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There is much to say about Judge Walker's decision today striking down Prop 8 as unconstitutional.  What I'd like to do is try to explain as a legal matter just what happened here, and what matters most about it.

In that regard, I want to focus on two things: (1) the findings of fact are more important than the Court's legal conclusions; and (2) the Court's broad legal conclusions went beyond where I thought the Court had to go in rendering this decision, and future courts need not go quite as far in their further evaluations of Prop 8.

Findings of Fact: Start by remembering that Judge Walker conducted a trial -- this was not merely decided based on legal arguments, but on lay and expert testimony regarding the impact of Prop 8 on real couples, same-sex and opposite-sex.  As the trial judge, Judge Walker's determinations as to the reliability of these witnesses will receive a great deal of deference by the appellate courts which will review this decision, and on that, his conclusions are devastating to Prop 8:

[T]he evidence presented at trial fatally undermines the premises underlying proponents’ proffered rationales for Proposition 8. An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such,  Proposition 8 is beyond the constitutional reach of the voters or their

And, quite simply, the Court mocked the credibility of the "experts" introduced to support Prop 8:

Blankenhorn’s interest and study on the subjects of marriage, fatherhood and family structure are evident from the record, but nothing in the record other than the "bald assurance" of Blankenhorn, suggests that Blankenhorn’s investigation into marriage has been conducted to the “same level of intellectual rigor” characterizing the practice of anthropologists, sociologists or psychologists. Blankenhorn gave no explanation of the methodology that led him to his definition of marriage other than his review of others’ work. The court concludes that Blankenhorn’s proposed definition of marriage is “connected to existing data only by the ipse dixit” of Blankenhorn and accordingly rejects it.

Proponents also presented testimony which they believed demonstrate the political power of gays -- an important consideration legally under the Carolene Products footnote 4 principle that the less politically powerful a group is, the more scrutiny courts should direct towards legislation targeting it.  On that, again, FAIL:

date)Miller stated that he did not know at the time of his deposition the status of antidiscrimination provisions to protect gays and lesbians at the state and local level, could only identify Don’t Ask, Don’t Tell and the federal Defense of Marriage Act as examples of official discrimination against gays and lesbians, and that he has read no or few books or articles by George Chauncey, Miriam Smith, Shane Phelan, Ellen Riggle, Barry Tadlock, William Eskridge, Mark Blasius, Urvashi Vaid, Andrew Sullivan and John D’Emilio,

Miller admitted he had not investigated the scope of private employment discrimination against gays and lesbians and had no reason to dispute the data on discrimination presented [before Congress in 2009]. Miller did not know whether gays and lesbians have more or less political power than African Americans, either in California or nationally, because he had not researched the question....

The credibility of Miller’s opinions relating to gay and lesbian political power is undermined by his admissions that he: (1) has not focused on lesbian and gay issues in his research or study; (2) has not read many of the sources that would be relevant to forming an opinion regarding the political power of gays and lesbians; (3) has no basis to compare the political power of gays and lesbians to the power of other groups, including African-Americans and women; and (4) could not confirm  that he personally identified the vast majority of the sources that he cited in his expert report. Furthermore, Miller undermined the credibility of his opinions by conceding that gays and lesbians currently face discrimination and that current discrimination is relevant to a group’s political power.

What, then, were the Court's key factual findings?  There's a lot, so forgive the cherry-picking:

  1. Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.
  1. California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in California.
  1. Same-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 do not differ depending on whether a couple is same-sex or opposite-sex.
  1. 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.
  1. The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.
  1. Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.
  1. Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.
  1. Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.
  1. Proposition 8 singles out gays and lesbians and legitimates their unequal treatment. Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.
  1. The gender of a child’s parent is not a factor in a child’s adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.
  1. Well-known stereotypes about gay men and lesbians include a belief that gays and lesbians are affluent, self-absorbed and incapable of forming long-term intimate relationships. Other stereotypes imagine gay men and lesbians as disease vectors or as child molesters who recruit young children into homosexuality. No evidence supports these stereotypes.

Which then leads to the Conclusions of Law, which are separated into two parts: due process and equal protection.  Due Process regards the fundamental right to marry; equal protection concerns whether the classifications made by Prop 8 are justifiable.  Two separate attacks.  

