JUDGE WALKER, THINKING AHEAD…. Federal Judge Vaughn Walker not only struck down California’s ban on same-sex marriage, he did so with the case’s future in mind. Most seem to agree that Perry v. Schwarzenegger will eventually end up at the U.S. Supreme Court, so yesterday’s district court ruling seemed to cater to that eventual destination.
The NYT‘s John Schwartz noted that appellate judges in this case “could find themselves boxed in by the careful logic and structure” of Walker’s ruling. Northwestern Law School’s Andrew Koppelman told the Times, “[I]f the Supreme Court does not want to uphold same-sex marriage, its job has been made harder by this decision.”
The reason, he said, is that while appeals courts often overturn lower-court judges on their findings of law — such as the proper level of scrutiny to apply to Proposition 8 — findings of fact are traditionally given greater deference.
“They are supposed to take as true facts found by the district court, unless they are clearly erroneous,” he said. “This opinion shows why district courts matter, even though the Supreme Court has the last word.”
And to that end, Judge Walker’s 136-page opinion lays a rich factual record, with extensive quotation of expert testimony from the lengthy trial.
Slate‘s Dahlia Lithwick fleshed this out in more detail, adding that the ruling seemed to be “written for a court of one” — specifically, Supreme Court Justice Anthony Kennedy, very likely to be the swing judge in this case — the man “who has written most eloquently about dignity and freedom and the right to determine one’s own humanity.”
Judge Vaughn R. Walker is not Anthony Kennedy. But when the chips are down, he certainly knows how to write like him. 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). In a stunning decision this afternoon, finding California’s Proposition 8 ballot initiative banning gay marriage unconstitutional, Walker trod heavily on the path Kennedy has blazed on gay rights: “[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse,” quotes Walker. “‘[M]oral disapproval, without any other asserted state interest,’ has never been a rational basis for legislation,” cites Walker. “Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate,” Walker notes, with a jerk of the thumb at Kennedy.
Justice Kennedy? Hot sauce to go with those words?
The case has a long way to go, but I’m glad Judge Walker was thinking ahead.
Postscript: Let this also be a reminder that federal district court judges matter. For all the attention paid to the vacancies at the appellate level, Senate Republicans are blocking President Obama’s district court nominees because they realize rulings like the one we saw yesterday can make a significant difference.