This week in law and policy

NY Supreme Court ruling declares gay marriage ban unconstitutional

New York Supreme Court Justice Doris Ling-Cohan ruled yesterday that New York State's refusal to issue marriage licenses to gay couples violates the state's constitution. Her ruling was based on New York's 1909 Domestic Relations Act, which restricted marriage to a man and a woman--a restriction now deemed to violate the due process and equal protection rights of LGBT state citizens. The ruling applies only to New York City and requires that city officials begin issuing licenses to same-sex couples within thirty days.

President Bush's State of the Union address renewed his call for a constitutional amendment banning gay marriage.

Gonzales becomes first Latino-American Attorney General

Alberto Gonzales was confirmed this week as Attorney General after a contentious Senate debate and a 60-36 vote that ran largely along party lines (6 Democrats voted to confirm).

En-banc 1st Circuit hearing on voluntary school desegregation case Monday

In a case with potentially wide-ranging impact on communities in Massachusetts and across the nation, the First Circuit Court of Appeals will sit en banc Monday to hear oral arguments in Comfort v. Lynn School Committee, No. 03-2415 (1st Cir. October 20, 2004). The Lynn plan assigns children to neighborhood schools, but prohibits transfers that would increase the racial imbalance at the sending or receiving school. The plan seeks to uphold Massachusetts' 1974 Racial Imbalance Act. In October, a three-judge panel applied the Grutter and Gratz strict-scrutiny test and found Lynn's voluntary desegregation plan unconstitutional; it was not adequately narrowly tailored because it "makes race decisive and forgoes individualized consideration of transfer applications." Application of the higher-education strict-scrutiny test to K-12 education is a key issue in the case. I'll be in Boston to attend the oral arguments and will blog about it next week.

Deputy AG urges prosecutors to report judges who deviate from sentencing guidelines

Deputy Attorney General James Comey issued a memo on January 28 encouraging federal prosecutors to report to Congress and the Department of Justice any judges whose sentences fall outside federal sentencing guidelines. While Booker (January 12, 2005) declared the guidelines advisory, the memo declares that judges "must take all steps necessary to ensure adherence to the sentencing guidelines." A House Judiciary Committee has scheduled hearings for February 10 on Booker.

Federal judges issue conflicting Gitmo rulings

In the latest chapter of the legal morass created by the detention of foreign nationals at the US military base at Guantanamo Bay, two DC District Court judges issued opposing rulings regarding detainees' habeas corpus rights within the same two-week period.

On January 19, District Judge Richard J. Leon ruled that the seven detainees before him had no rights that could be asserted in a habeas petition. Khalid v. Bush (docket 04-1142) and Boumedienne v. Bush (docket 04-1166). SCOTUS blog reports: “The Court concludes,” Judge Leon wrote, “that no viable legal theory exists by which it could issue a writ of habeas corpus” for “non-resident aliens captured abroad and detained outside the territorial sovereignty of the U.S., pursuant to lawful military orders, during a congressional [sic] authorized conflict.”

On January 31, District Judge Joyce Hens Green, who is coordinating the Guantanamo habeas cases for the district, concluded precisely the opposite in ruling that the detainees before her do have constitutional and international treaty rights cognizable in a US court. In re Guantanamo Detainee Cases.

Therefore, while Judge Leon read the Supreme Court's June 28 ruling to say that detainees have the right to file habeas petitions, but lack the ability to assert rights via those petitions, Judge Green concludes that such rights exist and are enforceable. While Judge Leon sees detainee rights as a matter in the purview of the executive and legislative branches only, Judge Green maintains that preservation of such rights require a judicial check.

The issue will certainly go to the Supreme Court, and likely will be expedited. Yesterday, Judge Green set up an immediate appeal to the Circuit Court at the request of the Government. The Bush Administration contends that allowing trials of the Guantanamo Bay detainees will reveal necessarily secure information and endanger military operations and US citizens.

As always, for more Supreme Court news, see the SCOTUSblog at http://www.goldsteinhowe.com/blog/index.cfm.