U.S. court overturns state marriage ban

An e-mail just received from my Law Librarian, Erin Murphy, identifies the pith of the trial court judgment against Proposition 8, the voter initiative that made a prohibition on same-sex marriage part of California's Constitution. (Prior IntLawGrrls posts available here.) With a hat tip to Erin, here's the money quote by U.S. District Judge Vaughn R. Walker, Northern District of California:

'Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed the evidence shows Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite sex couples are superior to same sex couples.'

By those words and many others contained in the 138-page ruling in Perry v. Schwarzenegger, available in pdf here, Walker ruled that the ban on same-sex marriage violates the equal protection and due process guarantees of the U.S. Constitution. (photo credit)

In a curious aside to unsuccessful efforts to have the Perry trial televised -- on which IntLawGrrl Kathleen A. Doty posted -- the court webpage includes not only links to the ruling, but also to YouTube videos of evidence to which the ruling refers.

More litigation sure to follow.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

So when can a claim of tariff-based discrimination prevail? In a social climate in which anyone can wear anything, apparel may not be the best target for a tariff discrimination case -- but one could envision hypotheticals involving gender-linked medicines or medical devices, or discrimination between products on the basis of links to religion.

-- Claire Kelly (right), Professor of Law and Associate Director, Dennis J. Bock Center for the Study of International Business Law, Brooklyn Law School, New York, in an ASIL Insight analyzing the rejection by the U.S. Court of Appeals for the Federal Circuit of a claim that the placement by the U.S. government of a 14% tax on the importation of men's gloves, compared with only 12.6% for women's, violates the equal protection guarantees of the U.S. Constitution. A petition for review of the decision, Totes-Isotoner Corp. v. United States, is pending before the U.S. Supreme Court.

Nuff said

(Taking context-optional note of thought-provoking quotes)

'Marriage is a right which extends fundamentally to all persons, whether they're capable of producing children, incarcerated or behind in their child-support payments. ...
'Why don't those same values apply to gay couples and lesbian couples loving one another?'

-- Chief Judge Vaughn R. Walker (below right), U.S. District Court for the Northern District of California, questioning counsel for proponents of Proposition 8, the initiative that amended California's Constitution to outlaw same-sex marriages. Walker's query came in the course of yesterday's closing arguments in the federal trial that commenced 6 months ago at the U.S. courthouse in San Francisco. Plaintiffs in Perry v. Schwarzenegger -- among them the couple above, Kristin Perry and Sandra Stier of Berkeley -- allege that this new provision of the state constitution violates the Equal Protection Clause of the U.S. Constitution. (credit for 2009 AP photo by Jeff Chiu) (Prior IntLawGrrls posts on events in California here, here, here, here, here, here, here, and here).The case is now submitted, and litigants await Walker's decision.

On January 12

On this day in ...

... 1948, on a Monday just 4 days after the conclusion of a 2-day oral argument, the U.S. Supreme Court issued a per curiam judgment declaring that Oklahoma must afford petitioner Ada Sipuel Fisher (right) -- whom the Court described as "a Negro, concededly qualified" --admission to the state law school where "many white applicants have been afforded legal education." The brief opinion in Sipuel v. Board of Regents added that Oklahoma "must provide it for her in conformity with the equal protection clause of the Fourteenth Amendment, and provide it as soon as it does for applicants of any other group." But Oklahoma ignored the order. The Court, in Fisher v. Hurst, a decision issued the next month, refused to issue a writ of mandamus on behalf of petitioner. As I've posted, the dissent by Justice Wiley B. Rutledge was preceded by a bench memorandum from his law clerk, John Paul Stevens. Eventually, Sipuel Fisher was permitted to attend the law school, albeit under harsh conditions; she graduated in 1952 and returned to her hometown to practice law. In 1992 she was appointed to the Board of Regents of the university that once had excluded her. She died in 1995. (credit for oil portrait of Sipuel Fisher, by Mitsuno Ishii Reedy, which is on display in the rotunda at the Oklahoma State Capitol)

... 1992, in a national referendum, the people of Mali approved a new Constitution. According to the Library of Congress, the 1992 Constitution, "[l]ike its two predecessors, ... is based on the French model." (The West African country, flag at left, won independence from France in 1960.) The 1992 Constitution has been amended once, in 1999, "to incorporate some revisions of the electoral system and strengthen the judicial system"; those changes were not submitted to popular vote.

California marriage equality back in Court

'I think people are beginning to look at it differently, I know it’s happened for me. I started out not supporting it. The longer I’ve lived, the more I’ve seen the happiness of people, the stability that these commitments bring to a life. Many adopted children who would have ended up in foster care now have good solid homes and are brought up learning the difference between right and wrong. It’s a very positive thing.'

