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75 posts categorized "Constitutional law"

January 05, 2011

The joys of originalism: "I don't even have to read the briefs"

California Lawyer just published an interview of Justice Scalia in which he declared that it was so obvious to an originalist interpretation of the Constitution that the Equal Protection Clause doesn't forbid any form of unequal treatment except that based on race that "I don't even have to read the briefs." Here's the key passage (the interviewer is Hastings Law Professor Calvin Massey):

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

The shallowness of this approach is really stunning. Jack Balkin takes it on, stating the obvious:

The central purpose of the Fourteenth Amendment was to guarantee equal citizenship and equality before the law for all citizens and for all persons. It does not simply ban discrimination based on race. The fact that the word race is not mentioned in the text (as it is in the fifteenth amendment) was quite deliberate.

Oh and BTW, Justice Scalia's riff on why it does not apply to sex discrimination is also historically inaccurate.

But let's get real - the bottom line import of this approach to constitutional interpretation (shared by many in addition to Justice Scalia) is that it eviscerates constitutional protection for marginalized and unpopular minorities, allowing (often temporary) majorities to scapegoat them for evils real and imagined and to impose legal disabilities unrelated to any legitimate, much less proportional, public goal.

Under Scalia's originalism, the only recourse for ending even the most oppressive law would be for a legislative reversal, ie, for a new majority rule. Reversing bad laws by majoritarian means is great if you can do it, but the point of a constitution as a charter of government is that some principles are structural, not merely that we the people have agreed that a few mostly 18th and 19-century practices are now off the table. Scalia would treat the Bill of Rights as an appendix of stipulated prohibitions, expandable only by constitutional amendment absent legislative action. 

An example? None better than Romer v. Evans, the decision invalidating a Colorado state constitutional amendment that would have set a higher bar for enacting anti-discrimination legislation for gay people than any other group. Other groups simply had to enact legislation (majority vote); gay people would have been required to enact another state constitutional amendment (super-majority vote to put it on the ballot and huge additional expense and effort, etc). Under the Scalia approach, no level of irrationality or animus could justify striking down Amendment 2 because the Fourteenth Amendment would not apply to sexual orientation discrimination in any situation.

Who benefits from this mode of constitutional interpretation? Well, to ask the question is truly to answer it, wouldn't you say?

Or, to paraphrase another portion of the Scalia interview in which he discusses widespread use of the "F" word (yes, this troubles him greatly):

The Scalia school of jurisprudential meanness "is used constantly, not by the criminal class but by supposedly elegant, well-educated, well-to-do people. The society I move in doesn't behave that way." 

December 17, 2010

Suppression of queer speech: The more things change...

Twenty years ago, my friend and colleague David Cole and I represented the NEA 4, gay and feminist artists who were awarded grants through the peer review process at the National Endowment for the Arts, only to lose them when the NEA Director caved in to pressure by rightwingers who attacked their art as obscene and blasphemous. Sound familiar?

Following is an essay by David in the NY Review of Books commenting on how arts censorship ca. 1990 looks from the vantage point of 2010:

On November 29, a conservative website posted an 11-second clip of ants crawling over a crucifix from a 4-minute video made by David Wojnarowicz, an artist who died of AIDS in 1992. The video, Fire in My Belly, was part of a show at the National Portrait Gallery called “Hide/Seek,” said to be the country’s first national exhibition devoted to gay and lesbian themes. Wojnarowicz made the video in 1986 and 1987, as his lover Peter Hujar was dying of AIDS, and as David himself learned that he was HIV-positive; it is an eerie meditation on life, death, violence, and nature, featuring imagery from the Day of the Dead. David later explained that he saw Jesus as a symbol of someone who willingly took on the suffering of the world. A self-appointed conservative guardian of public morality, William Donohue of the Catholic League, saw it differently, and attacked the video clip as blasphemous and demanded that the piece be taken down. The Smithsonian—which runs the National Portrait Gallery and which is funded by the US Government—promptly removed the video from the exhibition, effectively granting Donohue a “heckler’s veto.”

About twenty years ago, a gaunt, respectful, but angry David Wojnarowicz [photo left by Peter Hujar] walked into 04-Hujar_DavidWojnarowicz_jpg_240x699_q85 my office at the Center for Constitutional Rights in New York to ask what could be done about a flier that Donald Wildmon of the American Family Association had just sent out to every member of Congress, all major newspapers and TV networks, and thousands of religious ministers throughout the country. The flier featured images of gay male pornography, and claimed that they were David Wojnarowicz’s art, funded by the National Endowment for the Arts. The claim was blatantly false. David had incorporated small “found” images from gay male pornography in a series of life-sized collages devoted to the challenges of living as a gay man in the 1980s, in a community ravaged by AIDS and beset by condemnation, prejudice, and hatred. But Wildmon had reproduced only the pornographic images, stripping them from their context in the collages, and blatantly twisting the facts to further his homophobic propaganda.

