Sweet Melissa

Messing With Texas: Gay Divorce May Help Pave the Way for Equal Rights

Constant Readers,

In 2006, two dudes got married in Massachusetts where same-sex marriage is legal.

They moved to Dallas, Texas in 2007.

In January of this year, they decided to divorce and came up with an agreement for splitting all their assets.

Prollem is, you have to be a resident of Massachusetts to get divorced there.

So, these guys have two choices: (a) move back to Cambridge, re-establish residency and get divorced, or (b) file for divorce in Texas.

As you may have guessed, Texas doesn't recognize gay marriage.

But a Family Court Judge recently ruled that requiring the men to return to Cambridge, MA in order to get divorced, when heterosexual people don't have to return to the state where they were originally married in order to divorce, violates the Equal Protection clause of the United States Constitution.

According to the NYT article: In the last two years, courts in Indiana, Oklahoma and Rhode Island, for instance, have denied divorces to same-sex couples who had been married in other jurisdictions. All three have laws against gay nuptials. Courts in a few other states, notably New York and New Jersey, have allowed divorces to go forward for gay men and lesbians married in other states, even though they do not allow same-sex marriages.

I have emailed the mens' attorney for a copy of the ruling 'cause it ain't available online. Until we can see it, it'll be hard to know whether this case can survive the legal challenge it's about to face.

Oh, you didn't think Tehas Attorney General Greg Abbott was just gonna stand by and watch gay people be treated equally, did you? Of course, he's appealing the ruling on the grounds that since the people of Texas don't recognize gay people as married, they can't very well get divorced. (In 2003, when a similar situation arose involving a same-sex couple who wanted to dissolve a Vermont Civil Union in Texas, Abbott successfully made the same argument.  In re Marriage of R.S. and J.A. (Mar. 28, 2003). )   

So, he might win his fight to keep gay people married. Nice.

On the other hand: if the lower court ruling survives, it is not a far jump from "it's unconstitutional to make gay people leave the state to get divorced" to "it's unconstitutional to make gay people leave the state to get married."

In the meantime, let's put this case in the "There's More Than One Way To Challenge Anti-Homosexual Discrimination" file.

BONUS: Texas' divorce rate is higher than the divorce rate in Massachusetts. (.pdf of report here: Download Divorce Rates.)

San Francisco feels cold shoulder in marriage case

As you probably know, frenemies/attorneys Ted Olson and David Boies have teamed up to argue that California’s ban on same-sex marriage violates the U.S. Constitution. The case, Perry v. Schwarzenegger, is currently in the Northern California U.S. District Court, where boring preliminary matters are being sorted out. (pdf of the case docket Download Docket.)

In July, the San Francisco City Attorney’s Office filed papers to be added on as a plaintiff in the case. After all, City Attorney Dennis Herrera and his team are practically experts at litigating same-sex marriage issues.

However, the current plaintiffs in the case do not want The City involved. On Aug. 7, they filed an opposition to San Francisco’s participation, offering that The City should just write down why we support plaintiffs and send that to the judge instead of becoming a party. That’s the equivalent of handing us pom-poms instead of uniforms — "you can cheer, but you can’t play."

The possibility of delay is the main reason plaintiffs are nervous about opening up the tent to San Francisco. They argue that, if all aspects of the case are multiplied, the wheels of justice will grind even more slowly and with no discernible benefit. (pdf of the opposition Download Opposition to Intervene.)

Oral arguments will be heard Wednesday, August 19, so we’ll soon know whether The City will be playing or praying.

Mr. and Mr. Smith Go to Washington: Gay Marriage and the U.S. Supreme Court - Part Three

Constant Readers,

Here's my last bit on gay marriage for awhile. Before I leave this subject, I want to address the issue of how this would go to the Supreme Court.

Here are parts One and Two.

But let me take a minute to say that the quality of comments left by my brilliant readers on the prior posts makes me so proud! Y'all are wicked smaht!!

Hugs and kisses!

Moving on...

Right after the news broke that a couple of fancypants lawyers were taking the case of gay marriage to the federal courts, nine high-profile pro-same-sex marriage groups got together and issued a press release asking that the lawyers to Pretty Please NOT go the federal route. "It is by no means clear that a federal challenge to Prop. 8 can win now" it says. (Press release here: Download Don't go to the Supreme Court Press Release.)

