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74 posts categorized "Supreme Court"

November 12, 2010

Justice Kagan recuses herself from DADT case

In a thoroughly unsurprising decision, the Supreme Court today denied the application by Log Cabin Republicans to reinstate Judge Phillips' injunction blocking enforcing of the DADT policy. LCR lawyers sought to lift the stay granted by the Ninth Circuit, but the Court left it in place. 

What was noteworthy is that Justice Kagan took no part in the deliberation or decision. There was no reason stated for the recusal, but it likely was based on Justice Kagan's participation as Solicitor General in other challenges to DADT. It means that if the repeal effort fails and the litigation continues, she will not participate if and when a DADT case reaches the Supreme Court. 

With the policy remaining in effect, the LCR lawyers may well ask the Ninth Circuit to expedite the appeal, as has been ordered in the Prop 8 case before the same court.

November 11, 2010

Sequel to Snyder v Phelps: More speech

There's a First Amendment cliche that the best response to offensive speech is more speech. That doesn't always do the trick in real life, but it seems to have prompted an appropriate reaction to the loony Fred Phelps/Westboro Church crew who show up at (straight) service member's funerals with signs proclaiming that the death was God's punishment for America's tolerance of homosexuality. One decedent's father sued Phelps, and the case is now in the Supreme Court.

In the meantime, though, other groups have started turning up at these funerals to out-demonstrate the Phelps crew. (This is made easier by the fact that the entire congregation of the Westboro Church consists of members of the Phelps family.) The photo below shows a bikers club in Missouri standing between the Phelps contingent and the curb, blocking sight of them by persons attending the funeral.

Westboro Church

October 17, 2010

Will DC be the next California?

Same-sex marriage became legal in DC in March over protests led by Bishop Harry Jackson, a local minister, who has crusaded first to block the law and now to have it repealed by means of a voter referendum. The DC Board of Elections denied a petition to put the question on the ballot on the ground that, if adopted, the repeal would violate the local anti-discrimination law, a category of proposed laws that the D.C. Charter (analogous to a state constitution) prohibits from being adopted by referenda. 

Jackson's organization - Stand for Marriage DC - tried to get the case before the U.S. Supreme Court on an emergency petition early this year, but the Court declined to hear the case. Writing separately, however, Chief Justice Roberts stated that the petitioners' "argument has some force," but that the proper procedure would be for them to first litigate in the DC court system. Bishop Jackson's group, he wrote, would "have the right to challenge any adverse decision through a petition for certiorari in this Court at the appropriate time." 130 S.Ct. 1279, 1280 (2010). That is what is known as a hint.

Accordingly,the group sought review in the D. C. Court of Appeals (equivalent to a state supreme court), which last summer upheld the decision of the Board of Elections. 999 A.2d 89 (2010).

Now they are back at the Supremes. The Alliance Defense Fund has filed a new cert petition, hoping that Chief Justice Roberts and at least three other Justices will vote to hear the case. (A minimum of four votes is required for the Court to grant cert.)

The case contains obscure questions of federal law that pertain only to DC because of DC's status as a unique quasi-colony in the federal system. If any other issue were involved, I think that the Court would be very likely to deny cert, finding that the legal questions presented did not merit highest court review, in part because of their very limited ramifications.  On gay marriage, though, with four extremely conservative Justices including one who signaled that he was sympathetic, I think all bets are off.

If the Supreme Court does reverse the DC courts, their decision would not involve the constitutionality of gay marriage one way or another. However, a vote on whether to repeal the equal marriage law would be scheduled in DC. The result would amount to an East Coast rerun of Prop 8, with issues of religion and race foregrounded.

In other words, the legal stakes are small, but the political stakes are enormous. This is a case to watch.

October 05, 2010

Previewing tomorrow's argument in Snyder v. Phelps

The Supeme Court hears arguments Wednesday in Snyder v. Phelps, a case that will decide whether the law can squelch especially hateful anti-gay speech by the self-annointed "prophets and prophetesses" of a tiny Kansas church. It seems to me that only a new carve-out of First Amendment protection could allow sanctions against this speech, and I find it surprising that the Court granted cert. It did, though, so at least four Justices must think that there is some plausible question in the case.

Here is an excerpt from the SCOTUSblog summary of the main briefs:

Albert Snyder’s brief on the merits ... assert[s] that the Court should not extend [Hustler Magazine v. Falwell] to an intentional verbal assault on “a private individual [who] has done nothing to attach himself to a public event or controversy.”   The Rev. Falwell, it noted, sued the magazine in his role as a public figure...

The starkly contradictory view that the Westboro Baptists hold of the core issues in the case emerged anew in their merits brief.  Once more, they stressed their claim that their expression fit completely within the Hustler precedent — public speech that cannot be proven false, and that was not uttered with “actual malice.”  “The Constitution,” it asserted, “is imperiled if a subjective claim of outrage can be used to penalize into silence speech that does not make false statements of fact, uttered in public arenas on public issues.”...

It also expressly disagreed that Snyder had any claim to privacy invasion, since funerals are public events, and that is especially so for the funerals of soldiers...

