Thursday, December 09, 2010

Perry v. Schwarzenegger v. Bush v. Gore

By Mike Dorf

As promised earlier in the week, I've now watched and listened to the oral argument in Perry v. Schwarzenegger.  After a couple of quick observations, I'll come to the point that inspires the title for today's post:

1) The lawyers all acquitted themselves quite well.  The panel gave Robert Tyler--the lawyer for the Imperial County Deputy Clerk who sought to intervene--a hard time for two gaps in his knowledge of the case, but on both occasions I thought the judges were a bit unfair.  Judge Hawkins called Tyler out for not knowing whether the County Clerk (as opposed to the deputy) was elected or appointed.  Tyler at first said he didn't know, leading to his chastisement, then he said he thought she was appointed, then said he didn't know who appointed her, and then at the end of his argument apologized because one of his associates had handed him a note saying she was elected after all.  This created some awkward moments but they were all for show.  Tyler was right that it doesn't matter whether the Clerk is appointed or elected.   Judge Reinhardt also gave Tyler a bit of a tough time for guessing--in answer to another question from Judge Hawkins--that a deputy district attorney has the same degree of autonomy relative to the District Attorney as a Deputy Clerk has relative to a County Clerk.  "If you don't know, say so," Judge Reinhardt said, which is sound advice as a general matter but here too, the underlying point was irrelevant.  Nothing in the case turns on the nature of the duties of a deputy district attorney.

2) The case should be exhibit A for cameras in the Supreme Court.  I'm sure nearly all of the viewing audience was baffled by the first hour of the argument--which focused on the standing questions--but for those of us who find this stuff interesting, it was great to have the live audiovisual feed, preserved on the web. The oral argument looked to me no different from anything I've seen in the past.  None of the lawyers and none of the judges appeared to be doing anything differently from their usual m.o.

3) And now my main point: The plaintiffs are arguing on appeal that Judge Walker's ruling is narrow in scope, binding only on the California Governor, Attorney General, two other state officials, and the County Clerks of Alameda and Los Angeles counties.  That may seem odd, given that usually victorious parties want the ruling they have obtained to be binding as broadly as possible.  But the fewer people who are bound by the ruling, the fewer people have standing to appeal.  According to David Boies, the way the district court judgment will become effective statewide is that after the stay on the mandate is lifted (presumably by the Ninth Circuit), the Attorney General or the Governor will go into state court and seek an order binding all of the county clerks and other state officials.  This is a very peculiar position for a number of reasons:

a) It was risky.  As Judge Reinhardt pointed out, if the state election had come out the other way, perhaps the new AG and Governor would not seek to bind the county officials in this way.

b) It's not at all clear why the Governor and AG need the assistance of the California courts to accomplish this task.  If, as the plaintiffs contend, on matters of marriage, county officials are under the direction of the statewide officials, shouldn't the Governor or AG be able to issue some sort of administrative order to local officials directing them to start issuing same-sex marriage licenses?

c) If the Governor and AG can do this in response to losing (after not putting up a fight) in the district court, couldn't they have done that without even a lawsuit being brought?  Boies gave the best answer he could here, which was to say that they had chosen not to--thus, even now the Governor and the AG are enforcing Prop 8 insofar as they are not directing local officials to issue same-sex marriage licenses.  But Boies did not say--and I think his theory of the case precludes him from saying--that the Governor and AG lack the authority to order county officials to issue marriages licenses right now.  And if that's his theory, then it's hard to know why that doesn't run up against the objection (raised by Judge Smith) that the Governor and AG are attempting to exercise a power that California law denies them--namely, to nullify a ballot initiative.

d) For me the most tantalizing moment during the discussion of the procedural issues came when Judge Reinhardt almost asked the following question: Why didn't the plaintiffs sue all of the county clerks?  Boies acknowledged that this was an option.  Reinhardt said that in light of the high level of competence of Boies and Olson, this could not have been an inadvertent oversight.  But then he backed off from asking the why question.  Boies must have sensed that Reinhardt was still wondering about it, but all he said in response was that other cases have proceeded in the same manner.

