hunter of justice

Marriage, animus and the Supreme Court

Today's New York Times carries an op-ed by Bill Keller titled "A Brief for Justice Kennedy" in which he makes a sweet, but pretty much legally beside the point, argument that the Supreme Court should strike down exclusionary marriage laws because they harm gay couples. With all due regard to Keller for endorsing this argument, and realizing that he is writing for a non-legal audience, I think it nonetheless makes sense to remind people that the real briefs that will need to be filed with that or other courts have to come up with more than that.  Lawyers have to persuade a court that democratically-adopted laws not only cause harm, but are so invidious and so lacking in any legitimate purpose that they must be struck down.

Without belaboring legal technicalities, the key to achieving that goal will be to persuade judges that such a law is a product and instrument of unjustified bias, or, to use the term that has evolved in case law, of animus. And the elaboration of a more sophisticated theory of animus is one of major contributions of the Ninth Circuit's February opinion in the Prop 8 case.

Here's part of what I had to say about that in an essay titled "Animus Thick and Thin" published in Stanford Law Review online:

One fundamental point of the Perry decision is that singling out a socially disfavored group for the withdrawal of an important right reeks of animus. This should not be a controversial claim. Considered together with the denigration of gay people that saturated the pro-Proposition 8 campaign, the consequence of the “taking away” sequence of events in California [the state supreme court ruled that same-sex couples have a fundamental right to marry, then voters enacted Prop 8] is to trigger heightened rational basis, the standard of review used by the Supreme Court in Romer v. Evans. In my view, sexual orientation ought to be considered fully suspect when it is used as a basis for differential treatment under law, but neither the Supreme Court nor any U.S. court of appeals has so held.

By contrast, taking a closer look at laws infused with animus is something that the Supreme Court has done since 1973, when it struck down a law enacted to disqualify otherwise eligible “hippies” from obtaining food stamps. However, the Supreme Court has done so rarely and, more importantly, has never said that it was using this device. Indeed, how to categorize and assess animus has become a recurring and unresolved question in equal protection law.

Justice Scalia raised the stakes on animus in his dissent in Romer, in which he attacked the majority opinion for adopting “the proposition that opposition to homosexuality is as reprehensible as racial or religious bias.” Scalia derided the Court’s suggestion that voters had “been guilty of ‘animus’ or ‘animosity’ toward homosexuality,” and characterized its “stern disapproval of ‘animosity’ toward homosexuality” as a misreading of a “reasonable effort to preserve traditional American moral values.”

In Board of Trustees v. Garrett, a case that divided the Court five to four, the dissenting opinion argued that adverse treatment resting upon “negative attitudes, fear, or irrational prejudice” necessarily violated the Equal Protection Clause. Chief Justice Rehnquist, writing for the majority, replied that “[a]lthough such biases may often accompany irrational . . . discrimination, their presence alone does not a constitutional violation make.” Justices Kennedy and O’Connor both joined the Rehnquist opinion, but also wrote separately to say that “[p]rejudice . . . rises not from malice or hostile animus alone,” but also from thoughtlessness. Clearly the concept of animus marked highly contested ground.

Justice O’Connor responded in her concurring opinion in Lawrence v. Texas, where she spelled out the analysis for why evidence of animus (presumably when not merely “prejudice”) should trigger tougher review under the Equal Protection Clause, even for nonsuspect classifications. Perry v. Brown, however, is the first opinion with precedential weight to adopt Justice O’Connor's approach.

The Ninth Circuit accepted the proposition that there might be a rational reason—i.e., apart from animus—for a state to limit the benefits linked to marriage to only those couples who might “procreate accidentally.” Since same-sex couples don’t have those kinds of accidents, including them in the group eligible to marry would not be necessary to advance that interest. Thus, the court reasoned, a state could rationally choose to exclude gay couples from marriage.

The court found, however, the proponents of Proposition 8 advanced no legitimate reason for taking away the right to marry and its presumed protective benefits for children from the broader group covered under a regime of marriage equality. 

The difficulty with this part of the court’s reasoning is that the accidental procreation argument itself is so strained. Using marriage as a state-sanctioned mechanism for enhancing the likelihood that adults who have children will legally bind themselves to each other and thereby—so the theory goes—provide a stable family dynamic for raising children is advanced as much by allowing gay couples to marry as allowing straight couples to marry.  So for the court to accept that accidental procreation is a plausible state interest, it has to accept that the state could have a legitimate interest in protecting only the children of unplanned and unwanted pregnancies. 

The Perry court did not have to reach the question of whether the accidental procreation rationale could ever make sense, so it didn’t. Beneath this hesitancy surely lay an understanding that profound shifts in social meaning occur in slow motion; that very factor justifies minimalist adjudication.

Matt Coles on the Perry decision: Can it be limited to California?

Matt Coles, former Director of the ACLU LGBT Rights Project and now Deputy National Legal Director of the ACLU, and I will be trading comments this week on the Ninth Circuit panel decision in Perry v. Brown [2012 WL 372713]. 

Following are Matt's comments on the decision. I will respond in a future post.

 

Are taking away and denying different under equal protection? 

 Judge Stephen Reinhardt’s opinion for the Ninth Circuit Court of Appeals in the Prop. 8 case purports, in effect, to limit the decision to California.  The only question the Court need answer, Reinhardt writes, is whether the “…elimination of the rights of same-sex couples to marry…” was constitutional (slip op. at p. 2, emphasis in the original).  Since California is the only state that gave same-sex couples the right to marry and then took it back, the Perry case applies only to California as long as there is a constitutionally significant difference between withdrawing a right, as California did, and withholding it in the first place. 

