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A Point of Principle


Perhaps it’s one of the perils of Twitter (you can follow me at @EdWhelanEPPC), but I’m surprised how often I encounter folks who seem not to understand the role of a principle in argumentation.

To illustrate the point by a common example: A reader who objects to my defense of marriage asserts that marriage should be available to any two consenting adults who love each other. I respond by pointing out that the principle that the reader is (explicitly or implicitly) invoking would extend to adult incestuous relationships. The reader replies by taking offense that I’m supposedly “comparing” same-sex relationships to incest.

There are various potentially intelligent paths that the reader might instead explore for his reply. He might try to maintain his principle by alleging that genuine consent isn’t possible in incestuous relationships or, alternatively, by defending application of the principle to adult incestuous relationships. Or he might modify his principle: he might, for example, contend that incest presents special harms and posit that his principle applies except where those special harms are present. But what isn’t intelligent is to complain that I’m “comparing” same-sex relationships to incest.

(To be clear, I of course acknowledge that if a principle applies to two distinct phenomena, that means that those phenomena have the common feature of being covered by the principle—and thus are in that very limited sense “like” each other. But that’s plainly not what the objecting reader is taking, or feigning, offense at.)

This Day in Liberal Judicial Activism—January 1


2014—Happy New Year! Welcome to another year of This Day in Liberal Judicial Activism.

I assure longtime readers that you’ll find plenty of new content this year. Plus, the permanent collection should serve as a useful reminder of how dominant liberal judicial activism is in our legal culture.

Let’s hope against hope that this New Year won’t provide additional material for further This Day posts.


Notre Dame’s Mandate


Earlier today a panel of the Seventh Circuit (composed of Judges Posner, Flaum, and Hamilton) denied Notre Dame’s emergency motion for a stay pending its appeal of District Judge Simon’s ruling, of December 20. Judge Simon ruled that Notre Dame was not likely to succeed on the merits of its case against the HHS abortion/contraception mandate. He therefore denied the University’s motion for a preliminary injunction. The Seventh Circuit panel set up an expedited briefing and argument schedule, so that a full consideration of Notre Dame’s appeal is likely due before the end of February.

In the meantime: Starting tomorrow, with the beginning of Notre Dame’s self-insured health-care plan year, the University’s Third-Party Administrator will begin offering all eligible female employees and dependents free “contraceptives,” including such potentially abortifacient drugs as IUDs, Plan B and ella. That is, unless the University refuses to “certify” its religious conscientious objection to the HHS mandate, a move that Notre Dame (along with many other Catholic institutions) has said is morally impossible in light of its Catholic beliefs. If Notre Dame so refuses, then the mandate’s obligation to pay for very-early abortions remains with the University itself (because, as far as I can tell, the TPA has no legal authority to undertake the task without Notre Dame’s “certification”). But Notre Dame cannot in conscience do that, for doing so would involve paying for contraception and abortion, and thus would entail greater moral complicity in those evils than if the University shifted that burden to Meritain (its TPA). In that case, the Obama administration will face the prospect of forcing Notre Dame to pay onerous fines for remaining true to its Catholic faith.

This Day in Liberal Judicial Activism—December 31


2009—Judge Vaughn Walker, the chief judge of the Northern District of California, issues a notice concerning a proposed revision of the local rule barring public broadcasting of judicial proceedings and calls for public comments to be submitted within five business days. Why the rush? Walker is presiding over the challenge to California’s Proposition 8, the voter initiative that restored the state’s traditional definition of marriage (in reaction against a lawless state supreme court ruling). His New Year’s Eve surprise is a critical step in his effort to turn the case into a high-profile, culture-transforming, history-making, Scopes-style show trial of Proposition 8’s supporters. Broadcasting the upcoming trial would generate much greater publicity for ringmaster Walker’s circus and would also surely heighten the prospect that witnesses and attorneys supporting Proposition 8 would face harassment, intimidation and abuse.

Two weeks later, the Supreme Court blocks Walker’s kangaroo-court procedures. The per curiam majority opinion issues a stinging rebuke of Walker’s shenanigans:

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

2009—By a vote of 4 to 3, the Montana supreme court rules (in Baxter v. Montana) that a physician who assists a patient in committing suicide cannot be prosecuted for the crime of aiding a person to commit suicide because the patient’s consent to the physician’s assistance provides a complete defense. The majority invokes a general statute that establishes consent as a defense to criminal charges and holds that the exception under that statute for conduct against public policy doesn’t apply. But, as the dissent argues, Montana law has expressly prohibited assisting suicide for over a century, so assisted suicide is plainly against public policy and the defense of consent is therefore not available.