Of course, there are good reasons to go the way of federal courts. For one, it is less of an expensive mess than one election or multiple elections. It also offers a finality that ballot propositions and regular laws do not - people and legislatures can giveth and can also taketh away. Courts don't do that as regularly - and if they change their minds, it's usually in favor of expanding rights, not shrinking them. Plus some people are just frustrated at dealing with the masses and want to get it over with already.

On the other hand, there are pitfalls to taking this matter to the federal courts. 

1. The case will probably be dismissed in about 30 seconds

The case that was just filed is the Perry case and here's the Complaint: Download Federal Court Complaint

NOTE: Generally, to bring a case in federal court, you need to be complaining about federal law. In this case, the way the Perry plaintiffs are getting in the federal door is by arguing that their rights under the United States Constitution (forget the CA State Constitution) are being violated by California's different  treatment of same and opposite marriage.

Back in 1972, after a Minnesota State Supreme Court held that it was okay to prohibit gay marriage, the plaintiffs appealed the case (Baker v. Nelson) directly to the United States Supreme Court, alleging, just like in Perry, that their federal constitutional rights were being violated.

NOTE: The plaintiffs in the Baker case could appeal directly to the U.S. Supreme Court because they were appealing the ruling of a State Supreme Court. In the present gay marriage case, the plaintiffs aren't appealing any State Supreme Court ruling - they are NOT saying that the Prop 8 case as wrongly decided. They are challenging the LAW in California, not a final state court ruling, so Perry has to go through lower courts first.

Okay, so, plaintiffs in the Baker case went directly to the US Supreme Court which, in a single sentence, dismissed the appeal “for want of a substantial federal question.”

This is very important. 

Allow me to translate for the Supreme Court: Whether gay people are allowed to marry in Minnesota has nothing to do with the United States Constitution. In fact we think this case is so dumb that we're not even going to fully explain this ruling.

Of course that case is 37 years old and nowadays, the Supreme Court would probably think it's at least worth explaining why the case is being tossed out, but Baker is still the law. And it is binding on lower courts.

So, the District Court will probably throw out the Perry case because current legal precedent says: whether gay people are allowed to marry in California has nothing to do with the United States Constitution. (Remember: without a U.S. Constitutional claim, there's no right to be in federal court.)

If that happens: the plaintiffs will probably appeal that dismissal to the Ninth Circuit. If the Ninth Circuit throws it out, plaintiffs can appeal to the U.S. Supreme Court and try to get them to reverse the Baker ruling. (There's no guarantee that would actually happen, by the way.) A reversal by the Supreme Court would just reverse the rule that federal courts can't hear gay marriage claims. Nothing more.

If all that happens: Perry plaintiffs would have to go back to the District Court to litigate the heart of the case: whether, in marriage, separate but equal is constitutional. 

2. Even if the federal courts can hear the case, there's no guarantee that the Supreme Court will

Let's assume the federal courts are ready to listen to the merits of the Perry case. The plaintiffs have a right to have the case heard in a District Court, and then a right to appeal that case to the Ninth Circuit. But that's where it stops. At that point the Supreme Court could choose to hear the case or not.

When it comes to federal court cases, the Supreme Court is more likely to take a case if two circuits disagree on the application of constitutional law. So, if the Ninth Circuit (where the Perry case would go - because the Ninth Circuit covers California) ruled one way on the right to gay marriage under the U.S. Constitution and, oh...lets say the Second Circuit (New York State) ruled a different way - like a parent with two squabbling kids, the Supreme Court can step in and settle the dispute.

Without that "split in the circuits" it is less likely that the Supreme Court would take the case. 

If the Supreme Court chooses not to take the case: the Ninth Circuit ruling (last in time, highest court) would be the law in California - for better or worse.

A quick recap: While federal courts would initially have to toss out the case because of the Baker v. Nelson precedent, assuming the Supreme Court reverses itself, the law in California would be decided by the last, highest court to rule on the issue. Which would be the Ninth Circuit if the Supreme Court won't take the case.

3. If the Supreme Court does take the case...

Alright, lets assume that the U.S. Supreme Court reverses the Baker decision and decides to take the case (by the way, the year is like 2014) what would those guys say?

First, remember that this is years away. It is likely that Justice Stevens (he's 89) and Ginsburg (cancer scare) will retire here soon, so the leanings of their replacements would be important.

