Sunday, July 24, 2011
Justice Ginsburg's talk on the Court, presented at the Otsego County Bar Association of New York, July 22, 2011, is worth reading. Here is an edited version of the written transcript. The transcript includes footnotes and citations (omitted below), including to the oral argument statements and cases.
The edited version continues after the jump, with Ginsburg discussing constitutional law cases such as Snyder v. Phelps, Arizona Christian School Tuition Organization v. Winn, Chamber of Commerce v. Whiting, and Arizona Free Enterprise Club v. Bennett. Ginsburg "explains" the fact that three of these cases are from Arizona, and makes her most provocative statement on the Court's term regarding Arizona Free Enterprise Club v. Bennett. She also mentions the reality of three women Justices on the Court.
I will present some comments on the Supreme Court Term just ended, the 2010-2011 Term. Early in the Term, the Justices sat for a new photograph, as they do every Term the Court'scomposition changes. Elena Kagan, former Solicitor General, and before that, Dean of the Harvard Law School, came on board last summer, and has just completed her first year as a member of the Court. She has already shown her talent as an incisive questioner at oral argument and a writer of eminently readable opinions. The junior Justice, in the first few rounds, tends to get opinion writing assignments in cases neither controversial nor of greatest interest. Displaying her good humor and wit, Justice Kagan opened the announcement of one of her opinions for the Court with this line: "If you understand anything I say here, you will likely be a lawyer, and you will have had your morning cup of coffee."
Lawyers and law professors alike pay close attention to the questions Justices pose at oral argument. The 2010-2011 Term was rich in that regard. Questions from the bench ranged from the historical: "[W]hat [did] James Madison th[ink] about video games[?]" to the practical: "[I]sn't ... evidence always .. . destroyed when ... marijuana [once possessed by a suspect] is ... smoked? Isn't it being burnt up?"
Colleagues have been fearful: "Does al-Qaeda know all this stuff?", occasionally philosophical: "[W]hy are you here?" "[W]hy are we all here?", and sometimes openly exasperated: "I know your client doesn't care. But we still have to write [an opinion]. So what['s] the answer?" Queries ran from the natural: "Is the snake covered?" to the unnatural: "[W]here is the 9,OOO-foot cow?" to the supernatural: ''What do you think about Satan?"
Justice Jackson famously commented that the Court is "not final because [it is] infallible, [it is]infallible only because [it is] final." Some musings from the bench last Term bear out that wisdom: "I don't know what I'm talking about," "Is that the best you can find on the other side, ... something I once wrote in a case?" You may not be surprised to learn that I uttered none of the just-recited lines. For, as the New York Times reported, based originally on an empirical study by a former law clerk of mine, when it comes to oral argument,I am-quote-" the least funny Justice who talks." From the foregoing samples, you may better understand why the Court does not plan to permit televising oral arguments any time soon.
Turning to the Term's work, I will report first on our docket. Argued cases numbered 78, the same number as the two preceding Terms. Per curiam opinions in cases decided without full briefing or argument numbered only five, consistent with the 2008-2009 Term, but considerably fewer than last Term. One petition was dismissed post-argument as improvidently granted, and another was remanded before argument in light of a recent development bearing on the question presented. Justice Kagan's recusal in more than one-third of the argued cases generated speculation that the Court would all too often divide 4 to 4; in fact, only two of the 78 argued cases ended in an even division. When that happens, we announce that the judgment we took up for review is affirmed by an equally divided Court. We state no reasons and the disposition does not count as precedent. (A third case last Term was evenly divided only as to threshold jurisdictional issues; and after affirming without opinion the lower court's exercise of jurisdiction, the Court rendered a unanimous decision on the merits of the controversy.)
The Court split 5-4 (or 5-3 with one Justice recused) in 16 of the opinions handed down in argued cases. In comparison to that 20% sharp disagreement record, we agreed, unanimously, on the bottom-line judgment more than twice as often, in 33 (or over 40%) of the decisions. And in more than half of those, 18 of the 33, opinions were unanimous as well.
I will next mention six headline-attracting decisions. Two significant class action cases were among them. The first, AT&T Mobility LLC v. Concepcion,concerned the enforceability of fine-print
July 24, 2011 in Current Affairs, First Amendment, Free Exercise Clause, Recent Cases, Religion, Sexual Orientation, Standing, Supreme Court (US), Television | Permalink | Comments (1) | TrackBack (0)
Friday, July 22, 2011
Today, the White House, Office of the Press Secretary, issued the following "Statement by the President on Certification of Repeal of Don't Ask, Don't Tel"
Today, we have taken the final major step toward ending the discriminatory ‘Don’t Ask, Don’t Tell’ law that undermines our military readiness and violates American principles of fairness and equality. In accordance with the legislation that I signed into law last December, I have certified and notified Congress that the requirements for repeal have been met. ‘Don’t Ask, Don’t Tell’ will end, once and for all, in 60 days—on September 20, 2011.
