Filed under: Briefs
Last Friday, Ernest Dronenburg, Jr., the San Diego Assessor/Recorder/County Clerk, filed a petition with the California Supreme Court seeking an order to halt marriages for same-sex couples in the state.
Marriage equality was returned to California on June 28, two days after the Supreme Court ruled the proponents of Proposition 8 did not have standing to defend the law in court, allowing a district court decision invalidating the law to go into effect. Nevertheless, the legal battles surrounding the law continue, as the Los Angeles Times reports:
Ernest J. Dronenburg Jr. argued that the court should halt weddings while it considers the argument that the federal court ruling should apply only to the two couples who sued over Proposition 8, as well as to the county clerks in Alameda and Los Angeles counties, where the couples live.
Dronenburg, 69, is an elected Republican whose office is in charge of issuing marriage licenses in San Diego County.
Dronenburg’s request comes on the heels of a petition filed with the state high court by ProtectMarriage, the group which sponsored Prop 8 during the 2008 election and worked to rescind marriage equality rights in the Golden State. In its filing, the ProtectMarriage argued that California Governor Jerry Brown lacked the constitutional authority to mandate county clerks to issue marriage licenses to same-sex couples–an argument that Dronenburg echoes in his petition.
In his filing, Dronenburg says that he is ”caught in the crossfire of a legal struggle over the definition of marriage” since he believes Prop 8 is still in effect but had been ordered by state officials to provide marriage licenses to same-sex couples.
Last week, the California Supreme Court denied the Prop 8 proponents’ request for an immediate stay prohibiting same-sex couples from obtaining marriage licenses while the new legal challenge makes its way through the state courts. Briefing on the larger issues of the case is scheduled to continue today and last through early August.
University of California, Irvine Professor Douglas NeJaime told the Los Angeles Times that Dronenburg’s filing essentially piggybacks on ProtectMarriage’s petition, although it differs in that it is being made by an government official who may be better equipped to demonstrate a constitutional injury than the proponents of the ballot measure. According to the Times, NeJaime predicts Dronenburg’s challenge will fail.
San Diego County’s majority Republican Board of Supervisors put distance between them and Dronenburg after the clerk’s court filing. ”The county clerk has acted independently on this matter,” board Supervisor Greg Cox told the Times. “No one else from the county was consulted or had any part of this court action, including the Board of Supervisors. The county’s position is and always has been that we, the county, will follow applicable law with regards to same-sex marriage.”
Dronenburg’s filing, via Scribd, is available below. (H/t to Kathleen and Equality Case Files)
The saga continues, at least for now: ProtectMarriage, the group behind Proposition 8, the 2008 constitutional amendment that banned marriage equality in California, is asking the California Supreme Court to order county clerks to stop issuing marriage licenses to same-sex couples. The Los Angeles Times reports:
Opponents of same-sex marriage asked the California Supreme Court on Friday to order county clerks to deny marriage licenses to same-sex couples, arguing that Gov. Jerry Brown lacked the authority to end enforcement of Proposition 8.
ProtectMarriage, the group that sponsored the 2008 ballot measure banning gay marriage, urged the state high court to act under a California constitutional provision that prohibits officials from refusing to enforce a law unless an appellate court has first determined the law is unconstitutional. There is no binding appellate ruling that says Proposition 8 is unconstitutional.
Legal experts predicted the California court would reject the challenge. Lawyers for the gay couples who fought Proposition 8 in federal court said they anticipated such an action and were prepared to respond to it. They said a state court may not interfere with a federal court’s decision.
According to the Times, the California Supreme Court customarily meets on Wednesdays to consider such requests, but could take action at any time to either deny the petition or seek written arguments.
ProtectMarriage also argues that the 2010 decision by U.S. District Court Judge Vaughn striking down Proposition 8 as unconstitutional–which became the final federal court say on the matter after the U.S. Supreme Court ruled the proponents of Prop 8 did not have standing to appeal the ruling–should not apply statewide.
The named defendants in that suit were the California governor, attorney general and the clerks of Alameda and Los Angeles counties. In its filing, ProtectMarriage posits that California’s other clerks were not affected by the ruling, which Walker ordered to apply to “all persons under the control or supervision of defendants.” ProtectMarriage argues that no state law gives the governor or attorney general supervisory powers over county clerks.
