Individual liberties

  • May 8, 2015
    Guest Post

    by John Paul Schnapper-Casteras, Special Counsel for Appellate and Supreme Court Advocacy at the NAACP Legal Defense and Educational Fund, Inc., which filed a brief in support of marriage equality, together with the NAACP. Follow him on Twitter @jpscasteras.

    It was a familiar scene at the U.S. Supreme Court: states argued that allowing certain couples to marry would impose long-term harms upon children, families and social institutions. They contended that it is not the judiciary’s place to scrutinize restrictions upon the freedom to marry.  And they fell back upon the claim that the definition of marriage is a longstanding tradition.

    No, I’m not talking about last week’s argument on same-sex marriage; I’m referring to the 1967 case of Loving v. Virginia, which ultimately struck down bans on interracial marriage as unconstitutional. Switch a few names and adjectives and you could have approximated swathes of the oral argument from 48 years ago, listening to Virginia defend a central vestige of segregation.  Indeed, Virginia now acknowledges that it had supported interracial marriage bans and school segregation with “the same arguments offered by marriage equality opponents today” and powerfully concedes that it was on the “wrong side” of those issues.

    The resemblance should come as no surprise.  Civil rights groups like the NAACP Legal Defense Fund and NAACP have long advanced briefs and analyses about the logical and legal parallels between interracial marriage and same-sex marriage.  Recently, Bloomberg and the Wall Street Journal released new studies comparing our nation’s ability to progress on these two issues.  Courts around the country have recognized the enduring relevance of Loving’s holding that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness” and that “all the State’s citizens” possess a fundamental right to marry.

    Likewise, last week, the justices repeatedly focused on Loving, referencing it ten times in the transcript and another half-dozen times indirectly.  Justice Kagan explored how “Loving was exactly what this case is” and Justice Breyer explained that the states’ reliance upon tradition today is “the same way we talk[ed] about racial segregation.”  The Solicitor General put it eloquently: allowing states to discriminate against same-sex couples “will approximate the nation as a house divided that we had with de jure racial segregation,” and he did not “know why we would want to repeat that history.”

  • April 28, 2015
    Guest Post

    by Amy Bergquist, staff attorney, The Advocates for Human Rights. Follow her on Twitter at @alb68.

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

    A decision by the U.S. Supreme Court recognizing a right to marriage equality would make headlines around the world, but the implications for the rights of people who are gay, lesbian, bisexual, transgender or intersex (LGBTI) in other countries may be complex.

    The Advocates for Human Rights collaborates with partner organizations advocating for LGBTI rights in African countries like Cameroon and Tanzania, where the governments not only criminalize consensual sexual conduct between people of the same sex, but also condone or even participate in discrimination and violence targeting LGBTI people.  We know from our partners that government officials, religious leaders, celebrities and the media fuel anti-LGBTI animus by arguing that, in African culture, “homosexuality . . . is considered universally as a manifestation of moral decadence that should be fought.”
     
    Many countries have laws on the books prohibiting sexual conduct between people of the same sex, but Cameroonian authorities aggressively enforce their country’s law; courts convict people simply for acting or dressing in a gender-non-conforming manner.  Vigilante groups in Cameroon organize patrols to round up suspected violators and hand them over to the police.  Violence and discrimination targeting LGBTI people are widespread.

    The complexity of advocacy for LGBTI rights in the international context arises out of the false characterization, in some parts of the world, of LGBTI rights as a “western invention.”  In collaboration with our partners in Cameroon, we submitted a report to Africa’s leading human rights body, the African Commission on Human and Peoples’ Rights, debunking this myth.  In Cameroon, as in many other African countries, criminalization of consensual same-sex sexual conduct is a legacy of the colonial era.  In our report, we quote Dr. Sylvia Tamale, law professor and former dean of the law faculty of Makere University in Kampala, who explains: “There is a long history of diverse African peoples engaging in same-sex relations. . . . Ironically, it is the dominant Judeo-Christian and Arabic religions that most African anti-homosexuality proponents rely on, that are foreign imports.”  Indeed, as I’ve argued at The Advocates Post, anti-gay extremists from the United States and Europe attempt to export their animus to Africa and the former Soviet Union.

  • April 28, 2015
    Guest Post

    by Samuel A. Marcosson, Professor of Law, University of Louisville Louis D. Brandeis School of Law

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

    The Supreme Court’s forthcoming decision in Obergefell v. Hodges brings the issue of marriage equality once again to a place of prominence in the national conversation.  Unsurprisingly, the intensity of opposition from those with religious convictions against “changing” the definition of marriage to include gay and lesbian couples has only grown, fueled by the prospect that the Court may extend its decision in United States v. Windsor and hold that the Constitution requires all 50 states to treat same-sex couples equally.

    The gathering storm is easy to see.  A federal court ruling striking down Alabama’s ban on marriage recognition was met with a furious, theologically-driven backlash led by state supreme court Chief Justice Roy Moore, who explained his opposition to marriage equality by saying, “It takes away the very definition ordained of God.  A different definition destroys the definition of marriage.”  On the legislative front, Indiana passed a “Religious Freedom Restoration Act” (RFRA) at the urging of anti-gay religious activists, carving out protection for those with religious objections aghast at even the potential they might be compelled by anti-discrimination laws to participate in marriage ceremonies.  Assuming that the pure rejectionist camp is unsuccessful in trying to engage in 1950s-style “massive resistance” to a pro-equality ruling in Obergefell, the real issue comes down to what, if any, sort of religious exemptions should be considered for those who do not wish to participate in the weddings of same-sex couples.

  • 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?