hunter of justice

Happy Anti-Colonialism Day!

...We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States....

Dellinger on Souter on social change and the Supreme Court

By Walter Dellinger, from Slate, writing on the role of public opinion in Supreme Court decision-making:

...It was not a mere coincidence that when the court stuck down homosexual sodomy laws in Lawrence v. Texas in 2003, the number of states that still had such laws was about the same as the number of states that still had de jure school segregation when Brown was decided—in each case, the retrograde states made up about one-fourth of the country. In contrast, when the court sustained state laws banning the use of lethal medication in Washington v. Glucksberg, the rejected claim of a right to physician-assisted suicide had not yet been recognized by even a single state.

What makes these questions so timely is that David Souter ... addressed these issues in a very powerful way just [before leaving the Court] in an passage that may well have been intended as a valedictory message to the court and a caution to those who litigate on behalf of individual liberty. In his dissent in the DNA case, District Attorney's Office v. Osborne, Souter wrote extensively about issues of substantive liberty that he did not need to address in order to decide the case before him. He obviously had some things he really wanted to say before hanging up his black robe.

In his essay-within-an-opinion, Souter clearly had the sweep of the court's future in mind, and not just any single issue. It is still hard to avoid the conclusion that one issue in his mind was gay marriage. His carefully nuanced message both defends the legitimacy of judicial recognition of "non-traditional" rights and cautions against a premature quest for national judicial rules.

Souter, recognizing the value of "continuity with the past," accepts the proposition that tradition is a "serious consideration" in judging whether a practice is "outside the realm of reasonable governmental action." He rejects, however, the notion that tradition defines and limits the scope of the liberties entitled to judicial protection against hostile legislation.

A true originalist, Souter refuses to limit individual rights to the time-bound set of liberties that the Framers of the 14^th Amendment would have include had they chosen to adopt a specific list. The short answer is that the Framers did not so choose. They deliberately wrote with a broad brush and left particular applications to the future. In carrying out that mandate, Souter writes, the court must look to "widely shared understandings within the national society" that can change "as interests claimed under the rubric of liberty evolve into recognition."

Having defended the concept of evolving liberty, Souter then turns to the important question of when it would be "premature for the Judicial Branch to decide whether … a general right should be recognized."

"The beginning of wisdom," he writes, "is to go slow." Before declaring "unsympathetic state or national laws arbitrary to the point of being unconstitutional," he writes, a wise court will "recognize how much time society needs in order to work through a given issue."

His opinion then takes what seems to be an extraordinarily personal turn. He may be speaking of himself (or his rural neighbors) when his says that "[w]e can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally." Sometimes, he says, "an attachment to the familiar and the limits of experience" limit "an individual's capacity to see the potential legitimacy of a moral position."

So, too, it is with the broader society, which "needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim." Souter's final message to his conservative colleagues is that conceptions of liberty evolve. And his last caution to those litigators pushing the frontiers of liberty is that nations, like individuals, need time to assimilate new thinking....

Obama promises "robust" conscience clause exemption for health care workers

Both the Washington Post and the Catholic News Service are reporting that President Obama assured a group of religion writers that he would insist on strong conscience clause exemptions for health care workers who object to certain medical procedures. Shortly before the end of the Bush administration, HHS issued new regulations that would prevent any HCW or hospital from being required to perform an abortion or other procedure to which they had a moral objection. The ACLU filed a lawsuit to stop the regulations from taking effect. Obama withdrew them, but is now promising that his administration's version will also be "robust," although only in the sense that it will be equivalent in strength to the status quo prior to the Bush regs. Especially given the attention being paid to religious exemptions in the same-sex marriage context, I think it's going to be important to watch how the new administration conceptualizes the trade-offs between rights in framing the terms of an exemption.

Here's the more detailed Catholic News Service report:

President Barack Obama told a round table of religion writers July 2 that he continues to be profoundly influenced by the late Cardinal Joseph Bernardin of Chicago, whom he came to know when he was a community organizer in a project partially funded by the Catholic Campaign for Human Development.

