Tuesday, April 28, 2015
The Court today heard oral arguments in two parts in the consolidated cases of Obergefell v. Hodges on certiorari from the Sixth Circuit opinion which had created a split in the circuits on the issue of the constitutionality of same-sex marriage bans. There have been a record number of amicus briefs filed in the cases highlighting the interest in the case.
For oral argument on the first certified question - - -does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? - - - Mary Bonauto argued for the Petitioners; Solicitor Donald Verrilli argued for the United States as amicus curiae supporting Petitioners; and John Bursh, as Special Assistant Attorney for Michigan argued for Respondents.
For oral argument on the second certified question - - - does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? - - -Douglas Hallward-Driemeier argued for Petitioners and Joseph Whalen, Associate Solicitor General of Tennessee, argued for Respondents.
The Court and the advocates acknowledged that the second question is only reached if the first question is answered in the negative: Justice Ginsburg and Justice Kagan both posited this principle with Hallward-Driemeier and Whalen, respectively, agreeing. Chief Justice Roberts noted that" we only get to the second question if you've lost on that point already, if we've said States do not have to recognize same-sex marriage as a marriage," and later raised the issue of whether the second question made practical sense:
It certainly undermines the State interest that we would, assuming arguendo, have recognized in the first case, to say that they must welcome in their borders people who have been married elsewhere. It'd simply be a matter of time until they would, in effect, be recognizing that within the State.
The themes of the oral arguments held no surprising issues:
Is a same-sex marriage decision by the Court premature? Interestingly, Justice Kennedy pointed out that it is "about the same time between Brown and Loving as between Lawrence and this case. It's about 10 years."
Should it be the Court or the states that should decide? The question of the proper role of judicial review has long preoccupied the courts in the context of same-sex marriage. Justice Scalia raised this issue several times, but when John Bursh raised it on behalf of Michigan, Justice Kagan responded that "we don't live in a pure democracy; we live in a constitutional democracy."
Is the race analogy apt? Bursch distinguished Loving (as well as Turner v. Safley and Zablocki v. Redhail) because previous cases involved man-woman marriage and "States' interest in linking children to their biological" parents.
Is there a slippery slope? What about polygamous and incestuous marriages? What about age of consent laws?
What about religious freedom? How do we know that ministers won't be forced to perform "gay marriages"?
Should the case be resolved on Equal Protection or Due Process? Justice Kennedy asked General Verrilli about Glucksberg, Verrilli replied:
GENERAL VERRILLI: Justice Kennedy, forgive me for answering the question this way. We do recognize that there's a profound connection between liberty and equality, but the United States has advanced only an equal protection argument. We haven't made the fundamental rights argument under Glucksberg. And therefore, I'm not sure it would be appropriate for me not having briefed it to comment on that.
JUSTICE KENNEDY: Well, can you tell me why you didn't make the fundamental argument?
GENERAL VERRILLI: Well, because we think well, because we think while we do see that there is, of course, this profound connection, we do think that for reasons like the ones implicit in the Chief Justice's question, that this issue really sounds in equal protection, as we understand it, because the question is equal participation in a State conferred status and institution. And that's why we think of it in equalprotection terms
Counsel, I'm I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?
The open question is whether the Court's opinion will be as predictable as the questions.
April 28, 2015 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Full Faith and Credit Clause, Fundamental Rights, Oral Argument Analysis, Religion | Permalink | Comments (0) | TrackBack (0)
Friday, April 24, 2015
Before 2011, Arizona law required that voter registration forms include a blank space for the registrant’s party preference. But a 2011 law required the voter registration form distributed by the Arizona Secretary of State to list the two largest parties (as measured by number of registered voters) on the form, as well as provide a blank line for “other party preferences.” Ariz. Rev. Stat. § 16-152(A)(5).
In response to the amendment, the Arizona Secretary of State revised box 14 on the Registration Form, and the opinion includes this illustration:
Minority parties Arizona Green Party and the Arizona Libertarian Party challenged the new law as violative of their First and Fourteenth Amendment rights. In its opinion in Arizona Libertarian Party v. Bennett, the Ninth Circuit upheld the statute as constitutional.
The panel majority opinion by Judge Tashima noted the intertwining of the equality and First Amendment claims:
“Restrictions on voting can burden equal protection rights as well as ‘interwoven strands of liberty’ protected by the First and Fourteenth Amendments—namely, the ‘right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.’”
It stated that the party challenging the law bears “the initial burden of showing that [the state’s] ballot access requirements seriously restrict the availability of political opportunity" and that here any burden was de minimis. The panel thus applied rational basis scrutiny which the new form easily passed.
Concurring, Judge McKeown argued that the rational basis review burden-shifting standards derived from Ninth Circuit precedent and which the majority applied were "inconsistent with the Supreme Court’s approach to analyzing voting rights challenges." Instead, the court should apply the balancing tests articulated in Burdick v. Takushi (1992) and reiterated in Crawford v. Marion County Election Board (2008), although Judge McKeown acknowledged that the "semantic distinction between the balancing test and the rational basis standard" may make little difference in most cases. Indeed, here Judge McKeown recognized that Arizona's asserted interests in reducing printing costs and easing administrative efficiency are “sufficiently weighty to justify” the speculative burden on the plaintiff minority parties' rights.
Thursday, April 16, 2015
The United States Supreme Court is set to hear oral arguments on April 28 in the same-sex marriage cases, now styled as Obergefell v. Hodges, a consolidated appeal from the Sixth Circuit’s decision in DeBoer v. Snyder, reversing the district court decisions in Kentucky, Michigan, Ohio, and Tennessee that had held the same-sex marriage bans unconstitutional, and creating a circuit split.
Recall that the Court certified two questions:
1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The case has attracted what seems to be a record number of amicus briefs. As we discussed last year, previous top amicus brief attractors were the same-sex marriage cases of Windsor and Perry, which garnered 96 and 80 amicus briefs respectively, and the 2013 affirmative action case of Fisher v. University of Texas at Austin, which attracted 92. [Note that the "Obamacare" Affordable Care Act cases including 2012's consolidated cases of NFIB v. Sebelius attracted 136 amicus briefs.]
