Bill.Araiza at lls.edu
Thu Jan 29 16:01:29 PST 2004
This is really interesting. After the initial post I read Lofton,
expecting some snide sniping about Lawrence. But I didn't find the tone
particularly nasty at all. It surely does point out that Lawrence
didn't accord fundamental right status to sexual intimacy per se, but
that doesn't necessarily reflect hostility to the logic of the opinion
-- at most it implies Lawrence's opacity, which is surely a pretty
uncontroversial take on Kennedy's opinion. I would also note that the
panel included Proctor Hug from the Ninth Circuit, sitting by
designation -- from my recollection of my clerkship days, I thought he
was generally considered an extremely judicious and moderate judge.
None of this is to suggest I agree with the result in Lofton. I think
the equal protection analysis is particularly strained -- according to
the court, there's a rational basis in letting unmarried heterosexuals
adopt, in furtherance of the state's goal of placing adoptive kids in
dual-gender households, because the straight but single parent might
marry some day in the future -- though even that would probably pass the
traditional laugh-out-loud rational basis test (though maybe not
Cleburne, properly applied). But I didn't get the hostility the
original post suggested. It's interesting how differently people read
language in opinions.
Bryan Wildenthal wrote:
> Surprised? Not at all, considering the rightwing extremists among
> many of the Reagan, Bush Sr, and Bush Jr appointees in that and other
> circuits. I haven't read Lofton yet, but appreciate the heads-up.
> Just a wild guess: was Reagan appointee Judge Edmondson the author?
> When I clerked for Frank Johnson in 1989-90, I and my fellow clerks
> for Johnson and some other judges (yes, we were a stereotypically
> liberal bunch of law clerks) referred to Edmondson as "Darth Vader."
> Johnson just chuckled when he overheard us.More recently, I wrote an
> entire law review article centered on Edmondson's homophobic and
> poorly reasoned opinion in Shahar v Bowers (upholding Ga. AG's firing
> of lesbian attorney). See 15 Ga. St. U. L. Rev. 381 (1998).Bryan
> WildenthalThomas Jefferson School of Law
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of
> Edward Foley
> Sent: Thursday, January 29, 2004 3:02 PM
> To: conlawprof at lists.ucla.edu
> Subject: Lofton case
> 1.Were others as surprised as I was about the tone of the
> Eleventh Circuit's opinion yesterday -- from the opening
> "states rights" sentence, to the uncharitable -- indeed
> outright hostile -- characterization of Lawrence ("an
> opinion whose language and reasoning are inconsistent with
> standard fundamental-rights analysis," in the panel's words
> -- there's more, but I won't quote it here)?
> 2.The above suggests that appellate-level disrespect (is
> "defiance" too strong?) of the U.S. Supreme Court is
> migrating from the Ninth Circuit to other circuits, and from
> liberals to conservatives.
> 3.I don't recall whether pre-Casey any appellate-level
> federal judges expressed open disrespect for Roe, or whether
> there are any other such examples in the context of school
> prayer, school desegregation, etc. (I'm aware of a few
> federal district judges occasionally issuing opinions that
> seem defiant of Supreme Court decisions). I'm trying to get
> a sense of how recent or widespread this type of phenomenon
> 4.I assume that telling the majority of the Supreme Court
> that its decision was poorly reasoned is not a smart
> strategy for an appellate court hoping that the Court will
> deny cert or affirm appellate decision. Rather, such
> language as in Lofton seems more likely to cause a grant
> and, potentially, a reversal. So, one wonders why the
> judges, presumably knowing this, did it anyway.
> 5.In any event, my own view is that it is not good for the
> federal judiciary that circuit judges speak ill of very
> recent Supreme Court precedents in circuit opinions -- what
> they say in the privacy of their chambers, or even
> off-the-bench speeches is another matter. But perhaps I'm
> merely old-fashioned in this regard.
> As you can tell, I'd be interested in the reaction of others
> to Lofton, which I'm planning to teach in my Con Law course
> as a Lawrence follow-up.
> Ned Foley
> Edward B. Foley
> Robert M. Duncan/Jones Day Designated Professor of Law
> Moritz College of Law at the Ohio State University
> e-mail: foley.33 at osu.edu
> phone: 614-292-4288
> fax: 614-688-4202
> To post, send message to Conlawprof at lists.ucla.edu
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