Dr. Jillian T. Weiss

Which Supreme Court Justices Will Uphold Judge Walker's Ruling?

Filed By Dr. Jillian T. Weiss | August 17, 2010 10:30 AM | comments

Filed in: Marriage Equality, Politics
Tags: Judge Walker, Perry, Perry v. Schwarzenegger, Prop 8, Prop. 8, Supreme Court, Vaughn Walker

As I explained in my previous post, Judge Walker held that Prop 8 failed the easiest of constitutional tests, even though it perhaps deserved a much more difficult test.jello.jpg

In other words, he could have used a sledgehammer to test the Prop 8 brick, but he threw some jello at it and it collapsed. Which it deserved to do, because Prop 8 has no rational basis except for "we hate teh gayz," and that is not a "legitimate government interest."

Justices Scalia and Thomas, however, would definitely love to strike down Judge Walker's ruling with lighting and thunder. Not because they hate gays, but because they don't believe in using the Constitution's Due Process clause to invalidate laws unless it involves gun restrictions. They wouldn't use the jello test like Judge Walker does.

But there are nine justices on the Supreme Court. Five are needed for a majority. Do we have five?

Now, scientific studies show that there are 101 ways to eat jello. (That hilarious video after the jump.)

Our job is to figure out how each of the Supremes like their jello, and what that will mean for Judge Walker's opinion.

What I'm Not Discussing

There's a lot in Judge Walker's opinion about marriage being a fundamental right, and same-sex marriage being a part of that, as well as Prop 8 being constitutionally prohibited sex discrimination because it regulates the sex of one's marriage partner.

("Hey! Where's that jello video?"

I'll show you the video later. Now, pay attention, class!)

There's a lot of room for disagreement on these questions. But they're irrelevant to our discussion. Why? Because the only importance of those questions, constitutionally, is how hard you should make the test of Prop 8.

Judge Walker subverted these arguments by applying the easiest test -- what I'm calling the jello test. He didn't use a sledgehammer, which would have prompted some Justices to shout "ouch!" and complain that the test was too hard. Then they would have started squabbling about whether gay marriage really is a "fundamental" right, or whether it's really sex discrimination in the classic sense of the term. Judge Walker sidestepped those arguments.

So I won't even go there in this analysis.

I'm also not going to argue about whether the Supreme Court will uphold the use of the Equal Protection Clause, rather than the Due Process clause, or both. The test is the same regardless of the clause chosen. There are differences there, but not enough to change the votes. And this is a blog, not a law review article.

Who Wants Jello?

Where the argument is going to be fierce is where Judge Walker held that Prop 8 failed the jello test. If you want a refresher on what the jello test is, see my previous post. And there's something about asparagus there, too. I suppose I was feeling hungry.

But the point is that the "rational basis" test that Judge Walker used is generally used to uphold legislation, not to declare it unconstitutional. In other words, if there is any conceivable rational basis for the law, it is constitutional. The difference between the Justices will be how much they stress that word conceivable.

This means the law is presumptively constitutional. It is rare that statutes reviewed under the "rational basis" standard of review are found unconstitutional. All that is needed is some reason, any reason. For some Justices, they don't even care if the reason is plain wrong, and there's a raft of statistics to show it. Those Justices say they won't substitute their own judgment for that of the lawmaker.

Justices Scalia and Thomas definitely won't like Judge Walker's opinion.

By the way, we have been here before.

Don't Play It Again, Sam

In 2005, a federal district court in Nebraska held that the constitutional marriage ban there was unconstitutional, in the case of Citizens for Equal Protection v. Bruning. The appeals court reversed this decision, saying that there was a rational basis for the marriage ban.

The State argues that the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in "steering procreation into marriage."

By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws "encourage procreation to take place within the socially recognized unit that is best situated for raising children." The State and its supporting amici cite a host of judicial decisions and secondary authorities recognizing and upholding this rationale. The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children, which modern-day homosexual parents understandably decry. But it is also based on a "responsible procreation" theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot.

See Hernandez v. Robles, No. 86, 2006 NY Slip Op 5239 at 5-6 (N.Y. Ct. App. Jul. 6, 2006); Morrison v. Sadler, 821 N.E.2d 15, 24-26 (Ind. Ct. App. 2005).

Whatever our personal views regarding this political and sociological debate, we cannot conclude that the State's justification "lacks a rational relationship to legitimate state interests." Romer, 517 U.S. at 632.

In other words, the Court didn't need actual evidence of whether marriage bans help children. It's enough that some other court elsewhere said so, and it doesn't matter whether they had any evidence either.

However, this Bruning case is quite different from Perry v. Schwarzenegger in one important regard. There was no trial in the Bruning case. There was only a list of "stipulated evidence" between the complainants and the defendants. That means that the lawyers wrote up what they considered to be the relevant facts agreed-upon by both parties, and submitted that to the judge. Then they said "here, decide whether the marriage ban is constitutional." So the judge decided it was unconstitutional, and the appeals court felt free to play games with the reasons for the law, coming up with some half-assed reasoning about children's health.

Since there was no testimony, and no fact-finding by the trial judge, there was no need to give the usual deference to the trial judge. The trial judge's ruling in the Bruning case essentially stood on sand.

Judge Walker's opinion, by contrast, stands on the bedrock of a long legal record of witness testimony. His findings of fact can't be ignored, theoretically, unless they are "clearly erroneous," meaning obviously wrong. I don't think that the Justices will want to do the Bruning trick of citing to some crazy court opinions in New York and Indiana that are themselves based on nothing.

But the Supreme Court can do anything it wants. Who's going to stop them?

The question isn't whether they can; the question is whether they will. For that, we must count votes.

Differences in use of the "Rational Basis" Test

There's two ways to do the "rational basis" test.

