MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. Same sex couples in California who want to get married will now have to wait indefinitely. A new stay has been placed on the ruling that overturned Proposition 8. Supporters of the ban on gay marriage were granted the stay by a panel of judges on the Ninth Circuit Court of Appeals. This may be just the beginning in the legal maneuverings surrounding the Proposition 8 appeals process. Joining us now to explain what’s going on is These Days legal analyst Dan Eaton. Good morning, Dan.
DAN EATON (KPBS Legal Analyst): Good morning, Maureen.
CAVANAUGH: Let’s go back to the first stay of this ruling, okay. On August 4th, after the ruling that overturned the ban on same sex marriage, federal Judge Vaughn Walker issued only a brief stay of his order. What was the judge’s ruling? Why did he grant only this limited stay of his order striking down Prop 8?
EATON: Remember, Maureen, that the Prop 8 supporters were seeking a broad stay pending all appeals. That was what was before Judge Walker and what Judge Walker had to consider, he had to consider four distinct things. One, he had to consider whether Prop 8 supporters were going to – were likely to win their appeal. Two, whether Prop 8 supporters would be injured beyond repair if a stay were not issued. Three, whether the stay would substantially injure others affected by the order striking down Prop 8. And then, four, whether the stay was in the public interest. The first two factors are really the most important, which is to say whether Prop 8 supporters were likely to win their appeal and, two, whether Prop 8 supporters would be injured if a stay were not issued.
CAVANAUGH: And so, as we said, he issued this very limited stay of his order striking down Prop 8. Why did he say he thought the Prop 8 supporters were unlikely to, you know, satisfy these four requirements?
EATON: Maureen, first of all, he didn’t think it was likely they were going to win the appeal…
CAVANAUGH: Umm-hmm.
EATON: …and he focused on a very specific doctrine in the law called standing. In order to have standing to press a claim or the right to press a claim, you have to show in federal court under Article III of the United States Constitution that you have suffered concrete injury. It’s a very clear standard. And he said, look, this order that I issued, the 138 page order, doesn’t require Prop 8 supporters to refrain from doing anything, it only requires the attorney general and the governor to refrain from enforcing Prop 8 sup – Proposition 8, and the attorney general and the governor have indicated they support Judge Walker’s order. So, they said – he said, it’s a threshold matter. I have a question whether Prop 8 supporters are even going to have the right to appeal my order in the first place. And then, of course, he said, even if they do have standing, or the right to press his appeal, I’m pretty confident my ruling is going to stand. He said, quote, proponents had a full opportunity to provide evidence in support of their position and, nevertheless, failed to present even one credible witness on the government interest in enforcing Proposition 8, closed quote. So he said, I don’t think you have the right to appeal this, Prop 8 supporters, because you’re not the ones who have to enforce it or not enforce it and have to follow my ruling. But if you did, my ruling’s probably going to stand, so that factor at least weighs heavily against granting a broad stay that you’re requesting.
CAVANAUGH: So what Judge Walker did was basically he limited his stay until 5:30 in the afternoon on…
EATON: I thought it was five o’clock actually.
CAVANAUGH: Five o’clock in the afternoon tomorrow. That was supposed to be…
EATON: Wednesday, right.
CAVANAUGH: It was supposed to be the time at which…
EATON: Exactly.
CAVANAUGH: …his ruling went into effect but late yesterday afternoon the Ninth Circuit granted a broader stay pending appeal in a brief order. Tell us about the appeals panel’s action.
EATON: Very interesting. It was a three judge Motions panel. Understand, this is not the same panel that ultimately will hear the merits of the appeal. But it was a three judge panel and I looked at the composition of the August Motions panel and it included Sidney Thomas. Why should that name sound vaguely familiar? Because he was one of the judges out of Montana that President Obama considered for the recent Supreme Court vacancy that went to Elena Kagan. So that was kind of interesting. But it was a brief two-page order that was unsigned, so we don’t know who wrote it. But the three judge panel designated to hear motions for a stay of this kind said, look, we’re going to stay this ruling at least until the full – at least until the Ninth Circuit panel considers the merits and makes a ruling. So – But there were two interesting things about this stay order even though it was only two pages long, Maureen. The first interesting thing was that the court ordered expedited or quickened or a speedier than normal briefing of the appeal. What does that mean? It means the first brief is going to have to be filed by Prop 8 supporters in September, September 17, 2010. An oral argument on this whole appeal is going to be set the week of December 6th, 2010. That’s much faster than these things normally proceed.
