hunter of justice

Justices skeptical of blanket anonymity for petition-signers

One can never be certain of anything from an oral argument, but it sure sounds like the Protect Marriage advocates who were seeking to block release of the names of persons who signed a petition to put Referendum 71 (which would have repealed the Washington state domestic partner law) on the ballot got shellacked this morning at the oral argument of Doe v. Reed. [Here's the transcript.] Early reports, including this one by Lyle Denniston at SCOTusblog, emphasized that James Bopp, arguing for those seeking anonymity, drew mostly hostile questions, including from Justice Scalia.  However, Tom Goldstein, also writing at SCOTUSblog, points out that the case as litigated below presented two issues: whether a law permitting release of signers' names is facially (i.e. always) unconstitutional, and whether releasing names in the circumstances of the R-71 vote should have been permitted.  Only the first question is now before the Supreme Court. Goldstein agrees with Denniston that the Court is unlikely to strike the Washington statute as facially unconstitutional, but he is predicting that there will be another round after that, in the lower courts, on whether the R-71 names should be made public. [More background here.]

Excerpts from both Denniston and Goldstein after the jump -->

Closing arguments in Perry set for June 16

At a hearing this morning, Judge Walker tentatively scheduled the long-delayed closing arguments in Perry v. Schwarzenegger for June 16. After hearing testimony for two weeks in January, Walker had delayed final arguments until he had time to review the evidence.

From AP:

But the break dragged on while civil rights groups that opposed the voter-approved measure fought turning over internal documents from the 2008 campaign to Proposition 8's sponsors. The groups, Equality California and the American Civil Liberties Union, finally agreed yesterday to supply the disputed documents.

Yusef Robb, a spokesman for the gay rights group that spearheaded the case, says there may be one final hurdle to the trial's end. Protect Marriage, the coalition of religious and social conservative groups that qualified the ban for the ballot and is now defending the measure in court, has asked Walker to strike some of the e-mails and memos written by Proposition 8 supporters that already were introduced as evidence in the trial.

The materials include some of the trial's most explosive elements, such as writings that claimed gays are more likely to be pedophiles and that allowing them to wed would cause young people to become homosexual. Lawyers for Protect Marriage told the judge in court papers filed last week that allowing the documents to remain in the trial record would violate the First Amendment freedom of association rights of the measure's supporters.

Walker on Wednesday asked to be fully briefed on that issue by May 10. He could set a separate hearing to resolve it before the closing arguments, Robb said.

States add more anti-abortion laws

When I worked at the Reproductive Freedom Project at the ACLU, the end of spring each year was a special time.  It meant that the legislatures in many of the smaller states were ending their annual legislative session, which meant no more crazy restrictive new laws, at least for another year. That moment can't come fast enough this spring, since 2010 has seen a big jump in the number and the restrictive intensity of state laws limiting the rights of women to reproductive choice.

Nebraska has just enacted two new statutes in this vein; a new Arizona law prohibits coverage of abortions in that state's insurance exchange, and Tennessee has a similar bill awaiting the governor's signature; and now Oklahoma has raised the stakes with a law mandating that women must see a fetal ultrasound and listen to a detailed description of the fetus before going forward, as well as a law granting immunity to doctors who do not inform pregnant women of fetal birth defects. [The Center for Reproductive Rights filed suit in Oklahoma yesterday seeking a TRO to stop enforcement.] Are these laws a sign of new power for the anti-choice movement or is 2010 an outlier year, perhaps fueled by a conservative energy spike coming off health reform in general and the Stupak amendment in particular?

Interesting analysis from Politico:

...“On the one hand, [the new laws are] part of an onslaught of restrictions that we see constantly,” says Nancy Northrup, President of the Center for Reproductive Rights... “But, that being said, these are both going farther that what we’ve seen before.” This year alone, the Center has filed lawsuits against six abortion-related laws—two in Oklahoma, two in Alaska, and others in North Dakota and Arizona—a caseload that Northrup describes as “higher than we’ve seen since the late 1990s. It’s a total uptick.” They’re currently tracking about 500 state-level bills that would curtail abortion rights...

Fourteen states [other than Oklahoma] do require the provision of an ultrasound prior to abortion, but Oklahoma goes further by requiring both the description of the fetus and that the ultrasound monitor be in sight. Oklahoma’s more restrictive law passed despite objections from Gov. Brad Henry (D), who had previously vetoed the bill.

