May 31, 2007

the dirty little move II

Betsy and I hit the road for North Platte yesterday--three hours, 10 minutes, strong winds and $100 of ethanol (it's cheaper here than regular b/c of the subsidies--Betsy's never had it so good, I reckon). My mother followed along in her car, and once in NP, we spent the day driving around, talking to realtors, looking at houses (mostly from the outside), and getting discouraged. Finally, we went to an 5:45 appointment I'd made that afternoon to see a duplex, not expecting much. The first one we looked at was pretty nice--but the second, exactly the same except it had beautiful hardwood floors, was the one I wanted. It was far-and-away nicer and in better condition than anything we'd looked at that day: central air, the aforementioned hardwood floors, a dishwasher, a washer and dryer, two bedrooms, a nice tree and some bushes out front, and the possibility of a dog-friend. "Judy," I says to the landlady, "Judy, I'd like to take this place. What's your application process like?" "Well," she says, "I've had good luck with attorneys. Just come down to my business tomorrow and we'll sign the papers." She was amazingly nice, and agreed to let us unload Betsy and sleep there that very night, giving us the one key she had.

So off Mom and I went to celebratory big fat greek salads and a rendezvous with the local ginormous grocery, SunMart (it's amazing how even in smallish towns in Nebraska the grocery stores look like they're prepared for visiting armies, maybe of Sun-Martians). Then we stopped at my future office to pick up Betsy, where my also-extremely-nice colleague AMcM volunteered to help us unload her! And once we got to my new place, two neighbors, James and Clayton, just showed up and insisted on helping too! A job that would have taken my mother and me four hours at least took one instead. Then we got to stand around and drink Coors Lite outside, which tasted delicious and, I was told, there was even no need for worry that the cops were going to bust us. I guess we were on "my" property the whole time anyway, but still, it's not something I'm used to doing.

My mother and I put together some of the furniture, unpacked a few necessary boxes, ate some ice cream and called it a night. This morning, I returned Betsy to her rightful owners, got some keys made, signed the lease, had the utilities switched to my name, and we took off for our state's capital. I have training in Omaha, Lincoln, and Grand Island all next week, so I won't actually be back in NP till next weekend sometime. But in the meantime, I am free of Betsy and so is my stuff, and all is well. Yesterday ended so much better than it began, it's almost hard to believe it was all just one day.

And so ends the dirty little move, at least the moving part of it. The rest of it, we'll just have to see.

. . .


p.s. The first half of the DLM really was dirty, because between Erik and I, we packed so efficiently that I had to go commando from NY to NE. It was a nice change of pace, though. Underwear might be overrated.

May 29, 2007

arrrgyle wristbands *** updated 5/31/07



arrrgh. just the thing for swabbing the decks, me hearties.


. . .

update:
to JC: even lawyers have to swab decks sometimes.
to SWT: with me swabbin' fists! (as you, can see)
to RCS: Muchas gracias.

May 28, 2007

the dirty little move

It all happened very fast. At a Bright Eyes concert in midtown on friday, Conor Oberst stalled and Lou Reed (a thinking reed), all muscles and new york and deeply lined, appeared. He and Oberst sang waiting for the man and dirty blvd to a full, standing audience. Then to home and then to bed, because the next day was the day I left New York City, my Dirty Little Move (DLM, coined by LWT): a more apropos send-off than Lou Reed's surprise performance couldn't be asked for. Early Saturday I picked up the moving truck (watching a good portion of a good-old-shoot-em-up western while waiting), and H*s, SWT, and E.G. and I packed her with all my manifold belongings. H*s and I said our goodbyes to 1018 manhattan avenue, apartment 1, hopped (literally: she's pretty high off the ground) into the penske, and set out for the west. The DLM started off inauspiciously, though with high good humor: I managed to make the first wrong turn possible, and taking the Queens-Midtown Tunnel was made more exciting by the police search of the penske for midget wrestlers (not to mention the surprise $9 toll), and we had to drive straight thru manhattan on a holiday weekend and figure out how to get a truck into the Lincoln Tunnel. From then on, however, the DLM unfurled with surprising smoothness. At some point, when we passed a sign instructing us not to take horses on to the highway, the penske acquired the moniker Betsy. About 8 hours after entering the Queens-Midtown Tunnel, Betsy, H*s and I made it to my brother and his family's apartment in lovely-but-difficult-to-navigate Pittsburgh, PA. That day was a mere three-state day: News York and Jersey, and the uncounted mountains of Pennsylvania.

We primed the pump of the second leg of our trip with lots of baby-holding and bagel-eating; a slow sunday morning, thoroughly necessitated by the events of the days past. Then, with our new (and later, we discovered, needed) atlas and this highly recommended book of NYT crossword puzzles, Betsy, H*s and I set out once more. Through more Pennsylvania and mountains, West Virginia, several thunderstorms, Ohio, four crossword puzzles (two Tuesdays, one Monday, and one Wednesday), Indiana, a beautiful sunset, Illinois, endless darkness, Iowa, an hour of Nebraska and several hundred dollars worth of gasoline we drove, 17 hours, and arrived this morning around 6:30. You can't ask for a better road-trip companion than H*s--grab him for your next one. Nor are there better pit-stop hosts than my brother, my sister-in-law, my niece, and their dog. And the crossword puzzles were perfect for keeping both driver and passenger awake and focused. Google maps did well by us, with one small exception (a momentary Pittsburgh confusion with no adverse effects), and we only really needed the atlas for the small portion of the trip for which we'd come up with directions ourselves (a bad move).

