Hats Off For David Boies And Ted Olson

There are two meaty things to note about the opinion in Perry v. Schwarzenegger.  I've added a jump page if you want to get in to the two meaty things.  The ultra-short version -- the opinion sets out findings of fact, which according to the rules of appellate procedure must be treated with enormous deference later on, which virtually compel the result, and which are the result of an amazingly imbalanced showing at the trial.  The result is reason to be confident that this ruling is going to stick.  The balance of my lengthy post from last night reacting to Perry v. Schwarzenegger is below the jump.



First, it is a trial court opinion.  That means it's about facts and civil procedure.  And the first 108 pages of the 136 page opinion demonstrate that the contest of disputed facts was as lopsided as the 2009 New Orleans Saints playing full-throttle tackle American football against the Correspondence College of Tampa Junior Varsity Girls' Croquet Team.  Imagine the U.S. Army attempting to repel an invasion of bronze age refugees armed with pointy sticks and with rules of engagement along the lines of "Fire at will."  It's not even close to a fair fight.  If there's a single word that combines the verbs "obliterate," "annihilate," and "eviscerate,' that's what Olson and Boies did.  David Boies and Ted Olson utterly and completely obliterated the legal team representing the proponents of Proposition 8.  Consider:

The principal witness (singular) called by the proponents of proposition 8 at trial was David Blankenhorn.  Mr. Blankenhorn holds a bachelor's degree from Harvard in social studies and a master's degree from the University of Warwick (UK) in comparative social history.  He also founded an anti-SSM think tank.  His job at trial was to explain the historical and sociological implications of permitting same-sex marriage, and to offer evidence about the harm that would accrue to society in general and to opposite-sex marriages and childrearing as particular foci of that social harm.  His testimony to that effect is described thus:

Blankenhorn testified that California stands to benefit if it were to resume issuing marriage licenses to same-sex couples.  Blankenhorn noted that marriage would benefit same-sex couples and their children, would reduce discrimination against gays and lesbians and would be "a victory for the worthy ideas of tolerance and inclusion."  Slip op. 14:22-27.
Blankenhorn agreed with Lamb that adoptive parents "actually on some outcomes outstrip biological parents in terms of providing protective care for their children."  Slip op. 18:18-21.

That was Prop 8's star witness.

The only other witness called by the proponents was Claremont-McKenna professor of political science Kenneth P. Miller.  Miller's job was principally to offer testimony that gays and lesbians enjoy a substantial amount of political power.  Instead, he wound up testifying that gays and lesbians are significantly less powerful than religious institutions and labor unions, and that religious institutions and labor unions used their greater political power to get Prop. 8 passed.  What did the Court learn from Prof. Miller?

Miller did not know whether gays and lesbians have more or less political power than African Americans, either in California or nationally, because he had not researched the question.  Slip op. 51:20-23.
In 2001, Miller wrote that he was especially concerned that initiative constitutional amendments undermine representative democracy.  Slip op. 52:1-3.
Miller agreed that a principle of political science holds that it is undesirable for a religious majority to impose its religious views on a minority.  Slip op. 52:20-22.
Miller previously wrote that gays and lesbians, like other minorities, are vulnerable and powerless in the initiative process.  Slip op. 53:20-21.

Not called as a witness at all by the proponents of Proposition 8, because her testimony was so harmful to her own side, was Katherine Young, a professor of religious studies at McGill University, who holds a Ph.D. in that field from that institution.  Her task was to have been to explain the historical role of comparative religion in defining marriage as having always been limited to a relationship between a man and a woman.  In support of that, the following deposition testimony was noted by the Court after Olson and Boies entered it into evidence:

Young testified at her deposition that homosexuality is a normal variant of human sexuality and that same-sex couples possess the same desire for love and commitment as opposite-sex couples.  Young also explained that several cultures around the world and across centuries have had variations of marital relationships for same-sex couples.  Slip op. 36:27 - 37:4.

That's what we would call "counterproductive testimony," Prof. Young.  Similarly disastrous for the proponents of Prop. 8 was Paul Nathanson, who holds a Ph.D. in religious studies from, and is a post-doctoral researcher in religious studies at, McGill University (the same institution that produced Professor Young, described immediately above).  Nathanson's job for the case was to explain that religious institutions offer support to gays and lesbians, religious institutions were divided on the issue of same-sex marriage, and that religious institutions did not substantially motivate people to vote in favor of Proposition 8 based on prejudice against homosexuals based on irrational fear of gays and lesbians as somehow harmful to children.  The Court described Dr. Nathanson's testimony:

Nathanson testified at his deposition that religion lies at the heart of the hostility and violence directed at gays and lesbians and that there is no evidence that children raised by same-sex couples fare worse than children raised by opposite-sex couples.  Slip op. 37:9-13.

