1 last Prop 8 upd8

I promise I won’t keep going on about this forever. But if you want a one-stop shop for the highlights of Judge Walker’s decision on Perry v. Schwarzenegger, this one’s pretty good; for bonus points, you can read about what’s up with those “strict scrutiny” and “rational basis” things.

I am so very much not a lawyer, so if there are flaws in either of those posts, I cannot point them out to you. (Actually, can anybody explain to me what’s up with the way the material from this trial will be used going forward? I’ve gotten the impression that the testimony offered there, and the way Walker approached the decision, is going to be really important to how the appeals process goes — i.e. it’s a really, really good thing for the Prop 8 opponents that Walker was so thorough from the start, because it will make it harder to defend Prop 8 in the future — but I don’t really know how that works. Back to my original point –) Those two posts did a lot to help me understand what the points at stake were, why Walker shot the defense down, and what kind of standard(s) will have to be met in order to deny sanction to same-sex marriage. If you need clarification, those two posts seem a good place to start.

0 Responses to “1 last Prop 8 upd8”

  1. gollumgollum

    I know in criminal trials, you’re not allowed to appeal anything that didn’t appear in the first case–the fact that Judge Walker was so thorough (and that the pro-Prop8ers were so, well, unthorough–they brought 2 witnesses to the stand and had rather contradictory testimony based basically on ‘because we think it’s wrong!’ whereas the anti-Prop8ers were much better organized, with something like 18 witnesses who argued their side from legal, moral, religious and social grounds) means that the points that he ruled on are the only things that can be argued in the future. An appeal isn’t a whole new trial–it’s an attempt to say this previous trial came to the wrong conclusion because of X, Y, and/or Z. So all they have to discuss are the 18 organized witnesses who cogently argued the anti-Prop8 point and the 2 witnesses who said ‘gay marriage is a threat to marriage because marriage is for procreation’ and then ‘same sex marriages neither advance nor threaten procreation’ (as you pointed out earlier).

    TL;DR: Because the pro-Prop8ers didn’t introduce very good evidence and didn’t do a very good job of arguing their case, they’re now stuck with their crappy evidence and crappy arguments. Because the anti-Prop8ers introduced a lot of good evidence and did a very good job arguing their case, they have a lot more room to work in the appeal.

    Also, it’s worth noting that neither Schwarzenegger (the named defendant) nor CA’s AG Jerry Brown bothered to defend Prop8, and Schwarzenegger actually put out a press release today congratulating the anti-Prop8ers on their victory.

    • Marie Brennan

      Okay, that makes sense, though this is obviously not a criminal case. I knew an appeal wasn’t a new trial, but I didn’t know it was limited to material from the original trial. Are there circumstances under which new witnesses could be brought?

      And yes, I did notice that Schwarzenegger seemed to be on the side of anti-Prop 8. I assumed he was the named defendant simply because he’s governor, and that I shouldn’t draw any conclusions about his opinions from that. I knew Jerry Brown had said a while ago that he didn’t think Prop 8 was defensible, or something to that effect.

      • Anonymous

        Oversimplified, but this will illustrate why it’s so important that Judge Walker gave such detailed findings of fact and specific rationales for how he weighed the evidence:
        (1) Conclusions of law are reviewed de novo, with no deference whatsoever to the trial judge. This is the ordinary standard of review on appeals, and it’s why the appellate process involves making law. If a majority the judges on the Court of Appeals believe differently than did the trial judge, that majority opinion overrules the trial judge.
        (2) Findings of fact are reviewed for clear error, with substantial deference to the finder of fact (jury or, as in Perry, bench/judge sitting as the finder of fact). That basically means that unless the factual finding was so obviously wrong on the record in front of the trier of fact that a rational jury/finder of fact should not have believed it. In Perry, Judge Walker himself noted that the proponents of Proposition 8 didn’t put in much evidence — he specifically noted their failure to call witnesses, the poor relationship of their “expert” opinions to the purposes for which they were called, and so on.
        (3) Evidentiary rulings are reviewed for abuse of discretion, a yet higher standard in many ways and a lower standard in others. If the judge made an error of law (see item 1) in his evidentiary rulings — such as misstating the Daubert/Joiner standard in excluding expert testimony under Fed. R. Evid. 702 — that is by definition an abuse of discretion. If, however, it was a judgment call — such as, in this case, Judge Walker’s evisceration of the credibility and demeanor of the proponents’ two “experts” — that is almost impossible to overturn.

