On Monday, the United States Supreme Court quietly denied certiorari on cases from three federal courts of appeals (the 4th Circuit, the 7th Circuit, and the 10th Circuit) that found bans on same-sex marriage to be unconstitutional. The Court’s denial leaves those federal decisions standing, thus making same-sex marriage legal in five states: Indiana, Oklahoma, Utah, Virginia, and Wisconsin. The decision is also likely to mean that the other states covered by those federal appellate court districts—Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming—will also allow same-sex marriage. Or at least, they can’t ban it.
Most surprising to many SCOTUS observers was that the Court made no comment about its decision to deny certiorari. Continue reading “Wisconsin to Allow Same-Sex Marriage”
Judge Richard Posner minces no words. In an opinion dated September 4, Judge Posner wrote for a unanimous 7th Circuit panel, affirming the Wisconsin district court’s decision invalidating Wisconsin’s so-called marriage amendment. (I reviewed the district court decision here.) Wisconsin’s case—Wolf v. Walker—was heard with its equivalent from Indiana—Baskin v. Bogan—and both states saw their prohibitions on same-sex marriage crumble.
The court confines its analysis to equal protection, avoiding the Fourteenth Amendment substantive due process argument (marriage as a fundamental right) that both sides pressed. As an equal protection analysis, the court sets up the legal question as one that requires heightened scrutiny because, as the court determined, sexual orientation is an immutable characteristic rather than a choice (and, Judge Posner added, “[w]isely, neither Indiana nor Wisconsin argues otherwise” (*9)).
Because heightened scrutiny applied, the state needed to provide an important state interest for treating same-sex couples differently when it came to marriage, and the discriminatory means chosen (denying same-sex couples the right to marry in Wisconsin and refusing to recognize same-sex marriages performed in states that sanction such unions) must be substantially related to achieving that important state interest. In true Posnerian style, Judge Posner discussed the equal protection analysis in terms of costs and benefits. (See **4-7.) That is, “in a same-sex marriage case the issue is not whether heterosexual marriage is a socially beneficial institution but whether the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes” (*6).
The court found no important state interest to satisfy the heightened scrutiny analysis. As Judge Posner noted, “[T]he only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously” (*7). In fact, the court found none of the arguments proffered by either state as rational, much less serving important state interests. “The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subject to heightened scrutiny . . .” (*8). Because the court found an equal protection violation (whether it used heightened scrutiny or rational basis analysis), the court avoided the due process argument. Continue reading “7th Circuit Affirms District Court Ruling Invalidating Wisconsin’s Marriage Amendment”
On Friday afternoon, June 6, 2014, marriage equality arrived in Wisconsin. Judge Barbara Crabb of the United States District Court, Western District of Wisconsin, held Wisconsin’s “marriage amendment” to be unconstitutional.
Article XIII, section 13 of Wisconsin’s constitution provides that “[o]nly a marriage between one man and one woman shall be valid or recognized as a marriage in this state.” This amendment was passed by Wisconsin voters in November 2006. Since that time, however, a number of states have extended the right to marry to same-sex couples, and other state bans on same-sex marriages have been struck down by federal judges. At the federal level, the United States Supreme Court last summer struck down the Defense of Marriage Act, thus requiring the federal government to recognize state-sanctioned marriages of same-sex couples.
Earlier this year, the ACLU filed Wolf v. Walker in federal court, challenging the marriage amendment. The plaintiffs in Wolf are eight same-sex couples who live in Wisconsin. Some of those couples have been legally married in other states and want Wisconsin to recognize their marriages; others want to marry and would do so in Wisconsin but for the marriage amendment. On Friday, June 6, 2014, they got their wish. Continue reading “Wisconsin Becomes 27th State to Allow Same-Sex Marriage”
Confusion continues over the new Department of Administration rules announced December 1 which require advance permits for many demonstrations held within the Wisconsin State Capitol. Among the more controversial aspects of the policy are its applicability to small groups of protestors and the discretion granted to the State Capitol police to require permit seekers to pay security costs in advance. I have already written about the manner in which this policy goes too far, and how it impermissibly infringes upon the First Amendment rights of protestors.
One response to the criticism of the new DOA policy has been to compare the DOA policy to the rules governing demonstrations at the United States Capitol building. At first reading, it appears that protestors are completely banned from the United States Capitol building under guidelines issued by the United States Capitol Police. Those guidelines state that “demonstration activity is prohibited and will not be permitted inside any Capitol buildings.” You can read the U.S. Capitol Police policy here.
