Blog

Today Pope Benedict XVI left Vatican City and will return as Pope Emeritus. In the Vatican, it is Sede Vacante. Though the Conclave has not yet begun, members on FantasyPope are already expressing their opinions about who the next Pope will be.

After the first day, here are the top 5 Papables:

On July 19, 2010, Adam Liptak seized on a key dicta in Justice Ginsburg’s opinion in CLS v. Martinez:

The sentence was resolutely bland and nicely hidden in a long Supreme Courtdecision issued on the last day of the term.

All it said was this: “Our decisions have declined to distinguish between status and conduct in this context.” But the context mattered. Justice Ruth Bader Ginsburg, writing for the majority, was talking about laws affecting gay men and lesbians.

Slipping that thought into a case about the treatment of a Christian student group reminded some of a technique perfected by Justice William J. Brennan Jr., whose fellow justices were wary of his “time bombs.”

“Brennan’s colleagues learned to watch for the seemingly innocuous casual statement or footnote — seeds that would be exploited to their logical extreme in a later case,” Seth Stern and Stephen Wermiel wrote in a new biography of the justice to be published in October.

Justice Ginsburg’s bland talk about status and conduct was significant because courts are more apt to protect groups whose characteristics are immutable. Calling sexual orientation a status may not require the conclusion that being gay is immutable rather than a choice, but it certainly suggests it.

In a footnote in the Government’s brief in the Prop 8 case, Solicitor General Verrilli cited just that passage:

As petitioners recognize (Br. 28), although Proposition 8 does not expressly refer to “sexual orientation,” it nonetheless classifies on that basis. Proposition 8 denies recognition of a class of marriages into which, as a practical matter, only gay and lesbian people are likely to enter. See Pet. App. 239a-240a (“Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.”); J.A. Exh. 56-57 (Voter Guide’s pro-Proposition 8 argument: urging voters to ban “gay marriage” and stating that “[g]ays and lesbians * * * do not have the right to redefine marriage for everyone else”). This Court has squarely rejected any distinction between the status and conduct of gay and lesbian people. See Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971, 2990 (2010) (rejecting contention that the organization “does not exclude individuals because of sexual orienta- tion, but rather ‘on the basis of a conjunction of conduct and the belief that the conduct is not wrong’ ” because the Court’s “decisions have declined to distinguish between status and conduct in this context”); Lawrence v. Texas, 539 U.S. 558, 575 (2003) (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrim- ination.”); id. at 583 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than con- duct. It is instead directed toward gay persons as a class.”); cf. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993) (“A tax on wearing yarmulkes is a tax on Jews.”).

Kudos to Adam for finding this timebomb, which just detonated.

My friend Mike Sacks pointed out that Vaughn Walker cited it in his Prop 8 in August of 2010.

How far we have come in three years:

Some scholars cautioned against reading too much into very limited information culled from an inapposite decision.

“I don’t think it tips the court’s hand,” Michael C. Dorf, a law professor at Cornell, said of the Christian Legal Society decision. Professor Dorf filed a brief supporting the law school in the case.

William N. Eskridge Jr., a law professor at Yale, said, “The takeaway is that in the foreseeable future if you’re going to get five votes for anything remotely pro-gay it will have to be written very narrowly.”

Others were prepared to go a little further.

“The tone bodes well,” Professor Goldberg said of the decision. “The analysis bodes well. The great question is whether the tone and analysis will carry over when the court confronts marriage head-on.”

I know this is the key question everyone was wondering about:

Contrary to petitioners’ contention (Br. 27-28), this Court’s one-line summary dismissal in Baker v. Nelson ,409 U.S. 810 (1972), in which it dismissed an appeal as of right from a state supreme court decision denying mar-riage status to a same-sex couple, neither forecloses theapplication of heightened scrutiny nor dictates the resultin this case. Summary dispositions are “not of the sameprecedential value as would be an opinion of this Courttreating the question on the merits.” Edelman v. Jor-dan , 415 U.S. 651, 670-671 (1974); see Massachusetts Bd. of Ret. v. Murgia , 427 U.S. 307, 309 n.1 (1976) (percuriam). In any event, neither the underlying statesupreme court decision, Baker v. Nelson , 191 N.W.2d185, 187 (Minn. 1971), nor the questions presented in theplaintiffs’ jurisdictional statement, addressed the ap-plicability of heightened scrutiny to classifications basedon sexual orientation, 12-307 J.A. 559; see also id. at 570(describing equal protection challenge as based on the“arbitrary” nature of the state law); id. at 574 (statingthat “[t]he discrimination in this case is one of gender”)

I have written at some great length that naming laws after people–especially victims–is a terrible idea as far as public policy goes. To vote against the law is to vote against the person. This is Ted Frank’s Law. Likewise, naming laws after things people really like, such as Civil Rights or Voting RIghts or Violence Against Women, is a bad idea. To vote against the law–even if there is a legitimate disagreement with the law, suggests that you want woman to incur violence, or you want civil rights to be violated. It makes demagoguery so much easier.

So how are federal laws named? There’s an article for that, titled “How Federal Statutes Are Named” authored by a Yale Law School students. Here is a summary:

The naming of [U.S.] federal statutes for individuals has received surprisingly little systematic attention. The purposes of this article are to trace the history of federal statutory naming conventions and to identify as authoritatively and as completely as possible the persons and political issues Congress has decided to honor or highlight in this fashion, as well as the proliferation of abbreviations as a further shortening of the short title.

