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This page contains a single entry from the blog posted on March 21, 2004 3:43 AM. The previous post in this blog was Day 4. The next post in this blog is Being for the benefit of Mr. Kerry. Many more can be found on the main index page or by looking through the archives.

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Sunday, March 21, 2004

Refuge in abstractions

When I was a newspaper reporter many years ago, the word around the City Room was, "Nobody reads the paper on Saturday." Yet the Saturday New York Times is sometimes, surprisingly, one of its best efforts of the week. Yesterday's op-ed page contained four worthy pieces, including a very insightful commentary by UCLA Law Professor William Rubenstein on gay marriage, which as most readers here know is Portland's all-consuming controversy du jour.

Politicians, Rubenstein notes, "have avoided the main issue and sought refuge in the abstractions of the Constitution. Instead of asking what kind of society we want, they argue about what our structure of government can permit." The Bushites prefer to couch the debate in terms of "judicial activism," while the Democrats talk of "states' rights." The Republican position "turns the debate over gay marriage into an arid discussion about the 'separation of powers,' a concept enshrined in the Constitution." Meanwhile, Rubenstein criticizes Kerry & Crew's states' rights emphasis on the same grounds: "This is how slavery was debated for America's first 100 years, and the rights of African-Americans and women were discussed in these terms for the next hundred."

It's a very thought-provoking piece.

Here in Portlandia, proponents and opponents of gay marriage (including the state attorney general's office, which appears to be taking both sides of the issue) have been busy this week setting up a test case that they hope will result in a quick decision by the Oregon Supreme Court. Apparently, the ACLU will sue the state on behalf of a gay couple for refusing to recognize a gay wedding performed under a Multnomah County license. The trial court proceedings will be expedited to focus on the constitutionality of the state's hetero-only marriage statute, and the parties have agreed to seek to bypass the Court of Appeals and go straight to the State Supreme Court.

Unless some new opponent of gay marriage somehow derails this train, the debate in the Oregon court proceeding will be devoid of the structural issues at which Rubenstein takes offense. It will be the state constitution, not the federal one, involved, and so the separation of powers issue will be absent. And one doubts that much will be heard about judicial activism, at least inside the courtrooms.

Also missing from the test case will be the procedural and structural issues swirling around the county commissioners' actions in licensing gay marriage. With the plaintiff being someone with no grievance against the county, and the challenge being strictly to the acts of the state legislature, we'll probably never learn whether the commissioners violated open meeting rules. Also likely to be rendered moot will be the question whether the county has the power under Article VI of the state constitution to ignore a state statute based on county officials' own view that the statute violates newly emerging constitutional rights. The "defense of marriage" folks point out that the test case agreement preserves their rights to make these arguments, but I suspect that once the main Oregon constitutional question is resolved, courts will find a way to dismiss these claims on the ground that they no longer make a difference.

To the lawyer in me, constructing a fully stipulated case to avoid these issues is a shame. Courts have always tended to avoid the most momentous constitutional rulings when there were other ways to dispose of a case. Given the way the parties have concocted the test case, however, the side issues appears to have been cleared away. Rubenstein would doubtlessly approve.

There could still be some surprises along the way, of course. There are other court proceedings already filed, and some of the litigants and judges in the other cases may not see fit to sit idly by while the official test case moves along.

And it may proceed more slowly than its sponsors want. Judges in Oregon are elected every six years, and probably as a result of that, they move very carefully and give each other as much support as possible. (For example, three State Supreme Court justices, including the only openly gay one, are running for re-election now, although at first glance there doesn't seem to be much of an opponent for any of them; one is completely unopposed.) Therefore, it's not clear to me that the Oregon Supreme Court will agree to bypass the normal appeals route. The case could still wind up going through an intermediate appeal.

Moreover, whenever the Supreme Court takes the case, it may not agree to the wham-bam schedule that the parties prefer. It is entirely possible that no final decision will be reached in the litigation until next year.

By that time, there may be an initiative on the ballot in Oregon settling the state constitutional issue. Whereas it usually takes years to amend the U.S. Constitution, the Oregon Constitution can be amended in a matter of months. Depending on the wording of the ballot measure, the issue in the test case could be rendered moot. Which would be all the greater political reason for the Supreme Court to move at its normal, slow pace.

