Marriage Equality Defeated (for now) in Maine

Andrew Sullivan Misreads the Situation in the Pine Tree State

04 November 2009

A majority of voters in Maine yesterday chose to repeal the state’s law allowing same-sex couples to get married before it even went into effect, the Bangor Daily News reports here.  Following last year’s debacle of Proposition 8 stripping same-sex couples of the right to marry, Maine becomes the second state to have (almost) had equal  state-controlled rights for lesbigay persons only to lose them to the expression of fears or prejudice at the ballot box.

Thus Andrew Sullivan is wrong  to write in his blog that “in Maine, … gays do have equality but may now merely be denied the name.”  Unless he is writing about the abstract moral equality that underlies claims to human rights, or the abstract political equality of persons and citizens ostensibly protected by the U.S. Constitution, Sullivan is simply wrong to assert that  lesbigay people in Maine “have equality,” for several reasons.

First, same-sex couples in Maine are now relegated to state registered domestic partnerships but, unlike California’s domestic partnerships, these are decidely weaker than civil marriages.  The Maine Department of Health and Human Services, has even cautioned in bold print that "[i]t is important to remember that a registered domestic partnership is NOT the same as a marriage and does not entitle partners to rights other than those for which the registry was intended.  This registry is intended to allow individuals to have rights of inheritance as well as the rights to make decisions regarding disposal of their deceased partners remains."

Second, even if Maine attached all the same state-controlled rights, benefits, and obligations of civil marriage to domestic partnerships, the voters’ decision to deny marriage to same-sex couples imposes a legal burden on them that different-sex couples don’t face.  When a married couple goes to another state, there is a well established body of interstate marriage recognition law that they can appeal to.  Granted, the “Defense of Marriage Acts” (DOMAs)  adopted in many states make it harder to invoke this body of law successfully.  But same-sex couples in Maine now will face the additional hurdle of having also to argue that their non-marital status should count as a marriage for purposes of this body of law.  Likewise,  if Congress were to repeal the federal DOMA, which Barack Obama has said he supports, then married same-sex couples would automatically be governed by the estimated 1,138 federal laws that make marital status relevant; same-sex couples from Maine, however, would have additionally to try to argue that their domestic partnership, intentionally distinguished from marriage, should nonetheless be treated as a marriage for federal law purposes.

And third, Andrew Sullivan here seems to be making the same volte-face as the California Supreme Court did  this past spring when it upheld Proposition 8 , which stripped same-sex couples in California of the right to marry.  When Chief Justice Ronald George wrote for the Court in 2008 in striking down the marriage exclusion as violating the California Constitutionl, the Chief Justice penned eloquent passages about the importance of being included in the institution of “civil marriage” as such for the equality and dignity of lesbigay people.  Yet when he wrote for the same court a year later and upheld California’s pernicious ballot measure, his reasoning seemed to many to hold that this was a sufficiently non-fundamental change to the state constitution – even though it targeted a minority group defined by a suspect classification for deprivation of a fundamental right, the right to marry – because the “sole” effect of Prop 8 was to deny same-sex couples the “designation” of “marriage.”

Andrew Sullivan seemed to appreciate the stakes when the California Supreme Court first invalidated the discriminatory marriage exclusion.  In his blog mere days after the decision, he wrote:

“Equality is equality is equality. And a marriage license is a marriage license is a marriage license. Calling it something else for a few is a way of saying it is something else for the few, and something lesser for the few. There is no way around this, and in many ways, I am grateful that the California court put it so bluntly.”

Nothing has changed about the nature of equality, so it is not apparent to me why Sullivan seems to have changed his mind about equality in Maine.

Posted by Cruz at 7:33 AM | Link | 0 comments

Categories: Maine California Constitution Prop 8 California Supreme Court marriage recognition human rights marriage Defense of Marriage Act (DOMA) domestic partnership

DC Council Introduces Marriage Equality Bill

"Show your friends across the sea/It's a fair dance"

06 October 2009

On Tuesday, October 6, the Council of the District of Columbia introduced legislation to allow same-sex couples to marry, the New York Times reports.  The bill is expected to pass, but it could be subject to congressional override, setting up the prospect of potentially uncomfortable votes for Democrats in Congress, which under Republican "leadership" had for a decade (until 2002) barred DC from spending federal or local money to implement the District's domestic partnership law.  If Congress manages not to intervene, it will be powerfully symbolic to see marriage equality come to the nation's capitol, in stronger form than merely recognizing valid marriages performed in other jurisdictions.  Now if Congress would repeal DOMA!

Posted by Cruz at 8:13 PM | Link | 0 comments

Categories: marriage District of Columbia Defense of Marriage Act (DOMA) domestic partnership

DC Council Introduces Marriage Equality Bill

"Show your friends across the sea/It' a fair dance"

On Tuesday, October 6, the Council of the District of Columbia introduced legislation to allow same-sex couples to marry, the New York Times reports.  The bill is expected to pass, but it could be subject to congressional override, setting up the prospect of potentially uncomfortable votes for Democrats in Congress, which under Republican "leadership" had for a decade (until 2002) barred DC from spending federal or local money to implement the District's domestic partnership law.  If Congress manages not to intervene, it will be powerfully symbolic to see marriage equality come to the nation's capitol, in stronger form than merely recognizing valid marriages performed in other jurisdictions.  Now if Congress would repeal DOMA!

Posted by Cruz at 8:12 PM | Link | 0 comments

Categories: marriage District of Columbia Defense of Marriage Act (DOMA) domestic partnership

LGBT Advocacy Groups Excluded from Suit Challenging Prop 8

"And you just might need a friend"

19 August 2009

Federal court trial judge Vaughn Walker has scheduled trial in the challenge to Proposition 8's ban on California's allowing same-sex couples to marry for January 2010.  See the San Jose Mercury News story here.  He also rejected the attempts of LGBT advocacy groups to intervene to challenge and an anti-gay group to defend Prop 8 as direct parties, indicating that they could instead present their views through amicus curiae ("friend of the court") briefs.  The City and County of San Francisco was allowed to intervene, but only for limited purposes according to some news accounts.  Let's hope that's enough to ensure the plaintiffs challenging Prop 8 establish an adequate factual basis for their claims.

