Windsor, Paul Clement, Legal Ethics, and the Folly of Originalism

As you no doubt know, this past week two major gay rights cases were argued before the United States Supreme Court.  The first of these cases, Hollingsworth v. Perry, is the case that challenged Prop 8, California’s 2008 marriage equality ban.  While there is much to say about Perry, I will save my thoughts until that case is finally decided one way or another.  Instead I would prefer to talk about United States v. Windsor, the second case that was argued, and in many ways the more important of the two.  Windsor challenges Section 3 of the Defense of Marriage Act (DOMA), the part that limits federal recognition of state marriages to heterosexual couples.  Windsor is the less grand of the two cases and far less modest in terms of scope, but it a step in a well-developed legal strategy and a more likely winner.

Edie Windsor, now an octogenarian, married her long-time partner Thea Spyer in Canada in 2007 after being together for over forty years.  Because they lived in New York, their marriage was fully recognized by the state government and treated as equal.  Thea suffered from multiple sclerosis, and Edie was her caretaker.  When Thea died, Edie was assessed over $360,000 in taxes on Thea’s estate by the federal government–taxes that would not have been assessed had Thea been Theodore.  Edie Windsor won her case at trial and again on appeal.  Both lower courts declared that Section 3 of DOMA was unconstitutional.

This case (and several like it that are currently before federal courts) has an interesting twist to it.  Whenever a federal law is challenged in court, the Executive Branch (usually through the Justice Department) defends it.  This time however, the President himself declared DOMA unconstitutional and refused to defend it.  In fact, the Justice Department went so far as to argue on behalf of Edie Windsor at the Supreme Court.

While it is exceedingly rare for the President not to defend a federal law, it is also not unheard of (contrary to the impotent fit that the Court’s conservative Justices threw at oral argument).  However, if DOJ refused to defend DOMA then that put the case in an odd position.  Having won at trial, Edie Windsor could not appeal.  Which meant that someone had to appeal in order to bring the case to the Supreme Court.  This is where Congress came.  Because the House of Representatives is controlled by Republicans, the House, through its falsely named and unfortunately acronymed Bipartisan Legal Advisory Committee (BLAG), hired a high-powered, high-profile attorney named Paul Clement and paid him big money to defend DOMA.  The Senate, controlled by Democrats, did not join the challenge.

Whether BLAG is allowed to defend the case is an open question, and there is a question about whether the Justices may dismiss Windsor on standing.  Standing is legalese term for the right to be a part of a case.  Unless you are a legal nerd, this is all very dry and boring, so I won’t waste your time with it other than to say that the issue is whether BLAG is an appropriate party to represent the government on appeal.  BLAG says yes, Edie Windsor’s attorneys says yes, DOJ says yes, but the Supreme Court wasn’t sure.  They asked a Harvard law professor to argue against standing, and then tore her arguments to shreds.

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For the purposes of this post, my focus is less about how Windsor will turn out, but rather the man who argued against it, Paul Clement.  Clement, a man whom I have written about before, is probably the most famous Supreme Court advocate working today (this is a big deal in legal circles).  He has argued over 50 cases before the Court and is a dynamic presence at the lectern.  He is smart, quick on his feet, and clearly respected by the Justices.  In the George W. Bush administration, Clement was initially the Principal Deputy Solicitor General and then in 2004 was named Solicitor General.†  (Ironically the man he succeeded, Ted Olson, was arguing on behalf the gay couples in the Prop 8 case.)  I also suspect however, that Clement is a partisan hack who lacks scruples.

Clement is not only steeped in the traditions and quirks of practicing before the Supreme Court, he has the an enviable conservative pedigree.  He graduated from Harvard Law School and was an editor of the Harvard Law Review (I believe the year that now-President Obama was in charge).  After law school, he clerked for Laurence Silberman at the DC Circuit and then Antonin Scalia at the Supreme Court–two of the most famous conservatives jurists in the country.  He was an associate at Kirkland & Ellis, then chief counsel for a subcommittee of the Senate Judiciary Committee, and then became a partner at King & Spaulding.  This was before he left to go to the SG’s office where he famously argued major terrorism cases.  After returning to private practice he was the natural choice as counsel for the opponents of Obamacare.  No doubt his Federalist Society dues are paid through 2025.

Yet for someone as accomplished and respected as Clement is, he has also lost a lot of very high-profile cases–the terrorism cases and Obamacare being the most high-profile.  Infamously, while at the SG’s office, Clement told the Justices that the United States does not torture, and within a week, the Abu Ghraib pictures were released.  (It is a wonder he was allowed back in the building.)  Clement’s win-loss record though is not a knock against him; conversely, that he has appeared so many times is a sign of his talents.  What people, especially–but not exclusively–non-lawyers, tend not to understand is that the Supreme Court is a lawmaking body, same as Congress.  The Justices themselves obfuscate their role by saying stupid things like “the job of a judge is to be like an umpire and call balls and strikes.”  Or they hide their role through judicial philosophies like Originalism, the idea that the Constitution should be interpreted as the Framers would have done in 1789.  No, the Supreme Court makes law.  When it comes to Constitutional Law, they ostensibly do as little as possible out of a false humility–an unelected body that never faces the will of the populace should not make sweeping judgments (until a majority wants to make sweeping judgments).  The point is that while it is supposed to be Clement’s job to persuade a majority of the Justices to his side, the truth is that the Justices make their own decisions based on policy and politics as much as law.

When Clement was hired by BLAG, he was a partner at King & Spaulding, Atlanta’s major law firm.  The hue and cry that rose up against King & Spaulding for taking the case however, was nothing that the firm had prepared for.  Corporate America, which surprisingly has been at the vanguard of gay rights, was quite vocal.  The rumors (denied by all but probably true) were that Coca-Cola threatened to withdraw as a client of King & Spaulding if the firm continued defending DOMA.  No matter how big King & Spaulding is; an Atlanta firm that loses Coca-Cola may as well sign its own death warrant.  As a result, Clement left the firm for Bancroft, a litigation boutique with a strong conservative presence.  For his decision to leave his law firm to continue defending his client, Clement was lauded as a hero.  That is one way to look at the story but I offer another.

Most likely, Edie Windsor will win her case, and Section 3 of DOMA will be struck down, probably 5-4.  There are no guarantees that the Justices’ opinion will do much to help the LGBT rights movement in the next case, but all signs point to Section 3 being dead (yes, the common wisdom is that one can never tell from oral argument, but Obamacare aside, that is not actually true).  This has been the writing on the wall for some time.  The federal courts that have heard Section 3 cases have been near unanimous in finding for gay plaintiffs.  The House Republicans may want to defend DOMA, but that does not make it a winner.   Everyone deserves representation, but that representation does not mean a day in court–it means that the lawyer has to give his client the best advice possible.  There are several issues with Windsor that make BLAG’s side the loser: (1) standing; (2) constitutionality; and (3) defensibility.

I mentioned the standing issue above.  As for constitutionality, Section 3 is flat-out unconstitutional whether it be on Equal Protection grounds or federalism grounds.*  Finally there is the lack of defensibility.  Clement abandoned the usual defense, the infamous “parade of horribles” which compares gay relationships to pedophilia, polygamy, and perversions.  This was not done out of the kindness of his heart; the Supreme Court has made it clear that this argument will not win the day.  Without it however, Clement lacked the most potent weapon in his arsenal.  As a response, he came up with two new arguments: (1) Congressional intent in creating DOMA was not discrimination, it was for uniformity; and (2) gay couples don’t need marriage because they cannot accidentally get pregnant.  In other words, in this latter argument, gay people are too responsible, whereas those irresponsible heterosexuals need added protections (taxes, Social Security, etc.) because otherwise they will not protect the many accidental babies they irresponsibly produce.  This latter argument is so ridiculous that I cannot even remember if it was brought up in Court.  The former argument is an outright lie.  Congress was not only open about its discriminatory intent in creating DOMA, Congress was proud of it.  I have never heard Paul Clement reduced to such babbling as when Justice Kagan ambushed him with the actual Congressional Record that stated that in creating DOMA, “Congress decided to reflect and honor collective moral judgment and to express moral disapproval of homosexuality.”  How he was unprepared for that attack is beyond me; even a bad or inexperienced lawyer would have been aware of it.