Snyder’s appeal draws fervent, outright support — most conspicuously from 42 members of the U.S. Senate, speaking in favor of the laws passed by Congress and 46 states to limit picketing at funerals and calling for a full Supreme Court embrace of the broad notion that protesters like the Westboro Baptists should not be “free to hijack [this] private funeral as a vehicle for expression of their own hate.” and 48 states and Washington, D.C., similarly defending state laws against what they call “psychological terrorism that targets grieving families.” ...

Lining up on the side of the First Amendment (while distancing themselves from the “inexplicable and hateful” message of the Westboro Baptists),  ...  [a] group of First Amendment scholars rather boldly suggested in its brief that the dignity interests of those engaged in burying their dead are not really at issue in this case, because there are ample means — within the concept of “time, place and manner” restrictions tolerated by the First Amendment” — to protect those interests.  Many of the amici filings on this side of the case appear to be most alarmed at the prospect that the Court would significantly expand the “captive audience” concept.

The Court has been served up in this case with a set of mutually exclusive choices — deciding how to interpret the facts of what went on [at Matthew Snyder's funeral], deciding on the meaning and reach of its prior First Amendment rulings on state torts and on media vs. non-media defendants in such lawsuits, on the nature of the Westboro Baptists’ expression and its link — or lack of it — to public questions, on the legal “personality” that Matthew’s father assumed at the time of the picketing and since, and on the definition and scope of “captive audience” doctrine.

It seems clear that, to rule definitively for either side, the Court would have to make most if not all of those choices in one direction.  Each side’s argument depends upon its explicitly tailored view of not only the facts but what those facts mean to the legal concepts.  For all of the effort, on each side, to make the case fit neatly into already established First Amendment norms, this case has about it the promise of rewriting a considerable body of First Amendment law.

For a Court that so recently had refused to create a new exception to the First Amendment’s protection (so as to permit the outlawing of animal cruelty videos and films), the task of crafting a “funeral rights” exception to free speech doctrine may be a forbidding one.  But for a Court hearing this case in the midst of war weariness and an expanding fear of decaying morality, the prospect of drawing a First Amendment shield around  the Westboro Baptists’ message may also be a daunting one..

September 28, 2010

Phelps crew targets 3 churches on their way to the moot

[SCOTUS_0927jpg] Next Wednesday the Supreme Court will hear argument in Snyder v. Phelps, which raises the question of whether truly repulsive speech is protected by the First Amendment. (The answer is almost certainly yes.) The appeal is on behalf of Fred Phelps and his hardy little band of followers, who have seized upon the idea that the best way to protest gay rights is to show up at the funerals of dead service members and declare that all such military deaths are God's punishment for America's tolerance of homosexuality. No, I'm not kidding. 

Representing Fred Phelps is his attorney daughter Margie Phelps. (That's her wearing the pink shirt in the photo.) It's either astonishing or frightening or both that 10 of his 13 children became lawyers. Here is Margie's lawyerly view of the Phelps enterprise: "Our role is simple. We are prophets and prophetesses." 

On Sunday the entire (tiny) crew was in Richmond for a moot of the argument that was sponsored by Virginia Commonwealth University and the University of Richmond Law School. According to the Richmond Times-Dispatch, a not so funny thing happened on the way to the moot: Margie and her peeps managed to work in three protests at local churches. 

Church-goers in DC - you are forewarned. 

September 08, 2010

Supreme Court argument set in Snyder v. Phelps

The Supreme Court will hear argument four weeks from today, on October 6, in Snyder v. Phelps, No. 09-751. So far, this is the only case on this term's docket that involves lgbt-related issues, although the legal questions before the Court have nothing to do with sexuality or gender law.

The case concerns whether the First Amendment permits a civil action against Fred Phelps and others who routinely picket funerals of servicemembers with signs celebrating the death as evidence of God's punishment of the United States for tolerating homosexuality. Examples of the signs:"Thank God for Dead Soldiers" and "You're Going to Hell."

Phelps and his crew conducted their protest at the funeral of Marine Lance Cpl. Matthew Snyder, who was killed in Iraq. They stayed a thousand feet away from the church; many mourners apparently did not see them because traffic was directed along other streets. Matthew's father sued Phelps for invasion of privacy, intentional infliction of emotional distress and other torts. The jury returned a verdict for Snyder of nearly $11 million, mostly punitive damages (later cut by the judge to $5 million).

The Fourth Circuit  overturned the verdict, on the grounds that Phelps's speech, however outrageous, consisted of hyperbolic rhetoric and contained no provably false factual connotations (both First Amendment standards). 

This is truly a case of constitutional protection for disgusting speech. No surprise that the Snyder family got a huge jury verdict. Also no surprise that First Amendment advocates have lined up to support Phelps. Most interesting sidelight in the case: Phelps is being represented by his attorney daughter. Oral argument is going to be a macabre event.

September 07, 2010

The partisan polarization of the Supreme Court: the role of feeder judges and clerks

Adam Liptak has an excellent analysis in this morning's NY Times of how the dramatic upsurge in the partisan polarization of the Supreme Court can be seen in who is selected for clerkships and how they are selected. The process is one factor in the hyper conservative jurisprudence of this Court.

