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5 posts from February 19, 2012 - February 25, 2012

February 22, 2012

Another federal judge finds DoMA unconstitutional

Judge Jeffrey White issued an opinion today in Golinski
Golinski v. OPM, ruling that DoMA is unconstitutional under the Equal Protection Clause. Golinski, a federal government employee, sought health insurance coverage for her spouse; the two were married in California during the period when same-sex marriages were legal there (after the California Supreme Court ruled that the gay exclusion was unconstitutional and before the voters amended the state constitution).

The outcome is not a surprise. Judge White's inclinations were clear from the questions for counsel that he circulated prior to the oral argument in December. 

The opinion declares both that sexual orientation classifications are subject to heightened scrutiny and that DoMA is unconstitutional even under a rational basis standard. Judge White clearly believes in hedging his bets.

From MetroWeekly:

...Golinski ... is represented by Lambda Legal Defense and Education Fund. Because President Obama and the Department of Justice have stopped defending Section 3 of DOMA in court challenges, the Bipartisan Legal Advisory Group -- led by House Republican leadership -- had opposed Golinski's request in court.

In part, U.S. District Court Judge Jeffrey S. White today found that Section 3 of DOMA violates the equal protection rights of Golinski, finding that heightened scrutiny applies -- as urged by the DOJ -- and noting that it might not even pass rational basis -- the lowest -- legal scrutiny:

The Court concludes that, based on the justifications proffered by Congress for its passage of DOMA, the statute fails to satisfy heightened scrutiny and is unconstitutional as applied to Ms. Golinski.

Although the Court finds that DOMA is subject to and fails to satisfy heightened scrutiny, it notes that numerous courts have found that the statute fails even rational basis review.

Later, he wrote:

The Court finds that neither Congress' claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further.

Finally:

The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.

Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy, J., concurring).

In conclusion, White finds and orders:

In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse.

Accordingly, the Court issues a permanent injunction enjoining defendants, and those acting at their direction or on their behalf, from interfering with the enrollment of Ms. Golinski's wife in her family health benefits plan.

Bill Eskridge on Perry and the constitutional politics of marriage

[posted at Stanford Law Review online]

Eskridge
In Perry v. Brown, the Ninth Circuit ruled that California’s Proposition 8 violates the Equal Protection Clause.[1] Reacting to the state supreme court’s recognition of marriage equality for lesbian and gay couples, Proposition 8 was a 2008 voter initiative that altered the state constitution to “restore” the “traditional” understanding of civil marriage to exclude same-sex couples. The major theme of the Yes-on-Eight campaign was that the state should not deem lesbian and gay unions to be “marriages” because schoolchildren would then think that lesbian and gay relationships are just as good as straight “marriages.”

Is taking away a minority group’s status as marriage-worthy constitutionally problematic? Judge Stephen Reinhardt’s opinion for the Ninth Circuit panel found it so, and the court demanded that the initiative’s proponents demonstrate a public interest (apart from moral condemnation) justifying this discriminatory demotion in status. The proponents’ primary justification was that discrimination against lesbian and gay couples helps the state encourage “responsible [i.e., marital] procreation” by straight couples. Judge Reinhardt could not understand how taking away marriage from lesbian and gay couples can reasonably be understood to encourage straight couples to procreate within a marital union.

In the blogosphere, Judge Reinhardt’s Perry opinion has come under heavier fire from commentators favoring marriage equality than from those opposed to equality. Some gay-friendly commentators have lamented that the Ninth Circuit did not announce a general right of lesbian and gay couples to marry all over the country and have criticized the court’s narrow reasoning as “dishonest,”[2] analytically “wobbly,”[3] and “disingenuous.”[4] In my view, the court got it right, as a matter of law and as a matter of constitutional politics.

Start with the role of federal courts of appeals in our rule of law system: their role is a limited one, a point these pro-gay commentators have neglected. Such courts (1) are supposed to address the particular factual context presented by the parties, (2) must follow the binding precedent of their own circuit and of the Supreme Court, and (3) ought usually to choose narrow rather than broad grounds for decision. Judge Reinhardt’s Perry opinion is exemplary along all three dimensions.