This Day in Liberal Judicial Activism—December 30


2004—In United States v. Bad Marriage, a divided Ninth Circuit panel rejects the 41-month prison sentence received by the aptly named Mr. Bad Marriage. Released from tribal jail so that he could attend an Alcoholics Anonymous meeting, Bad Marriage instead attacked his girlfriend. His guilty plea to a charge of assault resulting in bodily injury came on top of 35 prior state-court convictions and some 60 convictions in tribal court. Applying the Sentencing Guidelines’ rules for upward departures, the sentencing judge departed from the usual sentencing range based on his judgment that Bad Marriage was likely to commit other crimes.

On review, the majority opinion by Judge Warren Ferguson somehow sees fit to thunder that the case is “a powerful indictment of the criminal justice system” and that the problems of alcohol abuse and crime on Indian reservations “cry out for treatment, not simply more prison time.” Never mind, as dissenting judge Consuelo Callahan points out, that Bad Marriage was released from jail to get treatment when he instead assaulted his girlfriend. In the end, the panel’s spurious rejection of the upward departure causes Bad Marriage to be subjected to more prison time: Resentencing Bad Marriage after the Supreme Court’s January 2005 ruling (in United States v. Booker) that the Sentencing Guidelines are advisory, not mandatory, the district judge imposes, and a different Ninth Circuit panel affirms, a 49-month sentence.

2008—Poor Stephen Reinhardt. The Ninth Circuit arch-activist who has made a career of defying the Supreme Court—“They can’t catch them all,” he boasts of his wayward rulings—purports to take offense that a dissent from the denial of rehearing en banc in Belmontes v. Ayers (see This Day for June 13, 2008) implies that his rulings in that case have “flouted the will of the Supreme Court.” Some eleven months later, in a unanimous per curiam opinion (in Wong v. Belmontes), the Supreme Court summarily reverses Reinhardt—the third time in this same case that the Court has reversed or vacated one of his rulings. Further, the Court states that it finds his reasoning incomprehensible and fanciful, and it notes his manipulative recharacterization of the evidence. (See This Day for November 16, 2009.)


This Day in Liberal Judicial Activism—December 28


2005—“Allah” yes, “Christ” no. Having already enjoined the Speaker of Indiana’s House of Representatives from permitting “sectarian” prayers to be offered as part of that body’s official proceedings, federal district judge David Hamilton draws a curious line between “sectarian” and “non-sectarian” prayers. Whereas prayers that “use Christ’s name or title” are sectarian, Hamilton says that it’s presumptively not sectarian for a Muslim imam to offer a prayer to “Allah.”

In March 2009, Hamilton’s politically correct favoritism of Islam over Christianity in the public square helps make him President Obama’s first nominee to a federal appellate slot (on the Seventh Circuit).

This Day in Liberal Judicial Activism—December 25


1987—As a result of a Seventh Circuit ruling (in American Jewish Congress v. City of Chicago), the city of Chicago no longer displays a nativity scene in the lobby of the Chicago City-County building. In dissent, Judge Easterbrook laments the multi-factored balancing test established in Lynch v. Donnelly, where the Supreme Court permitted a nativity scene as part of a city’s Christmas display that also included “a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that reads ‘SEASONS GREETINGS’. As Easterbrook puts it:

“It is discomfiting to think that our fundamental charter of government distinguishes between painted and white figures—a subject the parties have debated—and governs the interaction of elements of a display, thus requiring scrutiny more commonly associated with interior decorators than with the judiciary. When everything matters, when nothing is dispositive, when we must juggle incommensurable factors, a judge can do little but announce his gestalt.”

1989—Thanks to the Supreme Court’s jumbled ruling months earlier in Allegheny County v. Greater Pittsburgh ACLU, the city of Pittsburgh can display a Hanukkah menorah next to a Christmas tree but can’t display a nativity scene. The Court’s own summary of its lineup signals the clarity that it provides:

“BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O’CONNOR, JJ., joined, an opinion with respect to Parts I and II, in which STEVENS and O’CONNOR, JJ., joined, an opinion with respect to Part III-B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O’CONNOR, J., joined, and an opinion with respect to Part VI. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JJ., joined.. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., and WHITE and SCALIA, JJ., joined.” Got that?

