Picture this: It's early 2004, San Francisco Mayor Gavin Newsom has drawn national attention to the struggle of same-sex couples for marriage equality by ordering the city clerk to issue marriage licenses to same-sex couples, and now in-house lawyers for several municipalities in the state of New York have asked the New York Attorney General's Office whether their clients, too, can issue marriage licenses to gay and lesbian couples. In a 17-page opinion that carefully analyzes the applicable statutes and decisional law, the New York Solicitor General advises that while New York statutory law does not expressly require that two people be of the opposite sex to obtain a marriage license, it is her view that "the Legislature did not intend to authorize same-sex marriage."
And although the opinion responsibly observes that "[t]he exclusion of same-sex couples from eligibility for marriage... presents serious constitutional concerns," it expressly states that these issues "are best resolved by the courts of this State." The opinion concludes by recommending that municipal clerks in New York "not issue marriage licenses to same-sex couples, and officiants not solemnize the marriages of same-sex couples, until these issues are adjudicated by the courts." (Emphasis added.)
The opinion is a model of legal restraint if ever there were one. The author? Then-New York Solicitor General Caitlin Halligan, who five-and-a-half years later would be nominated by President Obama to a seat on the United States Court of Appeals for the D.C. Circuit. That nomination was made in September 2009, but Halligan is still waiting for a vote by the Senate. One would think that conservative senators, who decry what they call "judicial activism" and claim to revere judges who believe in legal restraint, judges who will apply the law and not make it up according to their own beliefs, would be lining up to urge that Halligan be promptly confirmed.
Surprise of surprises, they haven't done so. On March 10, 2011, every Republican on the Senate Judiciary Committee voted against Halligan's confirmation, and Halligan was reported out of Committee to the full Senate on a strictly party line vote. Now a filibuster of Halligan's nomination has been threatened, forcing Senate Majority Leader Harry Reid to schedule a cloture vote for this Tuesday, Dec. 6, in an effort to allow an up-or-down vote on Halligan's confirmation to proceed.
We've already debunked Judiciary Committee Ranking Member Charles Grassley's hypocritical argument that Halligan shouldn't be confirmed because the D.C. Circuit's workload doesn't justify filling the vacancy (and that was even back when the D.C. Circuit had one more active judge than it does now), but it's worth taking a look at the Senator's baseless efforts to portray Halligan as some sort of left-wing constitutional crackpot based on her 2004 legal opinion regarding same-sex marriage in New York.
Here's what Senator Grassley had to say on March 10, 2011:
The record is clear, and well-documented, that Ms. Halligan has a record of advocating extreme liberal positions on constitutional issues. She authored an informal opinion on behalf of Attorney General Spitzer regarding New York's Domestic Relations Law (DRL), invoking a theory of an evolving Constitution when she went on to raise potential constitutional concerns:
"[t]he question of whether the DRL authorizes and permits same-sex marriage must be analyzed in light of an ongoing and rapidly shifting debate about whether it is constitutional to deny eligibility for marital status to same-sex couples."
It's not exactly apparent what Senator Grassley's problem is with this one-sentence, out-of-context excerpt from Halligan's 17-page opinion, written to render legal advice to in-house municipal lawyers to assist them in advising their clients about the legal issues surrounding same-sex marriage. Surely no objective person could deny that a state's exclusion of same-sex couples from civil marriage at least raises constitutional issues, however that person might think the issues should be decided. (Indeed, in Perry v. Schwarzenegger, a federal court last year ruled that California's refusal to allow same-sex couples to marry violates the equal protection and due process rights of gay men and lesbians under the U.S. Constitution.)
Is Senator Grassley really faulting one of the top lawyers for the state of New York for issue-spotting in a thoughtful legal opinion provided to municipalities in the state? For that's what Halligan did -- point out the issues and identify and discuss the pertinent cases. Certainly the municipal lawyers who asked for legal guidance from the state deserved no less, particularly as to a matter about equality under the law that was making national headlines. But issue-spotting and "advocacy" are two different things. A reader can search high and low through all 17 pages of Halligan's opinion but will not find any "advocacy" (let alone an "extreme" one) of any particular outcome as to the question whether it violates the Constitution to bar same-sex couples from marriage.
Moreover, Senator Grassley is completely missing the difference between the job of a lawyer and the job of a judge when he asserts that Halligan has adopted a "theory of an evolving Constitution" in her legal advice to municipal lawyers on same-sex marriage. In asserting that the question posed to her must be evaluated in light of "an ongoing and rapidly shifting debate about whether it is constitutional to deny eligibility for marital status to same-sex couples," Halligan was stating a legal fact. The case law on marriage equality is rapidly shifting. Halligan said nothing one way or another about the question of whether the case law on this issue should be rapidly shifting. It would have been professionally irresponsible for Halligan, acting as a lawyer giving legal advice about a rapidly shifting legal landscape, to fail to acknowledge the fact that the landscape was shifting and thus uncertain.
It's quite telling that Senator Grassley omitted from his speech any mention of the actual legal advice that Halligan provided in her opinion -- the part about not handing out marriage licenses to same-sex couples, the part about executive branch officials not taking the law into their own hands but letting the courts decide open legal questions, the part about legal restraint. You know, all those parts that would make Halligan the type of judge conservatives claim they want on the federal bench.
Except, apparently, when nominated by President Obama.
As the New York Times' Linda Greenhouse has observed, and as Senator Grassley's effort to manufacture some controversy over the marriage opinion underscores, none of this is really about Halligan at all. It's about conservatives engaging in rank partisanship in an effort to prevent President Obama from putting anyone on the D.C. Circuit, period.
They should not be allowed to succeed.
Cross-posted on Text & History.