Boies cited Romer v. Evans and the California state court litigation over same-sex marriage, but I had another case in mind: Bush v. Gore.  There, recall that the Gore strategy was to seek recounts only in select counties with clear Democratic majorities.  The Florida Supreme Court rejected the Gore proposal and instead ordered a (limited) statewide recount (later halted by the SCOTUS), but in attempting to cherry-pick counties for recounting, the Gore team--including Boies--ceded much of the moral high ground.  They could no longer argue credibly that they simply wanted an accurate count.  I don't think that seeking a statewide recount from the beginning necessarily would have led to a different result, but the attempt to game the recount certainly didn't help.

Fast forward to the Boies/Olson strategy of only suing two county Clerks.  Could this have been a similar tactical choice right from the beginning, aimed at engineering precisely the situation we now have, in which a district court ruling of nominally limited scope ends up being both effective statewide and unreviewable on the merits?  If so, I've got to say that this strikes me as too clever by half.  Boies and Olson had a claim to the moral high ground in bringing this case when mainstream gay rights litigators (and their allies, including me) had been timid.  By directly making the argument that Prop 8 denies due process and equal protection, they signaled a refreshing willingness to make the strongest claim possible, and to let the chips fall where they may.  But in apparently manipulating the procedural doctrines for advantage, they sacrifice at least some of that moral high ground, making themselves look no less the cautious schemers than the organizations whose warnings they ignored in filing suit when and how they did.

35 comments:

mgarelick said...

It doesn't really make sense to me that the question of standing for the Imperial County Deputy Clerk turns on whether she is "bound" by Judge Walker's injunction. Her real obstacle to standing is that she has no legally relevant stake in the outcome. Suppose I were a public servant explicitly bound by some injunction. Suppose I had no opinion whatever on the subject matter of the case but I objected to some logical fallacy committed by the judge. Would I have standing to appeal the injunction merely because I was offended by the legal reasoning?

The proponents (NOM, represented by Cooper) have a more sensible claim to standing, resting on an analogy with the governor (or, as in Karcher, the legislature), who, standing in the stead of "the people," has an interest in the enactment itself. I suppose that if the proponents don't actually have that status under California law, then due regard for the gravity of Article III jurisdiction would not let us punt the standing issue, much as that result (standing yes, reversal no) would strengthen the perceived legitimacy of the outcome that I prefer.

Nick said...

It seems to me quite clear why "only" two clerks were chosen: there's no actionable suit against the clerks in the other counties.

This is not a class action lawsuit. It's a lawsuit in which two same-sex couples allege denial of a marriage license by two clerks in two counties. They didn't go to every county in the state, and they didn't have to. They sued only the clerks that denied them licenses.

What's hard to understand about that?

Gabriel said...

You're overlooking the obvious. The County Clerks from Alameda and Los Angeles were sued because they refused to issue marriage licenses to couple Kristin Perry and Sandra Steir and couple Paul Katami and Jeffrey Zarrillo. Naming Alameda and Los Angeles in the lawsuit was about making sure of the plaintiffs' standing, not anyone else's.

Michael C. Dorf said...

1) mgarelick: The plaintiffs' position is that being bound is a necessary condition for clerk standing, not a sufficient one. They also argue that clerks lack a concrete and particularized injury. As for the proponents, yes they would have a stronger claim to standing--except for the Supreme Court dicta in Arizonans for Official English, which casts serious doubt on it.

2) Nick and Gabriel: It's notable that David Boies did NOT give the answer you give. And even if he had, it would not have been a sufficient answer. For one thing, Judge Reinhardt wanted to know why the plaintiffs did not seek to certify a defendant class. For another, there is apparently a straightforward procedure under California law by which the other clerks could have been bound, even absent a defendant class. Judge Reinhardt asked Boies if he would be willing to take advantage of that procedure now. Boies grinned and said he'd decline. Thus it was clear to everyone watching that the plaintiffs didn't simply omit the other clerks because their clients only applied to marry in L.A. and Alameda counties; rather, for tactical reasons, the plaintiffs affirmatively sought not to bind the other clerks.

Mark said...