Clement’s performance at oral argument betrayed his dishonesty and that of his side.  Sticking to the idea that DOMA was purely a marriage uniformity act, Clement argued, “We don’t want somebody, if they are going to be transferred in the military from West Point to Fort Sill in Oklahoma, to resist the transfer because they are going to lose some benefits.”  The gall of this argument is infuriating.  First of all, there is the obvious question: why shouldn’t someone resist a transfer to a place that treats his or her marriage as invalid?  Besides which, these are not merely “some benefits” that a gay couple will lose, but in fact quite substantial ones.  Moreover, his argument is entirely disingenuous.  In 1996 when DOMA was passed, Don’t Ask Don’t Tell was still effect–meaning that if a gay or lesbian person in the military asked for federal marriage benefits, he or she risked certain discharge.   In 1996 this would be especially risky–the first civil unions were not enacted until 2000 and the first same-sex marriages did not begin until 2004, and all previous attempts to attain legally recognized same-sex unions failed spectacularly.  (Furthermore, DOMA has no sunset provisions; Congress never expected it to end and had to plans to reevaluate it.)  Finally there is the converse uniformity question: if Congress was so concerned about uniformity why not declare that a legally recognized same-sex union must be recognized by every state (the complete opposite of DOMA)?  The answer is that uniformity was clearly not the motivating factor, animus was.  And animus as a motivating factor does not pass even the Supreme Court’s most lax standard of review.

So given that there is a standing issue, two issues of constitutionality, and no legitimate defense, why would Clement take the case to court rather than counseling BLAG to drop it?  Well, there are two answers.  The first is that I do not believe there is a conservative, reactionary cause that Clement will not gleefully defend.  For all his acumen, he is at heart as much a hack as any politician.  The second, and probably more important reason is that Congress has spent millions on this case.  Clement’s hourly rate is not cheap, and any case that goes to the Supreme Court will have a very large legal bill–which is why the Supreme Court takes on a very large number of cases involving multinational corporations.  Unlike corporate cases though, the DOMA defense is footed by the taxpayer.  While the millions Clement’s firm is currently earning is a mere drop in the fiscal bucket, to spend so much on an unwinnable battle comes across as rank hypocrisy from the party that fashions itself as the one of fiscal responsibility.

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Having torn apart Clement for a lack of scruples, I again acknowledge that the Supreme Court is a lawmaking body not truly bound by anything (or as I heard one respected lawyer say, “The law is all crap.”)  Ergo, even though the law seemingly demands that the Court overturn Section 3, that is no guarantee.  But even with the most conservative-leaning Court since the early New Deal days, it is still hard to imagine that Section 3 will survive.  If for no other reason, very few Justices want to go down as the next Roger Taney or James McReynolds, Justices remembered (if at all) for being on the wrong side of history.

Then there is Antonin Scalia.  In the stately, staid world of the Supreme Court, Scalia has been throughout his term the spark plug.  He is vocal, acerbic, witty, and he takes his one-man show outside of the Court’s marble temple (i.e. speaking engagements).  His written opinions are equally acidic and are written to play to the gallery.  Scalia is smart, and he wants people to know it.  In the past few years however, his act has become embarrassing–he publicly called out the Obama Administration for its role in the political realm, which is practically unheard of.  He called the Voting Rights Act “a racial entitlement“–as though the right to vote was not the fundamental guarantee of a democratic country.  And we must not forget the ridiculous “Broccoli Horrible.”  But aside from perhaps abortion, the cases that seem to make Scalia the angriest have been gay rights cases.  Quite frankly, Scalia is homophobic and exhibits it with every comment he makes.  (Rachel Maddow’s comparison of him to an Internet troll is mean but quite correct.)

Windsor presents an added irritant to Scalia; it lays bare that his judicial philosophy of Originalism is merely a personal opinion with delusions of historicity.**  (This critique also applies to Clarence Thomas’s similar but more extreme original intent philosophy.)  Even if one accepted Originalism, the Framers of the Constitution (putting aside the revulsion they would feel about homosexuality) would perceive DOMA as blatantly unconstitutional.  In the Framers’ days, there was a limit to the federal government’s power, the Bill of Rights did not apply to the states, and the Commerce Clause was really about commerce.  DOMA would have been (and still is) an unjustifiable incursion onto the authority of the states.***  I have no difficulty however, believing that Scalia and Thomas will both abandon their slavish devotion to original intent, and instead vote to uphold arguably the most blatant Congressional overreach of my lifetime.

That Supreme Court is a political body, and I suppose no one should be surprised that the Justices and the advocates who come before them are political creatures.

Footnotes: 

† The Solicitor General (SG) is the lawyer who represents the United States before the Supreme Court.  The office of the SG is full of brilliant, talented, and ambitious attorneys who come from and are practically guaranteed to return to high paying jobs at enormous law firms.  Like Supreme Court clerks–which many of these attorneys once were–lawyers in the SG’s office are the cream of the cream of the crop and are highly prized commodities.  They are also ridiculously ritualized, something the Supreme Court Justices play into, not least by calling the SG “General” at oral argument (it’s a weird quirk, given that the “General” in Solicitor General is an adjective so the appropriate title should be Mr./Madam Solicitor General).  The most ridiculous of these rituals is the morning coat, which the SG traditionally wears when arguing before the Court.  (Former SG and current Associate Justice Elena Kagan opted against wearing it.)

* The federalism issue is that marriage has historically been defined by states and the federal government has historically honored that.  DOMA forbids federal recognition which means the state’s ability to define marriage is infringed upon.

** While Scalia pretends to care deeply about the original intent of the (deeply divided) Framers of the Constitution, he gives little heed to the (near unanimous agreement of the) Framers of the Civil War Amendments, which remade both document and country.  Nor does he care at all about the intent of modern legislators and legislative history when deciding about how to interpret of the constitutionality of modern legislation.  Perhaps it is because the Congressional Record is a very thorough legislative report whereas the information we have today about the Constitutional Convention is sparse and generally one-sided.

*** For my own part, I do not buy into a federalism argument.  To me this is about Equal Protection.

DOMA And The Federal Courts

First an apology.  It has been a month since I last posted anything, but I have a full-time job now, and therefore my time for writing is limited.

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The odious Defense of Marriage Act may well be on its last legs.  This past Thursday, the Second Circuit Court of Appeals (the one that includes New York) declared DOMA unconstitutional in Windsor v. United States.  Search far and wide, and you will not find a more compelling story than Edie Windsor’s (seriously, have a look), who was with her partner Thea Spyer for 44 years.  They married in Canada in 2007 and that marriage was recognized by their home state, New York (which now has same-sex marriage).  When Spyer died, Windsor was burdened with a tremendous federal tax burden on the couple’s estate–something like $350,000.  Had Spyer and Windsor been a married heterosexual couple rather than a married lesbian couple, no federal taxes would have been assessed.  However, Section 3 of DOMA prevents the federal government from recognizing same-sex marriages performed by any state.  Therefore federal tax law considered Windsor and Spyer merely roommates.

The Second Circuit in the strongest possible language, struck down DOMA.  This is not completely surprising, even though the judge writing the decision, Dennis Jacobs, was appointed by George Bush 41 and would never be mistaken for a judicial liberal.  No federal court that has heard a Section 3 case has found in favor of the government (all the more so since President Obama’s Justice Department refused to defend it on the grounds that DOMA is unconstitutional), and the cases have been coming from all sides.  This is due both to the sympathetic plaintiffs and the fact that DOMA should be as unpalatable to judicial conservatives for its abrogation of longstanding principles of federalism as it is to judicial liberals for its treatment of gays and lesbians.

The real surprise of Windsor though was that the Second Circuit in no uncertain terms stated that gays and lesbians are a protected class and that laws that are discriminatory against gays and lesbians merit a heightened judicial review.  In other words, the government cannot make up any reason that sounds rational in order to defend the law.  It has to be the real reason behind the law, and if either the motive for passage or the outcome after passage is discriminatory in nature, then there has to be a really good reason to explain that discrimination.  Since there is almost never a good reason, laws that face heightened scrutiny are almost always struck down.  The actual level of review applied by the Second Circuit was the so-called “intermediate scrutiny” which is the standard used for gender discrimination cases.  This is the level that the Justice Department also suggests for review.*

No federal court of appeals had ever definitively held that gays and lesbians are a protected class.  The Ninth Circuit danced around the issue a few years ago in a DOMA case and again in the Prop 8 case.  Earlier this year the First Circuit also struck down DOMA, but declined to apply heightened scrutiny.  Even the Prop 8 district court case, presided over by a gay man, evaded the issue of heightened scrutiny.  The Second Circuit opinion does not pull any punches though.

