In Europe, a “Right to Be Forgotten”

       Jeb Magruder died this month at age 79, in relative obscurity four decades after serving time in prison for his role in the Watergate scandals. After he got out, Magruder got religion and went on to serve as a Presbyterian minister for churches in three states.
      Those who lived through Watergate or later became obsessed with it were well familiar with the details of Magruder’s pre-redemption life. Others, however, presumably resorted to a Google search of Magruder’s name — the Internet age technique for biographical research.
       If a European court has its way, however, people like Magruder with unsavory conduct in their pasts may be able to bury such information in an Orwellian memory hole. In a precedent-setting decision for countries in the European Community, the European Court for Human Rights ruled this month [May 13] that, when requested, Google generally must block access to private information about a subject’s distant past unless the public has a “preponderant interest” in the information.
       In effect, the European court ruled that individuals have “a right to be forgotten.” The ruling came in a case brought by a Spanish lawyer, Mario Costeja González, who complained that Google linked his name to news coverage of a 1998 foreclosure proceeding against him. Costeja González contended that Google had to “delink” the news stories because the proceedings “had been fully resolved for a number of years” and any reference to them now was “completely irrelevant.”
       In the United States, the ruling drew mostly critical reaction. “Americans will find their searches bowdlerized by prissy European sensibilities," Stewart Baker, a privacy and computer security expert and former assistant secretary for policy at the U.S. Department of Homeland Security, told The Associated Press.
       "Privacy rights shouldn’t be a tool to rewrite history,” David Vladeck, a Georgetown Law School professor and former consumer protection official with the Federal Trade Commission, told The Washington Post. “Who gets to decide whether all these links get deleted?”
       At first blush, the European ruling seems unlikely to be followed in the United States, where the First Amendment guards against government-enforced restrictions on access to information already in the public domain. In fact, however, the Supreme Court has two precedents — in different contexts and different decades — that look somewhat favorably on a privacy-based right to be forgotten.
       In the earlier of the cases, the Supreme Court ruled in 1979 that a libel plaintiff could be treated as a private instead of a public figure despite a news-covered contempt of court citation two decades earlier. Ilya Wolston sued Reader’s Digest for publishing a book in 1974 that referenced his conviction for refusing to appearing before a grand jury investigating Soviet espionage.
      Unanimously, the court ruled in Wolston v. Reader’s Digest Ass’n that Wolston could take advantage of the lower burden of proof for private figures in his suit. In the main opinion, the court held that Wolston had never voluntarily become a public figure, but two of the justices joined the decision only on the ground that Wolston was entitled to private-figure status because of the passage of time.
       A decade later, the Supreme Court backed the privacy rights of criminal defendants and arrestees in a Freedom of Information Act case involving the FBI’s computerized data base of “rap sheets.” In U.S. Dep’t of Justice v. Reporters’ Committee for Freedom of the Press (1989), the court rejected a news organization’s efforts to check the FBI data base for an individual under investigation for political corruption in Pennsylvania.
      The court acknowledged that the FBI collected the rap sheet information from what are generally public records maintained by state and local law enforcement agencies. But the court ruled that individuals identified in the FBI data base had a privacy interest in “the practical obscurity” of whatever criminal records they might have in any of the thousands of jurisdictions across the country.
      The ruling in the Reporters Committee case is closely analogous to the European decision in the Google case. The European court is not requiring Spanish newspapers to delete the news coverage of the case against Costeja González, but requiring Google not to link to that coverage in effect allows Costeja González to reclaim the “practical obscurity” of his past financial difficulties.
      Privacy law in the United States is not as expansive as in Europe, even though the United States gave birth to the right of privacy in an influential law review article written in 1890 by Samuel Warren and the future Supreme Court justice Louis Brandeis. In the 120 years since, the Supreme Court and lower courts have wavered on how far to go in restricting access to information in the name of a “right to be let alone.”
