Yesterday, President Obama hosted members of GLBT rights organizations at the White House. Formally, the meeting commemorated "LGBT Pride Month." Underneath the surface, however, the meeting served a different purpose. Obama convened the gathering in order to alleviate growing anxiety among GLBT organizations concerning his commitment to gay rights.
Although Obama promised to seek the repeal of the Defense of Marriage Act (DOMA) and Don't Ask, Don't Tell, the military continues to discharge personnel based solely on sexual orientation, and the Department of Justice recently filed a brief that defends the constitutionality of DOMA. The government's defense of DOMA led to stinging criticism of President Obama by many prominent GLBT rights advocates.
[Note: A previous blog entry on Dissenting Justice analyzes the political rifts the brief caused. This essay and a subsequent one examine the legal content of the brief.]
DOMA 101
DOMA contains two major provisions. One section of the statute declares that states do not have to recognize same-sex marriages that other states consider legitimate. This part of the law purports to authorize states not to extend "full faith and credit" to same-sex marriages.
The other important section of DOMA adopts a heterosexual definition of "marriage" for federal programs. This part of the law denies same-sex couples any benefit (or obligation) that federal law extends to married couples, such as health care, joint-tax filing, etc.
The Brief
The government's brief argues that DOMA is constitutional in all respects. Surprisingly, the full faith and credit arguments have received the heaviest criticism -- even though this particular part of the statute is not really the most damaging to same-sex married couples. In the absence of DOMA, states that disapprove of same-sex marriage would probably still decline to recognize these marriages, which would lead to the same type of litigation that DOMA has already caused. Furthermore, it is likely that the Supreme Court -- not Congress -- will probably have the final say on what the Full Faith and Credit Clause requires of states in this setting.
The denial of federal benefits, however, is solely within the control of the federal government. According to the President's own previous statements, DOMA denies over 1,100 benefits to same-sex married couples. Even if individual states recognize same-sex marriages, DOMA still makes those marriages meaningless for purposes of federal law.
Standard Full Faith and Credit Analysis or Equating Same-Sex Marriage and Incest?
The Constitution requires states to give "Full Faith and Credit. . .to the public Acts, Records, and judicial Proceedings of every other State. . . ." Based largely on the Full Faith and Credit Clause, states traditionally have recognized marriages performed in other states.
The government's principal argument in defense of DOMA's full faith and credit provision contends that courts have allowed states to deny recognition of marriages from other states that violate their own "public policy." The relevance of the public policy exception to same-sex marriage has received an enormous amount of attention from legal scholars. Furthermore, the government's discussion of the exception represents a fairly routine way of analyzing the legal issues presented by the Full Faith and Credit Clause.
Despite its unexceptional nature, this section of the brief has inflamed many GLBT advocates because the Department of Justice cites to a series of cases that apply the public policy exception and allow states to deny recognition of certain marriages. These cases include an incestuous marriage between an uncle and his niece, a marriage involving a 16-year-old, and a marriage between first cousins.
John Aravosis at Americablog wrote a very critical analysis of this part of the brief which makes the following observations: "Holy cow. Obama invoked incest and people marrying children. . . .Then in the next paragraph, they argue that the incest and child rape cases therefore make DOMA constitutional. . . ."
These arguments, however, severely misrepresent the content of the brief. Certainly, the precedent deal with incest and age requirements for marriage, but these cases merely support the proposition that states can object to marriages that contravene their own public policy. They do not, however, turn on the general morality or desirability of the particular marriages, which were in fact legal in the "home" states. Instead, the cases conclude that where a public policy conflict exists, states can deny recognition without violating the Constitution. Finally, the brief never equates same-sex marriage with incest or "child rape" -- neither explicitly or implicitly.
These cases do not necessarily justify the nonrecognition of same-sex marriage by states, but they also do not substantiate the deepest public criticism of the brief by GLBT advocates -- that the Department of Justice brief compares same-sex marriage to incest and child rape. This argument is simply wrong.
Other scholars who advocate GLBT rights have taken a similar view. Nan Hunter, a law professor at Georgetown University Law Center and a longterm proponent of GLBT rights, describes the arguments by Aravosis and many other critics as "irresponsible attacks." Also, Chris Geidner, author of Law Dork, wrote an extensive essay that responds to the distortions Aravosis made and continues to make.
I enjoy reading Americablog, and have previously cited to it. I abhor and have criticized the homophobic linkage of same-sex marriage with incest and pedophilia. I was also one of the first bloggers to question Obama's commitment to GLBT rights, which I continue to do. Nevertheless, the DOMA brief, though awful in many respects, does not equate same-sex marriage with incest or child molestation.
