Isaac Laquedem

Fox News outclasses the BBC for journalistic ethics? Today, yes

The conviction this week of Ghislaine Maxwell for her complicity in the sexual misconduct of her longtime friend and employer, the late Jeffrey Epstein, spawned a plethora of articles and interviews with legal analysts.  For example, yesterday the BBC interviewed law professor Alan Dershowitz to talk about the verdict.  The Washington Post reports that Professor Dershowitz used his time on the BBC World News "to slam [witness Virginia] Giuffre for supposedly not being a credible witness," and (again in the Post's words) "claimed the case from Giuffre against him and Britain's Prince Andrew *** was somehow weakened after Maxwell's guilty verdict." 

Professor Dershowitz also appeared on Fox News to talk about the case.  Fox News disclosed, as the BBC did not, that Dershowitz had once been Epstein's lawyer (he helped defend Epstein in his 2008 sex-crime trial), and that Dershowitz had also been accused of having had sex with Ms. Giuffre when she was 16.  (Dershowitz has denied that allegation, and in fact claimed this week that Ms. Giuffre herself could be charged with sex crimes.)

It's odd to read about Fox News surpassing the BBC on journalistic ethics, but then it's been a crazy year.

Isaac ghostwrites the opinion that Justice Kennedy should have written in the SSM case

I read the Supreme Court's five opinions in Obergefell v. Hodges, the same-sex marriage case with great interest, but without a lot of appreciation.  Justice Kennedy's opinion for the majority reaches what to me is the right result, but doesn't use much legal reasoning to get there.  His rhetoric is good, but his legal logic is conspicuous mainly by its absence.

Chief Justice Roberts's dissent is more analytical; he says in essence that he's happy for couples in same-sex relationships, but he doesn't see the right to marry someone of the same sex anywhere in the constitution. In his words, "Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for such an extension are not."  The "fundamental right to marry," he says, does not compel a state to change its definition of marriage.  His voice of calm reason slips only on the last page of his dissent, when he says "Celebrate the availability of new benefits.  But do not celebrate the Constitution.  It had nothing to do with it."

The other justices in the minority are less temperate.  Justice Scalia points out that the court is not a paragon of diversity or representation:  "This court consists of only nine men and women," he says, four from New York, eight from one coast or the other, and only one from the midwest.  All of them, he notes, are graduates of Harvard or Yale.  There is not a genuine Westerner ("California," he says with a nod to Justice Kennedy, "does not count."), and not a single Protestant.  He winds up with a footnote saying that the Court has descended from its tradition of legal reasoning "to the aphorisms of a fortune cookie."

The dissents of Justices Thomas and Alito go downhill from there.  Justice Thomas has a good discussion of substantive due process (something of interest only to lawyers), correctly says that the constitution does not have a "dignity clause" - a clause guaranteeing Americans the right to personal dignity -- after which he bizarrely states that the government did not take away the dignity of slaves by allowing them to be enslaved.  (Actual slaves might disagree with him.) 

A bench full of eminent Harvard- and Yale-trained intellects should be able to write five opinions among them and cite some actual law. Justice Kennedy's opinion is heartwarming and inspirational but not very legal. He might more analytically have written something like this:

     1. The Full Faith and Credit provision requires each state to recognize the out-of-state marriages of same-sex couples whose marriages were lawful where contracted, regardless of whether the state itself issues licenses to same-sex couples.

     2. Because marriage is a fundamental right, the court will apply strict scrutiny (not rational relationship) to a state's restrictions on the right to marry that are based on race, religion, and gender.

     3. The individual state restrictions allow George to marry Martha, but do not allow Julie to marry Martha, thus imposing a distinction between George and Julie on whom they are allowed to marry by reason of their gender: George can marry people whom Julie can't, and Julie can marry people whom George can't, simply by reason of the different genders of George and Julie.

     4. The concept of marriage as an institution in which spouses of different genders united for life to raise children was pretty much shot to hell in the 1960s.  Justice Alito points out that 40% of American children are now born to unmarried parents.

