International Municipal Lawyers Association - Local Government Blog

The Curious Case of California Same-Sex Marriage

January 29, 2009

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?


January 28, 2009
Leave a Comment

Posted By:  Adrian Herbst, The Baller Herbst Law Group, P.C.

On Monday, January 26, 2009 HR 1 was introduced to the 111th Congress. This Bill as an Act is cited as the “American Recovery and Reinvestment Act of 2009” (“Act”). For the full text connect to:  For a summary of the broadband portion of the Act prepared by the Committee on Energy and Commerce, connect to:  Although the Act contains numerous provisions, with over 650 pages, and titles of importance to state and local governments, this article briefly describes the part of the Act which provides for broadband stimulus, including $6 billion for infrastructure development. 

The National Telecommunications and Information Administration (“NTIA”) is directed to create a national “broadband inventory map” that identifies the geographic extent to which broadband service capability is available.  In addition, it includes the requirement that the NTIA establish “wireless and broadband grant programs.”  The purpose is to provide for a comprehensive nation‑wide inventory of existing broadband and to establish grants that will stimulate the development of broadband infrastructure for economic development and the availability of wired and wireless broadband throughout the country.  The needs and priorities will be identified by each state and at least one grant must be available in each state.  The following provides a brief summary of grant funding and purposes:


·        Grants will be available for rural open access broadband with 50% to be awarded no later than September 30, 2009. 

·        Grants for wireless deployment and broadband deployment for the development of basic broadband service and advanced broadband service capabilities. 

·        Grants to fund state broadband tracking initiatives; with the NTIA, to develop and maintain broadband inventory maps of the United States.

·        Grants for wireline to be split 75% for advanced broadband in underserved areas and 25% for basic broadband in unserved areas. 

·        Grants for wireless to be split 75% for advanced broadband in underserved areas and 25% for basic wireless in unserved areas.


The Act requires the FCC to define in much greater detail the meaning of “unserved” and “underserved” areas.  This should not be construed as limiting the extent of the grant program and, by way of example, NATOA has developed a list of projects that can be initiated in a matter of months, and completed within approximately two years.  For the NATOA list connect to:

It is important for state and local governments to begin to think about the importance of the Act and the broadband portion and identify state and local priorities.  The time periods under the Act for submitting grant requests will, as currently written in the Act, be somewhat short as it is very clear that the intention is for fast action to enable rapid economic recovery.  Further, the Obama administration has made it clear that this Act and the stimulus and economic recovery programs to be initiated by the Obama administration are absolutely essential for our national recovery, including jobs creation and business stimulation.  This Obama administration has sent a clear message to Congress of the importance of taking action at an early date.  An understanding of the Act and its relationship to state and local governments requires prompt attention to state and local government plans, and goals for economic development and improvement will be ready for submittal of an application for participation in the wireless and broadband grant programs.

There have been numerous articles regarding economic stimulus programs and the goals and policies of the new Obama administration.  While the Obama administration has made it clear that this Act, and in particular the broadband portions of the Act briefly outlined above, are a good start, they do not meet the full extent of the administration’s goals for infrastructure development necessary for economic recovery as well as advancing the state of broadband capabilities throughout the country. 

Our purpose in writing this brief overview of the American Recovery and Reinvestment Act of 2009 is to bring to the attention of IMLA members and local officials the importance of the Act for state and local governments and to set the stage for subsequent articles about this Act that we will include as postings to the IMLA Blog as the Act winds its way through Congress and its ultimate passage.

Wind’s Winning Ways

January 27, 2009
1 Comment

Posted by: Dwight Merriam, Partner, Robinson & Cole, LLP

With increasing concerns about global climate change, carbon footprints, sustainability and the price of oil, everyone seems to be looking for alternatives to produce electricity.  Surprisingly, it is believed that there are only 4,000 residential small wind turbines in the country, so there remains the potential for rapid growth.[1] Wind power is the best alternative in terms of the lowest cost per kilowatt hour among the technologies that are practical and reasonably available.[2]

Electric generators come in a wide variety of shapes and sizes from a few hundred watts such as might be used to provide additional power on a small boat or to run a water pump in a distant farm field, to a 50 kW or larger unit where the basic enclosure for the wind turbine is the size of a city bus.

While much has been written on planning for regulating large wind farm systems, there is a surprising lack of information about what local governments can and should do about the smallest of systems, the backyard wind turbine systems. How do we plan for them?  How should they be regulated? What should local officials be doing to assist homeowners in making decisions about the installation of residential wind turbines?

