Latest Scholarship

April 25, 2014

Book Review in the Journal Philosophy and Society

The Journal Philosophy and Society recently published a review of my book, "Opening the Floodgates: Why America Needs to Rethink its Borders and Immigration Laws," by Professor J. Angelo Corlett of San Diego State University's Department of Philosophy.

The review begins: "Kevin R. Johnson argues for an open borders immigration policy for the United States. (Johnson 2007a) Instead of assuming the ineligibility of immigrants for admission to the U.S., Johnson's proposal presumes their eligibility, only denying entrance to those who are dangerous due to threatening behavior or easily transmitted diseases. (Johnson 2007a: 37) As he notes, there is some concern over what kind of impact a pro-posal like his would make, for instance, whether open borders would result in a mass migration to the U.S.. (Johnson 2007a: 28, 210) Johnson states that even though there is a lack of empirical evidence providing support for what might occur under these circumstances, at the very least the new system 'would be more orderly, humane, and fair than the current one.' (Johnson 2007a: 28)"

You can read the full review here.

April 25, 2014

What Will the Supreme Court Do in the False Campaign Speech Case, Susan B. Anthony List v. Driehaus, Argued This Week?

Cross-posted from Justia's Verdict.

In the space below, I offer analysis of a campaign regulation case in which the U.S. Supreme Court heard oral arguments this week, Susan B. Anthony List v. Driehaus. The case involves a challenge brought by a pro-life organization, the Susan B. Anthony List (SBA List), against an Ohio statute that imposes criminal liability on persons or organizations that make "a false statement concerning a candidate [for any public office] knowing the same to be false or with reckless disregard of whether it is false or not, if the statement is designed to promote the election, nomination or defeat of the candidate." The lower appellate court in the case, the United States Court of Appeals for the Sixth Circuit, held that SBA List did not present a "ripe" controversy concerning the constitutionality of the statute, and thus dismissed the lawsuit for lack of jurisdiction. The Supreme Court will likely focus its ruling on the "ripeness" question as well, but-as I will explain below-questions of standing and ripeness are often tied up in complicated ways with the substantive question of whether a plaintiff has a winning constitutional claim on the merits.

How the Ohio Law Works and the Lower Court's Rejection of SBA List's Challenge

A little background on the way the Ohio statute operates is necessary to understand the issues before the Court. Under the Ohio law, if someone-anyone-complains that somebody has made a false statement within the meaning of the statute during an election campaign, a panel of the Ohio Elections Commission (an independent agency charged with implementing the State's campaign regulations) must make a prompt, preliminary determination of whether there is "probable cause" (i.e., some reasonable possibility but not necessarily a 50+% likelihood) to think that a statutory violation has occurred. If no probable cause is found, the Commission takes no further action. But if a panel concludes that probable cause exists, the case is referred to the full Commission, which then is charged with determining whether "clear and convincing" evidence supports the conclusion that a violation has in fact occurred. If it so finds, the Commission refers the case to the state prosecutors, who then have ordinary prosecutorial discretion (possibly overseen by the State Attorney General) to initiate a prosecution or not. If a prosecution is brought and a conviction (presumably requiring proof of guilt beyond a reasonable doubt) is obtained, a penalty (in the form of a fine or jail time) is imposed.

In the 2010 election cycle, SBA List sought to put up a billboard criticizing then-Congressman Steven Driehaus, who was running for reelection. The billboard read: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." Driehaus filed a complaint with the Ohio Commission, and a panel of the Commission found probable cause to suspect a violation of the statute and thus referred the Complaint to the full Commission. SBA List then filed suit in federal court challenging the Ohio scheme. After Driehaus lost the election, he withdrew his Commission complaint, so the full Commission never assessed the billboard message, and nothing involving this incident was ever referred to a prosecutor. But SBA List continued to press its federal lawsuit, asserting that it intended to engage in substantially similar conduct in the future and that Driehaus may run for Congress again. Driehaus then moved to Africa to work for the Peace Corps, and has not indicated any present intention to run for office again anytime soon.