      In the Internet era, that right is exponentially harder to protect, but the European court is trying with a ruling that individual countries will be tasked with putting into effect. Despite robust First Amendment protections, some U.S. courts might be tempted to try as well. Jonathan Zitrain, a professor of law and computer science at Harvard, suggests that the European court could have required Google not to delink old news but to allow individuals to add linkable replies. Whatever happens in Europe, the hope is that information remains free here in the United States.

Remembering Heroes of Marriage Equality

      Richard Kluger opened his magisterial history of the struggle for racial equality in education, Simple Justice, by telling the story of poor black families in backwater Clarendon County, S.C., protesting for school bus transportation for their children. The NAACP Legal Defense Fund turned the grassroots protest into a court case, Briggs v. Elliott, which predated by a year the case now memorialized in history as Brown v. Board of Education.
      Jo Becker opens her book on “the fight for marriage equality” with the story of Chad Griffin, a well-to-do, well-connected political and public relations consultant in chi-chi West Hollywood, Calif.  Becker, an award-winning journalist, embedded herself in Griffin’s camp for four years to chronicle what she hoped would be a landmark Supreme Court ruling for gay marriage.
       Unfortunately for Becker and her book, Forcing the Spring, the Supreme Court did not use Griffin’s built-from-the-top-down case to outlaw marriage discrimination against gay and lesbian couples in one judicial blow. Undeterred, she opens her book, however, by likening Griffin to civil rights heroine Rosa Parks and depicting Griffin’s decision to challenge California’s 2008 ban on gay marriage, Proposition 8, as the beginning of the marriage equality revolution.
      The movement for marriage equality for same-sex couples actually marked a 10-year anniversary last week. The first legally sanctioned marriages of gay and lesbian couples in the United States were officiated in Massachusetts on May 17, 2004, thanks to a ruling six months earlier by the state’s highest court. In its 4-3 ruling in Goodridge v. Dep’t of Public Health (2003), the Supreme Judicial Court of Massachusetts said same-sex couples had a right under the state’s constitution to the legal benefits of civil marriage and gave the Massachusetts legislature 180 days to pass a law consistent with its ruling. When the state Senate asked whether civil unions for same-sex couples would suffice, the court said no — setting the stage for marriages to begin when the 180-day deadline expired.
      Becker’s book includes no index entry for Goodridge and only slight references to the lead attorney, Mary Bonauto, who had been litigating gay marriage cases in New England states for several years by then. Bonauto and her colleagues at the Boston-based Gay and Lesbian Advocates and Defenders went on to win the first lower court ruling to strike down the federal Defense of Marriage Act (DOMA), which barred federal marriage-based benefits for legally married same-sex couples.
      Bonauto appears for the first time in Becker’s book at page 280. Becker uses her only to commend the federal court trial that Griffin’s dream team of strange bedfellow lawyers — conservative Republican Theodore Olson and liberal Democrat David Boies — put together to challenge Proposition 8. 
      Another of the heroes given short shrift in Becker’s account is Evan Wolfson, who can rightly be called the intellectual father of the marriage equality movement and its most important political tactician. As a student at Harvard Law School, Wolfson wrote a 140-page thesis, “Same-Sex Marriage and Morality: The Human Rights Vision of the Constitution,” one of the earliest arguments for recognizing marriage rights for gay and lesbian couples.
      Wolfson went on to head the national marriage project at Lambda Legal Defense and Education Fund from 1989 to 2001 before founding Freedom to Marry as a stand-alone lobbying and election-oriented organization. Becker notes this history, but calls Freedom to Marry’s strategy “plodding.” Wolfson appears mainly as one of the established gay rights leaders who warned against Griffin’s go-for-broke federal court strategy.
      The more serious slights in Becker’s book, however, are the countless gay men, lesbians, and straight allies who had been working on the marriage issue for years before Griffin came on to the scene. The plaintiffs in the early marriage cases took some risks in agreeing to be identified with a cause that was then politically unpopular and legally uncharted. The recruited plaintiffs in the Prop 8 case — Paul Katami and Jeff Zarrillo and Kris Perry and Sandy Stier — sacrificed some privacy and suffered some harassment, but they had no real fear of backlash in their gay-friendly communities in Los Angeles and the San Francisco Bay area.
