Enemy Combatant
Thursday, August 12, 2004
The "De-Processing" Of Due Process
I've been mulling over the California Supreme Court's decision today, particularly the part invalidating those same-sex marriages already performed. I have to say I've got a newfound respect for Justice Werdegar (a Pete Wilson appointee, believe it or not), who wrote this in dissent:
I do not join in the majority’s decision to address the validity of the marriages already performed and to declare them void. My concern here is not for the future of same-sex marriage. That question is not before us and, like the majority, I intimate no view on it. My concern, rather, is for basic fairness in judicial process. The superior court is presently considering whether the state statutes that limit marriage to "a man and a woman" (e.g., Fam. Code, § 300) violate the state and federal Constitutions. The same-sex couples challenging those statutes claim the state has, without sufficient justification, denied the fundamental right to marry (e.g., Zablocki v. Redhail (1978) 434 U.S. 374, 383; Loving v. Virginia (1967) 388 U.S. 1, 12; Perez v. Sharp (1948) 32 Cal.2d 711, 714-715) to a class of persons defined by gender or sexual orientation. Should the relevant statutes be held unconstitutional, the relief to which the purportedly married couples would be entitled would normally include recognition of their marriages. By analogy, interracial marriages that were void under antimiscegeny statutes at the time they were solemnized were nevertheless recognized as valid after the high court rejected those laws in Loving v. Virginia. (E.g., Dick v. Reaves (Okla. 1967) 434 P.2d 295, 298.) By postponing a ruling on this issue, we could preserve the status quo pending the outcome of the constitutional litigation. Instead, by declaring the marriages "void and of no legal effect from their inception" (maj. opn., ante, at p. 70), the majority permanently deprives future courts of the ability to award full relief in the event the existing statutes are held unconstitutional. This premature decision can in no sense be thought to represent fair judicial process.
The majority asserts that "it would not be prudent or wise to leave the validity of these marriages in limbo for what might be a substantial period of time given the potential confusion (for third parties, such as employers, insurers, or other governmental entities, as well as for the affected couples) that such an uncertain status inevitably would entail." (Maj. opn., ante, at pp. 75-76.) Nowhere in the opinion, however, does the majority note that any same-sex couple has filed a lawsuit seeking the legal benefits of their purported marriage. Nor is the absence of such lawsuits surprising, since any reasonable court would stay such actions pending the outcome of the ongoing constitutional litigation.
The majority’s decision to declare the existing marriages void is unfair for the additional reason that the affected couples have not been joined as parties or given notice and an opportunity to appear. On March 12, 2004, we denied all petitions to intervene filed by affected couples. That ruling made sense at the time it was announced because our prior order of March 11, 2004, which specified the issues to be briefed and argued, did not identify the validity of the existing marriages as an issue. Only on April 14, 2004, after having denied the petitions to intervene, did the court identify and solicit briefing on the issue of the marriages’ validity. To declare marriages void after denying requests by the purported spouses to appear in court as parties and be heard on the matter is hard to justify, to say the least.
The majority counters that "the legal arguments of such couples with regard to the question of the validity of the existing same-sex marriages have been heard and fully considered." (Maj. opn., ante, at p. 74.) But this is a claim a court may not in good conscience make unless it has given, to the persons whose rights it is purporting to adjudicate, notice and the opportunity to appear. This is the irreducible minimum of due process, even in cases involving numerous parties. (See Mullane v. Central Hannover Tr. Co. (1950) 339 U.S. 306, 314-315.) Amicus curiae briefs, which any member of the public may ask to file and which the court has no obligation to read, cannot seriously be thought to satisfy these requirements. The majority writes that "requiring each of the thousands of same-sex couples to be named and served as parties in the present action, would add nothing of substance to this proceeding." (Maj. opn., ante, at p. 73.) Of course, the same argument can be made in many class actions with respect to the absent members of the class, but due process still gives each class member the right to notice and the opportunity to appear. (Mullane v. Central Hannover Tr. Co., supra, 339 U.S. at pp. 314-315.) Here, notice has been given to none of the 4,000 affected couples; and even the 11 same-sex couples who affirmatively sought to intervene were denied the opportunity to appear. (Maj. opn., ante, at p. 74.) What the majority has done, in effect, is to give petitioners the benefit of an action against a defendant class of same-sex couples free of the burden of procedural due process. If the majority truly desired to hear the views of the same-sex couples whose rights it is adjudicating, it would not proceed in absentia.
Aware of this problem, the majority offers a specious imitation of due process by ordering the city to notify the same-sex couples that this court has decided their marriages are void, and to "provide these couples an opportunity to demonstrate that their marriages are not same-sex marriages" before canceling their marriage records. (Maj. opn., ante, at pp. 80, 81; see also id., at p. 74.) This procedure may prevent the city from mistakenly deleting the records of heterosexual marriages, but it cannot benefit any same-sex couple. Notice after the fact that one’s rights have been adjudicated is not due process.
What I learned in law school was that "due process" requires, at a minimum, "notice, and an opportunity to be heard." Married gay and lesbian couples in California didn't get that today.
