Some thoughts on the Massachusett and Gill appeals ruling
May 31st, 2012
Some initial thoughts upon reading the ruling (supplemental to Jim’s excellent write-up)
1. “…the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings.”
You can almost hear the sarcasm dripping off the page of the ruling. Basically, he’s saying that it’s hard to assess the rationale when there was little rationale at all. Later Boudin rejects the presumption of ill intent, but it’s clear that he was not impressed by the thoughtless way in which the bill was enacted.
The rush to pass DOMA coupled with the premise that “everyone knows marriage is a man and a woman” plus the wisdom of some legislators not to go on record with any legal arguments in its favor may have proven to be its downfall. Having almost no hearing on the matter limited the number of possible benefits of the bill that were proposed.
2. It’s a bit interesting that the court tossed out the rational v. heighten review analysis. Instead they found a new methodology of thinking which applies intensified scrutiny to “historically disadvantaged and unpopular” groups, whether or not they have been assigned suspect classification.
This is fascinating and (political junkies, this is for you) an interesting take on the Republican think tank arguments that law and policy ought to be blind to group politics. (This sounds contradictory, so stick with me). It sounds a bit like Boudin is saying that matters should not be based on whether the group before him is a traditionally recognized minority as approved by court precedent, but whether they are a group that has experienced disadvantage.
If so, this is a rather significant legal shift. If this stands, it could be a huge legal precedent to any group that experiences hostility based discrimination.
3. This is the first time that courts have addressed Federalism in relation to DOMA. I’ve long thought this was the strongest line of argument, but the First Circuit did not see it those terms. It may not have been as compelling to the court as I have thought, but it is nevertheless a consideration and increases the intensity of the review.
“…but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.”
4. Evidently some of you have been invading Judge Boudin’s dreams because the following statement is quite similar to comments made here with regularity:
The evidence as to child rearing by same-sex couples is the subject of controversy, but we need not enter the debate. Whether or not children raised by opposite-sex marriages are on average better served, DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.
Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples–whose marriages may in any event be childless, unstable or both–or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem, but a lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.
Darn those radical activist judges for using straight-forward logic.
5. I learned a new word: encomia.
n. pl. en·co·mi·ums or en·co·mi·a
1. Warm, glowing praise.
2. A formal expression of praise; a tribute
6. The court lays out the only way in which DOMA is permissible: blind deference.
If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test.
7. And again the matter is stayed.
Yes, this is the correct and proper action when a case is unquestionably going to be appealed up the ladder. But it truly is frustrating and is a hardship on real families. And I rather doubt that it will be any time soon that DOMA finally reaches its (rather likely) death.
Those darn activist (Republican appointed) judges
May 31st, 2012
Whenever we win any court battle we are regularly treated to massive doses of whining about activist judges. And during election season, some of the less ethical Republican candidates rant on and on about how you must vote Republican because Democrats appoint “judges who legislate from the bench” (by which they mean “judges who treat gay people as equal citizens”).
So I find it amusing that in our battle for recognition of our equal marriage rights – surely the issue most concerning the opponents of “judicial activism” – by far the judges who have found in our favor have either been appointed by Republicans or are in the party themselves. And the latest victory is no exception.
The three federal judges who unanimously agreed with Judge Joseph Tauro (a Nixon appointee) are:
* Judge Michael Boudin (author) – appointed by George H.W. Bush in 1990 to the the United States District Court for the District of Columbia and elevated to the First Circuit in 1992.
* Chief Judge Sandra Lynch – appointed by Bill Clinton to the First Circuit in 1995.
* Judge Juan Torruella – appointed by Ford to the United States District Court for the District of Puerto Rico in 1974. Elevated to the United States Court of Appeals for the First Circuit by Ronald Reagan in 1984
Somehow I don’t think we’ll be hearing “Damn that Ronald Reagan for appointing that judicial activist! That’s the problem with America, Republicans keep appointing judges who legislate from the bench!”
But I’m just guessing.
Prop 8 ruling tomorrow
February 6th, 2012
We have heard that the Ninth Circuit Court of Appeals will release its ruling on the constitutionality of Proposition 8 tomorrow at
10:30. 10:00 a.m.
Update from Jim B: Metro Weekly’s Chris Geidner has a good rundown of what to expect here. There are three questions before the court: Whether Prop 8 supporters have standing, whether Judge Vaughn Walker should have recused himself, and whether Walker ruled correctly that Prop 8 is unconstitutional. Since the Circuit Court’s notice speaks only of the third question, it appears that they have rendered their decision in the first two (supporters have standing, Judge Walker didn’t have to recuse themselves) and are ready to answer the question we’re all really concerned about.
CA Supremes get it wrong on representing the state
November 17th, 2011
The California Supreme Court has weighed in with their opinion as to who can appeal a federal decision in which the State itself is the defendant. Should elected officials which represent the state decide to accept the decision of the federal court rather than appeal, individuals or groups who disagree with the decision of the elected representatives can themselves assume the mantle of “the state” and act as though the electorate had chosen them instead.
In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
This is, I believe, an ill conceived decision, and not only because of its impact on Perry v. Schwarzenegger.
In California, initiatives serve a peculiar function. Decades of legislator-crafted districting and closed-structure power building have left the legislature in the control of a small handful of people. It is not infrequent that a large majority of the people of the state have a strong position that is in opposition to that which the oligarchy takes. So, from time to time the electorate will pass some initiative that is intended to serve as a “wake-up” to Sacramento. (1978′s Proposition 13, which limited the extent to which the state could increase spiraling property taxes, is an example.)
