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Reaction to Prop 8 Decision (Analysis to Follow)

May 26th, 2009 No comments

The California Supreme Court just dropped the bomb whose ticking has been growing louder over the past few months. By a 6-1 decision (with Justice Moreno in lonely dissent), the court decided that Prop 8, the ballot initiative that revoked the right of same-sex couples to marry, was a valid amendment to the state’s constitution.  The decision was widely (if not universally) expected, as was the court’s other (unanimous) holding, finding that 18,000 or so marriages that took place last year before remain valid. I’ll soon have an analysis of the ruling especially intended to be useful to non-lawyers.

While I’m still trying to get a copy of the decision, I can’t help reacting.

I had expected to feel maybe a second-level order of disappointment. After all, the biggest blow was the decision of California voters to remove, by constitutional amendment, a fundamental right that the court had so eloquently and persuasively articulated. And the court would be facing enormous pressure to support “the will of the people,” a point that was made, repeatedly, during oral argument in March.

Yet I’m overcome by a profound sense of grief. The courts are supposed to be on the side of justice and protection of the rights of minorities. This time, the California Supreme Court — admittedly with precedential justification — blinked. And I’m reminded again that people get to vote on my rights. I don’t think I’ll ever get used to that, or be able to regard these kinds of setbacks as “second-level disappointments.” Well, back to the political process — like it, or not.

Update: I’ve now slogged through all 150 pages of the majority and the two concurring opinions. I’ll post my “legal analysis for the layperson” shortly.

Categories: Marriage Equality, Proposition 8 Tags: , ,

Prop 8 Decision Set for Tuesday, May 26: One More Thought

May 22nd, 2009 No comments

Well, this time it’s really happening: Next Tuesday, we’ll return from the holiday weekend to face the (probably funereal) music, as the California Supreme Court has announced the filing of its opinion in the Proposition 8 case for that date (see embedded link).

Just a couple of days ago, speculation that the opinion was about to issue caused me to issue this post. There, I suggested questions that the court would likely need to answer in deciding that the ballot initiative process had been properly used in passing Prop 8, which  purports to amend the state’s constitution to deprive same-sex couples of a right — marriage — that the court had just stated was “fundamental.”

To those thoughts, let me just add a quick supplement here. It will be interesting to see how the court handles the question of domestic partnership — the marriage equivalent without the name or the social approbation —  that remains in effect in California after Prop 8. In their decision in In Re Marriage Cases, the justices weren’t gulled by the argument that domestic partnership was “just as good” as marriage. Although there are many problems with the status, the court leveled the most telling criticism at it: If it’s just the same thing, why  go to the trouble to create it? The whole idea is to fence same-sex couples out, thereby purposefully creating a class of second-class citizens. In one sense (not a practical one), this is even worse than a complete denial of marriage benefits to same-sex couples, which at least have been supported with legal and social arguments (however weak).

Yet during the oral argument in March (I live-blogged it here), at least one Justice (Kennard) seemed to suggest that Prop 8 might be less objectionable because it doesn’t remove the rights of marriage, “just” the title. Will the court stand on that point? If so, what was all the shouting about last year?

Look for a summary here shortly after the opinion issues.

Prop 8 Decision to Come Down Tomorrow? Here’s What to Look For.

May 20th, 2009 No comments

With a limited number of days remaining in which the California Supreme Court can hand down its monumental decision regarding the validity of Prop 8, the first murmuring has just been heard that tomorrow may be D-Day. (The story notes that police barricades are being moved into place in San Francisco, likely in anticipation of street actions there — protests or celebrations.)

As I live-blogged the argument, it seemed quickly evident that the court was going to uphold Prop 8 as a permissible amendment to the state’s constitution, but let stand the many thousands of marriages that had occurred during the several months of 2008 when same-sex marriages were legal. I still believe that’s what going to happen, but with all that’s been going on since then, there is some reason to question that outcome. Here are a few questions that the court may answer whenever it does issue its ruling:

(1)  Things have changed since the oral argument, and at a speed no one could have predicted. Iowa, Vermont and Maine — soon to be followed by New Hampshire, it seems — now have marriage equality. Will the court acknowledge these developments, and, if so, what impact will they have on the justices? My guess is that the court will express sympathy or empathy for the gay community (something no U.S. Supreme Court Justice is supposed to have, according to this fool) and celebrate these developments, but place its trust in the people to eventually extend the promise of equality — after all, the New England states mentioned above have achieved marriage equality legislatively, not by court order. This approach may make the court (and others?) feel better about what it’s doing.

