Law and Judiciary

Rearguard Actions

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Leading up to and after a Supreme Court ruling in favor of marriage equality, we can expect to see more last-ditch actions such as those aimed at forbidding county clerks from issuing same-sex marriage licenses, which could be passed in Texas and in the deep South, until federal courts put these efforts asunder.

We’d be in a stronger position to oppose these efforts to enshrine discrimination by the state if certain quarters weren’t using the power of the state, where they are in control, to force private vendors to provide services to same-sex weddings (the comments to the Dallas Morning News story contain many claims that it’s LGBT people who are the ones being intolerant, provoking responses claiming that our intolerance is justified intolerance while your intolerance is just intolerance…or whatever).

On a related front, CNN.com looks at the schism between Christian conservatives and big business over defense of religious freedom laws. Then again, the populist right and its counterpart, the progressive left, have never really looked kindly on big business anyway.

More. The debate over whether independent vendors with religious views opposed to participating in same-sex weddings should be forced by the state to do so gets confused, often deliberately by the right, with a related but different issue: whether civil servants should be able to opt out of performing same-sex marriages. As I posted last month:

…here I think the answer has to be no. There is a key difference between private, self-employed citizens who don’t want to provide creative services to same-sex weddings, and servants of the state.

While some of my friends on the left seem to think everyone is essentially (or should be) treated as a servant of the state, that’s actually not the American way, and shouldn’t be.

But, on the other hand, if government officials can’t perform their duty to treat all citizens equally, citing their own religious convictions, then they should step aside. Separation of church and state is also the American way.

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Alabama’s End Game

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It’s not surprising that Alabama would put up a fight against equal rights to marriage under the law, but the U.S. Supreme Court’s refusal to grant a stay to a federal district court’s ruling upholding the freedom to marry, despite Alabama Chief Supreme Court Justice Roy Moore instructing probate judges to continue refusing marriage licenses to same-sex couples, signals the end game. What’s surprising is that things haven’t become even uglier in the Deep South. One can only hope that live and let live with equality under the law is soon seen as the right thing to do by all sides.

More. A statement from Alabama Gov. Robert Bentley says that while he is disappointed the U.S. Supreme court did not stay the district court ruling, he will not take action against probate judges:

“This issue has created confusion with conflicting direction for Probate Judges in Alabama. Probate Judges have a unique responsibility in our state, and I support them. I will not take any action against Probate Judges, which would only serve to further complicate this issue.

“We will follow the rule of law in Alabama, and allow the issue of same sex marriage to be worked out through the proper legal channels.”

The statement is vague, but the Washington Post reports that it means Bentley won’t take action against probate judges who do or do not issue marriage licenses.

Yes, it’s about over. And Judge Moore’s stance, invoking memories of opposition to federal court rulings on desegregation, seems to have backfired. Changing times, indeed.

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Parsing Bruni

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Liberal, openly gay columnist Frank Bruni makes some worthwhile observations about anti-gay prejudice and intransigence among GOP cultural conservatives, but felt the need to score added partisan points by ignoring the Democrats’ own failings. He writes:

…most states have never enacted laws protecting gay people from employment discrimination.

Federal legislation to that effect finally passed the Senate at the end of 2013, when the chamber was controlled by Democrats, but the Republican-led House never bothered to vote on the bill. And there’s no way that the current Congress will send something like it to President Obama for his signature.

OK, but you wouldn’t know from his accusation that the Democrats controlled both House and Senate from 2008-10, and the Employee Non-Discrimination Act never made it out of committee because, well, the Democratic-led House (and Senate) never bothered to vote on the bill.

Meanwhile, the first law the Democratic Congress enacted was the Lilly Ledbetter Fair Pay Act, supported by feminist groups.

There are interesting conclusions that could be drawn about the Democratic leadership’s decision not to spend political capital to pass ENDA despite having the votes, and why LGBT political lobbies didn’t push harder for it. But you can’t get there if you’re just interested in lambasting the GOP.

More. The argument that the GOP would have used Democratic votes for ENDA as a campaign issue so Democrats were forced into inaction is specious. ENDA enjoyed some GOP support, after all, and an anti-discrimination measure was supported by most Americans. Republican opposition didn’t derail Lilly Ledbetter (a bill that did far more for trial lawyers than working women, who already had statutory rights to equal pay for equal work).

Moreover, the claim that ending “don’t ask, don’t tell” was a better priority isn’t supported by the facts; the Democratic leadership was uninterested in moving on either ENDA or DADT repeal. The latter happened only at the end of 2010, when there was an eruption by LGBT bloggers and some activists not beholden to the Human Rights Campaign, as it became apparent Harry Reid was blocking a clean vote that could pass (with more GOP support than Democrats predicted). It was this upsurge of anger from the LGBT community, plus the vital intervention of Sen. Susan Collins and Sen. Joe Lieberman, that finally pushed the vote to the Senate floor.

