U.S. Supreme Court

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The Supremes, Judge Posner, and gay marriage

The news late last week that the Supreme Court would hear an appeal from the Sixth Circuit ruling upholding bans on same-sex marriage in Ohio, Michigan, Kentucky, and Tennessee brought to mind the Seventh Circuit ruling last fall written by Judge Posner.  Mark Joseph Stern writing in Slate noted that suddenly there was a “race” among judges to …”write the one marriage equality opinion that history will remember.”  But Stern wrote

Thursday’s ruling by 7th Circuit Judge Richard Posner, which struck down Indiana’s and Wisconsin’s gay marriage bans, is a different beast altogether. In his opinion, Posner does not sound like a man aiming to have his words etched in the history books or praised by future generations. Rather, he sounds like a man who has listened to all the arguments against gay marriage, analyzed them cautiously and thoroughly, and found himself absolutely disgusted by their sophistry and rank bigotry. The opinion is a masterpiece of wit and logic that doesn’t call attention to—indeed, doesn’t seem to care about—its own brilliance. Posner is not writing for Justice Anthony Kennedy, or for judges of the future, or even for gay people of the present. He is writing, very clearly, for himself.

Ironically, by writing an opinion so fixated on the facts at hand, Posner may have actually written the one gay marriage ruling that the Supreme Court takes to heart.Other, more legacy-minded judges have attempted to sketch out a revised framework for constitutional marriage equality, granting gay people heightened judicial scrutiny and declaring marriage a fundamental right. But Posner isn’t interested in making new law: The statutes before him are so irrational, so senseless and unreasonable, that they’re noxious to the U.S. Constitution under almost anyinterpretation of the equal protection clause.

I spent time this morning reading Judge Poster’s opinion.  It is readable and understandable even by non-lawyers.  He takes each argument made by Indiana and then Wisconsin against same-sex marriage one at a time and uses precedent, social science, and history to demolish them.  Posner sets out to answer four questions.

Does the challenged practice involve discrimination, rooted in a history of prejudice, against some identifiable group of persons, resulting in unequal treatment harmful to them?

Is the unequal treatment based on some immutable or at least tenacious characteristic of the people discriminated against (biological, such as skin color, or a deep psychological commitment, as religious belief often is, both types being distinct from characteristics that are easy for a person to change, such as the length of his or her fingernails)? The characteristic must be one that isn’t relevant to a person’s ability to participate in society.

…

Does the discrimination, even if based on an immutable characteristic, nevertheless confer an important offsetting benefit on society as a whole?

…

Though it does confer an offsetting benefit, is the discriminatory policy overinclusive because the benefit it confers on society could be achieved in a way less harmful to the discriminated-against group, or underinclusive because the government’s purported rationale for the policy implies that it should equally apply to other groups as well?

Throughout his decision, Judge Posner concentrates on children and marriage.  The same persons who argue against same-sex marriage are often the same persons who argue that the state needs to encourage heterosexual marriage to provide stability to children.

Our pair of cases is rich in detail but ultimately straight- forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

In Indiana a same-sex couple can adopt while in Wisconsin, one member of a same-sex couple can adopt.  So the logical conclusion is that marriage is just as important for same-sex couples with children as for heterosexual couples with families.  And he points out that those who say that same-sex marriage will some how erode or damage heterosexual marriage need only to look at the 10 year history in Massachusetts to see that there is no impact at all.

Judge Posner’s decision is full of “zingers” most aimed with impatience at irrational argument.  But he also takes aim at Justice Scalia citing his dissent in Lawrence v. Texas which struck down laws against sodomy.

…But Justice Scalia, in a dissenting opinion in Lawrence, 539 U.S. at 586, joined by Chief Justice Rehnquist and Justice Thomas, thought not. He wrote that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage. Id. at 605.

In the end, Judge Posner can find no rational argument against same-sex marriage.

Pete Prete with Equality Beyond Gender waved a Marriage Pride flag attached to an American flag outside the Supreme Court in Washington on Friday.

Pete Prete with Equality Beyond Gender waved a Marriage Pride flag attached to an American flag outside the Supreme Court in Washington on Friday.

