On May 26, 2009, the state Supreme Court ruled that Prop 8 was indeed legally passed by public referendum and had the full force of law, though it could not invalidate those 18,000 marriages performed between May and November. Prop 8 opponents sued in federal district court -- the U.S. District Court for the Northern District of California, in the case of Perry v. Schwarzenegger -- to have the initiative overturned as violating the federal Constitution. Neither Gov. Arnold Schwarzenegger nor Atty. Gen. Jerry Brown would support Prop 8 so the defense fell on the conservative organization Protect Marriage, which had pushed Prop 8's passage in 2008. The plaintiffs, meanwhile, had star Bush v. Gore lawyers Ted Olson (from the Bush camp) and David Boies (from the Gore camp) on their side.
On Wednesday, Chief Judge Vaughn Walker issued his decision in the case and wrote what many see as a landmark opinion in favor of the plaintiffs. Indeed, his language was sweeping, broad, and unequivocal: "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to protect marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."
Walker reasoned that Prop 8 violates federal due process and equal protection guarantees of the Fourteenth Amendment. The immediate real-world effects of the decision -- allowing same-sex marriage again in California -- are unclear as Judge Walker stayed his decision until he hears arguments for and against a longer stay pending appeal to circuit court. In any case, the defendant-intervenors have already appealed to the Ninth Circuit, where a three-judge panel will eventually decide if Judge Walker's decision was correct. While Walker's decision could soon mean the return of gay marriage in California, the Ninth Circuit has jurisdiction over all five Pacific states, Nevada, Arizona, Idaho, Montana, and the territories of Guam and the Northern Mariana Islands. Thus, a circuit decision affirming Walker would mean legal same-sex marriage in fourteen states (Massachusetts, Connecticut, Vermont, New Hampshire, and Iowa already have it) and two U.S. territories plus the District of Columbia, a situation sure to prompt a grant of certiorari in the Supreme Court.
The most significant portion of Judge Walker's decision in Perry is not his ultimate judgment to overturn Prop 8, but his findings of fact, which are groundbreaking and extensive. For a Republican appointee, he bases the outcome on a litany of progressive-minded statements and findings that are sure to drive the Religious Right into a frenzy. Among his findings of fact: that individuals do not generally choose their sexual orientation, that domestic partnerships lack the social meaning associated with marriage, that Prop 8 has had a negative fiscal impact on California and local governments, that gays and lesbians have been victims of discrimination and are thus a "suspect class" for equal protection purposes, that religious beliefs against gay and lesbian relationships harm gays and lesbians, and that there is no credible evidence that children raised by gays or lesbians are adversely affected by that situation. What makes these statements so meaningful is that the Appeals Court is not tasked with challenging the District Court's findings of fact, only its conclusions of law. Therefore the Ninth Circuit panel must accept the logic upon which Walker based his decision, a foundation of reasoning that is devastating to the pro-Prop 8 side.
The findings of fact situation along with the Ninth Circuit's traditional liberal bent makes it likely, in most analyses, that Walker will be affirmed in Schwarzenegger v. Perry and that same-sex marriages will be performed throughout much of the Western United States within a year or so. Thus comes the final step -- appeal to the Supreme Court.
Some doubt that the esteemed Justices will want to take on a social and cultural hot potato like gay marriage within just two years, which would be a conservative timeframe estimate for when this case reaches the top. But if lower court decisions have already struck down same-sex marriage bans in nine states, the Supreme Court's hand will be more or less forced and the Justices will, I believe, grant certiorari to hear the case. Knowing that these social-issue cases tend to divide conservatives like Chief Justice Roberts and Justices Scalia, Thomas, and Alito from liberal-leaning Justices Ginsburg, Breyer, Sotomayor, and (we expect) Kagan, the swing vote, as in most gay rights cases, will be Justice Kennedy. At first glance, Kennedy is a moderate conservative who will be reluctant to force a new kind of social arrangement on 40 or 45 states. Indeed, one would think him inclined to issue a narrow decision along the lines of "Prop 8 is unconstitutional, but other kinds of state laws and amendments could meet the due process and equal protection requirements of the U.S. Constitution."
But as one digs deeper, a landmark liberal ruling from Kennedy on this subject seems more and more plausible. For one, he wrote the Court's opinions in Romer v. Evans (1996), invalidating a Colorado state constitutional amendment barring the passage of any anti-discrimination law for gays, and Lawrence v. Texas (2003), invalidating all state sodomy laws. He also joined Justice Ginsburg's 5-4 opinion this year in Christian Legal Society v. Martinez, upholding a law school's accept-all-comers non-discrimination policy for recognized student groups. (A student group had sought school recognition and funding despite its refusal to admit gays and several other classes of people.) Also, as legacy-minded and sensitive to the future as the 74-year-old Kennedy is, he will be keenly aware that history is on the side of same-sex marriage and that there is now a justifiable moderate case for allowing it. The presence of Ted Olson in the district court case certainly helped the plaintiffs portray their arguments as nonpartisan and non-ideological pleas for fairness and equality under the law.
But most importantly, Judge Walker's ruling was specifically tailored to appeal to Justice Kennedy, since ultimately the Supreme Court is free to invalidate the district court's findings of fact and evidence as well as conclusions of law. Walker referenced both explicitly and implicitly Kennedy's decisions in Romer and Lawrence and utilized Lawrence's due process reasoning extensively. Marriage, his opinion held, is a fundamental right that cannot be abridged without due process and purely to target a suspect or unpopular group. However, even if marriage is not a fundamental right, Walker concluded, California had no rational basis or state interest in denying it to all gay and lesbian couples and thus Prop 8 fails even the most generous standard of legal review. In Lawrence, Kennedy said that states had no rational basis in outlawing certain sexual practices between consenting adults and thus sodomy laws failed even the most generous standard of legal review. Frankly, Walker could not have written a decision more designed to attract Kennedy's affirming vote.
We still must see where Schwarzenegger v. Perry goes in the Ninth Circuit, but increasingly the feeling out there is that the tide of same-sex marriage is being greenlighted by the federal courts and that said tide is ultimately unstoppable. What few of us expected is that we'd be on the verge of a landmark Supreme Court ruling on nationwide same-sex marriage come 2012 or so, but it is now difficult to imagine the issue not resolving by then.
