Author Archive | Dale Carpenter

VA Must Extend Benefits to Married Same-Sex Couples, District Court Says

In the aftermath of United States v. Windsor, the Obama administration is adopting a generous position on the availability of federal benefits to married same-sex couples, as co-blogger Will Baude pointed out yesterday in a post on the IRS ruling regarding their federal tax status.  So far, in contrast to their almost open resistance to Lawrence v. Texas, lower federal courts are also reading the decision expansively.  Today, a district court in California granted summary judgment to a married lesbian veteran who was denied added disability benefits that would have been available if she had been married to a man, even though the denial did not rest on DOMA.  The brief opinion is here

The Department of Veterans Affairs had taken the position that Windsor struck down only DOMA, not the specific provision of federal law under which veterans’ benefits are determined and that independently defined a “spouse” as “a person of the opposite sex.”  38 U.S.C. Section 101 (c) .  The law stood, said the VA, until Congress changed it or a court struck it down as unconstitutional.  (The Bi-Partisan Legal Advisory Group withdrew its defense of litigation like this after Windsor.)

The district judge determined that, in light of Windsor, Title 38’s limitation of benefits to opposite-sex spouses was not rationally related to the federal government’s interests in promoting gender equality, expanding veterans’ benefits, ensuring that servicemembers reach their maximum potential, promoting unit readiness and cohesion, or enhancing recruiting and retention. 

Quite aside from its significance on the issue of same-sex marriage, one consequence of Windsor could be that federal courts are gradually accepting heightened scrutiny when it comes to discrimination against homosexuals.  A second possibility is that, apart from increased skepticism of anti-gay discrimination, Windsor will lead to a further erosion [...]

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Ninth Circuit Upholds “Gay Conversion” Ban

A unanimous panel of the Ninth Circuit has upheld California’s ban on efforts by licensed mental health professionals to change the sexual orientation of minors, a practice often called gay conversion therapy because it’s sought by parents anxious to make their gay kids straight.  The opinion in Pickup v. Brown was written by Judge Susan Graber and joined by Judge Morgan Christen and Judge Alex Kozinski.  The court rejected a range of constitutional arguments grounded in professionals’ and patients’ speech rights, the freedom of association, and parents’ fundamental right to determine the upbringing of their children.  From the summary prepared by court personnel:

The panel held that Senate Bill 1172 regulates professional conduct, not speech and therefore was subject only to a rational basis review. The panel held that under its police power, California has authority to prohibit licensed mental health providers from administering therapies that the legislature has deemed harmful, and the fact that speech may be used to carry out those therapies does not turn the prohibitions of conduct into prohibitions of speech. The panel further concluded that the First Amendment does not prevent a state from regulating treatment even when that treatment is performed through speech alone. The panel concluded that the record demonstrated that the legislature acted rationally when it decided to protect the well-being of minors by prohibiting mental health providers from using “sexual orientation change efforts” on persons under 18.

California was the first state to ban the practice, which is condemned as unnecessary, ineffective, and potentially harmful by all major mental health professional associations.  New Jersey followed with similar legislation this year.  The bans do not apply to professional conversion therapy sought by adults, do not ban parents or religious authorities from trying to change sexual orientation in minors, and do not prevent [...]

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New Mexico Photographer Loses Discrimination Case

In Elane Photography v. Willock, the New Mexico state supreme court has decided to reject a professional photographer’s statutory and constitutional claims that she could not be required to photograph a lesbian couple’s commitment ceremony.  Filed under a state law barring discrimination based on sexual orientation in “public accommodations” (which nowadays is often defined to include small businesses that offer services to the public), the case has been kicking around in the state’s court system since 2006.  The next stop for the photographer would be the United States Supreme Court since there are First Amendment free speech and free exercise claims.

The decision comes down to three basic conclusions:

(1) The state’s antidiscrimination law applies.  Discrimination against a same-sex couple (married or not) is discrimination based on “sexual orientation” and is prohited in public accomodations under the statute.  That’s because the conduct of having, for example, a same-sex commitment ceremony (regardless of whether it’s a legal marriage or just a private celebration) is closely tied to homosexuality.  This conclusion seems right as a matter of logic and precedent.  Rejecting just such an attempt to distinguish conduct and status in Christian Legal Society v. Martinez, the Supreme Court held:

Our decisions have declined to distinguish between status and conduct in this context. See Lawrence v. Texas, 539 U.S. 558, 575, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.” (emphasis added)); id., at 583, 123 S.Ct. 2472 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances,

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Marriage in Minnesota

Today, along with thousands of others who made it possible, I’ll be at Governor Dayton’s signing of the bill extending marriage to same-sex couples in Minnesota starting August 1.  Obviously, this is the culmination of years of effort, but especially the hard work we’ve done since a constitutional amendment was first placed on the election ballot in the state two years ago.  It’s one of the most remarkable turnarounds in recent political history.  By passing that amendment, the legislature unintentionally created a movement that really had not coalesced here. 