So next stop, the Supreme Court.  Right now a bunch of DOMA cases are working their way through the federal court system.  The LGBT right advocates have won all their cases thus far, but the big test is the Supreme Court.  And the Court pretty much has to take it.  A federal law was struck down, and a new suspect class was created.  Let’s hope the streak can continue.  The wind is at our backs right now, although nothing is certain until the Supreme Court has its say.

Footnotes:

*  It is not however, the most searching level of review.  That is called “strict scrutiny” and is primarily reserved for cases involving race.  This is really just a matter of semantics though; effectively when a law is faced with a heightened scrutiny review, it will be struck down regardless of whether a court claims to use either strict scrutiny or intermediate scrutiny.

On 8

When Perry v. Schwarzenegger, the since-retitled Prop 8 case, went to trial, it was videotaped.  Cameras in the courtroom is a vaguely controversial topic in legal and judicial circles, but the Ninth Circuit Court of Appeals established a pilot program for courtrooms in its jurisdiction that allowed for the video recording of cases, presumably those that were interesting (a rare occurrence as trials in general are duller than dull), which would be available to the public.

This kind of program is not without precedent; oral arguments from the Ninth and Second Circuit Courts of Appeals are available on C-SPAN (and geek that I am, I have watched some), but generally cameras in the courtroom are taboo.  The Supreme Court is the course the biggest culprit in keeping the courtroom free of video recordings, and the Justices steadfastly (and apparently unanimously) refuse to allow video cameras in even when Congress demands that they do.  David Souter famously told the Judiciary Committee they could have video cameras in the Supreme Court when they rolled them in over his dead body.  Personally, I am surprised that the Supreme Court even allows its oral arguments to be audio recorded, but I suppose it’s been there long enough (since Earl Warren’s day) that it’s now safe.  You can access the recordings if you are so inclined, and again, geek that I am, I have.

Therefore, it came as no surprise when the Supreme Court, possibly afraid that people might want to see how justice gets done in this country, granted the request from the Prop 8 proponents to keep the tapes hidden.  Now, it is true that there is nothing in the Constitution that mandates that trials and arguments must be recorded.  Nevertheless, it violates the spirit of the constitutional mandate for open proceedings to deny video cameras in the courtroom.  In the Internet Age, the only way to watch a trial is still to physically go to the courtroom. Unless you are a criminal law attorney or a judge, you probably cannot do that very often.  And if the case draws massive media attention, you have almost no shot of getting in.

Which brings us to 8.  Because the Perry tapes have been sealed away, possibly forever, Dustin Lance Black, the screenwriter of Milk fame, wrote a play about the Perry trial with dialogue largely taken from the trial transcripts.  The first reading was in New York and a second reading was recently staged in Los Angeles and was streamed live over the Internet.  Ergo, more people have “watched” the trial than would have done so had the actual recordings been made publicly available.  You can still watch it at a variety of sites, and I did so at Slate.  8 is a work of political theater, and this reading (which was rewritten a bit after the first) was performed by, among others, Brad Pitt, George Clooney, the recently out Matt Bomer, three cast members from Glee, Martin Sheen, George Takei, John C. Reilly, Christine Lahti, Kevin Bacon, and Jamie Lee Curtis.  Rob Reiner directed it, and no doubt the spirits of Carroll O’Connor, Gregory Peck, and Elizabeth Taylor blessed the show.

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First a word about my post title “On 8.”  I originally thought to call this post “No On 8,” which was also the slogan of the LGBT rights movement during the Prop 8 referendum.  It also would have hinted at some of the reservations I had watching the reading.  On the other hand, as a title, it is glib, which I did not want to be regardless of my feelings about 8.

I hate being the gay contrarian, but more than that I hate pretending.  I hate pretending that something is good just because I agree with the fundamental message.  I hate the idea that I have to go along with the group think and love Glee or Will & Grace (or pretend to) when both are terrible.  I especially hate the idea that I should be thankful to those shows because of this flawed idea that since that they have aired, straight people accept us more.  (The cause and effect in that thinking is backwards.  Those shows exist because homosexuality is more accepted in society not the other way around.)  I cling to the stubborn idea that good gay-themed entertainment is infinitely better than mediocre fare regardless of message or popularity.

I did not love 8.  The acting was generally very good, although criticizing acting in a hastily organized, staged reading misses the point.  This was not a performance, and there really was no rehearsal time (this reading was really just a dressed up fundraiser for Americans for Equal Rights).  Only Martin Sheen was a problem; he has gotten even hammier since his West Wing days.  For me at least, it was difficult to suspend disbelief because I have heard the real Ted Olsen argue cases, and he is quite a different personality.  Olsen is also very level and calm while Sheen over-emoted to the point of turning red.  Ted Olsen is many things, but Jed Bartlett he is not.  While Sheen tried to turn Olsen’s closing argument into a monologue worthy of King Lear, in my mind I heard Olsen speaking them, and that was more affecting.   Dignity trumps fireworks every time.  (On the other hand, John C. Reilly’s turn as the loathsome boob David Blankenhorn was incredibly funny, and although he too overdid it, in the context of the actual complete humiliation that David Bois handed to Blankenhorn at trial, it worked.)

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I admit that I am a very bad gay in that I don’t worship theater, so take my opinions of the show with that grain of salt.  There is something so artificial about theater that doesn’t exist in movies, and I really have a tough time with the artifice of plays.  It’s my problem not 8‘s, but it did affect my enjoyment.

I wish a lawyer, or someone at least familiar with a courtroom, had written this play.  This is not meant to disparage Dustin Lance Black.  I respect his work; I loved Milk and cried at the end.  But a trial has its own rhythms, its own patterns, its own language, and I don’t think Black understood that.  (No doubt there are a zillion lawyers out there who disagree with me.)  There was something about the temporal inconsistency of the script that was just off, no doubt reflecting how hard it is to turn a multi-day, multi-stage trial into an hour and a half theatrical work.  I wonder if a non-lawyer who has neither watched trials and oral arguments nor read courtroom transcripts would feel that disruption.  Once again, perhaps this is my problem and not Black’s.

What bothered me the most though was the script’s focus on the Perry plaintiffs.  In particular, the focus on Kris Perry and Sandy Stier and the adorable moppets who are their sons felt incredibly fake.  Or worse than fake, it felt like propaganda.  It’s hard to write this because I am writing about real people who are doing something incredibly brave (and risky), and whom in real life I admire very much.  But even though they are the plaintiffs, Perry is not about Kris Perry, Sandy Stier, Jeff Zarrillo, and Paul Katami.  They are merely the vehicles.  Just as in Lawrence v. Texas, Perry is about every gay and lesbian person in the United States regardless of whether they plan on marrying someone of the same sex.  The theatrical device of an everyman (in this case the four plaintiffs) just doesn’t work here.  The trial spoke for itself.

8 is too ambitious for its own good.  The original purpose of the production was twofold: (1) to find a way to transmit the visuals of the Perry trial since the video tapes have been sealed; and (2) to raise money for Americans for Equal Rights (Black is a founding board member of AFER).  Now it appears that there is a third purpose: to be made into a television movie for HBO that will win acclaim and Emmys by the truckload.  That self-conscious ambition hurts 8 on an artistic level.

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Maybe the problem is that 8 is not a compelling piece of theater because dramatically it is lacking.  I am not talking about the use of trial transcripts because the most effective parts of the show were from the trial and the least effective parts were when the play stayed from the transcript.  The problem is that in a battle between rights and wrong, which is what 8 is ultimately about, there is no compelling villain.  From a political perspective this makes sense, why humanize your enemy?  Because 8 is ultimately political, if cannot afford to make a villain someone the audience would secretly like.  From a dramatic point of view though, this is deadly.  What is Othello without Iago, Angels in America without Roy Cohn, or Paradise Lost without Satan?

