Dr. Jillian T. Weiss

Will Judge Walker's Decision Hold Up In the Supreme Court?

Filed By Dr. Jillian T. Weiss | August 06, 2010 7:00 PM | comments

Filed in: Politics
Tags: Perry, perry vs schwarzenegger, Prop 8, Prop. 8, Supreme Court

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.


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*gasp*
Stay tuned?
Same Bat cannel?
Same Bat time?

Arrrrgggggg!!!!!

Now to go find some jello and asparagus.

So far it has just been round 1 2 more to go so yes stay tuned folks and the Judge still has to say if Prop 8 can be ignored or enforced till the final appeal is heard.

Asparagagus & Jello test! Great way to explain this! To bad almost half of the nation could not grasp what you are saying!

It took me a while to realize you were talking about the color asparagus and not the vegetable. I was like, prisons ban putting asparagus on the walls? I would think they do!

Anyway, sounds like a good decision. So if the Supreme Court hears the case and decides Walker was right, that means everyone in the US can get marriage equalitied, right?

Thanks, Jillian.

I keep wondering if the Prop 8 proponents have some sort of nuclear option, like firing some or all of the legal team, claiming legal malpractice on their part, and arguing that findings of fact need to be re-litigated.

Obviously a layperson here...

I wouldn't be to surprised if you predict that some if not all the Conservative Justices see the wisdom of this ruling.In some of the gay rights cases all ready tried Conservatives have made decisions in favor of gay rights and of equal marriage rights.So as George Michael sang "You Gotta Have Faith."

Bill Perdue Bill Perdue | August 7, 2010 12:58 AM

The only real weapon we have to pressure the 9th Circuit and the Supremes is to escalate mass action and direct action.

That, and only that, can force concessions.

The Supremes make gestures towards democracy and equal rights when they're compelled to by mass movements.

Occasionally they rule in response to world opinion about US backwardness. A worldwide campaign by leftists painting the US as a backward racist swamp played a secondary, but real ole, alongside of the persistent efforts of the Black community in Brown v. Board of Education (I) , 347 U.S. 483 (1954). Likewise, widespread criticism in EU legal circles played a secondary role to the growth and militancy of the LGBT movement in overthrowing sodomy laws in Lawrence v. Texas, 539 U.S. 558 (2003).

Great article. Hurry with part 2

Andrew Belonsky Andrew Belonsky | August 7, 2010 8:37 AM

Thank you for breaking it down, Jillian! I think we all need to "digest" this ruling and consider the ramifications, yes, and also the larger, "meta" picture of how our legal system works. This process should be used as an example of checks-and-balances for school children, but then the right wing would shriek about gays in school, naturally.

any thoughts on how scalia's dissent in lawrence might telegraph his views on this one?

I'm totally posting this to Facebook as "How will the Supreme Court rule? Dr. Weiss explains it all with jello and asparagus."

Jello and asparegus …they don’t go together. Now a nice savory aspic and asparegus… that could work.

But the jello really does need a nice fruit to go along with it or whipped topping.

Nice explanation so far, I look forward to part 2.

The one thing I really haven't seen analysts take into account is Scalia's fealty to precedent. Given his dissent in Lawrence, which has essentially come true, it would seem to me that since Lawrence is the law of the land that Scalia cannot rule against the Walker decision without both overturning Lawrence and/or going completely against his claimed philosophy of adherence to precedent. I don't think that the Court is ever going to reverse Lawrence.

Excellent analysis. Any thoughts on the idea that Perry may never get appealed to the Ninth, much less to SCOTUS, because the Yes on 8 folks lack standing to appeal? I think that move, which AFER and the City of San Francisco bring up in their motion in opposition to a stay of the ruling, is a MUCH bigger bombshell.

In a nutshell, from a non-lawyer, it seems that Justice Ginsburg, in the opinion to Arizonans for Official English v. Arizona (which was decided on other grounds), expressed "grave doubts" as to whether the proponents of a ballot measure (such as Prop 8) had standing to appeal a federal court ruling in the absence of governmental actors making an appeal.

This, apparently, is why Imperial County tried to get in on the case in the eleventh hour - the haters realized that without a government entity willing to appeal, they could be shit out of luck. But Walker shut them down, both saying they didn't have a good reason to be let in and that they waited until after the deadline, so they're SOL. So unless the Governator or (once and future) Governor Moonbeam have a sudden change of heart and decide to appeal the ruling (or Imperial County convinces a higher court that they really should be in on the case) Walker's ruling could be the final word.

