January 27, 2018

The Constitutional Issues Driving the Events in the Hit Movie, The Post

By Vikram David Amar and Alan E. Brownstein


[Cross-posted from Verdict Justia]


The blockbuster movie The Post tells a very important real-life story about the efforts of the journalists and leaders of the Washington Post (including Katherine Graham, the first female head of a major American newspaper) and the New York Times to publish parts of a collection of classified documents (the “Pentagon Papers”) detailing non-public information about America’s controversial involvement in the Vietnam War. Although some historians might criticize the movie’s exaggeration of the role of the Post vis-à-vis the Times in getting the documents published, the movie has many strengths: a great story, a taut script, and very fine acting. But one weakness is its failure to explain the legal backdrop against which the battles over publication of the Pentagon Papers were waged. We think this is a shame, since movies and TV shows about important historical episodes like this one represent ideal opportunities to painlessly educate a wide swath of Americans on important—albeit somewhat technical—aspects of the First Amendment and other provisions in the Constitution. For this reason, in the space below we introduce and analyze the two main legal doctrines that lie behind much of the action in this worthwhile cinematic drama.


Spoiler alert: We begin with a brief summary of the movie’s storyline. But the movie and the events it depicts are drawn from recent American history with which we hope many Verdict readers would already be familiar; in any case, the real value of the film lies in its character development and detailed storytelling, not in any surprise plot twists or endings.


In The Post, Katharine Graham (played by Meryl Streep), the publisher of the Washington Post, and Ben Bradlee (played by Tom Hanks), the editor-in-chief of the newspaper, confront an extraordinary situation. During the Vietnam War, while Richard Nixon was president, Daniel Ellsberg provided photocopies of thousands of classified documents to the New York Times. These documents, eventually known as the Pentagon Papers, chronicled the United States’ involvement with Vietnam for decades. The documents revealed numerous misrepresentations by the government to the American people about the causes of the war, the success of military operations, and the likelihood that the war could be won. The Times published the content of some of these documents, but stopped doing so when the United States government, asserting alleged violations of the Espionage Act and inherent executive authority to protect the national security of the country, went to federal court and obtained an injunction prohibiting further publication.


Shortly thereafter, Washington Post reporters obtained copies of the Pentagon Papers. At this point, Graham and Bradlee had to decide themselves whether to continue publication of the documents. The arguments against doing so were formidable. The Washington Post corporation was about to issue a public stock offering, and potential violations of federal law would jeopardize its access to capital it desperately needed. There was also the danger that publication would risk harm to national security and undermine American military operations in Asia. Finally, the Post’s lawyers explained that the Post may in fact be covered by the terms of the injunction that had been issued against the Times, and that if the Post was covered by the order, Graham and Bradlee themselves would risk being held in contempt of court and sent to jail if they authorized the Post to print enjoined material.


The argument on the other side consisted, of course, of the responsibility of the press to inform the public of government abuses of power so that political leaders can be held accountable for their conduct. But would the First Amendment protect American newspapers in a situation like this one where national security concerns were at stake? Graham agonized over the issue, but ultimately decided to publish the Pentagon Papers. From that point on, the movie raced to an expedited hearing before the United States Supreme Court on these matters, followed shortly by the dramatic announcement in 1971 that the Court decided, 6–3, to rule in favor of the Times and the Post.


The Post is a fine movie. But viewers are left unclear about exactly what legal issues the Court resolved in this dispute. Did the justices hold that newspapers can never be prohibited from, or punished for, publishing classified information? If so, why not? Further, what happens if a newspaper violates an injunction prohibiting the publication of a news story and that injunction is ultimately held to be unconstitutional? Would such a finding of unconstitutionality insulate a newspaper’s publisher and editor from being found in contempt of court and punished for their actions? With this background in mind, we are now in position to explain the key legal doctrines/principles that underlie much of the movie’s action.


The Rule Against Judicial Prior Restraint

The key issues—whether the Times and Post had the right to publish the classified materials and whether the Supreme Court should affirm an injunction blocking publication of these materials—turn in large part on something known as the rule against prior restraint. This rule, going back hundreds of years, tells courts to be very wary of government attempts to prevent the utterance or publication of speech by prior censorship of speakers. That is ultimately the basis on which the Supreme Court, by a 6-3 vote, rejected the government’s request to block further publication of the Pentagon Papers.

Before the Pentagon Papers case, the most famous prior restraint ruling by the Court was probably Near v. Minnesota, a 1931 case in which the Court held it was unconstitutional for a state law to authorize and a state court to enjoin the publication of “a malicious, scandalous and defamatory newspaper, magazine or other publication” determined to be a nuisance. As the majority opinion in Near made clear, a primary purpose of freedom of the press was to protect publishers against government licensors authorized to review and censor expressive materials before publication. Such prior restraints were particularly pernicious if they were employed by government to prevent the publication of commentary critical of official conduct.


To the majority, the judicial injunction issued against a scandalous and defamatory newspaper in the Near case constituted a prior restraint against speech. While such injunctions were not absolutely prohibited by the First Amendment, the Court held that they should be reserved for only the most exceptional of cases. The defamatory content of future articles could very well expose the publisher to punishment for libel after the fact, but that likelihood, standing alone, could not constitutionally justify judicial censorship preventing continued publication of a newspaper containing such content.

Near was a 5–4 decision. The four dissenting justices pointed out that the defendant’s periodical had been determined to be scandalous and defamatory by the court that issued the injunction and was only restricted to the extent the court concluded that future publications were similarly unlawful. The dissenters believed that court orders of this kind (as distinguished from executive branch actions of censorship), should not be considered unconstitutional prior restraints of speech. Unlike Near, in New York Times Co. v. United States—the 6–3 Supreme Court decision hailed in The Post—the Court focused on injunctions against particular articles, the content of which was known to the courts when the injunctions were issued. Here the Court echoed and solidified Near by saying that a judicial injunction against specific speech “carries a heavy burden of showing justification for the enforcement of such a restraint,” a burden not met in the case before it.


The rule against judicial prior restraints is to some extent curious. A near-absolute (no pun intended) presumption against judicial orders restricting particular words or publications that are about to be expressed certainly makes sense when the speech at issue is fully protected by the First Amendment, and any after-the-fact attempts to punish its utterance/publication by civil damages or criminal fines or imprisonment would also be prohibited. The idea that speech is fully protected but could nonetheless be blocked by a court would make little sense.


But the rule against prior restraints is also employed in settings where the courts assume, or have determined by careful examination, that the proposed speech in question is not protected by the First Amendment, and could lawfully be punished after its utterance. Why do we nonetheless insist that such speech cannot be blocked by judicial order before the fact? Wouldn’t it make sense for us to block speech that is unprotected and will likely cause harm to individuals after it is uttered or published? After all, damages rarely put Humpty Dumpty back together again, especially when reputations and other dignitary interests are at stake, as they often are with regard to unprotected speech.


What explains this seeming oddity? One possibility is that after-the-fact damage actions and criminal sanctions must go through a process and involve juries in a way that makes us feel more comfortable than we feel when judges enforce their own judicial orders without jury involvement, which had been the historical practice of enforcing court orders. (More on the power of judges to enforce their own edicts below.) Another possibility is that speech often seems scarier before it is uttered than after, and if we allow judges to block speech based on reasonable fears of the harm it might cause, a great deal more speech will be blocked than would be lost if judges allow the speech to happen and let others decide down the road whether the feared harm materialized (or was sufficiently likely to materialize) such that civil or criminal sanctions are appropriate. The Pentagon Papers may itself be an example of this phenomenon; notwithstanding the grave predictions of harm the government made when it tried to get an injunction against publication, after the materials were more fully published, the government did not make serious efforts to punish the newspapers for any harm they caused.


The So-Called Collateral Bar Rule

The stakes for whether an injunction got issued and upheld in The Post were very high indeed. One reason is what we just mentioned: the idea that before-the-fact restrictions on speech are more likely to be adopted than after-the-fact punishments of speech are to occur, because the speech that is uttered often turns out to be relatively harmless after it is expressed. So some speech that might seem so dangerous that judges would want to block it would turn out after-the-fact not to support any punitive civil or criminal sanctions. But to fully understand why the issuance of an injunction is particularly problematic for a would-be speaker, one must understand another legal doctrine—which is not limited to free speech cases but finds special application there—known as the collateral bar doctrine.


Under this doctrine, if a person violates a judicial injunction, whether that injunction looks unwise after the fact—and even if a higher court determines that the injunction was improper and illegal from the outset—the person violating it can be punished, even criminally, for contempt of court, so long as the court that issued the injunction had jurisdiction to hear the case. Perhaps the most famous dispute applying the collateral bar rule is Walker v. Birmingham, a 1967 ruling involving efforts by civil rights protestors in Birmingham, Alabama, to hold parades, rallies, and other expressive events. Upon learning of the planned events, Birmingham officials got a state court to issue an injunction against the protests, on the ground that the protestors had not obtained the required permits. Believing that the permitting scheme—and the judicial injunction that essentially incorporated it—was vague, overbroad and in other respects in violation of the First Amendment, the protestors went ahead with their events. The demonstrators were held in contempt and punished by the state court that had issued the injunction. The Alabama Supreme Court affirmed the punishment, and the US Supreme Court, in a 5–4 decision, also affirmed.


According to the Court, even though “the breadth and vagueness of the injunction itself” raised substantial concerns about its constitutional validity, the proper course of action for the protestors was to comply with the questionable injunction and appeal it (perhaps on an expedited basis) up the appellate judicial ladder. According to the majority, “respect for the judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.”


Notice that the collateral bar rule, as it was described in Walker, treats jurisdictional mistakes by courts as being more serious than federal constitutional mistakes: if a court lacks jurisdiction, you may be able to flout its orders, but if a court has jurisdiction and violates your federal constitutional rights, you must obey the order. It is hard to know why jurisdictional limits are more important than constitutional ones.

Notice also that Walker treats unconstitutional actions by judges more respectfully than unconstitutional actions by the legislative or executive branches. As the dissenters in Walker powerfully pointed out, if Congress passes a law, or the president issues an executive order, and you think the statute/order is unconstitutional, you can (assuming you can show a ripe case) go to court to get the statute/order struck down. But you can also, if you want to, simply flout the statute/order, and then assert its unconstitutionality when you are prosecuted for violating it. To be sure, you are running a risk; if you are wrong (or a court disagrees with you) about the statute/order’s unconstitutionality, you can be punished. But if you are right in your understanding of the Constitution (and the courts agree), you will be excused for violating the unconstitutional edict of Congress or the president.


But under the collateral bar rule, if you violate an injunction that you (rightly) think violates the First Amendment (or some other aspect of the Constitution), even if the Supreme Court agrees with you that the trial court violated the Constitution in issuing the injunction, you can still be punished for violating the court order that turns out to be illegal. Thus, the only safe way to challenge an arguably unconstitutional injunction is to appeal it—at best seeking expedited review.


Why do we force people to appeal judicial injunctions but not file suit and appeal disputes over statutes and executive orders? Why is the “civilizing hand of the law” more present when courts issue their rulings based on their views of the law than when other actors express their vision of what the Constitution permits?


Perhaps courts think that other branches no longer consider constitutional permissibility when they act; they refer all such questions to the courts. Maybe that’s true, but if so it is true in part because of doctrines like the collateral bar rule. Relatedly, perhaps courts believe that they are less likely to misinterpret the Constitution less than are Congress and the president; this is an empirical question that would benefit from data on how often trial courts are overturned on constitutional grounds, and how often statutes and executive orders are ultimately invalidated by courts. Or perhaps judges simply want people to respect their handiwork in particular; there are many doctrines (absolute judicial immunity, the failure of the Supreme Court to be legally bound by recusal statutes, etc.) that might be understood to reflect an attitude of judicial privilege or perhaps even judicial arrogance.


Regardless of its soundness, the collateral bar rule makes the issuance vel non of the speech-restrictive injunction in cases like the Pentagon Papers dispute hugely important. And this backdrop legal rule, along with the rule against prior restraints, was animating a good bit of the motives, moves, and countermoves that were documented—albeit without much legal explanation—in the worthwhile drama, The Post, recounting a crucially important episode in American history.

January 24, 2018

14th Annual Water Law Symposium: “The Future of California’s Water Infrastructure”

By Richard Frank

On Saturday, January 20th, I had the opportunity to accompany a number of King Hall water law students to the 14th Annual Water Law Symposium, held this year at UC Berkeley. The symposium is an extraordinary collaboration among six different Northern California law schools--including King Hall. Remarkably, this annual event is wholly student-organized and -produced, and recently won an American Bar Association award as the best law student-organized event in the nation. It's also become California's premier water law conference.

The theme of this year's symposium was "The Future of California's Water Infrastructure"--a most timely topic given the 2017 failure of the Oroville Dam and other water-related infrastructure challenges. King Hall's contribution to the symposium took the form of organizing and presenting a panel on "The Challenges of an Evolving Climate: A Case Study of the Impacts of Wildfire on California's Water Infrastructure."

