hunter of justice

BDSM case goes to Supreme Court

by guest blogger Harper Jean Tobin

The US Supreme Court recently agreed to hear a case involving the seemingly technical but highly important question of when a criminal conviction can be overturned based on the possibility that it was based on conduct that occurred before any law made it illegal. While the case is already generating headlines, you are not likely to hear a great deal about the Ex Post Facto Clause issue at the heart of the appeal. Instead, media coverage has and presumably will continue to focus on the involvement of both the defendant and the complainant in the case in the BDSM subculture.

The prosecution and conviction in United States v. Marcus shocked many people, not least members of the BDSM (bondage/discipline, domination/submission, and sadomasochism) community, who alternately condemned the defendant for violating the moral standards of the community and worried that they too could be at risk. Glenn Marcus and the woman identified in court records only as Jodi met in 1998 and began what the prosecution conceded was initially a consensual “Master/slave” relationship. A year later, however (the State contended), the relationship became non-consensual because of Marcus’s cruelty and threats, and Jodi was blackmailed into remaining in the relationship by his threats of showing explicit photos of their activities to Jodi’s family. Marcus’s defense vigorously contested the charges, which turned on Jodi’s testimony that she withdrew her consent and only continued the relationship out of fear. Marcus was convicted of forced labor and sex trafficking under the Trafficking Victims Protection Act of 2000, based on Marcus’s sexual and BDSM activities with Jodi and on forcing Jodi to work on maintaining his BDSM website.

The Second Circuit overturned Marcus’s convictions (538 F.3d 97), saying that because the government built its case largely on events that occurred before the TVPA’s enactment, and the trial judge failed to instruct the jury on the matter, it was at least possible that the verdict was based conduct that was not a federal crime when it occurred. (Notably, then-Judge Sonia Sotomayor wrote a concurring opinion suggesting that the relevant circuit precedents were at odds with Supreme Court precedent. Sotomayor has now recused herself from the case.) Accordingly, Marcus was entitled to a new trial, focusing exclusively on whether Marcus coerced and abused Jodi in late 2000 and 2001. The Supreme Court will now decide whether a conviction can be reversed based only on a possibility, as opposed to a likelihood, that it was based on pre-enactment conduct, and thus whether the new trial will proceed.  Although it is the Court’s job to focus on the specific legal questions presented to it, some members of the Court will likely be unable to resist delving into the morality and legality of BDSM. The legal arguments and media coverage of the case, therefore, should be digested with the following in mind:

Marcus’s conviction turned on the question of consent. Marcus’s defense has contended throughout that he has been imprisoned for consensual BDSM activities, and that Jodi, on whose testimony the whole case hinged, brought a false case to prosecutors, long after the fact, because of a dispute over pictures of her on Marcus’s website. By contrast, the prosecution contended that this was a case about a relationship that began consensually but turned into something different and criminal. At the urging of the defense, the court’s jury instructions specified that the terms “physical restraint,” “threats of serious harm,” “force” and “coercion” in the federal statute must be interpreted so as to exclude consensual BDSM conduct. 487 F.Supp.2d 289 (E.D.N.Y. 2007). While the very idea of consensual BDSM, and the distinction between a consensual “Master/slave” relationship and actual captivity and abuse, may have been difficult for jurors to comprehend, the jury convicted Marcus in light of these instructions and the trial court found the evidence sufficient to uphold the verdict in light of this interpretation of the law. Marcus has not challenged the sufficiency of the evidence on appeal, and accordingly the factual question of consent is now closed, as far as the courts are concerned.

The most sensationalized facts of the case actually involved consensual activity. Jury instructions notwithstanding, the prosecution and the press certainly capitalized on every available detail to paint a picture of a depraved abuser. In particular, press accounts emphasized that Marcus whipped Jodi, cut the word “slave” onto her stomach with a knife, shaved her head and branded her with his initial. However, Jodi testified and the government conceded that these activities were consensual, occurring before she moved to Maryland to be closer to Marcus and months before she became afraid and wanted to leave him. While cutting and branding may seem extreme to some, there is nothing inherently abusive about these activities. What shows Marcus to be an abuser and a criminal, if that is what he is, is not the physical things he did but that did them through force and coercion rather than mutual consent.

From the start, Marcus crossed lines within the BDSM community. Though Marcus has been publicly defended by personal friends in the BDSM community, the community as a whole has been ambivalent toward the case. Marcus’s approach to M/s relationships, as detailed in the trial record, included notions of “consensual non-consent” and “no-limits submission” that are controversial within the community. That is, Marcus made it known that once a woman had committed to his service, he would ignore her objections to specific activities or requests to leave. According to the trial record, Marcus used threats of blackmail to manipulate Jodi, and at one point instructed Jodi to entice her sister to visit and to drug her so Marcus could rape her (she refused). Some community members have suggested that the Marcus case may illustrate the legal boundaries of responsible BDSM, with “safe, sane and consensual” BDSM clearly protected by the law, and practitioners of “consensual non-consent” acting at their own risk.

