According to some accounts, King & Spalding was persuaded to drop its representation of the House of Representatives in litigation over the Defense of Marriage Act due to pressure from one of the Atlanta-based firm’s largest clients: Coca-Cola. If this is true, it raises some interesting legal ethics questions that the good folks at the Legal Ethics Forum have been exploring, including Brad Wendel, Rob Vischer, and Richard Painter. One interesting point raised by Prof. Painter here is that any communications from Coca-Cola pressuring King & Spalding to drop the DOMA defense are unlikely to be privileged. Indeed, under ABA Model Rule 1.4, King & Spalding could have to disclose such information to Congress.
Archive for the ‘Gay Marriage’ Category
It is gratifying to see that many of those who oppose DOMA have nonetheless praised Paul Clement’s willingness to defend the law, and his refusal to abandon the representation. From the Washingtonian :
Clement, who has now joined the boutique law firm Bancroft, has plenty of support among his peers in the Washington legal community. Theodore Olson, the prominent Republican attorney who made headlines when he agreed to challenge California’s same-sex marriage ban, praises Clement’s “abilities, integrity, and professionalism.” Olson, who like Clement was a solicitor general during the George W. Bush administration and is a star Supreme Court advocate, tells Washingtonian.com, “I think it’s important for lawyers to be willing to represent unpopular and controversial clients and causes, and that when Paul agreed to do that, he was acting in the best tradition of the legal profession.”
Seth Waxman, a partner at WilmerHale who served as solicitor general during the Bill Clinton administration, agrees. “I think it’s important for lawyers on the other side of the political divide from Paul, who’s a very fine lawyer, to reaffirm what Paul wrote. Paul is entirely correct that our adversary system depends on vigorous advocates being willing to take on even very unpopular positions. Having undertaken to defend DOMA, he’s acting in the highest professional and ethical traditions in continuing to represent a client to whom he had committed in this very charged matter.” Waxman’s firm is fighting against DOMA in one of the lawsuits challenging the statute.
Appellate litigator and University of Chicago adjunct law professor Steve Sanders has also written a comment on the UofC’s faculty blog:
For those of us who believe the law requires marriage equality for gays and lesbians, the firm’s decision to drop the DOMA matter is indeed, as Ben Smith of Politico writes, “a real victory for supporters of same-sex marriage — and mark[s] what seems like real marginalization for its foes.” But as a lawyer who recently worked in the Supreme Court and appellate practice group of a major national law firm, I’ve found myself uncomfortable with the demonization of Clement and K&S and with the insistence by some gay-rights supporters that defending DOMA’s constitutionality is not only legally wrong but morally unconscionable. Those who would label lawyers like Clement as (at best) amoral mercenaries do not understand how the world of public-law appellate litigation works. . . .
Clement is certainly a conservative, and he always seemed quite comfortable defending the Bush administration’s policies as SG. But I think it would be wrong and unfair to assume he must be some sort of anti-gay ideologue. I have no doubt that some of his clients in Congress might fairly be described that way. But every constitutional lawyer knows there is a basic difference between whether something is sound policy, and whether it violates the Constitution. Clement’s job in defending DOMA (he reportedly will continue the representation through another law firm) is about the latter question . . .
It’s worth remembering that until two months ago, the Obama administration’s lawyers also defended DOMA. DOMA may be an easy question as a matter of fairness and equality, but its status as a matter of constitutional law — particularly whether it should get heightened scrutiny — is not a slam dunk, and its opponents would be well advised not to confuse the two issues. DOMA is not yet before the Supreme Court, but Clement almost certainly calculated that it will get there eventually. . . .
I also think Clement was correct when he wrote in his resignation letter that his “thoughts about the merits of DOMA are as irrelevent as my views about the dozens of federal statutes that I defended as Solicitor General,” and that “[d]efending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.”
Of note, Sanders is not only an opponent of DOMA. He was also Indiana state coordinator for the Human Rights Campaign from 1998–2002 and a member of the Obama campaign’s national LGBT steering and policy committee.
UPDATE: More from Benjamin Wittes, another DOMA opponent, here.
Here’s my take on the Clement kerfuffle Orin and Eugene blog about below.
After the Obama Administration announced it would no longer defend the constitutionality of the Defense of Marriage Act (DOMA), Congress opted to defend the law on its own. The Bipartisan Legal Advisory Group retained the services of King & Spalding’s Paul Clement, a former Solicitor General who is widely considered to be among the best (if not the best) appellate advocate of his generation.
Clement’s decision to represent Congress and defend DOMA was controversial in some circles, and understandably so. Although DOMA was enacted with broad bipartisan majorities and signed into law by President Clinton, it prevents federal recognition of same-sex marriages, even when sanctioned by state law. For supporters of same-sex marriage, that’s a tough pill to swallow.