We sued Wildmon, and in 1990, a federal district court ruled that he had violated David’s rights under the New York Artists Authorship Rights Act, which forbids the misrepresentation of an artist’s work. The court ordered Wildmon to cease sending out any further fliers, and to deliver a correction to everyone who received the original flier. Because David’s work had independently obtained wide recognition and was increasing in value—art critic Dan Cameron has called him “one of the most potent voices of his generation”—we were unable to demonstrate that the controversy had caused him financial damages. As a result, the court ordered Wildmon to pay David one dollar in nominal damages. David promptly incorporated the dollar in an artwork inspired by the controversy. Two years later, David died.

Around the same time, the Corcoran closed a show of Robert Mapplethorpe’s photographs because of pressure from social conservatives, and the NEA revoked funding to four performance artists—Karen Finley, John Fleck, Holly Hughes, and Tim Miller—after conservative columnist Robert Novak blasted the endowment for using public money to fund gay and sexually-explicit artwork. We sued the NEA over its denial of funding, and after a court rejected its motion to dismiss the case, the NEA agreed to pay the artists the amount of their grants.

In one sense, David Wojnarowicz and the NEA Four won. The fact that the National Portrait Gallery has now dedicated a major exhibition focused on sexual difference and marginalization in American portraiture is also surely a victory. We live in more tolerant times...

But the battle is far from over...And from the standpoint of publicly funded art, the censors have won. Congress’s response to the “culture wars” was to require the NEA to “take into consideration general standards of decency and respect for the diverse beliefs and values of the American public” in making arts funding decisions. The Supreme Court upheld that requirement. Public arts institutions learned that political controversy could jeopardize their financial support, and publicly funded arts have never been the same. When the National Portrait Gallery put on “Hide/Seek,” it made sure to finance it only with private donations, undoubtedly recognizing that it might stir protest. The show’s private funding was insufficient, however, to steel the Smithsonian when it faced criticism. (And now one of the largest private funders, the Andy Warhol Foundation, has threatened to cut off its financial support because the museum caved to pressure).

But while the recent censorship of Wojnarowicz’s work recalls what happened in the early 1990s, the differences are also instructive. When the Corcoran closed the Mapplethorpe show and the NEA revoked Karen Finley’s funding, widespread public outcry followed. The Smithsonian’s decision to remove Wojnarowicz’s video, by contrast, has attracted comparatively little attention. We have come to expect timidity in public arts institutions. In some sense, the surprise is not that the Smithsonian removed the video, but that it put on “Hide/Seek” in the first place.

The muted public response to the current controversy points in two different directions. On the one hand, homosexual self-expression is substantially more accepted today than it was twenty years ago. David would, I think, be surprised and gratified by the changes wrought in American culture... On the other hand, the fundamentalist censorial strain remains a profound force in American society, reflected today in the populist and often intolerant undertones of the religious right and the Tea Party. And one thing has remained a disappointing constant—public institutions’ willingness to cave on issues of public controversy. Like so many other wars, the culture wars of the 1980s have left their traces on America’s character. 

December 06, 2010

Slugfest on gay marriage (and standing) in 9th Circuit

The long-awaited oral argument in Perry v. Schwarzenegger just concluded before the Ninth Circuit, and we all now begin what I expect will become an even longer wait for a decision.  Who won? To my hearing (via radio), it's hard to imagine that any judge's inclination on the merits of whether Prop 8 is constitutional was altered by the arguments they heard. The argument may have had a bigger impact on how the court will rule (or defer ruling) on standing than on the judges' view of the merits.

Judges Reinhardt, Hawkins and Smith peppered both sides with sharp questions, and both sides acquitted themselves reasonably well. With a caveat that I'm writing without time for reflection, here are the main points that the argument brought to light:

Most significant to the standing point, which was argued first, Judge Reinhardt strongly suggested that he was inclined to certify a question to the California Supreme Court to help resolve whether the proponents of Prop 8 had standing to appeal Judge Walker's order. That means that the Ninth Circuit will suspend its consideration of the issues until the California Supreme Court answers the question of whether, under state law, the proponents of a ballot initiative would have standing to defend it in a context in which state officials decline to do so. (Generally, private citizens lack standing to participate as a defendant in a challenge to a law, but here both the governor and AG opted not to appeal Walker's decision.) If I had to bet on what the next stage in this saga will be, I would bet that this part of the case will be referred to the state supreme court. (This is not unusual when a federal court has to resolve the meaning of a state law in order to get to the federal question in the case.)

I (as a procedure nerd) found it fascinating when the plaintiffs' lawyers acknowledged that Judge Walker's injunction would apply to only the two county clerks named as defendants, leaving all other county clerks free to deny marriage licenses to same-sex couples. The judges seemed surprised to hear this and skeptical about the plaintiffs' further point that Judge Walker's injunction would be enforced by the governor and attorney general going into state court to get an additional order compelling any dissident clerks to abide by their interpretation of state law. (This exchange also suggested another way that the outcome of the election could have altered the status of marriage rights in CA: even if the injunction went into effect, it could have been torpedoed by a governor and attorney general opposed to same-sex marriage and unwilling to seek an order forcing any county clerks opposed to the injunction to obey it.)