I'll preface this section by noting that back in May 2009, I suggested that all Judge Walker had to do -- the narrowest grounds -- was to follow a series of cases making a limited equal protection claim.  Namely, that Prop 8's removing the label "marriage" from gay couples but nothing more could only be seen as animus against a disfavored group, and that the equal protection clause doesn't allow animus-motivated classifications.  Judge Walker didn't have to go further and state that the right of gays to marry was fundamental regardless of whether it had first existed before being taken away.  But he did:

Due Process:

The parties do not dispute that the right to marry is fundamental. The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right....

[G]ender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

... Plaintiffs do not seek recognition of a new right. 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.

The evidence shows that domestic partnerships do not fulfill California’s due process obligation to plaintiffs for two reasons. First, domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage. Second, domestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples.

Because marriage is a fundamental right, Prop 8 is evaluated under a "strict scrutiny" standard -- is this a narrowly-tailored classification essential to fulfilling some important governmental interest?  No and no, as the next section explains.

Equal Protection:So there's all different levels of scrutiny under the Constitution based on who you're targeting.  If a law creates a racial classification, it's strict scrutiny.  If it regards some innocuous group -- ophthalmologists, say, then "rational basis" applies: "is there some sensible tie between means and ends?"  If the law targets gender, it's somewhere in-between, and as noted above if a law seems based on animus towards a disfavored group, it's "rational basis plus" and always loses.

The Court here decided that no matter what test was applied, Prop 8 was an unconstitutional abridgment of equal protection rights.  Still, Judge Walker wanted to make clear, strict scrutiny should probably apply:

As presently explained in detail, the Equal Protection Clause renders Proposition 8 unconstitutional under any standard of review. Accordingly, the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.

Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect. Massachusetts Board of Retirement v Murgia, 427 US 307, 313 (1976) (noting that strict scrutiny may be appropriate where a group has experienced a “‘history of purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.”

The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation.

So, then, Judge Walker sets up Proponents' arguments, so he can demolish them:

Proponents put forth several rationales for Proposition 8 which the court now examines in turn: (1) reserving marriage as a union between a man and a 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.

Based on the Findings of Fact above you can guess where this goes.  Still, a few excerpts can't hurt:

Tradition alone, however, cannot form a rational basis for a law. The "ancient lineage” of a classification does not make it rational. Rather, the state must have an interest apart from the fact of the tradition itself.

The evidence shows that the tradition of restricting an individual’s choice of spouse based on gender does not rationally further a state interest despite its “ancient lineage.” Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. California has eliminated all legally-mandated gender roles except the requirement that a marriage
consist of one man and one woman. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.

[Link is mine, not the Court's.  It's a long opinion, and you're owed one.]

[P]roponents presented no reliable evidence that allowing same-sex couples to marry will have any negative effects on society or on the institution of marriage. The process of allowing same-sex couples to marry is straightforward, and no evidence suggests that the state needs any significant lead time to integrate same-sex couples into marriage. Consider, by contrast, Cooper v Aaron, 358 US 1, 7 (1958) (recognizing that a school district needed time to implement racial integration but nevertheless finding a delay unconstitutional because the school board’s plan did not provide for “the earliest practicable completion of  desegregation”). The evidence shows that allowing same-sex couples to marry will be simple for California to implement because it has already done so; no change need be phased in. California need not restructure any institution to allow same-sex couples to marry.

The evidence does not support a finding that California has an interest in preferring opposite-sex parents over same-sex parents. Indeed, the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes. Moreover, Proposition 8 has nothing to do with children, as Proposition 8 simply prevents  same-sex couples from marrying. Same-sex couples can have (or adopt) and raise children. When they do, they are treated identically to opposite-sex parents under California law. Even if California had an interest in preferring opposite-sex parents to same-sex parents —— and the evidence plainly shows that California does not —— Proposition 8 is not rationally related to that interest, because Proposition 8 does not affect who can or should become a parent under California law.

Big finish!

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 or two women, this belief is not a proper basis on which to legislate.

... 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.

The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance 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.

Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. 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.

So, what happens next? In the next few days, Judge Walker will decide whether to put a stay on his order or have it take effect immediately.  Then, the appeals begin -- and on the last Monday of June, 2012, Justice Anthony Kennedy will let us know if he meant what he said in Romer v. Evans, back in 1996, that a law which "classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else" cannot stand.  Let us hope.

Originally posted to Daily Kos on Wed Aug 04, 2010 at 06:26 PM PDT.

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