The Wall Street Journal is using the Supreme Court's decision to hear a Fair Housing Act case as a springboard to resume its attacks on Assistant Attorney General for Civil Rights Thomas Perez, who has been nominated to be Secretary of Labor.
On June 17, the Supreme Court agreed to hear Mt. Holly v. Mt. Holly Gardens Citizens in Action, Inc., a Fair Housing Act (FHA) challenge to a town's redevelopment plan, which would eliminate houses occupied by low-income, predominantly African-American residents. The U.S. Court of Appeals for the 3rd Circuit ruled, consistently with every federal court of appeal that has considered the issue, "The FHA can be violated by either intentional discrimination or if a practice has a disparate impact on a protected class."
Nonetheless, in a June 18 editorial, the WSJ used the Court's accepting the case to revive an unfounded and oft-repeated right-wing attack on Perez--that he acted unethically in handling a prior Fair Housing disparate impact case--and resume its campaign to undermine effective enforcement of civil rights laws through disparate impact litigation.
Specifically, WSJ repeated the unfounded right-wing accusation that Perez struck an unethical "quid pro quo" deal with the plaintiff in Magner v. Gallagher, another FHA disparate impact case. From the editorial:
On Monday, the Justices agreed to hear a case that bears directly on the legal theory that the Justice Department's civil-rights chief has used to allege discrimination in housing. This is good news for businesses that need the law clarified, though perhaps not for Mr. Perez, who has stretched the ethical boundaries of his office to prevent such a ruling.
But Mr. Perez maneuvered to have the case withdrawn by striking a quid pro quo with the plaintiff in the case, the city of St. Paul, Minnesota.
The Administration may now also lean on Mt. Holly officials to drop the case the way Mr. Perez leaned on St. Paul. But at least the Justices are signalling that they'll make up their own mind rather than let an Administration official mess with their docket for his own political purposes.
On its opinion pages, the Wall Street Journal has been hammering St. Paul's decision to withdraw Magner vs. Gallagher from the Supreme Court as a costly way to extend a lawsuit at taxpayer expense. It has pointed to phone calls reportedly made by Assistant Attorney General Thomas Perez, who works in the Justice Department's civil rights division, to Coleman and Grewing.
The Justice Department wasn't acting alone. Many groups that typically advocate for minorities and the poor argued in written briefs that St. Paul was going down a path that could inadvertently gut the Fair Housing Act. Among them were more than a dozen state attorneys general. The Leadership Conference on Civil and Human Rights, a coalition of 200 civil rights groups, has applauded St. Paul's decision.
The WSJ also renewed its attack on disparate impact litigation, an effective tool for enforcing civil rights laws.
The case will focus on so-called disparate-impact theory, which uses statistics to allege discrimination. Mr. Perez has used the theory to shake down banks for not lending enough to minorities, despite having no evidence of discriminatory purpose.
In a video interview posted on June 17, WSJ editorial page editor Paul Gigot referred to disparate impact as "his [Perez's] theory," and asserted that the drafters of the civil rights laws "didn't want quotas, which is where we lead with this kind of things, you say, 'a-ha, we must have x percent of people get a loan. That's not the way the civil rights statutes were written." The WSJ has associated disparate impact litigation with quotas before:
Magner was the Supreme Court's first chance to rule on whether "disparate-impact analysis," which uses statistics to prove discrimination and sometimes impose racial quotas, can be used under the 1968 Fair Housing Act.
This is patently false. Disparate impact litigation enables plaintiffs to challenge apparently neutral policies that disproportionately affect one group: "For example, an employer's policy requiring all employees have the ability to lift 50 pounds could disproportionately affect women."
Both the editorial and Gigot's interview ignore the fact that disparate impact litigation is a well-established tool for enforcing civil rights laws.
Nonetheless, right-wing media have been attacking its use in the fair housing context and have shown particular hostility to disparate impact cases brought against banks engaging in discriminatory lending practices.
The June 18 editorial claims that "Perez has used the theory to shake down banks for not lending enough to minorities." In fact, the Department Of Justice secured settlements against lenders, including Wells Fargo and Countrywide, who had charged minority borrowers higher fees and rates.
Finally, the WSJ alleges that "[t] he Department of Housing and Urban Development then rubber-stamped Mr. Perez's power play by issuing a regulation sanctioning disparate impact in housing enforcement."
In fact, as the Solicitor General explained in its brief opposing Supreme Court review in Mt. Holly,
HUD's recent rule reaffirmed its longstanding interpretation of the FHA, as embodies in formal adjudications of FHA complaints. See 42 U.S.C. 3610 and 3612 (Granting HUD broad authority to conduct formal adjudication of FHA complaints.
HUD...has interpreted the FHA--including section 804(a)--to encompass disparate-impact claims in every adjudication to address the issue.
Fox News contributor and National Review columnist John Fund fabricated a link between voter suppression and IRS employees inappropriately singling out tea party and conservative groups' applications for tax-exempt status, claiming that such scrutiny by the IRS is the "real" form of voter suppression.
Fund still claims that voter suppression as commonly understood - attempts to prevent certain members of the public from voting - did not take place during the 2012 elections, despite widespread reports of such efforts fueled by restrictive voter ID laws.
