Judge Walker’s opinion in the same-sex marriage case is notable for its factual record. As a commenter to Andrew Sullivan’s blog writes:
What strikes me about Judge Walker’s opinion is the amount of evidence he included there – numbered, paraphrased facts with direct citation to and quotation from the trial record. As a lawyer, I can’t say that I have ever seen a judge include that much of the trial transcript in an opinion. He would have done this to make his record so that when the case is appealed – as everyone knows it will be – he has included enough direct evidence produced at trial to support his application of the law. His clerks made that trial record their bitch, and Judge Walker took that dog for a walk.
Dahlia Litwhick makes a similar point, focused on Judge Walker’s attention to the Supreme Court’s swing vote. According to Dahlia, the opinion was largely an effort to persuade Justice Kennedy, and the fact sections of the opinion tried to “knit together the trial evidence, to the data, to the nerves at the very base of Justice Kennedy’s brain.”
The question is, how much will those factual findings matter on appeal?
If the Supreme Court agrees to hear the case, I don’t think the factual record will matter very much. I think that for three main reasons. First, the Justices will know that this case presents a defining moment for their respective tenures on the Court. This will be one of the biggest decisions of their careers, and its importance transcends a single trial before a single judge with a particular set of witnesses. These sorts of mega-big-picture cases tend rest less on the details of the factual record than other cases. Second, the Justices will certainly recognize the same point that Dahlia Lithwick and the Sullivan commenter made — that is, Judge Walker was trying to use his facts to make an argument designed to persuade the Justices to agree with him. For better or worse, I suspect a majority of the Justices will respond to that dynamic by significantly discounting those facts.
Finally, a majority of the Court had relatively harsh language about Judge Walker’s rulings on broadcasting the trial when it took the remarkable step of overturning his order back in January. This passage at the end of the Supreme Court’s per curiam opinion stands out:
The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.
That’s not the kind of language that suggests that a majority of the Justices will be overly inclined to defer to the Judge’s factual findings in the resulting trial.
Of course, none of this is to say that the factual findings don’t matter at all. And if the Supreme Court takes the case and agrees with Judge Walker, the Court may discuss them extensively in the opinion. But I suspect the facts in this particular case will matter a lot less than many folks think.
bee says:
Reason 4: If a particular justice doesn’t like a particular fact, so much the worse for the fact.
August 5, 2010, 3:09 amEngineer says:
majority of the Court had relatively harsh language about Judge Walker’s rulings on broadcasting the trial when it took the remarkable step of overturning his order back in January
So Judge Walker sees an opportunity to be a household name and is willing to be aggressive about getting to be one.
He looks like another “liberal” who is likely to be more interested in his career than in good judicial practice or the interests of the country.
August 5, 2010, 3:14 amMark F. says:
If the state of CA is not appealling this ruling, how does anyone else have standing to file an appeal?
August 5, 2010, 3:53 ambadlaw says:
What is the likelihood that the 9C will overturn Perry? Doesn’t their decision put the Supreme Court’s decision to hear the case into some context? If it’s overturned, and they agree to hear it, isn’t it possible that they could rule in favor of SSM? And vice versa?
August 5, 2010, 4:07 amN.E. Rizzo-Davis says:
So basically SCOTUS will not follow the regular procedures of appellate courts because it’s their day to make a mark on the law? I’ve never believed in so-called activist judges, but if that was what happened I’d be a believer.
August 5, 2010, 4:17 amnice strategy says:
So can we cease and desist with throwing around “judicial activism” as a pejorative for jurists? Nothing screams “inappropriate politicization” than acknowledging that the facts of the case are unlikely to be taken seriously.
Judge Walker is another Republican appointed judge to rule in favor of SSM. (See also MA and IA). Your speculative character assassination has no basis in fact. Federal judges with lifetime tenure who are probably too old to be considered for a nomination to a higher court aren’t likely to be motivated by their career in the first place. Is Ted Olsen a liberal who doesn’t care about the interests of the country? Really?
A good part of the factual record of the case centers around the inability of defense to show how SSM will actually harm anyone. Perhaps the interests of the country are best served by the principles of freedom and the pursuit of happiness, and not a majority imposing their religious views on a minority group.
August 5, 2010, 4:19 amAndy McGill says:
This issue has been twice decided by the voters of California. Whatever your view of the issue, it makes no sense to defer to a single judge’s view of the facts. The decision was that the US Constitution prohibited this law at some point in the past. Those are the facts that matter.
August 5, 2010, 5:00 amBen David says:
Middle of the road conservatives – and many people of faith – thought they could finesse this issue without running the gauntlet of PC denunciation.
So they took the mealy-mouthed “some of my best friends are gay” route – tacitly accepting the gay activists’ lies and the carefully airbrushed Norman Rockwell version of gay couples and “communities” presented in the media (except on Pride Parade day, when the truth leaks out…)
But political correctness quickly twists any arm extended to it.
And now these lies – still unchallenged, even in court! – form the basis for this ruling.
It is now almost impossible to present the real facts – the clear evidence of dysfunction in the gay subculture, and the lack of any evidence for the “born that way” lie – without being branded a hateful nutcase.
Conservatives did this to themselves: they let themselves be snookered by the gay activists’ “pity me” opening gambit – and cowed by the predictable “my way or the highway” suckerpunch followup.
This didn’t just happen – it was the plan. It’s how PC victimhood is deployed. Emotional manipulation and selective moral umbrage are used to box in one’s opponents.
And conservatives fell for it.
August 5, 2010, 5:30 amjr farmer says:
Actually, Judge Walker is a purported conservative appointed by Reagan and Bush I, whose confirmation was opposed by Pelosi and her allies. He is, however, gay, at least according to Wikipedia. For that reason too, the Supreme Court may discount his findings, which seem a bit too overwraught.
August 5, 2010, 5:40 amBenjamin Morris says:
I’m slightly confused about why this matters. Does a lower court’s factual findings about whether there is a rational basis for a law (or other broad political determinations) normally get significant deference in higher courts? It has been a long time since law school, but most of the relevant appellate or SC cases I recall seemed to do their own analysis for that sort of thing and deferred to the trial court’s findings only for facts that arose from the specific case. To do otherwise would open up a giant can of logic-worms.
August 5, 2010, 5:53 ampublic_defender says:
As to factual findings, they might matter more at the court of appeals level than at the Supreme Court level, and same sex marriage supporters pretty much have to win at the court of appeals. Generally, my experience is that intermediate appellate judges are more concerned about standard rules of deference than state or federal supreme court justices.
Sure, if same sex marriage supporters win at the court of appeals level, same sex marriage opponents will have a really good shot at cert. But if same sex marriage supporters lose at the court of appeals level, they will face a very steep uphill cert battle. Basically, same sex marriage supporters must win this case three times (trial, 9th Circuit, Supreme Court). Opponents need only win it once. So if the factual findings help in the court of appeals, they help the case overall.
On another issue, Sullivan’s posts also point out the risk of writing a passionate and alarmist dissent. In Lawrence, Scalia wrote a passionate dissent arguing that the majority’s opinion would destroy the legal viability of arguments opposing same sex marriage. Scalia ended up giving Walker a rhetorical and logical road map for part of Walker’s opinion.
August 5, 2010, 6:13 amPatty Shundynide says:
Whether the factual record matters or not depends on the standard of review. If it’s rational basis, I expect it won’t matter very much.
As Justice Kennedy notes, “A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. ‘[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.’” Heller v. Doe, 509 U.S. 312, 320 (1992) (quoting FCC v. Beach Communications, 508 U.S. 307, 315).
August 5, 2010, 7:14 amMartinned says:
If they don’t appeal, SSM will be legal in the Northern District of California, but not in the rest of the state. Surely they can’t allow that?
August 5, 2010, 7:29 amBrian says:
The judge wanted to create a televised show trail, a political atmosphere inappropriate to a court. He also ordered, encouraged or allowed discovery on a lot of legally irrelevant issues, just to prep the show trail, e.g., on the issue of the motive(s) of those who voted YES on the proposition or who otherwise oppose gay marriage. The court was a jerk, and even Justice Kennedy will recognize that.
It’s all so unnecessary, even on the judge’s own terms, because in 10 or 15 years gay marriage will be the law in CA, and in every other State except for Utah and a couple others, via the legislative process.
August 5, 2010, 7:31 amJohn Hamilton says:
I think there is a consensus at Volokh that the lawyer representing the proponents of Prop 8 did an extraordinarily poor job.
August 5, 2010, 7:42 am.
That leads me to wonder, and I really don’t know: did California Attorney General have a duty to defend Prop 8? If so obviously that duty would be to defend it vigorously regardless of his personal beliefs both about gender-neutral marriage and the Constitutionality of Prop 8. There can be little doubt that a fully-engaged Jerry Brown would have done a more competent job than was actually done.
