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Who Will Win the Gay Marriage Trial?—A Commentary by William N. Eskridge Jr. ’78 and Darren Spedale

The following commentary was posted on Slate.com on January 29, 2010.

Who Will Win the Gay Marriage Trial?
By William N. Eskridge Jr. ’78 and Darren Spedale

With the testimony in the Proposition 8 trial now closed, it's time to consider: Which side will win? Will Judge Vaughn Walker find that California's limitation of marriage to one man, one woman violates the U.S. Constitution? Legal doctrine affords both sides avenues for victory. It also generates landmines (arguments that could create controversy for Judge Walker) and lavender herrings (silly diversions that he would be wise to avoid).

If Judge Walker finds that Proposition 8 reflected nothing but prejudice or animus against lesbian and gay people, he will rule it unconstitutional. In the 1996 case Romer v. Evans, the Supreme Court held that a voter initiative targeting gay people because of "animus" violates the Equal Protection Clause of the 14th Amendment, because prejudice against a social group cannot be a "rational basis" for exclusionary laws.

If Walker doesn't find that Proposition 8 was motivated by animus, he could uphold the California initiative based on one of several "rational" bases put forward by lawyer Charles Cooper and his team for the law's defenders. For example, they maintain that gay marriage would be bad for children, because it would legitimize the practice of raising children in lesbian or gay households. But the children-will-be-harmed argument is a lavender herring, not only speculative but suspiciously close to old stereotypes about lesbian and gay people as anti-family and predatory toward children. There is no reliable social science evidence that lesbian and gay couples do a bad job raising children, and at the trial Cambridge professor Michael Lamb surveyed the extensive evidence suggesting that those couples do a good job. Also, wouldn't children being raised by unmarried couples benefit if their mothers or fathers could cement their union in marriage? This is a defense Judge Walker should eschew.

Cooper's team also argues that overturning Proposition 8 would undermine democracy by nullifying the will of the people. Voters adopted the state constitutional amendment in November 2008 specifically to overturn a decision by the California Supreme Court legalizing gay marriage the previous June. But the U.S. Constitution is supposed to trump current opinion sometimes, as when the Supreme Court struck down state laws barring different-race marriage in Loving v. Virginia in 1967. Most Americans did not agree with that result. Was Loving wrong? This is a legal landmine, an argument that could blow up in the judge's face if he gets near it. Judge Walker will not go there.

Another argument made by Proposition 8's defenders is that recognition of same-sex marriages would undermine civil marriage as an institution. Yet civil marriage has done fine in marriage-equality jurisdictions like Massachusetts and Canada. Marriage rates declined in the Netherlands after that state recognized same-sex marriages 2001, but the decline began a generation earlier. Gay marriage is not the variable driving the change. In some European countries, such as Denmark, civil marriage rates actually perked up (and divorce rates declined) after the state recognized lesbian and gay unions.

Ultimately, the defense of Proposition 8 rests less on evidence of tangible harm to anyone or anything, and more on the expressive function of law. Civil marriage has traditionally been one man, one woman. While other features of the institution have changed, this one has not. Shouldn't the citizenry have the right to retain this stable feature, which symbolically ties the state institution to procreation and child-rearing? The defenders maintain that this is a rational basis for the exclusion of gay couples from marriage. They caution the judge that if he finds this ballot initiative rested on nothing more than prejudice, the popular backlash will undermine the legitimacy of the federal courts.

The defenders might win with that argument—but only if Judge Walker also finds that Proposition 8's discrimination is not subject to strict scrutiny. If a law denies some Americans a fundamental right (like voting) or treats a minority differently based upon a suspect classification (like race), federal judges demand more than a rational basis for that law. The state must demonstrate that such discriminations are actually necessary for the success of important public policies—in the legal lingo, the discrimination must be narrowly tailored to serve a compelling state interest.