The Supreme Court will hear arguments on two questions:  The right to marry and the right to have out-of-state marriages recognized.  Because there are four states in the appeal with four different questions, the Supreme Court in accepting the appeals wrote the questions they will try to answer.  Some in the legal community were alarmed, but the New York Times quotes Harvard Law professor, Lawrence Tribe

“The court’s order represents good housekeeping,” said Laurence H. Tribe, a law professor at Harvard.

But Professor Tribe also voiced a small note of caution.

“The rephrased questions,” he said, “technically leave open a middle path along which the court would prevent states from discriminating against same-sex couples lawfully married in their home states without requiring any state to take the affirmative step of issuing its own marriage licenses to same-sex couples.”

I haven’t seen the appeal documents, but if the arguments are anything like those from Indiana and Wisconsin and I assume they are as those are the arguments being made nationally, the Supreme Court need to look no further than Judge Posner’s decision for answers and require the right to marry in all states.  And, after all, Justice Scalia has already concluded that once sodomy laws are found unconstitutional, same-sex marriage must follow.  I predict a 7-2 decision in favor of the right to marry.  We will see in June if I am correct.

Photograph:  Jabin Botsford/The New York Times

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Like a speeding locomotive

That’s the image that comes to mind when I think of how quickly things have moved when it comes to marriage equality.  It has only been 10 years since same-sex marriage became legal in Massachusetts.  And only a few years longer that that since Vermont adopted civil unions.  For a while I was keeping track and blogging every time a state was added, but I just couldn’t keep up – or keep track.  Now Federal benefits are available to all legally married couples regardless of the state in which they reside and the Supreme Court is letting stand Appeals Court decisions ruling prohibitions unconstitutional.

According to a post in the Washington Post’s “The Fix”, most gay Americans now live in states with marriage equality.

As the map of where gay marriage is legal has shifted and changed over the past few years, we’ve tracked a harder-to-measure component of the new laws: How many gay Americans live in states that allow them to marry.

In June, we anticipated that the tipping point was imminent. Based on data from Gallup surveys in 2012, a higher percentage of the country’s gay population already lived in gay-marriage-legal states than the population on the whole. With Monday’s Supreme Court non-decision, the percentage of gay Americans and Americans on the whole living in states where gay marriage is legal topped 50 percent.

Gay Marriage map

I am unclear as to how Gallup determined the percentage of person living in a state who were gay or lesbian, but given the way Gallup polls, I assume it is by self-reporting in response to a question.  According to the Fix, marriage equality has arrived in states with a lower population of gay residents.

So what happens next is anyone’s guess but with the growing numbers of same-sex marriages, I’m not sure how a Supreme Court ruling to the contrary could be implemented without chaos.  A more likely scenario is a decision like the one in Loving v. Virginia.  When the Court finally ruled on interracial marriage, the majority of states already allowed such unions.

This does not mean that the opposition will not fight on.  A story in the New York Times today reported that

Leading opponents of same-sex marriage vowed on Wednesday to push ahead with their legal fight, noting that several federal appeals courts had not yet ruled on the issue and that the Supreme Court could still decide to leave it up to the states.

Even as the list of states authorizing same-sex marriage swells, the opponents noted Justice Anthony M. Kennedy’s order on Wednesday totemporarily block a federal appeals court ruling striking down the marriage restrictions in Idaho. The temporary order came as a surprise to many advocates on both sides of the issue, since the Supreme Court on Monday had allowed similar decisions from three other appeals courts to take effect.

“The marriage battle will continue,” said Jim Campbell, a senior legal counsel at Alliance Defending Freedom, a Christian legal group that has defended marriage restrictions in several states.

Opponents seem determined that each state should have a right to define its marriage laws, but that just doesn’t seem likely to me given the Loving decision as a precedent.

“If the liberals on the court had the votes to declare same-sex marriage a constitutional right, why didn’t they take any of the cases on offer Monday?” asked Brian Brown, the president of the National Organization for Marriage.

