Tuesday, December 4, 2012
California's SB 1172, slated to become effective January 1 and prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18. Senior District Judge William Shubb, in an opinion issued late yesterday in Welch v. Brown, has issued a temporary injunction of the statute.
Considering the claims of two therapists and one potential therapist who had undergone SOCE as an adult, Judge Shubb first held that the plaintiffs did not have third party standing to assert the claims of minors or parents. As to the therapists, however, Judge Shubb held that their First Amendment claims were entitled to strict scrutiny which they were unlikely to survive on the merits.
In so doing, Judge Shubb rejected the argument that lesser standards under the First Amendment should apply given that the regulation was directed at a profession. Additionally, the judge rejected the argument that the regulation was directed at conduct rather than speech, holding that because "at least some forms" of SOCE involve "talk therapy," speech was the central issue.
Supporting the conclusion that strict scrutiny was the correct standard, Judge Shubb focused on the legislative history of SB1172: the "Legislature’s findings and declarations convey a consistent and unequivocal message that the Legislature found that SOCE is ineffective and harmful."
Below is a video of the legislative floor statement of the bill's sponsor, Senator Ted Lieu, and the subsequent vote:
For Judge Shubb, because "a mental health provider’s pursuit of SOCE is guided by the provider’s or patient’s views of homosexuality, it is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about homosexuality." Thus, Judge Shubb concluded that the statute was undoubtedly subject to strict scrutiny.
In addition to Ninth Circuit precedent, Judge Shubb relied heavily upon the Supreme Court's 2011 decision in Brown v. Entertainment Merchants Ass’n, finding unconstitutional California's violent video game sale to minors prohibition. Quoting from Entertainment Merchants, Judge Shubb stressed that SB1172 cannot survive strict scrutiny "unless the state demonstrates an “'actual problem’ in need of solving” and “a direct causal link” between SOCE and harm to minors. While protecting minors was a compelling state interest, Judge Shubb faulted the legislative findings:
evidence that SOCE “may” cause harm to minors based on questionable and scientifically incomplete studies that may not have included minors is unlikely to satisfy the demands of strict scrutiny.
Judge Shubb also faulted the "underinclusiveness" of the statutory scheme:
Here, SB 1172 prohibits only mental health providers from engaging in SOCE and, as defendants have pointed out, unlicensed individuals who do not qualify as “mental health providers” under the bill can engage in SOCE. If SOCE is harmful and ineffective, the harm minors will endure at the hands of unlicensed individuals performing SOCE is equal, if not greater,than the harm they would endure from mental health providers performing SOCE. In fact, the California Legislature has previously “recognized the actual and potential consumer harm that can result from the unlicensed, unqualified or incompetent practice of psychology.” [citation omitted] The limited scope of SB 1172 therefore suggests that it is likely underinclusive in its application only to mental health providers.
Given Judge Shubb's reasoning, it is likely that he will issue a permanent injunction and equally likely that the decision will be appealed to the Ninth Circuit.
Monday, December 3, 2012
Should the Court take certiorari in at least one of the circuit cases challenging DOMA, the Defense of Marriage Act, as is widely anticipated, the government interest will be at issue. Courtney Joslin's article, Marriage, Biology, and Federal Benefits, forthcoming in Iowa Law Review and available in draft on ssrn, is a must-read on the "responsible procreation" interest that is often proffered. Joslin (pictured) argues that this interest is based on what she calls the "biological primacy:" an "underlying premise that the government’s historic interest in marriage is to single out and specially support families with biologically-related children."
Joslin's task is decidely not to assess the "fit" of DOMA's means chosen to this interest, under any equal protection standard, whether it be intermediate scrutiny as some, including the Second Circuit in Windsor have applied, or rational basis as the First Circuit applied.
Instead, Joslin interrogates whether this interest is factually true: "Has the federal government historically accorded special solicitude and protection to families comprised of parents and their own biological children?" She demonstrates that the interest is, at the very least, not a consistent one. She examines the "history of federal family-based benefits in two areas: children’s Social Security benefits and family-based benefits for veterans and active members of U.S. military," and demonstrates that in a "vast array of federal benefits programs, eligibility is not conditioned on a child’s biological connection with his or her parent."
From the early years of federal family-based benefits, Congress both implicitly and explicitly extended benefits to children who were biologically unrelated to one or both of their parents. This unearthed history exposes that responsible procreation is based on normative judgments about sexual orientation and gender, not history and tradition.
Indeed, although Joslin does not discuss Loving v. Virginia, her article is deeply reminiscent of the Court's reasoning in Loving when it essentially rejected Virginia's proffered rationale of "racial integrity," with Chief Justice Warren writing that the "fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy." Joslin's article should be required reading for anyone analyzing DOMA.
Friday, November 30, 2012
In an 41 page opinion and order in Sevick v. Sandoval, United States District Judge Robert Jones has rejected an equal protection challenge to Nevada's statutory scheme disallowing same-sex marriage.