The context of a case can change the legal rule that applies.  If I am arrested for speaking on public property, it matters whether I am standing in a park or at the entrance to the county jail.  Speech in parks gets greater protection.

Judge Reinhardt appears to say that the difference between withdrawing and withholding does matter for constitutional purposes because withdrawing a right “…suggests a more deliberate purpose than does the inaction of leaving it as it is.”  But amending a constitution to preemptively deny marriage to same-sex couples is more deliberate than inaction as well.  More to this point, there isn’t much in equal protection law to suggest that degrees of deliberateness matter.   

The Opinion seems to be on slightly stronger ground when it then invokes Romer v. Evans as authority for the proposition that withdrawing a right can violate the constitution even when denying it in the first place would not have.  Colorado’s Amendment 2, the subject of the Romer case, took away the power of the Colorado legislature and local legislative bodies to protect gay men, lesbians and bisexuals from discrimination.  There was no argument in Romer that Colorado was required to pass laws forbidding discrimination against LGB people. 

Still, Romer won’t hold the weight the 9^th Circuit wants to lay on it.  Colorado’s Amendment 2 did repeal three municipal ordinances.  But it also forbade the state legislature, which had not passed any laws protecting LGB people, from ever enacting any.  The Court draws no distinction between the withdrawal of actual rights in the three cities and the preemptive withholding at the State House.  In describing the effect of Amendment 2, it treats them as of a piece.  The problem with Amendment 2 was not that it repealed the ordinances, but that it imposed a selective constitutional bar to protective legislation.

At one point the 9^th Circuit opinion suggests that the somewhat confusing “literal violation” section of Romer establishes a rule of equal protection that withdrawing rights creates “an inference of animus” (slip op at 16), which requires “careful consideration” of possible legitimate interests which might rebut the inference (at 17).   Over the years the Supreme Court has resisted the suggestion that from time to time it employs a form of “heightened rational basis” review.  (See Heller).  Nevertheless, if there is rule calling for more careful review once an “inference of animus” has been raised, the device that raises the inference under Romer is a selective constitutional bar to legislation, not a withdrawal of existing rights.  An inference like that would be raised not just by Proposition 8 but by all 29 state constitutional amendments which forbid state legislatures from permitting same-sex couples to marry. 

Still, there is another way that the context of a case may distinguish it legally from another otherwise similar case.  Some aspect of the context may make the constitutional analysis turn out differently.  That’s the other reading of Romer; that the selective bar on constitutional protection caused Amendment 2 to flunk the rational basis test when the failure to pass a protective law would not have.  Whether the withdrawal of rights that was Prop. 8 does that as well is the subject of part 2.  

Part 2: What makes California special  

Even if the presence of a particular fact does not call up a different legal rule than its absence would, the fact can change the outcome of a case if it changes the way the constitutional analysis comes out.  So for example in the Cleburne case, the city argued that requiring homes for the mentally disabled to go through a special permit process was rational because the area was in a 500 year flood plain, which raised evacuation concerns.  Without more, that might have seemed rational.  But the local zoning code allowed hospitals and other group uses without the special permit process.  The Court found it difficult to see how group homes and hospitals could be thought different in terms of evacuation. 

The question in the Prop. 8 case then is whether the fact the 9^th Circuit focuses on—that Prop. 8 withdrew rights LGB people had—changes the way equal protection analysis comes—or ought to come—out.

The 9^th Circuit says the sponsors of Prop. 8 and allied Friends of the Court offered four rationales for Prop. 8, and then gives us five: 1) increasing the likelihood that children will be raised by two biological parents; 2) channeling “irresponsible procreation;” 3) proceeding with caution before making major changes to marriage; 4) protecting religious freedom; and 5) preventing children from being taught that same-sex relationships are as good as heterosexual marriages. 

The Circuit’s explanation of why the last three rationales are not rational does not in any sense turn of the fact that Prop. 8 withdrew rights from LGB people. 

The Court says that a ban on marriage for same-sex couples cannot be thought of as “proceeding cautiously.”  A moratorium, which allowed the legislature to decide after study (not far from what the Hawaii amendment did), it suggests, would be moving cautiously.  A ban is an end.  That’s true enough, but it is also true of the other 28 state constitutional bans passed by voters. 

The Circuit tells us Prop. 8 can’t rationally be thought to have been aimed at making sure that religious institutions wouldn’t be required to provide services to same-sex couples since Prop. 8 didn’t change the anti-discrimination laws.  That’s especially true since “domestic partnership” in California is a marital status protected from discrimination just as marriage is.  If the crucial fact turns out to be that same-sex couples retain the same protection against discrimination, it’s a distinction California shares with the seven or eight (depending on what you do with Nevada) states that also have full civil union.  If it’s the fact that the Proposition alone didn’t change the civil rights laws, it’s a distinction shared with the other 28 amendment states.

The Circuit has a similar explanation for why the teaching rationale won’t fly: Prop. 8 made no changes to the laws on what schools can or can’t teach.  Whether that is true of some or all of the other 28 states turns on their education laws (some may require that marriage be taught as superior, while California does not).  But even if California is alone here, it is because of its education laws, not the withdrawal of marriage.  So we don’t know if California stands alone.  (In this section, the Court hints at what might be a far better reason to reject this argument: that it comes down to nothing more than saying we will make LGB people inferior so that our children can be taught they are so.  That seems a clear violation of the bedrock rule that you can’t make people unequal just because you want to treat them differently.  But that’s another piece)

Then there is the first rationale—getting children raised by two biological—read opposite sex heterosexual—parents.  According to the Court, Prop. 8 did not increase the likelihood that children will be raised by pairs of biological parents because it did not change California’s laws on parenting.  Both before and after Prop. 8, committed same-sex and committed opposite sex couples had precisely the same rights and obligations to become parents and raise children.  Again, all quite true, but true as well of all nine full civil union states.

