Windsor and Obergefell: Marriage Equality as Equal Dignity

by Steve Sanders, who teaches constitutional law, constitutional litigation, and family law at the Indiana University Maurer School of Law.  He was co-counsel on the Human Rights Campaign’s amicus brief in Obergefell v. Hodges.    

The mid-summer anniversaries of Supreme Court’s marriage equality decisions, United States v. Windsor (2013) and Obergefell v. Hodges (2015), should be celebrated not only for the ends they accomplished – ending the federal non-recognition of same-sex marriages, then bringing about full nationwide marriage equality – but for the way they elevated gays and lesbians to a place of constitutional dignity.  This principle of equal dignity must play a central role as the legal and political movements for LGBT equality continue to evolve.

The Supreme Court laid important groundwork for marriage equality in Romer v. Evans, where it observed that states could not single out gays and lesbians for special legal and political disadvantages that were intended “not to further a proper legislative end but to make them unequal to everyone else.”  It continued the project in Lawrence v. Texas, where it said gays and lesbians “are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime” under sodomy laws.  In earlier posts on this blog, Sarah Warbelow and Paul Smith have reflected on the significance of these cases.

Marriage equality was, of course, a considerably larger and more controversial question, because it implicated the social meaning of homosexuality and whether gays and lesbians were entitled to have their lives and relationships accorded the same value and respect by government as heterosexuals.  Religious conservatives and their agents in the Republican Party had been working for years to prevent the possibility of such equal dignity. The federal Defense of Marriage Act (DOMA), which was struck down in Windsor, and the state bans on same-sex marriage, struck down in Obergefell, represented some of the worst characteristics of American politics. They were enacted through campaigns of fear, dishonesty and anti-gay animus. One of the marriage bans invalidated by the Supreme Court was a Kentucky state constitutional amendment passed in 2004; a state legislator told the Louisville Courier-Journal at the time that the amendment’s supporters had shown “an unparalleled level of zeal, intolerance and hatred” toward gays. In 2010, the federal judge who struck down California’s Proposition 8 found that the campaign in support of that 2008 ballot measure had presented voters with a “multitude of … advertisements and messages” intended to “convey[] to voters that same-sex relationships are inferior to opposite-sex relationships and dangerous to children.”

As challenges to DOMA and state marriage laws made their way through the federal courts, two things were becoming clear. First, these laws rested on flimsy and disingenuous justifications that were easily dismantled by most judges who confronted them. Second, public opinion was undergoing a stunning sea change, and a majority of Americans were becoming ready to accept marriage equality. Social change was moving hand-in-hand with legal change.

When these cases eventually reached the Supreme Court, the justices spoke with blunt and refreshing candor about the malevolent motives of DOMA, and the harmful effects of state laws that persisted in treating gays and lesbians as second-class citizens.  Justice Kennedy’s majority opinion in Windsor recognized that “interference with the equal dignity of same-sex marriages … was more than an incidental effect of” DOMA.  “It was its essence.”  DOMA’s “avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma.”  Two years later in Obergefell, Justice Kennedy explained that where states barred same-sex couples from marriage, the “harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives.” Pointedly excluding gays from marriage “has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.”

What is perhaps most striking about these opinions is the warm empathy and respect they convey toward gays and lesbians. Justice Kennedy wrote movingly about Edie Windsor and Thea Spyer, the couple at the center of Windsor, and about how they had “longed to marry.” In Obergefell, Kennedy summed up the crux of the case in two sentences. The gay and lesbian couples who had filed the challenges, he said, “ask for equal dignity in the eyes of the law. The Constitution grants them that right.” (Earlier this spring, I interviewed Jim Obergefell in front of a law school audience about his journey as a plaintiff in a landmark constitutional case; the video is available here.)

Given how controversial same-sex marriage was for more than 20 years, and notwithstanding a few vulgar sideshows like the Kim Davis spectacle last summer, it is remarkable how easily the reality of legal same-sex marriage has become integrated into the tapestry of American life. According to data from the Williams Institute at UCLA, 132,000 same-sex couples married after Obergefell, bringing the total of married same-sex couples in the U.S. to almost half a million.

Yes, there was been backlash against LGBT progress in the far-right-controlled legislatures of a few states like Mississippi and North Carolina. As legal challenges to these laws move forward, we must hope that lower federal courts will draw lessons from Windsor and Obergefell about the importance of clear-eyed candor toward anti-LGBT laws, and about the constitutional principle of equal dignity that weighs against them.

