Historic Vote by Four States for Marriage Equality

“Can’t you feel a brand new day?”

Based on the available results, I am thrilled to note that on November 6, 2012, the voters of four states reversed a dramatic and discouraging pattern of popular votes against same-sex couples’ freedom to marry.   The people of Maryland and (it appears as of this writing) Washington voted “yes” on referenda approving measures their state legislatures had passed to open civil marriage to same-sex couples.  The people of Maine approved an initiative to remove the mixed-sex requirement from their marriage law, just three years after a referendum there defeated a bill the Maine legislature had passed to do the same.  And in Minnesota, the voters defeated a proposed constitutional amendment that would have entrenched the state’s present statutory exclusion of same-sex couples from marriage.  This is an especially welcome development, as it interrupts an unbroken string of thirty-two marriage “definition” state constitutional ballot measures.  (Although Arizona voters rejected a discriminatory initiative in 2006, that measure would have gone further and amended the state constitution to block any legal status for same-sex couples “similar to marriage.”  A narrower ‘marriage only’ amendment was approved by a majority of Arizonans voting on it two years later.)

Coupled with the first-ever election of an openly LGBT person to the U.S. Senate (Tammy Baldwin, a lesbian and member of the U.S. House of Representatives from Wisconsin), these four states’ voting for marriage equality may well mark the beginning of a sea change in the country’s views of LGBT people and issues affecting us.  It certainly reinforces the view that nationwide marriage equality is, with the continued hard work of equality supporters of all sexual orientations, an eventuality and not a mere pipe dream.  I fervently hope that a majority of the Justices of the Supreme Court of the United States see that and welcome this shift toward fuller justice, and that they rule accordingly in whatever they do with the cases challenging the discriminatory federal law restriction on marriage in Section 3 of the so-called Defense of Marriage Act (DOMA), one or more of which the Court is certain to take up, and in the Perry litigation thus far holding unconstitutional California’s Proposition 8, which amended our state constitution to strip same-sex couples of the right to marry, which the Court could well decide not to review in light of the careful, narrow opinion written by Ninth Circuit Court of Appeals judge Stephen Reinhardt.  We may know shortly after November 20 whether the Supreme Court will hear any of those cases.  Today, though, feels like a brand new day.

Everybody look around

'Cause there's a reason to rejoice you see

Everybody come out

And let's commence to singing joyfully

Everybody look up

And feel the hope that we've been waiting for

Everybody's glad

Because our silent fear and dread is gone

Freedom, you see, has got our hearts singing so joyfully

Just look about

You owe it to yourself to check it out

Can't you feel a brand new day?

[“Everybody Rejoice (Brand New Day),” by Charlie Small, from the soundtrack of The Wiz]


[date typo corrected 20121107 8:23 p.m. PST]

Defense of Marriage Act Roundup

“In you I find a reason/And hope for all dreamers”

In the United States June is for many a month for weddings, and the month when many places have LGBT Pride celebrations, so it seems fitting to address a new round of decisions about the odious so-called “Defense of Marriage Act” (or “DOMA”).  In late May and early June, four federal courts in as many weeks ruled that DOMA’S prohibition on the federal government’s recognizing legal marriages of same-sex couples (entered into in states or jurisdictions that allow them) violates the equality commands of the U.S. Constitution.  All four decisions held (one way or another) that DOMA failed the deferential form of judicial scrutiny termed rational basis review, continuing a pattern that has been emerging starting in 2010.  With such a barrage of decisions coming from the federal courts, including judges nominated by Republican presidents, it seems somewhat more likely that the Supreme Court would agree and hold DOMA unconstitutional should it choose to take up one or more of these cases.

Karen Golinski & wife Amy Cunninghis, Photo:NYT/Jim Wilson

The first in this string of decisions was Golinski v. Office of Personnel Management (N.D. Cal. May 22, 2012), opinion hosted here by Hunter of Justice, the excellent blog by Georgetown law professor Nan D. Hunter.  The case began when Ninth Circuit Court of Appeals staff attorney Karen Golinski tried to enroll her legal wife in the family coverage health insurance plan provided to court employees.  After lengthy bureaucratic wrangling, including the federal Office of Personnel Management (OPM) denying administrative authority claimed by Ninth Circuit Chief Judge Alex Kozinski, Golinski sued in federal court, arguing that the federal definition section of DOMA’s refusal to recognize her as legally married for purposes of the laws governing federal employee benefits violated her constitutional equal protection rights.  The district court agreed, but its reasoning was noteworthy:  Primarily, the court held that DOMA discriminates against some married couples on the basis of sexual orientation, which in its view subjected the law to a form of heightened scrutiny and which DOMA failed; in the alternative, the court held, as had some prior cases, that DOMA fails even rational basis review.

How much of a justification the government must have to treat people unequally despite the constitutional guarantee of equal protection of the laws depends upon the type of discrimination at issue and the type of scrutiny the courts apply to that.  Most legal distinctions are subject to review only for a “rational basis,” a typically weak standard requiring that the challenged law at least hypothetically could serve any legitimate government purpose in some rational way; most laws also survive this weak standard of review.  Some forms of discrimination, however, are subject to less deferential, more skeptical judicial review.  Governmental sex discrimination, for example, must survive “intermediate scrutiny,” and so the discriminatory law’s actual purpose must be not merely legitimate but “important,” and the discrimination must be not merely rationally but “substantially” related to that purpose.  And when the government treats people differently on the basis of race, courts apply “strict scrutiny” and require the government to prove that its law is “narrowly tailored” or “necessary” to further some interest that is not just legitimate or even important but actually “compelling”; few laws survive such scrutiny.

Golinksi resoned that earlier Ninth Circuit precedent holding sexual orientation discrimination subject only to rational basis review had been undermined by Supreme court decisions such as Lawrence v. Texas (holding in 2003 that Texas’s “homosexual conduct” law was unconstitutional and overruling Bowers v. Hardwick, the Court’s 1986 decision upholding Georgia’s sodomy law).  The trial court considered many factors that courts use to determine the proper level of scrutiny, including the history of invidious discrimination against lesbigay persons, the irrelevance of sexual orientation to a person’s ability to contribute to society, the immutability or resistance to change or centrality to identity of sexual orientation for the vast majority of people, and the political vulnerability or lack of meaningful political power of lesbigay people as a minority in society.  Although the court’s reasoning did not cleanly differentiate between the two forms of heightened scrutiny, strict scrutiny and intermediate scrutiny, its opinion is probably best read as holding that DOMA must survive at least intermediate scrutiny (so must be substantially related to an important government interest, not just rationally related to a merely legitimate interest) and that it fails to do so.  With most federal courts using only rational basis review to address sexual orientation even if in recent years they have more often found anti-lesbigay laws unconstitutional under that deferential standard, Golinski’s embrace of heightened scrutiny, in accord with the weight of law journal analyses of the issue, heightens the opinion’s significance, no pun intended.

