Supreme Court, Legal Feed

Bataillon's Ruling

The best part of Judge Bataillon's ruling that Nebraska's ban on same-sex marriage is unconstitutional is this:

To the extent the State's position is that it has an interest in promoting family stability only for those children who are being raised by both of their biological parents, the notion that some children should receive fewer legal protections than others based on the circumstances of their birth is not only irrational—it is constitutionally repugnant.

The conclusion of the ruling deserves to be quoted as well:

Nebraska's “Defense of Marriage" Constitutional Amendment, Section 29, is an unabashedly gender-specific infringement of the equal rights of its citizens. The State primarily offers as its rational basis for this gender-specific discrimination the encouragement of biological family units. The essence of this rationale has been rejected by most courts and by no less than the Supreme Court. With the advent of modern science and modern adoption laws, same sex couples can and do responsibly raise children. Unfortunately, this law inhibits their commendable efforts.

For the majority of married couples, those without children in the home, marriage is a legal and emotional commitment to the welfare of their partner. The State clearly has the right to encourage couples to marry and provide support for one another. However, those laws must be enforced equally and without respect to gender.

It is time to bring this unequal provision to an end.

Recent Marriage Equality Rulings

Five days ago I read the ruling by the Louisiana federal judge Martin Feldman that supported that state's ban on same-sex marriage.  Unlike many who reacted with overwhelmingly negative response, I did not.  Based upon my reading, I did not think that the judge was some hate-monger or old school reactionary.  At the time I wrote to a friend, "I think it will actually be good to see a ruling like this, which does adhere strictly to the existing precedents.  What this will do is compel the higher courts to 1) set the level of scrutiny for cases involving same-gender loving people and 2) decide clearly on our constitutional status as a class of people.  Many of the lower courts have ruled on those larger issues, and this judge doesn't think it is his authority to rule on those, so he is abiding strictly by what the higher courts have already determined."  This judge basically decided that no existing precedents allowed him to overturn a democratic process enacting the ban.

Then came Judge Posner's ruling in the 7th Circuit.  Since at least the mid-90's I've viewed Posner as the best judge in the United States and have lamented that he is not on the Supreme Court.  He is generally a conservative (he was appointed by President Reagan) but he is also a Pragmatist and a powerful intellectual.

He lives up to his reputation as America's finest judge in this, the most entertaining and wickedly funny judicial ruling I have ever read.  I read it while eating lunch in a restaurant, and I'm sure the other patrons kept looking over when I was laughing out loud wondering what I was looking at on my phone.

One might think that Posner and Feldman were examining completely different topics, as Posner focus on discrimination and whether there is some basis for it in the state's laws and Feldman focuses instead on democratic processes.  Yet, Posner evicerates Feldman's way of thinking.  

On the issue of democratic processes, Posner dispenses with the argument in a small paragraph:

Wisconsin’s remaining argument is that the ban on same-sex marriage is the outcome of a democratic process—the enactment of a constitutional ban by popular vote. But homosexuals are only a small part of the state’s population—2.8 percent, we said, grouping transgendered and bisexual persons with homosexuals. Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.

That final sentence dispenses with almost the entirety of Judge Feldman's ruling.

Posner's ruling is pretty simple, actually.  He says it isn't even important to determine issues like level of scrutiny and whether marriage is a fundamental right, as other courts have argued.  Instead, he turns the arguments of the defendant states against them and uses their own criteria to determine the case.  Here is the simple conclusion:

The states’ concern with the problem of unwanted children is valid and important, but their solution is not “tailored” to the problem, because by denying marital rights to same-sex couples it reduces the incentive of such couples to adopt unwanted children and impairs the welfare of those children who are adopted by such couples. The states’ solution is thus, in the familiar terminology of constitutional discrimination law, “overinclusive.” It is also underinclusive, in allowing infertile heterosexual couples to marry, but not same-sex couples.

He arrives at that conclusion by showing the utter vacuity of every argument offered by the states.  At times he is sarcastically mocking at how bad the arguments are ("The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously").

He begins with the empirically clear statement that the laws discriminate against a class of people that he later describes as "among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world."  But do those discriminatory laws have any reason?  He finds none.  In fact, the supposed reasons that the states of Wisconsin and Indiana offer--focusing on providing stable relationships for parents--argue against the bans.  The bans, therefore, exist for no other reason than to continue discriminating against a group of people.  