A Tribute to Judge Richard Cudahy

by J. Paul Oetken, U.S. District Judge for the Southern District of New York

Judge Richard D. Cudahy, who served for 36 years on the United States Court of Appeals for the Seventh Circuit, died last month at the age of 89. He was beloved by his family and friends, his colleagues, and his many law clerks. He was also admired as a brilliant and influential jurist whose opinions shaped the development of the law in myriad ways.

I served as one of Judge Cudahy’s law clerks from 1991 to 1992, and that year was one of the most rewarding and interesting of my career. The judge was not only a kind and generous boss; he was also a great teacher and mentor. We discussed every case in detail, and through that process I gained great insight into how he thought about law and justice.

Judge Cudahy’s approach to the law was humanistic and pragmatic; he was neither formalistic nor result-oriented. He cared deeply about the judicial craft, taking great care to write opinions that were well-reasoned and principled, while always being particularly sensitive to how legal doctrine affects people’s lives. His sense of fairness and even-handedness pervaded his evaluation of every case, regardless of the background of the litigants involved.  In a prisoner’s appeal in a civil rights case, Judge Cudahy wrote (in response to a colleague’s economic analysis):  “Since the financial net worth of most prisoners is zero and their economic value while incarcerated perhaps less than zero, it is not surprising that efforts to take them seriously as human beings are sometimes scorned. They are not all Jean Valjean, but they are people.”

The judge was modest as a jurist, just as he was modest as a person. He did not pretend that an outcome was obvious when it was not, nor did he construct fancy theories to dictate results of cases.  He was an honest judge who practiced his craft straightforwardly.

He was also extraordinarily hard-working and well-prepared. Every night he would carry a heavy stack of briefs home with him.  When we discussed our cases, he had always read the briefs thoroughly and had his own views (and questions) about each of the issues presented.  He had high standards for his written opinions, going over drafts repeatedly until he was satisfied that an opinion was right, both in its result and in its explanation.

According to his colleague Judge Richard Posner, Judge Cudahy “established himself as one of the nation’s most productive and influential appellate judges, with particular interest and expertise in regulatory and commercial cases, and with a strong liberal voice.” The judge wrote nearly 2,000 published opinions as a judge, including many particularly important opinions in the fields of antitrust, administrative law, civil rights, constitutional law, and criminal procedure.  He was well known for his powerful dissenting and concurring opinions, and he wrote separately more often than most appellate judges.

For all his conscientiousness and passion for the law, the judge was courteous and respectful toward lawyers and litigants.  He was a gentleman in court and out of court. As law clerks, sometimes we would suggest what we thought was a clever metaphor or literary allusion or colorful phrase in an opinion (usually in a footnote). Judge Cudahy would occasionally adopt the suggestion, but only if two conditions were met:  (1) it was not gratuitous, but added to the substantive discussion in some way, and (2) it was not at the expense of a party or a lawyer in the case, who deserved respect.

Judge Cudahy graduated from West Point and Yale Law School, and he had a remarkably wide-ranging set of experiences before joining the bench: Air Force officer; State Department lawyer; CEO of a corporation; law firm partner; law professor; chairman of the Wisconsin public service commission; chairman of the Wisconsin Democratic Party. He authored many articles and speeches in the areas of energy law and administrative law. His interest and expertise in these areas led his law clerks and staff to found the Richard D. Cudahy Writing Competition on Regulatory and Administrative Law, which is run annually by ACS. The judge was very proud of that competition and pleased to be associated with ACS.

Judge Cudahy had 83 law clerks during his tenure on the bench, which began with his appointment by President Carter in 1979.  Of his 83 law clerks, five have become judges; eighteen have become professors; and dozens more have worked in public service and in the private sector throughout the country. As a judge, I find myself frequently thinking about how Judge Cudahy would approach a case or an issue.  I am reminded every day of what an extraordinary role model I had -- and continue to have -- in Judge Cudahy.

Judge Cudahy leaves a tremendous legacy in the hundreds of opinions that contributed to the development of the law, but also in the many law clerks, students, lawyers, and others who had the privilege of knowing him and being affected by his brilliance, his humanity, and his decency.

How Textualism Postures

by Joseph Kimble, Distinguished Professor Emeritus, WMU-Cooley Law School

*This post is part of ACSblog’s 2015 Constitution Day Symposium.