1: The Check n' Go Method. There are Justices who think the "rational basis" test means that a law is presumed to be constitutional, as long as the Justice can think up some more-or-less plausible basis. You just need to check under the hood, and see that there's a reason there. It doesn't need to be a great reason, or even one that works. It might not be connected up to the car. There doesn't need to be any real evidence, or documents or testimony backing that up. It doesn't need to be "rational" in the sense that a scientist would use the term. Just check to see there's a reason, close the hood, and go.

2: The Road Test Method. Some Justices aren't content with any broken-down reason under the hood. They want to take it out and drive it around for a while. In other words, some Justices want to see actual evidence of the law making sense and that the law was actually based on that evidence. Not to substitute their own judgment for that of the legislature, but to make sure that the reason really is backed up by something other than fantasy. They don't demand a BMW. They'll be happy with the old Chevy. But it can't be up on blocks in the backyard missing a motor.

The Supreme Court has used the Road Test Method a couple times now in cases involving gay rights. In 1992 there was a Supreme Court case that struck down an anti-gay law using the "rational basis" test. It was a law in Colorado that said that towns and cities couldn't pass ordinances protecting gay rights. And the Court said that the law was unconstitutional even though the legislature had a reason.

What were the reasons given by Colorado? It said it didn't want gay people getting special rights. It also wanted landlords and employers to be able to decide if they wanted to house and employ gay people.

The Supreme Court said no go. Why?

Because, despite all the fancy reasons, they weren't actually hooked up to the car. Those reasons didn't actually relate to the law. The Supreme Court said the only real reason for the law was anti-gay sentiments. And that is not a valid reason for a law, according to the Supreme Court. And that's one of the major cases Judge Walker is relying on.

Same thing in the 2003 case where the Supreme Court struck down the sodomy laws. The State of Texas said they had a good reason -- the traditional Judeo-Christian ethics that had banned sodomy for centuries. The Supreme Court also said that reason was no good, because the sodomy laws referred to both heterosexual and homosexual sodomy, had rarely been used lately and it was only lately that laws were put in place to specifically ban gay sex. So their reasoning was also not connected to the ban.

Which Justices are likely to agree with Judge Walker that Prop 8 has no rational basis and is therefore unconstitutional? And which ones will go with the cockamamie reasons about harm to children, and tradition and the other equally silly reasons?

Let's count.

Justices Breyer and Ginsburg

It's clear that these two favor using Due Process to rule laws unconstitutional, when appropriate, under the rational basis test -- that jello test.

My reading of the precedents in Romer v. Colorado and Lawrence v. Texas, in which both participated, suggests that these three are fine with the idea of using the jello test to strike down laws if they have no rational basis. And both cases specifically involved state restrictions on gay rights and gay sexual relationships. They would need proof of some reasoning other than "traditional morality."

Does that mean that they will automatically uphold Judge Walker's opinion? I don't think the answer can be a simply unqualified yes.

In Lawrence v. Texas, for example, the Court's opinion (by Justice Kennedy, and joined by Justices Breyer and Ginsburg) went out of its way to note that it did not apply to same-sex marriage. Of course, all that means is that the case of same-sex marriage was not before the Court in that case, and that there was no evidence in the legal record of that case to allow any ruling on that subject.

In a proper case, they could rule gay marriage restrictions to be unconstitutional. By "proper case," I mean one with a well-developed factual record of testimony and documentary evidence that demonstrated an absence of reasons for the law. That's harder than it sounds. Proving a negative -- that the law has no rational basis -- can be very tricky. For example, if they were deciding the Bruning case from 2005 that I mentioned above, they might agree with the lower court that a gay marriage ban is constitutional. There was no trial and no development of the evidence, just a statement of agreed-upon facts by the lawyers. They might feel that the presumption of constitutionality applied. But they won't be deciding the Bruning case, because the time for appeal on that one has expired.

Instead, they would be deciding a very different case with Perry v. Schwarzenegger. There is a very clear record of evidence for and against Prop 8 in this case. Judge Walker gave a very clear and detailed explanation and analysis of that record. He showed that the reasons given in favor of Prop 8 did not accord with the evidence.

I believe that Justices Breyer and Ginsburg would agree that the record shows that Prop 8 has no rational basis. They would be inclined to allow Judge Walker to evaluate the evidence from both sides and to decide for himself whether the reasons given for Prop 8 were proven.

I would put these two votes on Judge Walker's side of the ledger.

Scalia and Thomas

Justices Scalia and Thomas are clearly on the other side of the ledger. They are the arch-enemies of "substantive" due process on the Court. They seem to believe that laws judged under the jello test must always be given the benefit of the doubt, and never found unconstitutional. I do not believe they would even allow Judge Walker, or any judge, to look past the evidence presented by the proponents of the law. You got an affidavit from a doctor saying this activity makes hair grow on the palms of young people? Then the law is constitutional. The legislature has a reason. You say there are 5000 affidavits from other doctors saying that's wrong? Sorry, the Court can't make that determination, because we can't substitute our judgment for that of the legislature.

They dissented in the 2003 case of Lawrence v. Texas that overturned the sodomy laws. The state of Texas said gay sex is immoral, and no further proof needed than the good ol' Bible. Oh, excuse me, I mean "Judeo-Christian ethics." We must bow to the niceties of separation of Church and State. But not too far. In Lawrence, Justices Scalia and Thomas didn't need any proof of any harm. I don't think they would require the Prop 8 supporters to give any reason other than "traditional morality." There is no way they would uphold Judge Walker's opinion. Nuff said.

Justice Alito

While Justices Alito is quite conservative, he is not necessarily an enemy of substantive due process, at least when it yields results he likes.

In fact, Justice Alito just finished going hog-wild at the smorgasbord of substantive due process himself.

He recently ruled in McDonald v. City of Chicago that substantive due process allowed him to hold that the Second Amendment -- the right to keep and bear arms -- is a "fundamental" right under the Due Process clause of the 14th Amendment. Justice Alito is in no position to start pulling a Scalia. He's up to his elbows in substantive due process.