Posted by Cruz at 12:50 PM | Link | 0 comments

Categories: California Constitution Prop 8 marriage recognition marriage

Portugal's Marriage Exclusion Upheld

"Something good could happen/Something good could have happened"

31 July 2009

In a closely divided decision, the Constitutional Court of Portugal voted 3 to 2 to uphold that country's restriction of marriage to male-female couples against a challenge based on a provision in the Portuguese Constitution forbidding sexual orientation discrimination, reports the Associated Press.  I believe this is the statement from the Court's web site (but I do not read Portuguese).  Unless the Court reverses course some time in the future or the European Court of Human rights accepts and agrees with the appeal of the lesbian couple denied a marriage license, marriage equality there will have to await the approval of Portugal's Parliament, which does not appear to be an imminent prospect.

Posted by Cruz at 5:04 PM | Link | 0 comments

Categories: sexual orientation discrimination marriage Portugal

NY Assembly Votes for Marriage Equality

"It's up to you"

13 May 2009

As reported in the New York Times, the New York state Assembly has voted 89-52 in favor of a bill opening civil marriage to same-sex couples. Proponents and opponents of the measure, which Governor Patterson supports, are now concentrating their efforts on the state Senate, where the defeat or passage of the bill is uncertain.  Will New York become the sixth state in the U.S. to afford same-sex couples marriage equality?

Posted by Cruz at 8:32 AM | Link | 0 comments

Categories: New York marriage

Marriage Equality In Maine.

"There's no stopping us now/Our love is here to stay"

06 May 2009

The Associated Press has reported that Maine has just become the fifth state to allow same-sex couples to marry.  Like Vermont, they did so through a vote of their state legislature.  The Northeast is once again proving itself a leader on liberty and equality, and it's easy to understand why so many people feel a sense of momentum behind the drive for marriage equality.

Posted by Cruz at 10:17 AM | Link | 0 comments

Categories: Maine marriage

Maine joins move towards marriage equality

"I must be dreaming"

05 May 2009

The Associated Press has reported that the Maine legislature has voted in favor of a bill to allow same-sex couples to marry.  If they vote "yes" a second time and Maine's governor, who has not decided whether to sign it, approves it, Maine would become the first state allowing same-sex couples to marry and the fourth in New England!

Posted by Cruz at 11:37 AM | Link | 0 comments

Categories: Maine marriage

New Hampshire Takes Step Toward Marriage Equality

"They're gonna lead on"

29 April 2009

The New Hampshire state Senate has joined the state House in passing a bill opening marriage to same-sex couples (story here).  The bills would now have to be reconciled and the Governor have to sign it for the law to change.  If New Hampshire makes the shift from its current parallel civil unions/civil marriage regime to one of equal marriage rights for same-sex couples, it would become the fourth state in New England with such rights (Massachusetts, Connecticut, and Vermont being the other three).

[edited to remove broken link]

Posted by Cruz at 1:56 PM | Link | 0 comments

Categories: marriage New Hampshire

Marriage Recognition in District of Columbia

"Oh love - like liquid falling/Falling in cascades"

07 April 2009

Not only did the Vermont legislature today open civil marriage to same-sex couples, but the D.C. Council unanimously voted (initially, with a final vote on the legislation to follow) to recognize and honor marriages of same-sex couples lawfully performed in other jurisdictions.  What a week for marriage equality!

Posted by Cruz at 12:47 PM | Link | 0 comments

Categories: marriage recognition marriage District of Columbia

Marriage Equality in Vermont

"And the walls come tumbling down"

As reported by the Burlington Free Press, the Vermont legislature has just overriden the governor's veto of a bill opening civil marriage to couples regardless of sex/gender.  With Iowa last Friday, that makes two states to honor marriage equality within five days, doubling the number of states that allow same-sex couples to marry, with Massachusetts and Connecticut the other two, since Prop 8 is in effect in California precluding the state from issuing new marriage licenses to same-sex couples.

Vermont also becomes the first state to do so without court command (since the Baker v. State decision in 1999 left Vermont the initial choice of opening up marriage or creating another institution to provide the rights, benefits, and obligations of marriage, which the legislature did by creating "civil unions").  Add to that the fact that Vermont was the first state to abolish slavery and it really appears to be a path-breaking state.

Posted by Cruz at 8:19 AM | Link | 0 comments

Categories: marriage Vermont

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

Sweden to Allow Same-Sex Couples to Marry

"Somebody get some flowers! Somebody get a ring!"

01 April 2009

I'm trusting this isn't an April Fool's Day prank -- do they even observe this day in Scandinavia? -- but the national legislature in Sweden approved a law today that will open marriage to same-sex couples starting May 1.  You can check out the Wikipedia entry that's already up here.  Northern Europe now boasts three of the seven countries that don't discriminate on the basis of sex regarding whom their laws allow to get married.

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

Categories: Sweden marriage

Pro-Marriage Equality Initiative Filed

"Ooo and it's alright and it's comin' 'long"

20 March 2009

Yesterday, March 19, 2009, the California Secretary of State provided an official summary for a proposed initiative (the "California Marriage Equality Act") to re-amend the state constitution to restore same-sex couples' equal right to marry.  Proponents will now have until August 19 to gather the not quite 700,000 signature required to qualify it to go before the voters.  Besides repealing the section of the California Constitution added by Proposition 8, the measure specifies -- apparently to forestall some of the chief fear tactics used in the Yes on 8 campaign -- that it shall not be interpreted to change school curricula or force clergy to perform services or duties "incongruent with their faith."

Posted by Cruz at 10:43 PM | Link | 2 comments

Categories: California Constitution California Marriage Equality Act Prop 8 marriage

"A Horse with No Name"?

Chief Justice George and Marriage Without the Name

06 March 2009

During oral argument yesterday in the California Supreme Court, Chief Justice Ronald George more than once questioned attorneys for those challenging Proposition 8 about the scope of the measure.  I think his questions may not have fully appreciated the structure of the challengers’ “revision” argument (or may just have been designed to elicit a public articulation by counsel).  But it seemed that the Chief Justice and the attorneys may have been slightly talking past one another.

