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The Intersection of Family Law and Religious Liberty

by Melvin Cook

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The U.S. Supreme Court is expected to rule this month on the constitutionality of same-sex marriage bans (of which only a few remain).

This blog does not seek to advocate any particular political position, but rather seeks to be primarily informative in nature. However, in the interest of full disclosure, the author supports traditional marriage primarily because of what seems to be persuasive research indicating that children thrive best in a committed marital relationship with a father and a mother. Well-respected family law professor Lynn Wardle from BYU has researched and written on this subject presciently as early as 1997 (and probably earlier), at which time one of his articles appeared in the University of Illinois Law Review. He also testified before a congressional committee in support of the Defense of Marriage Act (DOMA), when the issue of same-sex marriage was first percolating up through the state court system in Hawaii in the mid 1990’s.

I recognize, however, that 37 states including Utah, currently recognize same sex marriage.

Of course, there are also important conscience-driven, faith-based reasons for holding the position mentioned above, which brings me to the main point of this post — the interaction between modern family law and religious liberty.

Along these lines, I think the Utah State Legislature has done a pretty good job of attempting to reconcile competing interests with the anti-discrimination law it recently passed, which went into effect on May 12th, 2015. The law is found at Utah Code Section 34A-5.

As I understand it, the law seeks to protect potentially vulnerable individuals from discrimination in the workplace while at the same time protecting religious liberty and the legitimate expression of beliefs and commitments in the workplace. It does not attempt to create a special or protected class for any purpose other than employment. The term “Employer” is defined in a way that excludes religious organizations and the Boy Scouts of America.

As such, the law seems to me to be a conscientious attempt at resolving competing interests, and minimizing as much as possible the divisiveness that often accompanies this issue.

There are competing interests at stake to be sure. For example, no one wants to be seen as favoring invidious discrimination. The values of respect and civility towards everyone, even those with whom we may disagree, is a cherished American virtue. At the same time, religious freedom and freedom of expression are equally valued and time-honored traditions. They are also unalienable constitutional rights enshrined in our founding documents.

My hope going forward is that civility and respect on both sides of the issue will prevail and that the freedoms going to the very foundation of our country will continue to be respected and upheld.

Ok, I’ll step down from my soap box now because I do not like coming across as didactic. That’s a big word, so I looked it up to make sure I used it correctly. I remember one time in a legal writing class, the professor told us not to use big words in our writing. A fellow student raised his hand and asked: “If people with seven plus years of higher education don’t use those words, then who will?” I think he may have had a point, so here is my big word for the day:

Adjective: Didactic [dahy-dak-tik].
1. Intended for instruction; instructive.
2. Inclined to teach or lecture others too much.

Synonyms: instructive, educational, informative, edifying, pedagogic, moralistic.

Bonus Analysis of Hollingsworth v. Perry

Changing gears a little bit to a slightly different angle on a related subject, I have attempted to analyze recent case law that may provide a glimpse into the U.S. Supreme Court’s thinking on the issue of same-sex marriage bans. In particular, see my post from March 10th, 2015, wherein I analyzed the Windsor case.

Another case that has a somewhat more tangential bearing on understanding what the Supremes might do later this month is Hollingsworth v. Perry, 570 U.S. _____ (2013).

The procedural background behind that case revolved around California’s Proposition 8. California’s Supreme Court had ruled that limiting marriage to a union between a man and a woman violated the California Constitution. Later in the year, California voters passed the ballot initiative known as Proposition 8, which defined marriage as the union of a man and a woman.

Respondents in Hollingsworth were same-sex couples who wished to marry. They sued in federal District Court to enjoin state officials from enforcing Prop 8. California’s public officials declined to defend the law and allowed the initiative’s official proponents to defend it in federal court. After a twelve day trial, the District Court ruled in favor of the Respondents and enjoined California’s public officials from enforcing Proposition 8.

The official proponents of the initiative appealed to the Ninth Circuit Court of Appeals. The Ninth Circuit then certified a question to the California Supreme Court as to whether or not, under California law, the proponents had standing to appeal the decision in federal court. In particular, the Ninth Circuit posed two questions in the disjunctive: 1) did the proponents have a particularized interest in the matter before the Court sufficient to confer standing; or, 2) were the proponents authorized to make legal arguments on behalf of the state of California when the elected state officials declined to do so? The California Supreme Court did not answer the first question but answered the second question in the affirmative.

Having received this answer, the Ninth Circuit Court held that the initiative’s proponents had standing in federal court because, regardless of whether or not they had a personal or particularized interest in the matter separate and distinct from that of the general public, there was no question that the state of California had a particularized interest in vindicating the constitutionality of one of its duly passed laws. Because the state itself had standing, the Ninth Circuit reasoned that proponents had standing as well because they were authorized by the state election laws to make legal arguments on the state’s behalf when elected public officials declined to do so.

Having held that the initiative’s proponents had standing, the Ninth Circuit upheld the District Court’s decision on the merits, essentially invalidating Proposition 8 as unconstitutional.

