Prop 8 Proponents Ask California Supreme Court to Stop Marriages

“If I make improper suggestions
…
Desperate but not serious”

Here they go again:  Bypassing the lower state courts, the Proponents of Proposition 8 have filed a petition for a writ of mandate (here) asking the California Supreme Court to order the clerks of the counties in California to stop issuing marriage licenses to same-sex couples.  It seems very unlikely that the California Supreme Court would exercise its discretion to take up this matter and then rule in favor of the proponents, especially since those proponents are or come very close to asking the state court to interfere with a federal court injunction.

In a nutshell, the proponents are arguing first that Prop 8 is actually constitutional, that federal judge Vaughn Walker was mistaken in ruling to the contrary after the trial on Prop 8, and that the U.S. Supreme Court has not disagreed with them because it dismissed the Prop 8 appeal on standing grounds rather than reaching the constitutional equal protection or right to marry issues.  Second, they argue that county clerks have a ministerial duty to enforce the marriage laws of the state, which in their view include Prop 8, and that by ordering them not to, State Registrar Tony Agurto, following the legal conclusion of Attorney General Kamala Harris, violated the provision of the California Constitution that bars administrative agencies and at least some governmental executive officials from refusing to enforce state laws on the ground that they’re unconstitutional unless an appellate court has made a determination that the state law at issue is indeed unconstitutional.  (Although the U.S. Court of Appeals for the Ninth Circuit did “make a determination” that Prop 8 is unconstitutional, the proponents of the measure argue that since the U.S. Supreme Court vacated that decision, it cannot satisfy this state constitutional clause.)  And, third, they argue that the issue is so important, implicating as it does (in their view) the efficacy of the state initiative process, that these supposedly lawless same-sex marriages must be stopped immediately.

Unless a majority of the California Supreme Court Justices are extremely peeved that the U.S. Supreme Court ruled that the Prop 8 proponents lacked federal court standing, this latest effort to revive Prop 8 (or at least to demonstrate to constituents the proponents’ need for funds to keep up their committed fight for the measure’s legal life) is unlikely to go anywhere.  It’s certainly unlikely to result in an immediate order against issuing marriage licenses to same-sex couples.  However important the rule of law and the California initiative process may be, the petition contains no explanation for why those cannot be vindicated through an orderly judicial process that resolves Prop 8’s constitutionality and an order at the end of it to resume enforcing Prop 8, if that judicial process concludes it really is constitutional.

Moreover, this petition dangerously veers into or close to asserting the power of state courts to interfere with federal court injunctions.  Indeed, the proponents’ arguments make claims about the federal court’s supposed lack of authority of have bound certain defendants in certain ways.  Given our system of federalism, and specifically of the supremacy of federal law, state courts just are not allowed to disregard or narrow federal court orders (as was made clear to the chagrin of the segregationist South in the mid twentieth century).  Even if they were right that the state Attorney General erred in concluding that county clerks are within the terms of the federal court injunction against Prop 8 as employees controlled or supervised by the state defendants, the proper route to clarify the scope of a federal court injunction is to return to that federal court and ask it to rule.

Finally, in what is hard to believe is a good faith mistake, the proponents do not acknowledge that the City and County of San Francisco was allowed by Judge Walker to intervene as a plaintiff challenging Prop 8.  Instead, they refer repeatedly to “the four plaintiffs,” meaning the two same-sex couples who were plaintiffs.  They then argue that because those couples are now married, the federal injunction cannot even apply to Los Angeles and Alameda Counties, where those couples reside.  (Again, that’s a question about the proper scope of the federal injunction that the state courts cannot do anything about.)  But since San Francisco was a prevailing plaintiff, and the federal court injunction prohibits Prop 8 from being enforced against it, at a very minimum it can continue to issue marriage licenses to same-sex couples even if no other county could (which I do not believe to be the case).  Because Californians can get a marriage license in any county regardless of their residence or where the wedding will be held in the state, the Prop 8 proponents desperate, last-ditch (one hopes!) petition here cannot stop marriage equality in the state.  The futility of their petition is, thus, one more reason why the California Supreme Court is likely to deny it.  For the sake of those same-sex couples planning marriages and weddings, I hope the court does so quickly.

Times Change

Oh there been times that I thought I couldn’t last for long

But now I think I’m able to carry on

As many across the U.S.A. celebrate Independence Day, I’m finally taking a moment to write briefly about a couple of the Supreme Court’s late June decisions from the end of what’s referred to as its October 2012 term (i.e., its sessions of hearing and deciding cases for 2012-13).  The Court by the narrowest margin invalidated a key provision of the Voting Rights Act, leaving another provision inoperative.  Yet by other five-to-four lineups, the Court also restored same-sex couple’s right to marry in California and struck down the federal so-called Defense of Marriage Act (“DOMA”), which required the federal government to discriminate against lawfully married same-sex couples.  One common theme of the Court’s decisions in the voting rights and marriage equality areas is the idea that times change, and with them potentially changes the constitutionality of government action.

In Shelby County, Alabama v.Holder, the five more right-leaning Justices on the Court (all appointed by Republican Presidents) held unconstitutional the “coverage formula” in Section 4 of the Voting Rights Act of 1964 (“VRA”), and thereby rendered inoperative the “preclearance” requirement of Section 5 of the VRA.  Chief Justice Roberts’s opinion for the Court, joined by Justices Scalia, Kennedy, Thomas, and Alito, noted that it had upheld the constitutionality of the VRA after it was first adopted and after each of three earlier federal statutes reauthorizing and extending the VRA’s requirements.  In particular, Section 5 of the VRA prohibits covered jurisdictions, such as states or counties, from changing their voting practices without first getting “preclearance” from the Justice Department or from a three-judge federal court in Washington, D.C., which is only allowed if the change will have neither the purpose nor the effect of denying or abridging the right to vote “on account of race or color.”