In his first questions and comments to Shannon Minter, Legal Director of the National Center for Lesbian Rights arguing on behalf of challengers to Prop 8, the Chief Justice suggested that the petitioners assumed that Prop 8 overturned not only same-sex couples right to marry but also the California Supreme Court’s holding in the marriage cases last year that sexual orientation was a suspect classification and laws discriminating against gay and lesbian people subject to non-deferential “strict scrutiny” review by courts.  “To the extent Proposition 8 is to be construed narrowly,” not affecting the other holdings the Court rendered, Chief Justice George suggested, “your argument that this is a wholesale revision as opposed to an amendment is weakened.”

Mr. Minter quickly clarified that he did not assume that Prop 8 touched those other holdings of the marriage cases.  But that position does not weaken the argument that Prop 8 should be judged a “revision” to the state constitution.  The Chief Justice’s  phrasing “wholesale revision” is, as he is well aware, not the terminology used by the state constitution, which simply distinguishes between a power to revise and a power to amend the constitution (without defining either or the difference).  “Wholesale revision” sounds like what the Court in past decisions has called a “quantitative revision” to the constitution, one which ranges so broadly and changes or adds so much to the document that it cannot be judged a mere, minor perfecting “amendment.”  Given the number of clauses in the state constitution that do guarantee equality in various ways, there is a nonfrivolous argument that Prop 8 is a quantitative restriction.  But it’s not the strongest basis for the challenge to the measure, and Minter appropriately noted that the parties were not making that argument when Justice Kennard asked about this a little further into the argument.

Rather, petitioners are arguing that Proposition 8 amounts to what the Court has termed a “qualitative amendment,” one that although not so voluminous in its changes nonetheless has a profound effect on existing constitutional arrangements.  It is the denial of equal access to a fundamental right based on a bare majority vote, which is all that Prop 8 needed to pass, that cuts the judiciary out of its longstanding role of protecting fundamental rights and particularly vulnerable minorities, diminishes the foundational guarantees of equality in the state constitution, correspondingly deprives California’s democracy of the assurance of equal citizenship and equal protection that is necessary to the consent of the governed and democratic legitimacy, and marks the measure as a revision and not a mere amendment to the state constitution.  All that holds true even though Prop 8 leaves intact other salutary aspects of the California Supreme Court’s decision in the marriage cases.

Yet another point of possible communication failure may have come with respect to the question whether Proposition 8 leaves intact rights that come with marriage, other than what Chief Justice George termed “the nomenclature” or “the label” marriage. 

When the Chief Justice next addressed Minter, George asked:  “What about the other rights though that go beyond the mere designation.  In answering that, what significance if any do you put to the rebuttal argument [in the official ballot pamphlet that] stated … Your yes vote means that only marriage between a man and a woman will be valid or recognized in California, but Proposition 8 will not take away any other rights or benefits of gay couples?”  (As a sidenote, it was a little perplexing to hear the Chief Justice speak about “mere designation” after writing last year’s opinion that so eloquently articulated the ways in which same-sex couples’ being treated the same as different-sex couples in their relationships, including access to the designation marriage, was integral to the equal dignity and respect required by the state constitution.)

Likewise, when Chief Justice George was speaking with Kenneth Starr, Dean of the Pepperdine Law School and counsel for the official proponents of Proposition 8 defending the measure, Dean Starr tried to insist that Prop 8 did not “invalidate” the marriages of same-sex couples entered into before the election, that there remained a “full panoply of rights.”  The Chief Justice immediately pressed him, “So they keep the rights?”  Whereupon Starr backed off or clarified, saying that the pre-election marriages of same-sex couples were not voided retroactively from the outset, but that California could not generally treat those couples who entered them as marriages after the election.   But George wanted to know why that was, why they wouldn’t keep the rights other than the name, “even though the rebuttal argument [in the ballot pamphlet] says Proposition 8 takes away no other rights or benefits?”

What Chief Justice George might have been contemplating was a state of affairs in which the Court holds that Proposition 8 takes away the power of the state of California to call same-sex couples “married” or their relationships “marriages,” but leaves in place all the rights acquired by couples who entered into their former-marriages before the election, both rights that were used before the election and ongoing rights from November 5, 2008 forward.  These presumably would not be domestic partnerships, because there are some rights of marriage that the domestic parternships lack (not to mention that they would not have been entered into in the fashion that the domestic partnership law provides).  They would rather be some new, as yet unnamed relationship created by the state constitution as a back-up, partial-equality measure if Proposition 8 became a valid part of the constitution but only stripped away “the nomenclature” of marriage.  A horse with no name, as it were.

That would not be an unreasonable reading of the effect of Proposition 8 in light of its language and the official ballot description.  It’s a little unusual – but then again, Proposition 8 was itself an unprecedented purported exercise of the amendment power.  And it would also seem to suggest that the domestic partnership law would have to be broadened, by virtue of the California constitution, to be identical to state marriage law except for the name.

Posted by Cruz at 9:37 AM | Link | 1 comment

Categories: Prop 8 California Supreme Court marriage 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)

Prop 8 Challenge Scheduled

Oral Argument Date Set

03 February 2009

From the California Supreme Court web site:  "The Supreme Court has announced that an oral argument will be held in the Prop. 8 cases on Thursday, March 5, 2009, from 9:00 a.m. to 12:00 p.m. The court will issue a written opinion in the cases within 90 days of oral argument."  The arguments will be carried on cable on the California Channel.  The Court's news release is here.

Posted by Cruz at 4:15 PM | Link | 0 comments

Categories: Prop 8 California Supreme Court marriage recognition marriage

Attorney General Sides with Marriage Equality

Jerry Brown's Brief Argues Prop 8 Is Invalid

19 December 2008

The brief in the Proposition 8 litigation filed by Jerry Brown, the state's Attorney General, agrees with the petitioners challenging Prop 8 that the measure is a more profound revision to the Constitution, not a minor amendment, and therefore unconstitutional because it cannot be adopted through the initiative process that was used.  While this does not guarantee that a majority of the California Supreme Court Justices will agree, it is a big development in the case and likely to weigh heavily in the Justices' minds.

