Friday, March 29, 2013
a law prof, hits precisely the right tones for those already acquainted with the material. Here's a bit from Milan's "truncated transcript":
SOTOMAYOR: So let me ask a real question. If marriage is a fundamental right, is the state ever allowed to limit it?
KENNEDY: Enough about gays and lesbians. Can we talk about me for a minute? Because I feel a little uncomfortable with this discussion. In fact, I’m kind of feeling like taking my swing-voting ball and going home. Who wants to dig the case?
[note: dig=acronym for Dismissed as Improvidently Granted]
OLSON: Uh. Kinda staggered here. You want to dig the case? We…we spent weeks preparing for this, the entire country is watching, millions of people could have their lives changed, and you want to dig the case?
KENNEDY: I’m just saying. Oh, Olson, you’re all out of time. Nice ending note, though.
Worth a read in its entirety.
[h/t Darren Rosenblum]
Thursday, March 28, 2013
The New York Court of Appeals today upheld a state statutory presumption that internet retailer "associates" operating within the state provide a sufficient nexus for the state to collect sales tax on the retailer's state sales. The ruling approves New York's end-run around the dormant Commerce Clause rule that a state can impose a sales tax on an out-of-state retailer only if the retailer has a physical presence--including economic activities by the retailer's employees, but not mere advertising.
With the rapid growth of internet sales across state lines, and with the last Supreme Court ruling on anything like this coming as far back as 1992 (on mail-order sales, of all things), this case may be a good candidate for high court review.
But on the other hand, the precise ruling in the case is rather limited. That's because the plaintiffs in the case pressed only their facial challenge at the Court of Appeals, not an as applied challenge. The problem here is that the statutory presumption can be rebutted, and an out-of-state retailer that can rebut it will also be exempt from it. This gives the presumption some wiggle room in certain cases and may be enough to protect out-of-state retailers against state sales taxes when they don't have sufficient business activity to constitute presence. The Court's ruling only says that the statutory presumption is not unconstitutional on its face. That's a far cry from saying that it's constitutional in every application.
The case, Overstock.com v. New York State Department of Taxation and Finance, tests New York's statutory presumption that an out-of-state internet retailer's in-state "associate" is soliciting business for the retailer:
a person making sales of tangible personal property or services taxable under this article ("seller") shall be presumed to be soliciting business through an independent contractor or other representative if the seller enters into an agreement with a resident of this state under which the resident, for a commission or other consideration, directly or indirectly refers potential customers, whether by a link on an internet website or otherwise, to the seller . . . .
New York Tax Law Sec. 1101(b)(8)(vi). The provision exactly describes Amazon's and Overstock.com's "associates"--local web-sites that include links to Amazon.com or Overstock.com and that receive a commission on each purchase through that link.
But neither Amazon nor Overstock.com has a physical presence in New York. And according to the Supreme Court in Quill Corp. v. North Dakota (1992), an out-of-state retailer like Amazon or Overstock.com has to have a physical presence in order for New York to impose a tax. (Quill Corp. involved an out-of-state mail order retailer. If you don't know what that is (!), click here.) Physical presence includes engaging in economic activities (like selling goods), but not advertising alone.
Enter the statutory presumption. The presumption says that Amazon's and Overstock.com's "associates"--those New York-based web-sites that contain a link to Amazon or Overstock.com, and receive a commission on each sale--establish a sufficient nexus between the out-of-state retailers and the state so that New York can impose its tax.
And the New York Court of Appeals OK'd it. The Court said that the retailers' associates were engaged in sufficient economic activity on behalf of the out-of-state retailers--business solicitation, and not mere advertising--to allow the state to tax.
Judge Smith dissented. He thought that the associates' links looked more like mere advertising, not business solicitation, and therefore weren't enough to establish a nexus between the retailers and the state.
The Court also rejected the retailers' due process claims, because the presumption is rational. The Court explained:
It is plainly rational to presume that, given the direct correlation between referrals and compensation, it is likely that residents will seek to increase their referrals by soliciting customers. More specifically, it is not unreasonable to presume that affiliated website owners residing in New York State will reach out to their New York friends, relatives, and other local individuals in order to accomplish this purpose.
In the oral argument for United States v. Windsor challenging the constitutionality of the Defense of Marriage Act, DOMA, Chief Justice Roberts expressed skepticism that gays and lesbians were politically powerless, announcing to Roberta Kaplan, representing Edith Windsor, "As far as I can tell, political figures are falling over themselves to endorse your side of the case."
ConLawProf Darren Hutchinson (pictured) provides an indepth examination, context, and prescient critique of Roberts' remark in his new article, Not Without Political Power': Gays and Lesbians, Equal Protection, and the Suspect Class Doctrine, available in draft on ssrn. Hutchinson argues that the political powerlessness factor used to evaluate claims for heightened scrutiny under equal protection doctrine is "especially undertheorized and contradictory."
Hutchinson's article is a tour de force of precedent deploying rhetoric of political powerlessness. Of course, Hutchinson highlights Justice Scalia's well-known dissent in Romer v. Evans, the Colorado Amendment 2 case, noting that not only is it based on stereotypes but it "sounds exactly like a political document against gay and lesbian rights." But Hutchinson does suggest that there is indeed a role for politics, however at a much more sophisticated level. Rather than jettison any inquiry into political powerlessness as some scholars have argued, Hutchinson contends that a much more robust understanding of politics is necessary.
Ultimately, Hutchinson concludes that the present scholarly and judicial discourse
fails adequately to discuss the multiple factors that cause political vulnerability among gays and lesbians. While some gays and lesbians possess power, most of them do not. Poverty, gender, race, geography, and disability influence the ability of gays and lesbians to exercise political power.