I have an article on the regulation of small “backyard” wind turbines forthcoming in the Vermont Journal of Environmental Law in which I attempt to answer these questions, at least in part.  Professor Ronald H. Rosenberg made a great presentation on the subject of wind power generally at IMLA’s Nashville meeting in October 2007.  His comprehensive article is “Diversifying America’s Energy Future: The Future of Renewable Wind Power,” Virginia Environmental Law Journal, Vol. 26, p. 505 (2008) and is available at  It’s the place you want to start it if you need to get up to speed quickly.

One of the best places to go to keep up with latest developments is National Wind Watch, Inc., which is — in its own words — “a nonprofit corporation that promotes knowledge and raises awareness of the negative environmental and social impacts of industrial wind energy development.”I don’t find the news they report all that negative and I have not found a better source for local developments in planning and regulation.  Information, analysis, and other materials are available on its website, You can sign up for its news feed at Their channel on YouTube is

This last week the site reported on a zoning amendment initiative which may make good sense (especially since I suggest it in my upcoming article…) – eliminate most regulations for smaller systems under a certain capacity and height.

The hot issue right now is the Cape Wind project off of Cape Cod, opposed by Senator Kennedy and supported by Massachusetts Governor Patrick – both close to President Obama, who wants to promote sustainable, renewable power.  For the latest news on the project, go to this recent Associated Press report.   The final environmental impact statement supporting the project has just been issued.

[1]Kristin Dispenza, “Cities Look into Changing Zoning Laws to Accommodate Wind Power Generators” Energy, Energy Production (June 24, 2008 ) available at  An overview of the issues is found in Michael Donohue, “Siting of Wind Power Developments,” Zoning and Planning Law Report, Westlaw 28 NO. 4 ZPLR 1 (April 2005).


For a comprehensive analysis of the trade-offs between continuing to use fossil fuels to generate electricity and the aesthetics of wind turbines, see Avi Brisman, “The Aesthetics of Wind Energy Systems,”  New York University Environmental Law Journal, 13 NYU Envtl. L.J. 1 (2005). 



Another Cable TV Bankruptcy?

January 22, 2009
1 Comment

Posted By: Nick Miller, Partner, Miller & Van Eaton 

Change may be coming to your community. And it won’t be from Washington DC. Instead, it will be from your friendly local cable operator—if the operator is either Charter or Broadstripe.

In a reprise of the Adelphia bankruptcy filed in 2002, two major national cable operators may be headed toward Chapter 11 bankruptcy court protection from creditors. Broadstripe and its affiliates filed for bankruptcy protection on January 2, 2009 in the United States Bankruptcy Court for the District of Delaware, (Case No. 09-10006 (CSS)). Last week, Charter reported it missed an interest payment and had hired counsel to try to renegotiate its debt, signaling that a bankruptcy filing may follow before the end of this week January 23, 2009.

If your city has granted a franchise to either of these cable operators, pay attention. And share this warning with colleagues in neighboring communities that have either Charter or Broadstripe as their cable operator.

The treatment of cable franchises in bankruptcy is neither simple nor straightforward—particularly if your community benefits from a franchise that contains significant in-kind or financial benefits. Most attorneys think the only issue presented by a bankruptcy is whether amounts owed have been paid—classic creditors’ claims. This is an important issue. But there is another and more important issue created by the unique legal character of a cable franchise agreement.

A bankrupt debtor may assign executory contracts of a bankrupt estate even if the contract contains an anti-assignment clause and the counterparty objects to the assignment. See, 11 U.S.C. § 365(f). But this authority is not available when “applicable law” excuses the counterparty from accepting performance from the assignee. You should not assume a bankrupt debtor has a right to assign your cable franchise without your City’s prior, independent consent.

The Adelphia bankruptcy court recognized that a municipal ordinance could be “applicable law”. Further, it drew a distinction between an anti-assignment clause in a franchise agreement, and one found independently in an ordinance of general applicability and effectuated legitimate regulatory concerns for the benefit of the public. The court concluded that where the anti-assignment clause was contained in an ordinance of general applicability, it would not compel Adelphia communities to recognize the assignment of the Adelphia franchises to Comcast or Time Warner. In re Adelphia Communications Corp., 359 B.R. 65 (Bkrtcy.S.D.N.Y., 2007)

This important principle preserves your community’s right to take an independent look at the proposed restructuring or transfer of the franchise to a new operator.

A different problem may confront your community if your state has recently adopted one of the state-wide franchise laws pushed by at&t over the last few years. There may be no transfer of a franchise involved if the purchaser of the assets in bankruptcy already holds a state-wide franchise in its own right. In that case, your strategy for protecting your community may devolve to assert liens have attached to the existing facilities in the right-of-way, or other legal arguments tied to your right-of-way property interest.

Obviously your community’s specific rights will vary depending on the language of your franchise and local ordinances. But stay alert, and plan both to file a creditor’s claim to preserve your financial claims and to file an objection to preserve your authority to reject a franchise transfer if you are not satisfied by the promises of the new operator.

