hunter of justice

Who's intolerant? McConnell weighs in for CLS

Following are comments by Stanford Professor Michael McConnell in response to Mike Dorf (posted yesterday) regarding the Christian Legal Society case. McConnell, who wrote the Supreme Court brief for the Boy Scouts in the Dale case, will also represent the Christian Legal Society in the Supreme Court.

I strongly disagree with my friend Michael Dorf that Christian Legal Society v. Martinez raises the question of whether we should “tolerate the intolerant.”  The question presented is whether a public university may deny a small religious student group equal access to a forum for speech on the ground that it limits its leaders and voting members to those who adhere to its statement of religious belief.

There is nothing remotely “intolerant” about a religious group confining its leadership or spokesmen to adherents to its faith.  Must synagogues hire non-Jewish rabbis?  Must a Baptist Bible study group have a Catholic chair?  The reason the religious group confines its leadership positions to adherents is not some distaste or intolerance for others, but the desire to meet and worship with students sharing a common belief, and to communicate those views to a wider audience.  Others are free to attend the  CLS meetings and activities, but not to seize control of their podium. Even nonreligious groups at Hastings – the Democrats, the pro-life group, the trial lawyers group, and ironically even the respondent student gay rights group in Martinez, limit their leadership to students who agree with their core beliefs.  There is nothing wrong or “intolerant” about this.  It makes sense, especially for small or unpopular groups who might otherwise be taken over by students who do not like their message.  But only when it is the religious group has the Hastings administration cried foul.

And it is not “intolerant” for a Christian group to espouse a sexual morality based on marriage between a man and a woman.  Everyone this side of the Marquis de Sade draws the line somewhere and there is no need for everyone in this diverse and pluralistic land to draw our lines in the same place.  These students disapprove of “unrepentant” sex outside of marriage (whether gay or heterosexual).  Others do not.  But it is not accurate, or helpful, to brand those with whom we disagree as “intolerant.” 

It might be intolerant if the religious students sought to deny those who disagree with them the benefits of civil society – if they tried to shut them up or shut them out.  But it is not intolerant for people with a particular moral standard to form a group where they can provide mutual support and encouragement among themselves, or to communicate their opinions to a wider audience, along with everyone else.       

Which side in this case is being “intolerant”?  Those who want to meet and speak just like every other student organization, or those who have kicked them out?

After the jump, Dorf replies to McConnell -->

Debates begin on Christian Legal Society case

Now that the Supreme Court has granted cert in Christian Legal Society v. Martinez (background here), the conflict of rights at the heart of the case is beginning to draw commentators.  First out of the box is Mike Dorf (Cornell Law). He began blogging about the case with this summary:

The Supreme Court just granted cert in Christian Legal Society v. Martinez.  At the broadest level, the case presents a recurring and fundamentally unsolvable dilemma of liberalism: Must liberals tolerate even the intolerant?  In more mundane terms, the case poses the question of whether a public institution--here UC Hastings Law School--can apply its non-discrimination policy to deny official recognition (and thus eligibility for funding) to the Christian Legal Society (CLS) on the ground that the latter interprets its charter to forbid membership by any person who advocates or "unrepentantly engages in" "a sexually immoral lifestyle," an exclusion that would bar openly (and "urepentantly") gay law students from membership in the CLS.

Then in an essay posted at Writ, Mike analyzes two lines of precedent and argues that the best outcome would be a compromise.  Excerpted from Writ:

...[I]n two ... recent cases, Hurley v. Irish-American Gay Group of Boston and Boy Scouts of America v. Dale, the Court invalidated efforts by Massachusetts and New Jersey, respectively, to bar discrimination on the basis of sexual orientation by parade organizers and the Boy Scouts, again respectively....

...[T]he key to these rulings is that, in both Hurley and Dale, the Supreme Court thought that the private group's message would be undermined by the forced inclusion of persons whose very presence was inconsistent with that message. Significantly, Hurley was a unanimous decision:The liberals, no less than the conservatives, thought that the organizers of a private parade, who were engaging in an inherently expressive activity, should be able to decide whether the inclusion of openly gay marchers would undermine the message of the parade.

Dale, to be sure, was not unanimous. But the key point of the dissent simply underscores the distinction at issue: The dissenters thought that the Boy Scouts of America did not have a clearly-articulated message that would be undermined by having an openly gay troop leader. ...

In other words, it seems that the Court, at the time of these decisions, generally agreed that if inclusion would directly undermine a clear, specific message sent by an expressive organization, then forcing inclusion would presumptively violate the First Amendment right of association.

CLS argues that it is ... like the Boy Scouts and the parade organizers in the Hurley case ... [But} there is one very important difference between Dale and the CLS case: In Dale..., the state imposed a blanket rule: The Boy Scouts were told by the State of New Jersey that they simply had to admit gay members and troop leaders. By contrast, Hastings is not exercising that kind of regulatory authority over CLS. Hastings does nothing to stop individual law students enrolled at Hastings from getting together for meetings. All that Hastings does is deny official recognition to such groups of law students, if they are not open to all would-be members.

