Misreading Windsor

Ever since the Supreme Court handed down United States v. Windsor last June, law professors and journalists have pondered over what it meant and criticized the majority’s perceived lack of clarity.  There are two major complaints: (1) ambiguous categorization; and (2) whether Windsor‘s holding relied on principles of federalism or Equal Protection.  

The complaint about ambiguous categorization in Windsor is a fair one.  When courts review laws that discriminate against a certain group, courts do so using a certain framework created by the Supreme Court to determine whether those laws violate the Equal Protection Clause of the Constitution’s 14th Amendment.  In most instances, the government–the defending party in such cases is always a governmental body–is given the benefit of the doubt and the law is upheld.  This is called rational basis review.  But when it comes to certain categories of people, the so-called “suspect classes,” the standard the government needs to meet is much higher, and therefore those laws are generally deemed unconstitutional.  This is called “heightened scrutiny.”  The major categorizations for suspect classes are race, gender, and national origin.

Sexual orientation is not one of the suspect classes that I named.  Despite the outcomes in Windsor and its predecessor cases Lawrence v. Texas and Romer v. Evans, the Supreme Court never explicitly said whether sexual orientation is a suspect class.  The judiciary, federal and state, has taken all sorts of approaches absent Supreme Court guidance.  In recent months, some federal courts, most notably the Court of Appeals for the Ninth Circuit, have looked at Windsor and decided that even though the Supreme Court was not explicit, overall jurisprudence indicates that gays and lesbians are indeed a suspect class.  This is the rationale behind the gay juror case that I addressed in my last post.

As I said above, this continued explicit guidance is a fair criticism.  I do not particularly agree with it, because I think the Ninth Circuit read the tea leaves correctly.  Nevertheless, I can understand the frustration and acknowledge its validity.

The other complaint though, I do not understand at all.  It follows as such: the Windsor majority left the judiciary in limbo because the Court did not distinguish whether Windsor was a federalism decision (i.e. whether the federal government unconstitutionally encroached onto states’ rights) or an Equal Protection decision.  This is important because when state bans on same-sex marriage come before courts, those bans will probably fail under an Equal Protection framework but succeed under a federalism one.  On Slate, Dahlia Lithwick and David S. Cohen co-wrote a column suggesting that Windsor is an Equal Protection decision, not because the Supreme Court wrote it that way, but because subsequent state and federal judges have unanimously interpreted it as such.  By Lithwick and Cohen’s count 18 of 18 court decisions (and 32 of 32 judges) have all come to this conclusion.  That unanimity is essential to Lithwick and Cohen’s thesis.  They posit that judges could have interpreted Windsor as a federalism decision, but because they are universally choosing not to do so, eventually nation-wide marriage equality is inevitable.

I don’t disagree with Lithwick and Cohen’s conclusions; Windsor is indeed an Equal Protection decision, and marriage equality is inevitable.  Where I disagree with them–and all the other law professors and journalists who have spilled much ink on this subject–is this misconception that the Windsor majority was unclear.  Windsor is not an Equal Protection decision because subsequent federal judges read it as such; Windsor is an Equal Protection decision because Windsor is an Equal Protection decision.  This is not a tautology; the Court’s methodology is in the text, and it is not hidden.  The reason that 32 of 32 judges have decided the way they did is because they can read.

I believe that the bulk of the Windsor decision comes not from the majority opinion, but from the dissents.  There are two dissents of note in Windsor, one from Chief Justice John Roberts, and the other from Justice Antonin Scalia.  (There was another one from Justice Samuel Alito, which amounts to, “I’m scared of new things because I don’t understand them, and I don’t like them.”  As such this dissent has been forgotten.)  Scalia’s decision is the more famous of the two, because it was written by Justice Scalia.  When he dissents, he fulminates with puffed up, operatic rage.  In his Windsor dissent, Scalia rewrote the majority opinion to apply to state laws.  Perhaps he thought he was being cutting, but to date at least four federal judges who ruled in favor of equality have cited his dissent as a basis for their opinions–classic benchslap.