      Becker also credits Griffin, and Griffin alone, with marriage equality’s first electoral victories: the pro-gay marriage votes in November 2012 in Maine, Maryland, Minnesota, and Washington. In Becker’s telling, it was Griffin’s decision, as president of the national Human Rights Campaign, to funnel money to those states that turned the tide. Freedom to Marry’s role goes mostly unmentioned — and the same for the in-state organizers and political foot soldiers.
      At the Supreme Court, Becker treats the Prop 8 case as the main attraction and the DOMA case the justices agreed to hear, United States v. Windsor, as sideshow. When the Prop 8 case is dismissed without a ruling, Griffin nevertheless manufactures the iconic photo op of the four California plaintiffs emerging arm in arm, along with Griffin and Boies, at the top of the Supreme Court steps. And Becker gives Olson the credit for the expansive language that Justice Anthony M. Kennedy included in Windsor in striking down DOMA — language cited in the unbroken string of pro-gay marriage rulings since.
      Marriage equality remains a work in progress. Becker has told a good, if partly misleading, story. The history of the fight for marriage equality is yet to be written.

Supreme Court Takes a Pass on Legislative Prayer

      Rajan Zed wore a traditional Indian kurta adorned with a gold scarf as he stood at the front of the U.S. Senate chambers on July 12, 2007, to deliver the opening prayer for the day’s session. Before the Hindu priest could begin, however, Sen. Bob Casey had to gavel three times for order and Capitol police officers had to remove and arrest three Christian activists who were protesting from the galleries.
       The Reno, Nevada, priest had been invited to deliver the invocation by his home state senator, Majority Leader Harry Reid. When news of his selection got out, however, the American Family Association, a fundamentalist Christian organization, sent out “an action alert” to protest.
      “This goes against all history and all tradition of our country,” the group’s president Tim Wildmon said in the message, according to the account in the Capitol Hill newspaper Roll Call. “This fella does not even believe in one god as the Constitution and Declaration of Independence speak of.”
      With order restored, Zed delivered his prayer, the opening seen here. Reid spoke from the floor afterward to thank him. “It speaks well of our country that someone representing the faith of about a billion people comes here and can speak in communication with our heavenly father regarding peace.”
      Later the same year, the small suburban town of Greece, New York, had its own controversy over the issue of legislative prayer. Two of the town’s non-Christian residents objected to the unvarying succession of Christian ministers invited to open the Board of Supervisors’ monthly meetings, many of them with prayers explicitly invoking Christian doctrines.
      After Susan Galloway and Linda Stephens objected, the board allowed a Jewish layman, a Bahai leader, and a Wiccan priestess to open meetings. But a Christian minister opened another of the sessions with a prayer that criticized “the “ignorant minority” who had objected to the sectarian invocations.
      Expect more of these unedifying — and, one might say, unchristian — episodes thanks to the Supreme Court’s decision last week [May 5] allowing sectarian, legislative prayers with only the slightest hint of judicial review to help instill religious tolerance. In a 5-4 decision, Town of Greece v. Galloway, the court found nothing by way of an Establishment Clause violation in Greece’s practice of turning over the official dais to Christian ministers to pray in sectarian terms before citizens gathered for the secular business of municipal government.
       In the main opinion, Justice Anthony M. Kennedy invoked historical tradition dating from the First Congress. The practice of legislative prayer, with what Kennedy called Christian “vocabulary,” was “accepted by the Framers” and “has withstood the critical scrutiny of time and political change.”
      For the dissenters, Justice Elena Kagan invoked a different tradition, a promise in the Constitution to treat believers of every faith alike. As citizens performing duties or seeking benefits of citizenship, Kagan wrote, every American “does so not as an adherent to one or other another religion, but simply as an American.”
      The dissenters — significantly, the three Jewish justices and the liberal Catholic Sonia Sotomayor — conceded the constitutionality of legislative prayer, but wanted only to require “religious neutrality,” in Kagan’s phrasing: accommodation for prayer givers of all faiths and all in nonsectarian terms only.
