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March 05, 2009

Gay Marriage Back in the Courts

The "black-robed tyrants" will be taking up the love that dare not speak its name again this week. Actually, there is news in California and in Massachusetts, but I figured it'd be easier to wrap it all up in one big old gay post.

First, the California Supreme Court is hearing the Prop 8 case today and has devoted a nearly unprecedented three hours to oral argument. No one is pretending that this case isn't a big deal. The argument will be from 9am to 12noon PST and can be streamed here (if their servers don't crash). The Court's Prop 8 page, which has all the filings and other information on the case is here.

Dean Ken Starr will get sixty minutes to advocate for Protect Marriage, the official sponsor of Prop 8. On the other side, Shannon Minter will represent the couples; he successfully argued the gay marriage case last year that kicked off this whole shindig. Jerry Brown, California AG, was allotted thirty minutes to present his peculiar argument. And a bunch of cities and counties, led by Los Angeles and Los Angeles County, San Francisco, and Santa Clara County will get thirty minutes for their arguments.

The issues are:

1. Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
2. Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
3. If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

The case law on the first issue is muddled at best. Let me one more time hate on a state that was stupid enough to allow constitutional amendments by majority vote, but fail to define the difference between an amendment and a revision.

Jerry Brown will be making an unusual argument that it does not matter whether Prop 8 is a revision or an amendment because either should be overturned by the Court. In his view, which is probably the least supported of the arguments being made even taking into account the sad state of the law on revisions, an "inalienable right" protected by the California Constitution can never be taken away by amendment or revision and that the Court last year determined that gay marriage is such a right.

Because nothing is ever easy, the third issue could also go either way. There is a great deal of law supporting the position that changes in constitutionally protected rights do not have retroactive effect unless there is an explicit statement of retroactivity in the legislation or, in this case, proposition. On the other hand, the intent of Prop 8 to nullify all California gay marriages and refuse to give them any recognition whatsoever in the future was pretty damn clear even without an explicit statement that it would apply retroactively.

It will be interesting to see what the California Supreme Court does with this. Six of the seven justices were appointed by Republicans, but that did not stop the Court from finding 4-3 that the California Constitution forbids discrimination on the basis of sexual orientation and requires the overturning of a statutory ban on gay marriage. The Court then unanimously denied a petition for a stay of the effect of that decision until after the election.

Second, a pretty mixed group of individuals married in Massachusetts are challenging one section of the Defense of Marriage Act in federal court. Section 3 of DOMA prevents the federal government from treating gay couples married under state law as married under federal law. This has made it impossible for the couples, and in one case a widower, to receive things like health benefits, social security benefits, pensions, tax benefits, and in one interesting case a passport in his legal name. The plaintiffs argue that this is a violation of equal protection secured by the Fifth Amendment. The complaint is here (PDF).

I'll only mention the passport guy because it's a little different than what has become the "usual" equal protection complaint of gay spouses. Al Fitzpatrick married Keith Toney in 2004 and, as is legal under Massachusetts law, changed his name to Al Toney, so he would have the same last name as his husband and their daughter. His driver's license, credit cards, and other identifying documents now carry his legal name, "Al Toney."

However, when he sought a new passport with his new name the State Department rejected his request. The rejection letter informed Toney that because of DOMA "the marriage certificate issued by Massachusetts, which you have submitted in support of your name change, is not acceptable as evidence for recognizing an immediate name change on the basis of marriage." He also sent an affidavit and photocopies of his driver's license and voter registration cards attempting to get the passport issued in his legal name, but his request was still rejected.

His problem now is that things like airline tickets and hotel reservations purchased with a credit card have his legal name, but his passport has his old name. This has caused problems when he has to explain the inconsistency to strangers, often with a language barrier, abroad. Not to mention that it would be nice to be able to travel on the DL about that whole gay thing in certain parts of the world.

The case is one to watch out for.

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posted by Gabriel Malor at 09:46 AM

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