Wednesday, May 28, 2008
"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.
Tuesday, May 27, 2008
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.
Saturday, May 24, 2008
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.
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.
Thursday, May 15, 2008
I'm Getting Married in the Morning
The California Supreme Court has just held, 4-3, that the state constitution requires the government to allow same-sex couples to marry civilly. Chief Justice George wrote the majority opinion, joined by Justices Kennard, Werdegar, and Moreno. The court held that the least deferential form of review applied -- "strict scrutiny" -- because the exclusion of same-sex couples from civil marriage discriminated on the basis of sexual orientation and because it "impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple." More details soon.
Now, it might not actually be in the morning. Under Rule of Court 8.528(b), the decision will become final in 30 days unless the court orders otherwise. Notably, today's decision does not follow Vermont's or Massachusett's lead in offering legislators 6 months to fix the constitutional problem. In part, that seems unneeded because those states lacked the fairly comprehensive domestic partnership regime California enjoys. What the court instead said was that "Plaintiffs are entitled to the issuance of a writ of mandate directing the appropriate state officials to take all actions necessary to effectuate our ruling in this case so as to ensure that county clerks and other local officials throughout the state, in performing their duty to enforce the marriage statutes in their jurisdictions, apply those provisions in a manner consistent with the decision of this court." Nothing should keep a county (say, San Francisco) that wanted to from complying with the judgment before 30 days have run.
Now, it might not actually be in the morning. Under Rule of Court 8.528(b), the decision will become final in 30 days unless the court orders otherwise. Notably, today's decision does not follow Vermont's or Massachusett's lead in offering legislators 6 months to fix the constitutional problem. In part, that seems unneeded because those states lacked the fairly comprehensive domestic partnership regime California enjoys. What the court instead said was that "Plaintiffs are entitled to the issuance of a writ of mandate directing the appropriate state officials to take all actions necessary to effectuate our ruling in this case so as to ensure that county clerks and other local officials throughout the state, in performing their duty to enforce the marriage statutes in their jurisdictions, apply those provisions in a manner consistent with the decision of this court." Nothing should keep a county (say, San Francisco) that wanted to from complying with the judgment before 30 days have run.
Wednesday, May 14, 2008
California, Here I Come?
I'm already in the state, but others might end up traveling here: The California Supreme Court has now posted on its web site that the decision in the marriage cases (seeking the right to marry for same-sex couples) will be issued tomorrow. Generally they post decisions at 10:00 a.m. The opinion should be available here tomorrow at around 10:00.
Friday, May 9, 2008
In Sickness and in Health
Government employers in Michigan cannot offer health insurance to same-sex domestic partners, the Michigan Supreme Court ruled 5-2 on May 7, 2008 in National Pride at Work v. Governor of Michigan (opinion here). Interpreting a state constitutional amendment that was designed to keep same-sex couples from legally marrying, the state supreme court disregarded all the evidence that the voters only intended to affect the state’s marriage law and not domestic partnerships, and put its blessing on the Michigan Christian Citizens Alliance’s bait-and-switch tactics.
The so-called “marriage amendment” to Michigan’s constitution, crafted by the MCCA and its Citizens for the Protection of Marriage committee, was adopted by ballot initiative in 2004. It provides: “To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.” (Curiously, the pre-comma portion of this amendment did not actually appear on the ballot.) This language made Michigan’s marriage limitation amendment significantly broader than many other states’.
Just how much broader was the question in National Pride at Work, and the Michigan Supreme Court majority basically answered, “very.” Justice Markman’s opinion did not focus on the operative consequences of the “domestic partnerships” at issue, which fell dramatically short of those of marriage, which could have allowed the court to read the amendment as the dissent did, as simply precluding government from creating or accepting another state’s marriages between same-sex couples or comparable statuses like civil unions. Instead, the majority focused on the eligibility criteria for the lone benefit at issue (health insurance). Giving health coverage to a domestic partner “recognized” a domestic partnership for some purpose, and so would be unconstitutional if the domestic partnership were a union “similar” to marriage. “Because marriages and domestic partnerships are the only relationships in Michigan defined in termsof both gender and lack of a close blood connection, and, thus, have these core ‘qualities in common,’” the majority reasoned, “the domestic partnerships are unions similar to marriage.”
