The 136 page ruling issued by U.S. District Court Judge Vaughn Walker on Wednesday on California’s ban on same-sex marriage, known as Proposition 8, contains a number of findings of fact as well as conclusions of law. It is a ponderous document. But I’ve reviewed the substantive "conclusions of law" declaring Prop. 8 as unconstitutional, and I have have an opinion, and some experience in winning Federal civil rights cases, so here it is….
My biggest problem, and perhaps the biggest legal hole in the decision, is Judge Vaugh’s conclusion of law that Proposition 8 involves a fundamental constitutional right. The reality is, the U.S. Constitution doesn’t mention marriage anywhere, let alone gay marriage. It was certainly not a factor in the discussions of our Founding Fathers. ( I’m pretty sure Benjamin Franklin would have busted his corset if it was ever brought up.) Gay marriage has never before been found to be a constitutional right in any court in the United States. So what Vaugh has done is set the stage for ground-breaking further legal review and a final resolution of that issue by the U.S. Supreme Court, namely, whether gays have a fundamental constitutional right to marriage. That was lawyer Ted Olson’s aim from the very beginning of litigation, and he got what he wanted from this judge.
I think it is likely that the U.S. Supreme Court will not agree with Judge Vaugh that gay marriage is a vested constitutional right. Setting aside that point for now, we advance to Judge Vaugh’s separate fall-back position to enjoin Proposition 8, which is that Prop. 8 is an "irrational" law.
Vaugh concludes that Prop. 8 not only involves a fundamental right, but also establishes an "irrational classification on the basis of sexual orientation." What the judge is saying here is that he cannot find a rational basis in limiting marriage to a man and a woman, regardless of whether a fundamental right is involved.
For Equal Protection purposes, a law will be subject to "strict scrutiny" if it is found to impinge a fundamental right, such as voting, or involves a "suspect classification," such as race or national origin. The analysis is similar to the "fundamental right" angle mentioned above. However, there are other, lower, easier levels of judicial scrutiny in Equal Protection cases. Legislative classifications are generally presumed valid, however, they are usually subject to this lower form of scrutiny, stiff tough, and will only be struck down if the challenger shows that the classification is not rationally related to a legitimate state interest. But establishing a rational basis in the Prop. 8 case is a lot different from applying "fundamental scrutiny." Fundamental scrutiny has a lot of case law behind it, while "rational basis" is more like "beauty is in the eye of the beholder."
Well, Judge Vaugh’s decision does declare gay marriage a fundamental right under the U.S. Constitution. As i said, I think he’ll lose on that. But it does also declare that California has no rational basis or legitimate state interest in maintaining the institution of marriage. To me, there is plenty of rational basis and state interest in keeping marriage in the same form as it has been since the beginning of recorded history. But to Judge Vaugh, "[t]he evidence at trial shows that gays and lesbians experience discrimination based on unfounded stereotypes…" Here the Judge is confusing the constitutionally protected right of people to be homosexual, with something else. Proposition 8 does not take rights away from homosexuals. Nevertheless, the factual arguments in favor of Proposition 8’s rationality, such as the state’s interest in fostering stable families, procreation, and an expanding economy and tax base, are all arguments that go to the fundamental difference between straight and gay sexual orientations. Vaugh rejected all those arguments. Now the proponents of Proposition 8 and its legal guardians will be put in the position in the upper courts of defining exactly why the state of California needs marriage as a traditional institution. I think this is where the case could get some traction, because the arguments for state interest can come off as sanctimonious if not handled properly. Let’s hope the next sets of Judges are indeed, more "rational," and that the lawyers in favor of the law can do the articulation they need to do.
August 5th, 2010 at 12:00 am
Jame,
If you’re going to call Judge Walker by his first name, at least spell it properly. Vaughn, not Vaugh.
August 5th, 2010 at 12:00 am
I was surprised, as well, by the declaration of a fundamental right, accompanied by the inconsistent usage of a rational basis analysis. Back when I was in law school, we were taught that having to litigate under the rational basis test was a kiss of death, because there is almost always some rational basis, related to a legitimate governmental interest, for a government’s imposition of a law. That is why higher levels of scrutiny were invented by courts, and how the whole idea of fundamental rights came into being.
What’s really odd is how this case comes on the heels of the Massachusetts cases, decided by Judge Tauro, where he declared that states have a right under the 10th Amendment to define marriage. I guess, in Judge Walker’s view, that is only true if they do so in a way that comports with the views of the gay lobby.