Tag Archives: Same-sex marriage

DOMA on its way to review?

District Judge Jeffrey S. White

Is a case in California setting up DOMA for overturn?

A federal judge in California has ruled that a federal appeals judge has no power to order the U.S. government to provide health benefits to the same-sex spouse of a court employee, but went on to invite a constitutional challenge to the law that mandates a denial of such benefits — the federal Defense of Marriage Act.   The judge also indicated that the challenge probably would succeed.

In other words, the appellant, a court employee seeking benefits for her partner, has the wrong procedural posture. She gets until April 15 to file an amended complaint for review of the constitutional grounds of the action preventing the benefits.

With Lambda Legal arguing the case on her behalf and praising the judges dicta that she has a “clear right to relief,” I have no doubt that the case will be amended and refiled.

Stay tuned and remember: if you can’t win at the voting booth, you might be able to win in court, instead.

Rainbow flag flapping in the wind with blue sk...

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(h/t SCOTUSblog)

 

 

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Prop 8 Advocates in Court Today: “Let us stand in for elected officials.”

Election results by county.

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With California elected officials opting out of defending Proposition 8, the advocates for the successful ballot measure went to court today to argue that they should be allowed to defend it in their place.

Their brief, found here, argues that the voter initiative process depends on a legal defense in court. Lyle Denniston at SCOTUSblog summarized the arguments:

The proponents contended that the very integrity of the voter initiative process in California — a prized part of the state’s lawmaking process — depends upon having someone available to mount a defense of a measure against constitutional attack if state officials don’t do so.  Citing a string of California state court rulings, the brief asserted that their interest in protecting Proposition 8 is already clearly established.

But what injury will they face if the measure is not defended?

The Proposition 8 brief sought to anticipate that question of legal injury by contending that, with state officials on the sidelines, the measure’s backers have become “agents of the people” of the state, acting “to preserve the People’s intiaitive power….”

If no one else can take the place of state officials to defend a ballot measure from constitutional attack, the new filing contended, the state’s elected officials will have succeeded in nullifying the measure even though they have no such veto power under the state constitution or state laws.

In short, by choosing not to defend the law–passed by Californians in the Proposition 8 ballot measure–elected officials are de facto overturning the will of the people with a veto they do not hold.

Meanwhile, same-sex marriage advocates have asked the court to lift the stay imposed on the decision striking down Proposition 8 so that they can begin to marry.

 

Stay tuned.

(h/t SCOTUSblog)

Give Iowa a try…

Map of USA with Iowa highlighted
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Iowa judges are under attack for unpopular rulings that have permitted gay marriage in their state.  Unhappy about the rulings, and displeased that so few could overturn the will of the people, activists are looking to check the power of the judges by way of the ballot box. From the Wall Street Journal

[T]his year, conservatives in Iowa are waging a campaign to vote out of office three supreme court judges, who joined a ruling last year that Iowa’s law barring the recognition of same-sex marriage is unconstitutional.

This isn’t the first time I’ve noted the action of one piece of our political “family” (executive, legislative, and judicial) acting against another to check its power.  Our constitution was written in such a way as to disperse power and spread it out, limiting the ability of any one group to tyrannize another. In this case, we see the people, the legislative function by which laws are usually made, acting to check the power of the judiciary.

Judges are intended to be independent so as to be free from political pressure.  This is to enable them to make decisions that are based solidly in the law and the constitution and to act as a restraint against the power of the majority to protect minorities.  However, even this power can be checked. Even when Supreme Court of the United States finds that a law of Congress is misbegotten and unconstitutional, the right to amend the constitution, however high that bar has been set, is still available .

On the state level, because justices are often selected by the executive, they usually have to stand for a “confirmation” vote periodically in order to retain their office.  Usually, because of the low levels of interest in the predominantly mundane work of the courts, few voters follow or even care about confirmation of a judge, and voter turnouts are often low.  In Iowa, voter anger is seeing to assuring that changes.

“We need to vote them off the bench to send a message across Iowa that we, the people, still have the power,” said Bob Vander Plaats, a Republican state politician who is leading the campaign. “Not only will it send a message here in Iowa, but it will send a message in California, in Arizona and across the country.”

The effort in Iowa, the Post reports, worries gay rights advocates and legal experts who say it is wrong to punish judges for unpopular decisions. But on the flip side, campaign advocates say they are simply exercising their democratic right to rein in a judiciary that has overstepped its authority.

