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May 30, 2014

The Class Certification Checklist

This week, The Recorder published a column I authored, titled "The Class Certification Checklist." Here is the introduction:

The Supreme Court's decision in Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011), is must reading for anyone interested in class actions under Federal Rule of Civil Procedure 23. Justice Antonin Scalia's majority opinion unmistakably signals that the Roberts Court is more cautious in its approach to class actions than previous ones.

Intended for the class action novice, this article reviews the basic requirements for certification of a class action after Wal-Mart.

The Class Certification Motion

Rule 23(c)(1)(A) provides that "[a]t an early practicable time after a [class action is filed,] the court must determine by order whether to certify the action as a class action." Courts routinely permit discovery, including depositions of the class representatives, limited to class certification before full-blown merits discovery.

The class representative must file a motion to certify the class and bears the burden of establishing that each and every requirement for class certification is satisfied. Defendants seeking to limit their exposure often oppose certification and may assert the rights of absent class members. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 803-06 (1985).

The Merits Matter

The Supreme Court in Wal-Mart retreated from its statement in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974), that the merits of the claims in the complaint should not be considered by the district court in deciding a class certification motion. The court instead directed the lower courts to engage in a "rigorous analysis" in determining whether the requirements for certification have been satisfied, recognizing that the analysis "will entail some overlap with the merits of plaintiff's underlying claim. That cannot be helped." Wal-Mart, 131 S. Ct. at 2551 (citation omitted).

You can access the full checklist by viewing the column in its entirety here.

May 23, 2014

The Equality and Coercion Issues Inadequately Addressed in Town of Greece v. Galloway

Cross-posted from Justia's Verdict. Co-authored with Prof. Alan Brownstein.

Earlier this month, in Town of Greece v. Galloway, a closely divided (5-4) Supreme Court upheld a practice in Greece, New York (located upstate) of starting town board meetings with a short prayer. Under the practice (which goes back around fifteen years) the Town has invited local clergy to offer an opening prayer after the presentation of the Pledge of Allegiance. Prayer givers deliver their words over the Board's public address system, and many clergy have asked members of the audience to bow their heads, stand, or join in the prayer recitation. Christian clergy have given nearly all the prayers since 1999, and have been invited to do so by the Town, which often calls them "chaplain[s] of the month."

In upholding the Town's actions, the Court rejected both equality-based and liberty-based arguments that had been raised by the plaintiff challengers. The U.S. Court of Appeals for the Second Circuit had invalidated the Town's policy largely on the basis of equality concerns-because the prayers, in context, had to be understood as a public endorsement of Christianity, which violated the First Amendment's ban on laws respecting an establishment of religion. As we made clear in an earlier column, we agreed with this reasoning, but we also felt that the plaintiffs had good arguments that the prayers at board meetings implicated liberty concerns and were coercive, insofar as nonbelievers or persons of non-Christian faiths might feel compelled to participate (or feign participation) in a town's prayers, lest these minorities risk being viewed by the audience and, importantly, by the town board members themselves, as "outsiders" whose needs and interests might get less respect from local government on that account. For us, the coercion argument was much stronger here than it was in Marsh v. Chambers, a 1983 case in which prayers offered at sessions of the Nebraska state legislature that were upheld against an Establishment Clause challenge. Importantly, because persons who attend local government sessions are likely to be participants rather than just spectators, the pressure to conform and participate is significantly higher here than in the state or national legislative arenas. Because of these differences, the decision in Marsh tells us very little about the coercive nature of government-sponsored prayer at city council/town board meetings. In the setting of a city council, citizens who wish to address the council are coerced when they are asked to stand or otherwise affirm the prayer that is being offered in their name. A failure to comply would risk alienating the very political decisionmakers whom they hope to influence.

In the paragraphs below, we offer our reaction to the reasoning employed by the Court in resolving these equality- and liberty-based arguments. Given space constraints, we necessarily focus only on the principal opinion in the case, but we recognize that other Justices expressed significant observations and analyses that we hope at some future point to explore.

Should the Town Practice Have Been Viewed as Discriminatory?