But you have to wonder at Justice Alito's agreement, one week before McDonald, with Justice Scalia's opinion in Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection. There, Justice Alito joined with Chief Justice Roberts and Justice Thomas in a portion of the opinion written by Justice Scalia, which was basically a rant against ever, ever, ever using the "substantive due process" concept. In addition, he cited the decision in Lawrence v. Texas, which struck down the sodomy laws, with some contempt.

Moreover, and more importantly, Justice KENNEDY places no constraints whatever upon this Court. Not only does his concurrence only think about applying Substantive Due Process; but because Substantive Due Process is such a wonderfully malleable concept, see, e.g., Lawrence v. Texas, 539 U.S. 558, 562, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (referring to "liberty of the person both in its spatial and in its more transcendent dimensions"), even a firm commitment to apply it would be a firm commitment to nothing in particular. Justice KENNEDY's desire to substitute Substantive Due Process...suggests, and the rest of what he writes confirms, that...where the power of this Court is concerned, one must never say never. The great attraction of Substantive Due Process as a substitute for more specific constitutional guarantees is that it never means never -- because it never means anything precise.

But despite Justice Alito's pious vow of sobriety in the Stop The Beach opinion, a week later he was found over at the McDonald decision rolling in the gutter with the substantive due process bottle clutched firmly to his breast, singing at the top of his lungs about the Second Amendment right to keep and bear arms.

Justice Alito's embrace of the substantive due process concept doesn't mean that he will agree that Prop 8 has no rational basis.

In fact, Justice Alito, as an appeals court judge in the 1999 case of Imprisoned Citizens Union v. Ridge, cited one of the major cases relied upon by Judge Walker, the Supreme Court case of Romer v. Evans. In Romer, the Supreme Court found that an anti-gay law failed rational basis review. Justice Alito cited Romer, apparently with favor. But he said the law about which the Imprisoned Citizens were complaining had a rational basis. He found it quite constitutional.

And here's what he said in the 2007 case of Parents Involved in Community Schools v. Seattle School Dist. No. 1, in saying that rational basis review was too easy a test for a racially-based school desegregation plan. He quoted a classic "rational basis" decision, and noted that the courts must be "deferential" to legislative judgments when using that test. In other words, everything's constitutional under the "rational basis" test.

"It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it". Furthermore, it would leave our equal protection jurisprudence at the mercy of elected government officials evaluating the evanescent views of a handful of social scientists. To adopt the dissent's deferential approach would be to abdicate our constitutional responsibilities.

Oh my, God forbid that we use science to figure out the world. Whatever.

And then there's the 2004 Chen v. Ashcroft decision, which he decided as a Circuit Court judge. He said there that a person petitioning for asylum under the immigration law, whose girlfriend was subjected to the horrible trauma of a forced abortion in China, was not entitled to asylum in the United States. He distinguished a case in which a married person in the same situation was granted asylum protection. While this did not involve a constitutional claim, it shows his take on "rational basis" review, and, in particular, with regard to rules that restrict benefits to married persons. Indeed, he cited the anti-gay Lofton decision, upholding Florida's anti-gay adoption rules, for support.

Chen argues that, while he and his fiancee were never married, they would have married had it not been for China's inflated minimum marriage age requirement, which was instituted as part of the country's oppressive population control program. Chen contends China's refusal to permit him to marry constituted persecution and that therefore the BIA's decision to limit C-Y-Z- to married persons is irrational and arbitrary and must be rejected.

Of course, this use of marital status as a proxy is undoubtedly both over- and under-inclusive to some extent, but neither over-nor under-inclusiveness is alone sufficient to render the use of a metric like marital status irrational. See Heller v. Doe, 509 U.S. 312, 321, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (citation omitted) ("A classification does not fail rational-basis review because it 'is not made with mathematical nicety or because in practice it results in some inequality.' "); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Lofton v. Sec'y of the Dep't of Children & Family Servs., 358 F.3d 804, 822-23 (11th Cir.2004) ("The Supreme Court repeatedly has instructed that neither the fact that a classification may be overinclusive or underinclusive nor the fact that a generalization underlying a classification is subject to exceptions renders the classification irrational.").FN6

FN6. Indeed, the marriage relation is used in so many areas of the law (income tax, welfare benefits, property, inheritance, testimonial privilege, etc.) that it would seem absurd to characterize reliance on marital status in C-Y-Z- as arbitrary and capricious. Cf. Montgomery v. Carr, 101 F.3d 1117 (6th Cir.1996) (deeming rational the enforcement of a school anti-nepotism policy against married couples but not cohabitants).

In other words, if you need to get married to access certain benefits, but the law doesn't let you get married, even though it should, too bad for you.

He also upheld a federal statute permitting deportation of a legal permanent resident married to a US citizen on the basis of a state criminal charge of drug possession that had been dismissed. The same statute did not require deportation in the case of a dismissed federal offense. Makes no sense, right? The feds catch you, you get to stay. The state cops catch you, bye bye. Wha?

Here, we can easily see a rational basis for a distinction between aliens whose criminal cases are dismissed under the federal FFOA and those whose charges are handled under similar state schemes. Familiar with the operation of the federal criminal justice system, Congress could have thought that aliens whose federal charges are dismissed under the FFOA are unlikely to present a substantial threat of committing subsequent serious crimes. By contrast, Congress may have been unfamiliar with the operation of state schemes that resemble the FFOA. Congress could have worried that state criminal justice systems, under the pressure created by heavy case loads, might permit dangerous offenders to plead down to simple possession charges and take advantage of those state schemes to escape what is considered a conviction under state law. Particularly in view of Congress's power in immigration matters, it seems plain that rational-basis review is satisfied here. As the Supreme Court recently noted, "[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens." Demore v. Kim, 538 U.S. 510, ----, 123 S.Ct. 1708, 1711, 155 L.Ed.2d 724 (2003) (quoting Mathews v. Diaz, 426 U.S. 67, 79-80, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976)). Accordingly, we reject Acosta's equal protection argument.

