equal protection

Mike Boggs' Record Catches Up to Him

This post was originally published at the Huffington Post.

This is a good day for Americans who care about our federal courts. According to press reports, Judiciary Committee Chairman Patrick Leahy has said that Georgia federal district court nominee Mike Boggs lacks majority support on the committee and that he should withdraw. The New York Times calls the nomination "dead."

Federal judicial nominees routinely - and appropriately - assure senators that their personal feelings and political positions will play no role in their judicial decisions. But this particular nominee did exactly the opposite when running for election as a state judge in 2004. That's when then-Rep. Boggs told voters at a judicial candidates' forum, "I am proud of my record. You don't have to guess where I stand - I oppose same-sex marriages. I supported and authored the Child Protection Act to protect children from predators. I have a record that tells you exactly what I stand for."

This connection - that Boggs himself made - between how he would approach judging cases to his views as a legislator on the legal issues that would be before him as a judge, compelled the Senate Judiciary Committee to examine Boggs' legislative record.

And what a disturbing record that was: He sought to amend the state constitution to forever lock gays and lesbians out of the promise of equality and to prohibit the Georgia legislature from ever extending marriage rights to gays and lesbians. He supported anti-choice legislation and even voted for a bill amendment that would have put abortion providers' lives at risk. He voted in support of having the Confederate battle symbol incorporated into the state flag. He sought to use the power of government to promote religion, church-state separation notwithstanding.

Given his 2004 assurance that his legislative record showed how he would rule as a judge, senators could certainly presume that Boggs has a severely cramped view of constitutional Equal Protection, reproductive rights, and church-state separation. LGBT people, religious minorities, African Americans, and women could not be assured that their basic rights would be recognized and fully protected in his courtroom.

To make things worse, his efforts to explain away his record to the Judiciary Committee raised questions about his candor.

For instance, at his hearing, he assured both Senators Mazie Hirono and Chris Coons that statements he made in 2004 while expressing his opposition to marriage equality about "the dangers that we face with respect to activist judges" were views he held as a legislator, not as a judge. Yet he sounded quite different as recently as November 2011, having been a judge for nearly seven years. At that time, Boggs was promoting himself to a different audience, the Judicial Nominating Commission of Georgia, which was considering recommending to the governor his appointment as a state appeals court judge. When asked then how to improve the efficiency and effectiveness of the legal system, Boggs cited as the problem "judges who abrogated their constitutionally created authority" and "judicial decisions that have ignored and violated the basic tenets of the judiciary."

At his Senate confirmation hearings just a few years later, Sen. Coons asked Boggs to name three or four examples of cases that he'd had in mind when he expressed those concerns in 2011. Boggs admitted that as a legislator in 2004, he considered cases recognizing marriage equality as a state constitutional right as fitting this category, but didn't say what cases he'd had in mind in 2011. In her written follow-up questions, Sen. Dianne Feinstein asked Boggs if he could name any decisions that he believed abrogated the judiciary's constitutionally created authority (using his words). He responded that he could not recall any cases that he had been thinking of at the time.

Yeah, right. Based on what Boggs told the state Commission, he viewed this as extremely serious, going to the very legitimacy of the courts. Yet just a few years later, even after being given additional time to think about it, he could not recall even one case that he'd had in mind. One could be forgiven for believing instead that he actually had in mind the same cases he'd referred to in 2004, and that he was telling the commissioners - and ultimately, Georgia's governor - what he thought they wanted to hear.

His efforts to explain away his votes endangering abortion providers and supporting the Confederate battle symbol were equally not believable, and apparently they were not believed by a majority of committee members. Good for them.

Boggs' disturbing record showed he was unqualified for the federal bench. Today's news shows that a majority of the Judiciary Committee agrees.