Concluding Thoughts
Although many pro-GLBT advocates have unfairly criticized the Obama administration's defense of DOMA's full faith and credit provision, they are generally correct in condemning the government's argument that DOMA does not deny equal protection to same-sex married couples. In fact, if courts accept the equal protection analysis in the DOMA brief, this would represent a major setback for GLBT rights and would have negative implications beyond DOMA.
Accordingly, the Obama administration's equal protection position absolutely conflicts with his campaign promises -- although during yesterday's meeting, he downplayed any inherent conflict between his defense of DOMA and his "commitment to reversing this law." Obama's words, however, do not stand up to honest scrutiny. Alas, in the interest of space and time, I must defer my analysis of the equal protection arguments to another day. Stay tuned.
Showing posts with label equal protection. Show all posts
Showing posts with label equal protection. Show all posts
Tuesday, June 30, 2009
Wednesday, June 24, 2009
Republicans' Latest "New" Strategy on Sotomayor Is Another Loser
After initially describing Judge Sonia Sotomayor as a racist, intellectual lightweight, and a judicial fireball, Republicans have struggled to find a consistent and workable strategy to oppose her without causing serious political damage to the GOP. Opinion polls continue to show that a majority of the public supports Sotomayor's nomination to the Supreme Court. More ominously for Republicans, polls also find that Latinos overwhelmingly support Sotomayor's prospective appointment.
Moreover, assuming the accuracy of a recent Daily Kos/Research 2000 poll, Latino support for the GOP has declined from an already abysmal level since conservatives began attacking Sotomayor. The poll indicates that only blacks have a lower opinion of the Republican Party than Latinos. Just 3% of blacks and 8% of Latinos view the party favorably, while 31% of whites hold a favorable opinion of the GOP. If the situation does not improve for Republicans, Obama will win the presidency again, and Congressional Democrats will perform well in midterm elections.
The Republicans' Evolving "Sonia Strategy"
Because the Republicans' early attacks on Sotomayor failed, they have repeatedly attempted to retool their approaches. For example, Senate Republicans have distanced themselves from statements by conservatives, like Rush Limbaugh and Newt Gingrich, which described Sotomayor as a racist. Some of them have also described personal meetings with Sotomayor in positive terms. Furthermore, several Senate Republicans have emphasized the need to scrutinize her judicial record, rather than focusing on snippets of text from speeches she has delivered.
Now, with Sotomayor's confirmation hearings scheduled to begin on July 13, Republicans have possibly finalized their strategy. According to the Associated Press, Republicans will question Sotomayor regarding her "commitment" to the Second Amendment, property rights, and equal protection. While a focus on legal issues would represent an improvement over earlier discourse surrounding Sotomayor, this tactic will likely fail to raise any serious questions regarding Sotomayor's fitness for the Supreme Court or any major political opposition to her nomination.
Sotomayor's Judicial Record Does Not Warrant Opposition to Her Nomination
The new Republican strategy will likely fail because Sotomayor's judicial record does not warrant opposition to her nomination. Sotomayor has served as a federal judge without controversy for fifteen years. If she were an incompetent ideologue who did not care about the Constitution, a public record documenting this narrative would already exist. Accordingly, Republicans will have to make strained arguments as they try to raise questions about Sotomayor's commitment to the Constitution (which is an ambiguous concept).
Furthermore, the specific issues that Republicans have isolated as potentially raising questions about Sotomayor (the right to bear arms, property rights, and equal protection) do not present any real problems when viewed with intellectual honesty and nonpartisanship.
Specific Issue: Right to Bear Arms
Conservatives have already attempted to portray Sotomayor as a judge who does not respect the right to bear arms. They specifically cite an opinion issued by a 3-judge panel of the Second Circuit (Sotomayor sat on the panel) which concludes that the Second Amendment does not create an "individual" right to bear arms, but that it empowers "states" to establish militias. Although conservatives and pro-gun organizations and individuals oppose this conclusion, legal historians, judges, and legal scholars have debated this specific question for over a century.
Last year, the Supreme Court finally resolved this debate with its ruling in District of Columbia v. Heller. In a very divided, 5-4 opinion, the Court found that the Second Amendment creates an "individual" (rather than a "state") right. Nevertheless, the fact that four sitting justices on the Supreme Court reached the same conclusion as the Second Circuit panel means that Sotomayor's acceptance of the state right position cannot make her unfit for a position on the Supreme Court.