In interviews with the Los Angeles Times, former state Supreme Court Justice Carlos R. Moreno and Santa Clara University law professor Gerald Uelmen both expressed an opinion that the high court would reject ProtectMarriage’s challenge. In that case, the group could file a further challenge in a county superior court.
Andrew Pugno, a lawyer for the proponents of Prop 8, issued a statement today after the filing was submitted, according to the Sacramento Bee:
The man-woman definition of marriage, as passed by the voters, is still a valid part of our state constitution. Yet county clerks statewide are lawlessly defying that law by issuing gender-neutral marriage licenses. We are asking California’s Supreme Court to restore the rule of law and the public’s confidence in the integrity of the initiative process.
“This latest filing is utterly baseless. The Supreme Court of the United States has rejected the appeal from Judge Walker’s declaration that Proposition 8 violates the federal constitution and the injunction prohibiting state officials from enforcing it. The California Supreme Court itself has confirmed that, when they administer marriages, county clerks are “ state officers performing state functions and are under the exclusive jurisdiction of the state registrar of vital statistics.” Any county that defies the federal court’s injunction is at risk not only of contempt of court but also a lawsuit under the federal civil rights laws for which it would be liable for damages and the plaintiffs’ attorneys’ fees. Proponents’ latest effort to stop loving couples from marrying in California is a desperate and frivolous act.”
By Jacob Combs
Here’s to attorney Charles Cooper’s final Supreme Court brief on behalf of the official ballot proponents of Proposition 8 in defense of the law’s constitutionality. I sincerely hope it’s the last piece of his writing I ever have to read.
To be fair, Cooper is a very, very good lawyer. He has a way with words both in writing and during oral argument, as he demonstrated in December 2011 during the impassioned and histrionic conclusion to his appearance before the Ninth Circuit in the Prop 8 case (known at the Supreme Court as Hollingsworth v. Perry):
“If this Court says what they [the plaintiffs challenging Prop 8] urge you to say, this will be a signal and dark day in American jurisprudence.”
(In response to that remark, Judge Reinhardt, who would go on to pen the Ninth Circuit ruling invalidating Prop 8, responded wryly, “Thank you, Mr. Cooper. Well, let’s hope, however it comes out, that it won’t be a dark day.”)
As Cooper’s most recent Supreme Court brief demonstrates, though, the proponents of Prop 8 don’t really have any new arguments to make in defense California’s marriage equality ban. Cooper is left to rely instead on lawyerly twists and evasions in order to make the law look as though it supports the constitutionality of Prop 8. In light of this, Cooper’s plaintiffs–and the legal argument they’re trying to make–may have a tough day in court next Tuesday. (more…)
This piece is part of a three-part series examining the Obama administration’s Supreme Court brief arguing that California’s Proposition 8 violates the U.S. Constitution’s equal protection provisions. You can read Part 1 here and Part 2 here.
By Jacob Combs
Last week, the Obama administration filed a Supreme Court brief challenging the constitutionality of Prop 8 that included the so-called ‘eight-state solution.” California’s marriage equality ban, the brief argued, violates equal protection because California extends all of the rights and responsibilities of marriage to same-sex couples while withholding only the designation of ‘marriage’ to them.
As the brief pointed out, seven other states—Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island—have a similar legal scheme when it comes to marriage-like protections for same-sex couples. If California’s marriage equality ban is unconstitutional, the brief implicitly argued, then these other seven states’ bans likely are as well.
The end of civil unions?
Even amongst supporters of marriage equality, there is hardly a uniformity of opinion as to whether the eight-state solution would be a bold move forward or a Pyrrhic victory that could set back legal protections to for same-sex couples in other states. Some LGBT advocates worry that a Supreme Court ruling invalidating marriage-like civil union or domestic partnership laws as unconstitutional would dissuade legislators in more conservative states from supporting such laws for fear that they would be challenged in court and eventually lead to full marriage equality.
