Judge Walker and the Comeback Kids: How the Gays Beat Prop 8

Judge Walker overturned Prop 8 on Wednesday and so we’ve called in our Legal Beagle Jessica to explain the nuts & bolts to ya. Like wtf is a “stay,” right?

In the past, Jessica has explained what Massachusetts’ ruling on DOMA means, the implications of having Elena Kagan on our supreme court (and now she is! so you should probably read that again) and initially began writing for us during the Prop 8 trial to answer our questions w/r/t How Do We Win This Thing?, What is Equal Protection? as well as basically briefing us on Prop 8 Trial 101.

All photos are from the rally in San Francisco in the Castro District after Prop 8 was overturned on August 4th, 2010.

You Might Win Some But You Just Lost One

So what did Judge Walker actually decide? As you may recall, during the Prop 8 trial Team Totally Right was laying the evidentiary groundwork to make three arguments:

1. Proposition 8 violates the fundamental right to marriage as embodied in the due process clause.

2. Proposition 8 violates the equal protection clause because it discriminates based on sex.

3. Proposition 8 violates the equal protection clause because it discriminates based on sexual orientation.

To be invalidated Prop 8 only needs to be unconstitutional for one reason. However, Judge Vaughn Walker found that it is unconstitutional for all of these reasons.

According to Judge Walker, Proposition 8 “unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.” Within his analysis of the equal protection argument, Walker acknowledges that discrimination based on sexual orientation can take the form of discrimination based on sex, but explains that it is ultimately a separate claim.

So although he writes about sexual orientation discrimination, he notes that the arguments would be just as effective if considering the laws with regard to sex discrimination.

Judge Walker on The Fundamental Right to Marriage

Both sides agree that the right to marriage is fundamental; the dispute on this issue centered upon whether the couples comprising Team Totally Right were simply seeking to exercise this fundamental right or seeking recognition of a new right (by virtue of being same-sex couples).

After considering the essential characteristics of marriage (two people giving their free consent to form a committed relationship, which then forms the foundation of a household wherein the people agree to support each other and their dependents), Judge Walker concludes that marriage is marriage, regardless of the “relative gender composition” of those involved. Team Totally Right is not requesting the recognition of a new right, they just want that old ordinary right to marriage.

Since that old, ordinary right is a fundamental one, any law that burdens that right must be supported by a really good reason — the government must produce evidence that the law is “narrowly tailored to a compelling government interest.” According to Judge Walker, “the minimal evidentiary presentation” made by the H8ers just didn’t cut it. They didn’t demonstrate a compelling government interest in limiting marriage to opposite-sex couples, and in the absence of such a demonstration, Proposition 8 violates the Due Process Clause (which protects fundamental rights). The law must fall.

Judge Walker on The Equal Protection Of The Law

Despite its name, the equal protection clause does not require that the laws treat everyone equally. Instead, generally when the government passes a law that treats different people differently, the court presumes that the law is valid and will uphold it as long as the law is rationally related to some legitimate governmental interest. However, when the differing treatment is based upon membership in a “suspect class” (like race or gender) then the law will be scrutinized more closely.

During the trial, Team Totally Right advanced two complementary arguments under the equal protection clause:

1 – Proposition 8 discriminates based on sexual orientation and that sexual orientation is a suspect class warranting some degree of heightened review

2 – Even if the Judge didn’t find sexual orientation to be a suspect class warranting heightened scrutiny, Proposition 8 discriminates based on sex, and laws that discriminate based on sex are subject to heightened scrutiny

Judge Walker agrees on all points. He finds that “sexual orientation discrimination can take the form of sex discrimination” and that the two are inherently interrelated, but that sex discrimination is only one component of sexual orientation discrimination. Because Proposition 8 only eliminates the rights gays and lesbians seek to exercise, he makes the ruling based on sexual orientation discrimination, but notes that the claim is “equivalent to a claim of discrimination based on sex.”

