I generally feel better when I’m the company of Judge Posner. I’m not always on board with his conclusions, but he’s an awfully smart guy. He hits harder than I did on the majority’s notion of “equal sovereignty” in yesterday’s case striking down a key provision of the Voting Rights Act.

On this concept of “equal sovereignty,” used to justify striking down the VRA because it treated the old Confederacy more harshly than other states in terms of flexibility for changing voting procedures, Judge Posner says, “This is a principle of constitutional law of which I had never heard—for the excellent reason that, as Eric points out and I will elaborate upon briefly, there is no such principle.”

He points out, for example, that some states, like Utah were admitted to the union only on the condition that they outlaw polygamy. Other states did not have their status in the union conditioned on the state of their polygamy laws. Judge Posner is skeptical of the states rights rhetoric from the majority:

That evidence—the record before Congress—should have been the end of this case. For apart from the spurious principle of equal sovereignty, all that the majority had on which to base its decision was tenderness for “states’ rights.” One doubts that this actually is a primary value for any of the justices. The same conservative majority that decided Shelby had rejected a more cogent argument for states’ rights when it held three years ago in McDonald v. City of Chicago that the Second Amendment—a provision of the Constitution designed to secure state autonomy—specifically, the right of states to maintain their own little armies, the militias, against federal abolition—creates rights against states’ limiting gun ownership. It seems that the court’s regard is not for states’ rights in some abstract sense but for particular policies that a majority of justices strongly favors.

Last October, I put up a post about the Second Circuit decision in the case of Windsor v. United States. Today, the United States Supreme Court, in a 5-4 decision, affirmed (pdf) the Second Circuit.

The issue was whether Section 3 of the Defense of Marriage Act (DOMA) was Constitutionally permissible in a case where a lesbian couple had married in Canada and had a marriage recognized in their home state of New York. When one member of the couple died, leaving her entire estate to her wife, because of DOMA, the tax bill was $363,000 more than it would have been for a heterosexual married couple. (The marital exemption in the federal tax code was not available to same sex couples.)

The five member majority for the Supreme Court were Justices Kennedy, Ginsburg, Sotamayor, Breyer, and Kagan joined. In dissent were Justices Roberts, Scalia, Alito, and Thomas. The decision begins with a discussion of the issue of standing. Standing refers to the ability of a person to bring an action in court. Courts don’t want to be in the position (and sometimes, under Article III are not permitted to be) of giving advisory opinions to parties on the same side or to people who have no stake in the litigation. So, for example, I can’t sue the government because I don’t like how it’s treating the Smiths down the road. Here, the Government decided after losing at the District Court that it wasn’t going to defend the constitutionality of DOMA. But, at the same time, it has never issued the tax refund. An organization called BLAG (Bipartisan Legal Advisory Group), part of the U.S. House of Representatives, stepped up to appeal the decision when the Attorney General would not. The court pointed out that there are a couple of flavors of “standing” — jurisdictional and prudential. If the lack of standing is jurisdictional; the court takes the position that Article III deprives them of the power to consider a case. If the lack of standing is prudential, good judicial practice gives them the discretion not to consider a case. (In my opinion, these distinctions end up being fairly arbitrary and applied haphazardly depending on whether court wants to reach the merits or not.)

In any event, the Court decided that there was sufficient standing to overcome both jurisdictional and prudential concerns — there was concrete adversity, inasmuch as the U.S. still retained the tax money and would have to give it back. And, with BLAG participating, the adversaries were contesting the matter vigorously enough to ensure that the positions and issues of both sides were well represented. This matter of standing becomes important because of the decision on the Proposition 8 (pdf) case out of California where proponents stepped in to advocate for Prop 8 after the State of California decided it was no longer interested in doing so. Unlike this case, the Court decided that proponents of Prop 8 didn’t have standing to challenge the District Court’s decision that it was unconstitutional. (Generally, citizens don’t have a particular interest recognized under Article III giving them the authority to litigate on behalf of legislation where the State declines to do so.) The Supreme Court did not endorse the merits of the lower court decision, but it stands for now and Proposition 8 is unenforceable. (Interesting split on the Prop 8 case by the way – the majority were Justices Roberts, Scalia, Breyer, Ginsburg, and Kagan while the minority were Justices Kennedy, Alito, Thomas, and Sotamayor.)

