My Wall Street Journal opinion piece from last month on why same-sex marriage isn’t going away under a conservative Supreme Court is now online paywall-free at Cato.
I joined Rick Sincere on his podcast The Score for the Bearing Drift site (Virginia politics) for what turned out to be a two-part interview. You can listen to part 1 on Brett Kavanaugh’s Supreme Court nomination, and part 2 on why the Court is unlikely to overturn its Obergefell decision on same sex marriage.
My opinion piece in Monday’s Wall Street Journal offers eight reasons why, no matter who is the next justice, the Supreme Court will not overturn Obergefell v. Hodges, its 2015 same-sex marriage decision.
2. In deciding whether to respect stare decisis and follow a precedent deemed wrongly decided, justices apply standards that can appear wobbly and uncertain. But whatever else is on their minds, they always claim to take seriously the practical dangers of upending a decision on which many people have relied.
Few legal strokes would be as disruptive, yet fully avoidable, as trying to unscramble the Obergefell omelet. Large numbers of marriages would be legally nullified in a moment, imperiling everyday rights of inheritance, custody, pensions, tax status and much more. These effects would hit on day one because an earlier generation of social conservatives managed to write bans on same-sex marriage and equivalents into many state constitutions. Those bans would prevent elected officials from finding legal half-measures to avert massive dislocation for innocent persons.
- In name of suicide prevention, Oregon plans to use emergency one-sided hearsay proceedings to take away gun rights [Christian Britschgi, Reason]
- Past Office of Legal Counsel (OLC) readings of Emoluments Clause fall between extreme positions of CREW on the one hand and Trump White House on the other [Jane Chong/Lawfare, earlier]
- “Yes, Justice Thomas, the doctrine of regulatory takings is originalist” [James Burling, PLF] On the Court’s decision in Murr v. Wisconsin (earlier), see also Robert Thomas at his Inverse Condemnation blog here, here, and here;
- Notwithstanding SCOTUS decision in Pavan v. Brown just four days before, Texas Supreme Court intends to take its time spelling out to litigants the implications of Obergefell for municipal employee benefits [Josh Blackman (plus more), Dale Carpenter on Pidgeon v. Turner] Why the Supreme Court is not going to snatch back Obergefell at this point [David Lat]
- Tariff-like barrier: California commercial fishing license fees are stacked against out-of-staters [Ilya Shapiro and David McDonald, Cato]
- H.L. Mencken writes a constitution, 1937 [Sam Bray, Volokh]
- “SEAT Act: Top Senators Sponsoring Bill to Outlaw Low Cost Carriers, Raise Airfares” [Gary Leff, View from the Wing]
- “Trump’s Safe and Sane ‘Regulatory Reform’ Idea” [Cass Sunstein/Bloomberg, earlier Sunstein on Trump regulatory initiatives]
- Changing law and economics shape street protest [Tyler Cowen] Arizona’s bad idea on protestors involves racketeering charges, forfeiture, and more [Coyote]
- “Rights And Reality: Georgia Cop Jails Ex-Wife For Facebook Gripe” [Ken White, Popehat]
- “Opponents of same-sex marriage cynically…manufacture[d] a baseless controversy in the Texas Supreme Court” to attack City of Houston’s spousal benefits, but as the Hon. Jerry Smith of the Fifth Circuit had already stated in persuasive guidance, Obergefell “is the law of the land.” [Mark Pulliam, Law and Liberty; a second view from Josh Blackman]
- Idea making some headway: adapting use of class action and similar aggregate litigation procedures to administrative adjudication [Sergio Campos, Jotwell]
Of reasons to worry about the Donald Trump administration, so far as I can see, anti-gay policies aren’t in the top 25. Or so I argue in an opinion piece in today’s New York Post. It was written before, but includes an updating reference to, the airing of a “60 Minutes” interview last night in which Trump said, of the Supreme Court’s marriage cases, “They’ve been settled, and I’m fine with that.”
