The legal analysis is located from page 109 to page 136 of the ruling. Notably, Judge Walker based the ruling on several alternative grounds. The first is that Prop 8 violates the fundamental right to marry by prohibiting individuals from marrying the person of their choice (regardless of whether that person is of the same sex). Although this argument has had some success in other same sex marriage cases, it has normally failed because, in order to find a fundamental right that is protected by the Due Process clause of the 14th Amendment, courts have required that the fundamental right have historical support. In short, courts have generally ruled that same sex marriage has never been a historical right so it is therefore not a fundamental right. In contrast, opposite sex marriage has been historically protected, and therefore is a fundamental right.

The other grounds for the judge’s ruling are based on the Equal Protection Clause of the 14th Amendment. The first ruling is that Prop 8 discriminates on the basis of sexual orientation and that sexual orientation is a suspect classification requiring higher scrutiny. This is a great ruling, as if it is adopted then the entirety of the prohibitions against same sex marriage would fall in this country. Under the Equal Protection clause, a law that treats one group of people differently than another group of people is permissible so long as some rational reason for the distinction can be identified, as long as the classification is not a “suspect classification” such as race, gender, nationality or religion. If, however, the law treats people differently on the basis of a “suspect classification,” then heightened scrutiny is given to the law to make sure that the classification is truly based on legitimate governmental concerns and the law is closely tailored to address those concerns. No judge has ever held that a ban against same sex marriage has passed any form of heightened scrutiny. The science is just not there to support it; there are too many fantastic same-sex parents and too many horrible opposite-sex parents out there to disprove that prohibiting same sex marriage is substantially related to creating good environments for children, for instance. Personally, I feel like this is the strongest argument against the bans against same sex marriage. Of the judges that have ruled that bans on same-sex marriage are prohibited, this seems to be the most popular basis.

Judge Walker, however, went one step further, ruling that no rational basis that is legitimate supported Prop 8 at all. This argument has been successful with several judges over the years, but is not the most popular. Judge Walker made extensive findings of fact showing that the studies shoot down any conceivable rational basis for why opposite-sex marriage is superior to same-sex marriage and thus concluded that the only rational basis for Prop 8 is animosity towards same-sex couples, which in itself is insufficient to justify laws harming them.

I haven’t finished the entire opinion yet and I plan to do a more in-depth post on the opinion within the next week or so.

The pamphlet notes essentially three different ways that civil unions are inferior to marriage:

1) Recognition by Other States. Even if those in civil unions are afforded the same rights by the state granting the civil union as that state grants marriages, there is no guarantee that other states will treat foreign civil unions the same that those states would treat a foreign opposite-sex marriage. The pamphlet uses examples such as medical decision making, the ability to divorce, and spousal support provisions. Thus, if a same-sex couple entered into a civil union in New Jersey and subsequently honeymooned in Utah, and one of the partners became ill, Utah might not honor the civil union and allow the other partner to make medical decisions.

2) Treatment by the Federal Government. The pamphlet also notes how the federal government treats marriages differently than it does civil unions in areas such as taxation, Social Security and death benefits, and immigration. In fact, this is a very small sample of the benefits granted by marriage under federal law. The Government Accounting Office reported that “as of December 31, 2003, our research identified a total of 1,138 federal statutory provisions classified to the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges.” (pdf here).

3) Social Recognition. Finally, the pamphlet notes that people understand and respect the word “marriage,” but “[c]ivil unions are unfamiliar; people don’t understand them or know how to treat them.” Courts have also recognized this issue. See Kerrigan v. Comm. of Public Health, 957 A.2d 407, 417-18 (Conn. 2008) (“[b]y excluding same-sex couples from civil marriage, the [s]tate declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that what same-sex couples have is not as important or as significant as ‘real’ marriage, that such lesser relationships cannot have the name of marriage” (quoting Lewis v. Harris, 908 A.2d 196, 226-27 (2006) (Poritz, C.J., concurring and dissenting)). See also In re Marriage Cases, 183 P.3d 384, 445-46 (Ca. 2008); Opinions of the Justices to the Senate, 802 N.E.2d 565, 570 (Mass. 2004).