Justice Kennedy's opinion-which announced the judgment of the Court and which was joined in full by the Chief Justice and Justice Alito and in part by Justices Scalia and Thomas-was to us quite surprising and disappointing. As we read and reread it, we feel it does not adequately address and respect the core constitutional values of religious liberty and equality, and often characterizes factual matters in strained ways. The analysis ignores critical legal distinctions or assigns substantive meaning to facts that should not matter. And perhaps most problematically, Justice Kennedy's apparent understandings of social reality do not accord with our sense of human behavior, cultural meaning, and proper institutional functioning. In that respect, our disagreement is not just with Justice Kennedy's interpretation of constitutional law in this case; we see a different real world than the one he describes and to which he applies constitutional principles.

Justice Kennedy begins by characterizing the Town's prayer practice as nondiscriminatory, which explains his conclusion that the policy does not violate constitutional principles of religious equality. But as the Second Circuit found, the Town's policy is glaringly discriminatory. The Town reaches out and calls congregations listed in local directories, and invites them to provide someone to offer a prayer at meetings. True, the Town asserts that it would permit individuals not affiliated with these congregations to offer prayers at meetings if such individuals asked permission to do so, but the Town acknowledges that it takes no affirmative steps to notify anyone in the community that such requests would be granted. Reaching out to some religious adherents in particular, and ignoring others who may not be affiliated with established congregations, hardly seems neutral.

Nor is the equality problem limited to unaffiliated religious persons; other Town residents may be affiliated, but with congregations located outside yet nearby Greece. Justice Kennedy observes that the Constitution does not require a town "to search beyond its borders for non-Christian prayer givers," but it is common in modern America (especially outside big urban areas) for religious minorities in one town to worship in a congregation in a neighboring community. To formalistically ignore such persons is to deny them the same respect afforded to the members of established local congregations; the Town is simply not treating all of its denizens equally in this regard.

Justice Kennedy's focus on the latitude the government-invited clergy should enjoy to say what they want without constraint also seems to us to completely miss the unequal respect issue, and also the liberty of conscience problem. He observes that once the government "invites prayer into the public sphere . . . it must permit a prayer giver to address his or her own God or gods as conscience dictates." But in the Town of Greece, prayer givers generally have not been expressing purely personal prayers. Instead, they have claimed to be leading a prayer made by the audience and the community. When government invites a prayer giver to speak on behalf of others, more than one individual's conscience is at stake, and the consciences of all of the people in whose name the prayer is offered must be given equal respect.

It is far from respectful to say, as Justice Kennedy does -- in response to concerns by audience members that they are being asked to stand and bow their heads and join in prayers -- that the clergy in question are used to "directing their congregations in this way." The key point is that the audience at a town board meeting is not a congregation -- a group of self-selected worshippers who decided to attend the prayer giver's church because they adhere to his beliefs and practices. Instead, audience members are a diverse group of citizens attending the board meeting on government business to address their representatives. They deserve to be treated as citizens, not congregants. Clergy who cannot distinguish between parishioners in the pews and the audience at a government meeting need to be reminded of this difference. The decision to attend a board meeting is not a decision to attend a church.

Justice Kennedy's Treatment of the Coercive Aspects of Town Prayers

Perhaps even more unconvincing and undeveloped is Justice Kennedy's response to the plaintiffs' contention that the prayer practice adopted by the Town of Greece is inherently coercive in nature because attendees will feel pressure to conform and participate in this religious exercise. Here, he argues that a town's practice must be understood in terms of the historical tradition of having legislative prayers, a tradition recognized and upheld in Marsh. But, as even Justice Kennedy curiously concedes, there is almost no evidence in the record establishing a long tradition of state-sponsored prayer at local government meetings. And this lack of tradition makes sense because, as noted above, Marsh is distinguishable insofar as citizens have no right, opportunity, or expectation to participate in state legislative or congressional sessions or to petition their representatives from the visitors' gallery the way they do at the local government level. Since passive spectators at state legislative and congressional sessions are not petitioning government, they could hardly complain that they feel compelled to join in state sponsored prayer out of concern that their petitions would be denied. Active participants at local government meetings, to the contrary, are attempting to influence their representatives and will be subject to pressure to conform to avoid alienating the very decisionmakers they are addressing.

