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The two-year race from United States v. Windsor1 to Obergefell v. Hodges produced3 an inconceivable sea change in substantive constitutional law. But just as important as the right to marry was the process through which that right was vindicated. Marriage equality was established via parallel litigation in 37 states covering eight federal circuits. And that litigation triggered a complex two-year interaction of the doctrine governing injunctions, precedent, stays, concurrent state- federal litigation, and abstention.

Many books and articles have and will be written about the marriage- equality movement’s rapid success. Howard Wasserman (FIU) and I took a different tact. In our new article, The Process of Marriage Equality, we discuss how four aspects of federal procedure and jurisdiction doctrine both enabled and frustrated marriage equality’s advance to the Supreme Court.

The article is now on SSRN. Here is the abstract:

This article offers the first comprehensive history of the marriage-equality litigation process leading from Windsor to Obergefell. It explores how four aspects of federal procedure and jurisdiction doctrine both enabled and frustrated marriage equality’s advance to the Supreme Court. First, we examine common misconceptions about how judgments, injunctions, and judicial precedent control real-world conduct and how litigation brings about legal reform. These misconceptions reached their nadir in Alabama in spring 2015. Guided by Chief Justice Roy Moore, Alabama officials properly declined to follow persuasive precedent, prompting unfortunate and inaccurate comparisons to George Wallace and Massive Resistance to Brown and desegregation. Second, we examine the pivotal, but underappreciated, role of stays pending appeal in constitutional litigation. In particular, we consider how denials of stays triggered concurrent races to the courts of appeals and to the altars. The Court’s transmission of signals through unexplained stays and denials of certiorari exacerbated the confusion in the lower courts and the states, highlighting a penumbra of what one scholar calls the Court’s “shadow docket.” Finally, we examine unsuccessful efforts by state attorneys to move marriage cases out of federal court by initiating state-court litigation and urging federal abstention. This article makes a first contribution to the scholarly discussion of marriage equality by focusing on the critical, but underdeveloped, procedural nuances of high-stakes civil rights litigation. By considering the process of marriage equality, we better understand this societal evolution and future constitutional revolutions.

Scholars will spend many years and pages exploring the rapid establishment of the constitutional right to marriage equality. This paper contributes to that conversation by focusing, for the first time, on the critical, but underdeveloped, procedural nuances of high-stakes constitutional and civil rights litigation. We offer both a detailed historical record of the litigation that produced the constitutional watershed that is marriage equality, as well as a better understanding of how procedure, jurisdiction, and the judicial process affect future high-stakes constitutional and civil rights litigation. The results in the marriage litigation were decidedly mixed. Courts and litigants for the most part got many of these issues right. But they often got procedure very wrong, in a way that confused, extended, and raised the cost of this litigation and that contributed to widespread public misunderstanding of these issues.

We welcome any comments or feedback you may have. Thanks!

Judge Hanen issued an order today that he will still hold a hearing in Texas v. United States on 8/19, but “releases all individual defendants from its earlier order requiring mandatory attendance.” That includes Secretary of Homeland Security Jeh Johnson.

But the government is still on call that they may be in trouble.

Nevertheless, the Court remains concerns about the individuals that still possess credentials issued in violation of the Court’s injunction. Counsel for the Government needs to be prepared to discuss the reasons that these individuals are not in compliance, the steps the Government has taken and will continue to take to achieve complete compliance and the time table to achieve that goal in the very near future. The Court does not consider mere substantial compliance, after an order has been in place for six months, to be acceptable and neither should counsel.

Further counsel for both sides shall be prepared to discuss their Joint Advisory, the matters still in dispute, and the manner, procedure and/or court action that needs to be taken in order to bring these matters to a conclusion.

In a unanimous opinion for a 7th Circuit Panel, Judge Easterbrook found that the city of Springfield’s anti-panhandling ordinance was unconstitutional, in light of Reed v. Town of Gilbert. Before Reed, the panel had upheld the statute, but the Supreme Court’s decision changed the analysis.