The Supreme Court will hear arguments in United States v. Marcus (case no. 08-1341) early next year.

Defenders of Prop 8 seek to win Perry case without trial

The defendants in Perry v. Schwarzenegger have filed a motion for summary judgment in which they seek a ruling that, notwithstanding any factual disputes, there should be no trial because controlling precedents compel a ruling that Prop 8 is constitutional.

A summary judgment motion is a completely predictable move by defendants - try to get the plaintiff's case dismissed before you have to spend any time or money in discovery or trial. What is unusual is that in Perry, the judge has repeatedly demanded that the parties create a full factual record. (See this earlier post, or just click on the category "Perry  lawsuit" to get the background.) Despite that, though, this motion is the logical next step for defendants who have argued from the beginning that the constitutional challenge brought by the Ted Olson/David Boies team is, literally, groundless.

The motion is 117 pages long, so at this point I will just summarize the main points on which the defendants are relying, and add a little commentary:

> That the Supreme Court has foreclosed the question of whether there is a constitutional right for same-sex couples to marry by its dismissal of an appeal from one of the earliest marriage challenges - in Minnesota in 1973 - in a case called Baker v. Nelson. More in a future post about why this is a bogus argument, but for now suffice it to say that one or two things about the law have changed in the last 36 years, and the precedential weight of that form of dismissal is not entirely clear in any event.

> That there is no fundamental right to marry for same-sex couples because, under Washington v. Glucksberg, the test for such a right is whether it is grounded in history, and the right to "same sex marriage" isn't.  But then, of course, the right to marry is.

> That there should be no heightened scrutiny for sexual orientation classifications because two criteria for such scrutiny are not met: sexual orientation is not immutable and gay people wield "substantial political power." And that these two assertions are not only correct but beyond reasonable dispute? - this is a hornet's nest for both sides.

> That even under rational basis review, California voters had good reasons to enact Prop 8, including, among others, that "the traditional institution of marriage promotes:...the formation of naturally procreative unions;...stability and responsibility in naturally procreative relationships; [and] the naturally and mutually beneficial bond between parents and their biological children." Nothing new here.

> That Prop 8 is not tainted by animus. You've got to be kidding.

Oral argument on this motion is scheduled for October 14.  Sure wish I could be there ringside - it's going to be quite a show.

Happy 89th birthday to women's right to vote

The Nineteenth Amendment - women's suffrage - was ratified on August 26, 1920, when Tennessee put the campaign to secure ratification of two-thirds of the states over the top. It seems like another world, until one realizes, as Hillary Clinton noted of her mother, that a fair number of little old ladies among us were born before women could vote.

Here's the NY Times coverage:

Washington, Aug. 26 -- The half-century struggle for woman suffrage in the United States reached its climax at 8 o'clock this morning, when Bainbridge Colby, as Secretary of State, issued his proclamation announcing that the Nineteenth Amendment had become a part of the Constitution of the United States.

The signing of the proclamation took place at that hour at Secretary Colby's residence, 1507 K Street Northwest, without ceremony of any kind, and the issuance of the proclamation was unaccompanied by the taking of movies or other pictures, despite the fact that the National Woman's Party, or militant branch of the general suffrage movement, had been anxious to be represented by a delegation of women and to have the historic event filmed for public display and permanent record.

Secretary Colby did not act with undue haste in signing the proclamation, but only after he had given careful study to the packet which arrived by mail during the early morning hours containing the certificate of the Governor of Tennessee that that State's Legislature had ratified the Congressional resolution submitting the amendment to the States for action.

None of the leaders of the woman suffrage movement was present when the proclamation was signed. "It was quite tragic," declared Mrs. Abby Scott Baker of the National Woman's Party. "This was the final culmination of the women's fight, and, women, irrespective of factions, should have been allowed to be present when the proclamation was signed. However the women of America have fought a big fight and nothing can take from them their triumph."

Leaders of both branches of the woman's movement- the militants, headed by Miss Alice Paul, and the conservatives, led by Mrs. Carrie Chapman Catt -- some of whom had been on watch nearly all night for the arrival of the Tennessee Governor's certification, visited the State Department, and the militants sought to have Secretary Colby go through a duplication of the signing scene in the presence of movie cameras. This Mr. Colby declined to do, on the ground that it was not necessary to detract from the dignity and importance of the signing of the proclamation by staging a scene in imitation of the actual signing of the proclamation....