(2) Whither willy-nilly? During the argument, Justice Kennard kept asking counsel opposing Prop 8 whether the court could “willy-nilly” disregard the will of the people. (In fact, she used the expression so often I was left wondering whether she’d just learned it.) I took her to mean that calling Prop 8 an impermissible “revision” to the state constitution rather than an allowable “amendment” would be an unprincipled, haphazard thing to do. But even Ken Starr, arguing for Prop 8, conceded that the case raised the unique issue of depriving a suspect class of a right that the court had declared fundamental. Thus, overturning it wouldn’t be “haphazard.” One could argue that Prop 8 really does constitute a fundamental change to the state’s constitution by restricting the court’s ability to interpret it. This argument blends almost seamlessly into the related point that Prop 8 purports to disrupt the established separation of powers — courts are the interpreters of constitutional guarantees. (The argument is summarized, and the brief linked, here. Scroll down to April 28.)

(3) What will the court say about taking rights from a class that, just last year, it  had declared to be entitled to the highest degree of protection? This question is obviously closely tied to the last one. The court’s decision to treat sexual orientation as a “suspect class” that triggers the highest level of judicial scrutiny (suspicion, really) was based on its finding that the gay community had historically been subject to discrimination, that laws treating the community differently bore no relation to the ability to contribute to society, and that gays were historically powerless.  Do subsequent developments make those observations less true, and reduce the need for heightened protection? If not, then the class is still suspect, and the rights are still fundamental. Can a simple majority vote change that?

(4) Another related question is whether any of the justices who opposed marriage equality last year might change their vote. This seems unlikely, but a justice who is especially respectful of stare decisis —  which says, in layperson’s  terms, that the court should respect its own precedents, overruling them only under exceptional circumstances — might look at matters this way: “I didn’t think that sexual orientation called for heightened scrutiny, but we (over my dissent) held that it did. That’s now the law and I’m bound to respect it. And if sexual orientation is a suspect class, and if same-sex couples have a constitutional right to marry, which we also held (again, over my dead… — I mean, over my dissent), then that right can’t be taken away so easily, if at all.”

Don’t expect this to happen, though. Stare decisis is like a raincoat that justices don and doff according to the prevailing weather.

(5) How ugly is it going to get?

(I’ll be back with a lay summary of the opinion shortly after it’s issued.)

Update: It’s now been confirmed that the opinion will not issue tomorrow. The court must issue the opinion within the next two weeks, though. I will supplement this post shortly before the decision issues, and then again to summarize and reflect on the opinion.  

Dignity: Who Has It, and Why Do We Care (or, Dignity, Schmignity?)

May 11th, 2009 No comments

How much would I care about my dignity if no else had any, either?

The question scarcely makes any sense, because dignity is valued only in relation to others, of course. It’s closely related to “esteem,” a regard in which most of us want to be held; I’d rather be the “estimable me” than not.

The matter of dignity came to mind earlier today when reading an account of yet another marriage equality update, this one at the New York City Bar late last week.  (H/t Michael Ginsborg) Towards the end of the program, Katherine Franke, a Columbia law professor, was sounding a cautionary note about the amount of time and effort devoted to the issue. One problem with this “marriage-equality-eats-through-everything” approach is that it runs the substantial risk of marking for inferior treatment other forms of family. That’s right, and as Nancy Polikoff, in particular, has eloquently argued, we need to “value all families,” however defined, and to create structures that respond to people’s real needs. (BTW, here is her analysis of what’s going on in D.C., complete with discussion of parts of related District laws that “value all families.”)

To Franke, the idea that marriage “ennobles and enriches human life” is limiting: “[T]o cloak marriage in this kind of teleological frame that all of us as adults should hope and aspire to obtain, communicates something that I think violates the movement that I joined many, many years ago.” Perhaps we can fuse Polikoff’s insights to Franke’s caution to state that marriage is just one of many ways to achieve one’s own authenticity, and that the continued trumpeting of “all marriage, all the time” risks drowning out that basic insight.

Then, though, Franke said something else that seemed to me just….wrong. She expressed a strong preference for marriage equality decisions that focus on equality, finding the focus on “dignity” that comes with fundamental rights analysis to be troubling. She cited the California and Massachusetts decisions in making her point. What she’s missing, though, is that both courts expressly connected fundamental rights and equality. This connection especially permeates In Re Marriage Cases, the California decision.

