I was thinking about writing about something a little lighter today like song titles and the first amendment. However, I came across another interesting little New York Times article that veered me back to the serious side of the law.
The big news last week was the overturning of Prop 8, which effectively strikes down the same-sex marriage ban in California. After a nearly five-month wait Judge Vaughn Walker delivered a 136-page decision in the case of Perry v. Schwarzenegger. In the decision, Judge Walker found that California’s voter-approved ban on same-sex marriage irrationally discriminates against gay men and lesbians.
Here are a couple of key quotes from the decision available here:
“Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect”
“Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective 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.”
What struck me about the New York Times article that I read earlier entitled “In Same-Sex Ruling, an Eye on the Supreme Court” is the eventual fate of Perry v. Schwarzenegger. Obviously the fate of the case and same-sex marriage rights are far from over, and we all know that this is all headed to the Supreme Court – an even more interesting wrinkle considering the Kagan nomination also took place last week. And don’t forget that the Ninth Circuit will also get a chance to weigh in on the matter.
According to one expert “if the Supreme Court does not want to uphold same-sex marriage, its job has been made harder by this decision.” This is due to the fact that appeals courts will often overturn lower-court judges on their findings of law, but give more deference to findings of fact. And according to the article, Judge Walker’s decision, “lays a rich factual record, with extensive quotation of expert testimony from the lengthy trial.” Also, according to Constitutional expert Erwin Chemerinsky – dean of the law school at the University of California, Irvine – Judge Walker took a conservative approach to his findings of law, making it much harder for the Supreme Court to potentially overturn the decision.
Further, Judge Walker invoked a pretty easy standard – rational basis review – and the law still didn’t pass constitutional muster. He could have analyzed the law through the harsh “strict scrutiny” standard that many laws fail. He found that Proposition 8 didn’t meet a rational basis review for the legal distinction between same-sex marriage and heterosexual unions according to Professor Chemerinsky and further that gays and lesbians are the type of minority strict scrutiny was designed to protect
However, there are others who feel that the Supreme Court is not quite as constrained by the factual record and don’t seemed too concerned about the rational basis review standard invoked. To many, it seems like too much of a stretch for this Court to hand down a sweeping decision that could overturn same-sex marriage bans across the country.
Regardless, according to the Huffington Post Walker offered a variety of findings that may be as important as the ruling itself. Among them were the following:
“Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.”
“Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.”
“Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.”
“Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.”
“Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive.”
“The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.”
“Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.”
Whatever the outcome, it will definitely give us some insight into the minds of our two newest Justices – Elana Kagan and Sonia Sotomayor.
Beach Boys label after Katy Perry’s “California Gurl”
 Prop 8, Rational Basis, and the SCOTUS … oh yeah, and Edward Chemerinsky too
 Proposition 8 was passed by California voters in November 2008.
 Andrew Koppelman, a professor at Northwestern Law School