How History Will Remember Trump

I stopped blogging about two years ago. I’m not restarting now, but I got into blogging in the first place because I frequently had a perspective that the media ignored, and, right now, when it comes to the election, much of the media seems lost in the woods. So, I want to add my thoughts.

More than any other campaign in my lifetime, it is easy to get caught up in the day-to-day news of this election. What did Trump say now? What are the latest leaked emails from team Clinton? I follow the constant stream of news about as closely as anyone. But at the end of the day, I think it’s best to take a 10,000 foot view of any election before voting. And the best way to do that is to consider how the election fits into the story of American history. In other words, how will people remember the 2016 election in 50 years?

This election will be remembered for Donald Trump’s racism. That’s not to say that all of his supporters are racist, or that there are no legitimate reasons to vote for him. But Trump’s campaign has been full of racism. He announced his campaign by calling Mexicans rapists. He proposed banning all Muslims from entering the country. His speeches are peppered with coded racial messages. Newspaper after newspaper has rejected him, many referring to his racism. And since history tends to forget nuance, that’s all that will really be remembered about this election in 50 years.

History is all about context. Set aside the current election for a moment and consider the major events of racial progress in American history. They have all been accompanied by major push-backs by racist forces. In 1860, for the first time, an overtly anti-slavery candidate was elected President. The push-back was massive and immediate, and the Civil War was the result. In the 1950s and 60s, the Civil Rights Movement made significant racial progress (ending Jim Crow, integrating school, The Civil Rights Act), and again, there was a major push-back: lynchings, police brutality, assassinations. We remember these historic events (the racial progress and the racist push-back) as connected, even though they sometimes took decades to develop.

In 2008, for the first time, a black man was elected President. I would argue that the mere fact that a black family occupies the White House makes this, right now, the third most significant period of racial progress in this country’s history. And the push-back has come in the form of Donald Trump. Whether he is personally racist, or whether he is just coincidentally attacking racial minority groups and using racially coded language, he is giving the racists of the country an opportunity to speak out and to rally in opposition to the racial progress that President Obama represents. It’s true that Trump talks about some issues that are real problems. And it’s true that some people support him just because they dislike Clinton so much. But 50 years from now, history won’t remember any of that, regardless of who wins.

It might be valuable to elaborate a bit on the type of racism I’m talking about. So, let me provide an example. About a year ago, I was playing a game of cards with six other white men in a pretty pro-Trump area of the country. About an hour into the game, two of the older men, out of the clear blue sky, started making ni**er jokes. Once they started, they didn’t stop. There were probably five or six in a row.

This type of situation, with seven white men sitting around a table playing cards and with nobody else listening is where racism usually lives. It hides from bright lights and microphones. It lies dormant. It is only expressed in seemingly friendly crowds, and even then it is often shrouded in the plausible deniability of “humor.” But it is nonetheless expressed, and it is done so to confirm that everyone is still on the same page. The unspoken premise is, “we all still hate black people, right?” And maybe everyone in the room is not on the same page, but anyone who objects is othered—seen as outside the social group.

That quasi-dormant racism becomes more overt across society when it needs to: when racial progress is being made. Lincoln’s election was one of those times. The Civil Rights Movement was one of those times. Obama’s presidency is one of those times. Those quiet, idle, “harmless” voices of racism see a world turning rapidly against their views, and they feel threatened.

Until 2015, those voices didn’t have a microphone, but they were around. That’s why polls have consistently shown for the past eight years that sizable chunks of the population falsely believe that Obama is a Muslim, and that he was not born in the US. Now, they have their microphone in Donald Trump.

Again, it is true that Trump has supporters who are not racist. But ask yourself, how will history remember this election? In light of all of the racist things Trump has said, plus the context of the Obama presidency, and the racial conflict of the last few years involving shootings of unarmed black men, the answer is easy. Win or lose, Trump will be remembered as the embodiment of a racist reaction to the racial progress represented by President Obama.

I will proudly tell my grandchildren that I was on the right side of history.

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What Went Wrong in Ferguson: a Lawyer’s Perspective

Something went wrong with the legal system in Ferguson. Most of the frustration does not seem to be directed at the grand jury itself; those 12 people had to make a tough call when confronted with a lot of conflicting evidence. Instead, many people’s anger is directed at the legal system itself. “Until we have a serious legal system conversation, [things like this are] going to keep on happening,” said Kobe Bryant. “Reserving this kind of special treatment for white police officers charged with killing black suspects cannot be an appropriate resolution,” said Jeffrey Toobin.

