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Posts for March, 2015

Libertarians on Equal Protections

Timothy Kincaid

March 10th, 2015

The Cato Institute, a libertarian think-tank, has filed its brief before the Supreme Court in support of marriage equality. In it, Cato seeks to show a distinction between original meaning and original understanding.

Some opponents of equality have taken an ‘original intent’ position and argued that the framers of the Fourteenth Amendment did not intend to include gay people in their promise of equality under the law.

Cato argues that the meaning of equality is the same and that their intent was, indeed, equality. They merely didn’t understand their meaning to include gay people at that time.

This is interesting in that they don’t throw ‘original intent’ out the window, but rather sees intent in terms of principle and objective rather than in terms of some list of people that the framers may have or may not have had in mind.

The lower court erred by focusing on a certain kind of original understanding (the immediate effect supporters “understood” the Fourteenth Amendment to have). This Court has rejected that approach to constitutional interpretation, focusing instead, on original meaning. … In the Fourteenth Amendment context, this Court has asked how the well-established meaning of terminology added to the Constitution in 1868 applies to modern exclusions of new as well as established social groups.

Laws can and must have consequences beyond those understood or anticipated by the generation of their promulgation. … As one prominent originalist scholar recently put it, original-meaning originalism “is entirely consistent with updating the application of its fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision.”

And rather than rely on speculation about intent as imagined by pundits or certain Supreme Court justices, they turn to the language of the framers:

Contemporaries explained the meaning of the Equal Protection Clause in precisely this way. Introducing the Fourteenth Amendment, Senator Jacob Howard said that the Equal Protection Clause “establishes equality before the law, and . . . gives to the humblest, the poorest, and most despised . . . the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.” The clause plainly “abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another.” Cong. Globe, 39th Cong.,1st Sess. 2766 (1866) (Sen. Howard); see id. at 2961 (Sen. Poland) (similar). House Speaker Thaddeus Stevens explained that the public meaning of the clause was that “the law which operates upon one man shall operate equally upon all.” Id. at 2459 (emphasis in the original).

The Fourteenth Amendment was not an amendment to give rights to black people, but rather an amendment to prohibit legislatures from establishing castes of people with varying laws and benefits by class. Irrespective of how well that worked, that was its original intent.

Their blog commentary may put it in more approachable terms

Essentially, the Equal Protection Clause means, in 1868 as in 2015, exactly what it says: states cannot have one set of laws for the rich and another for the poor, separate schools for white and black students, or marriage licenses only for opposite-sex couples.

More on the amicus briefs

Timothy Kincaid

March 7th, 2015

The plethora of amicus briefs have now been filed encouraging the US Supreme Court to find that anti-gay marriage bans violate the Equal Protections and Due Process provisions of the US Constitution. They included

Mayors for the Freedom to Marry. This brief was signed by the 229 mayors from the nation’s largest cities to tiny burgs, from cities with vastly different racial, religious, and cultural heritage, by Republicans and Democrats, along with several dozen towns that signed on.

Corporations. Leaders of the nation’s largest corporations circulated a brief which garnered support from the Who’s Who of business. Most of the names you would expect to see – such as Apple, Microsoft, Target and Wells Fargo – are there. But also included in the 379 names are some less obvious supporters like Alcoa, New England Patriots, and ConAgra Foods.

Project Right Side. Ken Mehlman circulated the brief obtaining support from Republicans, Libertarians and other conservatives. Among the 300-plus signatures are some expected names: Massachusetts Governor Charlie Baker, Senator Susan Collins, and Congresswoman Ileana Ros-Lehtinen. Other names were less expected, such as Meg Whitman, who did not support equality while running for California Governor in 2010, Andrea Saul, Mitt Romney’s press secretary, and Former Michigan Attorney General Mike Cox, the guy who hired Andrew Shirvell. They range from longtime supporters to newly evolved to some I assumed were foes of equality.

Mark your calendar, we’re going to court

Timothy Kincaid

March 5th, 2015

The Supreme Court of the United States has announce that it will hear arguments on the constitutionality of same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee on April 28th at 10:00 am (EST).

We will want to pay close attention to the direction of the questions as that may give us a hint as to the outcome.

I’m still betting on a 6 to 3 positive ruling.

House GOP won’t be involved in SCOTUS marriage hearing

Timothy Kincaid

February 5th, 2015

boehner

In Spring of 2011, President Obama and Attorney General Holder announced that the US Justice Department would no longer provide legal defense of the Defense of Marriage Act (Section 3) in federal court challenges, as they found it to violate the provisions of the US Constitution. The US Senate also declined to present a defense of the law.

