Masking White Supremacy

“They reached for tomorrow / But tomorrow’s more of the same”

In its decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), the Republican-appointed supermajority of the Supreme Court held that the use of race in the undergraduate admissions programs of Harvard College and the University of North Carolina was unlawful under Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment, respectively. Among other problems, Chief Justice Roberts’s opinion for the Court in SFFA hides what the majority justices are doing – hides how it is changing the applicable constitutional law, by misrepresenting that law – and its reasons for what they did may rest on what they themselves would call racial stereotypes and/or an unvoiced belief in the superiority of white people. 

The majority justices claim to be applying the rules from Supreme court precedents for evaluating equal protection challenges to race-based affirmative action in higher education admissions. The majority opinion says, using a past tense, that “we have permitted race-based admissions only within the confines of narrow restrictions” (emphasis added). Summarizing, it states: “University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and – at some point – they must end.” While it has the chutzpah to accuse Justice Sotomayor’s dissent (joined by Justices Kagan and Jackson) of disregarding stare decisis and “want[ing]” the Court’s equal protection law “to be different” than its precedent shows it to be and “wrench[ing that] case law from its context,” in fact, the majority is applying new rules, “moving the goal posts” as the dissent puts it at one point.

 

The changes in the governing law the majority opinion wreaks are apparent in its arguments against Harvard’s and UNC’s admissions programs. It contends that the defendant schools’ justifications for their consideration of race in admissions served purposes too “amorphous” to satisfy strict scrutiny – but that reasoning would equally have doomed the University of Michigan law school’s admission policy that the Supreme Court upheld in Grutter v. Bollinger in 2003, a case upon which the majority opinion leans heavily. And the majority’s amorphous purpose reasoning would seem wholly to preclude any use of applicant’s race in admissions, thus necessitating the overruling of Bakke v. Regents of the University of California (1978), Grutter, Fisher v. University of Texas at Austin (2013) (Fisher I), and Fisher v. University of Texas at Austin (2016) (Fisher II) – something the majority does not fess up to doing. And thus as the dissent in SFFA notes, “the Court does even attempt to make the extraordinary showing required by stare decisis” before overruling those decisions.

 

But overrule it necessarily does, as consideration of the majority opinion’s reasoning about a ban on using race as a negative makes indisputable. Without any quotation or even citation, the majority asserts that “our cases have stressed that an individual’s race may never be used against him in the admissions process.” Why did the majority maintain that Harvard’s and UNC’s admissions practices violated this stricture, even though the schools treated the race of certain underrepresented minority applicants as a plus in the admissions process? Because “[c]ollege admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” This means that colleges and university cannot consider race at all in admissions. And that holding is incompatible with the holdings of Bakke, Grutter, Fisher I, and Fisher II, necessarily overruling them. But because the Court, as the dissent accurately notes, does not attempt to justify this overruling, it may blunt the force of any criticisms it might endure. Were it widely understood by the public that, as with the Dobbs decision’s express overruling of Roe v. Wade last year, the Court with its new composition is again overruling constitutional precedent that has structured life in the U.S. for decades, the majority might be exposed to sharper objections from more quarters.

 

But not only does the majority opinion in SFFA mask what the majority is doing, its reasoning and lacunas therein also obscure why the Justices may be doing it. The majority deems it disqualifying that the policies at Harvard and UNC do not have a “logical end point” (quoting Grutter). The majority interprets those policies as “promising to terminate their use of race only when some rough percentage of various groups is admitted,” thereby “effectively assur[ing] that race will always be relevant.” (quoting City of Richmond v. J.A. Croson Co. (1995)). But how would that be the case? The majority apparently presupposes that it would never be the case that a race-blind admissions process could produce student bodies that, for example, approximately mirror the demographics of a given population (that of the state where a college is located, say, or that of the U.S. as a whole), even, I assume, in a future, racially egalitarian U.S. But why not? The Court has in the past criticized as “completely unrealistic” what it believed was the city of Richmond’s “assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population.” But why does the majority’s contrary decision not reflect an assumption – a “stereotype” about racial groups of a type seemingly condemned by the majority’s reasoning in this case – that they would, in an egalitarian society, not have similar interests in various fields?

