Thursday, September 29, 2011

The End of DADT: Litigation Moot but Still Worth Discussing?

The Ninth Circuit issued a per curium opinion today in Log Cabin Republicans v. United States dismissing the case as moot.  This is absolutely predictable. 

Despite extensive litigation which we last mentioned here, with the repeal of 10 U.S.C. § 654(b) effective September 20, 2011, the policy known as DADT, "don't ask, don't tell,"  regarding sexual minorities in the military was no longer law.  Thus, a challenge to the statute's constitutionality is no longer a live "cae or controversy" under Article III.


[image: President Obama certifying the conditions of the Repeal Act, July 22, 2011, repealing DADT, via]


The Ninth Circuit opinion, however, is no so simple.  The panel considered and rejected two arguments by Log Cabin Republicans that the case should not be dismissed as moot.  

First, the panel rebuffed the argument that while the injunctive relief might be moot, the declaratory relief might not be.  The speculation that "a future Congress whose composition, agenda, and circumstances we cannot know—will reenact Don’t Ask, Don’t Tell," or that the same Congress that enacted the Repeal Act could change course, was mere speculation and "our speculation cannot breathe life into this case."

Second, the panel strongly repudiated the claim of “collateral consequences” from a challenged statute even when the statute is repealed.  The panel resolved this issue by simply stating that any missed benefits discharged service members may have lost as a result of their separation pursuant to DADT were not legal penalties from past conduct, they did not fall within collateral consequences exception.  However, the panel went farther:

Because Log Cabin has stated its intention to use the district court’s judgment [holding DADT unconstitutional] collaterally, we will be clear: It may not. Nor may its members or anyone else. We vacate the district court’s judgment, injunction, opinions, orders, and factual findings—indeed, all of its past rulings—to clear the path completely for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect. The repeal of Don’t Ask, Don’t Tell provides Log Cabin with all it sought and may have had standing to obtain.

Judge Diarmuid O'Scannlain wrote a specially concurring opinion, as lengthy as the per curium decision, devoted not to the question of mootness, but to share his thoughts about Lawrence v. Texas:  "I write separately because our inability to reach the merits may leave uncertainty about the role Lawrence v. Texas, 539 U.S. 558 (2003), may have in substantive due process challenges. Although Congress spared us the need to reach the merits in this case, other such challenges will come to the courts."  

Judge O'Scannlain, widely regarded as exceedingly conservative, thus wrote an essentially advisory opinion, violating the basic premise of the Article III case and controversy requirement.  It seems a bit paradoxical that he wrote this in a case in which the panel dismissed the claim as moot, lest the court render an advisory opinion in contravention of the Article III case and controversy requirement.


September 29, 2011 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Mootness, Opinion Analysis, Sexual Orientation, Sexuality, Standing | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 28, 2011

Town Clerk Update: NY Same-Sex Marriage Law and Town Clerk Seeking Religious Exemption

As the NYT reported yesterday, the clash between the same-sex marriage law in NY, the Marriage Equality Act, and the objections, religiously based, of public employees including town clerks, if fomenting.

Town clerk As we previously discussed, while the Marriage Equality Act has a religious exemption, this does not cover town clerks who issue marriage licenses.  And as we also previously discussed, the Alliance Defense Fund issued a memo to town clerks entitled  "Your Right to Request An Accommodation of Your Sincerely Held Religious Beliefs Concerning Issuance of Marriage Licenses to Same- Sex Couples."

The NYT quotes the clerk in the rural community, Rose Marie Belforti, as saying  "state law 'protects my right to hold both my job and my beliefs.' "  While the article doesn not mention the memo, the state law claim is indeed discussed in the memo, which does not argue the First Amendment. 

At issue may be the contours of "religious accommodation."  According to the NYT article, the clerk's office is open only a limited number of hours, but same-sex couples desiring a marriage license needed to telephone in advance for a special appointment so that a substitute clerk could handle the matter.  The Town Clerk is an elected position.