.
So again: Did Brown have a duty to defend Prop 8?
Virginialawstudent says:
I’m also having a very difficult time accepting this sort of closed factual record that the judge set up. What if there’s a companion case in Texas with a different record at trial? What if there is testimony there that a judge credits as providig a rational basis? Houldn’t that figure into a SCOTUS decision? The legislature need only provide some basis, right?
Also, the adequacy of the representation might be a problem, right? The people of California voted in a law but the governor an AG refused to defend it. The intervenors were acting on behalf of a class essentially, right? Should the judge have gone out of his way to get some experts for that side?
Also, the judge’s Daubert determinations seem fairly harsh. I’ve seen a lot of expert testimony, and,at least when it comes to he social sciences, it’s not this hard to qualify ad an expert. Now, it’s one thing to credit one witness over another, but here the judge determined the witness was unqualified to even testify.
August 5, 2010, 7:44 amAnderson says:
Prof. Kerr makes good points. I was wondering over at LGM whether the factual record presents SCOTUS with a compromise path: affirm the striking down of Prop 8 as not supported by a rational basis in the instance before the Court, but refrain from a general holding that there can never be a rational basis for outlawing SSM.
August 5, 2010, 7:48 amBrianTH says:
Is Orin specifically talking about Kennedy here? If so, I don’t know if all this analysis is true. I do think he will appreciate the historical significance of the case, but I don’t think he will necessarily ignore the documented fact that the proponents of Prop 8 simply could not find a rationalization for the law that survived any sort of scrutiny, and that the record demonstrates their real motive was animus. It is a tough burden, but arguably this is one of those rare occasions where the plaintiffs actually won the game of speculative whack-a-mole the rational basis test implies.
Anyway, regardless of what happens in the Supreme Court, the mere fact of the trial and findings will likely have an impact on future, non-judicial, events. Indeed, even putting the Supreme Court in the position of having to ignore the trial record and the facts–if that is what the Court chooses to do–could be part of that process.
August 5, 2010, 8:16 amPatty Shundynide says:
No such compromise is possible because the the test is an objective (“general”) one. If there is some conceivable state of facts in any instance that could sustain the rationality of the legislation, then the Court is compelled to uphold that legislation. Failure to “negative every conceivable basis which might support it” results in the legislation passing constitutional muster. See Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973).
August 5, 2010, 8:25 amPatty Shundynide says:
Rational basis review can only result in a “general” holding. Your compromise is not possible.
If there is some conceivable state of facts in any instance that could sustain the rationality of the legislation, then the Court is compelled to uphold that legislation. The terms of the rational basis test is a general one. See, e.g., Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973) (failure to “negative every conceivable basis which might support [a law]” results in the challenged law passing constitutional muster.
August 5, 2010, 8:32 amTJ Parker says:
`It is now almost impossible to present the real facts – the clear evidence of dysfunction in the gay subculture, and the lack of any evidence for the “born that way” lie – without being branded a hateful nutcase.’
Ah. There was an extensive trial here. If such evidence exists, why was it not presented?
The findings of fact in this case establish the “born that way” “lie”. All reputable science supports that claim, and the only opponents are those religious zealots whose proof is scriptural and dogmatic.
August 5, 2010, 8:34 amMartinned says:
Why wouldn’t the state appeal? If they don’t, there will be SSM in the Northern District of California, but not in the rest of the state. Surely they wouldn’t allow such an anomaly to persist?
August 5, 2010, 8:56 amNRWO says:
It’s all so unnecessary, even on the judge’s own terms, because in 10 or 15 years gay marriage will be the law in CA, and in every other State except for Utah and a couple others, via the legislative process.
Huh? The number of states with recent constitutional amendments banning SSM makes the statement above widly implausible.
http://en.wikipedia.org/wiki/List_of_defense_of_marriage_amendments_to_U.S._state_constitutions_by_type
SSM has advanced here through judicial fiat, not through plebiscite.
August 5, 2010, 8:57 amBlue Neponset says:
I don’t think SSM proponents will have much trouble negating “every conceivable basis which might support” anti-SSM laws. There just isn’t a practical reason to oppose SSM. The Prop 8 crowd couldn’t come up with one because there isn’t one.
IANAL, but one think I have learned about the Constitution is it means whatever five people in DC think it means. Therefore, it doesn’t mean all that much. I have no doubt the right wingers on SCOTUS could come up with some reason to justify anti-ssm laws.
As Prof. Kerr and other commenters have brilliantly noted however, this will be an historical case. I just don’t think CJ Roberts wants to be on the wrong side of it. My gut tells me he will join the liberals and uphold Walker’s decision. Time will tell.
August 5, 2010, 9:03 amMartinned says:
Please, enlighten me, what is it about the Chief’s tenure so far that makes you pick him (and not, say, Alito, who is after all the Blackmun to the Chief’s Burger) as the one who will join “the liberals”. And what about Kennedy?
August 5, 2010, 9:13 amJohn Doe says:
The problem is that the judge was “finding facts” that are not really factual under any rational definition of the term. For instance, the “fact” that Orin discussed in a prior post, that same-sex marriage would not in the future have any effect on normal marriage. That is a prediction, at best, not a “fact” arising from the case. Next, there’s the “fact” that same-sex marriage would “benefit the state.” That’s not a fact; it’s a moral judgment that depends on what you think a “benefit” is.
For gay marriage supporters having trouble here, imagine a pro-life judge issuing a ruling that had the following findings of “fact”: “As established by witness testimony, fetuses have a right to life beginning at conception,” or “Banning abortion will not have any effect on the ability of women to pursue careers.”
August 5, 2010, 9:14 amPatty Shundynide says:
But they haven’t. It’s not enough to argue, on the preponderance of the evidence, that some basis or other is not supported by the empirical evidence; they must argue that every possible rationale is in fact inconceivable, or logically impossible. Under that deferential standard, even the flimsiest conceivable rationale (even “speculation”) suffices.
August 5, 2010, 9:18 amRoger the Shrubber says:
Ted Olsen has always been such a stooge.
August 5, 2010, 9:18 amNaG says:
I’m going to bet that Chief Judge Kozinski is going to make sure he’s on the panel that considers this appeal, and writes the unanimous opinion (perhaps with a concurrence) upholding the decision.
August 5, 2010, 9:20 amSarcastro says:
My favorite facts are the real kind! Like how all gays are dysfunctional! If you ask for proof, that’s PC oppression! I’m the victim here!!
August 5, 2010, 9:26 amMartinned says:
That analogy doesn’t work. Socrates notwithstanding, your abortion examples imply moral judgements that the judge’s statements about the future do not. As for the “benefit the state” fact, that one is a summary of six findings of fact, which are in fact properly so called. (They’re on page 67-68 of the ruling.)
August 5, 2010, 9:32 amDJR says:
>That’s not the kind of language that suggests that a majority of the Justices will be overly inclined to defer to the Judge’s factual findings in the resulting trial.
Orin, I’m not sure I follow. The language you quote criticized the trial judge for supposedly changing rules and ignoring procedures. One can sensibly be offended by that while still recognizing that the trial judge is entitled to deference in his findings of fact. Finding facts is one of the trial judge’s primary roles and ideally his area of greatest competence. Changing rule, ignoring procedure, not so much.
As for the role of the facts at the Supreme Court, I seem to recall (admittedly without checking) that the evidence adduced at trial was important in Brown. As you note, if the Court is going to agree with Walker, it may well discuss the facts extensively. Of course, if all you’re saying is that the Court won’t be tripped up by these findings if it wants to reverse, I agree completely. Supreme Court Justices have an easy way to do that — they just ignore the things they don’t want to talk about.
For those who are predicting that the conservative Roberts Court will unquestionably reverse, don’t be too sure. The pivotal Justice is likely to be Kennedy, who did author both Lawrence and Romer.
Assuming it gets there, this will be a truly blockbuster case. I wonder whether the Justices try to imagine what history will think of their vote 20 or 50 years down the road? Which side would you like to have been on in Brown? In Plessy? In Loving? In Bowers? It’s hard to imagine that SSM won’t become the law of most states within a generation no matter how this case ends.
August 5, 2010, 9:32 amMartinned says:
You mean an outcome that increases personal liberty?
August 5, 2010, 9:35 amL says:
Charming!
When you say you’re seeing a “‘Citizen’s United’ [sic] outcome,” do you mean an outcome where the Supreme Court finds the restriction violates the plaintiffs’ constitutional rights? Okay! I would also like to see a Citizens United outcome!
August 5, 2010, 9:40 aminahandbasket says:
Like what happened in Alabama in 2000 when voters amended their state constitution, taking out the anti-miscegenation statute 33 years after Loving v. VA? Sure, the statute was not enforceable after Loving v. VA but obviously there was little political will or benefit to gather enough signatures to get a ballot on the election card until 2000.