This isn’t the place to get into an extended discussion of the text, but a few passages illustrate the point. For example: “one of the core elements embodied in the state constitutional right to marry is the right of an individual and a couple to have their own official family relationship accorded respect and dignity equal to that accorded the family relationship of other couples.” (183 P.3d at 444.)

Recall that the California Supreme Court was making its decision in a state that already had a domestic partnership law that conferred substantially the same benefits on same-sex couples as marriage does on opposite-sex couples. So, “in the present context, affording same-sex couples access only to the separate institution of domestic partnership, and denying such couples access to the established institution of marriage, properly must be viewed as impinging upon the right of those couples to have their family relationship accorded respect and dignity equal to that accorded the family relationship of opposite-sex couples.” (Id. at 445.) The court went on to remind us that this thoroughly discredited idea that “separate is equal” has been tried, and rejected, in the case of race and gender.

Perhaps Franke was simply making the point that marriage equality is just the first step in a more comprehensive assessment of legal fairness and social significance, and her point was lost in translation from panel to report. In any case, it’s worth remembering that courts can and do only address the controversy before them; in so doing, they’re right to insist that likes be treated as likes, and to fuse the related pillars of equality and basic rights.

You’ve got dignity. Where’s mine? And then, what about everyone else?

Vermont Follows Iowa! (But in a Very Different Way)

April 7th, 2009 2 comments

I returned from class to learn that the Vermont legislature has just overridden Governor Douglas’s veto of marriage equality legislation. 100 votes in the House were needed for the override; exactly 100 were obtained. (The Senate’s override was by an overwhelming majority.) Now, we have the first state in which marriage for gay couples has been achieved by a legislature acting without being required or pressured to do so by a court. In this post, I offer some background and a few thoughts about what this might mean.

First I have to say that I was stunned. With all attention, including my own, focused on Iowa, I didn’t realize that the governor’s veto had already taken place (the Vermont house voted on the bill just last Friday, the same day as the decision in Iowa), much less that the override votes were taking place. Nor did I realize that there was a good chance of overriding the veto: When the bill passed, it did so with only 95 votes. Somehow supporters found the five additional votes they needed.

So Vermont now becomes the fifth state to recognize marriage equality.1  But it was the first to move very substantially in that direction. In 1999, the Vermont Supreme Court decided Baker v. State, the first sort-of-successful marriage equality case. The five justices were unanimous that same-sex couples were entitled to the benefits of marriage, but stopped just short of requiring the legislature to grant them the right to marry.2 Instead, they held, the law-makers might choose to provide access to some parallel institution conferring all or substantially all of the benefits of marriage — but not the label. Thus was the civil union born.

In an earlier post, I wrote tongue-in-cheekily about the significance attached to this label, wondering whether same-sex couples might be entitled to “mariage” — with one “r” — since the word “marriage” seemed to be the problem. But from a purely political perspective, the court’s decision turned out to be brilliant: The civil union didn’t generate the kind of oppositional heat that “marriage” would have, gave straight Vermont citizens some time to settle into the truth that same-sex couples’ unions didn’t threaten theirs, and eventually led to a commission report finding that civil unions weren’t leading to the full equality that the Vermont court had hoped for.  Ten years later, marriage equality is achieved.

The significance of equality through legislative means can’t be emphasized enough. One of the most effective (though wrong) criticisms of the push for marriage equality is that it’s been achieved through the courts: “activist judges,” “fascists in robes,” and “philosopher kings” have pushed this on the public, according to the opposition. What will they say now?

Some of the most extreme complain that the legislature isn’t democratic either, conveniently overlooking the whole notion of representative democracy. Traction, this will  have none. It’s particularly unconvincing in a small state like Vermont, where the state legislators have a great deal of contact with their constituents. Here is the link to this morning’s House vote in Vermont and the few comment that preceded it. Note the respect that both sides urge; one opponent says that, even if he loses, he will, as a Justice of the Peace, respect the law and perform same-sex marriages. Here are legislators who are very respectful and close to the voters.

The California legislature twice tried to enact marriage equality, only to have the governor veto both bills. So Vermont becomes the first state to grant basic equality to gay and lesbian couples; again, without judicial compulsion of any kind. What might it mean? I’m hesitant to say too much so soon, but let me try this: The Vermont move could well energize other somewhat progressive state legislatures to follow suit: the other New England states (especially New Hampshire and Maine); New Jersey; and New York are the likeliest. Once that happens, I think the push for marriage equality in California becomes even stronger; Prop 8 could be repealed as soon as next year, even if, as expected, the California Supreme Court allows it to stand.