In Loving, the Supreme Court found that the state could not deny people of different races the fundamental right to civil marriage. Ted Olson and David Boies, who represent the plaintiffs in the gay marriage trial, argue that the fundamental right recognized in Loving ought to be extended to same-sex couples. The Supreme Court has applied Loving to protect the marriage rights of deadbeat dads and convicted criminals. So surely committed lesbian and gay couples should enjoy it as well. Because none of the defenders' symbolic or speculative justifications for the discrimination in Proposition 8 meets the evidentiary standards of strict scrutiny, the law violates the Equal Protection Clause.

The defenders respond by taking us back to the notion that marriage is by definition one man, one woman. It is this "traditional marriage" that the court has ruled to be foundational to American law and culture since the colonial era. Olson and Boies reply that the constitutional burden is on the defenders to show that why the institution should not be opened up to committed gay and lesbian couples.

This takes us to the question: What is the purpose of civil marriage? Is it centrally a matter of procreation between the spouses, as the defenders stress? Or is it mainly a matter of a committed relationship between two partners? If Judge Walker is persuaded of the latter understanding of marriage, he ought to rule that Proposition 8 denies plaintiffs their fundamental right to marry. This is the logical ruling, but the judge may see a landmine here as well. Only one appellate court has ever found that lesbian and gay couples can invoke Loving's fundamental right to marry. Moreover, some analysts warn that extending the right to marry to gay couples means it will then have to include polygamous and incestuous unions. Olson and Boies reply that the state can easily justify excluding them.

Assume that Judge Walker rules that lesbian and gay couples do not enjoy a fundamental right to marry. Olson and Boies have another avenue to strict scrutiny (and victory): If they can show that the plaintiffs' sexual orientation is a suspect classification, as we mentioned earlier, then it would be discrimination to exclude them from the institution of marriage, whether or not it is a fundamental right. The Supreme Court has never decided whether sexual orientation is a suspect classification, and its precedents offer uncertain guidance.

One lavender herring, subject to much examination during the trial, is the argument that suspect classifications must be "immutable," namely, traits that people cannot change. The Supreme Court has never held that immutability is a requirement for suspect classifications, and some traits considered suspect (like religion) are more obviously mutable than sexual orientation. The reason the state should not discriminate on the basis of religious affiliation is not that it is unchanging, but instead that religious orientation is a matter best left to the individual and is generally unrelated to legitimate state interests.

A more serious contention is that a classification ought not be deemed suspect unless the affected social group lacks access to the political process. Thus, defenders argue, it was valid for federal judges to overturn discrimination based on race in the 1950s and '60s, because racial minorities were politically powerless during the Jim Crow era. In contrast, gay people have scored many political successes in the California legislature. With straight conservatives such as Cindy McCain and Ted Olson speaking out against Proposition 8, gay rights advocates stand a fighting chance of reversing the law at the polls in 2012.

Olson and Boies respond that the Supreme Court has never required "political powerlessness" to be a prerequisite for heightened scrutiny. In 1976, the court ruled that sex is a sort of suspect classification (giving sex its own standard of intermediate scrutiny), even though Congress and state legislatures were responding to women's interests. Cooper replies that this is another landmine: If Judge Walker short-circuits the California political process, where marriage equality advocates are doing pretty well, there will be a tremendous backlash against his ruling as an example of judicial activism.

However Judge Walker rules, his opinion will garner enormous public attention, and his findings of fact will boost the prospects of one side or the other on appeal. But the trial and the district court's decision are of course only the first step. The case will go next to the U.S. Court of Appeals for the 9th Circuit. And if the voters don't moot it by repealing Proposition 8 in 2012, the last stop will probably be the Supreme Court. The justices would then decide for themselves which arguments are lavender herrings, which are landmines, and what to do.

Yale Law School professor William Eskridge and attorney Darren Spedale are co-authors of Gay Marriage: For Better or for Worse? What We've Learned From the Evidence.