March 11, 2013
More amicus brief in the Prop. 8 and DOMA cases
Following up on Michael P.'s post, a few days ago, about the brief that Doug Laycock, Marc Stern, and our own Tom Berg did in Perry and Windsor, here is an update from Ryan Anderson on the array of amicus briefs that have been filed urging the Court to uphold both Prop. 8 and DOMA. One of those briefs was co-authored by our own Robert George.
Relatedly, a friend passed on this short news (??) story, "Justice Kennedy Notes Power Shift to High Court." A bit:
Justice Anthony Kennedy says he is concerned that the U.S. Supreme Court is increasingly the venue for deciding politically charged issues such as gay marriage, health care and immigration.
The 76-year-old associate justice said Wednesday that major policies in a democracy should not depend "on what nine unelected people from a narrow legal background have to say."
This is the same Justice Kennedy who voted to strike down all of the Affordable Care Act?
Posted by: Michael Perry | Mar 11, 2013 1:54:51 PM
Indeed. Self-awareness is, now as always, elusive.
Posted by: Rick Garnett | Mar 11, 2013 2:01:39 PM
Though, of course, he didn't vote to strike down "all" of the ACA, most of which was not at issue in the cases last June.
Posted by: Rick Garnett | Mar 11, 2013 2:02:45 PM
Hi Professor Garnett,
I hope all has been well with you and I forgot to tell you that I enjoyed your segment with the gentleman from Emory University on Talk of the Nation a couple of weeks ago.
I actually agree with Justice Kennedy's observation in that these problems should be decided, as much as possible, in the legislative arenas of the states. Isn't that one of the (many) criticisms against Roe Vs. Wade is that it was an ovverreach in that it took away the power of the states regarding abortion legislation? And now we have folks like Professor George who seem to say that Federal power is o.k. when it regards marriage but not o.k. regarding abortion? I guess I ask this because I think that abortion, same sex marriage and other social issues should be best left at the state level. You can't force Mississippi into New York, California into Michigan or even Michigan into Indiana when you have 50 states as different as ours.
Also, regarding the ACA (and this could be my legal ignornance speaking) my understanding was that the striking down of the individual mandate would have taken down the ACA as a whole. That was my understanding following the many news reports on this issue or would that have been the media being inaccurate (again!)?
Posted by: Edward Dougherty | Mar 11, 2013 4:01:09 PM
Dear Ed -- it certainly would have undermined a lot of the ACA had the mandate been invalidated. But all kinds of things -- including the more popular things, like keeping kids on parents' insurance until 26 -- were not on the table.
In terms of your middle paragraph, I think there is a distinction between saying (as the Court is being asked to do by some) "every state is required by the Constitution to extend marriage to same-sex couples" and saying (as DOMA's defenders do) "the federal government is allowed to define, for its own purposes, what it will recognize as marriage). Saying the letter does not necessarily undermine the ability of states, "at the state level", to move to SSM. I don't understand Prof. George to be saying that the Constitution *requires* a single definition of marriage, applicable at both the state and national levels.
Posted by: Rick Garnett | Mar 11, 2013 4:06:32 PM
The four-justice dissenting opinion Justice Kennedy joined in the ACA case did actually argue that the entire ACA should be struck down, since they viewed it as inextricably linked to the mandate provision those justices found constitutionally invalid.
Posted by: JHW | Mar 11, 2013 4:32:46 PM
JHW -- I stand corrected!
Posted by: Rick Garnett | Mar 11, 2013 5:03:19 PM
Professor Garnett, I suppose one could argue that it is a self evident truth that a human person can only conceive a human person, and that only a man and woman can exist in relationship as husband and wife, and thus the personal and relational essence of the human person, is not a matter of opinion.