Here, for example, is one of the funniest moments in the ruling:

At oral argument the state‘s lawyer was asked whether “Indiana’s law is about successfully raising children,” and since “you agree same-sex couples can successfully raise children, why shouldn’t the ban be lifted as to them?” The lawyer answered that “the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a conse-quence.” In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.

I can imagine Justice Kennedy will write his majority opinion next year using largely the same legal arguments as Judge Posner.  He will not have to determine larger issues of legal doctrine, but will simply have to apply common sense reasoning and throw out all the remaining bans.

Faith & Pregnancy

My good friend Greg Horton has posted a response to the Hobby Lobby case that I found to be very good.  His main purpose, as Greg usually does on his blog, is to discuss the role of language.  In particular here he is discussing whether faith-talk can define medical categories like "pregnancy."  He concludes, of course, that it cannot.  Which leads him to conclude that "The Hobby Lobby decision is a hydra-headed clusterfuck."  Amen.

Two parts of this post also get to issues that I had with the majority decision, but haven't written about yet, as I also didn't want to jump into the fray before but wanted to read, listen, and mull things over.  Here is issue one, as described by Greg:

To be clear, the case rested on the Green family being allowed to define pregnancy in a way that is counter to how medical professionals define pregnancy. I have no idea why I should take the word of business owners who specialize in selling imported crap for display in middle class homes around evangelicaldom when the American Medical Association seems a far more reliable source of information about medicine, but it's America, and as my students regularly inform me with scalable—depending on their level of offense at my cultural blasphemy—levels of indignation, "Everyone has a right to their own opinion."

In reading the majority decision I was horrified by the line of Justice Alito's that the court was protecting the Green family's belief that four of these contraception methods were abortifacients.  Despite the fact that the scientific and medical communities, including the FDA, don't categorize them as such.  Justice Ginsburg was shocked that the Court now will be adjudicating religious beliefs in a way it never has before, determining if they are sincerely held in order to apply this ruling in other cases.  It is, of course, shocking that the Court is protecting a claim that is empirically false.  I'm not sure how an empirically false medical claim becomes a religious belief, but it did on Tuesday.  And that is Greg's problem, as he concludes his post:

Faith in god does not imply the ability to define non-theological terms, like pregnancy, so that they are consistent with a particular brand of theism. The object of faith is not definitions or meanings that are only tangentially related to words in a sacred text; the object of faith is god. This will necessitate that theists believe certain things are true or false, but extracting categories from the text and then insisting testable truths be understood in light of those categories is not helpful in communicating with members of various tribes who do not share those categories. Pregnant means, for all tribes, a fertilized egg is implanted in the wall of the uterus. To equate faith with the belief in definitions that are contrary to known scientific realities is to impose an anti-intellectual burden on believers that makes meaningful, intertribal communication impossible.

The second big issue I had with the ruling, is also something Greg addresses tangentially.

That the SCOTUS majority opinion specifically said the decision could not be used for precedential purposes related to blood transfusions and other medical realities about which different faith traditions have differing beliefs is a strong indication that they know this was a perilously bad decision. Either the principle applies or it doesn't, and in this case, they treated a comprehensive application of principle as an ad hoc application of principle, but the box is still open and the five justices in the majority will be living with their decision in the form of litigation for years to come.

First, as a practical matter, you cannot claim that the ruling is not a precedent, for clearly lower court judges will be compelled to use it as a precedent when adjudicating similar cases.

Second, the ruling defies the laws of logic that most people learn as an undergraduate in college.  According to those laws it is the basic form of the argument that is valid, regardless of what the particulars are.  The particulars in this case had to do with contraception coverage under the Affordable Care Act.  But if the argument itself is valid, then you can change that particulars and get the same conclusion.  That the Court in point of fact says that the form of argument is not valid when applied to other particulars entails that it is not valid when applied to this particular.  This part of ruling must be making every logicians head spin.

So, we'll be living with this "hydra-headed clusterfuck" for some time.

An different perspective on the birth control case

A rabbi writes that in Judaism the use of birth control is often required by religious faith, such that the ruling on Tuesday may make it more difficult for some Jewish women to fulfill their religious obligations, thus harming their religious liberty.

