Prop 8

After yesterday’s decision in McCutcheon v. FEC, where the Supreme Court found that aggregate contribution limits violate the First Amendment, campaign finance is back in the spotlight. In October, when the Court heard oral arguments for McCutcheon, I wrote about why I thought Shaun McCutcheon should prevail and why “rumors of democracy’s death are greatly exaggerated.” Others apparently still believe the rumors.

Something else this week delivered grist for the mill, as the country considers how political causes ought to be funded. Mozilla, the nonprofit foundation responsible for the Firefox browser and other open-source ventures, promoted Brendan Eich to CEO last week. California law required the public report of Eich’s 2008 contribution to the campaign to pass Proposition 8, the ballot measure amending the state constitution to prohibit same-sex marriage. Prop 8, of course, eventually gave rise to the Supreme Court’s decision last term in Hollingsworth v. Perry. Eich’s financial support of Prop 8 has now given rise to a slew of woes for Eich and Mozilla.

Half of Mozilla’s board members quit, protesting a CEO with a history of activism against same-sex marriage. Some Firefox app developers decided to boycott Firefox projects until Eich is removed from his position. Twitter has been, well, atwitter with criticism.

Then, earlier this week, the dating site OkCupid rerouted all of its users accessing its site from a Firefox browser to a message that began, “Hello there, Mozilla Firefox user. Pardon this interruption of your OkCupid experience. Mozilla’s new CEO, Brendan Eich, is an opponent of equal rights for gay couples. We would therefore prefer that our users not use Mozilla software to access OkCupid.” The message goes on to read, “Equality for gay relationships is personally important to many of us here at OkCupid. But it’s professionally important to the entire company. OkCupid is for creating love. Those who seek to deny love and instead enforce misery, shame, and frustration are our enemies, and we wish them nothing but failure.”

OkCupid’s arrow struck deep. What Eich now faces raises questions about political expression and association, laws requiring disclosure of political contributions, and the consequences of both….

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Kamala Harris

* The Poly Prep alumni who settled their sex abuse suit against the school are going after O’Melveny & Myers for allegedly playing a part in prolonging the litigation by doing what lawyers do best: lying. [Am Law Daily]

* If you’ve got a case up on appeal and you’re like a virgin, giving oral (arguments) for the very first time, then you should probably consider taking a look at the top 10 tips that’ll help you to prepare for it. [The Recorder]

* The California Supreme Court denied petitions from Proposition 8 proponents seeking to enforce a ban on same-sex marriage across the state. Kamala Harris, the country’s best looking AG, approves. [BuzzFeed]

* The Chapman School of Law will change its name after receiving the second-largest donation ever made to a law school. N.B. The donor isn’t a law school graduate, which certainly explains why he has cash to spare. [National Law Journal]

* Notebooks from the most famous law school you’ve never heard of are now on digital display thanks to Harvard Law. Unlike today’s students, Litchfield lawyers had lovely handwriting. [Brainiac / Boston Globe]

* Keep ya head up: Legendary lawyer Roger Rosen, whose clients range from O.J. Simpson to Phil Spector, will hang up his shingle to avoid prosecution for leaking info to Tupac’s killers. [New York Post]

* Just think, if the judge in Paula Deen’s case had permitted counsel to stay discovery, perhaps the celebrity chef wouldn’t have been able to serve up a slice of her piping hot racism casserole. [Daily Report]

* Sure, Lamar Odom allegedly cheated on Khloe Kardashian with a lawyer, but that doesn’t mean they’re going to get divorced. If they do, we’ll be there for the train wreck. [Ministry of Gossip / Los Angeles Times]

Last month, the U.S. Supreme Court issued two eagerly anticipated rulings in major gay marriage cases. In United States v. Windsor, the challenge to the Defense of Marriage Act, the Court struck down Section 3 of DOMA. In Hollingsworth v. Perry, the challenge to California’s Proposition 8 ban on gay marriage, the Court held that the petitioners lacked standing to appeal, vacated the decision of the Ninth Circuit, and remanded with instructions to dismiss the appeal for lack of jurisdiction. This left the district court’s ruling intact and had the effect of allowing same-sex marriages to take place in California (although there’s some litigation winding its way through the courts on this matter).