Posted by: N.D. | Mar 11, 2013 7:02:34 PM
I think Rick was basically right the first time in his response to Michael. Justice Kennedy was only voting to invalidate the individual mandate, and on the severability issue. But severability is not the same thing as invalidating the entire statute as such. Severability is an action that is deferential to democratically elected bodies, not disrespectful to them, because it assumes that if Congress apparently would not have passed the bill without the unconstitutional section, the Court should not do it in Congress' stead by a line-item veto. More importantly, nothing from Kennedy's vote would have prevented Congress from enacting PPACA again minus that one singular provision of the individual mandate. So Justice Kennedy was not substituting his policy will for the will of Congress. He was indeed focused on one specific measure that violates the constitution's limits on federal authority. Michael seems to suggest that one cannot oppose nine unelected lawyers making major policy decisions in a democracy, if one also believes in judicial review for constitutionality. Though liberals like to claim this is a contradiction, it is clearly not. People can believe that the constitution places some distinct areas off limits, and also believe that most everything else is a policy decision left to the democratic process not to judges. It is liberals, with their view of the constitution as a living evolving document, who would have trouble reconciling these two views of the judicial role.
Posted by: Matt Bowman | Mar 12, 2013 2:31:38 PM
Thanks, Matt. I stand un-corrected. =-)
Posted by: Rick Garnett | Mar 12, 2013 2:34:32 PM
It takes a very self-aware person to stand, then stand corrected, and finally to stand uncorrected. :)
Litigants are always going to bring constitutional challenges to legislative enactments, so shouldn't Justice Kennedy be preaching to his brother and sister justices about not granting cert? Perhaps that is his intended audience.
Posted by: Bill Collier | Mar 12, 2013 3:22:38 PM
If Michael had said, "Hey, Rick. This is the same Justice Kennedy who wrote the mystery passage" he would have a point. But then, in Casey, Kennedy went ahead and upheld most of the democratically enacted abortion restrictions anyway.
Posted by: Matt Bowman | Mar 12, 2013 4:24:28 PM
Let's not lose sight of the important questions: what does Charles Reid think about Anthony Kennedy?
Posted by: Mike | Mar 12, 2013 5:44:03 PM
Regarding the "mystery passage" there is a difference between recognizing a sovereign God and a sovereign god, and that difference makes all the difference.
Posted by: N.D. | Mar 13, 2013 10:09:16 AM
Thanks for your response! I guess (and I'm speaking as the layman that I am) I would have a hard time seeing how DOMA does still not eclipse state laws, especially when it might come to military personnel, for example. Suppose you have someone in a same-sex marriage living in New York and they are also a member of the armed forces. His/her partner would be able to inherit his/her property should that person pass but the federal government would also not be required to allow the military benefits to pass on to the surviving partner? Could that also be used to deny the benefits at the state level, using DOMA?
I actually don't disagree with what you said in your first post. And I actually think that true states rights would be a very nice thing, keeping in conjecution with the Tenth Amendment, on issues such as abortion, SSM and embyroynic stem cell research. However, I really think that one is a federalist (or not a federalist) or someone who beleives that the courts should not make policy is dependent on the issue at hand. This was brought to mind when I heard Justice Scalia bemoaning the fact that the Voting Rights Act was almost untouchable by the courts because it had recently been renewed with a 98-0 vote in Congress. Certainly, unjust laws should not be kept untouched by the courts (Brown vs. Board of Education) as an example but I have a hard time beliving that the same forces that beleive that democratically enacted restrictions on abortion at the state level should be left untouched by the courts would be so sanguine regarding those same state legislatures passing laws allowing same sex marriage. Same thing for the folks last year who were hoping for the repeal of the individual mandate, forgetting that it was something done by our legislators who are supposed to do just that, legislate.
Posted by: Edward Dougherty | Mar 13, 2013 11:43:19 AM
Edward, regardless of location, a just Law is a Law that is grounded in truth, whereas an unjust Law is a Law that is based upon a false pretense.
Posted by: N.D. | Mar 13, 2013 6:24:17 PM