 

One possible answer is that the majority believes that (non-Asian) minorities will never achieve at the levels that white people do, that (non-Asian) minority students would never (without consideration of race) be admitted to competitive universities on the “merits” at comparable rates. This is not an attitude unknown to U.S. Supreme Court justices, including one the SFFA majority treats as a reliable source on the meaning of the Equal Protection Clause, the first Justice Harlan. Harlan, who dissented from Plessy v. Ferguson’s upholding a state law requiring railroads to segregate black and white passengers on railroad cars (on the ground that separate but equal accommodations would satisfy equal protection). The majority quotes Justice Harlan’s Plessy dissent for the claim that “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Harlan, in the very passage the majority quotes (and in language the majority reproduces), was condemning legal measures reflecting a belief in a “superior, dominant, ruling class of citizens,” and a correlative belief in an inferior class, a “caste.” But when it comes to his actual racial views, the majority doesn’t recount them.

 

What else did Harlan say in his famed Plessy dissent (besides a detour about the inevitable alienness of “the Chinese race”)? “Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper.… The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty.” 

 

If that is what they believe (and it could explain why they don’t think racial groups in American will ever even “roughly” be “qualified” for admission to at least elite universities), the majority justices may have learned not to say that part aloud, learned not to state publicly that the white race will always be dominant. They will omit this from their adulation of Justice Harlan. They will not repeat the mistake – condemned now by history – of people like Judge J. Whitfield Davidson, who in the wake of the Supreme Court’s decisions in Brown v. Board of Education (I and II) said publicly: “[T]he white man has a right to maintain his racial integrity and it can’t be done so easily in integrated schools.” But as a proposition about the beliefs of a majority of justices who have repeatedly made it harder to redress racial discrimination even in areas as fundamental as voting, who regard it (as the SFFA opinion quotes) as “‘sad’” were “each identifiable minority assigned proportional representation in every desirable walk of life” (emphasis added), and who seem utterly convinced that in educational achievement that would not be possible without race-based affirmative action, such sociological white supremacy is, sadly, not unthinkable.

 

Don’t Worry About Roe, Conservative Prof Misleadingly Argues

“Let yourself go,/ Relax,/ And let yourself go.

Relax,/ You’ve got yourself tied up in a knot.”

 

I had originally reacted with incredulity about a recent effort to paint Amy Coney Barrett’s nomination to the Supreme Court as largely irrelevant to the fate of Roe v. Wade and constitutional protection for reproductive rights. I drafted a blog entry with the title and epigram above. But I secured publication of my commentary in law.com’s The Recorder here. So, with permission of The Recorder, I present that commentary below.

 

 

Reprinted with permission from the Oct. 8, 2020 issue of The Recorder. © 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited.

 

Law Professor’s Argument Is No Reason Not to Worry About ‘Roe’

 

David Cruz, law professor at the University of Southern California Gould School of Law, says a recent op-ed from Stanford’s Michael McConnell is misleading about the security of Roe v. Wade and abortion rights in the nation’s high court with the addition of Judge Amy Coney Barrett.

 

By David Cruz | October 08, 2020 at 08:00 AM

 

Conservative law professor Michael McConnell has published an op-ed in the Washington Post essentially telling the nation to take a chill pill about the confirmation of President Donald Trump’s nominee to the Supreme Court of the United States. Replacing liberal Supreme Court Justice Ruth Bader Ginsburg with conservative Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit “would not end abortion rights,” he says. Unfortunately, his argument rests on errors a constitutional law professor at Stanford should not make and is misleading about the security of Roe v. Wade and abortion rights in the Supreme Court after Barrett fills Ginsburg’s seat.