The count for Obergefell v. Hodges stands at 139. 147 [updated: 17 April 2015]
76 amicus briefs support the Petitioners, who contend that same-sex marriage bans are unconstitutional.
58 66 amicus briefs support the Respondents, who contend that same-sex marriage bans are constitutional.
05 amicus briefs support neither party (but as described below, generally support Respondents).
According to the Rules of the Supreme Court of the United States, Rule 37, an amicus curiae brief’s purpose is to bring to the attention of the Court “relevant matter not already brought to its attention by the parties.” While such a brief “may be of considerable help to the Court,” an “amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”
An impressive number of the Amicus Briefs are authored or signed by law professors. Other Amici include academics in other fields, academic institutions or programs, governmental entities or persons, organizations, and individuals, often in combination. Some of these have been previously involved in same-sex marriage or sexuality issues and others less obviously so, with a number being religious organizations. Several of these briefs have been profiled in the press; all are linked on the Supreme Court’s website and on SCOTUSBlog.
Here is a quick - - - if lengthy - - - summary of the Amici and their arguments, organized by party being supported and within that, by identity of Amici, beginning with briefs having substantial law professor involvement, then government parties or persons, then non-legal academics, followed by organizations including religious groups, and finally by those offering individual perspectives. [Late additions appear below]Special thanks to City University of New York (CUNY) School of Law Class of 2016 students, Aliya Shain & AnnaJames Wipfler, for excellent research.
April 16, 2015 in Courts and Judging, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Foreign Affairs, Fourteenth Amendment, Free Exercise Clause, Full Faith and Credit Clause, Fundamental Rights, Gender, History, Interpretation, Privacy, Profiles in Con Law Teaching, Race, Recent Cases, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality, Standing, Supreme Court (US), Theory | Permalink | Comments (3) | TrackBack (0)
Monday, March 30, 2015
In a summary order today, the United States Supreme Court listed among the cases denied certiorari the controversial "Cinco de Mayo" case, Dariano v. Morgan Hill Unified School District.
The original controversy began with a claim by students that their constitutional rights were violated when school officials banned their American flag clothing during a Cinco de Mayo celebration. The school officials regulated American flag clothing "in [the] context of ongoing racial tension and gang violence within the school, and after a near-violent altercation had erupted during the prior Cinco de Mayo over the display of an American flag.” The district judge rejected the students' First Amendment and Equal Protection claims. The Ninth Circuit affirmed, and later denied en banc review, over a dissent, and issued an amended panel opinion which added several paragraphs of analysis.
The application of the classic Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) was predictable, but the amended opinion also discussed the “heckler’s veto,” a concept that is in some senses embedded in Tinker's "disruption" standard.
However, with the denial of certiorari, this particular controversy - - - which had often been expressed as allowing a school district to ban the American flag - - - has apparently been decided, at least in the context of this particular school for a particular holiday on a particular year.
However, as the opinion of the Ninth Circuit as amended noted, situations involving displays of the Confederate flag in the school context have been frequently litigated. And this Term, the Court is considering a Confederate flag outside the school context in the "license plate" case just argued last week, Walker v. Texas Sons of Confederate Veterans.
Thursday, March 26, 2015
Governor Mike Pence of Indiana in a "private ceremony," signed the controversial Senate Act 101, a state RFRA, into law.
Like the federal RFRA - - - the basis for the majority opinion of the United States Supreme Court in Hobby Lobby v. Burwell finding that the so-called "contraceptive mandate" of "Obamacare" was invalid - - - the Indiana RFRA provides in section 8:
(a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability.
(b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates that application of the burden to the person:
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
The Indiana statute makes clear that a if a person's exercise of religion "is likely to be substantially burdened," the person may "assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding."
For many, this signals a religious exemption from anti-discrimination laws protecting LGBTQ persons. (Although Indiana does not include sexuality or gender identity in its discrimination laws, some localities and institutions do.) Governor Pence alluded to this argument, even as he interestingly (and some might say misleadingly) highlighted the "government action" requirement in his signing statement:
“This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it. In fact, it does not even apply to disputes between private parties unless government action is involved. For more than twenty years, the federal Religious Freedom Restoration Act has never undermined our nation’s anti-discrimination laws, and it will not in Indiana."
Nevertheless some companies are already reacting to a perception that Indiana has now sanctioned LGBTQ discrimination.
Wednesday, March 25, 2015
The Supreme Court ruled today (5-4, with Justice Kennedy joining the four progressives in the majority) that the district court erred in its analysis of the plaintiffs' racial gerrymandering claims against the State of Alabama in the wake of the state's redistricting after the 2010 census. The ruling, a victory for the plaintiffs, sends the case back to the district court and allows the parties to introduce additional evidence to support their cases. It also gives the momentum to the plaintiffs on the merits. We previously posted on the case here.
The case now goes back to the district court for reconsideration in light of the four points below. Today's ruling also allows the plaintiffs to submit additional evidence in support of their claims, thus strengthening their district-specific discrimination claims, their claims that race was a predominate factor in drawing certain districts, and their argument that the state's use of race wasn't sufficiently tailored to comply with Section 5 of the Voting Rights Act.
Thus while today's ruling isn't an outright victory for the plaintiffs, it gives them the clear momentum on remand.
The case, Alabama Legislative Black Caucus v. Alabama, arose after Alabama redrew its legislative districts in a way that packed black voters into existing majority-minority districts. The state said it did this in order to avoid retrogression under Section 5 of the Voting Rights Act. (The state was then covered by Section 5, pre-Shelby County.) The plaintiffs challenged the move as a racial gerrymander. The three-judge district court rejected the challenge and ruled in favor of the state.