Special kudos to King Hall water law student Ellen Simmons '19, one of the organizers of the UC Davis panel at the Symposium. When one of the panelists was forced to cancel at the last minute due to a personal emergency, Ellen stepped up, assumed the panel moderator's role and performed flawlessly in that capacity. Similarly, King Hall faculty colleague Camille Pannu, Director of the Water Justice Clinic, graciously did double duty at the symposium: in addition to speaking on the King Hall-organized panel with Ellen, Professor Pannu pinch-hit for a UCLA Law School colleague who was unable to travel to UC Berkeley due to the Montecito mudslides and subsequent closure of Highway 101.



January 24, 2018

What Trump Can Teach Us About Con Law: Defamation

By Professor Elizabeth Joh

[Cross-posted from "What Trump Can Teach Us About Con Law."]

President Trump likes to threaten the press with libel lawsuits. What does the Constitution have to say about defamation and the press? Find out more in "Defamation," the latest installment of "What Trump Can Teach Us about Con Law," a podcast featuring Professor Elizabeth Joh with Roman Mars, host and creator of "99% Invisible." The podcast aims to "take the extreme actions of the President of the United States and channel that chaos into learning our Constitution like we never have before."


January 19, 2018

States Should Tax the Over Two Trillion Dollars About to Be Deemed Repatriated (But Many Are Not Going To If They Do Not Act)

Here is the Why and the How (roughly)

By Darien Shanske

[Cross-posted from Medium.]

Under its pre-2018 international tax regime, the United States attempted to tax the income of multinational corporations on the basis of their worldwide income. To take a non-random example, the United States sought to tax Apple on its income earned all over the world. The old US international tax regime did permit multinational firms to defer payment of tax on the income they earned oversees - defer until the firm brought the money home. So, until Apple Germany sent home its profits to Apple US, those profits would not be subject to tax. Naturally, Apple and other multinationals let a lot - like over 2 trillion dollars a lot - of income hangout abroad.

One strategy, used for instance in 2004, to bring this money home to the US was to offer a special low rate. Repatriate now and pay 5.25% rather than the usual 35% rate. The tax law just passed, commonly referred to as the Tax Cuts and Jobs Act (TCJA), but actually having no name, applies much stronger medicine. Kind of. The TCJA deems all of this income to be repatriated and then applies a tax rate of 8% or 15.5%. The Joint Committee on Taxation estimates that this provision will raise $338 billion over ten years (see bottom of page 566 of the PDF). To return to Apple, this one company alone expects to pay $38 billion on $252 billion in repatriated earnings.

Given that there was no good reason for the tax on this income to have been deferred, this deeming provision is arguably pretty sensible. Alas, several other aspects of this part of the law make it a travesty, as so much else is in The Act with No Name. First, if this income was going to be deemed returned anyway, why not subject it to the actual rate that was avoided (35%) or at least the new very low rate (21%)? Second, this is one-time money. The Obama Administration had planned to commit the money from repatriation to infrastructure, including capitalizing an infrastructure bank. Instead, the Act with No Name uses this one time money for short-term and likely ineffectual economic stimulus.

But all is not lost. As Daniel Hemel has already explained, states should tax the deemed repatriation. The basic reason to do so is the same reason that the states should generally act to undo as much of this law as possible. It is terrible policy; it is squandering our national wealth for no discernible reason. Let's return to infrastructure. On top of the lost opportunity costs from spending this one-time money wisely, and thanks to the Act's exploding the federal debt, the federal government has only made itself less able to serve as a partner to the states in financing infrastructure. States should act to use this one-time money to do the right thing and establish their own infrastructure banks or finance other capital projects. (One other idea: states should consider using the money to start a climate science institute the way California started a stem cell science institute when the federal government dropped the ball in that area during the Bush II years.)

The states should also tax these repatriated earnings because it is efficient for them to do so. Ordinarily, states need to worry about taxpayer response. If this were another tax amnesty, then a state might worry that local firms would not repatriate their foreign earnings at all if the state imposed too high a tax. Or perhaps firms might move. But these earnings are coming home no matter what, and this year. Further, deemed repatriation is a one-time event as the United States fundamentally changes its approach to international taxation. The United States is shifting to a territorial system. The US will not even attempt to tax multinationals on their worldwide income in the future. (To use jargon, this is a rather inelastic tax base.)

States can tax this deemed repatriation, but their current tax systems are not designed to do so - or at least not well. New York just recently reported that it expected to net very little from this repatriation (see pp. 28-29). The details must await another time (or at least the appendix to this blog post), but it should not be surprising that state tax systems are not designed to effectively deal with the deemed repatriation. Consider the tax rate. The rate that states apply to the deemed repatriation should be pretty high. Again, multinationals cannot avoid repatriating this income. But state corporate income tax rates are set taking interstate competition into account. A state that usually taxes corporate income at 5% might well consider a 20% rate on the deemed repatriation appropriate - after all a 20% rate captures most of the windfall given to the corporations by the federal Act.

An even bigger issue is that states generally permit multinational corporations to choose to have only their income generated from the US subject to tax. This is called a "water's edge" election. Again, in the usual context of interstate competition, this makes sense. The law governing this election is complex and differs between states. Suffice it to say that these laws in many cases will permit multinational corporations to avoid paying state corporate income tax on much of their repatriated earnings.

So states should pass new laws that explicitly cope with this situation. (I get into the weeds of what this law might look like in the appendix.)

But can states do this? The answer, I believe, is yes - but with an explanation. States cannot reach out and tax extraterritorial value, but states can tax an apportioned share of the business income of a multinational corporation. They can also tax the non-business income of a corporation at the place of commercial domicile. What does this mean? Take Apple and California. California can say that it is going to tax Apple on its worldwide income, but subject to a reasonable formula that apportions that income to California. Only income generated by Apple as a unitary business can be apportioned. Income earned by Apple in some other way, say as investment income, can be taxed by a business' commercial domicile. In this case, this would also be California.

Apportionment is generally done by a formula. States will typically choose an apportionment formula appropriate to their competitive position. A market state like California apportions the income of multi-state corporations on the basis of sales. A big resource state like Montana only uses the location of sales for 1/3 of its formula, but also uses the location of property and payroll. But in the context of this one time deemed repatriation provision, states need not be overly concerned with choosing a competitive formula. Thus an apt formula might be: The income from the deemed repatriation should be apportioned on the basis of historical sales or property and payroll or state population, which ever is higher.

(As a backstop, the law might provide that any income found not to be apportionable is still subject to allocation.)

But can the rate on this repatriated income be higher than for other corporate income? I think there are good arguments that it can be. After all, states often have different rates for different kinds of income and even different kinds of businesses. See, for example, here and here. And this is leaving to the side the different effective rates that corporations pay based on any credits they might receive - or any penalties that might be imposed. If states can and do have higher taxes on less mobile businesses, on financial businesses and can impose significant penalties, then it seems that a state can also impose a higher rate on this repatriated income, which is a kind of like an immobile windfall, kind of like a financial asset and, though accumulating this revenue was not illegal, the extremes of deferral that some firms went to can be viewed as a kind of behavior that a state could reasonably want to discourage by applying a rate higher than would have been applied if the income had been brought back earlier.

To sum up, states should impose a special tax on the deemed repatriation at a high rate with a favorable apportionment formula. There will be litigation, of course, but I think the states will win.


A first cut at some in the weeds issues. First, one should remember that in a case challenging state taxes in this context, the burden is heavily on the taxpayer. This might turn out to be very important.

Second, one might wonder if states really can change their tax systems to reach this income. Interconnected corporations often dividend income to one another and, when they do, the receiving corporation is often entitled to a "dividends received deduction" on the theory that the corporation sending the income has already been subject to tax. One might think the situation is different when the dividend is coming from abroad, and the matter is tricky, but in at least most cases the Supreme Court has held that domestic and foreign dividends must get similar treatment. Thus, if this repatriation is just a big dividend, then states probably cannot subject it to a special rate. But, unlike in 2004, the deemed repatriation is not categorized by the federal law as a "dividend." Rather, the deemed repatriation is another type of income that multinational corporations can create - "Subpart F Income." Don't ask what that is, but do note that it is not a dividend. Many - perhaps most (feel free to email me with information on this)- states do not tax Subpart F income either, as is the case in NY, but the states could and without violating the equal treatment of dividends rule. For a model of what this could look like, look no farther than California's special rule for the taxation of Subpart F income. (See in particular Cal. Rev. and Tax Code Sec. 25110(a)(2)(A)(ii)). Yes, this is obscure stuff. At least one analysis by a consultant to the California Senate Committee on Governance and Finance seems to agree with my take. This is the analysis of SB-337 (Bates)). California's approach is still far from optimal, but it seems to be the very least that states should do.


January 12, 2018

Immigration Adjudication in an Era of Mass Deportation

By Kevin R. Johnson

[Cross-posted from Immigration Prof.]

Here is an outline of my presentation at the Section on Immigration Law Program on Immigration Adjudication in an Era of Mass Deportation, Association of American Law Schools 2018 Annual Meeting

The program focused on immigration adjudication and its transformation during President Trump's first year in office.  The Trump administration has sought to influence immigration adjudication through 

  1. Increasing cases coming into the removal system through aggressive enforcement; and 
  1. Facilitating the disposition of cases. For example, Attorney General Jeff Sessions' December 2017 memorandum encourages the "prompt resolution of meritless cases." 

These steps are consistent with President Trump's immigration policy preferences of (1) increasing removals; and (2) decreasing legal immigration through tightening the visa process and other steps. 

During his first year in office, the three "travel" or "Muslim" ban executive orders were perhaps the Trump administration's most high profile immigration enforcement initiatives.  The travel bans are part of a series of immigration enforcement actions that have created considerable fear in immigrant communities.

My focus here is on two other immigration enforcement executive orders issued in January 2017:  

  1. Border Security and Immigration Enforcement Improvements Executive Order [Border Security Order]; and
  2.  Enhancing Public Safety in the Interior of the United States Executive Order [Interior Enforcement Order].

A number of provisions in those orders will directly and indirectly affect immigration adjudication.  Here are a few:

  1. Limits on Prosecutorial Discretion

Section 1 of the Interior Enforcement Order provides that there shall be no exemption of "classes or categories of removable aliens from potential enforcement."  Immigration agencies must "employ all lawful means to enforce the immigration laws."  Section 1 foreshadowed the end of the Deferred Action for Childhood Arrivals (DACA) program.  It is aimed toward expanding the numbers of noncitizens subject to removal, similar to the end of DACA and the end of temporary protected status for Salvadorans did.

  1. Revival of Secure Communities and the Elimination of Priority Enforcement Program

Section 10 of the Interior Enforcement Order reinstated Secure Communities, which President Trump discontinued in November 2014.  Little attention has been paid to this development, which will likely increase the cases in the removal pipeline.  Secure Communities had been severely criticized as overbroad.  The program fed large numbers of petty criminals into the removal system.  State and local resistance to Secure Communities led to its dismantling. 

  1. Bringing Back 287(g) Agreements

Interior Enforcement Order § 8 brings back cooperative agreements between state, local, and federal government to enforce the immigration laws under Immigration and Nationality Act §287(g), which the Obama administration had largely abandoned.  Civil rights concerns with state and local enforcement contributed to the abandonment of 287(g) agreement.  The Trump administration hopes to enhance state and local cooperation and to increase number of removable noncitizens. 

    4. Expansion of Expedited Removal

Expedited removal -- with limited rights for the noncitizens -- has been limited to noncitizens (1) apprehended within 100 miles of the U.S. border; and (2) in the country for less than two weeks.  The rationale was that noncitizens in these categories had limited rights, given their short time in the United States, and necessarily few ties to the country.

Border Security Order § 11 eliminates the geographic limits to expedited removal and would make noncitizens in the country for up to two years subject to expedited removal.  The order calls for the issuance of regulation to expand expedited removal along these lines.  This would raise serious due process problems because it would bring immigrants with greater ties to the United States within the purview of expedited removal.  See Landon v. Plasencia (1982).    

  1. Immigrant Detention

Detention long has been a tool of immigration enforcement, but noncitizens have been generally permitted to post a bond and be released from custody before a removal hearing.  Border Security Order § 6 ends "catch and release" of immigrants and bonding out of custody after apprehension.  It makes mandatory detention official federal policy.  Detention has been challenged in many lawsuits, including in one before the Supreme Court.  See Jennings v. Rodriguez.   Detention is a way of streamlining the docket.  If detained, a noncitizen is more likely to agree to "voluntary departure" and forego a full hearing on removal and possible relief from removal. 


Some of the Trump immigration measures are ill-conceived and weakly implemented.  The first version of the travel ban arguably is an example.  However, the two January 2017 immigration enforcement orders are more focused and directed when it comes to using the law and policy to  (1) increase noncitizens in the removal system; and (2) facilitate removals.