Sometime during the previous two years ENDA could have been moved, but the strategy was (as with immigration reform) not to pass a bill, but to keep the hope of future passage alive as a campaign issue that would help mobilize targeted voting blocs in the next election cycle.

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Potemkin VIle

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What are politicians who oppose marriage equality defending any more?

We know what they say they have in mind: the mechanical litany of protecting the right of children to have two biologically related parents; some version of Christian values; the independence of the people’s will against unelected judges; and the right of a state to define family relations. Each of those has some appeal, and some merit.

But Alabama House Speaker Mike Hubbard revealed a gap in the politics that should ease those who are jittery about the coming Supreme Court case. After a federal court last week struck down Alabama’s prohibition on same-sex marriage as unconstitutional, Hubbard said, “It is outrageous when a single unelected and unaccountable federal judge can overturn the will of millions of Alabamians who stand in firm support of the Sanctity of Marriage Amendment.”

Chris Geidner helpfully pointed out that, far from multiple millions, less than 700,000 Alabamians voted for the amendment. And that’s out of a population of 4.8 million.

This does not mean marriage equality is popular in Alabama. But you can’t deny that 4.1 million Alabamians did not weigh in on the sanctity of marriage. A lot of them weren’t registered to vote, a lot probably had other things to do on voting day, and you have to assume that a lot of them just didn’t really give much of a damn about this particular issue.

It’s not unlikely that, if this decision is upheld, either on appeal or as a result of the U.S. Supreme Court’s ruling next June, there will be a certain amount of discontent in Alabama, possibly more than there has been in the 36 other states whose marriage equality bans have been overturned.

But think about the magnitude of the yawn that has greeted those other decisions.

So far, the Supreme Court has only overturned one state ban on same-sex marriage, California’s. Seven million Californians passed that ban (against 6.4 million who opposed it), and the court overturned it two years ago in Hollingsworth v. Perry.

While California is a pretty blue state, it is extraordinarily hard to find any of those seven million voters who, after the court’s decision, took to the streets, stormed the courthouse doors, or even wrote letters to the editor. The decision was met by the ban’s many supporters with a shrug. All of the fear and anxiety and emotional manipulation from one of California’s ugliest initiative campaigns had been utterly forgotten. No hard feelings, who’s providing snacks for the kids’ soccer game Saturday?

And that seems to be what’s happening in the other states where bans have been falling on a weekly basis. Most people are just relieved to be getting done with this.

That might be because equality advocates have had it right from the start: this really doesn’t affect most people’s lives negatively, and the ones whose lives it does affect are positively joyous. The bans were a deeply cynical and politically timed moment in American history designed to exploit the last dying gasps of an ages-old prejudice. That spasm forced the constitutional issue, and it turns out the cynics were right in their own way. That particular form of bigotry was dying, and they timed the bans well.

This last generation of politicians still has some long-tail prejudice to cater to. But I’m feeling confident they’re going to find this snake oil doesn’t dazzle the masses the way it used to.

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The Sixth Circuit

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A panel of the U.S. Court of Appeals for the 6th Circuit in Cincinnati ruled 2 to 1 against the freedom to marry (full decision here).

The decision overturns lower court rulings favoring marriage equality in Michigan, Ohio, Tennessee and Kentucky, and makes the 6th Circuit the first appeals court to uphold state bans since the Supreme Court struck down the federal Defense of Marriage Act.

With a split among the circuits, a practical question is whether the cert petitions/responses will be filed quickly enough for the Supreme Court to consider the matter this term, or whether it’s pushed to next fall (meaning ruling June 2016, which would be right in time for the presidential election). Many expect the latter, which could be unfortunate. The slow spread of marriage equality through the circuits has proceeded without any real backlash to speak of, with even conservative GOP governors accepting the verdicts. In fact, many took note of a significant GOP shift during the midterm election campaigns.

Another possibility: for marriage-equality proponents is to seek en banc review by the entire circuit. If that were successful, the move through the circuits could continue without risking a bad Supreme Court ruling, or even the backlash engendered by a good one.

More. Dale Carpenter analyzes what’s wrong with the Sixth Circuit decision (with links to earlier posts in his series of critiques).

