Hoo boy. Here’s the big news of the day: the hate-filled amendment to the California Constitution commonly known as “Proposition 8” has been overturned by Judge Vaughn Walker, the Chief Judge of the United States District Court for the Northern District of California. Judge Walker, a George H. W. Bush appointee, found in his ruling on Perry v. Schwarzenegger, that Proposition 8 violates both the Due Process and the Equal Protection clause of the 14th Amendment (learn more about the 14th Amendment here). Walker was expected to rule against Proposition 8, as California judges are not known for their approval of anti-gay legislation. However, the degree of his ruling is important, as I will shortly explore. Unfortunately, I am very concerned about the timing of this ruling, for a reason I will also explore.
Judge Walker first dealt with the Due Process clause in his decision. He is quick to establish that the purpose of the clause is to protect people from having their rights removed without the due process of law – that is to say, the tyranny of the majority does not apply in the United States. He reminds us of the plethora of decisions that have stated that marriage is a fundamental right, and he extends that decision to include the statement “regardless of gender.” Walker calls on Lawrence v. Texas, Griswold v. Connecticut, and Loving v. Virginia in his Due Process argument, showing that the government has never before demanded procreation as a requirement for marriage, and also that social taboos should be ignored when applying the Constitution to the right to marry. Here’s another line I like: “Gender no longer forms an essential part of marriage; marriage under law is a union of equals.” (Judge Vaughn Walker, Perry v. Schwarzenegger, P. 113)
Walker next discusses how a domestic partnership (aka civil unions) do not pass muster for the Due Process clause, suggesting that they deliberately denote same-sex relationships as lesser than varied-gender relationships, and as a result, again, are evidence that the state has removed the fundamental right to marriage from a group without due process or a reason that benefits the wellness of the state; indeed, he finds that “domestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples.” (Perry, p. 116) Finally, he combines the two: “The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest.” (Perry, p. 117).
In short: California’s Proposition 8 violates the Due Process clause of the 14th Amendment of the United States Constitution, because it removes a fundamental right from a class of people for no reason that benefits the government or the state.
The second leg of Walker’s finding is that Proposition 8 violates the Equal Protection clause of the same amendment (see why I keep telling you it’s the most important?). First, he establishes that homosexuals are a minority group that require protection under this clause; he agrees with the plaintiffs that “Gays and lesbians have historically been targeted for discrimination because of their sexual orientation; that discrimination continues to the present.” (Perry, p. 119-120) Walker also finds that sexual orientation discrimination is “equivalent to a claim of discrimination based on sex.” (Perry, p. 121)
Walker doesn’t really need to say much more here – he says that the nature of the Proposition is such that the standard of review for Equal Protection cases doesn’t even need to be applied, and then reminds us even more as to why gay people are a protected minority. In short: the Equal Protection clause applies to gay people who want to marry because the only reason for creating laws banning LGBT people from marrying are designed to discriminate to the same level as sex-based discrimination, a class of discrimination long-since recognized by the courts and laws of the United States.
The judge then tears down all six of the supporting reasons for Prop 8, using his previous reasoning (read it yourself, I’m not summarizing those arguments!), and then ends with this gem:
In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate. (Perry, p. 132)
Judge Walker ruled that Proposition 8 is unconstitutional according to the United States Constitution and issued an injunction against the Proposition; he then immediately issued a stay on his ruling pending appeal. The stay is important because without it, as a gay man, Judge Walker could be accused of bias in his ruling. As I recall, he was not asked by the defense counsel to recuse himself; had he not issued a stay pending appeal (standard procedure), he could be accused on appeal of providing special exception for a class of people he could then be shown to be a member of. In other words – the case could easily be stricken down by either the Circuit Court or the Supreme Court for bad process. Due process works both ways, like the gate that summoned Gozer on top of 22 Central Park West.
I imagine the United States Court of Appeals for the Ninth Circuit will uphold Walker’s ruling in Perry v. Schwarzenegger, but overall, it doesn’t matter. Whoever loses will appeal to the Supreme Court, and they’ll take the case. If there’s no change in the court, it will be Roberts, Thomas, Alito, and Scalia voting in favour of Proposition 8; Kagen, Ginsburg, Sotomayor, and Breyer will vote against it. Anthony Kennedy will be the swing vote.
Kennedy has a strong history of voting in favour of the expansion of rights towards gay people. He wrote the majority opinion in Romer v. Evans (ruling that gay people have the right to file discrimination claims) and Lawrence v. Texas (striking down anti-sodomy laws), and voted in the majority in Christian Legal Society v. Martinez (publicly funded colleges can withhold recognition from campus groups that deny free access based on religion/sexual orientation). However, this is a pretty damn big question, and it’s unknown how he’ll fall. However, I believe Walker wrote his opinion specifically with Kennedy in mind.
Many laws striking down gay marriage bans have been based on the Due Process clause alone; Walker has added Equal Protection as well, and argued strongly on the discrimination point, which Kennedy has been known to support. In order for the Supreme Court to disagree with Walker, they must find that both of his arguments were wrong; much more difficult than finding just one of them wrong. His arguments are extremely eloquent and well-written, and I think that Kennedy may just end up voting to agree with Walker’s ruling. Unfortunately, only one person knows. The right of gay people to marry in the United States is now, for all intents and purposes, in the hands of a man who voted with William Rehnquist 92% of the time.
That’s why I’m concerned about the timing. Swing one member of the conservative bloc to the left through a vacancy, and this would almost be a sure thing, and possibly a 6-3 ruling instead of a weak 5-4 ruling; who’s to say Obama will get a second term and appoint more justices that will protect an anti-Proposition 8 ruling in the future? It might be early, and that might doom gay marriage for a long time.
There is one other possibility; that the Supreme Court rules that Walker was right, but that it is not binding precedent (consider McDonald v. Chicago, in which the ruling said it only applied to a certain class of lawsuit). That would invalidate Proposition 8, but not any similar State Constitutional clauses throughout the several states; those states would need similar lawsuits where Perry could not be called upon. This would have the effect of isolating the ruling; it could never be challenged as wrong (as those it affects, Californians, would have no reason to further appeal, as they would if Proposition 8 was ruled unconstitutional), but it could never be used to support the rights of gay people in, say, Alabama.
It feels too early, and I’m just worried it might go wrong.