Sunday, October 5, 2008

The importance of the courts as the elections draw near...

The failure of conservatives to understand and appreciate the function of the Article III courts in our system never ceases to amaze me. Phrases such as "judicial usurpation of the will of the people" are bandied about by people who appear to know nothing about why the federal courts are independent in our tripartite system of government, and why federal judges may not be removed from the bench (or suffer a pay decrease) except in cases of corruption or other gross malfeasance.

The provisions of the Bill of Rights were not written to protect popular people or to serve the interests of the majority in our democracy. The framers of our Constitution recognized that there would be occasions when the will of the majority would have to be restrained, and that impediments would have to be created to ensure that the will of the majority would, at times, deliberately and intentionally be thwarted. They created the Senate, with its complex procedural rules and the need for cloture votes, to impede and retard the will of the majority. They created the Article III courts knowing that these courts would hand down unpopular decisions. It is true that the US Constitution is primarily a procedural document, but it is also the opinion of many scholars (and of the writer) that the Constitution also incorporates substantive guarantees and protections. It is with particular reference to the Due Process Clauses of the Fifth and Fourteenth Amendments that constitutional scholars are split, with "strict constructionists" at one end of the spectrum and believers in "substantive due process" at the other end.

By their terms, the Due Process Clauses are entirely procedural, and merely guarantee that persons accused of breaking the law must receive fair and impartial hearings. The extremists who believe that "substantive due process" has no place in due process jurisprudence fail to grasp the fact that the law is written for a purpose; that the law is intended to protect concepts that are central to our notion of what it means to be free human beings in a society predicated on the recognition of "ordered liberty." In short, scholars who believe in substantive due process believe not just in the how of the law, but also in the why of the law. It would perhaps be best to characterize the difference between judicial conservatives and judicial liberals by asserting that the latter believe that the Constitution itself protects certain fundamental rights from encroachment by the state or federal governments – that the Constitution implicitly includes “Due Substance” Clauses in parallel with the explicit Due Process Clauses.

It should be noted that the Due Process Clause of the Fifth Amendment is binding on the behaviour of the US government, whereas the Due Process Clause of the Fourteenth Amendment is binding on the behaviour of the states. For the purpose of analysis, claims against the US government implicating the Due Process Clause of the Fifth Amendment are treated almost identically to claims against the states implicating the Due Process Clause of the Fourteenth Amendment. However, over the course of many decades, the US Supreme Court has gone further, and has held that there are some issues involving the exercise of liberty interests that may not be infringed by the state or federal governments, regardless of the fairness of the procedures involved when adjudicating allegations of criminal conduct. In other words, judges and constitutional scholars who believe in the precept of substantive due process maintain that there are some spheres of personal conduct that may not be regulated by the state or federal government at all, absent reasons which may vary in terms of significance, depending on the nature of the liberty interests at stake. These scholars believe that the Due Process Clauses protect substance, and not merely procedure.

The substantive reach of the Due Process Clauses is limited by interpretation of the word “liberty” as that word appears in these Clauses. What is liberty? Freedom from imprisonment clearly lies at the heart of liberty (“Freedom from imprisonment -- from government custody, detention, or other forms of physical restraint -- lies at the heart of the liberty that Clause protects” (Zadvydas v. Davis, 533 U.S. 678 (2001))). However, the Due Process Clause protects people from more than mere freedom from physical restraint (“We have held, of course, that the Due Process Clause protects interests other than the interest in freedom from physical restraint, see Michael H. v. Gerald D., 491 U.S. 110 (Albright v. Oliver, 510 U.S. 266 (1994))). The Court has held that the protections afforded individuals by the Due Process Clause of the Fourteenth Amendment include a parent’s right to send a child to a private school (Pierce v. Society of Sisters, 268 U.S. 510 (1925)), the right to teach a child a foreign language in a parochial school (Meyer v. Nebraska, 262 U.S. 390 (1923)), the right to marry (Zablocki v. Redhail, 434 U.S. 374 (1978)), the right to enter into a multiracial marriage (Loving v. Virginia, 388 U.S. 1 (1967)), the right to procreate (or not to procreate) (Skinner v. Oklahoma, 316 U.S. 535 (1942)), the right to use contraceptives (Griswold v. Connecticut, 381 U.S. 479 (1965), Eisenstadt v. Baird, 405 U.S. 438 (1972)), the right to abortion (Roe v. Wade, 410 U.S. 113 (1973)), and most recently, the right of gay men and lesbians to have sex (Lawrence v. Texas, 539 U.S. 558 (2003)). All of these activities are protected by the Due Process Clause of the Fourteenth Amendment – more specifically, by the substantive component of this Clause. Through interpretation of the word “liberty,” the Court has held that all of the above actions involve the engagement of persons in the exercise of their liberty interests, and that all of these actions are protected by this component.

