Undermining Judicial Victories

by Stephen H. Miller on October 26, 2010

As the Washington Blade reports, in Florida, GOP Attorney General Bill McCollum announced Friday that he won’t appeal a court ruling last month overturning Florida’s law banning gay people from adopting children, putting a “final end” to the 33-year old state prohibition.

Meanwhile, the military’s “don’t ask, don’t tell” ban on openly gay servicemembers is back in effect, after an appellate court granted the Obama Administration’s request for an injunction to a district court ruling that had, for several weeks, put an end to government-ordered discrimination against gay citizens. With a Republican House on the horizon and the U.S. Supreme Court’s tradition of military deference, there is a real risk that the reinstated gay ban could be with us for a long time.

Interestingly, the Blade story reports that this need not have been the case:

legal experts, including constitutional specialists with the American Civil Liberties Union and the LGBT litigation group Lambda Legal, agree that presidents generally should defend federal laws. But they say the obligation to defend a law should not apply to cases where strong evidence exists that the law is unconstitutional and a court issues a ruling overturning the law on constitutional grounds. . . .

“The question is no longer whether the Executive will defend an Act of Congress, but whether the Executive will appeal from a well-reasoned, obviously correct federal court ruling based on findings of fact that are exceedingly unlikely to be reversed,” [ACLU Executive Director Anthony Romero] said in his letter. “Given these findings and the proper legal standard of review to be applied, there is no reasonable argument for the constitutionality of the policy, and no reason for the government to appeal,” he said.

Generally, I believe that legislatively overturning anti-gay laws is preferable. But if that is not going to happen (because for the year and a half the Democrats had a filibuster-proof senate majority, they dithered), then the courts must be used to secure equality under the law. But when it comes to military discrimination, or the Defense of Marriage Act’s banning the federal government from recognizing same-sex marriages that states have sanctioned, that’s not the view of this administration.

{ 27 comments }

Bobby October 26, 2010 at 3:22 am

Normally I hate “activist” judged but then I wonder, where would we have been without Brown vs. the Board of Education, Loving vs. Virginia, and all those other cases that changed America for the better? Where they not activists judges as well?

I don’t think the judge did anything wrong, Don’t Ask Don’t Tell does violate the first amendment even if some other people don’t see it that way.

Mark October 26, 2010 at 3:54 am

“Generally, I believe that legislatively overturning anti-gay laws is preferable. But if that is not going to happen . . . then the courts must be used to secure equality under the law.”

I agree, but you’re running up against your co-blogger Jonathan Rauch, who appears to believe that the gay and lesbian equality movement has to play by different rules than every other civil rights movement, and eschew any involvement with the courts.

Carl October 26, 2010 at 7:19 am

The climate created over the last decade by the whole outrage towards judges making decisions makes it increasingly unlikely any administration will ever not appeal a verdict which has any hint of controversy. More than once people I know have told me about how it wasn’t right for “judges to make the law” over DADT. Even if Obama had somehow, for once, decided to do the right thing regarding gay rights, the GOP and a lot of people out there would have seized on the out of control judiciary, wild judicial activist out of control liberalism, and so on, and DADT would be enforced or made even worse, just as it will be now. With the Republican Party of today, which is continually rewarded by voters for not supporting gay rights, and with the always spineless Democrats, DADT has nowhere to go but up.

Jorge October 26, 2010 at 12:00 pm

When a US president takes an oath of office, he swears to “preserve, protect, and defend the Constitution of the United States.”

The only logical conclusion, therefore, is that the Obama administration does not believe Don’t Ask, Don’t Tell is unconstitutional.

A judge can overrule him on this, but an attorney cannot.

As someone who does think the Don’t Ask, Don’t Tell policy remains unconstitutional, I find this thought unsettling.

Michigan-Matt October 26, 2010 at 9:05 pm

I’ve been trying hard to understand and appreciate those who claim that the Courts are somehow better endowed to enact public policy than are the legislative assemblies of elected officials… in this instance, Congress. Public policy is never better served by judicial activism over legislative construct —American and English history has a thousand lessons for each one that, some would say, worked out ok.

And why those same people can argue, with a str8 face no less, that because the Sen Dems didn’t have a filibuster proof majority on the issue, they wouldn’t bring it up for consideration. And why those same people give NancyP and House Democrats a pass by supporting their claim that it has to be a Senate 1st action.