If the Supreme Court Rules in Favor of Gay Marriage: States would have to change their laws, constitutions and commandments to afford same-sex couples the right to marry. 

If the Supreme Court Rules that Laws Treating Same and Opposite-Sex Couples Differently Are Constitutional: States would not then have to treat gay and straight couples differently.

U.S. Constitutional rights are a floor, not a ceiling, so states are free to afford MORE rights than the U.S. Constitution - just not fewer rights.

HOWEVER because the "rights" section of most state constitutions are lifted from the U.S. Constitution, state courts often look to the Supreme Court's interpretation of those clauses -  the "equal protection" clause, for example - as instructive on state equal protection issues. So, while a negative ruling at the Supreme Court would not mandate discriminatory state laws, with state courts looking to the Supreme Court for advice, it would probably limit the extent to which gay marriage advocates can rely on state courts for protection. 

Plus, states could roll back rights like adoption for gay couples without fear of a serious legal challenge.

Phew!

There you have it. 

A number of things could happen here, but they won't happen soon.

ON A PERSONAL NOTE: When I was little, my parents were engaged in a bitter struggle to get custody of my siblings. (I won't get into the gory details here, but it was pretty bad.) The laws of the states of Georgia and Alabama caused so much confusion in my little brain that I decided I wanted to be a lawyer at the age of 8. (They were the only people who seemed to be able to understand the system.) What I'm trying to say is this: I write so much about this subject because I know how hard it is to feel like a family and have the state say it ain't so. Or that your family is second-class. And I know it's nothing compared with the frustration so many gay couples feel today. I only hope I've done this issue justice for now. 

If you have questions, please feel free to email me.

-Melissa

Mr. and Mr. Smith Go to Washington: Gay Marriage and the U.S. Supreme Court - Part Two

Constant Readers,

Yesterday I wrote about the basics of the recent case to take gay marriage to the United States Supreme Court. Today, I’m attempting to tackle the task of explaining how that Supreme Court case claim would work. Honestly CRs, I’ve agonized over how to present this to you in a way that makes sense while not skipping over the points that are important. I hope I’ve done it justice here, but feel free to let me know.

In the area of Constitutional law Ima talk about today, we’re always looking at a state or federal law that affects the rights of people or a group of people.

Sometimes federal courts look at one of those laws, shrug and say “Meh. No Big Deal.” Sometimes they say, “Waaaaait a minute. You better have a DAMN good reason for passing this law - and if you don’t we’re gonna make it disappear.”   

Which laws get put under the microscope? That's the first question. The second question is what happens once they get there.

A NOTE ON SCRUTINY: When the Court looks a governmental entity as says: "You got some 'splaining to do if you want us to uphold this law" -  it is doing what lawyers call "applying strict scrutiny." There are two reasons why a court will apply strict scrutiny.

(1)    Due Process

The 14th Amendment to the U.S. Constitution says, no "State [shall] deprive any person of life, liberty, or property, without due process of law..."

The above provision has been construed to mean that any law that seriously impinges on people's fundamental rights gets the "strict scrutiny" treatment.

Is marriage a fundamental right? According to the Plaintiffs, it is. In their Complaint, they argue that Prop 8 interferes with the right of homosexuals to enter into the same officially-recognized union with the same dignity and respect as afforded heterosexual couples. (Here's the Complaint again: Download Federal Court Complaint.) In the anti-miscegenation case Loving v. Virginia, the Supreme Court held that, "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival..." So there is some support for the right to marry the person of one's choosing.

On the other hand, Defendants are likely to argue that the fundamental right to marriage does not necessarily include the word "marriage" so long as the right to an equivalent union is present.  Alternatively, they could argue that the fundamental right to marriage has always meant the right to heterosexual marriage - as even in the Loving case, the couple was heterosexual. 

Assuming the court finds that there is a fundamental right to marriage, which includes the word "marriage," the court will cross its arms, give the state the stink-eye and say: "Explain yourself" (this is the strict scrutiny part).

The state will give any number of justifications for why the law exists, but "tradition" will be front and center. Whether that's a good enough reason will be for the Court to decide. According to a 2006 study, only one of every three cases survives strict scrutiny.