September 28, 2011 in Current Affairs, Equal Protection, Family, First Amendment, Free Exercise Clause, Fundamental Rights, Gender, News, Religion, Sexual Orientation, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, September 19, 2011

Justiciability under the New York State Constitution: Motion to Dismiss Same-Sex Marriage Challenge

The state has filed a Motion to Dismiss in New Yorkers for Constitutional Freedoms v. New York State Senate, the challenge to New York's same-sex marriage statute.  The plaintiffs, "New Yorkers for Constitutional Freedoms" describes its mission on its website thusly: "As a Christian ministry, NYCF exists to influence legislation and legislators for the Lord Jesus Christ." (emphasis in original)).

The motion to dismiss has some discussion of the merits, which as we have previously noted are very weak, but devotes most of its argument to justiciability issues under the state constitution.  The State Attorney of New York argues that "to the extent plaintiffs complain about Senate procedures, this case is nonjusticiable."  Essentially, the Attorney General argues that the case presents a political question and the entry into the fray would violate separation of powers under the state constitution.  The Attorney General also argues that the plaintiffs lack standing under the state constitution.  The plaintiffs cannot allege a personally concrete injury or how it suffered any injury distinct from the public at large.


September 19, 2011 in Family, News, Sexual Orientation, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Friday, September 9, 2011

Julie Nice on CLS v. Martinez, the First Amendment, and Equality

Julie nice The intersections of constitutional protections for liberty, equality, free speech, and free exercise of religion can make for convoluted and contentious cases.  Christian Legal Society (CLS) v. Martinez, decided by the Court in 2010, is a prime example, with the additional factual setting at a law school heightening the interest for legal scholars.

In How Equality Constitutes Liberty: The Alignment of CLS v. Martinez, 38 Hastings Const. L.Q. 631 (2011), Professor Julie Nice, University of San Francisco School of Law, pictured left, argues that the case illuminates several different doctrinal and theoretical controversies, ultimately making liberty more robust because it refuses the conflation of identity and ideology.  

The article is further discussed as my selection for the Jotwell Equality section; it's the best essay I've read on constitutional equality in the last year.  It's essential reading for every ConLawProf.



September 9, 2011 in Equal Protection, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Profiles in Con Law Teaching, Religion, Scholarship, Sexual Orientation, Sexuality, Speech, Supreme Court (US), Theory | Permalink | Comments (1) | TrackBack (0)

Tuesday, September 6, 2011

Ninth Circuit: Arizona's Denial of Benefits to Same-Sex Partners of Public Employees Violates Equal Protection

In a relatively brief opinion today, a panel of the Ninth Circuit affirmed a district judge's finding that Arizona's denial of health care benefits to same-sex partners of public employees violated the Equal Protection Clause. 

 In Diaz v. Brewer, the Ninth Circuit panel considered a challenge by public employees, including several university faculty members, to "Section O," from House Bill 2013, which included a statutory provision, Ariz. Rev. Stat. § 38-651(O) that redefined “dependents” as “spouses,” and thus eliminate coverage for domestic partners allowed by a 2008 act.  

On appeal, the state argued that the district court improperly construed the complaint's allegations as true and that the district court "impermissibly recognized a constitutional right to healthcare."  The Ninth Circuit found both of these arguments rested on  a "misunderstanding" of the district judge's opinion.  The court stated:

The state is correct in asserting that state employees and their families are not constitutionally entitled to health benefits. But when a state chooses to provide such benefits, it may not do so in an arbitrary or discriminatory manner that adversely affects particular groups that may be unpopular. The most instructive Supreme Court case involving arbitrary restriction of benefits for a particular group perceived as unpopular is U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973).

The Ninth Circuit carefully discussed Moreno - - - the "hippie food stamp case" as many students refer to it - - - and then articulated an equally careful analogy: 

Here, as in Moreno, the legislature amended a benefits program in order to limit eligibility. Since in this case eligibility was limited to married couples, different-sex couples wishing to retain their current family health benefits could alter their status — marry — to do so. The Arizona Constitution, however, prohibits same-sex couples from doing so.

The Ninth Circuit was quite clear that it was applying rational basis scrutiny, as the district judge had also been, and held that Section O was based on a bare desire to harm a politically unpopular group. 