We are now paused, and Betsy is parked, in Lincoln, and we'll shake the final leg, to North Platte, later this week.

. . .

May 24, 2007

blink blink blink blink





. . .

the great gastronomic goodbye

On Saturday, my possessions, H*s, and I will leave New York in a penske truck and head for the hills of Pennsylvania, en route to North Platte, NE. Right now it seems pretty sad, but I think once we hit the open road (or Memorial-Day-Weekend-congested road, as it may be), I think I'll start getting excited. In between the packing, I've been eating. SWT, H*s, various dinner companions, and I have over the past week sampled: thai, ethiopian, uppity pizza, coffee-shop, bar & grill, polish and italian pastry, seafood, organic cupcakes, bakery, fancy italian, neighborhood brunch, Brooklyn cheesecake, and homemade pesto cuisines. In one day, I had a homemade omelet, raw oysters, flounder, and lobster, and an ethiopian hodgepodge. It's a great way to say goodbye, both to the city and the friends.

. . .

worth a listen

This American Life, Episode 204: 81 Words

"The story of how the American Psychiatric Association decided in 1973 that homosexuality was no longer a mental illness."

I listened to this episode today on the subway. It's well told, and a good story. You can listen to it online here.

Here's the synopsis from the website:

Prologue.

Host Ira Glass explains that the show this week consists of one long story, the story of something very small that was part of something very large in the history of our country. (2 minutes)

Act One.

In 1973, the American Psychiatric Association (APA) declared that homosexuality was not a disease simply by changing the 81-word definition of sexual deviance in its own reference manual. It was a change that attracted a lot of attention at the time, but the story of what led up to that change is one that we hear today, from reporter Alix Spiegel. Part one of Alix's story details the activities of a closeted group of gay psychiatrists within the APA who met in secret and called themselves the GAYPA ... and another, even more secret group of gay psychiatrists among the political echelons of the APA. Alix's own grandfather was among these psychiatrists, and the president-elect of the APA at the time of the change. (24 minutes)

Act Two.

Alix Spiegel's story continues, with a man dressed in a Nixon mask called Dr. Anonymous, and a pivotal encounter in a Hawaiian bar. (30 minutes)


. . .

May 18, 2007

if you graduated with me a week ago,

chances are you're in this photo album: http://nyu.facebook.com/album.php?aid=21718&l=66c78&id=720380071

or this one:
http://nyu.facebook.com/album.php?aid=21722&l=c30c9&id=720380071

the other gallery is under construction.

. . .

May 12, 2007

it is finished.

I've graduated.

May 9, 2007

here she is, my paper.

It's about the district court's and appeals court's very different rulings on the constitutionality (federal) of Nebraska's state constitutional marriage-is-between-a-man-and-a-woman amendment. I focus particularly on the courts' applications of Romer v. Evans, the case most on point, in which the Supreme Court found an amendment to the Colorado state constitution unconstitutional because it was motivated by animus against gays, lesbians, bi- and transsexuals. I think most people might find it interesting, although there's probably a little bit of opaque legal jargon. I wrote it in a short span of time, and so it probably has a lot of flaws, the most obvious but unsubstantive of which is that I haven't put in the citations (footnotes) yet. I have put the introduction here on the main page. If you click on the "full text" link below it, you can read the rest. My conclusion in short: gay marriage in America is doomed if it has to rely only on appeals courts' interpretations of Romer v. Evans.


Citizens for Equal Protection v. Bruning:
a case study of the applicability of Romer v. Evans

Introduction
On Nov. 7, 2000, seventy percent of Nebraska voters approved the following amendment to the Nebraska Constitution:

Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska. Neb. Const. Art. I, § 29 (hereinafter “Section 29” or “the amendment”).

Two years after the amendment passed, a lesbian couple who had had their relationship formally recognized in Vermont moved to Nebraska and had a child. They wrote a letter to then-Governor Mike Johanns asking about health insurance, adoption, and inheritance issues. The Governor responded that the adoption of Section 29 precluded resolution of these issues for the couple. CITE District Court Opinion.

In early 2003, State Senator Nancy Thompson introduced a bill to the Nebraska Legislature that would have given domestic partners of deceased people the power and authority to make choices regarding anatomical gifts and remains (Legislative Bill 671 (hereinafter “LB 671”)). Sen. Thompson requested an opinion from then-State Attorney General Jon Bruning as to the constitutionality of the bill. The Attorney General issued Op. Att’y Gen. No. 03004 (2003) in response, which stated that the proposed bill would give a domestic partner the same rights as had been traditionally reserved for spouses. Domestic partnerships could include same-sex couples, and so the bill, by giving them rights “on the same plane” as marital rights, would “give legal effect to a same-sex relationship, thereby validating or recognizing it.” Section 29 precludes such recognition, he concluded, and so LB 671’s constitutionality was suspect. LB 671 did not make it out of committee.

