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Doug NeJaime is Associate Professor of Law at Loyola Law School - Los Angeles. He teaches in the areas of Ethical Lawyering and Law & Sexuality.

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The unwillingness of California's Attorney General and governor to defend Proposition 8 - and the corresponding presence of Proposition 8 proponents as the amendment's defenders - has yielded a procedural mess. But with all the discussion of Proposition 8 proponents' impact on procedure, it is easy to overlook their significant impact on substance: With the actual supporters of the proposition replacing the increasingly pro-gay state as the law's defender, the explicit connection between sex and sexual orientation discrimination has surfaced.

When the California Attorney General defended California's (statutory) marriage restriction in the state litigation (In re Marriage Cases), he refused to rely on governmental interests related to procreation and dual-gender childrearing. As I have noted elsewhere, this refusal reflected the mainstreaming of a gay equality norm as both a political and legal matter. In the awkward position of defending the law without resort to its key substantive purposes, the Attorney General merely asked the court to defer to the voters' desire (as evidenced by Proposition 22) to preserve the traditional definition of marriage.

With the shift toward more federal litigation on gay rights issues, we have seen a similar trajectory in the arguments offered by the (increasingly pro-gay) government in defense of anti-gay laws. For instance, the Justice Department has refused to stand behind rationales related to procreation and childrearing when defending the Defense of Marriage Act (DOMA) in federal litigation in Massachusetts. Indeed, in arguing that "the government does not believe that DOMA can be justified by interests in ‘responsible procreation' or ‘child-rearing,' " Justice Department lawyers admitted that "children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents." When Judge Tauro found DOMA unconstitutional as applied to married same-sex couples in Massachusetts, he noted the government's unwillingness to stand behind DOMA's actual purposes and rejected the government's newly manufactured rationale, which had no substantive content and amounted to a wait-and-see approach to marriage equality.

In Perry v. Schwarzenegger, the federal litigation challenging Proposition 8, the California Attorney General resolved his earlier inconsistency (and unease) by moving wholeheartedly to the side of marriage equality and leaving no government lawyers to defend the amendment. Enter the Proposition 8 proponents as the party charged in the federal litigation with defending its constitutionality. Finally, the substantive reasons behind marriage restrictions get their day in court. The proponents urged Judge Walker to uphold Proposition 8 not merely based on deference to voter preferences and tradition, but also as part of the government's role in channeling procreation and childrearing into dual-gender, married households. Children, Proposition 8 proponents argued, need a mother and a father because mothers and fathers (wives and husbands, women and men) fulfill different and complementary roles. Through this lens, men function as breadwinners while women become homemakers and caretakers; men teach their children about ambition, hard work, and independence, while women nurture their children with love and encouragement. As Protect Marriage's Ron Prentice put it (in a statement that Judge Walker quoted in his opinion):

Children need the chance to have both mother love and father love . . . [M]oms and dads, male and female, complement each other. They don't bring to marriage and to a family the same natural set of skills and talents and abilities. They bring to children the blessing of both masculinity and femininity.

In this framework, preventing same-sex couples from marrying preserves the sex-differentiated roles that Proposition 8 proponents believe men and women should play in marriage and the family.

Marriage equality advocates have pointed out the connection between marriage restrictions and gender roles in earlier litigations. But state courts considering same-sex couples' right to marry have consistently rejected or neglected the way in which marriage restrictions rely on and perpetuate sex stereotypes that subordinate women. While disappointing, this hardly seems surprising; state officials defending the restrictions increasingly refuse to explicitly rely on gender norms, and arguments about sex stereotypes are often buried in amicus briefs.

But Proposition 8 proponents' direct role in the Perry litigation forced Judge Walker to fully consider the sex-based implications of Proposition 8. Arguments based on sex stereotypes now constituted part of the principal case put forward by the proposition's defenders. And where Proposition 8 supporters saw legitimate justifications for the amendment, Judge Walker saw impermissible sex stereotypes, concluding that "Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriage."

