March 19, 2013
Daily Read: US v. Windsor, the DOMA Case, Amicus Brief of Scholars of the Constitutional Rights of Children in Support of Windsor
Second in a Series: Guest Post by Anetta Sookhdeo, City University of New York (CUNY) School of Law, class of 2014
The brief of the Scholars of the Constitutional Rights of Children (including Professor Tanya Washington, pictured) in support of Respondent, Edith Windsor, responds to several of BLAG’s assertions that the Defense of Marriage Act (DOMA) advances the welfare of children by (1) providing a stable structure to raise unintended and unplanned offspring; (2) encouraging the rearing of children by their biological parents and (3) promoting childrearing by both a mother and a father. These goals are discredited by the Amici because they merely reflect a preference for children to be raised by opposite-sex parents.
The Amici assert that DOMA creates a classification based on children living in households headed by same-sex parents and those living in households headed by opposite-sex parents. Subsequently, children are harmed by treating these two classes differently, even though they are identically situated. To bolster this point, the Amici cite an October 2011 study that estimates about two million children make up the class of children being raised by LGBT parents. Of those, according to the United States Census, between three hundred thousand and one million children are being raised by same-sex couples. Moreover, these numbers are likely to increase as more states begin to legally recognize same-sex marriages.
Additionally, DOMA deprives children of important federal resources and protections by making households headed by same-sex parents ineligible to receive them. The Amici assert that these benefits and resources, which include the Family Medical Leave Act (FMLA), Federal Employees Health Benefits Program, Social Security payments to spouses and filing joint tax returns, are important safety features to protect children within family units. For example, the goal of the FMLA to promote stability and economic security of families is not extended to households where children are raised by same-sex parents. Whereas eligible opposite-sex married couples are eligible to take up to twelve weeks of unpaid leave to care for a sick child, spouse or parent, same-sex married couples are ineligible for this benefit. The Amici argue that children within these families being deprived of federal resources have the same need and interest in family security and stability and suffer an injury that is cumulative over the course of their lifetimes.
Furthermore, children suffer psychological harm as a result of DOMA symbolically expressing inferiority of families headed by same-sex parents. According to the Amici, the purpose and effect of DOMA is to stigmatize families with same-sex parents and, by extension, the children of those families. DOMA accomplishes this result by communicating to those children in households headed by same-sex couples that their family unit is “morally objectionable and functionally deficient.” The Amici argue that the Court has already spoken through Brown v. Board of Education and Plyler v. Doe those statutes which place a stigma on children and confer adverse psychological effects are unconstitutional.
The Amici’s second argument is that DOMA should be invalidated because it does not survive any level of scrutiny for punishing children based on moral disapproval for the conduct of their parents. The Court’s goal and history of protecting the right of children to “self-determination and to flourish fully in a society without being hampered by legal, economic and social barriers” is seen by the decisions in Levy v. Louisiana and Weber v. Atena Casualty & Surety Co. In these cases, the court decided that invidious classifications based on illegitimacy were impermissible. The Amici acknowledge that while the state may have a valid interest in promoting marriage and childbirth within marriages, the state is not permitted to exclude a group of children who have identical interests in the benefits at issue, simply because the group of children is disfavored.
In addition, the Amici argue that the outcome of Plyler indicates the Court’s view that a foundational mission of the Equal Protection Clause is “to work [for] nothing less than the abolition of all caste-based and invidious class-based legislation.” Plyler indicated that while states could disapprove of the presence of undocumented immigrants in the United States, they could not justify the imposition of disabilities on the minor children of undocumented immigrants. The Amici argue that, under the mission of the Court and past rulings, laws that discriminately determine legal, economic and social status of children are prohibited.
Lastly, the Amici argue that states may not enforce moral disapproval against children based on the relationship between their parents. The decision in Palmore v. Sidoti held that “Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti, 466 U.S. 429 (1984). Nor may the Court rely on such private biases which draw “impermissible, overbroad generalizations about different talents, capacities or preferences of males or females”. Caban v. Mohammed, 441 U.S. 380 (1979). The Amici urge the Court to find that DOMA gives effect to private bias against same-sex couples, particularly in regards to private biases about gender-role stereotypes in parenting, and should be found unconstitutional.