While Scalia’s opinion is the more significant dissent, Roberts’s opinion is the reason why everyone is confused.  The Roberts dissent tried to limit the scope of Windsor by painting the majority decision as a federalism decision.  Significantly, none of the other dissenting Justices signed on to the Roberts dissent.  Scalia mocked it.  So why have so many law professors, pundits, and journalists wondered whether Windsor is federalism opinion?  Perhaps it is because John Roberts is a very smart man.  Perhaps it is because no one wants to believe that the Chief Justice of the United States deliberately misinterpreted a judicial opinion in a way unworthy of the cheapest political hack.  Perhaps it is because they need something to debate.  I have no idea, but they are wrong.

While at least three or four federal judges have gone toe-to-toe with Scalia, not even one has engaged the Roberts dissent.  Yes, they have heard federalism arguments, and yes, they all held that Windsor is not about federalism, but they have not refuted Roberts’s dissent so much as ignored it.  There is a reason for that, and it is not just that Roberts, whose opinion lacked hysteria, is a far less easy target to mock.

On pages 18 and 19 of the Windsor slip opinion, Justice Anthony Kennedy addresses the question about whether Windsor is a federalism opinion.  (Highlighting is mine, and I removed citations to previous cases, but otherwise kept the citation intact.)

Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. ““‘‘[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’’””

The Federal Government uses this state-defined class for the opposite purpose——to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.

Kennedy’s language is flowery, as is his wont.  Nevertheless, his meaning is quite clear.  This quoted section is the pivot in the legal reasoning.  Prior to this excerpt, Kennedy wrote in great detail about federalism principles, and how it has historically been the right of the states to define marriage.  Had he stopped there, Windsor would have indeed been a federalism decision.  But in the above excerpt Kennedy writes that it is not principles of federalism that are central to Edie Windsor’s case.  Federalism principles mattered in Windsor only because Congress’ violation of those principles in enacting DOMA signaled a suspicious and insidious ulterior motive.  That something, Kennedy concludes in the next section, was animus toward gays and lesbians, which is unconstitutional under the implied equal protection guarantees of the 5th Amendment.*

Scalia understood all this and would not let it go unchallenged.  He also understood, that if the judicially manufactured equal protection guarantees of the 5th Amendment applies to same-sex couples, then the next logical step is that the actual equal protection guarantees of the 14th Amendment must also apply.  The only possible outcome is for state bans on marriage equality to also fail constitutional scrutiny.  The Windsor majority may not have explicitly stated this, but their inherent message to the federal judiciary was equally loud and clear as Scalia’s overwrought one.  That is why all subsequent decisions have unanimously sided with marriage equality.


*  There is no Equal Protection Clause in the 5th Amendment; the Equal Protection Clause is unique to the 14th Amendment.  The 14th Amendment however, applies only to the states and not the federal government, which could have been a source of major embarrassment for a Supreme Court that wanted to combat discrimination.  The most famous use of the manufactured 5th Amendment equal protection guarantees is found in Brown v. Board of Education.  There were actually five cases collectively known as Brown, and one of those cases, Bolling v. Sharpe, came from Washington DC.  As Washington DC is not a state and under federal government control, the 14th Amendment does not apply.  Thus, the Warren Court used the 5th Amendment for the DC case and the 14th Amendment for the state cases .

Following The Supreme Court Decision In The DOMA And Prop 8 Decisions

Hopefully I can write a more thorough post after reading this opinions in full, but for now.  
1. The federal government has to recognize all same-sex marriages in states that offer them.
2. This means the immigration bill is by default going to have to recognize these couples.
3. It also means gay couples in the states that offer same-sex marriages have all the federal rights and responsibilities of marriage (including joint taxes).
4. Those states that currently offer marriage to same-sex couples are Massachusetts, Connecticut, Iowa, New York, Vermont, New Hampshire, Washington, Maryland, Maine, the District of Columbia.
5. And within the next few months this list will include Minnesota, Delaware, and Rhode Island…
6. And California.

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.


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.


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.


† 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.


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.


*  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.

Change At The Human Rights Champagne

It has been reported here, here, and here, and probably elsewhere, that Joe Solmonese will shortly be stepping down as the head of the Human Rights Campaign (HRC).  [Update:  It is official.]  For those not in the know, the HRC is the largest, most powerful, and best connected gay rights organization.  It aspires to be to LGBT rights what the NAACP was to the Civil Rights Movement, although HRC is a far more inside-the-Beltway organization than the NAACP was in the 1950’s.  HRC is also an extremely controversial organization within the LGBT community.