      In his opinion, Kennedy was more worried about the rights of the government-invited prayer-givers than those of the public audiences. Rules about the content of legislative prayer, he said, would amount to “a form of government entanglement with religion that is far more troublesome than the current approach.”
      Years earlier, Kennedy had had no problem with a different kind of government entanglement in a First Amendment context. He joined the 5-4 majority in Rust v. Sullivan (1991) in upholding a law telling federally funded family planning clinics that they could not counsel clients about whether to seek an abortion.
      In the prayer case, Kennedy cautioned that there might be a constitutional problem with “a pattern” of invocations that either “denigrate” other religions, “threaten damnation,” or “preach conversion.” By finding no such pattern in Greece, however, Kennedy signaled clearly that lower courts should not look hard for any violations.
      Among the other four justices in the majority — significantly, all of them Catholic — Justice Clarence Thomas went along, but only after reiterating his view that the prohibition against government establishment of religion does not apply to state and local governments at all. Thomas was not even sure about its meaning for the federal government. The First Amendment, he said, “probably” prohibits a national establishment of religion.
      Among the many commentators pro and con on the issue, George Will reflected the view of many supporters of government-sponsored prayer by criticizing those who object for having “a thin skin.” On the other side, such columnists as E.J. Dionne Jr. and Ruth Marcus criticized the court’s majority for a lack of “empathy” toward the nation’s non-Christians.
      In her dissent, Kagan dropped a footnote invoking George Washington, Thomas Jefferson, and James Madison in warning that the government’s aligning itself with any particular sect or creed was inevitably divisive. As Kagan noted, the nation was overwhelmingly Christian at the time and far more religiously diverse today. The sight of a Hindu priest delivering a prayer in the Senate chamber produced the kind of acrimony that Washington warned against two centuries earlier. With an Establishment Clause pass from the Supreme Court, one can expect only more such acrimony in the future.

Scalia’s Anti-Government Stress Disorder

       Cliven Bundy and Antonin Scalia have never met, but they have in common a psychiatric condition that belongs in the textbooks if it is not already there: anti-government stress disorder. The disorder stems from an outsized ego and a deep-seated resentment of unwelcome authority and manifests itself at times in confused perceptions of reality held only by those who suffer from the condition.
       Bundy has displayed his condition by squaring off against federal agents the past month over the $1.1 million he owes for grazing his cattle on government-owned land for the past 20 years. In Bundy’s distorted perception of reality, he is a patriot and guardian of constitutional rights instead of a lawbreaking deadbeat.
       Scalia has not taken up arms against the government, though he did tell a law school audience last month [April 20] that if taxes go too high, “perhaps you should revolt.” But like Bundy, Scalia sees himself as a beleaguered patriot and guardian of constitutional rights in dubious battle against overpowering forces, including benighted adversaries in all three branches of the national government who lack his keen vision and wisdom.
       Scalia’s disorder led him astray last week with an embarrassing factual mistake in his dissenting opinion in a case, Environmental Protection Agency v. EME Homer City Generation, [April 29] — a factual mistake so blatant that the court corrected it within less than 24 hours. The mistake was all the worse for Scalia because he mischaracterized a decision in an earlier EPA case that Scalia himself had written.
       The new case was one that Scalia acknowledged was “not of earth-shaking importance,” but he was incensed enough to read much of his dissent from the bench. EPA had erred, in Scalia’s eyes, in adopting what he admitted was likely a “desirable” result on the issue of controlling cross-state air pollution. But the agency, according to Scalia, had disregarded a “clear and unmistakable standard” in the law Congress had passed on the issue.
       To simplify, Congress has included in the Clean Air Act a requirement — the so-called Good Neighbor Provision — aimed at protecting downwind states in the East from air pollution emitted in particular by coal-fired power plants in upwind states in the Midwest and South. The provision requires states to adopt plans that prevent power plants and the like from emitting any air pollutant “in amounts which will … contribute significantly” to pollution in other states.
