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Prop. 8 analysis: Must appellate court accept findings of fact by judge who overturned gay-marriage ban?

December 6, 2010 | 11:57 am

Mcdonald

A federal appeals court on Monday began hearing arguments on the constitutionality of Prop. 8, California's ban on same-sex marriage.

Barry P. McDonald, a professor at the Pepperdine School of Law, says the second portion of Monday’s hearing is focused on whether the appeals panel must accept findings of fact made by U.S. District Court Judge Vaughan R. Walker when he overturned the state’s ban on gay marriage. Here's an analysis he provided to The Times:

In the next hour, assuming the court finds that there is standing to prosecute this appeal, arguments will focus on to what extent the appellate court must accept findings of fact by Judge Walker on key issues like whether sexual orientation is a matter of nature or choice, or whether children suffer any harm by being raised in gay households. The Prop. 8 challengers will be invoking a general rule that says appellate courts must normally give great respect and deference to facts found by a trial court. The Prop. 8 sponsors will be arguing that there is an exception to this rule for what they call "legislative" facts. The existence and scope of this exception is very murky in the case law, but essentially it says that when a court is determining sociological "facts" as opposed to facts about the parties in a particular case, then appellate courts do not need to give such sociological findings deference and can determine those questions for themselves.

The U.S. Supreme Court has not spoken definitely to this exception, but the few remarks they have made about it indicate that many justices would probably agree with it and accept it.  The concern they would have is that important questions of constitutional law could turn on precisely which sociologists a party selected to testify at trial, and what particular view they held on certain issues (in other words, the court would be concerned that social science "is not an exact science" and like all science can be manipulated to serve a person's interests).  And those concerns would be magnified in this case because the Prop. 8 sponsors presented only two people to testify on these issues, who Judge Walker himself thought were not qualified to speak to such questions.

The bottom line: I believe it is likely that were this case to reach the Supreme Court, it would feel free to take an independent look at scholarly literature and other sources of information to determine whether such sociological questions were at least open to reasonable debate.

FULL COVERAGE:

Issue of same-sex marriage may end up back in state court

If governor and attorney general don't defend gay-marriage law, who can?

If ruling overturning Prop. 8 allowed to stand, court must decide who would be bound by it

Photo: Barry P. McDonald. Credit: Pepperdine School of Law

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