Posts Tagged ‘PDF’

Obergefell v. Kasich: small but important gay marriage victories keep rolling in

July 24, 2013

“This is not a complicated case.” – Judge Black, in Obergefell

When last month’s big gay marriage wins came down, I was of course quite pleased but not delighted. Between the two of them, Windsor and Hollingsworth dealt a powerful victory to marriage equality, forbidding the federal government from denying marital benefits based on sexual orientation, but otherwise doing little to deal with the real obstacle to equality, which is state-level bans on gay marriage.

Specifically citing to Hollingsworth, a court in Ohio has created some important precedent in dealing with the state-level bans. Obergefell v. Kasich, handed down by Ohio’s Judge Timothy Black yesterday, quickly and decisively decides the question of whether or not Ohio will recognize gay marriages solemnified by states other than Ohio:

This is not a complicated case. The issue is whether the State of Ohio can discriminate against same sex marriages lawfully solemnized out of state, when Ohio law has historically and unambiguously provided that the validity of a marriage is determined by whether it complies with the law of the jurisdiction where it was celebrated. How then can Ohio, especially given the historical status of Ohio law, single out same sex marriages as ones it will not recognize? The short answer is that Ohio cannot…

Judge Black’s fairly pointed ruling incorporates gay marriage into both ancient precedent and Constitutional guarantee that the state of Ohio must recognize the judicial determinations of other states, including marriages. As Judge Black observes in his ruling, it has forever been the case that marriages that meet, say, the age requirements or familial restrictions of their native jurisdictions but not Ohio’s must still be treated as full and legal marriages under Ohio law. While this is clearly a victory for gay Ohioans, there are at least three very good reasons that this is a crucial victory for marriage equality nation-wide.

The first is that most states follow precedents about extra-jurisdictional marriages virtually identical to those in Ohio, and all of them are bound by the Full Faith and Credit Clause, requiring total acknowledgment of the official acts of other states. In this sense Obergefell merely reiterates the clear fact that marriages are such official acts and, ipso facto, Ohio is not free to deny their existence within its own borders.

The second, related reason is that this builds a new argument against gay marriage bans, which is that they are simply useless: Ohio has a state-level ban on gay marriage whose ostensible goal is to deny marital rights to gay couples, but instead all it does now is impose upon them the relatively minor inconvenience of traveling to Massachusetts, Maryland, DC, or any of the other jurisdictions that recognize gay marriage, get married, and come home. The illegitimate and discriminatory purposes of state-level marriage bans are simply impossible, for the simple reason that no state has the power to ban marriages of any kind – only to determine what kinds of marriages can be performed within its own borders. This has practical significance as well as constitutional significance – a discriminatory law that cannot really be enforced, or that is truly useless beyond purely-symbolic discriminatory rhetoric, retains the constitutional defect of in-fact discrimination, but lacks the constitutional virtue of serving a legitimate governmental function (since a useless law serves no function whatsoever).

Thirdly, Judge Black graciously decided to expand beyond the very minimal ground he needed in order for him to make his ruling. It would have been enough for him to say “gay marriage, interracial marriage, cousin marriage, turtle marriage, doesn’t matter – if another state says it’s OK, then we have to recognize it.” And that would have achieved all of the ends that are relevant to Ohio’s gay couples. But Judge Black also went on to build a strong Constitutional case on top of his decision to accept extra-jurisdictional gay marriages, citing directly to WindsorHollingsworth, and the mid-90s Romer v. Evans, which struck down a Colorado state ban on all legal recognition of gay couples:

In derogation of law, the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal. As a threshold matter, it is absolutely clear that under Ohio law, from the founding of the State through at least 2004, the validity of an opposite-sex marriage is to be determined by whether it complies with the law of the jurisdiction where it was celebrated…