At the same time Mr. Colby congratulated the women of the country on the successful culmination of their efforts in the face of discouragements, and declared the day "marks the opening of a great and new era in the political life of the nation."

"I confidently believe," said the Secretary, "that every salutary, forward and upward force in our public life will receive fresh vigor and reinforcement from the enfranchisement of the women of America. To the leaders of this great movement I tender my sincere congratulations. To every one, from the president, who uttered the call to duty, whenever the cause seemed to falter, to the humblest worker in this great reform, the praise not only of this generation but of posterity will be freely given."...

Late this afternoon Mrs. Carrie Chapman Catt, head of the National American Suffrage Association, and Mrs. Helen H. Gardiner, another active worker in that organization, were received at the White House by President and Mrs. Wilson. The National Woman's Party, known as the militants and a rival organization to that headed by Mrs. Catt, was not represented.....

A mass meeting [and jubilee at Poll's Theatre tonight] was attended by women from every section of the country and a number of officials of the administration, including members of the Cabinet, were present.

DoJ's new tune on DoMA

The Department of Justice has just filed a new brief in the Smelt case that defends the constitutionality of DoMA, but also states the Obama administration's opposition to DoMA as a policy matter and explicitly repudiates anti-gay arguments based on parenting. It was DoJ's earlier brief in this case that prompted a firestorm of criticism from lgbt advocates.

The new brief continues to argue that sexual orientation classifications are subject to only rational basis review and that Congress was justified in enacting DoMA. So the bottom line defense hasn't changed. (There was never much reason to imagine that DoJ would fail to defend DoMA in court, however, especially in this across-the-board challenge.)

The most powerful and important aspect of this new brief is its categorical statement that there is no rational basis for the arguments in favor of discrimination that are grounded in claims about procreation and child-rearing. (See quotes below)  This puts the federal government on record as to these claims in a way that has never happened before. 

From the brief (emphasis is mine):

Under that deferential [rational basis] standard, this Court should find that Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo regarding the distribution of federal benefits in the face of serious and fluid policy differences in and among the states....Under rational basis review, Congress can reasonably take the view that it wishes to wait to see how these issues are resolved at the state level before extending federal benefits to marriages that were not recognized in any state when Congress tied eligibility for those benefits to marital status.

...[T]he government does not contend that there are legitimate government interests in "creating a legal structure that promotes the raising of children by both of their biological parents" or that the government's interest in "responsible procreation" justifies [DoMA]. [Multiple professional groups] have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents...[T]he United States does not believe that DoMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interest to defend DoMA's constitutionality.

In addition, the new brief emphasizes much more than the first one did that plaintiffs' challenge to DoMA can be dismissed solely on jurisdictional and standing grounds, without reaching the merits at all.

The Perry backstory: California scheming

The origins of the big kahuna of lgbt litigation - Perry v. Schwzenegger - are very LA. So what better place to get the backstory than an article in Variety?  Excerpts follow -

This suit is funded and directed by a newly formed group, the American Foundation for Equal Rights, that boasts Rob Reiner, Bruce Cohen and Dustin Lance Black among its board. The group is spearheaded by Chad Griffin, who worked in the Clinton White House in the 1990s before setting up an industry-centric political consultancy firm in L.A. ...

In a strongly worded letter to the [lgbt groups seeking to intervene] made public in July, Griffin charged that the groups had "unrelentingly and unequivocally acted to  undermine this case even before it was filed. In light of this, it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening."

While both sides are looking to Judge Walker for some kind of resolution [on who will control the litigation], the case reflects the tensions that have arisen following the passage of Proposition 8, and the anxiety among some Hollywood activists to take a different approach, even on their own.

Even before the election, some entertainment figures were growing nervous about campaign strategy. For instance, rather than channeling funds through the campaign, Ellen DeGeneres bought $100,000 worth of ad time on her own to run a spot against Prop. 8.

At the time, showbiz was accused of not doing enough, as many were   focused on the presidential race. But Griffin (as a consultant to the No on 8 campaign) helped secure contributions from Brad Pitt, Steven Spielberg and others. Along with Cohen, he was a central organizer of an event at the home of Ron Burkle that raised about $4 million, and produced an ad featuring Sen. Dianne Feinstein (D-Calif.). As the election neared, the polls narrowed, but they still fell short.

After Prop. 8 was passed, and protesters and activists called for a new ballot initiative in 2010, Griffin sought a different approach: a federal suit. After consulting legal and political experts and industry donors, including Reiner and Cohen, he was tipped that Olson was supportive of same-sex marriage rights.