Very interesting piece! He is not binding other clerks so that they can still sue them in the future. And more importantly limits the fight to an army of two. To bind them all allows them all to enter the side of the defense. I hate the analogy, but this comes across like taking out one crime boss. You get the guy you can and make an example out of him, then hope that strikes enough fear into the 'bigger fish' that they change without you going after them. So here, it seems like the defendants are limited specifically to affect them all without fighting them all.

Benjamin said...

It occurred to me that Boies and Olson might be taking a very long (and large) view of things. Could it be that their entire strategy was focused not on establishing gay marriage throughout California but simply creating a federal court precedent while limiting the possibility of an eventual U.S. Supreme Court appeal? If the 9th circuit denies the appeal, the district court ruling is out there for lawyers and judges across the country to cite. Sure, it wouldn't be binding authority, but it will be ammunition. Meanwhile, there will be no U.S. Supreme Court case of this type for the foreseeable future, so the current conservative majority may not get the chance to render a death-blow to the idea of a federal constitutional right for gays to marry. Gay marriage proponents can then work their way around the country slowly building up precedent before the big showdown in the SCOTUS years from now. What happens in California is for other lawyers to worry about. Does this make sense, or am I crazy?

Joe said...

Robert Tyler came off to my uneducated eye as a bit rough and some with a more educated eye over at Volokh Conspiracy agreed, but such is a matter of opinion.

I have little desire to bring up ancient history and the situations aren't quite the same. Anyways, it was a bit striking that the conservative leaning judge appeared dubious of Prop 8 on the merits. OTOH, I came off thinking more than even money says that this will decided on standing alone anyways.

Also, totally concur on televising appellate arguments. If such a controversial case (I felt the same way when one of the election battles in California was aired & I got to see the Judge Kozinksi in action) can go off so smoothly, why not the rest?

Arne Langsetmo said...

"There, recall that the Gore strategy was to seek recounts only in select counties with clear Democratic majorities."
Is this true? The Bush v. Gore appeal concerned the contest [Fla.St. §102.168] phase. which is a state-wide issue, while the protest [Fla.St. §102.166] phase had to do with what the various counties had done.

Paul Scott said...

I think Reinhardt is wrong about the election outcome being decisive and think, but am less sure, about his and your characterizing the roll the Governor and AG will take in enforcement.

The road to uniform enforcement seems clear to me: the Registrar will issue new paper work (or rather, just reprint the paperwork they had printed during the time when same sex marriage was allowed). That will do all but the tiniest portion of the job.

The next part will be done by the various county clerks themselves, as any deputy clerk that refuses to issue a same sex license will be fired.

As a matter only of extreme refusal to follow the law by a County Clerk, then the A.G. would first order the Clerk to comply and next take that clerk to State Court to force it's compliance. Even then it is a mere formality to get an enforcement decree. It is not, as JR suggested over and over, possible to re-litigate this on the merits.

That is really no different from what is required now any time a County official refuses to follow a State law and the 9th Cir. does not need concern itself with such hypothetical situations.

The standing issue for NOM I find interesting. It seems clear that had the Governor/AG defended this at trial and then refused to pursue appeal that this would be over. This is, btw, what Obama should have done with DADT. He did his duty to defend it; he is under no obligation to continue once he loses once.

Only the refusal to defend at all has lead us to where we are - a concern raised by JR that the Governor and AG are effecting circumventing California's chosen method of enacting laws (given, however, that this is a purely State matter, I am not sure why a Federal Appeals Court should be bothered by such a concern).

On the "high ground" I sort of agree. I think the high ground is a complete loser, however, at SCOTUS. We might see 5-4 on some Romer level rational basis review, but their is no possibility I think of getting anything other than a resounding loss on heightened scrutiny (unless you have an insight into Kennedy that says otherwise).

The thing I am not getting is the concern about binding the rest of the Clerks, but that is probably just something I do not know factually. Presumably they must know that at least one Clerk would pursue this to SCOTUS, where they are likely to lose. But that seems to me unlikely since the best the supporters could do was to come up with one deputy clerk who was clearly not acting with the authority of her Clerk. Either way, such additional binding of Clerks obviously has no effect on the status of NOM. I think this is the area in which Boise/Olsen really lose the high ground. They are not responsible for the Gov/AG not defending the case. They are responsible for not allowing other County Clerks to cleanly defend the case.

