D.O.M.A = Unconstitutional

-- President Obama.

Cal. Supreme Court to Answer Certified Question on Prop 8

From Law.com:

The California Supreme Court today said it would answer the standing question in the Proposition 8 same-sex marriage appeal at the Ninth Circuit U.S. Court of Appeals.

The justices unanimously agreed to say whether California law allows for ballot initiative proponents to defend the constitutionality of a measure when state officeholders refuse to do so.

The three-judge Ninth Circuit panel — Stephen Reinhardt, Michael Daly Hawkins and N. Randy Smith — sent the certified question to the Supreme Court in January after Reinhardt raised the idea during oral arguments Dec. 6.

The justices agreed to expedite the matter. In a short order, the Supreme Court set a briefing schedule that will allow for oral arguments "as early as" September. The first briefs are due March 14. Responses are due April 4.

Link.

Rhode Island Debates Same-Sex Marriage

Is it coming?

BREAKING NEWS: Gay Marriage Banned in Maine

Well, that was quick... Maine voters have overturned the law allowing for gay marriage.

For our previous coverage of this issue, click here.

Going Maine-stream? Voters To Determine Whether To Affirm Gay Marriage, Extend Medical Marijuana Law in Maine

An interesting story from the Bangor Daily News (HT: Daily Beast): The validity of Maine's gay marriage legalization hangs in the balance, with voters on both sides trying to finally put the question to rest.

The legalization question is joined by six other measures on the ballot, including extending the legalization of medical marijuana and requiring state spending increase caps to equal inflation plus population growth unless given direct voter approval.

For our previous coverage of Maine's legalization of gay marriage, see here.

Prop. 8 Rehearing Petition Filed

Per the docket sheet. It will almost certainly be denied, but anything's possible. Especially with an issue that has already created (somewhat) strange bedfellows in David Boies and Ted Olson.

Proposition 8 Opinion Forthcoming

The California Supreme Court has provided notice of its forthcoming opinion in Strauss v. Horton, the case testing Proposition 8's legality. We will keep you updated as we learn more.


------

UPDATE: According to the Court's website, the opinion will be issued this coming Tuesday, May 26th.

Maine Legalizes Gay Marriage

As the world waits for the California Court's Proposition 8 decision (the demise of which may be "refuted on InTrade"), another state has legalized gay marriage.

MSNBC reports that Maine's Governor, John Baldacci, has signed legislation passed yesterday legalizing gay marriage. Though he had "opposed gay marriage while supporting the idea of civil unions," in the past, Baldacci indicated that he had "come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage."

For those of you keeping track at home, Maine is the fifth state to legalize gay marriage (whether legislatively or via judicial decree) following--most recently--Vermont, and Iowa.

Vermont Adopts Gay Marriage Through Legislature

Breaking news: Vermont is the first state in the Union to adopt gay marriage through legislative enactment.

So, Jeff... is this ok?

UPDATE at 12:01 ET: Here's the link to the Vermont Constitution and it's Amendment process.

Here's my step-by-step reading of it:
(1) 2/3 Senate must propose it
(2) 50.1% of the House must accept it
(3) Both houses of the subsequently elected legislature must then accept it by 50.1% or greater
(4) Then 50.1% or more of the voters must accept it.

It looks like the Iowa amendment process from last week.

UPDATE at 2:00 ET: And DC, too.

Iowa Supreme Court Unanimously Rules in Favor of Same-Sex Marriage

According to the Des Moines Register, Iowa's Supreme Court has unanimously ruled that Iowa's equal protection clause requires the state to recognize same-sex marriages. The Iowa Court, in a sixty-nine page opinion, started by recognizing the role of the court in reviewing same-sex marriage cases; a topic we've had ample occasion to discuss around these parts.

As they noted at the outset: "[w]e approach the resolution of this case with a keen and respectful understanding of our Iowa Constitution and the vital roles of the three branches of government, as well as the role of the people." Varnum v. Brian, No. 07-1499, slip op. at 12 (Iowa Apr. 3, 2009). After noting that the constitutional question of whether a prohibition on same-sex marriage violates Iowa's equal protection clause provided a justification for adjudicating the case, the Court proceeded to address the merits of the equal protection argument.

The Court explained that, under Iowa law, the equal protection standard of review for this case hinged on four factors: (1) the history of discrimination against gay and lesbian people, id. at 37, (2) sexual orientation and the ability to contribute to society, id. at 39, (3) immutability of sexual orientation, id. at 41 and (4) the political powerlessness of lesbian and gay people. Id. at 45. Based on the factors, the Court held that Iowa gay marriage bans should be analyzed "under a heightened level of scrutiny under the Iowa Constitution." Id. at 49.

Proceeding under the auspice of intermediate scrutiny, the Court turned to strike down Iowa's marriage statute holding the statutory classification preventing gay marriage was not "substantially related to an important governmental objective." Id. at 50. In particular, the Court rejected the "governmental objectives" proferred by the government including " support for the 'traditional' institution of marriage, the optimal procreation and rearing of children, and financial considerations." Id.