PFAW

7th Circuit Says Arguments Against Marriage Equality "Cannot Be Taken Seriously"

Reagan judge Richard Posner concludes that the argument against marriage equality "is so full of holes that it cannot be taken seriously."
PFAW Foundation

Louisiana's Marriage Ban Is Upheld By Judge Citing "Lifestyle Choices"

A judge nominated by Ronald Reagan in 1983 writes an opinion that is a throwback to that earlier and less equal time.
PFAW Foundation

Tenth Circuit Protects Right to Marry

A federal appeals court rules that same-sex couples have a constitutional right to marry.
PFAW Foundation

Scalia Claims Courts "Invent New Minorities"

Scalia tells the Federalist Society that "it's not up to the courts to invent new minorities that get special protections."
PFAW Foundation

The Circuit Court's DOMA Decision and the 2012 Election

Mitt Romney has made clear that his judicial nominees would not protect Americans' rights like the Second Circuit did yesterday.
PFAW

The Commerce Clause and American Progress

In the Tea Party, it’s all the rage these days to declare everything unconstitutional – Social Security, Medicare, unemployment insurance, disaster relief, federal civil rights laws, health care reform, basically any law that enables the federal government to take on national-scale problems.

One of the main strategies that the Tea Party has been using to push this extreme and regressive view of the Constitution is pushing aside the Commerce Clause, the clause in the Constitution that gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

The Commerce Clause, long recognized by courts as the rationale for important progressive economic programs, has come under fire from opponents of health care reform, who are arguing in the courts – with mixed success -- that the clause does not allow the Affordable Care Act’s individual health insurance mandate.

In a new report, People For the American Way Foundation Senior Fellow Jamie Raskin argues that “a powerful case can be made “that the Commerce Clause is “the most important constitutional instrument for social progress in our history.”

Without it, Congress could not have passed the National Labor Relations Act, the Fair Labor Standards Act, the Clayton and Sherman Anti-Trust Acts, the Civil Rights Act of 1964’s prohibition of race discrimination in hotels, restaurants and other places of public accommodation, the Occupational Safety and Health Act, the Equal Pay Act, the Clean Air Act, the Clean Water Act and dozens of other federal statutes protecting the environment and establishing the rights of citizens in the workplace and the marketplace.


Why, then, does the Commerce Clause seem pale and dull next to the Free Speech and Equal Protection Clauses?
Perhaps it is because these provisions clearly declare radiant principles of liberty and equality that translate into easily understood and intuitively attractive protections against arbitrary government power.

Because the Commerce Clause has been a powerful instrument of social reform over the last century, its meaning has periodically provoked deep jurisprudential controversy. This is ironic since the Court routinely and unanimously upheld congressional assertion of a comprehensive federal commerce power before broad democratic purposes entered the picture. The commerce power became the target of virulent attack by corporate conservatives when progressives and labor gained political influence and used this power as the constitutional basis upon which to regulate and improve the character, terms and conditions of the American workplace and marketplace in favor of large numbers of the American people.


Raskin follows the Commerce Clause from its origins at the Constitutional Convention, through the Lochner era, when an activist court “put the Commerce Clause in a straightjacket” to strike down federal worker protection laws and other attempts to regulate interstate commerce, to the late 1930s, when the court returned to a more expansive view of the clause, allowing progressive economic programs and civil rights reforms to flourish, to the Rehnquist Court, which again began to narrow down the scope of Congress’s constitutional regulatory power, to challenges to the Affordable Care Act, which threaten to take us back to the Lochner era.
 

You can read the full report here.

PFAW

Taking it Back to 1987, Mitt Romney Teams Up with Judge Bork

Mitt Romney yesterday announced the members of his campaign’s legal advisory team, which will be led by none other than Robert Bork.

This is interesting because Judge Bork’s views of the law and Constitution were so extreme that his 1987 Supreme Court nomination was rejected by the Senate.

Here’s the TV spot People For the American Way aired about Bork at the time:

Among the reasons PFAW, the United States Senate, and the American people concluded that Bork was not suitable for a seat on the nation’s highest court:

  • Bork rejected the idea of a constitutional right to privacy – the basis for our freedom to use contraception, choose whether to have an abortion, and engage in private consensual sexual activity – putting him far to the right of most sitting Supreme Court justices.
  • He regularly interpreted the law to favor the powerful, to the particular detriment of women and people of color, including opposing the Civil Rights Act and claiming that the Equal Protection Clause does not apply to women.