Accordingly, Hastings argues that this case is nothing like Hurley and Dale. The law school is not telling private organizations to admit anyone; it is only telling private organizations that want official recognition--and the eligibility for funding that comes with it--that they need to accept all interested students as members. It is well-established constitutional law that the government cannot suppress the speech of groups devoted to non-violent advocacy of racism, sexism or homophobia. But, Hastings says, it does not have to subsidize the activities of organizations that, in their admissions policies, discriminate on the basis of race, sex, or sexual orientation. It will tolerate such discriminatory speech, Hastings says, but it is not obligated to pay the bill for it.

In response, however, CLS can point to another line of cases involving so-called "public fora." These cases say that where the government opens up public property for speech, it cannot discriminate among speakers.

The Supreme Court case most closely on point is the 1995 decision in Rosenberger v. University of Virginia. There, the Court struck down a University of Virginia ("UVA") policy under which the university funded most student publications but not those that were religious in nature. Having created a forum for speech (as the Court called it, "more in a metaphysical than a spatial or geographic sense"), UVA was not permitted to discriminate among the viewpoints of those entitled to speak in that forum....

CLS argues that its case is just like Rosenberger, in that it is being denied access to the benefits of official recognition, including funding, based on the religious viewpoint it espouses. But there is at least one important distinction: Unlike the restrictions in Rosenberger ..., the trigger for the Hastings policy has nothing to do with the expression of a religious viewpoint, or with expression at all. Hastings would recognize CLS--even with a message that can reasonably be said to be homophobic--if only CLS would accept all students as members.

Who has the better of that argument? As I read the precedents, Hastings should prevail. However, there is enough wiggle room in the doctrine for the Justices to rule for CLS. For example, the Court could say that regulation of the membership of an expressive association is inherently a regulation of the association's expression, and that where the regulation takes the form of a requirement of inclusion, it is inherently hostile to a message that says certain forms of behavior are sufficiently immoral to warrant exclusion.

After the jump, the argument for a compromise outcome -->

Tomorrow: Michael McConnell - formerly a judge on the Tenth Circuit Court of Appeals, now a professor at Stanford and one of the nation's leading conservative legal scholars - responds to Dorf, who then replies.

What is the government's interest in preventing gay marriage? Here's your answer -

Many people who don't actually care a great deal one way or the other about gay marriage find it difficult to imagine why they should care. After all, how does allowing same-sex couples to marry affect your typical heterosexual married couple? This is the single hardest question for the opponents of marriage equality to answer and the one on which Jon Stewart etc can most reliably trigger laughter in ridiculing their priggishness.

Well, thank goodness for lawyers. In the pretrial brief filed in Perry v. Schwarzenegger, the defendants had to  identify what they believed to be the legitimate state interests behind Prop 8, the California constitutional amendment that prohibited same-sex marriage. And being the excellent lawyers that they are, they came up with not one, not two, but 47.  Yes, 47. Three more and the whole thing could join AARP.  But I digress.

The first five of the 47 are really the same thing - enforcing "traditional" marriage - although the idea is ingeniously morphed into five variations: "preserving the traditional institution..," "preserving the traditional meaning...," "preserving the traditional purposes..., "preserving the traditional meaning ...as it has been defined in English," [think how many more there could be: in Spanish, in Mandarin, in Farsi,...] and "expressing support for the traditional institution of marriage." Just when did "traditional" get to be a magic word, some kind of unassailable talisman? Oh right, Justice Scalia.

You have to assume that the first five represented their best shot. So who should get credit for using so many words to say the same thing? I see a litigation team meeting, in the conference room of Chuck Cooper's firm, with multiple associates around a table tweaking the language. I see billable hours.

And what of the other 42 justifications - where are the zingers to deploy against the Jon Stewarts of the world? Or even to just answer the "whatever dude" masses of potential turncoat heterosexuals?

Well, I can't do justice to all 42 of them.  So here are my 10 favorites, in Letterman order:

10. Preserving "the prerogative and responsibility of parents to provide for the ethical and moral development and education of their own children" (against those child-snatching gay couples);

9. To avoid "the further, and in some respects the full, de-institutionalization of marriage" (silly me, I thought people wanted to be de-institutionalized);

8. To avoid "publicly replacing the idea that parenting is largely gendered with the idea that parenting is largely unisex" (which is to say, cliches about mom- and dad-ism become harder in same-sex couples);

7. To avoid replacing "the norm of the natural parent with the norm of the legal parent" (have you ever heard of adoption?);

6. To avoid "enshrining the principle that sexual orientation, as opposed to sexual embodiment, is a valid determinant of marriage's structure and meaning" (what the hell is "sexual embodiment"?);

5. To avoid "ending or diluting the public socialization of heterosexual young people into a marriage culture" (sounds like a Moonie wedding);

4. To avoid requiring "that all relevant branches and agencies of government formally replace the idea that marriage centers on opposite-sex bonding and male-female procreation with the idea that marriage is a private relationship between consenting adults" (not that! not consenting adults!);

3. To avoid increasing "the likelihood that bisexual orientation could become a legitimate grounding for a legal entitlement to group marriage" (I knew there was a reason to be bisexual);

2. To avoid contributing to "the belief that marriage in our society is now politicized" (not like in the good old days when women were serfs, for example); and .....