The "framers of the Constitution," the court stated, quoting Justice Robert Jackson in Railway Express Agency v. New York, "knew, and we should not forget today that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally."


September 6, 2011 in Equal Protection, Gender, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 17, 2011

What's Rational About Rational Basis Review?: Same-Sex Marriage Litigation in Perspective

This is from SCOTUSblog's  same-sex marriage symposium featuring discussions about the Proposition 8 litigation and DOMA litigation, both of which may be heading for the United States Supreme Court.

My contribution focuses on the rational basis standard of review:

The federal Defense of Marriage Act (DOMA) and California’s Proposition 8 are both subject to judicial review under a standard at least as rigorous as rational basis.

There are serious and worthwhile arguments that courts should employ a more rigorous standard of review than rational basis in same-sex marriage litigation.  However, federal district judges in two important decisions that may be heading to the United States Supreme Court have concluded that DOMA and Proposition 8 cannot survive even the low standard of rational basis.  Considering DOMA Section 3, federal district judge Joseph Tauro in Gill v. Office of Personnel Management declined to decide whether the federal statute should be subject to strict scrutiny “because DOMA fails to pass constitutional muster even under the highly deferential rational basis test.”   Similarly, ruling on Proposition 8 in Perry v. Schwarzenegger, federal district judge Vaughn Walker held that although the “trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation,” the application of “strict scrutiny is unnecessary,” because “Proposition 8 fails to survive even rational basis review.”

Judge Tauro’s decision is on appeal to the First Circuit, while Judge Walker’s decision is awaiting resolution of the important issue of whether the proponent/intervenors have standing to appeal to the Ninth Circuit, with a certified question presently before the California Supreme Court.   Whether the rational basis standard of review should be used to evaluate DOMA is also before Judge Barbara Jones of the Southern District of New York in Windsor v. United States. The Department of Justice is not defending the constitutionality of DOMA in Windsor, having concluded that DOMA fails to meet the heightened level of scrutiny it has determined should be used for sexual orientation classifications.   The Bipartisan Legal Advisory Group of The United States House of Representatives (BLAG), defending DOMA in Windsor, filed its Memorandum on August 1, vigorously asserting that rational basis is the correct standard and that DOMA easily satisfies it.


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August 17, 2011 in Commerce Clause, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Gender, Sexual Orientation, Sexuality, Speech, Supreme Court (US), Weblogs | Permalink | Comments (0) | TrackBack (0)

Friday, August 12, 2011

First Circuit Rejects NOM's Challenges to Disclosure Laws

National Organization for Marriage ("NOM"), a New Jersey-based nonprofit corporation organized for the purpose of providing "organized opposition to same-sex marriage in state legislatures,"  challenged state laws from both Maine and Rhode Island that require it to disclose its expenditures in the respective states. 

Both federal district judges considering the actions largely rejected NOM’s challenges and the First Circuit has also rejected the challenges in a lengthy opinion in National Organization for Marriage v. McKee, regarding the Maine laws, and a much more brief opinion on the Rhode Island statute in National Organization for Marriage v. Daluz, which relies upon McKee.  In addition, NOM wanted the trial proceedings to be sealed, which the court also rejected.

Money In part, NOM challenged Maine’s definition of NOM as a PAC (political action committee), arguing that “any law defining an organization as a PAC is subject to strict scrutiny"  because as "a matter of law, not fact,"  PAC status is burdensome and subjects an entity to "extensive regulations."   The First Circuit found the argument unpersuasive, and further distinguished Citizens United, because Maine's provision does not condition political speech on the creation of a separate organization or fund, establishes no funding or independent expenditure restrictions, and imposes three simple obligations on an entity qualifying as a PAC: filing of a registration form disclosing basic information, quarterly reporting of election-related contributions and expenditures, and simple recordkeeping.  

The First Circuit therefore applied  exacting scrutiny - - - rather than strict scrutiny - - - requiring a "substantial relation" between the law and a "sufficiently important governmental interest."  Again citing Citizens United, the panel concluded that the goal of providing "the electorate with information as to where political campaign money comes from and how it is spent" to be such a "sufficiently important" governmental interest capable of supporting a disclosure law.