CAVANAUGH: And what’s the second interesting thing?
EATON: The second interesting thing was that the panel, the motions panel also focused on the question of standing. And usually they just say, all right, we’re going to stay it and the people who are appealing can say whatever they want. What the Motions panel said in their brief order was, look, among whatever other issues you want to raise, it’s important that you explain to us in your opening brief why you have standing to press this appeal or, as the court panel said, the Ninth Circuit Panel said, you have to explain why, quote, this appeal should not be dismissed for lack of Constitutionally required standing. That’s what – So among the other issues, the Prop 8 supporters are going to have to show why they have the right to press this appeal when the governor and attorney general both said, look, we don’t support Prop 8, we’re ready to comply with Judge Walker’s order.
CAVANAUGH: I’m wondering, if standing, this crucial gateway issue, is still so much in the air when it comes to the Prop 8 supporters, you know, going on with this appeals process, why do pundits just automatically think that this is going to wind up in the Supreme Court?
EATON: Well, it’s an interesting question. I think they view it as winding up in the Supreme Court simply because of the importance of the issue because after all is said and done, Maureen, this issue raises the question of whether the United States Constitution requires states, notwithstanding their own laws, to recognize same sex marriage. When all is said and done, when you get past all the evidence, whether it’s passed by initiative or whether it’s passed by the state legislatures and so forth, the critical issue is whether a state – whether states, under the XIV Amendment of the United States Constitution, as a matter of equal protection or due process or both, are required to recognize same sex marriages as a matter of right for gay men and lesbians.
CAVANAUGH: Okay, so could the litigants that brought the lawsuits, in other words, the people who support Judge Walker’s ruling in allowing same sex marriage to start again in California, could they have appealed this stay?
EATON: They could have, Maureen, and here it’s – and what would’ve happened is had they lost this stay request from the Ninth Circuit, they would’ve gone to the Circuit Justice. Each of the nine Justices of the Supreme Court are given responsibility oversight for a particular circuit, a court of appeals, and Justice Anthony Kennedy, who is from California actually, has responsibility for the rather large Ninth Circuit. Why should this process of appealing to Justice Kennedy sound vaguely familiar to people who follow this segment and have better memories than I do actually, because this very process was followed in connection with the Mount Soledad cross, Maureen. What happened was this. A Judge Thompson, the San Diego federal judge, had issued an order, remember, some years ago, ordering – issuing a $5,000 fine for every day that the cross stayed up. And so obviously the supporters of the cross asked him to stay the order. He refused. Then supporters of the cross appealed to the Ninth Circuit and asked for a stay of this order and Ninth Circuit said no. Here, of course, they said yes, so they spared the Supreme Court the problem of intervening. But then the supporters of the cross appealed to Justice Kennedy, ultimately, who issued a stay and then there was a broader order issuing the stay. Of course then, the way this story ends, at least for now, is that Judge Larry Burns, another federal judge, decided that the cross – the presence of the cross is not inconsistent with the federal Constitution.
CAVANAUGH: But in this particular case, the Prop 8, the people who are against Prop 8, who want same sex marriages to resume in California, decided not to take that step, that extra step.
EATON: They did. They just said, you know what, we’re not going to press this. The court has ordered expedited briefing. This is going to be considered soon enough. But the interesting thing, of course, is that even ultimately if the Ninth Circuit agrees with Judge Walker and upholds his ruling, there still may be yet another stay.
CAVANAUGH: I see.
EATON: And that, of course, would come from the Supreme Court if the Prop 8 supporters appeal. But either way, you know, it’s going to be very interesting to watch how this whole thing unfolds. But we could have a ruling from the Ninth Circuit at the early part of next year, Maureen. This is moving at a very fast pace.