In other words, Congress might have been more familiar with federal crimes than with state crimes, even though they're pretty much the same animal. Did Congress give this as a reason, and Judge Alito felt he ought to give Congress the benefit of the doubt? No, actually, Judge Alito just made it up all by himself.

In a 1999 case, he reviewed a law prohibiting incarcerated prisoners listed as sex offenders from having any material that described or depicted anything sexual. I'm not in favor of sex offenders, or anything like that, y'all. But since pretty much everything these days has sexual descriptions or depictions, that pretty much rules out all magazines, books, music and DVDs. They're left with Grimm's Fairy Tales. Oh, but remember that Cinderella and the foot fetish thing? Better take that away too.

The legislature's judgment therefore need not be perfect, just rational. During proceedings before the District Court, Defendants presented evidence that the statute bears a "valid, rational connection," to the rehabilitation of sex offenders. They submitted affidavits from two psychologists-Dr. Nancy Graffin, Ph.D., and Dr. Timothy Foley, Ph.D.-both of whom testified that pornographic material threatened to thwart the effectiveness of the treatment given to A.D.T.C. inmates.

So which way will Justice Alito go on Judge Walker's opinion? My guess, based on his apparent agreement with Justice Scalia's contempt for the Lawrence v. Texas decision, is that he's going to waver a bit, but eventually slide into the Scalia and Thomas camp.

He'll say that substantive due process is a good thing, and agree that a law maybe can fail a rational basis test, as it did in Romer and Lawrence. However, he'll probably say that it's going too far to say that the people of California don't have a rational basis for defining marriage as one man and one woman. He'll sidestep Judge Walker's carefully reasoned analysis, and say that the Prop 8 case is unlike the Romer and Lawrence cases, to which he must at least pay proper respect as valid legal precedents.

He'll probably say something like Romer involved political rights and Lawrence involved criminal law, so those restrictions were worse than Prop 8. He may also note that the anti-gay animus was particularly clear in those other cases. But he'll distinguish Prop 8 on the grounds that it's denying a benefit, not creating a detriment, and there's no real evidence of anti-gay animus in the law itself, since Prop 8 doesn't mention gays. Or some such legalistic muck like that. The truth is that such arguments don't make a lot of sense, since they have nothing to do with the standards previously set forth for substantive due process review. The only question is whether the law has a valid basis. But when you're on the Supreme Court, there's no one to stop you from going hog-wild.

Justice Roberts

I think Justice Roberts is in the same camp. He joined with Justice Alito in the McDonald gun law opinion, with nary a word to indicate that he was against substantive due process. At the same time, he joined in Justice Scalia's opinion in the Stop the Beach Renourishment case, with its apparent contempt for Lawrence v. Texas.

He also seems to be in favor of the idea that "rational basis" review means that you only look at the Prop 8 proponent's evidence. In a 2006 case involving whether union employees had the right to use payroll deductions for union dues and its political action committee, specifically with regard to local government employees, the State said they made a law against that because it might look improper.

Justice Roberts said it didn't matter whether there was any real entanglement between government and the union's political activity. (Emphasis added)

Banning payroll deductions for political speech similarly furthers the government's interest in distinguishing between internal governmental operations and private speech. Idaho's decision to allow payroll deductions for some purposes but not for political activities is plainly reasonable...Both the District Court and the Court of Appeals found it significant that "there is no subsidy by the State of Idaho for the payroll deduction systems of local governments." The Court of Appeals emphasized that there was no evidence that "Idaho has attempted to use its asserted powers to manage the day-to-day operations of local government personnel." 504 F.3d, at 1067. Given the relationship between the State and its political subdivisions, however, it is immaterial...

In a 2004 case, as a lower court judge, he upheld a law requiring the arrest of a 12 year old girl for eating a single french fry in the DC Metro.

Rational basis review applies and we accord the challenged policies a strong presumption of validity. We will uphold them "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." What is more, "those attacking the rationality of the legislative classification have the burden 'to negative every conceivable basis which might support it.'" We therefore need not review all the reasons given by the defendants in support of the challenged distinction between children and adults; it is enough that we find one reason rational. We conclude that the no-citation policy for minors is rationally related to the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.

Of course, you could also notify parents by sending a candygram, or using sky-writing, or pinning a note to their forehead with a thumbtack. Aren't those equally rationally related to the legitimate goal of parental awareness? Putting a 12 year old through the ordeal of arrest and incarceration to let the parents know that their kid ate a french fry in the subway is stupid. It's not rational. But I don't think Justice Roberts gets the whole "rational" thing. I guess he lives in the suburbs, where they have nice jails and anyway the police officers wink at the suburban hijinks of those high-spirited kids. They probably don't lock up the children of Supreme Court Justices for eating a french fry.

In any event, my point is that I don't think Justice Roberts is inclined to look at the evidence that Judge Walker amassed. Who cares about evidence when you can make up justifications in your head? My gosh, without Prop 8, California might slide into the sea. Isn't that a legitimate goal? Not sliding into the sea?


Justice Kennedy

Justice Kennedy is often considered a swing vote, for he sometimes sides with Justices Breyer and Ginsburg, and sometimes with Justices Scalia and Thomas.

It's pretty clear to me that he's going to side with Breyer and Ginsburg on this one, given that he wrote the opinions in both Romer and Lawrence. In both of those opinions, he used the rational basis test to strike down anti-gay laws. Furthermore, he specifically held that, despite the rationalizations given, these laws were motivated by anti-gay animus and moral disapproval that are not legitimate government objectives. In other words, he looked beyond the proffered reasons, determining that the evidence did not support them. That's exactly how Judge Walker ruled.

While marriage equality is a step beyond Romer and Lawrence, I don't believe it's a step too far. The question is essentially the same as that in Romer and Lawrence, which is whether there is a rational basis for the law.

