Constitutional Confusion in California

Yesterday's ruling by the California Supreme Court in Strauss v. Horton and related cases, was about as narrow a victory for the proponents of Proposition 8 that the Court could have rendered. Although the Court upheld the validity of Proposition 8, which amends the State Constitution to read that only marriage between a man and a woman is valid or recognized in California, the Court at the same time recognized the validity of the thousands of same sex marriages performed in California between the time of the Court's decision last year finding a constitutional right to marry regardless of sexual orientation, and the voters' amendment of the Constitution last November preventing the state from recognizing a marriage between same sex couples.

More importantly, the Court decided that Prop. 8 cannot affect anybody's substantive rights at all. Therefore, all Prop. 8 did was to deny the state the power to call a same sex union a marriage (except for the thousands of same sex couples who took advantage of the Supreme Court's ruling last year). For the future, the Court held that "same-sex couples continue to enjoy the same substantive core benefits afforded by those state constitutional rights as those enjoyed by opposite-sex couples--including the constitutional right to enter into an officially recognized and protected family relationship with the person of one's choice and to raise children in that family if the couple so chooses--with the sole, albeit significant, exception that the designation of 'marriage' is, by virtue of the new state constitutional provision, now reserved for opposite-sex couples." (slip opinion at p. 92)

It is ironic that in order to save Proposition 8, the Court had to render it almost meaningless. On the other hand, if the Court had held that Proposition 8 had the fundamental effects that its opponents claimed that it had, the Court might have had to overturn Proposition 8 as an invalid attempt to revise, as opposed to amend, the Constitution.

This result is certain to cause confusion, because the law will continue to recognize the marriages of gay couples who were married last year, while gay couples who obtain civil unions this year are entitled to all of the substantive rights of married couples, except that the state cannot say that they are married. Proposition 8 is still the law in California, but all it means is that only opposite-sex couples are entitled to the designation "marriage." Same-sex couples will have to search for another name to describe a relationship that they believe is just as sweet.

Photo from amgmedia.com

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Moving Further Away from Notice Pleading

On Monday, the US Supreme Court made clear in Ashcroft v. Iqbal (No. 07-1015) that its new formulation of pleading standards in the Twombley case, has broad application. Arguably, the Court raised the pleading bar even higher, as the Court's opinion could be read to encourage examination of the surface plausibility of the factual allegations of the complaint, and to allow courts to reject complaints if these factual allegations are deemed too "conclusory."



The case involved civil rights claims against the Attorney General, the FBI director, and others, on behalf of a Pakistani citizen who was arrested in the United States in the wake of the September 11 attacks. Plaintiff alleged that these high-ranking officials were the "principal architect" of and "instrumental" in carrying out a policy of harsh confinement of individuals based on their ethnicity, religion or national origin. These allegations were held too conclusory to meet Twombley's "plausibility" standard. Further, the Court held that the complaint failed sufficiently to allege that the defendants had adopted a policy of separately classifying persons of high interest based on their ethnicity or religion. The Court made clear that it was not rejecting the plaintiff's allegations as unrealistic or nonsensical, only that they were too conclusory. The court justified this result based on its supposition that a legitimate dragnet could have a disparate impact on Muslims or Arabs that would not necessarily have resulted from intentional discrimination.

Perhaps the heightened level of scrutiny given to Iqbal's complaint could be explained by judicial deference to the government's law enforcement efforts in the wake of the September 11 attacks. Perhaps it merely signals that the era of indulgence given to civil rights claims dating back to the 1950's and 1960's is over. Whatever the reason, the Court's striking down of this complaint will certainly inspire even more defendants to file even more motions to dismiss all kinds of complaints for failure to state a claim.

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Class Actions

Today the California Supreme Court made it easier to certify class actions in unfair business practices cases. In the so-called Tobacco II cases (S147345), the Court reversed a lower court order de-certifying a class action in the wake of Proposition 64, the law that modified California's unfair business practices statute (Business & Professions Code Section 17200 et seq.) to require that the persons bringing such claims have actually been injured themselves by the alleged unfair practices. The main issue before the Supreme Court was whether all class members must comply with Proposition 64's standing requirements, or only the class representatives. Specifically, the question was whether each smoker who is eligible to remain as a member of the class must demonstrate reliance on the tobacco companies' alleged unfair practices.

The case relied on interpretation of Proposition 64 itself, holding that the initiative was only intended to limit the persons who can bring an unfair business practices claim, not to change the nature or type of relief available. Therefore, the Court held the amended statute does not preclude a class action on behalf of other persons who might not themselves be able to demonstrate compliance with the new standing requirements. So if the class of smokers who had been exposed to defendants' advertising and marketing practices was validly certified in the first place, that certification did not become invalid merely by virtue of the passage of Proposition 64.

How this decision affects the definition and certifiability of class actions in other contexts, and even in other unfair business practices cases, will probably remain a subject of continued debate. The extent to which the members of a putative class must have similar interests to one another and to the interests of the class representatives, and the extent to which a class action is a manageable way of dealing with all of the different interests of class members, must still be addressed on a case-by-case basis.

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De-Politicizing the Supreme Court

Before everyone on both sides of the political fence starts gearing up for potential fights over judicial appointments, it might be useful to remember that the political stakes are really not as high as people might think. I'd like to make a pitch that the political line-up of the Court is almost always less important than the intellectual and moral caliber of the individual justices, but to prove that, I first have to give a run-down on the political composition of the current Supreme Court, just to show that it is not going to change that much no matter whom President Obama appoints to fill the upcoming vacancy created by Justice Souter's announced retirement.



The current Supreme Court must be seen as a fairly conservative bunch, though less conservative than the most ardent conservatives would wish. It consists of seven Republicans and two Democrats, although this is a bit misleading, since two of the Republicans, Stevens and Souter, have always been fairly moderate and are generally lumped together with the two Democrats to comprise the "liberal wing" of the Court. There are four fairly consistent conservatives, and one Justice, Anthony Kennedy, who sometimes sides with the liberals. President Obama may have the opportunity to appoint as many as three Supreme Court justices in the next several years, but the justices who are most likely to be replaced in addition to Souter, namely Stevens and Ginsburg, are all members of the "liberal" wing. Even if Obama appoints a flaming, card-carrying radical liberal to replace one or more of these fairly liberal justices, he cannot change the ideological balance of the Court very dramatically, although having a justice more in the spirit of Douglas or Marshall or Brennan might pull the entire Court a bit to the left. The only opportunity for President Obama to change the political balance of the Supreme Court significantly would occur if either Kennedy, or one of the four reliably conservative justices (Scalia, Thomas, Roberts, Alito) were to retire.

So in the meantime, it would be a refreshing change if people were to focus more on the achievements, abilities, and the character of the appointee for the Souter seat, than on his or her political inclinations or such superficial characteristics as ethnicity or gender.

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