Legal Analysis of Strauss v. Horton: California’s Proposition 8 Challenge
Though the California Supreme Court in In re Marriage Cases found a fundamental right to marriage equality, it today upheld Proposition 8, the initiative restricting marriage to opposite-sex couples. The 18,000 gay and lesbian couples who wed before Proposition 8, however, are permitted to remain married.
The court rejected the argument advanced by marriage equality advocates that Proposition 8 was a Constitutional revision and not an amendment. The core of the argument was that a fundamental right cannot be taken away by a simple majority vote. The Human Rights Campaign explains the position using this analogy:
It helps to think about this in terms of renovating your home. If you want to paint your house, you just go to the store and select a color, then paint. But if you want to add on to, structurally change, or even demolish your house, you need to get a permit, and typically the work gets done by a licensed professional. Why? Because when you’re dealing with the bearing walls and the structure, you need to take care with what you’re doing, or the whole thing can tumble down. And people can get hurt.
It’s the same with a constitution — through the initiative process, you can embellish and clarify, but you can't move a bearing wall, not without a deliberative process.
The court limited its analysis only to whether Proposition 8 was a valid exercise of the initiative process. In doing so, it reached three main conclusions in the case:
- Only changes to the government’s structure constitute a revision;
- Proposition 8 did not abridge a group’s fundamental rights, but merely limited the word "marriage"; and
- Constitutional amendments do not have a retroactive effect, and therefore the previous marriages must be honored.
I will explore each of these conclusions individually. Quotations have all come from the Strauss v. Horton opinion unless otherwise cited. The full text of the opinion is available on the court's website [pdf].
Amendment versus Revision
The majority opinion offered very little justification for why Proposition 8 was a constitutional revision and not an amendment. On this point, the court merely says the following (internal citations omitted):
[T]he numerous past decisions of this court that have addressed this issue all have indicated that the type of measure that may constitute a revision of the California Constitution is one that makes "far reaching changes in the nature of our basic governmental plan", or, stated in slightly different terms, that "substantially alter[s] the basic governmental framework set forth in our Constitution."
The most troublesome case if adopting this reasoning is Raven v. Deukmeijan, which found that California Proposition 115 — a measure limiting the rights rights of certain criminal defendants — was an unconstitutional revision because it had the "far-reaching changes" the court refers to. But the court overlooks that Proposition 115's unconstitutionality was rooted in its robbing of the power to independently interpret constitutional provisions. The court’s interpretation of equal protection was as infringed by Proposition 115 as it is now by Proposition 8. The Strauss majority opinion is inadequate in specifying how Raven does not control the outcome here.
Rather than relying on — and, by extension, applying or distinguishing — precedential authority, the court engaged in formalistic chatter about the differences between a 'revision' and an 'amendment'. It failed to explain substantively why stripping a historically oppressed minority of their rights to due process, equal protection, and privacy did not amount to a qualitative change to the constitution, and in doing so, functionally ignored one of the plaintiffs' primary arguments. In place of justification, the court instead praises the state’s initiative system, and merely offers that "[i]f the process for amending the Constitution is to be restricted [. . .] this is an effort that the people themselves may undertake."
On this point, it appears as if the court decided the case not on legal grounds, but on political ones; it preferred not to be the body to overturn a popular vote even though the constitution and the court’s own precedent seems to suggest that it must.
Fundamental rights
Strauss v. Horton additionally seems inconsistent with In re Marriage Cases. Though the justices expressed during oral arguments that the playing field had shifted as a result of Proposition 8, such a finding does not support what the court ultimately concluded. Though the opinion offers that "Proposition 8 [does not] fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in [In re Marriage Cases]," the court seems to have forgotten what that case actually found. In it, Chief Justice George outlined the various ways in which domestic partnerships are unequal to marriage. Now, however, the court seems to conclude that the only difference is in the designations.
