Facts Machine

Here's the only really striking thing about Judge Vaughan Walker's opinion in Perry v. Schwarzenegger: Its 136 page length includes 108 pages of facts -- 108 pages of dry, straightforward, meticulous, and ordered citations to the evidence in the trial.

It might be easy for a layperson to misunderstand that. This is not a sexy opinion. There are no rhetorical fireworks, no forging of new and creative legal theories, no soundbite-worthy quotes, and not a trace of grandstanding. This is a very competent and workmanlike opinion from a trial court judge who was doing his job.

That job is to (1) allow both sides ample and fair opportunities to present the facts in the dispute; (2) determine which are the most credible and relevant facts, given the existing law on the subject; and (3) apply those facts to that law in order to reach a decision about which side should prevail.

Mission accomplished.

Most people will focus on this as a legal opinion, but that isn't its strength, and it shouldn't be. Trial judges are primarily there to gather the facts, not theorize about the law. Despite temptations from some excellent lawyers who know their way around the caselaw, Judge Walker didn't accept any offers to kick the tires on novel and edgy legal theories. Instead, he relied on longstanding federal constitutional law - specifically that old workhorse, the Fourteenth Amendment -- and applied it in the most modest way possible, using the most generous standard available to the proponents of Prop 8: they only had to show that there was some rational basis for the voters to distinguish between same-sex couples and opposite-sex couples. Any rational basis would do.

The proponents had every opportunity to build their case over the many months of discovery, depositions, witness-preparation and actual testimony at the weeks-long trial. Virtually all of their evidence is laid out in those 108 pages of facts.

And it isn't much. In fact, at one point one of their lawyers simply said they shouldn't have to present evidence, shouldn't have to come up with actual facts to support their case.
Contrast that with the plaintiffs challenging Prop. 8, who brought forward a small battalion of witnesses, both civilians and experts, introduced what we can only imagine to be millions of pages of documents and depositions, hours of video and taped recordings, and enough motions, counter-motions, memoranda and oppositions to memoranda to - well, to win their case.

And in a nutshell, that's where we now stand as a nation on the issue of same-sex marriage. Those of us who support same-sex marriage not only believe we are right, we are making that case based on evidence in the world around us. Those who oppose same-sex marriage deeply believe they are right and have always been right, and have a very hard time comprehending that they actually have to defend themselves. Where is the need for evidence, for facts?

But what they have historically taken for granted is now in question. Yes, marriage has always been understood as being between one man and one woman (with biblical polygamy confusing this simplicity), but why? What is it about marriage that makes it an unsuitable - to some, an unimaginable - legal and social institution for same-sex couples?

During all those centuries when no one asked these questions, no one ever needed to answer them. But we are asking the questions now. And under the rules that govern our country - under the constitution - we have charged the courts with providing the forum to provide the answers.

Judge Walker's opinion does exactly that, and not a thing more. He opened the court - our court - to both the proponents of Prop. 8 and its challengers, and let them do the best they could to answer the questions we may not have asked in centuries past, but have a profound need of asking now.

Anyone can read those 108 pages (though few will), and find little to criticize there. The only criticism from same-sex marriage opponents will be the bottom line, the conclusion that there really isn't a rational reason, today, for the law to treat heterosexual couples as a favored class over homosexual couples.

Perry v. Schwarzenegger lays out all the reasons offered, and each one erodes under the steady drip of the evidence that was presented. In the end, all that is left is fear and superstition about homosexuals. Those are things that can motivate voters, but the constitution does not credit them as justifications for the law.

22 Comments for “Facts Machine”

  1. posted by TS on

    This ruling is unconstitutional, illegal, and a disaster.

    Okay, so 108 pages of the opinion were facts. Whatever. A wrong idea is a wrong idea whether it is explained in one word or 5 volumes. It is painfully obvious that this judge was informed by his personal biases (he is suspected of being gay himself) in reaching this decision, as part of a heady mixture with overeducated fancy law bunk. The federal constitution says that all issues not directly addressed by it are to be left to the states or to the people. Federal statute (DOMA) says that the federal government doesn’t recognize gay marriage. The federal supreme court said that the federal constitution is silent on the topic of marriage.

    It has been illegal for state constitutions to countermand the federal constitution since the civil war (also a dumb thing, but not on topic here). But the California state constitution as rewritten by its unwashed throngs does not countermand the federal constitution as articulated by the legislative branch and as interpreted by the judicial branch.

