United States Supreme Court To Take Up Prop 8 And Doma

[Bart Burk]

Nothing coming from the same sex marriage legal battles has removed a religious right.

Not yet. But you can rest assured our politically correct society will get there.

[The Nehor]

Not yet. But you can rest assured our politically correct society will get there.

I have seen too many inevitable prophecies of doom thrown out throughout my life that pass unfulfilled to rest assured of any such thing.

[RobertAC]

You misunderstood. I said compelling a religious minister to perform a marriage would violate the 1st Amendment.

I would agree. In California, where I live, clergy are not licensed, per se, to perform weddings. Family Code § 400 provides that the persons authorized to solemnize marriage ceremonies in California are :

• 
  A priest, minister, or rabbi of any religious denomination.
  
• 
  A judge or retired judge, commissioner of civil marriages or retired commissioner of civil marriages, commissioner or retired commissioner, or assistant commissioner of a court of record in this state.
  
• 
  A judge or magistrate who has resigned from office.
  
• 
  Any of the following judges or magistrates of the United States.
  
• 
  A justice or retired justice of the United States Supreme Court.
  
• 
  A judge or retired judge of a court of appeals, a district court, or a court created by an act of Congress the judges of which are entitled to hold office during good behavior.
  
• 
  A judge or retired judge of a bankruptcy court or a tax court.
  
• 
  A United States magistrate or retired magistrate.
  
• 
  A legislator or constitutional officer of this state or a member of Congress who represents a district within this state, while that person holds office.
  
• 
  There is no litmus test as to who is a minister, and the County Recorder will not make any inquiry as to the church the marrying member of the clergy is affiliated with. In short, any person who believes they are clergy may marry two people. However, the state does not license the clergy, nor do they require the clergy to do anything other than to return the original marriage license to the County Clerk or County Recorder as applicable within 10 days of the date of the ceremony.
  

[Bart Burk]

Nothing is sure. A gay's right to marry another gay in California is a civil right. (Maybe not in other states, but it is in California.) The right to speech is a civil right. Which is the more powerful right? Who is to say?

It was a right the court invented.

[Bob Crockett]

Welcome to common law.

[blackstrap]

Back in 1970 +/- there was a law formulated which called for equal housing for males and females on university campuses. The law was about 1 or 2 sentences long. By the time the bureaucrats got done making the regulations which would be used to define this law there were a stack of pages several feet high outlining procedures and fines etc. The Church had to fight the interpretation that equal housing meant that males and females must be allowed to live in the same dorm even the same room. It was quite a battle to persuade the govt that such was not the intent of the original law.

Such is the way of govt and eternal vigilence is needed to curb abuses of even the most innocent laws.

[california boy]

Part of an article about what is before the Supreme Court and the implications. The full article is here

The Angst

When the Ninth Circuit issued its narrow ruling in Perry, holding that the reason Prop 8 had to go was because it took away rights previously granted, many experts saw this as a way to let the Supreme Court take an incremental step toward marriage freedom without invalidating every single marriage ban out there. That decision was based on a particular, though by no means rock solid, interpretation of Romer v. Evans, which held that a provision of the Colorado Constitution that took away the rights of pro-gay advocates to seek protection for discrimination at any level of government save re-amending the state constitution was unconstitutional.

The Supreme Court's question is much broader than, say, "Whether California violated the 14th Amendment by taking away the right to marry from gay persons." And, by framing the legal arguments around the broader scope of the original district court decision, in which Judge Vaughn Walker declared the marriage ban to be a violation of the 14th Amendment regardless of the manner in which it happened, there certainly is the possibility that the Court could come back and hold that a one-man, one-man definition does not violate the 14th Amendment. That decision would hurt us because it would not only affirm California's ban, but those in every other state.

The Angst is Understandable, but Unwarranted

For the same reason that I do not think the Court is ready to hand down a nationwide right to marry for all, I also think the Court is not willing to enshrine marriage discrimination in the Constitution if a state wants it. Here's why:

There is a great debate going on in this country about the freedom to marry and it's a debate whose tide has turned, with a consensus emerging that it is not only okay to let gays marry, but also a good thing. Even the conservative George Will thinks it's just about a done deal. But, as the debate rages, the Court is less likely going to be willing to step in and make a clear statement cutting that debate short. Even when it decided Loving v. Virginia in 1967, it only had to invalidate 16 state laws and the national consensus was against these laws for the most part. And, when it decided Griswold v. Connecticut in 1965, it only had to invalidate a few state anti-contraception laws and even those had stopped being enforced.