There is a widespread belief that the lack of an indictment of Darren Wilson is not an isolated issue. Many believe an underlying flaw exists in the legal system, but it is difficult to pinpoint. Reggie Bush of the Detroit Lions expressed this sentiment:

Just watching last night, and it wasn’t so much of the police officer not being indicted but just something about how it was handled from beginning to end. Just something seemed flawed about the system and about the way that situation was handled. I don’t know all the facts of what happened during when Michael Brown was killed, but I just know that a young man lost his life. Was shot how many times? Six? Ten times? Ten times. That’s a little excessive.

So it goes back to the way the situation was handled, from there to the grand jury. It just seems like … it just turned my stomach. … How does this keep happening, because it seems like history is just repeating itself, you know. Every year, once a year, something like this. So, I guess, when is it going to change? When are we going to see change? When are people going to start being held accountable? When are we going to … it’s just terrible that this keeps happening.

So what, exactly, is the flaw in the system? Local prosecutors are the wrong people to prosecute police officers accused of crimes.

We have an adversarial legal system for good reason. In a criminal case, the prosecutor advocates for the victim and presents the strongest possible case in favor of a conviction. The defense attorney, of course, presents the strongest possible case for the accused. That way, the jury hears the best possible arguments on both sides and should be able to reach a just result.

In theory, a prosecutor will present the strongest possible case for indictment to a grand jury. The prosecutor is not supposed to be unbiased. The prosecutor is supposed to advocate for the victim and attempt to convince the grand jury to indict the defendant. The defendant will later have a full and fair opportunity to present evidence to the contrary at trial.

But that’s not what happened in Ferguson. The prosecution didn’t really advocate for the victim, Michael Brown. Instead, the prosecution presented a “neutral” case, by giving as much evidence as possible to the grand jury. But nobody is ever really neutral. Everyone has some bias, no matter how small, in a situation like the one in Ferguson. That’s the benefit of having an adversarial system in the first place: we give both sides a lawyer and tell the lawyers not to be neutral.

When a prosecutor tries to present a “neutral” case to a grand jury, the adversarial system breaks down, and that is especially bad when the defendant is a police officer. County prosecutors and police officers work very closely with each other. They are both law enforcement officials. They’re on the same team. If Ndamukong Suh injures Aaron Rodgers, and a panel has to decide whether Suh deserves a suspension, would Jim Caldwell, the coach of the Lions, be a good person to present all of the evidence to the panel? Of course not; he and Suh play for the same team.

But that is what happens when prosecutors present “neutral” cases to grand juries involving defendant police officers. Perhaps that’s why allegations of police misconduct rarely result in charges, even though grand juries indict a very large percentage of defendants over all.

Victims of crimes need legal advocates. It is apparent that county prosecutors are not very good at serving as those advocates when police officers are the defendants. So, somebody else should run these prosecutions. Perhaps the job should go to special prosecutors appointed by governors. Maybe even allowing the families of the victims to appoint the prosecutor in cases like this one would make more sense.

We just cannot continue to leave these cases in the hands of county prosecutors. Even if you believe that Darren Wilson committed no crime, you have to acknowledge that there are larger issues at stake here. Even the appearance of impropriety or bias on behalf of a prosecutor can lead to distrust and “distrust of law enforcement presents a grave danger to the civic fabric of the United States.” Prosecutor Bob McCulloch should never have had the option of handling this case himself. Because black lives matter. And slain black boys and men need legal advocates, especially when police officers do the shooting.

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Now What Happens with Same-Sex Marriage?

Every once in a while the Supreme Court does something that turns experts’ predictions completely upside down. It actually happened twice during the 2012 Obamacare case (first, when Justice Kennedy clearly indicated his intent to find Obamacare unconstitutional during oral arguments; second, when the opinion was released and Chief Justice Roberts deemed Obamacare constitutional as a tax).

Monday, October 6th marked one of those moments. Nearly all of the experts thought that SCOTUS would keep all of the pending same-sex marriage cases on hold long enough for the Court to accept a case and issue a final decision on the matter. Instead, the Court denied all of the petitions before it, allowing lower court decisions that recognized a constitutional right to SSM to take effect, thereby increasing the number of states where same-sex marriages are permitted from 19 to 30 (and 35 quickly thereafter, as a result of the 9th Circuit’s decision the following day).