On the May 21 edition of Lou Dobbs Tonight, Fund stated that "there was a lot of ridiculous charges about voter suppression in the last election even though black turnout was higher than white turnout." Fund again denied the existence of voter suppression in a May 23 editorial in the National Review Online, stating that allegations of voter suppression"proved to be twaddle."
In fact, research shows that there were widespread attempts to suppress the vote in the 2012 elections. Supporters of voter ID laws, the most common voter suppression measures, claimed that they would combat "voter fraud." However, such fraud is virtually non-existent.
Acknowledging that concern for voter fraud is a pretext, some state officials admitted that voting restrictions were enacted to influence the outcome of the election. For example, Florida officials acknowledged that efforts to curb access to early voting were intended to decrease Democratic votes:
Wayne Bertsch, who handles local and legislative races for Republicans, said he knew targeting Democrats was the goal.
"In the races I was involved in in 2008, when we started seeing the increase of turnout and the turnout operations that the Democrats were doing in early voting, it certainly sent a chill down our spines. And in 2008, it didn't have the impact that we were afraid of. It got close, but it wasn't the impact that they had this election cycle," Bertsch said, referring to the fact that Democrats picked up seven legislative seats in Florida in 2012 despite the early voting limitations.
Another GOP consultant, who did not want to be named, also confirmed that influential consultants to the Republican Party of Florida were intent on beating back Democratic turnout in early voting after 2008.
In 2008 Democrats, especially African-Americans, turned out in unprecedented numbers for President Barack Obama, many of them casting ballots during 14 early voting days. In Palm Beach County, 61.2 percent of all early voting ballots were cast by Democrats that year, compared with 18.7 percent by Republicans.
The National Review Online falsely attributed convicted murderer Kermit Gosnell's illegal practices to judges who have "declared every abortion sacrosanct."
This assertion from a May 13 editorial, "Gosnell is Not an Aberration," flies in the face of a mounting pile of judicial decisions upholding restrictions on abortion and Roe v. Wade's explicit holding that the right to reproductive choice is not unqualified.
NRO identifies judges as "enablers" of Gosnell's illegal practices, stating:
Gosnell had thousands of enablers: every judge and justice who has declared every abortion sacrosanct, every politician who has blocked meaningful regulation and oversight of the practice, and every intellectual who has furthered the notion that what resides in a woman's womb is nothing more than a meaningless clump of cells.
The Supreme Court in theory allows for the protection of infants who have reached the stage of viability, but in practice the Court has made enforcement of such laws all but impossible, which is why prosecutions of late-term abortions are exceedingly rare, even in states such as Pennsylvania, where the practice is nominally illegal.
The Supreme Court's decisions do not support this. Notably, although the Court in Planned Parenthood of Southeastern PA v. Casey, concluded that "the essential holding of Roe v. Wade should be retained and once again reaffirmed," the Court also upheld four provisions of a Pennsylvania statute that sharply restricted access to abortion--striking down only a provision requiring a woman to provide a signed statement that she had notified her spouse of her intent to seek an abortion.
Writing for a plurality of the Court, Justice Sandra Day O'Connor explicitly defined Roe's holding to include limitations on the right to terminate a pregnancy:
First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.
In keeping with these three interests, the plurality upheld an informed consent provision, pre-procedure counseling requirements, a 24-hour waiting period, and a parental consent requirement for minors. These restrictions remain on the books today, a fact that NRO recognized: "The state of Pennsylvania disallows most abortions after the 24th week of pregnancy, meaning that practically all of Gosnell's late-term abortions were crimes."
Not only did the Casey court uphold significant restrictions, it did so by a bare plurality. As Justice Harry Blackmun noted in a separate opinion, Roe hung by a thread:
Three years ago, in Webster v. Reproductive Health Serv., 492 U.S. 490 (1989), four Members of this Court appeared poised to "cas[t] into darkness the hopes and visions of every woman in this country" who had come to believe that the Constitution guaranteed her the right to reproductive choice. Id., at 557 (Blackmun, J., dissenting). See id., at 499 (opinion of Rehnquist, C.J.); id., at 532 (opinion of Scalia, J.). All that remained between the promise of Roe and the darkness of the plurality was a single, flickering flame. Decisions since Webster gave little reason to hope that this flame would cast much light. See, e. g., Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 524 (1990) (opinion of Blackmun, J.). But now, just when somany expected the darkness to fall, the flame has grown bright.
I do not underestimate the significance of today's joint opinion. Yet I remain steadfast in my belief that the right to reproductive choice is entitled to the full protection afforded by this Court before Webster. And I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light.
Justice Blackmun's prediction that the Court's composition could affect the right to choose proved prophetic. In its 2000 opinion in Stenberg v. Carthart, the Court reaffirmed the right to terminate a pregnancy when necessary to preserve a woman's health and thus struck down Nebraska's limitation on so-called "partial birth abortions."
However, only six years later in Gonzalez v.Carhart, the Court upheld a similar federal ban. As Justice Ruth Bader Ginsburg noted in her dissenting opinion, "for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health." She observed that the decision was in direct conflict with its prior precedent, and identified the Court's composition as the reason for that departure:
Though today's opinion does not go so far as to discard Roe or Casey, the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of "the rule of law" and the "principles of stare decisis." Congress imposed a ban despite our clear prior holdings that the State cannot proscribe an abortion procedure when its use is necessary to protect a woman's health. See supra, at 7, n. 4. Although Congress' findings could not withstand the crucible of trial, the Court defers to the legislative override of our Constitution-based rulings. See supra, at 7-9. A decision so at odds with our jurisprudence should not have staying power.