        So that’s why the detailed findings of fact, with cross-references to the record, are so important: They make it that much harder for an appellate court to overturn.

        Of course, there’s a separate inquiry, too: The initial legal standard that Judge Walker had to apply. A constitutional challenge isn’t like a simple slip-and-fall case, in which the plaintiff needs to demonstrate only that it is more probable than not that she was injured by the defendant’s negligence. Instead, there are multiple kinds of review… but all those do is, in the end, establish the standard of proof necessary for the finder of fact to find the facts. Judge Walker’s opinion itself does an excellent job of tying that together, and at the most rigorous (deferential to the statute being challenged) standard.

        • Marie Brennan

          Aha — it was the “findings of fact” thing I saw referenced elsewhere, only I couldn’t remember where and it hadn’t been very clear to begin with. So, that’s where Walker’s diligence in showing his math, so to speak — not to mention the incompetence of the defense’s witnesses — is such a boon to the plaintiffs: that part is going to be damn hard to overturn (or whatever the proper verb should be), and so long as the findings of fact stand, it’s harder to articulate a basis for a different conclusion of law.

          Further query: you said “it’s why the appellate process involves making law.” I’m not sure what you mean by that, but I suspect it has to do with the question I was pondering on the way to the grocery store, which is how a ruling on a specific instance (this one marriage proposition in California) gets applied to the more general matter (same-sex marriage rights in the U.S.). How exactly does that work?

          • cheshyre

            Marc Ambinder listed “the relevant facts Walker finds” – and it’s an impressive list:

            One of my favorite quotes was posted by Andrew Sullivan (written by one of his readers): “His clerks made that trial record their bitch, and Judge Walker took that dog for a walk.”

          • Marie Brennan

            Heh. That’s a pretty good line.

          • ken_schneyer

            Cepedit has done an admirable job, above, of differentiating between issues of fact and issues of law, and how they function in an appeals process. What I tell my students is that an appeals court’s job is to review whether the trial judge made any legal errors based on the evidence presented to him. It does not try to second-guess the trial court as to whether the evidence was strong enough to support his conclusions of facts, unless that evidence was so weak that it was a legal error to employ it in that way.

            To answer your question: In our system, no court (not even the U.S. Supreme Court) is technically deciding more than the specific dispute between the specific parties in that case. Judicial decisions are typically “limited to their facts,” which means that cases involving different facts could (should!) yield different results.

            But because ours is a common-law system, judicial decisions on matters of law have precedential weight. Thus, if the Supreme Court rules that Prop 8 is a violation of the 14th Amendment, that becomes a precedent: enactments that are identical to Prop 8 in all respects would also be unconstitutional. But of course there will never be an enactment that is 100% identical to Prop 8, so the question then becomes, “Is this enactment similar enough to Prop 8, in the details that matter, so that the precedent that was set with Prop 8 should be applied to this enactment as well?”

            I haven’t yet read Walker’s opinion, but I suspect that it depends on whether evidence was adduced, either before the legislature or at trial, showing facts that would support any logical relationship between Prop 8 and public safety, health, welfare, etc. If not, then a different state statute that did have such facts or evidence would be an entirely different kettle of fish, and a precedent based on the legality of Prop 8 might not apply at all.

          • zunger

            The opinion stated rather harshly that the defense didn’t show any logical relationship at all; about half of the findings of fact were basically about that. That’s how he justified the rational-basis review.