It is important to note that the Executive Office for Immigration Review is housed in the Justice Department.  Attorney General Sessions has expressed strong views on immigration and is taking steps to facilitate removals through immigration court system.  He is increasing pressures to dispose of cases and may limit the discretion of immigration judges to not enter removal orders though such devices as administrative closure.


These issues are discussed in detail in an article to be published in a forthcoming immigration symposium of the Santa Clara Law Review.  Kevin R. Johnson, Immigration and Civil Rights in the Trump Administration:  Law and Policy Making by Executive Order, 57 Santa Clara Law Review (forthcoming 2018).


January 12, 2018

The Year of Living Dangerously: Immigration in the Era of Trump

By Kevin R. Johnson

[Cross-posted from Immigration Prof.]

President Donald Trump has been in office for almost one year.  In that time, he has greatly redirected immigration law and policy and energized immigration enforcement.  Even though the Obama administration had deported record numbers of immigrants in his eight years in office, Trump endeavored to keep his promise of dramatically increasing immigration enforcement.  That included the pledge to "build a wall" along the U.S./Mexico border. The "wall" continues to make the news.   Just yesterday, the Secretary of the Department of Homeland Security was at the border to look at prototypes of the wall.

In his first weeks in office, in addition to the first iteration of the "travel" or "Muslim" ban, President Trump issued two executive orders regarding immigration enforcement.  The orders were geared toward enhancing border and interior enforcement of the immigration laws.  They set in motion attacks on "sanctuary cities," expansion of detention as a tool of immigration enforcement, dramatic increases in the number of immigration enforcement officers, widening the scope of expedited removal (i.e., removals with limited procedural protections), and more.  The Trump administration, including President Trump himself, repeatedly made statements about the new  "zero tolerance" policy toward undocumented immigrants.  The early days of the new administration struck fear in the hearts of immigrant. The good news is that the administration did not pursue a deportation campaign akin to the infamous "Operation Wetback," which Trump endorsed during the presidential campaign.  Rather than announcing a new deportation campaign, the administration for the most part employed the enforcement machinery in place during the Obama presidency, with a particular focus on noncitizens who had brushes with the criminal justice system.

The Trump administration waited until September to announce the phasing out of the Deferred Action for Childhood Arrivals (DACA) program, the much-heralded Obama program that provided limited relief to undocumented immigrants brought to the United States as  children.  The end of DACA led to a push for Congress to provide relief to the DACA recipients. Discussion continues whether the Trump administration will accept a path to citizenship for DACA recipients and, if so, what the terms will be.  Congress in the coming weeks may well act on a "DACA fix" as part of a budget package.

President Trump's concerns with immigration are not limited to undocumented immigration.   The administration has tightened visa requirements for entry into the United States.  In addition, President Trump in August endorsed immigration reform in the name of the RAISE Act, S. 1720, which was introduced in the Senate by Senators Tom Cotton (R-AR) and David Perdue (R-GA).  Because the Act would not provide a path to legalization for undocumented immigrants, it cannot be viewed as a true piece of "comprehensive" immigration reform.  As I have outlined, that Act would reduce immigration by one-half by restricting family migration, eliminate the diversity visa program, and adopt a "merit-based" immigration system disfavoring immigrants from the developing world and redirecting migration to the developed (and predominantly "white" world).  In total, the RAISE Act would likely increase, not decrease, pressures for undocumented immigration.  Consistent with the RAISE Act, the President recently has called on Congress to end "chain migration," which is another way of calling for the end of family reunification as a fundamental goal of the U.S. immigration laws.

In sum, President Trump in his first year in office has made immigration enforcement a high priority in ways that President Obama did not.  The Obama administration embraced enforcement as a tool to help persuade Congress to pass comprehensive immigration reform, including a path to legalization for the eleven million undocumented immigrants who live in the United States.  Enforcement thus was a necessary "evil" to secure long-term benefits for immigrants.  In contrast, President Trump pursues enforcement as an end in itself (and to keep campaign promises) and seeks to increase enforcement at every turn.  He also embraces measures such as the RAISE Act, which would reduce overall levels of immigration to the United States.  Vigilance is necessary as the Trump administration likely will continue to pursue its goals of increasing immigration enforcement while reducing legal immigration.

January 10, 2018

Nurturing Parenthood Through the UPA (2017)

[Cross-posted from the Yale Law Journal Forum]

By Courtney G. Joslin

Preferred Citation: Courtney G. Joslin, Nurturing Parenthood Through the UPA (2017), 127 Yale L.J. F. 589 (2018),‌/nurturing-parenthood-through-the-upa-2017.

Same-sex couples now have the right to marry throughout the country.[1] Yet despite this important development, LGBT-parent families still often find that their parent-child relationships are not recognized and protected. In The Nature of Parenthood, [2] Douglas NeJaime offers a careful exploration of why parentage law fails to protect LGBT-parent families and how it can be reformed to address those gaps in protection.

NeJaime's article shows how parentage law fails to protect LGBT-parent families by only partially recognizing nonbiological parents. In contemporary discussions of family law, it is often claimed that parentage law seeks merely to identify and recognize biological parents.[3] NeJaime shows that this claim is, at best, incomplete; the law has long recognized some nonbiological parents.[4] However, the law's recognition of nonbiological parentage has been "partial and incomplete."[5] Specifically, NeJaime demonstrates how the law recognizes nonbiological parenthood in asymmetrical ways that "reflect[] and perpetuate[] inequality based on gender and sexual orientation."[6] The marital presumption is one useful example. The marital presumption offers protection for nonbiological parents. In most states today, however, the literal text of the provision refers only to husbands, not wives.[7] It is this type of asymmetry that leaves vulnerable LGBT parents and others who "break from traditional norms of gender and sexuality,"[8] even in this post-marriage-equality era.

These asymmetries are cause for concern on a number of levels. First, adults in same-sex relationships are more likely to have their functional parentage relationships unprotected under current parentage law. This is yet another way in which LGBT-parent families continue to be treated unequally under the law. Second, these asymmetries can and often do harm children. If children's relationships with their functional parents are not protected, they may experience "dire consequences."[9] In some states, "children [in these families] can legally be denied any continued relationship with one of the parents and any financial or other support from that parent."[10] In addition, these asymmetries in parentage law may be unconstitutional. Scholars and litigants alike are indebted to NeJaime for sharpening our understanding and appreciation of the inequalities that still pervade parentage law.[11]

After providing this context, NeJaime offers concrete suggestions as to how states could amend their parentage laws to eliminate, or at least minimize, inequality based on gender and sexual orientation.[12] NeJaime gestures to courts as the entities most likely to resolve constitutional defects in parentage rules.[13] But as this Response points out, constitutional oversight can also come from state legislatures. Like courts, legislatures have an obligation to comply with the Constitution. Even without being judicially ordered to do so, legislatures are well situated to proactively reform their parentage statutes to address these sex- and sexual-orientation-based distinctions that continue to permeate parentage laws in many states.

Indeed, efforts have already been made to help state legislatures do just that. The newly revised UPA (2017)[14]-a project of the Uniform Law Commission (ULC)-implements many of the specific reforms that NeJaime recommends.

First, the UPA (2017) expands the ways in which a nonbiological parent may establish her or his parentage. The Act carries over the holding-out provision, but revises it so that it applies equally to men and women.[15] It also adds a new provision on de facto parents, under which someone who has been acting as a parent can legally establish his or her parentage.[16] Finally, the Act updates the assisted reproductive technology (ART) provisions to permit individuals of any gender to establish their parentage based on proper consent to the ART procedure.[17] All ART provisions of the UPA (2017) apply equally without regard to the sex, sexual orientation, or marital status of the intended parents.[18]

Second, by adopting the UPA (2017), states would bring their parentage statutes into compliance with the Supreme Court's decisions in Obergefell v. Hodges,[19] Pavan v. Smith,[20] and Sessions v. Morales-Santana[21] by removing gender-based distinctions. These Supreme Court decisions make clear that family law provisions that discriminate on the basis of gender or sexual orientation may be constitutionally suspect. The UPA (2017) addresses this potential constitutional infirmity by removing most of the gender distinctions in the Act.[22] As a result, most of the provisions in the Act apply without regard to gender or sexual orientation.

This Response to NeJaime's article has two goals. First, I highlight some of the ways that The Nature of Parenthood deepens our understanding of both the past and present law of parentage. NeJaime carefully demonstrates that the law has long recognized nonbiological parentage, but that this recognition is rooted in and perpetuates discriminatory distinctions. Second, I show how the recently approved revisions to the Uniform Parentage Act (UPA) provide a concrete way for states to reform their parentage laws to correct many of the inadequacies identified by NeJaime.

In Part I, I provide a brief overview of the important contributions NeJaime makes in The Nature of Parenthood. Through a careful review of past and current parenthood law, NeJaime shows how the law of parenthood in many states remains rooted in and reflects gender- and sexual orientation-based distinctions. NeJaime then charts a path that addresses those legal inadequacies. In Part II, I demonstrate how states have the opportunity to put many of those proposals in place now by adopting the UPA (2017). In Part III, I show how implementing those proposals could protect children's wellbeing and eliminate much of the discrimination identified by NeJaime.

i.  inequalities in parentage law

In recent years, opponents of equality for same-sex couples have suggested that the law properly elevates biological parenthood over other forms of parenthood.[23] This claim was critical to their argument about why it was permissible to exclude same-sex couples from marriage. Same-sex couples could not, the argument continued, fulfill the core purpose of marriage, which was to promote biological parenting.[24] In The Nature of Parenthood, NeJaime eloquently illustrates that that narrative is, at best, incomplete. The law does and always has recognized some forms of nonbiological parenthood. The core rule for assigning parenthood to men historically-the marital presumption-"both facilitated parental recognition that departed from biological facts and cut off claims to parental recognition based on biological facts."[25] Conversely, nonmarital biological fathers generally had no parental rights historically.[26] Thus, contrary to the assertions of some,[27] the law has recognized and continues to recognize nonbiological parenthood.

However, NeJaime continues, the law recognizes nonbiological parentage in asymmetrical ways. Within marriage, parentage rules reflect and enforce a "gender-differentiated, heterosexual family."[28] For example, in most states, the statutory marital presumption refers only to the "husband" of the woman who gave birth to the child.[29] This reinforces the perception that biology is destiny (and required) for motherhood, but not for fatherhood. Moreover, as a matter of law, some courts have refused to apply this type of gendered marital presumption equally to the female spouse of the woman who gave birth.[30] These rules and decisions make it difficult for women who "separat[e] the biological fact of maternity from the social role of motherhood" to establish parentage.[31] Under these gender-specific parentage rules, the parental relationships of female spouses in same-sex couples and nonbiological mothers in different-sex relationships may be unrecognized and unprotected. Moreover, by anchoring marital parenting around the woman who gave birth, the rules make it difficult for fathers in families without biological mothers to establish parenthood.

In the context of nonmarital families, "biological connection continu[es] to anchor nonmarital parenthood."[32] In most same-sex-parent families, at least one adult lacks a genetic relationship to the child. As a result, gay and lesbian parents are often denied full and equal legal recognition.

Recent Supreme Court decisions suggest that gender- and sexuality-based parentage rules are not only unjust but also unconstitutional. In Morales-Santana, the Court declared that laws, including rules about children, that "grant[] or deny[] benefits 'on the basis of the sex of the qualifying parent' . . . differentiate on the basis of gender, and therefore attract heightened review under the Constitution's equal protection guarantee."[33] In Obergefell, the Supreme Court held that same-sex couples must be permitted to marry and that these couples must be extended the rights and obligations of marriage equally.[34] In June 2017, the Supreme Court held in Pavan[35] that Arkansas's refusal to list a woman on the birth certificate of a child born to her same-sex spouse was inconsistent with its prior declaration in Obergefell. In light of these and other Supreme Court decisions, parentage rules that make distinctions based on sex or sexual orientation may infringe on the fundamental right to marry in violation of the Due Process Clause, or may constitute impermissible discrimination in violation of the Equal Protection Clause, or both.[36] Thus, the Arizona Supreme Court recently held that that state's marital presumption had to be applied equally to a female spouse.[37] As the Arizona Supreme Court explained, under Arizona's marital presumption, husbands were recognized as parents even if they were not biological parents. After Obergefell and Pavan, the court continued, that rule could not "be restricted only to opposite-sex couples."[38]

In addition to raising constitutional concerns, these gender- and sexuality-based asymmetries harm children.[39] When the law fails to recognize and protect functional or social parent-child relationships, children are harmed in a number of ways. Thousands of children have been abruptly cut off from one of the people they looked to and relied upon as a parent.[40] Experience and existing research tells us that this is damaging to children.[41] In addition, children may be denied a range of critical financial protections through that person, including child support and children's social security benefits, just to name two.[42] As I have previously noted, "[W]hether children have adequate financial support, and particularly whether they have access to child support, directly impacts their overall development and well-being."[43] For these reasons, it is important to seriously consider the problems identified by NeJaime.