Which brings us to the favorite of marriage opponents, “irresponsible procreation.”  A lot of people make fun of this, but they shouldn’t.  It isn’t crazy to think that one purpose of marriage is to entice and pressure heterosexuals to enter into a binding union so that they’ll stay together and raise their offspring together.  It is one of the functions of marriage.  Judge Reinhardt is quite right though that while pressuring heterosexuals to commit might explain why you would only extend marriage to them, it is no explanation for taking marriage away from same-sex couples.  It is no explanation, that is, unless “channeling procreation” is the only purpose of marriage, something even the most rabid opponents of marriage for same-sex couples are unwilling to say (right now).

So while the fact that Prop. 8 took rights away from same-sex couples doesn’t change the legal rule used to analyze it, it does change the analysis.  But not completely.  And how much it is truly limited and how much it is not may have a great deal to do with what happens next.  That’s the subject of part 3. 

Part 3: Adding it up.

The claim that marriage is not extended to same-sex couples because one of its purposes is to pressure heterosexuals to have children inside a committed union may or may not make sense elsewhere.  It doesn’t make sense in California where the issue is not who ought to be included in marriage, but why it ought to be taken away from same-sex couples. 

 That leaves the “irresponsible procreation” argument alive in the other states of the 9^th Circuit and untouched by 9^th’s reasoning elsewhere.  That’s important, because “irresponsible procreation” has become the leading successful argument for not extending marriage to same-sex couples (see the Conaway case in Maryland, the Andersen case in Washington and the worst reasoned of the whole lot, the Hernandez case in New York). 

Denying the protections of marriage to the children of same-sex couples might discourage some of those couples from having children where those protections aren’t otherwise available; that is in a state that doesn’t a civil union or domestic partnership.  So that argument is alive in Arizona, Alaska, Idaho and Montana.  But it is dead in Hawaii, Nevada, Oregon and Washington.  The existence of identical treatment for both kinds of couples make “two biological parents” an untenable argument for refusing to extend as well as to exclude same-sex couples from marriage in civil union states.  That’s probably true of the “religious freedom” and “teaching our children” rationales as well. 

 The “cautious approach to change” rationale is pretty much a dead letter in the 9^th except in Hawaii, which fits the bill because it’s amendment allows the legislature to extend marriage to same-sex couples (all the 9^th Circuit states passed anti-marriage state constitutional amendments). 

So it is true that in one very important respect—the viability of what has become the leading argument for limiting marriage to opposite sex couples—California stands alone.  Moreover, and this should not get lost in the shouting if the case does get to the Supreme Court, the Court’s reasoning on the other significant rationale—encouraging opposite sex parenting--apply to California and the other civil union states, but not beyond.  So except for one patently silly claim—that forbidding something in your fundamental charter is a way of giving it measured consideration—even on the secondary arguments, this is no more than a case about granting legal equality but using the law to deny social equality.   Not that that isn’t enough; it just isn’t everything. 

Ninth Circuit rules that Prop 8 has no rational basis; Supreme Court review far from certain

Today's decision from the Ninth Circuit ruling that Prop 8 is unconstitutional because it violates the Equal Protection Clause, even under a rational basis test, is terrific. Why do I love it? Let me count the ways.

Its narrow rationale gives anti-gay advocates a much smaller target to try to hit. As I had hoped for (over and over again), the court wrote this opinion so that it applies only to California. Only in California did a state supreme court rule that same-sex couples have a state constitutional right to marry, only to have that right taken away by voters. From the decision:

Whether under the Constitution same-sex couples may ever be denied the right to marry . . . is an important and highly controversial question. . . . We need not and do not answer this broader question in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of 'marriage,' and Proposition 8's only effect was to take away that important and legally significant designation... 

[T]he Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason...Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place...The action of changing something suggests a more deliberate [invidious] purpose than does the inaction of leaving it as it is.

This reasoning dramatically lowers the stakes in the Perry litigation, and leaves for another day the broader constitutional question of whether, regardless of a prior state court ruling, same-sex couples have a federal constitutional right to marry in every state.

The absence of a decision on the big question greatly increases the possibility that the Supreme Court will not grant cert. I can imagine, for instance, that Chief Justice Roberts might conclude that gay marriage is precisely the kind of issue best avoided unless absolutely necessary and therefore might vote no on a cert petition, leaving conservative Justices a vote short of the four needed for the Court to take a case.  Contrary to what many in the press are saying, it is quite possible - not certain, but possible - that the Supreme Court will never hear arguments in this case.

Did someone mention Romer? Virtually the only major precedent cited in Judge Reinhardt's opinion is Romer v. Evans, the 1996 opinion of the Supreme Court written by Justice Kennedy, the key swing vote on the Court. If the Supreme Court does end up considering the merits in this case, Reinhardt's opinion positions the case as a referendum on Romer, saying in a lot of different ways that Proposition 8 sure looks a lot like Amendment 2 (the Colorado provision invalidated in Romer). Even the cadence of the Perry decision sounds like Romer. Of course, Justice Kennedy could decide that this opinion takes what he wrote in that case too far, but I can't imagine a better framing for increasing the likelihood that Kennedy would be willing to affirm. [Alas, if only Justice O'Connor were still on the Court, a good outcome would be so much more likely.]

