Marriage Equality Defeated (for now) in Maine

Andrew Sullivan Misreads the Situation in the Pine Tree State

A majority of voters in Maine yesterday chose to repeal the state’s law allowing same-sex couples to get married before it even went into effect, the Bangor Daily News reports here. Following last year’s debacle of Proposition 8 stripping same-sex couples of the right to marry, Maine becomes the second state to have (almost) had equal state-controlled rights for lesbigay persons only to lose them to the expression of fears or prejudice at the ballot box.

Thus Andrew Sullivan is wrong to write in his blog that “in Maine, … gays do have equality but may now merely be denied the name.” Unless he is writing about the abstract moral equality that underlies claims to human rights, or the abstract political equality of persons and citizens ostensibly protected by the U.S. Constitution, Sullivan is simply wrong to assert that lesbigay people in Maine “have equality,” for several reasons.

First, same-sex couples in Maine are now relegated to state registered domestic partnerships but, unlike California’s domestic partnerships, these are decidely weaker than civil marriages. The Maine Department of Health and Human Services, has even cautioned in bold print that "[i]t is important to remember that a registered domestic partnership is NOT the same as a marriage and does not entitle partners to rights other than those for which the registry was intended. This registry is intended to allow individuals to have rights of inheritance as well as the rights to make decisions regarding disposal of their deceased partners remains."

Second, even if Maine attached all the same state-controlled rights, benefits, and obligations of civil marriage to domestic partnerships, the voters’ decision to deny marriage to same-sex couples imposes a legal burden on them that different-sex couples don’t face. When a married couple goes to another state, there is a well established body of interstate marriage recognition law that they can appeal to. Granted, the “Defense of Marriage Acts” (DOMAs) adopted in many states make it harder to invoke this body of law successfully. But same-sex couples in Maine now will face the additional hurdle of having also to argue that their non-marital status should count as a marriage for purposes of this body of law. Likewise, if Congress were to repeal the federal DOMA, which Barack Obama has said he supports, then married same-sex couples would automatically be governed by the estimated 1,138 federal laws that make marital status relevant; same-sex couples from Maine, however, would have additionally to try to argue that their domestic partnership, intentionally distinguished from marriage, should nonetheless be treated as a marriage for federal law purposes.

And third, Andrew Sullivan here seems to be making the same volte-face as the California Supreme Court did this past spring when it upheld Proposition 8 , which stripped same-sex couples in California of the right to marry. When Chief Justice Ronald George wrote for the Court in 2008 in striking down the marriage exclusion as violating the California Constitutionl, the Chief Justice penned eloquent passages about the importance of being included in the institution of “civil marriage” as such for the equality and dignity of lesbigay people. Yet when he wrote for the same court a year later and upheld California’s pernicious ballot measure, his reasoning seemed to many to hold that this was a sufficiently non-fundamental change to the state constitution – even though it targeted a minority group defined by a suspect classification for deprivation of a fundamental right, the right to marry – because the “sole” effect of Prop 8 was to deny same-sex couples the “designation” of “marriage.”

Andrew Sullivan seemed to appreciate the stakes when the California Supreme Court first invalidated the discriminatory marriage exclusion. In his blog mere days after the decision, he wrote:

“Equality is equality is equality. And a marriage license is a marriage license is a marriage license. Calling it something else for a few is a way of saying it is something else for the few, and something lesser for the few. There is no way around this, and in many ways, I am grateful that the California court put it so bluntly.”

Nothing has changed about the nature of equality, so it is not apparent to me why Sullivan seems to have changed his mind about equality in Maine.

DC Council Introduces Marriage Equality Bill

"Show your friends across the sea/It's a fair dance"

On Tuesday, October 6, the Council of the District of Columbia introduced legislation to allow same-sex couples to marry, the New York Times reports. The bill is expected to pass, but it could be subject to congressional override, setting up the prospect of potentially uncomfortable votes for Democrats in Congress, which under Republican "leadership" had for a decade (until 2002) barred DC from spending federal or local money to implement the District's domestic partnership law. If Congress manages not to intervene, it will be powerfully symbolic to see marriage equality come to the nation's capitol, in stronger form than merely recognizing valid marriages performed in other jurisdictions. Now if Congress would repeal DOMA!