Photo: Legal Aid Society-Employment Law Center

Two days later, in Dragovich  v. U.S. Department of Treasury (N.D. Cal. May 24, 2012, opinion hosted here by the Legal Aid Society) another federal judge from Northern California also held the federal definition section of DOMA unconstitutional.  In Dragovich, the Legal Aid Society-Employment Law Center filed a class-action lawsuit with a number of same-sex couples, some lawfully married under California law like Patricia Fitsimmons and Elizabeth Litteral and some in state registered domestic partnerships, as named plaintiffs challenging DOMA’s definition of marriage excluding same-sex couples and provisions of federal tax law to the extent those laws limited their participation in long-term care insurance offered by CalPERS, the California Public Employees’ Retirement System. 

Rather than take Golinski’s approach and conclude that Supreme Court developments had undermined Ninth Circuit precedent requiring rational basis review, the Dragovich court stuck with that precedent and asked whether DOMA’s anti-lesbigay discrimination in this context was rationally related to a legitimate governmental purpose.  The court rejected arguments that DOMA was justifiable as a way to exercise caution, a measure to conserve government money, an attempt to preserve uniformity of eligibility for federal benefits, or a way to encourage responsible procreation and/or to preserve a social or symbolic link between marriage and procreation.  This left only the “moral condemnation and social disapprobation of same-sex couples” with evidence of which the congressional record was replete, but which cannot sustain a discriminatory law even under the deferential approach courts adopt with rational basis review.

Going beyond Golinksi and other prior DOMA cases, Dragovich also held that, aside from DOMA, the exclusion of same-sex state registered domestic partners from favorable federal tax treatment for CalPERS failed rational basis review.  Because the relevant tax law treats registered domestic partners differently from married couples, and California law excludes same-sex couples from civil marriage, relegating them to domestic partnerships, the court held that the tax law discriminated on the basis of sexual orientation.  Examining various congressional pronouncements from the period when the tax  law at issue was adopted, which was basically contemporaneous with the enactment of DOMA, the court concluded that “Congress acted on anti-gay animus in refusing to include registered domestic partners in the list of relatives eligible to enroll in state-maintained long term care plans.”  Because that is an impermissible justification for any governmental action, and because no legitimate governmental purpose (such as easing the administration of such plans) was rationally advanced by the statutory exclusion, Golinski held it to violate constitutional equal protection principles.

Nancy Gill & wife Marcelle Letourneau, Photo: Gay and Lesbian Advocates and Defenders

One week later, the U.S. Court of Appeals for the First Circuit also ruled that the DOMA’s restrictive federal definition of marriage is unconstitutional.  The First Circuit opinion in Massachusetts v. U.S. Department of Health and Human Services is hosted by Metro Weekly here.  Barred by circuit precedent from subjecting the statutory discrimination to the more stringent forms of scrutiny applied to sex or race discrimination, the Court of Appeals in a novel but not wholly unprecedented move concluded that a combination of discrimination and federalism concerns “require[d] a closer than usual review” of the statute, which DOMA failed.  The court therefore affirmed the trial court’s injunction against enforcement of DOMA in a relatively narrow opinion whose reasoning could well appeal to a majority of Justices on the U.S. Supreme Court.

The Massachusetts litigation began as two suits, one brought by Massachusetts and one brought by same-sex couples or surviving members thereof legally married in that state, challenging the denial of specified federal benefits that would have been paid were same-sex couples’ marriages recognized.  (I wrote about the trial court decisions in those cases here.)  Resolving the appeals from both suits with one decision, the Court of Appeals for the First Circuit wrote a candid, creative, and careful opinion, concluding that the federal government lacked a constitutionally sufficient justification for entering a domain traditionally regulated by the states and categorically discriminating against same-sex couples lawfully married in Massachusetts.

The unanimous Court of Appeals opinion was authored by highly respected Judge Michael Boudin, who was appointed to that court by the first President Bush. The opinion was strikingly candid, on both micro and macro levels.  Following an initial admission that “[t]his case is difficult,” the court acknowledged that the precedents bearing on the constitutional questions did not all speak with one voice.  And ultimately, the judges predicted, “only the Supreme Court can finally decide

this unique case.”

The couples or surviving members of couples challenging DOMA argued that sexual orientation discrimination should be subject to a more stringent level of scrutiny than rational basis review.  Unfortunately, First Circuit precedent (from a case, Cook v. Gates, challenging the military’s former “Don’t Ask, Don’t Tell” policy) held that sexual orientation discrimination was not suspect  or quasi-suspect and so not subject to strict or intermediate scrutiny.  The Cook precedent remains binding in the First Circuit until the Supreme Court overrules or undermines it or until the First Circuit Court of Appeals sits “en banc” (with all of its members participating instead of the usual panels of three judges that routinely hear appeals) and overrules it.

So the mere fact that DOMA discriminates against lesbigay persons was not enough to subject DOMA to more judicial scrutiny than rational basis review, which, as I have said, is characteristically quite deferential.  Instead, the court took a creative approach that relied on a combination of two factors to establish the propriety of meaningful judicial review (instead of the “roll over and play dead” approach often deployed under the rubric of rational basis review).  “Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications[,]” the court reasoned, and “in areas where state regulation has traditionally governed, the [Supreme] Court may require that the federal government interest in intervention be shown with special clarity.”

The Court of Appeals was correct that “the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification. In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible.”  The court was also correct that “[s]everal Justices have remarked on this”; the Court of Appeals might have added Justice O’Connor in her concurring opinion in Lawrence v. Texas.  But the Supreme Court as a whole has to date refused to acknowledge that it has used rational basis review two ways, “in its minimalist form” as the Court of Appeals put it and in a more searching form sometimes described by commentators as “rational basis with bite.”  Indeed, one of the three Supreme Court cases relied upon by the Court of Appeals, City of Cleburne v. Cleburne Living Center (1983), was later characterized by a Supreme court majority as “[a]pplying the basic principles of rationality review” and holding that a law discriminating against people then described as mentally retarded “incurs only the minimum ‘rational-basis’ review applicable to general social and economic legislation.” (Board of Trustees of University of Alabama v. Garrett (2001))

The Court of Appeals was therefore prudent in Massachusetts to look beyond prejudice against lesbigay people in justifying its “closer than usual review” of DOMA’s constitutionality.  This is especially true in light of the court’s somewhat gratuitous rejection of the argument that DOMA’s “dominant purpose was hostility to homosexuality”; the courts in Golinsky and Dragovich concluded otherwise, and the First Circuit did not need either to embrace or to reject their view of DOMA’s purpose(s) to reach its conclusions.

