hunter of justice

Who's intolerant? McConnell weighs in for CLS

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

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

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

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

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

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

After the jump, Dorf replies to McConnell -->

Debates begin on Christian Legal Society case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Supreme Court grants cert in Christian Legal Society case

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

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

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

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

Will Supreme Court grant cert in Christian Legal Society case?

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

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

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

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

Sotomayor unleashed

The current issue of Latina magazine contains a feature on the personal side of Justice Sotomayor, written by a good friend, Sandra Guzman. The magazine has posted excerpts on its web page, including the following:

One evening this past spring, as we prepared dinner for a group of friends, I asked her for some advice. She listened closely as I relayed my marital problems. I still recall her words, which I carry in my heart to this day. She told me that we have been wrongfully taught the Cinderella fairy tale as a paradigm of what happy relationships are supposed to be. And when we fall short of that, we suffer for it. To find happiness in love, she said, we have to make up our own rules. It’s not easy, but it’s doable. The process may involve unlearning what we have been taught and then figuring out what makes us happy. There are all types of relationships and arrangements to choose from. Of course, the trick is finding a companion who shares those values.

Love is not the only area where Justice Sotomayor has faced her fears and worked her way through them. Even as recently as April, she had doubts about her potential rise to the Supreme Court. She had been on President Clinton’s Supreme Court short list, but no seats became vacant. When Obama won the White House, the legal world hedged their bets on the brilliant judge with the impeccable résumé. But weeks before Obama made public his pick to replace Souter, Sotomayor called her confidante and good friend [NY attorney Lee] Llambelis, telling her that she wanted to pull her name from consideration.

“You have to understand that Sonia is a very private person,” Llambelis explains. “She didn’t want to go through another public vetting process and a potential public dressing-down by those on the Republican right who opposed her nomination. Sonia was happy being a Federal Appeals judge, loved her life in New York and felt fulfilled. She worried about having less time to spend with her mother, family and friends, particularly given her mom’s age and potential health complications.” Llambelis recalls listening to her friend, whose “I can” mantra was being drowned out by last-minute uncertainty. She told her to think beyond herself. “At this point, this is not about you,” Llambelis said to her. “It’s about little girls and boys, brown and black, who live in the projects and in poor communities around our nation, who can dream bigger if you are in the Supreme Court. You cannot back down now.” Sotomayor promised to think about it overnight. And in the morning, she woke up with a lighter heart and a bigger purpose.

In her short tenure so far on the court, the justice we have witnessed is no shrinking violet. She asks tough questions and is not intimidated by her rookie status. Sotomayor’s charm and confidence surprise very few people who know her, including the man who nominated her. While President Obama’s staff was preparing Sotomayor for the confirmation hearings in a White House office called the War Room, the team covered all the potentially explosive questions and briefed her on every minute detail, including how to dress for the cameras. They even advised her to keep her nails a neutral shade, which she did. But on the day of the White House reception celebrating her appointment, Sotomayor asked the president to look at her freshly manicured nails, holding up her hands to show off her favorite fire engine–red hue. The president chuckled, saying that she had been warned against that color.

She sure had, but Sotomayor was not finished. She then pulled her hair back behind her ears, exposing her red and black semi-hoop earrings, a beloved accessory among Latinas across America—from the South Bronx to Houston to East Los Angeles.

Obama joked that she had been briefed on the size of the earrings as well. Without skipping a beat, Sotomayor replied: “Mr. President, you have no idea what you’ve unleashed.” He responded, “Justice: I know and remember it’s a lifetime appointment. And I and no one can take it back.” And that, as they say, is the final verdict.

BDSM case goes to Supreme Court

by guest blogger Harper Jean Tobin

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

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

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

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

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

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

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

Justice rocks

Justice Sotomayor + (actor) Esai Morales = Salsa!

From last night's benefit for the National Hispanic Foundation for the Arts:

Justice Sotomayor: The reward for suffering fools patiently

The core point in the debate over soon-to-be Justice Sotomayor's confirmation was whether she is a centrist, as virtually her entire body of opinions indicated, or a leftist, as various right-wing Republicans labored mightily to construct.  The truth, of course, (as with breath mints and candy mints) is that she is both. Why? Because this is what happens when the left wing of the Supreme Court consists of centrists.

