Saturday, January 16, 2010

Perry v. Schwarzenegger, "The Proposition 8 Trial": teaching opportunities

The first week of trial testimony has concluded in the first federal trial on the constitutionality of same-sex marriage bans.  Our primer of the case is here, a Q&A for CUNY School of Law here, and our previous discussions of testimony in previous days here and here.  

Thursday and Friday saw more expert witnesses including 

  • Edmund Egan, the Chief Economist of the City of San Francisco (the city is an intervenor in the case), who testified that Proposition 8 has had a negative impact on the city's economy and budget;
  • Professor Ilan Meyer (pictured right) Mailman School of Public Health, Columbia University, who testified about his research regarding the relationship of minority status, minority identity, prejudice and discrimination and mental health outcomes in sexual minorities and the intersection of minority stressors related to sexual orientation;
  • Professor Michael Lamb, Department of Social and Developmental Psychology, Cambridge University UK, who testified about the consequences of denying same-sex marriage to parents given that children in general do better when their parents have adequate social supports such as marriage;
  • Helen Zia (pictured left) former Executive Director of Ms. Magazine, who testified, over defense objection, regarding her experiences regarding her lesbianism and same-sex marriage.

Images Im15_3_Meyer-pic More specifics about the testimony can be found at the twitter and live-blogging sites previously mentioned, as well as daily synopsis notably from National Center for Lesbian Rights and, as well as the excellent live-blogging from Howard Mintz of the Mercury News (starting with day 1 here).

The reporting - - - and widespread student interest - - - in the case provides some wonderful teaching opportunities. Most of the study of constitutional law concentrates on SCOTUS opinions, and highly edited ones at that.  The type of fact analysis necessary for the practice of law, including constitutional law, can be difficult to glean from most SCOTUS opinions.  The Proposition 8 trial coverage (alas not on You Tube, but nevertheless) provides the important perspective of litigating constitutional law at trial.

One could ask students to consider a specific portion of testimony elicited on direct or redirect, or a specific question asked in cross-examination, and answer questions such as the following:

  • to what legal argument does it pertain?
  • could it be relevant to more than one legal argument? which ones?
  • what type of testimony/evidence should the opposing party introduce?
  • are there credibility issues with the witness?

This could be a great in-class exercise, a short take-home assignment, or even a multiple choice quiz.


January 16, 2010 in Cases and Case Materials, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, News, Recent Cases, Reconstruction Era Amendments, Sexual Orientation, Sexuality, Teaching Tips | Permalink | Comments (1) | TrackBack (0)

Friday, January 15, 2010

Constitutional Law Professors as Difficult to "Nail" with "Witticisms": John Yoo and Jon Stewart

The consensus seems to be that John Yoo bested Jon Stewart in Yoo's appearance on The Daily Show;  even Stewart seemed to think so.   As Christopher Beam says on Slate today, although Stewart may have apologized for not "nailing" Yoo:  "Stewart was set up to fail. No matter what the question, Yoo was able to fall back on vagaries about constitutional interpretation, war and peace, and presidential power."  

Beam contrasts the style of constitutional law professors (and lawyers) with comedians.  Beam implicitly reveals the problem with assuming that Jon Stewart's The Daily Show - - - which is on the Comedy Central Network - - - is a substitute for serious news and commentary.    Beam implies that Stewart's stock in trade is "damning witticisms."   He states:  "Stewart is effective when his opponent is making a foolish point, not when he has an unorthodox Constitutional interpretation. Which is why Stewart wasn't going to pin Yoo down."

Make your own judgment about the interview:

The Daily Show With Jon StewartMon - Thurs 11p / 10c
John Yoo Pt. 1
Daily Show
Full Episodes
Political HumorHealth Care Crisis

Yoo was on the show to promote his new book, Crisis and Command: A History of Executive Power from George Washington to George W. Bush which he also did at a Federalist Society Luncheon today.


