Conference Announcement -- The Global Arc of Justice: Sexual Orientation Law Around the World

International LGBTI Law Conference, West Hollywood & Los Angeles, CA, USA, March 11-14, 2009

The Global Arc of Justice Conference will be a four-day international conference focused on advances in LGBT rights from all round the globe, with a special focus on Latin America. Convened by the Williams Institute, a research center on sexual orientation and gender identity law and policy at UCLA Law; the International Lesbian and Gay Law Association (ILGLaw); and the City of West Hollywood; the conference will be held from March 11-14 on the UCLA campus in Los Angeles and in West Hollywood, California. The conference will offer simultaneous translation in English and Spanish.

Topics covered at the Global Arc of Justice Conference will include international efforts to advance legal recognition for same sex couples; the repeal of sodomy laws in former British Colonies; efforts by national governments to end homophobia and advance LGBT equality; implementation of the Yogyakarta Principles in litigation strategies and legal scholarship; and advancement of the rights of transgender and intersex people. Conference activities will include strategy working groups, paper presentations, plenary sessions, and various networking opportunities and celebrations.

This is going to be a great conference, featuring academics, activists, lawyers, judges, and politicians from around the world. The conference web site is http://www.law.ucla.edu/WilliamsInstitute/programs/GlobalArcofJustice2009.html, and registration is open. There are special rates for those who register by February 1, and a special hotel conference rate is available with a February 15 deadline for reservations.

Update: Sorry, in my rush to get this post (largely borrowed from the conference web site) up, I forgot to note that I am the current President of the International Lesbian and Gay Law Association (ILGLaw), co-convenor of this conference. That's not what makes the conference great. It's the extraordinary range of knowledgeable participants (and the hard work of Brad Sears, Randy Bunnao, and the rest of the folks at the Williams Institute).

Attorney General Sides with Marriage Equality

Jerry Brown's Brief Argues Prop 8 Is Invalid

The brief in the Proposition 8 litigation filed by Jerry Brown, the state's Attorney General, agrees with the petitioners challenging Prop 8 that the measure is a more profound revision to the Constitution, not a minor amendment, and therefore unconstitutional because it cannot be adopted through the initiative process that was used. While this does not guarantee that a majority of the California Supreme Court Justices will agree, it is a big development in the case and likely to weigh heavily in the Justices' minds.

UPDATE: Actually, the Attorney General's argument is that, although the challengers have not to his mind shown that Prop 8 counts as a revision, Prop 8 is nonetheless invalid because it attempts to eliminate fundamental rights without a compelling justification, which in his view is not a power encompassed by the initiative-amendment power. So, although he doesn't agree with the revision argument, Jerry Brown agrees with the challengers that Prop 8 is not within the initiative power. Interesting nuance, perhaps offering one or more Justices a third path, one that doesn't accept the revision argument but that nonetheless holds Prop 8 to be invalid.

Prop 8 Defenders Bring Out Big Gun

Kenneth Starr to represent Proposition 8's official proponents

Today, December 19, is the deadline for the briefs of the defenders of the validity of Proposition 8 to be filed in the California Supreme Court. ProtectMarriage.com - Yes on 8 has announced in a press release that Pepperdine Dean Kenneth W. Starr (remember him from his stint as Special Prosecutor in Whitewater/Monica Lewinsky affair?) will be representing the official ballot proponents in the state supreme court both defending Prop 8's validity (no surprise on that ground) and arguing that Prop 8 also doesn't allow California to continue to treat the same-sex couples married before the election as married (also no surprise, given statements on the Yes on 8 web site, even though the official ballot title and language were not nearly so clear about this kind of retroactive effect).

The United Straights of America?

