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Thursday, August 5, 2010

Prop. 8 Ruling: Literature and Strategy

Posted By on Thu, Aug 5, 2010 at 8:45 AM

click to enlarge Judge Vaughn Walker
  • Judge Vaughn Walker

The multitudes who took to the streets yesterday to either celebrate or denigrate Judge Vaughn Walker's ruling overturning Prop. 8 in many ways resembled the millions of tipplers worldwide who lift a glass on Bloomsday -- but would never dream of reading Ulysses.

Now, James Joyce ain't for everybody. But Walker is. In addition to being an incredibly powerful legal document that higher courts will not be able to easily dismiss, the judge's ruling is, quite simply, well-written. Believe us -- we've read it. It's a lot easier to get through than Joyce.

click to enlarge Judge Vaughn Walker
  • Judge Vaughn Walker
It's worthwhile for readers to actually pore through Walker's ruling -- available here -- because only then will they realize how thorough a drubbing of the pro-Prop. 8 forces this was. The judge expends page after page detailing the failures of the foes of same-sex marriage to make the case that allowing gays and lesbians to marry will, somehow, hurt society or the institution of marriage -- and, therefore, must be stopped.

The defense was lazy: Even after it became clear the trial would not be broadcast live, a handful of witnesses who'd had qualms about this were not called to testify. The two witnesses the defense did manage to get into court came off as cowardly, buffoonish, unqualified, and disingenuous. Stripped of their lame testimony, same-sex marriage foes were largely left with only the Tevye argument -- "Tradition!" Not good enough, said Walker:

Proponents' argument that tradition prefers opposite-sex couples to

same-sex couples equates to the notion that opposite-sex relationships

are simply better than same-sex relationships.

Tradition alone cannot legitimate this purported interest. Plaintiffs

presented evidence showing conclusively that the state has no interest

in preferring opposite-sex couples to same-sex couples or in preferring

heterosexuality to homosexuality. Moreover, the state cannot have an

interest in disadvantaging an unpopular minority group simply because

the group is unpopular.

The evidence shows that the state advances nothing when it adheres to

the tradition of excluding same-sex couples from marriage. Proponents'

asserted state interests in tradition are nothing more than tautologies

and do not amount to rational bases for Proposition 8.

Same-sex marriage foes' post-ruling lamentations about "one man and one woman" and the "will of the people" come off as somewhat odd: Those are the very issues this lengthy trial delved into and the defense failed to make its case on. These complaints seem to ignore the fact that a trial even occurred. In a way, they hark to an athlete claiming that his team was the superior side -- yet ignoring that he lost on the field of play.

While Walker's ruling may be easy to read, it will not be so easy to undo. A higher court attempting to defuse the tightly packed wires of this decision may well have that effort blow up in its face.

The ruling is composed of both "findings of fact" and "conclusions of law" -- and as many legal analysts have pointed out, while higher courts can disagree with Walker on matters of law, his "findings of fact" cannot be easily overturned. There are 80 -- 80! -- findings of fact in this ruling, taking up 55 pages. Among them:

Proposition 8 places the force of law behind stigmas against gays and

lesbians, including: gays and lesbians do not have intimate

relationships similar to heterosexual couples; gays and lesbians are

not as good as heterosexuals; and gay and lesbian relationships do not

deserve the full recognition of society.



Proposition 8 campaign relied on fears that children exposed to the

concept of same-sex marriage may become gay or lesbian. The reason

children need to be protected from same-sex marriage was never

articulated in official campaign advertisements. Nevertheless, the

advertisements insinuated that learning about same-sex marriage could

make a child gay or lesbian and that parents should dread having a gay or lesbian child.

click to enlarge gay_rainbow_wedding_cake.jpg
As legal scholars Joan Hollinger and Courtney Joslin both pointed out to SF Weekly yesterday, it is noteworthy that Walker felt that Prop. 8 was subject to "strict scrutiny" -- the highest level of Constitutional review -- but ruled that the proposition also failed the "rational review" test -- the lowest level. If a higher court buys Walker's "strict scrutiny" argument, it's doubtful Prop. 8 will be deemed Constitutional. But by applying only "rational review," Walker's conclusions aren't shattered even if subsequent judges don't feel "strict scrutiny" is merited.

Finally, the most salient analysis may have been made by Slate's Dalia Lithwick. She points out "seven citations to Justice [Anthony] Kennedy's 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas' gay-sodomy law)." Kennedy is the swing vote on the John Roberts Supreme Court -- and 15 citations of his own rulings make it hard for him to disagree with himself.

If victorious lawyer Ted Olson is correct and Walker's decision "will be taught in law schools," then future attorneys could certainly do worse. The ruling is cogent, compelling, and -- at 136 pages -- only a quarter the length of Ulysses

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About The Author

Joe Eskenazi

Joe Eskenazi

Joe Eskenazi was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. "Your humble narrator" was a staff writer and columnist for SF Weekly from 2007 to 2015. He resides in the Excelsior with his wife, 4.3 miles from his birthplace and 5,474 from hers.


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