Section 4 of the VRA contained a “coverage formula” specifying those jurisdictions to which this preclearance requirement applied.  It barred jurisdictions that had used things like literacy tests or “good moral character” requirements as preconditions for voting and had low voter turnout or registration in the 1964 presidential election.  Subsequent reauthorizations updated the date used to evaluate coverage, with nine states including Alabama and a number of counties across the nation covered by the preclearance requirement, and extended the requirement to cover a broader range of discriminatory practices.  The VRA also, however, had a “bailout” provision to allow jurisdictions to be relieved of the preclearance requirement provided they proved they had for ten years not used tests or devices, had not been denied preclearance for voting practice changes they sought, and had not lost been found by a court to have adopted voting changes with the purpose or effect of discriminating on the basis race or color.

It is this coverage formula that the Supreme Court struck down in Shelby County, and, since the statute otherwise contains no provision making the preclearance requirement apply to any states or counties, in practical effect the Court thereby also struck down Section 5’s preclearance requirement itself.  Although the Court had upheld the VRA as early as 1966, but now, “[n]early 50 years later, things have changed dramatically,” Chief Justice Roberts wrote.  He recognized that the improvement in disparities between black and white voter registration owe much to the VRA itself.  But today, the Court objected, coverage “is based on decades-old data and eradicated practices.”  Because the coverage formula applied only to some but not all states, the Court insisted that Congress “must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.”  In the eyes of the majority, “[o]ur country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

Justice Ginsburg, joined by Justices Breyer, Kagan, and Sotomayor (all appointed by Democratic Presidents), dissented and would have upheld the coverage formula.  They did not deny that times change and that “conditions in the South have impressively improved since passage of the Voting Rights Act.”  But they also believed it relevant that “the covered jurisdictions have a unique history of problems with racial discrimination in voting.”  They pointed to a study “ignored by the Court” that reasonably was taken by Congress to show “that the coverage formula continues to identify the jurisdictions of greatest concern.”  They protested that “hardly showing the respect ordinarily paid when Congress acts to implement the Civil War Amendments” (the 13th, 14th, and 15th Amendments), “the Court does not even deign to grapple with the legislative record.”  For the dissenters, times change, but so too do the forms that discrimination takes, as born out by history and as the Congress’s that enacted and reauthorized the VRA attempted to combat by imposing the preclearance requirement.  The dissenting Justices would have deferred to Congress’s conclusion, when reauthorizing the VRA in 2006, that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.”

The next day, in Hollingsworth v. Perry, the Court held five-to four (with Justices Scalia, Ginsburg, Breyer, and Kagan joining Chief Justice Roberts’s opinion) that the sponsor’s of California’s state constitutional amendment that had stripped same-sex couples of the right to marry lacked “standing” or the legal authority to take appeals from the trial court decision holding it unconstitutional.  Even though the Court did not reach the merits of the challenge to Prop 8 and so did not decide whether or not it in fact violated the Constitution’s Equal Protection Clause, this standing decision had the effect of letting same-sex couples marry again in the state for the first time since the measure was adopted in the November 2008 election.

The Court did reach the equal protection issue in UnitedStates v. Windsor, however, and five-to-four it held that DOMA Section 3, which limits the definition of “marriage” and “spouses” for federal law to male-female couples, unconstitutionally discriminated against same-sex couples validly married under state law.  Although the majority opinion by Justice Kennedy (which was joined by Justices Ginsburg, Breyer, Kagan, and Sotomayor) did not state that DOMA was ever constitutional, it spoke in terms of changed times and changing understandings.

The Court noted that Congress acted preemptively in 1996 to ban federal recognition of same-sex couples’ marriages before any state allowed them, “as some States were beginning to consider the concept of same-sex marriage.”  But then states did begin to allow or recognize marriages between same-sex couples:

“[U]ntil recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.  For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged.  For others, however, came the beginnings of a new perspective, a new insight.  Accordingly some States concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other. The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion.”

In the Windsor case, at issue was the federal government’s refusal to recognize Edie Windsor and Thea Spyer’s marriage, which New York did:  “After a statewide deliberative process that enabled its citizens to discuss and weigh arguments for and against same-sex marriage, New York acted to enlarge the definition of marriage to correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood.”  Times had changed, at least in New York, and the state’s determination to open marriage to same-sex couples “enhanced the[ir] recognition, dignity, and protection … in their own community,” something DOMA undermined, be design and in effect.  “The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other.”  In the majority’s view,

“For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status.  This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. I t reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.”  In denying recognition to this status across the board for federal purposes, DOMA violated constitutional equality principles; its purpose and effect were to express disapproval of same-sex couples whom states chose to protect as they realized the propriety of such protection. 

In Windsor Justice Kennedy did not, but might as well have, quoted his own language from the Supreme Court’s opinion in Lawrence v. Texas, the decision the Court issued ten years to the day earlier, striking down Texas’s law against certain kinds of sexual conduct by two people of the same sex.  There, he wrote that the people who wrote and adopted the Bill of Rights and Fourteenth Amendment “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”  Times change, and constitutional principles respond to those changes.