It’s over at the New Civil Rights Movement. Seems like the court, in its 2-1 decision, was trying to whisper directly into Justice Kennedy’s ear. Let’s see if it works.
I’m using the word “matter” in two different senses, obviously. The point is that even an unconstitutional statute can “matter” in terms of the signals it sends out to the group who is the law’s target, even though it can’t legally matter.
In this week’s column, I explore the issue as it applies to interracial marriage and sodomy laws. The motivating event for the piece was the decision by a couple of Kansas legislators to strike a proposed amendment that would have removed the now-unenforceable ban against sexual intimacy by two people of the same sex.
Justice Kennedy’s admonition in Lawrence v. Texas is particularly apt here:
“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”
That’s no less true when the law can’t be enforced.
In today’s 365gay column, I answer a few of the questions that have come in since I started this weekly gig:
- Is DOMA constitutional?
- Should we just ask Justice Kennedy what he thinks about marriage equality?
- How can Obama be so good and so bad on LGBT issues at the same time?
A regular reader of this blog sent me an email with this invitation: “John, You need to write about this f****ing corporate First Amendment bull**** on your blog.” I assume he’s talking about the Supreme Court’s decision in Citizens United on Wednesday, which removes all meaningful federal and state regulation of what corporations can spend on elections. OK, motion granted.
The case is, strictly speaking, endless, running to almost 200 pages including concurrences and dissents. Speaking specifically of the 5-4 majority’s several opinions, it’s not surprising that the thing is so long. It takes a lot of ink to (1) try to justify the overruling of two recent Supreme Court decisions (Kennedy majority opinion); (2) attempt to square this act of breathtaking judicial overreaching with a stated judicial modesty (Roberts concurrence); and (3) strain to construe the holding as consistent with “original intent,” as though the founders of the Constitution would have seen the modern corporation as a full person entitled to the unfettered protection of the First Amendment (Scalia concurrence).
For all of Kennedy’s bloated rhetoric and tedious justifications, the syllogism it relied on is, at root, this: Corporations are groups of people. People have First Amendment rights, so corporations do, too. And the media — not all bloggers, though, thanks — arecorporations, too. If they have full First Amendment rights, why not all corporations?
There are so many criticisms one might level at this decision. Most centrally, it overlooks the agency and accountability problems that insulate corporations from their shareholders. In an age of the vast and diversified portfolio, many investors — including this one — don’t even know where all of their money is invested. Whatever corporations my modest loot happens to be invested in right now don’t speak for me. Will this decision force me to do something different? Maybe, but I doubt it. It’s just not reasonable to expect people to keep track of all of the messages their corporations are spreading around, many of which are done in subterfuge.
As to the point about media corporations having a voice that legislation doesn’t allow other corporate actors, it must be said there’s something to it, as “the press” is a far cry from what the Founders knew. For a typically first-rate account of the evolution of the press and its effect on democracy, I recommend Paul Starr’s piece in the current Atlantic. Starr’s account lays out the fuzzy line running from MSM to partisan cable outlets, to blogs and other web presses. But investing, say, major pharmaceutical companies, houses of finance, and major labor unions (yes, the ruling applies to them too, but they have much less power these days than the corporations they battle), with the full panoply of First Amendment rights afforded citizens or the press that has historically informed them is the action of a Court more interested in Republican party dominance than with something as quaint as “legal principle.”
But Chief Justice Roberts is just “calling balls and strikes.” No one should be under any illusions about the current Court’s agenda. But what can be done?
How about public financing of campaigns? Maybe it takes something this awful to get us to reform our terrible, bloated, and downright wasteful system for electing our politicians. If something isn’t done, and soon, the corporate influence may swamp everything. I have a fantasy about a Pushcart War style of insurgency by the blogosphere, but our pea shooters might not be enough against trucks of this size. If you’ve never read this children’s book, do it now. Simple, but kind of chilling.
In a battle that only lawyers and marriage debate partisans (like me) could love, federal appellate court judge Alex Kozinski has been sparring with the Obama DOJ over whether the government must (or even can) provide federal benefits to the same-sex partner of a staff attorney for the 9th Circuit (Kozinski’s court). You can find good accounts of the issue here and especially here; I’ll refer you to those and not rehash their good work.
Whatever happens with this case, though, it’s become increasingly clear to me that some case involving same-sex marriages — either directly or indirectly — is going to reach the Supreme Court sooner rather than later. For relentless coverage of the legal landscape relating to this issue (and of the many cases that might get to the high court), there’s no better place than Proposition 8 and the Right to Marry. The site chronicles almost every procedural and substantive development on cases from Massachusetts and California (to name two of the likeliest to come before the Supreme Court), and provides a rich source of links to official documents, reporting, and legal analysis.