Instead, he suggests that political science scholarship inform legal scholarship and judicial opinions, and that antisubordination legal scholarship inform wider discussions of equal protection. Certainly, Hutchinson's article should inform anyone considering political powerlessness in the context of same-sex marriage and equal protection.
March 28, 2013 in Current Affairs, Equal Protection, Family, Fifth Amendment, Fourteenth Amendment, Gender, Interpretation, Profiles in Con Law Teaching, Reconstruction Era Amendments, Scholarship, Sexual Orientation, Sexuality, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 27, 2013
In the second of the same-sex marriage cases, after yesterday's Proposition 8 argument, the Court heard oral argument today in United States v. Windsor, a grant of certiorari to the Second Circuit opinion holding DOMA unconstitutional and applying intermediate scrutiny to sexual orientation classifications.
Edith Windsor (pictured) argues that DOMA - - - the Defense of Marriage Act - - -violates the equal protection component of the Fifth Amendment. Recall DOMA is not being defended by the Obama Administration, but by BLAG - the Bipartisan Legal Advisory Group - - - at taxpayer expense which reportedly topped $3 million even before today's arguments.
The extended two hour session had several attorneys arguing: LawProf Vicki Jackson, Court-appointed as amicus on the standing issue; Sri Srinivasan, Deputy Solictor General (supporting Windsor on the standing issue); Paul D. Clement on behalf of BLAG; Solicitor General Donald B. Verrilli (supporting Windsor); and Roberta A. Kaplan on Behalf of Windsor.
On the standing issue:
Similar to the Proposition 8 case argued yesterday, the fact that the government is not defending the constitutionality of the law raises a quetions about the Court's power under Article III to decide the issues.
Justice Kagan asked one of the most trenchant questions regarding standing and injury, especially given the Obama Administration's stated belief that DOMA is unconstitutional:
The Government is willing to pay that $300,000, would be happy to pay that $300,000, but whether the Government is happy or sad to pay that $300,000, the Government is still paying the $300,000, which in the usual set of circumstances is the classic Article III injury. Why isn't it here?
But Jackson answered that the federal government had not asked the Court to remedy that injury and that the Article III "case or controversy" requirement is "nested in an adversarial system."Throughout the arguments on standing there was a search for the most controlling precedent - - - with Justice Roberts' asking "is there any case where all the parties agreed with the decision below and we upheld appellate jurisdiction? Any case?" The general consensus seemed to be that Windsor was distinct from the most similar case, INS v.Chadha decided in 1983. (Chadha involved the legislative veto and produced a very fractured set of opinions on the merits). Justice Scalia had some barbs to throw at the present administration, contrasting it to when he was at the Office of Legal Counsel.
On the merits:
The challenge to DOMA is under the equal protection component of the Fifth Amendment, with the Solicitor General arguing that the standard to be applied is intermediate scrutiny and Kaplan arguing that DOMA failed even rational basis scrutiny. Yet the equal protection arguments were embroiled with the federalism and Congressional power to pass DOMA; Justice Kennedy stated that the federalism and equal protection issues were "intertwined." [A good example this intertwinement occurred in the First Circuit opinion that held DOMA unconstitutional.]
For Solicitor General Verrilli, the intertwinement aspect was a cause of consternation and undercut his argument yesterday in the Proposition 8 case that even a state law denying same-sex marriage violated equal protection and that the correct standard was intermediate scrutiny as the Second Circuit held.
The consistency principle of equal protection doctrine - - - that the same standard should apply no matter what classification was benefitted or burdened - - - was also a focus, with hypotheticals about the standard should Congress decide that it would provide federal benefits to same-sex couples even if the state did not recognize their marriages. [The question of who would have standing to challenge such a law did not arise].
Justice Roberts repeatedly brought up the question of animus as part of a rationality with bite inquiry, asking at least twice whether the 84 Senators who voted for DOMA and the President [Clinton] were motivated by animus. Justice Roberts also raised the question of political powerlessness, often an inquiry in determining the level of equal protection scrutiny. Roberts echoed an opinion expressed by Justice Scalia in earlier cases that sexual minorities were anything but politically powerless when he told Roberta Kaplan, representing Edith Windsor, "As far as I can tell, political figures are falling over themselves to endorse your side of the case."
Justice Ginsburg probably uttered the most memorable quote of the day's arguments. In her questioning of Paul Clement, who represented BLAG, she condensed his argument as saying that in granting same-sex marriages, states were nevertheless saying there were really "two kinds of marriage; the full marriage, and then this sort of skim milk marriage." Her remark would be even more noteworthy for people who recall that the scrutiny standard is often traced to the famous footnote 4 in Carolene Products, a case about - - - milk.
This is from the essay Toward a more perfect analysis, published in the SCOTUSBlog same-sex marriage sympoisum in September 2012:
The suggestions of clearly articulated standards and rigorous analysis are not simply the fantasies of a law professor. While Supreme Court opinions need not be constitutional law examination answers, neither should they be confusing, or marred by sarcasm or sentimentality. Students studying law should be exposed to more Supreme Court opinions demonstrating trenchant analysis rather than rhetorical politics.
Clearly articulated standards might also allow the lower federal courts as well as the state courts to engage in their own rigorous analysis rather than attempt to discern the correct standard from Supreme Court precedents that are unclear, internally inconsistent, or point in several directions. This is not to say that the same-sex marriage issue should have been easily resolved by lower courts or that the applications of the standard are not difficult and value-laden. However, the grappling of the lower courts for several years now regarding the actual holding of Romer v. Evans, as well as Loving v. Virginia, could have been avoided.
