Keith Toney got a new passport last summer. Usually, no big deal. But Keith had to join a federal court lawsuit before the State Department agreed to issue a passport in his legal name.
The problem? Keith took the surname of his longtime partner Al Toney after they were married in Massachusetts in March 2004. Keith had no problems changing his driver’s license, credit cards, and so forth. But when he tried to renew his passport in 2005, the State Department told him that the Defense of Marriage Act (DOMA) — which prohibits any federal recognition of same-sex marriages — prevented it from issuing a passport in his legally recognized marital name.
Over the next four years, Keith managed as best he could when he and Al traveled to Costa Rica, where they own property. He got used to carrying his marriage license and a news article with him to help explain — sometimes across the Spanish-English language barrier — why his passport bore a different name from the rest of his identification. But he never got used to the fact that the government was forcing him to carry a document that no longer represented his real identity. “It was an insult,” he recalls today.
To put their anger to good use, Keith and Al signed on to the legal attack on DOMA that was tried earlier this month (May 6) before a federal judge in Boston. Along with other same-sex couples all legally married in Massachusetts, the Toneys argued that the federal government is violating the Constitution’s Equal Protection Clause by denying them the same privileges and benefits that it extends to other legally married couples in the Bay State and everywhere else in the country.
The State Department finally relented last year by agreeing to accept Keith’s marriage license as evidence of a change of name — one of several gay-friendly actions taken under Secretary of State Hillary Rodham Clinton. After five years, the department even waived the usual name-change fee and delivered the new passport within two days of a specially arranged interview.
The other plaintiffs in the case, Gill v. Office of Personnel Management, are not so lucky. Their complaints about the second-class status of their marriages are unanswered, at least, not yet. But attorneys for Gay and Lesbian Advocates and Defenders (GLAD), the Boston-based legal center that filed the suit, were professing cautious optimism after the 90-minute hearing before Senior U.S. District Court Judge Joseph Tauro.
For his part, Justice Department attorney Scott Simpson was in the awkward position of defending a law that the Obama administration says it wants to repeal. “This presidential administration disagrees with DOMA as a matter of policy,” Simpson said, according to news accounts of the hearing. “But that does not affect its constitutionality.”
As with Keith Toney’s problem, the stakes in the case for the 17 remaining plaintiffs _ seven couples and three men whose husbands died _ sound more like the product of bureaucratic snafus than the stuff of constitutional litigation. Lead plaintiff Nancy Gill has worked for the U.S. Postal Service for more than 20 years, but cannot provide the same benefits to her spouse, Marcelle Letourneau, that other married workers provide to theirs. Other couples cannot file joint federal income tax returns. The three “widowers” — including Dean Hara, husband of the late congressman, Gerry Studds — have been denied Social Security survivor benefits.
Congress passed DOMA in 1996 in an effort to thwart any progress toward gay marriage in the states. The House committee report on the bill said its purpose was to “express moral disapproval of homosexuality.” One section provides that no state is obliged to recognize same-sex marriages recognized in another state. The Massachusetts plaintiffs are challenging a second provision that defines marriage for federal law purposes as between one man and one woman.
In defending the law today, the Obama administration has expressly disavowed many of the lawmakers’ motives behind its enactment. Whatever the political reasons, the concession may also be sound legal strategy. The Supreme Court’s 1996 decision striking down an anti-gay initiative in Colorado, Romer v. Evans, held that anti-gay animus cannot be used to justify a law, even under the most relaxed constitutional scrutiny.
Instead, the government now argues the law preserves the status quo while states debate marriage rights for gays and lesbians. In court, GLAD attorney Mary Bonauto answered that the law actually “upended” the status quo by superseding the states’ traditional prerogative to define marriage.
Tauro encouraged the plaintiffs’ side by vigorously challenging Simpson on the point. “When did it become a federal matter — the definition of marriage?” Tauro asked. Massachusetts will be making a similar federalism-style argument later this month (May 26) in its separate legal action to strike down the law.
Tauro gave no indication when he will rule, but the Toneys — who watched the hearing along with the other plaintiffs from the jury box in Tauro’s courtroom — were optimistic afterward. “The judge was very respectful,” said Keith “We personally feel it went very well.”
“We’re hopeful people anyway,” Al added. “It would be kind of sad to go through life not being hopeful. The other way is pretty grim.”
