Further Thoughts on Perry

As half-promised, some thoughts on the legal aspects of the Prop-8 ruling, Perry v. Schwarzenegger Note: It’s lengthy. For lots more analysis, by better qualified people, check out the Volokh Conspiracy.

Facts v. Law
In any legal ruling, there’s an important distinction between establishing the facts of the case and interpreting how the law should be applied as a consequence of those facts. Superior courts rarely re-consider the facts, but accept the facts from trial as a given. Because this was a Federal District Court case, it was in fact an actual (civil) trial, so the Judge’s establishment of facts is a crucial element in determining how this case will be reviewed above, as no new facts can be presented on appeal.

I think Judge Walker did an excellent job of establishing a set of facts determining that no legitimate government purpose was served by Prop 8, that the State of California had no real “interest” (the legal term for things a state may legitimately concern itself with, like drunk driving, speed limits, etc.) in preventing gays from marrying, and that the only purpose served by Prop 8 was the enforcement of a “private moral view.”

Working solely off those facts, it would be hard to over-rule this decision. But as we all know, Supreme Court justices interpret facts in ways that are convenient to their own moral and legal preconceptions. And as Dave Hoffman notes, “there are facts and then there are constitutional facts.” Constitutional facts differ from “his fingerprint was on the knife,” and are more open to debate, being of the (to quote Hoffman) “sexual orientation is a fundamental characteristic of a human being.”

Due Process and Equal Protection
These were the legal pillars of the plaintiffs’ case, and it’s not surprising that they challenged Prop 8 on both due process and equal protection grounds. Not knowing which arguments will be compelling to a judge, it’s common to present multiple arguments, hoping at least one is persuasive. What is a bit surprising is that Judge Walker ruled against Prop 8 on both bases, a bit of judicial overkill. But I think he was consciously trying to set up this case for further review, employing the same tactics as the the plaintiffs. “If the 9th or the Supremes rule I’m wrong on X grounds, maybe they’ll accept Y grounds.”

Equal Protection
I’ll address the equal protection argument first, as it is more straightforward. The 14th Amendment says that no state shall deny any person the equal protection of the law. That’s a noble sentiment, but when is a person being denied equal protection? Not all legal distinctions deny equal protection of the law, so it’s not enough to simply say “X doesn’t get what Y gets” (e.g., 20 year olds don’t get to buy liquor). One has to explain why denying X that thing rises to the level of being denied equal protection of the law.

As Judge Walker notes, that is shown by demonstrating either that a) the group that is not protected by the law is a suspect class,* or b) what’s being denied is a fundamental right.

There is no complete and concrete definition of a suspect class, but the general principles that are applied are that they have historically been discriminated against, they are a discrete or insular minority, their distinction is based on an immutable characteristic (e.g., being black), and political powerlessness. This explains why religious conservatives are so eager to deny that homosexuality is an innate characteristic. If you can change from gay to straight, then that’s one less bit of support for protecting homosexuals legally–“See, it’s not an immutable characteristic!”

It also explains why the Prop 8 defenders brought in an expert witness to claim that gays are not politically powerless, although his level of expertise on that issue was revealed to be basically non-existent.**

This is difficult ground, though, because the Supreme Court has never declared homosexuals a suspect class. I think this is what is behind the confusing (and frankly unpersuasive) section in which Judge Walker talks about the plaintiff’s claims that the law is both sex discrimination (a man can marry a woman, but a woman can’t), and sexual orientation discrimination, and tries to link them together, concluding that;

Having considered the…relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or lesbian would exercise, the court determines that plaintiff’s equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

I don’t buy it, and I don’t think higher courts will, either. It’s a none-to-subtle attempt to link the non-suspect class “homosexual” to the (mostly) suspect class “sex (gender).” But the Judge has little choice, given that the Supreme Court has passed on opportunities to define homosexuals as a suspect class.

In other words, taking a straight-forward equal protection approach, relying simply on how the Supreme Court has treated homosexuals in the past, would mean Prop 8 is upheld at the District Court level.*** To strike down Prop 8 on equal protection grounds, Judge Walker had to conflate sexual orientation discrimination with sex discrimination in a way that I don’t think will hold up.

Due Process
Contemporary due process jurisprudence is complex, and difficult to explain to those who haven’t had the dubious privilege of studying it. Taken strictly, due process ought only to refer to process (a point that Scalia has made vigorously at times), rather than to the outcome. For example, government can condemn my house and take it from me if they follow a proper process, but they can’t just do it randomly or willy nilly, or kick me out without warning. The same for imprisoning me. But as to the outcome–yes, I can have my house taken, and I can be put in prison. Neither outcome is in itself forbidden.

Therefore it might seem as though the outcome of forbidding same-sex marriage could not in itself run afoul of due process, although the process used in achieving that end could be. But what process could be more due than a public vote on what constitutes marriage? After all, if the citizens of California had passed Prop 8m, saying that no minors under the age of 16 could marry, we’d undoubtedly treat that as a legitimate process.

