SCOTUS Justices Roberts & Kennedy

Just prior to the Fourth of July holiday, on one of the last days of its term, the SCOTUS announced the split-decision in Obergefell v Hodges, a case from the 6th Circuit Court of Appeals, our appellate circuit, that also included the Michigan case of April DeBoer. In Justice Anthony Kennedy's opinion, the right of same-sex couples to marry is treated as a fundamental right under the 14th Amendment to the United States Constitution.

Readers of this blog are well familiar with the various marriage equality civil rights struggles that have played out in courts across the country over the past decade. But it was never a given that the High Court would pronounce such a sweeping endorsement of a now-fundamental right.

The right to marry the person of one's choice, whether that person be of another race or of the same gender, is perhaps one of the most important decisions we make in our lives. So it does follow that such a right, although not expressly stated in our constitution, is truly fundamental; our basic human experience makes it so.

The 5-4 marriage equality decision, authored by Justice Kennedy, was joined by all three female justices as well as Justice Steven Breyer. Each of the conservative justices authored scathing dissents with Justice John Roberts being the most analytic among the quartet.

The basic holding of the majority opinion is that the 14th Amendment to the U.S. Constitution requires all states to license a marriage between two persons of the same gender and to recognize same-sex marriages performed in other states.

In reaching this conclusion, Justice Kennedy discussed how the institution of marriage has evolved since the Colonial era, marked by arranged marriages. He then cited to some of the landmark cases involving homosexuality such as Bowers v Hardwick [the 1986 case that upheld Georgia's criminalization of certain homosexual acts]; Lawrence v Texas [the 2003 decision overruling Bowers]; and of course, United States v Windsor [striking down as unconstitutional the federal Defense of Marriage Act which defined a marriage as solely between one man and one woman in the federal benefits context].

Justice Roberts' principal dissent makes the following points, as summarized by Cornell University Law Professor Michael C. Dorf:

(1) there is a difference between support for same-sex marriage as a policy matter and as a constitutional matter; (2) premature constitutionalization of a right that cannot yet be said to be deeply rooted in the nation’s history and traditions risks undermining long-term support for the right because defeat of the anti-same-sex-marriage position in the democratic process would be more acceptable; and (3) the majority’s logic opens the door to claims such as a right to polygamy. 

Voicing the true conservative disdain for an activist Court, Justice Roberts says that SCOTUS should not "seize for itself" a question that our Constitution leaves for the people to decide using the political machinery.  "Who do we [justices] think we are?", he asks.

While the SCOTUS does generally eschew significant constitutional pronouncements, it has a long-tradition of righting the wrongs of rogue state legislatures and an occasionally errant Congress. This is the essence of our check-and-balance system of federalist government.

Before news of the decision in Washington D.C. even hit the left coast, new issues involving same-sex partnerships were being conjured-up by legal scholars. Now that such couples have a constitutional right to marry, when they do so, can disputes involving employment and housing discrimination be far behind?  Also, where does this leave the so-called "religious preference" laws?

The nice thing about our ever-evolving common law system, from the lawyers' perspective, is that there is always another legal dispute just around the corner; the dust never really settles.

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On Monday, I was scheduled for admission to the bar of the U.S. Supreme Court; a very formal proceeding.  So first thing Monday morning, I made my way past the security checkpoints of the storied courthouse on the far-side of the Hill, and into Room G-32 (they have an entire suite of offices devoted to bar admissions).

There were only four attorneys slated for individual admission on the Court's docket that day; the last day of the 2009-2010 term.  Good news for us admittees; the Court was issuing 4 opinions so the entire bench would be present for the admission ceremony.

In another piece of extraordinary luck, we were seated in the front row of the courtroom for the day's proceedings.  I actually had a better seat than Nina Totenberg from NPR and Bill Mears of CNN; both were present to hear the opinions read from the bench.

The high-point from that session was Chief Justice John Roberts reading the 6-3 majority opinion in the case of Humanitarian Law Project v Holder; followed by Justice Stephen Breyer reading his dissent (joined by Justices Ginsberg and Sotomayor).  Dissents rarely are read from the bench in the High Court's chamber; this one signaled a strong warning from the Court's liberal wing that the government had gone too far by criminalizing free speech in the name of national security.

This case (actually two cases) involved application of a 1996 federal law banning "material support" to known foreign terrorist organizations black-listed by the Secretary of State.  The terrorist groups in these cases were not Al Qaeda or the Taliban but rather, dissident groups from Turkey and Sri Lanka.

The actions sought to be criminalized in the Holder cases would ordinarily receive First Amendment protection as a form of "pure political speech".  For example, teaching members of the foreign groups how to petition bodies like the United Nations, or hiring an attorney to resolve disputes in a US courthouse.

The federal government has utilized the "material support" law as an effective courtroom weapon in our protracted war on terror.  Justice Roberts emphasized, however, that the Court's holding was narrow and did not criminalize pure speech; just conduct in aid of known terrorist groups.

Prior to Humanitarian Law Project, the Court's terrorist cases were limited to constitutional issues surrounding detainees.  This case, the only "terrorist" case to be decided this term, moved the terrorist jurisprudence outside the detention centers and into our streets; into the heart of our right to free speech.  In so doing, the High Court's decision in this case affects each and every one of us as free thinking individuals.

When the cases were argued before the Court back in February, it was Solicitor General Elena Kagan, subsequently nominated by President Obama to occupy a seat on that very Court, who vigorously defended the law and its effectiveness in combating terror here in the homeland.  She prevailed in the forum where, presumably in October, she will become a mainstay.

The Holder decision evidences the Court's traditional and continuing deference to the political branches (Congress and the Executive) in matters of national security.  In the 21st Century, perhaps like no other time in our history, national security matters are everywhere; even in our own backyards.

After the Holder opinions were read, the Chief Justice turned to the administrative motions of the day, calling my long-time college friend and fellow-attorney, Barak Romanek, to the podium to move for my admission.  Thankfully, his motion was granted and I was duly admitted to the bar of the SCOTUS with a friendly nod from the Chief Justice.

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According to the Michigan Daily, the on-campus newspaper at the University of Michigan, U.S. Supreme Court Chief Justice John Roberts will speak today at Hill Auditorium as part of the events surrounding the UM Law School's 150-year anniversary; he will also attend the football game tomorrow versus Notre Dame.

In accepting the invite from the Law School, Justice Roberts apparently turned-down a $15,000 honorarium which UM says it never expected him to accept in the first place.  Talk about Ivory Tower politics...

Most of the impressive Law School events are “sold-out”.  Nevertheless, for the 100,000 plus fans expected to attend the classic fall matchup at the Big House, it’s nice to know you’re in supreme company.

Go Blue!