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June 09, 2010

Judge Walker pops the questions

During the four months since the trial in Perry v. Schwarzenegger ended, Judge Walker has presumably been reviewing the transcript and drafting his opinion.  Yesterday he issued a list of questions "to assist the parties in focusing their closing arguments" which he will hear on June 16 -- in other words, to get the lawyers to spend their argument time addressing what he is concerned about.

It's quite a list. And if the questions are any indication, the Walker opinion will be a blockbuster, at least in terms of its scope, depth and detail. Court decisions generally take an analysis far enough to resolve the particular issues presented, but no farther. But from the beginning of this case, Judge Walker has indicated a willingness to dig deeper, by forcing both sides - plaintiffs and defendants initially both resisted the demand for extensive evidence on the ground that it was unnecessary - to come up with evidentiary support for the kinds of quasi-philosophical arguments that make constitutional law so fascinating.

Like the trial itself, Judge Walker's post-trial questions range all over the place, including history (how can a right be characterized as fundamental, given the Supreme Court’s focus on tradition, when it did not exist in American society until a few years ago), culture (what is the difference between gays and lesbians on one hand and heterosexuals on the other), and economics (why is it relevant that state and local governments would benefit economically if same-sex couples could marry, especially if the magnitude of the benefit is small). The list consists of a dozen questions for each side, plus 15 more for both sides.

Judge Walker pushes the plaintiffs, for example, on the significance of voter intent. If the voters honestly believed that Prop 8 was rationally related to a legitimate state interest, should the court defer to that even though the evidence introduced by defendants at trial failed to demonstrate a rational basis? That resonates with a core governance question in a democracy, where courts do not attempt to second guess voter (or legislator) motivations, so long as the standard of review is set at the low "rational basis" level. In the law of some states, the standard of review for classifications that discriminate based on sex/o is now higher than rational basis. But there is less support for heightened scrutiny under federal law, which is what governs in Perry. So one major threshold question facing Walker is which standard of review he should use in his analysis (which is one of his questions to both sides). If the answer is rational basis, he runs into, among other things, the question of deference to majoritarian democracy.

The judge's questions to the defendants press them, in various ways, on why allowing same-sex couples to marry should be such a big deal under the law: What is the evidence of negative social consequences? What is the magnitude of those consequences? What is the evidence that "same-sex marriage is a drastic or far-reaching change to the institution of marriage?" Except for fertility, how are same-sex couples different from opposite-sex couples vis-a-vis marriage? Why is the “deinstitutionalization” of marriage bad? To the extent that moral disapproval of homosexuality is at the bottom of this, how is that different from discrimination?

One of Judge Walker's concerns gives me some apprehension: he seems to have been drawn into what I consider to be the deadend of thinking that immutability has any constitutional significance.  Thus these questions to both sides: "What does it mean to have a 'choice' in one's sexual orientation?" "What are the constitutional consequences if the evidence shows that sexual orientation is immutable for men but not women? Must gay men and lesbians be treated identically under the Equal Protection Clause?"  Note to Judge re: that last question: have you ever heard of sex discrimination?

And then, my absolute, all-time favorite question that I have ever seen a judge ask: "Assume that the evidence shows that sexual orientation is socially constructed. Assume further than the evidence shows Proposition 8 assumes the existence of sexual orientation as a stable category. What bearing if any do these facts have on the constitutionality of Proposition 8?"

Maybe I could suggest some reading...


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In addressing the question of immutability of sexual orientation and equal protection, I'd like to hear the plaintiffs argue that bisexuality (which is indeed as valid and stable as any other orientation) offers the perfect test case.

Currently, a bisexual in a different-sex relationship would have full access to civil marriage in California, with all its rights and responsibilities. However, if the person had fallen in love with a same-sex partner instead, s/he would be denied those same rights. In other words, as things stand, the *same person* doesn't receive equal protection under the law, even though her/his orientation didn't change.

(And just to head off any discussions about bisexuality being a phase, please read the research: )

I'm definitely interested to see how this trial plays out.

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