Regarding the suggested holdings in the Proposition 8 and DOMA cases, the Supreme Court’s clear conclusion that sexuality merits intermediate scrutiny review, like gender, would disentangle the equal protection doctrine from the animus inquiry. While certainly animus can be operative, the inquisition into intent invites protestations of moral belief or religious conviction. The false opposition between equality and morals needs to be abandoned. Additionally, the linking of sexual orientation and gender as quasi-suspect should lead courts to find classifications based upon gender identity, transgender identity, or gender nonconformity as similarly subject to intermediate scrutiny review. Additionally, the Supreme Court’s definitive holding that marriage is a fundamental right meriting strict scrutiny review would extricate the issues from the federalism quagmire.
March 27, 2013 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Gender, Interpretation | Permalink | Comments (0) | TrackBack (0)
Tuesday, March 26, 2013
The first of the two closely-watched same sex marriage cases to be argued before the United States this morning prompted much tweeting and predictions, as well as the promised early release of the audio by the Supreme Court itself.
As the oral arguments today made clear, at issue before the Court today in Hollingsworth v. Perry is the constitutionality of California's Proposition 8, held unconstitutional by a divided panel of the Ninth Circuit in Perry v. Brown.
The Standing Issue:
The first question during oral argument was from Chief Justice Roberts and directed the attention of Hollingsworth's counsel, Charles Cooper, to the "jurisdictional" issue - - - the question of whether Hollingsworth has standing. Recall that the original challenge to Proposition 8 named Governor Schwarzenegger, and later substituted Governor Brown, as defendants, but both governors and the State of California refused to defend the constitutionality of the voter initiative. Recall also that the California Supreme Court had answered a certified query about the interests of proponents of a Proposition under California law, but today's the questions from the bench stressed Article III of the United States Constitution.
Roberts' query was repeated to Theodore Olsen, arguing for the challengers to Proposition 8, and to Solicitor General Verrilli, who noted that the United States, as amicus, did not have a "formal position" on standing, but essentially echoed Justice Ginsburg's first question to Cooper, regarding whether the proponents of Proposition 8 had any "propriety interest" in the law distinct from other California citizens once the law had been passed.
On the Merits:
A central query on the merits is the level of scrutiny under equal protection doctrine that should be applied. Justice Kennedy asked Cooper whether it could be treated as a gender classification and stated "It's a difficult question that I've been trying to wrestle with it." Yet Cooper's argument in many ways deflects the level of scrutiny inquiry and Justice Kagan expressed it thusly:
Mr. Cooper, could I just understand your argument. In reading the briefs, it seems as though your principal argument is that same-sex and opposite -- opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State's principal interest in marriage is in regulating procreation. Is that basically correct?
Mr. Cooper agreed, and continued his argument, although Justice Scalia later tried to assist him:
JUSTICE SCALIA: Mr. Cooper, let me -- let me give you one -- one concrete thing. I don't know why you don't mention some concrete things. If you redefine marriage to include same-sex couples, you must -- you must permit adoption by same-sex couples, and there's - there's considerable disagreement among -- among sociologists as to what the consequences of raising a child in a -- in a single-sex family, whether that is harmful to the child or not. Some States do not -- do not permit adoption by same-sex couples for that reason.
JUSTICE GINSBURG: California -- no, California does.
JUSTICE SCALIA: I don't think we know the answer to that. Do you know the answer to that, whether it -- whether it harms or helps the child?
But given that Justice Kennedy is widely viewed as the "swing vote," his comments deserve special attention. During Cooper's argument, Kennedy focused on the children of same-sex couples in California:
JUSTICE KENNEDY: I -- I think there's - there's substantial -- that there's substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more. On the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?
But at other times, Kennedy expressed other concerns. During Theordore Olsen's argument, Kennedy stated
JUSTICE KENNEDY: The problem -- the problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there's a wonderful destination, it is a cliff. Whatever that was.
And soon thereafter, in perhaps what could be a possible avoidance of all the issues,
JUSTICE KENNEDY: But you're -- you're doing so in a -- in a case where the opinion is very narrow. Basically that once the State goes halfway, it has to go all the way or 70 percent of the way, and you're doing so in a case where there's a substantial question on - on standing. I just wonder if -- if the case was properly granted.
MR. OLSON: Oh, the case was certainly properly granted, Your Honor. I mean, there was a full trial of all of these issues. There was a 12-day trial, the judge insisted on evidence on all of these questions. This -- this is a -
JUSTICE KENNEDY: But that's not the issue the Ninth Circuit decided.
Could the Supreme Court merely declare that its grant of certiorari was "improvidently granted." It certainly wouldn't be the first time (or second) in very recent history. But in such a high profile case, it might further erode respect for the Court.
March 26, 2013 in Courts and Judging, Equal Protection, Family, Fourteenth Amendment, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, March 25, 2013
The critique of marriage as a legal institution may seem a bit churlish as the same-sex marriage cases go to the United States Supreme Court this week. It may seem as if there is universal agreement that marriage is "good" and the only question is whether governments can exclude same-sex couples from this "good."
Yet there is certainly a different way to conceptualize the issue. In Not the Marrying Kind, U.K. Law Professor Nicola Barker engages the issues from several perspectives. Importantly, her discussions do not portray the lesbian or larger LGBT communities as monolithically desiring marriage, but rather as critically engaged in questions of formal equality. She is scrupulous about presenting the complexities of opinions, theories, and strategies across several continents. Barker's book is a treat even readers who have been following these developments for years or are suffering from same-sex marriage fatigue.
I review Barker's book, as well as several other books on same-sex and opposite-sex marriage in an essay "Is Marriage Good for Women?" in this month's Women's Review of Books.
