Judge’s Gay-Marriage Ruling Could Box in Appeals Courts
A federal judge’s findings of fact in his opinion striking down California’s ban on gay marriage could box in appeals courts considering the issue.
Judge Vaughn Walker’s 136-page opinion (PDF) is replete with references to expert testimony that undermines rationales offered in support of the Proposition 8 ban on gay marriage, the New York Times reports. “The voters’ determinations must find at least some support in evidence,” Walker wrote. “Conjecture, speculations and fears are not enough.”
Walker ruled that the voter-approved Proposition 8 violates both the due process and equal protection clauses of the 14th Amendment, saying the measure doesn’t even pass a rational basis test. The plaintiffs challenging the measure were represented by Theodore Olson and David Boies, lawyers who opposed each other in Bush v. Gore.
Northwestern University law professor Andrew Koppelman told the Times that the opinion’s grounding in fact will make it more difficult to overturn because appeals courts traditionally give greater deference to findings of fact than findings of law. “If the Supreme Court does not want to uphold same-sex marriage, its job has been made harder by this decision,” he told the newspaper. “This opinion shows why district courts matter, even though the Supreme Court has the last word.”
The plaintiffs challenging the law called nine expert witnesses. One psychologist testified that research has shown remarkable similarities between same-sex and opposite-sex couples, and another psychologist said children raised by gays and lesbians are just as likely to be well-adjusted as children raised by heterosexuals.
Walker avoided applying a strict scrutiny standard that could be overturned on appeal, opting to apply a rational basis test, which is in line with the standard applied by Justice Anthony M. Kennedy in an opinion striking down a state sodomy law.
Loyola Law School at Los Angeles professor Doug NeJaime told the newspaper that Walker’s choice of the lower level of scrutiny “is speaking to Justice Kennedy.” Still, he’s not sure the U.S. Supreme Court will agree with Walker. “The Supreme Court rarely likes to get too far ahead of things,” he said.
Additional coverage:
Washington Post: “Judge strikes California’s ban on same-sex marriage, Proposition 8”
