The Role of Judges in Democracy: How Much is Enough?

Gay Marriage has been hailed as the latest rung in the aspiration for civil rights. It has also been used rhetorically as evidence that social mores have become anarchist; evidence that the world is no longer slouching, but on a run-away train toward Gemorrah.

Last Month the Iowa State Supreme Court unanimously ruled that the State must recognize same sex marriages under that state's Constitution. But it went beyond that. The Iowa court said "Basic fairness" requires that same-sex couples be afforded the same rights as couples who marry of opposite genders.

California's Supreme Court came to a different conclusion earlier this week. In California, the Court affirmed a propositional amendment to that state's Constitution restricting the definition of marriage to opposite-sex couples. That Amendment was enacted by majority rule of California voters last November.

While the media generally likes to concentrate on the trivial aspects of the juxtaposition of these decisions: Heartland Iowa takes a liberal view and sophisticated California taking a more Conservative approach the two opinions play on the nature of courts and the role judges in a democratic society. Specifically, what role should they have in balancing civil rights against majority rule.

There are some parameters we all agree on, or at least the vast majority. A proposal reinstating slavery would be viewed as beyond the pale. So would an amendment restricting inter-racial dating or a law providing that only Christians could be elected to public office. But with Propostion 8, it has become a legitimate question as to if there is no law specifically speaking to a rule, can the public invoke law at will? For instance, can the public in California prohibit circumcision, a requirement of Judaic and Muslim faith, on the grounds that it is cruel to children? Could the public forbid illegal immigrants from seeking medical care for non-emergency procedures?

The conventional wisdom from the various media is that Iowa's Court displayed a pragmatism of an aspiring middle America while California's court was hopelessly out of touch with the times. Putting aside the media's general sympathy towards liberal positions (excepting talk radio), the facts on the ground are a bit more fuzzy.

There is already a grassroots effort in Iowa to overturn that Court's decision by means of a Constitutional amendment in a similar vein to what a majority of California voters did last November. Iowa does not allow propositions to the Constitution in the way California, does but the issue will likely come up in the State legislature. Meanwhile in California the Court's decision almost read like an apology to the Plaintiffs.

The California Court made a narrow ruling. It said that gays who were married prior to the election of Proposition 8 would remain married because "it would be unfair and might even invite chaos to nullify marriages those couples entered into lawfully."

California's Supreme Court did not decide whether gay marriage is proper or not, it simply deferred to the democratic process.

In essence, this leads to all other sorts questions. Should civil rights ever be subject to majority rule? Should a Constitution be able to be amended by the mandate of a majority of votes? If civil rights and the Constitution is subject to what a majority of what citizens says it is, what is the purpose of even having a judicial branch of government? What is the proper role of judges?

The simple way of looking at Courts and the philosophy of judgment is by pitting the doctrine of "strict construction" vs. "living Constitution." That is, the idea, that the law is what the law says and what the law says is what was written and what it meant at the time it was written vs. the idea that the drafters of law could not have anticipated what society would be today and the law needs to be interpreted towards the needs and just goals as exist now.

The convention way to look at it is Conservatives are strict constrictionists while liberals believe in a liberal constitution, but in reality it is more complex than that. We saw that last month in a Supreme Court ruling on a 4th Amendment case involving the search of an automobile (see exparte advocate entry of April 23, 2009), the 4th amendment provides very liberal protections and a strict constructionist reading goes against the natural conservative proclivity in favor of deference to law enforcement.

With President Obama's proposal to nominate Judge Sonya Sotormayer to the United States Supreme Court, as a nation, we will be exploring these convergent philosophies over the next few months. While the issues involved are political, they are so much more, they say what we are as a nation, and what we aspire to be. If Judge Sotormayer was on the bench in California how would she have decided the Proposition 8 question before the Court? How active a role do we want judges to take in dealing with societal issues? Should there be a balance? And if so, what should that balance be?

A $5-million Accidental Advertsing Campaign

I love First Amendment cases. I truly do. First of all, the First Amendment is the most basic, and yet complex, the most fundamental, but also expansive law in the American Constitution. The right to Free Expression is the of paramount importance in a democratic society and it theoretically encompasses everything: How we express ourselves, what we say, what we do, what we wear. It includes the right to be heard and also the right not to speak. However it is not unconditional. Freedom by necessity has its limits, or as the late Supreme Court Justice, Oliver Wendell Holmes, Jr., put it "The right to swing your fist, ends at the point of another person's nose."

In 2007 American Apparel posted two advertisements featuring a clip of Woody Allen from his 1977 film Annie Hall depicting Allen in Chasidic garb with a long beard, side curls, and a black hat. It depicted Yiddish text as a caption using a phrase meaning "the holy rebbe." . Woody Allen did not give his permission nor was he paid for the use of his face. Last year Woody Allen sued on the grounds that his image was used without his permission. American Apparel responded that the ad was not meant to sell clothing but as a medium of expression. American Apparel argued in addition that Woody Allen's image is so tarnished by the scandal involving his step-daughter for all intents and purposes, Soon-Yi Previn, that his value as a spokesperson is significantly diminished.