UPDATE: Actually, the Attorney General's argument is that, although the challengers have not to his mind shown that Prop 8 counts as a revision, Prop 8 is nonetheless invalid because it attempts to eliminate fundamental rights without a compelling justification, which in his view is not a power encompassed by the initiative-amendment power.  So, although he doesn't agree with the revision argument, Jerry Brown agrees with the challengers that Prop 8 is not within the initiative power.  Interesting nuance, perhaps offering one or more Justices a third path, one that doesn't accept the revision argument but that nonetheless holds Prop 8 to be invalid.

Posted by Cruz at 6:50 PM | Link | 0 comments

Categories: Prop 8 California Supreme Court marriage

Prop 8 Defenders Bring Out Big Gun

Kenneth Starr to represent Proposition 8's official proponents

Today, December 19, is the deadline for the briefs of the defenders of the validity of Proposition 8 to be filed in the California Supreme Court.  ProtectMarriage.com - Yes on 8 has announced in a press release that Pepperdine Dean Kenneth W. Starr (remember him from his stint as Special Prosecutor in Whitewater/Monica Lewinsky affair?) will be representing the official ballot proponents in the state supreme court both defending Prop 8's validity (no surprise on that ground) and arguing that Prop 8 also doesn't allow California to continue to treat the same-sex couples married before the election as married (also no surprise, given statements on the Yes on 8 web site, even though the official ballot title and language were not nearly so clear about this kind of retroactive effect).

Posted by Cruz at 4:05 PM | Link | 0 comments

Categories: Prop 8 California Supreme Court marriage

The United Straights of America?

Obama Inauguration & UN Declaration

18 December 2008

In a double symbolic blow to sexual orientation equality in the U.S. today, it was announced that the invocation at the inauguration of President Elect Barack Obama will be given by Rev. Rick Warren, and the U.S. refused to vote in support of a United Nations declaration introduced in the General Assembly by France.  Warren, the leader of the Saddleback Church in Orange County, California, actively campaigned for Proposition 8 to strip same-sex couples of their fundamental right to marry under the California Constitution.  France's nonbinding declaration, supported by 66 countries, affirmed that international human rights protections extend to all persons "regardless of sexual orientation and gender identity."   Score -1 for the outgoing administration and -1 for the incoming administration.

Posted by Cruz at 10:22 PM | Link | 0 comments

Categories: Prop 8 Barack Obama human rights United Nations marriage

Kennard Conundrum?

Meaning of California Supreme Court Justice's Vote Not to Hear Prop 8 Challenges

26 November 2008

The Los Angeles Times has reported here that "legal experts" are puzzled by California Supreme Court Associate Justice Joyce Kennard's statement when the court decided to hear the challenges to Prop 8.  The court's order noted that Justice Kennard "would deny these petitions without prejudice to the filing in this court of an appropriate answer to determine Proposition 8's effect, if any, on the marriages of same-sex couples performed before Proposition 8's adoption."

The Times notes that Justice Kennard's "vote against hearing the legal challenges [might have been] procedural -- for example, she might have wanted them to be filed in lower courts first . . . ."  But the paper then curiously claims that "a close reading of the court's one-page order suggests that gay-rights advocates may have lost a usually predictable ally in their effort to overturn Proposition 8."  Perhaps Kennard has already decided she doesn't accept the interpretation of constitutional "revision" advanced by Prop 8's challengers.

To support this interpretation, which I shall call the pessimistic reading of Justice Kennard's statement, the Times reasons as follows:

The order said Kennard would hear a new case to resolve the validity of the 18,000 same-sex marriages "without prejudice" -- a phrase that indicates she was open to arguments on the issue. But she declined to modify her denial of the Proposition 8 challenges with those same words.

But this reading is flawed.

What Justice Kennard said was that she would deny these petitions challenging Prop 8 without prejudice to -- without harming -- the Prop 8 challengers' ability to file new suits about Prop 8's meaning in the California Supreme Court.  A denial of the petition without qualifying language is non-precedential and would leave the parties free to file a new suit making precisely the same arguments in state trial court.  (Legal beagles can find confirmation of this claim in the California Supreme Court's decision in Funeral Directors Association of Los Angeles & Southern California v. Board of Funeral Directors & Embalmers of California, 22 Cal. 2d 104, 136 P.2d 785 (1943).)  So, even if the Times is reading the scope of the "without prejudice" caveat correctly, it does not mean that Justice Kennard said she would have voted against the constitutional challenge to Proposition 8 on the merits.  Rather, she just didn't vote now to hear the case in the state supreme court originally.

So, while we cannot know what was in Justice Kennard's mind unless she tells us, there is less to support the pessimistic reading than the Times suggested.

On the other hand, there is more to support an optimistic reading than the Times article includes.  As I just explained, Justice Kennard's preferred vote to deny the petition for a writ of mandamus (the technical term for the lawsuit filed in the California Supreme Court by by those challenging Proposition 8) is not a vote on the merits of that argument.  It would not count as an adverse decision against the challengers even if she had a majority to go along with her.  The challengers would be free to re-start a legal challenge to Prop 8 by filing a complaint in the trial court.  Whoever lost would certainly appeal, and whoever lost in the Court of Appeal would ask the state supreme court to hear a further appeal, which it would be free to do even having earlier denied the Prop 8 challengers' petitions.

And it is plausible to think that Justice Kennard had exactly that in mind, rather than a belief that the challengers' argument was wrong.  In a 1999 decision in Senate of the State of California v. Jones (988 P.2d 1089, 90 Cal. Rptr. 2d 810), a majority of the court considered a case arguing that a proposed Proposition 24 should be struck from the ballot for various constitutional reasons, including a claim that it violated the rule limiting initiatives to a single subject and a claim that it would amount to a "revision" of the state constitution , not a minor "amendment" of it, and so must start in the legislature.  (That is the same sort of revision claim at the heart of the current challenges to Proposition 8.)  The majority ruled that proposed Prop 24 violated the single-subject rule, and it never went before the voters.

Justice Kennard dissented (joined by Justice Janice Rogers Brown), but she did not reach the merits of the single-subject or revision arguments.  She objected to what she called the majority's "hasty decision to declare invalid" that measure.  She thought there would be plenty of time to decide the issue later if need be.