Obama Inauguration & UN Declaration

In a double symbolic blow to sexual orientation equality in the U.S. today, it was announced that the invocation at the inauguration of President Elect Barack Obama will be given by Rev. Rick Warren, and the U.S. refused to vote in support of a United Nations declaration introduced in the General Assembly by France. Warren, the leader of the Saddleback Church in Orange County, California, actively campaigned for Proposition 8 to strip same-sex couples of their fundamental right to marry under the California Constitution. France's nonbinding declaration, supported by 66 countries, affirmed that international human rights protections extend to all persons "regardless of sexual orientation and gender identity." Score -1 for the outgoing administration and -1 for the incoming administration.

Kennard Conundrum?

Meaning of California Supreme Court Justice's Vote Not to Hear Prop 8 Challenges

The Los Angeles Times has reported here that "legal experts" are puzzled by California Supreme Court Associate Justice Joyce Kennard's statement when the court decided to hear the challenges to Prop 8. The court's order noted that Justice Kennard "would deny these petitions without prejudice to the filing in this court of an appropriate answer to determine Proposition 8's effect, if any, on the marriages of same-sex couples performed before Proposition 8's adoption."

The Times notes that Justice Kennard's "vote against hearing the legal challenges [might have been] procedural -- for example, she might have wanted them to be filed in lower courts first . . . ." But the paper then curiously claims that "a close reading of the court's one-page order suggests that gay-rights advocates may have lost a usually predictable ally in their effort to overturn Proposition 8." Perhaps Kennard has already decided she doesn't accept the interpretation of constitutional "revision" advanced by Prop 8's challengers.

To support this interpretation, which I shall call the pessimistic reading of Justice Kennard's statement, the Times reasons as follows:

The order said Kennard would hear a new case to resolve the validity of the 18,000 same-sex marriages "without prejudice" -- a phrase that indicates she was open to arguments on the issue. But she declined to modify her denial of the Proposition 8 challenges with those same words.

But this reading is flawed.

What Justice Kennard said was that she would deny these petitions challenging Prop 8 without prejudice to -- without harming -- the Prop 8 challengers' ability to file new suits about Prop 8's meaning in the California Supreme Court. A denial of the petition without qualifying language is non-precedential and would leave the parties free to file a new suit making precisely the same arguments in state trial court. (Legal beagles can find confirmation of this claim in the California Supreme Court's decision in Funeral Directors Association of Los Angeles & Southern California v. Board of Funeral Directors & Embalmers of California, 22 Cal. 2d 104, 136 P.2d 785 (1943).) So, even if the Times is reading the scope of the "without prejudice" caveat correctly, it does not mean that Justice Kennard said she would have voted against the constitutional challenge to Proposition 8 on the merits. Rather, she just didn't vote now to hear the case in the state supreme court originally.

So, while we cannot know what was in Justice Kennard's mind unless she tells us, there is less to support the pessimistic reading than the Times suggested.

On the other hand, there is more to support an optimistic reading than the Times article includes. As I just explained, Justice Kennard's preferred vote to deny the petition for a writ of mandamus (the technical term for the lawsuit filed in the California Supreme Court by by those challenging Proposition 8) is not a vote on the merits of that argument. It would not count as an adverse decision against the challengers even if she had a majority to go along with her. The challengers would be free to re-start a legal challenge to Prop 8 by filing a complaint in the trial court. Whoever lost would certainly appeal, and whoever lost in the Court of Appeal would ask the state supreme court to hear a further appeal, which it would be free to do even having earlier denied the Prop 8 challengers' petitions.

And it is plausible to think that Justice Kennard had exactly that in mind, rather than a belief that the challengers' argument was wrong. In a 1999 decision in Senate of the State of California v. Jones (988 P.2d 1089, 90 Cal. Rptr. 2d 810), a majority of the court considered a case arguing that a proposed Proposition 24 should be struck from the ballot for various constitutional reasons, including a claim that it violated the rule limiting initiatives to a single subject and a claim that it would amount to a "revision" of the state constitution , not a minor "amendment" of it, and so must start in the legislature. (That is the same sort of revision claim at the heart of the current challenges to Proposition 8.) The majority ruled that proposed Prop 24 violated the single-subject rule, and it never went before the voters.

