RAY SUAREZ: We take a closer look now at what comes next, in the wake of this decision.
Jennifer Pizer is senior counsel and director of the Marriage Project for the Lambda Legal Defense Fund, which worked against Proposition 8. And Robert George is the founder of the American Principles Project, a conservative group that supported Proposition 8. He’s a professor of jurisprudence at Princeton University.
And, Professor, let me start with you.
Today, that notice to appeal was filed, a formality. But what does flipping that switch do? What do the two teams involved in the original case start doing now?
ROBERT GEORGE, professor of jurisprudence, Princeton University: Well, they start to prepare their briefs and arguments for the appeal, which will be before a three-judge panel of the Ninth Circuit.
They will then either uphold Judge Walker or reverse him. However that comes out, it will likely then lead to a petition for a hearing en banc, that is, to have all the judges of the Ninth Circuit review the case. And then, however that comes out, it will go to the Supreme Court of the United States.
It’s a peculiarity of our system that a decision as fateful as this one might very well fall to a single judge’s decision, but that judge won’t be Vaughn Walker. That judge might very well be Anthony Kennedy, Justice Anthony Kennedy of the Supreme Court of the United States.
RAY SUAREZ: That first appeal, how many judges in the Ninth Circuit hear that, and how many — how are they chosen?
ROBERT GEORGE: Randomly. And it will be a three-judge panel in the first instance. And then the entirety of the court will make a decision about whether to hear it as a group, en banc.
But, either way, Ray, it’s not going to end there. It will go to the Supreme Court of the United States. It doesn’t matter whether the Ninth Circuit reverses Judge Walker or affirms Judge Walker. In the end, it will be before the Supreme Court of the United States.
RAY SUAREZ: Jennifer Pizer, Judge Walker ruled on specific due process, equal protection grounds. Does his ruling in effect create the grounds on which the appeal is argued?
JENNIFER PIZER, senior counsel, Lambda Legal Defense Fund: Well, I think the most important thing Judge Walker did was heard the testimony of a great many witnesses and provide a very detailed set of findings of fact addressing the interests that had been advanced by the Prop 8 defenders, the reasons that they say Prop 8 should be upheld as constitutional.
Judge Walker heard — heard professors and experts. And his findings examine their credentials and make a series of conclusions. The appellate courts, as a general matter, defer to factual findings made by a trial judge when a judge has heard live witness testimony. So, that, I think, is the most important thing to keep in mind.
But Judge Walker also did legal analysis under both, as you said, the substantive due process clause and also equal — equal protection analysis. And his reasoning will be the starting point for the Ninth Circuit judges who hear the case. They, of course, will also have legal briefs from both sides and perhaps from many friends of the court offering additional ways of looking at the issues.
And the three-judge panel will look at the legal analysis afresh, as is always done for — for legal analysis, but I think very much informed by the factual findings put together by Judge Walker.
RAY SUAREZ: When you say additional ways of looking at the issue, does that mean both sides can bring up things that they didn’t bring up in the original trial?
JENNIFER PIZER: Well, a great many arguments were made to Judge Walker in the briefs. And there were friend of the court briefs submitted to Judge Walker. So, there have been many different perspectives on the issues.
Equality law in constitutional jurisprudence is quite complicated. And there’s a surprising number of unanswered questions when it comes to anti-gay discrimination. For example, should anti-guy rules be seen presumptively as suspicious, or suspect is the legal term, or should they not? That’s an open question, where it’s been resolved for quite a long time for other types of group-based discrimination, such as race or sex or discrimination based on religion.
So, there’s — there’s been a lot of analysis of that. And, similarly, there are different ways of thinking about substantive due process or liberty, as we say. And — and, so, the different perspectives were given to Judge Walker. He gave his reading.
He’s offered two different important ways of considering the equal protection analysis. And all of that, I think, will be the starting place for the Ninth Circuit judges.
RAY SUAREZ: Professor George, when they get started, will the fact that the supporters of Proposition 8 put on a very brief case hamper them at all in appeal? Or do they get, in effect, a fresh start?
ROBERT GEORGE: No, I don’t believe that it will hamper them.
I believe there will be a lot of friend of the court briefs filed on both sides. There will be a lot of information that will come across the table for the appeals courts, both the Ninth Circuit and the Supreme Court of the United States, that weren’t there in the case of the trial judge.
So, I think that, while it’s true that the analysis will begin with the findings of fact that Judge Walker recorded in his opinion, a great deal more information is going to be under consideration at both levels. But, ultimately, again, it’s going to be the — the reflections of the Supreme Court justices and the arguments that they entertain and, in the end, accept and reject that will determine the outcome here.
RAY SUAREZ: Professor George, many times, during the case, Vaughn Walker, Judge Walker, cited as support for his view previous Supreme Court rulings notably involving gay rights in Texas and in Colorado. Does that bind an appeals court? Do they have to defer to Supreme Court precedent?
ROBERT GEORGE: Yes, but there’s not a precedent that is on point here. It’s a fresh issue as far as the court of the Supreme Court of United States is concerned.
Now, there’s an irony and a peculiarity here, especially with the Texas case that you’re referring to, which I believe is Lawrence vs. Texas, which was a case that struck down a Texas anti-sodomy law on constitutional grounds.
And, in that case, the decisive vote was cast by Justice Kennedy, who, in his opinion, said, now, look, nothing in this ruling, nothing in my argument here is meant to have bearing one way or another on the marriage question.
But Justice Scalia, writing by way of criticism of Justice Kennedy in dissent, said, don’t believe it for a moment.
So, here’s the irony, Ray. It’s going to be people on the anti-Prop 8 side who will be saying Scalia had that one right and people on the pro-Prop 8 side who are saying — going to be saying Kennedy had that one right.
JENNIFER PIZER: If I could just address that for a second, I agree in part with what was just said, in that the Lawrence v. Texas case, which is actually a case that my colleagues litigated, resulted in, I think, the most important legal precedent for this litigation, where Justice Kennedy wrote that both the liberty guarantee and equality guarantees are especially related when it comes to a minority group, and in particular lesbian and gay Americans, being denied the same — the same freedom to have a family life that heterosexual Americans have. There’s an equality problem with respect to basic liberty.
And while Justice Kennedy said he wasn’t deciding the marriage question in that case, which he wasn’t, the principle will apply, I think, or certainly should apply, in the same way.
And the Colorado case that you just mentioned is also a very important precedent, because that, like this litigation, involved a voter-passed initiative that took away the rights of gay, lesbian, and bisexual people living in Colorado.
There was a trial. There was evidence that was very helpful to the judges at every stage of that case, including at the U.S. Supreme Court, where, again, Justice Kennedy looked at the evidence, and he concluded that equal protection had been violated, very much informed by the factual record.
RAY SUAREZ: We will have to continue the conversation when the appeals process continues.
Jennifer Pizer, Robert George, thank you both.
ROBERT GEORGE: Thank you.
JENNIFER PIZER: Thank you.