Subsequent to the Heller decision, another 3-judge panel of the Second Circuit, which included Sotomayor, held that the Second Amendment only constrains the federal government, not state governments, and that outside of the Second Amendment, the Constitution does not secure a "fundamental right" to bear arms. Conservatives have engaged in extreme distortion and hypocrisy in their critiques of this ruling.
It is abundantly clear that the specific liberty interests contained in the Bill of Rights were created to limit the federal government -- not the states. This has been the uninterrupted doctrine of the Supreme Court since the 1833 ruling in Barron v. Baltimore. Also, the text of the Bill of Rights supports this conclusion. The First Amendment, for example, explicitly prohibits "Congress" (not the states) from impairing freedom of speech and religion. Furthermore, the Bill of Rights was proposed and ratified because anti-federalists feared that the proposed Constitution, which would significantly expand federal power, would permit the national government to abuse individual liberty. The Bill of Rights served as a political compromise designed to secure ratification of the Constitution in light of strong dissent in several states.
Despite this clear history -- and conservative rhetoric about the virtues of following original intent -- Sotomayor's opponents have criticized her for agreeing that the Second Amendment only constrains the national government. The Supreme Court has, on a case by case basis, concluded that many of the rights contained in the Bill of Rights are "incorporated" by the Due Process Clause of the Fourteenth Amendment -- which makes them enforceable against the states. Neither the text nor the history surrounding the Fourteenth Amendment, however, supports this conclusion. Also, most of the Supreme Court rulings that expanded rights through incorporation were issued by the Warren Court, which many conservatives believe symbolizes the horrors of "liberal" "judicial activism." Nevertheless, conservatives fault Sotomayor for declining to emulate the Warren Court and conclude that the Second Amendment is an incorporated right.
Conservative opposition to the Second Circuit ruling is even more problematic in light of the fact that it strictly follows existing Supreme Court precedent which holds that the Second Amendment is not incorporated. Although this case law is dated, it is still "good law." Finally, a panel of three well respected conservative judges in the Seventh Circuit recently followed the lead of the Second Circuit and refused to hold that the Second Amendment is incorporated. The conservative Seventh Circuit ruling specifically cites the Second Circuit decision that conservatives have sued to brand Sotomayor as a dangerous opponent of gun rights.
Remaining Issues and the "Real Deal"
The other issues that Republicans plan to use in their "Sonia Strategy" have been dissected elsewhere. The constitutional law blog Text and History, for example, offers an erudite two-part analysis that powerfully rebuts conservative efforts to portray Sotomayor as hostile to property rights. Many other blogs, including Dissenting Justice, have addressed Sotomayor's case law and personal opinions regarding race and sex.
Despite the foregoing legal analysis, politics probably explains better than anything else why the Republicans' latest Sonia Strategy will not work. Democrats control the Senate. The public supports Sotomayor. Senate Democrats will support Obama on this issue. Barring any unexpected developments, this case is almost closed.
For an extensive listing of links to commentary regarding Sotomayor on Dissenting Justice, CLICK HERE.
Moreover, assuming the accuracy of a recent Daily Kos/Research 2000 poll, Latino support for the GOP has declined from an already abysmal level since conservatives began attacking Sotomayor. The poll indicates that only blacks have a lower opinion of the Republican Party than Latinos. Just 3% of blacks and 8% of Latinos view the party favorably, while 31% of whites hold a favorable opinion of the GOP. If the situation does not improve for Republicans, Obama will win the presidency again, and Congressional Democrats will perform well in midterm elections.
The Republicans' Evolving "Sonia Strategy"
Because the Republicans' early attacks on Sotomayor failed, they have repeatedly attempted to retool their approaches. For example, Senate Republicans have distanced themselves from statements by conservatives, like Rush Limbaugh and Newt Gingrich, which described Sotomayor as a racist. Some of them have also described personal meetings with Sotomayor in positive terms. Furthermore, several Senate Republicans have emphasized the need to scrutinize her judicial record, rather than focusing on snippets of text from speeches she has delivered.
Now, with Sotomayor's confirmation hearings scheduled to begin on July 13, Republicans have possibly finalized their strategy. According to the Associated Press, Republicans will question Sotomayor regarding her "commitment" to the Second Amendment, property rights, and equal protection. While a focus on legal issues would represent an improvement over earlier discourse surrounding Sotomayor, this tactic will likely fail to raise any serious questions regarding Sotomayor's fitness for the Supreme Court or any major political opposition to her nomination.