Now that we have the decisions, let’s take a deeper dive into them. What do they reflect about the Court’s role in society? And what can we expect from future SCOTUS rulings in this area?

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George Zimmerman: Not Guilty

* Size matters when it comes to hourly rates. Because when you work in Biglaw, it’ll be all the more odious for your poor clients when you “churn that bill, baby.” [Corporate Counsel]

* Would you want this Cadwalader cad, a former mailroom supervisor, at your “erotic disposal”? The object of his affections didn’t want him either, and she’s suing. [New York Daily News]

* In the wake of the George Zimmerman verdict, the NAACP is pressing for federal charges and a civil suit may be in the works. This trial isn’t over in the court of public opinion. [Bloomberg]

* This experience inspired George Zimmerman, fresh off his acquittal, to go to law school to help the wrongfully accused. If it makes you feel better, when he graduates, he’ll be unemployed. [Reuters]

* Here’s the lesson learned by Prop 8 proponents: If at first you don’t succeed at the Supreme Court, try, try again at the state level and base your arguments on technicalities. [Los Angeles Times]

* You do not want this patent troll — one of the most notorious in the country — to “go thug” on you. Apparently this is just another danger of alleged infringement in the modern world. [New York Times]

* Asiana Airlines is considering suing the NTSB and a California television station over the airing of “inaccurate and offensive” information (read: wildly racist) about the pilots of Flight 214. [CNN]

* Ariel Castro was slapped with an additional 648 counts in the kidnapping case against him, bringing the total to 977. Prosecutors are not yet seeking the death penalty. [Cleveland Plain Dealer]

* Who is the real John Roberts? Will he forever be known as health care reform’s savior, or the man who disregarded precedent to gut minority voting rights? Hell if we know, so we’ll let you be the judge. [Opinionator / New York Times]

* The man may be a mystery, but one thing’s for sure when it comes to Chief Justice Roberts: it’s fair to say that at this point, he’d sincerely appreciate it if his colleagues would kindly STFU during oral argument. [Big Story / Associated Press]

* Elena Kagan, a justice who was never a judge, is now being praised for her ability to put the law into terms that non-lawyers can understand. That’s a score for law professors everywhere. [New York Times]

* In terms of the Voting Rights Act, while the chances of the current Congress enacting a universal voting law are approximately nil, there are other effective avenues that could be taken. [New York Times]

* On Friday, the Ninth Circuit lifted the stay on gay marriages in California, and less than 24 hours later, Prop 8 supporters filed an emergency motion with SCOTUS to stop all of the weddings. Lovely. [NPR]

* Meanwhile, ex-judge Vaughn Walker thinks Justice Scalia’s having joined the high court’s majority on standing telegraphed the fact that he didn’t have votes to uphold Prop 8 as constitutional. [NPR]

* Rubber stamp this: Judges on the Foreign Intelligence Surveillance Court are so upset that they’re being made out as government patsies that they’re talking to the press about it. [Washington Post]

* Whether you think Chevron is “suing [Patton Boggs] lawyers for litigating” or for promoting fraud that “shocks the conscience,” here’s a summary of what’s going on in an epic case. [Washington Post]

* Got a high-profile criminal defense firm? Look out, because you may have captured Biglaw’s eye. Take, for example, Stillman & Friedman, which will be merging with Ballard Spahr. [New York Times]

* Apparently being in your mid-50s is a “good time to [retire]” for law deans who pull in six figures. Ken Randall, outgoing dean of Alabama Law, says he’s “really ready for the next challenge.” [AL.com]

* Do you think Chief Justice Roberts is the Supreme Court’s “peacemaker”? To be fair, at least he does a better job of tempering all of his judicial rage than his colleagues. [Politico]

* According to Prof. John Eastman of Chapman Law, the SCOTUS decision striking down DOMA means Prop 8 is good law in California. Try and wrap your mind around that one. [OC Weekly]

* The Senate approved a bipartisan immigration reform plan with a 68-32 vote, and now it’s up to House representatives to take the bill and summarily wipe their asses with it. [Wall Street Journal (sub. req.)]