Angered over Clement’s decision, the Human Rights Campaign launched a campaign against King & Spalding, seeking to punish the firm because one of its partners dared represent a controversial client. According to HRC, the representation was “a shameful stain on the firm’s reputation.” In reality, what’s really shameful is HRC’s McCarthyite attack on Clement and King & Spalding — particularly given the nation’s sorry history of efforts to prevent effective legal representation of marginalized groups and unpopular causes.
The Los Angeles Times, which supports same-sex marriage, explained the folly of the HRC campaign in an editorial last week.
It’s perhaps understandable that leaders of an advocacy group like the Human Rights Campaign would be outraged at the idea of anyone defending a law that they so strongly believe is discriminatory. But the suggestion that it’s shameful for Clement or his firm to do so misunderstands the adversarial process. For one thing, with sharp-witted counsel on both sides making the strongest possible arguments, it is more likely that justice will be done. For another, a lawyer who defends an individual or a law, no matter how unpopular or distasteful, helps ensure that the outcome is viewed as fair. If DOMA is struck down, the fact that it was defended effectively will make the victory for its opponents more credible. . . .
In criticizing Clement’s law firm for agreeing to defend DOMA, the Human Rights Campaign contrasted that decision with the firm’s admirable record in promoting equality for gay and lesbian employees. But there is no contradiction — unless one believes that DOMA doesn’t deserve a defense. We hope Clement loses, but we don’t begrudge him the assignment. Even a lawyer of his skills will find it hard to defend a discriminatory law like DOMA.
In the end, the criticism was too much for King & Spalding, and the once-proud firm asked to withdraw its representation, citing a failure of the vetting process. Clement, to his credit, found this unacceptable, and has resigned from the firm. This is a major loss for the firm, which had been building an appellate practice around Clement, as is the firm’s apparent willingness to discard its integrity when placed under fire. King & Spalding is willing to defend Guantanamo detainees, free of charge (and rightfully so), but it apparently lacks the courage to defend controversial legislation and honor commitments to clients once retained.
When some conservatives attacked private law firms and threatened retaliation for defending accused terrorists, the bar responded with outrage — and rightfully so. (My own posts on the subject can be found here and here.) At the time, we heard all the same arguments we are hearing now from HRC and its defenders — the right to legal representation does not entail the right to representation from any particular lawyer; attorneys should be held accountable for who they choose to represent; attorneys should be punished for defending the wrong side; and so on. Similar arguments have been made throughout history in efforts to discourage representation of unpopular clients and causes. (Indeed, I would not be at all surprised to learn that law firms and prominent were once discouraged from defending homosexuals who were persecuted for their sexuality.) Those arguments were wrong in the past, and they are wrong now.
Paul Clement is to be commended for his courage and honor — whether or not he wins his case against DOMA. Even those who support same-sex marriage (as I do) should be thankful for attorneys like him who are willing to defend unpopular laws and positions, and disappointed at a large law firm’s willingness to cave so quickly. Indeed, King & Spalding has given existing and prospective clients reason to wonder whether it will stand firm if asked to defend unpopular or potentially objectionable positions on their behalf. A law firm’s reputation, once diminished, is not so easily restored.
UPDATE: Some suggest that King & Spalding may have withdrawn its representation due to objections over certain particulars in the representation agreement that would have limited the outside activities of firm attorneys. If this, and not the HRC campaign, was the concern, it seems to me that King & Spalding had plenty of options short of terminating the representation. And even if it saw no other option, say because the client refused to budge, it could have made clear this was the reason.
SECOND UPDATE: Some commenters seem to misunderstand my position. No, I do not believe the U.S. Congress is a “marginalized” group, nor do I feel it is a victim here. My primary concern is that if it is appropriate to attack law firms and attorneys based upon the identities or positions of their clients, and if major law firms can be dissuaded from maintaining representation of unpopular clients or causes, then those groups which are truly “marginalized” have the most to fear. While there is little doubt the House could obtain capable representation without King & Spalding or Paul Clement, other groups might not be so fortunate. That is what is ultimately at stake here.
THIRD UPDATE: I heartily recommend this commentary by appellate litigator and University of Chicago adjunct professor Steve Sanders. Interestingly enough, Sanders was Indiana state coordinator for the Human Rights Campaign from 1998-2002 and a member of the Obama campaign’s national LGBT steering and policy committee.
This Thursday, I will be taking part in a Federalist Society panel on President Obama’s decision not to defend DOMA in Court. Edward Whelan, President of the Ethics and Public Policy Center and prominent legal blogger for National Review, will be on the panel with me, and my colleague Neomi Rao will moderate. The panel will be held from 12 to 1:30 PM at the Rayburn House Office Building on Capitol Hill, and free lunch will be served. Registration and other details available here.
I previously defended the president’s decision here.
