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Law, Unwrapped: Analysis Of Today’s Prop 8 Decision That Is True Genius

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Editor’s note: John Culhane will be available for questions on today’s Prop 8 decision. If your have any, leave them in the comments section. Perhaps he’ll surprise us and be available for a live chat this week!

Today, the Ninth Circuit court of appeals handed down a long, thoughtful – but exceedingly narrow –  ruling upholding the decision of Judge Vaughn Walker that Proposition 8 is unconstitutional.

The decision, Perry v. Brown, is worth exploring in some detail, but here’s the bottom line: If this court’s decision is ultimately upheld by the U.S. Supreme Court under the same legal theory, the result would be limited to California. Prop 8 would be thrown out and same-sex couples would be able to resume marrying there – but nowhere else.  Why so narrow? Once again, it’s all about trying to get the vote of Justice Anthony Kennedy.

Let’s deal with the non-constitutional issues first. (I’ll try to be brief so we can get to the good stuff.) The crazy attempt to have Judge Walker disqualified because he’s a gay man in a long-term relationship received the backhand it deserved. The court telegraphed its view of this position during oral argument. Judge Smith (who dissented from today’s decision on the central constitutional issue) couldn’t see any difference between booting a gay judge in a relationship and disqualifying a straight, married judge from deciding the case if he had an interest in maintaining “the definition of marriage as it applies to his marriage.” And should judges married to someone of a different race not have been able to rule on anti-miscegenation laws? No one expected this argument to have any traction, and it didn’t. If the Prop 8 proponents are smart, they will leave this inane argument out of their expected appeal to the Supreme Court.

The other question that had to be answered before the appellate court could reach the merits of the dispute was whether the Prop 8 proponents had standing to appeal. I’ve written about this issue already, and won’t rehash all the details here. In sum, the appellate court had asked the California Supreme Court to weigh in on whether the proponents were proper parties to appeal in cases where the state’s own officials (the Governor and the Attorney General) declined to do so.  That court said, essentially, that the proponents could stand in the shoes of the state’s officials, so that someone would be able to defend the measure. Given California’s initiative process, the proponents were “the people” defending the state’s interests.

Once that opinion was handed down, today’s holding by the federal court on the standing issue was a virtual certainty. I’m still not wholly convinced the Supreme Court will find standing in this case, but the odds are very good that it will; it was smart of the California court to base standing on its interpretation of California law, rather than on the more nebulous constitutional standards under which the Supreme Court has decided this question. The high court will likely leave the state court alone.

So the attempts by both sides to get this case tossed out without reaching the merits were brushed aside, seemingly leaving the central questions of Prop 8 to be decided: (1) Does that measure violate the federal guarantees of equality?  (2) Does Prop 8 violate the fundamental right of same-sex couples to marry?

But I say “seemingly” because the court adroitly sidestepped the hard questions of whether a state can, consistent with guarantees of constitution rights, prohibit same-sex couples from marrying.  Instead, it asked and answered the following question:

May a minority group be “targeted for the deprivation of an existing right without a legitimate reason[?]”(emphasis added)

Recall that, before Prop 8 was passed, the California Supreme Court had held that gays and lesbians had a right, under the California Constitution, to marry. So Prop 8 “had one effect only…to take away from same-sex couples the right be granted marriage licenses and thus legally to use the designation of ‘marriage[.]’”

With the question thus narrowly framed, the court planted the rationale for its decision in the soil of a 1996 Supreme Court case, Romer v. Evans. In that case, the Court (in an opinion by Justice Kennedy), held that Amendment 2 to the Colorado state constitution violated the federal constitution. That Amendment removed existing anti-discrimination protection in favor of gays and lesbians, and then went further by forbidding the enactment of any news laws protecting LGBT citizens. This kind of law was just weird, as the Romer Court said in so many words: “Laws singling out a certain class of citizens for disfavored legal status or general hardships are rare.”  And because they’re so rare, laws of this type give rise to an inference that they’re passed only because of animus (read: dislike) toward the targeted group.

