Author: Howard Wasserman


Marriage equality in the Supreme Court

With the success of marriage equality at the ballot box on Tuesday, nine states and the District of Columbia, now allow marriages between same-sex partners. And the failure of the ballot initiative in Minnesota, which would have preemptively halted any judicial or legislative allowance of marriage equality, could be taken as a reflection of new societal views.

The question is how that affects the SCOTUS’s decision as to whether to take any of the marriage-equality cases currently pending before it and, if it does, how to resolve them. One view has been that SCOTUS would not take the lead on this; instead, (as it did with anti-miscegination laws), it would await some critical mass of states getting to equality on their own, then step in to yank the remaining states into line. Of course, we do not know what that critical mass would be.

Before Tuesday, I would have said this would mean the Court denying cert in Perry (the Prop. 8 case), especially in light of the narrowness of the Ninth Circuit decision. But is 9 states, and some momentum on ths issue, enough? And is it enough for the Court to take the leap and say that barring same-sex marriage violates the Fourteenth Amendment (assuming there are five votes for that position)?

The DOMA cases present a much trickier issue on this point, because the Court is virtually obligated to take one of these cases. It cannot leave a situation in which a federal statute is unconstitutional, and thus inappicable, in just the Second Circuit (where two of the nine equality states are and a third recognizes same-sex marriages performed elsewhere). No we’re back to the question of whether nine states is sufficient to give the Court popular cover (again, assuming five votes for marriage equality).


Athletes and politics

One area of interest for me is the connection among sports, politics and free expression. I have written previously (and sort-of currently) about fan expression and I hope to someday do a book examining fan and athlete expression together. The latter has received a lot of attention in the last few weeks in the run-up to the election, with stories about which candidate sports figures supported and a bit of Twitter blowback against Obama supporter LeBron James, who urged people to go out and vote for the President.

Interestingly, athlete expression played out prominently over marriage equality and ballot initiatives in Minnesota and Maryland, both of which were resolved in favor of equality (the Minnesota initiative would have defined marriage as between one man and one woman and failed the Maryland initiative would establish marriage equality and passed). As I discussed here, Brendan Ayanbadejo of the Baltimore Ravens was an outspoken supporter of the Maryland initiative–outspoken enough to draw the ire of a Maryland state representative, who wrote a letter to the team insisting that they gag him. More prominent was Minnesota Vikings punter Chris Kluwe, who was uniquely outspoken in making one of the best defenses of marriage equality. Kluwe recently stopped blogging for the St. Paul Pioneer Press in protest of an op-ed that, while not endorsing either conclusion over the initiative, is far more critical of the anti-equality arguments.

A disturbing under-current to athlete expression is the repeated suggestion that the athlete ought not be doing this. Sometimes this is explicit, as with the Maryland legislator who labeled Ayanbadejo’s attempt to influence discussion on a controversial issue as “injurious behavior” or the Twitter trolls who told LeBron to “stick to basketball.” Sometimes it is implicit, as in this passive-aggressive ESPN column that, while not telling Kluwe he should stop speaking out, reminded him that he was lucky to be an NFL employee and would be wise not to do anything to undermine that position by distracting from his punting. The irony, of course, is that athletes are regularly criticized for not being politically engaged or activist enough. Of course, it always has been this way, probably worse, as the middle feature on this Slate podcast shows: The NFL no longer has activist players surveilled–as far as we know.




Some thoughts on the election

My political views have been made obvious in this forum in the past, so I’m pretty happy this morning. A couple of random thoughts.

1) My confidence level picked up around 5 p.m. yesterday afternoon when I picked my daughter up from school; that’s when I heard the results of the “election” at her school, which went 125-75 for Obama. As we all know, as Temple Beth Am Day School goes, so goes the country.

2) We had a split decision on sports predictors. A National League team won the World Series, which means a Democratic President; this is now 17/27 (62.9%). On the other hand, the Redskins lost at home on Sunday, their final home game before the Election, but the incumbent party retained the White House; this is now 17/19 (89 %). I have to admit, my anxiety level actually rose after that game.