Regarding the substantial relationship, the court considered various provisions in the Maine statutory scheme separately.  The court roundly rejected NOM’s contention that to be substantially related, the disclosure requirement could only be imposed upon a PAC that had as its “major purpose” the nomination or election of a candidate.  Quoting District Judge Hornsby, the panel agreed that NOM’s interpretation would "yield perverse results" :

Under NOM's interpretation, a small group with the major purpose of re-electing a Maine state representative that spends $1,500 for ads could be required to register as a PAC. But a mega-group that spends $1,500,000 to defeat the same candidate would not have to register because the defeat of that candidate could not be considered the corporation's major purpose.    

NOM also argued that the $100 threshold for disclosure was unconstitutional - - - as too low and as unchanging.  The First Circuit noted that it had upheld a $50 threshold a decade ago, and saw no need to depart from that view.

The panel agreed with the district court that "Citizens United has effectively disposed of any attack on Maine's attribution and disclaimer requirements.”  NOM had argued that the required disclosures will "distract readers and listeners from NOM's message."  Instead, the court held that the “requirements are minimal, calling only for a statement of whether the message was authorized by a candidate and disclosure of the name and address of the person who made or financed the communication, and again relying on Citizens United, stating that these were precisely the same requirements approved in Citizens United, and that indeed, the statute at issue in Citizens United was slightly more prescriptive.

The panel also rejected NOM’s arguments that the Maine statutory scheme was unconstitutionally vague.  Specifically, NOM posed challenges to three sets of terms: (1) "promoting," "support," and "opposition"; (2) "influencing"; and (3) "initiation." In addition, NOM claims that the definition of "expressly advocate" is unconstitutionally vague because it invites the use of context to determine the purpose of a communication.  The court upheld all of these terms, including reversing the district judge’s finding that “influencing” suffered from vagueness.  The panel considered state law, as it said it must, that had provided a limiting construction to the term.     

Regarding NOM's final complaint - - - that the district judge erred in not sealing the proceedings - - - the First Circuit reasoned that

NOM's argument flips the proper analysis on its head. The presumption here favors openness, and a court need make no finding, let alone one of "true necessity," in order to make the proceedings and documents in a civil trial public. Instead, it is the party seeking to keep documents sealed who must make a showing sufficient to overcome the presumption of public access.  

There was only minimal reliance by the First Circuit on Doe v. Reed, the decision by the Supreme Court last year regarding disclosure of names on a petition in Washington state.  The panel noted that NOM did not contend that it would be subject to threats or harassment given its disclosure.  In the context of the request to have the trial record sealed, the court stated that "NOM's claims that its contractors and service-providers could be subject to harassment also lack support, resting upon allegations of harassment against a vendor that performed work for supporters of California's Proposition 8."  Clearly, this was insufficient. 

[image:Victor Dubreuil, Money to Burn,1893, via]

August 12, 2011 in Campaign Finance, Elections and Voting, First Amendment, Opinion Analysis, Sexual Orientation, Sexuality, Speech, Standing | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 26, 2011

DOMA in New York: NY Attorney General Files Brief in Windsor v US

Last November, Edith Windsor filed a complaint in the Southern District of New York as the survivor of a same-sex couple married in Canada.  Windor seeks a refund of estate taxes paid because the marriage was not recognized by the federal government and argues that the Defense of Marriage Act, DOMA, section 3 is an unconstitutional denial of equal protection.

Today, the Attorney General of New York filed an amicus brief supporting Windsor.  With same-sex marriage now legal in New York (although a challenge was filed yesterday), the state has a substantial interest in the effect of DOMA.  The state joins Windor's equal protection arguments, but also raises a Tenth Amendment argument:

Although plaintiff has not raised a Tenth Amendment claim in her complaint, principles of federalism should inform this Court’s review of her equal-protection claim as well. Federalism protects not merely the interests of state governments, but also individual liberty: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Bond v. United States, 131 S. Ct. 2355, 2364 (2011). The power of Congress is at its lowest when it seeks to discourage States from enacting statutes, like the Marriage Equality Act, that are at the core of the States’ sovereignty. In analyzing the validity of the Gun-Free School Zones Act under the Commerce Clause, Justice Kennedy instructed that “[A]t the least we must inquire whether the exercise of national power seeks to intrude upon an area of traditional state concern.” United States v. Lopez, 514 U.S. 549, 580 (1995) (Kennedy, J., concurring). So too here, the analysis of the statute must take into account that it intrudes on an area of traditional state concern.