Importantly, the article highlights certain “politically charged descriptions” of statutes:

One final convention for naming statutes that we identified is the politically charged description. Names like the “Pro-Children Act of 2001” 143 or the “Justice for All Act of 2004” 144 put opponents of the legislation at a rhetorical disadvantage, implying they are anti-children or in favor of justice only for some. Brian Christopher Jones argues that some such names are also misleading, as they imply that the measure enacted will succeed. 145 To some extent, of course, nearly all legislative names that are more than a dispassionate description are politically charged. Legislators are, after all, in the business of passing legislation and getting credit for doing so with the voters. The opportunity to enhance the chances of success by making nonsubstantive changes to a bill’s name is an easy choice.

The article has an entire section on naming laws after victims:

¶37 Another convention for federal statutes is to name the legislation after a victim of the particular ill the law addresses. Perhaps the most well-known example of this convention is Megan’s Law,which requires convicted sex offenders to register with local law enforcement upon release from incarceration. 124 The federal law, along with its many state counterparts, is named for Megan Kanka, who was brutally raped and murdered in 1994 by a neighbor who had been convicted twice previously of being a sexual predator. 125 Interestingly, most other laws named for female victims follow the convention of Megan’s Law and use the victim’s first name only, even though the identity of the victim is known. 126 The more common convention for laws named for male victims, however, is to use both a first and a last name in the statute. 127

124. Pub. L. No. 104-145, 110 Stat. 1345 (1996). 125. 142 Cong. reC. 10311 (1996) (statement of Rep. Dick Zimmer). 126. E.g., Jennifer’s Law, Pub. L. No. 106-177, tit. II, 114 Stat. 35, 36 (2000); Aimee’s Law, Pub. L. No. 106-386, § 2001, 114 Stat. 1464, 1539 (2000); Kristen’s Act, Pub. L. No. 106-468, 114 Stat. 2027 (2000). 127. E.g., Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Pub. L. No. 103-322, tit. XVII, 108 Stat. 1796, 2038 (1994); Cameron Gulbransen Kids Transportation Safety Act of 2007, Pub. L. No. 110-189, 122 Stat. 639; Danny Keysar Child Product Safety Notification Act, Pub. L. No. 110-314, § 104, 122 Stat. 3016, 3028 (2008).

And laws named to honor people:

¶38 An additional convention for short titles is to honor individuals. Frequently the honorees are advocates associated with the fight for the legislation, such as the Lilly Ledbetter Fair Pay Act of 2009, named for the plant manager at Goodyear who famously sued the company for sex discrimination in its pay practices. 128 Even before the reign of the official short title, some laws had become known by the names of persons other than the sponsors, and not always to honor them. 129 Now formal short titles often used these names, though typically in conjunction with a description of the subject matter of the bill. Other laudatory names honor recently deceased members of Congress 130 or retiring members who are also the bill’s sponsor. 131

And of course, a discussion of the name “Obamacare.”

A new variant is the application of a political opponent’s name to a proposed or enacted measure thought to be (or sought to be made) unpopular, as in the repeated use by Republican politicians of “Obamacare” to describe the program enacted by Congress in the Patient Protection and Affordable Care Act (PPACA), Pub. L. No. 111-148, 124 Stat. 119 (2010), which President Obama signed on Mar. 23, 2010. See Fighting to Control the Meaning of “Obamacare,” n.y. tImes, Mar. 26, 2012, at A12. During his brief bid for the Republican presidential nomination, Minnesota Governor Tim Pawlenty further modified the popular name for the PPACA, calling it “Obamneycare” in an attempt to link his rival, Mitt Romney, to the incumbent president. Jill Lawrence, Obamacare, Romneycare, Obamneycare—Never Mind, nat’l JoUrnal: 2012 deCoded (Jan. 8, 2012, 10:29 a.m.), http://decoded.nationaljournal.com/2012/01/obamacare-romneycare-obamneyca.php. At the same time, congressional opponents of the legislation seem to avoid referring to the PPACA by its official title, even in attempts to repeal the law. The second bill introduced in the Republican-controlled 112th Congress was titled “An Act to repeal the job-killing health care law and health care-related provisions in the Health Care and Education Reconciliation Act of 2010,” and given the short title “Repealing the Job-Killing Health Care Law Act,” H.R. 2, 112th Cong. (2011). The text of the bill refers to the 2011 act only as the “Job-Killing Health Care Law” and by its public law number. Other legislation from the 112th Congress similarly refers to the PPACA in whole or in part as the “jobkilling health care law,” H.R. 1184, 112th Cong. (2011), the “job-killing Federal employer mandate,” S. 20, 112th Cong. (2011), or simply by its public law number, Consolidated Appropriations Act, 2012, Pub. L. No. 112-74, 125 Stat. 786 (2011). At least one bill to repeal the PPACA, however, uses the Obamacare moniker, including the short title: “Repeal of Obamacare Act,”H.R. 6079, 112th Cong. (2012). In the 2012 presidential election campaign, it appeared that supporters of President Obama embraced the term Obamacare as a name for the new law, perhaps spurred in part by the President’s own adoption of it in speeches and in campaign materials. See Peter Baker, Democrats Embrace Once Pejorative “Obamacare” Tag, n.y. tImes, Aug. 4, 2012, at A11.

I recently learned in France that all bills are numbered, rather than named. I think that’s a great idea.

H/T Legal Informatics Blog

McCullough Lane, Maryland