Legal Pad

Celebrating at City Hall

Cal Law's Dan Levine interviews same-sex marriage advocates at City Hall shortly after the release of Thursday's California Supreme Court ruling.

Marriage ruling: CNN Gets It Wrong

For several minutes today, CNN reported that the state Supreme Court had upheld the ban on same-sex marriage. I guess that's what happens when you only read the first few pages of a ginormous ruling.

Here’s the video:

—  Jessie Seyfer

VIDEO: Key Drivers of Marriage Challenge Reflect

In the weeks leading up to today's historic ruling on gay marriage, Cal Law staffers Mike McKee and Pam Smith asked some of the key participants in the four-year court battle to reflect on the experience. Stuart Gaffney and John Lewis were among those married during the brief period in 2004 when San Francisco handed out marriage licenses to same-sex couples. Dennis Herrera, San Francisco's city attorney, talks about coordinating the legal assistance the city received, and Therese Stewart, who led the litigation, explains what it meant to her. Videoediting by Jason Doiy.

Gay Marriage Ruling: Immediate Reactions

As the California Supreme Court’s ruling came down at 10 a.m. on the dot Thursday morning, Cal Law’s Evan Hill was outside the court building, to capture the reactions of some of the plaintiffs in the cases.

“Phone and hankie — two things a lesbian should never be without,” said Jewelle Gomez, at right, with her partner, Diane Sabin (in the photo at right; click to enlarge, of course).

“The moment that we heard the news, we felt a great sense of elation, and then the next moment we felt a deep sense of well-being,” said John Lewis, at right, with Stuart Gaffney, his partner of 21 years.

Added Gaffney: “The court decided in favor of the most basic values … to marry the person you love.”

— Jessie Seyfer

Nuggets from the Concurrences & Dissents

Ongoing: The Supreme Court's 172 pages of rumination on marriage rights include the four-justice majority's opinion led by Chief Justice Ronald George, plus a concurrence by Justice Joyce Kennard, and dissents by justices Carol Corrigan and Marvin Baxter (the latter joined by Ming Chin).

PUT YOURSELF IN THE JUSTICES’ SHOES
The crux of Justice Marvin Baxter’s dissent accuses the majority of overstepping the judiciary’s role. He acknowledges that the courts have to provide a check on “majoritarian” abuse, but at the same time emphasizes the importance of letting The People set public policy. From Page 7 of his dissent:

History confirms the importance of the judiciary’s constitutional role as a check against majoritarian abuse.  Still, courts must use caution when exercising the potentially transformative authority to articulate constitutional rights.  Otherwise, judges with limited accountability risk infringing upon our society’s most basic shared premise — the People’s general right, directly or through their chosen legislators, to decide fundamental issues of public policy for themselves.  Judicial restraint is particularly appropriate where, as here, the claimed constitutional entitlement is of recent conception and challenges the most fundamental assumption about a basic social institution.

Seems to us this is where the rubber hits the road on any case or movement in which a minority population is claiming a violation of its rights (see Rosa Parks, Brown v. Board of Education, women’s suffrage … ).

The justices’ job isn’t an easy one, and we aren’t making light of the very real dilemma they were weighing. But as The People, how do you think majority rule and minority protections should properly be balanced?

THEY'D DO IT FOR THE CAKE?
On page 20 of his dissent, or 147 of the whole magilla, Baxter points out that gay people have just as much right to marry someone of the opposite sex as anyone else, so what's the worry?

I also disagree with the majority’s premise that, by assigning different labels to same-sex and opposite-sex legal unions, the state discriminates directly on the basis of sexual orientation. The marriage statutes are facially neutral on that subject. They allow all persons, whether homosexual or heterosexual, to enter into the relationship called marriage, and they do not, by their terms, prohibit any two persons from marrying each other on the ground that one or both of the partners is gay.

The justice starts his disagreement with the application of strict scrutiny on page 21 (149), for those struck by that key aspect of the ruling.  For more, follow the jump.

