Equality and Liberty

  • April 28, 2015

    by Caroline Cox

    Today, the Supreme Court hears oral arguments in the same-sex marriage cases. In The New York Times, Joseph Landau explains why Chief Justice John Roberts may support same-sex marriage and argues that it “would actually be the more prudent and moderate path.”

    David G. Savage discusses in the Los Angeles Times how Justice Anthony Kennedy is “poised to be the crucial vote in deciding whether gay marriage will be a constitutional right nationwide.”

    At Bloomberg View, Noah Feldman argues that while Justice Kennedy may not clearly show his hand today, the Supreme Court will rule in favor of same-sex marriage.

    Richard Wolf of USA Today profiles Mary Bonauto, a key player in the legal fight for marriage equality and the lawyer who will argue for same-sex marriage before the Supreme Court.

    David A. Gans writes at the Constitutional Accountability Center’s Text & History Blog that a new bill in Congress seeks to strip federal courts of the ability to hear any cases pertaining to marriage, which would challenge “key aspects of our constitutional structure.”

  • April 27, 2015
    Guest Post

    by Eric J. Segall, Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law. Follow Professor Segall on Twitter @espinsegall.

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    On April 28, the Supreme Court will hear arguments challenging the same-sex marriage bans currently in place in Kentucky, Ohio, Tennessee and Michigan.  Here are my predictions for both the argument and the ultimate decision (in ascending order of certainty).

    1.      After the questioning stops and Chief Justice Roberts officially closes the oral argument with his consistent mantra, “The case is submitted,” no human being will ever be able to see any video recording (or photograph) of this historic day at the Court.  Sadly, this is a fact, not a prediction.

    2.      During the argument, Justice Thomas will 1) not utter a syllable; 2) look uncomfortable for most of the argument; and 3) eventually write a dissent saying he would of course not vote for the bans on same-sex marriage if he were a legislator but nothing in the Constitution prevents states from adopting them.  This could be avoided if Justice Thomas would just re-read the Equal Protection Clause (no “person” shall be denied the “equal protection of the laws”).

    3.      Justice Kennedy will try to out gun Judge Posner’s shredding of lawyers who tried to defend the same-sex marriage bans on the basis that they somehow further the states’ interests in the welfare of children and the family.  Kennedy will come close to matching Posner’s witty ire but he won’t succeed.

    4.      Justice Kennedy will eventually write a decision striking down the same-sex marriage bans on the basis that there are no rational reasons for the bans other than unconstitutional dislike of gays and lesbians.  His decision will not be as entertaining or persuasive as Posner’s, but it will count a whole lot more.

    5.      No Justice will ask about the perplexing amicus brief filed by “same-sex attracted” men (and their wives) arguing that overturning same-sex marriage bans would be an affront to their “dignity.”  Please don’t ask me to explain this brief.

  • April 27, 2015
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law. Follow Professor Winkler on Twitter @adamwinkler.

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    Oral argument in the Supreme Court can be opaque, especially for those who aren’t well versed in the legal issues at stake or the precedents likely to be considered.  During oral argument, the justices aren’t interested in educating the citizenry.  They are trying to gain a better understanding of the case or subtly influencing the votes of their colleagues, so the questions and comments fly  quickly—and usually right over the heads of anyone but the experts.  Because oral argument in the same-sex marriages cases will draw an extraordinary amount of public attention, here’s a list of five things to watch for when the justices hold Court on April 28.

     

    1.    Justice Kennedy

    The first and most obvious thing to pay careful attention to is the questioning by Justice Anthony Kennedy.  With four justices who lean liberal and four who lean conservative, the Supreme Court has long been the Kennedy Court.  Because Kennedy has written all the major pro-gay rights decisions of the Supreme Court in recent years, many people assume he’ll vote in favor of marriage equality.  If I were a betting person, that’s where I’d put my money, too.  Yet it’s worth remembering that Kennedy’s opinions in those cases have always been compromises.  In Romer v. Evans, he declined to say that sexual orientation was a suspect classification.  In Lawrence v. Texas, he didn’t say gay intimacy was a fundamental right that triggered strict scrutiny.  In U.S. v. Windsor, half his opinion rested on states’ rights.  If Kennedy was serious in Windsor’s ode to the traditional autonomy of states over marriage, it could spell trouble.  That’s why it’s worth paying close attention to what Kennedy says at oral argument.  Is he skeptical of the state’s arguments?  Does he express concern about the implications of overturning the marriage bans?  Or does he emphasize the harms that come from denying LGBT couples marriage?  Kennedy, in this as in most other cases, is the vote that counts.