    The ruling is a disaster because it is wrong according to a plain reading of the constitution. The idiots will hate us no matter what the elitists in the media, hollywood, and the judiciary try to get them to think. This ruling has lost us the sensible moderates, the people who are trying to work out how they feel about gay marriage and sexual minorities in general, and who look at our actual behavior as a factor in the ultimate judgment. We will be cheering in the streets celebrating this obviously incorrect ruling, gleefully shoving in the faces of our opponents that we have managed to conquer democracy again.

    This will set us back 10 years, until the eventual inevitable demographic tide washes away those who could have been persuaded by civic good sportsmanship and reasonable persuasion addressed to their rationality. And 10 years worth of gay people can’t get married.

    Let me be clear. Gay marriage is good. It is one of the many changes that need to be made to the traditional institution of marriage if it is to survive, much less thrive, in the future. But California’s constitution was written so to be amendable by its Joe the Plumbers and Betty Sue Bucktooths. We should have been protesting one or more of three things- we could have protested the fact that CA’s constitution was so vulnerable to idiots in the ballot box, the fact that people do not understand what a good idea gay marriage is and why it is fair to reform civil partnership to include all, or we could have protested our autocratic federal government and the fact that it prevents us from seceding and expressing our political will through smaller states (the City-State of San Francisco, the Principality of Fire Island). Not suing the state so that a sympathetic but foolish judge could openly defy the oath he took to hand us an empty victory.

    We must have rule of law! It is the only thing preventing us from turning into Iran and all getting strung up by our trendy scarves. And the rule of law means objecting to unfair treatment through the proper channels with relentless efforts of persuasion, reason, and model behavior.

  2. posted by BobN on

    During all those centuries when no one asked these questions, no one ever needed to answer them. But we are asking the questions now.

    If you look back centuries, people have asked the question and had it answered with marriage. Don’t concede the entirety of the past.

    TS, the people of the State of California CANNOT amend the state constitution in a way which disagrees with the federal constitution. If a state could do that, they’d be banning Islam all across the Bible Belt.

  3. posted by Bobby on

    How do judges find the time to write 136 pages? Do they have interns that do most of the heavy lifting? Can’t these people ever be brief? No wonder Nancy Pelosi said we have to pass the health care bill to know what’s in it. Seriously, 100 page opinions and 2,000 page bills is not the way government should run.

  4. posted by Jimmy on

    “Seriously, 100 page opinions and 2,000 page bills is not the way government should run.”

    If it were left up to you, it would all get done on an Etch A Sketch.

  5. posted by Jorge on

    Stopped at the trial testimony so far, but it is not dry!

    Despite this response, proponents in their trial brief

    promised to “demonstrate that redefining marriage to encompass

    same-sex relationships” would effect some twenty-three specific

    harmful consequences. Doc #295 at 13-14. At trial, however,

    proponents presented only one witness, David Blankenhorn, to

    address the government interest in marriage. Blankenhorn’s

    testimony is addressed at length hereafter; suffice it to say that

    he provided no credible evidence to support any of the claimed

    adverse effects proponents promised to demonstrate.

    Ouch!

  6. posted by Bobby on

    “If it were left up to you, it would all get done on an Etch A Sketch.”

    —Typical progressive, you attack the argument with ridicule. What’s ridiculous is voting for bills congressmen admit to not reading! Seriously Jimmy, you have that Obama arrogance oozing from your entire body. I ought to call you Eau d’Obama or Smell of Obama, the cologne for Marxists. Later, davarish.

  7. posted by jpeckjr on

    The competence of the defense (the Yes on 8) side is an aspect of this case that needs to be considered. I’ve read the ruling and I see Judge Walker being critical of the defense for its failure to make their case effectively. All the public bluster from the Yes on 8 side is about how Walker is wrong. But, for their sake, I hope someone on that side is talking about getting a better legal team.

    I support marriage equality and am pleased with the ruling. But my sense of fairness is troubled by the incompetence of the defense. If in this high stakes matter that was the best they could find, well, maybe they don’t want to win. How devastating it would be to their fundraising if this ruling is overturned by the Supreme Court!

  8. posted by BobN on

    How do judges find the time to write 136 pages?

    Of course they have staff. But more to the point, 136 pages of a legal decision is a lot less text than you’d think. First of all, it’s more than double-spaced and there are wide margins and space for citation references. It probably boils down to a third as long for normal printing, if not less.

    More importantly, more than half of the decision lists findings of fact from the trial which CANNOT be overturned, much of it to do with the utterly demolished claims by the Yes on 8 folks. You wouldn’t want a builder to put an addition on your house without a strong, solid foundation. You don’t want judges making decisions without one, too, especially when the ruling is going to be appealed to the SCOTUS.

  9. posted by BobN on

    But, for their sake, I hope someone on that side is talking about getting a better legal team.