1998—For the fourth Christmas in a row, Jersey City is barred by a district-court order from displaying on City Hall grounds a menorah and a nativity scene, this time as part of a proposed display that would also include a Christmas tree, large plastic figures of Santa Claus and Frosty the Snowman, a red sled, Kwanzaa symbols on the tree, and signs stating that the display was one of a series of displays put up by the city throughout the year to celebrate its residents’ cultural and ethnic diversity. Less than two months later, a divided panel of the Third Circuit, in an opinion by Judge Samuel Alito, will rule that the display is constitutionally permissible.

More Victories Against HHS Mandate “Accommodation”


Here’s another ruling from an Oklahoma federal court (different judge) in favor of four religious universities that challenged the HHS mandate “accommodation.” And here’s another preliminary injunction entered in favor of Geneva College.

Again, because there is a flurry of rulings in advance of the January 1 deadline on which the “accommodation” applies to religious nonprofits, my tally may not be comprehensive. But without double-counting the Geneva College rulings, I’m aware of five rulings in favor of religious nonprofits and of two rulings against.

Re: Judicial Recklessness in Utah


Some further thoughts on Judge Robert J. Shelby’s astounding refusal to stay his ruling against Utah’s marriage laws pending appeal:

1. In the Prop 8 case, federal district judge Vaughn Walker refused to stay his ruling against Prop 8 pending appeal. Recognizing that Walker’s effort to alter the status quo was so manifestly beyond the bounds of reasonable judgment, the Ninth Circuit panel (with two liberal Clinton appointees) stated in one simple sentence that it was granting the motion. The Tenth Circuit should take similar action to thwart Judge Shelby’s recklessness.

2. Unlike Shelby, Walker at least had the sense to stay his judgment until the Ninth Circuit could decide whether a stay pending appeal should be issued. (See last paragraph of his order.) Shelby, in other words, has already been more reckless than Walker by inviting same-sex “marriages” to occur before the Tenth Circuit could decide whether a stay pending appeal is warranted.

3. To amplify on my earlier point that the purported marriages since Friday will be void ab initio if Shelby’s merits ruling is reversed on appeal: It’s important to have in mind that the situation in Utah is very different from the situation that prevailed in California between the time of the state supreme court ruling striking down California’s definition of marriage in May 2008 and the adoption of Prop 8 in November 2008. At all relevant times, Utah law has stated that marriage is the union of one man and one woman. By contrast, the state law in California, at least as construed by the state supreme court, allowed same-sex marriages between May 2008 and November 2008, and Prop 8 was plausibly construed not to invalidate those marriages.

Judicial Recklessness in Utah


One point on which all sober legal minds ought to be able to agree, irrespective of their different positions on same-sex “marriage”, is that a single federal district court decision ought not be allowed to override the marriage laws of a state. Yet that is exactly what federal district judge Robert James Shelby is trying to achieve by his astounding refusal to issue a stay pending appeal of his ruling last Friday that Utah’s definition of traditional marriage violates the federal Constitution.

If federalism principles are to be taken seriously, then Utah’s fundamental interest in its longstanding definition of marriage ought to have dominant weight in any consideration of the factors relevant to granting a stay pending appeal of the federal court’s decision. To be sure, there are interests on the other side. But unless one is to prejudge the outcome of the appeals process, those interests are weak: same-sex couples who have purported to marry in Utah since last Friday have done so under a cloud of uncertainty. If the Tenth Circuit or the Supreme Court reverses Judge Shelby’s merits ruling, their marriages will be void ab initio.

What Judge Shelby (a recent Obama appointee) is plainly trying to do is sow chaos in order to alter the terrain while the appeal of his ruling is pending. That’s a grossly irresponsible course of action, and the Tenth Circuit—or the Supreme Court—should put a quick stop to it.

More to follow.

Georgia Nominees Draw Fire from Left


The Hill reports that Rep. John Lewis (D-Ga) is leading the charge against some of President Obama’s district court nominees in Georgia.  According to Lewis and his allies, the nominees are insufficiently diverse and one defended Georgia’s voter ID law in court.

