Even though we will face greater challenges in moving positive federal legislation forward, nothing will stop us from using every tool to advance LGBT equality at every level – from administrative changes to work on the state and local level. Attempts to hold back the tide of the equality movement will surely put anti-LGBT leaders on the wrong side of history and we will continue to highlight how far this new leadership is outside the mainstream of public opinion.

November 2nd was not without its bright spots however. Senate Majority Leader Harry Reid staved off a challenge from Sharron Angle, a tea-party backed candidate who is so opposed to workplace equality she said she’d refuse contributions from corporations who give equal benefits to their employees. In California, National Organization for Marriage-backed Meg Whitman and Carly Fiorina lost to pro-equality candidates Jerry Brown and Barbara Boxer respectively.

The elections also resulted in pro-marriage equality governors in California, Maryland, New Hampshire, New York, Rhode Island and Vermont. Openly LGBT candidates fared well across the country with a record number of new, out officials including Rep.-elect David Cicilline in Rhode Island. We can use these victories as footholds particularly in pushing for statewide legal recognition of our families.

Knowing this would be a hard fought election, HRC made significant investments to elect pro-equality candidates. We endorsed 21 candidates for U.S. Senate, more than 200 candidates for the U.S. House of Representatives, 16 candidates for governor, and 14 candidates for the New York state Senate. HRC’s federal Political Action Committee contributed more than 0,000 to Congressional candidates and political committees and the organization also contributed nearly 0,000 to support pro-equality state and local candidates. We deployed 39 staff to 17 states, sent more than 3.3 million election-related action alert e-mails to HRC members and supporters and made tens of thousands of phone calls and recruited thousands of volunteers. Read more on HRC’s involvement in the mid-term elections.

Of course, the question now is “where do we go from here?” We won’t stop moving forward, because there’s more than one path to victory. When one door closes, others often open. Read a full report on our path forward which includes:

  • Putting every ounce of strength into pressuring the Senate to repeal “Don’t Ask, Don’t Tell” before the end of the year;
  • Blocking harmful bills and continuing to introduce pro-equality legislation – and using both to make sure voters knows how out of touch radicals in the House really are;
  • Continuing to put pressure on the Obama administration to make policy changes that don’t require an act of Congress, following our “Blueprint for Positive Change,” where we’ve already made major progress;
  • Fighting for marriage equality and relationship recognition in states where there are now open doors – and continuing to expose NOM’s extreme agenda; and
  • Combating bullying in our schools and working with religious communities to amplify the voices of pro-equality clergy. We’re also going to enable more gay couples to adopt children and build loving families, and work to make corporations and hospitals more equal. And we will shine a light on bigotry and mobilize hundreds of thousands of supporters to speak out against it.

There is a path forward. And that path requires HRC – and you – to continue fighting tirelessly for justice. Join us.


Human Rights Campaign | HRC Back Story

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We (Almost) Have Marriage Equality: An Analysis of Judge Walker’s Prop 8 Stay Ruling

Guestblogger ARI EZRA WALDMAN

Ari weighs in on the ruling handed down earlier today by Judge Walker.

Northern District of California Judge Vaughn Walker will enforce marriage equality in California…as of 5 pm Pacific on August 18, 2010.  But for now, same-sex marriages will remain on hold.

Walker But, wait a minute. If the proponents of Prop 8 lost so comprehensively on August 4, why continue the stay? In the words of Judge Walker himself, marriage equality won the day. So, why would a judge delay the enforcement of his own decision. It is really a matter of procedural fairness. Judge Walker recognizes that this is, to paraphrase Vice President Biden, a big [blank] deal and it is only fair in our system to give the parties that lost at trial the opportunity to file their papers with the court of appeals. It also is a sign of respect for the appellate court, which now has time to consider any motion for a stay that they might here in the near future. Plus, this kind of ruling is common, even in civil cases.  It may be frustrating, but Rome wasn't built in a day, and neither were civil rights.

Regardless of the one-week extra delay in same-sex marriages in California, this decision was another momentous step forward for marriage equality. And here are five reasons why.

1.  The stay was denied. 

When lawyers refer to a "stay", they mean a delay in enforcing something. Outside of one more week, which Judge Walker found necessary "to permit the court of appeals to consider the issue in an orderly manner," the stay was denied. Prop 8 proponents had the responsibility of showing that allowing same-sex marriages would do so much harm to them that to go forward with same-sex marriage would be devastating. It's a high hurdle to jump, and Prop 8 proponents barely got off the ground. They admitted that they could not identify any harm to them if marriages licenses were issued. In fact, they relied on apparent harm to same-sex couples, caused by any uncertainty around the availability of marriage rights between now and any appeal. I am heartened that they are thinking so altruistically about same-sex couples here. But, that's not a harm that Prop 8 proponents will feel. In fact, it's barely a harm to anyone at all.