Remember, these were the witnesses whose job it was to defend the notion that marriage should only be between a man and a woman.  There are few times sweeter for a trial attorney than turning your adversary's expert against them, but Olson and Boies did that with every witness offered by Proposition 8's proponents.

Simply put, you can't win when all your experts wind up stabbing your side of the case in the back.  And that only happens when your expert lacks sufficient smarts to deal with a competent cross-examination and keep the polish on the turd you're trying to sell to the finder of fact.  These experts were not up to the task of fending off a cross-examination from some of the very best lawyers America has to offer.  Indeed, it seems they were not up to the task of debating the comparative merits of extra cheese versus pepperoni.

Against those puny advocates, debatably the best legal minds in practice right now arrayed a stunning and overwhelming cadre of sociologists, historians, economists, psychologists, political scientists, and a half-dozen well-presented gays and lesbians including two couples who offered convincing and touching statements about incidents of discrimination and the deep love they have for their respective romantic partners whom they very much would like to marry.  Although the Court is less clear on this point, it's readily evident from the absence of comment that the Prop. 8 lawyers didn't lay a finger on any of these witnesses at trial.

What the Prop. 8 lawyers did was to put all their eggs in the basket of arguing about the law rather than arguing about the facts.  This is a fine way to go when you're arguing before an appellate court but they seem to have forgotten that what was going on was a trial, and trials are about resolving disputed facts.  The Court had told everyone what the issues of fact were going to be well before the trial:

1. Whether any evidence supports California's refusal to recognize marriage between two people because of their sex.
2. Whether any evidence shows California has an interest in differentiating between same-sex and opposite-sex unions.
3. Whether the evidence shows Proposition 8 enacted a private moral view without advancing a legitimate moral interest.

The Prop. 8 lawyers simply didn't offer any evidence to tackle those issues of fact while Boies and Olson hit those issues dead center, and hit them hard, and hit them again and again and again.  The imbalance between the two sides' factual presentations appears to have been so pronounced that the trial looked more like a default prove-up hearing.

I hate to say that the result of this case was the result of poor lawyering.  Liberty Counsel, who wanted very much to argue in and participate in this case to defend Prop. 8 but got edged out by the Alliance Defense Fund, has come very close to saying that Alliance Defense Fund lost the case because of incompetence.  (Note to SSM supporters:  when your adversaries have begun to eat their own, that's a good sign.  Contrast that with the constructive criticism of the recently-released analysis of flaws with the "No on 8" campaign.)

I hate join Liberty Counsel in calling Alliance Defense Fund incompetent because 1) ADF has some pretty smart lawyers, even if I often disagree with them, and 2) I am at an absolute loss to imagine what facts I might try to offer, in a Federal court and mindful of FRCP 11, to justify a state's prohibition of same-sex marriage.  These lawyers and experts were faced with the task of defending the indefensible.  While in the abstract, I have some difficulty with Attorney General Brown refusing to defend an amendment to the state's constitution, I confess that were I in his shoes and tasked with doing this, I too would probably have to throw up my hands and say, "There's no principled way that can be done."  The remainder of this post is an explanation of why I would reach that conclusion.

The Prop. 8 defense at trial functionally abandoned all of the justifications offered for Prop. 8 during the political campaign, which may be condensed as follows: 1. keeping marriage between one man and one woman somehow "defends" or "preserves" marriage; 2. not letting gays marry protects children from some unspecified threat that turns out to be "turning the kids gay"; and 3. opposite-sex relationships are better than same-sex relationships.  Instead, they argued that the state has an interest in maintaining a traditional definition of marriage for the sake of tradition itself, in encouraging "statistically optimal" households for the rearing of children, and allows the voters of the state to express their preferences for how society is structured.  Bear those new and different arguments -- which you didn't hear at all during the campaign -- in mind and go back and read the proponents' testimony again.  As a matter of fact, those propositions are not supported by the evidence offered to justify them.