A quick sidenote: I get a lot of questions about marriage as a fundamental right and what that will mean to all kinds of relationships. Again: even though marriage is a fundamental right, the state can make arguments for limiting marriage - preventing incest, pedophilia, polygamy, etc. which would presumably be good enough to justify laws against those unions. So, just having a fundamental right does not mean a free-for-all. If there are good grounds for restrictions on that right, they'll be upheld. Okay? Enough with the bestiality hypotheticals. Sheesh.

If the court rules that there is not a fundamental right to marriage, which includes the word "marriage," a good justification for the law won't be necessary. In that case, only a "rational reason" is required.

In a prior Supreme Court decision Lawrence v. Texas the court struck down an anti-sodomy law because the state didn't have a rational reason for the law.  In her concurring opinion, former Justice O'Connor wrote that preserving traditional marriage would be a rational reason for preventing gay marriage.

So, let's hope marriage is a fundamental right so the state will have to present more than just a rational reason for preventing gay marriage.

(2) Equal Protection

"Fundamental rights" aside, any law that singles out a suspect class also gets the strict scrutiny treatment.

NOTE: As an initial matter, the term "suspect class" is clumsy. It sounds like the class itself is "suspect." But that's not true. (At least not legally.) It means that laws singling out that class are suspect.

In order to be part of a suspect class, a group has to meet several criteria:

(1) be a minority or politically insular group, which

(2) has suffered a history of purposeful discrimination,

(3) and are associated with a stigma of inferiority and second class citizenship, and

(4) possess an immutable trait that

(5) bears no relationship to a person’s ability to perform or contribute to society.

There's not really much debate as to whether homosexuals meet all the above criteria - except Number 4. This is a debate I've been having with my BF from college since we met. Luckily, resolving the issue of whether homosexuality is a choice is not completely necessary for the application of this factor. Religions are suspect classes even though a person can convert. So Number 4 is better viewed as "a trait so fundamental to a person's identity that it would be unreasonable to require them to change." Or something like that. 

What does the Supreme Court think of all this?

No idea. The Court has never said homosexuals are or are not a suspect class. They keep squirming out of it.

In the two cases that have come the closest, the Lawrence case and Romer v. Evans (striking down a law that prohibited protection from discrimination against gay people) the court didn't even get into whether gay people are a suspect class, they said: since the states can't even give us a crappy little "rational reason" for these laws, there's no need to ask for really good reasons - which would be required by suspect classes and strict scrutiny discussion.

Assuming the court finds that homosexuals are a suspect class the court will cross its arms, give the state the stink-eye and say: "Explain yourself" (this is the strict scrutiny part).

The state will give any number of justifications for why the law exists, but "tradition" will be front and center. Whether that's a good enough reason will be for the Court to decide. 

If the court rules that homosexuals are not a suspect class, a good justification for the law won't be necessary. In that case, only a "rational reason" is required.

 (c) Summing it up

To prevail, the Plaintiffs have to establish that (a) marriage (including the word "marriage") is a fundamental right, and/or (b) homosexuals are a suspect class. (Failure to establish at least one of these means that the bar is really low and states could easily justify the law.)

If they can establish at least one of those bases for strict scrutiny, then the state will have to prove that limiting marriage to opposite-sex couples is justified by a compelling state reason. Will "tradition" be enough? That's up to the judges.

Part Three will include strategy info about using the federal courts.

--Melissa

Mr. and Mr. Smith Go to Washington: Gay Marriage and the U.S. Supreme Court - Part One

Constant Readers,

I had planned to write about something else today, but I keep getting questions about recent effort to appeal California's prohibition on same-sex marriage to the United States Supreme Court. So, Ima do a three-part series on the Supreme Court stuff this weekend and promise to bring back videos next week.

(Why three parts? Because I want to make sure y'all have a good foundation. My readers are super-smart, and some of you know this stuff, but I want to make sure we're all on the same page before things get complicated.)

Ok?

Stick with me and you'll be a hit at cocktail parties.

Today, I write about two issues: (1) the basics of the case, and (2) how the process of getting to the U.S. Supreme Court works.

Tomorrow: What the Supreme Court has said thus far about gay rights and gay marriage.

Sunday: Why not everyone is on board with this strategy.

