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“Constitutional Protections Cannot Be Undone By Popular Vote”: Why The Constitution Trumps Any State’s Ban On Same-Sex Marriage

With the Supreme Court scheduled to hear oral argument next week in marriage equality cases, everyone is looking to the marriage cases the Court decided in 2013 in an attempt to predict what it’s likely to do this time around. But another recent case on a very different topic may actually have much more to say about marriage equality than one would think: last year’s case about warrantless searches of an arrestee’s cell phone. In that case, the Court held such searches unconstitutional and underscored a principle that bears on the marriage discussion—namely, that constitutional protections cannot be undone by popular vote.

The basic question in the marriage equality cases is simple. Does the Fourteenth Amendment—which prohibits states from denying any person “liberty… without due process of law” and “the equal protection of the laws”—bar state bans on same-sex marriage? The text and history of the U.S. Constitution, not to mention the Court’s own precedents, make clear that it does. Opponents of marriage equality thus are resorting to what is becoming a familiar argument, saying marriage equality should be decided not by the courts, but by the people. By that logic, citizens of individual states can trump the Constitution’s broad equality guarantee if they vote to do so.

One of the most significant statements of this view can be found in the lower court opinion the Court is reviewing. Last year, federal appeals court judge Jeffrey Sutton described the question in the marriage equality cases as a “debate about whether to allow the democratic processes begun in the States to continue… or to end them now by requiring all states in the Circuit to extend the definition of marriage to encompass gay couples.” He noted that “[i]n just eleven years, 19 states and a conspicuous District, accounting for nearly 45 percent of the population, have exercised their sovereign powers to expand [the] definition of marriage.” He described that “timeline” as “difficult… to criticize as unworthy of further debate and voting.” Unsurprisingly, defenders of that opinion have continued this line of argument in the Supreme Court.  One of the parties’ briefs argues that the Court should adopt a deferential standard in reviewing state marriage bans because that standard “defers to voters in order to protect the democratic process.” Another asserts that “[t]he Constitution delegates most sensitive policy choices to democratic debates, not judicial mandates.”

These arguments about “democratic process” may seem more attractive than some of the other arguments made by opponents of marriage equality. For instance, leaders of the 2012 Republican National Convention Committee on the Platform filed a brief arguing that marriage bans are constitutional because, in part, men need “traditional marriage” so women can “‘transform [their] male lust into love.’”

But there’s a basic flaw in the “democratic process” arguments, as last year’s cell phone search decision confirms. They get the Constitution exactly backwards.

In Riley v. California, the Court considered whether the police may without a warrant search someone’s cell phone following an arrest. The Court held, in a unanimous opinion, that the answer is no; such searches are generally prohibited by the Fourth Amendment’s requirement that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures… not be violated.” Recognizing that “unrestrained search[es] for evidence of criminal activity” was “one of the driving forces behind the [American] Revolution,” the Court concluded that warrantless cell phone searches permitted too great an intrusion on privacy and thus should not be allowed, absent exigent circumstances preventing the police from obtaining a warrant. As Chief Justice Roberts explained in the Court’s opinion, modern cell phones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy,” and they can contain a vast amount of “sensitive personal information.”

Justice Alito agreed with the rest of the Court that such searches were unconstitutional, but he wrote separately to make two points, one of which has bearing on the marriage equality cases. Alito wrote that he “would reconsider the question presented here if either Congress or state legislatures, after assessing the legitimate needs of law enforcement and the privacy interests of cell phone owners, enact legislation that draws reasonable distinctions based on categories of information or perhaps other variables.” Put differently, Alito would allow Congress and state legislatures to change the Court’s answer in Riley. Even though the Court had concluded that the Fourth Amendment’s prohibition on “unreasonable searches and seizures” generally prevents the police from engaging in such searches, Alito would allow Congress and state legislatures to decide that “the legitimate needs of law enforcement” outweigh the “privacy interests of cell phone owners.”

Tellingly, no other Justice joined Alito’s opinion. Not one. And that tells us a great deal about the “democratic processes” position adopted by Judge Sutton and advanced by opponents of marriage equality. What the rest of the Court implicitly recognized in Riley was that Alito’s approach is fundamentally wrong. Congress and state legislatures may be able to supplement the Constitution’s protections—indeed, they may sometimes be well-suited to doing so, as Alito noted in a different Fourth Amendment case about GPS monitoring—but they cannot scrap them.

Indeed, that is a point so fundamental to our constitutional order that the Supreme Court has made it repeatedly in various contexts, noting that fundamental constitutional protections “depend on the outcome of no elections,” and “[a] citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.”  As recently as 2011, in a campaign finance case, Roberts explained that “the whole point of the First Amendment is to protect speakers against unjustified government restrictions on speech, even when those restrictions reflect the will of the majority.” The Constitution, not voters, has the ultimate legal authority. In the past, the Court hasn’t treated the Fourteenth Amendment any differently than the First and the Fourth. In 1996, for example, it struck down a state constitutional amendment adopted by state voters because it violated the Fourteenth Amendment.

