Source: Contra Costa Times, Los Angeles Times, Stanford News Service, Dorf on Law, Slate
The long-running and complex battle for marriage equality in California has twice been fought at the ballot box where voters have twice rejected the notion that gay and lesbian couples should be able to marry in civil ceremonies.
The latest voter smack-down of marriage equality came Tuesday when 52.5 percent of California's voters favored Proposition 8, an amendment to the constitution that aims to restrict civil marriages to man/woman couples.
But the ink on ballots had barely dried last Wednesday before advocates for marriage equality had filed legal challenges to halt the ban on same-sex marriages, bringing the issue back to the courts where it's been debated for much of the last decade.
In an interview that CNN aired yesterday on Late Edition, Gov. Arnold Schwarzenegger expressed confidence that the California Supreme Court might overturn the ban. "The Supreme Court very clearly in California has declared this unconstitutional," he told CNN's John King.
Meanwhile, Attorney General Jerry Brown slid himself into a narrow spot -- pledging to defend both the will of voters and the validity of 18,000 state-blessed marriages over the past 16 weeks, Contra Costa Times reports.
'Revision', 'amendment', 'strict scrutiny' among issues to be argued in attempt to overturn Prop. 8 [contd.]
The claims filed by advocates for marriage equality names state officials, including Brown, and seeks an immediate stay to prevent enforcement of the ban.
Lawyers for a group of gay couples argued in legal papers that Prop. 8 is invalid because it something called a "revision" to the constitution rather than an "amendment". The argue that Prop. 8 eliminates a fundamental right for gay and lesbian couples and prevents state courts from exercising their role to protect the rights of minority groups.
Whether Prop. 8 is properly an "amendment" or something more fundamental -- a "revision" -- is an important question that has brought the cultural war over marriage equality back to the courts.
Advocates tried the same argument with the state Supreme Court in June to keep Prop. 8 off the ballot. The court dismissed that claim without comment, probably choosing to wait until after Tuesday's vote, legal scholars said, according to Contra Costa Times.
But now that the measure has passed, the court is expected to give the argument serious consideration.
In an Los Angeles Times op-ed column, Goodwin Liu, associate dean and professor of law at UC Berkeley, explains the underlying distinction between the legal terms "amendment" and "revision":
An amendment may be enacted by initiative with a majority vote, whereas a revision must first be passed by two-thirds of the Legislature before being submitted to the voters. ...
Does Proposition 8 qualify as a revision? Under the case law, it's a revision only if it "substantially alters the basic governmental framework set forth in our Constitution." Proposition 8 does exactly that, its opponents say, by eliminating a fundamental right for a specific group, and by limiting the judiciary's constitutional role in enforcing equal protection and privacy guarantees.
"The rule of thumb is to think of an amendment as something that's adding on to the constitution, but not altering the core principals of the constitution," said Elizabeth Gill, an attorney with the American Civil Liberties Union, one of the groups that filed the challenge to Prop. 8. "What we have here is an amendment that attempts to undo the constitution's guarantee of equal protection."
Berkeley's Liu puts it this way:
Changing the Constitution -- the state's paramount law -- in such a momentous way arguably calls for deliberative rather than direct democracy. Indeed, as early as the nation's founding, our constitutional tradition has favored representative democracy over simple majority rule when it comes to deciding minority rights.
The fight for full marriage equality has been waged not just at the ballot box, but also in the legislature and in the courts.
Starting in the 1990's, the legislature granted gay/lesbian couples access to a specialized form of civil unions called domestic partnerships that were distinct from, but eventually became substantially identical to civil marriages. The legislature also twice passed laws that would have given gay and lesbian full equality under the state's marriage laws. Both of those laws were vetoed by Gov. Arnold Schwazenegger, who argued that the legislature should wait until the state's courts had decided on then-pending challenges to the first of the state's first marriage-discrimination ballot measure.
After a series of contradictory lower-court rulings, those challenges were finally decided in May by the state Supreme Court which determined in a 4-3 decision that the equal rights provisions of the state constitution and case law in California required the state to treat gay and lesbian couples the same way it treats man/woman couples. The court struck down a previous law adopted by initiative that banned on same-sex marriage, spurring the Prop. 8 campaign.
The majority opinion stated, "In view of the substance and significance of the fundamental right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right."
Chief Justice Ron George, writing for the majority, concluded, "In contrast to earlier times, our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation, and, more generally, that an individual's sexual orientation — like a person's race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights."
Led by right-wing evangelical preachers, anti-gay activists had started a signature-gathering campaign for a constitutional amendment even before the Supreme Court issued its decision in May.
But the decision issued by the court was more comprehensive than many legal analysts had expected. Lambda Legal, which participated in arguments before the court, explained after the decision was issued that California's court was became the first state court to determine that the right to marry is a fundamental right.
