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Prop 8: They Did What Now?

January 5, 2011

I meant to do a review of the Prop 8 oral argument and I never got to it, which is okay because there were plenty of good commentaries around.  Something strange happened yesterday, and I think many folks who are not already up to speed will have a hard time catching up to what happened and why.  Also, I think so much of the discussion assumes a lot of knowledge, and so it’s hard for readers who have only followed the story at a distance to engage more with it now.  Some folks are not US natives and don’t have a good handle on how the American courts are organized; some folks have a hard time following discussions of law which are technical, and news articles that assume little background knowledge also don’t do much to catch readers up on the story so far.  I’m going to try to make this simple and nontechnical for people with very little understanding of the court system in the US who have not really followed it.  For lawyers up to speed on the case and readers who have followed every twist and turn, this will be oversimplified.  My peers are not the audience for this post.

Prop 8:  How Did We Get Here?

The California Supreme Court said that same sex marriages were valid.  That was based on their reading of the California Constitution, which is separate from the U.S. Constitution.  State supreme courts are generally the final word in interpreting their own state constitutions, as the US Supreme Court is for the US Constitution.

Having lost the battle in the courts, the bigots brought a ballot initiative.  In California, a group of folks who gather petition signatures and jump through some hoops can get a measure on a ballot.  This is common in many states.  In California, that kind of measure can amend the state constitution.  Most states don’t let their constitution be amended by referendum alone, and it is done more in California than elsewhere.

Sadly, in the worst piece of news on an otherwise positive election night, in November 2008, the bigots squeaked by with a bare majority.  The California Supreme Court could interpret the state Constitution, but the voters could change it, and they amended it to add discrimination into the fabric of California state law.  There was a state court challenge to that, but it failed.

Making a Federal Case Out Of It

The change to the California Constitution closed off the state law routes to justice.  Neither the legislature nor the courts could overturn the new “queers are not equal” provision.  But there remained one check on the voters of California: the US Constitution.  In the US, states can grant citizens more rights, but there is a floor of rights that the state can’t go below.  If (and only if) Prop 8 violated the rights of Californians under the US Constitution, the US Courts should step in.

There are major problems with that approach, which all boil down to two things:  federal law is less friendly than California law to GLB rights, and the federal courts — especially the Supreme Court — suffers from a core of ideological conservatives packed in for their right wing nuttiness for thirty years. 

On the nine member US Supreme Court, there are four certain votes against same sex marriage — all of them, not incidentally, traditionalist Catholic social conservatives:  Clarence Thomas, Antonin Scalia, John Roberts and Samuel Alito.   Let’s assume that the centrist and socially liberal “liberal bloc” is a sure four votes for marriage equality:  Elena Kagan, Ruth Bader Ginsburg, Sonia Sotomayor, and Stephen Breyer.  That leaves one swing vote, sure to produce a 5-4 decision:  Anthony Kennedy.  Kennedy is a conservative, but has authored two of the most important pro-GLB opinions ever, Romer v. Evans and Lawrence v. Texas.  Basically, all this is up to Kennedy.

Two intrepid lawyers decided to take the case to federal court.  David Boies, who runs a litigation boutique called Boies, Schiller & Flexner, was Al Gore’s lawyer in the 2000 recount litigation.  We could argue who’s greatest at what forever, but he’s really good, and he has a lot of experience in appellate litigation.  His opponent in the recount case, Ted Olson, agreed to work with him.  Olson is a lifelong conservative, but he believes that antigay conservatives have essentially put personal moral views above conservative principles of how government should work.  Having Olson on the side of marriage equality adds a certain unquantifiable factor to the equality arguments — plus, he’s a terrific lawyer.  He may be the perfect lawyer to present this to Kennedy, who needs to be convinced that marriage equality will, in the eyes of history, be seen as the proper principled conservative position.

So they brought the case and took it to trial.  But the story off who they went to trial against colors everything than happened since.

Will The Real Opponent Stand Up And Be Counted?

When Boies and Olson brought the case, it was against the Governor in his capacity as the head of the California government.  That’s why the case is called Perry v. Schwarzenegger:  Perry is Boies and Olson’s client, a member of a same sex couple who wants equal marriage rights, and Schwarzenegger is the head of the government body that says she can’t have it.  So it is the State’s job to defend the case, and Prop 8.  But the Governor said, “fuck that.”  (Maybe that’s not an exact quote, though I suspect behind closed doors, it was.)  If the Governor won’t defend the case, it’s the Attorney General’s job, and at the time, that was now-Governor Jerry Brown.  He, too, said “fuck that.” 

