State & Local Governments Must Honor Right to Keep & Bear Arms, Supreme Court Holds

“When I'm with a pistol/I sparkle like a crystal”


The U.S. Supreme Court today held in MacDonald v. City of Chicago, by a five-to-four vote, that the Fourteenth Amendment “incorporates” the Second Amendment right to keep and bear arms for the purposes of self-defense, so that state and local governments are bound by it.  (The full set of opinions is here.)  Two years ago the Court held in District of Columbia v. Heller that the Second Amendment conferred an individual right good against the federal government in a case that invalidated DC’s ban on handguns.  Now, the case against Chicago’s handgun ban will be remanded back to the lower courts, which almost certainly will hold the city’s law unconstitutional, and more litigation challenging to state and local gun control laws across the country, now with some success, may be expected in the wake of today’s decision.

The majority opinion was written by Justice Samuel Alito and joined at least in parts by the other “conservative” Justices: Chief Justice John Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, and (concurring only in parts of Alito’s opinion) Clarence Thomas.  These Justices believed that the right to keep and use handguns for self-defense is “deeply rooted in this Nation’s history and traditions” and that the framers and ratifiers of the Fourteenth Amendment (which applies to state and local governments, unlike the Second Amendment, which applies only to the federal government) considered the right to keep and bear arms fundamental.


The majority's decision was unsurprising.  Justice Scalia’s majority opinion in Heller had included much history that postdated the adoption of the Bill of Rights.  That history might have been relevant to show whether a right to keep and bear arms was deeply rooted in U.S. legal history and traditions, but it was on Scalia’s usual interpretive views irrelevant to what the framers of the Second Amendment meant when they adopted that provision, since that history came later.  Heller thus was clearly setting up today’s decision in MacDonald.

The majority and Justice Thomas disagreed about what provision in the Fourteenth Amendment protects the right to keep and bear arms.  The majority would follow much precedent and hold that it is the Due Process Clause (“nor shall any State deprive any person of life, liberty, or property, without due process of law”), whereas Justice Thomas would rely on the Privileges or Immunities Clause of that Amendment (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”).  This disagreement will not clearly have consequences for the types of laws that will be upheld or invalidated due to this right to keep and bear arms for self-defense.

Like Heller, though, MacDonald has left unanswered the question of what sorts of firearms regulations will violate the announced right to keep and bear arms for self-defense and what sorts of regulations will be permissible.  Although both cases rejected free-form “interest balancing,” neither specified a particular judicial test to govern future cases (or even the law challenged in MacDonald itself).  MacDonald repeated Heller’s reassurance that “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” would remain constitutional.  But like Heller, MacDonald has provided no reasoning for these reassurances, and no doctrinal test that they would satisfy that should generally be applied by courts considering challenges to gun control laws.

Justice Stevens dissented in MacDonald.  He agreed with Justice Alito’s conclusion that there is no cognizable right here under the Privileges or Immunities Clause, and the question thus is one of the substantive protection of liberty offered by the Due Process Clause.  More generally, Stevens advocated a broad judicial role in interpreting vague, general, or “open texture[d]” constitutional language such that in as the Due Process Clause.  This is an approach targeted at some length by Justice Scalia in his separate concurring opinion.  Ultimately though, a quick glance through Stevens’s opinion suggests, he views guns as conceptually distinct from self-defense, and as deadly, hence different from other rights protected by the Court under the Due Process Clause; he sees that governments in the U.S. have by and large extended much protection for firearms possession and use (and thus little need for judicial intervention; and he would rule in favor of Chicago here.

Finally, Justice Breyer wrote a dissenting opinion joined by Justices Ginsburg and Sotomayor.  These Justices agreed with Justice Stevens’s due process analysis.  They focused on the Court majority’s conclusion that the Fourteenth Amendment “incorporates,” or makes applicable to state and local governments, the Second Amendment.  Justice Breyer’s opinion revisited and further criticized the Heller majority's historical claims.  And it analyzed the claimed right by reference also to “the nature of the right; any contemporary disagreement about whether the right is fundamental; the extent to which incorporation will advance or hinder the Constitution’s structural aims, including its division of powers among different governmental institutions (and the people as well).”  Taking into further account the courts’ role as independent protectors of unpopular minorities, these dissenting Justices also agreed that Chicago's law should be upheld.

