As we get closer to the end of the June and the Supreme Court’s decision on Congress’ power to force you to buy health insurance, we will see more attention focused on how the Supreme Court ought to interpret the Constitution. Here is a great example from Tim Sandefur over at Pacific Legal Foundation.
Blogging has been nonexistent the past few years — I have accepted a teaching position at Chapman University School of Law, leading the Constitutional Jurisprudence Clinic. Through the clinic I have been very active in filing briefs at the United States Supreme Court working to convince the Court that it should use the original public meaning of the Constitution as its interpretative guide. As I have time, I will update the blog with notes about the cases and about the Center for Constitutional Jurisprudence — the nonprofit that sponsors the clinic.
By a 4-3 vote the California Supreme Court has struck down that state statute that limits marriage to opposite sex couples.
The combined opinions run about 200 pages, so it will take a while to digest. But the decision is based on the state constitution, and the court rules that sexual orientation is a suspect classification under the state’s equal protection guaranty.
State equal protection jurisprudence will differ from federal when the states take into account the difference in text. The state charters, when originally adopted, did not contain an express “equal protection” clause (note – the California Constitution was amended to add such a clause). Instead, the state constitutions prohibited “special laws” or, more commonly, prohibited the enactment of legislation granting “privileges or immunities” not available to all citizens equally.
Examples of state court decisions involving a privileges or immunities clause on the gay marriage issue include:
Morrison v. Sadler, 821 N.E. 2d 15 (2005) — Indiana Court of Appeals decision upholding state’s Defense of Marriage Act against a “equal privileges or immunities challenge.” Standard of review grants substantial deference to legislative classification and does not apply differing levels of scrutiny.
Standhardt v. Superior Court, 77 P.3d 451 (2004) — Arizona Court of Appeals decision upholding state statute against “privileges or immunities” challenge. The court treated the privileges or immunities clause in the state constitution as merely a state counterpart to the Equal Protection Clause of the 14th Amendment.
Andersen v. King County, 138 P.3d 963 (2006) — Fractured decision of Washington Supreme Court upholding state’s Defense of Marriage Act against a privileges or immunities challenge. The court notes a two-tiered analysis — a higher scrutiny if the “law is a grant of positive favoritism to a minority class.” In all other cases, the court applies a standard federal equal protection analysis.
In Goodridge v. Department of Public Health, 798 N.E.2d 941 (2003), the Supreme Judicial Court of Massachusetts ruled that the ban on same-sex marriages did not survive rational relationship review under the state constitution’s equal protection guarantee.
Unlike the Vermont decision, there is no historical analysis of the constitution — instead, the court relies on a common law approach of building on prior decisions that tested legislation against the equal protection guaranty. The Massachusetts equal protection guaranty was adopted as an “equal rights amendment” and is very specific, identifying the protected classes:
Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.
The majority opinion, however, did not rely explicitly on this clause. Instead, it ruled:
The individual liberty and equality safeguards of the Massachusetts Constitution protect both “freedom from”unwarranted government intrusion into protected spheres of life and “freedom to” partake in benefits created by the State for the common good.
The first real break-through case for those arguing in favor of same-sex marriage was Baker v. State, 744 A.2d 864 (1999). There, the Vermont Supreme Court decided that the “common benefits” clause of the Vermont Constitution required the state to offer same sex couples the same “statutory benefits, protections, and security” available to married couples. The court did not require the state to actually grant marriage licenses, however.
The point of interest in this case is the historical analysis of the “common benefits” clause. The court notes that it was not intended to serve the same purpose as the Equal Protection Clause of the Fourteenth Amendment, and thus required a different analysis.
The Common Benefits Clause of the Vermont Constitution provides:
That government is, or ought to be, instituted for the common benefit, protection, security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community.
This provision dates from the original 1777 state constitution and stands as an obvious statement against monarchy and class privilege. From this provision, the court derives a principal of inclusion and that statutory classifications that exclude groups from public benefits “must be ‘premsied on an appropriate and overriding public interest.'” Id. at 873
For those wanting to compare the analysis in the forthcoming California Supreme Court decision with the approach taken by other state high courts, the following are some of the decisions from those courts on this issue:
Baker v. Nelson, 191 NW 2d 185 (1971) — The Minnesota Supreme Court rejected a federal constitutional challenge to the state law that did not authorize marriage between same-sex couples.
Baehr v. Lewin, 852 P.2d 44 (1993) — The Hawai’i Supreme Court that although same-sex marriage was not a “fundamental right” under the Hawai’i Constitution, a statute that precluded same-sex marriage was a classification based on sex that warranted strict scrutiny.
Dean v. District of Columbia, 653 A.2d 307 (1995) — The District of Columbia Court of Appeals rejected a federal constitutional challenge to statute prohibiting the issuance of marriage licenses to same-sex couples.
The California Supreme Court has announced that it will issue its decision in In re Marriage Casesat 10:00 am on Thursday, May 15, 2008. Whatever the ultimate result in the case, this should prove to be a significant addition to the state’s jurisprudence on that Equal Protection guaranty in the California Constitution.
As soon as the decision is announced, I will post comments on the decision with an eye toward what it might mean for future Equal Protection challenges in different contexts (I will leave the social commentary to others). In the meantime, I will post information on how other states have ruled on the same issue.
The California Supreme Court issued its decision in Ross v. RagingWire this morning holding that while medical marijuana use may be lawful under state law, that law does not prohibit employers from terminating employees based on that use:
We conclude that the lower courts were correct: Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees. Under California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions. We thus affirm.
