Amicus Program
CWL participates as amicus curiae in important cases affecting equal access to justice and civil rights on both statewide and national levels
California Women Lawyers is a leader among bar associations in the charge to protect the civil rights of all people in our society. The CWL Amicus Committee proactively surveys the legal landscape for cases of interest and responds to requests from advocates and public interest organizations seeking CWL’s support for appropriate cases at all stages of the appellate process.
The cases below represent a sample of the work CWL is doing in the appellate courts. If you are interested in joining the Amicus Committee or soliciting CWL’s support as amicus curiae, please contact Lara M. Krieger at (310) 859-7811 or lkrieger@gmsr.com
Marriage Equality
In November 2008, the California electorate approved an initiative – Proposition 8 – that overruled the Supreme Court’s earlier decision in the In re Marriage Cases, which extended the legal definition of “marriage” to include same-sex couples. Proposition 8 added the following constitutional provision: “Only marriage between a man and a woman is valid or recognized in California.” Immediately after the vote, several parties filed petitions asking the California Supreme Court to consider the constitutionality of Proposition 8. The Supreme Court agreed to consider the challenges and set an expedited briefing schedule.
In January 2009, CWL joined a California Supreme Court amici curiae brief in support of preserving the meaning of article I, section 1, of the California Constitution and of marriage equality. The brief – which was filed in the proceedings challenging the constitutionality of Proposition 8 – presents compelling arguments not advanced by others in the case. The key issue in the Supreme Court challenges is whether Proposition 8 effects a constitutional “revision” (which requires a two-thirds vote of both houses of the Legislature or a constitutional convention to take effect), rather than a constitutional “amendment” (which is effected through the initiative process).
The amici brief argues that Proposition 8 effectuates an unconstitutional revision of the Constitution because it impliedly, but necessarily, eviscerates the meaning and promises of the foundational section of our Constitution – those set forth in article I, section 1, guaranteeing “inalienable rights” to “all people.” Since our Supreme Court has held that the fundamental right to marry a person of one’s choice, regardless of sex, is a right protected by article I, section 1, the amici brief maintains that a court decision upholding the taking of that right by majority vote would necessarily destroy the guarantees of article I, section 1, by effectively eliminating the word “inalienable” and the words “all people.” If Proposition 8 is lawful, “inalienable” would effectively be changed to mean “alienable at the will of the majority” and “all people” would effectively be changed to mean “those people blessed by majority vote.”
We argue that any measure that so fundamentally alters the meaning of our most basic and cherished constitutional guarantees – the only ones described as “inalienable” – requires more than a majority vote. Instead, under our Constitution, any such measure must first be proposed by a constitutional convention or by a two-thirds vote of each house of the Legislature, something that did not happen with Proposition 8.
Our argument builds on the argument advanced by the Attorney General in opposition to Proposition 8. The AG recognized the central importance of the core liberties guaranteed by article I, section 1, including their role as the foundation of the social compact between the individual citizens and the government. Unlike the AG, however, we argue Proposition 8 constitutes an unlawful constitutional revision, rather than an unlawful amendment.
CWL is proud to have joined an amicus brief that argues that the guarantee of inalienable rights to all people must mean exactly what it says and cannot be changed or diminished by simple majority vote.
The amici brief was authored by a team of experienced appellate specialists at Greines, Martin, Stein & Richland. The brief was commissioned by the Beverly Hills Bar Association, and was joined by CWL affiliates Women Lawyers Association of Los Angeles and Women Lawyers of Sacramento.
Oral argument was heard in March 2009, and the court issued its decision upholding Proposition 8 on May 26, 2009.
The dispositive legal issue is a dry one: Does Proposition 8 amount to a constitutional “amendment” (which can be effected through the majoritarian initiative process) or a “revision” (which requires more than a simple majority vote)? If Proposition 8 is deemed a “revision,” then the initiative process was improper and the Proposition unconstitutional.
The court held that a constitutional “revision” must have the quantitative and qualitative effect of changing the “basic governmental plan or framework embodied in the preexisting provisions of the California Constitution.” According to the court, the amendment versus revision dichotomy depends not on the “relative importance” of the change, but rather on its “scope.”
Under this rubric, the court held that Proposition 8 – narrowly construed – does not undermine our Constitution’s “basic governmental plan or framework.” To reach this result, the court seemed to retreat from much of its sweeping language in the Marriage Cases. The court upheld Proposition 8 because it does not “fundamentally alter the meaning and substance of state constitutional equal protection principles . . . Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reversing the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.” The court got around its earlier holding by interpreting Proposition 8 as a “limited exception to the state equal protection clause as interpreted in the majority opinion in the Marriage Cases.”
After disposing of other arguments, including a separation of powers challenge, the court considered the Attorney General’s contention that Proposition 8 abrogates fundamental rights protected by article I, section 1 of our state Constitution. The Attorney General’s argument was similar to that raised in CWL’s amici brief: That the rights enumerated in article I, section 1 (including the right to marry) are inalienable and thus cannot be abrogated.
The court sidestepped this challenge by, once again, minimizing the impact of Proposition 8, saying that Proposition 8 does not abrogate any constitutional rights of privacy or due process – all that it does is strip the term “marriage” from same-sex couples. In the court’s view, that inequality was not enough to hold the Proposition unconstitutional.
