Supreme decision

The New York Times reports that the US Supreme Court has agreed to hear a set of legal challenges to states’ bans on performing or recognizing gay marriage. The decision reversed a trend of the court from earlier this term of letting these cases stand at the lower level. The difference this time was that the Court of Appeals in this specific case, the Sixth Circuit (MI, OH, KY, TN) recently upheld the constitutionality of the bans, thus creating a split at the appellate level.  The case will examine two basic questions. First, may a state ban gay marriage? Second, may a state refuse to recognize valid gay marriages performed in other states?

Most commentators expect the court to strike down the laws, thus bringing gay marriage nationwide (thus Texas). Two years ago, in the case Hollingsworth v. Perry, the court specifically punted on the issue and found the intervenor-plaintiffs lacking standing. And while Windsor v. United States, which struck down a portion of the Defense of Marriage Act, largely relied upon federalism, it has been used as the primary vehicle for lower courts to strike down bans on constitutional grounds.

Last year, a District Court Judge in San Antonio struck down Texas’ ban on gay marriage, and a bipartisan panel of the 5th Circuit recently heard that challenge –and appeared willing to uphold that decision. Texas Monthly has a truly great article on that. Accordingly, even though gay marriage may very likely come nationwide by the end of June, it could come to Texas even before then.

Prognosticating on Supreme Court decisions is truly a fool’s errand. But just to be silly, I tend to think that the case will be 6-3, with Chief Justice John Roberts and Justice Anthony Kennedy joining the four liberals. Kennedy’s reasoning in Windsor would just be contradicted at a very basic level if he upheld bans. And Roberts, obsessed as he is with the court’s reputation, simply could not be in the dissent.

Every Governor in the Sixth Circuit is praying tonight that their state’s case is not selected, thus enshrining their name for posterity as the Ferguson, the Board of Education of Topeka, the Heart of Atlanta Motel for this generation.

This case, be it Obergefell v. Hodges, Tanco v. Haslam, DeBoer v. Snyder or Bourke v. Beshear, will go down in history as one of the preeminent civil rights cases of our time. I say bring it on!

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Supreme Court blocks HB2

The US Supreme Court has ruled in emergency fashion that invaluable components of HB2, the omnibus anti-abortion bill that Wendy Davis famously filibustered, may be stayed until appeal. Specifically, a provision that required all clinics to adhere to the standards of ambulatory surgical centers was put on hold, as was another in part. The provision that requires abortion doctors to have admitting privileges at a nearby hospital was set aside specifically for clinics in McAllen and El Paso, though not the rest of the State.

The ruling was 6-3, with Chief Justice John Roberts and Justice Anthony Kennedy joining the four liberals. The three arch-conservatives, meanwhile, dissented from the order. As most will remember, a Federal Judge struck down these provisions a couple months back, but a Federal Appeals Court lifted the stay while it considered the appeal. The Supreme Court today merely reapplied the stay of the Federal District Judge in Austin who originally ruled the law unconstitutional, Lee Yeakel. Last year, Yeakel also ruled other provisions of the law unconstitutional, in a suit that similarly was reversed by the Appeals Court, although the Supreme Court pointedly chose not to reapply the stay in that case.

The implications here are, in a word, huge. As noted above, the Court has decidedly not stayed previous decisions, often 5-4 and along party lines. The two moderate conservatives on the Court, Roberts and Kennedy, have for some reason decided to shift views on the topic. Perhaps it is because the full effect of the case would reduce the number of clinics in Texas to just 5 or 6, a horrifying lower number per capita than other states included Mississippi, which has only one. Whatever the rationale, the implications of this decision are rather significant. For the first time, I am even cautiously optimistic that the law could be struck down by the Supreme Court upon final appeal (which is still likely years off).

Additionally, this development will likely take everyone’s mind off of that silly Wendy Davis ad, which has been eating up a significant portion of the 24/7 news cycle recently. As unfavorable to Davis as talking about abortion might be, I would still reckon it is leaps and bounds above the fallout over her wheelchair ad. Anyways, that’s my two-cents.

As for the clinics closed by this law, they can now re-open. Sagacious followers of the press will be familiar with stories of clinics closing overnight and cancelling dozens of appointments along with it. Those clinics can now re-open and, hopefully, women can continue receiving the healthcare options they need.

Liberty & Justice for all (in these States)

The New York Times reports that the US Supreme Court has decided to not hear appeals on three separate decisions by Federal Appeals Courts to throw out state-level bans against gay marriage. A 4th Circuit ruling against Virginia, as well as a 7th Circuit ruling against Indiana & Wisconsin and a 10th Circuit ruling against Oklahoma & Utah were all left standing after the Supreme Court refused to get involved. This, after the Court had stayed all the decisions for many months. In the succeeding weeks, gay marriage will also almost certainly begin in the six other States covered by the jurisdiction of those three Appeals Courts: New Mexico, North Carolina, Kansas, South Carolina, West Virginia and Wyoming. This means that 11 States in total will have legalized gay marriage in short order, bringing the total number of States with marriage equality to 30, plus the District of Columbia.