 

In the op-ed, McConnell tries to reassure the large portion of the American public who approve of women’s constitutional reproductive rights that Roe has not in the past been overruled despite numerous Supreme Court appointments by conservative presidents starting with Ronald Reagan. And according to McConnell, it “will not be lightly overruled” by the court even with Barrett installed. As supporting evidence, he argues: “Roe was reaffirmed this summer, in effect, by June Medical, with a majority opinion written by Chief Justice John G. Roberts Jr., an appointee of President George W. Bush.”

 

Almost everything about this sentence other than John Roberts’ position as chief justice and the president who approved him is wrong or at least misleading.

 

Start with Roberts’ opinion in June Medical Services v. Russo. In this case from June 2020, the Supreme Court by a 5-4 vote held restrictive Louisiana abortion regulations were unconstitutional. This shows us that Roe is safe, McConnell in effect says, because Roberts wrote the “majority opinion” in June Medical, showing that even judicial conservatives aren’t chomping at the bit to overrule Roe.

 

This argument that abortion rights will continue to be upheld doesn’t survive elementary math. It takes five votes from the nine justices to form a majority. With Ginsburg on the Supreme Court there were four more liberal Justices, who if they picked up just one vote could achieve more liberal results. With Barrett replacing Ginsburg, that leaves three liberals, who would need two of the more conservative justices to agree on any outcome, such as adhering to Roe and subsequent decisions protecting abortion rights. The fact that the four liberals were joined by Roberts in striking down the law challenged in June Medical does not mean that any of the other conservative Justices would do so—especially since the four on the court were unwilling to do so this summer.

 

In addition, McConnell grossly oversells Roberts’ position in June Medical. He is flatly incorrect in stating that Roberts wrote the “majority opinion” in the case. As the link in his op-ed to the official Supreme Court opinion makes abundantly clear, Roberts’ opinion in the case was not a “majority” opinion. A majority of nine is five or more, but Roberts’ opinion concurred in the judgment in the case (the outcome, but not the opinion). It was a solo concurrence, expressing only the views of the chief justice. The lead opinion in June Medical was a plurality opinion written by Justice Stephen Breyer for himself and the three other more liberal justices of the court. There simply was no majority opinion in the case, which matters because the court has often treated the lack of a majority opinion as a reason a precedent is more susceptible to overruling.

 

Some have argued that the holding of June Medical is contained in Roberts’ solo concurring opinion that espouses a much less protective version of doctrine than that applied in the Supreme Court’s Whole Woman’s Health v. Hellerstedt decision on which the more liberal Justices relied. In a case where there is no majority opinion, the Supreme Court has said that the holding should be identified pursuant to Marks v. United States, 430 U.S. 188 (1977), which asks which of the concurring justices offers the narrowest reasoning.

 

The right way to operationalize the Marks rule has divided scholars and courts alike. And, as professor David Cohen of Drexel University has noted, lower courts are already disagreeing about whether Roberts’ view in June Medical constitutes the holding under Marks. Cohen has cogently argued that even accepting Marks, prior Supreme Court precedent applied by the June Medicalplurality, offering more protection to reproductive rights than Roberts’ concurrence, remains the governing law. If that is true, the loss of Ginsburg from the June Medical majority and her replacement with Barrett could well be enough to tip the balance in a way that matters greatly.

 

Even without overruling Roe, Whole Woman’s Health, or other precedents protecting abortion rights, however, the Supreme Court could effectively gut them. First, rights can be undermined by narrowing interpretations, increasingly limiting the circumstances under which the rights apply, rather than by outright overruling of precedents. Indeed, Supreme Court justices dissenting from conservative majorities that have upheld abortion restrictions ostensibly under Roe or that case’s “central holding” have decried just such sapping and undermining.

 

This is a technique quite familiar to Roberts, observable for example in his treatment of precedent formally upholding the preclearance requirement of the federal Voting Rights Act of 1965 but gutting it by striking down that important law’s provision subjecting specific states to the requirement to obtain judicial or Justice Department approval to change their voting laws in his 2013 opinion for the conservative majority (Shelby County v. Holder, 570 U.S. 529 (2013)).