You can wait 10-15-20-33 years until same sex couples can marry. You really have no dog in this fight and neither does anyone who isn’t gay. Allowing same sex couples the rights and privileges of civil marriage simply does not impact anyone but same sex couples. That was one of the findings in Judge Walker’s ruling. Allowing or disallowing same sex marriage neither helps or harms opposite sex couples being able to be married.
August 5, 2010, 9:42 ammls says:
Under what circumstances is a court permitted or required to hold a “trial” to determine the constitutionality of a law? To the extent that a constitutional issue depends on facts about the need for or likely effect of a law, I thought that the court looks to the information presented or available to the legislature (or in this case, the people) at the time the law was enacted, rather than making its own independent determination of the facts. If Judge Walker wants to claim that Proposition 8 lacks a rational basis, at least he should have to do so based on the evidence available to the voters, not based on whatever “experts” happened to testify in his courtroom.
August 5, 2010, 9:51 amGreg Dodge says:
Creating a compelling factual record was a huge part of the David Boies/Ted Olsen strategy. See this link for David Boies discussing how the state began with a variety of witnesses who basically were unable to defend their positions.
Now, I agree with Orin that the extensive factual record may not end up mattering much at the Ninth Circuit, and even less in the Supreme Court. I don’t know how I feel about that, however. Obviously one of the first questions a law student has to ask is if something is a “question of fact” (deserving deference) or a “question of law” (reviewed de novo). Indeed, trial judges often style a great deal as fact that is not fact, in order to receive extra deference. Maybe some of that went on here.
That said, I’m a bit confused by the reasons given in this post: the factual record will be ignored because the issue is “really important”? Indeed, why is the response to not wanting to focus on “one factual record before one trial judge with one set of witnesses” to simply ignore the record entirely? Orin, I know you wouldn’t think they are the same, but the way your post is set up it sounds an awful lot like appellate judges substituting their own personal views (i.e. what they know day-to-day about same-sex marriage and the reasons for Prop 8) for what was actually presented at a trial. Maybe same-sex marriage is too different, but that kind of thing is not appropriate in most contexts. But see Scott v. Harris. (Though there the video was in the record.)
So I agree with the general point — SCOTUS is going to do whatever it was going to do regardless of the factual record compiled — but I do think the extensive factual record matters, and I think it’s not much of an answer to say that the law’s defenders here were just not as good as the appellate judges would have been at finding witnesses to support the law or thinking of reasons to defeat the rational basis test, so we will just ignore the factual record which — regardless of one’s opinion of Judge Walker — was thoroughly compiled.
August 5, 2010, 9:52 amBlue Neponset says:
Just a gut feeling. Much like Bush looking into Putin’s soul I got the impression from Robert’s confirmation hearings that he revers the law. I don’t think he would want to be a part of a law that clearly discriminates and which is already on its way out. I could be projecting but I have noticed a few others having the same gut reaction. Once again, time will tell.
August 5, 2010, 9:53 amMartinned says:
Ah, the memories…
But seriously, I’m no expert on the politics of panel vs. en banc court, especially in the 9th circuit where the en banc is itself only a somewhat bigger panel (the Chief Judge and 10 other judges, selected randomly). Would the Chief Judge want to be on the panel, assuming that he should have the power to make that happen? BTW, my understanding is that he does not, at least not officially. In that sense, Kozinski’s position is different from Lord Denning‘s, who enjoyed being Master of the Rolls so much in part because it allowed him to choose his own cases and the judges who would be on the panel with him.
August 5, 2010, 9:58 amcboldt says:
Martinned: –Why wouldn’t the state appeal? If they don’t, there will be SSM in the Northern District of California, but not in the rest of the state –
August 5, 2010, 10:00 amThis is the outcome the state wanted. That is, the government desire is contrary to the expressed will of the majority of the people. As for the extent of effect of the judgment, the judge enjoined enforcement of Prop 8, which affects the entire state.
guest1 says:
(Cross-posted) I’ve always thought Hitchens was right in saying that conservatives should not oppose gay marriage because marriage is a fundamentally conservative institution. Conservatives should be more troubled if gays did not want to marry. Marriage — particularly coupled with children — enforces fundamentally conservative values. I can not agree with how the judge has decided this case (typical overreaching progressive arrogance), but I can support the idea of gay marriage, and not only that, the idea that gay married couples should be encouraged to adopt children or conceive children through surrogates.
August 5, 2010, 10:01 amKenneth C. Brooks says:
I have said this once and I will reinterate it here. Representative Sonny Bono had the right idea when he introduced legislation to require a majority voote from a three judge panel in District Court before any state legilsation would be substantively reviewed and the Constitutionality be determined and, if found unconstitution, blocked from being enforced. Unfortunately the powers that be took umbridge with that bill and Sonny had a skiing accident. His wife, who assumed his Federal duties and not wanting to have a skiing accident of her own promptly withdrew the bill from the committee. I believe allowing a single Federal Judge the jurisdiction to overturn the will of a sovereign government violates the Federal government’s duty to secure to the states a Republican Form of Government. This must be rectified. We must have form Representative Bono’s bills reintroduced and made law.
August 5, 2010, 10:03 amguest1 says:
As an aside, in terms of Ted Olsen’s involvement, has anyone else had the same cynical thought as I have, that Olsen got involved precisely for the reason that he suspected it was “too early” to bring a case like this, increasing the chances it would get stuck down at the Supreme Court thus dooming gay marriage for another generation at least?
August 5, 2010, 10:05 amBlue Neponset says:
I understand that they will have to defend against every flimsy rational. I still don’t think it will be a problem. Anti-SSM laws have no rational basis…..period. They just don’t.
Are you arguing that laws can be arbitrary? Could the Commonwealth of Massachusetts pass a law saying every resident had to wear a green hat on Thursdays simply because it would increase sales tax revenue? This isn’t quite the same level of absurdity as anti-SSM laws but it isn’t that far off either.
August 5, 2010, 10:05 amMark Field says:
As I see it, the purpose of the factual findings was to constrain the Supreme Court. Most Courts of Appeal are pretty reluctant to make factual statements unsupported by the record. Not so the Supremes. One of my favorite examples is this from US v. Reynolds: “Polygamy is inherently destructive of civilized society.” There was, of course, no factual record whatsoever to support this statement.
Anyway, what the factual findings do is limit the extent to which the Court can get away with making shit up. In this context, some of the more controversial findings are interesting. Take, for example, the finding that gay marriage will not harm CA (paraphrase). It’s arguable whether this is a factual finding, as some here have noted, rather than a prediction. However, if the Court rejects the finding on that basis, it would be very awkward for it to turn around and suggest some harm to the state. That would also be no more than a prediction.
I haven’t gone through the findings on this basis, but I suspect it would be possible to strike down the CA law on Romer v. Evans grounds.
Remember, though, that the issues before the Court will be those set by the 9th C, not necessarily those of the District Court.
No, the District Court’s decision applies statewide.
August 5, 2010, 10:09 amNRWO says:
There just isn’t a practical reason to oppose SSM. The Prop 8 crowd couldn’t come up with one because there isn’t one.
For a practial reason, look at time series data from Scandanavia, which has experimented with registered partnerships (which include SSM). Such partnerships have been followed by a rise in cohabitation, a decline of married couples with children, and a rise in single parent families.
No serious demographer argues that, on the whole, kids in single parent families fare better than kids in married families.
An important question is whether SSM causes a rise in single parent families. Probably not directly, but indirectly through changes social norms that make marriage seem less sacrosanct, less tied to kids, less tied to procreation, less exclusive.
Don’t be surprised if changes in social norms lead to fewer married couples with kids and more single parent families (that’s what’s apparently happended in Scandanavia). And, if heterosexuals start opting out of marriage, don’t be surprised if more kids are born out of wedlock – which, on the whole, isn’t good for kids.
August 5, 2010, 10:13 amFrank Drackman says:
“I do not support Gay Marriage.
Marriage has religious and social connotations, and I consider marriage to be between a Man and a Woman”
anyone wanta guess what President said this not to long ago??
Don’t wanta give it away, but his first name is “Barak”
his middle name’s “Hussein” and his last name’s “Obama”
Frank “Obama’s Right” Drackman
August 5, 2010, 10:16 amAnderson says:
Thanks for setting me straight, Patty. As you can tell, con law is not my day job!
Such partnerships have been followed by a rise in cohabitation, a decline of married couples with children, and a rise in single parent families.
Where in Europe is that *not* the case, SSM or not? For that matter, have you looked at America’s statistics?
If *divorce* is legal, which is a much bigger contributor to all those effects, then I fail to see why SSM should be illegal.
August 5, 2010, 10:17 amMartinned says:
That’s what I was wondering. I didn’t see any way for a judge in one Federal District to enjoin enforcement of this provision even outside the Northern District, but I guess I was wrong.
