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Some Thoughts on Today’s Oral Argument in the Prop 8 Appeal

December 6th, 2010 3 comments

Earlier today, I live-blogged the argument to a Ninth Circuit panel in Perry v. Schwarzenegger.

Now, with dinner and a ridiculously difficult swim behind me, and the kids in bed, here are some observations about what I heard (and saw in the judges’ faces) during the argument:

(1) The court seemed much more interested in the unique facts of California’s marriage equality/Prop 8 situation than in reaching a broad decision about whether the U.S. Constitution confers a right on same-sex couples to marry. Judges Hawkins and Reinhardt, especially, kept encouraging Ted Olson to take a big — but incomplete — victory, declaring Prop 8 to be unconstitutional, but avoiding the deeper question of whether the state can ever deprive its gay and lesbian citizens of the right to marry.

Here’s the path to doing so: In the 1996 Supreme Court case, Romer v. Evans, the Court struck down an amendment to the state’s constitution that effectively walled gays and lesbians off from any legal redress for discrimination. As Justice Ginsburg pointedly noted during argument, under the state’s argument, any LGBT state resident could be denied the right to borrow a book from the public library just because of sexual orientation, and would have no redress. This, the Court said, no state may do. It’s hard to find an action that strikes more directly at the heart of the equality principle, and Romer famously began with a quote from Justice Harlan’s eloquent dissent in Plessy v. Ferguson: “The Constitution neither knows nor tolerates classes among citizens.”

Reinhardt and Hawkins made ample use of Romer, strongly suggesting that Prop 8, by taking away a right that the state’s supreme court had already deemed fundamental (earlier that same year, 2008), created for LGBT citizens a second-class standing, by the name “domestic partnership.” And given that the domestic partnership confers all the rights of marriage but withholds the name, it’s hard to avoid the conclusion that the enactment is motivated by anything other than animus towards gay and lesbian couples.

There’s something paradoxical about this, of course (as I’ve noted in a law review article, The Short, Puzzling(?) Life of the Civil Union) — a state, such as California, that’s gone all the way up to marriage for gays and lesbians while withholding the word is, under this approach, more vulnerable to challenge than a state like, say, Florida, that has no state-wide protection for gays and lesbians. Indeed, Charles Cooper (attorney for the Prop 8 proponents) called this kind of analysis “perverse.” But it might carry the day, if the court finds that at least one of the Prop 8 defenders before it has standing. (See (3), below.)

(2) None of the substantive arguments in favor of Prop 8 appeared to have much traction with the court, except with Judge Smith. I’m not oversimplifying to say that the argument was really about procreation — particularly, accidental procreation — and little else. That’s all they had once the court wouldn’t stand for the argument that “the people” should get to decide to continue restricting marriage to opposite-sex couples because — well, because marriage has so far been restricted to opposite-sex couples.

(3) I wouldn’t be completely surprised if the court finds that the Prop 8 proponents have no standing; that’s not what I’m expecting, but it could happen. The questions on standing were pointed, withering, and perhaps decisive. I’ll leave further analysis of this point to those few experts in procedural constitutional law who have thoroughly digested the case law on this issue. (Some good ones are linked here.)1

(4) There’s much, much more to come. The court even suggested that the case might for a time be diverted to the California Supreme Court to resolve an issue central to standing. Whether or not that happens, there will still be an appeal by the losing side to the full Ninth Circuit (called an en banc hearing), a likely appeal to, and decision by, the U.S. Supreme Court, and then even a remand (possibly) to the trial court — but not to Judge Walker, who is about to retire.

———

All things considered, I think the court would be wise to limit its ruling to the unique facts and circumstances of Prop 8 (and here I’m assuming that the case will survive the appeal). Here’s why:

Justice Kennedy, who holds the balance of power, would be much likelier to agree with a more cabined holding. And setting the case in the context of Romer would appeal to him; after all, he wrote it.

If the Supreme Court does throw out Prop 8 — without deciding the broader question of marriage equality, once and for all (or as “once and for all” as the Court gets) — then the gigantic, bellwether state of California will soon be issuing millions of marriage licenses to gay and lesbian couples (as well as eliminating needless complications that have tied courts up when dealing with transgendered folks) and it will become clearer, faster that the Earth didn’t spin off its axis. More states would then follow, more quickly, and before long the issue will become so clear — if not plain dumb, a waste of time and energy for all but the few most zealous oppositionists — that the Supreme Court would face little to no backlash in calling all committed, loving couples into the constitutional embrace of full marriage equality.