“That gives hope that the Supreme Court will not launch another Roe v. Wade,” Mr. Brown said, referring to the 1973 decision legalizing abortion nationwide.

Mr. Brown also rejected the argument that, once same-sex marriages had been allowed in many states, the law could not be rolled back if the voters wanted to do so.

But most legal experts drew the opposite conclusion from Monday’s action.

“We know, from the court’s willingness Monday to allow all these marriages to go forward,” that opponents of same-sex marriage “are virtually guaranteed to lose” before the current Supreme Court, said Michael C. Dorf, a constitutional expert at Cornell Law School.

In the meanwhile, I have friends getting married, both same-sex and opposite sex.  I also have friends in both categories who have or are getting divorced.  All people want is to live their own lives and to have the legal protections due them.  I think the opposition needs to get out of the way of the speeding locomotive.

Map:  The Washington Post

 

 

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Chief Justice Roberts, voting rights and statistics

During the oral arguments for Shelby County v. Holder, Chief Justice John Roberts quoted some statistics that, according to his interpretation, showed the turnout ratio of minority voters to white voters was worse in Massachusetts than in any other state.  This prompted a quick response from the Massachusetts election officials and a more measured one from Nate Silver on FiveThirtyEight.  As the Chief Justice may be learning, statistics are tricky things.

The day after the remarks by the Chief Justice the Globe headline was

Chief justice blasted over Mass. voting ‘cheap shot’

Talk about feeling insulted!  The nerve to compare us to Mississippi!

“Do you know which state has the worst ratio of white voter turnout to African-American voter turnout?” Roberts asked Donald Verrilli Jr., solicitor general for the Department of Justice, during Wednesday’s arguments.

“I do not know that,” Verrilli answered.

“Massachusetts,” Roberts responded, adding that even Mississippi has a narrower gap.

Roberts later asked if Verrilli knew which state has the greatest disparity in registration. Again, Roberts said it was Massachusetts.

The problem is, Roberts is woefully wrong on those points, according to Massachusetts Secretary of State William F. Galvin, who on Thursday branded Roberts’s assertion a slur and made a declaration of his own. “I’m calling him out,” Galvin said.

Galvin was not alone in his view. Academics and Massachusetts politicians said that Roberts appeared to be misguided. A Supreme Court spokeswoman declined to offer supporting evidence of ­Roberts’s view, referring a ­reporter to the court transcript.

On Thursday,  Galvin tried to set the record straight. “We have one of the highest voter registrations in the country,” he said, “so this whole effort to make a cheap-shot point at Massachusetts is deceptive.”

Map of Section 5 Covered Jurisdictions

Map of Section 5 Covered Jurisdictions (Photo credit: Wikipedia)

So what’s going on here?  Trust Nate Silver to explain.

Section 5 of the Voting Rights Act, which is being challenged by Shelby County, Ala., in the case before the court, requires that certain states, counties and townships with a history of racial discrimination get approval (or “pre-clearance”) from the Department of Justice before making changes to their voting laws. But Chief Justice Roberts said that Mississippi, which is covered by Section 5, has the best ratio of African-American to white turnout, while Massachusetts, which is not covered, has the worst, he said.

Chief Justice Roberts’s statistics appear to come from data compiled in 2004 by the Census Bureau, which polls Americans about their voting behavior as part of its Current Population Survey. In 2004, according to the Census Bureau’s survey, the turnout rate among white voting-aged citizens was 60.2 percent in Mississippi, while the turnout rate among African-Americans was higher, 66.8 percent. In Massachusetts, conversely, the Census Bureau reported the white turnout rate at 72.0 percent but the black turnout rate at just 46.5 percent.

As much as it pleases me to see statistical data introduced in the Supreme Court, the act of citing statistical factoids is not the same thing as drawing sound inferences from them. If I were the lawyer defending the Voting Rights Act, I would have responded with two queries to Chief Justice Roberts. First, are Mississippi and Massachusetts representative of a broader trend: do states covered by Section 5 in fact have higher rates of black turnout on a consistent basis? And second, what if anything does this demonstrate about the efficacy of the Voting Rights Act?

