Friday, October 6, 2006
The long-awaited decision of the California Court of Appeals on the constitutionality of gay marriage followed much of the same pattern as the New York and Washington state decisions (see Family Law Prof Posts of July 11 and July 25)- holding that the ban on gay marriage does not violate due process or equal protection and that the decision to make marriage available to same-sex couples is for the legislature. Of all the opinions issued thus far on the subject, I would be most inclined to assign this case for students.
First, the opinion provides students with a fine overview of how marriage legislation has evolved, including the development of domestic partner legislation. Second, the opinion fairly thoroughly explores all the major arguments and analyses that have been raised in the same-sex marriage constitutional challenges. The majority opinion examines the reasons for a rational basis standard of review on due process and equal protection challenges and the government interests advanced by the definition of marriage. The dissent advances a vigorous attack on the majorities reasoning and presents an entirely different framework of constitutional interpretation. Finally, the opinions provide a fascinating commentary by the judges on the role of courts in constitutional interpretation.
Here is a brief outline of the majority opinion by Justice McGuiness:
I. Justiciability Issues
(The court concludes that two citizen groups lack standing as they seek declaratory relief regarding enforcement of the marriage laws – relief they had already obtained in separate mandamus actions.)
II. Relevant Statutory Provisions
A. The Marriage Statutes
The court discusses both the marriage act (which included language of gender first in 1977) and the more recent Proposition 22.
B. The Domestic Partner Act
The court reviews a variety of legislation extending protection to gays and lesbians and explores the scope and limitations of the domestic partner act. Finally the court recites the recent legislative attempts to legalize same-sex marriage in the state.
III. Respondents' Constitutional Claims
A. No Fundamental Right to Marriage Between Same-sex Partners Has Been Recognized.
The court explores how to define the right at stake, concludes that the historical understanding of marriage is critical to the analysis, and finds that the question of re-defining marriage is one for the legislature not the courts.
B. The Marriage Laws Do Not Discriminate Based on Gender
The court concludes that discrimination based on gender means singling out one sex for discriminatory treatment. Since same-sex marriage treats men and women equally, it does not violate equal protection. The court rejects the analogy to the miscegenation cases, on the basis that the 14th Amendment did require that all laws incorporating racial classification are subject to strict scrutiny. Here, the court concludes “No evidence indicates California's opposite-sex definition of marriage was intended to discriminate against males or females…”
C. Disparate Impact on Gays and Lesbians Does Not Trigger Strict Scrutiny
The court concluded that there was no precedent for treating sexual orientation as a suspect classification for purposes of equal protection analysis, including Lawrence v. Texas. In particular, regarding the analysis of whether sexual orientation constitutes an immutable trait, the court noted that “Lacking guidance from our Supreme Court or decisions from our sister Courts of Appeal, and lacking even a finding from the trial court on the issue, we decline to forge new ground in this case by declaring sexual orientation to be a suspect classification for purposes of equal protection analysis.”
D. The Marriage Laws Do Not Infringe Other Asserted Constitutional Rights.
1. Right of Privacy/Intimate Association
The court analyzed the prohibition on same-sex marriage under the California constitutional protection of freedom of intimate association. The court concluded that banning marriage did not infringe on that right because, marriage is “valued not just for the private commitment it fosters between the individuals who marry, but also for its public role in organizing fundamental aspects of our society.”
2. Right of Free Expression
“Although there are expressive aspects to it, entering a marriage is obviously something much more than a communicative act. If the state has legitimate reasons for limiting marriage to opposite-sex couples, then the unavailability for same-sex couples of this one form of expressing commitment-when all other expressions remain available-does not rise to the level of a constitutional violation.”