In April of 2003, plaintiff non-profit corporations Citizens for Equal Protection, Inc., Nebraska Advocates for Justice and Equality, and ACLU Nebraska, all of which have lesbian, gay, and bisexual members, filed a complaint in federal district court against the Nebraska Attorney General and the Governor. The plaintiffs asked the court to declare that Section 29 violates the Equal Protection Clause of the US Constitution; declare that it violates the U.S. Constitution’s Article I, § 10 ban on bills of attainder; and to strike and permanently enjoin enforcement of Section 29. CITE District Court Opinion.

The district court’s opinion in Citizens for Equal Protection v. Bruning, 368 F. Supp. 2d 980 (D. Neb. 2005) (hereinafter “Citizens I”), reads almost like a plaintiff’s brief, finding for the plaintiffs on all issues they argue, and some they never argued for in the first place. In fact, it’s possible that Judge Bataillon’s enthusiasm for the plaintiffs’ case actually made it easier for the Eighth Circuit to reverse it (455 F. 3d 859 (8th Cir. 2006) (hereinafter “Citizens II”)). In this paper I will delineate the arguments Judge Bataillon made in the district court opinion, the response they receive from the Eighth Circuit, and evaluate the final opinion in light of relevant caselaw, principally Romer v. Evans, 517 U.S. 620 (1996).

This case rises and falls with the amount of scrutiny Section 29 gets.


The District Court’s Holding

The district court first held that Section 29 burdened the plaintiffs’ First Amendment right of association, both intimate and expressive, and their right to petition the government for redress of grievances. CITE. Without ruling that Section 29 unconstitutionally violated the plaintiffs’ First Amendment rights, Judge Bataillon instead noted that because their First Amendment rights were burdened, Section 29 could receive heightened scrutiny. CITE However, he wrote, that wasn’t necessary because the amendment couldn’t survive rational basis review under Equal Protection analysis. CITE. Following Romer, the district court said that the amendment was both too narrow and too broad, had no factual context related to legitimate state interests, and was a classification of people merely for the sake of the classification. CITE. Judge Bataillon found Section 29 indistinguishable from Colorado’s Amendment 2, CITE, which the Supreme Court said violated the Equal Protection Clause of the federal constitution. CITE. Therefore, the court’s second holding was that Section 29 also violated the Equal Protection Clause. CITE. Finally, Judge Bataillon held that Section 29 was a Bill of Attainder, forbidden by the Article I, §10 of the U.S. Constitution, and gave the plaintiffs the relief they sought. CITE.

The First Amendment
There is a problem in Citizens I: The plaintiffs never made a First Amendment claim. Judge Bataillon clearly realized this: in all the places where he recites the plaintiffs’ claims, the First Amendment is never mentioned. CITE. Because the plaintiffs did not raise this claim, he could not hold that Section 29 unconstitutionally violates the First Amendment. However, since he could not reach that result, it isn’t clear at all what the purpose of the First Amendment section is. It is all dicta, and it comprises nine pages of a 24-page opinion. As noted above, the judge notes that First Amendment violations trigger strict scrutiny, but that that isn’t necessary because Section 29 fails under rational basis review. Nevertheless, he does examine the amendment for vagueness and overbreadth: essentially strict scrutiny. CITE. The judge re-states the needlessness of strict scrutiny triggered by First Amendment violations in the Equal Protection section, and yet uses the First Amendment analysis to compare Section 29 with the state constitutional amendment found unconstititutional in Romer v. Evans. This is also problematic: first because the First Amendment argument wasn’t briefed by the parties; and second, because it essentially inserts strict scrutiny into what was supposed to be rational basis review. More on this later. First, I will discuss the First Amendment logic in Citizens I.

Right of Association: Expressive
The right to associate has components relevant to this case: expressive and intimate. Expressive association is the right to associate to engage in First Amendment-protected activities, such as speech, petitioning for redress of grievances, and the exercise of religion. CITE. It also protects advocacy of lawful ends, organizational advocacy, and attempting to persuade others to change their views. CITE. This can’t be curtailed merely because the speaker’s message may be offensive to his audience, and in fact political and cultural diversity is a strong First Amendment value. CITE. The freedom to speak is worthless without the freedom to engage in group effort, because otherwise the speech would be to no end. CITE. There is a “corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” CITE The First Amendment protects against both direct and indirect infringement of these rights, CITE and the means to pursue goals by other means does not ameliorate disabilities imposed by a restraint on the freedom of expressive association. CITE

The plaintiffs’ right to expressive association is violated by Section 29, writes the district court, because it discourages advocates of same-sex relationships from enthusiastic advocacy; chills the incentive to associate and organize in pursuit of these goals; and diminishes proponents’ ability to garner support and financial backing for their goals. CITE
This argument seems particularly vulnerable. To use an example posed by the Eighth Circuit in another context, Nebraska’s constitutional provision forbidding “games of chance” works all the same expressive associational harms on casino operators. CITE. If that provision does not violate the First Amendment, it’s not clear from Citizens I why Section 29 should. Without the animus part of the Romer argument, this reasoning proves too much.