Frankly, who would the gay rights movement want to build up?  Those who are opposed to the LGBT rights movement–James Dobson, Randall Terry, Tony Perkins, Pat Robertson, the evangelicals, the Catholic and Mormon Church hierarchies, the national Republican party, etc.–what do they offer?  What good does humanizing them do?  Nothing really.  From a dramatic point of view the only effective villain is Maggie Gallagher.  Ever since I read the Salon profile of her, I have been both fascinated and horrified.  Maggie, unlike the rest of he ilk, is intelligent, and surprisingly enough given how horrible she is, appears to have no actual animosity toward gay people.  Yet Maggie has completely forsaken empathy and humanity in favor of blind devotion to a cause.

It was not until I saw Jane Lynch portray Maggie in 8 with fire-breathing panache that I realized that Maggie is a 21st century Louise Day Hicks.  Hicks was a Boston politician, and the chairwoman of the all-powerful Boston School Committee in the 1960′s.  Under her leadership, the Committee resisted integrating the deeply and unfairly segregated Boston inner-city schools, a resistance that only intensified after the Garrity decision.

When the Garrity decision was announced, Hicks founded ROAR (“Restore Our Alienated Rights”), the primal scream of rage against integration from the Boston Irish.  Unsurprisingly–and with good reason–Hicks and ROAR became the face of Boston racism.  The irony though is that it is unclear if Hicks herself was racist.  J. Anthony Lukas, in his masterful book Common Ground, the classic book about school integration and race relations in Boston, suggests that Hicks was not racist (as opposed to George Wallace or Hicks’s allies at ROAR) so much as a consummate politician who knew her constituency and channeled their rage for her own political gain.

And that to me is more about who Maggie Gallagher is.  She is not a second Anita Bryant so much as a second Louise Day Hicks, someone who sold her soul for politics.

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There is one final problem with 8, and that is the self-congratulatory nature of the people behind it.  I watched Rob Reiner and Dustin Lance Black say that this is the final leg of the race that is the civil rights movement, and my jaw dropped in shock.  This speaks to an incredible myopia, which is I am pretty sure is not how AFER sees the struggle.  I wonder if AFER will still exist when the marriage fight is won.  That isn’t the last hurdle even if it is made out to be.  Civil rights is an ongoing struggle that will change and mutate with each generation.

Perry is not the end, but rather the end of the beginning.  For years now the groundwork has been laid; everything up until now has been prologue for the fights that are to come.  It was important and necessary, but it was merely the start.  This year, marriage laws passed by Washington and Maryland will be up for referendum; activists in Maine have gotten marriage onto the ballot in that state; New Jersey’s governor has vetoed a same-sex marriage bill there, and his veto needs to be overturned; preparations must be made in California in case the Supreme Court overturns Perry; the victory in New Hampshire was not close, but it is still no reason to relax; there is movement to try to get the same-sex marriage ban in Ohio removed; and bans on same-sex marriage are up for public referendum in Minnesota and North Carolina.  This is with the backdrop of the DOMA cases working their way through the courts, a bill to repeal DOMA in the Senate (which won’t pass a filibuster and won’t get approval from the House), the fights for ENDA, the Student Non-Discrimination Act, housing equality, immigration reform that treats same-sex couples fairly, transgender rights, benefits for the same-sex spouses of federal employees, and overturning same-sex marriage bans in the majority of states.

No, we are not in the last leg.  The fight has just intensified.  The Great Work begins.

A Question For The Supreme Court

If the American Care Act is unconstitutional, then how can the Defense of Marriage Act possibly be justified?

Lawrence Revisited

A tempest in a teapot has emerged in legal circles over the past week.  Dale Carpenter, a libertarian/conservative, gay law professor at the University of Minnesota Law School, published his new book, Flagrant Conduct,* which details the story behind the seminal gay rights case Lawrence v. Texas.  Lawrence is a case which I have many reservations about, but I have been waiting for a book like this since the Justices announced their decision in 2003, and I cannot wait to read it.  I also have reservations about Carpenter, but I suppose it could only be he who wrote the book, primarily because he eviscerated the gay rights movement’s most cherished myth about the case–John Geddes Lawrence and Tyron Gardner, the interracial couple who were arrested for having sex in their home, were (1) not a couple, and (2) not having sex when they were arrested.

Carpenter’s book received surprisingly little attention on the gay blogs until a bombshell hit; Dahlia Lithwick of Slate wrote a very positive review of the book for The New Yorker where she discussed at length the truth behind Lawrence.  Although Lithwick insinuated that the lawyers behind Lawrence were somewhat disingenuous about presenting the facts, she (and Carpenter too) was clear that there was nothing dishonest in the case made to the Supreme Court.

The first angry response came from Kevin Cathcart, the Executive Director of Lambda Legal, and a man deeply involved with the Lawrence strategy.  His defense however, was very weak tea; it amounts to him claiming that the litigation team never misrepresented the facts–a completely different charge from the one Lithwick (and Carpenter) supposedly leveled at Lambda and Co.  It’s not a fair (or good) rebuttal, and I am not alone in noticing that.  Carpenter did his research, and Cathcart does not rebut anything factual.

Others have also jumped into the fray.  Ari Ezra Waldman, Towleroad.com’s resident law professor, took a macro view.  Siding with Cathcart, Waldman wrote that Lithwick did not understand “what gay rights are really all about.” His argument is that Lambda Legal and company simply took a case that could bring them victory and crafted the appropriate litigation to put the best facts forward (as any good lawyer should).  Waldman is a bit in love with his own writing, and it is sometimes difficult to get his point, but his (stripped down) argument is that it wasn’t so much Lawrence and Gardner who were the focus of the case, but rather gay people as a whole.  In this he is correct.**  Where Waldman is incorrect is in claiming that Lithwick misunderstood this, which is not true.  A close reading of her New Yorker review indicates that she very much gets this.  For his part, Waldman fails to comprehend that Lithwick is not evaluating legal strategy; she is reviewing a book about the Lawrence litigation.

In contrast, on Salon, Linda Hirshman takes a micro approach and focuses completely on Lawrence and Gardner in a blog post provocatively titled “Lowlifes deserve justice too.”  Hirshman argues that it is rare for the perfect plaintiff to appear, and almost never in a criminal case, which Lawrence was.  This is something Lithwick discussed in her review.  Because of issues such as child custody and employment, gay couples who would otherwise be “perfect plaintiffs” would not (and indeed could not) get involved.  Hirshman, like Waldman, is correct in the points she makes, but she completely misses the point of the entire controversy.  The issue is not whether Lawrence and Gardner were the best of all possible plaintiffs (clearly they were), but whether their lawyers represented them honestly.

I cannot comment on Carpenter’s book, not having read it, but I do feel secure when I say that everyone from Lithwick onward has completely missed the most important point about Lawrence.  It had nothing to do with John Lawrence, Tyron Gardner, or their lawyers and everything to do with the nine Justices of the Supreme Court.

The implication behind the debate between Lithwick and her defenders is that the Justices cared about the facts of the case.  They did not.  Nor does this debate give the Justices enough credit.  Each one of them was at one time a lawyer, and all of them had served as judges for years.  They all understood how lawyers write briefs.  Moreover, whatever bad facts the attorneys for Lawrence and Gardner wrote in the briefs, the Justices had seen much worse.  Waldman was right when he wrote that all gay people were on trial, but he failed to take that idea to its logical conclusion; the Justices also understood that all gay people were on trial.

Courts are law-making bodies.  We hear foolish arguments about courts as “super legislatures,” but the truth is that courts, in addition to being interpreters of the law, are a check on the tyranny of the majority.  That is why federal judges are given lifetime tenure and their pay cannot be decreased–so that they are not pressured when they have to make tough decisions.  People tend to forget–or ignore–that court-made law is also law, and it always has been.  It has been this way since Marbury v. Madison and probably even earlier.