As they have in every other state, opponents tried to claim that the law would endanger religious freedom.  But these arguments were rebutted, as they have been elsewhere, by the singular observation that marriage laws as such do not create the legal conflicts opponents say they fear. 

This is a moment to celebrate for those of us who believe that gay families can and should be protected through marriage, and do not see any evidence or reason to believe opposite-sex marriages will be hurt in the process.  Nobody’s freedoms have been taken away.  But some of my friends, including a couple who’ve been together for 26 years, will finally be able to marry. 

We can’t be under any illusions that the path ahead will be easy or quick (barring a monumental Supreme Court decision).  After a few more states, we will start to run up against constitutional amendments that were passed in a marriage panic a few years ago.  Undoing them will not be as simple as citing polling data,  even the data that show young people overwhelmingly favor same-sex marriage.  The thing about generational change is that it takes a generation to run its course. 

But in one more state, in the heart of the country, and by legislative [...]

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Minnesota House to Vote on Marriage Today

At Noon (central time) today, the Minnesota House of Representatives will begin debating a bill that would extend marriage to same-sex couples.  The bill, as I explain in today’s St. Paul Pioneer Press, is among the most protective of religious freedom in the country.

You can watch the debate on the website of the Minnesota house by clicking here.

The vote will be close.  If the bill passes the state house, it is expected to head to a vote in the state senate on Monday.  Governor Mark Dayton would sign it, making Minnesota the 12th state to recognize same-sex marriage and the first in the Midwest to do so by legislative action.

UPDATE: The marriage bill passed the state house, 75-59.  Of the Democrats, 71 (out of 73) supported it.  Four (out of 61) Republicans supported it. [...]

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Same-Sex Marriage in Delaware

The state senate in Delaware is having a final debate on a same-sex marriage bill. The audio is available here, just click on “Senate in session.” 

The Minnesota state house of representatives will vote on a marriage bill on Thursday.

UPDATE: The Delaware Senate just passed the bill, 12-9.  The state house has already passed the bill.  The governor will sign it, making Delaware the 11th state to legalize marriage for same-sex couples. [...]

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Speaking Engagements This Week

On Monday I’ll be speaking before the ACS chapter at Yale Law School on the topic, “What Has Lawrence Meant? Litigation and LGBT Rights on the Tenth Anniversary of Lawrence v. Texas.”  The presentation will be in Rm. 129 from 1-2 p.m.

On Tuesday I’ll be speaking at Minnesota State University-Mankato on “The Role of the First Amendment at a Public University,” a talk occasioned by a recent controversy at the school over the presence of a Chick-Fil-A on campus.  I’ll be giving the talk twice. once from 3:30-4:30 p.m. and a second time from 7:30 to 9:00 p.m.  Both will be in Morris Hall, Rm. 101. [...]

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The Real Standing Problem in the Marriage Cases

Some commentators mistakenly think a federalism-based approach to the DOMA case will cause a flood of litigation and generate massive legal uncertainty, but that’s not the real chaotic threat at the Court.  Orin notes the practice of paying people to stand in line for you to get into the Supreme Court for oral argument in important and highly publicized cases.  I can speak to this phenomenon first-hand. I attended the oral argument in the marriage cases on both days and witnessed it up close, along with even more questionable queueing practices.  Forget about federal court jurisdiction.  What’s happening in the lines outside the Court in these big cases is a scandalous display of bad manners.  It was the real standing problem in the marriage cases.

There are actually two lines to get into the chamber, which has very limited seating capacity.  One is for the general public, and in high-profile cases it’s quite long.  The other is for lawyers who become members of the Supreme Court bar.  Bar members enjoy a limited number of reserved seats at the front of the audience, right behind the lawyers for the parties in the case.  The public sits in the back, although given the small size of the courtroom their seats are very good — if they show up early enough to snatch a place. 

I joined the Supreme Court bar ($200 one-time fee) in order to get into the marriage arguments. I knew the lines would be long, so I arrived Tuesday morning at about 3:15 a.m., thinking that would be good enough to get me in.  I was about 57th in line at that point for about 100 seats in the bar section.  In front of me were mostly paid line-standers who had been waiting in the 30-degree temperatures all [...]

