Vaughn Walker, the U.S. District Court judge who ruled California’s ban on gay marriage unconstitutional, seems to be a wily sort.
As the New York Times observes:
“The ultimate outcome of the California case cannot be predicted, but appeals court judges and the justices at the highest court in the land could find themselves boxed in by the careful logic and structure of Judge Vaughn R. Walker opinion, legal experts said.
…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.”
Walker heard 13 days of testimony and argument, much of it dominated by attorneys arguing on behalf of gay marriage. And they weren’t just any attorneys. Theodore Olson, a former U.S. solicitor general and the lead attorney for George W. Bush in Bush v. Gore, was joined by David Boies, who argued Gore’s side before the Supreme Court.
Dahlia Lithwick at Slate agrees that the impressively fact-based nature of Walker’s work and the failure of gay-marriage opponents to anticipate his approach will makes his conclusion hard to attack:
“It’s hard to read Judge Walker’s opinion without sensing that what really won out today was science, methodology, and hard work. Had the proponents of Prop 8 made even a minimal effort to put on a case, to track down real experts, to do more than try to assert their way to legal victory, this would have been a closer case. But faced with one team that mounted a serious effort and another team that did little more than fire up their big, gay boogeyman screensaver for two straight weeks, it wasn’t much of a fight.”
She also notes that Walker’s opinion was “written for a court of one — (Justice Anthony Kennedy) —the man who has written most eloquently about dignity and freedom and the right to determine one’s own humanity.”
Vaughn R. Walker is not Anthony Kennedy. But when the chips are down, he certainly knows how to write like him. I count—in his opinion today—seven citations to Justice Kennedy’s 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas’ gay-sodomy law). … Walker trod heavily on the path Kennedy has blazed on gay rights: “[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse,” quotes Walker. “‘[M]oral disapproval, without any other asserted state interest,’ has never been a rational basis for legislation,” cites Walker. “Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate,” Walker notes, with a jerk of the thumb at Kennedy.”