In 1986, at the height of the AIDS crisis, a majority of the Supreme Court in Bowers v. Hardwick pushed back on the Warren Court and sexual revolutions.  Perhaps allowing a distaste for homosexuality to get in the way of what was correct both morally and legally, 5 Justices found no constitutional right to adult, consensual, homosexual sex even in the privacy of one’s bedroom.  In the decade following Bowers, six of the nine Justices stepped down and were replaced.  Some of those replacements were more inclined to be friendly toward gays and lesbians both personally and in their jurisprudence.  Concurrently, a massive education campaign began, which penetrated even into the halls of the Supreme Court.  One of the Justices in the Bowers majority (Lewis Powell, who had stepped down in 1987) publicly admitted that he made a mistake, while another (Sandra Day O’Connor, who remained on the Court through Lawrence) privately felt the same.

In 1996, the new Supreme Court got its first chance to signal that it was ready to overturn Bowers in a case called Romer v. Evans.  Although Romer did not directly overrule Bowers, it was practically a plea to gay rights advocates to bring a case that would allow the Court to do so.  One Justice, Antonin Scalia, was especially annoyed by this, and if you thought his dissent in Lawrence was scathing, you haven’t read his Romer opinion.

With Lawrence, the Supreme Court got the case it was looking for, and (like Congress in 2010 with Don’t Ask Don’t Tell) a majority overturned the earlier law.  Four of the five justices in the majority opinion joined the Court after Bowers, including the opinion’s author Justice Anthony Kennedy.  The fifth Justice, John Paul Stevens, had been in the Bowers minority.  O’Connor, not wanting to lose face by publicly admitting she was wrong, wrote a concurrence that actually went beyond the majority in terms of protection for gays and lesbians, but did so from a different legal avenue.  In other words, the majority opinion said there is a fundamental right to private, adult, consensual homosexual sex; O’Connor said, there is no such right, but because straight people would not be arrested under such law, it unfairly targets gay people and for that reason is unconstitutional.  Both the Lawrence majority and O’Connor’s concurrence were about gay people as a whole.

When a case gets to the Supreme Court, it is no longer about the parties involved; it is about the principles.  That is why in the end, Lawrence and Gardner themselves made very little difference.  That is also why gay rights advocates were, and to some extent still are, so nervous about Perry v. Brown, the Prop 8 case.  The question is not whether the Justices will be swayed by the stories of four upstanding plaintiffs; the question is whether the Justices feel that now is the right time to start moving ahead with same-sex marriage.
Footnotes: 

* There are three types of books about Supreme Court cases.  The first is a book about a specific case, how it came to be and how it came before the Supreme Court.  Call this the Gideon’s Trumpet paradigm after Anthony Lewis’s famous book about Gideon v. Wainwright.  This is the kind of book that Flagrant Conduct is.  The second type of book is a history of a movement, which, for obvious reasons, is far longer and much more dense.  The most famous example of this kind of book is Richard Kluger’s Simple Justice, which details the Civil Rights Movement’s legal strategy culminating in Brown v. Board of Education, although Brown is neither the beginning nor the end of the book.  For the gay rights movement, there is no Simple Justice equivalent, but we are not yet at the point where such a book can or should be written.  Finally there are the biographies of the Justices themselves, almost always written after their deaths and after their papers have been opened to researchers.  Only one of the Justices who heard Lawrence has died, and while three have retired, no books are forthcoming in the foreseeable future.

** I make a similar point in another blog post that is currently in the editing process.  The Lithwick affair cropped up while I was writing that post, and I felt like I needed to write about the kerfuffle before I could complete the post I had been writing.

Prop 8 Struck Down

In the 9th Circuit, which means a showdown at the Supreme Court.  I’ll write more after I read the opinion, and believe you me, I have much to say.

Same-Sex Marriage In New York: Courts Won’t Repeal It

This morning, as is my habit, I checked Towleroad to see what LGBT, LGBT-related, and homophobic news made the headlines.  More on the tragedy of Amy Winehouse’s death, the continuing saga of Dan Choi‘s lonely descent into insanity, and happy scenes from New York, where same-sex couples may now legally marry.

Of course news of happy gay and lesbian couples cannot go without an answer, and sure enough, the homophobes are in the news again.  A group calling itself “New Yorkers For Constitutional Freedom” (they always invoke the Constitution, but don’t actually understand it) has filed a lawsuit against the New York State Senate, the New York Department of Health, and the New York Attorney General.  The claim is that, well I couldn’t really follow the claims because they are nonsensical, but it has something to do with the state legislature not following its own Open Meeting Law and also Marriage Equality was unconstitutional because the legislators were bought off.  At its root, the claim can be summed up as “legislators wouldn’t talk to us before passing the bill, therefore the entire bill is unconstitutional.”

I could go through the complaint point-by-point and demolish it.  It’s very weak, and no court will strike down the Marriage Equality Law, especially for this tripe.  Chances are this case will not even make the state’s highest court,* let alone the United States Supreme Court (the plaintiffs included a federal claim, just in case.)

That this group has turned to the courts should put to bed this notion put forward by the homophobes that activist, unelected judges destroy our liberties by taking away the decision from an elected legislature who are the voice of the people.  Now that a legislature has spoken and passed a law, to whom do these people turn?  The courts.  (When both courts and legislatures speak, then these groups want a popular referendum, because “the people should decide.”  Can’t wait to see what comes next.)

There are so many reasons why this is a futile case, and more than futile, it is a waste of time and money.  No court will ever step in and interfere with the way a legislative body functions (or does not function) unless there is a legitimate constitutional issue involved.  Just as the US Supreme Court will never take on the US  Senate’s filibuster, the New York Court of Appeals will not touch the question of whether the New York Senate acted according to its own rules. Telling the other two branches of government how to function is the surest way for a court to lose its power.  Courts are not law enforcement agencies; they will not overturn laws because the process may or may not have been a Madisonian ideal of republican governance.

The complaints that these legislators were bought off is also going to be dismissed out of hand.  At its heart, what these homophobes are arguing before the court is that the state senators were lobbied by interest groups (and by the Governor and the Mayor of New York), which is somehow unconstitutional.  This of course would mean that the entire legislative process as it has developed cannot exist.  This means that every law the New York Legislature has ever passed is unconstitutional.  We may all hate lobbying (for the other side, of course), but it is most definitely legal and constitutional.  This claim is especially hypocritical because what the plaintiffs essentially say is, “Lobbying is unconstitutional except for the lobbying that we would have done, had the legislators listened to us.”  Most judges are capable of reading between the lines.

I am no expert on New York law, but I would question whether the plaintiffs actually have any kind of standing to bring this suit.  In legal terms, standing means that a person has been harmed and therefore has the right to sue for redress.  If there is no harm or potential for harm, you don’t get to sue.  Standing is a court-created doctrine, so every jurisdiction has its own quirks with regard to standing.  However, reading over the case, I am not exactly sure how these plaintiffs have been harmed.  I’m not sure they know.  Their only claim of harm is that the Marriage Equality law changed the definition of marriage.  This is not harm, it does not affect them in any way.  (There is a free speech claim thrown in there too, but it is weak to the point of not making any sense.)  These plaintiffs claim that the only way to fix this nebulous and undefined harm is to repeal the entire Marriage Equality Act, which is like shooting a mosquito with a bazooka. Courts hate overly broad solutions.

This is a frivolous case.  The lawyers who represent these plaintiffs are obviously hate mongers, but they are also either very bad lawyers or intolerably stupid people.  The truth is they don’t expect to win this case.  Look no further than what happened when similar people tried something similar after Washington, DC passed a marriage equality law.  This is not about repealing same-sex marriage through the courts; it is a huge fundraising effort.  This is a way for these vile plaintiffs to line their own pockets and the pockets of their hateful organization.  They are praying on people’s bigotry and fear, and no doubt there are people only too happy to let them.

The only way to overturn the law is to get the legislature to overturn it or pass a state constitutional amendment banning same-sex marriage (which will create its own set of legal issues like in California.)  The courts will never ever overturn a law if it is not barred by the constitution, no matter what the judges’ own personal tastes may be.

While this is going on, other hates mongers including NOM and the ADF are looking for New York state clerks who lost or will lose their jobs because they refuse to sign same-sex marriage certificates.  This law suit intends to overturn the Marriage Equality Law on First Amendment Free Exercise grounds.  This too will fail.  The Free Exercise clause is hardly used because it is pretty risky grounds for winning a case.  The courts have been clear that while the state (or your employer) cannot discriminate against you for your religion, your religion cannot be an excuse for not doing your job.  In this case, it is a clerk’s job to sign licenses for marriages recognized by New York law.  If a clerk cannot do that, then he or she needs a new job.  He or she is an agent of the state and must follow the law.