Could these supposedly pro-gay rights legislators be so scared of the adverse public response to taking a principled stand for one of the Democrat Party’s most sacred and hard working and loyal constituencies? Contrary to common liberal orthodoxy here, the civil rights movement advanced most significantly when elected legislators led on the issues, not just followed a small, elite of jurists.

Imagine how different today’s landscape would have been if something like Roe v Wade issues had been decided by legislative enactment, not judicial fiat. Cowards (like then Dem Sen Don Reigle on the abortion issue) will always be delaying the gay rights movement with “not now”, “the time isn’t right”, “get x,y,z to support it and then I can.”

And the gay leadership community will go right along supporting them… because we haven’t worked on developing an alternative option. Shame on us. We deserve what we get… lip service and demands for money, rally volunteers and a seat on the back of the bus.

Lymis October 28, 2010 at 12:22 pm

There’s a simple answer to that.

Legislatures are not required to make sure that the laws they pass are Constitutional. They should, of course, but their priorities are far more likely to be whether something is popular or useful, that it achieves some end goal.

The courts don’t enact public policy so much as act as umpires and referees. Nobody tries to make the case that an umpire can play the game better than a player, but that isn’t what he is there for.

When the Legislature passes a law that is not allowed under the rules, it is the Courts’ obligation to strike the law down. The Legislature is welcome to try to achieve the same end by passing a law that IS allowed under the rules.

If the Legislatures were more conscious of writing laws that paid attention to the limits and obligations imposed by the Constitution, the Courts would be less busy in this regard.

BobN October 26, 2010 at 10:42 pm

And why those same people give NancyP and House Democrats a pass by supporting their claim that it has to be a Senate 1st action.

Uh, the House already passed the Defense Authorization Bill with the repeal of DADT in it back in May.

It joins some 400 bills passed by the House and blocked in the Senate by Republican senators, including a fair number of bills drafted and sponsored by the GOP.

But don’t let reality impinge on your ranting.

The House vote was 234 to 194, with 229 Democrats and 5 Republicans in favor, after an emotionally charged debate. Opposed were 168 Republicans and 26 Democrats.

http://www.nytimes.com/2010/05/28/us/politics/28tell.html

Michigan-Matt October 27, 2010 at 1:43 pm

The House and Democratic Party leadership had the option of passing an actual repeal of DADTDHDP, BobN. What they chose to do was pass the Murphy Amendment which begins a process which might lead to repeal one day after the Dept of Def and the various military brass certify a change in policy won’t adversely affect the military.

They didn’t, contrary to your bias, pass a bill to repeal DADT. Nice try at spin. You’re about as good at spinning the Dem line as you are being honest about this important issue.

BobN October 27, 2010 at 7:15 pm

Pardon me for using the same terminology you yourself chose to use to describe the situation. YOU said they’re leaving the first step to the Senate. Looking at it that way, the House has already acted.

Michigan-Matt October 28, 2010 at 1:57 pm

BobN, put down the HRC spin machine talking points and accept that you contended in an intellectually dishonest way that the House had already voted to repeal DADT… they didn’t. They put into place a mechanism to allow others to decide the issue at a later date –that’s hardly the kind of gay-friendly advocacy by the Dem left or Dem leadership that would allow you and others to contend the House has already passed a bill to end DADT.

Of course, like lots of gayLeft Dem apologists, you might find it easier to spin the issue as one of evil GOPers in the Senate are thwarting our will… intellectually dishonest and wrong of you.

Carl October 26, 2010 at 11:49 pm

“Imagine how different today’s landscape would have been if something like Roe v Wade issues had been decided by legislative enactment, not judicial fiat.”

I don’t think today’s landscape would be all that different. Abortion is a very polarizing issue and many of those who see abortion as murder are not upset because of a court ruling, they’re upset because unborn children are being killed.

Bobby October 27, 2010 at 2:45 am

“I don’t think today’s landscape would be all that different. Abortion is a very polarizing issue and many of those who see abortion as murder are not upset because of a court ruling, they’re upset because unborn children are being killed.”

—-It’s both, they don’t like the kids being killed and they didn’t like SCOTUS deciding what used to be a state issue.

