Tagged: gay rights

0

Nation’s only History Book Festival returns to Lewes, DE — Sept. 28th & 29th

I had the great privilege of presenting at the 2017 History Book Festival. It was an absolute delight. The organizers and hosts were extraordinarily hospitable, the events were well attended and lively, the audience was bubbling over with questions. Overall, it was a terrific and memorable experience. Great start! And, to top it off, the town of Lewes is lovely.

Geoffrey StoneSex & the Constitution: Sex, Religion, & Law from America’s Origins to the Twenty-First Century (2017)

___________________________________________

The nation’s only History Book Festival returns to Lewes, DE., for its second year.

History Book Festival Speakers

Friday Sept. 28th & Saturday Sept. 29th

KEYNOTE (Friday Evening Sept. 28th / tickets here) 

— Blanche Wiesen Cook

  •  Eleanor Roosevet: The War Years & After, 1939-1962 (vol. 3)

 Interviewed by Paul Sparrow, Director of the FDR Library

 Musical accompaniment by David Cieri, composer for the Ken Burns documentary on FDR

_________________Saturday Sept. 29th_________________

 Lighting the Fires of Freedom: African American Women in the Civil Rights Movement by Janet Dewart Bell 

 Young Benjamin Franklin: The Birth of Ingenuity by Nick Bunker

The Comeback: Greg LeMond, the True King of American Cycling, and a Legendary Tour de France by Daniel de Visé

Valley Forge by Bob Drury and Tom Clavin,

Dinner in Camelot: The Night America’s Greatest Scientists, Writers, and Scholars Partied at the Kennedy White House by Joseph A. Esposito

Tinderbox: The Untold Story of the Up Stairs Lounge Fire and the Rise of Gay Liberation by Robert W. Fieseler,

The Royal Art of Poison: Filthy Palaces, Fatal Cosmetic, Deadly Medicine, and Murder Most Foul by Eleanor Herman

— The Lost Locket of Lewes (children’s historical fiction) by Ilona E. Holland, Ed.D

Damnation Island: Poor, Sick, Mad, and Criminal in 19th-Century New York by Stacy Horn

Kosher USA: How Coke Became Kosher and Other Tales of Modern Food by Roger Horowitz

The Hunger (historical fiction), by Alma Katsu

The Kennedy Debutante (historical fiction) by Kerri Maher 

The Widows of Malabar Hill (historical fiction) by Sujata Massey 

Five for Freedom: The African American Soldiers in John Brown’s Army by Eugene L. Meyer

The Rise of Yeast: How the Sugar Fungus Shaped Civilization by Nicholas P. Money

Inspector Oldfield and the Black Hand Society: America’s Original Gangsters and the U.S. Postal Detective Service Who Brought Them to Justice by William Oldfield and Victoria Bruce

Delaware’s John Dickinson: The Constant Watchman of Liberty 

— Chesapeake Requiem: A Year with the Watermen of Vanishing Tangier Island by Earl Swift

Miles and Me by Quincy Troupe

Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock by Amy Werbel 

Not Our Kind (historical fiction) by Kitty Zeldis

0

FAN 193 (First Amendment News) Eight Free Expression Take Away Points from Masterpiece Cakeshop Case (# 8: Seven Justices Discuss Free Expression Claim)

Earlier today the Court, by a 7-2 margin, sustained the Petitioner’s Free Exercise claim in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Even so, there was much in the various opinions that either indirectly or directly addressed the Free Expression claims rasied in the case.  The sketch below, replete with eight take away points, discusses that very issue.

* * *  * * *

MAJORITY OPINION (7 votes) : #1 — Subtext: Free Expression Implications  

Two First Amendment Claims: “The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.”

Two Interrelated First Amendment Claims: “[Petitioner Phillips] argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way con- sistent with his religious beliefs.”

“Since the State itself did not allow those marriages to be performed in Colorado, there is some force to the argument that the baker was not unreasonable in deeming it lawful to decline to take an action that he understood to be an expression of support for their validity when that expression was contrary to his sincerely held religious beliefs, at least insofar as his refusal was limited to refusing to create and express a message in support of gay marriage, even one planned to take place in another State.”

