Posts Tagged ‘Scalia’

Marriage and the Constitution: A History of Inequality

September 19th, 2011 No comments

This past Friday, I gave the keynote address at Widener University’s Constitution Day event. Because of multiple requests1, I am reproducing that speech below. In sum, it’s instructive to see how the right to marry (and its denial) have been important issues in the struggles of African-Americans and women — not just gays and lesbians — to gain equality. And if you want to think about where the next movements will come from, look at those groups that still confront restrictions on their rights to marry: immigrants and the mentally disabled.

Here’s the entire text of the speech, warts and all:

Let me start with a quote from Justice Kennedy, from a 1996 decision (Romer v. Evans.) He begins his opinion – a landmark for gay rights – with a quote from the infamous 1896 case of Plessy v. Ferguson, where the Court allowed a separate but equal regime to exist. Only one justice dissented.

“One century ago, the first Justice Harlan admonished this Court that HN1the Constitution “neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U.S. 537, 559, 41 L. Ed. 256, 16 S. Ct. 1138 (1896) (dissenting opinion). Unheeded then, those words now are understood to state a commitment to the law’s neutrality where the rights of persons are at stake.”

But is it? How much progress have we made in fulfilling the promise of dignity and equality for all of our citizens?

I want to explore that question through an examination of a particular question:

What does the Constitution have to say about whether same-sex couples have the right to marry? And what does that, in turn, have to do with citizenship? Are gay and lesbian couples not fully citizens if  we can’t marry the person of our choice? And it’s worth asking: How important is this issue, anyway?

But to get there, we’ll have to pan away from that specific issue. We might begin with this question: What exactly do we celebrate about the Constitution on Constitution Day?

We might justly celebrate the structure of government that was set forth, pain-stakingly, in that document: three branches of government, with a carefully calibrated assignment of powers and responsibilities among them. (And shortly thereafter, the Supreme Court’s decision, in Marbury v. Madison, that it had the ultimate power to rule on whether a given law was constitutional.)

There’s also great, aspirational rhetoric in the document. It begins with the short preamble, which speaks for “We the People of the United States,” and then states the grand purposes of the Constitution: “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity….”

And then there was the Bill of Rights, shipped off to the states for ratification shortly after the original document itself. Among the protections afforded by those amendments are the rights to freedom of speech, religion, and assembly, to be free from unreasonable searches and seizures, to confront one’s accusers in a criminal case, to a jury trial in civil cases, to do all 16 dances, and, perhaps most famously – but not exactly accurately – not to be deprived of “life, liberty, or property” . I say not accurately because the Constitution doesn’t echo the Declaration of Independence’s language that all men (note the limitation) have the right to “life, liberty and the pursuit of happiness.” It instead says that the first two (with property now substituted for happiness) can’t be taken away without due process of law

Indeed, it’s that same Declaration of Independence – not the original US Constitution – that contains the phrase “all men are created equal.” It’s easier to put grandiose statements into a declaration when you’re writing a manifesto designed to free you from an oppressor (King George) than it is to put them into a constitution where you’re trying to hammer out the metal of governance. Remember that the drafters of the Constitution were so intent on making the thing work – the nuts and bolts of government, which also famously included the separation of powers between the federal and state governments – that the Bill of Rights wasn’t even included in the original document.

And those very same problems of compromise and the difficulties of drafting a working document surely helped to contribute to a problem with the Constitution that, even today, places a heavy hand on many of the groups that make up “the governed.” Because if we focus on the rights of groups that are disenfranchised or marginalized, the Constitution comes up short.

As is famously known, when the Constitution was ratified its protections for individual rights and freedoms, embedded in the Bill of Rights, didn’t extend to women – who weren’t even mentioned – or to African-Americans, who (if they were slaves), weren’t even considered people. And there was, more generally, no guarantee of equality. It secured the blessings of liberty for white men only.