Ideally speaking, our system of federalism is supposed to let the states create the kind of America they want. As the right-wing writer of “Patriots” pointed out, people used to say “THESE United States,” not “The United States.” Yet our federal government is much too powerful, did you know that under Bush the EPA placed a ban that will take place soon on incandescent light bulbs? Or that the Department of Transportation ordered New York and other states to replace all cap road signs, so instead of STATE ST. they’re supposed to read State St? When it comes to freedom in America, it’s being killed by a thousand cuts.

Carl October 27, 2010 at 7:30 am

“It’s both, they don’t like the kids being killed and they didn’t like SCOTUS deciding what used to be a state issue. ”

I think the matter of a state issue is something which only offends a lot of people if they already disagree with the decision. Many people shrug off or approve of federal rulings which go along with what they want.

Jorge October 27, 2010 at 10:38 am

It joins some 400 bills passed by the House and blocked in the Senate by Republican senators, including a fair number of bills drafted and sponsored by the GOP.

But don’t let reality impinge on your ranting.

It seems rather silly to complain about the Republican Party in a time when they have the least power ever in living memory. If the Obama administration is being blocked while having a majority in both houses of Congress, including a super-majority in the Senate for much (most) of its first term, it is not fit to lead.

BobN October 27, 2010 at 7:19 pm

The GOP has decided to throw traditional, reason, and process out the window. They are behaving as no other minority party in the Congress has EVER behaved.

In future Congresses when the shoe is on the other foot, remember who went there first.

(Though, frankly, I don’t think the Dems have the organizational discipline to give as good as they’re getting.)

Michigan-Matt October 28, 2010 at 2:05 pm

BobN, you were the one claiming that the enlightened House Dem leadership had already acted in a courageous, gay friendly way to repeal DADT. They didn’t; they merely passed an amendment that allows several ranking civilian and military govt officials to someday engage in a process of review which might lead to certifying that DADT could be repealed without adverse consequences.

Hardly the kind of strong, deliberate, gay-friendly stand that gay service men and women were looking for… eh?

The GOP has been riding in the back of the Team Obama and Team Pelosi buses for a long, long time now. They have little power and it was proven when the Sen Dem leadership opted to use the so-called nuclear option to pass the universally despised ObamaCare legislation with a simple majority… claiming it was a budget bill.

The Sen filibuster rule is dead. The Democrats will long rue the day they killed it in order to get ObamaCare out of the Senate as a stillborn program.

Repealing ObamaCare will only take 50 GOP votes in 2012.

Carl October 27, 2010 at 10:29 pm

Given that the Democrats are always divided over gay rights issues and that quite a few in the Senate will never be likely to support DADT, I think it would take 70 Democrat senators before the legislation had a chance of passing.

Probably the time it would have been most likely to have passed was in 2001 or 2002, when 9/11 was more fresh in the minds of both parties and when the GOP did not feel like they had as much of a need to prove their anti-gay credentials to various power brokers. With a Democrat in the White House, Republican senators are much more likely to oppose, even if they had once supported (like McCain, Snowe, Collins).

Jorge October 28, 2010 at 1:55 am

The GOP has decided to throw traditional, reason, and process out the window. They are behaving as no other minority party in the Congress has EVER behaved.

I suppose I should take some solace in the fact that we have a 24/7-campaigning president, a cornhusker-kickbacking Senate, and extreme Pelosi party discipline in the name of social justice, all marshalled on issues strong majorities of Americans oppose, is really all business as usual. I will not you answer this question of who went were first unchallenged.

I’m sure that the Republican party, by your standards, has never been reasonable or traditional, and has always bent the rules. So forgive me if I don’t find you very credible here when you suggest it has “decided” to do something that has never been done before.

BobN October 28, 2010 at 3:07 am

You want to compare Obama’s campaign schedule with Bush’s?

400 bills blocked is unprecedented.

Dozens and dozens of fillibusters.

Hundreds of personal holds.

These are abuses of the system. Senators have always had the power to stop legislation and BOTH PARTIES HAVE DONE SO in the past. What is unprecedented and unforgivable is the volume of cases. These mechanisms are supposed to be used judiciously, with restraint.

And, please, party discipline? You’re gonna use that to attack the Dems? Pffff. I wish.

Jorge October 28, 2010 at 4:52 am

You want to compare Obama’s campaign schedule with Bush’s?

Any day of the week. Obama campaigns 365/24/7. When something doesn’t go his way, he yells and moans about it and yells into the microphone that the people are just too scared to understand. Bush just sat back and said he’d let history judge him.