Viewpoint Discrimination: “[T]he Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.” [emphasis added]

KAGAN CONCURRENCE (Joined by Breyer): #2 — No Expressive Conduct in this Case 

No Expressive Conduct: “The cake requested was not a special “cake celebrating same-sex marriage.” It was simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike. See ante, at 4 (majority opinion) (recounting that Phillips did not so much as discuss the cake’s design before he refused to make it). And contrary to JUSTICE GORSUCH’S view, a wedding cake does not become something different whenever a vendor like Phillips invests its sale to particular customers with ‘religious significance.'”

“A vendor can choose the products he sells, but not the customers he serves—no matter the reason. Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. . . .” [emphasis added]

GORSUCH CONCURRENCE (Joined by Alito): #3 — Making a Cake for a Gay Marriage = Same as Celebrating Gay Marriage = Compelled Expression 

Expression without Words: “To suggest that cakes with words convey a message but cakes without words do not—all in order to excuse the bakers in Mr. Jack’s case while penalizing Mr. Phillips—is irrational. Not even the Commission or court of appeals purported to rely on that distinction.”

“Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it celebrates a same-sex wedding.”

“Like ‘an emblem or flag,’ a cake for a same-sex wedding is a symbol that serves as “a short cut from mind to mind,” signifying approval of a specific ‘system, idea, [or] institution.'”

Compelled Expression“Nor would it be proper for this or any court to suggest that a person must be forced to write words rather than create a symbol before his religious faith is implicated.”

Cake Celebrating Gay Marriage: “Suggesting that this case is only about ‘wedding cakes’—and not a wedding cake celebrating a same-sex wedding—actually points up the problem. At its most general level, the cake at issue in Mr. Phillips’s case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; understanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right.”

#4 — Significant Fact: Roberts Did Not Join Gorsuch Concurrence 

Though Chief Justice John Roberts’ First Amendment free speech voting record is very speech protectiive, in this case he elected not to join the Gorsuch concurrence. Why?

THOMAS CONCURRENCE (Joined by Gorsuch): #5 — Free Expression Claim Limits Reach of Obergefell

Expressive Conduct: “The conduct that the Colorado Court of Appeals ascribed to Phillips—creating and designing custom wedding cakes—is expressive. Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist’s paint palate with a paintbrush and baker’s whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding. . . . To [Mr. Phillips], a wedding cake inherently communicates that ‘a wedding has oc­curred, a marriage has begun, and the couple should be celebrated.’ Wedding cakes do, in fact, communicate this message. . . . Accordingly, Phillips’ creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message—certainly more so than nude dancing, Barnes v. Glen Theatre, Inc., or flying a plain red flag, Stromberg v. California . . .” [emphasis added]

No Evidence of Communicating a Message Required: “The dissent faults Phillips for not ‘submitting . . . evidence’ that wedding cakes communicate a message. Post, at 2, n. 1 (opinion of GINSBURG, J.). But this requirement finds no support in our prece­dents. This Court did not insist that the parties submit evidence detailing the expressive nature of parades, flags, or nude dancing.”

Compelled Affirmation Prohibited: “Forcing Phillips to make custom wedding cakes for same-sex marriages re­ quires him to, at the very least, acknowledge that same- sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to “bear witness to [these] fact[s],”Hurley, 515 U. S., at 574, or to “affir[m] . . . a belief with which [he] disagrees,” id., at 573.”

Obergefell no Bar to Free Expression Claim: [T]he fact that this Court has now decided Obergefell v. Hodges, 576 U. S. ___ (2015), [does not] somehow diminish Phillips’ right to free speech. “It is one thing . . . to con­clude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share [that view] as bigoted” and unentitled toexpress a different view. Id., at ___ (ROBERTS, C. J., dis­senting). This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized. The First Amendment gives individ­uals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage. Obergefell itself emphasized that the traditional understanding of marriage ‘long has been held—and continues to be held— in good faith by reasonable and sincere people here and throughout the world.’ (majority opinion). If Phillips’ continued adherence to that under­ standing makes him a minority after Obergefell, that is all the more reason to insist that his speech be protected.”

