David Boies on Marriage Equality

I recently had the opportunity to speak with attorney David Boies about his work in the realm of public interest law and marriage equality. Our conversation, along with a narrative of his career from the hallowed biglaw halls of Cravath, Swain & Moore, to the U.S. Supreme Court in Hollingsworth v. Perry, and then to the Fourth Circuit with Bostic v. Schaefer, was published by Insider Louisville.

Boies will appear at the Kentucky Author Forum on Tuesday, March 24, for an interview by author and legal commentator Jeffrey Toobin to discuss the documentary The Case Against 8 and Boies' book he co-authored with colleague Ted Olson, titled Redeeming the Dream: the Case for Marriage Equality.

Amicus Brief Profile: Constitutional Accountability Center

In a short series, I will profile several individual amicus briefs filed in the same-sex marriage cases currently consolidated before the U.S. Supreme Court and slated for oral argument on April 28, 2015.

In the same-sex marriage cases currently before the Supreme Court (consolidated as Obergefell v. Hodges), already nearly one hundred amicus (or "friend of the court") briefs have been filed. The vast majority so far are in support of the petitioners - same-sex couples from Kentucky, Michigan, Tennessee, and Ohio. Amicus briefs in favor of the respondents - the states - are due at the end of March.

One of the amicus briefs in favor of the petitioners was filed by the Constitutional Accountability Center through counsel Elizabeth B. Wydra, Douglas Kendall, David Gans, and Judith Schaeffer.

The brief tackles three constitutional topics: the Supremacy Clause of Article IV, the Equal Protection Clause of the Fourteenth Amendment, and the general conflict between democracy and constitutional provisions.

The second section specifically focuses on the "text and history of the Equal Protection Clause" to discern its "original meaning." Why is this significant? It is significant because discerning the "original meaning" of a law or constitutional provision is one of the chief concerns of the Originalist approach to judicial interpretation, an approach followed by Supreme Court Justices such as Antonin Scalia and Clarence Thomas.

Based on their past dissents in cases such as Lawrence v. Texas and U.S. v. Windsor, observers expect Justices Scalia and Thomas to oppose the idea that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples. So this amicus brief reads as though it is specifically appealing to their perspectives and approaches to the question.

As a quick note without going down a deep explanatory rabbit hole, be aware that there is debate whether Originalism should focus on the "original intent" of the people who wrote, passed, or ratified a law compared to the "original meaning" of the words that actually comprise the law. Justice Scalia, for example, has said that the correct approach is to discern the meaning rather than the intent.

With Justice Scalia's perspective apparently in mind, the amicus brief tackles the original meaning of the Fourteenth Amendment and cites the Congressional record from 1866 (the period of time when the Amendment was being debated and framed).

The amicus brief argues that the meaning of the words, written quite broadly, were originally meant to be interpreted broadly:

Attempting to clarify the "original meaning" of the Fourteenth Amendment is not just a ploy to sway certain Justices. It's also directly responsive to the Sixth Circuit's opinion which ruled in favor of the state marriage bans and led to the current Supreme Court case. Judge Jeffrey Sutton of the Sixth Circuit wrote in that opinion that "the people who adopted the Fourteenth Amendment [never] understood it to require the States to change the definition of marriage." DeBoer v. Snyder, 772 F.3d 388, 403 (6th Cir. 2014).

The amicus brief criticizes this as the wrong analysis. What matters is the meaning of the text, "not the subjective expectations of the lawmakers in Congress or the people in the states who ratified the document." After all, the brief argues, the wording of the Amendment is broad and contains no enumeration of the rights it protects.

Though ratified just after the Civil War, the Fourteenth Amendment's text was designed by its framers to formally codify the expansive liberty proclamation of the Declaration of Independence:

CAC 2.jpg

The brief points out that the perception among framers like John Bingham was that the Fourteenth Amendment meant equal protection of "life and liberty and property" of all Americans regardless of any classification state laws may draw.

