In the 5-4 decision, the U.S. Supreme Court released its decision in Ricci v. DeStefano this morning. The case, an appeal from a ruling of the Second Circuit Court of Appeals, deals with Title VII of the Civil Rights Act of 1964 in the context of firefighter testing and promotion procedures. Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin. The plaintiffs were all firefighters employed by the City of New Haven, Conn., who applied for promotion and took the necessary exams in 2003. The exams were prepared by an Illinois company that specialized in entry-level and promotional examinations for police and fire departments. The company’s vice-president subsequently testified that all of the questions were drawn from or based in the syllabus, and that the exam was facially neutral. However, when the results came in, all but one of the top candidates was white (the exception was Hispanic). New Haven’s Civil Service Board, charged with certifying the results, held hearings in which the “very significant disparate impact” was raised by the City’s corporation counsel, who “strongly advocated against certifying the exam results” (because “a statistical demonstration of disparate impact,” standing alone, “constitutes a sufficiently serious claim of racial discrimination to serve as a predicate for employer-initiated, voluntar[y] remedies – even . . . race-conscious remedies”). The Board ultimately decided not to certify the results, relying on federal, state and local anti-discrimination laws. It argued that it had a good-faith belief that Title VII mandated non-certification, and that the City could have faced Title VII liability for adopting a practice having a disparate impact on minority firefighters.
When Ricci and some of the other applicants sued, alleging violations of Title VII and their equal protection rights, the district court upheld the City’s decision and granted it summary judgment, finding that the defendants’ “motivation to avoid making promotions based on a test with a racially disparate impact, even in a political context, [did] not, as a matter of law, constitute discriminatory intent;” and that there was no Equal Protection violation in the decision not to use the promotional exams. “None of the defendants’ expressed motives could suggest to a reasonable juror that defendants acted ‘because of’ animus against non-minority firefighters who took” the exams. The Second Circuit – a panel that included now Supreme Court nominee Sonia Sotomayor – affirmed in a very brief, two-page decision. After the Supreme Court agreed to hear the case, IMLA filed an amicus brief in support of the City.
In today’s ruling, the Supreme Court reversed and remanded, focusing only on the Title VII issue and finding it unnecessary to deal with the Equal Protection arguments. Justice Kennedy delivered the opinion of the Court, ruling that the City’s action in discarding the tests violated Title VII: a “race-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The [City], we further determine, cannot meet that threshold standard.” Fear of litigation alone could not justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.
Certain government actions to remedy past racial discrimination – actions that were themselves based on race – were constitutional only where there was a “strong basis in evidence” that the remedial actions were necessary. Applying the strong-basis-in-evidence standard to Title VII, before an employer could engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact, the employer had to have a strong basis in evidence to believe it would be subject to disparate-impact liability if it failed to take the race-conscious, discriminatory action. Here, the Board’s hearings produced no strong evidence of a disparate-impact violation. The majority of the Court concluded that all of the evidence demonstrated that the City rejected the test results only because the higher-scoring candidates were white. Without some other justification, the Court held that this express, race-based decision-making was prohibited.
A threshold showing of a significant statistical disparity and nothing more was far from the required strong basis in evidence that the City would have been liable under Title VII had it certified the test results. That was because the City could be liable for disparate-impact discrimination only if the exams at issue were not job-related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. Based on the record the parties developed through discovery, there was no substantial basis in evidence that the test was deficient in either respect.
Accordingly, the City’s race-based rejection of the test results could not satisfy the “strong basis in evidence” standard. “On this basis, we conclude that petitioners have met their obligation to demonstrate that there is ‘no genuine issue as to any material fact’ and that they are ‘entitled to judgment as a matter of law.’”
The majority concluded that “[o]ur holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.”
The decision is available online at http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf
Posted By: Larry Hoyt, County Attorney, Boulder, Colorado
Curious – Part Three, where we consider the arguments from the Proposition 8 challenges in determining, inter alia, whether a state constitutional equal protection clause resembles most a Thanksgiving turkey, ready to be carved up, leaving only the carcass. If you missed out on Parts One and Two, make sure you check them out.
Equal protection in California: Interestingly, the California constitution originally did not have an express equal protection clause. This is of course due to the fact that the original state constitution was approved in 1849, some 19 years prior to the addition of Amendment XIV to the U.S. Constitution that contained the federal equal protection clause.
Prior to the addition of an equal protection clause in the California constitution, an equal protection guarantee was held by the California courts to exist, based upon the state constitutional guarantees of liberty, due process, privileges and immunities, and uniformity of application of laws. Not until 1974 did the state constitution obtain an express equal protection clause, one which tracks the language of the federal 14th Amendment.