The last of these decisions (Lawrence, supra) ended a 17 year period during which gay Americans could be (and occasionally were) prosecuted and persecuted for having gay sex, even in the privacy of their own homes. Lawrence directly and bluntly overruled an earlier decision (Bowers v. Hardwick, 478 U.S. 186 (1986)) which held that gay Americans could be prosecuted for engaging in same-sex sexual activity, even in the privacy of their own homes. When Bowers was decided, 25 states criminalized gay sex; during the 17 year interval between the handing down of Bowers and its demise with the handing down of Lawrence, gay activists were largely successful in turning to state supreme courts to attack these statutes on independent state constitutional grounds (under our principles of judicial federalism, a state supreme court decision implicating only state constitutional considerations may not be reviewed by the US Supreme Court); by the time Lawrence was handed down, the number of states with such criminal penalties on their books had dropped from 25 states to 14 states. It should be remembered that punishment for violating these statutes varied from a light fine to up to 20 years in prison, depending on the state in which gay people had sex.

(Federal judges are still grappling with the reach of Lawrence. The US Supreme Court, in Lawrence, never actually stated the standard of review that it applied in overturning Bowers and in holding the Texas statute (and 13 other state statutes) to be unconstitutional. Although the US Supreme Court invoked much of the language employed in traditional rational basis review in striking down the Texas statute that prohibited people from having gay sex, constitutional scholars have pointed out that the Court actually engaged in a much more searching standard of review than that involved in mere rational basis review. In May, a three-judge panel of the US Court of Appeals for the Ninth Circuit analyzed Lawrence by carefully scrutinizing what the US Supreme Court actually did in Lawrence, as opposed to what the Court said it did, and concluded that the Court had, at the very least, engaged in heightened scrutiny (quasi-strict scrutiny) in striking down this measure (the dissenting circuit court justice went further, opining that the Court had applied strict scrutiny). The three-judge panel reinstated a lawsuit filed by an Air Force major (Margaret Witt) who had been suspended from duty pursuant to 10 U.S.C. sec. 654 (the basis for the “Don’t Ask, Don’t Tell” policy that prohibits openly gay men and women from serving in the Armed Forces) (see Witt v. Department of the Air Force, No. 06-35644). Circuit Judges Ronald M. Gould and Susan P. Graber held that the Court had applied heightened scrutiny, whereas Senior Circuit Judge William C. Canby held that the Court had applied strict scrutiny.

In June, a divided three-judge panel of the US Court of Appeals for the First Circuit upheld 10 U.S.C. sec. 654 (and thus “Don’t Ask, Don’t Tell”), but also applied a heightened level of scrutiny in its analysis (see Cook v. Gates, Nos. 06-2313, 06-2381, June 9, 2008). Like the Ninth Circuit panel, the First Circuit panel concluded that the Lawrence Court had not, in fact, applied rational basis review. Circuit Judge Jeffrey R. Howard, writing for the majority, held that Lawrence recognized a protected liberty interest in private, consensual sexual intimacy, requiring a “balancing of constitutional interests that defies either the strict scrutiny or rational basis label.” Judge Howard engaged in a meticulous examination of Lawrence, articulating four reasons in support of this holding. First, he noted that Lawrence relied on other cases (such as Roe v. Wade, supra, Griswold, supra, and Eisenstadt, supra) that recognized a due process right in the realm of decisions relating to personal sexual conduct that merited heightened scrutiny. Second, he noted the tenor of the language employed by the Lawrence Court, which used strong language to overturn Bowers and to stress the dignity of gay Americans (“The case…involve[s] two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”). This language was consonant with, and consistent with discussions of core constitutional rights that clearly mandate a greater level of protection. Thirdly, Judge Howard noted that in overturning Bowers, the Lawrence Court explicitly stated that Justice John Paul Stevens’ dissent in Bowers should have been controlling; this dissent clearly asserted that the right to engage in private, consensual gay sex with an adult partner was in the same category as recognized fundamental constitutional rights. Finally, Judge Howard noted what numerous constitutional scholars have noted – which is that, had the Lawrence Court engaged in genuine rational basis review, the State of Texas would undoubtedly have won (this level of review, described as a “paradigm of judicial restraint” (see FCC v. Beach Communications, Inc., 508 U.S. 307 (1993)), permits even post hoc justifications for the challenged legislation, and permits the reviewing court to reach out and assert its own justification(s), independent of and in addition to the state’s arguments).

