WASHINGTON — Advocates for traditional marriage received a setback last week when a California district court judge ruled Proposition 8 — a 2008 ballot initiative that amended the California Constitution to prohibit the recognition of same-sex “marriages” — unconstitutional.
But legal experts and political activists that back Proposition 8 contend Judge Vaughn Walker’s opinion in Perry v. Schwarzenegger is based on flawed legal and factual findings that increase the probability it will be overturned on appeal.
Judge Walker ruled that Proposition 8 violated the “due process” and “equal protection” clauses of the 14th Amendment , but he temporarily stayed his own decision. Same-sex couples in the state may have to wait for an appellate court ruling. Ultimately, the appeals process could take the case to the Supreme Court.
Elements of Judge Walker’s opinion most likely to draw intense scrutiny by an appellate court include his characterization of the popular and religiously based belief in traditional marriage as “irrational” and “bigoted.” Conservative scholars also dispute an interpretation of legal precedent that approaches same-sex “marriage” as the natural evolution of legal marriage as it has long been understood and practiced.
“There are two broad legal issues: One is the ‘due process’ claim, and the second is the ‘equal protection’ issue,” noted Anthony Pugno, general counsel for ProtectMarriage.com, the coalition of California groups that support Proposition 8.
In his opinion, Judge Walker stated that “Proposition 8 cannot withstand any level of scrutiny under the equal protection clause.” He concluded that “[e]xcluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.”
According to Pugno, “The judge’s conclusion that it is irrational to believe that traditional marriage is different and special goes to the equal protection issue. This argument is vulnerable,” he suggested, “because it contradicts common sense.”
Editor’s note: This story was filed prior to the announcement that Judge Walker lifted his stay of his decision Aug. 12. According to The New York Times, he delayed implementation of the order to lift the stay until Aug. 18.
Fifty-two percent of California voters backed Proposition 8. Its supporters contend that Judge Walker’s lengthy opinion failed to prove his charge that their position was unreasonable.
Pugno believes that the other legal basis for decision — the due process claim —
is also vulnerable. “Judge Walker interpreted the fundamental right to marry to be gender neutral, which is contrary to our nation’s entire legal history and precedent,” he said.
During the two weeks that Judge Walker received testimony in Casey v. Schwarzenegger, the San Francisco courthouse provided a forum for a heated, often emotional debate over whether the legal challenge actually sought to establish a new right to same-sex “marriage” or broaden the scope of a right already protected under the Constitution.
Judge Walker’s opinion incorporated numerous findings of fact culled from the testimony of same-sex couples and expert witnesses called by the plaintiffs’ attorneys. That testimony spoke of the goodness of same-sex unions and the strong outcomes of children raised in such households.
After Judge Walker issued his opinion, Theodore Olson, the plaintiffs’ attorney, repeated the plaintiffs’ central argument: “We do not put the Bill of Rights to a vote.” In an interview on Fox News, the former solicitor general added that “the right to marriage is a fundamental right.”
Many liberal scholars agree with Olson. Andrew Koppelman, a professor at Northwestern University School of Law in Chicago, was among those who applauded Judge Walker’s opinion as well, argued.
Legal Minds Question Decision
But Ed Whelan of the Ethics and Public Policy Center, a Washington, D.C.-based research center, echoes the view of legal experts who believe the judge’s opinion will prove to be a significant hurdle for the plaintiffs during the appeals process. “No serious judge would defer to the purported factual findings that Walker concocts,” said Whelan.
Michael Moses, associate general counsel to the U.S. Conference of Catholic Bishops, went farther, questioning Judge Walker’s decision to base much of his opinion on findings of fact.
“The constitutionality of marriage understood as the union of one man and one woman is a question of law. It could be decided without a factual record,” said Moses. “What Judge Walker held, in effect, was that there was no rational basis for legislative classification that involves marriage understood as the union of one man and one woman. That is incorrect as a matter of law.”
Critics challenge Walker’s interpretation of legal precedent. They say that the fundamental right to marry, interpreted in interracial-marriage cases and polygamy cases, has always been understood to involve the right of a man and a woman to marry. Yet the judge cited these cases to bolster his conclusion that gender was a peripheral matter.
On to the 9th Circuit
Those who uphold the constitutionality of Proposition 8 believe their interpretation of legal precedent will ultimately be vindicated. But the field of constitutional law has become fractured by ideological divisions over gender and sexual orientation issues, and much depends on which appellate judges in the 9th Circuit will be randomly selected to review the case.
“Walker’s opinion is out of step with exiting Supreme Court precedent, but the 9th Circuit is divided and includes radical lefties and conservatives. So it will be a sensible decision or crazy decision,” said John Eastman, a professor of constitutional law at Chapman University Law School in Orange, Calif., who recently took a leave of absence to campaign for the GOP nomination for California attorney general, but lost his bid to Steve Cooley.
Maggie Gallagher, president of the National Organization for Marriage, an advocacy group that has played a key role in same-sex “marriage” battles throughout the country, predicts that if the 9th Circuit upholds Judge Walker’s decision, the move will fuel voters’ anger over judicial overreach.
“Even pro-gay ‘marriage’ legal scholars are expressing mounting reservations about Judge Walker’s very odd opinion, which reads more like an advocates’ brief than the words of a neutral referee,” said Gallagher.
Jonathan Rauch, the author of Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America (2003), confirmed that many homosexual activists fear a political backlash against “marriage equality” similar to the ongoing battle over Roe v. Wade.
“Sometimes the right answer for the courts is to step aside and let politics do its job,” Rauch observed in a recent New York Times op-ed.
Such concerns may lead liberal judges on the 9th Circuit to adopt a cautious approach to their task of judicial review. Meanwhile, Andrew Pugno of Protect Marriage.com waits for his next day in court, bolstered by an undimmed optimism.
“We are confident that the sensationalism of this show trial will pass and we will prevail under the law,” said Pugno. “The media coverage of the trial dealt with political and social arguments. But they won’t decide the legal argument.”
Joan Frawley Desmond writes from Chevy Chase, Maryland.