The court’s opinion then veers into dangerous territory by saying that even “inalienable” rights are not necessarily “totally exempt from any limitation or restriction.” To the contrary, the court says that there has never been an understanding that an “inalienable right” is immune to a constitutional “amendment” – which is effected by a simple majority vote. These few pages of the court’s opinion are the most troubling, and run counter to the very notion of “inalienable rights” and “suspect classes.” The court may well have opened the floodgates to initiatives seeking to enact constitutional amendments modifying the most basic of all constitutional tenets: The need to protect the minority from the majority.
The court also held that Proposition 8 cannot be applied retroactively because there is no extrinsic evidence that the voters intended retroactive application. Moreover, retroactive application would pose a “serious potential conflict with the state constitutional due process clause” because it would divest a legitimate, vested right afforded to same-sex couples married following the Marriage Cases.
Access to the Courts
In November 2008, CWL joined a California Supreme Court amici curiae brief supporting access to the courts by employment discrimination plaintiffs. In Chavez v. City of Los Angeles, S162313, the Supreme Court is considering whether a prevailing employment discrimination plaintiff is entitled to attorney’s fees as authorized by California’s Fair Employment and Housing Act (“FEHA”) even if the plaintiff is awarded less than $25,000 in damages. In Chavez, the trial court refused to award FEHA attorney’s fees because the jury’s damage award was less than the Superior Court’s $25,000 jurisdictional amount in controversy minimum. The Court of Appeal reversed, and the case is now in the Supreme Court. CWL joined the amici brief because FEHA’s attorney’s fees provision is essential to ensuring that low income employment discrimination plaintiffs have equal access to the courts. Without the promise of FEHA attorney’s fees at the conclusion of a successful lawsuit, it will likely be difficult (if not impossible) for plaintiffs to retain quality lawyers.
CWL member Lisa Jaskol drafted the excellent amici brief on behalf of CWL and the Los Angeles County Bar Association. Updates will be posted on this page as Chavez works its way through the California Supreme Court.
Protection for Battered Women
CWL joined a host of organizations, including other bar associations such as San Francisco’s Queens Bench Bar Association, supporting legal protections for battered women in an amicus brief filed in Blumhorst v. Jewish Family Services of Los Angeles, 126 Cal. App. 4th 993 (2005). Plaintiff Eldon Ray Blumhorst sued 10 battered women’s shelters, alleging that each one had discriminated against him on the basis of sex by failing to provide shelter and support services to “battered men.”
In addition to suing the Shelters, plaintiff alleged California and federal equal protection causes of action against the County of Los Angeles and the State of California Department of Health Services. The amicus brief CWL joined addressed the broad public policy considerations raised by this case, specifically that (1) the rationale to fund women-only shelters is sound in light of the fact that women are disproportionately the targets of domestic violence; (2) battered women are better served by women-only shelters; and (3) the financial viability of the Shelters would be compromised if denied State funding.
The Court of Appeal sided with the Shelters, dismissing the case because Blumhorst lacked standing – Blumhorst did not allege that he was either a current victim of domestic violence or that he was likely to be such a victim in the future. Accordingly, he was not entitled to “tester” standing. The ruling in this case is a major victory for battered women and children in the ongoing fight to preserve the legal and societal protections afforded them.
Juvenile Death Penalty
CWL joined an amicus brief filed in the seminal U.S. Supreme Court case holding that the imposition of the death penalty on defendants who were under 18 years of age at the time their crime was committed is unconstitutional. In that case, Roper v. Simmons, 543 U.S. 551 (2005), defendant Christopher Simmons was sentenced to death for a murder he committed when he was 17 years old. Simmons appealed his conviction on the ground that to execute him for a crime committed when he was under 18 years of age constitutes cruel and unusual punishment and is prohibited by the Eighth and Fourteenth Amendments. The Missouri Supreme Court agreed, and set aside Simmons’s death sentence and re-sentenced him to life imprisonment without eligibility for probation, parole, or release except by act of the Governor.
CWL joined forces with a host of child advocacy organizations to file an amicus brief in the U.S. Supreme Court arguing that juveniles bear a lesser moral culpability for crimes they commit and that there is a greater risk of wrongful execution because of their special vulnerability to confessing to crimes they did not commit. The Supreme Court’s decision is a significant step toward protecting the civil rights of children, which is a primary focus of CWL’s advocacy mission.
Choice
Unfortunately, not all of CWL’s amicus efforts have been successful. In 2007, the U.S. Supreme Court rejected a facial constitutional challenge to the Partial-Birth Abortion Ban Act of 2003. In that case, Gonzales v. Carhart, 127 S. Ct. 1610 (2007), the Supreme Court considered decisions from both the Eighth and Ninth Circuits striking down the Act as unconstitutional. CWL joined the amicus brief filed by the National Women’s Law Center, which argued that the Act may deny women to a safe abortion, impermissibly imposes a specific moral viewpoint on all women, and unconstitutionally violates women’s bodily integrity.
The Supreme Court rejected these arguments (and those of the many other amicus briefs) and instead held that the Act was not void for vagueness, and that the Act did not impose an undue burden on a woman’s right to an abortion based on overbreadth or the lack of a health exception. This decision is a blow to every woman’s right to control her own body, and serves as a stark reminder of the roadblocks still in the way of full gender equality – and spurs CWL to redouble its efforts to overcome those obstacles.
