Tag: Supreme Court

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Why the Supreme Court will uphold same-sex marriage (Part 2)

A friend whose prognostications about politics I respect and who happens to be married to someone of the same sex, told me recently that he predicts that the Supreme Court, in a decision expected before the end of this month, will refrain from enshrining same-sex marriage in law but command states to recognize such marriages from other states.

That would represent a middle ground—short of finding a constitutional right to marry someone of the same sex—which, in my friend’s view, would allow the Court to continue same-sex marriage on a course toward inevitability nationwide without having to get too far in front of states.

There’s precedent for incrementalism. Two years ago the Court ruled that gay couples married in states that have legalized same-sex marriage are eligible for Social Security and other federal benefits that opposite-sex couples receive. Yet the Court stopped short of declaring a fundamental right to marry.

Still, there are reasons to think the Court may act more sweepingly this time. One is that same-sex marriage itself has become the law in more states. Since the decision in 2013, nine states have legalized same-sex marriage, bringing the total nationwide to 37. Also, 60% of Americans think same-sex marriage should be recognized by law as valid, according to the latest Gallup poll, up from 53% two years ago.

Then there’s the appeal currently before the Court. The parties agree that if the couples who are challenging the bans on same-sex marriage in four states persuade the Court to declare a constitutional right to marry, the question whether states must recognize same-sex marriages performed in other states becomes moot.

So the court could rule as my friend suggests on the first question while ordering states to acknowledge same-sex marriages performed elsewhere, as they do valid heterosexual marriages from other states. But that, as Chief Justice Roberts observed at oral argument, presents an inconsistency that may be difficult for the Court to overlook. Consider the following exchange:

Chief Justice Roberts: I think your… argument is pretty much the exact opposite of the argument of the petitioners in the prior case. The argument that was presented against them is, you can’t do this, we’ve never done this before, recognized same-sex marriage. And now you’re saying, well, they can’t not recognize same-sex marriages because they’ve never not recognized marriages before that were lawfully performed in other states.

Douglas Hallward-Driemeier (on behalf of the petitioners): Well, what—

Chief Justice Roberts: “You’ve got to decide one or the other if you win… You can’t say that [the states] are not treating the marriage as a marriage when they don’t have to do that in the first place.”

In other words, if the couples challenging the law assert that the argument by states in opposition to same-sex marriage that they have never defined marriage to include a couple of the same sex is not a reason to deny same-sex marriage now, the couples cannot then argue that states must recognize same-sex marriages from other states because they’ve long recognized heterosexual marriages from other states.

By extension, the states cannot argue that they cannot be compelled to redefine marriage and then maintain they cannot depart from their longstanding practice of recognizing opposite-sex marriages entered into elsewhere. Either tradition matters or it doesn’t, according to the chief justice’s observation.

That reality may present an obstacle to a justice who may be tempted to decide the appeal as my friend suggests. This assumes, of course, that there already are four votes in favor of striking down state laws that ban same-sex marriage. The inconsistency that Chief Justice Roberts noted may matter most to the chief justice himself or to Justice Kennedy, who together represent the likeliest fifth or sixth votes for a majority.

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Law

Supreme Court limits ability of struggling homeowners to cancel mortgage debts

The Supreme Court dealt financially ailing Americans a setback on Monday in a decision that narrows their ability to erase mortgage debts in bankruptcy.

The Court ruled unanimously that David Caulkett and Edelmiro Toledo-Cardona, who each had two mortgage liens on their respective houses, cannot void a mortgage held by Bank of America that is subordinate to the other mortgage, even though both borrowers owe more on their first mortgage than the property is worth.

Both debtors filed for Chapter 7 bankruptcy, which allows a trustee appointed by the court to sell off the debtor’s assets and discharge any remaining debts, in 2013.

At the debtors’ urging, the bankruptcy court, acting pursuant to a provision of the law that allows debtors to strip away rights to repayment held by creditors who would receive nothing if the house were sold, voided Bank of America’s liens. That rendered the bank unable to foreclose on the loans even if the houses’ values later rose. The 11th Circuit Court of Appeals affirmed the rulings.

The Court disagreed. A secured claim, as defined by the bankruptcy code, means “a claim supported by a security interest in property, regardless whether the value of that property would be sufficient to cover the claim,” wrote Justice Thomas, who added that the debtors had not asked the Court to overrule a decision from 1992 on which the Court based its ruling but instead “request that we limit that decision to partially—as opposed to wholly—underwater liens,” a characterization that Justices Kennedy, Breyer and Sotomayor did not endorse despite joining the ruling.

The decision means that Americans who find themselves in financial distress may remain liable for second mortgages notwithstanding bankruptcy. To cite one example, 23% of Florida’s roughly 1.3 million homes that are worth less than the debt they secure have more than one mortgage, according to the Times.

