<-Best Buy Is Selling People . . . . It's Selling People! |Main|The House East->

Perry v. Schwarzenegger

August 4, 2010 11:00 PM

he case is available in .pdf form here.

I just finished reading this case, and I have two observations. First, I will never, ever be able to spell "Schwarzenegger" from memory, and I think it's hilarious that the Terminator's name will be on what will almost certainly be a hugely important Supreme Court case for years and years.

Second, this is one of the most interesting District Court decisions I've read in a long time. Even setting aside the highly controversial nature of the case, there are so many strange and interesting things about it. The procedural history is worthy of a law review article itself. It involves a question of how to weigh direct democracy and protection of minority groups. The government refused to protect the amendment, so random people had to step in. Oh, and the guy who decided the case--Judge Vaughn R. Walker--is one of a tiny handful of openly gay judges in the country.

But, of course, the most interesting things about the case are the issues and the outcome. I think Judge Walker got the result right, but I think that he may have packaged the case in a way that will be difficult if not impossible for higher courts to swallow. Reading the decision makes it seem that the pro-Prop-8 people--that is, those who supported the ban on gay marriage--were borderline incompetent in the presentation of their case. I frankly have a hard time believing that the attorneys for that side were as bad as the decision makes it seem. I think that this is one thing that makes the decision an easy target for people who would want to make the case the result of judicial activism rather than a reasoned application of existing law.

Another problem, as I see it, is that Judge Vaughn spends nearly as much time discrediting the Prop 8 proponents' expert witnesses as he does actually applying the law to the facts. Judge Vaughn decides to completely disregard the testimony of David Blankenhorn. It appears to have been the correct decision given that Blankenhorn doesn't seem to have done more than recite--incorrectly, apparently--the results of various studies he played no part in. That's all fine, but I question whether it was necessary to spend so much time taking him and the other expert witness to task. I suppose Judge Vaughn felt it was necessary to make the rationale for his decision abundantly clear, but I think it makes it easier for people to portray him as a pro-gay-agenda zealot.

The judge makes several findings of fact. Essentially, he concludes that gays and lesbians have been severely discriminated against, that denying them the right to marry hurts them and society in various ways, and that sexual orientation has no impact on a person's worth or ability to be a good person or a good parent.

The plaintiffs apparently argued that Prop 8 violated their rights under both the Due Process and Equal Protection clauses of the Fourteenth Amendment. Judge Vaughn rules that they win under each provision.

In his analysis of the due-process issue, Judge Vaughn starts from the premise that marriage is a fundamental right. He recognizes that the important question for these plaintiffs is whether the right to marry someone of the same sex is a new right or simply a necessary extension of the already-recognized right to marriage. The judge then makes what I believe to be the strongest argument in favor of protecting gay marriage by analogizing the current situation to the one presented in Loving v. Virginia.

One of the arguments advanced by opponents of interracial marriage was that black people were not being denied a right white people had because, while they couldn't marry a white person, they could still marry someone. It just had to be someone of the right skin color. The Supreme Court rejected that argument, holding that the whole point of protecting the right to marry is the right to choose who you marry. If you're in love with a white man, it doesn't do you any good to be told that you can marry any black man you want.

Opponents of gay marriage often argue that to allow gay marriage is to redefine marriage. Judge Vaughn--correctly, in my view--disagrees and points out that the whole point of the fundamental right to marriage is the right to choose who you marry. According to his decision, denying a gay man the right to marry the man he loves is a violation of that right that cannot be undone simply by saying "But, hey, you can marry any woman you like."

Judge Vaughn goes on to strike down the gay-marriage ban on Equal Protection grounds, too. While the judge applies a rational basis analysis, he makes it clear that he thinks that strict scrutiny should apply. The judge rejects in turn every proposed rational basis for the ban, pointing out that some of them are absolutely absurd and even helpful to the plaintiffs' position. Judging by the decision, Prop-8 supporters' justifications were pretty weak. They assert, for example, that banning gay marriage would "increase[] 'the probability that each child will be raised by both a father and a mother.'" Although the ban's proponents apparently attempted to show that having a father and mother was preferable to, for example, having two fathers, the court found that the evidence overwhelmingly showed that this was not the case. More importantly, the ban's proponents apparently made no attempt to demonstrate how keeping gay people from marrying each other would increase the number of heterosexual married couples. It's as if the ban's proponents think people will just give up on being gay.

In any event, I think that most of the analysis is good, if a bit short. It'll be interesting to see what higher courts do with the case. It will also be interesting to see how the case is received.

While I think the constitutional questions posed are really interesting, though, I really care about one thing: that whoever finally resolves this issue gets it right.


Leave a comment


Type the characters you see in the picture above.