In the last post in this series on New York Court Watcher, we explored the Court's decisions in Citizens United (corporate spending on political communications is constitutionally protected free speech) and Humanitarian Law Project (teaching human rights and peaceful advocacy to designated terrorist groups is not). [See Supreme Court: Highlights...(Part 2--Free Speech & Related Decisions), Oct. 8, 2010.]
We now turn to the other 2 decisions, from last term's "Top Ten" highlights, that involve issues related to free speech . One pits free speech and freedom of religion against anti-discrimination policy. The other pits the ability of the public and the press to view a trial of great interest against procedural regularity in changing court administrative rules.
In each case, the 4 conservative Justices voted one way and the 4 liberals voted the other. Additionally, in each case, the rights of gays and lesbians were at issue. Now forget about everything else in these cases but that last factor. Is there much doubt that the concern for gay and lesbian rights would be the determining factor in how the conservative and liberal Justices would vote? Well, that's exactly how these 2 cases played out.
In Christian Legal Society, the thus named student religious group excluded gays and lesbians from membership on the ground that homosexuality is a sin. The school, a state university law school, refused to recognize and fund the group. The exclusion of gays and lesbians violated the school's policy prohibiting discrimination on the basis of, among other things, sexual orientation.
The 4 more liberal Justices--Stevens, Ginsburg, Breyer & Sotomayor--sided with the school's anti-discrimination policy against the religious group. In short, they sided with the equal-treatment interests of gay and lesbian students. The 4 more conservative Justices--Roberts, Scalia, Thomas & Alito--sided with the religious group. In short, these 4 sided with the speech and association interests of the religious group.
Justice Kennedy, who has typically sided with the rights of gays and lesbians in past cases, broke the tie and voted with the liberals.
However stated in judicial jargon, constitutional interpretation, or applicable legal tests, the case boils really down to this: does eliminating discrimination on the basis of sexual orientation justify restrictions on a group's religious speech and association? The liberal Justices place great importance on equal rights for gays and lesbians. The conservative Justices less so. That seems to have dictated the voting. Nothing more; nothing less.
But what about the interests of the religious group? Maybe the better way to look at this case is to view the votes as for or against those interests. Maybe the deciding factor was the interests of religious groups, and which Justices care about them. Not the interests of gays and lesbians.
Perhaps. But for certain Justices, the interests of gays and lesbians seem always to lose. When those interests are involved in a case, it's a very good predictor that the conservative Justices will vote the other way. Not just in favor of religion or a religious group. But for any interest opposing that of equal treatment for gays and lesbians.
Examples? What about the organizers of a parade excluding gays and lesbians in violation of a state's anti-discrimination law? The conservative Justices then on the Court all voted against the state's law which required equal treatment for gays and lesbians. (Hurley v. Irish-American Gay Group of Boston .)
What about the Boy Scouts excluding gays and lesbians from leadership positions in violation of another state's anti-discrimination law? The conservative Justices all sided against the state's law which required equal treatment for gays and lesbians. (Boy Scouts v. Dale .)
What about a state law making same-sex intimacy a crime? On that one--the 1st time around--all the conservative Justices supported the state's law. (Bowers v. Hardwick .) The 2d time around, 17 years later, the conservative Justices supported a similar state law--but this time they lost Justice Sandra Day O'Connor's vote, as well as the case. (Lawrence v. Texas .)
The common thread? The conservative Justices consistently find merit in whatever interests are posed against equal rights for gays and lesbians. The liberals, on the other hand, consistently find equal rights for gays and lesbians compelling. The conservatives are relatively unsympathetic to gays and lesbians; the liberals, by contrast, are very supportive.
And the 2d of the 2 "highlight"cases to be looked at in this post underscores the point. The conservative versus liberal divide in cases involving gay and lesbian rights is determined by the Justices' support or not for those rights. Not the competing interest involved. Whatever that competing interest might be.
Hollingsworth involved a decision of a federal district court judge and the reviewing federal appeals court to allow the video broadcasting of a trial. At issue in the trial was the constitutionality of California's Proposition 8 which prohibits same-sex marriage in the state.