The Court (by Justice Breyer) vacated that ruling and remanded the case. Justice Breyer wrote that the district court made four legal mistakes:
1. The district court treated the plaintiffs' challenge to the redistricting as a whole, when it should have treated the challenge in specific electoral districts. The Court said that the district court concluded that because racial criteria had not predominated in redrawing some districts, racial criteria did not predominate "with respect to the State as an undifferentiated whole." This was in error. Moreover, the Court held that the plaintiffs didn't pitch their case only against the State as an undifferentiated whole (as the dissent argued); instead, the plaintiffs presented evidence to support a district-specific approach (even if they could have made this case "more clearly")--the approach that the district court should have used.
The Court ordered the district court to consider a district-specific approach on remand and allowed the plaintiffs to produce additional evidence to support their claims.
2. The district court erroneously held that the Alabama Democratic Conference lacked standing to make its claims against redistricting as a whole and as to four individual Senate districts. The district court said that the Conference lacked associational standing, because the record didn't clearly identify the districts where individual Conference members resided. The Court said this was wrong--and that the district court should have given the Conference an opportunity to show standing. The Court held that the recorded supported the fact that the Conference was state-wide, and had members in each of the state's majority-minority districts. The Court ordered the district court on remand to "reconsider the Conference's standing by permitting the Conference to file its list of members and permitting the State to respond, as appropriate."
3. The district court erred by holding in the alternative that the race was not a predominant factor in the creation of any individual district. The Court held that the district court "did not properly calculate 'predominance,'" because it concluded that the state considered race along with other race-neutral factors, so that the other factors outweighed the consideration of race. Justice Breyer explained:
In our view, however, an equal protection goal is not one factor among others to be weighed against the use of race to determine whether race "predominates." Rather, it is part of the redistricting background, taken as a given, when determining whether race, or other factors, predominate in a legislator's determination as to how equal population objections will be met."
In other words, the question whether race predominates compares a state's consideration of race with its consideration of race-neutral factors like compactness, contiguity, respect for political subdivisions or communities, incumbency protection, and political affiliation. But that comparison list does not include equal population. Equal population is different, because it's constitutionally required. "It is not a factor to be treated like other nonracial factors when a court determines whether race predominates over other, 'traditional' factors in the drawing of district boundaries." Instead, it's a "background rule against which redistricting takes place." And the district court was wrong to say otherwise.
Treating equal population as a background rule (and not one of the nonracial factors), the Court said that race might well have predominated in the drawing of certain districts. It remanded for reconsideration.
4. The district court wrongly concluded that even if race predominated, the gerrmandering claims failed because the redrawn districts satisfied strict scrutiny--that is, they are drawn to comply with Section 5 of the VRA. The Court said that the district court misperceived Section 5: It "does not require a covered jurisdiction to maintain a particular numerical minority" (as the district court held), but rather "requires the jurisdiction to maintain a minority's ability to elect a preferred candidate of choice."
Justice Scalia wrote the principal dissent, joined by Chief Justice Roberts and Justices Thomas and Alito. Justice Scalia said that the plaintiffs screwed up their case by alleging a state-wide violation--a claim the law doesn't allow--and that the majority wrongly gave them a do-over.
[A]llowing appellants a second bite at the apple invites lower courts similarly to depart from the premise that our is an adversarial system whenever they deem the stakes sufficiently high. Because I do not believe that Article III empowers this Court to act as standby counsel for sympathetic litigants, I dissent.
Justice Thomas wrote a separate dissent for himself alone to say how "our jurisprudence in this area continues to be infected with error." "We have somehow arrived at a place where the parties agree that Alabama's legislative districts should be fine-tuned to achieve some 'optimal' result with respect to black voting power; the only disagreement is about what percentage of blacks should be placed in those optimized districts. This is nothing more than a fight over the 'best' racial quota.'"
Friday, March 20, 2015
In a brief filed today in the First Circuit in Conde-Vidal v. Armendariz, the Solicitor General of the Commonwealth of Puerto Rico essentially sided with the appellants and conceded its same-sex marriage ban is unconstitutional.
Recall that several months ago, United States District Judge for the District of Puerto Rico Juan Perez-Gimenez dismissed the constitutional challenge to Puerto Rico's law defining marriage as "man and woman" and refusing recognition to marriages "between persons of the same sex or transexuals." In large part, Judge Perez-Gimenez relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question."
The challengers appealed to the First Circuit and the Commonwealth's brief "concedes that Baker’s rationale that federal courts lack jurisdiction to entertain these claims for lack of a substantial federal question can no longer be deemed good law."
It is not usual for the Executive Branch of the Commonwealth of Puerto Rico to refuse to defend the constitutionality of legally-enacted statutes. It is even less usual to adopt a somewhat different position at the appellate level than the one espoused before the lower court. But this is not a usual case and neither the law nor common sense requires us to treat it as such.
In a constitutional democracy there are some rights that have been reserved to the People directly and which no government may infringe, regardless of individual or personal views on the matter. “Our obligation [like this Court’s] is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).
Article 68 of the Civil Code of Puerto Rico excludes LGBT couples from the legal entitlements and rights attendant to civil marriage. Thus, the Commonwealth of Puerto Rico acknowledges that the statute in controversy raises substantial constitutional questions anent the constitutional guarantees of equal protection of the laws and substantive due process.
Because Puerto Rico’s marriage ban impermissibly burdens Plaintiffs ́ rights to the equal protection of the laws and the fundamental right to marry, we have decided to cease defending its constitutionality based on an independent assessment about its validity under the current state of the law. However, “i[t] is emphatically the province and duty of the judicial department to say what the law is.” Windsor, 133 S.Ct. 2675, at 2688 (quoting Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1802)), and, since the District Court entered judgment in this case, it is this particular Court’s duty to review the legal conclusions there reached so that they may be brought up to date in accordance with newer developments in this important area of constitutional law.
