Home > Federal Prop 8 Trial > Distinguishing cases

Distinguishing cases

December 6th, 2010

from Dr. Morse

Cooper is trying to distinguish Prop 8 from the Romer case, which struck down a CO initiative.  IMHO, he is giving away too much in agreeing with Romer.  But I guess he doesn’t need to fight that fight here.

Cooper is now referring to the 8 appellate state and federal courts that have addressed these cases, which have upheld the traditional marriage, and rejected the 14th amendment arguments.  He is specifically mentioning Baker v Nelson.

These guys are making a big deal out of the fact that Prop 8 took away the right to marry, as the CA Supreme Court had enacted same sex marriage.  Therefore, I guess, we are supposed to believe that the people have no power to amend the state Constitution.  Chuck is making exactly the right point.  Prop 8 is a Constitutional amendment, which the people still have the right to make.

Reinhardt is making the point that the right to amend the Constitution is limited. He/they keep bringing up the example of “could the people vote to have segregated schools?”   Cooper responds by saying that the federal constitution prohibits that policy.  Therefore, the fact that the CA Supreme Court enacted ssm prior to Prop 8, is not relevant.  The people of CA have the right to amend their Constitution.

Reinhardt isn’t buying it. Surprise.

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  1. Sean
    December 6th, 2010 at 12:52 | #1

    “Therefore, I guess, we are supposed to believe that the people have no power to amend the state Constitution.”

    That’s not in question, it’s as Judge Hawkins said: you can’t amend the constitution and violate other constitutional protections, such as equal protection. The right of Californians to alter there constitution is not in question. They just can’t alter it and violate the US Constitution, which is supreme.

  2. Sean
    December 6th, 2010 at 12:55 | #2

    “Therefore, the fact that the CA Supreme Court enacted ssm prior to Prop 8, is not relevant.”

    It is relevant, because Californians had a right to do something that the US Supreme Court said was fundamental: the right to marry. And the California Supreme Court didn’t dissolve the marriages of 18,000 couples, because they had engaged in something that was deemed a fundamental right by the US Supreme Court.

  3. Leo
    December 6th, 2010 at 13:15 | #3

    Of course, that is the issue at hand. Does Prop 8 violate the U.S. constitution, especially in the light of Baker v. Nelson, which would seem to have settled that question and answered it in the negative.

  4. Sean
    December 6th, 2010 at 14:49 | #4

    As Ted Olson explained, doctrinal changes have rendered Baker of questionable importance: Californians did have the right to marry, and other Romer and Lawrence decisions create conflicting doctrine.

  5. Marty
    December 6th, 2010 at 14:57 | #5

    Yep. Why SCOTUS doesn’t fasttrack this, I cannot say. It won’t be settled until they take up the issue, and perhaps not even afterwards (as if Roe v Wade could be considered “settled”)

  6. Leo
    December 6th, 2010 at 15:22 | #6

    Marty. You are quite right, but the case is moving at an historically rapid pace. If the Romer and Baker decisions are in conflict, then the Supreme Court has to sort it out sooner or later. You are right to mention Roe. If Baker is overturned, the cultural war will be even greater and could easily lead to a federal DOMA amendment. There are enough states with DOMA laws to pass this by constitutional convention. The voters in November were in a sufficiently unhappy mood that if I were a Democratic strategist, this would be my nightmare for 2012.

  7. Mark
    December 6th, 2010 at 15:29 | #7

    Marty: “Why SCOTUS doesn’t fasttrack this, I cannot say”

    Because in law, as in most things, there is a right and a wrong way to do things. Also an order in which to do them. Currently, it is not, in essence, a Federal Issue.

    “It won’t be settled until they take up the issue, and perhaps not even afterwards ”

    You are right, Marty. For those people who hate gays and want them treated as second class citizens, this will never be settled because, eventually, like the rest of the civilized world, same sex marriage will be allowed in the US.

  8. Leo
    December 6th, 2010 at 16:14 | #8

    If it is not a “Federal Issue,” why is it in federal court? At the state level, the Supreme Court of California decided to uphold Prop 8.

