SCOTUSblog on Legal Maneuvering in Same Sex Marriage Proceedings

Tom Goldstein has a post at SCOTUSblog entitled “Lawyers as heroes or goats in fight over same-sex marriage.” He talks about how strategic decisions by lawyers in the same sex marriage lawsuits could have ramifications for the rights of gay people for the next couple of decades.

I’m a proponent of marriage equality, and I’m hopeful that the Supreme Court will side with the bulk of Circuit Courts that bans on marriage equality are unconstitutional. But, my opinion as an armchair lawyer is that the more strategically sound course of action would have been to take the 6th Circuit panel opinion – which upheld same sex marriage bans – to the 6th Circuit en banc. First of all, there is a decent chance the full court would have reversed the panel. Secondly, I think time is on the side of marriage equality proponents. In my opinion, the longer it takes to get to the Supreme Court, the more likely a favorable outcome.

But, I suppose it’s easy for me to sit back and advocate for a more gradual pace. There were no legal impediments to me marrying the person I love.

Indiana Appeals Marriage Equality Decision to the U.S. Supreme Court

Via the Indiana Law Blog, Indiana’s Attorney General Greg Zoeller has filed a petition for certiorari with the United States Supreme Court asking for review of the 7th Circuit’s blistering opinion holding that Indiana’s “marriage protection” law violated the Equal Protection Clause of the 14th Amendment to the United States Constitution.

The respondent same sex couples seem to have filed their response almost at once. They agree that the U.S. Supreme Court should consider the case. They state the question as:

Whether a statute violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution by prohibiting same-sex couples from marrying and by refusing to recognize their lawful, out-of-state marriages.

versus the State’s characterization of the issue presented:

1. Whether the Due Process and Equal Protection Clauses of the Fourteenth Amendment permit States to define marriage as a legal union between one man and one woman.

2. Whether the Due Process and Equal Protection Clauses permit States to treat as void same-sex marriages from other jurisdictions.

The State’s characterization of the issue is slightly disingenuous. Nobody is saying that the State can’t define marriage as a legal union between one man and one woman; only that the definition violates the Equal Protection Clause if it also excludes same sex couples from inclusion in the definition.

As to the timing, I suspect there was collaboration between the Plaintiffs and the State to get their filings into the Supreme Court by the deadline for the Supreme Court to consider the case during this session. The Attorney General’s press release notes that:

Today was the deadline for Indiana to file its cert petition in order to be considered along with the Utah, Oklahoma and Virginia petitions during the Supreme Court’s first conference Sept. 29 where justices will to decide which cases to hear early in their next term, which begins in October and lasts through June 2015.

In fact, that was probably one reason for the 7th Circuit panel’s rapid turn around time between hearing oral argument and issuing its opinion.

Just browsing, I see that the State cites a 1997 law review article from Judge Posner entitled, “Should there be homosexual marriage and, if so, who should decide?” 95 Mich. L. Rev. 1578 (1997). However, one of the citations to this piece by the State, at least, is misleading. They quote a bit by Posner where he says that there is formal equality inasmuch as gays are allowed to marry opposite sex partners just like heterosexual couples but somehow manage to miss the next sentence where he says that the practical effect is to “exclude homosexuals from a fundamental social institution.”

Posner’s 1997 article is a review of a piece by Prof. William Eskridge entitled “The Case for Same Sex Marriage.” Posner is generally respectful of Prof. Eskridge’s work but takes issue with Eskridge’s historical accounts of gay couples. Posner offers speculation that the rise of intolerance against gays in the West corresponds with the rise of “companionate marriage” — marriage where the couples are supposed to be companions instead of the woman being chiefly a breeder for the man. (My unstudied notion was that marriage was more of an evolution from a property-centered arrangement to romantic relationships, emulating such relationships as they became fashionable in the royal courts.) In any event, Posner suggested that companionate relationships had the effect of outing the gay people who didn’t share such companionship and thereby provoking increased hostility against them.

In the law review article, Posner observes that public opinion in favor of same sex marriages had shifted from unthinkable to slight. (The last 17 years has, of course, seen a quantum leap in that public support.) And public support seems to be at the crux of his disagreement with Eskridge about whether the Supreme Court should recognize a constitutional right being violated if same sex marriage is illegal. He says that Eskridge’s arguments were fine legal arguments but, based on the lack of public support, such arguments would be “usurpative” if adopted by the Supreme Court. It’s an interesting question whether public support ever had a legally had a role to play (as a practical matter, it often does — see for example, the Supreme Court’s internment of Japanese during World War II). But, if it does, public support is now on the side of same sex marriage along with those technical legal arguments. And, in 1997, Posner said that before the Supreme Court found a right to same sex marriage in the Constitution, public opinion would have to shift, a state court or state legislature should adopt same sex marriage as a policy, and the rest of the nation should learn from exercise.