Musings from the Frigid Tundra (Thanks to the ones who left open the freezer door this week)

January 21, 2009
Leave a Comment

Posted By: Warren Kraft, Assistant City Attorney/HR Director, West Bend (Wisconsin)

Winter’s grip always tightens in mid-January.  The gloom-and-doom weather forecasters predict dangerous wind chills additional to bouts of two-to-five inch snowfalls this week, sometimes strong enough winds to create blizzard-like conditions where metropolitan communities still struggle to remove the after effects of record-setting December snowfalls.  And, still to come: the annual news items concerning Seasonal Affective Disorder.

So, the other day, trying to reach my daughter on her cellphone, I could only leave messages.  Text messages 🙂 (yes, I learned how to do that recently) also went unanswered.  When she finally connected on her boyfriend’s phone, I heard the ever-frequent reason that her cellphone died.  Haven’t you heard of a charger, honey, I asked as sweet as I could to mask my frustration.  But, Dad, she replied in her customary you-are-sometimes-so-dumb response, don’t you know that you’re suppose to run out the charge on your battery before recharging it, so it doesn’t keep failing.

Oh, for the days of rotary dial phones, with one party-line coming into the house, so we kids could eavesdrop on our Dutch speaking neighbors’ conversation.  Not that we could understand a word of it, but the language sounded so “cool” compared to what we spoke.

And, so it is that the David Brown story in Monday’s WASHINGTON POST caught my eye: Cellphones’ Growth Does a Number on Health Research.  His lead sentence reads, “In our information-crazy, never-out-of-touch world, it’s becoming harder and harder to find out who we are and what we do.”

In a column reminiscent of last fall’s presidential election polling, it appears that the health researchers also face difficulty tracking down and contacting eligible survey participants. “Cellular telephones are perhaps the biggest threat to survey data that epidemiologists have confronted in years,” Mr. Brown wrote. “Young people, men and Hispanics are all more likely than the “average” American to have cellphones only. But those demographic factors don’t explain everything. Even after they are taken into account by statistical means, cellphone-only users are different.”

He must have met my daughter.

My Water Cooler colleagues helped me navigate to FACEBOOK because the scouts with whom I work advised me last summer that e-mail was SO 20th century, and that if I wanted to contact them quickly for future scout functions and arrangements, I need a FACEBOOK presence. [Most of our adult troop leaders have now joined. And we thought our Yahoo! Group mailing list was chique!]  While I tracked down one of my long-lost high school classmates this way, I now have a pending “friend” request from a colleague of the law firm.  Something does not seem “right” about that request.

Then, there is texting; my son’s favorite pastime.  As others will attest, the most unusual moments occur when he and his friend are texting each other as I am driving them both somewhere, like a restaurant for “free” food (well free to them) and as they sit across the table from each other in between refills from the buffet.  Remember how we feel when we get to leave a voice message on the phone of an individual when we really did not want to yet talk to that person?  Nowadays, just ignore the text message.  “My phone died, Dad, and it doesn’t save the unopened messages.”  Or, one of our scouts who texts when he really doesn’t want to talk to us leaders but knows he has to convey some type of message.

Back to Mr. Brown’s article, he continues, “But the problem goes beyond changing technology and responsiveness. It turns out that people answer the same question differently depending on how you reach them — a ‘mode effect’.” Respondents on cellphones answer differently than land-line respondents.  “For example, when a group of people with the same age, race and education are called on a conventional phone, 25 percent say they smoke, but on a cellphone 31 percent say they do. On a land line, 38 percent say they have been tested for HIV, while on a cellphone 54 percent say they have.”  One researcher, Ali H. Mokdad, an epidemiologist, speculated that people on land lines are usually at home and believe they have a role and image to maintain even though they answer in private. “’They are less likely to say something bad about their own behavior. It’s like ‘This is my house…’, ” Mr. Brown writes.

As I log in to FACEBOOK and see the updates from my “friends,” some have little shame about sharing their own behavior with the Internet community.  On the one hand, it is fun to see the New Year ’s Eve pictures of my son celebrating with his girlfriend’s family in the Dominican Republic.  And, now, some cellphone users can update their profiles without being at their computers.

Mr. Brown concludes that today’s health survey, something that probably was fairly simple and straightforward in the days of exclusively land-lined homes, is no longer.  “It’s a bit like making sausage,” said Christopher J.L. Murray, a University of Washington physician and epidemiologist. “As soon as you start to explore how surveys are made,” he said, “you begin to see how difficult it is to get consistent information at the population level over time.”

Dr. Murray must have heard about my daughter.  Do you wonder if they might be FACEBOOK friends?

Or, is it just time to curl up in front of the warming fireplace and wait out the latest gifts of winter from north of “the border?”

Next Page »

About author

This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.