Equality and Liberty

  • June 30, 2015
    Guest Post

    by Sam Kleiner, a fellow at the Yale Law Information Society Project 

    With his landmark opinion in Obergefell v Hodges, Justice Anthony Kennedy cemented his legacy as a gay rights icon. “He will be remembered for these decisions perhaps more than any other,” said Camilla Taylor, counsel and director of Lambda Legal’s marriage project. What makes this all the more remarkable, is that Justice Kennedy wasn’t supposed to be a justice at all. He was Reagan’s more conciliatory choice, the one who was “popular with colleagues of all political persuasions,” after the failed nomination of the far more right-wing Robert Bork.

    The effort against Bork has been immortalized in Senator Edward Kennedy’s speech on “Robert Bork’s America.” "To Bork" has entered the American lexicon as a hyperbolic attack on a good person.

    The reality, however, is that Bork was outside the legal mainstream. Whereas Senator Kennedy led an effort to skewer Bork, the chairman of the Senate Judiciary Committee led a far more substantive critique of Bork’s extremism that proved pivotal in the fight over the nomination. That senator was Joseph Biden.

    Bork was nominated with impeccable credentials- a professor at Yale Law School and a Judge on the D.C. Circuit court of appeals. The Senate had traditionally questioned the qualifications of a nominee but an inquiry into their judicial philosophy had not been done in a full-throated manner. Bork, however, had built his academic career disparaging an array of civil rights cases and Biden thought it was necessary to dig in on what exactly this nominee’s views of the Constitution were and what he would do on the Court.

    While others wanted Biden to go after Bork’s personal life, he took the higher road. “When confronted with a request to subpoena Judge Bork’s video rental records in a search for possible pornography, Mr. Biden refused,” noted Jeff Rosen (then a Biden intern).

    Instead, Biden went into an in-depth hearing on Bork’s understanding of the Constitution. Biden, as Rosen noted, focused the “questioning on Judge Bork’s substantive views about the right to privacy." In 1965, the Court in Griswold had ruled that a law banning the use of contraceptives by a married couple was unconstitutional as a violation of the “right to marital privacy.” Professor Bork had built his career criticizing decisions like Griswold and Biden used the hearings as a way to highlight just how extreme Bork was.

    In the hearings, Biden, at some length, prodded Bork on his argument against Griswold. Bork gave “weak-kneed statements from a man known for verbal muscle,” as one historian notes.  Biden’s objective was not to disprove Bork’s views explicitly but he was able to discredit him in the court of public opinion. The strategy worked.

    The concern raised about Bork was that he had always been opposed to the development of new liberties and was unlikely to be a defender of liberty on the Court. “As one imagines the kinds of great new issues that might come before the court in the years ahead, there surely are reasons to fear that on these great issues, Judge Bork will not be there when it counts,” testified Bork’s Yale Law colleague Paul Gewirtz at a Biden-led hearing.

  • June 26, 2015
    Guest Post

    by Erwin Chemerinsky, Dean of the School of Law, Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The Supreme Court’s decision upholding a right to marriage equality for gays and lesbians surprised no one, but that makes the victory for liberty and equality no less important. Two years ago, the Supreme Court, in United States v. Windsor, declared unconstitutional a key provision of the federal Defense of Marriage Act. Justice Kennedy wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The Court held that there was no legitimate purpose served by the federal government refusing to recognize same sex marriages.

    Virtually every lower court, except for the United States Court of Appeals for the Sixth Circuit, interpreted Windsor as providing a basis for invalidating laws prohibiting same sex marriage. As a result, as the Supreme Court considered the issue, marriage equality existed in 37 states and the District of Columbia. The issue before the Court was less about whether to extend marriage equality and more about whether the Court would take it away from all of the states where it existed by virtue of Court decisions.

    Ultimately, the Supreme Court’s decision reflects that there is no legitimate government purpose served by denying gays and lesbians of the right to marry. A history of discrimination never is enough to justify current discrimination. The argument based on procreation was silly.  Gay and lesbian couples will procreate – by adoption, surrogacy, and artificial insemination – whether they can marry or not. Their children should be able to benefit from marriage, the same as children of heterosexual couples.

