Perry v. Schwarzenegger — Analysis


When I started out the day, I had a great idea to pick up this article from about Marxism and write about it, but then a certain bit of news happened, and I realize that there was little else to talk about.

California Proposition 8 deemed unconstitutional!

I swear, to anyone who read my blog yesterday, I had no idea that a decision on this was expected today. Perhaps I have psychic powers.

Opinions, opinions

So, the ruling was done by a single state judge, which isn’t all that noted until you consider that said judges’ opinion on this matter was 138 pages long! That is a lot of talk. Needless to say I haven’t dug into it too deeply, but there are several main points Judge Walker makes:

1) Fails the rational basis test:

The law in question is, beyond any doubt, a discriminatory statute. What this means in technical terms is that it singles out one group of people and makes a law about them.  This is allowed in only a small number of cases, and the federal government has to prove that such a law has a rational basis. That is, they have to have a good, cogent reason for why they are discriminating.  However, Judge Walker thought that this was not done for Prop 8.

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.


2) Violates  the equal protection clause also:

Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

And that’s another hit.

3) Due Process Clause

As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.” [citation omitted] Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

And another one bites the dust. For a really good, succinct view of the opinion,  Ilya Shapiro summarizes it thusly:

In short, the court found none of the government’s asserted interests — including tradition, moving slowly on social change, and promoting different-sex parenting — to be “legitimate.”

Thoughts on the decision and its appeals

The only part I particularly find lacking is the due process argument. Namely, that the government cannot deprive anyone of life, liberty, or property without due process of law. Though that is the argument I would generally make,  I see his opinion having some trouble flying in the higher courts. It would be the part that they would go after, if they so chose. You’d have to say which of the fundamental rights was being violated and then show how the government doesn’t have a legitimate state interest in violating those rights. I certainly think that there is a case for that, but I haven’t seen it yet in his opinion, and that worries me some.

It will, of course, be appealed. And homosexual marriage is not yet legal in California, because the defendant(s) do plan to appeal. It will go to the 9th circuit, which will most likely agree with the district court. The real question, of course, is what the Supremes will do.

I do not know whether there is enough national consensus for them to be willing to take up the decision. It is certainly a controversial issue which could make them want to take it up. But I think it’s pretty clear that prop 8 (or any outright ban on gay marriage) violates several clauses of the constitution and doesn’t have a real rational basis (as my post yesterday showed). Even if the proponents of prop 8 had chosen to argue that civil unions give comparable rights to homosexual unions, there’s overwhelming evidence that they don’t. In fact, married couples get over 1,000 more rights than those who are joined by civil unions. So that would fail also.

But the arguments have been made, and there won’t be anymore. From now on it’s judges judging judges, constitutional interpretation, etc.

I couldn’t call at the moment, what the Supremes will say, if they do take the decision. I think the case against Prop 8 is pretty strong, and if they do uphold it, it would be, you know, an actual case of judicial activism. But I have a little more faith in the court than that.  But it’ll be a while before we have to worry about that. Let’s see what the 9th circuit does.

To those of you who are wondering, yes, I do have my own opinions on this. I will post them shortly. The analysis, I thought, was too important to shorten and the post is too long without my ramblings. It will be my next post.