As Commander in Chief, I have always been confident that our dedicated men and women in uniform would transition to a new policy in an orderly manner that preserves unit cohesion, recruitment, retention and military effectiveness. Today’s action follows extensive training of our military personnel and certification by Secretary Panetta and Admiral Mullen that our military is ready for repeal. As of September 20th, service members will no longer be forced to hide who they are in order to serve our country. Our military will no longer be deprived of the talents and skills of patriotic Americans just because they happen to be gay or lesbian.
I want to commend our civilian and military leadership for moving forward in the careful and deliberate manner that this change requires, especially with our nation at war. I want to thank all our men and women in uniform, including those who are gay or lesbian, for their professionalism and patriotism during this transition. Every American can be proud that our extraordinary troops and their families, like earlier generations that have adapted to other changes, will only grow stronger and remain the best fighting force in the world and a reflection of the values of justice and equality that the define us as Americans.
The brief certification letter is here.
Monday, July 18, 2011
But the Alliance Defense Fund has written a Memo to town clerks with the authority to issue marriage licenses entitled "Your Right to Request An Accommodation of Your Sincerely Held Religious Beliefs Concerning Issuance of Marriage Licenses to Same- Sex Couples."
The Memo does not rely on the statute, or on the First Amendment, but on Executive Law § 296, the Human Rights Law, which includes protection based upon religion.
Section 10 provides: "It shall be an unlawful discriminatory practice for any employer, or an employee or agent thereof, to impose upon a person as a condition of obtaining or retaining employment, including opportunities for promotion, advancement or transfers, any terms or conditions that would require such person to violate or forego a sincerely held practice of his or her religion."
The example provided is observance of holy days. In this case, the clerk would have to connect issuing a marriage license to a "sincerely held practice of his or her religion." The law contains an exemption for the employer's undue hardship, which again is largely focused on time off for religious observance.
The law also has an exemption for religious institutions and organizations; they are allowed to discriminate on the basis if religion under the Human Rights Law.
The Alliance Defense Fund Memo includes a "sample letter" that a clerk could send to the mayor and city council requesting an accommodation.
Tuesday, July 12, 2011
As we've previously discussed, the religious exemption in the NY same-sex marriage statute does not apply to public employees, including town clerks who issue marriage licenses. One town clerk at first said she would not issue licenses.
Today's news has a different town clerk resigning: "I have been in contact with Jason McGuire from New Yorkers for Constitutional Freedoms, our Town Attorney, Richard Lewis, and a Constitutional Lawyer regarding the Marriage Equality Act that was passed June 24, 2011. There was no protection provided in the legislation for Town Clerks who are unable to sign these marriage licenses due to personal religious convictions, even though our US Constitution supports freedom of religion." The letter therafter includes Bible passages.
Monday, July 11, 2011
Ninth Circuit to Federal Government: State Your Intentions Regarding Defending the Constitutionality of DADT
In a brief order today from the Clerk of the Court of the Ninth Circuit in Log Cabin Republicans v. United States, the Ninth Circuit essentially asks the federal government to state its intentions.
Just last week the Ninth Circuit lifted the stay of the district judge's injunction against the enforcement of the military's "don't ask, don't tell" policy relating to sexual orientation.
Today's order provides that after "reviewing the briefs filed by the parties, it appears to the merits panel
that the United States is not prepared to defend the constitutionality" of the don't ask, don't tell statute, 10 U.S.C. § 654. The order continues:
The Government, of course, may refrain from defending the constitutionality of “any provision of any Federal statute.” 28 U.S.C § 530D(a)(1)(B)(ii) (providing that the Attorney General shall submit a report to Congress outlining his decision to refrain from defending a Federal statute); see e.g., Letter from Attorney General to Speaker of House of Representatives (Feb. 23, 2011), filed as Attachment A to the Motion of Appellee / Cross-Appellant Log Cabin Republicans to Vacate Stay of Injunction, Dkt. No. 107, (May 10, 2011). If the Government chooses not to defend the constitutionality of § 654, however, the court may allow amicus curiae to participate in oral argument in support of constitutionality pursuant to Federal Rule of Appellate Procedure 29(g).
The parties have ten days to respond by letter (not more than 10 pages or 2800 words!) as follows:
(1) the Government is hereby ordered to advise the court whether it intends to submit a report to Congress under § 530D(a)(1)(B)(ii) outlining its decision to refrain from defending § 654;
(2) the Government is further ordered, if such report is to be submitted, to advise whether it will do so within such time as to enable Congress to take action to intervene in timely fashion in this proceeding, as provided in § 530D(b)(2);
(3) the parties are ordered to show cause why this case should not be dismissed as moot, either immediately or upon such time as the President certifies that all conditions for the repeal of § 654 set forth in the Don’t Ask, Don’t Tell Repeal Act have been satisfied.