            I’m very curious to see what the appeal is going to look like, after reading this decision. Judge Walker was very canny in this decision — almost all of the work went in to having heavily documented findings of fact, and if those aren’t overturned it’s going to be damned hard to justify any other finding of law.

            I can imagine a few paths open: they could try to challenge the basis for some of the findings of fact. This would be tricky in no small part because there are so damned many of them, and they’d have to knock out quite a few before they got anywhere… and absent any positive findings for the defense in the ruling, simply eliminating negative findings may not be enough.

            The other direction I could see would be going after Walker’s assertion that people’s moral objections to something aren’t in themselves a sufficient rational basis for the measure. The argument is vile — it makes a joke out of equal protection, and seems to fly directly in the face of Loving, Lawrence, and for that matter Brown vs Board — but there doesn’t seem to be much else in this decision that one could meaningfully appeal. The findings of fact didn’t seem to leave much basis for any other finding of law.

            I’m curious what other people see in this — do you see any alternative subjects for the appeal?

          • malsperanza

            I agree: they’ll go after the idea that moral objections don’t count, but I think they’ll run aground on the subsequent claim that a personal morality trumps a civil right.

            But Walker didn’t make the vile argument you describe, and only by taking the statement out of context can it be seen as denying equal protection. He said, “The voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view.”

            I think it’s pretty clear that he is referring to a limitation on the power of one group’s personal morality, not the morality of the law (as in Ronald Dworkin’s use of the term). Hence, I see his statement as upholding Loving pretty decisively: majority morality in Virginia in 1967 found interracial marriage repugnant, but that did not suffice to deny individuals full rights of citizenship.

          • zunger

            I didn’t mean “vile” to describe Walker’s argument! I meant it to describe the counterargument which I fear will be made — that voters’ “moral objections” in and of themselves are a rational basis for a law.

          • malsperanza

            Ah, that makes more sense! Well, good luck to them–that argument hasn’t worked for 200 years. It runs straight into church-state separation and (unlike abortion) there’s no injured party here. Plus, it’s getting harder and harder to argue that marriage is an immoral act. But I do look forward to Scalia’s contortions to try to reconcile his personal morality with his jurisprudence. I hope he throws his back out.

            If SCOTUS is smart they’ll decline to touch gay marriage with a barge pole & wait for Congress to deal with the state-by-state patchwork. Naturally I hope they aren’t that smart.

          • zunger

            Oh, but the argument has worked many times; the times that it was struck down, like Loving and Lawrence, stand out by comparison. But those precedents are both very much in play, so SCOTUS is going to have to deal with that.

            From a procedural perspective, my guess is that if the appeals court reverses, there’s a chance that SCOTUS will refuse to hear the case, but if they uphold it’s almost certain to get cert.

            Really, I think that one of the biggest challenges for the defense in this case at the SCOTUS level is going to be explaining how this case is substantively different from Loving. The biggest differences that I can think of are that “Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals,” (FF 51) which eliminates one of the defense arguments in Loving, and that there’s even clearer evidence of an explicitly discriminatory intent in the original passage of the law. Neither of those differences are going to be good for the defense, and I think that even the most conservative justices aren’t likely to try to reverse that decision.

          • Anonymous

            True, it worked for years; but not so much in the modern era & I should have said that. Pace Dworkin, no one knows what the hell “moral objections” means; like pornography, it falls into the morass of community standards, which is basically what we’re seeing now, with the East Coast and Iowa going gay first. But I don’t see the SCOTUS being free to reject the case if it gets that far. They’d look like cowards & surely the 4 liberals would go for cert. Not sure it’ll happen fast, though. Am curious to see what the Appeals Court comes up with; Walker didn’t leave much wiggle room.

            The conservative justices might be happy to take the case so that they can try to lob it back to the states in a definitive manner that makes it hard for Congress to enact any federal marriage law. But unless someone can come up with a reason why gay marriage endangers another right or state interest, I can’t see any argument that would work without overturning Loving, which no one except Thomas would consider doing. (

          • zunger

            I can’t see any argument that would work without overturning Loving, which no one except Thomas would consider doing.