Last week, I defended President Obama’s decision not to defend the constitutionality of the Defense of Marriage Act, on the grounds that the administration has concluded that it is unconstitutional. Although I disagree with some of the administration’s specific legal arguments in this case, I think the president’s duty to defend the Constitution supersedes his obligation to uphold federal statutes when the two conflict.
As I mentioned in the earlier post, this is not the first time that an administration has refused to defend a federal law on such grounds.
NPR recently published a helpful summary of similar decisions by previous administrations, including various Republican ones:
While the administration’s DOMA shift is unusual, it is not rare. It has happened more than a dozen times since 2004 and many more in the past 60 years, including in some very important cases.
During the Eisenhower, Kennedy and Truman administrations, the presidents, in one form or another, refused to defend separate-but-equal facilities in schools and hospitals. The Ford Justice Department refused to defend the post-Watergate campaign finance law, much of which was subsequently upheld by the Supreme Court. The Reagan administration refused to defend the independent counsel law, a law subsequently upheld by the Supreme Court by a 7-to-1 vote. It also refused to defend the one-house legislative veto of many executive actions; in that case, the administration was more successful, winning 7-2 in the Supreme Court. The Clinton administration refused to defend a federal law mandating the dismissal of military personnel who were HIV-positive. The George W. Bush administration refused to defend a federal law that denied mass-transit funds to any transportation system that displayed ads advocating the legalization of marijuana. And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcasting licenses — a law subsequently upheld by the Supreme Court by a narrow 5-4 vote.
The fact that Republican administrations have done the same thing in the past doesn’t necessarily prove that Obama’s decision was justified. After all, as Obama himself would be quick to agree, Republican administrations make plenty of mistakes too.
The history does, however, support my point that presidential refusal to defend the constitutional of a statute doesn’t automatically lead to its defeat in Court. As NPR notes, the courts ended up upholding the challenged law in many of the cases where an administration chose not to defend it. More importantly, in all these cases the law was effectively defended by other parties, even if it was ultimately struck down.
The Obama Administration’s decision not to defend the constitutionality of the Defense of Marriage Act has inspired a great deal of criticism from commentators who believe that it is an unwise or illegitimate extension of executive power. The critics include Richard Epstein, Curt Levey, and our own Orin Kerr, among others. John Yoo argues that this is a constitutionally permissible exercise of executive power, but an unwise one that contradicts the Democrats’ position on other executive power issues.
I’m not a fan of either the Obama Administration or some of the legal arguments they have made in support of the claim that DOMA is unconstitutional. But I do think that they made the right call here. If a President genuinely believes that a federal statute is unconstitutional he has a duty not to defend it.
I. The President’s Duty to Defend the Constitution Supersedes His Duty to Uphold Federal Statutes When the Two Conflict.
Let’s start with first principles. The president takes an oath to “preserve, protect, and defend” the Constitution. His duty to uphold the Constitution supersedes his obligation to enforce federal statutes when the two come into conflict. After all, federal statutes are only legitimate in so far as they are constitutional. One of the greatest threats to the Constitution is the enactment and enforcement of unconstitutional laws that exceed the powers of government.
Ever since George Washington, presidents have exercised their own judgment in assessing the constitutionality of federal laws, and have not simply deferred to the courts or to Congress. Each branch of government has an independent responsibility to assess the constitutionality of current and proposed laws. This is not incompatible with the duty of the president or Congress to obey judicial decisions that strike down a statute, since the Constitution gives the courts jurisdiction over all cases arising under it. But if the courts haven’t yet ruled on the issue, nothing prevents the president or Congress from making a considered independent judgment that the statute is nonetheless unconstitutional and acting accordingly.
Thus, if the president genuinely believes that DOMA or any other federal statute is unconstitutional, he has at least a prima facie duty not to defend it in court, and possibly a duty not to take actions to enforce it either, as part of his exercise of prosecutorial discretion (a traditional executive power). Obviously, the president can still choose to defer to Congress or the courts in ambiguous cases where he is not sure whether a statute is constitutional or not. It would have been perfectly legitimate for the Obama Administration to conclude that they are not sure whether DOMA is constitutional, and therefore will defer to the considered judgment of Congress until such time as the Supreme Court definitively decides the issue. But the President apparently has a considered view that the statute really is unconstitutional, and not merely uncertain in its status. If so, his duty to the Constitution requires him take the action that he did.
II. Practical Considerations.
Many of the critics of Obama’s decision cite the danger that allowing presidents to refuse to defend statutes they consider unconstitutional would allow them to negate any laws the administration happens to disagree with, simply by not arguing for them in court. This is a reasonable concern. But I think it is overblown.