Nonetheless, NRO mischaracterizes the Court's decisions, which have increasingly limited Roe's reach:
Thanks to the misguided social entrepreneurship of the Supreme Court, abortion is protected as a constitutional absolute, and late-term abortions, grisly as they are, enjoy substantial protection as well.
The media have a responsibility to accurately report on the FDA's approval of Plan B emergency contraception for use without a prescription for women 15 years and older, without giving in to false right-wing narratives.
Plan B, also known as the "morning after pill," is an emergency contraceptive that prevents a pregnancy by delaying ovulation or immobilizing sperm. In April, U.S. District judge Edward Korman, a Reagan appointee, ruled that the Obama Administration had to eliminate age restrictions on access to this emergency contraception without a prescription. Recently, however, the FDA separetly approved an approval application for over the counter access for women over 15. As explained by the FDA:
On April 5, 2013, a federal judge in New York ordered the FDA to grant a 2001 citizen's petition to the agency that sought to allow over-the-counter access to Plan B (a two dose levonorgestrel product) for women of all ages and/or make Plan B One-Step available without age or point of sale restrictions. However, Teva's application to market Plan B One-Step for women 15 and older was pending with the agency prior to the ruling.
The FDA's approval of Teva's current application for Plan B One-Step is independent of that litigation and this decision is not intended to address the judge's ruling.
The Department of Justice is considering next steps in the litigation. In the meantime, the FDA took independent action to approve the pending application on Plan B One-Step for use without a prescription by women 15 years of age or older.
Nevertheless, National Review Online is already attacking this decision as a "compromise" that is "all about politics" because unrestricted access to Plan B, which it calls a "sometimes-abortifacient pill," was what the administration "wanted all along," in spite of the clear science that the judge relied on to strike down age restrictions.
Two studies have estimated effectiveness of [emergency contraceptive pills] by confirming the cycle day by hormonal analysis (other studies used women's self-reported cycle date). In these studies, no pregnancies occurred in the women who took ECPs before ovulation; while pregnancies occurred only in women who took ECPs on or after the day of ovulation, providing evidence that ECPs were unable to prevent implantation.
As Linda Greenhouse explained in a New York Times op-ed, the judge based his decision on this scientific evidence:
Judge Korman begins where discussions of emergency contraception should begin but almost never do: by defining the drug and how it works. Those challenging the requirement for employer-provided health insurance to cover birth control almost invariably train their attack on emergency contraception by calling it an "abortion pill" or abortifacient and asserting a religious objection to abortion.
But Judge Korman, citing a Government Accountability Office report that collected scientific articles on the mechanism of levonorgestrel, the synthetic hormone that is the drug's active ingredient, demonstrates that Plan B is not about abortion. It immobilizes sperm and prevents or delays ovulation. In other words, when taken shortly after unprotected intercourse, Plan B works as birth control, by preventing rather than terminating a pregnancy. (The F.D.A.-approved label for Plan B raises the possibility that the drug might also work by preventing a fertilized egg from implanting in the uterus to begin a pregnancy, but the National Institutes of Health has removed language raising this prospect from its Web site, and the N.I.H. biochemist in charge of research on contraception has said the language should also be taken off the label. Judge Korman called the prospect that Plan B might permit fertilization but prevent implantation "scientifically unsupported speculation.")
The issue is also playing out in federal courts across the country that are considering employers' challenges to regulations implementing the preventive health services provision of the Affordable Care Act. Under the ACA, employer-provided health insurance plans must cover contraception. Owners of private, secular corporations such as the Oklahoma-based Hobby Lobby have sued to block the mandate, claiming that the mandate requires them to cover abortion-inducing drugs in violation of their religious beliefs. Federal court rulings challenges to the contraception mandate have been mixed.
As Greenhouse points out , the question of whether Plan B is an abortion-inducing drug has some bearing on the contraception mandate cases:
The debate over the contraception-coverage mandate wasn't part of Judge Korman's case; that issue will be argued next month before the federal appeals court in Denver in a case brought by the owners of the Hobby Lobby retail store chain. I hope the judges who hear the Hobby Lobby case and the other such cases that are cropping up around the country are as precise as Judge Korman in defining what's at issue: evidence-based judging to go along with evidence-based medicine. If the challengers' real objection is to birth control, they shouldn't be able to hide behind the "abortifacient" label.
The question of whether for-profit corporations have religious liberty rights at all is debatable. However, if courts conclude that such religious liberty rights exist and they buy the right-wing "abortion pill" myth, employees nationwide could stand to lose reproductive health coverage.
Fox News host Megyn Kelly defended Johns Hopkins University neurosurgery professor and right-wing media darling Ben Carson's statement linking marriage equality to bestiality by claiming that Supreme Court Justice Sonia Sotomayor made similar comments during oral arguments in the Proposition 8 case, ignoring the broader context of the exchange.
