Kathryn (kathrynt) wrote,
Kathryn
kathrynt

Let's all move to California and get gay married!

Or, Perry v. Schwarzenegger: What now?

Please note, I am absolutely the farthest thing possible from a legal scholar. The opinions and assertions stated below are the amalgamated results of reading several legal analyses on the Web and chatting with people who ARE legal scholars, or who anyway are closer to it than I am. These include a public policy attorney who clerks for a federal judge, whose opinion I am taking to be, at the least, informed. But if anyone who actually knows anything wants to correct me on any of this, PLEASE speak up.

The short answer is, a lot of awesome things happen now. Unless Judge Walker decides to extend his stay pending notification of appeal to be a stay pending appeal, people can start getting marriage licenses tomorrow. It's possible -- procedurally -- that the defendants will choose not to appeal to the 9th Circuit, or that the 9th Circuit will choose not to hear the appeal (edit: this is not true, they would choose to "affirm without opinion" instead) , in which case California will have marriage equality but this case will have no further immediate national ramifications. But it is damn unlikely, frankly. I and a large number of actual legal minds will be very surprised if the case is not heard in the 9th on appeal.

And herein lies the genius of Judge Walker's ruling -- and make no mistake, it is genius. It is lovingly and carefully written, and you should download the PDF and read it if you get a chance. But the vast majority of the culturally contentious topics -- questions like the nature of sexual orientation, and about the putative harm that marriage equality does to opposite-sex marriages, and the effect on children of being raised in same-gender households -- are rendered not as legal opinions, but as findings of fact. The findings of fact compromise fifty-five pages of the 138-page decision, in fact. This is both relevant and clever because unlike findings of law, findings of fact are not subject to review on appeal. Unless they are "clearly erroneous," a standard which is extremely hard to meet and which requires that informed opinion be unified against the judge, the findings of fact are taken as given by the appellate court.

This means that the findings of fact, which include:

  • that marriage in the United States has always been a civil matter
  • that marriage in the United States has never required cofertility
  • that removing gender roles and race restrictions from marriage has not affected the vitality of the institution
  • that domestic partnerships, civil unions, and other all-but arrangements are discriminatory and create a partnership underclass
  • that sexual orientation is inborn and fundamental to a person's identity
  • that there is no compelling state interest in reducing the number of gays and lesbians
  • that same-sex couples are just like opposite-sex couples in every material way
  • that permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages
  • that children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted


will not be arguable in the appellate -- or Supreme -- court. This doesn't mean that the judges can't take their own opinions on these matters into account when rendering a legal verdict, but it does mean they aren't supposed to. This substantially defangs the "But gays are icky!" argument. Now, it would apparently be possible to show that the findings of fact were not legitimately drawn from courtroom testimony but rather from judicial experience and bias, and that might be cause for review. But that would be hard to do in this case, because the pro-Proposition 8 side barely mounted a defense. Seriously, they called two witnesses, neither of whom were able to present any coherent or credible evidence of their position. I mean to the point that when one witness was asked for any external evidence to support the claim that the State's interest in marriage is procreation, he said "Your honor, my answer is: I don't know." Another witness, when asked to support his contention that gay people are more likely to molest children than straight people, said "Well, it's on the Internet." So. . . yeah.

What can be argued in the higher courts is whether Judge Walker's legal opinions were appropriately drawn from the findings of fact. Here, again, the judge was very careful and thorough in his opinion. He only had to find Proposition 8 unConstitutional on one ground, but he did so on two: equal protection and due process, both of which are massive pillars of black-letter law. Not only that, but he found that Prop 8 violates each of these standards in numerous ways, ALL of which would have to be overturned in order to overturn this ruling. It's just not that likely to happen on the 9th circuit level; the 9th circuit is the most liberal and pro-civil-rights circuit of the federal court. It is potentially likely that they could choose to affirm the ruling, but only for California, but that would be very much out of character for the Court. So the likely outcome is that the 9th circuit affirms the decision.

At that point, every state in the Ninth Circuit -- which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and my own home state of Washington -- has a pretty much slam-dunk straightforward one-case path to full marriage equality. It would require individual cases in each state, I think, but they'd be pretty linear and easy. The one exception to that would be if the 9th circuit stays its decision pending SCOTUS appeal; I honestly don't know the likelihood of that.

The next step after that is that the case goes to the Supreme Court. Here, too, things are really interesting. First of all, the anti-8 legal team -- the lawyers representing the plaintiffs -- are Ted Olson and David Boies. These are, respectively, the lawyer representing George Bush in Bush v. Gore and the lawyer representing Al Gore in that same case. They are incredibly fine legal minds on their own merits, and together, they're incredible. Plus, Ted Olson was Solicitor General under Bush; it was his job to argue the Government's position in all SCOTUS cases where it was called for. He knows these judges. They know him. Whether their association is strictly professional or whether they've taken lunches and played golf, I don't know, but he has argued dozens of cases in front of this court, and he is very comfortable there. In addition, Judge Walker wrote his opinion very specifically to appeal to Judge Kennedy, the "swing vote" on civil rights cases; in the ruling, Judge Walker quotes Judge Kennedy no fewer than seven times. He ALSO quotes Scalia, in his dissenting opinion to Lawrence v. Texas, when he basically said "If you can't discriminate on the basis of sexual activity, there's no legal reason to discriminate in marriage." Judge Walker does NOT say "Yeah, about that," but he might as well have. It's not a slam-dunk at the SCOTUS level, but it's the closest we could possibly get with the current court makeup. AND, the earliest we could possibly see a SCOTUS hearing is in 2012, by which time (fingers crossed!) there will have been thousands of marriages in California and possibly in many of the other states of the Ninth Circuit, which will make the argument that marriage equality will harm the vitality of the insitution even weaker and more tattered than it already is.

And, of course, not even the proponents of Prop 8 believe that nonsense. No, really, they don't. Want proof? Look at the number of people calling for Judge Walker to have recused himself from the case because he is gay and therefore has a compelling personal interest. By their OWN ADMISSION, straight people have NO COMPELLING INTEREST in whether gay people get married or not. I've seen a couple of bigots led down that particular primrose path online so far, and the resulting eyeblinking and stuttering is pretty funny.

sorry this is so long, but I'm really excited.
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  • 22 comments

  • War Requiem

    I could write a paper on this piece. Every measure is packed with meaning and care. I almost feel bad for the audience, that they will only get to…

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