Outline For Proposition 8

 

The following is an outline put together by a friend of mine who has done a lot of research into the implications and history of Proposition 8. Stephanie K is a practicing attorney in Orange County, CA:

 

PROPOSITION 8

I tried to simplify the issues and the information. While it can be expected that there will be some inaccuracy flowing from simplification, but I did my best not to overgeneralize. As always, I appreciate any contrary analysis or notification of any glaring errors.

I. Civics Review — The hierarchy/pyramid of legal rights from the bottom up:

(1) Statutes are at the bottom of the legal pyramid. They are passed by the legislature and can be amended, revoked or superseded at any time by the legislature. (Family Code section 300 codified man-woman marriage before Prop. 22 was passed.)

(2) Initiative-passed statutes are above legislative statutes on the legal pyramid because the legislature may not amend, revoke or supersede. Such actions take another vote of the people. (The goal of Prop. 22 was, in my opinion, to eliminate the possibility of the legislature amending, revoking or superseding Family Code section 300.)

(3) The California Constitution sits above these on the legal pyramid. The state supreme court is the sole authority for determining whether or not statutes (either kind) comport with the Constitution. (In May, the Prop. 22 statute and FC section 300 were invalidated by the state supreme court in In re Marriages on grounds of (1) privacy, (2) infringement of Equal Protection Clause and (3) substantive due process. This was only the first of two major holdings in that case; the general population thinks the story ends with striking the two statutes but the second holding was much more significant in that it can — and already has — affected the lives and rights of other (non-gay) people. More on that in II(2) below.)

(4) Most folks think the legal pyramid ends there and that the Constitution is the supreme law of the land. This is not so. There are a class of statutes (either kind works) that can legally infringe constitutional rights. Though they are statutes, the supreme court and ultimately only the supreme court — once presented with a case giving it opportunity — can deem that the interest advanced by the statute is a “compelling governmental interest” (otherwise stated, it passes “strict scrutiny”) such that infringement of constitutional rights is justified. Examples of “compelling governmental interests” would be protection against terrorism or — at the top of the hierarchy — protection against race discrimination. (Footnote: Historically, other classes of discrimination — marital status, gender even — were of a lower order than race discrimination.)

 

II. In re Marriages case

As stated above, the decision did two things:

(1) Invalidated both man-woman marriage laws on the books, thus opening the way for other marriages (in a footnote, they suggested that statutory prohibitions against polygamy and incestuous marriages would stand).

(2) In conducting the constitutional analysis to come to the first conclusion, they equated sexual orientation discrimination with race discrimination and stated that sexual orientation as a class would satisfy strict scrutiny (as a “compelling governmental interest”). This was unexpected, monumental and the real reason why the gay rights folks were dancing in the streets of San Francisco. Imagine, you go to court to see if you can get married and you end up getting a decision that puts your interests at the top of the legal pyramid. Laws in your favor can trump the constitutional rights of others; you will always win. I’ll get to the import of this more in IV below.

 

III. Free exercise jurisprudence — What happens when I can’t comply with the law because it is against my religious beliefs/practices?

A brief history is necessary here. Recall that free exercise rights can stem from both the U.S. and the state constitutions. The state constitution must go at least as far as the federal, but need not advance more rights than provided under the federal.

(1) 1800’s: U.S. v. Reynolds. This was the first case addressed by the U.S. Supreme Court in which free exercise rights were advanced as a defense by someone in violation of a law. In a nutshell, the court determined that a compelling governmental interest (I’ll call it a “CGI” from now on) must be found in order to infringe free exercise rights. In constitutional law, the CGI or strict scrutiny standard is as high as you can get; compare it to “beyond a reasonable doubt” in the criminal context. It had better be a VERY good reason. Thus, free exercise standards are most protected when it takes a CGI to justify infringement.

(2) 1990: Employment Division v. Smith. In a move that surprised constitutional scholars and the other two branches of government, the Supremes said that so long as a law was a “neutral law of general applicability,” free exercise defenses would not stand. In other words, so long as a law was not directed at religion and otherwise applied to everyone, it doesn’t matter that the law burdened — slightly or extremely — the exercise of one’s religion. As an example, you can’t have a law that says “Jewish people must wear red baseball caps on Saturday night.” It is not neutral and not generally applicable. But you can have a law — granted the example is not the best; I’m just not that creative — that says “All people must wear red baseball caps on Saturday night.” It does not matter that this infringes upon the religious practices of Jewish men. All that matters is that the law is neutral and generally applicable on its face. This is the opposite of CGI/strict scrutiny. It is an incredibly low standard and takes religious exercise completely out of the analysis. In my view, this decision effectively struck the free exercise clause from the U.S. Constitution — and any other state constitution for states that choose to only follow the federal interpretation.

(3) RFRA: Congress and President Clinton were so gobsmacked by the foregoing decision that they passed (something like 97% in favor) and signed into law, respectively, the Religious Freedom Restoration Act, restoring CGI/strict scrutiny to free exercise cases.

(4) 1996: Flores v. Boerne. Back at the U.S. Supreme Court, the court again looked at a case where a law and the free exercise clause conflicted. The court struck RFRA as unconstitutional, saying that it is the Court’s exclusive role to interpret the Constitution, that the source of “neutral law of general applicability” was in constitutional interpretation, and that RFRA was Congress’ attempt to step into the Court’s exclusive role. The Employment Division standard continues to apply to federal free exercise cases today.