The Nebraska law bans abortion after 20 weeks gestation on the basis that the fetus could feel pain. When it takes effect in October, the new regulation will likely be challenged as unconstitutional, largely because it bans pre-viability abortions. Numerous Supreme Court cases, including Roe v. Wade, identify viability as the point at which states can ban abortion, with exceptions for the life or health of the mother. Prior to viability, however, states can regulate, but not ban, the procedure....

These anti-abortion victories are a marked shift from just two years ago, when all three of the 2008 abortion-related voter initiatives failed. One in Colorado—arguably the most far-reaching of the three, as it would have declared personhood as beginning at conception—lost by a 46-point margin. Moreover, Nebraska and Oklahoma’s new laws are significantly more restrictive than the abortion restrictions that usually pass through state legislatures, measures that require parental notification for minors or a daylong waiting period prior to abortion.

There's a lot in play before the Supreme Court in Doe v. Reed

In terms of litigator star power, the case being argued before the Supreme Court today - Doe v. Reed - comes in a pretty distant second to the one the Court heard 10 days ago - Christian Legal Society v. Martinez. The CLS case featured a former Solicitor General arguing against a star scholar turned 10th Circuit judge, now returned to the academy.  Yet the CLS argument turned into a messy hash over the facts, and the case may end up with no decision on the merits. By contrast, Reed may lack superstar lawyers, but in the end it could produce a far more important decision.

In Reed, Petitioners are challenging the constitutionality of a Washington state statute that provides for the public disclosure of the names of persons who sign petitions to put a referendum on the ballot. The case arose out of a dispute over Referendum 71, which gave voters the option to repeal the state's domestic partners law, an option they declined.

The lgbt angle of the case is more than coincidental because petitioners and their supporters have argued for all it's worth - and gauging what it is worth may become a key factor in the case - that gay rights advocates intimidate people who support proposals like Referendum 71 or Prop 8. If nothing else, the case has provided an opportunity for Lambda Legal and other lgbt rights organizations to file a powerful amicus brief detailing the irrationality of those claims.

As I have noted before, the gay intimidation argument has surfaced as this year's latest variation on the old standby that gays control the banks -- oops, sorry, that was the Jews, but the gays control something they shouldn't control, which threatens right-thinking people. It is the conservatives' favorite new anti-gay argument, and the outcome in the Reed case may measure how far it has gotten them.

Doctrinally, Reed is all about speech. It pits an argument that signing a petition should be treated as core political speech, subject to the highest level of scrutiny, against an argument that the government has important interests in transparency and protection against fraud in signature-gathering that trump individual privacy. Lots of good questions, from both perspectives, seem likely -- the case is one of those professor or judge dream situations, in which it is easy to play devil's advocate from both sides.

Gay rights is not the only or even the major frame into which this case fits. The lawyer arguing for protecting the anonymity of those signing petitions is James Bopp, a conservative cause lawyer who successfully argued the Citizens United v. FEC case, which deregulated  corporate campaign contributions. Bopp has said that the Reed case is a stepping stone toward his long-term goal of eliminating all limits on financial contributions. His role has drawn an amicus brief in Reed from the Brennan Center at NYU Law School, which does not support either party, but stresses that financial contributions should be treated differently (and be made subject to more disclosure) than the identities of those who signed petitions.

All of these dynamics are operating at a moment when the Court seems to be on a libertarian streak in First Amendment issues - first the Citizens United opinion, then the unanimous rejection of a ban on videos depicting cruelty to animals. The Court's decision in Reed is likely to either consolidate or offset this nascent trend. Given how late in the term the case is being argued, it will almost surely be one of the last opinions issued - probably in early to mid June. But it may also be one of the most significant public law opinions this term.

ENDA not yet ready for its close-up?

This was supposed to be the week when ENDA went to mark-up, but that doesn't seem to be in the cards. The House Education and Labor Committee does not have ENDA on its calendar, and since the Committee is meeting in California on Friday, Wednesday is probably the last day this week when a mark-up could happen.  Maybe next week.

Meanwhile the right-wing knives are out in anticipation that ENDA will move soon. According to Roll Call, the 35 Republicans who voted for ENDA in 2007 are getting cold feet now that the bill includes protection against discrimination based on gender identity. Roll Call quoted three Republicans, including one co-sponsor of the bill, as saying that they were reconsidering their previous support. The Washington Times thundered that ENDA was "a direct attack on common sense."  So cheers to House Majority Leader Steny Hoyer, who despite his role as a moderate often voicing the concerns of blue dogs, told Congressional Quarterly that his support for ENDA and the principle of non-discrimination was a core commitment. 