This development may or may not be good news for the marriage equality movement; historically speaking, you’d have to say that this is a bit early. The Court doesn’t like to get ahead of social changes by much (by the time it declared bans on interracial marriage unconstitutional, only a handful of states still had them), but things move faster than they used to, and people are more mobile than they were. So all kinds of questions of interstate recognition of same-sex marriages keep popping up (often in the context of divorce, as I wrote here and here), and these create problems because of DOMA.
Of course, Congress might be able to stall the Court’s participation by repealing DOMA, but that move is a ways off; so far off, in fact, that Barney Frank won’t even co-sponsor the legislation leading to its repeal. So DOMA’s constitutionality may be the vehicle for examining the ban on same-sex marriages more comprehensively. And when that happens, it will likely be up to Justice Kennedy, as it so often is. The other eight are likely set, four to a side, making Kennedy an audience of one for the advocates. Is this really what anyone wants?
I no longer listen or watch raptly as Supreme Court nomination hearings proceed. They’re mostly for show, and a little goes a long way.
In Judge Sotomayor’s case, the little I’ve seen – except for the moving sight of her mother in the audience, fighting back tears of joy and pride — has been as scripted as have been recent hearings. Republicans are cautiously on the attack, recycling the few pieces of ordnance they have (will anyone ever again refer to herself as “a wise Latina”?) and at times revealing their embarrassing ignorance of all things judicial. Democrats work on the hagiography while pre-emptively blocking any efforts to suggest that the nominee might actually have a heart. (Chuck Schumer’s references to cases where Sotomayor had ruled against sympathetic plaintiffs were noteworthy in this regard, if a little…odd.) And the nominee herself, determined to give them nothing (especially since she’s reputedly such a Latina hothead!), is plodding along in a performance that is measured — at times even boring — by design.
But I did stop what I was doing and listen attentively to a brief exchange between Judge Sotomayor and Sen. Lindsey Graham of South Carolina. The discussion concerned the nominee’s work as a Board member for the Puerto Rican Legal Defense and Education Fund (“PRLDF”). Having served on the board of a legal advocacy group my own self, I can tell you that even the lawyers among us had approximately zero input on the cases the organization chose to take, and even less on the legal arguments and strategy the organization pursued.
Nonetheless, there’s something to Sen. Graham’s line of questioning, because Board members are generally committed to the goals and philosophy of the organization, even if they might have quibbles about details. If Equality Advocates, on whose board I sat, had suddenly decided, for example, not to take cases involving transgender rights, I would have known about that decision, and protested it. Sotomayor said as much, noting that Board members did care about fidelity to the organization’s broad mission statement.
So Graham pressed Sotomayor on briefs that the PRLDF had filed arguing that denying poor women the right to a government-funded abortion was the moral equivalent of slavery. Sotomayor claimed, quite plausibly, to have known nothing of this, but then she did speak to the overall goals of the organization in the same way I would have felt comfortable describing the work of Equality Advocates. She said that the Fund (which contains the word “Education” in its title) was interested in issues of “public health,” as were other advocacy groups.
Aha! Graham had what he perceived as an opening. “So you think abortion is a public health issue?” he asked.
Somehow, she managed to avoid answering the question directly — but she shouldn’t have. Here’s the exchange (beginning shortly before 4:00):
Abortion is a public health issue, and this description of it shouldn’t be seen as controversial. Graham was doubtless proceeding from the presumption that those who see abortion as a matter of public health are on the extreme end of the pro-choice side.
It’s true that one argument in favor of abortion rights has been that, on a population-wide basis, safe and legal abortions lead to better health outcomes; illegality and the lack of regulation predictably compromise women’s health. But that doesn’t mean that the argument is decisive from a public health point of view, nor does it mean that the public health perspective is the only perspective from which to consider the issue.
Recently, those opposing abortion rights have argued that abortions have their own public health consequences, including increased incidence of breast cancer and adverse mental health outcomes for women who terminate their pregnancies. There’s not a lot of evidence in support of these theories, but that didn’t stop Justice Kennedy, in his 2007 Supreme Court decision in Gonzales v. Carhart, from reciting supposed psychological consequences in support of his ruling that a law restricting late-term abortions was constitutional.
And public health, properly understood, isn’t a purely utilitarian calculus, anyway: Properly understood, it incorporates a respect for persons and autonomy that has both long- and short-term effects on health and well-being. In short, to recognize the issue as one with a public health dimension is to add a useful prism through which to view this complex and probably irresolvable issue.
