It’s In: An Analysis of the Proposition 8 Ruling


Ari is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His area of expertise are criminal law, criminal procedure, LGBT law and law and economics.

Olson_boies Proposition 8 is a violation of due process and equal protection. Judge Vaughn Walker has made that abundantly clear.

But what is the immediate result of this ruling? Judge Walker concluded his Order by stating that "California is able to issues marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result." And, I just checked. My sister's heterosexual marriage has not been destroyed either.

That said, it is highly unlikely that any same-sex marriages will be conducted tomorrow.  As posted here earlier, Proposition 8 supporters have already filed a pre-emptive motion to stay Judge Walker's order pending their appeal to the Ninth Circuit Court of Appeals.

This should not dampen our elation.  This decision is momentous and a giant step forward toward legal recognition of our equal rights.


UPDATE:  The Devil is in the Details

Judge Walker's decision runs 138 pages.  It is well-reasoned, exhaustively cited and drafted with one eye on its Main Street ramifications and another eye on the judges of the Ninth Circuit Court of Appeals.  In other words, this Order establishes a comprehensive factual record for review.  And that, as any appellate lawyer knows, is going to be the source of our salvation or the harbinger of our defeat.

When the decision of a trial judge like Judge Walker goes up on appeal, his legal conclusions are reviewed by the appellate court de novo, or "from the beginning."  That means that Judge Walker can conclude that Prop 8 violated the Equal Protection clause and the Due Process clause for this or that reason, but appellate judges are not bound by his conclusions.  However, Judge Walker's factual findings — such as the effect of same-sex marriage in Massachusetts or statistics on thriving children of same-sex couples — must be accepted by the appellate court unless they are "clearly erroneous."  A clearly erroneous finding of fact is looking up at the sky, seeing it is blue and having a weatherman tell you it's blue, but concluding that the sky is, indeed, red.  We do this because it was Judge Walker who heard the evidence and evaluated the trustworthiness of the witnesses with his own two eyes.

Judge Walker's factual findings are breathtaking, if only for their sheer depth.  From page 54 to 109, Judge Walker lays out his findings, eviscerates the testimony of anti-marriage equality experts and emphasizes the long list of statements where Prop 8 opponents conceded their factual case.  In my years as an appellate litigator, I have never seen a factual record as detailed and well-documented as this.  My compliments to Judge Walker and his clerks. 

Let me highlight a few striking points here:

1.  This case is about civil marriage.  Religious belief has no place here.

Right off the bat, Judge Walker found that "[m]arriage in the United States has always been a civil matter" (p. 60, para. 19).  The pen is indeed mightier than the sword.  We watched with dismay, anger and frustration as Prop 8 supporters screamed that marriage equality laws would forces churches and synagogues to consecrate relationships contrary to their liturgy.  In one line, Judge Walker does away with this nonsense.  What we are dealing with here, he states, is civil marriage.  After all, it is the "[c]ivil authorities [who] may permit religious leaders to solemnize marriages but not to determine who may enter to leave a civil marriage." (p. 60, para 19).  The supremacy of civil marriage takes this conversation out of the church and onto the town square.

2.  Marriage is a state of commitment, not a construct in which to have children.

Just as important is Judge Walker's findings about the nature of marriage. "Marriage is the state recognition and approval of a couple's choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents" (p. 67, para. 34).  Absent from this definition, based on extensive citations to evidence offered at trial, is marriage based on procreation or gender-specific roles.  A marriage is a partnership based on deeply held emotional love and, as an institution, channels benefits to the married couple, their dependents and society at large.  What's more, each of those benefits — facilitating order, creating a realm of intimacy, creating stable households, providing children with support structures, assigning caregivers, facilitating property ownership and incentivizing healthy behaviors — exists irrespective of the gender and sexual orientation of the married couple (pp 67-71).

3.  Same-sex couples are just like opposite-sex couples.

The entree to these appetizers came later.  Judge Walker found that "[s]ame-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.  Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners.  Standardized measures of relationship satisfaction, relationship adjustment and love to do not differ depending on whether a couple is same-sex or opposite-sex" (p. 77, para. 48). 

