Judge’s Prop 8 questions portend ‘blockbuster’

U.S. District Court Judge Vaughn Walker

The federal judge presiding over the highly publicized Proposition 8 trial distributed to attorneys on both sides of the controversy Monday a list of 39 questions he’d like them to address during closing arguments June 16. It’s the kind of list, said one veteran gay legal scholar, that promises his decision—whatever that turns out to be—will likely be a “blockbuster in its scope.”

Among the questions Walker poses are: “What does it mean to have a ‘choice’ in one’s sexual orientation?” and “If spouses are obligated to one another for mutual support and … if legal spousal obligations have no basis in the gender of the spouse, what purpose does a law requiring that a marital partnership consist of one man and one woman serve?”

High-profile attorneys Ted Olson, challenging Proposition 8, and Charles Cooper, defending it, will attempt to answer those questions in their closing arguments before Walker Wednesday in the U.S. District Court for Northern California, in San Francisco. If they choose, they can also do so in writing before that proceeding is adjourned.

But after June 16, Walker will take all the arguments he’s heard and all the facts he’s been delivered back to his chamber to render a decision.

Nan Hunter, who for nine years headed up the ACLU’s National Gay and Lesbian Rights Project and is one of the most veteran and respected scholars in LGBT legal matters, said Walker’s questions suggest he may have already drafted an opinion in the four months since he adjourned the evidentiary segment of the trial, in late January.

The detail and breadth of the questions, she noted, “are literally all over the place, but in a good way.”

“Since I assume that most of them arose from a draft of the opinion,” said Hunter, “the list strengthens my expectation that this decision will be a blockbuster in its scope.”

“Judge Walker seems to be preparing an opinion that will comb through the evidentiary record,” said Hunter, referring back to his question list, “to discuss history (how can a right be characterized as fundamental, given the Supreme Court’s focus on tradition, when it did not exist in American society until a few years ago), culture (what is the difference between gays and lesbians on one hand and heterosexuals on the other), social theory (why is the ‘deinstitutionalization’ of marriage bad), and psychology (could sexual orientation be immutable for men but not for women).” (Hunter’s discussion of the question list can be read at Hunter of Justice.)

One question that stands out for Hunter and other LGBT attorneys watching the case is the first: It asks attorneys challenging Proposition 8 to assume that it has been established that Proposition 8 is not rationally related to a legitimate state interest but that “voters genuinely…believed” it was. “Do the voters’ honest beliefs, in the absence of supporting evidence, have any bearing on the constitutionality of Proposition 8?”

“That,” said Hunter, “alludes to a fundamental conflict in constitutional democracy that has been with us since the founding.”

The key question before Walker, as a judge, however, is whether California’s ban on same-sex marriage, passed as an initiative by voters in November 2008 as Proposition 8, violates the U.S. Constitution.

This trial is the first time state bans on same-sex marriage have been challenged under the federal constitution in federal court. (Other lawsuits have been filed—notably Smelt v. U.S.—but have been subsequently dropped.)

Olson and his team, which include well-known liberal attorney David Boies, put on a broad-scale attack, similar to one staged against Colorado Amendment 2 in 1993. Both cases tackled such matters as the history of discrimination against gays and whether sexual orientation is an immutable trait, but the Colorado Romer v. Evans case was about anti-discrimination laws in general. Perry v. Schwarzenegger, in San Francisco, is about marriage in particular.

Olson and his team, representing two same-sex couples, say Proposition 8 violates the federal constitutional guarantees of equal protection and due process. Cooper and his team say it reflects the will of the majority in a democratic system and that will is—not to express hostility to gays but—to “preserve the traditional definition of marriage.”

The 39 questions that Walker posed to the two sides—and to San Francisco’s openly gay Deputy City Attorney Therese Stewart, who will also give closing arguments—delve into both law and facts. They also touch on the federal Defense of Marriage Act—a federal law banning the recognition of same-sex couples which is under challenge by two active lawsuits in a federal court in Boston.

Judge Walker asked the attorneys challenging Proposition 8 to say whether they believe the court “could find Proposition 8 to be unconstitutional without also considering the constitutionality of the federal Defense of Marriage Act.”

