At 1:38 p.m. Pacific Daylight Time, Chief District Judge Vaughn Walker of the Northern District of California published his opinion in Perry v. Schwarzenegger. Ten minutes later, the sky had not fallen and my sister’s heterosexual marriage had not crumbled. Thirty minutes, one hour, even five hours later, the country chugged along its normal course. Cars sped along California freeways, iPhones were running an App to track the hottest iPhone Apps and Starbucks served another few thousand cups of coffee.
But, something was different. It was not as if same-sex marriages started up again. Judge Walker may have decided that Proposition 8, the California voter-approved initiative that banned same-sex marriage in that state, violated the due process and equal protection clauses of the U.S. Constitution, but his order has been stayed pending appeal to the Ninth Circuit Court of Appeals. Nor was there a feeling of elation like that felt by millions of LGBT Americans when the California Supreme Court ushered in marriage equality from San Diego to the mountains of NoCal in 2008. Our community has been through the minefield of California politics and judicial intervention, and any elation must be tempered by the reality of the slow pace of social and legal progress.
It was a feeling of satisfaction. Satisfaction that the reckless hatred and baseless lies spewed forth by Yes on 8 supporters finally got its comeuppance in the form of a thorough, fact-intensive judicial analysis from a libertarian and appointee of President George H. W. Bush.
As any good appellate attorney knows, the savior of any lower court decision up on appeal is the judge’s findings of fact. This is because appellate courts have to accept factual findings unless they are “clearly erroneous.” A clearly erroneous finding of fact is looking up at the sky, seeing it is blue and having a weatherman tell you it is blue, but concluding that the sky is, indeed, red. We do this because it was Judge Walker who heard the evidence and evaluated the trustworthiness of the witnesses with his own two eyes.
Judge Walker’s findings of fact were striking in their total weight – spanning nearly 60 pages – but also in their evidentiary support. Each finding was accompanied by admissions from Prop. 8 proponents and uncontested evidence showing, for example, that children thrive in same-sex parent households, or that no state has ever hinged the grant of a marriage license on a couple’s ability to procreate through sexual intercourse.
Right off the bat, Judge Walker found that “[m]arriage in the United States has always been a civil matter.” The pen is indeed mightier than the sword. The LGBT community watched with dismay, anger and frustration as Prop. 8 supporters screamed that marriage equality laws would force churches and synagogues to consecrate relationships contrary to their liturgy. In one line, Judge Walker does away with this nonsense. What we are dealing with here, he states, is civil marriage. After all, it is the “[c]ivil authorities [who] may permit religious leaders to solemnize marriages but not to determine who may enter to leave a civil marriage.” The supremacy of civil marriage takes this conversation out of the church and onto the town square.
Just as important is Judge Walker’s finding about the nature of marriage.
“Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.”
Absent from this definition, based on extensive citations to evidence offered at trial, is marriage based on procreation or gender-specific roles. A marriage is a partnership based on deeply held emotional love and, as an institution, channels benefits to the married couple, their dependents and society at large.
What’s more, each of those benefits – facilitating order, creating a realm of intimacy, creating stable households, providing children with support structures, assigning caregivers, facilitating property ownership and incentivizing healthy behaviors – exists irrespective of the gender and sexual orientation of the married couple.
The entree to these appetizers came later. Judge Walker found that “[s]ame-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love to do not differ depending on whether a couple is same-sex or opposite-sex.”
This profound description of equality is at the heart of the marriage equality movement. Judge Walker cites Prop. 8 supporters’ admissions at trial that gay partnerships are loving and commitment and that the capacity to commit and love “does not depend on the individual’s sexual orientation.” We are all the same and we all deserve to be treated as such.
These findings give us hope – even, cautious optimism – that this momentous decision will withstand the minefield that lies ahead. A conservative judiciary, the potential public backlash and the harsh reality of experience are just a few of the hurdles in our path.
But don’t get lost in a morass of uncertainty, anxiety and doubt. Today was an historic day. It was a “where were you when” moment unique to our time. Instead of crowding around television screens or huddling near radios by the fire, we sat alone in our offices, or in our homes or in coffee shops with free Wi-Fi hitting the “refresh” button every minute or so. We waited anxiously for Judge Vaughn Walker to publish his decision in Perry v. Schwarzenegger because we knew that this could be the dawn of an era of equality. And while, going forward, nothing is certain, we cannot forget that in a world where progress is often of the two-steps-forward-one-step-back variety, this was decidedly a leap forward.
Ari Ezra Waldman is a graduate of Harvard College and Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Waldman is now on the faculty at California Western School of Law in San Diego. His areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. For more information about professor Waldman and his work, visit www.cwsl.edu.