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Michael C. Dorf

A Federal Judge Strikes Down California's Proposition 8: Will the Ruling Ultimately Advance or Retard Civil Rights for LGBT Americans?


Monday, August 9, 2010


Last week, Federal District Judge Vaughn Walker issued his long-anticipated decision in Perry v. Schwarzenegger, the constitutional challenge to California's Proposition 8.  In a sweeping and stirring opinion, Judge Walker found that the evidence and arguments advanced by Prop 8's supporters were so insubstantial that California's denial of same-sex marriage was irrational.

Although some of Judge Walker's opinion focused on facts and circumstances that are unique to California, the core logic of the ruling implies that gay and lesbian couples throughout the country have a federal constitutional right to marry.  Thus, should the decision be affirmed by the U.S. Court of Appeals for the Ninth Circuit, the U.S. Supreme Court will come under considerable pressure to consider the case.

To be sure, the same-sex marriage issue may not arrive at the Supreme Court for several years.  But it will likely arrive there before too long, with the Court opting to review the Prop 8 case, the recent Massachusetts federal district court decision invalidating the Defense of Marriage Act, or another case.

The prospect of a Supreme Court ruling on same-sex marriage fills members of the gay-rights advocacy community (of which I am at least a fellow traveler if not a full-fledged participant) with both hope and dread.  By denying a right to same-sex marriage, the Justices could set the cause back a decade or more.  And paradoxically, even by recognizing a right to same-sex marriage, the Supreme Court could harm the movement, because such a ruling could spark a backlash.

In this column, after briefly summarizing the decision in Perry, I ask whether Judge Walker could or should have trimmed his ruling or rhetoric to avoid the potential consequences of Supreme Court review.  I conclude that despite a couple of questionable decisions regarding the defendants' standing, he probably was right to reach the merits.  However, the Supreme Court itself has more wiggle room to duck this contentious issue.

The Ruling and its Implications Beyond Prop 8

Much of Judge Walker's thorough opinion summarizes the evidence presented at trial and makes factual findings based on that evidence.  Some of the evidence and findings relate to matters unique to California.  For example, Judge Walker found that the particular advertising campaign that was conducted in support of Prop 8 appealed to ugly stereotypes about gay men and lesbians.

However, the ultimate decision does not rest on circumstances that are in any way California-specific.  Judge Walker invalidated Prop 8 on two grounds, both of which would apply in any state that denies same-sex couples the legal ability to marry.

First, he found that the long-recognized federal constitutional right to marry applies to same-sex couples.  Although Prop 8's supporters argued that the federal constitutional right had traditionally encompassed only opposite-sex couples, Judge Walker noted that the right has evolved over time, even while retaining its core characteristics.  He explained that racial restrictions on marriage were dropped without undermining the institution.  So too, traditional marriage gave the husband legal primacy over the wife, but the gender-based aspects of marriage were eliminated without damaging marriage per se.  Thus, Judge Walker concluded that permitting same-sex couples to marry would merely be one further evolutionary step, consistent with prior liberalization.

Second, Judge Walker held that denying same-sex couples the right to marry denies them the equal protection of the laws.  Although he struck down Prop 8 as not even minimally rational, he also made clear that the denial of the right to same-sex marriage should have to survive much more rigorous judicial scrutiny.  Prop 8 illicitly discriminates both on the basis of sex and on the basis of sexual orientation, he found.

On the other side of the ledger, Judge Walker found nothing substantial.  The core defense offered for Prop 8 was that same-sex marriage somehow undermines opposite-sex marriage.  However, Judge Walker concluded that "[p]ermitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages."

Likewise, Judge Walker found that legal domestic partnerships are an inadequate substitute for marriage.  They do not carry the same interstate benefits as marriage and they lack the social meaning that the term "marriage" conveys.  Accordingly, if applied nationwide, Judge Walker's decision would grant same-sex couples a right to marry in every state.

Is the Supreme Court Ready to Recognize a Same-Sex Marriage Right?

Make no mistake: Judge Walker's ruling is a great victory for civil rights.  Moreover, the trial proceedings themselves were eye-opening.  They revealed just how insubstantial the case against same-sex marriage actually is.

Nonetheless, the Perry litigation poses serious risks for LGBT activists and for progressive politicians more broadly.  One such risk is that the case will arrive at the Supreme Court too early.  It is widely assumed that at least four of the current Justices--Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito--would vote to reject a right to same-sex marriage.  Hence, to prevail, the plaintiffs' lawyers would need to persuade all of the other Justices.