This Day in Liberal Judicial Activism—December 23


1996—In Coalition for Economic Equity v. Wilson, federal district judge Thelton Henderson issues a preliminary injunction barring California officials “from implementing or enforcing Proposition 209 insofar as said amendment to the Constitution of the State of California purports to prohibit or affect affirmative action programs in public employment, public education or public contracting.”

Adopted by California voters in the November 1996 election, Proposition 209 provides that the state “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Among other things, Henderson rules that the challengers to Proposition 209 “have demonstrated a probability of success on their claim that Proposition 209 violates the Fourteenth Amendment’s equal protection guarantee to full participation in the political life of the community.”

But, as a unanimous Ninth Circuit panel (in an opinion by Judge Diarmuid O’Scannlain) will observe months later in reversing Henderson:

“A denial of equal protection entails, at a minimum, a classification that treats individuals unequally.… Impediments to preferential treatment do not deny equal protection.… That the Constitution permits the rare race-based or gender-based preference hardly implies that the state cannot ban them altogether.”

Obama Makes More Appellate Nominations


On Thursday, President Obama made two new appellate nominations: Judge Julie E. Carnes to the U.S. Court of Appeals for the Eleventh Circuit and Judge Gregg Costa to the U.S. Court of Appeals for the Fifth Circuit.  Judge Carnes has served on the district court bench since 1992 and is a former assistant U.S. attorney.  Judge Costa also served as an assistant U.S. attorney and clerked for Chief Justice William Rehnquist.  He has been a federal district court judge since April 2012.  His district court nomination was reportedly encouraged by Texas Senators John Cornyn and Kay Bailey Hutchison.  Howard Bashman has more here.

In other nomination news, there are rumors that President Obama is considering former acting Solicitor General Neal Katyal for a seat on the U.S. Court of Appeals for the fourth Circuit.

Yet Another Victory Against HHS Mandate “Accommodation”


Ruling from Oklahoma federal court on behalf of religious nonprofits here. Four rulings on accommodation, four victories for challengers. Obamacare is collapsing all around us (but the debris can still cause massive damage).

Update: In a ruling late today, the University of Notre Dame failed to get preliminary injunctive relief. (Will add link when I find it.) The ruling also refers to a ruling yesterday that denied relief to Priests for Life. (There will likely be a flurry of additional rulings in advance of the Jan. 1 implementation date.)

More Bad Marriage News from Utah


Exactly one week after a federal district judge in Utah (a Bush 43 appointee) dramatically narrowed the scope of Utah’s anti-bigamy law, another federal judge in Utah (this time an Obama appointee, Robert James Shelby) has ruled (in Kitchen v. Herbert) that Utah’s definition of traditional marriage violates the federal Constitution.

I’ve barely glanced at the opinion, but I’m struck by Judge Shelby’s assertion in his conclusion that the desire for same-sex marriage “is a testament to the strength of marriage in society, not a sign, that … it is in danger of collapse.” It seems to me instead that the very notion of same-sex “marriage” has been made possible only by the decades-long collapse of marriage. But I suppose that what really explains our different assessments is that we have very different understandings of what marriage is. (Somehow I don’t think that further misorienting marriage away from its central mission of child-rearing is going to help address the long-term social crises that massive numbers of out-of-wedlock births present.)

I probably won’t offer any more commentary on the ruling, as its primary significance is to tee the matter up for the Tenth Circuit’s consideration. Not that I’m optimistic, post-Windsor, on how the appellate process will go.

An Invitation or Two


As you plan your year-end charitable contributions, I encourage you to respond to National Review publisher Jack Fowler’s appeal for support, including to help defend the invaluable Mark Steyn against the libel suit brought by erstwhile Nobel Prize pretender Michael Mann.

And while I’m at it: If you enjoy my posts here on Bench Memos and appreciate the impact that I’m having on the broader debate on constitutional issues and judicial nominations, then I also invite you to support the Ethics and Public Policy Center. It’s my full-time position at EPPC that pays my bills and enables me to carry out my work, both here and elsewhere. That’s true as well for my great team of colleagues at EPPC, including frequent NRO contributors like George Weigel, James Capretta, Yuval Levin, Mary Eberstadt, and Stanley Kurtz.

‘It Goes without Saying’?


