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Thursday, November 13, 2014

Gay Marriage, The 6th Circuit, Jeffrey Sutton, and the Supreme Court




 


Justice Ginsberg
A few months ago liberal Supreme Court Justice Ruth Bader Ginsberg was asked what the Court was going to do this year about lower federal court cases striking down gay marriage bans enacted by many states throughout the country.  She gave the cryptic reply that observers should pay attention to what happens in the 6th Circuit Court of Appeals.  Court watchers knew what she meant: what would Judge Jeffrey Sutton do?

Judge Sutton [pictured in the first photo above] is one of the most respected jurists in the country.  Appointed by the last President Bush to the 6th Circuit he has rapidly become a bellwether for how conservative causes will fare in major cases.  One example was his surprising opinion upholding the key elements of Obamacare (which disappointed his conservative fans), a stance subsequently echoed by the Supreme Court itself [see http://douglaswhaley.blogspot.com/2012/07/obamacare-john-roberts-and-supreme.html].  Jeff Sutton is a friend of mine, dating from when he was one of my students, to his continued teaching as an adjunct professor at the Ohio State Moritz College of Law where I teach (he joked to me in the mailroom a year or so ago that due to all the teaching he’s done for us he’s the only adjunct professor at OSU on a tenure track), and seeing him at various events.  When he was sworn in as a member of the 6th Circuit, at the party following I caused him to roll his eyes when I predicted an appointment to the United States Supreme Court would follow.  When next a Republican is elected president that’s a strong possibility.  Jeff is scary smart, thoughtful, and dedicated to getting things right.

On November 6, 2014, the 6th Circuit Court of Appeals handed down the first decision in this country by a federal appellate court that did not strike down the state bans on gay marriage that were the subject of the combined cases before it from four states.  The ruling in the case, called DeBoer v. Snyder, was 2-1, with Jeffrey Sutton writing the majority opinion (joined by Judge Deborah Cook, also appointed by President Bush); the dissent came from Judge Martha Daughtrey (a Clinton appointee).  This major ruling creates a conflict between the circuits and makes the issue plump for resolution by the United States Supreme Court.  The 6th Circuit’s deviation from the results in the other circuits and what it means for the legal future of gay marriage ban challenges is the subject of this blog post.

Judge Sutton’s opinion begins like this:

Of all the ways to resolve this question, one option is not available: a poll of the three
judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee. What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?

 
He then refers to Baker v. Nelson, 409 U.S. 810, 810 (1972), in which two men had tried to get married in Minnesota in the early 1970s only to have the Minnesota Supreme Court reject their marriage application.  The men appealed to the United States Supreme Court. The Court rejected their challenge, issuing a one-line order stating that the appeal did not raise “a substantial federal question.”  Sutton comments:

 
This type of summary decision, it is true, does not bind the Supreme Court in later cases. But it does confine lower federal courts in later cases. It matters not whether we think the decision was right in its time, remains right today, or will be followed by the Court in the future. Only the Supreme Court may overrule its own precedents, and we remain bound even by its summary decisions “until such time as the Court informs [us] that [we] are not.” Hicks v. Miranda, 422 U.S. 332, 345 (1975). . . .  The Court has yet to inform us that we are not, and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves.

 
Sutton then explores whether the Court has ever said that gay marriage is a federal question, and concludes that in its three decisions concerning gay rights the Court has not.  In Lawrence v. Texas (2003) the Court struck down all sodomy statutes as unconstitutional, and in Romer v. Evans (1996) the Court held that a state could not first grant gays rights and then take them away without a valid reason, but neither of those cases dealt with marriage.  The one Court opinion that does, the Windsor case from last year, ruled that the federal government could not constitutionally refuse to recognize gay marriages validly entered into in states that allow such marriages, but the majority opinion clearly stated that it expressed no view on whether the states must follow suit (causing Justice Scalia in dissent to scoff that now we’re “only waiting for the other shoe to drop”).

 
Thus, Sutton reasons, unless the Constitution clearly requires states to marry gay couples, it would be wrong for the lower federal courts to do so.  He begins his constitutional analysis with what scholars call “original meaning,” i.e.: would the drafters of the Constitution have had an opinion on the matter at issue in this case.  Sutton states:

 
If American lawyers in all manner of settings still invoke the original meaning of Magna Carta, a Charter for England in 1215, surely it is not too much to ask that they (and we) take seriously the original meaning of the United States Constitution, a Charter for this country in 1789. Any other approach, too lightly followed, converts federal judges from interpreters of the document into newly commissioned authors of it. . . .  Yes, the Fourteenth Amendment is old; the people ratified it in 1868. And yes, it is generally worded; it says: “[N]or 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.” Nobody in this case, however, argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.