Two circuit panels have now interpreted Lawrence as incorporating a heightened level of judicial scrutiny. The failure of the US Supreme Court to acknowledge, explicitly, the level of review that it applied should not be confused with an assumption that the Court employed rational basis review merely because the Court employed some of the language associated with traditional rational basis review. The Lawrence Court explicitly rejected the notion that rights deserving of a higher level of review than mere rational basis review must necessarily be rooted in the “history and tradition” analysis usually reserved for the recognition of fundamental rights, instead pointing explicitly to an “emerging awareness” of the right to privacy in certain sexual contexts. Two circuits have therefore taken the official position that Lawrence involved more than mere rational basis review; the Ninth Circuit adumbrates a heightened scrutiny analysis, whereas the First Circuit embraces a balancing test in which the right to gay sexual privacy must be recognized and balanced against a sufficiently important governmental interest.)

Strict constructionists would deny that the Due Process Clause of the Fourteenth Amendment (or its Fifth Amendment counterpart) incorporated substantive protections against state action; all of the above decisions would be unsupportable in the eyes of a jurist who adheres to an absolutely literal interpretation of the Due Process Clauses. Rights which Americans take for granted – the right to use contraceptives, the right to teach your children the languages of your choice, the right to marry a person of a different race – would not exist under such a judicial regimen. All of these matters would be subject to the outcome of the democratic process. Article III courts would merely review the procedural fairness of the laws passed by Congress and by the states, completely avoiding any analysis of the substance (or the “why”) of the law.

This is not how the judiciary functions in the context of a constitutional democracy. A key role of the courts is to protect the rights of minorities, consistent with the generally recognized definition of a democracy as being a system in which the majority rules, subject to certain rights that are preserved for minorities regardless of majoritarian sentiment. In United States v. Carolene Products Co., 304 U.S. 144 (1938), the US Supreme Court hinted at what has become a theory of judicial review that arguably operated when Romer v. Evans, 517 U.S. 620 (1996) was handed down. In the oft-cited Footnote 4 of Carolene Products Co., the Court made reference to the possibility that a democracy can, in the words of constitutional scholar John Hart Ely, “malfunction” (see “Democracy and Distrust; A Theory of Judicial Review” by John Hart Ely – this book has become one of the most oft-cited texts employed by constitutional scholars). Ely identifies one type of democratic “malfunction” occurring when a democracy restructures itself in such a manner as to “keep the outs out and to keep the ins in.” This is certainly what occurred in 1992 when the people of the State of Colorado amended their state constitution in such a manner as to deny to gay persons, and to gay persons alone, the right to petition their government, at any and all levels, for redress of grievances, in both the public and the private sectors. Although the US Supreme Court claimed that it adopted the rational basis test in striking down this measure (which was named “Amendment 2”), constitutional scholars have pointed to the strong language employed by the Court in this decision, and have observed that the stated rationale of the Court was not really different from the rationale adopted by the Colorado Supreme Court. (Romer was an equal protection case, and a full analysis of this decision and its implications falls outside the scope of this essay.)

While the writer respects the position adopted by “strict constructionists,” the writer deplores the actual operation of this judicial philosophy and believes it to be fundamentally un-American. The judiciary should be more than an interpretive body; it is a crucial structural and operational check against majoritarian overreaching, or excesses. Associate Justices Antonin Scalia and Clarence Thomas, with their hysterical, shrill, over the top dissents in both Lawrence and Romer revealed, with chilling verbiage, the direction in which their versions of “strict constructionism” would take America.


Religion is not an excuse to break the law!