My bet is that her career as a justice, at least in the early years but perhaps enduringly, will look a lot like that of Justice Ginsburg.  One senses that Sotomayor has clear and strong progressive beliefs, not from the kind of legal trailblazing that Justice Ginsburg did in the 1970s, but from her own personal story and affiliations.  I suspect that she, like Ginsburg, trimmed those sails during the years that she served on the Court of Appeals, given that it would have been impossible for her not to know that if a Democratic president got to appoint the first Hispanic justice, she had the inside track for the nomination. Both women had impeccable precedent-following, fact-limited approaches to appellate judging.  As a justice, Ginsburg has been less a trailblazer than a thoroughly dependable progressive vote, far beyond just women's issues, and one of this Court's anchors of humane jurisprudence, all of which is not bad as legacies go.  But I hope that Sotomayor will be more inclined to swing for the fences now and then.

Sotomayor's confirmation process produced little of any real interest or substance. It did illustrate, however, the idiocy that nominees have to endure.  In honor of her having survived it, therefore, I offer my top 10 list of moments when not laughing, crying or choking must have been tough:

(10) Sen. Coburn: Do you believe that our federal courts enable the federal government to exceed its intended boundaries by interpreting Article I's commerce clause and necessary and proper clause to delegate virtual unlimited authority to the federal government?

(9) Sen. Graham: What is identity politics? ... Do you embrace identity politics?

(8) Sen. Graham: What did September the 11th, 2001, mean to you?

(7) Sen. Coburn: Do you not consider it ironic that the majority of the debate about the 14th Amendment in this country was about the taking of guns from freed slaves? Is that not ironic that we now have some kind of conflict that we're going to say that the whole reason in the debate about the 14th Amendment originated from states taking away the rights of people's fundamental right to defend themselves? Is that not an irony to you?

(6) Sen. Sessions: Aren't you saying there that you expect your background and -- and heritage to influence your decision-making?

(5) Sen.Graham: Now, legal realism, are you familiar with that term?

(4) Sen. Grassley: Do you find it unreasonable that the EPA was willing to allow money to be spent in a cost-effective manner by not requiring billions of additional dollars to be spent to save a minimal number of additional fish?

(3) Sen. Graham: From what you read and what you understand about the enemy that this country faces, do you believe there are people out there right now plotting our destruction?

(2) Sen. Kyl: You've always been able to find a legal basis for every decision that you've rendered as a judge?

(1) Sen. Graham: Do you think you have a temperament problem?

Supreme Court denies cert in school religious club case

In a little-noticed order on the last day of its 2008-2009 term, the Supreme Court denied cert last week in Truth v. Kent School District, a Ninth Circuit case in which a high school religious club sought to register with the school in order to use school facilities. In its opinion (542 F.3d 634, rehearing denied 551 F.3d 850), the Court of Appeals rejected the club's claim that enforcement of an anti-discrimination law constituted religious discrimination. The proposed charter filed by Truth restricted membership to those "complying in good faith with Christian character, Christian speech, Christian behavior and Christian conduct as generally described in the Bible." Voting members also had to sign a "statement of faith" and pledge "acceptance of Jesus Christ as my personal savior."

The school district denied recognition to Truth in part because of the implications of its name that other religions were false and in part because the membership criteria discriminated against non-Christians.  However, the Court of Appeals reversed summary judgment for the district on the ground that there was a triable factual dispute over whether the district consistently applied its anti-discrimination policy to all student clubs equally.

The cert petition filed by Truth challenged the Ninth Circuit's ruling that Truth had no viable claim under the Equal Access [to Schools] Act, absent the possible selective enforcement argument. Truth asserted that under that ruling, "schools are free to discriminate against student religious groups because of their membership criteria." Truth also argued that the Court of Appeals' rejection of its expressive association claim failed to properly apply Boy Scouts v. Dale.

Denials of certiorari in and of themselves do not create precedent, so one should not read too much into this one.  It does, however, seem to bode well for the defendants in Christian Legal Society v. Kane, in which the Ninth Circuit upheld judgment for UC-Hastings Law School (Mary Kay Kane was then dean), rejecting similar claims of expressive association and First Amendment rights by CLS. 2009 WL 69339. The Court of Appeals summarily affirmed a district court decision, citing simply its ruling in Truth v. Kent. Any risk that the latter opinion will be overturned is now over.

Meanwhile, CLS filed a cert petition in its case, which is before the Supreme Court this summer. Based on Truth v. Kent, the prospects for another denial of review, leaving in place a good decision, seem good.

Dellinger on Souter on social change and the Supreme Court

By Walter Dellinger, from Slate, writing on the role of public opinion in Supreme Court decision-making:

...It was not a mere coincidence that when the court stuck down homosexual sodomy laws in Lawrence v. Texas in 2003, the number of states that still had such laws was about the same as the number of states that still had de jure school segregation when Brown was decided—in each case, the retrograde states made up about one-fourth of the country. In contrast, when the court sustained state laws banning the use of lethal medication in Washington v. Glucksberg, the rejected claim of a right to physician-assisted suicide had not yet been recognized by even a single state.

