Friday, November 28, 2008

Something to contemplate on Black Friday

Phil Spector totally looks like a dandelion.

Thursday, November 27, 2008

Strauss v. Horton: Law, Politics and Prop 8, part II

As promised, here is part 2 of my analysis of the upcoming review of Proposition 8, Strauss v. Horton. In this post, I will look at some of the political winds that are influencing the court.

The first question that a lot of people ask is why, if the court is inclined to overturn Proposition 8, would they have let the initiative go to a vote? A group of litigants tried to get the Court to hear the revision challenge before the vote took place in a case called Bennett v. Bowen. The court denied their request for hearing, ruling that proposition 8 hadn't passed and so was not yet a live controversy. Judicial action was therefore not yet proper. This is a judicial doctrine known as ripeness. There are very few exceptions that would allow the court to take jurisdiction over a potential dispute; this issue did not fall into any of those exceptions.

But now, the dispute isn't just potential, it is live and the Court can now hear it. While courts are meant to be independent of political pressure, even the most isolated of courts would feel the politics of this decision weighing on them. The court has a lot of institutional pressure to strike down Proposition 8, but would expend a lot of political capital if it strikes the initiative down.

The foundation of the judiciary's power is moral legitimacy. The judiciary has no way of enforcing its own orders; its orders are upheld because the other branches of government and the people in general view the decisions of courts as binding, final, and authoritative. To that end, a court protecting its own legitimacy must take into account the effect that its decisions would have in building and maintaining its moral legitimacy. Specifically, a court must balance the perception of being a final and binding authority on the one hand and not appearing to be an unaccountable dictator on the other. Weighing on the final and binding authority side, the court has an interest in not having its decisions overturned. Many times, judges will even strike down attempts to override past decisions where that particular judge was in the minority. While the judge may disagree with the prior decision, protecting the right of the court to make that decision may prove to be a higher value for the judge than overturning the prior decision. Especially in this case, where the question of whether the court correctly decided that gays and lesbians constitute a suspect class is not before the court, even some justices who were in the minority in the previous case may be tempted to strike down Proposition 8 now that that status is a matter of settled law. As I mentioned in part one, I don't think the Court has left itself a lot of wiggle room in its previous opinion to uphold Prop 8, and if they do uphold it, they look weak and indecisive--not a good position for a court to be in.

On the other hand, to strike down Proposition 8, the court would have to invalidate the will of the majority of California voters. Overturning Proposition 8 will necessarily cost more in terms of public perception than would a statute passed by the legislature or something that had a lower profile. In fact, there is a movement afoot by supporters of Proposition 8 to recall any of the justices who vote to strike down the initiative. Given the propensity for craziness in the California recall system (see, e.g., Gray Davis), this is probably not an idle threat.

So what's a court to do? If the court is inclined to overturn Prop. 8 (I think they are), They need as much cover as possible. When courts make important and unpopular decisions (See Brown v. Board of Education and U.S. v. Nixon), the tendency is to speak with one voice. Look for any opinion overturning Proposition 8 to be a 7-0 or 6-1 opinion. This will necessarily entail coalition building and compromise, so look for a decision to take some time. Finally, it may be that the recall threat will actually backfire--a blatant attempt to coerce a judge to rule one way or another tends to bring out belligerence in the people whose job it is to ensure an independent judiciary.

In sum, I think there are a lot of non-legal factors that can push the court one way or another, and these are important things to consider when predicting how the review of Proposition 8 will turn out. Thoughts?

Wednesday, November 26, 2008


Happy Thanksgiving all...

Tuesday, November 25, 2008

Strauss v. Horton: Law, Politics and Prop 8, part I

As predicted, the passage of Proposition 8 did not end the question of same-sex marriage in California. The Supreme Court has agreed to hear a challenge of the validity of Proposition 8 in a case that appears to be titled Strauss v. Horton. The three questions that the court certified are as follows:

  1. Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

  2. Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

  3. If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of marriages of same-sex couples performed before the adoption of Proposition 8?

Partly to satisfy my own curiosity and partly to help others wade through these issues, I have done some research on issues 1 and 2 (I'll leave 3 for another day). I am not an expert on California Constitutional Law, but I know a thing or two about constitutional law in general, so here is my attempt, for what it's worth.

Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

This seems to be the best argument for overturning Proposition 8. As provided in Section 18, an amendment to the California Constitution can occur by initiative, but a revision to the constitution must start by the legislature approving a a revision commission ballot question. The ballot question must be approved by a general election of the state, then a revision commission writes a new constitution, then the constitution must be supported by a majority at another general election. Absent that process, the California Supreme Court can rule that the subject matter of a proposed amendment would amount to the revision of the California Constitution and so much go through the more rigorous process. An explanation of the difference between an amendment and a revision is written here, a portion of which I have excerpted below:

"Amendment" implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed. The revision/amendment analysis has a dual aspect, requiring us to examine both the quantitative and qualitative effects of the measure on our constitutional scheme. Substantial changes in either respect could amount to a revision. An enactment which is so extensive in its provisions as to change directly the "substantial entirety" of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also.

The question is whether Proposition 8 affects the substantial entirety of the California Constitution. Initiatives in the past that have been held to be revisions by the California court include not only initiatives that attempt to change several parts of the constitution at once (McFadden v. Jordan), but also those that would enact a fundamental qualitative change in the structures of the government, such as an initiative to limit the criminal procedure protections of the California Constitution to those that are recognized in the federal constitution (Raven v. Deukmejian).

Prop 8 only touches on one subject and is limited to one existing right of that subject. In that sense it is fairly different than those cases that I mentioned earlier. But I think there is still a fairly good case to be made that Prop 8 constitutes a revision. When viewed through the lens of California Constitutional law, Proposition 8 purports to strip a fundamental right from a suspect class. To affirm Prop 8 as an amendment, the Court would have to either revisit one of these two classifications (which they are unlikely to do) or draw a line that says what fundamental rights can be stripped from suspect classes before it constitutes a fundamental qualitative change in the California Constitution. I just don't think that the opinion in Marriage Cases gives them the wiggle room to say that. Because I think that the court won't write an opinion that says that stripping a fundamental right from a suspect class can be accomplished by a majority vote, I think that this argument is a winner.

Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

The argument, as I understand it, is that Proposition 8 is a legislative attempt to relitigate and overturn a judicial judgment, which is a core judicial function. Words cannot express how bewildering this argument is to me. The only reason that separation of powers would matter is as a means of determining whether prop 8 constitutes a revision. I can only conclude that the court certified this question as a subset of the revision question; that makes more sense given that a change in the allocation of governmental power is per se a revision of the constitution. So I will approach it in that way.

Regardless of the function of this argument, I just don't think it's very good. The check and balance on the judiciary is that if the court interprets a statute in the way that the legislature doesn't like, the legislature passes a new law. If the court interprets the constitution in a certain way and the legislature doesn't like it, they start the process to amend the constitution. It seems like this argument would apply to every new law or amendment. It also can't be said that the court has a special role in protecting minorities. If anything, that role is incidental to the courts' role in interpreting the constitution, not an inherent judicial function. I don't know; maybe I'm missing something. If someone wants to tell me that I'm wrong and this is a good argument, feel free to explain it to me. I'm lost.

OK, I've had my say on the law. Feel free to read some more qualified musings on the subject here, here, here, and here. Stay tuned for part two on Thanksgiving. Fight the tryptophan to read my analysis of the politics that the Court faces in this case and why they may affect the decision as much as the law.

Monday, November 24, 2008

Princeton Sidewalk Protection Act

The Tigers have begun a campaign of love:

"We’re not froshophobes. We just think they should stay on the grass."

Friday, November 21, 2008

Thursday, November 20, 2008

Why I'm Writing

I'll admit it. I have a conservative streak a mile wide. When I say conservative, I don't mean my politics--I'm fairly progressive--I mean my temperament. So naturally, the thought of going to a protest is beyond distasteful to me (this is meant as no offense to those who did--someone has to do it). I want to provide support for the gay rights movement without having to do things that I neither enjoy doing nor am very good at.

The solution to this problem is to do what I am good at--writing essays that (I hope) provide a reasoned argument in favor of gay rights. I approach my essays as an advocate. I am not going to make any pretense of neutrality. I will, however, give everyone who comments here a fair shake, and attempt to engage all arguments made in good faith.

If you comment here, please be aware of two rules: first, stay on topic. Second, be respectful of me and your fellow commenters. Violation of either of these two rules is grounds for warnings and/or comment deletion. Other than that, I hope you enjoy the blog--feel free to comment or just lurk. Next week I should have a couple of posts dealing with the legal arguments in the California Supreme Court's review of Prop 8. Until then, enjoy the wackiness of this amicus letter urging the court not to review Prop 8. I especially like where the "heiress of the almighty creator" digresses into abortion and the Iraq War...