Prop 8’s proponents appealed to the U.S. Supreme Court, which asked the parties to brief the issue of whether or not proponents had standing.

The Supreme Court held that proponents did not have standing at any time after the District Court issued its decision. Therefore, the Court declined to make a ruling on the merits of the case.

The Court based its decision on Article III Section 2 of the federal Constitution, which confines the judicial power to deciding “Cases” and “Controversies.” As one component in deciding what constitutes a case or controversy, the Court decides whether or not a litigant has standing. In order to have standing, a litigant must have a direct personal, particularized stake in the outcome of the controversy. This is also defined in other terms as having suffered a concrete injury that is fairly traceable to the conduct of the opposing party and that can be redressed by the Court.

The Court noted that this is an important restriction on the judicial power. In the system of federalism and the separation of powers, this restraint ensures that the Court acts not as a policymaker but as an adjudicator of disputes, thus ensuring that it acts within its proper sphere of authority under our constitutional system of checks and balances.

In making this ruling the Court held that standing must exist at all stages of the litigation, not just at the time of the initial filing. So, while the proponents had standing in the litigation at the District Court level, they lost that standing on appeal because they did not have a continuing particularized interest in the outcome of the case. Because the District Court had not ordered the proponents to do or refrain from doing anything (rather, it was the state officials who were enjoined from enforcing Prop 8, but they declined to pursue the matter any further), they had not suffered a concrete, personal and particularized injury that the courts could address. Thus, the proponents had a mere generalized grievance, or one that was indistinguishable from that of all the other millions supporters of Proposition 8.

The Court based its reasoning on prior cases in which individuals seeking to vindicate the constitutionality of a state law were found not to have standing. One case, Diamond v. Charles, 476 U.S. 54 (1986) involved a pediatrician who attempted to uphold the abortion law of the State of Illinois. A group of physicians had filed a constitutional challenge to Illinois’ abortion law in federal court and obtained an injunction from the Seventh Circuit against enforcement of parts of that law. The state chose not to pursue an appeal. But the state’s attorney general provided a letter stating that the pediatrician’s position with respect to the state’s law was “co-terminous” (or essentially identical) with the state’s position on the issues. Nevertheless, the Court found that the pediatrician did not have an injury of his own to redress and, therefore, that he lacked standing in federal court.

Likewise the case of Karcher v. May, 484 U.S. 72 (1987) was found to be unhelpful to the proponent’s argument for standing. In that case, the Court held that two New Jersey state officials – namely, the Speaker of the General Assembly and the President of the Senate – had standing to intervene in a lawsuit to vindicate the constitutionality of a New Jersey law which enacted a moment of silence for public schools. However, the reason they had standing was because they were participating in the litigation in their official capacities as elected representatives. The Court opined that once they no longer held office (they were apparently voted out of office during the course of the appeal), they lost their authority to pursue the appeal. In other words, they could not pursue the case in their individual capacities rather than their official capacities.

In the case of Arizonans for Official English v. Arizona, 520 U.S. 43, the Court expressed concerns about the Ninth Circuit’s decision that the proponents of an initiative declaring English as Arizona’s official language had standing to defend the measure in Court. The case was mooted by other issues, but the Court stated its concerns about standing, opining that the Court was “aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” Id. at 65.

The Court relied heavily on the Restatement of Agency. (Restatements of Law are secondary sources that seek to restate or summarize the rules of the common law in a particular area – see (visited June 19, 2015)).

In this regard, the Court found that no agency relationship existed between the state of California and the proponents of the initiative. The proponents were not under the control of state officials, they were unelected, and they had no fiduciary relationship with state officials. They could make legal arguments as they saw fit.

The Court seemed to distinguish between what they termed “mere” authority to assert legal arguments on behalf of the state, and a more specific and well-defined agency relationship, holding that the latter was required in order for standing to obtain.

In summarizing its opinion, the Court’s majority concluded that regardless of how sharp the controversy or how zealous the advocacy, without a particularized interest in the matter, proponents of an initiative lack standing to pursue an appeal in order to vindicate the constitutionality of a duly passed and generally applicable state law. The California state courts could not hand private parties a ticket to the federal courthouse where they otherwise lacked standing under the Court’s precedents.

Justice Kennedy wrote a vigorous and, in my opinion, powerful dissent in which he was joined by Justices Thomas, Alito and Sotomayor, an interesting breakdown in my opinion. Justice Scalia had joined the majority opinion, which was written by Chief Justice Roberts.

Justice Kennedy stated that, in his view, the Court was bound by the California Supreme Court’s interpretation of its own election laws. He felt that the Court seemed to misunderstand the nature and purposes of the referendum process. The nature and purpose of the initiative process is to circumvent elected officials when they do not act in accordance with the will of the people. The referendum process recognizes the people as the ultimate sovereign.