August 5, 2010, 10:20 amMartinned says:
That suggestion was made plenty when this case was first brought, and the general opinion was that it was wrong to suspect him of something so fantastically unethical without at least some evidence.
August 5, 2010, 10:21 amMartinned says:
Does post hoc ergo propter hoc mean anything to you? Google is your friend…
August 5, 2010, 10:24 amORID says:
Let’s set aside the whole rights and privileges issue, which is the central issue from the standpoint of SSM proponents.
Here’s a hypothetical (I repeated on a previous thread, but I think that thread is pretty dead):
Let’s say instead of a proposition on “marriage” the state of California took up a proposition on the definition of “Jesus”. “Yes on 8″ proposition was something like “the state of California recognizes that Jesus is the central figure of Christianity, is a historical figure born near or around 5 BC claiming to be the Messiah.” Let’s say the state went to the lengths of saying, “Jesus is not a historical figure and is not the Messiah. The state of California shall use the term Jesus to refer to a mythical flying spaghetti monster who may or may not have ever been present on the earth.”
Is that constitutional? This is the central issue to those who don’t want to see “marriage” expanded to incorporate same-sex couples.
Everyone is pretending that there’s some secular basis and positive for the state to recognize “marriage”; but frankly I find that hogwash. But now instead of being an “institution from God” it’s plainly being defined as “an institution that came from society” which further angers my religious sensibilities.
Seriously, what’s the point of a “state-protected relationship”.
For all these reasons I pray that the Supreme Court simply strikes down state recognition of marriage, decides to call it all “civil unions” and then everyone can deal with the huge pace of social change.
For the state to define “marriage” is just like the state defining “Jesus”. I know this wasn’t the arguments made during the trial… how can it be fact that “there is nothing about a domestic partnership that is the same as marriage”. I find there to be little symbolic difference between marriage and domestic partnership; other than the fact that one term has a deeply rooted religious meaning.
Reading the trial it almost looks like the proponents of Proposition 8 threw the case because it appears to be argued so poorly. They clearly wanted state protection for the use of the word “marriage”… ridiculous.
But some of the arguments are funny. San Francisco is financially harmed because there are less weddings. Does that mean a Constitutional amendment to make all parking tickets $1 would put significant financial harm on cities and be unconstitutional?
August 5, 2010, 10:24 amAF says:
I basically agree, though I do think that Walker’s findings of fact make it more difficult for the Supreme Court to rely on Brandeis briefs (or its own research) to establish constitutional facts. How is that justified when there is expert testimony in the record on the same issues, that was subject to cross-examination?
So Walker’s factual findings might affect the type of opinion the Court writes — it might be more likely to say the factual questions are irrelevant and less likely to disagree with the plaintiffs’ version of the facts.
On the other hand, the Court might just ignore the record and make its own factual findings based on the Internet research of its clerks. Wouldn’t be the first time.
August 5, 2010, 10:29 amSeaDrive says:
Straw man.
The gay people I know live in the majority culture, and are way on the “functional” end of the functional/dysfunctional spectrum.
August 5, 2010, 10:30 amJK says:
By Judge Walker’s argument, a man can marry another man. Can he marry his adult brother? Can a man marry his adult son? Must California issue a marriage license to two men who wish to become married, even though one of them is still legally married to someone else? Justice Scalia will be asking Olsen to accept or defend lots of hypotheticals…
August 5, 2010, 10:36 amcboldt says:
– One of my favorite examples is this from US v. Reynolds: “Polygamy is inherently destructive of civilized society.” –
August 5, 2010, 10:41 amReynolds v. US, 98 U.S. 145 (1878) is a very interesting case. I took some time during studies to seek out source cases in the areas of slavery and marriage, since both are historically common social practices. At the bottom of those cases is inevitably a naked assertion.
Reynolds though, admits that the law will honor whatever society establishes, and erects no per se legal barrier to polygamy.
I don’t find the word “destructive” in the Supreme Court case; and assume the quote you provided appears in a decision below.
Roger the Shrubber says:
I believe this is the first sighting of an internet “Sony Bono Death Conspiracy Theory.”
August 5, 2010, 10:51 amjosh says:
“the Justices will know that this case presents a defining moment for their respective tenures on the Court. This will be one of the biggest decisions of their careers, and its importance transcends a single trial before a single judge with a particular set of witnesses”
I don’t necessarily disagree, but I’m not sure Kennedy is the target. I think it’s Roberts. What is Roberts going to do, for example, when he’s looking across the bench at Ted Olson? I really think this may have been Boise and Olson’s plan all along. I think they may have envisioned this very argument between Roberts and Olson.
August 5, 2010, 10:51 amArthur Kirkland says:
Thirty or forty years from now, after the libertarian-liberal alliance vindictes the Constitution and fundamental justice with respect to this issue (with help from the young people who are rolling their eyes at conservatives’ bigotry), it will be as difficult to find someone who confesses to today’s gay-bashing as it has become today to find someone willing to acknowledge cheering Dr. King’s assassination and fighting integration every step of the way.
So get it off your chest now, guys, because soon enough you will be cowering in the figurative corner, muttering to yourselves because you don’t dare tell the truth about how you handled this issue.
August 5, 2010, 10:55 amRoger the Shrubber says:
I just had a horrible, horrible thought. If they make divorce illegal could they do it retroactively, invalidating previous divorces?
The horror. The horror. Repeat.
August 5, 2010, 10:56 amMark Field says:
I went off memory, which was a mistake. You’re right that it’s not there. That’s the implication, but not the actual words.
August 5, 2010, 10:59 amORID says:
Why isn’t it the conclusion harof the the judge that “marriage” is now a term too damaging to use by the state and given the voters definition the state will protect civil unions and people can think of their relationships as they like? I don’t see how calling ssm couples “married” doesn’t harm my religious freedom.
I would have voted to call them all civil unions if that was presented to me. Maybe I can file a pro se amicus curae because neither party wanted to present this compromise. Why can’t Prop 8 stand but state protection get re-termed?
August 5, 2010, 11:04 amCJColucci says:
Anyway, what the factual findings do is limit the extent to which the Court can get away with making shit up.
I think this is right. I expect the Supremes to reverse, but the factual record will prevent the majority opinion from being much more than a “just because” with 5 or more votes.
August 5, 2010, 11:10 amNRWO says:
Such partnerships have been followed by a rise in cohabitation, a decline of married couples with children, and a rise in single parent families.
Where in Europe is that *not* the case, SSM or not? For that matter, have you looked at America’s statistics?
Did the changes in cohabitation, single parent families, and marriage that occurred in Scandanavia really occur more broadly in Europe at the same time?
More generally, I agree that the changes may be coincidental (which would minimize concerns about registered partnerships), or based on third variables, or causal. The jury’s out. we just don’t know.
August 5, 2010, 11:11 amyankee says:
I think you forgot all-important reason number four: the Justices, like everybody else, already have their minds made up and are not amenable to persuasion by rational argument.
August 5, 2010, 11:12 amNRWO says:
Does post hoc ergo propter hoc mean anything to you? Google is your friend…
It’s true that registered partnerships and later outcomes (single parent families) may be coincidental or based on correlation without causation.
The issue you raise is always central to debates on facts (and is directly relevant to Anderson’s point), and can be stated thusly in this case: How much evidence (and what type of evidence) is needed before one can say that the country should not, at this time, be forced into adopting policies that may exacerbate societal problems?
One this is certain: Although correlation is not causation (everyone learns this in grade school), causation cannot occur unless there is also correlation (everyone forgets this from grade school).
The Scandanavian case is not airtight (no demographic study is), but it does suggest that a correlation between two events (registered partnerships and single parent families) and has a reasonable theory (based on social norms) linking them.
August 5, 2010, 11:13 amAnderson says:
Like your glasses btw, NRWO.
August 5, 2010, 11:18 amByrk says:
Such partnerships have been followed by a rise in cohabitation, a decline of married couples with children, and a rise in single parent families.
That’s already happening in the US, even before SSM was on the radar as an issue. Correlation does not equal causation, if you want to prove causation you’ll have to do much better than this.
August 5, 2010, 11:24 ammls says:
Mark- I don’t think the judge’s findings constrain the Supreme Court in any meaningful way. With respect to the example you give, the Court should, and probably will, ask whether a voter could rationally conclude that SSM will harm society. This is an entirely different question than whether Judge Walker could reasonably conclude that, based on the evidence that was presented in the trial, no harm will result. I expect that the Court will address the question exactly the same way that it would have if there had been no trial (and, as I indicated before, I don’t understand the justification for holding the trial in the first place).
On the broader question of whether there is a rational basis for rejecting SSM, I think it basically comes down to whether biology and human history “count” for the rational basis. If the answer is yes, then there is a rational basis for rejecting SSM. If the answer is no, then there probably is no rational basis for rejecting SSM. Although in the latter case it would be more logical to say that there is no rational basis for the institution of marriage, period.
