Perry vs. Schwarzenegger: on to the Ninth?

[construct]

Having looked at several more articles, I'm finding variations on the reasons given above. One variety focuses on choice of law issues, but on further reading it boiled down to the public policy exception to the place of celebration rule.

Another variation concerned a public policy exception to the FFC itself. However, I found a Tenth Circuit case that held that there was no roving public policy exception to the FFC but that foreign statutes were less strictly protected by the FFC than judgments rendered by foreign courts. (That case dealt with a request for changing the birth certificate of a child adopted in California but now residing in Oklahoma where the adoption would not have been allowed.) Essentially that means that the public policy exception to the celebration rule remains unaffected.

I'm still hunting for a case squarely on point. The cases I've found so far in which a court refused to recognize a foreign marriage make no reference to the FFC. They only discuss the celebration rule. The same is true for the cases that did recognize these foreign marriages. If there is such a case that explicitly discusses the effect of the FFC, I haven't found it yet, and I'd love to see it if anyone knows of one.

 

[Kulindahr]

The administration can certainly make a decision not to act on a law that it considers unconstitutional. It even has an obligation to do so. In this case, if the governor and the attorney general believe Prop 8 is unconstitutional, they have every right not to defend it.

Then why did everyone say it was Obama's job to defend DOMA in the courts?

Submitting a brief saying merely that the state wants the court's opinion about the constitutionality of the law probably would fall outside Article III. It wouldn't keep the controversy alive and would, in my opinion, be tantamount to requesting an advisory opinion--something not allowed in federal courts.

I can see that.

What it sounds like is that the case stops here.

 

[Kulindahr]

Here is an explanation for The New American that may help Kuli with his question about licenses.

http://findarticles.com/p/articles/mi_m0JZS/is_5_21/ai_n25105657/pg_2/?tag=content;col1

So my truck title is valid in other states because there's no strong public policy reason against it....

 

[construct]

Then why did everyone say it was Obama's job to defend DOMA in the courts?

I'm not myself sure just how much he had to do with it. The Smelt brief that was the cause for so much offense taken by gay activists was written by a holdover from the Bush administration who had graduated from one of the Christian-right law schools--not that that matters. It was also signed by an assistant attorney in the Justice Department. I assume that the Attorney General knew that the case was going forward, but the buck really should have to stop with the President anyway. In any case, defending a federal statute really would just be the normal thing to do. (And besides, I'd like to see one of these case proceed anyway.)

That's why the actions of Governor Schwarzenegger and Attorney General Brown in not putting up any defense are so surprising. The default is you defend the state law. The exception is when you decide that the law is literally indefensible.

 

[MercuryJones]

Oh Construct. You make me swoon a little.

 

[Stardreamer]

Construct the information you found was terrific.

Operative words, "longstanding precedent," is just fine. I recognize that it really does carry a lot of weight on its own. Marriage is historically after all a state defined and licensed right. It is not a federally licensed right. However, I still believe that there are unconstitutional restrictions on marriage, as bans on interracial marriage have been so found.

I find the license caveat understandable, however the analogy to a license to practice law is false. Law is extremely particular to jurisdictions, and as such it is understandable that not all judges will allow all out of state attorney to represent a defendant. But I have heard of it happening.

The states may define and license marriage but my understanding was that the Supreme Court as a result of the mixed race marriage cases found that there is a right to get married protected by the Federal Constitution.

 

[construct]

The states may define and license marriage but my understanding was that the Supreme Court as a result of the mixed race marriage cases found that there is a right to get married protected by the Federal Constitution.

Yes, that's true. The right to marry is protected by the due process clauses of the Fifth and Fourteenth Amendments. But that right doesn't apply just willy-nilly to any and every sort of marriage one can imagine. A state may still define and regulate marriage in that state, and states do. States have laws telling how old you have to be to get married. They have laws forbidding marriages between people too closely related. They have laws respecting of forbidding common law or informal marriage. All those provisions vary from state to state and most would pass constitutional muster if they were challenged.

 

[braex27]

Can I just say, not being one who is familiar with US law, I am learning so much from this thread and its predecessor thread!!

 

[construct]

Yeah, that is what seems to be the case. It is not precedented to refuse recognition to an out-of-state driver's license, although it could be argued that you are technically only licensed to drive in your own state.

Does that make sense?