My one quibble with the article that it conflates political with partisan: it repeatedly refers to an increased politicization of the Court, which I think is misleading. The Court has been sharply divided by ideology at various points in its history. What is new is that the Democrats and Republicans are both far more ideologically coherent than they have been in modern times, and judicial appointments are far more politicized. The net result of this double phenomenon is that the views of appellate judges (who feed the Supreme Court with clerks) predictably track the views of the party affiliated with the President who appointed them, at least on certain issues.

And Supreme Court Justices increasingly tend to select clerks from like-minded appellate judges. In the chart below, e.g., note that Justice Rehnquist hired almost as many clerks from D-appointed court of appeals judges in the 1975-1980 period as Justices Roberts, Thomas, Scalia and Alito together have hired in the last five years. According to the Times, even Big Law is increasingly partisan, as more and more firms are identified more strongly with one party or the other, in part by which clerks they hire. 


Excerpts from full article are after the jump.

Continue reading "The partisan polarization of the Supreme Court: the role of feeder judges and clerks" »

Christian Legal Society: Is there still a pretext claim?

From (Mike) Dorf on Law:

...[W]hen the Supreme Court affirmed the 9th Circuit ruling in Christian Legal Society (CLS) v. Martinez, it did not address the claim advanced by CLS that Hastings Law School had enforced its "all-comers" policy in a discriminatory manner, denying registered student organization (RSO) status to CLS but granting RSO status to other student groups that violated the all-comers policy.  CLS had argued that the all-comers policy was a pretextual ground for denying RSO status to CLS, the real ground being discrimination based on religion.  In declining to address this claim, the SCOTUS said that on remand "the Ninth Circuit may consider CLS’s pretext argument if, and to the extent, it is preserved."

Unsurprisingly, the parties now take different positions before the Ninth Circuit as to whether the pretext argument is preserved.  CLS says it is, citing Justice Alito's dissent and bits of the record; Hastings says it isn't, citing bits of the majority opinion rejecting Justice Alito's characterization of the record, as well as other bits of the record; and then CLS again says the issue is preserved.  With the exception of a concluding speculation (below), I'll let interested readers sort this out for themselves, or just await the Ninth Circuit ruling on what is, at this point, principally an issue of civil procedure rather than constitutional law.

Here I want to raise a related question: leveling down.  Suppose that the Ninth Circuit concludes that the pretext claim is preserved and further concludes that in fact Hastings did not enforce its all-comers policy even-handedly.  It does not necessarily follow that CLS wins very much. That's because Hastings could eliminate the (assumed) constitutional violation in one of two ways: 1) It could eliminate the all-comers policy entirely, in which case CLS would get what it wants; or 2) It could, prospectively, apply the all-comers policy even-handedly, in which case CLS does not get what it wants.  As the Court explained in Orr v. Orr:

In every equal protection attack upon a statute challenged as underinclusive, the State may satisfy the Constitution's commands either by extending benefits to the previously disfavored class or by denying benefits to both parties (e.g., by repealing the statute as a whole).

Nothing in the above logic is limited to statutes, as opposed to policies (such as the all-comers policy) or to pure equal protection violations rather than violations of the parallel First Amendment prohibition on discrimination based on viewpoint or religion.

Note also that the (amended) complaint filed by CLS seeks declaratory and injunctive relief, not damages.  To be sure, it also includes a catch-all seeking whatever other relief the district court deems appropriate, but even if CLS obtains retrospective declaratory relief and some element of monetary compensation, going forward CLS could still be out of luck.  Although a district court has broad discretion to fashion an effective remedial injunction, in a case like this one it is hard to imagine that would include an order to Hastings to exempt CLS from its all-comers policy, assuming Hastings really does undertake to apply the policy even-handedly henceforth.  At most, the district court would be able to retain jurisdiction to monitor Hastings' compliance with the obligation to apply the all-comers policy even-handedly.

Thus I come to my concluding speculation.  I wonder whether the CLS lawyers thought this all through long ago:  Perhaps they realized that winning by showing that Hastings had discriminated in the past would be a Pyrrhic victory, precisely because it would permit Hastings to "level down," whereas their core argument--that the all-comers policy violated the right to freedom of association even if applied even-handedly--would have given CLS a much larger win.  If this speculation is right, that may say something about the likelihood that CLS preserved the less potent pretext/discrimination claim it now advances.

September 03, 2010

Ruth Ginsburg, still showing how it's done

A great story about Justice Ginsburg that I had never heard, framed in a lovely tribute by Dahlia Lithwick at Slate:

Anyone who didn't already believe Justice Ruth Bader Ginsburg to be fashioned of pure steel was reminded of the fact Friday night as she delivered a speech to a group of lawyers and judges that was meant to have been delivered by her husband. Martin Ginsburg had been invited to deliver his remarks at the 10th U.S. Circuit Court of Appeals' conference in Colorado Springs, Colo., but he died in late June of metastatic cancer. As Ginsburg explained Friday evening, "He had his speech all written out." And so she read it—with a handful of interpolations—in its entirety to several hundred rapt listeners.