Limiting Reach of Obergefell: “In Obergefell, I warned that the Court’s decision would ‘inevitabl[y] . . . come into conflict” with religious liberty, “as individuals . . . are confronted with demands to partic­ ipate in and endorse civil marriages between same-sex couples.’ 576 U. S., at ___ (dissenting opinion). This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the free­dom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.” Id., at ___ (ALITO, J., dissenting).” [emphasis added]

#6 — Roberts & Alito did not join Thomas Concurrence & Its Analysis of Obergefell 

It is notewortthy that only Justice Gorsuch was willing to sign onto the Thomas opinion. Though Justice Alito’s supportive langauage was quoted, he declined to sign onto this opinion.  Same with the Chief Justice who in the course of oral arguments in the case stated: “when the Court upheld same-sex marriage in Obergefell, it went out of its way to talk about the decent and honorable people who may have opposing views.” Even so, he remained silent on this issue.

GINSBURG DISSENT (Joined by Sotomayor): #7 — No Free Expression Right Implicated 

No Free Expression Right: ” As JUSTICE THOMAS observes, the Court does not hold that wedding cakes are speech or expression entitled to First Amendment protection. See ante, at 1 (opinion concurring in part and concurring in judgment). Nor could it, consistent with our First Amendment precedents. [emphasis added]

“Phillips submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker’s, rather than the marrying couple’s. Indeed, some in the wedding industry could not explain what message, or whose, a wedding cake conveys. . . . And Phillips points to no case in which this Court has suggested the provision of a baked good might be expressive conduct.”

Note that the Court’s other two liberals (Justices Kagan and Breyer) did not join Ginsburg’s dissent. Why?

#8 — Total Tallies: Seven Justices Openly Discussed First Amendment Expression Issue

  • Three Justices (Thomas, Gorsuch & Alito) supported the free expression claim
  • Two Justices (Thomas & Gorsuch) suggted that the free expression claim could not be limited by Obergefell.
  • Four Justices (Kagan & Breyer concurring / Ginsburg & Sotomayor in dissent) suggsted that there was no valid free expression claim made in this case.
  • All total, 7 Justices (everyone save Kennedy & Roberts) discussed the First Amendment free expression issue.
0

FAN 192.1 (First Amendment News) Thomas & Gorsuch discuss First Amendment expression claim in Colorado baker case

While Phillips rightly prevails on his free-exercise claim, I write separately to address his free-speech claim. The Court does not address this claim because it has some uncertainties about the record. — Justice Clarence Thomas

Justice Clarence Thomas

Today the Supreme Court rendered its ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The vote in the case was 7-2 with Justice Anthony Kennedy writing for the majority and Justices Ruth Bader Ginsburg and Sonia Sotomayor in dissent.

The majority opinion was grounded in a First Amendment free exercise claim tailored to the specific facts of the case involving some evdience of the Colorado Civil Rights Commission’s “impermissible hostility toward the sincere religious beliefs motivating [the baker’s] objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.” Given the basis of its ruling, the majority did not reach the baker’s First Amendment freedom of expression claims.

Writing separately, and joined by Justice Neil Gorsuch, Justice Clarence Thomas concurred in part and concurred in the judgment. Justice Gorsuch also authored a concurring opinion joined by Justice Samuel Alito.  Unlike the majority, Thomas and Gorsuch addressed the First Amendment free expression claim in their separate opinions.

Question: What are we to make of the fact that neither Chief Justice John Roberts nor Justice Samuel Alito signed onto Justice Thomas’s more expansive opinion?

Here, first, are some excerpts from Justice Thomas’s opinion:

  • Expressive Conduct: “The conduct that the Colorado Court of Appeals ascribed to Phillips—creating and designing custom wedding cakes—is expressive. Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist’s paint palate with a paintbrush and baker’s whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding. . . . To [Mr. Phillips], a wedding cake inherently communicates that “a wedding has oc­curred, a marriage has begun, and the couple should be celebrated.” App. 162. Wedding cakes do, in fact, communicate this message. . . . Accordingly, Phillips’ creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message—certainly more so than nude dancing, Barnes v. Glen Theatre, Inc., or flying a plain red flag, Stromberg v. California . . .”
  • No Evidence of Communicating a Message Required: “The dissent faults Phillips for not ‘submitting . . . evidence’ that wedding cakes communicate a message. Post, at 2, n. 1 (opinion of GINSBURG, J.). But this requirement finds no support in our prece­dents. This Court did not insist that the parties submit evidence detailing the expressive nature of parades, flags, or nude dancing.”