1. To serve the interest of "using different names for different things." (Res ipsa loquitur baby)

Pretty impressive, huh?  As I said, lots of billable hours.

Checking in on Ted and Dave's excellent adventure

A slew of pretrial memoranda have been filed in the last couple of days in Perry v. Schwarzenegger, the mega case challenging the constitutionality of Prop 8 in federal court in San Francisco.  A side issue involving whether the defendants will have to turn over to plaintiffs a series of e/mails and other communications related to the campaign strategy behind passing Prop 8 is pending on appeal before the Ninth Circuit. Judge Walker ordered that the materials be turned over, 2009 WL 3234131 and 2009 WL 3823174, but the panel of Ninth Circuit judges that heard the appeal indicated during oral argument that it was likely to rule that forcing disclosure would violate the First Amendment. Other than that, however, the case seems to be on track for its trial date of January 11. There is a pretrial hearing next Wednesday, the 16th, at which final decisions about the scope and length of the trial may be made.

And what a trial it is going to be -

In comparing the plaintiffs' witness list and the defendants' witness list, it is clear that defendants are sticking to their primary theory of the case, which is that plaintiffs' claim is invalid as a matter of law.  Defendants filed a summary judgment motion on those grounds, which Judge Walker denied.  But it appears from their list of proposed witnesses - which includes several of the same individuals expected to testify on behalf of plaintiffs - that the defendants will seek to score points by aggressive cross-examination of plaintiffs' witnesses (which is why the same witnesses are also on the defendants' list), and that they apparently plan to introduce few experts of their own.  Perhaps because few scholars support their position...

Persons on both plaintiffs' and defendants' lists include Lee Badgett, economics professor at the University of Massachusetts and research director at the Williams Institute at UCLA Law School; George Chauncey, a professor at Yale and leading gay historian;  Nancy Cott, another Yale history professor who has written extensively on the relationship between marriage and citizenship; Greg Herek, a psychology professor at Cal-Davis who has been studying sexual orientation for many years; Michael Lamb,a psychology professor at Cambridge who is an expert on parenting; Ilan Meyer, a professor at the Columbia School of Public Health, who will testify about the psychological stress associated with minority status; Anne Peplau, a UCLA psychology professor who will testify about the effects on individuals of equal marital status; and Gregory Segura, a Stanford political science professor who will testify about the political power or lack thereof of the lgbt minority in the United States.  

I gave a talk today at the Department of Justice, and one of the attorneys there suggested that the Perry trial might rival the Scopes trial (on the theory of evolution) as a critical turning point in public understanding.  I hope he's right, with one caveat: the good guys lost the Scopes case, Clarence Darrow's efforts notwithstanding. Let's hope this one turns out differently.

Supreme Court grants cert in Christian Legal Society case

This morning, the Supreme Court agreed to hear a case in which the Christian Legal Society argues that it has a First Amendment right to recognition as a student organization, despite its refusal to allow lgbt students to become members. Both the trial court and the Ninth Circuit Court of Appeals had ruled that Hastings College of Law could enforce its anti-discrimination policy requiring that all student organizations be open to all students. CLS contends that the school's policy violates its expressive, association, and free exercise rights by not permitting it to require that all voting members and officers "share its core religious beliefs."

With this grant of certiorari, the conflict between religious liberty and lgbt equality will take center stage in the development of lgbt rights law. The case is likely to be argued in March or April.  The Court issues all opinions in pending cases before the term ends at the end of June.  Because this argument will be heard late in the term, the decision is likely to be announced relatively late as well, probably during June.

The Court had been delaying its decision on granting review, and took the highly unusual step of asking for the full record early last month. One imagines that at least one Justice wanted to see the record before voting to take the case; the votes of four Justices are required for the Court to grant cert.

For copies of the cert petition, opp cert and reply brief, plus the parties' briefs below, see CLS web page. Excerpts from the trial court decision, which was summarily affirmed by the Court of Appeals, after the jump -->

Will DoMA case change the constitutional standard for sex/o discrimination?

    The issues are now joined in Gill v. OPM, the GLAD case challenging the constitutionality of DoMA.  Unlike the Perry case in California, the decision in Gill will have no effect on state marriage laws.  The plaintiffs are same-sex couples or surviving spouses in Massachusetts, and are arguing that the denial of federal benefits due them is unconstitutional.