Proposition 8 intended that gay and lesbian couples be carved out of civil marriage and relegated to a separate institution, domestic partnerships. The court properly viewed this official status segregation with suspicion—a suspicion that was confirmed by the proponents’ open denigration of lesbian and gay marriages and their inability to tie taking away marriage rights to a genuine public interest. The original meaning of the Equal Protection Clause was that the Constitution does not tolerate class legislation—namely, laws that separate one class of citizens from the rest and bestow upon its members a less esteemed legal regime and, with it, an inferior status.[5] This is exactly what Proposition 8 did. Hence, Judge Reinhardt was strictly enforcing the original meaning of the Equal Protection Clause, as applied to the facts before him.

Should Judge Reinhardt have gone further, to rule that lesbian and gay couples in all states enjoy a “fundamental” right to marry, resulting in strict scrutiny that would be fatal to the exclusion of such couples in the laws of the more than forty states now denying marriage equality? For two decades, I have maintained that the Constitution does assure lesbian and gay couples such a fundamental right.[6] But I am not a court of intermediate appeal. As such a court, the Ninth Circuit panel was right, as a matter of standard legal practice, not to engage this broader argument.

First, Judge Reinhardt’s opinion focused on the particular deprivation imposed by Proposition 8, which was distinctive in several respects: it took away a right that state law had deemed “fundamental,” and it did so in the context of an initiative campaign that was exclusively focused on denying lesbian and gay persons the special status associated with marriage in our society. The typical role of a court is to figure out how legal authority should be applied to particular facts. Unlike a legislature, which usually speaks in broader, generally applicable rules, a court applies general rules to particular facts.

Second, courts are supposed to prefer narrow rather than broad grounds for their rulings. Indeed, this is the genius of the common law. Rather than making broad pronouncements, courts in our legal system typically make narrow pronouncements grounded in the facts. At some point, a broad principle may emerge for an issue that recurs. The common law pragmatically believes that general principles come slowly and incrementally, through a series of modest rulings, fortified by social and political feedback, and then expanded if society moves toward the larger precept. Constitutional law operates in the same common law manner, and the issue of marriage equality is one on which the country as a whole is not at rest.[7]

Third, precedent supports the narrower reasoning of Judge Reinhardt as opposed to the more sweeping reasoning advocated by some commentators. The Supreme Court has said very little about how the Equal Protection Clause applies to gay people. In Romer v. Evans, the Court struck down a Colorado initiative that took away some antidiscrimination rights enjoyed by gay persons.[8] The Court emphasized that the initiative took away from a disadvantaged minority guarantees of equal treatment that most Americans take for granted, and it did so without a clear justification based on the public interest. Proposition 8 did the same thing, and Judge Reinhardt was right to follow binding Supreme Court precedent.

To be sure, Romer was different from Perry in one respect: the Colorado initiative took away a variety of specific legal rights and benefits, while the California initiative took away a unique status (i.e., marriage). These are different kinds of deprivations, but they are qualitatively similar in their affront to the Equal Protection Clause. Consider a history-based thought experiment.

In Loving v. Virginia, the Supreme Court invalidated state bars to interracial marriages.[9] Assume that the opponents of marriage equality in one state responded with a law taking away from interracial spouses a dozen legal rights linked with civil marriage. And assume that opponents in another state responded with a law taking away from interracial spouses the status of being married but gave them all the legal benefits and rights under a separate institution, call it “domestic partnership.” Adhering to Loving, lower federal courts would have to strike down both laws, and for basically the same reason: both laws would violate the equality mandate by creating a subordinate class of citizens. In some respects, the latter law (like Proposition 8) is a more open status denigration, but both laws would be constitutionally problematic.