That would mean that the case doesn't go up, Prop 8 is struck down, and marriage returns to California with no worries about SCOTUS. In the meantime, Gill v. OPM will go up, with a much smaller ask of the Supremes, which should give us a better idea as to whether or not a ruling in our favor in a Perry type case is even a possibility at this point. If so, there's 37 other states where this kind of suit can be filed and go forward. If not, well, then we can go back to the state-by-state strategy with California firmly in the "win" column.

At least, that's how I understand it...

I think you'll be surprised by what I come up with.

Since my knees are already like jello, Jillian, I'm sure you will be able to knock me over with a sprout of overcooked asparagus.

I can't wait, but I guess that in will have to.

Maybe this is cynical of me, but I think that Scalia wrote what he wrote in Oncale in large part because he was disgusted by man-on-man sexual harassment. A close reading of the facts of the case reveals that the victim was a heterosexual male who was subjected to humiliating hazing by his heterosexual coworkers, including attempted anal penetration with some kind of tool. I don't think Scalia was making a progressive decision that sexual harrassment had changed, but instead was using his authority to give heterosexual men an opportunity to protect themselves in court from scary man-on-man sexual harrassment.

Much appreciate the lawyerly discussion but could you use something other than asparagus and jello. Jello isn't vegetarian and asperagus makes your pea stink.

But seriously, Kennedy/Scalia/Thomas/Roberts... support this decision? (Alito... maybe a possibility... but not likely). These characters are going to be around messing up this country for a looong time.

A friend of mind who came from Colorado is visiting me and she pointed out that the Prop 2 decision in the Supreme Court in 1996 stated that you cannot prevent any group of people from access to the justice system.

She also pointed out that ALL marriages are first and foremost "civil unions," because they start in the court house and if you want to end it, it ends in the court house. They are "legal contracts" between two people, making them part of the justice system. Churches can only officiate in the ceremony, but the signing of the document can take place in the church or in the court house. However, churches do not need to be in the mix, yet the justice system has to be.

As I understand her explanation, if the Prop 2 decision by the Supreme Court in 1996 said that all citizens are suppose to have access to the justice system and the justice system is required to get a marriage license, then wouldn't states with marriage amendments be violating the Prop 2 decision?

A friend of mind who came from Colorado is visiting me and she pointed out that the Prop 2 decision in the Supreme Court in 1996 stated that you cannot prevent any group of people from access to the justice system.

She also pointed out that ALL marriages are first and foremost "civil unions," because they start in the court house and if you want to end it, it ends in the court house. They are "legal contracts" between two people, making them part of the justice system. Churches can only officiate in the ceremony, but the signing of the document can take place in the church or in the court house. However, churches do not need to be in the mix, yet the justice system has to be.

As I understand her explanation, if the Prop 2 decision by the Supreme Court in 1996 said that all citizens are suppose to have access to the justice system and the justice system is required to get a marriage license, then wouldn't states with marriage amendments be violating the Prop 2 decision?

I think what your friend is referring to is Kennedy's statement in Romer that Prop 2 singled out a specific group and imposed on them a special disability in the political process unrelated to any rational state interest. In other words, under Prop 2, any group in Colorado could go to the legislature or their city council to pass civil rights laws except for gay men and lesbians, without there being any legitimate reason for this to be the case. Lacking a legit reason, Kennedy found that the law must have been passed due to anti-gay animus, which is unconstitutional.

Walker has teed up his ruling to appeal to Kennedy and the Romer ruling specifically. But Kennedy also wrote in Romer that Prop 2 was so unique and so far outside of "our constitutional tradition" that it confounded traditional review. His emphasis is that Prop 2 is a one-of-a-kind law, the only purpose of which is to hurt a politically unpopular group. It's unclear whether he'll see 38 constitutional amendments reserving marriage for opposite-sex couples in the same way. Long story short (too late), in order to violate Romer the amendments would have to not only impose a special disability but ALSO do so strictly out of anti-gay animus. Since folks from the Obama administration to the high courts of several states (including New York, in their "breeders are stupid and need marriage because they can get accidentally preggers" decision) have said that there IS a rational reason to limit marriage, it's possible Kennedy could find one of those reasons compelling.