The judge relied upon Baker v. Nelson, 409 U.S. 810 (1972), in which the United States Supreme Court summarily dismissed an equal protection challenge to the Minnesota statutory marital scheme's exclusion of same-sex couples. While stating that the "present challenge is in the main a garden-variety equal protection challenge precluded by Baker," the judge was undoubtedly aware of Baker's problematic status (a case to be relegated to the dustbin of precedent, perhaps), and provided a full analysis, "so that the Court of Appeals need not remand for further proceedings should it rule that Baker does not control or does not control as broadly as the Court finds."
The judge's well-structured analysis begins with a discussion of the classification, considering the notion that the Nevada scheme makes no classification at all, as well as the notion that the scheme makes a gender classification, but settling for the widely accepted principle that the scheme makes a sexual orientation classification.
In determining the level of scrutiny to be applied, Judge Jones decides in favor of rational basis, noting his disagreement with the Second Circuit in Windsor involving DOMA. Supporting this conclusion, Judge Jones highlights the factor of political powerlessless and its relationship with the judicial role in a democracy. For example, Jones writes that "Any minority group can reasonably argue that its political power is less than it might be were the group either not a minority or more popular. That is simply an inherent aspect of democracy." Additionally, "Gross movements by the judiciary with respect to democratic processes can cause an awkward unbalancing of powers in a Madisonian constitutional democracy."
Moreover, Judge Jones rejects the heightened rational basis of Romer v. Evans and the Ninth Circuit precedent of Perry v. Brown, involving California's Proposition 8, because there is no animus in the Nevada scheme:
Because there has never been a right to same-sex marriage in Nevada, Romer and Perry are inapplicable here as to NRS section 122.020. That section of the NRS removed no preexisting right and effected no change whatsoever to the legal status of homosexuals when adopted by the Nevada Territorial Legislature in 1861. See Nev. Comp. Laws § 196 § 2, at 65 (1861–1873).
On this lowest standard of rational basis, the challenger must negate every conceivable basis - - - an exceedingly, if not impossible task, and Judge Jones not surprisingly finds that the challengers fail to meet their heavy burden. The "protection of the traditional basis for marriage," is a legitimate one for Judge Jones, and the exclusion of same-sex couples is rationally related to that interest. This is true even though Nevada has provided for a domestic partnership scheme for same-sex couples.
As the United States Supreme Court considers whether or not to decide the issue of same-sex marriage, either in the Proposition 8 posture of Perry v. Brown or one of the DOMA postures such as the Second Circuit case or First Circuit case - - - all of which invalidated bans on same-sex marriage - - - Judge Jones' opinion demonstrates that the constitutional issue of same-sex marriage remains a contested one, even in a state with otherwise permissive marital regulations.
[image "Little white chapel" in Las Vegas, Nevada, via]
As the news is filled with the expected decision from the United States Supreme Court on whether - - - and if so, in what constellation - - - to grant certiorari on the issue of same-sex marriage, including both Proposition 8 and DOMA, Lyle Denniston's excellent discussions at SCOTUSBlog are a welcome resource.
But equally vital is Tobias Barrington Wolff's recent brief remarks, to be as an essay in Fordham Law Review entitled Collegiality and Individuality Dignity, and available on ssrn, that discusses the more personal aspects of the issues for some ConLawProfs.
Wolff (pictured) explores the "deep tension that exists for LGBT scholars and lawyers who work" on issues of same-sex marriage and other sexuality issues, "between principles of collegiality and basic principles of individual and human dignity." For example, "there is this seeming willingness on the part of antigay advocates to go around calling LGBT people unfit parents, and to expect to be treated with courtesy in response. I’ve been doing this for a dozen years, and I have to tell you, in very personal terms: I’m getting a little tired of being courteous in response to this kind of argument."
I’ll just say quickly: One can refuse to engage with these arguments and the people who make them, which is a choice that some LGBT scholars make and is a choice that has obvious costs associated with it. One can continue engaging in a collegial fashion, which is the choice that I have made for most of my career, but carries serious individual costs. Or one can engage with a somewhat sharper- edged critique of the nature of the arguments that are being made, which is part of what, of course, I am doing today, which has its own set of costs and disruptions of the normal collegial atmosphere about it. I acknowledge that.
But I think that the impact upon the individual dignity of LGBT scholars from having to confront these ugly, ugly arguments over and over again is something that needs to be acknowledged as one of the central, central dynamics that warrants attention in conversations about these issues.
Wolff's worth-reading essay is situated in the context of scholarly discourse, but many ConLawProfs experience similar dynamics in the classroom. How do we discuss these arguments and issues without assaulting each other's dignity?
Thursday, October 25, 2012
In what should be the final opinion in the extended saga of the quest for anonymity by "Protect Marriage" members and supporters, the Ninth Circuit declared the case moot.Recall that in Doe v. Reed, decided by the United States Supreme Court in June 2010, the Court rejected a facial challenge to the state of Washington's Public Records Act (PRA), RCW 42.56 that governs the disclosure of public records including petitions seeking a ballot initiatives. The ballot initiative at issue sought to repeal the "everything but marriage" law for same-sex couples and was spear-headed by the controversial Protect Marriage organization. The John Doe plaintiffs challenged the public disclosure of their names as a violation of the First Amendment.