Did no one mention Lawrence? If Romer v. Evans is all over the Perry decision, the precedent notable for its absence is Lawrence v. Texas, the 2003 Supreme Court decision (also written by Justice Kennedy) holding that sodomy laws violate the individual's liberty interest in engaging in sexual conduct (private, adult, consensual, non-commercial) without interference by the state. Relying on Lawrence would have taken the Ninth Circuit back down the rocky road of determining whether that decision can be applied to invalidate restrictions that are less severe than criminal laws. LGBT rights advocates have not been terribly successful in using Lawrence as the basis for broadening the scope of the liberty interest so that it bars laws that burden (rather than criminalize) intimate relationships; this pair of judges decided not to go there. 

Time is on our side. Needless to say, the defenders of Prop 8 have not chatted with me about what they plan to do next. But if they seek and obtain en banc review, this case will remain in the Ninth Circuit for quite a while more - let's say a year. (It is already almost three years since it was filed.) Then they seek review in the Supreme Court of whatever the en banc court declares. By that time, it is not crazy to imagine that there could be four or so more states that have adopted equal marriage laws, all by majoritarian means. It's also not crazy to imagine that there might have been an alteration of who is on the Supreme Court. There are way too many variables and possibilities to try to predict an outcome. But the picture for advocates of same-sex marriage is only going to get brighter. 

Updates from the end of 2011

Here's what we've missed from the last two weeks:

 It's a Navy tradition that when a ship returns to home port, there is a lottery to pick the sailor who gets to be the first to kiss a loved one. Petty Officer 2d Class Marissa Gaeta won the prize on December 22, and when her ship docked in Virginia Beach, she got to kiss her girlfriend Citlalic Snell. The crowd cheered. Another example of the disastrously horrible effect on morale and unit cohesion of repealing Don't Ask Don't Tell.  Not.

In Keeton v. Anderson-Wiley, the Eleventh Circuit Court of Appeals ruled that Augusta State University could require a remediation course for a graduate student in its counseling program who wanted to recommend conversion therapy for gay patients. The student had argued that her religious freedom was violated, but the court found that the university's actions were neutral and a legitimate requirement in light of the concern that Keeton would violate ethical codes governing counselors during her counseling practium, which involved actual patients.

The death of John Lawrence, one of the men who resisted prosecution for gay sex in a case that went to the Supreme Court and produced a ruling that criminal laws prohibiting (most) consensual sex are unconstitutional. Sadly, his co-defendant Tyron Garner had died earlier. 

Michigan Governor Rick Snyder signed into law a measure prohibiting state government agencies from offering benefits to unmarried partners of employees. It is reportedly unclear whether the new law applies to public universities in the state, because universities have some degree of autonomy under state law.

Debates arose in Zimbabwe over whether drafters of the new constitution should include a provision guaranteeing the rights of lgbt people.

The Victory Institute announced that 48 out of the 50 states have at least one openly gay elected official (to answer your question: Alaska and South Dakota).

Welcome to 2012...

Cuyahoga County settles anti-discrimination case

Two months ago, I described a federal court decision in Cleveland that allowed a county employee to pursue her claim that the discrimination against her based on sexual orientation was prohibited by the Equal Protection Clause. The agency for which Shari Hutchinson worked had an anti-discrimination policy in place, and I wrote about her case to note how little protection is provided by policies that do not have enforcement mechanisms. Hutchinson v. Cuyahoga County Board of County Commissioners (2011 WL 4452394).

Now the case has been resolved in the way most such claims are concluded after a motion to dismiss is denied: the parties have settled.  According to Freedom to Work, Hutchinson obtained a $100,000 settlement from the defendant. Because the employer was a public sector agency and therefore an arm of the state, the Constitution applied to its actions.

Ohio is one of those large and important states - Pennsylvania and Michigan are others - that has no anti-discrimination law protecting lgbt workers. If Hutchinson had worked in the private sector in Ohio, she would not have had any legal basis to challenge the discrimination. This may have been a rather small scale lawsuit (except for Hutchinson), but that gap in the law is an outrage. 

The week ahead: December 5, 2011

Monday, December 5 - Trial begins in Orozco v. Attorney General of Belize, the challenge to the law criminalizing homosexual conduct in Belize.

Tuesday, December 6 - UPDATE: The Fourth Circuit announced that oral argument would be delayed in this case; no new date was set. Oral argument before the Fourth Circuit in Greater Baltimore Center for Pregnancy Concerns v. Mayor and City Council of Baltimore, in which the District Court ruled that a city ordinance violated the First Amendment rights of anti-abortion counseling centers by requiring them to post a sign in the reception area informing patients that they did not refer for abortion services. 768 F. Supp.2d 804 (D.Md. 2011). 

Also December 6 - Deadline for proposals for the Law and Society Conference to be held June 5-8, 2012 in Honolulu.

Thursday, December 8 -Two oral arguments before Ninth Circuit, first on whether the videotapes of the trial in the Perry case, challenging the constitutionality of Prop 8, should be released; and immediately following, on whether Judge Vaughn Walker should have recused himself from trying the case because he has a same-sex partner and therefore would have the option to marry if Prop 8 were found to be unconstitutional.

Also December 8 - Oral argument in Choice Inc. of Texas v. Greenstein. Despite the Texas name of the plaintiff, the case involves a Louisiana law allowing state officials to cite abortion clinics for regulatory violations and then immediately close them, without granting the opportunity to correct any deficiencies, unlike the process for other medical facilities. The District Court dismissed the complaint on grounds of ripeness. 781 F. Supp.2d 313 (M.D.La. 2011). Judges James Dennis, Edith Brown Clement and Priscilla Owen comprise the  panel who will hear the argument.

Also December 8 - Deadline for paper proposals for Feminist Legal Theory Workshop on Privatization and Social Responsibility to be held February 17-18, 2012 at Emory Law School.