It seems to be that you are also only licensed to be married in your own state, and like driver's licenses, it just isn't refused recognition across state lines. There are all types of licenses however which are refused, just because it is not precedented that they are generally recognized across different states, for instance my pool manager's license.

That is the way Construct explained it and I have to say it makes sense to me now.

You know this all goes back to what I was saying earlier. A culture of unwritten law has developed in addition to statute and case law. It has all been made up over the history of our nation.

This "unwritten law" slipped by me. The Constitution, treaties, common law, statutes, administrative regulations, contracts, and maybe something else I'm leaving out are law. All of them are written. When something's missing, a court will supply what's missing, but that's part of what I mean by common law.

Merely saying that there is longstanding precedent does not make it so. Longstanding precedent is not shorthand for "that's the way we've always done it." Longstanding precedent points to actual precedent in cases to be followed as stare decisis. That's why I was careful to note that I had not yet (and still haven't) found the case explaining all this about licenses, marriage, and the FFC. There's no disagreement among reliable sources that marriages are not necessarily portable, but nobody I've read points to particular cases explaining this as it relates to the FFC.



On another note, the question of interracial marriage came up, I think, a couple of times. The Virginia law that was struck down made it a criminal offense for a white person to marry outside his race and for a person of another race to marry a white person. It also criminalized doing that in another state for the purpose of evading Virginia's prohibition. Loving v. Virginia was a criminal case arising out of an evasive interracial marriage.

The Court's objection to the Virginia statute wasn't that Virginia was required to recognize out-of-state (foreign) marriages. It was that Virginia had violated the due process clause by restricting free selection of mates. Thus all anti-miscegenation laws were held to be unconstitutional whether or not they involved out-of-state marriages.



I hope this helps clarify a few things that I had let slide.

 

[braex27]

This "unwritten law" slipped by me. The Constitution, treaties, common law, statutes, administrative regulations, contracts, and maybe something else I'm leaving out are law. All of them are written. When something's missing, a court will supply what's missing, but that's part of what I mean by common law.

Merely saying that there is longstanding precedent does not make it so. Longstanding precedent is not shorthand for "that's the way we've always done it." Longstanding precedent points to actual precedent in cases to be followed as stare decisis. That's why I was careful to note that I had not yet (and still haven't) found the case explaining all this about licenses, marriage, and the FFC. There's no disagreement among reliable sources that marriages are not necessarily portable, but nobody I've read points to particular cases explaining this as it relates to the FFC.

On another note, the question of interracial marriage came up, I think, a couple of times. The Virginia law that was struck down made it a criminal offense for a white person to marry outside his race and for a person of another race to marry a white person. It also criminalized doing that in another state for the purpose of evading Virginia's prohibition. Loving v. Virginia was a criminal case arising out of an evasive interracial marriage.

The Court's objection to the Virginia statute wasn't that Virginia was required to recognize out-of-state (foreign) marriages. It was that Virginia had violated the due process clause by restricting free selection of mates. Thus all anti-miscegenation laws were held to be unconstitutional whether or not they involved out-of-state marriages.

I hope this helps clarify a few things that I had let slide.

It certainly clarifies a lot of things, construct. As always, your exposition of is very concise and easy to comprehend.

I would just like to add that stare decisis which is short for the latin phrase - Stare decisis et non quieta movere translates to "stand by decisions and do not disturb the undisturbed". Whilst it operates to bind lower Courts to the decisions of higher ones, it also leaves open the possibility of Courts at the same level deviating from established precedents. The world changes, and the law must change with it. New situations require new interpretations and (consequently) new judge-made (or case) laws. You just have to get it to a high enough Court to argue that the decision should be overruled and a new one put in its place.

Australia's High Court has overruled its own decision on any number of occasions, and though I don't know them, I am sure the US Supreme Court has a number of decisions which it has made in the past which are no longer operative because they simply have no further relevance in the law, or have been replaced by better, more informed decisions.

I am also aware of one Australian case (name eludes me) in which the judge pronounced that he was bound to follow precedent established by the superior Court but that he disagreed with it and granted leave immediately for an appeal of his decision to have the matter reconsidered.

 

[construct]

It certainly clarifies a lot of things, construct. As always, your exposition of is very concise and easy to comprehend.