Plus, the Court has generally supported incremental change rather than wholesale legal revolution. That's probably a good thing: stability in the law breeds order, respect, and economic and social growth. And, this preference for slow and steady change does not mean the Court would reject DOMA but uphold Prop 8. That's too easy and fails to understand the legal arguments behind incremental change and the Prop 8 case, in particular. Incremental change is more likely to happen when the Court rejects DOMA and rejects Prop 8, while limiting the scope of its Prop 8 decision.

The central reason not to worry is this: A broad question does not necessarily require a broad answer. The Court is giving itself the space to decide what it needs to decide and it can choose a holding that fits anywhere within the spectrum between nothing and everything. It's like buying a gallon of ice cream: Just because you bought the whole thing doesn't mean you have to eat it all in one sitting.

There are, in fact, three ways the Court could reject Prop 8 without diving into the deep end.

1. Use procedure. The second question posed by the Court is the standing question. Do the Prop 8 Proponents, the citizens of California who authored and ran the political campaign to enact the marriage ban, have standing under Article III of the Constitution to step into the shoes of the State of California after California refused to defend Prop 8?

We talked about this quite a bit when the case was at the Ninth Circuit. If you recall, California did not want to defend Prop 8, so the proponents of the initiative took the State's place. Do initiative proponents have standing? It's a question about who has to show that they were harmed: do the proponents have to show that allowing gays to marry hurts them (they couldn't show that in a "particularize[d]" way, as is the requirement to bring a federal case), or do we just have to show that the state was adversely affected and that proponents could step into the state's shoes?

The California Supreme Court said that California state law allowed initiative proponents to take the place of the state and this allowed the Ninth Circuit to grant standing on the latter theory and distinguish some language from a Supreme Court case called Arizonans for Official English v. Arizona. In that case, the Court expressed "grave doubts" that random citizens who happen to be initiative proponents could have standing. But, in California, the law says they could; in Arizona, the law never granted that authority.

That holding was clever and sound, but by no means the final word on the matter. The Supreme Court could disagree with the Ninth Circuit's analysis of Arizonans and find that on any standing theory, the proponents lacked it. Though, because the Court would have to accept the California Supreme Court's word as a binding interpretation of state law -- state courts are experts on state law, federal courts are expects on federal law -- a rejection on standing would be based on the Arizonans "grave doubt."

If this happens, the district could decision would be reinstated, Judge Walker's order goes into effect, and gays could marry in California.

2. Use the Ninth Circuit's substance. If the procedural path is like buying a gallon of ice cream and then realizing you have no clean spoons to eat it with, the substantive path is like buying the gallon, taking two scoops, and saving the rest for later.

The Supreme Court could answer its broad question in the same way the Ninth Circuit did: "No, California cannot define marriage as a union of one-man, one-man only because California cannot be in the business of taking away rights merely to burden a particular disadvantaged subgroup of people." That would be specific to California.

The problem with just affirming the Ninth Circuit's decision is that it really isn't the most sound legal decision. It relied on Romer, which took away decidedly more rights -- the power to use the levers of political power at all levels of state government to fight for protection against discrimination. It was the sheer breadth of what Colorado took away that generated the inference of animus toward gays, not simply the taking away of something. All Prop 8 took away was the word "marriage." This fact required the Ninth Circuit to spend quite a bit of column inches on why the word "marriage" is so important. And, that word is "important." But, Prop 8 left everything else in place. All the rights and privileges the state gives to heterosexual married couples would still be given to gay domestic partners. That wrinkle makes the argument iffy.

Still, the idea isn't off the mark. There are plenty of other decisions in the "taking away of rights" area that could lend credibility to the theory. So, all the Supreme Court would have to do is take it's too scoops and add the ooey-gooey toppings the Ninth Circuit left off. Like the procedural path above, this would allow marriages to start in California -- and in California alone -- almost immediately.

3. Take a different limited path. Professor Yoshino deserves credit for reminding me about another option. If improving upon the Ninth Circuit's decision is like having two scoops of the gallon of ice cream you bought, this would be like buying the gallon of vanilla and having two scoops of the pint of chocolate you bought, as well.