Wiliams Institute Study Supports Inclusive ENDA

"When heterosexism strikes, strike back"

The U.S. House of Representatives held hearings today on H.R. 3017, the Employment Non-Discrimination Act of 2009 (ENDA), which would prohibit employment discrimination on the basis of sexual orientation and/or gender identity. Brad Sears, Executive Director of the Williams Institute, a national research center on sexual orientation and gender identity law and public policy at UCLA School of Law, testified in support of the bill.

Sears summarized the findings of a twelve-month research study conducted by the Williams Institute, which found widespread and enduring discrimination on the basis of sexual orientation and on the basis of gender identity by state and local government as well as in the private sector. These findings support the conclusion that Congress has the power to enact ENDA under Section 5 of the 14th Amendment, which grants Congress the authority (among other things) to enforce the guarantees of that Amendment's Equal Protection Clause.

Congress would assuredly have the constitutional authority to adopt ENDA under its power to regulate interstate commerce. Congress's Section 5 power is important, however, because it (and not the commerce power) would allow Congress to authorize private individuals who have been discriminated against by state governments to sue those governments for money damages to compensate them. Without that authority, states would be able to assert "sovereign immunity" as a shield against monetary awards under current constitutional law.

If you have not already done so, please let your Representative know that you want her or him to stand up for fundamental fairness and support the right of Americans of every sexual orientation and gender identity to work free of invidious discrimination. You can reach your Representative by dialing 202-224-3121 and giving the operator your zip code; ask her or him to support and to sponsor ENDA, H.R. 3017.


Disclosure: I am a Visiting Scholar at the Williams Institute this semester, as I was in Spring 2003, and I remain a member of the Institute's Faculty Advisory Committee; however, I was not involved in the preparation of this testimony or report.

LGBT Advocacy Groups Excluded from Suit Challenging Prop 8

"And you just might need a friend"

Federal court trial judge Vaughn Walker has scheduled trial in the challenge to Proposition 8's ban on California's allowing same-sex couples to marry for January 2010. See the San Jose Mercury News story here. He also rejected the attempts of LGBT advocacy groups to intervene to challenge and an anti-gay group to defend Prop 8 as direct parties, indicating that they could instead present their views through amicus curiae ("friend of the court") briefs. The City and County of San Francisco was allowed to intervene, but only for limited purposes according to some news accounts. Let's hope that's enough to ensure the plaintiffs challenging Prop 8 establish an adequate factual basis for their claims.

Portugal's Marriage Exclusion Upheld

"Something good could happen/Something good could have happened"

In a closely divided decision, the Constitutional Court of Portugal voted 3 to 2 to uphold that country's restriction of marriage to male-female couples against a challenge based on a provision in the Portuguese Constitution forbidding sexual orientation discrimination, reports the Associated Press. I believe this is the statement from the Court's web site (but I do not read Portuguese). Unless the Court reverses course some time in the future or the European Court of Human rights accepts and agrees with the appeal of the lesbian couple denied a marriage license, marriage equality there will have to await the approval of Portugal's Parliament, which does not appear to be an imminent prospect.

Delhi High Court Curtails Sodomy Law

"Times are changing for the better"

Today the High Court of Delhi at New Delhi sharply limited Section 377 of the Indian Penal Code. Section 377, which prohibits "carnal intercourse" and has come to be known as the "unnatural offences" section, was facially neutral but in practice targeted LGBT persons. The Court held it unconstitutional insofar as it criminalized consensual sex acts between adults in private. In closing, the Court wrote:

"If there is one constitutional tenet that can be said to be
underlying theme of the Indian Constitution, it is that of
'inclusiveness'. This Court believes that Indian Constitution
reflects this value deeply ingrained in Indian society,
nurtured over several generations. The inclusiveness that
Indian society traditionally displayed, literally in every
aspect of life, is manifest in recognising a role in society for
everyone. Those perceived by the majority as “deviants' or
'different' are not on that score excluded or ostracised.
"Where society can display inclusiveness and understanding,
such persons can be assured of a life of dignity and non-
discrimination. ... In our view, Indian
Constitutional law does not permit the statutory criminal law
to be held captive by the popular misconceptions of who the
LGBTs are. It cannot be forgotten that discrimination is anti-
thesis of equality and that it is the recognition of equality
which will foster the dignity of every individual."