Where the court turned was to federalism.  In line with arguments I have previously sketched (here, published version here), the court rejected the argument that the federal government categorically lacked authority to regulate in the area of marriage, which states have long regulated.  It instead treated the historical dominance of the states in marriage regulation as a factor that, in combination with DOMA’s burdens falling on a historically marginalized group, warranted the court in looking carefully at the law’s proffered justifications.  “Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.”  The Court relied on cases about the extent of Congress’s authority under the Commerce Clause for its conclusion that this kind of federalism concern can heighten equal protection scrutiny of a law such as DOMA. 

Since Massachusetts is a case about equal protection constraints on government action, not the boundaries of Congress’s commerce power, the Court of Appeals might have also and perhaps more directly relied on Plyler v. Doe (1982), a Supreme Court decision holding that Texas violated the equal protection rights of children who were undocumented aliens (not lawfully present in the U.S.) by denying them the free public education it provided citizen and lawfully present children.  Texas’s law did not discriminate on the basis of a suspect classification (since immigration status is neither wholly immutable nor generally irrelevant to proper legislative ends) nor deny these children a fundamental constitutional right (since the Court had previously held there was no such right to education).  Yet rather than apply minimal rational basis review, the Supreme Court concluded in Plyler that “the discrimination contained in [Texas’s law] can hardly be considered rational unless it furthers some substantial goal of the State”–and that it did not.  In striking down Texas’s discriminatory law, the Court emphasized that in our scheme of federalism, the national government is given plenary authority over immigration and naturalization, to the exclusion of state authority in most cases.  Texas’s assertion of authority regarding immigration status in contrast to prevailing traditional allocations of governmental power might be compared to the federal government’s similarly unusual assertion of authority with respect to marriage in DOMA.  Of course, Plyler was decided by a 5-4 vote on the Court, and its continued vitality as a precedent may be revealed when the Supreme Court decides on the constitutionality of Arizona’s SB 1070 in Arizona v. United States this month.  So the Court of Appeals may have exercised appropriate discretion in relying on more recent Commerce Clause decisions popular with the more conservative side of the Court over Plyler.

Edie Windsor & her legal team, Photo: ACLU

The most recent judicial defeat for DOMA came the following week from a federal trial court in New York in an ACLU case, Windsor v. United States (S.D.N.Y. June 6, 2012, hosted here).  [Disclosure: Although not involved in this litigation, I remain a member of the national board of directors and an elected General Counsel of the ACLU.  As always, the views expressed here are my own and not necessarily those of any individual or entity with whom or which I might be associated.]  Because of DOMA, the IRS refused to recognize Edie Windsor’s lawful marriage in Canada to her wife Thea Spyer; as a result, after Spyer’s death Windsor had to pay more than one third a million dollars in federal estate tax from which a married different-sex couple would have been exempt.  She sued, arguing that this application of OMA’s federal definition section violated her equal protection rights.  On June 6, the U.S. District Court agreed, holding DOMA unconstitutional under rational basis review.

The U.S. Court of Appeals for the Second Circuit, which includes the federal courts in New York, has not decided what level of equal protection scrutiny should apply when the government discriminates on the basis of sexual orientation.  With most of the other Courts of Appeals having decided on rational basis review, the trial court in Windsor was hesitant to hold heightened scrutiny appropriate.  Ultimately, however, the judge decided not to decide the question because DOMA failed even conventional rational basis review (and thus the court said it was relieved even from deciding whether to apply a more searching form of review as the Court of Appeals did in the Massachusetts decision the week before).

Since the Obama administration has refused to defend DOMA since concluding it was unconstitutional, the defenses of the law are being mounted by private legal counsel hired by the House of Representatives’ Bipartisan Legal Advisory Group (voting on a part-line basis, 3 Repulicans in favor vs. 2 Democrats against).  The arguments in Windsor are the same as the ones in prior decisions, and the district court’s reasoning rejecting them are familiar as well, with the opinion quoting or citing all three decisions addressed above.

With so many judges across the country demonstrating that reason need not leave the courthouse when rational basis review comes in, the writing may be on the wall for DOMA’s discriminatory federal “definition” of marriage.  Federal litigation in other Circuits or on appeal from some of the trial court decisions could go the other way and uphold DOMA.  And of course it is difficult to predict what the Supreme Court will do.  But after several years of judicial passivity in the face of DOMA, this dramatic pattern of invalidations from sea to sea bodes well for justice being done. 


“That’s what my heart yearns for now.”


[edited for typography 7:01 PDT 20120614]

Virginia Assembly Denied Vote to Gay Judicial Nominee

“It’s  a sorry state, I say to myself”

(photo: Richmond Law magazine, University of Richmond, 2009)

The Washington Post has reported that the Virginia House of Delegates has voted to close its session without voting on the proposed appointment to state District Court of Tracy Thorne-Begland, a prosecutor from Richmond, thus killing his nomination.  The effort was spearheaded by Delegate Bob Marshall, who claims not to have objected to Thorne-Begland’s sexual orientation, which the state’s governor insisted should not be a factor, but because he was a “gay activist.”  Thorne, as he was known at the time, publicly came out as gay while serving in the U.S. Navy and unsuccessfully challenged his discharge pursuant to the military’s “Don’t Ask, Don’t Tell” policy.  

According to the Richmond CBS affiliate, “Marshall said that such gay rights advocacy is okay while serving in an elected capacity, but not as a judge–which calls for one to be impartial.”  Of course, since Marshall had no basis for assuming Thorne-Begland would suffer from role confusion and as a judge act the way an elected policymaker would, he needed some other reason to oppose Thorne-Begland with a straight face (so to speak).

Marshall found that reason in the fact that Thorne-Begland had been married in another state to a man, with whom he was living and raising children.  Virginia has a state constitutional amendment restricting civil marriage to male-female couples, which was enough for Marshall to conclude that “Thorne-Begland’s ‘life is a contradiction to the requirement of submission to the [state] constitution,’” according to the Post.  This overlooks the fact that Virginia cannot control whether other states allow same-sex couples to enter legal marriages, nor may it consistent with the First Amendment prohibit such a couple from holding themselves out as married (regardless of whatever it may be able to do when they are completing state governmental forms, for example).  Thus, there appears to be no legitimate basis for opposing Thorne-Begland beyond bare disagreement with his support for marriage equality, or because he is making a family life as a gay man.  It’s a sorry state when civil rights advocacy – or being gay – can disqualify one for judicial office.