I would just like to add that stare decisis which is short for the latin phrase - Stare decisis et non quieta movere translates to "stand by decisions and do not disturb the undisturbed". Whilst it operates to bind lower Courts to the decisions of higher ones, it also leaves open the possibility of Courts at the same level deviating from established precedents. The world changes, and the law must change with it. New situations require new interpretations and (consequently) new judge-made (or case) laws. You just have to get it to a high enough Court to argue that the decision should be overruled and a new one put in its place.

Australia's High Court has overruled its own decision on any number of occasions, and though I don't know them, I am sure the US Supreme Court has a number of decisions which it has made in the past which are no longer operative because they simply have no further relevance in the law, or have been replaced by better, more informed decisions.

I am also aware of one Australian case (name eludes me) in which the judge pronounced that he was bound to follow precedent established by the superior Court but that he disagreed with it and granted leave immediately for an appeal of his decision to have the matter reconsidered.

This is the same in America, but the phrase 'stare decisis' is used here in the U.S. to include standing by previous decisions of the same court, i.e. respecting precedent. A court is not so much bound by stare decisis as it is very, very strongly guided by it.

The U.S. Supreme Court has not always followed precedents. It has overturned prior cases many times. One such case that will be familiar to almost everyone is Lawrence v. Texas which overturned Bowers v. Hardwick.

 

[Kulindahr]

On another note, the question of interracial marriage came up, I think, a couple of times. The Virginia law that was struck down made it a criminal offense for a white person to marry outside his race and for a person of another race to marry a white person. It also criminalized doing that in another state for the purpose of evading Virginia's prohibition. Loving v. Virginia was a criminal case arising out of an evasive interracial marriage.

The Court's objection to the Virginia statute wasn't that Virginia was required to recognize out-of-state (foreign) marriages. It was that Virginia had violated the due process clause by restricting free selection of mates. Thus all anti-miscegenation laws were held to be unconstitutional whether or not they involved out-of-state marriages.

That would seem to be a very important element for looking at Prop 8.

 

[construct]

That would seem to be a very important element for looking at Prop 8.

Not so fast. The holding in Loving v. Virginia is narrower than I described it. Here is the exact wording of the last paragraph.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Let's look at it sentence by sentence. The first sentence establishes that marriage is a fundamental right. (Thus marriage restrictions generally should be subjected to strict scrutiny.) The second sentence shows that restriction of choice of mate based on race violates the due process clause because this unsupportabe discrimination affects everone. The third sentence says that it violates the equal protection clause because the discrimination is invidious. (To violate the equal protection clause, the discrimination with respect to a discreet class of people discriminated against must also be unsupportable.) The last sentence presents a holding that freedom of choice of a mate regardless of race is required by the Fourteenth Amendment. That holding is based on the test outlined in the second and third sentences as it was applied to the statutes related to racial restrictions on choice of mate similar to the one challenged. (The analysis would be identical with respect to the Fifth Amendment. The Fifth Amendment due process clause has been held to include an equal protection component.)

Now let's look at the issues that must be answered in a Fifth or Fourteenth Amendment challenge to gender restriction. First, is the restriction unsupportable? Second, does it apply to everyone? If both are true, it violates the due process clause.

Then we move to the equal protection issues. First, is there a discrete class that is affected by the discrimination? Second, is this discrimination invidious? If both are true, the discrimination violates equal protection.

Of course, it could violate both, but either one will do.

That's how it works. So, a decision about same-sex marriage rests on whether the Court would extend the holding in Loving to same-sex marriage.

 

[braex27]

My views in relation to your suggested questions in relation to applications of either the Fifth or Fourteenth amendments.

Now let's look at the issues that must be answered in a Fifth or Fourteenth Amendment challenge to gender restriction. First, is the restriction unsupportable? Second, does it apply to everyone? If both are true, it violates the due process clause.

Whether the restriction is unsupportable is a matter of assessment and I fear that on any factual assessment, the answer will be no. Historically, same-sex marriage has generally not been legal. That the vast majority of the States in the US, and countries in the World still maintain this restriction.

Arguing the opposing view, recent moves by any number of countries to legalise same-sex marriage, or civil unions or partnerships may be indicative of shifting attitudes and norms, and whilst it was not unsupportable before, it will likely be very shortly and the law should reflect this imminent change.