Based on this record, the Sixth Circuit ruled that SBA List no longer has a ripe claim against the Ohio statute, for two reasons. First, there is insufficient reason to think that anyone will complain about SBA List under the statute in the future. As the Sixth Circuit put it, "SBA List does not say that it plans to lie or recklessly disregard the veracity of speech. Instead, it alleges the very opposite, insisting that the statement it made and plans to repeat-that [Obamacare] allows for taxpayer-funded abortions-is facially true." Because SBA List plans to speak only the truth, reasoned the Sixth Circuit, it hasn't shown that it is particularly likely to get ensnared by a statute regulating falsity.

Second, even if the Ohio statute is likely to be invoked against SBA List again, no criminal prosecution-let alone conviction-is sufficiently likely to ensue. Given all the steps that must precede conviction, it is simply too speculative to think that SBA List is in any real danger of having criminal sanctions imposed upon it.

What Will the Supreme Court Do?

While it is likely we cannot know the outcome of this case for a few months, a few observations are in order even now. Most important, the Supreme Court will probably reverse the Sixth Circuit. I say this in part because the Sixth Circuit's reasoning is open to serious question, and more so because the Court decided to grant review in the first place. The Sixth Circuit's opinion is unpublished, which means it can do no mischief in other lower court cases, yet still the Court granted review. To me that suggests a strong desire (by at least four Justices-the number needed to grant review) to correct error by the Sixth Circuit.

Why do I find the Sixth Circuit's reasoning troubling? Let us take the Sixth Circuit's first point, that SBA List is unlikely to be burdened by the Ohio law because SBA List disclaims any intent to lie. As Chief Justice Roberts sarcastically observed at oral argument: "[S]urely you don't expect them to come in and say, 'I'm going to say something totally false and I'm afraid I might be prosecuted for that." To put the Chief Justice's point more generally, a person challenging a statute for unconstitutionally restricting his speech should be able to do so provided he professes a specific intent to engage in speech that is reasonably likely to trigger punishment, regardless of whether punishment is actually warranted under (one interpretation of) the terms of the statute.

The second rationale of the Sixth Circuit-that criminal sanction is a remote possibility because of the number of steps involved-is on firmer ground, and is actually supported by the reasoning of recent ripeness cases by the Court such as Clapper v. Amnesty International USA (although I acknowledge that the 5-4 ruling in Clapper itself is in some tension with other cases, where the fact that there are multiple steps in a causal chain leading to enforcement is found not to be an insurmountable barrier to federal judicial review). But in any event, this "remote possibility of actual prosecution" argument it is undercut significantly by SBA List's assertion in its briefs that a probable cause determination by a panel of the Commission, all by itself, inflicts injury, whether or not any criminal prosecution is later brought. By making the probable cause finding, the government causes SBA List to suffer reputational injury, and harms the campaign that SBA List may be waging in favor of or against particular candidates. Because, SBA List argues, a probable cause determination was found with respect to the Driehaus billboard, it will also likely be found with respect to "substantially similar" speech that SBA List intends to utter. This kind of injury is cognizable and may indeed be ripe (as the Court seemed to suggest in Meese v. Keane), but as I will explain later, it raises its own complexities.

What Should the Court Do?

I suggested above that I expect the Court to reverse the Sixth Circuit. But is that the right result? Perhaps not. Though the Sixth Circuit's reasoning was flawed, its result may nonetheless have been correct. Even assuming that a probable cause determination by a panel of the Commission can cause injury that may be redressed in a federal lawsuit, there remains the question of precisely what speech SBA List plans to utter that might trigger such a determination. As the lawyer for Ohio pointed out at oral argument, the only forward-looking contention in SBA List's complaint is its statement that "it plans to engage in substantially similar activity in the future, but they don't identify any other candidates" whom they intend to criticize. If this is true, the vagueness of this statement should be a problem for SBA List. In past cases, the Supreme Court has said a generally stated intention to engage in some activity, without more details about the when, where, and how, can create ripeness problems. So, when a scientist who wanted to challenge under-enforcement of the Endangered Species Act contended that he desired to study a species that might be threatened by the under-enforcement, without indicating precisely where, when, and how he planned to conduct the study, standing/ripeness was denied (in Lujan v. Defenders of Wildlife). And when a leafletter who was punished for distributing anonymous leaflets criticizing a Congressman sued to enjoin future enforcement of the law because he intended in subsequent elections to distribute in the same place "similar anonymous leaflets" even though the particular Congressman who was the target of the prior leaflet had since left Congress for a judicial post, the Court said (in Golden v. Zwickler) there was not a ripe controversy because the likelihood of a future conflict between the leafletter and the statute was too uncertain.