    Same sex marriage is allowed in the U.S. in several states in fact, albeit in a decided minority of states. I don’t believe the federal government should deny the right of Massachusetts, for example, to define marriage in Massachusetts. That is up to the state of Massachusetts, of which I am not currently a resident.

  9. December 6th, 2010 at 16:22 | #9

    Ted Olson fails to mention that overruling Supreme Court precedent is the prerogative of the Supreme Court, as stated in De Quijas v. Shearson and State Oil Co. v. Khan.

    This is why Chuck Cooper did not decide to challenge Romer.

  10. Marty
    December 6th, 2010 at 16:43 | #10

    Mark: Because in law, as in most things, there is a right and a wrong way to do things.

    LOL! Aren’t you one who thinks that it’s “the right way” for judges to invent constitutional rights out of thin air (or perhaps more ridiculously, think SSM was ratified back in 1868 with the 14th Amendment)?

  11. December 6th, 2010 at 17:02 | #11

    Even if this case gets to scotus, they won’t really be resolving the issue unless someone puts the issue of same-sex procreation before them. They might introduce the issue on their own impetus, finding in their own precedents that marriage is about the right to procreate offspring, and note that since same-sex couples are not prohibited from making offspring in any state (except perhaps Missouri, where implantation of an embryo that is not from a man and woman is prohibited), then they should have the right to marry.

  12. Sean
    December 6th, 2010 at 17:05 | #12

    Equal Protection wasn’t invented out of thin air!

    Prop 8 intervenors crashed and burned today. Yikes.

  13. Mark
    December 6th, 2010 at 17:26 | #13

    Marty: “LOL! Aren’t you one who thinks that it’s “the right way” for judges to invent constitutional rights out of thin air ”

    No, just protect the ones that are there already.

    “(or perhaps more ridiculously, think SSM was ratified back in 1868 with the 14th Amendment)?”

    No, Marty, it wasn’t. However, one of the brilliance of our Constitution is how it is written – not to lay out one by one each specific individual right but to give a representation of the ideals of this country. The 14th Amendment is a great example.

    Now, if you feel it’s OK to deny fellow citizens their rights (as you propose), then I guess you miss the important aspect of our Constitution and the ideals of this country.

  14. December 6th, 2010 at 17:38 | #14

    That’s not in question, it’s as Judge Hawkins said: you can’t amend the constitution and violate other constitutional protections, such as equal protection. The right of Californians to alter there constitution is not in question. They just can’t alter it and violate the US Constitution, which is supreme.

    But the judges seem to be predicating it on the fact that the state constitution once protected a right to marry someone of the same sex.

    If the U.S. Constitution protects what the plaintiff-appellees claim it protects, then it is beside the point whether or not a state’s constitution protected such a right before or never did.

  15. December 6th, 2010 at 18:30 | #15

    A great comment on the Loving analogy.

    The SET of people a black man could legally marry, pre-Loving, was different than the SET of people a white man could marry. The law was specifically racial and thus violated the 14th amendment. Without gay marriage, what is the set of people a gay man can marry versus the set of people a straight man can marry? They are exactly the same: the set of sufficiently non-related women above a certain age. No where is sexual preference in the definition of the set.

    What IS in the definition of the set is sex. The set of people a man can marry is different than the set of people a woman can marry. THAT corresponds to the analogy with Loving that banning interracial marriages is ok because blacks can still marry other blacks. But do gay marriage activists really want to seriously argue that banning two women from marrying each other is a violation of their rights
    as women as opposed to violating their rights as lesbians? All the arguments seem to me to be centered on how bans on gay marriage violate their rights as lesbians, not as women per se.

  16. Sean
    December 6th, 2010 at 19:50 | #16

    I disagree, Michael. As Judge Reinhardt pointed out, same-sex couples once had the legal right to marry in California. Once that happened, they became subject to the Supreme Court’s proclamation that marriage is a fundamental right. That’s why the distinction between a state like California, where a right was conferred, and other states that have never conferred equal marriage rights, makes a difference.

