Breaking: Judge Walker Finds Prop. 8 Unconstitutional. But Will the Decision Stand?
In what appears to be a stunning decision (which I haven't read yet), the U.S. District Court for the Northern District of California has held that Proposition 8 is unconstitutional under both the due process and equal protection clauses. The decision is available here.
According to N.Y. Magazine, the key passage is:
plaintiffs would lose at trial, but that they would lose on appeal. And frankly, it's noteworthy whenever a district court concludes that any government justification fails to meet the rational basis test--much less those in connection with so controversial an issue and so historically entrenched a practice. Given that this case is almost certainly going to be decided at the Supreme Court, Judge Walker's decision may sweep too broadly for comfort.
According to N.Y. Magazine, the key passage is:
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.Of course, the concern of many gay rights activists is not that the
plaintiffs would lose at trial, but that they would lose on appeal. And frankly, it's noteworthy whenever a district court concludes that any government justification fails to meet the rational basis test--much less those in connection with so controversial an issue and so historically entrenched a practice. Given that this case is almost certainly going to be decided at the Supreme Court, Judge Walker's decision may sweep too broadly for comfort.
Labels: Prop. 8
posted by Carbolic at 1:46 PM
18 Comments:
I'm switching through the channels, and while every news channel is covering this, Glen Beck is talking about black racism and buying gold. Good stuff.
Also, anyone notice just how thorough this decision is? Thumbing through, its got a lot more substance than other district court opinions I've read. Probably a good sign for the next couple of rounds.
I fully admit to having skipped the entire background and factual findings portions of the opinion, because I think the conclusions of law are the most interesting, and of course, that's where it will all go down on appeal.
I would be curious to hear what other people think. My take-aways were:
1. Due process. No surprises here -- Chief Judge Walker cites Loving v. Virginia to apply strict scrutiny in striking prop 8 down. This (to me) seems like the real legs of this opinion, and if this became a SCOTUS case, it seems to me that DP would be the strongest argument by which to pursued the conservative Justices.
2. Equal protection. Some surprises here, or at least I thought so.
First, I can't tell -- did Walker conclude that sexual orientation is a suspect class? The opinion purports to reserve the question . . . then goes on to analyze it in some detail. He's right that sexual orientation meets the criteria for recognizing a new suspect class. On the the hand, I'm sure he is constrained by precedent that says sexual orientation is not suspect. Maybe he is trying to tee it up for a higher court? Anyone?
Second, the conclusion that Prop 8 cannot survive rational basis review: I'm not persuaded. To be clear, I believe the law is irrational and unjust, but that doesn't mean it cannot survive rational basis review. I agree with the spirit of the discussion on page 126, but I just don't think that's how the law works -- or at least, that's not what I learned at Boalt about how the law works. (You may have to read page 126 for this to make any sense.) If the standard on page 126-27 was correct, then no legislature could rationally return to a previous set of legal norms. Further, Walker asserts that because a law "advances nothing" by adhering to tradition, a law which merely advances tradition cannot survive rational basis review. That might be true, but that's not quite the legal standard; the question is whether a legislature *could have concluded* that the law advances something by enshrining tradition. This theme is picked up in earnest on page 129 where, again, the question Walker asks is whether the law actually advances a particular interest when (I think) what he should have been asking is whether legislature could have concluded the law advances that interest. Slightly different inquires with radically different conclusions.
Third, the Heller cite: I loved Walker's assertion that "tradition alone, however, cannot forma rational basis for law" . . . . for which Walker cited (!) D.C. v. Heller. How is that for a stick in the eye, eh?
"Due process. No surprises here -- Chief Judge Walker cites Loving v. Virginia to apply strict scrutiny in striking prop 8 down. This (to me) seems like the real legs of this opinion, and if this became a SCOTUS case, it seems to me that DP would be the strongest argument by which to pursued the conservative Justices."
Meh. Seems like a pretty poor argument to me. Granted I have not read the Prop 8 decision, but my recollection of Loving is that strict scrutiny was applied because race, not marriage, was involved. Unless I'm missing something, there is a fairly large leap in logic to go from applying strict scrutiny based on race to applying strict scrutiny to same sex couples. I was really expecting intermediate or "heightened intermediate" on this one.