On the substance, the question I find most interesting was proposed by Smith - does a State that makes this issue about nothing other than the name put itself in a worse position under rational basis review than a State that provides no benefits? Doing so really does make it clear that the only thing this is about is drawing a classification for the purpose of declaring one class inferior to the other. It is the closest thing we have to modern "separate but equal" (including that they are not, in fact, equal - though that is no fault of California). I actually expected that analogy to be drawn, since they were drawing to Loving and Griswold, but it was not.

mgarelick said...

@Dorf -- thanks, I hadn't thought about in terms of necessary and sufficient. I was impressed by Boies' intonation of the requirements for Art. III standing, but IIRC he talking at that point about the proponents.

Am I correct, though, that Imperial has never identified any "particularized injury?" All that comes to mind is the fact that 70% of the county voted for Prop. 8.

Paul Scott said...

"a) It was risky. As Judge Reinhardt pointed out, if the state election had come out the other way, perhaps the new AG and Governor would not seek to bind the county officials in this way."

I don't think so. It might be a pain, requiring more litigation, but ultimately the order does apply to the Governor and the AG. I think if they refused to follow and order a Clerk to enforce, then it would be an easy enough task (well, easy enough as any litigation is "easy") to go back to court for an enforcement of the original order.

"b) It's not at all clear why the Governor and AG need the assistance of the California courts to accomplish this task. If, as the plaintiffs contend, on matters of marriage, county officials are under the direction of the statewide officials, shouldn't the Governor or AG be able to issue some sort of administrative order to local officials directing them to start issuing same-sex marriage licenses?"

Again, I don't think so because the order would be unlawful. It would at least require more than the Governor and AG. At a minimum it would require the Registrar and may require cooperation of all of the County Clerks (though possibly not).

More importantly, politically, I think there is a significant difference between not defending a law and refusing to follow it. I do think it was a mistake to not defend it in the first instance, but it is still a very different thing from outright refusal to follow. Refusal to follow would meaning ignoring the rule of law. If this was done for one proposition, is there a legitimate line to be drawn for any other? I just can't see that step being taken. In fact, as Boise pointed out, it is not being taken. Disagree as they do with Prop 8, the Governor and the AG are following it.

AF said...

The plaintiffs' position that the decision doesn't bind other clerks might seem counterintuitive, but I believe it is correct. A court order is binding on the parties to the case. Ninth Circuit precedent is binding on courts, not public officials. So the decision would not be binding on public officials who are not parties to the case.

Of course, because Ninth Circuit precedent is binding on courts, it would be straightforward for future plaintiffs to obtain court orders binding different defendants in future cases; future courts would be bound by precedent to issue the order.

For this reason, I don't think it follows that because the governor and AG could order clerks to issue licenses after a pro-gay-marriage decision in Perry, they could just as well have done so without a lawsuit. There is a big difference between an elected official avoiding hopeless litigation by voluntarily complying with a binding federal court precedent, and an elected official choosing not to enforce a law simply because the official believes it is unconstitutional.

Along the same lines, I don't agree that plaintiff's position made the election decisive, for reasons similar to those mentioned by Paul Scott. However the registrar, individual clerks, and AG or governor would react to a pro-same-sex marriage decision in Perry, after Perry any gay couple denied a marriage license could get one through the courts.

And finally, whether or not the decision to sue only those clerks that had denied licenses to the named plaintiffs can be seen as a cynical tactical gambit aimed at eliminating standing for other clerks, those clerks will ultimately have standing to challenge the decision -- if and when they are subject to a court order requiring them to issue marriage licenses.

mgarelick said...

@Paul Scott: I think Reinhardt is wrong about the election outcome being decisive ...

The election is a good illustration of the answer to JR's problem of the Governor circumventing the initiative process. Whitman promised to appeal Walker's ruling; she lost.

