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News & ArtsTuesday, February 7, 2012
Gay Marriage UW Law Professor: Washington Gay Marriage Referendum, Just Like Prop 8, Would Be Found Unconstitutional
Posted by Eli Sanders on Tue, Feb 7, 2012 at 2:45 PM
Presented with this question, Stewart Jay, an expert on constitutional law at the University of Washington, tells me:
I haven’t read the opinion yet, but I think the holding probably would be the same if the Washington [gay marriage] law was repealed.
In other words: Like Prop 8, the effort to repeal gay marriage rights at the ballot box in Washington State would be struck down by the Ninth Circuit.
However, Jay notes that as you get into the details, it gets more and more complicated:
There is a critical difference between the two states. The California case was based on an initiative overturning a ruling of the state supreme court that required same-sex marriages under the state constitution. In Washington, the legislature is making the decision. In a referendum, the people act as a legislative body...
Ultimately, the outcome probably will be the same, but the Washington case will be harder for proponents of gay marriage to win. It’s actually a very complicated question.
1
I'm glad to hear they'd be less likely to win. No less likely to be able to delay, though, sounds like.
2
Uh oh, so this means Obama, that other constitutional expert who doesn't think arresting and torturing American citizens without a trial is unconstitutional, will come out against gay marriage. And gay Democrats across the country will ignore this and vote for him anyway.
Queers, don't you get tired of waiting for someone else do decide when you can have rights? Don't you get tired of both parties using your rights for their own political gains?
Queers, don't you get tired of waiting for someone else do decide when you can have rights? Don't you get tired of both parties using your rights for their own political gains?
3
Can you have a referendum overturning Brown vs. Board of Ed?
I don't see why this (in WA) went to the legislature instead of the courts as it did in CA.
4
@2: I suppose when Lincoln and Congress freed the slaves, the freedmen should have gotten offended that someone else was giving them rights to which they had been entitled all along. When someone stands up for you, don't be a proud fool and insist on doing everything by yourself.
5
I'm not sure I agree, at least not based on the language in the ruling. The court ruled that taking away a right like marriage for a subset of people without a rational basis to do so was unconstitutional but was clear that the taking away part was important and declined to hold that it needed to be offered in the first place. Though they did not say they would not hold that if presented with the question.
In Washington the referendum puts the law on hold so at no point before the vote, or after it if it succeeds, will gay marriage be legal. Without it having been legal it cannot be take away.
I'd venture the ninth circuit would hold that banning gay marriage is unconstitutional, but this decision, in itself, would not make a referendum on Washington's law unconstitutional.
In Washington the referendum puts the law on hold so at no point before the vote, or after it if it succeeds, will gay marriage be legal. Without it having been legal it cannot be take away.
I'd venture the ninth circuit would hold that banning gay marriage is unconstitutional, but this decision, in itself, would not make a referendum on Washington's law unconstitutional.
6
Actually, the opinion [which I've read a sizable portion of (unlike Mr. Jay apparently)], states that there is a big difference between CA and other states -- the state of CA actually issued marriage licenses before Prop 8 was voted on. Because of that, Prop 8 is seen as taking away rights from gays and lesbians.
In WA, the rights of gays and lesbians to marry has not been granted yet, and will not, if the opponents of marriage equality get the required signatures sending a referendum to the voters.
I wish it weren't so, but I doubt that the ruling can be used to keep the referendum off the ballot or to overturn it if it does pass.
Today's ruling is an important step to full marriage equality but it is not the last battle, not in a long shot.
In WA, the rights of gays and lesbians to marry has not been granted yet, and will not, if the opponents of marriage equality get the required signatures sending a referendum to the voters.
I wish it weren't so, but I doubt that the ruling can be used to keep the referendum off the ballot or to overturn it if it does pass.
Today's ruling is an important step to full marriage equality but it is not the last battle, not in a long shot.
7
@3 (Supreme Ruler of the Universe): Hmmm.
