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Same-sex marriage takes center stage again in California Supreme Court term

By J. Clark Kelso


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For the third time in five years, the California Supreme Court dealt with the issue of same-sex marriage. The most recent decision — a loss for proponents of same-sex marriage — does not end the debate. More litigation is now proceeding in federal district court, and a return trip to the initiative process seems inevitable. For now, however, the voting public has won the day.

This article also reviews the legality of private-sector patdown searches before patrons can enter a stadium for a sports event and the legality of arbitration clauses that purport to define custom-made levels of judicial review of arbitration awards. In both cases, the Court appears willing to give private parties fairly broad room for managing their affairs.

The initiative wins

The People of California, along with the rest of the nation, waited a long time for the decision last year 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. The decision in In re Marriage Cases was a close call for the Court (a 4-3 vote).

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 answer was yes, and a key step in the analysis 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.” Id., 43 Cal.4th at 814-15. By rejecting a more traditional definition of marriage as a union between a man and a woman, and defining marriage without reference to gender, the Court easily concluded that gender-based limits on marriage were unconstitutional.

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 under state statutes that had broadly extended to same-sex couples the same legal rights as opposite-sex marriages. The Court’s equal protection analysis was far reaching. The majority concluded that sexual orientation is a “suspect classification” and that statutes that classify on the basis of sexual orientation are subject to “strict scrutiny.” The State was unable to establish any compelling justification for denying same-sex couples official recognition as married couples.

Justice Marvin Baxter penned a strong dissent, the major thrust of which 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. 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.” Id., 43 Cal.4th at 861.

Other “democratic means” soon spoke when voters enacted Proposition 8 by a 52.3 percent to 47.7 percent margin. Proposition 8 provided that “only marriage between a man and a woman is valid or recognized in California,” effectively overturning the core holding in In re Marriage Cases.

Proposition 8’s legality was immediately challenged. The overriding question was whether the initiative process could be used by the voters to resolve the same-sex marriage question and overrule In re Marriage Cases. In Strauss v. Horton (2009) 46 Cal.4th 364, the Court held that the voters had the final say. The Court’s decision resolved three issues: (1) whether Proposition 8 was a “revision” instead of an “amendment,” in which case it could not be put on the ballot as a voter initiative; (2) whether Proposition 8 violates separation of powers; and (3) whether Proposition 8’s passage voids all of the pre-Proposition 8 marriages.

Although the case drew lots of lawyers and public interest, its resolution was never really in much doubt. The Court’s precedents on what constitutes a “revision” left very little room for an argument that Proposition 8 was an unconstitutional revision. To be a revision, an initiative’s meaning and scope must be so significant and broad as to fundamentally alter, quantitatively and/or qualitatively, the basic governmental plan or framework embodied in the existing provisions of the California Constitution. Proposition 8 did not satisfy any of these criteria.

First, as the Court explained, Proposition 8’s actual legal impact was relatively narrow. Proposition 8 did not overrule the Court’s broad equal protection holding in In re Marriage Cases, and it did not even overrule the holding that same-sex couples are entitled to all of the same legal protections and benefits as married couples. Instead, Proposition 8 overruled only the narrower holding that it was unconstitutional to deprive same-sex couples of the official designation of their relationship as a “marriage.”

In addition, Proposition 8’s text was quantitatively de minimus and, in light of the Court’s conclusion regarding the scope and meaning of Proposition 8, it was apparent that Proposition 8 did not fundamentally alter the Constitution’s basic governmental plan or framework.

The separation of powers argument was even weaker. Petitioners claimed that Proposition 8 somehow “readjudicated” the issue in In re Marriage Cases. That simply wasn’t true as a factual or legal matter. Proposition 8 did not readjudicate anything; it changed the text in the Constitution, and amending the Constitution is a power the Constitution itself gives to the people.

The Court also easily rejected the Attorney General’s novel argument that “inalienable rights” embodied in Article I, Section 1 of the California Constitution are not subject to “abrogation” by amendment absent a compelling state interest. As the Court noted, “the natural-law jurisprudence … relied upon by the Attorney General has been discredited for many years …. This court would radically depart from the well-established limits of the judicial function were it to engraft such a restriction onto the Constitution.” Id., 46 Cal.4th at 391.

The final question — what to do about pre-Proposition 8 marriages — was the easiest of all to answer. There is a general presumption that legislative enactments apply prospectively. Nothing in the language of Proposition 8 or the ballot materials dealt explicitly with the retroactivity issue, so the presumption applied. In addition, same-sex couples who married after the In re Marriage Cases decision acquired vested property rights with respect to a wide range of subjects (e.g., employment benefits, interests in real property and inheritance), and a holding applying Proposition 8 retroactively would create serious due process problems.

The Court’s decision this term is just the most recent chapter in a statewide and national debate about the scope of “marriage.” A challenge to Proposition 8 is now pending in federal court, and there will undoubtedly be more initiatives and litigation on this topic in California and elsewhere. Same-sex marriage is one of those hot-button issues that seemingly resists permanent resolution.