The standing issue for NOM I find interesting. It seems clear that had the Governor/AG defended this at trial and then refused to pursue appeal that this would be over.

That scenario suggests this question: If proponents can ever have standing, why should it be limited to cases where the state officials won't defend -- why not include cases where the officials won't defend zealously? Whatever it is that cloaks a party with standing should be particular to the party, not to the absence of an alternative party.

Hello Sunshine said...

The post says: "According to David Boies, the way the district court judgment will become effective statewide is that after the stay on the mandate is lifted (presumably by the Ninth Circuit), the Attorney General or the Governor will go into state court and seek an order binding all of the county clerks and other state officials."

I believe that's a misinterpretation. The only reason state court action would be necessary is if a country clerk decides to disregard the governor and AG . The clerks could do so without fear of contempt from Judge Walker, since his order does not formally bind them, but it would be unlikely since the clerks are expected to come to heel.

When San Francisco issued same-sex marriage licenses in contravention of state policy, the state officials took action and stopped it. That is the proverbial exception that proves the rule.

Gray said...

Here's the answer:

SEC. 3.5. An administrative agency, including an administrative
agency created by the Constitution or an initiative statute, has no
power:
(a) To declare a statute unenforceable, or refuse to enforce a
statute, on the basis of it being unconstitutional unless an
appellate court has made a determination that such statute is
unconstitutional;
(b) To declare a statute unconstitutional;
(c) To declare a statute unenforceable, or to refuse to enforce a
statute on the basis that federal law or federal regulations prohibit
the enforcement of such statute unless an appellate court has made a
determination that the enforcement of such statute is prohibited by
federal law or federal regulations.

Article 3, Section 3.5 of the California Constitution. The Governor and the AG enforced proposition 8. When they mean "declaring unconstitutional" is basically refusing to enforce it.

Michael C. Dorf said...

Gray:
1) Are you sure that the Governor and the AG are "agencies?"

2) Even if they are, what makes you think that a provision of state law can authorize a state official to violate the federal Constitution? Under the federal Supremacy Clause, state JUDGES are expressly obligated to disregard state law that violates federal law, and it is generally thought that state executive officials have the same obligation, even absent a judicial decree. At the very least, there is doubt about the consistency of Sec. 3.5 with the Supremacy Clause.

Kent said...

Your concern over "ceding the moral high ground"seems overwrought in both of the cited situations. Florida law explicitly allowed for recount requests in individual counties. Given that the mandatory statewide machine recount had already closed the gap to within a few hundred votes, it was morally neutral (but logically necessary) to select counties more likely to produce additional Democratic votes.

Michael C. Dorf said...

A brief response to Kent and the others who have noted that FL law permitted cherry-picking of counties during the protest phase. I'm not saying that the Gore people did anything illegal. It's a matter of public perceptions--about which they were keenly aware, as evidenced by the fact that they refused to object to late absentee ballots for fear of appearing "anti-military." What I'm saying here is that the big-picture PR claim was undermined--fairly or not--by the cherry-picking.

AF said...

"What I'm saying here is that the big-picture PR claim was undermined--fairly or not--by the cherry-picking."

So then you wouldn't disagree that if the plaintiffs in Perry were criticized for "cherry-picking," that would be unfair?

Michael C. Dorf said...

AF: No. I think that if this was a deliberate strategy to engineer a district court victory that would be insulated from judicial review, then it would be fair to criticize it as cherry picking. I don't know that it was such a strategy, however, and tend to think it probably wasn't, given how many variables there were.

Michael Ejercito said...

In Olson's and Boies's defense, they have a fiduciary duty to their clients, and they are obligated to represent their clients' best interest and to make every good faith legal argument in their clients' favor, including arguments that the appeal be dismissed for lack of appellant standing.

Of course, if the appeal is dismissed for this reason, the scope of the injunction will only be limited to the named defendants, and possibly even the named plaintiffs. This will mean that other same-sex couples in California, let alone the rest of the country, will have to go file separate complaints to obtain marriage licenses and the benefits of marriage (as two couples in Oklahoma had done before this case was filed). But that is the nature of the fiduciary duties of attorneys. They must argue their client's best interests, even if it is to the detriment of similarly-situated persons.

