Posts Tagged As: Supreme Court of the United States

Prop 8 Appeal

Timothy Kincaid

December 6th, 2010

Today the Ninth Circuit Court of Appeals heard arguments as to the constitutionality of Proposition 8 and arguments as to whether there is anyone with standing to defend the proposition. We do not know the eventual outcome, but here are my general impressions.


When the Proponents for Proposition 8 filed their appeal, they seemed to admit that their claim of standing was shaky. And they put a lot of reliance on the ability of the deputy clerk of Imperial County to provide standing for them.

Because the Imperial Intervenors should have been permitted to intervene, and because as intervening defendants bound by the district court’s judgment they would have standing to appeal, this Court need not reach the question of Proponents’ standing at this time.

It appeared that their entire hopes of arguing the constitutionality of Proposition 8 lay in, get this, the deputy clerk of one county. At the time I wondered at the wisdom of arguing that the deputy clerk was injured by the case; surely her job is not to make determinations as to whether anyone can marry, but rather to follow the instructions of those who do have authority, in this case either the State Registrar or perhaps even the County Clerk. And this was a point that was not lost on the appellate judges.

Adding to the difficulties for the County, Robert Tyler, the attorney arguing on their behalf was inept. At one point the judges told him that if he didn’t know the answer to a question that he should just say so.

The case for standing for the Proponents was given by Charles Cooper, who based his arguments on Karcher v. May, a New Jersey case which predated Arizonans for Official English. Arizonans was the closest in case law and it seems to suggest that Proponents do not have standing.

The law wasn’t really there for them, so it seems that the supporters of Proposition 8 are arguing mostly that it just isn’t fair for the Governor and Attorney General to “nullify” the vote of the people by refusing to appeal the Trial Judge’s decision, a plea that seems to have found sympathy with Judge Smith.


Coopers arguments that the state has a rational cause to discriminate against same-sex couples was not received with open arms. All three judges seemed aware that discrimination was occurring, was intentional, and that a basis for the discrimination required some ‘splaining. It remains to be seen if Cooper was adequately credible.

Judge Hawkins questioned whether Prop 8 would not be subjected to the same standard as Colorado’s Amendment 2 which was thrown out. Cooper argued that Amendment 2 was too broad and sweeping where Prop 8 only takes away one right. Hawkins seemed unconvinced that constitutionality was determined by the number of rights that were denied.

And the ol’ “responsible procreation” argument didn’t really stand up well. Judge Reinhardt noted that Cooper’s arguments were stronger for banning divorce than for banning same-sex marriage.

And when it was noted that California did nothing whatsoever in the realm of “encouraging responsible procreation” by discouraging civil unions, Cooper was left arguing that it’s only the word “marriage” that has to be protected to encourage responsible procreation of heterosexuals that may accidentally become pregnant if they have sex while not married. “To redefine the word is to change the institution.”

The soul of Cooper’s argument is to ignore the impact that the word used to describe the recognition given to same-sex couples will have on those same-sex couples, and to instead insist that it will most seriously impact heterosexuals who are not in committed relationships.

That is, on its face, rather difficult to treat credibly.

All in all, marriage equality held its own in the courtroom today. Animus did not fare so well. It’s impossible to predict such things, but I think that today gave us much to be hopeful for.

Prop 8 appeal today

Timothy Kincaid

December 6th, 2010

At 10:00 am (Pacific Time), three judges of the Ninth Circuit Court of Appeals will hear oral argument about whether Proposition 8 is a violation of the equal protections and due process clauses of the US Constitution. But first, they will hear argument about whether there is anyone who is legally entitled to defend Proposition 8, now that the Governor and Attorney General have chosen not to appeal Judge Walker’s decision.

You can follow the case on CSPAN.

Courage Campaign is liveblogging. I’ll provide my thoughts and opinions later.

Log Cabin appeals to Supremes

Timothy Kincaid

November 5th, 2010

Earlier this week, the Ninth Circuit Court of Appeals granted the Administration’s request to put a permanent stay on Judge Phillips’ ruling which found the Don’t Ask, Don’t Tell policy to violate the US Constitution. The Military will be able to continue to discharge gay and lesbian servicemembers until such time as the Appeal is determined.

Log Cabin Republicans didn’t accept that decision as final and have instead filed an emergency request to have the stay lifted. (CNN)

The Log Cabin Republicans filed an emergency request with the nation’s highest court to reverse the Ninth Circuit Court of Appeal decision to allow the military to continue with “don’t ask, don’t tell,” while the government appeals the lower court ruling that the law is unconstitutional.