This could be a squeaker.

Minow on law school curricular reforms

From a Harvard Law Record article on Dean Martha Minow's "state of the school" speech earlier this month:

...Until HLS’ curricular reform effort was launched in 2003, Minow said, refinements to Langdell’s curriculum followed shifting temporal interests and did not fundamentally alter its character. The focus on private law classes taught using the case method remained paramount. But at the turn of the millennium, debates over the effects of globalization, the growing clout of interdisciplinary research, and an increasing focus on alternative dispute resolution techniques begged inclusion in an ossifying law school curriculum.

These debates ultimately helped launch the Harvard effort at curricular reform... The review process ... took the novel step of looking at approaches used by other professional schools – and discovered that law school curricula were relatively static by comparison to disciplines like medicine, which had introduced much more hands on learning techniques.

In 2005, the effort paid off: the new curriculum was approved. It not only added new classes to the largely unchanged core curriculum developed for first year students by Langdell – a change considered so revolutionary at the time that, according to Minow, “people said they would leave the school,” acting as if “God created the contracts class as it is” – but allowed students, for the first time, to take different course options in their first year. But because of contention that students required guidance, the school developed an alternative to an undergraduate major system – sequences of recommended classes known as programs of study.

Substantively, the new curriculum included not only the popular new class in legislation and regulation, but an elective in international law – one which had the desired effect, according to Minow, of unsettling students’ assumptions about law. The problem solving course designed for 1Ls’ January term was finally introduced early this year as the final piece of the reform, and has drawn the most attention from practicing lawyers.

Minow’s suggestions for the school’s pedagogical future echo emerging global trends. The financial crisis, she observed, accentuated the importance of establishing the notion that lawyers were independent actors with their own set of professional standards that operate independent of their interest in representing clients, as well as a need to develop long term analytical thinking about institutional design. Other trends, including new psychological evidence about how older students learn, the influence of new technology, and questions about financing education and driving down the high cost of tuition should also be taken into account.

The experiences of other schools should continue to be taken into account, Minow said, noting the recently founded University of California, Irvine law school’s central focus on problem solving as one example. Harvard Business School could serve as a model for educational financing; it does not depend on tuition as its primary source of income, she said, but on executive education and publishing. And the tension between public and private purposes that persisted throughout the law school’s history might be addressed by moving decisively to plug the gap in public interest law work by using student clinical talent in a way similar to journalism schools’ deployment of students to cover local issues.

“How can law school feel more like a lab?” Minow asked, pushing further the possibilities of comparative methodology.

She returned to the notion that major transformations made continuing reform of the law school curriculum not just a possibility, but a necessity. Worldwide shifts resulting from the growth in biotechnology, the revolution in information technology, increasing global economic ties, and the downsides of these trends, including resource scarcity, climate change, mass population growth, and human migration, she said, generated fundamental questions, begging answers regarding “common institutions and values that can help [people] deal with [those] of different traditions”.

This was an “inflection point in world history,” she concluded. “More than any time in recent memory, lawyers need to lead in creating solutions to problems."

"Mr. Green" and the VIP concierge

New York Magazine has posted its "look inside the life" article on how super rich straight men get sexual recreation. It's written as if the story is far different from what it used to be, but I have my doubts about that. Still, it seems that boom times probably expanded the reach of this adult male fantasy world - the more money, the more men with money, etc etc.  The article is built around the story of Rachel Uchitel, who became Tiger Woods' special someone:

...Rachel Uchitel ... occupies a position of power in this strobe network of girls and money and celebrity. As VIP concierge and director of VIP hospitality at Tao in Vegas and at Dune in Southampton and at the Griffin, Marquee, Stanton Social, and Pink Elephant in Manhattan, she was the ambassador of client desire.

Her job was born out of the culture of bottle service. The concept of paying for a whole bottle of alcohol and sitting at a table originated in Europe and grew a tail in the States in the early nineties, at New York clubs Life and Chaos. But it didn’t stick until 2001, when bottle service became the new way of gaining entry into a world that had previously not been for sale. You no longer had to be an Andy Warhol descendant to party at a place like Bungalow 8; you could be Joe Banker or Joe Banker’s son with his father’s credit card. And the staffers changed, too. Cocktail waitresses evolved from out-of-work actresses into Penthouse Pet–level creatures who sparred with their co-workers for client gratuities by expanding their breadth of service. Their take-home pay skyrocketed from $300 a night to $3,000 banner shifts. With the volume of VIP clients growing and the number of tables quadrupling, the need for organization spawned the creation of the VIP host, someone who could be trusted with the biggest clients.