CA Supreme Court's Disappointing Standing Decision

Well, my heart went "boom"

The California Supreme Court issued the latest entry in the legal paper trail of the saga of Proposition 8 today.  Prop 8, recall, is California’s initiative constitutional amendment that stripped same-sex couples of their previously fundamental right to marry under the California Constitution.  Answering a question that had been certified by the U.S. Court of Appeals for the Ninth Circuit, the court ruled “that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under ... the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.”  With this ruling, the dispute over Prop 8's constitutionality returns to the U.S. Court of Appeals for the Ninth Circuit, where that federal court now seems more likely to rule that Prop 8's official sponsors ("the Proponents") have the legal authority or standing to appeal Judge Walker's August 2010 decision holding Prop 8 unconstitutional.

I discussed the procedural posture of the challenge to Prop 8 and issues of the Proponents standing to appeal Walker's decision more fully here and here (among others).  For now, let me repeat that to be able to take an appeal in federal court, the Proponents must have a sufficient stake in the dispute that they have "standing."  Either they must have what the Supreme Court of the United States (SCOTUS) has called a "concrete and particularized interest" in the dispute, or they must somehow be able to step into the shoes of the state of California since pretty much everyone agrees that a state would have standing in federal court to defend its laws.  Prior SCOTUS case law makes it exceeding unlikely that the Proponents would have a particularized interest in Prop 8's validity, and indeed CASC does not even address that part of the Ninth Circuit's question.  Rather, it essentially holds that California law authorizes initiative proponents to step into the state's shoes when the elected state officers who ordinarily defend such measures choose not to.

But from where does this authority stem? CASC repeatedly says that Proponents enjoy this authority "under state law."  And, as quoted in the opening paragraph here, the court says that it is the provisions of the state constitution providing for the initiative power and the provisions of the state's election statutes specifying the role that initiative sponsors such as the Proponents play in getting an initiative adopted that confer this authority on ballot sponsors.  The court does not actually say that it is interpreting any of these provisions as the source of the authority to defend and to appeal adverse judgments -- and with good reason.  As Ted Olson emphasized in oral argument to the court, the California constitution expressly says that "The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them."  It says nothing about anyone defending enacted initiatives (or any other post-enactment function).  Likewise, the state's Election Code details the role that initiative sponsors have prior to enactment of their measures, and says nothing whatsoever about any post-enactment role for initiative sponsors such as the Proponents of Prop 8.  Ordinary principles of statutory and constitutional interpretation thus would seem to weigh heavily against CASC's conclusion today as a matter of interpretation, and the court does not even pretend to try to parse the meaning of the provisions of law on which it claims it is basing its decision.  The court's ruling thus is better understood not as an interpretation of state law but as a common-law holding, an interpolation, or a judicial construction, a rule the court chose to adopt to give effect to the values reflected in the California constitution and the state Election Code -- "to guard the people's right to exercise the initiative power."

There is evidence in the CASC's opinion to support this characterization.  The court quoted prior opinions where it had said of the initiative power that it is "the duty of the courts to jealously guard this right of the people."  To that end, the court reaffirmed, "if doubts can reasonably be resolved in favor of the use of [the initiative] power, courts will preserve it."  The trouble, of course, is that, as described above, the reserved initiative power is the power of the people to propose California statutory or constitutional measures and to vote them up or down.  To propose and to vote, as Ted Olson rightly emphasized at oral argument last December.

How then does the court justify creating its own gap-filling rule allowing initiative sponsors the authority to assert the state's interest in an enacted initiative to defend a measure or to appeal a decision invalidating it? The court quotes the same decisions, specifically their language saying that courts should "apply a liberal construction to [the initiative] power wherever it is challenged in order that the right be not improperly annulled."

Set aside the problem that the court is not interpreting but clearly adding to the words of the state constitution and the Election Code.  Where is the risk that an enacted initiative would be "nullified," whether "directly or indirectly" (as the court says elsewhere in the opinion) by acts of elected state officers?  Even if "the [California] Constitution‘s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents' efforts to ‘propose statutes and amendments to the Constitution’ or the People‘s right ‘to adopt or reject’ such propositions" (in the Ninth Circuit's words, quoted by the court), how could elected officers do that nullifying?  No one was claiming that governors and attorney generals could simply disregard an enacted initiative and treat it as a nullity.  As the same-sex couple plaintiffs pointed out and the court conceded, "invalidation of Proposition 8 in the underlying federal litigation did not result from any action or inaction by the Governor or

Attorney General but from a decision by the federal district court after a contested

trial."  Thus, it is far from necessary to vest initiative proponents with authority to represent the states interest to keep elected officers from nullifying measures the people adopt.

Faced with that inescapable reality, the court retreated from its ostensible concern with preventing initiatives from being nullified, to a concern with keeping them from being "undermined."  At one point, the court suggests that "the California initiative process may be undermined if a California initiative goes undefended in a federal proceeding."  Explaining at greater length, the court argued:

“If public officials refuse to provide [a competent and spirited] defense [of an initiative], the ability of the initiative proponents to intervene in the pending litigation, and to appeal an adverse judgment, is inherent in, and essential to the effective exercise of, the constitutional initiative power. To hold otherwise not only would undermine that constitutional power, it also would allow state executive branch officials to effectively annul voter-approved initiatives simply by declining to defend them, thereby permitting those officials to exceed their proper role in our state government‘s constitutional structure.”

But this is simply wrong.  The court emphasizes that it is affirming only a limited authority of initiative sponsors to defend initiatives, not to take any affirmative enforcement measures.  So assume that someone has brought suit to challenge the validity of an enacted initiative.  If the plaintiffs litigate in state court, the state courts are free to allow the initiative's sponsors to intervene as defendants, and once they do so, they may present any non-frivolous legal arguments in defense of the initiative they had proposed.  (Alternatively, the state court could let the sponsors participate as amicus curiae or "friends of the court," submit briefs, and engage in oral arguments.)  So, there is no risk of "effective nullification." 

