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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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Ten Commandments Governor Declares No Church-State Separation in Rough Fox News Interview

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Louisiana Republican Governor Jeff Landry appeared surprised in a Friday Fox News interview when asked to defend his newly-signed law requiring the Bible’s Ten Commandments to be posted in every public school classroom throughout the state, which critics say is unconstitutional.

Speaking about the First Amendment principle of separation of church and state, which the U.S. Supreme Court has affirmed at least a half-dozen times, Landry declared: “I challenge anyone who says that to go find me those words in the First Amendment. They don’t exist.”

He went on to claim those who want to “extract” what he claims are America’s Judeo-Christian principles “out of the foundation of this country…really and truly want to create the chaos that ultimately is the demise of this nation.”

On Thursday in a signing ceremony Landry declared the Bible’s Moses is the “original lawgiver,” a claim some challenged as a cultural choice and not an accurate one, given there are others that date back earlier, to ancient Greece, Babylon,  and India.

READ MORE: ‘Ominous Opinion’: Same-Sex Marriage Targeted Again in Latest SCOTUS Ruling, Expert Warns

“You’ve heard the criticism, it seems to be pouring in. Was it still the right thing to do?” Governor Landry was asked Friday afternoon.

“I mean, I didn’t know that living the Ten Commandments is a bad way to live life,” Landry replied, not touching the obvious and likely unconstitutional nature of the legislation he proudly signed 24 hours earlier. “I didn’t know that it was so vile to obey the Ten Commandments. I think that that speaks volumes about how eroded this country has become. I mean, look, this country was, was founded on Judeo-Christian principles and every time we steer away from that we have problems in our nation. I mean, right now schools teach, basically treat kids like critters and get the Ten Commandments is something bad to put in schools? It just it’s amazing.”

The founders clearly intended to create a secular, not religious government and took great care, including in the First Amendment, to ensure no religion was favored and individuals had the right to observe any faith, multiple faiths, or none at all.

RELATED: ‘Christian Theocracy’: Ten Commandments Lawmaker Who Can’t ‘Fathom’ Outrage Gets Schooled

“For those listening right now, they’re wondering, what’s the goal?” Fox News host Sandra Smith continued. “Because it’s not as if this is going to be taught in every school and classroom. This is just being displayed on the walls. So my question to you is, how is this going to improve the school environment and the performance of kids in those schools? When Governor, I pull up the report cards of these public schools and Louisiana is struggling, I mean, it is at the bottom of the country. The education system is failing these kids. I mean, Louisiana is 43, 44th in math and reading. So is this gonna help what is a very big problem in Louisiana?”

“Look, I think it’s part and parcel for helping kids anywhere around the country, if other states followed our suits, but at the same time that we signed that bill into law, we signed a string of others assign 20 bills, including this one, to reform Louisiana schools.”

Experts note that the U.S. Supreme Court struck down a similar law in 1980.

Sandra Smith’s remarks about Louisiana failing are accurate. According to U.S. News and World Report, Louisiana ranks 47th in education, 50th in crime, 49th in the economy, 46th in health care, and overall, it ranks last, at number 50.

Watch the videos above or at this link.

RELATED: ‘Desperately Needed’: Trump Wants ‘Revival’ of Religion and Ten Commandments in Classrooms

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‘Ominous Opinion’: Same-Sex Marriage Targeted Again in Latest SCOTUS Ruling, Expert Warns

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In a 6-3 decision along partisan lines the right-wing justices on the U.S. Supreme Court once again targeted the landmark 2015 Obergefell same-sex marriage decision, leading liberal Justice Sonia Sotomayor to sound “alarm bells” on marriage equality in her dissent a legal expert says, warning that they may try to “roll it back.”

The case involves Sandra Muñoz, a U.S. citizen who argued that the federal government’s denial of a visa for her husband, who lives in El Salvador, deprives her of her constitutionally protected right to liberty.

The right-wing majority in a decision written by Justice Amy Coney Barrett ruled: “A citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country.”

Friday’s ruling “undermines same-sex marriage,” Bloomberg Law reports Justice Sotomayor’s dissent warns.

Slate senior writer Mark Joseph Stern has covered the courts since 2013, and is the author of a 2019 book on the Roberts Supreme Court.

“Justice Sotomayor, in dissent, accuses the conservative supermajority of cutting back the rights guaranteed in Obergefell—the same-sex marriage decision—and of repeating ‘the same fatal error’ it made in Dobbs,” Stern writes. “A very ominous opinion.”

READ MORE: ‘Desperately Needed’: Trump Wants ‘Revival’ of Religion and Ten Commandments in Classrooms

The “fatal error” in Dobbs was ignoring precedent.

“Justice Sotomayor says the burden of today’s decision will ‘fall most heavily’ on same-sex couples, many of whom cannot safely reside in the non-citizen’s home country,” Stern adds. “Her dissent is littered with alarm bells about Obergefell.”