  • Compelled Affirmation Prohibited: “Forcing Phillips to make custom wedding cakes for same-sex marriages re­ quires him to, at the very least, acknowledge that same- sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to “bear witness to [these] fact[s],”Hurley, 515 U. S., at 574, or to “affir[m] . . . a belief with which [he] disagrees,” id., at 573.”
  • Strict Scrutiny Standard: “Because Phillips’ conduct (as described by the Colorado Court of Appeals) was expressive, Colorado’s public- accommodations law cannot penalize it unless the law withstands strict scrutiny. Although this Court some­ times reviews regulations of expressive conduct under the more lenient test articulated in O’Brien, that test does not apply unless the government would have punished the conduct regardless of its expressive component. See, e.g., Barnes, 501 U. S., at 566–572 (applying O’Brien to evalu­ate the application of a general nudity ban to nude danc­ ing); Clark, 468 U. S., at 293 (applying O’Brien to evaluate the application of a general camping ban to a demonstra­tion in the park). Here, however, Colorado would not be punishing Phillips if he refused to create any custom wedding cakes; it is punishing him because he refuses to create custom wedding cakes that express approval of same-sex marriage. In cases like this one, our precedents demand “ ‘the most exacting scrutiny.’ ” Johnson, 491 U. S., at 412; accord, Holder v. Humanitarian Law Project, 561 U. S. 1, 28 (2010).”
  • “The Court of Appeals did not address whether Colo­ rado’s law survives strict scrutiny, and I will not do so in the first instance.”
  • Obergefell no Bar to Free Expression Claim: [T]he fact that this Court has now decided Obergefell v. Hodges, 576 U. S. ___ (2015), [does not] somehow diminish Phillips’ right to free speech. “It is one thing . . . to con­clude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share [that view] as bigoted” and unentitled toexpress a different view. Id., at ___ (ROBERTS, C. J., dis­senting). This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized. The First Amendment gives individ­uals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage. Obergefell itself emphasized that the traditional understanding of marriage “long has been held—and continues to be held— in good faith by reasonable and sincere people here and throughout the world.” Id., at ___ (majority opinion). If Phillips’ continued adherence to that under­ standing makes him a minority after Obergefell, that is all the more reason to insist that his speech be protected.”

  • Limiting Reach of Obergefell: “In Obergefell, I warned that the Court’s decision would “inevitabl[y] . . . come into conflict” with religious liberty, “as individuals . . . are confronted with demands to partic­ ipate in and endorse civil marriages between same-sex couples.” 576 U. S., at ___ (dissenting opinion) (slip op., at 15). This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the free­dom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.” Id., at ___ (ALITO, J., dissenting).”

Next, here are some excerpts from Justice Gorsuch’s opinion:

  • Justice Neil Gorsuch wrote a concurrence joined by Justice Samuel Alito

    Cakes Without Words Can Convey a Message “To suggest that cakes with words convey a message but cakes without words do not—all in order to excuse the bakers in Mr. Jack’s case while penalizing Mr. Phillips—is irrational. Not even the Commission or court of appeals purported to rely on that distinction. Imagine Mr. Jack asked only for a cake with a symbolic expression against same-sex marriage rather than a cake bearing words conveying the same idea. Surely the Commission would have approved the bakers’ intentional wish to avoid participating in that message too. Nor can anyone reasonably doubt that a wedding cake without words conveys a message. Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it celebrates a same-sex wedding.”

  • Making Cakes vs Conveying a Message:  “Suggesting that this case is only about ‘wedding cakes’—and not a wed- ding cake celebrating a same-sex wedding—actually points up the problem. At its most general level, the cake at issue in Mr. Phillips’s case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; un- derstanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right. The problem is, the Commission didn’t play with the level of generality in Mr. Jack’s case in this way.”

Note: The Gorsuch opinion, unlike the Thomas one (in which Gorsuch joined), did not mention Obergefell.  