So after the Civil War, the Constitution was amended to provide, among other things, a guarantee under the 14th Amendment of “equal protection under the laws.” This has turned out to be one of the most important tools in the battle for equality, as might be imagined by its very language. But it got off to sort of a slow, lurching start.

Let’s start not with the freed slaves, but with women. They couldn’t vote – and this disability continued until 1920, when the XIXth amendment was ratified. The 14th Amendment changed nothing for them.

And that was by no means the only area in which they suffered inequality. Under state laws, they didn’t exist as individuals once they married. Their legal existences were swallowed whole by marriage, with the husband gaining the right to manage what had been their property, to bring lawsuits in their wives names, and to make binding decisions for them. Women had no right to contract, either. This disability was a basis for the Supreme Court’s decision in Bradwell, an 1873 case where the Court found no constitutional problem in the fact that the State of Illinois denied to admit to the bar a woman who was otherwise qualified to practice. And in case anyone doubts that the Court’s decision was based on a notion of women that supports this inequality, consider this statement from Justice Bradley’s concurring opinion:

It is true that many women are unmarried…but these are exceptions to the general rule. The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”

These laws disappeared throughout the latter part of the nineteenth century, but no one would say that women’s rights were secured by these moves. Divorce laws often favored men [adultery example], and, until a generation ago, men were still legally able to rape their spouses. Even today, certain rules and practices treat sexual assault within a marriage quite differently than they treat the same conduct by strangers (or even cohabitators). Since social practices are informed by legal rules, it’s not surprising that women’s inequality extended into those realms as well.

How was all this allowed to happen? Because, it’s only been since the early 1970s that the Supreme Court even started to apply the guarantee of equal protection to women in a systematic way that subjected laws based on gender to a high level of scrutiny. In fact, in a recent statement, Justice Scalia opined that, were we to start over, he wouldn’t apply the EP clause of the 14th Amendmen to women. The clause, he said, was only meant to apply to freed blacks. (Needless to say, there’s a strong voice on the other side.)

As for African-Americans, there’s a sad abundance of points to make about how the Constitution’s promises were for them hollow until quite recently. Until the Civil War, of course, slaves had no rights of any kind. Remember that there wasn’t any controversy over the fact that slaves weren’t considered rights-holders, citizens, or people. They couldn’t vote, and could marry only ceremonially AND only at the sufferance of their owners, who permitted such unions only when it suited their interest. And if it later suited their interest to break up the family, well that’s just what they did.

So what effect did the Civil War amendments, and in particular, the guarantee of equal protection, have on them?

As we now know, not nearly enough. To get back to marriage: While the freed blacks could now marry each other, they were, increasingly prohibited from marrying whites. And this went on for more than a century after the end of the Civil War, in spite of the enactment and ratification of the post-Civil War amendments. This could be defended under a sterile view of equality that said: Well, whites can marry whites and blacks can marry blacks – everyone’s equal! It wasn’t until 1967 that the S CT finally stated that state bans on interracial marriage were actually anchored in a notion of what the Court directly called “white supremacy.” In other words, a deeper understanding of what equality requires was needed.

In other contexts, too, the equal protection clause rang hollow. Consider that in 1896  the Supreme Court ruled, in the Plessy case, that “separate but equal” regime was constitutionally permissible. It was only Harlan who was able to see through this tissue and state what should have been in plain sight: that separation combined with a long history of discrimination and a theory of racial hierarchy can never be equal.

There are no castes here in the United States, said Harlan. But his statement was wish, not reality. And the challenges of equality remain, even though the Court has said that any distinctions in law that are based on race are presumptively invalid. We’ve gotten rid of Jim Crow laws, poll taxes, and other forms of discrimination that undermined the promise of the 14th amendment, but it’s impossible to argue that the achievement of formal equality has led to anything approaching social or economic parity, as any set of demographic data quickly reveals.

So what does any of this oversimplified history lesson have to do with LGBT rights, and with citizenship, or marriage equality?


Because the denial of equality is, to the extent of that denial, a denial of citizenship.

