Equality and Liberty

  • March 25, 2013

    by Jeremy Leaming

    Over the weekend The New York Times’ Sheryl Gay Stolberg provided a relatively glowing profile of Brian Brown, the leader of the rabidly antigay group called the National Organization for Marriage.

    Brown, Stolberg tells us, has “an open face and easy laugh that belie his status as a divisive figures in the culture wars” and a “keen sense of strategy and a polished speaking style, traits that unnerve his opponents.”

    Beyond lavishing praise on Brown’s lobbying abilities, Stolberg had to provide us a bit of information about his arguments against same-sex marriage – and those arguments are hardly polished or keen. They’re Christian Right retreads. Legal recognition of same-sex marriage will threaten religious liberty and undermine the sacredness of marriage, the Christian Right argues.

    For example, Brown said, “When you knock over a core pillar of society like marriage, and then try to redefine biblical views of marriage  as bigotry, there will be consequences.” He then asks will a push to “normalize pedophilia occur.”

    Like other Christianists Brown also comes around to the topic of children – if lesbians and gay men can legally wed they’ll adopt even more children and according to Christian Right groups that’s really bad news for children.

    These arguments regarding the ability of gay couples to raise children and the supposed threats to religious liberty are more than overwrought, they’re inaccurate. But peddling this nonsense has been a high priority for Brown and his allies in the Christian Right community for a long, long time.

    Boston College law school professor Kent Greenfield in a piece for The American Prospect titled “Weird Friends of the Court,” highlights a few of the “friend-of-the-court briefs” lodged by religious groups in both cases – Hollingsworth v. Perry and U.S. v. Windsor – that the Court will hear oral argument in this week.

    Greenfield notes upfront that controversial cases, such as the Perry and Windsor, “bring out the crazies, and crazies can hire lawyers to write a brief. And sometimes the crazies are the lawyers.”

    And then Greenfield gives us some examples. The far-right Thomas More Society declares gay people can’t have sex. “A man and woman, and only a man and a woman, are capable of engaging in sexual intercourse.” Greenfield adds, “Now that’s going to come as a surprise to some people.” No kidding.

    Fortunately there are likely many more serious, thoughtful briefs lodged before the Supreme Court. This blog has noted some of them here and here.

    Georgetown Law Center Professor Nan Hunter and Columbia Law School Professor Suzanne Goldberg have lodged briefs in both cases. During a recent interview with ACSblog, Goldberg briefly described some arguments advanced in those briefs.  

     

  • March 25, 2013

    by Jeremy Leaming

    The U.S. Supreme Court may rule soon on the constitutionality of a race-conscious admissions policy employed by the University of Texas at Austin, but as the AP’s Mark Sherman reports that justices are ready to consider another case involving a race-conscious admissions – this time a state ban on the use of such policies.

    The justices have already heard oral argument in Fisher v. University of Texas at Austin, regarding a white woman’s challenge to the university’s admissions policy, which takes an array of factors, including race, into account when building its student body. SCOTUSblog’s Lyle Denniston notes that while the justices in Fisher could potentially produce a broad ruling, they could as easily craft a narrow one that may “not go much beyond that plan.”

    The Michigan case, Schuette v. Michigan Coalition to Defend Affirmative Action, however could prove to be a platform for a more sweeping announcement on race-conscious admissions policies. Denniston writes that the Michigan case “involves a move by a state to deny its public colleges and universities any right to use race as a factor in choosing the incoming class of students. It thus has the potential to produce a far more sweeping decision.”

    As Sherman notes, the Michigan movement to pass a law outlawing race-conscious admissions policy “has its roots” in the high court’s 2003 opinion in Grutter v. Bollinger. In Grutter, a majority of the Court led by Justice Sandra Day O’Connor upheld the University of Michigan law school’s race-conscious admissions policy. The majority concluded that the school’s use of race it its admission policy supported a compelling educational interest and did not violate the Constitution’s Equal Protection Clause.

    After the Grutter opinion, opponents of race-conscious admissions policies formed to advocate for a ballot initiative, Proposal 2, banning the state’s universities and colleges from using such policies. After voters approved the initiative, a group of civil liberties groups, including the NAACP LDF, formed to lodge a lawsuit against Proposal 2. Eventually the U.S. Court of Appeals for the Sixth Circuit ruled against Proposal 2, saying it subverted equal protection rights.

    LDF’s President and Director-Counsel Sherrilyn Ifill said today that Michigan’s Proposal 2 “unconstitutionally gerrymanders Michigan’s political process and relegates the critical topics of racial diversity and access to educational opportunity to a separate, distant, and far more cumbersome playing field – one that is unplayable for all practicable purposes.”

    LDF notes Proposal 2 has already led to a decline of minority enrollment, citing a University of Michigan study that shows African-American “undergraduate enrollment fell from 6.7 percent in 2006 to 4.5 percent in 2010.”

    The justices heard oral argument in Fisher last fall.

  • March 22, 2013
    Guest Post

    by Eric J. Segall, Professor of Law, Georgia State University College of Law. Professor Segall is author of Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges. This post is part of an ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.

