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Marriage Equality: Legal and Electoral Questions Abound

by: Brian Leubitz

Wed Nov 05, 2008 at 13:39:21 PM PST

Yesterday, the Yes on 8 gave their somewhat premature victory speech. While I think the odds are tough for us to come back in the absentees, it doesn't look good. Either way, it is what it us. They have the numbers right now on their side. Say what you will about discrimination being written into our constitution, or the threshhold necessary for said constitutional graffiti, we only have this from a statement from the No on 8 campaign:

Based on turnout estimates reported yesterday, we expect that there are more than 3 million and possibly as many as 4 million absentee and provisional ballots yet to be counted.

Here's hoping for a Dewey defeats Truman moment, but I think they are a bit optimistic about those numbers.  Turnout cratered after the polls closed on the east coast and people started learning about Obama's success. My guess is that turnout will end up around, or slightly below, the 2004 total of 12.6 million. That's substantially less than Field's estimates of 13.6 million, but still much more than the 10.3 million votes currently counted in the presidential election.  So, the fat lady has yet to sing on Prop 8, despite the AP and the Yes campaign.

That being said, the legal response to any prospective Prop 8 victory has already begun. First, there's the issue of retroactivity.  Jerry Brown said over the summer that he thinks it isn't retroactive, and the ACLU is backing that position. We probably won't see a challenge to that until we have some real-life facts to challenge that on. I'm not sure when that will happen, but I can't imagine the right-wing will want to just leave this hanging for too long.

Then there's the bigger question of whether Prop 8 is valid at all.  Back in June/July, ACLU, EQCA, NCLR, etc, filed a lawsuit regarding whether Prop 8 was a revision or an amendment.  There is a big difference there. Revisions can only be accomplished through a constitutional convention and lots of 2/3 votes, while amendments require a bare majority at the polls.  Yeah, it's a big deal.  

Before I go on, I'll say this.  It's at best a 50-50 shot, and that might be generous.  Not that we have a weak case, but what is critical here is that this will take monumental courage from our Supreme Court.  As you probably know, our Court faces election, and a decision in favor of marriage here will open them up to even more electoral challenges. Rose Bird is your big case there. However, the Justices should know that if they follow their convictions, and the case law set down before them, the LGBT community, as well as the greater progressive community, will come out in force in support of these Republican judges. We will give them money, and we will support their reelection to the Court.  Rose Bird was a lesson that we shouldn't forget.

Let's review the law, over the flip...

Brian Leubitz :: Marriage Equality: Legal and Electoral Questions Abound
I'm just going to bring back my analysis from my previous post, with a few edits here and there. But there is a new Petition to the court.

What's the deal with this revision argument?

Alrighty, this really goes to the heart of the matter. So, what is a "revision"? Basically a revision is a change to the "underlying principles" of the Constitution. If the Court determines that the question at issue affects the underlying principles of the California Constitution, the initiative must go through a different process. A revision requires a 2/3 vote of both houses of the Legislature or the convening of a Constitutional Convention (a process that I won't go into here). The revision then must be ratified by the people. Obviously this initiative hasn't gone through either process.

But what is an "underlying principle", you ask? Well, good freaking question! There have been only a few cases which have actually dealt with this.  A few months back Killer of Sacred Cows wrote a recommended diary at dKos and crossposted here about an article by Kevin Norte (and a follow-up), a research attorney in the LA Superior Court.

In other breaking news, there is no such thing as a free lunch. This will be a tough case for Chief Justice George and the California Supreme Court.  While he did give a hint in the questioning all the way back in March, it's not clear by any stretch that there are 4 votes for this, either before or after the election.

The EQCA brief cite several cases where amendments have been tossed. The most notable amongst the amendments that were tossed was at issue in Raven v Deukmijian (52 Cal 3d 336). In that case, Stephen Bomse (the same attorney at Heller Ehrman that field the case on behalf of the voters and orgs in the marriage case) argued that a proposed initiative that would have limited California criminal rights to the extent of the US Constitution.  The CA Sup Ct ruled that such an amendment would so change the structure of the California system of government as to amount to a revision of the Constitution.

The Court stated a rather nebulous standard in Raven:

As explained in Amador, and confirmed in Brosnahan, our revision/amendment analysis has a dual aspect, requiring us to examine both the quantitative and qualitative effects of the measure on our constitutional scheme. Substantial changes in either respect could amount to a revision. Before examining the applicable authorities in greater depth, we first set forth the nature of petitioners' revision challenge.