Obama said his encounters with the cardinal continue to influence him, particularly his "seamless garment" approach to a multitude of social justice issues. He also told the group of eight reporters to expect a conscience clause protection for health care workers currently under review by the administration that will be no less protective than what existed previously....

The president [said]  that he expects an ongoing review of conscience clause regulations will result in a continuation of protections that have long existed, allowing people who are morally opposed to abortion or contraceptives to decline to provide them in the line of work without repercussions.

Obama said in some ways he sees his first meeting with the pope as the same as any contact with a head of state, "but obviously this is more than just that. The Catholic Church has such a profound influence worldwide and in our country, and the Holy Father is a thought leader and opinion leader on so many wide-ranging issues. His religious influence is one that extends beyond the Catholic Church."...

On conscience clauses, the president said he has consistently believed in them. As a state legislator, he said, he supported "a robust conscience clause in Illinois for Catholic hospitals and health care providers." Soon after he took office as president, the administration reversed what Obama described as "eleventh-hour change(s) in conscience clause provisions that were pushed forward by the previous administration."

According to Obama, the Bush administration change, which took effect two days before the new president was sworn in, hadn't been "properly reviewed and thought through, and he added that there were some concerns about how broad it might be and what its manifestations would be once implemented."

In general, that change codified longtime federal statutes that prohibit discrimination against health professionals who decline to participate in abortions or other medical procedures because of religious or moral objections.

In his speech at Notre Dame, Obama called for a "sensible conscience clause." and said he wished to "honor the conscience of those who disagree with abortion."...

"We will be coming out with, I think, more specific guidelines," he said. "But I can assure all of your readers that when this review is complete there will be a robust conscience clause in place. It may not meet the criteria of every possible critic of our approach, but it certainly will not be weaker than what existed before the (Bush administration's) changes were made."...

Will the New Hampshire religious exemption become a model for new marriage laws?

From The National Journal:

...When the New Hampshire law goes into effect Jan. 1, it will override the state's employee nondiscrimination laws that protect gays and lesbians. Religious organizations will be able to deny gay couples housing designated for married people and marriage counseling, and fraternal societies like the Knights of Columbus won't have to offer benefits to their employees' same-sex spouses, according to Robin Fretwell Wilson, a law professor at Washington and Lee Law School who lobbied for the New Hampshire protections.

In the Granite State, such exemptions were crucial to the bill's passage. Gov. John Lynch, who personally opposes gay marriage, refused to sign the bill until wide-ranging religious exemptions were added....

"At some point you've got to say, 'We're gonna get that law, and we've got to salvage religious liberties as the next best option,'" said William Duncan, president of the conservative Marriage Law Foundation....

Leading the charge on conscience exemptions are a half-dozen lawyers, some of whom support gay marriage and others focused on safeguarding religious freedoms. They lobbied Lynch this spring and even pressed for broader exemptions that would have allowed small-business owners to deny services to gay couples ...

In a May 22 letter to Lynch, law professors Andrew Koppelman (Northwestern), Michael Perry (Emory) and Douglas Laycock (University of Michigan), along with Marc D. Stern of the American Jewish Congress, argued that the exemptions would not "enshrine bigotry" but rather "enshrine religious liberty and the live-and-let-live traditions of the American people."

Many of those same lawyers and others are trying to push the needle this summer in New York, where they are encouraging lawmakers to include religious protections in a same-sex marriage bill there....

"In California, you only needed to flip 2 percent of voters," Laycock said, referring to Proposition 8's victory last November by a 52-48 margin. "If you put in the religious exemption, I think you flip that 2 percent."

That still leaves a sizable minority who support marriage restrictions, and talk of a truce may be premature. "This doesn't go to our deepest concern, which is that changing the definition of marriage is bad for society, because we believe children need a mother and a father," Duncan said. "I think the ideological polarization is a little bit sharper than some people think."...

Perry update: Judge Walker sets initial dates for trial preparation in Prop 8 challenge

In a hearing this morning in San Francisco that was originally scheduled for consideration of a possible preliminary injunction, U.S. District Court Judge Vaughn Walker did exactly what he had indicated in a prior order: he effectively denied the preliminary injunction by merging it with full-scale consideration of the merits. Then he began scheduling the steps prior to a trial.