IV. The Marriage Laws Withstand Rational Basis Review
A. State's Interest in Preserving the Traditional Definition of Marriage Is Legitimate
The court examined the government interest in preserving “traditional” marriage, analyzing this interest in light of the other protections provided to same-sex couples under California law. The court noted that “California provides one of the most comprehensive systems of rights and benefits for same-sex couples in the country.” Since the states interest in supporting stable family relationships is protected by both marriage law and domestic partner legislation, the court concluded that “it is rational for the Legislature to preserve the opposite-sex definition of marriage, which has existed throughout history and which continues to represent the common understanding of marriage in most other countries and states of our union, while at the same time providing equal rights and benefits to same-sex partners through a comprehensive domestic partnership system. The state may legitimately support these parallel institutions while also acknowledging their differences.” Dismissing the analogies to “separate but equal” arguments supporting segregation, the court stated, “We are not dealing with a suspect classification such as race. Therefore, under the correct legal standard (rational basis review), we must uphold the opposite-sex requirement for marriage if it is supported by any plausible reason.” Interestingly, the court did not rely on the “responsible procreation” rationale other courts have advanced, as the Attorney General in this case had expressly disavowed that position, suggesting that any argument that implied that same-sex couples were inferior as parents to heterosexual couples would be against the public policy of the state.
B. State's Interest in Carrying Out the Will of Its Citizens Is Legitimate
“Majoritarian whims or prejudices will never be sufficient to sustain a law that deprives individuals of a fundamental right or discriminates against a suspect class…. [However] We may not strike down a law simply because we think it unwise or because we believe there is a fairer way of dealing with the problem…. Respect for the considered judgment of the Legislature and the voters is especially warranted where the issue is so controversial and divisive as is the question whether gays and lesbians should be permitted to marry their same-sex partners.
Concurring Opinion Justice Parrilli writes to “address what are more philosophical questions presented by the challenging legal issues before us.” His opinion comments on the nature of the debate and the respective roles of the legislature, the courts and religion in resolving this issue.
Dissenting Opinion Justice Kline dissents, providing a lengthy and impassioned argument that the court must frame the issue as a right to marry, relying on cases such as Bower v. Hardwick and Loving v. Virginia to demonstrate that the same-sex marriage ban is an invidious form of discrimination against a suspect class. “Though not its purpose, the inescapable effect of the analysis the majority adopts is to diminish the humanity of the lesbians and gay men whose rights are defeated.”
In re Marriage Cases, 2006 Cal. App. LEXIS 1542 (October 5, 2006)
Opinion on the web (last visited October 6, 2006 bgf)
Thursday, October 5, 2006
"China faces a future of crime and instability as a generation of 40 million men is left frustrated by a lack of brides, thanks to the practice of selective abortion of female foetuses, a population official has warned. Men left on the shelf would resort to prostitutes or pay huge prices for brides, while trafficking in women and girls kidnapped from rural areas and other countries would increase.
Li Weixiong, vice-chairman of a committee studying population and environmental issues, gave the warning to a government advisory body in Beijing this week. "This is by no means a sensational prediction," said Mr Li, according to the official news agency Xinhua. "The great disparities between male and female newborns mean a serious threat to building a well-off society. The disproportion of male to female has become more and more serious, especially in the rural areas."
China's enforcement of the one-child policy for the Han majority since the late 1970s has exacerbated a cultural preference for sons to carry on family names and tend the graves of ancestors." By Hamish McDonald,smh.com.au Link to Article (last visited 10-5-06 NVS)
"Judges have been settling family disputes since King Solomon's proposed "solution" of splitting a baby in half in a custody battle. That Bible story has some parallels to how courts today grapple with demands of grandparents to visit their grandchildren over parental objections. Many thought the U.S. Supreme Court had essentially settled this issue in 2000 when it ruled that Tommie Granville, a mother in Washington state, could limit to once a month her two girls' contact with their paternal grandparents after the girls' father had committed suicide. But the issue is flaring anew. The highest courts of Pennsylvania, Utah and Colorado recently ordered grandparent visits in disputes strikingly similar to the 2000 case. The cases are heartbreaking because all involved a child who had lost a parent, and the surviving parent - whose fitness wasn't in question - wanted to limit visits." USA Today.com, Yahoo News Link to Article (last visited 10-5-06 NVS)
"Though it is undoubtedly true that the rights of the parents in a grandparent visitation dispute are important, it is also true that they are not the only people whose rights and desires should be considered. Most states have some version of a statute that gives grandparents the right to seek visitation with their grandchildren, and this right should not be overlooked. There are many reasons that parents and grandparents find themselves unable to agree on visitation, and those reasons can have more to do with issues in the relationship between the grandparents and their adult children than with the quality of the relationship between grandparent and grandchild. It is naive to assume that parents who are not abusive or neglectful will always make the right decision where their children are concerned." By Traci Truly, USA Today.com Yahoo News Link to Article (last visited 10-05-06 NVS)
"Michael Jackson and his ex-wife, Deborah Rowe, have settled their lengthy legal battle over custody and visitation rights for their two children, their lawyers said Friday.