The interpretation adopted in the opinion of the court is far from preposterous. But in their rush to exemplify judicial restraint, the majority justices found clarity where the dissent saw ambiguity, and took that as their license to ignore considerations of justice as well as the likely intent of the Michigan electorate. Justice Kelly’s dissent recounted the significant evidence that a sizeable majority of the voters of Michigan wished only to keep their state constitution from becoming a tool to open civil marriage to same-sex couples, and in fact favored the extension of health benefits for the same-sex partners of government employees. And the amendment’s sponsor, the MCCA, repeatedly and publicly insisted that the measure wasn’t about benefits, just about the definition of marriage. (The majority questioned why the measure’s proponents’ views should get more weight than the opponents view, which suggested it would have more far-reaching consequences. But that’s how the U.S. Supreme Court has approached the U.S. Constitution, giving more weight to the Federalist Papers than to the Anti-Federalist.) Yet because the language of the measure the voters approved arguably could be read more broadly, forbidding the government to extend any marital benefit to a committed same-sex relationship as such, the majority deemed the “extrinsic” evidence of voter intent to be irrelevant. Caveat voter. (Troublingly, the Michigan “marriage amendment” is not expressly phrased as a restriction on government, instead providing that nothing but one man-one woman marriage “shall be ... recognized.” It is almost unthinkable that the court would hold this to forbid private companies from extending domestic partners benefits, but that reading might appear as “unambiguous” to the majority as its other conclusions seemed to them in National Pride at Work.)
What now? Perhaps governmental institutions such as the city of Kalamazoo, the University of Michigan, and Michigan State University, just to name a few, might redefine the eligibility for health benefits for domestic partners. Perhaps they could remove the limitation to same-sex couples, so that a man and an unrelated woman who chose not to marry could get domestic partner health benefits; alternatively, these institutions might continue to limit eligibility to same-sex couples but remove the restriction against certain close relatives forming domestic partnerships, so that two sisters could get DPP health benefits; or maybe they could remove both, so that a brother and sister could be domestic partners, for example. Either or both of these moves would eliminate at least one of the two features–sex limitations, and the exclusion of close relatives–which together made (same-sex) domestic partnerships “similar” to (different-sex) marriages in the majority’s eyes.
Whether that would be enough to make the “recognized” relationships sufficiently unlike marriage to make health benefits permissible is an open question, though. Footnote 14 of the majority opinion listed numerous other respects in which the majority justices regarded marriages and domestic partnership as similar relationships. The majority called attention to the binary nature of the relationship, undertaking obligations of mutual support, the necessity for a contract or agreement for the relationship to exist, minimum age requirements, indefinite durations of the relationship (until “one of the parties takes affirmative action to terminate the relationship”), and for some of the policies the requirement that the domestic partners share a common residence. (The majority’s argument on the last point invoked the possibly oxymoronic notion that common residence “typically defin[es]” the marriage relationship.)
In light of that litany, it could be that the majority would not find providing any benefit to a domestic partner or partnership consistent with the state’s “marriage amendment” unless the eligibility criteria were so loose that they did not connote a relationship at all in any meaningful sense of the word. A policy that allowed an employee to designate any one person whatsoever of her or his choice to be eligible for health insurance coverage might pass muster with the majority precisely because it would not look like it is extending any official respect to the relationship of a committed same-sex couple. If that were to prove right, then the Michigan Supreme Court would have essentially turned a state constitutional amendment “To secure and preserve the benefits of marriage” into a general-purpose repudiation of the dignity of same-sex couples and relationships.
By denying the ability for government to provide any benefit to same-sex domestic partners that is offered to married couples, unless they can get the state constitution re-amended, that also might make Michigan’s “marriage amendment” more vulnerable to constitutional challenge. By increasing the broad sweep of the measure, it would more closely resemble the anti-lesbigay Amendment 2 to Colorado’s constitution, which the U.S. Supreme Court held violated the Equal Protection Clause in Romer v. Evans in 1996. Of course, the composition of the Supreme Court today is different from its composition in 1996, with Justice O’Connor replaced by Justice Alito, who so far appears further to the right on the Court than did O’Connor. So the theoretical prospect of a federal constitutional ruling in their favor may be cold comfort to the same-sex couples in Michigan now deprived of health insurance, and thus of equal pay for equal work.