Back to the DOMA case, and on the merits, the Court begins with the presumption that marriage is primarily a state issue and noted the evolving view of same sex marriage in New York and other states. If a state recognizes a marriage between two individuals of the same gender, does it violate the Constitution for the United States to second guess that recognition? The majority said that it does. The Court reasoned that, while the federal government has limited authority to regulate marriage in furtherance of federal policy, DOMA goes further than that limited authority. It adds a directive applicable to over 1,000 federal laws and regulations directed to a class of persons that 12 states (including New York) have sought to protect. This mass of regulations goes too far in stepping on States’ more substantial interest in regulating marriage.

This paragraph seemed central to the Court’s reasoning, but I have to say, I didn’t quite follow it or get a sense it was premised on much in the way of prior authority:

Against this background DOMA rejects the long established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.

(Slip opinion at page 18). This part, however, was clear enough, “What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.” And, by doing so, the court held, the Federal Government violated the due process and equal protection clauses of the U.S. Constitution under the Fifth and Fourteenth Amendments.

The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.
. . .
The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

(Slip opinion at 20-21). And, while anchoring the decision on a State’s right to define marriage; it goes on to take a very dim view of treating gays differently than heterosexuals; making me wonder how this plays out if a federal law attempts to limit a State’s ability to define marriage in a way that discriminates. (This feels a little like an opinion written by committee; as if the beginning part about State’s rights was from the more conservative wing of the majority and now we’re entering into passages designed to win the approval of the more liberal wing.)

DOMA in structs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.

Again, when a state DOMA case comes along, I don’t see how you reconcile that language about the federal DOMA’s lack of legitimate purpose and high minded prose about human dignity with the competing language about a state’s right to regulate marriage.

That means, I think, Indiana’s “defense of marriage” act and anticipated state constitutional amendment are more vulnerable to attack under the federal Constitution than I would have anticipated. The clock is ticking on that state Constitutional amendment. It might get ratified by a majority in a referendum if it takes place in 2014. Beyond that, the demographics seem to be rapidly moving against support for such a measure.

Update A line from Justice Scalia’s dissent:

The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a “‘bare . . . desire to harm’” couples in same-sex marriages.

I’m pleased with the outcome; but Justice Scalia does a fairly good job of pointing out that the majority’s analysis isn’t all that it could be. Certainly, I would not anticipate success if I submitted a brief with an argument that looked like the court’s opinion. On the other hand, when he favors the outcome, Justice Scalia has shown himself content to go a little easier on the analysis if it leads somewhere unfavorable.

In 2006, Congress renewed a provision of the 1964 Voting Rights Act that the United States Supreme Court has struck down. In effect, the judiciary is second guessing Congress under cover of what amounts to a states rights argument. Of course, in political discourse, both “states rights” and “judicial activism” are applied so selectively that they mostly boil down to “stuff I like” and “stuff I don’t like.”

Lyle Denniston, legal analyst for SCOTUSblog breaks down the opinion here. The opinion is Shelby County (Alabama) v. Holder. One of the main issues was section 4 of the act which provided a coverage formula that subjected certain areas of the country – mostly the old Confederacy – to special restrictions given the historical prevalence of racist voter discrimination. In 2006, the U.S. Congress renewed that formula for another 25 years.

Certain states have to get pre-clearance from the federal government before they can change voting procedures. The Supreme Court, in today’s decision, complained that this is unfair because it deprives these states of equal sovereignty under . . . well, these strict constructionists don’t cite anything. But, let’s say that this was the default setting under the Constitution. It’s not an unreasonable declaration — even if it might come out of a penumbra of some sort.

But, the thing is, all of the covered states are south of the Mason-Dixon line. There was an incident, well known in some historical circles, where Southern states committed treason against the United States in pursuit of their state’s rights to allow some individuals to own other individuals. After their rebellion was put down, these states spent the better part of a century imposing Jim Crow laws. Slavery and Jim Crow laws were prevalent in these areas for approximately 450 years. The Voting Rights Act is about 50 years old, and, in 2006, Congress made a determination that a formula that covered a number of Confederate States was still appropriate. The arbiter of facts and credibility in a judicial situation – the District Court – agreed. Apparently reweighing the facts, substituting its own judgment for that of Congress and the District Court, the Supreme Court has determined that section 4 is unconstitutional — based on what Constitutional provision, I remain uncertain.

