Thursday, May 14, 2015

Programming Note

LLW will be on hiatus for several weeks. Be on the lookout for a new post on Tuesday, June 2!

Happy Summer!

Tuesday, May 12, 2015

Reviewing Respondents' Briefs in Obergefell

*This is the third in a multi-post series on the parties' briefs in Obergefell v. Hodges, the consolidated same-sex marriage case. The first two posts are available here and here.


Great introductions aren’t just for Petitioners’ briefs! In the same-sex marriage case, two Respondents’ briefs contain strong introductions that hit their main points immediately. In its brief in DeBoer, Michigan tries to de-emphasize the marriage question, instead relying on democratic principles:

This case is not about the best marriage definition. It is about the fundamental question regarding how our democracy resolves such debates about social policy: Who decides, the people of each state, or the federal judiciary? Because the U.S. Constitution is silent about how to define marriage, the issue remains where it has always been: with the people. When people of good will disagree—and they invariably do—they should engage in compassionate and civil dialogue in the public square. As Justice Holmes observed, our Constitution is made for people of fundamentally differing views. The issue of how to define marriage is no exception.

Similarly, in Tanco, Tennessee stresses the importance of State sovereignty:

In our federal system, States are equal sovereigns, and one State may not impose its policy choices on another State. This proposition has particular force in an area of traditional state concern, like marriage. Over the last 12 years, some States have expanded their definitions of marriage, and petitioners insist that the remaining States must fall in line and adjust their own policies to match that expanded definition. The Fourteenth Amendment does not compel such a result.


I’ve talked before about the importance of themes. Good themes are memorable and tie facts and arguments together.  

In its brief in DeBoer, Michigan advances its theme that the people, not the courts, should decide social issues, including whether to allow same-sex couples of marry. Michigan ties this theme on the importance of public debate and the democratic process into every legal argument it makes:

-As the public discussion shows, all sides of the marriage debate can present good-faith policy arguments supporting their definition. These varying views are the essence of democracy and the reason the Court should leave this decision where the U.S. Constitution places it: in the hands of the states….
-The people of Michigan have elected to prove legal support for and foster relationship that may lead biologically to children. The people could also elect to support a different marriage institution. That freedom is what the democratic process contemplates.

-Under rational basis review, courts give the legislative body—here, the people themselves—the benefit of every doubt: those attacking the rationality of the legislative classification have the burden to negate every conceivable basis which might support it.

Kentucky, in its Bourke brief, employs the same theme, stressing the importance of a “consensus” of Kentuckians:

-The statutes and constitutional amendment that are the subject of this litigation did not change the law in Kentucky. Rather, they codified what has always been the consensus of Kentuckians.

-The consensus of the Kentucky legislature and the citizens of the Commonwealth to maintain the traditional, man-woman marriage is no less a proper exercise of Kentucky’s sovereign authority within the federal system than New York’s exercise of its sovereign authority to change the definition [in Windsor].

-Windsor does not stand for the proposition that Kentucky (and all states like it whose citizens’ consensus is to maintain the traditional man-woman definition of marriage) is required to conform to the consensus of the citizens of California, Connecticut, New York, or Hawaii when their citizens move to Kentucky.

In-Depth Discussion of Sixth Circuit Opinion

In their briefs, Petitioners spent very little time summarizing the Sixth Circuit’s opinion, which they are seeking to overturn. In contrast, Respondents spend a great deal of time outlining that opinion. And their outlines aren’t simply disinterested. They write in a way that implicitly says: This opinion is sound.
Consider this passage from Ohio’s Obergefell brief:

Writing for the majority, Judge Sutton first noted that as a lower court he was bound by Baker v. Nelson. He then examined the question presented through a number of lenses—originalism; rational basis review; animus; fundamental rights; suspect classifications; evolving meaning—and concluded that not one of the plaintiffs’ theories makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.

Think about “number of lenses” and the listing of all those “lenses.” This says to the Court: The Sixth Circuit looked at this issue, and looked at it hard from every conceivable angle, but found the laws constitutional.

In the Tanco brief, Tennessee employs a different technique to make the same argument. Tennessee outlines the Sixth Circuit’s majority opinion using key language from the opinion and makes that language appear authoritative:

Determining that state laws codifying the traditional definition of marriage do not burden a fundamental right and do not involve a suspect classification…the court found that such laws have a rational basis. First, “awareness of the biological reality that couples of the same sex do not have children in the same way as couples of the opposes sexes and that couples of the same sex do not run the risk of unintended offspring suffices to allow the States to retain authority over an issue they have regulated from the beginning. Second, “a State might wish to wait and see before changing a norm that our society (like all others) has accepted for centuries.”