The so-called “marriage amendment” to Michigan’s constitution, crafted by the MCCA and its Citizens for the Protection of Marriage committee, was adopted by ballot initiative in 2004. It provides: “To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.” (Curiously, the pre-comma portion of this amendment did not actually appear on the ballot.) This language made Michigan’s marriage limitation amendment significantly broader than many other states’.
Just how much broader was the question in National Pride at Work, and the Michigan Supreme Court majority basically answered, “very.” Justice Markman’s opinion did not focus on the operative consequences of the “domestic partnerships” at issue, which fell dramatically short of those of marriage, which could have allowed the court to read the amendment as the dissent did, as simply precluding government from creating or accepting another state’s marriages between same-sex couples or comparable statuses like civil unions. Instead, the majority focused on the eligibility criteria for the lone benefit at issue (health insurance). Giving health coverage to a domestic partner “recognized” a domestic partnership for some purpose, and so would be unconstitutional if the domestic partnership were a union “similar” to marriage. “Because marriages and domestic partnerships are the only relationships in Michigan defined in termsof both gender and lack of a close blood connection, and, thus, have these core ‘qualities in common,’” the majority reasoned, “the domestic partnerships are unions similar to marriage.”
The interpretation adopted in the opinion of the court is far from preposterous. But in their rush to exemplify judicial restraint, the majority justices found clarity where the dissent saw ambiguity, and took that as their license to ignore considerations of justice as well as the likely intent of the Michigan electorate. Justice Kelly’s dissent recounted the significant evidence that a sizeable majority of the voters of Michigan wished only to keep their state constitution from becoming a tool to open civil marriage to same-sex couples, and in fact favored the extension of health benefits for the same-sex partners of government employees. And the amendment’s sponsor, the MCCA, repeatedly and publicly insisted that the measure wasn’t about benefits, just about the definition of marriage. (The majority questioned why the measure’s proponents’ views should get more weight than the opponents view, which suggested it would have more far-reaching consequences. But that’s how the U.S. Supreme Court has approached the U.S. Constitution, giving more weight to the Federalist Papers than to the Anti-Federalist.) Yet because the language of the measure the voters approved arguably could be read more broadly, forbidding the government to extend any marital benefit to a committed same-sex relationship as such, the majority deemed the “extrinsic” evidence of voter intent to be irrelevant. Caveat voter. (Troublingly, the Michigan “marriage amendment” is not expressly phrased as a restriction on government, instead providing that nothing but one man-one woman marriage “shall be ... recognized.” It is almost unthinkable that the court would hold this to forbid private companies from extending domestic partners benefits, but that reading might appear as “unambiguous” to the majority as its other conclusions seemed to them in National Pride at Work.)
What now? Perhaps governmental institutions such as the city of Kalamazoo, the University of Michigan, and Michigan State University, just to name a few, might redefine the eligibility for health benefits for domestic partners. Perhaps they could remove the limitation to same-sex couples, so that a man and an unrelated woman who chose not to marry could get domestic partner health benefits; alternatively, these institutions might continue to limit eligibility to same-sex couples but remove the restriction against certain close relatives forming domestic partnerships, so that two sisters could get DPP health benefits; or maybe they could remove both, so that a brother and sister could be domestic partners, for example. Either or both of these moves would eliminate at least one of the two features–sex limitations, and the exclusion of close relatives–which together made (same-sex) domestic partnerships “similar” to (different-sex) marriages in the majority’s eyes.
Whether that would be enough to make the “recognized” relationships sufficiently unlike marriage to make health benefits permissible is an open question, though. Footnote 14 of the majority opinion listed numerous other respects in which the majority justices regarded marriages and domestic partnership as similar relationships. The majority called attention to the binary nature of the relationship, undertaking obligations of mutual support, the necessity for a contract or agreement for the relationship to exist, minimum age requirements, indefinite durations of the relationship (until “one of the parties takes affirmative action to terminate the relationship”), and for some of the policies the requirement that the domestic partners share a common residence. (The majority’s argument on the last point invoked the possibly oxymoronic notion that common residence “typically defin[es]” the marriage relationship.)
