There Are Facts, and Then There Are Constitutional Facts

Reading some of the commentary about Judge Walker’s decision on Prop 8, you get the sense that the good Judge has fortified his analysis with a factual record. Marc Ambinder, a new setter of the conventional wisdom, lists several such facts and exclaims: “Remember, these are the FACTS that Walker has determined from the testimony and evidence. These facts will serve as the grounding for the legal arguments yet to come.” This view seems to be based on the traditional rule that appellate courts won’t disturb trial court factual findings without pretty good reasons.

But there 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.

None of this commits me to any view on what Anthony Kennedy the Supreme Court will do in 2012 when it hears the case.  All I know is that constitutional facts are special.  Heck, isn’t that what Scott so vividly illustrated?

[Update:  Orin seems to agree.]

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16 Responses

  1. anon says:

    Well, two good reason that constitutional empiricism lacks the usual deference to trial judges. First, such judicial fact finding often runs contrary to the express, implied, or hypothetical factual predicates of legislators. Judge Walker finds that permitting same sex marriage will not “affect the stability of opposite-sex marriages.” Plenty of California voters likely believed otherwise. And the truth is that nobody really knows. If rational basis means anything, it means that in what is truthfully a vacuum of factual knowledge, courts should defer to legislative guesses.

    Second, constitutional fact findings have collateral effects beyond the parties to the dispute. Judge Walker has not only declared same-sex marriage for a single couple in California, he has mandated every state in the nation to grant same-sex marriage. Ordinary notions of due process would indicate that Texas should not be stuck with the factual findings of a California district judge.

    To put it another way, suppose that a really conservative trial judge somewhere holds a big trial and concludes based on “expert testimony” that same-sex marriage will hopelessly ruin the lives of children, will stifle procreation, and bring the end of civilization as we know it. To make this realistic, I am pretty sure one can find some conservative “experts” to testify on cue, so all that is needed is a motivated judge. The judge then rules that same-sex marriage is constitutionally impermissible. Would people like Marc Ambinder still say that such factual findings are sacred?

  2. Matt says:

    It’s too bad your mythically trial at the end can’t happen.
    I would love to see the testimony of the opposing expert witnesses at trial.
    It’s unfortunate that there is no true open forum for the competing “facts”.

  3. anon says:

    Matt, if you had said to anyone 20, or even 10 years ago, that a federal district court would hold this trial and make this ruling, you would have received a response: “can’t happen.” You are being awfully short-sighted about the swings of the political pendulum.

  4. Logan says:

    Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence. ~ John Adams

  5. Larry Rosenthal says:

    In my view, under the approach to appellate review sketched out in Ornelas v. United States, 517 U.S. 690 (1996), it seems to me that Judge Walker’s findings about whether there was an adequate governmental interest underlying Proposition 8 involve the kind of mixed question of law and fact that should be reviewed independently on appeal.

    Larry Rosenthal
    Chapman University School of Law

  6. Jackson Pollack says:

    If rational basis means anything, it means that in what is truthfully a vacuum of factual knowledge, courts should defer to legislative guesses.

    I think that is a major flaw of the opinion.

  7. Vladimir says:


    Constitutional fact doctrine is a very difficult area of the law. I don’t think you can say that just because something is a constitutional fact, it gets less deferential review. Henry Monaghan has an important, and complex, article on it from the 80s.

  8. Prof. Hoffman’s post was favorably linked to at Bench Memos over at National Review Online.

    …I hope this doesn’t destroy his liberal street cred.

  9. John Doe says:

    Judge Walker has not only declared same-sex marriage for a single couple in California, he has mandated every state in the nation to grant same-sex marriage.

    Just to be clear, Judge Walker has not done and cannot conceivably do any such thing. His decision is binding only on the parties, and even another federal district judge in the same district wouldn’t be bound to follow his opinion.

  10. dave hoffman says:

    MC – I don’t care much about street cred, whatever it means, but I do wish Whelan hadn’t suggested that I thought Walker’s factual conclusions were tendentious. I said and think no such thing. Rather, my view that the opinion will get little deference rests on the unique kind of (constitutionally-related) fact finding involved.

  11. anon says:

    John Doe: OK, let me rephrase. If the Supreme Court grants deference to Judge Walker’s “facts,” then IT will be mandating same-sex marriage for every state in the nation–based on the factual findings of a single California district judge. And one wonders what the Supreme Court is to do if the same issue arises in different district courts that reach contradictory “factual” findings (as my hypothetical suggests is entirely possible).

    In fact, all the conservative movement needs to do is file the very same lawsuit in a really conservative district — hey if Ted Olson can find a plaintiff surely Protect Marriage can too — and then deliberately spike the case (as the CA state government has done). I guarantee that a district judge would produce the nice list of contradictory facts.