August 5, 2010, 11:26 ambillinvirginia says:
Here is a strong prediction: The 9th Circuit will affirm, perhaps unanimously but certainly by a lopsided vote, both in the panel and en banc. The Supreme Court will deny cert. The conservatives won’t want to take this case because the record is so stacked against them. They’ll want to wait for another case where opponents of same sex marriage do a better job of defending the statute — maybe a case where some state official actually wants to defend the statute. The liberals won’t want to take it because it’s already going their way and they won’t know for sure how Kennedy will go. So, why take it? Kennedy (and perhaps Kagan) will want it, but nobody else. So the California law will be struck down, but the opinion won’t apply anywhere else because it’s fact-based.
August 5, 2010, 11:35 amcelticdragonchick says:
Fixed.
August 5, 2010, 11:36 amJohn D says:
Like your Jesus example, this one doesn’t fly.
You make a claim that calling same-sex couples married harms your religious freedom.
I belong to a denomination that has approved of same-sex marriage for more than a decade. Don’t I get to argue that not even allowing same-sex couples to marry harms my religious freedom. Under the current system, my congregation cannot provide legal ceremonies to same-sex couples. If same-sex marriage were legal, your congregation would still be able to refuse to host a same-sex wedding. My denomination thinks that it is immoral to treat gay people differently.
I would like to see you make the specific case for how same-sex marriage harms your religious freedom. I’ve seen this argument advanced unconvincingly many times. Maybe you’ve got the convincing angle. Still, since your denomination would not be obligated to perform same-sex marriages, I don’t see how it infringes on your religious freedom.
I would be fine with all marriages being termed civil unions if we started off with a statement that no rights would be given to marriages. Let’s put everyone on a level playing field. If we have marriages for opposite-sex couples and civil unions for same-sex couples, I don’t trust legislators to drag their feet indefinitely. Look at Hawaii, where the court said that gay couples must be treated equally. Sixteen years later, the governor vetoed civil unions because they were too much like marriage. So what isn’t “too much like marriage” that provides equality to marriage. Apparently, endless delay, inequality, and injustice.
August 5, 2010, 11:36 amcelticdragonchick says:
I have wondered about that, but IANAL. I think the politics of it are sound.
August 5, 2010, 11:38 amNRWO says:
Sometimes they’re rose colored.
August 5, 2010, 11:41 amThe Curmudgeonly Ex-Clerk says:
Professor Kerr’s post is insightful; if anything, he does not go far enough in discounting the potential impact of the district court’s factual findings. Commenter Patty Shundynide’s observations about the rational basis standard of review pretty much sum it up. The fact is that when legislation is struck down under the rational basis test, it is the result of public policy judgments made by the judge(s) and really has nothing whatsoever to do with any particular facts. (Judges may cobble together an argument based on some ostensible set of “facts,” but in this context that is formalist window-dressing.) Commenter John Doe’s observation about the nature of the “facts” found by Judge Walker reinforces this point. Surely, folks do not think it is coincidental that the very people who are so impressed by Judge Walker’s factual findings are the same people who celebrate the result he reached (and vice versa)? I think people like to kid themselves that their opinions about gay marriage are based on the facts, while those who see the issue differently are irrational or worse. But everyone’s opinion on this issue boils down to first principles, value judgments, intuitions about human nature and society.
August 5, 2010, 11:45 amJohnny Canuck says:
“Everyone is pretending that there’s some secular basis and positive for the state to recognize “marriage”; but frankly I find that hogwash. But now instead of being an “institution from God” it’s plainly being defined as “an institution that came from society” which further angers my religious sensibilities.”
My vague memory is that in England marriage was secular for the masses and the church was relatively late (17th century?) in deciding church weddings were necessary for everyone.
August 5, 2010, 11:51 amMack says:
Which of Judge Walker’s Findings of Fact would you challenge, and on what evidence? I see persons constantly discussing how this ruling is meant for Justice Kennedy, but having read the opinion, I disagree. It could just as easily have been written with a lay reader (such as myself) in mind. Unlike many rulings I have struggled through – as I lack the benefit of legal training – this was laid out with tremendous clarity and painstaking documentation.
More useful would be specific refutation of Judge Walker’s particular findings of fact, preferably based on the evidence presented at trial.
What – precisely – did Judge Walker get wrong, and where did he err?
August 5, 2010, 11:51 amPhilistine says:
Do you believe that a state allowing divorce harm Catholic’s religious freedom?
If not, I don’t see the distinction.
August 5, 2010, 11:55 amMark Field says:
cboldt: The word “destructive”, though not my exact quote, does appear in the other polygamy case, Davis v. Beason. It’s possible I mixed the 2 cases in my memory.
August 5, 2010, 11:56 amLymis says:
Well, unfortunately for your argument, that’s simply not true, and has been repeatedly and thoroughly debunked, including during this Prop 8 trial.
The details are widely available – feel free to look them up. The biggest and most fatal flaw, though, is that the analysis fudged the groupings of people baldly to force the conclusion. The data was NOT from a time when same-sex marriage was available, but domestic partnerships were, for both gay and straight couples, and marriage was only available to straight couples.
The analysis called straight couples in domestic partnerships “unmarried” (since they could marry), but then called gay couples in domestic partnerships “married.” The “rise in cohabitation” and “out of wedlock births” were largely to straight couples in domestic partnerships – many of whom proceeded to get married after the birth of their first child.
Since the domestic partnerships were created entirely to avoid allowing gay couples civil marriage, a far more logical conclusion was that denying gay couples marriage led to all these “negative consequences,” since the bare desire to deny civil marriage to gays is what lead to the creation of domestic partnerships in the first place.
There’s a lot more flaws to the analysis, but that one’s the biggest. (The second largest is that the trend was downward long before domestic partnerships entered the picture, flattened briefly when domestic partnerships started, and then started downward again – implying that recognizing gay relationships actually shored up straight marriage for a brief period before the social trend among straight people reasserted itself.)
August 5, 2010, 12:00 pmMark Field says:
I guess that depends on how much weight to give to the word “meaningful”. I certainly agree that the Court will be just as willing to make up facts as it generally is. It will just have to be more careful in doing so; that constraint may affect the opinion. Or it may not; hell, it’s the Supreme Court and it does pretty much whatever it wants.
August 5, 2010, 12:00 pmretr2327 says:
“With respect to the example you give, the Court should, and probably will, ask whether a voter could rationally conclude that SSM will harm society.”
August 5, 2010, 12:09 pmThe question is not what a “voter” could rationally conclude or what evidence the “voter” had. That’s just not the way judicial review works, and for the SCT to resort to such an analysis would be a far more radical departure from precedent than anything J. Walker has done.
mls says:
Okay . . . would you care to elaborate?
August 5, 2010, 12:12 pmLucky says:
Is this really the way we want controversial changed to be adopted: to be imposed by the courts?
What would the proponents of SSM do if the US Constitution were amended to prohibit SSM? Ask for a court to rule that the institution of marriage is unconstitutional?
As for polygamy, I hope the men here realize that it would be a very bad thing for most men. Since the number of men and women is about the same (maybe a slightly higher number of women), if we allow some men to have more than one wife, it means that there will be some men (maybe many men) who will not be able to find wives or sex partners. I suppose ugly women will like it because it will increase their chances of getting married or finding sex partners.
August 5, 2010, 12:30 pmJustin says:
I don’t think the either the 9th Circuit or the Supreme Court will rely on the factual findings in any significant way. But they will read them, and from a realist perspective that will influence their decision making. That’s really the point. It’s hard to read the facts and the trial record and not believe (at least from a policy perspective, though partially from a legal perspective) that the plaintiff’s position is correct.
And the noteworthy thing about the facts and the trial record is not the evidence presented by the plaintiffs, it’s the complete lack of evidence presented by the proponents – to the point where the only expert they put forward contradicted himself and basically proved the plaintiff’s central points.
While the plaintiff’s points and the judge’s conclusions on the facts are valuable ammo going forward, the fact that proponents did almost nothing to try to argue against those points is all the more harmful. Rational basis? Gays being a suspect class? The law being nothing more than a cover for discrimination? The law having a secular purpose? All of these things have at least some factual underpinings, and the proponents did nothing to help their case and in fact everything to harm their case in the way the trial went forward.
Granted, some would say that this is because the facts and experts don’t really help them on any of these issues, but still.
August 5, 2010, 12:30 pmAnderson says:
Thinking about it, I’m just not understanding the rational basis test, I guess.
Does the factual context not matter at all?
Does it not matter that CA has legalized domestic partnerships for gays, and thus has pretty much agreed that gays can cohabit, raise children, adopt kids, etc.?