If History has taught us anything, it is that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Lawrence, 579 U.S. at 579. This case represents but another attempt from a politically disadvantaged group of our society to be included within the full scope of the legal and constitutional protections that most of us take for granted. Plaintiffs seek no preferential treatment; only equality. The Executive Branch of the Commonwealth recognizes the LGBT community’s right to equality under the law.
Defendants-Appellees request that this Honorable Court reverse the Judgment of the District Court that dismissed Plaintiffs-Appellants’ complaint for lack of a substantial federal question.
Given this concession, the First Circuit - - - which has not had occasion to rule on a challenge to a "state" same-sex marriage ban - - - is sure to find that Puerto Rico's same-sex marriage ban is unconstitutional, assuming it reaches the issue before the United States Supreme Court decides the issue in the cases presently before it.
Recall that the First Circuit did rule that DOMA, the Congressional statute barring federal recognition of same-sex marriage, was unconstitutional in 2012, before the United States Supreme Court held DOMA unconstitutional in United States v. Windsor, but after the United States Attorney General, Eric Holder, announced the Department of Justice would not defend the constitutionality of DOMA.
Wednesday, March 18, 2015
The Fifth Circuit denied the plaintiffs' claims for attorneys fees in the 2012 case out of San Antonio over Texas redistricting. The ruling marks a bitter end for the plaintiffs in this long-running and complicated dispute that put the plaintiffs between two district courts, two different sections of the Voting Rights Act, the Texas legislature, and the Supreme Court--and stuck them with a $360,000 bill for . . . a victory. The ruling rewards Texas's foot-dragging through the preclearance process as two cases simultaneously worked their ways through the courts.
Recall that the plaintiffs sued Texas in the Western District of Texas over the legislature's redistricting plan. The plaintiffs argued that the plan violated Section 2 of the Voting Rights Act and the Equal Protection Clause, and that it hadn't been precleared under Section 5. (The preclearance case was pending before a three-judge court in D.C.) The San Antonio court enjoined the legislature's redistricting plan because it hadn't been precleared and drew its own district maps.
The Supreme Court then stepped in and rejected the San Antonio court's maps, but gave the court another shot at drawing them. The San Antonio court redrew the maps according to the Supreme Court's new standard. Following the Supreme Court, the San Antonio court issued its new maps as "a result of preliminary determinations regarding the merits of the Section 2 and constitutional claims presented in this case, and application of the 'not insubstantial' standard for the Section 5 claims." (That "not insubstantial" standard said that the San Antonio court could only consider the Section 5 preclearance claim insofar as the plaintiffs' challenges in the D.C. court were "not insubstantial." But the merits of the Section 5 claim were reserved to the D.C. court (and not the San Antonio court).)
The D.C. court denied preclearance to the Texas legislature's maps. Texas appealed, but used the San Antonio court's plan as an interim plan for its 2012 elections.
In 2013, the Supreme Court struck the preclearance coverage formula in Shelby County and later vacated the D.C. court's judgment denying preclearance to the legislature's plan. At the same time, Governor Perry signed a bill repealing the legislature's plan and adopting the court's plan. The San Antonio district court dismissed the case (or what remained of it, the plaintiffs' Section 2 and constitutional claims).
This seems like a win for the plaintiffs. So why no attorney fees?
The Fifth Circuit held that the plaintiffs weren't "prevailing parties" under the fee-shifting statute. The court said that the plaintiffs couldn't have won their Section 5 claim at the San Antonio court, because only the D.C. court can rule on the merits of a Section 5 claim. And the Fifth Circuit said that the plaintiffs didn't win their Section 2 and constitutional claims at the San Antonio court, because the San Antonio court never evaluated them.
The Fifth Circuit suggested that the plaintiffs might have been "prevailing parties" under a "catalyst theory," by merely demonstrating that their lawsuit caused Texas to alter its conduct. But the Fifth Circuit noted that the Supreme Court rejected this approach in Buckhannon.
The Fourth Circuit ruled in Greenville County Republican Party v. Greenville County Election Commission that various challenges to South Carolina's municipal election procedures lacked justiciability and dismissed the case.
South Carolina law required municipalities to adopt by ordinance either a partisan or nonpartisan way of nominating candidates for public office in municipal elections. If a municipality selected the partisan method, South Carolina law allowed a certified political party to select one of three procedures: a party primary, a party convention, or a petition. Nomination by party primary required an open primary. Nomination by convention required a 3/4 super-majority vote of the party membership.
The Greenville County Republican Party Executive Committee, an affiliate of the state Republican party but not itself a certified political party, challenged these procedures under the First, Fifth, and Fourteenth Amendments. The Committee sought declaratory and injunctive relief, and monetary damages for having to implement the procedures in prior elections.
As the case worked its way up and down, Greenville changed its ordinance to nominate candidates using a nonpartisan procedure.
The Fourth Circuit ruled that this mooted the Committee's claims for prospective relief. In particular, the court said that the County's decision was not capable of repetition but evading review, because the Committee didn't satisfy its burden of establishing "a reasonable expectation" that it wouldn't go back to the partisan method of nominating candidates for future elections.
As to the surviving claims, the court held that the Committee lacked standing. The court said that the Committee didn't suffer any harm from the super-majority requirement for convention-nominated candidates; instead, the state party suffered that harm--making the Committee's claim a nonjusticiable third-party claim. The court also held that the Committee couldn't satisfy the traceability prong of standing, because it was the state party, not Greenville, that elected to use the open primary system. (The state Republican Party was at one time party to the suit, but withdrew.)
The ruling ends this suit, and, in the wake of Greenville's decision to use a nonpartisan nominating process, almost certainly ends any challenges to Greenville's old partisan process.
March 18, 2015 in Association, Cases and Case Materials, Elections and Voting, Equal Protection, Fifth Amendment, First Amendment, Fourteenth Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)
Sunday, March 8, 2015
Over at the Los Angeles Times in an Op-Ed, ConLawProf Ronald J. Krotoszynski Jr. argues that present First Amendment doctrine would preclude the famous Selma march being commemorated on its 50th anniversary today.