So if the government wouldn’t defend itself in court, what happens?  In California, this has happened before with these referenda, and the proponents of the ballot initiative get to do it.  This turned out to be a great result, because they are capable only of inciting irrational prejudice, not actually marshalling any facts in support of arguments, which is a good way to lose a case in court.

The Trial

In litigation on the national stage where the issues are big and the lawyers often are good and have resources and support, it’s rare to see a jaw-dropping slaughter in litigation.  The trial was a jaw-dropping slaughter.  The plaintiffs, the pro-quality forces of Boies and Olson and their clients, put on lots of evidence.  I won’t recap the whole thing.  The bigots, though, didn’t really have any.  They first tried to get the cameras out of the courtroom — it turns out that many of their witnesses didn’t want to give opinions in court if the whole world would see and they’d have to live with the bald-faced stupidity of the anti-equality arguments for the rest of their careers — either that, of so much of what they actually said helped the plaintiffs that the defendants didn’t date let Boies and Olson take shots at them live on the witness stand.  Either way, when they lost the motion to get rid of the cameras, the defendants decided to put on hardly any case at all. 

When people think of a trial in America, they think of criminal jury trials like on Law & Order or 12 Angry Men, but some cases – including this one – are “bench trials.”  They are tried to a judge, and the judge is the finder of fact.  The judge in this trial was a guy named Vaughn Walker.  Walker had a reputation before the trial.  His reputation was for being really conservative, really independent and a total maverick, often making rulings based on reasoning that nobody else agreed with.  He wasn’t afraid to be the only District Court judge in the country to take a certain position on a question of law.  Strangely, after this trial, he got a reputation as a liberal gay activist.  I don’t know him personally and I don’t know his sexual orientation, but he’s no liberal, and “activist” is a meaningless word people use to denote a judge whose decisions they don’t like.

Walker is a take-no-shit type.  The defendants put up only two witnesses, both purported experts, and experts have to pass muster with the judge based on their expertise, the methods and data used in their work, etc.  In a bench trial, the judge does not have to worry about shielding the jury from hearing inadmissible evidence, so he didn’t have to decide whether the experts met the standard before he let them testify, but when the dust settled what he saw was clear.  He basically said that both their experts were clowns whose data and methods deserved all the respect and seriousness generally accorded to the squirting lapel carnation and the banana cream pie in the face. 

In a bench trial, judges don’t issue verdicts, they issue findings of fact and conclusions of law.  Judge Walker faced a trial record where the plaintiffs had put in a ton of evidence supporting findings that Prop 8 discriminated and that it lacked any rational basis, and the defendants offered nothing worth a warm cup of spit to refute that evidence.  So he issued ringing findings in favor of equality (I edited them to bite-sized pieces here), and then applied those facts to the law and decided that Prop 8 violated the US Constitution.

The Appeal

The defendants appealed, and therein lies the first problem, because basically, the Ninth Circuit Court of Appeals’ first question was, “who the hell are you?”

But I’m moving too fast.  For the really nontechnical readers, the US courts are organized like this:  there are U.S. District Courts; they do the pretrial work and the trials.  The US District Judges are lifetime appointees by the President and they need Senate approval.  That’s Vaughn Walker’s job.  Then there’s the Circuit Courts of Appeals.  They used to actually ride a circuit, hence the name.  They don’t ride anymore, but they are still called Circuit Courts.  There are eleven, covering different regions.  Newspaper coverage, which always sucks, usually just identifies the city they sit in, and often omit the circuit number.  There are eleven numbered circuits plus DC and Federal, for a total of 13.  California and the whole West Coast is in the 9th, which is very large and gets a lot of traffic.  (The East Coast is more broken up, with for example several New England states in the 1st, New York and the rest of New England in the 2nd, and Pennsylvania and New Jersey in the 3rd.  There have been proposals to break up the 9th.)  The Circuit Courts hear appeals from the District Courts, and what they say is the law for the whole circuit, binding on every district court in it.  They hear cases in three-judge panels.  For a very few cases, they’ll grant “en banc” review where all the judges in the circuit consider a case.  The whole circuit, sitting en banc, can reverse the three-judge panel.  Finally, the Supreme Court hears well under a hundred cases a year, and what they say is binding on the entire country.

So when a defendant loses and they think the judge made an error, they can appeal … usually.  They have to have standing, which is almost never a problem once they get that far, and this is where yesterday’s wierdness comes in.

What’s This I’m Standing On?

