Nan Hunter

Why Judge Walker's Questions Are Important

Filed By Nan Hunter | June 09, 2010 3:00 PM | comments

Filed in: Marriage Equality, The Movement
Tags: California, equal protection clause, gay marriage, Judge Walker, marriage, marriage equality, Prop 8, same-sex marriage, Vaughn Walker

During the four months since the big Prop 8 trial ended, Judge Vaughn Walker has presumably been reviewing the transcript and drafting his opinion. Yesterday he issued a list of questions "to assist the parties in focusing their closing arguments" that he will hear on June 16 -- in other words, to get the lawyers to spend their argument time addressing what he is concerned about. [Link to full list of questions here.]

It's quite a list. And if the questions are any indication, the Walker opinion will be a blockbuster, at least in terms of its scope, depth and detail. Court decisions generally take an analysis far enough to resolve the particular issues presented, but no farther. But from the beginning of this case, Judge Walker has indicated a willingness to dig deeper, by forcing both sides - plaintiffs and defendants initially both resisted the demand for extensive evidence on the ground that it was unnecessary - to come up with evidentiary support for the kinds of quasi-philosophical arguments that make constitutional law so fascinating.

Like the trial itself, Judge Walker's post-trial questions range all over the place, including history (how can a right be characterized as fundamental, given the Supreme Court's focus on tradition, when it did not exist in American society until a few years ago), culture (what is the difference between gays and lesbians on one hand and heterosexuals on the other), and economics (why is it relevant that state and local governments would benefit economically if same-sex couples could marry, especially if the magnitude of the benefit is small). The list consists of a dozen questions for each side, plus a dozen more for both sides.

Judge Walker pushes the plaintiffs, for example, on the significance of voter intent. If the voters honestly believed that Prop 8 was rationally related to a legitimate state interest, should the court defer to that even though the evidence introduced by defendants at trial failed to demonstrate a rational basis? That resonates with a core governance question in a democracy, where courts do not attempt to second guess voter (or legislator) motivations, so long as the standard of review is set at the low "rational basis" level. In the law of some states, the standard of review for classifications that discriminate based on sex/o is now higher than rational basis. But there is less support for heightened scrutiny under federal law, which is what governs in Perry. So one major threshold question facing Walker is which standard of review he should use in his analysis (which is one of his questions to both sides). If the answer is rational basis, he runs into, among other things, the question of deference to majoritarian democracy.

The judge's questions to the defendants press them, in various ways, on why allowing same-sex couples to marry should be such a big deal under the law: What is the evidence of negative social consequences? What is the magnitude of those consequences? What is the evidence that "same-sex marriage is a drastic or far-reaching change to the institution of marriage?" Except for fertility, how are same-sex couples different from opposite-sex couples vis-a-vis marriage? Why is the "deinstitutionalization" of marriage bad? To the extent that moral disapproval of homosexuality is at the bottom of this, how is that different from discrimination?

One of Judge Walker's concerns gives me some apprehension: he seems to have been drawn into what I consider to be the deadend of thinking that immutability has any constitutional significance. Thus these questions to both sides: "What does it mean to have a 'choice' in one's sexual orientation?" "What are the constitutional consequences if the evidence shows that sexual orientation is immutable for men but not women? Must gay men and lesbians be treated identically under the Equal Protection Clause?" Note to Judge re: that last question: have you ever heard of sex discrimination?

And then, my absolute, all-time favorite question that I have ever seen a judge ask: "Assume that the evidence shows that sexual orientation is socially constructed. Assume further than the evidence shows Proposition 8 assumes the existence of sexual orientation as a stable category. What bearing if any do these facts have on the constitutionality of Proposition 8?"

Maybe I could suggest some reading...

Cross-posted at hunter of justice

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Woody14619 | June 10, 2010 11:10 AM

I have a simple answer to what I see as the pivotal question here:

What does it mean to have a 'choice' in one's sexual orientation?

The underlying assumption is that if one "chooses" to be gay or lesbian, that it in some way negates the need to protect that class. This is a false assumption.

Even assuming sexuality is a choice, what difference is there in protecting the choice to be homosexual versus the choice to be Christian (or Jewish, or Muslim). If religious people must be protected based on their choice to practice their religion, so must those that "choose" to live their life as gay or lesbian.

If sexuality is not a choice, then it's a trait, which is clearly protectable just like race or ethnicity. So no matter which side of the debate you fall on (or even if you fall in the middle, saying there is some level of choice and some level of genetic disposition), there are already examples of protection for both sides of the debate.

I do like the depth of the questions the judge is asking though. I think that logistically it will be hard for the pro-Prob8 folks to justify their side without admitting religious bias and/or discrimination.

Substantively you are right in that there is not a fundamental difference between one's sexual "preference" (to use the old terminology) and one's religious "preference" if we are talking about sexual orientation as a choice. Legally, however, the choice about religion is constitutionally enshrined in the first amendment in a way that one's sexual orientation (or "preference") is not. Thus for a judge who has to rely on the law, if one's attraction to the same sex is "merely" a preference, s/he might want to wait till it is constitutionally (or at least legally) classified as a preference requiring judicial protection of some sort.

GREAT breakdown, Nan. I see Andrew Sullivan linked you as an important voice talking about the issue. I agree with him wholeheartedly!

OK, I do love that last question too. The defense was arguing that sexual orientation was socially constructed, if I remember correctly, which was a weird position for them to take because even though some uber-homophobes have fallen in love with queer theorists over the last decade, they don't seem to understand that homosexuality being socially constructed also means that heterosexuality is socially constructed. When they started to present those arguments in the trial, I thought about how great it would be if they actually believed what they were arguing - that everyone is bisexual - because then they'd pack up their bags and stop with this whole war on queer people.