Turns out that the Current Population Survey has a very high margin of error.

One reason to be suspicious of the representativeness of Mississippi and Massachusetts is the high margin of error associated with these calculations, as noted by Nina Totenberg of NPR.

Like other polls, the Current Population Survey is subject to sampling error, a result of collecting data among a random subsample of the population rather than everyone in the state. In states like Massachusetts that have low African-American populations, the margin of error can be especially high: it was plus-or-minus 9.6 percentage points in estimating the black turnout rate in 2004, according to the Census Bureau. Even in Mississippi, which has a larger black population, the margin of error was 5.2 percentage points.

The other problem is that the Chief Justice was using 2004 figures when the 2010 numbers had a lower margin of error.  So what, if any thing can we conclude.

In the chart below, I have aggregated the 2004 turnout data into two groups of states, based on whether or not they are covered by Section 5. (I ignore states like New York where some counties are subject to Section 5 but others are not.) In the states covered by Section 5, the black turnout rate was 59.2 percent in 2004, while it was 60.8 percent in the states that are not subject to it. The ratio of white-to-black was 1.09 in the states covered by Section 5, but 1.12 in the states that are not covered by it. These differences are not large enough to be meaningful in either a statistical or a practical sense.

So did Chief Justice Roberts misconstrue the data? If he meant to suggest that states covered by Section 5 consistently have better black turnout rates than those that aren’t covered by the statute, then his claim is especially dubious. However, the evidence does support the more modest claim that black turnout is no worse in states covered by Section 5. There don’t seem to be consistent differences in turnout rates based on whether states are covered by Section 5 or not.

The bigger potential flaw with Chief Justice Roberts’s argument is not with the statistics he cites but with the conclusion he draws from them.

And here what Silver thinks we should be asking.

…the fact that black turnout rates are now roughly as high in states covered by Section 5 might be taken as evidence that the Voting Rights Act has been effective. There were huge regional differences in black turnout rates in the early 1960s, before the Voting Rights Act was passed. (In the 1964 election, for example, nonwhite turnout was about 45 percent in the South, but close to 70 percent elsewhere in the country.) These differences have largely evaporated now.

How much of this is because of the Voting Rights Act, as opposed to other voter protections that have been adopted since that time, or other societal changes? And even if the Voting Rights Act has been important in facilitating the changes, how many of the gains might be lost if the Section 5 requirements were dropped now?

To put it nicely, the Chief Justice is using correct statistics to come to not only the incorrect conclusion, but also to ask the wrong questions.  Silver concludes

These are difficult questions that the Supreme Court faces. They are questions of causality – and as any good lawyer knows, establishing a chain of causality is often the most difficult chore in a case.

Statistical analysis can inform the answers if applied thoughtfully. But statistics can obscure the truth when they become divorced from the historical, legal and logical context of a case.

We can only hope that some law clerk at the Supreme Court reads FiveThirtyEight and talks to enough Justices.  Given all the shenanigans going on in Section 5 covered and not covered states on voting rules, now is not the time to over turn this modest brake insuring voting rights.

Official 2005 photo of Chief Justice John G. R...

Official 2005 photo of Chief Justice John G. Roberts (Photo credit: Wikipedia)

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Myths about the Health Care Law

I will likely be writing a lot about the health care law as the Supreme Court hears the case next week.   Walter Dellinger had a nice piece in today’s Washington Post dissecting five of the myths related to the Affordable Health Care Act or Health Care Reform.  I look at 3 of the myths.

Myth 1:  Everyone is forced to buy health insurance.  Dellinger writes

The law states that, beginning in 2014, individuals must ensure that they and their dependents are covered by health insurance. Taxpayers who do not meet this requirement will have to pay a penalty that the law calls a “shared responsibility payment.” It begins at $95 for the first year and never exceeds 21 / 2 percent of anyone’s annual taxable income.

A great majority of Americans, of course, have health insurance through their employers, Medicare or Medicaid and are already in compliance with this requirement. Given the relatively modest payment required of those who choose not to maintain insurance, no one is being literally forced to buy a product they don’t want.