CAVANAUGH: And just for our audience, let me talk about those steps that you outlined just a moment ago. Prop 8 proponents opening brief must be filed by September 17th. All briefing must be complete by November 1st, and oral arguments will be heard in San Francisco during the week of December 6th. Let’s move on to another very, very hot topic and that is Ariz…
EATON: We’re not avoiding controversy this morning, Maureen.
CAVANAUGH: Arizona’s immigration law. Now a federal judge has blocked certain provisions of that law from going into effect. Dan, first tell us about the Arizona law.
EATON: Sure. It’s SB-1070. People don’t normally know shorthand of laws but somehow people know SB-1070. And, of course, that’s the law where Arizona took steps, in effect, to enforce or bolster federal immigration control efforts. And of course the provision that has attracted the greatest attention is a provision that would require—not just allow but require—law enforcement officers who engage in a lawful stop of any person where the officer has reasonable suspicion to believe that the person is present in this country illegally to actually consider whether – to consider whether that person is an undocumented immigrant. And actually to go ahead and try to determine whether that person is an undocumented immigrant, take that step and try to figure that out if they have reasonable suspicion to believe that the person they’ve stopped, regardless for what reason, jaywalking or walking your dog without a leash, to determine whether that person is an undocumented immigrant.
CAVANAUGH: Now I know that the law, the pending law, created a lot of controversy but who actually wound up suing to block this law and why?
EATON: The federal government, of course, wound up suing to block the law, and it’s important to understand, Maureen, that the federal government did not sue at least in the specific briefing to block the entire law, only specific provisions. So the – Judge Bolton, Susan Bolton’s order does not block the entire SB-1070. It turns out to block a lot of the controversial aspects of it. But the federal government sued to block. Well, why would the federal government sue to block a state law regarding immigration that’s supposed to help the federal government do its job? Because the federal government says this interferes with the federal government’s role, exclusive role, in enforcing the immigration laws as set forth in the United States Constitution. And they said, look, if we have the state law, SB-1070, with its various requirements, it’s going to interfere with our ability to do our job in controlling our borders. Now, of course, the people who support the Arizona law would say, well, do your job then and we wouldn’t have to pass SB-1070. But the federal government at least said, no, this is interfering with something that exclusively ours. We can’t have a patchwork of immigration laws.
CAVANAUGH: So what parts of this law did the government say interfered with their rights and what parts did Judge Bolton block?
EATON: Well, the first thing the federal government sought to block was this requirement that law enforcements try to determine the immigration status of anyone stopped lawfully. And the judge blocked that for two reasons. First, Judge Bolton said – she concluded that the provision would make even immigrants who are here legally and even perhaps United States citizens constantly subject to having to demonstrate to non-federal officials that they are here legally. And, as I said, that would apply to even the most common stops like for jaywalking or for walking a dog without a leash. That would be contrary, said the federal government, to federal immigration policy, which is to treat all immigrants here the same, regardless of where they are found in the country. The judge concluded that the provision would impose an unacceptable burden, not on undocumented immigrants, that wasn’t her concern, but on immigrants who were here legally. So, second, the government said the judge held that the flood of requests for immigration status verification would interfere with the federal government’s law enforcement priority which is to use these verification requests for issues of national security like catching people who are terrorists and are trying to do bad things to the citizens of this country.
CAVANAUGH: How about the part of the Arizona law that made it a crime for an undocumented immigrant to apply for a job?
EATON: Yeah, the judge also blocked that provision, Maureen, and here is why, because the federal government has a federal law, the Immigration Reform Control Act, which specifically deals with how you – the undocumented immigrants in the employment – in the employment context. Specifically, that law, of course, has certain employer sanctions. The focus really is on people who hire them but it also makes it a crime, for example, to – you have to fill out a form, everybody knows the I-9 form, attesting that the documents you’re submitting are authentic and that what you are saying on the I-9 form is true. They said, look, we have a comprehensive scheme dealing with employment in the federal context and we can’t have states, for example, supplementing that or even interfering with it by making it a state crime even to apply for work if you are an undocumented immigrant. And so, again, there’s this clash between state policy and federal policy.
CAVANAUGH: Now are there parts of the Arizona law that were challenged by the federal government but that Judge Bolton concluded might, indeed, be Constitutional?