It seems very different to say in CA “banning SSM has no rational basis, because you’ve pretty much ratified gay conduct across the board anyway” vs. saying in Alabama “banning SSM has no rational basis,” where the legislature has made clear that it doesn’t think gays are cool.
So that continues to puzzle me about the idea that SCOTUS has to rule for the entire nation in reviewing this case.
August 5, 2010, 12:32 pmMartinned says:
I’m not entirely sure what this means, but I hope you understand that rational basis analysis does not turn on the identity of the lawmaker (i.e. legislator or popular initiative).
August 5, 2010, 12:33 pmGoggins says:
Blue Neponset:
Same-sex couples cannot conceive children, while opposite-sex couples can. Yes, not every opposite-sex couple can conceive, or wants to. But laws don’t have to be perfect to be constitutional; in fact, every law is crude. It is reasonable for a state not to want to interrogate all marriage-license applicants, to make sure they are capable of conceiving; instead, they have adopted a crude category of acceptable applicants that will, for the most part, accomplish the same goal. That seems to pass the “rational basis” test (which, I was taught in law school, is “judge code” for “you lose”).
August 5, 2010, 12:36 pmMartinned says:
They don’t. They may (if they feel like it) rule for California. What such a ruling implies for the rest of the country is for the lawyers to sort out.
August 5, 2010, 12:36 pmAnderson says:
Is this really the way we want controversial changes to be adopted: to be imposed by the courts?
They’re imposed by the Constitution, I believe.
So, Brown: wrongly decided? Loving: wrongly decided?
Hell, McCulloch v. Maryland: wrongly decided? Controversial, no?
August 5, 2010, 12:37 pmNat says:
I like that every body is focusing on rational basis when the judge also found that strict scrutiny is applicable. I presume under the civil union only thread the state would be required to change any reference to marriage outside of history class to civil unions. This would require tremendous effort and still does not alter the fact that everyone thinks in terms of marriage not civil union and those who are adults already will continue to do so no matter what.
JK This decision will not open up the issues you ask about since the judge only found that ssm was unconstitutional. There are very strong scientific and psychological reasons why the state would have a legitimate reason to ban incest of any type in marraige.
August 5, 2010, 12:39 pmNRWO says:
Well, unfortunately for your argument, that’s simply not true, and has been repeatedly and thoroughly debunked, including during this Prop 8 trial.
I haven’t followed the Prop 8 case closely enough to accept your conclusion. Having said that, the study below is the best and most relevant I could find. It supports your conclusion.
Will providing marriage rights to same-sex couples undermine heterosexual marriage?
August 5, 2010, 12:43 pmJournal Sexuality Research and Social Policy
Issue Volume 1, Number 3 / September, 2004
MarriedGayParent says:
In the five years following legalization of SSM in MA (2003-2008), divorce rates fell 20%. This trend was highly statistically significant. The Department of Vital Statistics only has published statistics to 2008 at this time (http://www.cdc.gov/nchs/mardiv.htm#state_tables).
Additionally, higher state divorce rates are significantly correlated with the presence of anti-SSM constitutional amendments.
Personally, from a social sciences perspective, I think you’re stupid for trying to play the correlation card. But if you are going to play it, at least do it right.
August 5, 2010, 12:50 pmGoggins says:
From the opinion, p. 117:
So, “strict scrutiny” applies under the DPC, but rational basis is applied under the EPC.
August 5, 2010, 12:56 pmMartinned says:
Abstract
August 5, 2010, 12:57 pmThis paper analyzes data regarding the impact on heterosexual marriages of laws in five European countries that provide marriage or marriage-like rights to same-sex couples. The data provide no evidence that giving partnership rights to same-sex couples had any impact on heterosexual marriage. Specifically, heterosexual marriage rates and divorce rates in Denmark, Norway, Sweden, Iceland, and the Netherlands displayed no significant change in trends after implementation of rights for gay couples; longstanding trends in nonmarital birth rates showed no sign of acceleration attributable to passage of partnership laws; and nonmarital birth rates showed the same changes in countries with and without partnership laws. Finally, because the United States gives many more incentives for heterosexual couples to marry than European countries, any effects of passage of gay marriage or partnership laws in this country would be even less likely to have an impact on the status of heterosexual marriage.
Martinned says:
What’s your causality theory for this one? Personally, I can’t think of one.
August 5, 2010, 12:58 pmGoggins says:
Let’s try to distinguish these questions: “Is Prop 8 a good thing?” (for which social science might be useful), and, “Is Prop 8 unconstitutional (for which social science doesn’t matter, Brown v. Bd. of Education footnotes notwithstanding).
August 5, 2010, 1:01 pmNaG says:
A side point: Two people of the same sex can get married anywhere in America, right now. And by “married,” I mean they can have the whole marriage ceremony before a religious or secular authority, exchange vows and rings, have a first dance, smush wedding cake into each other’s noses, go on a honeymoon, the whole rigamarole. The only issue we are talking about here is whether there can be a rational basis for the government to then not treat gay/homosexual people who have gone through such a ceremony with the same legal rules as have been allowed for heterosexual couples who have done the same thing.
To me, the first question would be: are there any rights granted by the government to heterosexual marriage partners that cannot be obtained through private contract and agreement? I do not see a rational basis for the government refusing to offer a similar bundling option for such alternatively-available rights based solely on sexual preference.
The second question would be: of those rights that cannot be obtained by alternative means, what evidence is there that granting these rights to same-sex partners would be harmful?
Too much focus is being placed on the portions of gay marriage that are really not at issue. When people worry about how gay marriage might affect heterosexual marriages, they forget that the government’s involvement in marriage is very much in the background. Can anyone explain how, for example, allowing two men to own a piece of property as a tenancy by the entireties will negatively affect the social fabric? THAT is where the rational basis analysis should be focused. The government’s hand in gay marriage is not about two men kissing in public and flashing wedding rings. It’s about certain very specific rights.
August 5, 2010, 1:03 pminahandbasket says:
Well, if there wasn’t a cafeteria plan available (domestic registry or marriage) then everyone would either go the marriage route or not at all. It’s not the fault of the gay/lesbian populace that their government offered a marriage lite option.
August 5, 2010, 1:07 pmThe Curmudgeonly Ex-Clerk says:
Nat:
Could you please reference the page and passage of the opinion in which Judge Walker invokes strict scrutiny? According to Erwin Chermerinsky (whose descriptive accounts of the law are usually pretty reliable even if his normative constitutional judgments are batty), Judge Walker did not rely on strict scrutiny:
That said, even if Walker had applied strict scrutiny, there’s not much reason to think that’s the appropriate standard. Despite being quite muddled, it’s relatively clear that the majority ostensibly was applying rational basis review in the most analogous recent Supreme Court case. See Lawrence v. Texas (“The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”).
August 5, 2010, 1:07 pmNRWO says:
I think you’re stupid for trying to play the correlation card. But if you are going to play it, at least do it right.
Classy. Putting aside your snide comment about me being stupid, I bet you have no idea what caused the dip in MA divorce rates: Was the trend present in MA before SSM? And, is there any theory that would predict a *20%* dip in divorce rates following SSM? If so, what’s the theory? The Scandanavian findings I discovered, based on population data, show no change in divorce rates following SSM — not a 20% *dip* in divorce rates.
BTW, I clicked on your link to the CDC, and couldn’t easily confirm your 20% figure.
Your moniker betrays your biases: If you want to score rhetorical points (and convince the converted) — fine. If you want to convince somebody who doesn’t agree with you — good luck.
August 5, 2010, 1:13 pmretr2327 says:
Now you’ve got me wondering if I popped off too quickly. Your comment is intuitively convincing, although the practical implications are somewhat disheartening (it’s hard enough figuring out what the Legislature might have rationally concluded without expanding the field to each/all? voters).
August 5, 2010, 1:14 pmTranx says:
9th Circuit has notoriously liberal and conservative judges, so it’s a crapshoot. The appeal will initially be heard by three judges. That decision will be appealed to an “en banc” group of justices. Typically, “en banc” includes all the Justices, but since the 9th Circuit is the largest court, their “en banc” is a randomly selected 9 justices.
Having said that, the 9th Circuit is based in California, where gay marriage was legal. The Justices probably have clerks, secretaries, and friends that are gay AND may be already married or wishing to get married. Society has not collapsed as a result.
Additionally, we’ve already seen decisions from the 9th circuit that put a higher bar on DADT and that say at least some applications of DOMA are unconstitutional.
I believe marriage equality will be a win from this court, at least at the ‘en banc’ level, but it really comes down to which Justices are randomly selected.
August 5, 2010, 1:24 pmyankee says:
Well, except when it’s not. See, e.g., City of Cleburne v. Cleburne Living Center, Inc.; Plyler v. Doe; Romer v. Evans.