Walker explains that the evidence presented at trial demonstrates that gays and lesbians are the type of minority that strict scrutiny review intends to protect. Among other things, he references the fact that sexual orientation is immutable and not generally something people choose, gays and lesbians have faced a long history of discrimination, discrimination still exists, irrational stereotypes persist and these stereotypes have resulted in social and legal disadvantages.

Ultimately, however, he finds that the arguments for heightened scrutiny are unnecessary, because Prop 8 cannot pass even the lowest level of review, rational basis. “Excluding same-sex couples from marriage is simply not rationally related to a legitimate governmental interest.” The H8ers claim six “legitimate” interests; Judge Walker doesn’t accept any of them. Again, without any legitimate governmental interest, the law cannot stand.

In a conclusion that might make your heart weep with joy and warrants reading even if you’ve already seen it, Judge Walker succinctly explains:

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

If I Gave You Peaches Out of My Own Garden and I Made You a Peach Pie

So you’re a rockstar reader and already knew all of that? Good job. Gold stars for you. Those are just the highlights of the opinion, though. The true legal story goes a bit deeper. Beyond the actual words of the opinion (which are admittedly awesome), there are two aspects of the opinion that make it especially special.

First, conventional wisdom suggests that any decision on the matter at the Supreme Court will come down to the opinion of Justice Anthony Kennedy. This may or may not be true, but presumably, Chief Justice Roberts and Justices Scalia, Thomas and Alito will be against us, while Justices Ginsburg, Sotomayor, Breyer and Kagan(!) will automatically be on our side. We’ll need five Justices, though, so all eyes are on Justice Kennedy. As Dahlia Lithwick of Slate explained it, the opinion reads a little like a love letter to Justice Kennedy. Walker quotes liberally from Romer v. Evans and Lawrence v. Texas, two opinions Justice Kennedy authored. He focuses on the importance of liberty, a concept that some have suggested sits at the center of Justice Kennedy’s jurisprudence. The opinion was clearly written with the knowledge that the decision may come down to Kennedy’s opinion.

That said, conventional wisdom about the Supreme Court is sometimes wrong. Judge Walker also quotes from Justice Scalia’s dissenting opinion in Lawrence, where Scalia noted that “If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’?” As Lawrence established that moral disapproval of an act is insufficient to warrant upholding a law prohibiting the practice, perhaps Scalia is just waiting to cast his vote in favor of the gays. It could happen. [It won’t happen.]

Second, it’s worth noting Judge Walker’s clear, strategic divisions between findings of fact and conclusions of law. Walker wrote this opinion with the intention that it withstand review.

When an appellate court reviews the decision of a lower court, the lower court’s legal conclusions are given essentially no deference. However, the factual findings are given significant deference; an appellate court can only set aside a factual determination if the factual determination is clearly erroneous. The credibility findings are subject to even higher deference.

Knowing this, Judge Walker created an incredibly detailed factual record, featuring 80 distinct findings of fact. Among other things, he noted the following:

+ Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children or otherwise affect the stability of opposite-sex marriage.

+ Individuals do not generally choose their sexual orientation.

+ Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group

+ Prop 8 places the force of law behind stigmas against gays and lesbians, including that 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.

The appellate court will be required to contend with these meticulously crafted factual findings. With such a pointed factual record, the appellate court will likely find it difficult to reach legal conclusions contrary to those of Judge Walker. This is not to suggest that the decision can never be overturned on appeal. It can and it very well might be. Judge Walker has done everything that he can to ensure that it won’t be, though.

What Happens Now?

Before the opinion was released the H8ers filed a motion to stay the judgment. Essentially, they requested that the effect of the ruling be put on hold until the Ninth Circuit has a chance to rule on the case. After releasing the opinion on Wednesday, Judge Walker granted a temporary stay, giving Team Totally Right time to respond to the H8ers request. He’ll make a final decision on the longer-term viability of the stay early next week.

Even if Walker chooses not to grant the stay, he will likely give the H8ers time to request an emergency stay from the Ninth Circuit. In essence, this means that the H8ers have several opportunities to prevent marriages from resuming immediately.

