On August 4, US District Court Judge Vaughn Walker declared California’s Proposition 8 unconstitutional, a denial of equal protection of the laws and of the due process right to marry. Gay rights groups applauded anxiously. If Perry v. Schwarzenegger is upheld by the US Court of Appeals for the Ninth Circuit, it is almost certain to be reviewed by the Supreme Court. And the outcome there very likely turns on a single Justice’s vote—Anthony Kennedy’s. There are probably four votes to strike down Proposition 8—Justices Stephen Breyer, Ruth Ginsburg, Sonia Sotomayor, and Elena Kagan—but there are also almost certainly four votes to uphold it—Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. As is so often the case on controversial matters before the Supreme Court these days, everything turns on Justice Kennedy. Which way will he rule?
Same-sex marriage proponents have some reason for optimism. Kennedy wrote both of the Court’s most important gay rights decisions—Romer v. Evans, (1996) which struck down a Colorado referendum that barred adoption of laws banning discrimination on the basis of sexual orientation; and Lawrence v. Texas (2003), which overturned a Texas law making sodomy between same-sex partners a crime.
But there is also ground for anxiety. Justice Kennedy went out of his way in Lawrence to stress that whether a state could limit marriage to opposite-sex couples remained an open question. He is, generally speaking, a conservative judge, appointed by President Reagan, and while he has been a strong defender of First Amendment rights, he sides with his more conservative colleagues much more often than he votes with the Court’s more liberal faction.
As a result, gay rights groups had been consciously pursuing a strategy of challenging same-sex marriage bans only in state courts, using only state constitutional arguments, as a way of building precedent and avoiding a Supreme Court loss. If a state court declares a state law invalid under its own constitution, and does not address any federal legal issue, the Supreme Court cannot review the case. Gay rights groups thought that they would be better off litigating the issue incrementally, state-by-state, before taking it to the US Supreme Court. That strategy achieved an impressive string of victories, including favorable state court decisions in Connecticut, Massachusetts, Vermont, Iowa, New York, New Jersey, and California, and favorable legislative developments in several other states.
But when Californians voted to amend their own constitution to overturn the California Supreme Court’s decision upholding the right of same-sex couples to marry under state law, the only remaining ground for challenge was a claim that the law violated the US Constitution. Gay rights groups generally considered it tactically premature to mount that challenge; a loss in the Supreme Court could set progress back dramatically. But the unlikely duo of David Boies and Ted Olson, who represented opposite sides in Bush v. Gore, came together to bring a federal challenge.
Judge Walker’s 136-page decision is a strong first step in the right direction of recognizing the right of all couples to marry, regardless of sexual orientation. But prognosticating how it will fare in the Supreme Court is difficult. Two common maxims point in opposite directions. One says that cases are most often won or lost on the facts, not the law. If that’s true, the law’s challengers are on strong ground. Judge Walker devoted 109 pages of his opinion to detailed findings of fact, resting on the testimony of the challengers’ highly credible and well-respected expert witnesses—including the social historians Nancy Cott and George Chauncey, two economists, two psychologists, and a social epidemiologist—who debunked the various arguments that have been advanced in defense of banning same-sex marriage.
The historians showed that arguments from “tradition” fail to account for the changes in marriage that have occurred over time; like all social institutions, its definition has evolved. In particular, Cott showed that the opposition to same-sex unions is largely rooted in antiquated stereotypes about gender roles in marriage. The psychologists testified that there is no empirical basis to the claim that children fare better when raised by opposite-sex parents; that denying same-sex couples the right to marry will cause substantial stigmatic harm; and that sexual orientation is not amenable to change through intervention. The economists showed that granting same-sex couples the right to marry would benefit California’s economy, because married people typically live more efficiently and have fewer health problems than non-married people. The court dismissed the two witnesses who testified in favor of Proposition 8, finding that they lacked expertise and rested their opinions on mere assertion rather than sound research. Since appellate courts must defer to trial court factual findings unless they are clearly erroneous, these findings will continue to frame the case on appeal.
But the competing maxim is that the Supreme Court has never let the factual record get in the way of reaching its desired result. Examples are legion of the Court playing fast and loose with lower court records. Moreover, the district court applied a “rational basis” review: under that standard (the most deferential one that courts apply), a law must be upheld if a court can imagine any justification whatsoever for it—even if it has never been advanced by the government, much less supported by record evidence. Factual findings are substantially less important when such a standard governs, because no evidentiary support is necessary. The core issue in the case may be whether moral disapproval is a sufficient basis for refusing to bestow the state’s recognition of marriage on a same-sex couple, and that is ultimately a question of law, not fact.
Still, there are special reasons why facts are likely to matter here. Facts are, after all, the most powerful antidote to prejudice, fear, and stereotype. The expert testimony demonstrates that the fears that motivated Proposition 8—fears about harm to children or the undermining of the institution of marriage—are empirically unfounded. The court’s factual findings expose those arguments as the canards that they are.
In my view, however, two facts outside the formal confines of the district court’s findings are likely to play the most significant role in the Supreme Court’s decision, and both support the ruling of the district court. The first is the reality of social acceptance and legitimacy created by the gay rights movement over the past generation, as gays and lesbians have come out of the closet, and as state after state has officially recognized that same-sex couples can have long-term committed relationships that are of the same value to the society as opposite-sex couples. In particular, the success of gay marriage and gay civil unions at the state level illustrates that there is no basis to the concern that the institution of marriage will somehow disintegrate if gays and lesbians are allowed to marry.
Second, the recent history of the Court’s about-face on sodomy statutes is likely to play a role. In 1986, in Bowers v. Hardwick, the Court appealed to tradition and “Judeo-Christian” condemnation of homosexuality to uphold Georgia’s criminal ban on sodomy. But just twelve years later, seemingly embarrassed by its own precedent, the Court reversed Bowers and ruled that there is no good reason for the state to interfere in the private sexual relations of consenting adults, particularly where it interfered only with the rights of same-sex couples. The Court abandoned a history of prejudice for a principle of tolerance and respect for equal rights.
If and when Perry v. Schwarzenegger reaches the Supreme Court, the history of Bowers and Lawrence will be fresh in the Justices’ minds. If they were to uphold California’s ban on same-sex marriage, it would be only a matter of time before that decision, like Bowers, would be reversed, dismissed as a narrow-minded error out of keeping with the best of our constitutional principles. The question for Justice Kennedy and the rest of the Court, in other words, will be whether they want to be on the right side of history.