In Las Vegas, at the Bank, Woods’s club of choice, a host would meet him at the door and walk him to his table on the second or third floor. From his perch high above the dance floor and flanked by superstar friends like Michael Jordan, Woods could look over the balcony and say, Oh, that table of pretty girls there, bring them up. The nightclub has become a smorgasbord. All you have to do is point and ask....

The hosts are much closer to their clients than almost any other service provider in a wealthy person’s life. Money isn’t exchanged directly in most cases, so it can genuinely feel as though the host is taking care of you for no other reason than because she wants to. In return, she—or he; most hosts are actually men—is a part of the entourage, a trusted confidante....

A source in the business estimates that [Uchitel] made more than any other VIP host. “At my best,” Uchitel says, “I made $250,000 base, plus a guaranteed $250,000 from the tip pool.” Half a million a year, paid by a single club—probably Tao, though Uchitel will not confirm it. (She also says she has never been kept on retainer or paid by a client directly.) This does not include the extracurricular trips, on yachts in Saint-Tropez and to Monte Carlo...

[Uchitel] really hates the accusation that she set up sex for any of her clients. She is not a pimp or a madam, she says. “It’s not our job to get anybody laid.”

What the hosts do is more like placement. They are puzzle-doers, wielding a table chart and making sure the room looks good, depositing models beside Wall Street bankers in a Rubik’s Cube of dovetailing desire. They are also realtors, selling tables, sometimes auctioning them off to the highest bidder. At the door, a host will procure a man’s credit card and his I.D. and quote him what the minimum will be at a certain table. Table minimums are usually around $1,500 at clubs in Manhattan, but a prime spot can go for as much as $30,000. And Uchitel has seen bills of $245,000 and higher for patrons who are buying huge Methuselahs of Champagne—the equivalent of eight standard bottles in one—or, in their schnockered magnanimity, have decided to treat other tables to rounds of Cristal.

In their BlackBerrys, VIP hosts lovingly store all of their clients’ birthdays, children’s names, sports teams, preferred vodkas. (Some of them also note which types of girls their clients like: loose brunettes, intelligent blondes, C-cups, real, and so on.) These are the things that make a good host. ...

Uchitel won’t talk about Tiger Woods.... She announced a press conference in early December, as though she were going to tell all. Suddenly the press conference was canceled amid reports that Uchitel’s boldface attorney, Gloria Allred, was seen leaving Woods’s attorney’s offices. Allred’s daughter, attorney Lisa Bloom, told The Early Show, “That can only mean one thing: As we say in the law, Mr. Green has arrived.” TMZ has reported that the amount is in the neighborhood of $10 million...

Breakthrough in international human rights law for gay parents in custody fights

The Inter-American Human Rights Commission (IAHRC) has ruled that discrimination against a parent in a child custody dispute because of sexual orientation violates the American Convention on Human Rights. The Commission’s finding came in a case brought by Karen Atala, who is herself a judge (a Jueza de Garantia, or criminal court judge) in Santiago.  The Commission decision repudiates a 2004 ruling by the Supreme Court of Chile ordering that Atala’s three daughters be permanently removed from her custody. [Commission determinations are not published, but are conveyed to the appropriate national government, directing it to take action to ensure that similar future violations do not occur. An earlier decision in the case, granting jurisdiction, can be found at http://www.cidh.org/annualrep/2008eng/chile1271.04eng.htm.]

According to Paula Ettelbrick, who as ED of IGLHRC in 2004 took on coordination of U.S.-based support for Atala's case, this decision is "the only one outside of the European human rights system to analyze the rights of LGBT parents to continued custody and visitation with their children pursuant to the mandates of an international treaty." Atala spoke about the case at the Williams Institute's Global Arc of Justice Conference last year in Los Angeles.

Following are additional excerpts from Paula's analysis:

Karen Atala had been married for nine years when she and her husband decided to separate. They both agreed that it was best that their three young daughters remain with her. That is, until she met her now partner, fell in love, and invited her to share her life with her children. On January 30, 2003, within weeks after her partner moved in, the girls’ father filed a legal action claiming that the children will suffer harm if they live in a home with their lesbian mother and her partner. Thus began a seven-year legal odyssey.