On the other hand, if the plaintiffs litigate in federal court, they have to satisfy federal standing requirements.  If they do not have a sufficiently concrete and particularized injury as a result of the initiative, then the federal court will dismiss their suit, and the initiative will not be nullified.  But if the plaintiffs do have an adequate injury to proceed, then the initiative sponsors would not have to satisfy federal standing requirements to intervene as defendants -- there is already an adequate "case or controversy" (in the terminology of federal standing rules) between the plaintiffs and the state officer defendants who are by assumption refusing to defend the measure.  This is what happened in the Prop 8 litigation.  So, the initiative gets a "competent and spirited defense," and it therefore cannot be pejoratively labeled a state officer "nullification" if a federal judge concludes after an adversarial trial that the measure violates the federal constitution.  Only were state officers to refuse to defend and the federal court also to refuse to allow the sponsors to intervene as defendants would there remotely be a risk of nullification.  But then, either the federal appeals court might well deem it to be an abuse of the trial court's discretion to refuse such intervention -- nullifying the nullification worry -- or state law could much more narrowly vest proponents with authority to step into the state's shoes under those narrow circumstances for purposes of defending the initiative at trial.

So, perhaps the California Supreme Court’s opinion offers some justification for it concluding that it is necessary to use its power to create a rule (of state law) authorizing initiative sponsors to represent the state’s interests under certain rare conditions.  But once anyone has made “a full and robust defense” of an initiative at trial, and thus we can be confident that the trial court will be “aware of and address[] the full range of legal arguments that reasonably may be proffered in the measure’s defense,” a decision holding the measure unconstitutional is no improper nullification, whether or not that judgment gets appealed.  The California Supreme Court’s opinion thus has not justified extending the authority it by near-fiat gave initiative sponsors in today’s decision beyond defending the initiative the sponsors helped enact to appealing from trial court rulings invalidating the initiative.  It is unjustified to suggest that a law that is invalidated after a full adversarial trial has been somehow improperly “nullified” by a state officer’s decision not to appeal the trial court’s judgment.  Indeed, it is an insult to the integrity of federal trial court judges (who along with non-defending governors and attorneys general are the persons about whom the court is worrying).  True, a federal trial court might make a mistake.  But so might a federal appellate court.  And so might the California Supreme Court.  But the prospect of mistake, or even an actual mistake, cannot transform judgment into usurpation.  To the extent the California Supreme Court is worried about “the appearance of the fairness of the” federal judicial process, it is taking on the responsibility of a different level and branch of government: the federal judiciary.

The California Supreme Court’s only halfway real effort to justify its repeated afterthought of “or appeal” whenever it talks about proponents “defending” a measure is relegated to a footnote.  There, the court claims that “Ordinarily, … public officials who are defending a state law against a constitutional challenge can be expected to appeal an adverse trial court judgment to an appellate court.… The inability of the official proponents of an initiative measure to appeal a trial court judgment invalidating the measure, when the public officials who ordinarily would file such an appeal decline to do so, would significantly undermine the initiative power.”  This passage is awfully weak.  It shifts away from the court’s main trope about elected officers “nullifying” initiative measures to a much more nebulous claim about “undermin[ing] the initiative power,” and offers no empirical support for its claim about what is ordinarily done nor any normative argument about why the people of the state need someone besides elected officials to have the ability to take appeals from valid federal judgments holding initiatives unconstitutional for that legislative initiative power to be robust.

The court’s reasoning addressing the plaintiffs’ objection to creating new state law giving initiative sponsors the kind of authority at issue here is not much better.  The court argues that “because there is no reason to doubt that the California Legislature … would have authority to step in to assert the state’s interest in the validity of a statute enacted by the Legislature if the state’s executive officials have declined to defend the statute‘s validity in a court proceeding, we conclude that the people are no less entitled to have the state’s interest in the validity of a voter-approved initiative asserted on their behalf when public officials decline to defend the measure.”  But if the legislature were to intervene to defend a law, it would be pursuant to a vote of the legislature or perhaps one of its chambers, either directly authorizing intervention in a particular case, or an earlier vote vesting authority to intervene in legislative leadership, a house, a committee, or some other subset.  Here, even assuming the people (acting in parallel fashion to the legislature, by enacting law via the initiative process) are “entitled to have the state’s interest in the validity of a voter-approved initiative asserted on their behalf,” there is no evidence that the people have chosen to have the state’s interest on their behalf.  As Ted Olson emphasized at oral argument before the California Supreme court, although perhaps not as strongly as he might have, Prop 8 contained no clause granting standing to defend it to its sponsors.  Had there been such language, as there was in Prop 22 (the statutory ban on same-sex couples marrying adopted by the initiative process in 2000), then the same vote that adopted Prop 8 as an amendment to the state constitution also would have expressed the voters’ will to be represented by this particular self-appointed group of California voters.  But there was not.  So it is really the will of the California Supreme Court Justices, and not the will of the people, that appointed Prop 8 sponsors as champions of the people’s interests.

And the identity of these champions matters.  The court recognized that “Plaintiffs also contend that because the official proponents of an initiative measure are private individuals who have not been elected to public office, take no oath to uphold the California Constitution or laws, cannot be recalled or impeached, and are not subject to the conflict of interest rules or other ethical standards that apply to public officials, they cannot properly assert the state‘s interest in the validity of a challenged initiative measure.”  But the court’s rejection of this argument completely misses the mark. 

The court somewhat defensively replies that its ruling “does not mean that the proponents become de facto public officials or possess any official authority to enact laws or regulations or even to directly enforce the initiative measure in question.”  But that’s exactly the plaintiffs’ point!  Unlike the attorney general and the governor, the sponsors of a measure are just one or more California voters.  They have not been elected, and therefore cannot be turned out of office by the voters, so this unaccountable collection of California voters cannot claim that basis of democratic legitimacy to represent the interests of the people of the state as a whole, which is what “the State’s interests” are. 

The fact that initiative sponsors “are properly subject to the same ethical constraints that apply to all other parties in a legal proceeding,” as the court feebly notes, does not go far enough.  One does not, merely by suing or defending, become obligated to uphold the California and U.S. Constitutions.  Unlike a governor or attorney general, therefore, initiative sponsors therefore can make arguments that are patently antithetical to the foundational law governing in California.  There was a reason that the Governor and the Attorney General of California chose not to appeal Judge Walker’s ruling:  They believed Walker was correct to rule Prop 8 unconstitutional.  When same-sex couples are being denied their basic constitutional rights every day that Prop 8 (or any other initiative that has been held unconstitutional by a trial court) is in effect, fidelity to the Constitution is absolutely a trait that we should want in those empowered to represent the state’s interest.  (The court’s arguments about “public interest” mandate actions and “private attorney general” cases are somewhat more helpful to it, but the fact that they were “initially recognized by judicial decision notwithstanding the absence of any specific constitutional or statutory provision expressly granting such authority” does not enhance their legitimacy.)

