Thursday, May 28, 2009

I Was Wrong--Prop 8 Federal Lawsuit Filed

Despite my having said two days ago that "litigation is finished for the foreseeable future," Proposition 8 has already been challenged in federal court. In a short note I wrote later to one of our commenters, I had said I was reevaluating my position because I could envision some lawyer going to the federal court on the basis of 14th Amendment equal protection. My second guess was right.

Two same-sex couples who wanted to be married but missed the magical legal period between the California Supreme Court decision allowing gay marriage and the passage of Proposition 8 have hired attorneys and filed a lawsuit in federal court in San Francisco (where else?). And they didn't hire any run-of-the-mill ambulance chasers. The two attorneys representing the litigants are Theodore B. Olson and David Boies, both highly respected and brilliant attorneys. You may remember their names from the Supreme Court cases involving the Bush-Gore election. Olson and Boies were on opposite sides of those cases.

As the words from Alice in Wonderland go, this whole thing gets curiouser and curiouser. The suit alleges that basic liberties and equal protection of the laws have been denied in California to gay couples in violation of federal constitutional provisions in the 14th Amendment. Although the ultimate ruling of the Ninth Circuit Court of Appeals would be binding on the western states if it agrees with Olson and the federal trial judge, a Supreme Court ruling upholding the Ninth Circuit would be binding on all the states. But (there's always a "but" isn't there?), the Ninth Circuit Court is the undisputed champion of Supreme Court reversals.

Olson has requested a preliminary injunction against Proposition 8 which would prevent its implementation pending the final ruling of whatever court ends up being the final court to rule (the International Court at the Hague, maybe?). If the injunction is granted it is as clear as legal mud what that would mean for gay couples who want to get married, right now. Olson claims that his clients not only want the right to marry, but that they are acting on behalf of all gay couples everywhere.

Not confused enough yet? Let me take care of that. You would think that the first loud negative reaction to the suit would come from the proponents of Proposition 8. You would be wrong. The pro-Prop 8 people have not commented yet, either on the suit or their strategy. But prominent gay rights advocates, gay marriage groups and the Lambda Legal national gay rights organization have expressed views ranging from disagreement to outright anger at Olson and Boies for taking this legal action. Some gay rights advocates have called the action premature and poorly-advised. Others have expressed genuine fear that the action could backfire and ruin their attempt at convincing people, one state at a time, to pass legislation approving gay marriage. Those gay rights advocates have no argument with the intentions of the appellants, but say that the method chosen to advance those intentions is badly misguided and dangerous.

Here's the basic concept of what could happen if the case gets to the U. S. Supreme Court, and why gay rights advocates are fearful of the suit. One of the federal rules that the Supreme Court applies is that it will not rule on a federal right if the case was decided on "adequate independent state grounds." Marriage has always been considered as a state matter in which the United States Supreme Court is loath to intervene. Since it is unlikely that this (or an even more liberal) Supreme Court is likely to stick its neck out on the matter, it would mean that the California Supreme Court would be upheld, and the Ninth Circuit (as usual) reversed. That could be a devastating loss for the gay marriage movement that has been growing incrementally every day. Recognizing this reluctance on the part of the United States Supreme Court to rule on marriage, Lambda Legal had recently issued a three-page political strategy memo titled "Why the ballot box and not the courts should be the next step on marriage in California." I guess Olson and Boies didn't get the memo.

Curiouser and curiouser.


freedom21 said...

Deep stuff for six in the morning... Nice work, I already feel ahead of the curve :)

I have a question though. Assuming that the the Ninth Circuit gets reversed by the Supreme court, on what grounds would the Gay contingency go to the Hague. I am aware that, according the "International Human Rights Act" that "the enjoymnets of rights and freedoms...shall be secured with out discrimination on any ground" including a list typical statuses and any "other status". I assume that marriage will be classified as a right or freedom and sexuality will be the other status.

If this happens, is that an implied ratification/adoption of the laws of the Hague? This is scary to me because those laws seem much more narrow than our constitution as most of the articles "granting freedoms" are restricted by terms like "national security, territorial integrity or public safety". [whenever I hear the words public safety my mind drifts directly to the guilliotine]

freedom21 said...

Ignore the above. I was confused with my European Court of Human Rights and it's conventions and the UN/ICJ.

Also, if I learned one thing from my great Professor QC Christopeher Greenwood, only counrties can bring cases to the ICJ, so I guess there is no way that this case could end up there (barring some foreign national....oh dear, thats a stretch).

Writer X said...

If you can't get in through the door, look for a window? Alice in Wonderland has never been so interesting. Thanks for the update.

BevfromNYC said...

Law and Freedom21 - I don't find it curious at all. I'm just surprised it has taken this long for someone to file under "equal protection" especially in the case of matrimony. The long established laws based on equal protection that a marriage license in one state is valid in all states. Otherwise you would have to marry any every state in which you lived. This would have been a big boon for the wedding planners of America, but not practical. Conversely, you would have to divorce in every state in which you married – a big boon for matrimonial attorneys, but again, not practical. The moment one state allowed same sex marriage, under the equal protection amendment, that union should have to be recognized in all states. It is particularly interesting in the cases of same-sex divorces now reaching the courts.

AndrewPrice said...


Timing is everything (so if forum selection). Obviously anyone with standing can file, but I suspect that the activist groups have made a concerted effort to keep from filing until the make up of the Supreme Court changes. Nothing would be more disasterous for their movement than a Supreme Court decision that went against them -- it's very hard to get a new court to reconsider a prior one.

Freedom21, it's not clear how much foreign law our Supreme Court will accept. I know that the left advocates applying international law, but up to this point, the Court has resisted. It will apply any law required by Treaty -- because those are considered US law, but it has not reached for international principles in its decisions.