Karen lost the critical first round and, as far as I know, has not lived with her children since May 2, 2003, when the Regular Judge of the Juvenile Court of Villarica issued a provisional order removing custody of the girls from the home of their mother and placing them with their father. There can be little doubt that this was a purely homophobic move, given that no hearing had been held and no evidence collected....

After the Juvenile Court’s provisional order, the case then was transferred to another judge, the Acting Judge of the Court of the First Instance in Villarica, who held a full hearing, taking evidence from experts and people close to Karen and her family. On October 29, 2003, that judge issued an opinion rejecting the father’s custody claim, stating that:

“The sexual orientation of the mother does not constitute an impediment to develop a responsible motherhood…The respondent suffers from no psychiatric pathology that would make her unfit to perform a mother’s role …no concrete evidence has been shown that the presence of the mother’s partner in the home is harmful to the well-being of the girls … having analyzed the evidence presented, there is no reason to presume the existence of bad or dangerous examples for the morality of the girls…the court concludes that the girls have not suffered any discrimination to date and what the witnesses for and relatives of the plaintiff express is a fear of possible discrimination in the future. With respect to this point it should be mentioned that this court must base its decision on definite and proven facts in the case and not on mere assumptions or fears.”

...[T]he father appealed to the Court of Appeal in Temuco...The Court of Appeal agreed that there was no proof that the children would suffer harm from living with their mother and her partner. On March 30, 2004, the Court of Appeal upheld the lower court’s judgment.

... [The father then appealed to the Supreme Court of Chile.] The Supreme Court issued an order preventing the girls from being moved to their mother until it could fully review the case and issue a final decision.

On May 31, 2004, three of the five justices on the Supreme Court overturned the decisions of both the trial court and the court of appeals. They characterized the daughters as being in a “situation of risk” that placed them in a “vulnerable position in their social environment, since clearly their unique family environment differs significantly from that of their school companions and acquaintances in the neighborhood where they live, exposing them to ostracism and discrimination, which would also affect their personal development.”

Rejecting the evidence as fully examined by the trial court and the court of appeal, the majority instead decided to venture into the land of speculation:

“Apart from the effects that that cohabitation could have on the well being and psychological and emotional development of the daughters, given their ages, the potential confusion over sexual roles that could be caused in them by the absence from the home of a male father and his replacement by another person of the female gender poses a risk to the integral development of the children from which they must be protected.”

The two dissenting judges of the Supreme Court determined, by contrast, that “the opinions contained in the record, both from psychologists and from social workers, infer that the mother’s homosexuality does not harm the rights of the girls.”

Texas appeals court hears argument in gay divorce case

The Texas state Attorney General challenged the decision by a Dallas trial court judge to grant a divorce to two men (J.B. and H.B.) who married in Massachusetts before moving to Dallas. Today the case reached the Fifth District Court of Appeals.

By John Wright, from the Dallas Voice:

...[The lawyer for the state argued] that the couple shouldn’t be allowed to divorce in Texas because their marriage isn’t considered valid under state law...

James Scheske, one of J.B.’s attorneys, countered that regardless of Texas law, the couple’s marriage is valid in the state where it was entered. To obtain a divorce in Massachusetts, the couple would have to re-establish residency there for at least six months. “My client’s very private matter has become a public spectacle,” Scheske told the justices. “He’s not seeking to enter into a same-sex marriage. He’s seeking a divorce from a valid marriage that was entered into in another state.”...

The attorney general’s office granted five of its 20 minutes to a representative from the ... Liberty Institute. Hiram Sasser, director of litigation for the Liberty Institute, ...noted that 76 percent of voters approved the amendment [banning same-sex marriage], and he said the issue of same-sex divorce shouldn’t be decided by judges. Under the federal Defense of Marriage Act, [he argued], states can choose not to recognize same-sex marriages from elsewhere. Sasser characterized gay divorce as an attack on same-sex marriage, but Scheske noted that constitutional issues didn’t arise in the case until the AG’s office became involved.

J.B. filed for a divorce in January 2009, and a day later ... Attorney General Greg Abbott challenged the petition. Judge Tena Callahan ...  ruled in October of last year that she had jurisdiction to hear the case, saying Texas’ bans on same-sex marriage violate the equal protection clause of the 14th amendment. At the request of J.B.’s attorneys, Callahan later amended her ruling to say that the case doesn’t implicate Texas’ marriage bans, but instead involves the question of whether same-sex divorces can be granted under the state’s Family Code.

