Monday, July 06, 2009

Pointless Factfinding in the Boies/Olson Same-Sex Marriage Case

As I discussed earlier, I share the concern of LGBT lawyers who worry that the federal court litigation now being pursued by uber-lawyers David Boies and Ted Olson to overturn California's Prop 8 could backfire, and set back the cause of same-sex marriage by a decade. Now for an update on the litigation.

Last week, Federal District Judge Vaughn Walker (appointee of Pres Bush 41) issued a 3-part ruling. Part 1 is unobjectionable. Part 2 has implications beyond what Judge Walker seems to acknowledge. Part 3 is simply bizarre.

1) Judge Walker allowed the proponents of Prop 8 to intervene in the case to defend its constitutionality. That's fair. AG Jerry Brown would likely provide less than a vigorous defense, and neither the plaintiffs nor any other party objected to the sponsors' intervention.

2) Judge Walker also declined to rule on the plaintiffs' motion for a preliminary injunction. He decided instead to move expeditiously to a trial on the merits, in substantial part out of a desire to avoid the sort of legal confusion that might ensue were he to grant the preliminary injunction, only then to void it after a trial on the merits won by the defendants: What would happen to any couples married during the pendency of the preliminary injunction? This issue would replicate the problem CA already faces from the "grandfathered" same-sex marriages that were entered after the initial CA S Ct ruling finding a right to same-sex marriage but before the passage of Prop 8, eliminating that right.

So what's the problem? Just this: If Judge Walker is right, then the same logic would suggest that even if the plaintiffs win on the merits, they shouldn't get injunctive relief which could be dissolved on appeal at the 9th Circuit, the en banc 9th Circuit, or the Supreme Court. True, a victory on the merits would--as a technical legal matter--change the balance because it would mean that the plaintiffs are (as far as the technical doctrine is concerned and as is true in less fraught cases) more likely to prevail on appeal. But no one seriously thinks that the decision by one district court judge is a predictor, one way or the other, of what the higher courts will do. So, if avoiding confusion justifies denying preliminary relief, it would also justify the district court, if it should grant "final" injunctive relief, in staying its mandate pending final disposition on appeal.

3) Judge Walker directed the parties to marshall their evidence on a number of "factual" questions. These include:
(1) the history of discrimination gays and lesbians have faced; (2) whether the characteristics defining gays and lesbians as a class might in any way affect their ability to contribute to society; (3) whether sexual orientation can be changed, and if so, whether gays and lesbians should be encouraged to change it; and (4) the relative political power of gays and lesbians, including successes of both pro-gay and anti-gay legislation.
Those are all "facts" relevant to the determination whether sexual orientation is a suspect classification for equal protection purposes. In addition, Judge Walker said:
To determine whether the asserted state interests can survive plaintiffs’ constitutional challenge, the record may need to establish: (1) the longstanding definition of marriage in California; (2) whether the exclusion of same-sex couples from marriage leads to increased stability in opposite-sex marriage or alternatively whether permitting same-sex couples to marry destabilizes opposite-sex marriage; (3) whether a married mother and father provide the optimal child-rearing environment and whether excluding same-sex couples from marriage promotes this environment; and (4) whether and how California has acted to promote these interests in other family law contexts.
I'll admit that if an extra-terrestrial just arrived on Earth and started reading the bar review materials on constitutional law, he, she or it could indeed come away with the impression that the foregoing eight questions--which do indeed involve questions that are at least in part factual--need to be resolved by the sifting and weighing of evidence. But any Earthling who actually understands how constitutional adjudication on these issues works will also understand that what Judge Walker proposes to do is likely to be worthless.

Take the level of scrutiny first. If it's true that the first four questions are factual in nature, then it is possible for sexual orientation to be a suspect classification in Utah but not in California (or vice-versa!). But equal protection doctrine simply does not work this way. Classifications are suspect nationwide or they are not.

The second set of questions is slightly more "factual." We could imagine that something peculiar to California's history could render a state interest sufficiently compelling to overcome strict scrutiny (if that is the standard) in that state, but not so in another state. At least that's a conceptual possibility. To take a different example, suppose there were some state prison system that had a long and continuing history of prison race riots. We might imagine that in such a state, racial segregation in prisons might satisfy strict scrutiny even though it wouldn't in another state. But in the same-sex marriage context, there is really no state-by-state variation of this sort, and nothing in the evidence likely to be offered in answering the second four questions will be peculiar to California.

