Prop 8 on Trial:
A Preview of Judge Walker’s decision in Perry v. Schwarzenegger


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.

It’s Prop 8 Decision Day and California is exporting as much angst and anticipation as a Jim Jarmusch film. Whichever way the winds blow this afternoon, we can be certain of three things: Death, taxes and the losing side will appeal.

WalkerBut make no mistake; August 4, 2010 will be a momentous day in the history of LGBT law. Today’s decision will mark the first time a federal district court has ruled explicitly on the constitutionality of a voter-approved initiative that withdrew marriage equality rights from millions of Californians. It will tell the story of why millions of dollars were spent to prevent committed gay couples from marrying and whether that story merits legal legitimacy. It will also set the stage for the upcoming legal battles at the Ninth Circuit Court of Appeals and the United States Supreme Court.

Analysis and coverage of Judge Walker’s decision will be available here later, but here is a preview.

Judge Walker has a number of options (see decision tree diagram, below). First, he has to decide how to analyze Prop 8. Does it merit what constitutional lawyers call a “rational basis” test, which would allow a law to survive constitutional inquiry with merely a rational connection to some legitimate government motive, or does it require “strict scrutiny”, which will require the law’s supporters to jump a higher threshold to justify constitutionality – namely, that the legalized discrimination at issue is actually necessary for the success of a substantially important public policy? Think of the difference between a Democrat winning in Massachusetts versus Wyoming, or Homer Simpson eating a donut versus jumping Springfield Gorge. One’s easy; one’s hard.

What distinguishes “rational basis” from “strict scrutiny” is that a law that either addresses a fundamental right or singles out a particularly oppressed minority generally gets strict scrutiny.

So, let’s say Judge Walker finds that same-sex marriage involves a fundamental civil right. Ted Olson and David Boies argued at trial that the fundamental right recognized in the case of Loving v. Virginia, which declared interracial marriage bans unconstitutional, should be extended to same-sex couples. The Prop 8 defense team responded that the fundamental right exists only in marriage’s so-called “traditional” form – namely, between one man and one woman. At trial, this devolved into a debate over the nature of civil marriage. Do we marry for procreation? If so, what about elderly married couples or childless couples or subsequent marriages? On the other hand, if marriage were a matter of commitment between two individuals, then the logical conclusion would be to recognize marriage as a fundamental civil right regardless of the sexual orientation of the participants.

This option is not as easy as it sounds. Judge Walker would be stepping out into nearly uncharted legal territory, as only one court has previously extended Loving’s analysis to gay couples.

If the risk unnerves Judge Walker, he can reach “strict scrutiny” by placing sexual orientation alongside race and religion as a “suspect classification” regardless of whether marriage is a fundamental right. As a law discriminating against a so-called “suspect class”, Prop 8 would have to do more than be rational in someone’s mind. Almost fifty years ago, federal courts justified judicial intervention against popular will in the Jim Crow South because African Americans had no chance to access the political process to overturn discriminatory laws and because, as a minority, they had been historically oppressed due to an immutable characteristic. The Olson/Boies team argued that sexual orientation belongs in this category.

Judge Walker may see risks here, as well. Over the last twenty years, an increasingly conservative Supreme Court has resisted expanding the small group of suspect classifications. That said, Justice Ruth Bader Ginsburg recently noted that the shibboleth in the Court’s jurisprudence on gay rights has been the immutable characteristic of being gay. She wrote in Christian Legal Society v. Martinez, a case about whether a public university could deny funding to a Christian group because it discriminated against gay people, that “[o]ur decisions have declined to distinguish between status and conduct in this context.” If that rings true, homosexuality is as immutable as race and, therefore, may justify a suspect classification.

Still, Olson and Boies did not pin all their hopes on Judge Walker’s commitment to strict scrutiny. A clear path to victory exists through a “rational basis” analysis, despite its significantly easier burden on Prop 8 supporters.

Ted Olson spent a full day at trial teasing out the justifications for Prop 8 supporters’ opposition to marriage equality and David Boies spent almost as much time cross-examining the few so-called expert witnesses from the opposition. The result, as Olson described in his closing argument, is that after breaking down and contradicting themselves, after failing to provide any evidence that same-sex marriage injures heterosexual marriage, and after admitting that children raised by same-sex parents thrive at home, Prop 8 supporters admitted that what animated their cause was an animus toward gay people, gay sex or homosexuality in general.

And that’s not kosher. In Romer v. Evans, the Supreme Court overturned a Colorado-voter-approved amendment to the state constitution that would have barred any locality from taking any action that would recognize gay people as a protected class. The amendment, for example, would have banned workplace anti-discrimination ordinances from protecting gay employees. The Court found that the legislature’s justification for the measure was pure animus toward gay people, which can never be considered rational or legitimate. Justice Kennedy wrote that the law’s “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.”

There are various paths to victory, but each is dotted with landmines, not the least of which is what happens A.V. (After Vaughn). It is unlikely that same-sex couples in California will be able to don their tuxedoes and marry on the sun-kissed coasts of SoCal this afternoon. Capable counsel on both sides are probably prepared with their appellate strategies, as well as motions for a stay pending that appeal. As a former appellate attorney, a stay of any lower court order adverse to my client would always be Priority 1 on my to-do list. Therefore, any order nullifying Prop 8 would be held in limbo pending a decision of the next highest court – the Ninth Circuit Court of Appeals.

Extending narrowly crafted precedent is tricky business, even trickier when dealing with something as hot button as gay rights. And, while real change takes time and often comes in the two-steps-forward-one-step-back variety, it also takes real leadership. Ted Olson, David Boies and their team deserve credit for the work they have done. This afternoon, let us hope we can add Judge Vaughn Walker to that Hall of Fame list.