CruzLines

Marriage Equality Defeated (for now) in Maine

2009-11-04T07:33:06-08:00

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.

Prop 8 Ruling Tuesday, May 26

2009-05-22T10:26:28-08:00

The California Supreme Court has given notice that it will hand down its decision in the challenge to Proposition 8 on Tuesday, May 26. Try not to let this preoccupy you during the Memorial Day weekend.

Prop 8 Ruling Tuesday, May 26

2009-05-22T10:25:25-08:00

"A Horse with No Name"?

2009-03-06T09:37:55-08:00

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.

"Mama take just a little bit from my heart"

2009-03-05T23:18:00-08:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Assembly Judiciary Committee Embraces Revision Argument

2009-02-17T13:50:36-08:00

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

Prop 8 Challenge Scheduled

2009-02-03T16:15:33-08:00

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.

Attorney General Sides with Marriage Equality

2008-12-19T18:50:00-08:00

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.

Prop 8 Defenders Bring Out Big Gun

2008-12-19T16:05:22-08:00

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).

Kennard Conundrum?

2008-11-26T13:31:36-08:00

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.

Marriage & Equality Rights to Return to California Supreme Court

2008-11-19T14:45:39-08:00

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.

Court Lets California Constitution Amendment Fight Continue

2008-07-16T15:16:36-08:00

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.