But Californians also have an erratic or whimsical approach to initiatives at times. And then we end up with the people placing a ban on eating horse meat.
But whether serious or wacky, initiatives are at times hastily or ignorantly drafted and – if applied literally – could be disastrous to the functioning of the state. So courts step in and toss out extreme provisions and, assuming that the end result addresses the concerns of the voters, the matter is concluded.
But that assumes that responsible parties can weigh the value of appeal, the importance of language, the constitutionality of various proposals and the way in which an initiative impacts other areas of law. And it also assumes that the State, in its official capacity, will conduct itself with honor and present its case based on the constitutions of the nation and the state, legal precedent, honest testimony, and cogent argument. For these purposes, the State of California elects an Attorney General.
But this decision opens the door for extremist wackos – of all political bents – to throw the state into chaos. If a Governor and Attorney General are not entitled to determine which provisions are worth fighting for and which can be conceded, and if we turn that decision over to idealists who believe that every word in their manifesto is of extreme importance, then my state is slated for some very confusing times.
The California Supreme Court, I believe, got caught up in the emotion of Proposition 8 and “the will of the people” and did not carefully consider the bigger question of representation.
Did Justice Ginsberg Set the Supreme Court Up to Allow Marriage Equality?
July 20th, 2010
That’s the intriguing possibility that The New York Times’ Adam Liptak raised today. It all hinges on the opinion she wrote for Christian Legal Society v. Martinez, in which the Supreme Court ruled that the University of California’s Hastings College of the Law was constitutionally permitted to deny funding to the Christian Legal Society because the group’s policies violated the schools anti-discrimination policies. Actually, Liptak’s optimism hinges not on the entire opinion, but on one single sentence in that opinion:
“Our decisions have declined to distinguish between status and conduct in this context.”
Liptak thinks he sees a technique used by former Justice William J. Brennan, Jr.:
“Brennan’s colleagues learned to watch for the seemingly innocuous casual statement or footnote — seeds that would be exploited to their logical extreme in a later case,” Seth Stern and Stephen Wermiel wrote in a new biography of the justice to be published in October.
Justice Ginsburg’s bland talk about status and conduct was significant because courts are more apt to protect groups whose characteristics are immutable. Calling sexual orientation a status may not require the conclusion that being gay is immutable rather than a choice, but it certainly suggests it.
There was something broader going on, too, said Suzanne B. Goldberg, a law professor at Columbia.
“The court is talking about gay people, not homosexuals, and about people who have a social identity rather than a class of people who engage in particular sex acts,” Professor Goldberg said.
That’s very significant. Previous court decisions talked about gay people as a collection of behaviors and little more. This case marked a small but important change. But the stakes are much bigger when it comes to marriage equality, and that’s a lot of weight for a single sentence to carry going forward. Let’s hope it doesn’t buckle.
Update: BTB’s Timothy Kincaid noted this very same thing in his analysis of the Christian Legal Society v. Martinez. You can blame my short attention span for the omission.
Author of CA Supreme Court’s judicial decision in favor of marriage to step down
July 14th, 2010
From the Mercury News:
California Chief Justice Ron George announced his retirement Wednesday, stunning colleagues and court watchers who saw him issue the opinion that briefly legalized gay marriage and passionately work to consolidate the state’s once Byzantine court system.
George said he timed his decision in part so Gov. Arnold Schwarzenegger could name his successor.
George is advising Schwarzenegger on his replacement. As the In Re: Marriages case is George’s legacy, it seems likely that he will counsel in favor of a replacement who shares his perspective on gay issues.
Olson: SCOTUS confirms gays as a class
June 29th, 2010
In yesterday’s commentary about the Christian Legal Society’s attempts to get recognition by Hastings Law School, I noted that the Supreme Court seems to have identified gay people not in terms of behavior but as a distinct class of people:
The court confirmed its position that attempts to differentiate between behavior and identity (in religious terms, “love the sinner, hate the sin”) as distinctions without difference
While it may be premature and reaching to draw such a conclusion, it appears that the court seems to be in agreement that sexual orientation is a matter of people and not a matter of behavior.
It appears that
Ted Olson, lead Theodore Boutrous, counsel in Perry v. Schwarzenegger, made the same observation. He has written a letter to Judge Walker advising him of the court’s decision and encouraging him to consider it in his decision whether to find Proposition 8 to be in violation of the US Constitution.
In Christian Legal Society, the Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class. Writing for the Court, Justice Ginsburg explained: “Our decisions have declined to distinguish between status and conduct in this context.” Slip op. at 23 (citing Lawrence v. Texas, 539 U.S. 558, 575 (2003); id. at 583 (O’Connor, J., concurring in judgment); Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993)). This confirms that a majority of the Court now adheres to Justice O’Connor’s view in Lawrence, where she concluded that “the conduct targeted by [the Texas anti-sodomy] law is conduct that is closely correlated with being homosexual” and that, “[u]nder such circumstances, [the] law is targeted at more than conduct” and “is instead directed toward gay persons as a class,” id. at 583 (O’Connor, J., concurring in judgment) (emphasis added). See also Romer v. Evans, 517 U.S. 620 (1996) (treating gay and lesbian individuals as a class for equal protection purposes). The Court’s holding arose in response to Christian Legal Society’s argument that it was not discriminating on the basis of sexual orientation, but rather because gay and lesbian individuals refused to acknowledge that their conduct was morally wrong. The Court rejected that argument, holding that there is no distinction between gay and lesbian individuals and their conduct.