Thus, when women can’t vote and can’t marry without losing their legal identity, it’s inaccurate to call them citizens in the full sense of that term. When African-Americans are compelled, by law, to attend schools that everyone knew were inferior, were disenfranchised by laws that were aimed at them in fact, and are limited as to their marriage partners, they too are relegated to a lesser citizenship – almost 150 years after the end of slavery. Because citizenship, expansively understood, is more than a nation’s willingness to recognize you in that capacity for a census. Citizenship demands the right to participate, fully and on equal terms, in the political life of a nation. Access to education, the right to vote, and – most broadly – full legal equality are needed for those purposes.

So it is with gays, lesbians, and transgendered Americans. And it happens that, for a variety of reasons that cohere in a way that few might have expected even thirty years ago, marriage has become – along with the about-to-be-history of the exclusion of gays and lesbians from the military – the focal point of the struggle for the full citizenship and equality of LGBT people. How has this happened? And why?

First, some background. It wasn’t until a little over a century ago that people were even recognized as homosexual. At least in the U.S., homosexuality was understood as a sexual act, not as part of a broader identity – let alone an identity that one might choose. This older view is not without adherents, even today. Among them are the most vocal of opponents to full equality, including Justice Scalia, whose inability to understand the importance of equality for the LGBT community seems deeply rooted in his view that homosexuality is behavior – and therefore controllable, and therefore not entitled to the kind of heightened protection we afford historically disadvantaged minorities.

An infamous, almost-funny example of this was his series of questions during oral argument in the Lawrence v. Texas case. There, he made clear his view that the state could ban behavior that it found immoral, even if that behavior had an expressive component. He compared homosexual acts, mischievously, to flagpole-sitting, and asked whether a state could legally bar people from sitting on flagpoles, even if the sitter regarded the conduct as expressive.

Only a view that sees sexual behavior as disassociated from identity could find any such comparison even plausible. And then the state can regulate behavior, even when it occurs in the home. So Scalia is definitely “old school” when it comes LGBT rights – if there are not LGBT people, as such, then we also disappear as people with claims to rights and the dignity that legal equality confers.

Of course, Scalia’s view is in full retreat today. Vast majorities of people, at least in most Western countries, understand members of the LGBT community as rights-claiming people. And across a broad spectrum of issues, they support equality.

Thus, even though Congress has repeatedly refused to pass the Employment Non-Discrimination Act, huge majorities of Americans think it’s wrong to fire someone because of their sexual orientation (less so, unfortunately, because of their gender identity). Don’t Ask, Don’t Tell, which officially ends its life next week, was repealed because the policy was opposed by more than 2/3 of Americans, who saw no reason why gays and lesbians – but again, not transgendered people – should not be able to serve. Majorities (although not majorities in every part of the country!) mostly see gays and lesbians as neighbors, friends, and even parents.

And recently, a majority of Americans, for the first time, told pollsters that they didn’t find homosexuality itself immoral. This is hugely important, because that view drives much of the anti-gay legal and social culture. If what gays and lesbians do sexually is considered immoral, then it’s easier to justify laws that effectively drive them underground. But once that view changes, progress will accelerate.

So what about marriage equality? Why is this the laggard issue? And why is it of importance at all? Until what I’ll refer to as the ‘equality explosion’ of the past decade or so, many in the LGBT community scoffed at any idea that what we should be aspiring to is marriage.

Marriage! Of all things. Feminists, straight and lesbian alike, made the obvious point that marriage had long been associated with the subordination of women, and was a convenient way for the government to use the social,, non-legal view of marriage as a way to enforce compliance with expected gender roles and identities. Why should gays and lesbians be interested in that?

And the answer comes back to citizenship, at least for me. One we recognize that gay and lesbian people exist, and that they can establish loving relationships and families just as their opposite-sex counterparts can, it becomes an embarrassment to equality and to reason for the state to exclude them from the one institution that recognizes and supports such relationships.