This case is a distraction.  It’s a dying dragon spewing its poisonous filth one last time.  It is doomed to fail.

Footnotes:

* Most states’ highest courts are called the Supreme Court, but not New York.  Their lowest (trial) court is the Supreme Court and the highest court is the Court of Appeals.  It’s very confusing for the new law student.

Same-Sex Marriage In Washington DC

In December 2009, the Washington DC city government legalized same-sex marriage.  Naturally, this attracted a lot of controversy because oh my God, gays can marry each other!!!!

Congress, to the chagrin of DC residents, can overturn any DC law that it does not like so long as it acts within a 30 day review period.  Being controlled by Democrats (and Nancy Pelosi in particular in the House) Congress did absolutely nothing, so the law stood.  In March 2010, the city began issuing licenses to same-sex couples.

Spearheaded by Bishop Harry Jackson, a group of clergy tried to get a the DC marriage law on a ballot for a city-wide referendum.  The DC Board of Elections refused to authorize the referendum claiming that it would violate the city’s Human Rights Law.  Jackson and his fellow clergymen appealed to the DC Superior Court which affirmed the Board.  The DC Court of Appeals did the same.   Jackson filed a petition for certiorari* to the United States Supreme Court.

On January 18, 2011 the Supreme Court issued a denial of cert, effectively ending Jackson’s farce.  There is no further recourse; same-sex marriage is staying in the District.

Having said that, I was surprised that it was big news that the Supreme Court denied cert.  I was positive there was no way the Court would take this case.**  While I have no doubt that (1) certain members of the Court are hostile to the idea of same-sex marriage, and (2) the Justices are very well aware that same-sex marriage cases are on the horizon, this was not a case that the Supreme Court was going to touch.  DC passed a law, and it has its own internal system for referenda.  DC laws are created by its own internal political structure, reviewable by Congress, and overseen by DC’s court system.  This issue was so DC-specific that nothing about it would affect the rest of the nation.  Supreme Court intervention would have been treading on the toes of DC’s government and Congress–something that the Court tries to avoid whenever possible.  And for what?  Even if the Court took the case, nothing about it would have applied outside of this one instance.  Such specificity is anathema to the Court (except for Bush v. Gore.)

So, it is completely not shocking that the Supreme Court denied cert even though all the major newspapers wrote about it, and all the LGBT bloggers blogged about it.  But do not read too much into what the Supreme Court did.  When the DOMA cases that are currently working their way through the Circuit Courts of Appeals finally reach the Court, well that’s when the battle really starts.

Footnotes:

* For those who don’t know what that means, here is an explanation.  Everyone has the automatic right to appeal a trial court decision to an appellate court.  However, in the federal system (and many of the states) you do not have the right to a second appeal–a second appeal usually being to the Supreme Court.  To get a case to the Supreme Court a petitioner has to file what is called a writ of certiorari (cert), which explains to the Supreme Court why that particular case is worthy of being heard.  The vast majority of these petitions are denied.  In legal jargon this is referred to as a denial of cert.

** Trying to figure out which cases the Supreme Court will or will not take is a fun parlor game, but it is not advisable for the lay person to gamble over.  The Justices will often refuse to hear cases that seem to require their input and take cases that no one expects them to.  I had a law professor, a former Supreme Court clerk, who, at her family’s Thanksgiving dinner in 2000, swore to anyone who would listen that there was no way the Supreme Court would hear the case that eventually became Bush v. Gore.

Thoughts On An Aging Judiciary

A few years ago, Chief Justice John Roberts railed against what he considered the greatest constitutional crisis facing the judiciary.  When one thinks about constitutional crises facing the judiciary, several things come to mind, including but not limited to the following: (1) an overreaching Congress that tries to shut the judiciary out its traditional oversight duties; (2) an Executive Branch that does not heed judicial decisions and defies the judiciary at every turn; (3) state governments that do not follow federal judicial orders; (4) random impeachments of federal judges for political rather than judicial reasons; (4) an American public that rises up in protest against the judiciary (spurred on by politicians with dubious motives) thereby depriving the courts of the legitimacy they need to survive; (5) rising vacancies on the federal bench due to Senate filibusters combined with an increasing caseload.

What the Chief Justice was referring to though was an alleged judicial pay crisis; he believed that federal judges were not being paid enough.

A quick Constitutional lesson.  There are two main types of federal courts–Article I courts and Article III courts (there are also Article IV courts and may also theoretically be Article II courts, but that is a different post for a different time and not really important now.)  Article I courts are created by Congress through Article I of the Constitution.  Article III courts are created by Congress through Article III of the Constitution.  That does not help much, I know, but stick with me.  Here is the difference.  Article I is the section of the Constitution about Congress, and Article III is the section about the federal courts in general and the Supreme Court in particular.

Article I courts are usually specialized (e.g. bankruptcy courts, military courts, the U.S. Tax Court).  Congress has the freedom to deal with these courts as it wishes.  Judges’ terms are limited to a certain amount of time.  There is no life tenure, and the judges’ salaries may be reduced.  In cases of life, liberty, or property, the rights protected by due process, Article I court decisions may be appealed.

Article III courts are what we normally think of when we think of the federal judiciary: the District (trial) Courts, the Circuit Courts of Appeals, and of course, the Supreme Court (also the Court of International Trade.)  Article III courts are the final word on all cases involving life, liberty, and property.  The judges of Article III courts cannot be fired and Congress is constitutionally forbidden from decreasing their salaries.  The only way to remove these judges is through the impeachment process–and that is very rare, although it did just recently happen.  The reason for such strict protections is clear–if judges are not dependent on Congress for their salary nor their continued employment, then they are more free to be independent-minded.  Constitutional battles always happen in Article III courts, and Article III judges are the ones who face constitutional crises.

Thus endeth the constitutional law lesson.

I have zero sympathy for the Chief Justice’s “crisis”, and there are two reasons why.  Reason #1:  Federal judges are paid a tremendous amount of money–it’s a six figure salary, and Supreme Court justices (who make the most) are paid over $200,000 per year.  They also receive generous pensions after they step down.  What the federal judges are angry about, or were angry about before the Recession hit (they may still be, but I have not heard anything about it lately), was that they were being paid significantly less than firm lawyers, and many of them came from large firms.  Furthermore, the judges see their clerks get firm jobs that pay far more than the judges’ own salaries.

Reason #2:  I firmly believe that those who go into public service should be paid less, especially when the position is one that involves power, public policy, and lawmaking.  Money should be the sacrifice for power.  While one can argue that my belief limits elected office to the wealthy (and I am prepared to debate that), federal judges are selected not elected–and selected for their connections not their personal wealth.  While it is sad that judges cannot prevent their college bound children from taking out loans in order to attend private universities, why should their children have advantages that the butcher’s children or the steelworker’s children do not?  If judges cannot handle that sacrifice, then by all means they should go into private practice.

The Chief Justice and every other judge who speaks about this calls this theoretical exodus of federal judges a brain-drain of the judiciary (“our best and brightest won’t want to be judges”).  First, this is not true because while there have been some resignations, it is not nearly as widespread as the Chief Justice would have Congress believe.  Second, this reeks of elitism.  The federal judiciary is made up of a disproportionate number of graduates of the elite law schools.  Eight of the nine members of the current Supreme Court graduated from either Harvard Law School or Yale Law School (the one lone holdout, Ruth Bader Ginsburg, went to Harvard for two years but transferred to Columbia.)  Law is an extremely class/status conscious profession, and there is a belief that if you did not graduate near the top of your class from a top tier law school, you are basically worthless as a human being.

So no, I have no sympathy for the judges.  If they want to retire en masse, then fill their spots with people who would be grateful for both the jobs and the salaries.   There is no lack of applicants.

There is actually a constitutional crisis in the judiciary, in fact there are two.  One of them I briefly mentioned already: the federal caseload keeps rising but so do the vacancies on the federal bench. (Ironically the Supreme Court docket is shrinking.)  Yet because of the dysfunctional mess that is the Senate, more federal judges are not being confirmed, which is very short-sighted.  The vast majority of cases that appear before the federal courts are not major constitutional/social issues, particularly at the trial level.  While The appellate courts are a little bit different (and the Supreme Court is very different), the Senate has completely muddled the process to the point and the federal courts have been severely hindered.