Michael Ejercito said...

Suppose I were a public servant explicitly bound by some injunction. Suppose I had no opinion whatever on the subject matter of the case but I objected to some logical fallacy committed by the judge. Would I have standing to appeal the injunction merely because I was offended by the legal reasoning?
Anyone bound by an injunction has standing to challenge the injunction and appeal the ruling.

In some cases, injunctions may enjoin non-parties if necessary to provide the prevailing plaintiffs the relief to which they are legall entitled. For example, in Bishop v. Oklahoma (a constitutional complaint against Oklahoma's Question 711 and the federal DOMA), the attorney general is not a party. And yet, if the court finds in favor of the plaintiffs, the court would have jurisdiction to enjoin the attorney general from enforcing Question 711 against the plaintiffs. If the attorney general is enjoined, he of course has the standing to appeal.

Michael Ejercito said...

At the very least, there is doubt about the consistency of Sec. 3.5 with the Supremacy Clause.
There is no inconsistency.

It properly gives the role of determining conflicts between state and federal law to appellate courts, whose decision bind lower courts. (While trial courts can make this determination, their decisions only bind the parties. Thus, in this case, the decision declaring Proposition 8 unconstitutional does not affect the duties of the non-party county clerks, nor the state treasurer, insurance commissioner, or controller.)

Michael Ejercito said...

On the substance, the question I find most interesting was proposed by Smith - does a State that makes this issue about nothing other than the name put itself in a worse position under rational basis review than a State that provides no benefits?
Of course not.

If a state can deny all of the benefits of marriage to same-sex couples, they can deny only some, one, or none.

Furthermore, a ruling on the basis that California offered domestic partnerships would create perverse deterrents against extending benefits to same-sex couples, and would even create a perverse incentive to eliminate benefits for same-sex couples.

Michael C. Dorf said...

For Michael Ejercito (a propos only of your last comment): I commend to you the large body of literature on the duty of elected officials to conform their conduct to the Constitution, nowithstanding contrary state law, beginning with Paul Brest's classic "The Conscientious Legislator's Guide." There you will find a powerful argument for the proposition that a state cannot instruct its officials to follow state law even in the face of a very strong claim that the law violates the federal Constitution. But whether or not you are persuaded by the literature propounding a duty of non-judicial actors to make independent constitutional judgments, the very existence of that literature establishes my view that there is "doubt about the consistency of Sec. 3.5 with the Supremacy Clause."

Michael C. Dorf said...

And now I'm done with this thread, though I'll continue to read the very interesting comments.

Michael Ejercito said...

I commend to you the large body of literature on the duty of elected officials to conform their conduct to the Constitution, nowithstanding contrary state law, beginning with Paul Brest's classic "The Conscientious Legislator's Guide." There you will find a powerful argument for the proposition that a state cannot instruct its officials to follow state law even in the face of a very strong claim that the law violates the federal Constitution. But whether or not you are persuaded by the literature propounding a duty of non-judicial actors to make independent constitutional judgments, the very existence of that literature establishes my view that there is "doubt about the consistency of Sec. 3.5 with the Supremacy Clause."
The problem of non-judicial actors making independent constitutional judgments is that there will be disagreements between non-judicial actors as to what the Constitution means. If even Supreme Court justices can disagree, how much more for non-state actors?

This is why in California at least, state and local officials who are not otherwise bound by an injunction must enforce laws unless an appellate court with jurisdiction over them declared the law unconstitutional. Appellate courts are more authoritative on constitutional questions than non-judicial officials or even state actors. Note that state attorneys general, on their own, can not declare a law unconstitutional, the closest that they can do is file for a writ of mandamus or prohibition and argue against the constitutionality of the law.

mgarelick said...