He is not being asked to find a right in the US Constitution for same-sex marriage, to be imposed on states that don't want it. He is being asked to rule on a law that specifically overrules the State Supreme Court's holding that the State Constitution requires marriage equality.

Thus, all the polls and questions out there about where there is "a right to same-sex marriage in the Constitution" are totally irrelevant to Perry v. Schwarznegger.

I believe that Justice Kennedy will rule that Prop 8 has no rational basis, but that he will make it clear that he is not finding any right to same-sex marriage in the Constitution.

I note that there have been many news articles that assume that if Perry v. Schwarzenegger is upheld, that marriage equality will reign across the land.

Not so.

It will reign only in California, and in other states where marriage equality has been approved, but stymied by a Constitutional amendment.

The Count

Okay, so far I have Justices Breyer, Ginsburg and Kennedy as upholding Judge Walker's decision, and Justices Scalia, Thomas, Alito and Roberts as reversing,

That's 3 in favor of Judge Walker's ruling, and 4 against. We have 2 more to go.

Justices Sotomayor and Kagan

So now we come to the real crux of the matter. Which way will Justices Sotomayor and Kagan jump on rational basis review? Are they a rubber stamp for Prop 8 supporters, or are they willing to look into the evidence and formulate their own opinions as judicial officers on whether the law has a rational basis?

As I stated in a blog post last year, "What Would Justice Sotomayor Do With A Transgender Plaintiff?", I believe that it's possible that she feels that sexual orientation is a protected category in and of itself.

In 1995, as a District Court judge, she ruled in Holmes v. Artuz against a correctional facility that had removed a prisoner from his food service job at the prison because he was gay. The correctional facility said that federal law doesn't protect people from discrimination based on sexual orientation. Judge Sotomayor said this:

I note further that plaintiff's allegation that he was removed from a prison job solely because he had declared his sexual orientation may itself state a claim...for violation of his equal protection rights. Defendants argue that "the decision to reassign plaintiff from his job in food service is rationally related to a legitimate state interest in preserving order in the correction facility messhall (sic)." However, defendants proffer no explanation of what this "rational relationship" might be. A person's sexual orientation, standing alone, does not reasonably, rationally or self-evidently implicate mess hall security concerns. It is not sufficient to assert, as defendants do in their motion papers, that the prison's exclusionary policy is designed to prevent "potential disciplinary and security problems which could arise from heterosexual inmates" reaction to and interaction with homosexual and/or transsexual inmates who serve and prepare food" in the mess hall. Defendants as yet have offered no evidence that these alleged disciplinary and security problems are real threats to prison life, or that the exclusionary policy is a rational response to such threats if they do exist.

Here, in the absence of any record before the Court, it is not clear why inmates who are openly homosexual are barred from prison mess hall positions. This factual uncertainty compels denial of both defendants' defense[s]....

This 1995 opinion shows an uncanny legal prescience, anticipating the Supreme Court's opinions in Romer v. Evans and Lawrence v. Texas on which Judge Walker's opinion is primarily based. Circuit Judge Sotomayor could have easily said that the plaintiff loses because sexual orientation isn't protected, and she would have been unfortunately in the legal mainstream at the time, but she went the extra step.

I think that Justice Sotomayor would understand that the Prop 8 proponents need to have more than just any old reason for the law; they must have evidence that their reason actually makes sense and is related to the law itself. I don't believe that she would allow them to just cite a reason, and then have no back up for it, or be unable to refute the evidence to the contrary.

For example, in a 2007 case, she held that a rule prohibiting New York State political appointees or their families from receiving paid court appointments as fiduciaries was constitutional under the "rational basis" test. But she didn't make up her own reasons.
She looked to the evidence, and found that it justified the rule.

Indeed, the Rule embodies precisely the recommendation made to Chief Judge Kaye by the Commission on Fiduciary Appointments, which it developed in response to concrete information about the politically motivated appointments actually occurring and about the resulting public perception that the process was compromised. See Commission Report at 21-26, 39-40; see also Special Inspector General Report at i, v-vi, 72.

...In particular, she objects that the Rule extends not just to party leaders but to their law firms, regardless of the size of the firm and the number of appointments it has received; that it continues to apply for two years after party leaders resign; and that it does not allow for waivers under any circumstances. Even under rational basis review, this challenge may bear on our analysis...

Each of the features to which Kraham objects is necessary to fulfill the objectives of the Rule. First, the Commission Report found that lucrative appointments were going disproportionately not just to party leaders, but to their law firms. See Commission Report at 39. Also, at the very least, appointing others in the law firms of political party leaders creates the public perception of favoritism in the judicial appointment process. See id. at 21-25. Second, the two-year post-resignation prohibition period reasonably prevents a "quick turnaround" from party leader to court appointee. This period, which is consistent with the New York Public Officers Law's limitation on the professional activities of state officers, employees, and party officers for two years after they leave office or state employment, N.Y. Pub. Off. Law § 73(8); see Lippman Aff. ¶ 20, is justified by the state's interest in removing from the appointment process any appearance of impropriety. Third, we agree with defendants and the State of New York as amicus curiae that permitting waivers would vitiate the Rule's very purpose-to reduce judicial discretion in the appointment process-by opening the door to politically motivated waivers and thereby creating the perception that politically motivated appointments are possible. Given that the Rule serves such a critical purpose, and was developed carefully to respond to a comprehensively documented problem, we reject Kraham's argument that the Rule imposes a greater burden than the state's interests justify.

Had this been a Scalia-Thomas-Alito-Roberts opinion, it would have said that there was a reason for the law, that the legislature wanted to avoid the appearance of impropriety, and left it at that. They wouldn't have combed through the evidence to demonstrate the reality of the need for the law.

However, Justice Sotomayor also made it clear in a 1997 case, when she was a District Court Judge, that the "rational basis" test is something less than a "reasonableness" test. In other words, the Court does not have to agree with the reason given, so long as the reason makes sense and is related to the law's goals.