This post has been a little unstructured, but that’s all I have time for at the moment, so here you go.

Oral Arguments in 7th Circuit Marriage Equality Lawsuits – Posner, Williams, and Hamilton Panel Judges

The 7th Circuit is conducting oral arguments today in combined Indiana and Wisconsin cases considering the constitutionality of laws prohibiting same sex marriages. The panel drawn to hear the cases are Judges Posner, Williams, and Hamilton. Posner is a Reagan appointee, Williams is a Clinton appointee, and Hamilton is an Obama appointee. This is not a good draw for the Attorney Generals of the states seeking to have their laws prohibiting same sex marriages upheld.

Posner who, just from a two-dimensional political analysis, might be expected to be the most sympathetic to the marriage laws on the books is not a reliable enthusiast for socially conservative positions. Looking at his Wikipedia page (how is that for legal analysis!) he has expressed opinions sympathetic to abortion rights and skeptical of the drug war. With respect to gay marriage in particular, Judge Posner offered a discussion at his blog with Gary Becker. He believes the available evidence suggests that homosexuality is innate and, as such, “if homosexuality is innate, it becomes difficult to see why it should be thought to require regulation.” He concludes:

It seems that the only remaining basis for opposition to homosexual marriage, or to legal equality between homosexuals and heterosexuals in general, is religious. Many devout Christians, Jews, and Muslims are strongly opposed to homosexual marriage, and to homosexuality more generally. Why they are is unclear. If as appears homosexuality is innate, and therefore natural (and indeed there is homosexuality among animals), and if homosexuals are not an antisocial segment of the population, why should they be thought to be offending against God’s will? Stated differently, why has sex come to play such a large role in the Abrahamic religions? I do not know the answer. But whatever the answer, the United States is not a theocracy and should hesitate to enact laws that serve religious rather than pragmatic secular aims, such as material welfare and national security.

(emphasis added).

I can’t imagine the chances of the State attorneys general gets any better with Judges Williams and Hamilton. Ian Millhiser, writing for Think Progress, says of the panel draw, “Marriage equality supporters just won the lottery.”

Ferguson & Tennesse v. Gardner

After the police released a statement about Mike Brown supposedly committing robbery and stealing some cigars before being killed by a police officer while running away, I couldn’t help but notice the similarity in facts to a prominent Supreme Court case about the use of deadly force. The case was Tennessee v. Garner, 471 U.S. 1 (1985). Per the Wikipedia entry:

At about 10:45 p.m. on October 3, 1974, Memphis Police Department Officers Leslie Wright and Elton Hymon were dispatched to answer a burglary call next door. Officer Hymon went behind the house as his partner radioed back to the station. Hymon witnessed someone running across the yard. The fleeing suspect, Edward Garner, stopped at a 6-foot-high (1.8 m) chain-link fence. Using his flashlight, Hymon could see Garner’s face and hands, and was reasonably sure that Garner was unarmed. The police testified that they believed Garner was 17 or 18 years old; Garner was in fact 15 years old. After Hymon ordered Garner to halt, Garner began to climb the fence. Believing that Garner would certainly flee if he made it over the fence, Hymon shot him. The bullet struck Garner in the back of the head, and he died shortly after an ambulance took him to a nearby hospital. Ten dollars and a purse taken from the burglarized house were found on his body.

Hymon acted according to a Tennessee state statute and official Memphis Police Department policy authorizing deadly force against a fleeing suspect. The statute provided that “if, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.”

The United States Supreme Court decided that the officer’s actions violated the decedent’s Fourth Amendment rights. This was, apparently, a departure from the common law where deadly force was permitted against a suspected felon who, given the opportunity to submit to the police, nevertheless attempted to flee. The Supreme Court in Garner reasoned:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.
. . .
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.

For those interested in such things, Graham v. Connor, 490 U.S. 386 (1989) is another landmark Fourth Amendment case concerning police use of force — more generally and not just the use of deadly force:

The Fourth Amendment “reasonableness” inquiry is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

An interesting wrinkle to this objective reasonableness test is that it attempts to assess the use of force from the perspective of an “objectively reasonable” officer. The upshot is that constitutionally permitted use of force isn’t rendered unconstitutional due to the subjective malice of the actual officer and constitutionally prohibited use of force isn’t rendered permissible due to the subjective good faith intentions of the officer.

Do Corporations Have Religious Beliefs?

I don’t know the legal answer to that question – if it has been squarely addressed before, but the Hobby Lobby case was argued to the Supreme Court today and the question came to mind again. The ACA requires that if a corporation provides compensation to its employees in the form of health insurance benefits that the insurance include, among other things, coverage for contraception. The owners of the shares in Hobby Lobby Stores, Inc. oppose on religious grounds certain IUDs and pills that prevent impregnation of a fertilized egg into the uterus.

