The Prop 8 Decision: Having It Both Ways

Judge Vaughan Walker, the chief district judge of the US District Court for the Northern District of California, handed down his post-trial decision yesterday in Perry v. Schwarzenegger, holding that Proposition 8 – the referendum approved by California voters in 2008, amending the California Constitution to define marriage as between a man and a woman and thus deny recognition to same-sex “marriages” – violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the federal Constitution. In a larger sense, the lawsuit, seeking to overturn judicially a status quo that has existed for essentially all of human history and was only recently reaffirmed by the California electorate, is yet more proof that it’s not conservatives who are on the offensive in the ‘culture wars’. But even focusing on the judicial process, and setting to one side its reliance on the oxymoronic concept of “substantive due process,” Judge Walker’s decision is fundamentally flawed in three ways, two of which represent failures of reasoning and the third of which highlights the structural problem with substituting judicial “factfinding” for the collected judgment of a democratic electorate. Specifically:


(1) Judge Walker’s decision is internally, logically inconsistent in its treatment of the worth of cultural values, arguing that morality and tradition are not a valid basis for supporting the legal status of marriage, but at the same time finding a Constitutional violation from the fact that the same-sex alternative (domestic partnerships) lacks the social and cultural status that marriage has…and which it derives from its grounding in longstanding moral, cultural and religious traditions;

(2) Judge Walker’s decision ignores the compelling state interest in promoting childbearing and childrearing within the context of opposite-sex marriage, and the absence of such an interest in same-sex marriage, specifically ignoring the fact that heterosexual relationships produce many more children than homosexual relationships; and

(3) the whole idea of leaving core judgments about a society’s most central and longstanding values to a single judge rather than respect the collective wisdom of a diverse electorate is fundamentally anti-democratic.

Let’s review these one at a time.

Refresher: The Legal Posture

To recap for the non-lawyers or those who haven’t followed the case, Judge Walker conducted a trial and issued a 138-page decision that included both “Findings of Fact,” i.e., his conclusions of what the evidence showed, and “Conclusions of Law,” i.e., the legal impact of those facts under federal law. The decision can be appealed to the US Court of Appeals for the Ninth Circuit, and from there to the US Supreme Court. Because Proposition 8 amended the California Constitution, there was no opportunity to resolve the case under state law; either Proposition 8 violates federal law, or it is valid. California has a fairly broad-reaching “domestic partnership” law that gives many of the legal benefits of marriage to same-sex couples, so the plaintiffs in Perry had to argue mainly that not using the term “marriage” was itself improper discrimination banned by the Fourteenth Amendment.

Under the Supreme Court’s controversial 1996 decision in Romer v Evans, authored by Justice Kennedy, current federal law subjects a state constitutional amendment passed by referendum to the same three-tiered structure of Fourteenth Amendment review as any other state statute. The highest tier of that review, “strict scrutiny,” applies when a state draws distinctions on the basis of some suspect classification such as race, or burdens a right deemed “fundamental” by the courts; the lowest level, generally applied to most types of legislation, is “rational basis” review, which at least in theory is supposed to uphold any law that has any arguably sane basis whatsoever. The Supreme Court has never held that distinctions on the basis of sexual orientation trigger strict scrutiny, and thus while Judge Walker tiptoes around the concept, his decision is principally aimed at arguing that putting a separate and distinct value on traditional, opposite-sex marriage is insane and irrational. As Judge Walker properly stated the standard:

The court defers to legislative (or in this case, popular) judgment if there is at least a debatable question whether the underlying basis for the classification is rational…Most laws subject to rational basis easily survive equal protection review, because a legitimate reason can nearly always be found for treating different groups in an unequal manner.


(p. 118, 119).

(1) What Value Culture?

Judge Walker conceded the obvious: “The evidence at trial shows that marriage in the United States traditionally has not been open to same-sex couples.” (p.112). He nonetheless insisted that Prop 8 infringed the “fundamental right to marry,” (p. 117) claiming that “Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as ‘the right to same-sex marriage’ would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy – namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.” (p. 114). This is classic question-begging, as the entire point of Prop 8 is to define what is and is not marriage, and he’s just admitted that same-sex relationships have traditionally not been defined as marriage.

Seeking to characterize a rule that has existed throughout history as insane, Judge Walker first engaged in a sort of pop evolutionary history:

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry…Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.

(p112) But to open a quarrel with the past, in Churchill’s turn of phrase, is not sufficient; given the deep roots of traditional marriage in nearly every aspect of our society and history, Judge Walker must find a way to categorically exclude those considerations:

Tradition alone…cannot form a rational basis for a law….The “ancient lineage” of a classification does not make it rational….Rather, the state must have an interest apart from the fact of the tradition itself….

Proponents’ argument that tradition prefers opposite-sex couples to same-sex couples equates to the notion that opposite-sex relationships are simply better than same-sex relationships. Tradition alone cannot legitimate this purported interest….

The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples.

What is left is evidence that Proposition 8 enacts a moral view that there is something “wrong” with same-sex couples….The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples….

Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.

(p. 124-26, 130, 135)

As I have explained before, the reason for valuing tradition is the same as the reason for valuing democracy, free markets and the rule of written law: because each embodies the experience and wisdom of the largest number of people in making decisions, and learning the consequences. Tradition is not stasis; it is experimentation verified or abandoned through trial and error But what is striking about Judge Walker’s opinion is that while he rejects utterly the value of cultural and moral tradition, his entire basis for finding a constitutional injury in the first place is the very fact of the cultural weight that experience, tradition and morality have given to marriage. First, from his findings of fact:


52. Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States…

54. The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships…

77. Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.

From this, he concluded:

The evidence shows that domestic partnerships do not fulfill California’s due process obligation to plaintiffs for two reasons. First, domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage…Second, domestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples…

A domestic partnership is not a marriage; while domestic partnerships offer same-sex couples almost all of the rights and responsibilities associated with marriage, the evidence shows that the withholding of the designation “marriage” significantly disadvantages plaintiffs…the record reflects that marriage is a culturally superior status compared to a domestic partnership…California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same sex couples…

[P]roponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.”

(p. 115-16). Suddenly the “social meaning” and “cultural meaning” and “status” of marriage is not irrelevant, but essential. This is what economists call free riding: traditional marriage gains social and cultural significance by long experience and association with moral, religious and cultural norms – and yet it is constitutionally improper to deny the same status to an institution that doesn’t comply with those norms. Judge Walker puts the culture on one side of the scale while lifting it off the other, which may be many things but surely is not equal justice under law. It’s this analysis, not the view of the California electorate, that fails the test of basic rationality.

This analysis also reveals why this is not, as some would have it, a libertarian, live-and-let-live decision at all. No liberty is at stake here, in the sense of preserving some activity from government sanction, and indeed few if any of the rights of property and contract are denied to domestic partners in California. Instead, what the plaintiffs in Perry seek is the government to help them obtain the affirmative social and cultural approval of their neighbors.

(2) Marriage and Children

Judge Walker also found insufficient the entirely rational proposition that society values traditional marriage because of its blindingly obvious relationship with the bearing and begetting of children:

The court asked the parties to identify a difference between heterosexuals and homosexuals that the government might fairly need to take into account when crafting legislation…Proponents pointed only to a difference between samesex couples (who are incapable through sexual intercourse of producing offspring biologically related to both parties) and opposite-sex couples (some of whom are capable through sexual intercourse of producing such offspring)…Proponents did not, however, advance any reason why the government may use sexual orientation as a proxy for fertility or why the government may need to take into account fertility when legislating…No evidence at trial illuminated distinctions among lesbians, gay men and heterosexuals amounting to “real and undeniable differences” that the government might need to take into account in legislating…

Even if California had an interest in preferring opposite-sex parents to same-sex parents – and the evidence plainly shows that California does not – Proposition 8 is not rationally related to that interest, because Proposition 8 does not affect who can or should become a parent under California law…To the extent California has an interest in encouraging sexual activity to occur within marriage (a debatable proposition in light of Lawrence, 539 US at 571) the evidence shows Proposition 8 to be detrimental to that interest. Because of Proposition 8, same-sex couples are not permitted to engage in sexual activity within marriage…Domestic partnerships, in which sexual activity is apparently expected, are separate from marriage and thus codify California’s encouragement of non-marital sexual activity…To the extent proponents seek to encourage a norm that sexual activity occur within marriage to ensure that reproduction occur within stable households, Proposition 8 discourages that norm because it requires some sexual activity and child-bearing and child-rearing to occur outside marriage.


(p. 121-22, 128). The screamingly obvious fact that Judge Walker’s legal analysis ignores is right there at #49 on his list of findings of fact:

49. California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology. Approximately eighteen percent of same-sex couples in California are raising children.

Now, I don’t have the numbers handy here, but I’d bet every penny I have that very significantly more than 18% of opposite-sex married couples, even in California, have children. And if you looked at the numbers, it’s likely the disparity would be even larger if you counted by number of children rather than number of households, as for a variety of reasons (including religious and cultural beliefs and just enjoying the baby-making process), opposite-sex couples are far more likely to have families of three or more children.

Remember that laws routinely pass rational basis review without a 100% fit between means and ends (almost nothing would be left of the New Deal and Great Society otherwise) – the government is very much permitted to draw distinctions based on probabilities and incentives. The mere fact that some same-sex couples bear children and others adopt them, while some opposite-sex couples do neither, doesn’t change the basic fact that opposite-sex relationships are overwhelmingly more likely to produce children.

