Wiliams Institute Study Supports Inclusive ENDA

"When heterosexism strikes, strike back"

23 September 2009

The U.S. House of Representatives held hearings today on H.R. 3017, the Employment Non-Discrimination Act of 2009 (ENDA), which would prohibit employment discrimination on the basis of sexual orientation and/or gender identity.  Brad Sears, Executive Director of the Williams Institute, a national research center on sexual orientation and gender identity law and public policy at UCLA School of Law, testified in support of the bill.

Sears summarized the findings of a twelve-month research study conducted by the Williams Institute, which found widespread and enduring discrimination on the basis of sexual orientation and on the basis of gender identity by state and local government as well as in the private sector.  These findings support the conclusion that Congress has the power to enact ENDA under Section 5 of the 14th Amendment, which grants Congress the authority (among other things) to enforce the guarantees of that Amendment's Equal Protection Clause.

Congress would assuredly have the constitutional authority to adopt ENDA under its power to regulate interstate commerce.  Congress's Section 5 power is important, however, because it (and not the commerce power) would allow Congress to authorize private individuals who have been discriminated against by state governments to sue those governments for money damages to compensate them.  Without that authority, states would be able to assert "sovereign immunity" as a shield against monetary awards under current constitutional law.

If you have not already done so, please let your Representative know that you want her or him to stand up for fundamental fairness and support the right of Americans of every sexual orientation and gender identity to work free of invidious discrimination.  You can reach your Representative by dialing 202-224-3121 and giving the operator your zip code; ask her or him to support and to sponsor ENDA, H.R. 3017.


Disclosure:  I am a Visiting Scholar at the Williams Institute this semester, as I was in Spring 2003, and I remain a member of the Institute's Faculty Advisory Committee; however, I was not involved in the preparation of this testimony or report.

Posted by Cruz at 2:44 PM | Link | 0 comments

Categories: equal protection employment discrimination sexual orientation gender identity Fourteenth Amendment Section 5 sovereign immunity Williams Institute

Marriage Equality Comes to Iowa

"What a Difference a Day Makes"

03 April 2009

Occasionally citing the May 2008 California Supreme Court decision in In re Marriage Cases, the Iowa Supreme Court today unanimously held that the state constitution's guarantee of equal protection requires the state to allow same-sex couples to marry civilly.  Adopting a practical analysis, the Court determined that the marriage exclusion discriminated on the basis of sexual orientation.  Following the Connecticut Supreme Court in Kerrigan v. Commissioner of Public Health (after independent analysis), the Iowa Supreme Court held that discrimination against gay men and lesbians must be tested by a less deferential form of judicial review than applies in run of the mill cases of legislative distinctions.  Because the Court concluded that the marriage ban could not pass intermediate scrutiny, the Court didn't need to decide whether sexual orientation discrimination should receive the least deferential form of review, strict scrutiny.

The Court's decision goes into effect in 21 days [**unless the losers file a petition for rehearing, which could somewhat delay things**-edit].  It's opinion is here, though this morning the Court's web site is extremely busy.

Posted by Cruz at 7:29 AM | Link | 0 comments

Categories: equal protection marriage Iowa Supreme Court sexual orientation

"Mama take just a little bit from my heart"

Justice Kennard and "small" deviations from equality

05 March 2009

The California Supreme Court held oral arguments today in the litigation challenging Proposition 8, which the voters approved to change the state constitution to strip away the right to marry from same-sex couples.  It’s always perilous to read too much into the Justices’ questions.  But one line of questioning by Justice Joyce Kennard suggests a possible misapprehension about the nature of the arguments against the validity of Proposition 8, which I hope does not ultimately lead her astray.  Here’s my reasoning.  (All quotations are from my notes from watching the webcast of the oral arguments and have not been verified against the archived footage.)