As another Massachusetts political leader, Sen. Edward Kennedy famously put it:

Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.

America is a better and freer nation than Robert Bork thinks.

And in the years after his failed Supreme Court nomination, Bork kept on reminding us of why he would have been a disastrous Supreme Court Justice. From a 2002 PFAW report:

Robert Bork has carved out a niche for himself as an acerbic commentator on the Supreme Court, as well as various cultural issues. In fact, to Bork the two topics are closely related and the Supreme Court’s “illegitimacy” and its departure from the Constitution are in many ways responsible for our growing “cultural depravity.”

According to Bork, we are rapidly becoming a fragmented society that has totally lost its nerve and is now either unwilling or unable “to suppress public obscenity, punish crime, reform welfare, attach stigma to the bearing of illegitimate children, resist the demands of self-proclaimed victim groups for preferential treatment, or maintain standards of reason and scholarship.” Abortion, technology, affluence, hedonism, and modern liberalism are gradually ruining our culture and everywhere you look “the rot is spreading.”

Bork has denounced the public education system that “all too often teaches moral relativism and depravity.” He considers sensitivity training to be little more than “America’s version of Maoist re-education camps.” He has shared his fear that recognition of gay marriage would lead to accommodation of “man-boy associations, polygamists and so forth.” And he has criticized the feminist movement for “intimidat[ing] officials in ways that are destructive of family, hostile to masculinity, damaging to the military and disastrous for much education.”

It appears as if almost everything within contemporary culture possesses the capacity to offend Bork. He attacks movies for featuring “sex, violence and vile language.” He faults television for taking “a neutral attitude toward adultery, prostitution, and pornography” and for portraying homosexuals as “social victims.” As for the art world, most of what is produced is “meaningless, uninspired, untalented or perverse.” He frets that the “pornographic video industry is now doing billions of dollars worth of business” and the invention of the Internet will merely result in the further indulgence of “salacious and perverted tastes.” When it comes to music, “rock and rap are utterly impoverished … emotionally, aesthetically, and intellectually.”

More to the point, Bork is not content merely to criticize; he wants the government to do something about it. “Sooner or later,” he claims “censorship is going to have to be considered as popular culture continues plunging to ever more sickening lows.” So committed is he to this cause that he dedicated an entire chapter in his 1996 book Slouching Toward Gomorrah to making “The Case for Censorship.” In it, he advocates censoring “the most violent and sexually explicit material now on offer, starting with obscene prose and pictures available on the Internet, motion pictures that are mere rhapsodies to violence, and the more degenerate lyrics of rap music.”

When asked by Christianity Today about how he would decide what should and should not be censored, Bork announced: “I don’t make any fine distinctions; I’m just advocating censorship.” He went on to argue that the United States has a long history of censorship, and that such censorship “didn’t suppress any good art, it didn’t eliminate any ideas.” He goes on to state that, were individuals to decry such censorship as inhibiting their individual liberty or right to express themselves, he would reply “… yes, that is precisely what we are after.”

In choosing Bork to head his legal team, Mitt Romney is sending a clear message to the farthest right of the Right Wing... \and reminding us all that our 2012 vote for president is also a vote for the Supreme Court for the next generation.

PFAW

A Call to Action: Restore Equal Employment Opportunities in America

Saturday was the 70th anniversary of President Roosevelt’s issuance of Executive Order 8802, which prohibited racial discrimination by defense contractors. Last week, Congressman Bobby Scott hosted a press conference and briefing in honor of the anniversary of this event, which marked the first time a U.S. president had acted to combat discrimination by private employers who were using federal taxpayer money. Future presidents expanded on President Roosevelt’s action and added to its protections.

However, this was more than just a celebratory event of an important civil rights milestone: it was a call to action to correct an erosion of equal employment opportunity law that has been in effect since 2002. That’s when President Bush signed an Executive Order that made discrimination on the basis of religion by faith-based organizations using federal taxpayer money legal. In so doing, he reversed our nation’s continuous expansion of the promise of equal protection and opened a gaping hole in our nation’s civil rights protections. Religious entities had always been able to discriminate based on religion using their own money, but never to use taxpayer money to do so.