1. Basics of the Case

For starters, here's the complaint: Download Federal Court Complaint

Now an important point about what the case IS NOT:

It is NOT an appeal of the Prop 8 case. The federal courts don't give a crap about our revision versus amendment nonsense. The case is NOT arguing that Prop 8 was invalidly added to the state constitution. What they are arguing is that the substance of Prop 8 (the fact that same-sex marriage is unlawful in California) is a violation of the United States Constitution.

And another thing...

The first issue to be litigated is the Plaintiff's request for an injunction. What that means is that Plaintiffs are asking the federal court to STOP enforcement of Prop 8 while the underlying case is litigated. (Injunctions are used in cases of emergency, and are decided relatively quickly compared to the underlying case.) I'd speculate on whether the court will agree to the injunction but my powers of prognostication are not up to snuff recently.

On to the mechanics...

The Plaintiffs are a lesbian couple (Kris Perry and Sandra Stier) and a gay couple (Paul Katami and Jeffry Zarrillo), each of whom was recently denied a marriage license and all of whom live in Berkeley, CA. (Bios here:Download About_the_Plaintiffs.)

The Defendants are the Governor, Jerry Brown and anyone else whose job requires them to enforce Prop 8. Obviously, none of this is personal - each is only being sued in their official capacity.

The Lawyers are David Boies and Theodore Olson were adversaries in the Bush v. Gore case. But the two have decided to team up this time and work together to get gay marriage in front of the U.S. Supreme Court. So eager were they to spearhead this effort that they filed a complaint in federal court last Friday before the Prop 8 ruling even came down. (Bios here: Download Attorney_Bios.)

The Organization sponsoring the lawsuit is the American Foundation for Equal Rights (AFER). This is a brand new organization whose first order of business is helping to bring this case. The Board President of AFER is Chad Griffin who was an Executive Producer of movie "Outrage" and one of Advocate magazine's People of the Year in 2008 in part because he came in at the end of the No on 8 campaign to get Hollywood types to donate big bags o' money.

2. How do you get to the Supreme Court?

On a basic level, the U.S. Court system is divided into two "tracks" - the state track (where you go to argue about state law) and federal track (where you go to argue about federal law). Each track has the same three levels:

a. general court - where anyone can bring a case

b. appeals court - if you lose at general court, you can go here

c. supreme court - justices can pick (and are really snotty about) which cases to hear

For the general and appeals court levels, geography determines precisely which court you're in - these are "districts." On the state level, districts are pretty easy to figure out - most cities have a general court, some lines are drawn in the state for appeals courts and everyone goes to the same state supreme court.

Here are the names for various courts on the federal track:

a. general court - District Court - California has four of these - Northern, Central, Eastern and Southern

b. appeals court - Circuit Court - California is in the Ninth Circuit

c. Supreme Court - um, you know this one.

SOOOOOOO...the case we're talking about was just filed in the District Court for the Northern District of California. (Why the Northern District? Because the Plaintiffs live in Berkeley.)

After the Northern District rules on the case, if Plaintiffs lose, they will appeal the case to the Ninth Circuit. (Note that they can appeal a negative ruling on the request for injunction, too.)

After the Ninth Circuit rules on the case, if Plaintiffs lose, they will appeal the case to the United States Supreme Court.

The U.S. Supreme Court can refuse to hear the case. (We'll get back to this.)

Injunction aside, once we get to the "real" part of the case, how long does all this take?

For-ev-er.

Actually more like 5 years. But we could vote on Prop 8 ballot measures a few times before then.

Okay, you with me, CR's? This is a Long Ass Process.

-Melissa

Five things you should know about the Prop. 8 ruling

Constant Readers,

On Tuesday I was swamped with trying to read the Prop 8 case and talk about it at the same time. Then yesterday I got deathly ill for no damn reason. I'm back today with some observations and have something special planned for tomorrow. For now, here's what ran in today's newspaper:

On Tuesday, the California Supreme Court issued its ruling on whether Proposition 8 — which amended the state constitution to prohibit same-sex marriage — is constitutional.

Here's the ruling: Download Prop 8 Case Ruling

And here’s what you need to know:

1. The ruling basically says that Prop. 8 is not a big deal because, while same-sex couples don’t have the privilege of using the word “marriage” thanks to last years’ ruling in In re Marriage Cases, they still have the constitutional right to “choose one’s life partner and enter with that person into a committed, officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage.” (Apparently the court’s conceit is undiminished by the fact that state law has required as much since 2005. (Cal. Fam. Code sec. 297.5(a).) )

2. The court’s 2008 decision said that marriage is a “fundamental right” to which homosexuals are entitled. In Tuesday’s ruling, the court held that, because (unlike Mississippi) California’s Constitution does not expressly protect fundamental rights from being changed by a ballot initiative, its hands are tied.

