Does Proposition 8’s restoration of the traditional definition of marriage amount to unconstitutional discrimination against homosexuals? Rather than decide this question, one way or the other, as a matter of law, Judge Walker concluded—with few if any signs of careful analysis—that this question turns on various factual issues that need to be resolved through trial testimony. One of those factual issues is whether Proposition 8 was “passed with animus.” (I’m quoting from the transcript of the October 14, 2009, summary-judgment hearing.) In other words, rather than decide whether the traditional definition of marriage necessarily reflects an irrational animus against homosexuals, Walker is purporting to conduct a factual determination of the subjective intentions of the more than seven million California voters who supported Proposition 8.
Let’s start with the patent absurdity of the task of determining the subjective intentions of more than seven million California voters. Walker himself implicitly acknowledges that there were legitimate, constitutionally permissible grounds for supporting Proposition 8. (If there weren’t, there would be no reason for a trial.) Set aside the fact that Walker has given no guidance on the line between legitimate and illegitimate grounds. How can he possibly discern on what grounds various California voters acted? And even if he could, what about voters who had multiple grounds, some legitimate, some not? Is he going to determine which grounds predominated? Or does the existence of any illegitimate motive somehow taint the vote of someone who also had legitimate motives? Is Walker going to try to quantify the number of “bad” voters and then adjust the final tally on Proposition 8 to see whether it still would have passed? If so, is he also going to explore the motives of voters against Proposition 8, since it’s surely possible that some or many of them may have voted on illegitimate grounds (e.g., anti-religious animus)?
Given how insane and unworkable Judge Walker’s factual inquiry into voter animus is, it should be no surprise that it’s contrary to established precedent.
In Southern Alameda Spanish Speaking Organization v. City of Union City, 424 F.2d 291, 295 (9th Cir. 1970), the Ninth Circuit, addressing a claim that a city-wide voter referendum on zoning was racially motivated (rather than being based on legitimate environmental grounds), explained that Supreme Court precedent judged purpose “in terms of ultimate effect and historical context.” The subjective motivation of voters was therefore beyond the scope of judicial inquiry:
Under the facts of this case we do not believe that the question of motivation for the referendum (apart from a consideration of its effect) is an appropriate one for judicial inquiry.…
As the District Court noted, “There is no more reason to find that [the adoption of the referendum] was done on the ground of invidious racial discrimination any more than on perfectly legitimate environmental grounds ….
If the voters’ purpose is to be found here, then, it would seem to require far more than a simple application of objective standards. If the true motive is to be ascertained not through speculation but through a probing of the private attitudes of the voters, the inquiry would entail an intolerable invasion of the privacy that must protect an exercise of the franchise.
Similarly, the Sixth Circuit in 1997 re-affirmed that a court reviewing the constitutionality of a voter-adopted measure “may not even inquire into the electorate’s possible actual motivations for adopting a measure via initiative or referendum. Instead, the court must consider all hypothetical justifications which potentially support the enactment.” Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 294 n. 4 (6th Cir. 1997). The court relied on an earlier ruling (its 1986 decision in Arthur v. City of Toledo) in which it had carefully addressed Supreme Court precedent on the matter.
In sum, Walker’s inquiry into the subjective motivations of California’s voters is an unlawful fool’s errand.