Posts Tagged ‘US Supreme Court’

Four Ways the California Supreme Court Could Rule on Prop. 8

// November 11th, 2008 // 2 Comments » // All things LGBT

I am hoping this is my last Prop. 8 blog till at least the weekend.

I figure there are four ways for the California Supreme Court to rule on this Prop. 8 mess in the coming week.

1. Injunction Relief

A reader suggested that I look into Romer v. Evans – the case goes like this:

In 1992, voters in Colorado approved Amendment 2 by 53.4%, which nullified existing anti-LGBT discrimination ordinances. The District Court questioned the constitutionality of the proposition and granted a temporary injunction against the proposition till a trial was scheduled by the Colorado Supreme Court. The higher court upheld the injunction, declaring Amendment 2 in violation of the Equal Protection Clause of the Fourteenth Amendment. In 1996, the U.S. Supreme Court struck down Amendment 2 as unconstitutional in a 6-3 decision arguing that the law did not even meet the rational basis test (let alone the ‘strict Scrutiny’ that California and Colorado both afford to ‘sexual orientation’).

Thomas, Scalia and Rehnquist dissented, arguing that homosexuals can be denied ‘special’ protections due to their ‘self-avowed’ conduct. That is one amusing nut-job dissenting opinion for the ages.

This would be the easiest way out for the California Supreme Court — grant an injunction relief and let the federal courts decide the mess. It’s probably not what either side wants but it would also grant gay couples the right to marry and time to reverse the measure by 2010 before the U.S. Supreme Court would even hear it.

2. Invalidate Prop 8.

This is the amendment vs. revision debate and the argument that the ACLU, Lambda Legal and NCLR make in their brief. Volokh and Bainbridge do not think so.

Although the electorate may amend the Constitution by initiative (art. XVIII, § 3), a revision of the Constitution may be accomplished only by a constitutional convention and popular ratification (art. XVIII, § 2) or by legislative submission of the measure to the electorate (art. XVIII, § 1). The opponents of Prop. 8 plan to argue in Court that Prop. 8 would require a revision and not merely an amendment because it was in direct violation of equal protection and the spirit of the constitution, and thus a SUBSTANTIAL change.

Raven v. Deukmejian in 1990 was the first case where a proposition was thrown out on the basis that it would have required a revision and not an amendment. The California Supreme Court argued similarly for ‘gay marriage’ in re Marriage cases:

“We conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.“

Is Prop. 8 a substantial change? Well, legal ‘experts’ think it is a stretch but lets agree that it does violate the EQUAL PROTECTION CLAUSE of the California Constitution decided by the Courts on May 15. If the California Supreme Court lets Prop. 8 stand, it sets a dangerous precedent that provides a gaping slippery slope, whereby equal protections for all groups in society could be put on the ballot and voted away by a minimum majority.

For example, in 2010, let’s ban the Republican party from California – it should pass by an easy majority, more than 52% for sure. Oh, not fair? Too bad.

On this basis, I truly believe that it has to either provide an injunction or invalidate.

3. With-hold marriage benefits from everyone

(I will throw a party for this one)

There may be no need to overturn Prop. 8.

Prop 8 put an asterisk or exception to the ‘equal protection clause’ of the California Constitution and the only way to settle the contradictions between the different clauses would be to strike marriage from the constitution—if gays cannot get married under civil law, neither can anyone else, period.

This is from re Marriage cases:

When a statute’s differential treatment of separate categories of individuals is found to violate equal protection principles, a court must determine whether the constitutional violation should be eliminated or cured by extending to the previously excluded class the treatment or benefit that the statute affords to the included class, or alternatively should be remedied by withholding the benefit equally from both the previously included class and the excluded class. (119)

[…]

In the present case, it is readily apparent that extending the designation of marriage to same-sex couples clearly is more consistent with the probable legislative intent than withholding that designation from both opposite-sex couples and same-sex couples in favor of some other, uniform designation.(120)

The probable intent in this case is discriminatory and violates equal protection through the statutory initiative process.

