Reading his opinion -- which ties each of the findings of fact to the trial record and then lets the legal logic flow easily from there -- the issue doesn't seem to be a close call. Although Prop. 8 proponents will appeal, it will be interesting to see what reasoning could result in a reversal. I'm not saying Judge Walker won't be reversed: Who knows what appellate courts will do?
But his logic, given the record he so carefully lays out, is deeply compelling. Moreover, U.S. Supreme Court Justice Scalia predicted precisely this result when he dissented from a decision that struck down a Texas law prohibiting sodomy. If moral disapproval of private, consensual gay sex couldn't justify a state ban, Scalia argued, then approval of gay marriage was logically inevitable. Not surprisingly, Judge Walker cites that case, Lawrence v. Texas, nine times, including pointers to Justice Scalia's logic.
A Lack of Meaningful Evidence
One of the interesting features of the case is who defended Prop. 8. Normally, the state would defend its own law, and indeed the case is titled "Perry v. Schwarzenegger." But California Attorney General Jerry Brown (a former governor who is now running for that job again) conceded at the outset that Prop. 8 is unconstitutional, while Gov. Schwarzenegger and other named officials declined to take a position or defend the law. So the people behind the movement to pass Prop. 8 stepped up to defend it. Defend it, sort of -- Judge Walker notes early in his opinion that most of the scheduled witnesses for the Prop. 8 proponent side withdrew without testifying.
To win, the Prop. 8 supporters would have had to prove that banning same-sex marriage furthered a legitimate state interest at the appropriate level of scrutiny. Prop. 8 supporters wanted that scrutiny to be: Is Prop. 8 rationally related to a legitimate state interest in marriage? To get that lowest, very permissive, level of scrutiny under the Equal Protection challenge, Prop. 8 supporters had to show that sexual orientation was not a "suspect class" like race, and for the Due Process challenge, Prop. 8 supporters had to show that gay marriage represented a new right, rather than an exercise of the fundamental right of marriage that all citizens are entitled to enjoy. That question of whether gay marriage is a fundamental right underlies all the public debate about the "definition" of marriage.
To make their case, Prop 8 proponents offered only two witnesses, both "experts": David Blankenhorn tried to define the legitimate state interest involved. Kenneth Miller tried to show that gays had too much political power to be a suspect class under the Equal Protection clause. Yet after laying out the standard for expert witnesses, Judge Walker concluded that Blankenhorn was not an expert and that his testimony was unreliable. Miller was ruled an expert in politics generally, but not on the political power of gay people.
Dismantling Blankenhorn's testimony, Walker explained that Blankenhorn's opinions supporting the claim that banning gay marriage involved a legitimate state interest were unsubstantiated. Specifically, Walker declared that Blankenhorn's arguments were not connected to the data he cited to support them -- a withering conclusion. Walker had kinder words for Miller's expertise, but laid out myriad ways in which the witness had demonstrated a lack of knowledge about the political power of gay people -- so much so that he was not an expert on that issue, meaning his opinion didn't count for much.
A Definition of Marriage
In contrast, Prop. 8 opponents offered 17 witnesses, including nine experts, each of whom the proponents conceded was an expert. Prop. 8 opponents tried to show that the state had no legitimate interest aided by banning gay marriage, and to the extent it had one, the ban was insufficiently tailored to furthering it. Finding the opponents' evidence reliable, Judge Walker made those 80 findings of fact, including this definition of marriage:
Walker found the state had many interests in licensing and supporting marriage, including the practical (creating stable households, legitimating children and facilitating property ownership) and the romantic (like "developing a realm of liberty, intimacy, and free decision-making by spouses') Crucially, Walker also found that:Marriage is the state recognition and approval of a couple's choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.
Walker's findings emphasized that sexual orientation was irrelevant when it comes to parenting skill, and that having a gay parent was not intrinsically bad (or good) for a child. Walker further explained why domestic partnership was an insufficient substitute for marriage, and noted that allowing gay parents to marry would benefit their children. He then rejected the idea that allowing gay people to marry somehow affects heterosexual marriages:Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.
Walker also detailed several ways that Prop. 8 "singles out gays and lesbians and legitimates their unequal treatment."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.
Gay Marriage Is as Fundamental as Hetero Marriage
In Walker's analysis of the Due Process challenge to Prop. 8, he looked carefully at history and previous Supreme Court decisions. Importantly, he noted, "Never has the state inquired into procreative capacity or intent before issuing a marriage license," and explained that the historical exclusion of gays from marriage had no purpose.
Rather, said Judge Walker, it was an artifact of the different roles assigned to men and women in marriage that no longer applied. (Think the era of Ozzie and Harriet and earlier, when women lost their legal identities and right to own property after they married.) He further noted that if gay people were seeking a new right, they would be asking for something different from what opposite-sex couples can have. Instead they were seeking exactly the same thing: marriage.
The result is that after Judge Walker's opinion, gay couples are much closer to getting what they want. But they don't have it yet. Not only will Prop. 8 proponents appeal, but the judge has issued a stay of his own ruling while he decides whether or not to allow gay marriages to resume in California while the appeal is pending.