Barker's book is the best of the lot and essential reading for anyone seriously engaged in thinking about same-sex marriage.
Even as we await the United States Supreme Court's opinion on the constitutionality of a university's affirmative action plan in Fisher v. University of Texas argued October 10, it has become clear that Fisher will not be the Court's last affirmative action case.
Today, the Court granted a petition for certiorari in Schuette v. Coalition to Defend Affirmative Action to the Sixth Circuit's en banc decision in Coalition to Defend Affirmative Action v. Regents of the University of Michigan decided last November. Recall that the Sixth Circuit majority held Michigan's anti-affirmative action constitutional amendment, passed in 2006 as a ballot initiative Proposal 2, unconstitutional.
The en banc Sixth Circuit was seriously fractured, but none of the opinions considered the Court's affirmative action cases of Grutter and Gratz (or the pending case of Fisher). Instead, the relevant doctrine was the so-called "political process" aspect of the Equal Protection Clause which asks whether a majority may vote to amend its constitution to limit the rights of a minority to seek relief? This underlying problem is similar to some of the arguments in the Proposition 8 case - - - Hollingsworth v. Perry - - - to be argued before the Supreme Court tomorrow, March 26, and certainly resonates with the Ninth Circuit's reasoning in Perry finding that Prop 8 was unconstitutional.
In the case of Michigan's Prop 2, the Sixth Circuit majority found it troublesome that only as to racial classifications in university admissions would a person seeking to change policy have to amend the state constitution, as contrasted to other classifications that could be changed by various other means, including simply persuading an admissions committee.
As to what the Court's grant of certiorari in Coalition to Save Affirmative Action might mean for Fisher, reading the "tea leaves" is difficult. As we observed when the Sixth Circuit decided Coalition to Save Affirmative Action, a very broad approach in Fisher - - - such as a declaration that all racial affirmative action policies in education were per se unconstitutional - - - would seriously undermine the rationale of the Sixth Circuit opinion. However, a grant of certiorari in Coalition to Save Affirmative Action does not mean that Fisher will be narrow or that it will uphold the University of Texas' affirmative action plan.
And one additional "wrinkle": Justice Kagan is recused in Coalition to Save Affirmative Action.
[image Affirmative Action demonstration in 2003, via]
Friday, March 22, 2013
The Obama Administration has given us just a glimpse of its legal analysis authorizing its use of drone attacks on U.S. citizens in a foreign country outside the zone of active hostilities. And that mere glimpse contains a telling, and deeply troubling, reference to an earlier episode, Nixon's bombing of Cambodia, writes Professor Mary Dudziak (Emory), author of War Time: An Idea, Its History, Its Consequences, in the NYT.
Dudziak points to a citation to a 1970 speech by Department of State Legal Adviser John R. Stevenson in the recently released "white paper" setting out the administration's legal justification for drone attacks. In that speech, Stevenson argued that the U.S. had authority to take military action in Cambodia in self-defense against North Vietnamese attacks from that country. Dudziak explains:
Since 1965, "the territory of Cambodia has been used by North Vietnam as a base of military operations," [Stevenson] told the New York City Bar Association. "It long ago reached a level that would have justified us in taking appropriate measures of self-defense on the territory of Cambodia. However, except for scattered instances of returning fire across the border, we refrained until April from taking such action in Cambodia."
But there was a problem:
In fact, Nixon had begun his secret bombing of Cambodia more than a year earlier. (It is not clear whether Mr. Stevenson knew this.) So the Obama administration's lawyers have cited a statement that was patently false.
Here's the full paragraph from page 4 of the white paper:
The Department has not found any authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location cannot be part of the original armed conflict, and thus subject to the laws of war governing that conflict, unless the hostilities become sufficiently intense and protracted in the new location. That does not appear to be the rule of the historical practice, for example, even in a traditional international conflict [i.e., a conflict between nations]. See John R. Stevenson, Legal Adviser, Department of State, United States Military Action in Cambodia: Questions of International Law, Address before the Hammarskjold Forum of the Association of the Bar of the City of New York (May 28, 1970), in 3 The Vietnam War and International Law: The Widening Context 23, 28-30 (Richard A. Falk, ed. 1972) (arguing that in an international armed conflict, if a neutral state has been unable for any reason to prevent violations of its neutrality by the troops of one belligerent using its territory as a base of operations, the other belligerent has historically been justified in attacking those enemy forces in that state). Particularly in a non-international armed conflict, where terrorist organizations may move their base of operations from one country to another, the determination of whether a particular operation would be part of an ongoing armed conflict would require consideration of the particular facts and circumstances in each case, including the fact that transnational non-state organizations such as al-Qa'ida have no single site serving as their base of operations. [Citation omitted.]
Dudziak argues that the citation to Nixon's bombing of Cambodia illustrates a problem, instead of providing a precedent:
The Cambodia bombing, far from providing a valuable precedent for today's counterterrorism campaign, illustrates the trouble with secrecy: It doesn't work. If Nixon had gone to Congress or announced the plan publicly, the historian Jeffrey P. Kimball has written, "there would have been an uproad." But disclosure was ultimately forced upon him when he decided to send ground troops into Cambodia. A new wave of giant antiwar protests erupted, and Nixon's ability to take further aggressive action became infeasible.
She writes that we expect more, and deserve more, of President Obama.
A state judge ruled that a Lousiana statute that criminalizes gun possession by felons violated the state's new and enanced right to bear arms, according to the Times-Picayune. The judge ruled the criminal ban unconstitutional and dismissed the felon possession charge against the defendant in the case. The ruling will go directly to the state supreme court.
