Gay marriage ruling anchored in factual findings

As lawyers last year prepared for the federal case that would challenge California’s ban on gay marriage, U.S. District Chief Judge Vaughn R. Walker told both sides that he saw his role as a finder of facts who could produce a record that would inform higher courts grappling with constitutional matters.

FOR THE RECORD: In Friday’s Section A, an article about Wednesday’s U.S. District Court ruling that overturned California’s ban on gay marriage and the measure’s potential fate in the U.S. Supreme Court said that Justice Anthony M. Kennedy wrote an opinion in 2007 striking down a Colorado ballot initiative that prohibited local governments from passing anti-discrimination ordinances based on sexual orientation. That ruling was in 1996.

The ruling he released Wednesday declaring the ban unconstitutional reflected that inclination. Although other rulings on gay marriage have emphasized legal theory, Walker’s 136-page decision leaned heavily on findings of fact based on the testimony he heard during a 13-day trial in January.

At least some legal analysts believe that Walker fashioned his order to force judges on the U.S. 9th Circuit Court of Appeals and the U.S. Supreme Court to confront the practical reality of gay unions, rather than treating them as a legal abstraction.

Some analysts also said the reliance on the trial testimony might help Walker’s decision survive an appeals court’s scrutiny because appellate judges typically give a trial judge’s factual findings some deference.

Most legal analysts expect the case ultimately will be resolved by the U.S. Supreme Court. Four conservative justices on the high court are widely believed to be unlikely to support a decision recognizing a constitutional right of gays to marry.

Four others, including newly confirmed Justice Elena Kagan, seem more likely to agree with Walker that the Constitution does not allow states to treat gay couples differently from heterosexual ones, analysts said.

The deciding vote, most analysts agree, probably would belong to Justice Anthony M. Kennedy. In recent years, Kennedy has been the author of two major decisions striking down laws seen as discriminating against gays.

In 2003, he wrote the opinion invalidating a Texas law that made gay sex acts a crime, and, in 2007, he struck down a Colorado ballot initiative that prohibited local governments from passing anti-discrimination ordinances based on sexual orientation.

Walker peppered his ruling with numerous citations to Kennedy’s two opinions. But at least some analysts said Walker did not go far enough in trying to allay concerns Kennedy may have about same-sex marriage.

“If you were really trying to be sensitive to Justice Kennedy, you would not be so quick to dismiss the idea of incrementalism,” the belief the law should evolve slowly as a nation’s views develop, said UC Davis law professor Vikram Amar. “Kennedy is very sensitive to trends.”

All but five states and the District of Columbia ban same-sex marriage, and the San Francisco jurist’s ruling made only an oblique mention that California was part of the national majority on the marriage question, Amar said.

By contrast, Kennedy’s previous gay rights rulings overturned laws that already had become “outliers,” Amar said. Virtually no states still enforced criminal sodomy laws at the time Kennedy invalidated Texas’ statute, for example.

Jon W. Davidson, legal director of Lambda Legal, a civil rights organization focused on sexual orientation law, agreed that Walker’s factual findings would carry less weight than the kind of straightforward, so-called “whodunit” facts that higher courts let trial judges determine.

But the evidence cited by Walker will “make it harder for higher courts to make the kind of faulty assumptions and speculations that have appeared in other appeals court rulings,” such as the argument that children fare better with opposite-sex parents and that sexual orientation, unlike race, can be changed, Davidson said.

Still, Davidson said he was far from confident that Walker’s sweeping decision would win five votes on the high court.

After ruling Wednesday, Walker signed another order that put his decision on hold until he decides whether same-sex marriages should be permitted pending appeals. Written arguments on that question are due Friday.

Legal analysts said Walker could issue a stay to postpone the effect of his ruling until the 9th Circuit, the intermediate court that will review the case, has time to decide whether the decision should be placed on hold.

“The less chaos and panic created around this opinion, the better as a political matter and matter of appellate review, " said Douglas NeJaime, a professor of family and sexual orientation law at Loyola Law School.

“That is, he might not want to invite the 9th Circuit and the Supreme Court [through Justice Kennedy] to deal with this case in the form of an immediate stay issue, and instead might benefit from allowing the case to work its way through the appellate process without creating new realities on the ground in the meantime.”

Joan Heifetz Hollinger, a UC Berkeley law school lecturer and coauthor of a friend-of-the-court brief supporting gay marriage rights, observed that Walker was “adamant” in his ruling that " Proposition 8 should be gone.”

“But, on other side, he’s already been sort of slapped on the wrist by having his desire to broadcast the proceedings overruled,” she said.

Just as the Proposition 8 trial was starting, the high court ruled 5 to 4 to overturn a decision by Walker to permit broadcast of the trial to other courthouses in the West. Walker also had hoped to put some of the testimony on the court’s website for public viewing.

UC Irvine Law School Dean Erwin Chemerinsky said the practical impact of allowing more gay weddings in California may affect whether Walker and higher courts permit Wednesday’s ruling to go into effect during time-consuming appeals.

“The longer same-sex marriage occurs in California — the more gay and lesbian couples that are married — the harder it will be ultimately to reverse Walker and uphold Proposition 8,” the constitutional law professor said.