    I think it’s another reason why Straight Supremacists were so quick to get marriage amendments on the books: it’s one thing if the cat is in the bag, but once it’s out of the bag, it’s a big problem to get it back in.

  17. Leo
    December 6th, 2010 at 20:56 | #17

    It is not that a right was conferred or invented, it was that a definition was changed, a definition that had been previously codified in state law enacted through a referendum. Same sex couples who married in California when that was included in the new definition of marriage are still married according to the California Supreme Court. Their marriages are not being challenged in this case. Those who did not take advantage of the new definition are still not married. Nothing was taken away from those who married during the period when the definition was changed.

    Is Sean now arguing that there is no basic right to SSM in states that never authorized it?

  18. Sean
    December 7th, 2010 at 04:35 | #18

    Leo, that isn’t the issue that Reinhardt framed. He and Smith inquired about whether it makes a difference if the state wants to issue marriage licenses equally to all citizens, and actually started doing so.

    Sean argues that all citizens have equal protection of the law, and equal access to marriage licenses, under the US Constitution’s Equal Protection guarantee. But the Straight Supremacists defending Prop 8 in California have a particularly tough time violating gay citizens’ rights because in California:

    1. The state wants to issue same-sex marriage licenses,
    2. It did so for a time, and,
    3. It grants domestic partnerships, with the exact same state rights as marriage,
    4. There are 18,000 same-sex married couples in California: why are some same-sex couples allowed to be married, while others aren’t? Another big Equal Protection problem. There’s no rational purpose in allowing some, but not other, same-sex couples to be married. Either dissolve those marriages, convert them to domestic partnerships, or let all same-sex couples who wish to, marry. This is yet another lawsuit in the making, depending on the outcome of this case.

    All thanks to the Straight Supremacists/homophobes/religionists. All this money spent on initiatives, lawsuits and six-figure incomes for Maggie Gallagher and Brian Brown. No matter who gets hurt. Disgusting.

  19. December 7th, 2010 at 08:26 | #19

    Michael. As Judge Reinhardt pointed out, same-sex couples once had the legal right to marry in California. Once that happened, they became subject to the Supreme Court’s proclamation that marriage is a fundamental right. That’s why the distinction between a state like California, where a right was conferred, and other states that have never conferred equal marriage rights, makes a difference.

    Which would, in effect, mean that the United States Constitution would have greater protections for people in some states than people in other states.

    In any event, the California Supreme Court’s interpretation of state law has no bearing on federal courts’ interpretation of federal law, even if the laws are identically worded.

    Is Sean now arguing that there is no basic right to SSM in states that never authorized it?

    Yes, he is in fact writing that.

    Of course, it contradicts the Supreme Court holding in Crawford v. Los Angeles Board of Education . In Crawford the Court rejected “the contention that, once a State chooses to do “more” than the Fourteenth Amendment requires, it may never recede. We reject an interpretation of the Fourteenth Amendment so destructive of a State’s democratic processes and of its ability to experiment. This interpretation has no support in the decisions of this Court.”

    There is a good reason for that. As a commenter on another blog pointed out

    Given that the extension of rights happened while the initiative vote was pending, the precedent would give state courts the power to short-circuit initiatives (or even legislative actions) by creating a legal ratchet.

    Furthermore, such a ruling would invalidate state constitutional amendments banning same-sex marriage in states where no court of last resort had ever ruled that such a right did not exist. After all, there could be an unrecognized right to same-sex marriage in the pre-amended state constitutions.

  20. Marty
    December 7th, 2010 at 08:32 | #20

    No Mark/Sean. The right of “equal protection” was not ratified to include a right to SSM, and it never could have been. Such a “right” only exists in the imagination of a few powerful people intent on forcing their morality down the throats of their neighbors.

  21. December 7th, 2010 at 12:07 | #21

    There is more on the possible alternate holdings the Court is considering (invalidating Proposition 8 because it withdrew rights, or because of California’s domestic partnership law)

    A ruling that Proposition 8 is unconstitutional because of California’s domestic partnership law would, in effect, create a perverse deterrent against other states offering legal protections and privileges to same-sex couples, and even create a perverse incentive in withdrawing some or all legal protections and privileges from same-sex couples.