Panning for Gold in the Gay Marriage Ruling

Ongoing: Throughout the day, we'll be pulling nuggets of significance and silliness out of the monster 172-page gay marriage ruling and posting them here.

THE MONEY QUOTE
Page 11:

... we conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes — the interest in retaining the traditional and well-established definition of marriage — cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest.

SEPARATE IS NOT EQUAL
Almost directly following the above quote, the justices skewer the linguistic wonkery of preserving the word "marriage" for straight couples and letting homosexuals drink from a separate water fountain labeled "civil unions," or something:

... retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.

For more, from the historic designation of gays as a "suspect class" to the politically correct niceties of defining our terms, follow the jump:

Supremes Strike Down Gay Marriage Ban

Breaking News: The California Supreme Court has cleared the way for same-sex marriages. In a 121-page ruling, Chief Justice Ronald George wrote that the state laws limiting marriage to heterosexual couples violate the California constitution.

The court applied strict scrutiny to the laws, finding gays and lesbians a suspect class. “We conclude that to the extent the current statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional,” George wrote.

Justices Joyce Kennard, Kathryn Mickle Werdegar and Carlos Moreno concurred. Justices Marvin Baxter, Ming Chin and Carol Corrigan dissented. Here's the whole 172-page package: opinion.pdf  

Mike McKee's first take on the story is live at Cal Law now (free reg. req'd). The same link will be updated later today, with the final version live before 7 p.m.

—  Scott Graham

Balloons For Jurors: Feel the Love, People

California's juror appreciation week begs for some kind of Dilbert comic-strip treatment, what with all the random tokens and souvenirs that it prompts.

But Legal Pad can't really draw well. All we can offer is our vast experience on the receiving end of office spirit-building efforts. And based on that, Yolo County's got our vote.

It has some of our favorite things, assuming that appreciation isn't going to be shown with money (and given the court's fiscal outlook, we'd say there's no point in wishing for that). Come to think of it, this feedback might be good for any number of law firms in today's economy:

Cal. Budget Revised: Now With Blackmail Flavor!

May is usually the one time of year when legislative Democrats and Republicans can agree on something: They hate the governor’s revised budget. Today was no different.

Politicians from both sides of the aisle blasted the governor’s plan to close a $17 billion budget deficit with a mix of health and welfare cuts, a sketchy lottery “securitization” plan and a possible one-cent hike in the sales tax.

Courts escaped any additional cuts beyond the 10 percent hit they took in the January budget. The governor did propose taking a $6 million loan from the attorney general’s False Claims Act Fund — relative chump change from an account that collected hundreds of millions of dollars during former AG Bill Lockyer’s active tenure.

The few law firms in California that still operate as limited liability corporations would see a budget-related change next year under the governor’s plan. He wants LLCs to pay their 2010 fees, usually due in March, in June 2009. That would force LLCs to pay twice in 2009, generating an extra $360 million for the state.

But the real budget action for some lawyers may come in putting together – or challenging – the governor’s plan to soup up the state lottery. Gov. Arnold Schwarzenegger says he wants to enhance the games and trade the additional revenue they generate — maybe an additional $3 billion or $4 billion a year — for an immediate payment from investors of $15 billion or so. The governor wants to put the plan before voters in November with an additional caveat: if they don’t approve it, he’ll trigger a temporary one-cent increase to the sales tax in 2009.

Don’t call it budget blackmail, Schwarzenegger told reporters. It’s just a creative way to enhance state revenues, he said. But Senate President Pro Tem Don Perata, D-Oakland, called it “shameful.” Other lawmakers were just as critical.

We haven’t even weighed in on the governor’s plans to cut aid to immigrants, to eliminate the annual raise for SSI recipients and to siphon public transportation money to the general fund. But we’re sure that lawyers representing those groups will.

—  Cheryl Miller

Same-sex Marriage Ruling Tomorrow

It's finally happening. The California Supreme Court is issuing its ruling on same-sex marriage tomorrow at 10 a.m.

Here's our story on oral arguments in the cases, if you want to brush up on the issues. Check out callaw.com and this here blog for full coverage tomorrow!