Supreme Court Repudiates Strip Search of 13-Year-Old, Denies Redress

"Will you strip for me?"

In Safford Unified School District No. 1 v. Redding, the U.S. Supreme Court today held, in an opinion by the imminently retiring Justice David Souter, that school officials violated the Fourth Amendment's ban on unreasonable searches and seizures by strip searching 13 year old Savanna Redding to look for common pain relievers. Once again proving his willingness to endorse outrageous legal conclusions, Clarence Thomas was the only Justice to dissent from this holding. Regrettably, the majority further concluded that the law was not sufficiently clear to justify allowing Savanna to seek money damages from the school officials. Cheers to Justice Stevens and Justice Ginsburg for appreciating the evidentness of the conclusion that “a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude.” The Supreme Court remanded the case for the lower courts to consider whether Redding could seek damages from the school district itself, but recovering from a local governmental unit like the school district is something the Court's precedents have made increasingly difficult.

Prop 8 Ruling Tuesday, May 26

"The waiting is the hardest part"

The California Supreme Court has given notice that it will hand down its decision in the challenge to Proposition 8 on Tuesday, May 26. Try not to let this preoccupy you during the Memorial Day weekend.

NY Assembly Votes for Marriage Equality

"It's up to you"

As reported in the New York Times, the New York state Assembly has voted 89-52 in favor of a bill opening civil marriage to same-sex couples. Proponents and opponents of the measure, which Governor Patterson supports, are now concentrating their efforts on the state Senate, where the defeat or passage of the bill is uncertain. Will New York become the sixth state in the U.S. to afford same-sex couples marriage equality?

Marriage Equality In Maine

"There's no stopping us now/Our love is here to stay"

The Associated Press has reported that Maine has just become the fifth state to allow same-sex couples to marry. Like Vermont, they did so through a vote of their state legislature. The Northeast is once again proving itself a leader on liberty and equality, and it's easy to understand why so many people feel a sense of momentum behind the drive for marriage equality.

Maine joins move towards marriage equality

"I must be dreaming"

The Associated Press has reported that the Maine legislature has voted in favor of a bill to allow same-sex couples to marry. If they vote "yes" a second time and Maine's governor, who has not decided whether to sign it, approves it, Maine would become the first state allowing same-sex couples to marry and the fourth in New England!

New Hampshire Takes Step Toward Marriage Equality

"They're gonna lead on"

The New Hampshire state Senate has joined the state House in passing a bill opening marriage to same-sex couples (story here). The bills would now have to be reconciled and the Governor have to sign it for the law to change. If New Hampshire makes the shift from its current parallel civil unions/civil marriage regime to one of equal marriage rights for same-sex couples, it would become the fourth state in New England with such rights (Massachusetts, Connecticut, and Vermont being the other three).

Marriage Recognition in District of Columbia

"Oh love - like liquid falling/Falling in cascades"

Not only did the Vermont legislature today open civil marriage to same-sex couples, but the D.C. Council unanimously voted (initially, with a final vote on the legislation to follow) to recognize and honor marriages of same-sex couples lawfully performed in other jurisdictions. What a week for marriage equality!

Marriage Equality in Vermont

"And the walls come tumbling down"

As reported by the Burlington Free Press, the Vermont legislature has just overriden the governor's veto of a bill opening civil marriage to couples regardless of sex/gender. With Iowa last Friday, that makes two states to honor marriage equality within five days, doubling the number of states that allow same-sex couples to marry, with Massachusetts and Connecticut the other two, since Prop 8 is in effect in California precluding the state from issuing new marriage licenses to same-sex couples.