And on the seventh day, he rested.

Seriously, though, this profound description of equality is at the heart of the marriage equality movement.  Judge Walker cites Prop 8 supporters' admissions at trial that gay partnerships are loving and commitment and that the capacity to commit and love "does not depend on the individual's sexual orientation" (p. 77, para. 48(d)).  We are all the same and we all deserve to be treated as such.

4.  Domestic partnerships insufficiently recognize those relationships.

Since marriage is not merely an economic union, or a procreative one, for that matter, domestic partnerships that assign certain economic benefits of marriage to nonmarried cohabitants is a separate, unequal and insufficient substitute.  "Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States" (p. 80, para. 52).

Judge Walker recognizes that we do not want to marry the loves of our lives for the joint tax return or the prospect of doubling our wardrobes.  That might be part of it, but it's not the whole story.  Citing expert testimony about the cultural importance tied to marriage, Judge Walker finds that marriage is greater than the sum of the economic rights associated with it.  And, since same-sex couples are no different in their love and commitment than opposite-sex couples, there seems to be no reason to exclude them from this institution.

In the end, it is hard to accept these facts and not conclude as Judge Walker did.  Nothing here is clearly erroneous and any appellate court will be hard-pressed to upset any of these factual findings.

UPDATE:  The Law Likes Equality

The United States Constitution has an annoying habit of defaulting to equality.  There are times when unequal treatment is legitimate; we don't allow 14-year-olds to vote, for example.  But, for the most part, the Fourteenth Amendment sets the foundation for treating each other the same, regardless of race, religion or gender.  Now, with all cautious optimism aside, Judge Walker's decision allows us to add sexual orientation to that list.

Judge Walker's legal conclusions are simple.  Proposition 8 violates the Equal Protection clause and the Due Process clause because in denying a homosexual's right to marry a person of the same sex as he or she sees fit, Prop 8 classifies and discriminates against a particular class of people for no legitimate reason.  It's a little more complicated than that, so let's go through it step by step.

Due Process.  As previewed earlier, Judge Walker was faced with the notion that the freedom to marry has previously been considered a fundamental right and abridgments of fundamental rights must pass strict scrutiny to pass constitutional muster.  But, the issue is not whether the right to marry is fundamental — no one disputes that (p. 110); rather, the question is whether same-sex couples are seeking to exercise that right to marry or are they trying to establish a new right.  Prop 8 proponents argued that the right to marry someone of your same sex is a new right and, thus, not fundamental.  Judge Walker disagreed.  The only factor distinguishing same-sex and opposite-sex couples is the natural ability to procreate, but "[n]ever has the state inquired into procreative capacity or intent before issuing a marriage license" (p. 111).  Instead, what has remained constant about marriage is not the parties to a marriage — it was not long ago that blacks and whites could not marry each other — but that two individuals freely commit to one another.  The true shibboleth of marriage, then, is love and commitment, not procreation.  As such, this is a fundamental right.

So, the plaintiffs simply want California to recognize their fundamental right to marry whomever they choose.  That itself does not mean Prop 8 is unconstitutional.  Laws can interfere with fundamental rights and not run afoul of the Due Process clause as long as they pass strict scrutiny, that high hurdle that, in legal lingo, requires the law to be "narrowly tailored to a compelling government interest."  In other words, the law has to be specific, engulf as few people as absolutely necessary in order to do something the government really must do.

Prop 8 comes nowhere close to that standard.  Once again, the facts offered into evidence at trial play an important role.  Unfortunately for Prop 8 proponents, they offered no facts.  When Judge Walker asked for their evidence, Prop 8 proponents declined to prove the compelling need, relying instead on "the nature of traditional marriage."  On that "minimal evidentiary presentation," Prop 8 could not pass strict scrutiny.

One down.

Equal Protection.  Judge Walker held that even under the much lower rational basis test, Prop 8 does not pass muster.  He was thorough enough, however, to include a strict scrutiny analysis just for good measure.