If it does, that will be a disaster of epic proportions for many unsuspecting people. Despite what we hear about in the media about international law coming often being left/liberal, most of it is actually crafted by blocks of third world countries with the intent of extracting economic benefits from richer countries.

SQT said...

When you start talking about the Hague, I know I'm out of my depth. But this should be interesting to follow. I'm not at all surprised that some pro-gay marriage groups are not happy about this. It seems like a classic case of jumping-the-gun.

Captain Soapbox said...

I think a lot of Americans would be shocked at some of the rulings or injunctions that some of the international courts could put on them. And as you've said the makeup of many of those august bodies is hardly what you'd consider to be supportive of real rights.

As for the actual lawsuit, which I did expect too just not this quickly, I think you're right if it goes to the Supreme Court anytime soon, even with Sotomayor on the bench I think the results wouldn't be what the anti-Prop 8 people would want.

LawHawkSF said...

Note re The International Court: My comment about the Hague was done tongue-in-cheek, but the readers here are obviously very savvy about how far our Supreme Court has gone in referring to foreign law to bend decisions. Death penalty cases have been particularly affected by the use of foreign sources to come to up with some odd results. "Referring" is not the same as "citing as authority," but don't be surprised to see the latter in the near future.

Andrew's comment about treaty enforcement is the one place that the Constitution allows "foreign" law to be cited directly as authority in decision-making, and even then there is a fine point at which the court must determine whether or not the treaty is "self-activating" before citing the treaty or foreign law in making the decision.

Bev: The Defense of Marriage Act ("DOMA") was passed by Congress in order to prevent "gay marriages" in one state from being enforced in another. There have been no serious challenges to this Congressional act so far, but there is serious doubt among legal writers (myself included) that the act would survive against a challenge on the "sister state" enforcement provisions of the Constitution. Olson's suit in California is the first to use the 14th Amendment "equal protection" argument in a federal court.

LawHawkSF said...

Commenterama Fans: I just want to point out to everyone that I am on California (Pacific Daylight Time) and many of you are on the east coast. When I am a little dilatory in responding to your comments, it's not that I'm ignoring you, it's just that while you're having your morning coffee, I'm still in bed dreaming about how many Supreme Court justices can dance on the head of a pin. LOL

Captain Soapbox said...

Aren't angels supposed to be the ones that dance on the head of a pin? Isn't that sort of contrary to the nature of a Supreme Court Justice? I would think any dreams about the SC would be more along the lines of a fiery limbo contest in Limbo, to see how looooow they can go...

*Leslie Nielson* And don't call me Savvy, or Shirley for that matter. LOL

LawHawkSF said...

Captain Soapbox: Shirley you jest.

BevfromNYC said...

Law, how dare you use such a specious excuse as "Pacific Daylight Time" as a defense for not responding the very second a comment is posted! I, for one, am shocked, I say SHOCKED, that you don't hang on my every word at the very moment I post! Sleep? You don't need no stinkin' sleep!

[I must be very serious, 'cause I used lots of exclamation points!!!]

BTW, who's Shirley?

LawHawkSF said...

Bev: I have been frantically working on setting my computer to issue audio alarms the moment you post. You will have to bear with me for awhile longer, since it took me two weeks just to figure out how to put italics in my comments. This could be a lengthy process. Unlike my son, who dreams in computer code, I still have the suspicion that this whole internet thing is nothing more than black magic.

LawHawkSF said...

I should have given a citation for "sister state enforcement" as it differs from 14th Amendment "equal protection."

Article IV, Sec 1 of the Constitution says that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Thus, "sister state enforcement." It is unclear to many of us how that clear statement of constitutional principle can be overcome by a simple act of Congress.

The 14th Amendment on the other hand does not address the specific issue of the "Acts" of the individual states, but rather the much broader issue of the rights of all citizens of every state and the United States as a whole and how those rights must be equally protected nationwide.

The equal protection of the laws provision leaves a great deal to chance since the Supreme Court has never declared marriage to be a constitutional right and has always left that as a matter for the individual states.

Full faith and credit, on the other hand, is bedrock constitutional principle, and many of us expected any federal gay marriage case to be based on that, combined with an attack on the constitutionality of the Defense of Marriage Act. The best explanation for Olson's choice of the 14th Amendment argument is that so far, no couple in a gay marriage state has moved to another state and demanded recognition of the marriage in a non-gay marriage jurisdiction.

BevfromNYC said...

Actually, Law, there are divorce cases pending in NY State as it pertains to a same sex marriage in Canada and Massachusetts. I believe the Canadian matter was resolved recently. The judge on the original Canadian divorce matter ruled against recognition, but it went to the appeals court and they saw no reason why NY State should not recognize their marriage for the purpose of adjudicating a divorce. Though NY does not recognize same sex marriage, there is a bill pending in the state Senate to grant same sex marriage rights.

And just as an interesting factoid: NY is the only state that does not grant no fault divorce.

LawHawkSF said...

Bev: Thank you for your very informative update. I should have said that no case in the United States has reached a sufficiently high appellate level as to be ready for appeal to the U. S. Supreme Court. I'm not entirely surprised to find that some cases have been filed, and even partially litigated. I must say that the California Prop 8 legal logic makes more sense to me than New York's recognition of a Canadian marriage in order to take jurisidiction of a divorce case. New York has no constitutional obligation to recognize a Canadian marriage which would not be valid in New York. The Massachusetts marriage at least fits the "full faith and credit" argument. But since nobody appealed it to the federal courts, it is case law (local precedent) only in New York for the time being.

I was unaware that New York had not accepted no fault divorce. But I'm guessing the locals have figured out some clever way around that. On the other hand, California community property law infected New York years ago. They just modified the rules a little bit, and called it "equity" domestic law.

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