At a recent forum to discuss the new DOA policy, one participant asked, if the U.S. Capitol Police can ban demonstrations altogether within their building, why can’t the Department of Administration impose restrictions in the State Capitol building that are something less than a complete ban? The simple answer to this question is that the U.S. Capitol building is not considered a public forum, while the Wisconsin State Capitol is. Continue reading “Why the Permit Policies in the U.S. Capitol Are Irrelevant”
The ownership rights to live athletic events has been the subject of much legal controversy since the rise of commercialized spectator sports a century and a half ago. In 1885, the Detroit Wolverines baseball club, then a member of the National League, sued John Deppert ,who owned a barn adjacent to Recreation Field, where the team played. Deppert was charging baseball fans a fee to climb on to the roof of his barn, from which the Wolverine games could be watched. A half-century later, the issue shifted to radio broadcasting, and the question became whether or not a radio station could broadcast live accounts of an ongoing game without the permission of the home team.
Today’s version of the question involves streaming images of games across the Internet. Earlier this month, Wisconsin federal district court judge William Conley weighed in on this question. The ruling came in a case involving the Wisconsin Interscholastic Athletic Association and The Appleton Post-Crescent newspaper and the Wisconsin Newspaper Association.
The WIAA sued The Post-Crescent after it streamed live coverage of four high school football playoff games in 2008. Continue reading “Who Owns a Sporting Event in Wisconsin?”
I am not going to go ballistic over Judge Barbara Crabb’s decision that the National Day of Prayer – an event that has gone on for 58 years and mirrors, in many respects, actions of our federal government throughout the history of the Republic – violates the Establishment Clause.
She is, I think, wrong and may have been well served to have given more attention to a principle of legal analysis that has served me over the years: The law can be an ass, but it doesn’t always have to be. Invalidating the National Day of Prayer seems intrinsically wrong and that sense, while not dispositive, needs to be given attention.
But Judge Crabb’s decision rehearses the doctrine and the various arguments for and against the constitutionality of the matter. She did not mail it in. She did not ignore the obvious arguments against her decision, even if I don’t think she handled them in the right way.
It would be hard for me to conclude otherwise. I have argued — here and here — that there is a trail in our Establishment Clause jurisprudence (and various trails, rather than structure, is all we have in this area of the law) that is overly ambitious. It seeks to protect against relatively small religious insult and utterly fails to deliver it because, to be consistent, would paralyze the government.
Continue reading “Judge Crabb’s Ambitious Establishment Clause”
As Dean Kearney observed in an earlier post, I am chairing the Federal Nominating Commission that is reviewing applications for the United States Attorney post in the Eastern District of Wisconsin. Dean Ken Davis of Wisconsin is chairing a counterpart commission that is reviewing applications for a federal judgeship in the Western District. Both sets of applications were due yesterday. The list of U.S. Attorney applicants is here, and the list of judicial applicants is here. Both groups include many individuals with impressive professional credentials. I think the people of Wisconsin should be pleased that so many well-qualified applicants have indicated an interest in these important positions of public service. If members of the public would like to comment on the qualifications of any of the applicants, they may send letters to Adam C. Korbitz, Government Relations Coordinator, State Bar of Wisconsin, 5302 Eastpark Boulevard, P.O. Box 7158, Madison, WI 53707-7158.
Much of the attention following yesterday’s decision in Siefert v. Alexander focuses upon the invalidation of prohibitions against judges or judicial candidates belonging to political parties and endorsing partisan candidates for office. That part of Judge Crabb’s decision seems to me, given the balance between regulatory interests and the protection of speech struck by the United States Supreme Court in Republican Party v. White, to be clearly correct.
And not, in my view, very momentous. Many judges have prejudicial partisan affiliations and, in highly salient elections, it is not hard for the public to discern whether a candidate is a Republican or Democrat. In fact, one could argue that allowing candidates to claim partisan affiliation is a relatively efficient way to provide pertinent information to voters in campaigns where discussion of the issues is difficult and often cramped by legal and customary restrictions. It’s not that we expect judges to rule in whatever way their party wants (although, as Judge Crabb points out, the prior partisan affiliation of federal judges is strongly correlated with voting patterns), but that partisan affiliation may tell us something (admittedly broad and general) about a candidate’s judicial philosophy.