Vermont also becomes the first state to do so without court command (since the Baker v. State decision in 1999 left Vermont the initial choice of opening up marriage or creating another institution to provide the rights, benefits, and obligations of marriage, which the legislature did by creating "civil unions"). Add to that the fact that Vermont was the first state to abolish slavery and it really appears to be a path-breaking state.

Marriage Equality Comes to Iowa

"What a Difference a Day Makes"

Occasionally citing the May 2008 California Supreme Court decision in In re Marriage Cases, the Iowa Supreme Court today unanimously held that the state constitution's guarantee of equal protection requires the state to allow same-sex couples to marry civilly. Adopting a practical analysis, the Court determined that the marriage exclusion discriminated on the basis of sexual orientation. Following the Connecticut Supreme Court in Kerrigan v. Commissioner of Public Health (after independent analysis), the Iowa Supreme Court held that discrimination against gay men and lesbians must be tested by a less deferential form of judicial review than applies in run of the mill cases of legislative distinctions. Because the Court concluded that the marriage ban could not pass intermediate scrutiny, the Court didn't need to decide whether sexual orientation discrimination should receive the least deferential form of review, strict scrutiny.

The Court's decision goes into effect in 21 days [**unless the losers file a petition for rehearing, which could somewhat delay things**-edit]. It's opinion is here, though this morning the Court's web site is extremely busy.

Sweden to Allow Same-Sex Couples to Marry

"Somebody get some flowers! Somebody get a ring!"

I'm trusting this isn't an April Fool's Day prank -- do they even observe this day in Scandinavia? -- but the national legislature in Sweden approved a law today that will open marriage to same-sex couples starting May 1. You can check out the Wikipedia entry that's already up here. Northern Europe now boasts three of the seven countries that don't discriminate on the basis of sex regarding whom their laws allow to get married.

Japan to Recognize Foreign Marriages of Same-Sex Couples

" A legal union, you're rounding third base"

As reported by the AFP, Japan's justice ministry has issued a directive that will allow Japanese citizens to marry partners of the same-sex in foreign countries that allow this. So, while Japan is no Netherlands, Belgium, Spain, Canada, South Africa, Norway, Massachusetts, or Connecticut (all of which allow same-sex couples to marry, but it's now ahead of the vast majority of U.S. states on this issue.

Pro-Marriage Equality Initiative Filed

"Ooo and it's alright and it's comin' 'long"

Yesterday, March 19, 2009, the California Secretary of State provided an official summary for a proposed initiative (the "California Marriage Equality Act") to re-amend the state constitution to restore same-sex couples' equal right to marry. Proponents will now have until August 19 to gather the not quite 700,000 signature required to qualify it to go before the voters. Besides repealing the section of the California Constitution added by Proposition 8, the measure specifies -- apparently to forestall some of the chief fear tactics used in the Yes on 8 campaign -- that it shall not be interpreted to change school curricula or force clergy to perform services or duties "incongruent with their faith."

"A Horse with No Name"?

Chief Justice George and Marriage Without the Name

During oral argument yesterday in the California Supreme Court, Chief Justice Ronald George more than once questioned attorneys for those challenging Proposition 8 about the scope of the measure. I think his questions may not have fully appreciated the structure of the challengers’ “revision” argument (or may just have been designed to elicit a public articulation by counsel). But it seemed that the Chief Justice and the attorneys may have been slightly talking past one another.

In his first questions and comments to Shannon Minter, Legal Director of the National Center for Lesbian Rights arguing on behalf of challengers to Prop 8, the Chief Justice suggested that the petitioners assumed that Prop 8 overturned not only same-sex couples right to marry but also the California Supreme Court’s holding in the marriage cases last year that sexual orientation was a suspect classification and laws discriminating against gay and lesbian people subject to non-deferential “strict scrutiny” review by courts. “To the extent Proposition 8 is to be construed narrowly,” not affecting the other holdings the Court rendered, Chief Justice George suggested, “your argument that this is a wholesale revision as opposed to an amendment is weakened.”