What is unique about California is that Prop 8 created an "everything but marriage" situation. There are a few other states like that:

Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island. Oddly, as I have argued before, the "everything but" marriage status makes the least sense of any marriage ban; it would be more rational if a state discriminated against gays in every way possible than treated them equally in 99 out of 100 respects. Think about it: how could you legitimately argue that you think gays marrying will have this or that negative effect on children or education or divorce rates if you already let gays adopt, raise children, and divorce. You stand to make more sense if you were actually consistent in your hatred of gays. Disgusting, no doubt, but at least consistent. To be fair, I don't think this is a likely result. Neither does Professor Yoshino. But, it could give you a window into the myriad options the Supreme Court has. Just because it took the Prop 8 case and took it broadly does not mean that we are poised for a Bowers v. Hardwick type loss. The political winds and the law are on our side.

Conclusion

Let me be clear: I am not predicting that the Court will choose one of these options over the other two. I don't have a crystal ball and I don't gamble. I tried to show that the Court has options between a nationwide right to marry and a nationwide block on gays marrying. The lesson here: Keep calm, and carry on.

***

Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues

Edited December 11, 2012 by california boy

[Linda]

You misunderstood. I said compelling a religious minister to perform a marriage would violate the 1st Amendment.

It is the state which stipulates by law who may get married. A religion can have wedding ceremonies but a religion only can decide for its members,,but NOT for the whole society. If e.g. the LDS would say that only young heterosexual people could marry,, it would be their good right to do this. But the LDS Church (or any other religion) would not have the right to demand this for the American society.

Do you understand what I want to say with that?

[The Nehor]

It is the state which stipulates by law who may get married. A religion can have wedding ceremonies but a religion only can decide for its members,,but NOT for the whole society. If e.g. the LDS would say that only young heterosexual people could marry,, it would be their good right to do this. But the LDS Church (or any other religion) would not have the right to demand this for the American society.

Do you understand what I want to say with that?

I do not disagree. I am not sure why you were responding to me.

[Linda]

I do not disagree. I am not sure why you were responding to me.

A church may decide the for its members not however for the (American) society.

[The Nehor]

A church may decide the for its members not however for the (American) society.

Again, I do not disagree. We were discussing whether clergy could or would be forced to perform marriages they or their faith did not approve of.

[Scott Lloyd]

Elder D. Todd Christofferson of the Quorum of the Twelve, who is an attorney and former law clerk for U.S. Supreme Court Justice John Sciricca, has expressed concern about the erosion of religious liberty in the world in general and the United States in particular.

Observing this trend, I should think it quite plausible that the scenario Bart Burk has warned of may someday come to pass.

Here, for reference is an excerpt from my news story covering Elder Christofferson's address to the Sons of Utah Pioneers in May of 2011:

"The threats to religious freedom are among the things that concern us at this present time," Elder Christofferson said. Noting that the Church has enjoyed a season, at least in North America, of acceptance of religious expression and activity, such acceptance is beginning to recede, he said.

"We see it, around the world," Elder Christofferson said. "We're a worldwide church; we're not concerned only with what the situation might be in the United States, but of course in every country. But even here, there's a diminished stature for the First Amendment, for the freedom of religion."

Since the 1970s or so, the exalted status given to freedom of religion has been eroded by court decisions, said Elder Christofferson, whose professional background is in the law. "It used to have a very highly protected status in the law in this country; it no longer does," he said, explaining that freedom of religion now must compete with lesser rights, such as employment anti-discrimination rules.

"We see it elsewhere," he said. "We narrowly avoided in the United Kingdom just last year legislation that would have made it illegal to discriminate on religious standards for any kind of employment, including in our temples. We could not have made the temple recommend a prerequisite for someone to work in the temple, if you can imagine."

In U.S. government some are beginning to use the phrase "freedom of worship" instead of "freedom of religion," Elder Christofferson said.

"Freedom of worship is a much smaller concept," he explained, saying it pertains to religious rites and ceremonies. "Religious freedom is so much broader than that. As you know this freedom is not simply worship, but the practice of religion in all of its aspects: to organize, to meet, to proselytize, the freedom of people to change their religion if they choose, all of those rights are increasingly under attack.