    The most important legal issue in the case is the standard of review, the question of how stringently a court will examine the reasonableness of a law that distinguishes between persons based on, in this case, sexual orientation. There is no federal court decision on the books that adopts a heightened level of scrutiny in an Equal Protection Clause analysis of sex/o classifications.  The plaintiffs are also arguing that the denial of federal benefits also infringes their due process/liberty-based right to maintain family relationships.

    In its brief filed two months ago, the Obama Justice Department made its third attempt to defend DoMA without setting off a firestorm of protest from lgbt groups.  The most significant aspects of the latest DoJ brief are what isn't there: the pieces of argument made in an earlier brief filed in a California case. Noxious arguments that discouraging same-sex marriage promoted the interests of children (which DoJ has now specifically disavowed) and that DoMA is justified by the government's interest in preserving scarce resources (ie benefits) and in not using tax funds raised in states that don't recognize same-sex marriages for same-sex couple benefits -- these three assertions have fallen by the wayside.

    What DoJ was not willing to do, however, was to change its argument about the correct standard of review. DoJ asserts that the traditional, highly deferential form of rational basis review applies to sex/o classifications. Under this standard, the challenged law is entitled to a strong presumption of constitutionality; there can be a very loose, inexact fit between the purpose of the law and the means used to achieve it; the court may hypothesize possible purposes that Congress may have had; and the law will be upheld if any conceivable set of facts can provide a rational basis for it.

    What everyone knows but DoJ does not acknowledge is that the Supreme Court did not use this traditional approach to rational basis review in either Romer or Lawrence.  If it had, it would not have reached the results that it did. Unfortunately, the Court also did not identify which standard it was using, leaving lower courts open to essentially limiting the impact of those two decisions to only cases with close-to-identical facts, which will arise only rarely.

    The plaintiffs' brief in Gill argues for heightened scrutiny or, alternatively, that DoMA fails to satisfy even the most deferential form of rational basis review. I don't know what the district court will do, but I think there is an excellent chance that plaintiffs will win before the Court of Appeals for the 1st Circuit, possibly using the standard proposed by Justice O'Connor in her concurrence in Lawrence, which is basically heightened rational basis when there are signs that the challenged law was based on animus toward a group.  DoMA certainly fits the bill.

    Whoever wins on appeal, the other side will seek review in the Supreme Court. Timing is completely impossible to predict, but it seems likely that this case will reach the Supreme Court around 2011 or 2012. And of course there is no way to know exactly who will be on the Court at that time.  But it sure looks possible that this case, too, will effectively be decided by Justice Kennedy.

Why the Stupak amendment is unconstitutional

By Cardozo Law Professor Marci Hamilton, published in Writ:

...Although many have attacked the Amendment as a policy matter, the constitutional arguments against it have been underplayed. That is a shame, because under any reasonable reading of the Constitution, the Stupak Amendment is unconstitutional: Indeed, it violates three different constitutional principles.

How the Stupak Amendment Violates The Establishment Clause

First, the Amendment violates the Constitution's separation of church and state. The anti-abortion movement is plainly religious in motivation, and its lobbyists and spokespersons represent religious groups, as is illustrated by the fact that the most visible lobbyists in the Stupak Amendment's favor have been the Catholic Bishops. This is a brazen and frank attempt to impose a minority's religious worldview on the entirety of American healthcare. (A majority of Americans have favored a woman's right to choose for many years.) There is no secular purpose for the extension of the Hyde Amendment to all private health insurance plans as well. Accordingly, whatever secular purpose might be devised by those trying to defend the Stupak Amendment in court would be a sham purpose, intended to cover the frankly religious pandering the Amendment represents.

One of the clearest Establishment Clause principles is that the government may not impose a certain group's religious beliefs on those with different beliefs. The principle was articulated by the framer of the First Amendment, James Madison, in his important work "Memorial and Remonstrance," and it has been a mainstay of Establishment Clause doctrine. The Stupak Amendment violates this principle by imposing on the entire country a religious worldview that millions of Americans do not share. Moreover, this imposition of religious belief in the private sphere is in the context of healthcare, which every American needs.

How the Stupak Amendment Violates The Equal Protection Clause

The Stupak Amendment also discriminates on the basis of gender. Only women have to deal with the difficult question of abortion. Conspicuously missing are parallel exemptions barring funding for Viagra, or for, say, prostate surgery treatments, which can leave a man sterile and therefore operate as a birth control measure.

In addition, the exemption (the purpose of which is, again, obviously a religious one) does not serve any medical end, when serving medical ends is presumably the overall and most important purpose of the Health Care Reform Act. If health is truly to be served, then refusing to permit women to obtain even private health insurance that covers unplanned pregnancies, or pregnancies involving fetuses with fatal abnormalities, is not just discriminatory, but outright irrational.