Gary Buseck, legal director of Gay & Lesbian Advocates & Defenders, which is waging one of those challenges against DOMA, said he thinks Proposition 8 can be found unconstitutional without implicating DOMA.

“After all, we have marriage in five states and D.C. with DOMA in effect,” said Buseck, and the Massachusetts supreme court ruled, in 2003, that the Massachusetts constitution required equal marriage rights without needing to reach DOMA.

“Practically, people may have views on whether DOMA could stand given some bases on which Prop 8 might be struck,” said Buseck. “Then again, some narrow theory for striking Prop 8 may have no necessary effect on DOMA.”

In some cases, Walker’s questions appear to be hinting that the evidence submitted thus far for certain critical facts may not be sufficient. He asks, for instance, “What are the constitutional consequences if the evidence shows that sexual orientation is immutable for men but not for women? Must gay men and lesbians be treated identically under the Equal Protection Clause?”

If a minority is treated poorly because of an immutable trait, such as skin color, the courts may scrutinize laws that treat them differently with a much tougher review—called strict scrutiny.

“We think that term ‘immutable’ has a meaning different in this analysis from just whether something is ‘changeable’ in the day-to-day sense,” said Lambda Legal Defense and Education Fund attorney Jenny Pizer. “Just because a person’s expression of their sexuality may be different at different stages of their life doesn’t mean their orientation is a matter of voluntary will at any given moment or, more to the point, that the government has any business telling the person to change as the price of equal treatment under law.”

“Think of it this way,” said Pizer, “people who are raised in an orthodox faith may be less likely to change their religious views or affiliations than people raised in faiths that accept greater diversity of belief. But do the orthodox get more constitutional protection for their exercise of religion than those whose beliefs are broader or more flexible in their expression? No. Equal protection means equal.”

“And while sexual orientation and religious faith have very different sources,” said Pizer, “both tend to be deeply rooted in personal identity and not something our government has a right to judge or require be changed as a condition of equal citizenship.”

Whatever questions prevail near the end of the case, they certainly foreshadow an active last day in court. Walker also issued instructions on Monday that closing arguments would begin at 10 a.m. Pacific time (1 p.m. Eastern) and, after a 12 to 1 p.m. lunch break, would resume from 1 p.m. until 3:45—a total of less than four hours but approximately the same as opening statements.

Walker is expected to be an active questioner during closing arguments, as he was during opening statements on January 11. On that day, Walker quickly interrupted plaintiffs’ lead attorney Ted Olson to ask, “Does the right to marriage mean you have the right to a marriage licenses from the state?” He interrupted Proposition 8 defender Charles Cooper’s opening statement to note that, if President Obama’s parents—an interracial couple—had lived in Virginia “their marriage would have been unlawful. Doesn’t that indicate there’s been quite a change in our understanding of what people are entitled to marry? Couldn’t an argument be made that there’s been a similar evolution with respect to same-sex marriage?”

Walker was equally active in challenging both sides throughout the three weeks of testimony in Perry v. Schwarzenegger in January.

The trial itself spanned almost three weeks, with 16 witnesses for the plaintiffs challenging California’s same-sex marriage ban, and 3 witnesses who support the initiative.

Judge Walker, an appointee of President George H.W. Bush, is chief of judges in the U.S. District Court for Northern California. His credentials coming into the case were predominantly conservative. In addition to being a Republican appointee, his reputation included having been one of the attorneys representing the U.S. Olympics Committee in 1985 when it prohibited the San Francisco Arts & Athletics Association from calling its event the Gay Olympics. Walker and his colleagues won the USOC’s case against Gay Games in 1986, at the U.S. Supreme Court.

But days after Walker adjourned the witness portion of the trial, the San Francisco Chronicle reported that it is an “open secret” in San Francisco that Walker “is himself gay.” The paper made its report without identifying any named sources and with only a “no comment” from Judge Walker himself.

An estimated 18,000 same-sex couples obtained marriage licenses in California between June and November 2008, after the California Supreme Court ruled that the state’s constitution required they be treated the same as straight couples.

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