Law postsTuesday September 22, 2015
Quote of the Day
“What's placed now in high relief by many of the current disputes is the tension inherent in religion clauses of the First Amendment. The amendment prohibits the ”establishment“ of religion while also protecting ”the free exercise thereof.“ When does government solicitude for religious exercise cross the line into establishment? When does policing of the Establishment Clause's prohibition go too far and stifle free exercise? There is no easy or obvious answer, and the Supreme Court has never given a consistent one. The relative weight the court has accorded each of the religion clauses shifts over time, reflecting in broad strokes the concerns of the general culture as the tension between the two principles comes to the fore in different ways.”
-- Linda Greenhouse, “Drawing the Line Between Civil and Religious Rights,” in The New York Times. And yes, she digs into the Kim Davis controversy.
Washington Supreme Court Fines State $100K Per Day For Underfunding Education
Here's what the Washington state constitution reads:
“It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex.”
Here's what King County Superior Court Judge John Erlick wrote in Feb. 2010 in the case of McCleary v. State of Washington, which held the state to that constitutional promise:
“State funding is not ample, it is not stable, and it is not dependable.”
Here's what the Washington state supreme court wrote in January 2012 upon affirming that ruling and maintaining jurisdiction over the case:
“This court cannot idly stand by as the Legislature makes unfulfilled promises for reform.”
Here's a prescient prediction from Thomas Ahearne, the winning attorney for McCleary, whom I interviewed for a feature, “Paramount Duty,” in the 2012 issue of Washington Super Lawyers magazine:
“Our Supreme Court has ordered our Legislature to do something that's hard, very hard, with their public schools, and we'll see if they do it promptly or if they drag their feet and stall. [Smiling] I have a good guess as to what they're going to do.”
And here's what the Washington state supreme court ordered today:
Effective today, the court imposes a $100,000 per day penalty on the State for each day it remains in violation of this court's order ...
Who said the law was dull?
The U.S. County that Sentences the Most People to Death is a Parish
Recommended reading: Rachel Aviv's latest New Yorker piece, “Revenge Killing,” about Rodricus Crawford, a young black man in Shreveport, Louisiana, which is part of Caddo Parish, who was charged, convicted and sentenced to death for the death of his own 1-year old son. It includes this paragraph:
Juries in Caddo Parish, which has a population of two hundred and fifty thousand, now sentence more people to death per capita than juries in any other county in America. Seventy-seven per cent of those sentenced to death in the past forty years have been black, and nearly half were convicted of killing white victims. A white person has never been sentenced to death for killing a black person.
The assistant D.A. (and now D.A.) who prosecuted the case, Dale Cox, “has been responsible for more than a third of the death penalties in Louisiana,” Aviv writes. She interviews him. He seems straightforward. He is a very effective lawyer who used to be against the death penalty and is now, in his 60s, in favor of it in Biblical proportions.
Reading, I wondered if the last sentence in the above quote meant that no white person had been executed for killing a black person in Shreveport or in the whole of the United States, but it must be the former because I've found evidence of the latter —although it's exceedingly rare. Some numbers from the Death Penalty Information Center:
Persons Executed for Interracial Murders in the U.S. Since 1976
- White Defendant / Black Victim (31)
- Black Defendant / White Victim (294)
As for Crawford? Much of the evidence that convicted him was determined by the Parish's forensic pathologist, but that evidence has been refuted by others around the country. One coroner says he finds the autopsy results so wrong he's “horrified”; another pathologist thinks Shreveport's pathologist "did not seem willing to consider the facts of the case. From the article, it seems a monumental injustice is taking place.
More Quotes on SCOTUS' Same-Sex Marriage Ruling
“I think of the gay kids in the future who, when they figure out they are different, will never know the deep psychic wound my generation – and every one before mine – lived through: the pain of knowing they could never be fully part of their own family, never be fully a citizen of their own country. I think, more acutely, of the decades and centuries of human shame and darkness and waste and terror that defined gay people's lives for so long. And I think of all those who supported this movement who never lived to see this day...”
-- Andrew Sullivan, “It Is Accomplished,” The Daily Dish
“Ultimately, though, the case is pretty simple. The government confers a bundle of rights on individuals who choose to marry. The constitution's guarantee of equal protection forbids any state from withholding those rights from the class of people who happen to be gay. End of story.”
-- Jeffrey Toobin, “God and Marriage Equality,” The New Yorker.