This brief bolsters the Government’s position by highlighting an argument that largely went unnoticed but is also at the heart of the issue being decided. The brief adds cases that were not before mentioned in the Government’s brief and provides additional avenues to argue that DOMA should be held unconstitutional. For example, the Government’s brief does not discuss Brown v. Board of Education, but here Brown is used as a primary case to advocate for invalidating a statute that adds a stigma against children of households headed by same-sex couples.
[posted and edited by RR]
March 18, 2013
Daily Read: US v. Windsor, the DOMA Case, Amicus Brief of Senators Hatch et. al. in Support of BLAGFirst in a Series: Guest Post by Meghan McLoughlin, City University of New York (CUNY) School of Law, class of 2014
Brief on the merits of the Amici Curiae United States Senators Orrin G. Hatch (pictured), Saxby Chambliss, Dan Coats, Thad Cochran, Mike Crapo, Charles Grassley, Lindsey Graham, Mitch McConnell, Richard Shelby, and Roger Wicker in support of respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives.
The Amici were all sitting United States Senators who served in the 104th Congress House or Senate and voted for passage of the Defense of Marriage Act (“DOMA”). Their interest in writing this brief was to inform the Court of the important interests that DOMA was enacted to serve. Therefore, this brief does not explore the equal protection levels of scrutiny and their applicability to DOMA or discuss every interest in enacting DOMA, as the Bipartisan Legal Advisory Group (“BLAG”) did in their brief. Rather, the The Amici’s argument focuses on and expounds specifically federal interests that were considered and explained throughout DOMA’s legislative history, but which the Amici feel were ignored, misunderstood, or summarily dismissed in the courts below.
First, the Amici contend alongside BLAG that pre-DOMA law did not recognize same-sex marriage, and that DOMA merely reaffirmed the existing federal definition. Like BLAG, the brief cites to other federal statutes and benefits describing spouses as husband and wife, and explains that at the time federal benefit statutes were enacted, no state recognized same-sex marriages. Both briefs state that DOMA was a response to the Hawaii case, Baehr v. Lewin, but the Amici go as far to describe Congress’s view that Baehr was “part of an orchestrated legal assault being waged against traditional heterosexual marriage.” [Brief, pg. 2]
Second, the Amici echoed BLAG’s asserted interest of uniformity and certainty in the application of federal law. In addition to BLAG’s claim that a federal definition of marriage is necessary to ensure that couples in different states do not have different eligibility to receive Federal benefits, the Amici also explain that DOMA was enacted to avoid state by state and statute by statute litigation over whether a couple who had married in a state that recognized same-sex marriage would be “married” if they moved to another state. The outcome of this type of litigation would largely depend on whether a state had a strong public policy against same-sex marriage, which would vary state to state. DOMA was enacted to prevent this litigation, which would have varying and inconsistent results. The Amici further contend that there is nothing suspicious or novel about Congress preferring this uniformity over deference to state law – especially when Congress is confronted by an effort to change the definition of marriage contrary to history and tradition.
Third, similarly to BLAG, the Amici reject the argument that DOMA interferes with the autonomy of states to define marriage and claim that Section 3 of DOMA protects the ability of states to preserve traditional marriage. Like BLAG, the Amici reference Section 2 of DOMA as preserving and protecting the autonomy of each individual state. In addition, the Amici claim that Section 3 of DOMA preserves the traditional definition of marriage by removing the incentive that might otherwise encourage efforts to change state law to recognize same-sex marriage. The Amici state that if recognizing same-sex marriage would allow same-sex couples to obtain federal benefits, those seeking recognition by the courts would have a powerful weapon, especially in the cases of sympathetic plaintiffs.
Finally, the Amici devote the last section of their brief to the claim that support for traditional marriage is not unconstitutional animus. Although BLAG also contends that DOMA is not motivated by animus, the Amici specifically claim that the Court’s animus jurisprudence does not support invalidating an otherwise constitutional statute based on the subjective motivations of individual legislators. Thus, where, as here, there is sufficient legislative history to indicate the law is rationally related to some legitimate governmental interest, the law cannot be invalidated by the improper motives of some legislators. Moreover, the Amici argue, there is no basis to equate support for the traditional definition of marriage with unconstitutional animus. They contend it is not irrational or bigoted to oppose the redefinition of marriage that is unknown to history or tradition.