The Supreme Court has used its notion of “equal sovereignty” to substitute its judgment for that of Congress. It is difficult to square that with a stated preference for judicial restraint; particularly when one considers that the Supreme Court’s main complaint is that Congress is using decades old data to combat a centuries old problem.

Big news for marriage equality out of the Second Circuit Court of Appeals in the case of Windsor v. United States (pdf). Edith Windsor was married to another woman in Canada in 2007. They lived in New York state when, in 2009, Edith’s spouse died. The IRS said it was barred from allowing Edith to claim the spousal estate deduction (26 U.S.C. § 2056(A)) on account of section 3 of the Defense of Marriage Act (1 U.S.C. § 7) which mandates:

In determining the meaning of any Act of Congress, of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

The upshot was that, if DOMA is legal, Edith has to pay $363,053 more in taxes than she would have if her spouse was a man.

The Second Circuit indicated that its analysis might be different if it were reviewing a state law – the states having perhaps more latitude in prescribing the bounds and privileges of marriage under state law. But, in this case it was construing a federal law, DOMA, and its impact on another federal law, the federal estate tax. Jumping, for a moment, to the end, the court summarized:

Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status–however fundamental–and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.

The initial question was whether gays constitute a “quasi-suspect” class or not. If so, then somewhat heightened scrutiny is in order when considering equal protection claims. If not, then it’s only necessary that DOMA legislation have a “rational basis.” Rational basis analysis is respectful and lenient but not, the Second Circuit says, toothless. For example, a bare desire to harm a politically unpopular group doesn’t pass the test because the rational basis has to advance a legitimate governmental interest. (Emphasis in the opinion).

Whether DOMA has a rational basis was closely disputed by the parties. And there was some levity in the opinion concerning the moving target sometimes presented by rational basis analysis which can apparently be more demanding in the context of “historic patterns of disadvantage suffered by the group adversely affected by the statute.” Counsel defending DOMA called this “rational basis plus
or intermediate scrutiny minus.”

Ultimately, however, the Second Circuit dodged the “rational basis” question by concluding that heightened scrutiny is required. Such heightened scrutiny was required because, the Second Circuit concluded, gays constitute a “quasi-suspect” class. To determine whether a group is in the “quasi-suspect” category it is directed to consider whether: a) the class has historically been subjected to discrimination; b) the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,”; c) the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group; and d) the class is a minority or politically powerless.

In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C)homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

Some interesting notes – BLAG (the group of Representatives that intervened to defend the statute) argued that gays had not been discriminated against for historically long enough. To which the Court of Appeals said the 90 years BLAG acknowledges has been long enough. “Whether such discrimination existed in Babylon is neither here nor there.” With respect to category “B” the court notes, “The aversion homosexuals experience has nothing to do with aptitude or performance.” On the immutability question, the Court batted away BLAG’s argument about how orientation can change over time. (Shades of Marcus Bachmann). So can alienage or illegitimacy, the Court observed. But, in any event, when it comes to same sex people who have gotten married (the actual class in question for this case) “there is nothing amorphous, capricious, or tentative about their sexual orientation.” In terms of political power, the court compared recent political victories by gays as non-decisive to the issue and akin to those of women when earlier cases were decided. In addition, “homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.”

To withstand intermediate scrutiny, a classification must be “substantially related to an important government interest.” “Substantially related” means that the explanation must be “exceedingly persuasive.”. The justification must be genuine, not hypothetical and not invented after the fact in response to litigation.

The Court rejected BLAG’s argument that Congress had an important interest in passing DOMA to maintain uniformity on the issue of marriage-related benefits in protection of the treasury. The court observed that Congress has historically allowed states to go their own way on marriage. (For example, rules about age, divorce, consanguinity, and paternity.) Indeed, the sudden federal intrusion into marriage is, itself, suspicious. (All the states-rights advocates have been clamoring for repeal of DOMA, yes?)

Another justification was preserving the historical understanding of marriage. But, the court observed, ancient lineage doesn’t protect a law where it lacks a rational basis. Miscegenation and anti-sodomy laws had pretty long historical roots of their own.

Another justification was encouraging responsible procreation. The court recognized that this could be an important government interest but did not see that DOMA advanced that interest.

