Tea Leaves and Sympathy

Divining case outcomes from questions and answers at oral arguments is perilous business in the best of circumstances. In the context of last week’s arguments before the California Supreme Court in the high-profile cases seeking the right to marry for same-sex couples, trying to determine the Justices’ votes based on their questions and comments is probably a fools errand.

The Los Angeles Times, however, concludes: “Three of the court’s seven justices strongly indicated that they would uphold the state law defining marriage as a contract between a man and a woman[.]” Although the Times does not specify whom it meant, my observation of the arguments leads me to suspect the paper is referring to Associate JusticesMarvin Baxter, Ming Chin, and Carol Corrigan. While the Times could perhaps be right about these Justices’ sympathies, I would not be certain.

The strongest of the Times’ calls is probably Justice Chin. He repeatedly pressed attorneys for the plaintiffs to agree that the rights and obligations provided by California to same-sex couples who register as domestic partners are “substantially” equal to those afforded different-sex couples who marry civilly. In responses to arguments that the exclusion of same-sex couples from civil marriage was nonetheless a deprivation of equal protection of the laws, he questioned: “But doesn’t that place rhetoric over reality?” But even Chin asked the attorney for the Proposition 22 Legal Defense Fund about parallels between the treatment of African Americans and the treatment of gay and lesbian persons: “But aren't the problems similar and haven’t the gay and lesbian community members gone through very similar kinds of discrimination?”

Justice Baxter also expressed a fair amount of skepticism. Curiously, though, he pushed a number of attorneys to state their agreement that if Proposition 22 (see Law of Unintended Consequences from March 29) governs not only the out-of-state marriages it was advertised as denying recognition to, but also marriages contracted within California, the legislature would lack the power to let same-sex couples marry while Prop 22 is on the books. Although this might be a sign that he is unsympathetic to the plaintiffs’ narrow interpretation of Prop 22, it could also be a suggestion that the state constitution precludes the legislature from looking out for the equality rights of lesbian and gay Californians in the face of anti-gay statutes adopted via ballot measures, leaving that job to fall elsewhere – perhaps to the Court?

Third, and in a similar vein, Justice Corrigan forced the attorney representing Governor Schwarznegger to agree with her that the issue of whether same-sex couples should be allowed to marry couldn’t really be left up to the legislative process per se if the Court concluded that Prop 22 applied not just to out-of-state marriages but also to marriages contracted within California; since the legislature cannot override a ballot initiative, “it might be somewhat more accurate to say you would leave it up to the democratic process.” She repeatedly worried about the point in time at which the plaintiffs believed the refusal to recognize marriages between same-sex couples “became” unconstitutional and how the Court could know whether the people of California were far enough along in their understanding of the evolution of marriage to open that institution to same-sex couples. “That to me is the essential question here; if society is different now how can we say that the majority of Californians have turned the corner, made this change, we now as the body politic are ready?”

But Justice Corrigan’s questions too were far from one-sided. When the attorney for the Proposition 22 Legal Defense Fund attempted to argue that procreation provided a rational basis for the government to exclude same-sex couples from civil marriage, the Justice asked: “Well then should we have marriage laws that say , that say you can’t marry unless you are prepared to have children, or capable of having children, or your marriage doesn’t count until you do have children? I’m puzzled by this somewhat narrow definition of why the state gets involved. Certainly that is a very important aspect of this institution, but it is not the sine qua non, is it?”

Ultimately, trying to discern the Justices sympathies from the questions at last week’s oral argument is probably not much more effective than trying to read tea leaves, and whether she was speaking about individual Justices or the state Supreme Court as a body, Justice Kennard probably summed it up best: “You don’t know where we’re going.”

Law of Unintended Consequences

On Tuesday, March 4, the California Supreme Court hears oral arguments in the historic lawsuits seeking civil recognition of marriages between same-sex couples. Fearing a decision that the California Constitution requires such recognition, opponents of marriage equality are already gathering signatures to place measures on the ballot in November. If approved, these initiatives would amend the state constitution to try to keep marriage heterosexual. But assuming the state Supreme Court rules in favor of marriage equality, the proponents of one of those measures may be in for a rude awakening. It might turn out that instead of “protecting” marriage, the ballot measure would end up abolishing civil marriage in the state of California.