To me, the facts of these cases-and the plaintiffs' vague statements of future intentions-sound somewhat like SBA List's assertions regarding "substantially similar" speech in which it plans to engage. What, precisely, does "substantially similar" mean, especially in a setting where SBA List in 2010 did not criticize all Congresspersons who voted for Obamacare in 2010, but rather (as Ohio's lawyer pointed out in oral argument) only a small subset of them-Democrats who first opposed but then voted for the healthcare law? Since Mr. Driehaus himself is not running again anytime soon, it remains to be identified against whom SBA List plans to speak out.

I found it interesting that the Justices didn't seem to focus on these points when the Ohio lawyer mentioned them. The liberal Justices generally don't agree with high standing and ripeness hurdles, so they can be expected to be open to SBA List's arguments. But the conservative Justices-who in other cases do set the standing/ripeness bar pretty high-should have been interested in this line of argument advanced by Ohio's counsel. Maybe when the opinion issues they will embrace this route, or maybe they will find ripeness because they are so troubled by the Ohio law and want to permit the federal courts to adjudicate its merits.

A Few Observations on the Merits

Let us turn, then, to the merits, although any remotely complete discussion of the First Amendment claims here will require one or more additional columns. For starters, it is somewhat troubling to me that a panel of the Commission found probable cause to think a billboard stating that Congressman Driehaus voted for taxpayer-funded abortions was false. Incomplete, no doubt. Misleading, perhaps. But factually false? Even granting that executive regulations under Obamacare (and the Hyde Amendment law that may or may not apply to the Affordable Care Act) limit taxpayer-funded abortions to those involving rape, incest, or life of the mother, it's hard to say the law (for which Driehaus voted) does not, technically, involve some (albeit very limited) taxpayer-funded abortion procedures. And the concept of criminal falsity, to have any chance of surviving a First Amendment challenge in an election contest, will have to be assessed technically.

I should conclude by linking the ripeness and First Amendment merits questions. It may be that SBA List's best argument for ripeness focuses on the injury caused not by (somewhat speculative) prosecution, but by the specter of a probable cause determination, as discussed above. But if this is so, then-when the case is remanded to the Sixth Circuit-arguably the only ripe question is whether the probable cause aspect of Ohio's law (rather than the imposition of criminal sanctions themselves) violates the Constitution. And although an argument on the merits can be made that a state Commission's power to make a probable cause finding in a campaign-speech setting is itself problematic under the First Amendment, that seems a somewhat tougher argument than one challenging the imposition of criminal liability (because if the government is not imposing fines or jail terms, but only uttering its own view that someone's speech is or may be false, the government can claim to be more of a speaker itself). In other words, if the relevant injury is not the (real) threat of criminal liability, but the reputational harm caused by a government's (preliminary) characterization of possible falsehood, then the First Amendment challenge is itself harder to maintain. I will likely explore more of these merits questions in later columns.

April 18, 2014

Professor Bennoune on "Ijtihad: Feminism & Reform in Islam"

Professor Karima Bennoune, author of "Your Fatwa Does Not Apply Here: Untold Stories from the Fight Against Muslim Fundamentalism," recently appeared at this event on Capitol Hill. Organized by the group Muslims for Progressive Values, the event was titled "Ijtihad: Feminism & Reform in Islam."

Here is the event poster.

April 17, 2014

Dean Johnson Delivers Lecture on Immigration Act of 1965 at University of Cincinnati

Dean Kevin R. Johnson delivers a lecture today at the University of Cincinnati College of Law. Here is the web announcement:

UC College of Law to Host Discussion on Immigration Act of 1965 and Its Impact

The lecture by Dean Kevin Johnson of the University of California-Davis School of Law will highlight the Immigration Act of 1965 and its impact on Latina/Latino immigrants. The April 17 event is open to all.

