When future Supreme Court justice Louis Brandeis was defending early in the 20th century the constitutionality of an Oregon law limiting hours of laundry workers, he adopted a then unheard of legal strategy. Brandeis filled his brief to the Supreme Court not with legal abstractions, but with documented facts showing the adverse health and social effects of long hours on laundry workers, virtually all of them women.
This first ever “Brandeis brief,” recently displayed at the court by the curator’s office, revolutionized Supreme Court practice. Today, advocates and judges alike emphasize facts, not legal abstractions, as a matter of course in constitutional litigation.
Federal judge Vaughn Walker understood this mode of constitutional adjudication in his precedent-making decision on Aug. 4 to strike down Proposition 8, the voter-approved initiative in California denying marriage rights to same-sex couples. The guts of his 136-page ruling in Perry v. Schwarzenegger, available here, consists of 50 pages of “findings of fact,” carefully annotated to testimony from the 2-1/2 week trial. Those findings point ineluctably to one conclusion: Prop. 8 has no purpose or effect other than the impermissible goals of denying gay men and lesbians the liberty to define their own life relationships and demoting them to second-class status legally, socially, and economically.
Those findings make it difficult, but not impossible, for a higher court to reverse Walker’s ruling. But they are aimed directly at the Supreme Court justice whose vote is essential to a victory for gay rights advocates in the case: Anthony M. Kennedy.
Twice before, Kennedy has written and cast a pivotal vote in decisions striking down anti-gay enactments. In Lawrence v. Texas (2003), Kennedy concluded for a five-justice majority that a Texas law criminalizing gay sex infringed a protected liberty interest in defining one’s intimate relationships. Eight years earlier, in Romer v. Evans (1995), Kennedy led a 6-3 majority in concluding that a Colorado initiative forbidding passage of anti-gay discrimination laws was an animus-motivated enactment aimed solely at shutting gays and lesbians out of the political process.
In his ruling, Walker began with a series of numbered findings of fact demonstrating the obvious and undisputed benefits of marriage. “Material benefits, legal protections, and social support resulting from marriage,” he wrote, “increase wealth and improve psychological well-being for married spouses” (FF39). Those benefits accrue as well to the children of married spouses (FF41).
Domestic partnerships are not the same, Walker found. They are not recognized by the federal or many state governments (FF52) and in any event do not provide the same benefits or cultural status as marriage (FF53). But same-sex couples are “identical” in all relevant aspects to opposite-sex couples in their ability to form “successful marital unions” (FF48). And “marrying a person of the opposite sex,” Walker notes, “is an unrealistic option for gay and lesbian individuals” (FF51).
Significantly, Walker notes that California law encourages gays and lesbians to become parents through adoption, foster parenting, or assistive reproductive technology; about 18 percent of same-sex couples in the state are, in fact, raising children (FF 49). Children of same-sex parents benefit when their parents can marry (FF56), and children raised by same-sex parents are as likely to be “healthy, successful and well-adjusted” as those raised by opposite-sex parents (FF70). That finding, Walker adds, is accepted by psychologists as “beyond serious debate.”
What about the threat to “traditional marriage,” to use Prop. 8 supporters’ phrasing? “Permitting same-sex couples to marry,” Walker writes, “will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages” (FF54).
What then does Prop. 8 accomplish? The measure, Walker writes, “places the force of law behind stigmas against gays and lesbians” bluntly, that they are “not as good as heterosexuals” and their relationships “do not deserve the full recognition of society” (FF58). It reserves for heterosexual couples “the most socially valued form of relationship” (FF60) while it “increases costs and decreases wealth” of same-sex couples (FF66), domestic partner status notwithstanding.
Set against the acknowledged “long history of discrimination” against gays and lesbians (FF75), the Prop. 8 campaign relied on false “stereotypes” about gays and lesbians (FF80) and unfounded fears that children exposed to the concept of same-sex marriage could become gay or lesbian as a result (FF79). And, once enacted, the measure “results in frequent reminders for gays and lesbians in committed long-term relationships that their relationships are not as highly valued as opposite-sex relationships” (FF68).
Against that backdrop, Walker proceeds to find that none of the proffered justifications for Prop. 8 preserving tradition, moving slowly on social change, preferencing opposite-sex parenting, or protecting freedom of opponents of same-sex marriage pass constitutional muster. The measure has no “rational basis,” he concludes, but serves merely to “enshrine” in law the purported superiority of heterosexual to same-sex couples.
The ruling is a testament not only to the litigation strategy of the plaintiffs’ strange bedfellow lawyers, liberal David Boies and conservative Theodore Olson, but also to the factual vacuum of the Prop. 8 campaign. Just one day later, Robert George, a Princeton professor and leading gay marriage opponent, was vowing that his side out-litigated at trial would be presenting new information for appeals courts to consider. For now, however, Walker’s fact-heavy decision makes the most compelling of cases to date for recognizing marriage rights for same-sex couples.