Subsequently, on remand from the United States Supreme Court, the district court's opinion ordered disclosure of the names of those who signed an anti-same-sex marriage petition in Washington state in accordance with the state's usual processes. The Ninth Circuit denied the request for an emergency stay last year.
Now, the Ninth Circuit panel unanimously finds the case moot. The panel discussed an exception to the mootness doctrine under a two-prong test: “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” The panel quickly found that prong one was not satisfied and therefore did not reach the second issue.
Concurring, Judge N.R. Smith disagreed on the mootness question, essentially holding that the matter was not moot because the court could attempt to at least narrow the dissemnination of the information. However, Judge Smith's conclusion on the merits was interwoven with the mootness arguments. He reasoned that Protect Marriage's "arguments regarding the merits of the burden on their First Amendment rights is incongruent with the mootness argument, because it discusses a burden caused by the government action of disclosing identities at all. Plaintiffs cannot have it both ways."
While Protect Marriage may file a petition for writ of certiorari, it seems highly unlikely Doe v. reed will be returning to the Supreme Court again.
Thursday, October 18, 2012
In a divided opinion issued today, the Second Circuit in Windsor v. United States, affirmed the district judge's conclusion that the defense of Marriage Act (DOMA) section 3 is unconstitutional. Recall that the United States position is being defended by BLAG, Bipartisan Leadership Advisory Group, reportedly at a cost to taxpayers of 1.5 million dollars.
Second Circuit Chief Judge Dennis Jacobs wrote the majority opinion that Judge Droney joined. The panel held that Windsor had standing, that the suit was not foreclosed by the Court's 1971 summary dismissal in Baker v. Nelson, that DOMA was subject to intermediate scrutiny and that DOMA failed intermediate scrutiny, as well as that there was no need to certify any questions to New York's highest court.
The Second Circuit rejected the district judge's finding that the appropriate level of scrutiny was rational basis, holding that intermediate scrutiny is correct under the basic Carolene Products factors as articulated in Cleburne. The panel stated:
In this case, all four factors justify heightened scrutiny:
A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.
The panel then applied the classic articulation of intermediate scrutiny, requiring that the "classification must be substantially related to an important government interest." The panel analyzed BLAG's stated interests - - -the “unique federal interests ” (which include maintaining a consistent federal definition of marriage, protecting the fisc, and avoiding “the unknown consequences of a novel redefinition of a foundational social institution”) and the encouragement of “responsible procreation” - - - noting that at oral argument "BLAG’s counsel all but conceded that these reasons for enacting DOMA may not withstand intermediate scrutiny." The panel, however, does evaluate the interests, concluding they are not being substantially served by DOMA.
Dissenting Judge Straub, in a lengthy opinion, contends that DOMA merits only rational basis scrutiny and that it satisfies this low standard.
October 18, 2012 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Fifth Amendment, Gender, News, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 16, 2012
As the United States Supreme Court continues to hold in abeyance its decision on whether to grant certiorari in the cases challenging the constitutionality of prohibitions on same-sex marriage in Proposition 8 or DOMA, and many mark the 158th birthday of Oscar Wilde (pictured), Professor Laura Appleman's 2011 article Oscar Wilde's Long Tail: Framing Sexual Identity in the Law, available here, is worth a read.
Appleman argues that Wilde's 1895 trials for sodomy and the 2010 Proposition 8 trial both functioned as a legal stage for "enacting social-cultural anxiety over sexuality." But beyond comparisons, Appleman argues that the Wilde trials constructed certain narratives about sexuality that the Court has been unwilling to confront in its sexuality decisions, including in Romer v. Evans and Lawrence v. Texas. The same-sex marriage decisions by state courts likewise participate in these narrative constructs. Although, as her article states in its last sentence, how the courts continue down these paths is "a story yet untold."
[image of Oscar Wilde, circa 1882 via]
Thursday, September 20, 2012
From the SCOTUSBlog same-sex marriage symposium, discussing how the Supreme Court should rule if the Court accepts Perry (the Proposition 8 case) or any of the DOMA cases, including Massachusetts v. United States Department of HHS and Gill v. Office of Personnel Management:
The suggestions of clearly articulated standards and rigorous analysis are not simply the fantasies of a law professor. While Supreme Court opinions need not be constitutional law examination answers, neither should they be confusing, or marred by sarcasm or sentimentality. Students studying law should be exposed to more Supreme Court opinions demonstrating trenchant analysis rather than rhetorical politics.
Clearly articulated standards might also allow the lower federal courts as well as the state courts to engage in their own rigorous analysis rather than attempt to discern the correct standard from Supreme Court precedents that are unclear, internally inconsistent, or point in several directions. This is not to say that the same-sex marriage issue should have been easily resolved by lower courts or that the applications of the standard are not difficult and value-laden. However, the grappling of the lower courts for several years now regarding the actual holding of Romer v. Evans, as well as Loving v. Virginia, could have been avoided.
The full post is here.