-- U.S. Sen. Dianne Feinstein (D-Cal.), quoted yesterday in Maureen Dowd's column. Feinstein (above right) was among the precious few high-ranking politicians who cut a television ad against Proposition 8, the ballot initiative that aimed to limit marriage in California to opposite-sex couples. (Prior posts here and here.)
Prop 8 passed by a margin of 52.1% to 47.9%. But it remains to be seen whether it will take effect. The California Supreme Court (below) has agreed by this order to hear petitions contending that the simple-majority-rules initiative process cannot be used to take a fundamental right like marriage away from a group that the Court has declared a suspect class -- as the Court did for same-sex couples in In re Marriage Cases (May 2008) (prior post). Invoking the Equal Protection Clause, petitioners argue that the only way to effect such a deprivation is by the state's more cumbersome, super-majority-needed "revision" process.
Throughout the course of this new round of litigation, filings by litigants and the many amici curiae may be found here.

California Supreme Court makes human rights history

Yesterday, California joined the ranks of six other jurisdictions around the globe that permit same-sex couples to marry, including: Belgium, Canada, Massachusetts (USA), the Netherlands, South Africa, and Spain.
In so doing, the California Supreme Court took a leap in equal protection jurisprudence that few courts in the United States have been willing to make – that laws making distinctions based on sexual orientation deserve review under the strict scrutiny standard (generally reserved for "suspect classes" like race, sex, or religion). The California Supreme Court considered that gays and lesbians already had access to statutorily created domestic partnerships, which provided many of the same rights and obligations as marriage, but nonetheless decided (p. 9) that

the current California statutes . . . must be viewed as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution.

This fundamental right to marriage, the Court wrote (p. 7), is protected by the California Constitution, which

must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.

The ruling was met with great enthusiasm. Political leaders, activists, and ordinary citizens gathered at San Francisco City Hall to celebrate the news. Gay and lesbian organizations throughout the state celebrated. The gatherings were marked by laughter and tears of joy. In thirty days, the Court-required waiting period, many of the revelers will be joined in the first truly legal, state-sanctioned marriages between people of the same sex in California.
But gay rights opponents have been anticipating this decision, and the Secretary of State is currently reviewing signatures to determine whether a ballot measure to change the California Constitution to limit marriage to unions between one man and one woman will be voted upon in November. But in the meantime, gay couples are not deterred, and are already planning their weddings. This is one step in the global movement of gay rights as human rights. And marriage is just the tip of the iceberg. While marriage bills are also currently being debated in Norway and Sweden, the past year has brought big changes, including the European Court of Human Rights’ decision in E.B. v. France that Council of Europe States may not discriminate against gays and lesbians in adoption proceedings. But the struggle for gay rights is far from over, as in many countries around the world, gays and lesbians “face violence and inequality – and sometimes torture, even execution” because of their sexual orientation.
But each victory counts, and there can be no denying it, yesterday the California Supreme Court made human rights history!

(All photos © Kathleen Doty)

In passing: Mildred Loving

(In passing: marks the memory of a person profiled by IntLawGrrls)

Mildred Loving, 68, died from pneumonia last week at her home in Central Point, Virginia.

As we posted here, the woman born Mildred Jeter and the next-door neighbor she'd married in Washington, D.C., in 1958, Richard Loving, were convicted of violating a Virginia statute that made interracial marriage a crime. The couple (left) contested their convictions all the way to the U.S. Supreme Court, which held unanimously in Loving v. Virginia (1967) that the statute violated the Equal Protection Clause of the 14th Amendment to the Constitution. ABC's coverage last year of the 40th anniversary of the decision included this superb, circa-1967 ABC video on the case (link's at bottom of page, below "More Coverage" subtitle) including interviews with Mildred and Richard Loving. Still more here and here.

On August 18, ...

... 1997 (10 years ago today), Beth Ann Hogan became the 1st woman to enroll at the Virginia Military Institute, a 158-year-old institution of higher learning. Her enrollment followed nearly a decade of legal wrangling: resolving a sex discrimination lawsuit filed by the U.S. Department of Justice, the Supreme Court required the publicly funded academy to admit women. In her opinion for the Court, Justice Ruth Bader Ginsburg wrote that the Equal Protection Clause requires that gender-based classifications be supported by an "exceedingly persuasive" justification. As for the 17-year-old from Junction City, Oregon, Hogan left after her 1st semester of study; nonetheless, as indicated by the photo at right, VMI's website now prominently features its female cadets.
... 1977 (30 years ago today), authorities of South Africa's apartheid government arrested Steve Biko, leader of the Black Consciousness movement, and detained him pursuant to the country's Terrorism Act. Weeks later Biko died while in custody. A book chronicled the abuses that Biko suffered during interrogation, but the 1st official report to find government agents responsible was that of the post-apartheid Truth and Reconciliation Commission.

On June 12, ...

... 1967 (40 years ago today), in Loving v. Virginia, the U.S. Supreme Court overturned the criminal conviction of Mildred Jeter and Richard Loving (left), and in so doing held that a statute forbidding interracial marriage violated the Equal Protection Clause of the 14th Amendment to the Constitution. An examination of "The Legacy of Loving," by Hofstra law professors Joanna Grossman and John DeWitt Gregory, is forthcoming in Howard Law Journal.
... 1991, Canada, the United States, and Mexico began negotiations that would lead to adoption of a trilateral North American Free Trade Agreement. Representing the United States was Trade Representative Carla A. Hills.
... 1941, U.S. Rep. Lucille Roybal-Allard (D-Cal.) was born in Los Angeles.