Sunday, May 17, 2015

Judges Dialing for Dollars? Supreme Court Says No

      The Supreme Court’s decision to uphold ethics rules prohibiting judicial candidates from directly soliciting campaign contributions is easy to minimize. But the ruling in Williams-Yulee v. Florida Bar [April 29], surprisingly written by Chief Justice John G. Roberts Jr., should not be dismissed as inconsequential because the alternative would have made judicial elections much worse than they already are.
      Imagine judges and would-be judges in 39 judicial election states dialing for dollars unencumbered by ethical prohibitions and encouraged to view the practice as a constitutional right. The Supreme Court’s actual decision instead upheld Florida’s rule, akin to those on the books in 29 other states, that bars judges or judicial candidates from personally asking for money to run their campaigns.
      Two other states, Georgia and Kentucky, had adopted such bans but they had been struck down by federal appeals courts, in 2002 and 2010 respectively. The Kentucky Supreme Court reinstated its ban one week after the ruling [May 6], but the head of Georgia’s Judicial Qualifications Commission said there were no immediate plans to revive its former rule. The Supreme Court’s ruling dispels doubts about the rule and might stimulate interest in other judicial election states to consider adopting it.
      The actual impact of the bans is easy to play down. The rules uniformly ban direct solicitations but allow a judge or judicial candidate to create a campaign committee to solicit and manage campaign funds and to solicit expressions of support from lawyers.
      Florida’s interpretation of the rule, the justices were told, also allows a judicial candidate to provide a list of prospective donors to the campaign committee and to write thank-you notes to donors afterward. “There’s a problem that judges can say thank you but not please,” says Jed Shugerman, an associate professor at Fordham University School of Law in New York City and author of The People’s Courts: Pursuing Judicial Independence in America.
      More broadly, the case did not address at all the issue of the rising cost of judicial campaigns and the spending by special-interest groups, especially business interests and anti-crime organizations. In a friend-of-the-court brief, the Brennan Center for Justice at New York University Law School reported that spending solely on state supreme court races had more than doubled from $83 million in 1990-99 to $230 million in the succeeding decade: 2000-2009.
      “The case was never about spending,” said Ernest Myers, the Orlando lawyer who represented the reprimanded, unsuccessful judicial candidate Lanell Williams-Yulee in the case. “Judicial candidates are free to raise as much money as they can possibly raise.”
      Indeed, Roberts said nothing about the overall cost of judicial campaigns in his opinion, which was joined in full by liberal justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan and in part by Ruth Bader Ginsburg. But Ginsburg wrote a partial concurrence, joined by Breyer, with an ominous warning. “Disproportionate spending to influence court judgments threatens both the appearance and actuality of judicial independence,” she wrote.
      The bans on judicial candidates’ fundraising stem from a provision that the American Bar Association included in its Model Code of Judicial Conduct in 1971. The bans represent the third twentieth-century imitative to try to depoliticize judicial races somewhat. Early in the century, the progressives pushed nonpartisan elections for judicial races, the practice in Florida and just under half of the other election states. In the 1930s, bar and judicial reform groups pushed the so-called Missouri plan, which combines merit selection followed by yes-no retention elections.
      The Missouri plan, widely adopted for appellate and supreme court justices, has not succeeded in protecting them from political attack. Law-and-order campaigns ousted three California Supreme Court justices in 1986 and one Tennessee justice in 1996; three Iowa justices who voted to recognize same-sex marriage in 2009 were defeated the next year.
      Shugerman acknowledges the problems with money in judicial elections. “You can argue that judicial elections are so corrupting that any of these measures just puts a fa├žade on them,” he says. Still, he applauds the Supreme Court’s ruling. “It recognizes that judges are different from other public officials and that the appearance of impartiality is a compelling public interest,” he says.
      In oral argument, Roberts had appeared to be a likely vote to strike down the rule after questioning the rule as both overly broad and somewhat ineffective. In his opinion, however, Roberts appears to have been swayed by arguments like those raised by Breyer and Sotomayor that lawyers solicited for funds from a judicial candidate have a very hard time saying no.
       “The identity of the solicitor matters as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest,” Roberts wrote. “When the judicial candidate himself asks for money the stakes are higher for all involved.”
      Gregory Coleman, a West Palm Beach lawyer about to complete his one-year term as Florida Bar president, dismissed the criticism that judicial candidates eventually learn the names of donors anyway. “The flip side is that the judge doesn’t know who doesn’t contribute,” he explains. 
      Coleman says that direct fundraising by judges or would-be judges “is distasteful, unacceptable, and intolerable.” Most states had come to that conclusion even while retaining judicial elections. The Supreme Court could have made the system more distasteful. Be grateful for the 5-4 favor that it did not.