While this issue is being resolved, though, the H8ers are already looking forward to the next round. On Wednesday, they filed a Notice of Appeal. One more reminder that, although this was certainly a victory for Team Totally Right, it is but a step in the process and we still have a long way to go.

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Jessica has written 16 articles for us.


  1. “This is not to suggest that the decision can never be overturned on appeal. It can and it very well might be. Judge Walker has done everything that he can to ensure that it won’t be, though.”

    Aw, now i want to buy him a sparkly robe for this.

    • maybe we will title it “Top 10 Cookies” next time or “Romi’s Real L Word Strap-on Sex.”

      • AHAHAHAHA or how about “Newsflash: Taylor Swift H8ers Enjoy Strap-on Sex With Your Favorite Cookies. Plus Lindsay Lohan. Plus Prop8.”

        comments, AHOY!

  2. Congrats to the Religious Right! Judge Walker has given them what they have been clamoring for….a decision based solely upon the facts presented in open court and upon the Federal Constitution EXACTLY as it was written!

  3. Thank you for this most totally awesome breakdown, Jessica. I feel confident enough now to have a discussion about it with my we’re-still-not-quite-comfortable-with-you-being-gay parents. They have A LOT of questions.

    • Happy to help.

      I make my awesomely-supportive-but-still-not-quite-comfortable mother read every article I write. Each time, I honestly feel like she understands a little bit more about the importance of true equality and she gets a little more comfortable with the fact that I am gay. (Despite her absolute and unconditional love and her abstract support of gay rights, she’s still working on the understanding part).

      Good luck with the questions.

      • I think I should maybe take this tack with my girlfriend’s parents (I won the parents lottery because mine Totally Get It). Except for maybe copy-pasting it rather than linking them to Autostraddle – I could see them getting click-happy and thinking, “What does NSFW mean?”

  4. i wish i could do something for this article to show my love and appreciation for it, like buy it a balloon or a cupcake

    • Not as much as you wish it would.

      Normally, when someone is challenging the constitutionality of a state law, the state is responsible for defending the law. In this case, Schwarzenegger and Brown opted not to defend the law — at which point the Protect Marriage folks requested (and were granted) the ability to intervene and take up the cause.

      So, in this case, Schwarzenegger and Brown are essentially acting on our side already. The motion that they filed isn’t going to be any more persuasive or relevant (likely) than the one that our attorneys filed. I think the hearing on the motion to stay is next Tuesday, so we’ll have a little more news soon.

  5. The most interesting part of this was about Justice Kennedy. I had never thought the whole thing out that far.

  6. I wonder if the H8ers have a lower education level on average than citizens supporting us? I don’t want to sound elitist, but that would make me understand why political rights took such a long time to be extended to all parts of the population (at least in Europe), where the ones excluded were also the uneducated.

  7. Hi Barbara,

    I totally understand your desire to try and make some sense of what seems like a collective societal fuck you and the gay horse you rode in on. So I have a little bit of experience in this area…you know apart from being a homogay myself. What I mean is I have thought about and studied this topic a bit as a sociology graduate student, mostly for the geeky lulz so please correct me if I’m wrong.

    The answer to your question in short is: yes, people with some or no college education are more likely to be opposed to same sex marriage.

    However, I think more importantly it is religious folk (particularly evangelicals, who are often better educated than other super religious folks) and old people (who are often less educated, plus, you know, from another era). These two groups generally speaking have a lot of feelings against the same sexiness entering marital bliss. (And if I’m not wrong I think Autostraddle may have written about this at one time, but I’m too lazy to look it up.) You can see some of the breakdown from a 2009 Pew report here: http://pewforum.org/Gay-Marriage-and-Homosexuality/Majority-Continues-To-Support-Civil-Unions.aspx

    So also interesting and related to your education question is a 2003 Pew report (http://pewforum.org/PublicationPage.aspx?id=647) that says for those over the age of 30 education increases (up to three times! for the 65+ crowd) your likelihood to support same sex marriage. Also, someone ring the cultural progress alarm ‘cause education makes no difference for those under 30. I, for one, am hoping in my homo heart it’s because it’s becoming normalized.