The US House of Representatives, under the leadership of Speaker of the House John Boehner, hired legal representation and provided defense of the law. After several battles, the case came before the Supreme Court of the United States, and in June 2013 Section 3 of DOMA was held to be unconstitutional.

At that time, Republican leadership in Washington relinquished defense of DOMA and declared the matter settled. Boehner indicated that his body would not be engaging in efforts to argue the merits of other statutes or laws in regards to marriage but would act under the presumption that the Supreme Court had made its intent known.

And, for all practical purposes, the issue of same-sex marriage has been a settled one in the Nation’s Capital. It took a while for the administration to identify all areas in which discrimination continued, but the remedies did not face organized opposition.

Continuing in that state of mind, Boehner has now determined that the House will not interfere in the marriage ban appeal now before the Supreme Court nor will the GOP leadership seek to influence its decision. His language also suggests that he will not entertain notions about the invalidity of the court’s ultimate decision. (Blade)

“I don’t expect that we’re going to weigh in on this,” Boehner said. “The court will make its decision and that’s why they’re there, to be the highest court in the land.”

Of course individual GOP members are likely to file an amicus brief supporting discrimination, and some may do so jointly. But they will not do so under the authority of the House of Representatives.

U.S. Supreme Court to Hear Four Marriage Cases

Jim Burroway

January 16th, 2015

The U.S. Supreme Court has agreed to hear the four marriage cases in which the Sixth Circuit turned back an effort to bring marriage equality or marriage recognition in Kentucky, Michigan, Ohio and Tennessee. According to today’s order: (PDF: 43KB/2 pages) the Court intends to keep the arguments focused on two narrow questions:

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions. The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015. The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015. The reply briefs are to be filed on or before 2 p.m., Friday, April 17, 2015.

Lyle Denniston at SCOTUSblog believes that oral arguments may take place in late April with a final ruling “probably in late June.” He adds:

Although the Court said explicitly that it was limiting review to the two basic issues, along the way the Justices may have to consider what constitutional tests they are going to apply to state bans, and what weight to give to policies that states will claim to justify one or the other of the bans.

SCOTUS drops Louisiana appeal

Timothy Kincaid

January 12th, 2015

Among the marriage case appeals under consideration last Friday was Robicheaux v. George, in which U.S. District Judge Martin Feldman had found that the state of Louisiana had a “legitimate interest” in prohibiting same-sex couples from marrying. The plaintiffs appealed to the Fifth Circuit Court of Appeals, but also appealed to the Supreme Court to hear the case before the circuit court decision.

The Supreme Court has now announced that it will not be hearing Robicheaux at this time. This is likely not detrimental to the cause of marriage equality, as the case was heard last week by the Fifth Circuit, and nearly all observers predict that the ruling will be overturned by that court.

SCOTUS has also announced that the four cases in which the Sixth Circuit upheld discrimination will be considered at their conference this Friday. As it stands, if any marriage cases are taken up by the court this year, it will be those in which laws singling out gay people for exclusion have been upheld.

No SCOTUS marriage announcement today

Timothy Kincaid

January 9th, 2015

The Supreme Court met today to determine which cases they will accept this year. Among those in consideration were the marriage cases from the Sixth Circuit (Michigan, Ohio, Kentucky, and Tennessee) and Louisiana.

The Louisiana case (which was also heard this morning in the Fifth Circuit Court of Appeals) is one of the few since the Windsor case in which a federal judge has ruled against equality. The Sixth Circuit is the only appellate court, to date, to rule in favor of anti-gay bans on marriage.

There was some expectation that the Supreme Court would release it’s decision to hear one or all of these cases today. However, no such decision has been announced.

This does not mean that the court will not hear any of these cases. Further announcements will be made Monday and could be made any time before the end of the month. The possible outcomes of today’s deliberation could be:

  • That none of the cases are heard. This would leave the nation divided as to whether the US Constitution allows legislation and state constitutional provisions designed to disadvantage gay citizens and deny them equal status under the law. This is unlikely.
  • That one or all of the cases are heard. This would result in another argument before SCOTUS which would probably answer the question once and for all. Marriage equality supporters predict that the court would rule that anti-gay laws are disallowed by the either the Due Process or Equal Protections provision of the US Constitution (or both).
  • That the court reverses the ruling of the Sixth Circuit outright. While this is not terribly likely, it would be very fitting in that it would treat bigotry with the same measure of cavalier distain that it treated equality 44 years ago in the Baker case.

SCOTUS marriage decision looms

Timothy Kincaid

December 23rd, 2014

The Supreme Court has scheduled January 9, 2015, as the date on which to consider whether to hear appeals in five marriage cases. The states from which these cases originate are Tennessee, Kentucky, Ohio, Michigan and Louisiana.