Ace Supreme Court litigator defending DoMA, challenging health reform

Paul Clement, who has argued more Supreme Court cases in the last decade than any other lawyer, is likely to be visiting the Justices again later in this term to argue against health reform and perhaps next term to try to persuade them that DoMA is constitutional. Given his skill and relative youth (45), Clement is almost certain to be offered an appellate judgeship if a Republican is elected President. And one day he might even walk up those marble Supreme Court steps as a Justice - scary thought.  This profile is excerpted from today's NY Times:

As solicitor general for three years and deputy solicitor for four [under President George W. Bush], Mr. Clement appeared before the Supreme Court 49 times, defended the administration’s detention of terrorism suspects, fought off challenges to the McCain-Feingold campaign finance law and validated the prosecution of medical marijuana growers in a landmark commerce case...

At the moment, he is defending both Arizona’s tough new law against illegal immigration and Congress’s prohibition against federal recognition of same-sex marriages. And if, as expected, the Supreme Court soon announces that it will hear a challenge to last year’s health care law, it seems increasingly likely that it will be Mr. Clement who argues, in the thick of the 2012 campaign, that President Obama’s signature domestic achievement is unconstitutional...

...As a former clerk to Justice Antonin Scalia, Mr. Clement maintains a breezy but respectful rapport with the justices. It is assumed that his familiar name on a petition can improve the 1-in-100 chance that a case will be accepted for consideration... [He] has argued more Supreme Court cases since 2000 than any other lawyer...

Florida and the other plaintiff states [challenging the health reform law] have a contract with Mr. Clement, at discounted rates, that is capped at $250,000. In the same-sex marriage case, House Republicans recently tripled the cap on his fees to $1.5 million, paid from tax coffers. Without being precise, Mr. Clement confirmed speculation that he typically bills in the range of $1,000 an hour.

Other appellate specialists say Mr. Clement brings both exhaustive preparation and acute insight to his cases. The son of an accountant and a homemaker from Cedarburg, Wis., north of Milwaukee, he received his bachelor’s degree from Georgetown, a master’s in economics from Cambridge and a law degree from Harvard, where he helped edit the law review when Barack Obama was its president. Mr. Clement now lives in Alexandria, Va., with his wife and three sons...

Mr. Clement is admired by colleagues and adversaries for the straightforward clarity of his presentation. He famously argues without notes, leaving his hands free to jab and gesticulate, sometimes as if wringing an imaginary neck. “He just internalizes every single aspect of the case,” said Viet D. Dinh, Mr. Clement’s law partner. “He makes the argument not from memory but from total immersion.”...

Judge orders disclosure of petition signers' names in Doe v. Reed remand

On remand from the U.S. Supreme Court, Federal District Judge Benjamin Settle of the Western District of Washington ruled yesterday that the individuals who signed petitions to bring an effort to repeal the state's domestic partners law were not entitled to an exemption from the name disclosure mandated by the state's Public Records Act. Judge Settle granted summary judgment to the Secretary of State based on his finding that Protect Marriage Washington had provided no compelling evidence of threats or harassment against petition signers: 

[If Protect Marriage could get around the Public Records Act] by simply providing a few isolated incidents of profane or indecent statements, gestures, or other examples of uncomfortable conversations, ... disclosure would become the exception instead of the rule.

Judge Settle distinguished the case from earlier decisions granting protections to civil rights organizations that challenged laws requiring disclosure of membership lists:

Doe has not supplied competent evidence or adequate authority to support its claims that R-71 signers constitute a fringe organization with unpopular or unorthodox beliefs or one that is seeking to further ideas that have been historically and pervasively rejected and vilified by both this country’s government and its citizens.

The case was on remand from the Supreme Court's decision in Doe v. Reed, 130 S.Ct. 2811 (2010), in which it ruled that the Washington state law requiring name disclosure was not facially unconstitutional as a violation of privacy rights. The Supreme Court sent the case back to District Court for a decision on whether this particular group of petition signers could demonstrate the need for an exemption from the law.

Protect Marriage Washington may appeal the new ruling as well, although numerous individuals were named in Judge Settle's opinion and the full list was made available to the public yesterday after the decision was announced. 

Judge to DoJ opposing equal discharge pay for gay soldiers: Good luck with that

The AP's coverage of the hearing yesterday in Collins v. U.S.:

Two days after repeal of the "don't ask, don't tell" policy against gays serving openly in the military, the Obama administration was in court Thursday opposing a lawsuit seeking full severance pay for those dismissed under the law. The American Civil Liberties Union is seeking class action status for 142 people who only got half pay after their discharge because of being gay. But the Justice Department asked the U.S. Court of Federal Claims to dismiss the case.

Judge Christine Odell Cook Miller said she probably will let the case continue and questioned why the government wouldn't pay now that the law has changed. "Your timing is exquisite - two days after the policy goes into effect eliminating `don't ask, don't tell,' here we are," she said as she took the bench. "I would consider this to be an unenviable argument to have at this time," she told the government's attorney later.

The case was filed by the ACLU on behalf of former Air Force Staff Sgt. Richard Collins of Clovis, N.M. He was honorably discharged in 2006 after nine years of service when two civilians who worked with him at Cannon Air Force Base reported they saw him kiss his boyfriend in a car about 10 miles from the base. The decorated sergeant was off-duty and not in uniform at the time, according to the lawsuit...

The Air Force paid Collins $12,351 instead of the $25,702 he expected after his discharge.

Separation pay is granted to military personnel who served at least six years but were involuntarily discharged, part of an effort to ease their transition into civilian life. But the Defense Department has a list of conditions that trigger an automatic reduction in that pay, including homosexuality, unsuccessful drug or alcohol treatment or discharge in the interests of national security. That policy went into effect in 1991, two years before "don't ask, don't tell" became law.