For most of the time I have been aware of HRC, the organization’s results have been tepid at best, and that is being kind.  For every victory the HRC could claim, a crushing defeat followed.  I suppose you could say that it has been one step forward five steps back.  For example, HIV/AIDS protections were included in the Americans With Disabilities Act in 1990, but then Congress passed Don’t Ask Don’t Tell and the Defense of Marriage Act in the Clinton Administration, which was allegedly gay-friendly.  And then there was the extremely painful night in November 2004 when 11 states banned either same-sex marriage or civil unions.  Many of us, myself included, also blame the HRC for being practically invisible during the ballots to overturn same-sex marriage in Maine and California.  Some may argue that this was outside of HRC’s scope, but I strongly disagree with that.  They were highly invisible during those battles, so even from a public relations point of view, they failed (along with every LGBT-rights group.)

HRC treads a thin line because it is supposedly party-neutral, but in reality that simply is not true.  The overwhelming majority of the LGBT community lies somewhere along the left-wing of the political spectrum–from moderately progressive to outright Maoist.  Yes, there are some exceptions like the Log Cabiners, and the useful idiots of GOProud, but for the most part, the LGBT community is firmly liberal, and therefore firmly Democrat.  With good reason too; Republicans have staunchly allied themselves with the religious right, people like James Dobson, Michele Bachmann, and Jerry Falwell.  People who have more or less called for the destruction of the LGBT community, even if they don’t say it in those exact words.  Therefore, HRC tends to skew Democrat.  Every time HRC tries to cozy up to the Republicans (for example suggesting that they might support the privatization of Social Security if same-sex couples were included), the backlash from the LGBT community is loud and severe.

HRC is simply not very popular among the larger LGBT community, and it goes beyond endorsing the occasional Republican or conservative idea.  The community, despite general political uniformity, is remarkably diverse in terms of economic, ethnic, and cultural makeup.  There is actually very little about the community that is similar, the idea of a “community” is little more than an umbrella group for historical outsiders who defy society’s gender definitions.  HRC has, with some justification, been repeatedly accused of being a group that caters primarily to the concerns of specific subset of that community: white, gay, economically secure men (in other words, the homosexual counterparts of the same people who have always been in charge.)  HRC’s annual black tie dinner–which costs a pretty penny to attend, but gets some very powerful and prominent speakers–only reinforces this image, as did HRC’s implicit support of an Employment Non-Discrimination Act that protected sexual orientation but not gender identity.   (The transgender community has had a long history of neglect from the gay rights movement.)  One of HRC’s associates/competitors, the National Gay and Lesbian Task Force, attempts to be so inclusive that it doesn’t actually do anything, which could suggest HRC’s elitist strategy is the right way to proceed.  On the other hand, an overwhelmingly Democratic Congress with a Democratic President could not pass even a watered-down ENDA, which shows exactly what the Democratic establishment thinks of HRC.

Nevertheless, since 2009, the gay rights movement has seen tremendous gains, and for the first time really these gains have been at the federal level as well as the state level.  There have been two major pieces of pro-gay legislation (the Matthew Shepard Act and the repeal of Don’t Ask Don’t Tell), and the federal agencies have become more aggressive and proactive at protecting LGBT rights, culminating in the Justice Department’s refusal to enforce the Defense of Marriage Act.  Additionally, a US-led coalition basically forced the UN, the epitome of inefficiency and homophobia, to declare gay rights to be human rights–for the little that such a declaration is worth.  No doubt HRC would like to take credit for that, and it has tried.  Not being privy to the Washington, DC corridors of power, who am I to deny HRC such credit?

But from where I stand, it looks like these changes happened despite the HRC not because of it.  HRC appeared to drag its feet, and Solmonese especially was hesitant to criticize a Democratic President who appeared unlikely to spend any political capital on the LGBT community.  The pressure, and therefore the change, actually seemed to come from grass-roots activists who were loud, angry, and unafraid to criticize (and, amazingly enough, from the Log Cabin Republicans whose lawsuit against DADT forced the President into action.)  From an outsider’s perspective, it was these people who made the Democrats fear for the first time that they would alienate a key constituency.  This may not be the truth, but in politics the perception is reality, and HRC appears feckless.

Whoever replaced Solmonese will have a full plate, particularly given how broken down the federal system now is.  One of the major questions though that the new leader must answer is whether HRC will actually lead or whether it will continue to sit back watch the change happen.

