Supreme Court Arguments in California and DOMA cases

Supreme Court Arguments in California and DOMA cases

This just posted on AOL. 

 

The arguments in the California case probably were the same  or very similar to the arguments in the case attacking the Defense of Marriage Act.  If DOMA falls, same-sex green card cases will be legal, which will be a huge development in USCIS jurisprudence.  Stay tuned:

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WASHINGTON -- Justice Anthony Kennedy on Tuesday called the prospect of same-sex marriage “uncharted waters” during oral arguments before the U.S. Supreme Court on Proposition 8, California’s gay marriage ban.

"And you can play with that metaphor," Kennedy said, continuing that in that consideration, "There's a wonderful destination" or "a cliff."

Prop 8 was the California ballot referendum passed in November 2008 that banned same-sex marriage, reversing by popular vote the state Supreme Court's decision just months earlier to recognize marriage equality.

Kennedy seemed genuinely interested in that “wonderful destination” and mortified by the prospect that there still might be a cliff. He acknowledged that while the social science on gay marriage is relatively new, there is an “immediate” legal harm to those same-sex couples who cannot be married. He said the voice of thousands of children of same-sex couples is an important aspect of the case.

“They want their parents to have full recognition and legal status,” Kennedy told Charles J. Cooper, who is representing supporters of Prop 8’s ban on gay marriage. “The voice of those children is considerable in this case, don’t you think?”

Kennedy also expressed deep doubts that Prop 8, and same-sex marriage bans in general, present "no harm of denigration" against gays and lesbians.

Before the justices even reached the merits of the constitutional case for same-sex marriage, Chief Justice John Roberts instructed both advocates to argue whether the parties defending Prop 8 had legal standing.

On this point, the court's liberal bloc -- Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan -- all appeared to believe that the Prop 8 proponents could not represent the state of California after Gov. Jerry Brown (D) and Attorney General Kamala Harris refused to defend the law.

Yet the court's Republican-appointed members -- Chief Justice Roberts and Justices Kennedy, Antonin Scalia and Samuel Alito -- seemed to agree with the California Supreme Court, which ruled that Cooper's clients could serve as representatives of the state's interest in the case.

When arguments reached the constitutional merits, the ideological alliances swapped.

"Can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them?" Sotomayor asked Cooper. "Is there any other rational decision-making that the government could make? Denying them a job, not granting them benefits of some sort, any other decision?"

And when Cooper said Prop 8 supports "responsible procreation," Kagan pushed back. "If you are over the age of 55, you don't help us serve the government's interest in regulating procreation through marriage. So why is that different?"

Yet the liveliest moments came when Scalia asked Ted Olson, President George W. Bush's solicitor general and the lawyer for the two same-sex couples challenging Prop 8, "When did it become unconstitutional to exclude homosexual couples from marriage? 1791 [when the Bill of Rights was ratified]? 1868, when the 14th Amendment was adopted?"

Olson pushed back against Scalia's originalist view, asking him in return, "When did it become unconstitutional to prohibit interracial marriages?"

"It's an easy question," Scalia said. "At the time that the equal protection clause was adopted. That's absolutely true. But don't give me a question to my question."

"There's no specific date in time," Olson ultimately answered. "This is an evolutionary cycle."

Alito's issues with Olson's argument were more pragmatic. "You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet," Alito said. "On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?"

Yet Ginsburg noted that one of the decisions Cooper was relying on in the case was written in 1971, when “same-sex intimate conduct was considered criminal.” In that case, Baker v. Nelson, the Supreme Court dismissed a Minnesota man's attempt to marry his male partner as lacking a "substantial federal question."

Kennedy also said he was “trying to wrestle with” whether a same-sex marriage ban should be viewed as a gender-based classification, calling it a “difficult question.”

By the end of the argument, it was clear that Kennedy believed the Prop 8 proponents had standing to sue, that same-sex couples had the right to marry and that such a right extended to all states. Yet that option -- making same-sex marriage a federal constitutional right -- compelled him to search for an escape hatch.

“Why [do] you think we should take and decide this case?” Kennedy asked Cooper.

By the time he asked that question at the very end of the argument, Kennedy had already sided with his four conservative colleagues (assuming the ever-silent Justice Clarence Thomas agrees with his more vocal colleagues) that Cooper's clients belonged in court, while also siding with his four liberal colleagues that the Constitution mandates marriage equality. Meanwhile, Kennedy rejected the 9th U.S. Circuit Court of Appeals' California-only reasoning, and both liberals and conservatives have lambasted the Obama administration's argument for a so-called "eight-state solution."

That leaves Kennedy, who holds the fifth vote in this case, facing down those uncharted waters. And if his own history on the court is any indication, he isn't as afraid of the deep end as he let on.

A decision in the case, Hollingsworth v. Perry, is expected by July.

This is a developing story and has been updated.

 

Immigration Reform -- Addressing the Most Pressing Problems

March 24, 2013

 

For those of us who have believed that Congress finally will do the right thing and pass common sense immigration reform, this looks more and  more like the year that it will.

 

The list of problems with the system is a large one, and not every problem can or will be solved by this Congress.  However, the ones that are hurting the most people are:

 

1.      Essential Workers (perform year round jobs that do not require a college degree) cannot apply for temporary visas

 

Since 1965, there have been no temporary visas for these workers.  Employers only can file green card cases for them, but there is a minimum six year backlog in the applicable category, so the green card system is useless.  In short, no visas for these critical workers who support our entire economy.