Ultimately, the brief concludes that the Sixth Circuit was wrong because the original meaning of the Fourteenth Amendment's text, rather than the original intent of its individual framers who may not have, 150 years ago, conceived of a future where same-sex couples would seek civil marriage rights, should control. The Supreme Court should read a "sweeping, universal guarantee of equality," rather than any narrower interpretation that enumerates some liberty interests but resigns the rest to state democratic control.

This focus on the history and meaning of the Fourteenth Amendment (as compared to the history of homosexual discrimination, for example) is not unique to this brief. Others address the same topic. I will profile at least one more in a future installment.

Human Lives as Abstract Thought Experiments

A passage from Jonathan Chait's controversial New York Magazine essay on the creeping threat of "political correctness" in liberal journalist and academic circles solidified thoughts I've been having about privilege and white intellectualism for some time now. These thoughts also apply to lawyers.

If you have a lot of time to kill, you can read Chait's just-shy-of-5000 words essay here. Excellent critical responses are available from Glenn Greenwald and Alex Pareene.

After publishing a hostile internal exchange among women journalists in a private online group (to which Chait was not originally privy to, obviously, but heard about second-hand from a concerned anonymous source), Chait complains that calls for racial and gender inclusiveness in discussions are really just a form of "policing" and interfere with free expression and debate.

He goes on to write:

The p.c. style of politics has one serious, possibly fatal drawback: It is exhausting. Claims of victimhood that are useful within the left-wing subculture may alienate much of America.

It is impossible for reasonable people to deny that many have been and are currently victimized by American government, law, and social forces. Slavery, Jim Crow, the denial of suffrage to women, Native American genocide and isolation, discriminatory marriage laws...the list goes on.

White men like Chait and me haven't been the target of much injustice, however. We've had it pretty good overall. Sure, there is individual hardship and suffering (neither Chait nor I are billionaires or kings), but white men enjoy considerable privileges denied to others. We occupy a social and civic place of deference and power to which other groups such as women and racial minorities can only dream.

As a result, white, educated men like Chait and me tend to view important social questions through an abstract lens. Questions of justice and policy are intellectual exercises in which we can ponder options of various weight and validity from a detached, academic distance.

For example, the question of whether gay people should be allowed to be married is a question that is in some ways purely academic to someone like me. I'm a straight white man married to a straight white woman. The law has always allowed me to marry so I take it for granted. I am not someone who has ever been denied the right to marry because my skin color, my gender, and my orientation have always conformed to the legal and social status quo. I can view the question of gay marriage, therefore, from a detached, intellectual distance. The answer to that question, yes or no, does not directly affect me personally. My marriage remains unaffected by the outcome. My rights are not in question.

But for two men turned away from the county clerk's office and who are denied the right to marry, the question is not abstract or academic at all. It is deeply personal. On some level, their basic personhood - their right to participate fully in our civic culture - has been denied. They have been victimized, and it is impossible for them to view the question of their own humanity in an abstract, intellectual way.

Which takes me back to Chait's dismissal of "claims of victimhood" which are "useful within the left-wing subculture." Chait seems to suggest that such "claims" are something akin to debate tactics. A rhetorical weapon used to score points in an abstract tussle of intellects.

This passage immediately made me think of the familiar cry of racist whites who stalk online newspaper web sites. The mere mention of racial injustice by anyone immediately inspires accusations of "playing the race card," a sinister and unfair trump exploited by black people to shut down otherwise fair debate with good-natured white folks. If you view discussions about social justice as nothing more than an academic exercise or an abstract debate, this makes sense.

But if you don't enjoy such privilege - if the outcome of a "debate" on race is that your son or your father or you are shot in the street by police with impunity, for example - trying to illuminate the racial injustice from which you suffer is not a mere debate tactic or an unfair rhetorical trick. It is literally a matter of life and death. You're not playing a card, you're begging for acknowledgment and justice. You're begging to not be shot dead, unarmed in the street, simply because of who you are.

To Chait and other white men who bemoan the imminent decline of civil free expression, not being able to suggest literally any idea without being immediately criticized for it is a sign of a society gone awry.