Friday, July 8, 2011
Last month 20 bankruptcy judges in California signed an opinion that concluded that section 3 of DOMA - - - the Defense of Marriage Act - - -was unconstitutional. Thus, a same-sex married couple (under state law) could proceed with their bankruptcy action as a married couple (under federal law).
While the bankruptcy trustee initially appealed the order, today the trustee moved to withdraw the appeal.
The Department of Justice has advised the House Bipartisan Legal Advisory Group (the "BLAG") of the pendency of this appeal, and the BLAG has responded that it does not intend to appear to present arguments in support of Section 3 of DOMA. The BLAG is actively participating in litigation in several other courts . . .
Thus, the trustee "has determined that it is not a necessary or appropriate expenditure" of resources to continue to litigate the appeal.
The bankruptcy judges' opinion, unappealed, is yet another rupture in the constitutional status of DOMA.
Wednesday, July 6, 2011
In a brief order today, the Ninth Circuit lifted its previous stay of District Judge Virginia Phillips injunction against the enforcement of the military's don't ask, don't tell policy with regard to sexual orientation. Recall that the policy codified at 10 U.S.C. § 654 requires that a member of the Armed Forces "shall be separated" from military service under one or more of the following circumstances.
- First, a servicemember shall be discharged if he or she "has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts."
- Second, a servicemember shall be discharged if he or she "has stated that he or she is a homosexual or bisexual, or words to that effect . . . .
- Finally, a servicemember shall be discharged if he or she has married or attempted to marry a person "known to be of the same biological sex."
In Log Cabin Republicans v. United States, Judge Phillips found not only that the government's articulated interest in military readiness and unit cohesion was not served by the policy, but that the policy actually undermined the government interests. Thereafter, the Ninth Circuit granted the DOJ Motion and stayed the district court's injunction (and refusal to stay the injunction) of the military's "don't ask don't tell" policy which the judge had declared unconstitutional.
Today, the three judge panel (Kozinski, Wardlaw, and Paez) of the Ninth Circuit lifted its stay because the "balance of hardships have changed," interestingly citing DOMA developments:
In their briefs, appellants/cross-appellees do not contend that 10 U.S.C. § 654 is constitutional. In addition, in the context of the Defense of Marriage Act, 1 U.S.C. § 7, the United States has recently taken the position that classifications based on sexual orientation should be subjected to heightened scrutiny. See Golinski v. U.S. Office of Pers. Mgmt., No. C 3:10-00257-JSW (N.D. Cal.) (Doc. 145, July 1, 2011) (“gay and lesbian individuals have suffered a long and significant history of purposeful discrimination”); Letter from Attorney General to Speaker of House of Representatives (Feb. 23, 2011) (“there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities”). Appellants/cross-appellees state that the process of repealing Section 654 is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer. The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay.
Thus, the don't ask, don't tell policy of the military is enjoined as unconstitutional.
Oral argument is set for the week of August 29, 2011.
(thanks Jen Hogg)
[image: May 2011, Don't Ask Don't Tell (DADT) Repeal training for enlisted, officer and civilian staff via]
Thursday, June 30, 2011
The nation's smallest state, Rhode Island, is poised to adopt civil unions for same-sex couples. The legislature has passed the statute and Governor Chafee is expected to sign it. However, unlike the New York statute passed last week, the status is not marriage and the religious exemptions are exceedingly broad. In New York, the religious exemptions are limited to solemnization or celebration.
The Rhode Island bill, H6103, amended as H6103aaa, includes this exemption:
Conscience and religious organizations protected.
(a) Notwithstanding any other provision of law to the contrary, no religious or denominational organization, no organization operated for charitable or educational purpose which is supervised or controlled by or in connection with a religious organization, and no individual employed by any of the foregoing organizations, while acting in the scope of that employment, shall be required:
(1) To provide services, accommodations, advantages, facilities, goods, or privileges for a purpose related to the solemnization, certification, or celebration of any civil union; or
(2) To solemnize or certify any civil union; or
(3) To treat as valid any civil union;
if such providing, solemnizing, certifying, or treating as valid would cause such organizations or individuals to violate their sincerely held religious beliefs.
(b) No organization or individual as described in subsection (a) above who fails or refuses to provide, solemnize, certify, or treat as valid, as described in subdivision (a)(1), (a)(2) or (a)(3) above, persons in a civil union, shall be subject to a fine, penalty, or other cause of action for such failure or refusal.
(emphasis added). Thus, under this broad exemption, it seems that religious organizations - - - including "faith-based" organizations that contract with the government to provide services - - - could refuse to recognize a civil union.
Wednesday, June 29, 2011
Despite some possible ambiguities in the religious exemptions to the New York same-sex marriage law, which will be effective July 24, 2011, the clear language does not extend an exemption to public employees in the town clerks offices issuing marriage licenses.
