Whatever happens with Chief Judge Vaughn Walker's ruling on Proposition 8, gay rights advocates see it as a game changer for legal battles beyond the right to marry.
As they digest the import of Walker's decision and look ahead to litigation outside the grand prize of marriage, they're focused on two main aspects of Walker's 136-page decision: its conclusion that "the evidence presented at trial shows that gays and lesbians are the type of minority that strict scrutiny was designed to protect," and its extensive findings of fact, which they say could help their cause in pending state and federal cases as well as in the court of public opinion.
Walker's holding on strict scrutiny is the argument gay rights lawyers have been making in courts across the country, and has implications for the military's "Don't Ask, Don't Tell" policy, adoption restrictions and other challenged policies.
"Any other rule that denies rights or otherwise mistreats people on the basis of sex orientation -- such as Florida's anti-gay adoption law -- any and all of them should be subjected to strict scrutiny," said Jennifer Pizer, senior counsel and marriage project director for Lambda Legal.
Advocates are also excited about the way that Walker tied together discrimination on the basis of both sex and sexual orientation.
"Having considered the evidence," Walker wrote, "the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs' equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex."
That matters, explains David Cruz, a professor at University of Southern California Law School, because claims of sex discrimination are usually afforded heightened scrutiny.
"If that's accepted by other judges, if they find this persuasive, other cases involving discrimination against same-sex couples could be treated as sex discrimination and subject to intermediate scrutiny, and rational basis wouldn't be enough to uphold them," Cruz said.
Much of Walker's ruling came in the form of sweeping factual findings. Many of these findings -- there are a total of 80 -- relate to commonly held sociological assumptions and arguments wielded in fights over gay rights. Finding No. 56, for example: "The children of same-sex couples benefit when their parents can marry." Or Finding No. 76: "Well-known stereotypes about gay men and lesbians include the belief that gays and lesbians are affluent, self-absorbed and incapable of forming long-term intimate relationships. ... No evidence supports these stereotypes."
These extensive findings may help in debunking common anti-gay arguments, Pizer said. "Many people who don't know any gay people and haven't thought about these things very much, sometimes those arguments resonate with them."
Shannon Minter, legal director of the National Center for Lesbian Rights, called the factual findings the "heart and soul" of Walker's decision on Prop 8.
"That's what sets this decision definitively apart from any other decision -- not just on marriage but on core constitutional issues affecting gay people," Minter said. "We've never seen such comprehensive findings."
Conservative legal scholars envision problems if, or when, Walker's reasoning is applied beyond gay rights cases. If Walker's treatment of sexual orientation as a suspect classification stands, said John Eastman, a professor at Chapman University School of Law, it "could have some pretty profound impacts."
Once you describe marriage as a fundamental right, he said, it would be difficult for a judge to rule against a polygamist.
"Think about other restrictions on the right to marry that are in our law that probably don't meet strict scrutiny," he said, citing minimum age requirements for marriage and the prohibition on first cousins marrying.
M. Edward Whelan III, president of the Ethics and Public Policy Center in Washington, D.C., sees other troubles ahead.
He pointed, for example, to where Walker found that Prop 8 is essentially based on the idea that "same-sex couples simply are not as good as opposite-sex couples."
What Walker is saying, Whelan said, is that those who oppose same-sex marriage "are irrational bigots."
That holding, he warned, could be used to justify the punishment of such "irrational bigots" through the denial of government money or the right to adopt.
