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The vulnerability of the Perry decision (Part 2 of 2)…

[…Continued from last post….]

The second assumption in the Perry decision that concerns me relates to the idea of marriage as a fundamental right, and the complementary idea that such a right cannot be taken away by popular vote.

Popular beliefs to the contrary, there are no such things as absolute rights. Even the plaintiffs against Proposition 8 qualify their claim by noting that the right to marry a person of one’s choice “is sheltered by the 14th amendment from the states unwarranted usurpation of that choice…” Whether we are talking about basic liberties such as freedom of speech, rights to privacy or property, etc., it is well-established legal and constitutional doctrine that limitations can be imposed where “warranted”.

This is the defining narrative, in fact, which the District Court judge follows throughout, noting that it is conceivable to impose “burdens” on the exercise of a fundamental right if the government is able to provide “state interest” rationales that can withstand “strict scrutiny”…

So far so good, and the decision does provide substantial support for the claim that marriage is a fundamental right. As such, there has to be a pretty substantial reason for burdening — let along eliminating — such a right, whether legislatively or by popular initiative.

Nevertheless, it should be noted that this “fundamental right” stands on a foundation of substantive due process assumptions. This blog post is no place to get into the implications of that status, but it amounts to the assertion that there are certain rights not explicitly mentioned in the Constitution (e.g., privacy, property, etc) that cannot be qualified without appropriate governmental justification. The Court has deemed these as “substantial” and fundamental as those which are explicitly mentioned (e.g., speech, assembly, press). Constitutional originalists (such as Scalia) and literalists (such as former Justice Hugo Black) have in the past applied much narrower perspectives on what constitutes a fundamental or substantive right, and in that sense the claimed right to marry might prove as controversial and vulnerable as the right to privacy. And, of course, one can never really tell which case will prove to be the tipping point that puts a good many widely accepted constitutional protections in jeopardy. As appeals go forward, I don’t think the victors in the Perry decision should ignore the possibility that this case might prove to be the precedent breaker.

Another aspect of this decision is explicitly related to the status versus conduct distinction recently highlighted in a New York Times analysis and referred to in an earlier post. Gender and sexual orientation are not regarded as behaviors or acts, but rather as status or classification. The prohibition against marriage for those claiming such status is not associated with any harmful act or public safety issue that would warrant singling them out as a class. This section of the decision–in which the judge reviews each of the “purported interests” that proponents of Proposition 8 claim–is perhaps the most entertaining part since he carefully and effectively undermines each with skill. The bottom line is that he finds no “rational basis” for the Proposition other than moral beliefs which are ruled out of order in this case with  classic quotes taken from earlier SCOTUS decisions:

  • California’s obligation is to treat its citizens equally, not to “mandate [its] own moral code.”
  • “[T]he Constitution cannot control [private biases] but neither can it tolerate them.”
  • “[M]oral disapproval, without any other asserted state interest,” has never been a rational basis for legislation.

All this bodes well for the decision’s survival on appeal, except for the fact that the crucial “status/conduct” distinction is based on a very tenuous 5-4 majority on the current SCOTUS. The slippage of one-vote–particularly that of Justice Kennedy–can make this decision into legal mincemeat….

So celebrate we should and shall — but beware the potential flaws in the decision.

August 5th, 2010 Posted by | accountabilitybloke | no comments

The vulnerability of the Perry decision (Part 1 of 2)…

[Warning: double density zone ahead!]

I had two reactions to the federal court decision in Perry v Schwarzenegger. On the one hand, I was really pleased that a federal court had done the obvious and found that the 14th amendment prohibited discrimination when it comes to marriage laws. On the other hand, upon closer reading I became anxious about the sustainability of this decision on appeal. As much as we might want to celebrate the outcome of the case at this juncture, there are flaws in the decision which make it vulnerable to being either overturned or declared moot and irrelevant when applied to a revised effort to prohibit same-sex marriage in California.

I base my anxiety on a couple of assumptions that are built into the logic of the decision.

First, is the assumption that a state constitutional provision can be treated and assessed as if it was merely legislative in nature.

Second is the assumption (actually two) (a) that a fundamental right cannot be eliminated by popular vote and (b) that the right to marriage is in fact a (substantively) fundamental right under the U.S. Constitution.

Despite the length of the decision (everyone is pointing out that it is 130+ pages in length) it is the logic of these assumptions that concern me.