From the San Jose Mercury:

Walker gave lawyers on both sides until early August to sort through the factual issues in order to establish a framework for a trial that could take place by the end of the year. ... Walker envisions an expansive, unprecedented exploration of the civil rights challenge over gay marriage, ranging from the history of discrimination against gays to arguments over the impact of same-sex marriage on traditional marriage and child-rearing.

Appeals court in India strikes down sodomy law

In a first for India, the Delhi High Court ruled today in Naz Foundation v Government of Delhi that Indian Penal Code Section 377, a law prohibiting sodomy, is unconstitutional as violative of privacy and equality rights. Plaintiff in the case was an AIDS service organization.  The government must now decide whether to appeal to the national supreme court or to accept the decision.  In briefs before the court, different agencies within the government split on whether to defend the law. The court responded by requiring scientific evidence to support arguments that the law served a public purpose. 

CLARIFICATION: Rex Wockner, who first reported that the decision had come down, has a new post, citing several Indian sources, stating that the ruling will apply to all of India until and unless it is appealed to the Supreme Court and reversed.

A brief excerpt from the 105-page decision:

129. The notion of equality in the Indian Constitution flows from the 'Objective Resolution' moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this Resolution wished that the House should consider the Resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that Resolution. He said, 'Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation's passion . . . . 

130. If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as "deviants" or 'different' are not on that score excluded or ostracised.

131. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non- discrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.

132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution....

DoJ gets one right, decides not to appeal Schroer decision

In a good but overdetermined move, the Justice Department has announced that it will not appeal a district court's ruling that discrimination based on gender identity is sex discrimination and therefore invalid under Title VII. The case, litigated by the ACLU LGBT Rights Project, is Schroer v. Billington, 577 F.Supp.2d 293. For more background, see the ACLU's information page about the case and previous posts.

This is the case that I have been saying for months would be an outrage if Justice decided to appeal.  Unlike cases involving DoMA, it does not call into question the validity of any federal statute. From the defendant's point of view, it finds that a particular employment decision was unlawful, and implicitly directs the federal government not to discriminate based on gender identity. In a Republican Justice Department, however, an appeal would have been likely because the law is not settled on the question of whether gender identity discrimination violates Title VII (although the courts have been pretty steadily moving in that direction).

In other words, this is precisely the kind of case where DoJ traditionally has broad discretion not to appeal a decision that it has lost, where public policy concerns dictate otherwise. And the community outrage over the Smelt brief surely eliminated whatever doubt there may have been about pursuing the appeal. So, good for the Justice Department; they did the right thing.

The miracle of rebranding: abstinence = health

By Jessica Valenti, from The Nation:

...[A]bstinence organizations are not going away. In fact, they're getting organized. Well aware that their cause is in trouble and unpopular, purity proponents are revamping their image to appear more mainstream. ...

One of the "Strategic Objectives" now listed on the National Abstinence Education Association (NAEA) website is "Rebranding the abstinence message." So when the NAEA met for its annual lobby day in March, high on the list of priorities was developing a strategy for continuing to receive federal dollars. Joe Sonka, managing editor of the Advocates for Youth blog Amplify, wrote of the lobby day, "Instead of abandoning their demonization of condoms and adherence to social conservative ideology over sound science, they would simply rebrand themselves as a curriculum that 'wasn't just about abstinence,' but was all about 'holistic approaches' to 'healthy lifestyle choices.'"

At an April 29 Capitol Hill briefing, [the head of the NAEA] told the room that abstinence-only education is "not a 'just say no' message." "This is not abstinence only, this is a holistic message that prepares and gives students all of the information they need to make healthy decisions," [she] said. In fact, the NAEA isn't even calling its programs "abstinence only" anymore--now they're "abstinence centered."

Similarly, WhyKnow--a major provider of abstinence-only education curriculums--recently changed its name to On Point, its tag line to "Direction for Life" and hired PR company Maycreate Idea Group to help recast its image. Lesley Scearce, executive director of On Point, said in an article for the Chattanoogan that the organization is trying to "get teens involved in new, positive directions that lead to a healthier, more fulfilling life. Without a re-naming, re-branding and re-positioning, this new direction wouldn't have been possible."...

