Thursday, August 27, 2015
Wednesday, August 12, 2015
Supreme Court of Ohio Board of Professional Conduct issues advisory opinion imposing duty on judges to perform same-sex marriages
The Board of Professional Conduct for Ohio lawyers and judges has issued an advisory opinion interpreting the relevant authorities within the Board's authority to prohibit judges from refusing to perform marriages for same-sex couples.
The weakness of the opinion's reasoning is evident near the outset, starting with the paragraph purporting to bring the issues addressed within the Board's jurisdiction:
In Ohio, municipal, county, and probate judges are specifically authorized by statute to perform civil marriage ceremonies. R.C. 1907.18(C), 1901.14(A)(1), 2101.27, and 3101.08. Whether judges are mandated or authorized by the Ohio Revised Code to perform civil marriages is a legal question and beyond the scope of the advisory opinion authority granted to the Board by the Supreme Court of Ohio. Gov. Bar R. V, Section 2(D), BPC Reg. 15(B)(1). 1 However, the General Assembly has granted judges the authority to perform marriages because of the unique public office that they hold. When a judge performs a civil marriage ceremony, the Board concludes that the judge is performing a judicial duty and thus is required to follow the Code of Judicial Conduct in the performance of that duty.
Notice how this trades on different meanings of "judicial duty" at different times. It starts by saying that judges are "authorized" by Ohio statute law to perform marriages. It then disclaims authority to decide whether Ohio statute law actually mandates judges to perform marriages, or instead simply authorizes them to do so (the position staked out in the first sentence). The opinion then says that Ohio statute law grants judges authority to perform civil marriages "because of the unique public office that they hold." And then the opinion brings the decision whether to perform a civil marriage within the scope of the Code of Judicial Conduct by asserting that the judge is performing a judicial duty when a judge performs a civil marriage ceremony. Notice, though, that these are two different moments in time. The decision whether to perform a civil marriage ceremony precedes the performance of a civil marriage ceremony. Although the opinion disclaims authority to decide whether judges are mandated or merely authorized to perform any marriages, the opinion ends up determining the judges are, indeed, mandated to perform certain marriages.
And this is just the beginning of the opinion. It gets worse when it goes far beyond the holding of Obergefell in concluding, for example, that "[a] judge may reasonably be perceived as having a personal bias or prejudice based on sexual orientation if he or she elects to perform opposite-sex marriages, but declines to perform same-sex marriages."
The opinion also reflects ignorance of the actual role of public opinion in the creation of new constitutional law these days when it brings in the requirement that judges "apply the law without regard to whether the law is 'popular or unpopular with the public, the media, government officials, or the judge’s friends or family.'" Can anyone say with a straight face that Justice Kennedy, the author of Obergefell v. Hodges, himself applied the law without regard to all these factors? Aside from judges' personal, moral, or religious beliefs about marriage, one good legal reason to avoid extending Obergefell beyond its holding is precisely to limit the damage done to the law when judges shape it to better conform with changed public opinion, as Justice Kennedy and his colleagues in the majority did in Obergefell.
Tuesday, July 7, 2015
From Justice Kennedy's opinion in Obergefell v. Hodges, additional evidence of "False Enlightenment at the Court"
The title of a new First Things article on Obergefell v. Hodges is "False Enlightenment at the Court." Its opening paragraph asserts that "[t]he basis of the decision is a claim to special enlightenment (we shall not say 'revelation') about the meaning and import of liberty ...."
That sounds close to correct, though I will go further and say that Justice Kennedy's opinion for the Court purports to be a revelation for the rest of us. In it, the five Justices in the majority claim to possess a new awareness and an improved understanding that enables them to carry out their judicial duty of responding to the petitioners' stories, and the petitioners' hopes, and the universal fear of loneliness (among other things), by enforcing the central meaning of a fundamental right that is now manifest in our basic charter. Behold:
- "[C]hanged understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations ...."
- "When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed."
- "Marriage responds to the universal fear that a lonely person might call out only to find no one there."