Regrettably, all of the shortcoming’s in the court’s analyses are probably somewhat beside the point.  The California Supreme Court as a general matter is the ultimate judicial authority on the content or meaning of California law.  Thus, the innovative and problematic principle it articulated is an authoritative articulation of state law.  The Ninth Circuit and even the U.S. Supreme Court are generally not able to hold that state law means anything different.

That does not mean that the Ninth Circuit would be completely compelled to grant standing just because of what the California Supreme Court said today.  Footnote 7 of the court’s opinion notes that the authority to appeal in California state court litigation follows merely from being a party at trial, but also that the rule is different in federal court, where even a party must satisfy federal standing requirements to be able to take an appeal.  Footnote 27 says that SCOTUS’s “decision in Arizonans for Official English imposes no impediment to a state court‘s determination that, under state law, an initiative proponent has the authority to intervene as of right in an action in state court challenging the validity of an initiative measure.”  Taken together, this provides support for an argument and leaves room for the Ninth Circuit to conclude that, in federal court under federal law, today’s decision by the California Supreme Court does not dictate the conclusion that the Prop 8 Proponents do indeed have standing to appeal Judge Walker’s decision.

However, based on the argument before the Ninth Circuit last December, most observers do not think that Judge Reinhardt wants to hold that the proponents lack standing.  He was clearly frustrated with the possibility that he might not be able to reach the merits of the constitutional challenge to Prop 8 and instead might have to dismiss the appeal on the grounds that the Proponents lack standing to appeal.  If this reading is right, he may be looking for a reason to grant them such standing, and today’s California Supreme court decision may provide him just what he’s looking for.

If that is the case, the panel can be expected to rule on the constitutional questions fairly quickly (likely after allowing the parties to submit briefs on the significance of today’s opinion and perhaps after allowing argument).  Then, each side can be expected to ask SCOTUS to agree to review the case.  (It’s a matter of discretion whether SCOTUS accepts most appeals.)  Since neither the plaintiffs nor the Prop 8 Proponents wanted to have a factual trial in the first case, it is possibly but not highly likely that either side would ask for en banc review by a larger panel of eleven Ninth Circuit judges before asking SCOTUS to get in on the act.  If the Ninth Circuit does rule on the merits, then a narrower, California-specific equal protection holding that Prop 8 was unconstitutional would be less likely to be reversed by SCOTUS than a broader right-to-marry ruling that would invalidate marriage restrictions in 44 states.  Judge Walker’s opinion contained both kinds of rulings.  Only time, though not that much of it, will tell what kind of ruling the Ninth Circuit will make.

California Supreme Court to Rule on Prop 8 Case

Just thinking about/Tomorrow

The California Supreme Court has announced that it will rule in the Prop 8 standingt-to-appeal litigation (see my previous blog post here, which includes links to earlier, more detailed explanatory posts) tomorrow, Thursday, November 17, at 10:00 a.m.  Crossing my fingers the decision will not reflect the confusion some of the Justices displayed at oral argument.  I will blog tomorrow about the court's ruling and its possible significance when the case challenging Prop 8 now returns to the U.S. Court of Appeals for the Ninth Circuit.

Appeals Court Vacates Historic Decision Against “Don’t Ask, Don’t Tell”

“Emptiness and misery/Took it all away ya see/Yes… bitter”

Just one day after briefing was completed, the United States Court of Appeals for the Ninth Circuit has invalidated U.S. District Judge Virginia Phillips’s historic October 2010 decision holding that the federal statute and regulations known as “Don’t Ask, Don’t Tell” (DADT) were unconstitutional.   Unless this decision (available here) is reversed by a larger panel of Ninth Circuit judges (or, even less likely, by the Supreme Court), the legal effects of the trial court’s decision will be erased.

The federal government had appealed the district court decision invalidating DADT.  After Congress authorized repeal of the policy excluding openly lesbigay persons from military service, the government argued that the district court’s judgment should be vacated, wiping it out as if it had never been issued.  This summer, the Ninth Circuit directed the Log Cabin Republicans to file briefs showing why their lawsuit was not moot in light of the repeal of DADT.  The Log Cabin Republicans and various amici (“friends of the court”) organizations, including Lambda Legal and Servicemembers Legal Defense Network, filed briefs explaining why, even with DADT repealed, that unconstitutional policy continues to have legal consequences on those who have served and been expelled, so that the dispute should not be considered moot.

The eager-beaver panel of three Ninth Circuit judges, however, rejected these arguments, taking an exceedingly narrow view of the circumstances under which federal courts can continue to adjudicate a case once an underlying statute has been repealed.  Reagan appointee Diarmuid O’Scannlain was apparently so unhappy with his inability to reach the merits of the appeal that he cast aside the majority’s posture of judicial restraint and chose to concur with an advisory opinion explaining why he would have held that the district court was wrong to rule DADT unconstitutional.  He attempted to defend this move as giving guidance to district court judges about how to handle claims of unenumerated right, but it is fundamentally in tension with numerous, long-standing pronouncements that federal court judges simply lack the constitutional power to give advisory opinions.

If it stands, the Ninth Circuit’s ruling “vacate[s] the district court’s judgment, injunction, opinions, orders, and factual findings—indeed, all of its past rulings.”  Other litigation over DADT, such as the recent class action suit challenging the reduction by half of the post-separation payments received by servicemembers ejected pursuant to DADT, will have to start from scratch, as the Ninth Circuit intended:  “Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect.”

One can only hope that an en banc panel of the Ninth Circuit may take a more realistic view of the ongoing ramifications of the now-repudiated DADT policy and reinstate the district court’s important decision.

Symposium on Marriage for Same-Sex Couples

"Words words words on cracked old pages/How much of truth remains?"

In the run-up to the California Supreme Court arguments September 6 on the litigation challenging Proposition 8 and the cluster of cases challenging the Defense of Marriage Act, SCOTUSblog is now running an online symposium (link here) about marriage for same-sex couples, featuring commentary from numerous academics and a few others.  My contribution, States Rites? Federalism and marriage litigation, is here.