Supreme Court Upholds Disclosure of Washington State Petitions That Challenged Domestic Partnerships

“Let the sunshine, let the sunshine in”


The Supreme Court of the United States today decided Doe v. Reed, rejecting by an 8-1 vote a facial challenge to a Washington state law treating referendum petitions with signatory information as public records available for inspection and copying. The anonymous challengers did not want disclosed the signers of a petition that unsuccessfully attempted to overturn improvements to Washington’s domestic partnership law. The Court held that they will have a chance when the case returns to the trial court to argue that as applied to Referendum 71 (R-71), Washington’s disclosure requirement violates the First Amendment. But it is not clear that the challengers will be able to succeed.

Chief Justice John Roberts wrote the majority opinion, which held that signing such petitions was activity protected by the First Amendment that therefore could be regulated by states only if they have “a sufficiently important governmental interest.” Here, the Court accepted Washington’s interest in protecting the integrity of elections as adequate to make the disclosure requirement generally constitutional as to referendum petitions. The Court remanded the case to the trial court, however, so that the plaintiffs could try to establish their other First Amendment argument: that the signers of R-71 should not be disclosed because they would be subjected to harassment (now, even though the election has passed and the repeal effort was voted down).

Justice Clarence Thomas dissented from the Court’s decision to uphold the petition disclosure requirement on its face and can be counted on to hold it unconstitutional as applied to R-71. Justice Sam Alito joined the majority opinion but wrote separately to urge that the challengers should have a very light burden of proof to establish a likelihood that disclosure would subject them to harassment, so he too would likely vote for the challengers if the case returns.

However, Justice Antonin Scalia, who did not join the majority opinion but agreed that the disclosure requirement was constitutional on its face, did not think that the First Amendment offers any secrecy protection for legislative acts. Governance by initiatives and referenda is as much lawmaking as is governance by legislatures passing bills, and in Justice Scalia’s plausible view no one is constitutionally entitled to engage in these actions in secret. Therefore, he has made clear that he would not vote to hold Washington’s disclosure requirement unconstitutional.

In addition, Justice Sonia Sotomayor, who did join the majority opinion, wrote a separate concurrence joined by Justices John Paul Stevens and Ruth Bader Ginsburg, who did not join the majority, making clear their disagreement with Justice Alito. In their view, those seeking to challenge disclosure of petitions would have a heavy burden under the First Amendment, and would have to show threats of harassment as serious as those faced by the NAACP in the Jim Crow South. Justice Stephen Breyer also filed a concurring opinion, and joined another concurring opinion by Justice Stevens, making clear that they too believed that the challengers would not have an easy burden at trial.

So, a majority of the Court (Justices Stevens, Scalia, Ginsburg, Breyer, and Sotomayor) all either doubt or deny that the challengers will succeed in arguing that disclosure of the R-71 petitions would violate the First Amendment. Given the paucity of actual evidence of constitutionally unprotected reprisals in the Referendum 71 campaign (see the excellent amicus brief by Lambda Legal, GLAD, NCLR, HRC, and the NLGTF amplyifying this point), this is as it should be.

Prop 8 Proponents Seek to Vitiate Marriages of Same-Sex Couples

“I'm holding on with both hands and both feet, oh/Promise that you won't pull the rug out from under me”


With closing arguments today in the lawsuit challenging California’s Proposition 8, the attorneys on both sides have filed answers to a series of questions posed by Chief Judge Vaughn Walker of the United States District Court for the Northern District of California. And in a bit of shameless overreaching, the attorneys for Prop 8’s official sponsors (the “defendant-intervenors” in the litigation) are seeking to overturn the estimated 18,000 marriages entered into by same-sex couples before Prop 8 was adopted.