Sunday, May 10, 2015

Religious Liberty as 'Refuge' for Marriage Equality Foes

      Patriotism is the last refuge of a scoundrel, Samuel Johnson once wisely observed. Today, in like vein, religious liberty has become the last refuge of those who oppose marriage rights for gay and lesbian couples.
      The “scoundrels” on this issue include an array of public officials and opponents of same-sex marriage up to and including Supreme Court Justice Antonin Scalia. Scalia made the implausible suggestion in Supreme Court arguments in the same-sex marriage cases that clergy members might be forced to officiate at gay or lesbian weddings despite religious objections.
      “The minister, to the extent he’s conducting a civil marriage, is an instrument of the state,” Scalia remarked in a colloquy with the lawyer representing same-sex couples in the cases. “I don’t see how you could possibly allow that minister to say, ‘I will only marry a man and a woman. I will not marry two men.’”
      The government’s only solution, Scalia suggested, was to deny any objecting clergy the power to perform civil marriages at all. “I don’t see any answer to that,” Scalia concluded. “I really don’t.”
      Three of Scalia’s colleagues batted down the suggestion through their own colloquies with attorney Mary Bonauto. Justice Sonia Sotomayor noted that some states already have antidiscrimination laws protecting gays and lesbians. Have any ministers been forced to perform same-sex marriages in those states, she asked. “Of course not, Your Honor,” Bonauto replied.
      Scalia did not relent, insisting that a constitutional requirement would not allow exceptions permitted under a state law. After Bonauto replied on her own, Justice Elena Kagan joined the fray, suggesting disingenuously that “maybe” she was “just not understanding Justice Scalia’s question.”
      “There are many rabbis that will not conduct marriages between Jews and non-Jews, notwithstanding that we have a constitutional prohibition against religious discrimination,” Kagan observed. “And those rabbis get all the powers and privileges of the state even if they have that rule.”
      Justice Stephen G. Breyer briefly underscored Kagan’s point by quoting the First Amendment: “It’s called Congress shall make no law respecting the freedom of religion.” Still at it, Scalia asked Bonauto whether she agreed that ministers would not be forced to conduct same-sex marriages. “If they do not want to, that is correct,” Bonauto replied. “That is affirmed under the First Amendment.”
      Two weeks before that argument, my journalistic colleague Garrett Epps had published a column on Atlantic.com that debunked the issue even more effectively. Epps said that his extensive research had turned up only one case in which a minister had been subject to legal action for refusing to marry a couple specifically, a Kansas pastor who refused to marry an interracial couple in the 1980s.
      The Rev. William Barclay, a Baptist minister in Wichita, was briefly jailed after a local prosecutor charged him with violating the state’s law against racial discrimination, according to Epps’ account [April 14]. But the Kansas Supreme Court ordered the case dismissed. “The parties have not cited, nor has our research revealed, a single case from any jurisdiction within the United States where criminal prosecution of a minister has been attempted under even remotely comparable circumstances,” the court stated.
      Back at the U.S. Supreme Court, Justice Samuel A. Alito Jr. raised the religious freedom issue in a slightly different context with Solicitor General Donald Verrilli. Alito noted that the court in 1982 had upheld the government’s decision to deny tax-exempt status to the religiously affiliated Bob Jones University because the school objected to interracial dating. Verrilli replied noncommittally, but acknowledged, “It’s going to be an issue.”
      That colloquy has now been bowdlerized in a report by Fox News correspondent Shannon Bream, who posted an article [May 6] suggesting that churches, not religious colleges, could lose tax-exempt status if they refused to marry same-sex couples. Debunking the piece, the Fox News monitoring group Media Matters quoted Caroline Mala Corbin, a professor at the University of Miami Law School, as calling the threat against churches “highly unlikely.”
      At ground level, opponents of marriage equality have been waving the religious freedom flag ever more vigorously as same-sex marriage rights have advanced. A photographer in New Mexico and a baker in Oregon are the poster children for the groups claiming a religious liberty right for commercial enterprises to refuse to provide services for same-sex weddings.
      State courts in New Mexico and the state civil rights agency in Oregon rejected those claimed religious exemptions from civil rights law, but the issue persists. And public officials in some red states are encouraging the notion that marriage clerks are free to refuse to sanction same-sex unions. A scattering of clerks have refused in several states; Utah enacted a law specifically allowing court clerks that option.
      The religious right has been laying the groundwork for this guerrilla campaign for a while. The issue is all the more important now that federal courts across the country have rejected the opponents’ other arguments for disapproving same-sex marriage. The religious accommodation bills in the news this spring have been deflected, but expect more such liberty-wrapped initiatives if the Supreme Court recognizes marriage rights for same-sex couples in June. But another old English aphorism is worth recalling: you can’t make a silk purse out of a sow’s ear.