In my mind, corporations are incapable of belief and the religious beliefs of individuals are distinct from the religious beliefs of the corporations in which they have an ownership interest.

Corporations are a government created legal fiction designed to limit personal responsibility. There is obviously utility to the corporate structure. But, I don’t understand how religious beliefs can get through the corporate shield but personal liability cannot.

I could probably get behind allowing individual owners to abandon the corporate form and exercise their religious beliefs to avoid the contraception mandate if they felt that strongly about it. Or, better yet, go single payer and disassociate insurance and employment altogether.


Judge Posner Is Not Amused

A March 12, 2014 decision by the 7th Circuit Court of Appeals must have been gratifying for the plaintiff-appellee in the case of Central States v. Lewis. Judge Posner gave the defendant-appellants a beat down – their lawyer in particular.

Plaintiff was a health plan. Defendant had been injured in a motor vehicle accident. The health plan paid for defendant’s medical bills to the tune of about $180,000 following a motor vehicle accident. Defendant (through her Georgia attorney — the accident took place in Georgia.) turned around and sued the person who caused the accident. So far, so good. The motorist’s insurance company paid defendant $500,000. The health plan has a lien against that settlement. The defendant is supposed to pay back her health plan the $180,000 because the wrongdoer has now paid for the injury. You can’t double dip. But her attorney just ignored the lien, paid his client $200,000 and pocketed the remaining 60%. (Awfully high as a contingency fee as Judge Posner notes).

The health plan filed suit to enforce the lien and get their $180k back. The District Court entered a preliminary injunction ordering the attorney to put at least $180k in his client trust account on behalf of his client until the lien issue was resolved. He ignored the order. When pressed, the lawyer proclaimed that his client had already spent her money and that none of the money in his firm’s account was from that settlement. When pressed for an accounting, their documentation was skeletal. The District Court entered a finding of civil contempt which was what was on appeal here.

The only supporting evidence cited (it is not discussed) is an affidavit by Lewis saying that she and her husband had spent her entire share of the settlement proceeds on a new house, a vehicle, and “repayment of personal loans, medical expenses, prescriptions, living expenses, and other expenses”; a pair of affidavits by Lashgari stating that neither he nor his law firm is “in possession of funds that could be used to” restore $180,000 to a client trust account; and a bank statement dated June 2011 for a trust account maintained by Lashgari’s law firm, Lashgari & Associates, P.C., (visited March 12, 2014). The bank statement shows the $500,000 deposit of the settlement proceeds and a subsequent withdrawal of $202,000, representing Lashgari’s disbursement to Lewis of her share of the settlement. The share he retained—$298,000, a shade short of 60 percent of the settlement proceeds—seems too high for a contingent fee, but he argues that Lewis owed him for unspecified “advances” that he had made to her. The latest entry in the statement is for June 30, 2011— fewer than three weeks before this lawsuit was filed—and shows a balance of $341,000.

These documents—the only evidence cited in the defendants’ brief—show that Lewis and Lashgari willfully ignored the plan’s lien against the settlement proceeds. Lewis’s statement does not indicate the value of her assets; even if she has spent every last cent of the settlement proceeds that she received, it doesn’t follow that she’s assetless— presumably she still has the vehicle and the house, and she has not indicated their value. And though her statement was not notarized until December 2012, it purports to state her financial situation as of May 2012; there is no subsequent information about her finances. As with Lewis, so with Lashgari: one of his affidavits states that the money in the trust account from Lewis’s settlement has been spent, but there is no information about the account’s current balance or the assets of his law firm.

. . .

The defendants’ conduct has been outrageous. After resolving the merits of the underlying suit, the district court should give serious consideration to transmitting copies of this opinion and the record to the Department of Justice and to the General Counsel of the Georgia Bar. In the meantime, we direct the district court to determine whether the defendants should be jailed (a standard remedy for civil contempt, see, e.g., Turner v. Rogers, 131 S. Ct. 2507, 2512–13 (2011); In re Grand Jury Proceedings, 280 F.3d 1103, 1107–08 (7th Cir. 2002)), until they comply with the order to deposit the settlement proceeds in a trust account.

Judge Posner described the defendants’ behavior as “contumacious effrontery.” He also questions why the District Court has been so slow to deal with this case.

CATO Brief on Truthiness in Political Speech

The Supreme Court case of Susan B. Anthony List v. Driehaus involves a challenge to an Ohio law that makes it illegal to “[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard for whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.” A parallel provision proscribes false statements “designed to promote the adoption or defeat of any ballot proposition or issue.” Susan B. Anthony List is a pro-life organization who planned to put up billboards that said “Shame on Steve Driehaus! Driehaus voted FOR tax-payer funded abortions.” They based this statement on Rep. Driehaus voting for the Affordable Care Act. He countered that the ACA did not fund abortions and threatened legal action. The Susan B. Anthony List’s advertiser refused to put up the ads due to the threatened action.

