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Monthly Archives: July 2015


Justice Breyer misses the lead hidden in plain sight

Justice Stephen Breyer captured headlines with his recent cri de coeur against capital punishment, a statement that was remarkable coming from a justice who was neither a long-term abolitionist, like William Brennan and Thurgood Marshall, nor a deathbed convert, like Harry Blackmun, Lewis Powell, and John Paul Stevens. But Breyer’s dissent in Glossip v. Gross missed an opportunity to highlight a central theme of his dissent: the arbitrary application of the death penalty. As Mark Graber details so skillfully at Balkinization, “Richard Glossip is Exhibit A for problems of reliability and fairness with the process that sentences people to death, particularly when prosecutors rely heavily on plea-bargaining with one defendant in order to convict a defendant who refused to admit guilt.”

The whole post is worthwhile reading, if only to convey the full absurdity of proceedings that advanced well beyond Kafkaesque some time ago. Here’s the short version of the story:

  • The man who clubbed the victim to death with a baseball bat, Justin Sneed, is not facing execution, despite the lack of evidence casting doubt on his culpability.
  • Sneed escaped a date with the needle by agreeing to testify that a co-worker, Richard Glossip, had paid Sneed $10,000 to kill their boss.
  • Glossip was convicted and sentenced to death for soliciting murder, even though the only evidence against him was Sneed’s paid-for trial testimony.
  • Glossip’s conviction and sentence were overturned by the Oklahoma Supreme Court on grounds of ineffective assistance of counsel, but the outcome on retrial (seven years after the murder) was the same, and the same court upheld it.
  • The heinousness of the murder was offered as an aggravating factor in determining Glossip’s sentence, even though it did not lead to execution for the man who actually swung the bat.
  • During this period, the state repeatedly offered to spare Glossip’s life if he confessed to the murder. Therefore, his death sentence appears to be a way of punishing Glossip for insisting on his right to a jury trial.

It is puzzling why Breyer did not highlight these facts. To be sure, the Supreme Court granted review in Glossip v. Gross exclusively to consider the question of whether midazolam is a sufficiently efficacious numbing agent to make its use compatible with the Eighth Amendment. As such, the Court did not have before it the questions of Glossip’s guilt or sentence, or of the appropriateness of the lower court proceedings. But Breyer used his dissent to place on the table the larger, and thus more obviously bracketed, question of whether the death penalty can ever be administered in a way that is neither cruel nor unusual. Once he took this consequential, not to mention headline-grabbing, step, why would he not draw upon the facts of Richard Glossip’s case?


Sister Wives, Now Coming to a Court Near You (if you live in Montana)

Throughout the debate over legalized same-sex marriage, the scenario leading the parade of horribles has involved the polygamist households that would see their own opportunity for legalization once the traditional one man-one woman marriage was no longer legally sacrosanct. (Leave aside for now all those household arrangements in Scripture that don’t comply with what today’s traditionalists consider traditional.) Indeed, Chief Justice John Roberts and Associate Justices Samuel Alito and Antonin Scalia gave the hypothetical substantial attention during oral argument, and in their dissenting opinions, in the recently announced Obergefell v. HodgesOn Wednesday, the hypothetical became less hypothetical:

A Montana man said Wednesday that he was inspired by last week’s U.S. Supreme Court decision legalizing gay marriage to apply for a marriage license so that he can legally wed his second wife.

Nathan Collier and his wives Victoria and Christine applied at the Yellowstone County Courthouse in Billings on Tuesday in an attempt to legitimize their polygamous marriage. Montana, like all 50 states, outlaws bigamy — holding multiple marriage licenses — but Collier said he plans to sue if the application is denied.

“It’s about marriage equality,” Collier told The Associated Press Wednesday. “You can’t have this without polygamy.”

It’s tempting to laugh this claim out of court, but two decades ago, James Obergefell’s claim that the Fourteenth Amendment compelled Ohio to grant formal recognition to his long-term commitment to another man was considered outlandish as well. What Collier won’t have behind him, according to the AP account, is interest-group support. The ACLU has not yet responded to Collier’s request for the organization to represent him, and I’d imagine that pretty much every seemingly intractable civil liberties problem will have to be resolved conclusively before the ACLU considers tackling this one. Even the pro-polygamy advocacy group Principle Voices appears skeptical of Collier’s stance. According to the group’s director, polygamist households don’t want the government scrutiny that would come with legalization, and as such would prefer protection against anti-cohabitation laws to a judicial holding legalizing plural marriage.

From a legal standpoint, the distinctions between plural marriage and same-sex marriage between two people (this article adeptly summarizes many of the key differences) should suffice to keep claims like Collier’s from gaining any traction in the short term. What will keep the pro-polygamy movement from achieving long-term success, as the gay rights movement eventually did, is the probable lack of logistical support from legal civil rights activists. Why will this support prove harder to come by for proponents of plural marriage equality?

  • LGBT individuals are represented in the legal profession, and among the legal elites who spearhead public law litigation, in a way that polygamists and would-be polygamists are not. It is possible that the latter might be more inclined to come out, as it were, in response to a change in the legal status of polygamy. But it’s hard to imagine that there is a meaningful number of individuals just biding their time until the Supreme Court reverses its holding in Reynolds v. US (1878) and requires states to recognize plural marriage.
  • Much of what shifted public opinion on same-sex marriage had to do with greater numbers of heterosexuals recognizing that they knew family members, friends, and co-workers who are gay. And support for marriage equality appears to correlate with having a large number of gay individuals in one’s professional or personal circles. Would a similar pattern emerge if would-be polygamists could be open about their relationships, and monogamists would come to understand better the triad-next-door? Perhaps, but not in the short term. And LGBT individuals could cast their appeals in terms of the unfairness of denying them access to civil marriage, with the attendant social legitimation and wide array of government benefits, based on their internal wiring. Until plural marriage candidates can present compelling scientific evidence that they were “born that way,” they will have to convince monogamists that their lifestyle choices should not preclude the extension of official recognition to their desired arrangements.
  • Justice Anthony Kennedy’s majority opinion in Obergefell stressed the denial of dignity resulting from treating same-sex couples’ long-term commitments as unworthy of recognition by the state. People wishing to form plural marriages might find themselves frustrated or inconvenienced by the state’s restricting them to one spouse at a time. But it’s hard to argue that their dignity has been compromised.
  • Finally, it’s hard to envision civil rights advocates taking up a cause that has virtually no chance of success. Consider the three Obergefell dissenters who claimed that using the Fourteenth Amendment to require marriage equality for same-sex couples will inevitably require formal recognition of polygamy. What are the odds that they would vote in support of Nathan Collier’s claim, were it to land before them? Scalia will officiate a gay wedding before that happens. And Collier would have no chance of picking up support from the justices comprising the Obergefell majority, as they could readily find ways to distinguish between two-person marriages and plural marriages.

I’m aware that legal scholars and political observers would have made similar arguments about gay marriage two decades ago, and I recognize the non-zero probability that I’ll be eating these words someday. But a lot of legal mobilization would have to occur before that probability rises much above zero.