Vander Plaats announced this month the creation of Iowa for Freedom, which has rented office space and hired six full-time staff members, who plan to wage a political campaign replete with mailers, phone calls and door-knocking, according to the Post.

While the judges have not, yet, said anything in their own defense, this does raise the question of independence of the judiciary.  Can a judiciary that must cater to the winds of political whim ever be completely, to say nothing of partially, independent and objective sufficient to provide a fair trial?  How can a judge provide a fair trial when he, or she, knows that the parties before them may, or likely will, work to support or oppose their next election?  The result would be that the politically and financially powerful will end up winning their cases, while minorities and poor will lose.

On the other hand, there must be some check against the power of the judiciary to set policy from the bench.  If the judiciary, by one decision, can change a law established by the will of the people, what does it matter that the people have spoken or that the legislature has acted?

Democracy and Judiciary: at odds over Proposition 8

US Federal Supreme Court
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One of the interesting points about American government is the balance in the federal constitution between democratic and non-democratic institutions.  It is, as was intended, a series of checks and balances on the power of too much democracy.  The Congress, the most democratic of the countries institutions at the federal level, is limited by the power of the judiciary, which has the ability to declare laws made by the Congress unconstitutional.  And, of course, there’s the Presidency.  But that’s not the subject of our discussion.  Today we are talking about the balancing between the powers of democracy and the powers the limit democracy.

The Congress is there to represent the will of the people, one step removed from actual rule.  State legislatures, and assemblies, are the equivalent. In some states, the people are able to express their will even more directly in the form of a referendum on the ballot.  A friend of mine in Oregon tells me that the referendum process there is so out of control that the ballot, which is mailed out to every voter, is so full of different voter initiatives that it takes several hours to vote, if the voter actually reads all the material provided to educate them on the referendum. In Utah, right now there is a fight going on between the state legislature and one initiative group that is trying to push through an ethics reform package.   It can get very heated.  But that’s democracy.  Laws are proposed–either in the legislature or in the referendum process–and they are fought over and decided upon in a venue where majority rule of the people, either by representative or by public vote, establishes the law.

In order to prevent oppression of the minority, the constitution establishes a court system that is poised to prevent the majority from unjustly imposing its will upon the minority, what Alexis de Tocqueville called the “tyranny of the majority.”  The crafters of the constitution recognized that in transferring power from a king to the people there was the very real risk that the country would trade one tyrant for another, that of the masses.  In addition to filling the Constitution with various anti-majoritarian clauses to prevent the abuse of the minority by the majority, the founders established an independent judiciary whose job it was to check the power of the people.  When the masses were oppressive, it was the job of the judiciary to invalidate the law, to protect the minority against the unjust actions of the legislature or the people.

And this brings us up to Proposition 8 and Judge Walker’s ruling that the law is unjust to gays and lesbians who want to marry in the state of California, ruling that it violated several parts of the constitution.  He then decided that marriages should begin as soon as Wednesday August 18 at 5 PM.  Supporters of Proposition 8 appealed, and this afternoon a stay was granted until the 9th Circuit could rule on the appeal.

Strangely, this stay, while temporarily preventing gay marriages from beginning in California, was seen by some as a rule in their favor:

Loyola Law School professor Richard Hasen said Monday’s order was strategically advantageous for supporters of same-sex marriage, no matter how disappointed many couples may be. If

the panel had refused to place a hold on Walker’s ruling, the supporters of Proposition 8 were prepared to seek a stay from the Supreme Court. The court is believed to be divided on the question of gay marriage, with Justice Anthony Kennedy considered a swing vote. A vote on a hold might have pushed the justices into taking an early position on the question.

“I think there are strategic reasons why even the most ardent supporter of gay marriage could opt for a stay,” said Hasen, an expert on federal court stays. “The concern is that rushing things to the Supreme Court could lead to an adverse result [for supporters of gay marriage.] If this case takes another year to get to the U.S. Supreme Court, there could be more states that adopt same-sex marriage and more judicial opinions that reach that conclusion.”

Hasen said the hold “takes the heat” off Kennedy and takes the case “off the front burner for a while.”

In other words, the longer gay marriage can move through the courts, the longer it can avoid a potentially devastating ruling by the US Supreme Court.  As more states permit the marriage of gays and lesbians and as more courts overturn challenges to gay marriage, as recently happened in Massachusetts, the belief is that it will become more likely that the US Supreme Court will uphold Walker’s opinion.