Under rational basis review, a law can discriminate as long as it does not target a specific suspect class or impairs a fundamental right and is "rationally related to some legitimate government interest."  That sounds complicated, but it's really pretty easy to jump that hurdle.  Most laws will make it because there are plenty of rational reasons to do things.  But a reviewing court cannot rubber stamp a law simply because someone says their justification is rational.  Not every justification is rational.  In particular, discriminating against a particular group of people simply because you don't like that group is neither rational nor related to a legitimate government motive.

The trial evidence, however, suggests that gay people are a suspect class because they have "experience[d]iscrimination based on unfair stereotypes and prejudices specific to sexual orientation."  They have "historically been targeted for discrimination because of their sexual orientation" and that discrimination is ongoing.  And Prop 8 falls into that category.  Proponents argued that it couldn't discriminate against gay people because Prop 8 never mentioned the word gay.  That's being too cute by half.  By defining marriage in terms of opposite sex, those who would choose to marry someone of the same sex — only homosexuals fit that category — have had their rights taken away.

But that is what lawyers call "dicta", or, conclusions of law in an opinion that do not bear directly on the ultimate decision.  Judge Walker included it for a reason, though.  By saying that Prop 8 merits strict scrutiny because it targets a class of people that should be considered a suspect classification, Judge Walker is setting the stage for arguments on appeal and emphasizing how ill-conceived and irrational Prop 8 really is.  It's like losing two baseball games 1-0 and 20-0.  You still lost both, but in the second game, you embarrassed yourself.

Under a rational basis review, Prop 8 could not even advance a single rational government interest.  Whatever marriage might have been "traditionally," tradition alone cannot be a rational basis.  Judge Walker cited precedent for that.  He also found that the "tradition" of restricting marriage to opposite sex couples does, in fact, harm the state's interest in equality, stable households, property distribution and caregiving, to name just a few.  Nor is it rational to uphold Prop 8 because same-sex marriage would amount to sweeping social upheaval.  There was no evidence for that.  Massachusetts and Connecticut, after all, have not fallen into the Atlantic Ocean.  And, banning same-sex marriage does not nothing for the state's interest in encouraging sex within marriage.  If anything, by prohibiting certain couples from marrying, Prop 8 encourages extra-marital sex.  Nor can moral objection to same-sex relationships or same-sex conduct justify discrimination.  Pure animus is irrational and certainly not a legitimate state interest.

UPDATE:  What Now? And What Does It All Mean?


You might be wondering how Judge Walker's well-reasoned and thorough opinion might impact our world tomorrow.  In a word, it won't.  While the Order allowed California to start issuing marriage licenses to same-sex couples, the relief has been stayed pending appeal to the Ninth Circuit.

The parties will prepare their briefs in the coming months and deliver oral argument before a 3-judge panel on the Circuit.  Due to the high profile nature of the case, any decision by the panel will likely result in "en banc consdieration" by the entire Ninth Circuit.  That means that after one round of appellate hearings before three judges, another round in front of every Ninth Circuit judge will likely take place.  Then the case may be fast-tracked to the Supreme Court.

That is, unless the issue becomes moot.  How?  Marriage equality supporters are already gearing up for a push to overturn Prop 8 on the 2012 ballot.  If current polling is accurate in suggesting that a majority of Californians now support marriage equality, a pro-equality victory at the ballot box before the Supreme Court takes the case may obviate the need for a Supreme Court hearing.

Some Substantive Questions

This decision is momentous.  Do not forget that.  Never before as a federal court declared that the gay community warrants special protection and never before has a federal court declared so clearly that marriage discrimination is so irrational.

But there is a legal mine field awaiting marriage equality lawyers going forward.  For one thing, the Supreme Court, as currently constituted, is a conservative institution and among the most conservative Supreme Courts in our history.  It is more than a little unnerving to realize that our rights might ultimately rest in the hands of Bush appointees.

More specifically, strict scrutiny is a tough sell.  Supreme Courts since the 1970s have moved away from strict scrutiny jurisprudence with some zeal even to the point of contorting themselves into pretzels to create a new type of standard of review — so-called "intermediate scrutiny" — for gender classifications simply because the Court could not muster a majority for expanding the list of Warren Court era "suspect classifications."  Whether the Court will be willing to do today what it would not do decades ago is an open question.

