Saturday, October 25, 2008

Fundamental rights and wrongs - the legal issues behind Proposition 8

I've heard commercials in opposition to Proposition 8 that refer to the denial of "fundamental rights." When I asked what these fundamental rights were in FriendFeed and got no responses, I figured I'd explore the issue myself.

Let's start with Laurie McBride (co-chair, Stonewall Democrats), in her article "Prop 8 Eliminates Fundamental Rights":

[T]he opposition is spending millions of dollars on ads that are full of lies and scare tactics. We must reject those tactics so that all Californians are guaranteed the same fundamental rights.

The constitution is the soul of our state, guaranteeing the same rights to all, including the right to marry the person we choose. Proposition 8 would deny that basic right to tens of thousands of people, permanently denying them one of the basic rights of the constitution.

Now for those who object that marriage is not addressed in the U.S. Constitution, one must remember that items not addressed in the U.S. Constitution are reserved to the states, or to the people.

So, does the California constitution address marriage? According to a 4-3 majority on the California Supreme Court (S147999), it does.

In Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055 (Lockyer), this court concluded that public officials of the City and County of San Francisco acted unlawfully by issuing marriage licenses to same-sex couples in the absence of a judicial determination that the California statutes limiting marriage to a union between a man and a woman are unconstitutional. Our decision in Lockyer emphasized, however, that the substantive question of the constitutional validity of the California marriage statutes was not before this court in that proceeding, and that our decision was not intended to reflect any view on that issue. (Id. at p. 1069; see also id. at p. 1125 (conc. opn. of Moreno, J.); id. at pp. 1132-1133 (conc. & dis. opn. of Kennard, J.); id. at p. 1133 (conc. & dis. opn. of Werdegar, J.).) The present proceeding, involving the consolidated appeal of six cases that were litigated in the superior court and the Court of Appeal in the wake of this court’s decision in Lockyer, squarely presents the substantive constitutional question that was not addressed in Lockyer.

In considering this question, we note at the outset that the constitutional issue before us differs in a significant respect from the constitutional issue that has been addressed by a number of other state supreme courts and intermediate appellate courts that recently have had occasion, in interpreting the applicable provisions of their respective state constitutions, to determine the validity of statutory provisions or common law rules limiting marriage to a union of a man and a woman. (See, e.g., Conaway v. Deane (Md. 2007) 932 A.2d 571; Goodridge v. Dept. of Pub. Health (Mass. 2003) 798 N.E.2d 941; Lewis v. Harris (N.J. 2006) 908 A.2d 196; Hernandez v. Robles (N.Y. 2006) 855 N.E.2d 1; Baker v. State (Vt. 1999) 744 A.2d 864; Andersen v. King County (Wn. 2006) 138 P.3d 963; Standhardt v. Superior Court (Ariz.Ct.App. 2003) 77 P.3d 451; Morrison v. Sadler (Ind.Ct.App. 2005) 821 N.E.2d 15.) These courts, often by a one-vote margin (see, post, pp. 114-115, fn. 70), have ruled upon the validity of statutory schemes that contrast with that of California, which in recent years has enacted comprehensive domestic partnership legislation under which a same-sex couple may enter into a legal relationship that affords the couple virtually all of the same substantive legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple. Past California cases explain that the constitutional validity of a challenged statute or statutes must be evaluated by taking into consideration all of the relevant statutory provisions that bear upon how the state treats the affected persons with regard to the subject at issue. (See, e.g., Brown v. Merlo (1973) 8 Cal.3d 855, 862.) Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.” The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution....

[U]pon review of the numerous California decisions that have examined the underlying bases and significance of the constitutional right to marry (and that illuminate why this right has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution), we conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative
process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage. As past cases establish, the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own — and, if the couple chooses, to raise children within that family — constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.

These are the opening paragraphs of C.J. George's 121-page opinion on the matter. However, three people did not agree with George. Well, J. Baxter agreed, but he also disagreed:

The majority opinion reflects considerable research, thought, and effort on a significant and sensitive case, and I actually agree with several of the majority’s conclusions. However, I cannot join the majority’s holding that the California Constitution gives same-sex couples a right to marry. In reaching this decision, I believe, the majority violates the separation of powers, and thereby commits profound error....

The majority’s mode of analysis is particularly troubling. The majority relies heavily on the Legislature’s adoption of progressive civil rights protections for gays and lesbians to find a constitutional right to same-sex marriage. In effect, the majority gives the Legislature indirectly power that body does not directly possess to amend the Constitution and repeal an initiative statute. I cannot subscribe to the majority’s reasoning, or to its result.