In light of that litany, it could be that the majority would not find providing any benefit to a domestic partner or partnership consistent with the state’s “marriage amendment” unless the eligibility criteria were so loose that they did not connote a relationship at all in any meaningful sense of the word. A policy that allowed an employee to designate any one person whatsoever of her or his choice to be eligible for health insurance coverage might pass muster with the majority precisely because it would not look like it is extending any official respect to the relationship of a committed same-sex couple. If that were to prove right, then the Michigan Supreme Court would have essentially turned a state constitutional amendment “To secure and preserve the benefits of marriage” into a general-purpose repudiation of the dignity of same-sex couples and relationships.
By denying the ability for government to provide any benefit to same-sex domestic partners that is offered to married couples, unless they can get the state constitution re-amended, that also might make Michigan’s “marriage amendment” more vulnerable to constitutional challenge. By increasing the broad sweep of the measure, it would more closely resemble the anti-lesbigay Amendment 2 to Colorado’s constitution, which the U.S. Supreme Court held violated the Equal Protection Clause in Romer v. Evans in 1996. Of course, the composition of the Supreme Court today is different from its composition in 1996, with Justice O’Connor replaced by Justice Alito, who so far appears further to the right on the Court than did O’Connor. So the theoretical prospect of a federal constitutional ruling in their favor may be cold comfort to the same-sex couples in Michigan now deprived of health insurance, and thus of equal pay for equal work.
Tuesday, March 11, 2008
Tea Leaves and Sympathy
Divining case outcomes from questions and answers at oral arguments is perilous business in the best of circumstances. In the context of last week’s arguments before the California Supreme Court in the high-profile cases seeking the right to marry for same-sex couples, trying to determine the Justices’ votes based on their questions and comments is probably a fools errand.
The Los Angeles Times, however, concludes: “Three of the court’s seven justices strongly indicated that they would uphold the state law defining marriage as a contract between a man and a woman[.]” Although the Times does not specify whom it meant, my observation of the arguments leads me to suspect the paper is referring to Associate JusticesMarvin Baxter, Ming Chin, and Carol Corrigan. While the Times could perhaps be right about these Justices’ sympathies, I would not be certain.
The strongest of the Times’ calls is probably Justice Chin. He repeatedly pressed attorneys for the plaintiffs to agree that the rights and obligations provided by California to same-sex couples who register as domestic partners are “substantially” equal to those afforded different-sex couples who marry civilly. In responses to arguments that the exclusion of same-sex couples from civil marriage was nonetheless a deprivation of equal protection of the laws, he questioned: “But doesn’t that place rhetoric over reality?” But even Chin asked the attorney for the Proposition 22 Legal Defense Fund about parallels between the treatment of African Americans and the treatment of gay and lesbian persons: “But aren't the problems similar and haven’t the gay and lesbian community members gone through very similar kinds of discrimination?”
Justice Baxter also expressed a fair amount of skepticism. Curiously, though, he pushed a number of attorneys to state their agreement that if Proposition 22 (see Law of Unintended Consequences from March 29) governs not only the out-of-state marriages it was advertised as denying recognition to, but also marriages contracted within California, the legislature would lack the power to let same-sex couples marry while Prop 22 is on the books. Although this might be a sign that he is unsympathetic to the plaintiffs’ narrow interpretation of Prop 22, it could also be a suggestion that the state constitution precludes the legislature from looking out for the equality rights of lesbian and gay Californians in the face of anti-gay statutes adopted via ballot measures, leaving that job to fall elsewhere – perhaps to the Court?
Third, and in a similar vein, Justice Corrigan forced the attorney representing Governor Schwarznegger to agree with her that the issue of whether same-sex couples should be allowed to marry couldn’t really be left up to the legislative process per se if the Court concluded that Prop 22 applied not just to out-of-state marriages but also to marriages contracted within California; since the legislature cannot override a ballot initiative, “it might be somewhat more accurate to say you would leave it up to the democratic process.” She repeatedly worried about the point in time at which the plaintiffs believed the refusal to recognize marriages between same-sex couples “became” unconstitutional and how the Court could know whether the people of California were far enough along in their understanding of the evolution of marriage to open that institution to same-sex couples. “That to me is the essential question here; if society is different now how can we say that the majority of Californians have turned the corner, made this change, we now as the body politic are ready?”