Mr. Minter quickly clarified that he did not assume that Prop 8 touched those other holdings of the marriage cases. But that position does not weaken the argument that Prop 8 should be judged a “revision” to the state constitution. The Chief Justice’s phrasing “wholesale revision” is, as he is well aware, not the terminology used by the state constitution, which simply distinguishes between a power to revise and a power to amend the constitution (without defining either or the difference). “Wholesale revision” sounds like what the Court in past decisions has called a “quantitative revision” to the constitution, one which ranges so broadly and changes or adds so much to the document that it cannot be judged a mere, minor perfecting “amendment.” Given the number of clauses in the state constitution that do guarantee equality in various ways, there is a nonfrivolous argument that Prop 8 is a quantitative restriction. But it’s not the strongest basis for the challenge to the measure, and Minter appropriately noted that the parties were not making that argument when Justice Kennard asked about this a little further into the argument.

Rather, petitioners are arguing that Proposition 8 amounts to what the Court has termed a “qualitative amendment,” one that although not so voluminous in its changes nonetheless has a profound effect on existing constitutional arrangements. It is the denial of equal access to a fundamental right based on a bare majority vote, which is all that Prop 8 needed to pass, that cuts the judiciary out of its longstanding role of protecting fundamental rights and particularly vulnerable minorities, diminishes the foundational guarantees of equality in the state constitution, correspondingly deprives California’s democracy of the assurance of equal citizenship and equal protection that is necessary to the consent of the governed and democratic legitimacy, and marks the measure as a revision and not a mere amendment to the state constitution. All that holds true even though Prop 8 leaves intact other salutary aspects of the California Supreme Court’s decision in the marriage cases.

Yet another point of possible communication failure may have come with respect to the question whether Proposition 8 leaves intact rights that come with marriage, other than what Chief Justice George termed “the nomenclature” or “the label” marriage.

When the Chief Justice next addressed Minter, George asked: “What about the other rights though that go beyond the mere designation. In answering that, what significance if any do you put to the rebuttal argument [in the official ballot pamphlet that] stated … Your yes vote means that only marriage between a man and a woman will be valid or recognized in California, but Proposition 8 will not take away any other rights or benefits of gay couples?” (As a sidenote, it was a little perplexing to hear the Chief Justice speak about “mere designation” after writing last year’s opinion that so eloquently articulated the ways in which same-sex couples’ being treated the same as different-sex couples in their relationships, including access to the designation marriage, was integral to the equal dignity and respect required by the state constitution.)

Likewise, when Chief Justice George was speaking with Kenneth Starr, Dean of the Pepperdine Law School and counsel for the official proponents of Proposition 8 defending the measure, Dean Starr tried to insist that Prop 8 did not “invalidate” the marriages of same-sex couples entered into before the election, that there remained a “full panoply of rights.” The Chief Justice immediately pressed him, “So they keep the rights?” Whereupon Starr backed off or clarified, saying that the pre-election marriages of same-sex couples were not voided retroactively from the outset, but that California could not generally treat those couples who entered them as marriages after the election. But George wanted to know why that was, why they wouldn’t keep the rights other than the name, “even though the rebuttal argument [in the ballot pamphlet] says Proposition 8 takes away no other rights or benefits?”

What Chief Justice George might have been contemplating was a state of affairs in which the Court holds that Proposition 8 takes away the power of the state of California to call same-sex couples “married” or their relationships “marriages,” but leaves in place all the rights acquired by couples who entered into their former-marriages before the election, both rights that were used before the election and ongoing rights from November 5, 2008 forward. These presumably would not be domestic partnerships, because there are some rights of marriage that the domestic parternships lack (not to mention that they would not have been entered into in the fashion that the domestic partnership law provides). They would rather be some new, as yet unnamed relationship created by the state constitution as a back-up, partial-equality measure if Proposition 8 became a valid part of the constitution but only stripped away “the nomenclature” of marriage. A horse with no name, as it were.

That would not be an unreasonable reading of the effect of Proposition 8 in light of its language and the official ballot description. It’s a little unusual – but then again, Proposition 8 was itself an unprecedented purported exercise of the amendment power. And it would also seem to suggest that the domestic partnership law would have to be broadened, by virtue of the California constitution, to be identical to state marriage law except for the name.