Thursday, May 7, 2015

NSA's Telephone Data Collection Ruled Illegal


     The government’s supersecret National Security Agency (NSA) has been illegally collecting and storing records of your telephone calls, emails, and texts at least since 2006 under the authority of a law Congress passed but never intended to be used that broadly.
      That is the strongly-worded conclusion of a federal appeals court decision that found the NSA’s so-called telephone metadata collection program illegal as a statutory matter and at least problematic in constitutional terms.
     The 110-page ruling by the New York-based Second U.S. Circuit Court of Appeals in ACLU v. Clapper might be called the Edward Snowden Whistleblower Decision in honor of the disclosure of the previously secret program by the one-time NSA apparatchik. Snowden, now in self-exile in Russia, unmasked himself in June 2013 as the source for stories in The Guardian and The Washington Post that described the program and the previously secret ruling upholding it by the Foreign Intelligence Surveillance Court (FISC). (See “A Needed Debate on Surveillance Programs,” Jost on Justice, June 16, 2013).
     The American Civil Liberties Union went to federal court promptly to challenge the program as a mass invasion of privacy never authorized by Congress nor permitted under the Fourth Amendment’s prohibition against unreasonable searches and seizures. James Clapper is director of national intelligence. It is a measure of the importance of the program to the national security establishment that government lawyers have vigorously defended it in court even as President Obama called for legislative fine-tuning.
     The program has continued unabated, with stout defense by Clapper and others, even as two legal challenges moved through federal courts: one in New York, the other in the District of Columbia. In New York, U.S. District Court Judge William Pauley ruled the ACLU had no standing to bring the suit; in the Washington case, Klayman v. Obama, Judge Richard Leon found legal standing for the suit and went on to rule the program illegal.
     The Second Circuit panel, consisting of three Democratic-appointed judges, heard arguments in September; at the District of Columbia Circuit, a panel of three Republican-appointed judges heard arguments in November. But both courts may be in the position of closing the barn door (or not) after the horse got out. The program is due to sunset on June 1, and opposition by libertarian-minded lawmakers on the left and right make it unlikely the program will be reauthorized in its present form.
     On that basis, Orin Kerr, a Fourth Amendment expert at George Washington University Law School and Volokh Conspiracy blogger, discounts the decision as “mostly symbolic.” As symbolism, however, the Second Circuit decision teaches an important lesson about the need for checks-and-balances in wartime in this case, the so-called “war against terror.”
     The NSA instituted the program under the supposed authority of the PATRIOT Act, the omnibus anti-terrorism statute that Congress passed within weeks of al Qaeda’s Sept. 11, 2001, attacks on the United States. Civil liberties groups and some Democratic lawmakers raised questions about the breadth of the provisions, but Congress, President George W. Bush, and the general public were in no mood to listen.
     Still, the Second Circuit’s decision makes clear that hardly anyone outside the intelligence establishment, the Foreign Intelligence Surveillance Court, and some members of the intelligence oversight committees understood how far the NSA had taken the law. In its operative section 215, the act authorizes the government to obtain any “tangible thing” based on a showing that it was “relevant to an authorized investigation (other than a threat assessment)” conducted under guidelines issued by the attorney general (emphasis added).
     The NSA proceeded to get all the major telecommunications carriers to turn over records in bulk — so-called telephony metadata. Once the program was disclosed, the agency and its defenders explained that agents were not listening to calls or reading messages, only collecting and storing the records of the calls and messages to look later for possible patterns of possible terrorist activities.
     The three-judge panel, including two former federal prosecutors, would have none of it. To begin, the court noted a study in Science that showed one could identify a telecommunications user 90 percent of the time with as few as four data points (e.g., credit card transactions). So much for anonymity on the ’Net.
     Writing for the panel, Judge Gerard E. Lynch then parsed the statute and rejected the government’s proposed interpretations of the critical phrases. Lynch conceded that relevance can be defined broadly in grand jury investigations, but the “all-encompassing” definition urged in this case he found “unprecedented and unwarranted.” And the mass collection and storage of information, he said, “essentially reads the ‘authorized investigation’ language out of the statute.”
     Oddly, the court declined to issue a preliminary injunction to force the government to suspend the program immediately. Lynch noted the scheduled expiration of the program and the uncertainty on Capitol Hill about reauthorization. Meanwhile, the D.C. Circuit panel, with three strongly conservative judges, seems quite likely to rule the other way, setting the stage for the Supreme Court to resolve the issue unless the whole dispute is deemed moot.
     Today, however, the ruling produced a rare outbreak of bipartisanship on Capitol Hill. The top two Republicans and top two Democrats on the House Judiciary Committee joined in praising the decision. “The bulk collection of data,” the lawmakers said, “is not authorized under the law and is not accepted by the American people.”