     5. The states do, however, have a compelling interest in promoting children to be raised in two-parent households; that is, in households of married couples. (Here cite  the evidence brought up by opponents of SSM about children of two-parent families.)

     6. Therefore the states have a compelling interest in encouraging more people to be married, rather than fewer, for the better welfare of children. (Here cite statistics on same-sex couples bearing and adopting children.) However, the prohibitions on same-sex marriage apply to good parents as well as bad.

     7. Therefore (Justice Kennedy should have written) the states' restriction on same-sex marriage is not narrowly tailored to advance a compelling state interest, and is unconstitutional as being based on gender.

Abdication

You all know the reasons which have impelled me to renounce the throne. But I want you to understand that in making up my mind I did not forget the country or the empire, which, as Prince of Wales and lately as King, I have for twenty-five years tried to serve.

But you must believe me when I tell you that I have found it impossible to carry the heavy burden of responsibility and to discharge my duties as King as I would wish to do without the help and support of the woman I love.

And I want you to know that the decision I have made has been mine and mine alone. This was a thing I had to judge entirely for myself. The other person most nearly concerned has tried up to the last to persuade me to take a different course.

I have made this, the most serious decision of my life, only upon the single thought of what would, in the end, be best for all.

-- Edward Windsor, formerly Edward VIII of Great Britain, December 11, 1936

The bans on same-sex marriage backfire

A few days ago the United States Supreme Court denied certiorari in seven same-sex marriage cases: three cases from Virginia and one case each from Indiana, Ohio, Oklahoma, and Wisconsin.  "Denied certiorari" means that the Supreme Court declined to hear the case; it doesn't mean that the court made any ruling about whether same-sex couples have a constitutional right to marry or whether states can constitutionally restrict marriage to opposite-sex couples.

Last year the Supreme Court decided two SSM cases, one called Windsor (from New York) and one called Hollingsworth (from California).  In Windsor, two women, residents of New York, were legally married in Canada.  At the time New York law did not authorize same-sex marriages, but New York recognized same-sex marriages from states and provinces in which same-sex marriage was legal.  One spouse died and left her estate to the other.  The survivor filed an estate tax return and claimed that what she received from her wife's estate was exempt from federal estate tax because legacies to a spouse are untaxed.  The IRS asserted that under the Defense of Marriage Act, which forbade the federal government to recognize same-sex marriages, the two women were not married for tax purposes and the survivor was not entitled to claim the marital exemption.  The Supreme Court held that a portion of the Defense of Marriage Act was unconstitutional because it intruded on the states' traditional right to define and regulate marriage.

In the Hollingsworth case, proponents of SSM challenged a California ballot measure that prohibited SSM.  A trial court struck down the measure.  The measure's sponsors appealed that decision to a federal court of appeals, where they lost.  They asked the Supreme Court to review the case, the Supreme Court reviewed it, and held that the measure's sponsors did not have standing (the legal right) to appeal the case because they were not affected by whether Proposition 8 (the ballot measure) was enforceable -- the measure prohibited something that the sponsors weren't going to do anyway.

Underlying the Court's opinions in Hollingsworth and Perry is a suggestion that the anti-SSM measures are constitutionally suspect because they reflect the authors' animus toward same-sex couples; that is, the courts should look at them critically because the sponsors acted out of bias and prejudice.

If I am right, then there is a delicious irony in what the efforts of SSM opponents have accomplished.  Had they been content to let their states' marriage statutes stand unaltered in their references to marriage as being between one man and one woman, the federal courts could not have used prejudice as a reason to allow SSM.  But by gilding the lily -- by wanting prohibitions on same-sex marriage to be not only in their states' statutes but in the state constitutions -- the opponents of same-sex marriage inadvertently handed the federal courts a perfect reason to strike down the century-old statutes along with the constitutional prohibitions of the modern era.

The moral for SSM opponents and their petition drives is this:  Be careful what you ask for: sometimes you not only won't get what you want, but you'll lose what you already have.