In Louisiana a federal judge ruled to uphold the anti-gay marriage ban, and the other four are in the Sixth Circuit, where the appeals court overturned federal judges who had ruled for equality.

We will not know until next month whether SCOTUS will hear any marriage appeals, but if they do so, it will only be those which are requesting that marriages be allowed. In other words, the court has not scheduled for hearing any appeals which could reverse a state’s current practice of allowing same-sex marriage.

I think that this, when taken with past appeal and stay decisions, may suggest a predisposition on the part of the court to move in the direction of equality.

However, the court has also illustrated a lack of willingness to rule directly on the issue. And this brings up another possibility – though probably not a likely one.

On January 9th – or some point thereafter – the court could take steps to reverse the Sixth Circuit decision without taking up appeal. They could return the cases from Kentucky, Tennessee, Ohio and Michigan to the Sixth Circuit Court of Appeals with instruction that the court more carefully consider or weigh some aspect of the case.

But whichever direction they go, it now seems encouraging that next month will prove to be a rather big step (likely forward) in the marriage movement.

Did SCOTUS just bless heightened scrutiny?

Timothy Kincaid

October 10th, 2014

When Idaho presented its brief explaining why the Ninth Circuit’s ruling overturning the state’s ban on same-sex marriage, it focused on one point. Rather than argue the same tired arguments that have lost across the country and which were insufficient to merit certiorari in the Fourth, Seventh, and Tenth Circuits, Idaho argued that it was the reasoning used in the Ninth, rather than it’s conclusion, which should be reconsidered.

On Tuesday, the Ninth Circuit included in its ruling:

Without the benefit of our decision in SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014), reh’g en banc denied, 759 F.3d 990 (9th Cir. 2014), the Sevcik district court applied rational basis review and upheld Nevada’s laws. Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012). After we decided SmithKline, the Latta district court concluded that heightened scrutiny applied to Idaho’s laws because they discriminated based on sexual orientation, and invalidated them. Latta v. Otter, No. 1:13-CV-00482-CWD, 2014 WL 1909999, at *14–18 (D. Idaho May 13, 2014). We hold that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline.

When the Ninth Circuit decided SmithKline, Abbott Labs chose not to appeal the ruling, specifically because it was their wish to leave the section on heightened scrutiny as precedent and not subject it to potential loss at the Supreme Court. So this assertion by the Ninth has not been considered by the higher court.

Which brings the denial of extended stay by the Supreme Court into a different light. It may be that SCOTUS did not predict any likelihood of Idaho’s ban being upheld irrespective of the degree of scrutiny. Or it may mean that SCOTUS sees no likelihood of the Ninth’s application of heightened scrutiny being reversed.

SCOTUS allows marriage wins

Timothy Kincaid

October 6th, 2014

fireworks

The Supreme Court of the United States has just denied certiorari to the appeals by states from three circuit districts. (ABC)

The Supreme Court cleared the way Monday for an immediate expansion of same-sex marriage by unexpectedly and tersely turning away appeals from five states seeking to prohibit gay and lesbian unions. The court’s order effectively makes gay marriage legal in 30 states.

Without comment, the justices brought to an end delays in same-sex marriages in five states— Indiana, Oklahoma, Utah, Virginia and Wisconsin.

In addition to those five states, in which marriage equality will immediately become law, the other non-marriage states within those circuits are but a formality away. Filing for equality in federal court in states within the Fourth, Seventh, and Tenth districts should result in an immediate favorable decision for West Virginia, North Carolina, South Carolina, Colorado, Kansas, and Wyoming.

The question of the constitutionality of anti-gay marriage bans generally has not yet been determined. SCOTUS could take up other districts’ appeals should they reach the court.

However, it should be noted that the decision to grant or deny certiorari is not a majority vote. It takes but four justices to decide that a court will hear an appeal. This suggests that either the conservative end of the court is hoping to wait for an appeal that better fits their opposition, or (despite long supposition otherwise) there are not four justices on the Supreme Court that oppose marriage equality and find it’s prohibition to be within the confines of constitutional enactment by the states.

The denial of cert to the three districts is not, as I noted, immediately determinative on the other districts. However, it does provide strong legal precedent – unless and until the court indicates otherwise – leaving it difficult for district judges to conclude gay marriage bans have constitutional merit. And, though it is no longer given much attention, it completely invalidates Baker v. Nelson as an argument for precedent.

At this point, it looks promising that marriage may soon come to all states.

Do they even listen to what they say?

Timothy Kincaid

May 13th, 2014

Dean Nelson

Today the Fourth Circuit Court of Appeals heard arguments for and against overturning Judge Arenda L. Wright Allen ruling that Virginia’s gay marriage ban was in violation of the US Constitution (the Olson-Boies case). There were, as expected, protesters on either side.