If other closely held corporations follow suit, we may have hundreds of thousands if not millions of people who will not have access to basic health coverage that helps them to uphold the religious and ethical principles that guide them in building their families.

The Crux of Ginsburg's Dissent

Ginsburg's dissent is, to me, a far more persuasive and compelling set of arguments than those promulgated by the majority in the Hobby Lobby case.  The crux of Ginsburg's argument is a point that the majority, as far as I can tell, basically ignored:

Importantly, the decisions whether to claim benefits under the plans are made not by Hobby Lobby or Conestoga, but by the covered employees and dependents, in consultation with their health care providers.  Should an employee of Hobby Lobby or Conestoga share the religious beliefs of the Greens and Hahns, she is of course under no compulsion to use the contraceptives in question.  But “[n]o individual decision by an employee and her physician—be it to use contraception, treat an infection, or have a hip replaced--is in any meaningful sense [her employer’s] decision or action.”  Grote v. Sebelius, 708 F. 3d 850, 865 (CA7 2013) (Rovner, J., dissenting).  It is doubtful that Congress, when it specified that burdens must be "substantial," had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed.  Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.

The majority on the Court does not seem to comprehend how this part of the ACA was supposed to enhance the autonomy of women.

Brooks on the McCutheon decision

I was heartened by this analysis from David Brooks, who finds the McCutcheon decision on campaign finance to actually be a good thing in that it empowers the parties instead of candidates or donors.  He opposed Citizens United, by the way.  He thinks that the system put in place over the last few decades, post-Watergate, actually was less democratic because it increased the power of special interests and made it more difficult for people to challenge incumbents.  He writes that empowering the parties will made it more difficult for incumbents, will draw more people into the political process, and will attract good candidates who haven't wanted to do all the fundraising required by politics the last few decades.

Western GOPers support marriage equality

News out today that group of GOP leaders have sent a brief to the 10 Circuit supporting marriage equality on conservative and libertarian grounds.  Sen. Alan Simpson, Sen. Nany Kassebaum, and Gov. Gary Johnson are among those on the list.  You can read the full brief here.  It makes the now standard arguments that none of the oppositions claims can withstand rational basis review while making the further claim that marriage is a fundamental right and should be defended for same-sex people against biased majorities.

An excerpt:

Our Nation has undergone too many changes for the better already—especially inits repudiation of discrimination against minorities—to allow social policy to bedictated by unexamined assumptions undermined by evidence.

The Utah and Oklahoma constitutional provisions at issue here rest onsimilar beliefs—sincere and strongly held, but ultimately illegitimate in the eyes ofthe law and devoid of any true grounding in facts—and thus cannot stand evenunder rational basis scrutiny.

In their argument for the fundamental right to marry, they claim that marriage helps to limit government and that the currently existing right is the right to marry who one chooses, that the current right is not limited by gender definitions.

The same is true in this instance:individuals cannot be restricted from exercising their “existing” right to marry on account of their chosen partner’s gender. The marriage bans at issue here thus violate due process in the same fashion as the anti-miscegenation laws struck downlong ago in Loving.
On the issue of whether courts deciding this case is "judicial activism," they say no.  
It is accordingly not a violation of principles of judicial restraint for courts tostrike down laws that infringe on “fundamental rights necessary to our system ofordered liberty.” McDonald v. City of Chicago, 130 S. Ct. 3020, 3042 (2010). It isinstead a key protection of limited, constitutionally constrained government.  SeeThe Federalist No. 78 (Hamilton) (“[A] limited Constitution ... can be preserved inpractice no other way than through the medium of courts of justice, whose duty itmust be to declare all acts contrary to the manifest tenor of the Constitutionvoid.”); see also Madison,
Speech in Congress on the Removal Power (June 8,1789) (“[I]ndependent tribunals ... will be an impenetrable bulwark against everyassumption of power in the legislative or executive; they will be naturally led toresist every encroachment upon rights expressly stipulated for in theconstitution.”).
Simply put, "The state constitutional provisions at issue here ran afoul of the Fourteenth Amendment by submitting to popular referendum a fundamental right that there is no legitimate, fact-based reason to deny to same-sex couples."