Thus, Judge Reinhardt was required by Romer to strike down California’s Proposition 8. There is no Supreme Court precedent that is as close to this case as Romer. If he had ruled that lesbian and gay couples have a fundamental right to marry or that sexual orientation classifications are inherently suspect, Judge Reinhardt could have reasoned from Supreme Court precedent, but there would have been no precedent as much on point as Romer.[10]

As a matter of constitutional law, Judge Reinhardt’s opinion was more rigorously reasoned than either the trial court’s opinion that he affirmed or the views of commentators who would have liked a more sweeping ruling. The fans of a broader ruling, of course, are more inspired by constitutional politics than by constitutional law—but they are wrong about the politics as well.

As the proverbial “least dangerous branch,” the federal judiciary (headed by the Supreme Court) is unable, and usually unwilling, to strongly challenge entrenched inequalities in this country. Judges may be willing to nudge the country in the right direction, but rarely do they give a hard shove until the balance of antiminority prejudice and prominority sympathy has shifted toward the latter.

Recall the interracial marriage bars. The Supreme Court could have invalidated them right after Brown v. Board of Education.[11] The Court decided not to do so,[12] reluctantly but wisely. The justices understood that democracy itself is threatened if forced to prematurely decide an issue that intensely but evenly divides the polity.[13] In 1955, three-fifths of the states barred interracial marriages, and feelings ran high on the issue. By 1967, only a third discriminated in this way, and many opponents felt less strongly.[14] Only then did the Court insist on marriage equality for interracial couples. Southerners bitterly criticized the Court, but the racist cause of open apartheid was lost by 1967.

The crusade against marriage equality for gays is still robust in the United States today. Only seven states (perhaps eight soon, pending the passage of legislation in Maryland) and the District of Columbia now recognize same-sex marriage. More than forty states specifically forbid it, most as a matter of state constitutional law. Americans are evenly divided on the issue, and partisans on both sides have heated feelings. Under these circumstances, the federal judicial branch ought not to issue broad rulings that pretend to decide the issue once and for all. This was a lesson of Roe v. Wade, a prematurely sweeping decision.

For this reason, the Supreme Court would be wise to deny review for the Ninth Circuit’s decision or to go along with Judge Reinhardt’s narrow ruling. California is ready for marriage equality in ways most of the rest of the country is not: there are thousands of openly lesbian and gay couples, many rearing children, who have persuaded their neighbors and coworkers that marriage equality would be good for their communities. Opposition remains, but its intensity has diminished.

Other states are not ready, because there are fewer openly lesbian or gay families and because opposition is more widespread and more intense. It is likely that the federal courts of appeals in the South would be reluctant to reach exactly the same result as the Ninth Circuit in Perry. For now, the Supreme Court should deny review of those decisions as well. This would allow individual states to deliberate further, consistent with the common law tradition and with the Court’s view of the states as “laboratories of experimentation.”

Marriage equality is an idea whose time has come for California, as well as for New York, whose legislature recognized marriage equality last year.[15] But has its time come everywhere in the country? I fear not. The nation’s constitutional culture is much more accepting of lesbian and gay couples today than at the turn of the millennium, but much of the country is still hostile to gay people generally and marriage equality in particular.

Does that mean the Ninth Circuit and the Supreme Court should cower behind a constitutional heckler’s veto? Of course not. But when the hecklers are the bulk of the audience, the constitutional speaker needs to tread more carefully. Courts can help put an issue on the public law agenda, and they can channel discourse into productive directions. They can also help create conditions for falsification of stereotypes and prejudice-driven arguments, such as the canard that gay marriage will undermine “traditional” marriage. But courts cannot create a national consensus on as issue about which “We the People” are not at rest. And nationally, the people are not at rest.

In the United States, as a whole, marriage equality is an idea whose time is coming. And Judge Reinhardt’s decision in Perry v. Brown advances the ball just a little, and not too much.

