Prof. Zachary Wolfe
teaches “Law As a Force for Social Change” and “Progressive
Movements: Rewriting History” at George Washington University, and is the
author of Hate Crimes Law and the First Amendment chapter in “Sexual
Orientation and the Law.”
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PSL photo: Bill Hackwell |
As intimidating as its 138 pages may be, Judge Vaughn Walker’s
decision in the Prop 8 case yesterday is well worth reading by all advocates
for LGBT equality. Most of us are
striking a note of cautious optimism, which is certainly appropriate as we
prepare for the inevitable appeals.
The 9th Circuit is unpredictable, and then there’s the Roberts Court… But because of the procedure followed
in this case, Judge Walker has done something that can never be removed from
thoughtful debate on this issue, and that even the higher courts may find hard
to circumvent.
There is a key paragraph on page 1:
Having considered the trial evidence and the arguments of
counsel, the court pursuant to FRCP 52(a) finds that Proposition 8 is
unconstitutional and that its enforcement must be enjoined.
Choosing a favorite among those phrases, I feel safe in
assuming that only a lawyer would get excited about “pursuant to FRCP 52(a).” But that represents a critical distinction
between this and other court cases.
This case went to trial and includes “findings of fact” that, per
Federal Rule of Civil Procedure 52(a), “must not be set aside unless clearly
erroneous, and the reviewing court must give due regard to the trial court’s
opportunity to judge the witnesses’ credibility.”
In other words, higher courts are basically stuck with his
factual findings. They can dispute
what legal consequences flow from those facts; but it is now a formal finding
that Prop 8 promotes discrimination, that existing marriages are unaffected by
expanding marriage to include same-sex couples, that children will benefit if
same-sex couples can marry, that the state has no legitimate interest in
reserving marriage to same-sex couples, and that Prop 8 is best explained as an
improper intrusion of religious values onto a state function, which increases
bigotry and harms the LGBT community and the people in general.
In the past, opponents of same-sex marriage have relied upon
generalizations about the state’s interests. But in this case, each of those claims (including preserving
tradition, protecting children, promoting reproduction, and others) were put to
the test and, in legal findings of fact
that higher courts are bound to respect, were found to be completely
lacking in credibility. Quite
literally, opponents of same-sex marriage could come up with NO legitimate
basis for their position that stood up under scientific and legal scrutiny.
Of course, despite the strong legal position we are in now,
whether these careful factual conclusions will mean anything to certain
individuals with lifetime tenure is anyone’s guess. This is why the findings should be carefully read and retold
to the general public. Although
most marriage successes in this country have been in the courts, Vermont and a
number of foreign jurisdictions have embraced same-sex marriage through the
electoral and legislative process.
To the extent we hold out hope that reasoned argument can still have its
day in the US, especially pages 60-109 of Judge Walker’s decision [http://www.scribd.com/doc/35374462/Prop-8-Ruling-FINAL]
can be very helpful in clearly and methodically knocking down every argument in
opposition to same-sex marriage.
There are some great declarations of principle throughout his decision,
but advocates shouldn’t overlook the hard and useful work of the findings of
fact. Like when arguing with
someone who has watched too much Fox News, sometimes we have to spend time
dispelling the demonstrably false premise for their views.
This piece was
originally posted on the Peoples Law Blog [http://peopleslawblog.wordpress.com/].
