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)
Thursday, March 3, 2011
Harvard Civil Rights - Civil Liberties Journal has held an online forum on Professor Libby Adler’s piece (available on the forum) entitled “Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform."
Adler, author of The Gay Agenda, here argues for a "critical approach to law reform agenda setting," with a methodology that
rests on a distinction between reconstruction and decisionism. Decisionism, according to my usage, consists of making difficult choices about which law reform initiatives to undertake based on broadly informed distributional hypotheses and cost-benefit calculations and then acting on the best information one can get with the best judgment one can muster, always prepared to bear the costs of one’s choices. Each law reform achievement, should it materialize, rather than being a step along a path in the direction of a lodestar such as formal equality, will—one hopes—effectuate a positive distributive impact for marginalized persons while imposing bearable costs. As a theoretic matter, the achievement is likely to be generalizable only to a limited extent, if at all. In other words, it will not necessarily further any overarching theoretic objective
Twelve invited commentators respond to Libby Adler's advocation of “decisionism" including Angela Harris, Art Leonard, Aziza Ahmad, Francisco Valdes, Katherine Franke, Nancy Polikoff, Darren Rosenblum, Sarah Valentine, and Anthony Varona.
Adler's piece and the comments demonstrate that the problem of "rights" in constitutional law remain a persistent issue, as well as the problems of "equality" and "identity."
This forum could be an excellent basis for discussion in a constitutional law seminar or a jurisprudence class.
A "live" Colloquium will be held on March 9, 2011 at 5-7p.m. at Harvard Law School in Austin North.
Tuesday, March 1, 2011
The DOJ's decision not to defend the constitutionality of DOMA, but to continue to enforce DOMA, is being illustrated in a few examples, such as that of Karen Golinski, the lawyer who works for the Ninth Circuit Court of Appeals as the ABA Journal noted. An excellent overview by Aziz Huq over at Slate compares Golinski's situation to that of a few others who the DOJ decision might assist.
While the administration's DOMA shift is unusual, it is not rare. It has happened more than a dozen times since 2004 and many more in the past 60 years, including in some very important cases.
- During the Eisenhower, Kennedy and Truman administrations, the presidents, in one form or another, refused to defend separate-but-equal facilities in schools and hospitals.
- The Ford Justice Department refused to defend the post-Watergate campaign finance law, much of which was subsequently upheld by the Supreme Court.
- The Reagan administration refused to defend the independent counsel law, a law subsequently upheld by the Supreme Court by a 7-to-1 vote.
- It also refused to defend the one-house legislative veto of many executive actions; in that case, the administration was more successful, winning 7-2 in the Supreme Court.
- The Clinton administration refused to defend a federal law mandating the dismissal of military personnel who were HIV-positive.
- The George W. Bush administration refused to defend a federal law that denied mass-transit funds to any transportation system that displayed ads advocating the legalization of marijuana.
- And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcasting licenses — a law subsequently upheld by the Supreme Court by a narrow 5-4 vote. Solicitor General Kenneth Starr was recused in the case, so the lead counsel for the government in the case was Starr's deputy, a fellow by the name of John Roberts, now the chief justice of the United States.
Listen to broadcast here: 20110301_me_17
Friday, February 25, 2011
The Obama DOJ's announcement that it will no longer defend the constitutionality of the Defense of Marriage Act has provoked a range of reactions.
New Gingrinch, in the video below (via) states that the president "is not a one-person Supreme Court" and that
the House Republicans next week should pass a resolution instructing the president to enforce the law and to obey his own constitutional oath, and they should say if he fails to do so that they will zero out [defund] the office of attorney general and take other steps as necessary until the president agrees to do his job."
Attorney General Holder anticipates such arguments in his original letter to Congress:
the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one. “[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.” Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).
Steve Sanders on the U Chicago Law School Faculty Blog supports the DOJ analysis; Tony Infanti discusses the tax consequences and Sheila Velez Martinez discusses the immigration aspects over at Feminist Law Professors.
Wednesday, February 23, 2011
Eric Holder, Attorney General of the United States, informed Congress today that "After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment."
Holder's letter is worth reading in full. It contains a lengthy and substantive discussion of the law, focusing on equal protection theory and doctrine to support this conclusion:
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.
Nevertheless, the letter states that DOMA will continued to be enforced by the Executive branch.
Holder also issued a Statement which outlines the arguments and conclusions.
This is a reversal of earlier policy in which the DOJ appealed a district judge's opinion that DOMA was unconstitutional. And it is quite different from the DOJ defense of DOMA in which the Obama Administration argued "DOMA is rationally related to legitimate government interests and cannot fairly be described as "born of animosity toward the class of persons affected.""
Holder will now "instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3."
Thursday, February 17, 2011
In the landmark case of Lawrence v. Texas, the United States Supreme Court held a statute criminalizing sodomy violated due process as guaranteed by the Fourteenth Amendment. The opinion specifically noted that the case did not involve commercial sex.
But may a state constitutionally punish commercial sex involving sodomy more severely than commercial sex generally?
The complaint in Doe v. Jindal contrasts two types of commercial sex offenses: the "Crime Against Nature by Solicitation" statute criminalizes solicitation of "unnatural carnal copulation for compensation;" the general prostitution statute criminalizes solicitation of "indiscriminate sexual intercourse" for compensation. Because of the broad definition of "sexual intercourse," the general prostitution statute actually includes any act punishable by the more narrow "unnatural carnal copulation" statute.