    If Proposition 8 was invalidated because it withdrew a privilege from a minority, I fail to see how this is limited to California. The 14th Amendment’s equal protection clause limits withdrawing legal privileges from subsets of the general population, just as it limits extending legal privileges to subsets of the general population. For example, a firearms privilege (not already guaranteed by the Second Amendment) can not be offered exclusively to heterosexuals unless such an exclusion can be justified under the appropriate level of scrutiny. And the specific privileges that were actually withdrawn by Proposition 8 were the privilege to marry women, and the privilege to marry men, and they were withdrawn from women and men, respectively. There is no way to distinguish, for the purpose of equal protection analysis, the exclusive withdrawal of privileges from a subset and the exclusive extension of privileges to a subset.Thus, a ruling on this basis will affect marriage laws in all states.

  22. Mark
    December 7th, 2010 at 12:52 | #22

    Marty: “Such a “right” only exists in the imagination of a few powerful people intent on forcing their morality down the throats of their neighbors.”

    And those people would be the ones AGAINST same-sex marriage. There is no legal, rational nor moral reason to deny gays and lesbians the right to marry other than a incorrectly held religious bias.

  23. Sean
    December 7th, 2010 at 12:53 | #23

    “Which would, in effect, mean that the United States Constitution would have greater protections for people in some states than people in other states.”

    How so? Marriage is a right given by states, not the federal government. No one has a right to marriage but if a state is handing out marriage licenses, with tangible benefits, it has to hand them out on an equal basis to all citizens, lacking a rational public purpose to do otherwise.

    If a state doesn’t offer marriage rights to its citizens, the US Constitution can’t help them get those rights. Some states can offer marriage, and others might not. The citizens of states which do offer marriage are in no way afforded greater constitutional rights than those in states with no marriage rights.

    The US Supreme Court has ruled marriage a fundamental right, in the context of the state offering it, and permits few limits on making it available to all citizens. Choice of partner is limited, but only narrowly. If a state chooses NOT to offer marriage rights (and I’m sure there are Straight Supremacists and homophobes who would rather deny EVERYBODY the right to marry, rather than let same-sex couples marry!), I doubt the US Supreme Court would make them offer those rights.

    It would not surprise me in the least if a state like Alabama or Arkansas, once commanded by SCOTUS to grant marriage licenses on an equal basis, eliminated marriage completely, rather than let “the gays” get married.

    “Yes, he is in fact writing that.”

    That’s correct. There is no right to SSM. Nor to OSM. But if a state is handing out marriage licenses, with tangible benefits, it has to hand them out on an equal basis to all citizens, lacking a rational public purpose to do otherwise.

    “In Crawford the Court rejected “the contention that, once a State chooses to do “more” than the Fourteenth Amendment requires, it may never recede.”

    California wasn’t doing more than the 14th Amendment requires when it legalized same-sex marriage, it was doing exactly what the 14th Amendment requires: treating citizens equally, lacking a rational reason to do otherwise.

    “the precedent would give state courts the power to short-circuit initiatives (or even legislative actions) by creating a legal ratchet.”

    Not at all: if the citizens can claim harm from the legislative action, they have standing to sue. And they can vote out governors, attorneys general and legislators, and find those more amenable to their position. Iowa is going through this right now: they’re firing competent judges, voting out incumbents, etc., shopping for judges and legislators favorable to marriage discrimination, and adopting a constitutional amendment integrating discrimination into Iowa’s constitution.

    In a representative government, the will of the people isn’t as powerful as some might think, especially in the short-term. A substantial majority of citizens can persuade a substantial majority of legislators to pass a bill, which one person, the executive, can veto. There may or may not be enough legislators to overcome the veto.

    There’s a purpose in that, and many minority groups are grateful.

    How would you deal with the fact that there are 18,000 same-sex married couples in California and who knows how many same-sex couples who want to be married. On what basis can some same-sex couples be married, and others not?

