Home > Academic Articles, Constitutional Rights > An Appeal-Resistant Recognition of Fundamental Rights

An Appeal-Resistant Recognition of Fundamental Rights


  • Judge Vaughn Walker of the Northern District of California recently ruled that the U.S. Constitution gives same-sex couples the right to marry.
  • The opinion rested first on the Due Process Clause, finding that marriage is a fundamental right and concluding that our contemporary understanding of marriage encompasses same-sex marriage.
  • The opinion also rested on the Equal Protections Clause and rejected all proffered state interests in limiting same-sex marriage as irrational.
  • Importantly, the opinion relied not on conclusions of law but instead on appeal-resistant findings of fact.
  • Though a backlash to granting same-sex marriage rights is possible, the lack of legitimate state interests makes the backlash less likely when compared to the backlash against abortion rights.

This article is by Keith Southam, a 3L from Chicago-Kent.

Proponents of same-sex marriage scored a major victory recently in the federal Proposition 8 case.  Perry v. Schwarzenegger.  No. C 09-2292 VRW (N.D. Cal. Aug. 5, 2010).  In the opinion, Judge Vaughn Walker concludes that the United States Constitution guarantees same-sex couples the right to marry.  His decision is remarkable because of what it concluded, what it did not conclude, and its prospects going forward.

The ruling harkens back to Romer v. Evans in which the U.S. Supreme Court found that a referendum in Colorado had violated the U.S. Constitution.  See 517 U.S. 620 (1996).  That referendum precluded “homosexual and bisexual” Coloradans from seeking anti-discrimination laws in Colorado.  The Supreme Court found that the only basis for the referendum (a state action) was irrational animus, thus violating the Equal Protection Clause of the Constitution.

Judge Walker could have concluded that the Proposition 8 referendum in California, which took away the right of same-sex couples to marry, similarly violated the Constitution.  In effect, Judge Walker could have concluded that Romer v. Evans stood for the proposition that once a right has been granted, mere animus cannot suffice to take that right away.  See also Goldberg v. Kelly, 397 U.S. 254 (1970) (once welfare benefits have been given, an evidentiary hearing must precede termination of the benefits).  But instead, Judge attacked the $10,000 question: is there a fundamental right under the Constitution for same-sex couples to marry?

His answer came from two clauses of the U.S. Constitution: the Due Process Clause and the Equal Protection Clause.  Starting with the Due Process argument, Judge Walker phrased the issue carefully.  Rather than ask whether same-sex marriage is so fundamental that it is protected by the Due Process Clause, he noted the much less controversial conclusion that marriage in general is a fundamental right protected by the Due Process Clause.  See, e.g., Loving v. Virginia, 388 U.S. 1 (1967) (overturning anti-miscegenation laws); see also Turner v. Safely, 482 U.S. 78, 95 (1987) (“[T]he decision to marry is a fundamental right.”); see Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”).

With that in mind, Judge Walker recounted that while the right of marriage has remained unchanged, our society understanding of what marriage actually is has changed.  For example, we now reject the idea that marriage subjugates a woman to a man and also reject racial limitations on marriage.  But as these understandings have come about, the fundamental right has not changed from “subjugation-marriage” to “racial-purity-marriage” to “opposite-sex-only-marriage.”  Instead, “marriage” stays the same, while our understanding changes.  Looking at contemporary society, Judge Walker concluded that the legal definition of marriage has largely tracked the societal understanding of marriage in rejecting gender norms in marriage but that it has retained one gender norm: that a woman may marry only a man and vice-versa.  This, he concluded, is an impermissible limitation on marriage, imposed by now-outdated gender norms.  For that reason, Judge Walker concluded that Proposition 8, which codified the antiquated gender norm, was unconstitutional.

Judge Walker’s further concluded that Proposition 8 violated the Equal Protection Clause.  This clause requires scrutiny of laws that apply differently to different groups of citizens. For example, laws that classify based on race are subject to strict scrutiny and often fail unless they meet a compelling state interest and are narrowly tailored to use the least restrictive means possible.  Classifications based on gender similarly require an exceedingly persuasive justification without post-hoc rationalization.  In contrast, most other laws (even those that classify on less suspect grounds) are permissible where they have a reasonable relation to a legitimate government interest.  This is known as rational-basis review.

While stating that Proposition 8 essentially classified based on gender norms (see above), Judge Walker applied rational basis review.  In essence, Judge Walker did make a legal conclusion that sexual orientation is a suspect class.  Instead, his powerful holding was that even under rational basis review, Proposition 8 was unconstitutional.  Like the anti-anti-discrimination measure in Colorado, which was based on irrational animus, Judge Walker held that the justifications against same-sex marriage were irrational.  He rejected six proffered justifications for precluding same-sex couples form marrying: 1) preserving the current definition of marriage, 2) caution toward societal change, 3) promoting opposite-sex over same-sex parenting, 4) protecting the freedom of same-sex marriage opponents, 5) treating opposite- and same-sex couples differently, and 6) “any other conceivable interest.”  Judge Walker considered each argument in detail but rejected them all.  He found that those state interests that might be legitimate bore no reasonable relationship to Proposition 8.  He powerfully concluded that:

[m]any of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same sex couples … The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same sex couples are equal.  Proposition 8 violates the Equal Protection Clause because it does not treat them equally.