August 5, 2010, 1:25 pmMartinned says:
It doesn’t matter what either the legislature or the voters intended. Rational basis review works by inviting the government (or, in this case, NOM who were defending the law) to propose one or more rational bases for the law in question. Those do not have to be the same as the reason why the law was enacted in the first place, they just have to be minimally rational. The only way prop 8 fails to survive rational basis review is if the judge finds, as this one did, that there exists no reason for having such a law except animus against gays, a desire to maintain tradition for the sake of tradition, or any other such reason why has been declared legally insufficient.
August 5, 2010, 1:28 pmLucky says:
So, everything agreed to by five members of the SCOTUS is constitutional? If the court issues an opinion dispanding Congress and ruling that all executive powers of the federal government now rest with the court, you would support that as constitutional?
The further the courts go in their efforts to lead the people, the more they will impair their credibility as an institution.
August 5, 2010, 1:29 pmMartinned says:
The Chief Judge plus 10 randomly selected judges. (I looked it up earlier. The link to the relevant section of the 9th Circuit Rules is in one of the threads somewhere. It’s Rule 35-4, IIRC.)
August 5, 2010, 1:30 pmGoggins says:
OK, but those were all decided after I graduated! I also learned that Wickard v. Filburn meant that the Commerce Clause imposes no limit on Congress’s power.
August 5, 2010, 1:38 pmNRWO says:
In the five years following legalization of SSM in MA (2003–2008), divorce rates fell 20%. This trend was highly statistically significant. The Department of Vital Statistics only has published statistics to 2008 at this time.
The divorce rate in MA in 2003 to 2007 (the last year available on the CDC chart) is 2.5 to 2.3, respectively, a decline of .2.
How did you arrive at a 20% decline? And how did you reach the conclusion that “the trend was highly statistically significant”?
The MA decline from 2003-2007 (expressed as a proportion) may not even be as great as the decline in the country as a whole or in other states, including those with constitutional amendments against SSM (see TX). If that’s true, one could argue that divorce rates in MA went down *less* than they did in the country as whole (which would seem to contradict your theory about SSM).
Did SSM in MA retard a decline in divorce rates in MA that was being experienced by the country as a whole?
Anyhow, you need to be more precise or careful in your conclusions if you want people to trust them.
http://www.cdc.gov/nchs/data/nvss/Divorce%20Rates%2090%2095%20and%2099-07.pdf
August 5, 2010, 1:45 pmTranx says:
Walker didn’t apply strict scrutiny. He said the law was unconstitutional even if reviewed under the the most deferential, rational basis, test.
He did say strict scrutiny was appropriate because gays and lesbians met all the relevant criteria. It’s 14-26 on page 121.
August 5, 2010, 1:51 pmThe Curmudgeonly Ex-Clerk says:
Further on the standard of review . . .
Looking at the opinion, Judge Walker’s discussion is less clear than it should be (perhaps by design), but the true focus of his opinion really does seem to be the rational basis test. And, in all probability, that’s the standard of review that is going to matter on appeal.
Walker begins his legal discussion with a due process claim that he opines is subject to strict scrutiny. See pp. 109-10, 116-17. But, as noted before, there’s not much reason to think this is an accurate characterization of the law — at least not based on present law. In terms of arriving at the appropriate standard of review for the due process claim, he fails to discuss the standards of review applied in Romer and Lawrence, for example, which is patently odd given that those are the sole Supreme Court cases addressing legislation directed at gays. Lawrence, the most recent of the two cases involved a due process claim and it was decided under the rational basis test.
On the equal protection claim, Judge Walker clearly applies the rational basis test, despite suggesting that he thinks strict scrutiny would be the proper standard of review and that Proposition 8 would fail it too. See pp. 121-22. Notably, strict scrutiny isn’t even mentioned in the court’s conclusion regarding the unconstitutionality of Proposition 8. See p. 135.
August 5, 2010, 1:53 pmretr2327 says:
Martinned:
Given Orin’s subsequent post about the irrelevance of factual findings, I can understand why it makes no real difference whether the rational basis test is phrased in terms of the Legislature, a voter, or, for that matter, a non-voter. Ultimately, unless you subscribe to the belief that the Legislature is capable of reaching rational conclusions that a voter or non-voter cannot — without regard to any factual findings — then it makes no difference. And looking at some of the individuals in Congress nowadays, I’m not about to claim any superior abilities on the Legislature’s part.
August 5, 2010, 1:59 pmGiven that, it would seem that it shouldn’t actually matter whether the law in question was passed by plebiscite or by a legislature. It’s just a rational person test, period.
Martinned says:
The description “rational basis test” seems to work just fine.
Indeed. Arguably, all the due process stuff in the ruling is just dicta.
August 5, 2010, 2:24 pmptt says:
So…. any speculation as to how the SCOTUS will try to block televised coverage of the 9th Circuit appeal?
August 5, 2010, 2:32 pmcboldt says:
– The word “destructive”, though not my exact quote, does appear in the other polygamy case, Davis v. Beason. –
August 5, 2010, 2:58 pmThanks Mark – I vaguely recall reading that one too. Bottoms out on naked assertions. I think that’s the nature of tradition, it’s sometimes not possible to articulate a reason for a rule.
Mark Field says:
Technically, the Commerce Clause imposes rational basis scrutiny on the power of Congress. In practice, that isn’t much of a limit.
The basic rule the Court has followed since the late 1930s is that set forth in Carolene Products fn. 4: (paraphrasing) if the issue involves the operation of the democratic system or equal rights under the law, we’ll look at it carefully; otherwise legislatures only need to act rationally. It’s not like the Court has been perfectly consistent on this, but it’s a reasonable description.
August 5, 2010, 3:31 pmJason says:
I wonder how many of my fellow brothers and sisters have wondered, that for any good (in this case a victory for gay rights)there is always unintended collateral consequences in anything in life. Just like in the particle physics laws that govern the universe, so here, are things no one person could have imagined could happen.
I know that sadly a majority of all voting adults in the U.S. will take their own personal opinions of their lifes experiences and vote in droves to undue yesterdays decision this November. I know the 9 Circuit Court of Appeals will vote in a 3 panel decision to uphold the District Courts decision on the merits. We all know this is then going to go the Supreme Court of the United States of America, and that Justice Kennedy will hold the keys to our fate. Justice Alito, Roberts, Scalia, and Thomas, are solid conservatives, while Justices Ginsburg, Kagan, Sotomayor, and Breyer will vote to uphold the 9 Cicuit. So Justice Kennedy holds the power over how all of this turns out.
That is what we all already know. What i fear we have not thought of is how voters react in other states. Will they fear us and race to elect anti homosexual politicans. Was this really the time to challenge Prop 8 in an election year that so favors the other party’s voting preferences? I think about these things and wonder if Judge walkers decision will last.
We all still in the minority and I fear voter backlash will set us all back for years. Math is math and Justice Kennedy might decide that balancing the majority of Americans opinions in most states, with his prior opinions in small cases that dealt with cases that only affect things like sex between consenting adults is one thing, yet overruling the thousand of years instution of marriage is not something he is willing to do just for the name of calling it gay rights.
We should have waited till we gain a fifth vote as much as i want this, I am smart enough to know the math is not in our favor. In my 77 years on Earth, I wonder if my young friends consider these collateral consequences.
August 5, 2010, 3:48 pmwtfci says:
Kennedy isn’t going to buy Walker’s “facts”. Walker cites social science. Even Justice Kennedy can drive a Smart Car over his “facts”.
Marriage is not a “right”. It’s a privilege. States such as Iowa have sought the proper course of legislative action to extend the privilege to new members.
August 5, 2010, 5:43 pmwooga says:
I thought Kagan testified that there was no Constitutional Right to gay marriage, but everyone here appears to assume she will vote to uphold this ruling. I’m looking forward to making a killing on InTrade when she sides with Scalia and Thomas on this case.
I believe that Scotus will uphold prop 8 (reversing this ruling), and in the process cut back on part of the loose language in Romer v Evans that led to Lawrence. Specifically, the court will return to a ‘status vs. behvaior’ distinction, and say that although anti-gay discrimination is wrong, prop 8 only restricts certain behavior.
I say this as someone who voted AGAINST Prop 8, but nevertheless disagrees with this ruling because it invents an indisputably new right to overturn a popular state constitutional amendment.
August 5, 2010, 5:50 pmMark Field says:
The Supreme Court has held the contrary for a very long time.
August 5, 2010, 6:40 pmJohn D says:
Walker did not find for a right to same-sex marriage. He held that there is a right to marriage that cannot be withheld on the basis of sex.
For that matter, Marriage Cases also did not find a right to same-sex marriage. It was just marriage, plain and simple.
So when Kagan says there is no right to same-sex marriage, she may eventually rule that gay people cannot be prevented from exercising their rights to marriage.