Chait used to write for The New Republic, a bastion of center-liberal thought that was at one point considered the most influential magazine in elite D.C. circles. The magazine, though lauded by white male intellectuals for its thoughtfulness, became infamous for the casual and unrepentant racism of its former publisher Martin Peretz. TNR advocated for welfare reform during the presidency of Bill Clinton by exploiting racist and sexist stereotypes, for example.

Recently, after TNR came under new ownership and much of its editorial staff quit in protest, Ta-Nehisi Coates, an African-American author at the Atlantic, took the publication to task for its racist legacy. Among TNR's worst moments was a lengthy "debate" over the validity of Charles Murray's "Bell Curve" hypothesis, which holds that blacks, as a whole, have lower I.Q.s and intelligence than whites due to genetic predispositions.

Former TNR editor Andrew Sullivan took offense to Coates' negative portrayal of his old magazine. You see, Sullivan argued, TNR wasn't racist because it fostered an even debate about the Bell Curve, not a one-sided endorsement of it:

I completely respect those who believed that the right approach was to ignore [the Bell Curve] entirely and treat it as a pariah text; or to publish only definitive, devastating take-downs. But I hope that an issue-long, 28-page debate on the subject can also be seen as a legitimate alternative option, especially if you’re on the liberal part of the left.
It is an axiom of mine that anything can be examined and debated – and that the role of journalism is not to police the culture but to engage in it forthrightly and honestly.

This is an attitude that Jonathan Chait clearly shares. The reason they're so comfortable examining and debating "anything" - including the suggestion that black people are subhuman - is because they're part of a grand "liberal tradition." It's also because they're white men, and somehow the argument that they are genetically subhuman never makes the list of topics to intellectually discuss.

Now the mandatory disclaimer: I, too, think debate should be free and open and confront complicated, controversial topics. That said, I depart from Chait insofar that calls to be mindful of privilege and those victimized by our society and justice system somehow shuts down that debate. If anything, it helps illuminate and educate unvictimized people to the plights of those less fortunate. It is a good thing. It is valuable.

As Greenwald and Pareene explain, much of Chait's frustration is really just a result of no longer feeling untouchable atop the social and intellectual totem pole as a white man with extensive academic and journalistic credentials. But his frustration is also borne from a sense of inconvenience. From being required to take stock of himself and his own biases before making certain arguments or entertaining certain ideas (like the subhuman stature of black intellect).

Too often our government, our legal system, and our halls of academia ignore the voices of the marginalized and oppressed. They all remain, to this day, dominated by white men, most of them wealthy. And make no mistake, there are many marginalized and oppressed people in this great country of ours. Including additional voices in the discussion, or simply calling attention to their mere existence, is not a chill on free expression. If anything, it is a sign that free expression is blossoming because more voices can be heard.

And always bear in mind, what may seem like an innocent, intellectual discussion to you may be a matter of life and death to someone else. For far too long the voice of just one type of person has been heard. That has caused great injustice and the stifling of debate. Including more people at the table, and criticizing the voices of those before not often criticized, is something this country needs more than ever.

The Supreme Court Waiting Game

Back in November, the plaintiffs in the dual Kentucky marriage equality cases, Bourke v. Beshear and Love v. Beshear, for which I am one of the attorneys, petitioned the Supreme Court for review of the Sixth Circuit Court of Appeals decision upholding Kentucky's ban on same sex marriage. The defendant, Governor Steve Beshear, filed a response supporting review by the Court.

Late last month, the plaintiffs filed a final reply, introducing additional counsel (including Jeffrey Fisher of Stanford Law School and attorneys with the American Civil Liberties Union) and providing additional context for the Court as to what is at stake and the harms being caused by the state's ongoing ban.

Since then, things have been quiet. As is normal in this process, once all the initial filings are submitted, the Supreme Court then schedules a private conference among the Justices to consider which cases to take up (or, in court parlance, "grant certiorari").

The Kentucky cases, along with other cases from Michigan, Ohio, Tennessee, and Louisiana, were discussed in conference today. The Los Angeles Times ran a nice summary of the cases.

