Most of yesterday’s oral arguments in the California Proposition 8 case focused on the trial court’s findings of fact. The Supreme Court usually avoids those … for good reason. (More)

In oral arguments on Hollingsworth v. Perry yesterday, the Justices grilled the attorneys on several issues of law. Those included whether Prop 8 advocates had legal standing to bring the original case, what standard of legal review should apply for marriage equality cases, and whether the equal protection argument should apply only to states like California that allow civil unions but not full marriage equality.

Each of those questions is what lawyers call a question of law: a legal principle to be applied in judging specific facts. For example, the general principle of citizen standing is that citizens lack standing to challenge the non-enforcement of a statute unless they can prove an actual, personal injury – rather than a speculative or collective injury – caused by non-enforcement of the statute, that enforcement of the statute would remedy. In Hollingsworth the Justices questioned whether the Prop 8 advocates met that standard, and whether California had granted or could grant them standing based on some other legal principle.

Appellate courts routinely review such questions of law. Indeed, that is their primary purpose. As an appellate attorney, I often consulted with trial attorneys to write memorandums of law on complex issues. But trial judges also often decide questions of law quickly, in response to objections raised during testimony, with only minimal legal arguments. By contrast, appellate judges get detailed research in the parties’ briefs, and have clerks to review and refine that research, and have more experience parsing fine details of statutes and precedents.

Because appellate courts have equal or better resources on points of law, they review these questions de novo (“as new”). Simply, a trial court’s decisions of law carry no weight on appeal. The appellate court may decide a mistake of law was a “harmless error” – one that did not affect the outcome of the case – but the appellate court’s decision is still binding on that point of law in future cases.

But yesterday the Justices also repeatedly grilled the Prop 8 case attorneys on whether children raised in LGBT families thrive as well as those raised in opposite sex families. Prop 8 advocates offered no evidence to prove that at trial. Instead they argued that the case should be decided on the rational basis standard, and that Prop 8 opponents had the burden of proving the state had no rational basis to prohibit LGBT marriage. The Prop 8 opponents did present evidence that children in LGBT families thrive as well as those in opposite sex families, and the trial court concluded that was a fact:

The gender of a child’s parent is not a factor in a child’s adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.

The trial court decision also lists specific evidence, offered at trial, to support that conclusion.

Crucially, this is a question of fact, and not a question of law. Appellate courts usually avoid questions of fact, and for good reason. Trial courts hear the evidence first-hand as presented by the witnesses. They can see a witness’ body language and other cues that disappear in a written transcript. Moreover, the rule forces each party to present its best evidence at trial, where the other party has the opportunity to cross examine the witnesses and present other evidence in rebuttal.

Indeed appellate courts will only reverse a finding of fact if it is “clearly erroneous“:

In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly erroneous. [Emphasis added.]

Consider that italicized sentence as you read these comments from yesterday’s oral arguments:

JUSTICE SCALIA: I don’t know why you don’t mention some concrete things. If you redefine marriage to include same-sex couples, you must – you must permit adoption by same sex couples, and there’s – there’s considerable disagreement among – among sociologists as to what the consequences of raising a child in a – in a single-sex family, whether that is harmful to the child or not.
JUSTICE SCALIA: I don’t think we know the answer to that. Do you know the answer to that, whether it – whether it harms or helps the child.

MR. COOPER: No, Your Honor. And there’s – there’s –

JUSTICE SCALIA: But that’s a possible deleterious effect, isn’t it?
JUSTICE KENNEDY: I – I think there’s – there’s substantial – that there’s substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more.
JUSTICE ALITO: Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a – a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.

But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we – we are not – we do not have the ability to see the future.

Justice Scalia says “I don’t think we know the answer.” Justice Kennedy says “the sociological information is new.” Justice Alito says “we do not have the ability to see the future.”

In other words, the Justices argued, the trial court’s finding of fact that children of LGBT families thrive as well as those of opposite-sex families might be wrong. But that’s not the standard for reviewing a trial courts’ findings of fact.

Ignoring the trial court’s findings of fact would be a shockingly dangerous precedent. So would concluding those findings of fact were clearly erroneous when Prop 8 opponents presented not a shred of evidence to support their claim. Rather than encouraging each party to present its best evidence at trial – as the current standard does – this would encourage parties to present no evidence … and argue on appeal “I don’t think we know the answer” to key facts.

If that’s not judicial activism, what is?