The ruling is somewhat noteworthy, as it has struck most of the typically followers of the Court by surprise. Only four Justices, of course, are required to grant certiorari to a prospective case. What this means is that inch-by-inch approach commonly employed by the liberals-plus-Kennedy coalition on the Court needed at least one more adherent to prevent certiorari from being granted. I talked about this incremental approach a little last year, when the Court struck down most of the Defense of Marriage Act. Justice Anthony Kennedy, the closest thing to a moderate on the Court, joined with the four liberal Justices to hand a nominal victory to the proponents of LGBT rights, but they stopped far short of decreeing gay marriage nationwide –something that many pundits, including myself, so desperately wanted.

Accordingly, with these cases steadily making their way through the legal system, most assumed that the Court would be almost compelled to hear them and render a definitive up-or-down decision on the validity of state-level bans on gay marriage. They thought wrong.

Justice Ruth Bader Ginsburg, arguably the most prolific liberal on the Court, has been a particularly vocal proponent of the so-called incremental approach. She has been a somewhat active critic of the Court’s expansive ruling in Roe v. Wade, arguing it went too far too quickly and polarized the nation into incessant gridlock. On this issue, she has argued, the court should allow time for public opinion to change. And it has changed, in fact, quicker than anyone would have imagined.

Unfortunately, the court’s decision (or indecision, I suppose) did nothing to rectify the bans still present in 20 States, including Texas. Earlier this year, a Federal Judge declared Texas’ ban on gay marriage (as well as civil unions) unconstitutional, but that decision has been stayed pending appeal. The Fifth Circuit Court of Appeals has apparently been taking their sweet time on that case, but given the extreme conservatism of that court, if there is ever an Appeals Court to affirm gay marriage bans, it would be one.

At that point, with Appellate Courts coming to opposite conclusions, the Supreme Court would almost feel compelled to step in. The four liberals, almost certainly, would want to hear the case at that time.

Without a doubt, I’m happy that the Court has decided to allow, even by omission, for marriage equality to go forward in nearly a dozen states. I just wish Texas was one of them. I think the next step will be a nationwide mandate requiring each State to recognize gay marriages performed elsewhere. At that point, the barriers preventing it from being performed within the State will become just too superficial to be defended.

Supreme Court does not block HB2

The Associated Press (via the Washington Post) reports that the Supreme Court has ruled, 5-4, to allow the omnibus anti-abortion law (HB2) to fully take effect before the Federal 5th Circuit hears the matter upon appeal early next year. The court’s opinion, written by Justice Antonin Scalia, held that the court could not overturn the Fifth Circuit unless they could decisively prove the court had erred. This opinion, however, was only joined by Clarence Thstaomas and Samuel Alito. Both Justice Anthony Kennedy and Chief Justice John Roberts, arguably the court’s most centrist Republican-appointees, did not join in the decision, leaving their opinions on the matter up in the air.

The law, which was famously filibustered by Wendy Davis, enacts four major provisions that all seek to reduce the numbers of abortions performed in Texas. Specifically, the constitutionality of the provision requiring abortion doctors to have admitting privileges at a nearby hospital was challenged in this case.

Click here to read more!

HB2 ruling stayed

The Texas Tribune reports that the Federal District Court opinion ruled unconstitutional on Monday has been stayed upon appeal by the Federal Appeals Court (5th Circuit). A three judge panel made up of Judges Priscilla Owens, Jennifer Elrod and Catharina Haynes (all appointees of George W. Bush) unanimously decided that the Court will hear arguments on the constitutionality of the bill in January. Until that time, however, a stay would be put on the District Court’s opinion, meaning those pertinent parts of HB2 would go into effect.

In granting the stay, the panel concluded that the provision fully overturned by the District Court –requiring abortion doctors to have admitting privileges at a nearby hospital– had a good chance of being reinstated on the merits of its constitutionality by the Appeals Court. In fact, the entire order read like a final judgment upholding the constitutionality of the law.

From here, opponents of the law are seeking two separate resolutions. First, they are hoping to see the law struck down as unconstitutional. Second, they are trying to see that, in mean time, the law does not go into effect. The paths for these two resolutions diverge a little bit at this point.

Click here to find out what we should do now and the implications this ruling is having already!

Fisher decision

The New York Times reports that the United States Supreme Court has come out with their ruling in the case of Fisher v. University of Texas. Many months ago, I wrote an op-ed on this topic. I wrote shortly before the Supreme Court heard arguments in the case, where I repeated the assertion made often in the media at that time, that a 5-4 division of the Court would have struck affirmative action as unconstitutional.

That was before the court heard arguments, however. As this decision approached, I became convinced the Court would render an exceedingly narrow opinion, pertaining only to Texas because of the 10% rule, in a nearly unanimous manner. For the first time in many, many years, I was right about one of these things.

The Supreme Court held 7-1 that the Fifth Circuit had, indeed, erred in their ruling. However, they attributed this to the Appeals court incorrectly not applying heightened scrutiny to UT’s affirmative action program.  6 Justices specifically held not to overturn Grutter v. Bollinger, the most recent Supreme Court opinion upholding affirmative action.

