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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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News

‘Wants a Global Stage’: Trump’s ‘Power Move’ Fizzles as China’s Xi Blows Off Inauguration

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16 mins ago

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December 13, 2024

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No foreign head of state has attended the inauguration of any U.S. President, at least not in modern recorded times, but this week, President-elect Donald Trump invited the President of China to Washington, D.C. for the January 20, 2025 event. His invitation has been rebuffed.

“This is a power move to intimidate the Chinese leader—if he declines, it’s disrespectful, and Trump will take it personally,” Fox News host Jesse Watters trumpeted on Wednesday, praising the President-elect (video below). “And if he accepts, he’ll be forced to observe President Trump at his most powerful moment with all the presidential pageantry America can muster. You put Xi Jinping in a subservient position, plus you can spy on him the whole time he’s in D.C.”

According to a Trump advisor, CNN reports, the President-elect “is very eager to have world leaders at the inauguration,” and “wants a global stage” for his inauguration. Trump broke 152 years of precedent by not attending the inauguration of President Joe Biden, his successor in 2021.

But President Xi appears not to be worried about appearing to be “disrespectful.”

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“Chinese President Xi Jinping is not expected to travel to Washington next month as an inauguration guest of President-elect Donald Trump, according to two sources familiar with the planning,” CBS News reported Friday. “CBS News was first to report that Trump had personally invited Xi to the swearing-in ceremony shortly after Election Day.”

CBS also reports that Trump’s “invitation to Xi, which was conveyed outside of formal diplomatic channels, took both Beijing and U.S. allies by surprise. Chinese officials who are accustomed to strict protocol and keenly aware of power dynamics in the US-China relationship were left wondering about Mr Trump’s intent.”

Calling the invitation “an exceptionally rare offer extended to the communist leader of one of America’s chief geopolitical rivals,” CNN reports that Trump has been “eager to turn his inauguration into a global event,” and “is personally extending invitations to some foreign leaders, including heads of state that have clashed with the United States in the recent past.”

Among the list of foreign leaders Trump has invited are several far-right authoritarians.

“El Salvador’s President Nayib Bukele, Italian Prime Minister Giorgia Meloni and Argentinean President Javier Milei have also been invited by Trump or his team, sources confirmed to CNN. All three are close allies of Trump who have also shaken the nerves of the US and its allies at times for their embrace of strongman tactics and their far-right politics.”

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“The offers to attend his Washington fêting have been mostly informal, a person with knowledge of the conversations told CNN, and have sometimes come in passing during discussions over the phone about other matters. The person also said that some invitations have gone through back channels, not directly leader-to-leader, CNN also reports. “Trump has also dictated written invitations as well, a source familiar with the matter said, and had his team send them to foreign leaders.”

Newsweek adds that Trump is also considering inviting far-right authoritarian and Christian nationalist Viktor Orbán, the Hungarian Prime Minister, to his inauguration.

The Bulwark wants to know “what this invitation” to China’s President Xi “signifies for America’s relations with its allies in Asia. How does one think the Japanese, Koreans, Filipinos, and Taiwanese received the news about this unprecedented invitation?”

“Another pertinent question is: What does Trump think he’s doing? Is this just more evidence of his insatiable desire to be at the center of world attention? Or is it something else?”

Watch the video below or at this link.

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Image: Public domain via Wikimedia Commons 

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Trump Commerce Pick’s Firm to Pay Millions for Federal Law Violations

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2 hours ago

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December 13, 2024

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The U.S. Securities and Exchange Commission has charged a top financial services firm led by President-elect Donald Trump’s nominee to become Secretary of Commerce with violating federal law, according to multiple reports.

Cantor Fitzgerald, led by its CEO and chairman Howard Lutnick, was charged by the SEC with “violating laws related to disclosures by so-called blank-check companies before they raise money from the public,” CNBC reports. “The SEC said that Cantor agreed to settle the case by saying the firm would not violate the relevant securities laws again and pay a $6.75 million civil penalty.”

Lutnick, a “major Republican donor, who donated millions to Trump’s campaign,” according to NPR, also serves as the co-chair of Trump’s presidential transition team. He was awarded that honor just two weeks after hosting a fundraiser for Trump at his home in the Hamptons that raised $15 million.

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“Among the roughly 130 people who dined under an air-conditioned tent were some of Donald Trump’s wealthiest supporters, including the billionaire hedge-fund financier Bill Ackman, who sat next to the former president, and Omeed Malik, the president of another fund, 1789 Capital,” The New York Times reported in August.

Lutnick, a cryptocurrency supporter, was described as “pugnacious” by The Financial Times this week in an article titled, “The criminal’s ‘go-to cryptocurrency’ has a new friend in the White House.”