First point: Brown v. Board of Education was a SCOTUS, not a state supreme court decision, and the federal system does not provide for referendums, whereas California and Washington do. So no, you could not overturn Brown with a referendum.
Second point: Because California justices are initially appointed, not elected, and they serve twelve-year terms, at which point they face a retention vote, whereas Washington justices face competitive elections every six years. In poli-sci terms, California justices are at least twice as politically independent as Washington justices. In layman's terms, Washington justices are at least twice as big pussies, er, I mean twice as responsive to the electorate's current whims, as California justices.
First point: Brown v. Board of Education was a SCOTUS, not a state supreme court decision, and the federal system does not provide for referendums, whereas California and Washington do. So no, you could not overturn Brown with a referendum.
Second point: Because California justices are initially appointed, not elected, and they serve twelve-year terms, at which point they face a retention vote, whereas Washington justices face competitive elections every six years. In poli-sci terms, California justices are at least twice as politically independent as Washington justices. In layman's terms, Washington justices are at least twice as big pussies, er, I mean twice as responsive to the electorate's current whims, as California justices.
8
@7: Additional info: In CA, the legislature did pass a bill allowing same-sex marriage, but Gov Ahnuld vetoed it. The CA Supreme Court later ruled that prohibiting same-sex marriage was unconstitutional.
Info, please: Assuming that the WA legislature passes same-sex marriage and Gov Gregoire signs it into law, when does it go into effect?
Info, please: Assuming that the WA legislature passes same-sex marriage and Gov Gregoire signs it into law, when does it go into effect?
9
Yes it's as I said in another similar post. It's a Catch22 thing here in WA. The law will say marriage equality for Gay folk, but a Referendum will undo that law. The 9thCC will say there were no marriages performed and hence no discrimination has taken place. It's a no win situation.
10
Stewart Jay, superb legal mind that he has, says "I HAVEN'T READ THE OPINION YET, but I think the holding probably would be the same if the Washington [gay marriage] law was repealed." Golly jeepers! He's so smart that he can make an astute legal analysis of opinions he hasn't even read yet!
Proof positive of the old maxim that 'those who can, do. Those who can't, teach. I'd say I'm shocked that a liberal university employs a tenured leftist moron, but it's kind of the basis on which every HR department at liberal colleges work.
Proof positive of the old maxim that 'those who can, do. Those who can't, teach. I'd say I'm shocked that a liberal university employs a tenured leftist moron, but it's kind of the basis on which every HR department at liberal colleges work.
11
@8
Yes, the Legislature passed a gay marriage law, but it was after prop 22 made same-sex marriage illegal. The California Constitution pretty clearly states that the legislature cannot overrule an initiative - that it would have required a second initiative to overturn it.
Much as it sucked, Schwarzenegger was right to veto it. That aspect of their Constitution is pretty stupid, but it's still there. He made it clear that he was vetoing it on procedural grounds, not because he disapproved of same-sex marriage. They should never have passed the bill illegally in the first place.
Yes, the Legislature passed a gay marriage law, but it was after prop 22 made same-sex marriage illegal. The California Constitution pretty clearly states that the legislature cannot overrule an initiative - that it would have required a second initiative to overturn it.
Much as it sucked, Schwarzenegger was right to veto it. That aspect of their Constitution is pretty stupid, but it's still there. He made it clear that he was vetoing it on procedural grounds, not because he disapproved of same-sex marriage. They should never have passed the bill illegally in the first place.
12
@5
You are right.
This ruling went out of its way to repeatedly say that since they could strike down Prop 8 for taking away rights that had already been granted, they didn't need to even address the question of whether those rights were required to be granted in the first place.
A lot of people are reading this as "it was only wrong to take away rights that have been given, it's okay to never give them in the first place," but that is explicitly not what the ruling says - it directly says otherwise.
It points out that some people said that if Prop 8 had passed before the CA Supreme Court had mandated marriage equality, the whole case would have collapsed. They explicitly said that it would not - that if marriage equality had never (yet) been mandated, then the Court would have had to address the Constitutionality of not allowing same-sex couples to marry.