       To implement that law, EPA developed the so-called Transport Rule, which essentially requires 27 upwind states to reduce emissions of nitrogen oxide and sulfur dioxide according to standards set by EPA. The standards are to be based on air pollution that could be eliminated “cost-effectively.”
       In a 6-2 decision, the Supreme Court upheld the EPA’s approach. Justice Ruth Bader Ginsburg called it “a permissible, workable and equitable interpretation” of the law. Three liberal colleagues joined the opinion, but so did two of the court’s conservatives: Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy.
       In dissent, Scalia saw the EPA as making up the approach on its own in the face of an “unambiguous” statute. Even while calling the law “stupid,” Scalia said the episode was “a textbook example” of why many Americans believe they are governed “not so much by their elected representatives as by an “unelected bureaucracy.”
       EPA’s mistake, Scalia explained in his written opinion, was just like one the agency had made — and the court had corrected — in a decision in 2001. Back then, Scalia recalled, the EPA had wanted to apply a cost-benefit analysis in enforcing another provision of the Clean Air Act, but the law passed by Congress did not allow that approach.
      Unfortunately for Scalia’s critique, he got the facts wrong. In Whitman v. American Trucking Associations (2001), it was industry groups, not EPA, that had asked to adopt a cost-benefit approach. EPA wanted to enforce the law as Congress had written it. And Scalia should have known since he himself had written the decision in the earlier case.
      When a sharp-eyed law professor pointed out the error to the court’s Reporter of Opinions on the same day, the passage was quickly rewritten on line to say that “the parties,” rather than the EPA, had sought a cost-benefit approach. Gone too was a taunting subhead: “Plus Ça Change: EPA’s Continuing Quest for Cost-Benefit Authority.” The new subhead: “The Court’s Precedents.”
      Some legal observers dismissed the mistake as a mere typo, but it was more than that. Scalia fixed in his mind an image of the EPA as an out-of-control bureaucracy and misremembered the past to align with his view of the world.
        Scalia takes off against other parts of government in much the same way. When the court considered the Voting Rights Act two years ago, Scalia cited its overwhelming approval by both chambers of Congress as evidence that it was all wrong. When Roberts led the court in a narrow ruling on campaign finance law in 2007, Scalia accused the chief of “faux judicial restraint.” In Scalia’s disordered mind, the rest of government is so often so very wrong — and he alone is not afraid to say so.

 

Celebrating Times v. Sullivan, Though Dissent Is Heard

       When the Supreme Court struck down so-called “aggregate” campaign contribution limits earlier this month [April 2], Chief Justice John G. Roberts Jr. cast the decision as in line with a long series of free-speech rulings. “If the First Amendment protects flag burning, funeral protests, and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition,” Roberts wrote.
       Justice Antonin Scalia was not on the court at the time of the Nazi parade decision (National Socialist Party v. Village of Skokie, 1977), but he joined in the two other earlier decisions: Texas v. Johnson, 1989; and Snyder v. Phelps, 2011. Indeed, Scalia often boasts of his vote in the flag-burning case to prove his fidelity to originalist constitutional principles.
       Scalia’s devotion to freedom of speech, however, has its limits. He draws the line at a landmark decision being celebrated this year on the occasion of its fiftieth anniversary: New York Times v. Sullivan. The court’s 1964 decision established the now famous rule that a public official cannot recover damages for libel unless he or she proves that the alleged defamation was made with knowledge that it was false or with reckless disregard as to its truth or falsity.
       Appearing in a joint interview with Justice Ruth Bader Ginsburg on The Kalb Report [April 17], Scalia volunteered his disagreement with the decision. “It’s wrong,” Scalia said. “You cannot sue anybody for libel unless you can prove he knew it was a lie,” Scalia declaimed. The Framers “would have been appalled” by the ruling. The court “was revising the Constitution,” he continued, not interpreting it.
       Ginsburg quietly demurred. If the Founding Fathers had been around in the 1960s, they would have approved of the decision, she said. Today, she added, the ruling is “well accepted.”