And apres California, le deluge.

  1. I’m including California among the five, because equality was recognized for a time. It’s currently on hold pending the Supreme Court’s decision on Prop 8.
  2. One justice wrote that the couples were entitled to full marriage equality.

Iowa Marriage Decision: Further Thoughts and Some Perspective

April 4th, 2009 No comments

With the ramparts crumbling all around them, marriage equality opponents seem to be left with two talking points, which are really cris de coeur, the last howlings of a doomed defense. First, they fall back on their definition of marriage. Thus, the Iowa Supreme Court, in recognizing the marriages of same-sex couples, has spoken an “untruth.” Second,  they tirelessly remind us that, where people get to vote on others’ right to marry, they consistently vote against it (otherwise put, “courts are undemocratic”). The first is an assertion in search of an argument, while the second overlooks what is probably the central function of courts: the protection of minority rights against the vicissitudes of majority will, whim, or prejudice.

When this is the best you can do, you’ve lost the argument.

Of course, the Iowa court’s unanimous decision, portentous as it is, can’t be expected to bring a quick end to the debate. In fact, in the short run it may yet impel a few more states to strengthen their marriage bans by driving them into constitutional concrete. (For reasons cogently developed here, it’s somewhat unlikely that Iowa’s own constitution will be amended in this way. It certainly won’t happen soon.) Nonetheless, the opposition to marriage equality is starting to seem like a last stand. (Remember the Alamo?) Perhaps this commentator is right in thinking that a “tipping point” may just have been reached:

Moving from politics back to law: The Iowa court shoved the debate towards conclusion with its brisk and effective dismissal of the state’s arguments. I was especially struck by how the court, echoing the California Supreme Court’s decision from last year, gave no credence at all to the vague speculation that marriage equality will somehow harm the institution “in the long run.” And by now courts have seen just about enough of the  “virtual equality” promised by the civil union — Iowa would have no truck with it, and all three of the states that currently have it  (Vermont, New Jersey and New Hampshire) are likely to take the marriage equality plunge very soon.

The court’s willingness to address the religious argument directly will prove important, too. I read the point to be this: “We  respect religious opposition to same-sex marriages, but you need a properly public, secular reason to exclude people from a privileged institution.” That is a thoughtful and respectful response to citizens who sincerely oppose marriage equality for religious reasons, or because of a more general unease. Both of these sentiments were poignantly reflected in the comments of one Iowan:

“Diane Thacker’s eyes filled with tears when the ruling was read to a crowd that had gathered outside the Iowa Judicial Building.

‘Sadness,’ she whispered. ‘But I’m prayerful and hope that God’s word will stand.’ Thacker said she joined a group of gay-marriage opponents ‘because I believe in the marriage vow. I can’t see it any other way.'”

With respect to Ms. Thacker and so many like her, do we really want to deny basic equality on this kind of basis?1 Here’s a quote I’ve always liked, from a California tort case:

“No good reason compels our captivity to an indefensible orthodoxy.”

Finally, I find myself asking yet again: How much energy can opponents justify expending on this issue? In Afghanistan, a law is passed that sets back women’s rights (and arguably permits marital rape); in Iraq,2 gay men and condemned are killed for their “perversion.” I could go on and on.

Yet stopping the marriages of gays and lesbians is worth all of this time and effort? Go build a house, or something. You’re not going to stop marriage equality in any case.

  1. This, by the way, is a “rhetorical  question.”
  2. Nb., the nation we liberated from a dictator.

A Few Uninformed Guys on the Corner of Main and Elm

March 29th, 2009 1 comment

It’s only a matter of a year or two until some state uses the legislative process to create marriage equality. Vermont, New Hampshire or Maine: any of these would be a good guess, but the states’ governors have all stated (expressly or  implicitly) that they would veto such legislation. (There may or may not be the votes in Vermont to override such a veto). The  other two real possibilities are New York and New Jersey; New York already recognizes same-sex marriages from other states, while New Jersey has: (1) a civil union law; (2) a governor who recently stated he would sign a marriage equality bill if  it came before him; and (3) a reasonably progressive legislature.

When that day comes, though, don’t expect the anti-equality forces to admit that “democracy has prevailed” over a judiciary consisting of those Professor Lino Graglia of University of Texas Law School has angrily called “philosopher kings.” By now it is comically apparent that the anti-marriage gang favors — anyone who’s with them, intellectual honesty be damned. My perceptive colleague Robert Justin Lipkin made this  point eloquently a few years ago, and subsequent events have proven him more correct that he probably could have imagined.  