How the Stupak Amendment Violates Substantive Due Process and Privacy Rights

Finally, the Stupak Amendment attempts to curtail -- across the board – the privacy rights that Roe v. Wade and its progeny secured for women. While other restrictions on abortion (including the Hyde Amendment) have been upheld by the Supreme Court, this is a far more expansive and repressive move against women, and it surely institutes an undue burden on a woman's right to obtain an abortion in consultation with her doctor. Although it is not clear precisely where the boundary line lies, it is very clear that this move transgresses any reasonable interpretation of the line the Court's cases draw.

The Stupak Amendment is also a harbinger of future constitutional violations, for it erects a slippery slope of top-down control of the spectrum of healthcare options. Abortion is surely just the first foray of the religious lobbyists' battle to take away Americans' right to choose among the full panoply of healthcare options. Attempts to control and halt the funding of both emergency and ordinary contraception surely are not far behind, for such attempts are part of the very same politico-religious platform that includes the Stupak Amendment. There is no more obvious violation of Griswold v. Connecticut – which established that laws prohibiting contraception are unconstitutional under the Court's right-of-privacy doctrine -- than for the federal government to reduce the affordability and, therefore, the availability of contraceptives for all Americans.

Conservative Senators who are pandering to religious interests (and/or simply imposing their own religious beliefs on the country) have been quoted recently as saying that they will not permit the Health Care Reform Act to backtrack on abortion issues. But backtracking is a misleading description of what the religious lobbyists are seeking. The truth, instead, is that the Stupak Amendment is a far reach beyond the already repressive Hyde Amendment, and that the advent of the federalization of healthcare is giving anti-abortion religious believers a one-stop lobbying opportunity on an issue that they were previously having to address on a state-by-state basis.

In sum, if the millions of Americans who believe in choice do not act quickly and in a concerted fashion, then we will have a historic rollback of women's liberties. That would be a true disaster, for not only is the Stupak Amendment repressive and regressive, but it also violates constitutional rights.

Will Supreme Court grant cert in Christian Legal Society case?

A cert petition that has been lingering before the Supreme Court since last summer raises the question of whether a Christian student group's constitutional rights were violated when a public law school refused to grant it official status because the group excluded gay and non-Christian students in violation of the school's non-discrimination policy. Clearly, someone on the Court is interested in granting cert: the case has been on the Court's conference calendar five times (counting today), but still no decision on cert has been announced. This week, the clerk of the Court sent a letter to the Ninth Circuit clerk's office requesting that the complete record in the case be transferred to the Supreme Court, a step that is normally taken only after cert is granted.

If the Court does add Christian Legal Society v. Martinez (No. 08-1371) to its docket, the debate over the conflict between religious liberty and anti-discrimination law will jump to the top of the list of important constitutional law issues related to sexual orientation. The decision could set the terms for what is increasingly the central philosophical question in lgbt rights law: the extent to which religious entities (or even individuals) should be exempt from civil rights protections for sexual orientation. (Additional background here)

If any decision is reached today on granting cert, it will be announced on Monday. Given that there is little chance that the Justices have fully reviewed the lower court documents yet, however, the case may well be rescheduled for its sixth time on the conference calendar.  The Court's next conference is November 24.

Excerpts from the lower court opinion after the jump -->

BDSM case goes to Supreme Court

by guest blogger Harper Jean Tobin

The US Supreme Court recently agreed to hear a case involving the seemingly technical but highly important question of when a criminal conviction can be overturned based on the possibility that it was based on conduct that occurred before any law made it illegal. While the case is already generating headlines, you are not likely to hear a great deal about the Ex Post Facto Clause issue at the heart of the appeal. Instead, media coverage has and presumably will continue to focus on the involvement of both the defendant and the complainant in the case in the BDSM subculture.

The prosecution and conviction in United States v. Marcus shocked many people, not least members of the BDSM (bondage/discipline, domination/submission, and sadomasochism) community, who alternately condemned the defendant for violating the moral standards of the community and worried that they too could be at risk. Glenn Marcus and the woman identified in court records only as Jodi met in 1998 and began what the prosecution conceded was initially a consensual “Master/slave” relationship. A year later, however (the State contended), the relationship became non-consensual because of Marcus’s cruelty and threats, and Jodi was blackmailed into remaining in the relationship by his threats of showing explicit photos of their activities to Jodi’s family. Marcus’s defense vigorously contested the charges, which turned on Jodi’s testimony that she withdrew her consent and only continued the relationship out of fear. Marcus was convicted of forced labor and sex trafficking under the Trafficking Victims Protection Act of 2000, based on Marcus’s sexual and BDSM activities with Jodi and on forcing Jodi to work on maintaining his BDSM website.