August 5, 2010, 6:58 pmAnonygrl says:
This would be true, except for the fact that it is complete horse pucky. He is a conservative, who has been consistently praised for his fair rulings.
August 5, 2010, 7:39 pmMark says:
One need only read Scalia’s dissent in Lawrence v Texas to know that his prejudice, resentment and self-righteous sense of entitlement to impose his own values on the rest of society render the factual record meaningless for him, and presumably Thomas and Roberts as well.
August 5, 2010, 8:10 pmyankee says:
That’s awfully unfair to CJ Roberts. Thomas joined Scalia’s whiny yet supremely self-satisfied dissent, but Roberts wasn’t around so we have no basis for assuming he would have done likewise.
August 5, 2010, 8:27 pmMark says:
Yeah, perhaps it is. But I don’t see anything in the record Roberts has compiled that gives me any hope that he wouldn’t do exactly as Rehnquist did.
On the topic of Scalia’s tone – it astounds me that it’s not a topic of real controversy. To me, to the extent that the way he writes is a reflection of the way he thinks, it demonstrates a deep unhealthiness of mind and spirit that I find scary in a national leader.
August 5, 2010, 9:02 pmJessica Wallyson says:
Jason you old stupid man we will win at the Supreme Court. Gay people will rule the world one day and how dare you use the composition of the court when you say “the math is not on our side.” If we took your advice we would never win. We must force this on the nation. Fuck the traditional marriage Judes on the Suprme Court. Plus I think Justice Kennedy will vote for us as he is very intune with the gay agenda. Just look at former Justice O’Conner she ruled in the gay favor no matter what.
August 5, 2010, 9:39 pmR. Kevin Hill says:
I think many of the above comments are confused about rational basis review. It is clear that in our caselaw, rational basis review itself bifurcates into what I recall in law school was called “RBR” and “RBR with *teeth*.” It’s not altogether clear how one can tell which one to use in a particular setting, but recall that in Plyler, and in Cleyburne, there was no suspect classification, and no heightened scrutiny, and yet the state action was held unconstitutional. Consider Cleyburne: here we have the denial of a permit to construct a home for the mentally challenged. Now this is not a suspect classification, and the Court does not want to make it too hard for the state to do things that *benefit* the mentally challenged by making IQ a suspect classification. But it doesn’t ask if there is a conceivable rationale either, because if it did, it comes out the other way: surely the presence of the home would depress property values in the area, so what more do you need? Who is to say which interest is more important?
In that case, the flunking of RBR-with-teeth hinges not on a refusal to second-guess the state in its policy wisdom, but on actual balancing accompanied by intimations that animus is at work in the facts. Whatever the state may be trying to do here is so absurdly disproportionate to the harms inflicted on the class that it is held irrational. The crucial point being: you can’t balance in *this* kind of EP case without a *factual* *record*.
And in Romer, the Court more or less announced: in cases where state action explicitly impacts gays, we use RBR-with-teeth.
Similarly here: which is why the factual record of the harms to the class, the negligible contribution to the alleged goal of promoting procreation, etc. are crucial to flesh out the intimations of animus and to perform the balancing. Walker did exactly what he was supposed to do, under the law as it *now* stands. What is more, I think there is enough there for a broad holding later (does the impact of deprivation of marriage or contribution to procreation differ wildly among the states? is there *any* reason to think this isn’t a representative situation?)
What is more, SCOTUS testiness about procedure obviously isn’t going to swing anything one way or another. We already know exactly how this will go, and exactly how each justice will vote.
August 5, 2010, 10:36 pmR. Kevin Hill says:
Right: in Va. v. Loving, for example. See the “and you know what else?” at the end of it. Due Process.
August 5, 2010, 10:43 pmtarun says:
Even if that were true, which according to the subsequent comments, it is not; this would seemingly argue that civil unions, as a marriage substitute, are destructive of marriages. And if civil unions do have less rights than marriages, as they do as they are not recognized by some states, then can civil unions be denied to heterosexual couples?
Although I expect that SCOTUS will ignore everything in the opinion and vote on partisan lines, but this opinion could play well with the non-bigoted conservative – putting teeth into rational basis review which could then be applied to other cases which involve an overbearing government (e.g. the Commerce Clause). The opinion is well written for such a general scaling back of the free pass of rational basis.
And anyone who asserts that marriage is not a right is definitely crazy, it is probably up there with procreation.
August 6, 2010, 1:44 amMartinned says:
Actually, with the exception of his Lawrence dissent, which is truly outrageous not just in content but also in tone, I tend to appreciate his writing even when I don’t agree with it. He certainly writes more legibly than most justices.
August 6, 2010, 8:46 amakryan says:
I read the opinion. I can’t think of the page off the top of my head but he did invoke both strict scrutiny and rational basis and ruled that Prop 8 passed neither. He rebuked Prop 8 so thoroughly that you got the feeling that he had been chomping at the bit to have this case come before him.
August 6, 2010, 9:52 amR. Kevin Hill says:
arkryan:
Walker cites the caselaw that says that marriage is a fundamental right (and you would think that triggers strict scrutiny) and he also says that sexual orientation ought to be regarded as a suspect classification under equal protection, which would also trigger strict scrutiny, but that these questions need not be reached because the state action flunks rational basis review anyway. I *think* that means that both strict scrutiny angles are *dicta*.
August 6, 2010, 10:40 amMartinned says:
I’ve been wondering about that, too. I think you’re right: everything about substantive due process and suspect classes is dicta.
August 6, 2010, 11:41 amJamie Ward says:
State constitutional amendments have been overturned for centuries. California constitutional amendments in particular.
August 6, 2010, 2:25 pmMartinned says:
Indeed. But do California state judges have the power to do it? After all, they’re bound by the supremacy clause just like everybody else.
August 6, 2010, 3:19 pmSomeGuyInBrooklyn says:
>John Doe: The problem is that the judge was “finding facts” that are not really factual under any rational definition of the term.For instance, the “fact” that Orin discussed in a prior post, that same-sex marriage would not in the future have any effect on normal marriage.That is a prediction, at best, not a “fact” arising from the case.
But this is a fact which can be shown, based on the experience of Massachusetts and other states which have same-sex marriages. If same-sex marriages have some effect on opposite-sex marriages, then one should be able to find this among the residents of Massachusetts. However, the FACT is that there is none.
Your use of the word “normal” displays your evident bias.
August 6, 2010, 3:57 pmSBD says:
What gives the United States District Court any authority to decide anything regarding a Constitutional Amendment in the State of California? This is not a statute that was enacted by the Legislature but is in fact part of our State Constitution and under that Constitution, only the voters in the State of California have the right to amend it. No where in the United States Constitution was such a right given or ever contemplated by our founders.
The Federalist No. 45
Alleged Danger From the Powers of the Union to the State Governments Considered
Independent Journal
Saturday, January 26, 1788
[James Madison]
http://www.constitution.org/fed/federa45.htm
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.
Before someone writes a post about slavery and the laws of the southern states, I will point out that it was the United States Supreme Court that enforced the slavery laws against the northern states before civil war.
In 1850, Congress passed the Fugitive Slave Act requiring escaped slaves be returned to their masters under penalty of federal law. In 1854, a slave named Joshua Glover escaped from Missouri to Wisconsin where he was arrested by a Federal Marshall and jailed in Milwaukee. A local politician, Sherman Booth, led a group of 5,000 citizens who broke into the jail and set Glover free.
Booth was arrested for violating the Fugitive Slave Act, the Wisconsin Supreme Court declared the law unconstitutional and ordered Booth freed. The US Supreme Court, in Abelman v. Booth (1859) overturned the Wisconsin decision and ordered Booth re-arrested. The Wisconsin authorities refused, and the state legislature passed the Wisconsin Declaration of Defiance.
http://en.wikisource.org/wiki/Wisconsin%27s_Declaration_of_Defiance
Resolved, That this assumption of jurisdiction by the federal judiciary, in the said case, and without process, is an act of undelegated power, and therefore without authority, void, and of no force.
Resolved, That the government, formed by the Constitution of the United States was not the exclusive or final judge of the extent of the powers delegated to itself; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
Resolved, That the principle and construction contended for by the party which now rules in the councils of the nation, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism, since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers; that the several states which formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a positive defiance of those sovereignties, of all Unauthorized acts done or attempted to be done under color of that instrument, is the rightful remedy.
The Court with authority over the matter, the California Supreme Court, has already decided the issue and declared Prop 8 Constitutional. That should have been the end of it.
August 6, 2010, 4:00 pmJohn D says:
SBD,
All the California Supreme Court ruled was that Prop 8 was validly enacted and therefore in granting equal rights to gay people, the term “marriage” couldn’t be used for any union granted after the election.
They made no ruling on whether this was permitted under the Federal Constitution.
August 18, 2010, 7:07 pm