       Indeed, the precedent is quite secure: no justice has called in a published opinion for reconsidering the ruling since Chief Justice Warren E. Burger and Justice Byron R. White did in separate opinions in a 1985 decision, Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. But Scalia’s was not the only dissenting voice heard during the 50th anniversary celebration. Writing for Bloomberg View last month [March 27], Harvard law professor Cass Sunstein echoed the complaint heard often from public officials that the ruling has left them with no protection against slanderous lies, especially from the news media.
       Far from promoting democracy, Sunstein opined, the ruling has actually disserved self-government. “Talk show hosts, bloggers and users of social media can spread ugly falsehoods in an instant—exposing citizens to lies that may well cause them to look on their leaders with unjustified suspicion,” he wrote. The decision, he continued, “can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S.”
       With those complaints in mind, it is well to recall the case itself. The Times was called to answer in an Alabama courtroom, along with four leaders of Martin Luther King’s Southern Christian Leadership Conference, for an advertisement the civil rights group had placed in the newspaper in 1960. Montgomery police commissioner L.B. Sullivan was not named in the ad, but sued for libel on the theory that the criticism of “police” with minor factual discrepancies defamed him personally.
       Sullivan won six-figure judgments against the Times and the civil rights leaders — serious financial penalties for the newspaper, not to mention the civil rights leaders. The Alabama Supreme Court affirmed the judgments, blinking at Sullivan’s implausible theory of the case.
       Unanimously, the Supreme Court reversed the decision and went further to order Sullivan’s suit dismissed altogether. Justice William J. Brennan Jr. rightly noted that Sullivan’s theory would have allowed libel suits for any criticism of government. And he surely captured the Founding Fathers’ spirit when he said the First Amendment reflects “a national commitment to the principle that debate on public issues should be robust, uninhibited, and wide open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
       Despite the rhetorical flourish, Brennan actually crafted a compromise of sorts: the so-called “actual malice” test allows a public official to win a libel case by meeting the demanding burden of proof. Three justices — Hugo Black, William O. Douglas, and Arthur J. Goldberg — would have gone further and blocked libel suits by public officials for anything relating to their official duties.
       The court fractured three years later in imposing the same burden of proof on public figures in libel cases. Over the years, the court has limited the impact of that decision by narrowing somewhat the definition of public figures. Still, it is undeniably true that libel cases are daunting for public official and public figure plaintiffs these days.
       Importantly, this free-speech protection for libel defendants extends not just to the institutional press, but to anyone — including the bloggers and social media users that Sunstein referenced. As Roberts acknowledged in the campaign contributions case, freedom of speech does come at a cost. But public officials and public figures know how to defend themselves in public debate without the chilling effect of hauling their critics into court. Fifty years out, Times v. Sullivan rightly deserves its place in the pantheon of First Amendment landmarks.

For Couples, Marriage Cases Are Verry Personal

       After the arguments in the Utah gay marriage case had ended, the state’s recently appointed attorney general Sean Reyes approached the six plaintiffs in the case to offer sympathy for what they have gone through. “It’s not personal,” Reyes told the three couples, according to the account by Los Angeles Times reporter Jenny Deam.
       Reyes, a Republican and the first Latino to hold statewide office in Utah, elaborated when reporters caught up with him.  “I wish them the best,” said Reyes, son of an immigrant Filipino father. “Their families are as important to them as mine is to me." Reyes continued to strike a conciliatory tone the next day at a rally of gay marriage opponents, urging the crowd to be “respectful” and “empathetic” toward those on the other side.
       For her part, the lawyer for the plaintiffs also took a conciliatory stance during the hour-long arguments in the case before three judges from the Tenth U.S. Circuit Court of Appeals [April 10]. When Salt Lake City attorney Peggy Tomsic said the state’s voter-enacted ban on same-sex marriage reflected “animus,” Judge Paul Kelly asked whether she was accusing the people of Utah of being “mean-spirited or bigoted.” Tomsic quickly demurred. Animus, she explained, was merely “a constitutional term of art” used to describe exclusionary laws that had no rational basis.