The fact that the administration chooses not to defend a federal law doesn’t mean that it won’t have other able defenders. In practice, virtually any significant federal law is likely to be supported by states and/or private parties who have standing to intervene. For example, any of the 45 states that today forbid gay marriage would probably have standing to defend its constitutionality on the grounds that otherwise they might have to extend tax credits and other government benefits to resident couples who have entered into same-sex marriages in other states. If a future Republican administration chooses not to defend the constitutionality of the individual mandate, both state governments who support it and various private parties who benefit from it materially would have standing to intervene. For example, insurance companies support the mandate because it requires people to buy their products and that financial stake in the law is surely sufficient to give them standing.
Indeed, supporters of a challenged law should prefer that its defense be handled by a party that is genuinely committed to it, rather than a hostile Justice Department that is only litigating the case because they believe they can’t get out of it. Ed Whelan, a prominent critic of the Obama Administration’s handling of the DOMA litigation, claims that the “administration has been sabotaging DOMA litigation from the outset” by refusing to make the best possible arguments in the law’s defense. If so, wouldn’t DOMA supporters be better off if the statute’s defense were handled by parties who actually believe in their case and genuinely want to win it?
Past experience supports the conjecture that a president’s unwillingness to defend a federal statute doesn’t necessarily doom it to defeat. This is not the first time that a president refused to defend the constitutionality of a federal law or regulation. In 1989, as Jim Copland points out, the George H.W. Bush administration refused to defend the constitutionality of federal affirmative preferences in the Metro Broadcasting case. In the 1982 Bob Jones case, the Reagan administration refused to defend an IRS policy denying tax exemptions to a university that practiced racial segregation for religious reasons. Significantly, both policies were ultimately upheld by the Supreme Court, as other extremely able lawyers were found to defend them. For example, the Bob Jones case was won by prominent Washington, DC lawyer William Coleman.
In recent years, federal courts have gradually relaxed standing rules, making it easier for a variety of parties – especially state governments – to bring lawsuits or intervene in existing ones. Thus, it is highly unlikely that a president’s refusal to defend a statute in court will mean that it won’t find able defenders elsewhere. If there is still a problem, the proper solution is to further loosen restrictive standing requirements, which should be eliminated anyway for reasons I explained here.
UPDATE: I should add that it might also be legitimate for the president to adopt a general policy of deferring to congressional judgment on issues relating to the constitutionality of federal statutes, if he believes that Congress’ judgment on these matters is likely to be systematically superior to that of the executive branch. But I think any such presumption is at best dubious in an era when Congress generally enacts whatever statutes it wants with little or no serious consideration of constitutional constraints on its power.
UPDATE #2: I have changed around some of the wording in this post for the sake of clarity.
UPDATE #3: It may be that it will be harder for states to get standing to defend DOMA than I suggest above, because the President is only declining to defend the constitutionality of Section 3 (forbidding federal government recognition of same sex marriages contracted in the states), while continuing to argue the provisions in DOMA that allow states to refuse to recognize same-sex marriages contracted elsewhere. Nonetheless, I think states can get standing. Some state tax benefits depend on federal law recognition of marriage, as also does some federal funding of state government programs. Given that even a small fiscal effect is enough to get standing under current precedent, the states will likely be able to find something – as might various private parties opposed to same-sex marriage.
In this post commenting on the revelation that former Republican National Committee chairman Ken Mehlman is gay, Yale lawprof Jack Balkin argues that the recent spate of state anti-gay marriage constitutional amendments may significantly retard progress towards gay equality:
[Ken] Mehlman was the chair of the Bush 2004 presidential campaign, which deliberately used opposition to same-sex marriage–and indeed, moral opposition to homosexuality–as a way of increasing turnout among members of the Republican base. One way of doing this was to work with anti-SSM groups to schedule votes on state constitutional amendments that would prohibit the recognition of same sex marriage. As a result of this strategy, thirteen states passed such amendments during the 2004 election cycle, followed by a dozen or so more in the next four years.
These amendments matter because they complicate the most obvious path toward marriage equality: proceed state by state and get a majority (or more) of states to recognize same-sex marriage. After that occurs, it is much easier for the federal courts and the Supreme Court to consider a challenge to laws banning same sex marriage.
A few states with such constitutional amendments would not be a very serious obstacle……
The problem is that as a result of the 2004 Bush campaign, a much greater number of states have constitutional amendments that block both ordinary legislation and judicial interpretation of state constitutions. At last count, 29 states had constitutional bans on same sex marriage.
I criticized arguments similar to Balkin’s here, here, and here. To briefly summarize my main points, I doubt that these amendments will have more than a minor effect for two reasons. First, most of them are in states that are unlikely to enact gay marriage anytime soon. Even more importantly, most are in states with easy to amend constitutions. The vast majority of the amendments in question were enacted by a majority vote referendum, similar to that which led to the passage of California’s Proposition 8. When and if public opinion in those states shifts decisively in favor of gay marriage, advocates can easily reverse those amendments by sponsoring a referendum initiative of their own. To be sure, such an effort requires funding and organization. But gay marriage advocates are reasonably strong in both areas. For these reasons, the anti-gay marriage amendments will ultimately cause no more than brief delays in the enactment of gay marriage once majority opinion comes to support it.