The high court appeal– “called an “application” — is now in the hands of Justice Anthony Kennedy. He will likely ask his eight colleagues to help him decide and order the federal government to weigh in with its views before a decision is made.

Alternately, Kennedy could decide on his own. In any case, while continuing the stay may say nothing about the ultimate position of Supreme Court Justices, a lifting of the stay could tell us a great deal.

Filing after the break

Read the rest of this entry »

Scalia: gays and women not included in “any person”

Timothy Kincaid

September 20th, 2010

Supreme Court Justice Antonin Scalia believes that women and gay people are not protected by the constitution from state mandated and enforced discrimination. (SF Chronicle)

The U.S. Constitution does not outlaw sex discrimination or discrimination based on sexual orientation, Supreme Court Justice Antonin Scalia told a law school audience in San Francisco on Friday.

“If the current society wants to outlaw discrimination by sex, you have legislatures,” Scalia said during a 90-minute question-and-answer session with a professor at UC Hastings College of the Law. He said the same was true of discrimination against gays and lesbians.

Scalia, a proponent of “originalism” believes that it doesn’t matter what the words of the Constitution say or even what a logical and consistent application would yield. Rather, it is what was in the minds of the white men who drafted that wording which matters.

And Scalia believes that when they wrote

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

they clearly did not intend for “any person” to include women or gay persons. So I guess we know how he’ll be voting in the upcoming cases which deal with the equality of gay citizens.

Since the “original intent” is required for Scalia to find that the US Constitution protects women and gay people, perhaps we should provide him with some original intent. Maybe Scalia would find it more convincing if Congress and the States amended the US Constitution to put the words “any person” in bold font.

Court hearing doesn’t go well for Washington anti-gay petition signatories

Timothy Kincaid

April 28th, 2010

Last year anti-gay activists in Washington State collected signatures to get a referendum on the ballot challenging the legislature’s domestic partnership laws. The people subsequently voted to keep the laws recognizing gay couples.

But one of the issues that arose from that action was the question as to whether signatures on petitions – specifically anti-gay petitions – were public information or or protected anonymous political speech. Supporters of the petition argued that they were skurrrred of the evil gays who might take their business to a more supportive company or might frown at them in the supermarket.

And so a judge blocked the releasing of the info. The Secretary of State appealed the decision arguing that the State had an interest in open air laws. The decision was overturned, appealed again, and now is being argued in front of the Supreme Court of the United States. Anti-gay activists want all public disclosure laws declared to be unconstitutional and to conduct their animus behind the veil of anonymity.

But today did not go well for them. Justices, including at least one who is inclined to be sympathetic to conservative causes, were not much impressed by their arguments. (AP)

Several justices questioned whether people who voluntarily signed a petition asking for a public referendum could then expect privacy. They were concerned that keeping the names of petitioners private might invalidate other vital open records like voter registration rolls or lists of donors to political candidates.

“Running a democracy takes a certain amount of civic courage,” said Justice Antonin Scalia, who also called the arguments to keep the names private “touchy-feely.”

On the other hand, Justice Alito was there to go to bat for the anti-gays.

But Justice Samuel Alito questioned Washington’s attorney general, Robert McKenna, on whether his office was willing to give out the home address of its lawyers so people could show up and have “uncomfortable conversations” with them after-hours.

McKenna said office addresses and telephone numbers of his lawyers were public.

But Alito appeared to be in the minority (Wall Street Journal)

Justice Ruth Bader Ginsburg questioned the relevance of that precedent. She and Justice Sonia Sotomayor suggested that making public the names of petition signers could allow people to verify whether the signatures were real.

Chief Justice John Roberts suggested the court was unlikely to strike down the law on its face, but might find that in some circumstances names should be withheld if the signers could show they faced a threat.

I would hope that this would be a real threat, not an irrational fear based on imagined concerns.

LA Times’ Oliphant discusses SCOTUS and religion

Timothy Kincaid

April 22nd, 2010

A few weeks ago, I noted that with the retirement of Justice John Paul Stevens, the Supreme Court of the United States would no longer have a Protestant Christian as a member. Now James Oliphant, writing for the LA Times discusses the same.

He reports that many observers dismiss the importance of religious diversity. And he quotes one of the few Justices who discuss the matter

Scalia, one of the few justices who have spoken about the role of Catholicism in their deliberations, has done so largely as a means of reconciling his faith with his votes to uphold death sentences. He has said that any Catholic judge who believes the death penalty is immoral should resign.

But he has emphasized that his faith has had little effect on how he views his role as a judge.

