Today in Supreme Court History: April 28, 2015

4/28/2015: Obergefell v. Hodges argued.

Comments

[Speaking for normal people]

One of the worst decisions ever. Reason hates natural law talk but it let Gorsuch make his case using a very aberrant view of natural law from John Finnis.

Michael Pakaluk has said that New Natural Law Theory is " at every major point at odds with Aquinas" . THis is all also in a soon to be published 5 Views of Natural Law.

Was it pure laziness that the provenance of this legal thinking was bypassed by REASON ?

[Brett Bellmore]

The Court held off on taking any related cases until the lower courts had pretty much finished imposing SSM on the nation. Obergefell was more in the nature of a mopping up operation, the Court didn't lead the charge.

[not guilty]

SCOTUS granted cert in Obergefell because the Sixth Circuit decision there was an outlier which created a circuit split.

Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003), is more than two decades old. Marriage equality has been nationwide for ten years now.

Are the Chicken Littles ever going to admit that the sky hasn't fallen?

[SRG2]

How was your liberty infringed by the recognition of SSM?

[Stupid Government Tricks]

In a minor way, it increased the pool of spouses entitled to Social Security and other Ponzi scheme benefits. I doubt that's his objection, though.

[The Margrave of Azilia]

How is your liberty infringed by allowing pretrial detention without bail? I presume that you haven't been charged with that kind of crime, so unless you're a patriot who is aggrieved by violations of the constitution and founding institutions of your country why would you care?

[SRG2]

Answer my question then I will answer yours

[The Margrave of Azilia]

I did. Are you slow?

Do you know what a rhetorical question is?

[jb]

I care about pretrial detention without bail because I might be wrongly accused of a crime and wouldn't want to sit in jail while the courts figured that out. So the liberty interest is speculative rather than current, but it's not hard to figure out.

On the other hand, other than Stupid Government Tricks's explanation (which I agree is unlikely to be the objection here) it's hard to imagine how a straight person is hurt in any way because a gay person is married.

[The Margrave of Azilia]

Suppose you sold wedding cakes and were afflicted with an inconvenient conscience against selling wedding cakes to people who weren't getting into an opposite-sex marriage?

Ah, but that's OK, you ought to *want* to make same-sex cakes!

What if you ran a honeymoon tour company and wanted to make your services only available to opposite sex weddings?

Ah, that wouldn't be a problem because if you happened to have any scruples in this matter you could just close your business, problem solved!

What if the entire institution of the family is receiving a series of hammer-blows at the hands of the sexual revolution? That's OK, because you can't separate out gay marriage from the other aspects of the sexual revolution, so you can't pin down explicit responsibility.

What if your children get the idea that if the government defines marriage in such a bizarre way, that's the way marriage must be? That's OK, too, because the government is shaping a new enlightened generation for our new brave new world.

[jb]

Your business examples are silly. Those are easily separable from whether or not gay marriage ought to be allowed (and have been by the courts).

As for the rest, you're free to explain to your children what your version of marriage is. Once they turn 18, they're free to agree with you or not. In no event does someone else getting married affect your own freedoms on the topic, unless you think you have some sort of freedom from being exposed to ideas you don't like.

[ReaderY]

Let’s go back to Hannah Arendt’s argument against the Civil Rights Act. Hannah Arendt famously (at the time) opposed the Civil Rights Act on grounds people ought to have a right to choose their own associates, and when they mind their own business they aren’t hurting anyone else. Let’s call this SSB (same-sex-business).

How is your liberty infringed by SSB? In general, when people mind their own business, how are they infringing on others’ liberty?

The Supreme Court in Atlanta Motel ruled in a way that didn’t require refuting Hannah Arendt. It said that government could outlaw “discrimination,” and hence SSB, just because it considers it immoral, and compared it to a list of laws - prostitution, gambling, etc. - that it said were classic morals laws with this just being a new one in the same category.

But you don’t accept this position, So how do you refute Hannah Arendt? And how do you do so in the SSB case without managing to knock the ground out from your argument in the SSM case? After all, your argument on SSM is, at least superficially, very similar if not completely identical to Hannah Arendt’s argument on SSB.

I think this is a much harder issue than it might superficially appear.