Wednesday, November 19, 2008

Tuesday, November 18, 2008


To those of you joining me from Carolyn's blog and Facebook, welcome. My theme for the next few posts will be same-sex marriage and Proposition 8. If you're burned out on this subject, check back in a couple of weeks, when I may have moved on to fresher topics. For now, check back often--I post essays on Tuesdays and Thursdays.

Monday, November 17, 2008

Saturday, November 15, 2008

Tuesday, November 4, 2008

All This Fuss over One Word?

With the premises fully laid out, I will now proceed to my point: Proposition 8 does not affect religious freedom. The only thing that Proposition 8 will do is to change the word by which we call same-sex unions. If Prop 8 fails, these unions will continue to be called marriages. If Prop 8 passes, they will be called domestic partnerships. Why all of this trouble for a word?

But first, let me deal with Carolyn's arguments one by one. Carolyn's first argument is that she and a lot of legally trained people believe that same-sex marriage will hurt religious freedom. She includes quotes by a lot of people saying that this is so. But she doesn't include the parts of these quotes that explain why same-sex marriage will harm religious freedom. An argument includes a claim and a warrant--an explanation as to why the claim is true. What Carolyn has provided with these quotes are a bunch of unsupported claims. To rest your arguments on the reputation of the person saying it rather than arguments is called an appeal to authority--a logical fallacy. I'm not suggesting that Carolyn cannot show that same-sex marriage may harm religious freedom, but only that none of the quotes she uses make that argument.

Carolyn's second argument assumes without explaining that her example of parents not being able to opt out of public school curriculum somehow relates to religious freedom. This is not self-evident; in fact, I would say that controlling a child's educational development, while a freedom guaranteed by the liberty clause of the fourteenth amendment, is not a part of religious freedom. In short, the State is not telling parents what they can believe, what they can preach, what religious rituals they can do, or whether they can congregate. The decision only says that if parents choose to send their kids to public schools, they can't prevent the State from teaching their kids certain things. It does not say that the parents can't teach them conflicting principles at home, nor that the parents have to choose the state as their educator. While avoiding secular messages that challenge one's beliefs may be in a person's religious interest, it is not a principle of religious freedom.

Besides that, Carolyn does not explain how passing Prop 8 would make the decision come out any differently. As Carolyn explained in note 22 of her first post, there is no functional difference between domestic partnerships and marriages. Why, then, would a court find a difference in the importance of "promoting tolerance, including for the children (and parents) of gay marriages" and promoting tolerance, including for the children (and parents) of gay domestic partnerships, especially since the California educational code mandates that the schools teach respect for both marriage and "committed relationships."1 Certainly if a state said that domestic partnerships were treated identically under the law as marriage, that would mean that promoting tolerance of a domestic partnership was of the same importance as promoting tolerance of a gay marriage.2 Prop 8 just doesn't change anything about the case Carolyn talks about.

Carolyn's next argument is about how in re Marriage Cases violated separation of powers. Ultimately, this argument is irrelevant to the question of how prop 8 will affect religious freedom (unless Carolyn wants to show how it does). For now, I'll let it pass by with a snyde reference to Marbury v. Madison and how voter initiatives are not entitled to more deference than other duly passed statutes.

Carolyn's final argument is one that I want to spend some time with--civil rights. Carolyn states that comparison to the Civil Rights movement is spurious because there is no right to same-sex marriage. I could answer this myself, but the California Supreme Court does it so much better:

Although all parties in this proceeding agree that the right to marry constitutes a fundamental right protected by the state Constitution, there is considerable disagreement as to the scope and content of this fundamental state constitutional right. The Court of Appeal concluded that because marriage in California (and elsewhere) historically has been limited to opposite-sex couples, the constitutional right to marry under the California Constitution properly should be interpreted to afford only a right to marry a person of the opposite sex, and that the constitutional right that plaintiffs actually are asking the court to recognize is a constitutional "right to same-sex marriage."