In Reading Law, Justice Antonin Scalia and Bryan Garner make this assertion about the interpretive theory called textualism, which they endorse and expound:

[W]e must lay to rest at the outset the slander that [textualism] is a device calculated to produce socially or politically conservative outcomes. Textualism is not well designed to achieve ideological ends, relying as it does on the most objective criterion available: the accepted contextual meaning that the words had when the law was enacted. A textualist reading will sometimes produce “conservative” outcomes, sometimes “liberal” ones. [Reading Law, p. 16.]

But that assertion is belied by the overwhelmingly conservative results that textualism does in fact produce, especially in the cases that matter most. Who can honestly doubt it?

In a recent article, I’ve summarized six empirical studies. (See pp. 30–35 for details and attribution.) Four of the studies show a strong ideological bent in Justice Scalia’s opinions. Another concludes from an analysis of more than 600 Supreme Court cases that the textual canons of construction “are regularly used in an instrumental if not ideologically conscious manner.” The other study examines a 25-year set of the Court’s cases and concludes that a principal defense of originalism — its constraining effect on judges — “is overstated at best and illusory at worst.”

In one of the studies, Professor Geoffrey Stone polled colleagues to identify the 20 most important Supreme Court cases since 2000. In every one, Justice Scalia voted for the conservative position. And Stone notes that originalism “in no way” explains that voting record.

Besides the empirical studies, I cite 11 other sources that cast doubt on the neutrality and consistency of Justice Scalia’s textualism. (P. 35 note 96.)

My contentions are these:

  • Most importantly, at least as textualism is practiced, it has no claim to rising above politics — no claim to ideological purity or neutrality.
  • The fact that Justice Scalia may have supported some “liberal” decisions is largely insignificant in light of his overall record.
  • It’s no answer to cite the record of other judges or to argue that other theories are even more open to manipulation: textualism purports to operate on a loftier “rule-of-law” plane. But it doesn’t.        
  • As stated by Professor Margaret Lemos, textualism and its alternatives have become “political brands, marking judges as liberal or conservative.” (P. 37.) Textualism is, of course, the conservative brand.

My article also addresses textualism’s well-known antipathy toward almost all legislative history as an aid to interpretation. I list a dozen arguments to support its validity and value — including its constitutional and historical foundation, the realities of the legislative process, the bipartisan view of lawmakers, and recent real-world studies of congressional and legislative drafters. (Pp. 38–40.) The canons of construction, as a group, have no superior claim to legitimacy, orderliness, reliability, or acceptance. And judges are no less capable of making informed, sensible decisions about legislative history in a case than they are about sorting through the interplay of the canons

To get an idea of how bewildering that interplay can be, you could start on the first page of the article. Or start on 28 for more on textualism’s (supposed) objectivity and (misguided) rejection of legislative history.

Obergefell v. Hodges: A Note to Future Self

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.

Make no mistake, today is a joyous day. Most immediately, I celebrate with my clients in the Oklahoma marriage equality case, who after decades as loving, second-class couples last year won the right to marry in our home state, and who now have gained the freedom to travel across America with all the privileges and protections of marriage.

I am also elated that my children will grow up in an America ‒ and increasingly, a world ‒ where yet another class of once-marginalized persons will experience less discrimination and enjoy greater freedom. But what better way to celebrate Obergefell ‒ besides marrying, of course, if one is so situated ‒ than to adopt the forward-gazing vigilance of Lincoln in his memorial to the certainty that there remains equality left to secure tomorrow which even those of us who are jubilant today might resist.

Not the End of the Road: The Struggles That Remain After Marriage Equality

by Camilla Taylor, Counsel and Marriage Project National Director, Lambda Legal. Ms. Taylor is a member of the Advisory Board the Chicago Lawyer Chapter.

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

As the four legal teams representing same-sex couples from Ohio, Kentucky, Tennessee and Michigan left the Supreme Court after oral argument in Obergefell v. Hodges, we felt overwhelmed by the significance of the moment.  The Supreme Court is now poised in our combined cases to decide whether the Constitution guarantees same-sex couples the freedom to marry.  Many of us had worked toward this day for well over a decade or longer.

A victory in Obergefell would be transformative. Our
struggle for the freedom to marry has always been about far more than marital protections; at its essence, our struggle is nothing less than a demand for formal recognition of our common humanity and of the legitimacy of all families.  A win for same-sex couples and their children will breathe new life into our country’s promise of liberty and equality.  Children of same-sex couples will be able to grow up free of government-imposed stigma, and with pride in themselves and in their families.  Lesbian and gay youth will be able to hold their heads higher, secure in the knowledge that they may form families worthy of equal respect in the eyes of their government.

