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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.”


This Day in Liberal Judicial Activism—December 19


2008—Continuing his sabotaging of the California marriage laws that he is obligated to defend vigorously, California attorney general Jerry Brown files a brief attacking Proposition 8, the recently adopted ballot measure that amended California’s constitution to ban same-sex marriage. Brown offers the crackpot theory—beyond anything the opponents of Proposition 8 have argued and beyond the scope of the briefing that the supreme court invited—that the constitutional amendment effected by Proposition 8 somehow itself violates the state constitution.

Brown’s wackiness is too much even for some liberal law professors in California: one says that Brown’s argument “turns constitutional law on its head,” and another calls his position “extraordinary.”

Law-School Enrollment Continues to Decline


From Karen Sloan’s National Law Journal article:

The number of entering law students nationwide dropped below 40,000 this fall for the first time in close to four decades.

According to figures released by the American Bar Association, law schools enrolled 39,675 new students this fall—an 11 percent decrease from the 44,481 students who enrolled last fall. The last time law schools saw such low 1L enrollment was 1975, when there were 163 ABA-accredited law schools. There are 202 such schools today.

Even more ominous for law schools administrators, this fall’s new enrollment represents a 24 percent decline from the 52,488 new students who matriculated in 2010—the all-time high.

Mark Begich: Staunch Supporter of Obama’s Court-Packing


Today, the Judicial Crisis Network released this ad, which will be running on TV stations in Alaska. Like certain other senators, when Senator Begich is in Washington, he votes for radical judicial appointees who will undermine the Second Amendment, energy independence, and traditional social values. But when Senator Begich goes home to Alaska, he turns around and claims to support the very rights and values that these radical judges will attack. We recently released two ads pointing out the same sort of inconsistencies in the voting of Senators Mark Pryor (D. Ark) and Mary Landrieu (D., La.). Just after that, Senator Pryor voted—for the very first time—against an Obama judicial appointee. Hopefully this new ad will help Senator Begich see the light.


This Day in Liberal Judicial Activism—December 18


1997Best is worst—Best v. Taylor Machine Works, that is. In this case, the Illinois supreme court, by a vote of 5 to 1, rules unconstitutional Illinois’s 1995 tort-reform act. Among its rulings, the court holds that a $500,000 cap on non-economic damages in personal-injury cases—a cap that applies generally to all plaintiffs in such cases—violates the state constitutional ban on “special” (as opposed to general) legislation. In twisted confusion over which branch has the authority to make law, it also rules that the cap violates separation of powers—because it “undercuts the power, and obligation, of the judiciary to reduce excessive verdicts.” Under the “special” legislation pretense, the court strikes down, too, the act’s abolition of the common-law doctrine of joint and several liability. And so on, and so on, for other provisions of the act.

Faulting the majority for “hoping to persuade the reader by prolixity,” dissenting justice Miller succinctly sums up the defects in the majority’s approach:

“Today’s decision represents a substantial departure from our precedent on the respective roles of the legislative and judicial branches in shaping the law of this state. Stripped to its essence, the majority’s mode of analysis simply constitutes an attempt to overrule, by judicial fiat, the considered judgment of the legislature.”

On Ruling on Utah Bigamy Law


Now that I’ve vented about how poorly written the opinion in Brown v. Buhman is, I’ll offer some comments about its reasoning (pp. 52-62) that the cohabitation prong of Utah’s bigamy statute has been enforced in a discriminatory manner against “religious cohabitation.”

Some brief background: Utah’s bigamy statute states:

A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person [1] purports to marry another person or [2] cohabits with another person. [Bracketed numbers added.]

The plaintiffs in Brown v. Buhman are Cody Brown and the four women he lives with—the “Sister Wives” of reality-show fame. Cody Brown has a recorded marriage license with only one of the four women. As I understand it, he entered into non-state-sanctioned “religious” marriages with the other three women. The plaintiffs sued to prevent Utah’s bigamy statute from being applied against them.

In last Friday’s opinion, federal district judge Clark Waddoups ruled that the cohabitation prong of the bigamy statute violates numerous constitutional guarantees, and he salvaged the “purports to marry” prong from supposed constitutional problems by narrowly construing it (contrary to the Utah supreme court’s own reading) to apply only to an effort to obtain a legally recognized marriage. In the celebratory words of plaintiffs’ counsel (and George Washington University law professor) Jonathan Turley, “To put it simply, polygamy is now lawful in Utah.” (The “now” that Turley refers to may well be only the narrow window between the ruling and the entry of a stay pending appeal.)