So, on the optimistic reading, Justice Kennard would deny the petitions challenging Prop 8 because she saw no need to "rush to decision" (to quote her Jones dissent again) about whether Prop 8 was an invalid revision or a valid amendment to the state constitution.  The "without prejudice" qualification could have reflected a view that for the already married same-sex couples, there was an important reason for the California Supreme Court to decide whether they were affected without waiting for litigation to work its way up through the state court system – to remove any uncertainty about the validity of those marriages.  (On this view, Kennard's statement could also be evidence that she's leaning toward holding that Prop 8 would, if valid, operate purely prospectively and not touch the existing marriages.)

Granted, Jones was a pre-election review case where the court set itself an even tighter schedule than it did when it decided to hear the challenges to Prop 8.  But the reasons Kennard wanted the court to delay there could also be applicable here:  "this challenge to Proposition [8] presents issues that are close and difficult, and because there has been inadequate time to give these issues the thoughtful attention and deliberation they deserve."

So, we really are left trying to read tea leaves, but the leaves don't tilt against the challenges to Proposition 8 the way the LA Times suggested.

Posted by Cruz at 1:31 PM | Link | 0 comments

Categories: Prop 8 California Supreme Court marriage recognition marriage

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

Californians Enshrine Discrimination in Constitution

Prop 8 passage ensures questions

05 November 2008

The Los Angeles Times has reported that Proposition 8, which eliminates the right of same-sex couples to marry in California, is ahead, 52% to 48%.  Almost 95% of California's voting precincts have been counted, and the counties with significant measures of votes outstanding voted heavily in favor of Prop 8.

This assures that a new round of legal questions will have to be confronted.  Was the measure merely an amendment to the constitution, or was it a qualitatively deeper "revision,"?  If it amounts to a revision, then the measure was procedurally irregular and void, for revisions must originate in the state legislature with a 2/3 vote of each house before going to the voters.  Prop 8, in contrasts, got on the ballot via initiative (registered voters signing petitions).

What is the fate in California of existing marriages?  Does Proposition 8 operate prospectively only, effectively "grandfathering" in the estimated 16,000 same-sex couples who married between mid-June and the passage of Prop 8 last night?  Even if it bars, California from continuing to treat those couples as married, it probably (though this remains to be worked out) would not stop other states from recognizing the pre-Prop 8 marriages.  States such as Massachusetts, which allows same-sex couples to marry civilly, or New York, which doesn't itself marry same-sex couples but recognizes their validly entered marriages from other jurisdictions, are likely free to continue recognizing these marriages.  I have sometimes described the quasi-retroactive view of Prop 8 as akin to a forced divorce, but it is probably more like a legal blind spot on the part of California; these marriages were validly entered, the parties have not divorced, so even though California will no longer treat them as marriages, others states most likely will be able to.

Posted by Cruz at 7:07 AM | Link | 2 comments

Categories: Prop 8 marriage recognition marriage

Senator Feinstein Condemns Proposition 8

"You have lighted the road leading home"

28 October 2008

With one week left until election day, Senator Diane Feinstein has released a TV ad for the No on Prop 8 campaign.  A YouTube version of the ad can be viewed here.  Next week we will learn whether a majority of voters agree with her that Proposition 8 "would be a terrible mistake for California."

Posted by Cruz at 2:16 PM | Link | 1 comment

Categories: Prop 8 marriage

Oct. 22 Poll Shows Prop 8 Losing Among Likely Voters

"Don't Stop the Love"

23 October 2008

The Public Policy Institute of California (PPIC), a highly regarded polling outfit, just released a new poll on October 22 showing that likely voters oppose Proposition 8 by a margin of 52% to 44%.  The PPIC poll is based on telephone interviews conducted October 12-19, and has a margin of error of ± 3%.  These numbers, taken after the No on 8 campaign started running its ads, is a reversion to numbers closer to what were seen all summer long, before the Yes on 8 ads started running.  The full study can be found here.

[edited to add link to PPIC press release and study]

Posted by Cruz at 7:31 AM | Link | 0 comments

Categories: Prop 8 public opinion 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

Prop 8 Foes & Fans Raking in Big Bucks

"Money Makes the World Go 'Round"

31 July 2008

The fight over whether to adopt Proposition 8 on the November ballot to amend the California constitution to eliminate the right of same-sex couples to marry seems to be picking up steam financially.  On Tuesday, July 29, No on 8-Equality California announced that Pacific Gas & Electric Co. is donating $250,000 to help fight the proposed amendment, reports the LA times.  But the American Family Association has donated $500,000 to help support it.  The Political Blotter blogs about the AFA's and other significant contributions here.

Posted by Cruz at 8:58 AM | Link | 0 comments

Categories: Prop 8 marriage

Prop 8 retitled & redescribed

"What's my name again?"

26 July 2008

Although grammatically unusual – I would have expected most initiative titles to be noun phrases rather than verb phrases – there's a new name as well as a new summary description for Proposition 8, the proposed marriage-restricting amendment to the California constitution that will be on the ballot on November 4.  Seemingly agreeing with some of the second argument in the writ that sought and failed to get the measure removed from the ballot, the state Attorney General announced this week that the measure will be listed as follows on the ballot (barring successful legal challenge):

Proposition 8
ELIMINATES RIGHT OF SAME-SEX COUPLES TO MARRY.
INITIATIVE CONSTITUTIONAL AMENDMENT

Changes California Constitution to eliminate right of same-sex couples to marry. Provides that only a marriage between a man and a woman is valid or recognized in California.

Fiscal Impact: Over the next few years, potential revenue loss, mainly sales taxes, totaling in the several tens of millions of dollars, to state and local governments. In the long run, likely little fiscal impact to state and local governments.

Posted by Cruz at 8:26 AM | Link | 0 comments

Categories: Prop 8 marriage

Court Lets California Constitution Amendment Fight Continue

16 July 2008

The California Supreme Court has ruled in Bennett v. Bowen, the case filed seeking to have Proposition 8 removed from the November 4 ballot.  (Prop 8 would amend the state constitution to deny same-sex couples the right to marry.)  The Court summarily denied the Application for Stay and Petition for Extraordinary Relief, Including Writ of Mandate.  See the July 16 entry in the Docket for the case.  With that unsurprising development, the battle over the proposed amendment will certainly continue in earnest.