Right of Association: Intimate
The choice to enter into and maintain intimate relationships is a fundamental element of personal liberty protected from unjust state interference by the Due Process Clause. CITE. Relationships exist on a spectrum of intimacy: the least intimate, such as business associations, do not receive Due Process protection; those at the other end, the most intimate, receive the most protection. CITE. Those intimate relationships are characterized by deep personal attachments and commitments, small size, selectivity, and seclusion. CITE. Examples of these intimate relationships include, but are not limited to, married individuals, children and parents, and co-habitation with relatives. CITE. The legal status or sanction on the relationship isn’t controlling or unlimited: Judge Bataillon cites Levy v. Louisiania, where the state was not allowed to condition standing for a wrongful death suit on legitimacy of the child. CITE. Nor is constitutional protection limited to biological family members; CITE some protection has been extended to foster families. CITE.

Section 29 violates the plaintiffs’ right to intimate association because it goes beyond defining marriage. The second sentence

"mandates that Nebraska will not recognize or give effect to “the uniting of two persons” in a same-sex relationship “similar to” marriage. This language, especially given the expansive reading it has been afforded in Nebraska, potentially prohibits or at least inhibits people, regardless of sexual preference, from entering into numerous relationships or living arrangements that could be interpreted as a same-sex relationship "similar to" marriage. CITE

The judge then suggests that relationships “similar to” marriage under a broad interpretation could easily include roommates, co-tenants, foster parents, and other relationships, as marriage can’t be defined solely by sexual, procreational, or financial aspects. CITE. These relationships, including domestic partnerships, he writes, fall close to the most intimate side of the spectrum of Due Process protection from state interference. CITE In short, Section 29 is overbroad because it can apply to too many relationships, and vague because it is not clear what relationships are affected. CITE.

Right to Petition the Government for the Redress of Grievances
The state cannot regulate political activity to prevent association for the mere solicitation of governmental action with regard to the passage of laws. CITE.

The district court cites Evans v. Romer, CITE, the opinion by the Colorado Supreme Court preceding that of the Supreme Court, to establish the right to participate equally in the political process as fundamental. CITE. This is problematic for obvious reasons: the Supreme Court upheld the Colorado Supreme Court’s holding, but not its grounds. CITE. So the text, first, does not have precedential value, and second, is arguably not even persuasive. The judge writes:

The “fundamental right to participate equally in the political process” can be impinged by a state constitutional amendment that “alters the political process so that a targeted class is prohibited from obtaining legislative, executive, and judicial protection or redress from discrimination absent the consent of a majority of the electorate through the adoption of a constitutional amendment.” CITE.

And while the Supreme Court did not explicitly reject the proposition that there is a fundamental right to participate equally in the democratic process in Romer v. Evans, neither does it embrace it. It does accept the Colorado Supreme Court’s characterization of the objective of the Amendment, which is to withdraw “from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and [to forbid] reinstatement of these laws and policies.” CITE. However, the Supreme Court does not say that that objective is a violation of a fundamental right. Instead, it very carefully (if confusingly) finds Amendment 2 unconstitutional using only rational basis review CITE; if the right to participate were fundamental, it would require heightened scrutiny. Judge Bataillon knows this too: he does not strike down the law on these grounds. CITE.

The judge does, however, note that Section 29 places significant burdens on the right to petition the government. The blanket prohibition in the second sentence of the amendment prevents plaintiffs from even asking for benefits, and essentially denies them access to means to effect social and political change. CITE. The court finds that this is a barrier to participation that no minority population could surmount. CITE. However, this reasoning, like that of the expressive association, may also prove too much. Again, without the analysis of the purpose of the legislation, the animus, there is no way to distinguish this minority from the minority consisting of casino owners.

The defendants argued that the plaintiffs have full access to the political process, so long as the rights sought aren’t premised on recognition of same-sex relationships. CITE. The court points out that this logic is circular: petitioners’ access cannot be premised on recognition of same-sex relationships, but any rights sought that are “on the same plane” as marital rights would be, according to the Attorney General’s opinion, inherently a recognition of same-sex relationships. CITE. Furthermore, Section 29 is overbroad because there are legitimate reasons consistent with the goal of establishing stable family relationships and protecting children for extending some marital rights to other relationships. CITE.

The Eighth Circuit disposes of these First Amendment arguments merely by saying that it is “exceedingly unlikely” that it will prevent people from continuing to associate. CITE. This may be plausible with regard to roommates and co-tenants and such. However, they also assert without explanation that Section 29 does not “directly and substantially” interfere with the plaintiffs’ ability to associate in lawful pursuit of a common goal. CITE. This I don’t find convincing, since the goal is put out of reach. The ability to associate will necessarily be impacted by the unattainability of the goal. Citizens II winds up by merely repeating the defendants’ mantra, that the right to advocate is protected by the Constitution, but not the right to political success. CITE. This, I think, is not a fair treatment of the district court’s analysis, nor does it give Romer the respect it deserves.

