Jeffrey Toobin brings Ninth Circuit decision on Proposition 8 down to earth

Jeffrey Toobin, staff writer for The New Yorker on legal affairs, wrote a recent piece celebrating the civil rights progress made by the Ninth Circuit in its ruling striking down California's Proposition (the controversial ballot measure banning same-sex marriage), but he simultaneously clarified the decision by arguing that the specific nature of Judge Richard Steinhardt's decision made it far less sweeping (and therefore less monumental in its impact on the gay rights movement) than many had been led to believe.

Toobin suggests that the Ninth Circuit's decision was carefully "tethered" to the "unique facts" of Proposition 8 and this particular challenge to its constitutionality. He writes that Judge Reinhardt "did not rule, as he was surely tempted to do, that there is a constitutional right to same-sex marriage, enforceable in every state in the union." Rather, he tailored his ruling to an issue specific to Proposition 8, which is that the people of California voted to strip a group of citizens of their rights, as guaranteed by the state constitution. It was primarily that fact, and not the fact that same-sex couples be allowed or not allowed to marry that drove the Ninth Circuit's decision.

Toobin says that Judge Reinhardt "crafted a narrow ruling, one that is unlikely to draw the attention of the Supreme Court of the United States." The conservatives on the high court may agree with him, but they don't necessarily form a majority of the justices. How this issue is resolved remains to be seen.

Appeals Court upholds (correctly) the unconstitutionality of Proposition 8

In a landmark decision today, the United States Court of Appeals for the Ninth Circuit upheld a 2010 decision made by the Federal District Court of the Northern District of California which determined that Proposition 8 (a 2008 ballot measure approved by California voters which amended the state constitution to ban same-sex marriage - something which was previously allowed) was unconstitutional. The 2-1 ruling was made by a panel of judges from the circuit court, and it remains to be seen whether the proponents of Proposition 8 will request to be heard by the full court or appeal directly to the Supreme Court. If they decide the latter, there is little doubt that the highest court in the land will take the case and finally rule on an issue that has divided our politics and our society for decades.

The nullification of Proposition 8 by both the district and, now, circuit courts is based on the determination that the decision by California voters to deny same-sex couples the same classification with respect to "marriage" as heterosexual partners violated the Fourteenth Amendment to the U.S. Constitution. The ruling reads:

"All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of 'marriage,' which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution [particularly the Fourteenth Amendment] simply does not allow for 'laws of this sort'...the People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry."

Interestingly, the court's ruling in this case only applies to the specific circumstances surrounding Proposition 8 and California. The court was careful to point out that its ruling has no bearing on other states and on the broader question of the ultimate constitutionality of same-sex marriage in general (or any limitations thereof). This adds to the virtual certainty that the Supreme Court will hear the case so as to settle the question once and for all.

I am of the opinion  that Proposition 8 and, indeed, any attempt to outlaw same-sex marriage is a blatant violation of the Fourteenth Amendment and its mandate that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...nor deny to any person within its jurisdiction the equal protection of the laws." This "Equal Protection Clause" has been called an embodiment of the Declaration of Independence's proclamation that "all men are created equal," and has served as one of the Constitution's most essential provisions since its addition to the document in 1868. As with most written law, however, its meaning and purview have been subject to continuous interpretation. Immediately following its passage, the Equal Protection Clause aided in the removal of various segregationist laws which banned African Americans from participating in basic civic functions. Many forms of segregation, however, remained intact, under the doctrine of "separate but equal" until it was thrown out by the Supreme Court in the mid 20th century.

The legal battle over same-sex marriage, in my view, is a modern day version of the civil rights struggles which ensued following the passage of the Fourteenth Amendment after the Civil War and beyond. In essence, we have created a "separate but equal" doctrine for marriage with the institution of civil unions, domestic partnerships, and other so-called "marriage equivalents" for same-sex couples.

In the 1954 Supreme Court decision in Brown v. Board of Education which ended school segregation and determined that "separate but equal" was illogical and unconstitutional, the court stated that "separate educational facilities are inherently unequal," which highlighted the essence of why that doctrine was so flawed. Separation implies inequality when it comes to elements as essential to our society as education, facilities usage - and marriage. Why separate when there is no practical reason for doing so unless one group is viewed as lesser than the other? The Supreme Court in Brown wrote that "the policy of separating the races is usually interpreted as denoting the inferiority of the negro group." I would argue that giving marriage licenses to heterosexual couples while granting civil unions to homosexual couples (or denying any legal recognition of their partnership at all) denotes a similar inferiority of the "homosexual group," (to use the same terms). Furthermore, the Ninth Circuit seems to agree when it writes that "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."

Today's decision marks a milestone in the ongoing legal battle for equal rights in this country, not only for same-sex couples wishing to marry, but for all people denied "equal protection of the laws" in one form or another. The constitutional questions involved in this case are as large as the controversy surrounding the issue it seeks to address. Let's hope that when the issue of same-sex marriage eventually reaches the Supreme Court that the justices, like in Brown, once again position themselves on the correct side of history.

To read the full opinion on Proposition 8 by the United States Court of Appeals for the Ninth Circuit click here.

When public health and the First Amendment clash on college campuses

A controversy that has plagued the campuses of Catholic colleges and universities for decades has reached a new level recently as the Obama administration is putting pressure on these institutions to cover the costs of birth control in their student health plans in accord with federal regulations. For years, Catholic institutions of higher education have stood against state and federal laws regarding the provision of contraceptives and related services to students due to deeply-held religious beliefs which consider it "morally wrong to prevent conception by any artificial means, including condoms, IUDs, birth control pills and sterilization." Administrators at the likes of Fordham and Georgetown claim that their universities have the right to First Amendment religious freedom protections and that they should not have to violate spiritually-motivated moral guidelines because of government-mandated health care regulations. The Obama administration, on the other hand, is relying "on the recommendations of the Institute of Medicine, an independent group of doctors and researchers that [has] concluded that birth control is not just a convenience but is medically necessary "'to ensure women’s health and well-being.'" The result is a high-profile clash between public health concerns and the First Amendment with no clear outcome.

A recent Supreme Court decision, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, (written about here in The New York Times) granted an exception to religious institutions with respect to fair hiring and employment discrimination laws, arguing that "churches and other religious groups must be free to choose and dismiss their leaders without government interference." If the First Amendment extends into the realm of who can be hired and who can be fired by a religious organization, one has to ask why it can't also, therefore, give Catholic colleges and universities (private institutions) the right to decide what kinds of medical care to provide their students.

For the record, I see a difference between the waiver of select anti-discrimination regulations to allow churches to choose who their ministers are and allowing religious dogma to trump documented and proven public health concerns, but neither the Supreme Court (nor, in an objective reading, the Constitution, for that matter) may agree. This is a classic case of how far we are willing to extend the broad protections of the First Amendment - protections, with respect to speech, which have already been granted (for better or for worse) to epithet-spewing protesters at the funerals of veterans and to corporations wishing to play a role in the political process. The question, in this case, is: how many rules that we expect the rest of society to follow do we want to bend - or break - in the name of religious freedom? I don't know the answer, and it's hard to tell how this issue will be resolved. For now, however, the battle continues to rage - on college campuses and elsewhere.