The Justices, for all intent and purposes, were actually divided into three groups. 5 Justices (Roberts, CJ., Kennedy, Breyer, Alito, Kagan, J.J.) held the opinion of the court, the thing with heightened scrutiny and what not. 2 Justices (Scalia and Thomas, J.J.) would have scrapped all affirmative action. Justice Ginsburg would have affirmed the Fifth Circuit’s opinion. The missing link, Justice Kagan, did not take part in the case since it was pending while she was the President’s Solicitor General.

This was especially interesting since Justice Kennedy was in the dissent of Grutter. While Chief Justice Roberts and Justice Alito were not on the Court in that year, Justices typically as conservative as them were dissenting in the previous case, like Chief Justice Rehnquist.

We’ll see how the Legislature deals with all this in 2015, though.

In re Fisher

My take on Affirmative Action, from my day-job at The Justice:

This past week was the 50th anniversary of integration at my hometown’s college, the University of Houston.

The college has seen a dramatic transition and is now the third most racially and ethnically diverse college in the nation, according to the U.S. News and World Report. This reversal is most likely the result of both changing demographics and affirmative action.

On the other hand, the diversity at the University of Texas is less likely to be attributed just to changing demographics: Since integration, the proportion of African-American students has risen to 20 percent, and the proportion of Latino students has risen to nearly 21 percent.

This blossoming of diversity is newly found in the South, finally taking part in the progressive tenants of the 20th century. However, these programs now face new challenges from our judicial system.

Tomorrow, the Supreme Court will hear oral arguments in the case of Fisher v. University of Texas, in what will, most likely, be a landmark Supreme Court decision. It  could outlaw all affirmative action programs used at public universities.

The Supreme Court is likely to strike down all affirmative action programs, as Justice Sandra Day O’Connor, the swing vote who saved the programs 10 years ago, is no longer on the court.

There is no doubt in my mind that affirmative action has tremendously changed this country for the better.

In my “Social and Political Philosophy: Democracy and Disobedience” course, Prof.Andreas Teuber (PHIL) mentioned that President Johnson once stated that affirmative action was necessary because students overcoming poverty and racism could not be accurately measured against those who did not have to face the same difficulties.

Johnson compared a person helped by affirmative action to a person who “has been hobbled by chains, and then when liberated, brought to the starting line of a race and told, ‘You are free to compete with all the others.’”

Indeed, the harshest critics of affirmative action today, in their blind hatred of anyone given the slightest push in college admissions, underscore why affirmative action is needed in the first place.

All too often, those who oppose affirmative action lay out the same story: The sad rich white kid was denied entrance into a prestigious university, as he may feel is his birthright.

Each of the plaintiffs of affirmative action court cases have sued institutions of higher learning after they were denied admission. These people assumed that the sole reason for their rejection was because they were white. 



Additionally, most detractors seem to fundamentally misunderstand how affirmative action programs function today.

While originally, universities may have had quota systems, these actions have been illegal for 34 years since the Supreme Court case of Regents of the University of California v. Bakke. Under current precedents and universities’ rules, race may only be considered a part of the larger picture in admissions decisions.

In reality, several other factors are considered during the college admissions process aside from grade point average, leadership and extracurricular positions. Personality (that is one of the reasons there is often an interview), background and profile are some of the additional factors.

Affirmative action’s opponents may not understand that wealth, familial connections and a stable home life have tremendous influence on a student’s grades throughout high school.

In 2010, Harvard University published an article alleging that the SAT was biased toward white people, citing cultural differences in the verbal section. Additionally, a 2009 study published by The New York Times showed an average difference in score of about 375 points between the lowest and highest income groups, most likely as a result of the ability to purchase preparation materials and tutoring.

Rather, the opponents of affirmative action should look at the positive effects of fostering diversity within the community. An article from The New York Times from this past Friday claimed that ending such programs, “would reduce the number of black students by about 60 percent, and the number of Hispanic students by about one-third, at selective private schools.”



Mayor Julián Castro of San Antonio, who delivered the keynote address at the Democratic National Convention, is another example of the positive attributes of affirmative action. While Castro had always stood out among his friends and family for being intelligent, he could not overcome the institutional bias of standardized testing.

According to a New York Times article from a few years ago, Mayor Castro’s SAT score was 1210 out of a maximum of 1600, well below the mean score for Stanford University.

He attributed his acceptance to Stanford to its affirmative action program. Granted, Castro boasted a stellar grade point average, but affirmative action was most likely at least partially responsible for his acceptance. It is worth noting that without any further help, he excelled at Stanford, was elected to the university’s student senate, and gained admission to Harvard Law School, this time in the median range of incoming students.

Nevertheless, opponents of the program find that any such boost is unfair. Conservative organizations and blogs such as Breitbart, Drudge Report, and The Washington Times have given Castro the pejorative, if not racist, title of “affirmative action boy” or “Mayor affirmative action.”
Such hatred underscores why the program is still needed today, just as it has been needed in the past.

I am sure there are many more like Castro whose stories have yet to be written. If our nation’s Supreme Court justices overturn the 30 years of precedent to outlaw affirmative action in public institutions, their stories may never be written.