Perry Follow-up: The Facts Matter; Who's Going to Appeal this Thing?

Some folks in comments before were super-bitchy that I wrote: "I haven't had a chance to dig into the details yet, but as I expected, Judge Walker made extensive factual findings that will insulate his decision on review."

Here's why that matters: in an equal protection or due process challenge like this case, findings of fact are reviewed on appeal for "clear error" while legal conclusions are reviewed "de novo." In other words, the appelate courts will give great deference to the trial judge's findings of fact, but can completely throw his legal conclusions out the window.

The fact that Judge Walker made pages and pages of factual findings indicates to me that he was extremely conscious of the standards of review and used the shoddy performance of proponents to produce evidence (who were actively sabotaged by putative-defendant the State of California) as a means of protecting his decision somewhat from appellate review.

What are some of these now-protected factual findings, you might ask? Ambinder summarizes them. The biggies for purposes of appealing this case:

1. Marriage is and has been a civil matter, subject to religious intervention only when requested by the intervenors. 2. California, like every other state, doesn't require that couples wanting to marry be able to procreate.

3. Marriage as an institution has changed overtime; women were given equal status; interracial marriage was formally legalized; no-fault divorce made it easier to dissolve marriages.

5. Same-sex love and intimacy "are well-documented in human history."

10. "Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital union."

11. "Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals."

12. "The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships."

13. "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."

The findings will only be overturned on appeal if the evidence of record indicates they are "clearly erroneous." Because proponents presented relatively little evidence, that's highly unlikely.

More importantly for Judge Walker's purposes, those findings go directly to the legal questions in the case. If, for example, Judge Walker is right that domestic partnerships do not provide equivalent status as marriage then it becomes very difficult for the appeals court to say there's no problem with Prop 8 because gays have domestic partnerships. The factual finding is that gays are still worse off. So, by writing it this way, he has protected his legal conclusions by enshrining their factual predicates.

Now there's nothing improper about that, generally. For example, in a bench trial for theft, if the judge determines that the defendant stole from the victim, well, of course he's going to make that factual finding. The legal conclusion that the defendant is guilty follows. It makes sense that the appeals courts would give deference to that factual finding because the trial judge was in the room, got to see all the testimony and evidence. He's "closer" to the facts, so his understanding of the facts gets some deference. On the other hand, the trial judge has no more facility with the legal question -- whether the determined facts add up to a conviction -- than the appeals courts, so there's no deference.

But it's a more difficult situation when we're not talking about obviously factual determinations. Judge Walker made a factual finding that sexual orientation is a fundamental characteristic of a human being. Eesh, "fundamental characteristic" sounds awfully legalistic to me. And his second factual finding, that California has no marital requirement of fertility, goes a long way towards tossing out the proponents' entire argument that traditional marriage is necessary to promote procreation and a stable environment for child-rearing.

Anyway, that's why I wrote "I haven't had a chance to dig into the details yet, but as I expected, Judge Walker made extensive factual findings that will insulate his decision on review." He made pages and pages of factual findings. I expected him to do that because ain't nobody that doesn't expect this decision to be on its way to the Supreme Court.

Oh and something else to worry about: Can the proponents appeal? I think so, but I don't know so. The case was initially (and still, technically) Perry v. Schwarzenegger. That is, the State of California is the named defendant. But Governor Schwarzenegger declined to defend Prop 8, so the Protect Marriage folks intervened. They've been referred to throughout the litigation as "the proponents", but their legal status is "defendant-intervenors."

I have no idea if a "defendant-intervenor" can appeal as if he were a defendant (maybe some lawyer-morons can put me some knowledge). Because I expect they're going to have to. Governor Schwarzenegger, who already declined to defend Prop 8, isn't going to do it.

posted by Gabriel Malor at 08:24 PM

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