Does it apply to everyone? The answer here, has to be, in my humble opinion, no. It only applies to gays and lesbians. Whereas the restriction against marriage based upon race could be argued to have impacted the entire population - any white man would be prohibited from marrying any black woman of his choice, or any white woman would be prohibited from marrying a black man of her choice. In the case of same-sex marriage, I think an argument along similar lines won't carry much weight. If the Court takes a narrow construction - they can limit it to gays and lesbians a broader construction may apply it to bisexual people and transgender people - therefore encompassing the GLBT community - but any argument beyond this is reaching too far, I think. No court could factually accept that the same-sex marriage restriction would affect a straight man or woman.

Further, on my reading of the Fifth Amendment, this extract is most applicable (the balance dealing with criminal offenses, privilege against self-incrimination and deprivation of property) - "...nor be deprived of life, liberty, or property, without due process of law..." This poses a problem, I think. Yes on Prop 8 could reasonably argue that due process was afforded - it was put to a vote of the eligible population in California and the voters passed the Proposition. Is there a clearer affording of due process than this?

Then we move to the equal protection issues. First, is there a discrete class that is affected by the discrimination? Second, is this discrimination invidious? If both are true, the discrimination violates equal protection.

An argument based upon the Fourteenth Amendment, in my view, would present a far stronger case. There is a clear and discrete class affected by the discrimination - namely, the GLBT community. Is the discrimination invidious - unfair, unjust or likely to incur resent or anger in others? The answer is arguably yes. The evidence of resentment and anger is clear - factually, the Court cannot fail to take judicial notice of the reaction of the GLBT community to Proposition 8.

The relevant words of section 1 of the Fourteenth Amendment - "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." - are a little troubling for the following reasons:

1. The first part clearly works in favour of overturning Prop 8. It clearly abridges a privilege afforded to heterosexual citizens.

2. The second part emphasises the need for due process again - and as with my earlier point - I believe this may work for Yes on Prop 8 in an argument that due process has been afforded by public vote.

3. The last part can go either way, I think. A State's laws are what is in its law books. California laws govern marriage. Proposition 8 limits marriage to heterosexual couples only. Proposition 8, having been passed, is also law. Arguments for overturning Prop 8 could argue that the marriage laws afford rights to heterosexual Californians and the GLBT community must be afforded protection under that law. Yes on Prop 8 could argue that Prop 8 is itself a law, and they need to be afforded its protection lest same-sex marriages bring about the apocolypse...etc.etc. (read with necessary sarcastic inflection).

I hope I haven't made too much of a fool of myself in outlining what I think the position may be... I am happy to be correct if I have misinterpreted anything.

 

[construct]

Well, perhaps. I think I was too brisk with the word 'unsupportable.' It really is judged under strict scrutiny because it affects the right to marry. I also left this out of my statement of the equal protection issue. The discrimination has to be supportable under strict scrutiny.

But let's start with the applicability of the Fifth and Fourteenth Amendments. The Fifth Amendment is a restriction on the federal government. The Fourteenth Amendment is a restriction on the states. This case is about a state law--Prop. 8. Therefore it will be measured against the Fourteenth Amendment. If it were about DOMA, which is a federal law, it would be measured against the Fifth.

Now let me talk a little about the concept of due process. In the U.S., due process is not purely procedural. It has a substantive component as well. This is a legal doctrine that we call 'substantive due process.' It has been recognized since the nineteenth century, and it is a catch-all for all the unenumerated rights recognized by the Ninth Amendment. The right to marry is an unenumerated right, and it is so fundamental to our understanding of a free society and so entrenched in our national tradition that it can be called 'fundamental.' Because it is a fundamental liberty any infringement of it warrants strict scrutiny.

Under strict scrutiny, the state must show that the law is narrowly tailored to advance a compelling state interest. So, does the state have an interest--something it's desiring to protect? Is that interest compelling? And even if it is, is the law itself narrowly tailored to meet that objective? It can't be too broad or too narrow. It can't include things that don't go toward the objective, and it can't leave out things that do.

Further, a law that applies to everyone means that everyone is required to follow it. Most people get married. People select their own mates usually. If there is a restriction on whom one might choose, it applies to everyone. No one can choose a spouse of the same sex in California, whether he wants to or not.

The equal protection part also needs some unpacking. It is also judged under strict scrutiny because the case is about marriage.

Unfortunately, I must run away before I pick that part up. I have lunch plans that require me to cut this post a little short. Short?

 

[Kulindahr]

Unfortunately, I must run away before I pick that part up. I have lunch plans that require me to cut this post a little short. Short?

