Prop 8 Foes & Fans Raking in Big Bucks

"Money Makes the World Go 'Round"

The fight over whether to adopt Proposition 8 on the November ballot to amend the California constitution to eliminate the right of same-sex couples to marry seems to be picking up steam financially. On Tuesday, July 29, No on 8-Equality California announced that Pacific Gas & Electric Co. is donating $250,000 to help fight the proposed amendment, reports the LA times. But the American Family Association has donated $500,000 to help support it. The Political Blotter blogs about the AFA's and other significant contributions here.

Prop 8 retitled & redescribed

"What's my name again?"

Although grammatically unusual – I would have expected most initiative titles to be noun phrases rather than verb phrases – there's a new name as well as a new summary description for Proposition 8, the proposed marriage-restricting amendment to the California constitution that will be on the ballot on November 4. Seemingly agreeing with some of the second argument in the writ that sought and failed to get the measure removed from the ballot, the state Attorney General announced this week that the measure will be listed as follows on the ballot (barring successful legal challenge):

Proposition 8
ELIMINATES RIGHT OF SAME-SEX COUPLES TO MARRY.
INITIATIVE CONSTITUTIONAL AMENDMENT

Changes California Constitution to eliminate right of same-sex couples to marry. Provides that only a marriage between a man and a woman is valid or recognized in California.

Fiscal Impact: Over the next few years, potential revenue loss, mainly sales taxes, totaling in the several tens of millions of dollars, to state and local governments. In the long run, likely little fiscal impact to state and local governments.

Court Lets California Constitution Amendment Fight Continue

The California Supreme Court has ruled in Bennett v. Bowen, the case filed seeking to have Proposition 8 removed from the November 4 ballot. (Prop 8 would amend the state constitution to deny same-sex couples the right to marry.) The Court summarily denied the Application for Stay and Petition for Extraordinary Relief, Including Writ of Mandate. See the July 16 entry in the Docket for the case. With that unsurprising development, the battle over the proposed amendment will certainly continue in earnest.

Death Penalty for Raping Child Unconstitutional

"When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint."

The Supreme Court of the United States has held in Kennedy v. Louisiana, by a 5-4 vote, that the state violated the Eighth Amendment's ban on cruel and unusual punishments by prescribing the death penalty for rape of a child under the age of 12, where the perpetrator did not kill the child and did not intend to kill the child. Justice Kennedy (no relation to the convicted) wrote the majority opinion, joined by Justices Stevens, Souter, Breyer, and Ginsburg. Justice Alito dissented, joined by Chief Justice Roberts and Justices Scalia and Thomas. Despite the recognized brutality of the crime against the child victim, Justice Kennedy's opinion for the Court insisted on the Constitution's commitment to respecting the dignity of all individuals. "As it related to crimes against individuals," he wrote, "the death penalty should not be expanded to instances where the victim's life was not taken." (Note though the interesting conflict between the Court's framing of its principles -- is the death penalty unconstitutional whenever "life [i]s not taken," or could it be imposed if the perpetrator intended to take life even if the crime did not result in the victim's death? This could become a point of future litigation about the reach of the Eighth Amendment.)

"Every male has a choice about where he puts his penis."

The British House of Lords today ruled 3-2 that conviction of a male for "rape of a child under age 13" when he, at age 15, had what was accepted in this posture as consensual peno-vaginal intercourse with a 12-year-old female, did not violate the European Convention on Human Rights provision (article 8) guaranteeing respect for private life.

Over the dissents of Lord Hope of Craighead and Lord Carswell, a majority consisting of Lord Hoffman, Baroness Hale of Richmond, and Lord Mance ruled that, given the way the case arose (where the complainant after the defendant was charged admitted lying about her age and later in the proceedings expressed her satisfaction with a guilty plea entered on the basis that the two of them had consensual sex, so that she did not have to testify in court), the crown was not required to proceed against the defendant on the basis of a different section of the Criminal Offences Act of 2003 criminalizing "sexual offences committed by persons under 18," which carries lower penalties and did not bear the term "rape" in its title. The majority believed that the defendant's main objection, since the Court of Appeal had reduced his sentence, was the stigma of the term "rape." But they did not believe that sufficient to violate the defendant's article 8 right to respect for his private life.