          • Marie Brennan

            That’s kind of what I figured — that the legal precedent could be used to shoot down other laws, and so eventually there’s no point in trying to pass them in the first place, because they’ll just be declared unconstitutional. But of course you can try to get around that by tweaking the form of the law you pass, hoping that it’s different enough to clear the hurdles.

            So then (in theory) is that the point at which Congress might consider passing a law prohibiting any kind of marriage discrimination based on gender? (“In theory” because I suspect we’re a long way yet from a national environment in which that would even be feasible to try.)

          • ken_schneyer

            If states keep trying different tweaks on their statutes and they keep getting knocked down, then eventually they’re going to give up because they won’t get past the Court of Appeals level. The Supreme Court takes cases only on a grant of certiorari, which means that you have to get four justices saying that your case is worth hearing. The Supremes don’t like wasting their time, and you’ll eventually see them knocking such cases out routinely.

            But in the case of abortion rights, states twisted and turned for a long time (nearly 20 years) before we finally settled on exactly which restrictions would pass muster under Roe v. Wade, and which ones wouldn’t. In the case of gun rights, I suspect we’re in for another decade at least of figuring out what restrictions are and aren’t constitutional.

            So if we assume that the Supremes affirm Walker — say, in 2012 (just in time to energize the Christian conservatives to try to defeat Obama for re-election, by the way) — then I think we can look forward to a final settling-down of what states can and can’t do on the matter by 2022 or 2032.

            If the Supremes act as I outline here, then Congress won’t bother enacting a statute to protect same-sex marriage, because they won’t have to. But even if they wanted to, there’s some question as to whether Congress has that authority under Article One. That’s a whole ‘nother problem.

          • Anonymous

            There’s a charming internal contradiction here:If states keep trying different tweaks on their statutes and they keep getting knocked down, then eventually they’re going to give up because they won’t get past the Court of Appeals level.That assumes rational thinking and behavior on the part of the various bigots in question (who are not, themselves, the states)… and isn’t that precisely what Judge Walker found was absent from Proposition 8? <vbeg>

            All seriousness aside, the debate is eventually going to turn to whether the gay marriage issue concerns a fundamental right based in status (with the almost inevitable following of the Little Rock Schools path against persistent state-actor deniers) or a fundamental right based in behavior (with the almost inevitable sniping around the edges epitomized by the jurisprudentially unsound Casey approval of restrictions on abortion… which assume that because abortion is a voluntary act, it necessarily results from rational and voluntary prior acts, and is therefore regulable in a way that skin color is not). And somewhere in there, “hate the sin, forgive the sinner” will get twisted around into something that nobody can recognize — if it hasn’t already.

          • zunger

            Given the findings w.r.t. the permanence of sexual orientation, I’m guessing that at least for this case it’s going to be a right based in status.

            One other interesting thought: SCOTUS, especially under Roberts, loves to make the rulings as narrow as humanly possible, and I’ll bet that in this case they would love to do that even more than usual. But assuming that they grant cert, is there any possible narrow upholding that they could get away with starting with this decision? Walker seems to have tailored the findings of fact to make that difficult.

          • zunger

            One thing which may affect this is demographics; people =35, especially on things like marriage rights. By 2022 this may have passed into the realm of “boring settled law” just because fewer people are interested in contesting it.

            Also: if they do affirm, I suspect it won’t be long before someone else gets a full-faith-and-credit case in front of them, too, to require other states to recognize the marriages. Which could mean that the effect of this case would propagate to other states even more quickly than via precedent…

  2. malsperanza

    Not a lawyer, but I’ll add one more element to the What Happens Next scenario.