However, it is all moot because the plaintiffs did not make a First Amendment claim, and all these issues could not lead to a finding of unconstitutionality in any event. So we come to the meat of the opinions, the Equal Protection analysis.

Equal Protection: Citizens I

The plaintiffs argue that Section 29 violates their right equal protection under the laws because it inhibits them from advocating for the extension of rights historically associated with marriage (these are many: taxes, adoption, benefits, immigration, etc.). CITE.

The district court acknowledged that the state has an interest in regulating marriage: it is the institutional basis for defining fundamental relationship rights and responsibilities of people in organized society. CITE. However, the state is not given free rein. In Romer v. Evans, the Supreme Court found that Colorado’s Constitutional Amendment 2 violated Equal Protection using rational basis review. CITE. Amendment 2 read as follows:

No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.

Amendment 2, the Supreme Court held, “imposed a broad disability on homosexuals and no others by prohibiting them from seeking or receiving specific legal protections without a legitimate state objective. The Court found that denial of the right to obtain specific protections from the law is a denial of equal protection in the most literal sense.” CITE. In an unusually searching application of rational basis review, the Supreme Court held that Amendment 2’s breadth was so far removed from its justifications that it led to an inference of animosity toward the class of people it affected. CITE. And, in fact, Amendment 2 bore no factual relation to legitimate state interests. CITE.

The defendants argue that Section 29 has three purposes: to preserve marriage as a union between a man and a woman; to promote procreation and family life; and to ensure that Nebraskans are not forced to recognize same-sex marriages from other states. CITE. They claim that the plaintiffs have no right to win a political battle, or to fix the terms on which a battle will be fought. They say that this is a purely political issue, and Nebraskans have the right to define marriage as they see fit. CITE. The defendants distinguish Romer on the grounds that Section 29 merely codifies the already-existing status of same-sex couples, and is narrow and deals only with marriage. CITE.

The district court in Citizens I held that Section 29 is indistinguishable from Romer’s Amendment 2. CITE. Section 29 targets the same class of citizens and limits their abilities to obtain legal protections from the legislature. It imposes broad disabilities on a single group. CITE. It fails rational basis review because it is both too broad and too narrow. It is too broad because, as noted above, it reaches not only same-sex marriage, but other arrangements and contracts, and too narrow because it does not address other threats to marriage (i.e. divorce). CITE. And it is status-based: it goes so far beyond defining marriage that there is the same inference of animosity. CITE.

The only purpose of Section 29, Judge Bataillon wrote, was to deny access to the legislative process by this group. CITE. “Individuals must be able to be free of undue government interference, and must be able to participate equally in the political process.” CITE. This has strong overtones of the preceding First Amendment analysis, without actually calling upon it.

This is problematic for the two reasons stated before: that the First Amendment issues weren’t briefed by the parties; and the strict scrutiny required under First Amendment analysis seems incongruous with rational basis review. Furthermore, Citizens I, as Citizens II notes, cites no caselaw in support of this principle of equal participation. However, it does seem strongly implied in the case cited just before that passage, Northeastern Fla. Chapter v. City of Jacksonville, 508 U.S. 656, 666 (1993), which stated that “When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group ... [the injury] is the denial of equal treatment resulting from the imposition of the barrier....” The district court in Citizens I also doesn’t mention that the injury Northeastern Florida describes is the injury in fact required to establish standing. Assessing complicated standing issues is not within the scope of this paper, but it is important to note that what establishes injury in fact for standing purposes may not in the end prove unconstitutional. However, the Eighth Circuit does not address this line of cases, so that issue remains unexplored.

The defendants’ attempts to distinguish Romer were not persuasive, according to Judge Bataillon in Citizens I. The troubling issue in Section 29 is not its retrospective application but its prospective effect, and the sweep of the amendment is neither narrow nor does it deal only with marriage. CITE. The essence of Romer is that the plaintiffs are denied benefits and the ability to seek them, merely because of animus. CITE. Animus, or the bare congressional desire to harm, cannot be a legitimate government interest, regardless of the political nature of the issue. CITE. The court also dismissed the defendants’ argument that Section 29 was purely political because it was about the right of access to the political process, not about the end result of the process. CITE.

Citizens I’s central holding is that Section 29 violates the Equal Protection of the Constitution because it “inflicts immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it” CITE, and there is an inadequate fit between the preservation of marriage and the breadth of the amendment CITE.