Krotoszynski contends that it would now be "impossible to obtain a federal court order permitting a five-day protest march on a 52-mile stretch of a major U.S. highway" and that under "contemporary legal doctrine, the Selma protests would have ended March 8, 1965."
He faults the reshaping of public forum doctrine and time, place or manner restrictions so that "protests" are now relegated to "designated speech zones." He highlights the recent litigation regarding the First Amendment rights of protestors in Ferguson, which, although successful on behalf of the protestors, was a success that was both delayed and partial.
Krotoszynski's op-ed is an important reminder that while voting rights and equality are integral to the remembrance of Selma as President Obama elucidated in his speech, "Selma's main lesson" might also be that "taking to the streets and other public spaces in protest is central to our democracy."
On the 5oth anniversary of the Selma-Montgomery March, President Obama and other dignitaries gathered in Selma to commemorate the iconic protest which is widely believed to have galvanized support for the Voting Rights Act of 1965.
Given the Court's closely divided and controversial 2013 decision in Shelby County (Alabama) v. Holder finding parts of the Voting Rights Act unconstitutional, as well as subsequent efforts by states to enact voting restrictions, Obama not surprisingly included pertinent references in his speech:
And with effort, we can protect the foundation stone of our democracy for which so many marched across this bridge –- and that is the right to vote. Right now, in 2015, 50 years after Selma, there are laws across this country designed to make it harder for people to vote. As we speak, more of such laws are being proposed. Meanwhile, the Voting Rights Act, the culmination of so much blood, so much sweat and tears, the product of so much sacrifice in the face of wanton violence, the Voting Rights Act stands weakened, its future subject to political rancor.
How can that be? The Voting Rights Act was one of the crowning achievements of our democracy, the result of Republican and Democratic efforts. President Reagan signed its renewal when he was in office. President George W. Bush signed its renewal when he was in office. One hundred members of Congress have come here today to honor people who were willing to die for the right to protect it. If we want to honor this day, let that hundred go back to Washington and gather four hundred more, and together, pledge to make it their mission to restore that law this year. That’s how we honor those on this bridge.
Obama left unelaborated what Congress might do in light of the Court's decision in Shelby. A full text of Obama's speech is here, but the video is worth watching:
Monday, March 2, 2015
Senior United States District Judge Joseph Bataillon has enjoined Nebraska's same-sex marriage ban in its state constitution and found it violates the Fourteenth Amendment in his Memorandum and Order today in Waters v. Ricketts.
Recall that the United States Supreme Court will be hearing the issue this Term, having granted certiorari to the Sixth Circuit's divided opinion in the consolidated cases of DeBoer v. Snyder. The Court previously denied certiorari to opinions from the Fourth, Seventh, and Tenth Circuits all finding that same-sex marriage bans were unconstitutional, and the Ninth Circuit has ruled similarly. The Eighth Circuit, in which Nebraska is located, has not issued a definitive opinion on the constitutionality of same-sex marriage.
Judge Joseph Bataillon's ruling sounds in both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. He finds that marriage is a "fundamental liberty" and that the same-sex marriage ban is a facial classification based on gender. He also finds that Nebraska's state interests, including opposite sex parenting and protecting tradition, are insufficient. Throughout his analysis, he relies heavily on the Seventh Circuit's opinion in Baskin and the Ninth Circuit's opinion in Latta.
Interestingly, Judge Bataillon offers a prediction of the Court's conclusion:
The court finds the plaintiffs have demonstrated they will likely prevail on the merits of their claim. The court is persuaded that the Supreme Court will ultimately endorse, for one reason or another, the results obtained in the Fourth, Seventh, Ninth and Tenth Circuit challenges to same sex marriage bans.
Judge Bataillon supports this statement with an interesting footnote :
This conclusion is supported by the Supreme Court's recent denial of a stay of an Alabama district court decision invalidating a same-sex marriage ban. See Strange v. Searcy, 2015 WL 505563 (U.S. Feb. 9, 2015) (denying of application for stay of an injunction preventing Attorney General of Alabama from enforcing Alabama laws as defining marriage as a legal union of one man and one woman) (Justice Thomas noting in dissent that the failure to stay the injunction “may well be seen as a signal of the Court's intended resolution [of the constitutional question it left open in Windsor]."); see also Armstrong v. Brenner, No. 14A650, 2014 WL 7210190 (U.S. Dec. 19, 2014) (denying stay of preliminary injunction barring enforcement of Florida’s marriage exclusion); Wilson v. Condon, 14A533, 2014 WL 6474220 (U.S. Nov. 20, 2014) (denying stay of judgment finding South Carolina’s marriage exclusion laws unconstitutional); Moser v. Marie, 14A503, 2014 WL 5847590 (U.S. Nov. 12, 2014) (denying stay of preliminary injunction preventing enforcement of Kansas’ marriage exclusion); Parnell v. Hamby, No 14A413, 2014 WL 5311581 (U.S. Oct. 17, 2014) (denying stay of district court decision declaring Alaska’s marriage exclusion unconstitutional); Otter v. Latta, No. 14A374, 2014 WL 5094190 (U.S. Oct. 10, 2014) (denying application for stay of Ninth Circuit’s judgment finding Idaho’s marriage exclusion laws unconstitutional)
Also, the Supreme Court itself has telegraphed its leanings. See Lawrence [v. Texas] 539 U.S. at 605 (Scalia, J., dissenting) (stating that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage); see also United States v. Windsor, 133 S. Ct. 2675, 2709 (2013) (Scalia, J., dissenting) (essentially stating that the majority opinion in Windsor makes a finding of unconstitutionality regarding state same-sex marriage bans "inevitable.")
The use of Scalia's dissenting opinions is yet another example of the Scalia's "petard" phenomenon.