The courtroom could not fit everyone interested in watching the trial. Additionally, there was a great deal of interest in the trial around the country. So the trial judge and the appeals court decided to accommodate interested members of the public and the press by allowing closed circuit televising to several federal courthouses in California and some other states as well.
The supporters of same-sex marriage (i.e., the challengers of Prop 8 ) supported the broadcasting. The opponents of same-sex marriage (i.e., the defenders of Prop 8) opposed it. The Supreme Court issued a highly unusual emergency order, siding with the opponents of same-sex marriage, and blocking the broadcasts. The vote was 5 to 4. Guess which Justices sided with whom?
The Court's decision was issued in an unsigned opinion. The dissent, however, was signed. The dissent was authored by Justice Breyer and joined by the 3 other liberals--Stevens, Ginsburg and Sotomayor. Recall that all of them also voted to uphold the law school's anti-discrimination policy in Christian Legal Society.
The remaining 5 Justices joined the unsigned majority opinion. Included in that 5 were all the conservative Justices--Roberts, Scalia, Thomas and Alito. Recall that all of them also voted to support the student group that excluded gays and lesbians in Christian Legal Society.
Tipping the scales in Hollingsworth--once again--was Justice Kennedy. But this time he voted with the conservatives. His vote is the only one that is the slightest bit surprising.
Why did the majority of the Court stop the TV broadcast of the Prop 8 trial? According to the unsigned opinion, the trial judge and appeals court did not follow the proper procedures for changing the rules to allow the broadcasting. Specifically, not enough notice was given to the public to comment. Also, the witnesses might face harassment and threats if they were shown testifying. Moreover, it is unclear what "the effect of broadcasting in high-profile, divisive cases" might be.
According to the dissenters, the parties in the case were actually given notice and asked to comment a few months before the trial began. The trial judge also gave public notice 2 weeks before the trial began and received nearly 140, 000 comments. Of those, 99.9 % favored broadcasting.
Finally, the issuance of a writ of mandamus--the emergency order--is a drastic remedy used by courts only to prevent "irreparable harm." And the Supreme Court has very rarely--if ever--issued such an emergency order to intervene in the administrative matters of a lower court.
It just doesn't seem to add up. Not, at least, if one is searching for a legal basis that justifies the Supreme Court's stepping in to take the rare, drastic action of issuing a writ of mandamus. It does add up, however, if one simply considers the underlying positions of the parties. One is opposed to same-sex marriage; all 4 conservative Justices sided with them on this ancillary issue of broadcasting. The other party supports same-sex marriage; all 4 liberal Justices sided with them. In short, the identical divide over gay and lesbian rights as in Christian Legal Society--as well as in past cases involving such rights.
As for Justice Kennedy, who typically aligns himself with the liberals on issues of gay and lesbian rights, his voting with the conservatives in Hollingsworth is curious. One possibility is his special interest in the operation of the the federal appeals court involved in this case--i.e., the 9th Circuit--as well as the trial courts under its authority. Prior to his appointment to the Supreme Court by President Reagan, Kennedy was a judge on the 9th Circuit. He might have some special interest or concern regarding the administrative functioning of that circuit. Might, that is.
I surely don't know for certain. And I surely don't have any other certain, near certain, or even likely explanation for his voting with the unsympathetic-to-gay-and-lesbian-rights-conservatives in this case.
So Kennedy's vote remains a mystery. But not so the votes of the other 8 Justices. The votes of the conservatives (opposing the position of the pro-same-sex marriage party) is no surprise. The votes of the liberals (favoring that position) is equally no surprise. No more surprising than the votes in Christian Legal Society.
In these last 2 posts in this series, we've looked at the 4 decisions among last term's "highlights" that deal with free speech and related issues. In the next post we'll take a quick look at how these decisions add up graphically. Yes, graphically. As in with graphs. Then we'll move on to other categories of the "highlight" cases--e.g., criminal, religion and the law, and activism versus restraint.