Baroness Hale, speaking somewhat plainly, also took pains to reject the characterization of section 5 of the Act as a "strict liability" crime that the Lords were somehow improperly upholding:

The perpetrator has to intend to penetrate. Every male has a choice about where he puts his penis. It may be difficult for him to restrain himself when aroused but he has a choice. There is nothing unjust or irrational about a law which says that if he chooses to put his penis inside a child who turns out to be under 13 he has committed an offence (although the state of his mind may again be relevant to sentence). . . . The object is to make him take responsibility for what he chooses to do with what is capable of being, not only an instrument of great pleasure, but also a weapon of great danger.

Welcome to the (Marriage) Club, Norway

Norway is now set to become the sixth country in the world (following the Netherlands, Belgium, Spain, Canada, and South Africa) to allow same-sex couples to marry civilly. The law, passed today, will go into effect January 1, reports the Los Angeles Times in this story.

Arriverderci "Persons, Not Groups"

The U.S. Supreme Court has held in Anup Engquist v. Oregon Department of Agriculture (June 9, 2008) that the Equal Protection Clause of the Constitution does not even apply to claims by government employees that the government has treated just one employee unequally and irrationally (as opposed, for example to discriminating against a larger class of employees, such as those of a particular race or sex). The majority opinion by Chief Justice Roberts (joined by Justices Scalia, Kennedy, Thomas, Breyer, and Alito) purports to adhere to past pronouncements that the Equal Protection Clause protects "persons, not groups" and confers an individual right. The majority Justices thus carved out an exception from the general equal protection principle, recognized by the Court in Village of Willowbrook v. Olech, that government violates equal protection where it "intentionally treat[s an individual] differently from others similarly situated and ... there is no rational basis for the difference in treatment."

The Court's ruling in Engquist that equal protection does not even apply to such "class of one" claims in the government employment setting is driven by a worry about the prospect of every government employee grievance spawning potential constitutional litigation against employers. Justice Stevens's dissent (joined by Justices Souter and Ginsburg) argues forcefully that experience shows no need to create such an ad hoc exemption from equal protection principles, certainly not as broad a rule as stated in the majority opinion. And if the majority felt so strongly about the policy basis for its holding, perhaps it would have been more prudent for them to attribute it to the federal law authorizing suits for constitutional violations, Title 42 of the United States Code, section 1983, which could be changed by a Congress that disagreed with its worried, rather than to distort its interpretation of the Constitution itself (which the majority reaffirms binds government even when government acts as an employer), which is beyond legislative correction without satisfaction of the supermajority requirements of constitutional amendment.

"Should I Stay or Should I Go?"

By its original 4-3 majority, he California Supreme Court has denied the requests for rehearing and that it stay the effect of its decision in In re Marriage Cases until after the voters decide in November whether to amend the state Constitution to bar the state from recognizing marriages for same-sex couples. (The court's news release and order are here.) This comes as no surprise to me and most scholars who've commented on the requests, but it does clear the way for counties to start issuing marriage licenses to same-sex couples without fear of liability as early as 5:00 p.m. on Monday, June 16.

"I Want to Be a Part of It, New York, New York"

As reported by the New York Times, the Governor of New York has directed all state agencies to recognize marriages lawfully entered by same-sex couples in other jurisdictions. This would include the Netherlands, Belgium, Spain, Canada, South Africa, Massachusetts, and very soon California. New York joins Rhode Island in recognizing such lawful marriages. This development might lead to further pressure for New York to pass legislation opening civil marriage to same-sex couples.

"It Doesn't Matter Your Opinion"

Practically speaking, Traci Adams may not be right (see her song "You Are Not God"). Be that as it may, a new Field poll taken in the wake of the California Supreme Court's In re Marriage Cases shows that, even taking into account the margin of error, a majority of registered voters in California now support the right of same-sex couples to marry and oppose the November ballot initiative to amend the Constitution to take away that right. Of course, this is a different result from a Los Angeles Times poll last week, which found bare majorities disapproving of the state Supreme Court decision and supporting the initiative. The new poll from the highly respected outfit may be expected to worry proponents of amending the California Constitution and to galvanize those seeking to keep the state from denying members of same-sex couples the right to marry the person they love.

