Predicting the Continued Validity of Last Summer's Marriages

In keeping with my principle that I blog about any question I'm asked 3 times in one week (see my entry of 2/27/09), it's time to blog about the future validity of the marriages entered into by same-sex couples between June and November, 2008. Lots of folks are asking me what I think the California Supreme Court will do in the case challenging the constitutionality of Prop 8. I have never been one to publicly predict how any court will rule, but after watching the oral arguments, I feel confident predicting this much: however the court rules on the constitutionality of Prop 8, I believe they will find the marriages entered into by same-sex couples June 16 and November 5 valid, and will order the state to continue recognizing them as such. The justices of our Supreme Court do not always show their hands in oral argument. Often, one leaves the courtroom having no idea what they are thinking. But my experience is that when they do show their hands -- that is, when they ask questions of the attorneys that clearly indicate which way they are leaning on an issue -- they are not sneaky or deceptive about it. In other words, while it is never safe to guess what the justices are thinking unless they make their thoughts clear themselves through their questioning, if they do make their thoughts clear through their questioning it generally is safe to rely on what was heard in the courtroom to determine which way they intend to vote. During the Prop 8 arguments, almost every justice spoke up to question the attorneys arguing for the retroactive application of Prop 8 -- and resulting invalidation of the approximately 18,000 marriages entered into by same-sex couples last summer -- how those attorneys could argue that the court should invalidate marriages entered into in good faith by couples relying on the court's own ruling in In re Marriage Cases. Even the most conservative justices seemed downright offended that certain lawyers (for example Ken Starr) were suggesting that they could invalidate marriages in good conscience that were only possible because folks relied on their (the justices') prior decision. In light of the clear sentiment with which these questions were asked, I feel quite safe in guessing that the justices are not planning on invalidating anyone's marriage that was entered into in reliance on In re Marriage Cases. Of course, that's just a guess -- but it's an educated guess, based on years of court-watching.

Relying on the Integrity of the Court

I wrote an Op-Ed for The Daily Journal (California's largest legal newspaper, published in both San Francisco and Los Angeles) about the oral arguments on the constitutionality of Prop 8 in the California Supreme Court, which appeared in the paper on March 17. Since The Daily Journal isn't available on-line, I thought I'd reprint the piece here: The most painful part of the oral arguments on the constitutionality of Proposition 8, heard by our Supreme Court on March 5, 2009, came during the back-and-forth between the justices and Shannon Minter, Legal Director of the National Center for Lesbian Rights, during Minter’s rebuttal argument. Our Chief Justice, Ronald George, asked Minter to explain why it wasn’t fair to characterize Prop 8 as “eliminating the designation of marriage, eliminating the nomenclature, but not disturbing the Court’s recognition [in its May 2008 decision in In re Marriage Cases] of very important rights” accorded same-sex couples through domestic partnership. While Minter gave an eloquent response to the Chief Justice’s question, the best answer I have ever seen to that particular question should be very familiar to Chief Justice George. It was written by the Chief Justice himself in In re Marriage Cases. In In re Marriage Cases, Chief Justice George – writing for the majority – wrote that “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.” He went on to explain: “Whether or not the name ‘marriage,’ in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships. The current statutes – by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership – pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry.” Chief Justice George, and the majority of Justices, concluded “that in the present context, affording same-sex couples access only to the separate institution of domestic partnership, and denying such couples access to the established institution of marriage, properly must be viewed as impinging upon the right of those couples to have their family relationship accorded respect and dignity equal to that accorded the family relationship of opposite-sex couples.” The Court based this conclusion on three findings: (1) that “the long and celebrated history of the term ‘marriage’ and the widespread understanding that this term describes a union unreservedly approved and favored by the community” makes it “apparent that affording access to this designation exclusively to opposite-sex couples ... realistically must be viewed as constituting significantly unequal treatment to same-sex couples”; (2) that, “particularly in light of the historic disparagement of and discrimination against gay persons, there is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships ... inevitably will cause [domestic partnerships] ... to be viewed as of a lesser stature than marriage and, in effect, as a mark of second-class citizenship”; and (3) that unfamiliarity with domestic partnership “is likely ... to pose significant difficulties and complications for same-sex couples, and perhaps most poignantly for their children, that would not be presented if, like opposite-sex couples, same-sex couples were permitted access to the established and well-understood family relationship of marriage.” Honestly, that seems to say it all. I have followed the California Supreme Court’s family law decisions for many years. I sat in the court during the oral arguments in the Nicholas H. case, when the court made clear its commitment to placing children’s needs at the center of its family law jurisprudence. I sat in the court during the oral arguments in first the Sharon S. case and later the Elisa B. case, when the court made clear its commitment to extending traditional family law protections to the children of same-sex couples. I read their In re Marriage Cases decision with awe, admiring both their insightfulness and their eloquence in explaining why respect for same-sex families required that these families be allowed to join in the institution of marriage. While I have not always agreed with our Supreme Court, I have come to admire them deeply for their integrity. Yet right now, I am afraid that they are getting ready to significantly compromise that integrity by acting like they didn’t say what they clearly said less than a year ago: that fundamental equality for same-sex couples – protected by our state Equal Protection Clause – requires that committed same-sex partners be allowed the opportunity to marry. I sincerely hope that my fears are unfounded. Reprinted with teh permission of Daily Journal Corp. (2009)