Under the Equal Protection Clause, the City's regulations are constitutional so long as they are supported by some rational basis. As plaintiff's counsel agreed during oral argument on this matter, the rational basis test is less rigorous than the "reasonableness" test articulated by the Second Circuit in Concorde. Thus, if the regulations are reasonable such that they pass muster under the preemption analysis, they necessarily satisfy the requirements of Equal Protection.

Based on these cases, my sense is that Justice Sotomayor would be willing to look at the evidence for and against, and to decide whether there is, in fact, a rational basis for Prop 8. It's not a slam dunk with her, but unlike Justices Scalia and Thomas, and, to a lesser extent, Justices Roberts and Alito, her mind is open to looking at both sides, not just the pro-Prop 8 side.

Given the care that Judge Walker put into his opinion, and all of the evidence produced, and his careful analysis. I believe that Justice Sotomayor will have some initial questions that need to be answered well by Olsen and Boies, particularly with regard to the factual findings. However, I do believe that she will slide into the Breyer-Ginsburg-Kennedy camp, and uphold Judge Walker's opinion.

If I am correct in my analysis so far, the count is 4 voting to uphold Judge Walker and 4 voting to reverse.

It's a squeaker.

Justice Kagan

Justice Kagan is as close to a cypher as one could imagine. She's written a number of articles, but little of real substance on legal subjects, and nothing directly bearing on her view of the "rational basis" test.

I don't believe that anything can be said with confidence of her views on the question of "rational basis" review.

But she did answer some questions during her Solicitor General confirmation hearing that give a few clues.

From Judgepedia:

Ms. Kagan discussed the intersection of morality and legislation in answering a question from Senator Sessions, saying, "Many laws are grounded in moral and ethical principles and that those principles can provide a rational basis to support such laws."

In answering a question from Senator Cornyn, Ms. Kagan stated "[t]here is no federal constitutional right to same-sex marriage."

The second answer is more on point, but less illuminating. It could mean that the possibility of a constitutional right to same-sex marriage is foreclosed forever. It could also mean that, at the time she answered the question, the Supreme Court had not yet made any ruling on the issue. This also does not address the point actually made by Judge Walker in his decision, that a law banning gay marriage is irrational, whether or not there is any specific "right to same-sex marriage" in the Constitution. In other words, it's not required by the federal constitution, but neither may it be forbidden. In fact, the right to gay marriage involved in Perry is found in the California Constitution, a point which the Supreme Court is not free to address here.

As to the first answer, it says both more and less than it seems to say. The two clauses are quite independent. It's true: many laws are grounded, properly or improperly, in moral and ethical principles. Clearly, the anti-sodomy laws addressed in Lawrence v. Texas were grounded in moral and ethical principles. And the Supreme Court said that wasn't good enough in Lawrence. She didn't say whether she agreed with the Lawrence decision or not.

And, it is true that those principles have been used as the "rational basis" to support laws. That does not say, however, whether one can, like Justices Scalia-Thomas-Roberts-Alito, dispense with proof as to the fit between the moral principles and the law. It doesn't say whether "moral disapproval" or "religious disapproval" is an appropriate basis for a law. It doesn't say whether Prop 8 is based on moral principles or, conversely, simple anti-gay animus.

She also wrote a memorial article for Justice Marshall, for whom she had served as a law clerk, in the 1993 Texas Law Review. She suggested that she had a disagreement with him about his dissent in the 1998 case of Kadrmas v. Dickinson Public Schools, a case which involved the "rational basis" test. In fact, the Kadrmas case is particularly important because it was mentioned in one of the cases on which Judge Walker's opinion depends heavily, Romer v. Evans.

In the Kadrmas case, the Supreme Court found that a law permitting a transportation charge to students did not discriminate against poor students. Justice Marshall strongly dissented from the decision, feeling that it discriminated in access to education on the basis of economic status. Apparently, Law Clerk Kagan disagreed with Justice Marshall, earning the appellation "knucklehead" for her disagreement.

In the Romer case, heavily relied upon by Judge Walker, the Supreme Court cited Kadrmas for the proposition that a law must fall when it "rests on grounds wholly irrelevant to the achievement of the State's objective." The words "wholly irrelevant" are somewhat surprising, suggesting that a law will fail rational basis review only when it's "wholly irrelevant" to the government's stated interests. That's kind of a strong statement, because it implies that the Supreme Court must permit laws even they only have even a teeny, tiny little relevance to the government's purpose.

If Law Clerk Kagan has any influence on Justice Kagan, then it seems that Justice Kagan might very well feel that, like the school district in Kadrmas, if the Prop 8 supporters have a rational basis, even one related only slightly to the law, then the law is constitutional.

However, that begs the question of whether the Prop 8 supporters actually have any rational basis at all. That's going to depend on how comfortable Justice Kagan feels in delving into the evidence. If she turns her head, and says "Nice Justices don't peek into other people's evidence," then she might very well reverse Judge Walker. But if she says, "Let's look at all this evidence and see if same sex marriage really harms kids," then she might very well uphold Judge Walker.

I don't see any indication in Kadrmas that the Supreme Court there took a position on how it is to evaluate proof of a rational basis, which is the real crux of the question in Perry v. Schwarzenegger.

The Romer Court cited Kadrmas for the proposition that the anti-gay law was totally irrelevant to the purposes cited by the government. Would Justice Kagan agree with that idea? Would she extend it to the Perry case?

Again, this is a very difficult one to call. If I had to bet real money, I would bet that she goes with the Breyer-Ginsburg-Kennedy-Sotomayor camp, upholding Judge Walker's opinion.

But really, I don't have much to go on here, except the hope which springs eternal in the human breast.

If she goes the other way, then Judge Walker's opinion would be reversed.

It's a squeaker. Hold your breath, and get your popcorn.