Sunday, May 3, 2015

Kennedy at the Rubicon on Marriage

          Anthony M. Kennedy was a young and fairly new federal appeals court judge in 1980 when he first showed latent support for gay rights in a judicial opinion. In a decision upholding the Navy’s discharge of three service members for “homosexual acts,” Kennedy deferred to military authorities, but he added a sentence suggesting that outside the military the Constitution might protect “consensual private homosexual conduct.”
          In recalling the decision last week on the eve of the Supreme Court’s hearing in the same-sex marriage cases, the Los Angeles Times’s veteran reporter David Savage wrote that “almost no one foresaw” that Kennedy would become “the Supreme Court’s most important voice on gay rights.” You’ll have to take my word for this, but I took note of Kennedy’s opinion as editor of the Los Angeles Daily Journal in the 1980s while working on a story about another gay military discharge case.
          In Washington a couple of years later, I thought about the case when I confidently described Kennedy as a moderate conservative after his appointment to the court. Eight terms later, I was not surprised when Kennedy wrote for the 6-3 majority in Romer v. Evans (1996) striking down Colorado’s anti-gay rights initiative.
          Inside the courtroom on the final day of the 2002-2003 term, I clenched my fist into a silent cheer when Chief Justice William H. Rehnquist announced that Kennedy had the opinion for the court in the anti-sodomy law case, Lawrence v. Texas (2003). Some gay men in the courtroom were said to have teared up as Kennedy summarized the decision from the bench, in his full-earnest mode. For me, less than four years after having come out myself, there were no tears, only the heart-racing excitement any reporter would experience as witness to an historic event.
          Ten years later, I was fairly confident that the court would strike down the Defense of Marriage Act (DOMA) but uncertain about what it would do with California’s anti-gay initiative Proposition 8. With Kennedy’s opinion in United States v. Windsor (2013) striking down DOMA’s major provision and the Prop 8 case ducked, I began confidently predicting that Kennedy would join and likely lead an eventual majority in favor of marriage rights for same-sex couples.
          To borrow my colleague’s phrase, almost no one foresaw how quickly the marriage issue would return to the court. Certainly, I didn’t. And, it would appear, Kennedy didn’t either. Thus, Kennedy worried out loud in his first comments during the oral argument last week [April 28] in Obergefell v. Hodges about the pace of change on the issue.
          With Lawrence on the books for only “10 years” (actually, almost 12), Kennedy asked whether the court should be changing a definition of marriage that goes back for “millennia.” “There has not really been time,” Kennedy remarked, “for the federal system to engage in this debate, the separate states.”
          Later on, Kennedy also discounted any of the social science that same-sex marriage advocates had cited to show, for example, that children do well when raised by same-sex parents. “It seems to me then that we should not consult at all the social science on this,” he told the plaintiffs’ lawyer, Mary Bonauto, “because it’s too new.”
          Kennedy became much more animated, however, when he confronted the lawyer representing the states, former Michigan solicitor general John Bursch. Kennedy had spoken of the importance of “dignity” in the gay rights context as early as 1986, but Bursch argued that the state’s “entire interest” in marriage was strengthening parent-child bonds and not all “dignitary bestowing” for the spouses.
          “Just in fairness to you,” Kennedy said, “I don’t understand this not dignity-bestowing. I thought that was the whole purpose of marriage. It bestows dignity upon both man and woman in a traditional marriage.”
          “It’s dignity bestowing,” Kennedy continued, “and these parties say they want to have that same ennoblement.” Bursch tried to recover, to no avail. Ending the colloquy, Kennedy confessed he was still “puzzled.
          With Kennedy’s first comment in mind, I hedged my bets in a radio hit that afternoon. Recalling Justice Brennan’s famous “counting to five” rule, I said that lawyers on both sides had some reason to think they had a shot at the critical fifth vote: Kennedy’s.
          Others in the press corps were similarly tentative, but Adam Liptak in The New York Times wrote in his lead that the “tone and substance” of Kennedy’s questions gave marriage supporters “reasons for optimism.” BuzzFeed’s Chris Geidner flatly predicted a pro-marriage ruling.
          Tellingly, Ed Whelan, a former Scalia law clerk and now the Bench Memo blogger for the National Review’s online site, openly despaired. “Having watched Justice Kennedy for 25+ years,” Whelan tweeted, “I have no real hope he’ll let state marriage laws survive.”
          Kennedy is capable of Hamlet-like indecision. He worried aloud to a reporter about “crossing the Rubicon” on the day in 1992 when he joined a five-justice majority to reaffirm the abortion rights decision Roe v. Wade. In the end, however, Kennedy must be true to his own self and his record on the bench. He may have wrestled with the decision, but when the justices met in conference on Wednesday [April 29], the best guess is that he provided the fifth vote for marriage equality and, as the senior justice in the majority, assigned the opinion to himself.