The anti-gay side made some interesting remarks.

Dean Nelson, chairman of the Frederick Douglass Foundation, told the crowd, “Things have gotten so bad that even when you’re watching ESPN on Mother’s Day we have the kisses of homosexuals forced down our throats.”

Sometimes it’s just too easy.

SCOTUS issues Utah stay (Updated)

Timothy Kincaid

January 6th, 2014

NYTimes

The Supreme Court on Monday blocked further same-sex marriages in Utah while state officials appeal a decision allowing such unions.

The terse order, from the full court, issued a stay “pending final disposition” of an appeal to the federal appeals court in Denver. It offered no reasoning.

UPDATE from Jim B: Here’s the U.S. Supreme Court order (PDF: 27KB/1 page):

HERBERT, GOV. OF UT, ET AL. V. KITCHEN, DEREK, ET AL.

The application for stay presented to Justice Sotomayor and by her referred to the Court is granted. The permanent injunction issued by the United States District Court for the District of Utah, case No. 2:13-cv-217, on December 20, 2013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.

Marriages entered into thus far are still in effect. There just won’t be any new ones for a while. Lyle Denniston at SCOTUSblog speculates that “The order appeared to have the support of the full Court, since there were no noted dissents,” but “The order, however, cannot be interpreted as a dependable indication of how the Court will rule on the issue when it finally decides to do so directly.”

The Tenth Circuit Court of Appeals will continue with its expidited review of the lower court decision. Brief submittals occur between January 27 and February 25. No date has been set for oral arguments.

No DOMA or Prop 8 rulings today

Timothy Kincaid

June 20th, 2013

The Supreme Court did not deliver rulings on the constitutionality of the federal Defense of Marriage Act or California’s Proposition 8 today. The next date for the announcement of rulings is Monday, June 24.

Monday is the last scheduled day of this year’s calendar, though the Supreme Court could schedule another day of their choosing. And while such an additional day would be expected to be within the week, as SCOTUS has neither a boss nor any constitutional restrictions, they could drag this out as long as they wish.

Marriage equality unlike Roe

Timothy Kincaid

June 10th, 2013

Some anti-gay activists have warned that a broad decision on marriage equality would have the same sort of cultural division and long-term social protest that has been the result of the decision on Roe v. Wade. James Richardson, a GOP “conservative communications strategist”, writes in the Christian Science Monitor on why that is not so.

The evolution of public opinion concerning the right to marry for gays and lesbians, too, follows a divergent track from abortion. Whereas the public sentiment on abortion has remained largely static since the Roe ruling 40 years ago, an uncommonly decisive shift in attitudes in recent years concerning gay marriage has radically reorganized the political landscape.

The support for same-sex marriage recently reached a record high, at 58 percent in a March survey by ABC News and The Washington Post. That number represents a 26-percentage-point growth over the span of just nine years. And in those 12 states where same-sex marriage is already legal, the support trend line is even more pronounced. In the few months since the Supreme Court heard oral arguments on gay marriage, three states changed their laws to afford equal rights and protections for gay marriage.

I’ll tell you when, Justice Scalia

Timothy Kincaid

March 26th, 2013

JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future.

We — we decide what the law is. I’m curious, when — when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

Scalia rants as though there is no date, as though this is all arbitrary and subjective and up to some whimsical liberal social ‘living constitution’ interpretation of law. He is mistaken.

There is a date, a specific date, upon which it became unconstitutional under the provisions of the US Constitution to exclude homosexual couples from marriage.

On the day, the very first day, that a same-sex couple decided that they would avail themselves of the equal provisions of their governmental contract and seek the protections afforded by marriage, and on the very first day that this same-sex couple was told that, no, they were excluded – explicitly excluded – from the protections offered by the state because they were an unfavored people, on that specific day, Justice Scolia, the state acted in an unconstitutional manner.

Yes, the Supreme Court of the United States “decides what the law is”. But the wording of our contract – our agreement with the Federal Government that they may govern us and patrol our liberties and, at times, curtail our freedoms when necessary – is not decided by the Supreme Court of the United States. And that wording, that guarantee, allows the Federal Government to serve as our representative government only within certain confines, among which are that all citizens are provided with the same rights.

That provision exists either with or without social recognition. It exists whether or not a Supreme Court “decides” that it is the law.

It is inevitable that some day the Court will recognize – not decide – that gay citizens are equal citizens and that arbitrary animus-based discrimination such as that which Justice Scalia defends is a violation of our national contract. And some day, a Supreme Court will decide that the law is such that discrimination based on sexual orientation is a gross violation of the clear provisions of the US Constitution.

But that will not be the day in which such discrimination becomes unconstitutional. That day has passed.

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