Paul Clement, John W. Davis, And Legal Morality

It was no surprise when the House of Representatives defended DOMA.  It was surprising that a big firm like King & Spalding (K&S) took the case.  Despite how horrible Corporate America can be, as a whole it is generally more progressive in attitude than the United States government and many states.  There are many reasons for this.  Corporations are responsible to shareholders not constituents; shareholders care about money, constituents care about social issues.

Although corporations may be myopic when it comes to short-term costs like environmental protections, they see far into the future when it comes to social issues because of the money that can be generated by tapping into affluent communities with expandable incomes (i.e. large segments of the LGBT community.) Conversely, LGBT-led boycotts have been quite effective since the 1970’s when Florida orange growers learned the hard way that aligning with Anita Bryant was bad for business.  Meanwhile the Southern Baptists failed when they boycotted of Disney for being too gay-friendly.

Furthermore, in the decades since Stonewall, more and more LGBT people have come out, and it turns out that they too are employees.  Corporations often want to keep employees happy, particularly those in high-powered positions.  Ergo, it is makes sense that Corporate America would as a whole be more gay-friendly than a government-run by politicians who need to win the bigot vote.

Big law firms like K&S are very much a part of Corporate America.  These firms tend to be gay friendly because there are gay lawyers who work there and gay law students who aspire to work there.  This is especially true in the major legal markets: New York, Los Angeles, San Francisco, Chicago, and Washington, DC.  Furthermore, these law firms depend on corporations to stay in business–corporations that want to appear as gay-friendly as possible.  That is why I was surprised when K&S took the case.  Representing DOMA would surely bring a fallout, not just externally, but internally as well.  The fallout was even more inevitable when it was leaked that all employees of K&S, regardless of whether they worked on the case or not, were unable to participate in any outside anti-DOMA activities.  That clause was unusual to say the least.

But as surprised as I was when K&S took the case, I am flat-out shocked that they withdrew today.  I cannot say I am displeased, but it is most certainly a self-inflicted wound.  It flies in the face of legal ethics.  If K&S didn’t want the case, they shouldn’t have taken it. Furthermore, while the LGBT community and its allies are cheering, the right-wing is fuming and calling this a new McCarthyism (ignoring their own support for the McCarthyism of the Tea Party, but that is neither here nor there.)  Finally, as a result of the firm’s change of heart, Paul Clement, the K&S attorney working on the case, quit K&S and joined Bancroft PLLC, a DC boutique firm.

The loss of Paul Clement is substantial for K&S.  Clement is a former Solicitor General, the government attorney who argues the position of the United States before the Supreme Court.  (Actually there is an office of about 20 attorneys who argue such cases, but the Solicitor General leads the office and argues the most high-profile of these cases.)  K&S hired Clement to build a competitive appellate and Supreme Court practice.  Very few private attorneys argue regularly before the Supreme Court; Clement will be one of them no matter where he works.  Now, not only has K&S lost Clement, it lost credibility before both court and client.

Clement wrote in his resignation letter:

My resignation is … prompted by the firm’s decision to withdraw as counsel for the Bipartisan Legal Advisory Group of the United States House of Representatives in defense of Section III of the Defense of Marriage Act. To be clear, I take this step not because of strongly held views about this statute. My thoughts about the merits of DOMA are as irrelevant as my views about the dozens of federal statutes that I defended as Solicitor General.

Instead, I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do.

Perhaps Clement secretly believes that DOMA is a terrible law that should be struck down.  Or maybe he believes it is a good law (Although it is telling that the firm he left for is not another large firm, but rather a small boutique made up lawyers who mostly served in the George W. Bush-era Justice Department.)   Legal protocol suggests that by seeing the DOMA case through to the end, Clement is acting properly.

The comparisons to the Guantanamo cases that some on the right are suggesting however, are misguided.  When the attorneys at big law firms took the Guantanamo cases, what they were doing was making sure that the law was applied equally.  In other words, the basic assumption was that the Constitution grants the right to habeas corpus and due process and the government was not properly applying the law.

In the DOMA case, the issue is whether the law itself is constitutional.  The Justice Department says no.  Basic morality says no.  And it would appear that the large law firms (and a substantial plurality if not majority of the legal community) also say no.  The proper comparison is less with Guantanamo cases than with the NAACP’s Jim Crow challenges of the 1930’s, 40’s, and 50’s.  And that brings us to John W. Davis.