    The ADF is the pre-eminent legal organization in the country, at least as far as anti-gay trials go. Their defense was incompetent because their legal reasoning is faulty. Their string of successes in other states has also come to a halt as the country has slowly become aware of the bogus nature of their “expert witnesses”. The same folks, Blankenhorn, Rekkers, Gallagher, etc., who helped get anti-gay trial decisions in the past, are now seen as the incompetents they’ve always been. The lipstick is still on the pig, but her mascara is running and everyone can see she’s wearing a cheap hairpiece.

    It’ll be interesting to see if some right-wing powerhouse attorneys are willing to step up to the plate and assist in the appeals. Maybe some former Senator with a law degree will do it. Santorum maybe? Either way, the case that will be appealed will be the same case with all its incompetence intact.

  10. posted by Bobby on

    Thanks for explaining, BobN.

  11. posted by Jorge on

    I support marriage equality and am pleased with the ruling. But my sense of fairness is troubled by the incompetence of the defense.

    Let me play a Devil’s Advocate on this.

    The defendants are government officals of the state of California. They did not mount a defense. The “defense” you cite are identified as proponents in the decision. This is a novel situation in which a referendum-type thing is not defended by the government charged with enforcing it. This causes certain money problems when it comes to mounting a legal “defense.” Another weakness inherant on the proponents’ side is the lack of serious academic research by conservatives. Social science research is considered objective, but it’s dominated by people who lean heavily liberal. The institution shuts out people who lean conservative, or whose studies reach conservative conclusions.

  12. posted by Jimmy on

    “Another weakness inherant on the proponents’ side is the lack of serious academic research by conservatives. Social science research is considered objective, but it’s dominated by people who lean heavily liberal. The institution shuts out people who lean conservative, or whose studies reach conservative conclusions.’

    As if there were liberal or conservative conclusions.

    This reminds me of an evangelical site ran across once that had to do with “ministering” to Unitarian Universalists. It emphasized that evangelicals need to be on their toes because UUs were usually smart, what with the reading all of those books and such.

  13. posted by Jorge on

    Anyway, I’m done reading it, and I do find very little to criticize in comparison with that Massachussets Supreme Court decision. Perhaps because this is the decision of a trial court on largely based on those matters of fact rather than law. It is a brilliant decision.

    I do not like the judge’s crediting expert testimony that in the United States, “civil law, as opposed to religious custom, has always been supreme in regulating and defining marriage in the United States.” [Italics mine.] This decision states unequivically that we cannot simply legislate morality. There must be some actual reason to do so. We must have at least some confidence of being right that doesn’t refer circularly back to that moral principle. These two adverse findings stand very strongly.

    “An initiative measure adopted by the voters deserves great respect.

    The considered views and opinions of even the most highly qualified

    scholars and experts seldom outweigh the determinations of the

    voters. When challenged, however, the voters’ determinations must

    find at least some support in evidence.”

    So be it!

    There’s some really interesting reasoning in this decision that I strongly agree with.

    The evidence did not show any historical purpose for

    excluding same-sex couples from marriage, as states have never

    required spouses to have an ability or willingness to procreate in

    order to marry. Rather, the exclusion exists as an

    artifact of a time when the genders were seen as having distinct

    roles in society and in marriage. That time has passed.

    And finally, a fair attack (which I don’t agree with) on leaving Domestic Partnerships. This idea that marriage is defined and decided by the state…

  14. posted by Throbert McGee on

    But my sense of fairness is troubled by the incompetence of the defense.

    I’m more troubled by some of the risibly contrived hardships that David Link, in his generosity, credits as “evidence”:

    [Gay plaintiff] Zarrillo described an instance when he and Katami went to a bank to open a joint account, and “it was certainly an awkward situation walking to the bank and saying, ‘My partner and I want to open a joint bank account,’ and hearing, you know, ‘Is it a business account? A partnership?’ It would just be a lot easier to describe the situation —— might not make it less awkward for those individuals, but it would make it —— crystalize it more by being able to say ‘My husband and I are here to open a bank account.’”

    Is it a business account, a partnership, a floor wax, or a dessert topping?

    [As-Seen-On-TV pitchman voice] “Still using that old-fashioned colander to drain water from spaghetti? UGH, WHAT A MESSY NIGHTMARE!”

    This isn’t factual evidence that the plaintiffs presented; it’s an overwrought testimonial about how bad your life used to be BEFORE you discovered the miracle of Meatavegavitamins™, the BeaDazzler™, or Chipotlaway™.

    Or maybe it’s a Seinfeld routine (“What’s the deal with ‘egg whites,’ anyway? I mean, they’re not white when they’re still in the egg; wouldn’t ‘egg transparencies’ be a more honest name for them?”).