Tuesday, September 18, 2012
With a focus on civil servants (or their equivalents) who act as marriage officers and who object to participating in the legal institutionalization of same-sex unions, co-authors Bruce MacDougall (University of British Columbia, Canada); Elsje Bonthuys (University of the Witwatersrand, South Africa); Kenneth Norrie (University of Strathclyde, Glasgow, Scotland), and Marjolein Van den Brink (University of Utrecht, the Netherlands) have produced an important comparative discussion centering on Canada, Scotland, South Africa, and the Netherlands, in their article "Conscientious Objection to Creating Same-Sex Unions: An International Analysis." It's published in the Canadian Journal of Human Rights, and available on ssrn.
Their explorations of the specifics of jurisdictions are excellent, but it is the final sections of the article that make the most vital contribution. By discussing the conflict of constitutional values in more generalized terms - - - not burdened by specific doctrinal developments and histories - - - the authors ask whether it is possible to satisfy both the equality and conscience concerns.
It's a question without an easy answer, but this article frames the issues and provides several perspectives. This would be a terrific article for a First Amendment class considering these issues.
[image: "The Interrupted Wedding" by Edmund Bristow circa 1860 via]
Friday, August 17, 2012
A little less than two years ago, then-assistant state attorney Andrew Shirvell made news for his blog "Chris Armstrong Watch," entirely devoted to Chris Armstrong, the student body president of University of Michigan. There was also some reportedly obsessive behavoir, such as showing up "at Armstrong's home three separate times, including once at 1:30 a.m," according to the state attorney general's investigation, which led to the termination of Shirvell.
Chris Armstrong sued Shirvell, as the video below discusses:
As the Detroit Free Press reports, a jury has awarded Armstrong 4.5 million dollars in damages.
While we previously suggested to ConLawProfs that Shirvell's termination from his assistant attorney general position would make a great class problem on the limits of Garcetti v. Ceballos , the jury verdict presents opportunities to explore First Amendment defenses to tortious behavior, including defamation, intentional infliction of emotional distress, and stalking.
[h/t Art Leonard]
Sunday, August 12, 2012
In in an opinion exceeding 100 pages, Judge Alan Kay, Senior District Judge for the District of Hawai'i, upheld the Hawai'i marriage scheme in Jackson v. Abercrombie. The plaintiffs had argued that Hawai'i Constitution Article 1, Section 23 stating that “[t]he legislature shall have the power to reserve marriage to opposite- sex couples,” and Hawaii Revised Statutes § 572-1, which states that marriage “shall be only between a man and a woman,” violated the Due Process and Equal Protection Clauses of the United States Constitution. Governor Abercrombie's Answer agreed with the plaintiffs' constitutional arguments. However, Defendant Fuddy, Hawai'i Director of Health, and Intervenor Hawai'i Family Forum, opposed the plaintiffs, and the Judge resolved the case on Summary Judgment.
Those conversant with same-sex marriage jurisprudence in the United States will recall that Hawai'i is a landmark in the second-generation litigation: In Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), the Hawai'i Supreme Court found the limitation of marriage to opposite-sex couples violated the state constitution. This decision prompted the state constitutional amendment, Article I, Section 3, referenced above (and interestingly in terms of judicial review, not prohibiting same-sex marriage but allocating that power only to the legislature and not to the courts). It also prompted Congress to pass DOMA - - - the Defense of Marriage Act - - - constitutionally suspect at present.
Judge Kay rehearses these histories at length. However, he rests his rejection of the plaintiffs' constitutional challenges on a "decision" of the first-generation of same-sex marriage litigation: The United States Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972) (mem.). For Judge Kay: "Baker is the last word from the Supreme Court regarding the constitutionality of a state law limiting marriage to opposite-sex couples and thus remains binding on this Court." (Opinion at 46).
Most courts considering the issue have rejected the 1972 summary dismissal in Baker v. Nelson as binding precedent. Thus, Judge Kay also provides an "alternative analysis" under the Equal Protection and Due Process Clauses. He applies rational basis review, concluding that "marriage" can be reserved to opposite-sex couples because the legislature can rationally choose to encourage the stability of relationships that have the ability to "procreate naturally" and choose to promote the raising of children by "a mother and a father." Judge Kay also credits the legislature's rational choice to "proceed with caution" in an area of social change:
Hawaii could rationally conclude that by enacting the reciprocal beneficiaries act, followed years later by the civil unions law, and retaining the definition of marriage as a union between a man and woman, it is addressing a highly-debated social issue cautiously. By doing so, it may observe the effect of the reciprocal beneficiaries and civil unions laws before deciding whether or not to extend the title marriage, along with the already conferred legal rights, to same-sex couples.
Yet Judge Kay's ultimate rejection goes further. He writes that "to suddenly constitutionalize the issue of same-sex marriage “would short-circuit” the legislative actions that have been taking place in Hawaii." (Opinion at 118). Certainly, the judicial restraint arguments are familiar by now, but to write in 2012 that the plaintiffs seek to "suddenly constitutionalize the issue of same-sex marriage" is odd. Indeed, it is undermined by Judge Kay's own opinion with its careful history of second-generation litigation since 1990 and his reliance on a summary dismissal in 1972.