Conservatives are now in an uproar over a decision handed down by the California Supreme Court on Monday, in which the court held that two Christian doctors could not exempt themselves from the requirements of the state's anti-discrimination statute by refusing to provide artificial insemination services to a lesbian woman on religious grounds. Writing for a unanimous court, Justice Joyce Kennard held that the doctors had neither a free speech defense or a religious free exercise defense for their refusal to provide these services to a gay woman, Guadalupe Benitez. This ruling makes it clear that medical services may not be withheld from gay Californians on the basis of religious conviction.

I find myself wondering whether critics of this decision actually bothered to read the opinion handed down by the California Supreme Court (North Coast Women’s Care Medical Group, Inc. v. Benitez, No. GIC770165). This unanimous opinion analyzed the claim asserted by the plaintiff taking into consideration both US constitutional issues and California state constitutional issues. Under our principles of judicial federalism, a state court opinion that implicates both US constitutional analysis and state constitutional analysis may only be reviewed by the US Supreme Court (or by any other Article III court) to the extent that the opinion in question relies upon US constitutional analysis. If independent state constitutional grounds suffice to sustain the judgment, the US Supreme Court cannot reverse the judgment; it may only negate the US constitutional analysis with which it disagrees.

The California Supreme Court first addressed the standard of review that is applicable to claims of religious objection under the relevant US Supreme Court precedents. Prior to 1990, any law that burdened a particular religious practice was subjected to strict scrutiny (e.g., Sherbert v. Verner, 374 U.S. 398 (1963), Wisconsin v. Yoder, 406 U.S. 205 (1972)). However, in Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the US Supreme Court held that a law of general application that was not passed in an attempt to target a particular religious practice, but which nevertheless has the incidental effect of infringing upon a particular religious practice, will be upheld against constitutional attack provided it satisfies rational basis review. This marked a profound change in the manner in which the Court adjudicated claims of Free Exercise violations. The US Supreme Court reiterated that holding three years later in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). Thus, under current US Supreme Court holdings, a religious objector has no federal constitutional right to an exemption from a neutral and valid law of general application on the grounds that compliance with that law violates the religious beliefs of the objector.

It is well established legal doctrine that the US Constitution sets a floor, but not a ceiling, to the rights enjoyed by the people of the United States. State constitutions may be, and frequently are, interpreted to grant the citizens of the respective states additional rights and protections not afforded them under US constitutional analysis. It is amusing to note that the very conservatives who deplore this “one-way ratchet” effect now seek its benefit. In Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527 (2004), the California Supreme Court applied the rational basis review test adopted by the US Supreme Court in Smith (supra) and upheld from constitutional attack the Women’s Contraception Equity Act (WCEA), which requires that employers which provide prescription drug insurance coverage for their employees include coverage for prescription contraceptives. The court explained: “The WCEA’s requirements apply neutrally and generally to all employers, regardless of religious affiliation, except to those few who satisfy the statute’s strict requirements for exemption on religious grounds. The act also addresses a matter the state is free to regulate; it regulates the contents of insurance policies for the purpose of eliminating a form of gender discrimination in health benefits. The act conflicts with Catholic Charities’ religious beliefs only incidentally, because those beliefs happen to make prescription contraceptives sinful.” (Catholic Charities, supra, at p. 549.)

The state supreme court invoked the US Supreme Court’s Smith test in the context of this issue. The court noted that medical practitioners fall under the domain of entities subject to the proscriptions of the Unruh Civil Rights Act. This act requires that business establishments provide “full and equal accommodations, advantages, facilities, privileges, or services” to all persons, notwithstanding their sexual orientation (sexual orientation was explicitly added to the protective ambit of this act in 2005; before 1999, California’s appellate courts had interpreted the act as prohibiting sexual orientation discrimination, despite the fact that the wording of the act did not include reference to sexual orientation).

The plaintiffs asserted that a higher level of review was required because their claim involved “hybrid rights” (the plaintiffs asserted that in addition to infringing their Free Exercise rights, the act infringed their free speech rights under the First Amendment). The state court rejected this assertion, pointing out that the US Supreme Court has never determined whether the “hybrid rights” theory is valid, and has never invoked this theory to justify applying strict scrutiny to a free exercise claim. The state court also invoked precedent from the US Court of Appeals for the Sixth Circuit, which rejected as “’completely illogical’ the proposition that ‘the legal standard [of review] under the Free Exercise Clause depends on whether the free-exercise claim is coupled with other constitutional rights.’ (Kissinger v. Board of Trustees [(1993) 5 F.3d 177, 180 & fn. 1.)” The state court rejected the contention by Catholic Charities that requiring it to provide prescription contraceptive coverage to its employees would violate its First Amendment right to free speech, noting that “compliance with a law regulating health care benefits is not speech.”

