Prop. 8 Goes Down. . .

Unless you are far from the internets, you know by now that Judge Vaughn Walker of the U.S. District Court for the Northern District of California has ruled that Prop. 8 is unconstitutional.  Specifically, the Court finds no rational basis to deny LGBT couples the right to marry.  As a lawyer with a civil rights background, here are a few points I'd like to highlight:

1) The Findings of Fact are Significant

Typically, in a case like this, the legal decision overturning or affirming a statute is done early on in the litigation process.  The Plaintiff files his or her complaint, the Defendant files an answer, some investigation is done, and the parties and the Court more or less agree to what the facts are.  From those facts, the Court makes its decision.  Then upon review, the appellate court is able to review the same facts and determine if the trial court made the right decision.  Decisions of that nature get overturned all the time.

Here, though, the legal decision comes after a trial on merits - at the end of the litigation.  Because the parties did not request a jury trial, the Judge was tasked with making findings of fact.  Now, this is significant because appellate courts don't usually overturn findings of fact, and they particularly don't do so when the trial court makes determinations of credibility.  That's because the trial court Judge is the one who saw the witnesses testify, and saw their body language during the proceeding. So, any determination of fact on the basis of credibility is basically bulletproof.

The only way the appellate courts can overturn a finding of fact is when they determine the factfinder (Judge Walker in this case) abused his discretion, and that no reasonable person could make that finding based upon the evidence presented.  Um, that's not happening.  Like ever.

2) The Scope of the Decision is Huge

Okay, this decision relates to California, and only California.  It is fact-based, and strictly tied to California.  However, the path of attack for anyone who wants to overturn a same-sex marriage ban is clear - go for the facts.  Indeed, when given the opportunity to present a multitude of witnesses to present their case, Prop. 8's proponents presented an expert on ballot initiatives and a self-described "expert" on homosexuality who the Judge found to be completely full of shit.   So, I have the feeling that the opponents of same-sex marriage don't have a lot in the tank, evidence wise.  The lesson here is take the case all the way to trial.

More importantly, the Court held that there was no rational basis for banning gay marriage.  Now, in civil rights litigation, the rational basis test is the easiest test a jurisdiction must pass to do whatever.  So, if the City of San Diego passed an ordinance prohibiting people with red hair from being out during daylight hours, it would be challenged under the rational basis test.  And the City would probably win because people with red hair are more likely to get skin cancer, and that would be bad for the tourism business, etc.  In other words, a government has to work pretty hard to fail the rational basis test.  In fact, even if a government had a discriminatory motive, if it can come up with a reason after the fact, that's considered a rational basis.  For the past seventy years of American civil rights jurisprudence, the words "rational basis" were always coupled with cases against the Plaintiff.

So, when the Court finds no rational basis, its using the absolute lowest standard possible.  But the Court then explains that sexual orientation discrimination is equivalent to gender discrimination, which has a higher standard of review.  To get overturned, the 9th Circuit and/or the Supreme Court will have to hold that Judge Walker is incorrect about the standard of review AND that there is evidence of a rational basis.  I don't see the 9th Circuit doing that, and I don't think Justice Kennedy would do that either. 

3) Don't Let the Judge Sexual Orientation Fool You

Upon hearing that Judge Walker is openly gay, you might be persuaded to think that he was inclined to rule in favor of the Plaintiffs.  However, Judge Walker was nominated to the bench by Ronald Reagan, was blocked by Democrats, in part for being anti-gay, was renominated by George H.W. Bush, and has built a reputation of being one of the most conservative judges in the State of California.   My boss was stunned to hear that Judge Walker came down with this decision - absolutely stunned.

So, all in all, this is an amazing decision.