I find the decision interesting for a number of reasons. First, I'm surprised the Court bothered to devote as much ink as it did to the "role of the Court" issue. As far as I can tell, there's really no separation of powers issue in this case, nor could there be. I think the focus on it shows how concerned courts are with the public reaction to these cases. Second, I think it's noteworthy that the Court declined to apply strict scrutiny, and opted to strike the marriage statute at issue down under intermediate scrutiny. Doing so, as I see it, sends a more powerful statement (much like the unanimous decision) which is important in the face of such adament opposition. It's unsurprising that other Courts have used similar tactics in the past. In Romer v. Evans, 517 U.S. 620 (1996), for example, the Court struck down a discriminatory state amendment reflecting an animus to homosexuals under the low-level rational basis test. See id. at 632 (holding that the amendment "lacks a rational relationship to legitimate state interests.").

So what's next for gay marriage? If the past is any indication, there will probably be more restrictive statutes, and public opposition. But this is a welcome victory for the movement that will be persuasive precedent in other state courts.

------

UPDATE (1:05 PM): A lot has been said since the Iowa Court handed down its ruling, and there's been some interesting commentary here and elsewhere. We wanted to take the opportunity to point our readers to some other ongoing discussions:

Above the Law- Iowa Supreme Court Strikes Down Gay Marriage Ban

LawDork 2.0- Iowa Law: What's Next?

Volokh Conspiracy- Iowa Supreme Court Same-Sex Marriage Decision

We'll continue to post any other articles we think you'd find interesting.

------

UPDATE (2:55 PM): Building upon earlier predictions that Iowa will seek to "overturn" its Supreme Court's decision via constitutional amendment, I'm posting this article from Volokh Conspiracy which confirms that the process for amending Iowa's constitution would take a while to implement.

Iowa Supremes To Rule On Gay Marriage?

Today's installment of FAD is brought to you by the Iowa Supreme Court. Based out of Des Moines (Motto: "We're Des Bestes!"), the Iowa Supremes are preparing to rule on the constitutionality of one couple's gay marriage.

The fact pattern is pretty interesting:

Lambda Legal sued challenging the state's ban on gay marriage on behalf of 6 couples. The trial court struck down the statute prohibiting gay marriage. One of the couples from the Lambda Legal group applied for their marriage license and received it on that same day. The trial court then reversed itself and stayed its decision on the following day.

The issue (per the AP wire article): The high court would determine whether the district court erred by finding that the same-sex marriage ban violated the state constitution, and whether it erred by not allowing the county's expert witness testimony.

[Ed. Note 1: I tried to get on to the Iowa Supremes' site and it just doesn't connect. I wonder why the servers are acting a little queer... **crickets chirping** I'll be here all week!

Ed. Note 2: But, seriously, the Iowa Supremes' site is down; it might be best to wait until the AP/Reuters breaks the story for the nail-biting conclusion]

Proposition 8 Round-Up

Today's discussion of the California Court's oral argument regarding the legality of Proposition 8 provoked a lot of interesting and--unsurprisingly--disparate views.

In response to some reader's requests, we are linking you in to the Law Dork's round up of what transpired today. Although it is only a rough version of the transcript, it's the best we've come across so far. We will continue looking for a complete transcript to post for your convenience.

In the interim, here are the links we have so far:

1) The (rough) transcript of the petitioner's oral argument.

2) The (rough) transcript of the intervenor's oral argument.

We also think the Law Dork's commentary sheds some valuable insight into what transpired, and recommend glancing at it if you're interested in getting a better sense of the issues implicated.

UPDATE (8:35 PM): Here's a link that has all the briefing and documents for today's argument. The transcript is not currently posted, but we expect it will be soon. There's also a neat e-mail sign-up feature that alerts you to any action on the docket.

Proposition 8's Legality to be Tested

As the New York Times reports, the California Supreme Court will hear arguments today concerning Proposition 8's legality. Passed during the November 4, 2008 general election, Proposition 8 eliminated--perhaps via constitutional amendment (more on this below)--the right to same-sex marriage that the California Supreme Court, in In re Marriage Cases, 183 P.3d 384 (Cal. 2008), had previously held state constitutional law to require.

The question the Court will consider is whether Proposition 8 amended the state constitution or revised it. If Proposition 8 revised, rather than amended, California's constitution, there are more stringent requirements for implementation. Indeed, as the New York Times notes:

Under California law, an amendment is a matter that the state’s longstanding initiative process deals with routinely. A revision, however, entails a fundamental change to the Constitution, and requires approval of either two-thirds of each house in the Legislature or a constitutional convention. That could be much harder to achieve than passage in a referendum.

Although the legal question presented of whether Proposition 8 was an amendment or revision is mundane, the case brings to the fore a number of interesting considerations. I personally find the implicit "role of the Court" question most fascinating given that Proposition 8 proponents have repeatedly pointed to the "will of the people" in defending the measure--a view which suggests the Court would somehow be encroaching on the democratic process by invaliding the provision. If anything, however, these views are an argument for judicial oversight and review; who, after all, is better equipped to vindicate rights (constitutional or otherwise) than the Courts? In a different, albeit related, context the Supreme Court recognized as much when it struck down a voter-enacted amendment to Colorado's constitution in Romer v. Evans, 517 U.S. 620 (1996).