The community is invited to join UC College of Law students, faculty and staff for "Beginning of the End: The Immigration Act of 1965 and the Emergence of the Modern U.S./Mexico Border State," a lecture by Dean Kevin Johnson, University of California-Davis School of Law.

The lecture will be held  at 12:15 p.m., Thursday, April 17, in Room 118 of the College of Law building. All are invited to attend. In the lecture, Johnson will reflect on the Immigration Act of 1965, the amendments to the act that followed and the impact of the act and amendments on Latina/o immigrants.

About the Speaker
Kevin R. Johnson is dean, Mabie-Apallas Professor of Public Interest Law, and professor of Chicana/o studies at the University of California-Davis, where he has been since 1989. Johnson is a preeminent and prolific scholar, teacher and advocate in the areas of immigration law, civil rights, Latino/as and the law, and critical race theory.

His scholarly works include such books as "The Huddled 'masses' Myth: Immigration and Civil Rights," "Opening the Floodgates: Why America Needs to Rethink Its Borders and Immigration Laws" and "Immigration Law and the U.S.-Mexico Border," which received the Latino Literacy Now's International Latino Book Award - Best Reference Book. Johnson has been regularly quoted in The New York Times, Los Angeles Times and other international news sources.

Johnson's teaching and advocacy have been recognized by various institutions throughout the country. He has been the recipient of the American Association of Law School's Clyde Ferguson Award (2004), the Hispanic National Bar Association's Law Professor of the Year Award (2006), the National Association of Chicana and Chicano Studies Scholar of the Year Award (2008) and was honored with the Central American Resource Center Romero Vive Award for his outstanding work and commitment to social justice and immigrants (2012). 

This event is sponsored by the Immigration and Nationality Law Review.

About the Immigration and Nationality Law Review at the College of Law
The Immigration and Nationality Law Review focuses on student advocacy in the area of immigration and nationality law. While primarily focused on immigration law, which seeks to define who may enter and reside in a country, INLR incorporates subject matter well beyond immigration. In particular, the INLR addresses issues of nationality which considers the formal relationship between a citizen of a nation and the nation itself. Since immigration and nationality work together to delineate citizenship and residency, they play an important part in the ongoing dialogue regarding national identity. Moreover, immigration and nationality frequently implicate issues of race, gender, class and national security.

April 11, 2014

The Narrow (and Proper) Way for the Court to Rule in Hobby Lobby’s Favor

Blog entry cross-posted from Justia’s Verdict. Co-authored with Professor Alan Brownstein.

The Sebelius v. Hobby Lobby Stores case argued before the Supreme Court last week raises the question whether the Hobby Lobby chain of arts and crafts stores is entitled, under the Constitution or the federal Religious Freedom Restoration Act (RFRA) to be exempt from the requirement in Obamacare that employers who provide health insurance to their employees include in the insurance policy certain forms of contraceptives, the use of which for some persons (including the owners of Hobby Lobby) is forbidden by religious principles. Many commentators, ourselves included, predict that Hobby Lobby will win the case, and be found to be exempt from the Obamacare requirements by virtue of RFRA.

Yet at the oral argument, many Justices, especially Justices Ginsburg and Sotomayor but also Chief Justice Roberts, pressed Hobby Lobby’s lawyer, Paul Clement, on just how far his religious-exemption argument might extend. Right out of the gate, Justice Sotomayor asked him about religiously-inspired objections to vaccines and blood transfusions. Moving beyond healthcare mandates to other federal regulations of employers, Justice Kagan asked, a few moments later: “So another employer comes in and that employer says, ‘I have a religious objection to sex discrimination laws’; and then another employer comes in, ‘I have an objection to minimum wage laws;’ and then another, child labor laws. And [under] all of that [the federal government can win only if it satisfies] the exact same test [for RFRA you describe today,] which you say is this unbelievably high test?

If, as we expect, Hobby Lobby prevails, it will be very important for the preservation of other important legal principles and public policies that the Court not rule in Hobby Lobby’s favor on too broad a basis. In the space below, then, we try to identify how an opinion in Hobby Lobby’s favor should—and should not—be crafted.

