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February 28, 2013
Obama Administration Says California’s Proposition 8 Violates Equal Protection
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.

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Civil rights, Supreme Court, Other courts, LGBT issues, Constitutional Interpretation and Change, Equality and Liberty, Adam Liptak, Californai, Defense of Marriage Act, DOMA, Hollingsworth v. Perry, Lyle Denniston, Obama administration, Proposition 8, U.S. v. Windsor
February 27, 2013
The Judicial Nominations Waiting Game
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.

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Access to Justice, Federal judicial selection, Other courts, Judicial Nominations, Caitlin Halligan, D.C. Circuit, filibuster, judicial confirmations, President Obama, Sen. Harry Reid, Sen. Mitch McConnell
February 21, 2013
Jury Duty is Constitution Duty
BookTalk

Why Jury Duty Matters

A Citizen's Guide to Constitutional Action

By:
Andrew Guthrie Ferguson

Available here

by Professor Andrew Guthrie Ferguson, assistant professor of law at the David A. Clarke School of Law at the University of the District of Columbia.

Every year approximately 30 million American citizens get an invitation to constitutional action in the form of a jury summons. Most dread this core constitutional obligation. Forgotten is the jury’s connection to American history from the Declaration of Independence to the Civil Rights Movement. Ignored are the meaningful, foundational lessons of citizen-jurors over two centuries.

Why Jury Duty Matters: A Citizen's Guide to Constitutional Action (NYU Press 2013) was written to change that negative reaction to jury duty. This book is the first book written for jurors on jury duty and seeks to inspire an appreciation of this important American institution. It is a book that will make jury service personally meaningful and will strengthen constitutional literacy in America.

This book does much of what ACS does – translate constitutional ideas so that ordinary people can understand the importance of the Constitution. As a trial lawyer for nine years, I watched jurors every day in the courthouse. I witnessed how they missed the constitutional value of jury service. This book was my gift back to those citizens, and to the millions of future jurors who will serve in the coming years. It is a how-to book for democratic practice. It is a primer on constitutional principles. It is an argument for reclaiming the central place juries have played in our society. Professor Neil Vidmar wrote, “Copies should be placed in the jury assembly rooms of every courthouse.” Professor Nancy Marder, Director of the Jury Center at Chicago-Kent College of Law recommended, “Every court should give prospective jurors a copy of this book so that they will understand the jury’s integral role in our democracy.”

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Other courts, Constitutional Interpretation and Change, Andrew Ferguson, BookTalk, constitutional duty, improtance of jury duty, jury duty, Why Jury Duty Matters
February 21, 2013
Sens. Push Equality Measure for LGBT Military Families
by Jeremy Leaming

The U.S. Supreme Court will soon wade into the debate over the constitutionality of same-sex marriage, when it hears oral argument next month in two cases with potentially significant implications for marriage equality. (Hollingsworth v. Perry focuses on the constitutionality of California’s Proposition 8, which yanked marriage rights from lesbians and gay men, and in Windsor v. U.S. the justices will review an appellate court ruling that invalidated a major provision of DOMA as a violation of the Constitution’s equal protection clause.)

But some congressional lawmakers are not waiting around to hear from the high court. Two senators are advancing equality on another front – for military same-sex spouses, by ensuring LGBT military families receive some of the same benefits that their straight counterparts enjoy. (Yes, as noted here, efforts to advance significant legislation in Congress are almost futile. Conversely liberal lawmakers in Congress cannot or should not cower from a radical anti-government agenda pushed by an increasingly right-wing Republican Party.)

The Charlie Morgan Military Spouses Equal Treatment Act of 2013 would “require the Department of Defense and Veterans Affairs to honor any marriage that has been recognized by a state and provide a number of key benefits to the spouses of all servicemembers." The legislation is sponsored by Sens. Kirsten Gillibrand (D-N.Y.) and Jeanne Shaheen (D-N.H.), and is named after National Guard Chief Warrant Officer Charlie Morgan who died of breast cancer earlier this month. Morgan’s wife, Karen, is not eligible for survivor benefits because the military does not recognize same-sex marriages.

In a press statement about the measure, Sen. Gillibrand said it would be “an important step forward in achieving full equality for all of our men and women serving and fighting for our nation. Same-sex partners of military servicemembers should not be denied essential benefits because of who they are.”

Sen. Shaheen said, “Charlie served on the front lines for our country, but because of her sexual orientation her family is wrongfully being denied many of the same benefits given to those who stood beside her. That is an unacceptable reality and I’m committed to doing all I can to make sure that no spouses, children and families are denied benefits they have earned and rightly deserve.”

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Tags:
Supreme Court, Other courts, LGBT issues, Constitutional Interpretation and Change, Equality and Liberty, Charlie Morgan Military Spouses Equal Treament Act, Hollingsworth v. Perry, marriage equality, military families, President Obama, Sen. Jeanne Shaheen, Sen. Kirsten Gillibrand, Windsor v. U.S.
February 19, 2013
President's Rhetoric, Popularity Muddling Discussion over Drone Policy
by Jeremy Leaming

Lawmakers, on national and state fronts, seem a bit more interested in knowing more about the Obama administration’s use of drones in targeted killings abroad and possibly some regulation of the counterterrorism measure. After the weak “white paper,” apparently a brief summary of several documents created by lawyers in the Office of Legal Counsel was made public by NBC, lawmakers and a few more journalists have discovered greater interest in the administration’s use of drones to take out suspected terrorists overseas.

But reporting for Salon, Joan Walsh points to some polling that suggests that the administration’s expanding and secretive use of drones is getting a pass from and even winning over some liberals, who were not shy about blasting the Bush administration’s egregious legal reasoning used to justify torture of military detainees.

A poll of 1,000 voters from last summer, conducted by Brown University political scientist Michael Tesler, “found significantly more support for targeted killing of suspected terrorists among white ‘racial liberals’ (i.e., those liberal on issues of race) and African Americans when they were told that Obama supported such a policy than when they were not told it was the president’s policy.”

Walsh’s piece explains Tesler’s work, including some caveats, but concludes the polling suggests that respondents “reaction may be informed by their support for the president, which is at least a little bit troubling. The U.S. is moving into uncharged political, military and moral territory with the use of drones, as well as expanded claims of presidential powers on targeted killings, on what seems to be a global battlefield in time of endless war.”

The support for counterterrorism policy solely or mostly on favorability of the president is highly disconcerting. Especially since the legal reasoning we’ve seen so far looks a lot like a just-trust-me policy. Indeed from a Dish post a couple weeks back, Andrew Sullivan blasted the wobbly white paper for its “corruption of the English language” and for coming “perilously close to the equivalent of ‘Because I said so.’ And the core message is trust me.’”

Rolling Stone’s Matt Taibbi notes the “histornics and gymnastics some people have resorted to in their efforts to defend this infamous drone program. Extralegal murder is not an easy thing to manufacture consent around, and the signs of strain in the press have been pretty clear all around.”

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Tags:
Civil rights, Executive power, National security and civil liberties, Other courts, Constitutional Interpretation and Change, Criminal Justice, drone war, drones, Joan Walsh, Obama administration, Targeted Killings

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