3. You can bet #2 will change. In addition to the three ballot initiatives to negate Prop. 8, whose backers are currently gathering signatures, we can also expect to see a ballot measure in 2010 or 2012 that would prevent the initiative process from being used to diminish fundamental rights in any respect.

4. Though each of the state Supreme Court justices was initially appointed by a governor, each must (or have) subsequently run for office. In November 2010, voters will decide whether to re-elect justices Ming Chin and Carlos Moreno and Chief Justice Ronald George to 12-year terms. For those of you keeping score, Moreno was the lone dissent in Tuesday’s ruling.

5. Remember that last year’s In re Marriage Cases decision was based on the equal-protection clause in the state constitution. Ultimately, all U.S. citizens are afforded a layer of equal protection under the U.S. Constitution. Some Berkeley folks recently filed a lawsuit in federal court alleging that California’s present distinction between same-sex and “opposite marriage” violates the equal-protection guaranteed in the U.S. Constitution. These cases usually take years to wind up in the U.S. Supreme Court, which in 1972 refused to become involved in the messy state issue of defining marriage (the case of Baker v. Nelson). Perhaps this time the court will decide to step in and end this debate once and for all.

Now that’s an interesting proposition.

Prop 8 Ruling on Tuesday!

Constant Readers,

Now we've got confirmation - the State Supreme Court will rule on the Prop 8 cases on Tuesday morning. The ruling will be available on the Court's website at 10 a.m..

Here's the Press Release from the Court: Download Prop 8 Ruling Press Release

-Melissa

To My Readers, A Word on the Prop 8 Ruling

Constant Readers,

The decision on Prop 8 will not be coming out today. I'm sure you've heard. I've gotten a number of emails from people who are angry that I repeated a rumor that it was coming out today.

Hey, I wrote it was a rumor from a good source and it was.

New rumor (thanks, Jim!): Mayor Newsom called off the ruling so it wouldn't coincide with White Night vigils. Ballard says it ain't true.

Here's what I know:

The court has until Wednesday, June 3 to issue a ruling.

It usually issues rulings on Monday and Thursday, though rulings scheduled for Monday (Memorial Day) will be distributed Tuesday.

They will give 24 hours notice before the ruling comes down. Notice will be given Friday for a Tuesday ruling.

I'll keep you posted.

-Melissa

Prop 8 Ruling Will Come Out Soon! It's Prediction Time!

Constant Readers,

Oh boy, do I have some gossip for y'all! I heard from a pretty damn good source that a decision on the Prop 8 case will come down this Thursday!

There are only 2 weeks until the June 3 deadline, so a decision will be coming soon even if the scuttlebutt ain't true.

What will happen?

At oral arguments, I'll admit that things were not looking great for proponents of same-sex marriage. Ken Starr did a great job arguing that Prop 8 is legitimate and Jerry Brown sent a buffoon to argue one of the most compelling arguments for shooting down Prop 8.

But while one can never be 100% sure, I believe that Prop 8 will be declared unconstitutional. And it will be along the same voting line as the In Re Marriage Cases (IRMC) decision. [172-page decision here: Download Supreme Court Opinion.]

Here's why...

Remember that California voters passed Prop 22 back in 2000, which added language to the California Family Code declaring that only Opposite Marriage is ok in this state. That language was eliminated from our code by the IRMC decision.

In IRMC, the Court found that there was a conflict between Prop 22 and the equal protection clause of the State Constitution - and the State Constitution always beats a regular ol' law. Prop 8 put the Opposite Marriage language IN the Constitution, and the winner between the internally conflicting provisions is less clear.

Despite this difference, Prop 22 and Prop 8 both require a hard look at the "will of the people" versus the equal protection clause of the State Constitution. That is why the IRMC decision is informative: how the Justices viewed voter intent to pass Prop 22 can shed light on how they'll look at Prop 8.  

A few preliminary issues:

1) Background on the basic legal issues of the Prop 8 case is here and an essay describing the basics of the IRMC decision is here. I'll try not to repeat too much.