. . . In Perez v. Sharp--this court’s 1948 decision holding that the California statutory provisions prohibiting interracial marriage were unconstitutional--the court did not characterize the constitutional right that the plaintiffs in that case sought to obtain as "a right to interracial marriage" and did not dismiss the plaintiffs' constitutional challenge on the ground that such marriages never had been permitted in California. Instead, the Perez decision focused on the substance of the constitutional right at issue--that is, the importance to an individual of the freedom "to join in marriage with the person of one’s choice" --in determining whether the statute impinged upon the plaintiffs' fundamental constitutional right . . . .

The flaw in characterizing the constitutional right at issue as the right to same-sex marriage rather than the right to marry goes beyond mere semantics. It is important both analytically and from the standpoint of fairness to plaintiffs' argument that we recognize they are not seeking to create a new constitutional right--the right to "same-sex marriage"--or to change, modify, or (as some have suggested) "deinstitutionalize" the existing institution of marriage. Instead, plaintiffs contend that, properly interpreted, the state constitutional right to marry affords same-sex couples the same rights and benefits--accompanied by the same mutual responsibilities and obligations--as this constitutional right affords to opposite-sex couples. For this reason, in evaluating the constitutional issue before us, we consider it appropriate to direct our focus to the meaning and substance of the constitutional right to marry, and to avoid the potentially misleading implications inherent in analyzing the issue in terms of "same-sex marriage."3

As the court points out, the argument that there is no right to same-sex marriage is the same as the argument that prior to 1958, there was no right to interracial marriage. It is a clever bit of sophistry unworthy of a freedom-loving state; it is an argument that says that you can only have your rights protected if you were powerful enough to avoid persecution in the past. This argument sets up the Constitution as protecting the strong against the weak rather than the other way around.4

In the end, this debate is not about hospital visits, or the right to preach against homosexuality, or anything like that. None of that will be affected by prop 8 one way or another. As I've tried to make clear in my previous posts, this is only about whether gay unions are called marriage or domestic partnerships. It is about the meaning of one word. Let me tell you why one word is important.

If proposition 8 passes, gays will still have legally recognized unions in the state of California, with all the rights and responsibilities of marriage. They just won't be called marriage. Why? What is the motivation of a state to have one institution for opposite-sex couples and another for same-sex couples when there's no functional difference between them? People for and against prop 8 agree on one thing: the word "marriage" is a symbol of something special. The only logical motivation to reserve the word for opposite-sex couples is that including same-sex couples will somehow take away the specialness of the word. So same-sex couples are segregated out of the institution of marriage not for a functional reason, but to signal that their relationships are different, and by the same token, lesser, than opposite-sex relationships. Passing prop 8 won't protect religious freedom; the only thing it will do is to make it clear that the state believes that gay relationships are not equal in dignity to straight relationships. That is a classic violation of equal protection written into the California Constitution. Because I am against that, I am opposed to proposition 8.5

1. See Cal. Educ. C. § 51933(7).

2. Cal. Fam. C. § 297.5.

3. In re Marriage Cases, 183 P.3d 384 (2008).

4. Rhetorical hyperbole? You say that like it's a bad thing...

5. OK, so maybe not brief, but it's still pithy.

Monday, November 3, 2008

Religious Freedom Part II

I apologize for taking so long to get to the meat of the debate, but I hope you'll bear with me for one more observation. This post will argue that just because something is detrimental to the interests of a particular religion does not mean that it is detrimental to religious freedom. Let me illustrate this point by posing a hypothetical situation. For our hypothetical let's travel to Salt Lake City. The city has had enough of the conference street preachers and so passes the following ordinance:

Whereas, the freedom to peaceably assemble for worship purposes is a vital component of religious freedom, and whereas, contentious protest and proselytizing upsets the peace and goodwill that characterizes religious worship and reduces the quality of the worship experience for parishioners, therefore, be it enacted that no protest or proselytizing shall occur within 500 feet of any church within the hour prior to, during, and within the hour after the worship services of that church.

Anyone who has experienced the street preachers at temple square would probably agree with the preface of the ordinance. Having a contentious person calling you to repentance while you are standing in line to get in to the conference center does take away from the spirit of the meeting. The ordinance would likely increase the quality of the religious experience for many conference-goers. However, this ordinance would be unequivocally bad for the principles of religious freedom, as it would limit the freedom of the street preachers to proclaim their beliefs.