    The Federal District Court in California has now tossed out a state law as being unconstitutional. (States can make whatever laws they like, unless they don’t match the Constitution–that’s what bounces an appeal to the federal court level.) Walker’s decision will now be appealed to the Federal Appeals Court. (As explained by others, this higher court will distinguish between errors of law and errors of fact and will defer greatly to Walker on the finding of fact. Walker’s skillful opinion ensures that they will probably not find any errors of fact or law.)

    Since the anti-gay marriage folks don’t have a strong appeals case, they will start this entire process again in a different state–one that is within a different federal district, meaning that the fail-and-appeal process will go up the pipeline to a different federal appeals court. They will try to get an anti-gay marriage law upheld in a more conservative state with more conservative federal judges.

    The usual way that a case reaches the Supreme Court is when two different federal appeals courts come to different conclusions on the same or a substantially similar law. The SCOTUS is the final arbiter. The anti-gay marriage folks are hoping to get to the SCOTUS because it is currently controlled by arch-conservatives (including the fanatical Catholic Scalia). However, this process is slow.

    Meanwhile, if Obama gets reelected in 2.5 years, it is likely that one of the old conservative SCOTUS justices will retire, and he will appoint the new swing vote on the Court. So the anti-gay marriage folks will try to move fast, and the pro-gay marriage folks will hope things move slowly (and that Obama doesn’t blow his reelection bid).

    Meanwhile, the whole appeals process in each instance builds a documentary record of judicial opinion, citation of relevant case law and precedent, and relevant fact patterns (evidence, testimony, and their interpretation), all of which is the primary material that the SCOTUS works with. It also influences Congress and the state legislatures when they write new laws. So we are fortunate that Walker is a skilled author of opinions and that we were well-served by the two extremely talented lawyers who argued for the plaintiffs.

    Also, of course, we’re helped by the fact that laws preventing people from getting married are ipso facto unconstitutional. Not that the SCOTUS has always let that get in the way of its decisions. (Cf. Bush v. Gore, 2000.)

    • Marie Brennan

      “Start this entire process again in a different state” — I presume you mean with a different state law, too? Or can you go to an Arizona federal court to argue about a California law?

      And what happens if five SCOTUS justices decide to let their personal feelings get in the way of actual legal reasoning, and declare that it’s okay to let moral objections be the sole grounds for discrimination? (cf. above, pointing out how this makes a joke out of equal protection.) Obviously no appeal is possible above that level; can the decision be challenged later by bringing a new case somewhere that ultimately ends up before the Supreme Court again, giving new justices a chance to overturn the previous decision? Or does it have to be handled by passage of a federal law?

      • ken_schneyer

        To answer both those questions:

        First: Once the case is over, it’s over. The doctrine of res judicata would prevent the matter from being raised in a different court. You’d need to start with a new state statute.

        Second: The way you try to get around a precedent is to try to find a factual situation sufficiently different to allow for it to be treated as an exception. This is what happened with the abortion cases in the 80s — Roe v. Wade was upheld, but exceptions were found to it that (some would argue) substantially ate away at the right. Similarly, if the Court reverses Walker’s decision, then a later Court might rule, with regard to an Arizona statute, that the Arizona statute is different from Prop 8 in the following 16 ways, and that therefore the Arizona statute is unconstitutional even though Prop 8 wasn’t.

        Also you do get later courts simply overruling precedent when they feel strongly enough about it — as where Brown v. Board overruled Plessy v. Ferguson, or where (more applicably) Lawrence v. Texas overruled Bowers v. Hardwick. But this is quite rare.

        • malsperanza

          Oops, that was me above.

          So, SCOTUS. Happens all the time. E.g. in Bush v. Gore, which decided the 2000 presidential election, the whole SCOTUS voted on its personal feelings: the liberalss voted for states’ rights (an extremely conservative position) because they wanted Florida to be allowed to conduct a full recount. The conservatives voted against states’ rights (a core principle in 100% of their other decisions and opinions) because they wanted to prevent a full recount, which would have gotten Gore elected.