Poor ProtectMarriage. Almost all of their witnesses had to be pulled after failing miserably in depositions (one was called as a witness for the plaintiffs). Their sole witness was unqualified and actually hurt their cause. They had to change their “reason” for the proposition time after time (including within closing arguments). And now their argument against heightened scrutiny just skipped out the door.
If they weren’t defending discrimination based on animus and founded in a smug assumption of superiority, I might almost feel sorry for the supporters of Proposition 8.
Court rules that law school need not recognize anti-gay Christian group
This commentary is the opinion of the author and does not necessarily reflect that of other authors at Box Turtle Bulletin.
June 28th, 2010
From the Chronicle
An ideologically split Supreme Court ruled Monday that a law school can legally deny recognition to a Christian student group that won’t let gays join, with one justice saying that the First Amendment does not require a public university to validate or support the group’s “discriminatory practices.”
The court turned away an appeal from the Christian Legal Society, which sued to get funding and recognition from the University of California’s Hastings College of the Law. The CLS requires that voting members sign a statement of faith and regards “unrepentant participation in or advocacy of a sexually immoral lifestyle” as being inconsistent with that faith.
I have mixed feelings about this decision, partly because the SCOTUS agreed with the Ninth Circuit that
The parties stipulate that Hastings imposes an open membership rule on all student groups—all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable.
In reading the decision, we must keep in mind that this is not a ruling on CLS’ policies, but on whether Hastings’ policies are constitutional.
On the one hand, I strongly object to the gay students at Hastings having to pay student fees which are in turn funneled to an organization that excludes them from membership. I am troubled by the growing sense of entitlement which many anti-gay religious groups seem to be adopting from which they demand that society not only follow the rules of their sect but be required to fund them as well.
And this decision confirms the right of a school – even a public school – to establish and uphold non-discrimination policies. An opposite ruling might lead to assumptions that schools cannot make any restrictions on anti-gay discrimination.
But, on the other hand, I fear that broad interpretation may lead to an inability for any organization to control its own identity.
Would, for example, the Clara Foltz Feminist Association be subject to a take-over by religious conservatives who can then vote that the club take positions which oppose reproductive rights and assert that a woman is to be subject to her husband? Could the Hastings Jewish Law Students Association become the missionary arm of Jews for Jesus – or of the Scientologists, for that matter? Can the new motto of the Environmental Law Society become “Drill, baby, drill”.
While this may seem unlikely, it is not unheard-of for a student organization to be hijacked for petty school politics, or even as a lark. The court, however, did not think that such concerns were reasonable.
CLS also assails the reasonableness of the all-comers policy in light of the RSO forum’s function by forecasting that the policy will facilitate hostile takeovers; if organizations must open their arms to all, CLS contends, saboteurs will infiltrate groups to subvert their mission and message. This supposition strikes us as more hypothetical than real.
Students tend to self-sort and presumably will not endeavor en masse to join—let alone seek leadership positions in—groups pursuing missions wholly at odds with their personal beliefs. And if a rogue
student intent on sabotaging an organization’s objectives nevertheless attempted a takeover, the members of that group would not likely elect her as an officer.
I have personal experience which contradicts the court’s assumption. And Justice Alito’s dissent does not find the idea to be nonsensical.
But from a practical perspective, the greatest impact of this decision will be limited to those religious campus organizations who eject, reject, or limit gay students. The national Christian Legal Society will have to choose to go off-campus at many law schools (those with non-discrimination policies) or to revise its policies.
But other organizations may be immediately impacted as well, if to a lesser extent. As I recall, my fraternity required that its members believe in God, though that was interpreted broadly, could be “acknowledged symbolically”, and seemed to have no measurable influence on daily life. But it would seem that this “religious belief” requirement could also be a reason for exclusion of this group from meeting on campus or having recognition of any form.
Although in minority, Alito argued that a policy demanding that all organizations ‘accept all comers’ (whether or not selectively enforced) places a great burden on those who meet based on commonly shared religious beliefs, regardless of where they exist on the religious spectrum.
There are religious groups that cannot in good conscience agree in their bylaws that they will admit persons who do not share their faith, and for these groups, the consequence of an accept-all-comers policy is marginalization.
But, other than its immediate impact on this one Christian group and other similar groups, the court’s decision may also tell us a few more things than simply what is allowable school policy. And while I have some concerns about the court’s interpretation of freedom of speech and association, they are countered by concerns about compulsory fees being withheld and distributed to organizations that some students cannot join. So, for me, the most interesting aspects of this case can be found in the way in which justices view gay people.
1. This decision may give us clues as to whether the court is sympathetic to religious exclusion of gay people from society. In this match up of non-discrimination policies v. the religious liberty to exclude gay people, the court chose not to let religious belief trump orientation.
2. The case was closely decided, 5-4. Justice Ginsberg wrote the decision and was joined by Justices Stevens, Kennedy, Breyer, and Sotomayor. The dissent was written by Alito and joined by Scalia, Roberts, and Thomas.