This story illustrates in my mind an important distinction that I think we sometimes overlook: just because a law promotes a view that is hostile to a particular point of view of a religion does not mean that it violates the principles of religious freedom. I, for one, freely admit that government tolerance of homosexuality and the sanctioning of same-sex relationships pose problems for the promotion of LDS doctrine. It becomes harder for a church to preach that a certain behavior is a sin when the state endorses that behavior. One can envision all sorts of practical problems from proselytizing to record keeping that the Church suffers because of same-sex marriage. However, these problems do not necessarily mean that religious freedom is implicated.

Therefore, an argument showing how Prop 8 implicates religious freedom necessarily has three steps: First, the argument should identify the freedom at issue and show that it is a part of the principles of religious freedom. Second, the argument should show how that freedom is being harmed in the status quo. Finally, the argument should show how passing Prop 8 will solve that harm. Anything less just won't logically cut it.

Sunday, November 2, 2008

Religious Freedom

The statement that Carolyn is affirming is that Proposition 8 will protect religious freedom. Before we can have a proper debate on this subject we must define what exactly religious freedom is. This post is my attempt to explain what religious freedom means to me.

In my mind, religious freedom consists of four elements. The primary element of religious freedom is the freedom to believe according to the dictates of one's conscience. While this freedom is the core of religious freedom, it is the least important focus in looking at policy--until the government has the means of mind control, individuals will always have the ability to believe as they want, even in the most repressive state.

Religious freedom also includes the right to freely express one's beliefs, and as a corollary, to not be required to express beliefs that one does not hold. Justice Jackson expressed it thusly:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.1

The freedom to express one's religious beliefs is protected in the United States mainly by the First Amendment's guarantee of freedom of speech.

A third element of religious freedom is the freedom to congregate and worship with like-minded individuals. This freedom may be a matter of course to most Americans, but this is often a freedom denied to many minority religious groups in many places to maintain state control. Again, this part of religious freedom is not protected under the free exercise clause of the First Amendment. Rather, it is protected under the freedom of association, a right that the Court has found in the "penumbras" of the existing freedoms of speech, assembly, and the liberty clause of the Fifth and Fourteenth Amendments.2

The fourth element of religious freedom is the freedom to practice one's religious rituals. This is where state regulation and religious freedom are most likely to clash. Issues like polygamy, religious peyote use, and animal sacrifice fall into this category. Currently, protection of religious practice come from the free exercise clause of the First Amendment and state and federal statute. The Court has ruled that a generally applicable law that does not discriminate against religion is valid. That means, to take two examples, that a state can prohibit peyote use for all of its citizens without running afoul of the Constitution,3 but if a city allows for the slaughter of chickens for non-religious purposes, it must also allow for the slaughter of chickens for religious purposes.4 The states and federal government can also exempt religious practices from the scope of otherwise generally applicable laws; the federal government and some of the states have done this.

This is just a primer of religious freedom, and I may have missed some vital dimensions in my haste to write this post. What say you, dear readers? What other issues are important to note when talking about religious freedom?

1. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

2. See Roberts v. United States Jaycees, 468 U.S. 609 (1984).

3. Employment Division v. Smith, 494 U.S. 872 (1990).

4. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).

Saturday, November 1, 2008

A Note on Policy Debates

At its roots, the debate over Proposition 8 is a policy debate. The question is whether passing Proposition 8 is better than not passing it. Therefore, some observations about policy debates seem warranted.

Policy is implemented in the real world. While this statement may seem obvious, experience shows that it is a point worth making. Too often, those in favor of a change in policy focus too much on the unacceptability of the status quo to question whether the alternative will be better, while those against a policy compare the imagined harm to a utopian alternative rather than the reality of the status quo. As academic debaters have often noted, the key to winning debates is found within the simple description of how the world is.

In the case of Proposition 8, we have to compare the status quo of same-sex marriage with the alternative under California law: a world with the same anti-discrimination laws, the same adoption laws, and domestic partnership laws that provide same-sex couples with an institution that only differs from marriage by its name.

The second important observation about the real world is that homosexuals exist, that same-sex couples exist, that same-sex couples have children, and none of that will change if Prop 8 is passed. Even without marriage, homosexuals will still live in society and affect it in any number of ways. The question then becomes not whether same-sex marriages are good for marriage, but whether same-sex relationships are better for society inside or outside of the boundaries of marriage.

As this debate unfolds, we need to remember to keep in mind what the real consequences of each course of action are, rather than analyzing one option against an idealized alternative that doesn't actually exist. Only when we do that can we accurately judge the merits of the policy alternatives.