From the March 29 edition of America Live, Kelly said:
But [Carson] is not alone in making comparisons to groups. I mean, when you say, who outside of a man and woman would want to be together? There's not a long list. You struggle to sort of find a group outside of gays and lesbians, and even Justice Sotomayor on the Supreme Court this week, Dan, was asking about would it open the door to polygamy, to incest being allowed. Now gays have gotten very upset before when people compare gay marriage to incestual relationships or polygamist marriages. So did he do something so far afield from what Justice Sotomayor, a Barack Obama appointee on the bench, did in open court this week?
Kelly was referring to an interchange between Justice Sotomayor and counsel for same-sex couples challenging Proposition 8, California's same-sex marriage ban, during oral arguments in Hollingsworth v. Perry on March 26. Kelly's attempt to tie Carson's degrading statement to Justice Sotomayor is misleading. In fact, Justice Sotomayor challenged Proposition 8 supporters' positions.
For example, she asked Charles Cooper, counsel for the Proposition 8 proponents, whether he could name any reason - outside of marriage - "for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them." When Cooper relied that he could not, Sotomayor followed up:
All right. If that -- if that is true, then why aren't they a class? If they're a class that makes any other discrimination improper, irrational, then why aren't we treating them as a class for this one thing? Are you saying that the interest of marriage is so much more compelling than any other interest as they could have?
In spite of this, Kelly seized upon an exchange between Justice Sotomayor asked Ted Olson, counsel for the plaintiffs, to imply that the Justice, who was appointed by President Obama, shares Carson's opinion that marriage equality could be a "slippery slope" to a parade of horribles:
SOTOMAYOR: Mr. Olson, the bottom line that you're being asked -- and -- and it is one that I'm interested in the answer: If you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people, with respect to - that could get married -- the incest laws, the mother and child, assuming that they are the age -- I can -- I can accept that the State has probably an overbearing interest on -- on protecting a child until they're of age to marry, but what's left?
OLSON: Well, you've said -- you've said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you -- if a State prohibits polygamy, it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status. [[It's selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you're picking out a group of individuals to deny them the freedom that you've said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case. There's a -- there's a different - (TR p. 47)
Justice Sotomayor did not challenge him further.
Kelly also failed to acknowledge that Justice Sotomayor was not the one who introduced this line of questioning to the Proposition 8 litigation. Proponents of Proposition 8 included it in their defense of the law:
Extending marriage to same-sex couples could increase the social acceptability of other alternative forms of intimate relationships, such as polygamy or polyamory."
Extending marriages to same-sex couples would increase the likelihood that the recognition as marriages of other alternative forms of intimate relationships, such as polyamory or polygamy, will become a judicially enforceable legal entitlement.
The proponents' Supreme Court brief warned that marriage equality could erode the meaning of marriage, and that "[t]he process of deinstitutionalization could even culminate .... in 'the fading away of marriage,' to the point that it becomes 'just one of many kinds of interpersonal romantic relationships.'
The parties who supported Proposition 8 as amici curiae explicitly warned of a slippery slope to polygamy:
The Conference of Catholic Bishops' brief stated:
Though no party to this litigation argues that multiple friendships and polygamous relationships constitute marriage, it is not evident why they would not also qualify as "marriages" under the Ninth Circuit's novel test. Moreover, if the meaning of marriage is so malleable and indeterminate as to embrace all "lifelong and committed" relationships, then marriage simply collapses as a coherent legal category.
And a brief filed on behalf of 19 states argued:
Once the natural limits that inhere in the relationship between a man and a woman can no longer sustain the definition of marriage, the conclusion that follows is that any grouping of adults would have an equal claim to marriage. See, e.g., Jonathan Turley, One Big, Happy Polygamous Family, NY Times, July 21, 2011 at A27.
Proposition 8 supporters also raised the specter of polygamy in their campaign to pass the constitutional amendment in 2010.
Early in the Supreme Court arguments, Cooper asserted that marriage equality would "redefin[e]" marriage and result in harm.
Further, Justice Antonin Scalia has repeatedly raised this argument to support his position that the Constitution does not bar discrimination against LGBT people or even protect them from being imprisoned for their relationships - which he could use to persuade justices with a less firm position on the case. The justices will consider all of the arguments put forth and the responses to them.
For example, in his dissenting opinion in Romer v. Evans, in which the Court struck down Colorado's law barring legislative, executive, or judicial action that protects persons based on "homosexual, lesbian, or bixexual orientation, conduct, practices or relationships," Scalia wrote (emphasis added):
First, as to its eminent reasonableness. The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of "animus" or "animosity" toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible--murder, for example, or polygamy, or cruelty to animals--and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries old criminal laws that we held constitutional in Bowers.
But there is a much closer analogy, one that involves precisely the effort by the majority of citizens to preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority to undermine it. The constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is "forever prohibited." See Ariz. Const., Art. XX, par. 2; Idaho Const., Art. I, §4; N. M. Const., Art. XXI, §1; Okla. Const., Art. I, §2; Utah Const., Art. III, §1. Polygamists, and those who have a polygamous "orientation," have been "singled out" by these provisions for much more severe treatment than merely denial of favored status; and that treatment can only be changed by achieving amendment of the state constitutions. The Court's disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state legislated, or perhaps even local option, basis--unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals.
The Court's stern disapproval of "animosity" towards homosexuality might be compared with what an earlier Court (including the revered Justices Harlan and Bradley) said in Murphy v. Ramsey, 114 U.S. 15 (1885), rejecting a constitutional challenge to a United States statute that denied the franchise in federal territories to those who engaged in polygamous cohabitation.