Yet in the Court's most prominent gay rights decision, the 2003 ruling in Lawrence v. Texas, the majority opinion of Anthony Kennedy went out of its way to distinguish laws that criminalize private sexual conduct from laws that deny same-sex couples the right to marry.  In striking down the Texas sodomy prohibition, Justice Kennedy wrote that the Court was not saying that "the government must give formal recognition to any relationship that homosexual persons seek to enter."  If even one of the Justices who ordinarily support LGBT rights balks at recognizing a right to same-sex marriage, the result would be a decision denying such a right.

That would be a major setback because of the symbolic significance of the ruling.  In going to the Supreme Court "too soon," the Perry litigation could parallel the sodomy- law challenges.  In 1986, the Court rejected a constitutional challenge to the Georgia sodomy law in Bowers v. Hardwick, and it took seventeen years before that decision was finally overturned in Lawrence.   So too, a ruling against same-sex marriage in the next couple of years could foreclose reconsideration of the constitutional question for decades.

LGBT activists have been worried about the Perry case ever since it was filed.  Although ably represented by super-lawyers David Boies and Ted Olson, the Perry plaintiffs proceeded without the prior blessing of movement organizations like Lambda Legal.  For years, these organizations had carefully crafted a litigation strategy aimed at winning the right to same-sex marriage based on state constitutions, precisely because such rulings would not be reviewable by the U.S. Supreme Court.  Although Lambda and other mainstream LGBT advocacy groups offered public support for the Perry lawsuit once it got going, privately they remained worried (and, it appeared to me, more than a little bit annoyed).

Be Careful What You Wish For: The Risk of Backlash

Perhaps the only thing worse for the same-sex marriage movement than losing in the Supreme Court would be winning there.  A narrow victory for same-sex marriage could inspire political backlash including, conceivably, a federal constitutional amendment that would eliminate same-sex marriage in all states--even those that already recognize same-sex marriage.  Indeed, depending on the wording of such an amendment, it might even eliminate same-sex civil unions.

How likely is such an amendment?  Much would depend on the composition of Congress at the time of the Supreme Court ruling.  But even with Democrats in control, retention of same-sex marriage is not a certainty.  Even otherwise-progressive national political figures like President Obama do not openly favor same-sex marriage.  To be sure, the President is also on record--even as recently as last week--as opposing Prop 8.  Perhaps there is a principled basis for that straddle, but it also reflects political reality: Obama wants to support LGBT civil rights, but he sees the marriage issue as a hot potato.  A Supreme Court ruling legalizing same-sex marriage nationwide could make that issue radioactive.

Even if backlash against a Supreme Court ruling recognizing same-sex marriage did not culminate in a constitutional amendment, it would likely energize social conservatives and thus split the Democratic coalition.  The result would be to undermine progressive causes--including, but not limited to, LGBT rights. 

Indeed, we have seen this dynamic before:  In 2004, anti-same-sex marriage initiatives were on the ballot in several key swing states, and were credited by some analysts as boosting the turnout of conservative voters, who then also supported President Bush's re-election.  Likewise, the Supreme Court's abortion rulings in the 1970s are widely credited with contributing to the dominant role that social conservatives have come to play in the Republican Party since the 1980s.

Should Judge Walker Have Decided Against the Plaintiffs Based on the "Society Is Not Ready" Argument?

During the trial, Judge Walker openly considered the possibility of denying the plaintiffs' claims because the country is not yet ready for same-sex marriage.  Ultimately, however, he concluded that the Constitution requires marriage equality, whether society is ready or not.  Was that the right call?

Some constitutional doctrines make express reference to social attitudes.  For example, whether a punishment is "cruel and unusual" in violation of the Eighth Amendment depends on society's "evolving standards of decency."  Thus, in recent years, the Supreme Court has examined evidence of society's value judgments in invalidating the death penalty for persons with intellectual disability and for minors; and this past Term, the Court invoked an emerging consensus as an essential ground for striking down life without parole as a punishment for non-homicide offenses committed by juveniles.

Other doctrines also look to societal values.  Whether sexually-explicit material qualifies as obscene depends on "community standards."  And whether a right counts as fundamental, under the Due Process Clause, depends in substantial measure on whether it is "deeply rooted" in our nation's history and traditions.  Judge Walker might have looked to that language as a basis for narrowly defining the right to marry.