The Second Circuit overturned Marcus’s convictions (538 F.3d 97), saying that because the government built its case largely on events that occurred before the TVPA’s enactment, and the trial judge failed to instruct the jury on the matter, it was at least possible that the verdict was based conduct that was not a federal crime when it occurred. (Notably, then-Judge Sonia Sotomayor wrote a concurring opinion suggesting that the relevant circuit precedents were at odds with Supreme Court precedent. Sotomayor has now recused herself from the case.) Accordingly, Marcus was entitled to a new trial, focusing exclusively on whether Marcus coerced and abused Jodi in late 2000 and 2001. The Supreme Court will now decide whether a conviction can be reversed based only on a possibility, as opposed to a likelihood, that it was based on pre-enactment conduct, and thus whether the new trial will proceed.  Although it is the Court’s job to focus on the specific legal questions presented to it, some members of the Court will likely be unable to resist delving into the morality and legality of BDSM. The legal arguments and media coverage of the case, therefore, should be digested with the following in mind:

Marcus’s conviction turned on the question of consent. Marcus’s defense has contended throughout that he has been imprisoned for consensual BDSM activities, and that Jodi, on whose testimony the whole case hinged, brought a false case to prosecutors, long after the fact, because of a dispute over pictures of her on Marcus’s website. By contrast, the prosecution contended that this was a case about a relationship that began consensually but turned into something different and criminal. At the urging of the defense, the court’s jury instructions specified that the terms “physical restraint,” “threats of serious harm,” “force” and “coercion” in the federal statute must be interpreted so as to exclude consensual BDSM conduct. 487 F.Supp.2d 289 (E.D.N.Y. 2007). While the very idea of consensual BDSM, and the distinction between a consensual “Master/slave” relationship and actual captivity and abuse, may have been difficult for jurors to comprehend, the jury convicted Marcus in light of these instructions and the trial court found the evidence sufficient to uphold the verdict in light of this interpretation of the law. Marcus has not challenged the sufficiency of the evidence on appeal, and accordingly the factual question of consent is now closed, as far as the courts are concerned.

The most sensationalized facts of the case actually involved consensual activity. Jury instructions notwithstanding, the prosecution and the press certainly capitalized on every available detail to paint a picture of a depraved abuser. In particular, press accounts emphasized that Marcus whipped Jodi, cut the word “slave” onto her stomach with a knife, shaved her head and branded her with his initial. However, Jodi testified and the government conceded that these activities were consensual, occurring before she moved to Maryland to be closer to Marcus and months before she became afraid and wanted to leave him. While cutting and branding may seem extreme to some, there is nothing inherently abusive about these activities. What shows Marcus to be an abuser and a criminal, if that is what he is, is not the physical things he did but that did them through force and coercion rather than mutual consent.

From the start, Marcus crossed lines within the BDSM community. Though Marcus has been publicly defended by personal friends in the BDSM community, the community as a whole has been ambivalent toward the case. Marcus’s approach to M/s relationships, as detailed in the trial record, included notions of “consensual non-consent” and “no-limits submission” that are controversial within the community. That is, Marcus made it known that once a woman had committed to his service, he would ignore her objections to specific activities or requests to leave. According to the trial record, Marcus used threats of blackmail to manipulate Jodi, and at one point instructed Jodi to entice her sister to visit and to drug her so Marcus could rape her (she refused). Some community members have suggested that the Marcus case may illustrate the legal boundaries of responsible BDSM, with “safe, sane and consensual” BDSM clearly protected by the law, and practitioners of “consensual non-consent” acting at their own risk.

The Supreme Court will hear arguments in United States v. Marcus (case no. 08-1341) early next year.

Defenders of Prop 8 seek to win Perry case without trial

The defendants in Perry v. Schwarzenegger have filed a motion for summary judgment in which they seek a ruling that, notwithstanding any factual disputes, there should be no trial because controlling precedents compel a ruling that Prop 8 is constitutional.

A summary judgment motion is a completely predictable move by defendants - try to get the plaintiff's case dismissed before you have to spend any time or money in discovery or trial. What is unusual is that in Perry, the judge has repeatedly demanded that the parties create a full factual record. (See this earlier post, or just click on the category "Perry  lawsuit" to get the background.) Despite that, though, this motion is the logical next step for defendants who have argued from the beginning that the constitutional challenge brought by the Ted Olson/David Boies team is, literally, groundless.

The motion is 117 pages long, so at this point I will just summarize the main points on which the defendants are relying, and add a little commentary:

> That the Supreme Court has foreclosed the question of whether there is a constitutional right for same-sex couples to marry by its dismissal of an appeal from one of the earliest marriage challenges - in Minnesota in 1973 - in a case called Baker v. Nelson. More in a future post about why this is a bogus argument, but for now suffice it to say that one or two things about the law have changed in the last 36 years, and the precedential weight of that form of dismissal is not entirely clear in any event.

> That there is no fundamental right to marry for same-sex couples because, under Washington v. Glucksberg, the test for such a right is whether it is grounded in history, and the right to "same sex marriage" isn't.  But then, of course, the right to marry is.

> That there should be no heightened scrutiny for sexual orientation classifications because two criteria for such scrutiny are not met: sexual orientation is not immutable and gay people wield "substantial political power." And that these two assertions are not only correct but beyond reasonable dispute? - this is a hornet's nest for both sides.