Proposition 8 did not alter the rights, benefits, or privileges of either marriage or domestic partnerships, so it does not hold that the playing field was shifted by the measure. Strauss's conclusion is wholly inconsistent with the tenets of Marriage Cases and its finding of substantive differences between marriage and domestic partnerships. The court has schizophrenically changed its position while pretending that Marriage Cases said something different than it actually did.
Justice Moreno’s dissent touches even more on this critical point:
Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution.
Retroactive Effect
While the court ultimately concluded that Proposition 8 would not retroactively cancel the marriages of the 18,000 couples legally wed before the measure’s enactment, I am slightly troubled by the reasoning in this area as well.
The text of the amendment plainly states that "[o]nly marriage between a man and a woman is valid or recognized in California." It suggests an intent to apply retroactively. However, by ruling that Proposition 8 is not retroactive, the court implicitly changed the wording and meaning of the amendment. Because such a retroactive application would violate the constitution, the court effected Proposition 8's constitutionality by altering its text. And while the court is empowered to do so, I do not believe its exercise of discretion was appropriate in this case.
Proposition 8 demands that same-sex marriages not be recognized in California. Contrary to the language, however, the court expressly requires that those 18,000 same-sex marriages be recognized. This leaves a host of unanswered questions, most notably the status of individuals who were married in other states before Proposition 8 and therefore denied marriage licenses in California. Will their marriages still be recognized? If so, the court deviates even further from the text of Proposition 8. If not, the court violates its own reasoning for recognizing those 18,000 marriages to begin with.
A more just solution would have been for the court to find the entirety of Proposition 8 unconstitutional, and provide leave for voters to attempt to amend the constitution a second time using text that does not apply its prohibition retroactively. By doing so, the new proposition would not run afoul of the constitution — at least in the court’s mind — and would not create the host of problems unresolved in this opinion.
I believe it goes without saying that I am deeply disappointed by the California Supreme Court’s ruling in Strauss v. Horton. I believe that its jurisprudence was sloppy, and that it failed to adequately address the plaintiff's most persuasive arguments or rely on any legal precedent. I cannot see the case as anything but a black mark on a state that has now fallen behind five others in equality for its citizens. I hope to see the day very soon when voters have the courage to do what the court did not.
On a personal note, your author planned to marry his partner in California in 2010. I can only hope that the law catches up by then.
Have a question, comment, or response? 3 people do.The marriages of 18,000 couples depend on tomorrow’s ruling
Tomorrow morning at 10:00am PDT, the California Supreme Court will issue their ruling in Strauss v. Horton, the case challenging Proposition 8. Now seems to be an appropriate time to highlight one of the 18,000 couples whose marriages may depend on tomorrow's outcome. Below are Jackson and Jacob Howa-Morrow, board members of Family Fairness who were featured in GLAD's Show America What Marriage Equality Looks Like photo album:
Jackson and Jacob were married June 26, 2008 in Palm Springs, California one week after the Supreme Court's decision in In re Marriage Cases that recognized marriage equality in the state. The two have been together for more than five years since meeting in High School. Tomorrow, their marriage will be on the line, but their relationship will not. No matter how the court rules, the fundamental nature of their union cannot be taken away. A simple vote will not prevent gays and lesbians from continuing to form lasting bonds, even if the law refuses to recognize them.
For Jackson, Jacob, and the 18,000 couples whose rights are at risk, I sincerely hope that marriage equality will return to California . Whatever the ruling, a legal analysis of the court's opinion will appear here tomorrow.
Have a question, comment, or response? Share your thoughts.National Call In: The Future of Same-Sex Marriage
The National LGBT Bar Association held a conference call today to discuss the many court and legislative battles the gay and lesbian community has won recently, and also to look at the future of the same-sex marriage movement. Executive Director D'Arcy Kemnitz (pictured left) moderated the call and was joined by Jennifer Pizer, Senior Counsel and Director of the National Marriage Project at Lambda Legal, and Mary Bonauto, Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD).