       Reporters who covered the arguments were naturally tentative in their stories about the likely outcome of the case, but anyone who listens to the audio posted on the court’s web site can hear the outlines of a decision to strike down the Utah measure. Alone among the three judges, Kelly, a Republican appointed to the bench in 1991 by President George H.W. Bush, appeared to defend what the state’s lawyer defined as Utah’s “traditional child-centric vision” of marriage. 
       The other two judges had sharp questions for the state’s lawyer: Gene Schaerr, a high-profile appellate lawyer who resigned from a Washington, D.C., firm to return to his native state to defend the gay marriage ban. Schaerr opened by arguing that the Supreme Court had upheld states’ authority over marriage in its decision in June, United States v. Windsor, to strike down the federal Defense of Marriage Act (DOMA), Judge Carlos Lucero, a Democrat appointed by President Bill Clinton in 1995,  pointedly disagreed. The “dispositive language” in Justice Anthony M. Kennedy’s opinion in the case was not about federalism, Lucero said, but about equal protection.
       Judge Jerome Holmes, a conservative African American appointed by President George W. Bush in 2006, asked pointed questions of both lawyers. But he seemed to presage a vote for the plaintiffs by citing the Supreme Court’s decision in 1967 to strike down laws banning interracial marriage. That law “made that mixed-race couple essentially an ‘other’ for the purposes of marriage,” Holmes told Schaerr. “Why is that any different from this situation?”
       Even before the arguments, gay marriage supporters were optimistic about winning Holmes’s vote. He was one of the two Tenth Circuit judges who back in December declined to block gay marriages in Utah while the lower court ruling invalidating the ban was on appeal.
       Schaerr’s decision to pitch the state’s defense on the interests of children led the judges into questions about the social science research on how kids fare in same-sex households. In reply, Schaerr made a telling concession that children of same-sex couples “would likely be better off if their guardians or parents were allowed to be married.” When he continued by saying the same would be true for children of polygamous marriages, Lucero abruptly cut him off. “Let’s talk about gay marriage,” Lucero said.
       The arguments in the Utah case — and arguments before the same panel in a case from Oklahoma later this week [April 17] — mark the first times marriage equality has reached a federal appeals court since the Supreme Court’s decision in Windsor. Since the Supreme Court ruling, gay marriage advocates have won an unbroken string of victories in 11 states from state and federal courts.
       Judges from diverse backgrounds and representing different generations have uniformly interpreted Windsor to undermine the state laws still on the book excluding same-sex couples from marrying. Besides Utah and Oklahoma, state bans have also been struck down by federal judges in Virginia, Texas, and Michigan. The judge in the Virginia case, Arenda Wright Allen, is an African American appointed by President Obama in 2011; the judge in the Michigan case, Bernard Friedman, was appointed by President Ronald Reagan in 1988. In his ruling, Friedman significantly rejected the social science research cited by opponents of same-sex marriage as “unreliable.”
       After Friedman’s ruling, the Detroit Free Press columnist Brian Dickerson recalled that the judge had hired a lesbian law clerk back in 1995 and had taken a grandfatherly interest in her family through her two pregnancies. As the anecdote shows, the court cases now headed toward the Supreme Court may ultimately turn on questions of law, but — despite what Reyes told the Utah plaintiffs — the cases are also unmistakably personal for the couples involved.
       Gay marriage advocates have turned public opinion around by showing Americans the true picture of gay and lesbian families. With those stories before them, judges have been turned around as well, recognizing a right unrecognized as recently as 10 years ago. The only question remaining is what the Supreme Court will do when the first cases arrive there, probably later this year.

Court Opens Door to Yet More Money in Politics

      Through more than 200 years, the Supreme Court invariably included a mix of justices who rose through legal and judicial careers and one or more justices with experience in elective politics. But when former Arizona legislator Sandra Day O’Connor retired in 2005, the court was left for the first time with no one who had ever sought elective office after their days in high school or college.
