When judges lie

Judge Vaughn Walker

I’m going to start out by making a pretty bold statement: Judge Vaughn Walker is a liar.  Judge Walker is the Chief Judge of the Northern District of California and the author of the recent Perry v. Schwarzenegger decision invalidating California Proposition 8.  And in that decision, he lied through his teeth.  When I say that, I’m not engaging in Monday morning quarterbacking  or judge-bashing.   Judge Vaughn was merely following the example of none other than the U.S. Supreme Court, which is perfectly understandable.  I might do the same in his shoes.  But it still remains that his assertion that Proposition 8 failed the rational basis test  is clearly false, and that he is employing Lawrence v. Texas-style intermediate scrutiny under another name.

Lawrence v. Texas was the 2003 Supreme Court case that struck down the Texas statute prohibiting sodomy.  The famous language from Lawrence is that morality alone is an insufficient state interest, which explicitly overturns the 1986 case Bowers v. Hardwick that arose from a similar anti-sodomy law in Georgia.  The majority opinion in Lawrence was written by Justice Kennedy, who purported to apply the rational basis test to the Due Process claims.  But it was immediately clear to all observers that the majority’s standard was something more than rational basis.  In order to survive a Due Process challenge under the rational basis standard, a court need only find some possible rational basis for the law, no matter whether the legislature actually had that basis in mind or whether the parties articulate that basis.   Justice Kennedy’s majority opinion imposed a much less lenient standard, one that will probably evolve as an intermediate standard between rational basis and strict scrutiny.  But the majority lied and called it rational basis, because the prevailing justices didn’t want to admit they were imposing a non-existent level of scrutiny.

Given the holding and the subject matter in Lawrence, it’s no surprise that Judge Walker relied on it heavily.  The level of generality is extremely broad, just as in Lawrence.  Judge Walker’s opinion pontificates about social acceptance and the emotional impacts of marriage, rather than a Bowers-style narrow focus on the legal status and its associated liberty interests.  To the amusement of many, Judge Walker even cited Justice Scalia’s dissent in Lawrence.   But most significantly, he declared that there was no rational basis to the enacted law (Proposition 8), just as the majority in Lawrence had done to the Texas sodomy law in 2003.  Could the State of California had a rational basis for limiting marriage to heterosexual couples?  Undoubtedly, and the intervening defendants in Perry v. Schwarzenneger submitted evidence to prove just that.  It appears that they didn’t do a very good job, but it still clearly passed the extremely permissive rational basis standard.  And yet Judge Walker cited that same standard for striking Prop 8 down.  Clearly, the “rational basis” test he imposed was that of Lawrence v. Texas, and is more properly considered to be some ill-defined intermediate level of scrutiny.  In short, Judge Walker lied.

Now, I should say I am making no judgment as to the proper outcome of the Perry case under any other claims, and that I don’t entirely blame Judge Vaughn Walker for hiding what he was doing.  The full blame lies with Justice Kennedy and the Lawrence majority.  Those sorts of decisions at the Supreme Court level cause significant confusion at the district court and circuit levels.  The silver lining may be that an appeal of Perry v. Schwarzenegger could give the Supreme Court a second chance to be honest about what it did in Lawrence.  But given the potential standing issues and pitfalls associated with an appeal, I’m not going to hold my breath.