Much of Alito’s objection focused on the distinction between whether Hastings’ refusal to offer Registered Student Organization status was based in an “accept all comers” principle or a Non-Discrimination Policy. He asserted that (irrespective of stipulation) at the time of rejection the school did indeed “permi[t] political, social, and cultural student organizations to select officers and members who are dedicated to a particular set of ideals or beliefs” and only decided that this was an “accept all comers” policy after the fact.
Alito noted that many organizations limited members to those who agree with their positions (e.g. the pro-life group, the Democratic Caucus) and at least one had race-based restrictions (La Raza). They were required to change these provisions only after CLS was rejected for membership, illustrating that “that Hastings had no accept-all-comers policy until this litigation was well under way.”
3. The court contrasted this decision from that which allowed the Boy Scouts to exclude members.
CLS may exclude any person for any reason if it forgoes the benefits of official recognition. The expressive-association precedents on which CLS relies [as opposed to limited public forum], in contrast, involved regulations that compelled a group to include unwanted members, with no choice to opt out. See, e.g., Dale, 530 U. S., at 648 (regulation “forc[ed] [the Boy Scouts] to accept members it [did] not desire”
Application of the less-restrictive limited-public-forum analysis better accounts for the fact that Hastings, through its RSO program, is dangling the carrot of subsidy, not wielding the stick of prohibition.
This would suggest that cities who wish to limit their public subsidies to only those organizations that do not discriminate are free to do so. Indeed, this seems to directly contradict the decision of the jury in Philadelphia.
In his rebuttal, Alito found this case to be exactly similar to Dale in that the policy forces organizations to accept members with whom it does not wish to associate. He dismissed the funding possibilities as inconsequential and only a small part of the case.
4. The court confirmed its position that attempts to differentiate between behavior and identity (in religious terms, “love the sinner, hate the sin”) as distinctions without difference:
To bring the RSO program within CLS’s view of the Constitution’s limits, CLS proposes that Hastings permit exclusion because of belief but forbid discrimination due to status. See Tr. of Oral Arg. 18. But that proposal would impose on Hastings a daunting labor. How should the Law School go about determining whether a student organization cloaked prohibited status exclusion in belief-based garb? If a hypothetical Male-Superiority Club barred a female student from running for its presidency, for example, how could the Law School tell whether the group rejected her bid because of her sex or because, by seeking to lead the club, she manifested a lack of belief in its fundamental philosophy?
This case itself is instructive in this regard. CLS contends that it does not exclude individuals because of sexual orientation, but rather “on the basis of a conjunction of conduct and the belief that the conduct is not wrong.” Brief for Petitioner 35–36 (emphasis deleted). Our decisions have declined to distinguish between status and conduct in this context. See Lawrence v. Texas, 539 U. S. 558, 575 (2003) (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.” (emphasis added)); id., at 583 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.”); cf. Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263, 270 (1993) (“A tax on wearing yarmulkes is a tax on Jews.”).
Here, interestingly, Alito dismisses the majority’s logic as “because it is easier to enforce.” He does seem to accept distinction between identity and behavior, but not in a way which argues that gay people are only “folks who engage in certain behavior.” Rather, he seems to agree that gay people, as such, exist but that they, like Muslims, Atheists, and those Christians who believe significantly different doctrines than those of CLS, should be able to be excluded by a club which is based on certain shared religious beliefs.
In fact, while Alito questioned (in a footnote) what might possibly be meant by religious status (as opposed to religious belief) in terms of immutable characteristics, he seems to have no question about what sexual orientation status may mean. Nor does the dissent suggest that orientation is mutable or inconsequential.
While it may be premature and reaching to draw such a conclusion, it appears that the court seems to be in agreement that sexual orientation is a matter of people and not a matter of behavior.
5. The dissent was not homophobic. Indeed, Alito seemed far less interested in why CLS was excluding members than he was in their right to do so without being marginalized based on their viewpoint. His was a freedom of expression argument rather than an upholding of morals and standards argument.
As Roberts, Thomas, and Scalia did not write separate dissents, we cannot know their motivations. However, this is in tone far from that of Scalia in Lawrence v. Texas, and to me hints as a certain mellowing that may be occurring on the conservative end of the bench. Or, at least, I hope that is what it suggests.
6. And finally, the justices illustrate that legal findings need not be boring or dry. Stevens, in his concurring opinion, gets points for the best quote:
“In the dissent’s view, by refusing to grant CLS an exemption from the Nondiscrimination Policy, Hastings violated CLS’s rights, for by proscribing unlawful discrimination on the basis of religion, the policy discriminates unlawfully on the basis of religion.”
SCOTUS to decide if WA’s Referendum 71 signatories to be made public
January 16th, 2010
Although the voters in the state of Washington have long since elected to reaffirm the legislature’s decision to provide Domestic Partner benefits equal to marriage to same-sex couples, the issue over whether the signatories are public information is still unresolved. On Friday the Supreme Court announced that it would take up the issue. (LA Times)
The high court will consider whether Washington state officials can release more than 138,500 names on a petition seeking a vote on overturning the state’s domestic partnership rights.
Protect Marriage Washington, which unsuccessfully opposed the law giving gay couples expanded rights, wants to shield from disclosure the signers of the petition for a referendum on that law. The group says it fears harassment by gay rights supporters, some of whom have vowed to post signers’ names on the Internet.
The objection to making the names public is based on the often asserted but rarely supported reports of “threats”, “intimidation”, and “retaliation”.