All of three of the above grounds are excellent examples of why same-sex marriages should be permitted in every state and afforded equal treatment with opposite-sex marriages by every state and the federal government. However, at this current stage, a state’s decision to permit state’s same-sex marriage instead of civil unions does not make too much of an impact on the first and second categories noted above. Regarding the first (other states’ recognition and treatment of marriages versus civil unions), it is at best unclear at this time that a state would have to recognize a same-sex marriage formed in a different state but would not have to recognize a civil union formed in a different state. Thus, Utah would probably treat a same-sex marriage formed in Iowa the same that it would treat a same-sex civil union formed in New Jersey. And if Utah chose not to recognize the same-sex marriage and the civil union, the Constitutionality of that decision probably does not turn on the name given to the relationship by the state in which the marriage or civil union was formed. As for the second ground (the federal treatment) it is clear that at this time that the federal government’s position is that it does not have to treat same-sex marriages as it does opposite-sex marriages (see the Obama DOJ’s brief in Smelt v. U.S., pdf here), and thus it makes no difference from the perspective of the federal government whether a same-sex relationship is labeled a marriage or a civil union; neither are treated the same as an opposite-sex marriage regardless.

Thus, the third category mentioned by the pamphlet (the assertion that labeling opposite-sex unions as “marriages” while labeling same-sex unions as “civil unions” implies that the latter is inferior) appears to be the only definite consequence of a state’s grant of same-sex marriages versus civil unions at this time. I still agree with the LGBT groups that this alone is sufficient reason to require that same-sex marriages be permitted, both from a policy perspective and on Constitutional grounds. But, in my opinion, this doesn’t mean that civil unions are so inferior to same-sex marriages that they should not be pursued at all. Yet LGBT groups appear to have largely taken an all-or-nothing approach, at least in the courts. For example, in the Maryland Court of Appeals decision on same-sex marriage, the LGBT groups presenting the case expressly abandoned the fallback position that even if the Maryland Constitution did not require same-sex marriages, it required civil unions. See Conaway v. Deane, 932 A.2d 571, 634 n. 71 (Md. 2007). One of the seven judges on the Maryland Court of Appeals nonetheless wrote a dissent arguing just such a position. Id., at 635-54 (Raker, J., concurring in part and dissenting in part). Perhaps one of the four judges in the majority opinion upholding the ban on same-sex marriage would have joined Judge Raker’s opinion had the argument not been disclaimed by the LGBT groups bringing the case, and same-sex couples in Maryland would be in a significantly better position than they are now. There may be some deeper strategy behind abandoning any argument for civil unions beyond moral outrage (a moral outrage I share), but I do not see it, and I do not understand why, if marriage is not available, LGBT groups would not want to at least secure the right to enter into an officially recognized relationship affording all of the rights, benefits, and obligations of marriage other than the name.

I plan to write a longer piece on this soon, but this issue takes on particular significance given the rogue filing of a federal challenge to Proposition 8 (“Prop 8”) in California. (See the complaint in pdf here). Even after the California Supreme Court’s decision upholding Prop 8, California law permits same-sex domestic partnerships that are at least extremely close to providing all of the rights, benefits and obligations of marriage other than the name. See my previous entry on this topic. The rogue federal complaint does not appear to raise any of the differences between California domestic partnerships and marriages other than the label (if there are any other differences), and instead seems to focus solely on the label. Now, I think that the lawyers bringing the rogue case are right that Prop 8 is a violation of the United States Constitution, and I even agree with the Amici brief filed by the ACLU, Lambda Legal Defense and Education Fund, and the National Center for Lesbian Rights arguing that Prop 8 has various Constitutional infirmities that do not even require the Court to reach the question of whether sexual orientation is a suspect classification or whether the fundamental right to marry should apply to same-sex couples (see pdf of Amici brief here). However, should the Court reject these narrow arguments, the Court will have to reach the larger issues of whether sexual orientation is a suspect classification and whether the fundamental right to marry applies to same-sex couples. The question I will pose is this: Do we want the United States Supreme Court (which is where many expect this case to end up), in the first case heard on the issue of same-sex marriage, to, just like the Maryland Court of Appeals, be unable to address the fallback position that civil unions are Constitutionally required because the issue isn’t presented? If LGBT groups want to keep that fallback position available (perhaps for a Justice such as Kennedy, who, like Judge Raker in Maryland, may not be comfortable requiring same-sex marriage but might at least conclude that civil unions are required), then those groups should consider filing a case raising federal issues in another state that does not already permit civil unions. That would hopefully provide a companion case in the Supreme Court if the Prop 8 case does indeed go that far. Even though an opinion from the Supreme Court saying that civil unions are all that the Constitution requires would be bittersweet, it would obviously be an immense improvement over the current situation and much better than a 5-4 decision concluding that there is no right to same-sex marriage that does not discuss civil unions.

As always, I would welcome your thoughts and comments on any of this. Please note that the above entry is not legal advice and any comments that you leave will not be protected by the attorney-client privilege, nor will reading this blog or commenting thereon cause us to enter into any legal representation.