Do Corporate Entities Enjoy Protection Under the RFRA?

Let us turn first to one key question under RFRA—whether its protections extend beyond natural persons to corporate entities like Hobby Lobby (a closely held for-profit “S” Corporation owned by the Green family.) We think RFRA can be found to apply, but that the Court should make clear that RFRA is designed to protect religious freedom of conscience and that a corporation itself does not have a conscience in the same sense that human beings have a conscience.

Some commentators argue that just as the Supreme Court held that corporations are persons for freedom of speech purposes in the Citizens United case, corporations must be considered persons in free exercise or RFRA cases as well. We think that analogy is mistaken, and that grounding a decision in Hobby Lobby’s favor on this analogy would be unnecessarily expansive. Freedom of speech in the context of political expenditures by corporations is an instrumental right. We protect it because of its utility for democratic decisionmaking. In Citizens United, the Court held that corporations are persons for free speech purposes for explicitly instrumental reasons—because corporations can present voices or perspectives that should be part of the marketplace of ideas.

Freedom of religion and conscience are dignitary rights. Our society protects them not because doing so serves some instrumental goal, but because accepting and living one’s life based on religious beliefs, or deciding not to live a religious life, is part of what it means to be human. Government must respect the right of human beings to make self-defining decisions and to live their lives authentically in light of those choices.

Corporations have no such dignitary rights. They do not love. They do not feel guilt or shame. They have no conscience. They will not stand before G-d to answer for their sins after they die, because they are not human. They are artificial entities that exist in perpetuity. We are inclined to agree with Chief Justice Rehnquist’s dissenting opinion in Pacific Gas and Electric Co. v. Public Utilities Commission of California (a compelled speech case), where he wrote: “Extension of the individual freedom of conscience decisions to business corporations strains the rationale of those cases beyond the breaking point. To ascribe to such artificial entities an ‘intellect’ or ‘mind’ for freedom of conscience purposes is to confuse metaphor with reality.” Bluntly, if we are talking about corporations in a formal sense, corporations do not have religious liberty rights.

However, in many cases corporations can be viewed as the representative of or—as our UCLA colleague Eugene Volokh has suggested—a “proxy” for individual persons and groups. Whatever protection society provides to the corporate form is intended to recognize and protect the dignity not of the entity but, of the entity’s owners or managers. An incorporated church or a religious non-profit organization satisfies this criterion. A closely-held corporation like Hobby Lobby that is not publicly traded, and that is owned by a small number of actual individuals, does so as well.

Thus, the Court could hold that RFRA protects the conscience of the owners of Hobby Lobby notwithstanding their decision to do business in a corporate form. But it should make it clear that no such argument justifies protecting the conscience of publicly-traded corporations such as General Motors or Exxon. While Justice Roberts intimated that closely-held corporations could be distinguished from publicly-traded corporations, and that the protection provided to the latter by RFRA need not be decided in this case, a more prudent and limited opinion, and one that reflects the proper understanding of dignitary rights, could resolve this question in definitive terms once and for all.

The Strict Scrutiny Test, and (the Very Limited) Relevance of Statutory Exemptions in Assessing the Weight of the Government Interest

The most important issues that the Court will have to navigate in drafting a narrow opinion relate to the standard of review imposed by RFRA. To satisfy RFRA, the government must justify its regulations under strict scrutiny; that is, the government must demonstrate that its regulations are the least restrictive way to further a compelling governmental interest. Hobby Lobby wins its case if the government fails on either prong of this rigorous standard of review.

It is important in this case to examine each of these prongs separately. Several arguments presented to the Court attempt to establish that the government lacks a compelling interest to require the cost-free provision of medical contraceptives to employees who are provided health insurance. We think these arguments are wrong on the merits, in part because they are extremely broad and expansive in their implications. If the Court concludes that the government lacks a compelling interest in Hobby Lobby, many religious claimants might successfully challenge a very wide range of laws under RFRA.

