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State Supreme Court reinforces basic freedoms

By J. Clark Kelso


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This was a big year for the California Supreme Court, perhaps its biggest year this decade. It would be impossible to overstate the importance of the Court’s decision in In re Marriage Cases (2008) 43 Cal.4th 757, where the Court struck down California statutes that limited marriage to a union “between a man and a woman.” The case is important not only because of its result and its political significance, but also because of the subsidiary legal holdings leading to the result and the style of reasoning employed in the decision.

We see in In re Marriage Cases, and in a number of other decisions this term, a supremely confident, independent high court that is not afraid to go its own way on major issues of law. “Freedom” has been a recurrent theme this year, and in each of the cases reviewed below, the California Supreme Court is out ahead of nearly all other jurisdictions in asserting some basic freedom of action and behavior.

Freedom to marry

The people of California, along with the rest of the nation, waited a long time for the decision in In re Marriage Cases (2008) 43 Cal.4th 757, where the Court held a person in California is free to marry another person of the same gender. Recall that the court first inched towards this issue four years ago in Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055. Lockyer arose in response to the governmental civil disobedience that gripped the City and County of San Francisco when Mayor Gavin Newsom triggered changes in the marriage license issued by the county clerk to make those licenses gender-neutral and, therefore, available to same-sex couples.

The court’s reaction in Lockyer was utterly predictable. State law clearly provided that “marriage is a personal relation arising out of a civil contract between a man and a woman” (Family Code Section 300). Other statutes require issuance of a license before persons enter into a marriage and set forth in detail the contents of that license. The duties of local officials under these statutes are ministerial. The only justification offered by the city for ignoring these statutory requirements was its contention that these statutes were unconstitutional and that the county clerk had the authority to make that determination and alter the license application form to make it constitutional.

The issue in Lockyer was not the constitutionality of the underlying statutes. Instead, the issue was whether a local official who has been charged with performing a ministerial duty pursuant to a state statute may disregard that duty because the official believes the provision is unconstitutional, notwithstanding the absence of a judicial determination that the statute is unconstitutional. In short, can the county clerk declare a statute to be unconstitutional and act upon that declaration?

In a lengthy and comprehensive opinion, with clear connections to separation of powers doctrines, the court essentially held that county clerks have not been granted the judicial power to pass upon the constitutionality of statutes that impose upon the county clerk ministerial duties. If the county clerk thought the statute was unconstitutional, the county clerk should have brought the issue to court in the ordinary course of business. Governmental civil disobedience was not to be countenanced.

Fast forward four short years, and we now know that the county clerk had been correct all along — the statutes limiting marriage to a union between a man and a woman were, in fact, unconstitutional.

Unlike Lockyer, the decision in In re Marriage Cases was a close call for the Court (4-3), and court-watchers were generally unable to predict which way the Court might go. In the end, it was Chief Justice George’s vote that made the difference, and the Chief wrote the majority opinion for himself and three others, Justices Kennard, Werdegar and Moreno. Justice Baxter dissented with Justice Chin, and Justice Corrigan filed a separate dissent. Virtually every major issue was a matter of first impression, and the Court’s ultimate conclusion is contrary to the great weight of authority from other jurisdictions. It was a steep climb uphill.

Ronald George

There were two primary legal bases for the Court’s conclusion. First, the Court examined whether the “right to marry,” a right generally recognized as a fundamental constitutional right, protected a person’s right to marry someone of the same gender. The key step in the analysis here was the Court’s decision to define and characterize “marriage” as “the right of an individual to establish a legally recognized family with the person of one’s choice.” 43 Cal.4th at 814-15. Note that this definition says nothing about the gender or sexual orientation of the family members, thereby liberating the Court from being tied to the traditional notions of what constitutes a marriage.

With this liberating definition in hand, the Court could explore whether there was any legitimate State interest in limiting a person’s power to establish a legally recognized family with someone of the same gender. Given that the State had already expanded the concept of same-sex unions so that it provided all of the same legal rights and obligations as an opposite-sex marriage, there did not seem to be any basis for placing a same-gender limitation on the right to marry.

Second, the Court examined whether the equal protection clause was violated by treating opposite-sex unions differently than same-sex unions — that is, by recognizing opposite-sex unions as official marriages, but treating same-sex unions as only same-sex unions. The Court’s holding here is even more far-reaching than its analysis of the “right to marry” issue. In a matter of first impression, the majority concluded that sexual orientation is a “suspect classification” and that statutes that classify on the basis of sexual orientation would be subject to “strict scrutiny” analysis (i.e., the classification would be upheld only if the State could demonstrate a compelling justification for the disparate treatment and that the statute is necessary to further that compelling interest). The State was unable to establish any compelling justification for denying same-sex couples official recognition as married couples.

Although the majority’s decision was technically framed as involving the proper constitutional interpretation of the “right to marry” and the equal protection clauses, there is no question but that the majority opinion was most heavily influenced by statutory changes in California. The Court recounted the step-by-step expansions in legal recognition of same-sex unions in California. Those expansions ultimately led to a legal environment where both opposite-sex and same-sex couples were granted all of the same rights, privileges and obligations traditionally associated with the institution of marriage, but only opposite-sex couples were allowed to claim the official designation of “marriage.”

Given this background, the majority opinion essentially is a grand application of the time-honored “Duck Principle” (i.e., “If it looks like a duck, sounds like a duck, and swims like a duck, it probably is a duck.”). Or, as the Court explained in more formal prose, “assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of ‘marriage’ exclusively for opposite-sex couples poses . . . a serious risk of denying the family relationship of same-sex couples . . . equal dignity and respect.” 43 Cal.4th at 783.