"Mama take just a little bit from my heart"

Justice Kennard and "small" deviations from equality

The California Supreme Court held oral arguments today in the litigation challenging Proposition 8, which the voters approved to change the state constitution to strip away the right to marry from same-sex couples. It’s always perilous to read too much into the Justices’ questions. But one line of questioning by Justice Joyce Kennard suggests a possible misapprehension about the nature of the arguments against the validity of Proposition 8, which I hope does not ultimately lead her astray. Here’s my reasoning. (All quotations are from my notes from watching the webcast of the oral arguments and have not been verified against the archived footage.)

Shannon Minter, Legal Director of the National Center for Lesbian Rights, argued first on behalf of the challengers of Prop 8. Justice Kennard asked Mr. Minter: “Is it your argument in this proceeding that the passage of Proposition 8 also took away in addition to the label of ‘marriage’ the core of the substantive rights of marriage that the majority of this court outlined in the marriage cases last year? Continuing a similar theme, Justice Kennard questioned Raymond Marshall who argued for a variety of civil rights groups opposed to Proposition 8: “Given the precedential values that have been decided by this Court in previous decisions, how do you distinguish them here where the people left in place most of what this Court declared to be proper under the California constitution?” And: “What about the argument that what we are dealing with in this particular case is a narrow exception to equal protection, by denying same-sex couples the label of ‘marriage,’ but leaving intact the substantive rights this Court established in the marriage cases last year? …. You haven’t eliminated or taken away equal protection.” And when Mr. Minter stepped up for rebuttal, Justice Kennard incredulously asked: “Is it still your view that the sky has fallen in as a result of Proposition 8 and gays and lesbians are left with nothing?”

One possible implication of these lines of questioning would be to suggest that Proposition 8 isn’t a revision if it only deprives same-sex couples of part of the right to marry and doesn’t wholly strip gay and lesbian people of all equal protection rights. But those positions are not being argued by any of the parties or amici in the case, and for good reason. Let me take them in order.

First, it would be a colossally bad move for the Court to embrace a standard that said a proposed constitutional change would count as a revision if but only if it takes away all benefit a group of people might get from a right but not if it takes away only a portion. Were that the rule, initiative drafters could always take care to preserve some application of the right they want to strip from a group and thereby bring it within the scope of the initiative-amendment power, rather than having to pursue the more deliberative and cumbersome revision process (which requires supermajority votes in each house of the state legislature). An all-or-nothing rule of this sort would be readily evaded and would defeat the point of the California constitution’s provision of different ways to make two different kinds of changes.

The argument could not really be salvaged by adopting a standard that says, a proposed constitutional change counts as an amendment (adoptable via initiative) if it takes away only a little bit of a constitutional right, but not if it takes away too much of the right. Balancing tests may be inevitable in constitutional law, but if the California Supreme Court thinks the doctrinal rules they adopt ought to give at least some guidance to voters and legislators, something less mushy than “I know it when I see it” (which was former U.S. Supreme Court Justice Potter Stewart’s unhelpful characterization of “obscenity,” a content-free standard that Justice Carlos Moreno quoted in today’s arguments).

Second, the observation that gay and lesbian people still enjoy some equal protection rights after Proposition 8 is not really responsive to the challengers’ argument. They contend that Prop 8 should be deemed a revision to the state constitution that could only originate in the legislature, not via petition-initiative the way Prop 8 was adopted. The reason they offer is that it strips away not just any right but a right that is “fundamental” in our state constitution (here, the right to marry), and that it takes that right away not just from any group but from a group (here, lesbigay persons) defined by a suspect classification (here, sexual orientation). By doing that, Prop 8 doubly undermines the historic role of the court and denies it the ability to enforce the principles of equality that are at the very foundation of the California constitution.

The challengers are not claiming that gay and lesbian people would currently enjoy no constitutional equality rights if Prop 8 is part of the constitution. If they were making that hyperbolic claim, then the assumptions of Kennard’s questions would be adequate rejoinder to the challengers’ argument.