For all the confusion introduced by Proposition 8 proponents' role in the litigation, their presence has made one thing crystal clear: Laws that prohibit marriage for same-sex couples constitute just one part of a broader normative framework of the family that harms individuals based on both sex and sexual orientation.

A federal judge today declared California's ban on same-sex marriage unconstitutional, holding that it is not only a violation of the Fourteenth Amendment's equal protection clause, but also impermissibly burdens "the exercise of the fundamental right to marry."

"Plaintiffs do not seek recognition of a new right," U.S. District Chief Judge Vaughn R. Walker wrote in the 136-page decision. "To characterize plaintiffs' objective as ‘the right to same-sex marriage' would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy - namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages."

The decision continues:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that the opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

The decision is expected to be appealed to the U.S. Court of Appeals for the Ninth Circuit and then up to the Supreme Court, the Los Angeles Times reports.

The full opinion is available here.

 

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By Caroline Fredrickson, Executive Director, American Constitution Society for Law and Policy (ACS).

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In what may be an example of calculated distraction from things that matter, a gaggle of rightwing bloggers, precipitated by an article by Princeton University professor Robert P. George in the conservative magazine First Things, has decided to vent their fury at a small (4 inch) pocket Constitution published six years ago by the American Constitution Society because of what George claims are missing two words from Lincoln's Gettysburg address.

The publication, offered free to attendees at most ACS events, includes the U.S. Constitution and two other documents that provide important context for understanding our founding document: the Declaration of Independence and the Gettysburg Address. But rather than acknowledge the goal of the booklet -- to help ensure that Americans have ready access to these primary documents - George and his posse of rightwing bloggers baselessly finds a conspiracy afoot, suggesting, erroneously, that "The American Constitution Society had omitted Lincoln's reference to the United States as a nation under God from the address he gave at the dedication of the burial ground at Gettysburg."

Apparently, in his eagerness to find a conspiracy, George has chosen to either ignore or willfully distort the history of this important document. The truth is, five drafts of Lincoln's Gettysburg Address exist, and historians are uncertain about which one Lincoln actually read on the battlefield. Three included references to God and two did not. Which one was the most accurate is not and cannot be known for certain. George cites the recollections of several reporters of the time who stated that the president included the words "under God" in his remarks. Did President Lincoln improvise and add those words as he spoke? Perhaps! I wasn't at Gettysburg, so I can't be sure that George wasn't. As for the journalists' accounts, it would be interesting to read a history of the Civil War based solely on contemporaneous reports of journalists of the time, which would include countless conflicts, distortions, and inaccuracies. At the very least, honest scholars must acknowledge that wise people have differing views based on the available facts.

Even more disturbing (and clearly erroneous) is the claim that ACS deliberately manipulated the texts out of an alleged anti-God agenda of our organization. One need only open the first page of ACS's pocket publication and look at the first lines of the first document - the Declaration of Independence, to see very clear references to God and "the Creator." George simply ignored this fact, since it did not fit within his conclusion.

At a time when many conservative pundits and policymakers can only try to distract from the administration's efforts to address real problems, it is perhaps not surprising that some would try to refocus attention on such peripheral issues. Indeed, the hysteria over our pocket Constitution is reminiscent of debate over conservative "originalism," in which highly complicated matters from the past which are open to a variety of interpretations with considerable evidence for each get boiled down into tendentious little just-so stories about how everyone who has a different view of the evidence hates God and America.

The draft of the Gettysburg address included in our pocket Constitution is just that, one of Lincoln's drafts, word for word. Nothing crossed out, nothing redacted, and nothing hidden. George and his handful of fellow travelers know this, but they don't want to discuss or debate matters of dire seriousness to the nation.

[image via Wikimedia Commons]

 

The Constitutional Accountability Center (CAC) applauds the emerging Tea Party's claims to be concerned about the U.S. Constitution, but warns in a new Issue Brief that the movement's notion of the Constitution and its principles is deeply flawed.