A fundamental right is one that cannot be taken away unjustifiably from anyone, whether or not there is any unequal treatment. This is the first time a state's highest court has recognized same-sex couples’ fundamental right to marry.
Unlike prior cases in both Massachusetts and New Jersey, where courts had also recognized a right for gay/lesbian couples to civil marriages (or something substantially similar), the California court decided to apply a legal principle called "strict scrutiny" in the case.
In a May analysis of the California decision, Slate's Kenji Yoshino explained why the California court's ruling was broader than the similar decision that led the way toward marriage equality in Massachusetts:
The legal difference between the two opinions lies in the so-called "rational basis" review used by the Massachusetts court and the "strict scrutiny" deployed by the California Court. In constitutional parlance, these terms describe how closely a court will examine state legislation: will it give the legislature the benefit of the doubt, or not? Rational basis review is so lenient that it almost always results in the validation of state policies (in this sense, the 2003 Massachusetts ruling was an aberration), while strict scrutiny is so stringent that it almost always results in the invalidation of such policies.
Yoshino explained that Chief Justice Ronald M. George went even farther in the decision that he authored:
He explicitly found that discrimination against gays, on the basis of their sexual orientation, was equivalent under the California state constitution to discrimination against racial minorities. To my knowledge, California's is the only state high court to have come to this conclusion (the federal Supreme Court has not weighed in). For gays, this pronouncement is critical because it is portable -- that is, gays can now challenge any California state policy that discriminates on the basis of sexual orientation.
Because signature gathering for the proposed amendment that became Prop. 8 was started before the decision was issued, it did not attempt to deal with the broad outlines sketched by George and his fellow justices in their decision. Most legal scholars say that this broad prohibition on anti-gay discrimination is not invalidated by the simple wording of Prop. 8.
As Contra Costa Times noted in an editorial that guesses the high court will strike down Prop 8., the key question now is whether the ballot measure can prevail in the face of the court's ruling that says that same-sex marriage is a fundamental right guaranteed by one of the core provisions of the California Constitution.
In a recent analysis of the arguments against Prop. 8, Stanford Law School's Jane Schacter explains that the strict-scrutiny basis used by the court in its decision could make the challenge to the the ballot measure more compelling to the justices:
The argument about Proposition 8 will be that the state Supreme Court -- one of the organs of government -- found in May that same sex couples have a fundamental right to marry, and that denying this right to marry should be subjected to what's called strict scrutiny. Strict scrutiny means that the court will conduct a very close review of anything that treats a traditionally disadvantaged group of citizens differently, and will require extraordinary justification to support doing so. And the court only mandates strict scrutiny where it finds that a traditionally disadvantaged group cannot get a fair shake in the political process.
The claim here is that Proposition 8 prevents the court from reviewing a claim by same-sex couples that they're being denied their fundamental constitutional rights in the way that the court has said that claim should be reviewed. Proposition 8 did not address or eliminate strict scrutiny, yet its effect is to prevent the court from applying the state constitution as it believes it must be applied. The argument is that by thus handcuffing the court on a matter of constitutional interpretation of fundamental rights, Proposition 8 changes the function of an important governmental institution and constitutes a "revision."
Michael Dorf of Cornell Law School admits that the arguments for overturning Prop. 8 could, indeed, be compelling to the court, but concludes:
My gut (which, per Stephen Colbert, I always consult) tells me the petition will fail. Partly this is a matter of realpolitick: the Justices could lose their jobs over this sort of thing. Partly this is a matter of doctrine. One might more readily characterize Prop 8 as standing for the view that the prohibition on gay marriage does not discriminate on the basis of sexual orientation, or that sexual orientation isn't a suspect classification, or that straight-marriage-only laws satisfy strict scrutiny. Or the Court might think that carving out an exception to strict scrutiny in one area isn't a fundamental change.
Supreme Court Justices in California must stand for election and are also subject to California's relatively easy recall rules. Dorf argues that the justices might consider their political futures along with legal precedents before deciding to overturn a second popular vote against equality for gay and lesbian couples.
But Dorf also admits that the reasoning of the court's May decision might necessarily propel the justices toward a decision on these challenges that ignores the realpolitic of the matter.
In its May decision which overturned a ballot initiative that had passed with a larger majority than that which approved Prop. 8 on Tuesday, the high court argued that fundamental rights of a minority must sometimes be protected from simple majority rule.
Associate Justices Joyce L. Kennard emphasized in her concurring opinion that equal rights is something that must often be enforced by courts even when the issue is unpopular:
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.
The justices are now face the task of deciding if the rights they recognized in May really are as fundamental as they said they were back then.
Source: Same-sex marriage back in court | Contra Costa Times
The law and Prop. 8 | Los Angeles Times
Q&A: Law School's Jane Schacter discusses California's gay marriage ban | Stanford News Service
Revision or Amendment? | Dorf on Law
Magisterial Conviction | Slate
Proposition 8 passage does not end controversy over gay marriage | Contra Costa Times