To put the point differently, a district judge's findings of fact are reviewed by higher courts under a deferential standard: They are upheld only if they are "clearly erroneous." If Judge Walker is right that these issues are indeed issues of fact, then he could issue one set of findings and a different judge in a different case seeking a federal right to same-sex marriage--even a different case in federal court in California!--could issue a completely contrary set of findings, and neither judge could be reversed, because neither judge would be "clearly" wrong. And we know that would be nuts.

There is simply no way that the 9th Circuit or the Supreme Court, if inclined to disagree with Judge Walker on the bottom-line legal conclusion about whether Prop 8 is valid, would end up agreeing with him because obligated to defer to his findings of fact. In short, although the issues Judge Walker has defined as factual do indeed seem to call for evidence, there is no way for our system of litigation to treat them as ordinary litigation facts. They are what we constitutional lawyers call "legislative facts," a somewhat misleading term used to connote facts that are established for all cases by a single body. Here that body will be either the Supreme Court or, if it denies review, the 9th Circuit (for states within its territory). Judge Walker's factual findings will be irrelevant, except perhaps as post hoc justifications for judges and Justices up the review chain who happen to agree with his legal conclusions.

Posted by Mike Dorf


AF said...

You are correct that the factfinding ordered by Judge Wallker will not result in "ordinary litigation facts." But it is not "bizarre" nor is it alien to "any Earthling who actually understands how constitutional adjudication on these issues works." On the contrary, factfinding such as this is relatively common in constitutional adjudication.

One prominent example is Brown v. Board of Education, which relied on expert testimony that "[s]egregation with the sanction of law . . . has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system."

Michael C. Dorf said...

I didn't say that such factfinding is "alien" to Earthlings. I said that Earthlings familiar with how con law works would recognize the factfindings as worthless. I did call the procedure "bizarre," but not in the sense of unusual or unprecedented. The relatively common practice of factual adjudication is bizarre in the sense of peculiar in light of the underlying nature of the case.

Sam Rickless said...

"Take the level of scrutiny first. If it's true that the first four questions are factual in nature, then it is possible for sexual orientation to be a suspect classification in Utah but not in California (or vice-versa!). But equal protection doctrine simply does not work this way. Classifications are suspect nationwide or they are not."

This seems absolutely right. But what it also points up is the problematic nature of the criteria of suspectness that have been applied by Federal Appeals courts in gay marriage cases (in CT and CA). Does it really matter whether gays and lesbians have faced a HISTORY of discrimination? Isn't what really matters whether gays and lesbians face discrimination NOW? Does it really matter whether being gay affects one's ability to contribute to society? Suppose it were discovered that being black negatively affects one's ability to contribute to society. Wouldn't anti-miscegenation laws still fall afoul of the equal protection clause? Does it really matter whether one's sexual orientation is a mutable characteristic? Nationality is mutable, but does this mean that discrimination on grounds of nationality should be subject to the rational basis test? [Immutability adds to the invidiousness of discrimination. Mutability does absolutely nothing to justify it.] And does the relative political power of gays and lesbians matter? Suppose blacks had a great deal of political power, but a majority of blacks disapproved of interracial marriage. Would this mean that anti-miscegenation laws should be subject to less than strict scrutiny?

I find the "suspect classification" component of equal protection jurisprudence completely baffling. Maybe this is because I am a philosopher, but I don't think so. I would like to see the fact-finding reduced to the Brown sort of fact-finding. The relevant question is whether discrimination infringes a person's right to equal opportunity. This was the defining question of Brown, and should be the defining question in this case too.

The Counterfactualist said...

I am curious why the fact-finding is worthless. I understand that legislative facts cannot vary from state to state and parceling out a history of discrimination in California seems a bit silly as a result. But what if the point is that (1) discriminatory practices and political influence may in fact vary from state to state and (2) California’s domestic partnership benefits may meet an Equal Protection standard that another state’s laws do not? In other words, California may win, but an EP standard may be established on the facts found in Walker’s courtroom. Or perhaps because this is a rational-basis case, or because there is no federal question, it is irrelevant. But why not prepare for the possibility?