All the panelists were united in asking President Obama to fulfill his campaign promise of restoring the law. On the panel were: Congressman Bobby Scott (convener of the event); Congressman Jerrold Nadler; Professor Eric Arnesen (professor of history at George Washington University and biographer of civil rights and labor leader A. Philip Randolph, whose activism prompted FDR’s executive order); Rabbi David Saperstein (Director of the Religious Action Center of Reform Judaism, and also a board member of our affiliated People For the American Way Foundation); Barbara Arnwine (Executive Director of the Lawyers’ Committee for Civil Rights Under Law); Hilary Shelton (Director of the NAACP Washington Bureau); and Rev. Dr. Paul L. Brown, Sr. (Pastor of Miles Memorial CME Church and member of People For the American Way’s African American Ministers In Action).

Among other things, speakers discussed how employment discrimination harms the victims and society as a whole; warned that religion can easily be used as a proxy for race, sex, sexual orientation, and gender identity; condemned discrimination paid for by the tax dollars of its victims; asked why the religion of someone ladling out soup for the hungry should matter; and warned of the dangerous consequences to churches that want to retain federal funding they have become dependent on. As the last speaker, Rev. Dr. Brown opened a window into his daily work helping the hungry and the homeless, the “least and the lost,” and strongly condemned federally funded discrimination.

When he was running for President, then-Senator Obama promised to reverse President Bush’s policy, but he has yet to do so. What better time than the anniversary of the issuance of Executive Order 8802 for President Obama to put our nation back on the right road and restore through executive order the prohibition against federally funded discrimination? Yesterday, People For the American Way and African American Ministers In Action joined more than 50 other civil rights and religious organizations asking him to do just that.

PFAW

Empathy and The Loving Story

As a presidential candidate, Barack Obama let us know who he would be selecting as judicial nominees.

You know, Justice Roberts said he saw himself just as an umpire. But the issues that come before the court are not sport. They're life and death. And we need somebody who's got the heart to recogni-- the empathy to recognize what it's like to be a young, teenaged mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges.

This “empathy standard” became a red herring used to attack the President and qualified jurists like Sonia Sotomayor and Elena Kagan. Then Senator Ted Kaufman (DE) emphasized just how wrong that argument was.

Likewise, President Obama’s promotion of empathy is not, as his critics suggest, the advocacy of bias. “Empathy,” as a quick look at the dictionary will confirm, is not the same as “sympathy.” “Empathy” means understanding the experiences of another, not identification with or bias toward another. Let me repeat that. “Empathy” means understanding the experiences of another, not identification with or bias toward another. Words have meanings, and we should not make arguments that depend on misconstruing those meanings.

As we continue to hear empathy trotted out as something sinister, it’s important to consider where our country might’ve been without it. That’s the lesson of The Loving Story.

Virginia’s argument that its law did not discriminate on the basis of race because it restricted both whites and African Americans equally might have persuaded Justices who were blind to the devastating impact of anti-miscegenation laws on everyday people. However, empathy allowed the Supreme Court in Loving v. Virginia to see what it really meant to ban interracial marriage. Yet just because that meant the Warren Court came down on the side of the “little guy,” doesn’t mean it ignored constitutional principles.

This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

It just so happens that the Lovings were on the right side of the Constitution in their struggle to live with who they loved, where they were happiest, and where they wanted to raise their family.

If you get the chance to see The Loving Story, as I did at a DC screening earlier this week (more in Silver Spring next week), think about Mildred and Richard Loving and the countless couples who faced the same struggle. Think about how their state laws wronged not only them but also the Constitution. Think about how empathy put justice back on track.

Laura Murphy, Director, ACLU Washington Legislative Office, sums it up better than I ever could.

PFAW

Judge Won’t Vacate Prop 8 Decision, Rejects Argument that Gay Judge was Biased

Yesterday, proponents of California’s Proposition 8 went before a federal judge to argue that the ruling overturning the discriminatory law should be thrown out because the judge who issued it is gay.