Throughout the long decision in Perry, Judge Reinhardt referred again and again to Romer, which is a case decided under the “equal protection” clause of the Fourteenth Amendment, but an odd one because Romer doesn’t depend on the status of the underlying right – the right to an anti-discrimination law in favor of a particular group isn’t a constitutional right, itself – but, again, on the decision of the state (acting through the voters) to take that right away.

So, too, with Prop 8, according to Judge Reinhardt. Taking away a right, especially by passing a constitutional amendment, without a good reason is the most basic denial of equal protection, so there’s no need to get into the deeper questions of whether there’s a fundamental right for same-sex couples to marry, or whether equal protection is denied in states that refuse to recognize same-sex marriages in the first place!

If you’re thinking that this decision renders Judge Walker’s long trial and his subsequent decision largely irrelevant, you’re right. But the decision is genius. Here’s why.

First, by using the logic of Romer v. Evans, the court avoided the tricky question whether laws singling people out for different treatment based on sexual orientation should receive a heightened level of scrutiny. No federal appellate court has applied this heightened level, which is used for cases involving race and gender, among other things. Romer, by contrast, required only that the law have a “rational basis,” but applied that usually deferential test in a more searching way than usual, given that it imposed a legal disability on a class of people.

And applying that standard, Judge Reinhardt, tracking Romer, saw no good reason for Prop 8.  The primary reasons given for Prop 8 – that it encouraged child-rearing and responsible procreation – were revealed as shams. Same-sex couples were and still are parents with the same rights as opposite-sex couples, both before and after Prop 8. In passing Prop 8, the voters did nothing more than enshrine their prejudices against gays and lesbians into law, removing the dignity and status of the word “marriage” without any legitimate reason for doing so.

But the true genius of Judge Reinhardt’s approach is in the appeal to Justice Kennedy, the swing vote needed to affirm the appellate court’s holding. By giving the Supreme Court a narrower ground on which to affirm – and by using Kennedy’s own logic and language from Romer – the appellate court just gave the Supremes a way to avoid deciding the global issue of marriage equality – at least for now. They have only to decide that once the right to marry exists (and perhaps especially if it exists as a matter of state constitutional law), then a pretty damn good reason is needed to take it away.

Will this work? Who knows? But the odds of success just went way up – if only for Californians. The rest of us would benefit from the demise of Prop 8, though, too. About one in nine Americans lives in California. If the tipping point wasn’t already reached with the marriage equality victory in New York, a win in California should pretty much seal the deal.

Image, top: AFER attorney Ted Olson (left) at a press conference discussing today’s decision. Image by Edward Lawrence via Twitter.


Were he born 10,000 years ago, John Culhane would not have survived to adulthood; he has no useful, practical skills. He is a law professor who writes about various and sundry topics, including: disaster compensation; tort law; public health law; literature; science; sports; his own personal life (when he can bear the humanity); and, especially, LGBT rights and issues. He teaches at the Widener University School of Law and is a Senior Fellow at the Thomas Jefferson School of Population Health.

He is also a contributor to Slate Magazine, and writes his own eclectic blog. You can follow him on Facebook and Twitter if you’re blessed with lots of time.

John Culhane lives in the Powelton Village area of Philadelphia with his partner David and their twin daughters, Courtnee and Alexa. Each month, he awaits the third Saturday evening for the neighborhood Wine Club gathering.

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OPINION

‘I Hope You Find Happiness’: Moskowitz Trolls Comer Over Impeachment Fail

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April 24, 2024

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U.S. Rep. Jared Moskowitz (D-FL) is mocking House Oversight Committee Chairman Jim Comer over a CNN report revealing the embattled Kentucky Republican who has been alleging without proof President Joe Biden is the head of a vast multi-million dollar criminal bribery and influence-peddling conspiracy, has given up trying to impeach the leader of the free world.

CNN on Wednesday had reported, “after 15 months of coming up short in proving some of his biggest claims against the president, Comer recently approached one of his Republican colleagues and made a blunt admission: He was ready to be ‘done with’ the impeachment inquiry into Biden.” The news network described Chairman Comer as “frustrated” and his investigation as “at a dead end.”

One GOP lawmaker told CNN, “Comer is hoping Jesus comes so he can get out.”

“He is fed up,” the Republican added.