Leading the Inconsistency Brigade is the all-over-the-place Maggie Gallagher, whose tactics I discussed in an earlier post. Now, having excoriated the Massachusetts Supreme Judicial Court and the California Supreme Court for requiring marriage equality (the Mass court was wrong for applying a “rational basis” standard and finding that there wasn’t one for excluding same-sex couples from marriage; the Cal court was wrong for applying a higher level of scrutiny — what’s a poor court to do?), she finds fault with the legislative process in the New England States:

“[Marriage equality] is more a creature of special interest politics and legislative dealmaking. These are small states which can be influenced by fairly large amounts of outside money coming in. And it’s very hard for regular people to feel that they can have a voice on this issue in these states.”

Oh, the problem isn’t just the courts — it’s these darn small states! Hmm….wasn’t the tremendous influx of $$$ in California monumentally important (to both sides) in the Prop 8 fight? You  know, the not-so-small California (home to about one in every eight Americans). And I would have thought that people had more access to their government in the small states, what with the sort of “town hall” meeting style so closely associated with Vermont that it was popularized in Newhart.

It’s just too bad that the constitutions in these fly-speck states are so darn hard to amend, fumes Gallagher. She conveniently overlooks the fact that, when voters in Connecticut recently had a chance to call a constitutional convention that could have negate that state supreme court’s very recent marriage equality decision, they passed. Moreover, if recent poll numbers from Vermont (good summary and analysis at this site)  are to be believed, the “direct democracy” that Gallagher apparently favors won’t do the anti-equality forces any good in that state, anyway. Vermonters favor marriage equality.

This is all about tactics, then. Am I any more principled? Here’s my position: I think that matters of civil rights — especially where minorities are concerned — are for courts, and indeed go a long way towards justifying courts. Equality and fundamental rights go hand-in-hand in the case of marriage, because it’s  fair to require the majority to hold themselves to the same rules and definitions of what counts as “fundamental” as everyone else; simply put, if  marriage is a fundamental right, equality demands that it be offered to all consenting adult couples, neutrally. (And if that’s too much to bear, the state shouldn’t be in the marriage business.)

Politically, of course, it’s better if marriage equality comes from legislatures; courts, precisely because of their anti-majoritarian role within our constitutional scheme, are easily attacked as robed dictators. But courts are the check that’s needed,1  as anti-equality forces themselves usually recognize in other contexts, such as interracial marriage. [Gallagher: “The ban on interracial marriage was about keeping people apart; ‘this’ (opposing marriage equality) is about getting people together.” Nice sound bite, but inane. Which people, exactly, are going to be brought together by banning same-sex couples from marrying?)]

As Lipkin has put it:

“[T]hose opposing same-sex marriage should choose, once and for all, which branch of government is the proper forum for deciding this issue, or embrace both and cease carping at the courts when they enter the controversy. What they should avoid, at all costs, is adjusting their constitutional stories for result-driven purposes. Elementary decency in public debate demands as much.”

Or we could let the issue be decided by a few uninformed guys on the corner of Main and Elm.

  1. That isn’t to say, of course, that actual judges are reliable guarantors of equality. As a striking and distressing example, consider the flap over Justice Scalia that Barney Frank kicked off by calling the conservative justice a homophobe. The L.A. Times has a solid take on the whole thing.

Three Acts on Prop 8: III (A)

March 6th, 2009 No comments

So here we are: It appears very likely that, on or before June 5, 2009, the California Supreme Court will uphold the “right” of California voters to pass Prop 8, taking away a right — the right to marry — that the court had barely more than a year ago deemed fundamental. (Under California law, the court must decide the case within three months of oral argument.) This was a substantial risk that those filing the suit took, and many believed that this legal terrain would have been best left unmapped.

I don’t agree, because I think that the court’s decision, assuming I’m right in my prediction, will underscore that we have substantial work to do to win  “hearts and minds.” The reality that this struggle will continue to be difficult hit home immediately after last November’s elections: While they’re already being forgotten in the California-consumes-all-energy frenzy surrounding Prop 8, initiatives in several other states were also blows to the marriage equality movement. In Florida, for example, more than 60% of voters uncharitably passed an amendment restricting not only marriage rights but other forms of relationship recognition. It remains to be seen how broadly the law will be interpreted.    
But there is plenty of good news, too. As the always eloquent and perceptive Hendrik Hertzberg observed at the time, these measures had the feel of a “last stand.” His piece is required reading for those inclined to despair at recent (and upcoming?) developments and setbacks. Marshalling the pile of relevant polling data available as well as marriage developments in Massachusetts and Connecticut, he argues that the public’s view of gay rights and relationships is moving inexorably in a progressive direction.