This fear is understandable, but probably less important than it initially appears. First off, as I’ve written before, civil union and domestic partnership laws could very well be subject to constitutional challenge pending a Supreme Court decision on the constitutionality of the Defense of Marriage Act (DOMA). As it stands right now, married same-sex couples are treated by the federal government the same as same-sex couples in civil unions or domestic partnerships—that is, none of these couples are provided any federal benefits. If DOMA is invalidated, though, civil union and domestic partnership laws would only provide couples with state benefits and not federal benefits, making them ripe for equal protection challenges under state or federal law.
Second, and perhaps more significantly, the pace of the marriage equality movement has accelerated so quickly that every single one of the states with marriage-like laws is currently considering a shift to full marriage equality. Legislative efforts are underway this year in Delaware, New Jersey, Illinois and Rhode Island. Lawsuits are pending in Hawaii, Nevada, New Jersey and Illinois. Oregon will likely consider a ballot initiative next year that would put marriage equality to a popular vote in the 2014 election.
Just as importantly, the attorney generals of Delaware, Illinois and Oregon all signed on to a friend of the court brief in the Prop 8 case arguing that the law “codifies the second-class status–for its own sake–of gays, lesbians, and their families” and writing that “[u]nder any standard of Equal Protection analysis, it cannot survive review.” (The attorney general of California filed her own brief arguing the law violates the Fourteenth Amendment.) Although the brief signed by Delaware, Illinois and Oregon does not explicitly make the claim that these states’ civil unions or domestic partnership laws are unconstitutional, the legal argument the brief makes against California’s laws could easily apply to the other states as well.
In several of the states that offer marriage-like legal protections, the path from civil unions or domestic partnerships to marriage equality has been especially speedy. Civil unions were first offered in Illinois and Rhode Island in 2011; in Hawaii, they were first offered in 2012. If anything, the introduction of these not-quite-marriage laws has only accelerated the push for full marriage equality by pointing out the ways in which anything less than equal marriage rights puts couples at risk of discrimination and prejudice.
To put it simply, it is becoming more and more evident that the marriage equality movement has moved past an inflection point where civil unions and domestic partnerships simply do not cut it anymore. A Supreme Court decision recognizing this would be more likely to help than hinder equality advocates—even in the most conservative states—by demonstrating that the separate but equal legal regimes in states like California and Nevada and Rhode Island distract from the real issue.
Same-sex couples should be treated equally when it comes to adoption, parenting rights and, yes, marriage. Civil unions and domestic partnerships were an important stop-gap measure that helped rectify (but only partially) the invidious discrimination same-sex couples faced. The time for such partial fixes has ended. As a nation, we are ready to debate full equality for same-sex couples—in fact, we have already been doing so for years. Solicitor General Donald Verrilli, Jr.’s Supreme Court brief demonstrates that President Obama understands the nation has reached this point. Through its seemingly narrow legal argument, the administration’s brief lays out a nuanced, strategic framework that could lead to nationwide marriage equality within the next decade.
This piece is part of a three-part series examining the Obama administration’s Supreme Court brief arguing that California’s Proposition 8 violates the U.S. Constitution’s equal protection provisions. You can read Part 1 here and Part 3 here.
By Jacob Combs
In a Supreme Court brief filed last week on behalf of the Obama administration, Solicitor General Donald Verrilli, Jr. argued that Proposition 8 violates the U.S. Constitution’s equal protection provisions. Specifically, Verilli pointed to California’s broad recognition of domestic partnership rights for same-sex couples to make his case that the constitutional amendment banning marriage equality in the Golden State should be invalidated because it treats two equivalent classes of individuals differently.
But Verrilli’s brief also included one important detail that could potentially have important ramifications for the eventual outcome of the case before the high court: California is not the only state in the union that has extended significant legal rights and obligations to same-sex couples.
The ‘eight-state solution’: A possible middle ground for a conservative Supreme Court
Verrilli notes in his brief that “[s]even other states provide, through comprehensive domestic partnership or civil union laws, same-sex couples rights substantially similar to those available to married couples, yet still restrict marriage to opposite-sex couples”: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. And even though it doesn’t explicitly say so, Verrilli’s brief clearly provides a framework for what is becoming known as the “eight-state solution”—a resolution to the Prop 8 case at the Supreme Court that would bring marriage equality to all eight states that currently provide marriage-like benefits to same-sex couples, but would leave marriage bans intact in the many other states where they are already on the books.