So that gets us to the legal issues, which is apparently where all the meat is to be found.  SSM opponents no doubt hate the fact that the Court examined the social and legal history of the doctrine of coverture, which has long since been abandoned in the contemporary view of marriage and in so doing truly has fundamentally altered the definition of what marriage is as a legal institution.  "Traditional" marriage was the union of one man and one woman into a single legal person, and that person was the husband.  More importantly, it did so in the late nineteenth and early twentieth centuries.  Until women's property laws were passed, common law held that a married woman could not enter into a contract on her own behalf, could not own property other than through her husband, could not get an education against her husband's wishes, or seek employment outside the home (and if she did, she was legally required to relinquish her wages to her husband on demand).  Conversely, she could generally not be held legally liable for her misdeeds because the law presumed that whatever she did, was done under the direction of her husband (inspiring the famous quip from Dickens that "the law is an ass -- an idiot").

The abandonment of coverture fundamentally changed what marriage was.  But it did not change the right to marry.  The judicially-led discarding of racial restrictions on the right to marry changed who could marry whom in a significant way.  But it did not change the nature of the right to marry.  There have never been any requirements about procreation or child-rearing associated with marriage in any state of the Union at any point in history. The basis of restricting the right to marry to those who select opposite-sex partners with whom to exercise that right are grounded in normative gender roles as embodied by coverture, social disapproval of same-sex relationships, and "the reality the vast majority of people are heterosexual and have had no reason to challenge the restriction."  Slip op. 112:28 - 113:2.  Thus, the court offers what are intended to be stirring words.

[T]he 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.  The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household.  Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.  Today, gender is not relevant to the state in determining spouses' obligations to each other and to their dependents.  Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law.  Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Slip op. 113:9-24.  Here, I must pause.  When you really, really like what someone says, it may well be time to put on your critical thinking cap.  Judge Walker calls many of the statements in the above-quoted paragraph findings of fact, and based on the grossly imbalanced facts presented to the Court, there is justification for him to do so. It leaves me feeling a bit like I do after an eviction trial against a self-represented defendant; yes, I think the right side won because I know full well that the claims of uninhabitability were only made after the tenant fell behind in the rent and are therefore strongly factually suspect, but the landlord represented by a lawyer is so much stronger in a court than an inarticulate tenant unaware of rules of evidence or procedure that the result can look to some like an injustice.

While I quite agree that such a time of enshrining gender and racial inequality in the law has indeed passed, I'm not entirely sure that it is up to a court to say so, or more importantly, to say that it is so important that it be so as to strike down a popularly-elected amendment to a state's constitution based upon a sociological observation.  What is more, voters might plausibly lament the sociological change in society and seek to use the law to reverse the trend.  I would hardly welcome a return to pre-feminist days, but it's not for me to impose my ideals about gender equality on all of society.  And the trial of fact that leads to the conclusions Judge Walker reaches was so breathtakingly imbalanced that I have to wonder if the matter simply needs to go back for another go-round, this time with competent counsel and competent expert witnesses on the other side, just so we can be sure about the correctness of the result.

Where I think Walker is on stronger ground is in his application of the rational basis test to look at Prop. 8.  Here, the arguments used in the campaign, the arguments offered at trial, or any other argument at all, can be used to justify a law.  In law school, we are taught that nearly any law can survive a rational basis analysis, but the trend is for a court to offer a somewhat meatier analysis of the purpose of a law to discern whether it really is rational or not -- in the sense that a law's justification must be based on a premise that is true, not merely plausible.  So it might be considered plausible that a child raised in an opposite-sex, two-parent home would have a better chance of being a well-adjusted adult later in life than one raised in a same-sex, two-parent home.  But as a matter of fact, that proposition was demonstrated at trial to be incorrect; even the witnesses offered by the proponents of that concept wound up subverting their own contentions.

So in the final legal section, analyzing Prop. 8 under the Equal Protections clause, the Court looks for some rational (meaning objectively factually true) relationship between disparate treatment of different kinds of individuals and the reason for treating them differently.  Unequal treatment, in other words, cannot be its own justification.  The only difference of any magnitude identified at the trial between a same-sex couple and an opposite-sex couple is that an opposite-sex couple can conceive a biological child through sexual activity (and sometimes can do so unintentionally) where the same-sex couple cannot conceive.  "Proponents did not, however, advance any reason why the government may use sexual orientation as a proxy for fertility or why the government may need to take into account fertility when legislating."  Slip op. 122:6-9.  As noted above and in a lot of other places. marriage is not and never has been about fertility; couples well past childbearing years have always been allowed to marry and there is not now any legal requirement that a married couple ever engage in sexual activity at all subsequent to marriage, nor has there ever been one.*

So six possible rationales for Prop. 8 were examined through this lens and all found wanting:

Does reserving marriage as a union between a man and a woman and no other relationship justify banning same-sex marriages?  No, because tradition alone does not justify maintaining a discriminatory law.  Preserving tradition, by itself, is not a rational reason to adopt a law, as a matter of law.  There must be some other reason.