    2.    Baker v. Nelson

    Often lost in the current debate over marriage is that the Supreme Court has already held there is no constitutional right to same-sex marriage.  Or at least that’s one way to read Baker v. Nelson, a 1971 case that raised the issue.  The Minnesota Supreme Court upheld that state’s restriction of marriage to one man and one woman, and the case was appealed to the Supreme Court of the United States.  The justices summarily affirmed the lower court decision “for want of a substantial federal question.”  In other words, the challenge to the marriage ban didn’t even raise a colorable constitutional claim.  Will the justices treat Baker as binding precedent warranting their deference under the principle of stare decisis?  There are good reasons to believe they won’t.  The law and society has changed immensely since 1971.  Back then, laws discriminating against women didn’t even trigger any form of heightened review.  Besides, do the justices ever really treat any prior decision as binding?

  • April 21, 2015

    by Jeremy Leaming

    Sheryl Sandberg and Anne-Marie Slaughter have drawn much attention for their thoughts about the professional working lives of women.  But Sandberg and Slaughter have failed to recognize or willfully ignored the stations of the vast majority of working women – those women who do not have the luxury of “opting out” or “leaning in.”  The inadequacies of our workplace laws leave many working women behind and perpetually struggling to survive.

    American Constitution Society for Law and Policy (ACS) President Caroline Fredrickson, a former labor lawyer and a longtime leader in the legal progressive community, declares a powerful response to “leaning in,” or “opting out,” which dominate discussion of inequalities facing women in the workforce.

    The discussion of workplace equality for women now focuses almost exclusively on white-collar professionals.  This discussion needs broadening.

    Fredrickson’s compelling book, Under the Bus: How Working Women Are Being Run Over, tells the stories of many women, who do not have the protection of our laws or the ability to stand up to their employers’ often illegal demands.  Indeed, for too long many employers have ignored or been exempted from laws meant to protect workers against corporate malfeasance.  Fredrickson also notes the inadequacy of our laws is ingrained in a history riven with racial and gender biases.  Time after time, Fredrickson notes that historical progressive movements to improve the lives of working Americans have left women behind.  If our nation fails to embrace collective solutions to collective problems, inequality will continue to fester in America while democracy suffers.

  • March 31, 2015
    Guest Post

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

    The controversy over Indiana’s recently enacted Religious Freedom Restoration Act shows the importance of context in understanding a law. The bill signed by Indiana Governor Mike Pence is very similar to the federal Religious Freedom Restoration Act (RFRA) and laws that exist in 19 states. But the timing of the enactment of the Indiana law and the rhetoric surrounding it give every reason to believe that it was intended to allow businesses in Indiana to discriminate against gays and lesbians based on claims of religious freedom. Governor Pence reinforced this impression when on Sunday talk shows he repeatedly refused to deny that it would have exactly this effect.

    Governor Pence constantly emphasizes that the Indiana law is much like the federal RFRA signed by President Clinton in 1993. He stresses that nothing within the Indiana law expressly authorizes discrimination against gays and lesbians.

    That is true, but Governor Pence and supporters of the Indiana law are ignoring its context. Why is Indiana adopting the law now, 25 years after Employment Division v. Smith changed the law of the free exercise clause and 22 years after the enactment of the federal RFRA?

    It is clear that Indiana’s goal is to permit businesses to discriminate against gays and lesbians. Last June, in Burwell v. Hobby Lobby, the Supreme Court for the first time held that secular corporations can claim to have a religious conscience and free exercise of religious belief. In fact, the protection of corporations and businesses is much more explicit in the Indiana RFRA than in the federal statute.

    The Indiana RFRA comes soon after the decision of the United States Court of Appeals for the Seventh Circuit declaring unconstitutional the Indiana law prohibiting same-sex marriage and soon before the Supreme Court is likely to recognize a right to marriage equality for gays and lesbians. It is telling that repeatedly in his interviews, Governor Pence refused to deny that the Indiana law would have the effect of permitting businesses to discriminate based on sexual orientation. He also was emphatic that there would be no expansion of rights for gays and lesbians on his “watch.”

    This is why there are loud protests against the Indiana law and calls for boycotts of Indiana. If Indiana does not mean to allow such discrimination based on sexual orientation, it should amend the law to provide that no one can discriminate against others based on race or sex or sexual orientation or religion based on the statute or on the grounds of religious beliefs. 

    Governor Pence has refused to say that he favors such an amendment to the law. He can’t have it both ways:  either the Indiana law was meant to allow discrimination against gays and lesbians and the vehement objections to it are justified, or the law was not meant to permit discrimination against gays and lesbians and it should be amended immediately to say this. Discrimination in the form of the refusal to do business with a person because of his or her religion or race or sex or sexual orientation is wrong whether based on religion or anything else. Until Governor Pence and the supporters of the law recognize this and amend the law to say this, the protests and boycotts are justified.