However, while a victory in Obergefell would be historic, it would not be the end, even for our marriage work.  A movement to secure civil rights is never finished by a Supreme Court ruling, no matter how important that ruling may be.

As we have seen after past marriage court victories, states determined to discriminate do not simply give up.  Instead, for example, they fight to deny the children of same-sex spouses two-parent birth certificates.  Same-sex spouses who were precluded from marrying until recently, or whose marriages were denied recognition as a result of discriminatory state marriage bans, may still have to fight for crucial marital protections subject to a relationship duration requirement (such as social security benefits for a surviving spouse, which accrue only to those who were married for more than nine months under state law).

An Obergefell victory also would highlight the significant non-marriage work left to do to protect lesbian, gay, bisexual and transgender people from discrimination in employment, public accommodations, housing, credit, education and other arenas.  No federal law explicitly prohibits such discrimination based on sexual orientation or gender identity.  29 states lack any state law explicitly prohibiting such discrimination based on sexual orientation, and the number climbs to 32 with respect to gender identity.  Thus, a win in Obergefell would create a world in which same-sex couples could marry, but still lose their jobs or be denied a mortgage or an educational opportunity for doing so.

Other work remains, too.  We must continue our efforts to prevent bullying of LGBT youth in school, police misconduct and criminalization of people living with HIV, and we must increase access to medically necessary care, particularly for trans people and people with HIV.  We must also continue to broaden acceptance by courts, agencies and others that discrimination based on gender identity and sexual orientation necessarily constitutes sex discrimination under Title VII and other sex discrimination laws and regulations.

However, even as we press forward with these priorities, our movement faces a grave new threat.  Our well-funded opponents have not given up, either.  Instead, they have orchestrated a deluge of bills in about half the states ‒ approximately 100 bills by most counts ‒ designed to allow businesses, public employers and other institutions to use religious justifications to deny service to lesbian and gay people or treat them as unmarried.  These religious refusal laws threaten to eviscerate nondiscrimination laws even before we succeed in passing them.  Moreover, these bills not only constitute explicit invitations to discriminate against LGBT persons, but put others at risk of serious harm as well.

For example, legislators in Texas, Alabama and Michigan are considering a series of so-called “conscience clause” bills that would allow state-funded child placing agencies to refuse to place a child with potential foster or adoptive parents if the placement conflicts with the agency’s “religious or moral” convictions, including restricting potential LGBT foster and adoptive parents.  These bills are thinly-veiled attempts to single out LGBT foster and adoptive parents at the expense of thousands of children in foster care in these states who lack a stable, loving family to care for them and potentially provide a permanent adoptive home.

As another example, recent outrage about religious refusal bills in Indiana (SB 101) and Arkansas (HB 1228) prompted revisions but not vetoes, leaving new harmful laws in place.  Although legislators amended Indiana’s law to limit its application in discrimination contexts, Indiana still lacks any statewide nondiscrimination law based on sexual orientation or gender identity.  Additionally, the amendment did nothing to fix the way in which Indiana’s new broad religious refusal law threatens particular harm to women, transgender people and people living with HIV.

In other words, when women seek health care from a pharmacist or a doctor, Indiana’s religious refusal law still invites medical providers to point to their own religious beliefs in denying care.  This isn’t simply a hypothetical scenario.  In Benitez v. North Coast Women’s Care Medical Group, California doctors refused infertility treatment to our lesbian client, citing their religious beliefs.  Just last month, a Georgia pharmacist acknowledged denying medication to a woman who was miscarrying, also relying on religion.  Because only women and not men are prescribed certain medications such as birth control pills, courts regrettably may not treat a refusal to provide this health care as discrimination.  Consequently, an amendment to limit use of a religious refusal law in discrimination contexts may be no fix at all for this type of problem.

Religious refusal laws also threaten similar injury to people with HIV who frequently have particular health needs not shared by others.  Health care providers have pointed to religious reasons for denying people living with HIV access to life-saving treatment.  Transgender people already face pervasive discrimination in health care settings, and religious refusal laws put them at particular risk as well.

The new challenge posed by religious refusal laws will be among the toughest the LGBT community has ever faced.  Our civil rights movement has seen extraordinary progress in the last ten years.  In little over a decade, LGBT persons have gone from being presumed criminals to being able to marry in 36 states and hopeful for a pivotal victory securing the freedom to marry nationwide.  However, regardless of how the Supreme Court rules next month, our work continues and some of our greatest battles are still ahead of us.

