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April is Appeals Month

After the Supreme Court tossed the Defense of Marriage Act last June, lawsuits demanding full marriage equality proliferated. Freedom to Marry now counts 60 cases pending in 29 states and territories, from Alabama to Puerto Rico to Wyoming.

The Supreme Court’s DOMA decision was a 5-4 case. In dissent, Justice Antonin Scalia complained that the Court had in effect decided more than the DOMA case – the Court had spelled out the rationale for striking down state prohibitions of same-sex marriage. You won’t hear me say this often: Justice Scalia was right.

Since the DOMA decision, eight federal trial-level judges have ruled on the constitutionality of same-sex marriage bans. All eight of them have struck those bans down. And although six of those judges were appointed by Presidents Clinton and Obama, two were appointed by Presidents Reagan and George H. W. Bush.

No federal court of appeals has yet issued a post-DOMA decision on the constitutionality of same-sex marriage bans. But five judges in two courts of appeals have rule on preliminary motions, and all five implied that they agreed that same-sex marriage bans are unconstitutional. Four of those appeals judges were appointed by the second President Bush; one was appointed by President Obama.

In other words, the rightness of Justice Scalia on this point is so clear and undisputable that judges across the ideological spectrum recognize it.

Seven of the post-DOMA decisions are on appeal, plus a pre-DOMA case in which the appeal was held in abeyance pending outcome of the DOMA case. Those appeals are pending in the Fourth, Fifth, Sixth, Seventh, Ninth and Tenth Circuit Courts of Appeals, which collectively cover most of the country – 30 states, including 25 of the 33 states that do not already permit same-sex marriages.

Four of the eight appeals have been scheduled for oral argument: April 9 for the Nevada case in the Ninth Circuit; April 10 for the Utah case in the Tenth Circuit; April 17 for the Oklahoma case in the Tenth Circuit; and the week of May 12 for the Virginia case in the Fourth Circuit. Ordinarily, much would hang on the composition of the appeals panels, but with this issue, as I’ve said, the identity – and the ideology – of the judges has not mattered.

Appellate courts of course are not bound by trial court precedents; it works the other way around. But when eight trial judges have spoken on an issue, and all eight have ruled the same way, appeals judges do take note. The appeals courts no doubt include a number of Scalians among them, and the appeals judges may not be as uniform as the trial judges have been in striking down same-sex marriage bans.

The first post-DOMA federal appellate rulings should come within the next few months.

UPDATE MARCH 31, 2014:  The Tenth Circuit Court of Appeals today posted the names of the judges who will hear oral argument next week in the Utah case. The judges will be Paul J. Kelly, Jr., a George H. W. Bush appointee; Carlos F. Lucero, a Bill Clinton appointee; and Jerome A. Holmes, a George W. Bush appointee. Judge Holmes was a member of the two-judge panel that declined to stay the order striking down Utah’s same-sex marriage ban. The decision on the stay motion said that Utah had not shown that its appeal was likely to succeed. (The Supreme Court later issued a stay anyway.)


What a Long Way to Go

Yesterday’s edition of the New York Times included a City Room item called “New York Today: De Blasio’s Diversity.” The item was a brief recap of Mayor de Blasio’s appointments to date. The Times found that 54 percent of appointees to date are women and 55 percent are “minorities,” meaning Hispanics, African-Americans, or Asian-Americans.

The Times reported that former Mayor Bloomberg’s appointees were 48 percent women and 28 percent “minorities.” And the Times noted that de Blasio’s appointments much more closely match the city’s demographics than Bloomberg’s did.

So far, so good.

The item did not attract a huge number of comments, by on-line Times standards: 24 comments in 24 hours after publication. Ten of the comments challenged the merits of de Blasio’s appointees in one way or another. This point of view was perhaps most pointedly expressed by Eric, of White Plains: “Just hire the best people, for goodness sakes.”

The premise of this point of view is that a demographically diverse workforce, and specifically a workforce that is not mostly non-Hispanic white is inconsistent with merit-based hiring – that minority appointees are not “the best people, for goodness sakes.” To my dismay, only five comments – including my own – challenged that premise. I argued that talent is diverse, and therefore that merit-based hiring will necessarily yield a diverse workforce. Only if non-Hispanic whites held most of the city’s talent would merit-based appointment yield a workforce that is mostly non-Hispanic and white.

The New York Times readership is centered, one hopes, somewhere to the left of Fox News viewership. Yet the Times readership produced commentary substantially favorable to the point of view that minority hiring reflects bias whereas non-Hispanic white hiring reflects merit. (In defense of the Times readership, I should mention that the three comments with the most reader recommendations defended the merit of de Blasio’s diverse appointees.)