After California’s voters approved Prop 8 in November 2008, it was challenged on state law grounds. In May 2009, the Supreme Court of California rejected those arguments, acting over Associate Justice Carlos Moreno’s cogent dissent. The Court was unanimous, however, in holding that Prop 8 had no effect on marriages entered into before it was adopted. Because that question of the meaning of state law was completely within the control of the California high court, there was no basis in law for Prop 8’s sponsors to ask the U.S. Supreme Court to review that conclusion.

Now, however, the attorneys for Prop 8’s sponsors are seeking to do an end run around that binding holding under the guise of legal remedies. One question Judge Walker had posed was: “If the court finds Proposition 8 to be unconstitutional, what remedy would ‘yield to the constitutional expression of the people of California’s will’?” The answer given by the defendant-intervenors’ attorneys? “[S]ustain Proposition 8 by giving it retrospective effect or invalidating the conflicting feature of California law.”

Translation: If Judge Walker thinks it unconstitutional for California to recognize marriages of some same-sex couples but not others depending on the date when they got married, Prop 8’s sponsors say Walker should order California to deny ALL same-sex couples’ marriages. Even though the federal courts don’t have the power here to tell the state supreme court that it is wrong about what state law (Prop 8) means.

Technically, the defendant-intervenors’ attorneys say they’re not actually asking Judge Walker to invalidate these 18,000 marriages, the San Francisco Chronicle reports, “but only to rule that government agencies, courts and businesses no longer have to recognize the couples as married.” So, in their view, these legal marriages should be legally inoperative in California.

Prop 8’s sponsors lost the fight to extend Prop 8 to existing marriages in 2009. They will almost certainly lose their outrageous effort to relitigate the meaning of Prop 8 this time.


-David B. Cruz

DC allows same-sex couples to marry

"vow to be strong and let the band roll on"

As noted in a Washington Post editorial, the District of Columbia today (March 3, 2010) becomes the first southern jurisdiction in the U.S. to issue marriage licenses to same-sex couples. With this important legal change in the nation's capital, the South just became a little more beautiful!

Supreme Court Strikes Down Corporate Campaign Expenditures Limit

"Money makes the world go 'round"

In a special session, the U.S. Supreme Court today in a 5-to-4 First Amendment decision (Citizens United v. Federal Election Commission, official opinions here) invalidated key parts of the Bipartisan Campaign Reform Act of 2002 (BCRA or the McCain-Feingold Act) and overruled a twenty year old precedent about corporations' speech rights. I'll almost certainly have more to say after wading through the 183 pages of opinions, especially Justice Stevens's dissent joined by Justices Ginsburg, Breyer, and Sotomayor. For now, for-profit corporations and reunions are probably already planning the elections on which they plan to spend huge sums to run ads in support of candidates they favor.

Supreme Court Bars Broadcast of Prop 8 trial

"Who are you? what's in your mind?/Behind the mask a mocking smile"

Just hours before the trial of the constitutionality of California's anti-marriage-equality Proposition 8 was set to commence, the Supreme Court of the United States has blocked the airing of the trial video on YouTube as well as the planned live streaming to other federal courthouses. See the AP story in the Sacramento Bee here. Perhaps the Court blocked this broadcast because they’d also previously blocked the disclosure of the identity of donors to the anti-marriage equality campaign in Maine. But there’s a difference between keeping something out of evidence and keeping identified witnesses in open court from being seen by the people of the nation. Keep in mind that this is the same Supreme Court on whom lawyers Ted Olson and David Boies are pinning their hopes for a successful outcome from this lawsuit.

Marriage Equality Defeated (for now) in Maine

Andrew Sullivan Misreads the Situation in the Pine Tree State

A majority of voters in Maine yesterday chose to repeal the state’s law allowing same-sex couples to get married before it even went into effect, the Bangor Daily News reports here. Following last year’s debacle of Proposition 8 stripping same-sex couples of the right to marry, Maine becomes the second state to have (almost) had equal state-controlled rights for lesbigay persons only to lose them to the expression of fears or prejudice at the ballot box.

