Strong Unions, Strong Democracy

From yesterday’s New York Times “Opinion” by By Richard Kahlenberg

IF the questions that came up during oral argument in Friedrichs v. California Teachers Association on Monday are any guide, the ruling bloc of conservative justices appears ready to render a decision later this year that would significantly weaken public sector labor unions.

By stripping these unions of key financial resources — their fair share of fees provided by nonmembers — the court would upend a longstanding precedent. A decision in favor of the plaintiff would effectively slam the door on an era in which some conservatives joined liberals in recognizing that vibrant unions help make our democracy work. This is radicalism, not conservatism.

Public sector unions — representing teachers, firefighters and the like — are the remaining bright spot in America’s once-thriving trade union movement. In the case before the Supreme Court, Rebecca Friedrichs, a dissident teacher in Southern California, argues that she should be able to accept the higher wages and benefits the union negotiates, but not help pay for the costs.

Relying on the First Amendment, Ms. Friedrichs says that she shouldn’t be forced by the government to support political causes with which she disagrees. But almost four decades ago, the Supreme Court came to a sensible compromise on this issue, written by an Eisenhower appointee, Justice Potter Stewart:

No public sector worker can be compelled to join a union or to pay for its political efforts. However, the state may require that every worker pay fair share fees to support the costs of collective bargaining over bread-and-butter issues like wages, benefits and working conditions.

That 1977 ruling appears in real danger of being overturned. Doing so, David C. Frederick, a lawyer representing the union, told the court, “would substantially disrupt established First Amendment doctrine and labor management systems in nearly half the country.”

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SCOTUS upholds equal protection, rules against laws excluding gays and lesbians from marriage

What a long, strange trip it’s been.

In 2003 I was a graduate student in the philosophy program at UCSD, taking a seminar on jurisprudence from the eminent moral philosopher David Brink. In his seminar we read and discussed a variety of arguments by scholars ranging from Justice Antonin Scalia on “originalism” to Joel Feinberg on free expression vs. “offensive nuisances,” and we also read and discussed seminal Supreme Court cases relating to these issues. I had been interested in law and legal issues for many years by that time, having taken up policy debate as a way of life in high school, not to mention mock trial and Model U.N. in college. Moreover, I was a gay man and conscientious citizen who had already concluded that legal discrimination on the basis of sexual orientation had no place in a constitutional democracy that depends, in its very meaning, on the motto “equal protection under the law.” In other words, I was a “second-class” citizen with an axe to grind and had the analytical skills and arguments to hone its edge to near perfection. Sharpen Sie!

It was in that seminar that a close reading of constitutional principles and significant SCOTUS decisions on due process and equal protection convinced me there was one, and only one, simple line of argument leading from the 14th Amendment to the legal validity of same-sex marriage. I wrote my seminar paper on this topic, revised it later that summer, and sent it out for publication. The paper was titled “Equal Protection and Same-Sex Marriage” and it was published in the Journal of Social Philosophy in 2004. In it, I argued that the proper constitutional argument for supporting a decision on behalf of same-sex marriage and invalidating both federal and state laws defining “marriage” as a union of a man and woman is easily discerned in equal protection doctrine.

Admittedly, there is a lot of semantic confusion about the word “marriage” and its proper referent in this case, as well as a lot of empirically inaccurate, vaguely historical arguments about its definition as such a union (truthfully, before the emergence of the modern democratic state in Western societies only recently, and in much of the world still, “marriage” really refers to men owning and treating women like property). However, there is a precise legal meaning to the word “marriage” in this constitutional debate, and here we are talking exclusively about “civil” marriage, or the state’s legal recognition of a union between two persons that includes all the benefits and burdens that such recognition entails. Insofar as the state recognizes such unions from a legal standpoint they cannot exclude some persons from participating in it but not others. To do so is to violate the letter and the spirit of the equal protection clause of the 14th Amendment, which can be found at the very end Section 1 of that amendment. The sections reads:  “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Unfortunately, the inane and insanely inaccurate debate sponsored by American-style conservatism about re-defining the word “marriage” has simply muddied the water to what is otherwise a crystal-clear expression of the obvious:  The decision that the Supreme Court reached in Obergefell v. Hodges on June 27, 2015 doesn’t redefine “marriage” at all, doesn’t substitute the judgment of “five lawyers” on the bench for the “will of the people,” and doesn’t even invent a new “gay” right on anything. Rather, the landmark ruling does nothing more and nothing less than enforce the equal protection of the clause of the 14th Amendment concerning the “civil” recognition of marriage laws by states. In short, there are already are “marriage” laws on the books, and since the 14th Amendment states to the letter, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” it follows without remainder that the majority decision of this civil rights case is exactly right.

Now for those who unfamiliar with its history, the 14th Amendment to the United States Constitution was adopted on July 9, 1868, as one of several Reconstruction Amendments drafted in response to issues related to former slaves following the American Civil War including the intransigence of southern states to accept the rule of law. In short, the amendment was created as a means of strengthening our constitutional system against detractors and scofflaws. We fought them in the Civil War, we fought them against Jim Crow, we fought them to desegregate. Therefore, it is important to recall that the basis of this landmark decision overturning anti-gay marriage laws, that civil rights are for all not just for some, is rooted in this country’s long and painful history to overcome, confront, overcome again and confront yet again.

By Kory P. Schaff, Editor

Supreme Court strikes down DOMA, rules against Prop 8 defenders

In a landmark but mixed decision the US Supreme Court struck down a key provision of the Defense of Marriage Act that prohibited federal recognition of gay and lesbian couples. In a 5-4 decision written by Justice Anthony Kennedy the majority decision announced in plain terms that the law violated the Equal Protection Clause and was therefore unconstitutional. Kennedy is the lone moderate of the court and a maverick of civil rights jurisprudence. He has now written three of the Court’s most important decisions on civil rights for gays and lesbians, including Romer v. Evans, which struck down Colorado’s Amendment 2 in 1996, and Lawrence v. Texas, which invalidated all state laws criminalizing sodomy in 2003.

The court also made a procedural ruling in the California case, effectively ending the efforts of Prop 8 proponents to overturn the Federal District Court ruling that struck down Prop 8 because it violated the Equal Protection Clause. In his majority opinion Chief Justice Roberts denied that private citizens had standing to adjudicate the appeals of state laws, arguing the Court had never done that before and would not do it now. Since Prop 8 proponents are not state agents, they cannot appeal the ruling of federal district judge Vaughn Walker, who found it unconstitutional after a long and highly publicized trial. However, Roberts and the Court stopped short of making a substantive ruling on whether state laws and marriage amendments passed by states are constitutional, signaling that it would let states decide for the time being.

The combined ruling of the two cases is seen as a victory by the LGBT community, particularly in California where the state assembly passed legislation allowing gay and lesbian couples to marry only to have the referendum Prop 8 overturn that legislation by small margins. This left the state in a strange place where many couples got married when it was legal, only to have other couples denied the same rights to marry several months later. Today, Gov. Jerry Brown ordered state agencies to prepare for issuing civil marriage licenses to all Californians regardless of their sexual orientation and gender, and he admonished the 9th Circuit Court of Appeals to lift its injunction while Prop 8 was being appealed.