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Interview Transcript: Law Professor Charles Doskow speaks with 5MinuteBriefs.com's Sean Olson about the Ninth Circuit Court's decision on California Proposition 8.




This interview took place on August 13.

SO:

On August 4, 2010, Judge Vaughn Walker of the United States District Court for the Northern District of California announced his ruling in the case of Perry v Schwarzenegger. The plaintiffs in this case challenged the California Marriage Protection Act, otherwise known as Proposition 8. Voters had approved that ballot measure in November of the previous year, 2009, thereby amending the California Constitution to read that "only a marriage between a man and a woman is valid or recognized in California."

In his decision, Judge Walker ruled that the California Marriage Protection Act was unconstitutional because it violated the protections guaranteed to all citizens under the 14th amendment of the United States Constitution.

To help us understand the legal issues better, we're speaking with Professor Charles Doskow. Professor Doskow is Dean Emeritus and Professor of Law at the University of La Verne College of Law in Ontario California where he teaches Constitutional Law.

Professor Doskow, welcome and thank you for joining us.

CD:

Well, I'm pleased to be here.

SO:

Let's jump right in. How important is Judge Walker's decision?

CD:

Judge Walker's decision is absolutely critical because it basically reaffirms the supremacy of the Constitution over any law that's enacted whether it's enacted by the legislature or the people, and it represents a substantive finding that the prohibition on same-sex marriage is unconstitutional.

SO:

Many Californians are angered by the decision. A common complaint is that the judge is legislating from the bench, that he violated the right of the people to create new law through the electoral process. What would you say to these voter's, and what was the basis for the decision?

CD:

Well, when they talk about legislating from the bench – what judges do is decide cases. They are performing a judicial function, and they decide cases, and a law, it does not matter whether a law is adopted by the legislature or the people, it still must pass the test of constitutionality. The fact that it's adopted by even an overwhelming majority, which this was not, of the people does not insulate it from being considered for constitutionality.

We've had this happen in the past. The courts ruled in the 90s that the initiative on the rights of undocumented citizens was unconstitutional. We go back to the 60s. People passed a rule banning fair housing laws. That was found to be unconstitutional.

There's never been a question, but that laws, that, whether they're adopted by initiative or they're adopted by the legislature, have to pass the test of constitutionality, and they have to be weighed against the provisions of the Constitution – in this case the due-process and equal-protection clauses.

SO:

So, in your opinion, was the judge correct in finding that there was no rational basis for denying marriage licenses to same-sex couples?

CD:

Well, the judge ruled on that rational basis, and I've seen that debated a couple of times, as to whether you can say that there is no rational basis for it, but clearly if it had gone to strict scrutiny, the judge would have found that it violated a fundamental right and it did not meet the standard of a compelling interest to limit that right -- ok, and in a sense that's really an academic debate.

He so ruled that the conclusion can be supported, and, even though some of the people who are most strongly supportive of his decision say that rational basis was the wrong way to go, he found that there is no rational basis in someone's feeling that, "oh that marriage threatens my marriage."

That's really the basic argument. That's really the core of what's being decided today: whether these individuals who are supporting Prop 8 have any interest that the law should recognize.

SO:

I see. Now, you mentioned something about strict scrutiny (These are what lawyers call terms of art), and it has to do with the standard of evaluating the merits of a case, as I understand it. Can you explain a little bit more about that?

CD:

Yes, the court has kind of three levels of looking at laws that effect rights: strict scrutiny and intermediate scrutiny, and rational basis.

Rational basis simply says, oh we'll sustain a law if there's any rational basis to sustain it, so a finding that a law is unconstitutional on that basis, says that, well, no one could have really found that to be a rational way to act.

Strict scrutiny says if a right is fundamental, in order for a law to limit it or to eliminate it, the state must have a compelling interest, and it must be using the most narrow means of protecting that interest.

Well, the judge is not finding any interest in the state here, in banning gay marriage. He's basically saying that there is no interest of the state that's being served by limiting this right.

SO:

I see. So, what are the likely steps next in this lawsuit? Yesterday we say that the judge, correct me if I'm using the wrong language here, provided a temporary stay until August 18th, allowing the Ninth Circuit Court to have its say.

CD:

Right. Of course another question is whether the state can resume marriages immediately, and, part of the issue -- which he is addressing in this most recent opinion -- is would there really be uncertainty if we all same-sex marriage to resume now.

He is in sense saying no, but the legal question that he's raising is whether the proponents of Prop 8, who've been defending this lawsuit have standing to appeal. And that is a rule that basically comes out of the Constitution which says that courts only decide cases and controversies. And cases and controversies require bringing a suit to have standing.