In short, the court held that religious beliefs cannot be invoked as a shield to justify disobeying laws of general application. There are many fundamentalist Christians who sincerely believe that gay men and lesbians should be stoned to death; murdering gay Americans on religious grounds is not tolerated in America, and few reasonable people would regard it as proper for a court of law to entertain such a defense to murder charges.

We do not live in a theocracy. We live in a pluralistic, diverse constitutional democracy. We do not get to pick and choose which civil and criminal laws to follow and which laws to break based on personal religious beliefs. The physicians who refused to provide their services to the lesbian women cannot evade their legal responsibility to comply with the law simply because they do not believe that gay women should be permitted to avail themselves of artificial insemination procedures granted without reservation to heterosexual, married women. If these physicians have any sense, they will acknowledge that they do not enjoy special rights merely because they disapprove of gay sex and of gay Americans.


Victory in California!

I am profoundly grateful to Chief Justice George and the other members of the majority who voted to legalize gay marriage in California (in re Marriage Cases, S147999 (2008) 08 C.D.O.S. 5820). By relying entirely on the state constitution’s guarantees of due process and equal protection, without placing any reliance on the Due Process or Equal Protection Clauses of the US Constitution’s Fourteenth Amendment, the majority ensured that this decision is immune to review by the US Supreme Court (cases involving adjudication of only the state constitution may not be reviewed by any Article III court under our system of judicial federalism). I have yet to hear any coherent argument against gay marriage; those who oppose gay marriage frequently make a great deal of noise, but their arguments ring increasingly tired and hollow.

What should be noted is the influence that Lawrence v. Texas, 539 U.S. 558 (2003) had on the majority opinion (although, as noted above, the majority did not place reliance on this decision). The Lawrence Court explicitly and bluntly overturned Bowers v. Hardwick, 478 U.S. 186 (1986) (“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”). The Lawrence Court implicitly apologized to the gay community for the manner in which it had demeaned gay Americans (“The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.”). What is noteworthy about Lawrence is the fact that the Court held that Bowers was badly decided at the time that it was handed down; usually, the Court overturns decisions with which it no longer agrees by adducing societal changes as justification for overruling such decisions (for example, in striking down the death penalty as applied to mentally retarded individuals (Atkins v. Virginia, 536 U.S. 304 (2002)) and in cases where the perpetrator was a juvenile at the time that he or she committed the crime in question (Roper v. Simmons, 543 U.S. 551 (2005)), the Court relied upon objective criteria indicative of changing societal norms, in accordance with its holding that the Eighth Amendment’s prohibition of cruel and unusual punishments “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” (Trop v. Dulles, 356 U.S. 86 (1958))). In Lawrence, the Court was honest enough to admit that it had made a serious mistake in Bowers, acknowledging “…the Court's own failure to appreciate the extent of the liberty at stake.” The Court went on to admit that “[t]o say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.”

The California Supreme Court drew an analogy to what the US Supreme Court did in Lawrence. Instead of framing the issue as being whether or not the California state constitution grants a right to “same-sex marriage,” the court identified marriage as a “fundamental right” under the relevant California state court precedents (e.g. Ortiz v. Los Angeles Police Relief Assn. (2002) 98 Cal.App.4th 1288, 1303; in re Carrafa, (1978) 77 Cal.App.3d 788, 791), and then asked whether the state could meet the burdens of “strict scrutiny” to justify limiting marriage to opposite-sex only couples. The adoption of this paradigm lay at the heart of the decision; the court compared this case to its decision in Perez v. Sharp, 32 Cal.2d 711 (1948) (declaring the state’s prohibition of interracial marriages violative of the state constitution’s guarantees of substantive fairness and equal protection). The court, in Perez, did not address the issue in terms of whether the state constitution granted a right to “interracial marriage” – rather, the court addressed the issue of whether or not interracial couples could be denied the right to marry. In in re Marriage Cases, the court addressed the issue of whether or not gay couples could be denied the right to marry. The court accepted the analysis of Chief Judge Judith Kaye of the New York Court of Appeals, in her dissent in the New York gay marriage case (Hernandez v. Robles, 7 N.Y.3d 338 (2006), in which the gay plaintiffs lost) who declared that “Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them.”

