The Ongoing Proposition 8 Trial: Three Key Points About the Evidence and Arguments
	By VIKRAM DAVID AMAR
	Friday, January 29, 2010

In this column, I offer some analysis of the federal bench trial on California's Proposition 8 that is winding down in San Francisco this week. As readers likely know, Proposition 8 is the state's voter-enacted ban on same-sex marriage. The plaintiffs in the case challenge the measure under the Due Process and Equal Protection clauses of the U.S. Constitution's Fourteenth Amendment.

For more background on the lawsuit, and the ways in which past U.S. Supreme Court rulings, properly understood, should affect the way the lower courts resolve the case, readers can refer to the first in an earlier set of columns I have written concerning this litigation. In today's column, I suggest three additional points.

The First Key Point: The Evidentiary Record Could Support a Victory for Prop. 8's Challengers – But Won't Guarantee One

First, the plaintiffs/challengers have been able to offer some evidence to establish a record on which a receptive judge could rule in their favor (if Supreme Court precedent permits it). There are at least four related but distinct kinds of questions that plaintiffs have been trying to address: (1) What is the history of, and what are the justifications for, the institution of modern civil marriage, and do that historical trend and set of justifications argue in favor of defining the individual liberty right to marry a person of one's choice broadly enough to include same-sex marriages?; (2) Are gays and lesbians relatively politically powerless victims of unfair societal and governmental hostility such that they, like members of racial minorities, ought to benefit from a special judicial solicitude?; (3) Were the voters who adopted Proposition 8 motivated by reflexive bias and bigotry, rather than legitimate public policy concerns?; and (4) What, exactly, is the governmental objective that is arguably or likely served today by defining marriage to include opposite-sex couples but not same-sex couples?

On each of these questions, the plaintiffs introduced some helpful evidence. Not uncontradicted evidence, mind you, but helpful evidence to be sure. Helpful to whom? Helpful to those judges whose "constitutional gut" instincts incline them to be open to the plaintiffs' claims. Put differently, here, as in many cases, the plaintiffs have laid a foundation on which a receptive judge could rule in their favor, but have not necessarily adduced the kind of evidence that is likely to win over a judge who was skeptical of their legal, historical, and sociological arguments in the first place. (Notably, the record in the Proposition 8 case may also provide useful – and perhaps more influential -- information in some non-judicial arenas, such as future legislative or initiative battles throughout the country on the same-sex marriage issue.)

The Second Key Point: Ultimately, This Will Be Appellate Courts' Call

My second point is that it doesn't really matter whether the federal district court judge presiding over the case in San Francisco, Vaughn Walker, is a receptive audience. After final arguments are made in a few weeks, Judge Walker will take the case under consideration. And in some number of weeks or months, he will issue his ruling either upholding or invalidating Proposition 8. And his ruling will doubtless garner tons of local and national press. And in the end, his ruling won't matter very much at all.

That is because in a case like this, the district court's decision is in essence a temporary placeholder. Everyone agrees that the losing side -- whether that is the challengers to or the defenders of Proposition 8 -- will appeal the case to the U.S. Court of Appeals for the Ninth Circuit, which has no choice but to hear the case. And when the Ninth Circuit hears the appeal, what will matter is which Ninth Circuit judges are randomly drawn for the case, not what Judge Walker has done below. As I noted earlier, the record that Judge Walker compiles will provide ammunition for the plaintiffs' viewpoint, but not so much ammunition that Ninth Circuit judges who would otherwise be disinclined to embrace the plaintiffs' arguments will be meaningfully constrained by the evidence from following their original disinclination.

What about the factual findings that Judge Walker will make? Don't higher courts have to defer to findings of fact by trial judges? Ordinarily, yes. But the kind of facts that Judge Walker will find -- such as whether gays and lesbians have adequate political clout to take care of themselves in the political process -- are not garden-variety "adjudicative" facts such as, say, whether a defendant was, in fact, wearing his glasses at the time of the automobile accident that gave rise to a lawsuit.

Instead, the facts in the Proposition 8 case consist largely of "legislative" facts -- big-picture assessments of history, political science, sociology, etc. And the assessment of such facts may be informed by a decider's own ideological leanings as much as by the credibility of the courtroom witnesses. These legislative facts are the kinds of facts that higher court judges tend to resolve for themselves, often without even the benefit of a formal adversarial trial. (One interesting and helpful aspect of the Proposition 8 case is that it may encourage more formal trials to at least test competing views about crucial legislative facts in a rigorous adversarial setting.)

And there is another reason Judge Walker's determinations might not end up carrying as much weight as trial-court factfinding would typically carry in a less extraordinary trial: The Supreme Court has already sent a message that it doesn't feel that Judge Walker is an even-handed referee in this dispute. When the Supreme Court stepped into the Proposition 8 case about two weeks ago, in Hollingsworth v. Perry, for the purpose of blocking Judge Walker's plan to broadcast the trial proceedings, the five-member Court majority intimated that Judge Walker and his colleagues on the federal district bench in San Francisco were guilty of disregarding generally-applicable procedures because they cared so much about this particular case. If the majority of the Justices had that view concerning the relatively minor question of broadcasting the proceedings, then it is likely that they would also have that view with respect to the ultimate resolution that Judge Walker reaches.

As an aside, I note that Justice Breyer's dissent in the Court's 5-4 ruling concerning the broadcast issue was quite powerful. As Justice Breyer compellingly argued, the narrow question on which the majority ruled -- whether the judges in the Northern District of California had followed the proper procedures in amending their local rules to permit broadcast -- involves no momentous legal question on which there was a festering split in authority in the lower courts. Thus, this issue was something in which the Court ordinarily would never get involved at such an early stage in a litigation. This point suggests that if the judges of the Northern District were guilt of wrongfully treating this case extraordinarily because of its unique subject-matter, then the same could be said, with even more force, about the Supreme Court itself.

(The case also raised the interesting question of why Justice Breyer, who generally recuses himself in all cases in which his brother, Judge Charles Breyer, of the U.S. District Court for the Northern District of California, has presided, did not recuse himself here, given that the issue presented was whether the judges of the Northern District had acted properly in amending their local rules.)

The Third Key Point: This Case Isn't Necessarily Headed for the Supreme Court

All of this brings me to my third and final point: Many commentators repeatedly observe that the Proposition 8 case is destined for the Supreme Court on the merits. But that is not necessarily true.

This case is, as noted above, destined for the Ninth Circuit. But whether it goes any farther depends on what the Ninth Circuit does. If the Ninth Circuit (either through a three-judge panel or the whole court sitting en banc) rules in favor of the plaintiffs and invalidates Proposition 8, then the Supreme Court may very well feel it must take the case, since same-sex marriage would be a federal right west of Rockies but not in most other parts of the country. But if the Ninth Circuit rejects the plaintiffs' claims, don't expect the Supreme Court to take the up the issue of same-sex marriage anytime soon. Still, when the Justices do address some future anti-same-sex-marriage measure enacted into law by a state -- and down the road, they may have to do so -- they'll have the benefit of the trial record in the Proposition 8 case, as well the opinions and/or evidence from other cases that will have been decided in the interim.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.