Continue reading "Bill Eskridge on Perry and the constitutional politics of marriage" »

February 21, 2012

Prop 8 backers to seek en banc review

From MetroWeekly:

Charles Cooper, the lead attorney for the proponents of Proposition 8, tells Metro Weekly that the proponents of the California marriage amendment will be asking the full U.S. Court of Appeals for the Ninth Circuit to review the three-judge panel decision issued on Feb. 7 holding that Proposition 8 is unconstitutional.

Although Cooper, of Cooper and Kirk PLLC, told Metro Weekly the filing has not yet been made, the filing is expected later today as today is the deadline for the filing to seek en banc review. The move almost guarantees that the U.S. Supreme Court will not consider the case before this November's presidential election.

Usually, en banc review involves all of the active judges on the court, but the Ninth Circuit -- due to the more than 20 active judges on the circuit -- has adopted a unique "limited en banc" procedure in which all the active Ninth Circuit judges vote whether en banc consideration will be given but only 11 judges hear the en banc consideration. That will be the request made by today's filing by the proponents.

If a majority of the court's judges support en banc consideration, then the chief judge of the circuit, Judge Alex Kozinski, and 10 randomly selected appellate judges from the circuit will hear the en banc appeal, which can involve briefing and oral arguments.

After that decision is reached, theoretically, a party dissatisfied with an en banc ruling of the Ninth Circuit can ask for the full Ninth Circuit to review the en banc panel's decision, but the court has not agreed to do so since adopting the "limited en banc" procedure.

After en banc consideration, the unsuccessful party could then petition the U.S. Supreme Court to hear the case. At that point, the parties submit written arguments explaining to the court why the justices should or should not hear the case. Then, if four of the nine justices agree to hear the case, another round of briefing occurs, with the parties and outside organizations and individuals arguing the merits of the case to the justices. Oral arguments are then set and held at the Supreme Court, and some time later a decision is handed down.

Matt Coles on the Perry decision: Can it be limited to California?

ImgresMatt Coles, former Director of the ACLU LGBT Rights Project and now Deputy National Legal Director of the ACLU, and I will be trading comments this week on the Ninth Circuit panel decision in Perry v. Brown [2012 WL 372713]. 

Following are Matt's comments on the decision. I will respond in a future post.

 

Are taking away and denying different under equal protection? 

 Judge Stephen Reinhardt’s opinion for the Ninth Circuit Court of Appeals in the Prop. 8 case purports, in effect, to limit the decision to California.  The only question the Court need answer, Reinhardt writes, is whether the “…elimination of the rights of same-sex couples to marry…” was constitutional (slip op. at p. 2, emphasis in the original).  Since California is the only state that gave same-sex couples the right to marry and then took it back, the Perry case applies only to California as long as there is a constitutionally significant difference between withdrawing a right, as California did, and withholding it in the first place. 

The context of a case can change the legal rule that applies.  If I am arrested for speaking on public property, it matters whether I am standing in a park or at the entrance to the county jail.  Speech in parks gets greater protection.

Judge Reinhardt appears to say that the difference between withdrawing and withholding does matter for constitutional purposes because withdrawing a right “…suggests a more deliberate purpose than does the inaction of leaving it as it is.”  But amending a constitution to preemptively deny marriage to same-sex couples is more deliberate than inaction as well.  More to this point, there isn’t much in equal protection law to suggest that degrees of deliberateness matter.   

The Opinion seems to be on slightly stronger ground when it then invokes Romer v. Evans as authority for the proposition that withdrawing a right can violate the constitution even when denying it in the first place would not have.  Colorado’s Amendment 2, the subject of the Romer case, took away the power of the Colorado legislature and local legislative bodies to protect gay men, lesbians and bisexuals from discrimination.  There was no argument in Romer that Colorado was required to pass laws forbidding discrimination against LGB people. 

Still, Romer won’t hold the weight the 9th Circuit wants to lay on it.  Colorado’s Amendment 2 did repeal three municipal ordinances.  But it also forbade the state legislature, which had not passed any laws protecting LGB people, from ever enacting any.  The Court draws no distinction between the withdrawal of actual rights in the three cities and the preemptive withholding at the State House.  In describing the effect of Amendment 2, it treats them as of a piece.  The problem with Amendment 2 was not that it repealed the ordinances, but that it imposed a selective constitutional bar to protective legislation.