Justice Kennard dissented (joined by Justice Janice Rogers Brown), but she did not reach the merits of the single-subject or revision arguments. She objected to what she called the majority's "hasty decision to declare invalid" that measure. She thought there would be plenty of time to decide the issue later if need be.

So, on the optimistic reading, Justice Kennard would deny the petitions challenging Prop 8 because she saw no need to "rush to decision" (to quote her Jones dissent again) about whether Prop 8 was an invalid revision or a valid amendment to the state constitution. The "without prejudice" qualification could have reflected a view that for the already married same-sex couples, there was an important reason for the California Supreme Court to decide whether they were affected without waiting for litigation to work its way up through the state court system – to remove any uncertainty about the validity of those marriages. (On this view, Kennard's statement could also be evidence that she's leaning toward holding that Prop 8 would, if valid, operate purely prospectively and not touch the existing marriages.)

Granted, Jones was a pre-election review case where the court set itself an even tighter schedule than it did when it decided to hear the challenges to Prop 8. But the reasons Kennard wanted the court to delay there could also be applicable here: "this challenge to Proposition [8] presents issues that are close and difficult, and because there has been inadequate time to give these issues the thoughtful attention and deliberation they deserve."

So, we really are left trying to read tea leaves, but the leaves don't tilt against the challenges to Proposition 8 the way the LA Times suggested.

Marriage & Equality Rights to Return to California Supreme Court

Court grants review in challenges to Prop 8

As widely expected, the California Supreme Court issued an order (here) indicating that it would decide whether Prop 8 is invalid as a revision of the state constitution. In addition, the court will determine whether it is invalid as a violation of separation of powers principles (an argument made in the petition filed by Gloria Allred) and whether or not Prop 8 has any effect on same-sex couples married before the election. Also no huge surprise, the court denied the requests for a preliminary stay of Prop 8. The court has set an expedited schedule for briefing, which will be completed in January.

Californians Enshrine Discrimination in Constitution

Prop 8 passage ensures questions

The Los Angeles Times has reported that Proposition 8, which eliminates the right of same-sex couples to marry in California, is ahead, 52% to 48%. Almost 95% of California's voting precincts have been counted, and the counties with significant measures of votes outstanding voted heavily in favor of Prop 8.

This assures that a new round of legal questions will have to be confronted. Was the measure merely an amendment to the constitution, or was it a qualitatively deeper "revision,"? If it amounts to a revision, then the measure was procedurally irregular and void, for revisions must originate in the state legislature with a 2/3 vote of each house before going to the voters. Prop 8, in contrasts, got on the ballot via initiative (registered voters signing petitions).

What is the fate in California of existing marriages? Does Proposition 8 operate prospectively only, effectively "grandfathering" in the estimated 16,000 same-sex couples who married between mid-June and the passage of Prop 8 last night? Even if it bars, California from continuing to treat those couples as married, it probably (though this remains to be worked out) would not stop other states from recognizing the pre-Prop 8 marriages. States such as Massachusetts, which allows same-sex couples to marry civilly, or New York, which doesn't itself marry same-sex couples but recognizes their validly entered marriages from other jurisdictions, are likely free to continue recognizing these marriages. I have sometimes described the quasi-retroactive view of Prop 8 as akin to a forced divorce, but it is probably more like a legal blind spot on the part of California; these marriages were validly entered, the parties have not divorced, so even though California will no longer treat them as marriages, others states most likely will be able to.