- "The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest."
- "The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era."
- "The reasons why marriage is a fundamental right became more clear and compelling from a full awareness and understanding of the hurt that resulted from laws barring interracial unions."
- "[I]n interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged."
- "Responding to a new awareness, the Court invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage."
- "It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality."
- "This [decades-long process of legislation, litigation, and debate] has led to an enhanced understanding of the issue--an understanding now reflected in the arguments now presented for resolution as a matter of constitutional law."
- "The Nation's courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter."
- "The petitioners' stories make clear the urgency of the issue they present to the Court."
- "Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions."
A current exhibition about the Supreme Court building calls it "America's Temple of Justice." If we take Justice Kennedy's language seriously--and we should since his opinion purports to supply the public justification for the Court's decision--Justice Kennedy apparently takes this temple idea literally. Sitting behind the Supreme Bench for almost thirty years now, he may have been gazing too intently at the West Wall Frieze opposite his judicial perch. Seeing himself in its story of Good versus Evil, he is not just a judge, but Justice herself, discerning and disseminating Divine Inspiration.
His goddess, of course, is Liberty.
Wednesday, July 1, 2015
A federal district court in Michigan yesterday dismissed the ACLU's "theological malpractice" lawsuit against the United States Conference of Catholic Bishops and current and former chairs of a Catholic hospital network. For background on the case of Means v. United States Conference of Catholic Bishops, see my earlier Mirror of Justice post (with links to other coverage).
The filing of this case made a big media splash; its dismissal, not so much. Compelling factual allegations are more interesting than careful dissection of a novel legal theory, I suppose.
The court concluded that it lacked personal jurisdiction over the USCCB and that plaintiff failed to state a claim upon which relief can be granted against the other defendants. There is some discussion of what the court describes as ecclesiastical abstention, which the court found would have applied to the elements of breach and proximate cause. But the plaintiff would have failed to state a claim upon which relief can be granted even in the absence of that doctrine. The court held that plaintiff failed to identify a legal duty owed plaintiff by the individual defendants. In the court's words, "Plaintiff has not sufficiently demonstrated that Michigan law recognizes a duty to a patient by a sponsor of a hospital network."
I am already seeing expressions of dismay and outrage in various quarters one would expect to see them. But the court's application of plain-vanilla legal principles seems unobjectionable. People who want to express their opinion should probably read the court's opinion first.
I wrote yesterday that the Supreme Court's Arizona redistricting-by-commission decision made good law bad. A court majority did this by redefining the word "Legislature" in the Constitution's "Elections Clause" to include a legislative process designed to bypass the legislature. This new and expanded understanding of "Legislature" may be better policy, considered purely as policy. But as law, the "Elections Clause" is worse than it was before, for it has lost some of the determinacy it previously had, which is one of the reasons it was included as written law to begin with.
Decisions like the Supreme Court's "Legislature"-redefinition decision raise the question of how to respond when bad things happen to good law.
One appropriate response is condemnation. Done persuasively, condemnation of bad decisions may decrease the likelihood of similarly bad decisions. And conscientious government officials should be open to fair legal criticism. Indeed, it is their duty to heed such criticism.
What about accepting the erroneous interpretation as law? Should we?
This raises a number of difficult questions for political prudence. The answers to some of those questions can be informed by correct legal analysis, although that will only take us so far. But here's a start.
The Supreme Court cannot change the Constitution. Like all other government officials, the Justices of the Supreme Court are under the law; they are its servants. The Constitution is their master; they are not our masters.
The Supreme Court can nevertheless change the law that judges of inferior courts are obligated to apply. The holdings of an opinion for the Court bind inferior judicial officials as a matter of vertical stare decisis. Even erroneous decisions create "new law" of a peculiar sort. This "case law" is not equivalent to the Constitution itself, even for judges of inferior courts. But it is law of a certain sort.