In response to the somewhat obvious intuition that women need access to contraceptives for important birth-control and health reasons, and the fact that often the safest and most effective contraception is also among the most expensive, Hobby Lobby argues that Obamacare’s preventive medicine regulations are so underinclusive that the government interests can’t be compelling. The fact that businesses that employ fewer than 50 full-time employees are not required to offer any health plan to their employees, and the fact that many current health plans that do not include cost-free preventive medicine coverage are “grandfathered in” under Obamacare so that they continue to operate without change are said to demonstrate that the government itself does not treat the public health interest it is asserting as if it were a particularly important concern.

We think Solicitor General Verrilli effectively challenged this contention during oral argument. The fact that a law is underinclusive often has little bearing on whether the government’s goal that it furthers is compelling. Important civil rights laws, such as Title VII (which prohibits race discrimination by employers), often exclude small businesses from their coverage. Indeed, most laws have more exceptions to them, or limitations to their applicability, than their basic purposes might suggest. It is common for government to serve very important interests while moving forward in a piecemeal fashion to accommodate other non-trivial interests, particularly when it is breaking new regulatory ground. And new legislative programs serving compelling interests, such as the American with Disabilities Act, may be phased in to their operation without the phase-in suggesting that the interest being served is unimportant. It is hard to argue that the government lacks a compelling public health interest in making preventive medical services more available because—in the herculean task of transforming the provision of health care in the United States—it has grandfathered in some existing plans to protect important reliance interests and to facilitate a smoother transition to the new health care system. Most problematically, if the Court holds that the government lacks a compelling state interest in Hobby Lobby, all laws with exclusions, exemptions, limitations in applicability or phase-in periods would be vulnerable to similar RFRA challenges.

Narrow Tailoring—and A Plausible Narrow Way Out in the Hobby Lobby Dispute

The second prong of the RFRA standard—which asks whether the preventive medicine regulations are the least restrictive means to accomplish the government’s compelling state interest—provides a much narrower foundation for ruling in Hobby Lobby’s favor. Here, one arguably less restrictive means by which the government could achieve its goals that seemed to generate support from several Justices at oral argument was for the government to exempt employers asserting religious objections from the regulations, while arranging for the employees of such exempt employers to receive medical contraceptive insurance coverage from an alternative source—with either the insurance company providing the coverage or the government itself incurring the cost of these benefits. Indeed, the government already grants an accommodation to religious non-profits (recall that Hobby Lobby is for-profit), and requires health care insurers to provide the disputed coverage to the employees of the accommodated non-profit employers at the insurer’s own cost. A similar accommodation could be extended to closely held for-profit employers who object to the regulations on religious grounds.

It is important to note here that this alternative would be unavailable in most cases where a for-profit business seeks a religious exemption from a general regulation; the preventive medicine insurance coverage mandated by the Affordable Care Act is an unusual regulatory scheme in important respects. The benefits provided by the Act—generally available and affordable health insurance—are fungible, intangible goods that can be provided by either the public or private sector. And the Act’s beneficiaries have no reason to care about the source of the insurance.

This is not your ordinary workplace regulation. Both the goal and the operational design of the Affordable Care Act are directed toward providing affordable health insurance to all Americans, whether they are in a workplace or not. Employers are used simply as a convenient instrument to distribute healthcare to many Americans—but that is incidental to the ultimate purpose of the legislation. Indeed, for many Obamacare backers, providing these benefits through the healthcare plans of private employers was the second-best alternative. A government health insurance (“single payer”) program was thought by some to be the most desirable and efficient way of guaranteeing affordable health insurance in our society.

In other circumstances, including many mentioned by the Justices at oral argument, if the government has to bear the cost of providing religious accommodations to employers, the price tag might be prohibitively high. Or any meaningful accommodation might involve interventions that are unacceptably complex and individualized. Or, as Paul Clement pointed out, in some cases—such as RFRA claims for exemptions from civil rights laws prohibiting discrimination—the unavoidable harm caused by granting an accommodation would simply be too great. But none of those problems would arise if the government provided supplemental insurance coverage (or required health plan insurers to do so) to the employees of religiously-exempt organizations like Hobby Lobby. Indeed, if the government provided the insurance coverage, it could limit its costs in doing so by requiring any accommodated business (e.g., Hobby Lobby) to contribute whatever funds it saved by not providing the contraceptive coverage to some other public good identified by the government that would be consistent with the employer’s faith, and on which the government would otherwise be spending the public’s money. (Exempt employers would be required to offer alternative contributions to satisfy their civic obligations, in much the same way that a religious pacifist exempted from conscription as a conscientious objector would be required to perform alternative service as a condition to receiving an accommodation.)