After identifying the asymmetrical recognition (or nonrecognition, depending on how you view it) of nonbiological parentage, NeJaime begins to chart a path forward for addressing these legal inadequacies.[44] NeJaime's proposals are not quixotic; in fact, they are achievable. Indeed, advocates and state policymakers have an opportunity to put many of these proposals into place now. As I show in the next Part, many of NeJaime's proposals have been incorporated into the UPA (2017).

ii. implementing reform-the upa (2017)

I served as the Reporter for the UPA (2017).[45] First promulgated in 1973, the UPA is a comprehensive statutory scheme for determining a child's legal parentage.[46] The UPA is a product of the ULC, which "provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law."[47] The ULC promulgates state laws on a variety of topics on which uniformity is desirable-from business matters (Uniform Commercial Code), to probate matters (Uniform Probate Code), to child custody jurisdiction (Uniform Child Custody Jurisdiction and Enforcement Act).[48] While the drafters of Uniform Laws often look to state developments for guidance, the goal of the drafting process is not simply to "restate" the existing law.[49] Rather, the goal is to draft "well-conceived and well-drafted" legislation.[50] And often, projects are instituted to help states address newly emerging legal issues[51] or to respond to developments in an area of law.

This latter goal has been particularly evident throughout the history of the UPA. As Harry Krause, the Reporter of the original UPA, explained, states had been slow to reform their parentage laws to eliminate rules that discriminated against nonmarital children. Writing in 1966, Krause explained that "few states have undertaken a comprehensive review of their position on illegitimacy, and sporadic statutes are the common denominator."[52] This lack of action on the part of state legislatures was concerning, both as a matter of policy and as a matter of law. More and more children were being born outside of marriage, and these children were being treated unequally and unfairly in many states, Krause contended.[53] Moreover, Supreme Court decisions suggested that many then-existing state parentage laws were unconstitutional.[54] The UPA (1973) sought to help states comply with these constitutional mandates and to fulfill what was seen as an important policy goal: eliminating the status of illegitimacy and establishing the principle of equality for all children.[55]

The UPA has been quite influential. Laws in over half the states are now based on variations of the UPA.[56] Approximately nineteen states-ranging from Montana to Kansas to Hawaii to Rhode Island-enacted the UPA (1973) in whole or in significant part.[57] And eleven states-ranging from Alabama to Wyoming to Texas to Maine-enacted the UPA (2002).[58]

The newest revision of the Act-the UPA (2017)-was approved by the ULC in July 2017 and is now available for adoption by the states.[59] Like its predecessors, the UPA (2017) seeks to help states comply with newly recognized constitutional obligations and to better reflect and address the reality of the modern family.[60] The UPA (2017) implements, in concrete statutory language, many of the important reforms that NeJaime proposes.

Like NeJaime's prescriptions for review, the UPA revision process was guided by two principles. First, the UPA (2017) expands the pathways for recognition of nonbiological parentage.[61] Second, the UPA (2017) seeks to eliminate gender-based distinctions.[62] These changes help states comply with newly recognized constitutional mandates and reflect the emerging appreciation of the value in recognizing and protecting functional parent-child relationships.[63]

A. Recognizing the Social Bonds of Parenthood[64]

A core goal of the UPA (2017) is to further a principle that has animated the UPA since its inception-recognizing and protecting actual parent-child bonds.[65] Often, the people who are parenting a child are the child's biological parents. But this is not always the case. The UPA has and continues to take the position that actual parent-child bonds are important to children and that these relationships are worthy of protection, even if the parent and the child are not also connected by biology. As noted above, children may be harmed if the law fails to recognize and protect their actual parent-child relationships. The UPA (2017) furthers this core principle in several ways.

First, the UPA (2017) revises the holding-out provision so that it applies equally without regard to gender.[66] The holding-out provision has been included in the UPA since its first promulgation in 1973. Under the provision, a person can be recognized as a parent based on the individual's conduct of living with the child and treating the child as her own.[67] Initially, some courts concluded that the provision could only be used to recognize functional parent-child relationships if those relationships were also based on a biological connection. For example, in In re Nicholas H., a California intermediate appellate court held that even if the holding-out presumption arose based on the man's conduct of living with the child and treating the child as his own, the presumption was necessarily rebutted by evidence that the man was not the child's biological parent.[68] Over time, however, an increasing number of courts has rejected this limited understanding of the holding-out provision. This was true in the Nicholas H. case itself-on appeal, the California Supreme Court concluded that the man could be recognized as a parent under the holding-out provision even though he was not the child's genetic parent.[69] Courts in many other states have likewise concluded that functional, nongenetic parents can be recognized and protected under the holding-out provision.[70]

As noted above, the UPA (2017) continues to include the holding-out provision but takes it a step further by making the provision gender-neutral. Because a woman seeking protection under the provision will rarely be connected to the child by biology,[71] this revision makes it even more clear that the purpose of the provision is to recognize and protect actual parent-child relationships, including relationships that are not biologically based.

Second, the UPA (2017) includes an entirely new method of establishing parentage-the de facto parent provision.[72] Most states today extend some protection to functional, nonbiological parents.[73] Some states do this through a holding-out provision.[74] But even more states recognize and protect functional parent-child relationships under equitable doctrines.[75] The UPA (2017) incorporates this trend in the law in a particularly robust way. Under section 609, persons alleging themselves to be "de facto parents"-that is, parents in fact-can be recognized as legal parents who stand in parity with any other legal parents, including genetic parents, for all purposes.[76] This new method of establishing parentage based on function is written in gender-neutral terms and applies equally to men and women.[77] In addition, the provision captures and protects relationships that may not be covered by the holding-out provision. The holding-out provision of the UPA (2017) applies only when the individual was residing with and holding the child out as her own from birth. In many cases, however, functional parents come into children's lives at some point after they are born. The de facto parent provision provides a mechanism for recognizing these types of parent-child relationships.

Both the holding-out provision and the de facto parent provision require the development of an actual parent-child bond over time.[78] Thus, a person cannot be recognized as a parent under either provision at the moment of birth. In some situations, this lag in legal recognition can leave a family vulnerable. To be clear, however, there are other provisions of the UPA (2017) under which a biologically unrelated person can be recognized as (or at least presumed to be) a legal parent at or near the moment of birth. This may be possible, for example, under the marital presumption,[79] the voluntary acknowledgment process (which is described below),[80] and the assisted reproduction and surrogacy provisions.[81]

Third, the UPA (2017) expands the classes of people who can establish parentage through state voluntary acknowledgment processes (VAP). State VAP procedures implement a federal directive. To be eligible to receive certain federal funds, states must have in place a simple, administrative process for establishing paternity.[82] Once the procedures have been properly followed, completion of a VAP establishes parentage. Federal law provides that the properly completed VAP has the force of a judgment and must be recognized and respected by all other states.[83] Because the systems in most states only apply to men, they are generally referred to as "voluntary acknowledgments of paternity." Moreover, not only are the VAP systems generally limited to men, but most states allow only a man who is alleged to be a genetic father to establish parentage through this process.[84]

Most same-sex parent families, however, include at least one nonbiological parent. As a result, "the biological foundation of VAPs does not repair-but instead exacerbates-burdens experienced by the nonmarital children of same-sex couples."[85] To eliminate unnecessary gender distinctions and provide greater clarity and certainty to nonbiological parents, the UPA (2017) renames these "acknowledgments of parentage" and permits a wider group of people to establish parentage through this process. Section 301 provides that in addition to an alleged genetic father, a VAP can also be used to establish the legal parentage of "an intended parent" of a child born through assisted reproduction and of a "presumed parent" (which, most commonly, will be the woman's spouse-male or female).[86]

This revision is an extremely important development. The new groups of people who can establish parentage under this provision are those who would already be considered or presumed to be parents under their relevant state's law. But in the absence of a formal judgment of parentage, other states may not be required to respect and recognize that parent-child status.[87] And we know from existing case law that courts do refuse to recognize the parental status of LGBT parents, even if it was clear that they were considered parents in the state in which their child was born.[88] These problems arise because, absent a judgment of parentage, states often apply their own forum law when adjudicating parentage.[89] And when the person is LGBT, as NeJaime demonstrates, that person may not be considered a parent under the law of many states. This new, expanded VAP procedure helps mitigate some of this uncertainty. As a result, parties would have a means of establishing a final, secure determination of parentage without having to go to court.[90]

Fourth, the UPA (2017) provides greater clarity and direction to courts in deciding which of multiple claimants should be declared a child's parent when genetics and function suggest different results. The UPA requires courts to weigh a range of factors.[91] These factors include: "the length of time during which each individual assumed the role of parent of the child"; "the nature of the relationship between the child and each individual"; and "the harm to the child if the relationship between the child and each individual is not recognized."[92] Critically, almost all of the factors focus on the person's relationship to the child. As such, these rules permit a court to choose social bonds over genetic bonds.[93] Here again, the revision clarifies that parentage need not be based on biological connections and that biological connections are not necessarily more important than other means of establishing parentage.

To be sure, courts have discretion under section 613 when weighing competing claims of parentage. While a court could choose social ties over genetic bonds, it is not required to do so. And it is possible that a court could place significant weight on biology when weighing the respective claims. That said, this new provision makes clear that biology does not necessarily trump social bonds; if that were the case, a best-interests-of-the-child analysis that involves consideration of a range of factors focused on the individuals' relationships with the child would be unnecessary.

B. Eliminating Gender Distinctions

In addition to the changes described above, the UPA (2017) incorporates additional reforms intended to eliminate many gender distinctions in the rules of parentage.[94]

The UPA (2017) seeks to further the goal of gender equality through its very terminology. The prior versions of the Act distinguished between paternity and maternity and created different mechanisms for establishing each one.[95] Not only did this distinction erect different rules for men and women, but it also reinforced the notion that some inherent difference exists between mothers and fathers. In contrast, the UPA (2017) takes the position that under most of the rules for establishing parentage, an individual's gender is not relevant.[96] Accordingly, the UPA (2017) eliminates many of the gender-based distinctions from the Act and unifies the methods of establishing parentage under a single rubric. The UPA (2017) now lays out the ways in which any individual-male or female-can establish a legally recognized parent-child relationship.[97]

Consistent with this basic principle, throughout the Act, specific means of establishing parentage have been made gender-neutral. In addition to the provisions discussed above, the two articles addressing the parentage of children born through forms of assisted reproduction-article 7 addressing nonsurrogacy forms of ART, and article 8 addressing surrogacy-likewise replace gendered terms with gender-neutral ones. An earlier version of the Act-the UPA (2002)-had addressed the parentage of children born through ART, but its provisions referred only to intended couples consisting of one man and one woman.[98] Because the provisions were written in gendered terms, some courts refused to apply these gendered statutory provisions equally to same-sex intended parents who had children together through assisted reproduction.[99]

Articles 7 and 8 of the UPA (2017), by contrast, cover all intended parents, without regard to the sex, sexual orientation, or marital status of the intended parents.[100] These changes are consistent with NeJaime's call for "[a] more comprehensive and evenhanded use of consent in the regulation of ART" as a means to "promote equality, based on gender, sexual orientation, and marital status."[101] By replacing gendered language with gender-neutral language, the UPA (2017) promotes equality by opening up additional methods of establishing parentage to all individuals. In doing so, the Act also works to breaks down the persistent legal and social distinctions between mothers and fathers.

The revisions to the assisted reproduction provisions also further the first identified goal of recognizing and protecting social parenthood. As was true under the UPA (2002), the UPA (2017) does not require intended parents of children born through ART or surrogacy to have a genetic connection to the resulting child.[102] Indeed, under articles 7 and 8, parentage is established entirely by virtue of conduct.[103] Genetic connection is simply not relevant to establishing the parentage of intended parents under these articles.[104] Thus, an intended mother of a child born through assisted reproduction can be a legal mother even if she lacks a genetic or gestational connection to the resulting child.[105]

The Act also updates the parentage presumptions, including the marital presumption,[106] to remove most gender-based distinctions. All fifty states have a marital presumption.[107] In most states, however, the marital presumption expressly applies only to the husband of the woman who gave birth.[108] In such states, some courts have refused to apply their gender-specific marital presumption equally to female spouses.[109] In such jurisdictions, male spouses who are not biological parents are presumed to be legal parents, but similarly situated female spouses are not. This, some courts have concluded, is unconstitutional.[110] The UPA (2017) addresses this potential constitutional infirmity by making the marital presumption expressly apply equally to both male and female spouses of the woman who gave birth.[111]

 * *

To be clear, the UPA (2017) does not entirely eliminate considerations of gender and biology. The Act still places great weight on gestation. Thus, except in cases involving surrogacy, the woman who gave birth to the child is automatically considered a parent.[112] For this reason, the UPA (2017) does not go as far as NeJaime urges with regard to the marital presumption.[113] Because the woman who gave birth is statutorily defined as a parent, the marital presumption only applies to the spouse of the woman who gave birth.[114] It does not apply to the spouse of a man who is a legal parent. The spouse of that man may be able to establish parentage through other means, such as de facto parentage or the holding-out presumption. But he or she is not presumed to be a parent solely by virtue of his or her marriage to a parent.