Justice Kennedy offers precious little by way of substantial response to this crucial distinction. And what he does offer is so unrealistic, it is hard to accept that he truly believes these arguments himself. He begins this part of his opinion with the unlikely assertion that "the principal audience for the[] [Town Board] invocations is not, indeed, the public but lawmakers themselves." How can that be his interpretation of the facts? The individual clergy member offering the prayer generally faces the public audience with his or her back to the lawmakers. The clergy member asks the members of the public to stand, bow their heads, and join in prayer. The public -- obviously understanding the prayer as being directed at them -- stands and responds to the prayer giver's requests. The prayer giver often asserts that the prayer is being made on behalf of the audience and the community. Yet in Justice Kennedy's understanding, these prayers are primarily directed to the lawmakers and not to the public.

What's more, Justice Kennedy believes that there is a sharp distinction between the town board members asking the audience to stand and pray, and the invited clergy member who is offering the prayer telling the audience to do so. To us, this distinction has no significant relevance to the key question, namely, whether audience members reasonably feel pressure to join in state-sponsored prayers lest they offend or alienate the town board decisionmakers they will be petitioning a short time later. If a judge, employer or teacher were to invite clergy to offer a prayer in court, on the job, or at school, respectively, and then invited all persons in attendance to pray, the coercive nature of the circumstance would not be significantly mitigated by the fact that the prayer directive came from the invited clergy rather than the judge, employer or teacher.

Justice Kennedy also suggests that the fact that coercion may be intrinsic to these contexts is constitutionally insignificant as long as board members do not explicitly assert that they will take a person's refusal to pray into account in deciding matters before them, and so long as the citizens have no direct proof that board members have discriminated against residents who decline to pray. But basic constitutional law principles recognize that power is subject to abuse, including (perhaps especially) at the hands of petty functionaries. We structure many aspects of our system prophylactically to minimize the opportunities for abuse, particularly First Amendment abuse. Unfortunately, we simply cannot share Justice Kennedy's almost naïve sense that "should nonbelievers choose to exit the room during a prayer they find distasteful, their absence will not stand out as disrespectful or even noteworthy." For better or worse, in the real world, culture wars, friction between members of different faiths, and acrimony and retribution (whether conscious and unconscious) between religious and non-religious individuals and groups is very real. There is a reason Establishment Clause claims are sometimes brought by John or Jane Doe litigants.

Contested Views Regarding the Religious Nature of Prayer and the Relative Coercion in Different Settings

Most surprising and problematic of all is Justice Kennedy's seeming understanding of the nature of prayer and its meaning to the religious individual. To Justice Kennedy, public prayer at a town board meeting does many things and serves many functions, most of which are largely ceremonial in nature. He never suggests or even really acknowledges that prayer might be something else-that it is a personal, meaningful expression of the individual to G-d. But for many Americans that is precisely what prayer is, and its expression in a public meeting does not alter its fundamental nature. Indeed, the reason so many of the prayers offered before town board meetings in Greece are explicitly sectarian is that the person offering the prayer understands prayer as a meaningful communication to G-d and an expression of heartfelt faith.

Justice Kennedy's dismissal of the impact of these prayers on members of minority faiths or those who are not religious can be reasonably understood only if one accepts a watered-down definition and understanding of prayer. It is only in this sense that he can argue that if religious minorities and nonreligious citizens remain in the meeting room and stand along with everyone else for the prayer, no serious harm is done. He believes that their conduct would not "be interpreted as an agreement with the words or ideas expressed." But this argument presupposes that these town board prayers do not serve the function of true prayer, and that the people standing and bowing their heads are not engaging in a meaningful religious act. If the majority of individuals participate in these collective prayers as authentic expressions of prayer, of course a nonreligious individual or member of a religious minority engaging in the exact same behavior would necessarily be perceived as engaging in a similarly authentic religious exercise. Why would anyone interpret that individual's conduct differently?

