Judicial Activism and the Brown v. Plata Decision of May 23, 2011 | Eastern North Carolina Now

    The NJ constitution states that the "legislature shall provide for the maintenance and support of a thorough and efficient system" of free education from elementary school through high school. Back in January, the NJ Supreme Court concluded that the record was insufficient to make a determination and then appointed Judge Peter E. Doyne as a Special Master to create a record on this issue and to make proposed findings of fact and conclusions of law. The Order required Judge Doyne to provide his findings and conclusions by March 31, 2011. The court, on May 24, accepted the conclusions of Judge Doyne and ordered that the state spend an extra $500 million next year in public school education, for these "Abbott" school districts. The question is why are they even still considered a 'separate' type of school district? The purpose of the massive funding over the years was intended to "eliminate the distinctions" between the school districts.

    Governor Chris Christie and state legislators are trying desperately to solve the state's financial crisis. The taxpayers in the state are overtaxed and overburdened and need relief. Who do you think knows best how to deal with the crisis... elected legislators or judges who are appointed and not accountable to those taxpayers? The NJ Supreme Court decided it was the court who knows best. It decided it has the authority to determine what level of funding satisfies the constitution's requirement and to order the state to spend more if the court is not satisfied. This case is an example of where the state's highest court has court has taken on the role of judiciary, legislator, and chief executive and this particular court has a history of such decisions.

    The state is seeking, by way of legislative power over appropriations, to diminish the "Abbott" districts' pupils' right to funding to receive a "thorough and efficient education" through SFRA and to achieve a release, if you will, from the "parity' requirement. State legislators are not seeking to use the appropriations power as a shield to the state's responsibilities but rather, to be able to approach the matter in a reasonable and fiscally sensible way.

    Perry v. Schwarzenegger (California, 2010)

    On August 4, a federal court in California struck down the gay marriage ban, popularly known as Proposition 8, and handed a victory to thousands of gays and lesbians who demanded they be entitled to "marry" their partners. Civil unions weren't good enough, for in their eyes they are a "separate-but-equal" classification that made them feel like second class citizens. True equality was their desire. From plaintiffs' standpoint, the title of marriage is an intangible right and California had no legitimate reason to deny it to them. In Perry v. Schwarzenegger, the district court for the northern district of California found in favor of Kristen Perry and her partner Sandra Stier and Paul Katami and his partner Jeffrey Zarrillo, all plaintiffs in this litigation. The judge, Judge Vaughn R. Walker, was openly gay.

    Judge Walker, who was appointed to the federal bench by Ronald Reagan in 1987 and then promoted by George H.W. Bush to sit on the U.S. District Court, declared that "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. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."

    Proposition 8 is the California state constitutional amendment voted upon by the majority of the people in the state to preserve the traditional definition of marriage. The constitutional amendment represented the will of the people themselves after the state legislature removed the words "between a man and a woman" from the definition of marriage in the California Family Code (which itself had also been a popular initiative). As Douglas Napier, an attorney with the Alliance Defense Fund who defended Proposition 8, commented: "The whole nation is watching, and the whole nation should be quaking to think that a single judge sitting in California can reverse the will of 7 million voters." He scolded the judge for making the case more about gay rights than about voters' rights. Brian Brown, president of the National Organization for Marriage, said: "With a stroke of his pen, Judge Walker has overruled the votes and values of 7 million Californians who voted for marriage as one man and one woman."

    Plaintiffs insisted that there is no meaningful distinction for purposes of marriage between a gay person in a "long-term committed relationship" and any other person, and that any effort to draw such a distinction would present an "intractable line-drawing problem." In their complaint, plaintiffs alleged that they "are gay and lesbian residents of California who are involved in long-term, serious relationships with individuals of the same sex . . . ." They argued that Proposition 8 is unconstitutional because it prohibits them "from marrying the person with whom they are in a loving, committed, and long-term relationship . . . ." Indeed, Plaintiffs insisted that they "are similarly situated to heterosexual individuals for purposes of marriage because, like individuals in a relationship with a person of the opposite sex, they are in loving, committed relationships." They claimed that they were denied their due process rights under the Fourteenth Amendment (which provides that "State shall deprive any person of life, liberty, or property, without due process of law") because their freedom to "marry" the person of their choice was violated by Proposition 8. Plaintiffs claimed that the right to marry is a fundamental right, protected by their state constitution. Specifically, plaintiffs alleged a due process violation because: (1) Proposition 8 prevents each plaintiff from marrying the person of his or her choice; (2) One's choice of a marriage partner is protected by the Fourteenth Amendment from the state's unwarranted regulation of that choice; and (3) California's provision of a domestic partnership (a status giving same-sex couples the same rights and responsibilities of marriage without providing the actual 'title' of marriage) does not afford plaintiffs an adequate substitute for marriage and, by disabling plaintiffs from marrying the person of their choice, invidiously discriminates, without justification, against plaintiffs and others who seek to marry a person of the same sex.