They met in November, and Boies was approached about the case the   following month. It was a coup to land Olson and Boies, lawyers who argued on opposite sides of Bush vs. Gore, pursuing the same goal. Their effort could prove a much more expeditious way of securing same-sex marriage than pursuing it state-by-state in courts or through the electoral process.

"People's constitutional rights should never be subject to a popularity contest at the ballot box," Griffin says. He also has concerns about timing. He notes that with recent poll numbers in support of same-sex marriage below 50%, a campaign would need about $40 million to $60 million to succeed. "Once all necessary ingredients are in place, I believe this campaign could cross the 50% threshold," he says. "I suspect that is not in 2010."

The Griffin group and the trio of orgs are not the only ones with disagreements about how to forge ahead. The Courage Campaign, a  progressive org led by Rick Jacobs, is going ahead with plans to pursue an initiative next year. However, Equality California, one of the leaders in the fight against Prop. 8 last year, announced that it would wait longer to pursue an initiative in 2012. It cited current polling numbers and fund-raising difficulties. ...

Judge ups the ante in Prop 8 challenge litigation; more to come

Wasting no time, U.S. District Court Judge Vaughn Walker, who is hearing Perry v. Schwarzenegger, has zapped both the plaintiffs' team of attorneys (led by Ted Olson and David Boies) and defendants' lawyers (Charles Cooper et al) with an order essentially rejecting their case management statements for insufficiency. (Read Plaintiffs' case management statement and Defendants' case management statement.) The statements are intended to identify the issues on which the parties will introduce evidence; they also contain proposed schedules for different stages in the lawsuit. Judge Walker directed them to rewrite the statements to more specifically identify both the points they intended to contest (e.g., the existence or extent of the political powerlessness of lgbt people, a point relevant to the constitutional standard that will be applied in the case), as well as potential witnesses and categories of witnesses (historians, sociologists, economists, demographers, oh my).

The new order seems to be a good sign for the advocacy groups trying to intervene as plaintiffs, since their main complaint about the Olson/Boies litigation strategy has been its hesitancy to invest in building an extensive factual record. Judge Walker apparently values the capacity to map out a detailed plan for presentation of evidence, a challenge for which the groups can draw on their long experience in mounting gay rights litigation.

Both existing parties were ordered to revise their case management documents and file them tomorrow. The lgbt groups seeking to intervene will also file one tomorrow. The contours are starting to take shape of what could be the most extensive mobilization ever of experts and documents in an lgbt rights case.

On Wednesday, the combatants meet again in the courtroom to argue the pending motions to intervene and probably to hear the judge's timetable for discovery and pre-trial motions. Over the coming week, I'll be writing a series of pieces on aspects of the Perry lawuit.

Dellinger on Souter on social change and the Supreme Court

By Walter Dellinger, from Slate, writing on the role of public opinion in Supreme Court decision-making:

...It was not a mere coincidence that when the court stuck down homosexual sodomy laws in Lawrence v. Texas in 2003, the number of states that still had such laws was about the same as the number of states that still had de jure school segregation when Brown was decided—in each case, the retrograde states made up about one-fourth of the country. In contrast, when the court sustained state laws banning the use of lethal medication in Washington v. Glucksberg, the rejected claim of a right to physician-assisted suicide had not yet been recognized by even a single state.

What makes these questions so timely is that David Souter ... addressed these issues in a very powerful way just [before leaving the Court] in an passage that may well have been intended as a valedictory message to the court and a caution to those who litigate on behalf of individual liberty. In his dissent in the DNA case, District Attorney's Office v. Osborne, Souter wrote extensively about issues of substantive liberty that he did not need to address in order to decide the case before him. He obviously had some things he really wanted to say before hanging up his black robe.

In his essay-within-an-opinion, Souter clearly had the sweep of the court's future in mind, and not just any single issue. It is still hard to avoid the conclusion that one issue in his mind was gay marriage. His carefully nuanced message both defends the legitimacy of judicial recognition of "non-traditional" rights and cautions against a premature quest for national judicial rules.

Souter, recognizing the value of "continuity with the past," accepts the proposition that tradition is a "serious consideration" in judging whether a practice is "outside the realm of reasonable governmental action." He rejects, however, the notion that tradition defines and limits the scope of the liberties entitled to judicial protection against hostile legislation.

A true originalist, Souter refuses to limit individual rights to the time-bound set of liberties that the Framers of the 14^th Amendment would have include had they chosen to adopt a specific list. The short answer is that the Framers did not so choose. They deliberately wrote with a broad brush and left particular applications to the future. In carrying out that mandate, Souter writes, the court must look to "widely shared understandings within the national society" that can change "as interests claimed under the rubric of liberty evolve into recognition."

Having defended the concept of evolving liberty, Souter then turns to the important question of when it would be "premature for the Judicial Branch to decide whether … a general right should be recognized."