In my judgment, the most substantial of the grounds that Judge Waddoups offers against the cohabitation prong of the bigamy statute is that it has been enforced in a discriminatory manner against those engaged in “religious cohabitation”—those, that is, like plaintiffs, for whom polygamy is a religious practice. But I have two problems with Waddoups’ analysis.

First, I’m not convinced that Waddoups meaningfully demonstrates that the cohabitation prong has been discriminatorily enforced against religious cohabitation. Waddoups cites a statement indicating that Utah “does not prosecute those engaged in religiously motivated polygamy … unless the person has entered a religious union with a girl under eighteen years old.” Utah, I presume, would exercise the same prosecutorial discretion with respect to a married person who cohabits with someone who is not his spouse—that is, it would prosecute only when the married person is cohabiting with someone under the age of eighteen. (If Waddoups addresses or disputes this point, I missed it.) Such instances may well be much rarer in Utah than religious unions between a married man and a girl under eighteen—and they may also be much less likely to come to light than plural relationships. Thus, I don’t see how the apparent fact that the cohabitation prong “in its application primarily applies to those involved in religious cohabitation” (p. 59) supports, much less compels, an inference of discrimination against religious cohabitation.

Second, even if this ground were sound, it seems to me that the appropriate remedy would be to bar discriminatory enforcement against the plaintiffs, not to invalidate the cohabitation prong. (Some or all of the other grounds, if sound, might well support invalidation of the cohabitation prong; I’m skeptical that any of them are sound.)  

Amicus Curiae Brief in Chamber of Commerce v. EPA


Yesterday, my organization, the Judicial Crisis Network, filed an amicus brief in the Supreme Court on behalf of several well-respected administrative law professors in support of a (hopefully) uncontroversial notion: An administrative agency can’t simply make up its own rules as it goes along. In this case, Chamber of Commerce et al. v. Environmental Protection Agency, the EPA’s interpretation of the Clean Air Act ignored numerous well-established canons of statutory interpretation that ensure that an executive agency’s power remains limited by Congress’s grant of authority. The effect of the EPA’s interpretive strategy, we argue, was for the purpose of obtaining vastly broader authority than Congress could have ever intended to confer, allowing the EPA to essentially rewrite the Clean Air Act at will.

Read the whole brief here.

Re: Federal Court Narrows Utah Bigamy Law


A brief follow-up to Jonathan’s post: Having tried to wade through the 91-page opinion in Brown v. Buhman, I haven’t yet formed a judgment on whether the federal district judge reached the right result. I will say, though, that the opinion is among the most poorly written opinions I have ever run across.

Plaintiffs’ lawyer (and law professor) Jonathan Turley maintains, “I don’t know how anyone could read this opinion and not be persuaded by [the judge’s] logic.” But I don’t know how anyone could read the opinion and not be exasperated by its poor craftsmanship, which renders its underlying logic (and the factual bases for its conclusions) unnecessarily difficult to discern.

Another Victory Against HHS Mandate “Accommodation”


In a carefully reasoned opinion issued today, federal district judge Brian M. Cogan of the Eastern District of New York ruled that various Catholic nonprofit institutions that were the supposed beneficiaries of the Obama administration’s phony accommodation on the HHS contraception mandate are entitled to permanent injunctive relief against enforcement of the HHS mandate. (The case is styled Roman Catholic Archdiocese of New York v. Sebelius.)

This is the second merits ruling holding that the accommodation doesn’t satisfy the federal Religious Freedom Restoration Act. No court, so far as I’m aware, has ruled the other way.

As I noted a few weeks ago in discussing the first such ruling, the initial wave of merits rulings on the HHS mandate came in cases brought by owners of closely held, for-profit companies—the class of plaintiffs that the Obama administration thought undeserving of any religious-liberty protections from the mandate. These new losses in cases involving religious nonprofits and the accommodation rule signal that more legal problems for the HHS mandate—and thus for Obamacare generally—may be arriving.

The plaintiffs in this case are two Catholic archdioceses (New York and Rockville Centre) and several other Catholic institutions: Cardinal Spellman High School, Monsignor Farrell High School, Catholic Health Care System and its affiliates (evidently known as ArchCare), and Catholic Health Services of Long Island. Because the archdioceses are entirely exempt from the mandate, Judge Cogan denied those entities injunctive relief. But he granted permanent injunctive relief to the other plaintiffs.