9

Crisis of the Dissents Divided? — Disagreement among the Obergefell Four

imagesIn the various news feeds and pundit commentaries concerning the recent same-sex marriage case, the focus has been on the divide between the majority and dissenting opinions. Some side with the majority, others with the dissenters. Putting such differences aside for the moment, what is noteworthy is that while the Justices in the majority all spoke with one voice, the same was not true for the dissenters.

Though the judgment in Obergefell v. Hodges was 5-4, none of the four separate dissents garnered more than a total of three votes:

  • 3 votes: Chief Justice Roberts’ dissent — joined by Justices Scalia and Thomas
  • 3 votes: Justice Alito’s dissent — joined by Justices Scalia and Thomas
  • 2 votes: Justice Scalia’s dissent — joined by Justice Thomas
  • 2 votes: Justice Thomas’ dissent — joined by Justice Scalia

Notably, neither the Chief Justice nor Justice Alito signed onto any of the other dissents. Why?

The Scalia Dissent: Too confrontational?

UnknownWhile the Chief Justice and Justice Alito share many of the constitutional concerns stated by Justice Scalia (e.g., the need for judicial restraint, adherence to precedent, undermining the political process, and deference to the traditional roles of the states), they tend to be uneasy with the kind of in-your-face confrontational tone Justice Scalia employed in his unrestrained dissent.

It is a tried-and-true canon of civility: Attempt to avoid confrontational terms or phrases such as “hubris,” “egotistic,” “mummeries,” and “silly extravagances.” By that creed of civility it is unnecessarily vituperative to equate another Justice’s reasoning with “mystical aphorisms of the fortune cookie” or “pop-philosophy” or to refer to that Justice’s opinion as “judicial Putsch” – even if the seriousness of the latter is “not of immense personal importance” to you.

The Thomas Dissent: Too cabined or too natural law focused?

UnknownThe Chief Justice and Justice Alito also did not sign onto Justice Thomas’ dissent. Why? Though it is more difficult to answer this question, one explanation is a possible disagreement over the contours of due process as Justice Thomas offered it up. That is, his conservative colleagues may have been uncomfortable with Thomas’ reliance on Blackstonian notions of due process – notions perhaps too cabined for their constitutional tastes. Consider in this regard Professor Michael Dorf’s observation over at SCOTUSblog: “To the extent that Justice Thomas would allow any substantive due process, it would be for the liberty of movement only, and failing that, for no more than negative liberties. Marriage, as state recognition, would not be a fundamental right for anyone.”

And then there is Justice Thomas’ invocation of natural law and natural rights. The debate over the use and relevance of natural law has been an ongoing one in conservative circles. On that score, Chief Justice Roberts’ former boss, William Rehnquist, once found himself in the crosshairs of controversy brought on by a defender of natural law. See Harry V. Jaffa, Storm over the Constitution (1999) and his Original Intent and the Framers of the Constitution: A Disputed Question (1994) and his article “Judicial Conscience and Natural Rights,” 11 U. Puget Sound L. Rev. 219 (1987).

The Alito Dissent: Reservations about the “further decay” of marriage argument?

(drawing by Arthur Lien: courtartist.com)

(drawing by Arthur Lien: courtartist.com)

While there is much similarity between the Roberts and Alito dissents on matters such as due process, equal protection, and the specter of vilifying people of faith, both nonetheless declined to affirm the other’s dissent. What might explain the Chief Justice’s unwillingness?

Did he have some reservations about the following?: “the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women. This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage. While, for many, the attributes of marriage in 21st-century America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay.”

The Roberts Dissent: Too charitable?

(credit: WSJ)

(credit: WSJ)

If you believe (as Justice Alito seems to) that same-sex marriages may contribute to the “further decay” of marriage, then you are unlikely to be as generous of spirit as the Chief Justice was when he declared: “If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. . . .” By the same normative token, Justice Alito is not one who would appear to be inclined to say: “Many people will rejoice at [today’s] decision, and I begrudge none their celebration.”

Or what about this Roberts’ statement?: “The opinion describes the ‘transcendent importance’ of marriage and repeatedly insists that petitioners do not seek to ‘demean,’ ‘devalue,’ ‘denigrate,’ or ‘disrespect’ the institution. . . . Nobody disputes those points.” Nobody?

