erik lundegaard

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Monday June 29, 2015

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

Confederate flag down, rainbow flag up

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.  

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Posted at 04:45 PM on Jun 29, 2015 in category Law
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Friday June 26, 2015

How Same-Sex Marriage Went from Being Banned to a Constitutional Right in 10 Short Years

marriage equality

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 HealthThe 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.

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Posted at 08:29 AM on Jun 26, 2015 in category Law
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Saturday May 23, 2015

Equality > Privacy

Jill Lepore has another much-recommended article in The New Yorker, “To Have and to Hold,” this one on the history of both reproductive rights for women and marriage-equality rights for gays and lesbians. Lepore's conclusion: 

There is a lesson in the past fifty years of litigation. When the fight for equal rights for women narrowed to a fight for reproductive rights, defended on the ground of privacy, it weakened. But when the fight for gay rights became a fight for same-sex marriage, asserted on the ground of equality, it got stronger and stronger.

Basically: Equality is greater than privacy, particularly in the digital when there is very little of the latter. 

Related: Way to go, Ireland!

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Posted at 01:50 PM on May 23, 2015 in category Law
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Monday March 02, 2015

The Utter Smallness of King v. Burwell

If Keith Olbermann still did his schtick he might make Michael Greve today's “worst person in the world.” From Jeffrey Toobin's “Hard Cases,” about King v. Burwell, which is being argued before the U.S. Supreme Court on Wednesday:

Shortly after the A.C.A. passed, in 2010, a group of conservative lawyers met at a conference in Washington, D.C., sponsored by the American Enterprise Institute, and scoured the nine-hundred-page text of the law, looking for grist for possible lawsuits. Michael Greve, a board member of the Competitive Enterprise Institute, a libertarian outfit funded by, among others, the Koch brothers, said, of the law, “This bastard has to be killed as a matter of political hygiene. I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it.”

I've heard nothing but arguments against King v. Burwell, and the arguments are getting more blistering. The Editorial Board at the New York Times, which doesn't exactly make waves, calls the lawsuit “a marvel of reverse-engineered legal absurdity” and its central claim “baloney.” Others, including in the Wall Street Journal, have argued that the plaintiffs don't even have legal standing in the matter—they haven't proven they were injured by the ACA—so the case should be dismissed on those grounds. An Indiana law professor suggests it would be “embarrassing” if the court didn't dismiss King v. Burwell

Toobin, in his piece, mostly argues against the smallness of the lawsuit: the four words in dispute (“established by the state”), and how, in better times, the confusion over the four words (if it's even confusion) would be dealt with. Which is to say: not this way. 

As for who would be harmed if the ACA is upended? Toobin doesn't exactly mince words:

If the Justices rule for the plaintiffs, the seven and a half million people on the federal exchange who receive tax subsidies will lose them immediately, which means that most of them will also lose their insurance, because they can no longer afford it. Insurance companies will then likely raise rates for the remaining policyholders, many of whom would drop their coverage, leading to even higher rates, and so on; this sequence is known as the A.C.A. death spiral. A remarkable coalition of state officials, insurance companies, hospitals, physicians, and nurses—many among them less than friendly to the Obama Administration—have filed briefs in the case warning of the consequences if the subsidies are withdrawn. A brief written by the deans of nineteen leading schools of public health states with bracing directness that, if the plaintiffs win this case, nearly ten thousand Americans will die unnecessary deaths each year.

Critics of the ACA have always railed on about Obama and his “death panels” but this may be another case of GOP projection.

Wednesday.

U.S. Supreme Court

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Posted at 09:13 AM on Mar 02, 2015 in category Law
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Friday February 20, 2015

Q&A with Eugene G. Iredale

Q: Over the course of your career, have the kinds of cases that come to you shifted? If so, does it represent a change in the larger culture?
A: You know what I’ve noticed? The mentality that you used to see only in drug cases is the same mentality that you see in many white-collar cases.

Q: Meaning?
A: Meaning that at some point, the people who do business in this country adopted the ethic of gangsters. Except that the drug dealers are far more honest and straightforward.

-- from my Q&A with San Diego criminal defense attorney Eugene G. Iredale. The whole interview is worth reading even if you don't care about the law but do care about any of the following: nuance, literature, battling against bullies, and “lessons of common human decency and politeness.”

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Posted at 07:27 AM on Feb 20, 2015 in category Law
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