Cheating marriage: a tragedy in three acts.

• Author: Eastman, John C.
• Position: Prologue through Act I. California's Proposition 8, p. 281-314 - Brigham Young University Symposium on the Future of Families and of Family Law

[T]he Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

Associate Justice Antonin Scalia (1)

At the conclusion of his opinion dissenting from the Court's holding in United States v. Windsor that section 3 of the Federal Defense of Marriage Act was unconstitutional, Justice Antonin Scalia accused the Court's majority of cheating. The current fight being waged from one end of the country to the other is, according to Justice Scalia, a political/policy dispute, not a legal dispute, and its resolution therefore belonged in the political process. The Court could have covered itself "with honor," he noted, "by promising all sides of the debate that it was theirs to settle and that [the Court] would respect their resolution." (2) "We might have let the people decide," Justice Scalia added, but the Court did not, and thereby cheated both sides of the case, depriving the former of an honest victory and the latter of a fair defeat. (3)

The cheating of which Justice Scalia accuses his colleagues on the Court is that of interfering with the political process, contrary to "what in earlier times was called the judicial temperament." (4) It is the kind of cheating that lies at the heart of a debate about the appropriate role of the courts in our democratic/republican form of government that dates back at least a half century to the 1960s-era "activism" of the Warren Court and to the counter "originalism" movement of the 1980s. While the adherents to the Warren Court's model, those who found themselves in the majority in Windsor, may, in candid moments, acknowledge that their view of the judiciary's role is not that of our nation's founders, they would not accept Justice Scalia's description of their enterprise as cheating, preferring instead to regard their active rejection of the results of the political process as an advanced stage of the delivery of justice, a prime example of the evolved role for a judiciary giving voice to a living Constitution. (5)

But another kind of cheating also occurred in the case and in the parallel case of Hollingsworth v. Perry (6) involving the constitutionality of California's one-man/one-woman marriage law, cheating of the more traditional sort that, in the end, may be even more pernicious than the cheating of which Justice Scalia complained. Both cases were, in significant measure, collusive suits with critical litigation strategies implemented by parties nominally on opposite sides of the case but who were, in truth, seeking the same outcome. This cheating involved federal and state executive officials at the highest levels of government who manipulated--not the judicial process, for the courts involved seemed to have become willing participants--but the law itself. Although there are two principal cases, this Play occurred in Three Acts, and the purpose of this article is to document what transpired and to raise a red flag of concern about the threat posed to the rule of law by the advance-the-agenda-at-any-cost tactics employed.

PROLOGUE

In 1993, the Hawaii Supreme Court held that Hawaii's marriage law, which, like every other marriage law in the country at the time, defined marriage as between one man and one woman, was a classification based on sex and therefore subject to strict scrutiny under the equal protection clause of the Hawaii Constitution. (7) Although the court remanded to the trial court for further consideration rather than ordering that a marriage license be issued to the same-sex couple who had brought the suit, most observers believed that the ruling would likely prove fatal to Hawaii's marriage law. (8) Concerns about whether same-sex "marriages" performed in Hawaii would have to be recognized elsewhere because of the Federal Constitution's Full Faith and Credit Clause (9) were raised across the country and in the halls of Congress. Although the Supreme Court has long recognized a public policy exception to the Full Faith and Credit Clause that likely would have allowed other states not to recognize same-sex "marriages" performed in Hawaii in contravention of those states contrary marriage policy, (10) that public policy exception was bolstered by an act of Congress in 1996 and by state statute or constitutional amendment in roughly three dozen states over the course of the next decade.

Congress passed the Defense of Marriage Act ("DOMA") in 1996, (11) explicitly noting that the law was adopted in the wake of the Hawaii Supreme Court decision in Baehr v. Lewin "to protect the right of the States to formulate their own public policy regarding the legal recognition of same-sex unions, free from any federal constitutional implications that might attend the recognition by one State of the right for homosexual couples to acquire marriage licenses." (12) Parroting language in the Full Faith and Credit Clause itself, section 2 of DOMA provided that no state had to give "effect" to such marriages performed in other states. (13) Section 3 of DOMA defined marriage for purposes of federal law as it had traditionally been understood--a union of one man and one woman. (14) The law was passed by overwhelming majorities in Congress--342 to 67 in the House of Representatives and 85 to 14 in the Senate--and signed into law by President Clinton, a left-of-center Democrat who would later repudiate his support of DOMA. (15)

Similar scenarios played out in numerous states around the country, with state legislatures adopting or reaffirming one-man/one-woman marriage statutes by overwhelming majorities. And in many other states, the long-standing understanding of marriage was strengthened by way of state constitutional amendment, adopted through the initiative process, or by an amendment referred to the voters by the legislature.

The situation in California played out differently. In the decade following the Hawaii Supreme Court's decision in Baehr, the people of California engaged in an epic battle over the definition of marriage that pitted the majority of the people of California against every branch of their state government. In 1994, the legislature added section 308 to the California Family Code, providing that marriages contracted in other states would be recognized as valid in California if they were valid in the state where performed. (16) Following as it did on the heels of the Hawaii decision in Baehr, there was concern that section 308 would require California to recognize as married same-sex couples who had been issued marriage licenses by other states, even though another provision of California law, Family Code section 300, specifically limited marriage to "a man and a woman." (17) This concern was foreclosed by the people at the March 2000 election with the passage of Proposition 22, a statutory initiative adopted by an overwhelming sixty-one percent to thirty-nine percent majority that provided: "Only marriage between a man and a woman is valid or recognized in California." (18)

In 2005, however, the California Legislature passed a bill in direct violation of Proposition 22, A.B. 849, which would have eliminated the gender requirement found in Family Code section 300. That bill was vetoed by Governor Arnold Schwarzenegger as a violation of the state constitutional requirement that the legislature cannot repeal statutory initiatives adopted by the people. (19) The legislature then adopted a domestic partnership law that provided that same-sex couples who registered as domestic partners "shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses." (20) The governor signed that bill into law, and it was upheld by the California Court of Appeal against a challenge that the law was contrary to Proposition 22 and therefore unconstitutional under article 2, section 10(c) of the state constitution. (21) The court held that the legislature had "not created a 'marriage' by another name or granted domestic partners a status equivalent to married spouses," and that the Domestic Partnership Act was therefore not an invalid amendment of Proposition 22. (22)

Nevertheless, a local elected official, the mayor of San Francisco, took it upon himself to issue marriage licenses in direct violation of Proposition 22. Although the California Supreme Court rebuffed that blatant disregard of the law, (23) it ultimately ruled in In re Marriage Cases that Proposition 22 was unconstitutional under the state constitution. (24)

The people responded immediately, placing another initiative on the ballot at the first opportunity, and in November 2008, Proposition 8 was adopted as a constitutional amendment, effectively overturning the decision of the California Supreme Court in In re Marriage Cases. That initiative was immediately challenged as a supposed unconstitutional revision of the state constitution rather than a valid constitutional amendment. The attorney general of the state, an opponent of Proposition 8 during the election, not only refused to defend the initiative in court, but affirmatively argued that it was unconstitutional, despite his statutory duty to "defend all causes to which the State ... is a party." (25) As a result, the high court of the state allowed proponents of the initiative to intervene in order to provide the defense of the initiative that the governmental defendants would not, recognizing proponents' preferred status under California law (the court simultaneously denied a motion to intervene by other supporters of Proposition 8 who were not official proponents of the measure) and specifically authorizing them to respond to the court's order to show cause that it...