Dr. Jillian T. Weiss

Brief Summary of Judge Walker's Reasoning in Perry v. Schwarzenegger

Filed By Dr. Jillian T. Weiss | August 04, 2010 7:00 PM | comments

Filed in: Marriage Equality, Politics, The Movement
Tags: California, gay marriage, marriage equality, Prop 8, Prop. 8, same-sex marriage, US District Court, Vaughn Walker

Judge Walker said that he found Prop 8 in violation of the Due Process and Equal Protection Clauses of the US Constitution. Our hero! vaughnwalkersf.jpg

Here's a quick definition of these terms:

Due Process: the gov't may not deny anyone life, liberty or property without due process of the laws.

Equal Protection: the gov't may not deny to any person the equal protection of the laws.

Judge Walker held that the the right to marry for same-sex couples is a fundamental right, the same as for opposite-sex couples. That's revolutionary.

Domestic partnerships do not satisfy the rights of same-sex couples because they were created in order to deny same-sex couples the right to engage in the institution of "marriage," while approximating the benefits of marriage. Domestic partnership is a substitute and inferior institution.

He said the evidence showed that same-sex couples and opposite-sex couples are equal in fact, and should be equal in law. The only difference between them is an intangible one: moral disapproval by opponents, and that's not a legitimate reason for a law.

Well done, Judge Walker!

More summary of Judge Walker's reasoning after the jump.

How Important A Right Is Marriage As Applied To Same-Sex Couples?

Judge Walker found that, as a fundamental right, the right to marry cannot be denied by law under the Due Process clause; that is, unless there is a "compelling" reason to do so.

This is important, because whenever a "compelling" reason is required, the law usually gets struck down.

He found that there is no such compelling reason. He also went even further, and said that there is no legitimate reason at all, compelling or not.

This is important on appeal, for the appeals courts may decide that the right to marry as applied to same-sex couples is not a "fundamental right." If that happens (as I think likely), they will look for any legitimate reason to uphold Prop 8's denial of marriage to same-sex couples. Thus, Judge Walker's decision, while calling the right to marry as applied to same-sex couple a "fundamental" right, also finds that, even if judged under an easier standard, Prop 8 violates due process and equal protection.

He also bolstered his case that a compelling reason is required. He said that denial of same-sex marriage is sex discrimination. Sex discrimination is constitutionally prohibited. However, laws discriminating on the basis of sex usually don't require a "compelling" reason -- the Supreme Court has called this an "intermediate" level of scrutiny. The reason would have to be "important," rather than "compelling." These are the games that lawyers play, but even an intermediate level of scrutiny would be a huge win.

Judge Walker reasoned that gays and lesbians are discriminated against because of their sexual orientation, and because of their sex. That's something that a lot of courts have gotten wrong. They say that "sexual orientation" discrimination is separate from constitutionally-prohibited "sex discrimination." But Judge Walker reasoned that gays and lesbians can't marry because of their sexual orientation towards a partner of the "wrong" sex.

Thus, according to Judge Walker, anti-gay discrimination is constitutionally prohibited sex discrimination. This is Judge Walker's fail-safe provision, in case the appeals court doesn't go along with the "gay-marriage-is-a-fundamental-right" approach. Judge Walker is saying that it's not just a gum, it's candy too. It's both a "fundamental right" and its denial is "sex discrimination." The first would require a "compelling" reason to uphold the law, and the second would require an "important" reason to uphold the law.

Anti-marriage advocates argue, however, that there's no discrimination against gays and lesbians, because the marriage law is neutral and non-discriminatory towards gays and lesbians -- it doesn't even mention them. But the Judge noted that Prop 8 does, in fact, reference gays and lesbians, because it says they can't get married. So there can be no pretense of neutrality.

The Judge also said that homosexual attraction is constitutionally protected. This is another fail-safe. If the appeals courts say he's wrong on the "gay marriage as fundamental right" approach, and the "sex discrimination" approach, they might go for his "sexual orientation is a protected category" approach. "Protected category" means you can't make a law against it unless you have a "compelling" or "important" reason.

Indeed, homosexual conduct and attraction are constitutionally protected and integral parts of what makes someone gay or lesbian. Lawrence, 539 US at 579; FF 42-43; see also Christian Legal Society v Martinez, 561 US __, 130 SCt 2971, No 08-1371 Slip Op at 23 ("Our decisions have declined to distinguish between status and conduct in [the context of sexual orientation].") (June 28, 2010) (citing Lawrence, 539 US at 583 (O'Connor, J, concurring)).

