California Supreme Court Takes Up Proposition 8
Transcription
California Supreme Court Takes Up Proposition 8
THE CALIFORNIA SUPREME COURT Takes Up Proposition 8 Nina Schuyler S ix months after the California Supreme Court issued its groundbreaking ruling, striking down the state’s ban on same-sex marriage, the court has taken up the case again, this time through the lens of Proposition 8. Narrowly approved by 52 percent of voters in November, Prop 8 repealed the court’s May 2008 decision, eliminating the fundamental right of marriage for gay and lesbian citizens. Immediately after Prop 8’s passage, three lawsuits were filed, and in November, the court agreed 6–1 to hear the matter, with Justice Joyce L. Kennard dissenting. This time the fundamental issue before the court is whether Prop 8 is an amendment or a revision to the state constitution, though Attorney General Jerry Brown has presented the argument that Prop 8 is unconstitutional, and as a result, the amendment/revision analysis is moot. REVISION OR AMENDMENT? Changes to the state’s constitution can be made in two ways: through a revision, which is a broad, comprehensive change to the constitution, or an amendment. Unlike amendments, which can qualify for the ballot with signatures on initiative petitions, a revision requires a more deliberative process. To be placed on the ballot, a revision needs a two-thirds vote of the legislature or a state constitutional convention. 36 SPRING 2009 Whether a change is a revision or an amendment requires an examination of the quantitative and qual i tative effects of the measure on the con sti tution. “Unfortunately,” says BASF past presi dent Therese M. Stewart, chief deputy city attorney for the San Francisco city attorney’s office, “there isn’t more specific controlling language in the constitution or case law as to what, exactly, constitutes a revision or an amendment.” Since the 1890s, there have been only nine revision cases . “The case before the court is one of first impression,” says Joseph R. Grodin, professor of law, UC Hastings College of the Law, and former California Supreme Court justice. “I will not dare to guess what the court will do.” Opponents of Prop 8 are essentially making a structural argument, says Grodin, directing the court to consider the structure of the state’s constitution and its role in protecting individual and minority rights. The proponents of Prop 8, on the other hand, argue there is no precedent for drawing the line where the opponents suggest. In its brief against Prop 8, the City and County of San Francisco, along with fourteen other cities and counties and seven married couples, relies heavily on a 1990 case, Raven v. Deukmejian, in which the court held an initiative amendment was a revision and thus invalidated the initiative. That case involved Proposition 115, which would have limited the rights of criminal defendants to those guaranteed by the federal Constitution. The court held the measure’s fatal flaw was its qualitative effect on the constitution: Prop 115 required the state court’s blind obedience to the U.S. Supreme Court. “Like Prop 115,” says Stewart, “Prop 8 is a qualitative revision to the state’s constitution. Prop 8 involves a provision that deprives a group, which was held by the Supreme Court in May to be a Therese M. Stewart suspect class under equal protection, of rights that are fundamental under privacy and liberty,” she says. “If Prop 8 is an amendment legitimately permitted to happen by simple majority vote, then any decision by the court with respect to the constitutional rights of a minority would be choice,” wrote Chief Justice Ronald George in the 121page majority opinion. The constitution “properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as opposite-sex couples.” The majority opinion stated any law that discriminates on the basis of sexual orientation is constitutionally suspect, just as laws that discriminate by race or gender. The Bar Association of San Francisco, along with more than forty other bar organizations and civil rights groups, filed an amicus curiae letter in December, asking the court to hear the matter, citing many of the concerns raised in the San “If the court doesn’t have the last word, there is no protection because majorities can be formed around prejudice and passion and stirred into Therese M. Stewart states of hostility and hate.” subject to being overturned by a simple majority vote. That is dramatically different from what the founders of the federal Constitution and voters when they revised the state constitution conceived of the judiciary’s role. If the court doesn’t have the last word, there is no protection because majorities can be formed