 

2.      No driver’s licenses for the undocumented, except in about 3 states

 

Millions of people are driving without licenses, without insurance, and without basic knowledge of the rules of the road.   If they were licensed, police could spend time on more serious matters.  Some of them come from cultures where drinking and driving is common, and the result in the US can be fatal.  In the work context, any employer whose unlicensed driver has an accident almost surely will have any insurance claim denied, which can be devastating financially for the employer.  Until the undocumented can obtain legal status, lives will be lost, claims will be denied, and police resources will be wasted.

 

3.      Employers being set up to fail E-Verify

 

Under NC law, by July 1, virtually all employers will have to use E-Verify for all new hires.   For industries that rely on manual laborers, it is highly likely that they will not be able to hire the workers that they need, because most such workers are undocumented.  In theory, it makes sense for E-Verify (if it is reliable) to be required of all employers.   And when federal law provides a way for these workers to be authorized to work, E-Verify makes perfect sense.  But until then, employers face an impossible choice: don’t hire needed workers, or intentionally violate federal law. 

 

4.      Severe lack of visas for highly educated workers

 

H-1B visas are available for computer design engineers, accountants, teachers, and similar professionals.   Each year the US gives out 65,000 (plus an additional 20,000 to those who get advanced degrees from US schools).   For the last 10 years, these visas have been used up before the end of the fiscal year, and sometimes they are gone before the fiscal year (October 1-Sept 30) even begins.  In 2013, estimates are that all of the H-1B numbers will be gone by April 5, five days after employers can begin filing for this year’s crop  of numbers.  Unlike other areas of the law, immigration law essentially scorns the law of supply and demand.   The current quota of 65,000 was arrived at during a committee hearing  in 1990.   It was and is an arbitrary number, totally divorced from reality, and one that no one can justify in rational terms.   For years US employers have begged Congress to either increase the numbers or create some kind of formula that would allow one year’s usage to determine the following year’s allotment, or something similar.  Congress has refused every year.

 

5.      No work permission for spouses of H-1B visa holders

 

Some visas held by spouses of foreign workers (E-2 and L-2) allow the derivative spouse to file for a work permit.   The H-4 spouse, however, cannot.  

 

6.      Huge backlogs in employment based green card system

 

These delays keep employees from reaching their professional potential because they have to remain in the same job with the sponsoring employer for years.   For example:

 

Jobs requiring the worker to have a BS degree:     six years, except for Indian citizens (11 years)

 

Jobs requiring Master’s degree:                                 Chinese citizens (5 years), Indian citizens (9 years)

 

Jobs requiring less than 2 years of experience:       six years, except for Chinese citizens (10 yrs) and Indian citizens (11 yrs)

 

7.      Family based case backlogs even worse

 

Siblings of US Citizens:                                  12 years for all countries, except Mexico (17 years) and  Philippines (23.5 years)

 

Married sons and daughters of USCs:        11 years for all countries, except Mexico (20 years) and Philippines (21 yrs)

 

Unmarried sons and daughters (over 21) of

legal permanent residents:                           8 years for all, except Mexico (20 yrs) and Philippines (11 yrs)

 

Spouse and under 21 children

Of legal permanent residents:                     2.5 years for all

 

Unmarried sons and daughters

Of USCs:                                                           7 years for all, except Mexico (20 yrs) and Philippines (14 years)

 

8.      The inadmissibility bars based on unlawful presence

 

In 1996 Congress enacted legislation that imposed severe sanctions against anyone who entered the US without inspection (“EWI”) and stayed too long, or who entered with a visa and overstayed for too long.   The penalties [3 years for 181 days of unlawful presence (ULP); 10 years for 366 days of ULP; permanent (because no waiver exists)for ULP of 366 days plus a later EWI] were designed to keep people out of the US.   The actual effect has been to keep people in, except when family emergencies arise.  And when they do, people leave, e.g.,  so that they can be with dying relatives.  The stories are legion of people with US citizen spouses and children, who have to leave to see family, and who then return EWI, and as a result, they are virtually barred forever from obtaining legal status.

 

These problems affect virtually every segment of our population.   The debate in Congress has been non-existent for years, but due to the historic  whipping that Romney took at the hands of the Hispanic vote, it appears that the Republicans see the wind blowing and they are responding.   The US Chamber of Commerce and several national unions have finally resolved the number of essential worker temporary visas that will be allowed each year under the new regime, and the path to citizenship also appears to be agreed upon.   It also appears that the H-1B numbers will be essentially doubled, with some conditions.

 

Very soon it will be time for the public to press each member of Congress to vote for common sense immigration reform.  The time for waiting is over, as is the time for treating immigrants (high skill or low, family member and student) as if they are invisible or are taken for granted.  When this year’s proposal is introduced, it is time to turn up the heat.

 

To be continued: 

 

·        will employers be able to file for H-1Bs all year round

·        will spouses of H-1Bs be allowed to file for work permits

·        how will the backlogs be handled

·        what kind of proof will be required for an essential worker visa

·        what will it be called

·        how long will people have to wait to apply for green cards (through the new law or through a combination of the current system and new temporary visas)

·        how should Congress deal with the 3/10/permanent bars