Prop. 8: Some further Thoughts on Equality by Civil Union; Leave Marriage to Religion
In an essay published Friday in the San Francisco Chronicle, I proposed that the way to settle the Prop.8 lawsuit was for California to withdraw from the marriage business, substituting civil unions prospectively for gay and straight alike. The commentary has received many favorable comments, but also several people have posed a number of practical difficulties. In an effort to answer them, here are just a couple of additional comments to consider:
1. The Governor has an obligation to ensure that the laws of the state are evenhandedly applied; in light of the California Supreme Court holding that sexual orientation is a suspect class, that obligation arguably includes construing the California family code, including any undefined term such as "spouse" in the Registered Domestic Partner (RDP) statute as well as any of the other general family code provisions articulating the importance or significance of the family in a way that does not differentiate on the basis of sexual orientation;
2. It is well settled in the case precedent of the federal and state courts that equality can be ensured by either granting a new right to the deprived class or withdrawing an existing one from a favored one. Thus, equality can be provided either by extending marriage to same-sex couples (this path is, of course, blocked by proposition 8, itself) or withdrawing, prospectively, from "marriage" licensing altogether;
3. Even if the Governor took the most conservative view of his administrative, regulatory authority and found the existing family code insufficient to issue such regulations, at a minimum, the Governor could propose the "civil union for all" idea as a remedial option for the California court to consider through the Attorney General who is required to give his views in briefing; the remedial power of the court to construe existing code provisions is arguably more expansive than the Governor's administrative authority alone; you'll remember that both the Vermont and Massachusetts courts gave the legislature a period of time in which to enact appropriate legislation to bring their respective states into compliance with the equal protection holdings in favor of same-sex couples in those states;
4. Y es, it's true, state civil unions would not confer any federal marriage rights so long as the Defense of Marriage Act (DOMA) was in place; but a California marriage license issued to a same-sex couples would have been equally ineffective to convey federal rights; if federal rights are to be provided, DOMA will need to be modified or repealed;
5. T he establishment clause problem is capable of being addressed in the drafting of either administrative regulation or legislation; specifically, regulation and then any confirmatory or validating legislation would provide that going forward civil union status within the state of California substitutes for the past practice of marital licensing issued under the family code;
6. What then is the value of a religiously granted marriage license? the marriage bond and any certificate issued by religious organizations governs status only within the church community; it would have no operative effect in the state or federal secular systems; yet, most people of faith view the preservation of religious freedom to be the heart of the matter. In short, for those of us who believe that marriage is a status authored by God Himself, this is not insignificant even as it has no temporal effect on medicare or other benefits; importantly, separating state granted civil union from religiously granted marriage does avoid the encroachment by the state on private religious belief that was occasioned by the California Supreme Court decision without proposition 8; so too, the proposed separation of function also avoids the imposition of religious belief upon nonbelievers that is implicit in the passage of proposition 8.
Again, thank you for the many thoughtful comments on the civil union compromise. Hopefully, these additional thoughts suggest that the proposal earlier outlined is more tenable than perhaps first thought. In any event, by both these thoughts and those offered initially, I hope do convey the importance of demonstrating respect for the dignity of all Californians and the continuing importance of observing religious freedom in ways that proposition 8 did not successfully address.
Convictions on Sabbatical
Over the past four months, Convictions has reached hundreds of thousands of readers and contributed a great deal to America's legal conversation. However, we have decided to take a sabbatical. Instead of running Convictions as a continuous blog, we'll call on our excellent roster of contributors when news breaks, and run their exchanges as a multi-part conversation, as we do Dahlia Lithwick and Walter Dellinger's Supreme Court conversation at the end of term.
In addition, I will be taking a leave of absence from
to serve as the Obama campaign's national
director. I've been grateful for this opportunity to work with such brilliant and engaging contributors, editors and staff, and look forward to rejoining
after the election.
Thank you for all of your readership, participation, comments and e-mails over the past four months.
Executive (Over)Privileged -- Must the Abuse Continue?
Today on Findlaw, I explore the problematic misuse of executive privilege in the Bush administration.
That misuse continued late last week when former White House Chief of Staff Karl Rove refuse to honor the subpoena of a House subcommittee looking into whether or not wrongful pressure was brought upon US attorneys in the prosecution of a former Democratic governor of Arkansas. The subcommittee had subpoenaed Rove in May to explore what, if any role, he played in the prosecution of former Alabama Governor Don Siegelman or in the unexplained dismissal of US Attorneys. In spurning the subpoena, Rove indicated that he was following the instruction of the White House not to appear before the committee on the grounds that this would interfere with the president's internal communications. The full committee and ultimately the full House must now decide whether to hold Mr. Rove in contempt.