 

Second, McConnell’s op-ed does not address Roberts’ very narrow basis for voting in June Medical to hold the challenged Louisiana abortion regulations unconstitutional. In my view, with that omission it is highly misleading of McConnell to suggest that Roberts “reaffirmed” Roe. Roberts’ solo concurrence expressly explained that he voted as he did only as a matter of stare decisis, respect for the court’s precedent.

 

That is very different from voting because you are committed to upholding a precedent. Indeed, Roberts candidly stated in June Medical that he was voting to adhere to Whole Woman’s Health’s protection of abortion rights “in deciding the present case”—not in deciding future abortion rights disputes—because “neither party has asked us to re-assess the constitutional validity” of the prior precedent’s rule. Under Roberts, this court has expressly overruled other precedent dating back to the 1970s, so his vote in June Medical should give scant hope to those wishing the court to continue to interpret the Constitution to protect abortion rights.

 

As a constitutional scholar at a top law school, McConnell surely knows all this. One can only speculate why he omitted it from his op-ed. Regardless of his motivation, the people of the United States should not be fooled into thinking that the replacement of Ginsburg by Barrett does not dramatically increase the risk to constitutional reproductive rights.

 

David B. Cruz, Newton Professor of Law at the University of Southern California Gould School of Law, is a constitutional law expert focusing on civil rights and equality issues, including the rights of lesbian, gay, bisexual and transgender persons. He is the co-author (with Jillian Weiss) of Gender Identity and the Law (forthcoming, 2020) (Carolina Academic Press).

Title VII Means What It Says, Supreme Court Rules, Cheering LGBT Workers

“But you got dreams

He’ll never take away”

In Bostock v. Clayton County, the U.S. Supreme Court ruled today that firing employees because they are “homosexual or transgender” violates the ban on sex discrimination in Title VII of the Civil Rights Act of 1964, the major federal employment discrimination statute. This is a position LGBT people have taken since shortly after the statute was enacted; it is a position long advocated by numerous legal scholars, including me. It is the interpretation of the statute that was prevailing among more recent lower court decisions, in contrast to older judicial opinions. By embracing what Justice Gorsuch, writing for the six-member majority including the more liberal Justices (Ginsburg, Breyer, Kagan, and Sotomayor) and Chief Justice Roberts, considered the “ordinary public meaning” of the words of the statute when Congress passed it in 1964, the Court has assured that countless people in the U.S. have legal protection against anti-LGBT workplace discrimination, even in states that have not themselves enacted express bans on sexual orientation or gender identity discrimination.

The Court’s decision in Bostock also has potentially much broader application. Many other statutes prohibit sex discrimination. The Bostock decision is about one specific statute, Title VII, so it does not directly, immediately require that other statutes banning sex discrimination also reach sexual orientation and gender identity discrimination. But the reasoning in the majority opinion in Bostock could well lead the Supreme Court to that conclusion in further cases. If so, then it might well rule that the Trump administration’s attempt to roll back an Obama era regulation under the Affordable Care Act (ACA), which until Friday interpreted the ACA’s ban on sex discrimination to reach sexual orientation and gender identity discrimination, is contrary to the statute and legally void.

In addition, the constitutional guarantee of equal protection of the laws has been implemented by judicial doctrine giving government more or less deference when courts review different forms of government discrimination. Age discrimination is upheld unless the reviewing court concludes the plaintiff showed the government lacked a rational basis for its action; rational basis review is a very easy standard for the government to meet. But sex discrimination gets less deference, with courts supposed to uphold it only if the government discrimination proves that its action survives a form of heightened review often called intermediate scrutiny. It’s not enough there to have a rational basis; the discrimination must serve not just a legitimate purpose but one the courts will judge “important,” and the sex discrimination cannot just be loosely connected to the purpose in any “rational” way; rather, the discrimination must be “substantially related” to the discrimination. This is a much more demanding standard, one difficult for government actors to meet. Although Bostock was grounded in the meaning of a statutory text that proscribes “discrimination” “because of” “sex,” it would not be a stretch to see the Supreme Court rule that the Bostock reasoning shows that the constitutional concept of sex discrimination embraces sexual orientation and gender identity discrimination. This would then extend protection against governmental discrimination under the Constitution even where statutes don’t reach. That could have enormous benefit for LGBT people in a variety of contexts, including the federal government’s transgender military service ban.