Shannon Minter, Legal Director of the National Center for Lesbian Rights, argued first on behalf of the challengers of Prop 8.   Justice Kennard asked Mr. Minter:  “Is it your argument in this proceeding that the passage of Proposition 8 also took away in addition to the label of ‘marriage’ the core of the substantive rights of marriage that the majority of this court outlined in the marriage cases last year?  Continuing a similar theme,  Justice Kennard questioned Raymond Marshall who argued for a variety of civil rights groups opposed to Proposition 8:  “Given the precedential values that have been decided by this Court in previous decisions, how do you distinguish them here where the people left in place most of what this Court declared to be proper under the California constitution?”  And: “What about the argument that what we are dealing with in this particular case is a narrow exception to equal protection, by denying same-sex couples the label of ‘marriage,’ but leaving intact the substantive rights this Court established in the marriage cases last year? ….  You haven’t eliminated or taken away equal protection.”  And when Mr. Minter stepped up for rebuttal, Justice Kennard incredulously asked:  “Is it still your view that the sky has fallen in as a result of Proposition 8 and gays and lesbians are left with nothing?”

One possible implication of these lines of questioning would be to suggest that Proposition 8 isn’t a revision if it only deprives same-sex couples of part of the right to marry and doesn’t wholly strip gay and lesbian people of all equal protection rights.  But those positions are not being argued by any of the parties or amici in the case, and for good reason.  Let me take them in order.

First, it would be a colossally bad move for the Court to embrace a standard that said a proposed constitutional change would count as a revision if but only if it takes away all benefit a group of people might get from a right but not if it takes away only a portion.  Were that the rule, initiative drafters could always take care to preserve some application of the right they want to strip from a group and thereby bring it within the scope of the initiative-amendment power, rather than having to pursue the more deliberative and cumbersome revision process (which requires supermajority votes in each house of the state legislature).  An all-or-nothing rule of this sort would be readily evaded and would defeat the point of the California constitution’s provision of different ways to make two different kinds of changes.

The argument could not really be salvaged by adopting a standard that says, a proposed constitutional change counts as an amendment (adoptable via initiative) if it takes away only a little bit of a constitutional right, but not if it takes away too much of the right.  Balancing tests may be inevitable in constitutional law, but if the California Supreme Court thinks the doctrinal rules they adopt ought to give at least some guidance to voters and legislators, something less mushy than “I know it when I see it” (which was former U.S. Supreme Court Justice Potter Stewart’s unhelpful characterization of “obscenity,” a content-free standard that Justice Carlos Moreno quoted in today’s arguments).

Second, the observation that gay and lesbian people still enjoy some equal protection rights after Proposition 8 is not really responsive to the challengers’ argument.  They contend that Prop 8 should be deemed a revision to the state constitution that could only originate in the legislature, not via petition-initiative the way Prop 8 was adopted.  The reason they offer is that it strips away not just any right but a right that is “fundamental” in our state constitution (here, the right to marry), and that it takes that right away not just from any group but from a group (here, lesbigay persons) defined by a suspect classification (here, sexual orientation).  By doing that, Prop 8 doubly undermines the historic role of the court and denies it the ability to enforce the principles of equality that are at the very foundation of the California constitution.

The challengers are not claiming that gay and lesbian people would currently enjoy no constitutional equality rights if Prop 8 is part of the constitution.  If they were making that hyperbolic claim, then the assumptions of Kennard’s questions would be adequate rejoinder to the challengers’ argument.

The challenge to Proposition 8 instead rests on the very sensible contention that, if Proposition 8 is a permissible exercise of the amendment power, then the Court would have to include that any law which took away any right from any group of people would also have to be permissible, and what that means is that any possible equal protection holding of the state supreme court could be overruled by a bare majority of voters (after a petition got signatures from a mere 8% of those who voted in the last election for governor).  And, as I believe Therese Stewart, arguing for the City and County of San Francisco put it, “a guarantee of equal protection that is changeable by a majority is no guarantee at all.

To understand why, first note that typically a “fundamental right” is the kind of right most carefully protected by the judiciary from governmental infringement.  Last year the California Supreme Court held that the right to marry was fundamental.  And the Court was clearly and explicitly talking about the right to enter the institution called “marriage” that different-sex couples were allowed to enter.  Prop 8 takes that right away just from same-sex couples.  Since fundamental rights are the most judicially protected rights, no other right would have a stronger claim on the Court.  So, if a majority can do it with the right to marry, it can do it with any right.

Next bear in mind that discrimination against a group defined by a suspect classification (like a racial minority, or women, or lesbigay people) is subject to more powerful judicial scrutiny than any other form of discrimination.  So if it’s okay to take away a fundamental right from such a group, as Prop 8 attempts, then a mere amendment passed by a bare majority of the electorate could take away a fundamental right from any group.