In the past, Justice Kennedy has been more attuned to the real-world position in which non-majority persons find themselves when dealing with religion in the public sphere. Justice Kennedy wrote the majority opinion in Lee v. Weisman, where the Court struck down state-sponsored prayers at public middle and high school graduations. His sensitivity to context and to the coercive burden on students in that case stands in stark contrast to the ungrounded analysis that permeates his opinion in Town of Greece. Justice Kennedy asserts that the offering of state-sponsored prayer at a middle school or high school graduation is more coercive than the offering of prayers at a town board meeting. But in doing so, once again, his analysis misses the crux of the coercion argument in Town of Greece. Because they have completed their studies, graduating seniors at public school graduations no longer risk the exercise of discretionary authority by teachers and principals who might be offended if students refused to stand during a benediction. They are no longer subject to the control of school authorities. Residents seeking to influence town board members on one or more matters involving their personal needs and interests experience far greater coercion because they are subject to the discretionary decisions of the board that has orchestrated the offering of a prayer in which they publicly refuse to participate.

Nor was the challengers' claims in Lee stronger than those raised in Town of Greece simply because minors were involved in the former case. While it may be true that adults are more capable of standing their ground than are children, pressure is pressure whether or not someone gives in to it. For that reason, the fact that many adults might simply refuse to participate in town prayers and risk the alienation of the board-rather than sacrifice their religious principles-does not make their First Amendment claims any the weaker; coercion is impermissible because it violates the Constitution for the state to force someone to choose between adherence to one's religious beliefs or the risk of harm or loss, without regard to how the victim responds to the illicit pressure.

It seems that the world -- or at least Justice Kennedy's view of it -- has changed since Lee was decided.

May 10, 2014

How the Biggest Supreme Court Victory for Affirmative Action a Decade Ago Contributed to the Defeat for Affirmative Action Last Month in the Schuette Case

Cross-posted from Justia's Verdict.

When the Supreme Court in Schuette v. Coalition to Defend Affirmative Action upheld the Michigan state constitutional ban on race-based affirmative action (known as Proposal 2) a few weeks ago by a 6-2 vote, the overall message that emerged from the decision seemed sensible enough: While the federal Constitution permits states, under certain circumstances, to make limited use of race in allocating government benefits, nothing in the Constitution requires states to do so, and a decision by the people of a state to prohibit all race-based affirmative action preferences is permissible.

The Seattle Line of Cases on Which the Challengers to Proposal 2 Relied, Unsuccessfully

The problem with this straightforward message is that an earlier line of Supreme Court cases, running from the late 1960s until the early 1980s, held that while race-conscious programs may not be required, neither can they be terminated in certain problematic ways. The key decision in this line of authority is the intuitively attractive yet controversial and somewhat confounding 1982 ruling in Washington v. Seattle School District No. 1. In order to cure widespread de facto racial segregation in Seattle-area schools, Seattle School District No. 1 adopted a voluntary integration plan that extensively used race-based pupil reassignment and busing to eliminate one-race schools. The Seattle program prompted the people of Washington to enact Initiative 350, a statewide measure that barred local school districts throughout Washington from reassigning or busing for the purpose of racial integration, but continued to permit local districts to reassign or bus for all other educationally valid reasons.

By a 5-4 vote, the Court struck down the plebiscite. The Court declined to rest its holding on a finding of invidious racist intent on the part of the electorate. Instead, the Court invalidated Initiative 350 because the measure singled out racial busing-a program of particular importance to racial minorities-and moved this issue from the control of local decision-making bodies to central management at the statewide level, where minorities were less likely to enjoy democratic success. This selective and unfavorable treatment of public programs that were distinctively beneficial to minorities, the Court said, denied such minorities the equal protection right to "full participation in the political life of the community."

In the Seattle line of cases, the Supreme Court laid out a two-pronged test: First, a challenger must show that the law in question is "racial" or "race-based" in "character," in that it singles out for special treatment issues that are particularly associated with minority interests. Second, the challenger must show that the law imposes an unfair political process burden with regard to these "minority issues" by entrenching their unfavorable resolution. (Mere repeal by the very body that had adopted a policy benefitting minorities would not be problematic.)

The challengers to Proposal 2 in Michigan relied directly on this reasoning. First, they argued, Proposal 2 was racial in character in that it dealt specially with an issue-race-based affirmative action-that is of distinctive interest and benefit to racial minorities. Second, Proposal 2 dealt with this racial issue by entrenching a policy that was unfavorable to minorities at a level of government-the state constitution-where minorities are less likely to succeed than they are at lower levels, such as local government or university administration. The argument was that although Michigan may be free to repeal affirmative action programs, it cannot repeal such programs at a level higher than the one at which they were initially adopted, just as the State of Washington could not repeal racial busing at the statewide level, rather than the local level.