Is It the End of the Line for Charlie Craig & David Mullins’s suit against Jack Phillips?  Masterpiece Cakeshop as Bush v. Gore

“Why leave me standing here?

Let me know the way”

A number of commentators have already noted a similarity between the Supreme Court’s decision yesterday in Masterpiece Cakeshop and its decision in 2000 in Bush v. Gore.  Both opinions self-consciously frame their judgments in narrow terms, raising a question whether they provide much if any guidance for other similar disputes.  In holding that the presidential election recount in Florida deprived voters of equal protection of the laws, the Court’s per curiam (“for the court,” unsigned, with authorship attributed to no specific Justice) opinion in Bush v. Gore stated:  “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”  In Masterpiece Cakeshop, the introduction of the Court’s opinion concludes: “Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the [Colorado Civil Rights] Commission’s actions here violated the Free Exercise Clause; and its order [directing the bakery not to discriminate against same-sex couples such as Charlie Craig and David Mullins] must be set aside.”  Both these pronouncements have supported concerns that the Court is treating its authoritative declarations of law as being (to borrow Justice Owen Roberts’s words in dissent from Smith v. Allwright (1944)) in “the same class as a restricted railroad ticket, good for this day and train only.”  People could long debate whether those, or other, instances are appropriate judicial minimalism, examples of the Supreme Court not deciding more than it needs to, or if instead they are unhelpful punting, ducking hard constitutional issues on which the nation needs definitive guidance.

But there’s another respect in which the Court’s decision in Masterpiece Cakeshop resembles its ruling in Bush v. Gore.  Both cases not merely vacated but “reversed” the judgments of the courts below.  Bush v. Gore held that the election recount ordered by the Florida Supreme Court violated that state’s voters’ right to equal protection of the law; Masterpiece Cakeshop held that the remedial order entered by Colorado’s Commission violated the baker Jack Phillips’s right to the free exercise of religion.  So, both decisions direct outcomes in the suits at issue.

But, in another point of commonality, it’s not clear these Supreme Court reversals had to/have to end the litigation at issue. In Bush v. Gore, the U.S. Supreme Court thought that after its ruling no recount would be possible consistent with Florida law and the notion that Florida election law contemplated finishing recounts by December 12, a so-called “safe harbor” date regarding slates of electors.  But in addressing that earlier, the Florida Supreme Court was talking about earlier phases of electoral disputes (“protests”), not the kind of electoral “contest” that was at issue in Bush v. Gore.  It should have been open to the Florida Supreme Court on remand to say, ‘the U.S. Supreme court misunderstood our opinion and misinterpreted Florida law, so on this election contest, let’s have a recount now that addresses SCOTUS’s equal protection concerns and gets our electors selected before the (later) time Congress actually will count electoral votes.’  It did not do so, perhaps intimidated by SCOTUS’s per curiam opinion.