The brief then cites the Massachusetts DOMA distict court opinion, Massachusetts v. US, presently on appeal.

While the Obama Administration is not defending DOMA - - - itself having decided DOMA is unconstitutional - - - it is noteworthy that at this point, New York is only filing an amicus brief and not filing a complaint of its own unlike Massachusetts.


The New York Attorney General's brief is disconcerting in one respect.  It argues,

Because New York has consistently expressed and implemented its commitment to equal treatment for same-sex couples, New York has a strong interest in ensuring that the “protections, responsibilities, rights, obligations, and benefits,” ch. 95, § 2, 2011 N.Y. Laws at __, accorded to them under federal law by virtue of marriage are equal to those accorded to different-sex married couples.

Yet some might argue that New York's "commitment" to equality for same-sex couples has been less than total.  The state's highest court, the New York Court of Appeals, reversed lower courts and rejected a claim that limiting marriage to opposite sex couples was unconstitutional in Hernandez v. Robles in 2006.  Hernandez v. Robles applied rational basis scrutiny and in much criticized passage reasoned that the legislature could "rationally decide that, for the welfare of children, it is more important to promote stability" and that because heterosexual relationships lead to children and that because "such relationships are all too often casual or temporary," the legislature "could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born" and it could thus " choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other."  The court reasoned that this inducement rationale "does not apply with comparable force to same-sex couples" who can become "parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse." Thus,

The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

Perhaps it is understandable why the New York Attorney General would not want to mention Hernandez v. Robles - - - the brief does not cite it - - - but it does belie New York's "consistent" support for same-sex marriage.


July 26, 2011 in Cases and Case Materials, Current Affairs, Equal Protection, Family, Federalism, Gender, Sexual Orientation, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Monday, July 25, 2011

State Constitutional Law Challenge to New York's Same-Sex Marriage Statute

New York's same-sex marriage statute, passed June 24, 2011, became effective Sunday, July 24, amidst a great deal of marrying covered in many press venues, including from the NYT covering events throughout NY, at the traditional honeymoon site of Niagra Falls, the state capitol Albany, and New York City, not to mention a special style section.


There has been some controversy regarding the religious exemptions in the statute, including the role of town clerks, but now there is a broader challenge to the statute.

The statute was challenged in a complaint (h/t Capitol Confidential) filed today by a group called New Yorkers for Constitutional Freedoms, which describes its mission on its website thusly: "As a Christian ministry, NYCF exists to influence legislation and legislators for the Lord Jesus Christ." (emphasis in original).

The complaint alleges:

In Seeking declaratory and injunctive relief, the Plaintiffs in this case seek to preserve not only marriage as the union of one woman to one man, but also our constitutional liberties by acting as a check on an out-of-control political process that was willing to pass a bill regardless of how many laws and rules it violated.

According to the complaint, the violations included:

  • Meetings that violated New York State Open Meetings Laws;
  • The suspension of normal Senate voting procedures to prevent Senators who opposed the bill from speaking;
  • Failure to follow Senate procedures that require that a bill must be sent to appropriate committees prior to being placed before the full Senate for a vote;
  • Unprecedented Senate lock-outs by which lobbyists and the public were denied access to elected representatives;
  • The Governor’s violation of the constitutionally mandated three-day review period before the Legislature votes on a bill by unjustifiably issuing a message of necessity;
  • Promises (which were fulfilled) by high-profile elected officials and Wall Street financiers to make large campaign contributions to Republican senators who switched their vote from opposing to supporting the Marriage Equality Act;
  • A private dinner between the Republican Senators and Governor Cuomo at the Governor’s mansion, with the public and press excluded, aimed at convincing Republican Senators to vote in favor of the bill.

