Ari Ezra Waldman Hub




Anti-Equality Forces Get 'the Posner Treatment' at Seventh Circuit Hearing

BY ARI EZRA WALDMAN

Posner, Richard 08-10By now you have heard that the attorneys representing Indiana and Wisconsin got a shellacking from the famous Reagan-appointee, Judge Richard Posner. Sean brought us 7 classic outtakes from Judge Posner's questioning, but even those barely scratch the surface of what it must have been like. As someone who has had the privilege (and dread) of arguing before Judge Posner, as well as admiring him from afar, quoting his work, and disagreeing with some of his scholarship, I can say that this is just Posner being Posner. A brilliant scholar with strong views who's been around a long time, he does not suffer fools, whether those fools are seeking millions of dollars in damages or challenging the constitutionality of a ban on gays marrying. Do not think Judge Posner's obvious frustration with the anti-equality attorneys is evidence of a particular love of marriage equality, something he still calls "homosexual marriage," after all. This is how he would approach anyone who comes to him with a stupid argument.

And that is the greatest take away from the Seventh Circuit marriage equality hearings: the arguments against us are just stupid, and everyone appears to get that.

Let's start with Judge Posner, who seemed to relish the opportunity to inject some sanity into Wisconsin's and Indiana's arguments. He repeatedly said things like, "So you don't have an answer to that?" or "How can you brief it if you don't know anything about it," in response to Wisconsin's inability to support its arguments that heterosexuals would stop marrying if gays could, or "You don't seem to have any reasons" for banning gays from marrying, or, as Sean noted yesterday, "You don't have any sort of empirical or even conjectural basis for your law." Judge Posner followed that one with a little snark: "Funny." Mic drop.

CONTINUED, AFTER THE JUMP...

Continue reading "Anti-Equality Forces Get 'the Posner Treatment' at Seventh Circuit Hearing" »


Marriage Equality Goes Before the 7th Circuit: A Preview

SeventhBY ARI EZRA WALDMAN

Marriage equality gets another hearing before another federal appellate court this morning. Before an as-yet-to-be-named three-judge panel of the Chicago-based Seventh Circuit Court of Appeals, gay and lesbian couples in Indiana and Wisconsin will argue that, as the district courts stated below, the states' bans on gay marriage are unconstitutional. The states' two Republican administrations will argue that gays and lesbians should not be included in the fundamental right to marry and that it is the states' best interest to ban gays from marrying. These arguments are tired, old, and have been rejected many times.

But although the weight of legal arguments and a string of legal victories are on our side, the Seventh Circuit poses an uncertain challenge for several reasons.

First, the panel. We will not know the panel until just a short time before oral argument begins. In previous previews of marriage equality cases before appellate courts, we were able to discuss the political leanings of the judges. We discussed that in the Fourth Circuit and in the Sixth Circuit. And although political affiliation is not always a perfect indication of how a judge will decide a ruling, the knowledge informs us. As a former appellate attorney, I made sure that at least part of my legal strategy reflected the decision histories and tendencies of the judges on the panel. I could never do that in the Seventh Circuit outside of a few on the fly preparations before oral argument.

We do know that 10 of the 14 judges (including senior judges with a lighter case load) on the Seventh Circuit were appointed by Republican presidents. But we also know that (a) many Republican judges have written eloquent marriage equality decisions and (b) some of the Republican-appointed judges on the Seventh Circuit defy traditional conservatism. The famous Judge Richard Posner, for example, is a scion of the law and economics movement and he does not necessarily toe a socially conservative line. For example, Judge Posner has been sympathetic to the pro-choice movement.

WoodWe also know that Judge Diane Wood, a Clinton-appointee and liberal scholar, is now the chief judge, but that does not necessarily matter for panel assignments. The Seventh Circuit's staff executive determines panels using a very simple matrix of 3 judge combinations. Judges learn their panels weeks, if not months in advance; we hear about it the day of.

Second, the arguments. Indiana's central argument is that banning gays from marrying is in the best interest of the state because the state needs to encourage opposite-sex couples to marry and have children within the marital relationship. We've heard that argument before and it is simply laughable. There is no way that banning one group from marrying actually encourages a totally different group to not just marry but also to have kids while married. Plus, gay couples have children, too. I cannot imagine judges like Posner and Frank Easterbook, another law and economics scholar, seeing any legitimacy to the supposed "incentive" for heterosexuals to marry in Indiana's argument.