    On the other hand, proponents (ProtectMarriage.com) defended Proposition 8 on the grounds that it:

    (1) Maintains California's definition of marriage as excluding same-sex couples;
    (2) It preserves the traditional meaning of marriage as it has always been defined in the English language;
    (3) It preserves the traditional social and legal purposes, functions, and structure of marriage;
    (4) It affirms the will of California citizens to exclude same-sex couples from marriage;
    (5) It promotes stability in relationships between a man and a woman because they naturally (and at           times unintentionally) produce children;
    (6) It promotes the optimal environment (that is, in households with a man and wife) for child-rearing;           and
    (7) It allows the state to proceed with caution when implementing social changes.

    They argued that Proposition 8 should be evaluated in light of the "central purpose of marriage, in California and everywhere else,.... to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation." As they explained: "responsible procreation is really at the heart of society's interest in regulating marriage." Furthermore, they asserted that marriage for same-sex couples is not implicit in the concept of ordered liberty and thus its denial does not deprive persons seeking such unions of due process. Nor, proponents continued, does the exclusion of same-sex couples in California from marriage deny them equal protection because, among other reasons, California affords such couples a separate and equal (a parallel) institution under its domestic partnership statutes.

    The judge criticized proponents for weak and bigoted arguments and commented that their case basically hinged on the argument that marriage should be protected because of procreation. The judge went so far as to paraphrase their argument as follows: "Proponents' procreation argument, distilled to its essence, is as follows: 'the state has an interest in encouraging sexual activity between people of the opposite sex to occur in stable marriages because such sexual activity may lead to pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households.' The state therefore, according to their argument, has an interest in encouraging all opposite-sex sexual activity, whether responsible or irresponsible, procreative or otherwise, to occur within a stable marriage, as this encourages the development of a social norm that opposite-sex sexual activity should occur within marriage. Entrenchment of this norm increases the probability that procreation will occur within a marital union. Because same-sex couples' sexual activity does not lead to procreation, according to proponents the state has no interest in encouraging their sexual activity to occur within a stable marriage. Thus, according to proponents, the state's only interest is in opposite-sex sexual activity."

    It is interesting, in a disturbing way, to note in the Judge's decision how he referred to and characterized proponents. Basically he viewed them as bigoted, morally righteous, and outwardly discriminatory. He accused them of intentionally perpetuating invidious stereotypes to advance their agenda. As the judge described: "Proposition 8 campaign presented to the voters of California a multitude of television, radio and internet-based advertisements and messages. The advertisements conveyed to voters that same-sex relationships are inferior to opposite-sex relationships and dangerous to children. The premises on which Proposition 8 was presented to the voters which gave him cause for concern were the ones as follows:

    (1) Denial of marriage to same-sex couples preserves marriage; (he didn't buy it. Didn't think it was a           compelling argument)
    (2) Denial of marriage to same-sex couples allows gays and lesbians to live privately without requiring           others, including (perhaps especially) children, to recognize or acknowledge the existence of same-sex           couples; (he found this insulting)
    (3). Denial of marriage to same-sex couples protects children; (he claimed this allegation was based on           cruel stereotyping)
    (4). The ideal child-rearing environment requires one male parent and one female parent; (he didn't buy           this one either)
    (5). Marriage is different in nature depending on the sex of the spouses, and an opposite-sex couple's           marriage is superior to a same-sex couple's marriage; (he found this argument had no merit)

    Judge Walker, throughout his decision, consistently equated marriage with "committed long-term relationships." Indeed, he emphasized that "deep emotional bonds and strong commitments" are the key "characteristics relevant to the ability to form successful marital unions." In the end, Judge Walker was persuaded by the plaintiffs' arguments that Proposition 8 is an intentionally discriminatory attempt by bigoted individuals to perpetuate invidious stereotypes in order to maintain marriage as an institution only for heterosexuals and that gays and lesbians are capable of forming stable long-term committed relationships just like heterosexuals. He was not persuaded by proponents' arguments and testimony to show the benefits of a traditional nuclear family with traditional gender roles. Judge Walker found in favor of the gay and lesbian plaintiffs.