Equal Protection: Citizens II

The Eighth Circuit’s analysis of the Equal Protection issues in this case are as unsatisfactory as the rest of its opinion. The Court discusses Romer v. Evans in depth, yet simply does not apply it. Citizens II dismisses the Colorado Supreme Court’s Evans v. Romer establishment of the fundamental right to participate equally merely by pointing out that the dissent states that the right to participate equally is not a fundamental right. CITE. However, if the Colorado Supreme Court’s opinion has no precedential value, and questionable persuasive value, that of the dissent has even less. The Colorado Supreme Court at least came to the same result as the Supreme Court; that cannot be said of the dissent’s conclusions. The court then runs through a typical summary of Romer v. Evans, emphasizing heavily the court’s use of rational basis review. CITE.

Citizens II makes much of the level of scrutiny given Section 29 by the district court:
[T]the district court purported to apply conventional, “rational-basis” equal protection analysis… But the court in its discussion applied the same strict scrutiny analysis applied by the Colorado Supreme Court, but not by the United States Supreme Court, in Romer. Like the Colorado Court, the district court based its heightened scrutiny on Appellees’ “fundamental right of access to the political process.” CITE

This is problematic for two reasons. First, it mischaracterizes Citizens I’s basis of its findings: the fundamental right of access was one of several similarities to the Amendment at stake in Romer that ultimately justified its finding Section 29 unconstitutional. Second, as I will discuss next, the rational basis review in Romer is not conventional, and so any judge attempting to apply should engage in unconventional analysis.

Instead of the “strict scrutiny” applied by Judge Bataillon, the Court writes, rational basis review is appropriate; “the fundamental right of access is not an absolute right,” because groups will always try to make it harder for each other to establish their legislative objectives. CITE. The opinion then cites Justice Scalia’s dissent in Romer to limit the majority’s expansive holding:

Similarly, Justice Scalia's discussion of the anti-polygamy provisions in many state constitutions illustrates the chaos that would result if all enactments that allegedly deprive a group of “equal” political access must survive the rigors of strict judicial scrutiny. No doubt for these reasons, although the majority opinion in Romer contained broad language condemning the Colorado enactment for making it “more difficult for one group of citizens than for all others to seek aid from the government,” the Court's conclusion was that the enactment “lacks a rational relationship to legitimate state interests.” That is the core standard of rational-basis review. CITE

Furthermore, quoting the minority to limit the majority has something of a bogus feel, especially when there is such strong disagreement between them. While it is certainly true the Romer majority settled on rational basis review, it is nevertheless also true that the court then proceeded to analyze Amendment 2 along lines startlingly similar to strict scrutiny: over- and underinclusiveness, and fit between purpose and means. CITE. This was presumably not a mere oversight or scrivener’s error. Therefore, while they Eighth Circuit may have applied the “core standard of rational-basis review,” in doing so it ignored the teachings of Romer.

The court, in establishing just how deferential it will be, quotes Heller v. Doe’s precept that “laws defining marriage as between a man and a woman have strong presumption of validity.” CITE. While this may be historically true, it does not fully address Section 29’s very broad second sentence.

The court then went on to apply rational basis review as it saw fit. It noted that historically, marriage has always been “the predominant concern of state [rather than federal] government,” and for that reason the court must be “particularly deferential.” CITE. Again, while the former may be true, the latter does not necessarily follow, and no caselaw is cited it to support this conclusion. Furthermore, the court does cite Pennoyer v. Neff to establish the principle that “a State “has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved.” CITE. Despite being quoted again in a a couple of other cases, this principle is clearly either wrong or an exaggeration: in Loving v. Virginia, a state miscegenation statute was overturned as violating the 14th Amendment. CITE. While overturning that statute admittedly depended upon the improper use of a suspect class, race, that is not present here, it is still critical to maintain that states do not have an absolute right to prescribe the conditions of marriage. They are absolutely limited by their own and the federal constitutions.
Nebraska’s legitimate interest, the court found, was to “steer procreation into marriage.” CITE. Society has apparently recognized that two committed heterosexuals are the optimal child-rearers. CITE. The exclusion of gay people from marriage apparently is “based on a ‘responsible procreation’ theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot.” CITE. For reasons that remain opaque to me, the court “cannot conclude that the State’s justification lacks a rational relationship to legitimate state interests.” CITE. Just offhand, it is completely unclear to me why preventing domestic partnerships and civil unions of same-sex couples would inhibit the steering of procreation into marriage, as it will likely to have no effect at all on whether a same-sex couple chooses to have a child. Second, the capacity to have children by accident has literally no rational relation to not recognizing domestic partnerships or civil unions or even permitting same-sex couples to marry. And third, it seems to trump any real “best interests of the child” standard that decides most adoption, custody, and other child-related proceedings. The court’s logic is simply beyond my comprehension. Nevertheless, while to me it lacks all basis in reality, the court applies traditional rational basis review and does no scrutinizing, and in fact asserts that so long as the question is debatable, lawmakers are allowed to use generalizations. CITE. The court provides absolutely no evidence that the issue is truly debatable beyond stark assertion, CITE, and while it cites the defendants’ and amici briefs, I cannot find support for these propositions in those documents available on Westlaw. It will have to go un-understood by me.

Citizens II also takes exception to Judge Bataillon’s finding that Section 29 is undistinguishable from Romer’s Amendment 2.