  1. Note: This link wasn’t working; now, it should be. Sorry for the glitch.

This Won’t Help

April 11th, 2010 No comments

Issues involving the proper and respectful treatment of transgendered people are inherently difficult in a few situations. A recent story on FOX News (hardly a trustworthy source) about a proposal by the Maine Human Rights Commission to extend the ban on discrimination against the TG community to virtually every school-related context can’t be the best approach. If ultimately adopted, the guidance document would recognize no criteria for deciding when a student’s non-conforming gender identity should or should not be recognized; require the school to allow the student to compete in sports with members of the chosen (as opposed to birth) sex; and require the schools to “figure out” how to accommodate privacy concerns.

Is is enough for a student to simply announce, without more, a chosen gender? Maybe, because the document doesn’t require any particular “test” or even “factors” for deciding the question, and gives school officials only this unhelpful guidance for deciding what to do:

[I]f a school has an objective basis to question whether a student’s gender identity or expression is bona fide, it may ask for information to show that the gender identity is sincerely held. No particular type of information (such as medical) may be required.

This policy, however well-intentioned, is likely to lead to exactly the kind of nastiness it’s trying to avoid. In its effort to avoid the essentializing impulse of rules and laws that declare, brainlessly, that one’s sex at birth determines one gender identity forevermore, the Commission has simply thrown up its hands. But surely this isn’t the right answer. Should a college athlete, born male and with no hormone treatment or surgery be able to compete against women? Unless we’re talking about the University of Connecticut’s women’s basketball team, this isn’t fair (and would be poor sportsmanship, to boot).

The Commission deserves credit for trying to show respect for one of the most horribly vilified and mistreated groups of people around. But just as tests have been developed for all kinds of other difficult calls, some kind of criteria need to be applied here, too. Otherwise everyone loses.

“I’m Convinced that Lesbians Can Be Made”

June 29th, 2009 1 comment

Late last week, Delaware concluded a decade-long struggle, finally enacting the most basic anti-discrimination protection for gays and lesbians (but not the transgendered). The Governor is expected to sign the measure soon, thereby making Joe Biden’s home state the 21st state to offer workplace protection. The legislation also protects against discrimination in housing, public accommodations, and insurance.

The bill sailed through both chambers with broad, bipartisan support. This would have happened years ago had the measure been permitted to come to the floor of the State Senate for a vote. But one state senator had been able to kill the bill in committee again and again. It took his death to get the bill assigned to a different committee, where it was unanimously  voted forward to the full Senate.

It’s probably too easy to see the senator’s death as a metaphor for the passing of the kind of view that would deny basic workplace protection to gays and lesbians, but there’s something to it. Yet we need a few more celestial bodies to slam into the earth to vanquish all of the dinosaurs: Think about the fact that in a majority of states, one can still be fired or denied housing simply because of one’s sexual orientation or gender identity.

While the levers of power are tough to move, the vox populi is well past this issue. Overwhelming majorities of Americans support such non-discrimination laws. In large part, this support comes from the relatively recent recognition that sexual orientation is either genetically determined or so foundational to personal identity that it can’t or shouldn’t be changed. The ex-gay movement is all but an ex-movement by now, as more and more people live or work with openly gay men and lesbians, and understand that sexual orientation is as deeply rooted for them as for the straight majority.

Not state senator Robert Venables, though, who uttered the imperishable line that I’ve used for the title of this post. What “convinces” him that “lesbians can be made”? And does he think the same of gay men? Who cares? And even if he’s right(!), what difference should that make? He and the tiny minority of “no” voters represent the selvage of a view that was ascendant just a generation ago.

In desperation, opponents attempted to tack on several amendments, including one that would have effectively eviscerated the legislation by allowing reasons of belief or conscience to trump the anti-discrimination protection. This went nowhere.

As I prepare a series of posts on the new push to affix religious exemptions to marriage equality legislation, here’s a teaser: If we’re going to allow a broad religious exemption to allow discrimination against gay couples in connection with their wedding ceremony and surrounding events, why stop there? Why not allow religion to trump equality in the broader society? Thus far, there’s been little effort at systematically addressing this important issue by those who favor these broad religious exemptions. But the question can’t be avoided.