Proposition 8 Struck Down Under Rational Basis Test

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

216 thoughts on “Proposition 8 Struck Down Under Rational Basis Test”

  1. AY
    “He is not to bright maybe you can enlighten him.”

    I am quite disturbed at this prejudicial and racist statement. As an alumnus of the top university in the world, I am disturbed at your disdain for ordinary people. While there, I never found disrespect for the practical people who defended the country or provided us with electricity, water, sewer, etc. The only people I know who shared this disdain went to second-tier universities and were stuck in jobs at fourth-tier universities.

  2. Trader,

    I’m failing to see how this is an improvement. Why is arbitration better than court? For that matter why would people suddenly be more inclined to go to arbitration than court? It’s already an option. So are prenups.

    Your system is basically forcing everyone to spend more money, time, and energy, without providing any significant change in function.

    It’s like what you really want to say is “marriage shouldn’t be a legal contract,” but you can’t make yourself. If you want to go that route, fine. But then you have to stop playing your “historic role of marriage” card, because THAT is what the historic role of marriage has always come down to. A contract where two people agree to be considered one entity for various legal purposes.

  3. I don’t have time to go into this in detail, but the state’s interest in marriage has always been about property. Keep in mind that not so very long ago, women essentially ceased to have legal existence following their marriage. They could not independently contract, had no rights in what we now term “marital property” and were not entitled to custody of children should the marriage terminate for any reason.

  4. lottakatz,

    Thanks for posting the link. That is where I saw, but had forgotten.

  5. I am sure some would, although this is something that should go to arbitration. A real test would be what percentages of prenuptial contracts are litigated.

  6. Trader,

    Would divorces not happen, or would most divorces suddenly be amicable? I mean, what exactly do you think happens when two parties have a disputing involving a contract?

    I’ll give you a hint: they go to a place with a judge, and usually lawyers are involved.

  7. Marriage is all about property rights. Dylan Ratigan had an interesting interview last night about the need for marriage arising as a consequence of agriculture due to agriculture investing people with possessions that needed to be passed down generationally. Here’s the link. It’s a bad interview IMO because it’s cast in a superficial attention-getting question (beer v. sex). Maybe that’s the only way the MSM thinks it can keep the viewers attention when it comes to behavioral science on even such a timely and important subject. There’s a commercial at the beginning and about 2 minutes of fluff/set-up for the actual interview.

  8. AY,

    You sound pretty racist to me. I have seen him of on TV and he seems to be a decent guy. I don’t know why you are going after him.

  9. Gyges wrote,

    “How does that benefit society, or really do anything but create more work for lawyers?”

    Yes, it would end Liars Club, a.k.a. divorce court and have divorce lawyers doing something useful. Everyone should have a prenuptial agreement. Have you ever heard the story of how Obama got the nomination for the U.S. Senate?

  10. Mike A.,

    I think I had heard yesterday that the WAPO had some debate on this but, I considered the source. First Rate News You know.

    Now we are here with TraderB.,

    How does it feel to be wrong yet again. Sherrod has not filed suit that I am aware of yet. And you are back. You then make your appearance on a Topic you revile in. Yes, Revile as in repulsively abusive.

    Go suck mud bugs then then spit. I rarely point out peoples deficiencies, however in your case. It is a pleasure in which I will revile as well…..

    You are singled minded, Rove is your Hero and in that breath you are racist, self-centered and egotistical. At least Atwater got a conscience before he died. Is that possible here, with you?

  11. AY,

    I was aware of that, yesterday. There has already been a been a lot of discussion about it on WaPo. One person said that it was pretty certain that they will not have standing. However, a law professor was quoted on another site to say that they might get standing. I think they this or remanding for a new trial are the two options for the Ninth. I do not think they want to rule on such a poorly reasoned decision.

    I do not think it makes too much difference if they cannot appeal. Gay marriage will almost certainly pass in the next referendum. If they cannot appeal, it will apply only to CA.

    I think Boies and Olson actually want them to be able to appeal. They will probably never have such poor opposition. If they win, it applies to the whole Ninth. If they lose, it would delay gay marriage until the next referendum.

  12. AY, you’ve raised a very interesting point regarding standing. The proponents of Prop 8 at the trial would normally be restricted to submitting written friend of the court briefs. Since the State of California elected not to defend the law, the court permitted evidence to be presented by proponents who arguably did not have standing. Should an appeal be filed, one would expect a motion to dismiss on that basis.

  13. TraderB,

    Suck on this for a moment or two then spit.

    Judge doubts gay marriage ban’s backers can appeal

    SAN FRANCISCO — The federal judge who overturned California’s same-sex marriage ban has more bad news for the measure’s sponsors: he not only is unwilling to keep gay couples from marrying beyond next Wednesday, he doubts the ban’s backers have the right to challenge his ruling.

    And I am straight except when I lay down, then mostly perpendicular or is that moistly…..

  14. excuse me:

    “Or is this really just an excuse to THROW out your unsupported claims…”

  15. Trader,

    I’m trying to figure out exactly how your “contract” marriage is different than the current system. I guess what you’re saying is you want everyone to sign a prenup.

    How does that benefit society, or really do anything but create more work for lawyers? I mean people who want a specific alterations to the standard marriage already have the option of modifying it. And what does ANY of that have to do with the gender of the couples being married?

    Or is this really just an excuse to through out your unsupported claims as to the ‘history’ of marriage and child custody\support laws? Because honestly, you just seem concerned with saying “gays shouldn’t get married.”

    If you repeat something enough times, it must be true, even if the context of the repetition changes. Right?

  16. Byron wrote in “”:

    “what about heterosexuals who cannot have children or who do not want to have children?”

    I threw the last paragraph out as something to consider. Some people are arguing for it. They and couples who have children would simply be treated as two individuals for taxes, Social Security, etc. They would still be married, since they would have a marriage contract. It would really be like a pre-nuptial agreement detailing how property would be split upon death, divorce, etc. and other matters.

    “Through personal observation I can say my conclusion is that children do better in an intact home with a mother and a father.”

    I agree with you. However, according to Judge Walker, this has been “disproved.” Thus, I was looking at what happens if the Ninth Circuit accepts his reasoning. I did not read the studies, but they are posted on a web site.

    He based his decision entirely on expert opinion. However, the NY Court of Appeals, when considering the matter, relied on the historical nature of marriage as the appropriate rationale.

  17. TraderB
    1, August 13, 2010 at 11:35 am
    … It is pretty easy to come up with whatever conclusion you want with such a study. …


    No, it is not.

  18. TraderB:

    what about heterosexuals who cannot have children or who do not want to have children?

    Through personal observation I can say my conclusion is that children do better in an intact home with a mother and a father. However it may come down to stability and not sex as the main factor in child rearing. Same sex couples who have a stable, loving environment probably produce stable children. Whereas hetero couple who are not stable probably produce unstable children.

    So if it is children you are worried about, create a society in which couples can stay together and prosper.

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