January 15, 2010 in Books, Executive Authority, News, Television | Permalink | Comments (1) | TrackBack (0)

Thursday, January 14, 2010

NRA Scholars' Conference on Second Amendment Incorporation

The National Rifle Association Civil Rights Defense Fund hosted a Scholars' Conference on January 10 on incorporation of the Second Amendment via the Fourteenth Amendment Privileges or Immunities Clause.  The discussion features Ilya Shapiro (Cato), Dave Hardy (Arms & the Law Blog), Adam Winkler (UCLA), and Josh Blackman (Josh Blackman's Blog).  Thanks to Alice Beard for the tip.

McDonald v. City of Chicago, set for argument on March 2 at the Supreme Court, tests this argument.  We've posted most recently on the P or I incorporation issue here; our most recent Second Amendment posts are here and here.


January 14, 2010 in Due Process (Substantive), Fourteenth Amendment, Fundamental Rights, Interpretation, Privileges and Immunities, Recent Cases, Scholarship | Permalink | Comments (1) | TrackBack (0)

Sex Crimes Blog on Comstock

Professor Corey Yung (John Marshall, Chicago), editor of the Sex Crimes Blog, has a round-up of commentary on the Comstock oral arguments here and here.  (U.S. v. Comstock, argued at the Supreme Court on Tuesday, tests whether Congress can authorize the indefinite detention of "sexually dangerous" federal prisoners, even beyond their prison term.)  Yung offers his own insightful analysis here and here, with a prediction here.  Our commentary is here.


January 14, 2010 in Commerce Clause, Congressional Authority, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 13, 2010

Perry v. Schwarzenegger, “The Proposition 8 Trial”: Day Three

The Court declined to allow the broadcast of the trial, reaffirming its stay issued Monday.   Today's Order begins:

We are asked to stay the broadcast of a federal trial.  We resolve that question without expressing any view on whether such trials should be broadcast.  We instead determine that the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting. Courts enforce the requirement of procedural regularity on others, and must follow those requirements themselves.

Justice Breyer, issued a dissenting opinion, joined by Stevens, Ginsburg, and Sotomayor.

Thus, reports of the trial will be by newsmedia and tweets.   As a refresher, our primer on the issues of the case is here.

The day began with the continued cross-examination of George Chauncey, apparently seeking to elicit information that there is stronger support for gays and lesbians now than in the past and that Nancy Pelosi is a “powerful ally.”  This would pertain to the argument regarding gays and lesbians as politically powerless or not for the Carolene analysis of heightened scrutiny, and could also apply to the animus argument for heightened scrutiny.  The redirect focused on the ways in which bias against lesbians and gay men continues.

The next expert witness was Anne Peplau, Professor of Psychology at UCLA.  Peplau is a social psychologist who studies gender and sexual orientation, with a long list of publications.  Her initial testimony stressed the similarity between same-sex and opposite sex couples.

Update: A narrative from National Center for Lesbian Rights' Legal Director Shannon Minter is here; a live blogging summary from Julia Rosen is here.


January 13, 2010 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Reconstruction Era Amendments, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 12, 2010

Court Hears Arguments in Comstock

The Supreme Court on Tuesday heard oral arguments in U.S. v. Comstock, the case testing Congress's power under the Necessary and Proper Clause to authorize indefinite civil commitment of "sexually dangerous" persons beyond their prison term.  We've reviewed the case here, here, and here; the Fourth Circuit's opinion (holding that Congress lacks authority) is here; the Eighth Circuit opinion in U.S. v. Tom (holding that Congress has authority) is here.

The case involves Title III of the Adam Walsh Child Protection Act, 18 U.S.C. Sec. 4248 ("4248"), which authorizes the federal government to detain a federal prisoner designated as "sexually dangerous" beyond his or her prison term, potentially indefinitely.  (One of the respondents in the case received such designation on the day he was due for release.)

The government maintained throughout the litigation that Congress has authority based on the Necessary and Proper Clause alone--that such detention is "necessary and proper" to run the federal criminal justice system.  The government thus sees post-sentence civil commitment as part and parcel of its role as custodian of federal prisoners.

Respondents consistently argued that the Necessary and Proper Clause can only support one of Congress's enumerated Article I powers--and not a program that is authorized by one of those powers.  Respondents see post-sentence civil commitment as an entirely new exercise of power, divorced from the original prison sentence and the government's role as custodian, and no enumerated power (even with the help of the Necessary and Proper Clause) supports such commitment.