3) Does this result suggest that independent expenditures by outside groups are not all there is to elections? And that Citizens United is not the death knell of democracy and otherwise the root of all that is wrong with the country? Republican Super PACS threw big money at six races–five Senate races and the presidency–and lost all six. Perhaps running non-stop ads for two months is not the way to appeal to voters, so simply throwing lots of money into the mix does not ensure electoral success. Or is Obama uniquely successful in organizing on the ground and at gathering large numbers of small donations? So while that organization could overcome unlimited individual and corporate PAC money, perhaps massive spending will make all the difference in four years, when Obama leaves the scene. [Update: To the list of “money can’t buy all,” I should add Linda McMahon, who spent $40-$ 50 million of WWE money in an unsuccessful Senate bid (which follows another $ 40-$50 million spent on a previous unsuccessful Senate bid].

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Stealing signs

This sign is on a house in my neighborhood in Miami-Dade County. The owners had been displaying an Obama sign for a couple of weeks, which was no longer there on Saturday (Jen and I noticed it and actually discussed whether the owner had taken it down or it had been stolen). This new sign, with the added message, was back this afternoon. This is not the sole example of alleged sign theft I have seen. Another house, displaying a number of Romney signs, included a homemade one reading “Obama Vandals, stealing only stiffens our resolve,” which I infer means they also had signs stolen or destroyed.

I do not know what it means for something to be Un-American or American; I certainly do not want anyone defining for me (nor do I have any interest in defining) what is or is not “American.” I am reading the sign to say something like “stealing signs is inconsistent with the freedom of speech, which so many think of as a core American value.” If so, I want to push back on that.

I previously descibed what I call symbolic counter-speech, in which one counter-speaks (in the Brandeisian sense) to a symbol using the symbol itself as the vehicle for the counter-speech. I identified three forms of symbolic counter-speech: 1) disengaging from the symbol (think Barnette); 2) confronting it with a competing, overriding symbol; and 3) attacking, often by destroying or eliminating, the symbol itself. Stealing a yard sign falls within the third category. The homeowner was obviously expressing his support for President Obama by displaying the sign (in a medium that the Supreme Court has recognized as uniquely important). Whoever took the sign was counter-speaking, expressing his opposition to Obama, by attacking and eliminating the supporting symbol. That is an unquestionably expressive act.

This does not mean the expressive act is unconditionally protected by the First Amendment, of course. Were they to find the thief, he could not successfully assert the First Amendment as a defense to a charge of theft, vandalism, or some other neutral, non-speech legal rule. So his expressive interests yield, in this situation, to the homeowner’s interests in his private property. But that does not mean the person who stole the sign was not exercising that core American value of free speech.

One other thing. The new yard sign is two-sided, placed so that both sides can be seen by someone on the street. But the added message only was placed on one side; it was printed out on a sheet of white see-through printer paper. The resulting effect, which you can see after the jump, is obviously unintended, but highly ironic in light of so much of the dislike for President Obama. Read More


Defending Nate Silver

Franita Tolson, guesting at Prawfs, wrote about the recent conservative attacks on Nate Silver: Deadsin offers (in the typical language of Deadspin, so be warned) a largely non-political explanation: Silver is being criticized (or at least questioned) by the political class (both activists and the mainstream media) for being a nerd relying on statistics, numbers, and math, rather than the “gut feelings” and “knowhow” and “real-world” experience that they have brought to the table for all these years. In other words, the political world is experiencing the same dynamic that the sports world (especially baseball) has been going through for about 15 years, since the rise of Moneyball and advanced metrics. Silver, of course, got his start writing for Baseball Prospectus. And as with many in baseball, the current guard in the political world either does not get it or does not want to get it. And as the math gets better, this will only intensify.

Thus, Chris Chilliza of WaPo could move Ohio into the “toss-up” category, despite the showing of fourteen polls for the past two weeks, in part because of the “absolute necessity for Romney to win the state if he wants to be president.” So because Romney really wants/needs it, the state must be a toss-up. This does not sound much different from baseball announcers who insist that average-but-“scrappy” players are better than superstars who produce big statistics because they “want it more” and “will do whatever it takes to win.”

By the way, for those of you who can’t get enough of this poll aggregation stuff, check out the Princeton Election Consortium, run by Dr. Sam Wang, a neuroscientist at Princeton. He uses a different model than Silver (and actually has criticized Silver’s approach), but with similar accuracy.


Whither the Jewish vote?