(5) 1996: Smith v. FEHC. Back home in California, this case arose. Facts of the case: Christian Widow Smith owns 2 duplexes and refuses to rent to an unmarried heterosexual couple because doing so, in her religious belief, would be a sin and she would never see her dead husband again. Couple files complaint for violation of the Unruh Act (no discrimination on the basis of numerous protected classes including marital status). There is a clear violation, which Smith does not dispute, but she asserts her free exercise rights. Pre-Boerne, there was some uncertainty about the standard to apply to cases implicating the California constitution’s free exercise clause. Note that California’s clause is not worded the same, but is broader than the federal. The CA Supreme Court did both an Employment Division analysis and a RFRA analysis. Under Emp. Div., she clearly loses. Under RFRA, the CA Supreme Court never got to the CGI test because they ruled — in an interesting twist of logic — that her free exercise rights were not burdened to begin with. She chose to get into the housing business. They did not say what standard applied to the California constitution.

(6) Since 1996, we’ve been waiting for the CA Supreme Court to tell us if we’re using the “neutral law” standard or the CGI standard to address cases implicating the California Constitution’s free exercise clause. Last week, we got our answer. The court determined that a religiously-motivated doctor could not refuse infertility treatment to a patient on the basis of sexual orientation. That’s what the news told you, but here are the nuts and bolts of how they arrived at the decision. (a) In California, we now apply the Employment Division “neutral law” standard to free exercise cases. (b) Even so, prevention of sexual orientation discrimination is a CGI, so the doctor would lose anyway. So now, there are no free exercise rights in California either.

(7) Some constitutional scholars have suggested that sources of religious rights can be found in other clauses of the constitution. Until someone makes a persuasive argument to the appropriate court in the appropriate case at the appropriate time, we have the Employment Division standard. We’ll keep watching…

 

IV. What does this all mean?

(1) Under the Unruh Act, if you are in a business offering goods or services to the public, you may not refuse goods or services to anyone on the basis of sexual orientation, even if your religious beliefs and religious exercise forbid it. Of course, no one can force you to do anything, but you will be subject to claims, the payment of fines, damages, subject to cease and desist orders, etc. Mrs. Smith had to pay fines, pay damages to the couple, had a cease & desist and had to post notices on her properties. If you are an adoption lawyer and have issues about servicing gay couples, better go into another area of law. If you are an artist but do not want to accept commissions from a gay couple, your reason for refusal had better not be about sexual orientation. Last week’s doctors were told to decide whether to service everybody or service nobody. If you are a pastor marrying members of the public for a fee… If you are a church open to the public who offers to rent a portion of your property for ceremonies…

(2) The court made the connection of sexual orientation discrimination to race discrimination. Recently, a news story from Canada reported that a woman lost custody of her son after he wore a swastika to school. She taught hate speech. That was child abuse. What if she were teaching that homosexuality is a sin? Hate speech? Child abuse? If I can think of the argument, someone smarter than me — a county social worker with broad latitude even — can too.

(3) Sexual orientation and identity will be taught in schools. There is already a growing movement giving public schools greater power over the upbringing of children, while parental rights are going down. Opt out rights are and will continue to be threatened.

(4) In a nutshell, 4 judges reordered the legal structure of how these issues are addressed in In re Marriages and last week’s case. 4 judges brought about law that the legislature could not do itself. Remember, the legislature could not strike the Prop. 22 statute, but 4 judges did just that.

(5) In re Marriages was not an end. It is the beginning. And last week’s case was just another piece of evidence of this. There is a powerful lobby behind a movement that has been at work for decades. What were you doing on 9/11 or 9/12? Were you thinking of Prop. 22 and the California legislature? I wasn’t, but this lobby was. On 9/12, while Californians were looking at NYC, these folks were passing sweeping legislation to try to curtail Prop. 22’s import. This lobby sends out testers to bring cases to trial to expand rights. They are very good at what they do; they have a lot of money and a lot of political support; they’ve been working for a long time. They tell you to live-and-let-live, and that is an easy and attractive position to want to accept, but that is the last thing these folks will allow you. They are not at all about letting you live-and-let-live because they want very much to affect how you speak, teach, work and act — your religious preferences have no respect and no bearing.

 

V. What about Proposition 8?

It does two things.

First, it restores man-woman marriage. Oh, yeah, marriage…. I haven’t mentioned this for awhile in this outline. The No on 8 crowd will be shouting that this is only about marriage. But if you look at the AFA video, about half way in there is a great quote from a woman who admits that it’s not about marriage for the No on 8 people. And now that you’ve just slogged through this epistle, you know it’s not just about marriage too.

Second, it gives people like last week’s doctors an argument that a Constitutional Amendment that does not recognize same-sex marriage does not comport with a policy decision — borne of 4 judges in a split court — that sexual orientation is a CGI, trumping other rights. It would not make sense to have those relationships disavowed by the constitution, on the one hand, but then give those same relationships primary legal import over other constitutional provisions, on the other. To be clear, this is just an argument. It is not a straight black-and-white strike-out as the first. It is an argument for an on-going legal debate — a statement by the people that the policy of 4 judges does not comport with the voice of the people.