Standing means it’s your fucking problem, not somebody else’s.  The US Constitution says that federal courts can’t hear hypothetical questions, they can only hear actual cases, between actual people with an actual stake in it.  Being the person with the actual stake in it is called “standing.”  Say your grandmother got run over by a reindeer and you sue Santa (it’s a diversity case /total inside joke for the lawyers).  You didn’t get run over, so you probably don’t have standing.  To have standing, your injury can’t be something bad that happened to someone else, only something bad that happened to you, that’s different from a general effect on everyone.  “Reindeer sled drivers shouldn’t run people over” isn’t standing.  That’s whining.  “I loved my grandma” isn’t standing.  Grandma, she has standing.  She has personal injuries and such.  If she was wearing your winter coat and it’s ripped, you have standing as the owner of the coat, but only for the claims related to the coat damage.  If the coat’s not damaged, you’re still out.  Got it?  Actual harm, not whining.

Standing gets thrashed out at the District Court level.  If you can’t sue, you can’t sue at that level, never mind appeal.  And it’s usually the plaintiff’s problem, because the defendant is the one being sued, so they have standing because the plaintiff seeks to take their money and whatnot.  It’s really rare for a party to be permitted to proceed at the District Court level if it’s not clear they have standing, and then fight it out at the appellate level.  But in this case, the people trying (badly) to mount a defense are not the people who got sued — the name on the back side of the “v.” is Schwarzenegger.  He declined to defend.

I won’t go into the internals of the standing argument.  I’ll just say this:  it was detailed enough that the judges on the three judge panel set aside half the time to do just the standing argument.  Here’s the thing:  you know how marriage equality proponents have always said that no straight folks are harmed by marriage equality?  That has the virtue of being true.  The Governor and the state AG have standing.  The lawsuit is trying to tell them how to do their jobs, having a binding effect on them.  They can defend against the lawsuit if they want.  But they bowed out.  The proponents of the referendum, though they want to win, don’t actually get anything tangible or concrete if they win, or lose anything tangible or concrete if they lose. (The warm fuzzy feeling of being better than sodomites doesn’t count.)

So the Ninth Circuit judges asked a lot of tough questions that really came down to one thing on each side.  On the pro-equality side, the argument for any harm is complete bullshit and these people really don’t have any business in court defending the case.  On the defendants’ side, if they don’t have standing then it means the Governor and AG can kill a referendum at the appellate level by refusing to defend it, which is the opposite of the intention of the ballot initiative process.

Punt?  But It’s Only Third Down!

The Ninth Circuit decided that they’re not deciding.  Federal courts are the final word on federal law and the state courts are the final word on state law, and in certain circumstances the federal courts just say to the state’s highest court, “hell if I know, you tell me what your state law is.” 

The Ninth Circuit isn’t punting the equality question.  They’re punting whether they can even hear that.  No standing, no appeal, no decision.  The California Supreme Court will decide whether the defendants have standing.  If so, the Ninth Circuit panel will rule on the underlying question, probably for equality.  If not, the case is over.

What’s Next?

If there is standing, the Ninth Circuit will probably go the right way.  If the proponents decided to cut their losses (they won’t), then the decision would be the law in the Ninth Circuit, the whole West Coast.  That doesn’t automatically mean marriage equality.  The issue is whether the reasons for this referendum meet the “rational basis” test, and theoretically it’s possible for some other state to have a pro-bigot law that does better in this analysis.  Possible, but it ain’t gonna happen, so one by one all the 9th Circuit states would get marriage equality.  The Supreme Court wouldn’t hear it — except that they would, eventually, but I’ll get to that.

If there is no standing, the 9th Circuit says nothing, and Judge Walker’s opinion only goes for this one proposition in California.  The Supreme Court wouldn’t hear it, except that eventually they would.

Everything That Rises Must Converge

The Supreme Court is going to decide this case.  If it stalls in the Ninth Circuit, then inevitably some other circuit will go the other way, creating what lawyers call “a split in the circuits”.  That’s one of the things that tends to make the Supremes take the case, and real world effects and social importance of the topic mean they’re sure to take it.  That means it ends up there one way or another.  There are three factors that change depending on which case and when takes this to the Supreme Court:

(1) the facts.  Since the factual record Judge Walker made is the best record one could seriously imagine and no other trial is likely to go quite so well, this factor militates in favor of rooting for this case to be the one to go up.

(2) the composition of the Court.  If it’s not this case but a later case that goes up, there’s a chance that there will be a retirement from the conservative bloc, either Scalia (in his seventies) or Thomas (who famously hates his job).  I’m not a huge Obama fan, but any conceivable Obama nominee is a better vote for marriage equality than any of the four horsemen of the Federalist Society.