When the Court considered the scope of the Fourth Amendment’s protections in Riley, it didn’t say it was up to Congress or state legislatures to decide how much privacy Americans enjoy when it comes to their cell phones. Instead, the Court considered the text and history of the Fourth Amendment, as well as the Court’s precedents. The Court should do the same thing this year when it considers the scope of the Fourteenth Amendment’s protections in the marriage equality cases. If it does, there’s no question what the result should be: a resounding victory for marriage equality.


By: Brianne J. Gorod, Appellate Counsel at The Constitutional Accountability Center; The New Republic, April 23, 2015

April 27, 2015 Posted by | Marriage Equality, States Rights, U. S. Constitution | , , , , , , , , | Leave a comment

When Conservatives Play Make-Believe: Jonathan Cohn

Paul Waldman, today, writing at the American Prospect: The only problem is that there is no tyranny to rebel against. President Barack Obama isn’t rounding up his opponents. He isn’t punishing them for their free speech. He hasn’t even raised anyone’s taxes, save for a boost in the federal cigarette tax (we await the event where the tea partiers dump cartons of Marlboros into the Chesapeake). So what are the outrageous crimes that have driven the right to shout “Enough!” until their faces turn red? In the face of the worst economic crisis since the Great Depression, Obama passed a large stimulus bill. And he might pass health-care reform that could extend coverage to those who don’t have it, all while preserving the private insurance system. He’s also embraced a market-based initiative for reducing greenhouse emissions. Not exactly a program that would that would offend the delegates of the Continental Congress. What has driven conservatives to distraction isn’t tyranny — it’s the oldest political complaint in the book: The other guys won and are attempting to implement their agenda.

Yet when conservatives criticize the administration, today’s playacting revolutionaries imagine themselves heroes of liberty, bravely staring down the forces of oppression. This notion must be called what it is: a puerile fantasy. The tea-party sign-waver is not the man standing in front of the tank in Tiananmen Square. The conservative blogger is not Jacobo Timerman, exposing the barbarity of the Argentine junta only to experience it himself. The activists and operatives and think-tank denizens are not Vaclav Havel, or Ken Saro-Wiwa, or Nelson Mandela.

And they sure aren’t Washington, James Madison, or Thomas Jefferson. Precisely because they live in the country those American visionaries made, the Founding Father fetishists risk nothing by objecting to the current administration, no matter the apocalyptic language they use to clothe those objections in glory. They are participants in public debate in the world’s oldest democracy–nothing more, nothing less. It’s a fine thing to be, but it doesn’t make you a hero. And putting on a tricornered hat won’t make it so.

Jonathan Cohn-Senior Editor: The Treatment-The New Republic- February 23, 2010

February 23, 2010 Posted by | Health Reform, Politics | , , , , , , , | Leave a comment

A Brief Reconciliation Primer–Jonathan Chait: The New Republic


The health care debate is quickly going to focus on whether its passage entails some immoral act of partisan hardball or merely a common legislative procedure. Unfortunately, it seems that very few people understand the details of it well enough to form an opinion, and this includes reporters who cover it.

Senate Republicans collected quotes from 18 Senate Democrats expressing skepticism about using budget reconciliation to pass health care reform. The Hill reports skeptically on this claim, pointing out that many of the quotes are dated, and the Senators have since expressed openness to using reconciliation. But this response misses the deeper problem here: the Republicans are conflating two extremely different things.

Let me explain. Reconciliation is a legislative procedure for passing changes to the budget — taxes and spending — that only requires a majority in the Senate. Last year some Democrats pondered passing health care reform entirely through reconciliation. Critics pointed out that such a move could result in many of the crucial features of the bill being stricken by the Senate parliamentarian on grounds that they aren’t budget changes. (Say, insurance regulations would probably not be able to pass through reconciliation.) Ultimately, Democrats decided to go through the regular order, and they passed a health care bill through the Senate with 60 votes.

Now that they’ve lost the ability to break a filibuster, Democrats plan to have the House pass the Senate bill, and then use reconciliation to enact changes to the Senate bill demanded by the House. These changes — higher subsidy levels, different kinds of taxes to pay for them, nixing the Nebraska Medicaid deal — mainly involve taxes and spending. In other words, they’re exactly the kinds of policies that are well-suited for reconciliation.

It’s not just The Hill that misses the distinction, but the whole political media. Here’s Sunday’s New York Times:

Many Democrats in Congress said they doubted that it was feasible to pass a major health care bill with a parliamentary tool called reconciliation, which is used to speed adoption of budget and tax legislation. Reconciliation requires only 51 votes for passage in the Senate, but entails procedural and political risks.

Again, using reconciliation to patch up the Senate bill is a totally different thing than using it to pass an entire health care bill. I can understand why Republicans would treat them as identical — they’re spinning for partisan purposes. Reporters covering this issue have no good excuse.

Saturday February 20, 2010 3:04pm

February 21, 2010 Posted by | Health Reform | , , , , , , , | Leave a comment

The News Media Failed on Health Care Reform


via Tufts Daily – The news media failed on health care reform.

February 16, 2010 Posted by | Health Reform | , , , , , , , , , , , | Leave a comment


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