But there are naysayers.  Edwin Meese, U.S. attorney general from February 1985 to August 1988,  believes that not only was Judge Walker’s opinion wrong, but it was very wrong and overturns the will of the people with out justification.  he says “Walker’s ruling is indefensible as a matter of law wholly apart from its result.”  The first place he attacks Walker’s opinion is in ignoring binding Supreme Court precedent.

Regardless of whether one agrees with the result, structurally sound opinions always confront binding legal precedent. Walker’s is a clear exception because the U.S. Supreme Court has spoken on whether a state’s refusal to authorize same-sex marriage violates the equal protection and due process clauses of the 14th Amendment. In 1972, Baker v. Nelson, a case over whether Minnesota violated the Constitution by issuing marriage licenses only to opposite-sex couples, was unanimously thrown out on the merits, for lack of a substantial federal question. The Supreme Court’s action establishes a binding precedent in favor of Proposition 8. But Judge Walker’s ruling doesn’t mention Baker, much less attempt to distinguish it or accept its findings.

Indeed, this is a path that is often cited as taken by judges who are seeking to obtain a certain policy.  They see the justice in what they are trying to obtain as a result, and to that end, their opinions cite persuasive evidence to an end.

But Meese takes issue with Judge Walker’s evidence, as well:

Walker’s opinion pretends that the voluminous evidence introduced on the side of Proposition 8 does not exist. It neither acknowledges nor attempts to distinguish the writings of renowned scholars presented at trial in support of Proposition 8, including that of anthropologist Claude Levi-Strauss, history professor Robina Quale and social scientist Kingsley Davis. It ignores the writings of legal giant William Blackstone and philosophers John Locke and Bertrand Russell. It even refused to address the fact that Congress, in the 1996 Defense of Marriage Act, defined marriage as the “legal union between one man and one woman as husband and wife.”

Despite ample evidence introduced into the record that only a union of a man and woman can produce offspring (as if that needs proof), Walker’s opinion denied the relevance of that biological fact. That difference has been the main reason civilization recognized the uniqueness of marriage as between a man and woman, and why courts have repeatedly relied on that common-sense truth.

Despite voluminous evidence and common sense pointing to the contrary, the judge also declared that opposite sexes were never part of the “historical core of the institution of marriage”; “evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different than opposite-sex couples”; traditional marriage is an “artifact”; and, also without reference to the monumental evidence to the contrary, that it is beyond “any doubt that parents’ genders are irrelevant to children’s developmental outcomes.”

And this returns us to the balance between democracy and the judiciary.  Even the judiciary, when acting outside of the law, can be tyrannical in imposing a law on the people that is either unjust, undemocratic, or not their right to impose.  Judge Walker, by Meese’s estimation, has claimed that Proposition 8 imposed a private morality on a small group of people–essentially claiming that the majority is tyrannizing the minority.  Meese does not agree.  Whether or not we want to allow gay marriage is up for debate, but it is not an issue for one man, he says:

Having ignored everything courts typically rely on in making sound judgments, Walker concluded that Proposition 8 was enacted “without reason” and demonstrates “a private moral view that same-sex couples are inferior to opposite-sex couples [and are] . . . not as good as opposite-sex couples.” Nothing in Proposition 8 supports such conclusions, particularly since California law grants same-sex couples all the benefits and protections that apply in traditional marriage.

People can differ on whether, as a matter of policy, states should allow same-sex marriage. The robust debate on that topic should not be short-circuited by judicial fiat.

Yet, according to the federal district court, Americans such as President Obama, Vice President Biden, Secretary of State Hillary Clinton, the majority of members of Congress and the 7 million Californians who voted for Proposition 8 are all bigots who have “no rational reason” to oppose gay marriage.

Prop 8 appeal is in

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Happening today on the left coast: Judge Walker’s Proposition 8 decision was appealed.

The backers of California’s Proposition 8 ban on same-sex marriage have started their appeal to the Ninth Circuit Court of the trial judge’s ruling nullifying that ban under the federal Constitution.  The notice of appeal was filed right after the ruling was issued on Wednesday; it is here.

At the Circuit Court, the case (Perry, et al., v. Schwarzenegger, et al.,) has now been docketed as 10-16696.  That Court has now issued ascheduling order.  Under that order, the case will not be fully briefed until late December; any extensions of filing dates must have the court’s approval.

In the meantime, the trial judge, U.S. District Judge Vaughn R. Walker, is expecting briefs later today on whether he will put his decision on hold while the proponents of Proposition 8 pursue their appeal.