In addition, the surrogacy provisions place some weight on genetics. While the intended parents need not have a genetic connection to be recognized as parents, article 8 does distinguish between gestational surrogacy and genetic surrogacy (often referred to as "traditional" surrogacy).[115] One may argue that if biology is not destiny, one should treat these forms of surrogacy identically. That is, if biology does not necessarily make one a parent, the surrogacy rules should apply equally, without regard to whether the surrogate is genetically related to the child. Treating these two forms of surrogacy differently, one may argue, unnecessarily re-elevates the importance of genetic connections.

The reality today, however, is that all states that address surrogacy through comprehensive statutory schemes distinguish between the two forms of surrogacy. Most of these states simply refuse to permit and regulate genetic surrogacy expressly.[116] And the few states that explicitly permit genetic surrogacy by comprehensive statutory scheme impose additional requirements on such agreements.[117] While ULC drafting committees seek to advance the law substantively, they also seek to draft laws that can be widely enacted, with the ultimate goal of uniformity throughout the nation. Here, the drafting committee determined that those two goals would be best furthered by the above approach. By including and permitting genetic surrogacy, the committee was providing clear rules and therefore greater clarity and certainty for those who form families through this means. But at the same time, the provisions regarding genetic surrogacy erect additional safeguards, thereby acknowledging and responding to the political reality that state legislators have been more reluctant to enact legislation expressly permitting this form of surrogacy.

iii. nurturing parentage law

If broadly adopted by a significant number of states, the revisions incorporated into the UPA (2017) would go a long way toward both addressing the discrimination that NeJaime identifies and protecting children's wellbeing. Since its first promulgation almost fifty years ago, the UPA has been a critical lever in addressing discrimination in parentage law. By enacting the original 1973 version, states began to chip away at longstanding discrimination and unequal treatment of nonmarital children.[118] It would be a tremendously positive step in the lives of children and their families if the most recent revision of the UPA was as successful as its predecessors.

As NeJaime suggests, there are a number of important reasons why states should consider revising their statutes in these ways. First and foremost, these changes help protect children and their families. Under current law in many states, people who children view and rely upon as parents may not be recognized as parents. Failing to recognize those relationships can harm children in very tangible ways.

Moreover, leaving families uncertain about their legal relationships to each other can be emotionally destabilizing. It can result in contentious litigation against an outsider who refuses to recognize and respect the family, such as an insurance company that denies benefits on the ground that they are not legal family members. Or the litigation could arise from within the family, such as upon the breakdown of the family where one person-often the biological parent-argues that the nonbiological parent is not a parent and not entitled to seek contact with the child. Family breakdowns are almost always difficult for children, and placing the child in the middle of acrimonious litigation can make that process even more difficult.

As NeJaime suggests, these families can and often do ask courts to apply gender-specific statutes in gender-neutral ways. But requiring individual families to ask courts to do this on a case-by-case basis places an enormous burden on families. It also places burdens on courts. Thus, in recent years, a number of courts have called upon state legislatures to do their part to update incomplete and outdated parentage regimes.[119] By enacting clear, express statutory provisions, states can provide families with clarity about the rules governing them. This clarity can help avoid unnecessary litigation and reduce the challenges that children face during what are already difficult periods in their lives.

Enacting the UPA (2017) would also help states comply with constitutional mandates of due process and equal protection. If a state permits a husband to be recognized as a legal parent even if he is not a genetic parent, the Constitution requires the state to make the same protection available to a female spouse.[120] As the Arizona Supreme Court reminded us, these constitutional mandates apply not just to courts-they also apply to state legislatures. And indeed, if the changes come from state legislatures rather than through the courts, the constitutional correction need not occur on a case-by-case basis. "[L]egislative enactments and rulemaking . . . can forestall unnecessary litigation and help ensure that [the] law guarantees same-sex spouses the dignity and equality the Constitution requires-namely, the same benefits afforded couples in opposite-sex marriages."[121] Adoption of the UPA (2017) assists states in fulfilling these constitutional obligations.

If adopted, these advances certainly will benefit and be felt by same-sex married couples and their children. Under the UPA (2017), many more of these married same-sex parents will have legally recognized relationships with their children, and these families will have greater certainty and security regarding their familial relationships as they travel about the country.

Helping states fulfill their constitutional obligation to treat married same-sex couples equally was a key impetus for the revision project. But it is also important not to overlook the fact that the impact of the UPA (2017) will extend beyond the boundaries of the marital family. Consistent with one of the core principles of the original UPA, the UPA (2017) seeks to ensure the equal treatment of nonmarital children as well.[122] As described above, many of the key provisions in the UPA (2017) apply equally not only without regard to gender and sexual orientation, but also marital status. The provisions that apply equally without regard to marital status include almost all of the provisions discussed above: the holding-out provision, the de facto parent provision, the VAP provisions, and the assisted reproduction provisions. The UPA (2017) is, therefore, an example of how marriage equality successes may be leveraged to achieve progress for all families-marital and nonmarital.[123]


As NeJaime carefully demonstrates in The Nature of Parenthood, parentage law in most states continues to "reflect[] and perpetuate[] inequality based on gender and sexual orientation."[124] As a result, the law often leaves LGBT parents and women who separate social parenthood from genetic parenthood inadequately protected under the law. These legal inadequacies harm not only adults, but also the children in these families.

States have the opportunity to reform many of these existing limitations in parentage law by enacting the UPA (2017). The UPA (2017) implements many of the concrete reforms called for by NeJaime. I am hopeful that many states will seize this opportunity to do just that.

Courtney G. Joslin is a Professor of Law and a Martin Luther King Jr. Scholar at the UC Davis School of Law. Joslin was the Reporter for the UPA (2017). The author is grateful to Doug NeJaime and Jamie Pedersen for thoughtful feedback on this Response. For excellent editing assistance, I thank the editors of the Yale Law Journal, especially Dylan Cowit, Meenu Krishnan, Arjun Ramamurti, Erin van Wesenbeeck, and Kyle Victor.

Preferred Citation: Courtney G. Joslin, Nurturing Parenthood Through the UPA (2017), 127 Yale L.J. F. 589 (2018),‌/nurturing-parenthood-through-the-upa-2017.

[1].    Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015).

[2].    Douglas NeJaime, The Nature of Parenthood, 126 Yale L.J. 2260, 2265-66 (2017). To be sure, it is not just LGBT-parent families who remain vulnerable under existing parentage schemes. Other women who "separate motherhood from biological ties" may also experience difficulties in having their parentage recognized. Id. at 2266.

[3].    See, e.g., Petitioner's Supplemental Brief at 5, McLaughlin v. Jones ex rel. Cty. of Pima, 401 P.3d 492 (Ariz. 2017) (No. CV-16-0266-PR), 2017 WL 2874198, at *5 ("To date, the legislature has never extended parentage beyond biology or adoption."). It is not uncommon to encounter inaccurate claims about the past and present state of family law. See, e.g., Courtney G. Joslin, Marriage, Biology, and Federal Benefits, 98 Iowa L. Rev. 1467, 1483 (2013) [hereinafter Joslin, Marriage, Biology] (describing the invocation of such claims). The persistence of the myth of family law localism is another example of a claim that is often made about family law that is likewise inaccurate or at least incomplete. See, e.g., Courtney G. Joslin, Federalism and Family Status, 90 Ind. L.J. 787, 789 (2015) (exploring the persistence of the myth of family law localism); see also, e.g., Kristin A. Collins, Federalism's Fallacy: The Early Tradition of Federal Family Law and the Invention of States' Rights, 26 Cardozo L. Rev. 1761, 1764 (2005) (noting "the standard perception that there is a long-standing tradition of federal non-involvement in domestic relations law and policy"); Jill Elaine Hasday, The Canon of Family Law, 57 Stan. L. Rev. 825, 870 (2004) (describing and critiquing the claim that "family law is exclusively local"); Judith Resnik, Reconstructing Equality: Of Justice, Justicia, and the Gender of Jurisdiction, 14 Yale J.L. & Feminism 393, 415 (2002) ("[A]lthough statements that family law 'belongs' to the states are often made, federal statutory regimes govern many facets of family life.").

[4].    NeJaime, supra note 2, at 2272-75.

[5].    Id. at 2268.

[6].    Id.

[7].    See, e.g., id. app. A (noting that only 11 states and the District of Columbia have statutory gender-neutral marital presumptions).

[8].    Id. at 2265-66.

[9].    Sinnott v. Peck, No. 2015-426, 2017 WL 5951846, at *7 (Vt. Dec. 1, 2017).

[10].   Id.

[11].   The provision of a painstakingly careful and complex picture of history is a hallmark of NeJaime's scholarship. See, e.g., Douglas NeJaime, Before Marriage: The Unexplored History of Nonmarital Recognition and Its Relationship to Marriage, 102 Calif. L. Rev. 87, 91 (2014) (exploring the relationship between efforts to recognize nonmarital relationships and marriage); Douglas NeJaime, Marriage Equality and the New Parenthood, 129 Harv. L. Rev. 1185, 1187 (2016) [hereinafter NeJaime, Marriage Equality] (exploring the dynamic relationship between the evolution of parentage law and marriage equality successes).

[12].   NeJaime, supra note 2, at 2266.

[13].   Id. at 2347-59.

[14].   Unif. Parentage Act (Unif. Law Comm'n 2017).

[15].   Id. § 204(a)(2) cmt.

[16].   Id. § 609.

[17].   Nonsurrogacy forms of ART are addressed in article 7 of the UPA (2017); surrogacy is addressed in article 8.

[18].   See, e.g., id. § 102(13) ("'Intended parent' means an individual, married or unmarrried, who manifests an intent to be legally bound as a parent of a child conceived by assisted reproduction."); id. § 703 ("An individual who consents under Section 704 to assisted reproduction by a woman with the intent to be a parent of a child conceived by the assisted reproduction is a parent of the child." (emphasis added)).

[19].   135 S. Ct. 2584 (2015).

[20].   137 S. Ct. 2075 (2017).

[21].   137 S. Ct. 1678 (2017).

[22].   See, e.g., Why Your State Should Adopt the Uniform Parentage Act, Uniform L. Commission (2017), [http://‌] ("After these decisions, state parentage laws that treat same-sex couples differently than different-sex couples are likely unconstitutional. By adopting UPA (2017), states can avoid litigation over these issues and uphold constitutional protections.").

[23].   I detail and critique these claims elsewhere. Joslin, Marriage, Biology, supra note 3, at 1467.

[24].   Id. at 1472 ("Under responsible procreation, same-sex couples are excluded from enjoying the benefits of marriage at the federal level because it just so happens that same-sex relationships cannot fulfill the core reason the federal government extends benefits to married couples in the first place: to foster and promote biological parenting."); see also Windsor v. United States, 699 F.3d 169, 199 (2d Cir. 2012) (Straub, J., dissenting), aff'd, 133 S. Ct. 3675 (2013) ("DOMA advances the governmental interest in connecting marriage to biological procreation by excluding certain couples who cannot procreate simply by joinder of their different sexual being[s] from the federal benefits of marital status.").

[25].   NeJaime, supra note 2, at 2272.

[26].   See id. at 2274-75; see also Martha F. Davis, Male Coverture: Law and the Illegitimate Family, 56 Rutgers L. Rev. 73, 81-82 (2003) ("[B]y the late nineteenth century, mothers were generally accorded a formal legal connection to their out-of-wedlock children . . . . But while illegitimate children gained a formal connection to their mothers, non-marital fathers remained free of the legal burdens and benefits of parenthood." (footnote omitted)); Serena Mayeri, Foundling Fathers: (Non-)Marriage and Parental Rights in the Age of Equality, 125 Yale L.J. 2292, 2295 (2016) ("Traditionally, fathers had few rights or responsibilities to their nonmarital children.").

[27].   See, e.g., Petitioner's Supplemental Brief at 4-5, McLaughlin v. Jones ex rel. Cty. of Pima., 401 P.3d 492 (Ariz. 2017) (No. CV-16-0266-PR), 2017 WL 2874198, at *5 ("To date, the legislature has never extended parentage beyond biology or adoption."); Appellant's Final Reply Brief at 12, Gartner v. Iowa Dep't of Pub. Health, 830 N.W.2d 335 (Iowa 2013) (No. 12-0243) ("'[P]aternity' is defined consistently in Iowa Code as 'origin or descent from a father' or 'male parentage'; 'father' is uniformly defined and understood as 'the male, biological parent of a child.'" (citation omitted)).

[28].   NeJaime, supra note 2, at 2268.

[29].   See, e.g., Mont. Code Ann. § 40-6-105(1) (2017) ("A person is presumed to be the natural father of a child if any of the following occur: (a) the person and the child's natural mother are or have been married to each other and the child is born during the marriage or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce or after a decree of separation is entered by a court . . . .").