DOMA does not provide any incremental reason for opposite-sex couples to engage in “responsible procreation.”6 Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before. Other courts have likewise been unable to find even a rational connection between DOMA and encouragement of responsible procreation and child-rearing.

The Court also dismissed as “far-fetched” the idea that the laws passed by Congress might actually make people gay or effect their sexual orientation. It was also not persuaded by the idea that merely getting to use the extra-special word “marriage” would, on its own, promote stable opposite-sex marriages.

Because the court concluded that same sex married couples constituted a “quasi-suspect” class and because DOMA was not “substantially related” to an important government interest, the Second Circuit concluded, it must be regarded as being in violation of the Equal Protection Clause of the 14th Amendment. Judge Straub dissented, arguing that the gays are not a “quasi-suspect” class and that DOMA meets the rational basis test.

I’m getting my annual continuing legal education credits at the Indiana Law Update. An item that just got mentioned is nothing new, but worth knowing for many people are the factors that will be considered when a court determines whether or not to shield an individual from liability for actions taken, at least ostensibly, as part of a corporation.

Just a brief aside – I’ve long been skeptical of the compatibility of the corporate form with libertarianism and with conservatism where principles of personal responsibility and small government figure prominently. The corporate form is a government construct that exists primarily to shield individuals from liability for the consequences taken by them or on their behalf.

Anyway, the factors a court will consider when determining whether to “pierce the corporate veil” — in other words, expose the individual to liability for actions taken under cover of the corporate form:

1. Under capitalization.
2. Absence of corporate records.
3. Fraudulent representation by the corporation, shareholders, or directors.
4. Use of the corporation to promote fraud, injustice, or illegal activities.
5. Payment by the corporation of individual obligations.
6. Co-mingling of assets and affairs.
7. Failure to observe required corporate formalities; and/or
8. Other shareholder acts or conduct ignoring, controlling, or manipulating the corporate form.

The ones I’ve put in bold are the ones that, in my judgment, can be relatively common – particularly among small corporations, LLCs and the like. So, pro-tip: f you do business under a corporate form and want to keep your individual assets protected if a business activity goes south, you want to keep your personal finances separate from your corporate finances, and you want to keep records.

The Seventh Circuit, sitting en banc decided the case of Doe v. Elmbrook School District,(pdf) concluding, by a vote of 7-3, that the school’s practice of holding graduation ceremonies in an evangelical church violated the First Amendment’s Establishment Clause.

The Court’s decision was quick to point out that the determination was a factually sensitive one, not a blanket decision that school functions could never be conducted on religious property. But, in this case, for reasons having to do with the fact that minors were involved, that graduation is such an important ceremony, and that there were elements of proselytization, the school went too far and violated the First Amendment.

Apparently, the school had been conducting graduation ceremonies in the church facility since 2000 after the student body officers of the time complained that the school gym was too hot and crowded and recommended the church. The school superintendent and the school board president were both members of that church, though there is no particular evidence that this necessarily played a role in the decision to conduct activities there.

The lobby of the Church had (as one might expect) a lot of religious symbols and literature. Perhaps more unusual was that church members were passing out religious literature in the lobby and, at least on one occasion, church members handed out graduation materials as well. In the sanctuary where the ceremony took place, a 15 foot cross dominates the wall behind the dais. The church declined a school request to cover up the cross (or other permanent fixtures) but removed or covered other religious imagery. Bibles and hymnals remain in the pews where the audience sits.

In this case, high school students and their younger siblings were exposed to graduation ceremonies that put a spiritual capstone on an otherwise-secular education. Literally and figuratively towering over the graduation proceedings in the church’s sanctuary space was a 15- to 20-foot tall Latin cross, the preeminent symbol of Christianity. That symbol “carries deeply significant meaning for those who adhere to the Christian faith.” . . . Moreover, it is a symbol that invites veneration by adherents.
. . .
Upon passing through the exterior doors of the church, attendees proceeded into a lobby that contained numerous religious materials. Those materials included pamphlets for “middle school” and “high school” ministries. The middle school ministry pamphlet stated, “We are calling students to live and love like Jesus.” As previously noted, a poster on the wall asked, “Hey Jr. Highers! Who Are Your Heroes?” and depicts pop culture icons alongside Jesus Christ.
. . .
Put simply, the environment was pervasively Christian, obviously aimed at nurturing Christian beliefs and gaining new adherents among those who set foot inside the church.