On a less important note, I think Balkin also overstates the importance of Mehlman’s and Bush’s role in the passage of these amendments. Given the massive outcry that the Massachusetts Supreme Judicial Court’s 2003 pro-gay marriage decision caused among social conservatives, it is likely that conservative groups would have tried to put as many amendments on state ballots as they could, even absent Mehlman’s efforts.
Balkin also criticizes Mehlman for “us[ing] moral opposition to homosexuality as a lever to get out the vote” in 2004, despite the fact that he was a supporter of gay marriage himself. Although one can theoretically be opposed to gay marriage without also opposing homosexuality as such, it is very likely true that most of those who oppose the former do so in large part because of their opposition to the latter. That said, I’m not sure that Mehlman is as blameworthy as Balkin suggests. In politics, it is not unusual to support one candidate over another despite the fact that the preferred candidate has objectionable views on some issues. Perhaps Mehlman believed that Bush’s superiority over John Kerry on other issues was great enough to justify doing all he could to elect the former despite the likely negative impact on gay marriage. Maybe he also believed (as I do) that these amendments would not have much longterm effect. Like most political operatives, Mehlman is no saint. But he may not be as big a sinner as Balkin suggests.
Traditionally, conservative scholars and judges have advocated narrow views of constitutional “standing”: the level of “interest” litigants must have at stake in the outcome of a case in order to give them a legal right to sue. For their part, liberals have usually promoted the opposite view: constitutional rights should not be denied based on these sorts of technicalities. Modern standing doctrine requires that litigants must prove that they have 1) suffered some sort of past or imminent material injury, 2) the injury was caused by the law, and 3) it can be redressed by a judicial decision. Generally speaking, Liberals have argued for a broad interpretation of all three requirements, while conservatives tended to assert that all three should be interpreted narrowly.
This ideological division has been turned on its head in the current gay marriage and health care litigation. In the former, liberal litigants and interest groups have argued that the proponents of California’s anti-gay marriage Proposition 8 lack standing to appeal the district court ruling striking it down. For their part, conservatives have claimed that they do have “standing,” applying a broad definition of what counts as “material injury.” In the health care case, district judge Henry Hudson (a George W. Bush appointee) has ruled that the state of Virginia has standing to challenge the Obama bill’s “individual mandate” even though the mandate actually applies only to individuals and not state government. The liberal Obama administration and many liberal commentators such as Jack Balkin decried this ruling and argued that Virginia doesn’t have standing. This, despite the fact that Virginia’s standing could be defended under the broad interpretation of state government standing approved by the Supreme Court in Massachusetts v. EPA, the global warming case (much to the delight of most liberals).
Does this mean that liberals and conservatives are about to switch sides on standing? Possibly. But it is more likely that views on standing will no longer closely track ideological divisions. Nothing about conservative ideology as such necessarily requires narrow standing rules, and nothing about liberal ideology necessarily requires broad ones. The ideological split over the issue dates back to the 1970s and 80s, when broad theories of standing mostly favored liberal litigants (especially environmentalists) challenging policies adopted by Republican-controlled administrative agencies. At that time, many believed that Republicans had a lock on the presidency, and that conservatives had little to gain and much to lose from strategic constitutional litigation.
Neither assumption is valid today. Democrats are once again competitive in presidential politics. And the rise of conservative and libertarian public interest law groups combined with a more conservative Supreme Court, ensure that the right can play offense as well as defense in constitutional litigation. For these reasons, narrow standing rules no longer consistently tilt the playing field in favor of conservatives. But neither do they uniformly advance liberal interests. Over time, therefore, neither group is likely to advance a consistent position on the issue. Standing arguments will increasingly become a tactical gambit used whenever convenient, rather than a matter of principle.
None of this says much about the normative question of whether broad or narrow standing rules are best. At least some people care about this issue for reasons that go beyond seeking tactical advantage in specific cases. Co-blogger Jonathan Adler, for example, is a principled advocate of narrow standing rules. I generally hold the opposite view, and will briefly outline my reasons in a follow-up post.
Rick Hasen of Election Law Blog reads the tea leaves of the Ninth Circuit’s granting of a stay in Perry v. Schwarzenegger at the ACSBlog. His bottom line: The grant of the stay request by the motions panel tells us very little about the Ninth Circuit’s likely resolution of the merits.
for those who want to predict what will happen in the appellate courts, there’s really very little to go on so far. Certainly we should not rely on a procedural order containing no written rationale offered by a different set of decisionmakers than the judges who will decide the merits of the appeal.