In this regard, Justice Kennedy viewed the majority’s ruling as overly technical and narrow as it relates to the law of agency. He pointed out that the proponents of an initiative, while they are not elected representatives, are nevertheless ultimately accountable to the people. Their initiatives can be recalled in subsequent elections. They can be said to be agents of the people in a meaningful sense, regardless of whether or not they are technically agents of elected state officials. But the law of agency as formulated in the Restatements of Law is simply not concerned with defining the parameters of an agency relationship in which the principal consists of 40 million people.

Justice Kennedy pointed out that one of the purposes of the Court’s requirement that there be a “case” or “controversy”, which includes the requirement of standing, is to ensure effective advocacy and to avoid conflicts of interest. In this respect, he noted that the proponents of an initiative are the parties most likely to provide effective advocacy because they have worked so hard to get the law enacted. In effect, they have invested sweat equity (my term) in the initiative which they have enacted into law. On the other hand, elected officials who may not necessarily agree with the law, may not have as keen an interest in effectively advocating to vindicate the law’s constitutionality.

Justice Kennedy recognized that a very difficult issue was before the Court. But he did not believe this was a good reason to avoid deciding the case before it on the merits, particularly when in his view, the denial of standing to initiative proponents to appeal adverse federal court decisions has far-reaching implications for the referendum process in many states and effectively denies referendum proponents their day in Court after a District Court has made its ruling.

This brings me to what is, in my mind, the most compelling argument Justice Kennedy makes in his dissent; namely, that the Court’s ruling effectively shuts the federal courthouse doors to appeals when elected officials refuse to defend the validity of laws made through the initiative process. He points out that opponents of initiatives challenge these laws in court at a high percentage rate and that there are 26 states with referendum procedures similar to California’s. The majority’s ruling makes it so that a lower federal court ruling on a law enacted through the referendum process is the end of the matter if the state’s elected representatives choose not to appeal it.

I agree with Justice Kennedy because I think the referendum process has an important place in our democracy. Although the founding fathers were wary of direct democracy (as opposed to representative democracy, or republicanism), likening it to a form of anarchy or mob rule, they still recognized that ultimate authority rests in the people. After all, the preamble to the Constitution begins, “We the People … in Order to Form a More Perfect Union … ” , and so forth. So I think there is a place in our democratic system of government for plebiscites such as the referendum processes in place in many states. It is duly difficult to enact laws by means of referendum procedures, but the process itself serves as a valuable safety valve to bypass public officials when they do not act according to the will of the people. Denying referendum proponents access to federal courts of appeal does harm to the referendum process, as observed in the Hollingsworth dissent. Justice Kennedy, in respectful but strong terms, states his belief that the Court’s ruling “disrespects” and “disparages” the referendum process.

So what does all of this mean in trying to divine what the Supreme Court will do in the next couple of weeks, perhaps even next week (the week of June 22nd), when it rules on the merits of same-sex marriage bans?

In reading the Hollingsworth and Windsor cases, I see a lot of language regarding federalism and judicial restraint in both cases. By federalism, I mean the division of spheres of authority between the federal government and state governments. By judicial restraint, I mean the role of the judiciary as an arbiter of individual disputes, rather than a maker of broad public policy.

In the Windsor case, as Justices Roberts and Alito point out in their dissents, the Court’s holding resounded strongly with tones of federalism. Justice Kennedy, in writing for the majority in that case, found it unusual that the Defense of Marriage Act (DOMA) would seek to intrude into the area of domestic law, which hast historically has been almost entirely the domain of the states, subject to certain constitutional guarantees such as those found in Loving v. Virginia, 38 U.S. 1 (1967) (holding state anti-miscegenation statutes unconstitutional).

Justice Roberts seems to trust the majority’s extensive verbal homage to federalism. Justice Alito seems somewhat more skeptical, pointing out that if the Court in a subsequent decision fails to allow the states to define marriage for themselves, that whatever whiffs of federalism are contained in the Windsor decision will soon be scattered to the four winds. Justice Scalia seems even more skeptical than Justice Alito about the majority’s federalism language, seeming to believe it is nothing more than wonderful lip service.

In Hollingsworth, the majority focuses heavily on principles of judicial restraint, in connection with the principle of separation of powers, recognizing that the Court cannot be a policymaker but must adhere to its role as an adjudicator of disputes, or as Article III of the Constitution describes them, “Cases” and “Controversies.” The Hollingsworth case is less illuminating to me than the Windsor case as to how the Court might rule on the merits of same-sex marriage bans, simply because it did not decide the merits of the case. In effect, Hollingsworth punted the issue to a later date, albeit arguably for good reasons.

But there is plenty of language in both of these cases to suggest the Court could make a ruling based on judicial restraint and federalism, thus allowing the political processes to play out and permitting states to decide for themselves how to define marriage.

On the other hand, there is also plenty of language, especially in the Windsor case, to suggest that the Court could make a ruling focused more on its view of the principles of equal protection and due process, somewhat along the lines of Loving v. Virginia. I think this is what most pundits expect.

The only thing that I can predict with a degree of confidence is that the ruling will likely be close, probably a 5-4 or 6-3 decision.

But we will just have to wait and see.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.

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