However, the punishment for two statutes is not identical, even after recent amendments. Additionally, only convictions under one of these statutes requires registration as a sex offender. According to the complaint, Louisiana is the only state that requires sex offender registration for any solicitation offense.
The complaint alleges that this statutory scheme is a denial of equal protection, due process, and the Eighth Amendment. While due process may be the most obvious claim after Lawrence, recall O'Connor's concurring opinion in Lawrence on equal protection grounds and recall Powell's concurring opinion in Bowers v. Hardwick (the case Lawrence overruled) raising the specter of the Eighth Amendment.
Monday, February 14, 2011
Jurisdictions that do not recognize same-sex marriages or civil unions have nevertheless been sites of petitions for divorce or dissolution of a legal status granted in another jurisdiction. In an article forthcoming in California Western International Law Journal, Professor L. Lynn Hogue argues that such a denial is unconstitutional.
Hogue's article is entitled The Constitutional Obligation To Adjudicate Petitions for Same-Sex Divorce and the Dissolution of Civil Unions and Analogous Same- Sex Relationships: Prolegomenon to a Brief, and is available on ssrn here. He bases his argument on what he terms a "trifecta" of three cases: Williams v. North Carolina, 317 U.S. 287 (1942), which considers the validity of migratory divorce, Boddie v. Connecticut, 401 U.S. 371 (1971), holding unconstitutional a mandatory filing fee for divorce, and Hughes v. Fetter, 341 U.S. 609 (1951), a less well known case discussing the Full Faith and Credit Clause. Hogue concludes that this "trifecta," which he amplifies with a host of other cases, must prevail over Congress' Defense of Marriage Act and state jurisdictional rules.
It's a succinct argument suitable for Valentine's Day reading.
Friday, January 28, 2011
In a relatively brief (by US standards) and long anticipated opinion (English translation), the court reasoned that the issue of equality - - - or not - - - between same-sex couples and opposite sex couples is one for the legislature and the court should not "substitute" its own judgment. The French opinion provides:
estimé que la différence de situation entre les couples de même sexe et les couples composés d'un homme et d'une femme peut justifier une différence de traitement quant aux règles du droit de la famille ; qu'il n'appartient pas au Conseil constitutionnel de substituer son appréciation à celle du législateur sur la prise en compte, en cette matière, de cette différence de situation....
This reasoning is familiar to those who have read other cases, in the US and elsewhere, that have rejected challenges to excluding same-sex couples from marriage.
France has had same-sex civil unions since 1999, but the status lacks the parental and inheritance rights accorded to married couples.
Thursday, January 20, 2011
On November 2, 2010, three Iowa Supreme Court justices stood for retention and were not retained by the voters of Iowa. This result is widely assumed to be attributable to the campaign against the judges based upon the Iowa Supreme Court's unanimous opinion in Varnum v. Brien holding that a denial of same-sex marriage is unconstitutional under the state constitution.
Filling those vacancies under the state constitutional process is done by the State Judicial Nominating Commission which accepts applications and create a list of three nominees for each vacancy for the Governor's appointment. The Commission has 15 members, 7 of whom were appointed and 7 of whom were elected by members of the Iowa Bar, as well as the chair who is the Iowa Supreme Court justice “who is senior in length of service on said court, other than the chief justice."
The gravamen of the complaint is that the plaintiffs, who are not members of the Iowa Bar, are denied their Equal Protection rights and their voting rights because they are excluded from participating in the elections of the elective members of the Commission.
In a 35 page opinion Judge Pratt dismissed the Complaint. He stated:
At base, Plaintiffs are asking this Court to recognize an entirely new substantive Fourteenth Amendment right. The Court declines Plaintiffs’ invitation to do so. It not the business of the federal courts “to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.” See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33 (1973). That is especially true, where, as here, Plaintiffs have failed to provide adequate legal support for their asserted “right to equal participation.” The Court concludes that Plaintiffs do not have a right, let alone a fundamental right, to “equal participation” in the selection of state court judges—at least not as that “right” is conceptualized by Plaintiffs.
Interestingly, Pratt's language reverberates with the very accusations that were lodged against the unretained Iowa judges - - - creating new substantive rights and essentially being "activist." The complaint was filed on behalf of four Iowans by James Bopp, Jr.
Judge Pratt's opinion analyzes whether or not the members of the Commission are representative of any constituencies and concludes they are not. His conclusion is straightforward:
Undoubtedly, the right to vote for political representatives is the bedrock of American
democracy. In this case, however, Plaintiffs are asking the Court to radically expand the scope of this fundamental right beyond all existing precedent and to recognize an entirely new Fourteenth Amendment “right” to greater influence in the selection of judges. Their claims, therefore, are fatally flawed. Plaintiffs may prefer that Iowa had a different method of judicial selection, but absent a violation of a clearly-established constitutional right, the people of Iowa are entitled to retain the judicial selection system they chose in 1962.
According to the Iowa Judicial Nominating Commission, more than 60 candidates have filed applications (and supporting materials) for the 3 vacancies.
Relatedly, there have been proposals to impeach the remaining Justices who joined the unanimous opinion in Varnum v. Brien: Press Release from Iowa representative here; Des Moines Register reporting here; NYT editorial here.
Monday, December 6, 2010
The extensive oral argument in Perry v. Schwarzenegger has just concluded before a panel of the Ninth Circuit. In Perry, federal district judge Walker found California's Proposition 8 unconstitutional, and the case is on appeal under an expedited schedule.
The two hour and 45 minute video from C-SPAN, with an uncorrected transcript, is available here.