“Granting a divorce to a same-sex couple promotes Texas policy because it ends a same-sex marriage,” Scheske told the appeals court on Wednesday. “We think it’s axiomatic that granting a divorce means one less same-sex marriage in Texas,” he said later at the press conference. “We’re not challenging the same-sex marriage ban. That’s not what we’re doing, because my client is already in a same-sex marriage. My client just wants a divorce.”...

Also attending Wednesday’s hearing was Angelique Naylor, a lesbian who was recently granted a divorce from her wife in Austin. Abbott’s office has also filed a notice of its intent to appeal the district judge’s decision in Naylor’s case.

Backstory on the messy Supreme Court argument in CLS v. Martinez

Following the jump, I've posted Lyle Denniston's report from SCOTUSBlog (HT Stuart Biegel) on the oral argument this morning in Christian Legal Society v. Martinez. (Or read the full transcript.) The short version is that several Justices were dismayed by CLS disputing a key fact to which it had stipulated below: that Hastings Law School applied its "all comers" policy evenhandedly. The policy requires that, to be recognized, student organizations must allow all students to fully participate in their activities. If the policy was not applied across the board to all student organizations, then CLS has a strong claim of discrimination.  If it was, then CLS is asking for, dare I say it, special rights. (More background here)

Lyle's post suggests that there was a bit of snarkiness among the Justices, along the lines of - why should we be spending our time on this case if the factual record isn't even clear. And behind that was probably a fair amount of I-told-you-so from Justices who did not want to grant cert. Four Justices must vote to grant cert before the Court will take a case, and the timing of what happened here suggests that there was a protracted tug of war over that question.

The CLS cert petition was filed last summer. Rulings on petitions that come in over the summer are announced on the first Monday in October, or very soon thereafter.  Those of us who had been watching the case expected a cert decision then, but it didn't come.  Then week after week went by without a ruling on whether the Court would grant cert. At least one Justice took the unusual step of asking that the full record be sent from the Ninth Circuit, which typically occurs only after the Court has granted cert. Finally on December 7, a presumably wavering fourth Justice voted to bring the case to the Court.

So my hunch is that when Justice Breyer wondered out loud "what do I do with this case," his underlying complaint was as much with four of the brethren as with counsel. The Court may still rule on the merits, but it may also dismiss cert as improvidently granted.

Full description of the argument after the jump -->

Six reasons why I'm not blogging about who will replace Justice Stevens

I don't know who the President will nominate.

I'm tired of reading completely predictable speculations by other people who also don't know who the President will nominate.

I don't know the sexual orientation of any of the most frequently mentioned possibilities.

I think it ought to be Kathleen Sullivan but I don't think it will be.

If the three front runners are indeed Garland, Kagan and Wood, I doubt that it will make much difference to future legal doctrine which one is selected.

I am still completely floored by the possibility that anyone cares whether there is a Protestant on the Court.

Oral argument previews

Ruth Robson has posted videos of two panel discussions that include attorneys for the parties in Christian Legal Society v. Martinez, which is being argued tomorrow.

Women who take husband's name seen as more caring, less intelligent, and worth half a million dollars less

A new study by Dutch researchers from Tilburg Institute for Behavioral Economics Research, Tilburg University, found that

A woman who took her partner's name or a hyphenated name was judged as more caring, more dependent, less intelligent, more emotional, less competent, and less ambitious in comparison with a woman who kept her own name. A woman with her own name, on the other hand, was judged as less caring, more independent, more ambitious, more intelligent, and more competent.

Turns out these perceptions have consequences: "[A] job applicant who took her partner's name, in comparison with one with her own name, was less likely to be hired for a job, and her monthly salary was estimated at [$1,162.29] lower (calculated to a working life, [$488,161.37])."

I'd really like to see if the same results would be found in the U.S. from the same study.  We do know that American employers respond to signals about race: a study by University of Chicago researchers published in 2004 found that when fictional resumes were sent in response to employment want ads in Boston and Chicago, "Emily Walsh" and "Greg Baker" got 50 per cent more callbacks than "Lakisha Washington" and "Jamal Jones."

Will the Christian Legal Society case produce one of the last Stevens opinions?

