San Francisco Chronicle report on two Massachusetts cases challenging the federal DOMA

12/1/09 SF Chronicle:

In Gill v. Office of Personnel Management [No. 1:09-cv-10309-JLT, (U.S.Dist.Ct., D. Mass.)], plaintiffs challenge the section of the federal DOMA that limits federal marriage benefits, rights and protections to heterosexual couples. (Here are the November 17th filings by plaintiffs' counsel, Gay and Lesbian Advocates and Defenders.) Chronicle reporter Bob Egelko focuses on two central disputes in the case, but in passing considers a third.

First, plaintiffs claim that the federal government has no legitimate reason to impose such disproportionate burdens on married same-sex couples. Obama's Department of Justice (DoJ) acknowledges that the law discriminates and seeks its repeal. But DoJ defends it as a reasonable means to keep "the federal status quo while preserving the ability of states to grant marriage rights to same-sex couples." Second, plaintiffs claim that the federal government has intruded upon the exclusive authority of states to define marriages, while DoJ argues that DOMA leaves it up to each state to determine who may marry.

Almost as an afterthought, Egelko references another case [Commonwealth of Massachusetts v. U.S. Dept. Health and Human Services, Case No. 1:09-cv-11156-JLT (U.S.Dist.Ct., D. Mass.)], in which the state "says it is being forced by federal law to become an accomplice to discrimination," contrary to its own marriage-equality law.

Egelko relies on law professor Calvin Massey to address another question. This is whether discrimination based on sexual orientation warrants the strictest standard of constitutional review, and, if so, whether it can be justified under that standard:

Except for laws that discriminate based on such categories as race, sex or religion, Massey noted, the [U.S. Supreme C]ourt has allowed Congress to treat groups differently as long as lawmakers had a conceivable legitimate reason to do so. He said the government's argument in this case would probably pass that test. But Massey said the Supreme Court has indicated that it will take a closer look at laws aimed against homosexuals, in its 1996 ruling [Romers v. Evans, 517 U.S. 620 (1996)] overturning a Colorado law that prohibited cities and counties from adopting gay rights measures and a 2003 decision [Lawrence v. Texas, 539 U.S. 558 (2003)] striking down anti-sodomy laws. If the high court takes up the Massachusetts case, he said, "my prediction is that (the administration's) justification will be treated with some skepticism."

Legal commentary on the Iowa Supreme Court's decision to overturn the state's statutory ban on same-sex marriage

I summarize the ruling here , and Brisbane family law practitioner Stephen Page summarizes it here. New York Law School Professor Arthur Leonard provides his analysis here.

Press Comments: Impact in California and West Virginia

04/04/09 Washington Post:

"Justices look at opinions from other states," said Jennifer C. Pizer, the national marriage project director for Lambda Legal, which brought the Iowa case. "There's a significant likelihood that [the decision] will influence other states, like California."

04/03/09 NY Times:

Camilla Taylor, a senior staff lawyer for Lambda, said the Supreme Court ruling in a way was merely "vindicating quintessential Iowa values," namely, a commitment to families. That this battle was being waged in Iowa, Ms. Taylor said, would have a "transformative effect" not just on the Midwest, but elsewhere.

"The fact that it's here in some way highlights the inevitability of this all," she said.

04/04/09 Palm Springs Desert Sun:

Shannon Minter is legal director of the National Center for Lesbian Rights (NCLR), and participated in the Prop. 8 litigation oral arguments. NCLR filed an amicus brief in the Iowa case. This article produces a statement from NCLR's press release:

"The eyes of California and the world are now on the California Supreme Court, which must determine whether equal protection means equal, and whether Californians will continue to share that equality in the freedom to marry. We hope the California Supreme Court will uphold the principle of equality, just as the Iowa Supreme Court has done.”

04/03/09 Liberty Counsel press release:

Mathew Staver is founder of Liberty Counsel and Dean of Liberty University School of Law. He filed motions to intervene and amicus briefs in the Prop. 8 litigation and the Varnum case. In his press release, he said:

"The definition of marriage, which throughout history has been defined as a union of one man and one woman, is not discriminatory. Maintaining the definition of marriage does not deprive anyone of the fundamental right to marry. Laws may properly restrict marriage of same-sex couples just as the law may forbid incestuous or polygamous marriages."

He also told the Washington Post:

"The Iowa Supreme Court has become a proselytizing engine of radical social change. Untying the knot that holds together traditional marriage will unravel the family, destabilize the culture and harm children."

04/04/09 SF Chronicle:

UC Hastings School of Law Professor Calvin Massey said, ""I think you're likely to see more victories in judicial chambers for advocates of same-sex marriage. The judiciary in general is more liberal on this issue than the population as a whole."

04/04/09 LA Times:

University of Southern California law professor David Cruz told the LA Times that the ruling could influence the California Supreme Court's decision on Prop. 8 "if there are justices who are still wavering one way or another."

"It shows them that a Republican appointee writing for a unanimous court in a not decidedly liberal state takes the view that there are basic constitutional guarantees that are especially important for the judiciary to enforce," Cruz said.

"The opinion is very, very careful to lay out its understanding of the role of the judiciary at some length and to defend that role," Cruz said, adding that the ruling dealt heavily with "the importance of an independent judiciary enforcing constitutional rights even if they might be unpopular with a large majority."