Here, too, speculation is more the measure than certainty.

Crisis of the Dissents Divided?

However close my speculations are to the mark, one thing is certain: there was no unanimity of thought strong enough to convince the four dissenting Justices to lend all of their names to a single opinion. Despite their strong differences with the majority opinion, they, too, had reservations about one another’s views of law and life and how those differences should be expressed.

* * * * 

(credit: NYT)

(credit: NYT)

On a related point: What are we to make of the fact that none of the four liberal Justices who signed onto Justice Kennedy’s majority opinion in Obergefell found it necessary, or desirable, to write separate concurrences? The same was true with Justices Stevens, Ginsburg and Breyer in Romer v. Evans (1996) and Lawrence v. Texas (2003), and later with Justices Ginsburg, Breyer, Sotomayor and Kagan in United States v. Windsor (2013).

One would think that these four Justices would push for a more protective conception of equal protection concerning discrimination against gays and lesbians. No? Then again, perhaps these four think the body of law tracing back to at least Romer will suffice.  And so far it has.

0

Posner on Same-Sex Marriage: Then and Now

. . .  I disagree with contentions that the Constitution should be interpreted to require state recognition of homosexual marriage on the ground that it is a violation of equal protection of the laws to discriminate against homosexuals by denying them that right. Given civil unions, and contractual substitutes for marriage even short of civil unions, the discrimination involved in denying the right of homosexual marriage seems to me too slight (though I would not call it trivial) to warrant the courts in bucking strong public opinion . . . . — Richard Posner (2005)

At various points [in oral arguments in the same-sex cases], Judge Posner derided arguments from the Wisconsin and Indiana lawyers as “pathetic,” “ridiculous,” and “absurd.” — David Lat (2014)

This is the ninth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, the sixth here, the seventh here, and the eighth one here.

Following the fourth installment in the Posner on Posner series of posts, someone commented on a point Judge Posner made in response to a question posed to him by Professor Kathryn Watts. That comment is set out below. Following it are excerpts from Judge Posner’s 1997 Michigan Law Review essay critiquing Professor William Eskridge’s The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment (1996). Accompanying them are some excerpts from Judge Posner’s opinion Baskin v. Bogan (7th Cir., Sept. 4, 2104, cert. denied and cert denied sub nom., 135 S. Ct. 316) in which he struck down two state laws banning same-sex marriage.

judgeposner_2010All of this is offered up duly mindful what Judge Posner said in a July of 2014 interview: “I’ve changed my views a lot over the years. I’m much less reactionary than I used to be. I was opposed to homosexual marriage in my book Sex and Reason (1992) [see here re those arguments], which was still the dark ages regarding public opinion of homosexuality. Public opinion changed radically in the years since. My views have changed about a lot of things.”

Of course, those comments from his 2014 interview with Joel Cohen were rendered before the Baskin case came before his court. Since the same-sex marriage cases are not  before the Supreme Court for review, I did not ask the Judge to comment on the matter.

That said, I begin with the online commentators remarks and will thereafter proceed to offer some excerpts:

  1. from Posner’s Sex and Reason (S&R)
  2. his Michigan Law Review essay (MLR)
  3. his Baskin opinion (BB), and
  4. some excerpts from the petition (CP) filed by the Attorney General of Indiana in Baskin since it references Judge Posner’s Michigan Law Review Essay and does so in support of its arguments for reversing the Seventh Circuit’s ruling.

Before offering any excerpts, however, I offer a historical sketch of the legal context in which Judge Posner found himself when he first wrote his book and law review essay and thereafter when he wrote his Baskin opinion.  

(Note: Some of the links below will open in Firefox and Chrome but not in Safari.)

Praise for Posner: On Judges Educating the Public

LGBT (12-3-14)Judge Posner, I am thinking you will probably read comments so I am taking this opportunity to reach out to you and sincerely thank you for your decision on the Wisconsin & Indiana cases on Gay Marriage. Your ruling was a Tour de Force (!) that got quoted & re-quoted all over the gay blogosphere. The lawyers and other Judges will remember other things you did, but the PUBLIC will remember your decision in the Gay Marriage cases. This will be the opinion that will be cited in the History books. And what was REALLY GREAT is how fast you turned it around. It was oral arguments, then BAM! . . .”