  12. R. Kevin Hill says:

    Well, now wait a gol-durned minute. The factual record here is meant to satisfy the needs of rational-basis-review-with-teeth, and in cases like Cleyburne, you had to have a factual record, because toothy review involves balancing.

    So what plausibly conceivable facts would arise in another jurisdiction to change the result? That people’s propensity to procreate is totally different from state to state? That gays are affected by the unavailability of marriage in a completely different ways from state to state? It’s all very well and good to say that if you are balancing based on facts, what the facts are matter. But did the Court say, for example, in Brown (yes, not RBR I know) that it looks pretty bad for kids in segregated schools *here*, but for all we know, it’s a very different experience elsewhere? Why on earth would one *expect* it to be different? Anyway, *what* facts? The only facts there are is that gays want to marry and (some) straights don’t want them to. The silence attendant upon requests for *more* facts is deafening. Everywhere.

    So in the absence of any real reason to think that there are any meaningful differences, I can’t see what the obstacle would be to a broad holding. So I think that takes us back to status v. conduct, etc. which is more or less already settled in Romer implicitly. Stare decisis.

    The only factual difference I can imagine would be states which possess civil unions but not marriage, vs. states that do not. But that has no bearing on the dignitary interest involved. Would it be compatible with Va. v. Loving if interracial couples were forbidden to marry, but allowed to get a special “mulatto-lovers certificate” which happens to have exactly the same legal effect as marriage?

  13. anon says:

    Kevin Hill, nobody expects the real facts to be different; but nobody knows what the real facts actually are (since the “facts” are largely about what will happen in the future when same sex marriage is enacted by judicial fiat). The question is whether one should allow a single judge in the nation’s most liberal district to “find” such facts and thereby make them gospel for the whole country.

    To take a more simple example, Judge Walker might as well find as a “fact” that the Dow Jones will go up tomorrow. Saying so doesn’t make it true.

  14. akryan says:

    anon (comment 13) your “simple example” isn’t at all a plausible analogy. No judge anywhere as would find any sort of factual basis in predicting the daily movement of the Dow. Read the opinion, the findings of fact that Walker puts forward are much more historically and empirically based than you assume. While I agree with the author that it is unlikely that there won’t be universal agreement with the finding of fact of the district judge, Hoffman is misleading in that he indicates that Walker just pulled these things out of thin air or his own personal beliefs. This was a 136 page decision for goodness sakes. Furthermore the ruling for the most part didn’t dwell on future consequences (it did touch on the fact that states that do allow gay marriage haven’t descended into anarchy) as much as due process and equal protection for gays. Basically the ruling came down to the fact that today gays in CA are entitled to a “separate but equal” (my words not his) domestic partnership but that just isn’t as good as marriage (for a number of reasons) and that’s not fair. What I think what it will come down to is whether or not SCOTUS rules that any person is actually “gay”. If the court rules that the gov’t has no obligation to recognize personal sexual behavior then Prop 8 stands. If they rule that Gays are a distinct minority, unfairly targeted, then Prop 8 falls.

  15. dave hoffman says:

    AKyran – wait, don’t drag me into this! I didn’t say (or think) that “Walker just pulled these things out of thin air or his own personal beliefs.” I think he engaged in fact finding through an adversary process. My point is that fact finding in cases like these – where the facts bear on a constitutional claim – is a special process that appellate courts don’t view in quite the same way as fact finding in a non constitutional case. Vladamir is right that it’s a complex topic, and I recommend to you the book I linked to in the post for a very thorough and illuminating discussion.

  16. peter says:

    Dave – thanks for the tip to the Faigman book, which I have just ordered. Perhaps Ornelas (mentioned by Larry Rosenthal) is among the cases examined there; however, it’s not evident that the kinds of facts under discussion here (as summarized by Dave in the initial post) are equivalent to the facts for which independent appellate review was deemed appropriate in Ornelas: “We think independent appellate review of . . . ultimate determinations of reasonable suspicion and probable cause is consistent with the position we have taken in past cases.” RP & PC are legal characterizations based on a collection of party-led facts. The party-led facts giving rise to those characterizations were not thought to be open to i.a.r. in Ornelas. Findings of fact such as “Sexual orientation is a fundamental characteristic of a human being” are not obviously analogous to determinations of RP & PC; Judge Walker’s findings of fact strike me as being somewhere between party-led facts and “ultimate determinations” according to constitutionally articulated standards, or standards (e.g., “deeply rooted in our nation’s history and traditions”) that the court has magically derived from constitutional language. However, perhaps once we’ve gotten past the intial stage of party-led facts in the evidentiary record, then all characterizing, whether intermediate, “ultimate,” or anything else, is subject to i.a.r. Which is to say — even if Ornelas isn’t precisely the right analogy, there may be other cases showing that i.a.r. is often conducted in this context.