The speech, "How the Tenth Circuit Got My Wife Her Good Job," described the only case the Ginsburgs ever worked on together—a 1972 tax case called Moritz v. Commissioner, challenging the denial of a dependent-care deduction allowed to women, widowers, or divorced men but denied to a single man who was caring for his ailing mother. According to Martin Ginsburg, as read by his widow, in the 1960s, while he worked as a New York tax lawyer, she toiled as a law professor at Rutgers. And when he entered her adjoining study in their apartment one night—"her room was bigger"—with a report on the Moritz case and the excited suggestion that she might represent the pro se litigant on appeal, his bride apparently retorted, "I don't read tax cases." She read it, and they took the case.

The Ginsburgs not only prevailed at the 10th Circuit but also obtained—as Justice Ginsburg has detailed elsewhere—the solicitor general's Exhibit E, a "printout from the Department of Defense computer" that listed, title by title, every provision of the U.S. Code "containing differentiations based upon sex-related criteria." According to the brief filed by the solicitor general urging the U.S. Supreme Court to hear Moritz, the 10th Circuit decision "casts a cloud of unconstitutionality upon the many federal statutes listed in Appendix E." And as Martin Ginsburg noted in his speech, that computer printout proved "a gift beyond price" in his wife's future litigation career.

The Moritz case launched Ginsburg into her association with the ACLU Women's Rights Project, and Exhibit E offered a roadmap for litigation. She scored five victories in six Supreme Court appeals, using the 14th Amendment to slowly and systematically eradicate gender discrimination in one law after another, pushing the courts to scrutinize laws that classify on the basis of gender with a standard higher than the deferential "rational basis" standard...

[Sarah] Palin and the Mama Grizzlies .. owe a debt of thanks directly to Ruth Bader Ginsburg, who almost single-handedly convinced the courts and legislatures to do away with gender classifications ...

It was in Craig v. Boren [a case that involved different legal drinking ages for males and females] that Ginsburg secured the court's agreement that—in her words—the "familiar stereotype: the active boy, aggressive and assertive; the passive girl, docile and submissive" was "not fit to be written into law." The seed for Sarah Palin was sown... You can draw a straight line between Ginsburg's fight against ... seemingly harmless gender classifications that were rooted in seemingly harmless gender stereotypes and the Mama Grizzlies who roam our political landscape today...

After she finished reading her husband's charmingly funny speech, and while folks in the audience were still wiping away tears, Ginsburg sat down for a "fireside chat" with the chief justice of Canada, Beverley McLachlin, NPR's Nina Totenberg, and Robert Henry, the president of Oklahoma City University. (The woman sitting next to me whispered that the setup looked an awful lot like The View.) In response to a question about work-life balance, Ginsburg explained that in the early '70s, her son, "what I called a lively child but school psychologists called hyperactive," was forever in trouble and that she was constantly called in to his school, even though she and her husband both had full-time jobs.

"One day, I was particularly weary,"* she explained, and so when the school called, she said, "This child has two parents. I suggest you alternate calls, and it's his father's turn." She said calls from the school came much less frequently after that, because the school was "much less inclined to take a man away from his job." Ruth Bader Ginsburg doesn't growl and doesn't issue threats, and she rarely eats small forest dwellers. But she is still the mother of all grizzlies to me.

August 08, 2010

Why Perry might NOT go to the Supreme Court

The conventional wisdom that has emerged among journalists is that Perry v. Schwarzenegger is on a glide path to the Supreme Court -- yes it has to go through the Ninth Circuit first, but drama and quite possibly disaster for lgbt rights advocates inevitably loom at One First Street.

Maybe. Maybe not.

While the Walker opinion offers a strong analysis of the unconstitutionality of barring same-sex marriage that could (and should) be persuasive to other judges, it applies only to Prop 8, not to any other state's law banning marriage. Some of the findings of fact reach more broadly, but many are specific to the process by which Prop 8 was enacted.

The logical conclusion from Walker's opinion is that all anti-gay marriage laws are based to some extent on animus, and the decision provides a great foundation for challenges to other such laws. But it is at least possible that another case, brought in another state, could produce a different factual record or different legal arguments. 

In addition to a particular set of facts, there are legal arguments against Prop 8 that are specific to it and that lgbt rights groups have stressed in their district court amicus brief.

What this geographic limitation means is that the true scope of this decision will depend on how broadly the Ninth Circuit frames it on appeal. The Ninth Circuit could decide the case in a way that would make the narrowness of the holding  more apparent than it is from the face of the district court opinion.

Why is this important? A Court of Appeals opinion limited to Prop 8 - on both facts and law - would be much less likely to lead to Supreme Court review. This is one way the case may end at the Ninth Circuit.

Another way would be if the Court of Appeals accepts Plaintiffs' new argument that the Prop 8 proponents lack standing to appeal. If the Ninth Circuit agrees with Plaintiffs, it may not even reach the question of Prop 8's constitutionality. Of course, the Prop 8 proponents could then seek Supreme Court review on the standing decision. But it would be another easy way for the Supreme Court to duck a controversial issue.

Lastly, and especially if the standing question eats up time, perhaps the voters of California will repeal Prop 8 while the lawsuit is still pending in the judicial system.  This would be my own favorite outcome, not because I think it is improper for courts to uphold unpopular rights, but because the political message of popular repudiation of a bigoted law would be so much more powerful than even the most eloquent court decision.

