California Attorney General Jerry Brown has not only come out in support of repealing Proposition 8, but he’s filed his court papers arguing something Barack Obama‘s Department of Justice didn’t have the balls to do: Admit Prop 8 and the Defense of Marriage Act violate the U.S. Constitution. Might California finally be showing it can lead the equality battle?
While Team Obama was busy defending the government’s pro-DOMA position — and breaking the promises he made to gay Americans &dmash; Brown busied himself with pointing out how the 14th Amendment, which deals with a little thing “equal protection.”
A defendant in Perry v. Schwarzenegger, the DOMA challenge spearheaded by attorneys Ted Olson and David Boies, Brown must respond to each allegation. He did just that, like so:
In response to paragraph 39 of the Complaint, the Attorney General admits that, to the extent that Proposition 8 took from Plaintiffs their previously held fundamental right to marry, the measure violates the Due Process clause of the Fourteenth Amendment to the United States Constitution on its face; and that by denying civil marriage to gay and lesbian same-sex couples that it affords to heterosexual opposite-sex couples, the California Constitution denies gay and lesbian couples and their families the same dignity, respect, and stature afforded families headed by a married couple. See In re Marriage Cases, 43 Cal.4th at 846-47.
. . . .
In response to paragraph 41 of the Complaint, and in light of the state constitutional rights confirmed by the California Supreme Court in In re Marriage Cases, the Attorney General admits that the passage of Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution on its face.
Of course, Gov. Arnold Schwarzenegger also gets to have his say; his response is expected shortly. Should he disagree with his attorney general’s findings, we’d just love to see him try and outdo the reprehensible language Obama’s DOJ spat out. ‘Cause that would be impressive. And disgusting.
How about we take this to the next level?
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bobito
Kind of confusing heading to this article – I’m really opposed to DOMA, but I really like having my balls sucked.
James
Review the history of Baker v Nelson.
The US Supreme Court is already on record stating that laws prohibiting same-sex marriage are not a federal issue and that there is no violation of the US Constitution.
Because of the precedent set with Baker v Nelson, all the District Court can do with this case is dismiss it. Only the US Supreme Court can change the precedent. The Constitution has not changed in regard to this issue, so there is no reason to expect a change in precedent.
On the other hand, challenges to DOMA are quite valid. If the court has determined that laws governing marriage should be left to the states, then the federal government should not have laws that trump state laws. However the states determine to govern marriage, the federal government should respect those decisions. With DOMA repealed, even domestic partners and those with civil unions would have the path cleared to claim federal benefits.
The 14th Amendment argument has been made and flatly rejected previously. There is nothing new in the current argument to expect any change in that regard.
andy_d
Wishful thinking department: Wouldn’t it be great if Massachusett, Iowa, et al, passed laws that voided any heterosexual marriage performed in a no-gay-marriage state? Then we’d see a very fast repeal of DOMA.
John K.
@James: Between Baker v. Nelson and now we’ve had Romer v. Evans and Lawrence v. Texas. Quite a different legal landscape, and a district court can reasonably rule that the US Supreme Court has implicitly overruled Baker with those two more recent cases.
Sceth
High Tech Gays v Defense Industrial Security Clearance Office:
The Ninth Circuit declined to rule that sexual orientation constitutes a suspect classification at the federal level. Is the court at hand bound by this decision? C9’s issue was whether sexual orientation is “immutable” (exactly a matter of choice v nature) and the court found it “controversial”. Hence it declined strict scrutiny and moved on with that despicable Rational Basis Test, citing such bullshit as effing OPINION polls by ABC and NYT.
What may very well win this with finality is getting some scientific authorities to submit in support of immutability.
Until then, the court handling this case is free to default to the 9C’s declination.
edgyguy1426
@andy_d: I like yer thinkin’!
John K.
@Sceth: Well, now we’ve got a very persuasive (although, obviously not binding) California Supreme Court decision that details why sexual orientation should be treated legally as immutable whether it is actually completely physically immutable or not. It is such an integral part of someone’s being–much like religion–that people should not reasonably be expected to change it even if it were somehow changeable. We’ve got the Cali decision, the Connecticut decision, and the Iowa decision that all follow that same line of reasoning, and they happen to be the three most recent cases confronted with the issue. I’m not too worried about the High Tech Gays case from 20 years ago.