Among the topics discussed were California's Proposition 8, the recent victories in Vermont, Maine, and Iowa, Washington D.C., the status of efforts in New Hampshire and New York, and GLAD's current federal court Defense of Marriage Act (DOMA) challenge.
UPDATE: A copy of the recording is now available at the National LGBT Bar Association website. You may scroll to the bottom of this post for a link to the approximately 1-hour long audio, or read some highlights of the issues that were discussed: Read More
Have a question, comment, or response? Share your thoughts.DOMA Challenge in Federal Tax Court
Charles Merrill, millionaire and cousin of the co-founder of Merrill Lynch, joined by Kevin Boyle, his partner of 16 years, is making a challenge to the Defense of Marriage Act (DOMA), according to Pam's House Blend. DOMA, the 1996 statute permitting the federal government to ignore same-sex marriages performed by states, has been challenged in federal court before, but Merrill's case marks the first time the discriminatory law has been attacked in tax court.
Merrill has not paid federal income taxes since 2004 as part of an on-going protest against DOMA and the inequalities gay and lesbian couples face in the United States tax code. Merrill, who legally married his partner in California prior to the passage of Proposition 8, argues that DOMA is unconstitutional because states, not the federal government, have the power to define marriage. According to Merrill, "the government has no business in checking out the gender of two people who want to be married."
The litigation makes two points against DOMA: First, that federal tax benefits and obligations should not be restricted solely to opposite-sex couples to the exclusion of legally married same-sex couples, and second that DOMA's definition of marriage is based on religion, which violates the Establishment Clause of the First Amendment.
Merrill's case has been referred to Washington D.C. for an en banc hearing before all 19 judges on the United States Tax Court. Though the court is formally a part of the legislative rather than judicial branch of government, it has previously resolved constitutional issues in other cases. The challenge may be appealed to the Ninth Circuit Court of Appeals and then to the US Supreme Court for final adjudication.
A court date has not yet been set.
Have a question, comment, or response? Share your thoughts.This Week in Gay News Roundup: 4/26 - 4/30
So much has happened on the gay rights front this week. Here is a review in case you missed anything:
- Florida's anti-gay adoption laws are being challenged in both the legislature and the court. Though the legislation is expected to die without a vote next week, the court will soon hold hearings on the issue. The case is an appeal from a lower court ruling that permitted a gay man, Martin Gill, to adopt two abused and neglected brothers. Florida's statute states that no homosexual is permitted to adopt, and is the only state law in the country that completely prohibits an individual from adopting on the basis of his or her sexuality. Via The Miami Herald.
- The New Hampshire Senate Judiciary Committee has recommended tabling a bill that would expand marriage rights to same-sex couples by a vote of 3-2. At least 12 of the state's 24 senators must now support the bill in order for a motion to pass to be entertained. Governor John Lynch, who prefers civil unions, has previously expressed opposition to same-sex marriage, but has not given an official statement on whether or not he intends to veto the bill if it survives the Senate. Via Reuters.
- Update: The Senate has passed the bill 13-11 after an amendment prohibiting polygamy and incestuous marriages was added. It now heads to the governor's desk.
- Iowa began distributing marriage licenses to gay and lesbian couples on Monday, 24 days after the Supreme Court's ruling that approved same-sex marriage. 380 couples took advantage of the law on the first day it was available, including 25 out-of-state couples. Because Iowa law requires a three day waiting period between application and receipt of a marriage license, today is the first day that these 380 couples can officially say that they are legally married. Congratulations!
- The American Constitution Society has begun distributing a new issue brief [pdf] with a novel explanation as to why California's Proposition 8 — the constitutional amendment that re-restricted marriage in the state — is unconstitutional:
[T]o the extent the rights to liberty, privacy, due process and equal protection have not themselves been changed, then the pre-existing interpretation of those rights in Marriage Cases [the suit in which the Supreme Court previously found the right to marriage] must control. Thus, even if Proposition 8 is construed as a permissible amendment (as opposed to a revision), it would necessarily violate separation of powers principles because it purports to dictate a specific interpretation of certain other — indisputably unchanged — constitutional provisions.