In case you don’t speak the lingo of anti-gay activists, “retaliation” is when gay customers find out that the profits from their purchases are being used to take away their rights and freedoms and refuse to continue to patronize the business establishments that harm them. “Intimidation” is when gay citizens, their friends, and their families discover that their neighbors want to harm them and consequently snub, shun, or speak disparagingly to those who are actively trying to harm their lives.
“Threats” tend not to exist at all outside of vague and highly improbable internet venting or solely in the fevered imagination of those who want to see themselves as victims.
Anti-gays genuinely believe that gay people should be barred from knowing who seeks to do them harm and, if they should find out, are not entitled to object.
Perry v. Schwarzenegger opening statements not to be taped
January 11th, 2010
From the Washington Post
The Supreme Court on Monday morning temporarily blocked a federal judge in San Francisco from showing on YouTube proceedings from a trial that will determine whether a ban on same-sex marriage is unconstitutional.
The court’s decision is not the final word; the stay sought by same-sex marriage opponents expires Wednesday. The court said that will permit justices “further consideration.” The trial is scheduled to start Monday.
Let us hope that the rest of the trial will be available to the public and not limited to those handful able to obtain a seat in the San Francisco courthouse.
Rachel Maddow On Obama and the Supreme Court Decision on DADT
June 9th, 2009
SCOTUS Refuses to Hear Case on DADT
June 8th, 2009
The Supreme Court on Monday agreed with the Obama administration and refused to review Pentagon policy barring gays and lesbians from serving openly in the military.
The court said it will not hear an appeal from former Army Capt. James Pietrangelo II, who was dismissed under the “don’t ask, don’t tell” policy.
This does send a signal that the Court is not at this time willing to hear challenges to the policy. However, the decision was not a validation of the constitutionality of DADT and the Pietrangelo case was not the only one working its way through the legal system.
This refusal of certiorari does highlight the need to push our elected officials to do what is both ethically correct and the will of the people.
The Supreme Court Justices and Marriage Equality
May 27th, 2009
Section 1 of the Fourteenth Amendment to the United States Constitution reads as follows:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
This amendment is home to the “Equal Protections Clause” and “Due Process Clause”. And it is under the language of this clause that Theodore B. Olson and David Boies seek to have Proposition 8 determined to be unconstitutional.
Now to me it’s a simple proposition. Gay persons – and couples – are entitled to the priveleges of any other citizen. And, if it up to me, I would probably argue more about how Proposition 8 is an abridgement of my privileges as a citizen than I would about the due process of law. And I’d probably lose.
But regardless of the merits of the arguments, ultimately it isn’t what I think, or what Olson and Boies think that about the application of these protections, it is what the nine Justices of the Supreme Court think.
It is not possible at this time to know the composition of the court should this suit ever reach it. Several members are quite elderly and some are not in good health and lawsuits of this sort can take years before they are heard.
But we can look to the present composition of the court and make some educated guesses about whether they would find such arguments compelling. To guide us, we can look to two significant previous rulings on gay issues that dealt with equal protections and due process.
In November 1992, the voters of Colorado passed Amendment 2 with 53% of the vote. This amendment to the state constitution disallowed sexual orientation as a basis to “claim any minority status, quota preferences, protected status or claim of discrimination”. The Colorado State Supreme Court invalidated the amendment on the basis that it violated the equal protections clause of the 14th Amendment. The state appealed to the US Supreme Court who, by a 6-3 split, found Amendment 2 unconstitutional, though for a different reason. Justice Kennedy wrote that the state had no rational reason to identify persons by a single trait – create a class – and to then deny them the right to even appeal for protection from the law.
Of those currently on the court, Justices Kennedy, Stevens, Ginsberg, and Breyer voted to overturn Amendment 2. Justice Souter also voted with the majority, but he has tendered his resignation.
Justice Scalia, on the other hand, found Amendment 2 to be “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores”. Justice Thomas agreed.
In June 2003, the Supreme Court declared that the sodomy laws of the State of Texas were unconstitutional by a vote of 6-3. Five justices, again Kennedy, Stevens, Ginsberg, Breyer, and Souter, found that it violated due process guarantees, specifically the “substantive due process” right to privacy. Justice O’Connor based her position on “equal protections”, a position which she conceded raised the issue of marriage rights.
Justice Scalia wrote an angry screed in which he accused the court of having “largely signed on to the so-called homosexual agenda.” Thomas called the law “uncommonly silly” but found no right to privacy in the constitution.
Based on those two decisions, we can assume the following:
- Justices Thomas and Scalia to not believe that laws created solely to disadvantage gay persons are contrary to any protections found within the Constitution.
- Justices Kennedy, Stevens, Ginsberg, and Breyer are generally more sympathetic to the plight of persons who are singled out for exclusion from society. But we cannot make the assumption that this sympathy will extend to the definition of civil
- Appeals to equal protections – the appeal that I would think most closely applies to marriage rights – do not seem to be the arguments that speak strongest to those on the court likeliest to be sympathetic.
And we have three lesser known quantities: Justices Alito and Roberts and judicial nominee Sotomayor. Reputation places the three as conservative, moderate, and liberal, respectively.
Justices have a habit of defying reputation and presumed ideology. However, I think it safest to assume that Justice Alito can be counted as a vote against marriage equality. And there is simply not adequate record to determine whether Roberts or Sotomayor (if confirmed) would be inclined to see protections for gay people in the Constitution, much less marriage rights.