Monday, May 17, 2010
Monday, May 10, 2010
Kagan's Confirmation Likely, Future Path Unclear
Elena Kagan appears on a path toward Senate confirmation as the next Supreme Court justice, but her ability to move the court in the direction that President Obama hopes for remains to be seen. Indeed, her first effort in that regard failed.
In announcing his selection today (May 10), Obama stressed along with Kagan’s academic credentials (Princeton, Oxford, Harvard) her reputation as a consensus-builder in six years as dean of Harvard Law School. Obama specifically pointed to Kagan’s role in hiring conservative scholars for the school’s ideologically fractious faculty as evidence of a judicial temperament open to diverse points of view.
Liberal advocacy groups have been pinning their hopes on Kagan as the silver bullet for pulling Justice Anthony M. Kennedy more often toward the four-justice liberal bloc and away from the bloc of four conservatives headed by Chief Justice John G. Roberts Jr. But as U.S. solicitor general, she ended on the losing side of the Court’s 5-4 decision in January striking down a major provision of the McCain-Feingold campaign finance law and freeing corporations and unions to spend unlimited sums on congressional or presidential elections.
Obama referred to the case, Citizens United v. Federal Election Commission, in his remarks, noting that Kagan took on the case as her debut before the Court last September despite the odds against the conservative majority’s upholding the law. But, echoing his earlier comments on the retirement of Justice John Paul Stevens, Obama said that Kagan understood that “in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
Kagan had been regarded as the presumptive front-runner for the vacancy ever since last fall, when Stevens signaled his likely retirement by hiring only one law clerk for the coming term instead of the normal complement of four for a sitting justice. In his remarks, Obama indicated he was drawn to Kagan’s life story: immigrant grandparents; her father a housing lawyer, her mother a public school teacher. He noted as well her firsts as a “trailblazing leader” — first female dean at Harvard Law School and now the first woman to serve as solicitor general.
In her academic career, Kagan produced only a limited paper trail: several law review articles on First Amendment issues, a pair on presidential power, and a few book reviews and speeches. They give conservative critics little ammunition for opposing her, but likewise leave liberal advocacy groups with only limited clues about Kagan’s stands on specific legal issues. In her longest academic writing, she dissected the Court’s free speech cases at length but offered no overarching theory of her own.
If confirmed, Kagan will come to the Court after service in all three branches of the federal government. She was law clerk to federal appeals court judge Abner Mikva and later to Supreme Court Justice Thurgood Marshall, both liberal icons. She served as special counsel to the Senate Judiciary Committee during the 1993 confirmation hearings for Justice Ruth Bader Ginsburg — and later wrote critically about Ginsburg’s evasion of senators’ questions. She then went on to work for Mikva as associate White House counsel during the Clinton administration.
Kagan will lack, however, the experience that the other eight justices have: prior service on a federal appeals court. Some conservatives are pointing to the lack of experience as a detriment. On the other hand, some Court watchers have been yearning for a justice to be selected from outside the judicial monastery. William H. Rehnquist — who served for 19 years as chief justice — and Lewis F. Powell Jr. in 1971 were the last justices to be nominated without prior judicial experience.
If she joins justices Ginsburg and Sonia Sotomayor as the third woman, Kagan would add to gender diversity, but otherwise she will make the Court less representative of the country as a whole. If she is confirmed, all nine justices will have attended either Harvard or Yale law school. (Stevens graduated from Northwestern.) She will be the seventh justice who counts the Boston-Washington corridor as home (all but Kennedy and Clarence Thomas). And Kagan would be the third Jewish justice — and, with six Catholics, leave the Court for the first time ever with no Protestant member.
Kagan’s background marks her as a liberal from her childhood on Manhattan’s Upper West Side through a college thesis on socialism and her campaign work for such Democrats as Rep. Theodore Weiss and 1988 presidential nominee Michael Dukakis. Republican senators looking for vulnerabilities will undoubtedly criticize her decision as Harvard dean to enforce the law school’s policy barring military recruiters on campus to protest the “don’t ask, don’t tell” policy on gays in the military. (She changed the policy after the Supreme Court ruled against law schools by an 8-0 vote.) With that exception, however, Kagan gives potential opponents few easy targets for attack.
Among the four front-runners for the nomination, Kagan was the youngest; she turned 50 last month. She would be the youngest justice to take the bench since Clarence Thomas was appointed at the age of 43 in 1991. (Justice Antonin Scalia took office in 1986, six months past his 50th birthday.) Her relative youth — and the prospect of a 20- to 30-year tenure — was undoubtedly a factor in Obama’s selection. Stevens retires after a 35-year evolution from moderate conservative to liberal leader. With limited evidence, predictions about Kagan’s role should be made and considered with utmost tentativeness.
