Berman & Asbel, LLP

California Prop 8 decision by Judge Walker - some thoughts and analysis

Judge Vaughn Walker's decision in Perry v. Schwarzenegger will, as everyone expected, be appealed - first to the U.S. Court of Appeals for the 9th Circuit and then likely to the U.S. Supreme Court.  I have read through Judge Walker's 136 page opinion and the first thing that struck me was that this opinion was particularly crafted knowing that an appeal was certain.  When decisions by trial judges are appealed, the appeals court has the power to substitute its own judgment on conclusions of law.  However, appeals court judges almost always defer to trial judges on findings of fact because it is the trial judges who are actually present to see and hear the evidence and to make determinations of credibility and weight of evidence.   Put simply, while appeals courts can reach different legal conclusions from facts, they will generally defer to the trial judge on questions of what are the facts and which witnesses and evidence are most credible.

If you read Judge Walker's opinion, you will see that he went into tremendous detail in assessing the credibility and weight to be given to the testimony of every witness.  For example, there is a lengthy discussion about how most of the witnesses the proponents of Prop 8 had originally listed did not even testify and that the plaintiffs challenging Prop 8 actually put into evidence depositions given by witnesses of the proponents of Prop 8 because that testimony supported the plaintiff's position that Prop 8 is unconstitutional.  There is  significant discussion about the testimony of the several couples on why they wished to marry.  There is extensive discussion and comparison of the testimony of the plaintiffs' experts such as historian Nancy Cott and the defendants' expert, David Blankenhorn - what were their credentials and why their testimony did or did not support the positions of the respective parties.  Cott, for example, testified that historically, civil law rather than religious custom, has always been supreme in regulating and defining marriage in the United States even though under the 1st Amendment guarantee of free exercise of religion, religious clerics are permitted under state laws to officiate marriages and that, historically the ability to consent to marriage is a basic civil right.

Blankenhorn, the expert for the Prop 8 proponents, conceded that the right to marry would indeed benefit same-sex couples and their children, would reduce discrimination against gays and lesbians and would be "a victory for the worthy ideas of tolerance and inclusion."  Yet, despite these benefits, Blankenhorn opposes recognition of same-sex marriage because such benefits would not be valuable enough because, in his view, same-sex marriage could weaken marriage as an institution.   Judge Walker was very specific in rejecting this conclusion by Blankenhorn and in stating his view that Blankenhorn's testimony was not reliable.

Judge Walker wrote an entire section devoted to going through each witness one by one to assess their credibility.  With regard to Blankenhorn, the primary expert witness for the Prop 8 proponents, Judge Walker noted that none of the books Blankenhorn had written about marriage and family structure had been subjected to a peer review process; that Blankenhorn has no degree in psychology, sociology or anthropology despite, as Judge Walker noted, the importance of those fields to the subjects of marriage, parenthood and family structure.  After analyzing Blankenhorn's testimony, credentials and methodology, Judge Walker rejected his opinions on marriage.

Blankenhorn's second major assertion was that children raised by their married biological parents do better than children raised in other environments.  However, as Judge Walker noted, Blankenhorn was comparing children raised by married biological parents to children raised by single parents, unmarried mothers, step families and unmarried cohabiting parents.  Judge Walker found flaw in Blankenhorn's opinion because he did not provide any evidence regarding how children do who are raised by married adoptive parents.  Judge Walker found Blankenhorn's reliance on biological relationship to be unsupported by evidence and therefore rejected his conclusions.

Blankenhorn's third major conclusion was that recognition of same-sex marriage will lead to "deinstitutionalization" of marriage citing the prevalence of children being born out of wedlock, rising divorce rates and rising non-marital cohabitation.  However, as Judge Walker wrote, no evidence was presented as to how recognizing same-sex marriage would somehow prevent opposite-sex couples from marrying and staying married.

In sum, Judge Walker's opinion was carefully written to show that his conclusions were strongly based on his findings of fact and credibility which an appeal court will almost never challenge.

Another key element of Judge Walker's opinion was the level of judicial scrutiny which he applied to Prop 8.  Most laws are constitutional if they only meet a test of having some rational connection to a legitimate government purpose.  However, when a fundamental right or liberty is involved, courts will apply a stronger "compelling interest" test.  In many cases, the question of constitutionality will turn on whether the right in question is a "fundamental right" because that sets up which test will apply.  Laws that are only subject to a rational basis test almost always are found to be constitutional.

Judge Walker, however, did something interesting.  He set aside the question of which test would apply and found that even applying the easiest-to-pass rational basis test, Prop 8 does not promote any legitimate government objective which justifies denying same-sex couples the right to marry.  The Prop 8 proponents tried to advance the idea that banning same-sex marriage would promote a state interest in promoting marriage by opposite-sex couples so that they will have sexual intercourse and produce children within marriage.  Judge Walker, however, found that even if that is a legitimate government objective, denying same-sex couples the right to marry will not do anything to promote that objective.   Evidence was presented in the trial that gays and lesbians do not choose their sexual orientation and denying them the right to marry someone of the same sex is not going to cause them to marry someone of the opposite sex.  In the end, Judge Walker found that Prop 8 only promotes certain private religious viewpoints but advancing private religious viewpoints was not a legitimate state interest that could justify denying some citizens the right to choose whom they wish to marry under the civil law.

Judge Walker thus seems to have done his very best to write an opinion that exhaustively shows how it is based on findings of fact and credibility and that Prop 8 does not advance any legitimate government interest, to make it as difficult as possible for an appeals court to overturn his decision.  However, he seems to have made use of another strategy to prepare his decision for review.  Professor Adam Winkler of the UCLA School of Law wrote in an article in the Huffington Post about how the U.S. Supreme Court will likely line up on this issue.  Chief Justice Roberts and Justices Scalia, Thomas and Alito will most likely side with the proponents of Prop 8 to uphold the ban on same-sex marriage.  Justices Breyer, Bader-Ginsberg, Sotomayor and newly sworn-in Justice Kagan will most likely side with the plaintiffs challenging the constitutionality of Prop 8.  That leaves Justice Kennedy as the swing vote.  As Professor Winkler notes in his article, there have been two major decisions by the Supreme Court in the last 15 years concerning gay rights with both decisions coming out strongly in favor of gay rights.  Both of those opinions were written by Justice Kennedy.  In Lawrence v. Texas, Justice Kennedy wrote:

" These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."
"Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do."

 Dahlia Lithwick, in an article in Slate, notes that Judge Walker cites Justice Kennedy's opinion in Lawrence v. Texas eight times and cites Justice Kennedy's opinion in Romer v. Evans, a decision which struck down an anti-gay Colorado ballot initiative seven times.  Thus Judge Walker shows he is very mindful that the ultimate decision of this matter may rest with Justice Kennedy and Judge Walker is preparing the way to show that his decision is within the scope of Justice Kennedy's prior opinions.

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