The challenge to Proposition 8 instead rests on the very sensible contention that, if Proposition 8 is a permissible exercise of the amendment power, then the Court would have to include that any law which took away any right from any group of people would also have to be permissible, and what that means is that any possible equal protection holding of the state supreme court could be overruled by a bare majority of voters (after a petition got signatures from a mere 8% of those who voted in the last election for governor). And, as I believe Therese Stewart, arguing for the City and County of San Francisco put it, “a guarantee of equal protection that is changeable by a majority is no guarantee at all.

To understand why, first note that typically a “fundamental right” is the kind of right most carefully protected by the judiciary from governmental infringement. Last year the California Supreme Court held that the right to marry was fundamental. And the Court was clearly and explicitly talking about the right to enter the institution called “marriage” that different-sex couples were allowed to enter. Prop 8 takes that right away just from same-sex couples. Since fundamental rights are the most judicially protected rights, no other right would have a stronger claim on the Court. So, if a majority can do it with the right to marry, it can do it with any right.

Next bear in mind that discrimination against a group defined by a suspect classification (like a racial minority, or women, or lesbigay people) is subject to more powerful judicial scrutiny than any other form of discrimination. So if it’s okay to take away a fundamental right from such a group, as Prop 8 attempts, then a mere amendment passed by a bare majority of the electorate could take away a fundamental right from any group.

What the challengers are arguing, therefore, is that it’s not just the dignitary harm that Proposition 8 inflicts upon same-sex couples and their families that renders Prop 8 a revision. Rather, it is the principle that a decision upholding Prop 8 would have to embody: Any right may be taken away from any group by a mere amendment passed by a bare majority of voters, with no filter of legislative deliberation required (as would be the case for a proposed constitutional revision).

Dean Kenneth Starr, arguing for the official proponents of Proposition 8, did not shrink from that conclusion. He made clear that he thought there was no limit in the California constitution to what voters could do to strip away any rights from any group. That might be regrettable, but it’s just the constitution we have, he basically said.

Now, he did offer the Justices reassurance by arguing that the “backstop” or “failsafe” to prevent horrid occurrences from happening was the U.S. Constitution. But this argument is in tension with the long-held position that the rights guarantees of the California constitution are independent of the federal constitution. Our rights under the state constitution are to be interpreted as forces of their own, not dependent upon the federal constitution or the federal government. The point of our California constitution is to secure the blessings of liberty, which include the freedom to marry, as counsel for the challengers observed during argument today.

Let us hope that at least four members of the California Supreme Court remember that and do not shy away from their duty to preserve the foundational commitment to equality enshrined throughout the California Constitution. As Ms. Stewart reminded the Court, democracy can only lay claim to legitimacy if it embraces the commitment to equal protection. Proposition 8 attempts to erode that commitment, taking away the most judicially protected kind of right from a group subject to the highest level of judicial protection. The fact that it leaves other rights or other aspects of a right intact – for now – should not be enough to obscure the pernicious way it says to the Court, “no matter how strong your constitutional ruling, a bare majority can wipe it out with the most casual kind of constitutional change.”

"You Make Me Sick"

Supreme Court upholds state law suits vs. drug manufacturers for failure to warn

The U.S. Supreme Court today decided Wyeth v. Levine, holding 6-3 that a drug manufacture could be sued under Vermont products liability law for failure to give adequate warnings even though its drug label had been approved by the Food & Drug Administration.

Justice Stevens's majority opinion, joined by Justices Kennedy, Souter, Ginsburg, and Breyer, rejected the argument that federal law and the label approval preempted the suit brought under state law. Justice Thomas did not join the majority opinion but agree with it judgment; he wrote separately to question judicial invalidation of state law under "implied preemption" doctrine (as distinguished from cases where federal statutes expressly specify that they are preempting state law) based on nebulous "frustration" of federal purposes. Justice Alito, joined by Chief Justice Roberts and Justice Scalia, dissented, arguing that Supreme Court precedent and general principles of implied preemption forbade this suit under state law.

As a consequence of today's decision, states retain important freedom to protect their residents from harms flowing from inadequate warnings on pharmaceuticals.