    The decision was appealed to the United States Court of Appeals for the Ninth Circuit, and on June 13, 2011, a hearing was conducted before another district court judge regarding a motion to vacate Judge Walker's decision because of his sexual orientation. As proponent's (ProtectMarriage) filing states, "Judge Walker's 10-year-long same-sex relationship creates the unavoidable impression that he was not the impartial judge the law requires." (Judge Walker retired from the bench in February 2011). On June 14, the federal District Court for the Northern District of California upheld Judge Walker's decision. Judge James Ware would not throw out Walker's decision on the basis of bias. Doing so, Judge Ware noted, would send a message that minority judges could not rule in civil rights cases. (Judge Ware took over the Perry case after Walker retired). Judge Walker, who retired from the bench in February of this year, had remained silent about his homosexuality and status while on the bench. He discussed it for the first time once he retired, sharing that he has been in a 10-year relationship with a physician. ProtectMarriage thought he should have disclosed the relationship; the group said that the judge's relationship put him in the same shoes as the plaintiffs, and therefore should have been disclosed when he was assigned to the case. In response to that argument Ware wrote: "The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married and that rendered him incapable of making an impartial decision is warrantless."

    So that's one challenge down already.

    In every case, there are "findings of fact" and "questions of law." The judge weighs the facts, evidence, and testimony and makes the determination as to which facts are to be given the most weight. These are the "findings of fact." Then he applies the law to those facts, which is the "questions of law" part of the decision. Legally, the challenges in this case are 2-fold: attacking the judge himself on the grounds of unreasonable bias (asking to have Judge Walker's decision vacated, in district court) and challenging his application of the law (appeal to the Court of Appeals for the Ninth Circuit; San Francisco). Much of the case boils down to "questions of law" to which appellate courts review de novo. (Again, that means they look at them completely fresh). At the appellate level, Judge Walker's determinations would essentially be given no deference there. However, Judge Walker also listed many "findings of fact." These are not reviewed fresh, but are only overturned if they are "clearly erroneous." There is a good chance that the "findings of fact" will be re-visited because Judge Walker essentially assigned no weight to any of the testimony, findings, and arguments of the proponents, shrugging them off as merely the views of a homophobic, morally-righteous, bigoted and outwardly discriminatory" group of people. People living in the real world would have concluded and weighed the facts very much differently. There would have at least been meaningful, robust discussion.

    At this point in the appellate process, however, the Court of Appeals for the Ninth Circuit must determine whether or not ProtectMarriage in fact has "standing" to defend the law in court. The State of California has refused to enforce the law or defend it in court, and as a result, ProtectMarriage, a strong supporter of the law, has decided to step up to defend it. "Standing" is a requirement that any plaintiff or challenger must show to bring a lawsuit. The party must demonstrate a sufficient connection to and harm from the law or action. The party must show that it has been "directly or indirectly harmed by a ruling or law." The Court of Appeals ordered the California Supreme Court to determine the standing of ProtectMarriage and it is expected to make that determination in the early fall. The case would then go back to the Court of Appeals. Regardless of the outcome, it is expected to make it to the Supreme Court for the fall term (October 2011).

    References:

    Brown v. Plata, 563 U.S. ___ (May 23, 2011). Referenced at: http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf. [No. 09-1233. Argued November 30, 2010 and Decided May 23, 2011]

    Adam Liptak, "Justices Order California to Shed 30,000 Prisoners," NY Times, May 23, 2011. Referenced at:
http://www.nytimes.com/2011/05/24/us/24scotus.html
The Slaughterhouse Cases, 83 U.S. 36 (1873), Oyez. Referenced at: http://www.oyez.org/cases/1851-1900/1872/1872_2/.

