You'll forgive me, I hope, for the brevity of this diary. And the lack of the links. I wanted to say something about the "analysis" of today's Prop 8 victory I've been seeing from the usual gas bags on the usual networks.
Have any of these people read the 138 page decision? Did they see that there were findings of fact and that there were conclusions of law? Do they understand the significance of this?
I've read it. And unlike the talking heads, I've thought about it. I conclude that marriage equality has won a resounding, permanent victory. Join me below for why I think that.
The short of it is that the judge heard all of the testimony and read all of the documents and then he decided what the facts were. Fact findings cannot be overturned unless they are clearly erroneous. The judge was helped in this because the proponents of Prop 8 offered only two expert witnesses, both of whom the judge easily found not to be credible. And the proponents didn't really offer anything else. No other evidence. Appeals courts, like the 9th Circuit, and the Supreme Court don't change these findings of facts unless they are clearly erroneous. That, folks, is just not going to happen in this case. There is substantial record evidence for each of the more than 80 findings of fact.
The judge's conclusion that both parts of the 14th Amendment, the due process and equal protection clauses, were violated applied well established case law and principles that have been established for decades and decades. To overturn these determinations an appeals court would have to believe that there was a rational basis or a compelling state interest for the discrimination against gay and lesbian people. Forget that these two legal standards are different. Today's decision demolished the possibility of finding in this record either of them. The judge found, e.g., that there was no evidence that hetero parents are better than gay ones, and there was record evidence that this was the fact. He did that for every single argument presented, every single proposed rational or compelling basis for the state action and discrmination. So all the legal arguments about all of those conclusions, and about every other conceivable rational basis/compelling state interest all fail.
Put simply, you can expect the Ninth Circuit quickly to affirm today's decision. The Ninth Circuit, if it is tired of being kicked around by the Supreme Court, should affirm today's ruling on the very decision issued today. They shouldn't fool around with it. They should just uphold it. A one line decision would be greaat, "We affirm on the decision below."
When the case gets to the Supreme Court, considering to quality of today's decision and the extremely strong likelihood of a Ninth Circuit affirmance, what is the chance that the High Court will overturn today's ruling? In my opinion, very, very low. Yes, there are four votes for conservative judicial activism that have already shown that they have absolutely no restraint. But to overturn today's decision, unless the Ninth Circuit does something very, very peculiar, the Supreme Court is going to have to break new ground. They're going to have to set a record. They're going to have to go way beyond where the Court has gone before. Beyond Citizens United. Beyond Bush v. Gore. Beyond Plessy v. Ferguson. Beyond Dredd Scott. They're going to have to reach out so far that it will be embarrassing, even to them, to do so. You think embarrassing Scalia, Thomas, Roberts and Alito is easy? Think again. But the amount of well respected, well established law they will have to uproot on their way to overturning today's decision is truly gigantic. It will be beyond even them to explain in a way that passes the laugh test. Even they, I predict, will not reverse. And that, folks, means that in all likelihood, after the Ninth Circuit affirms today's decision, the US Supreme Court will deny cert. It's a decision that's good enough not only to weather High Court mischief but to quell it.
I lift my glass to the plaintiffs and their legal team. I thank Governor Schwartzenegger and Attorney General Brown. I congratulate my friends who will again be married.