    Also interesting in the 2003 report is that the older folks aren’t necessarily just opposed to it on moral grounds, but rather they are worried about whether or not the gays will be happy and will be able to care properly for children. They also are less likely to actually know any gays. I think this is an absolute generational thing, wherein these folks just straight up have old fashioned ideas about gender roles, parenting, etc. So you know what that means: Next time Grams has a bridge party, invite yourself over and bring a few seasons of the L Word, a Melissa Etheridge cd, and a nesting lesbian parenting duo with their adorable queerspawn.

    For those people who are very religious and are going ape shit I can kinda understand it in so much as their entire world view and understanding of the world is based on a traditional family, which is fundamentally based on the division of labor/society along gender lines (they call this “complementary” vs. egalitarian). Same sex marriage (apart from being icky to them: anal sex!) strikes a deadly blow to this strict gender division, calling into question not only their religious beliefs but also their entire identity as a woman or a man. I mean imagine if tomorrow some scientist came along and said “I have an army of scientific proof that all gender attributes are biological”. I would lose my social science shit all over that guy and be a foaming at the mouth crazy. But that is because I care about the issue.

    This brings me to my next point. Apart from the fact that this is an increasingly hot topic and there are many lovely allied heteros fighting for what is arguably the civil rights battle of our generation against opportunistic conservative politicians, not that many people care or know enough about it. Yes, when asked in a survey someone will report an opinion, but they don’t report how invested they are in that opinion. A very small group of people have A LOT LOT LOT of feelings about this issue (that would be us and the religious groups). Everyone else is just trying to live their lives and isn’t educated on the issue. Hell I’m overly educated and interested in politics, but don’t have the time to learn about my local elections. I think when a lot of these people who generally have never thought about this subject or don’t know someone who is gay walk into a voting booth and are asked a question like “Do you think traditional marriage is between a man and a woman” they probably go “um, yeah. Hasn’t it always been like that” or if they’ve been mislead like during prop 8 they go “oh shit, I’m down with gary and bobby next door, but Jesus effing Christ I don’t want my daughter getting taught about the homogay in school?! And/or become the homogay?!?”. And I think that sentiment is borne out of the combination of two things: First, you don’t have to be a member of HRC to know that there is a general stigma and homophobia that exists in society that does result in LGBT folk being treated differently and discriminated against. Second, the religious right playing into a parent’s desire for the best for their children and for them to have a life free of discrimination.

    So what I’m really trying to say is: there are a small group of people who are hateful dicks, but a lot of these other people are just otherwise good people who are products of our homophobic society wherein same sex relationships are unimaginable and/or they are good people whose completely legitimate concerns about the well being of their children or grandchildren are being twisted, manipulated, and sadly welded onto their low level homophobia. I’m not saying they get a free pass to forgiveness town, but I am saying that most people are generally good people and we need to step up the game to cut through the religious right’s bullshit. Apparently knowing people who are gay makes a huge difference, so who knew that whole visibility thing was the key. Anyway, history and demographics are on our side…oh and arguably two of this century’s best lawyers (this is what my lawyer brother says). Wooo!

    One last thing that keeps me warm at night and I promise I will shut the hell up as most of you probably already knew this stuff but I found it cathartic so tough noogies: I remember being in undergrad in MA (at a women’s college, natch) when Vermont’s supreme court ruled in favor of civil unions. It was a HUGE deal, the religious right were losing their minds. Now, groups opposed to same sex marriage actually advocate for civil unions as the alternative to same sex marriage.

    One way or another we’re gonna get all frocked up and then hitched up.

  8. “Everyone else is just trying to live their lives and isn’t educated on the issue. […] I think when a lot of these people who generally have never thought about this subject or don’t know someone who is gay walk into a voting booth and are asked a question like “Do you think traditional marriage is between a man and a woman” they probably go “um, yeah. Hasn’t it always been like that” or if they’ve been mislead like during prop 8 they go “oh shit, I’m down with gary and bobby next door, but Jesus effing Christ I don’t want my daughter getting taught about the homogay in school?! And/or become the homogay?!?”. And I think that sentiment is borne out of the combination of two things: First, you don’t have to be a member of HRC to know that there is a general stigma and homophobia that exists in society that does result in LGBT folk being treated differently and discriminated against. Second, the religious right playing into a parent’s desire for the best for their children and for them to have a life free of discrimination.”

