washingtonpost.com
Prop 8 overturned in California: What's next?

Robert Barnes
Washington Post Staff Writer
Thursday, August 5, 2010; 12:00 PM

A federal judge in California ruled Wednesday that the state's ban on same-sex marriage violates the constitutional right to equal protection. The decision is the first step in a legal struggle that is widely expected to end at the Supreme Court.

Washington Post staff writer Robert Barnes was online Thursday, Aug. 5, at Noon ET to discuss the decision and what to expect next.

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Robert Barnes: Hello everyone. Thanks for joining me and thanks for your interest in the story. It was a big decision, one that most likely will end at the Supreme Court, so let's get to your questions.

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Washington, D.C.: Did the opponents of Prop 8 engage in a little forum shopping prior to filing their suit? It seems to be too much of a coincidence that the suit would be heard in front of one of three purportedly gay District Court judges. I realize that forum shopping for a sympathetic judge happens all of the time, but if that happened here, surely it's worth mentioning in your article today.

Robert Barnes: I don't think you could call it forum shopping. The suit challenged California's Proposition 8 so it had to be filed there. The city of San Francisco, which you might recall started all of this when the mayor said marriage licenses could be issued to gay couples, was one of the plaintiffs. And the cases are assigned randomly, so it could not be known at the time which judge would get the case. I think the surprise for all concerned is when the judge ordered a full evidentiary trial on the issue.

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Albany, N.Y.: An admittedly quick reading of the judge's decision leaves me a bit taken aback at the weakness of the factual case offered by the defenders of Prop 8 -- Few witnesses, one of which failed to meet well-established standards for expertise, and very little in the way of substantive evidence to support the state's claims -- Is this record likely to stand up the chain of appeals, or do appeals judges have leeway to downplay those parts of the factual record they don't like?

Robert Barnes: The judge chastised proponents of Proposition 8 for calling only two witnesses, one of whom Walker decided was unqualified to be an expert. The lawyers on that side said witnesses were reluctant to testify because of the adverse reaction some have received from the gay community. But that didn't stop them from campaigning for Prop 8. At any rate, you're right that if left the trial with a very one-sided pile of evidence. That will be the factual record of the case as it moves through the appeals process, although judges above Judge Walker are free to disagree with his application of the law.

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Tampa, Fla.: Some have attacked Judge Walker as biased (not surprisingly, the attacks are aired on Fox). Is it not true that Judge Walker was nominated by Pres. Reagan, and re-nominated by Pres. Bush I after gay rights organizations opposed him for being hostile to gay rights? Is it not true that Nancy Pelosi, among others, also opposed him on these grounds?

So where's the bias? If he's biased because he's gay, then a straight judge also would be biased, too.

Robert Barnes: You're right that Walker was first nominated by Reagan, and when it stalled, renominated by George H.W. Bush. And yes, gay groups originally opposed his nomination because he had represented the US Olympic Committee against a group that wanted to use the title "Gay Olympics." As he told the San Francisco Chronicle, "Life is full of irony."

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Boies and Olson: What effect do you think the two main lawyers had on the outcome? Obviously they argued it and won, but could any lawyers have won this, or did the sometime adversaries bring something more to the case?

Robert Barnes: I think they had a huge effect, not only because of their legal skills but because of the enormous resources they brought to the case. In contrast to what we discussed in the previous question, Walker was extremely impressed with their witnesses, and virtually adopted all of the arguments they made. After attending the closing arguments and then reading the decision, I can't think of a thing they asked that the judge did not grant.

Now whether or not Boies and Olson have made the correct strategic decision that this is the time to bring such a case is something we won't know for a while.

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Anonymous: I take exception to one passage from your article today: "The decision set off joyous celebrations in California and elsewhere, outrage among conservative activists and a solemn determination among those opposed to same-sex marriage to appeal the decision to the nation's highest court." Wouldn't it have been more evenhanded to say that the decision "set off celebrations among liberal activists" to start this sentence? In truth, most of California's citizens did not join in joyous celebtrations and the sentence would more accurately equate liberal's reactions to conservative's reactions in the second part of the sentence.

