More on Whether the Facts Matter in Perry v. Schwarzenegger

Over at CoOp, Dave Hoffman has more on the relative importance of the facts in Perry:

[T]here are facts, and then there are constitutional facts. Almost every “fact” identified by Judge Walker is of the latter type — “Sexual orientation is a fundamental characteristic of a human being.”; “marriage is widely regarded as the definitive expression of love and commitment in the United States.”; “permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”, etc. It is exceedingly unlikely that any appellate judge or Supreme Court Justice would feel compelled to defer to these factual judgments. That’s just not how constitutional empiricism seems to work. Nor, in my view, should it work that way. Why would Judge Walker have any special expertise at figuring out these tough questions about the social consequences of legal change? And stepping back, the ordinary case for deference to factual findings is built around two intuitions: (1) that the trial judge can smell liars; and (2) that the appellate court doesn’t have the time to review everything, so it should focus on legal issues apparent on the cold record. The first intuition has always struck me as pretty weak, and the second obviously loses force in big cases.

I would add two points:

1) If the standard of review ends up being “rational basis,” the factual record is largely beside the point. Here’s how Justice Kennedy described the role of the factual record in conducting rational basis review in Heller v. Doe, 509 U.S. 312 (1993), with citations omitted and emphasis added:

A State . . . has no obligation to produce evidence to sustain the rationality of a statutory classification. “[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” A statute is presumed constitutional, , and “[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it,” whether or not the basis has a foundation in the record. Finally, courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it “ ‘is not made with mathematical nicety or because in practice it results in some inequality.’ “The problems of government are practical ones and may justify, if they do not require, rough accommodations-illogical, it may be, and unscientific.”

Given that the rational basis standard “is not subject to courtroom factfinding,” the Court isn’t likely to pay much attention to Judge Walker’s courtroom factfinding if the law is subject only to rational basis scrutiny. It’s a different story if some heightened scrutiny applies — at that point the factual record really matters.

2) Several of the key factual findings in Judge Walker’s opinion are in the form of predictions, not facts. For example, Judge Walker finds that “permitting same-sex couples to marry will not . . . otherwise affect the stability of opposite-sex marriages.” But real predictions have confidence levels. You might think you’re going to get an “A” on an exam next week, but that’s not a fact. It’s just a prediction, and there’s a hidden confidence level: Maybe there’s an 80% chance you’ll get that grade, or a 60% chance. Judge Walker’s prediction-facts have no confidence levels, however. He doesn’t say that there is an 87% chance that permitting same-sex marriage will not affect the stability of opposite-sex marriages. He says that it is now a fact — with 100% certainty — that that will happen.

Appellate judges will naturally discount, if not entirely ignore, efforts to create false certainty out of unknowns by stating that they are facts. To pick an extreme example, imagine Judge Walker made a factual finding that “the defendant’s position that Prop 8 is unconstitutional is incorrect.” If appellate courts have to defer to everything a District Judge labels a fact, then would that mean the appellate courts have to defer to this judgment? If so, that would make the constitutionality of same-sex marriage entirely up to the discretion of the District Court Judge. The judge could make his decision unreviewable — either way — by presenting his legal conclusion as a fact. And what if two District Court judges disagree on the factual findings? What is the Supreme Court supposed to do to reconcile opposite conclusions? For such reasons, the fact section of Judge Walker’s opinion is likely to matter a lot less than it would normally matter in appellate litigation.