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Prop 8 Findings Of Fact

Crossposted from <a href=”www.yesmeansyesblog.wordpress.com/2010/08/05/prop-8-findings-of-fact/”>Yes Means Yes Blog</a>

There is no shortage of discussion of U.S. District Judge Vaughn Walker’s Prop 8 decision in Perry v. Schwarzenegger yesterday, and no shortage of analysis, so I won’t duplicate others’ efforts. What I will do is provide the key findings of fact, and explain why that’s important. Appellate courts — the Ninth Circuit and the Supreme Court — are supposed to say what the law is, and how it applies to particular facts. The District Court is supposed to figure out what the facts are, and do the actual applying. That’s only slightly oversimplified.

In the rush to read Judge Walker’s reasoning, most commentators have not focused on the facts. But if the Circuit or the Supremes want to change what Walker said about the law, all they do is say, “no, that’s not the law.” That’s what’s called a de novo review; they owe the lower court no deference. Facts are different. There was a trial. Usually the trier of fact is a jury, but sometimes as here, it’s a judge. The judge finds the facts. Those findings of fact are supposed to get a more deferrential review. The judge below actually heard the testimony and had the full record, so hers or in this case his in the view from the playing field. That’s not to say that appellate courts never find ways to change the factual record, but the facts have a staying power that ...

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