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.

DC Council Introduces Marriage Equality Bill

2009-10-06T20:13:00-08:00

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!

DC Council Introduces Marriage Equality Bill

2009-10-06T20:12:12-08:00

LGBT Advocacy Groups Excluded from Suit Challenging Prop 8

2009-08-19T12:50:16-08:00

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.

Portugal's Marriage Exclusion Upheld

2009-07-31T17:04:20-08:00

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.

NY Assembly Votes for Marriage Equality

2009-05-13T08:32:02-08:00

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?

Marriage Equality In Maine.

2009-05-06T10:17:24-08:00

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.

Maine joins move towards marriage equality

2009-05-05T11:37:04-08:00

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!

New Hampshire Takes Step Toward Marriage Equality

2009-04-29T13:56:00-08:00

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]

Marriage Recognition in District of Columbia

2009-04-07T12:47:47-08:00

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!

Marriage Equality in Vermont

2009-04-07T08:19:38-08:00

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.

Marriage Equality Comes to Iowa

2009-04-03T07:29:00-08:00

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.

Sweden to Allow Same-Sex Couples to Marry

2009-04-01T08:17:14-08:00

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.

Pro-Marriage Equality Initiative Filed

2009-03-20T22:43:19-08:00

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."

"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.

"Marry Me a Little"

2009-03-03T08:45:50-08:00

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.

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).

The United Straights of America?

2008-12-18T22:22:56-08:00

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.

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.

Californians Enshrine Discrimination in Constitution

2008-11-05T07:07:40-08:00

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.

Senator Feinstein Condemns Proposition 8

2008-10-28T14:16:09-08:00

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."

Oct. 22 Poll Shows Prop 8 Losing Among Likely Voters

2008-10-23T07:31:00-08:00

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]

Connecticut Constitution Protects Same-Sex Couples' Right to Marry

2008-10-10T12:08:00-08:00

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.

Prop 8 Foes & Fans Raking in Big Bucks

2008-07-31T08:58:59-08:00

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

2008-07-26T08:26:00-08:00

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

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

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.

Welcome to the (Marriage) Club, Norway

2008-06-17T16:40:03-08:00

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.