Next Steps in Prop H8 Challenge, Our Equality

So yesterday was an amazing day, wasn't it? But hey, it ain't over yet. An appeal was just filed to take the case to the Ninth Circuit Court of Appeals, the federal appellate court that handles all federal suits in the Western region (including California AND Nevada).

And of course, we all know where this will end up. And this morning, The LA Times offered some good news on our chances with The Supremes.

At least some legal experts said his lengthy recitation of the testimony could bolster his ruling during the appeals to come. Higher courts generally defer to trial judges' rulings on factual questions that stem from a trial, although they still could determine that he was wrong on the law.

John Eastman, a conservative scholar who supported Proposition 8, said Walker's analysis and detailed references to trial evidence were likely to persuade Supreme Court Justice Anthony M. Kennedy, a swing vote on the high court, to rule in favor of same-sex marriage.

"I think Justice Kennedy is going to side with Judge Walker," said the former dean of Chapman University Law School.

Barry McDonald, a constitutional law professor at Pepperdine University, said Walker's findings that homosexuality was a biological status instead of a voluntary choice, that children didn't suffer harm when raised by same-sex couples and that Proposition 8 was based primarily on irrational fear of homosexuality were "going to make it more difficult for appellate courts to overturn this court's ruling."

Ultimately, it may all come down to just one person, just one judge who will one day hold the fate of LGBTQ equality in his hands.

Two decisions in the past two decades, however, have effectively reversed Bowers [v. Hardwick, the 1986 decision that upheld state anti-sodomy laws]  and could well impact the gay marriage debate as cases from Massachusetts and now California wind their way through the system.  First, the 1996 decision in Romer v. Evans invalidated Colorado's constitutional Amendment 2, a measure passed by referendum which precluded "all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships."

Justice Kennedy's 7-2 majority opinion recalled Justice Harlan's dissent in Plessy that the Constitution "neither knows nor tolerates classes among citizens." (Justice Scalia, citing Bowers, of course dissented.) Citing the Equal Protection clause of the 14th Amendment, Kennedy struck down the Colorado provision and rejected the "special rights' language of its proponents:

The State's principal argument that Amendment 2 puts gays and lesbians in the same position as all other persons by denying them special rights is rejected as implausible...Even if, as the State contends, homosexuals can find protection in laws and policies of general application, Amendment 2 goes well beyond merely depriving them of special rights. It imposes a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection from injuries caused by discrimination in a wide range of public and private transactions.

Kennedy, also citing the Equal Protection clause, similarly rejected the notion that the State had a compelling interest or legitimate legislative end in enacting Amendment 2:

In order to reconcile the Fourteenth Amendment's promise that no person shall be denied equal protection with the practical reality that most legislation classifies for one purpose or another, the Court has stated that it will uphold a law that neither burdens a fundamental right nor targets a suspect class so long as the legislative classification bears a rational relation to some independent and legitimate legislative end...Amendment 2 fails, indeed defies, even this conventional inquiry...Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or discrete objective. It is a status-based classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.

In the 2003 Lawrence v Texas case, the Court in a 6-3 decision invalidated the prosecution of two men under a Texas sodomy statute and reversed Bowers altogether. Again writing for the majority, Justice Kennedy overturned Bowers on both privacy and due process grounds:

Bowers' rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of "liberty" protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled.

If that language sounds familiar, it should.  Looking at Judge Walker's decision Wednesday in the California Proposition 8 case, Slate's Lithwick noted, "I count--in his opinion today--seven citations to Justice Kennedy's 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas' gay-sodomy law)."

If Justice Anthony Kennedy sides with us, we win. Simple as that. That's why Boies and Olsen have presented arguments that seem to go along with Kennedy's legal reasoning, and why Judge Walker cited so many of Kennedy's opinions yesterday. They know who will be crucial to win over in the coming months.

But for now, we must wait to see what happens next in the Ninth Circuit. This will most certainly drag out through the rest of this year and into the next, and we don't even know yet when marriages will resume in California. But without a doubt, this is great news and new hope for so many of us who have felt hopeless with the otherwise lack of progress on our civil rights in DC.

And this most certainly has implications far beyond the California state line. Even if the case succeeds on a narrow basis that just strikes down Prop H8 in California, this will be the first time ever that a state marriage ban has been struck down on federal constitutional grounds. And even better, Judge Walker's ruling included another precious legal gem.

Under both the Due Process clause and the Equal Protection clause, whether a law is constitutional comes down to whether the state has a good enough reason for it. So, the core of Judge Walker's opinion today is his factual findings - the determinations he made based on the evidence presented to him at trial. Judge Walker's methodical opinion relies on the impressive and authoritative trial testimony of the Perry plaintiffs and their expert witnesses to conclusively refute every argument ever advanced against permitting same-sex couples to marry.

Judge Walker ruled that Proposition 8 and laws like it cannot withstand constitutional scrutiny even under the most forgiving legal standard, the "rational basis" test. But he also held that because it discriminates based on sexual orientation, Proposition 8 should be evaluated under the "strict scrutiny" standard - the highest level of constitutional scrutiny, which applies to laws that discriminate on the basis of race. Discussing the way that the law discriminates based on both sex and sexual orientation, he explained that excluding same-sex couples from marriage is "an artifact of a time when the genders were seen as having distinct roles in society and in marriage." And "[t]hat time has passed."

What Shannon Minter from NCLR (National Center for Lesbian Rights) is saying is that Judge Walker wrote that Prop H8 failed both the "rational basis" test applied to most questions of discrimination, as well as the "strict scrutiny" test typically applied only to questions of the most egregious discrimination. And in this and Walker's conclusion that marriage is a fundamental constitutional right, it will allow for future challenges of other state marriage bans even if the higher courts just take down California's marriage ban with this specific case.

There's a whole lot riding on this, and I'll be keeping a close eye to see if we may finally achieve full equality sooner than I had originally thought. :-)