3:25, Loving did both. Virginia's law was struck down on (1) equal protection grounds, because (as you said) it could not survive strict scrutiny of the race-based classification, and (2) on due process grounds, because the right to marry whom we choose is fundamental.
It is (2) that seems to me to bear most directly here.
A less teenybopper-looking version is available through the NYT, if you don't like your legal reading to come with pink frames: http://documents.nytimes.com/us-district-court-decision-perry-v-schwarzenegger
Also, I think the findings of fact are hugely important here. Higher courts are stuck with these factual findings, not so much the conclusions of law.
I'm having a hard time with your analysis, Patrick. Under your standard, it seems, if there is no legitimate interest, but the legislature thought it had one, that would make the law constitutional. So, judges would be impotent to strike down arbitrary laws that serve no legitimate purpose. That doesn't seem correct to me, but I'll assume you're correct for argument's sake.
Even under your standard, it seems like the conclusion as to the constitutionality of the law is exactly the same, and certainly not "radically different" as you claim. The whole point is the legislature cannot rely on tradition alone to justify a law, and therefore, they cannot rationally conclude "that the law advances something by enshrining tradition" if they seek to further no other interest.
As such, your statement that "no legislature could rationally return to a previous set of legal norms" is just incorrect. They COULD rationally return to a previous set of legal norms, as long as the legal norms in themselves serve legitimate purposes.
That's all fair, 5:55.
Two things, I guess. First, I thought that in considering a challenge to a statute the court doesn't (usually) consider what the legislature's actual purpose was. Nor does it consider how well the law in question actually is suited to a legitimate purpose. Rather, it asks whether a legislature could have concluded that the law in any way serve any government purpose. The court is free to posit that purpose during review, and even if the court doubts that the law is an effective way of furthering the legitimate government interest, the law must be upheld if a legislature could have thought so.
(In this case the legislature is the voters in California. Of course.)
Second, as you pointed out, maybe one way to look at CJ Walker's discussion in the 120's is that he concludes that upholding tradition, for tradition's sake, is not a legitimate government purpose. Therefore, we need not consider whether the legislature could have thought that Prop 8 furthered tradition -- tradition in this case cannot be a stand-alone legitimate government purpose. (Heller cite.) Doesn't that seem a little weird? Maybe that turns out to be correct, but it was one part of the opinion that caught me by surprise. Imagine a challenge to all the ceremonial aspects of our legal system, like observing flag protocol in courtrooms, legislative prayers, or having judges preside over naturalization proceedings. We uphold these practices precisely for tradition's sake.
The last paragraph you wrote is spot on. I was wrong on that point. A legislature could indeed return to any legitimate set of traditional norms. It's just that under Walker's analysis they couldn't to it only for the sake of returning to tradition. As you pointed out, the 'whole point' of this portion of Walker's opinion was that a legislature cannot relay on tradition alone to justify a law. I guess I feel like enshrining tradition is a legitimate government purpose (isn't that kind of the backbone of the whole system?), but maybe I'm wrong.
Finally, you are correct that the ultimate conclusion (the law isn't constitutional under the equal protection clause) is the same. As someone who did red all the findings of fact and evidentiary rulings pointed out to me earlier today, its not like the proponents of prop 8 did a very good job of advancing their case. They may well have failed to show that anyone could conclude that the law advances any legitimate interest at all.
Patrick, your characterization of rational basis is a little off. What you are describing is a basis, not rational basis. The relevant standard is from Justice Kenned, who wrote in Romer, "its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests." 517 U.S. at 632. That is precisely the finding of fact made by Chief Judge Walker in the case of Prop. 8.
As I read him, Vaughn Walker's primary route to concluding that there is no rational basis for the proposition is through analysis, and rejection, of six potential rational bases (or five plus one "etcetera" basis). For anyone who disagrees with his conclusion, which basis is appealing, or is there something he leaves out?
The whole opinion is worth reading. (1) The traditional purpose conclusion is tied up with the findings, which are that there used to be distinctions between gender roles in marriage (coverture, differential ages of consent), but those have gone by the board. The requirement of different genders is, Judge Walker finds, an artifact of that time and now lacks rational basis. (2) Don't miss his appraisal of the expert testimony, which is pretty cool. (3) and also don't miss the cite to Everson (I missed the one to Heller: thanks Patrick!)