Third, the history. We won more than 30 cases in a row after the Supreme Court's decision in Windsor. Remarkably, we lost one in Tennessee just two weeks ago, a decision I will write about presently. But the Seventh Circuit is looking at the cases before it in the context of a federal judiciary that, so far, has been overwhelmingly favorable to marriage equality. The judges will see it below them -- in the many district court decisions overturning bans in states across the country -- and above them -- in the Supreme Court's decision in United States v. Windsor. It is hard to see the appellate panel ignoring this context. Neither Judge Posner nor Judge Easterbrook, nor, for that matter, any of the senior judges, are likely to want to be remembered for going against the full weight of an unstoppable tide toward marriage equality in the federal courts.

We will know more once we hear the panels.

***

Follow me on Twitter and on Facebook. Check out my website at www.ariewaldman.com.

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently pursuing his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


Six Marriage Equality Cases at the Sixth Circuit Today: A Preview

6thcircuit

BY ARI EZRA WALDMAN

The Cincinnati-based Sixth Circuit Court of Appeals will hear oral arguments in a series of marriage equality cases today from the jurisdiction's four constituent states: Kentucky, Michigan, Ohio, and Tennessee. It is an unprecedented coming together of marriage equality litigation that has the potential to change the destiny of marriage in the federal courts for several reasons:

6thcircuitFirst, these cases cover the entire Sixth Circuit and any decision could affect all of them directly, even if a decision is stayed pending appeal to the Supreme Court. We have seen this happen in the Fourth Circuit, where the appellate court overturns a ban on marriage equality and other states in the circuit, North Carolina and West Virginia, either stop defending their own bans or take other pro-equality actions because they see the writing on the wall even though the decision is stayed pending appeal.

Second, the three-judge panel reflects the right-of-center tilt of the circuit, consisting of a Clinton appointee and two George W. Bush appointees, one of whom has made his fiercely conservative views public.

And, third, as the third federal appeals court to hear a post-Windsor marriage case -- after the Tenth (the Utah case) and the Fourth (the Virginia case), but before the Seventh (on August 26), the Ninth (on September 8), and at some point, the Fifth -- the Sixth Circuit is being watched to determine if a pattern is emerging among the circuits or if there will be a split among the panels.

AFTER THE JUMP, I summarize the cases and briefly profile the judges on the panel. I will also discuss a few things to watch for during the marthon oral argument, scheduled to being at 1 PM.

CONTINUED, AFTER THE JUMP...

Continue reading "Six Marriage Equality Cases at the Sixth Circuit Today: A Preview" »


Fourth Circuit Affirms Virginia's Ban on Gay Marriage Unconstitutional: An Analysis of the Dissent

BY ARI EZRA WALDMAN

NiemeyerToday, the Richmond, Virginia-based Fourth Circuit affirmed a lower court judge's decision striking down Virginia's ban on same-sex marriage. When last we discussed this case, a three-judge panel was hearing oral argument and one judge, Paul V. Niemeyer (right), was using his time questioning the pro-equality advocacy to spout particular offensive rhetoric.

Not surprisingly, Judge Niemeyer is in the minority today, writing a lone dissenting opinion to the majority's affirmation that banning gays from marrying denies them a fundamental right under the U.S. Constitution. That fundamental right -- the right to marry -- is denied to gay persons when a state says that they cannot marry the person they love, that they could be forced to deny the equality of their love and union (by being relegated to a civil union or worse) or could easily marry a stranger as long as that stranger is of a different gender.

The majority opinion sounds pretty familiar: the appellants have standing, Baker v. Nelson does not foreclose a federal decision on the merits, and Virginia's ban violates the Fifth and Fourteenth Amendments by denying gays the fundamental right to marry, a right that the Supreme Court has affirmed and reaffirmed more than 15 times.

We have covered all those matters before. AFTER THE JUMP, I want to spend a few column inches on the dissent, a diatribe that is dimissive, at best, and hateful, at worst.