As we learned in Part 2 of this blogpost, the state supreme court was called upon to rule on the applicability of the state’s equal protection guarantee, as well as its due process guarantee, to same-gender couples seeking to marry on the same terms and conditions as was statutorily provided to opposite-gender couples, in In re Marriage Cases (183 P.3d 384 Cal. 2008; opinion issued May 15, 2008.) In that case, the court held that gay men and lesbians who seek to marry a person of the same gender were entitled to do so by virtue of the state due process and equal protection clauses, based upon a finding that marriage is a fundamental right, that sexual orientation is a suspect classification, and that none of the rationales given by the state for limiting marriage to opposite-gender couples could survive rational basis scrutiny, let alone strict scrutiny.
Proposition 8: Persons seeking to limit marriage in California solely to opposite-gender couples began their quest to insert that provision into the state’s constitution in October, 2007. The petitions for an initiative to accomplish this were submitted in April, 2008, and on June 2, 2008, the measure was certified to the statewide November 2008 general election ballot.
Of course, intervening between the time the petitions were submitted and the measure was certified, the In re Marriage Cases decision was announced. Because the language of the measure had been set before the case opinion was issued, it did not expressly seek to counter the ultimate decision by the court. The language of the proposition was quite simple:
Only marriage between a man and a woman is valid or recognized in California.
Cal. Const., Art. I, Sec. 7.5
Due to the intervening California Supreme Court decision in In re Marriage Cases, the state Attorney General, Jerry Brown, in June 2008 decided on language to be included in the state’s Voter Information Guide:
ELIMINATES RIGHT OF SAME-SEX COUPLES TO MARRY. INITIATIVE – CONSTITUTIONAL AMENDMENT.
● Changes the California Constitution to eliminate the right of same-sex couples to marry in California;
● Provides that only marriage between an man and a woman is valid or recognized in California.
The Office of the Legislative Analyst went on to include the following analysis: “…As a result, notwithstanding the California Supreme Court ruling of May 2008, marriage would be limited to individuals of the opposite sex, and individuals of the same sex would not have the right to marry in California.”
The Proponents’ statement in the Voter Information Guide stated further: “Your YES vote on Proposition 8 means that only marriage between a man and a woman will be valid or recognized in California, regardless of when or where performed. But Prop. * will NOT take away any other rights or benefits of gay couples.”
[Emphasis in original; emphasis supplied.]
Proposition 8 was approved by voters by a margin of 52% to 48% on Nov. 4, 2008. By its own terms, it was to take effect immediately upon the determination of the vote.
The Challenges to Proposition 8: On November 5, 2008, before the final vote had been tabulated, 3 petitions to stay its effect and 1 petition for mandate were filed with the state Supreme Court. Ultimately, 6 challenges were filed in that court, 2 by various individuals, 1 by the City and County of San Francisco, 1 by the Asian Pacific American Legal Center, 1 by Equal Rights Advocates and the California Women’s Law Center, and 1 by the California Council of Churches.
In response, 2 groups of individuals and entities sought intervention in support of the validity of Prop. 8: the “Official Proponents of Proposition 8” and the Campaign for California Families. Over 45 groups have been granted status amici curiae in opposition to Prop. 8, and about 15 groups supporting Prop. 8 have been granted such status. The City and County of San Francisco was joined by amici cities of Berkeley, Cloverdale, Davis, Long Beach, Palm Springs, and West Hollywood, by the Town of Fairfax, and by the counties of Humboldt and Sonoma.
The court has denied the petitions to stay the effect of Prop. 8, but granted review of the validity of Prop. 8 via the following certified questions:
(1) Is Proposition 8 invalid because it constitutes a revision of, rather than
an amendment to, the California Constitution?
(2) Does Proposition 8 violate the separation-of-powers doctrine under
the California Constitution?
(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on
the marriages of same-sex couples performed before the adoption of
The court has set oral argument in the consolidated cases for the morning of March 5, 2009. For more information, use the following link: http://www.courtinfo.ca.gov/courts/supreme/highprofile/prop8.htm
Arguments for and against the validity of Prop. 8:
Proposition 8 is valid because:
● The rational basis for voters to approve Prop. 8’s limitations is that the limitation of marriage to opposite-gender couples is a deeply-rooted, multi-generational judgment. The people of the state have created it via its constitution, having reserved to themselves the right to initiate amendments to the constitution, and have the inherent right to amend the constitution to affirm the widely-held beliefs about the structure of institutions in society.