The case also point by point struck down the standard "rational basis" arguments why the state has any business telling same sex couples they can't marry, and tore them apart. They framed it as explaining why they don't support taking away the right, since that's the point they were addressing, but they explained them is such a way that the explanation destroys the justification for withholding the right in the first place.
This decision does not apply to other states in the strictest sense of forcing them to change things as a result of this ruling, but the underlying findings of fact and justifications - and more importantly, the official discrediting of the B.S. that is used against us - do apply to other states and future cases.
You are right.
This ruling went out of its way to repeatedly say that since they could strike down Prop 8 for taking away rights that had already been granted, they didn't need to even address the question of whether those rights were required to be granted in the first place.
A lot of people are reading this as "it was only wrong to take away rights that have been given, it's okay to never give them in the first place," but that is explicitly not what the ruling says - it directly says otherwise.
It points out that some people said that if Prop 8 had passed before the CA Supreme Court had mandated marriage equality, the whole case would have collapsed. They explicitly said that it would not - that if marriage equality had never (yet) been mandated, then the Court would have had to address the Constitutionality of not allowing same-sex couples to marry.
The case also point by point struck down the standard "rational basis" arguments why the state has any business telling same sex couples they can't marry, and tore them apart. They framed it as explaining why they don't support taking away the right, since that's the point they were addressing, but they explained them is such a way that the explanation destroys the justification for withholding the right in the first place.
This decision does not apply to other states in the strictest sense of forcing them to change things as a result of this ruling, but the underlying findings of fact and justifications - and more importantly, the official discrediting of the B.S. that is used against us - do apply to other states and future cases.
13
Stewart Jay, an expert on constitutional law at the University of Washington, should know not to comment on a ruling he hasn't even fucking READ.
His analysis is bullshit.
The court basically ruled as narrowly as they possibly could, such that it would ONLY apply to California. They avoided EVERY single question they could possibly avoid: is marriage a right? Do gays/lesbians have that right? Can this be infringed by proposition? etc etc.
The ruling is extraordinarily clear: California, one granting the right to marry, cannot take it away for no reason.
The only strong and important part of the ruling is that the court continued with Vaughn Walker's findings that there was no legitimate reason at all that justified the law other than group animus. And once a right was extended, a class of people could not be created simply to withdraw that right for no reason.
So in essence, the ruling has absolutely no applicability to any state other than California. To have ANY relevance in WA, we would need to have legal gay marriage, and then a law passed to revoke gay marriage. Since we do not have gay marriage in WA state, if this law fails by initiative, the prop 8 ruling doesn't help us in any way.
It was kind of a bullshit ruling, really. It may have been strategically savvy, because it is SO narrowly tailored so as to avoid gay marriage basically entirely, that I think the court was trying to give SCOTUS an out and allow them not to take the case because it doesn't really deal with fundamental rights or Constitutional rights at all. So it may be that they were afraid of lobbing a fireball too quickly at SCOTUS and having them allow prop 8 to stand in the name of some sort of bullshit 'individual religious liberty free speech corporations are people money is words' excuse, thus fucking over civil rights for decades.
More...
His analysis is bullshit.
The court basically ruled as narrowly as they possibly could, such that it would ONLY apply to California. They avoided EVERY single question they could possibly avoid: is marriage a right? Do gays/lesbians have that right? Can this be infringed by proposition? etc etc.
The ruling is extraordinarily clear: California, one granting the right to marry, cannot take it away for no reason.
The only strong and important part of the ruling is that the court continued with Vaughn Walker's findings that there was no legitimate reason at all that justified the law other than group animus. And once a right was extended, a class of people could not be created simply to withdraw that right for no reason.
So in essence, the ruling has absolutely no applicability to any state other than California. To have ANY relevance in WA, we would need to have legal gay marriage, and then a law passed to revoke gay marriage. Since we do not have gay marriage in WA state, if this law fails by initiative, the prop 8 ruling doesn't help us in any way.