In announcing his selection today (May 10), Obama stressed along with Kagan’s academic credentials (Princeton, Oxford, Harvard) her reputation as a consensus-builder in six years as dean of Harvard Law School. Obama specifically pointed to Kagan’s role in hiring conservative scholars for the school’s ideologically fractious faculty as evidence of a judicial temperament open to diverse points of view.
Liberal advocacy groups have been pinning their hopes on Kagan as the silver bullet for pulling Justice Anthony M. Kennedy more often toward the four-justice liberal bloc and away from the bloc of four conservatives headed by Chief Justice John G. Roberts Jr. But as U.S. solicitor general, she ended on the losing side of the Court’s 5-4 decision in January striking down a major provision of the McCain-Feingold campaign finance law and freeing corporations and unions to spend unlimited sums on congressional or presidential elections.
Obama referred to the case, Citizens United v. Federal Election Commission, in his remarks, noting that Kagan took on the case as her debut before the Court last September despite the odds against the conservative majority’s upholding the law. But, echoing his earlier comments on the retirement of Justice John Paul Stevens, Obama said that Kagan understood that “in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
Kagan had been regarded as the presumptive front-runner for the vacancy ever since last fall, when Stevens signaled his likely retirement by hiring only one law clerk for the coming term instead of the normal complement of four for a sitting justice. In his remarks, Obama indicated he was drawn to Kagan’s life story: immigrant grandparents; her father a housing lawyer, her mother a public school teacher. He noted as well her firsts as a “trailblazing leader” — first female dean at Harvard Law School and now the first woman to serve as solicitor general.
In her academic career, Kagan produced only a limited paper trail: several law review articles on First Amendment issues, a pair on presidential power, and a few book reviews and speeches. They give conservative critics little ammunition for opposing her, but likewise leave liberal advocacy groups with only limited clues about Kagan’s stands on specific legal issues. In her longest academic writing, she dissected the Court’s free speech cases at length but offered no overarching theory of her own.
If confirmed, Kagan will come to the Court after service in all three branches of the federal government. She was law clerk to federal appeals court judge Abner Mikva and later to Supreme Court Justice Thurgood Marshall, both liberal icons. She served as special counsel to the Senate Judiciary Committee during the 1993 confirmation hearings for Justice Ruth Bader Ginsburg — and later wrote critically about Ginsburg’s evasion of senators’ questions. She then went on to work for Mikva as associate White House counsel during the Clinton administration.
Kagan will lack, however, the experience that the other eight justices have: prior service on a federal appeals court. Some conservatives are pointing to the lack of experience as a detriment. On the other hand, some Court watchers have been yearning for a justice to be selected from outside the judicial monastery. William H. Rehnquist — who served for 19 years as chief justice — and Lewis F. Powell Jr. in 1971 were the last justices to be nominated without prior judicial experience.
If she joins justices Ginsburg and Sonia Sotomayor as the third woman, Kagan would add to gender diversity, but otherwise she will make the Court less representative of the country as a whole. If she is confirmed, all nine justices will have attended either Harvard or Yale law school. (Stevens graduated from Northwestern.) She will be the seventh justice who counts the Boston-Washington corridor as home (all but Kennedy and Clarence Thomas). And Kagan would be the third Jewish justice — and, with six Catholics, leave the Court for the first time ever with no Protestant member.
Kagan’s background marks her as a liberal from her childhood on Manhattan’s Upper West Side through a college thesis on socialism and her campaign work for such Democrats as Rep. Theodore Weiss and 1988 presidential nominee Michael Dukakis. Republican senators looking for vulnerabilities will undoubtedly criticize her decision as Harvard dean to enforce the law school’s policy barring military recruiters on campus to protest the “don’t ask, don’t tell” policy on gays in the military. (She changed the policy after the Supreme Court ruled against law schools by an 8-0 vote.) With that exception, however, Kagan gives potential opponents few easy targets for attack.
Among the four front-runners for the nomination, Kagan was the youngest; she turned 50 last month. She would be the youngest justice to take the bench since Clarence Thomas was appointed at the age of 43 in 1991. (Justice Antonin Scalia took office in 1986, six months past his 50th birthday.) Her relative youth — and the prospect of a 20- to 30-year tenure — was undoubtedly a factor in Obama’s selection. Stevens retires after a 35-year evolution from moderate conservative to liberal leader. With limited evidence, predictions about Kagan’s role should be made and considered with utmost tentativeness.
