iOS app Android app More

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors
Howard Schweber

Howard Schweber

Posted: January 10, 2010 05:53 PM

Perry v Schwarzenegger Begins Today

What's Your Reaction:

Today (Monday, January 11), is the beginning of the trial in the case of Perry v. Schwarzenegger, the highly publicized case challenging the constitutionality of Proposition 8. The case was the brainchild of political strategist Chad Griffin and is being brought by prominent lawyers Ted Olson and David Boies (you can read the Complaint here.) The case has a fascinating and well publicized history, including initial opposition from gay rights groups who felt that it was not the right time for a courtroom challenge and the careful calculation that the combination of such a prominent Republican lawyer with such a prominent Democratic lawyer would diminish the likelihood of political partisanship hijacking the legal issues in the case (as some people say occurred in the last major case in which these two lawyers met - that would be Bush v. Gore.)

So, three questions. First, is this trial, in fact, a strategic error? Second, what are the main issues involved? And third, what will the legal defenders of Proposition 8 have to offer in the way of arguments?

I do not share the view that this case is a strategic error, even though I am highly doubtful that there are five votes on the United States Supreme Court to overturn laws in 37 states. That's not because of any weakness in the constitutional arguments involved, it's because of the political reality that the Court is highly jealous of its institutional position, which it defends in part by a carefully calculated timidity. Contrary to some popular views, the fact is that many of the justices go to great lengths - including the development of elaborate theories of "political questions," "justiciability" and judicial deference to state legislatures - to avoid taking actions that will upset too many people all at once. So the dark and depressing truth is that regardless of what happens in the District Court, if and when Perry gets to the Supreme Court I expect it to lose.

But! Losing is part of the process. To put it bluntly, without Bowers there could not have been Lawrence. That's not how a lot of gay rights activists see it. Margaret Talbot, in an excellent New Yorker article, describes the reaction this way: "It was seventeen years before the Court was willing to revisit the issue, in Lawrence v. Texas, though by then only thirteen states still had anti-sodomy statutes." This is the purely institutionalist, politicized view of the Court's work that I myself just evinced. But there's more to the story than that. There is also an intellectual element involved; arguments that seem to make sense at one point in time may cease to appear sensible later. And that's the real point of a case like Perry. When Lawrence reached the Supreme Court and the justices revisited the logic and rhetoric of Bowers, six of them found it impossible to take those arguments seriously. It was the internal incoherence of the reasoning in Bowers, I believe, that motivated Justice Kennedy in particular to recognize the necessity of overruling its central holding.

That brings us to the second question: what are the main issues to watch for? A (very) little explanation. Any case about a constitutional challenge to a law has two parts: first the judge has to decide what standard of review to apply, then he or she has to decide whether the law in question violates that standard. The lowest standard is "rational basis"; if this standard is applied, a law is constitutional unless it is not rationally related to any legitimate state interest. Pretty much the only time a law fails this test is when an asserted legitimate interest is found to be a pretext for "bare animus." That is, by long tradition, a laws whose purpose is to express the sentiment "we don't like you people" is unconstitutional because the expression of that animus is not a legitimate state interest. In the two cases in which the Supreme Court has struck down laws that single out homosexuals - Romer v Evans and Lawrence v Texas - the justices applied rational basis review on just these grounds. Since they found that the laws failed rational basis review, there was no reason to ask whether they would also have failed more demanding, stricter forms of scrutiny.

The alternatives are some version of heightened scrutiny, of which the best-known is "strict scrutiny." That's the standard that is applied to laws that treat people differently based on their race; for example, where the Supreme Court strikes down a race-based affirmative action program, they do so on the grounds that it has failed strict scrutiny. If strict scrutiny is applied, a law is unconstitutional unless it is narrowly tailored to serve a compelling government interest. It is generally assumed that if laws that discriminate on the basis of sexuality were subjected to strict scrutiny, they would fail.

All of this brings us to tomorrow's trial. There are things that the Olsen-Boies team is aiming to make the trial a pure constitutional debate. A California Lawyer article about the case mentions an exchange from way back in July was mentioned. The judge, Vaughn Walker (more on him in a moment) was presiding over a case management conference. He asked Olsen how much time the plaintiffs would need for discovery. "There certainly is some discovery that is going to be necessary here, isn't there?" "I'm not sure," Olson replied. "Is there discovery necessary? If there is, what is it? What form would it take?"

No discovery means no need to present facts about the other side; the argument is going to be made on expert testimony and legal argument. In fact, reports are that there will be a certain amount of evidence presented by the plaintiffs, primarily intended to demonstrate that Proposition 8 was born out of the kind of "pure animus" that violates the anti-denigration principle. Which gets us into some tricky territory. Whose "animus" counts in the case of a referendum question? That of the people paying for the advertisements? The authors of the proposition? The voters? Justice Scalia, in particular, frequently pours scorn on the idea that a legislative body can be determined to have an "intent"; what room does that leave for finding an intent in the actions of the voters in a referendum? To win, in other words, Olsen and Boies have to make the difficult case: that there is no conceivable legitimate purpose that is served by Proposition 8. What will the defenders of the proposition argue?