 
Sutton then looks at the argument based on the 14th Amendment that has swayed many other Circuit Courts into coming out in favor of gay marriage: the argument that there is no “rational basis” for discriminating against gay couples wishing to marry.  He asks why human societies created marriage in the first place, and buys the argument (rejected by the other courts) that marriage protects children (which straight couples can all too easily produce) by making sure these children are frequently born into a legal arrangement difficult to undo.  Since gays cannot have unwanted children, the argument goes, society didn’t include them in the concept of “marriage.”  When confronted with the argument that gays should be so included, he agrees, but then goes on to say:

 
The signature feature of rational basis review is that governments will not be placed in
the dock for doing too much or for doing too little in addressing a policy question. In a
modern sense, crystallized at some point in the last ten years, many people now critique state marriage laws for doing too little—for being underinclusive by failing to extend the definition of marriage to gay couples. Fair enough. But rational basis review does not permit courts to invalidate laws every time a new and allegedly better way of addressing a policy emerges, even a better way supported by evidence and, in the Michigan case, by judicial factfinding.

 
Judge Sutton then finds another “rational basis” in allowing states to experiment with what works and what doesn’t, allowing them to see what other states are doing and deciding whether to follow.  Some states in the past have allowed polygamy, others child marriage, while yet others have forbidden even first cousins to marry.  In Sutton’s view the states are laboratories for innovations in civilization: “If, before a new consensus has emerged on a social issue, federal judges may decide when the time is ripe to recognize a new constitutional right, surely the people should receive some deference in deciding when the time is ripe to move from one picture of marriage to another.”

 
In a similar, and very thorough manner, Sutton then demolishes the other legal arguments for striking down gay marriage bans.  His analysis is very polished and on first reading seems strong.  His conclusions are thoughtfully and eloquently expressed.

 
Throughout his opinion, Judge Sutton is careful to acknowledge that gays have been much discriminated against, that they deserve the right to marry, that their concerns are valid ones, etc., but none of these considerations persuade him that the Constitution requires or even permits him to invalidate state marriage laws that do not—so far—allow gays to marry.
 

The majority opinion concludes by opining that the Supreme Court might well overrule this decision and mandate gay marriage, but isn’t it also possible that the Court will go the other way on the theory

 
that the traditional arbiters of change—the people—will meet today’s challenge admirably and settle the issue in a productive way? In just eleven years, nineteen States and a conspicuous District, accounting for nearly forty-five percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history. That is a difficult timeline to criticize as unworthy of further debate and voting. When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

 

Now comes the dissent by Judge Martha Daughtrey which all the commentators have rightly described as “blistering.”  Here are her first two paragraphs:

 
The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for “proceeding with caution” (otherwise known as the “wait and see” approach), I dissent.

In the main, the majority treats both the issues and the litigants here as mere abstractions.
Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of Michigan, Ohio, Kentucky, and Tennessee voters to their cause. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples . . . who want to achieve equal status . . . with their married neighbors, friends, and coworkers, to be accepted as contributing members of their social and religious communities, and to be welcomed as fully legitimate parents at their children’s schools. They seek to do this by virtue of exercising a civil right that most of us take for granted—the right to marry.

 
She then points out what is missing from the majority opinion is any discussion of the children of homosexual couples.  She ties this thought to the “rational basis” the Sutton’s opinion found compelling for upholding marriage as only for heterosexuals in order to protect their accidental babies, and comments:
 

How ironic that irresponsible, unmarried, opposite-sex couples in the Sixth Circuit who produce unwanted offspring must be “channeled” into marriage and thus rewarded with its many psychological and financial benefits, while same-sex couples who become model parents are punished for their responsible behavior by being denied the right to marry. As an obviously exasperated Judge Posner responded after puzzling over this same paradox [in his splendid Seventh Circuit opinion striking down the gay marriage ban, see below], “Go figure.”

 
Judge Daughtrey then traces the terrible plight of the children living in gay households in the various cases consolidated for appeal in this case, and in a lengthy discussion of the prior decisions by the other Circuits and the court below demonstrates that their legal conclusions are more than merely sound under current constitutional theories, they are compelling.  As for the minor case that begins Sutton’s opinion she sneers, that “If ever there was a legal 'dead letter' emanating from the Supreme Court, Baker v.Nelson, 409 U.S. 810 (1972), is a prime candidate. It lacks only a stake through its heart.”  She notes “the Supreme Court silence on the matter in the 42 years since it was issued,” and the fact that the Court has not mentioned that case in any of the other gay rights cases it has decided since.  She concludes her opinion with this paragraph:
 

More than 20 years ago, when I took my oath of office to serve as a judge on the United
States Court of Appeals for the Sixth Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.” See 28 U.S.C. §453. If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

 
The full text of the opinions in this case are well worth reading; if interested see http://www.scribd.com/doc/245767271/14-1341-184-6th-Circuit-Decision-in-Marriage-Cases.