The purpose served by treating same-sex married couples differently than opposite-sex married couples is the same improper purpose that failed in Windsor and in Romer: “to impose inequality” and to make gay citizens unequal under the law. See Windsor…. It is beyond cavil that it is constitutionally prohibited to single out and disadvantage an unpopular group. Even if there were proffered some attendant governmental purpose to discriminate against gay couples, other than to effect pure animus, it is difficult to imagine how it could outweigh the severe burden imposed by the ban imposed on same-sex couples legally married in other states. Families deserve the highest level of protection under the First Amendment right of association…

This elegantly establishes every important point of a constitutional case against state-level gay marriage bans, which are of course the next logical phase of the gay marriage equality movement. Obergefell is an important win in the next round, which will require more than the harsh constitutional regime under which the federal government operates. What the equality movement needs is robust precedent extending the doctrines that undergird Hollingsworth onto the states, and even obvious arguments like the Full Faith arguments that decided Obergefell go a long way towards de-fanging the existing gay marriage bans.

The gay marriage decisions, part 2: Hollingsworth continues an uncomfortably strong reading of the ‘standing’ doctrine

June 28, 2013

Yesterday, the Supreme Court handed two significant defeats to opponents of LGBT equality: United States v. Windsor, discussed yesterday, and Hollingsworth v. Perry. By all accounts, Windsor is far and away the more important case. It more or less establishes that the gender of married parties, and whether married parties are or are not the same gender, is off-limits when the federal government is decided how to parse out marital benefits. That is a huge triumph for marriage equality (though, as discussed in yesterday’s post, the scale of the triumph is somewhat diminished by weak federalism).

Hollingsworth, on the other hand, technically says nothing at all about gay marriage per se. It allows no new marriages, it creates no new rights, it recognizes no existence gay marriages. It answers none of the questions that both parties to the case wanted answered, the most important of which would have been whether or not the state constitution of California, or the charter of California, forbids the denial of marriage benefits to same-sex couples. In fact, it answers a question that neither party asked at all, that is, whether or not the opponents of gay marriage had the right to be challenging the case at all. Hollingsworth speaks to the “standing” of the appealing parties, which neither party actually seriously challenged at any stage prior to the Supreme Court appeal.

“Standing” is a complicated thing, and I don’t mean that it’s complicated for the laymen, I mean that it’s complicated. What’s important for our purposes is that, if you want to sue the government over a law, you have to show that you were actually injured by that law. This analysis is usually best suited to criminal defendants being convicted for violating laws that they think are unConstitutional. Hollingsworth is interesting in that it is about the standing of the plaintiffs.

The doctrine of standing plays two important functions. Firstly, it prevents people with no stake in a particular law or incident from getting the advantage of court intervention – for example, imagine the harm to justice that would be done if, instead of letting the victims of racial discrimination sue to defeat discriminatory laws, the Klu Klux Klan were allowed to take up the case against racial discrimination, and just how good a job they would do of it. Secondly, it denies the courts the opportunity to usurp the power of legislators by taking the slightest complaint and turn it into a judicial referendum. Imagine, for example, a court that was just itching for an opportunity to strike down a mandatory minimum sentencing law, since it just steps on the toes of judges and juries. So, rather than going to someone sentences under such a law, they go to the judge’s neighbor Joe, who is just personally morally opposed to mandatory minimum sentencing, lets him sue, and takes his case. Joe has become an opportunity for a judge to strike down a law. Standing requirements forbid either scenario – the Klu Klux Klan presumably does not have standing in its case, and Joe does not have standing in his, since justice is properly left to truly aggrieved parties.

But for atheists and skeptics like myself, the word “standing” sticks in your craw because of a case called Elk Grove Unified School District v. Newdow. That was the case in which Michael Newdow, father of a daughter who had been punished for refusing to recite the Pledge of Allegiance because of its bizarre recently-added theistic commitments, was refused the opportunity to challenge Congress’s intrusion into the Pledge not because his case was bad, not because he was wrong about the Constitution or about the separation of church and state, but because he lacked “standing.”