Latest Field Poll Shows Prop 8 Trailing

A new Field poll released on Halloween shows likely voters opposing Proposition 8 by 5 percentage points. The poll, taken of 996 randomly selected likely voters surveyed from October 18 to 28 ,shows 49% opposing Prop 8 to 44% supporting it, with 7% reporting undecided. The poll notes that the gap between the two sides is down from a month earlier, when a higher proportion of survey respondents reported opposition to Prop 8. What it doesn't note is that even this narrow lead is a dramatic improvement for the supporters of marriage equality/opponents of Prop 8 compared to the Survey U.S.A. poll taken early this month, which showed Prop 8 actually leading by a large margin. It seems that the No on 8 campaign's tracking polls accurately reported that the ads produced to counter the deceptive ads of the Prop 8 supporters are working.

Senator Feinstein Condemns Proposition 8

"You have lighted the road leading home"

With one week left until election day, Senator Diane Feinstein has released a TV ad for the No on Prop 8 campaign. A YouTube version of the ad can be viewed here. Next week we will learn whether a majority of voters agree with her that Proposition 8 "would be a terrible mistake for California."

Oct. 22 Poll Shows Prop 8 Losing Among Likely Voters

"Don't Stop the Love"

The Public Policy Institute of California (PPIC), a highly regarded polling outfit, just released a new poll on October 22 showing that likely voters oppose Proposition 8 by a margin of 52% to 44%. The PPIC poll is based on telephone interviews conducted October 12-19, and has a margin of error of ± 3%. These numbers, taken after the No on 8 campaign started running its ads, is a reversion to numbers closer to what were seen all summer long, before the Yes on 8 ads started running. The full study can be found here.

Connecticut Constitution Protects Same-Sex Couples' Right to Marry

"Ding dong! the bells are gonna chime"

The Connecticut Supreme Court held today that it violated the equal protection rights of gay and lesbian persons under the Connecticut constitution to deny them the freedom to marry civilly. The Court's opinion in Kerrigan v. Commissioner of Public Health rejected the state's argument that the marriage exclusion was constitutional because Connecticut offers same-sex couples "civil unions" with the same state-controlled legal incidents of marriage. At least when such an exclusion "singles out a group that has historically been the object of scorn, intolerance, ridicule or worse," even "symbolic or intangible" differential treatment is a constitutional harm Connecticut courts may address. And because marriage "is an institution of transcendent historical, cultural and social significance," whereas the new vintage status of civil unions (created by the Connecticut legislature during this lawsuit) most surely is not," the two legal regimes are not equal in a way insulating them from judicial review, the 4-3 majority ruled.

The Connecticut majority held that the marriage exclusion was a "quasi-suspect classification," which means that the state had to produce "an exceedingly persuasive justification" for its discrimination, not one that is barely rational. (This intermediate scrutiny standard is more deferential than the strict scrutiny used by the California Supreme Court in In Re Marriage Cases this past May.) The court rejected the state's claim that promoting uniformity and consistency with other states' and countries' marriage laws was a sufficiently important purpose to satisfy intermediate scrutiny. And it also rejected the argument that preserving the "traditional" definition of marriage as limited to relationships between one man and one woman could justify the statute.

And so the court ordered the case be sent back down to grant the plaintiffs a declaration that the exclusion of same-sex couples from civil marriage violated the Connecticut constitution and an injunction requiring state officials to let them marry.

Now, the question remains whether California will remain with Massachusetts and Connecticut as the only states in the union to allow same-sex couples to marry, or whether the voters will approve Proposition 8 on November 4 and eliminate the right of same-sex couples to marry in California.

Supreme Court Reaffirms Ban on Death Penalty for Child Rape

Military context matters less to constitutionality of state criminal laws

Today the U.S. Supreme Court rejected a petition for rehearing in Kennedy v. Louisiana (blogged here), its decision from June 2008 holding that the death penalty for raping a child is unconstitutional under the Eighth Amendment's ban on cruel and unusual punishments. Reserving the question whether unique considerations might allow the military to impose punishments that would be unconstitutional in the civilian context, the majority's Statement respecting the denial of rehearing reiterated the Court's emphasis on the non-military criminal rape laws of the states and the federal government as reflecting a consensus on the impermissibility of executing someone for a crime (such as raping a child) not resulting in death.