My legal analysis of same sex marriage in CA - Please comment

[Cptn Kirk]

Hi all,

Please comment on this and let me know your thoughts. (please be well read in law)

Basic situation is this. In 2000 proposition 22 in CA was passed. This added section 308.5 to the CA Family Code. Section 308.5 states “Only marriage between a man and a woman is valid or recognized in California.”

NOW - let's flash over to the CA constiution. Article ONE.

"SEC. 7. (a) A person may not be deprived of life, liberty, or
property without due process of law or denied equal protection of the
laws; provided, that nothing contained herein or elsewhere in this
Constitution imposes upon the State of California or any public
entity, board, or official any obligations or responsibilities which
exceed those imposed by the Equal Protection Clause of the 14th
Amendment to the United States Constitution with respect to the use
of pupil school assignment or pupil transportation. "

further reads

"(b) A citizen or class of citizens may not be granted privileges
or immunities not granted on the same terms to all citizens.
Privileges or immunities granted by the Legislature may be altered or
revoked."
(I believe the last line of section B would mean that in order to deprive same sex coples of marriage, the legislatures only option would be to revoke marriage for opposite sex couples as well)

Now I am pretty damn sure you could argue homosexual people to be a "class of citizens". As well as heterosexual people to be a "class of citizens".

The argument is that marriage falls under "privileges
or immunities". Further, to deprive same sex couples of marriage the law is NOT being applied to all citizens on the same terms.
This sounds like a VERY strong and legally sound argument to me.

Ok, here is where it gets complicated.

The federal DOMA says that states have the authority to define marriage. As you all know, federal law trumps a state constitution.

HOWEVER - I would imagine that the federal DOMA could just as easily be ruled unconstitutional under the 14th amendment to the US constitution.

So I would imagine it would happen like this IF the courts uphold the law.

1. The CA state courts hear this case. They eventually rule the state DOMA unconstitutional as per the state constitution.

2. That ruling is appealed to the federal courts using the federal DOMA as an argument. BUT the federal courts (and maybe I am naive, but I believe the current SCOTUS would) rule the federal DOMA unconstitutional. OR they could rule regardless of the federal DOMA, marriage is a state matter and the state court ruling stands. End of story.

Now this would be a long drawn out legal battle, but I believe IF the law is upheld this is a potential outcome.

Thoughts?

[liberalhistorian]

1. I'm a paralegal who probably knows more law than

a lot of the attorneys I deal with daily (time and money and single parenthood prevent me from attending law school, unfortunately), and your analysis seems to make perfect sense to me.

I don't know CA law (I'm in Ohio), but from what you've posted it seems to me that they would have to, indeed, rule the state DOMA to be unconstitutional based on what you've posted of Section 7 of the state constitution. The SCOTUS is so blatantly RW partisan, though, that I'm not sure it would uphold any striking down of the CA state DOMA, and I have no doubt that it would be struck down as unconstitutional.

[kanrok]

2. Good analysis

I would only add that the arguments made at the state level in Ca will likely allege violations of state and federal constitutional principles. This will likely end up in federal court, and ultimately be decided by SCOTUS. Good job.

[Maat]

5. I'm in my 4th year of law school (last year) and...

I believe that I basically agree with you. I'm a Californian also. I believe that the state's DOMA will be ruled unconstitutional per the State Constitution. The state's constitution, of course, will trump statutory law, which the state DOMA is. If you know the history of the way the California Supreme Court views things, you know that they will interpret the application of equal protection very expansively and liberally. The only relevancy of the federal DOMA, in my view, is that other states will not be compelled to recognize the marriages. I believe this is a good time for Newsom to engage in this civil disobedience, as attitudes toward same-sex marriage have changed favorably since the passage of Prop. 22. I'm all for this and have sent an e-mail of support to Newsom.

[Cptn Kirk]

11. True

"The only relevancy of the federal DOMA, in my view, is that other states will not be compelled to recognize the marriages."

But is it not possible that that the federal DOMA will be ruled unconstitutional per the 14th? (I believe CA is under the jurisdiction of the 9th federal court, yes?) That court effects at least one or two more states than CA I believe... And of course if the SCOTUS rules the same later on, then it will effect all states.

[StopThief]

21. You seem to be a good person to ask my question.

Are propositions considered to be amendments to the Constitution or are they basically statutes? See my analysis below for why I think this is a relevant distinction.