If a house is worth less than the amount a borrower owes on the first mortgage—a situation known as the home’s being underwater—the second mortgage is worth nothing in a foreclosure.

The debtors’ contention—that a wholly underwater mortgage can be voided but a partially underwater mortgage cannot—would lead to an “odd” result, according to Justice Thomas. Under their approach, he explained, “if a court valued the collateral at one dollar more than the amount of a senior lien, the debtor could not strip down a junior lien under [the relevant precedent], but if it valued the property at one dollar less, the debtor could strip off the entire junior lien.”

“Given the constantly shifting value of real property, this reading could lead to arbitrary results,” Thomas added.

Last year more than 700,000 individuals and couples filed for Chapter 7 bankruptcy. Lenders cheered the ruling, which they say will help to make second mortgages affordable.

Others termed the decision an erosion of rights for vulnerable consumers. “Since 1992, the financial industry has chipped away at [bankruptcy law] to give protections to property regardless of the value of the claim,” David Dayen wrote last March about the appeal in The New Republic. “Now they want to chip away some more.”

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Law

Facebook posts cannot be threats without intent, Supreme Court rules

The Supreme Court on Monday narrowed the circumstances in which someone who posts threats on Facebook or social media can be criminally liable for their actions.

In an 8 to 1 ruling, the court overturned the conviction of Anthony Elonis, a Pennsylvania man who was found guilty in 2011 of threatening his estranged wife, former co-workers and others in series of posts on his Facebook page.

The musings, which contained violent language and images, earned Elonis, writing under the pseudonym “Tone Dougie,” a sentence of 44 months in prison for violating a federal law that bars “transmitting in interstate commerce” a threat to injure another person or group of people.

On appeal, Elonis contended that to be criminal—and otherwise beyond the protection of the First Amendment—the threats required a subjective intent that Elonis claimed he lacked. According to Elonis, the trial court erred when it instructed a jury that a statement constitutes a criminal threat when a “reasonable person” would interpret the statement as “a serious expression” of an intent to inflict injury.

The Court agreed, noting that to be criminal, conduct must derive from a defendant’s mental state; that negligence alone is insufficient to support liability. “Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state,” Chief Justice Roberts wrote for the majority. “That understanding ‘took deep and early root in American soil’ and Congress left it intact here… ‘wrongdoing must be conscious to be criminal.’” (citation omitted)

Though the court did not discuss the implications for free speech raised by the appeal, the American Civil Liberties Union and other groups had charged that the instruction insisted on by the trial court would discourage speech protected by the First Amendment.

For its part, the government contended that requiring a subjective intent as Elonis urged would undermine the goal of protecting people from fear of violence regardless whether the person who threatens them intends his words to be harmless.

The Court limited its opinion to Elonis’ intent. “Having liability turn on whether a ‘reasonable person’ regards the communication as a threat—regardless of what the defendant thinks—‘reduces culpability on the all-important element of the crime to negligence,” wrote Roberts. “We ‘have long been reluctant to infer that a negligence standard was intended in criminal statutes… Under these principles, ‘what [Elonis] thinks’ does matter.” (citations omitted)

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Law

Why the Supreme Court will uphold same-sex marriage

A recent piece by Jill Lepore in The New Yorker sheds a fascinating light on legal arguments in support of same-sex marriage, the constitutionality of which the Supreme Court is expected to decide by late June.

Lepore traces the development of theories that underpin the Court’s rulings on matters ranging from contraception and abortion rights to marriage. As she elucidates, the battles for reproductive and gay rights turned on the Court’s finding guarantees of privacy and equal protection of the law enshrined variously in the Fourth, Fifth, Ninth and Fourteenth Amendments, the latter of which denies states the ability to discriminate.

Still, as Lepore explains, equal protection has provided the way forward for marriage equality notwithstanding the court’s precedents that find protection for both contraception and choice in constitutional guarantees of privacy.

“When the fight for equal rights for women narrowed to a fight for reproductive rights, defended on the ground of privacy, it weakened,” Lepore writes. “But when the fight for gay rights became a fight for same-sex marriage, asserted on the ground of equality, it got stronger and stronger.”

Reading that conclusion sent me to an exchange during oral argument in April between Justice Alito and Mary Bonauto, a lawyer for the Gay & Lesbian Advocates and Defenders who argued the case for the petitioners in the same-sex marriage appeal.

Amid the back-and-forth, Justice Alito asked Bonauto whether, if the Court were to overturn state bans on same-sex marriage, the justices might later have a basis for denying a marriage license to a group consisting of two men and two women.

Bonauto answered yes, that the state might reasonably question whether such an arrangement constitutes marriage, which, she noted, is between two people. A foursome also might raise concerns about consent and coercion, she added.