The Amici did not present any entirely new interests or arguments in support of DOMA, but rather further explained and detailed interests that have already been discussed in the BLAG brief and in the court decisions below. It was an opportunity for the Amici to present more rationales connecting the asserted interests to DOMA but did not necessarily help in understanding BLAG’s arguments. In addition, the Amici characterized the potential for recognition of same-sex marriage as an orchestrated conspiracy to undermine their view of marriage, which may not have been appropriate for a party’s brief given its strong language.
[posted and edited by RR]
March 17, 2013
Weekly Read: US v. Windsor, the DOMA Case, Amicus Briefs
With the oral argument in United States v. Windsor testing the constitutionality of DOMA set for March 27 (the day after the related Prop 8 case, Hollingsworth v. Perry), the amicus briefs have been piling up (and one more, from General Edwin Meese III and John Ashcroft, will apparently be added).
Recall that in United States v. Windsor, the constitutionality of DOMA is being argued by BLAG, the Bipartisan Legal Advisory Group of the U.S. House of Representatives, while Windsor (as well as the United States Government) argues that DOMA is unconstitutional. This unusual configuration raises some standing issues, but the merits briefs focus on the constitutionality of DOMA under the equal protection component of the Fifth Amendment.
In case you haven't had a chance to read each one of the amicus briefs, this week we highlight four briefs, in guest posts authored by CUNY School of Law students in Professor Andrea McArdle's "Judicial Writing Seminar." The student authors will briefly outline the arguments and then discuss what, if anything, the particular amicus brief adds to the parties' briefs.
Here's the line-up:
Meghan McLoughlin discusses the brief of Senators Orrin G. Hatch et. al in support of respondent BLAG.
Anetta Sookhdeo discusses the brief of the Scholars of the Constitutional Rights of Children in support of Windsor.
Versely Rosales discusses the brief of the National Association of Evangelicals; The Ethics & Religious Liberty Commission of the Southern Baptist Convention; The Church of Jesus Christ of Latter-Day Saints; The Lutheran Church-Missouri Synod; The Romanian-American Evangelical Alliance of North America; and Truth in Action Ministries in support of BLAG.
Allison Reddy discusses the brief of the CATO Institute and the Constitutional Accountability Center in support of Windsor.
March 13, 2013
Divided Fourth Circuit Panel Declares Virginia's Sodomy Law Unconstitutional: A Decade After Lawrence v. Texas
William Scott MacDonald was arrested more than a year after Lawrence v. Texas (2003), for solicitation to violate Virginia's (anti-)sodomy law, Va. Stat §18.2-361(A): "If any person . . . carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a [felony.]" He was eventually sentenced to ten years, with nine years suspended, and thereafter compelled to register as a sex offender. His life, as Adam Liptak reported in 2011, has not been easy.
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.
In MacDonald's situation, the solicitation - - - all parties agree no sex actually occurred - - - was found to be of a 17 year old woman. (Interestingly, the 47 year old MacDonald had originally contacted law enforcement alleging that the young woman had sexually assaulted him; he was also convicted of the misdemeanor of making a false report.) The prosecution thus successfully argued that Lawrence v. Texas was inapposite since the Virginia statute - - - as applied - - - was constitutional. This argument succeeded even though the the age limit in the solicitation statute was 15, not 18.
The Commonwealth of Virginia was similarly successful in its arguments in state courts on direct appeal and postconviction relief. MacDonald thereafter sought federal habeas relief, with the district judge rejecting the constitutional arguments.
The Fourth Circuit's opinion yesterday in MacDonald v. Moose belatedly provides relief for MacDonald. The panel majority wrote that "we are constrained" to find an entitlement to habeas corpus relief on the ground that the Virginia anti-sodomy provision "facially violates the Due Process Clause of the Fourteenth Amendment." The Fourth Circuit's opinion seems at times quite deferential to Virginia, but at two points the opinion sharpens its rhetoric.
First, the panel points to an inconsistency in Virginia's treatment of MacDonald:
The Commonwealth’s efforts to diminish the pertinence of Lawrence in connection with MacDonald’s challenge to the anti-sodomy provision — an enactment in no way dissimilar to the Texas and Georgia statutes deemed unconstitutional by the Supreme Court — runs counter to Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005). In that case, the Supreme Court of Virginia evaluated the constitutionality of a state statute having nothing to do with sodomy, but instead outlawing ordinary sexual intercourse between unmarried persons. The state supreme court nonetheless acknowledged that Lawrence was sufficiently applicable to require the statute’s invalidation.