Marvin Baxter

Justice Baxter penned a strong dissent for himself and Justice Chin. The major thrust of his dissent was that the majority had violated Separation of Powers by arrogating to itself the power to make a significant legislative policy judgment absent any clear constitutional directive. After noting that there had been significant expansions in the recognition of same-sex unions in California by statute, Justice Baxter argued, “If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority.” 43 Cal.4th at 861.

There is no doubt that the majority decision pushed the ball down the field a little further than the California Constitution necessarily required. But that, after all, is what leadership is all about. That is what differentiates a great court — a court that is a full participant with the other branches of government and with the people in developing more mature understandings and interpretations of constitutional provisions — from other courts.

And in any event, Justice Baxter is only partly right in saying that the majority opinion forecloses further democratic processes on this issue, since our healthy initiative process will give the voters the final say on same-sex marriages when they enter the voting booth in November to consider Proposition 8, which would, if enacted, overturn the Court’s decision. We will see this fall whether the California Supreme Court moved too quickly and too far for California’s voting public.

Freedom to work

Freedom of a very different sort was the subject of the Court’s opinion in Edwards v. Arthur Andersen LLP (Aug. 7, 2008) 2008 Westlaw 3083156. In Edwards, the Court reaffirmed a very broad freedom to work and compete by invalidating most non-competition agreements.

The plaintiff in Edwards was employed as a Senior Manager by Arthur Andersen. When initially hired in 1997, he signed a non-competition agreement which prohibited him from working for or soliciting certain Arthur Andersen clients for a limited period of time following termination from employment.

After Arthur Andersen’s indictment in 2002 in connection with the federal Enron investigation, the firm began selling off its practice groups to various entities. The plaintiff’s practice group was sold to HSBC USA, Inc. (a New York-based banking corporation), and HSBC offered the plaintiff employment contingent upon the plaintiff executing a “Termination of Non-compete Agreement” (TONC) that had been negotiated by HSBC and Arthur Andersen. When the plaintiff refused to execute the TONC, Andersen terminated his employment and withheld his severance benefits, and HSBC withdrew its offer of employment.

The plaintiff sued Arthur Andersen for intentional interference with prospective economic advantage and anticompetitive business practices under the Cartwright Act. For both causes of action, the underlying wrongful act was alleged to be the imposition of the non-compete agreement and Arthur Andersen’s demand that the plaintiff execute the TONC (which required the plaintiff to give up certain important rights in return for Arthur Andersen releasing the plaintiff from the non-compete agreement).

Most states apply a “rule of reason” to non-competition agreements in employment contracts, enforcing them so long as the scope, duration and terms are reasonable. By contrast, Section 16600 of California’s Business and Professions Code states in very broad terms, “Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” Other sections in the chapter exempt non-competition agreements in the sale or dissolution of corporations, partnerships and limited liability corporations.

Some lower state courts, along with the Ninth Circuit Court of Appeals, have suggested that Section 16600 should be interpreted as incorporating an overall standard of reasonableness. In Edwards, the Supreme Court reviewed these possibilities and flatly rejected them all. Even though the restraints imposed on the plaintiff might have been reasonable in scope and duration, the Court held the restraints to be invalid, reaffirming California’s status as one of the leading “freedom to work” states.

Freedom of speech at the mall

In Fashion Valley Mall, LLC v. NLRB (2007) 42 Cal.4th 850, the Court reaffirmed the rule that a shopping mall which holds itself open to the public may not prohibit speech on its grounds urging customers to boycott a store in the mall. According to the 4-3 majority opinion by Justice Moreno, such a prohibition violated the right to free speech guaranteed by Article I, Section 2 of the California Constitution.

The decision in Fashion Valley Mall is essentially a reaffirmation of the Court’s decision 30 years ago in Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899. Robins held that the free speech clause of the California Constitution grants broader rights to free expression than does the First Amendment to the United States Constitution and, in particular, that a shopping mall must be treated as the equivalent of a public forum for free speech analysis (contrary to federal cases arising under the First Amendment).

Applying that analytic approach in Fashion Valley Mall, the mall’s rule forbidding speech urging a boycott of one of the mall’s stores was clearly a content-based restriction on speech (instead of a content-neutral time, place and manner restriction) and was therefore subject to strict scrutiny.

Carlos Moreno

The majority easily held that the mall’s economic interest in protecting its tenants’ businesses was not compelling, particularly when weighed against the free speech interests of the union and its members who were locked in a labor dispute with the city’s major general circulation newspaper (the boycott being directed at one of the newspaper’s major advertisers).

There was a strong dissent by Justice Chin, joined by Justices Baxter and Corrigan. The dissent forthrightly called for Robins to be overruled, arguing that the case was wrong when decided and noting that it had been overwhelmingly rejected by other jurisdictions. On the issue of free speech rights on privately owned malls, California stands virtually alone.

Analytically, the dissent is the more persuasive opinion, if this were an issue of first impression. But Robins has been the law in California for almost 30 years, and absent some concrete evidence that the decision in Robins is causing some manifest, continuing harm to mall owners or tenants (or any other private property owners to which the Robins rule applies), there is little practical reason for overruling Robins.

Robins, and now Fashion Valley Mall, the Edwards decision and In re Marriage Cases remind the rest of the country that California does its own thing — that when it comes to personal liberties, we are truly the Land of the Free.

• J. Clark Kelso is a professor of law at the University of the Pacific McGeorge School of Law.

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