    I felt the need to quote this, I agree: I think every parent wants the best for their kids and it’s just about ignorance. Take my case: overall I think my parents are good people and we always got along ok; sometimes I even think they overdid it in trying to help me in my projects but they just won’t accept the fact that I’m a lesbian and I think it’s a mix of ignorance and wanting the best for me like they’ve always done. I also think they are particularly sensitive to the issue for their own personal story (I’ve always thought both of them have repressed homo inclinations that they’ve never faced, and I think them not accepting me has a lot to do with them not accepting themselves); besides, it doesn’t help that where they live there’s no homo in sight.

    But in a way, this is certainly good news because humanity has never stayed stupid for a long time in history; I mean, with highs and lows, steps up and back, but the general trend is headed towards progress and understanding. The problem might be, how long this will take? How many blows can we take? We are human and short-lived, and I’m sure all the gays and history who stayed in the closet and ended up marrying someone of the opposite sex and being unhappy had quite negative views of the future: they weren’t like “this will happen sooner or later” but “this will never happen in my lifetime and probably in my children’s children lifetime” – and they were right.

    So yeah, I might feel kinda lucky I wasn’t born in the 12th century but I know for a fact that people born today or in the next ten years will have it much, much easier than I did. Which makes me kind of wonder about the meaning of life but that’s another story.

    • I understand where you are coming from with the ignorance thing, but I think it’s something more than just an unawareness or lack of education because that assumes that once properly introduced that ignorance will wane. I think that people generally walk around with a fundamental understanding of the world and for a lot of people that understanding does not include same sex relationships. So that when this common sense understanding of how things work is confronted with something which doesn’t have a place in their schema it’s hard for them to believe it or accommodate it as something that is real or possible. It’s hegemonic, yo. I mean I generally walk around the world assuming that everyone I meet (unless they have an alternative lifestyle haircut, obvi) is straight. This is not the only way I could approach the world. I could instead assume that everyone I meet is gay or at least bi-curious (hawt!). The key is to find something that is in their range of normal/natural understanding (marriage as between two loving people) and piggy back your message on it (same sex-ers can be in a loving, long term relationship).

      You obviously know your parents best, but I think the lack of any other examples of gays and lesbians near them is definitely not helping the case. Is there a PFLAG near them? Maybe you could secretly sign them up for the newsletter for your state. Would they be mortified? ;)

      As far as history goes, I too like to think things generally move in a progressive direction and get better, but in actuality this is not necessarily always the case, nor does it have to be. We must be vigilant against back sliding and fight tooth and nail for every little inch. It’s hard to achieve radical social change without instituting reeducation camps, which totally got a bum rap (JK!). I mean think of it this way you can carry on the grand tradition of rocking slowly on the porch telling young whippersnappers how easy they got it and you had to walk uphill in the homophobia snow both ways! So, uh, take solace in your role in this great transition ’cause it’ll give you mad props with the youngins?

      Also, it’s hard to remember this but our understanding/conception of homosexuality is a fairly recent invention and has been conceived of in many different ways through out time. so don’t feel too bad for those in the 12th century (though I’m sure they had it not so great, what with the hygiene issues of the time). We just have to live our lives and lend a hand in pushing this ole barge in the right direction. Yeah, I just compared America to a boat. So I guess that means I’m on a boat!

      Anyway, not sure if that helps the existential dilemma and stuff, but at least there’s autostraddle’s NSFW Sunday! Wooooo! Boobies will make it all better, right? RIGHT!

  9. What more should one expect from an organized horde of miscreants who insist on using their reproductive organs in a manner other then prescribed.

    You folks do so deserve your pervert handle.

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