A decision in Hobby Lobby’s favor on these “least restrictive alternative” grounds would not be completely sui generis. It would apply to some other cases. But it would be the narrowest basis for a holding in Hobby Lobby’s favor. At a minimum, it would guarantee that the Court’s decision would provide no direct support to RFRA claims for exemptions from civil rights laws.

Would Granting Hobby Lobby an Accommodation Violate the Establishment Clause?

There is one final issue about the scope of any opinion the Court will issue that has to do with a constitutional question concerning the scope of RFRA. Several commentators and amici have argued that it will violate the Establishment Clause of the First Amendment if the Court rules in Hobby Lobby’s favor. They argue that the Establishment Clause imposes a cap or limit on religious accommodations. An accommodation violates the Establishment Clause if it goes too far and imposes too heavy a burden on third parties or the general public. Such a violation will occur if Hobby Lobby is exempt from the medical contraceptive regulations, the argument runs, because Hobby Lobby’s employees will not receive valuable public health benefits to which they would otherwise be entitled. Religious exercise cannot be privileged by accommodations if doing so imposes such a heavy cost on third parties.

One expansive rejoinder to this argument challenges the contention that the employees of an exempt employer will be harmed by the accommodation. The employees had no “right” to these benefits, after all. The government was not obligated to mandate the provision of no-cost health insurance for preventive medicine to these employees or anyone else. Indeed, the benefits are available only because of the very law to which Hobby Lobby claims to be exempt. The government isn’t harming or taking something away from employees if it (through the enactment of RFRA) decides not to provide as many benefits as it might, in order to protect religious liberty.

We think this rejoinder is overly broad and mistaken on the merits. An analogy to an early religious freedom ruling by the Court might help make the point. In some ways, the Establishment Clause argument here is the flip side of the Free Exercise claim upheld in Sherbert v. Verner, the seminal case in which the Court held that the state violated the free exercise rights of a Seventh-day Adventist when it denied her unemployment compensation because she refused jobs that required her to work on the Sabbath. In that case, as in the Affordable Care Act setting, the government was under no obligation to provide unemployment benefits to anyone, and therefore might be thought to have been free to deny benefits to persons who refused appropriate job offers. The fact that the state created the benefit scheme through an act of political discretion made no difference to the Court’s free exercise analysis in Sherbert, however, and we think it should make no difference to the application of the Establishment Clause in Hobby Lobby.

As a general matter, we believe that the loss of generally available benefits to which one would otherwise be entitled is a cognizable harm for both Establishment Clause and Free Exercise Clause purposes. Thus, denying an individual a generally available benefit to which she would otherwise be entitled, in order to accommodate some other person’s religious practice, is a cognizable harm for Establishment Clause purposes. And denying an individual a generally available benefit to which she would otherwise be entitled if she obeyed the dictates of her faith is a harm for Free Exercise purposes.

There is, as should be clear from our earlier analysis, a narrower ground for rejecting the argument that a judicial finding in Hobby Lobby’s favor will violate the Establishment Cause. If the Court finds in favor of Hobby Lobby, it will basically hold that if the government wants to provide medical contraceptive insurance coverage for the employees of religious employers, it will have to choose some way to do that other than by substantially burdening the employer’s religious liberty. The Court may then conclude that this holding, standing alone, does not violate the Establishment Clause because the government still retains alternative ways to accomplish its goals without burdening either the religious exercise of objecting companies or third parties. The government, as we suggested, could pick up the cost of the insurance coverage itself, and provide coverage to the employees of religiously-exempt organizations directly, or it could assign that obligation to health plan insurers—as it has done with the accommodations for religious non-profits. (And again, if it wanted to, the government could seek—and then redistribute—money from the exempt for-profit companies who are saving dollars by not offering the coverage.) This rejoinder to the Establishment Clause concern might not be available in many cases, but it is available in Hobby Lobby, and therefore should be invoked as a basis for narrowly deciding this case.