On the merits, the most important exchanges related to whether the court could determine the constitutionality of only Prop 8, that is, without reaching the question of whether bars to same-sex marriage in other states would be unconstitutional. Asked the direct question of whether the court could avoid ruling as to other states, Ted Olson said yes, although he added that the decision he wanted would be on broader grounds. If I had to bet on the merits, my money would be on a decision affirming the district court that applies only to California, and based on reasoning so limited to California that it would not be binding on any other state, even the other states within the Ninth Circuit. In my opinion, that would be the best possible outcome in this case, since it would make it possible that the Supreme Court would decline to review it at all.

In questioning Charles Cooper, who represented the Prop 8 proponents, Judges Reinhardt and Hawkins both alluded to the equal protection standard used by Justice O'Connor in her concurrence in Lawrence: a rational basis with bite standard, that subjects laws to more searching scrutiny when there are indications that the laws were motivated by bias. If the Ninth Circuit panel ultimately adopts this standard in Perry, it would be the first appellate court to follow O'Connor's lead, but I think many others could follow. The O'Connor concurrence was, in effect, an explanation in more concrete terms of the Court's rather porous decision in Romer. The panel's decision on the merits - if and when the merits are reached - will be an important interpretation of the power of Romer, which - doctrinally - will also be the likely focus of the First Circuit's opinion in Gill v. OPM. (Gill has not yet been briefed or argued in the Court of Appeals.)

You can watch the video and read an uncorrected transcript here.

November 18, 2010

Christian Legal Society just can't beat Hastings' defense

In Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010), the Supreme Court ruled that Hastings College of Law acted constitutionally in requiring that officially recognized student organizations abide by an "all comers policy," under which any Hastings student could join any student organization. The CLS lawyers thought they had a sure winner in that case, seeing it as their ticket to expansion of Boy Scouts v. Dale into a broader principle allowing for the exclusion of openly gay members from a variety of groups. Many CLS supporters were shocked by their 5-4 loss in the Supreme Court.

On remand, CLS argued that the all comers policy was a sham, i.e., that it was applied differentially, in a way that discriminated against CLS. On Wednesday, the Ninth Circuit ruled in CLS v Wu that this, too, was not a viable claim. From SCOTUSblog:

...The Ninth Circuit Court ... said it could not find in the record enough to show that the group’s chapter at Hastings College of Law in San Francisco had actually made the argument it now wanted to press.

The CLS chapter’s lawsuit in federal court contended that the College of Law discriminates against it by denying it campus privileges because it will allow only students who share its religious views to take part in its activities. ... [T]he Ninth Circuit had upheld the school’s so-called “nondiscrimination policy” on the premise that it was an “all-comers policy” that was enforced neutrally.  In a 5-4 ruling June 28, the Court agreed.

Although the CLS has contended that the school’s participation policy was unevenly enforced, targeting only those groups that organize around religious beliefs or that disapprove of homosexuality, the Court majority said that argument “flatly contradicts” an agreement among the parties in a lower court stipulation that the policy actually was an “all-comers” participation mandate that did not depend upon a particular group’s status or beliefs.  The “all-comers” policy, viewed that way, was valid, the Court concluded.

The chapter, however, also had a second strand in its discrimination argument — that the policy, even if an “all-comers” approach as written, actually was enforced in a discriminatory way in practice.  The supposed neutrality of the policy, CLS had contended before the Justices, was a mere pretext for discrimination against religious groups.  The Supreme Court, however, found that no lower court had ruled on that argument, “and this Court is not the proper forum to air the issue in the first instance.”   It sent that question back to the Circuit Court to rule on it “if, and to the extent, it is preserved.”

On Wednesday, the Circuit Court reacted.  Borrowing a phrase used by other courts in similar circumstances, the Circuit Court panel said that “Judges are not like pigs, hunting for truffles buried in briefs.”  Though it said it had, nevertheless, engaged in an “assiduous digging” in the legal papers filed by CLS’s lawyers, it found that the discriminatory enforcement argument had not actually been put forth.  “We’ve found nothing reasonably supporting its existence,” the panel said.

In neither the CLS opening brief in the Circuit Court, nor in its oral argument there, the panel wrote, did this version of the chapter’s discrimination argument appear in a clear enough form to put it before the judges.  While it conceded that “judges sometimes overlook issues fairly presented by the parties,” the Circuit Court said, “that’s not what happened here.  CLS simply failed to raise this issue the first time around, and it is not entitled to ‘a second bite of the appellate apple.’ ”

That ruling apparently put an end to the chapter’s challenge at this stage.  The Circuit Court, however, noted that, if in the future the law school applied its policy in a way that was discriminatory, “CLS may be able to file a new lawsuit.”  But the issue can’t be addressed in this litigation, it concluded, thus formally denying the chapter’s motion to send the case back to District Court  to consider the alternative argument.

