1. The High Court Will Have to Weigh In Eventually. Yes, it's true that the Supreme Court is less likely to take the appeal now because the 9th Circuit limited the potential impact of its ruling. The justices can more plausibly say that they let California try to sort things out for itself. But the legal conflict over same-sex marriage is a national issue, and eventually the justices will have to decide: aside from equal protection and due process questions, does the Full, Faith and Credit clause of the Constitution require all states to recognize same-sex marriage so long as one does?
2. The Parade of Horribles Will Continue. Let's say the Supreme Court declines the case. Then what? The legal problems, in California and elsewhere, will only get worse. Same-sex marriages would resume in California. There would be another ballot initiative there that would seek only to prospectively ban same-sex marriages. More states would recognize those marriages while others explicitly blocked them. For all the political action that has occurred on this front, the worst of the legal chaos is still to come.
3. The 'Rational Basis' for Prop 8 Isn't Very Rational. Judge N. Randy Smith's dissent is notable. "Our personal views regarding the political and sociological debate on marriage equality are irrelevant to our task," Judge Smith wrote, before whittling down to an absurd nub the legal standard to be applied to Prop 8. Thus, as his language grew more specious and abstract, the "rational basis" test became the "rational relation to some legitimate end" test, which became the "reasonably conceivable state of facts that could provide a rational basis" test, which became the "have arguable assumptions underlying its plausible rationales" test.
4. The Facts Have Mysteriously Vanished. U.S. District Judge Vaughn Walker, the now-retired Republican appointee who happened to be gay, presided over the trial that resulted in his August 2010 smack-down of Proposition 8. The trial was as unequivocal as any I have ever followed. His factual findings at the conclusion of that trial were devastating to Prop 8's proponents. So what happened to all those facts on appeal? Judge Stephen Reinhardt, who wrote the majority opinion, offered this:
In a thorough opinion in August 2010, the court made eighty findings of fact and adopted he relevant conclusions of law... The only findings to which we give any deferential weight -- those concerning the messages in support of Proposition 8 that Proponents communicated to the voters to encourage their approval of the measure -- are clearly "adjudicatory" facts.... Aside from these findings, the only fact found by the district court that matters to our analysis is that "domestic partnerships lack the social meaning associated with marriage" -- that the difference between the designation of 'marriage' and the designation of 'domestic partnership' is meaningful.The only thing worse than being a federal appellate court judge is being a federal trial judge.
5. The Best Case for Prop 8 Is a Terrible One. Here's why I think the legal fight is already over. Judge Smith, making his best argument for Prop 8, wrote this:
Here, the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting. The assumptions underlying these rationales may be erroneous, but the very fact that they are 'arguable' is sufficient, on rational basis review.This passage came right before the one in which Judge Smith wrote that the courts should uphold popular but discriminatory measures. He wrote:
However, Supreme Court precedent does not suggest that a measure is invalid under rational basis review simply because the means by which its purpose is accomplished rest on such biases. Rather, precedent indicates that such biases invalidate a measure if they are the only conceivable ends for the measure (emphasis in original).This "prejudice is as prejudice does" argument is a terrible one -- and quite unlikely to impress Justice Anthony Kennedy, who is going to determine all this sooner or later.
6. Judge Smith Has a Short Memory. Let's get back to Judge Smith's dissent. Among its other failings, it is a weak, tortuous effort that negates the huge qualitative and quantitative difference in evidence presented at trial. Of Judge Walker's 80 findings of fact, most of which undermined the legal the positions of Prop 8's supporters, Judge Smith wrote: "After review, both sides offer evidence in support of their views..." Both sides? I remember Charles Cooper (right), Prop 8's trial attorney, telling Judge Walker that the facts of the case didn't matter. Who knew that he'd be right?
7. The Political Spin Will Center on "Judicial Activism.'" The 9th Circuit rested mightily upon the California Supreme Court's 2004 decisions, which first recognized same-sex marriage in the state. And the concept behind the majority's conclusion -- that married, same-sex couples in California had a vested constitutional right to those marriages because of those 2004 court decisions -- is based upon the premise that the 2004 state court decisions ("judicial activism" to conservatives) trumped Prop 8's majority vote. That's the political angle you'll be hearing about from Newt and Co.
8. Judge Walker Is Affirmed. To their eternal credit, all three 9th Circuit judges spent little time dispatching the argument that served both sides of this battle: the question of Judge Walker's sexuality. To Prop 8's supporters, Judge Walker's sexual orientation made him biased and thus worthy of being slandered; in their narrative, he became the reason they lost. To proponents of same-sex marriage, that argument itself highlighted the prejudices at play. But if same-sex marriage foes judge Judge Walker harshly, yesterday's decision is a hint that history will be far, far kinder.