But Justice Corrigan’s questions too were far from one-sided. When the attorney for the Proposition 22 Legal Defense Fund attempted to argue that procreation provided a rational basis for the government to exclude same-sex couples from civil marriage, the Justice asked: “Well then should we have marriage laws that say , that say you can’t marry unless you are prepared to have children, or capable of having children, or your marriage doesn’t count until you do have children? I’m puzzled by this somewhat narrow definition of why the state gets involved. Certainly that is a very important aspect of this institution, but it is not the sine qua non, is it?”
Ultimately, trying to discern the Justices sympathies from the questions at last week’s oral argument is probably not much more effective than trying to read tea leaves, and whether she was speaking about individual Justices or the state Supreme Court as a body, Justice Kennard probably summed it up best: “You don’t know where we’re going.”
The Los Angeles Times, however, concludes: “Three of the court’s seven justices strongly indicated that they would uphold the state law defining marriage as a contract between a man and a woman[.]” Although the Times does not specify whom it meant, my observation of the arguments leads me to suspect the paper is referring to Associate JusticesMarvin Baxter, Ming Chin, and Carol Corrigan. While the Times could perhaps be right about these Justices’ sympathies, I would not be certain.
The strongest of the Times’ calls is probably Justice Chin. He repeatedly pressed attorneys for the plaintiffs to agree that the rights and obligations provided by California to same-sex couples who register as domestic partners are “substantially” equal to those afforded different-sex couples who marry civilly. In responses to arguments that the exclusion of same-sex couples from civil marriage was nonetheless a deprivation of equal protection of the laws, he questioned: “But doesn’t that place rhetoric over reality?” But even Chin asked the attorney for the Proposition 22 Legal Defense Fund about parallels between the treatment of African Americans and the treatment of gay and lesbian persons: “But aren't the problems similar and haven’t the gay and lesbian community members gone through very similar kinds of discrimination?”
Justice Baxter also expressed a fair amount of skepticism. Curiously, though, he pushed a number of attorneys to state their agreement that if Proposition 22 (see Law of Unintended Consequences from March 29) governs not only the out-of-state marriages it was advertised as denying recognition to, but also marriages contracted within California, the legislature would lack the power to let same-sex couples marry while Prop 22 is on the books. Although this might be a sign that he is unsympathetic to the plaintiffs’ narrow interpretation of Prop 22, it could also be a suggestion that the state constitution precludes the legislature from looking out for the equality rights of lesbian and gay Californians in the face of anti-gay statutes adopted via ballot measures, leaving that job to fall elsewhere – perhaps to the Court?
Third, and in a similar vein, Justice Corrigan forced the attorney representing Governor Schwarznegger to agree with her that the issue of whether same-sex couples should be allowed to marry couldn’t really be left up to the legislative process per se if the Court concluded that Prop 22 applied not just to out-of-state marriages but also to marriages contracted within California; since the legislature cannot override a ballot initiative, “it might be somewhat more accurate to say you would leave it up to the democratic process.” She repeatedly worried about the point in time at which the plaintiffs believed the refusal to recognize marriages between same-sex couples “became” unconstitutional and how the Court could know whether the people of California were far enough along in their understanding of the evolution of marriage to open that institution to same-sex couples. “That to me is the essential question here; if society is different now how can we say that the majority of Californians have turned the corner, made this change, we now as the body politic are ready?”
But Justice Corrigan’s questions too were far from one-sided. When the attorney for the Proposition 22 Legal Defense Fund attempted to argue that procreation provided a rational basis for the government to exclude same-sex couples from civil marriage, the Justice asked: “Well then should we have marriage laws that say , that say you can’t marry unless you are prepared to have children, or capable of having children, or your marriage doesn’t count until you do have children? I’m puzzled by this somewhat narrow definition of why the state gets involved. Certainly that is a very important aspect of this institution, but it is not the sine qua non, is it?”
Ultimately, trying to discern the Justices sympathies from the questions at last week’s oral argument is probably not much more effective than trying to read tea leaves, and whether she was speaking about individual Justices or the state Supreme Court as a body, Justice Kennard probably summed it up best: “You don’t know where we’re going.”
