February 2013

  • February 28, 2013

    by Jeremy Leaming

    The Obama administration is weighing in on the constitutional challenge to California’s anti-gay initiative Proposition 8. And like it did in a separate case before the Supreme Court challenging the so-called Defense of Marriage Act, the administration is advancing a call for equality.

    The case, Hollingsworth v. Perry is from the U.S. Court of Appeals for the Ninth Circuit, which last year invalidated Proposition 8, in part, because it “served no purpose and no effect, other than to lessen the status and human dignity of gays and lesbians.”

    The Obama administration had no obligation to weigh in, but did so on the last day to lodge briefs with the high court.

    “California law provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important government interest. Proposition 8 thus violates equal protection,” the administration’s brief states.

    SCOTUSblog’s Lyle Denniston says the administration’s brief “could be read to support a right to marriage equality in every state, but it did not endorse that idea explicitly.”

    Denniston continues, “What the brief endorsed is what has been called the ‘eight-state solution’ – that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through ‘civil unions’) those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.”

    The administration’s brief nonetheless provides what could also be seen as a robust call for equality stretching from coast to coast. For example, the administration argues that laws classifying lesbians and gay men should be subject to “heightened scrutiny.”

    “For certain protected classes, however, heightened scrutiny enables courts to ascertain whether the government has employed the classification for a significant and proper purpose, and provides an enhanced measure of protection in circumstances where there is a greater danger that the classification results from impermissible prejudice or stereotypes. Because sexual orientation is a factor that ‘generally provides no sensible ground for different treatment,’ laws that classify based on sexual orientation should be subject to heightened scrutiny,” the brief states.

  • February 28, 2013

    by Jeremy Leaming

    It took the U.S. House of Representatives far too long, but it has finally passed a more inclusive and bolder reauthorization of the Violence Against Women Act (VAWA). 

    By a vote of 286 – 138, the House passed the reauthorization version approved by the Senate earlier this month. The measure will now be sent to President Obama for his signature.

    The Senate reauthorization was passed during the 112th Congress, but died when the House refused to support it, opting instead for a more limited version. The Senate reauthorization, sponsored by Sens. Patrick Leahy (D-Vt.), Mike Crapo (R-Idaho) and Lisa Murkowski (R-Alaska), extends services to help more victims of domestic violence. It does so by providing expanded jurisdiction to tribal courts to prosecute domestic violence. The reauthorization also includes more services for college students, undocumented immigrants and members of the LGBT community.

    Leahy applauded the House for passing a “fully-inclusive, life-saving legislation with a bipartisan vote” but also noted that supporting such legislation should not have been such a heavy lift. Indeed VAWA was passed with strong bipartisan support in 1994 and reauthorized in 2000 and 2005 without much wrangling.

    “We made the Violence Against Women Act our top priority in this Congress but it should not have taken this long,” Leahy continued.

    Rep. John Conyers (D-Mich.), a leading voice opposing the House Republican’s weak VAWA reauthorization, said it was time to bolster the law. “It is critical that we continue these programs and, with this subsequent reauthorization, those safeguards will be afforded to the LGBT, Native American, and immigrant communities as well.”

    This time around, as The New York Times and others pointed, the Republican-led House was obstinately opposed to the reauthorization legislation because it extended services to undocumented immigrants and the LGBT community. In a Feb. 9 editorial, The Times blasted Republican opposition as “driven largely by an antigay, anti-immigrant agenda.” Right-wing organizations, such as the Family Research Council, also mounted strident attacks on the reauthorization, claiming it would run up deficits and undermine individual freedoms. Longtime right-wing activist Phyllis Schafly called the VAWA reauthorization a “slush fund for the feminist lobby.”

     

  • February 27, 2013

    by Jeremy Leaming

    The U.S. Supreme Court’s right-wing bloc appears ready to seriously weaken the integral enforcement provision of the Voting Rights Act of 1965.

    During oral argument in Shelby County v. Holder, all of the court’s conservative justices as SCOTUSblog publisher Tom Goldstein reported appeared “committed to invalidating Section 5 of the Voting Rights Act and requiring Congress to revisit the formula for requiring preclearance of voting changes.” (Section 5 requires certain states and towns, mostly in the South, to obtain “preclearance” for any changes to their voting laws and procedures to ensure they do not harm minority voters.)

    The New York Times’ Adam Liptak in a piece on today’s oral argument noted that Justice Anthony Kennedy asked attorneys arguing in favor of Section 5, how much longer states like Alabama must live “under the trusteeship of the United States government.” Liptak also noted that Justice Antonin Scalia took a shot at Section 5 saying it produces a “perpetuation of racial entitlement.” The Huffington Post's Ryan J. Reilly expounded on Scalia's commentary, noting that the justice flippantly said Congress reauthorized the Voting Rights Act in 2006 because, who could vote against a bill with  such a "wonderful" name.

    Bloomberg’s Greg Stohr also noted Kennedy’s skepticism of Section 5, saying the justice chided Congress for relying on a supposedly outdated formula for deciding what states should be covered.

    Chief Justice John Roberts asked U.S. Solicitor General Donald Verrilli whether the Obama administration believes people in the South “are more racist than citizens in the North.” The Associated Press reported that Verrilli said no.

    As Liptak noted in a piece earlier this morning, it has long been clear that the Court’s conservative wing views with great skepticism the formula Congress has used in determining what states should be covered by Section 5. He noted the 2009 opinion in Northwest Austin Municipal Utility District v. Holder, in which Roberts said Congress should revisit the formula. Congress, however, took no action. Liptak continued that the conservative justices “could stop short of striking down Section 5 itself.” Instead, Liptak said the high court could call for an end to the use of the formula, meaning Congress would need to revise it for “preclearance” to continue to be useful. (During the 2012 elections cycle, Section 5 was used by the Department of Justice to halt potentially discriminatory voting procedures from taking effect in several of the covered jurisdictions, such as Texas, Florida and South Carolina.)

