Some Thoughts On Strauss v. Horton

Here are my thoughts about the California Supreme Court's decision in the Prop. 8 case. Needless to say, I speak only for myself, and not for my partners, past or present clients, or anyone else.

This was not a case about same-sex marriage. Instead, the Court went out of its way to reaffirm that the doctrinal holdings of the Marriage Cases remain intact. Thus, Strauss v. Horton leaves unchanged the rule set forth in that case that discrimination on the basis of sexual orientation must satisfy "strict scrutiny."

Instead, the decision is about how, and under what circumstances, the California Constitution can be changed. Here the plaintiffs were facing an uphill battle. Given prior decisions upholding constitutional amendments that limited rights in a number of respects (e.g., reinstating the death penalty, eliminating the state's version of the exclusionary rule, eliminating affirmative action), it was pretty clear before Strauss v. Horton that the constitution did not prohibit such initiatives. Thus, the Court's reaffirmation of the principle that limits constitutional revisions to changes in the constitutional structure or plan was solidly grounded in existing law. In contrast, there is very little support, other than snippets from a few decisions, for the converse idea: that rights-limiting amendments are impermissible.

There were, moreover, three quite practical reasons for finding the opposing view unappealing. First, it's difficult to see how rights that had only been a part of the California Constitution for less than a year were so fundamental a part of the state constitution that they couldn't be changed by the electorate. Second, a rule that made judicial decisions that expand rights effectively unchangeable by the electorate might make courts much more reluctant to read new rights into the California Constitution. THird, it's difficult to draw principled distinctions among rights to demarcate those rights that can be changed by an amendment and those rights that could only be limited by a revision.

All in all, the majority opinion is careful, scholarly and respectful of the opposing interests and views at stake. The Court has every reason to feel that it has undertaken an important job and done it well.

The end result is to return the issue of same-sex marriage to the political process. This is not a bad thing. Whatever one might think of the initiative process, same-sex marriage is perfectly suited for direct democracy. Unlike many other initiatives, the issue is simple and understandable.

No one who can read the political leaves doubts that same-sex marriage will be legal sooner or later. Its triumph is inevitable. It will be far better in the long run to achieve that victory through the ballot box than through the courts.

New Federal Court Challenge To Prop. 8

Ted Olson v. Ken Starr? This should be interesting. The news story is here.

ps. Here is a link to the complaint.

Reactions to The Prop. 8 Case

Rick Hasen's is here. We'll post more as articles become available. Here is the article from the San Francisco Chronicle; here is the article from the Los Angeles Times; here is the article from the Sacramento Bee; and here is the article from the New York Times.

No Surprise

Prop. 8 upheld, existing marriages valid--or so says SF Gate.

ps. Five Justices joined the majority opinion by the Chief Justice. Justice Kennard wrote a separate concurrence, but joined in the majority opinion. Justice Werdegar concurred in the result, but wrote a separate concurrence explaining her view of the revision issue. Justice Moreno dissented, expressing the view that Prop. 8 was invalid. So the vote is 6-1 on the validity of Prop. 8 and 7-0 in favor of upholding existing marriages.

The opinions total 186 pages, so they will take a while to digest. They can be found here.

Prop. 8 Decision Tomorrow

The Prop. 8 decision will be available on the Supreme Court's website (here) at 10:00 am tomorrow. The consensus prediction of the media: upholding Prop. 8 while saving the marriages performed between the Court's decision in May in the Same-Sex Marriage Cases and election day.

Dan Walters On A Prop. 8 Rerun

Dan Walters of the Sacramento Bee has this column about a potential re-run of the Prop. 8 campaign.

First Reports On The Prop. 8 Arguments

Here is the New York Times; here is Bob Egelko in the San Francisco Chronicle; and here is the article from the Los Angeles Times.

Link to Live Coverage Of Prop. 8 Argument

Here is a link of live coverage of the Prop. 8 arguments, happening now.

Vik Amar's Articles on Proposition 8

Vik Amar and Alan Brownstein, who both teach at UC Davis Law School, have written a four-part article on the Prop. 8 cases. The pieces, available on FindLaw, appear here, here, here and here. They are fairly skeptical about the petitioners' revision arguments, but use the Attorney General's brief (in Part IV) as a springboard for some interesting observations about the role of state constitutions.

