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. The main problem with the defense was that they got into the murky area of what is the best environment for children. It was a shootout between sociological studies. It is pretty easy to come up with whatever conclusion you want with such a study.

    The best argument is that it involves property rights and child support, clear interests of the state. Marriage seems to have been invented to ensure as best as possible that a man would support only children that were his. They were heavy penalties for wives who strayed and the man who intruded on a marriage.

    Since gays cannot procreate, there is no reason for them to have the protection of marriage.

    The question then becomes whether marriage is really needed in the modern world. We can identify the biological father through DNA testing. Woman also can support the children. Thus, there is not much advantage for state involvement in marriage.

    People could then write up whatever marriage contract they wanted and have the marriage sanctified in a church, if they desired. The law would treat them as individuals with extra benefits going only to those with children, whether biological or adopted. Why bother with the red tape, when there is no need for it?

  2. What a terrible opinion! In fact, this whole controversy is misplaced. Did the state create marriage? Did it define it? So why is it in the business of redefining it? As the S. Ct. of CA held in In re Marriage Cases, marriage has always meant the union of a man and a woman. So why change it?

    The issue is that the state recognizes marriage as a valid civil union. The “umbrella” is the civil union, not marriage. Whether the state recognizes it or not, marriage exits independent of the state. And thus “attacking” marriage is simply a tangential issue of sour-grapes.

    The problem is that these types of decisions undermine the fabric of our separation of powers. If the judiciary can unilaterally change and redefine words and adulterate our language (read In re Marriage Cases if you disagree that this is precisely what is being done), then the power of the Legislature to write laws and the Executive to enforce them is completely undermined. There MUST be linguistic integrity, or laws become discretionary by the judiciary and the rule of law no longer exists.

  3. Blouise,

    I prefer the term ‘science-y’. It’s more science-y, don’t you think?

    I was feeling left out, so I sent you an email, too… 😉

  4. AY,

    Oh come on you big baby … you can use my email address too.

    I need Slarti to help with the scientific stuff … besides somebody has to play the Chief of CONTROL role … YOU can’t have every part!

  5. Slartibartfast,

    “I think I’ll pull a Gonzales on my MSU days right now – I don’t recall. 😉 And there are many reasons one might go on walking tours of parks in East Lansing at 3am…


    The only thing that comes to mind is trying to figure out how to get home……Been there…’s like getting lost in your back yard…..I can’t say that I remember that either….


    I always thought that the more important skill in EL was how not to get tear gassed (at Cedarfest the skill of how not to be hit by a flying beer bottle was also handy).”


    No Shit…..everyone must get stoned was the motto when I was going to college….it was a very fine High School……exceeding academic excellence in search of god….a day ending in “Y.” The Pope died a puff of White Smoke in remembrance a puff of White Smoke in the announcement of the new pope….

    Oh yes, missing flying beer bottles….been there too….I even had an ex-wife that I got good at ducking when shit flew…..

    Lesson learned….never get married in College….That was a note to self….

  6. I’m hoping that there will be Congressional hearings to investigate what the FBI and intelligence agencies have been up to the past 10+ (or more) years. We should all be demanding hearings, IMO. Let’s get to the bottom of what’s going on domestically. Whistleblowers need protection, including immunity (if necessary) to get this out in the open.

  7. No, no. I didn’t mean to imply that I’m the lone canary. Just one of many.

    And this isn’t about me at all — I’m a relative nobody who happens to be caught up in something beyond my control. One of these days, there will be a break and, then, I’ll tell the story.

  8. “And it’s going to get ugly, given what I’m seeing. I’m the old canary in the mine.”

    you are not the only canary….but I’d love to hear your story….

  9. AY,

    I think I’ll pull a Gonzales on my MSU days right now – I don’t recall. 😉 And there are many reasons one might go on walking tours of parks in East Lansing at 3am…

    I always thought that the more important skill in EL was how not to get tear gassed (at Cedarfest the skill of how not to be hit by a flying beer bottle was also handy).

    Regarding your hypothetical gas attack, Mythbusters did an episode on tasers igniting people, but I don’t think they considered farting – I’m guessing that if I get you from the front in the chest, I’ll be fine, though.

    Changing TraderB’s mind is not the point – it’s to point out his lies, misinformation, and propaganda.

  10. What Slarti…to many of your MSU days behind you?

    Now taser classes are offered as a required course. How to Avoid being tased while attending a MSU ______ Game…..

    How to avoid the MSU police and still stay alive….

    How to go to down Michigan Ave and not be tased…

    How to have fun at Cedar fest and not be tased….

    How to go to torch a couch and not be tased….

    There is a lot more to East Lansing than meets the eye…

    If the cops at OU did the same thing(s) that MSU does to its students…..somebody would end up dead or fired…and it wouldn’t be a student….

    So you think I need to learn that saying…What if I farted at the exact moment you tased me…would you be burnt to a crisp?

    Acid….I think TraderB has had its fair share at the fair….hell who knows…..maybe he did the magic 8 ball and survived….JohnB…didn’t …..Richard Pryor…ran on fire….he became a crispy critter….may he rest in peace….I just wonder if TraderB should be just ignored…we are not going to change his ilk…..

    anon nurse,

    Thank you…..

  11. AY,

    Don’t malign LSD users like that! And Blousie was offering me a stun gun to hold on your ass – Buddha was only to provide training. You’d better start rehearsing the line ‘Don’t tase me, bro!’…

  12. A double post. Sorry. Now it’s really time to sign off.

    Buddha wrote:

    “These people have done more damage to American international standing and the economy than any terrorist organization could ever accomplish with bombs and hijackings.”

    Truer words were never spoken (written). What terrifies me is that there are so many angry folks who hate Democrats and liberals to such a degree that that they really do wish us ill…

  13. TraderB,

    Exactly how much Acid have you done in your life to be this Fucked Up? I imagine that you left Timothy Leary at the alter.

    Anchor Babies and Votes? Its not about….I, I,I,I,I,I,I…..don’t know what to say….I,I,I,I,I am speechless…..

    Crackheads are not this messed up so it can’t be the Cubans….

    And then 911? You have to be shittin me man….You don’t think that they knew? Then why was George reading a children’s school book upside down? Why were Cheney and Bush out of Washington on the same day and Dick was not heard from for two months?


    You would too piss on TraderB if he was on fire….but only if you were pissing straight ethanol…I can show you the trick to that…


    Trading emails with anon nurse….whaaaaa….giving slarti a staring part without my approval….giving Buddha a stun gun to hold on my ass…..

    I should have known that it was going to turn out this way…especially when the wheel cam off of the lawnmower this morning……lol

  14. Blouise said:


    There is a place for you in my novel but you have to agree to be AY’s keeper at the Oscars when he’s giving his acceptance speech (Buddha will show you how to operate the stun gun)”

    It would be my honor to drop him like a rabid dog at the appropriate moment. 😉

  15. Blouise, I’ll e-mail you and you’ll have my address. Then, yes, metoothinks that you’ll have to reset the filter. 🙂

  16. anon nurse,

    Great! My husband and I are out the door but I will read it as soon as we return this evening.

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