Kennon-Green & Co. Fiduciary Financial Advisor, Wealth Management, Global Value Investing

My Analysis of Judge Walker’s Proposition 8 Ruling, Perry v. Schwarzenegger, Legalizing Marriage Equality in California (and Possibly the Entire United States)

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:

  • Fact #19: “Marriage in the United States has always been a civil matter.  Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage.  Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.” Analysis: Judge Walker just settled as fact that religion has no authority to determine civil marriage contracts.  It cannot be used as a justification on appeal.
  • Fact #20: “A person may not marry unless he or she has the legal capacity to consent to marriage.” Analysis: Judge Walker just cut the “marry your dog or child” argument off at the knees because consent is required for a marriage to be legal.
  • Fact #21: “California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.” Analysis: Judge Walker removed the ability for the appeals court to consider that having children is the reason marriage exists because we have never required that in the entire history of the United States.  It cannot even be debated, effectively.  One of the sources cited is Justice Scalia’s dissent in Lawrence v. Texas; he used Scalia’s own words.
  • Fact #43: “Sexual orientation refers to an enduring pattern of sexual, affectional or romantic desires for and attractions to men, women or both sexes.  An individual’s sexual orientation can be express through self-identification, behavior, or attraction.  The vast majority of people are consistent in self-identification, behavior and attraction throughout their adult lives.” Analysis: Judge Walker has laid the factual groundwork that the evidence shows sexual orientation rarely changes.
  • Fact #44: “Sexual orientation is commonly discussed as a characteristic of the individual.  Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group.  Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.” Analysis: It can no longer be argued that sexual orientation doesn’t exist.  Furthermore, homosexuality is distinct from heterosexuality and is therefore a class.
  • Fact #45: “Proponents’ campaign for Porposition 8 assumed voters understood the existence of homosexuals as individuals distinct from heterosexuals.” Analysis: Judge Walker used the traditional marriage camp’s own actions and words to hang them, arguing that they know gays are a class and not merely a behavior.  They can’t say gay people don’t exist.

The Big One … Wait for It

  • Fact #46: “Individuals do not generally chose their sexual orientation.  No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.” Analysis: Got that?  According to the facts that move up the court systems, most gays and lesbians are born that way and this cannot be debated.  Being gay is not a choice as far as the court system is concerned.  Game.  Set.  Match.
  • Fact #47: “California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in California.” Analysis: Judge Walker has removed the ability for the traditional marriage people to argue that the state is better off with more straight couples than gay couples.  The evidence shows there is no difference because all are just as capable to work, spends, etc.
  • Fact #50: “Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive.” Analysis: Judge Walker in earlier facts I didn’t quote found that people who are married live longer, have higher net worths, specialize labor, and more.  This effectively shows the damage the state is doing to forbidding gays and lesbians from marrying.
  • Fact #51: “Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.” Analysis: The courts cannot say, “Well, every man has the right to marry one woman so it is equal treatment.”  That argument has now been taken off the table because the facts show that this would be like telling a Christian they had to worship in an Islamic mosque and not a church.  This cut off another major argument some traditional marriage supporters had used in the past.
  • Fact #55: “Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.” Analysis: The courts can no longer say that traditional marriage is harmed in any way.  Straight people are not less likely to get married and have kids.
  • Fact #61: “Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriage.” Earlier facts showed that no-fault divorce and other gender rules had been lifted decades or centuries ago.  The Prop 8 amendment tells women they can’t marry another woman because they are female (the same for men) so they are being discriminated against based solely on their gender.  If they were male, they would be able to get married.  The two genders must be perfectly equal in the eyes of the law.

The Second Big One … Wait for It

  • Fact #62: “Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples.  Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.” Analysis: GOT IT?  No religious group can claim their rights are being taken away because they cannot be forced to marry gays or lesbians.  There is no conflicting constitutional rights at stake.  This is huge people.

Walker’s Final Comments

Judge Walker’s opinion says that there is no such thing as “gay marriage” there is simply “marriage” and some men are being denied that right based on the gender of the person they want to marry (and visa versa for lesbians), which is unconstitutional because there is no difference in gender roles in marriage.

Furthermore, he goes on to say that there is no reason for restricting marriage based on gender except to tell homosexuals they are not as good as heterosexuals and personal religious beliefs, which have no role in a secular government.

By ruling this way, he slammed the door on polygamy.  Marriage, Walker says, isn’t changing.  The courts are just removing gender restrictions like they did race restrictions 40+ years ago.

What Does This Mean for Marriage Going Forward?

If I were a betting man, I’d say marriage equality is a done deal.  The debate is over because the final framing of the facts is going to make it a herculean task for the appeals court to override the Walker decision.

Within 5-20 years, as I’ve said before, being gay will be the same as having blue hair or wearing brown shoes.  It will be completely unremarkable and anyone who has a problem with it will be branded a bigot just like KKK members are now.  The demographic trends, legal foundation, and other sociological factors are just too strong to avoid it.

My Opinion on the Ruling

Personally, I wholeheartedly, 100%, totally, completely, and absolutely agree with Judge Walker’s ruling because the only argument against marriage equality is irrational bigotry.  The fact that many people feel this way is inconsequential just like our forefathers believed “negroes and colored people to be inferior” (besides, more than 90% of Americans were against interracial marriage and only 48% of Americans believe gays are immoral so if anything, this is far less controversial).

[mainbodyad]Allowing gays to marry will not cause straight couples to stop getting hitched.  It does no damage to religious institutions in terms of private practice or belief … just like racist wingnuts that teach their kids that blacks are inferior, people will still be free to say that lesbians are vampires that come from hell and work for the devil.  They just won’t be able to do it without being laughed at or chastised by their peers.

I’m not saying their beliefs aren’t sincerely held.  I’m just saying they’re irrational, have no basis in fact, and are nothing but inherited animus passed down without thought from generation to generation.  After all, the old testament said it is an abomination for Egyptians to eat with Jews and that I can stone my wife if she isn’t a virgin on the wedding night.  Just because our great, great grandparents believed something doesn’t make it true.  After all, these are the same people who thought the earth was flat, we were the center of the universe, and the sun was drawn across the sky by a bunch of horses.

So, Justice Scalia: I adore you, I really do.  Reading your opinions is like intellectual candy.  On this issue, though, you’re just flat-out wrong.  I hope you realize that by the time the case lands in your court but I doubt you will because, well, you’re old and probably don’t want to change your mind (and I say that with all respect).  Listen to your opera buddy Ginsburg on this one.  She’s right.

P.S.: As to the idiotic notion that Walker should have recused himself from the trial because he is reportedly gay, I simply offer a quote from a reader of The Atlantic:

If straight marriages like mine are truly impacted negatively by gay marriage, as many Prop 8 supporters claim, then a straight judge would have to recuse himself as well. He’d HAVE TO – because his group would (supposedly) benefit from Prop 8. If black judges shouldn’t be deciding civil rights cases because they benefit from the outcome, then white judges shouldn’t either, because civil rights legislation (supposedly) impacts whites negatively (fewer seats on the bus, etc.) so the white judge can benefit from the outcome as well. You can always turn the scenario around and see how the race/gender/religion/sexual orientation of the allegedly unbiased group is every bit as biased in a tangible way. This idea that only one group is biased is preposterous. The problem is so few people bother trying to see things from another groups’ view it never occurs to them that their group will potentially benefit from the decision as much as the other group.

Update: On June 25, 2016, the Supreme Court struck down the few remaining marriage bans, extending marriage equality to the entire United States in a decision reminiscent of Loving v. Virginia.  You can read my personal response here.