Second, in a footnote the panel majority expressed its disagreement with the dissent in terms that questioned Virginia's prosecutorial choices:
The dissent’s finely honed distinction that, unlike Lawrence and Bow- ers, this "case" involves minors, is made possible solely by the Commonwealth’s decision to institute prosecution of a man who loathsomely solicited an underage female to commit an act that is not, at the moment, a crime in Virginia. The Commonwealth may as well have charged Mac- Donald for telephoning Ms. Johnson on the night in question, or for persuading her to meet him at the Home Depot parking lot. The legal arm of the Commonwealth cannot simply wave a magic wand and decree by fiat conduct as criminal, in usurpation of the powers properly reserved to the elected representatives of the people.
March 11, 2013
Daily Read: Symposium Issue on Perry from NYU Review of Law & Social Change
Debuting on line today is volume 37:1 of the NYU Review of Law & Social Change, a symposium issue dedicated to Perry v. Brown, now Hollingsworth v. Perry that is scheduled to be heard by the United States Supreme Court in 15 days.
According to the Introduction, the Symposium editors sought to present the issue as a "time capsule," filled with "leading and emerging voices in the LGBTQ movement" as well as other scholars, "reflecting on Perry before the Court has its final say, before anyone gets the benefit of 20/20 hindsight." The comments were "first drafted before the Court had even granted certiorari" on the premise that Perry was already an important case.
The Symposium participants were asked to address three queries. Here are the questions and the participants:
The Symposium will also be available as a print issue, but meanwhile having its full contents available before the arguments makes it more valuable as a daily - - - or weekly - - - read.
March 06, 2013
. . . and even more former Justice O'Connor, now with Jon Stewart on The Daily Show
The former Justice O'Connor seems to be a whirlwind publicity tour promoting her new book, following her interviews on Fresh Air and the Rachel Maddow Show with a two part interview with Jon Stewart on The Daily Show.
March 05, 2013
More O'Connor on Fresh Air Promoting her Book
O'Connor is promoting her new book, Out of Order: Stories from the History of the Supreme Court, reviewed in the NYT yesterday.
Update: more O'Connor here.
Daily Read: Former Justice O'Connor on the Rachel Maddow Show
Today's "read" is the video of former Justice O'Connor on "The Interview" segment of the Rachel Maddow Show. It raises ethics issues in an interesting way as well as gender in the Court and Bush v. Gore as not very "special" although also "important."
It starts at 5.35 below:
March 04, 2013
Daily Read: Toobin on Justice Ginsberg in New Yorker
Jeffrey Toobin's profile of Justice Ginsburg, entitled The Heavyweight, is behind a paywall at The New Yorker, but news outlets are already reporting some material, including Justice Ginsburg's plan not to retire this year (or next).
Toobin characterizes Ginsburg as "reserved, noting that there "is some irony in Ginsburg’s reputation for reserve, because she is, by far, the current Court’s most accomplished litigator. Before Chief Justice John G. Roberts, Jr., became a judge, he argued more cases than Ginsburg did before the Justices, but most of them were disputes of modest significance."
Worth a read - - - especially for those who like celebrity legal profiles.
March 01, 2013
Update on the Jacket in the United States Supreme Court Building
No, not John Paul Cohen's jacket about the draft, central to the 1971 case of Cohen v. California.
This jacket was worn a little over a year ago and prompted an arrest as we discussed then.
Recall that the Supreme Court Building has special status, arguably as a First Amendment free-zone. And although the charges were dropped against last year's jacket wearer - - - Fitzgerald Scott - - - he brought suit in the United States District Court for the District of Columbia.
In its memorandum supporting its motion to dismiss,the United States Attorney's office includes this intriguing point heading: "The Fact that Plaintiff’s Jacket Conveyed a Message Only Reinforces the Conclusion that There Was Probable Cause for the Arrest." Essentially, the government argues that the "message" does not support a First Amendment claim of political speech targeted because of its content, but instead is a "concession" under 40 U.S.C. § 6135, prohibiting the display of items designed to bring notice to an organization or movement within the United States Supreme Court building. Recall that the Supreme Court has upheld the constitutionality of §6135.