Also interesting is Judge Bataillon's rejection of injury to Nebraska should there be a preliminary injunction:
All but one of the plaintiff couples are married in a state that recognizes same-sex marriage. All of the couples have been in committed relationships for many years. Those that have resided in Nebraska have not caused damage to society at large or to the institution of marriage.
The preliminary injunction is effective March 9, at 8:00 am. Nebraska is reportedly appealing and seeking an emergency stay.
March 2, 2015 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Gender, Interpretation, Opinion Analysis, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Thursday, February 12, 2015
Federal District Judge Callie V. S. Granade has issued her 8 page Order in Strawser v. Strange regarding the applicability of her previous decision finding Alabama's same-sex marriage ban unconstitutional.
The Order concludes:
Accordingly, the Court once again makes the following declaration: It is ORDERED and DECLARED that ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975 § 30-1-19 are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Probate Judge Don Davis is hereby ENJOINED from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriage. If Plaintiffs take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order pertaining to same-sex marriage. This injunction binds Judge Don Davis and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize same-sex marriage.
Now the situation really is like Cooper v. Aaron: there is a direct order to state officials.
Monday, February 9, 2015
Supreme Court Denies Stay of Alabama Same-Sex Marriage While Alabama Supreme Court Chief Justice Continues the Argument
Over a dissenting opinion by Justice Thomas, joined by Justice Scalia, the Court denied the application for a stay in Strange v. Searcy. Recall that in January, Alabama District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage and the recognition of same-sex marriages from other states.
The controversial Chief Judge of the Alabama Supreme Court Roy Moore has reacted negatively to the federal court opinion, including penning a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order. That letter prompted an ethics complaint filed against Roy Moore from the Southern Poverty Law Center arguing that:
Chief Justice Roy Moore has improperly commented on pending and impending cases; demonstrated faithlessness to foundational principles of law; and taken affirmative steps to undermine public confidence in the integrity of the judiciary. For all these reasons, we respectfully request that this Judicial Inquiry Commission investigate the allegations in this complaint and recommend that Chief Justice Moore face charges in the Court of the Judiciary.
assist weary, beleaguered, and perplexed probate judges to unravel the meaning of the actions of the federal district court in Mobile, namely that the rulings in the marriage cases do not require you to issue marriage licenses that are illegal under Alabama law.
Judge Moore's argument that the state need not comply with federal decisions has prompted some commentators to make comparisons to Alabama's position during the Civil Rights Era, including a thoughtful WaPo piece by ConLawProf Ronald J. Krotoszynski Jr. at University of Alabama Law School.
The dissenting opinion from Justice Thomas (joined by Scalia) did not mention Judge Moore by name, but did include a decisive nod to some of Moore's arguments:
Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds. *** It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.
Perhaps more importantly, Justice Thomas notes that the constitutionality of same-sex marriage is now before the Court, but yet
the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013). This acquiescence may well be seen as a signal of the Court’s intended resolution of that question.
Justice Thomas is not the only one considering whether the Court's denial of a stay and thus allowing same-sex marriages to proceed in Alabama is a "signal" of the Court's leanings in DeBoer v. Snyder.
February 9, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Interpretation, News, Opinion Analysis, Recent Cases, Supremacy Clause, Supreme Court (US), Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Tuesday, January 27, 2015
In a Letter to the Governor of Alabama, Robert Bentley today, the Chief Justice of Alabama Supreme Court, Roy Moore (pictured) asked the Governor to continue to uphold the respect for different-sex marriage and reject the judicial "tyranny" of the federal district court's opinion last Friday finding the same-sex marriage ban unconstitutional. He writes grounds the sacredness of man-woman marriage in the Bible, and writes
Today the destruction of that institution is upon us by federal courts using specious pretexts based on the Equal Protection, Due Process, and Full Faith and Credit Clauses of the United States Constitution. As of this date, 44 federal courts have imposed by judicial fiat same-sex marriages in 21 states of the Union, overturning the express will of the people in those states. If we are to preserve that “reverent morality which is our source of all beneficent progress in social and political improvement," then we must act to oppose such tyranny!
He argues that United States district court opinions are not controlling authority in Alabama, citing a case, Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 744n.5 (Ala. 2009), regarding a common law negligence claim rather than a constitutional issue. He does not argue the Supremacy Clause.
Justice Moore is no stranger to controversial positions, including promoting his biblical beliefs over federal law, and gained notoriety as the "the Ten Commandments Judge." Recall that Moore was originally elected to the Alabama Supreme Court with the campaign promise to “restore the moral foundation of the law” and soon thereafter achieved notoriety for installing a 5,280-pound monument depicting the Ten Commandments in the rotunda of the Alabama State Judicial Building. See Glassroth v. Moore, 335 F.3d 1282, 1285 (11th Cir. 2003). After federal courts found that the monument violated the Establishment Clause of the First Amendment, Glassroth v. Moore, 229 F. Supp. 2d 1290, 1304 (M.D. Ala. 2002), aff’d, Glassroth v. Moore, 335 F.3d 1282, 1284 (11th Cir. 2003), Chief Justice Moore was ordered to remove the monument. See Glassroth v. Moore, No. 01-T-1268-N, 2003 LEXIS 13907 (M.D. Ala. Aug. 5, 2003). After the deadline to remove the monument passed, Chief Justice Moore was suspended, with pay, pending resolution of an ethics complaint, which charged that he failed to “observe high standards of conduct” and “respect and comply with the law.” Jeffrey Gettleman, Judge Suspended for Defying Court on Ten Commandments, N.Y. Times, August 23, 2003, at A7.
January 27, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Full Faith and Credit Clause, Fundamental Rights, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US), Theory | Permalink | Comments (3) | TrackBack (0)
Friday, January 23, 2015
In a ten page Opinion and Order late Friday in Searcy v. Strange, Alabama District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage and the recognition of same-sex marriages from other states.
Judge Granade found that Baker v. Nelson (1972) did not operate as a binding precedent.