So, the Court goes through a two-pronged analysis when dealing with revisions. Quantitative goes to scope of changes in the Constitution, quite literally. That looks to the actual number of additions, deletions, and amendments to the California Constitution (Raven , III, B, 2).  As to the qualitative aspect, the Court states that "even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision."

Clearly, the marriage issue is looking towards qualitative aspects. And again, Raven is the case to look at:

Even under respondent Attorney General's "limited" construction of new article I, section 24, fundamental constitutional rights are implicated, including the rights to due process of law, equal protection of the law, assistance of counsel, and avoidance of cruel and unusual punishment. As to these rights, as well as the other important rights listed in new section 24, California courts in criminal cases would no longer have authority to interpret the state Constitution in a manner more protective of defendants' rights than extended by the federal Constitution, as construed by the United States Supreme Court.

This is where the case is headed, where the controversy lies. The EQCA attorneys argue that marriage is now a fundamental right. It is implicated under equal protection of the law, as orientation is now a suspect class under In re Marriage Cases.  From the brief:

Equal protection is not merely a discrete constitutional guarantee; it is a trascendent principle that is deeply woven into the fabric of our entire Constitution. (Brief at 17)

There is a substantive argument to be made here. But, there is no case law on the definition of fundamental rights.  This would be the Court going out on a limb and expanding the scope of the revision doctrine.  Now, this is the same court that decided In re Marriage Cases, so it's not entirely unthinkable.  

But, as the writ points out, the Courts were specifically formed to protect the rights of minorities.  This is the very definition of a majority trampling on the fundamental rights of a minority.

And the court, in In Re Marriage Cases defined the right to marry as exactly that: fundamental.

we conclude that ... the differential treatment at issue 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. In Re Marriage Cases at 10

And the word fundamental is spread liberally throughout In Re Marriage Cases.  But, like I said, this isn't a question of law, the precedent is there. This is merely a question of courage. Does our justice system allow for the curtailing of fundamental rights by a bare majority? It certainly wasn't designed to do so...but the jury is still out.

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Oregon (0.00 / 0)

You can count on the fact that Exhibit A to the Yes on 8's opposition to the Petition is going to be a case from the Supreme Court in Oregon.  

Six months ago, the Oregon Supreme Court decided a case involving an almost identical constitutional amendment.  Measure 36 provided that:

It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.  

Those opposed to Measure 8 filed a lawsuit and argued that Measure 36 was a "revision" rather than an "amendment."  Oregon's constitution, like our own, prohibits constitutional revisions by the initiative process.  The Oregon Supreme Court, relying heavily on California law, upheld Measure 36, finding that it was an "amendment" and not a "revision."  Since the Oregon Supreme Court already muddled through this thorny argument, the California Supreme Court shouldn't worry their pretty little minds.  Instead, the should just sign on to the Oregon opinion.

Pretty neat argument, eh?

Well, only until you scratch the surface.

First and most obviously, the California Supreme Court does not look to the Oregon Supreme Court for guidance on how to interpret our constitution.  While this opinion is a point of reference, don't count on our Justices being persuaded by their counterparts from the north.  The California Supreme Court has a long history of being trailblazers and bucking trends.

Second, and more importantly, the Oregon law does not recognize the right to marry the person of one's choice to be a fundamental constitutional right.  Because our state unquestionably recognizes this right, it is not surprising that our Court will reach a different result than the Oregon court. 

I agree with Brian that this issue is one of courage.  If the Supreme Court does what is right, we will see them strike down Prop 8 as being an unconstitutional revision that seeks to take away a fundamental right.

The early polls (0.00 / 0)
That I saw all consistently showed "already voted" voters to prefer Yes by several percentage points. I think absentee ballots will, if they have any effect at all, hurt us.

The important thing now is the courts.

Ya, here are the exit poll #s (0.00 / 0)

They don't look like these ballots are going to swing our way.

I think?

[ Parent ]
This campaign seems to be over :(. (0.00 / 0)
I'd like to be surprised in terms of the outstanding ballots, but the numbers would just have to be pretty impressive.  I'm not seeing it.

I guess my first thought is that I don't like the potential for success in the legal arguments.  I think it's good to make them, but I think the defect is probably not the proposition but the Constitution itself; the California Constitution itself does not provide an adequate restriction on rampant propositions, but that's a problem you resolve through amending said Constitution.

