The decision by United States District Court Judge Vaughn Walker striking down Proposition 8 in California is a fascinating read. It is also an opinion that is likely to trigger not only a furious appeal but a renewed demand for a constitutional amendment barring same sex marriage.

The critical part of the Walker opinion in Perry v. Schwarzenegger may be his findings of fact. Normally, such findings are given deference by the appellate court — as opposed to the de novo review afforded legal questions. It will be interesting to see how these findings are treated on appeal. The state has announced that it will be filing an appeal.

Walker went out of his way to iron plate his opinion with citations directly to the record on development of children and testimony on gay marriages. Walker knew that these are not subjects that should be the subject for judicial notice and that they must be given deference. However, some judges and justices may not want to be bound by such findings and may view this as more of a legal question. Some findings appear unassailable like this one: “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.” It should also be a matter of judicial notice to find: “Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.” It gets a bit more controversial with the following:

[T]the evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive, effect on the institution of marriage and that same-sex couples’ marriages would benefit the state. Id. Moreover, the evidence shows that the rights of those opposed to homosexuality or same-sex couples will remain unaffected if the state ceases to enforce Proposition 8.

That leads to the following conclusion:

Because the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage, California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples. Proposition 8 is thus not rationally related to proponents’ purported interests in proceeding with caution when implementing social change.

The rational basis test is usually viewed as rather easy to satisfy — making these findings even more important for the plaintiffs. In one of the most important passages, Walker states:

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

. . . Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

While this decision is likely to trigger calls for the constitutional amendment, it is important to note that it does not bind other states or circuits. Moreover, the assumption that the Court would clearly accept cert could prove misplaced. Historically, the Court has preferred to let the circuits develop their own — and often conflicting — views on matters with such great political and social interest. While I agree that this case would appear a very strong candidate for cert, the Court has avoided the same sex marriage issues for years. Indeed, in crafting the Lawrence v. Texas decision, the Court seemed to go to great lengths to avoid a holding that could be used to support such a claim.

There is a misconception about the Ninth Circuit, which will eventually hear this case. While it is viewed as the most liberal, it has a fair number of conservatives on the Court. Moreover, many judges are likely to view a failure under the rational basis test for a state to be questionable. You never know what panel you will be given, including the possibility of a panel with district court judges sitting by designation. Any ruling by the panel can then be appealed by the losing side to the entire court through an en banc petition — before proceeding to the Supreme Court.

Any way it goes, this case could be before the Supreme Court and a new Justice Kagan in a matter of a few years. If critics are right that Kagan lacks a judicial philosophy, she will need to get one pretty quick with cases like this one heading to the Court. Each involve sweeping issues ranging from equal protection to federalism to federal jurisdiction.

Here is the opinion: FF_CL_Final