Today, they were handed an epic takedown. In an order dismissing the motion to vacate the Prop 8 case, district court judge James Ware tore apart the arguments made by the anti-marriage equality lawyers who claimed that Judge Vaughn Walker’s decade-long same-sex relationship should have disqualified him from hearing the marriage equality case.

The arguments made by Prop 8’s defenders were so ridiculous (for example, see here and here) that it’s hard to pick just one part of Judge Ware’s takedown to quote, so I’ve picked out a few of my favorites.

The Prop 8 camp’s main line of argument was that the problem with Judge Walker wasn’t that he is gay but that he may at some point want to marry someone of the same sex, thereby benefiting from his own pro-marriage equality decision. This led them to partake in some celebrity-magazine style speculation about whether Judge Walker was planning to wed. Judge Ware responds that that type of speculation about a judge’s personal life isn’t enough to disqualify him from a case:

[D]isqualifying Judge Walker based on an inference that he intended to take advantage of a future legal benefit made available by constitutional protections would result in an unworkable standard for disqualification. Under such a standard, disqualification would be based on assumptions about the amorphous personal feelings of judges in regards to such intimate and shifting matters as future desire to undergo an abortion, to send a child to a particular university or to engage in family planning. So too here, a test inquiring into the presiding judge’s desire to enter into the institution of marriage with a member of the same sex, now or in the future, would require reliance upon similarly elusive factors.

Then there was the argument that Judge Walker’s long-term same-sex relationship “gave him a markedly greater interest in a case challenging restrictions on same-sex marriage than the interest held by the general public.” Judge Ware responds that in cases of fundamental rights, all members of society are affected by the outcome…in a way, turning the logic of the Prop 8 crowd (who argue that straight people will be hurt by gay marriage) on its head:

The fact that this is a case challenging a law on equal protection and due process grounds being prosecuted by members of a minority group does not mean that members of the minority group have a greater interest in equal protection and due process than the rest of society. In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right. One of the duties placed on the shoulders of federal judges is the obligation to review the law to determine when unequal treatment violates our Constitution and when it does not. To the extent that a law is adjudged violative, enjoining enforcement of that law is a public good that benefits all in our society equally. Although this case was filed by same-sex couples seeking to end a California constitutional restriction on their right to marry, all Californians have an equal interest in the outcome of the case. The single characteristic that Judge Walker shares with the Plaintiffs, albeit one that might not have been shared with the majority of Californians, gave him no greater interest in a proper decision on the merits than would exist for any other judge or citizen.

And then Judge Ware tells Prop 8 supporters that not all gay people think in the same way…so they can’t assume that a gay judge will come to a certain conclusion:

Finally, the presumption that “all people in same-sex relationships think alike” is an unreasonable presumption, and one which has no place in legal reasoning. The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief. On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits. The Motion fails to cite any evidence that Judge Walker would be incapable of being impartial, but to presume that Judge Walker was incapable of being impartial, without concrete evidence to support that presumption, is inconsistent with what is required under a reasonableness standard.

Ware concludes that requiring judges to recuse themselves under the standard proposed by Prop 8’s backers would lead to a “standard that required recusal of minority judges in most, if not all, civil rights cases.”
 

PFAW

Justice Scalia and Sex Discrimination

Justice Antonin Scalia is in the news again, having pronounced yet again that the United States Constitution does not prohibit the government from discriminating against women. The Huffington Post reports on a newly-published interview with the legal magazine California Lawyer:

[Interviewer:] In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

[Scalia:] Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.

The Huffington Post notes:

Marcia Greenberger, founder and co-president of the National Women's Law Center, called the justice's comments "shocking" and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.

Although you might not know it from what Scalia says, there is nothing in the Fourteenth Amendment that puts women outside its scope. The text is quite plain on that regard: "No state shall ... deny to any person within its jurisdiction the equal protection of the laws" (emphasis added). The last anyone checked, women are people.

Scalia has previously discussed with legal audiences his opposition to constitutional equality for women. In fact, he wrote a lone dissent 15 years ago in United States v. Virginia making his view clear: He believes that the landmark 1971 Supreme Court case ruling that the government cannot discriminate against women simply because they are women was wrongly decided. (Then-litigator Ruth Bader Ginsburg helped write the brief arguing for equality in that case.)