“I am hard-pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic,” he said in a 2007 speech.

How very odd. I could probably identify dozens in which Scalia’s faith-system dictated his position.

Obama’s “Short List” pick for SCOTUS might be anti-gay marriage

Timothy Kincaid

April 12th, 2010

ABC News is reporting that President Obama has at least one person on his “short list”:

As speculation swirls about candidates on the president’s list, administration officials have confirmed that at least one of the president’s top picks is a former State Supreme Court justice who would be the first African-American woman to sit on the country’s high court.

Former Georgia Supreme Court Justice Leah Ward Sears, an expert in family law and the first African-American woman to serve as a State Supreme Court chief justice, was on Obama’s short list last year. A member of the left-leaning American Constitution Society, she is also a friend of conservative Justice Clarence Thomas.

While Sears is believed by some to be gay-supportive, her true passion is as an advocate for (heterosexual) marriage. And, as such, she has made statements, built alliances, and contributed to efforts in the past which suggest that she may not completely value equality for our community.

Writing in a Washington Post op-ed in October 2006, Sears made “the case for marriage”. And she identified allies in her quest to have people “get married, stay married”.

I am not alone. For example, “Reconceiving the Family,” a new book published by Cambridge University Press critiquing the ALI’s “principles,” has contributions from 27 family law scholars, including two other state supreme court chief justices. The Institute for American Values recently published a statement, signed by many legal and family scholars, that concluded that “a prime goal of family law should be to identify new ways to support marriage as a social institution so that each year more children are protected by being raised within the marital unions of their parents.” Moreover, the supreme court in my state just established a Commission on Children, Marriage and Family Law with an important goal: to find ways to reduce unnecessary divorce and unmarried childbearing. [emphasis added]

If the Institute for American Values sounds familiar, it is because it is the brainchild of David Blankenhorn, the chief witness on the anti-gay side in Perry v. Schwarzenegger. The book Reconceiving the Family is available at his site, and the following is from the synopsis of the statement that Sears commends:

Unfortunately, the recent trend in family law as a discipline and practice has been just the opposite. Family law as a discipline has increasingly tended to commit two serious errors with regard to marriage: (a) to reduce marriage to a creature of statute, a set of legal benefits created by the law, and (b) to imagine marriage as just one of many equally valid lifestyles. This model of marriage is based on demonstrably false and therefore destructive premises. Adopting it in family law as a practice or as an academic discipline will likely make it harder for civil society in the United States to strengthen marriage as a social institution.

As scholars and as citizens, we recognize a shared moral commitment to the basic human dignity of all our fellow citizens, black or white, straight or gay, married or unmarried, religious and non-religious, as well as a moral duty to care about the well-being of children in all family forms. But sympathy and fairness cannot blind us to the importance of the basic sexual facts that give rise to marriage in virtually every known society: The vast majority of human children are created through acts of passion between men and women. Connecting children to their mother and father requires a social and legal institution called “marriage” with sufficient power, weight, and social support to influence the erotic behavior of young men and women.

We do not all agree on individual issues, from the best way to reform unilateral divorce to whether and how the law should be altered to benefit same-sex couples. We do agree that the conceptual models of marriage used by many advocates are inadequate and thus contribute to the erosion of a marriage culture in the United States. We seek to work together across the divisive issue of gay marriage to affirm the basic importance of marriage to our children and to our society. We call on all the makers of family law—legislators, judges, the family law bar, and legal scholars who create the climate in which other players operate—to develop a deeper understanding of and commitment to marriage as a social institution.

A prime goal of marriage and family law should be to identify new ways to support marriage as a social institution, so that each year more children are protected by the loving marital unions of their mother and father.[Emphasis added]

It is immediately obvious that whatever values are being discussed and whatever disagreement there may be over “whether and how the law should be altered to benefit same-sex couples”, there was absolute agreement that same-sex marriages are “destructive” and “contribute to the erosion of a marriage culture.” In fact, by the time that Sears commended Blankenhorn, he had become best known for his opposition to marriage equality.

Sears has also teamed up with Blankenhorn to sponsor his marriage debates with Jonathan Rouch, and to further the visibility of her own campaign to support heterosexual marriage. (

Chief Justice Leah Ward Sears said that the 48-foot-wide, 14-foot-tall billboards are one of the few things a jurist can do to battle high crime rates, high divorce rates and low numbers of fathers raising their kids.

Along with the “Get Married, Stay Married” slogan, each sign shows a happy-looking mother, father and child and one of two messages: “Children do better with parents together” or “For Children’s Sake.”