The plaintiffs are doubtless preparing their appeal to the Ninth Circuit.
August 12, 2012 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Gender, Opinion Analysis, Reproductive Rights, Sexual Orientation, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)
Tuesday, July 31, 2012
In what is becoming a common occurence, a federal judge held section 3 of DOMA unconstitutional.
Today's opinion in Pedersen v. Office of Personnel Management, with BLAG (Bipartisan Legal Advisory Group of the House of Representatives) intervening to defend the law, is by Judge Vanessa Bryant of the United States District Court for the District of Connecticut.
Judge Bryant's thorough opinion, over 100 pages, treads by now familiar ground. Judge Bryant first rehearses the history ofthe Defense of Marriage Act (DOMA), standing, and the (in)applicability of the Supreme Court's summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972).
In applying Equal Protection doctrine to a classification based upon sexual orientation, the first task is to determine the level of scrutiny to be applied to sexual minorities. As Professor Julie Nice writes over at Jurist, this can put a court in a "dither" given the Supreme Court's "miminalism" on this issue.
But Judge Bryant attempted to be clear, both in her theoretical perspectives and doctrine. She first stated she "must not be tempted to tie conceptions of judicial restraint to historic notions of equality," but instead engage in a "rigorous examination of the fundamental meaning of the noble ideals established by our founding fathers as our guiding and enduring principles." (Opinion at 34-35). She then extensively applies the four common factors to determine whether a particular classification should be considered either a suspect or quasi-suspect class:
- (1) the history of invidious discrimination against the class burdened by the legislation;
- (2) whether the characteristics that distinguish the class indicate a typical class member's ability to contribute to society;
- (3) whether the distinguishing characteristics are ‘immutable’ or beyond the class members' control; and
- (4) the political power of the subject class.
Judge Bryant's opinion is especially worth reading on the "political powerlessness" prong in light of arguments regarding President Obama's opinions on sexual orientation. Having considered all four factors, the judge found that " homosexuals display all the traditional indicia of suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny." She then quickly defaulted to another rationale: "However, the Court need not apply a form of heightened scrutiny in the instant case to conclude that DOMA violates the promise of the equal protection as it is clear that DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny."
Thus, Judge Bryant applied rational basis scrutiny requiring a "legitimate interest" that is reasonably served by the statute. The legislative history of DOMA advanced four interests for the statute: "(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce governmental resources." In litigation, BLAG asserted five: 1) To employ caution in the face of a proposed redefinition of the centuries-old definition of marriage; 2) To protect the public fisc; 3) To maintain consistency and uniformity with regard to eligibility for federal benefits; 4) To avoid creating a social understanding of bearing, begetting, and rearing children separate from marriage; and 5) To recognize an institution designed to ensure that children have parents of both sexes. One by one, Judge Bryant considered the interests and their rational relationship to the statute, concluded that not one of them was sufficient.
Judge Bryant considers judicial review and the role of courts in a democracy at several points, and concludes:
"In sum, having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no conceivable rational basis exists for the provision. The provision therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution."
Certainly this opinion will be appealed, as have the others, including three pending petitions in the United States Supreme Court. But with yet another federal judge finding DOMA unconstitutional, it would make a Supreme Court decision to the contrary look more and more problematical.
Saturday, July 28, 2012
As the 2012 Olympics get under way in London, participants, attendees and viewers may think they are watching a modern re-enactment of the Greek classical practice also known as the Olympics. The United States Supreme Court, in its majority opinion by Justice Powell in the 1987 case of San Francisco Arts and Athletics v. U.S. Olympic Committee, pointed out the differences:
The ancient Olympic Games lasted 5 days, whereas the modern Olympics last for 10 days. The ancient Games always took place in Olympia in southern Greece; the modern Olympic Games normally move from city to city every four years. (As an effort to reduce nationalism, cities, as opposed to countries, host the modern Olympic Games.) In ancient Greece there may have been a burning fire for religious sacrifice, since the Olympic Games were part of a religious festival. The torch relay, however, was an innovation of the modern Olympic Committee. The closest parallel to the modern opening parade was the opening of the ancient Games with the chariot race. As the chariots entered the arena and passed the judges, a herald called out the names of the owner, his father, and his city. There was no general parade of athletes by locality, as in the modern Games, and the athletes were naked, not uniformed. Athletes were eligible only if they were male, freeborn Greeks. There is no indication that the ancient Olympics included an “Olympic anthem” or were organized by an entity called an “Olympic Committee.” The awards in ancient Greece were wreaths of wild olive, rather than the gold, silver, and bronze medals presented at the modern Olympics.
Olympics, 483 U.S. at 541 n.18.