And standing requires three things, the most important of which is injury in fact, and that's a way of saying that you can't sue just because everybody is affected by something. You have to show some personal basis on which you are aggrieved by a decision or by what a defendant has done. Now, at the trial level, they allowed the proponents to intervene. The state was not defending the law, but they allowed them to intervene on the basis that no one else was doing so, and the state was a nominal defendant, so they weren't the only defendant.

Now though, they would be the proponents of an appeal, and the question is whether they have standing to appeal, and the judge's three-page opinion analyzes that and says they don't. The basis for saying they don't is really what came out in his opinion that they are not aggrieved, and that goes down to the basic argument: is someone who has a heterosexual marriage affected by allowing homosexual marriage – by gay marriage, and that's what really lies at the core of Prop 8, isn't it?

SO:

You're touching on something that I have read about, which was the issue of the intervening parties. Imperial County had tried to intervene as a defendant and was denied that, in part because they had filed their petition after a deadline. Can you speak to that a little more?

CD:

Well, the only important thing at the trial level was that someone was representing the other side. Because if no one defends a case then it goes by default, and the governor had said that he wasn't going to defend it. The attorney general had said that he wasn't going to defend it, so the judge allowed the interveners, the proponents of the initiative, to intervene because no one else was doing it and because there were other nominal defendants at least. There was no reason, though, to allow anybody else to intervene particularly because the other side was being represented.

SO:

Now, if this stands, do you see this decision having an effect outside California?

CD:

Only as an influence it seems to me.

SO:

Because a federal court ruled on Proposition 8, a California ballot initiative, it doesn't necessarily affect other states?

CD:

Well, a district court ruling on a California issue – right, because the issue is whether the California initiative is valid – would be law only in California. If the Ninth Circuit makes a ruling, that would be the law of the Ninth circuit.

SO:

One of the other common complaints is that the judge is biased because of his own sexual orientation. Does the fact that the judge is gay have any effect of his decision do you think?

CD:

Well I think every judge is influenced by who he is and what he does, but the same argument would say can an African-American judge not hear a race discrimination case? Can a woman not hear a gender discrimination case? I mean, it just doesn't make any real sense.

Who would you have – a judge who is married and has a heterosexual marriage? Has he got no interest? The proponents claim that judge would have an interest.

This is going to be debated, but this really goes to the heart of our court system, and do we trust our judges to make determinations on the law?

I mean the judge's decision is based on law and precedent – and his view and law and precedent, and I think it's a specious argument at this point.

SO:

Currently nothing is certain, for sure. It's before the Ninth Circuit Court, and in all likelihood will be going to the United States Supreme Court. There are a number of commentators that have said that the judge's decision was written specifically for Justice Kennedy, and that he had in fact modeled his logic, reasoning and writing in many ways as though her were addressing, I think the quote I had read was, a court of one. What do you think the upper courts are likely to do?

CD:

I really don't know. I saw speculation this morning on one of the blogs, that one of the questions is what panel of the Ninth Circuit three judges gets it.

It's already been there once, don't forget, and the three judges on that panel are all Clinton people and basically supported the opponents of Prop 8, or supported the judge essentially when he wanted to open the hearing in different court houses, if you recall. That's been to the Supreme Court once, and the Supreme Court reversed that.

It seems pretty likely that his panel, just guessing, that if that panel gets it, and that's only a matter of protocol in the Ninth Circuit, that they would probably support what the judge did.

Then it would go to the Supreme Court, and the Supreme Court would first decide whether there is standing, and they've been very tough on standing in different cases, but let me just give you one thing from history, which might cast some light on this. In 1967, the Supreme Court ruled in Loving that laws banning marriage between the races were unconstitutional, miscegenation laws.

They had the same case come up ten years before, in 1956. They wouldn't hear it then, and why wouldn't they hear it then? Well, they wouldn't hear it then because they had just decided Brown v Board of Education, and they didn't want to start another war on a Supreme Court decision right after that one.

It was also early. There was a lot of state legislation going on to the same effect of repealing those laws. Maybe the Supreme Court would say this is a debate that's going on. It's generating. It's moving. Let's not decide this right now. That's possible that that could be their decision.

SO:

Well Professor Doskow, thank you very much for your insight and analysis. Professor Doskow is Dean Emeritus and Professor of Law at University of Laverne College of Law where he teaches constitutional law.

CD:

Thank you for having me.

For providing content for this content and working to build a better community, we thank

Professor Charles S. Doskow

For more about him, view his bio at the University of La Verne College of Law:

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