“Facts are Stubborn Things” – The Value of Judge Walker’s Decision

Judge Vaughn Walker

Judge Vaughn Walker

Judge Vaughn Walker’s decision Wednesday overruling Proposition 8 on due process and equal protection grounds was everything that marriage equality supporters could have hoped for. But despite all the exuberance, everyone knew that appealing the case was only a matter of time – and the U.S. Supreme Court would have final say.

Walker’s legal analysis argued that “strict scrutiny” was the standard for laws that discriminate against gays and lesbians, but said that Prop 8 even failed the more lenient “rational basis” test. All along, however, we knew that Walker’s opinion wouldn’t matter – higher courts can always disagree, and the opposition had long counted on losing at the trial level.

But the 138-page ruling matters a great deal now because of its first 109 pages – “findings of fact” that cannot be reversed on appeal. Appellate courts can override what a trial judge says on matters of law, but on questions of fact he or she is the arbiter. This was the first gay marriage case to have a full-blown trial, allowing the court to rule on 80 questions of fact that can go a long way to protect equality as the case gets appealed.

Judge Walker’s arguments on why Prop 8 violates due process were particularly helpful, because he couched it within the context that gay couples just want to join the institution of marriage – which courts have repeatedly said is a fundamental right. “Plaintiffs do not seek recognition of a new right,” he wrote on page 114. “To characterize [the] objection as ‘the right to same-sex marriage’ would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy – namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.”

On the equal protection grounds, Walker effectively argued that trial testimony proved that same-sex couples are a suspect class – which puts laws like Prop 8 that discriminate against them to a higher “strict scrutiny” standard. But knowing that a higher court may not agree, he concludes that Prop 8 fails even the “rational basis” test – and adequately debunked all possible rationales. “Many of the purported interests identified by proponents,” he wrote on page 132, “are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Prop 8.”

All of which are sound legal conclusions – but irrelevant if a higher court can reverse them. What the Ninth Circuit and the U.S. Supreme Court cannot do is overrule findings of fact and credibility judgments that Walker made in the first part of his ruling. And it’s those eighty facts – “stubborn things,” as Ronald Reagan called them – that cannot go away. Even if higher court judges have different opinions, the factual findings are there.

Past gay marriage trial decisions were made on summary judgment – where the parties did not contest questions of fact, and judges were asked to simply rule as a matter of law. Here, the Prop 8 litigants had a full-blown trial for two weeks – where our side produced a stellar line-up of expert witnesses who convincingly made the case that Prop 8 violated the 14th Amendment. Homophobia was on trial, and when faced with the facts the opposition had nothing to say. All but two of their expert witnesses withdrew.

What factual findings did Judge Walker make, after weighing the evidence heard at trial?

Fact #44: Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. For years, the debate as to whether gays and lesbians are a “suspect class” that entitles them to a strict scrutiny analysis hinges on whether we believe a person’s sexual orientation is immutable. By listening to both sides argue that question, Walker has made a finding of fact that it is indeed something we cannot change. I’d love to see Scalia challenge that.

Fact #58: Prop 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. In Romer v. Evans (1996), the U.S. Supreme Court overruled an anti-gay initiative in Colorado because sheer animus is not a rational basis for discriminating against a group of people. Again, a higher court can disagree with Walker’s legal conclusions – but not his facts.

Fact #79: The Prop 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. Even if a higher court disagrees with Walker that discrimination against gays must pass strict scrutiny, Prop 8 must still be based on articulable reasons that are rationally related to a legitimate state purpose. The Prop 8 campaign ran fear-mongering ads that relied on deep prejudices – appealing to the voters’ worst instincts.

You can read all 80 findings of facts – from pages 54 to 109 – in Judge Walker’s ruling here.

Many gay advocates – myself included – were deeply skeptical of pursuing this case in the federal courts, knowing full well that a conservative U.S. Supreme Court could set back marriage equality for decades. But what taking this case to trial – rather than expedited summary judgment hearings – allowed us to do was to set up a factual framework, which cannot be reversed on appeal. And for that reason, I am more optimistic now that I was six months ago that justice will prevail.

Paul Hogarth

Republished with permission from BeyondChron.


  1. linda says

    If it is true that sexual identity is “not something that we can change”, then how is it that there are so many people who were formerly gay and currently are not, having “changed”. Please reply to e-mail if possible. Is it possible there are factors, crisis,
    trauma etc in a person’s life that “cause” him to gravitate to a gay lifestyle and sincerely identify with it for a period of time.
    How can one be “sure” one is permanently gay?


  2. Marshall says

    Dear Judges;
    Those who suggest there is a “Separation of Church and State” clause in the US Constitution have some small flaws in their thinking. First, the word “separation” does not appear in the US Constitution. The words separation of church and state did appear in a letter written by one of our Presidents to a church pastor. It is often taken out of content because who reads all those letters from Jefferson to that pastor? Jefferson is thought to have been non-religious, yet Jefferson held church services in government buildings, such as the White House, Congress held services in the capitol, and even the Supreme Court held Sunday services in the court building. Look at all the religious symbols on the Supreme Court structure. It appears our founders supported all religions but did not favor one religion over another and services for all were held. Our founders knew the governments in Europe had state religions and did not want a state church for America. We do take a oath when testifying in courts.

    If a separation clause is somehow found, why do proponents consider it a one way clause when it should be a two way clause that prohibits each from interfering with the other? The complaints always claim the church is trying to influence the state and never that the state is trying to influence the church. If the state were to tax the church, everyone can see that could lead to the state control of the church. Once, the church may have been able to influence the state, as they did during our revolution (the Black Robe Brigade). Church membership is now at a lower percent of the population but that population is much larger than the gay population. A pastor telling members to vote a certain way would not determine an election outcome.

    I feel one religious topic is currently a problem for a small minority of our population. They seem to have a preference for the term marriage over civil unions. My gay child would be happy with a secular union with all the legal rights of a marriage but gay activists will only settle for a gay marriage even though the union would be more attainable. It seems if civil rights were the goal of gays, they would accept civil unions.

    If the federal government finds or creates a “Gay Marriage” clause in some section of the Constitution, then the state will have altered the laws of the church. The word marriage appears in the Bible 19 times and appears in the Constitution zero times. It does not seem to me that there is a federal Constitutional right to marriage for anyone, it is a religious right managed by the states. If any of the states or the federal government support gay marriages outside of the church, then the state will have crossed over the line and would be changing what are now religious marriage rules and will be creating a civil marriage.

    I feel this is a states rights issue and gay marriages are going to be a thumb in the eye to all of the religions of America. We can support the civil rights of the few gay citizens by creating a civil union to be used by anyone, those with or without religious affiliations.

    The US should remain secular and pass a federal secular civil union law, which would be used by all states to grant the same legal rights of church marriages to gay or non gay civil unions without using the word marriage. I assume non religious civil unions would be structured as to not allow concurrent multiple unions.

  3. says

    Good argument, hope it plays out at SCOTUS. Justice Kennedy will make the call in the end, no doubt. Meanwhile, we have some elections to win, or face filibusters at the next court openings, or worse.

    • Marcel Kincaid says

      “Justice Kennedy will make the call in the end, no doubt.”

      Kennedy wrote the majority opinion in Romer v. Evans, joined by Stevens, O’Connor, Souter, Ginsburg, and Breyer.

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