Reading between the lines of the closing argument in Perry: sex discrimination and a fundamental right

Oral arguments make for great theater, but any experienced lawyer will tell you that they usually don't count for much. What matters far more to the outcome of a case is the quality of the record (i.e., the evidence) and of the briefs. The greatest usefulness of oral arguments to the lawyers on either side of a case is what judges reveal by their questions. (In the Perry case, Judge Walker essentially said let's cut to the chase, and posed his questions beforehand, inviting counsel to respond both in writing and during argument.)

The closing argument in the Perry case was tee'd up to be much more interesting than most, however, if only because Judge Walker scheduled it to go on for five hours, much longer than normal. Thanks to its posting by AFER (the group formed to bring and finance the case), the transcipt of the argument is available to everyone. So the old line about how you had to have been there doesn't hold - it really doesn't matter if you were there or not; you can read everything that happened.

And since predicting that Judge Walker will rule for the plaintiffs ranks right up there with predicting that the sun will rise in the east, the most fun way to read the transcript is to search for signs of what the bases for his reasoning will be, rather than for hints about who will win. The following themes and exchanges struck me as the most interesting, although it is truly anyone's guess how relevant they will end up being to the court's opinion:

* Plaintiffs' move to emphasize a sex discrimination theory for Equal Protection purposes at least as much as and perhaps more than a sexual orientation theory, an approach that Judge Walker seemed to pick up on and run with:

Early in the argument, Ted Olson invoked sex discrimination to evade the judge's pushing him on the applicability of only a rational basis standard of review.  Judge Walker elicited Olson's acknowledgment that plaintiffs have the burden of proof, and then Walker pressed on the "standard of review being rational basis?"

Olson responded that strict scrutiny was required both because marriage is a fundamental right, and, as to the Equal Protection Clause, because Prop 8 is "putting the plaintiffs and others like them in a suspect classification based upon sex and sexual orientation."

Olson returned a few minutes later to the sex discrimination argument.  He had begun his presentation by contrasting how defenders of Prop 8 had framed their case in litigation around an arguably principled argument - that the prime function of marriage centered on procreation and on maximizing the odds of children being raised by both biological parents - with how Prop 8's proponents during the campaign had used an openly anti-gay argument - raising fears about the need to protect children from learning that gay marriage is ok.

When Olson was able to get back to this after several of Judge Walker's questions, he returned to the sex discrimination theme:

...[I]n the VMI case [a sex discrimination case], ...the Supreme Court said, you can't make this [statutory purpose] up after the fact.  The post-hoc rationalizations won't work. One of the reasons I explained to you the shift in [the defendants'] position is to show you that the rationalizations that were being offered at the end of the trial were different than the motives that were in the ballot proposition and the advertising.

Later, during Chuck Cooper's argument in support of Prop 8, Judge Walker noted that "[t]here really is no limitation [on the right to marry] except, as Mr. Olson pointed out, a gender limitation."

Cooper responded by linking that to his procreation-is-central argument:

[T]hat gender limitation is a definitional feature of the right to marry...That is clear from the [Supreme] Court's repeated statement that the reason marriage is fundamental is that it is fundamental to the existence and survival of the human race...The right to marry is bound up with and proceeds from ... its fundamental purpose relating to procreation...So it is, by definition, the right of a man to marry a woman, and vice versa. That is the right."

* Is this case about Prop 8 and CA law, or do Olson and Boies really want to open a national can of worms by getting a ruling that 45 state laws are unconstitutional? This has been a bone of contention between Olson/Boies and the lgbt legal groups since the beginning the case. Judge Walker is still unclear about it also:

Judge Walker: [A]re you focusing on the facts pertaining to the California initiative, or the facts pertinent generally and throughout the country with respect to marriage?

Olson: Both of those. [And then he immediately changed the subject, without elaborating or even attempting to spell out why so much evidence particular to Prop 8 would be relevant to a nationwide ruling.]

* Finding strict scrutiny under the Due Process Clause, not under the Equal Protection Clause:

Judge Walker asked Olson if there might be different levels of scrutiny to be applied in this case, implying that a stricter one would flow from the substantive due process/liberty analysis than from equal protection analysis.

Olson, of course, responded that the highest level of scrutiny should be applied under both doctrines.

* Speculation and the rational basis test:

Cooper said that if he could retract anything that he had ever said, it would be his "I don't know" answer during trial when Judge Walker asked him what the negative consequences of same-sex marriage would be, because now, he said, he "damn sure would know" anything Walker asked.  It was a clever and funny (if ultimately unpersuasive) way to try to dig himself out of that hole. But it had a serious context: one key to Cooper's entire argument is the specter of unforeseeable consequences of same-sex marriage.

Judge Walker then pressed Cooper on whether the "we don't know where it's going to lead" answer was "enough to impose upon some citizens restrictions that others do not suffer from?"

Cooper's response: "[I]f there is a rational basis for that distinction, yes. I really think that ends up being the bottom line... If there's no basis on which to draw a distinction between one group and another, then the distinction can't stand. But if there is a distinguishing characteristic that is relevant to one of those purposes [behind the law], then the distinction can stand. [As defendants,] we don't have to prove that including same-sex marriage within the definition, or redefining marriage to include same-sex marriage, would visit harm upon the institution and the interests that it serves...Rather, we only have to prove that including same-sex couples would not serve those interests, either at all or not to the same extent."

* The choice by plaintiffs' lawyers to use socially conservative, marriage-glorfying rhetoric in their arguments, as in these statements by Ted Olson:

Marriage is the most important relation in life...It is the foundation of society. It is essential to the orderly pursuit of happiness...The plaintiffs have said that marriage means to them freedom, pride. These are their words. Dignity. Belonging. Respect. Equality. Permanence. Acceptance. Security. Honor. Dedication. And a public commitment to the world...Your Honor, it's important to emphasize, the plaintiffs have no interest in changing marriage or deinstitutionalizing marriage. They desire to marry because they cherish the institution...

In some of the early marriage cases, lgbt groups used similar language to describe marriage, but they have stopped, mostly because large segments of the lgbt community responded with a massive gag reaction to this kind of totalizing sentimentality.

Many, though far from all, same-sex couples do want to marry, and they surely should have that right. And like anyone else who wants to marry, they have a wide range of reasons. I would venture to bet that for most of them, "cherishing the institution" is right there on the very bottom of that list.

Comments

[Gib Wallis]

Hi, thanks for the continuing coverage and analysis.

Do you think there's a possibility that Judge Walker could issue a ruling that would enable marriages in Hawaii as well as California?

Reading over the Perry Plaintiffs' findings of fact, they made the argument that it's a judicial custom that once a right is recognized by a court ruling, the right existed before and was not created through the ruling.

If Walker rules that yes, indeed, taking a fundamental right away through a constitutional amendment is impermissible, and that California recognized the fundamental right and it was taken away by constitutional amendment, wouldn't that basis open the can of worms for Hawaii because the Hawaiian Supreme Court similarly recognized a right of gay people to marry?

This seems like it might be very different from what many are postulating, that Walked would make a sweeping ruling or a ruling to recognize the right to marry throughout the 9th district.