This also answers, in its way, the charge that the gay rights movement is too different from the civil rights movement and from the women’s movement for any useful comparisons to be drawn. It is fair to say that general comparisons aren’t very helpful, and risk missing the history and eliding the distinctions between the various groups. Yet by homing in on how legal barriers have been used in a particular context – such as marriage – to enforce second-class citizenship, we can indeed see parallels.

Blacks were first prohibited from marrying, in a way that was part and parcel of their status as non-persons. Then they were prohibited, in many states, from marrying whites in an effort to use law to enforce the social (and, by the way, the perceived biological) distinctions between the races.

And the obliteration of legal personhood that accompanied women into the marital relation both created and socially reinforced their subordinate status; a status that, again, is also demonstrated by their greatest civil rights struggle: to gain the vote.

Let’s now – finally! – get to the struggle of gay and lesbian couples to marry. (Bisexuals will have this problem some of the time; as for TG people, the problem is somewhat different and I’ll talk about it in a few minutes.)

What is the argument for allowing same-sex couples to marry? It’s the simplest possible application of idea of equal protection:

If the right to marry is fundamental, as the Supreme Court says that it is, then fencing out gay and lesbian couples from marriage is a clear deprivation of equality. What are the possible responses to this argument, and are they compelling?

The first is what I might call the Scalia argument. It’s what I expect him to say if and when the case reaches the Supreme Court. It feeds off the premise that there’s no such thing, really, as a gay or lesbian “person” as such, and then argues that there’s really no equal protection problem here at all. Men can marry women; women can marry men. Everyone can marry someone.

Yes, this would mean that a gay man could marry a woman – heterosexual or lesbian – and that a lesbian could marry any man of her choice.  But that’s not a problem under this view, because at bottom there’s no integrated “person” whose rights are infringed.

This argument doesn’t have many adherents, and I doubt that even Scalia would state it this baldly – it’s more that the view would underpin his decision. As for what’s wrong with it, it’s enough to say that it badly misunderstands the nature of equality. As the CA S Ct said in the In Re Marriage Cases, denying same-sex couples the right to marry someone they might actually be attracted to is the most basic denial of equality.

The next argument is that it’s an error to think of this as an equality issue, because same-sex couples and opposite-sex couples aren’t similarly situated when it comes to marriage. There are many variants of this argument, but the best-known is the natural law argument, which goes like this:

Men and women bring something different, and complementary, to marriage. Marriage, and procreative sex, brings them together for the unique purpose of conceiving children. Since no other coupling can achieve that end, no other coupling can be marriage.

The problem with this argument – apart from its reductive simplicity – is that it can’t bridge the gulf between describing one view of the marital relationship and prescribing what would be best for society. Why should marriage laws be constructed around this kind of abstraction rather than as a way to both structure and dignify actual lives? There are complex questions (which I’ll get to right after this!) that can’t be defined away based on one idiosyncratic view of what marriage just “is” or just “must be.”

It’s easy enough to pick off the low-hanging fruit, the arguments that have little traction. But there are others that might be raised in opposition to the basic contention that LGBT couples deserve equal protection under the marriage laws.

As the Prop 8 trial dramatically demonstrated, though, these are ultimately non-starters as well.

The first is that the state has an interest in supporting the institution that encourages couples to stick together for the children they might create through accidental procreation. This argument was accepted by a couple of state supreme courts a few years ago, but it hasn’t escaped the criticism it deserves. The state can encourage that, but it remains to be answered how it can justify fencing out others – like non-procreating senior citizens, not just gays. Indeed, asking the question about seniors shows how little marriage really is about this “accidental procreation” thing.

The next is that marriage provides an ideal setting for child-rearing, and that kids do best in a household headed by a mother and a father. Except that the social science evidence thus far suggests to the contrary (with even some faint suggestion that lesbians might make the best parents of all, a finding that would surely cause some discomfort among the oppositionists if it turns out to be supported by further evidence).