Monday, April 27, 2015

Marriage Plaintiffs Bring Diverse Stories to Supreme Court

      James Obergefell will apparently go down in the history books as the lead plaintiff in the same-sex marriage cases perhaps like Linda Brown in the school desegregation cases or like lesser known, unsuccessful civil rights litigants such as Michael Hardwick in the decision upholding anti-sodomy laws, Bowers v. Hardwick. But the Ohio widower’s suit, now known as Obergefell v. Hodges, was neither the first nor the broadest of the four cases set to be argued before the Supreme Court on Tuesday [April 28] in what may be a climactic showdown on marriage rights for same-sex couples.
      Instead, the first and the broadest of the four cases was filed by Michigan nurses April DeBoer and Jayne Rowse in January 2012, a year-and-a-half before Obergefell filed his suit in his home state of Ohio. DeBoer and Rowse, unmarried but in a long-term committed relationship, went to federal district court in Detroit as the concerned mothers of three children adopted from the state’s foster care system.
      Michigan law prevented DeBoer and Rowse from jointly adopting each of the three children. They asked in their suit simply for joint adoption, but Judge Bernard Friedman suggested they broaden the suit into a direct attack on the state’s ban on same-sex marriages. Friedman then presided over a full-dress, nine-day trial before ruling the state ban unconstitutional on March 21, 2014.
      Obergefell, a one-time IT consultant now working in real estate in Cincinnati, filed his suit in July 2013 along with his legally married husband, John Arthur. Arthur had been stricken in 2011 with ALS  the neuromuscular condition known as Lou Gehrig’s disease  and by 2013 was degenerating rapidly toward an imminent death.
      Obergefell and Arthur were married in Maryland in July 2013, barely two weeks after the Supreme Court’s decision in United States v. Windsor to strike down the major part of the federal Defense of Marriage Act. The ceremony was performed in a medically equipped plane still parked on an airport tarmac. Back in Cincinnati, they filed a federal court suit asking for an order that Arthur’s death certificate reflect his marriage to Obergefell despite the state’s non-recognition provision. Judge Timothy Black issued the order and then broadened his ruling in December 2013 to prohibit Ohio authorities generally from refusing to recognize same-sex marriages from other states.
      Plaintiffs in the Kentucky and Tennessee cases went to federal court with the same type of concrete interests in winning legal recognition of their relationships. In Kentucky, Greg Bourke and his husband Michael DeLeon filed suit on July 26, 2013, along with three other married same-sex couples, seeking to strike down the state’s non-recognition provision. Bourke and DeLeon had been together since 1981 and were raising two children together. They had married in New York in 2004 and, like DeBoer and Rowse in Michigan, wanted to be recognized jointly as parents of each of the two children.