What the challengers are arguing, therefore, is that it’s not just the dignitary harm that Proposition 8 inflicts upon same-sex couples and their families that renders Prop 8 a revision.  Rather, it is the principle that a decision upholding Prop 8 would have to embody:  Any right may be taken away from any group by a mere amendment passed by a bare majority of voters, with no filter of legislative deliberation required (as would be the case for a proposed constitutional revision).

Dean Kenneth Starr, arguing for the official proponents of Proposition 8, did not shrink from that conclusion.  He made clear that he thought there was no limit in the California constitution to what voters could do to strip away any rights from any group.  That might be regrettable, but it’s just the constitution we have, he basically said.

Now, he did offer the Justices reassurance by arguing that the “backstop” or “failsafe” to prevent horrid occurrences from happening was the U.S. Constitution.  But this argument is in tension with the long-held position that the rights guarantees of the California constitution are independent of the federal constitution.  Our rights under the state constitution are to be interpreted as forces of their own, not dependent upon the federal constitution or the federal government.  The point of our California constitution is to secure the blessings of liberty, which include the freedom to marry, as counsel for the challengers observed during argument today.

Let us hope that at least four members of the California Supreme Court remember that and do not shy away from their duty to preserve the foundational commitment to equality enshrined throughout the California Constitution.   As Ms. Stewart reminded the Court, democracy can only lay claim to legitimacy if it embraces the commitment to equal protection.  Proposition 8 attempts to erode that commitment, taking away the most judicially protected kind of right from a group subject to the highest level of judicial protection.  The fact that it leaves other rights or other aspects of a right intact – for now – should not be enough to obscure the pernicious way it says to the Court, “no matter how strong your constitutional ruling, a bare majority can wipe it out with the most casual kind of constitutional change.”

Posted by Cruz at 11:18 PM | Link | 0 comments

Categories: equal protection Prop 8 California Supreme Court sexual orientation

"Marry Me a Little"

GLAD sues challenging DOMA

03 March 2009

Gay and Lesbian Advocates and Defenders (GLAD) has filed a lawsuit in federal district court challenging the interpretation and constitutionality of the federal Defense of Marriage Act (DOMA) as applied to the various plaintiffs.

The complaint asserts that Section 3 of DOMA, which refuses to recognize any marriage of a same-sex couple even if lawfully entered in some U.S. state or foreign country, violates the equal protection obligations the U.S. Constitution places on the federal government.  The suit is not challenging DOMA or even Section 3 on its face, but only as applied to the plaintiffs to deny them equal benefits under "laws governing benefits for federal employees and retirees, the Internal Revenue Code, the Social Security laws and the laws and regulations governing issuance of passports."  In some cases, the suit alleges, the laws have been interpreted in ways that DOMA does not requirel; where DOMA does require the discrimination at issue, it is unconstitutional, according to the lawsuit.

The suit does not yet specify whether or not the plaintiffs are arguing that the constitutionality of DOMA must be assessed under what the court's term "strict scrutiny," the least deferential form of judicial review.  It could be read as arguing that these applications of DOMA do not even have a "rational basis," the most deferential form of review requiring only that challenged laws have a "rational relationship" to "a legitimate governmental interest."  In particular, the various counts of the complaint conclude that DOMA "creates a classification that treats similarly-situated individuals differently without
justification," and it maintains that Section 3 of DOMA "is motivated by disapproval of gay men
and lesbians and their relationships, an illegitimate federal interest."  (Some of the asserted federal interests are rejected as illegitimate, and others are said either to restate the purpose to discriminate without explaining it or actually to be "subverted" by DOMA.)

It will be interesting to see how this litigation unfolds.  Perhaps it will be the stimulus needed for Congress to repeal at least the federal definition section of DOMA, which as both the complaint in this lawsuit and Bob Barr in recent public pronouncements have concluded, undermines federalism by arrogating to the federal government the power to determine what is a valid marriage outside the immigration and naturalization context.

GLAD is the legal rights organization that litigated and won the Massachusetts case that recognized same-sex couples' right to marry under that state's constitution.