EATON: Yeah, and the one of – There were two which the federal government specifically challenged that Judge Bolton said, ehh, I don’t see… And remember this was a preliminary order so all she was deciding was whether the federal government was likely to prevail. But she said one of them I don’t see that the federal government is likely to win and that was one where Arizona made it a state crime to transport those who are in this country illegally inside of the state. She said – inside of the state of Arizona. She said, look, that doesn’t have anything to do with regulating who should or should not be in this country so, therefore, I’m not going to issue an order blocking that.
CAVANAUGH: And so why didn’t the judge, if there was so much about this law that was really sort of dicey, why didn’t she just throw the whole law out?
EATON: Well, because there is an obligation that federal judges have not just to lightly throw out state-passed laws. There has to be some respect to the legislature, and particularly in this case, Arizona law had what’s called a severability provision. What does that mean? It means that there was a provision in the law that said if parts of this law are found to be unconstitutional, the rest of the law can go forward and be fully enforced. And that’s what the judge was looking at in deciding to enforce the – in deciding to allow the rest of the law to remain in place.
CAVANAUGH: And we have a caller on the line who wants to know whether, say, the police in totalitarian countries have the right to stop people for their documents but we don’t have that right here because it would trample on our freedom. Is there anything about actually asking for documents that would be unconstitutional?
EATON: Well, except that there is a requirement, of course, that certain classes of immigrants carry their papers on them. The difference is that Arizona was requiring that police officer – or, law enforcement officers actually – requiring them, pursuant to any lawful stop, actually ask for their papers. And what Judge Bolton pointed out was that there are certain classes of immigrants, and I won’t go into the specific details of them, who normally wouldn’t carry their papers and, of course, United States citizens never do. We have our passport when we travel abroad. And so the idea is that this would burden those classes of lawful immigrants, for example those who may have certain kinds of visas, constantly to produce their papers. Again, the burden was not so much that she was focusing on was on undocumented immigrants because they don’t – they really shouldn’t be in this country in the first place. The burden was on people who are here who might be burdened because of this reasonable suspicion that they are not here legally and asked to produce papers all the time.
CAVANAUGH: And finally on this topic, you said this was a provisional ruling. Is – should we expect another ruling on SB-1070?
EATON: Well, yeah. Well, there will be a full trial assuming that the case isn’t settled. And eventually the judge will have to make a definitive ruling as to whether these provisions are unconstitutional, not unlike the ruling, of course, that Judge Walker made in connection with the constitutionality of Proposition 8.
CAVANAUGH: Let’s move on. Our last topic comes from Michigan but it has implications for California…
EATON: It does.
CAVANAUGH: …especially as voters consider a ballot proposition this November to legalize the use of marijuana. It concerns employers and the right to terminate employees using medical marijuana. In late June, a Michigan man sued Wal-Mart saying that he was wrongfully fired for failing a drug test that indicated he had used marijuana. He had a prescription for marijuana to treat pain from cancer, and medical marijuana use is allowed in Michigan as it is in California. What are the facts of this case, Dan?
EATON: Yeah, Joseph Casias was a Michigan man who had worked at Wal-Mart for several years when in 2009 he twisted his knee at work pushing a cart. He was – had managerial responsibility for inventory control. And like most – like many employers, Wal-Mart requires drug testing when you have a workplace injury. There was a test. The – Mr. Casias submitted to the person who was the testing person his registration, his state registration under the state’s marijuana law, prescription marijuana law. Unsurprisingly, he tested positive. And so what happened, ultimately was he was fired for the positive drug test, notwithstanding the fact that he had a card indicating that he was registered for the use of pain from cancer, as it turns out, to treat his condition. But they said, no, we’re going to have to terminate you.
CAVANAUGH: Now, what was the legal basis for Mr. Casias’ claim? I mean, obviously, he had that card that said he had a right to use medical marijuana so why – what – where’s the disconnect here?