Scalia again parroted the right-wing parade of horribles message in his dissent from the 2003 Lawrence v. Texas decision, in which the Court struck down a criminal ban on consensual intimate sexual conduct:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision;
The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," Bowers, supra, at 196-the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.
Scalia has not restricted this rhetoric to his legal writings. In a December 2012 appearance at Princeton University, a student asked Scalia to defend the language in his Romer and Lawrence dissents. Scalia responded "if we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?" In defending his statement, Scalia denied that he was comparing homosexuality to murder. He further stated:
I don't apologize for the things I raised. I'm not comparing homosexuality to murder. I'm comparing the principle that a society may not adopt moral sanctions, moral views, against certain conduct. I'm comparing that with respect to murder and that with respect to homosexuality.
Seen in the context of a nearly two-hour oral argument with a long trial record and dozens of amicus briefs, it is unreasonable to suggest that Justice Sotomayor's question demonstrates that she agrees with Carson.
Fox News senior judicial analyst Andrew Napolitano wrongly asserted that the Obama administration's decision to not defend the federal Defense of Marriage Act, which denies same-sex couples more than 1,000 federal benefits and protections, is unprecedented, as previous administrations have also declined to defend statutes they considered unconstitutional.
On March 27, the same day the Supreme Court heard oral arguments in Windsor v. United States, the challenge to DOMA, Napolitano said on Fox's Happening Now:
The president has taken an oath to uphold the law. All the laws, whether he agrees with them or not. But he has forbidden the Justice Department from defending this law.
That's the question, because the government can't write a law for no reason. Every law has to have a rational basis. It has to have some reason. Any reason that makes sense. So the government would have to argue, here's the reason for the law. But the government is not in the courtroom. In fact, President Obama dispatched the government lawyers to argue against this law, which is truly unheard of in my experience.
In fact, there is precedent for refusing to defend a statute. In a letter to Congress explaining the administration's position that DOMA is unconstitutional, Attorney General Eric Holder explained:
[T]he Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a "reasonable" one. "[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity," and thus there are "a variety of factors that bear on whether the Department will defend the constitutionality of a statute." Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute "in cases in which it is manifest that the President has concluded that the statute is unconstitutional," as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).
In fact, the George W. Bush, Clinton, George H.W. Bush, and Reagan administrations all have declined to defend statutes they concluded were unconstitutional.
As advocates prepare for oral arguments in the challenge to California's Proposition 8 and the federal Defense of Marriage Act (DOMA), the right-wing media, typified by The Wall Street Journal, is wrongly pushing the idea that ruling in favor of same-sex couples would lead to the problems they claim resulted from the Court's Roe v. Wade decision, which struck down laws banning abortions.
Perry v. Hollingsworth, which will be argued on March 26, is a challenge to a California constitutional provision that excludes same-sex couples from marriage. Windsor v. U.S., to be argued March 27, challenges a federal statute, Section 3 of DOMA, which denies married same-sex couples and their families protections and benefits provided to different-sex married couples under federal law.
Some in the right-wing media have taken this opportunity to push a parade of falsehoods about marriage equality. For example, after Sen. Rob Portman (R-OH) announced his support for marriage equality, which he attributed to having an out gay son, WND editor Joseph Farah wrote "I guess we should all be grateful Rob Portman's son didn't choose to become a polygamist or a serial killer." Fox News contributor Cal Thomas promoted the same myth that marriage equality leads to polygamy.
However, with support for marriage equality rapidly on the rise, this faulty logic is not likely to persuade a majority of Americans or of the justices. The right-wing media have pivoted to another scare tactic: if the Court strikes down democratically-enacted laws, then the country will have a political and cultural backlash similar to the one they say the Court unleashed in Roe v. Wade, which struck down abortion bans 40 years ago.
Radio host Rush Limbaugh attempted to draw this comparison between Roe and the gay marriage cases. On the March 25 edition of his radio show, Limbaugh claimed that the reason "abortion so roils our culture is that it hasn't been democratically decided. The Supreme Court, nine people in black robes just decided one day that abortion is in the Constitution, and that has led to constant acrimony."
Former federal Judge Michael McConnell invoked a similar argument when he wrote in an op-ed for The Wall Street Journal:
We learned from Roe v. Wade that the Supreme Court endangers its own legitimacy and exacerbates social conflict when it seeks to resolve moral-legal questions on which the country is deeply divided without a strong basis in the text of the Constitution. The court sometimes intervenes when the legislatures of the 50 states are approaching a consensus. When it jumps into a live political controversy, the justices look like they are acting like legislators.
A March 25 Wall Street Journal editorial states that "the two cases before the High Court are less about the institution of marriage than the sanctity of democratic institutions and the proper role of the courts." It warns against the Justices interrupting "the give-and-take on contentious moral and social issues the Constitution is designed to encourage." It compares this possibility to abortion:
The Supreme Court does not have a good record legislating cultural change. A ruling on behalf of same-sex marriage could enshrine Hollingsworth and Windsor with Roe v. Wade, the 1973 abortion decision that imposed a judicial diktat even as laws in many states were liberalizing. Instead of finding a rough consensus inside the political mainstream, abortion became an all-or-nothing combat that still rages.