       It is no mere coincidence that O’Connor’s departure marks the court’s turning point on issues of campaign finance regulation. O’Connor co-authored along with Justice John Paul Stevens what may prove to be the court’s last decision supporting efforts by Congress and state legislators to limit the corrupting influence of uncontrolled money in politics. Her successor, Samuel A. Alito Jr., quickly joined the court’s four other Reagan-era conservatives in what is now the Roberts Court’s string of six decisions striking down federal or state laws aimed at limiting the corrupting influence of unlimited money in political campaigns.
       The Roberts Court claimed its latest victim in a decision last week striking down so-called “aggregate” contribution limits to federal candidates or national parties and political committees. The 5-4 decision in McCutcheon v. Federal Election Commission [April 2] gives any well-heeled campaign donor the right to spread millions of dollars around to congressional candidates and national, state, and local parties in any given election cycle.
       The ruling leaves in place the existing “base” limit on contributions to a single federal candidate: $5,200 per election cycle for a candidate who runs in a party primary and general election and $32,400 to a national party committee. But it wipes out the provision dating from the post-Watergate campaign finance law that established an overall limit on the donor’s contributions.
       For the current election cycle, the limit was $48,600 to candidates and $74,600 to political parties or committees — $123,200 in all. Under the new ruling, a donor theoretically could spread nearly $2.5 million around to 435 House candidates and 33 Senate candidates and perhaps another $1 million or so to party committees and political action committees (PACs).
       The decision, written by Chief Justice John G. Roberts Jr., has an appealing logic, but only if one accepts an initial premise that distorts four decades of campaign finance precedents. In Roberts’ reading, those precedents allow campaign contributions to be limited only as necessary to prevent quid pro quo corruption — which he helpfully defined in court as “this for that” — or the appearance of such blatant bribery-like vote buying.
       Roberts acknowledged, at least for now, that federal law could limit the amount a donor could give to an individual candidate for Congress to prevent the corruption of that candidate. But if a donor could give that amount to nine candidates, Roberts asked, where is the harm in giving the same amount to a tenth? Or, under that logic, to a 435th?
       Way back in 1976, the Supreme Court in Buckley v. Valeo (1976) upheld the principle of aggregate contribution limits as a way to prevent circumvention of the base limits. In a passage joined by six of the eight justices to hear the case, the court said the overall ceiling on contributions was needed “to prevent evasion” of the base limit. A donor could contribute additional sums to party committees, the court reasoned then, knowing that they would funnel the money to the specific candidate.
       Roberts dismisses the passage as a single paragraph on an issue not fully briefed and then goes on to pooh-pooh the possibility of circumventing the base contribution limits so readily. The intricate arrangements needed, Roberts says, are speculative and unlikely. In addition, Roberts stresses that the Federal Election Commission (FEC) now has regulations that make it illegal for a donor to “earmark” a contribution to a party committee to benefit a specific candidate.
       Roberts blithely disregards the FEC’s permanent status of partisan gridlock — the inevitable product of the legal requirement for an equal number of Republican and Democratic appointees. Roberts cited one case in which the agency had found impermissible earmarking. In his dissent, Justice Stephen G. Breyer pointed more persuasively to eight cases in which the FEC had failed to enforce earmarking restrictions.
       More broadly, Roberts simply ignores the political reality of campaign finance: influence-buying money, like water, will find its own level.  As Breyer noted, the court in Buckley upheld contribution limits on the ground that they would help prevent “improper influence” on candidates, not merely quid pro quo corruption. And influence is what campaign donors seek to buy — and now will be able to buy in larger and larger amounts.
       The new ruling marks the second time that Roberts, an adherent to judicial restraint in his confirmation hearing in September 2005, has presided over the overruling of a campaign finance precedent to strike down a law passed and reaffirmed by Congress. Four years ago, in Citizens United v. Federal Election Commission (2010), the court’s precedent-breaking decision freed corporations or labor unions to spend unlimited amounts on their own in political campaigns.
      In his dissent at the time, Stevens wryly observed that few Americans other than the court’s majority would have worried about “a dearth of corporate money in politics.” It is all the more true that few Americans want more money from well-heeled donors to flow to congressional campaigns. But that is what the Roberts Court, by a single vote, has now allowed — and most assuredly will occur.