Now what? 

The Supreme Court made a canny move in not taking any of the other four Circuit opinions striking down the gay marriage bans in many states across the country.  As long as those courts were uniform SCOTUS could stay out of it, deciding by not having to decide.  But once the 6th Circuit went the other way, the Court is highly likely to take the appeal and decide it before the end of the Court’s term (concluding June, 2015).  This case is particularly appealing to all the Justices.  The four solid conservatives (Chief Justice Roberts, Scalia, Alito, and Thomas) might easily be wooed by Sutton’s opinion, which clearly and eloquently states a dominant conservative stance: the federal government should stay out of something which is primarily a matter for the states to decide themselves.  The four solid liberals (Ginsberg, Breyer, Kagan, and Sotomayor will think Sutton’s opinion is vulnerable along the lines traced in the dissent, and certainly out of step with the splendid opinions in the other Circuit Courts (most particularly the wonderful thundering of Judge Richard Posner in the 7th Circuit [see http://www.chicagotribune.com/news/opinion/zorn/chi-full-text-of-richard-posners-opinion-gay-marriage-20140905-story.html#page=1]. It only takes four Justices to vote to accept a case and then the Court must hear it.

Justice Kennedy
That leaves the man I’ve described in prior posts as the most powerful judge in the world, Justice Anthony Kennedy, with his usual swing vote in these hard cases [see http://douglaswhaley.blogspot.com/2011/07/jumping-broom-how-married-are-married.html].  Those readers in favor of striking down ani-gay marriage statutes and state constitutional provisions might be heartened by two facts about Kennedy: (1) in last year’s Windsor case he agonized over the fate of children being raised by homosexual couples who cannot marry and adequately protect them legally (which the dissent in the 6th Circuit opinion quoted in full), and (2) Kennedy has always been very friendly to gays, writing the majority opinions in all three of the famous Supreme Cases protecting gays mentioned above: Lawrence (striking down the sodomy statutes), Romer (protecting gays from having existing rights snatched away), and Windsor (holding that the federal government must recognize gay marriages legally sanctioned by states).
 
 

 

Related Posts:
“A Guide to the Best of My Blog,” April 29, 2013 [http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html]   

 

Friday, October 31, 2014

Today My Blog Had Its 300,000th Hit For Which I Am So Grateful


 
After any life-altering experience (in my case a heart transplant) it’s required by law that one start a blog.  My transplant was five years ago this Thanksgiving, and this December the blog will also be five.  But today the 300,000th hit occurred, and I’m very pleased by that.

My blog has not been either the usual “What I Did Today” nor a steady commentary on one particular subject.  Instead I’ve tended to write mini-essays on many different topics: gay rights, atheism, law, family stories, cats, etc.  I’ve published a lot of works in my life: numerous law review articles, seven textbooks used nationwide to teach various aspects of commercial law, three student guides that paid enough to be a major factor in getting my son through college, two novels, and even columns in minor publications, but nothing turns out to have been as important to me as this blog.  It contains my entire life: my history, my philosophy, my advice on many topics from the mundane (how to take many pills at once [http://douglaswhaley.blogspot.com/2010/05/how-to-take-or-many-pills-easily.html]) to the profound (how to make the hard decisions in life  [http://douglaswhaley.blogspot.com/2010/07/deathbed-test.html], how to handle being gay [http://douglaswhaley.blogspot.com/2010/08/how-to-tell-if-youre-gay.html], atheism and belief [http://douglaswhaley.blogspot.com/2011/05/atheist-interviews-god.html], and more). 

My other works have an expiration date on them (well, perhaps not the novels) since inevitably the law will change and my law books will become out of date once I depart the scene (a prospect that seems more ominous as I venture into my seventies).  But the blog will never die as long as Google lasts.  What a terrific—and scary—thought that is!