Addendum: A reader reminds me that another nonprofit religious institution, Geneva College of Beaver Falls, Pennsylvania, obtained preliminary injunctive relief against the HHS mandate back in June. (That was before the accommodation rule was finalized, but the judge took into account the proposed rule.) So that makes nonprofit plaintiffs subject to the accommodation three for three on their challenges to the HHS mandate.

On the Constitutionality of Ultrasound Requirements


On Public Discourse, law professor Michael Stokes Paulsen has an excellent essay explaining why state laws requiring that a pregnant woman have an ultrasound of her unborn child before having an abortion are clearly permissible under the Roe/Casey regime. (Paulsen calls the recent Oklahoma supreme court decision to the contrary “simply incompetent.”)

Paulsen’s broader reflections on the value of ultrasounds in informing our “moral intuitions” are also worth your while.  

Federal Court Narrows Utah Bigamy Law


Yesterday, in Brown v. Buhmana federal district court in Utah held a portion of that state’s law prohibiting bigamy to be unconstitutional. While the court concluded the state could prohibit an individual from obtaining two marriage licenses or entering into two lawful marriages, it held that the state could not criminalize cohabitation or holding oneself out as married to more than one other person.  This ruling conflicts with the Utah Supreme Court’s own interpretation of the statute, so this case would make a good cert vehicle unless this decision is overturned by the U.S. Court of Appeals for the Tenth Circuit.  Eugene Volokh, Orin Kerr, and David Kopel have more.

This Day in Liberal Judicial Activism—December 14


2005—In the mendacious screed that it issues against the confirmation of Supreme Court nominee Samuel Alito, NARAL Pro-Choice America stumbles upon some nuggets of truth: The “undue burden” standard set forth in the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey “is a malleable, ill-defined standard.” Far from ratifying Roe, that ruling in fact “explicitly overruled portions of two earlier post-Roe opinions” that had struck down abortion regulations. The Court’s 2000 ruling in Stenberg v. Carhart (on partial-birth abortion) “plainly illustrates the subjectivity inherent in applying the undue burden standard.”

Thanks, NARAL, for helping to make the case that Roe has been eroded, that the “undue burden” standard is not workable, and that stare decisis considerations in favor of maintaining Roe and Casey are very weak.

The Senate “Debate” on the Pillard Nomination


Glutton for punishment that I am, I’ve reviewed the Senate “debate” that took place on Wednesday night on the controversial nomination of Cornelia Pillard to the D.C. Circuit. (For anyone similarly inclined, see discussion scattered across S8608-S8667 of the Congressional Record.) Some observations:

1. Senate majority leader Harry Reid opened the discussion with the brazenly false assertions that “No one is saying a single word contrary to her [Pillard] being the quality candidate that we have said she is” and that “There are no objections to her qualifications.” I’d be inclined to say that lying is second nature for Reid, except that it seems to have become first nature.

2. Senate Republican leader Mitch McConnell and Senator Chuck Grassley (ranking member of the Senate Judiciary Committee) gave extensive statements detailing many of their objections. Other Republican senators, such as Marco Rubio, also weighed in.

3. The only Democrat who attempted to offer any response to Republican objections was Pat Leahy, the Senate Judiciary Committee chairman. But Leahy’s response was feeble and deceptive.

Leahy charged that “On the issue of abortion, Republicans have cherry picked quotes and taken them out of context to try to paint her [Pillard] as someone she is not.”

The reader might recall (see This Day for July 14, 2009) that Leahy, at the outset of Sonia Sotomayor’s confirmation hearing, made the same charge in trying to defend Sotomayor’s notorious “wise Latina” comment—and then proceeded to misquote Sotomayor’s line to eliminate the very elements of the comment that rendered it controversial. Likewise for Pillard, it’s Leahy who cherry-picks a single quote from Pillard as though that quote could dispel Pillard’s manifest extremism on abortion.

Leahy even complained about a “double standard” on abortion and cites Senate confirmation of three Republican judicial nominees who had expressed views that were anti-Roe or anti-abortion. But Leahy didn’t disclose that he and other Democrats overwhelmingly opposed two of those nominees. They filibustered and otherwise obstructed William H. Pryor Jr.’s Eleventh Circuit nomination for more than two years and voted against his ultimate confirmation. (Pryor was confirmed by a 53-45 vote, with only two Democrats supporting him.) And more than 40 of them (Leahy of course included) voted against the district-court nomination of Leon Holmes. So it’s Leahy who has the double standard of opposing nominees on the basis of their views on abortion while maintaining that it’s illegitimate for Republicans to do so.