The suit argues it is unconstitutional for the Defense Department to unilaterally cut the amount for people discharged for homosexuality.

The administration is not defending the merits of the policy. Instead, Justice Department lawyer L. Misha Preheim argued the defense secretary has sole discretion to decide who gets what separation pay and the court cannot rewrite military regulations.

Miller said she would issue a ruling on the government's motion to dismiss by Oct. 15 after full review of the Justice Department's arguments, but her preliminary decision was to deny the motion. She warned Preheim and a uniformed Air Force attorney also at the defense table that they should be prepared for the case to move forward. She said it's probably appropriate to certify it for class action status, if the government really thinks it's worth it to continue fighting the case. "I can't believe this is something the military wants to revisit now," she said.

Joshua Block, attorney with the ACLU lesbian gay bisexual and transgender project, said the class action would cover 142 people who got half pay for being discharged for homosexuality in the past six years - the time period covered by the statute of limitations - for a total payment of $2.1 million...

Challenge to Arizona law ending same-sex partner benefits for state employees may go en banc or beyond

In a ruling just after Labor Day, the Ninth Circuit upheld a preliminary injunction against enforcement of an Arizona law eliminating partner benefits for unmarried couples insofar as it affects same-sex couples. In Diaz v. Brewer, a panel consisting of Judges Schroeder, Thomas and Bennett affirmed the order issued by the District Court in 2010 (727 F.Supp.2d 797). 

In its opinion, the Ninth Circuit found that there no was no rational relationship between the statute and a legitimate state interest. The state's primary defense was cost savings. Both the lower and appellate courts rejected that rationale, based on evidence that the cost of providing benefits for same-sex couples was minimal and on the fact that different-sex couples could marry and thereby obtain access to the benefits. Perhaps most notably, the Court of Appeals found that there was an Equal Protection violation based on the disparate effect on same-sex couples of the rule, which is to say, the court did not require a finding of discriminatory intent behind the law.

If it is not upset by a subsequent ruling, the decision in Diaz may play an important role in the Ninth Circuit's consideration of the constitutionality of Prop 8. The Diaz plaintiffs, represented by Lambda Legal, are waiting for Arizona to decide whether to seek rehearing en banc; the state has until September 27 to file.

The big question is whether this case could take the inside track to the U.S. Supreme Court. If the Ninth Circuit denies the motion for rehearing or if the case does go en banc and the state loses again, Arizona could seek Supreme Court review.

Notes from Lavender Law in Los Angeles

OK, posting the photo at right may be silly, but this example of the LA school of urban sculpture looms over the hotel where the Lavender Law Conference just wrapped up, so I've had to look at it for several days running. And it's a scene too absurd not to memorialize.

More seriously, on to a few thoughts inspired by the conference:

I spoke on a panel on popular constitutionalism, where Michael Boucai, Kim Buchanan, Praveen Fernandes, Amanda Frost, and I discussed the tension between expansion of the devices of direct democracy (including ballot referenda and judicial elections) and the risks they pose to unpopular minorities, as well as the kinds of mediating institutions (a very different structure for campaign finance, for starters) that could mitigate the downsides. California is obviously the example of direct democracy run amuck, but the question of how to preserve the value of popular constitutionalism without repeating California craziness is not necessarily easy.

Although many people see Prop 8 as irrefutable evidence of why popular constitutionalism is a seriously bad theory, I think it's more complicated than that. A vote to eliminate a fundamental right from a group classified on a suspect basis is pretty squalid. On the other hand, if Prop 8 itself were eliminated by popular vote rather than by a judicial ruling, that arguably would be a far more powerful embedding of the norms of equality and dignity into the bloodstream of the body politic. The prime strategy chosen (but by whom and for what reasons?) was to seek relief before the federal judiciary. Now the existence of that lawsuit plus the staggering cost of mounting an initiative campaign in this state virtually precludes any chance of opting for an electoral strategy.  I'm not prejudging the debate; I can imagine deciding to take either route after weighing all the pro's and cons. (NB - I would frame the constitutional claims in the way that the City of San Francisco has, which is different from the framing by lawyers for the individual plaintiffs.) But it would have been nice to try to think through those questions before the proverbial train left the station. 

This morning, as part of a panel on family law, James Esseks of the ACLU described ballot measures that are likely in the future, noting that 2012 may mark the first time that pro-lgbt advocates place a same-sex marriage question before voters. At this point in time, only one ballot measure is certain.  In Minnesota, a provision to amend the state constitution to ban same-sex marriage will be on the ballot. Such a provision may also go to voters in North Carolina.

In Maine and Oregon, though, there could be ballot questions in 2012 that would repeal bans previously adopted by voters. Advocates in Maine have already begun collecting signatures in a petition campaign, and Basic Rights Oregon is seriously considering whether to do so. To both stop an anti-gay law in either Minnesota or North Carolina, and to repeal an existing anti-gay law in either Maine or Oregon - by popular vote - would mark another turning point on this issue, politically if not legally.

In general, advocates have come to assume that legislative adoption of a marriage equality law will not end the debate in any given state. If any mechanism for a popular vote to amend the state constitution exists, they assume that gay marriage opponents will use it. This means that a legislative strategy is incomplete without first doing the same kind of opinion polling and other prep work that go into an election campaign. So, for example, the strategy to enact a marriage bill in a state like Maryland, where legislative adoption may be possible in the next few years but which also has a referendum mechanism, will include grassroots election campaign style work and not just the efforts required to lobby members of the state legislature. Enacting a marriage equality law is only the first step; whether the law endures will depend on whether it can be sustained by popular vote. 

Popular constitutionalism.