One of the proposed initiatives being circulated has been styled the “California Marriage Protection Act” by its proponents, who include Gail J. Knight. Were it adopted by the voters, this measure, which I’ll call the Knight Amendment, would add a single sentence to the state Constitution: “Only marriage between a man and a woman is valid or recognized in California.”

If these words sound familiar, they should. Back in 2000 state Senator Pete Knight, the since deceased husband of Gail, sponsored Proposition 22, a ballot initiative that added to the California Family Code the exact same language. That initiative was advertised as protecting California’s sovereign authority to decide which marriages to recognize from other states. It was approved by the voters by a substantial margin.

So why this new initiative? By amending the Constitution, the backers hope to place the issue of marriage equality beyond the reach of the legislature and the courts. And they hope to preclude the possibility that same-sex couples will be allowed to marry in California as a result of a state Supreme Court decision interpreting the California Constitution.

But the language of the proposed Knight Amendment is most likely inadequate to the task of keeping marriage as a heterosexual-only institution in California. It’s basic shortcoming is that it only puts a limit on which marriages California may treat as valid and recognize, but neither requires that California must treat as valid and recognize any marriages at all nor amends the equality provisions in the state constitution.

So, consider this plausible scenario. Sometime between March 4 and June 2 the California Supreme Court rules that the refusal of the state to recognize marriages between same-sex couples violates the Equal Protection Clause of the state constitution. In doing so, the Court would necessarily be holding that the robust domestic partnership laws of the state do not suffice to treat same-sex couples equally with different-sex couples. If the Knight Amendment then qualified for the November ballot and the voters approved it, we would be left with the following state of affairs: It would not satisfy the California constitution’s equality guarantee to allow different-sex couples but not same-sex couples to marry; but it would not satisfy the state constitution’s Knight Amendment to allow same-sex couples to marry.

How then could the state satisfy both those constitutional constraints, as would be their duty? By not letting any couples marry. California could abolish “marriage” as such, and perhaps substitute domestic partnership for all couples, instead of just for same-sex couples and elderly different-sex couples as is currently the case. If the only formal relationship status the state offered couples were a domestic partnership, then it would be treating same-sex couples and different-sex couples equally for state constitutional purposes and so not violating the Equal Protection Clause of the California Constitution. And if the state did not recognize any marriages as “marriages,” it would not violate the proposed Knight Amendment, which does not specify that “marriage between a man and a woman” shall be recognized or valid in California. This measure says “only,” and so would be violated only if the legislature afforded recognition to some marriages in addition to marriages between a man and a woman. True, the measure’s proponents and language seem to expect that marriage would continue to exist, but the Knight Amendment doesn’t expressly require that – unlike some of the other circulating ballot measures, which do specify that marriage shall not be abolished.

I know that may seem like an unsatisfyingly technical interpretation of state constitutional provisions. Moreover, I am one of a group of constitutional law professors in California who filed an amicus brief arguing that a legislative choice to abolish marriage rather than open the civil status to same-sex couples would be infected by anti-lesbigay bias and therefore would violate California's Constitution. Yet the proposed Knight Amendment would change the state Constitution and leave no room for a legislative choice to allow same-sex couples to marry. So the situation would be different if the Knight Amendment were adopted. In that case, the California courts would act within their authority to declare that the best that could be done to satisfy constitutional equality principles under the circumstances would be to eliminate marriage, because marriage could only exist in a discriminatory form under the Knight Amendment.

Abolishing civil marriage is certainly not an intended consequence of the Knight Amendment. But that just underscores the dangers of compromising constitutional principle by writing discrimination into a constitution. If the voters are fair enough to appreciate that, we’ll reject the Knight Amendment and not try to nullify a California Supreme Court ruling allowing same-sex couples to have the same full recognition of and protection for their marriages as different-sex couples now enjoy.