August 06, 2010

Recusing Justice Kagan

Kagan_650x250_100702-400x153 Congratulations to Elena Kagan, set to be sworn in tomorrow as the next Justice of the Supreme Court.

Now let's consider how she might be restricted from hearing certain cases.

No federal judge can participate in a case in which she has

served in governmental employment and in such capacity participated as counsel [or] adviser ... concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy. 28 U.S.C. § 455(b)(3).

Based on her answers to written questions from members of the Senate Judiciary Committee, there are several lgbt-related cases in which Justice Kagan would recuse herself and one case where she may be subject to recusal. Most will probably not be consequential, but recusal in the last case, if it occurs, would be significant.

The first is Smelt v. United States, a challenge to the constitutionality of DoMA. Kagan stated that she had participated in discussions of DoJ's briefs in this case and that she would recuse herself if it came before the Supreme Court. (These were the briefs defending DoMA that caused such heartburn among lgbt advocates.) However, the Smelt case was dismissed on technical grounds a year ago. 

The second case is Witt v. Air Force, a DADT challenge. After the Ninth Circuit ruled that the military had to demonstrate on an individualized basis that the discharge of gay service members was justified by unit cohesion, the decision on whether to file a cert petition was squarely in the bailiwick of the SG's office. No cert petition was filed, and the case is now on remand to the district court. Again, there is no question that Kagan would have to recuse herself from this case. Hopefully, though, the DADT policy will have been repealed - and the case mooted - by the time it could re-enter the appellate process. Kagan testified that she also discussed discovery issues in Log Cabin Republicans v. U.S., another pending DADT challenge, which, like Witt, hopefully will be mooted by congressional action.

The most important case - and the one with the biggest question mark - is Gill v. OPM, in which a federal district court ruled that Section 3 of DoMA (barring federal recognition of same-sex marriages) is unconstitutional. This case is very likely to reach at least the front door of the Supreme Court, by which I mean that a cert petition will almost certainly be filed by whichever party loses in the Court of Appeals. If the First Circuit affirms the district court, the Supreme Court will probably grant review. And it's a virtual certainty that plaintiffs can't get five votes on this Court without one from Justice Kagan.

Kagan told the Senate Judiciary Committee that she would recuse herself from a case if she had "participated in formulating the government's litigating position or reviewed a draft pleading. In all other circumstances, I would consider recusal on a case-by-case basis."

With regard to Smelt, she said "I reviewed some briefs in the Smelt case and participated in discussions about the case shortly before the briefs were filed. My participation in the case was sufficiently substantial that I would recuse myself..."

She was then asked whether she reviewed briefs or participated in discussions about Gill. Her response: "Yes, I believe that discussions about Gill overlapped with discussions about Smelt." In other words, recusal in Gill is certainly a possibility. However, without knowing the extent and nature of the discussion specifically of Gill, it is not clear whether her participation was sufficiently substantial to require recusal. The outcome of the litigation could turn on the answer to that question.

There is a back-up scenario, however, even if Kagan is recused: if there is a four-four split among the Justices, the decision of the First Circuit would determine the outcome. Since it is unlikely that the Court would grant cert if the circuit court upholds the statute, this may turn out to be the fail safe option. In other words, if they win in the First Circuit, plaintiffs could win the case without any opinion from the Supreme Court. But the loss of Justice Kagan's vote, as well as of her participation in conferencing among the Justices, is likely to make that more difficult.

July 01, 2010

The CLS dissent: Justice Alito claims center stage

Everything about the CLS decision was smothered in the msm this week by the Court's decisions on the Second Amendment and the "honest services" fraud law (and of course the Kagan hearings); coverage of the dissent really got lost. But followers of lgbt law should pay attention to it, and not just because the dissenters fell only one vote short of a majority. Here are three other reasons:

  • Together with his apparently reluctant concurrence in Doe v. Reed, Justice Alito's opinion in CLS marks him as Justice Scalia's reliable wing man for negative intensity regarding lgbt issues;
  • The dynamic relationship between identity and viewpoint has become the heart of lgbt-related constitutional discourse; and
  • The positioning of social conservatives as an unpopular minority at risk of suppression produces their strongest arguments, both morally and legally, a precise inversion of the "moral majority" atmosphere of the 1980s, when they argued that AIDS was God's retribution against homosexuals.

Alito's the Man

Everyone expected that Justice Alito would be a reliable conservative vote on the Court, but no one knew how vehement he would be.  Now we know.  At least when it comes to lgbt issues, he's vehement.

And his sympathetic boss has taken notice. There could be many reasons why Chief Justice Roberts selected him to write the opinion of the four dissenters - here are two possibilities: to give him the ball and thus the opportunity for leadership in a field that he seems to care about quite a deal, and to give Justice Scalia some relief time on the bench, a break from being the only Justice who writes ripper dissents in these cases, a role he played in Lawrence and Romer.

The bad news is that Scalia Jr. has arrived.  The best news is that Justice Alito and Justice Kennedy disagree.