The big question is what happens next? As a practical matter, it is becoming increasingly likely that SSM might become legal in all 50 states without SCOTUS taking a case on the issue.

I’m going to move beyond the nitty-gritty details of what’s happening state-by-state right now. These details are quite entertaining, if you enjoy that sort of thing (for example, as of Wednesday afternoon, nobody really knew whether SSM was legal in Nevada or not), but let’s stay “big picture.”

There are currently 35 states where SSM is effectively legal. The states not on that list are: Michigan, Ohio, Kentucky, Tennessee, Texas, Louisiana, Mississippi, Alabama, Georgia, Florida, North Dakota, South Dakota, Nebraska, Missouri and Arkansas. That’s it. Those are essentially the only states still banning SSM (again, I know there are crazy things happening in Idaho and other states right now, but let’s focus on the larger situation).

There are basically two courses that SSM can take from this point forward. Course 1: All of the Circuit Courts of Appeals could rule in favor of SSM without SCOTUS ever accepting an appeal. Course 2: One of the Circuit Courts of Appeals could uphold a state’s ban on SSM, causing SCOTUS to take an appeal and ultimately decide the issue itself. Those are really the only two likely options at this point because if SCOTUS wanted to decide the issue without there being disagreement between the circuit courts, it probably would have taken one of the cases it denied on Monday. If Course 1 happens, there would be no real need for a SCOTUS opinion. SSM could become the law of the land in all 50 states as a result of all of the appellate courts ruling in favor of it.

Believe it or not, we’re actually getting reasonably close to Course 1 happening. The 50 states are divided into 11 Circuit Courts of Appeals. Three of the eleven (coincidentally, the 1st, 2nd and 3rd Circuits) consist entirely of states where SSM is legally recognized based on state law, so the 1st, 2nd and 3rd Circuits don’t need to decide the issue. Four more (4th, 7th, 9th and 10th) of the eleven have already ruled in favor of SSM.

That leaves only the 5th Circuit (Texas, Louisiana and Mississippi), the 6th Circuit (Michigan, Ohio, Kentucky and Tennessee), the 8th Circuit (North Dakota, South Dakota, Nebraska, Missouri and Arkansas) and the 11th Circuit (Alabama, Georgia and Florida).1

The thing is, the more cases that are decided in favor of SSM, the more difficult it will be for any court to decide against it. Judges don’t usually like being wrong, and we’re getting to the point where a court that upholds a ban on SSM might be the only appellate court to do that. And such a decision would run a significant risk of being promptly overruled by the Supreme Court. That situation would make the judges voting to uphold the ban at least appear quite wrong. Even conservative judges would hesitate to put themselves in that position.

The next court to issue a major decision will probably be the 6th Circuit, which heard oral arguments in a SSM case about two months ago. That decision could come any day. The consequences of the 6th Circuit’s decision are huge, as that decision will probably dictate whether the courts take Course 1 or Course 2. A pro-SSM decision would bump the number of states up to 39. And such a decision would create a 5-0 consensus among federal appellate courts that there is a constitutional right to SSM, with only three appellate courts left, making Course 1 reasonably likely.

On the other hand, a decision by the 6th Circuit to uphold state SSM bans would trigger Course 2, virtually guaranteeing SCOTUS review, possibly still by June 2015.

So, while all of the action seems to be in states like Idaho and Nevada right now, the real show is in Cincinnati, the seat of the 6th Circuit.


1. These lists only include the states in each circuit that ban SSM. Iowa, for example, is part of the 8th Circuit, but it already allows SSM, so I didn’t include it.

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How Same-Sex Marriage Overcomes the Originalism Argument

Because this is the era of LGBT constitutional rights, let’s talk about the arguments for and against finding a right to same-sex marriage in the 14th Amendment of the Constitution.

We’ll kick things off with the originalism argument, which goes something like this: “Those who drafted and voted to adopt the 14th Amendment in 1868 could not possibly have believed that they were creating a right to same-sex marriage, and since the words of the 14th Amendment haven’t changed, it’s meaning could not have changed in the past 150 years.” I explained this argument more comprehensively here.

There’s a problem with that argument: The Supreme Court has already decided that the outcome of a case that hinges on the language of the 14th Amendment can change.