"The beginning of wisdom," he writes, "is to go slow." Before declaring "unsympathetic state or national laws arbitrary to the point of being unconstitutional," he writes, a wise court will "recognize how much time society needs in order to work through a given issue."

His opinion then takes what seems to be an extraordinarily personal turn. He may be speaking of himself (or his rural neighbors) when his says that "[w]e can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally." Sometimes, he says, "an attachment to the familiar and the limits of experience" limit "an individual's capacity to see the potential legitimacy of a moral position."

So, too, it is with the broader society, which "needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim." Souter's final message to his conservative colleagues is that conceptions of liberty evolve. And his last caution to those litigators pushing the frontiers of liberty is that nations, like individuals, need time to assimilate new thinking....

Perry update: Judge Walker sets initial dates for trial preparation in Prop 8 challenge

In a hearing this morning in San Francisco that was originally scheduled for consideration of a possible preliminary injunction, U.S. District Court Judge Vaughn Walker did exactly what he had indicated in a prior order: he effectively denied the preliminary injunction by merging it with full-scale consideration of the merits. Then he began scheduling the steps prior to a trial.

From the San Jose Mercury:

Walker gave lawyers on both sides until early August to sort through the factual issues in order to establish a framework for a trial that could take place by the end of the year. ... Walker envisions an expansive, unprecedented exploration of the civil rights challenge over gay marriage, ranging from the history of discrimination against gays to arguments over the impact of same-sex marriage on traditional marriage and child-rearing.

Judge in Perry case wants trial preparation to begin re: Prop 8

U.S. District Court Judge Vaughn Walker, who is hearing the Perry v. Schwarzenegger case, has issued an order changing what had been scheduled as a hearing on a preliminary injunction on Thursday into a status conference, so that the case can skip the preliminary injunction phase and move directly to discovery and other trial preparation. This is a smart move by Judge Walker, and doesn't really cost the plaintiffs much, since the chances were virtually nil that the judge would have enjoined the enforcement of Prop 8 at the outset of the case. The effect of this order will be to delay the case reaching the Ninth Circuit Court of Appeals, but when it does go up on appeal, there will be a full evidentiary record.

The order also grants the motion to intervene filed by Prop 8 proponents, who are now its lead defenders, since AG Jerry Brown has declined to defend its constitutionality. They have retained Cooper & Kirk, a virtual stable of ex-Reagan and Bush administration attorneys. Cooper & Kirk will get to play big litigator smackdown with Ted Olson and David Boies.

Most interesting, though, are the questions that Judge Walker identified for both further briefing and factual development.  He has directed the parties to produce evidence supporting their respective positions on a broad range of questions:

• "The facts necessary to establish the appropriate level of scrutiny under the Equal Protection Clause," including whether sexual orientation affects the ability to contribute to society and "the relative political power of gays and lesbians"
• Facts supporting the proffered state interests in preserving Prop 8, including "whether the exclusion of same-sex couples from marriage leads to increased stability in opposite-sex marriage" and " whether a married mother and father provide the optimal child-rearing environment and whether excluding same-sex couples from marriage promotes this environment"
• On the sex discrimination claim, the judge identified the question of "whether requiring one man and one woman in marriage promotes stereotypical gender roles."
• Relevant to the question of whether there was discriminatory intent behind Prop 8, the court may look into evidence of voters' motivations, including advertisements.
• Lastly, the court indicated that there may need to be a record made on "the differences in actual practice of registered domestic partnerships, civil unions and marriage, including whether married couples are treated differently from domestic partners in governmental and non-governmental contexts."

This is going to be a hell of an evidentiary record!

HT: the new order was first reported by Law Dork.

California AG files admission that Prop 8 is unconstitutional

California AG Jerry Brown filed an answer Friday in Perry v. Schwarzenegger containing the following statement:

The Attorney General of California is sworn to uphold the Constitution of the United States in addition to the Constitution of the State of California. ... Taking from same-sex couples the right to civil marriage that they had previously possessed under California's Constitution cannot be squared with guarantees of the Fourteenth Amendment.  Accordingly, the Attorney General answers the complaint consistent with his duty to uphold the United States Constitution, as Attorney General Thomas C. Lynch did when he argued that Proposition 14, passed by the California voters in 1964, was incompatible with the Federal Constitution. Reitman v. Mulkey, 387 U.S. 369 (1967).

In Reitman, the U.S. Supreme Court invalidated on federal constitutional grounds a California constitutional amendment (Prop 14) adopted in a voter referendum that barred the state from prohibiting a property owner from refusing to sell or rent to any person. 