In "Setting the Record Straight: The Tea Party and the Constitutional Powers of the Federal Government," CAC's Elizabeth Wydra and David Gans maintain that it is important that a "national conversation engage the real Constitution of the United States and not the ‘Constitution According to the Tea Party.'"

Wydra and Gans note that Tea Party leaders have been loudly arguing that the Constitution sharply limits the powers of the federal government and essentially sets up a "weak national government, incapable of addressing national problems like the health care crisis in America." The authors say the Tea Party's arguments of such a constitution do not "stand up to the test of text and history."

As noted in the Issue Brief, Tea Partiers and their supporters are bent out of shape over the recently enacted health care reform law, maintaining that the measure goes way beyond the powers delegated to the federal government by the Constitution.

Wydra and Gans write:

Tea Partiers declare that they want to go back to the ideas of the Constitution, but what they really want is to return to the Articles of Confederation. The Tea Party's principal claim that our country's Founders established a sharply limited, weak national government fits more with the failed, discarded Articles of Confederation than with the Founders' second and lasting attempt to craft a national charter, our Constitution.

...

The Articles of Confederation, adopted by the Second Continental Congress in 1777 and ratified in 1781, established a confederacy built merely on a ‘firm league of friendship' between thirteen independent states. There was only a single branch of national government, the Congress, which was made up of state delegations. Congress under the Articles of Confederation had some powers, but was given no means to execute those powers. Congress could not directly tax individuals or legislate upon them; it had no express power to make law that would be binding in the states' courts and no general power to establish national courts, and it could raise money only by making requests to the states.

The Tea Party's distortion of the Constitution includes intentional denial of the constitutional amendments that have "added to Congress's express constitutional powers, ensuring that Congress has all the tools it needs to address national problems and protect the constitutional rights of all Americans," Wydra and Gans write. "Indeed, most of the amendments added to the Constitution during the 19th and 20th Centuries expanded the power of the federal government. The Tea Party's reading of the Constitution depends on ignoring or repealing these critical amendments."

See CAC's entire report here. For further discussion of the Tea Party's twist on the Constitution, see Wydra's recent article for The Huffington Post.

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By Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

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Cross-posted at The Huffington Post 

The emergence of the Tea Party movement as an increasingly persistent presence in the media and in politics has focused national attention on the Constitution, as Tea Party members invoke our Nation's Founding in their rhetoric and claim to root their agenda in the Constitution. In the abstract, such an effort is commendable: the Constitution should frame our political debates and should be followed by our leaders, whatever their political stripe. But just because you keep a copy of the Constitution in your purse or go to a Tea Party book club does not mean that your claims about the words and meaning of our Nation's charter are plausible. As Americans engage in conversations and debates about the Constitution, it is important we are all on the same page about what our Constitution says--and what it doesn't.

A close look at the Tea Party's version of the Constitution shows that it bears little resemblance to our actual Constitution. Constitutional Accountability Center put to the test the Tea Party's central argument--that our country's Founders established a sharply limited, weak national government--in an Issue Brief released today entitled Setting the Record Straight: The Tea Party and the Constitutional Powers of the Federal Government. Turns out this claim doesn't stand up to the test of text and history.

In fact, while the Tea Partiers declare that they want to go to back to the ideas of the Constitution, it seems that they really want to return to the Articles of Confederation, the failed experiment with a weak central government that was such a disaster George Washington once suggested that it nearly cost Americans victory in the Revolutionary War. The Tea Party's idea that the federal government has no power to act in key areas such as health care, environmental protection and civil rights fits more with the discarded Articles than with the Founders' second and lasting attempt to craft a national charter, our Constitution.

As a history refresher, the Articles of Confederation, adopted by the Second Continental Congress in 1777 and ratified in 1781, established a confederacy built merely on a "firm league of friendship" between thirteen independent states. There was only a single branch of national government, the Congress, which was made up of state delegations. Congress under the Articles of Confederation had some powers, but was given no means to execute those powers. Congress could not directly tax individuals or enact legislation that directly affected citizens; it could raise money only by making requests to the states.