Despite the Chairman’s alleged remarks, “a House Oversight Committee spokesperson maintains that ‘the impeachment inquiry is ongoing and impeachment is 100% still on the table.'”

RELATED: ‘Used by the Russians’: Moskowitz Mocks Comer’s Biden Impeachment Failure

Last week, Oversight Committee Ranking Member Jamie Raskin (D-MD) got into a shouting match with Chairman Comer, with the Maryland Democrat saying, “You have not identified a single crime – what is the crime that you want to impeach Joe Biden for and keep this nonsense going?” and Comer replying, “You’re about to find out.”

Before those heated remarks, Congressman Raskin chided Comer, humorously threatening to invite Rep. Moskowitz to return to the hearing.

Congressman Moskowitz appears to be the only member of the House Oversight Committee who has ever made a motion to call for a vote on impeaching President Biden, which he did last month, although he did it to ridicule Chairman Comer.

It appears the Moskowitz-Comer “bromance” may be over.

Wednesday afternoon Congressman Moskowitz, whose sarcasm is becoming well-known, used it to ridicule Chairman Comer.

“I was hoping our breakup would never become public,” he declared. “We had such a great thing while it lasted James. I will miss the time we spent together. I will miss our conversations. I will miss the pet names you gave me. I only wish you the best and hope you find happiness.”

Watch the video above or at this link.

READ MORE: ‘Doesn’t Care if Pregnant Women Live or Die’: Alito Slammed Over Emergency Abortion Remarks

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OPINION

‘Doesn’t Care if Pregnant Women Live or Die’: Alito Slammed Over Emergency Abortion Remarks

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April 24, 2024

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The U.S. Supreme Court heard oral arguments in a case centered on the question, can the federal government require states with strict abortion bans to allow physicians to perform abortions in emergency situations, specifically when the woman’s health, but not her life, is in danger?

The 1986 federal Emergency Medical Treatment and Active Labor Act (EMTALA), signed into law by Republican President Ronald Reagan, says it can. The State of Idaho on Wednesday argued it cannot.

U.S. Solicitor General Elizabeth Prelogar, The Washington Post’s Kim Bellware reported, “made a clear delineation between Idaho law and what EMTALA provides.”

“In Idaho, doctors have to shut their eyes to everything except death,” Prelogar said, according to Bellware. “Whereas under EMTALA, you’re supposed to be thinking about things like, ‘Is she about to lose her fertility? Is her uterus going to become incredibly scarred because of the bleeding? Is she about to undergo the possibility of kidney failure?’ ”

READ MORE: Gag Order Breach? Trump Targeted Cohen in Taped Interview Hours Before Contempt Hearing

Attorney Imani Gandy, an award-winning journalist and Editor-at-Large for Rewire News Group, highlighted an issue central to the case.

“The issue of medical judgment vs. good faith judgment is a huge one because different states have different standards of judgment,” she writes. “If a doctor exercises their judgment, another doctor expert witness at trial could question that. That’s a BIG problem here. That’s why doctors are afraid to provide abortions. They may have an overzealous prosecutor come behind them and disagree.”

Right-wing Justice Samuel Alito appeared to draw the most fire from legal experts, as his questioning suggested “fetal personhood” should be the law, which it is not.

“Justice Alito is trying to import fetal personhood into federal statutory law by suggesting federal law might well prohibit hospitals from providing abortions as emergency stabilizing care,” observed Constitutional law professor Anthony Michael Kreis.

Paraphrasing Justice Alito, Kreis writes: “Alito: How can the federal government restrict what Idaho criminalizes simply because hospitals in Idaho have accepted federal funds?”

Appearing to answer that question, Georgia State University College of Law professor of law and Constitutional scholar Eric Segall wrote: “Our Constitution unequivocally allows the federal gov’t to offer the states money with conditions attached no matter how invasive b/c states can always say no. The conservative justices’ hostility to the spending power is based only on politics and values not text or history.”

Professor Segall also served up some of the strongest criticism of the right-wing justice.

READ MORE: ‘They Will Have Thugs?’: Lara Trump’s Claim RNC Will ‘Physically Handle the Ballots’ Stuns

He wrote that Justice Alito “is basically making it clear he doesn’t care if pregnant women live or die as long as the fetus lives.”