@Michael Ejercito, third of three comments (2:40 pm): your reasoning may be pertinent to a due process analysis. But in an equal protection context, Judge Smith's question is quite apt. In a state like California, where same sex couples are treated very similarly to opposite sex couples, it is harder to articulate a rational basis for the treatment that is different. A state that gives no recognition whatever to s/s unions can argue (coherently, even if not persuasively) that gay couples are in fact not similar to straight couples. Prop 8, on the other hand, treats individuals who are otherwise acknowledged to be similar differently, for only the purpose of stigmatizing them.

I don't see this as a subtle or difficult point, but it's clear that Cooper misses it entirely.

Michael Ejercito said...

In a state like California, where same sex couples are treated very similarly to opposite sex couples, it is harder to articulate a rational basis for the treatment that is different. A state that gives no recognition whatever to s/s unions can argue (coherently, even if not persuasively) that gay couples are in fact not similar to straight couples. Prop 8, on the other hand, treats individuals who are otherwise acknowledged to be similar differently, for only the purpose of stigmatizing them.
Cooper does see the point.

The point is, such jurisprudence would create a perverse deterrent against extending benefits to same-sex couples, and create a perverse incentive to withdraw any existing benefits from same-sex couples.

If a law does not violate the U.S. Constitution in Oklahoma, an identical law sure does not violate that same Constitution in California.

The Supreme Court warned in Crawford v. Los Angeles Board of Education that "the purposes of the Fourteenth Amendment would not be advanced by an interpretation that discouraged the States from providing greater protection to racial minorities." (Also see Palmer v. Thompson, "To hold, as petitioners would have us do, that every public facility or service, once opened, constitutionally "locks in" the public sponsor so that it may not be dropped would plainly discourage the expansion and enlargement of needed services in the long run.")

mgarelick said...

About Crawford: without reading that entire opinion, I would hazard to guess that it may be distinguished on the basis that it concerns a remedy. It doesn't seem to implicate the core Equal Protection principle of treating similarly situated parties similarly.

The point is, such jurisprudence would create a perverse deterrent against extending benefits to same-sex couples, and create a perverse incentive to withdraw any existing benefits from same-sex couples.

That argument sounds like it would work as a defense of "separate but equal" accomodations. Suppose that one state provided secondary education for Martians but no secondary education at all for Venusians, relying on the belief that Venusians were so inferior to Martians that there was no reason to send Venusians to high school. In another state, there was a proposal that education for Martians and Venusians should be equal in content, because all solar humanoids are brethren, and the two groups had the same educational needs; but because everyone knows that Venusians and Martians are just not the same, the schools for Martians would continue to be called "High Schools" and the schools for Venusians would be called "Tall Schools." Is there a "perverse incentive" against providing secondary education for Venusians?

If a law does not violate the U.S. Constitution in Oklahoma, an identical law sure does not violate that same Constitution in California.

That sounds good, until you consider the significance of context and process. Analogy to establishment of religion: if a law in State A is adopted for the explicit purpose of advancing the glory of the Flying Spaghetti Monster, and the same text is adopted in State B for an entirely secular purpose (e.g., standards for pasta content), you could not assume that they will stand or fall together under Lemon v. Kurtzman scrutiny. Likewise, if a law can be shown to have arisen out of pure animus toward a minority group, it is not frivolous to argue that its enactment violates equal protection, even if its literal text is OK.

Michael Ejercito said...

That argument sounds like it would work as a defense of "separate but equal" accomodations.
It would only work if complete exclusion (as opposed to segregation) would be justified.
In Brown v. Board of Education and the prior segregation decisions, the Supreme Court never hinted, let alone opined that a school could completely exclude persons from public education on the basis of race.
Suppose that one state provided secondary education for Martians but no secondary education at all for Venusians, relying on the belief that Venusians were so inferior to Martians that there was no reason to send Venusians to high school. In another state, there was a proposal that education for Martians and Venusians should be equal in content, because all solar humanoids are brethren, and the two groups had the same educational needs; but because everyone knows that Venusians and Martians are just not the same, the schools for Martians would continue to be called "High Schools" and the schools for Venusians would be called "Tall Schools." Is there a "perverse incentive" against providing secondary education for Venusians?
A perverse incentive or deterrent would only exist if a court were to rule that Martians and Venusians could not be segregated because Venusians and Martians have access to public education, and that excluding Venusians from Martian public schools could be justified if Venusians were completely excluded from public education.

