Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to firstname.lastname@example.org; please put "blog comments" in the subject line.
"Brief amici curiae of Members of the Congressional Black Caucus, et al. filed. (Distributed)"
Again, I don't want to assume too much regarding this matter though wish it wasn't buried in the docket page -- even if one justice has a problem and dissents to an order, it is upfront on the Order Page. Here, if I didn't happen to see an article about the matter, which is obviously quite topical, I would not have known about it. There are lots of cases simply being examined, some having some sort of action like this. I would add as well that while I do appreciate what SCOTUS does provide (simply by typing in "Moore" in the search box on the docket page, I found the page), more can easily be provided. This includes link to opinions below, amicus briefs and so first.
For instance, the Congressional Black Caucus brief, which is one of those already noted on the docket page. Note that the docket page of the case provides a minor window into the proceedings of the Supreme Court that in certain cases might be more revealing than others, especially if there are signs that an informed observer might catch. For instance, for some reason, a month after this brief was distributed, the state is requested to reply. Since the two courts below was dismissive (though again the district court judge took time to spell out the racist history of the flag, which amounts to an extended advisory aside), such a brief can be useful to show a different view. Things often are more complicated.
The brief challenges the citation [the appellate opinion is here] of Allen v. Wright to hold that mere exposure of a discriminatory message is not enough for standing purposes. Granting that holding, as one must, the situation here is at least somewhat different. The case there involved parents who argued tax benefits to private schools with allegedly discriminatory polices burdened them because it affected their ability to send their children to non-racist schools. The Supreme Court closely split (if Marshall participated, would have been 5-4), but the harm was not as direct as here -- the lawyer and his child directly is exposed to the flag.
Still, the court below says the specific harm being alleged is not enough to be denial of equal treatment as such. It is not a matter of denial of schooling or marriage (even if a license is arguably merely "symbolic"). As the Supreme Court noted in that case: "Neither do they have standing to litigate their claims based on the stigmatizing injury often caused by racial discrimination." The brief cites a case about a candidate on a ballot challenging a law that required statement of race; perhaps closer but still a concrete harm -- the right to be on the ballot without expressing one's race. The dignitary harm here is broader and more open-ended as to scope, even if I'm trying to limit it some to specific lawyers or students.
But, the opinion is not about parents who actually have students in schools having some sort "stigmatic harm," so it seems to leave open this specific situation. The problem remains that a "stigma" harm alone does not seem to be enough for equal protection purposes. The brief points to various opinions where a dignity harm seems to be a core concern of the courts, something particularly appealing to Justice Kennedy. The standing issue remains. A marriage license very well for some might largely be a matter of dignity (though it's more than that for most). It still is a concrete thing. The brief ends with a concern about "endorsing" racism. This goes back to the comparison to an endorsement/religious liberty claim. It is a core problem with these racist symbols and very well might be appropriate for standing purposes. At least, I'm not sure what makes it different from religious symbols in this respect as long as there is some standing hook such as a person whose very livelihood involves regular exposure. This isn't some general taxpayer standing claim though it is true that the flag affects us all. But, if a religious symbol can be challenged, not sure what the point is there. The two things might not have been treated the same; current events suggest if anything this is a stronger case. Just to toss it out there, also issues for defendants.