By the time our Founders took up the task of drafting the Constitution in 1787, they had lived under the dysfunctional Articles for a decade and were focused on creating a new, better form of government with a sufficiently strong federal power. This is exactly what our Constitution establishes, giving Congress the power to, among other things, regulate interstate commerce and tax and spend for the general welfare.

The Tea Party story about our sharply limited national government is not only inconsistent with the words and intentions of our Founding generation, but it also requires a form of selective amnesia about the important changes made to the Constitution by successive generations of Americans. Since the Founding, the American people, at critical moments in our country's history, have amended the Constitution to ensure that Congress has all the tools it needs to address national problems and protect the constitutional rights of all Americans. Eight separate amendments expanded the enumerated powers of the federal government, giving vast powers to the government to protect equality, civil rights, and voting rights and to raise funds through taxes on income. Amendments such as the 17th Amendment, which took the power of electing U.S. senators away from state legislators and gave it to the people by popular vote, structurally increased the power of the federal government, vis-à-vis the states.

As the Senate debates Elena Kagan's Supreme Court nomination and the Tea Party continues to focus the Nation's attention on the Constitution, Constitutional Accountability Center will publish a series of posts taking up the various claims about the Constitution being made by Tea Party candidates such as Rand Paul and Sharron Angle, by Senators opposing Kagan's confirmation, and by other elected officials such as Virginia Attorney General Ken Cuccinelli. At the risk of taking too seriously what may simply be political arguments dressed up as constitutional claims, CAC will put these claims to the test, drawing upon the words of our Nation's charter, constitutional debates and other legislative history, and the best constitutional scholarship available. It is important that our national conversation engage the real Constitution and not the "Constitution According to the Tea Party."

To be sure, there are plenty of good faith disagreements to be had over our Constitution's meaning--but we've all got to be reading the same document. When the Tea Partiers' constitutional claims do not stand up to the test of the Constitution's text and history, Americans should not hesitate to speak up and prevent such potentially dangerous distortions of our Nation's charter. It's past time to set the record straight on the Constitution.

 

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I’m an Elena Kagan fan and a baseball fanatic.  So one of the intriguing moments in Kagan’s testimony Wednesday was when she addressed Chief Justice Roberts’ famous “balls and strikes” analogy. Roberts had said at his own Supreme Court confirmation that the role of a judge, like that of an umpire, is just to call balls and strikes. He stated this as a limitation on judicial activism; he meant it as a limitation on progressive judicial activism. Progressives ever since have tried to say it ain’t so, to argue mightily that judges aren’t umpires.  

 

The conservative wing of the Supreme Court has actively, and successfully, overturned and narrowed laws meant to protect workers' rights, minority voting rights, access to courts, as well as taking and construing cases to advance corporate interests, maintained several panelists at the final plenary panel of the 2010 ACS National Convention.

Moderator Linda Greenhouse, a senior research scholar at Yale Law School and former Supreme Court correspondent for The New York Times, asked constitutional law expert Pamela S. Karlan to explain the judiciary's role among the three branches of federal government.

Karlan, a Stanford Law School professor, said, "The Constitution is written in very broad language about very broad principles that were intended to endure for a long period of time and to be applicable to a nation that the framers knew would emerge, but they didn't know in what form. That's why the most important parts of the Constitution are written in broad and sweeping language."

But at the second framing of the Reconstruction Amendments - the 13th, 14th and 15th Amendments - the framers gave "Congress special power to enforce by appropriate legislation the guarantees that go into the rights of citizenship, the guarantees of the privileges or immunities clause, the equal protection clause, and the due process clause," Karlan said. "And they gave Congress that power in part because they distrusted the Supreme Court. I mean today the Supreme Court is living off of the fumes of Brown against Board of Education, that's why it has such power in our country."

But, at the middle of Reconstruction, the high court, Karlan noted was "living off the fumes of Dred Scott." She said, "the Supreme Court was not the place you went to get equality, you went to the legislature."