    Progressives and liberals in favor of same sex marriage need to be careful what they wish for when the Court decides the Defense of Marriage Act (DOMA) and Proposition 8 cases later this term. It would be easy to argue that the Court should overturn DOMA and invalidate Proposition 8 on the grounds that governmental classifications based on sexual orientation require heightened scrutiny, and neither California nor the federal government can satisfy that standard. The problem with the Court imposing a national rule, however, may be a serious backlash against the decision resulting in long term pain for everyone on the left. The lessons of Roe v. Wade might be instructive.

    In the years preceding Roe, there was a popular momentum flowing through the states to make the right to choose a bit easier but legislative efforts to secure the right were blocked by the efforts of a strong and well-funded Catholic minority. There is a similar momentum now (albeit only recently) on the issue of same-sex marriage. The Court’s decision in Roe, however, not only slowed the momentum but created a significant backlash though not in the traditional way most people think. In ground breaking work, Professors Reva Siegel and Linda Greenhouse have suggested that, when it comes to the right to choose, women truly are better off today than they would have been without Roe, and that the case for backlash after Roe is overstated. They may be right when it comes to the right to choose, but they did not purport to ask another related but equally important question. Although the backlash on abortion specifically may be overstated, the use of the Court’s decision in Roe by right wing groups on issues other than abortion has been a major problem for the left. The rise of the New Right in the 1970’s led by Jerry Falwell and Phyllis Schaffly, the emergence of brash, young,  and conservative anti-choice republicans  and judges in the 1980’s, and the difficulty of confirming liberal judges in the Senate, can in significant part be traced to the criticism of the Court’s decision in Roe. As Cass Sunstein has argued, the rise of the Moral Majority was certainly assisted by opposition to Roe. Meanwhile, as far as the long-term effectiveness of Roe is concerned, not only does the case currently hang by the thread of Justice Kennedy’s robes, but in many states between the two coasts poor women still have an enormously difficult time securing safe, affordable abortions. This is not to say that the Court erred in Roe, but it is a fair question whether the backlash to the decision across a broad range of important issues was worth the somewhat limited abortion rights gained by the decision.

  • March 21, 2013
    Guest Post

    by Kevin M. Cathcart, Executive Director, Lambda Legal. Cathcart’s piece is a part of Lambda Legal’s blog roundtable, “From Sex to Marriage: How We Got From Lawrence v. Texas to the Cases Against DOMA and Prop. 8.” The roundtable will include commentary from Paul M. Smith, an ACS Board Member, and the attorney who argued Lawrence before the Supreme Court. See ACSblog’s symposium on Hollingsworth v. Perry and U.S. v. Windsor.

    It might be hard for some to imagine, given the rapid pace of our progress, but as recently as 10 years ago, lesbian and gay Americans in many states were considered criminals in the eyes of the law—simply for having sex with someone of the same gender.

    And the discrimination went far beyond criminal law. Parents were denied custody of their children. Qualified workers were turned down from jobs. Prospective tenants were refused housing. All because of archaic and discriminatory laws that targeted and criminalized same-sex intimacy in 13 states.

    But in 2003, one Supreme Court decision changed everything. After decades of fighting against sodomy laws, Lambda Legal’s historic victory in Lawrence v. Texas opened a new path toward LGBT equality. For the first time, the Court established that lesbian and gay men share the same fundamental right to private intimacy with another adult that heterosexuals have.  

  • March 20, 2013
    Guest Post

    by Anthony S. Winer, Professor of Law, William Mitchell College of Law, Saint Paul, Minnesota. This post is part of an ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.

    As most readers realize, the Supreme Court asked all parties in both of the upcoming marriage cases to brief and argue issues of standing. The possibility that either or both of the cases could be dismissed on the basis of a lack of Article III standing should therefore be taken seriously. 

    In particular, regarding the Prop 8 case, Hollingsworth v. Perry, I have given some thought to a 2011 opinion of the California Supreme Court that specifically addressed the standing of the Prop 8 proponents.   The Prop 8 proponents emphasize this California opinion in defending their standing before the U.S. Supreme Court. However, in this posting I assert that the U.S. Supreme Court should not give any substantial weight to the California Supreme Court’s opinion.

    To start with, I’ll say that dismissal for lack of standing in either or both of the cases could have at least a modestly positive result for same-sex marriage rights. A lack of standing in either case would be attributed to the litigants petitioning the Court in opposition to same-sex marriage.  Failure of standing would thus go against the opponents of same-sex marriage. Contrarily, any such dismissal is most likely to favor, at least to some extent, the litigants who are advancing same sex-marriage. For those of us supporting same-sex marriage rights, that would most likely be a positive development. 

    By the same token, however, any such dismissal would also probably result in a relatively narrow ruling with relatively limited effects. That is, in the Prop 8 case, dismissal for the proponents’ lack of standing could result in the reinstatement of the District Court’s determination that Prop 8 is unconstitutional. But such a result would not necessarily affect the constitutionality of similar propositions adopted in other states.