Assumption One: The “assessment” standards for Prop 8

Regarding the first assumption, one has to remember there’s a difference between a constitutional amendment and a legislative initiative. The standards for assessing the constitutional amendment are different then those courts have used to assess a piece of legislation. Legislation can be measured against the constitution under which it is passed to, and the standards applied to it demand conformity with the basics set forth in the that constitution (whether it be state or federal). Obviously, the words of the law (per se) that will be put on the books as a result of the legislative act must be sufficiently clear and in conformity with the Constitution. Any law, of course, is open to possible interpretation–which is why the legislation from which it is derived often includes lots of “whereas” and “therefore” clauses, i.e., so that there will be some understanding as to why they passed the law. (This is especially true when the law may seem to conflict with some provision of the Constitution.)

For example, a law establishing capital punishment for certain crimes clearly needs justification since it is an explicit deprivation of life and liberty, two things we hold to be at the heart of our fundamental rights. Assuming there is no explicit constitutional prohibition against capital punishment, death penalty legislation (through the whereas-therefore rationale)  would have to establish that there is a compelling justification for government to deprive a person of life and liberty.

Similarly, a law derived from either a legislative body or some popular ballot initiative (e.g. California’s proposition 22 on gay marriage passed in 2000) must also meet the standard of reflecting some compelling reason for trumping some basic right. In that sense, the California Supreme Court decision declaring proposition 22 to be unconstitutional (relative to the California Constitution) was probably right on target (of course, it is always more complicated than you might expect…).

A constitutional amendment, in contrast, does not necessarily require justification in the same sense. Such amendments are not, in fact, law per se — but rather the foundations and parameters of law. They are the basis of law, which is why, if they have some substantive implications for public policy, they must be put into effect through the passage of legislation. For example, we are all familiar with the Prohibition amendment (18th) to the U.S. Constitution which allowed the federal government to take certain actions regarding the production and importation of alcoholic beverages. But it took the passage of the Volstead Act in 1919 to actually initiate prohibition.

Things get a bit more complicated at the state level, especially in California where constitutional amendments are frequently accomplished through the popular vote (initiative) process. Proposition 8 was a relatively simple amendment to the California Constitution: it added to Article I, Sec. 7.5 that “Only marriage between a man and a woman is valid or recognized in California.” As stated, this is a declarative statement that has no explicit law or legal action attached to it. It doesn’t have all the “whereas–therefore” provisions, because it does not have to justify itself. It is what it is. That said, logically it either requires a law to put it into effect, or it is assumed to be put into effect through its modification (reinterpretation) of existing law. (In this specific case, that modification was to close a loophole in Section 308 of the Civil Code which was the basis for opening up same-sex marriage in the 2008 California Supreme Court case that overruled Proposition 22.)

There was precedent for this approach in California where, in 1972, the voters passed a constitutional amendment that declared that the death penalty was not to be considered “cruel and unusual punishment” in the state. This initiative was also the result of the California Supreme Court decision that declared the death penalty unconstitutional (under the state constitution), and what it effectively did through constitutional declaration is bring back into effect capital punishment in California. Again, there was no “whereas–therefore” rationale provided–nor did there have to be as far as the California Supreme Court was concerned when, in 1979, it upheld the amendment saying that it “validates the death penalty as a permissible type of punishment under the California Constitution” and that such was allowed “to the extent permitted by the federal Constitution” (a point to keep in mind)

The problem with the Perry decision is that it does not address the fact that constitutional provisions do not have to meet the same standards as legislated provisions. In fact, I found it strange that such a major decision would leave itself open and vulnerable to challenge on this point without mentioning or addressing the issue. Rather, the judge decided to treat Proposition 8 as if it were merely a piece of legislation and not a Constitutional amendment. The decision is clearly based on the idea that proponents of Proposition 8 were not able to point to any substantial rationale for violating what the court regarded as an established fundamental right to marriage. But if constitutional amendments are in fact not reviewable under the same standards as legislation, then the decision may prove basically flawed — or at least vulnerable to rejection under the scalpel of Scalia and company.