Friday the 13th was an unlucky day for the Obama administration. That afternoon Brooklyn federal judge Brian Cogan enjoined enforcement of the HHS “contraception” mandate against a host of Catholic entities in the New York area, including the Archdiocese of New York as well as Cardinal Spellman and Monsignor Farrell High Schools. Judge Cogan’s opinion is generally well-reasoned and reaches the right result. But in it he adopted a passage from an earlier superb and correct opinion by Judge Diane Sykes (Korte v. Sebelius) for the Seventh Circuit, also enjoining enforcement of the HHS mandate.

Here is that passage, as quoted by Judge Cogan after noting that the burden upon the New York Catholic institutions was not that the law allows their employees to receive and use free contraception: “It goes without saying that [plaintiffs] may neither inquire about nor interfere with the private choices of their employees on these subjects.”

But this is surely mistaken. For it is surely at least arguable that the Catholic Church — say, the Archdiocese of New York — may “inquire” of employees whether they affirm and live according to the moral truths which the Church affirms and lives by. Take abortion, for example. Does it “go without question” that a Catholic parish school may not “inquire” of a prospective principal or religion teacher whether he or she affirms that killing one’s unborn baby is simply wrong? Does “it go without saying” that Cardinal Dolan may not “interfere” with the “private choice” of his own pastoral staff by making clear to each of them that they their continued employment as his teachers of doctrine depends upon their setting a proper moral example — and that having an abortion would be inconsistent with that example?

Indeed, abortion is just one of many “private choices” that Judge Cogan’s assertion would evidently reach. Take your pick of additional examples. Here is mine: Is it so obviously unarguable that a Catholic high school could not discharge a male theology teacher who abandoned wife and children to marry his boyfriend?

In truth, I think that in all these cases (and more) “it goes without saying” that these Catholic employers could both “inquire about ” and “interfere” with all these “private choices.” In truth, the Supreme Court made that pretty clear in the Hosanna-Tabor case.

Now, none of this is a criticism of Judge Sykes. Her case involved two for-profit companies, albeit family-run outfits with strong (as it happens) Catholic identities. But for Judge Cogan to mindlessly (I hope) apply it to the Catholic Church is surely mistaken.

This Day in Liberal Judicial Activism—December 20


1999—The so-called Common Benefits Clause of the Vermont constitution—which actually bears the title “Government for the people; they may change it”—declares that “government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.”

In Baker v. State, the Vermont supreme court somehow finds in this declaration a requirement that the benefits and protections of marriage be extended to same-sex couples. So much for the “indubitable, unalienable, and indefeasible right” of the people of the Vermont to reform or alter—or to maintain—their government’s marriage laws “in such manner as shall be, by [them], judged most conducive to the public weal.”

The only dissenter complains that the majority did not go far enough—that it shouldn’t have left the legislature the option of creating an alternative statutory scheme parallel to marriage but should instead have required that marriage licenses be made available to same-sex couples. 

New Mexico Supreme Court Invents Right to “Same-Gender” Marriages


In a unanimous opinion issued today in Griego v. Oliver, the five justices of the New Mexico supreme court have ruled that the New Mexico constitution requires that “same-gender couples” be allowed to marry.

On a quick first read, it appears that the court’s mode of reasoning follows the same adventuresome inventiveness of other state courts that have gone this route. Among other things, the reader will learn that “the members of the LGBT community do not have sufficient political strength to protect themselves from purposeful discrimination” and are “‘relegated to such a position of political powerlessness’” that it is the court’s role to deliver them victory on the fundamental question of marriage.

Re: Don’t Cry for Argentina


Related to my post from last month: On a separate pending certiorari petition filed by Argentina arising from its same defaults on its bond obligations, Solicitor General Donald Verrilli weighed in two weeks ago in favor of Argentina’s cert petition.

In light of the fact that Argentina has made clear that it will defy any adverse judgment that it receives on this matter from American courts, I find the SG’s position remarkable. I recognize that the Obama administration seems intent on degrading American sovereignty, but I’m still very surprised that SG Verrilli would recommend that the Court grant review of a petition by a party who has flaunted its intent to flout the Court.

In the supplemental brief that they filed yesterday in response to the SG, the bondholders properly cite Argentina’s defiance as one of several factors that weigh decisively against the Court’s granting review, and they fault the SG for his remarkable “fail[ure] to note [Argentina’s] brazen position that it will flout any adverse judgment.”


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