Thus Andrew Sullivan is wrong to write in his blog that “in Maine, … gays do have equality but may now merely be denied the name.” Unless he is writing about the abstract moral equality that underlies claims to human rights, or the abstract political equality of persons and citizens ostensibly protected by the U.S. Constitution, Sullivan is simply wrong to assert that lesbigay people in Maine “have equality,” for several reasons.

First, same-sex couples in Maine are now relegated to state registered domestic partnerships but, unlike California’s domestic partnerships, these are decidely weaker than civil marriages. The Maine Department of Health and Human Services, has even cautioned in bold print that "[i]t is important to remember that a registered domestic partnership is NOT the same as a marriage and does not entitle partners to rights other than those for which the registry was intended. This registry is intended to allow individuals to have rights of inheritance as well as the rights to make decisions regarding disposal of their deceased partners remains."

Second, even if Maine attached all the same state-controlled rights, benefits, and obligations of civil marriage to domestic partnerships, the voters’ decision to deny marriage to same-sex couples imposes a legal burden on them that different-sex couples don’t face. When a married couple goes to another state, there is a well established body of interstate marriage recognition law that they can appeal to. Granted, the “Defense of Marriage Acts” (DOMAs) adopted in many states make it harder to invoke this body of law successfully. But same-sex couples in Maine now will face the additional hurdle of having also to argue that their non-marital status should count as a marriage for purposes of this body of law. Likewise, if Congress were to repeal the federal DOMA, which Barack Obama has said he supports, then married same-sex couples would automatically be governed by the estimated 1,138 federal laws that make marital status relevant; same-sex couples from Maine, however, would have additionally to try to argue that their domestic partnership, intentionally distinguished from marriage, should nonetheless be treated as a marriage for federal law purposes.

And third, Andrew Sullivan here seems to be making the same volte-face as the California Supreme Court did this past spring when it upheld Proposition 8 , which stripped same-sex couples in California of the right to marry. When Chief Justice Ronald George wrote for the Court in 2008 in striking down the marriage exclusion as violating the California Constitutionl, the Chief Justice penned eloquent passages about the importance of being included in the institution of “civil marriage” as such for the equality and dignity of lesbigay people. Yet when he wrote for the same court a year later and upheld California’s pernicious ballot measure, his reasoning seemed to many to hold that this was a sufficiently non-fundamental change to the state constitution – even though it targeted a minority group defined by a suspect classification for deprivation of a fundamental right, the right to marry – because the “sole” effect of Prop 8 was to deny same-sex couples the “designation” of “marriage.”

Andrew Sullivan seemed to appreciate the stakes when the California Supreme Court first invalidated the discriminatory marriage exclusion. In his blog mere days after the decision, he wrote:

“Equality is equality is equality. And a marriage license is a marriage license is a marriage license. Calling it something else for a few is a way of saying it is something else for the few, and something lesser for the few. There is no way around this, and in many ways, I am grateful that the California court put it so bluntly.”

Nothing has changed about the nature of equality, so it is not apparent to me why Sullivan seems to have changed his mind about equality in Maine.

DC Council Introduces Marriage Equality Bill

"Show your friends across the sea/It's a fair dance"

On Tuesday, October 6, the Council of the District of Columbia introduced legislation to allow same-sex couples to marry, the New York Times reports. The bill is expected to pass, but it could be subject to congressional override, setting up the prospect of potentially uncomfortable votes for Democrats in Congress, which under Republican "leadership" had for a decade (until 2002) barred DC from spending federal or local money to implement the District's domestic partnership law. If Congress manages not to intervene, it will be powerfully symbolic to see marriage equality come to the nation's capitol, in stronger form than merely recognizing valid marriages performed in other jurisdictions. Now if Congress would repeal DOMA!

Wiliams Institute Study Supports Inclusive ENDA

"When heterosexism strikes, strike back"

The U.S. House of Representatives held hearings today on H.R. 3017, the Employment Non-Discrimination Act of 2009 (ENDA), which would prohibit employment discrimination on the basis of sexual orientation and/or gender identity. Brad Sears, Executive Director of the Williams Institute, a national research center on sexual orientation and gender identity law and public policy at UCLA School of Law, testified in support of the bill.