The use of someone else's image can be a tricky area. The law recognizes the doctrine of "Fair Use" which essentially means that a person can be depicted without permission if the main purpose is criticism, comment, or news reporting. This is how the nightly news gets away with as much as they do. (Let's leave aside the role of ratings, how they correlate with sensationalism and how that generates advertising revenue for another day).

American Apparel tailored their answer as a First Amendment claim. Woody Allen's face was being used for satirical comment, not to sell clothes. A perplexing argument considering that his face was posted on billboards above major roadways in California and New York. I don't know how much A.A. paid for the ads, but I'm sure it was an awful lot of money for a public service announcement tailored not to make money.

In the end, there was much chest beating. There was much posturing. There were threats. Mia Farrow, Woody Allen's ex-girlfriend/psuedo-wife would be called as a witness. Nothing to strike fear like a scorned ex whose daughter is now the wife of the witness. But finally American Apparel folded using the old "My s lawyer made me do it" excuse. They settled the case for $5-million this past Monday.

Yes, it's true his insurance company presented the defense and paid the lawyer. American Apparel's lawyers surely made a recommendation. They would not be doing their job had they not. I'm sure American Apparel's CEO, Dov Charney, was told in effect, 'Woody Allen sued for $10-million and if we present this case to a jury he is likely to win and get fees and costs. Plus there will be a judgment against you.' But neither the lawyer nor the insurance company forced American Apparel to take the deal and Charney had to sign off on it. That's the way it works. Now, I don't know what American Apparel's insurance policy was, but if any judgment had come out in excess of the the company's policy, American Apparel would need to fork up the difference. So in the end the settlement, like the initial advertisement was American Apparel's business decision, and their business decision alone.

After all the posturing this this case had as much to do with the First Amendment as arson has to do with the freedom of expression of a pyromaniac. Dov Charney loves publicity. He built his company on it. He gambled that either Woody Allen was too publicity shy, tarnished or pre-occupied to challenge him. He bluffed, he lost...but he still got publicity and plenty of it, all across the nation...and for that he hasn't paid a dime. So one question remains: Was the advertisement and subsequent settlement worth it? Was this kind of saturation worth a $5-million pay-out?

Losing the Genetic Lottery

Jim Crow is alive and well. Not in Alabama, Georgia or Mississippi, but apparently in the Deep North; New Haven, Connecticut, specifically. The catch is, it's not African-Americans who are being held back. Rather it is a group of firefighers who had the misfortune of being born white. That is the plight of Frank Ricci.

His case was argued in the United State Supreme Court last week. Ricci, is a firefighter, a white firefighter. Or considering everything must be categorized these days, he is a white firefighter with a learning disability. By all accounts Ricci is good at his job. He has been with the New Haven fire department for more than 11 years and has a spotless record.

He decided to seek a promotion to Lieutenant. Because he is dyslexic, he quit a second job in order to have more time to study for the Lieutenant's exam. Additionally he paid $1,000 out of pocket for study-aids. And it seemed his efforts paid off. There were eight vacancies and 77 people took the exam. Ricci had the 6th highest score. Only 18 of the 77 candidates passed the test.

Problem was, of the eighteen passing grades, 17 of the applicants were white, and the other was Hispanic. None was African-American, and that was what New Haven was looking for. New Haven had a quandary. Their goal was diversity, but based upon the exam, diversity could not be achieved on merit, at least not racial diversity. No telling if there were any other firefighters with learning disabilites who passed the exam. But academic diversity was not what New Haven was looking for, so as the saying goes, New Haven threw out the baby with the bath water. Officials declared the test "biased"; apparently a catch all word meaning it did not achieve the desired results and no one was promoted.

Since no one was promoted, no one was harmed. That was the crux of New Haven's legal argument: Ricci was not discriminated against because everyone suffered equally. Apparently if we all fail, racial harmony is achieved. Failure is the great equalizer.

Problem is, and New Haven does not dispute this, if Ricci was African-American he would have been promoted. In other words, the test was rigged and when the desired results were not acomplished, New Haven decided the best option was to hurt those who succeeded, under what they were told were the rules. Frank Ricci did nothing wrong except lose the genetic lottery.

None of this is to say that diversity is not a worthy goal. New Haven is not alone in desiring that a cross population of races, and nationalities serve a diverse population. Such a goal is appropriate and worthy. But the outcome is meaningless if the results are fixed. As Chief Justice John Roberts put it last week, "Should the government get do-overs until (the result) comes out right?"

The original purpose of Affirmative Action was to root out discrimination, all discrimination. New Haven's answer hardly seems an effective way of achieving the goal. There is a eloquent simple saying I learned long ago, perhaps it still applies today. "Two wrongs don't make a right." Someone should tell the City of New Haven. I hope the Supreme Court does. Ricci v. DeStefano should be decided next month.

UPDATE: As predicted, this week Federal Prosecutors asked that charges against Steven Rosen and Keith Weissman be dropped when they determined they would not be able to successfully convict the pair for espionage. (See posting of 3/17/09). Prosecutors cited a judicial ruling that the government would have to prove that Rosen and Weissman intended to hurt the United States by passing along unauthorized information as an impossible hurdle to meet. The defamation case is proceeding.