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The Appeal of Prop 8 and the Long Road Ahead


By William N. Eskridge Jr. and Darren Spedale

Earlier this month in Perry v. Schwarzenegger, federal district Judge Vaughan Walker ruled that California’s Proposition 8, a voter initiative amending the state constitution to allow the legislature to exclude lesbian and gay couples from civil marriage, violates the Fourteenth Amendment of the U.S. Constitution.  This is a landmark ruling—but not primarily for the reason that it is being hailed by most supporters of marriage equality (and reviled by supporters of Proposition 8).

Judge Walker’s ruling may bring marriage equality to California soon, for there is some question whether it will be appealed by parties with standing to do so.  (The California Attorney General just announced that he will not take an appeal. Judge Walker has opined that the coalition supporting Proposition 8 that intervened in the case may not have constitutional standing to pursue an appeal.) If there is no appeal, or if a stay is not granted by an appellate court, same-sex marriage will come soon.

If there is an appeal and a stay, the process will probably take a long time to reach a final resolution.  Supporters of Proposition 8 vehemently challenge Judge Walker’s conclusions that the exclusion of lesbian and gay couples is unconstitutional both because it denies them a fundamental right and because it discriminates against them without even a rational basis.  If there is an appeal, the Ninth Circuit will evaluate the constitutional arguments without much deference to the precise legal reasoning in Judge Walker’s learned opinion.  If the Ninth Circuit were to agree with Judge Walker, the Supreme Court would very probably take the case and reach its own conclusions.

This judicial appellate process would take several years, and there is no assurance that marriage equality will prevail.  The current Supreme Court is probably not prepared to nationalize marriage equality as a constitutional matter.   It is possible, however, that either the Ninth Circuit or the Supreme Court might be able to dodge the larger constitutional issues and decide the case more narrowly than Judge Walker did.  Especially if it takes several years for the case to make its way to the Supreme Court (a distinct possibility), it is conceivable that the Court would rule that marriage equality is required by the Constitution.

For the near future, however, the big story is not the federal appellate process but is, instead, the process of public debate about this issue—and Judge Walker’s opinion contributes mightily to that public debate.

The supporters of Proposition 8 were represented by a skilled legal team, led by Charles Cooper, an outstanding lawyer and former high official of the Department of Justice.  Cooper’s legal team had every opportunity to call witnesses, cross-examine witnesses for the other side, and submit documents to support their claims.  Their post-trial submissions to the district court were densely researched.  In short, the supporters of Proposition 8 had a fair chance to demonstrate neutral, public-regarding reasons why committed lesbian and gay couples should be excluded from civil marriage.

Yet they came up with, essentially, no neutral reason.

Judge Walker’s opinion announces that the emperor has no clothes.  Its detailed and careful factual analysis demonstrates that all of the defenders’ justifications for Proposition 8 were based upon spurious reasoning and phony or speculative factual claims.  For example, the defenders of Proposition 8 argued that full marriage equality would undermine the institution of marriage and harm society.  This is a popular argument, memorialized in the now-infamous Defense of Marriage Act that found support among Democrats such as President William Clinton as well as Republicans such as Senate Majority Leader Robert Dole.

Judge Walker, however, found that the defense of marriage argument was a lavender herring.  There was no evidence in the record supporting such a lavish claim—and all of the credible expert evidence refuted the claim.  Same-sex marriages have been recognized in Massachusetts, Canada, The Netherlands, Spain, Sweden, South Africa, and other jurisdictions without any documented harm to the institution and with ample evidence that society had benefitted.

Likewise, defenders of Proposition 8 claimed that the exclusion of lesbian and gay couples promoted “enduring and stable family structures for the responsible raising and care of children by their biological parents” by increasing the odds that more children will be raised by their biological parents.  Again, the defenders were invoking a valid state interest (the well-being of children), but their claims were inconsistent with every scrap of credible evidence in the record, as documented in Judge Walker’s opinion. Instead, all of the credible evidence supported the conclusion that Proposition 8 had utterly no effect on the proclivity of straight couples to rear children within a stable marital relationship.  Moreover, Judge Walker found, as a matter of essentially undisputed fact, that lesbian and gay parents can and do provide good homes for children they are raising—a critical state interest undermined by Proposition 8.

