As an epic civil rights trial kicks off today in San Francisco, the ultimate constitutionality of same-sex marriage is perhaps the least important decision Chief Judge Vaughn Walker will make. He won't have the final say on that.
What will matter more are his decisions and actions along the way -- the factual findings, evidentiary umpiring and the overall tone and tenor of the proceedings. He is sure to be second-guessed on all those fronts, too: One conservative commentator has already suggested Walker's preference for cameras in the court will turn the federal challenge to Proposition 8 into a circus trial.
Walker's pretrial rulings suggest he wants to create a detailed factual record. Prop 8 supporters are clearly worried about the record he'll create, and the findings of fact that will flow from it. Those will be formidable instruments if the case ultimately reaches the U.S. Supreme Court, and its presumed swing voter, Justice Anthony Kennedy, said Thomas Goldstein, the Akin Gump Strauss Hauer & Feld partner who runs SCOTUSblog.
"Thoughtful appellate courts, and the Supreme Court, will defer to him substantially" on the facts, Goldstein said, adding that two sets of arguments have generally been leveled against same-sex marriage. The first involves practical questions like whether same-sex marriage is unhealthy for children, which could give Californians a constitutionally valid basis on which to forbid the marriages.
But the second objection, articulated by conservative justices like Antonin Scalia, is rooted in the belief that voters have the right to take a moral or ethical stand against same-sex marriage, should they so choose.
"What Vaughn Walker is going to do will be really important to the first [objection], and probably not at all to second," Goldstein said.
That Walker will hear evidence on subjects like whether homosexuality is immutable -- or whether the Yes on 8 campaign workers were biased -- rankles some conservatives. Walker could be attempting to conform the legal standard to whatever factual evidence comes up, said Edward Whelan III, president of the Ethics and Public Policy Center in Washington, D.C.
"Maybe he'll come up with some ruling that purports not to invent a federal constitutional right to same-sex marriage," he said, "but instead rests on the particularities of Prop 8, something about the process, the sponsors, or the x number of pre-Prop 8 marriages that were grandfathered."
Whelan thinks the case should be decided on the law, and certainly not on camera.
"Either there is a federal constitutional right to same-sex marriage, or there isn't," he said. "How can that question possibly turn on factual inquiry into the motivations of Proposition 8's sponsors?"
Plaintiffs see a discriminatory Yes on 8 effort playing directly into the court's equal-protection analysis. And evidence about the long history of anti-gay bias before Prop 8 will help determine whether gays are a suspect class, said Therese Stewart, San Francisco's chief deputy city attorney.
"I understand why [they] don't want to have [a trial] happen, because their arguments don't stand up to cross-examination, or any kind of thoughtful, logical process," said Stewart, who represents the city as an intervenor in the case.
To be sure, Walker has told the parties from the outset that his goal was to create a solid record. "How we do things here is more important than what we do," he said in July.
An appointee of George H.W. Bush, Walker is well-known for his independent streak. He has taken strong stands against the government on drug sentencing laws and the state-secrets privilege. He also once ordered a defendant convicted of mail theft to stand on the street wearing a sandwich board that described his crime (a sentence which the 9th U.S. Circuit Court of Appeals affirmed).
On cameras in the court, Walker and 9th Circuit Chief Judge Alex Kozinski (another well-known maverick) willfully orchestrated a break from official federal judiciary policy. But the actual mechanics of the Prop 8 broadcast demonstrate a nod to the out-of-court optics. In ordering that the trial be posted to YouTube -- instead of broadcast on a live, high-quality feed -- Walker probably limited how much play the lawyers will get on the cable shows.
Walker has already rebuffed attempts to keep anti-same-sex-marriage experts off the stand, preferring instead to hear their testimony and weigh it. Admitting lots of material into evidence, and then making well-reasoned credibility findings, is much more likely to create a bulletproof record that will stand up on appeal -- as opposed to just excluding testimony out of hand, Goldstein said.
"This is not a case where less is more. More is more here," he said.
Evidence about Yes on 8 campaign mechanics will probably receive wide airing. Last week Walker granted a motion to compel the deposition of Douglas Swardstrom, a top Yes on 8 official who had fought for months to keep his name from the plaintiffs.
According to campaign finance documents, Swardstrom is affiliated with Fieldstead & Co., which doles out money on behalf of Howard Ahmanson Jr. An extremely wealthy benefactor of conservative causes, Ahmanson's views have been controversial, especially regarding the influence biblical law should have on the civil code. Ahmanson was reportedly a major contributor to the Yes on 8 campaign.
Swardstrom's attorneys, led by James Bopp Jr. of Bopp, Coleson & Bostrom, did not respond to requests for comment.
Gibson, Dunn & Crutcher's Theodore Olson and Cooper & Kirk’s Charles Cooper are scheduled to deliver opening statements beginning at 9 a.m.