400 bills blocked is unprecedented.

Dozens and dozens of fillibusters.

Hundreds of personal holds.

My goodness, it’s been so long since I’ve seen the arcane theories of the progressive media I’ve almost forgotten what they sound like. But this hardly explains how this isn’t business as usual for Congress, how it’s new and “unprecedented.”

Senators have always had the power to stop legislation and BOTH PARTIES HAVE DONE SO in the past. What is unprecedented and unforgivable is the volume of cases. These mechanisms are supposed to be used judiciously, with restraint.

That’s ridiculous. I’ve already pointed out the unprecedented level of cronyism and corruption in the Senate and the extreme overbearing nature of our current president. Judiciousness and restraint hardly characterize the methods and intent of the current party in power; its actions are directly responsible for the intensity of the opposition. If you’re going to make this point you’ll have to stand on a much stronger rebuttal than “You want to compare Obama’s campaign schedule with Bush’s?”

Considering that the party in power has fallen out of popularity in a rather lopsided way, I think partisan gridlock is a perfectly normal and appropriate thing. The Democratic party has the presidency, control of the House, and a near-supermajority in the Senate. The fact that any partisan gridlock has occurred at all in these circumstances raises serious questions about the party’s ability to lead.

As usual, your theme is the Republicans can’t do anything right and the Democrats can’t do anything wrong.

Jorge October 28, 2010 at 4:54 am

And, please, party discipline? You’re gonna use that to attack the Dems? Pffff. I wish.

Oh, I was being facetious with that one. I happen to like Nancy Pelosi a lot.

Michigan-Matt October 28, 2010 at 2:13 pm

BobN would have us all think that it’s the evil GOPers who have literally stopped Team Obama in its tracks.

Let’s remember, when it came to ObamaCare, it was a key group of blue-dawged Democrats in the House who appeared to hold sway. One of their leaders, Michigan’s own Bart Stupak, sold out the RTL folks in order to carry Pelosi’s and Obama’s waterpails… and it cost him his career –and, likely, the House seat he held for yrs as a fatcat Democrat.

But for BobN’s Democrat spin, he has to claim it’s all about the evil GOP. About as truthful as saying the House Dems already passed DADT repeal.

BobN October 28, 2010 at 6:38 pm

If I would have you do anything, it would be to be more honest about what is going on, both in politics and in your own posts.

I’m sorry I pointed out your error about DADT in a way you found spin-ish. Next time, don’t be so sloppy about how you formulate your erroneous assertion, and I won’t use the same formulation when I correct you.

BobN October 28, 2010 at 6:34 pm

There are any number of summaries out there on the explosion of filibusters in the last two Congresses (since the GOP became the minority).

Here’s just one of them:

http://fredtopeka.wordpress.com/2009/02/17/number-of-filibusters/

North Dallas Thirty October 31, 2010 at 8:21 am

There are any number of summaries out there on the explosion of filibusters in the last two Congresses (since the GOP became the minority).

Except what’s the problem with the “statistic” you cited?

this is looking at cloture votes not filibusters–not every filibuster will have a cloture vote;

cloture is used to end debate and can be used for things other than a filibuster;

So you’re citing a statistic that doesn’t measure what you say it measures to attempt to prove your point.

This is why gays and lesbians aren’t taken seriously. Both sides know that gays and lesbians are like BobN, so irrationally bound to the Obama Party that they can make up any rationalization for anything.

Infovoyeur October 29, 2010 at 12:13 am

Well as for “judicial activism.” Well, if the Climate of Opinion in last dekaids was going not toward multicultural egalitarianism etc., but narrowing down in the other direction toward elitism and exclusion…and say the judges (courts) supported that…well the heck, then some conservative-type people would say that such judicial activism” was just fein, might they not…

Heck the Supreme Court is often biased. Dread Skott, also Bowers vs. Hardwick then they got more objective in Texas Lawrence. And the raft of judges recently pro-gay, Prop. 8, the DADT, they’re not “activist” against validity, they’re just realizing objective gays are no repeat no objective danger to society and etc. Not because they bravely thought out side of the Boxx, but because they absorbed the evolving Cultural Klimate of less queer-fear…

It’s all a puppet theatre, with the Puppetmaster of the norms mores folkways pulling the string’s whitsch we all dance too…

Jorge October 29, 2010 at 12:47 am

Interesting, that. I’ll keep it in mind.

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