Private patdown searches

The California Constitution’s privacy clause applies not only to state action, but also to purely private party action that interferes with privacy interests. So when the San Francisco 49ers implemented a policy of requiring all ticket holders to submit to a patdown search prior to entering the stadium, litigation was sure to follow. A few season ticket holders sued, alleging that the policy violated the privacy clause contained in Article 1, Section 1 of the state Constitution. The superior court sustained a demurrer without leave to amend, and the court of appeal affirmed.

In Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, the Supreme Court reversed, holding that the allegations in the complaint were sufficient to survive a demurrer. In a privacy case involving private party action, the plaintiffs must establish a legally protected privacy interest, a reasonable expectation of privacy in the circumstances, and a serious invasion of that interest. If the plaintiff can make that showing, the defendant may still prevail if it can establish a reasonable justification that substantively furthers one or more countervailing interests.

The plaintiffs in Sheehan satisfied their pleading burden. The most contentious issue was whether the plaintiffs had a reasonable expectation of privacy given that the policy had been announced by the 49ers in advance of the plaintiffs’ purchase of season tickets and the plaintiffs had the option not to attend the game if they objected to the patdown. Focusing on the narrow procedural posture of the case — a ruling on a demurrer where the court must accept the allegations in the complaint as true — the Court held that it could not conclude as a matter of law that the plaintiffs lacked a reasonable expectation of privacy.

At the same time, however, the majority explained at length the type of policy justifications and competing social interests which the 49ers might advance in a motion for summary judgment that might be sufficient (e.g., security measure to protect the safety of ticket holders). The Court went out of its way to emphasize that the ultimate disposition of the case would depend upon a balancing of competing interests under a very general rubric of reasonableness, at least when the case involved only private party action as opposed to state action.

In sum, privacy may be a constitutional right in California, but ordinary standards of reasonableness govern the application of that right in cases involving private persons.

Cafeteria style arbitration

One of the supposed benefits of commercial arbitration has been that it substitutes quicker, more informal decision-making by private adjudicators for the more formal, slower processes of public courts. Part of the secret to the speed and informality has been the very narrow grounds upon which arbitration awards can be reviewed and set aside by courts. Generally, courts will not review an award on its merits to determine whether the law has been correctly stated, the facts have been correctly found, or the law has correctly been applied to the facts. The concern has been that if courts started reviewing arbitration awards on the merits, arbitration would inevitably lose its quick, informal character.

The problem with such limited judicial review is that arbitration awards must be enforced by the courts even when it appears the arbitrators ignored or misapplied the law or got the facts wrong. Judicial enforcement of such awards seems on the surface to be contrary to respect for the rule of law, and many judges feel uncomfortable enforcing an award that is contrary to law.

Nevertheless, that has clearly been their duty ever since the 1992 decision in Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, where the Court made it clear that “in the absence of some limiting clause in the arbitration agreement, the merits of the award, either on questions of fact or of law, may not be reviewed except as provided in the statute.” Id., 3 Cal.4th at 25. Ever since Moncharsh, review on the merits has been very limited.

The Court’s decision in Cable Connection, Inc. v. DirecTV, Inc. (2008) 44 Cal.4th 1334, alters the playing field. In Cable Connection, the Court held that the parties can agree to allow for judicial review of legal error in an arbitration award, so long as they structure the arbitration agreement to trigger a statutory ground for review. The apparent end run around Moncharsh is achieved by a clause in the arbitration agreement providing that “the arbitrators shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.” Id., 44 Cal.4th at 1340. One of the statutory grounds for vacating an arbitration award is that “the arbitrators exceeded their powers.” C.C.P. §1286.2(a). So if the arbitration clause defines their powers so they have no power to commit legal error, that is enough to trigger the statutory ground for vacatur or correction.

The Court not only did an end run around Moncharsh, which was pretty easy to accomplish given the precise holding and language in that case, it executed a similar maneuver to avoid the reach of the United States Supreme Court’s decision in Hall Street Associates, L.L.C. v. Mattel, Inc. (2008) 128 S.Ct. 1396, where the Court held that the Federal Arbitration Act does not permit the parties to expand the scope of judicial review by agreement, although a “more searching review based on authority outside the [federal] statute,” including a state statutory basis for review, was permitted. Id., 128 S.Ct. at 1406.

Arguably, the arbitration clause before the California Supreme Court ran afoul of Hall Street because the heightened review for legal error was clearly something the parties accomplished by agreement. The Court avoided Hall Street’s conclusion by noting that the agreement between the parties triggered heightened review under the state’s “exceed their powers” statute (i.e., §1286.2(a)) quoted above, and so the heightened review was based on proper statutory authority — even though that statutory authority was triggered solely by the agreement between the parties.

It will take some time for the courts to figure out just how far the Cable Connection approach can be taken since there clearly is some tension between what Cable Connection suggests is possible and the spirit of both Moncharsh and Hall Street. For now, parties negotiating arbitration agreements should start thinking about exactly how they would like to design their dispute-resolution process and how much judicial review and correction they would like to draft into their agreements. The dispute-resolution cafeteria is open for business.

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

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