August 5, 2010
(Hey everyone. Paul Hogarth, yet another Prop 8 Trial Tracker contributor from our daily trial coverage back during the trial in January chimes in here with his analysis of today’s ruling. Paul is an attorney at the Tenderloin Housing Clinic in San Francisco and the Managing Director of BeyondChron.com. He was also recently voted “Best Local and State Blogger” by Netroots Nation attendees. — Eden)
By Paul Hogarth
My good friend (and fellow lawyer) Brian did a great job summarizing the legal arguments that Judge Walker raised, so I won’t necessarily repeat them. But one thing he did say bears repeating:
Most of the decision (the first 109 pages) is the “factual findings.” This is crucial, and here’s why. On appeal, Judge Walker’s conclusions of law are basically irrelevant. Questions of law are decided fresh on appeal, and the trial court’s thoughts on the law are entitled to no deference. On the other hand, only a trial court can make factual findings. A Court of Appeal must give great deference to the factual findings of the trial court, especially when those findings are based on the credibility of witness testimony.
He’s right. We always knew a favorable trial decision would be appealed probably all the way up to the U.S. Supreme Court, so the legal theories advanced by Judge Walker have limited value. But as Ronald Reagan famously said, “facts are stubborn things” — and the trial court’s findings of fact and rulings on credibility are here to stay, no matter what Scalia, Thomas, Roberts or Alito think about (as Stephen Colbert would say) “two dudes getting married.” So for my analysis, I’ve decided to cover the most significant findings of facts and credibility that Walker called, and why it matters the most:
On the Will of the People: “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 determination of the voters. When challenged, however, the voters’ determination must find at least some support in evidence … Conjecture, speculation and fears are not enough (page 24.)”
Not a finding of fact per se, but a credibility judgment that directly confronts the whole “will of the people” demagoguery we get from the other side.
Fact #27: Marriage between a man and a woman was traditionally organized basedon presumptions of a division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family.
Fact #32: California has eliminated marital obligations based on the gender of the spouse. Regardless of their sex or gender, marital partners share the same obligations to one another and to their dependents. As a result of Prop 8, California nevertheless requires that a marriage consist of one man and one woman.
I put these two together, because they very nicely form the basis of Walker’s argument – restricting marriage to opposite-sex couples is an archaic concept that relies on a presumption that men and women are different, and somehow both indispensable to form a marriage. Even if Supreme Court judges don’t believe gay people can marry, they still need a rational basis (at least) for excluding same-sex couples — and “just because” won’t be an adequate answer.
Fact #44: Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.
Fact #48: Same-sex couples are identical to opposite sex couples in the characteristics relevant of the ability to form successful marital unions.
Again, these two facts gel nicely together. In his legal analysis, Walker says that sexual orientation is a “suspect class,” but we don’t even need to do strict scrutiny because Prop 8 even fails the rational basis test. One of the essential elements of a suspect class (which I explained in detail before) is if gays are a distinct minority, whose trait is immutable and an essential element of their being. Fact #44 essentially encodes that in, a finding of fact that higher courts will have to deal with. Fact #48 is also important because, once we determine gays are a distinct minority, there is no compelling reason to treat them differently.
Fact #58: Prop 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.
Fact #67: Prop 8 singles out gays and lesbians and legitimates their unequal treatment. Prop 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.
Fact #79: The Prop 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements.
I put these three facts together, because combined they put on a compelling case that Prop 8 was motivated by an irrational fear (animus) that is unconstitutional according to Romer v. Evans (1996.) If all the “rationales” — stated or unstated — in favor of passing Prop 8 were mere subterfuges for bigotry, any court would have to find it violates the 14th Amendment. Walker helps call a spade a spade, and I look forward to seeing how Justice Scalia would try to find some legally consistent way of addressing this.
Again, the Ninth Circuit and Supreme Court are free to reject Judge Walker’s legal reasonings. But they cannot question his findings of fact, which were all amply proved at trial. As Ronald Reagan said, “facts are stubborn things” – and they’re here to stay.