A bill called the First Amendment Defense Act, or FADA, with many Republican sponsors, would establish a new protected class in discrimination law, enabling what might develop into a major new sector of litigation. It would bestow on advocates of putative traditional family values — but not their opposite thinkers — new legal rights to sue over adverse government treatment of any kind, including the withholding of subsidies, government contracts or indeed any other public action. The protected status would even extend to acts taken as public employees and clothed with official force. It’s an extraordinarily one-sided, wildly impractical set of proposals whose theme, I argue at Newsweek, is not pluralist accommodation but merely to empower one side, when wielding public authority or tax moneys, to engage in a wide range of punitive and coercive measures against their culture war opponents. And that has less than nothing to do with the First Amendment.
Whole piece here. Dale Carpenter at Volokh Conspiracy has some kind words for my piece along with thoughts about the possible constitutional infirmities of the draft bill’s blatant enlistment of government power on behalf of one viewpoint and set of beliefs as against others; he also links to this Christianity Today piece by three leading religious liberty scholars, Richard Garnett, John Inazu, and Michael McConnell, who acknowledge some of the problems with FADA in present form while urging support for a less sweeping measure (“We think the best approach is to tailor FADA to the core area of concern: religious nonprofits.”)
P.S.: Stephen Bainbridge reprints a letter in which I link and summarize some of my recent writing on religious accommodation.
“Are you showing contempt for this court?” “No, I’m doing my best to hide it.” Mae West might get away with that attitude but Kentucky clerk Kim Davis can’t, as I explain in my (revised and expanded from last night’s post here) post at Cato. First paragraph:
Across the political landscape this morning, people on one side are discovering that lawlessness is bad, while people on the other are discovering that the machinery of our justice system is harsh. If experience is any guide, these lessons will last a lunchtime.
Whole thing here.
Former Arkansas Governor and presidential candidate Mike Huckabee responds as follows to a federal judge’s contempt finding against Rowan County clerk Kim Davis:
Kim Davis in federal custody removes all doubts about the criminalization of Christianity in this country. We must defend #ReligiousLiberty!
— Gov. Mike Huckabee (@GovMikeHuckabee) September 3, 2015
Henceforth when I think of Gov. Mike Huckabee it will be as someone unfamiliar with the legal concept of contempt of court. Gabriel Malor has dissected Huckabee’s enthusiasm for a purported right to defy SCOTUS rulings.
Kim Davis purges the contempt if she either carries out her public duties or quits her public office. So she is not in jail for refusing to violate her religion, unless her religion requires her to keep her public job (cool religion!). And while the traditional contempt power of the Anglo-American courts does generate various disturbing results — jailing dads for breaking a court order to see their kids, for example — pressure to resign a public office rates, to me, fairly low on the scale.
Speaking for myself, if my lawyers encouraged me to commit contempt of court, I might begin to wonder whose side they were on. Kim Davis’s Liberty Counsel lawyers, of course, were at the center of the extraordinary Miller-Jenkins case, much covered at this site, in which a client not only defied a court order but kidnapped a child along the way. And from Michelle Meyer, professional obligations of lawyers counseling clients re: contempt. (N.B.: Staver says Liberty Counsel “would never counsel a client to violate the law.”)
Plus: As Chris Geidner notes at BuzzFeed, Kentucky does not provide for recall of county clerks or removal by the governor for official misconduct. And Carly Fiorina, grown-up in the room: “when you are a government employee, I think you take on a different role.”
P.S. In general, courts have a range of remedial options when faced with contempt, such as fines. Their discretion is bounded by various factors; for example, they are not supposed to resort to harsher remedies if milder ones would obtain compliance. Many of the comparisons being bandied about, by the way, involve officials who were defying some law but were not themselves personally under a court order not to do so.
A curious argument making the rounds posits it as somehow relevant that marriage law changed after Davis won elected office, supposedly upsetting her reliance on expectations of what duties she would be called on to perform. That’s not really a legal question, in the sense of casting any doubt on whether she is expected to follow the laws of Kentucky and the United States in current form if she wants to hold office. It’s more of a union shop steward’s argument — “you can’t change my job duties unless you bargain with me first.”
And: Thoughtful Dan McLoughlin what-goes-around-comes-around on lawlessness, Kim Davis, and the pervasiveness of double standards.