My readership is worldwide: more than a third of my hits come from outside the United States (and it was nearly forty percent when the blog first started—I don’t know why).  The current statistics only report on the last 50,000 hits (one sixth of the current total), but within that number here are the top 25 countries in number of visitors:
 


Immodestly, I like to think my blog makes a difference.  Without knowing their names or how to contact them, I can tell from their paths through the blog that many readers have tracked my thoughts carefully.  More than once a week, for example, a reader somewhere in the world explores almost all of my posts having to do with being a homosexual in a world that is often still very suspicious of gays, and that leads me to believe I’m making it easier to understand how to deal with the dilemmas this social difficulty can cause.  Sometimes users will pull my email address from my blog profile and send me specific questions (or put them in the comments to individual blog posts).  I’ve heard from scared teenagers who fear their parents will kill them if they come out, to very closeted homosexuals in countries or communities where being discovered leads to disaster.  My heart goes out to them and I offer what advice I can.  I’ve also advised parents on how to deal with their own homophobia  [http://douglaswhaley.blogspot.com/2013/10/disowning-your-gay-children.html].  
Incredibly, once a year or so a reader decides to read almost every one of the blog posts I’ve written, which would take days.  Most recently someone in Ann Arbor, Michigan began doing this, and in the past the phenomenon has ranged over the planet from the United Kingdom to Brunei and spots in between.  I’m humbled by this, but perhaps I shouldn’t be—these readers may hate my posts so much that a grip of horror keeps pulling them back.
 


The most popular posts have to do with legal matters, these three dominating: promissory notes in mortgage foreclosures http://douglaswhaley.blogspot.com/2013/02/mortgage-foreclosures-missing.html], payment-in-full checks  [http://douglaswhaley.blogspot.com/2011/04/payment-in-full-check-powerful-legal.html], and writing legal threat letters [http://douglaswhaley.blogspot.com/2011/10/how-to-write-effective-legal-threat.html].  But, embarrassingly, my musings about sexual matters have also been widely read all over the globe (even—gasp—in Paris!), most particularly http://douglaswhaley.blogspot.com/2011/11/good-sex-bad-sex-advice-on-making-love.html and  ­­­­http://douglaswhaley.blogspot.com/2011/03/seducing-straight-men.html.  Gay rights and atheism come in next in number of visitors, followed by the odds and ends of my posts.  For a list by categories, see “A Guide to the Best of My Blog,” April 29, 2013 [[http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html].  The legal posts lead to tricky questions about specific situations, but since I’m not allowed to practice law in most of these jurisdictions all I can give by way of help is a general discussion of what the rules of law are in the areas in which I’m conversant and a recommendation to consult an attorney.

It’s been a joy to have this blog, and particularly to connect to my readers.  I’m very grateful to you all for taking the time out of your lives to venture briefly into mine.

Wednesday, October 1, 2014

Ten Startling Sentences I Can Stop a Conversation With


 

1.  I Had a Heart Transplant.

Of course, this is the obvious sentence to start with.  Only about 3,500 heart transplants are performed annually throughout the world, so there aren’t a lot of people who can say that they are walking around with someone else’s heart beating inside them.

I had had a failing heart since 1999 when I developed atrial fibrillation and from that an enlarged heart. For the next ten years I was treated by a cardiologist at Ohio State University’s Ross Heart Hospital, and it was clear that my heart was failing. In January of 2009 I qualified for the heart transplant list, but because I was still able to get out and about, I was not high on that list. As recently as October of that year I was told that the transplant would likely take place in 2010, probably in the spring.

It’s one thing intellectually to think you’re getting a heart transplant in 2010, and quite another months before that to receive a morning phone call (I was working at the computer) on Nov. 23: "Mr. Whaley, we have a heart for you."  That was the most startling sentence I’ve ever heard in my life! Of course, the old heart started beating very fast indeed. The caller asked me how quickly I could get to the hospital, and I replied, “Twenty minutes—oh wait, I have to pack (I had spent some time in hospitals and knew all the things I would need to take with me)—how about forty minutes?” “That would be fine,” I was told, so I ventured to stretch it to, “How about an hour?” “Forty minutes,” came back the stern reply. I threw things into a suitcase and climbed into the car.

I have never driven so carefully in my life. The slightest traffic problem—even a fender bender—would have cost me time and possibly the new heart, which I assumed was on ice waiting for me. I arrived at the hospital, submitted to a biopsy (where they run a tube down a vein in your neck and take a small slice of your heart for lab work—I have now had many of these, see below), and at 7:30 p.m. that same day I was wheeled off to the operating room. The surgeon who performed the operation was Dr. Sun, called by the staff “our rock star,” because last past September had done a transplant in two hours! (The normal one takes five or more hours). The heart they inserted had come from Riverside Hospital, which is just around the corner from Ross Heart Hospital (and that was splendid luck since hearts can come from as far away as New York). The surgeon who fetched it from Riverside came by days later and told me that when he first saw it, he thought "that is a beautiful heart." A nurse who watched the operation was surprised that the old heart they removed was so enlarged that it was three times bigger than the new heart they put in. I was home and happy eight days later. Yes, eight days!