The other major problem is that the judiciary does not police itself very well.  Because impeachment is the sole way to remove an Article III judge from the federal bench, these are effectively lifetime positions.  They cannot be fired; they have no bosses.  Corruption is not generally a problem (it is exceedingly rare), but the federal bench as a whole is getting older and older.  Judges generally have huge egos (think lawyers squared), and find it difficult to admit their fallibility and their mortality.  And never will they admit possible senility.  This article in Slate, but written for ProPublica, is a great piece about how exactly the judiciary is facing this problem.  Supreme Court justices have a history of serving long past what should be an expiration date (e.g. Stephen Fields, Oliver Wendell Holmes, Thurgood Marshall), but the federal judiciary as a whole faces the same problem.

There are some judges who are trying hard to alleviate the situation, but there needs to be far more policing among the federal judiciary in order to prevent a real constitutional crisis, not the one that the judges imagine for themselves.

Music Playing While I Wrote This: Oscar Peterson Trio “Nuages”; Nina Simone “Since I Fell For You”; Science Friday podcast.

Will DADT Repeal Cost In The Long Run?

I. Introduction

Don’t get me wrong.  I am extremely happy that Don’t Ask Don’t Tell was repealed.  The law was a disgrace 17 years ago, and it still is.  It was also extremely hypocritical: you could be gay and in the military, just not openly so.

The repeal of DADT is a sign of the growing power and visibility of the LGBT community, although apparently only when there is a vast Democratic majority.  President Obama has been far more supportive of the LGBT community than any previous President, particularly through Executive Orders and administrative action.  The Health and Human Services Department declared that all hospitals that get federal funding (most of them) may not discriminate against same-sex partners.  This is huge and hugely undervalued, especially by those who focus only on legislative (and judicially-imposed) change.

However, therein lies the conundrum.  Because the LGBT community made some impressive gains on the legislative and executive levels of government, I fear that this may adversely affect the way that the judiciary deals with LGBT civil rights claims.  The LGBT community still needs a judicial safeguard.  Legislative majorities change.  Presidents come from different parties.  It may be difficult to undo the gains that the LGBT community has made over the past two years, but it is not impossible, particularly at the executive level.  When the judiciary declares that a group is protected by the Constitution, that ruling is, for all intents and purposes, set in stone.  Without the protections of the courts, I worry about the future of gay rights, especially in the immediate future.  The repeal of DADT and the Matthew Shepard Hate Crimes bill from last year were important because there had never been significant federal level victories before.  On the other hand, in the grand scheme of things, these victories are fairly limited.

Courts have been historically slow to get in front of social trends.  However, starting in New Deal era the courts, particularly the Supreme Court started to change its position with regard to civil liberties.  This culminated in the Warren Court’s revolution of civil rights, of criminal rights, and of the role of the judiciary itself.  For once the courts were out in front of the other branches of the government.  This was however, hugely controversial, and the fallout (particularly post-Roe v. Wade) is still being dealt with.

II.  A Very Brief History of Civil Rights Law

To understand why the courts are important, one must first understand the source of the courts’ civil rights law authority: the 14th Amendment of the United States Constitution.  After the Civil War, Congress amended the Constitution to end slavery and bring about a measure of racial equality.  The 13th Amendment ended slavery.  The 15th Amendment guaranteed to black men the right to vote (the amendment that brought about women’s suffrage only passed in 1920.)  The 14th Amendment was something different though, a mini-constitution unto itself.  It is a very long amendment in five parts, but the most important section is the first which reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The three clauses of second sentence are the wellspring of all civil rights law.

The 14th Amendment was adopted in 1868.  Almost immediately afterwards the Supreme Court tried to nullify the protections of the 14h Amendment in a consolidated group of cases called The Slaughter-House Cases.  The legal analysis of The Slaughter-House Cases is very complicated, and you do not need to worry about it unless you are taking a Constitutional Law class.  The important takeaway is that for all intents and purposes, the first clause the “Privileges and Immunities Clause” was interpreted into virtual non-existence.  The Slaughter-House Cases was a disaster of an opinion, but in the ensuing decades, the Court continued to make a mess of both doctrine and plain English.  The Privileges and Immunities Clause was intended to be a panacea against oppressive state laws designed to strip former slaves of nebulous rights that the Framers of the Amendment could not envision.  Eventually, the Supreme Court was forced to reinvent the Privileges and Immunities Clause by reading its protections into the second clause of the 14th Amendment, the “Due Process Clause.”

Due process of law is exactly what you think it is: fair judicial proceedings.  You cannot lose your life or your liberty (freedom from imprisonment) in a criminal case or your property in a criminal or civil case without first going through a fair trial.  In the context of the 14th Amendment, the Due Process Clause was a direct repudiation of the South’s treatment of blacks.

Now you have to understand that before the 14th Amendment, the Bill of Rights limited only the federal government because of the fear of a central authority.  It turned out that the states could be even more brutal, so the 14th Amendment applied only to the states.  It gave a new avenue for federal oversight.  Before the 14th Amendment, a state criminal conviction could not be appealed to federal court because it did not touch federal law.  The Due Process Clause of the 14th Amendment theoretically invited the federal courts in as watchmen over the Southern judicial system (for decades this was more theory than fact.)

The Due Process clause specifically protects from an impermissible deprivation of life, liberty, and property.  Liberty however, is a tricky word, because it can mean so many things.   In the context of the Amendment, it meant freedom from imprisonment.  However, the Supreme Court decided it meant more than that; it meant fundamental fairness.  Now the Supreme Court gave itself the power to examine more than judicial proceedings.  It could examine every law that every state enacted and overrule the law if fundamental fairness was impermissibly abridged.  This is called “substantive due process,” and it is very controversial, because it is a power that the Supreme Court created for itself.

The Supreme Court created substantive due process well before the Civil War, but the 14th Amendment gave it a perceived legitimacy and a wider reach.  Starting at the end of the 1800′s and going through the New Deal, the Supreme Court decided that the most important part of substantive due process was to prevent government from interfering with private parties’ freedom to make contracts.  As a result, the Supreme Court struck down a wide variety of economic regulations, most infamously a series of worker protection laws.  This is called Lochner era jurisprudence after the most infamous case of that time, Lochner v. New York.  The Court only allowed a handful of laws to pass through, and only in the most extreme circumstances.  What the court disgracefully ignored was that “freedom to contract” was freedom for the employer only.  The workers had almost no power, and the poorer they were, the harder it was to find a job.  Employers took advantage of their strength and forced their employees to work long hours for little pay in often dangerous conditions (if this sounds familiar it is because undocumented workers are still dealing with this.)

During the early New Deal days, the Court’s willingness to strike down economic and labor regulation laws led to a showdown between the Court and President Roosevelt.  Roosevelt attempted to “pack the Court” by adding so many of his hand-picked judges to the Supreme Court that they would outnumber the conservative majority.  Roosevelt lost that battle, but won the war.  First, the Court ‘s swing Justice (Owen J. Roberts) began siding with the Court’s liberal wing to uphold the New Deal laws.  Following that, the old Justices began retiring (or dying), and Roosevelt appointed his favorites to the Court.  By the time Roosevelt died, he had appointed the Chief Justice and seven of the eight Associate Justices.

In 1938, as the Court approved the New Deal legislation, an undistinguished case about a federal milk law called United States v. Carolene Products Co. came before the Court.  The facts of the case are completely unimportant, but the Justice who wrote the opinion (Harlan Fiske Stone) added the most significant footnote in constitutional law.  The fourth footnote of the opinion stated that the Court would presume an economic regulation was constitutional and the opposing party had to prove otherwise.  However, when certain rights were affected, such as those listed in the Bill of Rights, then the Court would not be that lenient.  And when the law in question prejudiced against “discrete and insular minorities” who cannot turn to the political process for justice, well the Court was not going to say at that time.  In this footnote (known universally as “Footnote Four”) the Supreme Court sent out a very strong signal to the federal and state governments: “We’ll give you the benefit of the doubt for your economic laws, but when personal and civil rights are impinged, particularly with historically oppressed minorities, you better have a damn good reason for doing so.”