Louisiana voters last year overwhelmingly passed a proposed state constitutional amendment, Proposed Amendment 2, that made "the right to keep and bear arms . . . fundamental" and explicitly provided for strict scrutiny review of any restriction of that right. The amendment also did away with previous language that permitted the state to prohibit the carrying of a concealed weapon. Here's the Lousiana SOS backgrounder; here are the ballot measures.
Under the new amendment, courts faced with a restriction on "the right to keep and bear arms" must apply strict scrutiny review. According to Judge Darryl Derbigny, Louisiana's statute criminalizing felon possession of guns just didn't cut it.
Thursday, March 21, 2013
The Supreme Court heard oral arguments earlier this week in Mutual Pharmaceutical v. Bartlett, a case testing whether the federal Food, Drug, and Cosmetic Act (and in particular the Hatch-Waxman Act) preempts a state design-defect claim against a generic drug manufacturer.
The case is important because of the large and increasing role that more affordable generics play in the prescription drug market. But as Justice Kagan pointed out early in the argument, the case may also affect branded drugs. That's because both branded and generics need to get FDA approval for new or changed formulas, and yet they both could be subject to state-law design-defect claims, as in this case. If so, depending on the nature of the state law claim, the state court ruling could set a different standard than the FDA standard--making it impossible for a manufacturer, branded or generic, to comply with both. But again: that depends on the nature of the state-law claim.
Recall that the Court just two years ago ruled in PLIVA v. Mensing that the FDCA did preempt a state failure-to-warn claim against a generic manufacturer. The reason: Under the FDA's process for generic approval (under Hatch-Waxman), a generic has to bear the same label as its branded counterpart. Under the federal FDCA, the generic has no control over the label, and so the Court said that it can't be held to a higher labeling requirement under state tort law. In other words, the requirement under federal law (to bear the same label as its branded counterpart) conflicted with duties set by the state tort suit (to include different warnings).
But that was a failure-to-warn claim. Bartlett involves a design-defect claim, going to the generic's design, not (or maybe not) its label.
Still, the label was one sticking point, maybe the most important sticking point, at argument this week. The justices struggled to figure out whether the plaintiff's design-defect claim turned at all on faulty labeling. (If it did, the case would more likely be governed by Mensing, and the claim more likely to be preempted.) The plaintiff argued that the trial court judge carefully distinguished between considering the label for its adequacy as opposed to its effectiveness. According to the plaintiff, the judge ruled out the former consideration, because the defendants waived a defense that would have turned on adequacy. Moreover, according to the plaintiff, the label's effectiveness goes to limiting the danger of an inherently dangerous drug--and is therefore not a consideration of labeling in its own right, but rather a consideration of labeling as related to a pure design-defect claim. It's not clear that the Court bought this distinction, however, and the defendant argued strenuously against it.
Another and related sticking point was the nature of the state design-defect claim. Was it a pure strict liability claim, in which the plaintiff simply received compensation for injuries resulting from an inherently dangerous drug? If so, the claim operated more like a drug compensation fund, and even the defendant said there was no preemption. That's because the defendant could comply with both the federal requirements for generics and the state duty to pay. Stated differently, the state tort suit wouldn't set a new standard of care; instead, it would simply require compensation. But if the label was relevant to the design-defect claim--and if, as the Court held in Mensing, the defendant had no control over the label--the state tort suit could be understood as setting a new standard (in the same way the failure-to-warn claim did in Mensing)--and the FDCA would preempt.
Yet another sticking point was the FDA approval process as opposed to the process of state-court juries. The FDA puts new drugs through a rigorous ringer to weigh the costs and benefits before approval. But state court juries grant damage awards based on the judgments of a handful of lay individuals. The question is: If the FDA approves a drug and thus its counterpart generic--based on thorough and expert cost-benefits analyses--why should a state court lay jury be able to second-guess and even overrule it?
The Court divided 5-4, along conventional ideological lines, in Mensing. That seems like a plausible, even likely, result here, too.
Daily Read: US v. Windsor, the DOMA Case, Amicus Brief Cato Institute and Constitutional Accountability Center
Fourth in a Series: Guest Post by Allison Reddy, City University of New York (CUNY) School of Law, class of 2014
The brief of amici curiae of Cato Institute and Constitutional Accountability Center supports the position of Edith Windsor and argues for affirming the Second Circuit opinion. The Cato Institute is a think tank dedicated to public policy research furthering “the principles of individual liberty, limited government, free markets and peace.” The challenge to DOMA is consistent with CATO's philosophy of limited governmental interference in issues of personal freedom, especially on the part of the federal government. The Constitutional Accountability Center, also a think tank, is dedicated to "fulfilling the progressive promise of our Constitution’s text and history." While the two organizations might differ on controversial cases such as Citizens United, here the organizations agree that DOMA should be held unconstitutional.
Interestingly, the brief does not use the umbrella argument technique and instead jumps right into the arguments, first discussing the equal protection guarantee embodied in the Fifth Amendment. According to their argument, the Constitution protects individuals, not groups, from “lawless action by the government.” The amicus continues to quote Justice Kennedy’s concurring opinion in JEB v. Alabama, which focused on the fact that individuality rises above association with a particular class. Therefore, any law designed to make individuals inferior under the law because of membership in a class is inherently odious. The argument progresses to discuss the plain meaning of the equal protection clause, which requires “equality under the law and equality of rights for all persons.” Citing the Civil Rights Cases, Yick Wo, and Justice Harlan’s dissent in Plessy v. Ferguson, the brief makes a forceful case for the prohibition of class legislation. Framing DOMA as discrimination against gays and lesbians and denial of their right to “ordinary civic life in a free society” (Romer), the principles and case law undergirding equal protection require that DOMA be overturned.