Armen, that's essentially how I thought RB review works -- the confusion (probably on my part) has to do with the extent to which preserving tradition for the sake of tradition is a legitimate gov interest.
I haven't had the chance to read Judge Vaughn's full opinion yet, only excerpts but Patrick, on the question of what constitutes a legitimate government interest, I'd note that Kennedy implicitly rejected "tradition" and "moral values", standing alone, as a rational state interest in Romer v. Evans, which was Scalia's argument.
If you read Scalia's dissent in that case, he goes on and on about how the Colorado initiative (which prohibited antidiscrimination laws protecting gays and lesbians) was simply an expression of moral disapproval, characterizing the initiative as, variously, a legitimate effort to "preserve traditional sexual mores," an expression of "moral disapproval of homosexual conduct," an expression of "the view that homosexuality is morally wrong and socially harmful," an "effort by the majority of citizens to preserve its view of sexual morality statewide," and a "reasonable effort to preserve traditional American moral values." For Scalia, this was sufficient to preserve the Colorado law under a rational basis test.
None of this budged Kennedy's majority opinion one bit, which found instead that the initiative could only be explained by animus against a disfavored group.
Admittedly, Kennedy didn't explicitly reject "tradition" or "morality" as a rational basis, but its implicit in the holding rejecting Scalia's argument.
Indeed, rereading Romer and Lawrence just now, I want to challenge the despair about what happens next at the S Ct. I want to go on record right now and predict that, when this gets to One First Street, Vaughn gets Kennedy's vote. (And therefore likely, but not certainly, a majority).
Kennedy is stubborn, cosmopolitan, grandiose, imbued with a grand sense of self and history. He'll be 76 or 77 when this gets to him, and it may very well be one of his last cases, his swan song. No way he wants to go down in history as the 5th vote for Plessy when he can be the author of Brown.
i favor same sex marriage so, yeah!
but. that's not rational basis analysis. it just isn't. so if the Supremes want to have intellectual integrity, they'll have to ratchet things up to intermediate scrutiny. Kennedy is exactly the man to do that. another "yeah."
the left has had fun calling the Roberts court "activist." to do that, they've redefined "activist" to mean "any time the court overrules the democratic process." so i expect that the balkin's and chemerinsky's won't be pushing the "activist" meme regarding this decision.
I have been without internet access for a week, and this news was the best welcome back I could have asked for. I think Walker's opinion was well-reasoned and thorough, and its language will be difficult to poke holes in on appeal.
I thought the most crucial portion was the factual findings, which--as I understand it--are much more difficult to overturn on appeal (right?). If you accept his 100+ pages of premises (and in 2010, you pretty much have to), it's pretty tough to disagree with his conclusions.
Of course, people's reactions to this issue are anything but logical.
Hey, remember how we were all talking about Judge Walker's alleged sexual orientation and how it didn't really matter but opponents of same-sex marriage would make a lot of hay over it if he struck down Prop 8? Well done, Nostradamus: http://www.sltrib.com/sltrib/home/50065222-76/gay-walker-judge-case.html.csp
My favorite quote was this:
“Here we have an openly gay federal judge, according to the San Francisco Chronicle, substituting his views for those of the American people and of our Founding Fathers who, I promise you, would be shocked by courts that imagine they have the right to put gay marriage in our Constitution,” said Maggie Gallagher, chairwoman of The National Organization for Marriage, a group that helped fund Proposition 8.
Why yes, Maggie, I imagine they would be shocked by this. You know what else they would be shocked by? The internet, black people owning land, hospitals, automobiles (see also: horseless carriages), showers, judges who don't wear terrible wigs, roads, football, electricity (except Franklin), air travel, the state of Texas, a lot of the other states, and finally, women with jobs, including yourself. In fact, I bet if Washington read this in the Ye Olde Boston Herald or whatever, his first though would be, "My, but Maggie is a strange name for a man."
Maybe what would shock the founding fathers is not a very good barometer of sound public policy in 2010.
Ted Olson just made me one proud Berkeley alumnus. Well done, old man: http://www.youtube.com/watch?v=EJwSprkiInE
Just heard that Senator Stevens was in a plane crash. My thoughts go out to his daughter, alumna Lily Stevens Becker.
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