    The Court’s decision will be regarded as a historic landmark for advancing equality and liberty. It is the Court playing exactly the role that it should in society:  protecting those who have been traditionally discriminated against and extending to them a right long regarded as fundamental.

  • June 26, 2015
    Guest Post

    by Joseph Thai, Watson Centennial Chair in Law and Presidential Professor, University of Oklahoma College of Law

    In the rearview mirror of history, today’s decision in Obergefell v. Hodges will one day appear as obvious and inarguable to almost every American as other landmarks in our Nation’s journey toward equality. Like Loving v. Virginia (1967), which invalidated bans on interracial marriage, and Brown v. Board of Education (1954), which invalidated segregation, Obergefell will stand as a cherished American monument not just to the realization of greater equality, but also to the struggle and sacrifice to get there. And, as with perhaps the most powerful of American monuments ‒ the Lincoln Memorial ‒ Obergefell should not only turn our contemplation to the past, but moreover should direct our reflections to the future.

    In the eloquent words of Justice Kennedy, from an earlier decision on which today’s builds, “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” What will be those “certain truths” which we cannot see today, just as barely a generation ago a majority of the Court ‒ and no doubt most of the country ‒ deemed the claim of equality for same-sex couples to be, “at best, facetious”? I do not know.

    Perhaps future generations will find our failure to address crippling inequality of income and opportunity to be as willfully blind as past generations’ acceptance of separate but equal. Or perhaps our posterity will judge the demographics and conditions of mass incarceration to be as discriminatory and violative of human dignity as we do the machinery of justice under the Ancien Régime. But even if we had the benefit of tomorrow’s hindsight today, would we have the humility and courage to accept it? After all, Justice Harlan’s dissent in Plessy v. Ferguson (1896) spoke from the future, and no one else signed on.

  • June 26, 2015
    Guest Post

    by Suzanne B. Goldberg, Director of Columbia Law School's Center for Gender and Sexuality Law, Herbert and Doris Wechsler Clinical Professor of Law, and Executive Vice President for University Life at Columbia University.

    By striking down state laws that shut same-sex couples out of marriage, the U.S. Supreme Court has put an end to a long and painful chapter in our country’s history and, at the same time, created an opening for a new wave of civil rights, safety, and justice advocacy.

    For so many years, with heightened intensity in the past two decades, states have denied same-sex couples access to marriage and the rights, recognition, and responsibilities that go along with it.  The terrible consequences are familiar: longtime partners kept from each other at hospitals, children and parents torn apart, humiliation and cost to people like the man at the heart of today’s decision, James Obergefell, whose marriage Ohio treated as nonexistent after Obergefell’s spouse, John Arthur, died in 2013.

    Familiar now, too, is the dramatic shift in the marriage equality landscape.  With increasing momentum, voters, legislatures, and courts around the country have reversed course on “defense of marriage” acts and rejected second-class citizenship for gay and lesbian couples.

    Without Supreme Court action, the nation was destined to maintain a discriminatory patchwork of marriage laws for years to come. The Court’s decision, in other words, reinforced the American tradition that courts, legislatures, and the general public each have a role in securing justice.

  • June 26, 2015
    Guest Post

    by Lara Schwartz, Professorial Lecturer, American University School of Public Affairs

    Much will be written, and is being written as we speak, on the Court’s historic decision in Obergefell v. Hodges, which recognized same-sex couples’ fundamental and equal right to marry. As someone who teaches constitutional law to undergraduates, most of whom have never read a judicial opinion when they enter my class, I will say this: I will hold class outside the day we discuss Obergefell, because I will not need a blackboard. This opinion will be the easiest reading assignment I’ll ever give them.

    Of all of the concepts I teach them, they struggle most with the concept of standards of review. Fortunately for them, the term “standard” does not appear in Justice Kennedy’s soaring, poetic opinion. Nor does “rational basis,” “heightened scrutiny,” or “compelling interest.” “Dignity,” on the other hand, appears nine times. This is as it should be, because the case was so simple.

    In plain English, for any American who is parsing this opinion today, I offer the following:

    The question before the Court in Obergefell was: Are gay people really people? It has always come down to this: If gay people are like other people, there is no compelling, important, or even rational basis to deny them the rights accorded to others. If gay people are as fully human as others, living in equal families, then laws that label same-sex couples and their children as legal strangers are repugnant to our Constitution.