Scholars: Prop 8 Ruling May Be Tough To Overturn

Wednesday's ruling in California overturning Proposition 8 has been hailed by legal scholars as a great opinion. Whether or not they agree with the decision on a personal level, many scholars say the ruling from Judge Vaughn Walker may be tough to overturn on appeal. Melissa Block talks to law professor David Levine of the U.C. Hastings College of the Law about Judge Walker's ruling.

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MELISSA BLOCK, host:

For some legal analysis on how Judge Walker came to his decision, we turn to David Levine. He's a professor at University of California, Hastings College of the Law. Levine voted against Proposition 8, and he supports same-sex marriage. He says it's clear that in issuing his opinion Judge Walker had upcoming challenges in mind.

Professor DAVID LEVINE (Professor of Law, University of California, Hastings College of the Law): Judge Walker wrote a very careful opinion while being very, very broad, certainly, with an eye to an appeal, but the fundamental part of it was a very careful analysis of the factual record in front of him.

BLOCK: Judge Walker did spend dozens and dozens of pages in this ruling setting out these findings of fact. He concluded individuals cannot change their sexual orientation. There's no evidence of the negative effects of gay marriage on society or on the institution of marriage. Why don't you explain what weight those findings' effect might carry as this ruling is appealed?

Prof. LEVINE: When a case is appealed, the appellate court is supposed to review the findings of fact with a great deal of deference. The trial judge saw the witnesses, heard the witnesses, smelled the witnesses, and therefore those credibility determinations are very, very important.

On the other hand, the conclusions of law that a trial judge reaches are not entitled to any deference. The appellate court is the court that says what the law is, and so that by dividing it up in that way, you're signaling to the appellate court which of the parts that should be left alone in a normal course of affairs and which of the parts that the appellate court ought to look at very, very closely.

BLOCK: So in laying out so many of these findings of fact, is he essentially building as strong a bulwark as he can against getting overturned?

Prof. LEVINE: I think that's absolutely right. Judge Walker certainly knew that this case was on its way to higher courts, and he did his very, very best all the way through this opinion to write it in such a way that he would be upheld.

BLOCK: And in terms of these questions of facts based on the evidence, there was a real imbalance here. The supporters of Prop 8 only called two witnesses, and Judge Walker is pretty scathing in his evaluation of them. He says their opinions were unreliable and entitled to essentially no weight.

Prof. LEVINE: Well, that's right. You know, the defenders of Prop 8 did something very, very interesting here. The defenders took the position that the opponents of Proposition 8 had to put on an overwhelming case, and that they really had to do little or nothing. So they chose to use the means of trying to cross-examine the witnesses of the plaintiffs, and then they ended up with these two incredibly poor witnesses. You know, my observations when the trial was going on is that they were really bad witnesses, and probably in hindsight, they shouldn't have been put on at all. So I have no problem with Judge Walker's ruling on that side of it.

BLOCK: I've been reading some analysis of this ruling, and folks are concluding that this was an opinion that was specifically targeted at the U.S. Supreme Court and specifically at Justice Kennedy. What does that mean?

Prof. LEVINE: Well, because I think so many people assumed that this is going to be a five-four opinion if it gets to the U.S. Supreme Court, and that Justice Kennedy is going to have his now-familiar role as the swing vote, you have to write an opinion that's going to appeal to Justice Kennedy. And Justice Kennedy, after all, has written a couple of pretty gay-friendly opinions. And a lot of the language in Judge Walker's opinion kind of echoes what Justice Kennedy did in those opinions. And so, if Justice Kennedy is kind of true to what he did before, he will vote with the four liberal justices in this case and affirm this opinion.

BLOCK: Let's talk a bit about Judge Walker. He is a Republican appointee to the federal bench. Opponents of gay marriage are calling him an activist judge. What can you tell us about him?

Prof. LEVINE: Well, you know, when he was first appointed, nobody thought he was going to be an activist judge in the sense of - the way the conservatives mean it. The gay community in San Francisco vehemently opposed him because, very famously, he represented the Olympic Committee in a case that stopped the gay games from calling themselves the Gay Olympics. And so, as a result, the feeling was that he would be anti-gay when he got on the bench, and indeed he's been anything but.

He is certainly - I mean, he's a - I would call him a libertarian Republican. He has not hesitated in some cases to rule in favor of criminal defendants. He certainly has an independent streak about him. And the way he went about handling this case certainly was completely reminiscent of the way in which he tends to run his courtroom.

BLOCK: And he is, according to numerous published reports, himself gay.

Prof. LEVINE: Yes. Certainly, that's common knowledge in San Francisco. It was in the San Francisco Chronicle. And when that came out in the newspaper, all the lawyers in the case, you know, I think it's fair to quote "Seinfeld" and just say, they all thought, not that there's anything wrong with that. The defenders of Proposition 8 certainly could have raised that to the court as a basis for disqualifying Judge Walker, and they just let the issue of his sexuality slide.

I mean, everybody has a sexuality. You have one. I have one. And you have to be able to decide cases.

BLOCK: David Levine, thank you very much.

Prof. LEVINE: My pleasure. Anytime, Melissa.

BLOCK: David Levine is a professor at the University of California Hastings College of the Law.

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