Some time ago I wrote a post in which I referred to a particular argument about same sex marriage as "the worst argument in the world," a transparent play on Keith Olbermann's (in)famous "worst person in the world" segments. The argument I chose was the one that said that states have a legitimate reason to prevent same-sex marriage on the grounds that mixed-sex marriages are better for children. There are a lot of reasons why that is a stupid argument, but stupidity alone is not enough to earn an argument the "worst in the world" designation. What takes the argument about child welfare beyond the realm of merely stupid is its ultimate implication. The assertion is that, all things being equal, same-sex parents are not at "good" as mixed-sex parents. That assertion is already nonsensical: all things are never equal, so what's the justification for singling out this one alleged departure from the parental ideal to prevent a category of marriages - do people making this argument seriously argue that allowing convicted child molesters to marry but preventing loving same couples from marrying makes sense? And besides, the data do not remotely support the assertion that, all things being equal, same-sex or mixed-sex parents are better parents, partly because the "all things being equal" condition is impossible to achieve in any kind of natural experiment. And the presumptive fact that children of same-sex couples are wanted children further undermines the plausibility of the claim.

But none of that was the central point. The central point was this: suppose that for the sake of argument we accept the proposition that, all things being equal, same-sex couples provide a worse parenting environment than mixed-sex couples. So what? That is, how does that translate into a rationale for banning same-sex marriage? The answer must be - it logically has to be - that if same-sex couples are not permitted to marry, they will (in at least some cases) refrain from having children, who will thus be spared the harm of inferior parenting. But it is not the case that we are talking about the distribution of a fixed pool of children to households here, as in an adoption case. In order for the argument about parenting to lead to a conclusion in favor of banning same-sex marriage it must be - it logically has to be - the case that such children are better off never being born at all than being born into families in which the parents are of the same sex. And that, ladies and gentlemen, is the Worst Argument in the World.

There are variations on the WAitW. In 2006, New York's highest court upheld a ban on same-sex marriage primarily on the grounds that mixed-sex couples are worse parents than same sex couples. "Heterosexual intercourse has a natural tendency to lead to the birth of children ... The Legislature could find that such relationships are all too often casual and temporary...It could thus choose to offer an inducement - in the form of marriage and its attendant benefits - to opposite-sex couples who make a solemn, long-term commitment to each other." By contrast, the children of same-sex couples are presumably not the result of casual relationships, and therefore no such inducement to stability is needed. (Hernandez v. Robles.)

That was an argument brought under the New York State constitution; I am not familiar with a parallel argument in federal constitutional jurisprudence, but it's tempting to try and think of analogies. "Churches require tax exemptions because otherwise they would not engage in charitable activity at all, whereas secular organizations might engage in charitable work even without the inducement of the exemption because of their superior moral character." That doesn't quite capture the element of accidental pregnancy. How a rule limiting student loans to a category of student thought most likely to drop out, on the grounds that other students don't require the same financial incentive to remain in school? Closer, but still not quite right...

The other very popular argument is that allowing same-sex marriage would hurt heterosexual marriage. The question, of course, is how? Opponents of same-sex marriage have a hard time answering that question: they tend to resort to vague assertions about "sending a message" that marriage is not to be taken seriously, or the fear that if the same-sex option were available some of us presently in mixed-sex marriages would be tempted by the alternative. These are, to put it mildly, analytically weak claims.

Almost the most interesting aspect of the proceedings is the fact that at the end of each day, videotape of the proceedings will be uploaded to Youtube pursuant to an order by the judge. It should make for some great video, particularly given the judge. Vaughn Walker was appointed by President George H.W. Bush. He is generally a libertarian-leaning law-and-economics sort of conservative with a reputation for independence (Disclosure: I appeared before him once during my legal career, arguing a motion, and found him to be smart, tough, and fair. I think I won, but I really don't remember. The important thing is that he laughed at a joke I made about the fact that his courtroom was running behind schedule.)

In short, Walker may be an excellent judge for this case: he cannot be dismissed as a left-leaning liberal, but his conservatism is of the sort that demands evidence and explanations for broad assertions. On the other hand, he may be sympathetic to the kind of balancing-of-incentives arguments that persuaded the New York State Court of Appeals, which in my view are alien to an evaluation of constitutionally guaranteed rights. But at a minimum, his courtroom presence should make for some awfully good courtroom video. Back to the argument that allowing same-sex marriage would harm mixed-sex marriages. Here's a description of a moment at a pre-trial hearing, again from Talbot's New Yorker article:

Judge Walker kept asking Charles Cooper, the lawyer defending Proposition 8, how exactly it did so. "I'm asking you to tell me," he said at last, "how it would harm opposite-sex marriages."
"All right," Cooper said.
"All right," Walker said. "Let's play on the same playing field for once."
There was a pause--it seemed like a long one to people in the courtroom, though it was probably only a few seconds. And Cooper said, "Your Honor, my answer is: I don't know. I don't know."

I don't know, either, but I can't wait to see the Youtube clip in which that question is finally answered!


UPDATE: I am told that the Youtube broadcasts have been blocked after all. Meanwhile, here are some pictures of the principals (photos by Diana Walker, courtesy of the American Equal Rights Foundation):

Ted Olson and Chad Griffin

2010-01-11-AFERDWalkerPic2Med1.jpg

David Boies

2010-01-11-AFERDWalkerPic3Lg.jpg