  24. Sean
    December 7th, 2010 at 12:56 | #24

    “The right of “equal protection” was not ratified to include a right to SSM, and it never could have been. Such a “right” only exists in the imagination of a few powerful people intent on forcing their morality down the throats of their neighbors.”

    You’re merely expressing your moral disapproval of homosexuals and their relationships. The Constitution doesn’t care about your morality. As Justice Scalia noted in his dissent in Lawrence v. Texas, 2003:

    (“If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct, what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of
    procreation, since the sterile and the elderly are allowed to marry.”)

  25. December 7th, 2010 at 14:10 | #25

    How so? Marriage is a right given by states, not the federal government. No one has a right to marriage but if a state is handing out marriage licenses, with tangible benefits, it has to hand them out on an equal basis to all citizens, lacking a rational public purpose to do otherwise.

    Of course, if Proposition 8 is invalidated on the grounds that the state can not extend the privilege of marrying women to men, but not to women, , then that sets the precedent that no state could do so.

    In any event, the ruling can not be limited to California, as some people suggested.

    On what basis can some same-sex couples be married, and others not?

    If they had been married under prior legislation.

    If the age of consent for marriage is raised, marriages that were enacted under the lower age of consent would still be valid. Similar principle applies here.

    Iowa is going through this right now: they’re firing competent judges, voting out incumbents, etc., shopping for judges and legislators favorable to marriage discrimination, and adopting a constitutional amendment integrating discrimination into Iowa’s constitution.

    And yet this case is preventing states like Iowa and Texas from adopting or keeping such state constitutional amendments.

  26. Sean
    December 7th, 2010 at 15:21 | #26

    “that sets the precedent that no state could do so.”

    True, and if the 9th Circuit overturns California’s marriage discrimination amendment, doesn’t that extend marriage equality to all states in the 9th Circuit? In any event, would Prop 8 intervenors dare approach the US Supreme Court, risking the spread of same-sex marriage to all 50 states? Interesting dilemma for them. Somehow I just can’t see that Charles Cooper making the case of marriage discrimination, after having lost in two previous federal courts!

    “If they had been married under prior legislation. If the age of consent for marriage is raised, marriages that were enacted under the lower age of consent would still be valid. Similar principle applies here.”

    I disagree. We’re not talking about an age issue, that would automatically be remedied with the passage of time anyway. We’re talking about the legality of the contract itself. California has an alternate form for legalized same-sex relationships: domestic partnerships. If the state believes that calling the exact same rights with a different label is materially consequential, then how can “the state” (in the form of the Prop 8 intervenors) claim that same-sex married couples cannot use the word marriage, while it lets a select group (18,000 couples) use the word marriage? It undermines the whole case. What burden is it to the same-sex couples to see their marriages converted to domestic partnerships? If there is a burden, that proves that there’s a difference between marriage and domestic partnerships, even with exactly the same rights!

    Is the state saying it’s ok for some same-sex couples to be married, just not too many of them? First come, first served? I’m confused. But I have a sneaky suspicion the mischievous California Supreme Court planted a little bomb!

    Either dissolve these marriages or convert them to domestic partnerships. Connecticut did the reverse when it legalized same-sex marriage: it converted same-sex civil unions to marriages. If California didn’t have domestic partnerships, I’d say fine. But it does.

    I know the conversatives/religionists/Straight Supremacists/Homophobes are all riled up over this issue but at some point, their comfort level is going to have to take a back seat to our nation’s legal system. I’m tired of all the hand-holding and tip-toeing around the legal issues because conservatives are feeling unsettled.

  27. Leo
    December 7th, 2010 at 16:59 | #27

    Sean, the Supreme Court of California disagreed with your analysis when it made its ruling on Prop 8, and you keep telling me a court’s ruling shouldn’t be demeaned. I believe the U.S. Supreme Court will agree with the California Supreme Court on this.

