The University of Chicago Law School Faculty Blog

Remembering Judge Terence Evans

  One Sunday morning in the fall of my third year of law school, Judge Terence Evans called to offer me a clerkship in his chambers for the following year.  A judge on the 7th Circuit U.S. Court of Appeals, Evans was calling from his office in Milwaukee, but he got interrupted and had to put me on hold.  After coming back on the line, he explained that his wife had called to remind him to pick up beer for their cookout that afternoon.  Here, plainly, was one federal judge who didn't take himself too seriously.

Judge Evans, who had recently taken senior status, died last night at the age of 71.  He had been in good health, playing golf (his passion) just a few weeks ago, but declined rapidly after being diagnosed with a chronic lung disease.

Judge Evans was a story teller, but even more so, a man who inspired stories that others would tell about him with affection.  He was a great favorite of clerks and staff attorneys in the 7th Circuit's Chicago offices, always quick with a wry smile, a quip, or an opinion about sports.  He was a Milwaukee guy through and through, a widely known and well-liked figure in the city where he had grown up, gone to college and law school (both at Marquette), practiced law, and risen through the state and federal judiciaries.  The one all-office lunch we had during my year with him took place at a divey Mexican joint he was fond of for some reason.

He was a private and modest man, not the sort of judge who organized reunions for former clerks and expected Christmas cards and wedding invitations.  But he was informal and someone, as Chief Judge Frank Easterbrook remembered him, with a healthy sense of joie de vivre.  He dressed well and had an elegant mane of white hair.  Once I sent him an email letting him know his barber Katie had called to confirm an appointment.  He wrote back: "I call her my 'stylist,' not my 'barber.' I do have some vanity!"  He was a huge fan of Larry David and, hoping his appreciation would rub off, would leave selections on my desk from his prized collection of Curb Your Enthusiasm DVDs.

Judge Evans loved to lace his opinions with whimsy.  In a First Amendment case involving the University of Illinois mascot Chief Illiniwek, he offered the reader a "detour" (for a substantial chunk of the opinion) "for a brief look at college nicknames and their embodiment as mascots," and awarded Best College Nickname to the University of California-Santa Cruz.  ("Imagine," he wrote, "the fear in the hearts of opponents who travel there to face the imaginatively named 'Banana Slugs.'")  In a decision refusing mercy to an attorney who had missed a crucial filing by one day, Evans began the opinion by quoting from  Dinah Washington: “What a diff'rence a day makes ... twenty-four little hours.”  The 2005 opinion in which he mentioned rapper Ludacris and explained the proper use of the word "ho" became legendary.  (Once, though, when I tried to work in some similar witticism at the end of an opinion draft, he told me that the pop culture references made it into the Federal Reports only if he thought them up.)

Judges on the Seventh Circuit mostly fall into two groups: former academics and former district judges. Evans was the latter.  His judicial philosophy, to the extent he had one, was pragmatic.  He liked to hire clerks with journalism backgrounds because he favored plain writing and clear legal explanations.  On the appellate court, he retained the instincts of the district judge he had been for many years.  He was inclined to defer to district judges when doing so was reasonable, and he liked to give them little shout-outs in his opinions when he thought they had gotten something right.  He could be privately impatient with colleagues (or clerks) whom he thought were getting too deep into the weeds of legal theory.  He was universally liked by lawyers who practice regularly at the 7th Circuit, who appreciated his civility toward them.

Evans was a moderate Democrat, no ideologue but conscious and proud of his working-class roots.  The last opinion I drafted for him was a rare dissent in a case against a credit card company that imposed fees in a manner that seemed calculated to assure the poor cardholder would never get out of debt.  Judge Evans protested the court's dismissal of the plaintiff's claims, which he saw as a victory for a greedy corporation over the little guy.  The other two panel judges were Joel Flaum and William Bauer, both of whom Evans loved and admired.  So there was no acrimony (there never could have been with Judge Evans, or any of those three), only some good-natured joshing in the hallway after the judges' private conference. 

Steve Sanders

 

 

 

Obama and same-sex marriage: the lawyerly straddle continues

President Obama's remarks last night to a gay/lesbian fundraising event must have disappointed his supporters who have grown tired of straddling and rhetorical games on the subject of marriage equality from someone who once called himself a "fierce advocate" for gays and lesbians.