So, we approach the court knowing that two are definitely anti-gay in their rulings, one is likely to be so, four have sympathy to gays who are excluded from due process but may not extend that sympathy to marriage, and two are an unknown quantity. This is not the court that I would like to approach with questions about my rights.
Considering that we have a deck stacked against us, we have to wonder at the wisdom of going to the Supreme Court at this time. Should we lose, it is a greater loss than a state’s denial of equality. Should the Court reject our argument, not only will it set federal precedent that is likely to require decades to reverse, but it will give guidance to such other state courts as are approached with an appeal to our equality and liberty.
So I concur with Jim and with other prominent gay organizations that our best bet is to appeal to our neighbors and change hearts and minds before we go to the Supreme Court.
Today In History: Lawrence vs. Texas Begins Its Journey Through The Courts
November 20th, 2008
Ten years ago today, on November 20, 1998, John Geddes Lawrence and Tyrone Garner pleaded no contest to charges of violating the Texas “Homosexual Conduct” law which banned “deviant sexual intercourse with another individual of the same sex.” They were convicted of the Class C misdemeanor by a Justice of the Peace in Houston, and were fined $250 with an additional $141.25 in court costs.
That conviction led to a series of appeals: the Texas Criminal Court (which rejected the defense’s request to dismiss the charges), a three-judge panel of the Texas 14th Court of Appeals (which ruled the law unconstitutional), and the full nine-judge panel of the 14th Court of Appeals (which reversed the three-judge panel).
The appeals then reached the Texas Court of Criminal Appeals, which serves as Texas’s Supreme Court for criminal cases. That court refused to hear the case, which left the lower court’s decision standing.
Lawrence vs. Texas was then appealed to the U.S. Supreme Court, which agreed to hear the case. On June 26, 2003, the U.S. Supreme Court, in a 6-3 ruling, struck down the Texas anti-sodomy law, along with similar laws in twelve other states.
CA Supremes to Decide Perhaps by the End of the Week
This commentary is the opinion of the author and may not necessarily reflect that of other authors at Box Turtle Bulletin.
November 11th, 2008
The Sacramento Bee is reporting:
The California Supreme Court could rule as early as this week on a lawsuit that seeks to invalidate Proposition 8, court spokeswoman Lynn Holton said today.
The decision this week would be whether to put a stay on the State’s enforcement of Proposition 8 until lawsuits could be heard. The lawsuits are based on the argument that Proposition 8 did not amend the Constitution, but rather revised it to do something materially different than it did before. In other words, this was not a change in how something is done but rather a change in an underlying principle of the Constitution: that all citizens are equal and that gay citizens cannot be excluded from the institutions of the State.
If the court finds that removing a fundamental right of a suspect population is a revision rather than an amendment, the process is different. It requires a two-thirds vote of the legislature before submission to the public.
Some scholars are of opinion that this suit is unlikely to prevail. But there are a few indicators – purely from observation and guesswork – that I find encouraging.
First, this court did not find, as some have, that the State did not provide adequate reason for excluding same sex couples. Rather, they found that gay persons are a suspect class and that all laws written for the express purpose of excluding gay persons or couples are presumed to be in violation of the Constitution and can only pass strict scrutiny if they are narrowly tailored to be the least restrictive means for achieving a compelling governmental interest.
Proposition 8 did nothing to invalidate the strict scrutiny requirements or equal protections provisions of the Constitution. And no one pretends that Prop 8 achieved even a vague government interest and it was inarguably greatly restrictive and broadly tailored. Thus, the proposition leaves the State Constitution in a state of internal conflict. The reading of this document now is “Gays cannot be excluded. Gays are excluded.” Such language is clearly nonsensical.
It leaves the legal scholar with a document that is not much different from that painted on the side of the barn in the Animal Farm, “All animals are equal, but some animals are more equal than others”.
Next, I’m going to speculate on how a judiciary views precedent. Regardless of the conclusions of a court, jurists hold them as concluded. Those who found other evidence to be compelling do not disagree with whether the court has decided or whether such decisions must be followed.
This court found by a 4-3 vote that gays are subject to strict judicial scrutiny and that marriage is a fundamental right. But – and this is the important part – even the three dissenting judges will uphold the position that marriage is now a fundamental right and that gays are now a suspect class. Once the conclusion is reached, it has the force of law and the backing of both supporters and dissenters.
That voters disagree about the fundamental nature of the right to marriage is not of importance to the dissenting judges. That 52% of voters don’t want gays to have equality does not make the suspect status of gays any less real – even to the dissenters. Those who sought to overturn the decision did not disagree with a few judges, but rather with the right of the court to determine who is included in the protections of the constitution – something that all jurists take seriously. Or so I hope.
Finally, and this may seem counterintuitive, these are not liberal activist judges. They did not come into their position with a “gay agenda” and use creative reading to find a “special right”. Six of the seven judges are Republicans, and they found that gay people are equal out of their understanding of constitutional protections. Their decision was based on their reasoning and contrary to what may have been initial prejudices. They will not be easily swayed by Party, ideology, or the whims of political winds. If they found marriage to be a fundamental right, a 52% vote of the populace is unlikely to cause them to no longer see such a right.
Now I may be unduly optimistic, but I have reason to hope that the California Supreme Court will invalidate Proposition 8. And I have a suspicion that the vote will be greater than 4 to 3.