However, that would have been an unpersuasive move.  As Judge Walker explained in the due process portion of his opinion, prior Supreme Court opinions have defined marriage broadly, despite traditions denying protection to interracial marriage.  Moreover, even if notions of tradition might have been used to deny recognition to a same-sex marriage right under the Due Process Clause, tradition would not have been a sound basis for denying the plaintiffs' claims under the Equal Protection Clause.  On the contrary, for equal protection purposes, the very fact that gays and lesbians have traditionally suffered (and continue to suffer) discrimination, counts as a reason for recognizing their judicially-protected rights.

Thus, given the doctrine, there was no good way for Judge Walker to have taken tradition into account as a reason for rejecting the plaintiffs' claims.  Should he then have tried to find some other ground for denying relief?

There is a precedent for doing so, but it is an unhappy one.  After its 1954 landmark decision in Brown v. Board of Education,the Supreme Court faced the question of what remedy to order.  In 1955, the Court answered that states and localities would have to desegregate their public schools "with all deliberate speed."  This oxymoronic formulation was meant to give Southern school districts time to redraw attendance zones and also to ease the country's acceptance of Brown's mandate.  In fact, however, recalcitrant segregationists used the "deliberate speed" language as an excuse for foot- dragging for the next decade-and-a-half.

Judge Walker can hardly be criticized for not wanting to give California an excuse for non-compliance.  And even if he had wanted to try such a move, it would have made no sense.  California already showed--in the months after the state Supreme Court found a state right to same-sex marriage, but before Prop 8's passage--that it could issue marriage licenses to same-sex couples without experiencing any substantial administrative difficulties.

If Judge Walker really wanted to duck the merits, his best option might have been to enter a default judgment.  The state defendants declined to defend the constitutionality of Prop 8, and so Judge Walker permitted its sponsors to intervene to do so.  But a 1997 Supreme Court case, Arizonans for Official English v. Arizona, casts serious doubt on the legal standing of a ballot initiative's sponsors to act as the initiative's sole defender in federal court.  So Judge Walker might have simply declared the plaintiffs victorious by default without necessarily teeing up the same-sex marriage issue for the Supreme Court.

The Passive Virtues in the Supreme Court

The U.S. Court of Appeals for the Ninth Circuit--where Perry goes next--could try that move: It could vacate Judge Walker's ruling for lack of a live controversy.  Yet to do so, it would also have to affirm Judge Walker's decision to deny Imperial County the ability to intervene as a defendant.  But that ruling was also questionable: Arguably county officials have a very substantial stake in enforcing a state law, even if state officials choose not to.  Hence, there may be a live controversy here, just not the one Judge Walker thought.  If there is a live controversy between the plaintiffs and Imperial County, then the Ninth Circuit will have to reach the merits.

Nonetheless, the final stop for Perry is another story.  The U.S. Supreme Court does not have to hear the case.  Instead, with the discretion to decide what cases to consider, the Justices could conclude that the best course is to leave same-sex marriage in the hands of state legislatures and lower courts for the next few years.

In doing so, the Court would be exercising what Alexander Bickel once famously called "the passive virtues"--the use of various procedural devices to avoid making socially-divisive decisions on the merits.  As I noted in an earlier column, Bickel's passive virtues can be abused, but there remains an important place for them.  Perry may present an ideal case for allowing a legal issue to "percolate" in the lower courts for several years before resolving it one way or another for the country as a whole.

Of course, for individual same-sex couples who want to marry now, that is bitter medicine.  Such couples are right to think that every day they must wait to exercise the same basic civil rights straight Americans take for granted is an unjust day.  But thinking about the matter systemically, surely it is better for the cause of civil rights if justice is delayed--as it would be, if the Supreme Court were to decline to review Perry--than if justice is granted only then to be taken away--which would happen if a Supreme Court decision recognizing a right to same-sex marriage were to spark a backlash culminating in a constitutional amendment.

Time is on the side of justice on this issue.  Because younger Americans are much more comfortable with same-sex marriage than older Americans, the day will come when opposition to same-sex marriage seems as antiquated as opposition to interracial marriage seems today.  But whether the Perry litigation hastens or delays that day remains to be seen.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He blogs at His next book, The Oxford Introductions to U.S. Law: Constitutional Law (with Trevor Morrison), will be published in September.

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