For decades, opponents of marriage equality for lesbian and gay couples have been saying that gay marriage would represent the “end of marriage” and would hurt children.  These claims have always rested upon either stereotype-saturated speculation or made-up evidence.  Judge Walker’s opinion exposes these longstanding claims for that they have always been—desperate efforts to justify a longstanding discrimination that a persecuted minority was no longer willing to tolerate.

Every American should read Judge Walker’s opinion, not so much for its fine constitutional analysis, but rather for its remarkable factual findings.  These findings are profound and ought to be debated publicly as well as judicially.  The public debate ought to occur in several important forums.

One forum is the media and public in-person debates.  By finding that Proposition 8’s supporters could not muster any rational basis for excluding lesbian and gay couples from civil marriage, Judge Walker has thrown down the gauntlet to opponents of marriage equality.  What is the neutral basis for excluding such couples from civil marriage?  Is there a public justification that does not rest upon sectarian or stereotypical beliefs?  For twenty years, our nation has been debating this issue, and opponents of marriage equality have yet to come up with a non-sectarian basis for discriminating against such couples.  We challenge opponents of marriage equality to in-person, public debates, anywhere in the country, on this issue.  Either of us is available to debate opponents of marriage equality.

A second forum is legislative.  Judge Walker’s opinion will probably stimulate federal constitutional lawsuits in other states—but the more important forum for marriage equality is state legislatures.  Americans have forgotten that the revocation of laws barring interracial marriages were accomplished in the large majority of states by legislators, not by judges. A similar phenomenon might occur for laws barring gay marriages.

Judge Walker’s factual findings ought to be Exhibit A for proponents of marriage equality to press state legislatures to recognize same-sex marriages.  Legislatures in Vermont, New Hampshire, and Connecticut have done precisely that.  Legislatures in other states, such as New Jersey, Oregon, and Washington, have recognized civil unions and domestic partnerships with the same legal rights and duties of marriage but not the name.  This was not full marriage equality, but was in each state a major step in that direction, as it had been in Vermont and Connecticut (as well as Canada and Europe).

A third important forum for debate involves voter initiatives.  As a practical matter, marriage equality will probably not come to the United States until its proponents start winning voter initiatives like Proposition 8.  The best way to bring marriage equality to California would be through a new voter initiative, revoking Proposition 8 (which prevailed by a slender margin in 2008). With so little to support discrimination against committed couples, many of them raising children within their unions, voters ought to be receptive to revoking Proposition 8 in 2012—a move that would probably “moot” the Perry lawsuit before it reached the U.S. Supreme Court. (If there ends up being no appeal, an initiative in 2012 is less likely, but an initiative ought to be considered in the future.) Electorates in many other states have adopted state constitutional exclusions like Proposition 8; over time, efforts should be made to revoke these as well, perhaps with judicial prodding such as that provided by Judge Walker.

Our overall point is that Judge Walker’s ruling does not bring marriage equality to California or anywhere else, and it is doubtful that the U.S. Supreme Court will bring marriage equality to the nation in the next four years.  But marriage equality is an idea whose time has come, and Judge Walker’s fact-based opinion is an important document demonstrating that marriage discrimination against lesbian and gay couples is unjust, unreasonable, and (ultimately) unconstitutional.

­­­­William N. Eskridge Jr. (the John A. Garver Professor of Jurisprudence at the Yale Law School) and Darren Spedale (a Consultant) are co-authors of Gay Marriage: For Better or For Worse? What We’ve Learned from the Evidence. You can read their previous posts on marriage equality here.

Recent Comments

  1. Bill

    You should keep yourselves a little more up to date before publishing your articles.

    The Prop 8 case is quite likely to be denied an appeal to the 9th Circuit due to Article III standing. Its chances of reaching the Supreme Court – virtually ZERO.

    What lazy, lazy ‘writers.’

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