Like Clement, Davis was a former Solicitor General.  Unlike Clement, Davis was a politician and the Democratic Presidential nominee in 1924 (he lost to Calvin Coolidge.)  Clement is a brilliant oral advocate, one of the finest, if not the finest, of his generation.  Davis was one of the greatest of all time.  He argued 140 cases before the Supreme Court.  Very few have argued more (Daniel Webster comes to mind.)

After he left government, Davis became a corporate lawyer in New York, and the law firm he joined still bears his name.  Davis continued to argue before the Supreme Court, many of his cases against the New Deal.  However, his greatest claim to fame, or more perhaps infamy, was his representation of South Carolina in Briggs v. Elliott, one of the five cases that came to be collectively known as Brown v. Board of Education.  Davis, a Southern Democrat by birth, let it be known that he believed segregation was morally and legally correct.  He passionately argued this position (he allegedly teared up during his oral argument), and believed he had won, even though his opponent was Thurgood Marshall and the Supreme Court had been consistently struck down segregation laws.

The Davis comparison is apt because defending DOMA is akin to defending segregation.  Both are unconstitutional and immoral forms of discrimination dressed in the trappings of law.  Only politics kept Jim Crow laws in effect, and only politics keep DOMA alive now.  Just as we look in horror at the Jim Crow South, so too will future generations look in horror at the homophobia of this era.

This is the situation that Clement and K&S  found themselves in.  Lawyer and firm are both aware of history and legacy.  The tide is already turning against the foes of gay marriage whether those dinosaurs like it or not.  Clement and K&S chose the wrong side of history, but K&S blanched and backed down.  Clement did not, and I imagine that he will be remembered as John W. Davis is: a great lawyer who made a catastrophic decision.

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.


* 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”;

The End of Don’t Ask Don’t Tell

After 17 years, the horrible, bigoted policy known as Don’t Ask Don’t Tell is over.  Repealed.  Kaput.  Consigned to the trashcan of history.

I am very happy for the covertly gay and lesbian soldiers who now can be open about their private lives without fear of reprisal.  I am happy for all those brave men and women who were wrongfully discharged because of DADT and who are either morally redeemed or can (if they choose) return to serve.  I am happy that, for once, a law that benefits the LGBT community was passed by the United States Congress.

Having said all that, DADT only affects a very small subsection of the LGBT community.  Repeal of DADT is a symbolic victory, a political victory and a moral victory.  It is also however, in the grand scheme of things, a very small victory.  DADT should have been a slam dunk, but it barely squeaked by (all credit to President Obama though who kept his promise to repeal DADT on his watch.)

If it was so difficult to pass a repeal of DADT with possibly the LGBT-friendliest Congress ever, then how much harder is it going to be to get other legislation passed with a much hostile Congress?  Other legislation that will effect a greater number of people such as: The Employment Non Discrimination Act, The Student Non Discrimination Act, a repeal of the Defense of Marriage Act (and full marriage equality for the entire country), pension and Social Security benefits reform, health insurance benefits for partners of gay federal workers, immigration reform that treats homosexual partners like heterosexual partners, legislation preventing discrimination in adoption rights, and transgender-friendly laws in any field.  I am sure I am forgetting other important and necessary legislation.

The Arc of the Moral Universe is long indeed.

Illinois: Gay Rights and Forward Momentum

I. Overview

This week, the state legislature of Illinois enacted civil unions over the objections of the Catholic Church and the rest of the anti-gay bigots such as the National Organization for Marriage.  As of this posting, the bill has yet to be signed by Illinois Governor Pat Quinn, but Quinn is an LGBT ally, and has promised to sign the bill in the new year (supposedly in a big ceremony.)  First and foremost let me say that I really wish Quinn would sign the bill right away.  I understand that civil unions do not go into effect until June, but this kind of legislation needs to be signed right away.  If somehow this legislation were to be vetoed, the Illinois legislature would not have the votes to overturn the veto particularly when the new legislature comes into session.