The core issue--and the focus of oral arguments on Tuesday--is the scope of the Necessary and Proper Clause.

Solicitor General Kagan sets out the government's position in this exchange with Chief Justice Roberts and Justice Scalia:

Chief Justice Roberts: Well, why doesn't the Federal Government's authority to have custody because of the criminal justice system end when the criminal justice system is exhausted?  In other words, when the sentence is done?

General Kagan:  Because the Federal Government has a responsibility to ensure that release of the people it has in its custody is done responsibly, and is done in such a way --

Justice Scalia:  But you said no.  I mean, there is no constitutional power on the part of the Federal Government to protect society from sexual predators.  And, you know, once the Federal custody is at an end, it seems to me that's the only power you could be relying on.

General Kagan:  I think that the power to run a responsible criminal justice system extends to the way in which the Federal Government releases these prisoners.

Transcript at 7-8.  Here's another exchange between Kagan and Scalia on the same point:

Justice Scalia:  General Kagan, you are relying on the Necessary and Proper Clause, right?  You say:  But necessary and proper doesn't mean it is necessary and proper for the good of society.  It means it is necessary and proper for the execution of another power that the Federal Government is given by the constitution.

Now why is this necessary for the execution of any Federal power? . . .  Why is it necessary to any function that the Federal Government is performing?  It has completed its performance of the function of incarcerating this individual until he's served his punishment.

General Kagan:  The Court has always said, Justice Scalia, that the Necessary and Proper Clause, the question is is it necessary and proper to the beneficial exercise of Federal powers.  And so this is, that it is necessary and proper to the beneficial or, what I said before, the responsible exercise of the Federal power to operate a criminal justice system, which includes the responsibility to ensure that those people who have been in custody in that Federal--in that criminal justice system, are not released irresponsibly.

Transcript at 13-14.

Kagan argued that Congress adopted 4248 to solve a "transitional" problem: States's refusals or inabilities to accept or deal with sexually dangerous federal prisoners coming to the end of their federal sentences.  She relied upon two other long-standing federal statutes authorizing federal civil commitment--one for mentally ill federal prisoners and one for mentally ill acquities--both of which were designed to solve similar transitional problems. 

Kagan argued that the federal government would surely have the power to detain federal prisoners who contracted a disease (tuberculosis, in her hypothetical) while in federal prison beyond their prison sentence.  She argued that the government probably had a similar power to detain ex-military in a similar situation.  Both are based upon the government's special relationship with the detainees.  (See also Transcript pp. 22-23, exchange with Justice Sotomayor.)

Justices Scalia and Sotomayor seemed to search for an independent congressional authority, or special relationship, to support post-term civil detention, recognizing that the Necessary and Proper Clause traditionally complements enumerated powers, not federal programs that themselves are supported by enumerated powers.  Scalia added a federalism concern:  At one point, he questioned whether the government's position was a "recipe" for the federal government taking over everything; at another point, he raised the Tenth Amendment as a limitation on congressional authority over this area of traditional state concern.  Sotomayor added a civil liberties concern, asking whether the government could articulate any limits on its power to detain.  (Kagan answered that due process limited the government.)

Alan Dubois, for the respondents, argued that civil detention beyond the original prison term exceeded congressional authority largely for the reasons articulated by Justice Scalia in the quotes above.  Dubois argued that civil detention beyond the original term was a new act--not an extension of the government's power to run a criminal justice system--and therefore required independent Article I power.  The Necessary and Proper Clause--which acts only in conjunction with another enumerated power and alone doesn't authorize anything--was simply not up to the task.

Dubois distinguished the government's other civil commitment powers as directly related to its power to run a criminal justice system (and therefore directly supported by an enumerated power).  And he denied that the government would have power to quarantine or detain ex-prisoners who acquired a disease while in federal custody.

Dubois faced a line of questioning from Justice Breyer about the federal government's power to create mental health hospitals and, therefore, its authority to detain mentally ill individuals.  Justice Scalia supported Dubois by distinguished between Congress's power to fund and create such hospitals (which might be perfectly acceptable under the Spending Clause) and its lack of power to detain mentally ill individuals.