SCOTUSblog hosts debate on constitutionality of marriage exclusions

Over at SCOTUSblog, there is yet another symposium/debate on gay marriage, specifically on whether/when/how and why laws banning it or barring recognition of it are likely to hit the dust. Combatants include 

Carlos Ball – Rutgers University School of Law

Bob Barr -  Former Representative for  Georgia’s Seventh Congressional District

Thomas Berg – University of St. Thomas School of Law

Dale Carpenter – University of Minnesota Law School

Erwin Chemerinsky – UC Irvine School of Law

David Cruz – USC Gould School of Law

William C. Duncan – Marriage Law Foundation

John Eastman – Chapman University School of Law

William Eskridge – Yale Law School

Maggie Gallagher – Institute for Marriage and Public Policy

Charles Fried – Harvard Law School

Andrew Koppelman – Northwestern University School of Law

Pamela Karlan – Stanford Law School

Robert Levy – Cato Institute

Laurence Tribe – Harvard Law School

Brian Raum – Alliance Defense Fund

Ruthann Robson – CUNY School of Law

Robin Wilson – Washington & Lee School of Law

Kenji Yoshino – New York University School of Law

Here's a sane contribution - with which I happen to agree :>) - from Andy Koppelman:

The Court hasn’t recognized a new suspect classification in decades, but it won’t need to take that step in order to strike down [DoMA].  For non-suspect classifications, the constitutional test is what is called rational basis review:  the law will be upheld in court if it is “rationally related to a legitimate state interest” (New Orleans v. Dukes). This usually means that the law will be upheld.  In a few rare cases, however, the Court has used the rational basis test to strike down laws.  In these cases, the Court deploys what scholars have called “rational basis with bite,” to distinguish it from the toothless test that is ordinarily applied.  This is the basis on which the Court is likely to invalidate DOMA.

Lambda files Supreme Court cert petition in gay adoption case

Lambda Legal filed a petition yesterday seeking Supreme Court review of a ruling by the U.S. Court of Appeals for the Fifth Circuit en banc (639 F.3d 146) upholding the refusal by Louisiana to recognize a two-parent adoption order from New York. A gay male couple had adopted a child born in Louisiana, and sought to have the birth certificate changed to reflect the boy's new parents, a standard post-adoption action. The state's Registar Office refused to issue the new certificate because of a state policy against issuing an amended certificate if the child’s parents are not legally married.  Another Louisiana law prohibits adoption by two unmarried adults. 

Despite clear law on the point that adoption orders are entitled to full faith and credit, and thus enforcement by other states, the Fifth Circuit held that the Full Faith and Credit Clause only operates as a mandate to state courts, not to state legislatures or state executive officials.

The Supreme Court will not rule on whether to accept the case - Adar v. Smith, State Registrar (docket 11-46) - until it returns from its break in early October. 

More background from SCOTUSblog:

The ruling by the Fifth Circuit, the new petition argued, treats children differently on the basis of the marital status of their adoptive parents.  “This Court,” it said, “has made clear that government discrimination against children based on disapproval of their parents requires careful scrutiny and strong justification.”  Moreover, the petition asserted, the Fifth Circuit has cleared the way for state legislatures and executive officers to disregard out-of-state legal judgments “based on policy assessments about the merits of those judgments.” ... 

A valid birth certificate, reflecting parentage and citizenship, the couple has argued, is vitally important to both the child and his parents, as they seek to travel, to place him in school, to arrange for his medical care, to determine his inheritance and insurance rights, to claim him as a dependent for tax purposes, and a variety of other legal and practical opportunities as the boy grows up.  Some of the difficulties that arise without a valid birth certificate have already happened to J.C.’s parents, they noted....

Going to federal court, Adar and Smith made two constitutional claims: first, they argued that the Constitution’s Full Faith and Credit Clause requires states to accept as valid the legal judgments issued in other states, and, second, they argued that singling out unmarried couples for denial of an amended birth certificate is a violation of the Fourteenth Amendment’s guarantee of legal equality.

A federal judge and a three-judge panel of the Fifth Circuit agreed with the first challenge, but that ruling was set aside when the full 16-member Circuit Court agreed to hear the case en banc.   Dividing 11-5, that Court ruled that the Full Faith and Credit Clause only operates as a mandate to state courts, not to state legislatures or state executive officials, and that the federal District and Circuit Courts have no jurisdiction to hear a civil rights claim seeking to enforce the Clause against state officers.

The only way to enforce the Clause, it concluded, is to challenge a state court’s refusal to honor another state’s legal judgment, and then appeal directly to the U.S. Supreme Court.

By a vote of 9-7, the Circuit Court ruled that, even if a civil rights lawsuit could be filed (under so-called Section 1983), that section was not violated in J.C.’s case because state officials have authority to make their own judgments about how and when to issue birth certificates.

And, even though the District Court and the Circuit Court panel did not decide the legal equality claim, the en banc Court rejected it on the merits — again, by a 9-7 vote.  It did so by applying the lowest standard of legal proof for a claim.  In doing so, the majority said that “adoption is not a fundamental right,” and cited a research study that claimed marriage provides a better environment in which to raise children.   Children’s interests, it said, are not well served by “the freely severable relationship of unmarried partners.”

The main dissent, speaking for five judges, argued that the Circuit Court had “trivialized” the Full Faith and Credit Clause, and had wrongly reached out to decide the legal equality issue when two prior courts had not even addressed it.

The couple’s appeal to the Supreme Court raises three questions: first, whether the Full Faith and Credit Clause applies to a state executive official who disregards an out-of-state judgment for policy reasons; second, whether Section 1983 provides a legal route to challenge a violation of the Clause, and, third, whether it violated the Equal Protection Clause to refuse to respect an out-of-state judgment based upon differing treatment of unmarried couples.