On Pillard’s extremism against religious liberty, Leahy also falsely claimed that Pillard was merely offering a “prediction” on how the Hosanna-Tabor case would turn out. In fact, she condemned the church’s position in that case—a position unanimously embraced by the Supreme Court—as “a substantial threat to the American rule of law.”

4. In sum, Democrats showed themselves incapable of mustering any remotely plausible defense against Republican objections to Pillard.

This Day in Liberal Judicial Activism—December 13


1971—The initial Supreme Court oral argument in Roe v. Wade takes place. The case ends up being carried over to the next term and re-argued in October 1972. In the meantime, the Court issues its ruling in Eisenstadt v. Baird, which extends a right to contraception to unmarried persons. (See This Day for March 22, 1972.) Justice Brennan smuggles into this passage in his majority opinion in Eisenstadt a couple extraneous words: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In his January 1973 majority opinion in Roe, Justice Blackmun quotes this passage immediately before declaring that “[t]hat right [of privacy] necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

T. W. Shannon Panders to Lawyers


As Ammon has mentioned before, the state of Oklahoma is in the midst of a debate over whether to abandon the Missouri Plan method for selecting its judges. The Oklahoma Supreme Court has been on a tear recently, and calls for selection reform intensified in June when the court struck down an omnibus tort-reform bill. Conservatives in the state seem to be coalescing around the idea that the Missouri Plan should be abandoned, but it is less clear that Republican politicians in the state have the desire or the will to take very serious action.

Regardless of what Oklahoma’s political class thinks, it is clear that Oklahomans support reform. In August, the Federalist Society commissioned a poll on the issue that reveals overwhelming support for a constitutional amendment that would give Oklahomans the right to directly elect their judges:

The survey of 500 registered Oklahoma voters, conducted by North Star Opinion Research, shows that respondents by a 3-to-1 margin preferred having the appellate judges and justices elected. The poll, with an error rate of 4.4 percent, showed that 74 percent of those taking part in the poll preferred having the judges elected and 22 percent favored the commission.

The poll showed 69 percent of those surveyed would support an amendment to the state constitution that would abandon the existing commission and instead allow voters to elect all appellate judges and justices. It showed 25 percent opposed it.

It also showed that 76 percent of those responding favored term limits for appellate judges and justices while 22 percent opposed them.

Such proposals drive the far left bonkers, and not surprisingly, the Soros-funded group Justice at Stake sprung into action almost immediately to caution Oklahoma’s leaders against taking that step.

Sadly, it seems that Oklahoma’s speaker of the house, T. W. Shannon, has decided to carry water for those Soros groups and their allies in both the progressive community and the organized bar. According to the Tulsa World, Shannon opposes the direct election of judges and thinks that “We need to be thoughtful about [judicial selection]. . . . We certainly need not to be cavalier about it.” Apparently it is “cavalier” to suggest that Oklahoma’s supreme court judges fall under the same system as Oklahoma’s trial court judges, and the supreme court justices of 22 other states.

To his credit, Shannon seems to recognize at least the symptoms of the problem, noting that “the trial bar association has had a stranglehold on this state for 100 years.” But while he added that “it’s time we broke that,” he seems to reject the only real long-term solution: elimination of the Missouri Plan commission that allows unaccountable special interests to capture the judicial branch. If he thinks that term limits or a mandatory retirement alone are enough, he’s got a very limited view of history and the way unaccountable commissions are captured.

My hunch is that the speaker simply doesn’t know what he is talking about. Perhaps he hasn’t been briefed on the empirical evidence relating to judicial elections, or perhaps he has been briefed but prefers an approach that allows him to be all things to all people. Whatever the case, if he has a strategy for solving the root of the problem, it isn’t apparent and it probably isn’t something conservatives ought to get too excited about. I hope I’m wrong. 

Senator Landrieu Maintains Perfect Pro-Obama Judge Record


While you were (hopefully) sleeping last night, the Senate voted 51–44 to confirm the nomination of Cornelia Pillard, one of President Obama’s most controversial judicial nominees. Red-state Democrats had to make a choice at the vote shortly before 1 a.m.: Would they represent their constituents at home, or continue to vote in lockstep with the president under cover of night?

Senator Mark Pryor voted against confirmation, his very first vote against any of Obama’s nominees. He was already on the defensive at home, following JCN’s ad attacking his votes on judges, and is apparently now hoping that his constituents will overlook all of his other votes for Obama nominees. So we can count that a success.

