As has been reiterated by every single commentator on this case, ad nauseam, Judge Walker's decision is the first step on a long road that will culminate in the United State Supreme Court.
But no one is taking much of a position on the real question: Will Judge Walker's decision hold up in the Supreme Court?
That's a question that requires a crystal ball, but there are some indicators that we can use to try to begin to get a handle around this question.
I distrust any analysis that is based solely on the perceived political preferences of the Justices.
While the politics of a judge is one factor to be considered, legal analysis is much, much more than that.
For example, we all know that Justice Scalia is extremely conservative in his views, but his positions often reflect a complexity that goes unacknowledged (or misunderstood) by political commentators.
One example that springs to mind is Justice Scalia's opinion in Oncale v. Sundowner Offshore Services, a landmark opinion that held that male-on-male sexual harassment is actionable, a hotly disputed point in the lower federal courts. In his opinion, he explicitly acknowledges that the meaning of "sex discrimination" has expanded over time to include newer understandings. That's not a "conservative" viewpoint in the commonly accepted sense of the term. (It is considered conservative in one sense, because it is a "textualist" interpretation favored by conservatives to get around liberal legislative intent.)
One of the major points made by Judge Walker in Perry is that "sex discrimination" encompasses sexual orientation discrimination. What will Justice Scalia say on that point? Will he say that the meaning of "sex discrimination" has expanded over time to include sexual orientation discrimination? Or will he say that is a step too far?
Let's look at the skeleton of Judge Walker's legal analysis.
1. Judge Walker said that Prop 8 failed the jello test. There are three levels of constitutional review by courts in these types of cases. Judge Walker gave justifications for use of the higher levels of scrutiny, which would make it easier to strike down the law. However, he used the easiest possible level of review, on the grounds that Prop 8 couldn't even pass that one. In other words, if Prop 8 were a brick, Judge Walker trotted out the legal equivalent of a sledgehammer, a tire iron and a block of jello. He said that Prop 8 deserved the sledgehammer test, and maybe the tire iron test, but instead used the jello test, and found that the Prop 8 brick couldn't even survive that. This was a smart move, because now the Supreme Court can't strike down his decision on the ground that he used too hard a test.
2. Under this easiest of constitutional tests, what I have called the jello test, the law must be rationally related to a legitimate government interest. Judge Walker said that Prop 8 was not rationally related to any legitimate government interest.
This test has two parts: 1) you need a legit government interest that the law is intended to achieve, and 2) the law must be rationally related to the achievement of that interest.
For example, if a state legislature passed a law outlawing the use of asparagus because it is a really ugly color. That would violate part 1 of the jello test, because the beauty of vegetables, or lack thereof, is not a legitimate government interest.
But what if the state legislature passed a law outlawing the use of asparagus on the grounds that doing so would promote psychological health? (Some studies suggest that dark green walls in institutions like jails and hospitals increases depression, ill-health and suicide.) Promoting psychological health is a legitimate government interest, isn't it? Yes, it is. But the asparagus ban is not rationally related to the achievement of that interest. It's not likely to have much of an effect on psychological health.
3. The lawyers supporting Prop 8 mentioned a number of legitimate government interests that Prop 8 was intended to support, like supporting fertility, the psychological health of children, tradition, and the First Amendment rights of those against homosexuality.
But Judge Walker held that, while these are, indeed, legitimate government interests, Prop 8 was not rationally related to them. It's like banning asparagus to promote psychological health. There's no relation.
Judge Walker carefully detailed the evidence submitted by the Prop 8 supporters in over 100 pages of the opinion, and concluded that they did not show that Prop 8 was rationally related to the achievement of the asserted interests.
That's going to be very hard for the Supreme Court to challenge. In order to do so, they must find that Judge Walker's factual findings were "clearly erroneous." That means they can't just say he's wrong. They have to point to specific items of evidence in the trial record that clearly contradict the facts he found.
But, as Justice Frankfurter famously said, "We are not final because we are infallible. We are infallible because we are final. So the Supreme Court can pretty much find a way to do whatever it wants.
4. Ultimately, what was left was the judgment of the People of California that same sex couples are inferior to opposite sex couples on moral and religious grounds. Judge Walker pointed to precedents of the Supreme Court to suggest that the mere belief in the moral inferiority of a group of people or their practices, without more (such as causing specific harms), is not a legitimate basis for a law.
That violates part 1 of the jello test. Belief in moral inferiority, for no good reason, is not a legitimate government interest.
So what will the various Supreme Court Justices say about Judge Walker's elegant analysis? It all depends on their view of the "jello" test. It turns out there are three ways to use the jello test.
In Part II, I will explain which Justice holds to which view, and how strongly they are likely to feel about it in the context of this specific case.
I think you'll be surprised by what I come up with.