There's word-shortness and substantive shortness. With respect to cutting things short, word-shortness is when you end when you've used only a few words. Substantive shortness is when you end without having completely addressed the substance of the matter.

 

[Stardreamer]

Yes, that's true. The right to marry is protected by the due process clauses of the Fifth and Fourteenth Amendments. But that right doesn't apply just willy-nilly to any and every sort of marriage one can imagine. A state may still define and regulate marriage in that state, and states do. States have laws telling how old you have to be to get married. They have laws forbidding marriages between people too closely related. They have laws respecting of forbidding common law or informal marriage. All those provisions vary from state to state and most would pass constitutional muster if they were challenged.

Agreed but given that the right has been established, does it not then require the state to show reason for its restrictions on marriage other than just majority will? The majority of the restrictions such as not marrying you dog or close relations have established reasons based on consent and/or a demonstrable damage to society.

 

[construct]

Agreed but given that the right has been established, does it not then require the state to show reason for its restrictions on marriage other than just majority will? The majority of the restrictions such as not marrying you dog or close relations have established reasons based on consent and/or a demonstrable damage to society.

Yes. Once the liberty that the law is restricting is found to be fundamental, the burden shifts to the defenders of the law, i.e. the state, and the state must offer a reason for the restriction that passes strict scrutiny.

On a side note, the due process clauses are sometimes referred to as the liberty clauses. This points to the doctrine of substantive due process. There are liberties that are so important that violating them is on its face a denial of due process. Almost all of the rights enumerated in the Bill of Rights are examples of such fundamental liberties. No vote, no hearing, no matter how correct can cure the infringement, and the law must pass strict scrutiny. If the liberty at issue is less than fundamental, the law need only be rationally related to a legitimate governmental interest, and it is up to the challenger to show that the law is not--either that the government has no legitimate interest or that the law is not rationally related to it.

 

[construct]

The equal protection part also needs some unpacking. It is also judged under strict scrutiny because the case is about marriage.

In analyzing a law to see if it violates equal protection, one must first identify a group who are targeted (whether intentionally or not) by the law--a group who will be affected to a significantly greater extent than the rest. Then that distinction, that discrimination in the law must be examined; and if the law in which the distinction is found concerns a fundamental liberty, the discrimination must pass strict scrutiny. The state must show that it has a compelling interest that the law needs to make that distinction in order to advance it. The state must also show that the distinction is narrowly tailored to advance that interest. If the state cannot show that burdening one class of people more than the rest is necessary to advance a compelling governmental interest, its infringement of a fundamental liberty fails to afford equal protection.

I hope this explanation along with my earlier elaboration about due process helps clarify my close reading of the last paragraph from Loving v. Virginia. Together, I think they explain the basic structure of a Fourteenth (or Fifth) Amendment challenge based on the due process and equal protection clauses.

 

[Kulindahr]

In analyzing a law to see if it violates equal protection, one must first identify a group who are targeted (whether intentionally or not) by the law--a group who will be affected to a significantly greater extent than the rest. Then that distinction, that discrimination in the law must be examined; and if the law in which the distinction is found concerns a fundamental liberty, the discrimination must pass strict scrutiny. The state must show that it has a compelling interest that the law needs to make that distinction in order to advance it. The state must also show that the distinction is narrowly tailored to advance that interest. If the state cannot show that burdening one class of people more than the rest is necessary to advance a compelling governmental interest, its infringement of a fundamental liberty fails to afford equal protection.

Just to show this on a different topic, there's a case about felons having firearms going forward on this basis (don't recall where, don't feel like digging through the NRA web site to find it). The argument is that there is no compelling state interest for disarming all felons; it is thus seeking to make a distinction between those it concedes a state interest for (violent felons) and those it says the state has no interest at all, let alone a compelling one (nonviolent felons).

The fundamental liberty, of course, is the right to keep and bear arms. The compelling state interest is to (hopefully) prevent violence against citizens. The question sheds light on Perry, IMO, because just as the state must show that keeping nonviolent felons from having weapons is a compelling interest, so the state has to show that keeping homosexuals from marrying is a compelling interest. In both cases, the question comes down to harm: what harm will come from allowing this?

For The Family Research Council, NOM, and their allies, what it boils down to is that they think that letting gays marry is like allowing violent felons to have weapons.