The whole experience has been like science fiction. I keep thinking that the more time that passes since this miracle occurred will make it seem more commonplace to me, but no. It still fills me with a wonder that’s growing instead of decreasing. What an amazing world we inhabit in the 21st century!


 

2.  I Sleep With Both Ears Folded Against My Head.


I’ve always had very large ears, inherited from my grandfather John Whaley, whose ears looked just as elephantine as mine.  Fortunately my curly hair disguises their size but in some photos they stick out.  I sleep on my side, but since I was a little boy I’ve found it uncomfortable to rest my head on this large lump.  I discovered early on that I could simply fold my ear forward and sleep that way.  Plus I always thought it was odd to sleep with every part of your body warm except your head, so I use an extra pillow to cover the head.  This led to folding the top ear as well, and thus all my life I’ve slept with folded ears, which has the further advantage of muffling sound.

 
 


This lifelong folding has made my ears very pliable so that they are easily moved back and forth.  The only people who’ve ever noticed this are barbers (“I’ve never seen an ear so easy to move around” is the common comment as the barber moves the ear forward to cut the hair behind it).

 
3.  My Cat Saved Me From Dying.


 

4.  On September 11, 2001, I Was Contemplating My Own Death.


 

5.  My Mother Taught Me How To Deal With Death Threats.

In 1981, I joined a fledgling gay activist movement in Columbus at its very start. It was then called “Stonewall Union,” and now, almost thirty years later is still the largest gay rights group in mid-Ohio under the name “Stonewall Columbus.”  There were major battles in those days, all captured in a DVD of the local movement’s history [available on YouTube at https://www.youtube.com/watch?v=NQotjSKjdIE], where I can be seen addressing the annual gay pride march on the Ohio Statehouse lawn and teaching the crowd how best to deal with near-by protestors, holding Bibles and teaching hatred to their little children. Some of the battles were public (a near riot in the Columbus City Council meeting when a gay rights ordinance was proposed), some private (I was jumped by a gang of teenagers one night, and was kicked around, most violently in the testicles, which was—how shall I put this?—no fun). Interestingly, I learned how to handle phoned death threats from an unusual source: my mother.  Dad by this time was a prosecutor in Dallas, and he was so good at it he’d been promoted to prosecuting “career criminals” (i.e., the Mafia). Mom would get phone calls telling her she and Dad would both die unless he stopped one of these trials from occurring, so she had some practical experience to pass on to her son. “What I do, Doug,” she advised, “is to say loudly, ‘Operator, this is one of those calls, please trace it.’ The caller hangs up immediately!” Then Mom added, “The opposite happened of what he’d planned.  He called to scare me.”  Of course, in those the days there were no such innovations as caller-ID, which (I hope) has made such calls rarer. I tried Mom’s method and it worked admirably.

 

6.  My Becoming a Law Professor Was an Alphabetical Accident.

With many thanks to Jay Westbrook for being a “W”: http://douglaswhaley.blogspot.com/2010/01/how-i-became-law-professor.html.

 

7.  I Flunked a College Course and Nearly Flunked It Again When I Repeated It.


 

8.  My Father Followed Me Through Law School.


 

9.  I Didn’t Go Through Puberty Until Age 23.

An early medical problem that affected my life greatly: http://douglaswhaley.blogspot.com/2011/05/going-through-puberty-at-age-23.html.

 

10.  I’ve Endured Around 50 Surgeries.


 
By “surgeries” I mean any procedure in which cutting was done on my body.  Some of these were small (cataract surgeries in both eyes) or lasik surgery, for example, but others were major (most obviously the heart transplant).  The first happened when I was in second grade and had my tonsils removed, and the most recent was a week ago Thursday when my ophthalmologist zapped my left eye fifteen times with a laser to remove a film causing me major vision problems.  I ruptured my appendix in 1978 and this led to my belly being sliced open six times in major surgeries; for the blog post on point see http://douglaswhaley.blogspot.com/2010/08/first-time-i-nearly-died.html.  Then, as topic #4 above explains there occurred much slicing open of my upper chest to take in and pull out a defibrillator in the years prior to the heart transplant.  As one point I had major problems with my nose which led to my turbinates being cut away by lasers.  And in 2013 I had a total knee replacement.  A blog clot in my leg required stents being inserted/removed in my body four times, and there have been an number of surgeries related to problems with my heart including one in which a dual electrical system had to be cut out.