The purpose of these distinctions was to support the claim that "Olympics" was not an ancient and now generic term that could be adopted by others, but a specific term owned by the United States Olympic Committee, established by Congressional statute in 1896. The Committee had brought suit against the "Gay Olympics" for using the term. Interestingly, according to the Gay Olympics Brief, the US Olympic Committee did not seek to similarly prohibit other groups that used the term "Olympics" such as the International Police Olympics; Armenian Olympics; Olympic of Ballet; Olympics of the Mind; Senior Olympics; Golden Olympics; Firemen's Olympics; United States Skill Olympics; Virginia Golden Olympics; Wrist-Wrestling Olympics; Crab-Cooking Olympics; Dog Olympics; Nude Olympics; Rat Olympics; WackyOlympics; Xerox Olympics; Alcoholic Olympics.
The Court thus rejected the Gay Olympics First Amendment argument, with Justices O'Connor dissenting in part, and Brennan and Marshall dissenting.
I discuss the case and the use of the term "Olympics" as well as other ancient Greek terms such as "democracy," in an article available on sssrn.
[image: Olympic Rings hanging from London Bridge, 2012, via]
Wednesday, June 6, 2012
Yet another opinion has held section 3 of DOMA, the Defense of Marriage Act, unconstitutional.
Coming on the heels of the First Circuit's opinion issued last week, today's opinion by federal district judge for the Southern District of New York, Barbara Jones, in Windsor v. US reached the same conclusion that section 3 of DOMA does not pass rational basis. In November 2010, Edith Windsor filed a complaint in the Southern District of New York as the survivor of a same-sex couple married in Canada. Windsor sought a refund of estate taxes paid because the marriage was not recognized by the federal government and argued that the Defense of Marriage Act, DOMA, section 3 is an unconstitutional denial of equal protection. The New York Attorney General filed an amicus brief in support of Windsor.
Judge Jones' opinion rehearses grounds that are becoming quite familiar, and while she cites and quotes the First Circuit's opinion in Massachusetts v. HHS, she does not substantially rely upon it.
Instead, Judge Jones does not stress the heightened rational basis standard for legislation based on animus, but concluded that the Congressional interests support DOMA did not pass the threshold of being "legitimate." Judge Jones specifically considered the additional interest advanced by BLAG (supporting DOMA) that Congress intended to approach "same-sex marriage with caution." Judge Jones did not quite say that this was not a legitimate interest, but did conclude that "whatever the social consequences of this legal development" that is same-sex marriage "ultmately may be, DOMA has not, and cannot, forestall them."
Of particular interest to New York constitutional scholars, Judge Jones confronts Hernandez v. Robles, the 2006 decision by New York's highest court that rejected a constitutional claim against barring same-sex marriage. Yet this is in the context of Windsor's standing to raise the claim as to the 2009 tax year. As Jones notes, subsequent executive and legislative action in New York has disavowed that stance in 2009, rendering BLAG's reliance on the case to show a lack of injury "unpersuasive."
DOMA, it can certainly be said, has had its constitutionality seriously cast into doubt, yet again.
Tuesday, June 5, 2012
The Ninth Circuit en banc has refused to hear the the Ninth Circuit's 2-1 panel opinion affirming the district judge's conclusion that the controversial Proposition 8 is unconstitutional.
Filed Order for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) (Dissent by Judge O'Scannlain, Concurrence by Judge Reinhardt)
A majority of the panel has voted to deny the petition for rehearing en banc. Judge N.R. Smith would grant the petition. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc.
The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED.
The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.
A sharp but brief dissent by O’Scannlain, joined by Judges Bybee and Bea, highlights President Obama's recent remarks about same-sex marriage:
A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same- sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”
Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia, Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012). Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.
For many of the same reasons discussed in Judge N.R. Smith’s excellent dissenting opinion in this momentous case, I respectfully dissent from the failure to grant the petition for rehearing en banc.
We are puzzled by our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion. We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.
Thursday, May 31, 2012
In today's unanimous panel opinion in Massachusetts v. HHS, consolidated with Gill v. Office of Personnel Management, the First Circuit upheld federal District Judge Tauro's companion opinions that section 3 of DOMA is unconstitutional. (April's oral argument can be heard here).
The First Circuit opined that the issue is difficult not only because of what it called the Justice Department's "about face" but because it
couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings. In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation. We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.
The panel relied upon Moreno, Cleburne, and Romer v. Evans, each of which "rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered," to ultimately employ a heightened rational basis of equal protection review.
As to federalism, the panel noted that "DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation--domestic relations and the definition and incidents of lawful marriage--which is a leading instance of the states' exercise of their broad police-power authority over morality and culture." Although certainly the federal government does have an interest in marriage (given how many federal laws rely on the definition), nevertheless "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."
The First Circuit thus stops short of finding that DOMA is inconsistent with the Tenth Amendment, but deploys federalism to evaluate the government interests under equal protection.
The four interests expressed in the House Committee Report were
- (1) defending and nurturing the institution of traditional, heterosexual marriage;
- (2) defending traditional notions of morality;
- (3) protecting state sovereignty and democratic self-governance; and
- (4) preserving scarce government resources.
The First Circuit rejected all these interests as inadequate, including the preservation of government resources that it found to be factually dubious, and also rejected the "child rearing" and "temporary measure" rationales advanced in litigation, as not supported by the legislation.