More significant, it seems to me, is that part of the decision striking down the Code of Judicial Conduct’s prohibition against the personal solicitation of funds by judges and judicial candidates. Continue reading “Okay, Judge, You Hit Your Number or Die in This Room*”
As Dean Kearney noted in an earlier post, I am serving as chair of the Federal Nominating Commission for the United States Attorney position in the Eastern District of Wisconsin. The Commission completed its first item of business this past week by approving the questionnaire to be used by applicants. The forms and instructions are available here. (The link also contains the nearly identical questionnaire to be used by applicants for the Western District judicial opening.) Applications are due at noon on March 2.
In reviewing the questionnaire, I am glad that I myself am not an applicant — we are asking applicants to gather and present a large quantity of information about themselves in a short period of time. I hope that well-qualified attorneys will not be deterred by this process. There is, of course, a delicate balance to strike: on the one hand, we do not wish to deter applicants through an unduly onerous process; but, on the other hand, it is critical for the Commission to have adequate information to assess the competence and integrity of all of the candidates for such an important position of public trust. I hope that we have struck the balance appropriately.
The Madison-based Freedom From Religion Foundation has sent a letter of complaint regarding the recognition of Good Friday as a campus holiday by fifteen of the state’s sixteen technical colleges, apparently pursuant to collective bargaining agreements with instructional staff. The FFRF argues that closing on Good Friday (not just calling the off day “Good Friday’) is inconsistent with a 1996 decision of the Western District of Wisconsin invalidating a state law that mandated the closing of public facilities for the purpose of worship.
The prior decision seems distinguishable to me given the statute’s explicit reference to closing for a religious purpose. It’s hard, in light of that, not to see the statute as violating current Establishment Clause doctrines.
These cases tend to turn on some ascription (often fictional) of a religious or secular purpose to the state. FFRF will have to show that the recognition of the Good Friday holiday has a religious purpose or amounts to an endorsement of Christianity. It may well lose because a court will conjure some secular justification for recognition of the holiday, e.g, that the day also known as Good Friday has become a traditional opening to the spring vacation.
Continue reading “The Holiday Formerly Known as Good Friday”
In Duwe v. Alexander, prominent First Amendment attorney James Bopp won a federal district court decision (PDF) striking down SCR 60.06(3)(b), part of the Wisconsin Code of Judicial Ethics. Bopp convinced Judge Shabaz that the Code’s section prohibiting judges from making “pledges, promises, or commitments” interfered with their free speech rights under Republican Party of Minnesota v. White, 536 U.S. 765 (2002).
Bopp is currently pursuing another free speech claim in Siefert v. Alexander, again in the Western District federal court (PDF). Here, Bopp represents a Milwaukee County judge who is challenging three sections of the Code that prohibit judges from belonging to or participating in political parties.
He is also counsel to Justice Michael Gableman in the disciplinary proceedings regarding Gableman’s campaign TV ad. In the reply to the Judicial Commission’s charges (PDF), he affirmatively asserts that SCR 60.06(3)(2), the “misrepresentations” clause, is an unconstitutional impingement on free speech.
In other words, Bopp’s litigation in Wisconsin has successfully taken down one judicial ethics code section, and four more are under challenge.
But Bopp is litigating outside Wisconsin as well, and a recent decision Bopp won in a federal court in Kansas may result in new litigation in Wisconsin. Yesterday, Bopp issued a release hailing Judge Julie A. Robinson’s decision in Yost v. Stout, which struck down the Kansas Judicial Code’s ban on the direct solicitation of campaign donations by judicial candidates. Wisconsin SCR 60.06(4) says that “A judge, candidate for judicial office, or judge-elect shall not personally solicit or accept campaign contributions.” Under the federal district court’s decision in Kansas, it seems clear that 60.06(4) is unconstitutional. Will a Wisconsin judge or candidate soon challenge it as such?
Our graduate and adjunct faculty member Steven Biskupic announced yesterday that he is stepping down from his post as U.S. Attorney for the Eastern District of Wisconsin, effective January 9. Steve made us proud over his six years of distinguished service in this important position, winning convictions in many high-profile public corruption cases. It is customary for U.S. Attorneys to resign after a new President is elected, but this is one instance in which the community may be ill-served by the custom. Best wishes, Steve, in your new endeavors!
Steve’s counterpart in the Western District, Erik Peterson (who is also a Marquette alum), has not yet announced his plans.