Prop 8 & the Rule of Facts

How Not to Settle the Gay Marriage Question

One of the many ways the Constitution’s framers showed their collective wisdom was by embedding the rule of law into the very framework of our system of government. Judicial review of popularly enacted laws keeps the majority accountable to underlying constitutional principles. Of course, one person’s core constitutional safeguard is another’s judicial activism run amok. And so, in a range of hot-button “culture war” cases, lower courts have tried to steer clear of the dreaded “judicial activist” label by shifting their analysis from the constitutional principles themselves to the facts through which the principles may be invoked. At times these days, the rule of law looks more like the rule of facts.

Facts were certainly the unmistakable focus of Judge Vaughn Walker’s recent ruling in Perry v. Schwarzenegger. In striking down Proposition 8, the California law limiting valid marriage to that between “a man and a woman,” Walker’s 136-page opinion devoted a mere 26 pages to legal analysis, while 100 were spent reciting and evaluating the evidence presented at trial. For a judge looking to transcend the ideological labels that often attach to high-profile cases, this is an understandable strategy. And indeed, Judge Walker’s work was quickly praised by many as “a very careful analysis,” “meticulously crafted,” a “comprehensive, detailed decision.” Yet a constitutional analysis of same-sex marriage is not an obvious fit for an evidentiary trial, which is more generally associated with such questions as whether driver error or brake failure caused a traffic accident.

Consider the eighty findings of fact made by Judge Walker, many of them far more speculative than the usual “plaintiff drove his car too fast on wet pavement” variety. Given the court’s eventual conclusion that a ban on same-sex marriage lacks a rational basis, the factual findings needed to show that same-sex marriage harms no legitimate state interest. This was a tall order, and Walker marshaled the facts aggressively—and, critics say, overconfidently. Some of his fact findings come across as premature, portraying contested and unverified issues as conclusively settled. See, for example, no. 55 ("Permitting 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"); no. 70 ("The gender of a child's parent is not a factor in a child's adjustment"); and no. 71 ("Having both a male and a female parent does not increase the likelihood that a child will be well-adjusted").

Such uncertain “facts” form a slippery basis for judgment. But far more problematically, the very act of using facts to resolve deep cultural divisions effectively discards many of the weightier questions that make such issues worthy of deep societal reflection in the first place. Significantly, unlike many political arguments for and against same-sex marriage, Walker’s constitutional mandate does not emanate primarily from our society’s understanding of marriage or from some broad moral narrative. Instead, it takes shape from the tallying of “harms.” The logic goes like this: If extending marriage to same-sex couples does not cause a harm demonstrable through evidence in court, then same-sex marriage must be allowed, since the harms to gays and lesbians—both psychological and, in states that lack comprehensive civil-union statutes, material—are readily discernible. And so the debate about same-sex marriage is over, summarily ended by judicial fiat.

Harms surely must be part of our conversation about marriage’s future; indeed, a wider awareness of the harms suffered by committed same-sex couples has likely fed growing public support for same-sex marriage. But the public conversation itself translates awkwardly, at best, into the courtroom, where evidentiary rules operate as a stringent filter, and outcomes turn on the strategies and competence of adversarial attorneys. In Perry v. Schwarzenegger, the attorneys defending Proposition 8 chose to call only two expert witnesses (against nine experts and eight lay witnesses called by their opponents), and both of them were deemed by the court to be lacking expertise in the fields about which they were testifying. Is it any wonder that Proposition 8 did not fare well in Walker’s analysis?

With current polling data showing support for same-sex marriage increasing dramatically in younger generations, it seems clear that same-sex marriage is coming in the United States. But the process by which it will arrive remains an open question. Political resolutions tend to reflect a broader set of concerns than do judicial ones, and while the political path can be frustratingly slow and messy, its capacity for nuance equips it to handle issues such as same-sex marriage better than our courts can. Same-sex marriage legislation was enacted in New Hampshire, for example, only after intensive negotiations over statutory language to protect religious freedom.

Judges decide cases; they designate winners and losers. Under the auspices of fact-finding, even a well-intentioned judge can send troubling signals about who the “losers” are in the battle over marriage. Consider Walker’s finding no. 77: “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” As support, the judge cites teachings from various Christian traditions, including the Catholic Church, that homosexual acts are sinful. For religious liberty advocates concerned about the Supreme Court’s recent decision that Christian student groups are not shielded by the First Amendment from the reach of a state university’s antidiscrimination policies, this finding was not reassuring.

More broadly, if courts are to be tasked with charting the course of society’s foundational institutions by tallying “harms,” it’s important to ask what we have lost in the process. The question “What is marriage?” may not lend itself to easy answers or evidentiary proofs, but it is an essential question, one that societies have been addressing for centuries. Citizens today disagree with the views of earlier eras, just as citizens even ten years from now will likely disagree with ours. The cultural and ultimately political processes by which the history of civil marriage continues to unfold is messy, halting, and frequently infuriating to participants of all ideological stripes. But replacing those processes with one judge’s evaluation of a few expert witnesses carries a cost. Courts have played a role in shaping civil marriage in past eras, particularly regarding interracial marriage, but not in redefining an element of marriage deemed nonnegotiable by a broad swath of society spanning many otherwise disparate historical eras.

The aggressiveness of Walker’s fact-finding is perhaps best reflected in his remarkably broad definition of marriage. Based on the trial testimony of a historian, the judge found that

marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.

Operating under that definition, Walker then found that “same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.”

Obviously, the question of whether same-sex couples are identical to opposite-sex ones in their ability to form successful marital unions depends on how we define marital unions. Since legislatures have rarely bothered to define marriage beyond its composite elements (notably, one man and one woman), this is not an inquiry that can be settled by a quick look at the law books. And since our society is still in the middle of an ongoing conversation over the nature of marriage, neither can it—or should it—be settled by the testimony of a single historian. When a judge takes a hotly contested definition of marriage and labels it a “finding of fact,” we have not discovered an ingenious end-run around the turmoil of our culture wars. We have simply witnessed another volley in those wars. Tempting as it may be, the rule of facts cannot escape the moral controversy enveloping the marriage debate. Pretending otherwise serves neither the long-range interests of same-sex marriage advocates nor the vitality of our political community.

Related: Sex, Religion & Prop 8, by Margaret O'Brien Steinfels; Bad Faith, by Robert K. Vischer

Published in the 2010-09-10 issue: 

Robert K. Vischer is the dean and Mengler Chair in Law at the University of St. Thomas School of Law in Minneapolis.

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