Viewpoint [v.] [and] [<-->] Identity

In the bad old days when Hardwick was still good law, lgbt rights lawyers
labored mightily at a pretty impossible task: trying to convince courts that there was a constitutionally significant distinction between the sexual conduct that gay people engaged in and their identity as gay (which I mean here to encompass lesbian and bisexual). When Lawrence was decided, especially because of its weaving together of privacy and equality language, that distinction bit the dust. To paraphrase Justice Kennedy, the distinction was incorrect when it was articulated and it is incorrect today.

But the conundrum of how to classify "gay identity" - a compound of expression, conduct, and belief as to the moral worth of honest sexuality - has not gone away nor gotten much easier, so long as one has to operate within the boxes of legal doctrine. The classification question doesn't matter much in life, but it can be decisive in law. If you flip the perspective to opposition to gay rights, you get the same conundrum from the opposite side. Are "anti-gay advocates" opposed to sexual conduct between two men or two women; or to pro-gay speech; or not to either but to the idea that homosexuality and heterosexuality are morally equivalent? Does it matter in life? Should it matter in law?

Justice Alito's opinion places CLS squarely in the third camp, and argues that unless CLS gets an exemption from the non-discrimination policy, its own right to express and argue for its beliefs will be violated. One rejoinder from the majority is that the non-discrimination policy prohibits the conduct of exclusion by a group receiving a form of public benefit, rather than the expression of belief. There are plausible arguments in support of both of these framings, and the difference between them is, at bottom, what created the 5-4 split among the Justices.

Which of these two conflicting minorities is entitled to the protection of the state?

Justice Alito gave voice to the cri d'coeur of CLS, which is that under the Hastings policy, gays get to be everywhere and we don't get to have our own safe space. Of course CLS could not be shut down because of their anti-gay views, nor could CLS be forced across the board to admit people who disagree with those views. Both of those actions by the state are, happily, inconceivable under the First Amendment. But does CLS get to exclude who it wants to and to participate in the Hastings system of recognized student organizations?

I phrased this third section's question as "entitled" because that word conveys both the issue of entitlement under the law and the more normative inflection conveyed by the same word. This decision, like any case before the Court, is about law; and Justice Alito begins his opinion by invoking the great mantle of the First Amendment's freedom to express "the thought that we hate." (The phrase comes from an opinion by Justice Holmes 81 years ago.) One of the reasons that strong First Amendment protections are often unpopular is because they serve to protect the expression of ideas that are widely (and often properly) vilified. (Think Nazis marching in Skokie.)

Almost the only victories in gay rights cases in the early stages of the movement were grounded in precisely this principle - judges, like everyone else, thought the idea of homosexuals expressing pride was virtually a joke, but the First Amendment saved us again and again. Now conservative Christians are seeking that same protection as an unpopular (in the context of Hastings) minority, as they have every right to do. And with that explicit legal claim comes their silent corollary claim for the moral high ground as the persecuted minority.


I side with the majority in this case: I think that the Hastings model of an all-comers policy is constitutionally permissible.  Whether that is the choice that I would make if I were running a law school is another question.

June 29, 2010

Supreme Court rejects preferential treatment for religious organizations (expanded)

By a 5-4 margin, the Supreme Court ruled in Christian Legal Society v. Martinez (2010 WL 2555187) that a UC-Hastings Law School policy of requiring all official student organizations to accept any student who sought to join was constitutional. The Christian Legal Society had argued that the so-called "all comers" policy violated its right of free association, because CLS excludes, inter alia, all gay people and anyone who engages in sex outside of marriage, based on the beliefs it advocates. There was a messy dispute over whether the all-comers policy was in fact applied evenhandedly, but CLS also argued that even if it was, religious groups should be exempt from its application. Justice Ginsburg wrote the opinion of the Court; there was a strong dissent by Justice Alito.

There were essentially two issues in the case: (1) whether an all-comers policy applied to every student group is constitutional as applied to CLS; and (2) whether the  policy that student groups cannot discriminate based on specified characteristics including sexual orientation (rather than a requirement that they allow any student to join)  - which is what CLS contended was the real reason they were denied recognition - is constitutional as applied to them. Unfortunately for CLS, its lawyers in the lower courts had stipulated that the Hastings policy was applied equally to every student group. Based on that, the Court reached only the first question.

It may seem obvious that the criteria for official recognition of student groups (and thus for eligibility for a variety of benefits) would have to be applied equally. But CLS argued that such an approach would have the effect of undercutting groups organized around a particular philosophy, and that such groups should be able to exclude students who disagree with that philosophy. And, indeed, that is the price of an all-comers policy: the student Democrats cannot keep right-wing Republicans from joining and seeking leadership positions, for example. The same principle applies to every group, and one among many applications would be that a student lgbt rights group could not keep out students who believe that homosexuality is immoral.

The Court noted that the advisability of an all-comers policy is different from its constitutionality. Such a policy obviously creates at least a hypothetical risk of hostile students hijacking an organization, but the question in this case was whether taking that risk in order to have a universally applicable rule was a reasonable option for a public university. (Private universities are not bound by the First Amendment.) The Court said yes, in large part because it rejected CLS's argument that an all-comers policy was covertly discriminatory, in that it discriminated against groups that wanted to disobey the non-discrimination rules. (Did you follow that?)