Brown's action essentially guarantees that the Alliance Defense Fund will be granted intervenor status and will be the party that defends Prop 8. So It's going to be ADF lawyers versus David Boies and Ted Olson. Stay tuned.

ACLU issues analysis of Sotomayor rulings

The ACLU has issued a detailed analysis of Judge Sonia Sotomayor's judicial record. The conclusion:

In general, Judge Sotomayor's judicial opinions reflect a detailed attention to the facts and a close regard for precedent.  They are carefully reasoned but do not engage in broad discussions about constitutional philosophy or competing modes of constitutional interpretation. Because Judge Sotomayor's opinions are so fact-based and rarely stray far from well-established precedents, they are often difficult to characterize as either liberal or conservative.

HT: Sharon McGowan

The Perry case and the roller coaster ride to come

As I am sure my readers know, two aging super-litigators with too much time on their hands - Gore lawyer David Boies and uber-Republican Ted Olson - have joined forces to argue that Prop 8 violates the Equal Protection Clause of the U.S. Constitution.  They are correct, of course. But as everyone also knows, the lgbt advocacy groups have successfully prevented a federal constitutional challenge to marriage exclusion for more than a decade. This is because the current Supreme Court is, shall we say, extremely unlikely to rule favorably.

Now along come Dave and Ted looking for a new way to regain the media spotlight (watch press conference here) and, voila, we have a whole new ballpark opening with a whole new (major league) addition to the endless-gay-marriage-debate world series. And indeed for those who are only spectators to what admittedly can seem at times like a spectacle, the new lawsuit will shake things up and provide some excitement and entertainment.  But for those who are serious advocates, it will bring endless and unnecessary headaches.

More important than the complaint in the new case is the fact that plaintiffs are seeking a preliminary injunction, meaning that they are asking the court to block enforcement of Prop 8 immediately. (See motion for preliminary injunction.) To justify such fast action before any factual hearing, courts require plaintiffs to demonstrate that they have a strong likelihood of success on the merits. This move forces the court to go quickly to the underlying legal claim, even though it imposes a higher-than-normal standard for the plaintiffs to meet; ie, they have to persuade the judge not just that they are correct, but that it isn't a close case, and that they clearly would win after fuller consideration of background facts and so forth. It is true that in this situation, one imagines that everyone in California not living in a cave has pretty much heard as much about gay marriage as it is possible to absorb, but that is different from the kinds of facts about, for example, the impact of the exclusion on gay families that lawyers could develop and present to the court on a slower time track. (By contrast, building a rich factual record was Lambda's strategy in their successful Iowa case.)

So the new lawsuit (Perry v. Schwarzenegger) is now scheduled to be heard before Judge Vaughn Walker in federal court in San Francisco in a little more than a month: July 2. Judge Walker is known as a somewhat unorthodox conservative. It seems hard to imagine that he will grant this preliminary injunction, but then you never know about California Republicans.

In any event, either a denial or a grant of a preliminary injunction is immediately appealable (most decisions prior to final judgment cannot be appealed, but rulings on an injunction are an exception). This means that the case will go to the Ninth Circuit, possibly by the end of this year. Things get interesting there, because the Ninth Circuit Court of Appeals has ruled (in Witt v. United States, 527 F.3d 806) that infringements of important liberty rights based on sexual orientation will be closely scrutinized.  The court wrote:

We hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the intrusion must significantly further than interest, and the intrusion must be necessary to further that interest.

Will the Court of Appeals strike down Prop 8?  It all depends on the panel - which three judges are chosen at random to hear the appeal.  Whatever their decision (and it could take a while), the losing side will seek to have the entire Ninth Circuit hear the case again, en banc. 

What all this means is that lots and lots of words will be written on the constitutionality of Prop 8 - and implicitly, on the legitimacy of every other state constitutional amendment barring gay marriage. And the words will be virtually the first on gay marriage from the federal judiciary (with a few minor exceptions). And they will be very, very important.

[There is also a much less well known case that was filed in early March, which is in federal district court in Santa Ana, CA: Smelt v. United States. It too challenges Prop 8 and also DoMA on federal constitutional grounds. The government's response to the complaint in that case is due June 11. Plaintiffs did not seek a preliminary injunction, which means that it is unlikely that Smelt will get to the Court of Appeals before Perry, although if the judge dismisses the complaint for failing to make a viable claim, that order can be appealed.]

Either case can only truly be won with a victory in the Supreme Court. Would Stevens, Kennedy, Ginsburg, Breyer and Sotomayor rule that state constitutional amendments barring gay marriage were unconstitutional under the Fourteenth Amendment? If they weren't Supreme Court Justices, I actually think they might.  That is, if they were voting in a legislature or a referendum, I think it is possible that public opinion has shifted so much on this issue that at least several of these five individuals might be persuaded that the current regime is unconstitutional. But would they - all five of them - put the Court in the still definitively minority position of mandating this kind of equality in every state?  I just don't see that happening.