She also mentioned that the Eleventh Circuit had not yet ruled on the issue and in footnote 1 acknowledged that the United States Supreme Court had granted certiorari on the issue.
She found that marriage is a fundamental right:
“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” and women. Loving v. Virginia, 388 U.S. 1 (1967). Numerous cases have recognized marriage as a fundamental right, describing it as a right of liberty, Meyer v. Nebraska, 262 U.S. 390, 399, of privacy, Griswold v. Connecticut, 381 U.S. 479 (1965), and of association, M.L.B. v. S.L.J., 519 U.S. 102, 116, (1996). “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” Planned Parenthood of SE Pa. v. Casey, 505 U.S. 833, 851 (1992).
She articulated that laws that "implicate fundamental rights are subject to strict scrutiny and will survive constitutional analysis only if narrowly tailored to a compelling government interest." She considered Alabama's asserted interest of "protecting the ties between children and their biological parents and other biological kin," and concluded that the means chosen - excluding same-sex couples - was not narrowly tailored:
The Attorney General does not explain how allowing or recognizing same-sex marriage between two consenting adults will prevent heterosexual parents or other biological kin from caring for their biological children. He proffers no justification for why it is that the provisions in question single out same-sex couples and prohibit them, and them alone, from marrying in order to meet that goal. Alabama does not exclude from marriage any other couples who are either unwilling or unable to biologically procreate. There is no law prohibiting infertile couples, elderly couples, or couples who do not wish to procreate from marrying. Nor does the state prohibit recognition of marriages between such couples from other states. The Attorney General fails to demonstrate any rational, much less compelling, link between its prohibition and non-recognition of same-sex marriage and its goal of having more children raised in the biological family structure the state wishes to promote. There has been no evidence presented that these marriage laws have any effect on the choices of couples to have or raise children, whether they are same-sex couples or opposite-sex couples. In sum, the laws in question are an irrational way of promoting biological relationships in Alabama.
Judge Granade continued: "If anything, Alabama’s prohibition of same-sex marriage detracts from its goal of promoting optimal environments for children."
Judge Granade's opinion does briefly discuss the equal protection standard for reviewing sexual orientation classifications. But given her conclusion regarding fundamental right meriting strict scrutiny, the opinion does not contain an extensive or rigorous distinction between the Equal Protection Clause and Due Process Clause analysis.
Judge Grande's Order ruled on cross motions for summary judgment, enjoined the state from enforcing the same-sex bans, and did not contain a stay.
One would assume that the attorneys for Alabama are drafting their stay petitions.
UPDATE: On Sunday, January 25, 2015, Judge Granade issued her Stay Order granting a stay until February 9, 2015. The judge found that the State did not warrant a stay under the standards, but
In its discretion, however, the court recognizes the value of allowing the Eleventh Circuit an opportunity to determine whether a stay is appropriate. Accordingly, although no indefinite stay issues today, the court will allow the Attorney General time to present his arguments to the Eleventh Circuit so that the appeals court can decide whether to dissolve or continue the stay pending appeal (assuming there will be an appeal.) The preliminary injunction will be stayed for 14 days.
Friday, January 16, 2015
On Friday afternoon, the Court granted certiorari in the Sixth Circuit consolidated cases in DeBoer v. Snyder from the Sixth Circuit. [Recall that a divided Sixth Circuit panel reversed the district court decisions in Kentucky, Michigan, Ohio, and Tennessee].
Here's the Court's grant:
The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions: 1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The remainder of the Order sets out the briefing schedule and oral argument:
A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions. The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015. The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015. The reply briefs are to be filed on or before 2 p.m., Friday, April 17, 2015.
Monday, January 12, 2015
In her opinion in Rosenbrahn v. Daugaard, Judge Karen Schreier of the District of South Dakota found that the state's statute and constitutional amendment limiting marriage and quasi-marital recognition to "a man and a woman" was unconstitutional.
Judge Schreier's 28 page opinion is well-crafted, succinct yet comprehensive. It largely rests on marriage as a fundamental right under the due process clause:
Pertinent decisions from the Supreme Court are clear and consistent that the right to marriage is a fundamental right. The Supreme Court has also refused to describe the right to marriage by reference to the individuals wishing to exercise that right. In keeping with the decisions of most of the federal courts that have addressed this issue, this court agrees with plaintiffs that the question in this case is whether same-sex couples, like opposite-sex couples, may marry. Thus, the right at stake is not a new right to same-sex marriage, as defendants contend. Instead, the substantive due process right is the right to marry, which right is fundamental. South Dakota’s marriage laws significantly interfere with this fundamental right by preventing same-sex couples from marrying and refusing to recognize out-of-state same-sex marriages. Because strict scrutiny applies to analyze deprivations of fundamental rights claims, the court will apply strict scrutiny here.
In applying strict scrutiny, Judge Schreier rejected South Dakota’s justifications - - - channeling procreation into marriage and proceeding with caution - - - as compelling, noting that the state seemingly conceded the failure to rise to this level. As to the caution interest, the judge remarked that if "accepted as a compelling state interest, this justification would support every existing law." Moreover, the denial of same-sex marriage was not narrowly tailored to serve these interests.
In a very brief paragraph, Judge Schreier addressed the equal protection claim, essentially bootstrapping it to the due process claim: "For reasons stated with respect to plaintiffs’ due process claim, South Dakota’s same-sex marriage ban deprives same-sex citizens of a fundamental right, and that classification is not narrowly tailored to serve a compelling state interest. Thus, South Dakota’s same-sex marriage."
Judge Schreier did issue a stay, however, writing that although the ongoing denial of a constitutional right is an irreparable injury, the lack of an opinion by the Eighth Circuit means that the decision "presents novel and substantial legal questions" warranting a stay.
Yet the legal questions may be growing less and less novel, even if still subject to a circuit split and still awaiting United States Supreme Court review.