Monday, May 3, 2010
The Framers' Prayer for Religious Accommodation
Many Americans will gather in Washington and state capitals on Thursday [May 6] to observe the National Day of Prayer. Millions of others will take no notice of this 58-year-old tradition. But some number will take quiet offense that federal and state governments are lending their support to a religious practice in which they conscientiously do not believe.
Those in that relative minority are drawing encouragement from a ruling by a federal judge in Wisconsin last month [April 15] that the annual presidential proclamation of a national day of prayer, pursuant to a 1988 law, is unconstitutional.
The 1988 law, senior U.S. District Court Judge Barbara Crabb wrote in the 66-page ruling, “does not serve any purpose for the government or the country as a whole, but simply facilitates the religious activities of particular religious groups.”
Crabb’s ruling in Freedom From Religion Foundation v. Obama came two weeks before the U.S. Supreme Court turned a blind eye to another arguable violation of the First Amendment’s prohibition against an establishment of religion. By a 5-4 vote, the justices decided that federal courts in California had been wrong to block a congressionally mandated plan aimed at maintaining a lone Christian cross as a World War I memorial on what is now public land within the Mojave National Preserve.
Try as they might, courts cannot escape entanglement in church-state disputes. The reason is simple: religious groups, like other interest groups in this pluralistic democracy, seek to enlist the government’s support for their purposes. And, so, believers — and, in particular, the Christian majorities — press for recognition, support, and tangible assistance from governments at the local, state and national levels.
Courts are called on to police the boundaries that the framers wrote into the Bill of Rights more than two centuries ago. Congress — and later the states — were prohibited from enacting any law “respecting an establishment of religion” or “prohibiting the free exercise thereof.” Together, it was thought, the two religion clauses would safeguard religious freedom in the new republic.
The Free Exercise Clause has served the country well. Most of the free-exercise cases decided by courts have involved laws with incidental impact on religious practices or beliefs. Only rarely have laws been passed specifically aimed at preventing people from practicing their religions as they saw fit.
The Establishment Clause has proven more difficult to apply. The Supreme Court’s first modern-day encounter, in a 1948 decision, adopted the metaphor of a strict “wall of separation between church and state.” But the ruling upheld government-provided bus transportation for parochial school students.
The high court became stricter in policing that wall in the 1960s with the controversial decisions that banned organized prayer or Bible reading in public schools. In 1985, the court — in an opinion by Justice John Paul Stevens — struck down Alabama's “moment of silence” law for schools on the ground that it was explicitly written to encourage prayer in the classroom.
The court became more lenient of government support for religion in several decisions under former Chief Justice William H. Rehnquist that culminated in the 5-4 ruling in 2002 upholding the constitutionality of school vouchers even though they overwhelmingly benefited students in Catholic schools. Now, under Chief Justice John G. Roberts Jr., the trend appears to be continuing.
Roberts helped form the majority in the new decision, Salazar v. Buono, that blinked at the evident sectarian purpose of erecting a Christian cross as a memorial to the fallen servicemen of World War I. The cross, Justice Anthony M. Kennedy wrote in the main opinion, was “not merely a reaffirmation of Christian beliefs,” but also “a symbol” used to “honor and respect” the nation’s heroes. Reading the opinion naturally brought to mind the exchange during oral argument when the plaintiff’s lawyer noted to Justice Antonin Scalia that there are no crosses on Jewish gravestones.
The organizers of the National Day of Prayer appear to be equally blind to the national ideal of religious freedom and religious diversity. The official Web site for the observance repeatedly invokes Jesus’ name and cites almost exclusively to the Christian New Testament. The site pays not even lip service to the notion of a “Judeo-Christian” tradition, much less to the growing number of Americans who practice other religions or none at all.
In the desert cross case, Justice Samuel A. Alito Jr. endorsed Congress’s solution to the supposed dilemma: transfer the land to the Veterans of Foreign Wars so that it could maintain the cross, still designated as a national memorial for the World War I dead. That solution, Alito said, was faithful to “the spirit of practical accommodation that has made the United States a Nation of unparalleled pluralism and religious tolerance.”
In fact, the framers devised a very practical accommodation two centuries ago: freedom for religious practice plus freedom from government-established religion. Contrary to Alito, courts that do not maintain separation between church and state promote neither religious pluralism nor tolerance.