Senator Mary Landrieu, on the other hand, is still working for the Obama administration rather than the folks back home, now voting to confirm Pillard, a nominee with radical views on abortion and virtually no understanding of the Constitution’s basic protections for religious liberty. That doesn’t sound like mainstream Louisiana values to me.

Democrat senators should take note: Their voters  will want to know where their allegiances truly lie. Are they with the people, or with President Obama?

On Confirmation of D.C. Circuit Nominee Pillard


Some things are most fittingly done in the dark of night. Not long after midnight, the Senate, by a 51-44 vote, confirmed President Obama’s nomination of hard-left law professor Cornelia Pillard to the D.C. Circuit. The confirmation, which was foreordained by Senate Democrats’ abolition of the filibuster, is bad news for the D.C. Circuit and for the country. But allow me to discern a silver lining or two.

For starters, three Senate Democrats—Pryor (Arkansas), Manchin (West Virginia), and Donnelly (Indiana)—voted against the Pillard nomination, and not a single Republican voted for it. (Four Republicans evidently weren’t present to vote, or the total against presumably would have been 48.)

What this vote means is that Republicans ought to continue to use Pillard and her terrible record (pregnancy as “conscription into maternity,” extremism against religious liberty, and much, much more) in making the broader case against what Obama is doing to the courts and to the country. The fact that three reputedly moderate Democrats voted against the Pillard nomination disables Democrats from effectively defending Pillard’s extremism.

Senator Pryor, who is running very scared, also can’t be permitted to hide behind his vote against Pillard. After all, he supported the filibuster abolition that made her confirmation possible—and that was designed to do exactly that. [11:30 a.m.: Oops. The preceding passage, now struck through, is mistaken: Pryor voted against the filibuster abolition. My apologies for relying on my memory.]

So, per my point 4 here, the Pillard record and vote give Republicans more ammunition to help turn 2014 into another 1994.

Any ambitions that Pillard might have had to use the D.C. Circuit as a stepping stone to the Supreme Court have also been dealt a severe blow.

Vote Tonight on Pillard Nomination


Word is that Senate majority leader Harry Reid is pushing for a vote this evening on radical D.C. Circuit nominee Cornelia Pillard. My narrative inventory of posts on the Pillard nomination is here.

The vote would come 190 days after Pillard’s nomination. For context, consider that Senate Democrats obstructed John Roberts’s D.C. Circuit nomination for 729 days, Brett Kavanaugh’s for 1,036 days, and Miguel Estrada’s for 848 days before he withdrew. More data here.

Baseless Ethics Accusations Dismissed


Last month, liberal attack dogs Common Cause and Alliance for Justice convinced Representative Slaughter to join them in a baseless attack on Justice Thomas’s and Seventh Circuit Judge Diane Sykes’ ethics. The effort was a blatant hack job, so frivolous that it was recently rejected by the chief judge of the Seventh Circuit as just that. Chief Judge Diane Wood (a short-lister for each of President Obama’s Supreme Court nominations), dismissed the complaint as either “lack[ing] any factual foundation or . . . conclusively refuted by objective evidence.”
As Chief Judge Wood’s two-page dismissal indicates, the allegations were easily refuted. Representative Slaughter’s press release cited a provision in the federal judges’ code of conduct that forbids judges serving as “a speaker, a guest of honor, or featured on the program” of a fundraising event. But Justice Thomas and Judge Sykes could not possibly violate this provision by speaking at the Federalist Society dinner because it is not a fundraising event. The event is not designed to raise money, has never been advertised as a fundraiser, and in fact costs more to put on than it brings in in ticket prices.  
These baseless accusations are all the more absurd when viewed in contrast to the American Constitution Society, a liberal group that aspires to replicate the Federalist Society’s success but from the opposite philosophical perspective. That organization also regularly has Supreme Court Justices speak at its conferences. Last year retired Justice John Paul Stevens spoke. The previous year it was (active) Justice Ruth Bader Ginsburg. The speaker list includes a host of other federal judges. And their sponsor list includes corporations and law firms, many of which are the same ones who have sponsored the Federalist Society’s conference. If speaking at an event with corporate or law-firm sponsors actually did violate ethical rules, it would implicate judges across the spectrum, not only Justice Thomas and Judge Sykes.
This crude personal attack is disappointing, both for its partisan nature and its reckless disregard of the absence of any factual basis for its harmful allegations against two federal judges. Unfortunately, at least one respectable media outlet parroted these accusations, lending them credibility. I trust they will put forth equal effort in rehabilitating the maligned judges.


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