Has anyone heard or seen much about polls indicating how the Jewish vote is expected to go this time? Jews have historically leaned strongly Democratic, even as they, as group, have gained in socio-economic power (the famous paraprase of Milton Himmelfarb is that “Jews earn like Episcopalians and vote like Puerto Ricans.”). In 2008, Obama won around 74 % of the Jewish vote–this despite initial fears over older Jews, which prompted the Great Schlep in which younger Jews were encouraged to go visit their grandparents in Florida to encourage them to vote for Obama. And while the profile and influence of a Jewish conservative movement has risen in the past decade, the numbers have remained fairly stable since 1972. Georgetown’s Program for Jewish Civilization sponsored a symposium on the subject last week (videos included); interesting stuff. One of the speakers at the symposium identified data howing Obama ahead of where he was in the polls four years ago.

So I was surprised to learn of one recent, admittedly non-scientific poll: The first-graders in my daughter’s Reform Jewish day school (n=37) seem to be about equally divided between Obama and Ryan, with one class heavily for Romney. This presumably means their parents are similarly divided–or my daughter is in a preternaturally conservative and independent cohort. Needless to say, I was surprised; I expected something like a 75-25 split, maybe higher. Predictions that the Jewish vote would change have generally focused on the increasing populations of Orthodox Jews (who, like many religiously observant groups, tend to vote Republican) and of more-conservative immigrants from the former Soviet Union. But neither of those population points explains this result (which admittedly will not make it  into the 538 calculations).


Mrs. Coach speaks

Still more on the dust-up over Mitt Romney using Clear Eyes, Full Hearts in his campaign and speeches: Actress Connie Britton (who played Tami Taylor, a/k/a Mrs. Coach) and Sarah Aubrey (an executive producer on the show) wrote an op-ed in USA Today criticizing Romney for using the slogan, insisting that the women of Dillon, Texas would not approve. The piece particularly focuses on issues of health care and women’s rights–ACA, equal pay, the future viability of Planned Parenthood (they point out that the single mother of star running back “Smash” Williams worked there, a detail I did not know or remember).

Anyway, draw your own conclusions.


Jurisprudential homonyms

Today I was writing about the Supreme Court’s decision in Hicks v. Miranda, a 1975 Younger abstention case. This, of course, is only the Court’s second most-famous Miranda case. This Miranda, who was the plaintiff in the case, owned and operated a theatre in California trying to show “Deep Throat”.

This got me thinking: What are some examples of pairs or sets of SCOTUS cases featuring parties with the same or similar names, especially where one case is much more famous than the others. Note that I’m thinking of cases involving different parties who happen to have the same names. So this will not include the multiple habeas cases involving Louie L. Wainwright, the long-time Secretary of the Florida Department of Corrections. Nor will it include Harry Connick, Sr., the long-serving District of Attorney for New Orleans, who helped give us execrable law in both public-employee speech and municipal liability. Different spellings are ok–for example, Ginsberg and Ginzburg.

Have at it in the comments.


Politics, partisanship, and democracy

My thoughts and prayers go out to all the CoOp family (including my own family in NJ, NYC, and Long Island), friends, and readers dealing with the effects of Sandy. I hope you all are safe and that you have your power back soon. I want to consider two things with respect to Sandy’s effects on next week’s election.

First, folks are beginning to talk about how the storm will affect the mechanics of the election and whether state and local governments (who wield exclusive authority to administer the electoral process) hit by the storm will be ready and able to carry out an election, both with early voting ongoing this week and Election Day itself next week. This has lead to discussions of whether the election could or should be delayed, either by congressional action or by unilateral actions of individual states or localities. Here is some good analysis of the constitutional and statutory issues involved. Rick Hasen argues that this again demonstrates the need for Congress to create a uniform national scheme to respond to natural and other disasters that affect voting. Hasen calls this another example of Congress failing to act on what should be non-controversial issues resolvable with non-partisan solutions. He compares congressional inaction here with congressional inaction on ensuring continuity in the House of Representatives in the event of a terrorist or other attack.

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It’s not how you blog, it’s how you look

At his blog Noncuratlex, Kyle Graham (Santa Clara) proposes new mottos for other law blogs. Both of my current homes make the list, although with a strange obsession over how we look: My regular home at Prawfs (“Please Don’t Judge Us by Our Website’s Hideously Ugly Color Scheme“) and here (“Check out the Pretty, Pretty Logos of Many Leading Law Reviews“). My favorite was SCOTUSBlog: “The True Winner of the ACA Litigation“. Quite true.