It was kind of a bullshit ruling, really. It may have been strategically savvy, because it is SO narrowly tailored so as to avoid gay marriage basically entirely, that I think the court was trying to give SCOTUS an out and allow them not to take the case because it doesn't really deal with fundamental rights or Constitutional rights at all. So it may be that they were afraid of lobbing a fireball too quickly at SCOTUS and having them allow prop 8 to stand in the name of some sort of bullshit 'individual religious liberty free speech corporations are people money is words' excuse, thus fucking over civil rights for decades.
14
while @13 is correct legally, it's a mistake to be so technically correct. legal rulings come down and build and accrete and the slashing at the factual arguments will impact all other legal rulings even if not precedentially, or in a legally binding way.
the interested public wants a yes no answer: oh does this ruling mean we win, or do we lose? yes or no. the answer is: no. technically, they properly ruled on the narrowest issue to decide the case, meaning this won't be on all points analogous to our situation in washington.
but in a deeper sense it's a huge fucking victory so don't be so legally stupid.
you need to look at it like a basketball game that never ends, not a sudden death one by on shootoff. this ruling is like having been behind for two quaters and now the underdog team has scored 20 points in a row and is ahead by points, at least in the ninth circuit. the other team, the haters, will be scoring point, we will be scoring points the figtht goes on the mountain of precedent all affects other cases, public opinion, politics, the minds of judges as they're human too, and in the end the supreme court decision is in reality "based on" human, logical emotional political religous rational irrational factors in addition to ostensibly being merely a technical process to reveal the preexisting "law" blah blah blah in reality this is as big as the very first deseg decision which said "nope, in a law school you meet future members of the bar, so this U Texas segregation of its law school into black and white inherently can't be separate but equal, it's unequal." note how this then took years to become brown v. board, and note how this is NOT the brown v. board ruling. it's narrower, it's factual. but it's like a huge crach in the antarctic ice shelf calving off a massive glacier that's 1/4 the entire ice sheet. the fact the case here rests on factual rulings saying the haters are fatuous, that the 9th circuit focuses on the stupid irrationality of taking something away and how does that harm anyone else, it doesn't, are all new meta concepts that frame the future debate and shift the entire terrain in a favorable way; the warriors then fight it out but it's a fucking fundamental, huge win, and you have to be overly nerdy lawyer type to not see this.
More...
the interested public wants a yes no answer: oh does this ruling mean we win, or do we lose? yes or no. the answer is: no. technically, they properly ruled on the narrowest issue to decide the case, meaning this won't be on all points analogous to our situation in washington.
but in a deeper sense it's a huge fucking victory so don't be so legally stupid.
you need to look at it like a basketball game that never ends, not a sudden death one by on shootoff. this ruling is like having been behind for two quaters and now the underdog team has scored 20 points in a row and is ahead by points, at least in the ninth circuit. the other team, the haters, will be scoring point, we will be scoring points the figtht goes on the mountain of precedent all affects other cases, public opinion, politics, the minds of judges as they're human too, and in the end the supreme court decision is in reality "based on" human, logical emotional political religous rational irrational factors in addition to ostensibly being merely a technical process to reveal the preexisting "law" blah blah blah in reality this is as big as the very first deseg decision which said "nope, in a law school you meet future members of the bar, so this U Texas segregation of its law school into black and white inherently can't be separate but equal, it's unequal." note how this then took years to become brown v. board, and note how this is NOT the brown v. board ruling. it's narrower, it's factual. but it's like a huge crach in the antarctic ice shelf calving off a massive glacier that's 1/4 the entire ice sheet. the fact the case here rests on factual rulings saying the haters are fatuous, that the 9th circuit focuses on the stupid irrationality of taking something away and how does that harm anyone else, it doesn't, are all new meta concepts that frame the future debate and shift the entire terrain in a favorable way; the warriors then fight it out but it's a fucking fundamental, huge win, and you have to be overly nerdy lawyer type to not see this.
16
This is fantastic news. And I am cautiously optimistic that Washington voters will be the first in America to approve same-sex marriage. http://lawblog.legalmatch.com/2012/02/15…
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