I’ll talk more about the writing techniques used in Respondents’ briefs in my next post.   

Friday, May 8, 2015

I'll Be There for You

The iconic 90s TV show Friends impacted popular culture in many ways, from The Rachel haircut to Joey's "How you doin'?" And now, the show has inspired Judge Janice Rogers Brown of the D.C. Circuit Court of Appeals.  

This week, in an opinion in a forfeiture case, Judge Brown accused the government of acting like Rachel from Friends:

In an episode of the iconic 1990s television show Friends, Joey Tribbiani tries to dissuade Rachel Green from moving to Paris. Joey asks Rachel to flip a coin. If he wins the coin flip, she must agree to stay. Rachel flips the coin; Joey loses. When later recounting the story to Ross Gellar, a befuddled Joey says, "[w]ho loses fifty-seven coin tosses in a row?" Friends: The One with Rachel’s Going Away Party (NBC television broadcast Apr. 29, 2004). Before Ross can answer, Joey explains Rachel’s rules: "Heads, she wins; tails, I lose." Id.

The proceedings in this case have largely followed the same rules. SunRise Academy ("SunRise") claimed the federal government seized property from criminal defendant Charles Emor belonging to SunRise. But the government succeeded in excluding SunRise from Emor’s criminal proceedings, suggesting SunRise could press its claims to the property in a third-party forfeiture proceeding. When SunRise later did so, the government filed a motion to dismiss the petition, contending that SunRise should be denied a hearing based on findings the court made in the prior proceeding from which SunRise was excluded. Because this heads the government wins and tails SunRise loses form of criminal forfeiture does not comport with the statutory scheme, we reverse.

The opinion in United States v. Emor is here.

Happy Friday!

Tuesday, May 5, 2015

More on Petitioners' Briefs in Obergefell

*This is the second in a multi-post series on the parties' briefs in Obergefell v. Hodges, the consolidated same-sex marriage case. The first post is available here.

Order of the Arguments

Petitioners in the four cases make the same general arguments:

The bans violate the Due Process clause because they deny same-sex couples the fundamental right to marriage.

The bans also violate the Equal Protection clause because they discriminate on the basis of sex or sexual orientation and don’t pass heightened scrutiny. Alternatively, the bans violate the Equal Protection clause because they are not rationally related to any legitimate government interest.

As those knowledgeable about constitutional law know, the Court has been hesitant (especially in recent years) in equal protection analyses to increase the number of suspect classes. Unless a class of persons is part of a suspect or quasi-suspect class, laws that affect them are subject to rational basis scrutiny. Sex is already a quasi-suspect class, but sexual orientation is not.   

Sketch of Obergefell Oral Argument
Sketch by Art Lein (
Courtesy of

While the arguments are similar, the order differs in, I think, meaningful ways.

The Bourke petitioners argue Kentucky’s refusal to issue marriage licenses to same-sex couples (1) violates their fundamental right to marriage; (2) violates the equal protection clause (sex and sexual orientation); and (3) does not pass even rational basis scrutiny. The Tanco petitioners make the same arguments in the same order, but add arguments that the bans violate the fundamental right to travel (a due process argument), are identical to DOMA in their harms (and subject to some form of heightened scrutiny), and frustrate principles of federalism.  

Photo of John Arthur & Jim Obergefell
Photo courtesy of
The Obergefell petitioners take a different approach in starting with and emphasizing the similarities between the States’ recognition bans and the language of the Defense of Marriage Act (DOMA), which was struck down in Windsor. Then, they argue that the recognition bans (1) violate due process (fundamental right to marriage and protected liberty interests); (2) violate the Equal Protection clause (sexual orientation and sex); and (3) nonetheless fail under rational basis review. 

The DeBoer petitioners, however, start their argument with rational basis review. They first argue that the bans don’t pass rational basis scrutiny, then argue that heightened scrutiny should apply because sexual orientation is a protected class before concluding with the due process argument (fundamental right to marry).

I like the DeBoer and Obergefell approaches best. Here’s why:

April DeBoer & Jane Rowse with their children
Photo courtesy of
The Court decided Windsor just two years ago—a blink in jurisprudential time. In Windsor, the Court struck down DOMA by subjecting it to some heightened form of scrutiny, but did so without finding sexual orientation is a suspect class. I find it hard to believe the Court—made of the same members it was two years ago—will change its position now and find sexual orientation a suspect class. So I think the arguments for heightened scrutiny (while they must be made) aren’t going to convince a majority. Because those arguments likely aren’t the best the parties could make, I would not have lead with them in my brief.