● Equal protection is not beyond the purview of the people of the state; the right to amend the constitution exists in priority to the power reposed in the judiciary to interpret the state constitution. Equal protection is fundamental to the constitutional scheme, but the people of the state can decide how to apply equal protection to specific situations.
● This is a simple amendment to the state constitution, which does not alter the basic structure of government, and therefore is not a constitutional revision requiring additional and extraordinary legislative process.
● The ultimate value that is guaranteed by equal protection is human dignity, and in a state that permits abortion and capital punishment, both approved by the courts in due process challenges, the people can decide to treat persons differently consistent with the notion of human dignity.
● Prop. 8 is not retroactive; it prevents the validity and legal recognition of same-gender marriages as of its effective date. Same-gender couples married in California, or married elsewhere but residing in California prior to the effective date of Prop. 8 are no longer married, nor will their marriages be recognized for any legal purpose by governmental institutions, but this is prospective, not retroactive.
● Same-gender couples in California can in the future obtain the benefits of the state’s domestic partnership law, and will have virtually all the same benefits that they would have had had they been able to marry or their marriages recognized as valid. Thus, no equal protection violation exists. (This argument is exactly the one that was decided to the contrary in In re Marriage Cases.)
Prop. 8 is invalid because:
● Although popular sovereignty via the initiative process is a foundational premise of the state constitution, there are other foundational principles that inhere in that document, including due process and equal protection. If these principles are to mean anything, they must be upheld against an assertion of unfettered authority of a majority of voters to eliminate a fundamental right from a disfavored suspect minority class of citizens.
● The right to equal protection was deemed so fundamental that, after 125 years of statehood, the legislature referred to the voters a revision to the state constitution to make the guarantee of equal protection express, rather than an inherent element of due process and liberty.
● Prop. 8 is a revision of the constitution, requiring approval by a 2/3rd vote of each house of the state legislature and referral and approval by the voters, not simply an amendment capable of being initiated by petition and vote, because it directly contradicts a fundamental principle of the whole constitutional document, i.e. equal application of the laws to every person subject to such laws.
● Prop. 8 alters the fundamental structure of government, in that it removes from the judicial branch its authority to enforce equality of the laws of the state. In this manner, Prop. 8 also violates the separation of powers doctrine of the state constitution.
● Prop. 8, even if valid, should not be held to affect marriages previously performed, validated, or recognized in California. Nothing in the language of the ballot issue nor in the Voters Guide informed voters clearly that existing same-sex marriages would be invalidated by Prop. 8 if it were approved.
● Prop. 8 should not be retroactively applied to preexisting same-sex marriages because it conflicts directly with other constitutional measures, i.e. equal protection and the fundamental right of marriage found to inhere in the privacy and due process clauses of the state constitution.
● Retroactive application of Prop. 8 would violate the vested property and liberty interests of married same-gender couples. Much of this argument results from the fact that California is a “community-property” state, so invalidating a marriage results in dis-appropriating from each spouse the property that, but for the marriage, would be the community property of the married couple.
● Marriage is in part a contract, and retroactive nullification of marriages would violate the contracts clause of the state constitution. (You will note that the same violation would occur relative to the federal contracts clause, but petitioners have been very careful to argue only state constitutional limits and provisions, in order to avoid the potential appeal of a decision to the U.S. Supreme Court.)
So can voters carve away parts of state equal protection via the initiative? Only the California Supreme Court (and maybe not even it) knows for sure. State law requires that a decision be rendered within 90 days, so on or before June 3, 2009, a decision will be announced.
Thus, watch this space for the “epi-blog.”
In the meantime, we will take up consideration of the multi-state campaign to render affirmative action programs unconstitutional through initiated amendments to various state constitutions.
Curious – Part Two, where we consider the question, ♫“What’s love got to do with it?”♫; oh, wait, that’s a different blog….The question here is “What’s equal protection got to do with marriage?” …in which equal protection comes to the fore: Who is entitled to equal protection; what is equal (ah, yes, the “good ole days of ‘separate but equal’”), and in what manner protection?
You’ll recall, in the last episode, we discussed the action of the Mayor of San Francisco, Gavin Newsom, and his decision to “order” the County Clerk to start issuing same-sex marriage licenses back in 2004. Now, why would a mayor of any city do such a thing, when the state’s marriage laws clearly stated that marriage in California was solely between a man and his wife, oops…I mean, a man and a woman (old habits die hard!) [Note: the California marriage statute prior to 1977 did not specify that the relationship being licensed was between two persons of the opposite sex; however, when several same-gender couples applied for licenses, the legislature in that session enacted a change to the statute to state that a marriage license was to be issued to a couple composed of one man and one woman. California voters went a step further in 2000, approving an initiated statute (Proposition 22) that stated that no marriage other than that of one man and one woman would be valid or recognized in California.]