To boil down Judge Walker's ruling, he said that he looked at the possible damage to Prop 8 proponents — all of which he found hypothetical or unsupported at trial — and at the possible damage to same-sex couples — their lack of access to a fundamental right — and found that the damage to same-sex couples was considerably more substantial.

2.  Prop 8 proponents may not "likely" succeed on appeal.

Prop 8 proponents had to show that their appeal had at least a "likelihood" of success. That's a fancy way of saying that the only way a stay can be granted is if your appeal has merit. First, Judge Walker's decision on August 4 so eviscerated every piece of the Prop 8 proponents' case that he could not see any likelihood of success.  

3.  Prop 8 proponents may not even be able to appeal.

Second, and more importantly, Judge Walker notes that Prop 8 proponents may not even have the right to appeal. Lawyers call it "standing", which is not a homage to an R.E.M. song, but rather a way to identify those parties who have been hurt by an adverse ruling at trial and, thus, can ask a court to fix it. As noted here earlier, Governor Schwarzenegger and Attorney General Brown filed papers asking Judge Walker to remove his temporary stay. They are California in this case, they are the ones that have to change their practices as a result of the ruling,  and they don't even want to wait to do so. They want to start issuing marriage licenses to same-sex couples.  Since it is the State of California and not a collection of anti-marriage equality advocates that issue marriage licenses, the only parties that may have the ability to ask the court of appeal to review Judge Walker's decision are those representing the State of California.

Think of it this way. Let's say the San Diego Padres win a game against the New York Mets due to a botched call by an umpire. The win propels the Padres into first place ahead of the San Francisco Giants.  Who can appeal the win to the commissioner's office? Only the Mets. The botched call directly harmed them. They were the injured party. The Giants may have also been affected, but the adverse call didn't happen to them. To put it another way, a man is married to a woman. The man has an affair. Only the embattled wife can sue for divorce. The man's mistress can't ask a court to divorce the couple.

This is important for obvious reasons. The governor's and attorney general's decision to ask Judge Walker to lift the stay pretty much means they agree with the decision and do not want to have any part of an appeal to the Ninth Circuit. The remaining defendants in the Prop 8 case — anti-marriage equality advocates — are the only ones left. They were given a chance at trial to identify what kind of harm they would face if Prop 8 were overturned, but they failed to show any evidence of real harm.  Without any harm, not only do they lose their case at trial, but also they may lack the right to appeal.

And, in 1997, the Supreme Court has indicated that they agree. It was a case that involved a vote on making English the official language in Arizona. The Supreme Court found that initiative proponents, like the anti-marriage equality advocates in this case, do not automatically have the right to appeal a court decision overturning that initiative.

So, will this case be appealed? Don't be so sure.

4. This is another well-reasoned and well-supported decision from Judge Walker.

Nevertheless, Prop 8 proponents will try to appeal. They will also try to get the Ninth Circuit to do what Judge Walker refused to do, i.e., grant the stay. But, just like I discussed after Judge Walker's ruling last week, his decision was so well-written that an appellate court would be hard-pressed to defy him. I see that again here. Prop 8 proponents' inability to provide any evidence that they would be harmed by marriage equality in California is all over this decision and it was the fatal flaw in their argument, both at trial and for a stay. There simply is not enough evidence of real or expected harm to justify a stay.

5. This was a reaffirmation of marriage equality.

Judge Walker said it best: "[T]he trial record left no doubt that Proposition 8 inflicts harm on plaintiffs and other gays and lesbians in California. Any stay would serve only to delay plaintiffs access to the remedy to which they have shown they are entitled." Amen.

What happens now? 

Prop 8 proponents have already stated on CNN, MSNBC and Fox News that they plan on asking the Ninth Circuit for a stay and, if necessary, the Supreme Court. But any appellate court will first have to address the threshold question of whether they have the right to ask a higher court for a stay. It is unclear whether they have standing to appeal, as discussed above. Given that, here is one possible scenario of how this will play out, step-by-step:

Motion to Ninth Circuit for stay. If denied, motion to the Supreme Court. If granted, filing papers for a substantive appeal of the decision itself. If the Ninth Circuit finds Prop 8 proponents have no right to appeal, they may appeal that ruling to the Supreme Court, or the case ends with Judge Walker's ruling in place permanently. This may take 1-2 years.