How the Justices Dealt With Seattle

In turning away this challenge, Justices Scalia and Thomas acknowledged that the Seattle case controlled, but concluded that it should be overruled. Justices Ginsburg and Sotomayor (who dissented in the Court's outcome) likewise thought Seattle governed, but they would preserve and apply Seattle, and would have struck down Proposal 2. (Justice Breyer distinguished Seattle on rather technical grounds, and Justice Kagan did not participate.)

In an important opinion that many view as the pivotal one in the case, Justice Kennedy, joined by two other Justices, concluded that the Seattle case may have been correctly decided, but that it did not govern the Proposal 2 matter. According to Justice Kennedy, Initiative 350 in Seattle was bad because it prevented the Seattle School District from dealing with a racial segregation problem to which the government itself had contributed. As Justice Kennedy put the point: "The Seattle Court, accepting the validity of the school board's busing remedy as a predicate to its analysis of the constitutional question, found that the State's disapproval of the [local] school board's busing remedy was an aggravation of the very racial injury in which the State itself was complicit."

Justice Kennedy disavowed any broader reading of the Seattle ruling, and in particular declined to accept the two-part analytic framework that the Court purported to apply in that case. As Justice Kennedy wrote:

The Seattle Court . . . establish[ed] a new and far-reaching rationale. Seattle stated that where a government policy "inures primarily to the benefit of the minority" and "minorities . . . consider" the policy to be "'in their interest,'" then any state action that "place[s] effective decisionmaking authority over" that policy "at a different level of government" must be reviewed under strict scrutiny. In essence, according to the broad reading of Seattle, any state action with a "racial focus" that makes it "more difficult for certain racial minorities than for other groups" to "achieve legislation that is in their interest" is subject to strict scrutiny. . . . And that reading must be rejected.

As Justice Scalia pointedly observed, Justice Kennedy's recharacterization of Seattle has serious problems:

[Justice Kennedy's opinion] reinterprets [Seattle] beyond recognition. . . . As for Seattle, what was really going on, according to [Justice Kennedy], was that Initiative 350 had the consequence (if not the purpose) of preserving the harms effected by prior de jure segregation. . . . [T]his describes what our opinion in Seattle might have been, but assuredly not what it was. The opinion assumes throughout that Seattle's schools suffered at most from de facto segregation, . . . that is, segregation not the "product . . . of state action but of private choices," having no "constitutional implications."

(As an aside, I find it somewhat ironic that Justice Scalia criticizes Justice Kennedy's manipulation of precedent here. Although I agree with him that Justice Kennedy does not adequately engage, but rather hollows out, Seattle, the writing that Justice Kennedy's opinion reminds me of most is Justice Scalia's own opinion in Employment Division of Oregon v. Smith, the 1990 religious freedom case in which Justice Scalia guts but does not forthrightly overrule old free exercise cases.)

The Post-Seattle Cases That Eclipsed Seattle's Essence

So if Justice Kennedy's (re)reading of Seattle is less than convincing, is there a way to justify his bottom line? For me, the best defense of the outcome in Schuette comes not from creative interpretations of Seattle, but from judicial and societal developments that have emerged after Seattle was decided. As Professor Evan Caminker and I have suggested in academic writings, the argument (whether one finds it convincing or not) would be that elimination of affirmative action programs today does not as clearly disadvantage racial minorities as did the Seattle initiative. Modern affirmative action programs are double-edged-Proposal 2 backers would argue-because such programs inflict stigmatic harm on minorities and impose tangible disadvantages on certain minority groups, even as the programs attempt to confer tangible benefits on some minority groups. This argument challenges, as overly simplistic, the notion that the programs terminated by the Proposal 2 "inure[ ] primarily to the benefit of the minority."

This argument would build on more recent Supreme Court cases that assuredly support such an ambivalent characterization of affirmative action programs. Over the past two-plus decades, City of Richmond v. J.A. Croson Co. and its progeny have justified strict scrutiny for purportedly "benign" race-conscious programs in part through renewed emphasis on certain costs that affirmative action programs threaten to impose on minorities (whether uniquely or along with others). According to the Court, such programs threaten to, among other things, embrace and "foster harmful and divisive stereotypes," which might "balkanize us into competing racial factions."