  28. December 7th, 2010 at 17:36 | #28

    True, and if the 9th Circuit overturns California’s marriage discrimination amendment, doesn’t that extend marriage equality to all states in the 9th Circuit? In any event, would Prop 8 intervenors dare approach the US Supreme Court, risking the spread of same-sex marriage to all 50 states? Interesting dilemma for them. Somehow I just can’t see that Charles Cooper making the case of marriage discrimination, after having lost in two previous federal courts!

    Other states (like Idaho for example) will most likely pursue an appeal, as a Ninth Circuit decision on the merits will invalidate their marriage laws.

    We’re not talking about an age issue, that would automatically be remedied with the passage of time anyway.

    Not necessarily, since the marriages were enacted at a time when one of the partners would have been a minor under the current definition.

  29. Sean
    December 7th, 2010 at 18:13 | #29

    “Without gay marriage, what is the set of people a gay man can marry versus the set of people a straight man can marry? They are exactly the same”

    That’s not exactly true, and for a similar reason the government stopped Oklahoma from sterilizing a criminal, reasoning that his chances for finding love would be severely limited by rendering him undesirable to life partners, i.e., women. A gay man does not have the same chance to find a woman marriage partner, because the vast majority of women are heterosexual and desire a male for sex, among other things.

    A gay male is largely uninterested in sex with a woman, even his wife. Few people expect to enter marriage with the expectation of an unsatisfying sex life, even if that’s how it often turns out. Few people enter a marriage permitting a spouse to seek more satisfying sex outside the marriage. The situation is worsened now that same-sex marriage is a viable reality: a straight person can rightly fear that his or her gay spouse will leave once a marriage with a same-sex partner becomes a possibility.

    These are unreasonable burdens on gay people. It’s why the “they can always marry someone of the opposite sex” silliness always fails. I notice that the Prop 8 defense, as lame as it is, isn’t even using that notion. But the Straight Supremacists/homophobes/religionists don’t care whom they hurt, even the straight spouses of gay people, in order to keep marriage away from “the gays”!

    “But do gay marriage activists really want to seriously argue that banning two women from marrying each other is a violation of their rights as women as opposed to violating their rights as lesbians?”

    I guess they do.

  30. December 7th, 2010 at 18:15 | #30

    Also, see the definition of the Grandfather Clause .

  31. Sean
    December 7th, 2010 at 20:07 | #31

    Sorry, should have cited the case, Skinner v. Oklahoma, cited in one of the articles here on RuthInstitute.org.

  32. Leo
    December 8th, 2010 at 09:08 | #32

    Sean has to pretend the Skinner case was about companionship and love and not the procreative aspect of marriage despite the fact that the court talked about “the survival of the race” which obviously refers to procreation not companionship. I have to admire Sean’s single mindedness and imaginative abilities.

  33. Sean
    December 9th, 2010 at 06:40 | #33

    Skinner related to procreation only in the fact that many, if not most, females seek a man not only because that’s who they sexually desire but because they want to create babies with him. In fact, it recognized one of the factors that people want to choose a mate: reproduction. The court recognized that imposing unreasonable burdens on finding a mate are unconstitutional impositions on a fundamental right.

    What about gay people’s right to choose a partner for their own reasons? Isn’t it unreasonable to ask gay people to choose an opposite-sex life partner, when their sexual orientations cause them to desire someone of the same sex? Why impose this burden on them? What’s the public purpose for it?

    There’s lot so downside: higher divorce rates, children raised outside of wedlock, higher stress levels for gays and lesbians, and many other social ills associated with prohibited same-sex marriage. Why should society accept those ills?

  34. Sean
    December 9th, 2010 at 12:03 | #34

    Great quote:

    “However, as argued in the amicus brief of the Constitutional Accountability Center, the text of the 14th Amendment’s guarantee of the “equal protection of the laws” and “due process” for all “persons” is sweeping and universal. In fact, the drafters of the Amendment considered and rejected a proposal that would have made the 14th Amendment’s guarantee of equality specifically targeted at racial discrimination. They intentionally crafted a broader constitutional guarantee of equal rights under the law.”

    A good thing to remember, when one feels the desire to discriminate against gay and lesbian Americans.

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