If the Ninth Circuit finds Prop 8 proponents do indeed have the right to appeal, a three-judge panel of the Ninth Circuit will hear that appeal. Either way, the case will probably be then heard by a larger panel — perhaps, 11 — of judges. Then, the case may go before the Supreme Court. This may take up to 3-5 years.

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His area of expertise are criminal law, criminal procedure, LGBT law and law and economics.


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—  John Wright

It’s In: An Analysis of the Proposition 8 Ruling

Guestblogger ARI EZRA WALDMAN

Ari is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His area of expertise are criminal law, criminal procedure, LGBT law and law and economics.

Olson_boies Proposition 8 is a violation of due process and equal protection. Judge Vaughn Walker has made that abundantly clear.

But what is the immediate result of this ruling? Judge Walker concluded his Order by stating that "California is able to issues marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result." And, I just checked. My sister's heterosexual marriage has not been destroyed either.

That said, it is highly unlikely that any same-sex marriages will be conducted tomorrow.  As posted here earlier, Proposition 8 supporters have already filed a pre-emptive motion to stay Judge Walker's order pending their appeal to the Ninth Circuit Court of Appeals.

This should not dampen our elation.  This decision is momentous and a giant step forward toward legal recognition of our equal rights.

THERE WILL BE UPDATES TO THIS POST…REFRESH THIS POST FOR FURTHER ANALYSIS AS I CONTINUE TO GO THROUGH THE RULING…

UPDATE:  The Devil is in the Details

Judge Walker's decision runs 138 pages.  It is well-reasoned, exhaustively cited and drafted with one eye on its Main Street ramifications and another eye on the judges of the Ninth Circuit Court of Appeals.  In other words, this Order establishes a comprehensive factual record for review.  And that, as any appellate lawyer knows, is going to be the source of our salvation or the harbinger of our defeat.

When the decision of a trial judge like Judge Walker goes up on appeal, his legal conclusions are reviewed by the appellate court de novo, or "from the beginning."  That means that Judge Walker can conclude that Prop 8 violated the Equal Protection clause and the Due Process clause for this or that reason, but appellate judges are not bound by his conclusions.  However, Judge Walker's factual findings — such as the effect of same-sex marriage in Massachusetts or statistics on thriving children of same-sex couples — must be accepted by the appellate court unless they are "clearly erroneous."  A clearly erroneous finding of fact is looking up at the sky, seeing it is blue and having a weatherman tell you it's blue, but concluding that the sky is, indeed, red.  We do this because it was Judge Walker who heard the evidence and evaluated the trustworthiness of the witnesses with his own two eyes.

Judge Walker's factual findings are breathtaking, if only for their sheer depth.  From page 54 to 109, Judge Walker lays out his findings, eviscerates the testimony of anti-marriage equality experts and emphasizes the long list of statements where Prop 8 opponents conceded their factual case.  In my years as an appellate litigator, I have never seen a factual record as detailed and well-documented as this.  My compliments to Judge Walker and his clerks. 

Let me highlight a few striking points here:

1.  This case is about civil marriage.  Religious belief has no place here.

Right off the bat, Judge Walker found that "[m]arriage in the United States has always been a civil matter" (p. 60, para. 19).  The pen is indeed mightier than the sword.  We watched with dismay, anger and frustration as Prop 8 supporters screamed that marriage equality laws would forces churches and synagogues to consecrate relationships contrary to their liturgy.  In one line, Judge Walker does away with this nonsense.  What we are dealing with here, he states, is civil marriage.  After all, it is the "[c]ivil authorities [who] may permit religious leaders to solemnize marriages but not to determine who may enter to leave a civil marriage." (p. 60, para 19).  The supremacy of civil marriage takes this conversation out of the church and onto the town square.

2.  Marriage is a state of commitment, not a construct in which to have children.

Just as important is Judge Walker's findings about the nature of marriage. "Marriage is the state recognition and approval of a couple's choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents" (p. 67, para. 34).  Absent from this definition, based on extensive citations to evidence offered at trial, is marriage based on procreation or gender-specific roles.  A marriage is a partnership based on deeply held emotional love and, as an institution, channels benefits to the married couple, their dependents and society at large.  What's more, each of those benefits — facilitating order, creating a realm of intimacy, creating stable households, providing children with support structures, assigning caregivers, facilitating property ownership and incentivizing healthy behaviors — exists irrespective of the gender and sexual orientation of the married couple (pp 67-71).