Ross was fired from his position as a systems administrator after his preemployment drug test revealed the presence of THC (the chemical in marijuana). Ross had given the drug testing company his doctor’s certification that the marijuana was used to treat chronic back pain, and he had supplied the employer with the same information. Nonetheless, the company terminated his employment based on their policy prohibiting illegal drug use.
Ross sued, arguing that the termination violated the employer’s duty of reasonable accomodation for his disability under the state Fair Employment and Housing Act and further that the termination was a violation of public policy.
The majority noted that although California voters had the power to change California law regarding possession and use of marijuana, they had no power to change federal law. Thus, the drug remains illegal under federal law. The question, then, was whether the employer was required to waive its policy against the use of illegal drugs in order to accommodate Ross’ disability.
The court rejected that argument. The majority noted that the Compassionate Use Act did not purport to speak to the duties of employers, nor did it “eliminate marijuana’s potential for abuse or an employer’s legitimate interest in whether an employee uses the drug.”
Of note, the majority quoted from the United States Supreme Court decision in Gonzales v. Raich, 545 U.S. 1 (2005), noting the federal policy of criminalizing the use of marijuana based on its “high potential for abuse” and the lack of “accepted medical use.” The state law obviously stands in opposition to this federal policy. The majority noted, however, that while voters are free to disagree with Congress on this issue, the fact that they did so does not compel the conclusion that they also intended to require employers to accommodate use of a drug that is illegal under federal law.
The court also rejected the argument that the dismissal here constitutes “wrongful termination in violation of public policy” (an exception to California’s general rule of employment at will). Again, the court declined to find a public policy related to employment in the Compassionate Use Act.
The dissent argued that the majority “disrespects the will of California’s voters” in failing to protect an employee’s off-duty use of marijuana pursuant to a doctor’s recommendation. The dissent would find a violation of the California Fair Employment and Housing Act unless the employer could demonstrate that the off-duty use would impair the employer’s operations. The dissent would not, however, find a wrongful discharge in violation of public policy. The fact that marijuana use remains illegal under federal law is sufficient to take it outside of the public policy that would support such a tort cause of action.
The interesting aspect of this case is the apparent fine line the court walked when interpreting an initiative measure that conflicted with federal law. The initiative had the power to affect state law, but that left a contrary federal law in place. The problem that the court had to deal with here was how all of that affected other state laws. Did the fact that voters permitted the use of marijuana for “medical purposes” have an impact on state laws requiring reasonable accommodation for medical conditions? Further, does an employer have the right to create company policy based on federal law – even when there is a conflict between federal and state law?
The majority dealt with these questions by a close reading of the initiative. The court was not willing to infer a voter intent in this area beyond the terms of the initiative, especially where there was no explicit evidence that voters intended the measure to alter employment law.
(Bumped — note the comment from the attorney for the petitioner inviting amicus participation)
Tackling the ever more difficult question of when a lawsuit “arises out of” protected activity, the Fourth District Court of Appeal ruled Friday that Riverside’s pre-election challenge to an initiative restricting the city’s power of eminent domain was not subject to special motion to strike under Code of Civil Procedure §425.16.
The proponent of the initiative (and defendant in the city’s suit) argued that filing an initiative with the city is protected activity under the First Amendment — that the right of petition was not completed until after the election. The Court of Appeal disagreed, however.
“[A] court, in determining whether the anti-SLAPP statute applies, looks at whether a lawsuit arises out of protected activity, rather than a more fundamental dispute. Above all, as we have already said, what matters is the basisfor the lawsuit; that the City filed its declaratory relief action [seeking a ruling that the initiative was invalid and could not be placed on the ballot] on the heels of the submission of the initiative is not dispositive.”
This may prove to be a difficult standard to apply in practice. The first prong of a special motion to strike is a showing that the action “arises out of” protected activity. If that is established, the burden shifts to the plaintiff to show likelihood of success on the merits. In this case, there is no question that drafting an initiative and collecting enough signatures to place the measure on the ballot are “protected activities” for the purpose of the Anti-SLAPP law. It also seems not subject to dispute that the cost of defending a lawsuit (in absence of pro bono assistance) is a costly matter — and the city could use the lawsuit as a means of precluding a vote and deterring future initiatives. The distinction that court draws in this case, without resorting to an attempt to ferret out the subjective intent of the plaintiff, is to note that the suit arises not out of the First Amendment activities of drafting and qualifying an initiative, but rather the substantive legality of the initiative.
That analysis, however, seems to invite a blurring a distinction of the first and second steps of the section 425.16 analysis. After all, one could argue that in many anti-SLAAP actions that the suit is really about the substantive illegality that forms the basis of the cause of action rather than the exercise of speech rights. This is an area where further direction from the Legislature and the Supreme Court is necessary.
Two other points about this decision merit mention. First, the initiative at issue apparently failed to qualify for the ballot and the court decided that the appeal was technically moot. The court’s reasoning, stated in its order to the parties to brief the mootness question, was put this way: The initiative failed to complete the process necessary for placement on the ballot. Thus, validity of the initiative is no longer viable, which means the complaint is moot, in turn rendering moot the granting of the special motion to strike and this appeal.”
Does this mean that a plaintiff can escape liability for attorney fees on an anti-SLAAP motion if the action subsequently becomes moot? Hasn’t the defendant already suffered the harm that the Legislature attempted to remedy with the fee award?
The second point is that the court noted that on remand, that “inasmuch as the City is now the prevailing party, upon motion in the trial court and a showing that respondents’ motion was ‘frivolous or [was] solely intended to cause unnecessary delay’ … the City may be entitle to attorney’s fees.”
I have wondered how one could show a motion to be “frivolous” if the trial court had initially granted the motion. If you have convinced a court that the motion is legally correct, does that establish the motion was not frivolous as a matter of law?