When viewed in this light, Verrilli’s seemingly narrow brief begins to open up, providing the Supreme Court an additional path by which it can strike down Prop 8 but keep most other marriage bans alive. Essentially, the reasoning for limiting such a ruling to only those eight states with civil union or domestic partnership protections would be that states whose laws and public policy do not recognize same-sex and opposite-sex couples as equals could rationally choose to provide different designations to those couples’ unions without violating equal protection.
A Supreme Court decision along these lines would likely be a compromise one that would hold that states which provide the rights of marriage to same-sex couples must also provide them the designation of marriage. In such a ruling, the Court could conceivably avoid the larger question of the constitutionality of marriage equality bans in general by focusing specifically on the manifest equal protection violation inherent in states with civil union or domestic partnership laws.
The true game-changer in Verrilli’s brief: Heightened scrutiny
An ‘eight-state solution’ decision could certainly resolve the constitutionality of Prop 8. But the central question of whether marriage equality bans are constitutional in any state would remain, and the Obama administration’s brief includes a ticking time bomb that could lay the groundwork for future legal challenges: heightened scrutiny.
Early on in Verrilli’s brief, the Solicitor General makes the case that laws which classify according to sexual orientation should be considered under heightened scrutiny, a more searching form of judicial review which places the burden of proof on the government as opposed to the individual and can only be cleared if the law is–as the Supreme Court has put it–”substantially related” to an “important governmental objective.”
If the Supreme Court took the administration’s position, brought marriage equality to the eight states with domestic partnership or civil union laws and used heightened scrutiny to make this case, the stage would be set for future litigation challenging marriage bans across the United States. Even if the Court declined to look into this issue in the Prop 8 case, the heightened scrutiny standard would open the door to future litigation in which the states that withhold marriage, parenting and adoption rights from same-sex couples would have to prove, as noted above, how such restrictions further an “important governmental objective.”
In all likelihood, they would be unable to do so, and another marriage equality case—probably out of one of the red states—would make its way to the Supreme Court, which would eventually establish marriage equality nationwide. In the meantime, however, district and circuit courts across the country would have the opportunity to grapple with the constitutionality not just of marriage bans, but of adoption bans, lack of employment protections and other issues related to LGBT rights—all under the banner of heightened scrutiny.
Because of these nuances, the Obama administration’s argument is in fact is not a narrow one, but rather a broad, expansive, dramatic advancement of legal protections for LGBT rights across the nation. The fact that Verrilli and Obama have managed to lay the foundation for such a watershed Supreme Court decision while simultaneously presenting the brief as specifically tailored to the facts of the Prop 8 case shows just how nuanced the president’s view of the marriage equality debate is.
Tomorrow, in Part 3 of this series, I’ll examine the effect that a Supreme Court ruling invalidating civil unions and domestic partnerships as unconstitutional could have on the future of the marriage equality movement in more conservative states.
This piece is part of a three-part series examining the Obama administration’s Supreme Court brief arguing that California’s Proposition 8 violates the U.S. Constitution’s equal protection provisions. You can read Part 2 here and Part 3 here.
By Jacob Combs
Last Thursday, Solicitor General Donald Verrilli, Jr.—writing on behalf of the Obama administration and reportedly at the direction of the president himself—filed a brief with the Supreme Court asserting that Proposition 8 violates the U.S. Constitution’s guarantee to equal protection under the law.
While Verrilli’s brief stopped short of a sweeping call for a constitutional right to marriage equality across the nation, the argument it does make is both judicious and full of dramatic implications. Tailored specifically to California, it presents a seemingly narrow argument that, in principle, could lead to the end of marriage bans across the country.
‘Particularly in those circumstances’: Verrilli (seemingly) opts for the narrow route
In order to lay the foundation of his constitutional argument against Prop 8, Solicitor General Verrilli begins his brief by emphasizing the broad legal protections that California continues to provide same-sex couples even after Proposition 8 took equal marriage away from them. “California law,” he writes, “provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts.” He then goes on to argue that it is because of these marriage-like statutory provisions that Prop 8 is so indefensible:
“Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest.”