J. Corrigan also concurred and dissented:

In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not. Therefore, I must dissent.

Corrigan also makes an interesting observation:

This court has previously held that the “chief goal of the DPA is to equalize the status of registered domestic partners and married couples.” (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 839.) In this case, however, the majority fails to honor that goal. Instead of recognizing the equality conferred by the Legislature, the majority denigrates domestic partnership as “only a novel alternative designation . . . constituting significantly unequal treatment,” and “a mark of second-class citizenship.” (Maj. opn., ante, at pp. 103, 104.) Without foundation, the majority claims that to hold the domestic partnership laws constitutional would be a statement “that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples.” (Maj. opn., ante, at p. 118.) This is simply not so. The majority’s narrow and inaccurate assertions are just the opposite of what the Legislature intended. To make its case for a constitutional violation, the majority distorts and diminishes the historic achievements of the DPA, and the efforts of those who worked so diligently to pass it into law.

At this point, laypeople such as myself will recognize that a national court also objected to similar "separate but equal provisions."

Back to George. In his opinion, he spent some time on Family Code sections 300 and 308.5.

Family Code section 300 currently provides in relevant part: “Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.” In light of its language and legislative history, all parties before us agree that section 300 limits marriages that lawfully may be performed in California to marriages of opposite-sex couples.

There is no similar agreement between the parties, however, as to the meaning and scope of a second provision of the Family Code — section 308.5 — that also contains language limiting marriage to a union between a man and a woman. Section 308.5, an initiative statute submitted to the voters of California as Proposition 22 at the March 7, 2000, primary election and approved by the voters at that election, provides in full: “Only marriage between a man and a woman is valid or recognized in California.”

However, after reviewing other law, George determined:

[B]ecause of the long and celebrated history of the term “marriage” and the widespread understanding that this word describes a family relationship unreservedly sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to opposite-sex couples — while providing only a novel, alternative institution for same-sex couples — likely will be viewed as an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples. Furthermore, because of the historic disparagement of gay persons, the retention of a distinction in nomenclature by which the term “marriage” is withheld only from the family relationship of same-sex couples is all the more likely to cause the new parallel institution that has been established for same-sex couples to be considered a mark of second-class citizenship....

[W]e conclude that retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling, under the strict scrutiny equal protection standard, to justify withholding that status from same-sex couples. Accordingly, insofar as the provisions of sections 300 and 308.5 draw a distinction between opposite-sex couples and same-sex couples and exclude the latter from access to the designation of marriage, we conclude these statutes are unconstitutional.

While the court limited itself to the legal issues, and while Proposition 8 opponents haven't already provided specifics for their claims, there is one documented event that occurred in Massachusetts in March 2006 when that state changed its law.

Archbishop Sean P. O'Malley and leaders of Catholic Charities of Boston announced yesterday that the agency will end its adoption work, deciding to abandon its founding mission, rather than comply with state law requiring that gays be allowed to adopt children.

The Rev. J. Bryan Hehir, president of Catholic Charities of Boston, and Jeffrey Kaneb, chairman of the board, said that after much reflection and analysis, they could not reconcile church teaching that placement of children in gay homes is ''immoral" with Massachusetts law prohibiting discrimination against gays....

Catholic Charities, the social services arm of the archdiocese, will shut down its adoption operation June 30, Hehir said. Adoptions underway will be completed, he said.

Hehir said he hoped the decision will end the tumult surrounding the gay adoption issue. The controversy began in October [2005] when the Globe reported that Catholic Charities had been quietly processing a small number of gay adoptions, despite Vatican statements condemning the practice. Over the last decades, the Globe reported, approximately 13 children had been placed by Catholic Charities in gay households, a fraction of the 720 children placed by the agency during that period.

Agency officials said they had been permitting gay adoptions to comply with the state's antidiscrimination laws. But after the story was published, the state's four bishops announced they would appoint a panel to examine whether the practice should continue. In December, the Catholic Charities board, which is dominated by lay people, voted unanimously to continue gay adoptions.

But, on Feb. 28, the four bishops announced a plan to seek an exemption from the antidiscrimination laws. Eight of the 42 board members quit in protest, saying the agency should welcome gays as adoptive parents.

That day, Hehir and O'Malley met with [then-Governor Mitt] Romney in his State House office to make their case for an exemption, but Romney said he lacked the authority to do so. Hehir and O'Malley left the State House feeling that nothing could be done soon for their cause. The bishops had considered launching a court challenge, but Hehir said he and O'Malley realized it would cost ''too much time and energy" -- without any certainty of victory.

''It became clear our options were narrow," Hehir said.

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