          Equal protection under the law is only as good as the institutions that enforce the protections; so yeah, big miscarriages of justice are possible. (Witness the fact that it took until 1954 for black Americans to obtain certain citizenship rights, & there’s a long history of prior SCOTUS decisions that upheld segregation.)

          If SCOTUS overturns a law, it does so on either broad grounds (slavery is illegal in all states in all forms) or narrowly, focusing on a particular aspect of the statute that does not chime properly with the Constitution. (E.g., the Florida election decision was written so as not to prevent other states from conducting future recounts.)

          When that happens, Congress can write a new law that tries to work around the SCOTUS decision. That can take years. But I’d like to point out that we’ve had a conservative majority in the SCOTUS for years now, and conservative majorities in the Congress and White House for whole decades at a stretch, and yet abortion remains legal. It’s not so easy to take away people’s civil rights once they’re identified–it’s extremely unpopular.

          The weight of the Constitution is on our side in the long run, because if SCOTUS decides that marriage is only between a man and a woman, it must do so on the grounds that the state has an interest in protecting citizens from an injury or danger. And it will be very difficult to identify an injury that rises to the level at which civil rights are less important. (Separation of church and state will also help prevent quasireligious arguments from carrying much weight. Scalia won’t care about that, & Roberts and Thomas are ideological lunatics, but the other 6 will hold the line.) Whereas case law in the other direction is potent: state laws prohibiting interracial marriage were decisively overturned in the 1960s and provide a clear precedent.

          Most SCOTUS decisions are narrow or medium-narrow. My guess is that if SCOTUS upholds gay marriage it will be on broad civil-rights grounds; that’s why Walker’s decision is being described as “historic”–because the parallels are very visible: a class of citizens is being denied rights. Whereas if SCOTUS upholds a ban on gay marriage it will most likely be on a narrow ground, leaving room for Congress to try again. If the decision is on narrow grounds, SCOTUS can avoid forcing states to overturn laws permitting gay marriage–the court hates to tell the states what to do. It’ll more likely uphold a ban in whatever state the suit is attached to, largely on the grounds of states’ rights. (The argument would be that marriage is a state not a federal law, & gay people’s rights are not sufficiently injured to warrant telling a state what to do. That’s a typical conservative SCOTUS position.)

          Thus, some states would permit gay marriage and others not, or only civil union. Which would eventually lead to states each individually cooking up a means to deal with couples who married legally in another state and then move and want marriage benefits in the new state. (This is how abortion works: there are states where abortion is hard to get, hedged round with restrictions such as parental notification or a ban on late-term procedures, which means some women have to travel to another state to get an abortion, not easy to do.)

          But I’m optimistic about the outcome, because all Americans, left and right, are fundamentalists on privacy and personal freedoms: the government should not tell me how to live my life. And only a vocal fraction of the right really gives a damn about Teh Gays. The Calif situation only arose because of their goofy (and incredibly dysfunctional) direct-referendum system. The 6 states (now 7 again & soon to be 8, I hope) that permit gay marriage show no sign of reversing.

          • malsperanza

            Oops again, that was me *below.* Above was a much briefer and more cogent response. 😉

          • zunger

            Which would eventually lead to states each individually cooking up a means to deal with couples who married legally in another state and then move and want marriage benefits in the new state.

            The thing that could be hard with this is that recognition of marriages performed in other states is the standard first textbook example of “full faith and credit.” Is there any precedent for states refusing to honor each other’s marriages? And what about recognition of those marriages by federal law? (e.g. DOMA)

          • malsperanza

            Yep; gives me a warm fuzzy feeling to think of TX and AZ and AK faced with, say, a cutoff of federal funds for refusing to honor another state’s marriage certificate. I don’t see them bothering, frankly, as long as they can blame someone else (Obama, East Coast liberals), as they did with the MLK birthday brouhaha. Everyone will get used to it and find they don’t give a rat’s ass who marries whom.

