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