If this goes before SCOTUS, Alito will be the one tying himself in knots to rule against it:
But Andrew Koppelman, a professor at Northwestern Law School, said “if the Supreme Court does not want to uphold same-sex marriage, its job has been made harder by this decision.”
The reason, he said, is that while appeals courts often overturn lower-court judges on their findings of law — such as the proper level of scrutiny to apply to Proposition 8 — findings of fact are traditionally given greater deference.
“They are supposed to take as true facts found by the district court, unless they are clearly erroneous,” he said. “This opinion shows why district courts matter, even though the Supreme Court has the last word.”
And to that end, Judge Walker’s 136-page opinion lays a rich factual record, with extensive quotation of expert testimony from the lengthy trial. The 2008 initiative campaign to ban same-sex marriages was suffused, the judge said, with moral comparisons of these unions and heterosexual marriage, with the clear implication that “denial of marriage to same-sex couples protects children” and that “the ideal child-rearing environment” requires marriage between a man and a woman.
Judge Walker wrote, however, that the Supreme Court has stated that government cannot enforce moral or religious beliefs without an accompanying secular purpose. The judge suggested that the defendants shifted their arguments for the courtroom, with a focus on “statistically optimal” child-rearing households and by arguing that they were abiding by the will of California voters.
California’s law, he wrote, demanded discrimination on the basis of sex and sexual orientation. “Proposition 8 places the force of law behind stigmas against gays and lesbians,” he wrote, including the notion that “gays and lesbians are not as good as heterosexuals” and “gay and lesbian relationships do not deserve the full recognition of society.”
In his ruling, Judge Walker took a conservative approach to his findings of law, said Erwin Chemerinsky, the dean of the University of California, Irvine School of Law. Judge Walker laid the factual groundwork that might have allowed him to invoke the tough “strict scrutiny” test to Proposition 8 — a test that most laws flunk.
“His decision does not depend on the higher court finding strict scrutiny,” he said, a legal finding that a higher court might well overturn. Instead, he subjected the law to a lower standard that many laws can pass, but that this one, in his opinion, does not.
“He finds it doesn’t even meet rational basis review” for the legal distinction between same-sex marriage and heterosexual unions, Professor Chemerinsky said.
Even some of those who applauded the opinion, however, said the path ahead for it is not clear or easy. Associate Professor Doug NeJaime at Loyola Law School, Los Angeles said while Judge Walker’s ruling he found “a great opinion,” he was skeptical of the strategy to take a marriage case through the federal courts. Despite Judge Walker’s efforts to set a factual foundation and the traditions of deference, he said, the Supreme Court is not completely constrained by lower court findings of fact.
“We’ve seen time and time again that the Supreme Court can do whatever it wants” with the factual record, and “I don’t see five justices on the Supreme Court taking Judge Walker’s findings of fact to the place that he takes them.”