But not the only prism. Saying that an issue has an important public health dimension isn’t ruling other perspectives out of order. Questions of rights and morality can’t and shouldn’t be read out of the issue. The challenge is to hold all of these perspectives before us as we strive for some kind of legal and social rules that we can live with, if not totally embrace. That goal sometimes seems impossible to achieve, but I’m optimistic that public health talk can take some of the heat out of the discussion and enable sensible compromise.
Repeat: Abortion is a public health issue.
As many readers know, last week the High Court in Delhi, India, sided with an HIV/AIDS services organization in ruling that the state’s prohibition on consensual, “unnatural” sexual acts violated the Indian Constitution. Nan Hunter has a brief summary of the ruling in Naz Foundation v. Government of NCT of Delhi, which apparently applies throughout the country unless and until reversed by the Supreme Court.
The long decision is noteworthy for many reasons, most obviously because it adds India to the ever-growing list of nations that have taken important steps towards recognition of the basic equality of their LGBT citizens. I recommend reading the entire decision (it’s long!), which you can find linked to The Times of India (which also quotes some of the court’s soaring rhetoric about discrimination, equality, and dignity).
Here, I want to focus on just a couple of points. First, the two state ministries that weighed in on the law differed; the Ministry of Home Affairs supported the law, while the Ministry of Health and Family Welfare sided with those challenging the law. The conflict draws into sharp focus the question of whether “morals legislation” is valid when it’s contradicted by public health and welfare considerations. In sum, the court said “no.” Home Affairs conceded the privacy argument for throwing out the law, but thought that it should be overborne by considerations of “public safety and protection of health as well as morals….” But the evidence strongly supported the contrary view of Health and Family Welfare, to the point that public health considerations argued strongly in favor of removing the legal prohibition against consensual sexual acts.
As someone who writes and teaches about the connections between public health and law, I was surprised and heartened to see the court undertake a direct and compelling public health argument in favor of throwing out this artifactual statute. In a ten-page section of the opinion entitled “[The Law] as an Impediment to Public Health,” the court details the high social and epidemiological cost of the closet, which is powerfully reinforced by the criminalization of same-sex relations. As we know, criminalization of same-sex relations and the accompanying stigma (as well as the potential for blackmail, apparently still real in India) drive the epidemic underground, making it much more difficult to reach people with disease prevention messages and strategies.
To the Home Affairs counter that criminalization was the right response to the HIV epidemic, the court noted that this view ran counter to well-understood views of homosexuality and the effect of criminalization. Siding with international and national public health authorities (including Health and Family Welfare), the court stated the prevailing view that criminalization doesn’t stop the behavior, but simply drives it underground. Not a good place to be, from a public health perspective. In addition to leading to preventable cases of STDs, including HIV, criminalizing homosexuality has more subtle effects. It adversely “shapes an individual’s identity and self-esteem. These laws “serve to embed illegality within the identity of homosexuals.” They “reinforce public abhorrence of lesbians and gays resulting in an erosion of self-esteem and self-worth.”
The other point worth mentioning is that the court, like many courts addressing broad issues of human dignity and civil rights, looked not only to its own law but also to the laws of other nations, as well as to international declarations of rights. Lawrence v. Texas received prominence of place, with the New Delhi court quoting Justice Kennedy’s majority decision declaring that banning same-sex intimacy violated the couple’s fundamental liberty interest, as well as Justice O’Connor’s equality-based concurrence. But decisions from South Africa, Canada, Australia, and the European Court of Human Rights were also discussed, as were the Universal Declaration of Human Rights and the European Convention on Human Rights.
I can’t resist concluding this post by remembering Justice Scalia’s dissenting screed in Lawrence, relevant to both points. First, he liked that, pre-Lawrence, the prohibition on same-sex intimacy could be — and was — used to support the unequal treatment of gays and lesbians in other areas of law. A couple of the cases he cited favorably upheld: the use of a police department questionnaire asking potential applicants about past homosexual (but not heterosexual) activity; and expanded security clearance for gay and lesbian job applicants only. He left out the worst case of all, in which a job offer to a lesbian who was set to begin working in the Georgia State Attorney General’s office was withdrawn after the AG found out about her commitment ceremony; in the view of this later-to-be-determined adulterer, her status as a lesbian was enough to presume she’d engage in illegal conduct. Begin making room in the closet.
Scalia also reddened at the Lawrence majority’s invocation of — not reliance on — foreign (pronounced: “fer’n”) sources of law. He quoted favorably from an earlier opinion by Justice Thomas objecting to the Court’s imposing “foreign moods, fads, or fashions…” on Americans.
Dignity, equality, and application of sound public health findings: “Moods, fads, and fashions.”