-DBC

Don't Ask, Don't Tell Enjoined, Again

"I'll be true to you in the whole world"

The United States Court of Appeals for the Ninth Circuit has lifted the stay of Judge Virginia Phillips worldwide injunction of "Don't Ask, Don't Tell" entered in October 2010 after trial in a case brought by the Log Cabin Republicans.  In an order (here) by a three-judge panel comprising Chief Judge Alex Kozinski and Circuit Judges Kim McLane Wardlaw and Richard Paez, the court put the injunction back into place against the military exclusion policy.  Theoretically, a lesbigay person could right now (as of my writing this afternoon, Wednesday, July 6) go into a recruiter's office, identify as lesbian, gay, or bisexual, and be allowed to enlist or start the process.

Interestingly, one of the factors to which the court pointed in its analysis was the  Department of Justice's July 1, 2011 brief in Karen Golinkski's federal lawsuit seeking to have the Defense of Marriage Act or DOMA declared unconstitutional.  The Obama administration followed up its February 2011 announcement that it would not defend DOMA because the law is unconstitutional under the heightened scrutiny that the Justice Department concluded applies (see entry here).  DOJ's brief in Golinksi affirmatively argues this position, at more length than Attorney General Holder did back in February.  Although the brief contains a footnote distinguishing the military context from the marital context, it was the brief's position on heightened scrutiny that the Ninth Circuit relied on in reinstating the injunction against "Don't Ask, Don't Tell."

What still remains to be seen is the Obama administration's response.  It had originally sought the stay of the injunction to give the military time to prepare an orderly transition.  Now, the Ninth Circuit panel concluded that the military has had enough time, most of the enlisted servicemembers have been trained in preparation for the final repeal of "Don't Ask, Don't Tell" (whose repeal Congress authorized), and the balance of hardships has tipped back in favor of those whose constitutional rights are being violated daily by the continued enforcement of the military exclusion.  The Administration could seek to have a stay re-entered.  A request for a larger panel of Ninth Circuit judges to rehear the case "en banc" seems unlikely, as such an 11-judge panel would automatically include Chief Judge Kozinski if it follows the same rules for rehearings of merits decisions (as contrasted with this procedural decision).  So any appeal seems more likely to be made to Anthony Kennedy, the Supreme Court Justice in charge of emergency motions from the Ninth Circuit, or to the full U.S. Supreme Court.  Whether they would reimpose a stay when the underlying statute is clearly not long for this world and the military is close to final repeal is a different matter.  And it's also unclear why the Justice Department might want to seek an appeal under these circumstances, though a general sense that the military does not like courts telling it what to do could be a consideration.

[edited to add link to the order lifting the stay, 8:24 p.m. PDT 20110706]

Bankruptcy Judges’ Defense of Marriage Act Ruling Briefly Summarized

“Cos it's a wave of bankruptcy/Can you believe now what you see?”

As I mentioned here, on Monday, June 13, the federal bankruptcy court in the Central District of California held that the section of the Defense of Marriage Act or DOMA that denies federal effect to lawful marriages between same-sex couples was unconstitutional as applied to a male married couple who filed for bankruptcy.   The court’s opinion in the case (In re Balas) holds that applying DOMA to refuse to treat the legally married same-sex couple equally with married different-sex couples violates constitutional equality principles.

The U.S. Trustee had moved to dismiss Gene Balas and Carlos Morales’s joint bankruptcy petition on the grounds that they do not count as “spouses” under DOMA’s Section 3, which defines “marriage” and “spouse” for most federal law purposes.  The debtor husbands countered that DOMA was unconstitutional, and an extraordinary 20 bankruptcy judges agreed (again, see here).  Although the court began its analysis with the customary presumption that this act of Congress was constitutional, the court ultimately agreed with the married couple that the presumption was overcome in this case.

The bankruptcy court relied on the Supreme Court’s 2010 decision in Christian Legal Society v. Martinez, which stated that “Our decisions have declined to distinguish between status and conduct” in at least some contexts, and Justice O’Connor’s concurring decision in the Court’s decision in Lawrence v. Texas in 2003 (which invalidated laws banning oral and anal sex), where she concluded that a law prohibiting only same-sex couples from engaging in those acts was “directed toward gay persons as a class.”  Accordingly, it concluded that DOMA discriminates on the basis of sexual orientation.  Agreeing with Attorney General Holder’s letter to Congress (see posts here) and following recent federal appellate precedent from the Ninth Circuit (in the case of Major Margaret Witt’s challenge to “Don’t Ask, Don’t Tell”), the bankruptcy court concluded that when the government discriminates on the basis of sexual orientation this is subject to heightened scrutiny, not deferential review, by courts.

In particular, the bankruptcy court agreed with Holder and the debtor couple – and, at several points, Chief Judge Walker’s opinion in Perry v. Schwarzenegger (which held that Proposition 8 was unconstitutional – see posts here) that “lesbians and gay men have experienced a history of discrimination”; that “sexual orientation is recognized as a defining and immutable characteristic”; that “lesbians and gay men face significant political obstacles”; and that “[s]exual orientation is irrelevant to an individual's ability to contribute to society.”  All of these factors weighed in favor of using more than minimal rational basis review to assess DOMA’s constitutionality.  Furthermore, the bankruptcy court accepted the “sex discrimination argument” against DOMA, concluding that the law “is gender-biased because it is explicitly designed to deprive the Debtors of the benefits of other important federal law solely on the basis that these debtors are two people married to each other who happen to be men.”  The court supported this conclusion with citations to Judge Walker’s Perry analysis and decisions from the Ninth Circuit concerning benefits for same-sex partners of court employees.

The court noted that the House Bipartisan Legal Advisory Group had indicated that it might intervene in this case to defend DOMA, but that it ultimately never filed any arguments with the court.  Accordingly, the bankruptcy court turned to the government interests offered in support of DOMA and could not “conclude from the evidence or the record in this case that any valid governmental interest is advanced by DOMA as applied to the Debtors.”  The court therefore held that DOMA not only failed to survive heightened scrutiny but that it could not even pass the more deferential standard termed “rational basis review.”  “For example,” the court concluded, “the joint [bankruptcy] petition of the Debtors will have no effect on procreation or child-bearing.”  Nor could the court conceive of any “fair, just and rational basis to conclude that DOMA will contribute to the achievement of the goal of preserving scarce government resources” or find any “basis in the evidence or record in this case to credit such a proposition.”

This decision suggests that the momentum against the Defense of Marriage Act is building.  The June 13, 2011 ruling in In re Balas is likely to be cited in future litigation against DOMA as well as in efforts to get Congress to repeal the discriminatory Act.  As the bankruptcy court recognized, Gene Balas and Carlos Morales are a struggling family equally in need of the protections of the law, here bankruptcy law, as are families headed by different-sex couples.  Perhaps soon DOMA will be repealed or held unconstitutional even by the current right-leaning Supreme Court, either of which would remove one huge obstacle to equality under law.