While it seems that Scott has an uphill battle under the current precedent, his battle is certainly a reminder of Justice Thurgood's Marshall observation that the Supreme Court occupies an ironic position with regard to the First Amendment.
February 27, 2013
Daily Read: William Faulkner and the Voting Rights Act
As the Court - - - and the country - - - consider the Voting Rights Act (VRA) and the constitutionality of the preclearance provision at issue in Shelby County v. Holder ConLawProfs might find useful the insights of Andrew Cohen, Atiba Ellis, Adam Sewer (on CJ Roberts), Adam Winkler or numerous others. But the observations of William Faulkner (pictured), Nobel Prize in Literature recipient who placed Yoknapatawpha County, Mississippi on our (fictional) maps are also pertinent according to Joel Heller's excellent article, Faulkner’s Voting Rights Act: The Sound and Fury of Section Five, 40 Hofstra Law Review 929 (2012), and available on ssrn.
Joel Heller argues that pronouncements that 'The South has changed' fail to take into account the "ongoing burden of memory that Faulkner portrays so powerfully." Heller contends that the VRA's section 5 preclearance provision "does not punish the sons for the sins of the father, but keeps in check the uncertain consequences of a current ongoing consciousness of those sins." Heller uses Faulkner to effectively discuss various attitudes short of intentional discrimination that might nevertheless have racially discriminatory results. These include lawmakers shame and denial of the past accompanied by a devotion to the "things have changed" mantra that would prevent perceptions of racially problematic actions. Additionally, "local control" possesses a nostalgic power, even as the era being evoked was one of white supremacy.
While Faulkner did not live to see the VRA Act become law, Joel Heller's engaging article is definitely worth a read as the Court considers Congressional power to remedy discrimination in the Old/New South.
[image of William Faulkner via]
February 27, 2013 in Books, Congressional Authority, Elections and Voting, Fifteenth Amendment, History, Race, Reconstruction Era Amendments, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack
February 25, 2013
Sotomayor Focuses on Prosecutor's "Racially Charged" Remark
Writing in a "Statement" accompanying the denial of certiorari in Calhoun v. United States today, Justice Sotomayor (joined by Justice Breyer) sought to "dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutor’s racially charged remark."
The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room. Eventually, the District Judge told the prose- cutor to move on. That is when the prosecutor asked, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?”
For Sotomayor, such prosecutorial argument threatens to violate the equal protection guarentee as well as the defendant's right to an impartial jury. She also castigated the government's original position on appeal that the prosecutor's argument was merely "impolitic," and agreed with a Fifth Circuit Judge who noted that the prosecutor's argument clearly "crossed the line."
But the unusual posture of the case - - - including issues preserved for appeal - - - meant that Sotomayor's Statement was a statement, and not a dissent from the denial of certiorari. But a strong statement it certainly was:
I hope never to see a case like this again.
February 23, 2013
Daily Read: Andrew Cohen in The Atlantic on Shelby and the Voting Rights Act
Entitled "After 50 Years, the Voting Rights Act's Biggest Threat: The Supreme Court," Andrew Cohen's extensive article just published in The Atlantic is a must-read for anyone following the Court's pending oral argument (on Wednesday, February 27) in Shelby County v. Holder.
Recall that the Court's grant of certiorari last November 9 put the Voting Rights Act (VRA) "in the crosshairs" of the Court - - - as we said at the time - - - noting that the VRA's constitutionality had been seriously questioned but ultimately evaded by the Court's 2009 decision in Northwest Utilities District of Austin v. Holder . The DC Circuit had upheld the constitutionality of the preclearance provisions of the VRA.
Andrew Cohen's article provides a terrific contextualize of the politics, including the Court's politics, that surround the constitutional controversy. Cohen writes that "racial polarization has intensified during the Obama Administration," with "'explicit anti-black attitudes'" around the country, "especially among Republicans," many of whom "sponsored and enacted some of the voter suppression laws of the 2012 cycle." Cohen also argues that the Court essentially "invited many of the state voter suppression efforts of the past three years" by its decisions, including not only Northwest Utilities District of Austin v. Holder, but also the 2008 decision in Crawford v. Marion County, upholding a voter identification statute. Cohen contends: "Having created the factual and legal conditions to undermine the federal law, the Court now is poised to say that it is weakened beyond repair."