The town clerk or public employee is an individual and obviously not:
A religious entity as defined under the education law or section two of the religious corporations law, or a corporation incorporated under the benevolent orders law or described in the benevolent orders law but formed under any other law of this state, or a not-for-profit corporation operated, supervised, or controlled by a religious corporation, or any employee thereof, being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation as described in this subdivision, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.
Moreover, the town clerk is not a "clergyman or minister as defined in section two of the religious corporations law."
Additionally, in New York, solemnization is distinct from licensing as a legal act; presumably the ministerial duties that accompany the licensing process are also not within the defenition of "celebration."
Thus, the town clerk who has stated her intent to refuse to issue a marriage license to a same-sex couple is certainly not within the statutory requirements. Some great reporting from "Left of the Hudson" discussing clerks seeking their own exemptions in New York and elsewhere.
As for a First Amendment right? Not likely.
Monday, June 27, 2011
Friday, June 24, 2011
Section 1. This act shall be known and may be cited as the "Marriage Equality Act".
S 2. Legislative intent. Marriage is a fundamental human right. Same
couples should have the same access as others to the protections ;responsibilities, rights, obligations, and benefits of civil marriage. Stable family relationships help build a stronger society. For the welfare of the community and in fairness to all New Yorkers, this act formally recognizes otherwise-valid marriages without regard to whether the parties are of the same or different sex. It is the intent of the legislature that the marriages of same-sex and different-sex couples be treated equally in all respects under the law. The omission from this act of changes to other provisions of law shall not be construed as a legislative intent to preserve any legal distinction between same-sex couples and different-sex couples with respect to marriage. The legislature intends that all provisions of law which utilize gender-specific terms in reference to the parties to a marriage, or which in any other way may be inconsistent with this act be construed in a gender-neutral manner or in any way necessary to effectuate the intent of this act.
S 3. The domestic relations law is amended by adding two new sections 10-a and 10-b:
S 10-a. Parties to a marriage.
1. A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex.
2. No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage, whether deriving from statute, administrative or court rule, public policy common law or any other source of law, shall differ based on the parties the marriage being or having been of the same sex rather than a different sex. When necessary to implement the rights and responsibilities of spouses under the law, all gender-specific language or terms shall be construed in a gender-neutral manner in all such sources of law.
S10-b is the religious exemptions and nonseverability amendments here. In an interesting move, the Senate voted on the amendments before voting on the bill. A few Senators mentioned the importance of the religious exemptions in determining their affirmative votes.
The bill passed by a narrow margin in the Republican-controlled Senate. Senator Steven Saland was one of the deciding votes and his statement is here. Governor Cuomo, who actively supported the bill, is expected to sign it. [update: Cuomo signed bill]. New York will then become the sixth state in the United States that currently recognizes same-sex marriage as a legal relationship. New York would join Massachusetts, Connecticut, Vermont, New Hampshire, and Iowa, as well as the District of Columbia. California and Maine had legal same-sex marriage for a limited time; California's Proposition 8 limiting marriage to opposite sex couples was declared unconstitutional by a federal judge, but that ruling was stayed and the case is presently on appeal.
NY Assembly approved an amendment sent by the Senate regarding religious exemptions for the same-sex marriage bill that the New York Senate is expected to vote on this evening. UPDATE:Senate passed bill.
The proposed amendment provides:
2011-2012 Regular Sessions I N ASSEMBLY June 24, 2011