  15. posted by David in Houston on

    TS: Why did the Supreme Court overrule the will of the people (70%) when it found bans on interracial marriage to be discriminatory? Marriage is a state’s rights issue. So why did they interfere in something that the government has no business in dealing with?

  16. posted by Debrah on

    The findings listed cannot really be characterized as facts.

    They’re mostly conclusions drawn by Judge Walker.

    While those conclusions drawn might be correct, there’s a big difference between legal conclusions and facts.

    The facts of this case would be things like, “Proposition 8 was passed on this date or that date.”

    Or “Under current California law, same-sex couples have certain rights, but cannot be granted marriage licenses.”

    Only some of the findings on the list are facts.

    It’s true that California doesn’t have a requirement that couples seeking marriage licenses must be able to reproduce.

    Whether something is a fundamental right is not a “fact” that higher courts will be required to recognize……..especially in a case like this.

    The 9th Circuit and the Supreme Court have never recognized such issues as fundamental rights.

  17. posted by Jorge on

    This isn’t factual evidence that the plaintiffs presented; it’s an overwrought testimonial about how bad your life used to be BEFORE you discovered the miracle of Meatavegavitamins™, the BeaDazzler™, or Chipotlaway™.

    I agree, but once you accept the proposition, as this judge does, that marriage is by definition something decided by the state, you can take social condemnation and status as a tangible benefit or penalty.

  18. posted by TS on

    @David in Houston: Also for misguided political reasons. Rather than do their jobs, they decided to do the right thing.

    This is not the judiciary’s function! Bad laws must be enforced harshly, so that people realize they are bad laws and make the government do right.

  19. posted by BobN on

    I do not like the judge’s crediting expert testimony that in the United States, “civil law, as opposed to religious custom, has always been supreme in regulating and defining marriage in the United States.” [Italics mine.]

    Why not? It’s the case. When has civil law ever been subordinate to religious law in the U.S.?

    And, Debrah, a “finding of fact” at trial means that based on the evidence provided at trial something either is or is not true. In theory, you can have a “finding of fact” at a trial which is not, in reality, true.

  20. posted by Jorge on

    I do not like the judge’s crediting expert testimony that in the United States, “civil law, as opposed to religious custom, has always been supreme in regulating and defining marriage in the United States.” [Italics mine.]

    –Why not? It’s the case.

    Am I supposed to enjoy being spanked, BobN? It’s an adverse ruling to me. I see it the other way and am contradicted by someone who knows what she is talking about and credited in the trial.

    When has civil law ever been subordinate to religious law in the U.S.?

    This is a statement about culture, not law. Of course civil law is supreme.

    Funny you should ask, though, I saw an example just today on the O’Reilly Factor:

    http://www.thefoxnation.com/justice/2010/08/06/sharia-law-comes-new-jersey

    “A New Jersey family court judge’s decision not to grant a restraining order to a woman who was sexually abused by her Moroccan husband and forced repeatedly to have sex with him is sounding the alarm for advocates of laws designed to ban Shariah in America.”

    The decision was, fortunately, overturned.

  21. posted by Jorge on

    Perhaps I should explain it better.

    I interpret the expert’s testimony to mean that in US history, the primary way by which marriage is defined culturally is to mirror whatever it is that is in the law, rather than to mirror a definition from some other kind of source (religion). Change the marriage law, and you change the very definition of marriage. My own belief is that personal and traditional views of what marriage is should be the supreme decider, socially and culturally, of what marriage is, regardless of what the law happens to say. And then over time people will rewrite the law to conform to that reality.

    This testimony and this decision say in large part that, while sociological trends in gender and child-rearing inform the court what a marriage is, the social stigma attached to gay marriages is a result of the prejudicial law, not just the prejudicial society.

    I can’t say it perfectly, but this comes close to my thoughts on the matter.

  22. posted by Lymis on

    “Whether something is a fundamental right is not a “fact” that higher courts will be required to recognize……..especially in a case like this.

    The 9th Circuit and the Supreme Court have never recognized such issues as fundamental rights.”

    Marriage as a fundamental right has already been recognized by the US Supreme Court. In the Loving case. As Judge Walker said, one of the questions before him was whether the plaintiffs were asking for a new right to something called same-sex marriage, or the recognition of their right to be included in the existing institution.

    Whether marriage is a fundamental right, however, is no longer something for lower courts to decide. That’s settled.

    Walker determined and ruled that marriage equality does not involve the construction of a new right, but the recognition that the existing fundamental right cannot be validly denied to LGBT people, or their choice to form same-sex couples.

Comments are closed.