The first chance for an announcement came at 2pm, when the Court issued a "Miscellaneous Orders" list. However, the Court only addressed two cases, neither of which was any of the same sex marriage appeals. The next chance for news comes next Monday at 9:30 p.m. Mondays are the typical days for orders from the Court announcing grants and denials of cert.

Now, what could happen on Monday? There are a few possibilities. First, the Court could announce that it will hear one - or some, or all - of the same-sex marriage cases and schedule a date for formal oral argument in the Court's chambers.

Or, the Court could deny cert. to all or some of the cases, effectively upholding the decision of the Sixth Circuit Court of Appeals. But that would enshrine the existing "Circuit split" where some federal courts interpret the U.S. Constitution differently than others. This is a situation, especially in cases of major social importance, which the Court rarely tolerates. Therefore a denial of cert. seems unlikely.

A third possibility is silence. The Court could decline to make any decision yet on the same-sex marriage cases and instead pass the discussion to the next conference, which will be held on January 16. Then a decision could be announced either that afternoon or the next Monday, January 19. The Court could even pass the cases to the final conference on January 23.

In order for the Court to hear the same-sex marriage cases during the current term, a decision must be made before the end of January. If no decision is made, the Court could wait to hear the case early next term, which starts in October, 2015.

Though the Supreme Court does things in an often highly organized way, they retain incredible discretion when it comes to when they do those things. So predicting when or how the Court will decide on the same-sex marriage cases is nearly impossible.

The Kentucky plaintiffs and their attorneys certainly hope an announcement is made soon. Same-sex couples in Kentucky and in the few remaining states still discriminating against them have been waiting a very long time for their right to marriage to be recognized. Hopefully the wait will soon be over.

Selective Citation

Idaho governor Butch Otter this week filed an amicus brief in response to the pending Petitions for Writ of Certiorari from the Sixth Circuit same-sex marriage decision (which upheld the states' bans).

In it, Governor Otter argues that the Idaho case of Latta v. Otter is a better vehicle than any of the Sixth Circuit cases for the Supreme Court's ultimate and inevitable ruling on the question of whether same-sex marriage bans violate the Fourteenth Amendment. Primarily, he says, Idaho alone has vigorously defended its ban against all challenges, including the argument that such bans should be subjected to so-called "heightened" judicial scrutiny.

The governor also attacks the very idea of same-sex marriage as an unreasonable "redefinition" of a traditional institution. To bolster this argument, he says:

Writing not long ago, Judge [Richard] Posner described same-sex marriage as "a radical social policy." Richard A. Posner, Should There Be Homosexual Marriage? And If So, Who Should Decide? 95 Mich. l. Rev. 1578, 1584 (1997).

But why cite to something Judge Posner wrote "not long ago" in 1997, when that same Judge Posner wrote about same-sex marriage just this year? Entirely omitted from Governor Otter's brief is any mention of the 2014 case Baskin v. Bogan, in which Judge Posner, writing for a three-judge panel of the Seventh Circuit Court of Appeals, struck down the same-sex marriage bans of Indiana and Wisconsin.

In that opinion, Posner writes:

[Wisconsin's] argument from tradition runs head on into Loving v. Virginia, 388 U.S. 1 (1967), since the limitation of marriage to persons of the same race was traditional in a number of states when the Supreme Court invalidated it. Laws forbidding black-white marriage dated back to colonial times and were found in northern as well as southern colonies and states. Tradition per se has no positive or negative significance. There are good traditions, bad traditions pilloried in such famous literary stories as Franz Kafka's "In the Penal Colony" and Shirley Jackson's "The Lottery," bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween). Tradition per se therefore cannot be a lawful ground for discrimination - regardless of the age of the tradition.

Baskin v. Bogan, 766 F.3d 648, 666 (7th Cir. 2014) (internal citations omitted). (Otter's brief also omits any mention of Loving v. Virginia).

Regardless of whether Judge Posner once or still believes same-sex marriage is "a radical social policy," today he believes it simply doesn't matter for the purposes of the Fourteenth Amendment. It strikes me as odd to quote a specific author as an authoritative source without acknowledging his most important writing on the subject at issue. In this case, the controlling (and contrary) law of the Seventh Circuit.