This characterization of abortion laws 40 years ago is flatly inaccurate. As Linda Greenhouse, a veteran Supreme Court writer and lecturer at Yale Law School, and Yale Law Professor Reva Siegel wrote,
Before Roe, despite broad popular support, liberalization of abortion law had all but come to a halt in the face of concerted opposition by a Catholic-led minority. It was, in other words, decidedly not the case that abortion reform was on an inevitable march forward if only the Supreme Court had stayed its hand.
After Roe: The entanglement of abortion in party realignment explains how, over time, Republicans and Democrats came to switch position on the abortion issue, leaders before base, and assume their current polarized positions on abortion, an evolution that took nearly twenty years after the Court handed down Roe. Our paper argues that when you line up the evidence, political realignment better explains the timing and shape of political polarization around abortion than does a court-centered story of backlash.
To the question of whether one can avoid conflict over such issues by avoiding courts, the answer from an accurate pre-history of Roe v. Wade is: no. The abortion conflict escalated before the Supreme Court ruled.
And because a strong majority of Americans believes that Roe should not be overturned, Roe might not be a particularly persuasive cautionary tale.
National Review conservative legal commentator Ed Whelan attempts to pick apart the plaintiffs' briefs in Hollingsworth v. Perry, the challenge to California's anti-marriage equality Proposition 8 that the Supreme Court will hear on March 26, by recycling anti-gay smears fueled by the right-wing media that gay marriage is harmful and sexual orientation is not permanent.
Whelan's series of posts, which criticize the plaintiffs' brief and attempt to catch Supreme Court litigators David Boies and Ted Olson distorting facts and testimony, baselessly assert that recognizing same-sex couples' right to marry causes harm, and that in spite of scientific consensus and the experience of millions of same-sex couples, the permanence of their sexual orientation is up for debate.
In his three posts, Whelan sets out fourteen points from the plaintiffs' brief that he identifies as myths and distortions. In his most recent post he attempts to debunk the fact that sexual orientation is a stable characteristic (in other words, disputing whether gay people, per se, exist at all) by stating, "Ample trial evidence demonstrates the lack of scientific support for the notion that homosexuality is a trait that a person is born with." Meanwhile, the amicus brief submitted by the American Psychological Association, the American Medical Association, The American Psychiatric Association, and several other organizations note that "scientific evidence strongly supports the conclusion that homosexuality is a normal expression of human sexuality."
Whelan claims that the plaintiffs' own expert - Professor Gregory Herek - acknowledged that "sexual orientation ... may vary throughout the course of a lifetime." However, a comprehensive reading of his testimony complicates this response. Herek, a psychology professor at University of California Davis, testified at length about the challenges of defining sexual orientation, and acknowledged that by the model in the study proponents cited - which defined sexual orientation as the "cumulative experiences of interaction of erotic fantasy, romantic-emotional feelings, and sexual behavior directed toward one or both genders" [[,]] - it is accurate to say that sexual orientation may vary
Herek's response was not based on his own, or the plaintiffs' own, conception of sexual orientation.
In support of his argument that sexual orientation is not an immutable trait, Whelan continued to take Herek's testimony out of context by focusing on his statement that "we don't really understand the origins of sexual orientation in men or women." However, a comprehensive reading of his testimony demonstrates that it in response to the question, "Do people choose their sexual orientation, Herek asserted "they have experienced no choice or very little choice about that.
Whelan also recycles the right-wing myth that extending marriage rights to same-sex couples causes harm. In point 6, for example, Whelan takes issue with plaintiffs' statements that the Proposition 8 proponents "never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry" and that plaintiffs claim that "Proponents suggest no reason to believe - indeed, they make no argument at all - that prohibiting same-sex couples from entering relationships designated 'marriage' will make it more likely that heterosexual couples in California will marry."
In response, Whelan claims that "the testimony and volumes of documentary evidence that Prop 8 proponents offered at trial" show that allowing for same sex marriage would ultimately result in the "deinstitutionalization" of marriage.
The assertion is not responsive to the plaintiffs' argument--there was no evidence that Proposition 8 would deter heterosexuals from marrying.
In his next attempt to identify a harm that would result from marriage equality, Whelan takes issue with the plaintiffs' statement that the proponents produced no data or studies "tending to show" that marriage equality causes harm. In response, he again uses one of the plaintiffs' experts, Professor Lee Badgett, to cite an accelerated long-term decline in the marriage rate of the Netherlands, the first country to redefine marriage in 2001.
The problem is that the facts do not show, nor did Badgett testify, that marriage equality caused the decline in marriage in the Netherlands. At trial, Badgett was asked to read a passage from a defense expert's deposition, which she did:
"In the Netherlands the total number of heterosexual marriages has slowly fallen since the introduction of same-sex marriage. Like most western countries, this is no doubt part of a larger secular trend." (emphasis added).
On cross-examination, Badgett again made clear that data on the number of different-sex marriages in the Netherlands "doesn't tell you anything about what the impact of allowing same-sex couples to marry is."