Lawrence is a reference to the Supreme Court decision that struck down the anti-sodomy criminal laws, and Christian Legal Society is a reference to the recent Supreme Court decision that held that a public college could enforce its non-discrimination policy as against a school organization which objected based on religious beliefs.

The idea that homosexual attraction is constitutionally protected is one step beyond the Lawrence and Christian Legal Society decisions. The Lawrence decision said that homosexual activity is protected from criminal sanctions because of the right to privacy. The Christian Legal Society decision said that religious beliefs against homosexuality can't be used as an excuse to avoid non-discrimination law protecting sexual orientation in a public college setting. Judge Walker is taking this one step further, saying these decisions mean that sexual orientation is a constitutionally protected category generally, and in the context of marriage. The appeals courts might have something to say about this.

Thus, the Judge found that "sexual orientation" discrimination -- often ignored by federal courts as "unprotected" by the Constitution, is, in fact, equivalent to a sex discrimination claim. That's revolutionary.

No Good Reason

Whether the reasoning needed to uphold the law is a "compelling" one, or an "important"
one, or, even if any silly old reason will do, Judge Walker said there is actually no legitimate reason whatsoever for Prop 8.

Here's why Judge Walker said there is no legitimate ground for Prop 8.

In analyzing the reasons given by the government in support of Prop 8, Judge Walker said none of them amounted to a hill of beans. The only real difference the government came up with is a difference between the potential fertility of same-sex couples and opposite-sex couples. But he said the government did not advance any reason why that justifies Prop 8. It's a difference without a distinction. It's like having blue eyes versus brown eyes. Yes, there is a difference, but it doesn't really mean anything about the person.

The government also pointed to tradition as a basis for the law. Judge Walker knocked down this "Fiddler-On-The-Roof" argument. He noted that the Supreme Court has said that tradition alone cannot form a rational basis for a law, and that the "ancient lineage" of a classification does not make it rational.

The government tried to bolster the law by saying that time is needed to integrate such a "sweeping" social change. But Judge Walker said the evidence showed this isn't true because allowing same-sex couples to marry has a neutral, if not a positive, effect on the institution of marriage, same-sex couples' marriages would benefit the state, and the rights of those opposed to homosexuality or same-sex couples will remain unaffected. There was no reliable evidence presented of any negative effects on society or on the institution of marriage. The state needs no significant lead time to integrate same-sex couples into marriage. because it already did that after the original ruling. The state married 18,000 same-sex couples with no apparent problems.

The government also said that Prop 8 will be better for children, as Prop 8 will encourage stable, two parent, opposite sex families. Judge Walker, however, said the evidence showed that same-sex parents and opposite-sex parents are of equal quality. Prop 8 does nothing to make it more likely that opposite-sex couples will marry and raise biologically-related offspring. It doesn't even affect who can become parents under California law.

Judge Walker also rejected the idea that the First Amendment rights of anti-gay people are involved here. The government argued that Prop 8 preserves peoples' right to guide their kids' moral development and education and to object to same-sex marriage. Judge Walker said that Prop 8 is simply irrelevant to such concerns, because it only prevents same sex couples from marrying. It doesn't purport to affect childrens' moral development or the rights of those who object to same-sex marriage.

In other words, if you don't like same-sex marriage, tell your kids you don't like it and don't get married to a same-sex partner. You don't need Prop 8 for that.

The government also said that same-sex marriage is different in important ways from opposite-sex marriage, and should be called by a different name and be under different rules. But Judge Walker said that the evidence thoroughly rebutted the idea that there is any real difference. The only difference is an intangible one, in the religious and moral judgment that opponents put on it.

Fear and Loathing In California

Summing this up, Judge Walker said that many of the purported government interests are nothing more than fear and dislike of same-sex couples.

The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.

Thus, according to Judge Walker, the evidence showed conclusively that "Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples."

Therefore, Proposition 8 violates the Due Process and Equal Protection clauses of the United States Constitution.

If you want to see the cartoon video version of Judge Walker's ruling, click here.

My predictions of what the Supreme Court will do with this can be found here.