“The principal components of electronic ink are millions of tiny microcapsules, about the diameter of a human hair. In one incarnation, each microcapsule contains positively charged white particles and negatively charged black particles suspended in a clear fluid. When a negative electric field is applied, the white particles move to the top of the microcapsule to become visible to the reader. This makes the surface appear white at that location. At the same time, an opposite electric field pulls the black particles to the bottom of the microcapsules where they are hidden. By reversing this process, the black particles appear at the top of the capsule, which now makes the surface appear dark at that location.”

The result exactly mimics how we view print on paper. Thus, when you look at this “screen,” you are looking at the exact same thing as a piece of paper, but it can change. It really looks like alien technology. It takes far less power than a monitor (current is only needed when the pages change) and it eliminates the flickering of a monitor and the backlight. Reading on a Kindle is a vastly superior reading experience to reading on a monitor.

So when I heard that the Kindle DX was coming out, with a screen large enough to display most of the readable area of a sheet of paper and .pdf support, I immediately started imagining how easy it would be to save cases and articles as .pdfs and read them on the Kindle, without killing all of those trees and creating all of that garbage.

I’ve just received my Kindle DX in the mail, and I have to say, e-ink is every bit as magical a display as I hoped, yet the Kindle’s software falls woefully short in two respects that prevent the Kindle from serving as the revolutionary device I was hoping it would be.

First, there is no folder system. There are 4 gigs of storage on the device, so you can fit tens of thousands of cases in .pdf form on the Kindle, yet all you can do is dump them into one huge folder. It is true that you can search within that massive folder for names, but you can’t organize cases pursuant to the matter or issue for which you are storing them. I suppose you could name a file with the matter or issue first, and then do a search for that matter or issue, but that seems an overly-cumbersome process. Imagine if you had to manually name each song that you put on your iPod – “Classical-Mozart-Requiem-Dies Irae.” Folder support is a no-brainer, yet Amazon has resisted adding that simple feature, for reasons that I cannot surmise. See here, for an article suggesting that this issue was raised in 2007 for the Kindle 1, yet it still hasn’t been fixed two years later for the Kindle DX.

Second, there is no ability to markup a .pdf file. You can’t put little comments in or about a case or article. This is odd, since the Kindle does allow you to do that with .kindle format objects. So, essentially, there is no way to take notes about the case on the Kindle, which is a shame, as it requires bringing something else along to take notes on, cutting down on what would otherwise be a beautifully self-contained item. I am going to look into having the word-format files from Westlaw converted to .kindle format, so hopefully I can avoid this issue, but for now this is a real pain.

I am very excited about the future of e-ink and I think that the Kindle seems like a great device for reading Kindle books, but these two software issues really hamstring the potential for the Kindle to replace much of the printing that I currently do. I really think that is a great shame, and hopefully Amazon will act quickly to rectify these software issues. If anyone knows of any workarounds, please let me know.

Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Cases, supra, 43 Cal.4th at p. 829)…. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

Thus, while the California Supreme Court ultimately concluded that Prop 8 is not unconstitutional, this is not as terrible a loss as it initially seemed for proponents of same-sex marriage. Notably, the California Supreme Court’s narrow reading of Prop 8 means not only that civil unions with all of the same substantive aspects as marriage (other than the name) are still permitted, but they actually remain a constitutional right under the California constitution. See In re Marriage Cases, 183 P. 3d 384 (Ca. 2008). The issue is only a matter of labels.

This is not meant to diminish the absurdity that Californians would act with such hostility towards homosexuality that they would require that same-sex unions be labeled something other than the label provided to heterosexual unions, but at least this avoids what I regard to be the worse result of complete denial to same-sex couples of the ability to enter into unions giving them the same substantive rights as marriage. This avoids the tragedy of devoted partners being unable to enter into a union that will allow them visit each other in the hospital and participate in medical decisions, or to have the same parental rights as heterosexual married couples, or any of all of the other benefits and responsibilities conditioned on marital status.

In the coming weeks, I hope to write a longer piece on the wisdom of the filing of a federal lawsuit challenging Prop 8 (as has already been done – see here), particularly considering the narrow reading given by the California Supreme Court. Essentially, I plan to discuss whether, as a tactical matter, it is better that the first Federal constitutional challenge could come out of California, where the issue is only that of the label applied to the union, rather than one of the many other states where same-sex couples do not have the benefit of the availability of civil unions.

I would welcome your thoughts and comments on any of this. Please note that the above entry is not legal advice and any comments that you leave will not be protected by the attorney-client privilege, nor will reading this blog or commenting thereon cause us to enter into any legal representation.

Joe

Remember, none of this is legal advice. If you require legal assistance, please see www.macklawonline.com to find more information about my firm.