Badgett has stated her position in previous writings. In a 2004 article criticizing an analysis by Stanley Kurtz that sparked the myth that same-sex marriage affected marriage and unwed births in Europe, Badgett wrote:
Kurtz is also mistaken in maintaining that gay unions are to blame for changes in heterosexual marriage patterns. In truth, the shift occurred in the opposite direction: Changes in heterosexual marriage made the recognition of gay couples more likely. In my own recent study conducted in the Netherlands, I found that the nine countries with partnership laws had higher rates of unmarried cohabitation than other European and North American countries before passage of the partner-registration laws. In other words, high cohabitation rates came first, gay partnership laws followed.
Whelan also challenges thefollowing statement in plaintiffs brief:
"[W]hen the district court asked [proponents'] counsel point blank what harm would come to opposite-sex married couples if gay men and lesbians could marry, Proponents' counsel mustered only 'I don't know. I don't know.'" Brief at 45.
He claimed that the plaintiffs misrepresented thecomment and included the full quotation from the trial transcript, as set forth in Whelan's own amicus brief:
[T]he state and its electorate are entitled, when dealing with radical proposals for change, to a bedrock institution such as this to move with incrementally, to move with caution, and to adopt a wait-and-see attitude.
Keep in mind, your Honor, this same-sex marriage is a very recent innovation. Its implications of a social and cultural nature, not to mention its impact on marriage over time, can't possibly be known now.
Whelan goes on to state that the proponents did not have to prove harm at that stage of the proceedings, but this does not support his statement that the quote in plaintiffs' brief misrepresents what counsel said.
It is not surprising that Whelan would ground his criticism of the plaintiffs' brief in the right-wing myth that marriage equality is harmful. In fact, he employed the right-wing slippery slope argument at a Senate Judiciary Committee hearing on the Respect for Marriage Act, which would repeal the Defense of Marriage Act. He claimed that "The principles invoked by advocates of same-sex marriage in their ongoing attack on traditional marriage threaten to pave the way for polygamous and other polyamorous unions."
His attempt to bolster his sole legal argument--that the Court's prior cases on the fundamental right to marry does not apply to same-sex marriage, through inaccurate characterizations of sexual orientation and the impact of marriage equality--doesn't hold water.
News outlets have largely ignored the legal barriers that the Supreme Court has erected in between injured consumers and access to compensation - including a current case that could give big business the power to place themselves beyond the reach of federal laws by preventing consumers and small businesses from bringing class action lawsuits.
That's surprising, considering the extensive media coverage of the story of 3,000 passengers on Carnival Cruise Line's Triumph who spent five days floating in the Gulf of Mexico with no power or plumbing, and finally disembarked in Mobile, Alabama. On February 20, attorneys for the passengers filed a class-action lawsuit against Carnival, claiming that the cruise line acted negligently by sending the Triumph to sea when they knew the ship had mechanical problems. It was the second major crisis on a Carnival ship in a year.
Thanks to a series of Supreme Court cases limiting class actions and upholding arbitration agreements, those passengers are facing an uphill climb with their lawsuit. Carnival's ticket contract itself contains an arbitration clause requiring customers to waive their right to bring claims against Carnival in court. It also includes a "class-action waiver" that states:
This contract provides for the exclusive resolution of disputes through individual legal action on guest's own behalf instead of through any class action."
If enforced, a class-action waiver creates a David and Goliath dynamic. As legal expert Dahlia Lithwick has explained, class actions often level the playing field between individual claimants and big defendants such as employers. The Supreme Court has made it increasingly difficult to pursue class actions. For example in Wal-Mart v. Dukes, the Court rejected a class-action suit brought by female Wal-Mart employees who claimed they were subjected to discrimination in pay and promotions. The practical result: Wal-Mart employees would have to jump over significant hurdles to pursue class action; otherwise, they are forced to go it alone against the number two corporation in the Fortune 500. Lead plaintiff Betty Dukes explained that the Court took "an opportunity to give corporate America a huge advantage over everyday American citizens."
These decisions, which leave plaintiffs to go it alone against corporations and waive their day in court based on agreements they didn't have an opportunity to negotiate, set the stage for an upcoming Supreme Court case that could shift the balance even further in favor of big business, allowing them to use these form agreements as an end run around federal law.
On February 27, the Court will hear oral arguments in American Express Co v. Italian Colors Restaurant, in which it will weigh whether class-action waiver provisions in an arbitration clause are enforceable even when refusing to allow the class action to go forward would make it functionally impossible to vindicate federal statutory rights at all.
Businesses that accept American Express charge cards must agree to a class-action waiver and waive any other means of sharing the cost of legal proceedings against the company. American Express insists that businesses accept their unpopular credit cards if they want to accept the popular ones, which the businesses claim is a "tying arrangement" that violates the antitrust laws. Because pursuing antitrust claims is expensive, the cost of arbitrating an individual case would dwarf any possible recovery--meaning that if the plaintiffs cannot proceed as a class or share expenses, the antitrust claim is dead in the water.
The US Court of Appeals for the Second Circuit held that Am Ex's arbitration agreement, which includes a class-action waiver, was unenforceable because it would prevent the merchants from effectively vindicating their federal statutory rights. Importantly, the court noted that enforcing the waiver would prevent an antitrust claim from being litigated at all:
Amex has brought no serious challenge to the plaintiffs' demonstration that their claims cannot reasonably be pursued as individual actions, whether in federal court or in arbitration, we find ourselves in agreement with the plaintiffs' contention that enforcement of the class action waiver in the Card Acceptance Agreement "flatly ensures that no small merchant may challenge American Express's tying arrangements under the federal antitrust laws."
