hunter of justice

DoMA heads to Supreme Court...minus Kagan

The unanimity of the First Circuit's ruling that DoMA is unconstitutional virtually insures that a cert petition to the Supreme Court will be filed in the next 90 days, followed by an order granting certiorari in early October, followed by oral argument next winter, followed by a decision by June 2013. There's just one big problem looming for lgbt rights advocates: Justice Kagan will almost certainly recuse herself.

The Court of Appeals decision in Commonwealth of Mass. v U.S. Dep't of Health and Human Services [2012 WL 1948017] broke no new ground in its Equal Protection analysis. Indeed, it arguably ceded ground by specifically holding that DoMA would be valid under a traditional rational basis test. The court found it unconstitutional because "closer than usual scrutiny" was required, which in turn was triggered because the penalized group was  "historically disadanvated or unpopular and the statutory justification seemed thin, unsupported or impermissible." (More detailed analysis of the opinion itself coming in a later post.)

Whatever the First Circuit's reasoning - and you can be sure the Supreme Court will feel no need to conform its analysis to the approach of any lower court - the most important aspect of this decision is that it sets up Supreme Court review without further delay. There are only six judges on the First Circuit; a unanimous decision by three of them means that there is no chance that a majority would vote to accept a petition for rehearing en banc. 

So it's on to the Supremes. And I am quite happy that this case (originally called "Gill", but now consolidated with the state's challenge to DoMA, so Massachusetts has become the lead plaintiff) will get there before Perry v. Brown, which might lead to a ruling on the constitutionality of all state laws banning same-sex marriage. I do not see this Court, with these nine Justices, issuing such a decision.

This particular lawsuit challenging DoMA does have one major drawback as a Supreme Court vehicle, though. When Justice Kagan was Solicitor General, she was almost certainly involved in Justice Department decision-making about whether and how it should defend DoMA, a federal law. Assuming that she was, she will have to recuse herself from any participation in Massachusetts v. HHS when it reaches the Supreme Court (as I noted almost two years ago and as she did in a DADT case).

Her recusal will mean that the best case scenario is probably a 4-4 tie in the Supreme Court, which would leave the First Circuit decision in place. For that tie to happen, though, Justice Kennedy has to join the three progressives on the Court (Ginsburg, Breyer, Sotomayer) in finding DoMA unconstitutional. If he does, DoMA's fate is sealed, since I would be willing to bet something precious that Justice Kagan will vote to strike down DoMA in a subsequent case from which she is not recused. If on the other hand Justice Kennedy votes to uphold DoMA, the game is over.

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.

Supreme Court upholds ministerial exception to anti-discrimination laws

In a unanimous but cabined decision, the Supreme Court today in Hosanna Tabor Lutheran Church and School v. EEOC upheld what is known as the "ministerial exception" to laws against employment discrimination. The case involved a teacher in a religious school, the bulk of whose time was spent in secular instruction. The Court identified several factors for determining whether an employee qualified as a "minister," but eschewed any "rigid test." Nonetheless, it reversed a Court of Appeals decision from the Sixth Circuit which had found that the individual did not qualify for the exception.

From SCOTUSblog:

Closing the courthouse door much of the way, but not completely, to workplace bias lawsuits by church employees who act as ministers to their denominations, the Supreme Court on Wednesday unanimously gave its blessing — for the first time — to a “ministerial exception” to federal, state and local laws against virtually all forms of discrimination on the job.  The Court’s ruling, which only Justice Clarence Thomas said did not go far enough, did not order courts to throw out all such lawsuits as beyond their jurisdiction, but it left them with only a narrow inquiry before the likely order of dismissal would come down.  As soon as the denomination makes its point that it counts an employee as a “minister,” within its internal definition, that is probably the end of the case.  And the employee could be anyone from the congregational leader, on down to any worker considered to be advancing the religious mission.