He also suggests that the stay, by slowing down the pace of the case, may ultimately help opponents of Prop. 8.
It is entirely possible for a few years to elapse before the case could get to the Supreme Court. By then, public opinion could shift more firmly toward gay marriage, and it is possible that such an emerging social consensus could influence Justice Kennedy toward striking down Proposition 8.
Eugene noted Prof. Hasen’s pre-order thoughts on the stay request here.
Today the motions panel of the U.S. Court of Appeals for the Ninth Circuit followed up on its order expediting the appeal in Perry v. Schwarzenegger with an order expediting the appeal filed by officials of Imperial County, California. Imperial County officials, including the Deputy County Clerk, has sought to intervene in defense of Proposition 8 in Perry, but Judge Walker denied their motion. They have appealed both his denial of their effort to intervene as well as the case itself. Under today’s order, the two cases will be calendared together. Hat tip to Lyle Denniston who has more here.
While we’ve been focusing on whether proponent-intervenors have standing under Article III to defend a citizen initiative, gay marriage is taking hold in Mexico. Over the past few weeks, that country’s supreme court has decided three important cases on the issue. On March 4, Mexico City’s council voted to recognize SSM. In the first of its decisions, the supreme court agreed that Mexico City had the power to recognize SSMs under that country’s federalist system. Second, it held that such marriages are valid throughout the country. Today, it held that Mexico City had the power to include adoptions by same-sex couples in its marriage law.
This isn’t the same thing as saying that Mexico now fully recognizes gay marriages in the way that, say, Canada does. But it appears that we’re pretty close, since Mexico City undoubtedly has the country’s greatest concentration of gay couples and it seems relatively easy for couples from other parts of the country to obtain a marriage license there. I’d welcome any insights on the latter point, especially, by those who actually know something about marriage law there.
There are quite a few interesting posts on the standing issues in Perry v. Schwarzenegger, including pieces by the following:
- Lyle Denniston (SCOTUSBlog)
- Vikram Amar (Writ)
- Howard Wasserman (Prawfsblawg)
- Michael Dorf (Dorf on Law)
- Emily Bazelon (Slate)
Having thought about the question a little bit more, I think that the defenders of Proposition 8 do have standing to appeal the decision, just as they had standing to intervene, and that even if they do not, the officials of Imperial County would, and should have been permitted to intervene. Although I generally support a rather narrow view of standing, I largely agree with Michael Dorf that it would be anomalous were state officials able to effectively nullify state ballot initiatives simply by refusing to defend such initiatives in Court. Further, I think the interest of the proposition’s defenders on appeal is equivalent to that of an initiative’s sponsors who could file suit to ensure their initiative appears on the ballot in the first place.
Assuming the U.S. Court of Appeals for the Ninth Circuit disagrees, what are the consequences? As I suggested in my prior post, I think that if Prop. 8′s proponents lack standing to appeal, then they lacked the standing to intervene [as primary defendants], and the trial proceedings were held in error. The district court still had jurisdiction over the case, but the trial was invalid. The proper remedy, I believe, would be to vacate Judge Walker’s decision and remand for additional proceedings. Barring the successful intervention by a party with standing (or a change of heart by the state), this would produce an almost identical outcome. If the state defendants did not consent to an adverse judgment, Judge Walker would enter a default judgment on behalf of the plaintiffs or grant a motion for summary judgment. The end result would be the same, but Judge Walker’s order and opinion would be different. Among other things, it would not be able to rely upon factual findings based upon the testimony and cross-examination he heard at trial. So the only real effect would be a several month delay and a new opinion, right? Maybe not.
Californians go to the ballot box in November and will elect a new Attorney General. Consider what would happen if, come November or January, the state now has an AG who wants to defend Proposition 8. Depending on how things proceed — and how quickly — a new AG might have the opportunity to enter the fray.
As Howard Wasserman notes, this would be a really good semester to be teaching federal courts.
On Thursday, Judge Vaughn Walker denied gay marraige opponents’ motion for a stay of his ruling in Perry v. Schwarzenegger declaring Proposition 8 to be unconstitutional. One of the reasons offered by Judge Walker was that he doubts whether Prop. 8′s defenders have standing to appeal his ruling. Although Judge Walker allowed them to intervene in the case to defend the ballot proposition’s constitutionality when California Attorney General Jerry Brown refused, he does not think they have the requisite interest in the case to satisfy the requirements of Article III standing. This raises some interesing issues, which I discuss below the fold.