Late last month, in a related inquiry being litigated in the District Court in Washington, D.C., Judge John D. Bates heard vigorous argument from the Bush White House in defense of its refusal to supply documents to Congress or to allow the Congressional testimony of former White House Counsel Harriet Miers and Chief of Staff Joshua Bolten regarding the controversial dismissal of a series of U.S. Attorneys. Here too, Congress is investigating based on suspicion that the dismissals were politically-motivated; and, as in the case of Mr. Rove, the Bush Administration has blocked its inquiry by asserting executive privilege.
It is smugly assumed by the Bush administration that the awkwardness and difficulty of resolving an inter-branch dispute over executive privilege will mean that the case will linger past the national election and next January when the matter can be declared moot. The rule of law deserves better.
Judge Bates who has charge of the Miers/Bolten matter should put the burden on The White House to establish -- as a matter of original understanding -- the constitutional basis for the privilege beyond national security and the protection from outside interference of an on-going federal prosecution. The historical compilation of privilege claims was undertaken some years ago in the Office of Legal Counsel by the venerable Herman Marcuse whose service in OLC goes clear back to Humphrey's Executor if not before. Marcuse found what Archibald Cox found:
"Over a period of a century and a half thirteen Presidents found a total of twenty occasions on which to refuse to turn over information demanded by an arm of Congress. . . .If one looks at what was done and confines the words to the events, nothing appears which even approaches a solid historical practice of recognizing claims of executive privilege based upon an undifferentiated need for preserving the secrecy of internal communications within the Executive Branch."
Allowing Rove, Miers and Bolten to stiff arm Congress in the present matter where the heart of the inquiry is prosecutorial abuse, itself, stands the purpose of the privilege on its head.
If the court turns away the Administration's overly-broad claim of executive privilege here, it jeopardizes no national security interest or ongoing investigation. The question presented is simply whether existing laws are adequate to avert the apparent or actual politicization of major charging and subsidiary prosecutorial judgments by the mid-term dismissals of U.S. Attorneys and to ensure going forward that the dismissal of presidential appointees is not fobbed off on unaccountable staff assistants. In the present matter, neither the President nor the then-Attorney General claimed to have supervised the dismissals closely or at all. Perhaps the administration wishes to argue that is "merely" near-impeachable maladministration, but alternatively, it could well be a systemic failure of the law. Either way, the Congress has a fully legitimate legislative interest.
Finally, even if Judge Bates is reluctant to re-examine the scope of executive privilege, there is a simple and well-established principle that should foreclose a successful privilege claim: the dismissals represent past, not ongoing, decision-making. The late Attorney General William French Smith reflected that legislative oversight "can almost always be properly conducted with reference to information concerning decisions which the Executive Branch has already reached."
Indeed, the historic defender of the presidential office, the Office of Legal Counsel, has written that "[t]he courts have held that the 'deliberative process' privilege does not protect documents which reflect final opinions, statements of reasons supplying the bases for decisions, or policies actually adopted, or documents that otherwise constitute the 'working law' of the agency."
For these reasons, the subpoenas for Rove's, Miers's and Bolten's testimony, as well as for relevant documents, should be enforced. Better yet, the President should take the high ground and send his one-time aides to the Hill with their relevant papers without compulsory process. Doing so would affirm that cooperating with legislative objectives can be, in the American Republic, another way to defend and enhance the body politic's respect for the office of the Presidency.
And on an unrelated -- but grateful (yet bittersweet) -- note, so long to Convictions as we have known it. The short experiment into the blog world has been fun. I look forward to participating in the new format, and this now blog-homeless-writer welcomes offers of blog-shelter from those who may have interest in the honest application of conservative principles to, well, even conservatives.
Tony Snow and Tim Russert Together Again
Tony Snow was a kind man who enjoyed sparring with his former colleagues in the press.
As well deserved as most of the criticism of the Bush administration has been - on Iraq, on the economy, on the environment, on just about everything except Roberts and Alito -- that criticism also at times exceeds the boundaries of taste or fact. With an ever charitable smile and an offer of friendliness, if not friendship, always behind his eyes, Tony could convey, "I know you can't really mean that" without parallel in the journalistic craft.
Tony saved the Bush presidency from descending into negative approval numbers. [Read here Tony interjecting from eternity: "I know you can't really mean that."]. His two predecessors -- Ari Fleischer and Scott McClellan and his successor - Dana Perino - each possess individual strengths (respectively: intelligence; awkwardness inviting sympathy; attractive unflappability), but all of them read the job description as including defending the Bush indefensible.