Introduced by M. of A. O'DONNELL -- (at request of the Governor) -- read once and referred to the Committee on Judiciary AN ACT to amend the domestic relations law, in relation to the ability to marry; and to amend a chapter of the laws of 2011, amending the domestic relations law relating to the ability to marry, as proposed in legislative bill number A. 8354, in relation to the statutory construction of such chapter; and repealing certain provisions of the domestic relations law relating to parties to a marriage THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM BLY, DO ENACT AS FOLLOWS:
Section 10-b of the domestic relations law, as added by a chapter of the laws of 2011, amending the domestic relations law relat ing to the ability to marry, as proposed in legislative bill number A. 8354, is REPEALED and a new section 10-b is added to read as follows:
S 10-B. RELIGIOUS EXCEPTION. 1. NOTWITHSTANDING ANY STATE, LOCAL OR MUNICIPAL LAW, RULE, REGULATION, ORDINANCE, OR OTHER PROVISION OF LAW TO THE CONTRARY, A RELIGIOUS ENTITY AS DEFINED UNDER THE EDUCATION LAW OR SECTION TWO OF THE RELIGIOUS CORPORATIONS LAW, OR A CORPORATION INCORPO RATED UNDER THE BENEVOLENT ORDERS LAW OR DESCRIBED IN THE BENEVOLENT ORDERS LAW BUT FORMED UNDER ANY OTHER LAW OF THIS STATE, OR A NOT-FOR-PROFIT CORPORATION OPERATED, SUPERVISED, OR CONTROLLED BY A RELIGIOUS CORPORATION, OR ANY EMPLOYEE THEREOF, BEING MANAGED, DIRECTED, OR SUPERVISED BY OR IN CONJUNCTION WITH A RELIGIOUS CORPORATION, BENEVO LENT ORDER, OR A NOT-FOR-PROFIT CORPORATION AS DESCRIBED IN THIS SUBDI VISION, SHALL NOT BE REQUIRED TO PROVIDE SERVICES, ACCOMMODATIONS, ADVANTAGES, FACILITIES, GOODS, OR PRIVILEGES FOR THE SOLEMNIZATION OR CELEBRATION OF A MARRIAGE. ANY SUCH REFUSAL TO PROVIDE SERVICES, ACCOM MODATIONS, ADVANTAGES, FACILITIES, GOODS, OR PRIVILEGES SHALL NOT CREATE ANY CIVIL CLAIM OR CAUSE OF ACTION OR RESULT IN ANY STATE OR LOCAL GOVERNMENT ACTION TO PENALIZE, WITHHOLD BENEFITS, OR DISCRIMINATE AGAINST SUCH RELIGIOUS CORPORATION, BENEVOLENT ORDER, A NOT-FOR-PROFIT EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD12066-08-1
A. 8520 2 CORPORATION OPERATED, SUPERVISED, OR CONTROLLED BY A RELIGIOUS CORPO RATION, OR ANY EMPLOYEE THEREOF BEING MANAGED, DIRECTED, OR SUPERVISED BY OR IN CONJUNCTION WITH A RELIGIOUS CORPORATION, BENEVOLENT ORDER, OR A NOT-FOR-PROFIT CORPORATION. 2. NOTWITHSTANDING ANY STATE, LOCAL OR MUNICIPAL LAW OR RULE, REGU LATION, ORDINANCE, OR OTHER PROVISION OF LAW TO THE CONTRARY, NOTHING IN THIS ARTICLE SHALL LIMIT OR DIMINISH THE RIGHT, PURSUANT TO SUBDIVISION ELEVEN OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW, OF ANY RELIGIOUS OR DENOMINATIONAL INSTITUTION OR ORGANIZATION, OR ANY ORGAN IZATION OPERATED FOR CHARITABLE OR EDUCATIONAL PURPOSES, WHICH IS OPER ATED, SUPERVISED OR CONTROLLED BY OR IN CONNECTION WITH A RELIGIOUS ORGANIZATION, TO LIMIT EMPLOYMENT OR SALES OR RENTAL OF HOUSING ACCOMMO DATIONS OR ADMISSION TO OR GIVE PREFERENCE TO PERSONS OF THE SAME RELI GION OR DENOMINATION OR FROM TAKING SUCH ACTION AS IS CALCULATED BY SUCH ORGANIZATION TO PROMOTE THE RELIGIOUS PRINCIPLES FOR WHICH IT IS ESTAB LISHED OR MAINTAINED. 3. NOTHING IN THIS SECTION SHALL BE DEEMED OR CONSTRUED TO LIMIT THE PROTECTIONS AND EXEMPTIONS OTHERWISE PROVIDED TO RELIGIOUS ORGANIZATIONS UNDER SECTION THREE OF ARTICLE ONE OF THE CONSTITUTION OF THE STATE OF NEW YORK. S 2. Subdivision 1-a of section 11 of the domestic relations law, as added by a chapter of the laws of 2011, amending the domestic relations law relating to the ability to marry, as proposed in legislative bill number A.8354, is amended to read as follows:
1-a. A refusal by a clergyman or minister as defined in section two of the religious corporations law, or Society for Ethical Culture leader to solemnize any marriage under this subdivision shall not create a civil claim or cause of action OR RESULT IN ANY STATE OR LOCAL GOVERNMENT ACTION TO PENALIZE, WITHHOLD BENEFITS OR DISCRIMINATE AGAINST SUCH CLER GYMAN OR MINISTER. S 3. A chapter of the laws of 2011, amending the domestic relations law relating to the ability to marry, as proposed in legislative bill number A. 8354, is amended by adding a new section 5-a to read as follows:
S 5-A. THIS ACT IS TO BE CONSTRUED AS A WHOLE, AND ALL PARTS OF IT ARE TO BE READ AND CONSTRUED TOGETHER. IF ANY PART OF THIS ACT SHALL BE ADJUDGED BY ANY COURT OF COMPETENT JURISDICTION TO BE INVALID, THE REMAINDER OF THIS ACT SHALL BE INVALIDATED. NOTHING HEREIN SHALL BE CONSTRUED TO AFFECT THE PARTIES' RIGHT TO APPEAL THE MATTER. S 4. This act shall take effect on the same date as such chapter of the laws of 2011, takes effect.
Friday, June 17, 2011
ConLawProf Diane Mazur's recent book published by Oxford University Press, A More Perfect Military: How the Constitution Can Make Our Military Stronger argues that the military has become unmoored from constitutional constraints. The Court, she argues, has not only engaged in military deference, but in military exceptionalism.