The sad fact is that we as a society are on the whole much more willing to assume the fairness and meritoriousness of the hiring process that ends in the selection of a non-Hispanic white candidate. When anyone else is selected, our collective knee jerks with suspicions of bias, quotas, favoritism, and other non-merits based explanations.

We have a very long way to go.

Malaysian Airline Captain Zaharie

In theory, the country of Malaysia is a constitutional monarchy. In fact, the country is an authoritarian bastion of religious, ethnic, linguistic and ideological discrimination.

The Malaysian head of state is a king, selected every five years by the hereditary Malay rulers of the nine Malay States. The other four Malaysian states have no say. The king in turn appoints the prime minister, selecting a member of the popularly elected House of Representatives who in the king’s opinion commands majority support in the House. The Senate majority is appointed by the king, on the recommendation of the king’s selected prime minister.

Parliamentary elections in 2013 were won by the opposition Pakatan Rakyat, or People’s Alliance. The Alliance took 51 percent of the vote, whereas the governing Barisan Nasional, or National Front, took 47 percent. Still, the National Front won 133 of 222 seats in the House, because district lines amplify the votes of rural voters, who favor the Front, over those of urban voters, who favor the Alliance. In fact, since gaining independence from Great Britain in 1957, Malaysia has been continuously governed by the National Front and its predecessor party.

By constitutional fiat, ethnic Malays are deemed to be Muslim, and all Malaysian Muslims are subject to Shariah courts. The National Front’s platform favors Malay Muslims, who are known as bumiputera. Bumiputera enjoy statutory preferences in employment, education, housing and business. Bumiputera are legally favored over Chinese, Indian and other ethnic minorities; over Buddhist, Christian, Hindu and other religious minorities; and over more than 130 linguistic minorities. The country suffers from considerable ethnic and religious tensions.

The Malaysian judiciary is nominally independent, but its actual independence is subject to serious question. The governing party has enjoyed the ability to shut down opposition newspapers, arrest and detain opposition figures without trial under the Internal Security Act, and deploy stern criminal laws to contain dissent.

A long-time opposition leader, Anwar Ibrahim, has been the subject of a long-term government smear campaign. In 1999, the prime minister publicly called Anwar a homosexual, and he was arrested and convicted on sodomy and corruption charges. The sodomy conviction was eventually overturned, but the trumped-up corruption charge was sustained, resulting in a five-year ban from politics.

Anwar was able to re-enter politics in April 2008, and sure enough, in June 2008 he was arrested on new sodomy charges. His acquittal was overturned on appeal earlier this month, and he was sentenced to five years in prison. Meanwhile, a mysterious “sex tape” surfaced in 2011, purportedly showing Anwar with a prostitute. The man on the video who is supposed to be Anwar is apparently significantly heavier than Anwar, and wears glasses (which Anwar does not) – and there is every reason to think that the tape is a set-up.

It is against this backdrop that we learn that the captain of the missing Malaysian Airlines plane was an opposition supporter.

Captain Zaharie Ahmad Shah has been a Malaysian Airlines pilot for more than 30 years, and is a qualified flight simulator examiner.

The investigation of the missing plane has been remarkable in highlighting the undemocratic nature of the Malaysian government. Officials standing before the world’s microphones are palpably unused to responding to challenging questions. They are manifestly not accustomed to public accountability.

The investigation has been remarkable in another respect: public disclosure of facts and evidence has been parsimonious and painfully slow. With one exception.

Malaysian government officials did not hesitate to disclose that Captain Zaharie had a flight simulator in his home, and that files had been deleted from its hard drive a month before the flight. I’ve never had a flight simulator in my home, but I delete files from my computer’s hard drive all the time. Deletion of files simply cannot stand by itself as a basis for suspicion.

The opposition party platform favors pluralistic democratic reforms for Malaysia, and Captain Zaharie expressed support for opposition principles on social media. I’m not much of a conspiracy fan, but any accusation against Captain Zaharie that may come from the Malaysian government must be regarded as deeply suspect.

The Courage of Our Convictions

Vladimir Putin may not know it, but he is desperate. Russia is a country in long-term decline. The Russian population peaked in 1992, at 149 million, is now about 143 million, and is projected to drop to about 129 million by 2040. One of the more dire projections is that the Russian population will decline to 111 million by 2050. By contrast, Americans now number almost 318 million, projected to grow to 405 million by 2040, and 439 million by 2060.

Immigration to the U.S. is booming, and will continue booming for the foreseeable future. Practically no one moves to Russia.

Russian GDP ranks eighth in the world, between Brazil (#7) and Italy (#9). The U.S. ranks first, and will continue to rank first until China, with a population four times as big as ours, overtakes us in the 2020s.