Robert Barnes: I didn't mean to suggest that the decision was embraced by the majority of Californians. I was simply saying that the demonstrations that took place after the ruling were by those celebrating the ruling rather than protesting it. But I always welcome constructive criticism from readers--I swear. Just not so much from editors.

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Richmond, Va.: Robert, why are lawyers from private organizations defending the lawsuit? Isn't the state of California the defendant? Thanks.

Robert Barnes: California declined to defend Prop 8. Gov. Schwarzenegger took no position on it--although he seemed to welcome the ruling in a statement. Attorney General Jerry Brown, the Democrat running to be governor again, said he agreed the initiative was unconstitutional, so he wouldn't defend it. So it fell to the group that advanced the proposition in the first place.

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Washington, D.C.: If this gets appealed all the way, what will it mean for DOMA?

Robert Barnes: This refers to the federal Defense of Marriage Act, which forbids the federal government from recognizing gay marriages. It is on a separate legal track. A federal judge in Massachusetts last month struck that law as unconstitutional. It said it discriminated against same-sex couples in states where they can legally be married.

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Washington, D.C.: Can you explain the process of a stay? Is it possible that same-sex marriages in California could occur before the appeal?

Robert Barnes: Judge Walker stayed his ruling until hearing more arguments about whether it should be stayed throughout the appeals process. He has asked for briefs by Friday. If he does not stay the order, opponents of same-sex marriage could ask for a stay from the U.S. Court of Appeals for the 9th Circuit, and, if turned down, from the Supreme Court. It would not be surprising if the judgment is stayed at some point. One of the oddities of the California case is that there are about 18,000 legally married same-sex couples in the state. Those unions occurred in the five months between the state supreme court allowing same-sex marriage and the passage of Prop 8.

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Washington, D.C.: As to the other commenter's crticism of the artice, to say it set off celebrations among "liberal activists" makes a lot of assumptions about the politics of those who support marriage equality. Ted Olson is as conservative as they come, and he was the lead counsel for the gay couples. A lot of "conservatives" believe that the government has no business telling gay people they cannot marry. Your article was correct, so don't take the bait offered by anonymous.

Robert Barnes: I'd be willing to bet that the vast majority of those celebrating yesterday don't agree with Ted Olson on much except same-sex marriage.

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Rerun of civil rights history?: Do you think there are some parallels to the breakdown of separate and unequal laws applied to blacks up until the 60s to this struggle? The military being desegregated and the breakdown of laws of preventing marriage between races at many states comes to mind. Seems hard for these groups to form effective arguments against it.

Robert Barnes: I'm going to try to answer this question along with a related one coming up next

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Never the time: For me I'm tired of groups saying we're not ready for gay civil rights. They weren't ready for unions. They weren't ready for desegregation. They weren't ready for health care. Whenever we separate a group in America to have worse rights then others it hurts everyone.

Robert Barnes: Never the time, you make the same argument as Olson. And to the previous question, Judge Walker's opinion was replete with references to changing times and Loving v. Virginia, which struck laws banning interracial marriage and Lawrence v. Texas, which struck laws against homosexual conduct. But one difference between those examples and the current one that several have pointed out is that they were gradual. Brown v. Board was the culmination of a step-by-step process. When Loving was decided the number of states that banned interracial marriage was diminishing. While polls certainly show public acceptance of same-sex marriage growing, and the existence of a significant generational gap, voter response to same-sex marriage has been almost universally negative.

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Washington, D.C.: This is a serious question, not simply snark: could the opinion upholding the rights of gays to marriage be used as precedent for polygamous marriages (or for overturning laws against polygamy)? Thanks.