Here is the court’s analysis, where it explains what it thought was the doctrine before Reed:

The panel disagreed with that submission for several ressons. We observed that the ordinance does not interfere with the marketplace for ideas, that it does not practice viewpoint discrimination, and that the distinctions that plaintiffs call content discrimination appear to be efforts to make the ordinance less restrictive, which should be a mark in its favor. We summed up: “The Court has classified two kinds of regulations as content-­based. One is regulation that restricts speech because of the ideas it conveys. The other is regulation that restricts speech because the government disapproves of its message. It is hard to see an anti-­‐‑panhandling ordinance as entailing either kind of discrimination.” 768 F.3d at 717 (citations omitted). We classified the ordinance as one regulating by subject matter rather than content or viewpoint.

But Reed altered that analysis:

Reed understands content discrimination differently. It wrote that “regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” 135 S. Ct. at 2227 (emphasis added). Springfield’s ordinance regulates “because of the topic discussed”. The Town of Gilbert, Arizona, justified its sign ordinance in part by contending, as Springfield also does, that the ordinance is neutral with respect to ideas and viewpoints. The majority in Reed found that insufficient: “A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.” 135 S. Ct. at 2228. It added: “a speech regulation targeted at specific subject matter is content based even if it does not discriminate among view-­‐‑ points within that subject matter.” Id. at 2230.

Easterbrook accepts this analysis begrudgingly, and notes that Kagan, Ginsburg, and Breyer concurred in judgment to stress the implications of the majority’s decision.

Three Justices concurred only in the judgment in Reed. 135 S. Ct. at 2236–39 (Kagan, J., joined by Ginsburg & Breyer, JJ.). Like our original opinion in this case, these Justices thought that the absence of an effort to burden unpopular ideas implies the absence of content discrimination. But the majority held otherwise; that’s why these three Justices wrote separately. The majority opinion in Reed effectively abolishes any distinction between content regulation and subject-­matter regulation. Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification.

Judge Manion, concurring, cheerfully welcomed Reed, which he thought clarified the tension between Ward v. Rock againstRacism and it’s content-based regulation doctrine.

I join the opinion of the court in full, but write separately to underscore the significance of the Supreme Court’s recent decision in Reed v. Town of Gilbert, which held that a speech regulation targeted at specific subject matter is content-based even if it does not discriminate among viewpoints within that subject matter. 135 S. Ct. 2218, 2230 (2015). Reed injected some much-needed clarity into First Amendment jurisprudence and, in doing so, should eliminate the confusion that followed from Ward v. Rock Against Racism, 491 U.S. 781 (1989). While Ward is well-recognized as the Court’s seminal time, place, and manner First Amendment case, it also described a standard for content- neutrality that was in tension with the Court’s developing content-based regulation of speech doctrine. Reed resolved this uncertainty.

…

Reed saw what Ward missed—that topical censorship is still censorship. Rejecting the idea that the government may remove controversial speech from the marketplace of ideas by drafting a regulation to eliminate the topic, Reed now requires any regulation of speech implicating religion or abortion to be evaluated as content-based and subject to strict scrutiny, just like the aforementioned viewpoint-based restrictions covering more narrow contours of speech. 135 S. Ct. at 2228, 2230. Few regulations will survive this rigorous standard.

Reed could be the sleeper of last term, and have really far-reaching effects.

Update: Judge Manion wrote a 20-page dissent to the original panel decision.

Today the court holds that a panhandler who asks a passerby for money in the downtown historic district of the City of Springfield commits a crime and may face criminal prosecution for this simple request. This conclusion is alien to our First Amendment jurisprudence. Accordingly, I do not join the opinion of the court because the City of Springfield’s panhandling ordinance is a content-based regulation of speech, subject to strict scrutiny. By concluding that the ordinance is content-neutral, the court misapplies the Supreme Court’s content-based regulation jurisprudence. Consequently, I respectfully dissent.

He was vindicated.

 

Sissel v. HHS presented an origination clause challenge to the ACA’s individual mandate. On July 29, 2014, a panel of the D.C. Circuit rejected the challenge, finding that the mandate was not a revenue-raising provision, and therefore the origination clause was not applicable. A petition for rehearing en banc was filed on October 6, 2014. That petition was pending for 10 months, and finally, today, the D.C. Circuit denied rehearing en banc.