The challengers argue that the mandate is a binding requirement that makes anyone who goes without insurance a lawbreaker. The government has determined, however, that those who pay the penalty, like those who are exempt from the penalty, are not lawbreakers. As a practical matter, the so-called mandate is just a relatively modest financial incentive to have health insurance.

Myth 3:  If the Supreme Court uphold the Affordable Care Act, Congress could force us to buy anything.

The health-care case is a test of Congress’s power under the Constitution to regulate commerce among the states. One way to defend the law is simply to say that a requirement to purchase insurance or any other product sold in interstate commerce is obviously a regulation of that commerce. President Ronald Reagan’s solicitor general, Charles Fried, and conservative judge Laurence Silberman have adopted this view.

The Obama administration is not relying upon such a sweeping argument, however, and its more limited claim would not justify any law that required Americans to buy products such as cars or broccoli.

Myth 5:  The Law is an extraordinary intrusion into liberty

Liberty is always said to be fatally eroded, it seems, when great advances in social legislation take place. The lawyers who urged the Supreme Court to strike down the Social Security Act of 1935 argued that if Congress could provide a retirement system for everyone 65 and older, it would have the power to set the retirement age at 30 and force the very young to support everyone else.

It was said that if Congress had the authority to create a minimum wage of $5 an hour, it would also be a regulation of commerce to set the minimum at $5,000 an hour. In 1964, critics argued that if Congress could tell restaurant owners not to discriminate on the basis of race, it could tell them what color tablecloths to use. None of these things happened.

Nothing in the health-care law tells doctors what they must say to patients or how those patients are to be treated. It only requires people to either have insurance coverage or pay a modest tax penalty.

I think this last is the argument you hear the most.  Change is always scary and many argue their fears.  One of the big arguments used against the Equal Rights Amendment by opponents was that it would require all bathrooms to be unisex.  In Virginia where I worked for the General Assembly to ratify the amendment, this was pretty potent especially with older women.  I think they envisioned a public rest room where men were lined up in full view using urinals!

How will the Court decide?  Hard to predict but there is one piece of hopeful new.  A moot court at the National Constitutional Center upheld Health Care Reform, 8 to 1.    The judges were:

Chief Judge: Timothy K. Lewis, Of Counsel at Schnader, Harrison, Segal & Lewis and former Judge, United States Court of Appeals for the Third Circuit

D. Michael Fisher, Judge, United States Court of Appeals for the Third Circuit

Thomas C. Goldstein, Partner, Goldstein and Russel, P.C., co-founder and publisher of SCOTUSblog

Kent A. Jordan, Judge, United States Court of Appeals for the Third Circuit

Theodore McKee, Chief Judge, United States Court of Appeals for the Third Circuit

Neil S. Siegel, Professor of Law and Political Science and co-director of the Program in Public Law at Duke University School of Law

Dolores K. Sloviter, Judge, United States Court Appeals for the Third Circuit

Patricia Wald, Judge, United States Court of Appeals for the District of Columbia Circuit

Richard C. Wesley, Judge, United States Court of Appeals for the Second Circuit

You can see video here.

 

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Citizens United and the 2012 election

We thought the Congressional elections in 2010 were heavily influenced by PACs after the Supreme Court Citizens United decision but we actually did not get the full impact.  While the case was decided with various concurrences and dissents in part,  it upheld the right of corporations to have free political speech.  Because, as Mitt Romney can tell you, “corporations are people, too.”  So now we are reaping what the Supreme Court sowed.  Secret money is flowing to Super PAC’s and influencing the Republican primary.  And anyone who says that it is OK because unions have the same rights is mad.  Sheldon Adelson, a casino magnate, just dropped $5 million to shore up a pro-Gingrich PAC.  No union I know could do that.  New York Times published this account on the 9th

But on Friday, the cavalry arrived: a $5 million check from Mr. Adelson to Winning Our Future, a “super PAC” that supports Mr. Gingrich. By Monday morning, the group had reserved more than $3.4 million in advertising time in South Carolina, a huge sum in a state where the airwaves come cheap and the primary is 11 days away. The group is planning to air portions of a movie critical of Mr. Romney’s time at Bain Capital, the private equity firm he helped found.