Therein lies the genius of Judge Walker's opinion.  He touches on strict scrutiny but doesn't need it.  His strategy may prove to be our saving grace in the end.


  1. JT says

    Its a huge victory, but lets not get too excited til we see where this leads, since we know the opponents of equality are gonna ramp up their hate 10 fold. I can feel the tremors in the Earth already…not just another Cali quake I fear, prolly Maggie G loading up her chins for war. But I am a California resident, and after the painful slap in the face of having equality for a few months, then having it taken away…this feels kinda nice.

  2. Boxerdad says

    I love that the judge used the phrase “the notion that opposite-sex couples are superior to same-sex couples.” For some reason that wording seems more powerful than our oft used complaint of being treated as inferior or as second-class citizens.

  3. crispy says

    sadly, no one’s getting married today: “City officials announced at 2:30 p.m. that because of the stay, no marriage licenses would be issued to same-sex couples. Judicpa and Ydil are still planning to hold a private marriage ceremony.”

  4. David says

    Courts will do more for gay rights than Obama will do with executive orders and Dems will do with false promises. Just sayin.

  5. Smartypants says

    Ruling establishes strict scrutiny standard for review. On pp. 116-117, Walker states that gays are a ‘suspect class’ so that any ruling must pass the high standard of strict scrutiny. Then he brutally goes on to thoroughly dismiss the Pro-Prop 8 arguments under the lowest standard of rational basis.

    It’s a very strong decision.

  6. Tom Collins says

    Been watching this all morning here in Canada. Congratulations to you all, and this brave judge. The language seems very well crafted and any appealet court will be had pressed to find cracks. Cheers to you all.

  7. I'm Layla Miller I Know Stuff says

    The letter of the law versus the spirit of the law is an idiomatic antithesis. When one obeys the letter of the law but not the spirit, one is obeying the literal interpretation of the words (the “letter”) of the law, but not the intent of those who wrote the law. Conversely, when one obeys the spirit of the law but not the letter, one is doing what the authors of the law intended, though not adhering to the literal wording.

    “Law” originally referred to legislative statute, but in the idiom may refer to any kind of rule. Intentionally following the letter of the law but not the spirit may be accomplished through exploiting technicalities, loopholes, and ambiguous language. Following the letter of the law but not the spirit is also a tactic used by oppressive governments.


  8. says

    Thanks for the analysis & summary. I try to read these big legal decisions and three out of four times fail partway through.

  9. deegeezee says

    really enjoyed your analysis — it’s a well-distilled and entertaining look at the opinion.


  10. Cory says

    Ari, thank you for this. Truly, it’s an unbelievably intelligent breakdown of the entire ruling and legalities that followed.

  11. says

    Agree. Thanks for the dazzling deconstruct.

    But let us all remember that, in the end, as with countless cases before, gay and nongay, the Supremes are not consistently controlled by objective legal facts. They, too, have repeatedly effectively said, “Yeah, but, ya know God is in the mix.” Or at least, the dominance of the status quo such as slave owners and “the best interests of the military” re banning gays [tho, technically, they’ve never ruled on the latter directly].

    Only time will tell. In the interim, it IS a great day!

  12. Homo Sapiens says

    Two small quibbles:

    Walker did NOT stay the judgment pending appeal. He stayed the entry of judgment pending argument and Walker’s decision on whether to enter a formal stay pending appeal. He may yet decide not to convert the stay into a permanent stay pending appeal, in which case, the marriages would commence.

    Also — rehearing en banc in the Ninth Circuit doesn’t bring the case before all the 9th Cir. judges, as you suggested. Because the circuit is so large, an “en banc” 9th circuit is really just a mega-panel and does not involve every last circuit judge.

    Other than that, thank you for your insights and comments!

  13. says

    It is indeed a great day, and I’ve spent the better part of it reading the ruling. (There’s a PDF at the NYT) With 80 separae “Findings of Fact” it’s built like the proverbial Brick Shit House. This isn’t the work of an “Activist Judge” but that of someone who REALLY knows the law and how it works.