When it comes to the rights of women, Scalia’s Constitution is a stiff, brittle document, relegating women to the limited rights they were allowed to have in 1868, when the Fourteenth Amendment was adopted.

Interestingly, his approach is far more flexible for corporations, as we saw in Citizens United, when he concluded that mega-corporations have the same First Amendment rights as people for the purposes of election law.

Perhaps if a woman wants to have full constitutional protection from Justice Scalia, she needs to incorporate.

PFAW

The Conservative Assault on the Constitution

Last week, SCOTUSBlog had a podcast interview with legal scholar Erwin Chemerinsky, discussing his new book The Conservative Assault on the Constitution. The blog has asked Chemerinsky some follow-up questions, and his responses are worth reading.

For instance, he discusses the concept of a living Constitution and the hypocrisy behind the Right's claims of a consistent approach to judging cases.

Q. Within the context of the "conservative assault" you discuss in the book, can you please define the terms "living constitution" and "strict constructionist"?

- Everyone is a strict constructionist in that everyone believes that the text of the Constitution should be followed where it is clear. But the phrase "strict constructionist" was coined by Richard Nixon to refer to something more ideological: Justices who followed the conservative approach to interpreting constitutional provisions. Interestingly, conservatives are not strict constructionists in interpreting the Second Amendment. There conservatives read the Second Amendment as if it simply said "the right of the people to keep and bear arms shall not be infringed." They ignore the first half of the Amendment which speaks of the right existing for the purpose of having a well-regulated militia.

A belief in a "living Constitution" rejects the notion that the meaning of a constitutional provision is the same in 2011 as when it was adopted. A living Constitution says that in interpreting the Constitution, Justices and judges should consider history, tradition, precedent, and modern needs. There always has been a living Constitution and hopefully always will be. The opposite of a living Constitution is a dead Constitution and no society can be governed under that.

He also discusses how self-professed conservative "originalists" are selective in when they pay attention to original intent.

Q. You write in your book that "it is clear that conservatives often abandon the original-meaning approach when it does not serve their ideological purposes." Can you please elaborate - perhaps by providing an example or two?

- Affirmative action. I am skeptical that we can ever really know the original intent or meaning for a constitutional provision. But if ever it is clear, it is that the drafters of the equal protection clause of the Fourteenth Amendment intended to allow race-conscious programs of the sort that today we call affirmative action. The Congress that ratified the Fourteenth Amendment adopted many such programs. Yet originalist Justices, like Antonin Scalia and Clarence Thomas, pay no attention to this history in condemning affirmative action. Another example is campaign finance. There is absolutely no indication that the drafters of the First Amendment intended to protect the speech of corporations (that did not occur for the first time until 1978) or spending in election campaigns. But conservative Justices nonetheless find a First Amendment right for corporations to engage in unlimited expenditures in campaigns.

Of course, that is a reference to Citizens United, where the aggressively activist Roberts Court handed our elections over to powerful corporate interests. There is a direct line from that case to the new corporate-friendly gang that will be running the House of Representatives for the next two years.

Who sits on the Court has consequences for us all.

PFAW

Scalia’s Selective Originalism

Earlier this week, Supreme Court Justice Antonin Scalia told an audience of law students that the Constitution does not protect against sex discrimination. In a great column for Time today, Adam Cohen outlines what has gone so wrong with the trend toward vehement--but inconsistent--Constitutional originalism that Scalia represents:

The Constitution would be a poor set of rights if it were locked in the 1780s. The Eighth Amendment would protect us against only the sort of punishment that was deemed cruel and unusual back then. As Justice Breyer has said, "Flogging as a punishment might have been fine in the 18th century. That doesn't mean that it would be OK ... today." And how could we say that the Fourth Amendment limits government wiretapping — when the founders could not have conceived of a telephone, much less a tap?