The brief discusses the history of heightened scrutiny, both strict and intermediate. It supports the Second Circuit’s conclusion that intermediate scrutiny is appropriate. It argues, however, that the Court need not even reach a heightened scrutiny analysis, because DOMA fails even the most deferential rational basis review. However, without acknowledging the perhaps more “searching” scrutiny these cases apply, the brief uses Romer, Moreno, and Cleburne to support its conclusion. It does note that rational basis review, although deferential, “has never entailed judicial abdication in the face of arbitrary, invidious discrimination inconsistent with the equal protection guarantee,” citing Nat’l Fed’n of Independent Business v. Sebelius in support of this proposition. Accordingly, the Court should not abdicate its responsibility to protect gays and lesbians from DOMA’s discriminatory effects.
The brief further argues that because DOMA discriminates against gays in lesbians in almost every aspect of their lives, it violates the basic guarantee of equal protection under the law. DOMA was not a rational solution to a legitimate federal problem because it was obviously enacted in the spirit of animosity towards gays and lesbians, aiming to make them unequal to everyone else. Quoting the legislative history, the brief points out that “federal legislators sought to ‘express their disapprobation through the law,’ 142 Cong. Rec. 17,089 (1996), asserting that same-sex couples were ‘immoral, depraved,’ ‘unnatural,’ ‘based on perversion,’ and ‘an attack on God’s principles.’ Id. at 16,972, 17,074, 17, 082.” The brief goes on to eviscerate the rational bases proffered by BLAG in much the same manner as the Southern District, First Circuit, and Second Circuit.
This amicus brief reads much more forcefully than the Government’s brief. The way that this amicus brief essentially frames Romer, Cleburne, and Moreno as ordinary rational basis cases mirrors BLAG’s framing of those cases—except to support the opposite argument. At first blush, not acknowledging the more “searching” standard in these cases seemed glaring; however, this was obviously an intentional choice to construe these cases as minimally scrutinizing to support a finding that DOMA would fail even the most permissive review.
Moreover, by invoking the plain meaning of equal protection, this brief dispensed with the legal formalism. It argued that couching the arguments over DOMA in the language of federalism is a disingenuous approach to the issue and urges the Court reject BLAG's construction and confront DOMA in a forthright manner.
[posted and edited by RR]
Wednesday, March 20, 2013
The Supreme Court ruled today that a state can't automatically take a set portion of a Medicaid recipient's medical malpractice damage award in order to recoup medical expenses that it already paid. The ruling still allows states to recoup medical expenses from Medicaid recipients' malpractice damage awards, but they can't do it by setting an arbitrary fixed portion of a damage award; instead, they have to do it case-by-case, with more precision.
The ruling is a victory for Medicaid recipients who recieve malpractice awards. It means that states can't try to take more than their fair share of an award in an effort to achieve administrative efficiency (in determining the amount of actual medical expenses paid).
The case, Wos v. EMA, arose after the parents of minor EMA sued doctors and others for medical expenses, other expenses, and pain and suffering resulting from serious and permanent injuries that EMA suffered at birth. The parties settled for $2.8 million, but did not designate a portion of the settlement as reimbursement for medical expenses.
Because EMA received a portion of her medical care through North Carolina's Medicaid program, the state sought to recoup medical expenses it paid through Medicaid. North Carolina's statute says that up to one-third of any damages recovered by a beneficiary for a tortious injury be paid to the state to reimburse it for payments it made for medical treatment on account of the injury. The North Carolina Supreme Court ruled that the one-third portion was "a reasonable method for determining the State's medical reimbursements." This interpretation could allow the state to collect less than its past medical expenditures, if those expenditures exceeded one-third of the total recovery. But it also could allow the state to collect more than its past medical expenses, if, as here, those expenditures were less than one-third of the recovery.
The federal Medicaid Act allows, indeed requires, a state to recoup medical expenses from a Medicaid recipient's damage award. But the Act's anti-lien provision preempts a state's effort to take any portion of an award not "designated as payment for medical care."
The problem of determining reimbursable expenses is most acute when, as here, a settlement doesn't designate the portion attributable to medical expenses. In that case, as in this case, the state uses the one-third portion as a default--and recoups (at least potentially) more than its actual medical expenses. (Here the state court that approved the settlement set aside one-third of the settlement in escrow for payment to the state "until such time as the actual amount of the lien owed by [EMA] to [the state] is conclusively judicially determined." EMA's parents then sued in federal court. While the suit was pending, the North Carolina Supreme Court ruled that the one-third portion was "a reasonable method for determining the State's medical reimbursements.")
The Court ruled that the federal anti-lien provision preempted North Carolina's statute. Justice Kennedy wrote the opinion, joined by Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan. He said that North Carolina's one-third figure conflicted with the anti-lien provision, because it allowed the state to recoup more than its actual medical expenses, even when those expenses were designated as part of the award:
North Carolina's statute, however, operates to allow the State to take one-third of the total recovery, even if a proper stipulation or judgment attributes a smaller percentage to medical expenses.
Op. at 9-10.
Justice Kennedy said that North Carolina gave no limiting principle, and by its reckoning it could have set a much higher portion as its default--thus recouping much more than actual medical expenses paid.
Justice Breyer concurred, emphasizing that the Centers for Medicare & Medicaid reached the same conclusion as the Court--and that the Court owed some deference to the Centers' judgment. Justice Breyer also said that the Centers could change their position, and that the Court's "decision does not freeze the Court's present interpretation of the statute permanently into law."