Sotomayor's Judicial Record Does Not Warrant Opposition to Her Nomination
The new Republican strategy will likely fail because Sotomayor's judicial record does not warrant opposition to her nomination. Sotomayor has served as a federal judge without controversy for fifteen years. If she were an incompetent ideologue who did not care about the Constitution, a public record documenting this narrative would already exist. Accordingly, Republicans will have to make strained arguments as they try to raise questions about Sotomayor's commitment to the Constitution (which is an ambiguous concept).
Furthermore, the specific issues that Republicans have isolated as potentially raising questions about Sotomayor (the right to bear arms, property rights, and equal protection) do not present any real problems when viewed with intellectual honesty and nonpartisanship.
Specific Issue: Right to Bear Arms
Conservatives have already attempted to portray Sotomayor as a judge who does not respect the right to bear arms. They specifically cite an opinion issued by a 3-judge panel of the Second Circuit (Sotomayor sat on the panel) which concludes that the Second Amendment does not create an "individual" right to bear arms, but that it empowers "states" to establish militias. Although conservatives and pro-gun organizations and individuals oppose this conclusion, legal historians, judges, and legal scholars have debated this specific question for over a century.
Last year, the Supreme Court finally resolved this debate with its ruling in District of Columbia v. Heller. In a very divided, 5-4 opinion, the Court found that the Second Amendment creates an "individual" (rather than a "state") right. Nevertheless, the fact that four sitting justices on the Supreme Court reached the same conclusion as the Second Circuit panel means that Sotomayor's acceptance of the state right position cannot make her unfit for a position on the Supreme Court.
Subsequent to the Heller decision, another 3-judge panel of the Second Circuit, which included Sotomayor, held that the Second Amendment only constrains the federal government, not state governments, and that outside of the Second Amendment, the Constitution does not secure a "fundamental right" to bear arms. Conservatives have engaged in extreme distortion and hypocrisy in their critiques of this ruling.
It is abundantly clear that the specific liberty interests contained in the Bill of Rights were created to limit the federal government -- not the states. This has been the uninterrupted doctrine of the Supreme Court since the 1833 ruling in Barron v. Baltimore. Also, the text of the Bill of Rights supports this conclusion. The First Amendment, for example, explicitly prohibits "Congress" (not the states) from impairing freedom of speech and religion. Furthermore, the Bill of Rights was proposed and ratified because anti-federalists feared that the proposed Constitution, which would significantly expand federal power, would permit the national government to abuse individual liberty. The Bill of Rights served as a political compromise designed to secure ratification of the Constitution in light of strong dissent in several states.
Despite this clear history -- and conservative rhetoric about the virtues of following original intent -- Sotomayor's opponents have criticized her for agreeing that the Second Amendment only constrains the national government. The Supreme Court has, on a case by case basis, concluded that many of the rights contained in the Bill of Rights are "incorporated" by the Due Process Clause of the Fourteenth Amendment -- which makes them enforceable against the states. Neither the text nor the history surrounding the Fourteenth Amendment, however, supports this conclusion. Also, most of the Supreme Court rulings that expanded rights through incorporation were issued by the Warren Court, which many conservatives believe symbolizes the horrors of "liberal" "judicial activism." Nevertheless, conservatives fault Sotomayor for declining to emulate the Warren Court and conclude that the Second Amendment is an incorporated right.
Conservative opposition to the Second Circuit ruling is even more problematic in light of the fact that it strictly follows existing Supreme Court precedent which holds that the Second Amendment is not incorporated. Although this case law is dated, it is still "good law." Finally, a panel of three well respected conservative judges in the Seventh Circuit recently followed the lead of the Second Circuit and refused to hold that the Second Amendment is incorporated. The conservative Seventh Circuit ruling specifically cites the Second Circuit decision that conservatives have sued to brand Sotomayor as a dangerous opponent of gun rights.
Remaining Issues and the "Real Deal"
The other issues that Republicans plan to use in their "Sonia Strategy" have been dissected elsewhere. The constitutional law blog Text and History, for example, offers an erudite two-part analysis that powerfully rebuts conservative efforts to portray Sotomayor as hostile to property rights. Many other blogs, including Dissenting Justice, have addressed Sotomayor's case law and personal opinions regarding race and sex.
Despite the foregoing legal analysis, politics probably explains better than anything else why the Republicans' latest Sonia Strategy will not work. Democrats control the Senate. The public supports Sotomayor. Senate Democrats will support Obama on this issue. Barring any unexpected developments, this case is almost closed.
For an extensive listing of links to commentary regarding Sotomayor on Dissenting Justice, CLICK HERE.
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