Russian ranks a pathetic 130th in the world in life expectancy, at 67.68 years. The U.S., which fares poorly among industrial nations at #40, has an average life expectancy more than ten years longer.

We say we believe in democracy, civil liberties, personal freedoms, and free markets. We believe in these things because we believe that liberal capitalist democracy is the superior form of social and political organization. But we sometimes lack the courage of these convictions. The collapse of the Soviet Union took us by surprise – we somehow didn’t accept the logical conclusion of our beliefs: that authoritarian rule is doomed to fail. Similarly the Arab Spring took us by surprise – we somehow didn’t understand that Arabs, like all people, want personal freedoms and individual rights, and will overthrow governments that deny them those things.

Putin’s government is unmistakably authoritarian. Putin’s people lack individual rights enforceable against the state. Putin’s Russia is doomed to fail.  QED.

American partisans are just now consumed with trivialities. Putin invaded the Crimea because President Obama does not project strength. Putin invaded the Crimea because President Obama’s foreign policy is “feckless.” Putin invaded the Crimea because the U.S. and Europe have no “leverage.” Obama should do such-and-such. Europe should do so-and-so.

In retrospect, the Cold War required only two things from us: that we remain true to our liberal, capitalist, democratic ideals, and that we avoid nuclear annihilation pending the Soviet collapse. The same is true today. All that is required to “win” this “war” is to remain true to our ideals, and to minimize death and destruction while we wait for Russian authoritarianism to collapse.

By all means, we should impose on Russia whatever sanctions we can. We should make a big show of support for Ukrainian democracy and self-determination. We should rally international opposition to Russian militarism. We should condemn Russian unilateralism. But we should do all of that with the clear understanding that it will not remove Russia from the Crimea, and it will not hasten the inevitable collapse of Putinism in Russia.

Our short-term goals should be modest. It is not failure if the Crimea separates from Ukraine, even if the Crimea re-unites with Russia. It is not failure if Ukraine is not brought into the European Union or NATO. It is not failure if Ukraine learns to balance deference to its Russian neighbor with its own democratic aspirations, as Finland did with remarkable dexterity for 50 years.

Now is time for patience, for a long view. Now is the time for the courage of our convictions.

Win By Losing

The Indiana legislature yesterday handed marriage equality advocates a big victory by voting in favor of a constitutional ban on same-sex marriage.


Indiana is one of only four states left where same-sex marriage is banned by statute. Same-sex marriage is banned by state constitutions in 29 states, and is legal in 17 states. Indiana, like Pennsylvania, West Virginia and Wyoming, has no constitutional prohibition against same-sex marriage.

It’s not for lack of trying. In Indiana, an amendment to the state constitution requires approval from two separately elected legislatures, followed by public approval at the polls. Efforts to pass a constitutional amendment began in 2004. The measure finally passed in the state Senate in 2010, but the Democratic-controlled House let it die. Republicans took full control of the legislature in the 2010 elections, and the constitutional amendment passed its first legislative vote by large margins in 2011. Legislative leaders brought the amendment up again in 2014, and it passed again.

But before approving the amendment the second time, legislators modified it by deleting a sentence intended to preclude same-sex civil unions, leaving only a one-sentence ban on same-sex marriages. The amendment just approved therefore has had only one legislative approval – before it can go to the voters, it must be approved by a second, separately elected legislature. The second legislative approval can’t happen until 2015, and the voter referendum can’t happen until November 2016.

Maybe that sounds more like delay than success. But sometimes injustice delayed is injustice denied.

Approval of the stricter (no marriage, no civil unions) amendment in 2011 was by a margin of 70-26 in the House and 40-10 in the Senate. Approval of the more modest (no marriage) amendment this month was by a margin of 57-40 in the House and 32-17 in the Senate. The House has 69 Republicans and the Senate has 36 – meaning that a handful of Republicans in each house voted against even the narrower anti-gay ban.

The constitutional amendment has gained some important opposition outside the legislature as well. Major Indiana employers like Eli Lilly and Cummins joined the opposition. So did Indiana University. Even former Republican Governor Mitch Daniels expressed serious reservations.

Public opinion on the question is hard to gauge, but support for the constitutional amendment seems to be dubious. Wikipedia compiles the results of seven polls from 2011 to 2013.  Four polls show statistical ties; one shows amendment supporters with a 29-point lead; and two show amendment opponents with leads of 16 and 20 percent. The rate of change in public opinion being what it has been of late, it may be that 2016 is just too late for marriage equality opponents in the Hoosier State.