In an interview about the book, Mazur states "the military is most healthy when it respects constitutional values. Unfortunately, since the end of the Vietnam draft, our civilian branches of government–the President, Congress, and the courts–have been trying to distance the military from the Constitution. They assume that constitutional values get in the way of military effectiveness, but that’s not true."
Much of her book concerns the constitutional concerns of equality: how should the military deal with sexual minorities and with women within its ranks? She provides concrete examples, but argues that the Court - - - in cases such as the unanimous opinion in Rumsfeld v. FAIR (the Solomon Amendment case) - - - has impeded the military from diversifying.
Tuesday, June 14, 2011
United States District Judge James Ware, who assumed the case of Perry v. Schwarzenegger (now Perry v. Brown) after the retirement of Judge Vaughn Walker, has issued his opinion on the motion to vacate Walker's judgment that California's Proposition 8 is unconstitutional. Walker issued his opinion after an extensive trial in January 2010.
As expected given the clear state of the law, Judge Ware denied the motion. As Judge Ware's opinion stated, "The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself," citing, Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 660 (10th Cir. 2002); MacDraw, Inc. v. CIT Group Equip. Financing, Inc., 138 F.3d 33, 37 (2d Cir. 1998); Blank v. Sullivan & Cromwell, 418 F. Supp. 1, 4 (S.D.N.Y. 1975); Feminist Women’s Health Center v. Codispoti, 69 F.3d 399, 400 (9th Cir. 1995); United States v. Alabama, 828 F.2d 1532,1541-42 (11th Cir. 1987); In re City of Houston, 745 F.2d 925, 931 (5th Cir. 1984).
The question of personal bias based on identity rising to the level mandating recusal is a fraught one. Indeed, it is usually persons who have not traditionally been members of the judiciary who are most likely to be perceived as biased. Professor Reg Graycar's work, which we discussed here, provides extensive examples. Judge Ware expressly acknowledges this situation: "it would not be reasonable to regard a fact as bringing a judge’s impartiality into question if doing so would institute a “double standard for minority judges” whereby the fact that a judge is gay, or black, or female would “raise doubts about [that judge’s] impartiality.” (quoting United States v. Alabama, 828 F.2d at 1542).
Judge Ware ultimately concludes:
the presumption that “all people in same-sex relationships think alike” is an
unreasonable presumption, and one which has no place in legal reasoning. The presumption that
Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief. On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits. The Motion fails to cite any evidence that Judge Walker would be incapable of being impartial, but to presume that Judge Walker was incapable of being impartial, without concrete evidence to support that presumption, is inconsistent with what is required under a reasonableness standard.
Judge Ware does not broach the subject of whether any judge would be impartial in the Proposition 8 case, given the arguments that the Defendant-Intervernors have advanced. Specifically, in light of the Defendant-Intervernors' arguments that same-sex marriage is injurious to opposite-sex marriage, presumably anyone who had entered into an opposite-sex marriage - - - or who might be eligible to enter into an opposite-sex marriage - - - would be biased.
[image: A Judge, Wenzel Hollar, circa 1650)
The United States Bankruptcy Court for the Central District of California has allowed a same-sex married couple to proceed with their federal bankruptcy action as a married couple, despite the federal Defense of Marriage Act (DOMA).
The Debtors have demonstrated that DOMA violates their equal protection rights
afforded under the Fifth Amendment of the United States Constitution, either under
heightened scrutiny or under rational basis review. Debtors also have demonstrated
that there is no valid governmental basis for DOMA. In the end, the court finds that
DOMA violates the equal protection rights of the Debtors as recognized under the due
process clause of the Fifth Amendment.
The judges discuss Attorney General Holder's letter regarding the unconstitutionality of DOMA, but the opinion has its own equal protection analysis, discussing both heightened scrutiny and rational basis.
(h/t Sara Pearl Bird)
[image of bankruptcy code in USCA via]
June 14, 2011 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fifth Amendment, Fundamental Rights, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)
Thursday, June 2, 2011
President Obama has issued a Presidential Proclamation declaring "June 2011 as Lesbian, Gay, Bisexual, and Transgender Pride Month" and calling "upon the people of the United States to eliminate prejudice everywhere it exists, and to celebrate the great diversity of the American people." Here's the opening:
The story of America's Lesbian, Gay, Bisexual, and Transgender (LGBT) community is the story of our fathers and sons, our mothers and daughters, and our friends and neighbors who continue the task of making our country a more perfect Union. It is a story about the struggle to realize the great American promise that all people can live with dignity and fairness under the law. Each June, we commemorate the courageous individuals who have fought to achieve this promise for LGBT Americans, and we rededicate ourselves to the pursuit of equal rights for all, regardless of sexual orientation or gender identity.