And this is precisely the basis on which Justice Kennedy declines to apply the Seattle framework. He reminds:

In cautioning against "impermissible racial stereotypes," this Court has rejected the assumption that "members of the same racial group-regardless of their age, education, economic status, or the community in which they live-think alike, share the same political interests, and will prefer the same candidates at the polls." . . . It cannot be entertained as a serious proposition that all individuals of the same race think alike. Yet that proposition would be a necessary beginning point were the Seattle formulation to control. . . .

Let me be clear: the suggestion that contemporary affirmative action programs do not primarily benefit racial minorities cannot easily be squared with the holding of Seattle (which is why I think Justice Scalia was correct that either Seattle or Proposal 2 had to be rejected). Initiative 350 eradicated voluntary racial busing-a race-conscious affirmative action program that, in its day, was extremely controversial, as both the majority and dissent in the Seattle case recognized. Racial busing imposed both practical and emotional costs on African American schoolchildren, and it generated interracial divisiveness and even hostility. So modern affirmative action is not easily distinguished from the programs involved in Seattle.

But, again, Seattle's judicial attitude in this respect has been eclipsed by more recent cases expressing much more skepticism about race-based affirmative action. The Seattle analysis may simply not survive the more recent cases, and if this is true the Court should have said Seattle is no longer good law, rather than manipulate the 1982 ruling in inventive but unpersuasive ways.

An Unlikely Contributor to Seattle's Demise: Grutter v. Bollinger

No one should be surprised that cases from the last 25 years like Croson (along with Adarand Constructors v. Pena, Parents Involved in Community Schools v. Seattle School District No. 1, among others)-all of which have made it considerably harder for states to engage in affirmative action-are in considerable tension with, and have effectively undermined, Seattle. What is surprising is that the single biggest judicial victory for affirmative action-the 2003 Grutter v. Bollinger case in which a 5-4 Court upheld the University of Michigan Law School's race-based affirmative action program-also might have (unwittingly) undermined Seattle. Indeed, Seattle's demise may have been baked into the very cake of Grutter's analysis.

To see this, we need shift focus from the alleged costs of affirmative action to its benefits. Justice O'Connor's reasoning upholding the Michigan Law School's affirmative action policy in Grutter-and the larger diversity justification trend of which Grutter is an example-emphasizes the advantages affirmative action creates for non-minorities, and in so doing erodes the idea that affirmative action is especially beneficial for underrepresented groups. As a pair of law professors observed years before Grutter, diversity is an appealing justification that may "enable an educational affirmative action program to pass constitutional muster because democratic and dialogic educational benefits accrue to all students" (emphasis added). And hear the words of Justice O'Connor in Grutter, defending the Michigan Law School plan without regard to whether it helps minorities in particular:

The[] benefits [of diversity] are 'important and laudable, because 'classroom discussion is livelier, more spirited, and simply more enlightening and interesting' when the students have 'the greatest possible variety of backgrounds.' . . . The Law School's claim of a compelling interest is further bolstered by its amici, who point to the educational benefits that flow from student body diversity. . . . In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and "better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals." . . . These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. . . . What is more, high-ranking retired officers and civilian leaders of the United States military assert that, "[b]ased on [their] decades of experience," a "highly qualified, racially diverse officer corps . . . is essential to the military's ability to fulfill its principle mission to provide national security." . . . [And] [i]n order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.

It is perfectly understandable that a "win-win" rationale for race-based affirmative action (that emphasizes how such programs benefit everyone) would be attractive, in both legislative and judicial arenas. But if affirmative action is styled in these terms only, then the Court could naturally think that the intended beneficiaries of affirmative action-the entire polity-should be empowered to decide whether they think the benefits outweigh the costs. Proposal 2 and measures like it are no longer as easily viewed as majorities cutting off programs that help minorities, since the elimination of affirmative action (on this view) hurts majorities as well.