The county commissioners apply the Republican standard to their Democratic chairman

It's instructive to compare the reaction of the other county commissioners to Jeff Cogen's affair with the impeachment of President Clinton.  Both involved  a leader having a consensual affair with an indirect subordinate who worked in the White House, though Mr. Clinton was impeached not for his involvement with Monica Lewinsky but for lying about it under oath.  A mostly party-line vote in the Senate acquitted Mr. Clinton, with the Democrats arguing that Mr. Clinton's private involvement with a subordinate did not reflect on his fitness to hold office, and the Republicans maintaining that it did.  One oddity of the current situation in Multnomah County is that the four other commissioners, all Democrats, want Mr. Cogen to resign for conduct eerily similar to President Clinton's.  This implies that if they had been Senators in 1999 they would, under the same principles, have all voted to convict President Clinton and remove him from office.  That's going to make for some interesting conversation if Hillary Clinton should ask for the commissioners' support in the 2016 presidential primary.

Amanda Fritz joins in asking Isaac's question about Sonia Manhas

The Oregonian reports this afternoon that Portland City Commissioner Amanda Fritz has asked the same question I posed this morning: who at Multnomah County gave the order for Sonia Manhas to be fired?  As written by Brad Schmidt:  "Fritz declined to comment on Cogen's decision to reject calls from the Board of County Commissioners for his resignation.  But Fritz did say the county should explain why Manhas was forced to resign Wednesday and who in the county pushed for it."

Who indeed pushed for Ms. Manhas to leave the county, making some say that the county has a double standard, one for women and one, much more lax, for men?  I believe that with one exception, everyone above Ms. Manhas in the county hierarchy -- every one of the suspects -- is female: her supervisor, the county attorney, the deputy county attorney, and the four commissioners.  Mr. Cogen himself is the lone exception, leading to the Homeric conclusion that unless Mr. Cogen himself ordered her to lose her job, Ms. Manhas became the victim of a double standard applied not by the male establishment, but by other women.

Sonia Manhas says she was pushed out of her county job, but by whom?

I followed this morning's hearing at Multnomah County with great interest.  The commissioners listened to public testimony on a resolution, introduced by Judy Shiprack, that calls on county chair Jeff Cogen to resign because of his affair with Sonia Manhas, a manager in the county's public health department.  Ms. Manhas has resigned her position, saying that unnamed county officials forced her to quit. The commissioners voted 4 to 1 for the resolution, with Mr. Cogen understandably voting against it.

One argument that Mr. Cogen's detractors are making is that since the other person in the affair was forced to resign over this issue, in fairness Mr. Cogen should resign also.  Let's assume that unnamed county officials in fact forced Ms. Manhas to resign. Consider the possibilities.

First, Ms. Manhas may have violated county policies so egregiously that she deserved to be fired.  In that case the question should be whether Mr. Cogen also violated county policies so egregiously that he should resign.  The public evidence so far indicates that he didn't. 

Second, Ms. Manhas may not have violated county policies sufficiently to merit being fired.  In that case the question the commissioners should be asking is not whether Mr. Cogen should resign, but who at the county unjustly pushed Ms. Manhas out.  The number of suspects is limited:  the five commissioners, Ms. Manhas's supervisor, and the county attorney.  It strikes me as very odd that the county has not disclosed who decided to fire Ms. Manhas.

Third, it's possible that Ms. Manhas did not tell the truth when she said that county officials forced her to resign, but in that case the county would have promptly denied her statement and said that she resigned of her own free will and not under pressure from her employer.  The county hasn't said so, so I rule this out.

Thus, it's wrong to say "Ms. Manhas had to leave, so Mr. Cogen should also," unless both of them violated county policy to the same egregious degree.  If the other commissioners believe that Ms. Manhas was unjustly terminated, then they should find out who ordered her to leave.  There's time enough to look into what Mr. Cogen did.

Jeff Cogen should stay put

I think people were saving up their scandals waiting for Professor Bogdanski to start his blog sabbatical, including perhaps the one involving Multnomah County chair Jeff Cogen and county health department manager Sonia Manhas, who had a workplace affair that recently ended.  It's a story with all the elements of the genre:  rising political star, attractive employee, out-of-town trips, flirtatious e-mails, and so on.  The crescendo of disclosures led the Oregonian to call on Monday for Mr. Cogen to resign.