Heart biopsies have led to most of the surgeries that count in the big number listed above.  In this interesting medical procedure, which takes about 45 minutes, the cardiologist inserts a tube into my neck on the right lower side, threads it down to the heart (which, trust me, does not like this invasion) and takes a four tiny snips for analysis, pulling them back up the tube.  Sounds like fun, right?  A couple of months before the transplant I had the first of these procedures. The next one was the day of the transplant itself (Nov. 23, 2009), and periodically thereafter (once a week for the first couple of months, then once a month for a year, and then three times a year, and, eventually, once a year), I have had and for the rest of my life will have to endure these occasionally. There have now been about thirty over the last five years.

None of these major or minor surgeries include other traumatic incidents in my life like breaking an arm (age ten) or a leg (age 16), nor bouts of various illnesses, including aspergillus which took me down immediately after the heart transplant and kept me in the hospital over New Years [see http://douglaswhaley.blogspot.com/2010/01/new-years-party-without-host.html].

So when people hear about my having had a heart transplant they sometimes ask if I was afraid when I was on a gurney being wheeled down a hall on my way to surgery.  I sigh and answer that—alas—I’m used to it.  As one blog post explained, I’ve walked away from death quite a number of times and am, happily, still here: http://douglaswhaley.blogspot.com/2012/02/walking-away-from-death.html.
 

 
 ------------------------------------------
Related Post:
“The Best of My Blog,” April 29, 2013
 

 

Saturday, September 27, 2014

Clicking on “I Agree”: Sticking Your Head in the Lion’s Mouth?



 
It happens to all of us once a week or even more often.  We’re enticed to enter into some transaction on the web and before the requested services/goods will be forthcoming we’re given a lengthy document to read that contains the “take it or leave it” terms of the supplier.  Unless willing to abort the transaction at this point, writing off the experience as a waste of time, we uneasily click on the “I Agree” icon.
 
 
Do you, blog reader, read the terms?  Most people don’t.  They are mind-numbingly detailed, written in dense legalese, meant to be too dull to contemplate, all in all the sort of thing Mark Twain once called “chloroform in print.”  Writing this sort of legal mumbo-jumbo in such a fashion that it’s almost impossible to stay awake long enough to both decipher and appreciate, is a much valued legal art.  The lawyers who wrote it don’t want you to read it.  They want the task to overwhelm you so that you just give in, wave the white flag, and click “I Agree.”
 
 
I’m a law professor who has taught the law of contracts over forty years (and authored a widely-adopted textbook on point).  So this blog post is a feeble attempt to answer this question: what is the legally smart thing to do when faced with that scary “I Agree” icon.  Is it binding?  How much trouble are you in if you agree?
 
Some contracts are too unfair to be enforced.  Once you have accepted this premise, the question becomes primarily one of drawing the line between a mere hard bargain and a contract so filled with one-sided boilerplate that it amounts to what one court called “carrying a good joke too far.” [Campbell Soup v. Wentz, 172 F.2d 80, 83 (3d Cir. 1948)]  Contracts containing harsh, unnegotiated terms presented to the other side on a “take it or leave it” basis are called adhesion contracts, because one party must adhere to the will of the other. They are said to resemble a law more than a contract.

If the contract contains terms that are so unfair as to be deemed “unconscionable” (beyond the boundaries of conscience), courts will typically toss out the unconscionable terms and enforce the rest of the agreement.  The idea that a contract may be unconscionable and therefore unenforceable in whole or in part is an old concept, with us at least as early as the mid-1700s (and, in fact, similar devices were available in Roman law).

Unconscionability is a wild card doctrine.  Ahead of time it’s hard to predict what clauses will strike the courts as too unfair to be enforced.  Certain things do usually pass muster: agreements to arbitrate all disputes have been given a broad blessing by the United States Supreme Court, which favors arbitration because there is a federal law saying so.  In the same case [AT&T Mobility v.  Concepcion, 131 S.Ct. 1740 (2011)] the Court blessed the practice of forbidding class actions on behalf of many injured parties, which is a shameful thing to forbid because otherwise miscreants go unpunished.  But there are arguments on both sides of those issues.  Where the contract calls for something truly outrageous (“Failing to make a payment means you will lose both your American citizenship and first-born child”) the courts will certainly strike down such clauses as unconscionable, and, if sufficiently upset, might even strike the whole contract out of legal existence.  In addition, many states have consumer practices statutes that forbid certain clauses or regulate them (warranty disclaimers, for example).

