CruzLines

"Should I Stay or Should I Go?"

2008-06-04T09:27:14-08:00

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.

"It Doesn't Matter Your Opinion"

2008-05-28T10:28:11-08:00

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.

I'm Getting Married in the Morning

2008-05-15T10:05:00-08:00

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?

2008-05-14T11:44:00-08:00

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.

Tea Leaves and Sympathy

2008-03-11T22:54:21-08:00

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.”