Okay, you've done your homework. You may now watch TV.

101 Ways To Eat Jello

Note: I have omitted most case citations in the court opinions quoted above, and freely snipped, using ellipses (...) where necessary to make sense for a non-lawyer audience.

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Michael Mann | August 17, 2010 11:57 AM

Dr. Weiss I agree that Kagan may very well be the swing vote on this case. It is slightly worrisome that we don't have a very large body of papers that portend her judicial temperment. When I have heard her speak, she seems very level headed and rational. I would tend to believe that because she has a law background in the absence of a judicial history she will err on the side of reading the evidence rather than flipping a coin to come up with her opinions (especially toward the beginning of her judicial career). Great article!!!

I agree that Kagan may very well be the swing vote on thise case. Because she has not developed a judicial temperment, I believe that she will review the evidence prior to reaching a decision (especially early in her career). Great article Dr. Wiess!

Gwen Dallas | August 17, 2010 12:36 PM

I'd point out that it's entirely possible that, if the Supreme Court actually gets to the merits on Perry (still unclear given the standing controversy), that we may have a fractured majority. Much ink has been spilled about the Plaintiffs, Judge Walker et al "aiming for Kennedy" with the Romer-type rational-basis arguments. But I'm not sure that his would end up being the plurality view.

It's entirely possible, given Kagan's statements in the same 1993 article on Thurgood Marshall, to the effect of, it's the Court's job to protect minorities, etc. It seems possible to me that she may be particularly inclined towards expanding "Footnote 4" scrutiny in ways other recent justices would not.

Given the scant evidence, it does not seem implausible that Kagan could find there to be a rational basis, but that the reasons given fell short of an "important governmental interest" (I'm assuming that, if one were to put gays in a footnote four category, you'd probably pick intermediate scrutiny, rather than strict).

Of course, you get a plurality saying on thing, Kennedy (or Kagan) concurring-in-the-judgment, and a four-vote minority, and all hell breaks loose.

I'm reminded of that Chinese proverb, "may you live in interesting times..."

It will reign only in California, and in other states where marriage equality has been approved, but stymied by a Constitutional amendment.

Do you mean like Maine where it was approved by the legislature and repealed by Question 1?

I thought it'd be like Lawrence where it overturned all the state sodomy laws. But then I guess I don't know how the sodomy laws came into law.

It's possible that if the US Supreme Court rules on it that it could overturn existing same-sex bans, but the case has to reach that court first. If the 9th circuit rules that the appelants (in this case the prop8 supporters) do not have standing to appeal, then it may very well only affect California at this point. We shall see

With all respect, I think there's a better way to describe the two approaches to rational basis. Under the first view, the burden of persuasion is on the plaintiff to negate every conceivable basis for the law (aka "rational basis"). Under the second view, the burden of persuasion shifts to the government to establish a legitimate basis for the law that's rationally related to what the law actually does in practical effect (aka "rational basis with bite").

In the average case, the courts will apply the first approach. But in cases involving equal-protection and due-process claims brought by non-suspect classes or groups, the courts are more inclined to apply the second approach (see Cleburne and Moreno).

Moreover, this second view neatly explains what Justice Kennedy did in Romer and Lawrence, and it neatly explains what Judge Walker did in Perry. This burden-shifting approach helped the courts to reach the correct result without having to fatally undermine the rational basis test or to make an express finding that sexual orientation is a suspect class entitled to heightened constitutional scrutiny.

My own armchair quarterbacking of this case has revealed that the crucial vote still belongs to Kennedy, despite the relatively untested waters of Sotomayor and Kagan. It's a much less controversial proposition to decide these cases on rational basis with bite while leaving open the harder question of heightened scrutiny. And Sotomayor and Kagan appear highly amenable to this sort of measured approach.

I like your description, JTW (nice initials, by the way), but I don't think any court has correlated the rational basis test with the burden of proof. As sensible as your approach seems, why didn't Judge Walker make this clearer in his opinion?

It's certainly not what the Court did in Kadrmas, about which Justice Marshall and then Law Clerk Kagan disagreed.

If this is what the Court does with non-suspect classes, but there's no precedent requiring it, then Justices Scalia, Thomas, Alito, Roberts and anyone else is free to ignore it.

So it's not so much a rule as it is an informal rubric. And that's what I was trying to explain in lay language. I agree with you that Lawrence and Romer used rational basis with bite, and I argued as much in my last law review article on the subject, which you can find here. Lots of people have disagreed with me on that.

Well, I think so. Yes, I mean like Maine. The truth is, I'm not entirely sure about this. I think they could write it in a way that it would invalidate any marriage restriction anywhere, but I'm guessing they won't. I'm hoping someone more learned can come along and explain this part better.

When Lawrence turned over the sodomy law in Texas, it said that any similar restriction violated the right to privacy. So although it didn't technically overturn the other laws, the other laws were unenforceable if brought to a court of law.

Here, if they say that Prop 8, like Prop 2 from the Romer case, violates due process and/or equal protection, the question will be why. If they say because this particular law was occasioned by anti-gay animus and that's a no go, then only laws occasioned by anti-gay animus will be unconstitutional. If they say, however, that marriage is a fundamental right and gays can't be excluded from it, then it would affect any law that restricts marriage to one man and one woman. And that would overturn every restrictive marriage law. But I don't expect this to happen.

thats a bummer, so that would mean that each individual law would have to be challenged and the plaintiffs would have to somehow prove anti-gay animus as a basis?

NCLR says:

Judge Walker’s decision is just about California, but much of his legal analysis and many of his factual findings could be applied to other discriminatory marriage laws across the country. If this case reaches the Supreme Court, and if the Court decides to reach the question of whether Prop 8 is constitutional, and if the Justices ultimately decide that Judge Walker was right that Prop 8 is unconstitutional, they could issue that decision either in broad terms that apply to the whole country or in narrow terms that are limited to California.