In the area of LGBT families, DOMA is noticeably absent, but it appears under the last section, "Supporting LGBT Progress":
- President Obama has called for the Congressional repeal of the discriminatory “Defense of Marriage Act” and has announced that in his view, Section 3 of DOMA is unconstitutional
- President Obama also continues to support legislation that would directly impact the LGBT community, including an inclusive ENDA and the Domestic Partners Benefits and Obligations Act
- President Obama believes that all students should be safe and healthy and learn in environments free from discrimination, bullying and harassment; that we must ensure adoption rights for all couples and individuals, regardless of their sexual orientation; and that Americans with partners from other countries should not be faced with a painful choice between staying with their partner or staying in their country
Wednesday, April 27, 2011
Footnote 5 provides:
Criminal sodomy laws in effect in 1791:
Connecticut: 1 Public Statute Laws of the State of Connecticut, 1808, Title LXVI, ch. 1, § 2 (rev. 1672).
Delaware: 1 Laws of the State of Delaware, 1797, ch. 22, § 5 (passed 1719).
Georgia had no criminal sodomy statute until 1816, but sodomy was a crime at common law, and the General Assembly adopted the common law of England as the law of Georgia in 1784. The First Laws of the State of Georgia, pt. 1, p. 290 (1981).
Maryland had no criminal sodomy statute in 1791. Maryland's Declaration of Rights, passed in 1776, however, stated that "the inhabitants of Maryland are entitled to the common law of England," and sodomy was a crime at common law. 4 W. Swindler, Sources and Documents of United States Constitutions 372 (1975).
Massachusetts: Acts and Laws passed by the General Court of Massachusetts, ch. 14, Act of Mar. 3, 1785.
New Hampshire passed its first sodomy statute in 1718. Acts and Laws of New Hampshire 1680-1726, p. 141 (1978).
Sodomy was a crime at common law in New Jersey at the time of the ratification of the Bill of Rights. The State enacted its first criminal sodomy law five years later. Acts of the Twentieth General Assembly, Mar. 18, 1796, ch. DC, § 7.
New York: Laws of New York, ch. 21 (passed 1787).
At the time of ratification of the Bill of Rights, North Carolina had adopted the English statute of Henry VIII outlawing sodomy. See Collection of the Statutes of the Parliament of England in Force in the State of North Carolina, ch. 17, p. 314 (Martin ed. 1792).
Pennsylvania: Laws of the Fourteenth General Assembly of the Commonwealth of Pennsylvania, ch. CLIV, § 2 (passed 1790).
Rhode Island passed its first sodomy law in 1662. The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations 1647-1719, p. 142 (1977).
South Carolina: Public Laws of the State of South Carolina, p. 49 (1790).
At the time of the ratification of the Bill of Rights, Virginia had no specific statute outlawing sodomy, but had adopted the English common law. 9 Hening's Laws of Virginia, ch. 5, § 6, p. 127 (1821) (passed 1776).
Footnote 6 of the opinion then lists the "Criminal sodomy statutes in effect in 1868."
These footnotes are from the opinion of Justice White (pictured above via) for the Court in Bowers v. Hardwick, 478 U.S. 186 (1986), in which the Court reversed the Eleventh Circuit, and held Georgia's sodomy statute constitutional, based in large part on its reasoning that these criminal statutes formed a background against which a "claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious."
Bowers v. Hardwick was reversed by Lawrence v. Texas,539 U.S. 558 (2003).
Thursday, April 7, 2011
Affirming a state trial judge's conclusion rendered almost a year ago, the Arkansas Supreme Court today declared the Arkansas law banning adoption by unmarried couples unconstitutional under the state constitution in a 25 page opinion, Arkansas Department of Human Services v. Cole.
The law, Act One, was passed by the voters in November 2008 and prohibited cohabiting same-sex couples and (unmarried) heterosexual couples from becoming foster or adoptive parents.
The Arkansas Supreme Court held that there is a fundamental, if implicit, right of privacy in the state constitution: "under the Arkansas Constitution, sexual cohabitors have the right to engage in private, consensual, noncommercial intimacy in the privacy of their homes." This right was infringed by Act One which "precludes all sexual cohabitors, without exception, from eligibility for parenthood, whether by means of adoption or foster care." The court found it objectionable that under Act One state "agencies must 'police' couples seeking adoption or foster care to determine whether they are sexually involved in the event those couples represent that they are celibate."
Based on the existence of the fundamental right, the court applied a "heightened scrutiny" standard which it defined as requiring a compelling interest and least restrictive method to carry out that interest.
The court articulated the interests and concerns raised by the state and the intervenor, Family Council Action Committee, that has sponsored the ballot initiative. These concerns included arguments that unmarried cohabiting relationships are less stable, put children at higher risk for domestic violence and abuse, and have lower income rates, higher infidelty rates, and less "social support." The court did not engage in any discussion about whether or not such propositions were true, but instead concluded that such concerns could be "addressed by the individualized screening process currently in place in foster and adoption cases."
Thus, the individualized assessments were the least restrictive means and the categorical ban failed to pass "constitutional muster."