Is the court courageous enough to invalidate Prop. 8 or will it go a step further and withhold civil marriage equally from all segments of society? The latter would certainly spark an outcry and be well-deserved. It would also create a mess in light of the ‘universalizing’ marriage laws of other states and might make California scramble and agree to marriages for all couples.

Not likely to be done anytime soon. But amusing nonetheless especially since this all started with the Christian conservatives wanting to ‘protect traditional marriage.’ They can still have their little traditional marriages (whatever that means), but that would have nothing to do with the state.

4. Do nothing. Let the will of ‘the people’ stand

Legal ‘experts’ say that the ruling will probably stand. It seems unlikely as the Court has reacted with an urgency to the lawsuits filed, declaring that a decision would be made by next week. Would the California Supreme Court let Prop. 8 stand and the culture war intensify further in California? Right now I think that would be great for the LGBT civil rights movement.

Anyway, that was my two Fijian cents. I am no legal scholar.

Feel free to list more ways that make legal sense.

P.S. Some segments of the ‘Yes on 8′ are already talking about recalling the four judges on the Supreme Court responsible for upholding minority rights. Go figure.

Related post: Law professors all over California debunk Prop. 8

Making College Less Accessible for Immigrant Students One Lawsuit at a Time

// September 16th, 2008 // 1 Comment » // Desi-Indian, Education, Immigration

http://www.maldef.org/ab540/banner.jpg

Disclaimer: This issue does not relate to me. I am not an AB-540 student and nor have I ever benefited from it. But it makes me mad that people are scapegoating fellow college students who have worked really hard to get where they are .

Seriously, college education should be free for all and then we wouldn’t be fighting over the small piece of the pie. Alas …

Kris Kobach finally got his first and last victory in the battle to end in-state tuition for undocumented students. The 3rd District California Court of Appeal issued a decision yesterday that challenges a state law allowing some undocumented students to pay in-state college tuition. (Explanation here)

After losing the battle in district courts and appeals court in various states, Kansas Chairperson of the Republican Party, Kris Kobach made one final appeal to the U.S. Supreme Court, only to be turned down. Obviously, the justices on the U.S. Supreme Court had nothing to say on the issue that hasn’t already been said by the district and appeals courts: the plaintiffs do not have a right to sue.

He vowed to keep trying to make life more difficult for undocumented students or immigrants without legal status (whom he would call ILLEGAL students) and collect more plaintiffs in order to sue states for providing in-state tuition to undocumented students who had graduated from those state high schools (i.e. in California, your eligibility for in-state tuition is determined by whether you have attended a California high school for 3 or more years).

(While we are on the topic of “illegal,” for those who don’t know, Kris Kobach is the GOP politician that sent out emails boasting about voter caging–an ILLEGAL tactic employed by the Republican Party to purge likely-Democrat voters from the polls. I thought ‘illegal is illegal’ – Why is this guy still allowed to roam around free after disenfranchising thousands of voters?!)

Addendum: This from Duke @ Migra Matters. “Look who was part of that class action suit …Brian Bilbray…ex-FAIR lobbyist and head of the nativist Congressional Immigration Reform Caucus …his kids had been living in VA and didn’t qualify for in-state tuition”

On the DREAM ACT

While the DREAM Act does not grant instate-tuition rights to undocumented students, opponents of the legislation have effectively spread myths purporting that “illegal aliens can get instate-tuition anywhere” with passage of the legislation. This is baseless and untrue–If the federal DREAM Act passes it would make this ruling ineffective or the plaintiff’s argument ineffective because it repeals the only statute that gives or may give these plaintiffs any legal standing (8 U.S.C. § 1623). However, that does not ensure that undocumented students would get instate-tuition at all schools because residency determination is a state prerogative.