Sears summarized the findings of a twelve-month research study conducted by the Williams Institute, which found widespread and enduring discrimination on the basis of sexual orientation and on the basis of gender identity by state and local government as well as in the private sector. These findings support the conclusion that Congress has the power to enact ENDA under Section 5 of the 14th Amendment, which grants Congress the authority (among other things) to enforce the guarantees of that Amendment's Equal Protection Clause.

Congress would assuredly have the constitutional authority to adopt ENDA under its power to regulate interstate commerce. Congress's Section 5 power is important, however, because it (and not the commerce power) would allow Congress to authorize private individuals who have been discriminated against by state governments to sue those governments for money damages to compensate them. Without that authority, states would be able to assert "sovereign immunity" as a shield against monetary awards under current constitutional law.

If you have not already done so, please let your Representative know that you want her or him to stand up for fundamental fairness and support the right of Americans of every sexual orientation and gender identity to work free of invidious discrimination. You can reach your Representative by dialing 202-224-3121 and giving the operator your zip code; ask her or him to support and to sponsor ENDA, H.R. 3017.


Disclosure: I am a Visiting Scholar at the Williams Institute this semester, as I was in Spring 2003, and I remain a member of the Institute's Faculty Advisory Committee; however, I was not involved in the preparation of this testimony or report.

LGBT Advocacy Groups Excluded from Suit Challenging Prop 8

"And you just might need a friend"

Federal court trial judge Vaughn Walker has scheduled trial in the challenge to Proposition 8's ban on California's allowing same-sex couples to marry for January 2010. See the San Jose Mercury News story here. He also rejected the attempts of LGBT advocacy groups to intervene to challenge and an anti-gay group to defend Prop 8 as direct parties, indicating that they could instead present their views through amicus curiae ("friend of the court") briefs. The City and County of San Francisco was allowed to intervene, but only for limited purposes according to some news accounts. Let's hope that's enough to ensure the plaintiffs challenging Prop 8 establish an adequate factual basis for their claims.

Portugal's Marriage Exclusion Upheld

"Something good could happen/Something good could have happened"

In a closely divided decision, the Constitutional Court of Portugal voted 3 to 2 to uphold that country's restriction of marriage to male-female couples against a challenge based on a provision in the Portuguese Constitution forbidding sexual orientation discrimination, reports the Associated Press. I believe this is the statement from the Court's web site (but I do not read Portuguese). Unless the Court reverses course some time in the future or the European Court of Human rights accepts and agrees with the appeal of the lesbian couple denied a marriage license, marriage equality there will have to await the approval of Portugal's Parliament, which does not appear to be an imminent prospect.

Delhi High Court Curtails Sodomy Law

"Times are changing for the better"

Today the High Court of Delhi at New Delhi sharply limited Section 377 of the Indian Penal Code. Section 377, which prohibits "carnal intercourse" and has come to be known as the "unnatural offences" section, was facially neutral but in practice targeted LGBT persons. The Court held it unconstitutional insofar as it criminalized consensual sex acts between adults in private. In closing, the Court wrote:

"If there is one constitutional tenet that can be said to be
underlying theme of the Indian Constitution, it is that of
'inclusiveness'. This Court believes that Indian Constitution
reflects this value deeply ingrained in Indian society,
nurtured over several generations. The inclusiveness that
Indian society traditionally displayed, literally in every
aspect of life, is manifest in recognising a role in society for
everyone. Those perceived by the majority as “deviants' or
'different' are not on that score excluded or ostracised.
"Where society can display inclusiveness and understanding,
such persons can be assured of a life of dignity and non-
discrimination. ... In our view, Indian
Constitutional law does not permit the statutory criminal law
to be held captive by the popular misconceptions of who the
LGBTs are. It cannot be forgotten that discrimination is anti-
thesis of equality and that it is the recognition of equality
which will foster the dignity of every individual."