The Court heard oral arguments today in Reed v. Town of Gilbert regarding a First Amendment challenge to the town's extensive regulation regarding signage. The town generally requires a permit to erect a sign, with nineteen different exemptions including “Temporary Directional Signs Relating to Qualifying Event.” The exemption for these temporary directional signs further specifies that such signs "shall be no greater than 6 feet in height and 6 square feet in area,”and “shall only be displayed up to 12 hours before, during and 1 hour after the qualifying event ends.”
Although the challenge involves a church sign, this was largely irrelevant. Instead the content at issue is the sign’s directional nature, if indeed "directions" is a matter of content. In a divided opinion the Ninth Circuit upheld the town regulation as content neutral. Today's oral argument seemed inclined toward a contrary opinion.
In part, the problem seemed to be the city's protection of political speech over other types of speech. As Justice Scalia asked "is there no First Amendment right to give somebody directions?" This question seemed to undercut the categorical approach, for as Justice Kagan asked earlier in the argument to counsel for Reed,
Can I ask about the category for political signs, which is the most favorable? Because all the time this Court says that political speech is the most valued kind of speech. It's at the heart of the First Amendment. It gets special First Amendment protection. So in a way, why aren't isn't isn't the locality here basically adopting the same kind of category based understanding of political speech and its special rule and First Amendment analysis that this Court has very frequently articulated?
Importantly, the directional content is relevant only for temporary signs. This of course raises the question of what is a temporary sign and how can one discern that without looking at the sign’s content. At one point Chief Justice Roberts suggested that the distinction might be whether the sign is stuck in the ground with a little stake or whether it's in concrete, but quickly said that doesn't help the city's legitimate concerns. Yet the city's concerns over aesthetics and safety never seemed adequately connected to regulating directional signs more severely than election signs. Later, Justice Scalia asked whether there was a difference between the function of a sign and the content of the sign and whether function doesn't depend upon content.
Much of the doctrinal discussion was whether the standard of review should be strict scrutiny or intermediate scrutiny. The assistant to the Solicitor General argued that the correct standard with intermediate scrutiny under which the ordinance would be unconstitutional.
Interestingly Justice Ginsburg sought to distinguish intermediate scrutiny in the context of the First Amendment from the context of equal protection in which "intermediate scrutiny is a pretty tough standard." One can presume she was referencing her own opinion for the Court in United States v. Virginia, the VMI case.
As anticipated the justices posed several hypos. Probably the most trenchant of these was "Happy Birthday, Uncle Fred." Especially as compared to "Birthplace of James Madison" given that both signs could "be up for the same length of time, same size" as Justice Kennedy stated.
If today's argument is any indication - - - always a risky proposition - - - the regulations are likely to be declared unconstitutional. It may be that such an application will have what counsel for the town called an "opposite effect" : it "will limit speech because towns, cities will enact one size fits all" and governments "would be inclined to ban all signs except those that the First Amendment absolutely allows." Justice Alito, in reply, essentially shrugged: "You can make that argument in all kinds of contexts. I don't know where it gets you."
Saturday, January 10, 2015
The Ninth Circuit, over a dissent of three judges, has denied the petitions for en banc review of Latta v. Otter (and Sevick v. Sandoval) in which a panel held that the same-sex marriage bans in Idaho and Nevada respectively are unconstitutional.
Recall that the unanimous panel opinion authored by Judge Reinhardt held that the Idaho and Nevada laws regarding same-sex marriage "violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard" of SmithKline Beecham Corp. v. Abbott Labs.
The Ninth Circuit's panel opinion was rendered one day after the United States Supreme Court denied certiorari to the petitions in the Fourth, Seventh, and Tenth Circuit cases with similar holdings. However, since then, the Sixth Circuit rendered a divided panel decision in DeBoer v. Snyder reversing lower courts and upholding the same-sex marriage bans in in Kentucky, Michigan, Ohio, and Tennessee.
Judge O'Scannlain's dissent from the denial of en banc review - - - joined by Judges Rawlinson and Bea - - - relies in part on the Sixth Circuit's opinion in DeBoer v. Snyder and the circuit split it created. Like the Sixth Circuit, O'Scannlain argues that the operative precedent is Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question." And like the Sixth Circuit, the dissent distinguishes Windsor v. United States as limited to the federal government.
The major argument of the dissent, however, is that the question of same-sex marriage is not only one for the states, it is decidedly not one for the federal courts interpreting the constitution: "Nothing about the issue of same-sex marriage exempts it from the general principle that it is the right of the people to decide for themselves important issues of social policy."
This judicial restraint v. judicial activism debate is well-worn territory. And like other judges, O'Scannlain is not a consistent adherent to one side or the other: Recall his dissent from en banc review in Pickup v. Brown, in which the panel upheld a California statute banning sexual conversion therapy against a constitutional challenge. But O'Scannlain does interestingly write:
As Justice Kennedy wrote in Schuette, ‘‘It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds . . . . Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.”
Thus, O'Scannlain implicitly points to Kennedy's inconsistency regarding the desirability of resort to democratic processes and judicial restraint in the affirmative action case of Schuette as compared to his opinion in Romer v. Evans (on Colorado's Amendment 2), as well as Windsor and Lawrence v. Texas, and presumably Kennedy's opinion should the same-sex controversy reach the United States Supreme Court.
The Court itself is currently entertaining several petitions for certiorari on the same-sex marriage issue, including the Sixth Circuit opinion.
Meanwhile, the Fifth Circuit heard oral arguments (January 9) on appeals in Robicheaux v. Caldwell (in which a federal judge upheld Louisiana's same-sex marriage ban); DeLeon v. Perry (preliminary injunction against Texas' same-sex marriage ban as unconstitutional); and Campaign for Southern Equality v. Bryant, (preliminary injunction against Mississippi's same-sex marriage ban as unconstitutional). The oral arguments are available on the Fifth Circuit's website.
January 10, 2015 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Recent Cases, Sexual Orientation, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)