The decision does not mean that every other public university must adopt an all-comers policy. It does not mean that CLS will be barred from any presence on campuses even at schools that do. It means that CLS can constitutionally be denied the status of a recognized student group and the benefits related to that status. The Court analogized CLS to fraternities and sororities, entities that receive no financial aid from universities but which can participate in campus life in many ways.

Although the Court did not rule that an all-comers policy such as the one at Hastings is constitutionally required, I would expect that we will see more of them. Every law school has a non-discrimination policy that includes sexual orientation (it's required, with some exemptions for religiously-affiliated schools), and CLS has chapters at a lot of law schools.  (Not every CLS chapter adopts exclusionary policies.) For any dean, the Hastings model now has one very big advantage: it inoculates you against this kind of lawsuit.

What CLS really wanted to litigate was question #2. The argument they wanted to have was about whether a mandate of equal treatment regardless of sexual orientation could be enforced against a religious organization that professes the belief that homosexuality is immoral. Their goal was to press on the Court an extension of the ruling in Boy Scouts v. Dale that the Scouts could not be forced to obey a state anti-discrimination law in violation of its anti-gay beliefs. One critical distinction between this case and Dale is that the Hastings policy concerns only recognition; nothing stops CLS from continuing to operate independently without changing their practices, while the Scouts would have been forced to integrate. But CLS also argued that even if compliance with the non-discrimination policy would be constitutional as applied to other student organizations, they should be exempt because they were a religious group.

Because it did not have to, the Court did not reach question #2. However, Justice Stevens did.  In the last case on the last day that he will serve as a Justice, Stevens wrote a separate concurrence finding that a university non-discrimination policy enforced against CLS would be constitutional because it regulated the conduct of student groups, not their viewpoints, and that there was no basis for believing that Hastings had adopted it as a pretext for discriminating against conservative religious groups. Justice Stevens rather pointedly noted that "the dissent is willing to see pernicious antireligious motives and implications where there are none, [but] it does not seem troubled by the fact that religious sects, unfortunately, are not the only social groups who have been persecuted throughout history simply for being who they are."

And then there was Justice Alito's impassioned dissent, about which I will write separately, when I have more time.

June 28, 2010

A Supreme (Court) Monday: CLS decision to be announced, Kagan show goes live

Today at 10 am EDT the Supreme Court will announce decisions in the remaining cases for this term, one of which is Christian Legal Society v. Martinez (much background on this blog; start here). At 12:30 pm, the Senate Committee on the Judiciary will begin hearings on the nomination of SG Elena Kagan to be the next Justice.

Kagan2 There is a wealth of material on the web about Elena. SCOTUSblog has produced a series of issue papers about her positions on abortion, DADT, executive authority, and other topics, and also has an archive of media coverage.  You can find her answers to the Senate Committee's questionnaire, plus all of the materials released by the Clinton Library, all of her published writings and speeches, letters regarding the nomination, and all other documents in the public record at the Judiciary Committee website. The best single source imho is this ACLU report on her record and past positions.

Will she have any trouble getting confirmed? I don't think so. Conservatives are still trying to derail it - the Washington Times is opposing her confirmation on the grounds that she is "too political, too leftist, too inexperienced and too disrespectful towards existing law to be confirmed for the U.S. Supreme Court." I think - unless something really surprising comes up - it's a done deal. Elena is witty as well as smart, so some of the exchanges may at least be entertaining if not terribly consequential.

One important issue that may get no attention during the hearings is her position on sexual speech. It's a topic that the ACLU report discusses, but which had found no traction in the media until the last couple of days. Over the weekend, Politico's Josh Gerstein ran a post describing her presentation at an anti-pornography conference at the University of Chicago Law School in 1993, in which she expressed views sympathetic to suppression of sexually explicit speech. The speech led to an article in the issue of the law review based on the conference; however, according to Politico, the oral remarks were more emphatic in her expression of sympathy for a MacKinnon-inspired effort to find ways to curb some expression that currently has First Amendment protection.  As the ACLU report notes, although Kagan's publications reflect adherence to the principle of viewpoint and content neutrality, she (along with many others) apparently regards at least some sexual speech as so low value as to not merit inclusion under that umbrella. NB - Kagan does explicitly reject the kind of legislation that MacKinnon and the late Andrea Dworkin proposed in te 1980's as too censorial to be constitutional.

A lot of feminists (not including me) initially find MacKinnon's views more appealing than dangerous (to women's sexual speech, for example), and then later back off that position. Frankly, I think that this second look experience is why the MacKinnon approach has basically died as a serious idea, certainly within the U.S. I'm hoping that (probably soon-to-be Justice) Kagan will find herself taking a second look as well, if she hasn't already. FWIW, there's a letter supporting her nomination from an organization that she supported while Harvard Law dean - the Hip Hop Entertainment Law Project - that I hope signals at least a bit more openness to a variety of modes of expression.

We will all find out soon enough.

June 24, 2010

Supreme Court sends battle over release of petition signers' names back to lower courts

The Supreme Court ruled today in Doe v Reed that individuals who sign referendum petitions generally do not have a First Amendment right to remain anonymous.  But the Court also held that courts should consider the particular facts in any given case to determine whether anonymity is constitutionally required.

