By now, most of my friends know that a judge in struck down California’s Proposition 8. Being the obsessive person that I am, I downloaded a copy of Vaughn Walker’s decision on Proposition 8. Here’s a couple of thoughts I have on it. Keep in mind that I am not a lawyer, so my speculation is probably suspect.
First, he laid out a lot of facts in the record to support his conclusions. And his legal reasoning based on those facts is detailed and methodical. The analyses I’ve seen online say that going to make it harder to overturn.
However, the Proposition 8 proponents were fairly negligent in putting on their case. They called two experts who were not qualified. I wonder how much precedential weight other courts will give the case when people challenge similar laws in other states because of this. Will they allow bigots in other states to put on a better case or will they give weight to the essentially unopposed facts and conclusions from this decision? If this were a death penalty case, the proponents would have a great case for ineffective assistance of counsel. I personally believe the scientific evidence offered in the case by marriage equality folks is pretty unassailable, but their opponents barely tried.
One of the facts that was a pretty important part of this case was the fact that California does not discriminate based on sexual orientation in adoption and child fostering. With or without Proposition 8, California viewed gay parents as equal to straight parents. That was one of a couple of facts underlying his decision that are specific to California.
That’s important because it totally undercut one of the reasons the Prop 8 proponents gave as a compelling government interest in banning gay marriage. They claimed the state had a compelling government interest to ensure that that children are raised by biological parents of opposite sexes. Since Prop 8 did nothing to change how gay parents would be treated, that could not be a compelling government interest behind Prop 8.
So, that makes me wonder if states that have been more intransigent in their deleterious treatment of homosexuals might have an easier time getting their gay marriage bans upheld. In other words, the might get away with claiming a compelling government interest in ensuring children have biological parents raising them.
Then again, an appeals court might give a fairly broad-based reason for upholding the decision that makes that reasoning moot.
The facts not specific to California could carry over to other cases unless other folks are allowed to put on a case that challenges the
established facts in this case. I’m not really sure if other courts would just assume these facts are uncontroverted, or what. Things like studies that show no difference in child outcomes for gay parents versus straight parents when other family status items like class or cohabitation status are controlled for. Or that studies of gays and lesbians as a group show they do not have political power (used to support the designation of sexual orientation as a suspect class and justify strict scrutiny). At what point in the life of this issue as a legal controversy do those become dicta?
Anyhow, it’s a really good decision. Much better than the Washington State Supreme Court decision on gay marriage a couple of years ago. And I say that not because I like Walker’s conclusion better (though I do), but because it’s much more thoroughly reasoned.
crossposted from King Rat.