Clarence Thomas’s New Old South

Supreme Court Justice Clarence Thomas this week told a Palm Beach Atlantic University audience that Americans are more race-conscious today than in Savannah, Georgia, in the 1960s. Justice Thomas referred to being the first African-American in town to go to a previously all-white school, but “rarely did the issue of race come up.” Thomas made this assertion in the context of claiming that people are way too “sensitive” today.

The justice continued with a jab at liberals: the “absolute worst” he has ever been treated, he said, “was by northern liberal elites.”

No one who has read my writing on race will expect me to claim that northern liberal elites are prejudice-free paragons of racial equity. But worse than segregated Savannah in the 1960s? For starters, isn’t the fact that he was the very first African-American student at his school a pretty good indication of race-conscious exclusion?

New York Times columnist Charles Blow trashes Justice Thomas’s remarks beyond my poor power to add or detract. But I’m a blogger, so I’m going to add anyway.

I have no first-hand knowledge of Savannah in the 1960s, or of being African-American in any time or place. But my grandparents lived in Atlanta during the late 1950s and early 1960s. After they moved north, my grandmother told me stories about their time in Atlanta, one of which in particular burned its way into my seven- or eight-year old mind.

My grandmother told me about a time she was walking in Atlanta, and she came around a corner at the same time that an African-American man came around the corner from the other direction. They inadvertently bumped into each other and the man reflexively put his hands up to break the collision. One of his hands went to my grandmother’s shoulder.

He was instantly horrified at what he had done: he had touched a white woman, and not just a handshake, in a time and place that African-Americans did not dare look white people in the eye. My grandmother related to me in graphic detail how the man immediately began to apologize, profusely, wholly out of proportion to the event. As he apologized, he backed out into the street in extravagant deference.

To explain the man’s reaction, my grandmother had to explain to me that the man was in mortal fear, and that he had cause to be in mortal fear. Had my grandmother screamed, for instance, or had someone seen the bump, the man might have been accused, he might have been arrested, or a mob might have delivered its justice right there on the street.

So a grown man abased himself in the street, abjectly begging forgiveness, because bumping into a white woman might ruin his life, or even take it.

Of course the issue of race never came up, because people were so much less sensitive back then.

The Tenth Circuit Pulls Ahead

Three weeks ago, I wrote about the two same-sex marriage cases that are farthest along in the federal appeals process. One is an appeal by the state of Utah from a federal trial judge’s decision that Utah’s same-sex marriage ban is unconstitutional. The appeal is in the Court of Appeals for the Tenth Circuit. The other is an appeal by same-sex couples from a federal trial judge’s decision that Nevada’s same-sex marriage ban is constitutional. That appeal is  in the Court of Appeals for the Ninth Circuit.

The Nevada case was briefed first, with final briefs due by January 2, compared to the Utah case, where final briefs are not due until March 4. But the Utah case has already been scheduled for oral argument, on April 10 at a special session of the court of appeals to be held in Denver. The Nevada case has not been scheduled for argument.

There are two important developments to report. First, the Tenth Circuit Court of Appeals now has a second case – an appeal by the state of Oklahoma from a federal trial judge’s decision in favor of same-sex marriage. The court of appeals scheduled expedited briefing, with final briefs due by April 7, and has already scheduled oral argument, for another special session in Denver on April 17.

Recall that the Tenth Circuit Court of Appeals rejected Utah’s request for a stay of the trial judge’s decision pending appeal, apparently because the court of appeals did not think that Utah’s appeal is likely to succeed. The Supreme Court did grant a stay, but that presumably doesn’t change the court of appeals’ notion that Utah is unlikely to win the case.

The second development came yesterday – Nevada’s Democratic attorney general and Republican governor announced their conclusion that defense of the case is not legally viable, and their intention not to defend the appeal at oral argument. News accounts did not indicate that they withdrew Nevada’s appeal, and at this point it’s not clear how or even whether the appeal will proceed.

If the appeal does proceed, recall that the Ninth Circuit Court of Appeals was the federal appeals court that struck down California’s Proposition 8 two years ago this month. Although the court went to lengths to tailor its decision precisely to the situation in California, I never found that effort to be convincing.

I don’t want to be overly optimistic, but I’m saying that it’s probably about 50-50 that both the ninth and tenth circuit courts of appeals will sustain same-sex marriage rights. That would legalize same-sex marriage in most of the western half of the country, adding a dozen marriage equality states to today’s 17 (plus the District of Columbia). Some states might require further litigation to get them to recognize that the decision applies to them (think Wyoming, Idaho, Kansas), but basically, the jig would be up.

Furthermore, without conflicting appellate decisions on the question of marriage equality in light of the Supreme Court’s DOMA decision, the Supreme Court might well opt not to hear the inevitable appeals. I think we need to delay a Supreme Court decision only two years or so to ensure a positive result.

The light has appeared at the end of the tunnel.


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