He’s right, and things have only moved more briskly since last November. Indeed, Prop 8 may ultimately be remembered not because of its radical removal of fundamental rights from a “suspect class,: but because of the cascade of dormant activism it unleashed. In a post later today, I will offer a review and assessment of the legal, social, and political work that has been done since the dawning of the Age of Obama. As you’ll see, things are getting better.   

Three Acts on Prop 8: II

March 5th, 2009 No comments

Well, perhaps I should have expected this: The overwhelming demand for access to the streaming video of the oral argument on Prop 8 means that I couldn’t get on line for quite some time. I just did and I’ll try to catch us up.

Within a few minutes, this looks quite grim. Two of the justices who had voted with the majority to are all over amici attorney Marshall, telling him that the California Constitution gives the voters quite broad ability to amend their constitution, and that Prop 8 is only “a limited exception” to equal protection.Now the discussion is about abolishing marriages in favor of civil unions for everyone. The attorney makes the argument that “nomenclature matters” citing Justice George’s opinion in the earlier case and answers a question by Justice Chin, to the effect that the state, if it’s going to get involved in the “marriage business” needs to do it equally.

The argument has moved to a discussion of the precedent, with Justice Werdeger asking whether there’s ever been a case where a fundamental right has been taken away — and the answer is no. She floats the idea that even if this isn’t a structural revision, it takes away fundamental rights and this IS a revision even if it doesn’t change the basic separation of powers. Justice George slams this, noting that busing and affirmative action referenda have been upheld and these affect fundamental rights (even though the revision v. amendment issue didn’t come up there).

Justice Corrigan tries to boil down the argument, suggesting that the “No on 8″ forces are really arguing that any time you want to take a fundamental right away from a suspect class, it’s a revision. That simple. Justice George, who is up for reelection within the next couple of years, questioned whether you could grant a fundamental right through amendment but only take it away through revision. “Is it a one-way street?” Yes, said the attorney.

Justice Kennard finally got to the issue of retroactivity. Are the marriages performed before Prop 8 passed valid? Language in the Prop 8 materials says that “whenever and wherever performed” won’t be recognized. Attorney concedes that this could be read to invalidate marriages, but that (prodded by Kennard) this language is buried in the materials and shouldn’t suffice to overcome the presumption of non-retroactivity.

Next comes an attorney Stewart, representing the cities and towns and we’re back to retroactivity. She says that the language has to be unequivocal. She then fields a softball question suggesting due process problems with invalidating marriages retroactively. Kennard jumps in to help, reminding Stewart that the “whenever and wherever performed” is buried in the fifth paragraph of the rebuttal argument. Her vote on this issue is clear (to me). George wants to test the proposed test for revision proposed here. Asks about same-sex schools, or busing, and whether the proposed rule would render them revisions. Stewart stands firm and says yes.    

Stewart is devastating on the foundational importance of the equal protection guarantee as a compact “to treat each other equally.” Kennard disagrees, says that equal protection is evolving, unlike the structure of government. Stewart says that the fact that we interpret them in light of what we know at a particular time doesn’t make them unimportant. (Well, duh! But are they foundational? She didn’t really answer that.) Justice Kennard noted that sixty-three briefs have been filed, many stating that those justices who agreed that marriages must be granted to to same-sex couples must find Prop 8 invalid. She disagrees. Here, the issue is different: We have a pretty well-established body of law on what’s a revision and what is not. The cases don’t give strong support to the petitioner’s position, she says flatly. It simply overrules one “aspect” of the marriage cases. (Huh?) Cites other cases from other states supporting the position that this is amendment, not revision.

Stewart: This is fundamental. Majorities can protect themselves. She gets deeply into the statements of delegates in creating the state’s constitution, to powerful rhetorical effect.Now comes Mr. Krueger representing Attorney General Gerry Brown,  who has taken the unusual position that it doesn’t matter whether this is a revision or an amendment: It is simply invalid because beyond the power of the voters to remove a fundamental right. Here, I have lost the feed and will pause for air until I get it back (soon, I hope).   

Let’s see, I’ve missed about five minutes. Now Krueger is saying that the court interpreted the right to liberty in a way to make amending it to take this right away impossible. Now George is reading from the constitution’s description of the inalienable rights, including liberty. How do we define it? What’s the consequence of calling it “inalienable”? Krueger: We call it inalienable because it came first within the constitution. George: It’s just a matter of timing? Privacy, for example, came later. Is that less important? What about the right to fish?? So what is the right that can’t be removed? Krueger: The right to liberty.