> That even under rational basis review, California voters had good reasons to enact Prop 8, including, among others, that "the traditional institution of marriage promotes:...the formation of naturally procreative unions;...stability and responsibility in naturally procreative relationships; [and] the naturally and mutually beneficial bond between parents and their biological children." Nothing new here.

> That Prop 8 is not tainted by animus. You've got to be kidding.

Oral argument on this motion is scheduled for October 14.  Sure wish I could be there ringside - it's going to be quite a show.

Happy 89th birthday to women's right to vote

The Nineteenth Amendment - women's suffrage - was ratified on August 26, 1920, when Tennessee put the campaign to secure ratification of two-thirds of the states over the top. It seems like another world, until one realizes, as Hillary Clinton noted of her mother, that a fair number of little old ladies among us were born before women could vote.

Here's the NY Times coverage:

Washington, Aug. 26 -- The half-century struggle for woman suffrage in the United States reached its climax at 8 o'clock this morning, when Bainbridge Colby, as Secretary of State, issued his proclamation announcing that the Nineteenth Amendment had become a part of the Constitution of the United States.

The signing of the proclamation took place at that hour at Secretary Colby's residence, 1507 K Street Northwest, without ceremony of any kind, and the issuance of the proclamation was unaccompanied by the taking of movies or other pictures, despite the fact that the National Woman's Party, or militant branch of the general suffrage movement, had been anxious to be represented by a delegation of women and to have the historic event filmed for public display and permanent record.

Secretary Colby did not act with undue haste in signing the proclamation, but only after he had given careful study to the packet which arrived by mail during the early morning hours containing the certificate of the Governor of Tennessee that that State's Legislature had ratified the Congressional resolution submitting the amendment to the States for action.

None of the leaders of the woman suffrage movement was present when the proclamation was signed. "It was quite tragic," declared Mrs. Abby Scott Baker of the National Woman's Party. "This was the final culmination of the women's fight, and, women, irrespective of factions, should have been allowed to be present when the proclamation was signed. However the women of America have fought a big fight and nothing can take from them their triumph."

Leaders of both branches of the woman's movement- the militants, headed by Miss Alice Paul, and the conservatives, led by Mrs. Carrie Chapman Catt -- some of whom had been on watch nearly all night for the arrival of the Tennessee Governor's certification, visited the State Department, and the militants sought to have Secretary Colby go through a duplication of the signing scene in the presence of movie cameras. This Mr. Colby declined to do, on the ground that it was not necessary to detract from the dignity and importance of the signing of the proclamation by staging a scene in imitation of the actual signing of the proclamation....

At the same time Mr. Colby congratulated the women of the country on the successful culmination of their efforts in the face of discouragements, and declared the day "marks the opening of a great and new era in the political life of the nation."

"I confidently believe," said the Secretary, "that every salutary, forward and upward force in our public life will receive fresh vigor and reinforcement from the enfranchisement of the women of America. To the leaders of this great movement I tender my sincere congratulations. To every one, from the president, who uttered the call to duty, whenever the cause seemed to falter, to the humblest worker in this great reform, the praise not only of this generation but of posterity will be freely given."...

Late this afternoon Mrs. Carrie Chapman Catt, head of the National American Suffrage Association, and Mrs. Helen H. Gardiner, another active worker in that organization, were received at the White House by President and Mrs. Wilson. The National Woman's Party, known as the militants and a rival organization to that headed by Mrs. Catt, was not represented.....

A mass meeting [and jubilee at Poll's Theatre tonight] was attended by women from every section of the country and a number of officials of the administration, including members of the Cabinet, were present.

DoJ's new tune on DoMA

The Department of Justice has just filed a new brief in the Smelt case that defends the constitutionality of DoMA, but also states the Obama administration's opposition to DoMA as a policy matter and explicitly repudiates anti-gay arguments based on parenting. It was DoJ's earlier brief in this case that prompted a firestorm of criticism from lgbt advocates.

The new brief continues to argue that sexual orientation classifications are subject to only rational basis review and that Congress was justified in enacting DoMA. So the bottom line defense hasn't changed. (There was never much reason to imagine that DoJ would fail to defend DoMA in court, however, especially in this across-the-board challenge.)

The most powerful and important aspect of this new brief is its categorical statement that there is no rational basis for the arguments in favor of discrimination that are grounded in claims about procreation and child-rearing. (See quotes below)  This puts the federal government on record as to these claims in a way that has never happened before. 

From the brief (emphasis is mine):

Under that deferential [rational basis] standard, this Court should find that Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo regarding the distribution of federal benefits in the face of serious and fluid policy differences in and among the states....Under rational basis review, Congress can reasonably take the view that it wishes to wait to see how these issues are resolved at the state level before extending federal benefits to marriages that were not recognized in any state when Congress tied eligibility for those benefits to marital status.