20 Bankruptcy Judges Jointly Invalidate Defense of Marriage Act

"Cooperation is the secret to our success"

On Monday, June 13, the federal bankruptcy court in the Central District of California, which includes Los Angeles, held that the section of the Defense of Marriage Act or DOMA that denies federal effect to lawful marriages between same-sex couples was unconstitutional as applied to a male married couple who filed for bankruptcy.   The court’s opinion in the case styled In re Balas may be found here.  Perhaps the most unusual aspect of the decision was who rendered it.

The opinion was signed by 20 judges of the Central District bankruptcy court, including the current Chief Judge.  This is the overwhelming majority of that court, which is authorized to have 24 judges (three of them temporary) and has sometimes had Judge William Altenberger (who is on “recalled status” in the Seventh Circuit) sit with it.  Altenberger signed this opinion, as did Judge Kathleen Thompson, who is not listed on the Central District bankruptcy court’s website, though Judgepedia notes that her term was set to end in 2016 but she had previously announced an intent to retire in January of 2011.  I have not yet tracked down her current status.

One attorney I know has not seen an opinion signed by multiple bankruptcy judges in 40 years of practice, and I have not heard of any such joint signings.  It seems clearly designed to convey the strength of that court’s judgment about the unconstitutionality of DOMA.  The joint signing practice echoes the U.S. Supreme Court’s decision in Planned Parenthood v. Casey, the 1992 decision that refused to overrule Roe v. Wade outright as requested by the first Bush administration.  In Casey, Justices O’Connor, Kennedy, and Souter jointly signed the controlling opinion, rather than following the Court’s customary practice of having an opinion designated as having one author with other Justices concurring in it.  The Casey joint opinion in turn seemed a rather deliberate allusion to the Supreme Court’s 1958 decision in Cooper v. Aaron, where all nine Justices signed an opinion rejecting community resistance to Brown v. Board of Education as an adequate basis for delaying integration of Little Rock High School.  The difference, of course, is that  there is no Supreme Court precedent – yet – directly holding the federal definition section of DOMA unconstitutional, so presumably these judges believe that established constitutional principles, the very same principles cited in Attorney General Holder’s letter concluding that DOMA is unconstitutional (blogged about here), which the bankruptcy court cited, dictate their conclusion.

This case of course can be appealed by the United States Trustee, but it seems unlikely that the Trustee would do so in light of the Holder letter's and the Obama administration’s position of no longer defending DOMA against married same-sex couples.

Effort to Impeach Iowa Supreme Court Justices

“I don't even know which trick I ought to try”

Gavel to Gavel is reporting that impeachment resolutions have been filed in the Iowa House to try to remove the remaining  four Iowa Supreme Court justices who joined the unanimous May 2009 decision holding that the state constitution required an end to the state’s exclusion of same-sex couples from marriage.  The other three justices who had joined that decision were unseated in a retention election in November 2010 after a campaign greatly supported by the National Organization for Marriage, a group dedicated to perpetuating the exclusion of same-sex couples from civil marriage.

Now, several Republican legislators have filed resolutions accusing the justices of exceeding their lawful authority, the Iowa Republican reports.  The charge, in my view, borders on laughable.  The Iowa Supreme Court’s opinion in Varnum v. Brien carefully details the state’s longstanding constitutional tradition of protecting equality, liberty, and fundamental rights, and governmental justifications for denying lesbigay people the right to marry the person they love are, at best, phenomenally weak.

Happily, this now appears to be political grandstanding by several freshman Republican legislators.  Lezgetreal reports that the Iowa House Speaker has stated that he does not expect the resolution (which goes first to the House Judiciary Committee) to be debated on the House floor.

The justices of the Iowa Supreme Court hardly performed a “good deed” in ruling in favor of Iowan’s right to marry – they upheld their judicial duty to uphold the law including the state constitution impartially – but the punishment visited upon the ousted justices was real and ominous, though misplaced.  It will be a relief once the current punitive impeachment efforts are definitively put to rest.

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Arkansas Ban on Adoption by Gay (and Other Unmarried) Cohabitors Struck Down

The man’s got his eye on me/And that’s an invasion of my privacy

The Supreme Court of Arkansas unanimously held today that the state’s ban on adoption or foster parenting by persons who are cohabiting with a sexual partner outside marriage violated the state constitution.  In Arkansas Department of Human Services v. Cole (opinion here), the court concluded that the law violated the state constitutional right of privacy.  This decision is a great development for the children of Arkansas who need parents or foster parents.

The current ban on adoption or foster parenting by unmarried sexual cohabitants was written in sex-neutral terms, so that it applied to people who cohabit with a sexual partner of a different sex or one of the same sex.  It had been adopted by the voters through an initiative in 2008 in the wake of a 2006 Arkansas Supreme Court decision striking down a ban on foster parenting by any individual if a lesbigay person was a member of his or her household.

In Cole, the Arkansas Supreme court did not rely on the transparent discriminatory intent behind the initiative ban.  Rather, the court’s decision built upon a 2002 Arkansas Supreme court decision in Jegley v. Picado.  Jegley had held that the Arkansas Constitution contained an implicit right of privacy, and that a state law criminalizing oral or anal sex by same-sex couples violated that right as applied to private, consensual, noncommercial sex.  Today, the Cole court reasoned that the parenting ban burdened the right to engage in sexual intimacy, forcing people to “the pernicious choice” between being eligible to adopt or to foster parent a child, or being able to exercise their fundamental right of privacy.

Because the right of privacy, including the right to engage in sexual intimacy, is fundamental under the Arkansas Constitution, laws burdening this right are examined by Arkansas courts under a nondeferential, “strict” or “heightened scrutiny” standard.  The law burdening the right must be  narrowly tailored or the least restrictive way of furthering some compelling (not just legitimate) state interest.  Although the court agreed with the defendants that protecting the best interests of children is a compelling interest,  Because some people cohabiting in a sexual relationship with someone outside marriage were conceded to have the ability to be good parents, and because the initiative enacted an across-the-board, categorical ban on adoption and fostering, when the individualized assessment process for adoptions and foster parent placements was adequate to protect children’s interests, the Arkansas Supreme Court held that the ban was not the least restrictive means of protecting children.

Before Arkansas changed its nickname to “the Natural State” (‘sex is natural, sex is good’?), it was the “Land of Opportunity.”  With the decision in Cole, it is once again a land of greater opportunity for children to be raised by loving, competent parents.

[edited to add labels]