According to Mayor Newsom, he did it because he determined that the limitation of the California marriage statutes solely to opposite-gender couples was unconstitutional discrimination against same-gender couples. He also noted that he took an oath of office to uphold the constitution of the state of California, and his action was compelled by his finding that the marriage statutes were unconstitutional under the state constitution’s equal protection clause (based upon prior case law outlawing discrimination based upon gender as well as sexual orientation.)
As noted in Part One, the Mayor succeeded, for about a week; then the California Supreme Court issued an order that no further marriage licenses were to be issued to same-gender couples until final action in a mandamus case brought against the Mayor by the state Attorney-General, Bill Lockyer. Ultimately, the Court held:
1) although there are a few narrow exceptions to the rule, generally, an executive official cannot “determine” a statute’s constitutionality (based upon the separation of powers doctrine, that is the function of the courts;)
2) moreover, a statute that prescribes a ministerial duty upon a local government official cannot be ignored based upon that official’s determination that the statute is unconstitutional, since the only duty of such an official is to follow the dictates of the statute and presume its constitionality;
3) oh, and by the way, Mr. Mayor, the officer whose ministerial duty it is to issue marriage licenses in California is the county clerk, not the mayor, and the county clerk’s duty is to follow the statutes, not direction from a mayor.
As a result, the injunction against same-sex marriage licenses was made permanent, and the County Clerk was ordered to revise the official records to delete all the same-sex marriage licenses that had previously been issued and to notify all of those couples (4,000) that they were not in fact married under California law.
The Court in Lockyer did NOT reach the issue on the merits, i.e. whether the prohibition on issuance of licenses to or recognition of same-sex couples as “married” created an unconstitutional classification. The Court did note that several marriage lawsuits were then-pending in state trial courts. The Lockyer decision was played out against a backdrop that also included the adoption in 2003, effective January 1, 2005, of a statewide domestic partnership law, that would give to registered domestic partners almost all of the same rights as those accorded under state law to married couples.
It was this law that set up the equal protection, “separate but equal” v. “separate and inherently unequal” case that was decided in In re Marriage Cases (183 P.3d 384 Cal. 2008.)
Curiousity No. 2: What’s in a Name
“…What’s in a name? that which we call a rose
By any other name would smell as sweet;…”
Juliet in William Shakespeare’s Romeo and Juliet, Act II, Scene 2.
In In re Marriage Cases, the Court found that the legislature and voters in that state had set up a system whereby both opposite-gender couples and same-gender couples had their relationships officially recognized, the first as marriage, the latter as “domestic partnership”, and “virtually” all the same state rights and responsibilities flowed to each couple under state law. The Court found that this situation was exactly as intended by the California legislature, in its 2003 act, which started with the following legislative declaration:
The Legislature set forth the purpose of this act in section 1 (an uncodified provision) of the legislation, declaring: “This act is intended to help California move closer to fulfilling the promises of inalienable rights, liberty, and equality contained in Sections 1 and 7 of Article 1 of the California Constitution by providing all caring and committed couples, regardless of their gender or sexual orientation, the opportunity to obtain essential rights, protections, and benefits and to assume corresponding responsibilities, obligations, and duties and to further the state’s interests in promoting stable and lasting family relationships, and protecting Californians from the economic and social consequences of abandonment, separation, the death of loved ones, and other life crises.” (Stats. 2003, ch. 421, § 1, subd. (a).) 183 P.3d at 414.
After much analysis (as you might expect), the Court holds:
1) The right to marry the person of their choice is a fundamental right of every person, deriving from the state constitution’s due process clause concepts of liberty and the dignity of every individual as well as the rights to marital and family privacy;
2) Marriage does not require the ability to procreate as a necessary characteristic;
3) The creation of stable families and households is just as important for same-gender couples as for opposite-gender ones, including the needs that arise from responsible child-rearing;
4) A relationship known and solemnized as “marriage” accords a certain dignity, respect, and stature that is not accorded by society to the recently-invented “domestic partnership;”
5) Sexual orientation is not a subset of “sex or gender”, and therefore the marriage statute does not violate equal protection based upon a sex or gender classification;
6) Sexual orientation is itself a suspect classification for California equal protection purposes (due to the historic powerlessness of the minority defined by such classification), and therefore statutory classifications on that basis must survive strict scrutiny;
7) While there are legitimate bases for certain marriage limitations (proscription based upon certain degree of consanguinity, e.g.), this is not the case for the preclusion of marriage for same-gender couples, which is not necessary to effectuate any compelling state interest.