In 1868, many of those drafting and voting on the 14th Amendment did not believe that it would require the integration of public schools.1 SCOTUS initially concurred in Plessy v. Ferguson. But in 1954, the Court changed its mind, even though the words of the 14th Amendment had remained the same. Importantly, SCOTUS did not say that the meaning of the 14th Amendment had changed. Instead, in Brown v. Board of Education, the Court explained that school segregation had always violated the 14th Amendment, but the Court just hadn’t realized it. The Court said that the social science illustrating the damaging effects of segregation on kids was not sufficiently developed prior to 1954 to demonstrate that “separate is inherently unequal.” In other words, the 14th Amendment always meant the same thing, but the American people (including the Supreme Court Justices) learned something in the interim, and that more advanced knowledge changed the practical outcome of the case.

Essentially the same thing happened regarding interracial marriage. There is evidence that the drafters of the 14th Amendment actively avoided language that would create a right to interracial marriage.2 Yet, SCOTUS held that the 14th Amendment created just such a right in Loving v. Virginia in 1967. The Court shrugged off an argument that the framers of the Amendment avoided creating a right to interracial marriage, and looked at the general purpose of the amendment. That is, “the clear and central purpose [of the 14th Amendment] was to eliminate all official state sources of invidious racial discrimination.” Based on that broad purpose, the Court reasoned that the 14th Amendment created a right to interracial marriage.

It’s very unlikely that those who drafted and adopted the 14th Amendment believed that they were barring states from adopting laws banning homosexual sex. But SCOTUS held just that in Lawrence v. Texas (in which current swing-Justice Kennedy wrote the majority opinion in 2003). Once again, SCOTUS explained that the meaning of the 14th Amendment hadn’t necessarily changed. We, as Americans, had just learned, as a people, that there is really no justification for laws banning homosexual sex aside from animus against homosexuals, and animus alone is not a valid justification for a law.

So, it may be true that (from a judicial interpretation perspective) the meaning of the 14th Amendment does not change, but as a practical matter, that proposition does not carry as much weight as some attribute to it. On multiple occasions, SCOTUS has held that the result of a case is now different than the framers would have expected in 1868 because we as Americans had learned something important in the interim.

So what have we as Americans learned about same-sex marriage since 1868? That one’s easy. We’ve learned that sexual orientation is not a choice.3 That makes it an immutable characteristic, which is important in determining whether courts should examine laws discriminating based on sexual orientation with heightened scrutiny (as is the case for laws discriminating based on race and sex).

It does matter that those who drafted and adopted the 14th Amendment probably did not believe that they were creating a right to same-sex marriage. SCOTUS can’t arbitrarily decide that the Constitution means something different now than it used to. Doing so would allow (unelected) judges to essentially create laws themselves and in a largely unaccountable way, since they have life tenure. So, if the 14th Amendment did not create a right to same-sex marriage in 1868, it probably shouldn’t protect such a right now.

But that argument certainly is not determinative. We, as Americans, have developed a more thorough understanding of sexual identity and orientation in a material way. The Supreme Court has previously held that the practical outcome of cases under the Constitution can change in light of society’s evolving understanding of the underlying issues. SCOTUS can absolutely take that more thorough understanding into account when it decides whether the the 14th Amendment contains a right to same-sex marriage.


1. Andrew Kull, The Color-Blind Constitution, Harvard University Press, Cambridge 1992.
2. Id.
3. See, e.g., Brief of the American Psychological Association as Amicus in Windsor case.

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The LGBT Constitutional Rights Era

Supreme Court eras are often defined by a single issue. In the early 19th century, SCOTUS wrestled with the nature and balance of power of American government in cases like Marbury, McCulloch and Gibbons. In the 1850s, SCOTUS tried to resolve the issues of slavery and race in Dred Scott. In the 1930s, SCOTUS increased federal power to intervene in the economy (disrupting private contracts) during the Great Depression. In the 1950s and ’60s SCOTUS created a new American racial constitutional identity. And now, in the early 21st Century, SCOTUS is establishing an LGBT constitutional identity.

Here’s what I find fascinating about each of those examples: you could know nothing about SCOTUS, but by knowing a bit about American history, you probably could have guessed which issue the Court addressed at which time. Why? Because the SCOTUS has tended to interpret the Constitution consistently with public opinion. The justices don’t say this in their decisions, but it matters what Americans think. This is part of the reason why Lochner was overruled in the 1930s, when people were clamoring for New Deal programs to escape the Great Depression. It’s part of the reason why the decisions of the Court reflected and advanced the progress of the Civil Rights Movement during the 1950s and ’60s, but as that movement lost steam in the ’70s, the Court began backtracking on some of its earlier decisions.