The Perry case could also be not lost, in two ways that come immediately to mind.

First, I can imagine a scenario in which the Ninth Circuit strikes down Prop 8, and then the state of California (assuming that some progressive Dem is making the decision) elects not to seek review in the Supreme Court.  Of couse, rightwingers can imagine the same scenario, which is why the Alliance Defense Fund is seeking to intervene as a defendant. Given that California AG Jerry Brown did decline to defend Prop 8 in the Strauss case before the state supreme court, I think that ADF has a pretty good argument for being granted intervenor status.  Once a party has intervened, it can file appeals and make the other litigation decisions that an original party can make. An intervenor is not relegated to filing amicus briefs, the great majority of which are read only by the judges' clerks.

Second, California voters could repeal Prop 8, thus making the case moot. How ironic is it that civil rights advocacy groups might seek a popular referendum so that they don't have to live with the decision of a federal court?

Is it impossible that this lawsuit - of all cases - will turn out to be the gamechanger, the big kahuna of lgbt rights? No. And the stock market could gain 1,000 points on Monday.  But I wouldn't put any money on either of those long shots paying off.

The Prop 8 challenge decision: less than meets the eye, but promising more to come

Despite all the heartburn it has engendered, my bet is that Strauss v. Horton (2009 WL 14444594), the decision upholding Prop 8, will not have much lasting effect, at least directly, on lgbt rights law.

Fundamentally, the case was about the criteria necessary before a change to the California constitution could be considered a revision rather than an amendment. The most important issue it raised was how to classify an amendment depriving a minority of a deeply important symbolic, although only symbolic, badge of inferiority. The California Supreme Court was not the first to find that a marriage inequality amendment should be considered an amendment rather than a revision: as the opinion noted, appeals courts in Oregon and Alaska reached exactly the same result upholding exactly the same distinction in those state constitutions.  But the California court was not bound by the other rulings. It could have engaged the much more difficult - and interesting - question of what equality means when a separate status is materially equal, but nonetheless functions as inescapable social stigmata. Denying the "m" word may seem trivial, but its effects can metastasize throughout the daily lives of gay Californians who would choose to marry, eating away at their human dignity.

The court could have gone there, but it didn't, and instead provided a mechanical, low-key rationale for why this one change didn't fundamentally alter the constitutional structure of state government. The continuing recognition of sexual orientation as a suspect classification for state law purposes merely illustrates that marriage is the only zone of de jure distinctions in state law that anyone bothers to fight about much any more, at least in progressive states like California.

The decision does leave Connecticut as the only state where the highest court has ruled that an already existing civil union system is not constitutionally sufficient, and that the term "marriage" must be open to same-sex couples in order for equality to be achieved. However, legislatures in the Northeast are moving on their own. Vermont essentially came to the same conclusion legislatively, and New Jersey seems poised to follow the Vermont sequence (lose marriage case in court --> adopt civil unions --> win marriage in legislature) later this year. New Hampshire, perhaps joined by New York, may adopt the Massachusetts/Iowa/Maine model of skipping civil unions entirely and going directly from no state recognition of same-sex couples to marriage.

I suppose that one silver lining of the Prop 8/Strauss outcome is that it should silence those who argue that the lgbt community has achieved so much political power that it no longer needs heightened constitutional protection. California has become the 30th state in which the constitution explicitly singles out gay people for exclusion from a fundamental right. That's stunning and certainly unique. It's both a political mountain that will have to be climbed and evidence of a degree of opprobrium and assumption of moral superiority that's pretty breathtaking.

Indeed, framed that way, the success of the anti-gay state constitutional amendment strategy creates a pretty damn good argument for federal constitutional recognition of sexual orientation as a suspect class. Which brings up the last indirect and ironic byproduct of the Prop 8 decision - the wacky world of David Boies' and Ted Olson's arrogant new adventure in litigation.  More on that in a later post.

Tributes to Mary Dunlap

Ruth Robson has a lovely post at the Con Law Professors blog about the pioneering work of San Francisco  litigator Mary Dunlap, including a remarkable analysis of gender and sexuality she wrote that was published 30 (!) years ago in the Hastings Law Journal: The Constitutional Rights of Sexual Minorities: A Crisis of the Male/Female Dichotomy, at 30 Hastings L. J. 1131. Mary's article was part of a Symposium on Sexual Preference and Gender Identity.

