Judicial and Political Process in Proposition 8 [Updated]

Within a generation, at most two, gay marriage will be a widely accepted part of the social fabric.  Within three generations, our era will seem as historically quaint with respect to gay marriage as the era before women could vote now seems to us.  In that sense, conservative-beat Washington Post reporter Dave Weigel was onto something in his May 1st tweet that landed him in trouble.  But he overreached, as he later acknowledged, in calling current opponents of gay marriage “bigots.”  That overreaching is a cautionary theme in my review of Judge Walker’s holding that Proposition 8 violates the Fourteenth Amendment to the United States Constitution.

Proposition 8 – which 52.5% of California’s voters supported on November 5, 2008 – says simply: “Only marriage between a man and a woman is valid or recognized in California.”

I tentatively believe Judge Walker erred, as a matter of constitutional law, because I do not believe same-sex marriage is a fundamental liberty for due process purposes or that homosexuals are a protected class for equal protection purposes.  But these are close questions and I may change my mind when I study the constitutional analysis applicable to this case.  This post focuses instead on judicial and political process.

As I’ve written before, I believe gay marriage is a political matter, to be won incrementally in political arenas – and I personally believe it should be won politically, for many of the reasons set forth in Judge Walker’s encyclopedic 138-page opinion.

The legitimacy thus conferred upon gay marriage by political success (i.e., legislative and popular will) – even if it takes a little longer – starkly contrasts with the inevitable strife unleashed by judicial fiat contrary to the express will of the people (twice, in California’s case).  The United States Constitution does not properly resolve all grievances, even legitimate ones – and a measure of judicial modesty may actually aid the political effort to redress the grievance.

I reach that conclusion reluctantly.  It is impossible to read Judge Walker’s account of the gay plaintiffs’ testimony and not be moved by their sincerity, their pursuit of normal comfort with the larger society, their experiences of discrimination and bigotry, and their legitimate claim to equal respect and dignity.

It is then impossible to read the carefully rendered summations of expert testimony without disgust at the historical bigotry against gays, disgust at some of the grotesque and painful slanders perpetrated against gays in parts of the Proposition 8 campaign, and finally, disgust at the puny defense mounted on behalf of Proposition 8 in Judge Walker’s court – a defense, taken at face value, that makes you wonder how a majority of California’s voters, the same voters who handed Barack Obama an extraordinary 24% margin of victory (61.01% to 36.95%), could have been so stupid and benighted?

And that’s exactly part of my problem with the opinion.  No person with a modicum of legal training can come away from reading Judge Walker’s opinion and believe that any “adversary process” meaningfully occurred in this case.  Reasonable minds can differ about the result, the legal analysis, and the factual findings – but no one can seriously maintain that this case was adjudicated in the American tradition of dueling advocates.

The efficacy of our judicial system is driven by the adversarial process – the presumptive commitment of both sides of a dispute to proffer their best legal and factual arguments, and the adjudicator’s wisdom, thus illuminated by argument, to decide the correct application of law to the instant facts.  Whatever else happened in Judge Walker’s courthouse during the adjudication of Perry v. Schwartzenegger, it was an aborted instance of the adversarial process.  The actual State of California defendants capitulated – indeed, Attorney General Jerry Brown expressly “conceded” that Proposition 8 was unconstitutional, and his “admissions” were liberally wrapped into the Findings of Fact.

Intervenors into the lawsuit – California citizen activists who promoted Proposition 8 – did their amateur inept best, I guess, with two “experts” – one who was judiciously “allowed,” then disqualified (but only after detailed excoriation), and the other who was, after a blistering analysis, held entitled to “little weight” — versus four very sympathetic plaintiff-witnesses, four very sympathetic lay witnesses, and nine expert witnesses.  At times, pronouncements, admissions, and shoulder-shruggings of the Intervenors appear to be calculated to assist the Plaintiffs.  Of course they weren’t – but quite plainly, this was an adjudication far less searching of contrary understandings than should ever happen in a court of law – especially over an issue of this constitutional magnitude.

Judge Walker’s opinion fairly overwhelms with factual findings – about homosexuality and its biology and determinacy, about the cultural history of same-sex relationships, about same-sex relationships and children, about relative gay community powerlessness, about the inferiority of domestic partnership rights, etc. – all that appear indisputable, given the ineptitude of the adversary and what must have been, given Judge Walker’s renderings, aggressive cross-examinations of Intervenors’ expert witnesses versus evidently no meaningful cross-examination at all on the other side – in other words, a failure of the adversary process.

I happen to agree with most of the factual findings – but the issue is whether the findings emerged from a meaningful adversarial process, not how personally agreeable they may be.

The failure of any functional adversarial process here has precedential implications that cut both ways.  On the one hand, factual findings, on appeal, are much harder to challenge than legal conclusions.  Judge Walker has done a clever job of buttressing what are, essentially, legal conclusions, with multiple, ineptly-challenged factual findings.

On the other hand, as an instance of Fourteenth Amendment adjudication, the searing extent to which Judge Walker faults the advocates of Proposition 8, both in his court and in their political campaign, makes Perry v. Schwartzenegger an easily distinguishable precedent – one characterized by an errant campaign and inept advocacy.  In other words, the opinion persuasively condemns one side of a local tempest – not necessarily the case against constitutional recognition of gay marriage.

That is not to fault Judge Walker’s opinion as a persuasive roadmap – but the roadmap is through the political process, not the Fourteenth Amendment.

The gay community and its supporters fairly celebrate a victory in this case – but it is not necessarily a victory that bodes well long-term either legally (as precedent, for the reasons noted above) or politically.

If the decision survives appeal – or more broadly – if gay marriage is effectively legislated by the courts, then the gay marriage “debate” will become a protracted and polarized wedge issue for decades – much like abortion.  But unlike the abortion debate in the aftermath of judicial fiat (who’s to hate? women? fetuses?), the gay marriage debate will, I fear, cause a spike in anti-gay sentiment.

If Judge Walker’s findings about anti-gay sentiment are true, then pockets of that anti-gay sentiment will only grow more virulent in the teeth of judicial dictate – of an unelected oligarchy plucking gay marriage out of the domain of democratic deliberation.

A political process that yields electoral consensus over time drains the ideological animus.  It is easier for Americans to yield to political loss, to reconcile, if grudgingly, to the fact that more people support the other side, than it is to yield to one person, a federal judge, or three appellate judges, or even nine Supreme Court judges, reversing a political victory and resolving the issue not within, but despite, the democratic process.  That’s the formula for competing camps of Americans, for generations, to war over judicial nominations.

Roe v. Wade has come close to reversal in this generation.  Slightly alter certain political and personality variables, and it would have happened.  Conversely, I don’t believe it can seriously be doubted that, left to the states, all or nearly all would have legalized abortion by now – and importantly, nearly all Americans would be reconciled to it as a legitimate political fact, if not a personal moral acceptance.  We are nowhere near that acknowledgement of legitimacy now.

To come full circle, I said at the outset that gay marriage would be an accepted part of the social fabric within one generation, at most two generations:  one generation as a political success; two generations as a judicial fiat.

This is one price of constitutional immodesty and impatience.

UPDATE (August 11, 2010): Jonathan Rauch is a gay man in a gay marriage who advocates on behalf of gay marriage and has written a book about why gay marriage will be good for America.  His op-ed in today’s New York Daily Post is quite remarkable: he concludes essentially as I do above, but more succinctly and with a persuasive Burkean framing.  I commend it to you.

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