The last is the trickiest, because it’s the hardest to counter. Marriage is in trouble (not gays’ or lesbians’ fault, they admit) and we don’t want to do anything to counter the idea that kids need a mother and a father. If we do, over time people will stop marrying. The institution will lose its unique meaning and historical place, and people won’t regard it in the same way – and will flee the institution in droves.

I heard this point made, expressly, by one of the litigants in the case that was decided by the Iowa Supreme Court.

This argument is wholly unsupported and speculative, and if anything seems contradicted by early evidence from states that do allow same-sex marriages: MA, for example, is among the nation’s leaders in marriage rates and has the lowest divorce rates (or close to them). And against such a possible, long-term outcome, one must weigh the immediate and undeniable harm to the couples being affected right now.

So if these arguments aren’t any good, why isn’t the struggle over already? Well, there’s of course religion.

But there’s another reason: same-sex relationships are still seen, by many, as a challenge to gender norms – even by many of those who favor equality in other legal realms. That these norms have been shaken up enough to make the conversation even possible is a tribute to the work of feminists – female and male alike.

Of course, the ways that the marriage rights of A-As, women and gays and lesbians have been denied are different, reflecting the fears and assumptions that the majority – or at least the voting majority – harbored of those groups.

Yet I do think that, while one needs to take clear and careful account of differences between the ways that those in what one famous S Ct footnote called “discrete and insular minorities” have been treated, and how they’ve responded to that treatment, in the broader way that the arc of history bends toward justice, our struggles are, in important ways, interconnected.

While the metaphor of a quilt of separate squares has sometimes been used to make this point, I think instead of an expansive, single cloth interwoven with many threads, becoming stronger and tighter as more threads are woven in. Looking closely, we can discern the various colors and thread textures that make up the cloth’s entirety, but sometimes we can just admire the cloth’s whole, integrated structure.

And we must always be on the lookout for the threads we’ve not noticed before, or that we’ve pretended weren’t there. Because the cloth needs constant strengthening and refereshing.

And the work will never be complete. To stick with marriage, consider two additional out groups: transgendered people and immigrants. With the TG community, it just happens that marriage equality solves their problem because it eliminates the embarrassing difficulty that courts have had in trying to figure out whether marriages involving at least one TG person are legal. Often ignoring even reassignment surgery and new birth certificates, many courts have simply declared that chromosomal sex rules. The approach varies from state to state and court to court, leaving TG people in a hopeless situation when someone challenges the validity of their marriage.

In other words, when given the chance, many courts will unravel the couple’s life together, and make them legal strangers to each other – even after the death of one of the members, where a family member comes in to challenge the validity of the marriage.

(For most TG people, of course, marriage is not the biggest worry. The entire administrative state is set up in a way that makes all kinds of things – drivers licenses, transit passes, passports a logistical nightmare and a daily assault. Mention Aussie passport and U.S. “pick your gender” moves.)

As for immigrants, note that INS will investigate an otherwise legally sanctioned marriage to determine whether a citizen’s marriage to an “alien” is really a “fraud” – and to what other sorts of marriages, I ask rhetorically, is this approach applied?

And the mentally disabled have long faced severe and sometimes insurmountable restrictions on their right to marry.

These examples could be expanded, of course, to make the point that the exclusion or limitation on the right to marry tells us more than we might have expected about how a certain group is regarded – and therefore about their status as full citizens, entitled to state-conferred rights (like marriage) that the majority – including felons –takes for granted.

I want to close with a point that I hope will take us back to that single cloth of many threads. Because that cloth will obviously need the strength of the majority, of the supposed “unsuppressed class.”

And the strength of that thread comes from recognition that these caste-like, hierarchical structure and restrictions– decried by Justice Harlan more than a century ago, has a pernicious effect on everyone, including the dominant class.

We can see that in an obvious way in the interracial marriage cases.

Because the goal of the law was to further white supremacy, it wasn’t often noticed that the effect was to deny full equality to those whites who wanted to cross the gender line to marry. Consider the case that spawned the S Ct’s ruling, Loving v. Virginia. Richard Loving, the white man, was just as much a victim of the anti-miscegenation law as his wife, the A-A Mildred Jeter. They were forced to live apart in order to avoid prosecution. Richard would sneak into his own wife’s house (the couple were legally married in DC but VA not only wouldn’t recognize the marriage, but called their union a crime that could be prosecuted) in Virginia, at night.