Friday, February 29, 2008
Law of Unintended Consequences
On Tuesday, March 4, the California Supreme Court hears oral arguments in the historic lawsuits seeking civil recognition of marriages between same-sex couples. Fearing a decision that the California Constitution requires such recognition, opponents of marriage equality are already gathering signatures to place measures on the ballot in November. If approved, these initiatives would amend the state constitution to try to keep marriage heterosexual. But assuming the state Supreme Court rules in favor of marriage equality, the proponents of one of those measures may be in for a rude awakening. It might turn out that instead of “protecting” marriage, the ballot measure would end up abolishing civil marriage in the state of California.
One of the proposed initiatives being circulated has been styled the “California Marriage Protection Act” by its proponents, who include Gail J. Knight. Were it adopted by the voters, this measure, which I’ll call the Knight Amendment, would add a single sentence to the state Constitution: “Only marriage between a man and a woman is valid or recognized in California.”
If these words sound familiar, they should. Back in 2000 state Senator Pete Knight, the since deceased husband of Gail, sponsored Proposition 22, a ballot initiative that added to the California Family Code the exact same language. That initiative was advertised as protecting California’s sovereign authority to decide which marriages to recognize from other states. It was approved by the voters by a substantial margin.
So why this new initiative? By amending the Constitution, the backers hope to place the issue of marriage equality beyond the reach of the legislature and the courts. And they hope to preclude the possibility that same-sex couples will be allowed to marry in California as a result of a state Supreme Court decision interpreting the California Constitution.
But the language of the proposed Knight Amendment is most likely inadequate to the task of keeping marriage as a heterosexual-only institution in California. It’s basic shortcoming is that it only puts a limit on which marriages California may treat as valid and recognize, but neither requires that California must treat as valid and recognize any marriages at all nor amends the equality provisions in the state constitution.
So, consider this plausible scenario. Sometime between March 4 and June 2 the California Supreme Court rules that the refusal of the state to recognize marriages between same-sex couples violates the Equal Protection Clause of the state constitution. In doing so, the Court would necessarily be holding that the robust domestic partnership laws of the state do not suffice to treat same-sex couples equally with different-sex couples. If the Knight Amendment then qualified for the November ballot and the voters approved it, we would be left with the following state of affairs: It would not satisfy the California constitution’s equality guarantee to allow different-sex couples but not same-sex couples to marry; but it would not satisfy the state constitution’s Knight Amendment to allow same-sex couples to marry.
How then could the state satisfy both those constitutional constraints, as would be their duty? By not letting any couples marry. California could abolish “marriage” as such, and perhaps substitute domestic partnership for all couples, instead of just for same-sex couples and elderly different-sex couples as is currently the case. If the only formal relationship status the state offered couples were a domestic partnership, then it would be treating same-sex couples and different-sex couples equally for state constitutional purposes and so not violating the Equal Protection Clause of the California Constitution. And if the state did not recognize any marriages as “marriages,” it would not violate the proposed Knight Amendment, which does not specify that “marriage between a man and a woman” shall be recognized or valid in California. This measure says “only,” and so would be violated only if the legislature afforded recognition to some marriages in addition to marriages between a man and a woman. True, the measure’s proponents and language seem to expect that marriage would continue to exist, but the Knight Amendment doesn’t expressly require that – unlike some of the other circulating ballot measures, which do specify that marriage shall not be abolished.
I know that may seem like an unsatisfyingly technical interpretation of state constitutional provisions. Moreover, I am one of a group of constitutional law professors in California who filed an amicus brief arguing that a legislative choice to abolish marriage rather than open the civil status to same-sex couples would be infected by anti-lesbigay bias and therefore would violate California's Constitution. Yet the proposed Knight Amendment would change the state Constitution and leave no room for a legislative choice to allow same-sex couples to marry. So the situation would be different if the Knight Amendment were adopted. In that case, the California courts would act within their authority to declare that the best that could be done to satisfy constitutional equality principles under the circumstances would be to eliminate marriage, because marriage could only exist in a discriminatory form under the Knight Amendment.
Subscribe to:
Posts (Atom)