"So the Constitution's broad sweeping powers are given their real-life meaning by Congress. If you ask where did we get equality, it's from the Civil Rights Act of 1964. If you ask ‘how is that the 15th Amendment actually enfranchised African Americans?' More African Americans were enfranchised in the first two years after the passage of the Voting Rights Act of 1965 than in the entire prior century through judicial enforcement alone. And that's because Congress banned literacy tests [for voting] when the Supreme Court wouldn't. Congress gave people the right to register, when the Courts didn't."

Karlan noted that it is just as important, if not more so, to confirm lower court judges who understand the role of the judiciary, the Constitution and are taking appropriate action. As she noted, it is not useful to pass health care reform law only to then have it hobbled by conservative jurists or to pass environmental regulations that are subsequently gutted by similar judges.

Karlan co-authored a book published by ACS called Keeping Faith with the Constitution, which takes a critical look at the cramped constitutional interpretation promoted by many conservative jurists and lays out an alternative one that promotes fidelity to the Constitution. 

Congressman Jerrold Nadler (D-N.Y.) knocked the Roberts Court for its "campaign to shut the door on litigants." I've introduced a bill, Nadler said, to try to restore the pleading standards, but the business community and its lobbyists, such as the Chamber of Commerce, are targeting the bill, the Open Access to Courts Act. "I don't know if we can bring that to a vote this year or not," he said.

Nadler continued, that the Roberts Court, contrary to Chief Judge Roberts' confirmation testimony, "has been a very activist court."

Someone suggested a few years ago that maybe we start inserting into our legislation the words, "this time we mean it," Nadler added.

John Payton, head of the NAACP Legal Defense and Educational Fund, Inc., said that Congress should take action to "shore up the Voting Rights Act," in light of the high court's recent 5-4 ruling that suggested the conservative wing, led by Chief Justice John Roberts' was seeking the necessary fifth vote to gut Sec. 5 of the Voting Rights Act, which requires a number of states and localities with a history of voting discrimination to get federal preclearance before making any change to voting practices or procedures. But, Payton said he didn't believe there was a "chance that Congress could take any action on the Voting Rights or any other major piece of Civil Rights legislation in this poisoned atmosphere."

Video of the Congress and the Courts plenary:

Helping to kick off the 2010 ACS National Convention, Sen. Al Franken criticized Republican efforts to scuttle the Obama administration's nominations to the federal courts and numerous administration positions. 

"Tonight, we celebrate the rise of a new generation of progressive legal scholars and jurists," Franken said. "Look to your left. Look to your right. Odds are, at least one of the three of you will someday be filibustered by Senate Republicans. Speaking of which, I'd like to give a special shout-out to all the filibustered nominees we have here with us tonight. The Republican obstruction that is standing between you and the work you've agreed to do for your country is unacceptable. And we will continue to fight it."

Franken, the featured speaker at the Convention's opening night Gala dinner at the Renaissance Mayflower Hotel in Washington, D.C, followed Dawn Johnsen, who was nominated by President Obama to lead the Office of Legal Counsel (OLC). A transcript of Franken's speech is available here.

Franken said, "In particular, I want to recognize Dawn Johnsen, who should be the head of the Office of Legal Counsel at the Department of Justice. What Republicans have done to keep you from doing that important job is reprehensible."

The senator also took a sharp look at the conservative wing of the U.S. Supreme Court and its rulings that have consistently supported corporate interests.

"I don't think you need to be a lawyer to recognize that the Roberts Court has, consistently and intentionally, protected and promoted the interests of the powerful over those of individual Americans," Franken said. "And you certainly don't need to be a lawyer to understand what that means for the working people who are losing their rights, one 5-4 decision at a time.

"Tonight," Franken continued, "I'd like to talk about how we got to this sad moment in American legal history - because it didn't happen by accident. Conservative activists - led by the Federalist Society - have waged a remarkably successful battle to re-shape our legal discourse, and thus our legal system. And they're not done yet. I should acknowledge up front that this story is kind of a downer.

