The Prop. 8 Federal Case: Summing Up the Proceedings
by Roger Brigham
EDGE San Francisco Editor
Thursday Feb 25, 2010
Last November, 7 million Californians voted to pull the plug on marriage equality. In a few weeks, a single federal judge will decide whether or not they had the right to do that.
Ultimately, nine U.S. Supreme Court justices will undoubtedly be asked to rule on whether he got it right, however he decides. Closing arguments in the case, which is being heard in a San Francisco courtroom, are yet to be heard.
Until then, EDGE asked some of the most prominent legal scholars on both sides of the issue how they think the two couples challenging the constitutionality of Proposition 8 will fare. Did their high-profile legal team of Ted Olson and David Boies (who headed the legal teams in the historic Gore v. Bush 2000 election dispute) make their case?
Unlike a failed state Constitutional challenge a year ago, opponents in the federal challenge argued before District Chief Judge Vaughn R. Walker that the decision to revoke marriage equality was invalid under the federal Constitution. It violated due process and equal protection guarantees, they maintained. But is that argument sticky enough?
Not according to Calvin Massey, a constitutional law professor at University of California Hastings College of the Law. "Applying existing constitutional case law, I don't think that case has been made," he told EDGE.
Even so, like many others Massey believes "the outcome of the trial in this court is a foregone conclusion." Walker will find for the plaintiffs.
"I don't think that will be a surprise to anyone," Massey added. "What will be interesting will be the rationale for the conclusion. This court is but a way station for the case. The way in which he writes his opinion may have some influence on the ultimate disposition of the case."
But Hastings College colleague Joseph Grodin, who specializes in Constitutional and job discrimination law, disagreed. "The plaintiffs "made their case in the sense that the defendants have not been able to make theirs," he said. "The defendants had the burden of coming up with at least a rational basis for the ban on same-sex marriage. I question whether they were able to do that."
Case Brings up Issue of Minority Rights vs. Majority Prejudice
Law classes have followed the historic bench trial closely, partly because it brings up thorny issues about how much popular referenda can restrict minority rights, and partly because of the stature of Boies and Olson.
Grodin, for example, has been the case in his constitutional law class as a stepping-off point to discuss various constitutional doctrines - although he also pointed to the "excellent lawyering in the case."
Like other observes, Grodin believes the superstar plaintiffs' legal team outflanked and outlawyered the defendants' lawyers. The defendants curtailed their witness list, which Grodin believes "was likely in response to the cross examination their witnesses were getting at the hands of David Boies."
Joan Hollinger is a University of California Berkeley School of Law professor specializing in family law. She attended much of the trial and her students reported on it through a blog. She agreed with Grodin that Proposition 8's defenders did not present any arguments "that could be upheld or come close, at least in district court."
Making the Case for Prop. 8 as Inspired by Hate
Much of the hopes for overturning Prop 8 rest with the 2003 case Lawrence v. Texas, in which the U.S. Supreme Court finally struck down state sodomy laws. The Supreme Court had overturned a decision made 13 years earlier upholding the criminalization of non-procreative sex.
Massey, however, believes same-sex marriage advocates may be reading too much into Lawrence. "The Supreme Court has never said sexual orientation is deserving to be held to a higher degree of scrutiny," he said. "The fact that California says it triggers absolutely nothing in the federal case. California is free to apply more generous protections, but that was partially reversed by Proposition 8."
The burden of proof is thus on the plaintiffs. They have to show there is no legitimate reason for the proposition or it is not rationally related to the action.
Much of the case laid out for the challengers by Boies and Olson documented the historical and ongoing discrimination against the queer community and the heavy price individuals have paid for it. Boies and Olson brought forth witnesses - theirs and the defendants' - that showed how much anti-gay feelings weighed in the Proposition 8 battle.
But, Massey argues, "There were undoubtedly many, many motivations for those votes, a great many of which were undoubtedly motivated by some other purpose than animosity."
Hollinger countered that Boies and Olson "did a superb job of putting on the record a compelling record of what life has been like for gay people and the exclusion from many aspects of contemporary society, including 'Don't Ask, Don't Tell' or the fact that at the federal level there is not a law barring discrimination based on orientation."