Regardless of the purpose of school administrators16 in choosing the location, the sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state. That is, the activity conveyed a message of endorsement. High school graduations enjoy an iconic place in American life.

It was not permissible, the court held, to force students of different or no faith to choose between endure a pervasive religious environment or not attending a school function as momentous as graduation.

Judge Hamilton has a thoughtful concurrence in which he made an observation I appreciated:

The danger, of course, is that this “reasonable, objective observer,” as in most fields of law, tends to sound a lot like the judge authoring the opinion.

Judge Hamilton responds to Judge Posner’s dissent wherein Judge Posner says that Plaintiffs are being (I’m paraphrasing) hypersensitive ninnies by asking, “would Christian majorities feel comfortable or excluded if their public school graduation ceremonies were held in synagogues, mosques, or Baha’i temples, for example?” Of course they’d complain if the tables were turned, says Judge Hamilton.

This point is not a criticism of those who would prefer not to have their ceremonies in such locations. The point is that the plaintiffs in this case, who are not adherents of the majority Christian faith in this school district, were not unreasonable, obtuse, or hypersensitive in perceiving a government endorsement of Christianity when rites of passage with the symbolic importance of public high school graduations were held in a Christian sanctuary beneath the powerful symbol of the empty cross.

I have not had time to read the Supreme Court’s health care reform decision or much in the way of coverage, but my understanding is that the lynchpin of the bill – the insurance mandate – was upheld by a vote of 5 – 4 with Chief Justice Roberts providing the fifth vote. He was willing to regard it as a permissible use of the federal government’s taxing authority – not, as the other supporting justices offered, as an extension of the federal government’s power under the commerce clause.

A brief explanation by Lyle Denniston here.

Update Here is additional explanation on the question of Medicaid expansion. I confess that I don’t know the particulars of what the Medicaid expansion provisions entailed. But, the Supreme Court held that it was unduly coercive in requiring states with Medicaid programs to either accept the substantial expansion or forfeit all Medicaid funding, even that which had previously been in place. A different majority held that the remedy for this violation was to simply read the statute as making participation in the expanded Medicaid program voluntary.

Due to the politics of the thing, I expect what we’ll see is that Democratically controlled states will take the federal money and offer more coverage for its poor citizens under Medicaid and Republican controlled states will decline to participate in the expansion.

In the case of Smentek v. Dart, (pdf) the Seventh Circuit had to answer whether denial of class certification by one judge had any preclusive effect on a subsequent motion for class certification before a different judge in the same court based on similar facts and contentions.

The answer is, apparently, “no.” The case had to do with attempts to have a class of prisoners certified to challenge, as a group, the Cook County Jail’s allegedly inadequate provision of dental services to inmates. Two judges of the Northern District of Illinois had previously denied a request to certify a class. Drawing a third judge, a similar request was granted. The Seventh Circuit stressed that it was not, at this juncture, answering the question of whether the third judge was right or the first two judges were wrong; merely that the decision of the first two judges did not preclude the third judge from deciding differently.

A CBS MoneyWatch article by Alain Sherter entitled Jailed for $280: The Return of Debtors’ Prisons is just an awful piece of hack journalism – burying the critical facts to as to create a more emotionally compelling narrative.

It leads the reader to believe that debtors are being imprisoned because they owe money. You have to get to the third paragraph to find out that the individual isn’t, in fact, being jailed for owing money; notwithstanding the headline saying “Jailed for $280”.

Under the law, debtors aren’t arrested for nonpayment, but rather for failing to respond to court hearings, pay legal fines, or otherwise showing “contempt of court” in connection with a creditor lawsuit. That loophole has lawmakers in the Illinois House of Representatives concerned enough to pass a bill in March that would make it illegal to send residents of the state to jail if they can’t pay a debt.

And, even when the story kind of gives you the facts, it puts contempt of court in scare quotes and then calls the process a “loophole.” It’s not a “loophole.” The judge tells you to come to court, you disobey, and, guess what? The judge has the power to make you come to court and testify. That’s a feature of our legal system, not a bug. If you blow off a court order, you’re asking for trouble. The order is not an order to pay money — it’s an order to show up and testify. Poor people can answer questions too.