A Landmark Decision for a Landmark Case

Judge Vaughn Walker has issued his opinion in the Proposition 8 California same-sex marriage case, and it is truly monumental, both in scope and doctrine. The opinion thoroughly summarizes the evidence that was presented in opposition to the constitutional initiative, and it lays out a plentitude of legal conclusions in support of the effort to invalidate the amendment. Judge Walker concludes that the evidence presented by the opponents of Proposition 8 establishes the validity of their position, and he debunks the rhetoric and the flimsy evidence and arguments raised by those who seek to relegate same-sex couples to domestic partnership registration.
There are several aspects to the decision that are especially worth noting:
1. Judge Walker treats Prop 8 as just another form of law, without giving any special deference to it as a constitutional initiative resulting from a ballot box vote. The California Supreme Court was quite deferential to “the voters,” whereas this court concludes that if the law is unconstitutional, it doesn’t matter how it came into existence.
2. The opinion rests on both due process and equal protection grounds, and concludes that the law is based entirely on unreasonable premises. Thus, it is invalid — whether or not the court uses a low level or a high level of scrutiny.
3. The opinion devotes considerable attention to the underlying social issue of gender in marriage, concluding that gender roles no longer play any function in marriage, such that distinguishing between opposite-sex and same-sex couples makes no sense at all. Indeed, the Judge describes marriage as a union of equals, saying that “gender no longer forms an essential part of marriage.”
4. The opinion’s conclusion is not limited to the particular history of the California marriage equality battle — and so if it is upheld on appeal, it could lead to a nationwide opening up of marriage for lesbian and gay couples.
5. Judge Walker views the domestic partnership registration primarily as a vehicle for relegating lesbian and gay male couples to a second class status, and thus insufficient, even if it offers all of the technical benefits of marriage. The opinion talks about the importance of the “social meaning” of marriage, not just its bare legal technicalities.

The decision will certainly be appealed to the Ninth Circuit Court of Appeals, where a three-judge panel will initially make the decision. If enough of the justices say so, that decision will itself be reviewed by a larger panel of justices. Then, the losing side can ask the United States Supreme Court to review the appellate ruling — and that court can accept or decline to review the appeal. The appellate process could take anywhere from one to three years — and so it is possible that Proposition 8 could be reversed by the voters in November 2012, before a final decision is ever rendered.
But even if there is no final legal decision on this case, this ruling and the subsequent appellate rulings are important — both politically and legally — as they articulate the Court’s approach to these highly contested social issues. This is an influential Judge (as it happens, thought to be gay and Republican!).
Let’s hope that the next round of judges are as enlightened as Judge Walker appears to be.