The good news in all of this is President Obama's budget cutting most abstinence-only education funding and seeking to redirect the funds to "teen pregnancy prevention programs." The bad news is that 25 percent of the $164 million marked for teen pregnancy prevention would be open to abstinence-only programs, and the language in the budget doesn't make room for initiatives to curb sexually transmitted infections....

Judge in Perry case wants trial preparation to begin re: Prop 8

U.S. District Court Judge Vaughn Walker, who is hearing the Perry v. Schwarzenegger case, has issued an order changing what had been scheduled as a hearing on a preliminary injunction on Thursday into a status conference, so that the case can skip the preliminary injunction phase and move directly to discovery and other trial preparation. This is a smart move by Judge Walker, and doesn't really cost the plaintiffs much, since the chances were virtually nil that the judge would have enjoined the enforcement of Prop 8 at the outset of the case. The effect of this order will be to delay the case reaching the Ninth Circuit Court of Appeals, but when it does go up on appeal, there will be a full evidentiary record.

The order also grants the motion to intervene filed by Prop 8 proponents, who are now its lead defenders, since AG Jerry Brown has declined to defend its constitutionality. They have retained Cooper & Kirk, a virtual stable of ex-Reagan and Bush administration attorneys. Cooper & Kirk will get to play big litigator smackdown with Ted Olson and David Boies.

Most interesting, though, are the questions that Judge Walker identified for both further briefing and factual development.  He has directed the parties to produce evidence supporting their respective positions on a broad range of questions:

• "The facts necessary to establish the appropriate level of scrutiny under the Equal Protection Clause," including whether sexual orientation affects the ability to contribute to society and "the relative political power of gays and lesbians"
• Facts supporting the proffered state interests in preserving Prop 8, including "whether the exclusion of same-sex couples from marriage leads to increased stability in opposite-sex marriage" and " whether a married mother and father provide the optimal child-rearing environment and whether excluding same-sex couples from marriage promotes this environment"
• On the sex discrimination claim, the judge identified the question of "whether requiring one man and one woman in marriage promotes stereotypical gender roles."
• Relevant to the question of whether there was discriminatory intent behind Prop 8, the court may look into evidence of voters' motivations, including advertisements.
• Lastly, the court indicated that there may need to be a record made on "the differences in actual practice of registered domestic partnerships, civil unions and marriage, including whether married couples are treated differently from domestic partners in governmental and non-governmental contexts."

This is going to be a hell of an evidentiary record!

HT: the new order was first reported by Law Dork.

Labor Secretary Solis "proud of pride;" condemns defacement of posters

Secretary of Labor Hilda Solis  reacted strongly to news that many DoL posters advertising Pride Month had been torn down or defaced. It's a small thing, but it never would have happened in a Republican administration.

From: Secretary Hilda Solis
Sent: Friday, June 26, 2009 1:40 PM
Subject: Proud of Pride

Dear Colleagues:

... As a founding member of the LGBT Caucus in the U.S. House of Representatives, I was particularly pleased to have the opportunity to be the first Secretary in the department’s history to publicly recognize Pride Month. I am very proud of that.

It appears, however, that some members of the Labor Department team have a different view, as it has come to my attention that most of the posters have been continually defaced or removed. On several occasions, even the poster frames have been torn completely off the elevator walls.

My reaction to this news has ranged from disappointment to outrage.

I do not believe these actions represent the majority of our employees, so I refuse to let this situation define us. But I do want to make myself absolutely clear: Respect for others is non-negotiable at the U.S. Department of Labor....

The posters will stay up until the end of the month, and will be replaced immediately if they are removed or destroyed. This is a small way to remind everyone here how I, and most of our colleagues, feel about this issue....

Hilda L. Solis

U.S. Secretary of Labor

Source: Think Progress; HT: Lisa Duggan

Senate confirms Koh

On Friday, the Senate finally confirmed Harold Koh as Legal Advisor (the equivalent of General Counsel) to Secretary of State Hillary Clinton. The 62-35 vote came after four months of stalling tactics and fearmongering about whether Harold would be too receptive to non-U.S. law. What an idiotic waste. And it is long past time for the Senate to confirm Dawn Johnsen as head of OLC, and end the smear tactics directed at her.