Baxter is now asking about the death penalty situation, where the court held that capital punishment was cruel and unusual and against the “dignity of man” and the amendment process was validly used to effectively overrule that decision. This attorney for the state is clearly flummoxed now, but regains his footing somewhat. But I’m not sure Baxter (or anyone else) was convinced by his efforts. Krueger is having trouble. Not sufficiently versed in the case law. Does make the case that revisions can’t be used to take away inalienable rights. Interesting point is that the intervenors are disagreeing with the “natural law” argument — since so-called “natural law” seems to ground most of the arguments against same-sex marriage.        

Justice Kennard goes back to the breadth of the amendment power as provided by the California constitution. She’s getting annoying at this point, with endless non-questions and simply reiterating her point. Over. And over. And over. Krueger patiently explains that — yes, of course the people have the power to amend or revise the constitution.

I don’t think we’re going to get anything new thrown at the anti-Prop 8 side at this point. The argument is almost two hours old, and we still haven’t gotten to the attorneys supporting Prop 8. Unless the justices are equally scathing against the other side, I don’t see much chance that the court will toss out Prop 8.

I spoke too soon. Here’s something new. What if Prop 8 had passed without the Marriage Cases coming first? Krueger: Same analysis, but longer because first we’d have to argue that same-sex marriage was a fundamental right.

How do we know a fundamental right?, one justice asked. This is amazing to me given the court’s decision in the Marriage Cases. And Justice George makes it worse, diminishing the importance of his own decision in the Marriage Cases, suggesting that all one would have to do is simply “characterize something as a fundamental right” to say that it couldn’t be amended. But it’s not that simple, as the Marriage Cases state. The court certainly can discern what is a fundamental right. [This may be worth a whole separate post.]

Now they’re arguing about whether there’s a difference between inalienable and fundamental rights. And Justice Corrigan says: “Doesn’t your position boil down to the view that this court should throw out any amendment that it doesn’t like?” No. This court has said that the rights of same-sex couples to marry is fundamental and the state has no compelling reason to abridge it.

OK. Finally, the other side. Here comes the Evil Death (Kenneth) Starr. He starts by quoting former Justice Tobriner to the effect of the right of the people to change the constitution. He then sucks up to the justices by lauding their jurisprudence. Werdeger shuts him up, at least for a minute, by asking why this isn’t a revision given the far-reaching implications.

Starr: This would be unprecedented. He admits that this precise issue hasn’t come up because of the suspect classification issue. Goes through simply naming cases. Only a revision if it changes the fundamental structure of government — not if it takes away rights.George: What if there were a specific amendment that deleted the right of free speech? OK to do by amendment?

Starr: Even there, while it is unthinkable, not a limitation on the power of amendment. So this would be OK. Cites Justice Mosk’s concurrence in the death penalty case, in which he said that even though what the people did in restoring the death penalty was “macabre” and “unenlightened” he couldn’t stop it and it was valid as an amendment.

Werdegar:   Could a Romer v. Evans type of amendment have been OK?

Starr: Yes. People are sovereign and can do unwise things, including things “that tug at the equality principle.”

Well, at least he’s clear. This is a very unsympathetic argument. The people can do whatever they want. Any right can be removed by the simple initiative process. It’s only an impermissible revision if it changes the structure of government.

Justice Moreno couldn’t move him off this point.      

Starr goes on about how minor this is. Then he answers Justice Werdegar’s point that this precise issue has never come up, saying that the court has “said it without saying it.” 

Justice Chin comes back to the point about whether the state should get out of the marriage business. It could, says Starr (and might be inclined to do under the equality principle), but it’s not for the court to do. A recommendation is as far as the court should go.

Uh, oh. Here’s another ramble from Justice Kennard. She picks up on the AG’s theory and asks why it shouldn’t be adopted. The theory is too open-ended and hasn’t been used in principled ways. (One case apparently said there was an inalienable right to scalp theater tix.) Would this theory lean too heavily on natural law? Yes, Starr obligingly answered.

Kennard then asked about retroactivity: They’re not void ab initio but they are invalid. Trying to walk a thin line. Chin asks if it’s fair to throw all of this out, when people acted in reliance of what this court said the law was. Corrigan agreed, brushing aside the “swirl of uncertainty” argument that Starr tried to introduce. George: What if age of consent to marriage were raised to 21? Would marriages between 18-to-20 year olds no longer be married? Starr: No they wouldn’t be. But the law has in fact embraced ameliorative doctrines, such as the putative spouse doctrine (don’t ask!).