SCOTUS eras correspond with national discussions about the predominant issues of those eras. And the lasting major SCOTUS decisions tend to mirror the consensuses reached by the public. We are in the era of LGBT rights. We have already seen three major SCOTUS decisions: Romer, Lawrence, and Windsor. We are in the midst of a national discussion about LGBT rights. And that discussion is not limited to a policy discussion about laws protecting LGBT rights. The discussion is also about the meaning of the Constitution. To what extent should the Constitution protect the rights of LGBT individuals? And, more broadly, should a majority of Americans be able to take a moral position and pass laws based on that moral position if the laws passed primarily affect the lives of people in a minority group?

As much as the early 21st century is the era of LGBT rights, the October 2014 SCOTUS term is likely to be the year of LGBT rights. As of this writing, there are seven pending petitions asking SCOTUS to finally determine whether the 14th Amendment contains a right to same-sex marriage. And EVERYONE is asking SCOTUS to decide the issue. There’s not really a circuit split right now, but that could change very soon when the 6th Circuit issues its decision. So, there is a good chance that SCOTUS will decide whether the 14th Amendment contains a right to same-sex marriage by June 2015.

In light of that likelihood and in the spirit of the era of LGBT rights, I’ll be writing a series of posts tackling the major constitutional arguments for and against the right to same-sex marriage over the course of this term.

So, sit back, relax and enjoy the era of LGBT constitutional rights.

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Kennedy’s Schuette Decision is Really About Same-Sex Marriage

Yesterday, the Supreme Court upheld Michigan’s ban on the use of affirmative action in college admissions. Justice Kennedy wrote the opinion for a very divided Court. Kennedy’s opinion explained that the political process doctrine cases do not apply because those cases all involved specific racial injuries that didn’t exist in this case. For now at least, I’ll leave the merits of that analysis to be determined by others, but suffice it to say that Kennedy’s opinion could (and probably should) have ended there. But it went on. In fact, it went on for five more pages. And in those five pages, Kennedy talked about same-sex marriage—not about racial preferences in college admissions.

Of course, Kennedy didn’t overtly talk about same-sex marriage, but it sure sounded like that’s what he was talking about. He started this section of his opinion by pointing out that if SCOTUS were to strike down the Michigan law banning racial preferences, it would amount to the Court finding that the past 15 years of state public debate on this issue have been meaningless because SCOTUS was just going to take the issue out of the hands of voters anyway. (p. 14) This same argument could be made in a decision holding that there is no constitutional right to SSM.

Then, Kennedy really ramped up the rhetoric. He said the right of the individual not to be injured by the unlawful exercise of governmental power is an essential freedom secured by the Constitution, and that “liberty’s full extent and meaning may remain yet to be discovered and affirmed.” (p. 15) That is unequivocally pro-same-sex marriage language. But the paragraph wasn’t over. Here is the next sentence:

“Yet freedom does not stop with individual rights.”

Kennedy then waxed poetic about a type of freedom also guaranteed by the Constitution that acts as a counterweight to individual freedom: the freedom of citizens to act democratically to shape their futures. In other words, Kennedy did note that the Constitution sometimes protects individuals from majorities that want to trample their rights, but he focused on the fact that political majorities also have rights protected by the Constitution, and he ultimately concluded that majority’s rights often overcome the individual’s. To put it in Kennedy’s words, this right of the majority is “the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.” (p. 16) This line of reasoning would be disastrous to LGBT advocates in an opinion about SSM, as the necessary conclusion would be that each state has the right to decide for itself whether same-sex marriages should be valid.

And Kennedy went on and on about the importance of respecting the democratic process: “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” (p. 17) Does anybody really think he was still talking about racial preferences at this point? “Decent and rational grounds”? That doesn’t sound like strict scrutiny, which applies to racial classifications. He’s talking about LGBT issues, which voters can still decide based on “decent and rational grounds.”

Kennedy spoke so highly of the public’s ability to solve difficult political problems that it’s hard to believe that he’ll ever rule in favor of an individual right again: “An informed public can, and must, rise above [racial division and discord]. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.” (p. 17)

Remember Justice Scalia’s famous dissent in Windsor, the case in which Justice Kennedy’s majority opinion struck down part of DOMA? In that dissent, Scalia made a big show of taking excerpts from Kennedy’s opinion, changing a few words around, and demonstrating that Kennedy’s language could be easily transformed into an opinion declaring a constitutional right to same-sex marriage. (see page 23 of the dissent) That was greatly entertaining, but I can use the same technique to make the opposite point using Kennedy’s Schuette decision.