"But there's good news: the ending has not yet been written," he continued. "And I really believe that, if we pay attention to how things got so bad, we'll learn how to make them better."

Specifically, conservative jurists, lawmakers and activists have pushed a cramped understanding of constitutional interpretation, Franken said.

"If you listen to the U.S. Senate talk about judicial nominees, you'd be forgiven for thinking that originalism was a time-honored American value, one of the things we fought the British to protect," Franken said. "But ironically enough, originalism - like the designated hitter - only dates back a few decades.

"Indeed, as Cass Sunstein has pointed out, it was Robert Bork who first popularized the notion that the Constitution should be interpreted according to what we believe was the ‘original understanding' of its authors," he continued. "Just to clarify: That's not Robert Bork the Founding Father. That's Robert Bork the 20th century conservative legal activist.

"Originalism isn't a pillar of our Constitutional history," Franken maintained. "It's a talking point. During his confirmation hearing, John Roberts broke out another conservative talking point. He said: ‘Judges are like umpires. Umpires don't make the rules; they apply them.' And he promised: ‘I will remember that it's my job to call balls and strikes and not to pitch or bat.'"

"How ridiculous. Judges are nothing like umpires."

Instead, Franken cited former Justice David Souter who said, "The first lesson, simple as it is, is that whatever court we're in, whatever we are doing, at the end of our task some human being is going to be affected."

But conservatives, Franken said, "would like us to forget this lesson."

Our constitutional discourse, Franken continued, has been so mangled by conservatives that one could be forgiven for believing that court rulings "don't matter to ordinary people, but only to the undeserving riff-raff at the margins of society."

Watch Franken's entire speech below:

Joseph J. Ellis, renowned historian, offers a tough critique of originalism, the method of constitutional interpretation favored by some conservative jurists.

Ellis, who won a Pulitzer for his book Founding Fathers, writes in a piece for The Washington Post that during the forthcoming confirmation hearings for a new justice to fill the seat of Justice John Paul Stevens, the major weapon used against the nominee will likely be the "claim that Supreme Court justices should interpret the Constitution as it was written, not impose their political or personal convictions on the semi-sacred text. Woe to the nominee who has left a paper trail that deviates from the original intentions of the Founders, or what the hostile Senate interrogator defines those intentions to be."

Ellis continues:

The doctrine of original intent rests on a set of implicit assumptions about the framers as a breed apart, momentarily allowed access to a set of timeless and transcendent truths. You don't have to believe that tongues of fire appeared over their heads during the debates. But the doctrine requires you to believe that the ‘miracle at Philadelphia' was a uniquely omniscient occasion when 55 mere mortals were permitted a glimpse of the eternal verities and then embalmed their insights in the document.

Any professional historian proposing such an interpretation today would be laughed off the stage. That four sitting justices on the Supreme Court - Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito - claim to believe it, or some version of it, is truly strange. We might call it the Immaculate Conception theory of jurisprudence.

For other methods of constitutional interpretation, see the book Keeping Faith with the Constitution, which was published last spring by ACS.

On the same day that Justice John Paul Stevens heard oral argument for the last time, President Barack Obama signalled that he will note the threat of conservative judicial activism as he considers Stevens' replacement. On a rare trip to the press section of Air Force One, Obama said that judicial restraint is a principle that should bind both progressive and conservative jurists.

The Associated Press reports:

Obama made clear that his views on judicial restraint are not the only basis he will use in choosing his next nominee for the high court, a decision expected over the next few weeks.

But his comments underscore just how much he thinks courts are being vested with too much power and are overruling legislative will, a factor that will influence his nominee choice.

Obama already has openly criticized the Supreme Court for a January ruling - one led by the court's conservative members - that allowed corporations and unions to spend freely to influence elections. Obama has vowed to replace retiring Justice John Paul Stevens with a like-minded justice who will not let powerful interests crowd out voices of ordinary people.

[Image via Wikimedia Commons.]