In her ruling, Judge Crabb saw no “accommodation” in the officially proclaimed day of prayer. The law, she said, was “taking sides on a matter of religious belief.” Better, she suggested, would be to celebrate a National Day of Religious Freedom. With or without an official proclamation, that tradition merits celebration and reaffirmation, every day of the year.
Those in that relative minority are drawing encouragement from a ruling by a federal judge in Wisconsin last month [April 15] that the annual presidential proclamation of a national day of prayer, pursuant to a 1988 law, is unconstitutional.
The 1988 law, senior U.S. District Court Judge Barbara Crabb wrote in the 66-page ruling, “does not serve any purpose for the government or the country as a whole, but simply facilitates the religious activities of particular religious groups.”
Crabb’s ruling in Freedom From Religion Foundation v. Obama came two weeks before the U.S. Supreme Court turned a blind eye to another arguable violation of the First Amendment’s prohibition against an establishment of religion. By a 5-4 vote, the justices decided that federal courts in California had been wrong to block a congressionally mandated plan aimed at maintaining a lone Christian cross as a World War I memorial on what is now public land within the Mojave National Preserve.
Try as they might, courts cannot escape entanglement in church-state disputes. The reason is simple: religious groups, like other interest groups in this pluralistic democracy, seek to enlist the government’s support for their purposes. And, so, believers — and, in particular, the Christian majorities — press for recognition, support, and tangible assistance from governments at the local, state and national levels.
Courts are called on to police the boundaries that the framers wrote into the Bill of Rights more than two centuries ago. Congress — and later the states — were prohibited from enacting any law “respecting an establishment of religion” or “prohibiting the free exercise thereof.” Together, it was thought, the two religion clauses would safeguard religious freedom in the new republic.
The Free Exercise Clause has served the country well. Most of the free-exercise cases decided by courts have involved laws with incidental impact on religious practices or beliefs. Only rarely have laws been passed specifically aimed at preventing people from practicing their religions as they saw fit.
The Establishment Clause has proven more difficult to apply. The Supreme Court’s first modern-day encounter, in a 1948 decision, adopted the metaphor of a strict “wall of separation between church and state.” But the ruling upheld government-provided bus transportation for parochial school students.
The high court became stricter in policing that wall in the 1960s with the controversial decisions that banned organized prayer or Bible reading in public schools. In 1985, the court — in an opinion by Justice John Paul Stevens — struck down Alabama's “moment of silence” law for schools on the ground that it was explicitly written to encourage prayer in the classroom.
The court became more lenient of government support for religion in several decisions under former Chief Justice William H. Rehnquist that culminated in the 5-4 ruling in 2002 upholding the constitutionality of school vouchers even though they overwhelmingly benefited students in Catholic schools. Now, under Chief Justice John G. Roberts Jr., the trend appears to be continuing.
Roberts helped form the majority in the new decision, Salazar v. Buono, that blinked at the evident sectarian purpose of erecting a Christian cross as a memorial to the fallen servicemen of World War I. The cross, Justice Anthony M. Kennedy wrote in the main opinion, was “not merely a reaffirmation of Christian beliefs,” but also “a symbol” used to “honor and respect” the nation’s heroes. Reading the opinion naturally brought to mind the exchange during oral argument when the plaintiff’s lawyer noted to Justice Antonin Scalia that there are no crosses on Jewish gravestones.
The organizers of the National Day of Prayer appear to be equally blind to the national ideal of religious freedom and religious diversity. The official Web site for the observance repeatedly invokes Jesus’ name and cites almost exclusively to the Christian New Testament. The site pays not even lip service to the notion of a “Judeo-Christian” tradition, much less to the growing number of Americans who practice other religions or none at all.
In the desert cross case, Justice Samuel A. Alito Jr. endorsed Congress’s solution to the supposed dilemma: transfer the land to the Veterans of Foreign Wars so that it could maintain the cross, still designated as a national memorial for the World War I dead. That solution, Alito said, was faithful to “the spirit of practical accommodation that has made the United States a Nation of unparalleled pluralism and religious tolerance.”
In fact, the framers devised a very practical accommodation two centuries ago: freedom for religious practice plus freedom from government-established religion. Contrary to Alito, courts that do not maintain separation between church and state promote neither religious pluralism nor tolerance.
In her ruling, Judge Crabb saw no “accommodation” in the officially proclaimed day of prayer. The law, she said, was “taking sides on a matter of religious belief.” Better, she suggested, would be to celebrate a National Day of Religious Freedom. With or without an official proclamation, that tradition merits celebration and reaffirmation, every day of the year.