      Judge John Heyburn II ruled in their favor on February 12, 2014, but issued a broader ruling after two unmarried couples joined the suit to directly challenge Kentucky’s ban on performing same-sex marriages. Heyburn’s ruling, issued on July 1, is the only one of the rulings in the four cases to hold sexual orientation a suspect classification and laws based on sexual orientation subject to heightened constitutional scrutiny.
      In Tennessee, Valeria Tanco and Sophia Jesty went to federal court in October 2013, among other reasons, to be eligible for family health plan coverage from the University of Tennessee, where they both taught veterinary medicine. They had met as classmates at Cornell’s College of Veterinary Medicine, married in New York, and then moved to Tennessee when they were both offered faculty positions at the state school. Tanco was also pregnant when the suit was filed, and the suit sought to ensure that both women would be listed as parents after the child’s birth.
      Two other married same-sex couples who relocated to Tennessee for job-related reasons similar to Tanco’s and Jesty’s joined the suit, seeking to nullify the state’s non-recognition provision. Judge Aleta Trauger ruled for the plaintiffs on March 14, 2014, citing Heyburn’s decision from one month earlier in several places. “All relevant federal authority” supported the couples’ cases, Trauger wrote. Proscriptions against same-sex marriages, she predicted, “will soon become a footnote in the annals of American history.”
      Despite the lower courts’ unanimity in the four cases, the Sixth U.S. Circuit Court of Appeals upheld the challenged state laws in a split decision on November 6, 2014. Writing for the majority, Judge Jeffrey Sutton said the issue was better left to legislatures than to courts; he deferred to the states’ policy arguments that the bans encouraged responsible procreation by opposite-sex couples and avoided risks of raising children in same-sex households. Judge Deborah Cook joined the decision.
      In a blistering dissent, Judge Martha Craig Daughtrey criticized what she called Sutton’s “false premise” of looking to legislatures instead of courts to safeguard rights. If the courts shirk their “responsibility to right fundamental wrongs left excused by a majority of the electorate,” she wrote, the constitutional system of checks and balance will “prove to be nothing but shams.”
      Obergefell’s case is listed first only because it was the first to be filed at the Supreme Court, all on the same day. In news interviews, Obergefell has said he is fighting for himself and his husband, who died on October 22, 2013, before any of the substantive rulings in the four cases. Obergefell filed the suit initially against the state’s governor, John Kasich, but the lead defendant is now Russell Hodges, director of the state’s department of health.

