The Ninth Circuit\u27s \u3ci\u3ePerry\u3c/i\u3e Decision and the Constitutional Politics of Marriage Equality

In Perry v. Brown, the Ninth Circuit ruled that California’s Proposition 8 violates the Equal Protection Clause. Reacting to the state supreme court’s recognition of marriage equality for lesbian and gay couples, Proposition 8 was a 2008 voter initiative that altered the state constitution to “restore” the “traditional” understanding of civil marriage to exclude same-sex couples. The major theme of the Yes-on-Eight campaign was that the state should not deem lesbian and gay unions to be “marriages” because schoolchildren would then think that lesbian and gay relationships are just as good as straight “marriages.” Proposition 8 intended that gay and lesbian couples be carved out of civil marriage and relegated to a separate institution, domestic partnerships. The court properly viewed this official status segregation with suspicion—a suspicion that was confirmed by the proponents’ open denigration of lesbian and gay marriages and their inability to tie taking away marriage rights to a genuine public interest. The original meaning of the Equal Protection Clause was that the Constitution does not tolerate class legislation—namely, laws that separate one class of citizens from the rest and bestow upon its members a less esteemed legal regime and, with it, an inferior status. This is exactly what Proposition 8 did. Hence, Judge Reinhardt was strictly enforcing the original meaning of the Equal Protection Clause, as applied to the facts before him

Vetogates, Chevron, Preemption

Article I, Section 7 of the Constitution creates a structure that makes it difficult to enact federal statutes: in order to become a Law, statutory proposals must be accepted in the same form and language by both the House and the Senate and must be presented to the President. Fifteen years ago, scholars from a variety of perspectives seized upon this structure to think about its implications for American public law. Professor Bradford Clark argues that the lawmaking process entailed in Article I, Section 7 is one constitutional structure that helps safeguard federalism . . . simply by requiring the participation and assent of multiple actors before there can be a national Law that can preempt state law under the Supremacy Clause. He also argues that the Article I, Section 7 structure provides a reason for the Supreme Court to rethink at least one feature of its Chevron doctrine, namely, the deference the Court sometimes gives to dynamic agency interpretations that have the effect of preempting state law. For agency lawmaking that is Chevron-eligible, the Court asks whether Congress has directly addressed the issue; if not, the Court accepts the agency view so long as it is reasonable. Some judges and commentators have argued that Chevron deference ought to apply very broadly, to any case where an agency has authoritatively interpreted a federal statute. The Court and most commentators have limited Chevron to instances where the agency is acting under the auspices of a congressional delegation of lawmaking authority

Super-Statutes

Not all statutes are created equal. Appropriations laws perform important public functions, but they are usually short-sighted and have little effect on the law beyond the years for which they apportion public monies. Most substantive statutes adopted by Congress and state legislatures reveal little more ambition: they cover narrow subject areas or represent legislative compromises that are short-term fixes to bigger problems and cannot easily be defended as the best policy result that can be achieved. Some statutes reveal ambition but do not penetrate deeply into American norms or institutional practice. Even fewer statutes successfully penetrate public normative and institutional culture in a deep way. These last are what we call super-statutes

Latter-Day Constitutionalism: Sexuality, Gender, and Mormons

The extensive involvement of the Church of Jesus Christ of Latter- day Saints in the campaign that in 2008 overrode gay marriage in California brought sharp scrutiny to the interaction of Mormon theology and public constitutionalism. This Article explores Latter-day constitutionalism as an important normative phenomenon that illustrates the deep and pervasive interaction among social norms, constitutional rights, and faith-based discourse

Democracy, Kulturkampf, and the Apartheid of the Closet

In the generation after World War 2 (1945-69), homosexual intimacy was a serious crime in Colorado and other states, as was any kind of lewdness or homosexual solicitation; people suspected of being homosexual were routinely dismissed from federal, state, and private employment.\u27 In the generation after Stonewall (1969-97), Colorado\u27s legislature repealed the state\u27s consensual sodomy law, and the governor by executive order prohibited state employment discrimination on the basis of sexual orientation. The cities of Aspen, Boulder, and Denver enacted ordinances prohibiting private sexual orientation discrimination in housing, employment, education, public accommodations, and health and welfare services. In 1992, the voters of Colorado adopted the following amendment to the state constitution: No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. The United States Supreme Court struck down Amendment in Romer v. Evans based on its conflict with the Equal Protection Clause. Writing for himself and two other justices, Justice Scalia dissented, starting with the premise that [t]he Court has mistaken a Kulturkampf for a fit of spite, and arguing at length that the Court\u27s opinion was inconsistent with both precedent and the ordinary operation of the democratic process. Justice Scalia was using the term Kulturkampf\u27 out of context. Kulturkampf, a German word for culture war or struggle, was a nineteenth century campaign by Bismarck\u27s German Empire to domesticate the Roman Catholic Church in public culture. The most noted national Kulturkampf in the United States was the nineteenth century campaign by the federal government to force conformity on the Church of Jesus Christ of the Latter Day Saints ( LDS Church ), a campaign that included statutes criminalizing cohabitation outside of marriage, depriving cohabiting or polygamous Mormons of the rights to vote and to serve on juries, stripping the same rights from anyone advocating polygamy, and confiscating the property of the LDS. The Supreme Court upheld the anti-Mormon Kulturkampf in most respects. The anti-Mormon decision Davis v. Beason was one of two precedents invoked by Justice Scalia to support the constitutionality of Amendment 2. The other precedent cited was Bowers v. Hardwick

Interpreting Legislative Inaction

This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. In this article, Professor Eskridge addresses the issue of how legislative inaction should affect statutory interpretation. He begins by constructing a detailed analysis of the Court\u27s legislative inaction cases, arguing that the case law is much more coherent than previous analysts have suggested. Professor Eskridge then considers Justice Scalia\u27s critique of that case law and provides support for Justice Scalia\u27s views by distinguishing actual and presumed legislative intent, arguing that, based on a conception of actual intent, Justice Scalia\u27s arguments have great persuasive power. However, Professor Eskridge suggests presumed intent may be the more accurate basis for statutory interpretation, and he concludes that on such a basis the guidance provided by legislative silence in the Patterson context is compelling