Due Process and Proposition 8

1. PLAINTIFFS’ CASE AGAINST PROPOSITION 8
2. PROPONENTS’ DEFENSE OF PROPOSITION 8
3.WHETHER ANY EVIDENCE SUPPORTS CALIFORNIA’S REFUSAL TO RECOGNIZE MARRIAGE BETWEEN TWO PEOPLE BECAUSE OF THEIR SEX
4. WHETHER ANY EVIDENCE SHOWS CALIFORNIA HAS AN INTEREST IN DIFFERENTIATING BETWEEN SAME-SEX AND OPPOSITE-SEX UNIONS
5. WHETHER THE EVIDENCE SHOWS THAT PROPOSITION 8 ENACTED A PRIVATE MORAL VIEW WITHOUT ADVANCING A LEGITIMATE GOVERNMENT INTEREST
6. CONCLUSIONS OF LAW: DUE PROCESS

Two more posts and then we will get to the verdict (not that you don't already know) and my concluding thoughts on the matter of same-sex marriage and the campaign for Proposition 8.

The Plaintiffs challenged Prop 8 on the grounds that it violated both the Due Process Clause and the Equal Protections Clause. Either charge, being true, is enough to force a responsible judge to rule that Prop 8 is unconstitutional. Judge Walker found both charges to be true, and examined each in detail in his Conclusions of Law section. I'll look at Due Process in this post, and Equal Protections in the next one.

CONCLUSIONS OF LAW

Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.

[PAGE 109]

DUE PROCESS

The Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.” US Const Amend XIV, § 1. Due process protects individuals against arbitrary governmental intrusion into life, liberty or property. See Washington v Glucksberg, 521 US 702, 719-720 (1997). When legislation burdens the exercise of a right deemed to be fundamental, the government must show that the intrusion withstands strict scrutiny. Zablocki v Redhail, 434 US 374, 388 (1978).

[PAGES 109-110]

THE RIGHT TO MARRY PROTECTS AN INDIVIDUAL’S CHOICE OF MARITAL PARTNER REGARDLESS OF GENDER

The freedom to marry is recognized as a fundamental right protected by the Due Process Clause. See, for example, Turner v Safely, 482 US 78, 95 (1987) (“[T]he decision to marry is a fundamental right” and marriage is an “expression[ ] of emotional support and public commitment.”); Zablocki, 434 US at 384 (1978) (“The right to marry is of fundamental importance for all individuals.”); Cleveland Board of Education v LaFleur, 414 US 632, 639-40 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”); Loving v Virginia, 388 US 1, 12 (1967) (The “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”); Griswold v Connecticut, 381 US 479, 486 (1965) (“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”).

The parties do not dispute that the right to marry is fundamental.

The state respects an individual’s choice to build a family with another and protects the relationship because it is so central a part of an individual’s life. See Bowers v Hardwick, 478 US 186, 204-205 (1986) (Blackmun, J, dissenting).

Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse. FF 21. “[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” Lawrence, 539 US at 567. The Supreme Court recognizes that, wholly apart from procreation, choice and privacy play a pivotal role in the marital relationship. See Griswold, 381 US at 485-486.

Race restrictions on marital partners were once common in most states but are now seen as archaic, shameful or even bizarre. FF 23-25. When the Supreme Court invalidated race restrictions in Loving, the definition of the right to marry did not change. 388 US at 12. Instead, the Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry. Id.

The marital bargain in California (along with other states) traditionally required that a woman’s legal and economic identity be subsumed by her husband’s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals. FF 26-27, 32. As states moved to recognize the equality of the sexes, they eliminated laws and practices like coverture that had made gender a proxy for a spouse’s role within a marriage. FF 26-27, 32. Marriage was thus transformed from a male-dominated institution into an institution recognizing men and women as equals. Id. Yet, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality.

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. FF 19-20, 34-35. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. FF 33. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. FF 48. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

[PAGES 110-114]

DOMESTIC PARTNERSHIPS DO NOT SATISFY CALIFORNIA’S OBLIGATION TO ALLOW PLAINTIFFS TO MARRY

Having determined that plaintiffs seek to exercise their fundamental right to marry under the Due Process Clause, the court must consider whether the availability of Registered Domestic Partnerships fulfills California’s due process obligation to same-sex couples. The evidence shows that domestic partnerships were created as an alternative to marriage that distinguish same-sex from opposite-sex couples. FF 53-54; In re Marriage Cases, 183 P3d 384, 434 (Cal 2008) (One of the “core elements of th[e] fundamental right [to marry] is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships.”); id at 402, 434, 445 (By “reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership,” the state communicates the “official view that [same-sex couples’] committed relationships are of lesser stature than the comparable relationships of opposite-sex couples.”). Proponents do not dispute the “significant symbolic disparity between domestic partnership and marriage.” Doc #159-2 at 6.

The evidence at trial shows that domestic partnerships exist solely to differentiate same-sex unions from marriages. FF 53-54. A domestic partnership is not a marriage; while domestic partnerships offer same-sex couples almost all of the rights and responsibilities associated with marriage, the evidence shows that the withholding of the designation “marriage” significantly disadvantages plaintiffs. FF 52-54. The record reflects that marriage is a culturally superior status compared to a domestic partnership. FF 52. California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same-sex couples.

[PAGES 114-116]

PROPOSITION 8 IS UNCONSTITUTIONAL BECAUSE IT DENIES PLAINTIFFS A FUNDAMENTAL RIGHT WITHOUT A LEGITIMATE (MUCH LESS COMPELLING) REASON

That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943). Under strict scrutiny, the state bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest. Carey v Population Services International, 431 US 678, 686 (1977).

The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest.

Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

[PAGE 116-117]

To answer Max's earlier question it appears as if Judge Walker makes no distinction between the ability to have a marriage and the state's responsibility to recognize it. He states that "Domestic partnerships do not satisfy California's obligation to allow plaintiffs to marry." I read this as saying that what is a right to an individual is also in turn an obligation of the state. We lose the right to property if the state ceases to protect our property from seizure; similarly if the state does not recognize the marriage of a couple how can one say that they still have the right to do so?

I think I'll leave it at that for my own thoughts in this post, there is already plenty from Judge Walker's arguments. Any thoughts on Prop 8 and the Due Process Clause? Anything that isn't clear? I'd be happy to discuss it more with everyone.

6. CONCLUSIONS OF LAW: DUE PROCESS
7. CONCLUSIONS OF LAW: EQUAL PROTECTION
8. CONCLUSIONS AND REMEDIES

Fighting for equality,

Mike