Thursday, June 18, 2015
Although the case is called Obergefell v Hodges (an Ohio case), there are actually four cases involved: Obergefell v Hodges (Ohio), Tanco v Haslam (Tennessee), Bourke v. Beshear (Kentucky) and DeBoer v Snyder (Michigan). These four cases are from the four states that comprise the 6th Circuit, the only federal circuit court that has ruled against finding a right to same-sex marriage.
Contrary to popular understanding, Obergefell, Tanco, and Bourke do not directly address the question of whether states must permit same-sex marriage; all three are cases where a valid same-sex marriage was performed in another state, and the plaintiffs are suing to have their marriages recognized in their new home states. Only DeBoer raises the issue of same-sex marriage within their home state Michigan, and even that case is a little tortured because the original suit was brought against a Michigan law forbidding adoption by same-sex couples, not the actual marriage statute; the complaint was later amended to address the issue of same-sex marriage in Michigan.
With that as background, the Justices have a wide variety of choices open to them. I present them from the narrowest to the broadest possible rulings:
1) Full Faith & Credit: SCOTUS could address the very narrow issue as to whether or not a state that prohibits same-sex marriage must recognize valid same-sex marriages performed elsewhere. The precedents are somewhat divided here: interracial marriages must be recognized across state boundaries, but other marriages – such as that between cousins (which are permitted in some states, but not others) or between young people (state marriage laws vary, some permitting 16 year olds to marry, while one requires an age of 19) have been decidedly inconsistent. In a narrow ruling, the suits would be decided under the Full Faith & Credit Clause of the Constitution. Even if the couples win, it would not require the states in the 6th Circuit to legalize same-sex marriage: it would only require them to recognize valid marriages performed elsewhere. This is the least likely scenario (but it is possible) and would happen only if Justice Kennedy felt it necessary to ‘slow down” the march toward GLBT equality. A win, but a disappointment, and the battle continues.
2) Gender Bias. Raised as a possibility by Justice Roberts, this approach would apply the existing law that outlaws discrimination based on gender without a compelling state interest. In oral arguments, Roberts asked, “If Sue can marry Tom but John can not marry Tom, isn’t this a simple case of gender bias?" This has several advantages: it would effectively legalize same-sex marriage throughout the US, while creating no new law or precedent; it is also a way for the conservatives to further the issue of same-sex marriage without specifying specific “gay” rights. This approach would probably have a decisive majority of 6-3, or even 7-2, with Roberts (and possibly Alito) joining in the majority. Since this is basic existing law, gender discrimination, no new law, no new rights or ‘protected’ status for gays would be granted. This could be 6-3 or even 7-2, which would add a sense of legitimacy to the court’s ruling, and would be the 'compromise' approach in an effort to gain the widest acceptance of the decision. To me, this is a very possible outcome.
3) Equal Protection Clause. This would immediately result in legal same-sex marriage across the country, and, by applying it to gays and lesbians, would create a new application of this clause. This approach has the advantage of a clear statement concerning GLBT marriage rights, but would be more controversial than choice #2 above; it would likely be a 5-4 (possibly 6-3) decision. This is the outcome most LGBT groups are looking for.
4) Heightened Scrutiny/Protected Class. This would be the most far-reaching approach, and would affect not only marriage, but every law in every state that discriminates against gays and lesbians (such as employment and job termination, adoption, etc). Under current US law, it IS legal to discriminate between groups if the government has a rational basis. So, for instance, a state may pass a law requiring 7 years of school for doctor licensing, 5 for dentists, and 8 for anesthesiologists if they so choose. This is the standard the 6th Circuit applied to the state laws in Michigan, Ohio, Tennessee, and Kentucky. However, if a group of people is found to have been the subject of ‘animus’ (hatred) resulting in discriminatory laws, then the government must go beyond a mere rational basis; they must prove a “compelling state interest” in order to discriminate. This is a very high standard, and laws almost never meet it. If the Court decides that gays and lesbians are to be considered a protected class, there are several ramifications: first, nothing might happen initially: the Court could send all four cases back to the 6th Circuit for a re-hearing under the new standard. Justice delayed. However, in the long-term, this would affect single every law in the nation that discriminates against gays and lesbians. It is the most sweeping choice; gays would win the most rights for the long term, and the decision (like Roe v Wade) would also generate the most controversy. It is highly doubtful that this could be anything better than a 5-4 vote…and in fact, somewhat unlikely, Justice Kennedy would need to go further out on a limb than he ever has to make this happen. the dissenting opinion would likely be vicious, and conservative political groups would have the most ammunition against the court.
Of course, the Supreme Court often surprises…and often the majority vote is fractured into majority and concurring and dissenting opinions, so elements of all of the above may actually be part of a very complicated decision.
Sunday, July 06, 2014
If you support the right to advertise contraception, even if it ‘offends’ some people; if you believe that newspapers need to be able to report on corruption in government; and if you think that big banks need to be prosecuted when they conspire to manipulate currency and commodity prices – then thank the concept of Corporate Personhood.
