CruzLines

AALS to move meetings from Manchester Grand Hyatt due to owner's Prop 8 support

2008-08-18T15:26:29-07:00

The Executive Committee of the Association of American Law Schools has issued a statement here (dated August 15) that, in order to ensure maximum participation by its members, all programs at its January 2009 Annual Meeting will be held at the San Diego Marriott rather than the Manchester Grand Hyatt, of which some have called for a boycott due to owner Doug Manchester's extensive support of the effort to change the California Constitution to eliminate the right of same-sex couples to marry. The measure that would do this if passed, Prop 8, will appear on the California ballot in November.

Prop 8 Title & Description Upheld

2008-08-08T15:11:32-07:00

As reported in the Mercury News here, a California Superior Court judge today rejected the challenge to the re-titling and re-description of Proposition 8 (see Prop 8 Retitled & Redescribed, 26 July 2008, below), the ballot initiative that would change the California constitution to eliminate the right of same-sex couples to marry. No big surprise here. The trial judge was clearly correct that the new descriptive language was neither false nor misleading. Unless the Prop 8 supporters who challenged the language appeal and win, an extremely unlikely prospect, the ballot should go to the printer Monday, August 11 with language that will transparently convey the real impact of Prop 8 were the voters to approve it.

Prop 8 Foes & Fans Raking in Big Bucks

2008-07-31T08:58:59-07:00

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.

Prop 8 retitled & redescribed

2008-07-26T08:26:00-07:00

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.

Court Lets California Constitution Amendment Fight Continue

2008-07-16T15:16:36-07:00

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.

Death Penalty for Raping Child Unconstitutional

2008-06-25T08:17:00-07:00

The Supreme Court of the United States has held in Kennedy v. Louisiana, by a 5-4 vote, that the state violated the Eighth Amendment's ban on cruel and unusual punishments by prescribing the death penalty for rape of a child under the age of 12, where the perpetrator did not kill the child and did not intend to kill the child. Justice Kennedy (no relation to the convicted) wrote the majority opinion, joined by Justices Stevens, Souter, Breyer, and Ginsburg. Justice Alito dissented, joined by Chief Justice Roberts and Justices Scalia and Thomas. Despite the recognized brutality of the crime against the child victim, Justice Kennedy's opinion for the Court insisted on the Constitution's commitment to respecting the dignity of all individuals. "As it related to crimes against individuals," he wrote, "the death penalty should not be expanded to instances where the victim's life was not taken." (Note though the interesting conflict between the Court's framing of its principles -- is the death penalty unconstitutional whenever "life [i]s not taken," or could it be imposed if the perpetrator intended to take life even if the crime did not result in the victim's death? This could become a point of future litigation about the reach of the Eighth Amendment.)

"Every male has a choice about where he puts his penis."

2008-06-18T07:34:00-07:00

The British House of Lords today ruled 3-2 that conviction of a male for "rape of a child under age 13" when he, at age 15, had what was accepted in this posture as consensual peno-vaginal intercourse with a 12-year-old female, did not violate the European Convention on Human Rights provision (article 8) guaranteeing respect for private life.

Over the dissents of Lord Hope of Craighead and Lord Carswell, a majority consisting of Lord Hoffman, Baroness Hale of Richmond, and Lord Mance ruled that, given the way the case arose (where the complainant after the defendant was charged admitted lying about her age and later in the proceedings expressed her satisfaction with a guilty plea entered on the basis that the two of them had consensual sex, so that she did not have to testify in court), the crown was not required to proceed against the defendant on the basis of a different section of the Criminal Offences Act of 2003 criminalizing "sexual offences committed by persons under 18," which carries lower penalties and did not bear the term "rape" in its title. The majority believed that the defendant's main objection, since the Court of Appeal had reduced his sentence, was the stigma of the term "rape." But they did not believe that sufficient to violate the defendant's article 8 right to respect for his private life.

Baroness Hale, speaking somewhat plainly, also took pains to reject the characterization of section 5 of the Act as a "strict liability" crime that the Lords were somehow improperly upholding:

The perpetrator has to intend to penetrate. Every male has a choice about where he puts his penis. It may be difficult for him to restrain himself when aroused but he has a choice. There is nothing unjust or irrational about a law which says that if he chooses to put his penis inside a child who turns out to be under 13 he has committed an offence (although the state of his mind may again be relevant to sentence). . . . The object is to make him take responsibility for what he chooses to do with what is capable of being, not only an instrument of great pleasure, but also a weapon of great danger.

Welcome to the (Marriage) Club, Norway

2008-06-17T16:40:03-07:00

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.

Arriverderci "Persons, Not Groups"

2008-06-09T08:17:30-07:00

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.

"Should I Stay or Should I Go?"

2008-06-04T09:27:14-07:00

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.

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

2008-05-28T19:32:00-07:00

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.

"It Doesn't Matter Your Opinion"

2008-05-28T10:28:11-07:00

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.

Take That

2008-05-27T12:53:59-07:00

The Supreme Court of the U.S. today interpreted two federal civil rights laws to protect workers from retaliation for complaining about prohibited discrimination. In CBOCS West, Inc. v. Humphries, the Court held that a post-Civil War era law, 42 U.S.C. § 1983, which provides that "[a]ll persons ... shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens," allowed former Cracker Barrel assistant manager to sue not only for his own allegedly racially motivated firing but also for alleged retaliation because he had complained about racially discriminatory treatment of a co-worker. In Gomez-Perez v. Potter, the Court held that the federal Age Discrimination in Employment Act allowed a postal worker to sue for alleged retaliation against her after she filed an administrative ADEA complaint. In both cases Justices Scalia and Thomas dissented, and Chief Justice Roberts dissented as well in Gomez-Perez.

Don't Ask, Perhaps Tell?

2008-05-24T12:59:17-07:00

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.

I'm Getting Married in the Morning

2008-05-15T10:05:00-07:00

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.

California, Here I Come?

2008-05-14T11:44:00-07:00

I'm already in the state, but others might end up traveling here: The California Supreme Court has now posted on its web site that the decision in the marriage cases (seeking the right to marry for same-sex couples) will be issued tomorrow. Generally they post decisions at 10:00 a.m. The opinion should be available here tomorrow at around 10:00.

In Sickness and in Health

2008-05-09T15:46:52-07:00

    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.

Tea Leaves and Sympathy

2008-03-11T22:54:21-07:00

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.”

Law of Unintended Consequences

2008-02-29T10:40:00-07:00

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.