The Colorado enactment repealed all existing and barred all future preferential policies based on “orientation, conduct, practices, or relationships.” The Supreme Court struck it down based upon this “unprecedented” scope. Here, § 29 limits the class of people who may validly enter into marriage and the legal equivalents to marriage emerging in other States--civil unions and domestic partnerships. This focus is not so broad as to render Nebraska's reasons for its enactment “inexplicable by anything but animus” towards same-sex couples. CITE
I think that the scope argument is the best that the Eighth Circuit has. It is true that the Nebraska Amendment does not have as large a scope as Amendment 2. But it is also true that Section 29 targets the same class, and, in addition to merely limiting marriage to opposite-sex couples, prevents same-sex couples from advocating for benefits that affect literally every area of one’s life. That, combined with the vagueness of the second sentence, and, to my mind, extremely poor fit between the stated objectives and the means of achieving them, should bear enough resemblance to Romer to merit more thoughtful discussion than Citizens II ever proffers.

The Eighth Circuit, of course, finds that the plaintiffs’ Equal Protection claim fails on its merits. CITE.

Bill of Attainder
Article 1, Section 10, Clause 3 of the U.S. Constitution states that no state shall pass any bill of attainder. The purpose behind this ban is to prevent legislatures from enacting a “law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Nixon v. Adm’r of Gen. Servs. CITE. A bill of attainder has three necessary characteristics: it applies to easily ascertained members of a group; it inflicts punishment; without a judicial trial. CITE The court found that the first criterion was met by referencing another judicially-determined easily ascertained group, people who failed to register for the draft (Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841 (1984)). The specific group targeted by Section 29 is “people who have entered into, will enter into, or seek to enter into ‘civil unions’ and ‘domestic partnerships’ and describes the group’s conduct as ‘the uniting of two persons of the same sex.’” CITE. Neither party disputed the absence of the trial; instead the critical issue turned on whether Section 29 was punishment.

There are three inquiries necessary to determining punishment. First, whether the challenged legislation falls within the historical meaning of legislative punishment; second, whether it furthers nonpunitive purposes; and third, whether the congressional record shows an intent to punish. CITE. Historically, punishment by bill of attainder has been the death penalty, Judge Bataillon wrote, but “has also included legislative bars to participation by individuals or groups in specific employment or professions” CITE, including the aforementioned draft-dodgers, Communist Party members barred from a labor union, disqualification of a priest from the clergy, salary cuts for government employees, and lawyers barred from the practice of law. CITE. Disenfranchisement by the legislature, “singl[ing] out a group and restrict[ing] its ability to effect political change amounts to punishment and can be a bill of attainder.” CITE. The court relied heavily on U.S. v. Brown, 381 U.S. 437, 448 (1965), in which Chief Justice Warren wrote

The Court [has] emphatically rejected the argument that the constitutional prohibition outlawed only a certain class of legislatively imposed penalties: The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact. (Internal citations removed.)

Because Section 29 singles out gay, lesbian, bisexual and transsexual people and “is intended to prohibit their political ability to effectuate changes opposed by the majority,” like a bill that prevents a Communist Party member from joining a local union, Judge Bataillon ruled that it fell within the historical meaning of punishment. CITE.

Addressing congressional purpose and intent to punish at the same time, the court found that Section 29 was “intended to deny access to all levels of government to anyone who advocates for extension of benefits and protections to same-sex couples” CITE. Support for this was found in the defendants’ own brief, which argued that there is “no civil right to control the terms on which a political battle will be fought.” CITE. Judge Bataillon found that this was evidence of the intent to deny access to a specific group. CITE. The defendants were probably not helped by evidence that one of the individuals who led the petition drive to get Section 29 on the ballot said that homosexual marriages are morally inferior. CITE. The court found that there was legislative intent to punish, and that it was motivated “to some extent” by either irrational fear of or animus toward gays and lesbians.” CITE

Judge Bataillon also addressed whether Section 29 furthered nonpunitive purposes. He was skeptical of the defendants’ stated purpose of preserving the traditional definition of marriage; if that were really the true purpose, there would be no need to prohibit all forms of government protection or preclude domestic partnerships and civil unions. CITE

The court wrote that Section 29 took away plaintiffs’ formerly held rights to access freely the legislature and political process, and was clearly motivated to some extent by animus. CITE. This indicated intent to punish, but also made Section 29 distinguishable from other, nonpunitive statutes. CITE. The amendment withheld benefits and prevented the targeted group from working to obtain them, a right they had held before. CITE.

There are some problems with these arguments. First, whether or not Section 29 furthers nonpunitive purposes depends on the scrutiny given. At least two of the three cases cited by the court as examples of nonpunitive statutes challenged in bill-of-attainder claims raise some questions. In Selective Service System v. Minn. Pub. Interest Research Group, 468 US 841 (1984), young men who refused to register for the draft were denied financial aid, for what the Court found was the nonpunitive goal of making them register. If the statute at issue in that case received as much scrutiny as given Section 29 in Citizens I, it is easy to imagine that the court would have found that denial of financial aid was unlikely to make anyone register who otherwise wouldn’t. Once that purpose is questioned, it’s a short hop from there to a punitive purpose. Similarly, in U.S. v. O’Brien, 391 U.S. 367 (1968), conviction for burning a Selective Service card wasn’t punitive because the nonpunitive goal was to ensure continued availability of the cards. Surely conviction seems a little harsh, given the “nonpunitive” goal.