Professor Karl Llewellyn of the Columbia Law School was one of the great legal minds of his day and the author of many famous discussions of commercial problems. When he tackled the problem of unconscionability, he came up with his celebrated “true answer” to the issue of enforcing harsh clauses in contracts:

The answer, I suggest, is this: Instead of thinking about “assent” to boilerplate clauses, we can recognize that so far as concerns the specific, there is no assent at all. What has in fact been assented to, specifically, are the few dickered terms, and the broad type of the transaction, and but one thing more. That one thing more is a blanket assent (not a specific assent) to any not unreasonable or indecent terms the seller may have on his form, which do not alter or eviscerate the reasonable meaning of the dickered terms. The fine print which has not been read has no business to cut under the reasonable meaning of those dickered terms which constitute the dominant and only real expression of agreement.

Karl Llewellyn, THE COMMON LAW TRADITION: DECIDING APPEALS 370 (1960).  He added that someone signing an adhesion contract is doing something similar to putting one’s head into a lion’s mouth and praying it’s a friendly lion.
 


Court decisions on “I Agree” internet contracts don’t agree.  Compare Riensche v. Cingular Wireless, LLC, 2006 WL 3827477 (W.D. Wash. 2006) (no unconscionability if consumer clicked on “I Agree” icon), with Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D. Pa. 2007) (finding unconscionability in spite of consumer’s clicking “I Agree” icon).  The differences appear to be between judges who are strict constructionalists and who seem to think it’s still the 19th century when contracts were truly negotiated and they respect absolutely the old legal maxim that “those who ignore the duty to read are bound by what they sign,” contrasted with judges who recognize that in the 21st century contracting requires adherence to dictated terms over which one has no choice at all.  The latter judges are willing to police whether the lion gets to swallow users whole or not.
 


So what do I do?  Like most people on the planet, I grudgingly yield to the inevitable and don’t even attempt to read the morass of legal confusion that masquerades as a negotiated contract.  As I put my head into the lion’s mouth I’m willing to endure some saliva dripping on my clothes and just hope that there will be no teeth chewing on important parts of my body.
 
 
 

Related Posts:
“How I Became a Law Professor,” January 27, 2010
“I Threaten To Sure Apple Over an iPad Cover,” April 8, 2011
“The Payment-In-Full Check: A Powerful Legal Maneuver,” April 11, 2011
“What Non-Lawyers Should Know About Warranties,” October 11, 2011
"How To Write an Effective Legal Threat Letter," October 19, 2011
“Mortgage Foreclosures, Missing Promissory Notes, and the Uniform Commercial Code: A New Article,” February 11, 2013
“Legal Terms You Should Know,” September 13, 2013
“How To Respond to a Legal Threat.” March 29, 2014 
"A Guide to the Best of My Blog," April 29, 2013

Monday, August 18, 2014

Five Judges Have Stopped All Further Progress on Gay Civil Rights Legislation



[The three women on the Court dissented]
 
In Burwell v. Hobby Lobby, decided by the United States Supreme Court a few months ago, the Court’s five conservative—and Republican—justices (over the vigorous dissent of the four liberals) decided that a corporation like Hobby Lobby (the stock of which is owned by a very religious family) is protected by the First Amendment’s freedom of religion clause and thus could use religious beliefs to object to funding family-planning coverage for its employees.  Corporations are now “people” too and religious corporations can go to church just like other U.S. citizens! This was a natural enough extension of the Court’s infamous decision in Citizens United v. FEC (2010), which declared that corporations were “persons,” thus entitling them to the full protection of the U.S. Constitution (with freedom of speech permitting them to spend as much money as they like: influencing elections, flooding us with billions of dollars to promote campaigns and drowning out the speech of ordinary individuals).  Whew!



The swing vote, of course, in both decisions was that of the most powerful judge in the world, Justice Anthony Kennedy (second from the right in the picture above), who sometimes votes with the liberals and sometimes with the conservatives, allowing him to decide all the important controversial cases.  He’s been terrific on gay issues while on the bench and authored last year’s groundbreaking Windsor decision which forbade the federal government from discriminating against gay people when it came to the recognition of their marriages.  That case said nothing about whether the states are required by the constitution to recognize the rights of gays to marry, an issue the Court will have to decide by the end of next June.  I’ve predicted in the past (and stand by the prediction) that the Court will come out in favor of gay marriages nationwide, a wonderful result and a big moment in gay history.  [See “Gays Will Be Able To Marry in All States By July of 2016 (and Maybe 2015),” February 14, 2014, http://douglaswhaley.blogspot.com/2014/02/gays-will-be-able-to-marry-in-all.html ]

It would doubtless surprise Justice Kennedy and, indeed, all of the four other conservative Justices who joined in the Hobby Lobby majority that one probably unintended result of the decision is that no more gay rights legislation protecting the LGBT community from discrimination in employment, housing, or public accommodations is ever likely to pass in the future.