The main opinion written by Chief Justice John G. Roberts, ... dismissed as an “extreme position” the plea of EEOC to limit any “ministerial exception” solely to workers who perform “exclusively religious functions.”  While the opinion said the Court was “reluctant to adopt a rigid formula for deciding when an employee qualifies as a minister,” the opinion went on to describe some key factors that courts are to take into account in judging whether a given denomination has proved its claim to the exception.

In this particular case, involving a parochial school teacher in Redford, Mich., who spent most of her work time on non-religious duties, the Court found these to be decisive factors: that she was formally commissioned as a “minister” in the Lutheran denomination’s internal practices, that she did perform “important religious functions” in addition to her teaching of lay subjects in the classroom, and that her non-religious duties, however extensive, did not make a difference.   The Chief Justice said the Court was unsure whether any church employee would ever do exclusively religious chores.

...The Roberts opinion, with the support of eight members of the Court overall, said in a final footnote that is likely to take on added significance that the “ministerial exception” was not “a jurisdictional bar” to all such lawsuits claiming workplace bias.  Rather, the Chief Justice explained, it is “a defense on the merits.”  Thus, such lawsuits can be filed, and the worker who is suing will make a claim that he or she is the victim of discrimination, and then the denomination gets to answer that the case cannot go further because it considers the employee to be a “minister.”

The footnote concluded: “District courts have power to consider [such] claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception.”...

The week ahead: January 9, 2012

January 10 - Oral argument before the U.S. Supreme Court in FCC v Fox (No. 10-1293). The United States is appealing lower court rulings that the FCC's indecency restrictions on broadcast television and the Internet are unconstitutionally vague.  The communications at issue include images of nudity in a NYPD Blue episode and the use of phrases such as “f***ing brilliant,”  “f*** em,” and “f***ing easy” in a live broadcast.  

Also January 10 - Oral argument before the South Dakota Supreme Court in Rumpca v. Brenner, on the continuing validity of a cause of action for alienation of affection under state law. A hangover from common law, alienation of affection is a tort action that allows recovery of damages from an individual who seduced the plaintiff's (usually former) spouse and thus brought about the end of the marriage. South Dakota is one of seven states that still recognizes it as a valid claim.

Show me the money: Wrongful disclosure of HIV status draws little sympathy from Supreme Court

The Supreme Court heard oral argument on Wednesday in Federal Aviation Administration v. Cooper, a case involving the holder of a private pilot's license who sued for mental and emotional distress after the Social Security Administration revealed to the Federal Aviation Administration that he was HIV positive, a disclosure that violated the federal Privacy Act. (Justice Kagan recused herself and did not participate.)

From Huff Post:

...The Privacy Act provides relief for those who suffer "actual damages" from violations of the statute. At the trial court level, U.S. District Judge Vaughn Walker -- better known for striking down California's anti-gay marriage Proposition 8 as unconstitutional -- found that the FAA had violated the Privacy Act. But Walker determined that the term "actual damages" did not include purely psychological injuries that result in no economic loss. In other words, there would be no relief for Cooper.

The U.S. Court of Appeals for the 9th Circuit disagreed with the trial judge and allowed Cooper's claim to go forward. At Wednesday's oral argument, however, only Justices Ruth Bader Ginsburg and Sonia Sotomayor unequivocally championed Cooper's cause as the rest of the Court seemed poised to side with Walker's original decision.

Assistant Solicitor General Eric Feigin, arguing on behalf of the federal agencies, said that the Court's doctrines obligated the justices to narrowly interpret an ambiguous term like "actual damages." Since the Privacy Act itself broadened the privacy rights of individual citizens, Feigin said, it was enough to provide relief for economic damages.

"Then Congress maybe shouldn't have passed this statute," Justice Ginsburg interrupted. The primary injuries caused by invasions of privacy, she said, are not economic. "So you could say that Congress was much more generous than the common law was, but the impact on the person who is suing is not going to be out-of-pocket business loss, pecuniary loss," Ginsburg continued. "It's going to be the embarrassment, the humiliation."