Imagine that next year, SCOTUS reviews Michigan’s ban on same-sex marriage. Here is the final few paragraphs of Kennedy’s Schuette opinion with just a few words changed to read as if it were the final few paragraphs in a decision upholding Michigan’s ban on SSM:

Mulkey, Hunter, and Seattle [Windsor, Lawrence, and Romer] are not precedents that stand for the conclusion that Michigan’s voters must be disempowered from acting. Those cases were ones in which the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race [sexual orientation]. What is at stake here is not whether injury will be inflicted but whether government can be instructed not to follow a course that entails, first, the definition of racial [marital] categories and, second, the grant of favored status to persons in some racial [marital] categories and not others. The electorate’s instruction to governmental entities not to embark upon the course of race-defined and race-based preferences [expanding the legal definition of marriage] was adopted, we must assume, because the voters deemed a preference system [an altered definition] to be unwise, on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this Nation seeks to put behind it [a dangerous change to family structure]. Whether those adverse results would follow is, and should be, the subject of debate. Voters might likewise consider, after debate and reflection, that programs [laws] designed to increase diversity [expand the definition of marriage]—consistent with the Constitution—are a necessary part of progress to transcend the stigma of past racism [discrimination].

This case is not about how the debate about racial preferences [sexual orientation] should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters. See Sailors v. Board of Ed. of County of Kent, 387 U. S. 105, 109 (1967) (“Save and unless the state, county, or municipal government runs afoul of a federally protected right, it has vast leeway in the management of its internal affairs”).  Deliberative debate on sensitive issues such as racial preferences [same-sex marriage] all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.

It is so ordered.

Why would Justice Kennedy include in his Schuette opinion these five unnecessary pages that seem to be more applicable to same-sex marriage? Because he’s furious! Everybody is misinterpreting his Windsor opinion and there’s almost nothing he can do about it. What’s worse is that Justice Scalia showed him up. Scalia anticipated the trend of district courts finding a constitutional right to same-sex marriage based on Kennedy’s Windsor opinion. As it turns out, Scalia was dead on, and Kennedy is furious about it. Kennedy wants to scream, “NO, YOU IDIOTS! I WAS NOT ANNOUNCING A RIGHT TO SAME-SEX MARRIAGE! IN FACT, I BELIEVE THE OPPOSITE! STOP MISINTERPRETTING WINDSOR AND MAKING SCALIA LOOK GOOD AT MY EXPENSE!!!” But Kennedy can’t do that because announcing how he would decide a future case would violate about a dozen unwritten rules of being a Supreme Court Justice.

So what can Kennedy do? He can insert five unnecessary pages into a high-profile (but unrelated) decision waxing poetic about the reasons why he believes that there is not a constitutional right to same-sex marriage—but without outright acknowledging that he’s really talking about same-sex marriage.

As I’ve said before, Justice Kennedy does not believe that there is a constitutional right to same-sex marriage. You’ll be hard-pressed to find a single expert who agrees with me. But it’s true.

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Is Same-Sex Marriage Unbeatable in Court?

It’s over,” declare David S. Cohen and Dahlia Lithwick at Slate. Cohen and Lithwick have boldly claimed that same-sex marriage can no longer lose in courts. The Slate article points to eighteen cases involving same-sex issues that have been decided since SCOTUS’s Windsor decision last June, which struck down part of DOMA. Same-sex marriage supporters have prevailed in all eighteen of these cases (twelve of which involved marriage rights and the other six involved other rights related to same-sex couples). And you can add one more to the list. Since the Slate article was posted, a federal judge struck down Texas’s ban on same-sex marriage. The Slate articles goes on, pointing to the trend of government officials refusing to defend same-sex marriage bans in court (as happened in New Jersey and Nevada).

The trend of legal success by same-sex rights advocates is certainly remarkable. But it is far too early to declare the fight over. For starters, few appellate courts have issued post-Windsor same-sex rights decisions yet. A same-sex rights win in district court is much less significant than any win at the appellate level. Plaintiffs (usually same-sex rights proponents) usually have an ability to seek out sympathetic judges at the district court level, but that ability largely disappears at the appellate level.