Posted by Cruz at 8:45 AM | Link | 0 comments

Categories: equal protection marriage recognition marriage Defense of Marriage Act (DOMA)

Assembly Judiciary Committee Embraces Revision Argument

Supports H.R. 5, Rejects Proposition 8

17 February 2009

Ron Buckmire, who blogs under The Mad Professah Lectures, has reported that the California Assembly Judiciary Committee has just voted 7-3 ("all Republicans voting no") to approve House Resolution 5, which condemns Proposition 8 as an improper attempted revision of the California Constitution that failed to follow the proper procedures.  While H.R. 5 has no binding legal force, if the House were to adopt it, this would further demonstrate the state legislature's commitment to constitutional equality principles and could signal that a judicial decision invalidating Proposition 8 would not be a very countermajoritarian ruling.

Posted by Cruz at 1:50 PM | Link | 0 comments

Categories: equal protection Prop 8 California Supreme Court

Marriage & Equality Rights to Return to California Supreme Court

Court grants review in challenges to Prop 8

19 November 2008

As widely expected, the California Supreme Court issued an order (here) indicating that it would decide whether Prop 8 is invalid as a revision of the state constitution.  In addition, the court will determine whether it is invalid as a violation of separation of powers principles (an argument made in the petition filed by Gloria Allred) and whether or not Prop 8 has any effect on same-sex couples married before the election.  Also no huge surprise, the court denied the requests for a preliminary stay of Prop 8.  The court has set an expedited schedule for briefing, which will be completed in January.

Posted by Cruz at 2:45 PM | Link | 0 comments

Categories: equal protection Prop 8 California Supreme Court marriage recognition marriage

Connecticut Constitution Protects Same-Sex Couples' Right to Marry

"Ding dong! the bells are gonna chime"

10 October 2008

The Connecticut Supreme Court held today that it violated the equal protection rights of gay and lesbian persons under the Connecticut constitution to deny them the freedom to marry civilly.  The Court's opinion in Kerrigan v. Commissioner of Public Health rejected the state's argument that the marriage exclusion was constitutional because Connecticut offers same-sex couples "civil unions" with the same state-controlled legal incidents of marriage.  At least when such an exclusion "singles out a group that has historically been the object of scorn, intolerance, ridicule or worse," even "symbolic or intangible" differential treatment is a constitutional harm Connecticut courts may address.  And because marriage "is an institution of transcendent historical, cultural and social significance," whereas the new vintage status of civil unions (created by the Connecticut legislature during this lawsuit) most surely is not," the two legal regimes are not equal in a way insulating them from judicial review, the 4-3 majority ruled.

The Connecticut majority held that the marriage exclusion was a "quasi-suspect classification," which means that the state had to produce "an exceedingly persuasive justification" for its discrimination, not one that is barely rational.  (This intermediate scrutiny standard is more deferential than the strict scrutiny used by the California Supreme Court in In Re Marriage Cases this past May.)  The court rejected the state's claim that promoting uniformity and consistency with other states' and countries' marriage laws was a sufficiently important purpose to satisfy intermediate scrutiny.  And it also rejected the argument that preserving the "traditional" definition of marriage as limited to relationships between one man and one woman could justify the statute.

And so the court ordered the case be sent back down to grant the plaintiffs a declaration that the exclusion of same-sex couples from civil marriage violated the Connecticut constitution and an injunction requiring state officials to let them marry.

Now, the question remains whether California will remain with Massachusetts and Connecticut as the only states in the union to allow same-sex couples to marry, or whether the voters will approve Proposition 8 on November 4 and eliminate the right of same-sex couples to marry in California.

Posted by Cruz at 12:08 PM | Link | 0 comments

Categories: equal protection sexual orientation discrimination Prop 8 marriage Connecticut Supreme Court

Arriverderci "Persons, Not Groups"

09 June 2008

The U.S. Supreme Court has held in Anup Engquist v. Oregon Department of Agriculture (June 9, 2008) that the Equal Protection Clause of the Constitution does not even apply to claims by government employees that the government has treated just one employee unequally and irrationally (as opposed, for example to discriminating against a larger class of employees, such as those of a particular race or sex).  The majority opinion by Chief Justice Roberts (joined by Justices Scalia, Kennedy, Thomas, Breyer, and Alito) purports to adhere to past pronouncements that the Equal Protection Clause protects "persons, not groups" and confers an individual right.  The majority Justices thus carved out an exception from the general equal protection principle, recognized by the Court in Village of Willowbrook v. Olech, that government violates equal protection where it "intentionally treat[s an individual] differently from others similarly situated and ... there is no rational basis for the difference in treatment."