AF said...

Professor Dorf -- Fair enough. I thought you meant bizarre in the sense of uncommon or unusual. I half agree with you that Judge Walker's procedure is bizarre in the sense of poorly suited to the task.

The reason I only half agree is that while highly imperfect, trial-court adjudication of constitutional facts is almost certainly superior to the alternative -- which is not the absence of fact-finding, but rather quasi-fact-finding through secondary or tertiary sources cited in briefs of the parties or amici, or discovered through the law-office research of judges and law clerks. The "Brandeis brief," for example, is essentially an expert report without the expert and (more importantly) without counter-reports or cross-examination. Such adversarial procedures, which again are far from infallible, can in my experience weed out certain biased factual assertions that seem plausible on first blush -- and therefore could easily be accepted if presented only in an appellate brief -- but turn out upon examination to be unsupportable.

So while I would agree that the formal trappings of factual adjudication (such as deference to the fact-finder) are inapplicable to the adjudication of constitutional facts, I would not agree that such adjudication, if done well, is "worthless."

Michael C. Dorf said...

AF and I are in agreement (I think) about how these issues should be handled if what we're after are legislative facts: The Supreme Court itself ought to have something akin to a special master to do this for itself. In my 1998 Harvard Law Review Foreword, The Limits of Socratic Deliberation, I proposed something like this based loosely on an old proposal from Cardozo called a Ministry of Justice. I also proposed as a better answer that constitutional rights tolerate more state-by-state variation of just the sort that Anonymous Blogger suggests. What I meant to note in my post, is that given the way things are going to work (because the courts have not adopted either of my proposals), the district court factfinding won't do much good. Finally, to pile on with the point Sam Rickless makes, the need to show a history of discrimination is especially odd given the "symmetry" of the Court's jurisprudence: Once a classification is suspect, it goes in all directions, so demonstrating a history of discrimination against gay people could help establish that strict scrutiny applies to discrimination against straight people. Or, more to the point, the history of (and ongoing) discrimination against African Americans justifies (under current doctrine) strict scrutiny of affirmative action.

Chris said...

I don't think the clear-error standard poses that much of a barrier to the reconciliation of different assessments of the facts. Under Gypsum, the appellate court has to say that, having thought carefully about the entire record, it has a definite and firm conviction that there has been a mistake: "A finding is 'clearly erroneous' when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." If the second court doesn't give a good explanation for why it disagrees with the first court, for instance, that would go a long way toward showing clear error.

The Counterfactualist said...

It is not pointless fact-finding.

1. The United States is not a named party, and Prop 8 is attacked under the 14th Amendment and section 1983. There is no obligation to file a DOJ brief.

2. After Olson/Boies filed their complaint, requesting a preliminary injunction, the Governor of California and the California Attorney General argued, respectively, that (a) there is a substantial constitutional question the Court has jurisdiction to decide and (b) the position of the plaintiffs is constitutionally correct. No contest of jurisdiction or standing was made and no motion to dismiss was filed.

3. Judge Walker, instead of decide the preliminary injunction motion, permitted the Alliance Defense Fund to intervene, an implicit ruling that the state of California was a collusive defendant, and calendared a case management conference to discuss factual stipulations and proceeding to trial concerning whatever factual disputes.

To recap: the case has moved past motion to dismiss stage, past the preliminary injunction stage, and onto factual development and, once that is concluded, to the summary judgment stage, whereupon Walker will make a ruling of law.

Let's assume the case went to the Supreme Court. If it were decided on a motion to dismiss, just on the pleadings, given current precedents Olson would likely fail. There is no claim stated. If it were decided on TRO standards, given the precedents, the suit is likely to fail. If it is decided on summary judgment standards, the record must be viewed in the light most favorable to the plaintiff and deference to the trial court is required. Thus, any "animus" would be set in the record, even if it is purely fictional animus.

The whole point of the factual development is to eliminate genuine disputes of material fact to move the case to the summary judgment stage so that the plaintiffs are in the best posture for Supreme Court review. It is not pointless; it is manipulative.

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