Moreover, very little that happens at the district and even the circuit court levels will affect the ultimate decision by the Supreme Court, which (almost certainly) lies in the hands of Justice Kennedy. Although Justice Scalia’s characterization of Justice Kennedy’s Windsor opinion suggests that it is inevitable that Kennedy will go on to hold that there is a national constitutional right to same-sex marriage, Scalia’s dissent also suggests that it is inevitable that the world is coming to an end as a result of Kennedy’s Windsor opinion.

Cohen and Lithwick’s Slate article is just one example of a strong trend among journalists and judges alike in using the Windsor opinion to conclude that state same-sex marriage bans are unconstitutional. But this reaction is seriously premature. In reality, there is little in the text of Justice Kennedy’s Windsor opinion that supports a conclusion that he will inevitably vote in support of a constitutional right to same-sex marriage.

Kennedy used a two-prong approach to arrive at his conclusion in Windsor. The Slate article describes this approach: “The first part [of Kennedy’s opinion] is all about federalism, not equality. Kennedy painstakingly explained that the federal Defense of Marriage Act offended basic principles of states’ rights because, historically, the states have always defined marriage and the federal government just goes along for the ride. … Justice Kennedy could have stopped there, but he didn’t.”

Could Justice Kennedy have stopped there? That’s not so clear. The opinion Justice Kennedy wrote controlled the outcome of the case because a majority of the Court was willing to sign it. If Kennedy had written an opinion striking down part of DOMA based on states’ rights alone, who would have signed it? The Justices who joined Kennedy to create a majority in Windsor were the four “liberal” Justices, who are not generally considered to be huge advocates of states’ rights. Those Justices probably would have wanted to write a separate opinion focusing on DOMA’s deprivation of dignity to same-sex couples. Meanwhile, the four “conservative” Justices didn’t want to strike down DOMA at all. Although those Justices may generally believe in states’ rights, they believed those rights were insufficient to strike down DOMA in this case.

In other words, instead of commanding a majority of five Justices, a Kennedy opinion based only on principles of federalism probably wouldn’t have garnered the support of a single other Justice. That opinion would still have controlled the result in Windsor, as five Justices would have nonetheless voted to strike down part of DOMA. But Kennedy’s reasoning based on states’ rights would have been weakened. Continue reading

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The Supreme Court’s Michigan Affirmative Action Decision: Part III of our Coffee House Conversation

Here are Part I and Part II of this conversation among the lawyers arguing the Schuette case in front of SCOTUS. Let’s pick it up where we left off:

JOHN:   Well, that sure was a brief1 appearance from Mike.

LARRY:  How did he find out so quickly about the new same-sex marriage opinion anyway?

JOHN:   I don’t know. Probably Twitter. Everybody is Twitter crazy these days.

LARRY:  Hey, Twitter is a valuable thing. Are you familiar with Being Black at University of Michigan?

JOHN:   Nope.

LARRY:  It’s a Twitter campaign that was started by some black students at UofM to raise awareness and serve as an outlet for problems they face at UofM. The #BBUM movement caught fire and has been picked up by other minority student populations at UofM as well. And it is having an impact. The university is working with student leaders to accommodate some of the students’ demands.

JOHN:   Hmm. Good for them. Do you think there’s a relationship between the 2006 constitutional amendment and the #BBUM movement?

LARRY: I think there’s a relationship between the 2006 amendment and the need for the #BBUM movement. That’s probably a topic for another day, though.

JOHN:   Agreed. Let’s get back to the primary issue: assuming the Political Process Doctrine is a valid doctrine, whether Michigan’s 2006 constitutional amendment banning affirmative action violates that doctrine.

LARRY:  Yeah, we need to talk about the Seattle case.

JOHN:   I hate the Seattle case.

LARRY:  I know you do. But Washington v. Seattle Sch. Dist. No. 1, which was decided back in 1982, is the one case that the Supreme Court is either going to rely on, distinguish or overrule in its Schuette decision. Prior to 1982, Seattle’s K-12 schools were de facto segregated. To solve that problem, citizen groups convinced the school board to institute a bussing plan, requiring that students be bussed around the city to ensure each school had a diverse student body. Opponents of the plan were able to get a statewide initiative passed, prohibiting school boards from using bussing to accomplish racial integration. The Supreme Court held that the initiative was unconstitutional because it placed extra burdens on citizens seeking to promote race-conscious approaches. Now, the Supreme Court has to be consistent, and I really don’t see how you can distinguish the Seattle case from this one.