"Marry Me a Little"

GLAD sues challenging DOMA

Gay and Lesbian Advocates and Defenders (GLAD) has filed a lawsuit in federal district court challenging the interpretation and constitutionality of the federal Defense of Marriage Act (DOMA) as applied to the various plaintiffs.

The complaint asserts that Section 3 of DOMA, which refuses to recognize any marriage of a same-sex couple even if lawfully entered in some U.S. state or foreign country, violates the equal protection obligations the U.S. Constitution places on the federal government. The suit is not challenging DOMA or even Section 3 on its face, but only as applied to the plaintiffs to deny them equal benefits under "laws governing benefits for federal employees and retirees, the Internal Revenue Code, the Social Security laws and the laws and regulations governing issuance of passports." In some cases, the suit alleges, the laws have been interpreted in ways that DOMA does not requirel; where DOMA does require the discrimination at issue, it is unconstitutional, according to the lawsuit.

The suit does not yet specify whether or not the plaintiffs are arguing that the constitutionality of DOMA must be assessed under what the court's term "strict scrutiny," the least deferential form of judicial review. It could be read as arguing that these applications of DOMA do not even have a "rational basis," the most deferential form of review requiring only that challenged laws have a "rational relationship" to "a legitimate governmental interest." In particular, the various counts of the complaint conclude that DOMA "creates a classification that treats similarly-situated individuals differently without
justification," and it maintains that Section 3 of DOMA "is motivated by disapproval of gay men
and lesbians and their relationships, an illegitimate federal interest." (Some of the asserted federal interests are rejected as illegitimate, and others are said either to restate the purpose to discriminate without explaining it or actually to be "subverted" by DOMA.)

It will be interesting to see how this litigation unfolds. Perhaps it will be the stimulus needed for Congress to repeal at least the federal definition section of DOMA, which as both the complaint in this lawsuit and Bob Barr in recent public pronouncements have concluded, undermines federalism by arrogating to the federal government the power to determine what is a valid marriage outside the immigration and naturalization context.

GLAD is the legal rights organization that litigated and won the Massachusetts case that recognized same-sex couples' right to marry under that state's constitution.

Public Park Not Public Forum for Donated Monuments

Supreme Court rejects free speech challenge to park displaying donated 10 Commandments monument but rejecting Summum 7 Aphorisms monument

The United States Supreme Court has unanimously decided Pleasant Grove City, Utah v. Summum. When Pleasant Grove refused to display in the park a monument with the Seven Aphorisms of the small religion known as Summum, which adherents offered to donate, event though the city park permanently featured eleven other donated displays including a donated Ten Commandments monument, Summum sued. They argued that the city was unconstitutionally restricting their speech because of its content in a public forum, i.e., in the park.

But the Supreme Court has now held that the permanent monument was government speech, and so not subject to free speech challenge. (The question of whether the city was violating the Establishment Clause by displaying the Ten Commandments monument was not in front of the Court.) The Court was unanimous, although Justice Breyer concurred in the 8-Justice majority opinion and Justice Souter concurred only in the judgment, both writing separately to emphasize that the Court should not be too categorical in its conclusion that all permanent monuments are government speech not restricted by the Free Speech Clause of the First Amendment.

Assembly Judiciary Committee Embraces Revision Argument

Supports H.R. 5, Rejects Proposition 8

Ron Buckmire, who blogs under The Mad Professah Lectures, has reported that the California Assembly Judiciary Committee has just voted 7-3 ("all Republicans voting no") to approve House Resolution 5, which condemns Proposition 8 as an improper attempted revision of the California Constitution that failed to follow the proper procedures. While H.R. 5 has no binding legal force, if the House were to adopt it, this would further demonstrate the state legislature's commitment to constitutional equality principles and could signal that a judicial decision invalidating Proposition 8 would not be a very countermajoritarian ruling.

Prop 8 Challenge Scheduled

Oral Argument Date Set

From the California Supreme Court web site: "The Supreme Court has announced that an oral argument will be held in the Prop. 8 cases on Thursday, March 5, 2009, from 9:00 a.m. to 12:00 p.m. The court will issue a written opinion in the cases within 90 days of oral argument." The arguments will be carried on cable on the California Channel. The Court's news release is here.

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).