Dubois spent a good deal of time answering questions about alternatives to this bill--other ways that Congress might have achieved its goals.  For example, Dubois at several points argued that Congress would have had power to authorize prison terms or sanctions at the time of sentencing, but not after a prisoner had been released.  Here's an exchange with Justice Sotomayor:

Justice Sotomayor:  Could--what would happen if Congress said, as part of a sentence, a judge could incorporate a civil commitment finding and say:  You are going to serve X amount in jail, and Y amount, and then we are going to civilly commit you indefinitely, because as of today, I am finding you a sexual predator subject to a mental illness.

Would that be constitutional, and if not, why not?

Mr. Dubois:  Well, that would not be constitutional, Justice Sotomayor, because of the indefinite nature of the commitment.  You can envision a system--and we had that type of system in the '50s, '60s, and '70s--of indetermine [sic] sentencing, where--

Justice Sotomayor:  No, I--let's assume it incorporates all the protections of--this statute, subject to periodic review.

Mr. Dubois:  So if we have an indeterminate-type sentence where you--you get a sentence of ten years and you are periodically reviewed to see if you are safe to be released, of course that is constitutional.

Justice Sotomayor:  So it's constitutional because it's part of the sentence?

Mr. Dubois:  That's exactly right, Your Honor.  It's a part of the sentence.  It's part of the punishment for the crime which brought you into custody.

Transcript at 46-47.

Dubois similarly agreed with Justice Scalia that Congress might have achieved its goals through its spending power--that Congress could have funded state efforts to civilly commit sexually dangerous ex-prisoners.  Justice Stevens sounded frustrated with these lines and repeatedly brought the argument back to thisbill, helping Dubois move from formalistic positions on the way the bill was written to his core argument on the Necessary and Proper Clause. 

Chief Justice Roberts brought a helpful big-picture, practical perspective to the arguments, illustrated by this exchange:

Mr. Dubois:  Any time the Federal government is going to release these--a person they believe to be violent or dangerous, they are required to warn the Attorney General of the State within a certain period of time before their release.

At that point, I do believe it becomes a problem of the State polity.  If the State governor is going to be cavalier about that type of release, then I think the answer for that lies in the voters of that State, to say, no, we want you to take this problem seriously and --

Chief Justice Roberts:  Well, he's not going to be cavalier.  He's not going to have--he's going to say, don't do it.  This is a dangerous person, the Federal government, don't release him.

Mr. Dubois:  And he's--

Chief Justice Roberts:  And you want the Federal government to be in the position to say, well, we have to.

Mr. Dubois:  Exactly.  The Federal government has to, and at that point, the State must make the hard political decision.  Do we want to take this person on, spend the money necessary--

Chief Justice Roberts:  Well, it may be the Federal government's hard political position.  They are the person holding them, and the Attorney General is saying, don't release him, and then the Federal government is going to make the decision, well, we have to.

Mr. Dubois:  And so, in that sense, it is no decision at all because the Constitution requires that they be released.

Transcript at 39-41.

In all, the arguments seemed to set the stage for a ruling on the scope and breadth of the Necessary and Proper Clause--the argument that the government consistently put front and center, throughout the litigation.  Because the Court so rarely (if ever) rules on the precise contours of this clause alone, this could be a quite significant case on congressional authority.


January 12, 2010 in Congressional Authority, Federalism, Recent Cases, Spending Clause | Permalink | Comments (0) | TrackBack (0)

Perry v. Schwarzenegger, “The Proposition 8 Trial”: DAY TWO

The ongoing "Prop 8" trial in California, see our "primer" here, has just completed its second day.

For day one coverage and tweets, see the post with a list from our colleague Steve Saunders on the Sexual Orientation Law blog here, as well as the update from Shannon Minter, of National Center for Lesbian Rights here.

Minter (and others) tweets from day two of the trial are available here.  The testimony included the experts Nancy Cott and George Chauncey.

Cott_000 Professor Nancy Cott (pictured left) is Professor of American History and Pforzheimer GeorgeChauncey Foundation Director of the Schlesinger Library at Harvard University and the author of Public Vows: A History of Marriage and the Nation.  Cott testified and was cross-examined regarding marriage, coveture, polygamy, and the relationship between same-sex marriage and the divorce rate.