Denial of “standing” is becoming an increasingly esoteric legal doctrine that is beginning to strike me as a judicial substitute for “we don’t really want to hear your case.” The Supreme Court had a prime opportunity in Hollingsworth to and a sounding defeat to the enemies of equality, but instead, it took the easy way out on a truly ambiguous question of standing. Like WindsorHollingsworth was 5-4, but Hollingsworth wasn’t the 5-4 you’d think. Where Windsor was divided along the traditional conservative bloc vs. Kennedy/liberal block lines we’ve come to know and love, Hollingsworth was opposed by the unusual combination of Alito, Thomas (Bush appointees), Sotomayor (an Obama appointee), and Kennedy. Liberal-conservative splits are to be expected. Ragtag teams of liberals, conservatives, and moderates all coming together to oppose are rather unexpected.

The dissent is just as concerned as I am that the Supreme Court took the easy way out in Hollingsworth, and worse, that the Court is making true justice entirely too inaccessible, that future Supreme Courts now have the superweapon of an unlimited standing doctrine to dismiss any case without having to answer the hard questions. To quote the dissent:

The essence of democracy is that the right to make law rests inthe people and flows to the government, not the other way  around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century…. In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability.

The troubling question raised by Hollingsworth is, who’s next to be denied Court access because of “standing?” Michael Newdow deserved to have his case heard, but the courts above him had created an insulating protection that lets them get rid of difficult cases without committing themselves to potentially politically unpalatable consequences. That is how Hollingsworth sounds to me. It makes me think, “first they came for the gay marriage opponents, but I said nothing, because I was not against gay marriage….” What if, some day, I want to petition the highest courts in the land to protect me from some federal or state invasion of my Constitutional protections, and I lack standing because my case is politically undesireable? Then I will be like Michael Newdow, and like the opponents of gay marriage: unpopular, unpalatable, and unprotected by the courts.

The gay marriage decisions, part 1: Windsor is a huge win for LGBT equality, but it’s a far cry from past great progressive victories

June 27, 2013

Today’s simultaneous rulings on gay marriage are, unequivocally, huge wins for marriage equality. Hollingsworth v. Perry, which concluded that the appellants lacked standing to bring the case and that therefore neither the Supreme Court nor the 9th Circuit should have heard the appeals defending Proposition 8 in the first place, and United States v. Windsor, which concluded that the federal government cannot deny benefits related to marriage based on same-sex status, are watershed decisions in the history of LGBT equality.

That being said, some troubling questions certainly remain, from both cases. There’s a lot to absorb from these cases, and so I’m going to split the cases over two posts. Part 1 is going to be Windsor, and next time, we’ll cover Hollingsworth.

We’ll start with the big one, Windsor, which gutted the Defense of Marriage Act, essentially declaring that the federal government cannot deny federal marriage benefits based on sexual orientation. In the run-up to decision day, some authorities were comparing Windsor to the game-changing Brown v. Board of Education, which essentially abolished segregated schools nationwide (legally speaking; actual integration took several years longer). The great strength of Brown v. Board was its uncompromising federalism: it gave no quarter to that most celebrated euphemism for the right to discriminate, “state’s rights,” and so forced the country into a truly national step forward. No ambiguities, no ifs, no buts.

Likewise with other great progressive judicial triumphs like Roe v. Wade and Loving v. Virginia. The strength of those cases was not that they created new restrictions on the federal government. No, those cases have stood the test of time and been burned into the brains of Con Law students everywhere for decades because they recognized new fundamental rights in the peopleRoe didn’t just say that there could be no federal ban on abortion, it said that no arm of the government could restrict the access of American women to abortions (on a trimester test that has since been expanded, but, lets not get ahead of ourselves). Loving didn’t end the federal government’s power to ban interracial marriage, it ended Virginia’s, and by extension, all other states. When it comes to protecting human rights, federalism is universally a better approach than the 10th Amendment fanaticism that has consumed American jurisprudence in the last ten years, and Windsor is a great example of that.