In Masterpiece Cakeshop, the Supreme Court was even less forthcoming about the remedy. It reversed the court below, finding a constitutional violation in the Commission’s order where that court had seen none.  It specified that “the order must be set aside” and, more comprehensively later, “the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.” (my emphasis)  But the Supreme Court did not hold that Colorado’s Anti-Discrimination Act (CADA) could not be applied against the baker and the cakeshop; SCOTUS only held that it could not be applied with hostility toward religion.  And SCOTUS did not say that a newly constituted Commission (perhaps with one commissioner whose comments gave some Justices pause recusing; the other Commissioner is already no longer seated) could not revisit the questions whether or not the baker’s conduct violated CADA and, if so, what consequences should follow.  Justice Gorsuch’s concurring opinion, joined by Justice Alito, may have given the impression that they believed that was what must follow; they opined:  “Mr. Phillips has conclusively proven a First Amendment violation and, after almost six years facing unlawful civil charges, he is entitled to judgment.”  But a majority of the Court did not say even that.  And while Justice Thomas, joined by Justice Gorsuch, would have held that the baker’s free expression rights prevent Colorado from enforcing CADA against him even in the absence of anti-religious hostility, again, the Court did not reach that broader constitutional question.  Absent some procedural obstacle in Colorado law, if the Colorado state court and then the Commission have the courage of their convictions, it seems to me that they may address those broader questions – fairly and without hostility to religion – even after complying with the U.S. Supreme Court’s decision in Masterpiece Cakeshop.

Unveiling Marriage Equality?

“’Cause maybe they’ve seen us and welcome us all”

SCOTUSblog has a “flash” symposium on the Supreme Court’s grant of review Friday, January 16, in the four marriage cases from the Sixth Circuit, Same-sex marriage and the 14th Amendment.  My entry, UnveilingMarriage Equality?, addresses the issues the Court did, did not, and could take up in the cases; hazards a prediction regarding the ultimate outcome of the litigation; offers the skeleton of a defense of my position that the Constitution requires marriage equality; and sounds a note of caution about the Supreme Court’s recent spotty record on equality issues and the need for sustained work to bring about a more equal society in the United States.

New Mexico Supreme Court Unanimously Requires Equal Marriage

“Find a seed and plant it/Love will make it grow”

Ruling in Griego v. Oliver, a suit brought by six couples, the New Mexico Supreme Court unanimously ruled on December 19, 2013, that the state constitution’s equality guarantees require the state to let same-sex couples marry and have the same attendant rights New Mexico affords to different-sex couples.  This brings to seventeen the number of states with marriage equality, a full third of the nation’s states, plus the District of Columbia.

Relying on various indications of legislative intent, the court held that New Mexico’s marriage statute restricted marriage to different-sex couples (despite its facial gender neutrality).  It then considered whether that restriction violated the state constitution’s equal protection and due process guarantees.

The Court’s due process fundamental rights discussion was a bit perplexing.  The defenders of the marriage exclusion claimed, as opponents of marriage equality usually do, that the right to marry is the right to marry a person of a different sex, so that the plaintiffs were supposedly asking for recognition of a ‘new’ “right to marry a person of the same gender.”  The court apparently rejected this move, which tried to build the identities of the parties claiming the right into the definition of the right.  Instead, the court asserted that “that the correct question is whether the right to marry is a fundamental right requiring strict scrutiny[.]”  This the court said was a “difficult question.”  Even though the New Mexico supreme court had already noted early on that the plaintiffs were pressing arguments under the state constitution only, not the federal Constitution, the court proceeded to survey federal decisions by the Supreme Court of the United States (SCOTUS) to concluded that SCOTUS had not answered whether the right to marry is a fundamental one requiring strict scrutiny or not.  The New Mexico court never explains the relevance of this federal law question to the state law issue before it.  (And note: Although SCOTUS has not used the magic words “fundamental right”/“strict scrutiny” in its marriage cases I don’t think this is reasonably in question.  I won’t go into a full analysis here, but will note that Loving v. Virginia (1967) expressly called the right to marry a “fundamental freedom,” language the New Mexico Supreme Court did not quote or attempt to parse.)