The Case for Officer Body Cameras and Sensible Legislation Surrounding Them

by Nashwa Gewaily, Fellow at the ACLU of Massachusetts.

On the evening of March 27, an apparent shootout left a police officer critically wounded and a man dead on the streets of Boston’s Roxbury neighborhood. As word of the incident spread, divergent narratives emerged and questions abounded across social media and news sites. In the aftermath, the Boston Police Department and its commissioner were widely praised in traditional media outlets for quickly sharing with select community figures an unbiased account of what had transpired: video footage from a nearby business that captured critical moments of the encounter.

In the wake of a number of high-profile fatal police encounters, followed by community outrage and mass demonstrations, one could easily anticipate the heavy cloud of tension over Boston had nothing been produced to clear the air.  This incident is one of tragic many that reveal the benefits of capturing police encounters on video.

Yet, it comes at a time when states are scrambling to make it much more difficult for police incident footage – specifically, police encounters recorded by body-worn cameras – to see the light of day. Citing privacy concerns, legislators in at least 15 states have introduced bills that would exempt from public records law or otherwise limit the disclosure of police-civilian encounter footage obtained from body cameras.  While there is certainly an obvious need to protect the privacy of anyone videotaped by police, the over breadth of many of the proposed rules only serve to undermine the transparency that is sorely needed to bring accountability to police departments.

As the national conversation about body cameras continues to evolve post-Ferguson, privacy has become the lightning rod issue.  Any use of police body cameras must be accompanied by strong, stringently enforced policies and practices – particularly when it comes to preventing surveillance of First Amendment-protected activities, safeguarding expectations of privacy in one’s own home, honoring individual requests not to record interactions, giving notice to subjects being recorded, and deleting footage that is not flagged for review.  It is critical to strike the proper balance between individual privacy and police accountability interests, between common sense measures against voyeuristic video disclosures and the need for informed public oversight of police behavior.

But what is clear is that privacy interests should not be wielded as a cudgel to shut down consideration of implementing body cameras altogether.  The issue deserves serious engagement, not derailing a discussion on balancing interests with straw-man distractions. (“Do you have the body camera on when you go to the bathroom?” No, Boston Police Superior Officers Union President Jack Kervin, probably not.)  Here in Boston, a robust public discussion to formulate appropriate public records guidelines is not even on the horizon. That’s because Boston continues to lag behind other police departments that have taken proactive steps to improve their policing. Beyond noncommittal statements about their openness to discussing body cameras, Boston’s mayor and police commissioner have given no indication of plans to make real changes in the department.

And that’s a shame considering the potential to drastically improve the state of community policing in Boston and across Massachusetts, as officials want to do.  Police officers, just like everyone else, behave differently when they know they are being watched. It follows that officers would be much less likely to engage in abusive, racially discriminatory, or harassing behavior when they are on heightened notice of possibly being held to account. This is compelling reason enough in a city that has subjected thousands of its residents to racially-biased, unjustified intrusions on its streets.

Although we have yet to see how body cameras will play out in the long-run, one widely cited study shows that use of the device has led to a 60 percent drop in use of force and a nearly 90 percent drop in complaints against police in Rialto, California last year. More recently, similarly promising results were found when the San Diego Police Department tested their use.  Police departments across the country, in small towns and big cities alike, are deploying, testing, or seriously analyzing the use of police body-worn cameras. Here in Boston, when it comes to genuine police reforms we can only hope that a police department that claims “the highest of standards” will take some cues and catch up to towns like Gill, Massachusetts, where a single officer has been outfitted with a body-worn camera.

The Boston Police Department’s video disclosure following the recent Roxbury shootout is a good example of increasing transparency around police actions, despite the limited nature of this particular release. But police must be willing to uphold the same values of transparency when video captures unjust and illegal police misconduct as when video potentially exculpates the police themselves. Police forces can work toward relationships with the public that engender trust and respect, but these efforts won’t succeed unless they are accompanied by a genuine commitment to meaningful reforms.  Body-worn cameras are no panacea for unaccountable police. But if they can lead to fewer abuses, less misconduct, more professionalized police forces and fewer deaths on the street, then their benefits far outweigh their potential for undue privacy intrusions.

It should serve as a galvanizing moment for the Boston Police Department to seriously engage with calls to equip its officers with body-worn cameras.