The words ‘particularly in those circumstances’ are essential, and worth examining more closely. A few pages later, Verrilli uses a similar qualifier when discussing California’s parenting laws, which–again, despite Prop 8–recognize same-sex couples as equals to opposite-sex couples when it comes to parenting. “In that context,” he writes, “the exclusion of same-sex couples from marriage bears no substantial relation to any interest in promoting responsible procreation and child-rearing.” Once again, in this direct challenge to one of the central justifications for Prop 8′s constitutionality, the words ‘in that context’ are important.
LGBT advocates have been pressuring President Obama to weigh in on the Prop 8 case ever since the Supreme Court agreed to consider the law, calling it a natural move for the first sitting president to endorse marriage equality and include calls for LGBT equality in an inaugural address. But there was always the question of how far Obama would go. Would he make a case specific to California, the only state that has extended marriage rights to same-sex couples and then withdrawn them by a popular vote? Or would he make a broader case for nationwide marriage equality and a fundamental right to equal marriage under the U.S. Constitution, as more than 100 Republican officials did in another brief filed last week?
California law and Prop 8′s equal protection violation
At first blush, Verrilli’s brief might seem to show Obama’s preference for the first approach: it asserts that the Supreme Court “can resolve [the Prop 8] case by focusing on the particular circumstances presented by California law and the recognition it gives to committed same-sex relationships” (emphasis added). Even more importantly, it includes this powerful assessment of California’s views on the equality of same-sex and opposite-sex relationships:
“California has … recognized that same-sex couples form deeply committed relationships that bear the hallmarks of their neighbors’ opposite-sex marriages: they establish homes and lives together, support each other financially, share the joys and burdens of raising children, and provide care through illness and comfort at the moment of death.”
In other words, the Solicitor General’s brief argues that the state of California, through its law and public policy, has concluded that same-sex and opposite-sex couples are equal in their relationships, equal in their ability to parent, and therefore should be equal under the law. To denote these two types of equivalent relationships differently as Prop 8 does, Verrilli argues, is a violation of equal protection.
The majority of Verrilli’s brief is devoted to demonstrating exactly why Proposition 8 runs afoul of equal protection when viewed in light of California’s treatment of same-sex couples. Proposition 8, he writes, does nothing to encourage ‘responsible procreation’–as its proponents argue–because “California’s extension of parental and other rights to gay and lesbian couples … undermines any contention that Proposition 8 furthers an interest in responsible child-rearing.”
Verrilli also argues that the proponents are incorrect in saying that Prop 8 was an attempt to proceed with caution on matters of social policy, noting that the law “amends the California Constitution and permanently bars the legislature from altering the definition of marriage.” Just as importantly, he undermines the argument that Proposition 8 returned the issue of marriage equality to the “will of the people,” noting that the U.S. Supreme Court has held that “[t]he sovereignty of the people is itself subject to … constitutional limitations.”
Going beyond the justifications proposed by the Prop 8 proponents’ in their legal defense of the law, Verrilli points out that the purposes put forward for the law’s passage during the 2008 election also fail to save it from being struck down. Verrilli disputes the idea that Prop 8 can be defended as an attempt to maintain a ‘traditional’ definition of marriage, quoting the Iowa Supreme Court’s unanimous decision legalizing marriage equality in that state, which held that “[w]hen a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification … maintain[s] the classification.” He also flatly rejects the canard that Prop 8 would keep children from being taught about marriage equality in school, pointing to the Ninth Circuit’s observation that “[b]oth before and after Proposition 8, schools have not been required to teach anything about same-sex marriage.”
By marshaling the California-specific facts of Prop 8′s history, Verrilli makes a compelling case that “Proposition 8′s withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing … but instead of impermissible prejudice.” With this argument alone, the Supreme Court could invalidate Prop 8 in a narrow decision that would do nothing to affect the marriage laws of any other state. It goes without saying that Verrilli and Obama could have stopped their legal brief at this point. But in fact, the administration’s brief goes one very large step further.
Tomorrow, in Part 2 of this series, I’ll examine the more expansive ‘eight-state solution’ implied by one of the arguments in the Obama administration’s Supreme Court brief.