In other words, under such a ruling, discrimination against Venusians would be justified if it is part of a greater pattern of discrimination of Venusians.
Likewise, if a law can be shown to have arisen out of pure animus toward a minority group, it is not frivolous to argue that its enactment violates equal protection, even if its literal text is OK.
So the anti-polygamy laws in Utah (which history shows were borne from animus against Mormons) would be a violation of equal protection, even if an identical law in New York would not be so?

mgarelick said...

It would only work if complete exclusion (as opposed to segregation) would be justified.

First, let me sharpen the point by substituting "could be justified" for "would be justified." This is to clarify I'm not hypothesizing that "complete exclusion" is objectively correct, only that it is the position taken by the proposed state.

In such a hypothetical situation, State A, that consistently applies a policy of complete exclusion, would have a coherent defense to an equal protection claim. It would assert as a fact some characteristic of Venusians (e.g., low IQ) that meant that they were not similar to Martians. State B, with "separate but equal" facilities, however, would not have that defense (because they are treating Venusians and Martians as if they were of comparable intelligence). State B would be left with the defense that its policy could not be unconstitutional because it provides more benefits to Venusians than State A.

Turning to the s/s marriage question, "complete exclusion" is the position held by states with no provision at all for s/s couples. Assuming that there is no due process right to same sex marriage (i.e., limiting the discussion to equal protection), this position could be justified by showing a factual basis for treating s/s couples differently. California, on the other hand, cannot argue that the marriage ban is consistent with such a factual basis, if, in every other respect, it treats s/s couples as if they were similar.

In other words, under such a ruling, discrimination against Venusians would be justified if it is part of a greater pattern of discrimination of Venusians.

"Discrimination" per se is not an Equal Protection violation; discrimination that withstands the appropriate level of scrutiny (e.g., an age requirement for a license to drive) is not unconstitutional. My argument is that limiting all domestic benefits to heterosexual couples may have a rational basis (however wrongheaded) that is more coherent and credible than providing domestic benefits to s/s couples but limiting "marriage" to a special status for opposite sex relationships.

Polygamy and Mormons: interesting point. Do you know whether that argument has ever been presented to a federal appellate court? If the prohibition of polygamy was a condition of statehood, there may be a waiver argument.

Michael Ejercito said...

State B would be left with the defense that its policy could not be unconstitutional because it provides more benefits to Venusians than State A.
It would be a credible defense.

Whatever justifies withholding 100% of the benefits justifies withholding all-but-one, 75%, 50%, 25%, or only one.


My argument is that limiting all domestic benefits to heterosexual couples may have a rational basis (however wrongheaded) that is more coherent and credible than providing domestic benefits to s/s couples but limiting "marriage" to a special status for opposite sex relationships.
According to your argument, a state, while not having any justification for withholding the term "marriage" from same-sex couples, would be justified in withholding every benefit of marriage from same-sex couples except the name.

mgarelick said...

@Michael Ejercito: well, it looks like we're the only ones left in the room, and I think we may have reached impasse. Just one more question: When Cooper speaks of the "perverse deterrent" to enacting civil unions, does he mean "perverse" in the sense of paradoxical, or in the sense of "bad?" If it's the latter, what does he think is "bad" about refusing to enact civil unions? (You may well reply, "how the heck do I know what Cooper is thinking?")

Michael Ejercito said...

When Cooper speaks of the "perverse deterrent" to enacting civil unions, does he mean "perverse" in the sense of paradoxical, or in the sense of "bad?"
He means paradoxical, in that, such a ruling (that California's domestic partnership law makes Proposition 8 unconstitutional)order to justify withholding of a single privilege of a discrete group, it must be a pattern of a broad denial of privileges to that group. Thus, if states desire to withhold that single privilege, they would be deterred from extending any other privileges, or incited to withdraw more privileges, to ensure a broad pattern.

Another paradox is that under such reasoning, states may be required to call same-sex unions marriages, but would be free to deny substantive benefits, meaning that there would literally be marriage equality in name only.