I like the DeBoer approach because it recognizes that the Court
likely will apply a rational basis review (or some heightened scrutiny less than strict scrutiny) to the marriage and recognition bans. The DeBoer petitioners use their prime space (at the beginning of the brief) to argue the States cannot show a legitimate purpose for the ban rather than using that space for an argument the Court isn’t likely to accept.
And the Obergefell approach is also a good one because it attempts to draw a connection between DOMA in Windsor and the recognition bans in these cases. The Obergefell brief discusses the “design, purpose, and effect” of the bans, which Justice Kennedy discussed at length in the Windsor opinion striking down DOMA for its impermissible “design, purpose, effect.” Windsor is arguably the most persuasive and on-point authority (along with Lawrence and Loving), so the Obergefell petitioners’ reliance on it is wise.                

Use of Non-Legal Sources

Non-legal sources can be very important, though many litigants, I suspect, don’t even consider using them. The DeBoer and Bourke petitioners both expertly cite non-legal sources to support their arguments.   

In addressing the States’ claim that the marriage and recognition bans further “responsible procreation” in opposite-sex married couples, the Bourke petitioners cite census data to show that opposite-sex couples can marry regardless of whether they intend to or even can have children. According to the Bourke census data, more than 6 million married U.S. women do not have children and more than half of married women are older than child-bearing age. The Bourke petitioners also use census data (from an amicus brief) to show that 125,000 same-sex households are raising children—more than 220,000 of them.

The DeBoer petitioners use non-legal sources in a different way. Their brief includes extensive summaries of the testimony of various experts offered at trial to support their positions. The DeBoer writers outline the testimony of expert psychologist Dr. David Brodzinsky, who testified that no research shows that children need parental role models of both genders to be healthy or well-adjusted. They also summarize the testimony of Stanford sociologist Michael Rosenfeld, who testified that the sociological consensus for at least the last 30 years has been that successful child rearing depends on the quality of parenting, availability of resources, and family stability, not gender or sexual orientation.

They even included statements of the testimony of:

-A Yale historian, who testified about the historical discrimination of gays and lesbians in the United States and Michigan

-A demographer, who testified about the demographics of gays and lesbians in the United States and Michigan

These are excellent uses of non-legal sources to support legal arguments.

Catchy, Interesting Passages and Sentences

The best brief writers use short, catchy sentences or juxtapositions to add interest and break up arguments that, while essential, might otherwise seem monotonous. Consider the follow passages:

-“Being married would mean little if the
government were free to refuse all recognition to a couple’s marriage once the vows are made and the license is signed. When a couple knits their lives together through marriage…they vow to be wed until death—not states lines—do us part.” (Obergefell)

-“The real question is whether the majority may use the power of the State to enforce [moral views] on the whole society. It could not do so through the criminal law in Lawrence, and it cannot do so through the marriage law here.” (Bourke)

-“Kentucky has no legitimate interest in excluding same-sex couples from the institution of marriage simply to allow time to pass. Inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the law. Not for one day longer.” (Bourke)

-“This Court has the province and the duty to act when laws deny rights protected under the Fourteenth Amendment. When a minority is asserting core constitutional rights, it is no answer to say that the majority preferred that the minority not have those rights.” (DeBoer)

-“Marriage is a commitment like no other in society. It announces to the world a union that society understands. It grounds couples. It is a vow, recognized by the State, to stay together when times are hard….Marriage brings stability to families. It tells children that they have, and will always have, two parents. For children of same-sex parents, allowing their parents to marry dispels the notion that their families are inferior, second-tier. Marriage brings dignity to adults and children alike.” (DeBoer)

I could write much more about these briefs, but next week I’ll switch sides and be writing about Respondents’ briefs in the consolidated case.  

Friday, May 1, 2015

Thin Mints, Anyone?

Justice Roberts loves interesting analogies. So naturally, his majority opinion in Williams-Yulee v. Florida Bar, issued this week, contains another funny one. In holding that states may prohibit judicial candidates from personally soliciting campaign funds, Roberts notes:

The identity of the solicitor matters, as anyone who has encountered a Girl Scout selling cookies outside a grocery story can attest. When the judicial candidate himself asks for money, the stakes are higher for all involved.

Roberts is right. No one can resist those cute Girl Scouts and their yummy cookies!

Happy Friday!