November 09, 2010

ACLU files DoMA challenge with new twist

Today, in addition to the Pedersen case being brought by GLAD, the ACLU LGBT Rights Project Edie & Thea: A Very Long Engagement Posterwill file a complaint challenging the constitutionality of DoMA in federal court in New York City. New York, like Connecticut, is in the Second Circuit, so both cases will eventually reach the same Court of Appeals. Also like the GLAD cases, the legal claims are founded in the Equal Protection Clause.

What is new and different about Windsor v. United States is that it is the first case to challenge the estate tax, and it seeks relief on behalf of a person who does not live in a state that performs same-sex marriages. Plaintiff Edith Windsor married her now deceased partner Thea Spyer in Canada in 2007 and the two lived in New York, which recognized their marriage. After Spyer died in 2009, Windsor had to pay a huge amount in estate tax - $350,000 - which she would not have had to pay if the federal government had recognized the marriage, as New York state does. She is now seeking to recover the payment, which is the largest amount of money at stake in any of the DoMA challenges. 

The state attorney generals in Maryland and Rhode Island have issued formal opinions (AGOs) declaring that those states would, like New York, recognize same-sex marriages validly performed elsewhere, even though the state doesn't treat gay marriages performed within its borders as legal. So far as I know, no litigation has been based on or tested the Maryland and RI AGOs.

A film about the Windsor-Spyer relationship - "Edie and Thea: A Very Long Engagement" -  won the prize for best documentary at the 2009 Hamburg Lesbian and Gay Film Festival. The NY Times featured their marriage in its wedding announcements.

November 08, 2010

GLAD files another challenge to DoMA, this time in 2d Circuit

Tomorrow lawyers for GLAD will file a complaint in federal district court in Connecticut challenging the constitutionality of the Defense of Marriage Act (DoMA), the law that prohibits recognition of same-sex marriages under any federal program. The new case parallels Gill v. OPM, the DoMA challenge that GLAD won in federal court in Massachusetts last summer that is now in the early stages of appeal before the First Circuit.

The second case, Pedersen v. OPM, is being brought on behalf of same-sex couples and one widower who live in Connecticut, New Hampshire and Vermont. Because cases brought in federal court in Connecticut are appealed to the Second Circuit, this case will insure that two separate appellate courts will rule on the constitutionality of DoMA. If the two courts reach different results, the chances of the Supreme Court granting review will substantially increase. There is little likelihood that the Supreme Court will accept the Gill case if the government wins, but it's a virtual certainty if plaintiffs win.  If plaintiffs lose in Gill, however, the Pedersen case will give them a second shot at winning a favorable ruling and also create a circuit split, the most common reason for the Supreme Court agreeing to decide a case. The third DoMA challenge - Windsor v. U.S., which is being brought in New York - also creates this possibility.

As in Gill, the plaintiffs in Pedersen seek a declaratory judgment that DoMA is unconstitutional and an injunction barring its enforcement. The complaint alleges that Congress had no legitimate purpose in enacting DoMA.

Congress has yet to identify a reason why gay and lesbian individuals who have met their obligations as taxpaying citizens and who are married to someone of the same sex must be denied protections available to persons who are married to someone of a different sex.  Singling out same-sex couples who are married among all married persons is simply an expression of the intent to discriminate against gay people.

At root, DOMA, 1 U.S.C. § 7, is motivated by disapproval of gay men and lesbians and their relationships, an illegitimate federal interest.

Also like Gill, the legal claims in Pedersen are founded on the Equal Protection Clause. 

Although the Prop 8 litigation has gotten much more attention, mostly because of the drama of the 2008 election in which Prop 8 was adopted, followed by the drama of the trial before Judge Walker, the Gill/Pedersen litigation - together with Windsor - is more important. The plaintiffs have a better chance of winning before the Supreme Court in the DoMA challenge and, paradoxically, if they do win, the ramifications could be much more significant. The latter point will depend on whether the Prop 8 case is decided on standing rather than on the merits or on grounds that apply only to California. In either of those situations, the direct precedent will be limited to one (albeit incredibly important) state. 

If the Supreme Court invalidates DoMA, however, same-sex married couples would gain access to federal benefits and programs, which generally speaking are far more important than state law benefits. Moreover, assuming that their marriage was legal in the state where it was performed, they would be eligible for federal benefits no matter where in the U.S. they currently lived. Their local state of residence might deny them recognition for state law purposes, but the longstanding previous policy that recognition for federal law purposes depended on whether the marriage was legal where performed (the place of celebration rule) would be reinstated. 

Many gay couples who would choose to marry see little point in doing so when it would not change their status under federal law.  Eliminating DoMA would transform the legal landscape.


November 02, 2010

Split 9th Circuit panel stays injunction against DADT

After taking almost two weeks to decide and with one judge dissenting, a panel of Ninth Circuit Court of Appeals judges has granted a stay pending appeal of the injunction against the Don't Ask Don't Tell policy issued in the Log Cabin Republicans case. Although the policy can again be enforced, the court's actions sent yet another signal that legal support for it is dwindling. Normally it would take the court about a minute to stop an injunction against a federal statute that previous courts have upheld multiple times. Recall the same court's reaction to a similar motion for a stay of Judge Walker's ruling against Prop 8 - the stay was granted in less than a day.