Sharing the Joy of a Glorious Morning

This morning started early, when my alarm radio burst into song at 5:30 a.m.. Time to get up, make a meager effort at breakfast, and get my 15-year-old to his crew practice. In case you don't know this about me (and why would you?), I'm not exactly a morning person. But coming over the hill on our way to pick up a crew mate, we had a sweeping view of the sun rising over the San Francisco Bay, and I thought "this is why we live in San Francisco." Fast forward two hours. After dropping my 13-year-old son at his baseball practice, I decided to walk the puppies (now 6 months old) in Glen Canyon Park. We hiked through the canyon itself, and then up through the rock formations and onto the grassy hillside. The puppies raced through the tall grass, leaping in and out of rivulets, while I admired the wildflowers. The sun shone bright, and the rain-washed landscape was as crystal clear as I can ever remember -- nature in "high def." It has been a rough week in many ways. The Dow fell to below 6500 for the first time in over 10 years. California's unemployment rate is over 10 percent for the first time in even longer. And the oral arguments on the constitutionality of Prop 8 in the California Supreme Court on Thursday were far rougher than many of us had expected. In the face of all that is daunting in our world right now, here is my advice: step out into the sunshine. We in San Francisco live in an amazingly beautiful part of the world. If you are lucky enough to be in the Bay Area, go to the beach (as my pups and I will be doing a bit later this afternoon, when the tide is lower); go to one of our beautiful city parks -- Golden Gate Park, Bernal Hill, Mt. Sutro Woods, or Glen Canyon Park itself, to name a few that I love in San Francisco; go enjoy a walk through one of our charming neighborhoods. If you live somewhere else -- well, find a beautiful spot to enjoy wherever you are. There are some, I promise. Breathe the air. Take in the view. Say hello to some friendly strangers. It's been a rough week, yes. But there's a beautiful world out there, and there are many more days ahead to deal with the economy and inequality and all the other challenges we face. Today, let's all take a moment to stop and enjoy our surroundings.