“How wrong you are when you say in your interview, ‘it’s unrealistic for judges to try to educate the general public. I don’t think the general public is interested in anything about judicial opinions except who won the case.’ Not in the Gay Marriage cases; the interest is not simply that we won, but WHY we won. Your words have been copied and pasted all over the gay blogosphere. I know that there is one gay website that gets 30 million hits a year, just that one site. Trust me your opinion was read by millions. It wasn’t simply who won, but WHY the gays won. It was validation to them, they read it and felt validated. You told them they were Equal, and that raised a lot of emotions. Tears were shed, a lot of them. People were commenting how they were reading your opinion and crying, it was very emotional for many, many people. Your opinion will most certainly go down in the history books on the history of the Gay Rights Movement. And I thank you deeply for it.”

______________________

The Historical Backdrop

UnknownTurn the clock back to 1992, the time when then Judge Posner published Sex and Reason. That was before the Hawaii Supreme Court’s seminal ruling in Baehr v. Lewin (1993) in which it ruled that denying marriage licenses to same-sex couples violated the equality of rights provision of the state constitution unless the state could demonstrate a compelling interest for such discrimination. And the year before Posner published his Michigan Law Review essay (when Eskridge taught at Georgetown), President Bill Clinton signed the Defense of Marriage Act into law. Recall, that law permitted the states to refuse to recognize same-sex marriages and remained on the books until Section 3 of the Act was declared unconstitutional by a 5-4 margin in United States v. Windsor. In 1999 Vermont Supreme Court took the lead in ordering the state legislature to establish laws permitting same-sex marriages (Baker v. Vermont was the case). In 2000 the Vermont legislature enacted just such a law, making Vermont the first state in the Union to recognize same-sex marriages.

 As for guidance from the Supreme Court, recall that Romer v. Evans (a rather confusing opinion by a divided Court) was handed down in 1996 and Lawrence v. Texas in 2003.

Different Domains: Scholarly Opinions vs Judicial Opinions 

If pursued with characteristic Posnerian relentlessness, [several of his] premises [in Sex and Reason] could yield radically pro-gay policies. But Posner does not press his analysis and, instead, neglects his stated first principles. His treatment of gaylegal issues tends to collapse into well-meaning ad hoc-ness.

[R]epealing sodomy laws and outlawing overt discrimination against bisexuals, gay men, and lesbians are easy cases for a rationalist, libertarian analysis. But a tough-minded cost-benefit analysis [such as the one Posner employs] would not stop with the easiest cases. Recognizing the same constitutional right to privacy for same-sex intimacy as is accorded different-sex intimacy, ending the military’s exclusion of bisexuals, gay men, and lesbians, and requiring states to issue marriage licenses to same-sex couples are conclusions that are scarcely less compelling under Posner’s first principles. Yet Posner himself rejects or avoids these latter conclusions. And he does not even discuss other issues of profound importance to lesbian, gay, and bisexual communities.                        – William Eskridge (1992)

Professor William Eskridge

Professor William Eskridge

One does not have to defend Richard Posner’s early views on same-sex marriage to concede the obvious: it was a different legal world. Still, a new legal order was emerging as evidenced by two noteworthy pieces by Professor William Eskridge: First, his 1992 Yale Law Journal review essay of Sex and Reason, and second, his 1993 Virginia Law Review article, “A History of Same-Sex Marriage.” And then there was Professor Robin West’s critical 1993 Georgetown Law Journal review essay on Sex and Reason.

 Richard Posner, an intermediate appellate judge, was not then a part of that emerging order. As a jurist he yielded, so he asserted, to the dictates of judicial modesty. While such dictates understandably restricted the direction of his judicial opinions, they need not have dictated the direction of his scholarly opinions in which he often demonstrated a unique cerebral bravado and a willingness to be a maverick in forging creative arguments. Moreover, in his capacity as a public intellectual and legal scholar, Posner was quite outspoken in refuting the critics of his work. See, e.g., his “The Radical Feminist Critique of Sex and Reason” (1993) article. In all of this, it is important to note that Posner nonetheless: (1) favored decriminalizing homosexual sex; (2) endorsed contracts of cohabitation for same-sex couples; and (3) was fine with legislative enactments legalizing same-sex marriage.