At one point the 9th Circuit opinion suggests that the somewhat confusing “literal violation” section of Romer establishes a rule of equal protection that withdrawing rights creates “an inference of animus” (slip op at 16), which requires “careful consideration” of possible legitimate interests which might rebut the inference (at 17).   Over the years the Supreme Court has resisted the suggestion that from time to time it employs a form of “heightened rational basis” review.  (See Heller).  Nevertheless, if there is rule calling for more careful review once an “inference of animus” has been raised, the device that raises the inference under Romer is a selective constitutional bar to legislation, not a withdrawal of existing rights.  An inference like that would be raised not just by Proposition 8 but by all 29 state constitutional amendments which forbid state legislatures from permitting same-sex couples to marry. 

Still, there is another way that the context of a case may distinguish it legally from another otherwise similar case.  Some aspect of the context may make the constitutional analysis turn out differently.  That’s the other reading of Romer; that the selective bar on constitutional protection caused Amendment 2 to flunk the rational basis test when the failure to pass a protective law would not have.  Whether the withdrawal of rights that was Prop. 8 does that as well is the subject of part 2.  

Part 2: What makes California special  

Even if the presence of a particular fact does not call up a different legal rule than its absence would, the fact can change the outcome of a case if it changes the way the constitutional analysis comes out.  So for example in the Cleburne case, the city argued that requiring homes for the mentally disabled to go through a special permit process was rational because the area was in a 500 year flood plain, which raised evacuation concerns.  Without more, that might have seemed rational.  But the local zoning code allowed hospitals and other group uses without the special permit process.  The Court found it difficult to see how group homes and hospitals could be thought different in terms of evacuation. 

The question in the Prop. 8 case then is whether the fact the 9th Circuit focuses on—that Prop. 8 withdrew rights LGB people had—changes the way equal protection analysis comes—or ought to come—out.

The 9th Circuit says the sponsors of Prop. 8 and allied Friends of the Court offered four rationales for Prop. 8, and then gives us five: 1) increasing the likelihood that children will be raised by two biological parents; 2) channeling “irresponsible procreation;” 3) proceeding with caution before making major changes to marriage; 4) protecting religious freedom; and 5) preventing children from being taught that same-sex relationships are as good as heterosexual marriages. 

The Circuit’s explanation of why the last three rationales are not rational does not in any sense turn of the fact that Prop. 8 withdrew rights from LGB people. 

The Court says that a ban on marriage for same-sex couples cannot be thought of as “proceeding cautiously.”  A moratorium, which allowed the legislature to decide after study (not far from what the Hawaii amendment did), it suggests, would be moving cautiously.  A ban is an end.  That’s true enough, but it is also true of the other 28 state constitutional bans passed by voters. 

The Circuit tells us Prop. 8 can’t rationally be thought to have been aimed at making sure that religious institutions wouldn’t be required to provide services to same-sex couples since Prop. 8 didn’t change the anti-discrimination laws.  That’s especially true since “domestic partnership” in California is a marital status protected from discrimination just as marriage is.  If the crucial fact turns out to be that same-sex couples retain the same protection against discrimination, it’s a distinction California shares with the seven or eight (depending on what you do with Nevada) states that also have full civil union.  If it’s the fact that the Proposition alone didn’t change the civil rights laws, it’s a distinction shared with the other 28 amendment states.