On Marriage, U.S. Judges in Lower Courts All but Unanimous

      The Supreme Court is all but certain to be divided when it issues its decision in the same-sex marriage cases, presumably at the end of June. But federal judges in district and appellate courts have been all but unanimous in favor of recognizing a constitutional right to marriage for same-sex couples over the past 17 months.
      The four judges who ruled in favor of plaintiff same-sex couples in the cases to be argued before the court on Tuesday [April 28] are a representative cross-sample of the scores of federal judges who, with two exceptions, have ruled in favor of marriage equality since December 2013. All of those rulings have relied in large part on the Supreme Court’s decision in June 2013 in United States v. Windsor, which struck down the major provision of the federal Defense of Marriage Act (DOMA).
      The judges from Michigan, Ohio, Kentucky, and Tennessee include two who were appointed by Republican presidents, two by Democrats. They range in age from early 60s to early 70s. They received their law degrees from schools representing the range of legal education: elite, second-tier, state school, small local school. Their legal careers before appointment to the federal bench were nothing out of the ordinary.
      All four of the judges spent most of their time after law school in private practice. Two had worked as prosecutors, and two had served in lower federal courts — either as a magistrate or as a bankruptcy court judges. Only one, it appears, ever sought elective office.
      Here as reference are capsule biographies of the four with the case names in parentheses:
      Bernard Friedman, born 1943, Detroit College of Law, local prosecutor, private practice, appointed by Reagan, 1988 (DeBoer v. Snyder).
      Timothy Black, born 1953, Harvard Law, civil litigator, unsuccessful candidate as Democrat for state judge, U.S. magistrate judge (chosen by USDC judges), appointed by Obama, 2009 (Obergefell v. Hodges).
      John Heyburn II, born 1948, University of Kentucky Law, civil litigator, appointed by Bush41 in 1992 (Bourke v. Beshear) .
      Aleta Trauger, born 1945, Vanderbilt Law, private practice, asst US atty, chief of staff to mayor of Nashville, US bankruptcy judge (1993-1998), appointed by Clinton, 1998 (Tanco v. Haslam).
      Among the five federal courts of appeals to rule on same-sex marriage, only the Sixth Circuit ruled against recognizing a right to marriage for gay and lesbian couples. In the other four circuits, two decisions were unanimous and two were by 2-1 votes. The dissenting judges in the Fourth and Tenth Circuit cases were both Republican appointees.
      In the Sixth Circuit decision, Obergefell v. Hodges, the three judges divided along the partisan lines of the president who appointed them. Here as reference are capsule biographies:
      Jeffrey Sutton, born 1960, Ohio State College of Law, private practice, Ohio state solicitor, appointed by Bush43 in 2003 after earlier nomination in 2001 was never voted on.
      Deborah Cook, born 1952, University of Akron Law School, private practice, Ohio Court of Appeals, Oho Supreme Court, appointed by Bush43 in 2003 after earlier nomination in 2001 was never voted on.
      Martha Craig (Cissy) Daughtrey, born 1942, Vanderbilt Law School, local prosecutor, Tennessee Court of Criminal Appeals, Tennessee Supreme Court, appointed by Clinton in 1993.
      Sutton wrote the majority opinion; Daughtrey wrote a dissenting opinion.
      The Michigan and Kentucky cases challenge state laws banning marriage for same-sex couples; the Ohio and Tennessee cases challenge state laws refusing to recognize same-sex marriages from other jurisdictions. The Supreme Court consolidated the four cases for two-and-a-half hours of arguments on Tuesday, with 90 minutes on the state bans and 60 minutes on the non-recognition provisions.