Tony didn't -- well, at least not entirely. As the colloquy between Katie Couric and the late Tim Russert (below) on the day of Tony's appointment records, Tony became press secretary to one of the most unpopular presidents in our history in essence "with tenure," by having been honest in past assessment of the administration. While Tony was not given to the negative in either personal or professional life - as manifest in his own cheerfully placed thumb in cancer's relentlessly cancerous pursuit of his vitality - he had the gift of knowing the truth and not being defeated by it. It was as if he was borrowing for his boss the forgiveness of the wrongly accused character in a Tolstoy folktale. Yes, Tony, "God (does) know the truth, but waits."
Tim Russert, welcome your friend Tony home today. You now have a pal to watch the conventions with. God always provides.
Requiescat in Pace.
From the NBC Today Show of April 27, 2006:
Couric: "Let's move on to Snow in April. Tony Snow named new White House Press Secretary. As Kelly mentioned he's been critical of the White House. He has said, called the President quote, 'Something of an embarrasment,' who has quote, 'lost control of the federal budget,' and is the architect of a quote, 'listless domestic policy.' Were you surprised at, at this choice?"
Russert: "Not at all Katie. They had been talking to Tony Snow for about a week or so. He is a polished, articulate, conservative commentator. He is someone that the President wants out front before the American people every morning, every night articulating and making the President's case. His personality is such that he's a pleasant man. They believe that Tony Snow can connect with the American people and help put a positive gloss on the Bush administration policies. That's why he was picked."
The Imperial Presidency Lives!
I want to add a small addendum to your post . There is a big difference between the president asking for a power and Congress granting it to him, and the president claiming a power for himself and Congress acquiescing. Critics of the Bush administration argue that Bush shot himself in the foot by failing, in the immediate aftermath of 9/11, to ask Congress for powers that it would have been happy enough to give him. Bush (or Cheney or Addington or whoever) supposedly refused to take this step because he (or they) didn't just want to obtain additional powers for counterterrorism activity; they also wanted to establish a precedent that the executive had the inherent or constitutional power to engage in these activities, at least in wartime, without congressional authorization. This would give the executive the power and flexibility it would need to address future threats, including and especially those not foreseen by Congress and hence not anticipated in existing law, and help restore the imperial presidency that was lost after Watergate.
The recent FISA amendment bill vindicates this strategy. Henceforth, presidents who contemplate law-breaking for national security purposes will look back to the Bush administration and see that the president got away with these activities, and indeed received the blessing of Congress-even in the most unpropitious political atmosphere imaginable. Private actors such as telephone companies will also in future look to this precedent, when they weigh the risks of defying the president versus the risks of defying Congress.
To be sure, Congress does not explicitly acknowledge the president's small-c constitutional new powers, and Congress tries to anticipate this behavior by providing in the new bill that the FISA procedure will be the "exclusive" means for surveillance. However, this is akin to stating that a precedent is not a precedent. Looking forward, presidents and private actors should anticipate the following, if they again break the surveillance law. (1) A great deal of political noise. (2) A bill that implicitly excuses them for what they have done. (3) And, in that same bill, a provision that further tells them not to do it again. I think they can live with that.
The critics, careful lawyers that they are, understood that Bush would have a stronger legal case for his counterterrorism policies if they had congressional imprimatur. But the critics simply did not share his other goal-which was to strengthen presidential power, which requires the president to defy Congress and then face it down. This, Bush has done. And it may be his most important legacy-a grand success for Cheney, Addington, Yoo, and the other presidential-power supporters in the administration.
Arlen Specter: "Read the Constitution? That's a court's job, not a Senator's"
This week's passage and enactment of the FISA amendments ( H.R. 6304 ) was not without controversy (obviously), but I was particularly struck by an aspect of the story that's received remarkably little attention: Sen. Arlen Specter sponsored an amendment ( S.Amdt.5059 ) to the particularly controversial grant of immunity to telecoms that had worked with NSA; under his amendment, such immunity would have been contingent upon a court's determination that the telecom's activities were "provided in connection with an intelligence activity that violated the Constitution of the United States."
What a spectacle: a United States Senator -- a former prosecutor and the senior Republican on the S e nate Judiciary Committee, no less! -- effectively declared himself to be incapable of determining what the Constitution does and does not proscribe. (Of course, Senator Specter was not alone: 37 senators voted for his ill-conceived amendment .)
Specter's attempt to pass the buck on this constitutional question should disturb both proponents and critics of the NSA surveillance activities at issue. That said, and as I've noted previously , Senator Specter's approach to the issue of the constitutionality of NSA surveillance activities is but one example of his tendency to (1) punt controversial issues to the courts, yet (2) loudly chastise the courts for "denigrat[ing] ... congressional authority" when the politics winds suit the change in approach.