The Circuit has a similar explanation for why the teaching rationale won’t fly: Prop. 8 made no changes to the laws on what schools can or can’t teach.  Whether that is true of some or all of the other 28 states turns on their education laws (some may require that marriage be taught as superior, while California does not).  But even if California is alone here, it is because of its education laws, not the withdrawal of marriage.  So we don’t know if California stands alone.  (In this section, the Court hints at what might be a far better reason to reject this argument: that it comes down to nothing more than saying we will make LGB people inferior so that our children can be taught they are so.  That seems a clear violation of the bedrock rule that you can’t make people unequal just because you want to treat them differently.  But that’s another piece)

Then there is the first rationale—getting children raised by two biological—read opposite sex heterosexual—parents.  According to the Court, Prop. 8 did not increase the likelihood that children will be raised by pairs of biological parents because it did not change California’s laws on parenting.  Both before and after Prop. 8, committed same-sex and committed opposite sex couples had precisely the same rights and obligations to become parents and raise children.  Again, all quite true, but true as well of all nine full civil union states.

Which brings us to the favorite of marriage opponents, “irresponsible procreation.”  A lot of people make fun of this, but they shouldn’t.  It isn’t crazy to think that one purpose of marriage is to entice and pressure heterosexuals to enter into a binding union so that they’ll stay together and raise their offspring together.  It is one of the functions of marriage.  Judge Reinhardt is quite right though that while pressuring heterosexuals to commit might explain why you would only extend marriage to them, it is no explanation for taking marriage away from same-sex couples.  It is no explanation, that is, unless “channeling procreation” is the only purpose of marriage, something even the most rabid opponents of marriage for same-sex couples are unwilling to say (right now).

So while the fact that Prop. 8 took rights away from same-sex couples doesn’t change the legal rule used to analyze it, it does change the analysis.  But not completely.  And how much it is truly limited and how much it is not may have a great deal to do with what happens next.  That’s the subject of part 3. 

Part 3: Adding it up.

The claim that marriage is not extended to same-sex couples because one of its purposes is to pressure heterosexuals to have children inside a committed union may or may not make sense elsewhere.  It doesn’t make sense in California where the issue is not who ought to be included in marriage, but why it ought to be taken away from same-sex couples. 

 That leaves the “irresponsible procreation” argument alive in the other states of the 9th Circuit and untouched by 9th’s reasoning elsewhere.  That’s important, because “irresponsible procreation” has become the leading successful argument for not extending marriage to same-sex couples (see the Conaway case in Maryland, the Andersen case in Washington and the worst reasoned of the whole lot, the Hernandez case in New York). 

Denying the protections of marriage to the children of same-sex couples might discourage some of those couples from having children where those protections aren’t otherwise available; that is in a state that doesn’t a civil union or domestic partnership.  So that argument is alive in Arizona, Alaska, Idaho and Montana.  But it is dead in Hawaii, Nevada, Oregon and Washington.  The existence of identical treatment for both kinds of couples make “two biological parents” an untenable argument for refusing to extend as well as to exclude same-sex couples from marriage in civil union states.  That’s probably true of the “religious freedom” and “teaching our children” rationales as well. 

 The “cautious approach to change” rationale is pretty much a dead letter in the 9th except in Hawaii, which fits the bill because it’s amendment allows the legislature to extend marriage to same-sex couples (all the 9th Circuit states passed anti-marriage state constitutional amendments). 

So it is true that in one very important respect—the viability of what has become the leading argument for limiting marriage to opposite sex couples—California stands alone.  Moreover, and this should not get lost in the shouting if the case does get to the Supreme Court, the Court’s reasoning on the other significant rationale—encouraging opposite sex parenting--apply to California and the other civil union states, but not beyond.  So except for one patently silly claim—that forbidding something in your fundamental charter is a way of giving it measured consideration—even on the secondary arguments, this is no more than a case about granting legal equality but using the law to deny social equality.   Not that that isn’t enough; it just isn’t everything. 

February 19, 2012

The week ahead: February 20, 2012

February 23-25 - A conference on Democracy and the Workplace at UNLV Law School, exploring the dynamics of employee participation in workplace governance issues.

February 24 - A conference on Reproductive Justice: Examining Choice and Autonomy in the New Milennium will include discussion of access to reproductive technologies by lesbians; at Thomas Jefferson School of Law in San Diego.

February 24-25 - The second LGBTQ Civil Rights Conference at Chicago-Kent Law School.