Ultimately, the New Mexico Supreme Court did not need to resolve the right to marry issues because it concluded that the marriage exclusion violated the state constitution’s equal protection guarantee.  The plaintiffs had argued that the marriage exclusion amounted to both sex discrimination and sexual orientation discrimination.  Following the California Supreme Court’s 2008 decision, the New Mexico court gratuitously denied that “that the marriage statutes at issue create a classification based on sex.”  In neither case did the state supreme courts need to address this, because they concluded that the challenged marriage exclusions amounted to unconstitutional sexual orientation discrimination (against lesbigay persons and/or same-sex couples).  The conclusion also rested on the facile notion that men and women had the same rights under the exclusion: the right to marry a person of the same sex.  The U.S. Supreme Court could have viewed Virginia’s marriage laws as giving white and black people the same rights (to marry a person of the same race), yet it rejected this “equal applicability” argument in Loving.  Moreover, the New Mexico court’s reasoning on this point is curiously in tension with its recognition here in Griego that this very court had earlier held “that same-gender couples have custody rights to children under the New Mexico Uniform Parentage Act because, among other reasons, ‘it is against public policy to deny parental rights and responsibilities based solely on the sex of either or both of the parents.’” (emphasis added, citation omitted)

Fortunately, the (lack of) sex discrimination reasoning did not ultimately matter because the New Mexico Supreme Court held that sexual orientation discrimination is subject to intermediate scrutiny under the state constitution and that the marriage exclusion could not survive that level of scrutiny.  The court refused to adopt the most deferential standard of judicial review (which would have upheld the marriage exclusion if it had merely a “rational basis”), in part because the fact that “same-gender couples (the LGBT community) are a discrete group who have been subjected to a history of purposeful unequal treatment is not fairly debatable.”  Moreover, the court concluded “that effective advocacy for the LGBT community is seriously hindered by their continuing need to overcome the already deep-rooted prejudice against their integration into society, which warrants our application of intermediate scrutiny in this case.”  Accordingly, the court asked whether the marriage exclusion was “substantially related to an important governmental purpose.”

The court understood the defenders of the marriage exclusion to be arguing that it advanced governmental interests in “responsible procreation,” “responsible child-rearing,” and avoiding “the deinstitutionalization of marriage.”  The court rejected the latter contention for lack of evidence that whether or not different-sex couples continue to marry has anything to do with whether same-sex couples are allowed to marry (and because to the extent that the argument was based in moral judgments or tradition, it was insufficient to justify the discrimination).

The court also rejected procreation and child-rearing as justification for the marriage exclusion.  They were not reflected in the state’s marriage laws, which instead were about supporting the commitments of couples and any children they might wish to have.  Different-sex couples were not required to be able or inclined to procreate or raise children, and same-sex couples are legally entitled to and in fact raising children, ably and devotedly, in New Mexico and across the country.  (The court did not even deign to address the claim some courts, like those in New York and Washington state had accepted, that marriage discrimination was acceptable because different-sex couples can accidentally get pregnant but same-sex couples could not.)  Although the court had invited interested parties to participate by filing amicus briefs, “[t]he supposed justifications for the discriminatory legal classification [offered there] are categorically at odds with the comprehensive legislative scheme that is intended to promote stable families and protect the best interests of children.  Denying same-gender couples the right to marry and thus depriving them and their families of the rights, protections, and responsibilities of civil marriage violates the equality demanded by the Equal Protection Clause of the New Mexico Constitution.” 

Accordingly, the court ordered that same-sex couples be allowed to marry in New Mexico, afforded all the same rights as different-sex couples (including, presumably, the right to have their valid out-of-state marriages recognized), and provided marriage applications, licenses, and certificates with gender-neutral language.  This decision building on earlier marriage equality litigation (and the Supreme Court's decision in Lawrence v. Texas) is terrific news for same-sex couples in New Mexico (nor or in the future), and for the campaign for sexual orientation equality nationwide.

[edited 11:28 p.m. PST Dec. 19, 2013 to correct two typos and specify second Loving reference]

Prop 8 Proponents Ask California Supreme Court to Stop Marriages

“If I make improper suggestions
…
Desperate but not serious”

Here they go again:  Bypassing the lower state courts, the Proponents of Proposition 8 have filed a petition for a writ of mandate (here) asking the California Supreme Court to order the clerks of the counties in California to stop issuing marriage licenses to same-sex couples.  It seems very unlikely that the California Supreme Court would exercise its discretion to take up this matter and then rule in favor of the proponents, especially since those proponents are or come very close to asking the state court to interfere with a federal court injunction.