Posted by Cruz at 3:16 PM | Link | 0 comments

Categories: Prop 8 California Supreme Court marriage

Welcome to the (Marriage) Club, Norway

17 June 2008

Norway is now set to become the sixth country in the world (following the Netherlands, Belgium, Spain, Canada, and South Africa) to allow same-sex couples to marry civilly.  The law, passed today, will go into effect January 1, reports the Los Angeles Times in this story.

Posted by Cruz at 4:40 PM | Link | 0 comments

Categories: marriage

"Should I Stay or Should I Go?"

04 June 2008

By its original 4-3 majority, he California Supreme Court has denied the requests for rehearing and that it stay the effect of its decision in In re Marriage Cases until after the voters decide in November whether to amend the state Constitution to bar the state from recognizing marriages for same-sex couples.  (The court's news release and order are here.)  This comes as no surprise to me and most scholars who've commented on the requests, but it does clear the way for counties to start issuing marriage licenses to same-sex couples without fear of liability as early as 5:00 p.m. on Monday, June 16.

Posted by Cruz at 9:27 AM | Link | 2 comments

Categories: marriage California Supreme Court

"I Want to Be a Part of It, New York, New York"

28 May 2008

As reported by the New York Times, the Governor of New York has directed all state agencies to recognize marriages lawfully entered by same-sex couples in other jurisdictions.  This would include the Netherlands, Belgium, Spain, Canada, South Africa, Massachusetts, and very soon California.  New York joins Rhode Island in recognizing such lawful marriages.  This development might lead to further pressure for New York to pass legislation opening civil marriage to same-sex couples.

Posted by Cruz at 7:32 PM | Link | 0 comments

Categories: marriage recognition marriage

"It Doesn't Matter Your Opinion"

Practically speaking, Traci Adams may not be right (see her song "You Are Not God").  Be that as it may, a new Field poll taken in the wake of the California Supreme Court's In re Marriage Cases shows that, even taking into account the margin of error, a majority of registered voters in California now support the right of same-sex couples to marry and oppose the November ballot initiative to amend the Constitution to take away that right.  Of course, this is a different result from a Los Angeles Times poll last week, which found bare majorities disapproving of the state Supreme Court decision and supporting the initiative.  The new poll from the highly respected outfit may be expected to worry proponents of amending the California Constitution and to galvanize those seeking to keep the state from denying members of same-sex couples the right to marry the person they love.

Posted by Cruz at 10:28 AM | Link | 0 comments

Categories: public opinion marriage California Supreme Court

I'm Getting Married in the Morning

15 May 2008

The California Supreme Court has just held, 4-3, that the state constitution requires the government to allow same-sex couples to marry civilly.  Chief Justice George wrote the majority opinion, joined by Justices Kennard, Werdegar, and Moreno.  The court held that the least deferential form of review applied -- "strict scrutiny" -- because the exclusion of same-sex couples from civil marriage discriminated on the basis of sexual orientation and because it "impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple." More details soon.

Now, it might not actually be in the morning.  Under Rule of Court 8.528(b), the decision will become final in 30 days unless the court orders otherwise.  Notably, today's decision does not follow Vermont's or Massachusett's lead in offering legislators 6 months to fix the constitutional problem.  In part, that seems unneeded because those states lacked the fairly comprehensive domestic partnership regime California enjoys.  What the court instead said was that "Plaintiffs are entitled to the issuance of a writ of mandate directing the appropriate state officials to take all actions necessary to effectuate our ruling in this case so as to ensure that county clerks and other local officials throughout the state, in performing their duty to enforce the marriage statutes in their jurisdictions, apply those provisions in a manner consistent with the decision of this court."  Nothing should keep a county (say, San Francisco) that wanted to from complying with the judgment before 30 days have run.

Posted by Cruz at 10:05 AM | Link | 0 comments

Categories: marriage California Supreme Court

California, Here I Come?

14 May 2008

Posted by Cruz at 11:44 AM | Link | 0 comments

Categories: marriage California Supreme Court

In Sickness and in Health

09 May 2008

    Government employers in Michigan cannot offer health insurance to same-sex domestic partners, the Michigan Supreme Court ruled 5-2 on May 7, 2008 in National Pride at Work v. Governor of Michigan (opinion here).  Interpreting a state constitutional amendment that was designed to keep same-sex couples from legally marrying, the state supreme court disregarded all the evidence that the voters only intended to affect the state’s marriage law and not domestic partnerships, and put its blessing on the Michigan Christian Citizens Alliance’s bait-and-switch tactics.

    The so-called “marriage amendment” to Michigan’s constitution, crafted by the MCCA and its Citizens for the Protection of Marriage committee, was adopted by ballot initiative in 2004.  It provides:  “To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.”  (Curiously, the pre-comma portion of this amendment did not actually appear on the ballot.)  This language made Michigan’s marriage limitation amendment significantly broader than many other states’.

    Just how much broader was the question in National Pride at Work, and the Michigan Supreme Court majority basically answered, “very.”  Justice Markman’s opinion did not focus on the operative consequences of the “domestic partnerships” at issue, which fell dramatically short of those of marriage, which could have allowed the court to read the amendment as the dissent did, as simply precluding government from creating or accepting another state’s marriages between same-sex couples or comparable statuses like civil unions.  Instead, the majority focused on the eligibility criteria for the lone benefit at issue (health insurance).  Giving health coverage to a domestic partner “recognized” a domestic partnership for some purpose, and so would be unconstitutional if the domestic partnership were a union “similar” to marriage.  “Because marriages and domestic partnerships are the only relationships in Michigan defined in termsof both gender and lack of a close blood connection, and, thus, have these core ‘qualities in common,’” the majority reasoned, “the domestic partnerships are unions similar to marriage.”