(H/T Tony Infanti, at Feminist Law Professors Blog)
[image: by Moritz Pläschke, circa 1888) via]
April 7, 2011 in Cases and Case Materials, Family, Fundamental Rights, Gender, Opinion Analysis, Privacy, Sexual Orientation, Sexuality, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)
Tuesday, March 22, 2011
A "mini-symposium" on April 7, 2011, starting at 3pm, will feature a lecture on "One State's Challenge to the Defense of Marriage Act" by Maura Healey, Chief, Civil Rights Division, Massachusetts Attorney General's Office.
Healy (pictured right) will be speaking about Massachusetts' successful constitutional challenge to section 3 of DOMA; Judge Tauro found that section 3 "offends" the Tenth Amendment reasoning that marriage is a quintessential matter of state, and not federal, power.
Healy's talk will be followed by a panel discussion, moderated by Steve Sanders, and including:
- Thomas M. Fisher, Solicitor General, State of Indiana
- Dawn Johnsen, Walter W. Foskett Professor, Indiana University Maurer School of Law, and former Deputy Assistant Attorney General, U.S. Department of Justice
- Brian Powell, Rudy Professor of Sociology, Indiana University College of Arts & Sciences and co-author of Counted Out: Same-sex Relations and Americans' Definitions of the Family
- Deborah Widiss, Associate Professor, Indiana University Maurer School of Law
More information about the event and its webcast available here.
Wednesday, March 16, 2011
The judicial finding that the Defense of Marriage Act is unconstitutional, preceded by DOJ's vigorous defense of DOMA in another case, some waffling, and then the announcement that the DOJ will not defend the constitutionality of DOMA, which some characterized as a constitutional crisis, has seriously compromised the future of DOMA.
§ 7. Marriage
(a) For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual's marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.
Feinstein was joined by co-sponsors Patrick Leahy (D-Vt.), Kirsten Gillibrand (D-N.Y.), John Kerry (D-Mass.), Barbara Boxer (D-Calif.), Chris Coons (D-Del.), Ron Wyden (D-Ore.), Frank R. Lautenberg (D-N.J.), Richard Blumenthal (D-Conn.), Jeff Merkley (D-Ore.), Dick Durbin (D-Ill.), Al Franken (D-Minn.), Patty Murray (D-Wash.), Sheldon Whitehouse (D-R.I.), Charles Schumer (D-N.Y.), Mark Udall (D-Colo.), Jeanne Shaheen (D-N.H.), Dan Inouye (D-Hawaii), and Daniel Akaka (D-Hawaii).
The precusor Respect for Marriage Act was previously introduced in 2009.
With considerably less fanfare, the State Department has amended its policy to include same-sex partners of foreign service employees. (H/T Professor Janet Calvo). Here is an excerpt from the State Department's explanation of the process:
Scenario Three: American Foreign Service Employee Partners with Same-Sex American or non-American
Amending the Orders: To add your same-sex domestic partner to your orders, you will need to provide your HR Assignment Technician with an updated Foreign Service Residence and Dependency Report (OF-126), a completed affidavit Pursuant to Declaring Domestic Partner Relationship (DS-7669 ), and a medical clearance. The DS-7669 affidavit should be submitted to the State Department’s Bureau of Human Resources, Office of the Executive Director, Assignment Support Unit (HR/EX/ASU). As soon as your HR Assignment Technician has all of these documents, he/she can process your orders. Guidance can be found at 3 FAM 1600. In addition, if your partner is not a U.S. citizen, please note procedures outlined in 12 FAM 275 – Reporting Cohabitation with and/or Intent to Marry a Foreign National (http://www.state.gov/documents/organization/88344.pdf) or contact HR/CDA.
For non-US partners, this will include an alteration of the immigration policies, to include a same-sex partner that would not be included ordinarily:
Foreign-born partners holding non-U.S. passports: If your new partner is not an American citizen, he/she may be able to enter the U.S. on a J-1 visa. In February, 2011, the Department designated the Bureau of Human Resources as an Exchange Visitor Program (J-1 visa) sponsor for a government visitor program under which non-US-citizen same-sex domestic partners (SSDP) of members of the Foreign Service may be eligible to come to the United States during their partners' domestic assignments. . . .
Strictly speaking, this process is not barred by DOMA, but it does cast even more doubt on the federal government's committment to enforcing DOMA.
Meanwhile, earlier this month Speaker of the House John Boehner issued a statement entitled House Will Ensure DOMA Constitutionality Is Determined By The Court:
“Today, after consultation with the Bipartisan Leadership Advisory Group, the House General Counsel has been directed to initiate a legal defense of this law. This action by the House will ensure that this law’s constitutionality is decided by the courts, rather than by the President unilaterally.”
March 16, 2011 in Courts and Judging, Current Affairs, Executive Authority, Family, Federalism, Foreign Affairs, Fundamental Rights, Gender, News, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)