I am, however, worried about SCOTUS. They do what they want up there, logic and reason notwithstanding.
James
@John K.: The Baker v Nelson case has been cited as precedent in modern cases, even after the Romer and Lawrence rulings. The questions before the court in Romer and Lawrence were significantly different than the question raised in Baker- there is no reason to expect the courts to change the Baker precedent as a result of those cases.
In the Lockyer case a few years back Justice Kennard of the California court went on at length about the binding precedent of Baker. She noted that until the US Supreme Court revisits Baker and determines to change the standing precedent, all lower courts, including the federal District Court, are bound by it. ONLY the US Supreme Court can alter the Baker precedent- such an action is beyond the reach of the District Court with the current filing.
Regarding the current filing in the District Court, the only part of the argument that they might address is regarding the same-sex marriages that were allowed to remain valid. The suit claims the California court wrongly created a new class, and it is not unreasonable to think that a federal court could undo that part of the ruling.
The most likely scenario is that the court will dismiss without comment, noting only that there is not a federal issue in question. I think the attorneys expect that and are only working the case one step at a time to the US Supreme Court.
John K.
@James: Well, Justice Kennard is a single judge, and I think reasonable justices disagree as to whether Lawrence and Romer have an effect on Baker. As I said, several state cases have cited those two cases in striking down their own states’ marriage bans, most often citing Justice Scalia’s dissent in Lawrence in which he admits that Lawrence removes any justification for banning same-sex marriage.
You may be right about what the Court will do, but I don’t think it’s mandatory for lower federal Courts to assume that Baker is still good law.
James
@John K.: Regarding your last comment about lower courts not being required to accept Supreme Court precedent as good law… it is not for the lower courts to decide. No lower court can overrule the Supreme Court. If the precedent is deemed to be bad law then the Supreme Court must address the issue and change the precedent.
That has been my only point here… the current filings in the lower courts are either a waste of time, or are just stepping stones to get to where the issue needs to be.
When it gets to the Supreme Court the only way around Baker is for them to determine that the previous court erred. If they are willing to do that then they can address the issue and give us a real ruling rather than a precedent based on dismissal.
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1EqualityUSA
Guys< I've read all of you comments 4 times and supplemented them with internet searches and now I have a splitting headache. Please, in the simplest terms possible, as though you were explaining this to a child, what are the ramifications of Baker V Nelson towards equality. Is there hope? How can Minnesota's 1971 case apply to what is known about gay people today. The more I read, the more I feel frustrated by this.
Michael Letterman
Ask Mr. Brown of the failed state of California, if this means we need to create legislation which will allow pedophiles and those who believe in bestiality to also marry? I mean if we are going to defend queers getting married why not other sexual deviants as well. DOMA is here to stay, we wouldn’t have it any other way, regardless of the DOJ, we will protect the DOMA.
No wonder California is going under.
Michael Ejercito
It is not at all apparent that discrimination on the basis of gender or sexual orientation would be held to the same standard as discrimination on the basis of race.
There are legal precedents on this issue that undermine the plaintiffs’ case. In Minor v. Happersett , the U.S. Supreme Court upheld a law prohibiting women from voting against an equal protection challenge.
In Rostker v. Goldberg , the U.S. Supreme Court upheld a law requiring men, but not women, to register for a possible draft against an equal protection challenge.
In Michael M. v. Superior Court , the U.S. Supreme Court upheld a law punishing underage boys for having sex with underage girls, but not underage girls for having sex with underage boys, against an equal protection challenge.
How would the courts rule on law that imposed racial restrictions on voting, racial exemptions on draft registration, or laws prohibiting underage black people from having sex with underage white people, but not underage white people from having sex with underage black people?
Michael Ejercito
@1EqualityUSA:
Baker applies because the 14th Amendment does not subject gender or sexual orientation discrimination to the same level of scrutiny as racial or racial orientation discrimination.
Preceding Baker was the 1874 case of Minor v. Happersett , which essentially ruled that states and Congress reserve the power to impose voting restrictions on the basis of sex in their respective jurisdictions (The 19th Amendment’s ratification made Minor moot on the issue of denial of suffrage, not on 14th Amendment scrutiny on gender discrimination.)
At least two post-Baker decisions, Rostker v. Goldberg and Michael M. v. Superior Court , also upheld gender discrimination in laws concerning draft registration and statutory rape.