“Let’s say they’re all consenting adults, highly educated,” Alito pressed, referring by reference to an observation by Justice Roberts that marriage between two people of the same sex did not exist in the U.S. until two decades ago. “They’re all lawyers. What would be the logic of denying them the same right?”

Again, Bonauto replied that marriage is between two consenting adults who pledge their commitment to each other. “I assume there’d be lots of family disruption issues, setting aside issues of coercion and consent and so on that just don’t apply here, when we’re talking about two consenting adults who want to make that mutual commitment for as long as they shall be,” said Bonauto. “So that’s my answer on that.”

That may be true but what Bonauto didn’t say during the exchange, and what Lepore underscores indirectly, is that one reason for denying a marriage license to four people is that numbers, by themselves, do not raise a question of equal protection of the law. Distinctions between people based on race or sex do.

Lepore cites a decision in 2003 by the Supreme Judicial Court of Massachusetts that established the commonwealth as the first to guarantee same-sex marriage as a constitutional right. In that case, Chief Justice Margaret Marshall tied the right to marry to equal protection. As Lepore writes, describing Marshall’s opinion:

“Marshall also cited Loving v. Virginia, the 1967 Supreme Court Case that struck down a ban on interracial marriage, drawing an analogy between racial discrimination (if a black person can marry a black person but cannot marry a white person, that is discrimination by race) and sex discrimination (if a man can marry a woman but cannot marry a man, that is discrimination by sex).”

Of course, both are inconsistent with what Marshall described in her decision as “equality under law.” The observation by Lepore fills in what seemed to be missing the first time I read the exchange between Justice Alito and Bonauto.

Missing to me, that is, not from the argument. Later in the session, Donald Verrilli, Jr., the solicitor general, underscored the significance of equal protection as a legal theory that supports same-sex marriage. As it happens, the solicitor general advanced only that theory, reasoning that it alone provides a basis for the Court to uphold same-sex marriage. As Verrilli explained:

“We think… this issue really sounds in equal protection, as we understand it, because the question is equal participation in a state-conferred status and institution. And that’s why we think of it in equal protection terms… what these gay and lesbian couples are doing is laying claim to the promise of the Fourteenth Amendment now.”

The argument seems insurmountable based on the history that Lepore delineates. It also seems likely to be the basis upon which a majority of justices will decide the appeal.

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Law

On Facebook, distinguishing art from assault

When you post something online, what’s the difference between making a threat and striking a pose?

The Supreme Court on Monday will hear arguments in a case that raises that question. It involves a challenge by a Pennsylvania man to his conviction in 2011 for threatening his wife, his former co-workers and others in a series of posts to his Facebook page.

After his wife left him and he lost his job at an amusement park, Anthony Elonis adopted the pseudonym “Tone Dougie” and published musings and lyrics that he says he penned not as a statement of his beliefs but solely as therapy for his pain.

One post, which he published two days being fired, read:

Y’all saying I had access to keys for the f#$king gates, that I have sinister plans for all my friends and must have taken home a couple. Y’all think it’s too dark and foggy to secure your facility from a man as made as me. You see, even without a paycheck I’m still the main attraction. Whoever thought the Halloween haunt could be so fucking scary?

Another, which Elonis posted after his wife obtained a protection order, stated:

Fold up your protection-from-abuse order and put it in your pocket. Is it thick enough to stop a bullet? Try to enforce an order that was improperly granted in the first place.

That and other writings earned Elonis a sentence of 44 months in prison for violating a federal law that prohibits “transmitting in interstate commerce” a threat to injure another person or group of people.

Threats of violence against a particular person or group of people – so-called true threats – are not protected by the First Amendment.

At trial, Elonis asserted that his postings were similar to lyrics by rappers such as Eminem, who in songs has fantasized about killing his ex-wife. With that in mind, Elonis asked the judge to instruct jurors they could convict him only if they found that Elonis intended to communicate a threat.

However, the court instructed the jury that a statement constitutes a true threat — and thus beyond the protection of the Constitution — when a “reasonable person” would interpret the statement as “a serious expression” of an intent to inflict injury.

On appeal, Elonis contends that true threats require a subjective intent to threaten another person. That’s especially true online where messages may be seen by anyone, according to the American Civil Liberties Union and other groups. As the groups write in a friend-of-the-court brief:

A message posted to a publicly available website or mailing list is potentially viewable by anyone with an Internet connection anywhere in the world. A speaker may post a statement online with the expectation that a relatively small number of people will see it, without anticipating that it could be read – and understood very differently – by a much broader audience.

An objective test for online communication “would inevitably chill constitutionally protected speech, as speakers would bear the burden of accurately anticipating the potential reaction of unfamiliar listeners or readers,” the groups say.

For its part, the Justice Department, which is pressing the court to uphold the conviction, argues that the requiring a subjective intent to threaten would undermine the law’s goal of protecting people from a fear of violence regardless whether the speaker intended the statement to be harmless.