[30].   See, e.g., Turner v. Steiner, 398 P.3d 110, 113 (Ariz. Ct. App. 2017), abrogated by McLaughlin, 401 P.3d 492 ("Because [the] language [of Arizona's marital presumption] is clearly and unambiguously gender-specific to apply to men, the family court erred by applying the presumption of paternity to Oakley."); Paczkowski v. Paczkowski, 10 N.Y.S.3d 270, 271 (N.Y. App. Div. 2015) (holding that the marital presumption of legitimacy could not be applied to a female spouse because "presumption of legitimacy . . . is one of a biological relationship"); In re A.E., No. 09-16-00019-CV, 2017 WL 1535101, at *8 (Tex. Ct. App. Apr. 27, 2017), petition for review pending ("Obergefell did not hold that every state law related to the marital relationship or the parent-child relationship must be 'gender neutral.'").

              To be clear, however, other courts have disagreed. See, e.g., McLaughlin, 401 P.3d at 498 ("In sum, the presumption of paternity under § 25-814(A)(1) cannot, consistent with the Fourteenth Amendment's Equal Protection and Due Process Clauses, be restricted to only opposite-sex couples. The marital paternity presumption is a benefit of marriage, and following Pavan and Obergefell, the state cannot deny same-sex spouses the same benefits afforded opposite-sex spouses."); Wendy G-M. v. Erin G-M., 985 N.Y.S.2d 845, 859 (N.Y. Sup. Ct. 2014) (holding that a female spouse was a parent of a child born to her spouse under the marital presumption of legitimacy). In addition, a number of states have amended their marital presumptions to clarify that they must be applied equally to female spouses. See, e.g., Cal. Fam. Code § 7611(a) (West 2017); D.C. Code Ann. § 16-909(a-1)(2) (2017); 750 Ill. Comp. Stat. Ann. 46/204(1) (2017); Me. Stat., tit. 19-A, § 1881(1) (2017); N.H. Rev. Stat. § 168-B:2(V) (2017); Wash. Rev. Code Ann. § 26.26.116(1)(a) (2017).

[31].   NeJaime, supra note 2, at 2268.

[32].   Id.

[33].   Sessions v. Morales-Santana, 137 S. Ct. 1678, 1689 (2017) (quoting Califano v. Westcott, 443 U.S. 76, 84 (1979)).

[34].   Obergefell v. Hodges, 135 S. Ct. 2584, 2601, 2604-05 (2015) (holding that under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, states must permit same-sex couples to marry and extend to them "the constellation of benefits that the States have linked to marriage").

[35].   Pavan v. Smith, 137 S. Ct. 2075, 2079 (2017) ("Having made that choice [to list nonbiological male spouses on the birth certificate of a child born to a married couple], Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.").

[36].   See, e.g., McLaughlin v. Jones ex rel. Cty. Of Pima, 401 P.3d 492, 498 (Ariz. 2017).

[37].   Id.

[38].   Id.

[39].   For a more comprehensive exploration of the ways children are harmed when their functional parent-child relationships are not recognized and protected, see, for example, Courtney G. Joslin, Protecting Children(?): Marriage, Gender, and Assisted Reproductive Technology, 83 S. Cal. L. Rev. 1177 (2010) (exploring financial harms); Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining Parenthood To Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78 Geo. L.J. 459, 573 (1990) (exploring emotional harms).

[40].   For one of the many heartbreaking stories, see Elaine Herscher, Family Circle for Nancy Springer, S.F. Chron. (Aug. 29, 1999) (describing the real-life aftermath of the decision in Nancy S. v. Michele G., 279 Cal. Rptr. 212 (Cal. Ct. App. 1991)).

[41].   See, e.g., In re Custody of C.C.R.S., 892 P.2d 246, 258 (Colo. 1995) (en banc) (noting that disrupting emotional bonds between a child and psychological parents "would likely prove devastating to the child and would result in long-term, adverse psychological effects on the child" (citation omitted)).

[42].   Joslin, supra note 39.

[43].   Id. at 1196.

[44].   NeJaime, supra note 2, at 2332 (introducing the Part that "suggests how the law might better realize egalitarian commitments in parentage, not only with respect to families formed through ART but across the wider swath of families in contemporary society").

[45].   NeJaime served as an Observer on this project.

[46].   A revision of the UPA was undertaken in the 1990s. After approval by the ULC in 2000, the UPA (2000) underwent additional revision in 2001 and 2002 to respond to concerns raised by the ABA regarding the ways in which the UPA (2000) discriminated against nonmarital children. I participated in the negotiations and the revisions that led to the UPA (2002). For an account of this process, see John J. Sampson, Preface to the Amendments to the Uniform Parentage Act (2002), 37 Fam. L.Q. 1 (2003).

[47].   About the ULC, Uniform L. Commission,‌?title=About%20the%20ULC [].

[48].   Once an Act has been approved by the ULC, states are then encouraged to enact the statutory schemes. Id.

[49].   Id.

[50].   Id.

[51].   A good contemporary example of this is the Uniform Regulation of Virtual Currency Businesses Act, which was approved by the ULC in July 2017. Unif. Regulation of Virtual Currency Bus. Act (Unif. Law Comm'n 2017),‌/regulation%20of%20virtual%20currencies/2017AM_URVCBA_AsApproved.pdf [http://‌].

[52].   Harry D. Krause, Bringing the Bastard into the Great Society-A Proposed Uniform Act on Legitimacy, 44 Tex. L. Rev. 829, 831 (1966).

[53].   Id. at 829.

[54].   See, e.g., Gomez v. Perez, 409 U.S. 535, 538 (1973) (per curiam) (holding unconstitutional a Texas child support statute that only imposed child support obligations on fathers of legitimate but not "illegitimate" children); Stanley v. Illinois, 405 U.S. 645, 658 (1972) (holding unconstitutional an Illinois custody law that excluded nonmarital fathers of "illegitimate" children from the definition of "parent").

[55].   See, e.g., Unif. Parentage Act prefatory note (Unif. Law Comm'n 2002) ("When work on the [1973] Act began, the notion of substantive legal equality of children regardless of the marital status of their parents seemed revolutionary. Even though the Conference had put itself on record in favor of equal rights of support and inheritance in the Paternity Act and the Probate Code, the law of many states continued to differentiate very significantly in the legal treatment of marital and nonmarital children. A series of United States Supreme Court decisions invalidating state inheritance, custody, and tort laws that disadvantaged out-of-wedlock children provided both the impetus and a receptive climate for the Conference to promulgate UPA (1973).").

[56].   See id.

[57].   See id. ("As of December, 2000, UPA (1973) was in effect in 19 states stretching from Delaware to California; in addition, many other states have enacted significant portions of it."); see also Unif. Parentage Act Refs & Annos (Unif. Law Comm'n 1973) (listing state adoptions).

[58].   See Legislative Fact Sheet-Parentage Act, Uniform L. Commission, http://www.uniformlaws‌.org/LegislativeFactSheet.aspx?title=Parentage%20Act [] (listing the following states as adopters: Alabama, Delaware, Illinois, Maine, New Mexico, North Dakota, Oklahoma, Texas, Utah, Washington, and Wyoming).

[59].   The UPA (2017) was approved by the ULC on July 19, 2017. The UPA (2017) is available at Unif. Parentage Act (Unif. Law Comm'n 2017),‌/docs/parentage/UPA2017_Final_2017sep22.pdf []. For a memo describing the key changes implemented by the 2017 revision, see Memorandum from Jamie Pedersen, Chair, Unif. Parentage Act Drafting Comm. & Courtney Joslin, Reporter, Unif. Parentage Act Drafting Comm., to Unif. Law Comm'rs (June 9, 2017), http://‌ [].

[60].   See, e.g., Memorandum from Jamie Pedersen, Chair, Study Comm. on Possible Amendments to the Unif. Parentage Act, to Comm. on Scope and Program 1 (Oct. 5, 2015), http://www‌ [] ("We believe a drafting committee should be appointed to consider revisions to the UPA in light of developments in constitutional law, innovations at the state legislative level, and changes in American society over the nearly 20 years since the last major revision process began for the UPA.").

[61].   See, e.g., Memorandum from Courtney Joslin, Reporter, Unif. Parentage Act 2017 Drafting Comm., to Unif. Parentage Act 2017 Drafting Comm. 3-11 (Oct. 5, 2016), http://www‌ [http://‌] (providing background information related to de facto parentage).

[62].   See, e.g., Memorandum from Jamie Pedersen, Chair, Study Comm. on Possible Amendments to the Unif. Parentage Act, to Comm. on Scope & Program 3 (June 12, 2015), http://www‌
.pdf [] (noting that in light of developments with regard to marriage equality, "ULC staff have begun the work of reviewing other ULC acts that include gender-specific references to husbands, wives, mothers, and fathers" and urging that the same should be done with the UPA).

[63].   See, e.g., Why Your State Should Adopt the Uniform Parentage Act, supra note 22.

[64].   This, again, is a principle that animates many of the reforms called for by NeJaime. See NeJaime, supra note 2, at 2338 (advocating for the "[f]uller recognition of the social bonds of parenthood").

[65].   The UPA (1973) and the UPA (2002) both included marital presumptions. Under both versions of the Act, the marital presumption protected the relationship between a woman's husband and a child born to the woman even if the husband was not the genetic father. Unif. Parentage Act § 204(a) (Unif. Law Comm'n 2002) ("A man is presumed to be the father of a child if: (1) he and the mother of the child are married to each other and the child is born during the marriage . . . ."); Unif. Parentage Act § 4(a) (Unif. Law Comm'n 1973) ("A man is presumed to be the natural father of a child if: (1) he and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation is entered by a court . . . ."). The UPA (2002) had a particularly strong version of the marital presumption, providing that it became conclusive or irrebuttable after the child's second birthday, and permitting a court to deny a request for genetic testing even within that two-year window. Unif. Parentage Act §§ 607, 608 (Unif. Law Comm'n 2002).

              In addition, both the UPA (1973) and the UPA (2002) allowed an individual to establish parentage based on the individual's conduct of living with the child and functioning as a parent to the child. Id. § 204(a)(5) (providing that a man is presumed to be the father of a child if: "for the first two years of the child's life, he resided in the same household with the child and openly held out the child as his own"); Unif. Parentage Act § 4(a)(4) (Unif. Law Comm'n 1973) (providing that a man is presumed to be a parent if, "while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child").

[66].   Unif. Parentage Act § 204(a)(2) (Unif. Law Comm'n 2017) ("An individual is presumed to be a parent of a child if: . . . (2) the individual resided in the same household with the child for the first two years of the life of the child, including any period of temporary absence, and openly held out the child as the individual's child." (emphasis added)).

[67].   Id. The holding-out provision of the UPA (1973) had no time limitations (other than the requirement that the relationship be developed when the child was still a minor). Unif. Parentage Act § 4(a)(4) (Unif. Law Comm'n 1973) (providing that a man is presumed to be a parent if, "while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child"). In 2002, a new time requirement was added. To be covered under the holding-out provision, the individual had to have functioned as a parent "for the first two years of the child's life." Unif. Parentage Act § 204(a)(5) (Unif. Law Comm'n 2002). This time requirement from the UPA (2002) was carried over in the most recent revision of the Act.

[68].   110 Cal. Rptr. 2d 126, 141, rev'd, 46 P.3d 932 (Cal. 2002), modified (July 17, 2002) ("Therefore, under section 7612, the presumption is rebutted by 'clear and convincing' evidence that the man is not the child's natural, biological father.").

[69].   46 P.3d at 941.

[70].   See, e.g., In re Parental Responsibilities of A.R.L., 318 P.3d 581, 584-85 (Colo. App. 2013); Partanen v. Gallagher, 59 N.E.3d 1133, 1138-40 (Mass. 2016); In re Guardianship of Madelyn B., 98 A.3d 494, 499 (N.H. 2014); Chatterjee v. King, 280 P.3d 283, 292-93 (N.M. 2012).

[71].   Usually, the woman who is genetically connected to the child is the woman who gave birth to the child. Such a woman is a parent by virtue of having given birth to the child. Unif. Parentage Act § 201(1) (Unif. Law Comm'n 2017) ("A parent-child relationship is established between an individual and a child if: (1) the individual gives birth to the child [except in situations involving surrogacy] . . . ."). The woman who gave birth to the child, therefore, would not need to invoke the holding-out provision to establish parentage. Sometimes, however, the woman who gave birth to the child is not the child's genetic parent. See, e.g., K.M. v. E.G., 117 P.3d 673 (Cal. 2005) (demonstrating parentage litigation involving twins born to a lesbian couple through ova sharing).

[72].   Unif. Parentage Act § 609 (Unif. Law Comm'n 2017). To be clear, some people who qualify as parents under the newly added de facto parent provision might have been protected under other provisions of earlier versions of the UPA. For example, such a person might have been protected under the holding-out provision of the UPA (1973). That said, the UPA (2017) is the first version of the Act to include the term "de facto parent." See, e.g., Memorandum from Courtney Joslin, Reporter, Unif. Parentage Act 2017 Drafting Comm., to Unif. Parentage Act 2017 Drafting Comm., supra note 61.