    The interpretation adopted in the opinion of the court is far from preposterous.  But in their rush to exemplify judicial restraint, the majority justices found clarity where the dissent saw ambiguity, and took that as their license to ignore considerations of justice as well as the likely intent of the Michigan electorate.  Justice Kelly’s dissent recounted the significant evidence that a sizeable majority of the voters of Michigan wished only to keep their state constitution from becoming a tool to open civil marriage to same-sex couples, and in fact favored the extension of health benefits for the same-sex partners of government employees.  And the amendment’s sponsor, the MCCA, repeatedly and publicly insisted that the measure wasn’t about benefits, just about the definition of marriage.  (The majority questioned why the measure’s proponents’ views should get more weight than the opponents view, which suggested it would have more far-reaching consequences.  But that’s how the U.S. Supreme Court has approached the U.S. Constitution, giving more weight to the Federalist Papers than to the Anti-Federalist.)  Yet because the language of the measure the voters approved arguably could be read more broadly, forbidding the government to extend any marital benefit to a committed same-sex relationship as such, the majority deemed the “extrinsic” evidence of voter intent to be irrelevant.  Caveat voter.  (Troublingly, the Michigan “marriage amendment” is not expressly phrased as a restriction on government, instead providing that nothing but one man-one woman marriage “shall be ... recognized.”  It is almost unthinkable that the court would hold this to forbid private companies from extending domestic partners benefits, but that reading might appear as “unambiguous” to the majority as its other conclusions seemed to them in National Pride at Work.)

    What now?  Perhaps governmental institutions such as the city of Kalamazoo, the University of Michigan, and Michigan State University, just to name a few, might redefine the eligibility for health benefits for domestic partners.  Perhaps they could remove the limitation to same-sex couples, so that a man and an unrelated woman who chose not to marry could get domestic partner health benefits; alternatively, these institutions might continue to limit eligibility to same-sex couples but remove the restriction against certain close relatives forming domestic partnerships, so that two sisters could get DPP health benefits; or maybe they could remove both, so that a brother and sister could be domestic partners, for example.  Either or both of these moves would eliminate at least one of the two features–sex limitations, and the exclusion of close relatives–which together made (same-sex) domestic partnerships “similar” to (different-sex) marriages in the majority’s eyes.

    Whether that would be enough to make the “recognized” relationships sufficiently unlike marriage to make health benefits permissible is an open question, though.  Footnote 14 of the majority opinion listed numerous other respects in which the majority justices regarded marriages and domestic partnership as similar relationships.  The majority called attention to the binary nature of the relationship, undertaking obligations of mutual support, the necessity for a contract or agreement for the relationship to exist, minimum age requirements, indefinite durations of the relationship (until “one of the parties takes affirmative action to terminate the relationship”), and for some of the policies the requirement that the domestic partners share a common residence.  (The majority’s argument on the last point invoked the possibly oxymoronic notion that common residence “typically defin[es]” the marriage relationship.)

    In light of that litany, it could be that the majority would not find providing any benefit to a domestic partner or partnership consistent with the state’s “marriage amendment” unless the eligibility criteria were so loose that they did not connote a relationship at all in any meaningful sense of the word.  A policy that allowed an employee to designate any one person whatsoever of her or his choice to be eligible for health insurance coverage might pass muster with the majority precisely because it would not look like it is extending any official respect to the relationship of a committed same-sex couple.   If that were to prove right, then the Michigan Supreme Court would have essentially turned a state constitutional amendment “To secure and preserve the benefits of marriage” into a general-purpose repudiation of the dignity of same-sex couples and relationships.

    By denying the ability for government to provide any benefit to same-sex domestic partners that is offered to married couples, unless they can get the state constitution re-amended, that also might make Michigan’s “marriage amendment” more vulnerable to constitutional challenge.  By increasing the broad sweep of the measure, it would more closely resemble the anti-lesbigay Amendment 2 to Colorado’s constitution, which the U.S. Supreme Court held violated the Equal Protection Clause in Romer v. Evans in 1996.  Of course, the composition of the Supreme Court today is different from its composition in 1996, with Justice O’Connor replaced by Justice Alito, who so far appears further to the right on the Court than did O’Connor.  So the theoretical prospect of a federal constitutional ruling in their favor may be cold comfort to the same-sex couples in Michigan now deprived of health insurance, and thus of equal pay for equal work.

Posted by Cruz at 3:46 PM | Link | 0 comments

Categories: marriage domestic partnership

Tea Leaves and Sympathy

11 March 2008

Divining case outcomes from questions and answers at oral arguments is perilous business in the best of circumstances.  In the context of last week’s arguments before the California Supreme Court in the high-profile cases seeking the right to marry for same-sex couples, trying to determine the Justices’ votes based on their questions and comments is probably a fools errand.
    The Los Angeles Times, however, concludes:  “Three of the court’s seven justices strongly indicated that they would uphold the state law defining marriage as a contract between a man and a woman[.]”  Although the Times does not specify whom it meant, my observation of the arguments leads me to suspect the paper is referring to Associate JusticesMarvin Baxter, Ming Chin, and Carol Corrigan.  While the Times could perhaps be right about these Justices’ sympathies, I would not be certain.
    The strongest of the Times’ calls is probably Justice Chin.  He repeatedly pressed attorneys for the plaintiffs to agree that the rights and obligations provided by California to same-sex couples who register as domestic partners are “substantially” equal to those afforded different-sex couples who marry civilly.  In responses to arguments that the exclusion of same-sex couples from civil marriage was nonetheless a deprivation of equal protection of the laws, he questioned:  “But doesn’t that place rhetoric over reality?”  But even Chin asked the attorney for the Proposition 22 Legal Defense Fund about parallels between the treatment of African Americans and the treatment of gay and lesbian persons:  “But aren't the problems similar and haven’t the gay and lesbian community members gone through very similar kinds of discrimination?”
    Justice Baxter also expressed a fair amount of skepticism.  Curiously, though, he pushed a number of attorneys to state their agreement that if Proposition 22 (see Law of Unintended Consequences from March 29) governs not only the out-of-state marriages it was advertised as denying recognition to, but also marriages contracted within California, the legislature would lack the power to let same-sex couples marry while Prop 22 is on the books.  Although this might be a sign that he is unsympathetic to the plaintiffs’ narrow interpretation of Prop 22, it could also be a suggestion that the state constitution precludes the legislature from looking out for the equality rights of lesbian and gay Californians in the face of anti-gay statutes adopted via ballot measures, leaving that job to fall elsewhere – perhaps to the Court?
    Third, and in a similar vein, Justice Corrigan forced the attorney representing Governor Schwarznegger to agree with her that the issue of whether same-sex couples should be allowed to marry couldn’t really be left up to the legislative process per se if the Court concluded that Prop 22 applied not just to out-of-state marriages but also to marriages contracted within California; since the legislature cannot override a ballot initiative, “it might be somewhat more accurate to say you would leave it up to the democratic process.”  She repeatedly worried about the point in time at which the plaintiffs believed the refusal to recognize marriages between same-sex couples “became” unconstitutional and how the Court could know whether the people of California were far enough along in their understanding of the evolution of marriage to open that institution to same-sex couples.  “That to me is the essential question here; if society is different now how can we say that the majority of Californians have turned the corner, made this change, we now as the body politic are ready?”
    But Justice Corrigan’s questions too were far from one-sided.  When the attorney for the Proposition 22 Legal Defense Fund attempted to argue that procreation provided a rational basis for the government to exclude same-sex couples from civil marriage, the Justice asked:  “Well then should we have marriage laws that say , that say you can’t marry unless you are prepared to have children, or capable of having children, or your marriage doesn’t count until you do have children?  I’m puzzled by this somewhat narrow definition of why the state gets involved.  Certainly that is a very important aspect of this institution, but it is not the sine qua non, is it?”
    Ultimately, trying to discern the Justices sympathies from the questions at last week’s oral argument is probably not much more effective than trying to read tea leaves, and whether she was speaking about individual Justices or the state Supreme Court as a body, Justice Kennard probably summed it up best:  “You don’t know where we’re going.”