[Dan Schiavetta]

Crawford v. Marion County Election Board, 553 U.S. 181 (decided April 28, 2008): Indiana law requiring photo ID to vote did not violate Equal Protection (6 - 3 decision)

Cummings v. Premier Rehab Keller, PLLC, 596 U.S. 212 (decided April 28, 2022): emotional distress damages not available under Rehabilitation Act of 1973 or Affordable Care Act (physical therapist did not provide sign language interpreter for deaf and blind client)

Vieth v. Jubelirer, 541 U.S. 267 (decided April 28, 2004): no justiciable question presented by Pennsylvania Republicans’ political gerrymandering, no matter how obvious (the Pennsylvania Supreme Court seemed to disagree, striking down a subsequent map that “clearly, plainly and palpably” violated the Pennsylvania Constitution, 645 Pa. 1, 2018)

Edwards v. United States, 523 U.S. 511 (decided April 28, 1998): sentencing judge can permissibly find that defendants distributed crack (as well as cocaine), which the Sentencing Guidelines treat more harshly, even though verdict did not necessarily involve crack

Richards v. Wisconsin, 520 U.S. 385 (decided April 28, 1997): no-knock entry (with warrant) justified because police were aware defendants knew it was the police at the door (of a motel room) and waiting for response would give them chance to flush the cocaine

Meese v. Keene, 481 U.S. 465 (decided April 28, 1987): the term “political propaganda” as used in the Foreign Agents Registration Act (“intended to influence foreign policy”) is content neutral and therefore no First Amendment impediment to registration and disclosure requirements for materials so designated by the Department of Justice (Canadian films that a California state senator wished to show, dealing with nuclear war and acid rain)

Costarelli v. Massachusetts, 421 U.S. 193 (decided April 28, 1975): In Massachusetts, trial for certain criminal offenses was without jury -- but if found guilty, can “appeal” and get a de novo jury trial in Superior Court. Does this system violate Sixth Amendment right to trial by jury? No jurisdiction to hear a direct appeal as to this; defendant must go through to Massachusetts’s highest court (he never got that far -- perhaps he was acquitted?). (Massachusetts has since eliminated this two-tier system.)

Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168 (decided April 28, 1975): reports given to Renegotiation Board (watchdog agency as to excessive defense contractor profits) are not “final opinions” disclosable under the Freedom of Information Act (Dick Cheney fought tooth and nail, mostly successfully, in resisting disclosure of documents as to his pre-9/11 Energy Task Force -- this holding was probably helpful to him)

Beauharnais v. Illinois, 343 U.S. 250 (decided April 28, 1952): upholding against First Amendment attack Illinois statute criminalizing materials “portraying lack of virtue in a class of citizens” (white supremacist handing out broadsheets accusing black people of rape, murder, etc.); if there can be criminal libel against individuals, there can be such against classes of people (this case, with opinion by the Jewish Justice, Frankfurter, with recent memories of the Holocaust, has in effect been overruled by later First Amendment jurisprudence, see discussion in Nuxoll v. Indian Prairie School District, 523 F.3d 668)

Zorach v. Clauson, 343 U.S. 306 (decided April 28, 1952): (no, this was not Zorach from “Space Ghost Coast to Coast”, a great show) “release time” from public school to attend religious classes is Constitutional (we Catholic kids were let out an hour early for the bus, though with Catechism added in, we ended up getting home an hour later than everyone else)

[The Margrave of Azilia]

"Edwards v. United States, 523 U.S. 511 (decided April 28, 1998): sentencing judge can permissibly find that defendants distributed crack (as well as cocaine), which the Sentencing Guidelines treat more harshly, even though verdict did not necessarily involve crack"

This sort of thing may may need stern measures - perhaps sentences should only be based on what the defendant has been convicted of (including past record), not uncharged or unconvicted crimes.

[David Nieporent]

The problem is that as long as there's statutory sentencing ranges, then the court has to base the sentence on something other than the conviction itself. i.e., let's say that there's a statute that says that the possession of at least 1 pound of cocaine is a felony punishable by 10-20 years in prison. The choices are:

1) Make that kind of statute illegal; require the statute to say "punishable by exactly 15 years in prison" and thus give the judge no discretion;
2) Require the jury to find every possible fact about the defendant that could affect the sentence;
3) Allow the judge to decide based on his consideration of various facts about the defendant where in that 10-20 year range is appropriate.