Today In History: ONE Magazine versus the U.S. Post Office
January 13th, 2008
Today marks a very important milestone in LGBT history. Fifty years ago today, on January 13, 1958, the U.S. Supreme Court delivered its first ever pro-gay ruling in ONE Inc. v. Olesen, a landmark decision that allowed a magazine for gays and lesbians to be sent through the U.S. mail.
ONE, Inc. was founded by several members of the Los Angeles Mattachine Society who felt that a strong nationwide voice for education and advocacy was desperately needed. According to ONE, Inc.’s articles of incorporation, “…the specific and primary purposes … are to publish and disseminate a magazine dealing primarily with homosexuality from the scientific, historical and critical point of view, and to aid in the social integration and rehabilitation of the sexual variant.” But this wasn’t going to be just any magazine. Under the inaugural editorial leadership of Martin Block, Dale Jennings, Don Slater and Donald Webster Cory, ONE magazine was to be a first class product, a dramatic departure from the typewritten and mimeographed sheets which were more common at the time.
So when ONE debuted in January 1953, it sported a very sophisticated look, with bold graphics and professional typset and design. ONE’s slick offering quickly caught the attention gays and lesbians across the country, and circulation jumped to nearly 2,000 within a few months — with most subscribers paying extra to have their magazine delivered in an unmarked wrapper. Even still, ONE’s survival depended on the day jobs of its few contributors who typically worked under multiple pen names to make the staff appear larger to readers — and sometimes to protect their own identities.
By today’s standards, an early edition of ONE might look rather tame. There were no racy pictures, and even its fiction was mostly limited to depictions of longing and desire. There was rarely any evidence of physical contact in its pages. But what the magazine lacked in raciness, it made up for in audacity. ONE’s editorial tone was bold and unapologetic, covering politics, civil rights, legal issues, police harassment (which was particularly harsh in ONE’s home city of Los Angeles), employment and familial problems, and other social, philosophical, historical and psychological topics. And most importantly, ONE quickly became a voice for thousands of silent gays and lesbians across the U.S., many of whom wrote letters of deep gratitude to ONE’s editors. But in a sign of those times, all letters to the editor were published anonymously — from “m” in Winston-Salem, North Carolina or from “f” in Beaumont, Texas.
ONE filled a very critical role for gays and lesbians during a very dark time. ONE’s debut coincided with a major push to rid the U.S. civil service of homosexuals. President Dwight D. Eisenhower would sign Executive Order 10450 in April of that year, which barred gays and lesbians from federal employment with its “sexual perversion” clause. This followed a highly-publicized purge of more than 400 gays and lesbians from the civil service some three years earlier. Homosexuality was criminalized in every states, and it was stigmatized as a mental illness by the psychiatric profession. Gays were not only denounced as security risks, but risks to the very moral fiber of the nation. Homosexuals were treated as subversives, on par with the “Communist menace” on which leading politicians were staking their career. The FBI had launched a major crackdown on homosexuality across the U.S., with many gays and lesbians losing their jobs for merely receiving homophile publications in the mail. And vice squads everywhere were setting up entrapment stings in bars and other meeting places, where a simple proposition or touch could lead to arrest and public exposure.
So when ONE caught the eye of the FBI, they immediately launched an investigation to try to shut it down. They went so far as to write to the employers of ONE’s editors and writers (they all depended on their day jobs for income), saying that their employees were “deviants” and “security risks.” Fortunately, no one lost their jobs, the FBI decided it wasn’t worth their time, and ONE continued publishing.
The job of shutting down ONE then fell to the U.S. Post Office. Since its inception, Los Angeles postal authorities vetted each issue before deciding whether it was legal to ship under the Post Office’s stringent anti-obscenity standards. And since homosexuality was illegal in most states, ONE had the added problem of possibly being guilty of promoting criminal activity. The Post Office finally acted in August 1953, holding up that month’s issue for three weeks while deciding if it violated federal laws. (Ironically, the cover story for that issue was on “homosexual marriage,” an issue that is still contentious more than fifty years later.) Finally, officials in Washington decided the magazine didn’t violate federal laws and ordered the LA Post Office to release it for shipment.
Your August issue is late because the postal authorities in Washington and Los Angeles had it under a microscope. They studied it carefully from the 2nd until the 18th of September and finally decided that there was nothing obscene, lewd or lascivious in it. They allowed it to continue on its way. We have been found suitable for mailing.
…But one point must be made very clear. ONE is not grateful. ONE thanks no one for this reluctant acceptance. It is true that this decision is historic. Never before has a governmental agency of this size admitted that homosexuals not only have legal rights but might have respectable motives as well. The admission is welcome, but it’s tardy and far from enough. As we sit around quietly like nice little ladies and gentlemen gradually educating the public and the courts at our leisure, thousands of homosexuals are being unjustly arrested, blackmailed, fined, jailed, intimidated, beaten, ruined and murdered. ONE’s victory might seem big and historic as you read of it in the comfort of your home (locked in the bathroom? hidden under a stack of other magazines? sealed first class?). But the deviate hearing of our late August issue through jail bars will not be overly impressed.