    Everson v. Board of Education, 33 U.S. 1 (1947), Cornell University Law School. Referenced at: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0330_0001_ZS.html

    Daniel Costello, "Brown v. Board of Education Under Originalist Principles: Would Plessy Hold?," Arcane Knowledge, 2007. Referenced at: http://www.arcaneknowledge.org/histpoli/brown.htm.

    "With an Even Hand: Brown at Fifty, " The Library of Congress. Referenced at: http://www.loc.gov/exhibits/brown/brown-brown.html

    Milliken v. Bradley, 418 U.S. 717 (1974)

    Thomas Jefferson to the Danbury Baptist Association, the Founders Constitution: Amendment 1 (Religion). Referenced at: http://press-pubs.uchicago.edu/founders/documents/amendI_religions58.html

    Jefferson's Letter to the Danbury Baptist Association, stephenjaygould.org. Referenced at: http://www.stephenjaygould.org/ctrl/jefferson_dba.html

    Roe v. Wade, 410 U.S. 113 (1973). Referenced at: http://www.oyez.org/cases/1970-1979/1971/1971_70_18.

    Griswold v. Connecticut, 381 U.S. 479 (1965).

    Christopher Neefus, " Justice Ginsburg Says She Originally Thought Roe v. Wade Was Designed to Limit 'Populations That We Don't Want to Have Too Many Of'," CNS News, Aug. 9, 2009. Referenced at: http://www.cnsnews.com/node/50819

    Abington School District v. Schempp, 374 U.S. 203 (1963). Referenced at: http://www.oyez.org/cases/1960-1969/1962/1962_142.

    Engel v. Vitale, 370 U.S. 421 (1962). Referenced at: http://www.oyez.org/cases/1960-1969/1961/1961_468/.

    Brown v. Board of Education, 347 U.S. 483 (1953-54). Referenced at: http://www.oyez.org/cases/1950-1959/1952/1952_1/.

    Swann v. Charlotte-Mecklenburg Board of Ed., 402 U.S. 1 (1971). Referenced at: http://www.oyez.org/cases/1970-1979/1970/1970_281.

    Green v. County School Board of New Kent County, 391 U.S. 430 (1968)

    Emily Bazelon, "The Place of Women on the Court," NY Times, July 7, 2009. Referenced at: http://www.nytimes.com/2009/07/12/magazine/12ginsburg-t.html?pagewanted=1

    Adam Liptak, "Justices Order California to Shed 30,000 Prisoners," NY Times, May 23, 2011. Referenced at: http://www.nytimes.com/2011/05/24/us/24scotus.html

    The "Civil Rights Cases": United States v. Ryan, United States v. Nichols, United States v. Singleton, and Robinson v. Memphis & Charleston R. Co.

    Olmstead v. U.S., 277 U.S. 438 (1928)

    Carrie Severino, "New Jersey Supreme Court Usurps State Education Budget," National Review Online, May 24, 2011. Referenced at: http://www.nationalreview.com/bench-memos.

    Bench Memos, National Review Online. Referenced at: http://www.nationalreview.com/bench-memos.

    "Border States Deal With More Illegal Immigrant Crime Than Most, Data Suggest," Fox News, April 30, 2010. Referenced at: http://www.foxnews.com/politics/2010/04/29/border-states-dealing-illegal-immigrant-crime-data-suggests/

    Bob Braun, " Schools Case Decided, but Plenty Left Unanswered," Star Ledger, May 26, 2010. Referenced at: http://blog.nj.com/njv_bob_braun/2011/05/bob_braun_schools_case_decided.html

    Diane Rufino, "Perry v. Schwarzenegger - California Becomes the Latest Battleground for Gay Marriage Rights," Aug. 17, 2010. http://forloveofgodandcountry.wordpress.com

    Zak Slayback, "Proposition 8: Long Path to the Supreme Court," Daily American, May 11, 2011. Referenced at: http://articles.dailyamerican.com/2011-05-11/entertainment/29534743_1_protectmarriage-oral-arguments-ruling-or-law

    Dan Levine and Peter Henderson, "Gay Judge's California Same-Sex Marriage Ruling Upheld," Yahoo News (Reuters), June 14, 2011. Referenced at: http://news.yahoo.com/s/nm/us_gaymarriage_california

    Diane Rufino has her own blog For Love of God and Country. Come and visit her. She'd love your company.