Perry, No. C 09-2292 VRW at 132 (internal citation omitted).

Perhaps even more powerful than this conclusion, though, are the factual findings upon which it rests.  Judge Walker made 80 factual findings based on the evidence presented at trial.  Most of the factual findings address the heart of the understanding of marriage and the proffered state interest, and all of the findings are supported by specific citations to evidence in the record.  For example, factual finding #33 indicates: “Eliminating gender and race restrictions in marriage has not deprived the institution of marriage of its vitality.”  Id. at 66.  Findings of fact such as these typically receive little scrutiny on appeal and are overturned only where clearly erroneous.  In contrast, legal conclusions, especially conclusions of Constitutional law, are harshly scrutinized.  Because Judge Walker arguably did not make conclusions of law but only summarized settled law, and because his holding was based on his factual findings, appellate review of his holding is likely to be deferential.  That is to say, it is more likely that appellate view will uphold Judge Walker’s holding where they are based on fact rather than law.  Furthermore, Judge Walker insulated his decision by offering two independent justifications: one under the Due Process Clause and the other under the Equal Protection Clauses.  Thus, to overturn his decision, the Ninth Circuit or the U.S. Supreme Court will have to conclude that neither the Due Process clause nor the Equal Protection clause require recognition of same-sex marriages.  The courts will additionally have to find some way to sidestep Judge Walker’s factual findings.

Both sides indicated a likely appeal, and if the Ninth Circuit upholds the decision, same-sex marriages would become constitutionally mandated in Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, and Washington.  In contrast, same-sex marriages would not be mandated under the U.S. Constitution in any other state or circuit.  The Supreme Court would likely grant certiorari to avoid this split.  However, this raises the specter of the Court jumping into another issue in the so-called “culture-war.”

The Court famously stepped into a “culture-ware” issue in1973 when it decided Roe v. Wade.  410 U.S. 113 (1973).  Roe v. Wade established that women have a fundamental right to control what happens to their body.  The case also established that the state has a valid interest in protecting fetal life and in protecting the health of the mother.  Thus, the debate for the Court was not whether a right existed or whether the state’s actions were valid, but how to balance the two against each other.  The Court broke pregnancy up into trimesters, allowing unrestricted abortions in the first trimester and prohibiting almost all abortions in the third trimester.  The second trimester required a closer balancing test to weigh the fundamental right against the state interest.  And while the trimester system was later abandoned, it highlights the important tension between the fundamental right and the state interest.  This tension between the fundamental right and legitimate state interest helps explain the backlash that followed Roe v. Wade.  Could such a backlash occur if the Supreme Court upholds Judge Walker’s decision?

In 1973, when Roe v. Wade was decided, abortion on demand was available in four states: Alaska, Hawaii, New York, and Washington. At that time, 16 other states allowed for abortions in cases of rape, incest, health of the mother, or for fetal defects.  Today, in 2010, same-sex marriage is available in Washington, D.C., plus five states (excluding California): Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont.  In 2010, a total of 13 other states (including California) provide civil unions, grant enumerated rights for domestic partners, or recognize same-sex marriages from other jurisdictions.  Thus, the landscape of state laws today on same-sex marriage mirrors where the 1973 landscape on abortion.  This suggests that a backlash could happen, but that is not the end of the story.

Public opinion about abortion has not significantly changed in the recent past.  Unfortunately, reliable statistics are hard to find regarding public opinion before Roe v. Wade.  Thus, it is not clear if Roe v. Wade, “froze” what would otherwise have been a trend in support of or against abortion access.  In looking at same-sex marriage, however, one trend is clear: the current opinion is moving in favor of same-sex marriage.  Indeed, while the youth of today largely mirror their parents’ and grandparents’ opinions on abortion access, the youth of today are more likely than their parents or grandparents to support same-sex marriage.  Would a Supreme Court decision on the matter “freeze” public opinion?

This is a possible outcome, but perhaps more appropriate precedent than Roe v. Wade is Loving v. Virginia.  In 1970, when Loving v. Virginia overturned bans on interracial marriage, 65,000 black-white couples married in the United States.  In 2005, 422,000 black-white couples married.  Moreover, Americans, especially younger Americans, “overwhelming” support interracial marriage.  Furthermore, whereas the state interest in protecting fetal life and maternal health is reasonably related to abortion restrictions, banning interracial marriage bears no reasonable relation to a legitimate state interest.   See Loving v. Virginia.  Similarly, Judge Walker’s opinion makes it clear that the proffered bases for limiting same-sex marriage are not reasonably related to legitimate state interests.

To quote Mildred Loving, whose marriage the Supreme Court affirmed in 1970, “all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have th[e] freedom to marry.”  In the end, it seems likely that this emotional appeal, most cogent to the youth of America, will win over the counterarguments against same-sex marriage.  Whether it will sway the Supreme Court, though, is a different question.

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