 

April 2, 2014

From Anti-drone Burqas to Face Cages: What Artists Are Showing Us about Surveillance and the Law

Cross-posted from The Life of the Law.

Remember pagers? As outdated as they seem now, these were once seen as the technological tool of choice for drug dealers (to say nothing of doctors). The police also used to rely on “bumper-beepers” to track suspects in criminal investigations. There has always been an arms race of technology in crime and policing.

Today, most people have some passing familiarity with the rapidly changing world of surveillance: the revelations about the NSA’s bulk phone metadata collection, the emergence of unmanned drones, and the growing sophistication of biometric technology.

The problem is that most people aren’t well-versed in the Fourth Amendment’s third party doctrine, or the “business records” provision of the Patriot Act. The complexity of the law in these areas–and the fact that the concepts aren’t that intuitive–makes public debate about the appropriate scope of government surveillance difficult.

That’s where the artists come in.

There are a small but growing number of visual artists and designers who have raised questions about the tools of government surveillance in direct, provocative, and accessible ways.

Case #1: Brooklyn-based designer Adam Harvey has created a series of wearable objects that draw attention to the tools of mass surveillance. His Stealth Wear line of “anti-drone” clothing is made of a special fabric intended to thwart thermal imaging devices that could be mounted on unmanned police surveillance drones. (The FAA is in the midst of crafting regulations for a future in which unmanned drones will occupy our public airspace.) The state of the law on drones is changing. Although the Supreme Court’s Fourth Amendment cases probably don’t require the police to obtain a warrant for their use, many state legislatures are considering statutory limits. What Harvey’s work highlights in a direct and arresting way, however, is that the prospect of sophisticated eyes in the skies might force us to change our public habits, even our clothing, if we wish to retain some anonymity or privacy.

Case #2: The police and Facebook alike are becoming interested in the capabilities of facial recognition technology. This biometric computer software can scan a picture of a face and compare it to a database of stored information. The computer algorithms in the software typically focus on the areas around the eyes, nose, and mouth. Artist Zach Blas’s Face Cages takes this idea and makes it literal: a painful metal mask that represents the areas targeted by facial recognition technology. Scanning faces in a crowd, like the use of unmanned drones in public spaces, is a murky legal area. The Supreme Court’s Fourth Amendment cases probably don’t provide individual protections against these biometric technologies. But Blas’s work suggests how such technologies may be “trapping” us in ways that nevertheless threaten widely held beliefs about privacy.

Case #3: New York based artist Heather Dewey-Hagborg’s Stranger Visions project takes on another cutting edge technology: the growing capacity of government to collect and analyze our genetic information. The art involves extracting DNA from discarded items Dewey-Hagborg finds in public spaces, such as cigarette butts and chewing gum. She then has the DNA extracted from these discarded items analyzed for specific genomic sequences associated with physical traits like hair and eye color, and creates life-size three dimensional masks of the persons she has “identified” from their garbage. Dewey-Hagborg’s faces are a best guess about the source of the DNA (although a recent scientific paper suggests that predictive modeling based on unidentified DNA samples could one day soon be a reality). The point isn’t accuracy, though. The Stranger Visions project asks us to confront directly how we feel about the fact that we are leaving genetic information behind everywhere we go. Should that information be considered as devoid of privacy expectations as the literal trash we throw away? Do we feel comfortable that third parties—both governmental and commercial—might be able to identify who we are from our genetic traces? The law here, too, is unclear at best.

Enormous technological changes are making it possible for us to be identified, watched, and listened to in ways that were once unimaginable. What we should do about these changes is difficult because the surveillance is sometimes surreptitious, often complicated to understand, and undetermined with regard to is regulation.

Art has the power to question, provoke, and reveal new truths to us. These artists are opening up the conversation about the place of surveillance and the law in our lives to anyone willing to watch and to listen.

Feature photo: Anti-drone burqa, Adam Harvey