[LeftCoast]

3. Um....

1. The CA state courts hear this case. They eventually rule the state DOMA unconstitutional as per the state constitution.

2. That ruling is appealed to the federal courts using the federal DOMA as an argument. BUT the federal courts (and maybe I am naive, but I believe the current SCOTUS would) rule the federal DOMA unconstitutional. OR they could rule regardless of the federal DOMA, marriage is a state matter and the state court ruling stands. End of story.

---

I don't think that the ruling could be referred to the USSC because this is a state matter. If it is ruled that the state Const. demands equal marriage rights for both gays and straights then that's it as far as that particular legal challenge.

This changes the moment someone tries to take a CA or MA marriage across a state line and wants another state to recognize it. THAT would be an issue for the SC.

[Cptn Kirk]

7. Are you sure?

"I don't think that the ruling could be referred to the USSC because this is a state matter. If it is ruled that the state Const. demands equal marriage rights for both gays and straights then that's it as far as that particular legal challenge. "

The federal DOMA *will* be in play. A federal law can't be ruled on by state courts. It will have to be appealed to a federal court IF they want to argue the federal DOMA in relation to CA law. (please read the federal DOMA and you will understand why) At which time the federal court will (as you suggest) possibly reject the case on the grounds that it is a state matter.

[LeftCoast]

25. As far as I know, DOMA only refers to Federal recognition

The legal challenges to the SF weddings are based on state law. I'm no lawyer though...so don't quote me. :)

[Ediacara]

8. crossing the line

The state line that is.....

Wouldn't that also bring up the interstate commerce clause of the US Constitution, forcing all states to recognize contracts created in one of the several states? Or am I off base here?

[Cptn Kirk]

10. Yes it would

You are talking about full faith and credit.

But read the constitution and the federal DOMA.

(Article IV Section 1 US Constitution

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. *And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.*")

In the constitution under full faith and credit congress is granted the ability to decide WHAT documents will be recognized from state to state. (see the final line above) The federal DOMA explicitly states that same sex marriage licenses are not to be recognized in other states. Thus this part of the act is legal.

BUT - the federal DOMA is also probably unconstitutional under the 14th amendment. If it is ruled to be unconstitutional, THEN full faith and credit will take effect and other states MUST recgonize CA/MA/etc same sex marriage licenses as per the US constitution Article IV section 1.

[lcooksey]

24. Some het marriages not recognized by other states

I posted links to an article and on-line chat by a "conflict of law" specialist at washingtonpost.com in this other thread:
http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=104&topic_id=1127203#1127774

States do recognize nearly all marriages performed in other states, but not 100%. There is precedent for them to have a little leeway on this.

[BR_Parkway]

14. Exactly, the same as Mass

If the Mass Supremes could have been overrulled by the Fed, some Save the Family from Homos group would have already filed. The reason that they didn't is that the decision of the Mass Supremes was to expand people's rights - they included more. If their decision would have excluded more or taken a group's rights away, then it could have been kicked up to the Fed. That is why the only option they have now is to actually amend their constitution, there are no legal challenges to make. That's also why so many are trying to get their states are amend their constitutions.

If California rules that the state constitution says that not allowing gays to marry is unconstitutional, there is no further appeal to Fed or Federal DOMA. CA marriages would be recognized by the state, then anyonw married there (or Mass) that goes to another state could sue to challenge that state under it's laws and then under the Fed DOMA laws.

If the Fed DOMA is upheld on the grounds that states can pick and choose if they will or won't allow gays to marry, then all contracts that cross state lines are in jeopardy. Because of various states maximum interest rates and usary laws, credit cards that are issued across state lines are exceptionally vulnerable. If I live in NC and have a credit card issued from another state, I would have grounds to argue that I don't have to pay the bill that I run up since my state laws don't match up with theirs - this is the entire basis of the FF&C laws, and this is what is scaring the hell out of the fundies now, one state means all states after a few legal skirmishes.

[Cptn Kirk]

16. Not true

because the fed DOMA says states have the right to define marriage *in addition to* the full faith and credit section.

CA will argue that the law (state DOMA) that was struck down on CA constitutional grounds should not have been struck down because federal law (higher than the CA constitution) says it was legal. This issue will have to be addressed in federal court if it is to be argued. (I have a very hard time believing the conservatives will not attempt this - and every other - legal route) Fed law ALWAYS trumps a state constitution. The state laws will be addressed by the state courts, but it will be heard in fed court on the grounds that DOMA causes the state constitution equal protection clause to be irrlevent in this matter.