Blocking disclosure would be constitutional, the Court holds, "if there were a reasonable probability that the group’s members would face threats, harassment, or reprisals if their names were disclosed."

Reed arose when a group called Protect Marriage sought to block release of the names of those who had signed a petition to put R-71 - a measure to stop the implementation of a state domestic partners law - on the ballot. (Voters defeated R-71 in the 2008 election, allowing the partner registration system to take effect.) A generally applicable state public records law authorizes the release of the names and addresses of those who sign referenda petitions, and several pro-lgbt groups requested that information. (More background here and  here.)

Protect Marriage argued that individuals who oppose lgbt rights fear harm because of possible retaliation by lgbt advocates, and therefore should have their identities kept private. The Court ruled that release of names and addresses of petition signers was normally justified by the state's interest in protecting against election fraud, i.e., against individuals signing a petition multiple times and/or using forged or invented names.

The case will now go back to the lower courts for a determination of whether there is a reasonable probability that signers of this petition would suffer harm if their identifying information is released. Key to that assessment will be evidence that the fear of such harm is exaggerated or fabricated. An excellent amicus brief filed by Lambda Legal and several other lgbt organizations was before the Court in Reed, and was doubtless a factor in producing some of the strong language in the Sotomayor and Stevens opinions (see below).

Although the bottom line result was a lopsided 8 to 1 split among the Justices (Thomas dissented), the reasoning was fragmented. The opinion of the Court, written by Chief Justice Roberts, stressed that the state had ample justification for treating referendum petitions as releasable public records, absent a showing of special circumstances. Justice Scalia, on the other hand, concurred in the result but wrote separately to make clear that he believed that there never should be an exception made to the law providing for name disclosure.  Other concurring opinions favoring disclosure, and suggesting that this would hold true for the R-71 names, were written by Justices Sotomayor and Stevens.

Justice Sotomayor, joined by Justices Stevens and Ginsburg, wrote:

...[T]he process of legislating by referendum is inherently public. To qualify a referendum for the ballot, citizens are required to sign a petition and supply identifying information to the State. The act of signing typically occurs in public, and the circulators who collect and submit signatures ordinarily owe signers no guarantee of confidentiality. For persons with the “civic courage” to participate in this process, (opinion of Scalia, J.), the State’s decision to make accessible what they voluntarily place in the public sphere should not deter them from engaging in the expressive act of petition signing. Disclosure of the identity of petition signers, moreover, in no way directly impairs the ability of anyone to speak and associate for political ends either publicly or privately.

This three-some believes that persons seeking anonymity have to demonstrate that they face the kind of threats experienced by civil rights workers 50 years ago:

Case-specific relief may be available when a State selectively applies a facially neutral petition disclosure rule in a manner that discriminates based on the content of referenda or the viewpoint of petition signers, or in the rare circumstance in which disclosure poses a reasonable probability of serious and widespread harassment that the State is unwilling or unable to control. Cf. NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958). Allowing case-specific invalidation under a more forgiving standard would unduly diminish the substantial breathing room States are afforded to adopt and implement reasonable, nondiscriminatory measures like the disclosure requirement now at issue. Accordingly, courts presented with an as-applied challenge to a regulation authorizing the disclosure of referendum petitions should be deeply skeptical of any assertion that the Constitution,which embraces political transparency, compels States to conceal the identity of persons who seek to participate in lawmaking through a state-created referendum process.

Justice Stevens (joined by Justice Breyer) expresses even deeper skepticism:

Any burden on speech that petitioners posit is speculative as well as indirect. For an as-applied challenge to a law such as the [Public Records Act] to succeed, there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated bylaw enforcement measures. Moreover, the character of the law challenged in a referendum does not, in itself, affect the analysis. Debates about tax policy and regulation of private property can become just as heated as debates about domestic partnerships. And as a general matter, it is very difficult to show that by later disclosing the names of petition signatories, individuals will be less willing to sign petitions. Just as we have in the past, I would demand strong evidence before concluding that an indirect and speculative chain of events imposes a substantial burden on speech. A statute “is not to be upset upon hypothetical and unreal possibilities, if it would be good upon the facts as they are."

Justice Alito also concurred in the result, but would use a far more lenient standard to assess whether Protect Marriage should be given an exemption from the disclosure rule. Noting that the Court was quite sympathetic to the concerns of potential witnesses in Perry v. Schwarzenegger when it blocked the televising of the trial, Justice Alito wrote that:

The widespread harassment and intimidation suffered by supporters of California's Proposition 8 provides strong support for an as-applied exemption in the present case...[I]f the evidence relating to Proposition 8 is not sufficient to obtain an as-applied exemption in this case, one may wonder whether that vehicle provides any meaningful protection for the First Amendment rights of persons who circulate and sign referendum and initiative petitions.

The only Justice who did not write or join an opinion other than the opinion of the Court was Justice Kennedy.

In sum, this battle isn't over yet, although Protect Marriage will have to meet an extremely high standard to block the release of names. In my view, this is exactly the right result.  I would not have been comfortable with a ruling declaring that there could never be constitutional protection for keeping the identities of petition signers private. At the same time, four Justices make quite clear that they are suspicious that the manufactured hysteria over fear of gay retribution is just that.