If Walker concentrates on the argument that Proposition 8 was the result of anti-gay feelings and the desire to discriminate in a separate but unequal category, then the past history of discrimination against gay men and lesbians would become very relevant.
Proposition 8 proponents were shown to stereotype gay men and lesbians as sexual predators out to destroy families and children. But the defendants' lawyers also worked hard to show that the people voting for the initiative did not do so necessarily because they were homophobic, but because of a sincere belief in a traditional definition of marriage as being between one man and one woman - period.
"It reflects a longstanding cultural judgment about the nature of marriage," Massey said. "It is that judgment which is under attack."
Did Prop. 8 Proponents Overplay Their Hand?
But evidence obtained from the Yes on 8 campaign introduced at the trial appeared to counter that. The messages delivered at rallies and broadcasts included numerous vile references to a "gay agenda" out to "teach homosexuality" to children, push for legalized pedophilia and bestiality and destruction of families. That shows, in legal terms "animus."
The fact that Walker allowed the plaintiffs to explore underlying motives of the Proposition 8 backers may end up as the most significant aspect of this trial.
"What is significant about the trial is that there is a trial, and the judge decided over the objections of the defendants to hold an evidentiary hearing," Grodin said. "That shows he intended to have findings of facts. That's more significant than how he rules."
Jesse Choper is a law professor at the University of California at Berkeley and a constitutional law specialist. He remains skeptical that Boies and Olson exposed the motives of the Proposition 8 backers.
"It's very difficult to probe the intentions of that many voters," he said. "It's not a clear question of fact; it's not, 'Did this guy pull the gun or didn't he pull the gun.'
That's why the most critical factual finding Walker will make is what was the purpose or the motive or the intention behind the Proposition 8. "If he were to find the motive was hostility toward gays - the term is 'animus' - then the challengers have gone a long way to proving their case that it is unconstitutional," Choper said.
"He took a lot of evidence on that, and a great deal more of that evidence may have been in the internal documents from the campaign they couldn't get on the grounds it would violate First Amendment rights."
Well after the evidentiary cases closed in January, the "open secret" of Judge Walker's sexual orientation was reported in a Feb. 7 article in the San Francisco Chronicle. Although conservative pundits and bloggers jumped on that as evidence of juridicial prejudice, most found his conduct of the trial even handed.
Holinger found him ""quite patient and quite fair." In the face of what some feared would turn into an O.J.-style circus, Walker "ran a very good courtoom," he added. "He kept moving everything along, he knew when to take a break. And when he got exasperated, he was pretty gentle about it."
Most observers believe that whichever way Judge Walker finds, the case will be appealed, probably all the way to the Supreme Court. There, many expect a split decision in which Justice Anthony Kennedy would likely cast the deciding vote.
Massey said he thinks the Supreme Court Justices may decline to review the case. He believes that the justices predisposed to find for or against Prop 8 might be reluctant to take on a case that could go the other way.
On to the Supremes: It's up to Judge Kennedy
"If four judges are all inclined for the plaintiffs, but they have their doubts about whether Kennedy would go along, and it is upheld, they would have abetted making constitutional law that they may not like," Massey said. "By the same token, four conservative justices may well be inclined to find in favor of Proposition 8 but have doubts, too, about Kennedy. In which case you would have one vote for review by Kennedy and eight against."
Overall, Justice Kennedy has been has been quite friendly to the gay community. "You might extrapolate from that that he would be likely to vote with the four liberals," Massey noted. "On the other hand, this is a different issue, one that is far more politically volatile. It has less of a precedential foundation. It's impossible to predict."
But not impossible to guess. The majority opinion in a decision to strike down a Colorado ban on municipal and state protections against queer discrimination was written by Kennedy. In it he wrote that that initiative was driven by a "desire to harm a politically unpopular group" and that "it lacks a rational relationship to legitimate state interests."
"His opinion struck that down on the ground that it seemed pretty clear the initiative measure had an anti-gay and lesbian animus behind it," Grodin pointed out. "I think that's pretty clear of Proposition 8 as well. Things he has written make it somewhat difficult for him to deny the plaintiffs' claim. If he rules in favor of Proposition 8, he would have some explaining to do.