Windsor comes with substantially more qualifications than past great progressive triumphs. The first qualification is that no new gay marriages have been created or recognized by Windsor. On the absolute strictest possible reading of Windsor, one section of the Defense of Marriage Act, that part amending the so-called “Dictionary Act” which defines thousands of terms of federal law to specifically define “marriage” to exclude same-sex couples, is unconstitutional, but nothing else in this entire field is unconstitutional. The majority of states still have state Constitution bans on gay marriage and there is no language in Windsor specifically eliminates any of them.

In fact, there is troubling language in the majority opinion that seems to specifically create a right in individual states to continue to deny equality to same-sex couples. Quoting the majority:

The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.

I’ve bolded some of the sections that I find disturbing. It addresses itself entirely to a top-down attack on DOMA as discriminatory, not a bottom-up recognition of a fundamental right of gay Americans to get married. The decision seems to say that the federal government is prevented only from denying recognition to those marriages deemed legitimate by individual states, not that state bans on gay marriage are unconstitutional. This is a massive step back from the principles of federalism that ended segregation, that has kept church and state separate, that for the hundred and fifty years since the Fourteenth Amendment has put a bridle on that great engine of regression, “states’ rights.” This is a savagely curtailed version of rights jurisprudence, one which says that the federal government is the only kind of American institution that bears the burden of obeying the Constitution.

Windsor is a powerful referendum on the opponents of marriage equality, but it is just as much a referendum on progressive federalism. One might want to object that Windsor only speaks to DOMA and federal law because those were the only ones on the table, but progressive courts in the past haven’t been afraid to turn referendums on state issues into condemnations of those issues nationally – Roe, Loving, and Brown, even great cases from First Amendment religion jurisprudence from Abington Township to Lemon were all appeals from either state laws or state decisions that were instantly turned into national positions by the power of progressive federalism.

No state can deny your right to an abortion. No state can deny your right to an interracial marriage. No state can make you pray. But states can deny you the right to get married – and this court doesn’t say how far the state’s power to restrict that right goes. That is because progressive, federalist courts in the past have had the courage and wisdom to expand the Constitution’s guarantees as soon as the opportunity arises, not waiting for narrow procedural grounds in future cases (and believe me, there will be future cases) to give them the opportunity.

The decision here is so narrow that it even permits states that do not extend the courtesy of common humanity to same-sex couples to deny the existence of other states’ marriages. This radically contradicts the mainstream interpretation of Full Faith and Credit, creating a vicious internal inconsistency in the ruling itself. States are supposed to give full faith and credit to the judicial proceedings of every other state. According to Windsor, marriages, as adjudicated by the states, control over the federal government’s desire to deny federal marriage benefits to same-sex couples because marriage is something like a fundamental right. And yet, also according to this ruling, states do not have to give full faith and credit to the judicial proceedings of every other state where marriage is concerned. If I get divorced in New York and flee to Florida, is Florida likewise free to deny the judicial validity of my divorce? If not, why not?

This case is a huge symbolic win, but leaves a lot to be desired. Every state gay marriage ban that was on the books last week is still on the books. A win on the federal level is, don’t get me wrong, a tremendous win – and a contrary ruling would have been an absolute disaster for LGBT equality. But the ruling could have gone so much further, and still leaves the court dragging out the issue until a real challenge to a state ban on gay marriage comes before it. Windsor is a call to action for LGBT equality, to take the fight to state houses everywhere, or to Congress and the Senate, to work new cases challenging state gay marriage bans up the court system – because, unfortunately, it far from ends the battle.

Unfortunately, Hollinsworth v. Perry, the California Prop 8 appeal, is not that case. But next time, I’ll go through that case in greater detail, and why I find it, too, to have some glaring flaws that should leave all progressives troubled at the direction the court has gone lately.