As intimidating as its 138 pages may be, Judge Vaughn Walker’s decision in the Prop 8 case yesterday is well worth reading by all advocates for LGBT equality. Most of us are striking a note of cautious optimism, which is certainly appropriate as we prepare for the inevitable appeals. The 9th Circuit is unpredictable, and then there’s the Roberts Court… But because of the procedure followed in this case, Judge Walker has done something that can never be removed from thoughtful debate on this issue, and that even the higher courts may find hard to circumvent.
There is a key paragraph on page 1:
Choosing a favorite among those phrases, I feel safe in assuming that only a lawyer would get excited about “pursuant to FRCP 52(a).” But that represents a critical distinction between this and other court cases. This case went to trial and includes “findings of fact” that, per Federal Rule of Civil Procedure 52(a), “must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.”
In other words, higher courts are basically stuck with his factual findings. They can dispute what legal consequences flow from those facts; but it is now a formal finding that Prop 8 promotes discrimination, that existing marriages are unaffected by expanding marriage to include same-sex couples, that children will benefit if same-sex couples can marry, that the state has no legitimate interest in reserving marriage to opposite-sex couples, and that Prop 8 is best explained as an improper intrusion of religious values onto a state function, which increases bigotry and harms the LGBT community and the people in general.
In the past, opponents of same-sex marriage have relied upon generalizations about the state’s interests. But in this case, each of those claims (including preserving tradition, protecting children, promoting reproduction, and others) were put to the test and, in legal findings of fact that higher courts are bound to respect, were found to be completely lacking in credibility. Quite literally, opponents of same-sex marriage could come up with NO legitimate basis for their position that stood up under scientific and legal scrutiny.
Of course, despite the strong legal position we are in now, whether these careful factual conclusions will mean anything to certain individuals with lifetime tenure is anyone’s guess. This is why the findings should be carefully read and retold to the general public. Although most marriage successes in this country have been in the courts, Vermont, DC, and a number of foreign jurisdictions have embraced same-sex marriage through the electoral and legislative process. To the extent we hold out hope that reasoned argument can still have its day in the US, especially pages 60-109 of Judge Walker’s decision can be very helpful in clearly and methodically knocking down every argument in opposition to same-sex marriage. There are some great declarations of principle throughout his decision, but advocates shouldn’t overlook the hard and useful work of the findings of fact. Like when arguing with someone who has watched too much Fox News, sometimes we have to spend time dispelling the demonstrably false premise for their views.