But my point is broader than an observation about the effects that denying equality has on a particular person, or couple. In a broader sense, we are all denied citizenship when any one of us is. Because surely one of the benefits of citizenship is the right to interact with other citizens who enjoy the same freedom to fully authentic lives that we all claim at least the legal right to pursue.

Allowing the Constitution to realize its full promise can’t ensure any such thing. Yet the Constitution can be the medium for the furtherance of equality rather than an excuse for its continued denial. On Constitution Day, we do well to remember that, while our Union will never be “perfect,” our job is to work toward that tantalizing goal.

“As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Justice Kennedy, from Lawrence v. Texas.

  1. Two.

Tribe Baits Scalia

February 9th, 2011 No comments

That’s surely what liberal Professor Laurence Tribe is doing here, right?

Given the clear case for the [health care] law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.

Two predictions:

(1) Scalia, as obvious a partisan as you’ll ever find, will vote to strike down the law; and

(2) He won’t be able to resist taking on Tribe, probably in that nasty-clever way that he’s perversely perfected.

This should be good. (By “this” I mean Scalia’s response, not the possibility that the law will actually be struck down. I still don’t think that’s likely, and it would be a disaster for both the Obama Administration and the country.)

The Modest Supreme Court

January 23rd, 2010 No comments

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.

Interpreting Supreme Court’s Stay of Video Coverage in Perry v. Schwarzenegger

January 11th, 2010 1 comment

Less than one hour ago, the Supreme Court voted — by a lopsided 8-1 majority — to grant the defendants’ motion to prevent the youtube broadcast (even the delayed broadcast) of the trial proceedings in Perry v. Schwarzenegger, the California federal case challenging the constitutionality of Prop 8 (and, by extension the constitutionality of the ban on same-sex marriages.)

I can’t yet find the Court’s ruling, but it’s likely short, because the Court only agreed to defer the issue until Wednesday, by which time one would expect they’d issue a more comprehensive decision. But the fact that eight of the justices believe that the application has at least some merit (a least enough for a short stay) surely isn’t a good sign for those, like me, that planned on some good popcorn viewing over the next several weeks.

I’ll have much more to say after the Court’s more substantive decision on Wednesday (especially if the Court affirms and continues the stay), but for now I note:

  • As the linked article suggests, some members of the Court may be allowing their own views about televising of Supreme Court proceedings to affect their judgment here. Several members, notably Chief Justice John Roberts, have been vocally opposed to suggestions that the Court allow anyone to actually see what it’s doing.
  • It’s worth wondering how the professedly (if disingenuously) anti-elitist Justice Scalia will rule. Surely public access to a trial, where people sitting in their living rooms can make their own judgments about the evidence, should be — from the vox populi standpoint, anyway — better than having such proceedings filtered through the media lens; and a small number of media outlets, at that. Let’s see whether this sentiment even surfaces in a case where Scalia might believe that honoring it would do harm to a case in which his belief, from available evidence, is quite strong.

Of course, one might seize on my phrase “popcorn viewing” in support of the position that allowing the citizenry to watch trials of national importance is to permit their trivialization. But if we’re going to let people vote on rights, it seems the least we should do is to let the oppressed see the arguments being used against us.

As for the claim that witnesses will be intimidated or harassed should be trial be televised, it might be answered that the witnesses and their statements will (unless there’s something I’m not aware of) be part of the public record. Anyone determined enough to find out the information can already do so. Let’s not allow speculative, incremental risk to get in the way of full disclosure.

After all, the arguments against marriage equality are surely compelling, aren’t they?