Chief Justice Roberts dissented, joined by Justices Scalia and Thomas. Chief Justice Roberts said that the federal Medicaid Act doesn't specify how states must determine actual medical expenses, even though it requires them to recoup those expenses. In particular, he said that the Act doesn't specify a case-by-case, after-the-fact determination, as the majority does here; instead, it's flexible enough to allow states to adopt different approaches (like North Carolina's). Chief Justice Roberts would leave it up to the Centers and the states to experiment with different ways of determining actual medical expenses.
Third in a Series: Guest Post by Versely Rosales, City University of New York (CUNY) School of Law, class of 2014
The brief submitted by 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 supports the position of BLAG arguing for the constitutionality of DOMA.
The brief argues that rational basis review is the proper standard for evaluating legislation, like DOMA, that implicates questions of values, culture, and policy. The brief also argues that “moral and religious views voiced in support of DOMA do not detract from its validity.”
The rational basis argument:
This amicus brief first argues that rational basis governs because what is at issue in DOMA “is not a discrimination against a discrete and insular minority.” Instead, the issue is a “profound culture debate over the nature and meaning of marriage.” Further, because “homosexuals” have political power, they do not need extraordinary judicial protection from majoritarian interests. Thus, they can rely on the democratic political processes to engage in a debate over values, morals, judgments, and culture. Therefore, rational basis review is the only standard that allows for spirited democratic debate over the different visions of marriage that should prevail in the federal government. By applying anything other than rational basis, the Court would deprive the public of this debate. In particular, it would deny faith communities, who have a “long experience in these matters” and “unique perspectives,” to be heard by democratic decision makers.
Thus, the brief contends that the Second Circuit’s conclusion that Section 3 of DOMA is unconstitutional stands on a “rickety foundation.” The Second Circuit is faulted for “creat[ing] the first new protected class in 35 years,” and being contrary to every federal court of appeals that has addressed the question. Further, this amicus brief notes several other reasons why heightened scrutiny is “plainly improper in this case.” First, heightened-scrutiny jurisprudence contains a strong presumption against creating new suspect classes as courts should be very reluctant to closely scrutinize legislative choices. Secondly, the Constitution presumes that unjust discrimination will be remedied through the ordinary democratic process. Thirdly, the Supreme Court’s refusal to recognize any new suspect classes confirms the necessity of a very cautious approach into sensitive areas.
The amicus brief of these religious organizations criticizes the Second Circuit opinion for failing to recognize that rational basis review is the proper standard of review for preserving the primacy of the democratic process in cases turning on fundamental issues of public policy, culture, and morality. DOMA is argued to be within this category because it has become monumental cultural conflict between two major visions of marriage: traditional marriage which is centered on procreating and raising children; and the more recent, genderless, adult-orientated notion where procreation and childrearing are not central to marriage’s meaning. The traditional marriage concept has deep roots and provides a mechanism for coping with the reality that sex between men and women generally results in pregnancy and childbirth. And, whether proven or not, it is reasonable to accept that children born from opposite-sex married relationships will benefit by being raised by two parents within long-term relationships. In addition, lawmakers cannot and should not rely on social science scholars on the effects of sexual minorities parenting children because, in part, such opinions are inherently tentative and often laden with value-based assumptions. Thus, lawmakers should be allowed to use their judgments and own experience, which have led them to believe that traditional marriage and family structure deserve distinctive legal protections.
The amicus brief also points out while the Court has never adopted “the genderless, adult-centered definition of marriage,” it has “long endorsed the strong legislative preference for man-woman marriage as the foundation of our society.” Given this historical preference, the Court should construe DOMA as a rational preference for the tried and familiar over the untried and novel.
The moral and religious views argument:
The second main argument of this amicus brief contends “moral and religious views voiced in support of DOMA do not detract from its validity.” Congress identified “defending traditional notions of morality” as one of the four “governmental interests” for the enactment of DOMA. The brief argues that Congress recognized that the issue of marriage has moral or religious aspects for many Americans and that cannot be divorced from the practicalities. Lawmakers have the right to protect this valued moral norm, and when they do so, it should not be labeled as invalid just because it happens to coincide with the tenets of some - - -or all - - - religions. To declare DOMA void merely because it adheres to traditional moral and religious belief would fly in the face of this Court’s ruling that the Constitution does not allow the government to treat religion and those who practice or teach it as being subversive to American ideals and therefore subject them to unique disabilities. “By scrutinizing a law reflecting, in part, religious values more severely than others, courts would effectively target such beliefs or religious support for unusual burdens or penalties.”
Interestingly, the brief ultimately argues that to subject DOMA to heightened scrutiny simply because of its “affiliation with traditional morality would raise First Amendment concerns.”
Contribution of the Brief:
This amicus brief supports the position of BLAG that DOMA is unconstitutional. But although BLAG agrees that traditional marriage coincides with religious sections of the citizenry, it does not emphasize the moral aspect of DOMA in its brief.
The Government brief does not agree with the assertion that what is at issue is a cultural debate. The Government clearly argues in its brief that DOMA is based on discrimination and it affects the distribution of benefits to a sub-section of society. The Government also disagrees with the Amicus brief’s most basic contention: Homosexuals are not a discrete and insular minority deserving of heightened scrutiny.
The argument that the First Amendment is relevant is unique; it is not shared by BLAG or the Government.
[posted and edited by RR]
March 20, 2013 in Current Affairs, Equal Protection, Family, Fifth Amendment, First Amendment, Free Exercise Clause, Fundamental Rights, Gender, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, March 19, 2013
Judge Susan Illston (N.D. Cal.) ruled last week in In Re National Security Letter that the nondisclosure and judicial review provisions of the National Security Letter Statute violated free speech. But she stayed the ruling pending Ninth Circuit review.