    Goldstein also wrote that it appears “unlikely that the Court will write an opinion forbidding a preclearance regime. But it may be difficult politically for Congress to enact a new measure.”

    Supporters of Section 5 argued in a slew of briefs before the high court that Congress via the 14th and 15th Amendments has great discretion in crafting proper legislation to ensure that states do not violate the rights of minorities, including particularly the right to ensure states do not discriminate in voting. It appeared during oral argument that the court’s five right-wing justices believed Congress has not done its job properly.

    ACS President Caroline Fredrickson said, “With so many recent efforts to suppress the vote, it should be clear that the law remains relevant and necessary. This Court should refrain from deciding unilaterally that Congress has completed its job of ensuring the promise of the 14th and 15th Amendments.”

  • February 27, 2013

    by E. Sebastian Arduengo

    Two hundred and twenty three days is a long time to wait for a new job. Yet, that’s the average number of days that an Obama judicial nominee must wait from nomination to confirmation.

    While they’re waiting, they have to put their professional lives on hold, lest they inadvertently do anything that might stall their confirmation. And, that’s just the average nominee; many have waited much, much longer. Caitlin Halligan, one of President Obama’s nominees to the influential Court of Appeals for the D.C. Circuit has been waiting nearly three years for her confirmation to go through a bitterly divided Senate. Some say that Halligan’s nomination is controversial because of her statements on the Second Amendment and detainee rights. But, even completely uncontroversial nominees who are rated as “highly qualified” by the American Bar Association, like Bill Kayatta, who was recently confirmed to sit on the First Circuit, have languished for months in the Senate. Robert Bacharach, who was recently confirmed to the U.S. Court of Appeals for the Tenth Circuit, had his confirmation delayed in a filibuster aided by his home-state Senators.

    When judges have to wait to take their posts, ordinary people have to wait increasingly longer for routine legal matters to get resolved. Right now there are 88 vacancies in the federal judiciary, about a third of those are considered judicial emergencies – where the judges on a court have so many cases that they are forced to preform judicial triage. In those courts, resolving a civil case can take years because criminal matters take higher priority on the docket, and even those can be significantly delayed despite the constitutional guarantee of a speedy trial. In some districts, there are so many vacancies that a term like “ghost court” wouldn’t be far off the mark. Six judgeships in the Eastern District of Pennsylvania, which includes Philadelphia, are vacant, along with five judgeships in the District of Arizona. There are even federal courthouses that have literally been sitting empty for years because no one has even been nominated to fill those judgeships.

  • February 26, 2013

    by Jeremy Leaming

    Professor Justin Levitt says Section 5 of the Voting Rights Act provides elasticity – that is covered jurisdictions complaining about federal intrusions have a way to “bail-out,” by showing that their proposed changes to voting laws would not discriminate against minority voters. And Prof. Gabriel J. Chin says the Supreme Court, when it considers the constitutionality of Section 5 in Shelby County v. Holder, should refrain from overreaching, allowing Congress to do its job, which in part entails enforcing the Fifteenth Amendment of the Constitution.

    See their posts and others in the ACSblog symposium on the Shelby County case, which the justices will hear oral argument in tomorrow.

    Janai S. Nelson, a professor of law at St. John’s University School of Law, in a post for Reuters also provides some excellent insight into the viability of Section 5. (Section 5 requires certain states and towns, mostly in the South, with long histories of racial discrimination in voting to obtain “preclearance” for proposed changes to their elections laws and procedures from the Department of Justice or a federal court in Washington.)

    She notes that a major aim of Section 5 centers on ensuring that “new voting laws will not ‘retrogress’ – or harm – minority voting rights.”

    And as many have noted, during the 2012 elections the Department of Justice successfully employed Section 5 to prevent discriminatory elections laws from going into effect in several covered jurisdictions, such as Texas, Florida and South Carolina. (See the ACS Voting Rights Resources page for more information on this case and the landmark law.)

    Section 5, Nelson continues, has “changed the discourse around race in backrooms and in courtrooms by requiring that electoral decision-makers are not only aware of race but also are conscious of the racial harm. Indeed, Section 5’s anti-regression standard directs jurisdictions subject to oversight either to advance or, at a minimum, protect minority voting rights.”

    As noted here, Alabama officials are arguing against Section 5 partly by saying that racial discrimination is no greater in Alabama than in other states and therefore it should be dumped or greatly reworked to not burden Alabama or the other covered jurisdictions. The NAACP LDF, which is representing Alabama voters in Shelby County, says Alabama officials are turning a blind eye to the persistent efforts to harm minority voters in the state – like rewriting voting districts to dilute the minority vote, while giving more power to white voters.

    Nelson also adds that progress made in the covered jurisdictions should not lead one to conclude that Section 5 has done its job and is now an unconstitutional tool the federal government is unnecessarily wielding.

    The fact, she writes, “that the record of discrimination in covered jurisdictions has diminished is evidence that Section 5 is working – not that it has exhausted its usefulness.”

    Nelson, and other staunch supporters of the Voting Rights Act, is nailing it – Section 5 is working and the Supreme Court’s right-wing bloc, if it could keep its ideological leanings in check, would not block Congress’s constitutional authority to ensure the promise of both Fourteenth and Fifteenth Amendments.