The two judges who formed the majority wrote that "there are three reasons that persuade us to grant a stay pending appeal."

The reasons included that "Acts of Congress are presumptively constitutional," that "'judicial deference . . . is at its apogee' when Congress legislates under its authority to raise and support armies" and that "the district court’s analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal" [citing Cook v. Gates in the 1st Circuit; Able v. U.S. in the 2d Circuit; Richenberg v. Perry in the 8th Circuit; and Thomasson v. Perry in the 4th Cir.].

We ... conclude that the public interest in ensuring orderly change of this magnitude in the military - if that is what is to happen - strongly militates in favor of a stay. Furthermore, if the administration is successful in persuading Congress to eliminate [DADT], this case and controversy will become moot.

In dissenting, Judge William Fletcher wrote that he "would allow the district court's order to continue in effect insofar as it enjoins the Defendants from actually discharging anyone from the military [under DADT] during the pendency of the appeal." Fletcher would have let the military officially continue the DADT policy (as to recruiting, for example), but would have halted discharges. Judge Fletcher also stated that he would have granted oral argument on the stay motion, but the court rules require that at least two judges request oral argument on a motion before one will be scheduled.

Arguably, the Gates memorandum freezing DADT discharges unless they are approved by a new civilian-dominated process achieves what Judge Fletcher would have ordered.

In a separate scheduling order, the court set deadlines for the full briefing of the case (no.10-56634). The government will file its appeal brief by Monday, Jan. 24, 2011. Attorneys for LCR are required to file their response by Tuesday, Feb. 22, and the government's reply is required to be filed by 14 days following the LCR filing. 

With luck, the policy will be dead before the first brief is due.

October 27, 2010

Prop 8 challengers' briefs offer 9th Circuit many paths to yes

All the plaintiffs' side briefs - both the parties and the amici - have now been filed in Perry v. Schwarzenegger, and it's an impressive bunch. There are two parties' briefs: the Olson/Boies brief for the individual plaintiffs and the brief for the City and County of San Francisco. (San Francisco is also a plaintiff.) In addition there are more than 20 amicus briefs (posted here) from a variety of professional, academic, religious, civil rights and medical organizations.

The next step is that Proponents of Prop 8 will file a reply brief on November 1, and then oral argument will be heard December 6. There is no deadline for when the court must rule after it hears oral argument.

The individual plaintiffs' brief is the core document for the challengers; it is both excellent and not so interesting at the same time. The reason that it lacks excitement is that it does its job extremely well, which is to defend the powerful opinion below on two main points: that the well-established principle that marriage is a fundamental right should apply to same-sex marriages and that the only plausible purpose of Prop 8 was to render gay Californians unequal to other state citizens, a purpose that subverts the very core of the Equal Protection guarantee. (Think Romer.) The fireworks in this case are in Judge Walker's opinion. Also, before reaching the merits, this brief highlights another important point: the argument that the Proponents lack standing to appeal.

I found the San Francisco brief somewhat more interesting because its role apparently is to put before the court an argument not focused on below: that "Prop 8 is not rationally related to legitimate government interests in light of California's particular constitutional and statutory guarantees." (emphasis added) Most prominent is the assertion that the Proponents' main argument in justification of Prop 8 - that it promotes "responsible procreation" - is exactly wrong in California because Prop 8 has zero impact on the state's parenting-related law.

California law distinguishes between marriage and parenting, treats lesbian and gay parents identically to heterosexual parents, recognizes that irresponsible procreation and childrearing are not limited to situations where children are conceived accidentally, and gives no preference to parents of different genders.  As a constitutional amendment, Proposition 8 could have changed any or all of these laws.  But it did not.  Having left unchanged the state constitutional provisions and laws treating same-sex parents the same as opposite-sex parents, Proposition 8 cannot plausibly be construed as a measure designed to encourage opposite-sex parenting over same-sex parenting. 

Clever argument. I doubt that the Court of Appeals will hang its reasoning entirely on this hook, but what is between the lines in this brief is an invitation to the court to rule in a way that is limited to only one state, and does not implicate 44 other junior DoMAs.  A narrow ruling would be much less vulnerable if the case reaches the Supreme Court.

October 14, 2010

The most important amicus briefs supporting Prop 8

I wouldn't be surprised if the appeal in Perry v. Schwarzenegger breaks a record for the number of amicus briefs filed in a Court of Appeals.  Those in support of Prop 8 are in, and there will be a gajillion more in support of the plaintiffs when that side's turn comes next month. It is doubtful that any of the judges will read more than a handful of them, and I would bet that not even their clerks will be tasked with seriously reading all of them. Most are beyond predictable.

I decided to pick from those filed so far the ones that I thought would most likely command attention and be read. I found three, each with a clear theme for its arguments: federalism, social science and moral philosophy, respectively.

The federalism amicus is the brief filed by the Attorneys General of 13 states. There is nothing remarkable about its content; I think its true message to the Ninth Circuit is - -  Back off, 45 states have laws banning same-sex marriage and 13 of us care enough about the issue to sign on to this brief. If the court upholds Judge Walker's decision, this brief will serve as a caution that the ruling should be limited to California.