Thus, the panel concluded:
the rationales offered do not provide adequate support for section 3 of DOMA. Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. 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.
Surely BLAG - - - the Bipartisan Legal Advisory Group of the United States House of Representatives, an organization defending DOMA funded by taxpayers - - - will petition for certiorari to the United States Supreme Court, although perhaps first for en banc review.
Saturday, May 12, 2012
Saturday Evening Review: Julie Nice on the "Responsible Procreation" Argument in Same-Sex Marriage Constitutional Litigation
With President Obama making news this week proclaiming his personal support for same-sex marriage, after an extensive "evolution," it's a good time to take a look at scholarship on the constitutional arguments.
Obama specifically mentioned same-sex couples "raising kids together." But one of the more odd - - - at least on first review - - - arguments in support of state marriage being limited to opposite sex couples is that this is acceptable, but that opposite sex couples need more "encouragement" to marry. This is the so-called "responsible procreation" state interest. Perhaps it reached its most interesting articulation in the pronouncement of New York's highest court, an opinion subject to a skewering analysis - - - and fun read - - - in John Mitchell's Chatting with the Lady in the Grocery Store about Hernandez V. Robles, the New York Same-Sex Marriage Case, available on ssrn.
ConLawProf Julie Nice (pictured below) has now elaborated this odd notion in The Descent of Responsible Procreation: A Genealogy of an Ideology, forthcoming in Loyola Los Angeles Law Review, draft available on ssrn. With her usual scholarly integrity matched by innovative analysis, Nice "traces the genealogy of responsible procreation."
She notes that same sex constitutional litigation has changed remarkably during the past several decades, with the amount of such litigation increasing substantially. With state justifications eroding, especially since blatant discrimination has become more disfavored, defenders of state bans on same-sex marriage have primarily leaned on the responsible-procreation defense, which surmises that same-sex couples already procreate responsibly and that the rights and responsibilities of marriage should be limited to furthering the goal of encouraging more responsible procreation by heterosexuals.
Nice explains that the justification is rooted in religion. It appeared as a justification of the federal Defense of Marriage Act. State courts split on its constitutionality: the high court of Massachusetts found it to be “unpersuasive” while the New York court used it as a justification for a rejection of constitutional challenge to same-sex-marriage bans.
While the saga of Perry v. Brown is far from over, Nice predicts that the "responsible procreation" state interest is "on the wane." She ultimately argues the emerging trend is that both executive officials and courts are rejecting the "responsible procreation" rationale and concluding that the same-sex-marriage ban is drawn, not to further a proper legislative end but to make same-sex couples and their children unequal to everyone else. She contents that even conservative commentators defending the same-sex-marriage ban openly concede that it is drawn to disadvantage same-sex couples and to favor opposite-sex couples.
Thus, she concludes regardless of which level of scrutiny is applied, contemporary constitutional jurisprudence is quite clear that such an invidious ideology is not a legitimate basis for law.
An article worth reading that not only puts the same-sex marriage constitutional issues into perspective but also provides an excellent primer on equal protection and constitutional litigation.
May 12, 2012 in Equal Protection, Establishment Clause, Family, Federalism, Fourteenth Amendment, Religion, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)
Thursday, May 3, 2012
South Africa's Bill of Rights, Section 9, subsection 3 provides:
The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
This Constitution, effective in 1997, is the post-Apartheid Constitution. As the government itself boasts, "South Africa’s Constitution is one of the most progressive in the world and enjoys high acclaim internationally." The progressive reputation of the South Africa Constitution is well-deserved, and it is based in part as being the first Constitution to explicitly recognize equality on the basis of sexual orientation.
Interpreting this provision, the highly respected South Africa Constitutional Court has declared sodomy laws unconstitutional, has declared the limitation of marriage to opposite-sex couples as unconstitutional, and recognized family rights for same-sex couple parents.
But the inclusion of sexual orientation has re-emerged as a controversial issue. As ConLawProf Pierre deVos at the University of Cape Town reports on Constitutionally Speaking, the House of Traditional Leaders submitted a proposal to the Constitutional Review Committee of the National Assembly to amend section 9 of the Constitution to remove sexual orientation provisions and the Review Committee has referred the matter to the political parties. As deVos explains it:
This means that the various Parliamentary caucuses of political parties represented in Parliament will soon have to decide whether they support unfair discrimination against people they might believe are not like them, or whether they will affirm their commitment to non-discrimination and the respect for the human dignity of all South Africans, the very bedrock on which the Bill of Rights in the South African Constitution is founded. . . .
DeVos' analysis is worth reading in full.
Coupled with recent controversies surrounding the composition of the South Africa Constitutional Court, this is alarming news indeed, and threatens South Africa's status as a constitutional democracy that is "one of the most progressive in the world."
[image: Rainbow Map South Africa via]
Wednesday, April 4, 2012
On appeal from two opinions from Federal District Judge Tauro holding Section 3 of DOMA unconstitutional, the First Circuit heard arguments today in Commonwealth of Massachusetts v. United States Department of Health and Human Services, and Gill v. Office of Personnel Management.