Justice Samuel Alito, on the other hand, was skeptical about Cooper's embarrassment and humiliation, which resulted from his concededly illegal withholding of his HIV status from the FAA. "Are you claiming all of the emotional damages that resulted from his criminal conviction?" Alito asked Cooper's lawyer, Raymond Cardozo.

Justice Antonin Scalia, moreover, found little in the government's unauthorized agency-to-agency disclosure to warrant the distress that Cooper claims to have suffered. The government "just failed, intentionally failed, to follow the very detailed and, as I say, picky, picky prescriptions contained in the Privacy Act," Scalia said. "To say that you get emotional distress for that, as opposed to genuine -- what I would call genuine -- privacy incursions" that make private information public, "is a different question."

Ultimately, the Court's decision will turn less on the source or scope of Cooper's emotional distress and more on how the justices parse the word "actual." Sotomayor, the only justice who once served as a trial judge, questioned Feigin's purely economic definition. "I'm not sleeping, I have a nervous stomach, I'm not eating," Sotomayor said, noting "the typical things that juries look at to determine whether you have proven emotional distress." She asked, "Why is that not actual injury?"

Because, Feigin answered, Congress assigned a commission "to make a recommendation about whether the act should later be expanded to include general damages," a term traditionally understood as non-economic injuries. And the law was not expanded.

In his conclusion, Cardozo responded that Feigin's argument relied on legalistic parsing that "renders this act virtually irrelevant." He urged the Court to "give actual damages its most common and ordinary meaning: proven, not presumed." But by the end of the hour, it was clear that most of the justices had not been convinced by the simplicity of that argument, leaving Cooper and others similarly injured with no remedy under this particular federal law.

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.”...

Disappointing denial of cert in Adar v. Smith

The Supreme Court's denial of review in Adar v. Smith leaves standing an extremely disturbing precedent. The denial sends a signal that a state can evade granting to certain out-of-state adoption orders the Full Faith and Credit protection that adoptions have long received. The Fifth Circuit en banc decision that was left in place may well have harsh consequences for lgbt and other unmarried parents. (Because the state policy is against adoption by all unmarried parents, the issue of whether the state could refuse to recognize a two-parent adoption for a gay couple who had married is still presumably open.)

For gay couples considering adoption, the undisturbed Court of Appeals decision eliminates Louisiana from the possible birth locations of children whom gay couples can adopt (thus probably consigning those children to foster care). And although this is not the factual context in Adar, I would bet that gay parents will think twice about moving to any state that follows this policy, despite, for example, job opportunities there.  Perhaps that was precisely what Louisiana officials were thinking. The risk, of course, is that other states will follow suit.

SCOTUSblog summary:

...[T]he issue was whether [the gay parents] have a right to equal treatment with married non-gay couples in having both parents’ names listed on the child’s birth certificate.  The case also was considered an important case on the meaning of the Constitution’s Full Faith and Credit Clause, because of the sharply narrow scope given to that Clause by the Fifth Circuit Court.  Louisiana’s records registrar refused to put both parents’ names on the birth record for their adopted son, relying on a state policy that forbids unmarried couples to jointly adopt a child.

The adopting couple, now living in California, had become parents of a Louisiana-born boy who had been put up for adoption.  The adoption was formalized in a court decree in New York State, and the parents sought a new birth certificate for the child in Louisiana.  When the request to have both parents named on the certificate was denied, the couple sued in federal court.  Their claim under the Full Faith and Credit Clause was flatly rejected in an 11-5 ruling by the Fifth Circuit, sitting en banc.  It ruled that the Clause only imposes duties on state courts to respect other states’ official decrees, and thus did not apply to a Louisiana records official.  The Circuit, by a 9-7 vote, rejected the couples’ equal protection claim, saying that adoption was not a fundamental right and, moreover, Louisiana had a legitimate reason for refusing to allow unmarried couples to jointly adopt.

In the Supreme Court order denying review, there was no notation of any dissent among the Justices.