04/03/09 West Virginia MetroNews:

Speaking about a proposed constitutional ban on same-sex marriage, [attorney] Steven Skinner, with Fairness West Virginia says what happens in Iowa will stay in Iowa. "This is an Iowa decision on Iowa law based on the Iowa Constitution," Skinner said on Friday's MetroNews Talkline. "It really has no effect in West Virginia and we need to make sure that we stay calm about what this means because it really doesn't mean anything in West Virginia."

Source of MetroNews reference: 04/03/09 ADF Alliance Alert

04/04/09 Christian Science Monitor:

"The strongest argument for traditional marriage has always been anchored in faith," says Douglas Kmiec, a law professor at California's Pepperdine University and an opponent of same-sex marriage. "The issue is one that affects every part of the country and it is a topic that requires the balancing of claims of equality and religious freedom," he adds.

He argues that legislatures need to carve out explicit religious exemptions. These would ensure that legal protections for gay equality do not eventually impact churches' tax benefits, hiring practices, and public activities. He and others have also mooted removing the state from marriage altogether.
Blog Posts

04/04/09 NY Times Room for Debate Blog:

"The Iowa Supreme Court struck down as unconstitutional the state’s 1998 law limiting marriage to a man and a woman. Iowa now becomes the third state in the country, along with Massachusetts and Connecticut, to allow gay marriage. The decision is considered groundbreaking because no Midwestern state has permitted same-sex marriage, and at least six in the region have adopted constitutional amendments banning gay marriage.

"We asked Kenji Yoshino and Robert F. Nagel, two constitutional law scholars who’ve written about this issue, to give us their thoughts on the decision and the language of the court."

04/04/09 Sexual Orientation and the Law Blog:

"Professor Pat Cain, who helped organize a law and history professors' amicus brief in Varnum, writes in today's Iowa City Press-Citizen that unlike the California constitution, Iowa's constitution wisely does not allow the people to amend the constitution directly. Iowa's constitution, as the Iowa Supreme Court emphasized today, protects our 'republican form of government.' Under this form of government, the legislative branch enacts legislation and the courts serve as a check on that legislative power to protect individual freedoms and ensure equal treatment."

04/09/09 Gender & Sexuality Law Blog:

Law professor Katherine M. Franke is Director of Columbia Law School's Gender & Sexuality Law Program. She writes:

The court also makes every effort to situate the marriage case within the context of local Iowan values. Whether it was a refusal to recognize the legitimacy of slavery in 1839, a recognition that racial segregation violated the Iowa Constitution in 1873 long before the U.S. Supreme Court did in 1954, or being the first state to grant women the right to practice law in 1869, Iowans have had their own strong sense of justice and fairness, and as the court noted, “in each of these instances, our state approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the ‘absolute equality of all’ persons before the law as ‘the very foundation principle of our government.’”


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If Prop. 8 is upheld, what--and who--is next?

03/20/09 Boston EDGE:

UC Hastings School of Law Professor Calvin Massey told EDGE that if the California Supreme Court upholds Prop. 8, "I don’t think there is anything that could stop an amendment that would preclude same-sex couples from adopting, for example, or any other horribles. The problem here is that there isn’t federal law (protecting) same-sex marriage or (sexual) orientation."

Prop. 8 hinges on who decides: judges or voters

11/19/08 SF Chronicle:

According to Ethan Leib, a constitutional law professor at UC Hastings, it is "very hard to argue that [Proposition 8, a] narrowly written constitutional amendment changes the fundamentals of our state government ... [Because California has a] "flexible and inviting (constitutional) amendment procedure ...the people, rather than the judges, get to say what the Constitution means."

Vikram Amar, a constitutional law professor at UC Davis, adds that if the California Supreme Court rules that Proposition 8 is a constitutional revision, such a ruling could "lead us down a slippery slope." If Proposition 8 is a constitutional revision because unpopular minorities require constitutional protection from majority rule, then the same argument could apply to criminal defendants.

Former California Supreme Court Justice Joseph Grodin said that "You shouldn't be able to take away those [fundamental] rights [of a minority] simply by putting another measure on the ballot and having a majority vote."

In 1978, voters passed Proposition 7, restoring the dealth penalty and declaring that the death penality is not cruel and unsual punishment. In People v. Frierson, 25 Cal. 3d 142 (1978), the California Supreme Court upheld Proposition 7, despite its 1972 ruling that the death penalty is cruel and unsual punishment. UC Hastings Law Professor Calvin Massey said, "I can't think of any more fundamental right than to not have my government put me to death. That was found to be an amendment, not a revision."

California Prop 8 Aftermath: Strauss v. Horton, the State Court Challenge

11/06/08 The Faculty Lounge: UC Hastings School of Law Professor Calvin Massey doubts that Strauss v. Horton petitioners will convince the Court that Proposition 8 is a constitutional revision:

"The contention of the Prop 8 opponents in Strauss v. Horton is essentially that an elimination of a judicial intepretation of California's equal protection guarantee works such a fundamental change in the constitutional structure than it can only be accomplished by revision. Yet, Frierson and Crawford upheld initiatives that did just that. (Crawford did so at most by implication.) The Prop 8 opponents distinguish both cases (the Frierson change applied to all Californians, Prop 8 only applies to gays and lesbians; Crawford only involved a remedy), but I am not convinced by either attempt to distinguish these cases. Raven involved a complete abdication of constitutional independence; Prop 8 is a specific limit on the intepretation of California's equal protection guarantee but otherwise leaves California courts free to do what they have always done in interpreting the state constitution. "

Massey concludes that "[f]or better or worse (no pun intended), this is an issue that ultimately must be fought out in the context of the federal Constitution. ."