Judges Rogers, Pillard, and Wilkins–who authored the panel decision–wrote a statement concurring in the denial of rehearing en banc. Judges Kavanaugh, Henderson, Brown, and Griffith, dissented from denial of rehearing en banc.

The Kavanaugh dissental, however, would not have given a victory to Sissel. Rather, he would have found that the mandate did in fact raise revenue, but that it complied with the origination clause. He would have granted re-hearing only to correct the analysis, but not the outcome.

So in concluding that the Affordable Care Act complied with the Origination Clause, the panel opinion reached the right bottom line, but relied on what I see as a faulty rationale. Does such a case still warrant en banc review? Oftentimes no, but here yes. The panel opinion sets a constitutional precedent that is too important to let linger and metastasize. Although no doubt viewed by some today as a trivial or anachronistic annoyance, the Origination Clause was an integral part of the Framers’ blueprint for protecting the people from excessive federal taxation. It is true that the Framers’ decision to grant the Senate a broad amendment power gave the Origination Clause less bite than it otherwise might have had. But the Clause nonetheless has been important historically and remains vital in the modern legislative process. By newly exempting a substantial swath of tax legislation from the Origination Clause, the panel opinion degrades the House’s origination authority in a way contrary to the Constitution’s text and history, and contrary to congressional practice. As a result, the panel opinion upsets the longstanding balance of power between the House and the Senate regarding the initiation of tax legislation. Therefore, I would grant rehearing en banc. In my respectful view, the en banc Court should vacate the panel opinion and rule for the Government on the ground that the Affordable Care Act originated in the House and thereby complied with the Origination Clause.

The 10-month delay suggests there was something going on behind the scenes here. If all the judges agreed that Sissel would ultimately lose, it isn’t clear why this took so long to get the opinion out.

The Times reports that insurers are finding that their risk pools are sicker than expected, and new customers are using more services than expected. As a result, they are requesting a rate increase from the federal government–increases that need to be justified.

Hoping to avoid another political uproar over theAffordable Care Act, the Obama administration is trying to persuade states to cut back big rate increases requested by many health insurance companies for 2016.

In calling for aggressive regulation of rates, federal officials are setting up a potential clash with insurers. Some carriers said they paid out more in claims than they collected in premiums last year, so they lost money on policies sold in the new public marketplaces. After finding that new customers were sicker than expected, some health plans have sought increases of 10 percent to 40 percent or more.

Administration officials have political and financial reasons for wanting to hold down premiums. Big rate increases could undermine public support for the health care law, provide ammunition to Republican critics of the measure and increase costs for some consumers and the federal government.

Last week, I was at a workshop at SEALS about the ACA, and the question was posed whether the ACA was a landmark statute. Recall that Justice Scalia snidely compared it to the Wagner Act in his King dissent. My answer was emphatically no. It is indisputable that about 15 million people have benefited from the ACA. But what about everyone else? If this law continues to raise costs and make insurance significantly worse off for the other 200 million Americans, then its landmark status is in severe doubt. Unlike social security, which benefits everyone when they hit 65, and imposes a discreet tax on paychecks for youths, the ACA will only benefit a certain class of people–those who are poor and those are sick. I explained at the workgroup that if the premiums keep increasing, and employers throw their employees off plans once the Cadillac Tax kicks in, there will be a sustained effort to significantly change the law. No, that doesn’t mean repeal the entire ACA. But people will have an appetite to revise is to that the overwhelming majority of Americans are not made materially worse off. I don’t think the ACA has, as the President has explained, changed the American culture so that we all want to take care of everyone else, and make health insurance a fundamental right. To the contrary. The law was sold on the (unkeepable) promises that it would make insurance more affordable for everyone, without raising any premiums. (Remember bending the cost curve?).

The ACA is not a super statute. The Chief Justice made clear that court cases will not gut the law. But the political process remains ready, and able to do so.