National Security Letters are those statutory inventions that require a wire or electronic communication service provider to turn over specified categories of subscriber information if the FBI certifies that the records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities. The statute also prohibits an NSL recipient from disclosing the NSL, so long as the FBI certifies that disclosure could threaten national security. (This is the nondisclosure provision.) Finally, it provides for judicial review NSLs and nondisclosure orders, but puts a thumb on the scale in favor of the government in review. (This is the judicial review provision.)
Judge Illston ruled that the nondisclosure provision "clearly restrains speech of a particular content--significantly, speech about government conduct," even if it is not a "classic prior restraint" or a "typical" content-based restriction on speech. As such, she ruled, the provision is subject to the Freedman v. Maryland safeguards--that a restraint prior to judicial review can be imposed only for a specific period, that expeditious judicial review of the decision must be available, and that the government must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court.
But Judge Illston said that the nondisclosure provision didn't meet those safeguards, in particular, it didn't provide that the government had to initiate judicial review and bear the burden of proof. Moreover, she ruled that it swept too broadly, prohibiting recipients from disclosing even the mere fact of their receipt of an NSL.
As to judicial review, Judge Illston wrote that "the statute impermissibly attempts to circumscribe a court's ability to review the necessity of nondisclosure orders," by limiting how a court might set aside an NSL.
Judge Illston concluded that there was no way to read the nondisclosure provision to save it, and thtat it was not severable from the rest of the act. But she stayed her ruling pending Ninth Circuit consideration of the case.
Zimbabweans voted overwhelmingly this weekend to approve a new draft constitution. Ninety-five percent of voters cast a ballot in favor, according to the Washington Post and others. We posted earlier here.
Now the document goes to Parliament and the president for approval and signature--ceremonial steps that'll take another 30 days or so.
The text is available here, at COPAC's web-site.
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]
Monday, March 18, 2013
The Supreme Court heard oral arguments today in Arizona v. Inter Tribal Council of Arizona, the case testing whether the federal National Voter Registration Act preempts Arizona's requirement that voter applicants show additional proof of citizenship in order to register to vote. We posted a preview here.
If the questions from the bench are any indication, this could be a very close one. Justice Sotomayor and Kagan seemed to line up squarely behind the respondents (and against Arizona's proof-of-citizenship requirement). Justices Ginsburg and Breyer did too, but perhaps a little less forcefully. On the other side, Justice Scalia seemed set with Arizona on the merits (focusing on the NVRA text), but he wondered why the state didn't challenge the EAC's rejection of its state-specific proof-of-citizenship requirements earlier, right after the EAC rejected them. Chief Justice Roberts and Justice Alito seemed to lean toward Arizona, too, largely for pragmatic reasons, suggesting that the NVRA scheme wouldn't make a lot of sense by the respondent's reading. Justice Kennedy seemed concerned that Arizona's position could destroy the "utility of the single form" (on the one hand), but also that the Ninth Circuit applied a preemption test under the Elections Clause that was too federal friendly (on the other).
The Justices were concerned about everything from legislative purpose behind the NVRA, to legislative language, to the role of the EAC (the administrative agency that approves the federal form and state-specific additions to it), to Arizona's failure to challenge the EAC's rejection of its state-specific citizenship requirements. The standard for Elections Clause preemption (as opposed to more ordinary Supremacy Clause preemption) got very little attention (notably just from Justice Kennedy).
Justices Sotomayor and Kagan seemed to be the most active and skeptical in questioning Arizona's attorney. They asked whether Arizona's additional citizenship requirements wouldn't undermine the purpose of the NVRA, to ease and simplify voter registration; whether Arizona is actually accepting and using the federal form (as required by the NVRA), especially when it apparently rejects mail-in ballots that don't satisfy Arizona's extra citizenship requirements; and whether Arizona's position would make the federal form "just another hoop to jump through." (Those were Justice Kagan's words. Justice Kennedy earlier suggested a similar sentiment--"But otherwise, the whole utility of the single form is missing--is gone"--but framed it as a question about what opposing counsel would argue.)
Justice Breyer wanted to know how Arizona accepted and used the federal form's attestation-under-perjury requirement, again, as required by the NVRA, suggesting that Arizona wasn't accepting and using it, and therefore not complying with the NVRA.
Justice Scalia asked why Arizona didn't challenge the EAC's rejection of its state-specific citizenship requirements earlier--after the EAC rejection, and not now, only after voters challenged Arizona's requirements.
On the other side, Justice Alito wondered how the federal form alone could ensure that an applicant was qualified--giving an example of a minor who completed and signed the form--suggesting that the federal form alone wasn't sufficient. Justice Scalia looked to the language of the NVRA--states "may require only"--and argued that the "may" made it permissive--and that state's therefore could add requirements. Chief Justice Roberts and Justice Alito wondered whether under the respondent's reading and the government's reading the NVRA wouldn't create an unworkable system, with the possibility of a state-form voter registration list and a federal-form voter registration list in each state.
Chief Justice Roberts asked whether the respondent's reliance on the EAC's decision to reject Arizona's request to include its citizenship requirement wasn't undermined by the EAC's bad decision (according to respondent) allowing Louisiana to supplement the requirements on the federal form. (Arizona first raised Louisiana's state-specific requirement, approved by the EAC, to include a driver's license number or Social Security number or, if neither is available, to attach certain other documents as an argument that a requirement for additional documents does not violate the NVRA. The Court spent some time trying to figure out if the parties thought this was a good decision, and, if so, why Louisiana's requirement is the same or different than Arizona's.)
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]
Sunday, March 17, 2013
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.