In any event, the CATO Institute with the assistance of P.J. O’Rourke filed a pretty bold amicus brief in opposition to the Ohio law and in support of the Susan B. Anthony List. It contends that truthiness is a time-honored and, more importantly, First Amendment protected part of American political discourse.

After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America? Voters have to decide whether we’d be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn’t administered quickly enough to secular humanist professors of Chicano studies.

I tend to agree with CATO on this one. Even setting aside First Amendment concerns, policing political speech for honesty is an unworkable legal thicket.

7th Circuit: No Preliminary Injunction for Notre Dame on Contraception Challenge

I’m not sure I’ll get to a full review of the 7th Circuit’s decision in Notre Dame v. Sebelius (pdf), but the first few pages were good reading.

The ACA gives Notre Dame a route for opting out of providing contraception or paying for contraception for its students and employees. If it fills out a form saying:

“I certify that, on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to
be covered; the organization is organized and operates as a
nonprofit entity; and the organization holds itself out as a
religious organization.”

then it gets an exemption. The oral argument I heard seemed to have Notre Dame’s counsel indicating that filling out the form violated its religious beliefs. However, the real objection seems to be that its students and employees would still have access to birth control. In the case of students, the insurer, Aetna would provide it; and in the case of employees, its third party administrator, Meritain would provide it. The federal government would reimburse Meritain up to 110% of its costs. As for Aetna, per the court:

Aetna can expect to recoup its costs of contraceptive coverage from savings on pregnancy medical care, since there will be fewer pregnancies if contraception is more broadly available, at no cost, to Notre Dame’s female employees and students, as well as from other regulatory offsets.

Neither Aetna nor Meritain have religious objections to contraception.

Judges Posner and Hamilton did not see a preliminary injunction being justified as they don’t appear to believe that filling out the form described above constitutes a religious burden and (I suppose – I haven’t finished reading the case) the subsequent imposition of a burden on Aetna and Meritain isn’t Notre Dame’s to complain about.

7th Circuit: Boys Basketball Hair Length Rule Violates Equal Protection

Yesterday, the 7th Circuit issued an opinion in the case of Hayden v. Greensburg Community School (pdf) concerning a complaint over a hair length rule imposed by a boys basketball coach at Greensburg Junior High.

It’s tough to draw a lot of long term conclusions from this case since it was in a sort of odd procedural posture where the parties had stipulated to facts and asked the court to enter judgment one way or another based on those stipulated facts. The record didn’t have a lot of information about what, if any, burdens were imposed on the girls basketball team. If there had been a showing that the burdens imposed on girls were comparable, even if different, the decision apparently might have been different.

But, Judges Rovner and Easterbrook reversed the District Court judge and found that the facts did support an equal protection claim based on the fact that boys were required to cut their hair short and girls had no apparent hair length rule:

This is a case of disparate treatment rather than disparate impact; the hair-length policy, being applicable only to boys teams, draws an explicit gender line. The intent to treat boys differently from girls is therefore evident from the one-sided nature of the policy.
. . .
The hair-length policy applies only to male athletes, and there is no facially apparent reason why that should be so. Girls playing interscholastic basketball have the same need as boys do to keep their hair out of their eyes, to subordinate individuality to team unity, and to project a positive image. Why, then, must only members of the boys
team wear their hair short?

Update Bob Cook, writing at Forbes, has an article with a lot more detail about the background of this case.

Corporate Religion

Cases are coming down the line analyzing whether businesses purchasing insurance plans and providing them to employees as compensation can, based on religious objections, get out of the Obamacare mandate that the plans include birth control. (See, e.g.).

Sometimes, the business in question is a corporation, and a question that has to be addressed is whether a corporation can be said to have bona fide religious beliefs. And, of course they cannot. The corporate form is a government construct designed to shield individuals from personal responsibility for their actions in order to encourage economic activity. [Insert standard rant about how libertarians can be anti-government and pro-personal responsibility and tolerate the existence of the corporate form.] Because the corporation, as an entity, is entirely a government created legal fiction; it does not legally have any qualities not provided for under the law — moral belief is not such a quality.

Then, the question becomes, when do the moral beliefs of individual owners become relevant to the legal rights of the corporation? That’s a closer question; but I’d suggest that if the corporate form shields an individual owner from a creditor of the corporation; that shield also forms a barrier to the owner’s moral concerns. If it’s a shield, it’s a barrier — you can’t let the Holy Ghost through one direction without individual liability coming through the other way.