ONE’s editors knew they weren’t in the clear, but they didn’t know where their next threat would come from. That threat, it appears, may have come from the Senate Foreign Relations Committee Chairman Alexander Wiley (R-WI), who wrote a letter of protest to U.S. Postmaster General Aurthur Summerfield. Having run across the March 1954 issue (the cover story was “The Importance of Being Different”) Sen. Wiley registered a “vigorous protest against the use of the United States mails to transmit a so-called ‘magazine’ devoted to the advancement of sexual perversions.” Allowing a homosexual magazine to operate, he wrote, “(a) runs utterly contrary to every moral principle, (b) runs utterly contrary to our intentions to safeguard our nation’s youngsters, (c) likewise, it is the very opposite of the entire purpose of our governmental security program…”
The particulars of this action wasn’t known by ONE’s editors. But as defiant as ONE was in the October 1953 issue, they knew that the threat of closure due to censorship still loomed large — that is, if finances and distribution problems didn’t get to them first. Financial pressures forced them to skip the August and September 1954 issues and they had to extend everyone’s subscriptions by two months. To try to avoid future legal problems, ONE’s editors asked Eric Julber, their young straight lawyer fresh out of law school, to write a set of rules for the staff to follow in the hopes of staying out of trouble. When readers began to complain that ONE was too tame, the editors asked Julber to print his rules in the returning October 1954 issue with a cover declaring, “You Can’t Print It!” Those rules prohibited:
(1) Lonely hearts ads, seeking pen pals or meetings.
(2) “Cheesecake” art or photos. To readers who ask, “But how about all the girlie magazines?” I can only reply that in our society, visual stimulation of man by woman is tolerated to a far greater extent than attempted visual stimulation of man by man, for what is in law a criminal purpose.
(3) Descriptions of sexual acts, or the preliminaries thereto. Again here, what is permissible in heterosexual literature is not permissible in ONE’s context.
(4) Descriptions of experiences which become too explicit. I.e., permissible: “John was my friend for a year.” Not permissible: “That night we made mad love.”
(5) Descriptions of homosexuality as a practice which the author encourages in others, or waxes too enthusiastic about.
(6) Fiction with too much physical contact between the characters. I.e., characters cannot rub knees, feel thighs, hold hands, soap backs, or undress before one another. (All examples taken from recent contributions).
Julber also insisted that he review each issue before it was sent to the publisher. But all this failed to keep ONE out of trouble — maybe because Julber didn’t strictly enforce his own rules, allowing the October 1954 issue to be arguably the raciest to date. The very same issue which ran Julber’s rules also featured a fictional short story called “Sappho Remembered,” in which two young lovers touched four times, declared their love for each other, and the story had a happy ending. Another feature, a poem, made light of the arrest of several British public figures (including actor John Gielgfud) on “morals” charges (“Lord Samuel is a legal peer / (While real are Monty’s curls!) / Some peers are seers but some are queers / And some boys WILL be girls.”). And there were two ads — one for a Swedish magazine (which, postal officials charged, meant that ONE was advertising “obscene materials”) and another for men’s pajamas and intimate wear.
That was enough for the Los Angeles Post Office to seize that issue — the one with “You Can’t Print It!” on the cover — and charge the editors with violating the 1873 Comstock Act, which prohibited sending “obscene, lewd, and/or lascivious” material through the mail.
The editors were eager to sue the Post Office, but ONE’s financial condition was so perilous that they held off for nearly a year. Julber took the case for free and looked for help from the ACLU, but they wouldn’t touch it — the ACLU was still defending anti-sodomy laws at the time. Finally it was up to young Julber alone to argue ONE’s case in federal district court that the magazine was educational and not pornographic. It didn’t go well. The judge ruled for the Post Office in March 1956, and the 9th Circuit Court of Appeals agreed in February 1957, calling ONE “morally depraving and debasing” and saying that the magazine “has a primary purpose of exciting lust, lewd and lascivious thoughts and sensual desires in the minds of persons reading it.”
ONE then took its case to the U.S. Supreme Court. To everyone’s surprise, the Court agreed to take the case, its first ever dealing with homosexuality. Even more surprising, the Supreme Court issued its short, one-sentence decision on January 13, 1958 without hearing oral arguments. That decision not only overturned the two lower courts, but the Court expanded the First Amendment’s free speech and press freedoms by effectively limiting the power of the Comstock Act to interfere with the written word. As a result, lesbian and gay publications could be mailed without legal repercussions, though many continued to experience harassment from the Post Office and U.S. Customs.
By winning this decision ONE Magazine has made not only history but law as well and has changed the future for all U. S. homosexuals. Never before have homosexuals claimed their right as citizens. Not even the Berdache, nor the Greeks, nor the Napoleonic Code, nor Wolfenden “recommendations,” nor The American Law Institute “recommendations” have managed to mean so much to so many. ONE Magazine no longer asks for the right to be heard; it now exercises that right. It further requires that homosexuals be treated as a proper part of society free to discuss and educate and propagandize their beliefs with no greater limitations than for any other group.
…The New York Times has this to say about the decision: “The court today reversed a post office ban on a magazine, One, which deals with homosexuality. The petition for review filed by the lawyer, Eric Julber of Los Angeles, had apparently raised only one question: was the magazine ‘obscene’ within the statute banning importation of obscene matter? The court’s order appeared to answer: No.”
True to its educational mission, ONE, Inc founded the One Institute as an educational arm in 1956. In 1958, the ONE Institute Quarterly became the first academic journal on gay and lesbian studies in America. ONE magazine’s last issue was in 1967 following a very long and acrimonious split in ONE, Inc.’s governing board. Today, the ONE National Gay and Lesbian Archives houses the world’s largest research library on Gay, Lesbian, Bisexual,and Transgender history near the main campus of the University of Southern California in Los Angeles.
ONE magazine, October 1953, October 1954, February, 1958.