The bottom line is this: if the Supreme Court reverses the Second Circuit's decision, small businesses and consumers could be forced to waive--through form contracts--longstanding statutory rights in order to do businesses with large corporations. This gives corporations significant power to evade federal law. As the Supreme Court explained in Reiter v. Sonotone (1979), even though the Department of Justice may also enforce antitrust laws, private litigation is important because
These private suits provide a significant supplement to the limited resources available to the Department of Justice for enforcing the antitrust laws and deterring violations. Indeed, nearly 20 times as many private antitrust actions are currently pending in the federal courts as actions filed by the Department of Justice.
When the Court strikes down or blunts the power of duly-enacted legislation, legal commentators - conservative and progressive alike-- often invoke the term "judicial activism," charging that the Court overstepped its bounds. But in AmEx, the Court will consider whether corporations can wield that power. While big business and consumer groups recognize what's at stake -the U.S. Chamber of Commerce and Public Citizen both filed amicus briefs- the media apparently does not. Even The Wall Street Journal's Law Blog's post on the Carnival Triumph debacle, while accurately noting that the cruise industry has adopted mandatory arbitration clauses, didn't note that the scope of these clauses is currently before the Court.
There are exceptions, such as conservative attorney Theodore H. Frank. Frank is an adjunct fellow at the Manhattan Institute's Center for Legal Policy, which according to its website "has been a leader in analyzing class action abuses and developing solutions."* In an Investor's Business Daily op-ed, Frank attempts to turn attention away from the problem of illegal tying arrangements, pointing out that the real problem is class actions themselves. He writes "[i]n reality, consumers would be better off if they had the right to promise that they would avoid bringing the class action in the first place." According to Frank, lawyers who pursue class actions are interested because these cases are lucrative for them.
Former Solicitor General Paul Clement, who is representing the merchants in AmEx, doesn't see it that way. His firm often represents big corporate clients like Exxon Mobil. Clement, whose strong oral argument performance attacking the Affordable Care Act was the talk of the last Court term, and who is in the headlines again for defending the Defense of Marriage Act before the Court this term, is not a class-action attorney. He has made clear that the case is not about attacking arbitration provisions, but preserving the merchants' statutory rights: "This is thus truly a case in which the alternative to litigation is not arbitration, but nothing."
Frank also claims that those who are concerned about the dangers of reversing the Second Circuit's decision are "Chicken Littles," and recasts the AmEx case as a struggle to preserve arbitration itself. That would probably come as a surprise to the group of professional arbitrators, mediators, and arbitration professors who filed an amicus brief in support of the merchants. They state that
[American Express's] argument that the [Federal Arbitration Act] requires enforcement of an arbitration clause even where it is undisputed that the consequence is that the resolution of the underlying claims in arbitration is impossible, if adopted, will reduce public confidence in the arbitration system and leave it a more weakened institution.
With less than a week left until oral argument, AmEx is something of a sleeper case. But that has everything to do with inadequate media coverage and nothing to do with how much is at stake.
*This post previously linked to reports that Mr. Frank's organization, the Center for Class Action Fairness, was funded by Donors Trust that Media Matters for America did not independently verify.
Commemorating the 40th anniversary of Roe v. Wade in its editorial "An Enduring Wrong," the National Review Online mischaracterizes the ruling, claiming that the decision and its companion case, Doe v. Bolton, made abortion "legal at any stage of pregnancy for any reason, which is a considerably more liberal policy than that encoded in the law of any state or supported by public opinion then or now."
In fact, the NRO got it wrong. In Roe v. Wade, the Supreme Court made clear that states may limit access to abortion:
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.
In Roe, the Court also recognized the state's interest in protecting "potential life.":
In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.
[A] State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.
NRO criticized The New York Times for reporting on January 23, 1973 that the decision pertained only to restrictions on abortions in the first trimester. It stated that the Times got "the story wrong from the beginning." In fact, the Roe opinion states that as a pregnancy progresses, the right to terminate a pregnancy is balanced by the state's interest in protecting the fetus:
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life [p165] may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests.
Doe v. Bolton, which was decided the same day as Roe, also makes clear that states may enact restrictions on abortion:
Roe v. Wade, supra, sets forth our conclusion that a pregnant woman does not have an absolute constitutional right to an abortion on her demand. What is said there is applicable here, and need not be repeated.
NRO's argument, though unfounded, is not new. Bench Memos Blog's Ed Whelan resurrects it every year in his "This Day in Liberal Judicial Activism" post, stating that:
Roe and Doe v. Bolton (decided the same day) impose on all Americans a radical regime of essentially unrestricted abortion throughout pregnancy, all the way (under the predominant reading of Doe) until birth.
"Unrestricted abortion throughout pregnancy" is not the "predominant" reading of Roe and Doe, and it has not been adopted by the Supreme Court. In fact, the Court [['s]] restated the opposite in Planned Parenthood v. Casey, a case that upheld several abortion restrictions but preserved Roe's basic holding:
Even the broadest reading of Roe, however, has not suggested that there is a constitutional right to abortion on demand. See, e.g., Doe v. Bolton, 410 U.S., at 189 . Rather, the right protected by Roe is a right to decide to terminate a pregnancy free of undue interference by the State.
NRO's characterization of Roe is simply false.