EATON: Well, it’s interesting because unlike California’s initiative that was passed, the Compassionate Use Act that was passed in the 1990s, the Michigan Act, which was passed in 2008 prohibits, and I’m quoting, disciplinary action by a business, closed quote, for the duly prescribed use of marijuana. I’ve actually reviewed Mr. Casias’ complaint, which is online. The Michigan law does not, therefore, allow employers to fire workers who use – does allow, excuse me, does allow employers to fire workers who use marijuana onsite or who come, of course, under – come to work under the influence. But Mr. Casias denied all of that and so he said that by firing me, I was fired for a reason contrary to established public policy, so there was a wrongful termination. That’s the basis of his legal claim.
CAVANAUGH: What does Wal-Mart say?
EATON: Well, Wal-Mart says, look, the federal law still prohibits the use of marijuana and when in doubt, said a Wal-Mart spokesman quoted in an August 3rd, 2010, Wall Street Journal article, he said when it doubt, we’re going to do what’s safest for our customers and our employees, whom they call associates. That’s why they fired him. They called the case a difficult and an unfortunate (sic) but they said they’re going to err on the side of protecting what they consider to be the interest of their customers and their employees.
CAVANAUGH: Now to bring this back to California, I think that maybe a lot of people don’t know this. In 2008, the California Supreme Court specifically addressed whether an employer could fire an employee in this state who used prescription marijuana and you talked about that case before, but remind us what the California Supreme Court held.
EATON: Well, right, regular listeners of this segment know that.
CAVANAUGH: Uh-huh.
EATON: They know to keep good notes. But anyway, yeah, one thing – The case was called Ross versus Ragwire Telecommunications (sic) – Ragingwire Telecommunications, Inc. And the California Supreme Court considered whether the state’s disability discrimination law, Maureen, prohibited an employer from firing a new employee who had tested positive for marijuana but who used the drug under a doctor’s supervision. By a vote of 5 to 2, the California Supreme Court ruled that nothing in the state’s employment discrimination law barred an employer from firing an at-will employee under those circumstances, meaning an employee who was employed and who could be terminated at the will of either the employer or who could leave at will.
CAVANAUGH: And so – But why is that if, indeed, you know, the use of the marijuana was legal under a prescription?
EATON: Well, because the Compassionate Use Act, unlike the Michigan Act, doesn’t say anything about whether employers have to tolerate that, for example, and the state supreme court said that the state’s employment discrimination law, quote, does not require employers to accommodate the use of illegal drugs because it’s still illegal under federal law. The Compassionate Use Act, and I’m quoting from the court’s decision, does not eliminate marijuana’s potential for abuse or the employer’s legitimate interest in whether an employee uses the drug. Marijuana remains illegal under federal law because of its high potential for abuse. So that’s essentially what the court said, it said an employer, therefore, can take it into account in firing an employee.
CAVANAUGH: So can you extrapolate? If, indeed, the voters did vote to legalize marijuana in November, would it be possible that you could still be fired on a regular basis just for testing positive for using marijuana?
EATON: Yes, Maureen, it probably won’t have any effect at all on the California Supreme Court’s decision. Why? Because it remains illegal under federal law even though, of course, in the fall of last year the attorney general announced that he would no longer really take aggressive steps to enforce the law in those states like California and Michigan that allow for the medical use of marijuana. It comes down really to the broad freedom—and this is the area in which I practice, as you know, Maureen—the broad freedom that employers have to terminate employees who are employed at will, which means most employees in the private sector. And that means that employers can fire employees as long as they don’t do it contrary to established public policy. At least as long as federal law continues to make this illegal, the use of marijuana illegal, employers are going to be free to fire employees who test positive for marijuana, assuming, of course, those drug tests are done consistent with an earlier California Supreme Court ruling which requires the employer to have some reasonable suspicion before even administering a drug test to someone who is already an employee.
CAVANAUGH: Fascinating topic, Stan (sic). Thank you so much.
EATON: All right, we got through a lot, Maureen.
CAVANAUGH: We certainly did. I’ve been speaking with These Days legal analyst Dan Eaton. If you have a comment, please go online, KPBS.org/thesedays. Now, coming up we’ll learn about the delicate effort to raise a World War II Navy plame – plane, that is, from the bottom of Otay Reservoir. That’s as These Days continues here on KPBS.