Professor George Chauncey (pictured right) is Professor of History at Yale University and the author of Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940, and Why Marriage? The History Shaping Today's Debate over Gay Equality.  Chauncey testified and was cross-examined about the history of sodomy laws, the history of discrimination including in public employment, in the Hollywood codes, and Anita Bryant's crusades in the 1970s, as well as current conditions such as Don't Ask, Don't Tell policy in the military and hate crimes.


January 12, 2010 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, History, News, Reconstruction Era Amendments, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Monday, January 11, 2010

Perry v. Schwarzenegger, “The Proposition 8 Trial”: A Primer

The well-publicized trial on the constitutionality of California’s Proposition 8 banning same-sex marriage begins today before Judge Vaughn Walker in the United States District Court for the Northern District of California (court website for case here). Recall that the California Supreme Court upheld Proposition 8 as we previously discussed here.  Publicity of this federal trial has itself been an issue: SCOTUS has just stayed the order that the court's trial proceedings were to be made available on You Tube.  

Update: Live blogging of proceedings from anti-Prop 8 perspective here.

Although there are some statements in the press that this is the first same-sex marriage trial, that’s not exactly true.  After the Hawaii Supreme Court decision in Baehr v. Lewin, state court judge Kevin Chang held a trial on the issue of whether the state had compelling reasons to prohibit same-sex marriage.  In an extensive Order in late 1996, Judge Chang held that the state failed to satisfy its burden of showing compelling interests and that the law was therefore unconstitutional.  This order was later stayed because of developments in Hawaii.

But certainly this is the first federal trial.  Interestingly, counsel for plaintiffs in the case are outside the usual LGBT movement, but are Theodore Olsen and David Boies, the attorneys who represented Bush and Gore respectively in Bush v. Gore.  Also interestingly, the state of California is not defending the lawsuit (Governor Schwarzenegger has taken no position and Attorney General Jerry Brown supports the plaintiffs).   California’s position is therefore being argued by intervenors including, who the trial judge described as the “proponents” of Proposition 8.  A New Yorker article published today discusses the attorneys, the parties, and some of the arguments.

The best description of the issues to be determined at trial is in Judge Vaughn Walker’s from-the-bench order denying the motion for summary judgment filed by the proponents of Proposition 8 (transcript available here; order at pages 72- 91).

478px-Vaughn_Walker Judge Walker (pictured), Chief Judge of the Northern District of California, states that he cannot determine that the due process claims are foreclosed because although the government interests that Proposition 8 fosters may be "akin to a legislative fact," "embedded within such a legislative fact are certain assumptions about human behavior and relationships that have simply not been developed in the record."

On the equal protection claim, Judge Walker ruled that there are genuine issues of fact concerning the level of scrutiny to be applied.  He ruled that a sex/gender discrimination was not foreclosed as a matter of law.  He also ruled that the level of scrutiny to be applied to sexual orientation was also not determined, holding that while the proponents seem to accept that gays and lesbians have faced discrimination and "contribute equally to society," there remains material issues of fact on the Carolene products factors of "immutability and political power."  Additionally, Walker decided that whether or not Proposition 8 was enacted with animus remained an issue requiring factual development and specifically rejected the proponents argument that a finding of animus would mean that "everyone who opposes same-sex marriage is a bigot."

Regardless of the level of scrutiny - - - be it intermediate scrutiny based on gender/sex; some form of heightened scrutiny based on a Carolene Products analysis or on a Romer v. Evans analysis of animus; or lowest tier rational basis scrutiny - - - Judge Walker held that there remain material issues of fact both on  whether the actual state interests satisfy the appropriate standard and on whether those interests are actually served by the same-sex marriage ban as measured by the appropriate standard.

Thus, the trial will feature not only the plaintiffs, but a large number of experts. The trial is also expected to  highlight the role of organizations such as, one of the proponents, on the issue of animus in the Proposition 8 campaign.


January 11, 2010 in Cases and Case Materials, Current Affairs, Family, Fourteenth Amendment, Fundamental Rights, Gender, Recent Cases, Reconstruction Era Amendments, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)