To be sure, this administration has accomplished far more to advance gay and lesbian equality than any other: the repeal of Don't Ask, Don't Tell; the bold decision not to defend the federal Defense of Marriage Act (DOMA); a federal mandate that hospitals allow visitation rights to gay partners; passage of a new hate crimes law. Much of this policy and legal work has been creative and courageous.

And yet, speaking in New York, where gays and other progressives are on the one-yard line of legalizing same-sex marriage, Obama could not bring himself to join or even clearly endorse their fight. The best he could do was praise marriage supporters for advancing "debate" and "deliberation about what it means here in New York to treat people fairly in the eyes of the law."  Grappling with issues that are "tough" and "emotional" will, he said, help assure that "slowly but surely we find the way forward."

This sort of circumlocution is one of the skilled speechwriter's dark arts: avoiding candor and commitment while bathing your audience in seemingly empathetic platitudes. To say you believe your friends are "doing exactly what democracies are supposed to do" is not the same as declaring your solidarity with the moral purposes of their struggle. It is a way of flattering them because you hope they'll still like you (and donate time and money to your campaign) while also staying above the fray.

The president said he "believe[s] that gay couples deserve the same legal rights as every other couple in this country." But this is lawyerly precision in the service of straddling. He would not say that gay couples deserve "marriage." Obama wants to "keep on fighting until the law no longer treats committed partners who’ve been together for decades like they’re strangers." But this is more political circumlocution. What gays want is simpler but more profound: for their relationships to be regarded as equivalent in the eyes of the law to those of straight people. There is a subtle but important difference between having "the same legal rights" as someone else and having actual equality.

Civil unions, the vehicle Obama supports to provide those "same legal rights," are not the same as marriage.  As one commentator has written:

There are legal reasons why they're not equal -- marriage is recognized in every state and indeed every country, while civil unions aren't; so the rights and responsibilities don't necessarily travel with you when you leave the state that granted them.

There are emotional reasons -- marriage is an institution/ ritual/ relationship that has existed for thousands of years, one that has tremendous resonance in our culture in a way that civil unions simply don't. And there are moral reasons -- as history has born out, separate but equal is pretty much by definition not equal.

And as David Buckel of Lamdba Legal writes:

For people who would choose to marry, anything other than marriage has to be explained. Only the word married conveys the universally understood meaning applicable to many of our families — a meaning unmatched by any other word. By imposing civil unions and barring marriage, even if the two statuses offer the same benefits and obligations on paper except for the powerful “M” word, the government is forcing same-sex couples to explain the difference in theirdaily lives. They lose the respect and dignity they believe their commitment deserves.

Obama's clearest, most unequivocal statement on marriage remains the views he expressed to pop preacher Rick Warren during the 2008 campaign: “I believe that marriage is the union between a man and a woman. Now, for me as a Christian…it is also a sacred union. God’s in the mix.” If this remains Obama's true belief, as opposed to another posture, then ironically he may have more political and moral kinship than he might like to admit with those who wrote and pushed through DOMA in 1996. DOMA's sponsors asserted that among the purposes of their legislation was "defending and nurturing the institution of traditional, heterosexual marriage," because such family configurations had been "ordained by God."

Let's be candid. Obama faces a nihilistic political opposition that has demonstrated it will say anything in order to demean and defeat him, whether true or not. Does he really think that if he technically does not endorse same-sex marriage, the people who fight against gay marriage will keep an open mind about voting for him? Or, at a time when a majority of Americans now support marriage equality, does he really believe that this kind of political tapdance will be alluring to "moderates"?

Obama reminded his audience Thursday night that he had taught constitutional law (it was at this law school, no less), and that this experience led him to conclude that DOMA was unconstitutional. But opposing DOMA -- which concerns whether the federal government should merely recognize extant same-sex marriages that have been created by the states -- is not the same thing as declaring that you believe it is legally just and morally salubrious for states to provide equal marriage. As a former con law teacher, Obama also should know that when people are seeking full legal equality in a civil institution, "separate but equal" compromises--the kind of compromise he continues to endorse regarding same-sex marriage--have been rejected since Brown v. Board of Education more than half a century ago as not only unconstitutional, but illusory and cynical as well.