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Supreme Court’s Go-Slow Approach

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The U.S. Supreme Court has now turned away appeals from five states looking to maintain their prohibitions against same-sex marriage, effectively legalizing gay marriages in those states and presumably some others but also leaving the issue unresolved nationally. As Fox News/AP report:

The justices rejected appeals from Indiana, Oklahoma, Utah, Virginia and Wisconsin. The court’s order immediately ends delays on gay marriage in those states. Couples in six other states—Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming—also should be able to get married in short order. Those states would be bound by the same appellate rulings that were put on hold pending the Supreme Court’s review. That would make same-sex marriage legal in 30 states and the District of Columbia.

As Justice Ginsburg signaled recently, it will likely take a split among the circuits before the Supreme Court decides to rule on whether any state can legally ban same-sex marriage. Otherwise, the issue will be allowed to proceed through the remaining circuits.

All in all, significant progress has been achieved and will continue to be made. And better no decision than a bad one. If and when one of the more conservative circuits, such as the 6th (Kentucky, Michigan, Ohio, Tennessee) or 5th (Louisiana, Mississippi, Texas), upholds state bans against marriage equality, the High Court will be forced, presumably, to weigh in. It’s widely believed that Justice Kennedy, always the swing vote between conservatives and liberals, would want to maintain his reputation at the leading judicial voice for equal rights as regards gay Americans. We’ll just have to wait a bit longer.

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Marriage Politics

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“[S]everal forces, political as well as demographic, may converge to render a presidential candidacy by [Rob] Portman, the Ohio Republican U.S. senator, as at least nominally viable,” writes Stephen Koff, Washington bureau chief for Cleveland’s Plain Dealer. About a potential run by Portman, one of a handful of GOP congressmembers who support marriage equality, Koff observes:

Key to this is the fact that a Portman candidacy could align with a U.S. Supreme Court decision that would end the legal and constitutional fight over same-sex marriage. Such a ruling could come by next summer, well before the Republican voters go to the first 2016 caucuses and primaries. …

Patrick Egan, a New York University political scientist who has studied public opinion and gay and lesbian issues in politics, said, “My sense is that in their heart of hearts, Republican Party leaders would very much like to see the issue of gay marriage taken off the political agenda for 2016 and beyond.”

A credible run by Portman would signal a profound shift in the GOP. However, as Koff noted, that would be predicated on a Supreme Court ruling that takes marriage off the political table. But last week, liberal Supreme Court Justice Ruth Bader Ginsburg said that if the appellate circuits keep finding a constitutional right to same-sex marriage (albeit in decisions that are invariably stayed), then there is “no need for us to rush.”

That could mean several years delay as each of the circuits address the issue. So, ironically, supporters of marriage equality (as opposed to those who would like to keep the issue brewing as a culture war hot point, for political mobilization purposes), should be hoping that the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) breaks ranks and upholds state bans on same-sex marriage, as law professor and IGF contributing author Dale Carpenter writes it seems poised to do. That would create a split among the circuits that would dramatically hasten the Supreme Court’s ruling on the matter.

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Slippery slope on the “Sister Wives” case? Not really

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Earlier this month a federal judge struck down parts of Utah law, distinctive to that state, that had made it unlawful for persons to cohabitate in what they consider polygamous relations. Various traditionalist conservatives immediately began saying “I told you so”: this new development was really just a logical next step down the slippery slope, and the legal advance of gay marriage has now begun to usher in polygamy, exactly as they predicted. A column by Jeff Jacoby in the Boston Globe conveniently summarizes the argument. Since I disputed this very question two months ago in these columns in an exchange with Mona Charen, I am happy to weigh in.

Unfortunately, Jacoby does not give readers a very precise account of the Utah cohabitation ruling. Judge Clarke Waddoups didn’t accord legal recognition to polygamous relationships as marriages — indeed, he made it a point that he was doing nothing of the sort. Nor did he cite Perry or Windsor. The effect of his ruling, so far as I have been able to tell, is to put Utah on the same general footing as other states as regards legal treatment of households like Kody Brown’s: they won’t face arrest or other legal sanctions for cohabiting with each other, but at the same time no legal recognition will be accorded to their marriages (beyond that of the first wife).

It’s true that the new opinion does cite Lawrence v. Texas, which struck down laws against gay sexual relations, and it would be fair to say that there is something of a logical connection (or “slippery slope”) between Justice Anthony Kennedy’s broad language in Lawrence, recognized at the time as capacious, and tougher judicial scrutiny of other laws that (like the Texas statute in Lawrence) criminalize nonmarital private adult sexual activity. But that’s not the same issue as legal recognition of polygamous marriages. If decriminalizing plural cohabitation — which happened a long time ago in most of the country, Utah aside– necessitated such recognition, wouldn’t we have seen some state slide down that slope by now?