"And just the ability to speak, to have a part in the national debate on issues is under tremendous pressure by movements from groups who say any religiously based opinion or position is not legitimate, cannot be heard, cannot be received or considered in the public square."

Edited December 11, 2012 by Scott Lloyd

[Tacenda]

Dallin H. Oaks has also spoken out for religious freedom, quite recently, now I get why and the urgency in it.

[Saints Alive]

I wonder if we would ever get to the point where religion was no longer allowed to marry people. I think it is conceivable that at some point in the future, religion not government, could be banned from the marriage business. There is already some precedent for it in polygamy laws. With the rise in religiously unaffiliated someday a majority of the population might not see a reason that religions need to marry people.

[thesometimesaint]

The University of Notre Dame will be required to provide such things as will BYU under the current regulation beginning in August 2013. The Archdiocese of Indianapolis and the LDS Church will be required to provide such coverage as well. The only organizations exempted will be those whose mission is completely religious -- if they have a school or a soup kitchen that serves people who aren't of their religion they will be required to provide the insurance. It is not a stretch to believe that a church officer with the legal right to perform marriages will be required to marry same sex couples in the event such marriages are legally recognized.

Isn't gonna happen. A business owner can't dictate the religion of his employees.

[thesometimesaint]

I wonder if we would ever get to the point where religion was no longer allowed to marry people. I think it is conceivable that at some point in the future, religion not government, could be banned from the marriage business. There is already some precedent for it in polygamy laws. With the rise in religiously unaffiliated someday a majority of the population might not see a reason that religions need to marry people.

Make them ALL Civil Unions, then let the churches, synagogue, mosque, what have you, have any religious ceremony they want.

[Saints Alive]

Make them ALL Civil Unions, then let the churches, synagogue, mosque, what have you, have any religious ceremony they want.

That is one possibility but what's stopping the government from prohibitting religions from calling their ceremonies marriges? Why would the government switch to the civil union term if they can just as easily keep religions from using the marrige term. Not that either scenario is likely in the near future but I think it is plausible.

[thesometimesaint]

Religions can call them ham sandwiches for all the difference it would make. Go to the county clerks office fill out the paper work. A Judge/Justice of the Peace says OK you are now married. After that 5 minute public "ceremony" the couple can have any private ceremony they and/or their church wants.

[Bart Burk]

Religions can call them ham sandwiches for all the difference it would make. Go to the county clerks office fill out the paper work. A Judge/Justice of the Peace says OK you are now married. After that 5 minute public "ceremony" the couple can have any private ceremony they and/or their church wants.

That's what I think should happen. I strongly doubt the state could ever have any say in what the church calls them. There would be no reason to.

[The Nehor]

Religions can call them ham sandwiches for all the difference it would make. Go to the county clerks office fill out the paper work. A Judge/Justice of the Peace says OK you are now married. After that 5 minute public "ceremony" the couple can have any private ceremony they and/or their church wants.

Can we start calling sealings "Joint Ascensions to Imperial Universal Domination and Omnipotence"?

[Saints Alive]

Can we start calling sealings "Joint Ascensions to Imperial Universal Domination and Omnipotence"?

I like it!

[thesometimesaint]

Can we start calling sealings "Joint Ascensions to Imperial Universal Domination and Omnipotence"?

Works for me.

[Calm]

That is one possibility but what's stopping the government from prohibitting religions from calling their ceremonies marriges? Why would the government switch to the civil union term if they can just as easily keep religions from using the marrige term. Not that either scenario is likely in the near future but I think it is plausible.

Wouldn't be a problem for us if the government was the sole marriage performer, we would only be performing sealings at that point.

[Calm]

"We see it elsewhere," he said. "We narrowly avoided in the United Kingdom just last year legislation that would have made it illegal to discriminate on religious standards for any kind of employment, including in our temples. We could not have made the temple recommend a prerequisite for someone to work in the temple, if you can imagine."

I find this remarkable.

And not having been in England, but have lived in Canada...I am wondering if the US is different enough to avoid the same sort of problems/challenges.

Edited December 12, 2012 by calmoriah

[Saints Alive]

If you don't "work" in the temple does the stipulation still hold? As far as I know no one is paid at the temple (at least not at the smaller ones without cafeterias or distribution centers)