A partial audio recording of the argument is available here (the first 18 minutes is missing).
Arguing to reverse Judge Tauro's opinions and defending DOMA was BLAG - the Bipartisan Legal Advisory Group of the House of Representatives - who took up the case when the Obama DOJ decided that DOMA section 3 violates the equal protection component of the due process clause of the Fifth Amendment.
The equal protection arguments are central, including the level of scrutiny that should apply to the category of "sexual orientation," what government interests should be considered (the ones at the time of passage or the ones offered in the present litigation), and the possibility of animus, especially given the name of the act.
In addition to equal protection, the Tenth Amendment also figured prominently in the arguments. This has caused at least one commentator to note that Paul Clement's argument on behalf of BLAG was exactly the opposite of his argument last week that the Affordable Care Act is unconstitutional. Moreover, while DOMA and the anti-immigration initiative, SB1070, in Arizona v. US are certainly reconciliable with regard to the federalism issue, Clement's argument on behalf of Arizona before the United States Supreme Court later this month will most certainly contradict his DOMA stance.
Meanwhile, Immigration Equality has filed a complaint in the Eastern District of New York arguing that DOMA section 3 is unconstitutional on the basis of equal protection regarding both sexual orientation and sex, and should not be enforced in the immigration context.
As for the DOMA argument in the First Circuit, there is a suggestion that the case should go to the en banc court. However, for now the case is before Judges Lynch, Torruella, and Boudin, pending a panel decision.
Thursday, February 23, 2012
This time, the opinion comes from federal District Judge Jeffrey White in Golinski v. United States Office of Personnel Management. Golinski is a staff attorney with the Ninth Circuit and in 2009 Chief Judge Kozinski ordered that Golinski's health benefits form listing her same-sex partner as wife be submitted by federal personnel authorities. The DOJ since decided not to defend the constitutionality of DOMA and such actions are being defended by BLAG - - - the Bipartisan Legal Advisory Group of the United States House of
Golinski, a federal employee and described by the court as "a lesbian woman married under California law, who is unable to secure federal health benefits for her same-sex spouse," challenged Section 3 of DOMA as a violation of equal protection and due process under the Due Process Clause of the Fifth Amendment. Under equal protection doctrine, the court looked at the "various factors" to determine the level of scrutiny the sexual orientation classification merited:
- the history of invidious discrimination against the class burdened by the legislation;
- whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society;
- whether the distinguishing characteristics are “immutable” or beyond the class members’ control;
- the political power of the subject class
After finding that there was no definitive precedent regarding the level of scrutiny that should apply, and applying the factors, the judge specifically held "that gay men and lesbians are a group deserving of heightened protection against the prejudices and power of an often-antagonistic majority."
In applying the heightened scrutiny standard, the judge considered the animus expressed by certain members of Congress in DOMA's legislative history, the judge then analyzed the government's stated interests: responsible procreation and child-rearing; nurturing the institution of traditional, opposite-sex marriage; defending traditional notions of morality; and preserving scarce government resources. For each interest, the judge concluded that that it did not "provide a justification that is substantially related to an important governmental objective."
The opinion then engaged in an "alternative analysis" under rational basis review - - - and also applied this to the BLAG's proffered additional hypothetical rational bases for passing DOMA:
- Congressional caution in defining a legislative term and maintaining the status quo
- Congressional caution in area of social divisiveness
- Any other possible basis
With many references to Judge Tauro's 2010 opinions holding DOMA unconstitutional, Judge White similarly decided that these post-DOMA rationales do not satisfy rational basis.
Judge White's conclusion considers the broader issues, including separation of powers and judicial review, in context:
The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:
Prejudice, we are beginning to understand, rises not from malice or hostile
animus alone. It may result as well from insensitivity caused by simple want of
careful, rational reflection or from some instinctive mechanism to guard against
people who appear to be different in some respects from ourselves.
Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy,
This case was presented by an employee of the judicial branch against the executive
branch, which ultimately determined it could not legitimately support the law. The law was
then defended by the legislative branch. The judicial branch is tasked with determining whether this federal law is unconstitutional. That is the courts’ authority and responsibility. “It is emphatically the province and duty of the judicial department to say what the law is” and,where it is so, to declare legislation unconstitutional. See Marbury v. Madison, 1 Cranch 137, 177 (1803). As Supreme Court Chief Justice John G. Roberts said during his confirmation hearings: “Judges are like umpires. Umpires don’t make the rules, they apply them. ... it’s [the judge’s] job to call balls and strikes, and not to pitch or bat.” Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of John G. Roberts, Jr.,
In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right
to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse.
Apart from the substance, Judge White's opinion is a model of organizational clarity. For ConLawProfs looking for excellent opinions that demonstrate the organizational structure of equal protection doctrine, including alternative arguments, this is an opinion worth considering.
February 23, 2012 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fifth Amendment, Gender, Opinion Analysis, Separation of Powers, Sexual Orientation, Teaching Tips | Permalink | Comments (0) | TrackBack (0)