Like other courts, the Supreme Court can also render judgments and make legally binding orders. These judgments and orders also make law of a certain sort, in accordance with the law of judgments and the law of remedies. Included in the law of judgments, for example, are various rules of preclusion that prevent (or "preclude") the relitigation of finally decided matters.
All of this "new law" created by an erroneous Supreme Court decision is final in some respects, but not final in others. Precedents can be distinguished, narrowed, and even overturned; judgments can be re-opened; orders can be amended. There's law about how all that happens as well (though some of that law, such as that guiding judicial practice regarding precedents, is rather fuzzy).
Knowing the ways in which an erroneous Supreme Court decision is and is not law in various ways can help inform whether and how one accepts that decision as law.
Suppose you really like redistricting by commission but you think the Supreme Court's interpretation of "Legislature" to authorize it was legally wrong. Should you vote for an initiative that takes advantage of that erroneous interpretation to authorize redistricting by commission? That depends on much more than just the legal analysis provided thus far. You will be undermining constitutional self-government at least to some degree, but perhaps not much. And the resulting process will be good law of a certain sort. There is a lot of room for political judgment and discretion here.
What if you have taken an oath to uphold the Constitution (as I did, for example, when I was sworn into the bar)? Would voting for that initiative violate your oath? If so, then you shouldn't do it. But voting for an initiative that helps to solidify in practice an erroneous constitutional interpretation does not necessarily violate a voter's oath to the Constitution. We do not think that lawyers violate their oath to the Constitution when they help clients order their affairs in the wake an erroneous judgment in a constitutional case. After all, the judgment is law of a certain sort for that client. Why think differently about voters?
To say that it is permissible in certain circumstances to act on erroneous judicial interpretations of the Constitution is not to say that it is obligatory. Far from it. Some government officials have an obligation to treat these erroneous interpretations as law of a certain sort, as we have seen. But they also have an obligation to the Constitution itself. And they should not make that good law worse just because the Supreme Court has. Judges on inferior courts can distinguish and criticize; other officials (and voters) can adopt an opposite interpretation as a political rule. And in some circumstances--maybe even most--they and we should.
The law shapes and guides here, but does not fully determine what one ought to do when bad things happen to good law.
Tuesday, June 30, 2015
I had not been following the Arizona redistricting-by-commission case very closely, but I've been reading the Supreme Court's opinions from beginning to end the past couple of weeks (the joy!), and yesterday brought the Court's decision in that case. It is a very bad decision. I don't mean bad as a matter of policy; I don't know enough to have an informed opinion on that. But bad, very bad, as a matter of law.
The bad law exemplified by the case is what one might call adverb law--law about how to do law lawfully. The Justices in the majority adopted an approach to the text of the Constitution that defeats a central purpose for having a written Constitution--to determine and to fix the rules so that people can hold the government (and themselves) to those rules later.
The legal text at issue was the "Elections Clause" of the U.S. Constitution: "The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations." (emphasis added)
Arizona voters, acting via initiative, found a way to bypass redistricting by the Arizona legislature; they vested redistricting authority in an independent commission instead.
The Arizona legislature lodged the obvious legal objection: The Elections Clause says that redistricting is to be done "in each State by the legislature thereof," but the Arizona initiative places redistricting authority outside the state legislature.
The legislature lost. The same five-Justice majority that redefined civil marriage last Friday redefined "Legislature" yesterday. In an opinion for the Court by Justice Ginsburg, the Supreme Court held that redistricting by an independent commission counts as redistricting "by the Legislature" under the Elections Clause. Chief Justice Roberts wrote the main dissent, which interprets as well all the majority interprets as poorly.
While the willingness of one Justice to write and four others to sign on to loose legal analysis like the majority's is disheartening, a comparison of Justice Ginsburg's opinion for the Court with Chief Justice Roberts's dissent illustrates another virtue of a written Constitution: We can more easily identify when the Justices approve unlawful law by twisting our written Constitution than by operating outside the constitutional text entirely.
This is cold comfort, I know. But at least it provides the basis for warm condemnation.