At this point, I need to stop the story to introduce the third clause of the 14th Amendment, the “Equal Protection Clause.”  From reading the text, it seems pretty self-explanatory.  And you would think the Supreme Court would get it right.  But the Court had a pretty mixed record.  Once in a blue moon they got it right (striking down laws that prohibited blacks from sitting on juries  or that discriminated against Chinese laundrymen in San Francisco.)  However, as with the Privileges and Immunities Clause, the Court did enough damage early on so as to negate the the Equal Protection Clause–most infamously in Plessy v. Ferguson, the railway car segregation case that established the insidious doctrine of “separate but equal” that would eventually be overturned by Brown v. Board of Education.

Footnote Four signaled that the Court was finally willing rethink the horrific damage it had done to the 14th Amendment.  Footnote Four also sowed the seeds of what would become strict scrutiny, the jaundiced eye that the Court uses when confronted with a law that either discriminates against a group or impinges upon a fundamental right.  But this being the Supreme Court, it took some time before they finally got it right.  The first time the Court actually used strict scrutiny, they got it completely wrong–in the Japanese internment case Korematsu v. United States.  When given the chance, the Court, by this time almost entirely made up of Roosevelt appointees, did not challenge the President’s authority and allowed the government to proceed with horrible, horrible racism under the guise of national security.  Korematsu is one of the Court’s worst decisions–an equal of Dred Scott and Plessy.

The Court effected the promise of Footnote Four with the desegregation cases that led to and included Brown v. Board of Education.  Following the success of Brown, other disenfranchised groups took their cases to the Supreme Court but with mixed results as the post-Warren Court became more conservative.  Race and national origin were classes that the Court protected with strict scrutiny.  Gender was also protected but not to the same extent.  Sexual orientation?  That is an ongoing question.  The Supreme Court has managed to dodge the question.  Rather than repeat myself, I would refer you to my earlier post about gay rights and the Supreme Court.

III.  Putting This Together

So why am I worried that DADT repeal has harmed the LGBT community in federal court?  It goes back to Footnote Four which outlined who gets protected.  The text in question is as follows:

Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious … or national … or racial minorities …: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

What is a discrete and insular minority?  The Supreme Court seems to imply that there are certain characteristics: race, nationality, and religion are specifically mentioned.  With the exception of religion (protected by the 1st Amendment, and therefore not germane to a 14th Amendment discussion) the distinguishing characteristics are immutable from birth.  Immutability is not enough though; the group in question also needs to be shut out of the political process.

And there is the problem.  Are gays and lesbians a discrete and insular minority?  Are they shut out of the political process?

With regard to the first part, the answer hinges on whether sexual orientation (and gender identity) is immutable.  While any LGBT person will tell you that he or she was born that way, there is a sizable group who refuse to believe that, science be damned (the Prop 8 lawyers brought in scientific evidence to their case specifically to address the immutability issue.)  More relevant though is whether a majority of Justices on the Supreme Court believe that sexual orientation is innate.  Reading judicial tea leaves is not an exact science, but last term one Justice appeared to give an answer, and it is not the one you think.

Justice Ruth Bader Ginsburg, writing for the majority in a case called Christian Legal Society v. Martinez wrote the following: “Our decisions have declined to distinguish between status [homosexuals] and conduct [homosexual sex acts] in this context.”  This one statement was a bombshell, and it did not go unnoticed.

A little background: Hastings Law School denied the Christian Legal Society (“CLS”) recognition for violating the school’s anti-discrimination policy by not allowing gays to join.  CLS argued that anyone could join so long as they did not partake in certain proscribed acts (including gay sex) and therefore their rules were not discriminatory.  Justice Ginsburg, writing for the majority, found for the law school.  In the sentence I quoted above she is essentially saying that gay sexuality is a fundamental part of being gay, therefore proscribing gay sex as CLS did was really a form of anti-gay discrimination (and the school could permissibly take action.)

A majority of Justices joined Justice Ginsburg’s opinion including Anthony Kennedy, author of Lawrence v. Texas, and unpredictable swing vote.  One Justice (John Paul Stevens) has left the Court since then and was replaced by Elena Kagan, whose record is, to this point unknown.  I am not an experienced Court-watcher, but I am a lawyer.  Even though this case did not touch on the constitutional rights of homosexuals, at its core it is a gay rights battle, and it gave an indication of at least one Justice’s thoughts.  She sees homosexuals as a distinct group (a discrete and insular minority) rather than a subset of the larger group who are defined by their actions.

So this is good, right?  Well… maybe.  The fact that Justice Ginsburg commanded the majority (5-4) is a very thing good.  This does not however, mean that the entire majority agrees with that statement outside of the context of the case (assuming Justice Kagan would have voted the way Justice Stevens did.)  I want to believe that every Justice who signed onto the majority opinion believes in Justice Ginsburg’s statement, but there is no way to be sure until the next case comes along, and one that directly impacts LGBT rights.  Again (and this is very important), this case was not about the fundamental rights or the constitutional equality of gays and lesbians.  CLS brought the case against the law school.  While homosexuality was at the center of the conflict, there was no federal question involving homosexuals.*

So what was the purpose of Justice Ginsburg’s statement if the case was not about LGBT rights?  Maybe she thought that the sentence was essential to her reasoning, but there is another explanation that has been put forward.  Sometimes a Justice will throw little “time bombs” in his or her opinion.  These time bombs are statements that lay the groundwork for a future case, that the Justice sees coming before the Court in the near future.  That next case will be either the DOMA case  from New England or the Prop 8 case from California.  What happens next is anyone’s guess.  If Justice Ginsburg did set a time bomb (which she probably did), it reasons that her disposition toward the gay litigants in both cases will be favorable.

Assuming the Court finds that homosexuals are a discreet and insular minority, there is another Footnote Four obstacle.  This is where DADT repeal is a potentially huge stumbling block.  Footnote Four specifically lists as an essential requirement to heightened scrutiny the inability to win fundamental fairness from the political process.  The only time a Supreme Court majority came close to finding that in the LGBT context was in Romer v. Evans, when the Court decided against a Colorado constitutional amendment because it effectively shut gays and lesbians out of the political process.

But now, the LGBT community is very much involved in the political process.  Several states have enacted marriage laws or civil union laws without court intervention.  For the first time there have been federal law victories: the Matthew Shepard Hate Crimes Bill and the repeal of DADT.  This would imply to some that the LGBT community is an active part of the political process, not shut out of it.

That however, is not the whole story.  DADT repeal should have been an easy piece of legislation, yet it barely passed, and only because of last minute maneuvering.  The hate crimes bill was buried in a defense spending bill that, at the time, the Senate Republicans were afraid to filibuster.  Both victories are also fairly limited in scope.  Sweeping community-wide victories like ENDA and a repeal of DOMA are impossible for at the next two years but probably more like two decades.  Marriage laws in Maine and California were overturned by popular referendum, New Hampshire’s marriage law an Wisconsin’s domestic partnership rights law may be repealed by the new legislatures, and three of the Iowa Justices who found in favor of same-sex marriage in that state were voted out of office just for that reason.  Losing all those battles shows a lack of political power.  The tide is still very much against LGBT people.  We still need the protection of the courts.

The question is when the next big judicial case comes before the Supreme Court, how will Justices on the fence view the minority status of gay people.  Thus far the Court has dodged the Equal Protection question.  Rational review is not enough, despite what President Obama thinks (and his conclusions about the Supreme Court’s LGBT-related jurisprudence are shockingly incorrect.)  Nevertheless, there are two definite votes (and probably four) on the Supreme Court who would say that the LGBT community does not merit 14th Amendment protections.  I am sure they would point to DADT’s repeal and say that is proof that the political system works.

Footnotes:

* The case was really about the rights of a school to set a blanket policy versus the 1st Amendment rights of CLS.  While the Court found for the law school in the abstract, the actual determination of the case will depend on whether Hastings applied its blanket policy equally or singled out CLS specifically.  That is Round Two, although it is no longer relevant for this post.

Music I Listened to While Writing This Post: Ella Fitzgerald “Bewitched, Bothered, and Bewildered”; Frédéric Chopin “Waltz No. 11 in G-Flat Major, Op. 70, No. 1″;