Earlier Wednesday morning Segall had issued a warning: “Trigger alert: In about 20 minutes several of the conservative justices are going to show very clearly that that they care much more about fetuses than women suffering major pregnancy complications which is their way of owning the libs which is grotesque.”

Later, predicting “Alito is going to dissent,” Segall wrote: “Alito is dripping arrogance and condescension…in a case involving life, death, and medical emergencies. He has no bottom.”

Taking a broader view of the case, NYU professor of law Melissa Murray issued a strong warning: “The EMTALA case, Moyle v. US, hasn’t received as much attention as the mifepristone case, but it is huge. Not only implicates access to emergency medical procedures (like abortion in cases of miscarriage), but the broader question of federal law supremacy.”

READ MORE: ‘Blood on Your Hands’: Tennessee Republicans OK Arming Teachers After Deadly School Shooting

 

 

 

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Gag Order Breach? Trump Targeted Cohen in Taped Interview Hours Before Contempt Hearing

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April 24, 2024

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Hours before his attorneys would mount a defense on Tuesday claiming he had not violated his gag order Donald Trump might have done just that in a 12-minute taped interview that morning, which did not air until later that day. It will be up to Judge Juan Merchan to make that decision, if prosecutors add it to their contempt request.

Prosecutors in Manhattan District Attorney Alvin Bragg’s office told Judge Juan Merchan that the ex-president violated the gag order ten times, via posts on his Truth Social platform, and are asking he be held in contempt. While the judge has yet to rule, he did not appear moved by their arguments. At one point, Judge Merchan told Trump’s lead lawyer Todd Blanche he was “losing all credibility” with the court.

And while Judge Merchan directed defense attorneys to provide a detailed timeline surrounding Trump’s Truth Social posts to prove he had not violated the gag order, Trump in an interview with a local television station appeared to have done so.

READ MORE: ‘They Will Have Thugs?’: Lara Trump’s Claim RNC Will ‘Physically Handle the Ballots’ Stuns

The gag order bars Trump from “commenting or causing others to comment on potential witnesses in the case, prospective jurors, court staff, lawyers in the district attorney’s office and the relatives of any counsel or court staffer, as CBS News reported.

“The threat is very real,” Judge Merchan wrote when he expanded the gag order. “Admonitions are not enough, nor is reliance on self-restraint. The average observer, must now, after hearing Defendant’s recent attacks, draw the conclusion that if they become involved in these proceedings, even tangentially, they should worry not only for themselves, but for their loved ones as well. Such concerns will undoubtedly interfere with the fair administration of justice and constitutes a direct attack on the Rule of Law itself.”

Tuesday morning, Trump told ABC Philadelphia’s Action News reporter Walter Perez, “Michael Cohen is a convicted liar. He’s got no credibility whatsoever.”

He repeated that Cohen is a “convicted liar,” and insisted he “was a lawyer for many people, not just me.”

READ MORE: ‘Old and Tired and Mad’: Trump’s Demeanor in Court Detailed by Rachel Maddow

Since Cohen is a witness in Trump’s New York criminal case, Judge Merchan might decide Trump’s remarks during that interview violated the gag order, if prosecutors bring the video to his attention.

Enter attorney George Conway, who has been attending Trump’s New York trial.

Conway reposted a clip of the video, tagged Manhattan District Attorney Bragg, writing: “cc: @ManhattanDA, for your proposed order to show cause why the defendant in 𝘗𝘦𝘰𝘱𝘭𝘦 𝘷. 𝘛𝘳𝘶𝘮𝘱 should not spend some quiet time in lockup.”

Trump has been criminally indicted in four separate cases and is facing a total of 88 felony charges, including 34 in this New York criminal trial for alleged falsification of business records to hide payments of “hush money” to an adult film actress and one other woman, in an alleged effort to suppress their stories and protect his 2016 presidential campaign, which experts say is election interference.

Watch the video below or at this link.

READ MORE: ‘Blood on Your Hands’: Tennessee Republicans OK Arming Teachers After Deadly School Shooting

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