What makes these questions so timely is that David Souter ... addressed these issues in a very powerful way just [before leaving the Court] in an passage that may well have been intended as a valedictory message to the court and a caution to those who litigate on behalf of individual liberty. In his dissent in the DNA case, District Attorney's Office v. Osborne, Souter wrote extensively about issues of substantive liberty that he did not need to address in order to decide the case before him. He obviously had some things he really wanted to say before hanging up his black robe.

In his essay-within-an-opinion, Souter clearly had the sweep of the court's future in mind, and not just any single issue. It is still hard to avoid the conclusion that one issue in his mind was gay marriage. His carefully nuanced message both defends the legitimacy of judicial recognition of "non-traditional" rights and cautions against a premature quest for national judicial rules.

Souter, recognizing the value of "continuity with the past," accepts the proposition that tradition is a "serious consideration" in judging whether a practice is "outside the realm of reasonable governmental action." He rejects, however, the notion that tradition defines and limits the scope of the liberties entitled to judicial protection against hostile legislation.

A true originalist, Souter refuses to limit individual rights to the time-bound set of liberties that the Framers of the 14^th Amendment would have include had they chosen to adopt a specific list. The short answer is that the Framers did not so choose. They deliberately wrote with a broad brush and left particular applications to the future. In carrying out that mandate, Souter writes, the court must look to "widely shared understandings within the national society" that can change "as interests claimed under the rubric of liberty evolve into recognition."

Having defended the concept of evolving liberty, Souter then turns to the important question of when it would be "premature for the Judicial Branch to decide whether … a general right should be recognized."

"The beginning of wisdom," he writes, "is to go slow." Before declaring "unsympathetic state or national laws arbitrary to the point of being unconstitutional," he writes, a wise court will "recognize how much time society needs in order to work through a given issue."

His opinion then takes what seems to be an extraordinarily personal turn. He may be speaking of himself (or his rural neighbors) when his says that "[w]e can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally." Sometimes, he says, "an attachment to the familiar and the limits of experience" limit "an individual's capacity to see the potential legitimacy of a moral position."

So, too, it is with the broader society, which "needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim." Souter's final message to his conservative colleagues is that conceptions of liberty evolve. And his last caution to those litigators pushing the frontiers of liberty is that nations, like individuals, need time to assimilate new thinking....

Fourth Circuit abortion case in pipeline to Supreme Court

From SCOTUSblog; also, more background here -

Two years after the Supreme Court last ruled on abortion restrictions, a new test case is likely on its way to the Court, perhaps reaching there by next Fall.  Responding to an order by the Justices to take a new look at a Virginia abortion ban, the Fourth Circuit Court on Wednesday upheld the law.  The en banc Court divided, 6-5, in sustaining the law against claims that it would criminalize the most common method of abortions performed in the second trimester.

The case of Richmond Medical Center, et al., v. Herring (Circuit docket 03-1821) is developing as a sequel to the Justices’ 5-4 ruling in 2007 in Gonzales v. Carhart, upholding a federal ban on a procedure its critics call a “partial-birth abortion.”   The Fourth Circuit’s opinion, concurrence and dissent can be downloaded here.

Twice, a divided Fourth Circuit panel struck down the state law known as the “partial-birth infanticide” law, enacted six years ago in Virginia.  The law differs in some significant respects from the federal ban on “partial-birth” abortions that the Court upheld in the Carhart decision, and that difference was the key factor in both Circuit panel rulings.

The first of those panel decisions was set aside by the Supreme Court (docket 05-730) on April 23, 2007, for reconsideration in the wake of Carhart.  After the panel once more nullified the law, the en banc Circuit Court set that aside and reconsidered the law’s validity, leading to Wednesday’s ruling.  It rejected both a “facial” challenge — to the law as written, no matter in what situation it might be applied — and a challenge to its application to a Richmond doctor and his clinic.

While noting that the Supreme Court had increasingly frowned on “facial” challenges to legislation, the Circuit Court did not rule them out entirely when aimed at an abortion law, just as the Supreme Court has not forbidden such challenges.  But the Circuit Court said that, no matter what standard is applied, the Virginia law satisfied it.

While the panel had said that there was a serious risk that the Virginia law, in practice, could criminalize a doctor’s procedure that violated the law simply by an accident, the en banc majority said “there is little or no evidence” of that in this case, although conceding that it might happen rarely.