“Howard Lutnick has defended the stablecoin company which has been used by gangs and US adversaries,” FT reported, sharing how he “regaled an audience of crypto devotees in Nashville with tales of his early days exploring the world of digital currencies.”

“’I met every criminal who’s now in prison,’ the 63-year-old joked, referring to his encounters with various youthful crypto executives now serving lengthy jail sentences for fraud.”

CNBC also reports the settlement is similar to one affecting became a Trump-related business.

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“Cantor’s settlement echoes an $18 million settlement another blank-check firm, Digital World Acquisition Corp., agreed to pay to the SEC in July 2023 after being charged with fraud for failing to disclose to investors that DWAC had extensive merger discussions with Trump’s then-private social media company, Trump Media. DWAC merged with Trump Media earlier this year.”

Before Election Day, Lutnick promoted the debunked conspiracy theory that vaccines cause autism, and suggested children who are vaccinated may not be “fine,” during a CNN interview (below). He also stated that Robert F. Kennedy Jr.—who some describe as an anti-vaxxer and has said there are no vaccines that are safe and effective—would not be Trump’s nominee to head Health and Human Services (HHS), a prediction that turned out to be wrong.

Watch the video below or at this link.

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Image via Reuters

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‘Bad Idea’: Trump’s Plan to Cut Vaccines He Deems ‘Dangerous’ Met With Concern by Experts

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19 hours ago

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December 12, 2024

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Saying he will be the one to decide—in consultation with anti-vaccine activist Robert F. Kennedy Jr.—which vaccines the federal government should cut, Donald Trump on Thursday again invoked the false and widely debunked conspiracy theory that links autism to the life-saving drugs. The President-elect’s remarks were met with concern and condemnation.

“When asked in an interview for TIME’s 2024 Person of the Year whether he would approve of an end to childhood vaccination programs, Trump said he would have a ‘big discussion’ with Robert F. Kennedy Jr.,” TIME magazine reported Thursday, noting Trump has nominated RFK Jr., an attorney who has no medical training or experience leading a massive organization, to run the U.S. Department of Health and Human Services (HHS).

“The autism rate is at a level that nobody ever believed possible,” Trump told TIME, which debunked his remarks in its reporting. “If you look at things that are happening, there’s something causing it.”

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Reuters also reported, “Trump says [he] could get rid of some vaccinations ‘if I think it’s dangerous.'”

“When asked if the discussion could result in his administration getting rid of some vaccinations, Trump said: ‘It could if I think it’s dangerous, if I think they are not beneficial, but I don’t think it’s going to be very controversial in the end.'”

Like RFK Jr., Trump has no medical training or background.

While “Trump did not explicitly say in the interview that vaccines cause autism,” which it classified as “a false claim that traces back to a retracted study from the 1990s,” TIME reports that when “pressed on the issue, Trump said his administration will complete ‘very serious testing,’ after which ‘we will know for sure what’s good and what’s not good.'”

Dr. Ashish Kumar Jha is a physician, the Dean of the Brown University School of Public Health, and served as the Biden White House Coronavirus Response Coordinator. He characterized Trump’s remarks that he will speak with RFK Jr. and possibly cut some vaccines, as an “extraordinarily bad idea.”

“RFK jr doesn’t seem to understand the data on vaccines,” Dr. Jha wrote. “He should have no role in deciding which vaccines should be available, recommended.”

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Dr. Priya Pal of the Washington University School of Medicine in St. Louis, Division of Infectious Diseases, commenting on Trump’s remarks, referenced creators of some of the most important vaccines in history: “Never could Pasteur, Salk, Jenner, Sabin have imagined people celebrating the return of childhood diseases that they and others worked so hard to prevent.”

Dr. Annie Andrews, a pediatrician, Clinical Professor of Pediatrics at George Washington University in Washington, D.C., a Senior Advisor to Everytown for Gun Safety and Moms Demand Action, and the CEO and founder of Their Future, Our Vote. She responded to the news by snarking, “Congratulations preventable infectious diseases!”

Infectious disease physician Apu Akkad, an Assistant Professor of Clinical Medicine wrote: “Wow. This sounds hugely problematic. RFK has no business deciding which vaccines should and shouldn’t be used — most especially without first gathering further data.”

TIME also dove in to Trump’s allegation about the perceived rise in autism.

“It’s true that autism is diagnosed much more frequently now than in the past—but not because vaccines are causing the condition. Researchers have explored possible reasons for the uptick, including rising parental ages and environmental triggers. But much of the increase, research suggests, stems from changes to diagnostic criteria, widespread awareness of the condition, and improvements in screening. Detection jumps have been particularly steep among children of color, girls, and young adults, all of whom have historically been diagnosed less frequently.”

Robert F. Kennedy Jr. has stated he believes “There’s no vaccine that is, you know, safe and effective.”

Watch the video above or at this link.

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Image via Reuters

 

 

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