Once notorious as having a legislative process known as  "three men in a room"  - - - discussed in a 2006 book with that name - - - many observers believe the process has actually improved.  However, the state constitution, as the complaint points out, requires "the doors of each house [of the legislature] shall be kept open, except when the public welfare shall require secrecy." NY Const. Article III, section 10.  The Senate "lock-out" of "lobbyists" in its "lobby" is argued as violating this provision.

Jimmy Vielkind, reporting for Capitol Confidential, of the Albany Times-Union, provides some reactions to the lawsuit.  Vielkind also reports that the NY State Open Meeting law claim has a very small chance of success: "Fun fact: the state legislature has a specific, blanket, exemption from the Open Meetings Law that was enacted into law in 1985, according to Bob Freeman, executive director of the Committee on Open Government at the Department of State."   Indeed, the statute's legislative exemption is exceedingly broad.

[image: Bride Embellished by Her Girlfriend, by Henrik Olrik, circa 1859, via]

July 25, 2011 in Family, News, Sexual Orientation, Sexuality, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Sunday, July 24, 2011

Justice Ruth Bader Ginsburg: On the 2010 Term

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. WinnChamber 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?" RuthBaderGinsburg

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




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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

Obama on DADT: Repeal

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.


July 22, 2011 in Executive Authority, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Monday, July 18, 2011

Same-Sex Marriage in NY & the Religious Exemption: Alliance Defense Fund's Memo to Town Clerks

The New York Same-Sex Marriage statute, which becomes effective July 24, contains a religious exemption, although not for town clerks as we've previously discussed. 

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.  

Town clerk

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.


July 18, 2011 in Current Affairs, Family, First Amendment, Religion, Sexual Orientation, Sexuality, State Constitutional Law | Permalink | Comments (3) | TrackBack (0)

Tuesday, July 12, 2011

Same-Sex Marriage in NY & the Religious Exemption: Town Clerk News

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. Town clerk

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.



July 12, 2011 in Current Affairs, Religion, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Monday, July 11, 2011

Ninth Circuit to Federal Government: State Your Intentions Regarding Defending the Constitutionality of DADT

[update here]

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).

Repeal of DADT

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.

[image via]

July 11, 2011 in Congressional Authority, Courts and Judging, Current Affairs, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Friday, July 8, 2011

Government will not appeal bankruptcy judges' decision that DOMA Unconstitutional

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.


In a pleading filed today, the trustee represented that not only will the Department of Justice not defend the constitutionality of DOMA, but that

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.


July 8, 2011 in Cases and Case Materials, Congressional Authority, Current Affairs, Equal Protection, Family, Gender, News, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 6, 2011

DADT Enjoined by Ninth Circuit: Military Cannot Enforce Don't Ask, Don't Tell

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.

Repeal DADT Training

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]


July 6, 2011 in Cases and Case Materials, Current Affairs, Equal Protection, Fundamental Rights, News, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Thursday, June 30, 2011

Rhode Island Civil Union - Religious Exemptions Include Civil Union Status

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.

Rhode island

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.


June 30, 2011 in Current Affairs, Equal Protection, Family, Gender, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Wednesday, June 29, 2011

Same Sex Marriage in New York: Religious Exemptions Do Not Extend to Public Employees

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.  Town clerk sign

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.

[Update here]


June 29, 2011 in Current Affairs, Family, First Amendment, Gender, News, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Monday, June 27, 2011

Same-Sex Marriage States

Screen shot 2011-06-27 at 12.51.35 PM Gse_multipart39203




A guest-post over at IntLawGrrls reviews last Friday's passage of a same-sex marriage law in New York in context of other states: geographic, legal, and political.



June 27, 2011 in Gender, International, News, Sexual Orientation, Sexuality, State Constitutional Law, Theory, Weblogs | Permalink | Comments (0) | TrackBack (0)

Friday, June 24, 2011

New York Legislature: Senate Passes Same-Sex Marriage Bill

In a highly anticipated event, this evening the New York State Senate debated and passed "The Marriage Equality Act," 33-29, with religious exemption provisions.

420px-New_York_State_Senate_journal,_1832 The Act provides in part:

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. 


[image via]

June 24, 2011 in Current Affairs, Family, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)