Justice Scalia doesn't even have consistency on his side. After all, he has been happy to interpret the equal-protection clause broadly when it fits his purposes. In Bush v. Gore, he joined the majority that stopped the vote recount in Florida in 2000 — because they said equal protection required it. Is there really any reason to believe that the drafters — who, after all, were trying to help black people achieve equality — intended to protect President Bush's right to have the same procedures for a vote recount in Broward County as he had in Miami-Dade? (If Justice Scalia had been an equal-protection originalist in that case, he would have focused on the many black Floridians whose votes were not counted — not on the white President who wanted to stop counting votes.)

Even worse, while Justice Scalia argues for writing women out of the Constitution, there is another group he has been working hard to write in: corporations. The word "corporation" does not appear in the Constitution, and there is considerable evidence that the founders were worried about corporate influence. But in a landmark ruling earlier this year, Justice Scalia joined a narrow majority in striking down longstanding limits on corporate spending in federal elections, insisting that they violated the First Amendment.

The view of the Constitution that Scalia champions—where corporations have rights that the Constitution’s authors never imagined, but women, minorities, and working people don’t—has become a popular political bludgeon for many on the Right. GOP senators pilloried now-Justice Elena Kagan during her confirmation hearings for offenses such as thinking Congress has the right to spend money, arguing the case against giving corporations the same free speech rights as human beings, refusing to judge according to a subjective view of “natural rights,” and admiring the man who convinced the Supreme Court that school segregation was unconstitutional.

An avowed allegiance to the original intent of the Constitution has become a must-have for every right-wing candidate. The talking point sounds great, but it hides the real priorities behind it. Anyone who needs reminding of what the fidelity to the Constitution means to the Right needs just to look to Scalia.

 

PFAW

Federal Judge Rules Gay Marriage Ban Unconstitutional

A federal judge in California today ruled Proposition 8, the state’s ban on gay marriage, unconstitutional. Judge Vaughn Walker’s opinion declares the marriage ban a violation of the Constitution’s equal protection and due process clauses, and debunks the arguments of marriage equality opponents on issues ranging from the welfare of children raised by gay and lesbian parents (they do just fine) to the effect of same-sex marriage on other marriages (none).

To be honest, we’re still wading through the opinion, and will have more analysis of the legal arguments tomorrow. But for now, let’s appreciate the real effect this decision will have on people like Jeff Zarillo and Paul Katami, two of the plaintiffs in the case, who now have a chance at regaining the right to marry. Here are the video that the American Foundation for Equal Rights put together about Jeff and Paul:
 

Paul and Jeff from American Foundation for Equal Ri on Vimeo.

PFAW

The “Irrational Prejudice” Behind DOMA

Yesterday, a federal judge in Massachusetts struck down a key part of the Defense of Marriage Act on two separate constitutional challenges. Judge Joseph Tauro, a Nixon appointee, ruled that the provision banning the federal government from recognizing gay people’s marriages violates the Constitution’s guarantee of equal protection, and the principle of state sovereignty.

Tauro’s opinion in the equal protection case includes some strong words on the motivation behind DOMA, the 1996 law designed to push back against states granting marriage equality. The main purpose of the law was to disadvantage a particular set of people simply out of dislike for them, he writes…and that sort of motivation doesn’t pass constitutional muster:

This court simply “cannot say that [DOMA] is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which [this court] could discern a relationship to legitimate [government] interests.” Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.

In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

It seems pretty straight-forward to conclude that the Constitution doesn’t allow Congress to discriminate against people just because they dislike them…but, of course, conservative groups are already calling itactivism.”
 

PFAW

Outdated Stereotypes and Gender-Based Discrimination in Flores-Villar v. United States

On Monday, People For the American Way Foundation signed on to an amicus brief urging the Supreme Court to reverse the Ninth Circuit’s decision to enforce a section of the Immigration and Nationality Act that imposes a greater residency requirement for unmarried citizen fathers to transfer citizenship to their children born abroad than on unmarried citizen mothers.

The statute permits unmarried citizen fathers to transmit citizenship only if they have lived in the U.S. prior to the child’s birth for ten years, five of them after the age of 14. Mothers, on the other hand, are only required to have lived in the U.S. for just one year prior to the child’s birth. The petitioner’s father was 16 when his son was born, making it impossible for him to meet the requirement of five years of residency after age 14. Mr. Flores-Villar filed suit on the grounds that the law violates the equal protection component of the Fifth Amendment’s due process clause.