If an Oregon ballot measure amended the state constitution to define marriage as one man-one woman (or in the unlikely event that the Oregon courts declared the existing statutory ban on gay marriage constitutional), the litigation would shift to federal court, where Oregon law would be tested against the federal constitution. By that time, we'd have a new President, or the same old one we have now, and likely a couple of new justices on the U.S. Supreme Court. Those new justices could very well be the swing votes who decide where all this finally winds up.

As I've said, however this comes out, the big winners will be the lawyers.

Comments (4)

I'm sorry, but I didn't find Professor Rubenstein's article particularly insightful. Whether you agree with him or not, President Bush's position on gay marriages is pretty clear--he's against them and he wants to ban them. Furthermore, he thinks the public agrees with him and that their elected legislative representatives would follow the wishes of their constitutuents if given the chance.

Where "judicial activism" comes in is that some courts are end-running the legislative process by imposing gay marriage (as in Massachusetts) or its equivalent in the form of civil unions by the threat of imposing gay marriage in the alternative (as in Vermont).

It is true, as Professor Rubinstein points out, that the mayor of San Francisco is not a judge (nor is Commissioner Linn, for that matter), but these executive officers are only moving forward on gay marriage because they believe the courts will back them up. And in fact, unless the courts back them up, what they are doing is fruitless (okay, bad choice of words).

What Professor Rubinstein is saying is that the debate should be over the substantive issue of gay marriage, i.e., whether we as a society think they should be recognized or not. I think it's hard to argue that President Bush hasn't made his position on this issue pretty clear.

And to be fair, Senator Kerry and most of the other Democrats recently running for president (Kucinich and Sharpton being the exceptions) also made their positions clear: they oppose gay marriage, but would support civil unions. In fact, based on President Bush's most recent comments, it sounds like he's willing to accept civil unions as well (as is Senator Gordon Smith).

So if there seems to be a broad consensus growing throughout the country toward allowing civil unions but not gay marriage, why the big furor? It's because some judges are interpreting the law in a way that is contrary to this popular consensus and some activists hope to get the issue into the courts where they think their chances of prevailing are better than in Congress or the legislatures.

This is the American way. For at least half a century, our courts have been activists on civil rights (and other) issues. Some people like it, some people don't. Usually, people like it when the courts are activists on their side, and they don't like it when they are activists against them.

So for this you get a column in the New York Times?

Also missing from the test case will be the procedural and structural issues swirling around the county commissioners' actions in licensing gay marriage. With the plaintiff being someone with no grievance against the county, and the challenge being strictly to the acts of the state legislature, we'll probably never learn whether the commissioners violated open meeting rules. Also likely to be rendered moot will be the question whether the county has the power under Article VI of the state constitution to ignore a state statute based on county officials' own view that the statute violates newly emerging constitutional rights.

I'm wondering if the first part of this likely is truer than the second. I can see the new "case management agreement" ending up killing off the court-based portion of the process debate, but wouldn't the "did the County have the right to ignore the statute" part still be relevant?

Parenthetically, although I am a proponent of the argument that the County's action was both legally and politically sounds from the process standpoint, I also will find it to be disappointing if a a court doesn't look at the issue one way or the other. A resolution one way or the other in the courts would probably tend to quiet the debate except on the extremes. Without a court argument over the process part, we'll just be left with the heat of the recall drives.

I have nothing to add. :)

The remedy in Oregon would simply be to invalidate the marriage statute. The judge(s) will not read into the statute something that is not there. Validly issued same sex marriages will not be issued before the legislature reconvenes -- with or without any judicial resolution. We could of course dispense with the need for any legislation at all in favor of fleeting political interpretations of the meaning of constitutional provisions.

Standing is a judicial construct to assure advocacy. This Slow Pitch Softball Match ("fully stipulated case") should rile even the most skeptical judge. (We could just start referring to them as them as Sock Puppets to make the point.)

Does anyone remember the secret meetings that preceded the last legislative session? It too resulted in a Slow Pitch Softball Match. Could it be argued (politically) that Diane Linn was just following the example set by the 2003 legislature?


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