Incidentally, Judge Waddoups actually relied in some of his reasoning (through complications I will not spell out here) on principles of religious freedom as explicated in earlier pro-religious-liberty decisions. I hope we aren’t being asked to worry about a slippery slope on that too.

P.S. I should have noted that this topic was aired in the comments section of a Steve Miller post above; see Tom Scharbach’s informative first comment in particular.

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“This law is no different. . . “

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The U.S. Olympic Committee is doing its best to tread a very fine line for Sochi:

The athletes are always going into countries with laws different than his or her own country. They’re going to agree with those laws in some ways, they’re going to disagree with those laws in other ways.  It’s our strong desire that our athletes comply with the laws of every nation that we visit. This law is no different.

It’s true that law, in the abstract, means roughly the same thing no matter where you are: It is the rules citizens and even visitors are expected to obey.  And because Olympic athletes by definition must visit many countries, it’s hardly unreasonable to expect that they should not intentionally break the laws of any country in which they compete.

But is the Russian law truly no different from any other law?  Certainly athletes at the Sochi games should not murder people or steal or commit rape.  Even laws that have less universal agreement should generally be obeyed, both out of respect and prudence.

The Russian law, though, prohibits propaganda.  In itself, this is an indication of illegitimacy, at least by modern standards.  The law also prohibits only propaganda of a very specific kind.  Here is the closest I have been able to come to an English translation of Article 6.21 of the Code of the Russian Federation on Administrative Offenses:

Propaganda is the act of distributing information among minors that 1) is aimed at the creating nontraditional sexual attitudes, 2) makes nontraditional sexual relations attractive, 3) equates the social value of traditional and nontraditional sexual relations, or 4) creates an interest in nontraditional sexual relations.

One of the cornerstones of law is clarity.  People must know, within reason, what the law requires or prohibits.  This law is a model of vagueness.  What are “nontraditional sexual relations?”  For that matter, what are “traditional” ones?  Can Russian TV run “Sex and the City?”  Discuss.

Still, we clearly know what the Duma and Vladimir Putin intended — Shut up about the gay rights.  More specifically, shut up in front of the children.

This a a modern spin to remove the stigma against laws about propaganda.  Everyone wants children protected.

But children are everywhere.  More specifically, any form of journalism in the modern world, from NBC to the internet, may be seen by minors, which means the practical effect of this law is to prohibit any public discussion of gay rights.  The invocation of children is superfluous to the goal of banning pro-gay speech.

And that equates exactly with prohibiting any chance of achieving gay rights.

Absent an explicit equal protection guarantee, minorities have little but speech with which to make their case.  By definition, minorities must persuade a large number of the majority if they are to have any peaceful political participation at all.  Majorities seldom change their minds just because.

The Russian propaganda law is ideally designed to prohibit not just Russian discussion of gay equality, but to make sure it doesn’t happen when Russia is on the world stage.  At its best, this law is little more than Don’t Ask Don’t Tell.  At its worst, it is the first step toward a set of Nuremberg Laws for Russia’s lesbians and gay men.

This makes it not just important to mock the law, it makes it imperative.  However, that can be done respectfully, even joyously.  Rainbow fingernails? Perfect. Holding hands?  Sweet.  These and hundreds more small gestures skirt the law without violating it.  Maybe the rainbow fingernails are a fashion statement.  And holding hands is just holding hands, right? Heck, in post WWII Russia, this was a postage stamp!

The discussion of gay equality in Russia has a long way to go, but reliance on state control of information will not help it be seen as a modern nation.  It will be uncomfortable for Russia’s population to experience, within its borders, the increasing support among heterosexuals for gay equality.  But there is no wishing — or legislating — away that conversation.

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Roger Parloff on Supreme Court politics

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Did Justice Kennedy plan to write a sweeping Perry opinion until nervous liberal justices yanked the standing rug from under him? There’s been speculation to that effect ever since the Court’s big day, but now Roger Parloff of Fortune offers circumstantial evidence in the form of passages from Kennedy’s Windsor opinion (and Scalia’s dissent). Excerpt:

…it’s possible, and I think likely, that when Kennedy realized he wasn’t going to get to write an opinion on the merits in Perry he at least imported into the DOMA ruling some of his thoughts bearing upon how cases like Perry should be decided.

How can I possibly say that? Kennedy’s diction throughout his DOMA ruling (including the passages from it that Scalia quotes so bitterly) often evokes that of the briefs filed on behalf of the Perry plaintiffs (the same-sex couples eager to marry in California) more than that of the briefs filed on behalf of Edith Windsor, the plaintiff in the DOMA case.

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