So go, read the Chief's dissent. Don't be a chump.
Saturday, June 27, 2015
Three recommendations for religious reaction to the Supreme Court's legal redefinition of civil marriage
In thinking about the general topic of religious reactions to the Supreme Court's redefinition of marriage, I continue to find that the strongest religious reactions are among those evangelizing the five-Justice majority's decision as if it should be revelation for the rest of us. Consider, for example, this CNN report of a speech by Hillary Clinton in northern Virginia last night:
Clinton read the last paragraph of Justice Anthony Kennedy's opinion from the stage on Friday, ending with, "And to that I say, amen, thank you."
"This morning, love triumphed in the highest court in our land," Clinton said. "Equality triumphed, America triumphed."
There's more where this came from, of course, from the relighting of the White House to the rainbow-ization of corporate logos and profile pictures on social media. (And let's not forget the Supreme Court demonstrator proclaiming "Anthony Kennedy is My Spirit Animal." Or the reaction to the decision: "Cries of joy rang out when the decision was announced. A gay men's chorus began to sing.") Everyone wants to "spread the good news," it seems.
But that's not true. Not everyone thinks what the Supreme Court has done is legally permitted, much less legally compelled. So what about the rest of us, who take what comfort we can from the symbolism and the substance of the Chief Justice of the United States dissenting from the bench?
A few suggestions, in increasing specificity:
1. Pray. We all need grace to be prudent, temperate, just, and courageous, as well as faithful, hopeful, and charitable.
2. Insist that all in government act lawfully. People of faith must insist that our legislators and judges be people of the law rather than prophets of a false faith--whether in "progress" or in "history" or in a new understanding of "the central meaning of the fundamental right to marry."
3. Engage in concrete acts of self-government. Congress should pass legislation using its authority under Section 5 of the Fourteenth Amendment to ensure that marriage remains a two-person enterprise.
Friday, June 26, 2015
Justice Kennedy's opinion as a religious reaction to same-sex marriage, and President Obama on "justice that arrives like a thunderbolt"
A few weeks back, I agreed to participate in an AALS panel next January on "Religious Reactions to Same-Sex Marriage." So I've been thinking about and observing and reflecting on the phenomenon, and will continue to do so.
Reading Justice Kennedy's opinion in Obergefell v. Hodges, it seems to me that the opinion itself can be understood as a religious reaction to same-sex marriage. Among other things, it purports to remedy an injury of being rendered "strangers even in death."
The religious reactions I've seen so far have been from the opinion's enthusiastic adherents. President Obama, for example, has described this 5-4 ruling as bringing "justice that arrives like a thunderbolt."
At Above the Law, David Lat wrote yesterday "Why the Same-Sex Marriage Decision Will Likely Come Out Tomorrow." That's today, June 26.
Lat and others find in this speculation reason for excited anticipation. They should not, for the timing would further sharpen the perception that Justice Kennedy's amour-propre has played an outsized role in the Supreme Court's evaluation of same-sex marriage under federal law.
The speculation about June 26 as a day for "Big Gay Cases" (to use Lat's phrase) is based on the belief that Justice Kennedy has written an opinion for the Court requiring states to license and recognize same-sex marriages. Lat writes:
A June 26 hand-down of Obergefell would make that the day of decision for three of Justice Kennedy’s four Big Gay Cases — Lawrence, Windsor, and Obergefell (with Romer v. Evans, decided on May 20, 1996, as the only case not falling on June 26). And authorship of Obergefell would arguably make Justice Kennedy the single individual who has done more to advance gay rights in the United States than, well, anyone in history.
An astute observer of the Court corresponding with Lat points out that it appears unusual based on experience in recent years for the Court to schedule an opinion announcement for the Friday before the end of the Term. "There is no reason to break with character and issue a Friday decision," Craig Konnoth writes, "except to celebrate an anniversary." In an update, Lat notes that Justice Kennedy has "a sense of history and also a sense of drama, so if any justice would be attentive to anniversaries, it would be AMK."