"We're still dealing with the details but it addresses all of the disputes between the parties," said attorney Marta Almli, who represents Rowe. "I can't say anything about the terms of the settlement but I don't think it would have happened if both parties didn't agree it was appealing to both of them."" AP, Cnn.com Link to Article (last visited 10-4-06 NVS)
"Pop diva Madonna adopted a young boy in Malawi on Wednesday and moved ahead with plans to fund a center for 1,000 orphans, many of whom lost parents to AIDS in the impoverished African nation. The "Material Girl" and an entourage arrived in the Malawian capital Lilongwe by private plane early on Wednesday and were quickly whisked away to an undisclosed location in a fleet of cars and trucks. Government officials said the 48-year-old singer, already a mother of two, chose the one-year-old orphan from among 12 children specially chosen prior to her arrival in the country, which has legions of children orphaned by the AIDS epidemic." By Mabvuto Banda, Reuters, Yahoo News Link to Article (last visited 10-4-06 NVS)
"Larry Birkhead has filed a paternity suit to prove he’s the daddy of Anna Nicole Smith’s new baby daughter. The Louisville native also has eschewed the ongoing war of words he was forging on his Web site by hiring a publicity firm, which sent out a statement confirming celeb attorney Debra Opri has filed court papers on his behalf." By Angie Fenton, Courier-Journal Link to Article (last visited 10-4-06 NVS)
Wednesday, October 4, 2006
Reactions to Pennsylvania Holding that Parent May Not be Prohibited from Teaching Child about Belief in Polygamy Absent Threat of Harm
The Pennsylvania Supreme Court's decision ordering that a father could not be prohibited from discussing his views favoring polygamy has been getting plenty of press coverage. The court's analysis of the degree to which the state can infringe on a parent's instruction of their child regarding religious beliefs came down to the principle that "The state’s compelling interest to protect a child in any given case ... is not triggered unless a court finds that a parent’s speech is causing or will cause harm to a child’s welfare.... we emphasize that the illegality of the
proposed conduct on its own is not sufficient to warrant the restriction. Where, as in the
instant matter, there is no finding that discussing such matters constitutes a grave threat of
harm to the child, there is insufficient basis for the court to infringe on a parent’s
constitutionally protected right to speak to a child about religion as he or she sees fit."
Shepp v. Shepp, opinion on the web (last visited October 2, 2006 bgf)
For press coverage on the opinion, see CNN's report
the York Dispatch, with interviews of mother
the York Daily Record, with a picture of dad and a chronology of the family
It's definitely a teachable moment. I've had no less than five students this week ask me about the two men who are claiming paternity of Ann Nicole Smith's child. In case you're getting questions, here's a link to the story. (last visited October 4, 2006). I've been sending students to the Uniform Parentage Act for their answers. Cornell's Legal Information Institute has the full text of the statute and links to the state versions.
A September 22nd Family Law Prof Blog post related the story of parents who kidnapped their daughter to try to talk her into an abortion. Today's New York Times reports another parental kidnapping of an adult child -- this time, the parents took their 21-year-old daughter on a "pre-wedding shopping trip" that turned out to be a 240 mile trip out of state, while trying to talk her out of the nuptials along the way and holding her until she missed the ceremony. The parents have been charged with second-degree felony kidnapping. Hopefully not a trend...
To read the New York Times story (Last visited October 4, 2006 bgf)
See the ABC Video on the story
Monday, October 2, 2006
"At least a third of infant deaths in the United States are the direct result of prematurity, double the proportion previously believed, federal researchers report today. Prior data obtained solely from death certificates had indicated that birth defects were the major cause of death among infants in their first year." By Thomas H. Maugh II, Times Staff Writer, latimes.com Link to Article (last visited 10-02-06 NVS)
"Children are more likely to wake up from sleep and get out of bed and leave their bedrooms when they hear their mother's voice than they would if they were exposed to the din of a smoke alarm siren, say researchers from the Center for Injury Research and Policy, Columbus Children's Hospital, USA." By Medical News Today Link to Article (last visited 10-02-06 NVS)