In the wake of the Citizens United and Hobby Lobby decisions, many people are just coming to see that corporations are often treated as ‘persons’ under the law, and are upset about it; many believe it’s an invention of a runaway, pro-corporate court.
But nothing could be further from the truth. The concept of Corporate Personhood – and of corporate rights under the Constitution – is as old as our Republic itself. Having grown weary of trying to argue this point over and over in limited space on Facebook, I decided to put my thoughts into one longer blog post, and stroll through some of the critically important background relating to corporate personhood.
1. Freedom of the Press – Surely the founding fathers understood, when they penned that “Congress shall make no law…abridging the freedom..of the press” (First Amendment) that they meant newspapers and corporate media, and not just individual reporters. Indeed, two of the most important decisions in this century protecting a free press protected a corporate entity: The New York Times.
In 1964, the New York Times claimed that the arrest of Rev. Martin Luther King, Jr. for perjury in Montgomery, Ala., was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. In response, Montgomery city commissioner L.B. Sullivan filed a libel action against the newspaper as a corporation. The Court ruled, in New York Times Co. v. Sullivan, that even though some of the newspaper’s statements were in fact false, that the corporation was protected by the First Amendment.
Seven years later, a second blockbuster case arose involving the NY Times: New York Times Co. vs. United States.
Yes, the Corporation had rights under the Constitution, even as against government arguments of national security.
2. Freedom of Speech: “Congress shall make no law…abridging the freedom of speech.”
In the 1970s, New York State enacted a law prohibiting anyone other than a licensed pharmacist from distributing nonprescription contraceptives to persons 16 years of age or over, prohibiting the distribution of nonprescription contraceptives by any adult to minors under 16 years of age, and prohibiting anyone, including licensed pharmacists, from advertising or displaying contraceptives.
Population Services International was a North Carolina corporation that distributed birth control knowledge and services. The corporation sold and advertised contraceptives to New Yorkers primarily through mail-order retail sale of nonmedical contraceptive devices, which was a violation of the New York law.
In Carey v. Population Services International, 431 U.S. 678 (1977), the Supreme Court held that the law was unconstitutional:
3. The Fourth Amendment to the United States Constitution provides that:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
For almost 100 years, this right of “the people” has been extended to corporations.
In 1924, the US Federal Trade Commission – acting on its own - demanded internal documents and private communications from the American Tobacco Co., and denied that any warrant or cause was needed. In FTC v. American Tobacco Co. - 264 U.S. 298 (1924), the Court held,
“A governmental fishing expedition into the papers of a private corporation, on the possibility that they may disclose evidence of crime, is so contrary to first principles of justice, if not defiant of the Fourth Amendment, that an intention to grant [that] power to a[n]agency will not be attributed to Congress unless expressed in most explicit language…We cannot attribute to Congress an intent to defy the Fourth Amendment, or even to come so near to doing so as to raise a serious question of constitutional law.”
And so yes, your desk and office and items in your workplace are subject to the same protections that you have elsewhere…because 4th amendment rights have been bestowed on businesses as well.
5. Double Jeopardy – most of us growing up watching police dramas know that you can not be tried for the same crime twice once you are acquitted. It is the 5th Amendment that offers us that protection:
[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . .
And yet, this too has always been seen as applying to corporations.
In 1977, the Martin Linen Supply Company was brought up on charges for collusion, and after a trial by jury, acquitted. The US Government sought to bring the same charges again, and in a unanimous decision, the Supreme Court held that the right against double jeopardy clearly applied to the company, and the suit was tossed. (United States v. Martin Linen Supply Co, 430 U.S. 564 (1977).
6. Due Process and Equal Protection – Two places in the Constitution address these rights.
The 5th Amendment provides:
[N] or shall any person . . . be deprived of life, liberty, or property, without due process of law . . . , and
Section One of the 14th Amendment provides:
[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . .
In general, these two clauses require that laws be transparent and equitably enforced by both the federal government and state governments. A law must be clear, fair, and have a presumption of innocence to comply with procedural due process; all have a right to a fair and public trial conducted in a competent manner, the right to be present at the trial, and the right to an impartial jury; Taxes may only be taken for public purposes, property may be taken by the government only for public purposes, and owners of taken property must be fairly compensated .
The 14th Amendment was adopted after the Civil War, and even though it clearly states ‘person,’ the same generation that adopted the amendment understood it to apply to corporations. In Santa Clara County v. Southern Pacific Railroad – 118 U.S. 394 (1886), Chief Justice Morrison Waite began oral arguments on a case by stating,
"The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."
In determining the meaning of any Act of Congress, unless the context indicates otherwise—
words importing the singular include and apply to several persons, parties, or things;
words importing the plural include the singular;
words importing the masculine gender include the feminine as well;
words used in the present tense include the future as well as the present;
the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals
The notion of Corporate Personhood has been supported by almost every provision of American Constitutional Law and legal jurisprudence, and has been since our founding. You may not like some of the decisions that rely on that concept, but, over the course of American history, the concept has carried out what the Constitution was designed to do: enhance the rights of private entities, of whatever make-up, and restrict the power of government.