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Three Senses in Which DOMA Implicates Federalism

Overnight, it seems, federalism has become a major ground on which the Defense of Marriage Act is being contested.  This is surprising because, as we saw Wednesday in the arguments of Roberta Kaplan and the Solicitor General, there were no real advocates for federalism as an issue during the oral argument in United States v. WindsorNo advocates, that is, except for five of the nine people sitting behind the bench.

But what exactly is the federalism objection to DOMA?  Despite some misapprehension to the contrary, it doesn’t rest principally on Tenth Amendment case law establishing an “anti-commandeering” principle.  And it’s not that marriage is a subject over which the federal government must always, forever, and for every purpose be obedient to individual states’ whims. That would present what we might call a reverse anti-commandeering problem.

Instead, the federalism concern with DOMA breaks down into at least three different but related types of problems.

(1) The federal-power problem. DOMA is an exercise of federal power. So the first question is, where does the federal government get the power to enact a comprehensive definition of marriage? George Will thinks DOMA is a “usurpation of state power.”  James Taranto at the Wall Street Journal agrees.  Michael McConnell, perhaps the leading conservative judicial scholar of his generation, put it this way in an op-ed in the Wall Street Journal:

The leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage.

The federalism amicus brief in Windsor argues this point in [...]

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Federalism Concerns Dominate the Attack on “Skim Milk” Marriage

At the Supreme Court today, the Defense of Marriage Act took a beating from Justices concerned about federalism.  By my count, five Justices expressed deep constitutional concerns with DOMA, and four of these (Kennedy, Ginsburg, Sotomayor, and Breyer) expressly cited its intrusion into the traditional state domain of marriage law as a reason.  Another, Justice Kagan, used the novelty of DOMA’s intrusion into state authority as a reason to be especially suspicious of its validity under the Equal Protection Clause.  In other words, federalism and equal protection worked in tandem, with one bolstering the other.

The strongest federalism concerns came directly from Justice Kennedy, the perceived swing voter in the marriage cases, who repeatedly argued that DOMA amounted to federal regulation of marriage.  But even a couple of the more liberal Justices seemed to prefer a federalism ruling since it would have no immediate impact on state marriage laws.  The argument offered the narrowest way out of a difficult constitutional thicket, while ensuring DOMA’s demise.

The other four Justices, echoing some of the arguments we’ve heard from VC co-blogger Nick and from Ed Whelan at National Review Online, were very skeptical.  They seemed to accept the argument that in adopting DOMA, the federal government was simply defining the limits of federal programs, as it might define what constitutes “skim milk” for purposes of refusing to include it in a subsidy for whole milk.  That argument has some superficial appeal, but is far too casual in its asssesment of the distinctive impact of DOMA on state authority.  It trivializes an especially sensitive and historic area of state concern. For a more detailed argument on these points, see the amicus brief filed by several of us here.

It’s hard to say based on oral argument alone how a case will [...]

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Not there yet

Here’s what I had hoped to be able to post after the oral argument in the Prop 8 case yesterday, but was unable to because I couldn’t get into the site.  Yesterday it seemed urgent; today not so much.  But here goes:

Ten years ago today, I attended the Supreme Court oral argument in Lawrence v. Texas. Then, the constitutional argument had been honed to make it clear to the Court that striking down the Texas Homosexual Conduct law would be following the nation, not leading it. Then, the path to eradicating sodomy laws had been trod for 40 years, as state after state abandoned the criminalization of sexual intimacy among same-sex couples. Then, the state had no defense of its law except that a majority preferred it that way. Then, the gay-rights advocate was masterful, both passionate and deeply analytical, stumbling only briefly over one tangential question. Back then, while there was no certainty about the outcome because the swing Justices (Kennedy and O’Connor) had given nothing away, there was a jubilant expectation among gay-rights advocates that the Court would strike down sodomy laws.

The contrast to today’s oral argument in Hollingsworth v. Perry, which I also attended, could hardly be more vivid. Today, several Justices seemed to think that a constitutional resolution would be leading the nation, not following it. And it would be doing so, asserted Justice Alito, to end a debate over something that was newer than cell phones and the Internet. Today, opponents of gay marriage could raise vague doubts about the uncertainty in the “sociological evidence” on the effects of same-sex marriage, a point that Justice Kennedy reiterated (so much for the trial in the district court, whose findings weren’t even mentioned today). Unlike ten years ago, they could claim that “caution” [...]

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Federalist Society Symposium on the Marriage Cases

Today the Federalist Society hosts a forum entitled, Same-Sex Marriage: A Variety of Perpectives on United States v. Windsor and Hollingsworth v. Perry.  There are contributions by John Eastman, Nelson Lund, Ilya Shapiro, and me.  My contribution, “Justice Scalie’s Constitutional Case for Gay Marriage,” originally appeared on SCOTUSblog last September. [...]

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