Prop. 8 Argument Scheduled For March 5,

The California Supreme Court has scheduled argument in the Prop. 8 cases for March 5, from 9:00 am to noon. Here is an article by Bob Egelko. The date is not yet on the Court's website.

Who Gave For And Against Prop. 8?

The San Francisco Chronicle reports here, complete with a link to a database of contribution info.

Bob Egelko On The Amicus Briefs

Here is an article by Bob Egelko, of the San Francisco Chronicle, summarizing the amicus briefs in the Prop. 8 cases.

Answers To Amicus Briefs Filed In Proposition 8 Case

Answers to the amicus briefs have been filed in the Proposition 8 cases. Here is the one filed on behalf of San Francisco and its co-parties (which Howard Rice assisted in drafting); here is the one filed by the Strauss plaintiffs; here is the one filed by the Attorney General; and here is the one filed by the Intervenors.

Is Jerry Brown Helping Or Hurting The Case Against Proposition 8?

Peter Scheer poses the question in this article from the Sacramento Bee.

Proposition 8 Amicus Briefs

The amicus briefs in the Proposition 8 cases are starting to come in. Here is the first, from the Beverly Hills Bar Association. Here is one from six Professors of Law in support of Prop. 8; here is one from various labor organizations against the measure; here is one on the same side from a group of Sacramento lawyers; and here is a brief filed by Equal Rights Advocates. None of these briefs are currently available on the California Supreme Court's web-site.

ps. Here are three more: one from the Family Research Council; one from the "Issues4Life Foundation"; and one (this one supporting Petitioners) from Archbishop Mark Steven Shirilau. And three more: one from the League of Women Voters and one from Jewish Family Services of Los Angeles, both supporting Petitioners, and one from the Eagle Forum, supporting Prop. 8.

pps. They keep coming in. Here's one from Catholic Answers, one from Professors of Family Law, one from California Legislators and one from the Anti-Defamation League, all supporting Petitioners. The brief filed by NOW is here; the brief filed by the California Council of Churches is here; and the brief filed by the California Labor Federation is here; the brief filed by the San Francisco Chamber of Commerce and a number of businesses, including Google, is here. All of these support petitioners, too. Here is the brief filed by the Church of the Messiah; here is the brief filed by the Campaign for California Families; and here is the brief filed by the American Center for Law and Justice, which support Prop. 8.

Finally, here is an article from the San Francisco Chronicle about the flood of amicus briefs.

City Files Reply In Proposition 8 Case

Here is the reply filed by San Francisco. other public entities and numerous couples married between the California Supreme Court's decision last May in the Marriage Cases and the election, and here are the exhibits filed by the City, et al, in support of their reply. (Note: These documents are partially mislabeled on the California Supreme Court's web-site as having been filed by the Intervenors.) Howard, Rice assisted the City in preparing these pleadings. Finally, here is a copy of the reply filed by petitioners in the Strauss case, which is also partially mislabeled on the court's website.

Prop. 8 Proponents Respond to AG

Here's the San Francisco Chronicle's account of the proponents' response to Jerry Brown's brief in the Prop. 8 cases. Here is the corresponding article from the Sacramento Bee and here is the account from the Los Angeles Times. Here is the brief itself (the one filed in the Strauss case).

Sacramento Bee Applauds Jerry Brown's Prop. 8 Position

The Sacramento Bee has penned this editorial, praising Jerry Brown's brief urging the California Supreme Court to invalidate Proposition 8. The basis: an analogy to Reitman v. Mulkey, the litigation invalidating Proposition14 (passed in 1964). There, too, the Attorney General refused to defend a discriminatory initiative that was invalidated by the California Supreme Court (and the the U.S. Supreme Court).

Bob Egelko on Jerry Brown

Veteran legal affairs reporter Bob Egelko has this interesting story on Jerry Brown's decision to oppose Prop. 8. Not surprisingly, the reaction breaks down around partisan lines--but there's a nice little bite at former AG Deukmejian for suing the Governor in People ex rel. Deukmejian v. Brown, for which he was chastised by the California Supreme Court. (We represented the State Personnel Board in the companion case, Pacific Legal Foundation v. Brown.) Here is an article from the Los Angeles Times on the AG's decision not to endorse the Petitioners' "revision" argument but to offer another, alternative basis for invalidating Proposition 8.

More Proposition 8 Briefs

Here is the right-side up version of the AG's brief, and here is the other brief filed by the proponents (they did not file one in Tyler).