Eleven states currently provide in-state tuition to children without legal status in the United States (Texas, California, Utah, Washington, New York, Oklahoma, Illinois, Kansas, Minnesota, New Mexico, and Nebraska.) ALL legal challenges and lawsuits filed against these states had been dismissed by courts until yesterday when the on-crack judges wanting some fame of their own reversed a decision by Yolo Superior Court Judge Thomas Warriner in 2006 that upheld the AB-540 tuition law passed by the Legislature in 2001.

While the courts in California battle over the issue, undocumented students are expected to continue paying in-state tuition till a final ruling is given on this matter. This also gives new purpose to California AB-540 students to push for the Federal DREAM Act, passage of which would strike-down the federal law prohibiting ‘benefits’ for undocumented students in higher education (unless citizens get the same benefit).

I believe Quaker sums the issue up best here in his own light comedic way for any passerby to understand. Rahman has another strong piece posted here that anyone defending in-state tuition for undocumented students should find helpful.

Below is some material that I had published earlier to provide a better background on the in-state tuition debate.

BACKGROUND

For a legal background of the in-state tuition debate, we first look to Vlandis v. Kline et Al (1973), in which two students who had recently established residency in Connecticut brought suit against the state under § 1983, alleging that the provisions of 1971 Conn. Pub. Acts § 126(a), which created an irrebuttable presumption of nonresidency for purposes of determining tuition between residents and non-residents in the state’s universities, violated the Due Process Clause of the Fourteenth Amendment. The U.S. Supreme Court affirmed the suit—“the state was forbidden by the Due Process Clause to deny an individual the resident rates on the basis of a permanent and irrebuttable presumption of nonresidence when that presumption was not necessarily or universally true in fact.” The court concluded that due process required that students should have the opportunity to present evidence of their bona fide residency within the state for in-state tuition purposes.

This holds true for undocumented students—children that are brought up in a particular state, and attend and graduate from secondary schools in that state should indeed be deemed residents for tuition purposes. Most statutes that give undocumented students instate-tuition are based on this premise. After all, as the U.S. Supreme Court ruled in Plyler v. Doe:

  1. The undocumented status of these children vel non does not establish a sufficient rational basis for denying them benefits that the State affords other residents.
  2. Neither is there any merit to the claim that undocumented children are appropriately singled out because their unlawful presence within the United States renders them less likely than other children to remain within the State’s boundaries and to put their education to productive social or political use within the State.

Undocumented or Illegal is not an immutable characteristic for these students—it is subject to change. The U.S. Supreme Court recognized that the ‘illegal alien’ child of today could be the U.S. citizen of tomorrow and there was no way of determining that the undocumented child would in fact be deported hence, “it would of course be most difficult for the State to justify a denial of education to a child enjoying an inchoate federal permission to remain.” Similarly, since deportation is a federal procedure and until it is completed in cases of individual undocumented students, it is impossible for a state to deem that a person is a ‘non-resident’ for tuition purposes because s/he may just indefinitely remain in the state after establishing it as home. Hence, granting in-state tuition to undocumented students based on their residency in the state becomes a rational and reasonable objective for the state.

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Residency Not Determined by Undocumented Status

// July 18th, 2008 // 2 Comments » // Immigration

The Idaho Supreme Court ruled today that an undocumented immigrant who was injured in Ada County was entitled to medical assistance from that county regardless of his immigration status, stating that “the concept of residency does not distinguish between citizens and those who have entered this country illegally.”

The ruling reversed a board opinion and resembles the approach ten states have already taken to giving instate-tuition to undocumented students. Namely, residency and citizenship are two separate matters and defined differently.

A resident of Idaho as defined as “a person with a home, house, place of abode, place of habitation, dwelling or place where he or she actually lived for a consecutive period of thirty (30) days or more within the state of Idaho. A resident does not include a person who comes into this state for temporary purposes, including, but not limited to, education, vacation, or seasonal labor…”

Following that definition, most undocumented immigrants with the exception of seasonal migrant workers, are deemed residents by the county or state in which they reside. Their immigration status has no bearing on their residency.