“Abbott, Jindal, and their allies are positing a right to discriminate—for local officials to refuse to conduct same-sex weddings, for photographers and bakers to refuse to do business with gay people, for wedding planners to advertise that no gay couples need apply. Their actions are the linear descendants of the Virginia officials who claimed divine guidance for their prohibition on interracial marriage. The First Amendment allows individuals to believe anything they want, but it does not allow them to use their beliefs as a license to discriminate in ways that would otherwise be limited by law. No one, at this late date, would claim a religious inspiration for a florist to refuse to sell flowers to an interracial wedding or for a magistrate to perform one; they should not have the right to refuse to do business for a same-sex wedding, either.”
-- Jeffrey Toobin, “God and Marriage Equality,” The New Yorker.
“I think the main issue now will be protection of religious liberty. Many of us have no problem allowing religious institutions to run their own organizations as they see fit, as long as they are sincere and in good faith. I don't think they have anything to fear. What we need to express at this point is magnanimity. We've got to let people who genuinely find [same-sex marriage] disconcerting the space and time to deal with it. That's what I would caution and urge.”
-- Andrew Sullivan, “A Word With: Andrew Sullivan,” The New York Times
The week that was: This made the rounds early on Friday after the Obergefell decision was announced. I wish you could see the artist's name more prominently.
How Same-Sex Marriage Went from Being Banned to a Constitutional Right in 10 Short Years
Seattle, December 9, 2012: Ahead of the curve, but not by much.
Q: The shift [to supporting marriage equality] is rather startling, isn’t it? States are approving or refusing to defend something that they banned less than 10 years ago.
Boies: I don’t think either one of us has ever seen, in our lifetime, where an issue as contentious as this, as much of a wedge issue as this, has changed as rapidly. When we started the case, there were two or three states, [representing] less than 5 percent of the population of the United States, that permitted marriage equality. Now, more than half of all American citizens live in a state that permits marriage equality. When we started, a substantial majority of American citizens opposed marriage equality; today, less than five years later, a substantial majority of American citizens favor marriage equality.
Q: So why now? What caused the change?
Boies: I think the single most important factor is that, starting in the ‘60s and ‘70s, gay and lesbian couples and individuals began to come out and be honest about their sexuality and their sexual orientation.
When I grew up, I didn’t know anybody who I knew was gay. I’m certain that I knew a lot of people who were gay, but you didn’t know they were gay because the extent of discrimination and hostility caused people—just as a matter of protectiveness—to try to deny, at least openly, their sexual orientation. What that meant was the field was wide open to caricature. [But] as more and more people had the courage, and it really took courage in those days, to acknowledge their sexual orientation openly, everybody else began to know people—members of their family, teachers, students, doctors, lawyers, engineers—who were gay. They realized that the myths they had grown up with just weren’t true. I think that as a whole new generation of people grew up knowing, sometimes from a fairly early age, people of differing sexual orientations, it became harder and harder, and for most people impossible, to use that as a basis for discrimination.
We’re both good at what we do, in part because we’re good at figuring out the argument the other side’s going to make so we can rebut them. This is a case in which we can’t figure out what the good argument is on the other side. The other side doesn’t have an argument.
Q: When you argued Prop 8 before the U.S. Supreme Court, Justice Scalia asked you, “When did this become a federal constitutional right?” Is that still a legitimate question?
Olson: It’s a question. I said, “When did it become unconstitutional to prohibit people from different races of getting married? When did it become unconstitutional to make children go to different schools based upon their race?” Well, the Supreme Court decides cases when they get there, and when they understand the damage that discrimination does when it’s against classes of our citizens based upon their characteristics—the color of their skin or, in this case, their sexual orientation—then the Supreme Court decides it. But it’s because we realize that there are a class of people that are distinguished because of who they are—their immutable characteristics.
We accepted slavery and we accepted discrimination and we accepted putting Japanese citizens in concentration camps in California. When did that become unconstitutional? That’s a rhetorical question that gets asked in Supreme Court arguments, and Justice Scalia, and I admire him enormously, is very good at it. But I think the answer is that it’s right now, here before your eyes, and you can declare it for the United States.
Q: Do you think your Virginia case, or another of the marriage equality cases, is going to wind up with this court? They seem to not want to decide the matter.
Olson: You never can predict which case the Supreme Court is going to take. We don’t know when it will come. But it’s going to come.
-- from my conversation with David Boies and Ted Olson in January 2014. Posted after today's momentous decision in Obergefell v. Hodges, Director, Ohio Department of Health. The Q&A also includes the following, which, yes, is still true today:
Q: And Justice Scalia? Can you win him over?
Olson: We try to win over everybody.
Boies: Some are harder than others.