Bench Memos

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Walker’s Conclusions of Law—With Some Commentary


Here’s a quick overview of Judge Walker’s conclusions of law (from pages 109 to 135 of his wild opinion), with some interspersed commentary in brackets:

1.  Proposition 8 violates the Due Process Clause by unconstitutionally burdening the exercise of the fundamental right to marry.  “Marriage has retained certain characteristics throughout the history of the United States”:  “two parties … give their free consent to form a relationship, which then forms the foundation of a household.”  [Ah, yes, “parties.”  “I now pronounce you party and party”—that sure captures what marriage has traditionally been.]  

“The spouses must consent to support each other and any dependents.  The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace.”  “Never has the state inquired into procreative capacity or intent before issuing a marriage license.”  [Walker obscures as much as possible the central purpose of marriage as a vehicle for helping to ensure that children are raised by their father and mother.  That purpose is advanced even when a husband and wife can’t procreate together (because one of them is infertile), as the marital obligation of fidelity helps ensure that the fertile spouse doesn’t have children outside the marriage.  That purpose is also advanced when a husband and wife don’t intend to procreate, for the obvious reason that they may nonetheless end up having children together (and also may change their intent).  And, of course, there are plenty of countervailing privacy reasons why the state wouldn’t be exploring “procreative capacity.”] 

“[M]arriage in the United States traditionally has not been open to same-sex couples.”  But that’s “an artifact of a time when the genders were seen as having distinct roles in society and in marriage.”  “Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents.”  Plaintiffs’ same-sex relationships “are consistent with the core of the history, tradition, and practice of marriage in the United States.”  [Uh, sure, whatever you say, Judge.]

California’s domestic-partnership laws [which the California supreme court has said provide generally the same rights, protections, and benefits as marriage] do not satisfy California’s obligation to allow plaintiffs to marry.  Domestic partnerships “do not provide the same social meaning as marriage” and “exist solely to differentiate same-sex unions from marriage.”

“Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny.”  But Proposition 8 can’t withstand even rational-basis review (as explained in the equal-protection discussion).

2.  Proposition 8 violates the Equal Protection Clause by creating an irrational classification on the basis of sexual orientation.  “Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation.”

“The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation.”  [The “trial record”?  Hmmm, how about what governing precedent says?]  But strict scrutiny is unnecessary here because Proposition 8 “fails to survive even rational basis review.”

“[E]xcluding same-sex couples from marriage is simply not rationally related to a legitimate state interest”: 

(a) The tradition of restricting an individual’s choice of spouse based on gender is “nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.”

(b) There is no state interest here in proceeding with caution when implementing social changes.  “Plaintiffs presented evidence at trial sufficient to rebut any claim that marriage for same-sex couples amounts to a sweeping social change.”  [Same-sex marriage doesn’t amount to a “sweeping social change”?!?  And what does Walker mean by the artful phrase “sufficient to rebut”?  Merely that a trier of fact could choose to credit that evidence?]  “[T]he evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive, effect on the institution of marriage.”  [Only a hardened ideologue could contend that this issue is somehow “beyond debate.”]   “[T]he evidence shows that the rights of those opposed to homosexuality or same-sex couples will remain unaffected if the state ceases to enforce Proposition 8.”  [Oh, really?  Like the right to send one’s children to public schools where they’re not indoctrinated with the sort of dogma that pervades Walker’s opinion?  If anyone who opposes same-sex marriage (e.g., President Obama) is an irrational bigot, why wouldn’t penalties and other disadvantages (e.g., limitations on right to adopt) follow?]

(c) There is no state interest in promoting opposite-sex parenting over same-sex parenting.  “[T]he evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes.”  [Only someone who is a hardened ideologue or who has never been a parent—Walker evidently satisfies both conditions—could believe that “parents’ genders are irrelevant to children’s developmental outcomes,” much less that the matter is “beyond any doubt.”] 

(d) There is no state interest in treating same-sex couples differently from opposite-sex couples.  “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.”  [Depending on how broadly one defines “moral,” this proposition may be accurate.  But it would be equally accurate to state, say, that “moral and religious views form the only basis for a belief that all persons should be protected from murder.”  Moral views clearly underlie all sorts of legislation (e.g., civil-rights laws, health-care reform—the list could go on forever).  So it can’t really be the case that the American people generally can’t enact moral views into legislation (even as judges impose their own moral views).]

[The good news is that Walker’s reasoning is so biased and over the top that it ought to be difficult for anyone to credit.]


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