Supreme Court struggles with how to reconcile "ministerial exception" with secular jurisdiction of civil rights

Mucho commentary about reactions from the Justices to the arguments this morning in the Hosanna-Tabor case, a dispute with potentially major ramifications in cases involving religious defendants seeking exemptions from enforcement of anti-discrimination laws. Full transcript is here. From HuffPo:

...[T]he Court is considering for the first time the scope of the "ministerial exception" -- a doctrine developed by the lower courts over the past 40 years. Under the ministerial exception, the federal courts decline to hear certain discrimination lawsuits brought by employees of religious organizations. The exception is meant to preserve the First Amendment wall between church and state.

In 2000, Hosanna-Tabor, a Lutheran grade school in Michigan, made Cheryl Perich a "commissioned minister" so that she could be promoted from a year-to-year contract employee to a "called" teacher deemed religiously fit for a permanent position at the school. As a called teacher, Perich taught a variety of secular subjects as well as a religion class. In 2004, she went on disability leave for what was soon diagnosed as narcolepsy. Per its policy, the school asked her to resign once her absence exceeded six months, but she refused. Rather than submit to the school's request that her complaint be handled within the Lutheran church's own adjudicative process, Perich threatened to file suit with the EEOC under the Americans with Disabilities Act. In response, the Hosanna-Tabor congregation rescinded Perich's "call," which drove her to follow through on her threat to file with the EEOC.

On Wednesday morning, Douglas Laycock, a law professor at the University of Virginia who represented Hosanna-Tabor..., began by proclaiming that "the churches do not set the criteria for selecting or removing the officers of government, and government does not set the criteria for selecting and removing officers of the church."

Justice Sonia Sotomayor didn't buy Laycock's aphorism. "We know from the news recently that there was a church whose religious beliefs centered around sexually exploiting women and, I believe, children. Regardless of whether it's a religious belief or not, doesn't society have a right at some point to say certain conduct is unacceptable," asked Sotomayor. "And once we say that's unacceptable, can and why shouldn't we protect the people who are doing what the law requires [by] reporting it?"...

Turning from hypotheticals to the facts of the case, Justice Anthony Kennedy, who is known for his robust view of the courts' role, expressed astonishment that Perich "was fired for simply asking for a hearing." And Laycock's response -- that Perich could get a hearing from the church for her claims against the church -- hardly heartened Kennedy. "You're asking for an exemption so that these issues can't even be tried," said the justice...

The paradigmatic ministerial exception for the Roman Catholic Church against sexual discrimination lawsuits brought by would-be female priests loomed large during oral argument. Scalia, Breyer, Alito and Roberts all took turns pressing Kruger and Perich's lawyer, former Acting Solicitor General Walter Dellinger, on why a Lutheran tenet commanding internal dispute resolution did not deserve the same respect as Catholicism's male-only priesthood. The lawyers could not answer to the justices' satisfaction.

During Laycock's argument, Justice Ruth Bader Ginsburg did have a hard time finding consistency in Hosanna-Tabor's policy on employee complaints. In his written briefs, Laycock had said that an employee could bring some suits, such as a complaint about unsafe working conditions, against Hosanna-Tabor without running into the ministerial exception. "I don't follow why" such a claim "would not fall under the same ban on keeping disputes in-house?" said Ginsburg.

From Lyle Denniston at SCOTUSblog:

...University of Virginia law professor Laycock, perhaps the country’s leading academic expert on the Constitution’s religion clauses, was there to argue for the church that anyone holding “an ecclesiastical office” and teaching the faith, among other “important religious functions,” was a “minister” and could not sue under anti-discrimination law.  But, while he faced criticism from the other side that his rule was too categorical, he had significant difficulty keeping it within a well-defined compass.  At one point, for example (and to the seeming astonishment of Justice Scalia), he suggested that the definition of “minister” was a legal issue, not a religious question. So, Scalia said, “you would allow the government courts to probe behind the minister’s suggestion that this person is a minister?”