Cohen concludes that the stakes in Shelby are very high:
If the Court strikes down Section 5 of the Voting Rights Act, this year especially, given the record of the past three years, the justices who do so will reveal a disconcerting level of disconnect from the realities of modern American politics as they were expressed in the near-unanimous renewal of the Act in 2006. And the partisan ruling they would issue in this circumstance would be even more brazenly ideological and untethered from precedent than the Citizens United ruling issued in January 2010.
Cohen's timely, provocative, and well-argued article is definitely worth a read and would be a great suggested reading for law students considering the issue.
February 23, 2013 in Courts and Judging, Current Affairs, Elections and Voting, Fifteenth Amendment, History, Interpretation, Race, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack
February 19, 2013
Daily Read: Heins on Academic Freedom
The First Amendment's relationship to what we call "academic freedom" can be fraught (here's one recent example), but in her compelling new book, Priests of Our Democracy Marjorie Heins provides doctrinal, historical, and political links between our understandings. Subtitled The Supreme Court, Academic Freedom, and the Anti-Communist Purges, the book takes as it centerpiece Keyishian v. Board of Regents (1967), a case that is oft-cited and just as often omitted from casebooks.
For ConLawProfs not teaching Keyishian - - - and this book will make you wonder why you are not - - - Heins' book illuminates important First Amendment doctrine and politics. Her history develops the parties, the lawyers, and the institutions involved in Keyishian with fascinating detail and readable prose. Her discussion of the larger anti-Communist "purges" is sharp and solid; it leads to considerations of the post 9/11 landscape.
And for ConLawProfs writing in the area, Heins' volume is an absolutely essential read.
February 14, 2013
Daily Read: Dworkin on Winn and Bennett (and more)
Writing in The New York Review of Books in 2011, the late Ronald Dworkin described two recently rendered United States Supreme Court cases as "embarrassingly bad." The cases were Arizona Christian School Tuition Organization v. Winn and the then-pending Arizona Free Enterprise Club PAC v. Bennett.
Both were 5-4 decisions and both continue to be controversial, although the Bennett is overshadowed by Citizens United.
Dworkin's article is worth a (re)read.
For those in a more reflective mood, the New York Review of Books has highlighted his 2011 essay "What is a Good Life?" Dworkin wrote:
We are charged to live well by the bare fact of our existence as self-conscious creatures with lives to lead. We are charged in the way we are charged by the value of anything entrusted to our care. It is important that we live well; not important just to us or to anyone else, but just important.
Dworkin's voice will be missed.
February 14, 2013 in Affirmative Action, Campaign Finance, Cases and Case Materials, Current Affairs, First Amendment, Religion, Speech, Standing, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack
January 31, 2013
Daily Read: Colbert on DOMA Arguments (and Cleburne)
Law students (and future law students) are watching this on The Colbert Report:
(h/t Chase Vine)
January 24, 2013
Daily Read: Goldberg on Article III Standing in Prop 8 and DOMA Cases
Suzanne Goldberg (pictured) argues that the proponents of Prop 8 and BLAG supporting DOMA have serious standing problems in her piece Article III Double-Dipping: Proposition 8’s Proponents, BLAG, and the Government’s Interest, available in draft on ssrn.
Recall yesterday we recommended Marty Lederman's extensive discussion of the Article III standing issues in Hollingsworth v. Perry (Perry v. Brown, "the Prop 8 case") and United States v Windsor ("the DOMA case"), it directed the parties to brief and argue the issues of Article III standing. This question of standing arises because both California, initially under Governor Schwarzenegger, then Governor Brown, and the United States, under the Obama Administration, have concluded that the constitutionality of the laws should not be defended (given their conclusion that the laws were unconstitutional). In the case of Prop 8, the trial proceeded with the intervenors, who lost. In the case of DOMA, the statute was defended by BLAG, the Bipartisan Legal Advisory Group of the United States House of Representatives, losing in the District Court and again at the Second Circuit.
