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The First Circuit’s Scrutiny of DOMA

June 3rd, 2012

This case is difficult because it couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings. In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation. We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.

Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine–not to create some new category of “heightened scrutiny” for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage. Our decision then tests the rationales offered for DOMA, taking account of Supreme Court precedent limiting which rationales can be counted and of the force of certain rationales.

I’m not really sure what to make of it. It screams “We want to strike down DOMA but we don’t want to disturb existing Supreme Court precedents which counsel in the opposite direction so we’ll do something really funny.”

And this is even odder–the court morphed the substantive due process analysis in Lawrence and the equal protection analysis in Romer:

Lawrence struck down Texas’ statute forbidding homosexual sodomy and Romer overturned a Colorado constitutional amendment that curtailed the right of communities to enact laws to prevent discrimination against gays and lesbians. Although Lawrence rested on substantive due process precedent and not equal protection, precedents under the two rubrics use somewhat related tests as to levels of scrutiny–applied to liberty interests under the former and discrimination claims under the latter. Lawrence, 539 U.S. at 575-76, 578; Romer, 517 U.S. at 632, 635.

O’Connor’s equal protection analysis in Lawrence lost out.

The court resists creating a new suspect classification in light of Baker v. Nelson (that SCOTUS precedent the 9th Circuit ignored):

Second, to create such a new suspect classification for same-sex relationships would have far-reaching implications–in particular, by implying an overruling of Baker, which we are neither empowered to do nor willing to predict. Nothing indicates that the Supreme Court is about to adopt this new suspect classification when it conspicuously failed to do so in Romer–a case that could readily have been disposed by such a demarche. That such a classification could overturn marriage laws in a huge majority of individual states underscores the implications.

However, that is not the end of the matter. Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications. And (as we later explain), in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.

This is the rational basis “plus bite” we saw in Cleburne, Romer, and Moreno, rather than silly Lee Optical rational basis.

All three of the cited cases–Moreno, City of Cleburne and Romer–stressed the historic patterns of disadvantage suffered by the group adversely affected by the statute. As with the women, the poor and the mentally impaired, gays and lesbians have long been the subject of discrimination. Lawrence, 539 U.S. at 571. The Court has in these cases undertaken a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review. . .  .

Accordingly, we conclude that the extreme deference accorded to ordinary economic legislation in cases like Lee Optical would not be extended to DOMA by the Supreme Court; and without insisting on “compelling” or “important” justifications or “narrow tailoring,” the Court would scrutinize with care the purported bases for the legislation. Before providing such scrutiny, a separate element absent in Moreno, City of Cleburne, and Romer–federalism–must be considered.

And this Federalism analysis is just bizarre:

In assailing DOMA, the plaintiffs and especially the Commonwealth rely directly on limitations attributed to the Spending Clause of the Constitution and the Tenth Amendment; the Justice Department, along with the Legal Group, rejects those claims. In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA’s justifications and diminish somewhat the deference ordinarily accorded. . . .

True, these federalism cases examined the reach of federal power under the Commerce Clause and other sources of constitutional authority not invoked here; but a statute that violates equal protection is likewise beyond the power of Congress. See Moreno, 413 U.S. at 541 (Douglas, J., concurring). Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.

What does that mean? This opinion seems to jumble together all aspects of constitutional law (equal protection, substantive due process, federalism), and transform constitutional challenges into whether the government has articulated a valid reason to infringe individual liberty, and satisfied the requisite burden. (Frankly, that is what all con law is, regardless of what provision is being cited).

And, moral disapproval can (really) no longer be a basis for enacting legislation. Somewhere Scalia is scoffing–this is the point of his Lawrence dissent that Kennedy profusely disclaimed.

For generations, moral disapproval has been taken as an adequate basis for legislation, although usually in choices made by state legislators to whom general police power is entrusted. But, speaking directly of same-sex preferences, Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on this basis. 539 U.S. at 577-78. Moral judgments can hardly be avoided in legislation, but Lawrence and Romer have undercut this basis. Cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1984).

This the Court’s conclusion–try to distill the holding:

We conclude, without resort to suspect classifications or any impairment of Baker, that the rationales offered do not provide adequate support for section 3 of DOMA. Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test.

With all respect to Holmes and Friendly (for whom Boudin clerked):

For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.

Does Justice Kennedy like to regress to the mean?

June 3rd, 2012

David Schraub thinks so. AMK strikes down ACA (enraging liberals, and pleasing conservatives) and strikes down DOMA (placating liberals, and enraging conservatives). Splitting the baby David says. We’ll see.

“We’re not taking away anybody’s right to do things, we’re simply forcing you to understand.”

June 2nd, 2012

Guess who said it?

It’s our favorite libertarian bogeyman, Mayor Bloomberg!