Essentially, ACS argues that Proposition 8 cannot simply change marriage law without also changing the fundamental basis upon which the Court found the right to marriage. To do so would unconstitutionally rob the Court of their power to interpret the constitution.
- On the heels of the Designated Beneficiary Agreement Act, Colorado's legislature has now also passed a bill allowing partners of gay and lesbian state employees to gain access to their partner's health insurance plan. The law would require that same-sex couples be in a committed relationship for at least one year before qualifying for the benefits.
- The Maine Senate Judiciary Committee has approved a bill that would open marriage to same-sex couples in the state by a vote of 11-2. The bill now moves to the full state Senate for their vote.
Did I miss anything? Let me know in the comments.
Have a question, comment, or response? Share your thoughts.Couple Raises First Amendment Claim Against Anti-Gay Marriage Amendment
A Louisiana couple is challenging their state's anti-gay marriage amendment in federal court by claiming a violation of the Establishment Clause of the First Amendment. While the couple is also claiming violations under the Fifth and Fourteenth Amendments — the amendments that guarantee equal protection — this is the first time to my knowledge an Establishment Clause claim has been raised against a state's marriage amendment, and one of the few times the federal constitution has been invoked. The previously won court battles in Iowa, Connecticut, Massachusetts, and California had all been based on equal protection within their respective state constitutions.
Louisiana voters amended their state constitution in 2004 with 78% of the vote to restrict marriage to one man and one woman. A challenge to the amendment failed in 2005, when the state Supreme Court upheld its constitutionality.
The First Amendment's Establishment Clause, which states that "Congress shall make no law respecting an establishment of religion" has been broadened to apply to state governments as a result of the Fourteenth Amendment. A claim is generally evaluated by examining the purpose of the law being challenged. In order to survive a challenge, the law must have a secular legislative purpose and must not advance any religion. Kristoffer Bonilla, who is one half of the plaintiff couple and is representing himself pro se, alleges that the law violates this test. He claims:
Moreover, the supporting Louisiana provisions run afoul of the Establishment Clause of the First Amendment by curtailing the right to marry based upon a religious interpretation of the nature and purpose of marriage itself. By failing to articulate a legitimate, compelling and secular interest for the restriction on marriage, the State has necessarily established a wholly religious civil institution.
Though the argument is interesting and cuts to the core of anti-gay marriage amendments, I do not expect it to succeed. Unlike equal protection challenges that have required a law to be rationally related (or, in some cases, narrowly tailored) to a legitimate governmental interest, an Establishment Clause claim requires only a showing of a secular interest. The states that have acted as defendants in these cases have already put forward a number of secular interests served by their marriage amendments, the prevailing one being an interest in raising children in heterosexual, two parent homes. Though such a claim is subpar in an equal protection analysis, it and other advanced secular purposes will likely be sufficient to defeat an Establishment Clause claim. The First Amendment does not require that there be no religious motivation, just that the secular purpose dominates. There is likely not sufficient proof that the state was primarily motivated by religion, or that the primary effect of the law was religious advancement.
I do not believe the plaintiffs in will win much headway fighting Louisiana's law in federal court. Even if they win at trial, I doubt that the current US Supreme Court would be amenable to their arguments. While I believe in the right for any individual to fight to win their rights in court, I fear that Mr. Bonilla will not prevail with his claims. There will be a time that an equal protection challenge will succeed under the federal Constitution, but I do not think that this time is yet upon us.
There has been no public commentary yet from the large impact litigators like HRC or Lambda Legal about this case, and it does not appear that they are involved in any way. And while Forum for Equality — the organization that led the failed 2005 challenge — has made a statement about Mr. Bonilla's petition, they do not appear to be participants in the suit either.
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