2) I won't be addressing retroactivity in this post. I already did a podcast discussing the reasons why same-sex marriages performed last year between June and November are probably safe.

Let's begin.

The California State Supreme Court has 7 Justices (don't call them "Judges"!) so the side that can get 4 votes wins.

Justices Baxter and Chin voted against same-sex marriage in the IRMC case and at oral argument on March 5, 2009 neither seemed interested in changing their minds when it comes to Prop 8.

Note that Chin kept asking about whether we could get rid of the term "marriage" altogether and just declare same and opposite marriages "civil unions." 

Justices Moreno and Werdegar voted in favor of same-sex marriage in the IRMC case and at oral argument, appeared supportive of it again this time.

So, we got 2-2.

As for the other 3...

Justice Corrigan:  Asked a number of insightful questions at oral arguments which led some pundits to believe that she might actually vote to strike down Prop 8. I don't buy that. Check out these quotes from her IRMC decision:

In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages.  But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote.  This court can overrule a vote of the people only if the Constitution compels us to do so.  Here, the Constitution does not. 

The voters who passed Proposition 22 not long ago decided to keep the meaning of marriage as it has always been understood in California.  The majority improperly infringes on the prerogative of the voters by overriding their decision.

If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.

Don't look for her to change her position. She'll likely vote to uphold Prop 8.

Justice Kennard: Was hard on the same-sex marriage proponents. No question. But you can't just rely on that. For example, sometimes judges are tougher on the side they support because they want to make sure their own reasoning is sound.

She repeated a few times that, just because she was in favor of gay marriage in the IRMC decision doesn't mean she'll go for it in the Prop 8 case.

This scared a lot of people. But I went back and listened to the IRMC oral arguments and Kennard corrected a pro-gay-marriage attorney in that case who tried to say he knew how the Justices were going to vote. I think she just has a peeve against people making assumptions about how she'll rule. 

Frankly, I would be very surprised if Kennard rules against gay marriage.

Exhibit A: Remember in 2004, when Mistermayor ordered the County Clerk to marry same-sex couples because he thought the law banning same-sex marriage was unconstitutional? And the State Supreme Court said, "Uh, WE are the deciders of what laws are constitutional. Not you. Those marriages from 2004 are null and void because they were performed before we said same-sex marriage is ok."  That was the Lockyer case. Guess who argued that those marriages from 2004 should be recognized (not nullified)? Justice Kennard. 

Exhibit B: In the IRMC decision, Kennard fully signed on with the majority, but wrote a whole separate decision where she addressed the issue of judicial power and responsibility. Here are some excerpts:

The architects of our federal and state Constitutions understood that widespread and  deeply rooted prejudices may lead majoritarian institutions to deny fundamental freedoms to unpopular minority groups, and that the most effective remedy for this form of oppression is an independent judiciary charged with the solemn responsibility to interpret and enforce the constitutional provisions guaranteeing fundamental freedoms and equal protection.

Whether an unconstitutional denial of a fundamental right has occurred is not a matter to be decided by the executive or legislative branch, or by popular vote, but is instead an issue of constitutional law for resolution by the judicial branch of state government. 

Indeed, this court’s decision in Lockyer made it clear that the courts alone must decide whether excluding individuals from marriage because of sexual orientation can be  reconciled with our state Constitution’s equal protection guarantee. 

Granted (as I wrote above) Prop 8 doesn't present exactly the same issue, but I think Kennard will continue to demonstrate an interest in protecting the fundamental rights of minorities by deciding that Prop 8 is unconstitutional. 

Chief Justice George: Is harder to read than the others. At oral arguments, he started down the road that taking away the word "marriage" was just a small change - and thus an amendment (which is ok) - not a revision (which is not ok). But then Ken Starr got up to argue against gay marriage and basically said: no change to rights is ever a revision. (Only changes to government processes are revisions - things like getting rid of courts or the legislature.)

And George was all: Seriously? A majority of voters can take away any minority's rights and it's always constitutional? 

Yep.

At that point, it looked like George lost faith in Starr's argument.