I have no doubt that plaintiffs' lawyers are lining up an AGs brief for that side as well, but since they can't win by playing the numbers game, I would bet that theirs will be a the-sky-hasn't-fallen brief by the jurisdictions that have enacted equal marriage laws. Since the Prop 8 proponents have made a big deal out of arguing that all kinds of unknowable crazy things might follow if gay couples can marry, I have a hunch that the Commonwealth of Massachusetts may file an amicus saying that its experience for the last 7 years has been, well, kinda boring.

The social science brief is from the American College of Pediatricians. This legitimate sounding group is actually a breakaway organization formed by a small number of conservative pediatricians when the American Academy of Pediatrics endorsed second-parent adoptions. In its own words,

Of particular importance to the founders were (as it is today) the sanctity of human life from conception to natural death and the importance of the fundamental mother-father family (female-male) unit in the rearing of children. 

The ACP brief does not own up to this ideological provenance, however, and instead asserts that the "collective membership of the College has observed firsthand the effect of varied and changing family structures on the wellbeing of pediatric patients, and it is also familiar with the significant academic analysis and sociological data that augment understanding of these issues." Total intellectual dishonesty. The remainder of the brief presents studies that support, or appear to support, the proposition that mother-father households are best for children.

Will this brief be effective?  A good amicus on the plaintiffs' side can both call out ACP for its bias and refute their arguments by presenting the results of other and more relevant studies, as well as pointing to the flaws in some of what ACP calls social science.  Nonetheless, the ACP brief is the kind of amicus that gives a judge who wants to reverse the District Court enough noise to support a rational basis argument.

Lastly, Robert George, a professor of jurisprudence at Princeton and the intellectual guru of anti-gay marriage supporters, has filed a brief arguing that the Walker opinion incorrectly characterized Prop 8 as reflecting sectarian religious views. Instead, George asserts,

[T]he law regarding marriage - a social institution, recognized and regulated for public purposes - involves the kinds of value judgments about the common good that can be found throughout our law... and that can be ascertained without appeal to religious authority...

One might even think that...same-sex relationships are morally valuable and good but different - incapable as such of realizing the specific purposes or ends of the institution of marriage. This would be a value judgment - a conclusion about the structure of a public good - but it would state nothing about the morality of sexual conduct between same-sex partners.

The George brief is well-written, but ultimately simply restates the natural law argument that same-sex partnerships could never constitute marriage. Its job is to persuade the Court of Appeals that reliance on natural law is not the same thing as the forced adoption of religious belief through the power of the state. Again, it may give a hook to conservative judges, but I doubt it will change any minds.

September 27, 2010

Log Cabin fires back at DoJ over scope of injunction against DADT

Imagine that you are a Justice Department lawyer heading to work this morning, about to start a new week.  Only problem is that your job is to direct the government's legal strategy for defending Don't Ask Don't Tell. And given the three weeks you've just had, you're feeling like a chewed pencil.

First, you endured a week-long trial in federal court in Riverside CA, where lawyers representing Log Cabin Republicans made mincemeat of the arguments for retaining the policy. No surprise - the judge ruled against you. Then the LCR lawyers sought broad injunctive relief against your client, the United States, to prohibit any discharges under DADT anywhere in the world.

You responded with the best brief you could come up with, arguing that one federal judge couldn't order the entire federal government to do something, just because the entire federal government was before her as the defendant. But on Friday, the plaintiffs' lawyers filed their response.This new brief argued that the standard for the proper scope of injunctive relief was whatever is necessary to accord a full remedy to the prevailing party. It doesn't look good.

And then, of course, during the same time period, you endured yet another week-long trial in federal court in Tacoma, Washington, and lost again.  This time it was to lawyers for former Major Margaret Witt. You tried to weasel out of the obvious idiocy of forcing an ace flight nurse out of the Air Force by forcing her to admit that she had become involved with a married woman.  But, as he was ruling against you, the judge pointed out that she had been discharged because she was gay, not because the woman she slept with was married. That judge ordered you to process the plaintiff for reinstatement as soon as she passed re-entry tests.

Could things get worse? You betcha. You're going to have to brief the politicals on all the gory details, and they'll probably drag you along when they meet with White House Counsel's office to decide what to do next. How long can you stave off Judge Phillips' order in the Log Cabin Republicans case? Given how bad we looked at trial, do we even want to appeal the Witt case? If we don't appeal Witt, though, have we in effect conceded the whole ball game? Will a lame duck session pull our butts out of the fire?  This is really no fun.

Maybe criminal prosecution wouldn't be so bad after all...

September 24, 2010

Federal judge finds discharge of Margaret Witt was unconstitutional, orders reinstatement

U.S. District Judge Ronald Leighton ruled today that the Air Force discharge of Major Margaret Witt under the DADT policy violated her Due Process rights and harmed, rather than helped, unit cohesion and morale. Judge Leighton ordered the Air Force to reinstate Major Witt "as soon as practicable."