...[T]he government does not contend that there are legitimate government interests in "creating a legal structure that promotes the raising of children by both of their biological parents" or that the government's interest in "responsible procreation" justifies [DoMA]. [Multiple professional groups] have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents...[T]he United States does not believe that DoMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interest to defend DoMA's constitutionality.

In addition, the new brief emphasizes much more than the first one did that plaintiffs' challenge to DoMA can be dismissed solely on jurisdictional and standing grounds, without reaching the merits at all.

The Perry backstory: California scheming

The origins of the big kahuna of lgbt litigation - Perry v. Schwzenegger - are very LA. So what better place to get the backstory than an article in Variety?  Excerpts follow -

This suit is funded and directed by a newly formed group, the American Foundation for Equal Rights, that boasts Rob Reiner, Bruce Cohen and Dustin Lance Black among its board. The group is spearheaded by Chad Griffin, who worked in the Clinton White House in the 1990s before setting up an industry-centric political consultancy firm in L.A. ...

In a strongly worded letter to the [lgbt groups seeking to intervene] made public in July, Griffin charged that the groups had "unrelentingly and unequivocally acted to  undermine this case even before it was filed. In light of this, it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening."

While both sides are looking to Judge Walker for some kind of resolution [on who will control the litigation], the case reflects the tensions that have arisen following the passage of Proposition 8, and the anxiety among some Hollywood activists to take a different approach, even on their own.

Even before the election, some entertainment figures were growing nervous about campaign strategy. For instance, rather than channeling funds through the campaign, Ellen DeGeneres bought $100,000 worth of ad time on her own to run a spot against Prop. 8.

At the time, showbiz was accused of not doing enough, as many were   focused on the presidential race. But Griffin (as a consultant to the No on 8 campaign) helped secure contributions from Brad Pitt, Steven Spielberg and others. Along with Cohen, he was a central organizer of an event at the home of Ron Burkle that raised about $4 million, and produced an ad featuring Sen. Dianne Feinstein (D-Calif.). As the election neared, the polls narrowed, but they still fell short.

After Prop. 8 was passed, and protesters and activists called for a new ballot initiative in 2010, Griffin sought a different approach: a federal suit. After consulting legal and political experts and industry donors, including Reiner and Cohen, he was tipped that Olson was supportive of same-sex marriage rights.

They met in November, and Boies was approached about the case the   following month. It was a coup to land Olson and Boies, lawyers who argued on opposite sides of Bush vs. Gore, pursuing the same goal. Their effort could prove a much more expeditious way of securing same-sex marriage than pursuing it state-by-state in courts or through the electoral process.

"People's constitutional rights should never be subject to a popularity contest at the ballot box," Griffin says. He also has concerns about timing. He notes that with recent poll numbers in support of same-sex marriage below 50%, a campaign would need about $40 million to $60 million to succeed. "Once all necessary ingredients are in place, I believe this campaign could cross the 50% threshold," he says. "I suspect that is not in 2010."

The Griffin group and the trio of orgs are not the only ones with disagreements about how to forge ahead. The Courage Campaign, a  progressive org led by Rick Jacobs, is going ahead with plans to pursue an initiative next year. However, Equality California, one of the leaders in the fight against Prop. 8 last year, announced that it would wait longer to pursue an initiative in 2012. It cited current polling numbers and fund-raising difficulties. ...

Judge ups the ante in Prop 8 challenge litigation; more to come

Wasting no time, U.S. District Court Judge Vaughn Walker, who is hearing Perry v. Schwarzenegger, has zapped both the plaintiffs' team of attorneys (led by Ted Olson and David Boies) and defendants' lawyers (Charles Cooper et al) with an order essentially rejecting their case management statements for insufficiency. (Read Plaintiffs' case management statement and Defendants' case management statement.) The statements are intended to identify the issues on which the parties will introduce evidence; they also contain proposed schedules for different stages in the lawsuit. Judge Walker directed them to rewrite the statements to more specifically identify both the points they intended to contest (e.g., the existence or extent of the political powerlessness of lgbt people, a point relevant to the constitutional standard that will be applied in the case), as well as potential witnesses and categories of witnesses (historians, sociologists, economists, demographers, oh my).

The new order seems to be a good sign for the advocacy groups trying to intervene as plaintiffs, since their main complaint about the Olson/Boies litigation strategy has been its hesitancy to invest in building an extensive factual record. Judge Walker apparently values the capacity to map out a detailed plan for presentation of evidence, a challenge for which the groups can draw on their long experience in mounting gay rights litigation.

Both existing parties were ordered to revise their case management documents and file them tomorrow. The lgbt groups seeking to intervene will also file one tomorrow. The contours are starting to take shape of what could be the most extensive mobilization ever of experts and documents in an lgbt rights case.

On Wednesday, the combatants meet again in the courtroom to argue the pending motions to intervene and probably to hear the judge's timetable for discovery and pre-trial motions. Over the coming week, I'll be writing a series of pieces on aspects of the Perry lawuit.

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....