Remember too, that George wrote (okay, his clerks wrote) the majority opinion in the IRMC decision. Some excerpts on the "majority rule" issue:

Although defendants maintain that this court has an obligation to defer to the statutory definition of marriage contained in section 308.5 because that statute — having been adopted through the initiative process — represents the expression of the “people’s will,” this argument fails to take into account the very basic point that the provisions of the California Constitution itself constitute the ultimate expression of the people’s will, and that the fundamental rights embodied within that Constitution for the protection of all persons represent restraints that the people themselves have imposed upon the statutory enactments that may be adopted either by their elected representatives or by the voters through the initiative process. 

As the United States Supreme Court explained in West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624, 638: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.  One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”  

Given the above, I think he'll vote against Prop 8.

That puts us at 3 in favor of Prop 8 (Baxter, Chin, Corrigan) and 4 against (George, Kennard, Moreno, Werdegar). Same as the IRMC decision.

Admittedly, there is no way to know what will happen in the Court's forthcoming decision.

But there is reason to hope.

--Melissa

America's Heartland Indeed - Iowa's Gay Marriage Ruling

Constant Readers,

I'm sure many of you were surprised to see Iowa's State Supreme Court declare that a state statute excluding gay people from marriage is unconstitutional. You know it's a strange day when Des Moines is looking like a better town for gay people than San Francisco.

Here's the UNANIMOUS decision: Download Iowa gay marriage

According to the decision, Iowa has a history of acting cool: in the very first reported case decided by the state supreme court (in 1839) it "refused to treat a human being as property to enforce a contract for slavery and held our laws must extend equal protection to persons of all races and conditions." State supreme court justices thumbed their nose at segregation and Iowa was the first state to let wimmin be lawyers. Said the decision: "In each of those instances, our state approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the 'absolute equality of all' persons before the law as 'the very foundation principle of our government.'"

The Iowa state motto is "Our liberties we prize and our rights we will maintain."

So the rest of the nation can suck it.

People have already started emailing me with questions, so I'm putting up some info here:

1) Does Iowa recognize domestic partnerships? Aside from marriage, what other options are there for same-sex couples there?

Iowa does not offer civil unions or domestic partnerships. Before this decision, there was really no legal recognition of gay relationships in Iowa. 

2) What was the law at issue in Iowa?

In 1998, the Iowa legislature adopted Iowa Code section 595.2(1): “[o]nly a marriage between a male and a female is valid.” That's what has to be removed now.

3) Was the decision similar to the In re Marriage Cases decision?

Unlike the In re Marriage Cases decision, the Iowa case is unanimous and about seventy pages long. The In re Marriage Cases decision is 120 pages plus 50 pages of concurrence and dissent and stuff.

One reason for this is because the California court went down two roads. Basically the California court said: Hey, State! You better have a damn good reason for prohibiting gay marriage because (1) marriage is a fundamental right, and (2) you are singling out gay people. (Either one would have been enough to demand an explanation.) When the state couldn't produce a good reason, the law was stricken.

In the Iowa case, the judges basically sidestepped the "fundamental right" part and said: Hey, State! You better have a damn good reason for prohibiting gay marriage because you are singling out gay people. When the state couldn't produce a good reason, the law was stricken.

So, kinda similar. 

It may be the case that the California court took the time to explain the "fundamental right" part in anticipation of Prop 8. Being able to say "you're taking away our fundamental right" is more compelling than just arguing about a group that was singled out if you want to stop a change to the state constitution.

4) If you go to Iowa to get married, are you married in California?

No. Because our constitution currently has the Prop 8 language in it: "Only a marriage between a man and a woman is valid or recognized in California." Your marriage would be just fine in Connecticut, Massachusetts and New York, though. 

5) Will we see the equivalent of Prop 8 in Iowa now? 

Probably not. Unlike California, voters can't just gather signatures on a proposed amendment, have the signatures verified and stick it on the ballot. According to Article 10 of the Iowa State Constitution, the only way to amend the constitution is for a majority of each house of the state legislature to endorse it, then have a majority of both houses endorse it again the next year and then have the voters approve it in a statewide ballot.

The Iowa state legislature is currently chock full o' Democrats, so this is all unlikely to happen anytime soon, if ever.

The earliest would be 2011, and the geniuses at fivethirtyeight.com predict that, after 2013, no constitutional ban on gay marriage will pass in Iowa.

6) What happens now?

The decision becomes effective in 21 days unless a petition for rehearing is filed. It probably will be. And it will be denied. (Rehearings are usually reserved for instances where new information comes out.) So, after that fuss, the marriages will commence.

--Melissa