            This is why the states need to keep passing gay marriage laws. I think NY is likely to do one soon, esp. since they only pass laws these days that have no cost attached.

            In a way, I’m surprised the right put so much effort into this fight. They are making the same mistake with immigration (though there’s more traction there). In the long run, these are not winning issues for conservatives; in the short run it might fire up the base this fall.

      • Anonymous

        A different law. Most likely, lawyers for the organizations opposing gay marriage have been expecting the law to be tossed out, and are even now in discussions with conservative legislators in a likely state to get a law proposed and maybe passed.

        I’ll answer in 2 parts.

        California is unusual in that it has a wacky referendum system–direct voting by the public on whatever issue can gather enough signatures for a ballot. This bypasses the state legislature. Most states don’t have that tool.

        So, let’s imagine that in a state like, say, South Carolina, with a huge conservative majority, the legislature writes and passes a state law declaring that in South Carolina marriage is between a man and a woman only, and the state will not recognize any other marriage. Let’s imagine that they study Judge Walker’s opinion with care and write a law they think will withstand a legal challenge. (Good luck to them on that.) Then the pro-gay marriage folks find a couple willing to sue, and the two star attorneys, Boies and Olsen begin reviewing the legislation to look for holes. The cause for action is the same: the gay couple will develop a lawsuit that focuses on the obligation of the state to prove that their marriage causes injury to the citizenry or the state’s interests, such that it overcomes their constitutional right to exercise all rights of adult citizens. (Boies and Olsen were excellent on this point, and Walker too.) Then it goes from there.

        Alternatively, my hope is that the next state to pass a gay marriage law will be NY (my home). Because then the anti-marriage folks will have to try to overturn the law without the option of a populist referendum (they have failed in Massachusetts and Connecticut, so far), and the federal district court in NY is fantastically good and sound and extremely influential.

        Alternatively, the Federal Appeals Court might overturn Walker, in which case Boies and Olsen will appeal to the SCOTUS directly. Or ‘tother way round: Walker will be upheld and the Forces of Evil will find some grounds for appeal in the language.

        Either way, sooner or later, the matter will get to the SCOTUS, because everyone on both sides recognizes that this is a fundamental Constitutional issue. In fact, Boies and Olsen are champing at the bit to argue a juicy SCOTUS case.

        • Anonymous

          Anonymous is right to point to the distinction between “California’s wacky referendum process” (which is wacky only in its implementation and low barriers… not in concept) and a legislative act. However, I think he/she underestimates the additional barriers to a legal challenge that would be raised by a legislative act.

          In one of the really screwy internal contradictions in American jurisprudence, carefully reading Supreme Court opinions on “how much do we defer to a finding of fact that is before us?” leads to the following rough hierarchy of “factual findings”:
          jury verdict almost sacrosanct; won’t overturn unless “clearly erroneous”
          bench verdict highly deferential; won’t overturn unless “clearly erroneous”, but in practice this is slightly less difficult than for a jury verdict
          legislative finding of fact highly deferential; won’t overturn unless there is “clear evidence of improper purpose that cannot be disentangled from the finding of fact itself” or “failure to create any evidentiary record in support of the findings” — this is usually referred to as the “substantial evidence” test, but technically it’s not quite the same thing
          grant of summary judgment no deference at all; the record is reviewed de novo, since on summary judgment (by definition) there are no credibility determinations
          public vote resulting in finding of fact no deference at all… and not enough cases out there to state what the formal standard of review is

          Perry falls into that bottom category; the “finding of fact” by the voting public got carried no weight, which is why the proponents of Proposition 8 had to put on a specific evidentiary case (and failed, but that’s beside the point). In the case of a hypothetical South Carolina legislature, though, if the text of the bill includes specific language making findings of fact in support of the law, a court hearing a challenge to that law will defer (at least somewhat) to the legislature’s findings, so long as there’s enough evidence in the legislative record to satisfy the prima facie case in front of a particularly ignorant sixth-grader.

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