The Court's ruling in Engquist that equal protection does not even apply to such "class of one" claims in the government employment setting is driven by a worry about the prospect of every government employee grievance spawning potential constitutional litigation against employers.  Justice Stevens's dissent (joined by Justices Souter and Ginsburg) argues forcefully that experience shows no need to create such an ad hoc exemption from equal protection principles, certainly not as broad a rule as stated in the majority opinion.  And if the majority felt so strongly about the policy basis for its holding, perhaps it would have been more prudent for them to attribute it to the federal law authorizing suits for constitutional violations, Title 42 of the United States Code, section 1983, which could be changed by a Congress that disagreed with its worried, rather than to distort its interpretation of the Constitution itself (which the majority reaffirms binds government even when government acts as an employer), which is beyond legislative correction without satisfaction of the supermajority requirements of constitutional amendment.

Posted by Cruz at 8:17 AM | Link | 0 comments

Categories: equal protection U.S. Supreme Court employment discrimination

Don't Ask, Perhaps Tell?

24 May 2008

The United States Court of Appeals for the Ninth Circuit revived a lawsuit brought by the ACLU of Washington (state) challenging the constitutionality of the “Don’t Ask, Don’t Tell” policy (DADT) excluding openly lesbian, gay, or bisexual (collectively, “lesbigay”) persons from the U.S. military.  The district court had dismissed the suit by the much decorated Major Witt challenging the constitutionality of her suspension from duty as an Air Force reservist nurse because of her relationship with a civilian woman.  In Margaret Witt v. Department of the Air Force (9th Cir. May 21, 2008)  (opinion also here), a three-judge panel held that the Air Force should be required on remand to satisfy a heightened form of scrutiny under the Due Process Clause of the Fifth Amendment.  A 2-1 majority regarded the panel as bound by earlier Ninth Circuit precedent holding that DADT does not violate the Equal Protection Clause under what the court held was the applicable rational basis review.

Witt is important because it concludes that an earlier Ninth Circuit decision upholding a precursor to the DADT policy under heightened scrutiny under the Due Process Clause was “no longer good law” in light of the Supreme Court’s decision in Lawrence v. Texas (2003).  In particular, the Ninth Circuit panel majority held that “Lawrence applied something more than traditional rational basis review.”  (It rejected the contrary interpretation adopted by Lofton v. Secretary of Department of Children & Family Services, 358 F.3rd 804 (11th Cir. 2004), concluding that “the Eleventh Circuit failed to appreciaate both the liberty interest recognized by Lawrence and the heightened-scrutiny balancing employed by Lawrence.”)   As a consequence, Witt held, “when the government attempts to intrude upon the personal and private lives of homosexuals [sic], in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interests, the intrusion must significantly further that interest, and the intrusion must be necessary to further that int.  In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest.”

Unfortunately, the Ninth Circuit majority also held “that this heightened scrutiny analysis is as-applied rather than facial.”  As a result, the trial court on remand could determine that application of DADT to Major Witt violated her substantive due process rights, but may not be free to hold the policy facially unconstitutional.

Judge Canby concurred in part and dissented part.  In his view, the court did not go far enough.  It should have held that Lawrence undermined both the Ninth Circuit’s due process cases and its equal protection cases upholding the military exclusion of lesbigay persons.  After all, when the Ninth Circuit Court of Appeals originally held that rational basis review was the proper standard for challenges to the military exclusion, the court relied on the Supreme Court’s decision in Bowers v. Hardwick (1986) – which Lawrence v. Texas overruled in 1993!  Moreover, Judge Canby argued, consistently with his longstanding view (see, e.g., High Tech Gays v. DISCO, 909 F.2d at 376-80 (9th Cir. 1990) (Canby, J., dissenting from denial of rehearing en banc), that strict scrutiny should be the governing standard both under the Fifth Amendment’s Due Process Clause and under the equal protection guarantee embodied in that clause.

Even though the Ninth Circuit panel did not embrace Judge Canby’s persuasive opinion, its recognition that DADT intrudes upon the constitutionally protected liberty of lesbigay persons in troublesome ways is encouraging, as is its holding that Major Witt should have her day in court to challenge her dismissal.

Posted by Cruz at 12:59 PM | Link | 0 comments

Categories: equal protection Don't Ask Don't Tell sexual orientation discrimination substantive due process