[73].   See, e.g., Courtney G. Joslin, Leaving No (Nonmarital) Child Behind, 48 Fam. L.Q. 495 (2014) (providing an overview of developments in the law).

[74].   See supra notes 68-70 and accompanying text.

[75].   See, e.g., Joslin, supra note 73, at 499-502.

[76].   Unif. Parentage Act § 609 (Unif. Law Comm'n 2017). The factors included in section 609 are based on the factors that have been developed by courts under common-law doctrines. In some states, however, individuals recognized under these common-law doctrines do not stand in parity with any other legal parents. See Joslin, supra note 73, at 500-01.

[77].   This provision also applies without regard to marital status.

[78].   See, e.g., Unif. Parentage Act § 204(a)(2) (Unif. Law Comm'n 2017) (providing that the individual must have "resided in the same household with the child for the first two years of the life of the child . . . and openly held out the child as the individual's child"); id. § 609(d)(5) (providing that an individual claiming to be a de facto parent must demonstrate that he or she "established a bonded and dependent relationship with the child which is parental in nature").

[79].   Id. § 204(a)(1). Under the marital presumption, the spouse of the woman who gave birth is presumed to be a parent of the child as soon as the child is born.

[80].   As explained in more detail below, the voluntary-acknowledgment-of-parentage provisions are included in article 3 of the UPA (2017).

[81].   Nonsurrogacy forms of assisted reproduction are addressed in article 7 of the UPA (2017) and surrogacy is addressed in article 8. As described in more detail below, articles 7 and 8 have been revised to apply to all intended parents, regardless of sex, sexual orientation, or marital status. Under article 7, if the intended parent consents to the insemination as required, the intended parent is a parent of the child from the moment of birth. See, e.g., id. § 703 (providing that an individual who consents to the assisted reproduction "is a parent of the child"). Under article 8, if the agreement complies with the article's requirements, an intended parent of a child born through gestational surrogacy "is a parent of the child." Id. § 809(a).

[82].   See, e.g., 42 U.S.C. § 666(a) (2012) ("In order to satisfy section 654(20)(A) of this title, each State must have in effect laws requiring the use of the following procedures . . . .").

[83].   See, e.g., Katharine K. Baker, The DNA Default and Its Discontents: Establishing Modern Parenthood, 96 B.U. L. Rev. 2037, 2049 (2016) (noting that after the rescission period has elapsed, a VAP is treated as a "final legal judgment that can be challenged only on grounds of fraud, duress, and material mistake of fact"); see also 42 U.S.C. § 666(a)(5)(C)(iv) (2012) (providing that states must "give full faith and credit to such an affidavit signed in any other State according to its procedures"). As I explain elsewhere, having certainty that one's parentage will be recognized and respected across state lines is vitally important to families. Without a judgment of parentage or an establishment that is treated as a judgment, a person's status as a parent may flicker on and off as one travels from state to state. See, e.g., Courtney G. Joslin, Travel Insurance: Protecting Lesbian and Gay Parent Families Across State Lines, 4 Harv. L. & Pol'y Rev. 31 (2010).

[84].   Nevada recently enacted a gender-neutral VAP procedure for children born through assisted reproduction. 2017 Nev. Legis. Serv. Ch. 63 (West).

[85].   NeJaime, supra note 2, at 2344; id. at 2344-45 ("A more egalitarian system would expressly allow VAPs to recognize parents not only on biological but also on social grounds. Voluntary acknowledgements of paternity could become voluntary acknowledgements of parentage and apply to both biological and nonbiological parents, including both men and women." (emphasis omitted)); see Joslin, supra note 83 (proposing a VAP-like system designed to protect LGBT-parent families); see also Leslie Joan Harris, Voluntary Acknowledgments of Parentage for Same-Sex Couples, 20 Am. U. J. Gender Soc. Pol'y & L. 467 (2012).

[86].   NeJaime calls for a similar reform. NeJaime, supra note 2, at 2344 ("The equality principles guiding reform would lead states to open VAPs to same-sex couples in ways that render VAPs explicitly capable of capturing social, and not only biological, grounds for parenthood.").

[87].   For more detailed explorations of this issue, see Courtney G. Joslin, Interstate Recognition of Parentage in a Time of Disharmony: Same-Sex Parent Families and Beyond, 70 Ohio St. L.J. 563 (2009); Joslin, supra note 83.

[88].   Indeed, some courts have gone so far as to refuse to recognize a judgment recognizing the parentage of an LGBT parent entered by the court of another state. See, e.g., Embry v. Ryan, 11 So.3d 408, 410 (Fla. Dist. Ct. App. 2009) (overruling a trial court decision that had declined to recognize and enforce an out-of-state adoption judgment). It is now clear that where the party had been properly adjudicated to be a parent by the court of another state, that judgment must be given "exacting" full faith and credit in other states. V.L. v. E.L., 136 S. Ct. 1017, 1020, 1022 (2016) (per curiam) (quoting Baker v. Gen. Motors Corp., 522 U.S. 222, 233 (1998)).

[89].   While states are constitutionally required to recognize and enforce out-of-state judgments, including parentage judgments, it is generally constitutionally permissible for courts to apply their own state's law to an action properly pending before them. See, e.g., Courtney G. Joslin, Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts, 91 B.U. L. Rev. 1669, 1718 (2011) ("Modern choice-of-law doctrine recognizes that a state can constitutionally apply its own laws to an action so long as the chosen law has 'a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.'" (citation omitted)); see also Katherine Florey, State Courts, State Territory, State Power: Reflections on the Extraterritoriality Principle in Choice of Law and Legislation, 84 Notre Dame L. Rev. 1057, 1058-59 (2009) (stating that it is likely constitutionally permissible for a court to apply forum law to a case if the court properly has jurisdiction over the action).

[90].   I previously called for the creation of such a system. Joslin, supra note 83, at 43-45.

[91].   Unif. Parentage Act § 613 (Unif. Law Comm'n 2017).

[92].   Id.

[93].   Id.

[94].   As discussed below, the UPA (2017) does not eliminate all distinctions based on gender and biology; it continues to place weight on a woman's gestation of a fetus. See infra notes 112-115 and accompanying text.

[95].   See, e.g., Unif. Parentage Act § 201 (Unif. Law Comm'n 2002).

[96].   In addition to revising the Act to replace most gender-specific references with gender-neutral ones, the Act continues to include (as it has since its inception) a provision requiring parentage rules to apply in a gender-neutral manner to the extent practicable. Unif. Parentage Act § 107 (Unif. Law Comm'n 2017) ("To the extent practicable, a provision of this [act] applicable to a father-child relationship applies to a mother-child relationship and a provision of this [act] applicable to a mother-child relationship applies to a father-child relationship." (alterations in original)); see also Unif. Parentage Act § 21 (Unif. Law Comm'n 1973) ("Any interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. Insofar as practicable, the provisions of this Act applicable to the father and child relationship apply.").

[97].   Unif. Parentage Act § 201 (Unif. Law Comm'n 2017); see also id. § 201 cmt. Thus, as NeJaime urges, the UPA (2017) moves "away from separate regulations of maternity and paternity and instead work[s] toward the general regulation of parentage." NeJaime, supra note 2, at 2337-38.

[98].   See, e.g., Unif. Parentage Act § 703 (Unif. Law Comm'n 2002) ("A man who provides sperm for, or consents to, assisted reproduction by a woman as provided in Section 704 with the intent to be the parent of her child, is a parent of the resulting child.").

[99].   See, e.g., In re A.E., No. 09-16-00019-CV, 2017 WL 1535101, at *10 (Tex. App. Apr. 27, 2017), petition for review pending ("Reading the [assisted reproduction statute based on UPA (2002)] as requested by Appellant would affect a substantive change to the respective statutes, and it would materially alter the requirements outlined in subsection (a) and (b) of the ART statute as to husband and wife. The substitution of the word 'spouse' for the words 'husband' and 'wife' would amount to legislating from the bench, which is something that we decline to do.").

[100]. See, e.g., Unif. Parentage Act § 703 (Unif. Law Comm'n 2017) ("An individual who consents under Section 704 to assisted reproduction by a woman with the intent to be a parent of a child conceived by the assisted reproduction is a parent of the child."); see also, e.g., id. § 102(13) (defining "intended parent" to mean "an individual, married or unmarried, who manifests an intent to be legally bound as a parent of a child conceived by assisted reproduction").

[101]. NeJaime, supra note 2, at 2345. NeJaime relies on my own call for a gender-neutral consent-to-parent rule. Joslin, supra note 39, at 1183 (arguing that "the most appropriate solution is to apply the consent = legal parent rule to all children born through alternative insemination, regardless of the marital status, gender, or sexual orientation of the participants").

[102]. Some states do include such a requirement. For example, in Louisiana, surrogacy is permitted only when the intended parents are a married husband and wife who are using only their own gametes. La. Stat. Ann. § 40.32(1) (2012 & Supp. 2017) (providing that "'[b]iological parents' means a husband and wife, joined by legal marriage recognized as valid in this state, who provide sperm and egg for in vitro fertilization, performed by a licensed physician, when the resulting fetus is carried and delivered by a surrogate birth parent who is related by blood or affinity to either the husband or wife").

[103]. See, e.g., Unif. Parentage Act § 703 (Unif. Law Comm'n 2017) ("An individual who consents under Section 704 to assisted reproduction by a woman with the intent to be a parent of a child conceived by the assisted reproduction is a parent of the child."); id. § 809(a) ("Except as otherwise provided in subsection (c) or Section 810(b) or 812, on birth of a child conceived by assisted reproduction under a gestational surrogacy agreement, each intended parent is, by operation of law, a parent of the child."); see also, e.g., id. § 102(13) (defining "[i]ntended parent" to mean "an individual, married or unmarried, who manifests an intent to be legally bound as a parent of a child conceived by assisted reproduction").

[104]. Indeed, a new section was added to article 5, addressing genetic testing, that drives this point home. The new section 502(b) states that genetic testing cannot be used to challenge the parentage of an individual who is a parent under articles 7 or 8. This new subsection was added because "parentage of an intended parent under articles 7 and 8 is not premised on a genetic connection." Id. § 502 cmt. Therefore, "the lack of genetic connection should not be the basis of a challenge to the individual's parentage." Id.

[105]. Id. § 801 (laying out criteria for intended parents through surrogacy).

[106]. For an earlier consideration of these questions regarding the application of the marital presumption to same-sex couples, see Susan Frelich Appleton, Presuming Women: Revisiting the Presumption of Legitimacy in the Same-Sex Couples Era, 86 B.U. L. Rev. 227 (2006).

[107]. See, e.g., Leslie Harris et al., Family Law 865 (4th ed. 2014) ("In all states a child born to a married woman is at least rebuttably presumed to be the child of her husband.").

[108]. See, e.g., NeJaime, supra note 2, app. A (indicating that only 11 states and the District of Columbia have statutory gender-neutral marital presumptions).

[109]. See, e.g., Turner v. Steiner, 398 P.3d 110, 114 (Ariz. Ct. App. 2017), abrogated by McLaughlin v. Jones ex rel. Cty. of Pima, 401 P.3d 492, 498 (Ariz. 2017) ("The first flaw is that Obergefell does not extend so far as to require the courts to modify statutory schemes relating to same-sex parenting."); In re A.E., No. 09-1600019-CV, 2017 WL 1535101, at *8 (Tex. App. Apr. 27, 2017), petition for review pending ("Furthermore, we conclude that Obergefell does not require this Court to act as the Legislature and re-write the Texas statutes that define who has standing to bring a [suit affecting the parent-child relationship].").

[110]. See, e.g., McLaughlin, 401 P.3d at 498 ("In sum, the presumption of paternity under § 25-814(A)(1) cannot, consistent with the Fourteenth Amendment's Equal Protection and Due Process Clauses, be restricted to only opposite-sex couples. The marital paternity presumption is a benefit of marriage, and following Pavan and Obergefell, the state cannot deny same-sex spouses the same benefits afforded opposite-sex spouses.").

[111]. Unif. Parentage Act § 204(a)(1)(A) (Unif. Law Comm'n 2017) ("An individual is presumed to be a parent of a child if: . . . the individual and the woman who gave birth to the child are married to each other and the child is born during the marriage . . . .").

[112]. Id. § 201(1).

[113]. See NeJaime, supra note 2, at 2340 (arguing that some variation of the marital presumption should apply to the spouse of a legal father).

[114]. While NeJaime argues that some variation of the marital presumption should apply to the spouse of a legal father, he agrees that the traditional presumption should not be applied to that scenario. Instead, he proposes a "two-tiered system of marital presumptions." Id. A fully gender-neutral marital presumption, he concedes, "may insufficiently protect the rights of women who give birth." Id.