Important new book on gay marriage

Lee Badgett's new book When Gay People Get Married is out soon from NYU Press; you can order it now.  Here's the description:

In order to find out the impact of same-sex marriage, M. V. Lee Badgett traveled to a land where it has been legal for same-sex couples to marry since 2001: the Netherlands. Badgett interviews gay couples to find out how this step has affected their lives. We learn about the often surprising changes to their relationships, the reactions of their families, and work colleagues. Moreover, Badgett is interested in the ways that the institution itself has been altered for the larger society. How has the concept of marriage changed? When Gay People Get Married gives readers a primer on the current state of the same-sex marriage debate, and a new way of framing the issue that provides valuable new insights into the political, social, and personal stakes involved.

The experiences of other countries and these pioneering American states serve as a crystal ball as we grapple with this polarizing issue in the American context. The evidence shows both that marriage changes gay people more than gay people change marriage, and that it is the most liberal countries and states making the first move to recognize gay couples. In the end, Badgett compellingly shows that allowing gay couples to marry does not destroy the institution of marriage and that many gay couples do benefit, in expected as well as surprising ways, from the legal, social, and political rights that the institution offers.

Correcting the record on the crazy criticism that the DoJ brief compared s/s marriage to "pedophilia and incest"

Big HT to Chris Geidner at Law Dork, who takes on the irresponsible attacks, led by John Aravosis, that accuse the DoJ brief in Smelt of comparing same-sex marriage to pedophilia and incest. Following is the detailed response that has been lacking:

John continues to write about “pedophilia” ... despite the fact that 16-year-old whose marriage was invalidated in the case cited in the brief — Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) — would today have reached the age of consent, if not the age at which a marriage would be found to be valid, in 32 states <http://en.wikipedia.org/wiki/Ages_of_consent_in_North_America#State_laws>... .  Moreover, as pointed out by PG in comments to the earlier post, this case was cited by none other than Lambda Legal in one of its own briefs <http://data.lambdalegal.org/pdf/252.pdf>  — for the same purpose it was cited in the Smelt brief.  The LGBT equality legal group wrote:

Conventional choice of law and comity principles are routinely applied in every state to address non-uniformity in many aspects of domestic relations laws, including disparities among states in the requirements for marriages or their dissolution.  See, e.g., Wilkins v. Zelichowski, 26 N.J. 370, 377-78 (1958).  These familiar legal tools, not the deprivation of the constitutional rights of a minority, offer the answer to any purported concern about uniformity with other states.

That John continues to write about “incest” is, as I have stated since the brief was filed, overstating facts in order to enrage.  One of the cases cited, Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961), is a regularly cited case in Family Law casebooks and law review articles regarding out-of-state marriage recognition.  For John, a lawyer, to repeatedly state that a lawyer citing a regularly cited case for a general proposition that “certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum” equates to the lawyer comparing same-sex marriages to incest is dishonest.  John knows that the brief is analogizing a state’s policy against recognizing one type of marriage to a state’s policy against recognizing another type of marriages.  Though a slight distinction, John knows that, as a lawyer, such distinctions matter.

The final case cited, In re Mortenson’s Estate, 316 P.2d 1106 (Ariz. 1957), is one with which I was unfamiliar but have found that both it and Catalano were cited by a Columbuia Law Review piece criticizing DOMA for “deep flaws in both aspects of the Act.”  Scott Ruskay-Kidd, Note, “The Defense of Marriage Act and the Overextension of Congressional Authority,” 97 Colum. L. Rev. 1435 (1997).  If opponents of DOMA have cited both of these cases since the year after its passage, then — as John knows — it would be bad-faith for a lawyer charged with defending the law to fail to raise arguments in its defense that previously have been raised even by opponents of the law.  Was this third case cite necessary?  Probably not, as the point was illustrasted by Catalano.  But to demonize the author of the brief and everyone on up to the President as comparing same-sex relationships to incest for doing so, as John has done repeatedly, is exceptionally unfair and dramatically overstates the proposition advanced in the brief.