Thus, prior to the oral arguments in Baskin v. Bogan and the opinion in that case, what Posner had written in Sex and Reason and in his Michigan Law Review essay gave a meaningful degree of legal legitimacy to the campaign to oppose same-sex marriage. As late as 2004, Posner’s arguments were reproduced in a collection of essays (edited by Andrew Sullivan and first published in 1997) on same sex-marriage. And then there is his 2005 statement quoted at the outset of this post. It took nearly 17 years after the Michigan Law Review essay was published before Judge Posner expressed any significantly different views, first in a 2014 interview and then in a 2014 judicial opinion. Why so long?

A pragmatic reformer is concerned with what works and therefore cannot ignore public opinion or political realities just because the things he wants to change are not rooted in nature but instead are “mere” constructs. — Richard Posner (1995)

Safe Harbor Read More

4

Posner opinion on same-sex marriage cases — no law clerk drafts needed

Judge Richard Posner

Judge Richard Posner

He is a rara avis — he writes his own judicial opinions (nearly 3000).  Law clerks need not bother with drafts. He writes his own scholarly articles (over 300-plus of them) and erudite books (40-plus). Law clerks need not bother with writing them either.

In a world where judicial “plagiarism” is the accepted norm, Judge Richard Posner is his own man, his own author, and his own thinker. Make of him what you will, but you gotta admire the guy for his hard work, dedication, and integrity.

All of this was made manifest recently in two same-sex marriage cases (Baskin v. Bogan and Wolf v. Walker), which were argued before a panel of the Seventh Circuit on August 26, 2014. The oral arguments in the cases, especially Posner’s interactions with the counsel, have been the talk of the town. In them, Posner minced no words as he cut through the clichéd babble tendered in defense of the state laws therein challenged.

Yesterday, slightly more than a week after those arguments, Judge Posner wrote for the Court in a clear-headed and well-reasoned 40-page opinion.

No cutting and pasting here; no arguments weighed down by the pull of tedious string citations; and no ambiguity of argument. Not surprisingly, the likes of Holmes and Kafka were summoned to buttress the logic of his opinion, this with a dollop of Posner’s own cost-benefit analysis mixed in for persuasive measure. This is not to say, however, that the opinion lacks a good discussion of the relevant case law. Hardly. Rather, my point is that Posner’s work in these cases does not read like some group project or something out of a law school moot court exercise. No! It has style and sophistication.

Now think: could a fresh-out-of-law-school clerk do all that, and in such a short period of time? Probably not . . . unless his name was Richard Posner (on that score, see here).

Speaking of Judge Posner, next month we plan to post a series of pieces on the good Judge, including a post consisting of questions on 26 topics posed to him by 24 noted legal persona (professors, journalists, and judges), replete with his replies to all of them. Stay tuned.

5

“Deal” Reached on Don’t Ask, Don’t Tell

President Obama has experienced conflict with some LGBT rights advocates who contend that he has moved sluggishly on the issue of Don’t Ask, Don’t Tell.  DADT requires the discharge of known “homosexuals” from the military.

During his presidential campaign, Obama promised to repeal the ban, and since his election, social movement organizations have pushed him on this issue.  In order to appease liberal advocates of LGBT rights, President Obama first promised that he would start looking into the issue of lifting the ban last year. Earlier this year, Secretary of Defense Robert Gates announced a formal “study” of the impact of lifting the ban.  The results of the study are due in December.

Representative Patrick Murphy and Senator Lieberman, however, introduced bills to repeal DADT. These bills conflict with the Obama’s “measured” approach.  Yesterday, several media outlets reported that Obama reached a compromise with Murphy, Lieberman and LGBT rights organizations.  Under the deal, Murphy and Lieberman would amend their bills to provide that DADT would remain the law until such time that the Defense Department completes its review, determines that a repeal of DADT will not impact military readiness or recruitment, and promulgates regulations on the issue. 

Read More