3.  Same-sex couples are just like opposite-sex couples.

The entree to these appetizers came later.  Judge Walker found that "[s]ame-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.  Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners.  Standardized measures of relationship satisfaction, relationship adjustment and love to do not differ depending on whether a couple is same-sex or opposite-sex" (p. 77, para. 48). 

And on the seventh day, he rested.

Seriously, though, this profound description of equality is at the heart of the marriage equality movement.  Judge Walker cites Prop 8 supporters' admissions at trial that gay partnerships are loving and commitment and that the capacity to commit and love "does not depend on the individual's sexual orientation" (p. 77, para. 48(d)).  We are all the same and we all deserve to be treated as such.

4.  Domestic partnerships insufficiently recognize those relationships.

Since marriage is not merely an economic union, or a procreative one, for that matter, domestic partnerships that assign certain economic benefits of marriage to nonmarried cohabitants is a separate, unequal and insufficient substitute.  "Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States" (p. 80, para. 52).

Judge Walker recognizes that we do not want to marry the loves of our lives for the joint tax return or the prospect of doubling our wardrobes.  That might be part of it, but it's not the whole story.  Citing expert testimony about the cultural importance tied to marriage, Judge Walker finds that marriage is greater than the sum of the economic rights associated with it.  And, since same-sex couples are no different in their love and commitment than opposite-sex couples, there seems to be no reason to exclude them from this institution.

In the end, it is hard to accept these facts and not conclude as Judge Walker did.  Nothing here is clearly erroneous and any appellate court will be hard-pressed to upset any of these factual findings.

UPDATE:  The Law Likes Equality

The United States Constitution has an annoying habit of defaulting to equality.  There are times when unequal treatment is legitimate; we don't allow 14-year-olds to vote, for example.  But, for the most part, the Fourteenth Amendment sets the foundation for treating each other the same, regardless of race, religion or gender.  Now, with all cautious optimism aside, Judge Walker's decision allows us to add sexual orientation to that list.

Judge Walker's legal conclusions are simple.  Proposition 8 violates the Equal Protection clause and the Due Process clause because in denying a homosexual's right to marry a person of the same sex as he or she sees fit, Prop 8 classifies and discriminates against a particular class of people for no legitimate reason.  It's a little more complicated than that, so let's go through it step by step.

Due Process.  As previewed earlier, Judge Walker was faced with the notion that the freedom to marry has previously been considered a fundamental right and abridgments of fundamental rights must pass strict scrutiny to pass constitutional muster.  But, the issue is not whether the right to marry is fundamental — no one disputes that (p. 110); rather, the question is whether same-sex couples are seeking to exercise that right to marry or are they trying to establish a new right.  Prop 8 proponents argued that the right to marry someone of your same sex is a new right and, thus, not fundamental.  Judge Walker disagreed.  The only factor distinguishing same-sex and opposite-sex couples is the natural ability to procreate, but "[n]ever has the state inquired into procreative capacity or intent before issuing a marriage license" (p. 111).  Instead, what has remained constant about marriage is not the parties to a marriage — it was not long ago that blacks and whites could not marry each other — but that two individuals freely commit to one another.  The true shibboleth of marriage, then, is love and commitment, not procreation.  As such, this is a fundamental right.

So, the plaintiffs simply want California to recognize their fundamental right to marry whomever they choose.  That itself does not mean Prop 8 is unconstitutional.  Laws can interfere with fundamental rights and not run afoul of the Due Process clause as long as they pass strict scrutiny, that high hurdle that, in legal lingo, requires the law to be "narrowly tailored to a compelling government interest."  In other words, the law has to be specific, engulf as few people as absolutely necessary in order to do something the government really must do.

Prop 8 comes nowhere close to that standard.  Once again, the facts offered into evidence at trial play an important role.  Unfortunately for Prop 8 proponents, they offered no facts.  When Judge Walker asked for their evidence, Prop 8 proponents declined to prove the compelling need, relying instead on "the nature of traditional marriage."  On that "minimal evidentiary presentation," Prop 8 could not pass strict scrutiny.

One down.

Equal Protection.  Judge Walker held that even under the much lower rational basis test, Prop 8 does not pass muster.  He was thorough enough, however, to include a strict scrutiny analysis just for good measure.