Steve Sanders

 

 

Paul Clement, DOMA, and the role of lawyers for unpopular causes

Paul Clement is universally regarded as one of the nation's smartest, most experienced, and most effective Supreme Court and appellate lawyers.  He catapulted into the first tier of that group through his service from 2005-08 as Solicitor General in the Bush administration.  I once heard John Paul Stevens, then still a sitting Supreme Court justice (and one who frequently voted against the Bush administration's legal positions), praise Clement at a bar association dinner as one of the best SG's who had ever served.

Clement made news earlier this month when he signed on to represent the House of Representatives in defending the federal Defense of Marriage Act (DOMA) against several court challenges.  DOMA bars federal recognition of same-sex marriages, and the Obama administration, which normally would be charged with defending an act of Congress, has concluded that DOMA is unconstitutional.  (I have previously written about that development here.)

Today, Clement made news again when his law firm King & Spalding, under pressure from gay-rights and other progressive groups and commentators, asked to withdraw from its defense of DOMA, and Clement then resigned in protest of his firm's decision.

For those of us who believe the law requires marriage equality for gays and lesbians, the firm's decision to drop the DOMA matter is indeed, as Ben Smith of Politico writes, "a real victory for supporters of same-sex marriage -- and mark[s] what seems like real marginalization for its foes."  But as a lawyer who recently worked in the Supreme Court and appellate practice group of a major national law firm, I've found myself uncomfortable with the demonization of Clement and K&S and with the insistence by some gay-rights supporters that defending DOMA's constitutionality is not only legally wrong but morally unconscionable.  Those who would label lawyers like Clement as (at best) amoral mercenaries do not understand how the world of public-law appellate litigation works. 

I don't know Clement well; we've talked professionally on a couple of occasions, and I had the experience of litigating and arguing against him in a Supreme Court case two years ago.  In that case, my firm represented a county government that was being sued by two men who claimed they had been the victims of misconduct by county prosecutors, resulting in alleged wrongful convictions and imprisonment.  Clement represented the plaintiffs pro bono at the Supreme Court.  The case settled before decision, and the plaintiffs received $12 million.

I have no first-hand information about how Clement got involved in that case.  My best guess is that he took it not because he is inherently skeptical of prosecutors and government power (his legal career and political credentials suggest otherwise) but because it was a high-profile case involving interesting, unresolved questions of law.  It is not uncommon for law firms that specialize in Supreme Court practice to take cases pro bono or for reduced rates as a way of maintaining name recognition and stature in that small and competitive niche of legal practice.  (Several prominent Supreme Court practitioners wrote amicus briefs pro bono supporting our client's position in the matter I argued against Clement.)

Similarly, I have no first-hand information about Clement's decision to take on the defense of DOMA (for which King & Spalding was going to get paid, albeit at a reduced rate).  Clement is certainly a conservative, and he always seemed quite comfortable defending the Bush administration's policies as SG.  But I think it would be wrong and unfair to assume he must be some sort of anti-gay ideologue.  I have no doubt that some of his clients in Congress might fairly be described that way.  But every constitutional lawyer knows there is a basic difference between whether something is sound policy, and whether it violates the Constitution.  Clement's job in defending DOMA (he reportedly will continue the representation through another law firm) is about the latter question. 

In a partnership like K&S, a partner of Clement's stature ordinarily has a great deal of latitude over the matters and clients he chooses to accept.  Although apparently that process somehow broke down in this instance, my guess is that Clement -- who would naturally gravitate to a high-risk, high-profile case, and who has vast experience defending Republican policies before federal courts -- took the DOMA cases for their professional and intellectual challenges and rewards, not because he is some sort of right-wing true believer.  It's worth remembering that until two months ago, the Obama administration's lawyers also defended DOMA.  DOMA may be an easy question as a matter of fairness and equality, but its status as a matter of constitutional law -- particularly whether it should get heightened scrutiny -- is not a slam dunk, and its opponents would be well advised not to confuse the two issues.  DOMA is not yet before the Supreme Court, but Clement almost certainly calculated that it will get there eventually.

In the end, whether DOMA is held unconstitutional likely will have more to do with the ideological dispositions of the judges who decide these cases, not the lawyers who argue them.  In the meantime, I'm inclined to think the Los Angeles Times was correct when it editorialized last week that

the suggestion that it’s shameful for Clement or his firm to do so misunderstands the adversarial process. For one thing, with sharp-witted counsel on both sides making the strongest possible arguments, it is more likely that justice will be done. For another, a lawyer who defends an individual or a law, no matter how unpopular or distasteful, helps ensure that the outcome is viewed as fair. If DOMA is struck down, the fact that it was defended effectively will make the victory for its opponents more credible.