I’m seriously starting to think that Michael Bloomberg is really an actor hired by the Koch Brothers to gin up support for libertarian causes. There must be a direct link between George Mason University and an implant in Bloomberg’s head, feeding him ideas of more and more outrageous things to do. I bet Tyler Cown has a blast with that.

Such an unabashed statist cannot possibly exist, right?

“One can quarrel with the textualist/originalist grounds of particular decisions, but one can hardly say that invalidating laws as inconsistent with text and original meaning runs counter to longstanding conservative judicial philosophy.”

June 2nd, 2012

Mike Ramsey replies to Jeff Rosen’s complaint that striking down the health care law would be “abandoning the association of legal conservatism with restraint.”

Using text and original meaning to overturn decisions of the political branches is nothing novel for legal conservatives — and hardly part of a new sinister turn in legal conservatism, as Rosen implies.  Consider some of the famous cases of the 1980s and 1990s: Chadha and Bowsher, invalidating congressional statutes on separation-of-powers grounds; LucasNollan and Dolan, invalidating state land-use regulations as violations of the takings clause; Lopez and Morrison, invalidating federal statutes as exceeding the commerce power; Adarand and Croson, invalidating state and federal affirmative action programs.  All these cases, and many more, overturned decisions of the political branches; all were controversial, yet they enjoyed the support of the Court’s leading conservatives and were widely applauded by conservative scholars and commentators.  One can quarrel with the textualist/originalist grounds of particular decisions, but one can hardly say that invalidating laws as inconsistent with text and original meaning runs counter to longstanding conservative judicial philosophy.

The short of it is that, in general, legal conservatives don’t subscribe to the Rosen/Graglia/Wilkinson version of judicial restraint.  So of course Professor Rosen is right that his version of judicial restraint would counsel upholding the health care law, but he can’t claim that legal conservatives would betray their philosophy by striking it down.  To the contrary, mainstream conservative legal traditions for the past 30 years call on judges to invalidate laws inconsistent with constitutional text and original meaning.  In calling for “restraint,” this line of thought means that judges should be “restrained” by the Constitution (not that they should be restrained by very strong deference to the political branches).  Rosen only sees a contradiction because he’s using a different (albeit, to my mind, preferable) definition of “judicial restraint.”

Indeed, Judge Wilkinson and Lino are outside the mainstream of judicial conservatives–and certainly judicial libertarians!

Radical State Passes Law That Permits Its Citizens To Do What Federal Law Forbids

June 2nd, 2012

So which radical state is getting into some nullification?

I’ll give you a hint? The state likes a certain herb.

Of course I am talking about the Nutmeg state, Connecticut, which legalized another (less legal herb) marijuana for medicinal purposes.

Of course such a law is preempted by federal law, which bans the possession of pot. This seems to be flat-out nullification.

Eh, don’t worry, be happy.

Just yesterday this case from Michigan–a user of medicinal marijuana was prosecuted by the feds, and a judge refused to allow him to invoke the state law as a defense:

A Big Rapids man licensed as a medical marijuana patient and caregiver pleaded guilty to federal charges after a judge denied his request to invoke Michigan’s medical marijuana law as a defense at trial. . . .

Defense attorneys conceded that federal courts, including the U.S. Supreme Court, have upheld the federal government’s authority to prosecute marijuana cases despite state laws protecting medical marijuana patients and caregivers.

“However, defendants respectfully submit, that the trend in this country is for more and more states to enact medical marijuana laws and that notwithstanding the prior federal court rulings, eventually, individual states will have the power to regulate the use of marijuana, just as they currently regulate the use and distribution of alcohol,” attorney Leon Weiss wrote in a court filing.

“In the meantime, your defendants herein face the prospect of federal criminal convictions and long prison terms, for conduct that the proofs would show, was within the lawful, permissible activities of their state law governing medical marijuana … .

“This has created a collision course between the state and federal laws, the result of which is the destruction of the constitutional rights of the accused defendants herein and the rights and ability of the defendants to present a thorough, fair and competent defense at trial, so as to totally eradicate their fundamental right to due process of law.”

The attorney said state medical marijuana laws have been “judicially ‘repealed’ by federal court rulings. … This state law has no legitimate effect, if this prosecution is allowed to continue with the complete ignoring of the (Michigan medical marijuana law), as if it never existed at all.”

Update: Add Arizona to the mix of states allowing legalized marijuana:

Arizona has one of the country’s strictest set of requirements governing the sale of medical marijuana — and, Mr. Hurley said, they were all looking to tap into its market because of that.

“There’s a sense of legitimacy that comes from having so many rules,” he said.

Medical marijuana programs exist in a gray area. They are legal in 17 states and the District of Columbia, but illegal under federal law, where selling and consuming marijuana, even if for therapeutic purposes, is still a crime. It is a risky undertaking: In California, where rules governing the business are particularly lax, medical marijuana ventures have been targets of raids.

In Arizona, it is a costly and cumbersome enterprise.