"Myself, I am much in favor of permitting gay marriage," Grodin said. "If given a chance, I would in favor of a proposition that overturned Proposition 8. That's good public policy - but that doesn't mean that it is unconstitutional."
For one possible hint of how Walker might stand, look to what the law always looks to: precedent. In a ruling against a same-sex marriage ban before passage of Proposition 8, the California Supreme Court ruled that gays were a "suspect class." That means they were a politically vulnerable minority requiring that the judicial system ensure they not be subjected to legalized discrimination.
The ruling focused on the social value of the term "marriage" as being something gays and lesbians had an equal right to. Later, however, in upholding the voter initiative that revoked those marital rights for gays and lesbians, the state court said that the voters were not denying them rights, just "carving out" a piece of their rights.
Traditionally, California courts have been very reluctant to invalidate a referendum. The initiative process in California has a long, proud history that dates back to its rough-and-tumble days as a vast frontier outpost, where direct democracy was seen as a counterweight to a distant state government.
"History in the state indicates it is very difficult to invalidate an initiative," Hollinger noted. "I think the state court was holding onto as much of it could of its earlier ruling in the marriage cases, having pronounced there's a fundamental right to marry."
"The proposition limited marriage to one man and one woman, with the consequence given that equal rights were suddenly facing a smaller pie. Something has been cut out - and that is marriage."
To reach that conclusion, the court had to go into what Hollinger termed "rhetorical contortions": "Well, it matters, but maybe it doesn't matter that much."
"In that regard, it is somewhat incoherent," Hollinger opined. "The essence of the marriage cases focused on the value of the word 'marriage' - the symbolic, intangible aspects. 'They can still have everything, but we, the people, are carving out the 'M' word.' The court was in an extremely difficult position. It had no precedent to rely on."
The Question of Televising Proceedings
Originally Walker had planned to allow the court proceedings to be broadcast to several other federal courthouses and there were plans to have delayed video postings on the internet. Those plans were eventually scuttled by the U.S. Supreme Court in a decision that became as much discussed in legal circles as the case itself. (The proceedings were videotaped for Walker's records.)
"That's part of any ongoing disagreement within the federal system," Hollinger said. "The Supreme Court has been consistently opposed to allowing the media into any Supreme Court proceedings. Some of this is just explicable to the relations and politics within the court system. But I think it goes beyond that.
"I think the proponents of Proposition 8 were quite afraid of the consequences of allowing the proceedings to be broadcast. Their case would be exposed as bankrupt and empty. They're the ones who want to be closeted. It suggests the Proposition 8 proponents were afraid of what the consequences would be. But do they deserve to be protected against that? I would say, 'Sorry, that's not something that you can protect against.'"
"I think its unfortunate the Supreme Court stepped in to block that," Grodin said. "It was a very unobtrusive, modest proposal to have this broadcast in various federal courtrooms. I think it would have been very educational for the public to see what went on in that trial."
One Thing Everyone Agrees on: Boies & Olson Lived up to Star Billing
Which was by virtually all accounts some damned good lawyering by the challengers.
"I do think the performative aspects of that trial were extraordinary," Hollinger said. "I have witnessed a lot of litigation in federal and state appellate court proceedings. I think a lot of us who were there were kind of blown away by the skill of Boies and Olson and their staffs and the City (of San Francisco) Attorney's office lawyers.
"What the attorneys were able to do was not only to present the expertise of these individual scholars in very clear and persuasive fashion, but they allowed them to in direct examination refute any possible argument that could be raised by the other side.
"Ninety-nine percent of their time has been as corporate and anti-trust litigators. They knew nothing about family law until this summer. I really must hand it to them. I don't recall a false step during that full period."
Said Grodin, "I think David Boies' skillful cross examination of witnesses and in their depositions when they came to testify probably motivated the defendants to knock some of their witness off their list."
Only the End of the Beginning
Trial proceedings were wrapping up this week with final motions to produce evidence. As soon as Friday Walker may assign a date for the closing arguments, which are expected to take one day.
"We are just at the very beginning," Hollinger said. "I remain very uncertain about what will happen at the appellate level. The country is not in a good mood. These issues are almost the last gasp of the ability of cultural minorities to strike back at other minorities by putting together a kind of majority that can operate on ignorance.
"But we shall see. What we did see was some brilliant lawyering."
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