Empathy and Activism: A Look at Senator Cornyn’s Own Judicial Record

July 16th, 2009 No comments

During the Sotomayor hearings, Sen. John Cornyn of Texas has been among the most aggressive questioners. He seems particularly overwrought about the nominee’s statements that her experience as a Latina would somehow affect, or even improve, her decision-making. (Of course, the would-be justice has run as far from those comments as possible.) He and other conservatives also worry about “activist judges” who “legislate from the bench.” It’s amazing he can express these concerns without blushing.

As I noted when this issue broke, there are several ways to interpret the “wise Latina” comment. The most benign is that all of us are a product of our environment and experience; our empathy should be for all litigants, but we’re not, and shouldn’t pretend to be, robots. (That said, Sotomayor’s performance so far has been that of Automaton Lawyer.)

Cornyn, though, is having none of this; empathy isn’t and shouldn’t be part of decision-making. NY Times columnist Maureen Dowd is at her skewering best in yesterday’s take on the Republican Legion of (White) Super-Attackers. Smashing the tennis ball with deadly accuracy, she nails every line and corner of the court:

“A wise Latina woman with the richness of her experiences would more often than not know that a gaggle of white Republican men afraid of extinction are out to trip her up.

“After all, these guys have never needed to speak inspirational words to others like them, as Sotomayor has done. They’ve had codes, handshakes and clubs to do that.

“[P]resident Obama wants Sotomayor, naturally, to bring a fresh perspective to the court. It was a disgrace that W. appointed two white men to a court stocked with white men. And Sotomayor made it clear that she provides some spicy seasoning to a bench when she said in a speech: ‘I simply do not know exactly what the difference will be in my judging, but I accept there will be some based on gender and my Latina heritage.’

“Republican Lindsey Graham read Sotomayor some anonymous comments made by lawyers about her, complaining that she was “temperamental,” “nasty,” “a bit of a bully.” Then he patronizingly lectured her about how this was the moment for “self-reflection.” Maybe Graham thinks Nino Scalia has those traits covered.

“But the barbed adjectives didn’t match the muted performance on display before the Judiciary Committee. Like the president who picked her, Sotomayor has been a model of professorial rationality. Besides, it’s delicious watching Republicans go after Democrats for being too emotional and irrational given the G.O.P. shame spiral.

“W. and Dick Cheney made all their bad decisions about Iraq, W.M.D.’s, domestic surveillance, torture, rendition and secret hit squads from the gut, based on false intuitions, fear, paranoia and revenge.

“Sarah Palin is the definition of irrational, a volatile and scattered country-music queen without the music. Her Republican fans defend her lack of application and intellect, happy to settle for her emotional electricity.

“Senator Graham said Sotomayor would be confirmed unless she had ‘a meltdown’ — a word applied mostly to women and toddlers until Mark Sanford proudly took ownership of it when he was judged about the wisdom of his Latina woman.

“And then there’s the Supreme Court, of course, which gave up its claim to rational neutrality when the justices appointed by Republican presidents — including Bush Sr. — ignored what was fair to make a sentimental choice and throw the 2000 election to W.

“Faced with that warped case of supreme empathy, no wonder Sotomayor is so eager to follow the law.”


Cornyn’s own record as a Texas Supreme Court Justice reveals a similar “supreme empathy” — to insurance companies. In the area of tort law, he consistently sided with majorities that eviscerated long-standing rules and principles, consistently to the advantage of defendant businesses and the insurance companies that ultimately would have had to account for the losses.

These decisions, often by the barest of majorities, were not in cases that any other state supreme court would have agreed with. In the 1992 case of Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992), Cornyn and three other justices held that a supermarket wasn’t necessarily liable for a slippery condition that its own employee had created. Maybe the employee didn’t know the spray he’d used had landed on the floor. The flabbergasted dissenters pointed out that the majority’s decision, in addition to being at odds with settled and uncontroversial law in Texas as well as everywhere else, effectively told employees and store owners to “look the other way.”