The Virginia law, it said, is “somewhat different” from the federal ban, but still “provides sufficient clarity as to what conduct is prohibited to enable a doctor of reasonable intelligence to avoid criminal liability under it.”

The most significant difference between the Virginia ban and the federal ban is that, under the Virginia law, a doctor who intends to perform an abortion that does not violate the law, but the fetus accidentally is delivered intact to a significant degree, and if the mother’s life is not at stake, the doctor has committed a crime.

The Circuit Court’s dissenters argued that the majority ruling “marks an alarming departure from settled Supreme Court precedent: it sanctions an unconstiutional burden on a woman’s right to choose…[The law] violates the Constitution because it exposes all doctors” who perform a standard abortion to prosecution, conviction, and punishment, because it punishes violations of the law by mere accident.

Premiere of film about "Gay Olympics" case

A new film is opening about the Supreme Court case that upheld the right of the U.S. Olympics Committee to stop use of the phrase "gay Olympics." Claiming the Title, which uses the case as a window into examining the lgbt rights movement in the late 1980s, has its world premiere this Sunday the 21st at 3:30 pm at the Castro Theater in San Francisco. The story revolves around the litigation of San Francisco Arts & Athletics Ass'n v. U.S. Olmpics Committee, 483 U.S. 522 (1987).

I've seen it (confession: I'm in it), and I think that the two filmmakers - Jonathan Joiner and Robert Martin - have done a terrific job. In many ways, the film is an homage to Mary Dunlap, the brilliant out-spoken lawyer who was lead counsel for the plaintiffs.

If you're not in the Bay Area, you can see the trailer and watch for the film to show up at a festival near you.

The showing is actually a double-header. Claiming the Title will be followed by a screening of Training Rules, a new film by Dee Mosbacher and Fawn Yacker, about the struggles faced by lesbian athletes.

What a great way to spend a Sunday afternoon - I wish I could be there.

ACLU issues analysis of Sotomayor rulings

The ACLU has issued a detailed analysis of Judge Sonia Sotomayor's judicial record. The conclusion:

In general, Judge Sotomayor's judicial opinions reflect a detailed attention to the facts and a close regard for precedent.  They are carefully reasoned but do not engage in broad discussions about constitutional philosophy or competing modes of constitutional interpretation. Because Judge Sotomayor's opinions are so fact-based and rarely stray far from well-established precedents, they are often difficult to characterize as either liberal or conservative.

HT: Sharon McGowan

Supreme Court denies cert in DADT case

This morning the Supreme Court denied certiorari in Pietrangelo v. Gates, meaning that the First Circuit's opinion upholding DADT (in Cook v. Gates, 528 F.3d 42) is the final word in that lawsuit.  The case was interesting because of the split it engendered among lgbt advocates and because the Justice Department's obligation to file a response to the cert petition forced the new administration to walk a line between defending a federal statute, as DoJ almost always does, and not defending too strongly a system that the President has said he opposes. (background here) No one expected anything other than the cert denial that has now been announced.

Sotomayor: "The facts that judges choose to see"

The following excerpt is from the infamous speech that Judge Sotomayor gave at Boalt in October 2001, later published in the La Raza journal, and which now has been demagogued endlessly by rightwingers desperate for a way to stop her appointment. In my view the speech offers not just a solid defense against charges of racism (it makes me choke even to write that), but a set of perceptive insights into the process of judging. Judge Sotomayor obviously has thought deeply about the tensions with which she must live and work as a Latina judge. I will be thrilled if she becomes a Justice of the Supreme Court.

... Professor Judith Resnik says that there is not a single voice of feminism, not a feminist approach but many who are exploring the possible ways of being that are distinct from those structured in a world dominated by the power and words of men. Thus, feminist theories of judging are in the midst of creation and are not and perhaps will never aspire to be as solidified as the established legal doctrines of judging can sometimes appear to be.

That same point can be made with respect to people of color. No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. Yet, because I accept the proposition that, as Judith Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minow of Harvard Law School, states "there is no objective stance but only a series of perspectives - no neutrality, no escape from choice in judging," I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging. ... As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging. ...

Whether born from experience or inherent physiological or cultural differences, ... our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line, since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Minow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

... I, like Professor [Stephen] Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. ...[N]ine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown [v. Board of Education].

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept ... [that] the presence of women and people of color on the bench [will make a difference]. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage....

Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely, and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me require. I can and do aspire to be greater than the sum total of my experiences, but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate....

[Full text of speech here]