The Proposition 8 Ruling (in simple language)
On August 4, 2010, Federal Judge Vaughn R. Walker ruled that California’s Proposition 8, which prohibits California from recognizing same-sex marriage, is unconstitutional. The ruling was stayed pending appeal—which means that nothing will happen until a Federal Appeals court reviews it. As you might imagine, it will be appealed. The ruling itself is 138 pages long. I’ll summarize.
The previous lawsuit challenged Proposition 8 on procedural grounds. My post on that case is here. The California Supreme Court disagreed with me. Since the California Supreme Court gets the final say on the California Constitution, it got the last word.
The new suit was brought by two same-sex couples on different grounds. And, since it was brought in Federal court, the California Supreme Court doesn’t get a say at all. Something strange happened. California’s government was sued. The Attorney General said, essentially, “I agree that this thing is unconstitutional.” The other government groups said, “I’m not going to bother defending this.” So did a number of other people, including “ProtectMarriage.com - Yes on 8.”
The people who brought the lawsuit (“the Plaintiffs”) claimed two things. First, they claimed that marriage is a fundamental right under the 14th Amendment of the U.S. Constitution. (There is some decent precedent on this—the only question is whether the protected marriage is the one man/one woman kind of marriage). If the 14th Amendment protects same-sex marriage, the court reviews the case using “strict scrutiny” which I’ll discuss below.
Second, they claimed that Prop. 8 discriminates against gay men and lesbians. Generally, the state is allowed to discriminate—but it has to have an adequate reason to discriminate.
For example, racial discrimination is still okay in prisons to prevent gang-violence along racial lines. Since race is what’s called a “suspect class,” the government needs to have a really, really good reason to discriminate. (“Narrowly tailored to a compelling government interest.”)
Gender, on the other hand, is only a “quasi-suspect class” so it gets “intermediate scrutiny.” This means that the state needs to have a pretty good reason to discriminate. For example, we can have gender-segregated bathrooms but not race-segregated bathrooms. (The discrimination must “further an important government interest in a way that is substantially related to that interest.”)
Most things get “rational basis review.” We don’t really have a history of discrimination of people who have brown hair—so hair color falls into this “everything else” category. This means that the government can discriminate so long as it has an actual reason. (“Rationally related to a legitimate government interest.”) Rational basis scrutiny generally means that the government wins … unless the government’s goal is not a legitimate government end or its reasons are so laughably horrible that it is irrational.
There is a point to this digression. The question raised was whether sexual orientation is a “suspect class,” a “quasi-suspect class,” or a not really suspect class. The most recent Supreme Court that weighed in on it said that rational-basis scrutiny applied (but still overturned a Colorado Constitutional Amendment on the grounds that discriminating against gays was not, in itself, a legitimate government interest). The Plaintiffs claim that strict scrutiny should apply because sexual-orientation is a protected class. Since this is a fairly extreme claim, they also said that Prop. 8 is irrational or not based on a legitimate government purpose. (In this context irrational means that there are no rational reasons—which is a very high bar. Similarly, “legitimate government purpose” can be very broad. It does not, however, include promoting a religious view point.) The 9th Circuit—which is binding law in this case—seems to say that intermediate scrutiny should apply.
A trial happened. This means that the judge made findings of fact. He found that there was no evidence that Prop. 8 served a legitimate government interest. This is important because the case will be appealed. The appellate court will review the judge’s legal reasoning without giving any deference to what the judge decided. (“De novo”.) However, the factual findings will remain intact unless the trial judge did a terrible job. (“Abuse of discretion.”) When the trial court found the testimony of the anti-gay-marriage expert unreliable, it will keep that “unreliable” label through appeal. And when the judge says, “the trial evidence provides no basis” for something there will continue to be no evidence unless the appellate court finds an abuse of discretion.
The court found no basis for the claims that:
- California has an interest in refusing to recognize marriage between two people because of their sex
- California has an interest in differentiating between same-sex and opposite-sex unions
It also found that Proposition 8 could only be supported by a moral disapproval of gay people.
I should point out that Judge Walker knew the case would be appealed. His ruling essentially written to survive an appeal. For example, rather than disqualifying one of the anti-gay-marriage experts who lacked relevant degrees or peer-reviewed publications, he waited to decide whether the expert was qualified and determined that 1) the expert was not qualified, and 2) that even if the expert was qualified, he wasn’t credible.
Because an appeal is virtually guaranteed, the most significant portion of this case is the findings of fact. As the legal maxim goes, bad facts make bad law. And Judge Walker laid out some very good facts. He found that Prop. 8 served no legitimate interest and that it was passed for the purposes of discrimination and advancing a private moral or religious agenda.
Judge Walker also makes these legal findings:
- Same-sex marriage meets the historical requirements to be “marriage” rather than some new thing.
- Domestic partnerships are not close enough to the same thing as marriage.
- Prop. 8 does not serve a legitimate government interest—let alone a compelling government interest.
- Prop. 8 discriminates on both sex and sexual orientation.
- The highest level of scrutiny should be applied.
- Even if we used the lowest level of scrutiny, Prop. 8 would fail because Prop. 8 satisfies no government interest.
- A private moral view that same-sex couples are inferior to opposite-sex couples is not a proper basis for legislation
Proposition 8 was ruled unconstitutional.
So what happens next?
Nothing happens yet. The 9th Circuit Court of Appeals will review the case. After that, the U.S. Supreme Court will probably review it, regardless of what the 9th Circuit says. If the current ruling survives that, same-sex marriage will essentially become legal in every state. There was nothing to limit this holding to Prop. 8.
Will it survive appeal?
Maybe. The factual findings, as I mentioned, were pretty specific. And the opinion is quite persuasive. But if the Supreme Court doesn’t feel like legalizing gay marriage everywhere, it’s not going to, regardless of how well the facts were laid out.
Some portion of the ruling will probably be narrowed. I would expect the court to choose a level of scrutiny other than strict scrutiny for sexual orientation discrimination.
This opinion has a very good chance of surviving appeal. On the other hand, the current Supreme Court has been handing down some very narrow rulings. This Prop. 8 opinion is pretty sweeping—so the court might either reverse it or find a way to reach the same conclusion on much more narrow grounds.
Was this judicial activism?
If “judicial activism” means that a judge did something conservatives didn’t like, then yes, it was judicial activism. Aside from that, this was a very well-reasoned opinion. Everybody got a fair trial. And one side won resoundingly.