* The good folks at Hobby Lobby quilted for hours yesterday to celebrate the Tenth Circuit’s reversal of a lower court’s denial of an injunction blocking the ACA’s contraceptives mandate. [The Oklahoman]

* Texas A&M still hopes to acquire Texas Weslyan’s law school; they’re just waiting for the ABA to look over the paperwork. Welcome, Texas A&M Law, since the takeover will obviously be approved. [WTAW]

* Boston bombing suspect Dzhokhar Tsarnaev has been indicted on 30 counts of violence and weapons-related charges. Right now, he’s looking at a possibility of life in prison or the death penalty. [CNN]

Kamala D. Harris

Same-sex marriages can legally resume in California as soon as the Ninth Circuit Court of Appeals lifts its stay on the District Court Ruling. I ask that the Ninth Circuit lift this stay immediately, because gay and lesbian couples in California have waited long enough for their full civil rights.

– California Attorney General Kamala Harris, calling upon the Ninth Circuit to act sua sponte prior to receiving a mandate from the U.S. Supreme Court, which could take 25 days or more to occur.

(For additional thoughts on the future of gay marriage in California post-Perry, see Marty Lederman and Howard Wasserman.)

The Supreme Court’s decision in Windsor got the attention of the day yesterday, if not the attention of the Term, even if it doesn’t instantaneously make same-sex marriage the law of the land. Shelby County’s Voting Rights Act ruling was historic, but not as historic as it might have been. Section 4’s formula was struck down, but with Section 5 still in place, Congress has an opportunity to redraft an alternative. Fisher’s remand was no mighty victory for either side of the affirmative action debate. It emphasized that strict scrutiny review demands that UT get less deference than the Fifth Circuit panel gave the school. But we really know that this week’s opinion just kicks the can down the road, teeing up next Term’s Schuette v. Coalition to Defend Affirmative Action.

In important ways, Shelby County and Fisher, and in slightly different ways Windsor, keep us talking. Talking about hard issues, but talking. That’s part of the tough stuff of democracy. But SCOTUS’s decision in the California Proposition 8 case, Hollingsworth v. Perry, shuts down democratic dialogue in a way that should make all of us wince. I would rather listen to a thousand screaming Mystals argue about affirmative action through the end of OT 2013 than live with the consequences of this week’s decision in Hollingsworth . . . .

double red triangle arrows Continue reading “What’s Horrible About Hollingsworth Is Horrible for Us All”

Driving to court this morning for a pro bono appearance, my Blackberry buzzed with the headline that DOMA had been struck down. Concurrently, the song “Fight the Good Fight” was playing on the radio. Indeed.

In France, there were violent protests in the streets when the issue was up for a vote. Here, some folks give a shrug and a “meh” to today’s news. Later, when the Court effectively struck down Prop 8, people in California began pilgrimages to their local courthouses or civic centers to look into getting married. It is indeed a great day to be an American….

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The front of the Supreme Court building: ‘Equal Justice Under Law.’ (Click to enlarge.)

The Supreme Court was called to order at 10:00 a.m. sharp. The Chief Justice announced, “Justice Kennedy has our first opinion of the day in case number 12-307, United States v. Windsor. Everyone, in the bar members section at least, knew that this was the Defense of Marriage Act case.

That Justice Kennedy was announcing the opinion was significant; he wrote Lawrence v. Texas. Still, no one knew if the Court would reach the merits, since the Solicitor General had announced that the Executive Branch would not defend the constitutionality of DOMA.

Justice Kennedy is an orderly man. He set out the procedural background – Edith Windsor and Thea Spyer were married legally in Canada, then came home to New York. Their same-sex marriage is lawful where it was performed and where they lived. Spyer died and left her estate to Windsor. Windsor sought to claim an estate tax exemption for the death of a spouse. DOMA prevented the IRS from recognizing Spyer as Windsor’s spouse. Windsor paid the tax, then challenged DOMA. She won in the district court and the Second Circuit. Justice Kennedy explained how a bipartisan committee found counsel to defend DOMA, and how DOMA was defended ably in the Supreme Court.

(As an aside, Paul Clement took heat for defending DOMA for Congress. When you think about it, if he hadn’t defended it well, the Supreme Court may not have thought it could reach the issue. Paul Clement may be the unsung hero of the DOMA decision.)

So, Kennedy concluded, the Court could reach the merits of whether DOMA is constitutional.

Though a hopeful sign for those who would cheer the demise of DOMA, the decision wasn’t entirely clear….

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