The purposes of Congress must not have been subjected to intense scrutiny in these cases. One questions, therefore, whether the level of scrutiny applied to the purposes of Section 29 was appropriate. It is not clear whether motivation “to some extent” by animus is enough to render Section 29 a bill of attainder, nor whether there has to be a tight fit between the stated purpose and the means chosen. These issues the court does not address.

The Eighth Circuit attacked the District Court’s holding on other grounds. The court dismisses offhandedly the characterization of disenfranchisement from petitioning their representatives as punishment. The opinion implies that imprisonment, banishment, punitive confiscation of property, and removal from employment or profession are the only methods of punishment. CITE. This is quite problematic, given the passage cited above from U.S. v. Brown, which states that any deprivation of political or civil rights can be punishment. CITE. The court completely ignores U.S. v. Brown. The Eighth Circuit also points to Section 29’s nonpunitive purpose of steering heterosexual procreation into marriage and gives it no scrutiny whatsoever. This treatment, of course, suffers from the same problem suffered by that Citizens I: there is no discussion of how much scrutiny such a purpose should be given. Citizens II gives it none at all.

Finally, the court criticizes, nay, nitpicks, Citizens I for saying that “the Bill of Attainder analysis dovetails with the… Equal Protection issues in this case.” The Bill of Attainder clause was apparently “not intended to serve as a variant of the Equal Protection doctrine.” CITE. Citizens II does not give any explanation of exactly what is the substance of the objection. Is it merely the observation that the Equal Protection analysis and the Bill of Attainder analysis yield the same result that is troublesome? What is to be done when both doctrines are relevant? The court’s criticism seems more catty than helpful or substantive.

Conclusion

While Judge Bataillon’s reasoning in Citizens I is not without its problems, the short shrift given the issues in Citizens II is neither persuasive nor comforting. One does not feel that justice has been done after reading the Eighth Circuit’s rubber-stamp of an opinion. Neither does it seem that Romer v. Evans, despite its own quirks, has been given the precedential respect that it deserves. Unfortunately, this is not atypical. No court that I have found has applied Romer positively for any proposition other than the “core standard” of rational basis review, a core standard that Romer doesn’t actually apply. Similarly, no other statute has been overturned through reliance on Lawrence v. Texas. Courts with the option of rational basis review will always find sufficient reason to uphold these irrational and harmful laws. After investigating these cases, I worry that without further guidance from the Supreme Court, Romer v. Evans, a benchmark case for the rights of same-sex couples, will prove toothless.

. . .

i wrote a 21-page paper in one day

I still have to put in the citations, but I am hoping that can wait till next week.

I wish the word shibboleth meant what I think it means, but it doesn't.

. . .

May 8, 2007

hmm

get books emailed to you for free: http://www.dailylit.com/index

. . .

May 2, 2007

more

NYU:
LHS in NYC: LWT & EW, & SG

NYC miscellany

Nebraska
La casa mia
  • year 3
  • projects (new ones start at the bottom of the page)
  • food (mostly no-knead bread pix added)
Spring Break 2007
Jeanne & Kim's wedding (pretty random selection--seem to be lots of people missing)

. . .

new photo albums

the T&R Train hit up NYC with me for the penultimate time
drinking with my lawyering crew

You have to register on my gallery site and be approved by me to view these.
There will be more albums up sooner or later.

. . .

May 1, 2007

final final

mission: take all law school finals [complete]

I didn't mind taking the tests so much as studying for them. Whole boxes of oreos, inhaled. Untold countless hours of sitting on my couch, staring at my laptop, half of them in procrastination. After each semester's long-drag-out struggle with finals was finished, I would calculate the percentage of law school then complete, usually out of pure dread of the number of finals periods I had yet to endure. Today, 99.9%. I can usually eek some nostalgia out of somewhere for almost anything gone by. Not so, finals. Don't let the door hit you on your way out.

I could tell you all you want to know about products liability right now though, and enjoy it. I have just one last paper to write and then I'm really finally final. Other, happier prospects include visits from Los Canadiens Zach and Robyn; the dressed-up and drunken Barrister's Ball; graduation, featuring visits from Carol and James and Michael and Seemee; a five-day Pittsburgh extravaganza with Shum, Diana and my new niece (!) Carolyn; and then visits from (in reverse order of past visit frequency), Harris, Sarah, Rachel, Tim, and Jessie, begun with a big party, BK style, and culminating in a long drive in a Penske with Harris and all* my worldly possessions to North Platte, NE. Good times are gonna roll all the way home.

*except what's already stored in my parents' basement, to which they will be happy to bid adieu.

. . .