There are two ways of getting around this problem. One is to accept the fact that the constitutional amendment process is a valid exercise of the initiative prerogative in California, but to hold that its legislative impact was merely implicit and therefore had no effect unless its provisions were explicitly manifest in California’s civil code. That could happen in one of two ways: either through legislation (by the legislature or through another initiative) or through a decision of the California Supreme Court that reinterpreted current law in accordance with the implied meaning of Proposition 8 (which is, in effect, what happened). In either case, the Perry challenge should be focused on the legislation (or interpretation) derived from Proposition 8 rather than on the Proposition itself. My anxiety relates to the fact that the decision addresses the proposition directly as if it was merely legislation rather than a constitutional amendment — and this may provide an opening for those who appeal the decision.

The second way around the problem is to go back to the standard set in that 1979 death penalty amendment case (People v Frierson). If I read that case correctly, the California Supreme Court was taking note of the fact that a state constitutional amendment does have to meet a higher standard, i.e. that it does not violate provisions of the federal Constitution. In short, this puts the focus on the constitutionality of Proposition 8 on firmer grounds than that used in the decision of the Perry case. The judge asked the question: is there a demonstrable and compelling “state interest” in discriminating against same-sex marriage couples? In doing so, he leaves open the possibility that there can be a valid rationale for limiting the rights of gay and lesbian couples. But had he focused on whether such an amendment was permissible under the federal Constitution, the “state interest” loophole implied in his decision would not even be a factor.

Having exhausted the reader (if you have indeed gotten this far) with this dense argument, I hate to say that I still have one more vulnerable assumption in the decision to tackle, I’ll save that for the next post…

August 5th, 2010 Posted by | accountabilitybloke | no comments

Proposition 8 Lawsuit — Brilliant!!!

Having been distracted from blogging by both Twitter and Facebook, I am posting today an item that will not “fit” either. It is a message/post (now email) to the Slate Political Gabfest in reaction to some comments in their latest podcast (about halfway through) made about the Proposition 8 federal lawsuit filed by Ted Olson and David Boies. Here is the email:

Was a bit taken aback by the dismissiveness of both Emily [Bazelon] and David [Plotz] to the federal lawsuit filed by Olson and Boies. Characterizing it as a bad move by two well-meaning biking buddies indicated that neither of you seemed to explore the basis of the suit — and relied mainly on the superficial reports in the press. OK, David can be forgiving for that — he is not a lawyer. But Emiliy — please don’t tell me that you cannot see the constitutional basis for this action….

I am no lawyer, but I have studied some Con Law related to my work and writing, and it seems clear to me that current precedent does provide the basis for a strong case against the State of California not on the basis of any federal rights related to marriage, but rather the Court’s past rulings against state actions (even by popular vote) that violated equal protection of the laws.

1. The California Supreme Court’s ruling opening the way to gay marriage was based on equal protection provisions of the state constitution at that time. Any legislative act or referendum that violated that provision of the state constitution was just that — unconstitutional. Thus the Court’s initial ruling.

2. Last November the referendum in Prop 8 was actually an amendment to the state constitution explicitly designed to make an exception to the equal protection application. Thus, this past week’s ruling by the same court was not a change of mind, but rather a change made in light of an explicit adjustment in the state constitutional provision under which the first ruling was made. (And since the new constitutional provision did make the change retroactive, the marriages already performed had to stand — no ex post facto, and all that…)

3. That said, the constitutional change by referendum, explicitly removing rights previously determined to exist under California law, constituted a state action in violation of the US Constitution’s equal protection guarantees.



The precedent? Well, if you consider the logic of Brown and other civil rights cases, what was found unconstitutional were those actions (e.g., Jim Crow laws) that explicitly denied equal protection of the laws of Blacks in the access to and use of public services such as education, public transportation, etc. More directly are those reapportionment cases where the explicit attempt to deny equal representation (one man (sic)/one vote) by legislation or state constitutional provisions to establish a state legislative chamber representing “counties” or other nondemographic division. And most relevant is the 1964 case of Lucas v. Forty?Fourth General Assembly of Colorado where the Court held that efforts to get around one-person/one-vote through constitutional amendments put befor ethe voters were indeed unconstitutional….

Bottom line, Olson and Bois have firm constitutional grounds for their challenge. The irony is that there would be no case if the anti-gay marriage forces had not been successful — for as long as the state had not taken the step of explicitly exempting gay couples from an already established right to marriage, there would be no federal case….

The lawsuit is not only not frivolous, it is brilliant in its logic and worthy of going forward….

May 30th, 2009 Posted by | accountabilitybloke | no comments