Two common thoughts have arisen in the LGBT community about this bill.  The first is that it a great step forward.  The second is that civil unions are not enough and at this point the only real victory is marriage.  I would say that both of these are reactions correct and, despite being near opposite opinions, are actually quite consistent.  Civil unions, in a place where there had previously been no LGBT rights, is a great victory.  At the same time, civil unions are second class because they are viewed as such.  This is especially apparent in Illinois where civil unions are open to straight couples.  This demonstrates that marriage is being deliberately withheld from gay couples despite the increased rights of civil unions.  The underlying message is “Marriage is Different.”

Moreover, the marriage situation for gay couples is tricky.  The recognition of gay couples comes from the states.  Federal protections offered to (and forced upon) married straight couples are not available to gay couples, no matter how the individual state defines the relationship.  The reason for this is the Defense of Marriage Act, which states that (1) states do not have to recognize marriages/civil unions performed in other states (this is blatantly unconstitutional–see Article IV); and (2) the federal government does not have to recognize such unions.  The first part of DOMA has yet  to be challenged.  Gay rights advocates are scared of the current Supreme Court and are (legitimately) afraid that a loss would set the movement back decades.  A challenge to the second part is making its way through the federal courts.  Recently a federal trial judge in New England found that this portion of DOMA is unconstitutional.  Eventually the Supreme Court will hear this case (Gill v. OPM).  Although it is a strong case, from this point on there are no guarantees.  The path of gay rights has never been a particularly easy one.

II.  Gay Rights and the Courts

Gay marriage first arrived into the American legal world through a 1972 case out of Minnesota called Baker v. Nelson.  The gay plaintiffs were denied a marriage license.  The plaintiffs appealed to the United States Supreme Court on Equal Protection grounds.  The Court did not hear the case and dismissed it in a one line opinion that said there was no federal question.  For non-lawyers, understand that this only applies to federal law.  States could still decide these issues for themselves on their own constitutions and laws.  Nearly 40 years later, Baker is a very dubious case.  While Baker theoretically binds all lower federal courts (and state courts hearing federal claims), it is unclear exactly what Baker‘s status is.  The Court never issued any substantial opinion or clarification, and the law has changed significantly since 1972.

On a federal level, the next major defeat came in 1986 when the Supreme Court announced its decision in Bowers v. Hardwick.  If Baker was a loss for gay rights, Bowers was a crushing disaster.  Michael Hardwick was a gay man who, long story short, was arrested in his bedroom when he was found there engaging in consensual oral sex with another man.  Hardwick lived in Atlanta, and Georgia at the time had an anti-sodomy law (referring to anal and oral sex.)  The case went to the Supreme Court, and in a horrific 5-4 decision the Court majority found the Georgia law was constitutional.  The majority’s underlying message was this was only constitutional with regard to gay people.  In other words, gays were not entitled to the same privacy protections as straight people.  This ruling came during the height of the AIDS crisis.

The first victory for marriage equality came in Hawaii in 1993.  Gay rights advocates, inspired by the NAACP’s years-long strategy in the successful dismantling of segregation, wanted to end anti-gay marriage laws on a gradual basis.  Unlike the NAACP, gay rights advocates chose to do battle in state courts.  The reasons for this were clear.  Whereas the NAACP had an ally in the Supreme Court, gay rights advocates has a hostile majority waiting for them.  The gay rights advocates instead brought suit in states that had a strong judicial tradition of expansive equal protection.  That first victory came from the Supreme Court of Hawaii in a case called Baehr v. Lewin.  The Court held that denying marriage licenses to gay couples was essentially impermissible gender discrimination and struck down the law.

Unfortunately, Baehr proved a Pyrrhic victory.  Hawaii changed its constitution to allow the Legislature to ban same-sex marriage (and the Legislature did.)  The real damage though came from Congress, which, in response to Baehr, passed DOMA.  President Clinton signed it into law.  A host of states passed their own laws and constitutional amendments also banning same-sex marriage.  Some of the more venal states passed amendments that also banned civil unions.

In response to Hawaii, gay rights advocates realized they needed to alter their strategy.  It was not enough to find states with expansive traditions of equal protection.  They needed to find states which also had constitutions that were difficult to amend.  The new battleground was New England, specifically Vermont and Massachusetts.

In 1996, the Supreme Court started to backtrack on its anti-gay stance in Romer v. Evans.  In the ten years there had been a significant change of personnel on the Court, and in particular two Justices in the Bowers majority, Lewis Powell and Byron White, were replaced by Anthony Kennedy and Ruth Bader Ginsburg respectively.  In Romer, the Court struck down a state constitutional amendment in Colorado that would have prevented any protections for LGBT citizens by the executive, legislative, or judicial branches on either a state or municipal level.  For the first time an anti-gay law had gone too far and had too much animus; the new Supreme Court majority pushed back.