Is a ban on same-sex marriages justified by caution with experimenting with fundamental social institutions?  The Court found, as a matter of fact, that all available evidence is that implementing same-sex marriage would benefit society in the form of greater governmental revenues, more wealth-building, more economic specialization, more stable environments for raising children.  Combing back through the supporting evidence, sociological data from other nations that have implemented same-sex marriage was used by the challengers' experts here.  So we can see that, for instance, Canadian civilization has not suffered at all because of its six-year history of same-sex marriage.  So fear of unforseeable adverse consequences is not a good  reason, either.

Can the state legitimately promote opposite-sex parenting over same-sex parenting?  No, because the facts as adduced in the trial demonstrate that there is no appreciable difference between opposite-sex parenting and same-sex parenting.  Again, practical experience demonstrates that same-sex couples are just as good as opposite-sex couples at raising children.  So this cannot form a rational basis for a ban on same-sex marriage.

What about "the First Amendment rights of individuals and institutions that oppose same-sex marriage on religious or moral grounds"?  They still can.  But the State of California cannot adopt a religiously-based discriminatory viewpoint simply because it is popular and those individuals and institutions who claim same-sex relationships are morally inferior to opposite-sex relationships remain free to do so even if the state issues marriage licenses to same-sex couples.  No private church was going to be forced to open its doors to same-sex marriages (churches that offer their facilities as rentals to the public, however, might be at risk, as I noted a year and a half ago); no (truly) private church or person would ever be able, consistent with the First Amendment, to be sued to prevent them from condemning same-sex marriages as immoral.

Then there was the issue that so motivated a lawyer friend of mine who I respect greatly and was baffled as to why he would buy into this argument -- "that's just not what marriage is."  The definitional argument is joined with arguments based on other jurisdictions (other states, the Federal government) defining marriage to exclude same-sex relationships.  But here, the court found facts to support a conclusion that "rather than being different, same-sex and opposite-sex unions are, for all purposes relevant to California law, exactly the same.  The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples."  Slip op. 130:23-27.

Finally, the court considered a "catchall," described as "Any other conceivable legitimate interests identified by the parties, amici, or the court at any stage of the proceedings."   But no such interest was ever articulated by anyone.  These were characterized as "nothing more than a fear or unarticulated dislike of same-sex couples."  Slip op. 132:6-7.  That sounds right to me, but without seeing any such argument pointed out by a proponent, it's hard for me to say whether the court got it right in so characterizing these unspecified "other conceivable legitimate interests."

Ultimately, the Court concludes with what ought to have been a simple concept, a proposition so fundamental to the rule of law in a free country that it ought not need articulation, much less designation as a section header in a published opinion:  "A private moral view that same-sex couples are inferior to opposite-sex couples is not a proper basis for legislation."

Disappointingly, Judge Walker also granted a stay of the execution of the opinion pending appeal.  Marriage licenses are not going to issue to same-sex couples in California just yet.  This case will go to the Ninth Circuit shortly, where the legal issues, which are the meat of the contest anyway, will be re-litigated, re-argued, and re-decided.  At least twice -- once before a panel of three appellate judges, and again before an en banc panel of eleven judges.  From there, it's certiorari to the Supreme Court.  I heard one report on NPR today that some experts are thinking the Supremes might just punt on this one and deny cert.  I doubt it, myself, but that's predicting the Super Bowl before the divisional playoffs are over.

What's really important here is that the underlying facts of the Perry v. Schwarzenegger case are overwhelmingly one-sided in favor of a Federal right to same-sex marriage and against Proposition 8.  Because the challengers to Prop. 8 kicked so much ass at the trial court level, they've got the legal equivalent of home-court advantage at every step of the future proceedings in this case.

To Messrs. Olson and Boies I can only say, "Well done."


* Failure to comply with a spouse's request for sex has been considered good grounds for divorce in some states and at some points in history, back in the days before no-fault divorce.  But you have to be married in the first place in order to get divorced from a frigid spouse unwilling to fulfill his "husbandly duties."