Anyhow, back to Raven.  Is the California Supreme Court really going to go there?  The US Supreme Court hasn't exactly laid that groundwork yet, applying a rational basis and saying that GLBT folks don't qualify for any kind of special scrutiny (not even the "rationality review on steroids" that disability gets), and the Massachusetts SJC refused to address the question by saying that banning equal marriage flunked even the "normal" level of scrutiny, rationality review, thus not requiring the SJC to address the scrutiny question - to my knowledge, the SJC still steadfastly refuses to define a level of scrutiny.

Is the California Supreme Court really going to invent a heightened level of scrutiny, apply it to sexual orientation, and then say that because discrimination on the basis of sexual orientation is now subject to this new heightened level of scrutiny, the Proposition is invalid?  Because that's how I read what they would have to do.  That is an enormous foundation.

From what I've read of this post (I haven't read the case), the law in question in Raven looks like a systemic assault on the entire criminal law structure in California and would have indeterminable effects on an indeterminable number of sections of the California Constitution and California laws.  That's huge.  It's unfortunately easy to distinguish Raven, if I read all this correctly.

I mean, I'd love to see them go there, but legally, it's asking them not just to leap a puddle but to leap a pit full of hot coals and alligators.

I don't see a heightened level of scrutiny required (0.00 / 0)
I really don't see where you are getting that the court has to "invent" a new level of scrutiny. You said yourself that even Massachusetts didn't even get to define what level of scrutiny it had to follow, because banning equal marriage flunks the lowest level of scrutiny imaginable. I think the level of scrutiny for a "suspect class" is the appropriate one here.

I think what you are confused about is the reference of the US Constitution and federal law in the Raven case, which was merely used in that decision as a point of comparison -- basically the amendment at issue in Raven would have required California courts to apply federal law standards to state law cases, which would substantially eliminate fundamental rights of defendants previously afforded under the California constitution. The applicability of federal law is not the issue in this case. What is at issue is the changing of fundamental rights guaranteed in he California constitution. In the In re Marriage Cases case, the court appeared to state that marriage equality is a fundamental right. Therefore, Prop 8 would be considered a removal of a fundamental right, which could conceivably be only struck down by a constitutional convention.

I think the argument is strong, but like the diarist said, what it comes down to is whether these justices feel that such a decision would cost them their jobs.

[ Parent ]
Any thoughts on Romer v. Evans? (0.00 / 0)
Which is an interesting case because as I understand it, the reasoning there stemmed from the US Supremes' 1967 decision overturning Prop 14, which did to the civil rights movement in CA what Prop 8 has done to the marriage equality movement.

You can check out any time you like but you can never leave

Good question (0.00 / 0)

But for many reasons, the sage legal strategists who have taken us this far (and for whom I have tremendous respect) have concluded that it is best to focus on California state law rather than US Constitutional law. I think most have concluded that the presently-constituted Supreme Court would not be friendly to a 14th Amendment argument and that by making a federal argument, we risk an appeal to the USSC.  If the California Supreme Court decides the issue solely on state law, there is no avenue for the Yes on 8 people to appeal to Scalia & Co.

That being said, I agree with you that Romer could serve as a strong precedent to find that Pop 8 violates the 14th Amendment. For example, Justice Kennedy wrote in the majority opinion that:

A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. "The guaranty of 'equal protection of the laws is a pledge of the protection of equal laws'". 

Romer left open the question of whether gay and lesbian people are a "suspect class," and thus would be entitled to strict scrutiny review.  Instead, the Court found that Colorado's Amendment 2 did not satisfy even the most liberal "rational basis" review because Colorado could not show any legitimate rationale for the discriminatory law. 

If we needed to make a 14th Amendment argument, we could fight the battle on two fronts.  First, we could argue that gay and lesbian people are a suspect class entitled to strict scrutiny review.  Prop 8 could not survive this review.  Alternatively, we could argue that even if gay and lesbian people were not a "suspect class," Prop 8 fails because there is no legitimate, non-discriminatory basis for the law.  This would, of course, bring in all the idiotic arguments about how denying marriage to gays promotes "family values" and strengthens society.

Even though the USSC has been Bush-whacked, we still have a majority from Romer (Stevens, Kennedy, Souter, Ginsburg, and Breyer). We can presume that we lost O'Connor's vote to Alito, but we still end up with a 5-4 majority.

I have tremendous faith in the legal eagles who are running the show on our side.  Since they have concluded that the federal argument is not our best argument, I trust them.  But if the state law argument fails, I believe we have at least a good argument to challenge this at the federal level.

[ Parent ]
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