Gayle Madwin (queerbychoice) wrote,
Gayle Madwin
queerbychoice

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Prop 8 Overturned in U.S. District Court!

I just finished reading the full text of Judge Walker's decision, so here are the highlights:
  1. Pro-H8 witness David Blankenhorn's "testimony constitutes inadmissible opinion testimony that should be given essentially no weight."

  2. The only other Pro-H8 witness, Kenneth Miller, "is not sufficiently familiar with gay and lesbian politics specifically to offer opinions on gay and lesbian political power," so his opinions on that subject "are entitled to little weight and only to the extent they are amply supported by reliable evidence."

  3. All nine expert witnesses called by the same-sex couples' legal team are fully qualified as experts in their stated fields, so their testimony is given full weight.

  4. The Due Process Clause and the Equal Protection Clause of the 14th Amendment are each, independently, sufficient to show that Prop 8 is unconstitutional.

  5. "[T]he evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect."

  6. Even if the history of discrimination against gays and lesbians as a group did not merit strict scrutiny, Prop 8 would still merit strict scrutiny because it affects a fundamental right: "Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny."

  7. Even if Prop 8 were not subject to any special scrutiny, it would still be unconstitutional: "Prop 8 cannot withstand rational basis review."
Judge Walker will hold a hearing on Friday to determine whether same-sex couples will be allowed to get married immediately or will have to wait for the U.S. Court of Appeals (and probably the U.S. Supreme Court) to hear the case. Until Friday, no same-sex couples can get married. (I, unfortunately, cannot get married yet no matter what Judge Walker rules in the Friday hearing, because Susan's dissolution of domestic partnership with her ex whom she left in 2006, one year before I met her, is still not finalized.)

But it's pretty clear that Judge Walker took pains to construct this decision in the most favorable way possible for our side. He didn't have to specify that Prop 8 deserves strict scrutiny if he was going to overturn it on rational basis review. He not only did both, but supplied two different reasons it deserves strict scrutiny. Additionally, he devoted a majority of the pages in his ruling to findings of fact (as opposed to findings of law); findings of fact are not normally overturned on appeal unless they are deemed very obviously false, because deference is given to the judge who presided over the courtroom in which the fact were presented and who observed the presentation of facts firsthand. So making extensive findings of fact helps buttress the opinion against being overturned on appeal.

This trial was the first one in the United States in which expert witnesses were called to present facts in a same-sex marriage case, and thus the first one in which a judge has made findings of fact in a same-sex marriage case in the United States. Since our side called nine expert witnesses, all of whom were deemed fully qualified, whereas the pro-H8 side called only two expert witnesses, neither of whom was deemed fully qualified or given much weight at all, it will be difficult for judges in the U.S. Court of Appeals to avoid reaching a conclusion that favors our side. Basically, what the fact-finding process revealed is that university professors throughout the country, particularly the ones whose fields of expertise involve gay people and marriage, are overwhelmingly on our side - so much so that the pro-H8 legal team absolutely could not find any properly qualified expert witnesses to testify on their side at all. Our legal team (led by Ted Olson and David Boies) should ideally have foreseen this and urged Judge Walker to call for expert witnesses. But they didn't. Both sides' legal teams actually opposed Judge Walker's decision to have them present expert witnesses or have Judge Walker make findings of fact at all. This was a huge mistake by our side's legal team, since the fact-finding process ended up helping our side so much. Thankfully, Judge Walker rejected both sides' arguments against the fact-finding process and ordered both sides to present expert witnesses. Our side succeeded in presenting an impressive array of expert witnesses; the other side failed miserably.
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