All of this is highly speculative, as all involved acknowledge. And the final update on Lat's post quotes Eric Citron (a former Supreme Court clerk, current SCOTUSBlog commentator, and Supreme Court practitioner) with a strong formulation of the conventional wisdom about the timing of hand-downs. "The main determinant of when a case comes out is when it is ready; the Court barely considers other factors at all. And these matters are largely under the control of the Chief’s office, and I think it would be genuinely surprising, given all the things the Court is working on right now, if this kind of coincidence was in mind." I tend to agree with Citron. But Lat further comments "even if the decision on timing is ultimately up to Chief Justice Roberts, perhaps with input from the Reporter of Decisions, I can’t help thinking that the Chief would try to accommodate Justice Kennedy if AMK expressed a strong preference for June 26." And it is hard to disagree with that.
So, why would this timing be bad if deliberate? Justice is supposed to be blind. Judges should not try to create anniversaries of decisions of theirs that they would like to be celebrated. That is not how impartial judging operates. As John Finnis has written in the related context of criticizing Dworkinian moralism, "the horizon is ordinarily not the best focus for the judicial gaze."
I don't want to overstate the principle at work here. Judges may often properly have regard to the effect of timing on particular litigants. And this may even properly push them to work overtime to issue a decision more quickly. Consider the wrongfully convicted and imprisoned man now in possession of conclusive evidence exonerating him. The judicial system should work hard to end that injustice as soon as possible.
One might analogize that situation to same-sex marriage under the Constitution. Interpreting the Fourteenth Amendment to require State licensing and recognition of same-sex marriage, on this view, would be the correction of a historic injustice that cannot come fast enough. But that is not how Justice Kennedy and his colleagues have managed the issue thus far. A more accurate perception is the careful cultivation of public opinion, and concern to be on "the right side of history." Because these are not the actions of judges under the law, I hope this speculation of Above the Law is wrong.
Tuesday, June 23, 2015
Linda Greenhouse and Reva Siegel have a post at Balkinization that calls upon the Supreme Court to stay a Fifth Circuit decision refusing to enjoin various provisions of a Texas law regulating abortion clinics. "Casey and the Clinic Closings" concludes with this:
Casey has now been the law of the land longer than Roe itself. The moment has arrived for the Supreme Court to demonstrate its fidelity to the compromise it struck nearly a quarter-century ago. Women have actual, not politically manufactured, health concerns at stake. And dignity, too, is at stake: women's, the Supreme Court's, and the dignity of law itself.
A few points:
- Casey was a compromise, to be sure. But it's hard to imagine anything less un-law-of-the-land-like than that decision. The Constitution is the actual "law of the land"; "compromise" Supreme Court decisions are not. The reasoning of Supreme Court opinions provides a particular kind of law that inferior courts must make use of; but for the rest of us, the opinions of the Supreme Court are the opinions of the Supreme Court, and not "the law of the land."
- The Supreme Court owes fidelity to the Fourteenth Amendment ratified in 1868, not to a compromise that three of its nine Justices struck among themselves in 1992.
- There is nothing dignified about groveling to Justice Kennedy, however effective this may be now and then, and however necessary this may be for anyone who wants his vote. But that is, of course, exactly what Greenhouse and Siegel find themselves doing in "Casey and the Clinic Closings." When we do this (and I do mean "we," for I cannot exclude myself from the sometimes-groveling-to-Kennedy lawyer crowd), we undermine our own dignity.
Unlike the originator of Balkinization, neither Greenhouse nor Siegel professes constitutional originalism. But those who reject constitutional originalism often end up as originalists of a different sort. They simply choose a different part of our positive law to be originalist about. No questioning whether Casey was right (indeed, Greenhouse and Siegel say Casey "is not the opinion either of us would have written"), the job of the Supreme Court is to be faithful to that decision. At stake, they say, is "the dignity of law itself."
They're wrong about that much (thank goodness). How well they know their audience of one, we shall see.