around prejudice and passion and stirred into states of hostility and hate.” In May, the court held that the constitutional guarantees of personal privacy and autonomy protect “the right of an individual to establish a legally recognized family with the person of one’s Francisco city attorney’s brief. BASF’s brief was one of a handful of briefs accepted to be heard by the court. “At the end of the day, Prop 8 is a discriminatory act against a community that has been mar ginalized,” says Russell S. Roeca, BASF’s president, cochair of BASF’s Marriage Fairness Task Force, and a partner at Roeca Haas Hager LLP. California has more than 100,000 households headed by gay couples, about a quarter with children, according to 2000 census data. THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 37 THE CALIFORNIA SUPREME COURT Takes Up Proposition 8 Nina Schuyler S ix months after the California Supreme Court issued its groundbreaking ruling, striking down the state’s ban on same-sex marriage, the court has taken up the case again, this time through the lens of Proposition 8. Narrowly approved by 52 percent of voters in November, Prop 8 repealed the court’s May 2008 decision, eliminating the fundamental right of marriage for gay and lesbian citizens. Immediately after Prop 8’s passage, three lawsuits were filed, and in November, the court agreed 6–1 to hear the matter, with Justice Joyce L. Kennard dissenting. This time the fundamental issue before the court is whether Prop 8 is an amendment or a revision to the state constitution, though Attorney General Jerry Brown has presented the argument that Prop 8 is unconstitutional, and as a result, the amendment/revision analysis is moot. REVISION OR AMENDMENT? Changes to the state’s constitution can be made in two ways: through a revision, which is a broad, comprehensive change to the constitution, or an amendment. Unlike amendments, which can qualify for the ballot with signatures on initiative petitions, a revision requires a more deliberative process. To be placed on the ballot, a revision needs a two-thirds vote of the legislature or a state constitutional convention. 36 SPRING 2009 Whether a change is a revision or an amendment requires an examination of the quantitative and qual i tative effects of the measure on the con sti tution. “Unfortunately,” says BASF past presi dent Therese M. Stewart, chief deputy city attorney for the San Francisco city attorney’s office, “there isn’t more specific controlling language in the constitution or case law as to what, exactly, constitutes a revision or an amendment.” Since the 1890s, there have been only nine revision cases . “The case before the court is one of first impression,” says Joseph R. Grodin, professor of law, UC Hastings College of the Law, and former California Supreme Court justice. “I will not dare to guess what the court will do.” Opponents of Prop 8 are essentially making a structural argument, says Grodin, directing the court to consider the structure of the state’s constitution and its role in protecting individual and minority rights. The proponents of Prop 8, on the other hand, argue there is no precedent for drawing the line where the opponents suggest. In its brief against Prop 8, the City and County of San Francisco, along with fourteen other cities and counties and seven married couples, relies heavily on a 1990 case, Raven v. Deukmejian, in which the court held an initiative amendment was a revision and thus invalidated the initiative. That case involved Proposition 115, which would have limited the rights of criminal defendants to those guaranteed by the federal Constitution. The court held the measure’s fatal flaw was its qualitative effect on the constitution: Prop 115 required the state court’s blind obedience to the U.S. Supreme Court. “Like Prop 115,” says Stewart, “Prop 8 is a qualitative revision to the state’s constitution. Prop 8 involves a provision that deprives a group, which was held by the Supreme Court in May to be a Therese M. Stewart suspect class under equal protection, of rights that are fundamental under privacy and liberty,” she says. “If Prop 8 is an amendment legitimately permitted to happen by simple majority vote, then any decision by the court with respect to the constitutional rights of a minority would be choice,” wrote Chief Justice Ronald George in the 121page majority opinion. The constitution “properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as opposite-sex couples.” The majority opinion stated any law that discriminates on the basis of sexual orientation is constitutionally suspect, just as laws that discriminate by race or gender. The Bar Association of San Francisco, along with more than forty