The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important governmental interest in advancing unit morale and cohesion. To the contrary, the actions taken against Major Witt had the opposite effect...

...Major Margaret Witt was an exemplary officer...Her loss within the squadron resulted in a diminution of the unit's ability to carry out its mission. Good flight nurses are hard to find...

The men and women of the United States military have over the years demonstrated the ability to accept diverse peoples into their ranks and to treat them with the respect necessary to accomplish the mission, whatever that mission might be...The reinstatement of Major Margaret Witt will not erode the proficiency of the United States military...

Judge Leighton's reasoning, reiterated in findings of fact and conclusions of law, poses the latest in a series of challenges for the Obama administration as it simultaneously defends the DADT policy in court and seeks its repeal in Congress. When the Ninth Circuit ruled last year in Witt that the government would be forced to justify DADT discharges on an individualized basis, the Justice Department could have sought review of that decision in the Supreme Court. Instead, then Solicitor General Elena Kagan opted not to seek certiorari, but to send government lawyers back to the trial court in an effort to satisfy the Ninth Circuit's requirement that adverse effects on unit cohesion be proven.

Now that the trial has concluded, the Justice Department faces a much more difficult question about whether to appeal. DoJ could elect to comply with Judge Leighton's order and process Witt for reinstatement - reinstating one soldier is not a big deal.  On the other hand, the Ninth Circuit rule that each challenged discharge be justified could so gum up the military's system that it would come close to shutting down DADT. The justification rule applies only in the geographical area covered by the Ninth Circuit, but that includes California, Arizona, Washington, Oregon, Nevada, Hawaii and Alaska -- lots of military bases in those states.

If Justice does appeal this ruling, which the Ninth Circuit is almost certain to affirm, it will also have a much more difficult time of getting a stay of the order until the appeal is completed. Unlike Judge Phillips' ruling in Log Cabin Republicans v. U.S., which runs counter to Ninth Circuit precedent, the Witt ruling is consistent with circuit precedent.

Congrats to the ACLU for a terrific job of litigating this case - 

Justice Dept opposes nationwide injunction against DADT, signals that it will appeal Log Cabin Republicans case

The Justice Department filed its objections yesterday to the proposed nationwide injunction against enforcement of the Don't Ask Don't Tell policy that is being sought by lawyers for the Log Cabin Republicans (LCR). LCR won a District Court ruling two weeks ago that the policy is unconstitutional. It seems apparent from the objections that Justice plans to appeal the underlying decision. If there was any doubt, the White House issued a statement declaring that the President would "continue to [seek] a legislative repeal" of the policy. Whatever form of injunction is issued, the Justice Department will ask the Ninth Circuit for a stay of the order pending appeal.

The DoJ brief argues that it would be inappropriate for a single trial court judge to order an end to the policy which has been upheld by other federal courts several times. One of the courts that has declined to rule that it is facially unconstitutional is the Ninth Circuit, in which Judge Phillips sits. Ironically, a ruling is expected tomorrow in Witt v. Air Force, which is on remand before a federal district judge in Tacoma, WA. In Witt, the Ninth Circuit did not find the DADT policy unconstitutional on its face, but ruled that the government had to produce evidence as to each challenged discharge that retention of the gay service member harmed the efficacy of the military.

The Justice Department argued that the scope of an injunction in Log Cabin Republicans v. U.S. should be limited to "bona fide members" of plaintiff LCR. Wonder if LCR will use that as a recruiting tool? Jon Davidson points out that the feds must have thought of that, too, since the brief specifies that only those who are "current LCR members" should be covered by the injunction.

Should it ever take effect, DoJ's approach would lead, at least theoretically, to a goofy system. Person A has been told that she would be discharged under DADT, but wait! -- she has a defense.  She became a Log Cabin Republican before a certain date. Stupid, stupid, stupid. 

September 22, 2010

Witt trial judge promises ruling by Friday, doesn't buy Justice Department's arguments

The trial in Witt v. Air Force ended yesterday, a day earlier than expected. Judge Ronald Leighton indicated that he would need little time to decide the case and felt that he had little choice but to rule for Margaret Witt. From the AP:

U.S. District Judge Ronald B. Leighton said he would issue a ruling Friday in the closely watched case of former Maj. Margaret Witt. As her trial closed, he expressed strong doubts about government arguments seeking to have her dismissal upheld...

In 2006, Leighton rejected Witt's claims that the Air Force violated her rights when it fired her under the "don't ask, don't tell" law. An appeals court panel overruled him two years later and said the military can't fire people for being gay unless it shows their dismissal was necessary to further military goals. The ruling left it to Leighton to determine whether her firing met that standard. At the end of a six-day trial, he suggested the ruling tied his hands...

Her attorneys, led by the American Civil Liberties Union of Washington, [introduced evidence that] Witt was well respected and liked by her colleagues, that her sexuality never caused problems in the unit, and that her firing actually hurt military goals such as morale, unit cohesion and troop readiness...Lawyers for the Air Force said such evidence was irrelevant. Military personnel decisions can't be run by unit referendum, they said.