Continue reading "Fourth Circuit Affirms Virginia's Ban on Gay Marriage Unconstitutional: An Analysis of the Dissent" »


The Most Dangerous Line in the Supreme Court's Hobby Lobby Ruling

AlitoBY ARI EZRA WALDMAN

The most dangerous line in the Supreme Court’s recent decision in Burwell v. Hobby Lobby doesn’t come until page 46. It reads as follows:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

That doesn’t sound too bad; indeed, it is probably one of the few statements in Justice Alito’s opinion that many of us would endorse.

Its danger, particularly to the LGBT community, rests in what is not said.

As we have discussed at length, Hobby Lobby allowed a family-run, for-profit arts and crafts company to deny its female employees access to certain contraception simply because that contraception violates the religious beliefs of the company owners.

GinsburgJustice Ruth Bader Ginsburg’s dissent cautioned that the Court was opening a door to allow anyone to use the pretext of religion to opt out of antidiscrimination or public accommodations laws. Justice Alito’s response was to deny the charge, arguing that where the government has a compelling interest in preventing discrimination, as it does in preventing discrimination on the basis of race, the Hobby Lobby exemption would not succeed.

But what happens when the government does not have that “compelling interest”?

Justice Alito chose a convenient example to respond to Justice Ginsburg’s concern. Most people agree that discrimination on the basis of race is not just bad, but absolutely anathematic to our constitutional tradition. But no one in the Court’s five-justice conservative majority has ever said that the state has a compelling interest to prevent discrimination on the basis of sexual orientation or gender identity. Even Justice Kennedy, the author of the Supreme Court’s three gay rights decisions, has carefully declined to declare that antigay discrimination merits heightened scrutiny or that the government has a compelling interest to permit gays to marry. We might believe that the same compelling interest that gives the state the power to prevent discrimination on the basis of race gives the state the same power to prevent discrimination on another status that has nothing to do with an individual’s ability to contribute to society—namely, sexual orientation or gender identity. But there are many judges out there who are not yet there. Congress isn’t even there yet.

CONTINUED, AFTER THE JUMP...

Continue reading "The Most Dangerous Line in the Supreme Court's Hobby Lobby Ruling" »


The President's Executive Order and Hobby Lobby: The Legal Connection

1_eo_obama

BY ARI EZRA WALDMAN

President Obama has made good on another pro-equality policy promise. Today, he amended a standing executive order to prohibit federal contractors from discriminating on the basis of sexual orientation. Instead of creating a new nondiscrimination rule with an unnecessary and broad religious exemption, the President simply added the words “sexual orientation” and “gender identity” to the list of impermissible bases for discrimination. (Technically, more than these four words were added, but you get the idea.). The amendments also explicitly ban discrimination against federal employees on the basis of “gender identity.”

LGBT advocates have been clamoring for this kind of action for some time. Several years ago, many activists pushed Congress to pass the Employment Non-Discrimination Act (ENDA), a broad nondiscrimination law that would have covered more than just federal contractors. The law passed the Senate with every Democrat and only a handful of Republican votes, but had no future in the Republican-controlled House. Even worse, the draft bill included a broad religious exemption that has recently inspired several LGBT organizations, including the ACLU, the Gay & Lesbian Advocates and Defenders, Lambda Legal, the National Center for Lesbian Rights, and the Transgender Law Center, to withdraw their support for the bill. Now, our progressive allies are loathe to touch it.

Knowing that Republican House Speaker John Boehner was never going to bring a nondiscrimination bill to the floor, many advocates demanded that the President sign an executive order instead. And from now on, if a company wants to receive a federal contract, it must sign a pledge that it does not discrimination against gays.

HobbylobbyThat is great news, but the legal landscape after the Supreme Court’s recent decision in Burwell v. Hobby Lobby makes this story more complicated. If a private, for-profit company now has permission to discriminate against women because its owners’ religion tells it to, one wonders if a similar company who wants a federal contract could use the same religious exemption to opt out of equal treatment of gays. AFTER THE JUMP, I discuss the executive order and the questions raised by Hobby Lobby.

CONTINUED, AFTER THE JUMP...

Continue reading "The President's Executive Order and Hobby Lobby: The Legal Connection" »


Trending



Towleroad - Blogged