Chief Judge for the Northern District of California, Honorable Vaughn R. Walker just did the damn thing. He overturned Proposition 8, which banned same sex marriage in California after the voters had already done voted for same sex marriage in California. WHEEEEEEE!!! (Well, not by himself, obvs., but he wrote the opinion, so WHEEEEEEE!!!)
I don’t have much to say about this right now because I’m super hella excited, but also because I have a ton of “real work” to do, and I don’t want to start spouting nonsense until I’ve read the whopping 138 page opinion. Reading other media or Huffington Post coverage simply isn’t gonna cut it for old Stopthemadness, Esq. What I can tell you is a little bit about standards of review on appeal (because H8Rs gotta H8 and H8Rs gotta aPEEL.)
First, there’s the “de novo standard” which is the standard of review for purely or predominantly legal issues (like whether or not a statute (Proposition 8, in this case) is constitutional.) When conducting a de novo review, the Ninth Circuit does not have to defer to the district court’s ruling. It can essentially do whatever the hell it wants. The de novo standard of review applies in a bunch of different situations, but the two relevant here are (1) when the district court interprets or applies federal or state law to the facts; and (2) mixed questions of law and fact.
- What this means: If the Ninth Circuit reviews the Prop 8 case de novo, then it reviews all the ridiculous opinion testimony from those asshat experts who were jibber jabbering about how if Jack and Joe get married, then Jack and Jill’s marriage is going to fall apart just because of Jack and Joe’s very existence as a gay couple. There are homos in my vector! And they are turning me gay!
If you have a brain, you know this is the dumbest fucking argument in the history of everything. But, under de novo review, essentially, the Ninth Circuit can do whatever the fuck it wants; it doesn’t even have to choose between the opposing parties’ conflicting interpretations. It could decide, for example, that everybody has to get gay married! (Ok, no it couldn’t, but you get the point.)
Second, there is the “clearly erroneous standard,” which is the standard applied to a district court’s findings of fact. Under the “clearly erroneous standard,” the Ninth Circuit must accept the district court’s decision unless it has a “definite and firm conviction that a mistake as been committed.” In other words, even if the Ninth Circuit thinks the district court got it really really super wrong, as long as what the district court did is plausible, the Ninth Circuit can’t reverse — even if it thinks it would have done, like, a waaaaaay better job. This standard applies when the district court’s findings of fact are based on oral testimony or documents. Also (and this is important) a district court’s findings about the credibility of various witnesses is given a lot of deference. Like, a shit ton. (Credibility also gives Alot deference, but Alot wishes Credibility would keep its deference to its damnself.)
- What this means: If the Ninth Circuit reviews the Prop 8 order under the clearly erroneous standard (which it likely will, as I will allow people smarter than me to explain below), then it’s going to be very difficult to reverse Judge Walker’s ruling (even if the Ninth Circuit, like, totally hates the Prop 8 order, shoves it in a locker, and calls it a fag.)
Much of the Prop 8 Jackasses’ case was based on various expert testimony from various asshats at various rightwing “God Hates Fags” type places. You know, like the Center for Family Values and Keeping Our Society Gay, But HAPPY Gay, Not GAY Gay Because EW! Homos Are Gross!. Judge Walker found that the testimony of these asshats was not credible. The Ninth Circuit is going to have a hard time setting aside Walker’s factual findings as to the conflicting expert testimony from the H8Rs (Gays are going to ruin us all!!) as opposed to the Normal People (“What the gay?!”).
Much of Judge Walker’s opinion focus on the facts, and why he concludes that there is no rational basis on which a person can oppose same-sex marriage. But here’s a key passage from the law section of the opinion, on pages 113–14 (with citations to the record omitted):
The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.
Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States. Perry and Stier seek to be spouses;they seek the mutual obligation and honor that attend marriage, Zarrillo and Katami seek recognition from the state that their union is “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold, 381 US at 486. Plaintiffs’ unions encompass the historical purpose and form of marriage. Only the plaintiffs’ genders relative to one another prevent California from giving their relationships due recognition.
Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.
Here’s Marc Ambinder of The Atlantic:
What matters are the facts that Walker finds. Why? As Chris Geidner notes, “[the] judge or jury who makes the findings of fact, however, is given deference because factual determinations are aided by the direct benefit of the judge or jury at trial. On appeal, Judge Walker’s findings of fact will only be disturbed if the appellate court finds any to be clearly erroneous.”
Walker, in his decision, writes that “Proposition 8 fails to advance any rational basis in singling out gays and lesbians for denial of a marriage license.” He evaluates as credible witnesses the panel of experts who testified against Proposition 8, and finds fault with the credentials of several witnesses who testified against same-sex marriage, including David Blankenhorn, President of the Institute for American Values.
“Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight,” Walker writes. “Blankenhorn gave absolutely no explanation why manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for same-sex couples. His opinion lacks reliability, as there is simply too great an analytical gap between the data and the opinion Blankenhorn proffered.”
Here are the relevant facts he finds:
1. Marriage is and has been a civil matter, subject to religious intervention only when requested by the intervenors.
2. California, like every other state, doesn’t require that couples wanting to marry be able to procreate.
3. Marriage as an institution has changed overtime; women were given equal status; interracial marriage was formally legalized; no fault divorce made it easier to dissolve marriages.
4. California has eliminated marital obligations based on gender.
5. Same-sex love and intimacy “are well-documented in human history.”
6. Sexual orientation is a fundamental characteristic of a human being.
7. Prop 8 proponents’ “assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.”
8. There is no evidence that sexual orientation is chosen, nor than it can be changed.
9. California has no interest in reducing the number of gays and lesbians in its population.
10. “Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital union.”
11. “Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.”
12. “Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.
The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.”
13. “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.”
Remember, these are the FACTS that Walker has determined from the testimony and evidence. These facts will serve as the grounding for the legal arguments yet to come.
Unfortunately, it appears as if Judge Walker has not yet decided whether the order will be immediately effective, or whether he should suspend it pending the H8Rs’ appeal to the Ninth Circuit, and the likely appeal after that to The Supremes. Here’s to hopin’ he lets every ‘mo in all of California get married in the next couple of weeks (it’ll take at least that long for the H8Rs to file their appeal).
Anyhoodles, that’s all I’ve got for now. Like I said, I gots a real job and whatnot, but YAY!!!
[Author's Note: You can read the entire Prop 8 Order here. You can usually skip the first 50 or so pages to get to the good stuff; otherwise you're likely to fall asleep before the order gets to the Background Facts section. Trust me. I'm a lawyer.]
[HA! I was right. I just checked the order and the "Findings of Fact" section begins on page 54. Also, the "Credibility Determinations" section begins on page 25, the "Conclusions of Law" section begin on page 109, and the "Equal Protection Analysis" begins on page 117.]