Under rational basis review, a law can discriminate as long as it does not target a specific suspect class or impairs a fundamental right and is "rationally related to some legitimate government interest."  That sounds complicated, but it's really pretty easy to jump that hurdle.  Most laws will make it because there are plenty of rational reasons to do things.  But a reviewing court cannot rubber stamp a law simply because someone says their justification is rational.  Not every justification is rational.  In particular, discriminating against a particular group of people simply because you don't like that group is neither rational nor related to a legitimate government motive.

The trial evidence, however, suggests that gay people are a suspect class because they have "experience[d]iscrimination based on unfair stereotypes and prejudices specific to sexual orientation."  They have "historically been targeted for discrimination because of their sexual orientation" and that discrimination is ongoing.  And Prop 8 falls into that category.  Proponents argued that it couldn't discriminate against gay people because Prop 8 never mentioned the word gay.  That's being too cute by half.  By defining marriage in terms of opposite sex, those who would choose to marry someone of the same sex — only homosexuals fit that category — have had their rights taken away.

But that is what lawyers call "dicta", or, conclusions of law in an opinion that do not bear directly on the ultimate decision.  Judge Walker included it for a reason, though.  By saying that Prop 8 merits strict scrutiny because it targets a class of people that should be considered a suspect classification, Judge Walker is setting the stage for arguments on appeal and emphasizing how ill-conceived and irrational Prop 8 really is.  It's like losing two baseball games 1-0 and 20-0.  You still lost both, but in the second game, you embarrassed yourself.

Under a rational basis review, Prop 8 could not even advance a single rational government interest.  Whatever marriage might have been "traditionally," tradition alone cannot be a rational basis.  Judge Walker cited precedent for that.  He also found that the "tradition" of restricting marriage to opposite sex couples does, in fact, harm the state's interest in equality, stable households, property distribution and caregiving, to name just a few.  Nor is it rational to uphold Prop 8 because same-sex marriage would amount to sweeping social upheaval.  There was no evidence for that.  Massachusetts and Connecticut, after all, have not fallen into the Atlantic Ocean.  And, banning same-sex marriage does not nothing for the state's interest in encouraging sex within marriage.  If anything, by prohibiting certain couples from marrying, Prop 8 encourages extra-marital sex.  Nor can moral objection to same-sex relationships or same-sex conduct justify discrimination.  Pure animus is irrational and certainly not a legitimate state interest.

UPDATE:  What Now? And What Does It All Mean?

Logistics

You might be wondering how Judge Walker's well-reasoned and thorough opinion might impact our world tomorrow.  In a word, it won't.  While the Order allowed California to start issuing marriage licenses to same-sex couples, the relief has been stayed pending appeal to the Ninth Circuit.

The parties will prepare their briefs in the coming months and deliver oral argument before a 3-judge panel on the Circuit.  Due to the high profile nature of the case, any decision by the panel will likely result in "en banc consdieration" by the entire Ninth Circuit.  That means that after one round of appellate hearings before three judges, another round in front of every Ninth Circuit judge will likely take place.  Then the case may be fast-tracked to the Supreme Court.

That is, unless the issue becomes moot.  How?  Marriage equality supporters are already gearing up for a push to overturn Prop 8 on the 2012 ballot.  If current polling is accurate in suggesting that a majority of Californians now support marriage equality, a pro-equality victory at the ballot box before the Supreme Court takes the case may obviate the need for a Supreme Court hearing.

Some Substantive Questions

This decision is momentous.  Do not forget that.  Never before as a federal court declared that the gay community warrants special protection and never before has a federal court declared so clearly that marriage discrimination is so irrational.

But there is a legal mine field awaiting marriage equality lawyers going forward.  For one thing, the Supreme Court, as currently constituted, is a conservative institution and among the most conservative Supreme Courts in our history.  It is more than a little unnerving to realize that our rights might ultimately rest in the hands of Bush appointees.

More specifically, strict scrutiny is a tough sell.  Supreme Courts since the 1970s have moved away from strict scrutiny jurisprudence with some zeal even to the point of contorting themselves into pretzels to create a new type of standard of review — so-called "intermediate scrutiny" — for gender classifications simply because the Court could not muster a majority for expanding the list of Warren Court era "suspect classifications."  Whether the Court will be willing to do today what it would not do decades ago is an open question.

Therein lies the genius of Judge Walker's opinion.  He touches on strict scrutiny but doesn't need it.  His strategy may prove to be our saving grace in the end.


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—  John Wright