JOHN:   It’s actually quite easy. The Seattle case did not involve a law or policy that prohibited preferential treatment. In fact, the Supreme Court has never held that a state law or policy that prohibits preferential treatment violates the Political Process Doctrine. And you’re forgetting that the text of the Seattle case itself actually brought up the possibility of the Seattle opinion later being used as an argument against affirmative action bans in university admissions. It specifically said that the Seattle reasoning would not apply in that event.

LARRY:  Now that’s just not true. Continue reading

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The Supreme Court’s Michigan Affirmative Action Decision: Part II of our Coffee House Conversation

Picking up where we left off in Part I

LARRY:  What took you so long to get coffee?

JOHN:   Some woman was holding up the line, trying to buy coffee for what appeared to be a group of four 14-year-olds. Do kids really drink coffee when they’re that young these days?

LARRY:  Who the heck knows what kids are doing these days? Apparently, they sit around meme-ing quite a bit.

JOHN:   Yeah. I really don’t get it. Anyway, let’s get back to Schuette. I can’t believe you keep making the argument that Michigan’s affirmative action ban discriminates against racial minorities.

LARRY:  Well, I think that’s a pretty significant problem.

JOHN:   The problem I have with it is that your argument is hypocritical. In the 2003 Grutter case, your allies argued that affirmative action is okay because it benefits all students at universities, not just the minorities. The winning argument suggested that by making sure universities have sufficiently diverse incoming classes, all students benefit from the variety of perspectives and experiences provided by their peers. Back in 2003, the Supreme Court bought that argument and ruled that although racial preferences are generally problematic, when it comes to university admissions, racial preferences are okay because they improve the quality of education for all students on campus.

LARRY:  Listen, there’s no point in rearguing the Grutter case.

JOHN:   Oh, I’m not trying to. That fight is over. I disagree with the result, but your side won the battle. My point is that your argument in this case conflicts with the argument that was made in favor of affirmative action in that case. Back then, your side won by arguing that affirmative action benefits everyone. Now, you’re arguing that Michigan’s affirmative action ban is unconstitutional because it only harms racial minorities. You can’t have it both ways. If it was true in 2003 that affirmative action benefits all students on campus, it cannot possibly be true that banning affirmative action only harms minorities now. Continue reading

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The Supreme Court’s Michigan Affirmative Action Decision Boiled Down to a Coffee House Conversation

I hope everyone had a great MLK Day this year. I like to imagine that in lieu of going to work on MLK Day, people all over the country spend an hour or so at a coffee shop, bar or even at the kitchen table discussing (at least thinking about) racial diversity. Towards that end, I have an annual MLK Day tradition of writing about a racial issue. This year, since SCOTUS is considering the constitutionality of Michigan’s ban on affirmative action, I planned to post an imagined coffee house conversation between the lawyers arguing Schuette v. Coalition to Defend Affirmative Action. But when MLK Day arrived, I couldn’t resist weighing in on the “Richard Sherman is a thug” controversy.

But the wait is over, I now give you the coffee house conversation between the lawyers involved in Schuette. The arguments below are mainly pulled from the briefs the lawyers filed1 (but are paraphrased and edited significantly to not be boring fit into a coffee house conversation).

LARRY2: John! How are ya? Good job on your argument in Schuette.

JOHN:   Hey Larry. Thanks. You too, what was that, four months ago now?

LARRY:  October 15th.3 It doesn’t seem like it was that long ago.

JOHN:   I know. I can’t tell you how often I get questions from people wanting to know whether SCOTUS is going to ban affirmative action.

LARRY:  I hear ya. It’s kind of a challenge to explain to people that Schuette is not about whether affirmative action is constitutional.

JOHN:   Right. I keep explaining that this case is really about six judges in Ohio4 nullifying the people of Michigan’s desire to ban discrimination.

LARRY:  Whoa. I wouldn’t put it that way. This case is really about whether Michiganders can entrench racial discrimination in their state constitution.

JOHN:   That’s ridiculous. Affirmative action is a form of discrimination, since white people are usually discriminated against. In 2006, the people of the state of Michigan amended their constitution to prohibit discrimination—a/k/a “granting preferential treatment”—in public education, government contracting and public employment based on race, sex, ethnicity or national origin. Some groups of Michiganders who support the type of discrimination that favors underrepresented racial groups in university admissions then brought this lawsuit, arguing that the 2006 constitutional amendment violates the federal Equal Protection Clause. But it simply does not make sense to say that a law that requires equal treatment violates the Equal Protection Clause. Continue reading

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