The movie version is on its way. Jonathan Joiner and Robert Martin have completed a short - Gay Olympics: Claiming the Title - that tells the story of the fight to stop the U.S. Olympic Committee from forbidding Tom Waddell, founder of the Gay Olympics (now the Gay Games), from "polluting" their brand. Since Mary was lead counsel on the case, the film is largely about her, and is dedicated to her and Tom. Shout out to Jonathan and Robert for winning a Frameline Films award.

Watch for it - coming soon to ....

Law professors debate Prop 8

Law professors are having their annual conference this week in San Diego, and two panels have focused exclusively on Prop 8, especially the post-election challenge (which I've discussed here).

The panel this morning was terrific, especially interesting because each panelist presented a distinctive point of view. (Kudos to Rachel Moran of Berkeley for selecting the speakers). The panel going on now is also excellent; it's more philosophically coherent: all supporters of lgbt rights and of the challenge to Prop 8.

Starting with the morning panel --

Bill Eskridge (Yale) argued that the Prop 8 campaign mobilized some of the very old anti-gay tropes, in a kinder, gentler version - for example, that it drew on the theme of a predatory gay focus on children in its arguments about how legalized same-sex marriage would lead to the "teaching" of homosexuality to schoolchildren.

Nancy Polikoff (AU) argued, as she does in her book, that the focus on same-sex marriage has narrowed the scope of a campaign against injustice in family law because it not only continues, but reinforces, the history of drawing a line based on marriage, rather than based on whether marriage serves the function of that particular law - e.g. whether benefits designed to compensate for loss of income should be based on marital status or on whether there was actually financial interdependency between the two people.

Bruce Cain (Poli Sci/Berkeley) expressed concern that the kind of majoritarian lock-out of minority rights represented by Prop 8 feeds a political tendency to allow only concepts of rights supported by a majority. He argued that there should be a distinction between popular adoption of constitutional changes that reform institutional aspects of government, which should be easier to allow popular opinion to bypass the legislature, and changes that redefine individual liberties, especially as to minorities, which should be required to go through a more cumbersome set of steps.

I'm going to exercise my editorial license to focus on those three speakers and the cross comments and questions they triggered. An audience member questioned whether Professor Cain's distinction between individuals and institutions wouldn't turn out to be a Maginot Line, simply creating possibilities, for example,  for changing the law of institutions like the judiciary in ways that would have the purpose and effect of truncating individual rights. Another panelist, Steve Smith (San Diego) argued that the Prop 8 supporters' view that legalizing marriage would lead to legitimization of homosexuality in schools was not simply paranoid or a resurgence of old stereotypes, because in fact schools do, and are supposed to, transmit values. The fifth panelist, Gerald Rodriguez (Texas) predicted that there was virtually no chance that the California Supreme Court would invalidate Prop 8, prompting Eskridge to note that this court had a history of reversing the burden of political inertia on stigmatized groups.

There is also a panel discussion happening as I write.  Katherine Darmer (Chapman) spoke movingly of her experiences opposing Prop 8 and organizing legal support for the challenge, as well as the psychological impact on her lgbt students of Prop 8's passage. Erwin Chemerinsky (dean of Cal-Irvine Law) described the amendments/revisions distinction and the arguments raised by AG Brown. He made clear his agreement with the arguments in the briefs filed by the Prop 8 challengers. Cliff Rosky (Utah) addressed the question of political powerlessness in the assessment of whether sexual orientation should be considered a suspect classification. He argued that if a classification is suspect because of its disconnect to legitimate criteria, then that characteristic should be suspect forever, regardless of where on the political power spectrum a group falls at a given moment. 

Bill Eskridge, also a member of the second panel, focused on constitutional theory and how Prop 8 relates to different approaches to constitutional interpretation (textual, original meaning, and common law constitutionalism, ie developed by reasoning from precedent and analogy). He also analyzed the relationship to legal process theory, i.e. asking which institutions should perform which functions, or the Ely representation reinforcement analysis, or the critique that direct democracy lacks the benefits of deliberative process for important questions.  He used the opportunity to criticize the Tushnet/Ackerman theory of popular constitutionalism. Wasn't Prop 8 an example of a popular constitutional moment? Eskridge criticized the channeling of constitutionalism through only one institutional structure, and endorsed a process for popular amendment like the one in Massachusetts, which requires two successive votes by the legislature to send an amendment to the voters, thus allowing multiple institutions to weigh in and providing for deliberation and feedback over the course of the process.

What's safe to conclude?  No one has a clue what the CA Supreme Court is going to do with the Prop 8 challenge. That's not surprising, because there simply is no body of precedent that is directly on point and that clearly favors one side rather than the other, on the amendment/revision distinction. In my view, the Prop 8 challengers have the better structural and purposive analysis.  But it's going to be razor thin ... at best.