PFAWF’s brief, authored by the National Womens’ Law Center, argues that such gender-based discrimination perpetuates the old stereotype that unwed fathers have less meaningful relationships with their children than do unwed mothers, and the Supreme Court has rejected the use of such stereotypes in justifying gender-based classifications. The classifications also do nothing to further the government’s stated objective of encouraging parent-child relationships, and in countries where citizenship is derived from the father, would render stateless the children of fathers who cannot meet the requirements.

If the Supreme Court were to uphold the Ninth Circuit’s decision, it would be ignoring over 30 years of Equal Protection jurisprudence to enforce a discriminatory law that perpetuates outdated stereotypes and is harmful to family relationships.

PFAW

Sessions: Citizens United was just like Brown v. Board!

You do have to feel for the big corporations who were being discriminated against before the Supreme Court decided they could spend unlimited amounts of money in elections, right? Jeff Sessions, for one, is standing up for corporate underdogs who have fallen victim to moral injustice. Talking Points Memo reports:

Last night, elaborating on his criticisms of former Supreme Court Justice Thurgood Marshall, Sessions made the unusual comparison of Citizens United v. FEC to Brown v. Board of Education of Topeka.

"[Marshall] was right on Brown v. Board of Education. It's akin in my view to the Citizen's United case. The court sat down and we went back to first principles--What does the Constitution say? Everybody should be equal protection of the laws," Sessions told me after a Senate vote last night.

"Is it treating people equally to say you can go to this school because of the color of your skin and you can't?" Sessions asked rhetorically. "We've now honestly concluded and fairly concluded that it violates the equal protection clause."

Come again?

Let’s break this down into a few points that I guess we shouldn’t assume are obvious:

  1. Brown v. Board of Education ended the systematic segregation of the American school system. Citizens United v. FEC struck down a law that didn’t let corporations spend as much as they wanted to on electioneering communications.
  2. The GOP has spent a large part of the past two days attacking Justice Marshall for what they call his “activist” judicial philosophy. They define that philosophy as an insufficient reverence for the Constitution as originally written and intended.
  3. Brown v. Board of Ed (which Marshall argued) is a classic example of a case in which the Supreme Court interpreted part of the Constitution—the 14th Amendment—in a way at odds with the original intent of its writers, but in line with evolving social mores and values. Elena Kagan made that very point herself this morning, as did former Justice David Souter a few weeks ago.
  4. Sessions says that the same philosophy led to Brown v. Board and Citizens United, but continues to slam Thurgood Marshall, the architect of the Brown argument, while praising the results of Citizens United.

The confusing logic aside, the main point here is that Sessions just compared limits on corporate spending in elections with systematic racial segregation. This is the top Republican on the Senate Judiciary Committee. And abstract arguments about judicial philosophy aside, that’s just appalling.
 

PFAW

A Break from Umpire Analogies?

Well, this is a nice change. In her first few minutes of testimony, responding to questions from Judiciary Chairman Patrick Leahy, Supreme Court nominee Elena Kagan spoke about the Constitution as an enduring document that can be amended and interpreted in a changing world.

The founders recognized that “circumstances and the world would change,” Kagan said. They wrote about “unreasonable” search and seizure, but didn’t write a manual on what counts as unreasonable. “They didn’t do that because of this wisdom they had, because they knew the world was going to change,” she said.

Kagan outlines two varieties of change in constitutional interpretation: the formal amendment process and changing mores. She used as an example the passage of the 14th amendment in 1868, which established equal protection under the law, and the 1954 decision in Brown v. Board, which interpreted the amendment in a way never imagined in 1868 in order to desegregate American schools.

It’s nice to hear that Kagan won’t be engaging in the flawed “balls and strikes” analogy—we might end up hearing a conversation about what the Supreme Court actually does.

[Required reading: former Justice David Souter’s recent speech on this very subject].
 

PFAW