The majority also tripped the plaintiff up on a procedural error, one that the dissent noted was now applied only to those bringing suit, not to those defending: “Today the court… extends a dual standard of justice–an easy requirement for defendants, an inexplicably strict one for plaintiffs.” (Mauzy, J., dissenting)

This willingness to use arcane procedural rules to defeat claims sometimes meant that valid cases never got a hearing. In the inexplicable H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258 (Tex. 1992), Cornyn wrote only for himself (but as the majority because of an oddity of Texas law) in tossing out a case involving a woman who’d slipped and been injured allegedly because of an ill-conceived “bag your own chicken”1 promotion. Despite the clear description of the dangerous condition set forth in the complaint, then Justice Cornyn found that it hadn’t provided legally sufficient notice of the problem. I leave to the law-curious among you the details, but this telling comment from the dissent bears quoting:

“”The majority opinion defies modern rules of pleading, which require only that a plaintiff put the defendant on notice of the claim. [This] retrograde analysis runs counter…to modern tenets of procedure….”

Empathy for insurance companies and judicial activism: Not just for leftists, apparently. Cornyn’s decisions spawned dissents that were downright angry and accusatory. Here’s a good place to finish, again stemming from a pro-insurance decision by a Cornyn-led majority:

“When an unequivocal constitutional command and  concern for the insurance industry collide in this Court, the outcome is no longer in doubt. [T]oday’s decision is but one example of the court’s recent indifference to precedent and its commitment to wholesale revision of Texas law.” (Doggett, J., dissenting)

  1. Ick.

Delhi Order: Equality, Sliced Thick

July 6th, 2009 No comments

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.”

Another Troubling New Yorker Cover

June 25th, 2009 2 comments

 Consider these two New Yorker covers:

June 29, 2009  July 21, 2008

Both are by Barry Blitt. The one depicting the radical, terrorist, Muslim Obamas “graced” the July 21, 2008, issue, and caused what I considered to be way too much controversy. It was obviously intended to mock the right-wing media’s treatment of Obama, and was in fact entitled “The Politics of Fear.” But, following the magazine’s unbreakable convention, the title didn’t appear on the cover, but in the Table of Contents. Some worried that, especially without the benefit of the title, many would miss the joke. I never thought so; it struck me as what I’ll call “projection snobbery” — attributing to the New Yorker and its readers condescension and disregard of the opinions of those “too dumb” to get it, while it turned out that everyone got it.

The other cover,  “Hanging Chador”, is from next Monday’s issue, which I received yesterday. Yes, I get it: There’s a disputed election in Iran, and there was also a disputed election in the U.S.! It happened in 2000!!

It’s early, but so far I’ve not seen any expression of disapproval, in the mainstream media or even in the blogosphere, over the image. But for reasons I’m finding hard to articulate (readers? any help?), I find this “Hanging Chador” much more offensive than “The Politics of Fear.”

Up front, I’m not one of those people who’s ever been able to take “Justice” Scalia’s advice and “get over” the Supreme Court’s wholly unprincipled ruling in Bush v. Gore, effectively  handing the election to Bush 43. (It doesn’t help that the man the Court installed was a cataclysm.) But there was some comedy in the whole Florida recount, and no B-level comedian was able to resist verbal or visual puns on the “hanging chads” that might have determined the outcome (again absent the Supreme Court’s hijack). Despite some very bad and occasionally borderline-scary behavior, no one was being killed over the 2000 election, and even I must admit that the Republic yet stands.

There’s nothing remotely funny about what is going on Iran, though. Indeed, the New Yorker’s own Laura Secor is at the top of my list of clear and careful writers on the subject; in both her blog and in her Talk of the Town comment, her lucid prose and clear exposition make the horror, the stakes, and the shifting landscape (lately among the clerics) clear.

The cover, by contrast, is clever and jokey — not what’s called for. I rarely think that jokes are inappropriate, but in this case I see a profound if unintended disrespect. There’s no one in Iran scrutinizing ballots to discern “the intent of the voter.” The votes didn’t matter, and the protesters’ attempt to make it otherwise are being met with intimidation, violence, and death.

Very funny.