In 1999, victory came out of Vermont.  The Vermont Supreme Court held in Baker v. Vermont that the state had to offer the rights and responsibilities of civil marriage to same-sex couples.  The Vermont legislature and then Governor Howard Dean were squeamish about extending marriage to same-sex couples.  In response to the Court’s decision, Vermont created an alternate structure called civil unions.

III.  Lawrence v. Texas

In June 2003, the Supreme Court released its most significant gay rights ruling to date: Lawrence v. Texas.  The Court’s majority, in no uncertain terms (and occasionally poetic language) ruled that Bowers was wrong and had always been wrong.  What consenting adults did in the privacy of their own homes was their own business.  In other words, the Lawrence Court restored the privacy rights to gays and lesbians that the Bowers Court said did not exist.

As important as Lawrence is, it is also a deeply flawed decision. The Lawrence majority offered no clear indication for the lower courts with regard to how to deal with gay rights cases; this was undoubtedly deliberate.  The case was decided on Due Process grounds not on Equal Protection grounds.  In layman’s terms the Supreme Court majority said that the act of gay sodomy was protected; the majority said nothing about the legal status of gay people.  When a law discriminates, by design or by choice, against a protected group (race, nationality, and gender are the big three), the law is automatically suspect and unless there is a really (really really) good reason for the law, the courts will strike it down as unconstitutional.  In deciding Lawrence as it did–as a “protected liberty” case–the majority avoided the question about whether the LGBT community was equally protected by the Constitution.

Why did the Court do this?  I have a theory that I believe is correct but cannot say for certain.  Courts do not like to make law.  Even with a direct constitutional challenge, the courts try to find a way to minimize judicial law making.  In overturning Texas’s sodomy law, the majority made as minimal a decision as possible without upholding the law.  Deciding this case on equal protection grounds would bring a whole slew of new cases that the majority was not ready to deal with.  It does not take a constitutional scholar to realize that same-sex marriage would be at the forefront of these new cases.  The majority saw this and blinked.  Limiting Lawrence to protected liberty (i.e. privacy rights) was the majority’s way of staving off getting involved in the contentious battle of same-sex marriage and further LGBT rights cases.  Nevertheless, not everyone saw Lawrence as merely a privacy decision.  Justice Antonin Scalia, writing in dissent, warned that Lawrence would lead to (judicially imposed) same-sex marriage.  He may be correct; some courts that have since heard LGBT rights cases have looked to Lawrence as guidance even though despite the majority’s trepidation.

One voice on the Supreme Court did advocate for looking at Lawrence as an Equal Protection case.  Justice Sandra Day O’Connor wrote a concurrence that would have held laws that discriminate based on sexual orientation as suspect.  While she left open how strictly a court should look at such laws, gay rights advocates would have had a much more powerful tool in their war against oppression.  The irony is that Justice O’Connor was in the Bowers majority.  What changed?  There are two answers.  The first is nothing changed.  On one level, the Bowers majority and her concurrence in Lawrence are consistent.  Bowers was decided on privacy grounds, and that is how the Lawrence majority overturned Bowers.  O’Connor appears to be saying that while anti-sodomy laws are theoretically permissible, they must be applied equally to gay and straight people.  Since Texas’s law would never (never never!) be applied to a heterosexual coupling, it was unconstitutional.

O’Connor insisted in her concurrence that using an equal protection rubric for sexual orientation would not apply to marriage (unless there was animus behind excluding same-sex couples), but that is not completely honest.  This leads to the second and more likely answer for O’Connor’s concurrence: even Justices change their mind.  Perhaps between 1986 (Bowers) and 1996 (Romer), she encountered more open gays and lesbians–clerks possibly or maybe people in her social circle.  Maybe the education initiatives launched by gay rights advocates made a difference to her somewhere.  Maybe as gay people became more normative, her opinion of gays and lesbians changed.  Around the time Lawrence came before the Supreme Court, there were rumors in the LGBT community that O’Connor deeply regretted her decision in Bowers and wanted to correct it.  Justice Lewis Powell, who was something of a mentor to her, spoke openly about how he would come to regret joining the Bowers majority.  Maybe O’Connor felt that her opinion in Lawrence was a way to right a wrong that she helped to create.  I cannot say for certain, although it makes for an interesting guessing game.