But this naive view doesn’t take into account the odd concept of substantive due process, which–in a nutshell–means that when “fundamental rights” are involved, no process can be “due enough.” More technically, the process must withstand “strict scrutiny,” showing that the state has a “compelling interest” in burdening that right, and that their law is “narrowly tailored” to do no more necessary. But as a practical matter, the strict scrutiny test is the kiss of death for legislation, so my first description–that no process can be “due enough” to violate fundamental rights–is good enough for general discussion.

The Supreme Court has long since ruled that marriage is a fundamental right, so the question in this case, as clearly posed by Judge Walker, is

whether plaintiffs seek to exercise a fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right.

Given the Supreme Court’s reluctance–which I don’t anticipate will change–to declare homosexuals a suspect class, thus securing an Equal Protection claim–I think this distinction is the crucial one. Convince a majority of the Supreme Court that SSM is just plain ol’ marriage, and they’ll say, “Yes, a fundamental right is being denied.” Persuade them that it is in fact different from “normal” marriage, and they can easily say it’s not a fundamental right.

This is why opponents are eager to claim that marriage has a historical definition of man and woman (even polygamous marriage); as a means of defining SSM as a new right. But Judge Walker rejects their definition of marriage, and accepts the plaintiffs’ argument that marriage is about two people joining together for the purpose of creating a household, sharing economic burdens, etc., which sets aside concepts of gender-roles in marriage. He grants that those gender roles used to be implied, but notes that we have successively stripped out those roles from the meaning of marriage, by eliminating concepts of coverture and the procreation-basis of marriage. Absent gender roles as a crucial element of marriage, marriage has no gender basis, so there is no interest in requiring a specific gender-structure in a marriage. Judge Walker concludes;

…the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and marriage. That time has passed.

That’s a fairly subtle argument that will surely go over the heads of most opponents, or be seen as simply an attack on traditional marriage and family. But I think it’s a very strong legal argument. If the law recognizes no gender aspects to marriage, then what legal purpose is served by requiring that marriage be made up of one person of each gender? I think Judge Walker is on very shaky ground in arguing that “[gender] restrictions were never part of the historical core of the institution of marriage,” and he will be severely criticized for that claim. But I do think he’s made a compelling case that that core has long since ceased to have any functional meaning in marriage, and yet marriage has continued to thrive as a “union of equals.”

That sounds right to me. The question is will it sound right to those who have more say in it than I do?

*I hate the term “suspect class.” It’s not the class of people that’s suspect, it’s the legal classification of them as a group that’s suspect.

**I have some sympathy with the claim that gays aren’t politically powerless, at least so far as it refers to California. It was important for the plaintiffs to try to establish every point here, but no one who has looked seriously at California politics could argue that homosexuals are politically powerless in the way that African-Americans in the South were back in 1930. Not winning on every issue does not equal political powerlessness. But this case is a bit strange, as it repeatedly veered between being about California politics and being about the federal constitution. Looked at from the national level, gays are still politically weak. But that distinction between local and national political influence was not addressed by the Court, so as I could see.

***Even though it seems obvious, to people like me, that homosexuals have been, and are being, discriminated against, and that this is an obvious denial of equal protection. Saying “you and only you may not marry your beloved” seems to me the very Platonic type of invidious discrimination.


About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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3 Responses to Further Thoughts on Perry

  1. Scott Hanley says:

    Thanks for writing these up; very helpful.

  2. Matty says:

    “the Judge’s establishment of facts is a crucial element in determining how this case will be reviewed above, as no new facts can be presented on appeal.”

    It’s largely off topic but how absolute is this? For example I believe that at least for criminal trials in the British system an appeals court can find that the evidence originally presented was insufficient (say if a witness publicy admits to lying under oath) and send the case back to a trial court for a retrial.

    Is there any equivalent in the US and if so could it extend to a civil case?

  3. D.A. Ridgely says:

    Note that Walker certified the entire trial record for appellate review; thus, not only his specific findings of fact are available for consideration on appeal. Moreover, while appellate courts generally accept the facts established in the trial court record, they are free to weigh these facts differently.

    I’m not a fan of substantive due process for reasons I won’t go into here. Nor do I think it likely the SC will finally get off the dime and declare sex, let alone sexual orientation, a suspect classification for equal protection scrutiny purposes. That said, I did think the argument that prohibiting same sex marriage discriminates not only on the basis of sexual orientation but also on the basis of sex was a nice albeit somewhat sophistical argument. I also thought the discussion of evolving equality in gender roles (i.e., the death of coverture) is “good lawyering” and will (pun intended) have some appeal when the case reaches the Court.

    As you note, no process is “due enough” to abrogate a fundamental right, so if the Court were to affirm the due process argument, I can’t see how any state would thereafter be able to deny same sex marriage. My shoot from the hip guess therefore is that, rather than make a broad ruling, the Court will agree with Walker’s determination that the record in this particular case does not withstand rational basis scrutiny.

    As an aside, while I know interveners were permitted to join and argue for the constitutionality of Prop 8, it appears that the state, itself, presented only a lackluster, pro forma defense. I wonder therefore whether, had the state really gone to bat for Prop 8 and mustered as much statistical evidence, etc. as it could to meet at least the rational basis test, Walker could have ruled as he did.

    This is all very breezy, you understand. I just sped through the opinion, haven’t looked at the trial record, nor have I really been following the case previously. So there’s as good a chance as not that I’m all wet here.

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