Professor Goldberg contends that the Prop 8 proponents and BLAG are in a "Janus-faced" position: they purport to derive their Article III standing by asserting the governments’ interest in defending the challenged marriage laws, even as the governments in both cases, via their chief legal officers, have taken the position that excluding same-sex couples from marriage is unconstitutional. She argues that this inconsistency renders the concept of the government interest incoherent for Article III standing purposes. She further argues that the Prop 8 proponents and BLAG lack a direct stake in the litigation because they lack enforcement powers. If the Court were to reach the merits, it would essentially be issuing an advisory opinion.
Goldberg's essay is worth a read as a cogent argument for the lack of standing.
January 22, 2013
Scalia and Thomas More
Justice Scalia's appearance at President Obama's Inauguration yesterday has been much remarked because of the Justice's hat.
As ConLawProf Kevin Walsh reports, the hat was a gift from the St. Thomas More Society of Richmond, commemorating Scalia's participation in a 2010 "Red Mass" and is a replica of More's hat as portrayed in his famous portrait by Hans Holbein the Younger, 1527 (pictured right).
While Thomas More was celebrated in the play "A Man for All Seasons," a much less flattering portrait of him emerges in Hilary Mantel's award winning historical novel Wolf Hall, in which More is seen as distinctly unlawyerly, ungenerous, and perhaps pathological, especially as contrasted with the novel's hero, Thomas Cromwell.
As the late Christopher Hitchens noted, the genius of Wolf Hall wasin going beyond the Holbein portraits that defined the era, and revisioning, for example, the More portrait: "Now scrutinize the face of More and notice the frigid, snobbish fanaticism that holds his dignity in place." More, then, becomes a man who will not only burn books, but burn people. Hitchens also quotes Mantel's scene of the interrogation of More, after More has fallen out of favor. The character More says:
“You say you have the majority. I say I have it. You say Parliament is behind you, and I say all the angels and saints are behind me, and all the company of the Christian dead, for as many generations as there have been since the church of Christ was founded, one body, undivided—”
January 21, 2013
Carol Anne Bond Going Back to the Supreme Court
The Court granted certiorari Friday in Bond v. United States - - - again.
Recall that the first time the Court heard Carol Anne Bond's case, it held that she did indeed have standing to assert a Tenth Amendment argument against her charge for violating 18 U.S.C. § 229(a), enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement, the Chemical Weapons Convention, that prohibits nation-states from producing, stockpiling, or using chemical weapons. Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband. Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.
On remand, the Third Circuit held that the Chemical Weapons Convention "falls comfortably within the Treaty Power's traditional subject matter limitation" and thus the implementing Act is "within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power, unless it somehow goes beyond the Convention." While the Circuit did find the prosecution of Bond puzzling, there was also much puzzlement over the statement in Missouri v. Holland that “[i]f [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government."
It seems the Supreme Court is ready to clarify - - - or attempt to - - - Missouri v. Holland's famous statement.
[image of Methyldichloroarsine via]
January 14, 2013
Daily Read: Sotomayor on Sotomayor
Sonia Sotomayor's memoir, My Beloved World, is now out in the world.
Writing about the book in WaPo, Dahlia Lithwick states "It is nearly impossible to read “My Beloved World” without comparing it with the only other deeply personal autobiography by a sitting Supreme Court justice, Clarence Thomas’s 2007 memoir, “My Grandfather’s Son.” Lithwick's comparison demonstrates a wide gap between the two Justices' self-presentations.
Discussing the book for NPR, Court correspondent Nina Totenberg echoed the Thomas' comparison, saying:
Justice Clarence Thomas was the last member of the court to write a book that topped the list of national book sales, but while his vividly written autobiography sizzles with rage and resentment, Sotomayor's hums with hope and exhilaration.
And in the Boston Globe review, Jax Wexler also makes reference to Clarence Thomas:
Readers seeking insight into Sotomayor’s judicial philosophy or her positions on hot-button issues will be largely, though not entirely, disappointed. With the constitutionality of racial preferences on the court’s docket again this term, it is refreshing to hear the views of a justice who benefitted from affirmative action and who is not Clarence Thomas. In her memoir, Sotomayor eloquently defends preferences for creating “the conditions whereby students from disadvantaged backgrounds could be brought to the starting line of a race many were unaware was even being run.”
Yet these first reviews - - - and surely more will follow - - - also stress the literary quality of Sotomayor's prose as much as its empathetic message and remarkable content.
This looks like it will be an excellent read.