So, whatever they wanna do.

Wow... thanks, Jillian.

I know this is outside the focus of this post, but this part is not clear to me: In the Bruning case:

There was only a list of "stipulated evidence" between the complainants and the defendants. That means that the lawyers wrote up what they considered to be the relevant facts agreed-upon by both parties, and submitted that to the judge.

So, some of the agreed-upon evidence must have supported hetero-only marriage. How did it compare with the proponents' evidence in Perry? Little of the Bruning evidence was submitted by the Cooper/ADF team? Too little of it was peer-reviewed and supported by credentialed experts?

Take care...

Sasha Buchert | August 17, 2010 4:49 PM

Fantastic Job Jillian. I hope whoever argues this (Please let it be the "Dream Team") if it goes to the Supremes hammers "Loving" and the fundamental rights analysis.

Robert Hagedorn | August 17, 2010 5:40 PM

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True, a lot of the chitter-chatter about "rational basis with bite" (reminds me of a laundry detergent box advertising "new improved formula") has been speculative.

I think it's an entirely realistic (and realist) framework to concede that rational basis inquiry has a lot more to do with an individual justice's view of substantive due process, generally (although, as noted, that may get you nowhere in Alito's case) than in the merits of the case, or the quasi-quasi-suspect class at hand.

WOWSERSSS! This is soooo helpful--thank you!!

This post is so incredibly thorough Jill, and I know how long you worked on it. You can really tell. This should be required reading for anyone interested in the Prop 8 case.

Kudos' Jill,

Great Piece, It's Obvious You Did Your Research, Put A Great Deal Of Thought, Time, Heart And Soul Into Writing This Piece. Know Your Efforts Are Much Appreciated. I Now Have A Greater Understanding Of The Supreme's Mindset..

You Offer An Insightful, And Detailed Analysis Of How The Justice's Will View Prop 8 Ruling, When It Makes Its Way To The High Court. It Was As Good, Strike That, Is The Best Analysis I've Read And Could Understood To Date. Admittedly I Was Lost, Nodded Off A Few Times, While Reading Judge Walker's 138 Page Ruling. Your Piece Was In Lay Terms, Which Helped Me Understand The Complexities Of The Minds Of The Supremes.

What I Don't Get, Neither California Governor Schwarzenegger Or Attorney General Brown Appealed The Ruling. In Fact, Both Requested Judge Walker Not To Stay His Ruling And Supported Same-Gender Marriages To Resume. Yet The Case Made Is Now In The U.S. 9th Circuit Court of Appeals Hands. Basically Because Backers Of Proposition 8 Are Appealing The Ruling.

QUESTION: Should The 9th Circuit Court Decide They Have No Standing, Or Vested Interest To Appeal The Ruling. Do Prop 8 Supporters Still Have The Right To Petition The U.S. Supreme Court To Hear Their Appeal?. Is So, What If The Supreme Court Decides They Have No Standing And Refuses To Hear The Case. Where Does That Leave Judge Walker's Ruling?

I Realize Is Very A Unlikely Judge Walker's Ruling Won't Make It To The High Court. However, I've Heard The Repug-licians Are Hoping The Case Doesn't Make To The High Court, Especially Before Mid-Term Elections. Fearing A Ruling Either Way, Could Cause Them More Harm Than Good.

My Two Cents Worth, Kagen-Breyer-Ginsburg-Kennedy-Sotomayor Uphold The Ruling. Maybe I'm Naive, But, My Wild Card Side Bet, Roberts Surprises Everyone And Votes To Uphold The Ruling As Well..

Thanks Again For Your Due Diligence And Time Put Forth In Helping To Educate Us Once Again.

Take Good Care My Friend


The Romer v. Evans case was in 1996 and the Kadrmas v. Dickinson case was in 1988.

Other than that thanks for the very enlightening article on the subject! Learned a lot :)

Here is some food for thought: If Justice Kennedy sides with Justice Scalia and the other conservatives, then Chief Justice Roberts gets to assign who is going to write the opinion. On the other hand, if Justice Kennedy sides with the more liberal Justices, then Justice Kennedy gets to decide who writes the opinion. Given his ego and his having written 2 other pro-gay important decisions, do you really think he would assign it to anyone but himself? And given his penchant for noticing what is happening in the world, particularly Europe, doesn't it seem likely that he would write a pro-gay opinion?

Justice Roberts presents a more complex case than what was presented here, although what is here is excellent. The article located at:


describes the work that Chief Justice Roberts did on Romer v. Evans. According to this article, he played quite an important role in mock oral arguments, etc.

I would still consider him to be in the conservative camp, but he could be a real surprise given his pro-bono work on Romer.

Very interesting article and very well-reasoned. If I may offer a couple of notes:

The Supreme Court has ruled on the issue of same-sex marriage, in Baker v. Nelson 291 Minn. 310 (Minn. 1971), 409 U.S. 810 (1972). The Court dismissed the case "for want of a substantial federal question". This constitutes a decision "on the merits" and thus serves as binding precedent on cases that present the same issue until such time as the Court overrules it. Boies and Olson spent several pages of their initial brief explaining why subsequent SCOTUS decisions distinguished Perry from Baker and I was very disappointed that Judge Walker didn't address this in his ruling. That he ruled at all allows the presumption that he is distinguishing Perry but a concrete statement of that would have been good. It may be that Kagan was referring to Baker when she gave her answer about a federal constitutional right to same-sex marriage.

The Supreme Court did not specify the level of review that it used in Lawrence v. Texas. Lower courts have since interpreted the text of the majority opinion in an effort to determine what level of scrutiny should be used. In Bruning the Eighth Circuit Court of Appeals ruled that Lawrence did not require "strict scrutiny", the highest level of scrutiny. But in a 2008 Ninth Circuit case, Witt v. Department of the Air Force, the court determined that Lawrence mandated intermediate scrutiny. That is now binding in the Ninth Circuit.