Take That

The Supreme Court of the U.S. today interpreted two federal civil rights laws to protect workers from retaliation for complaining about prohibited discrimination. In CBOCS West, Inc. v. Humphries, the Court held that a post-Civil War era law, 42 U.S.C. § 1983, which provides that "[a]ll persons ... shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens," allowed former Cracker Barrel assistant manager to sue not only for his own allegedly racially motivated firing but also for alleged retaliation because he had complained about racially discriminatory treatment of a co-worker. In Gomez-Perez v. Potter, the Court held that the federal Age Discrimination in Employment Act allowed a postal worker to sue for alleged retaliation against her after she filed an administrative ADEA complaint. In both cases Justices Scalia and Thomas dissented, and Chief Justice Roberts dissented as well in Gomez-Perez.

Don't Ask, Perhaps Tell?

The United States Court of Appeals for the Ninth Circuit revived a lawsuit brought by the ACLU of Washington (state) challenging the constitutionality of the “Don’t Ask, Don’t Tell” policy (DADT) excluding openly lesbian, gay, or bisexual (collectively, “lesbigay”) persons from the U.S. military. The district court had dismissed the suit by the much decorated Major Witt challenging the constitutionality of her suspension from duty as an Air Force reservist nurse because of her relationship with a civilian woman. In Margaret Witt v. Department of the Air Force (9th Cir. May 21, 2008) (opinion also here), a three-judge panel held that the Air Force should be required on remand to satisfy a heightened form of scrutiny under the Due Process Clause of the Fifth Amendment. A 2-1 majority regarded the panel as bound by earlier Ninth Circuit precedent holding that DADT does not violate the Equal Protection Clause under what the court held was the applicable rational basis review.

Witt is important because it concludes that an earlier Ninth Circuit decision upholding a precursor to the DADT policy under heightened scrutiny under the Due Process Clause was “no longer good law” in light of the Supreme Court’s decision in Lawrence v. Texas (2003). In particular, the Ninth Circuit panel majority held that “Lawrence applied something more than traditional rational basis review.” (It rejected the contrary interpretation adopted by Lofton v. Secretary of Department of Children & Family Services, 358 F.3rd 804 (11th Cir. 2004), concluding that “the Eleventh Circuit failed to appreciaate both the liberty interest recognized by Lawrence and the heightened-scrutiny balancing employed by Lawrence.”) As a consequence, Witt held, “when the government attempts to intrude upon the personal and private lives of homosexuals [sic], in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interests, the intrusion must significantly further that interest, and the intrusion must be necessary to further that int. In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest.”

Unfortunately, the Ninth Circuit majority also held “that this heightened scrutiny analysis is as-applied rather than facial.” As a result, the trial court on remand could determine that application of DADT to Major Witt violated her substantive due process rights, but may not be free to hold the policy facially unconstitutional.

Judge Canby concurred in part and dissented part. In his view, the court did not go far enough. It should have held that Lawrence undermined both the Ninth Circuit’s due process cases and its equal protection cases upholding the military exclusion of lesbigay persons. After all, when the Ninth Circuit Court of Appeals originally held that rational basis review was the proper standard for challenges to the military exclusion, the court relied on the Supreme Court’s decision in Bowers v. Hardwick (1986) – which Lawrence v. Texas overruled in 1993! Moreover, Judge Canby argued, consistently with his longstanding view (see, e.g., High Tech Gays v. DISCO, 909 F.2d at 376-80 (9th Cir. 1990) (Canby, J., dissenting from denial of rehearing en banc), that strict scrutiny should be the governing standard both under the Fifth Amendment’s Due Process Clause and under the equal protection guarantee embodied in that clause.

Even though the Ninth Circuit panel did not embrace Judge Canby’s persuasive opinion, its recognition that DADT intrudes upon the constitutionally protected liberty of lesbigay persons in troublesome ways is encouraging, as is its holding that Major Witt should have her day in court to challenge her dismissal.