IV.  Gay Marriage Arrives

In 2004, the Massachusetts Supreme Judicial Court released its opinion in Goodridge v. Department of Public Health, and–cliché as it sounds–the legal landscape would never be the same again.  Gay rights advocates (and LGBT people as a whole) won their first total and complete victory.  In a 4-3 decision, the Court said that marriage had to be opened to same-sex couples and civil unions were not an adequate substitute.  The Court gave the Legislature six months to fix the problem or else marriage would automatically go into effect.  Although opponents tried to overturn the Court’s decision, there was too much many gay rights allies in the Massachusetts Legislature (that only grew in the years following Goodridge), and same-sex marriage became a reality.  On a personal note, I went to the celebrations the night Cambridge City Hall started issuing marriage licenses (trust Cambridge to start issuing the licenses before anyone else.)  I have never seen such an expression of joy in my life, and it is a night I will never forget.  It is also a reminder that outside of the Dixie Cups’ “Chapel of Love,” there are not many memorable wedding songs.  Symbolically, it was a very important night.  The day that Massachusetts started issuing marriage licenses to same-sex couples was the 50th anniversary of Brown v. Board of Education.

Immediately following announcement of the Goodridge decision, Gavin Newsom, then-mayor of San Francisco, ordered City Hall to start issuing marriage licenses to same-sex marriages in defiance of state law.  Jason West, the mayor of New Paltz, New York, also defied state law and personally presided over 25 same-sex marriages.  None of these marriages were valid, but as an act of civil disobedience, it was astounding.  However, 2004 was a fraught year in American politics and Newsom and gay marriage were (unfairly) blamed for the reelection of George W. Bush.  That year a whole bunch of states also passed anti same-sex marriage amendments for state constitutions.  Despite the best efforts of Republicans in the White House and Congress, they could not pass a constitutional amendment banning same-sex marriage in the United States–a stark change from the overwhelming Congressional support for DOMA.

V. Conclusion

In the years since 2004, the progress of gay rights has been two steps forward one step back.  In the courts, same-sex marriage advocates were unsuccessful in Washington, New York and Maryland, had more success in New Jersey (civil unions), and total victory in Connecticut and, of all places, Iowa.  The California Supreme Court found the state constitution required same-sex marriage and the Maine Legislature passed a gay marriage bill that was signed into law.  Voters in referenda overruled both the California Supreme Court and the Maine Legislature.  New York, Rhode Island, Maryland, and soon Illinois recognize out-of-state same-sex marriages even if they do not offer same-sex marriage.  Legislatures in Washington, Nevada, Colorado, Wisconsin, Oregon, and Rhode Island offer varying degrees of partnership rights.  New Hampshire, Vermont, and Washington D.C. all enacted gay marriage through their legislative bodies.   Florida’s adoption ban (created following Anita Bryant’s villainous witch hunt) was struck down by the courts, and it is not coming back.  Two very gay-friendly governors were elected in Hawaii and Rhode Island in place of homophobic ones.  Neil Abercrombie of Hawaii said he would sign a civil unions bill when it reached his desk, and Lincoln Chafee of Rhode Island refused to even meet with the bigots from NOM.  Cases challenging DOMA are coming from all sides now, although their success is less certain given that the make-up of the Supreme Court has become more conservative since Lawrence.  Perhaps in a sign of the times, one of the lead attorneys in the battle to overturn Prop 8, the California constitutional amendment that stopped same-sex marriage in that state, is Ted Olsen, George W. Bush’s Solicitor General.  When the gay rights advocates declined to challenge Prop 8 (in fear of the Supreme Court), Ted Olsen stepped up and said that justice deferred is justice denied.

I cannot say what will happen in the short-term.  In the long-term though the path is very clear.  Homosexuality is becoming ever more normative.  The generation largely repulsed by homosexuality is dying out and is being replaced by one full of people who have openly gay friends, coworkers, and relatives.  Illinois may not be the most progressive state, but it is a definite positive step.  The gay friendly members of the Illinois legislature stared down the bigots and won.  There is hope.

What I listened to while writing this post: World Football Daily (podcast)