Honoring Our Fathers

This morning, I read a beautiful piece written by my friend and colleague Richard Hearn, the Founder and President of Starcare Associates in Newport Beach, California. Richard is a financial professional, with over 30 years in the finance industry. He is facing this amazing moment we're in -- which many are calling an unprecedented financial crisis -- with the poise and articulateness for which I have come to count on him. In this morning's piece (which is too new to even be up on the Starcare website yet), he talks about the lessons he learned from his father. Richard's father was a car salesman, who apparently was there to help his customers with problems with their cars, night or day, even years after he had sold the car, any time they called him. Richard describes the ultimate lesson he learned from his father as: "Just be there, without exception, when [your clients] need you." The story Richard tells about his father strikes a chord with me for two reasons: (1) because I have embraced a similar ethic in my own law practice to the one his father embraced in his car dealership and that Richard himself is embracing in his financial services firm; and (2) because, when I find myself in uncharted waters, I also have often been known to look to lessons I learned from my own father for guidance and support. Ironically, and completely coincidentally, I also got a short note from someone -- sent to info@waldlaw.net -- saying: "Was George your father? I was one of his many students and admirers." Yes, George Wald was my father. He was a Jewish boy from Brooklyn -- the son of a tailor -- who worked his way through college, went on to study science at Columbia in the years of Albert Einstein, became a professor at Harvard University, and eventually won the Nobel Prize in Science & Medicine for his work on vision. He made his career studying vision; but more than that he was a visionary who chose to use the bully pulpit he got from his status as a Harvard Professor and Nobel Laureate to work full time for peace and human rights around the globe for the last 30 years of his life. I consider myself lucky to have had a father whose wisdom and humor can provide me with strength and guidance in times such as these. Apparently, my friend Richard is lucky in the same way. To have both his piece about his father and the surprise note about my father arrive in my email inbox this morning, by complete happenstance, suggests a message from the stratosphere: I guess it's time to think about our fathers....

Taking On the Federal Defense of Marriage Act

It's almost spring and change is in the air.... Yesterday, Gay & Lesbian Advocates & Defenders (GLAD) in Boston filed a lawsuit in federal district court, challenging the federal Defense of Marriage Act. The suit is being brought on behalf of eight same-sex couples and three widowers, all of whom were married in Massachusetts after same-sex marriage became legal there in 2004. All have applied for federal benefits, but been denied them under the federal Defense of Marriage Act (DOMA). The federal DOMA has two separate provisions: one that denies federal recognition to same-sex marriages; and another which provides that states don't have to recognize same-sex marriages entered into in other states. The lawsuit filed by GLAD only addresses the federal recognition issue; and it focuses specifically on marital benefits related to Social Security, federal income tax, federal employees and retirees, and the issuance of passports -- the issues that most effect same-sex couples, and which are most understandable to the general public. GLAD has considerable information about the case on their website, including a full description of the people involved and the actual damage done to them by federal non-recognition of their marriages. This appears to be the right lawsuit, filed at the right time, by the right organization (already responsible for the marriage victories in Massachusetts and Connecticut). May the force be with them!

As I Was Saying....

On Friday, I blogged about the "octo-mom" and my concern that the problems with her situation were going to lead to bad law. Well, see today's Wall Street Journal. According to today's Journal article, entitled "In-Vitro Fertilization Limit Is Sought," legislators in both Georgia and Missouri have already submitted bills to their Legislatures to limit the number of embryos that can be implanted in any one in vitro cycle. The bill proposed in Georgia would also limit the number of embryos created in any cycle to the number to actually be implanted in that cycle, thereby preventing the freezing of embryos for later use. Lawmakers sponsoring these bills admit that they are largely being guided by the anti-abortion lobby, which believes that life begins at conception and therefore is deeply concerned with destruction of unused embryos. The American Society for Reproductive Medicine, which already has guidelines in place limiting the number of embryos to be implanted during any cycle based on a woman's age and her infertility diagnosis, opposes legislating these issues, believing that these decisions should be left to the woman involved and her physician. They have issued a statement, in response to the "octo-mom" case, setting out their position. These are very complex issues. Clearly, the "octo-mom" case is a train wreck. Clearly, a lot of questions are raised by a physician implanting 6 embryos in a very fertile woman, and if medical ethics guidelines and/or standards of practice were violated, they will need to be addressed by the California Medical Association or whatever agency addresses these types of issues for doctors (for lawyers, it would be the State Bar). Clearly, there are lessons here for us all. And, at some point, states may need to intervene to set outer limits if the medical profession is unable to hold their own accountable. But for the most part, I do not believe that our legislatures should be telling women how to address their personal reproductive concerns -- we've been down that road already, in the case of abortion, and have seen where it takes us.