He points to this from Sotomayor’s dissent, a citation from the Obergefell decision:

“A traveler to the United States two centuries ago reported that ‘‘[t]here is certainly no country in the world where the tie of marriage is so much respected as in America.’ ‘ ”

“Today,” Sotomayor continued, “the majority fails to live up to that centuries-old promise. Muñoz may be able to live with her husband in El Salvador, but it will mean raising her U. S.-citizen child outside the United States. Others will be less fortunate. The burden will fall most heavily on same-sex couples and others who lack the ability, for legal or financial reasons, to make a home in the noncitizen spouse’s country of origin.”

Again quoting Obergefell, she adds, “For those couples, this Court’s vision of marriage as the ‘assurance that while both still live there will be someone to care for the other’ rings hollow.”

Stern warns: “I think Justice Sotomayor is clearly correct that the Supreme Court’s gratuitous attack on the constitutional rights of married couples in Muñoz—especially same-sex couples—suggests that the conservative justices hate Obergefell and may roll it back.”

Sotomayor began her dissent also with a quote from Obergefell: “The right to marry is fundamental as a matter of history and tradition.”

READ MORE: ‘Fact Checking His Delusions’: Trump’s Falsehoods May Not Be Lies Anymore, Critics Warn

She warns that the right-wing majority could have appropriately issued a narrow ruling but instead chose to hand down a broad decision:

“The majority could have resolved this case on narrow grounds under longstanding precedent,” she writes. “Instead, the majority today chooses a broad holding on marriage over a narrow one on procedure.”

Justice Sotomayor again points to same-sex marriage:

“Muñoz may be able to live in El Salvador alongside her husband or at least visit him there, but not everyone is sovereign lucky. The majority’s holding will also extend to those couples who, like the Lovings and the Obergefells, depend on American law for their marriages’ validity. Same-sex couples may be forced to relocate to countries that do not recognize same-sex marriage, or even those that criminalize homosexuality.”

She also noted, “The constitutional right to marriage has deep roots,” and “The constitutional right to marriage is not so flimsy,” while warning “the majority departs from longstanding precedent and gravely undervalues the right to marriage in the immigration context.”

Two years ago almost to the day, when the Supreme Court handed down the Dobbs decision overturning Roe v Wade and stripping away the constitutional right to abortion, Stern warned the Court, especially Justice Thomas, would come for contraception, same-sex intimacy, and same-sex marriage:

Two years before Dobbs, Stern also warned Justice Thomas was targeting same-sex marriage, writing that “Thomas (joined by Alito) wrote a jaw-dropping rant taking direct aim at Obergefell and suggesting that SCOTUS must overturn the right to marriage equality in order to protect free exercise.”

READ MORE: ‘Christian Theocracy’: Ten Commandments Lawmaker Who Can’t ‘Fathom’ Outrage Gets Schooled

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‘Desperately Needed’: Trump Wants ‘Revival’ of Religion and Ten Commandments in Classrooms

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Jumping on Louisiana’s controversial and likely unconstitutional new law mandating posters of a specific version of the Bible’s Ten Commandments be displayed in every public school classroom, Donald Trump overnight declared the nation “desperately” needs a religious “revival” and called for the religious text to be placed in classrooms across America.

Critics point out that the U.S. Supreme Court in 1980 found a similar law unconstitutional.

“The high court found that the law had no secular purpose but rather served a plainly religious purpose,” the Associated Press reports.

And while some lawmakers are insisting it is a historical document, remarks by Republican Governor Jeff Landry and the bill’s co-author, Republican state Rep. Lauren Ventrella, would appear to undermine that defense.

RELATED: ‘Christian Theocracy’: Ten Commandments Lawmaker Who Can’t ‘Fathom’ Outrage Gets Schooled

“I love the Ten Commandments in public schools, private schools, and many other places, for that matter. Read it — how can we, as a nation, go wrong??? This may be, in fact, the first major step in the revival of religion, which is desperately needed, in our country. bring back TTC!!! MAGA2024” Trump wrote on Truth Social in his all-caps post.

Some critics have been noting Trump has violated many if not most of the Ten Commandments. Some have listed the Ten Commandments and what they say are Trump’s actions in comparison to them.

MSNBC‘s Steve Bennen observed, “Trump is touting the Ten Commandments, despite the fact that he’s broken most of them. No graven images? Check. Honoring the Sabbath? Check. No adultery? Check. No stealing? Check. No bearing false witness? Big ol’ check. No coveting a neighbor’s wife? Check.”

Retired North Carolina Supreme Court justice and former Republican gubernatorial candidate Judge Bob Orr wrote: “The GOP and Trump want parents controlling the books that are in schools NOT educators…but their ok with educators being responsible for teaching children to follow the Ten Commandments – a responsibility that belongs at home with the parents and the church.”

Earlier this week, before Trump’s declaration, The Lincoln Project posted a video on Trump’s relationship to the religious document.

Watch below or at this link.

READ MORE: ‘Fact Checking His Delusions’: Trump’s Falsehoods May Not Be Lies Anymore, Critics Warn

 

 

 

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