[115]. Unif. Parentage Act art. 8 cmt. (Unif. Law Comm'n 2017) ("While UPA (2017) continues to permit both types of surrogacy, UPA (2017) imposes additional safeguards or requirements on genetic surrogacy agreements.").

[116]. Only four jurisdictions expressly permit genetic surrogacy by statute. These jurisdictions are Florida, Maine (for close relatives only), Virginia, and the District of Columbia. E.g., id. art. 8 pt. 3 cmt.

[117]. For example, in Maine, genetic surrogacy arrangements are permissible only if the surrogate is a family member. Me. Rev. Stat. Ann. tit. 19-A, § 1931(1)(E) (2017) (providing that the surrogate must "[n]ot have contributed gametes that will ultimately result in an embryo that she will attempt to carry to term, unless the gestational carrier is entering into an agreement with a family member"). In Florida, Virginia, and the District of Columbia, the provisions give a genetic surrogate additional time in which to withdraw her consent. D.C. Code Ann. § 16-411(4) (West 2017) ("In the case of a child born by a traditional surrogate, [the surrogate can withdraw her consent] within 48 hours after the birth of the child."); Fla. Stat. Ann. § 63.213(2)(a) (West 2017) (providing that the surrogate (what Florida calls a "volunteer mother") has the right to rescind her consent "any time within 48 hours after the birth of the child, if the volunteer mother is genetically related to the child"); Va. Code Ann. § 20-161(B) (West 2017) ("Within 180 days after the last performance of any assisted conception, a surrogate who is also a genetic parent may terminate the agreement by filing written notice with the court.").

[118]. The UPA (1973) grew out of work by Krause. See, e.g., Krause, supra note 52, at 829.

[119]. See, e.g., McLaughlin v. Jones ex rel. Cty. of Pima, 401 P.3d 492, 500-01 (Ariz. 2017) (urging the legislature to act); Sinnott v. Peck, No. 2015-426, 2017 WL 5951846, at *12 (Vt. Dec. 1, 2017) ("We continue to urge the Legislature to take action in this realm, and hope that the study commissioned by the Legislature and cited by the dissent leads to the enactment of statutory revisions that render this decision, and others cited above, obsolete. The global perspective, consideration of extensive empirical evidence, and public input and accountability of the legislative process are better suited than case-by-case adjudications to developing a coherent law of parental status." (citation omitted)).

[120]. McLaughlin, 401 P.3d at 498 ("The marital paternity presumption is a benefit of marriage, and following Pavan and Obergefell, the state cannot deny same-sex spouses the same benefits afforded opposite-sex spouses.").

[121]. Id. at 501.

[122]. See Unif. Parentage Act § 2 (Unif. Law Comm'n 1973) ("The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.").

[123]. In this way, the UPA (2017) is a concrete example of the very dynamic that NeJaime identified in Marriage Equality and the New Parenthood: the UPA (2017) "shows how marriage equality can facilitate the expansion of intentional and functional parentage principles across family law-not only inside but also outside marriage, for both same-sex and different-sex couples." NeJaime, Marriage Equality, supra note 11, at 1190; see also Courtney G. Joslin, The Gay Rights Canon and the Right to Nonmarriage, 97 B.U. L. Rev. 425 (2017) (arguing that the Court's gay rights decisions can support rather than foreclose protections for those living outside of marriage).

[124]. NeJaime, supra note 2, at 2268 (footnote omitted).


January 8, 2018

The California Supreme Court’s Most Important Environmental Law Decisions of 2017

[Cross-posted from Legal Planet.]

By Richard Frank

As 2017 comes to a close, let's take a moment to assess the California Supreme Court's most significant environmental law decisions of the year.

There are a large number of decided cases to choose from: as has been true over the past decade, in 2017 the California Supreme Court devoted a substantial portion of its civil docket to cases of interest to environmental lawyers, organizations and the regulated community.  With that caveat, here's my list-an admittedly subjective one-of the Court's five most important environmental decisions of 2017:

5. Lynch v. California Coastal Commission.   This regulatory takings case arose after a coastal storm destroyed a seawall built and maintained by coastal landowners in San Diego County.  The landowners sought a permit from the California Coastal Commission to rebuild the seawall.  The Commission granted the permit, but limited its term to 20 years in order to give the  Commission a future opportunity to assess whether sea level rise, increased intensity of coastal storms and other projected impacts of climate change warrant a different regulatory strategy prospectively.  The landowners then rebuilt the seawall and simultaneously sued the Commission, claiming the fixed 20-year permit term triggered a compensable taking of their property rights.  The Supreme Court unanimously disagreed, concluding that the landowners had forfeited their right to bring their regulatory takings claim when they proceeded to rebuild the seawall.  As Justice Carol Corrigan succinctly put it in her decision on behalf of a unanimous Court: "Plaintiffs obtained all the benefits of their permit when they built the seawall.  They cannot now be heard to complain of its burdens."

(The Lynch decision would have been even more significant had Court proceeded to address the merits of the property owners' takings claim.  Many observers had hoped the justices would use the case as a vehicle to determine how much latitude California land use agencies have to address and respond to the looming natural resource, economic and regulatory challenges presented by climate change.  Alas, that was not to be.  Nevertheless, Lynch establishes a forceful precedent that regulatory takings plaintiffs cannot have it both ways.)

4.  City of San Buenaventura v. United Water Conservation District  One of the many reasons modern California environmental law is so fascinating is that it draws upon-and inevitably intersects with-so many other areas of public law.  City of San Buenaventura is a prominent example.  The issue was whether a local water district's imposition of a "groundwater pumping charge" on well operators to fund regional water conservation measures violates two voter-enacted state constitutional provisions that limit the authority of state and local governments to collect revenue through taxes, fees and other charges.  Specifically, the City of Ventura, which pumps large amounts of groundwater to deliver to its residential customers, claimed that the district's pumping charge: a) contravened Proposition 218, which requires a vote of the electorate before a local agency can impose a tax, assessment or fee on property "as an incident of property ownership"; and/or b) violated Proposition 26, which similarly requires a public vote before a local government can assess many-but not all-levies, charges and exactions.  The Supreme Court unanimously ruled that Proposition 218 was inapplicable to the district's groundwater pumping charge and that the charge likely did not violate the provisions of Proposition 26.  (The justices did remand the case to the Court of Appeal to determine whether the city's allocated share of the conservation fees by the district "bear a fair or reasonable relationship to the [city's] burdens on, or benefits received from" the defendant water district's conservation programs.)

The City of San Buenaventura decision is significant for two interrelated reasons: many of California's groundwater basins are severely overdrafted, and state water managers are only now belatedly attempting to adopt remedial measures like the conservation efforts that the contested groundwater pumping charge is intended to address.  Second, the landmark Sustainable Groundwater Management Act (SGMA) passed by the California Legislature in 2014 requires local governments to organize into Groundwater Sustainability Agencies which are empowered to assess fees on groundwater necessary to fund the GSAs development and enforcement of Groundwater Sustainability Plans over the next few years.  City of San Buenaventura finds that these groundwater conservation efforts, properly implemented, do not require a popular vote before the GSAs and water districts generally assess the fees on groundwater users and pumpers needed to fund those conservation efforts.  That's a big deal.

3. California Cannabis Coalition v. City of Upland.  Like the City of San Buenaventura case, California Cannabis Coalition is not your typical environmental law case.  While it does arise in a burgeoning corner of California land use law-whether and to what extent local governments can ban marijuana dispensaries from their jurisdictions-the case involves the intersection of the aforementioned Proposition 218 (limiting the ability of local governments to increase taxes) and another key state constitutional provision: the scope of California voters' initiative power.  Specifically, the City of Upland had in effect a land use ordinance banning medical marijuana dispensaries.  Marijuana advocates proposed a local voter initiative to repeal that ban and require that dispensary owners pay the city an annual "licensing and inspection fee" of $75,000.  City officials refused to submit the initiative to the voters in a special election, concluding that Proposition 218 required that a vote on the initiative await take place in a subsequent general election.  The initiative proponents sued, claiming that the constitutional right of voters to utilize the initiative process trumps compliance with Proposition 218.  The Supreme Court agreed, ruling that Proposition 218 does not restrict the ability of voters to impose taxes via the initiative process.

As Legal Planet colleague Ethan Elkind noted in an earlier post analyzing California Cannabis Coalition, the decision has important consequences for a wide array of future land use, environmental and transportation projects.  He aptly observes:

"The potential result is that any citizen, nonprofit or business group that wants to place a special tax measure or fee on the ballot for something like a new school or transit line may only need a simple majority voter approval, provided they can get enough signatures for their measure.  And unless barred by some other law, I gather there's nothing stopping agency representatives or elected leaders in their individual capacities from sponsoring these campaigns in ways that essentially amount to the city, county, or agency sponsoring the measure themselves...

At a time when California is struggling to reduce emissions from the transportation sector due to growing commutes from the lack of housing and transit near jobs, this decision could be significant for finally allowing locals the flexibility they need to fund these investments. Under California Cannabis Coalition vs. City of Upland, local government finance for a host of environmentally significant projects, from parks to transit to infill housing infrastructure, may have just gotten easier to pass."

2. Friends of the Eel River v. North Coast Railroad Authority.  Continuing a pattern over the past decade, the California Supreme Court's most significant environmental law decisions in 2017 concerned the California Environmental Quality Act (CEQA).  Friends of the Eel River raised a CEQA issue not previously addressed by the justices: whether, and in what circumstances, CEQA is preempted by federal law.  The specific issue in Friends of the Eel River was whether CEQA's application to publicly-owned railroad projects in California is trumped by the federal Interstate Commerce Commission Termination Act (ICCTA).  In a 6-1 decision authored by Chief Justice Tani Cantil-Sakauye, the Court held that while CEQA's application to privately-owned railroad projects in California is preempted by ICCTA, CEQA continues to apply to at least some publicly-owned and operated railroad projects.

As I commented in an earlier post, the majority opinion in Friends of the Eel River is less than a model of clarity.  But it is unquestionably an important decision-especially with respect to CEQA's application to another, larger and more controversial public railroad project: California's High Speed Rail initiative.  And the question of federal preemption of CEQA's application to public railway projects is far from settled: the U.S. Court of Appeals has pending before it another CEQA preemption case involving...California's High Speed Rail project.  And federal regulators responsible for implementing the ICCTA have opined administratively that this federal law does indeed preempt CEQA.

1. Cleveland National Forest Foundation v. San Diego Association of Governments.  In my opinion, 2017's most consequential environmental law decision was another complex CEQA case.  Cleveland National Forest Foundation involved the adequacy of an environmental impact report prepared by the San Diego Association of Governments (SanDAG) in conjunction with that entity's adoption of a regional transportation plan for the San Diego metropolitan area.  That plan, in turn, was mandated under SB 375, landmark climate change legislation requiring unprecedented linkage between California transportation and land use planning efforts, with the overarching goal of reducing the state's aggregate greenhouse gas emissions.  (One of the many reasons this decision is so important is that it's the Supreme Court's first opportunity to address SB 375.)

As Legal Planet colleague Sean Hecht recounts in an earlier and more detailed post on the Cleveland National Forest Foundation decision,  the justices issued something of a split opinion.  On the one hand, the Court's 6-1 decision finds SanDAG's EIR to be legally adequate.  At the same time, the justices spend considerably time and effort discussing the overarching need of CEQA documents to make a thorough and good faith effort to address the impacts of climate change.  And the decision also makes clear that climate change analysis under CEQA is an evolving science-the depth and sophistication of climate change analysis required in a current CEQA document likely exceeds that of the 2011 SanDAG EIR.  Inasmuch as the intersection of climate change impacts and CEQA will be an increasingly crucial aspect of CEQA analysis prospectively, Cleveland National Forest Foundation is required reading for CEQA attorneys, planners and scholars.

(One postscript: in a sense, the most important California Supreme Court case of 2017 is the one the justices decided not to decide.  California Chamber of Commerce v. California Air Resources Board was a challenge to the legality of the Board's cap-and-trade program, a key element of CARB's multifaceted strategy to reduce California's greenhouse gas emissions.  Early in 2017, the California Court of Appeal in Sacramento rejected the regulated community's state constitutional challenge to CARB's cap-and-trade program, ruling that CARB's auctioning of GHG emission allocations is not a "tax" within the meaning of California's Proposition 13, and therefore not subject to the measure's two-thirds vote requirement by the California Legislature.  Industry petitioned the Supreme Court for review of that decision, but the justices denied review this past summer.  Had the justices agreed to hear the case, it would have kept CARB's cap-and-trade program under a cloud of doubt and political controversy.  But with the Court of Appeal's now-final decision upholding the constitutionality of the cap-and-trade program, that uncertainty was eliminated and a political consensus quickly emerged, allowing the state Legislature to reaffirm the cap-and-trade program and extend it through 2030 via a statute passed earlier this year.)

2017 demonstrates that the California Supreme Court remains the nation's most influential state court when it comes to environmental law and policy.