[The Margrave of Azilia]

To the extent that criminal conduct by the defendant is a sentencing factor, then, yes, a person should actually be convicted of the conduct (via jury or plea) before the court takes it into account.

[David Nieporent]

Why only criminal conduct? Isn't it a bit weird to have as a rule that a judge would be allowed to take into account A, B, C, and D — none of which a jury found to be true — but not take into account E, just because E could have been criminal conduct?

At a sentencing hearing, evidence is presented that the guy is a high school dropout, has gotten fired from every job he has had, is drunk all the time. The judge can cite each of those in giving a 15 year sentence instead of a 10 year sentence, even though a jury didn't find any of those facts to be true? But the judge must ignore the similar evidence that the guy beats his girlfriend because the guy wasn't charged with that?

[The Margrave of Azilia]

Why wasn't he charged with beating his girlfriend?

"is drunk all the time"

Drunkenness can be a crime depending on the circumstances - public intoxication, DWI. If that's not in his record why bring up the allegations in an unrelated proceeding, if we're serious about respecting the right to a jury trial on criminal accusations?

[The Margrave of Azilia]

"Zorach v. Clauson"

"We are a religious people whose institutions presuppose a Supreme Being....When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe."/443 U. S. 313-14

[David Nieporent]

Vieth v. Jubelirer, 541 U.S. 267 (decided April 28, 2004): no justiciable question presented by Pennsylvania Republicans’ political gerrymandering, no matter how obvious (the Pennsylvania Supreme Court seemed to disagree, striking down a subsequent map that “clearly, plainly and palpably” violated the Pennsylvania Constitution, 645 Pa. 1, 2018)

It did not, of course, disagree. One was an opinion about the federal constitution, and one about the state.

[Dan Schiavetta]

They were construing the same language.

[Dan Schiavetta]

Actually they did disagree -- about justiability.

[JoeFromtheBronx]

Various notable opinions here.

Crawford split the justices' various ways with the controlling opinion limited to a narrow argument based on lack of enough evidence of discrimination. I found the plurality somewhat weak but regardless it was narrow. Good dissents.

Vieth v. Jubelirer is an example of the lack of a fifth vote to given teeth to partisan gerrymandering claims. The liberals never did get Kennedy to go along & once he retired, we had Rucho.

Zorach had the (in)famous " religious people whose institutions presuppose a Supreme Being" bit that ironically was written by Douglas, who later must have kicked himself for giving so much governmental aid (ha) to mixture of church and state.

The general idea that accommodating religious beliefs when governmental regulations burden them is allowed and encouraged by the Free Exercise Clause is fine. The problem, as the dissents noted, is when it goes too far and violates the Establishment Clause. We didn't have release time when I went to public school.

As to our institutions presupposing a supreme being, the Constitution does not. It particularly avoided doing so. The Declaration of Independence assumed one though some references had a deistic character.

If a supreme being exists, the Constitution still limits how the government should recognize such a being.

[not guilty]

Perhaps Justice Douglas still held political aspirations when he penned Zorach. President Truman had apparently given him serious consideration as a running mate in 1948.

[JoeFromtheBronx]

Perhaps so. He notably stopped restraining his rhetoric after the early 1950s. See also his dissent in Dennis v. U.S. (1951), which included this statement:

The freedom to speak is not absolute; the teaching of methods of terror and other seditious conduct should be beyond the pale along with obscenity and immorality.

Not something he would write a few years later.

[The Margrave of Azilia]

"Zorach had the (in)famous " religious people whose institutions presuppose a Supreme Being" bit that ironically was written by Douglas, who later must have kicked himself for giving so much governmental aid (ha) to mixture of church and state."

As for Douglas - too bad, so sad that he later changed his mind (if he did).

[Dan Schiavetta]

The Framers were too sensitive to the religious wars of previous centuries to mention a Supreme Being except in the most general of terms. In fact most were in effect atheists, though of course they didn't imagine such a term and probably wouldn't have admitted it to themselves. They called themselves Christians but most were (as one historian put it) "scanty Christians". You have to get to Van Buren to find a truly religious man in the White House.