"If the Fed DOMA is upheld on the grounds that states can pick and choose if they will or won't allow gays to marry, then all contracts that cross state lines are in jeopardy. "

This is not true at all. The constitution states congress has authority to regulate full faith and credit. (Please see the last line of Article IV section 1) They have FULL and LEGAL authority to say those "contracts" you refer to are to be recognized, but X other thing is not. If DOMA is upheld it will not effect any other full faith and credit issue in the slightest.

However, the fed DOMA IS (IMO) unconstitutional per the 14th amendment.

[kiahzero]

18. No, it could go to the USSC

How do you think Lawrence v. Texas got there? After an issue hits a state Supreme Court, the next appeal is the USSC.

[Snow]

4. It sounds circular....

1. CA courts hear the case (which has been filed by conservative churches, by the way). They rule CA DOMA unconstitutional.

2. The fundies take it to the SCOTUS, but the federal DOMA says states have the authority to define marriage. Isn't that what CA just did by overturning the DOMA & saying it was unconstitutional by the CA constitution? Overturning the state DOMA is the state defining marriage, right?

Next step = Chicago starts issuing same-sex licenses. That'll make things fun.

[Maat]

6. It sure will.

[Cptn Kirk]

9. It's not cicular at all

In the US justice system there is no possibility of circular rulings. Eventually it will get to the top, (or TWO courts, one being the appeal rule the same as the previous court) and that ruling will be the end of it.

[kodi]

12. its actually a lot easier than that argument.

an adult person's rights are dependent upon him/herself, they are not dependent upon another person.

if one allows a marriage contract engaged by one man and one woman , but not between two men or two women , then the sex of the other person is the predicating circumstance for john's or mary's own right to marry.

there is nothing in the constitution that allows for the restriction of a person's rights because of the state of being of another person.

the predicate for personal rights is selfhood, not somebody else's sex organs.

the constitution is being attacked by bush and his activist judges in this matter.

[Cptn Kirk]

13. Errr...

Actually (contrary to what is shown on TV) you can't just walk in to a court room and say "no person can be denied X." and not back it up. You will have to quote *specific* legal reason behind your statement or you *will* lose in cases like this.

Honestly, I'm not even really sure what you are getting this from, or if such law exists...

[mondo joe]

15. Look to CA Perez v Sharp - struck down anti-miscegnation laws

Read the California Supreme Court decision "Perez v. Sharp," which struck down that state's anti-miscegenation laws.

Here are just a few paragraphs:

Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men. There can be no prohibition of marriage except for an important social objective
and by reasonable means. . . .

Legislation infringing rights must be based upon more than prejudice and must be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws. . . .

In determining whether the public interest requires the prohibition of a marriage between two persons, the state may take into consideration matters of legitimate concern to the state. Thus, disease that might become a peril to the prospective spouse or to the offspring of the marriage could be made a
disqualification for marriage. Such legislation, however, must be based on tests of the individual, not on arbitrary classifications of groups or races, and must be administered without discrimination . . . .

http://www.multiracial.com/government/perez-v-sharp.html

[Cptn Kirk]

17. Excellent

Sounds like we may also have a court precedent. This only further adds to the argument the state DOMA is unconstitutional.

Thank you for the reference.

[StopThief]

20. Question: Were the anti-miscegenation laws statutes. . .

or propositions? If they were statutes, I don't think this is relevant to a proposition. See my analysis below.

Does anyone know if I am incorrect in believing that propsitions are actually treated as amendments to the Constitution?

[Cptn Kirk]

23. See my response below

RE: props & amendments.

[StopThief]

19. I could be wrong, but I believe you are incorrect.

My understanding of the "proposition" process in California, is that they are actually amendments to the Constitution. If that is the case, the only way they could be trumped by another section of the Constitution is if they are in some way ambiguous. The California state courts will have no choice but to find against gay marriage.

[Cptn Kirk]

22. I have checked

and prop 22 ONLY added the DOMA to 308.5 CA Family Code. (this is general state law here - NOT the constitution)

I have checked the current CA constitution provided by the Legislative Council of California (I am assuming this gov office is providing an accurate constitution) and there is NO reference to marriage only being between a male/female.

I have cited the applicable law. Please look it up.