Federal judge Vaughn Walker overturned California's Proposition 8 yesterday. The 2008 ballot initiative had banned LGBT marriage. Judge Walker's ruling was a tour de force in how to tip sacred cows. He found the proponents' primary witness unreliable as a question of fact, and and that Prop 8 had no rational basis as law.
More below the fold....
Sacred Cow Tipping, Part I - "No rational basis" for Prop 8
This week Morning Feature considers sacred cows offered by the Tea Party GOP in every election cycle, wedge issues they use to arouse their base and demonize their opponents. Today we review Judge Vaughn Walker's decision overturning California's Proposition 8, which had banned LGBT marriage since 2008. Tomorrow we look at Tea Party GOP leaders' statements against birthright citizenship, a position so absurd even Lou Dobbs disagrees. Saturday we conclude by asking if their sacred cows are running out of political milk.
Disclaimer: I do not endorse or approve of actual cow tipping, which is an urban (well, rural) legend. Neither do I endorse or criticize the Hindu reverence for cows. I'm using "sacred cow" as a metaphor. (Trans: "So there!")
As a matter of fact....
The lawyers handling the appeal for the Prop 8 supporters will have a rocky road to travel with Judge Vaughn Walker's ruling. Appeals courts do not call witnesses or hear testimony. Unless the trial court's findings of fact lack any credible basis in the evidence, the appeals court must defer to the trial court on findings of fact. Judge Walker's findings of fact were conclusive, and well supported by the evidence. In particular, Judge Walker found that the Prop 8 supporters' primary expert witness - David Blankenhorn, founder of the Institute for American Values - was "not reliable."
Most of the Prop 8 supporters' other expert witnesses refused to testify, claiming they feared public reaction if their testimony were broadcast. Yet the court broadcast was stopped before the Prop 8 supporters made their case, and those witnesses still were not called. Perhaps they feared cross examination by the plaintiff's attorneys, former U.S. Solicitor General Ted Olson and progressive legal eagle David Boies, who were on opposite sides of Bush v. Gore in 2000.
That left only Blankenhorn, whose "expert" testimony that LGBT couples were less effective parents and that LGBT marriage would "deinstitutionalize" straight marriage was - in Judge Walker finding - merely ipse dixit ("he himself said it" or, colloquially, "because I say so"). Judge Walker found that studies showing children of married couples thrive better than children of divorce did not ask or answer whether the children of LGBT couples thrive as well as the children of straight couples. As for the "deinstitutionalization" of marriage, Blankenhorn offered only a "thought experiment" where he asked members of his think tank to imagine the negative consequences of LGBT marriage.
Instead, Judge Walker relied on testimony by the plaintiffs' experts: historians, psychologists, and sociologists. They cited peer-reviewed academic journal articles showing how the legal structure of marriage has changed throughout U.S. history, that children of LGBT couples thrived as well as did children of straight couples, and that Massachusetts' recognition of LGBT marriage had not affected the frequency, happiness, or duration of straight marriages. In a shocking display of judicial activism, Judge Walker decided facts trumped think tank imaginings.
"Without a legitimate (much less [a] compelling) reason."
Based on these findings of fact, Judge Walker drew conclusions of law. He found that Proposition 8 violated the Equal Protection Clause of the Fourteenth Amendment, by denying LGBTs a fundamental right "without a legitimate (much less [a] compelling) reason." Here the decision is both a bit tricky and very well-written.
Judge Walker found that Proposition 8 denied a fundamental right on the basis of the sex of the two partners. The proper legal standard might arguably have been strict scrutiny. [Note: Thanks to shannika for correcting my previous misstatement.] Under that standard, the state must show that a law is "narrowly tailored" to serve a "compelling interest." It is the most restrictive standard of review; in law school terms, a test the state should fail.
But lest a higher court - yes, Justices Roberts, Alito, Scalia, and Thomas, that means you - disagree with that standard, Judge Walker applied the rational basis test. There the state need only show that a law is "reasonably related" to a "legitimate interest." It is the most permissive standard of review; in law school terms, a test the state should pass.
Judge Walker found Prop 8 failed even that. The proponents offered several claimed interests: "preserving marriage as a union between a man and a woman and excluding any other relationship" (We think that's icky!), "proceeding with caution when implementing social change" (Don't outlaw my bigotry too quickly!), "promoting opposite-sex over same-sex parenting" (What about the children?), "protecting the freedom of those who oppose same-sex marriage" (What about my right to be a bigot?), "treating same-sex couples differently from opposite-sex couples" (The state should recognize differences!), and the catch-all "any other conceivable legitimate interest identified by the parties, amici, or the court at any stage of the proceedings" (Any other bigots got any ideas?).
Judge Walker found only the third (parenting) a legitimate interest, but there was no evidence that LGBT couples were less effective parents. Thus Prop 8 failed even the rational basis test - a test the state should pass - and could possibly survive the strict scrutiny it rightly should face.
Nite nite, sacred cow.
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Happy Thursday!
Crossposted from Blogistan Polytechnic Institute (BPICampus.com)