In a nutshell, the proponents are arguing first that Prop 8 is actually constitutional, that federal judge Vaughn Walker was mistaken in ruling to the contrary after the trial on Prop 8, and that the U.S. Supreme Court has not disagreed with them because it dismissed the Prop 8 appeal on standing grounds rather than reaching the constitutional equal protection or right to marry issues.  Second, they argue that county clerks have a ministerial duty to enforce the marriage laws of the state, which in their view include Prop 8, and that by ordering them not to, State Registrar Tony Agurto, following the legal conclusion of Attorney General Kamala Harris, violated the provision of the California Constitution that bars administrative agencies and at least some governmental executive officials from refusing to enforce state laws on the ground that they’re unconstitutional unless an appellate court has made a determination that the state law at issue is indeed unconstitutional.  (Although the U.S. Court of Appeals for the Ninth Circuit did “make a determination” that Prop 8 is unconstitutional, the proponents of the measure argue that since the U.S. Supreme Court vacated that decision, it cannot satisfy this state constitutional clause.)  And, third, they argue that the issue is so important, implicating as it does (in their view) the efficacy of the state initiative process, that these supposedly lawless same-sex marriages must be stopped immediately.

Unless a majority of the California Supreme Court Justices are extremely peeved that the U.S. Supreme Court ruled that the Prop 8 proponents lacked federal court standing, this latest effort to revive Prop 8 (or at least to demonstrate to constituents the proponents’ need for funds to keep up their committed fight for the measure’s legal life) is unlikely to go anywhere.  It’s certainly unlikely to result in an immediate order against issuing marriage licenses to same-sex couples.  However important the rule of law and the California initiative process may be, the petition contains no explanation for why those cannot be vindicated through an orderly judicial process that resolves Prop 8’s constitutionality and an order at the end of it to resume enforcing Prop 8, if that judicial process concludes it really is constitutional.

Moreover, this petition dangerously veers into or close to asserting the power of state courts to interfere with federal court injunctions.  Indeed, the proponents’ arguments make claims about the federal court’s supposed lack of authority of have bound certain defendants in certain ways.  Given our system of federalism, and specifically of the supremacy of federal law, state courts just are not allowed to disregard or narrow federal court orders (as was made clear to the chagrin of the segregationist South in the mid twentieth century).  Even if they were right that the state Attorney General erred in concluding that county clerks are within the terms of the federal court injunction against Prop 8 as employees controlled or supervised by the state defendants, the proper route to clarify the scope of a federal court injunction is to return to that federal court and ask it to rule.

Finally, in what is hard to believe is a good faith mistake, the proponents do not acknowledge that the City and County of San Francisco was allowed by Judge Walker to intervene as a plaintiff challenging Prop 8.  Instead, they refer repeatedly to “the four plaintiffs,” meaning the two same-sex couples who were plaintiffs.  They then argue that because those couples are now married, the federal injunction cannot even apply to Los Angeles and Alameda Counties, where those couples reside.  (Again, that’s a question about the proper scope of the federal injunction that the state courts cannot do anything about.)  But since San Francisco was a prevailing plaintiff, and the federal court injunction prohibits Prop 8 from being enforced against it, at a very minimum it can continue to issue marriage licenses to same-sex couples even if no other county could (which I do not believe to be the case).  Because Californians can get a marriage license in any county regardless of their residence or where the wedding will be held in the state, the Prop 8 proponents desperate, last-ditch (one hopes!) petition here cannot stop marriage equality in the state.  The futility of their petition is, thus, one more reason why the California Supreme Court is likely to deny it.  For the sake of those same-sex couples planning marriages and weddings, I hope the court does so quickly.