Robert Barnes: Well, what Judge Walker said marriage was a fundamental right, and thus it had to be open to those who chose to marry a person of the same sex. I don't know that it could be extrapolated to mean you have the right to marry as many people as you want. I'm sure you would find lawyers who disagree.

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washingtonpost.com: Full text of Prop 8 ruling

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Washington, D.C.: I read the ruling last night, and I agree with an earlier poster. The proponents of Proposition 8 seemed disorganized, unprepared and almost clueless. I even thought for a moment that they might be trying to throw the case. Did they reject help more mainstream conservative groups? Why wasn't the governor also listed as a defendant? Didn't the CA AG work on the case or did Arnold, pass the job to someone he knew would fail?

Robert Barnes: I think we've covered part of your question. I think those defending Prop 8 believe the question will eventually be decided as an issue of law and precedent, not evidence. They believe that higher courts will agree that they need only show that California voters were being rational in their decision to include a traditional definition of marriage in their constitution.

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Fairfax, Va.: How long will it take to reach the Supreme Court?

Robert Barnes: Quick answer: I don't know. Longer answer: depends on how the 9th Circuit handles it. And whether whatever decision is made by the three-judge panel that considers it is appealed to the full court rather than the Supreme Court. A year or so seems the earliest, longer than that seems more likely. (although the issue of the stay could get to the high court more quickly.)

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Beallsville Pa.: The ruling was said to be written for Supreme Court swing voter Kennedy in that it used a lower standard that Kennedy himself used recently. What are the prospects that the Supreme Court will therefore uphold the ruling?

Robert Barnes: I think any judge deciding a high-profile case that he or she knows will be appealed to the Supreme Court has to be thinking of Justice Kennedy. Not only is he the justice most often in the middle between the court's liberal and conservative wings, he was the author of Lawrence, the decision that struck the anti-sodomy laws. But you'll have to forgive me for not predicting how the court will rule. I don't think that's something I should do, even if I thought I knew.

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Crystal City, Va.: If President Obama is against both gay marriage and Prop. 8, what legal or legislative approach does he propose to stop gay marriage?

Robert Barnes: I hope you've read my colleage Mike Shear's take on the president's somewhat muddled view. It reminds me of something a gay rights blogger wrote, which I quoted in a profile of Olson (and i paraphrase): Ted Freaking Olson is better on same-sex marriage than President Obama!

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washingtonpost.com: President Obama's beliefs meet his policy

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California: About the poor preparation on the losing side: I have heard that they considered the judge's decision to be predictable. Further, the appeals court is considered to be a rubber stamper, never seeing a leftist cause it didn't love. So opponents of gay marriage don't have any faith in California courts, and are pinning their hopes on the Supreme Court.

Robert Barnes: I think there would be a lot of agreement with that analysis. It does seem, though, that they would not have wanted Walker to compile such a finding of fact in his opinion.

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Bridgewater, Mass.: I'm in the process of reading the decision, and it seems the facts are overwhelmingly on the side of the gay-marriage defenders. On the other hand, public opinion is taking its time about catching up.

What bothers me is that if the case goes to the Supreme Court, and the Justices come down 5-4 for it, we'll be faced with the situation that developed following Roe v. Wade: decades of angry, occasionally violent protest. Would the best outcome be for the Court to decline the case?

Robert Barnes: We're out of time, so we're going to have to let Bridgewater have the last word. There are gay rights activists who would agree with you that the political process is the way to go, even if it takes longer. Remember there was not unanimity among the groups that this lawsuit was wise.

And judge walker himself raised that issue in closing arguments. Attorney Charles Cooper told him not to sail into a "judicial tsunami." Olson told him he had to follow the law, not public opinion polls.

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Robert Barnes: Thanks for all the good questions today. I'm sorry there wasn't enough time to get to them all. Let's do this again sometime.

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Editor's Note: washingtonpost.com moderators retain editorial control over Discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions. washingtonpost.com is not responsible for any content posted by third parties.

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