(3) the political climate.  The Supreme Court is not an elected body, but it’s a political body to be sure.  They look around.  If we’re just fighting for Kennedy, he needs to understand that if he goes the wrong way history will count him with the bigots.  Time is likely to only make that clearer.

So that’s how I see it.

(Apologies to Flannery O’Connor for nicking the phrase “everything that rises must converge.”)

11 Comments leave one →
  1. January 5, 2011 11:26 am

    O.O Wow, thanks for writing this. I’m a US citizen but I still don’t know much about how the legal process works. You made it simple and entertaining.

  2. January 5, 2011 12:00 pm

    Do we already have a case of conflicting results?

    The District Judge in Boston ruled the Federal Marriage Ban unconstitutional because he asserted that states have the 10th amendment power to define marriage as they see fit. So there is one Federal ruling that a state can define marriage as it sees fit while another Federal ruling (on Prop hate) says that a state does not have the authority to prevent gay people from getting married.

    Personally, I do not understand why that judge did not just use the 14th amendment equal protection clause in both rulings.

    Now, the last I heard the Obama administration was reviewing the rulings. Wouldn’t it be smart of the Obama administration to review the ruling that used the 14th amendment and appeal that ruling on the hopes that they would lose the appeal and allow it to be a circuit wide… and they could keep appealing the ruling all the way up to the Supreme Court with the hopes that they will continue to lose their case?

    Now, on Prop 8, I completely agree that anti-gay marriage opponents should typically not have standing in this case. However, doesn’t allowing them to have standing allow the ruling to go up the ladder where we could get nationwide approval on overturning gay marriage? To me, fighting their standing is counterproductive.

    • January 5, 2011 12:16 pm

      Long story short, Daniel, Prop 8 and DOMA are related but the issues are not exactly the same. If Walker’s reasoning is adopted, then Article 3 of Doma is surely toast, but if marriage is up to the states, then DOMA could be overturned without necessarily implying that the states must extend marriage rights equally.

  3. January 5, 2011 2:05 pm

    Despite knowing a lot of this- I still found it really edifying and fun to read. I really like this summary and think everyone should read it.

    I don’t think Scalia will quit any time soon though- the man seems like the type to wait an extra ten seconds in front of you at a stoplight just because he didn’t like your bumper sticker.

    I hope Thomas does resign though- for his sake as well as everyone else’s. The man seems tremendously undamnhappy.

  4. Heather permalink
    January 5, 2011 2:48 pm

    I really appreciate the summary, it’s easy to get lost in the multitude of arguments and courts and changes. Thanks for posting.

  5. MandaK permalink
    January 5, 2011 4:09 pm

    Walker is openly gay.

    The Prop H8te side wrote a lot about how his sexuality would make him biased toward theri case. However, he’s also known for representing the US Olympic Committe when they sued the Gay Olympics to end the use of “Olympics ” in their name. (The IOC has a habit of being very protective of their name and reputation.)

    • January 5, 2011 5:05 pm

      No, he’s widely reported to be gay. Neal Patrick Harris is openly gay. There’s a difference.

      I addressed the bias argument, which is total bullshit, here.

  6. January 5, 2011 7:06 pm


    Wow – quite an impressive piece on the story of Proposition 8. I put the whole verdict that Judge Walker wrote in my blog. Yours went further, explaining to all of us what’s next with Prop 8. Thank you.

    I would appreciate it if you read my blog, The blog is a virtual compendium of articles from newspapers, newsweeklies, and magazines, both popular and scholarly. The articles have a viewpoint toward transgender / transsexual news. If you like it, please put
    “Emily’s virtual rocket “under the title commonly called
    “Blogroll”. Thank you so much!



  7. justducky permalink
    January 9, 2011 7:57 am

    Thank you for summing this up so nicely. I’ve been watching, knowing that the 9th circuit court decisions kind of affect me (I’m in Oregon), but I haven’t really understood what the hell is going on, or why the prop 8 bullshit is still an issue.

    Gods, get over it people! What the hell is so wrong with everyone having equal rights?

  8. Heather permalink
    January 10, 2011 6:50 pm

    Thanks for the crystal clear summary. Even as a lawyer type, it was very helpful to me. I think your ending analysis is spot on, particularly the point about Kennedy. The clearer it becomes to that man that a positive legacy depends on a decision for equality, the better. Even just a few years might make a difference. That said, it really is hard to imagine a better record for the Court to consider. There’s hardly anything in it that could conceivably be used to justify the result we know Scalia and company want.

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