Everything You Need To Know About The Prop 8 Ruling


Yesterday’s historic decision deeming Proposition 8 unconstitutional and discriminatory was a major victory for equal rights for gays and lesbians. Here’s what you need to know about what the decision means, and what’s next.

Perry vs. Schwarzenegger was decided thanks to the unlikely union of Ted Olsen, a former George W. Bush administration solicitor general, and liberal lawyer David Boies (who represented Al Gore in Bush v. Gore). Judge Vaughn Walker, who issued the heroic ruling, was appointed by George H. W. Bush, and happens to be gay. His conclusion? “Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women…is not a proper basis on which to legislate.”

The decision will not immediately go into effect, pending further hearings on a stay, and for now, would only affect California, but as the New York Times noted, “On Wednesday the winds seemed to be at the back of those who feel that marriage is not, as the voters of California and many other states have said, solely the province of a man and a woman.”

Here’s Olsen after the decision:

Gay rights advocates were originally worried about the case, fearing it was too soon to press through federal courts, and arguing that state-by-state legislation and litigation was a better strategy for the broad passage of gay marriage. After the victory presented by Judge Vaughn Walker’s brilliantly sensible decision yesterday, the case will go to appeals courts — and likely all the way to the Supreme Court, where the opinion of Justice Anthony Kennedy is expected to make all the difference.

In a pre-trial hearing last October, the anti-gay rights side proved it had essentially no argument. As The New York Times described it at the time,

The lawyer, Charles J. Cooper, has studied the matter deeply, and his erudite briefs are steeped in history. He cannot have been blindsided by the question Judge Vaughn R. Walker asked him: What would be the harm of permitting gay men and lesbians to marry?
“Your honor, my answer is: I don’t know,” Mr. Cooper said. “I don’t know.”

That essentially defined the rest of the proceedings — the ruling points out that the plaintiffs presented 8 lay witnesses and 9 expert witnesses against Proposition 8, whereas proponents had two expert witnesses who “failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.” Boies and Olsen’s expert witnesses included psychologists, economists, historians, and a “social epidemiologist,” who all helped make the case that marriage has changed and evolved — including by removing strictures on interracial marriage and granting women equal status in marriage — and that banning gay marriage is what has caused actual harm.

It made a difference: in Slate, Dahlia Lithwick points out that yesterday’s decision was based on reason, fact, and evidence:

It’s hard to read Judge Walker’s opinion without sensing that what really won out today was science, methodology, and hard work. Had the proponents of Prop 8 made even a minimal effort to put on a case, to track down real experts, to do more than try to assert their way to legal victory, this would have been a closer case. But faced with one team that mounted a serious effort and another team that did little more than fire up their big, gay boogeyman screensaver for two straight weeks, it wasn’t much of a fight.

Maybe it’s about more than just a lazy opposition — the assertion that gay marriage would cause tangible harm to the institution of marriage, among others, just isn’t supported by the facts. As Walker himself wrote in the decision of one of the anti-gay-marriage witnesses, David Blankenhorn: “His opinion lacks reliability, as there is simply too great an analytical gap between the data and the opinion Blankenhorn proffered.” Or the data that exists. You can just feel the contempt when the decision describes the other expert witness proponents’ lay witness’s testimony: “Tam identified ‘the Internet’ as the source of information connecting same-sex marriage to polygamy and incest.” We’re fans of “the Internet,” but… no dice.

All of this appears to have been quite strategic. Legal experts told The Times that this emphasis on fact will make it hard for higher courts to disagree with Walker: “While appeals courts often overturn lower-court judges on their findings of law — such as the proper level of scrutiny to apply to Proposition 8 — findings of fact are traditionally given greater deference.”

Of course, gay rights opponents are gearing up for a fight, issuing a series of condemnatory statements about activist judges overturning the will of the people. Our favorite: the Family Research Council (a fan only of certain families) calling the decision, if upheld in the Supreme Court,

“the ‘Roe v. Wade’ of same-sex ‘marriage,’ overturning the marriage laws of 45 states. As with abortion, the Supreme Court’s involvement would only make the issue more volatile. It’s time for the far Left to stop insisting that judges redefine our most fundamental social institution and using liberal courts to obtain a political goal they cannot obtain at the ballot box…The fact that homosexuals prefer not to enter into marriages as historically defined does not give them a right to change the definition of what a ‘marriage’ is.”

Looking ahead, Andrew Sullivan writes:

I am increasingly confident that when this case eventually gets to the Supreme Court, the logic of equality will win. Once you have conceded that gay people are a class, and that their sexual orientation is integral to their lives and immutable, and that they are not defined by sex acts that can be performed by gays and straights alike, then the ban on marriage equality is left without anything but an amorphous claim to heterosexual supremacy – or a judicially irrelevant appeal to simple custom (already invalid in five states and many countries) – to support it.
…What this comes down to is whether gay people are inferior to straight people, and whether their citizenship is thereby to be deemed inferior as well. The entire weight of the American tradition stands athwart the imposition of a second-class group of people and declares: No!

Unfortunately, the entire weight of the Democratic party is unlikely to embrace it as openly. The White House issued a tepid statement — “The President has spoken out in opposition to Proposition 8 because it is divisive and discriminatory. He will continue to promote equality for LGBT Americans.” Five Thirty Eight’s Nate Silver pointed out that “In 30 years time, the fact that the Barack Obama was opposed to gay marriage is going to look really silly.” This year, he added,

The issue is certainly unlikely to be pushed into the spotlight by Democrats. Most polls still show at least a plurality of Americans opposed to gay marriage, although the margin is narrowing. More important, perhaps, is that the fact that President Obama is at least nominally opposed to gay marriage… given the White House’s sluggish pace in working to overturn Don’t Ask Don’t Tell, a doctrine which is overwhelmingly unpopular, we are exceptionally unlikely to see a change of attitude on a related issue where the polling still cuts against them.

The battle clearly isn’t anywhere close to being over — in the courts, in public opinion, and among elected officials in need of some moral courage.

Court Rejects Same-Sex Marriage Ban in California [NYT]
A Brilliant Ruling [Slate]
Prop 8 Reax [Daily Dish]
Will Gay Marriage Yet Again Become A Campaign Issue? [Five Thirty Eight]
FRC Criticizes Court Ruling, Warns Against The Roe V. Wade Of Same Sex Marriage [FRC]
The Scalia-Walker Convergence [Daily Dish]
Prop 8 Overturned: The Facts, Not The Law Matter [Marc Ambinder/Atlantic]
Text Of The Decision [Good As You]
In Same-Sex Ruling, an Eye on the Supreme Court [NYT]

Related: In Battle Over Gay Marriage, Timing Is Key [NYT]

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