As I’ve also noted before it’s perfectly legal in many states to discriminate against gays.  [See “Is It Legal To Discriminate Against Gay People?” March 17, 2014; http://douglaswhaley.blogspot.com/2014/03/is-it-legal-to-discriminate-against-gay.html ].  Recently in Pennsylvania, where it has recently become legal for gays to marry, lesbian couples have been turned away from a bakery that refused to make them a wedding cake and a bridal shop that refused to sell them gowns in both cases based on the owner’s religious beliefs that serving gays would cause the owners to be denied entry into heaven; see http://www.huffingtonpost.com/2014/08/14/pennsylvania-cake-pros-gay-wedding-_n_5678410.html   Those actions are perfectly legal because Pennsylvania has no state law granting civil rights protection to gays from such discrimination (some of the cities in the state have enacted such protection as municipal ordinances).
 
Ah, but you might ask, with the mood of the country now heavily favoring the rights of gays isn’t Pennsylvania and many other states likely to enact such protection?  No, they aren’t, as I’ll explain in a moment.  Nor is the federal government likely to change existing civil rights laws to add protection for gays.  Those happy days are over, and as an old gay activist this depresses me.  We worked so hard in Columbus to get a civil rights ordinance on point and swore that the State of Ohio would someday follow, but that latter part is wrong. [See “The History of Gay Rights in Columbus,” June 4, 2012, http://douglaswhaley.blogspot.com/2012/06/history-of-gay-rights-in-columbus.html ] Here’s why:

The current federal Civil Rights Act prohibits (among other things) discrimination in hiring based on various characteristics such as gender, race, religion, etc.  Since 1974 there’ve been efforts in Congress to amend the Civil Rights Act to add sexual orientation and gender identity to the list.  The current version of the proposed legislation is called the “Employment Non-Discrimination Act” [ENDA] and, surprisingly, it passed the Senate last fall with bipartisan support, but has no chance of passage in the current Republican-controlled House of Representatives.  No matter, because many LGBT and liberal organizations [The American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, Lambda Legal, the National Center for Lesbian Rights and the Transgender Law Center, but, notably, not the Human Rights Campaign] have withdrawn their support of the current version of ENDA because the Hobby Lobby decision sparked the addition of an amendment that would exempt organizations who discriminate on the basis of religious beliefs.  That’s right: any employer who claimed a religious aversion to homosexuality could post signs saying “No Homos Need Apply.”  We all know that a version of ENDA that exempts religious decisions to hire or fire gays would be a toothless tiger, and that’s led liberal groups to strip away their endorsement of ENDA.

The hope is that future versions of ENDA at both the federal and state level will exclude such an exemption (except as to hiring by religious organizations, say a church, themselves), but you might as well kiss that vain wish goodbye.  Every time some version of ENDA is proposed hereafter there will be an immediate amendment offered to adopt a “religious beliefs” exception, and what politician, federal or state, ever hoping to be reelected will be willing to vote against religious beliefs?



So I’ll say it here: attempted gay rights legislation at all levels is dead unless it gives religions a pass and allows them to hire or fire gays at will, forbid them housing, or deny them the right to buy wedding cakes (“public accommodations”).  Indeed in the near future there might be major pushes to add religious exemptions to existing statutes and ordinances protecting gays from just such miserable treatment.



The Hobby Lobby decision has opened the door to the argument that people (including corporate people) have a right to discriminate against anything or anyone that violates their religious beliefs.  I’m no constitutional law scholar (my field is commercial law), but it will be interesting to see if the Court now says, for example, that a Muslim-run organizations may refuse to hire Jews since the Quran entombs hatred of the Jews as a basic tenet.  Surely the Court won’t go that far, but how do we tell the Court’s Hobby Lobby blessing of a religious objection to abortion (a constitutional right since Roe v. Wade) from a religious objection to dealing with groups who are sinners in the texts of various sacred books.  [See “Does the Bible Really Condemn Homosexuality?” June 29, 2014; http://douglaswhaley.blogspot.com/2014/06/does-bible-condemn-homosexuality-and.html  ]

When the five conservative Republicans (all Catholics, by the way) sided with Hobby Lobby’s refusal to obtain insurance to protect their employees’ family planning needs, didn’t the Court see that this can of worms includes some very destructive snakes?  One of those serpents— damn it!—will devour the hopes of gays for protection they so dearly need.
 
A Religious Business Belief To Pray For
  
Related Posts:
“A Guide to the Best of My Blog,” April 29, 2013