Balkinization  

Wednesday, August 04, 2010

Turning a trial judge’s weakness into strength

Andrew Koppelman

The following appears today (in slightly edited form) on the New York Times Subject to Debate website, along with contributions from Kenji Yoshino and Eugene Volokh:


Today’s federal district court decision striking down California’s same-sex marriage ban may or may not be upheld on appeal. But it shows why it matters what district courts do, even though the Supreme Court will have the last word. That Court may uphold state bans on same-sex marriage, but the district court’s opinion will make that harder to do.

District Judge Vaughn Walker turned in a virtuoso performance, taking the obvious weaknesses of his position as author of an opinion that was sure to be appealed, and turning them into strengths.

District court conclusions of law always get examined anew by the appeals courts, first the federal Courts of Appeals and, if it can be persuaded to take the case, the Supreme Court. There’s no reason to feel confident that there are five votes on the Supreme Court to legalize same-sex marriage throughout the United States. (When I try to count the votes of which I’m sure, I have trouble getting to one.) District courts do, however, get to find facts. And appellate courts, because they don’t get to see the witnesses and assess their credibility, are supposed to accept the facts as the trial court found them.

So if the Supreme Court reverses the district court’s decision that same-sex couples have a right to marry, it will have to do it in the teeth of Walker’s factual findings that same-sex marriage is good for gay people and the children they raise (one out of five same-sex couples in California are raising children), that there are no discernible differences between same-sex and opposite-sex couples, that “domestic partnerships” offer fewer benefits than marriage and irrationally stigmatize same-sex relationships as inferior, that recognition of same-sex couples’ right to marry does no detectable harm to heterosexual marriages, and that the campaign for Proposition 8, which outlawed same-sex marriage in California, relied on prejudice and vicious antigay stereotypes, such as the idea that gay people are dangerous to children.

Judge Walker carefully avoided resting his holding on any controversial proposition of law, such as the idea that gay people should be regarded as a specially protected minority under the Fourteenth Amendment. Instead, he relied on law already laid down by the Supreme Court. He held that Proposition 8 lacked a rational basis, because the “facts” that were invoked in its defense were manifestly false. His job was made easier by the remarkable incompetence of Proposition 8’s defenders in managing their listed expert witnesses, most of whom never testified at all. An appeals court that wants to ignore his findings of fact – something that can be done only if the trial court’s findings are plainly erroneous – will find very little support in the record.

The Supreme Court gets to say what the law is. But it has to accompany its judgment with a reasoned opinion. I don’t envy the judge who has to write the opinion overturning Walker’s decision, while treating these findings of fact with the deference that is normally appropriate for appeals courts.

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