A new (limited) line in the sand for Equal Protection analysis

The United States Department of Justice is now on record before the federal courts as supporting heightened scrutiny for sexual orientation classifications, at least in civilian contexts, and as seeking the invalidation of laws that bar legal recognition of same-sex marriages.  In In re Golinski, the Department filed In its first merits brief since Attorney General Holder issued a letter announcing that DoJ would no longer defend the constitutionality of DoMA. Although the brief does not go as far as I have stated in the first sentence, it is unlikely that a distinction could be drawn that would not extend its position to all civil law and to recognition of a marriage that was validly performed under state law.

The brief tracks the analysis of the Holder letter, but, because of the litigation context, it ratchets up the analysis from an explanation of why DoMA is too flawed to be defended to an argument that DoMA is unconstitutional and should be stricken. It's a subtle difference, but it gives the brief considerably more rhetorical firepower than the letter. Reading it drove home the point to me that this endorsement of heightened scrutiny is what the federal government will bring to every sexual orientation analysis for at least the next two, and hopefully six, years.

As the Veep would say, this is a big f**king deal. And although a Republican administration could and likely would reverse this position, that step would be seen as an extreme position. Boring as it might sound, the gay equality argument really has now become the new normal.

There is a but in this welcome development, though, and it's a big one. The DoJ argument is contingent on the court adopting a higher standard of review (DoJ takes no position on strict v. intermediate scrutiny - see fn. 13) than the rational basis standard. And rational basis is the standard that most courts have used to assess sexual orientation classifications (with differing results). DoJ essentially concedes that DoMA is constitutional under rational basis review. Footnote 14, page 18 reads (emphasis added):

Though the government believes that heightened scrutiny is the appropriate standard of review for Section 3 of DOMA, if this Court holds that rational basis is the appropriate standard, as the government has previously stated, a reasonable argument for the constitutionality of DOMA Section 3 can be made under that permissive standard.

 This dance-on-the-edge-of-concession language allows the Administration not to have to explicitly retract the arguments it made prior to the Holder letter, when it asserted that rational basis was the correct standard and that DoMA was constitutional.

 Golinski now has joined Gill v. OPM as a case to watch: the District Court has before it a brief filed by lawyers hired by House Republicans arguing that DoMA should be judged under the rational basis standard and upheld; the brief filed by the United States arguing that "Section 3 of DOMA fails heightened scrutiny;" and plaintiff's brief, arguing that DoMA is unconstitutional under either standard. 

Fifth Circuit hears argument en banc tomorrow on case testing interstate recognition of adoption decrees

Early last year, a panel of the Fifth US Circuit Court of Appeals ruled in Adar v. Smith that Louisiana was required to issue a new birth certificate naming two men as the parents of a child born in Louisiana, after the couple adopted the child together in New York. The Louisiana registrar of vital records refused to issue the birth certificate with both fathers' names because unmarried couples are not permitted to adopt in Louisiana.

Well, the court granted the state's motion for rehearing en banc, and tomorrow all the judges on the 5th Circuit will hear oral argument in the case. The state is making an insidious argument that threatens the validity of all second-parent adoptions across state lines. While conceding that the adoptions are valid in the states where they were issued and bind the parties who litigated in all states, Louisiana is arguing that the Full Faith and Credit Clause of the Constitution does not require it to enforce an adoption decree that is against its public policy.

The Full Faith and Credit Clause requires states to enforce judgments from the courts of other states, without regard to their own public policies. A state is not required, however, to give Full Faith and Credit to another state's laws. An adoption decree is a judgment, but Louisiana is saying that the law that allowed a gay male couple to adopt in New York is what is really at issue and it is not required to give Full Faith and Credit to that, at least when it comes to enforcement through issuing a birth certificate that could not be issued under Louisiana's laws.

It's an argument that should lose. The 10th Circuit ruled four years ago in Finstuen v. Crutcher that an Oklahoma statute refusing to recognize adoptions from other states by same-sex couples and provide new birth certificates was unconstitutional. In the pending case, Louisiana tries to distinguish that opinion, but also argues that it was just plain wrong. If the 5th Circuit sides with the state, that will set up a Circuit split that could only be resolved by the US Supreme Court.

The state's argument also reminds me of the permutations argued by Lisa Miller in the longstanding litigation over Virginia's obligation to recognize Vermont's determination that Janet Jenkins is a parent of the child they planned together and entitled to visitation or custody. While that case turned on a specific federal statute requiring recognition of custody rulings from other states, rather than on the Full Faith and Credit Clause, after Miller lost on Virginia's obligation to recognize the Vermont order she argued that the statute did not require Virginia to enforce the Vermont order. It's a distinction with no legal difference, and Miller keeps losing.

While this case involves two men, Oren Adar and Mickey Rae Smith, Lousiana claims it would not issue an amended birth certificate for any unmarried couple who adopted a child born in Louisiana, because Lousiana prohibits such adoptions. A friend of the court brief filed on behalf of two law professors, Joan Hollinger and Barbara Bennett Woodhouse, and one of the most distinguished family law practitioner in Texas, Harry Tindall, who was chair of the committee that wrote changes to the Uniform Parentage Act, argues that this is unconstitutional discrimination against children of unmarried parents. I find it no accident that the first US Supreme Court case declaring discrimination against nonmarital children unconstitutional also came from Louisiana.

Lousiana's response to this? Essentially they say that while it is unconstitutional to discriminate against a child born to an unmarried couple, it is not unconstitutional to discriminate against a child adopted by an unmarried couple. Really.

The court will release a recording of the oral argument (here), but probably not until next week.

cross posted from Beyond Straight and Gay Marriage