The Supreme Court will hear arguments Monday morning in Christian Legal Society v. Martinez. CLS is challenging the constitutionality of a Hastings Law School policy that requires student organizations to allow all students to participate as voting members and, if elected, to serve as officers, before the group can be formally recognized and get the benefits that flow from recognition. The CLS strategy is to rely heavily on Boy Scouts v. Dale, in which the Court held that the Scouts could not be forced to comply with a state anti-discrimination law that would have required allowing gay men to serve as scoutmasters. There was an impassioned dissent in that case, joined by four Justices. Its author was Justice Stevens, who has just announced his retirement from the Court.

Much of the Stevens dissent cast doubt on whether the Scouts had genuinely adopted a policy condemning homosexual conduct or whether their purported moral beliefs were invented as a rationale to justify exclusion of gays. By contrast, the CLS policy condemning any sexual conduct outside of heterosexual marriage is quite clear. So I don't assume that it's a sure thing that Stevens will rule against CLS in this case, although it's a pretty good bet. 

For example, the Stevens opinion in Dale (530 U.S. 640, 695) argued that

[I]f merely joining a group did constitute symbolic speech; and such speech were attributable to the group being joined; and that group has the right to exclude that speech (and hence, the right to exclude that person from joining), then the right of free speech effectively becomes a limitless right to exclude for every organization, whether or not it engages in any expressive activities. That cannot be, and never has been, the law.

If Justice Stevens is in the majority in the CLS case and Chief Justice Roberts is not, then Stevens (as the senior Justice in the majority) will designate who writes the opinion of the Court. In that situation, my bet is that he will write this one himself. If the votes don't fall out that way, I wouldn't be surprised to see a separate Stevens opinion in dissent, echoing the points he made in Dale.

 

Appeals aplenty in the Perry case

(revised April 15)

The Ninth Circuit has weighed in on the latest discovery issue in Perry v. Schwarzenegger, rejecting the attempt by the ACLU and Equality California to invalidate an order by Judge Walker directing them to turn over internal documents of the No on 8 campaign. The Ninth Circuit's decision declined to issue a writ of mandamus against Judge Walker, and held that the only mechanism by which the appellate court could have jurisdiction of this question now would be if the two organizations refused to turn over the documents and were held in contempt.  This odd posture is an outgrowth of the principle that discovery orders are not immediately appealable, but citations for contempt are.

It's unclear what the ACLU and Equality CA will do next.  They could seek further review, but they may also be satisfied with the court's clarifying statement that communications about the formulation of campaign strategy and messages should be protected, regardless of whether the exchanges are internal within one organization or between persons in different groups. That was the primary issue with which the ACLU and EQCA were concerned.

There is already one discovery-related cert petition pending in the Supreme Court, 2010 WL 1436438 [No. 09-1210]. It was filed by defenders of Prop 8, who are challenging the order by Judge Walker which directed them to turn over campaign materials. That order was also upheld by the Ninth Circuit, 591 F.3d 1147 (finding mandamus jurisdiction based on the importance and novelty of the question), in an opinion that recognized a privilege for "private, internal campaign communications concerning the formulation of campaign strategy and messages," but limited it to fewer people than the defendants wanted.

Similarly to the Prop 8 opponents, the Prop 8 defenders assert that their First Amendment privacy/associational rights are violated by having to comply with the discovery order. They stated the question presented to the Supreme Court as follows:

In a post-election challenge to a law enacted by ballot initiative, does the First Amendment protect against compelled disclosure, through discovery, of nonpublic campaign speech and associational activities without regard to the speaker's organizational affiliation or role in the campaign?

You can find more excerpts from the cert petition after the jump.  Interestingly, the petition suggests that the Court wait to decide whether to grant cert until it decides Doe v. Reed, which concerns whether privacy rights are implicated by the release of the names of those who signed petitions to put an anti-gay referendum issue on the ballot last November. The Prop 8 defenders have nothing to lose by delay; it's a weak cert petition that the Court will probably deny. Linking it to Doe v. Reed also implicitly communicates to the Court that in both cases, arguments are being built on this new trope of individuals fearing intimidation by lgbt rights advocates.

Meanwhile, Judge Walker has set this Friday, April 16, as the deadline for all parties to show cause why the evidentiary record should not be closed. He clearly wants to move forward with final arguments and a decision, which have been stalled while these discovery issues were being litigated; Prop 8 defenders may ask him to hold the record open until the Supreme Court rules on their cert petition.