I also think Clement was correct when he wrote in his resignation letter that his "thoughts about the merits of DOMA are as irrelevent as my views about the dozens of federal statutes that I defended as Solicitor General," and that “[d]efending unpopular positions is what lawyers do.  The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.”

Steve Sanders

 

DOJ Abandons Defense of the 'Defense of Marriage Act': First Thoughts

The Obama administration's announcement today that it will no longer defend the constitutionality of a key provision of the Defense of Marriage Act is a dramatic and completely game-changing legal decision. It is also the right one. 

Five states and the District of Columbia currently license same-sex marriages, and more will follow. New York and Maryland recognize such marriages from their sister states, even though they do not yet perform them.  Yet DOMA forbids the federal government from recognizing these marriages. This discrimination affects same-sex couples on matters ranging from tax-filing status to a same-sex spouse's eligibility for burial in a federally funded veteran's cemetery. The Government Accountability Office has documented "1,138 federal statutory provisions . . . in which marital status is a factor in determining or receiving benefits, rights, and privileges."

The lynchpin of today's announcement was the Justice Department's conclusion that government discrimination against gays and lesbians requires heightened scrutiny under the Equal Protection Clause (whose principles apply to the federal government through the Fifth Amendment's Due Process Clause). Courts grant a presumption of constitutionality to most laws and review them under only "rational basis" scrutiny. But the DOJ concluded that classifications based on sexual orientation are inherently suspect. Following established caselaw, the DOJ examined factors for heightened scrutiny and concluded that it should apply here, for four reasons: 1) there is "a significant history of purposeful discrimination against gay and lesbian people"; 2) "a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable"; 3) gays and lesbians have "limited political power" to protect their interests through the majoritarian political process; and 4) "there is a growing acknowledgment that sexual orientation 'bears no relation to ability to perform or contribute to society.'"  This analysis potentially has implications not just for marriage, but for all government discrimination against gays and lesbians.

Under equal protection principles, laws are not constitutional or unconstitutional in some absolute sense. When a court applies heightened scrutiny, the government is required to advance "important" reasons for keeping the discrimination in place. If the court accepts the reasons, the law is constitutional; if the reasons are insubstantial, grounded in animus or stereotypes, or only weakly connected to some important government objective, the law fails.  

There is a strong, sound tradition of the executive branch defending acts of Congress, even when the administration in power disagrees with them. But it is completely unedifying to see the government's lawyers advance so-called "important" reasons for a law when those reasons are in fact outdated, illogical, hypothesized, or invented post hoc in response to litigation. This is what happened in the case last year where a federal judge struck down the military's Don't Ask, Don't Tell policy.  The judge pointedly noted that it was unavailing and disingenuous for the government to argue that the law advanced "important" interests at the same time that the President and the Chairman of the Joint Chiefs of Staff were publicly asserting just the opposite.

After initially defending DOMA in various ongoing lawsuits, the DOJ has decided it will not engage in this sort of flawed legal argumentation. It is admitting that no important reasons exist for the federal government to refuse to recognize the perfectly valid marriages of same-sex couples from Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and our nation’s capital. For the purposes of its own laws, the federal government has always followed the determination of a state as to whether a person was legally married. It should be no different for same-sex couples.

To argue the contrary, the DOJ would have had to rely on DOMA's 15-year-old legislative history. The 1996 House committee report on DOMA is a remarkable period piece, full of homophobic rhetoric dressed up as public policy arguments that no serious national politician could get away with today. It decries an "orchestrated legal assault being waged against traditional heterosexual marriage," and asserts that Congress must respond by standing up for "traditional notions of morality." Or, as the DOJ puts it more delicately, "the legislative record underlying DOMA's passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships--precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against." The DOJ commendably decided it "cannot defend [DOMA] by advancing hypothetical rationales, independent of the legislative record."

The DOJ's decision is principled, and its legal explanation is well-reasoned.  Today's announcement is the beginning, not the end, of a fascinating new chapter in the legal and political debate over same-sex marriage. 

Steve Sanders