Instead, Justice Department lawyer Peter Phipps asked the judge to look back at the reasons Congress cited for passing "don't ask," including the possibility that gay service members could have limited privacy during deployments, and determine whether those factors were relevant to Witt's case.

Leighton responded that such an approach would provide a nearly meaningless constitutional analysis, "a far cry" from the heightened scrutiny called for by the 9th Circuit's decision.

He said he considered two other arguments from the government unpersuasive: that Witt posed a threat to unit cohesion and integrity because she once committed adultery, and that Witt shouldn't be reinstated because the military has an overriding need for uniformity in its personnel policies. Refusing to reinstate Witt for the latter reason would require him to overrule the 9th Circuit, Leighton said.


Ninth Circuit: Two Oregon laws barring minors' access to sexually explicit materials are unconstitutional

The Ninth Circuit has ruled in Powell's Books v. Kroger that two Oregon laws that prohibit making sexually explicit literature available to minors violate the Constitution because they are too broad and infringe on free-speech rights.

The laws were intended to prevent abusers from providing sexually arousing material to children in an effort to lower a child's resistance to engaging in sexual conduct. The first, intended to shield children under 13 from all sexually explicit content, "reached a substantial amount of material that does not appeal to the prurient interest of a child under 13, but merely appeals to regular sexual interest," according to the Court of Appeals. The second law, restricting sexual references available to those under 18, "criminalizes fiction no more tawdry than a romance novel." 

[S]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.

Writing for the court, Judge Margaret McKeown found that "In their current form, the statutes sweep up a host of material entitled to constitutional protection, ranging from standard sexual education materials to novels for children and young adults by Judy Blume."

September 21, 2010

Witt trial wraps up as plaintiff testifies, Justice Department argues "adultery"


Former Air Force Major Margaret Witt testified Monday in the case she brought seeking reinstatement after her discharge under the DADT policy. The case is important because it established the principle that the government has to demonstrate - on an individualized basis - that each such discharge is actually necessary to preserve unit cohesion and morale. Several days of testimony last week from former colleagues in her unit established that her presence created no morale problems. (More background here.)

As expected from their trial brief, Justice Department lawyers sought to discredit Witt because she became involved with a married woman. The married woman was a civilian, as was her husband. A 2002 Executive Order (EO 13262) limits discharges based on heterosexual adultery to situations in which there is a negative effect on the unit or a misuse of command authority.

From the Seattle Post-Intelligencer:

A decorated Air Force Reserve flight nurse discharged for being gay took the witness stand at her federal trial Monday and told the judge it "kills me" not to be able to care for wounded soldiers while the country is at war. Former Maj. Margaret Witt has sued the Air Force in hopes of being reinstated. No one in her unit or any of her patients ever expressed concern about her sexual orientation, she told the judge.

"It's what I've spent over half my life training to do," Witt testified, her voice breaking. "I miss being able to be the one that that soldier looks at and I can do something for him. I'm not complete, and it kills me to not be there."...

Witt joined the Air Force in 1987 and later became a flight nurse, helping to care for and evacuate soldiers wounded in Afghanistan. She was suspended in 2004 when the Air Force investigated her for violating "don't ask, don't tell." She was discharged three years later, while just short of becoming eligible for a full pension.

Her lawsuit challenged the constitutionality of "don't ask, don't tell." In 2008, a three-judge panel of the 9th U.S. Circuit Court of Appeals considering the case held that the military couldn't discharge someone for being gay unless it demonstrated the firing was necessary to further military goals.

The case returned to U.S. District Court in Tacoma, where Judge Ronald B. Leighton must determine whether Witt's firing met that standard. Leighton heard testimony last week from several of Witt's former colleagues, who said they didn't care about her orientation and that her firing actually hurt morale in their squadron, based at what is now Joint Base Lewis-McChord near Tacoma...

In pointed cross-examination, Justice Department lawyer Peter Phipps noted Monday that Witt had engaged in an adulterous relationship with a married civilian woman in 2003. The woman, now divorced, is still Witt's partner, but the Air Force argues that Witt's disregard for policy in committing adultery set a bad example for others in the unit and justifies her dismissal.

"You agree that adultery is not consistent with high standards of integrity, correct?" Phipps asked. "Yes," Witt responded.

The government also argues that Witt acknowledged being homosexual to some of her close friends in the unit, forcing them to choose between loyalty to her and to Air Force policy. Her firing eliminated a risk to unit cohesion, a legitimate military goal, DOJ lawyers say.

Witt's attorneys insist that the government has no evidence proving Witt's firing was necessary to further any military goal. In fact, they argue, there's no evidence that allowing gays to serve openly would hurt unit cohesion, or even any evidence that troops perform better if they get along socially.

Elizabeth Kier, a University of Washington associate professor of political science who has studied the issue, followed Witt on the stand Monday. She summarized research in the field: "There is no significant positive relationship between social cohesion and performance, and high levels of social cohesion can undermine military effectiveness."

Closing arguments are expected by Wednesday. It is not clear when Leighton will rule.