other bar organizations and civil rights groups, filed an amicus curiae letter in December, asking the court to hear the matter, citing many of the concerns raised in the San “If the court doesn’t have the last word, there is no protection because majorities can be formed around prejudice and passion and stirred into Therese M. Stewart states of hostility and hate.” subject to being overturned by a simple majority vote. That is dramatically different from what the founders of the federal Constitution and voters when they revised the state constitution conceived of the judiciary’s role. If the court doesn’t have the last word, there is no protection because majorities can be formed around prejudice and passion and stirred into states of hostility and hate.” In May, the court held that the constitutional guarantees of personal privacy and autonomy protect “the right of an individual to establish a legally recognized family with the person of one’s Francisco city attorney’s brief. BASF’s brief was one of a handful of briefs accepted to be heard by the court. “At the end of the day, Prop 8 is a discriminatory act against a community that has been mar ginalized,” says Russell S. Roeca, BASF’s president, cochair of BASF’s Marriage Fairness Task Force, and a partner at Roeca Haas Hager LLP. California has more than 100,000 households headed by gay couples, about a quarter with children, according to 2000 census data. THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 37 “If the initiative had said, there will be no equal protection clause in the constitution, most people would say the majority can’t do that,” says James M. Finberg, chair of the Legal Committee for the Marriage Fairness Task Force and a partner at Altshuler Berzon LLP. “In a sense this is exactly what Prop 8 does.” In the Yes on 8 brief, Kenneth Starr, former Whitewater special prosecutor and dean of brief and argue whether Prop 8 violates the separation-of-powers doctrine under the state constitution. Proponents of Prop 8 state in their brief, “Proposition 8 does nothing to change the constitutional powers of the several branches of government. It in no way deprives the judiciary of its role as the final and ultimate (government) expositor of what the Constitution means. It NO ON 8 END DISCRIMINATION Pepperdine University Law School (he has declined media interviews), writes, “Proposition 8 is simple. It addresses a single nonstructural question. . . Quantitatively, it is brief (14 words), simple, and narrow; it neither deletes nor alters the texts of other constitutional provisions.” Qualitatively, “[I]t does not involve a change in the basic plan of California government, i.e., a change in its fundamental structure or the foundational power of its branches, much less far reaching changes in the nature of California’s basic governmental plan. . . . It does nothing more than restore the definition of marriage to what it was and always had been under California law before June 16, 2008—and to what the people had repeatedly willed that it be throughout California’s history.” SEPARATION OF POWERS ARGUMENT When the Supreme Court agreed to hear the matter in November, it also asked the parties to 38 SPRING 2009 simply makes a substantive change in the Constitution, which the judiciary is now free to interpret, as it would any other constitutional provision.” IF VALID, IS THE LAW RETROACTIVE? If the justices decide Prop 8 is constitutional, there is the question of what happens to the 18,000 plus same-sex marriages performed between the court’s initial ruling in Marriage Cases and the passage of Prop 8. “That issue is a matter of trying to ascertain the intent behind the initiative measure based on the language of the ballot arguments,” says Grodin. To No on Prop 8 lawyers, the answer is clear: “The law in California is very clear that new laws do not operate retroactively, unless there is clear language in the law itself or clear evidence in extrinsic sources, such as ballot materials,” says Amy E. Margolin, director of litigation at Howard Rice Nemerovski Canady Falk & Rabkin, cocounsel to the City and County of San Francisco, who represents the seven couples in the case, pro bono. “Nothing in the text of Prop 8 or the ballot guide says it invalidates existing marriages and cancels them out.” Proponents of Prop 8 argue in their brief, “Proposition 8’s brevity is matched by its clarity. There are no conditional clauses, exceptions, exemptions, or exclusions: ‘Only marriage between a man and a woman is valid or recognized in California.’ . . . Its plain language encompasses both pre-existing and later-created same-sex (and polygamous) marriages, whether performed in California or elsewhere. With crystal clarity, it declares that they are not valid or recognized in California.” STATE ATTORNEY GENERAL’S ARGUMENT When voters initially passed Prop 8, State Attorney General Jerry Brown said he did not believe the law was retroactive, so he would not invalidate the marriages that occurred between June 16 and November 5. In addition, he stated he planned to defend Prop 8, as the state’s chief attorney, but in December, in a surprise turnabout, he announced he would not. Instead he asked the court to overturn the measure, saying “Proposition 8 must be “In my view,” says Stewart, “this issue overlaps with the revision issue.” The brief of the City and County of San Francisco says, “There is no question that Proposition 8 infringes upon a core zone of judicial power, i.e., the power to have the final word on the inalienable rights of unpopular minority groups.” The brief cites Justice Kennard’s statements from Marriage Cases, “. . . and it is the particular responsibility of the judiciary to enforce those guarantees.” BASF’s amicus echoes that sentiment: “This encroachment on the Courts’ role offends the core principle of separation of powers that is embedded in our state’s Constitution.” THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 39 “If the initiative had said, there will be no equal protection clause in the constitution, most people would say the majority can’t do that,” says James M. Finberg, chair of the Legal Committee for the Marriage Fairness Task Force and a partner at Altshuler Berzon LLP. “In a sense this is exactly what Prop 8 does.” In the Yes on 8 brief, Kenneth Starr, former Whitewater special prosecutor and dean of brief and argue whether Prop 8 violates the separation-of-powers doctrine under the state constitution. Proponents of Prop 8 state in their brief, “Proposition 8 does nothing to change the constitutional powers of the several branches of government. It in no way deprives the judiciary of its role as the final and ultimate (government) expositor of what the Constitution means. It NO ON 8 END DISCRIMINATION Pepperdine University Law School (he has declined media interviews), writes, “Proposition 8 is simple. It addresses a single nonstructural question. . . Quantitatively, it is brief (14 words), simple, and narrow; it neither deletes nor alters the texts of other constitutional provisions.” Qualitatively, “[I]t does not involve a change in the basic plan of California government, i.e., a change in its fundamental structure or the foundational power of its branches, much less far reaching changes in the nature of California’s basic governmental plan. . . . It does nothing more than restore the definition of marriage to what it was and always had been under California law before June 16, 2008—and to what the people had repeatedly willed that it be throughout California’s history.” SEPARATION OF POWERS ARGUMENT When the Supreme Court agreed to hear the matter in November, it also asked the parties to 38 SPRING 2009 simply makes a substantive change in the Constitution, which the judiciary is now free to interpret, as it would any other constitutional provision.” IF VALID, IS THE LAW RETROACTIVE? If the justices decide Prop 8 is constitutional, there is the question of what happens to the 18,000 plus same-sex marriages performed between the court’s initial ruling in Marriage Cases and the passage of Prop 8. “That issue is a matter of trying to ascertain the intent behind the initiative measure based on the language of the ballot arguments,” says Grodin. To No on Prop 8 lawyers, the answer is clear: “The law in California is very clear that new laws do not operate retroactively, unless there is clear language in the law itself or clear evidence in extrinsic sources, such as ballot materials,” says Amy E. Margolin, director of litigation at Howard Rice Nemerovski Canady Falk & Rabkin, cocounsel to the City and County of San Francisco, who represents the seven couples in the case, pro bono. “Nothing in the text of Prop 8 or the ballot guide says it invalidates existing marriages and cancels them out.” Proponents of Prop 8 argue in their brief, “Proposition 8’s brevity is matched by its clarity. There are no conditional clauses, exceptions, exemptions, or exclusions: ‘Only marriage between a man and a woman is valid or recognized in California.’ . . . Its plain language encompasses both pre-existing and later-created same-sex (and polygamous) marriages, whether performed in California or elsewhere. With crystal clarity, it declares that they are not valid or recognized in California.” STATE ATTORNEY GENERAL’S ARGUMENT When voters initially passed Prop 8, State Attorney General Jerry Brown said he did not believe the law was retroactive, so he would not invalidate the marriages that occurred between June 16 and November 5. In addition, he stated he planned to defend Prop 8, as the state’s chief attorney, but in December, in a surprise turnabout, he announced he would not. Instead he asked the court to overturn the measure, saying “Proposition 8 must be “In my view,” says Stewart, “this issue overlaps with the revision issue.” The brief of the City and County of San Francisco says, “There is no question that Proposition 8 infringes upon a core zone of judicial power, i.e., the power to have the final word on the inalienable rights of unpopular minority groups.” The brief cites Justice Kennard’s statements from Marriage Cases, “. . . and it is the particular responsibility of the judiciary to enforce those guarantees.” BASF’s amicus echoes that sentiment: “This encroachment on the Courts’ role offends the core principle of separation of powers that is embedded in our state’s Constitution.” THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 39 invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification,” Brown told newspapers. In response to Brown’s unique argument, Starr states in his brief, Brown “is inviting this court to declare a constitutional revolution. His extraconstitutional vision is one of unprecedented judicial hegemony, a sweeping power vested in the least-democratic branch that overrides the precious right of the people to determine how they will be governed.” The City and County of San Francisco brief says Brown’s argument supports their position that Prop 8 is a revision, not an amendment. “When you deny fundamental rights to a suspect class, you are changing equal protection at its core,” says Stewart. “The equality provision underlies the fabric of our constitution.” GOING FORWARD “For many years, equality and diversity in civil rights have been a mission of BASF,” says Roeca. With that legacy in mind, Roeca says the Marriage Fairness Task Force will continue to meet. Already the task force has convened with leaders from religious, lesbian, gay, bisexual, transsexual, and black communities, discussing how to move forward. “I’m optimistic,” he adds. Roeca points to the successes of the task force, which raised more than $300,000 from nearly 250 lawyers and firms for the No on Prop 8 campaign, secured an almost unanimous vote of the Conference of Delegates of California Bar Associations to support a resolution opposing Prop 8, organized the most far-reaching coalition of bar organizations against Prop 8, and created a presence for its message through media outlets. As part of this latter effort, James Brosnahan, a partner at Morrison & Foerster, wrote editorials for the San Francisco Chronicle and did a YouTube appearance. “I fully support the No on Prop 8 effort. I have no doubt this issue will get turned around,” says Brosnahan. “The question is when.” The justices heard the cases on March 5 and are required to rule within ninety days. Nina Schuyler is a lawyer whose first novel, The Painting, was published in 2004. She is currently working on her second novel. She can be reached at [email protected]. An expansive outlook: What the legal community expects from a law school devoted to the big picture. Vibrant, engaging graduates with perspectives for today’s legal landscape. www.CaliforniaWestern.edu NEW MEMBER BENEFIT DISCOUNTED SUBSCRIPTION THROUGH BASF’S MEMBER ADVANTAGE PROGRAM BASF members can now subscribe to the San Francisco Business Times for 15% off published On January 14, 2009, BASF, along with forty other bar associations and legal organizations from across the state, filed an amicus brief with the California Supreme Court in support of the petitioners asking to overturn Proposition 8. The brief stated, “Proposition 8 would substantially alter California’s ‘preexisting constitutional scheme’ in two important aspects. Proposition 8 would radically change the definition of a ‘fundamental right’ as one enjoyed by all individuals to one enjoyed by some, as decided by the majority of voters. And Proposition 8 would strip the courts of their ability to enforce the guarantee of equal protection with respect to a fundamental right belonging to a protected class. This en croachment on the courts’ role offends the core principle of separation of powers that is embedded in our State’s Constitution.” rates. The Business Times is the best source for up to date local San Francisco business news and resources. The subscription includes the 2009 and 2010 Book of Lists! To subscribe or get a four week free trial, call 415.288.4961 with your BASF ID. 40 SPRING 200938 FALL 2008 THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 41