To use a hypothetical I’ve used before, let’s say that you’re an investor in a new planned community, to be started from scratch in a part of the country that presently has little population. And let’s further suppose that, based on the mix of businesses you are hoping to attract to your planned community, your consultants and investment bankers inform you that the economic assumptions of the project require that a fairly large proportion of the new residents be families with children. And, finally, let’s suppose that you had a finite budget for advertising and sales, and that budget included a deal with an airline to bring in, say, 500 prospective residents at little or no cost to inspect the place. It doesn’t matter what your agenda or your biases are – acting out of pure rational economic self-interest, wouldn’t you very strongly prefer that the 500 seats went to opposite-sex married couples? Aren’t they very obviously the people most likely to produce children in general, and multiple-child families in particular? Is it really so irrational to believe that a set of 250 opposite-sex married couples would, in almost any conceivable circumstance, produce more children than 250 same-sex married couples of the same age and socioeconomic background? If that isn’t a rational conclusion for government to draw, there are precious few of the conclusions supporting any legislation that will withstand scrutiny.

Judge Walker’s “fertility” analysis is off-base in a number of other ways that I explored at much greater length in my 2005 essay on this topic. First, the government absolutely does have an interest in ensuring that there is a next generation; not only does economic growth require a growing population, but the fiscal stability of government becomes ever more dependent on a growing population the more it creates presently unfunded liabilities to future retirees. Anyone vaguely familiar with the position of public pensions in California can tell you why the state will need more taxpayers 25 years from now.


Second, just because Lawrence v. Texas limited the state’s power to prevent some types of sexual activity outside of marriage doesn’t change the fact that the state absolutely has an interest in encouraging sex to occur within marriage, and that interest is vastly greater when it is procreative sex. To be blunt, gay sex does not lead to illegitimacy or abortion – and thus the state’s interest in the subject is less vital.

(3) Here, The People Do Not Rule

The third problem with the Perry decision goes beyond Judge Walker’s analysis, but it starts with the procedural status of the case. As you can see from the preceding discussion, Judge Walker heard evidence and reached conclusions of “fact,” which at least in theory will be given deference on appeal as if he was a jury deciding who killed Nicole Simpson. That’s why getting a sympathetic judge can be so important in a case like this, and naturally these plaintiffs filed this case in a district in which Judge Walker was the chief judge and assigned the case to himself – a different judge or a different district might have meant different “facts.” And his decision is full of sweeping generalizations, both “fact” and inference from fact, that might not be universally uncontroversial:

71. Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted….

Plaintiffs presented evidence at trial sufficient to rebut any claim that marriage for same-sex couples amounts to a sweeping social change…

Indeed, proponents presented no reliable evidence that allowing same-sex couples to marry will have any negative effects on society or on the institution of marriage…

The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.

(p. 125-26, 132) Defenders of Judge Walker’s ruling will undoubtedly argue that these are perfectly reasonable conclusions from the evidence presented in court. And Judge Walker’s factual findings and legal conclusions cast a jaundiced eye on the ‘evidence’ presented during the election campaign:

45. Proponents’ campaign for Proposition 8 assumed voters understood the existence of homosexuals as individuals distinct from heterosexuals…

79. The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from samesex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child…

80. The campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships…

Proponents’ purported rationales are nothing more than post-hoc justifications. While the Equal Protection Clause does not prohibit post-hoc rationales, they must connect to the classification drawn…

(p. 133-34). Just imagine the horror – campaigns that oversimplified the issues and relied on pre-existing assumptions and scare tactics! There oughta be a law!


There is something fundamentally wrong with this process and its repeated application to judicial scrutinty of the views of the voters and their elected representatives. Consider the following passage:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, – That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

“Self-evident”? That would not pass muster under the analysis applied by Judge Walker, given that Thomas Jefferson cited no statistics, no sociological studies compiled by sympathetic scientists. Yet it remains the foundation of the very existence of our Republic. The Founding Fathers sometimes relied (if you have read the Federalist Papers) on concrete if anecdotal examples, but very often the laws and rules set down then as now were based on the common experience and judgment of the people and their leaders. Part of the beauty of democracy, especially in a large and diverse nation, is that the voters never need to say why. And yet this subjection of the judgment of the many to the second-guessing by the ‘expert’ few renders that popular privilege meaningless, and literally excludes common sense from the permissible bases of law.

For all of the supposed commitment of Prop 8’s liberal opponents to diversity and its benefits in making decisions, this judicial approach tramples the rich tapestry of the enormously diverse California electorate. Detailed analyses showed, for example, that Prop 8 drew the support of 49% of white voters, 58% of African-American voters, 59% of Latino voters, 49% of women, 54% of men, 53% of independents and 67% of voters over 65. Every one of those voters entered the voting booth with their own opinions and life experiences that rendered them – with all due respect to Judge Walker – every bit his equal in their ability to decide the value of traditional marriage, the merits of same-sex rationships, the importance of motherhood, and other issues implicated here. In a nation that respected democracy, those votes would count, and the more numerous faction would decide – unless the people had by previous agreement placed the issue beyond elections (as plainly, nobody had reason to think they were doing with regard to the definiton of marriage when they ratified the Fourteenth Amendment in 1868). Instead, the vote was re-cast by an electorate of one – one attorney, white, male, Republican (Judge Walker was originally proposed for the bench by Ronald Reagan) and in many other ways unrepresentative of the California electorate as a whole.

The American people deserve more respect than that.


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