I read through all 136 pages last night before commenting on the opinion as per my self-imposed rule. (I hate people who react without having facts.) It was a doozy. I mean, Walker eviscerated the notion that the state had any conceivable rational in limiting marriage to a man and a woman.
I finally got through the ruling from Judge Vaughn Walker in Perry v. Schwarzenegger which overturned Proposition 8 as unconstitutional and it is scathing. I have never read anything worded this strongly other than Scalia’s dissent in Lawrence v. Texas where you could virtually hear the man shrieking with fists flying (and I say that having tremendous, enormous respect for Justice Scalia’s intellect, which at times, soars to the level of an apostle preaching legal gospel).
Perry v. Schwarzenegger was a total, complete home run for David Boies and Ted Olson, the famed liberal and conservative lawyers who took the case together after facing off in Bush v. Gore nearly ten years ago, because they won on every point of the law, including equal protection and due process violations. (Olson’s wife, a major conservative television commentator, was killed because she was flying on the plane that crashed into the Pentagon during September 11th.) They also succeeded in having gays and lesbians qualified as a historically disadvantaged suspect class eligible for federal protection.
It Will Be Extremely Difficult for an Appeals Court to Overturn the Judge’s Decision
Just as significant as the opinion itself, though, is the 60 or 70+ pages of “findings of fact” that make up the heart of the opinion because of how the United States legal system is organized.
In the U.S.A., appeals courts and the Supreme Court must, as a matter of rule, rely on the “facts” the trial court “found” based upon the evidence. Unless the appeals courts can clearly see the evidence is wrong (e.g., a judge insists water is orange and not blue despite expert testimony to the contrary), the facts are considered settled and not open to debate. They must be the basis upon which an appeal succeeds or fails. Once in the record, you can’t introduce new evidence. Think of it as framing the discussion. They can’t be changed afterwords.
Walker found 80 facts based upon past Supreme Court rulings, expert testimony, and other evidence that are now no longer up for debate as far as the law is concerned. In other words, these things cannot be disputed in the appeals court. Or at least, not without moving heaven and earth.
What are some of these facts? Hold on to your hat because they are so sweeping that I think it is going to be almost impossible for the higher courts to overturn the ruling: (more…)