“We paid $50,000 to get about $500,000 worth of billboard space to send this vital message,” Sears said, noting that the costs of the billboards themselves were paid by the Georgia Bar Foundation and “not state money.” The billboard space was donated by the Outdoor Advertising Association of Georgia, which donates unused billboard space to charitable, civic and governmental organizations.

Sears’ comments came in an interview last week at a more substantive part of her crusade — a two-day conference on marriage for about 250 lawyers, social workers, clergy people and therapists. The event was sponsored by the high court’s commission and the New York-based Institute for American Values, which calls itself a “private, nonprofit, nonpartisan organization that contributes intellectually to strengthening families and civil society in the U.S. and the world.”

While Sears appears to value Blankenhorn and his premises, she has been coy on her own position on the issue. Opponents of Sears claimed that she supported gay marriage in an effort to discredit her elections, but this is not immediately evident from her writing.

Writing in the New York University Law Review in 2007, she said

Finally, before I go any further, I would like to comment briefly on the scope of this Lecture, particularly as it relates to the subject of same-sex marriage. This topic remains a deeply polarizing one for large numbers of Americans, regardless of their sexual orientation. If I were to stake out a legal position on this subject, my comments would hopelessly overshadow anything else I might say about marriage and family fragmentation. More importantly, it would be inappropriate for me, as a sitting judge, to do so. Therefore, this Lecture addresses the more basic question of whether the law should support marriage as an institution at all. The national debate over same-sex marriage raises a host of important issues, and those issues must ultimately be resolved. But as we struggle to work out a consensus, we must not put off the job of reflecting on marriage as we now have it.

Yet one cannot read any of her perspectives on marriage without immediately recognizing that Sears believes that 1) marriage is about children, 2) parents are defined as the natural biological father and the natural biological mother, 3) biological mother/father/child families deserve preference, and 4) other socially recognized structures are destructive to the special status that heterosexual marriage deserves.

We do not, of course, know the extent to which her personal views will color her decisions. But we do know that in 2006, her positions on the constitutional ban on same-sex marriage in the State of Georgia left her on both sides of the issue.

She (and one other justice) opined that the one-sentence amendment was too vague to be put on the ballot because it did not adequately warn voters that civil unions were also being banned. Yet, after the election when a judge struck down the amendment, she voted with the rest of the Georgia Supreme Court to reinstate the ban.

More may come up on Judge Sears which will alleviate my concerns. But until it does, I am troubled by her perspectives on marriage, family, and children and fear that she may prove on the Highest Court to be a life-long opponent to marriage equality.

(hat tip to reader Matt, who brought this to our attention)

Supreme Court loses its last Protestant

This commentary is the opinion of the author and does not necessarily reflect that of other authors at Box Turtle Bulletin.

Timothy Kincaid

April 9th, 2010

John Paul Stevens, the US Supreme Court’s oldest and longest-serving justice, has announced that he will retire. And the President is undoubtedly already weighing potential replacements.

It is likely that President Obama will place diversity as a desirable attribute. The court currently contains its first (modern) Hispanic jurist, second African American jurist, and both second and third female jurists; for most of its history, the court has been comprised of white men. A candidate that further advances racial or gender diversity will be seen as a potential voice for excluded Americans.

Some may wonder if it is time for a gay or lesbian nominee. While I would love to think that possible, I doubt that this President will appoint a gay Supreme Court justice. Yet even the discussion over the possibility is good for our community.

But one thing I hope that this president considers – that will not likely get much attention – is religious diversity. Currently, the court has six Roman Catholics, two Jews, and the sole Protestant is Stevens who is now retiring.

This matters.

A great many cases that come before the SCOTUS involve issues of religious freedom or religious views. And Christianity is the dominant religion in this country.

But having only one brand of Christianity on the court yields only one perspective on what “Christianity” means. Even the most liberal of Catholics accepts as normal certain ideas that most Protestants reject. And without a Protestant voice on the court, the religious assumptions of the majority of Americans goes unstated.

As recent cases have revealed, the “orthodox Christian view” about homosexuality is relevant to whether laws are based in tradition and faith or in bigotry. In the Perry v. Schwarzenegger trial, denominational stances were cited as evidence of a lack of (or presence of) animus. But if the only Christians on the court come from a faith that values hierarchy, church tradition, and doctrine handed down from a central authority, then testimony from affirming churches can seem rogue or heretic.

So without Stevens, the presumptions about Christianity on the court will be limited to those that come from being raised in (or converted to) Roman Catholicism. And I do not think that this is healthy and I hope that Obama considers this when making his final cut.

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