Posted by Cruz at 10:54 PM | Link | 0 comments

Categories: marriage California Supreme Court sex

Law of Unintended Consequences

29 February 2008

On Tuesday, March 4, the California Supreme Court hears oral arguments in the historic lawsuits seeking civil recognition of marriages between same-sex couples.  Fearing a decision that the California Constitution requires such recognition, opponents of marriage equality are already gathering signatures to place measures on the ballot in November.  If approved, these initiatives would amend the state constitution to try to keep marriage heterosexual.  But assuming the state Supreme Court rules in favor of marriage equality, the proponents of one of those measures may be in for a rude awakening.  It might turn out that instead of “protecting” marriage, the ballot measure would end up abolishing civil marriage in the state of California.

            One of the proposed initiatives being circulated has been styled the “California Marriage Protection Act” by its proponents, who include Gail J. Knight.  Were it adopted by the voters, this measure, which I’ll call the Knight Amendment, would add a single sentence to the state Constitution:  “Only marriage between a man and a woman is valid or recognized in California.”

            If these words sound familiar, they should.  Back in 2000 state Senator Pete Knight, the since deceased husband of Gail, sponsored Proposition 22, a ballot initiative that added to the California Family Code the exact same language.  That initiative was advertised as protecting California’s sovereign authority to decide which marriages to recognize from other states.  It was approved by the voters by a substantial margin.

            So why this new initiative?  By amending the Constitution, the backers hope to place the issue of marriage equality beyond the reach of the legislature and the courts.  And they hope to preclude the possibility that same-sex couples will be allowed to marry in California as a result of a state Supreme Court decision interpreting the California Constitution.

            But the language of the proposed Knight Amendment is most likely inadequate to the task of keeping marriage as a heterosexual-only institution in California.  It’s basic shortcoming is that it only puts a limit on which marriages California may treat as valid and recognize, but neither requires that California must treat as valid and recognize any marriages at all nor amends the equality provisions in the state constitution.

            So, consider this plausible scenario.  Sometime between March 4 and June 2 the California Supreme Court rules that the refusal of the state to recognize marriages between same-sex couples violates the Equal Protection Clause of the state constitution.  In doing so, the Court would necessarily be holding that the robust domestic partnership laws of the state do not suffice to treat same-sex couples equally with different-sex couples.  If the Knight Amendment then qualified for the November ballot and the voters approved it, we would be left with the following state of affairs:  It would not satisfy the California constitution’s equality guarantee to allow different-sex couples but not same-sex couples to marry; but it would not satisfy the state constitution’s Knight Amendment to allow same-sex couples to marry.

            How then could the state satisfy both those constitutional constraints, as would be their duty?  By not letting any couples marry.  California could abolish “marriage” as such, and perhaps substitute domestic partnership for all couples, instead of just for same-sex couples and elderly different-sex couples as is currently the case.  If the only formal relationship status the state offered couples were a domestic partnership, then it would be treating same-sex couples and different-sex couples equally for state constitutional purposes and so not violating the Equal Protection Clause of the California Constitution.  And if the state did not recognize any marriages as “marriages,” it would not violate the proposed Knight Amendment, which does not specify that “marriage between a man and a woman” shall be recognized or valid in California.  This measure says “only,” and so would be violated only if the legislature afforded recognition to some marriages in addition to marriages between a man and a woman.  True, the measure’s proponents and language seem to expect that marriage would continue to exist, but the Knight Amendment doesn’t expressly require that – unlike some of the other circulating ballot measures, which do specify that marriage shall not be abolished.

            I know that may seem like an unsatisfyingly technical interpretation of state constitutional provisions.  Moreover, I am one of a group of constitutional law professors in California who filed an amicus brief arguing that a legislative choice to abolish marriage rather than open the civil status to same-sex couples would be infected by anti-lesbigay bias and therefore would violate California's Constitution.  Yet the proposed Knight Amendment would change the state Constitution and leave no room for a legislative choice to allow same-sex couples to marry.  So the situation would be different if the Knight Amendment were adopted.  In that case, the California courts would act within their authority to declare that the best that could be done to satisfy constitutional equality principles under the circumstances would be to eliminate marriage, because marriage could only exist in a discriminatory form under the Knight Amendment.

            Abolishing civil marriage is certainly not an intended consequence of the Knight Amendment.  But that just underscores the dangers of compromising constitutional principle by writing discrimination into a constitution.  If the voters are fair enough to appreciate that, we’ll reject the Knight Amendment and not try to nullify a California Supreme Court ruling allowing same-sex couples to have the same full recognition of and protection for their marriages as different-sex couples now enjoy.

Posted by Cruz at 10:40 AM | Link | 1 comment

Categories: marriage sex