Corrigan won’t let go: Aren’t these couples entitled, at least as a matter of equity, entitled to rely on the law as we stated it? Starr: They were validly married but isn’t any more. “No longer valid or recognized….”

If I had to guess, I’d say that those married between June and November 4, 2008 will still be married. Going forward, forget it. It’s time to dive back into the political process. I don’t expect a unanimous decision on either issue, but I’d be surprised if either vote is close. (I do think that there’s at least a chance that the retroactivity issue will be unanimous.)

There’s rebuttal, but I will save further remarks for tomorrow’s post. I don’t expect anything revelatory to happen after about two-and-a-half hours.

Three Acts on Prop 8: I

March 4th, 2009 No comments

In advance of tomorrow’s argument on Prop 8, I offer this cautionary tale. My plan for tomorrow is to “blog live” as the oral argument unfolds, at 9 am PST (noon EST).  

News Item from California, November 5, 2008: “Yesterday, the voters of California approved Proposition 8, a measure that takes away the rights of gays and lesbians to marry someone of their own sex, a right that they had enjoyed since May of this year. Ron Prentice, Chairman of ProtectMarriage.com, which supported Prop 8, had this to say in celebration: “This is a great day for marriage. The people of California stood up for traditional marriage and reclaimed this great institution…. Proposition 8…doesn’t discriminate or take rights away from anyone….'”

Reader: Amen to that! “Gay marriage” isn’t even marriage..   

WordInEdgewise: So the voters could have done the same thing to interracial couples and it would have been OK under the California constitution?

Reader: It’s not the same thing. The right to marry is fundamental but it only applies to opposite-sex couples.

WordInEdgewise: Really? Consider this: The California Supreme Court has held that the fundamental right to marry is meaningless if one can’t marry the person of one’s choice. It further stated that denying gays and lesbians this fundamental right violates their right to equal protection of the laws. Finally, the court stated that any law discriminating against gays and lesbians has to be subjected to the same scrutiny as laws that discriminated on the basis of race or of gender.

Reader: Well, if anything it’s a “new” fundamental right. Prop 8 doesn’t affect any other rights.

WordInEdgewise: OK, then consider whether this would be permissible:

News Item from California, 2010:“In a vote that was not as close as had been expected, the California voters once again surprised the bloggers and bloviators by easily passing a ballot measure that amended the state’s constitution to remove the rights of free speech for gays, lesbians, and bisexuals. Maggie Eddings Bryant, spokeswoman for ‘Yes on Prop 4’ celebrated the voters’ wisdom: “Speech has limits, as the voters have demonstrated. And we don’t allow pornography, fraud, or lots of other kinds of speech. Too often, ‘gay speech’ is nothing more than incitement. We need to protect the institution of speech, so that children – who are somehow forgotten in all of this – learn the right lessons about its importance. And remember that we don’t necessarily know who is gay in these metrosexual times, so there isn’t a problem as long as people don’t identify as gay. ‘Don’t ask, don’t tell’ – it isn’t just for the military any more.’”

Reader: “That’s just nutty! A fundamental right is a fundamental right, no matter who’s being singled out.”

WordInEdgewise: “Really? Can’t we say this is just a limited exception, too? And if it is, consider this:

News Item from California, 2012: “In a closely contested vote, the California voters shocked the pollsters and pundits by approving a ballot measure that amended the state’s constitution to remove the right of free speech for all men. Ernestine Bledsoe, spokeswoman for ‘Yes on Prop 1’, celebrated the decision: ‘For too long, the institution of Free Speech has been under assault from a minority promoting their own agenda of coarse speech. We needed to protect the institution of speech for future generations.’“’The No on 1’ forces were furious. Several thousand of them – mostly but not all men – marched in front of the headquarters of organizations that supported the measure. (The men were promptly arrested for exercising the right to free speech they no longer enjoyed.) Bledsoe was outraged by the protest: ‘We are at a dangerous time, when law-abiding citizens feel threatened and intimated for exercising their most precious right – to express themselves at the ballot box. What is happening to our democracy and for the basic notion of respect for opposing points of view?'”

Reader: “That’s crazy! You can’t take away a basic right that way. No court would ever put up with that.”

WordInEdgewise: “I guess it depends on whose ox is being gored.”