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The idea that homosexual attraction is constitutionally protected is one step beyond the Lawrence and Christian Legal Societydecisions. The Lawrence decision said that homosexual activity is protected from criminal sanctions because of the right to privacy. [...] The appeals courts might have something to say about this.

I'm not sure that, read as a whole, Walker is tackling the attraction/action distinction in this ruling. I think he merely dabbles with it. He leaves it ambiguous because Prop 8 is not about that. Rather, he argues that if Prop 8 were really about "California’s interest in mandating sexual activity to occur within marriage, and parenting to occur within marriage," (as some many supporters of Prop 8 argue) the proposition does not help this one iota because it actually requires that some sexual activity and parenting occur outside of marriage. This is because there are lawful same-sex headed families in California. Hence, whether homosexuality is a "choice" or not, there is the question of the welfare of these already existent families. In many ways, I think the ruling is state-specific because of the nondiscrimination laws in California about "sexual orientation," so I'm hopeful that the US Supreme Court might recognize this. Otherwise, they would have to tackle the concept of "sexual orientation" as it exists in numerous local and state laws, which I think is--for better and for worse--beyond the purview of a federal court.

Thank you Dr Weiss. I have been waiting, since I heard the announcement earlier today, for my last student to leave so that I could see what you would redoubtably have to say about this.

Oh, and...

the Judge found that "sexual orientation" discrimination -- often ignored by federal courts as "unprotected" by the Constitution, is, in fact, equivalent to a sex discrimination claim. That's revolutionary.

Actually, it's not so much. Discussion during the time of ERA included "if discrimination on the basis of sex is wrong, then same-sex couples might get to marry." The Mormon Church, for example, had this concern and listed it as one of the reasons for not supporting the ERA in the 1970s/80s. So, the idea has been out there mostly because of how "sexual orientation" is definitionally linked to "sex." What I'm less sure about is how the courts have taken up this argument -- that is, if it's revolutionary for the courts.

It is revolutionary for the courts. In cases such as Simonton v. Runyon and Dawson v. Bumble, the courts have routinely held that sex discrimination cannot encompass sexual orientation discrimination.

Could an appeals court simply reassert that "sex doesn't extend to sexual orientation," or would they have to logically outwit Walker?

It's unlikely the appeals court would simply make a blanket assertion like that. Too risky for them. They would probably try to make a big deal out of the difference between the two, and minimize the relationship. They would also have to knock down Walker's assertion that marriage is a fundamental right. They'd probably do that by saying that opposite sex marriage is a fundamental right, and they don't have the power to redefine marriage as same sex couples, a power which belongs to the legislature.

Wow, Dr. Weiss, I think you hit the nail on the head. That breaks it down into very digestible English. Seeing as how most of my college age straight friends had no idea this was even going on, much less what I meant when I explained it, I'm gonna just point them to this.

~Taelyn

i almost fell out when i read this about the defense's best expert witness:

After Blankenhorn completed his education, he served as a community organizer in lowincome [sic] communities, where he developed an interest in community and family institutions after “seeing the weakened state” of those institutions firsthand, “especially how children were living without their fathers.”

what?

a (gasp!)...community organizer?

that'll teach the right wing to trust a former community organizer, eh?

Here's a little video I did.

The Bilerico Players Present: The Prop 8 Decision Explained

Slightly odd, but satisfying in a quirky way, I think. Warning NSFW (if you work for NOM). And there are fart jokes and other humor slightly inappropriate to the gravity of the occasion. Ah well. There goes my Supreme Court nomination.

Great video Jillian!

One minor correction: It was not "the government" that made the arguments in defense of Prop 8. Governor Schwarzenegger and Attorney General Brown of California refused to defend Prop 8 because they too believed it unconstitutional. The official proponents who qualified Prop 8 for the November 2008 ballot intervened as defendants to support Prop 8. The arguments described by Professor Weiss were made by these Defendant-Intervenors, not "the government."

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.

Oh, good point, Professor Cruz! Yes, you are correct, I should have said Defendant-Intervenors.

I still remember you fondly from our meeting at some academic conference a zillion years ago. I so appreciated your kind words, a time in my life when few had any kind words.

This has to be one of the best summaries I've seen online so far, Jill. I totally poached from this when I did an interview on FOX Radio this morning. ;)

What a thorough decision! It's always nice when someone stops and asks rightwingers, "Wait, what does that actually mean?"