As members of the Court, especially Justice Sonia Sotomayor and Justice Anthony M. Kennedy, expressed some alarm at shutting off government inquiries into claims of retaliation for pursing one’s rights, Laycock began making concessions, suggesting, for example, that “there has to be some kind of qualitative threshold” for invoking the “ministerial exception.”  And, he said, “there will be line-drawing problems” — supposedly, something that a court would have to probe in order to know whether the exception applied.

He also said that, if the claim of the “ministerial exception” was only a “sham,” the courts could go ahead with the case.  But, since he had resisted allowing a case to proceed if the claim of the exception was merely “a pretext” for a biased employment action, Scalia wondered whether there was a difference between a sham and a pretext.   Justice Samuel A. Alito, Jr., did give Laycock some support on his resistance to judicial inquiry into a “pretext” claim against the invocation of the “ministerial exception.”  In doing so, Alito began the exploration of whether church-state separation required a hands-off policy for the doctrines of one faith, but not of another.

After a series of seeming concessions by Laycock, Justice Kennedy suggested that they embraced this very case.  Noting that the professor would allow judicial inquiry into the number of secular functions a parochial teacher had, Kennedy said “that’s what this case is.  But you don’t even want that issue to be tried.  You say that issue can’t even be explored.”  It was apparent that several members of the Court were growing frustrated with where Laycock’s argument was actually going.   They seemed to be hoping for some simplicity, but they were not getting it in any significant measure...

More after the jump -->

Nino the quotable

Justice Scalia at today's Senate Judiciary Committee hearing:

"I'm hopeful that the living Constitution will die."

"Federal judges ain't what they used to be. [The federal judiciary should be an elite group.] It's not as elite as it used to be."  [NB - bet it has something to do with demographics]

"We sit there like nine sticks on chairs. There's not a lot of dramatic motion."

The week ahead: October 3, 2011

It's going to be a big week at the Supreme Court. Here's what to watch for:

Wednesday, October 5 - The Supreme Court will hear argument in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a case in which the EEOC is seeking to block use of the "ministerial exception," - under which religious entities are exempt from application of any anti-discrimination laws - in a case involving the firing of a religious school teacher who filed a complaint of disability discrimination. The case is being litigated on a retaliation theory; the school asserts that filing cases against others within the faith violates their beliefs and that the ministerial exception blocks plaintiff's retaliation claim. The case is on appeal from a Sixth Circuit decision.

Also October 5 - Supreme Court Justices Breyer and Scalia will testify before the Senate Committee on the Judiciary at a hearing on "Considering the Role of Judges Under the Constitution of the United States" at 2:30 pm.  The hearing will be webcast.

Friday, October 7 - At the Justices' private conference meeting, the Supreme Court will decide whether to grant cert in Adar v. Smith, a case in which Louisiana officials denied recognition of a two-same-sex parent adoption from another state.

 

Quote of the week - Justice Ginsburg

From a speech by Justice Ruth Bader Ginsburg at Hastings College of Law:

We should not be stopped from pursuing whatever talent God has given us simply because we are of a certain race, a certain religion, a certain national origin, a certain gender or gender preference.

To my knowledge, this is the first explicit public endorsement by a Justice of the Supreme Court of the principle that discrimination based on sexual orientation should not (ever) be lawful.

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.

Justice Ginsburg reviews the term

Justice Ginsburg may not be the funniest Justice (see text at n. 15), but this partly whimsical speech she gave describing the term just ended proves that she has a sense of humor. More seriously, she comments on the most significant opinions of the past year, including Arizona Free Enterprise Club's Freedom Club PAC v. Bennett. In this case, the Court struck down a state law that provided matching funds for candidates who accepted the limitations of using public funds for their campaigns and who were being outspent by privately-financed candidates. Ginsburg joined a dissent by Justice Kagan that would have upheld the law. Her succinct explanation: "All the democracy money can buy, I believe, is not what the First Amendment orders."

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.

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."