Much as I'd instinctively like to join the chorus to "throw the rascal out," I've been searching through all of the smoke looking for the fire, and I haven't found it.  The suspicion that their relationship brought Ms. Manhas preferential treatment doesn't so far have any facts behind it.  Her push to work two days a week in his office was an idea that Mr. Cogen said he liked, but so far as has been reported, did nothing to bring about.  The only county money he expended on their affair, at least as reported so far, is $50 on a hotel room upgrade in Atlanta. (At that modest rate, one Rudy Crew is worth dozens of Jeff Cogens.)  Notably absent from the smokestorm is any allegation that Mr. Cogen and Ms. Manhas broke a law or a county policy.

Mr. Cogen and Ms. Manhas have brought shame on themselves and embarrassment to his wife, her husband, and their children.  But merely being the object of derision is not, even in politically correct Portland, a firing offense.  I'd like to see Mr. Cogen stay in his job and let the voters judge him in the next election based on his performance in the boardroom.   I do predict that he won't be going to many out-of-state conferences between now and then.

Isaac dissects Hollingsworth v. Perry (the other SSM case) and shows that Chief Justice Roberts is smarter than you think

Last week I wrote about the Supreme Court's decision in United States v. Windsor, in which the Supreme Court held unconstitutional the provision of the Defense of Marriage Act (DOMA) that defined marriage as between one man and one woman. Justice Kennedy, writing for the court majority, decided the case on federalism grounds:  the definition of marriage has traditionally been left to the states, some states have defined marriage to be between one man and one woman, others have defined marriage to be between two adults without regard to gender, and it isn't really the federal government's business to impose its own definition of marriage that disqualifies certain state-recognized marriages from being recognized by the federal government.  In the particular case, two female New York residents were legally married in Canada.  After DOMA was adopted, New York passed al law that recognized same-sex marriages that were legal where made as being legal in New York.  One spouse died and left her estate to Windsor, the surviving spouse.  Windsor claimed the marital estate tax deduction, the IRS denied the deduction based on DOMA, and the Supreme Court eventually held that the one-man-one-woman portion of DOMA was unconstitutional.  Rights that New York chose to recognize, Justice Kennedy wrote, could not be taken away by the federal government.

The same day, the Supreme Court issued its opinion in Hollingsworth v. Perry, the Proposition 8 case from California.  The voters of California passed the Proposition 8 initiative, basically a mini-DOMA that forbade same-sex marriage in California.  A same-sex couple challenged the initiative.  The state declined to defend Proposition 8, and a federal trial court held that Proposition 8 unconstitutionally discriminated against same-sex couples.  The chief petitioners of Proposition 8 asked to intervene in the case, on the ground that the state wasn't defending their initiative.  The California supreme court said that under California law, the chief petitioners of an initiative have standing to defend their ballot measure if the government won't, and allowed them into the case.  The petitioners appealed the trial decision to the court of appeals, which affirmed the trial court and held that Proposition 8 was unconstitutional.  The petitioners then appealed to the Supreme Court.  The Supreme Court vacated (cancelled) the decision of the court of appeals, holding that because the chief petitioners, who didn't want to marry persons of the same sex, would be in the same position whether Proposition 8 is upheld or struck down, they had no standing to defend the measure.  Even though California law (the court said) gives the petitioners special standing to defend their measure, the federal government doesn't have to recognize the special rights that the state court grants.  This, of course, is contrary to the Court's decision of a few minutes earlier, in which it insisted that the federal government must recognize rights granted by the state on matters of state concern, such as marriage; apparently in the Supreme Court's view state legislation is not as important to the states as marriage is.