So gay men and lesbians are entitled as such to equal protection, and “separate but equal” is not good enough. On that basis, the Court ordered the limiting language excised from the statute and held that Proposition 22 (2000) was unconstitutional. The courts on remand then ruled that county clerks would have 30 days in which to implement the decision of the Supreme Court, so on June 16, 2008, marriage licenses would once again be issued to same-gender couples.
Posted By: Larry Hoyt, County Attorney, Boulder, Colorado
Curious – Part One:
Background: A funny thing happened on the way to the wedding chapel!
First, way back in 2004, the Honorable Gavin Newsom, Mayor of San Francisco, ordered the County Clerk to begin issuing marriage licenses to same-sex couples; numerous licenses were issued and ceremonies held within the space of about a week to great notoriety and in the face of multiple camera crews, in the San Francisco City Hall, and the San Francisco Superior Court refused to stop the weddings that were taking place.
However, a week later, upon petition of the state Attorney General and others, the state Supreme Court enjoined further issuance of same-sex marriage licenses, then decided on the merits that San Francisco did not have the authority to permit marriages that were contrary to state law; it ruled that the marriages that had been performed for same-sex couples to that date were invalid (see Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055.)
All of this was happening while a coalition of individuals and groups were pursuing lawsuits in the California state courts seeking to overturn the state law (mini-DOMA: state “Defense of Marriage Act”, styled after the federal DOMA signed by Clinton in 2000, that states that no agency of the federal government shall recognize a same-sex marriage, and seeks to limit any use of the Full Faith and Credit Clause to extend recognition of a same-sex marriage in one state to other states) that limited state recognition of marriages to those comprised of two opposite-gender individuals.
Finally, in May 2008, the California Supreme Court took this issue head-on, and ruled that the California state constitution’s equal protection clause required marriage equality, that sexual orientation is a suspect classification, and that marriage is a fundamental right. Same-sex marriage certificates began to be issued on July 17, 2008.
*But wait! Even as the Court was issuing its ruling, same-sex marriage opponents had obtained sufficient signatures on petitions to place an initiated measure on the statewide ballot in November to amend the California state constitution to include a provision stating that marriage in California is solely between one man and one woman. On November 4, 2008, statewide voters approved the ballot measure, known as Proposition 8, by a margin of 52% to 48%, and county clerks throughout the state were ordered to stop issuing same-sex marriage licenses once again.
Immediately following the announcement by the California secretary of state’s office that Prop. 8 appeared to have passed, lawsuits were once again filed, this time directly in the California Supreme Court, asking that Prop. 8 be declared void.
So, Curiosity No. 1 is the California Supreme Court’s ruling from May 15, 2008, that limiting marriage to only opposite-gender couples is unconstitutional as a violation of equal protection under the state constitution. The Court stated the issue thusly:
Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.” The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.
In re Marriage Cases 43 Cal.4th 757, 779-780, 183 P.3d 384, 39, 76 Cal.Rptr.3d 683, 699 (Cal.,2008)
It turns out that, but for the approval by the state legislature of a same-sex domestic partnership law, effective January 1, 2005, that provided for domestic partnerships with virtually all the state-law derived rights and responsibilities of marriage in California, the Court would have been presented with essentially the identical question that many other courts have addressed, i.e. is a state’s constitutional guarantee of equal protection violated by restricting state recognition of marriage to opposite-gender couples? Instead, the Court was presented with a “separate-but-equal” challenge, given the marriage v. domestic partnership scheme of California law.
Why is this curious? It evokes a great deal of irony that, essentially, the more rights and responsibilities a state recognizes for same-sex couples, the less likely it is to be able to maintain a distinction between those relationships and state-sanctioned marriage. Put another way, the states that treat same-sex couples the worst (i.e. no recognition, no rights or responsibilities that accompany the relationship, as opposed to the rights of individuals who have many characteristics, including a sexual orientation) have the best chance to discriminate against same-sex couples in excluding them from marriage. Perhaps it was good for California, but query where it leaves GLBT persons in the middle of the country who are seeking protections for even more basic rights, like employment, enjoyment of public accommodations, and housing?
NEXT TIME: Curiosity Part 2: Is a state constitution’s equal protection guarantee worth anything?