The Supreme Court Opinion is here

Supreme Court relaxes Immigration Laws – Chipping Away at “Illegal is Illegal” de jure

// June 18th, 2008 // 1 Comment » // Immigration

The Supreme Court ruled 5-4 last week that anyone who is under “voluntary departure” can still petition to remain in the U.S. if their circumstances change i.e. marriage. You can read the details below.

Basically, under older USCIS provisions, once you are in the country illegally, you are doomed. There is no way to petition for legal residency while staying here even through marriage unless you have a 245-I waiver. I believe the new ruling helps to make “illegal” less of a “permanent” scarlet letter. With the new ruling, people who entered legally and overstayed their visas would be allowed, under some circumstances, to pursue legalization from within the United States. A lot of mixed immigration families may be able to sigh in relief at the decision. I do wonder about those that have already had their petitions denied and deported. I suppose the law is not retroactive so tough luck?

Long time coming!

Supreme Court opinion for the case is here

PTI – The Press Trust of India Ltd.

June 17, 2008

US top court eases rules for foreigners seeking legal status.

LENGTH: 287 words

US top court eases rules for foreigners seeking legal status

Washington, June 17 (PTI) — In a development that could ease up immigration rules, the top court in the US has ruled that foreigners who overstay their visas can continue to remain in the country to seeklegal status.

Under “some” circumstances, people could withdraw their voluntary agreement to leave the US and continue with an application for lawfulstatus, the top court said in a verdict yesterday.

The ruling, jurists have pointed out, would particularly benefit those married to American citizens.

The federal government had earlier taken a position that intendingimmigrants who left the US would no longer be eligible for a “green card” and if they stayed in the US longer than authorised, they wouldbe disqualified.

“The Supreme Court rejected the government’s hard-line approach toimmigrants and to lawful immigration options,” said Nadine Wettstein, legal director of the American Immigration Law Foundation (AILF), which filed a “Friend of the Court” brief in the case.

“The Court correctly held that immigrants’ rights under the law must be respected,” Wettstein added.

“This decision should send a message to the government,” added Beth Werlin, AILF’s Litigation Clearinghouse Attorney and co-author of AILF’s Amicus Curiae brief.

“The government should have reached this conclusion on its own years ago, rather than fighting through the courts.” The decision resolved majority of visa-related conflicts in the lower courts and involved two parts of the immigration law. One allows people to avoid being deported by agreeing to leave the country voluntarily and the other allows immigrants ,who overstay their visas, make their case to immigration officials.

The M Word – California Supreme Court Hears Arguments for Gay Marriage

// March 4th, 2008 // No Comments » // All things LGBT, Gender


It still blows my mind that we have to “argue” about basic fundamental human rights.

I thought the nation decided close to 50 years ago that “separate but equal” is not equal. How can the idiot judges on the California Supreme Court sit there like pompous asses and state “isn’t domestic partnership and marriage the same thing? Aren’t the rights conferred to same-sex couples in California equal to rights granted to heterosexual couples?”

For California and for the court, it really bears down to the M word – “marriage” … Is it Constitutional for the state of California to give the rights of marriage to same-sex couples but NOT call it marriage? Does this separate treatment violate equal protection laws? The answer should be obvious. Listen to the opponents of marriage – they hue and cry that allowing same-sex couples to marry degrades the SACRED institution of Marriage. So in effect, the State of California is denying a suspect class, a CERTAIN category of people, right to participate in a SACRED institution. It boils down to discourse — the power of the M word – “marriage” and to deny same-sex couples the right to that discourse, is to render them powerless and treat them like second-class citizens.

I still think this entire matter is ludicrous and NOT a matter of public concern. We should really move towards abolishing the institution of marriage altogether and state involvement in our bedrooms. It’s a wanton distraction from more pressing matters, hello war, hello poverty, hello homelessness, hello immigration, hello education … Goodness.

WHY ARE WE EVEN HERE?