Sunday, April 26, 2015

Supreme Court's Defining Moment on Marriage

      Sixty years ago, lawyers from four states defending racial segregation before the Supreme Court urged justices to weigh history, tradition, judicial restraint, and the risk of social disruption as more important than the rights of black school children to educational equality. With courage and hard-won unanimity, the Supreme Court rejected those arguments and issued the now universally celebrated decision in Brown v. Board of Education (1954) that outlawed racial segregation in public education.
      Lawyers representing four states will rise before the Supreme Court on Tuesday [April 28] to make similar arguments that history, tradition, judicial restraint, and the risk of social disruption outweigh the rights of same-sex couples to marriage equality. The arguments against equality today are no stronger than the arguments six decades ago, but the Roberts Court is all but certain to speak with divided voices even if, as expected, it strikes another blow for equal justice under law.
      Three conservative justices — Antonin Scalia, Clarence Thomas, and Samuel A.Alito Jr. —  are on record just two years ago in finding no constitutional right to marriage for same-sex couples. Those three, but significantly not Chief Justice John G. Roberts Jr., said as much when they dissented from the court’s decision in United States v. Windsor (2013) to strike down the Defense of Marriage Act’s ban on federal marital benefits for legally married same-sex couples.
      The justices were divided in the school desegregation cases after an initial round of arguments in fall 1952. They came together only after a temporizing decision to ask for rearguments and the fortuitous appointment of a new chief justice, Earl Warren, to replace the ineffectual Fred Vinson after Vinson’s death in fall 1953. It is an unfavorable reflection on the current court that no one anticipates a possible change of mind from those three Windsor dissenters even after two-and-a-half hours of oral arguments and an outpouring of more than 140 friend-of-the-court briefs.
      In the marriage cases, the four states — Kentucky, Michigan, Ohio, and Tennessee — and the religious and social conservative groups supporting them put history and tradition first and foremost in arguing against a ruling for the gay and lesbian couples. They say the court must defer to the “traditional definition of marriage” — one man, one woman. The states in Brown made the same appeal to tradition in defending racially segregated schools.
      The states today are, of course, correct that no U.S. jurisdiction recognized same-sex couples as legally married until Massachusetts adopted court-ordered marriage equality in 2004. In an amicus brief supporting the plaintiff couples, however, scholars on the history of marriage stress that marriage laws have changed over time to reflect changing views of the spouses’ respective roles and rights. And they note pointedly that interracial marriages were banned in many states until the Supreme Court decided in Loving v. Virginia (1967) to lay those anti-miscegenation laws to rest as a violation of a fundamental equal protection right to marriage.
      The states’ judicial restraint arguments rest both on a narrow construction of constitutional text and a narrow view of judicial authority. The Fourteenth Amendment, they contend, was never intended to displace the states’ traditional authority over marriage. The states in Brown made the same argument in defending their prerogatives in education policy — unsuccessfully. And Loving is precedent for the Fourteenth Amendment to override the states just the same on marriage policy.
      The states argue in any event that the Fourteenth Amendment does not protect homosexuals as a class. As original intent, they are no doubt correct. Over time, however, the amendment has been recognized as limiting discrimination not only on the basis of race, but also, as notable examples, on the basis of sex and alienage. And the plaintiffs and several civil rights groups emphasize that gays and lesbians meet the established standards for recognition as a suspect class, including a history of discrimination and relative political powerlessness.
      Very significantly, the Obama administration urges the court in its amicus brief to recognize sexual orientation for the first time as a protected classification. Solicitor General Donald Verrilli will be sharing argument time with the lawyer for the plaintiffs on Tuesday — just as the Eisenhower administration argued for plaintiffs in Brown.
      In the name of judicial restraint, the states are also urging the court now to let the marriage issue play out through the political process — just as the states in Brown defended the rights of local self-government. But a brief filed by current and former officeholders from the four states notes that the court has rejected deference to the democratic process when laws disfavored minority groups.
      As in Brown, the states or some of their supporting groups today are warning of dire consequences from a ruling to nationalize marriage rights for gay men and lesbians. They predict declining marriage rates among opposite-sex couples, increased incidence of out-of-wedlock births, increasing numbers of abortions, and reduced parental bonds with children in straight marriages. The arguments overlook that marriage rates fell and out-of-wedlock births rose long before same-sex marriage was being argued seriously in courts or in legislatures. And the assumptions that underlie the predictions are best described as preposterous.
      The justices do not decide cases by comparing stacks of amicus briefs, of course, but the organizations backing the plaintiffs outnumber and far outweigh those siding with the states. Sixty years ago, the court met its equal-justice responsibility in Brown; the decision in the marriage cases is due by the end of June.