[The Margrave of Azilia]

No, they may not have been all held to Chalcedonian orthodoxy (though some of them did), but they knew what atheism was and they knew they weren't atheists.

Washington was characterized by someone at the Mount Vernon historical site as a "latitudinarian Anglican." Also significant (certainly significant to him), he was a Freemason who believed in God as the great Architect of the Universe.

"Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice ? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle." /Washington's Farewell Address, 1796

https://www.georgewashington.org/farewell-address.jsp

While you may recognize the link between liberal Christianity/post-Christianity/unitarianism/deism, on the one hand, and atheism, on the other, the Founders didn't believe in any such link and would have been indignant at such accusations.

Jefferson thought that being an atheist didn't stop someone from being a nice guy, but Jefferson himself wasn't an atheist. And Jefferson was at the truly "leftward" end of the Founders' spectrum.

Even Paine believed in God ("one God and no more").

[JoeFromtheBronx]

"most were in effect atheists"

I think that's an exaggeration.

The coverage mostly talks about a few leading Framers, though even to them there were references to God. Madison was not an atheist, for instance. Jefferson was a deist, assuming a deistic "supreme being," though he was labeled an atheist.

Even Tom Paine referenced a belief in a Supreme Being, ironically arguing in Age of Reason that his book defended the true nature of god from misguided misinterpretations.

[JoeFromtheBronx]

The oral arguments for Obergefell v. Hodges had something of a lackluster character. The result was apparent.

Chris Geidner, for instance, wrote an article about how the Supreme Court let stand multiple opinions that allows thousands of same sex marriages to occur. It was unlikely after these opinions stood for so long that they would rule against same sex marriage.

Roberts silently going along even though he eventually dissented is telling. Roberts also silently went along in Pavan v. Smith, which applied the ruling expansively.

Some liberals were critical with some aspects of Obergefell but as a whole I think the opinion is well written. I would have provided a bit more on the development of same sex marriage, which has a rich history [see, e.g., Jack Balkin's 1990s article and book]. Still, the opinion was very good, including it's discussion of how liberty and equality overlapped & the various aspects of the right to marriage.

Some liberals wanted the opinion to rely on equal protection. Melissa Murray thought it praised marriage too much, noting many people have other relationships. But the advocates strongly pushed the marriage line, including cheering on marriage.

It is somewhat silly to blame Kennedy for agreeing with them, including tossing in a few colorful pro-marriage comments. Anyway, he also wrote Lawrence v. Texas, which protected intimate association overall.

[Dan Schiavetta]

When New York legalized gay marriage in 2011, only a single Democrat (Diaz) voted against it. He was also the only one to make a speech in opposition. Republicans, who all voted against it, did not have the nerve to stand up and say anything.

[The Margrave of Azilia]

The best lack all conviction, and the worst
Are full of passionate intensity

https://www.poetryfoundation.org/poems/43290/the-second-coming

[apedad]

Actually, it looks like a couple of Reps voted for it.

After weeks of suspense, Stephen Saland, a Poughkeepsie Republican, announced himself on the Senate floor as the 32nd senator to back the legislation, tipping the balance in favor of it passing. Saland defined his vote as a matter of conscience during a stirring legal defense of an amendment exempting religious organizations from the law.

Saland, who voted against gay marriage in 2009, was joined in announcing his newfound support for gay marriage on the senate floor by Mark Grisanti, a first-term Buffalo Republican who did not declare how he would vote until his floor speech Friday night. Grisanti, who said he struggled with the vote because he is Catholic, had been against same-sex marriage when he was elected last year, but changed his mind after an intense lobbying campaign, which included a call from Lady Gaga to her fans to contact him.

“I cannot legally come up with an argument against same-sex marriage,” Grisanti said.

Of the 33 senators to vote for the bill, 29 are Democrats and four are Republicans.

https://www.politico.com/story/2011/06/ny-legalizes-gay-marriage-057749

[Dan Schiavetta]

Thanks -- my memory was a little faulty.

It remained a fact that no Republican who voted against, had the nerve to stand up and defend their vote.

[hobie]

As long as government wants to get in on the marriage business (where it doesn't belong, in my opinion) then they have to give all citizens the same treatment

[A Japanese Student]

Is Obergefell the last time the Court scheduled multiple oral arguments initially?