The kicker comes in the  clever way that Chief Justice Roberts, writing for the Hollingsworth majority, disposed of the case.  If he and the Court had affirmed the ruling of the court of appeals, then it would be the law of the land that Proposition 8, and by extension similar measures in other states, are unconstitutional: that is, states could not constitutionally prohibit same-sex marriage.  He didn't do that; instead, he and the Court vacated the Ninth Circuit ruling on the ground that the petitioners didn't have standing to defend Proposition 8, and therefore the Ninth Circuit should not have heard their appeal.  That means that the Ninth Circuit's ruling that Proposition 8 is unconstitutional is not the law any more.  The decision of the trial court is still in place, I think, but that decision applies only to California and doesn't bind any other state or federal court.  That's pretty clever.

But wait -- there's more.  The really clever, or possibly diabolical, thing is what will happen if the case gets back to the California federal trial court.  Unlike when it heard Hollingsworth v. Perry several years ago, that court is now bound by the Supreme Court's decision in Windsor, which holds that as a matter of constitutional law, the states can regulate marraige and decide who can get married.  (The Windsor court majority very carefully did not say that states were required to recognize same-sex marriages.)  The upshot?  The Windsor court in effect said that Proposition 8 is constitutional, and the Hollingsworth court kept the California decision from preventing the other 49 states from banning same-sex marriage.

Chief Justice Roberts pulled off an amazing bit of legal legerdemain: the result of the two victories for proponents of same-sex marriage is that 49 states can now constitutionally ban it.

Isaac dissects one of the Supreme Court's decisions on same-sex marriage

Yesterday the Supreme Court issued its decisions in two cases connected with same-sex marriage, one involving a challenge to the Defense of Marriage Act (the Clinton administration's law that defined marriage, for all federal purposes, as between one man and one woman), and the other involving California's Proposition 8, a voter-approved initiative that defined marriage in California as between one man and one woman.  The results of both cases will go down as landmarks, but the opinions themselves suggest that the Justices would benefit from some graduate courses in constitutional law and legal writing.

The first case, United States v. Windsor (opinion here, in PDF), is a tax case.  Edith Windsor and Thea Spyer, both women and residents of New York, were married in Ontario, Canada in 2007, where same-sex marriage was legal.  Ms. Spyer died in 2009 and left her entire estate to Ms. Windsor.  Legacies to spouses are exempt from federal estate tax.  Ms. Windsor paid $363,053 of estate tax and then sued for a refund, asserting that as Ms. Spyer's surviving spouse, the gift to her was exempt from the federal estate tax.  The IRS asserted that under Section 3 of the Defense of Marriage Act, Ms. Windsor had not been married to Ms. Spyer within the meaning of the estate tax laws, even if New York considered them to have been married.  A trial court held Section 3 unconstitutional and ordered a refund.  The United States appealed, sort of, and the Second Circuit Court of Appeals upheld the District Court.  The United States appealed that decision to the Supreme Court, sort of (I say "sort of" because in its appeal the United States asked the Supreme Court not to reverse the Second Circuit, but to affirm the decision and hold that Section 3 of DOMA was unconstitutional.)

In his opinion for the Windsor majority, Justice Kennedy gives a good analysis of whether the Court can hear the case at all: is there a real case or controversy if the United States and Ms. Windsor are advocating the same position?  When he gets to the merits of the case, he wanders afield from the legal principles, and loses track of time.  For instance, he describes New York's marriage law as follows:

By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples whowished to be married, the State acted to give their lawful conduct a lawful status.  This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages.

Justice Kennedy then continues:

DOMA seeks to injure the very class New York seeks to protect.  By doing so it violates basic due process and equal protection principles applicable to the Federal Government. * * * 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.

Justice Kennedy recognized earlier in his opinion, but forgot it here, that Congress passed DOMA before New York or any other state permitted same-sex marriage.  That is, using his reasoning, DOMA sought to injure a class that didn't yet exist.

I predict that legal scholars will mostly celebrate the result of the Windsor case even as they tactfully gloss over the argument the Court used to get to that result.  What saves Justice Kennedy's opinion from being considered bad (as a piece of legal writing) is that Justice Scalia's dissent is even worse.  I'll have more to say about that in another post.