At least as important as the judgment in in re Marriage Cases was a crucial aspect of the court’s reasoning. The court held that classifications on the basis of sexual orientation are “suspect,” and that gay men and lesbians constitute a “suspect class” for the purposes of equal protection analysis. This is an extremely important development. Legislation that adversely impacts a “suspect class” must be subjected to the highest level of judicial scrutiny, referred to as “strict scrutiny.” Under the relevant California precedents, “strict scrutiny” requires that the state demonstrate that the challenged legislation promotes a “compelling” state interest, and that the challenged legislation is “necessary” to promote that interest. In other words, the challenged legislation must promote a state interest of crucial importance (examples include national security and the protection of life itself); furthermore, only by implementing the challenged legislation can that interest be promoted. Note that this standard is very similar to “strict scrutiny” in federal equal protection jurisprudence. Strict scrutiny in federal equal protection jurisprudence requires that the state demonstrate the existence of a compelling state interest, and that the legislation in question must impinge the disadvantaged group in the “least restrictive” manner possible; that is to day, the legislation must be “narrowly tailored” so as to sweep no more broadly than is essential to promote the interest in question (see Heller v. Doe, 509 U.S. 312 (1993)). Even if the court’s decision is overturned by the voters in November 2008 (a measure will appear on the ballot to amend the state constitution to define marriage as being limited to one man and one woman only), this aspect of the court’s reasoning will not be disturbed. Assuming passage of the amendment, legislation that classifies on the basis of sexual orientation must now be subjected to strict scrutiny by lower courts throughout the state.

Currently, the State of California offers “domestic partnerships” to same-sex couples who choose to avail themselves of this option. These partnerships are substantively almost identical to marriages, and the court engaged in an extended discussion as to whether or not these partnerships constitute an adequate alternative to marriages. The court concluded that the existence of such a two-tiered system created the very real danger that relationships between gay couples would be treated with less dignity and respect than relationships between heterosexual couples. The court further noted, with extraordinary eloquence, that “because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise – now emphatically rejected by this state – that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples.” The court also noted that acknowledgment by a person that he or she is in a domestic partnership effectively constitutes acknowledgement by that person that he or she is gay; the very term “domestic partnership” denotes a registered gay relationship, whereas the term “marriage,” if retained exclusively for registered heterosexual relationships and used in the same context, denotes a registered heterosexual relationship. Thus the very term “domestic partnership,” when used by a person to describe his or her relationship status, constitutes a public acknowledgement of that person’s sexual orientation – an acknowledgement not demanded of similarly situated heterosexual, married persons.

As alluded to above, it is possible that the California state constitution may be amended by the voters through the referendum process in November 2008 to define marriage as a union of only one man and one woman. The tangible, substantive effects of such an amendment would not be nearly as deleterious as was the case in (for example) the State of Nebraska, in which state the recognition of same-sex relationships was explicitly prohibited by a state constitutional amendment enacted in 2000 (this amendment prohibited the recognition not just of gay marriages, but also the recognition of civil unions, domestic partnerships, and any similar statutory arrangements). This is because California domestic partnerships would not be nullified by the proposed constitutional amendment. Immediately following the handing down of in re Marriage Cases on May 15, 2008, polls indicated that a narrow majority favored enactment of the proposed amendment. However, a Field Poll result released on May 28, 2008 indicated that 51% of registered voters favored allowing gay couples to wed, with only 42% disapproving. Although a coalition of states and right-wing pressure groups has petitioned the court to stay its decision until after the November elections, it appears likely that gay couples will be permitted to marry within the next two or three weeks. This is the first time that a majority of citizens of a state have favored gay marriage. In the event that the court allows such marriages to proceed, voters will be faced with the prospect of dissolving existing gay marriages in November – a very different matter from prohibiting such marriages from being solemnized in the first place.

It remains to be seen whether those Californians who know gay couples will vote to dissolve the marriages of their friends, family members, and colleagues. Regardless of the outcome, political commentators believe that this reflects a turning point in relationships between gay and heterosexual Americans.