    We’ve got to start to get used to winning, folks.

  14. says

    Well done, Ari. I’ve been trying to explain some of this to non-attorney friends, but I just gave up and pointed them to your excellent analysis.

  15. Randy says

    Having read the entire opinion myself, I agree with what’s been said.

    I cannot envision a better result for us at this stage (except that stay should not have been granted…)

    I hope those who opposed the AFER team last year take a good look at what real leadership looks like. These are results.

  16. anon says

    That’s a good summary, particularly for an attorney with 5 years experience or so in litigation. But, and however, the fly in the ointment is what Ari passed over briefly and dismissed out of hand, which is that the SC does in fact use a “tradition” test in its rulings, and can in fact make that a rational basis to uphold laws. This is a conservative view, but they’ll hold a majority for the next couple of years. They also have an “unintended consequences” test (at least the four most conservative members do) in that one may argue that without such a restriction or right to restrict, the state would be barred from blocking other marriages, such as siblings, inter-species, polygamists, etc. That is, you could apply Walker’s reasoning to other cases, considered even more extreme, and reach the same conclusion. This logic alone gets you 4 votes to uphold Prop 8 on appeal and tradition can get you 5 from Kennedy, depending on his mood. Also, the SC does not care about findings of fact in the most controversial cases, except when such facts support their conclusions.

  17. robertmalcolm says

    Ari. Thanks so much for bringing this into mere layman’s terms for those of us who are not legal scholars. For the first time in a long time we can (at least for now) rejoice in California … and the nation for a court seeing such injustice rectified.

  18. Yalie Greg says

    Fantastic, Ari, thank you! Stephen, I’ll wrestle you for him if he is single, even though he went to Harvard (twice!).

  19. says

    “Never before as a federal court declared that the gay community warrants special protection…”

    really? i don’t want special protection, i want equal protection.

  20. Ari says

    thanks for all the comments. @anon, youre absolutely right. You offer insight that I elected to leave out of this analysis, but hoped to return to when we had more distance from the decision. I will cite you!

  21. toddo says

    In addition to the momentousness of the decision (for now), I appreciate Mr Waldman’s thorough, concise and readable explanation of the legal points. Thanks so much!

  22. Randy says

    Be sure to check out the videos and PDF exhibits attached to the court’s decision. It’s just amazing, including video excerpts from depositions of Tam and others, and documents such as (for the first time inside the US) the infamous Senate document “Employment of Homosexuals and Other Sex Perverts in Government”.

  23. Quipper says

    Can we please borrow Judge Walker in Hawaii so he can overturn Gov Lingle’s decision to veto civil unions?

  24. Jedd says

    Read the Ruling, all of it. I’m almost glad that Prop 8 went through just so we can have this document written for everyone and history to see. It’s solid as a rock. I have no idea how else this can be overturned.

  25. Greg says

    I’m hopeful despite the Bush Supreme Court. Chief Justice Roberts was very influential in Romer v. Evans (the court that struck down Colorado’s discriminatory, homophobic constitutional amendment) and I can see (hope) that he will apply the same, powerful reasoning to this appeal.

  26. wal5404 says

    I’m excited about the ruling and think this is a good break-down; however, in the one of last paragraphs he notes: “It is more than a little unnerving to realize that our rights might ultimately rest in the hands of Bush appointees.”

    It should be noted that Ted Olson, Plaintiffs’ attorney, who won this case was a “Bush appointee” who, ironically, would have been nominated to the Supreme Court had the left not balked at the rumor of his nomination.

  27. Ari says

    That’s true, WAL5404. I shouldn’t have been so overtly political in my statement. Still, it is definitely a concern of the gay community that, at a minimum, we are dealing with an increasingly conservative judiciary. But, you’re point is well taken.

  28. wal5404 says

    Thanks, ARI. The merits of this case should not be polluted by overt politics.

    We can win the legal debate, but if the debate shifts to one of strictly a political nature, we lose credibility and are likely to lose the debate as presidential candidates of BOTH parties have spoken against marriage equality.

    We must not devalue our argument by engaging in the politics of those we oppose in this one.