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.
In a January 15 editorial, The Oklahoman uncritically pulls material from a pro-corporate lobbying group's website in support of the proposition that "ridiculous" lawsuits are rampant in the U.S. However, the editorial fails to mention that the source of this information, the Institute for Legal Reform, has spent millions in successful lobbying efforts to close the courthouse door to plaintiffs seeking redress for real harms.
The Oklahoman draws examples from the Faces of Lawsuit Abuse website, a project of the U.S. Chamber of Commerce's legal arm, the Institute for Legal Reform. The site's front page showcases a video about gas can manufacturer Blitz USA, detailing how "a wave of costly litigation took its toll, and lawsuits finally drove the company out of business."
As The New York Times pointed out, the video "ducks the complexities of the product liability cases surrounding Blitz by making no mention of the dozens of casualties linked to explosions while people used the cans in recent years." In fact, a jury in one of the cases awarded the plaintiffs $4 million in damages for the injuries the gas cans caused.
By accepting the Institute for Legal Reform's PR campaign lock, stock, and barrel, The Oklahoman failed to disclose that it is a powerful legal arm of the corporate lobby, spending $6.03 million on federal lobbying in one fiscal quarter, including for limits on products liability cases.
For example, ILR promoted a bill, modeled after conservative American Legislative Exchange Council legislation, to limit relief for individuals harmed by asbestos. The Chamber and ILR also pushed an NRA-backed law to shield gun manufacturers from liability for the harms their products cause. This powerful lobby has promoted flawed analysis in support of its attacks on access to justice for plaintiffs. ILR and the Chamber also develop and promote initiatives to limit access to justice at the state level.
The Chamber has not only been active in legislatures, but before the courts--where they are winning. The Chamber applauded the Supreme Court's Wal Mart v. Dukes decision, in which the court barred female employees of the company from joining together to sue the company for widespread discrimination in pay and promotions. The decision will make it significantly more difficult for individual workers to bring civil rights cases against large employers--an outcome that the Chamber called "the most important class action case in more than a decade."
Right-wing attorney Jay Sekulow appeared on Fox News to argue that for-profit corporation owners' religious beliefs trump federal law when it comes to contraception, even while they take advantage of the legal benefits corporate status provides.
On America's Newsroom, host Bill Hemmer featured Jay Sekulow of the American Center for Law and Justice, who is also known for claiming that President Obama was threatening military voters and promoting laws outlawing homosexuality. The show gave Sekulow a platform to promote attacks on the Affordable Care Act's provision requiring employer-provided health plans to include contraception coverage.
Sekulow's group and others have sued to block the mandate on behalf of corporations seeking to deny access to contraception on religious grounds. The results have been mixed. The U.S. Court of Appeals for the Seventh Circuit blocked the law as it applied to the owners of Korte & Luitjohan Contractors.
The U.S. Court of Appeals for the Tenth Circuit, however, denied Hobby Lobby, an Oklahoma-based corporation, the relief it sought.
In discussing the Hobby Lobby case, Hemmer asked Sekulow to explain "why you believe legally they win this." Unchallenged, Sekulow touted his court wins on other cases regarding the enforcement of the mandate, stating:
Well, for the same reason, Bill, we've won three cases that we brought so far. And that is the right of free exercise of religion, applies to these companies that have principles that the owners of these companies have religious convictions and to force or compel someone to violate their conscience is exactly what the free exercise clause of the constitution of the United States was designed to prevent.
But Hemmer failed to push back on Sekulow's claims and provide an accurate picture the current state of the law. In fact, the highest level ruling reached the opposite conclusion. Supreme Court Justice Sonia Sotomayor (sitting as circuit justice reviewing decisions of the U.S. Court of Appeals for the 10th Circuit), denied Hobby Lobby's request for an injunction relieving them of their obligation to provide this coverage to their thousands of female employees. She noted that:
This Court has not previously addressed similar [Religious Freedom Restoration Act] or free exercise claims brought by closely held for-profit corporations and their controlling shareholders alleging that the mandatory provision of certain employee benefits substantially burdens their exercise of religion.
Many legal scholars have also rejected Sekulow's and Hobby Lobby's position.
Hemmer also gave Sekulow a pass on his assertion that corporations, which are not human beings, have religious rights like people do. This presented an imbalanced and inaccurate view not only on religious liberty but also on corporate law. As Supreme Court analyst Lyle Denniston observed:
[B]usiness people who form corporations do so to keep themselves independent from it: one of the main advantages of the corporate form is that the owners are not targeted when their company gets sued.
Hobby Lobby and Sekulow are trying to have it both ways: when a creditor comes to collect a bill or a party sues the corporation they own, they don't have to pay because a corporation is separate. Then they turn around and claim that they are not obligated to abide by a law they don't like because they and the business are one and the same. If courts adopted the theory that corporations have religious rights, corporate owners could game the system, hiding behind corporate status when convenient and discarding it when it's not.
The Wall Street Journal argued in an editorial that the National Labor Relations Board, which is charged with protecting workers' right to organize, has overstepped its authority to do unions' bidding regardless of the law--particularly in its approach to employers' social media policies. A review of the NLRB Office of the General Counsel's memos, however, demonstrates that the WSJ's characterization of the body's policies is without merit.
The January 6 editorial, titled "Another NLRB Power Grab," accused the body of becoming "a wholly-owned subsidiary of Big Labor, rather than a neutral arbiter of fair labor practice." In support of this claim, the WSJ presented blatantly false statements about the NLRB's approach to employers' social media policies:
Also insidious is the NLRB's effort to regulate how companies handle social media. In the Facebook and Twitter age, employers have an obvious interest in rules that prohibit their employees from defaming colleagues, or broadcasting confidential information. The NLRB has nonetheless decided that even reasonable restrictions impinge on concerted activity.
In fact, both the NLRB's Office of the General Counsel (OGC) and the Board itself have explicitly stated that employers may set certain limits on their employees' social media activities as long as they do not prohibit activities protected under the National Labor Relations Act. Three OGC memos provide guidance about what types of employer policies pass muster under the NLRA.
In the most recent memo, dated May 30, 2012, the OGC examined seven cases about employer social media policies and concluded that one of the employer policies was lawful in its entirety, while some provisions of the remaining six policies "are overbroad and thus unlawful under the National Labor Relations Act."
Although the OGC concluded that some aspects of a confidentiality policy were invalid, it also recognized that a policy that "admonishes employees to '[d]evelop a healthy suspicion[,]' cautions against being tricked into disclosing confidential information, and urges employees to '[b]e suspicious if asked to ignore identification procedures' " is lawful.
Nor did the OGC state that all social media posts are "concerted activity" that is protected under the NLRA. In fact, although it concluded that employees' Facebook posts can be protected if they meet the requirements applicable to communications outside of social media, it defined such posts narrowly. In a January 2012 memo, the OGC restated the NLRA requirement that protected activity must be "concerted," meaning that it seeks to involve other employees in a discussion of the terms and conditions and employment, and advised that an employee's online discussion would not be protected just because fellow employees "liked" a post.
Policies that are sufficiently clear and not limited in scope can pass muster in their entirety. The OGC advised that policies "that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity, are not unlawful."
In short, the WSJ's characterization of the NLRB's positions on social media bears no resemblance to the guidance it has publicly shared.