As you, the reader of a legal blog, undoubtedly know, earlier today Judge Walker released his opinion in Perry v. Schwarzenegger, which everyone knows as the Proposition 8 suit. (Back when it was filed, I wrote about why the suit was against Schwarzenegger, rather that against the State of California.)

As you also know, the plaintiff won:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Most likely, you either agree with the opinion or you don’t.

Kevin Drum, one of the political bloggers at Mother Jones, agrees with the opinion but worries about its staying power:

But as we all know, his ruling per se doesn’t matter. It will be appealed to the Ninth Circuit Court shortly, and after that it’s sure to be appealed to the Supreme Court. What’s more, a stay is likely in the meantime. So the question is, how compelling is his opinion? Is it likely to sway members of either the circuit or supreme courts?

I am nothing close to a legal expert, so feel free to ignore what follows even more than usual. But I have a feeling the answer is no. The problem is that Walker’s ruling relies very, very heavily on the factual evidence provided by each side’s expert witnesses.

The very reliance on facts is exactly why the opinion is more likely to sway members of the appellate courts.

As general matter, on appeal "purely legal questions, including jurisdictional questions, are reviewed de novo." Tampubolon v. Holder, 598 F. 3d 521 (9th Cir. 2010). The Circuit Court is duty-bound to re-examine, on its own, every legal decision made by the District Court.

Thus, although it’s always nice for the winner in the District Court to sail into the Circuit Court with a persuasive legal analysis behind them, it’s not essential. Indeed, Judge Walker’s legal conclusions are practically unnecessary, since the appellate court will no doubt be inundated by amicus briefs from many of the most prominent legal organizations in the country, briefs raising every conceivable angle on the case.

Circuit Court Judges and Supreme Court Justices are also more than happy to interject their own legal ideas into cases, particularly in cases as important and high-profile as this one.

I’d venture to say the factual record is more important in preserving Judge Walker’s holding, since his factual findings are protected on appeal: "We [the Circuit Court] review for clear error the district court’s factual findings in connection with a bench trial." U.S. v. Brobst, 558 F. 3d 982 (2009)(emphasis added). "For clear error" is a far cry from "de novo," and the limitation is doubly important since "We [the Circuit Court] may affirm on any grounds supported by the record." Corales v. Bennett, 567 F. 3d 554 (9th Cir. 2009)(emphasis added).

Thus, while the Circuit Courts and Supreme Court can and will do whatever they want on the law, their hand is not nearly as free on the facts. If Judge Walker’s goal was to draft the opinion in the manner most likely to survive appeal, his best bet was to make his decision light on the law and heavy on the facts.

[UPDATE: Dave Hoffman and Orin Kerr both question the significance of the factual findings. On the one hand, they are correct that neither the circuit court nor the Supreme Court is inherently bound by every last factual judgment made by a single district court judge. They remain free to speculate wildly about the history of marriage and the nature of sexuality, and free to completely disregard the facts and instead make up a ruling based entirely upon imagined facts.

On the other hand, they were free to do that anyway. The presence of Judge Walker’s factual findings, however, puts the burden upon those appellate courts — as a matter of institutional legitimacy — to explain their reasoning, including by describing, at least in general, what facts underlie that reasoning. That is to say, they can’t simply reverse Judge Walk’s opinion by claiming he was wrong on the law; they need to explain, at least briefly, why they feel he was also wrong on the facts.

That may be very hard to do for some of these judges, such as Justice Kennedy. Justice Kennedy, for example, has already explained why he feels the government has no legitimate interest in the persecution of gays:

The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume 579*579 to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Lawrence v. Texas, 539 US 558 (2003). If he wants to reach a different conclusion in Perry, he will feel compelled to explain why — and the attempt to do so may convince him otherwise.