By now I’ve read dozens of blog posts and commentaries attesting to the power and persuasiveness of Judge Walker’s opinion striking down California’s Proposition 8 barring gay marriage. But as far as I can tell, everyone I’ve seen take this position was predisposed to accept Judge Walker’s conclusion. Lots of supporters of gay marriage and academics who believe it is a constitutional right celebrate the force of Judge Walker’s reasoning. But what I have yet to see is someone who opposed the legal arguments, or at least approached them as a skeptic, announcing that Judge Walker’s opinion has changed, or at least shaken, their views on the matter. In other words, the commentary on Judge Walker’s opinion is a perfect example of confirmation bias.
I support gay marriage. Marriage, in my view, is first and foremost a private institution and insofar as the state has anything to say in who gets married, I don’t think it should distinguish between gay and straight couples. If two men or two women want to solemnize their love for one another, the government should not stand in their way. I’ve also been convinced by Dale Carpenter’s arguments that recognizing gay marriage is the prudent — and dare I say “conservative” — thing to do. But I am not convinced that gay marriage is required by the 14th Amendment, and Judge Walker’s opinion has not changed my view. He makes many sweeping pronouncements and factual findings with which I agree, but I don’t think his opinion rests on particularly solid legal ground, let alone a proper interpretation of the constitution’s text. It may well be perfect pitch to Justice Kennedy, but predicting the inclinations of one idiosyncratic justice is not a particularly good measure of a legal argument’s intrinsic force. So while some fiind Judge Walker’s opinion powerful and convincing, I remain unconvinced.
Jack Balkin has an interesting post on today’s two Defense of Marriage Act cases from the federal District of Massachusetts, Gill v. Office of Personnel Management, and Massachusetts v. HHS. The latter case found DOMA unconstitutional, as applied to Massachusetts, because DOMA violates the Tenth Amendment by infringing the state’s traditional core sovereign power of defining lawful marriages. The most important parts of the Tenth Amendment analysis are at pages 28-36 of the opinion. Balkin is concerned because the Judge Tauro’s ”Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.” In particular:
The modern state depends heavily on the federal government’s taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA’s direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable– and unconstitutional– to the extent they interfere with state policies regarding family formation as well. Put differently, Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel.
Well, as my former boss, Colorado Attorney General Duane Woodard once put it, “There’s no liberal constitution or conservative constitution. It’s just the Constitution.” The Tenth Amendment is one of the roads that all conscientious American judges must travel, regardless of whether they personally like all of the places its leads.
Balkin makes one error in his criticism of Judge Tauro’s Tenth Amendment analysis of congressional interference with traditional state government functions:
(In one of the wildest parts of the Massachusetts v. HHS opinion, Judge Tauro resurrects Chief Justice Rehnquist’s “traditional governmental functions” approach from National League of Cities v. Usery, which was specifically overturned in 1985 in Garcia v. San Antonio Metropolitan Transportation Company on the grounds that it was completely unworkable. The existence of Supreme Court authority, however, does not stop Judge Tauro; he simply notes that some First Circuit precedents predating Garcia are still on the books, and who knows, maybe the Supreme Court will change its mind!)
That’s not precisely accurate. Judge Tauro structured his opinion around the 1997 First Circuit case U.S. v. Bongiorno, which post-dates (not pre-dates) Garcia. According to Bongiorno:
a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions.
The Bongiorno test comes directly from the 1981 Supreme Court case Hodel v. Virginia Surface Mining & Reclam. Ass’n, which is still good law. Judge Tauro plausibly found that DOMA had each of the three Bongiorno ingredients. Balkin is right to point out that the new federal health control law could be found unconstitutional by any court which applies the Tenth Amendment as seriously as did Judge Tauro.
That’s the decision this afternoon, based on equal protection principles applied to the federal government through the Fifth Amendment’s Due Process Clause. Section 3 of the Defense of Marriage Act of 1996 established a federal definition of marriage for the first time. This meant that the federal government could refuse to grant validly married same-sex couples the federal benefits and privileges accorded opposite-sex married couples. I’m still looking at the decision and will probably post soon.
UPDATE: In a companion case, the same judge has ruled that DOMA intrudes on the Tenth Amendment powers of the states. Very interesting.
Perhaps partly in response to my VC post yesterday, the Family Research Council has corrected its prior claim that the conservative pro-gay group GOProud supported national handgun carry reciprocity as a means of advancing interstate recognition of gay marriages. As the FRC now correctly explains, the marriage argument was offered by Missouri Democratic Senator Claire McCaskill, in explaining her vote against the handgun reciprocity proposal.
The FRC also states that it supports the Second Amendment, and points out that it joined an amicus brief in McDonald v. Chicago.