The last-minute injection underscores how the 2010 landmark Supreme Court ruling on campaign finance has made it possible for a wealthy individual to influence an election. Mr. Adelson’s contribution to the super PAC is 1,000 times the $5,000 he could legally give directly to Mr. Gingrich’s campaign this year.

And Mr. Adelson is not the only one.  Most contributors are hidden.

So what can we do about this?  Martha Coakley, Masschusetts Attorney General  writes in the Huffington Post that we need a Constitutional amendment to make it clear that corporations are not people.

There is a national movement afoot to amend the Constitution to make clear that the First Amendment applies only to people and not corporations. Several proposed amendments have been introduced in Congress, including the so-called “People’s Rights Amendment” introduced by Congressman James P. McGovern with bipartisan support. Further, at least 10 states, including Massachusetts, have introduced resolutions calling on Congress to pass one of these proposed amendments.

I was proud to join with 25 other state Attorneys General during the Citizens case in filing a brief urging the Supreme Court to leave the states’ ability to regulate and restrict corporate political spending intact. And I am proud to be the first state Attorney General to call for passage of a constitutional amendment to reverse the Citizens decision.

But Constitutional amendments take time and the outcome of an effort is never certain.  I remember working for the Equal Rights Amendment which finally failed.  The ideal may be that states should be allowed to make their own regs for their states.  Montana is already headed in that direction with the recent Montana Supreme Court ruling that Citizen’s United does not apply to Montana campaign finance laws.

Last Friday [December 30, 2011], the Montana Supreme Court upheld the constitutionality of a 1912 voter initiative – the Corrupt Practices Act – that prohibits corporations from making contributions to or expenditures on behalf of state political candidates and political parties. In 2010, the Supreme Court ruled that a similar federal prohibition was unconstitutional, prompting a wave of bills and court rulings that erased prohibitions on corporate and union political expenditures around the country.

“For over 100 years, Montana has had an electoral system that preserves the integrity of the political process, encourages full participation and safeguards against corruption,” state Attorney General Steve Bullock said in a statement after the ruling, adding, “the [Montana] Supreme Court’s decision upholds that system and is truly a victory for all Montanans.”

 Montana Supreme Court

Of course it will be appealed.

Besides state by state fights and the long road to a Constitutional amendment, President Obama could issue an Executive Order.  He could direct that any company that gets any federal money has to disclose its political contributions.  Remember that corporations are people.  People who give money have to say they are citizens and who employs them.  It makes sense that corporations have to make some disclosures also.  Steven Rosenfeld writing in AlterNet thinks this is a possibility.

“It’s simple—any company that is paid with taxpayer dollars should be required to disclose political contributions,” said Rep. Anna Eshoo, D-Calif., who has pushed for the White House to issue the order. “With public dollars come public responsibilities, and I hope President Obama will issue his executive order right away.”

The order, if issued, would likely be the only campaign finance initiative to emerge from Washington this year as nothing is expected from Congress. It would take effect after the Federal Acquisition Regulatory Council adopts new disclosure rules. That could come as the 2012 election season moves beyond the primaries and it would offer a new way to see who is behind the newest independent groups spending millions on political attack ads.

…

Spending on federal contracts was $541 billion in 2010, which was about 4 percent of the gross domestic product, according to the Congressional Research Service, and almost 15 percent of the federal budget. The top 100 contractors are some of America’s biggest firms, and include support services for the military overseas, weapons makers, computer companies, telecommunication firms and other service providers. Companies that could fall under the disclosure order employ about 22 percent of the domestic workforce, CRS said. 

When the possibility of an executive order was last floated, Congressional Republicans and the Chamber of Commerce rose up in arms.  Maybe now that they see the distortion money is causing in the Republican primaries, the Congressional Republicans, at least, will change their tune.  Given the growing awareness of Super PAC’s through the sheer volume of advertising being unleashed in South Carolina, the average citizen may well decide to support measures to mitigated their influence.