The New FISA Law and the Construction of the National Surveillance State
We have been covering the features of the new FISA act over at Balkinization ( here , here , here , and here ), and I won't repeat that analysis here. I continue to think that the new procedures in Title I are far more worrisome than Title II, the immunity for telecom companies. But in this post Iwant to say a few words about the larger meaning of what has happened.
War Powers Consultation Act
Suppose you think that Congress should have more say over war-making, as James Baker, William Christopher, and their bipartisan commission do , and the president less. Would your new War Powers Consultation Act do this?
Our proposed statute would provide that the president must consult with Congress before ordering a "significant armed conflict" - defined as combat operations that last or are expected to last more than a week. To provide more clarity than the 1973 War Powers Resolution, our statute also defines what types of hostilities would not be considered significant armed conflicts - for example, training exercises, covert operations or missions to protect and rescue Americans abroad. If secrecy or other circumstances precluded prior consultation, then consultation - not just notification - would need to be undertaken within three days.
To guarantee that the president consults with a cross section of Congress, the act would create a joint Congressional committee made up of the leaders of the House and the Senate as well as the chairmen and ranking members of key committees. These are the members of Congress with whom the president would need to personally consult. Almost as important, the act would establish a permanent, bipartisan staff with access to all relevant intelligence and national-security information.
Congress would have obligations, too. Unless it declared war or otherwise expressly authorized a conflict, it would have to vote within 30 days on a resolution of approval. If the resolution of approval was defeated in either House, any member of Congress could propose a resolution of disapproval. Such a resolution would have the force of law, however, only if it were passed by both houses and signed by the president or the president's veto were overridden. If the resolution of disapproval did not survive the president's veto, Congress could express its opposition by, for example, using its internal rules to block future spending on the conflict.
It won't work, even in the unlikely event that a president would sign this bill, or Congress overrode a veto. Presidents won't consult; they'll inform, as they always have. If Congress, or members of Congress, try to persuade a court to compel the president to consult, the court will refuse, as courts always have, in such interbranch spats. If a member of Congress proposes a resolution of disapproval, it won't obtain the 2/3 vote necessary to overcome the president's inevitable veto, and even if it does, the president will ignore the resolution, as presidents always have. Congress could express its opposition by blocking future spending, but Congress has always had this option, and almost never used it. As for the permanent committee, the problem has never been that the president doesn't know whom to consult; it's that his judgment and Congress's is different, and Congress has no politically viable tools for preventing the president from taking us to war.
The War Powers Resolution, which this new bill is to supplant, didn't fail because it was unconstitutional. It failed because, over the years, the president has obtained the power to make war. That won't change until the public decides that it won't allow one person to have this power. Only a disaster would cause the public to make such a decision. Is Iraq such a disaster? No; Congress authorized that war, so even if the War Powers Consultation Act had been on the books when that war began, it wouldn't have made a bit of difference.
UPDATE: see Timothy Noah's discussion here . Noah says that Congress wouldn't take the power even if given to it. Maybe that's true, or often true, but there have been some cases -- Clinton's use of force in Kosovo comes to mind -- where Congress stepped to the plate, bravely made its disapproval known on the record for all to see, and -- was ignored.
Janice Rogers Brown Is Experienced
As Dahlia noted a couple of weeks ago , Chief Justice Roberts used his dissent in Sprint v. APCC [pdf] as an occasion to quote (or, perhaps, misquote ) Bob Dylan. As Alex Long previously explained , however, quoting Bob Dylan in a judicial opinion is hardly novel: Dylan's lyrics have been invoked in dozens of legal opinions and articles.
D.C. Circuit Judge Janice Rogers Brown has taken this trend to a whole new level: Today she opened the court's opinion in K&R Limited Partnership v. Massachusetts Housing Finance Agency [pdf] with a line from ... Jimi Hendrix :
Forty years ago Jimi Hendrix trilled his plaintive query: "Is this love, baby, or is it … [just] confusion?" JIMI HENDRIX, Love or Confusion , on ARE YOU EXPERIENCED (Reprise Records 1967). In this False Claims Act case, we face a similar question involving a mortgage subsidy program initiated in that era: Is this fraud, or is it … just confusion?
I find it hard to believe that any other judge, boomer or otherwise, will be able to top this. So let's hope that good folks of the federal and state benches all have the good sense to stop trying, before this gets out of hand.
Do we really want to head down a road where, forty years from now, we'll see today's music showing up in opinions? Will judges someday quote New Found Glory in tort suits ("slightly bruised and broken from our head on collision")? Maybe a future judge (appointed by President Obama , no doubt) will employ Jay-Z's " 99 Problems " to help define to contours of permissible car searches under the Fourth Amendment.
Thanks, but no thanks. In the words of Waylon Jennings , let's hope that "this time will be the last time."