A new piece from the Family Research Council blasts Grover Norquist (President of Americans for Tax Reform; Member of the Board of Directors of the National Rifle Association) for joining the board of GOProud, an organization of conservative gay Republicans. Among the alleged sins on the GOProud agenda :
Equalize “concealed carry reciprocity” amendment with gay rights via state rights. Support guns being carried and recognized across state lines, in order to further the agenda that gay marriages legal in only a few states be recognized legally in all. (July 2009)
To FRC’s credit, they link to the endorsement article written by GOProud chairman Christopher Barron. The article says nothing about using national handgun carry license reciprocity as a tool to force states to recognize gay marriage licenses issued in other states. To the contrary, Barron’s article makes the obvious point that national handgun carry will helps gays protect themselves from violent crimes, including gay-bashing.
The FRC article would have been better if it had not made an unsupported claim about Barron’s supposed motive. Rather, the FRC could have more plausibly made the slippery slope argument that, regardless of supporters’ intent, national carry reciprocity might set a precedent for mandatory federal recognition of marriage licenses. I don’t see a strong slippery slope possibility here, but the FRC is free to have its own risk assessment.
And obviously the FRC is free to organize is policy preferences any way it wants. Personally, though, I think that federal legislation which directly protects the Second Amendment rights of all Americans is far more important than whatever tiny effect the bill might have on gay marriage. (HT: Snowflakes.)
The vote in the parliament was 49-0. The bill must be approved by the president. Of interest: the legislature simultaneously ended domestic partnerships, which had been available only to same-sex couples as a substitute for marriage.
This evening, Chief Justice John Roberts, acting as the circuit justice for the District of Columbia, denied an application for a stay to prevent a law allowing same-sex marriage to take effect before there is a public referendum. Roberts’ opinion is here. More from Jan Crawford and SCOTUSBlog.
While the Supreme Court’s per curiam opinion today deals with legal matters apart from SSM, it is a potentially ominous development for the pro-SSM litigants. The majority here — split along familiar ideological lines, with Justice Kennedy joining (and Orin suggests, writing for) the majority — paints a picture of a district judge and to some extent an appellate court acting hastily and lawlessly to make special rules to favor one side in a single case.
That may or may not be what the district court did, but that’s what five Justices have concluded. As an advocate, you’d rather not have the ultimate reviewing court call into question your judge’s objectivity on the third day of trial.
The Court also takes seriously the claims of irreparable harm to anti-SSM witnesses based on criticisms and retaliatory action some claim to have faced after Prop 8 passed. As an advocate, you’d rather not have the ultimate reviewing court see the opposition as David needing protection from your Goliath.
All in all, it’s a bad start for the judicial challenge to Prop 8.
Like co-bloggers Dale Carpenter and Jonathan Adler, I highly doubt that Ted Olson and David Boies will succeed in their case urging the Supreme Court to declare a federal constitutional right to gay marriage. At the same time, I differ with them somewhat in believing that gay marriage litigation has been a huge net plus for the gay rights cause. I outlined my reasons in this series of posts. The first post in that group explains why pro-gay marriage litigation has been a major gain despite the political backlash against it. The political effectiveness of these lawsuits of course says little about their legal merits. For what it’s worth, I think that the pro-gay marriage position has greater force under some state constitutions than others, especially those that have Equal Rights amendments; but I’m not going to try defend that view in any detail in this post.
On the eve of a federal Prop 8 trial in a San Francisco district court, Ted Olson is channeling Andrew Sullivan and Jon Rauch. I agree with almost all of the essay, which is nicely and powerfully argued, except the idea that it isn’t “too soon” to pursue this in federal court. An ultimate loss in the Ninth Circuit or the Supreme Court is both likely and would be deflating. But arguing now against this litigation is like arguing against the tide coming in.
UPDATE: Sorry I didn’t see Jonathan’s post about this below. I’ll close comments to allow commentary on that thread.
Ted Olson explains why he supports gay marriage and has joined with David Boies to file suit to support it.
Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one’s own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.
I agree with Olson on policy grounds — as I agree with my co-blogger Dale Carpenter’s “conservative” arguments for gay marriage — but I remain deeply skeptical of the constitutional argument. I am unconvinced the equal protection clause requires states to recognize same-sex marriages, though I believe the federal government should recognize any marriage recognized under state law. I also think gay marriage will achieve wider acceptance if it is advanced through democratic processes rather than through the courts. Litigation strategies are appealing, but they also risk a substantial backlash.
Ed Whelan reports that counsel for the sponsors of California’s Proposition 8 — the ballot proposition that overturned gay marriage in the state — have filed an application for a stay of district court Judge Vaughn Walker’s order to have video of the the trial challenging Prop 8 posted on YouTube. While I have some ambivalence about whether it makes sense to televise judicial proceedings of this sort — and think some of the objections to televising this trial are overwrought — Ed Whelan’s makes a fairly persuasive case that Judge Walker bent the rules to achieve a predetermined outcome, and that his order is of questionable legality. (If there’s a substantive reponse to Whelan’s account, I’d be happy to post a link.)
UPDATE: More from SCOTUSBlog here.