Lest I be misunderstood, I should be clear that I do embrace the diversity rationale. But I wish it hadn't come about as a substitute for-as opposed to a supplement to-a remedial rationale that highlights the distinctive importance of access for certain minority racial groups. In the Croson ruling from a quarter century ago (involving a preference awarded to minority contractors in Richmond), the Court sent the message that the goal of remedying past discrimination was not one on which government should be able to act easily without detailed findings as to exactly what discrimination occurred, when, and by whom. No one denied that there had been overwhelming, pervasive, and persistent societal discrimination against African Americans in Richmond for generations. Yet the main opinion in Croson said, in dismissing the relevance of this history: "It is sheer speculation how many minority firms there would be [today] absent past societal discrimination." This is true, but to deny government officials the ability to redress past discrimination altogether, simply because the enormity of that task creates uncertainty about whether any proposed remedy is perfectly calibrated to the wrong, creates a perverse situation. The greater the past injustices, the more powerless the government is today to deal with their effects, which are undeniably real and lingering, but inevitably somewhat fuzzy in their particulars.

It is for this reason that the goal of remedying past discrimination has largely been abandoned as a legal justification for affirmative action programs, at least in the higher education setting, the area where debate remains most lively. Instead, diversity of the student body as a pedagogical asset is (understandably) the primary interest that universities assert (as they did in Grutter) to defend race-based programs. Again, I do not disagree with the idea that diversity can be a compelling interest. But I do think that most defenders of affirmative action, were they completely honest, would say that the remedial justification, especially in the case of African Americans, is the most natural, obvious, and compelling reason to maintain race-based programs. And this instinct explains why defenders of affirmative action generally believe that such programs are distinctively helpful to minorities, the very premise of the Seattle ruling that Justice Kennedy thinks cannot be acknowledged by government.

May 1, 2014

UC Davis law students seek to right historic wrong with posthumous California Bar admission of Chinese lawyer

More than a century after a New York lawyer was denied the opportunity to practice law in California because of state laws that barred Chinese immigrants from most careers and opportunities, UC Davis law students are seeking his posthumous admission to the California State Bar.

The students in the UC Davis School of Law Asian Pacific American Law Students Association (APALSA) are asking the State Bar of California, and eventually the California Supreme Court, to admit Hong Yen Chang, who was denied a license to practice law in California in 1890.

Chang attended Yale as part of the Chinese Educational Mission, a pioneering program initiated by the Chinese government. He then left the United States and later returned on his own to study law. He earned a degree from Columbia Law School in 1886 and sat for the New York bar exam by special act of the legislature. When he was admitted to the New York state bar, The New York Times reported that Chang was the first Chinese immigrant admitted to any bar in the United States. In 1890, he came to California with the intention of serving San Francisco's Chinese community as an attorney.

At that time, the federal Chinese Exclusion Act banned Chinese immigrants from naturalizing as citizens, and a California law prohibited noncitizens from practicing law in the state. Taken together, these laws made it impossible for people of Chinese descent to earn law licenses in the state. Chang petitioned the California Supreme Court, but was denied admission.

He went on to a distinguished career in banking and diplomacy, but his story was not forgotten. Now, the students are seeking a symbolic victory on behalf of Chang and others who suffered as a result of laws that discriminated against the Chinese.

"Admitting Mr. Chang would be a powerful symbol of our state's repudiation of laws that singled out Chinese immigrants for discrimination," said Gabriel "Jack" Chin, a professor at UC Davis School of Law and APALSA's faculty adviser on the project. "At the time Chang was excluded from the practice of law in California, discrimination against Chinese persons was widespread. Congress prohibited all Chinese immigration. Even the California Constitution dedicated an entire article to restricting the rights of Chinese residents."

The UC Davis School of Law California Supreme Court Clinic is representing APALSA in the case. It has formally requested the State Bar to support the project and will file a petition with the California Supreme Court seeking Chang's admission. The clinic, the first and only law school clinic of its kind, represents parties and amici in a wide range of both civil and criminal matters pending before the California Supreme Court.

Other states have posthumously admitted applicants who were excluded from their respective bars based on similar discriminatory laws. In 2001, the Washington Supreme Court admitted Takuji Yamashita, a Japanese immigrant who had been refused admission to the profession in 1902. And in 2010, the Pennsylvania Supreme Court posthumously admitted George B. Vashon, an African American who had been denied admission in 1847 because of race.  

Chang's descendants remain in the San Francisco Bay Area, including grandniece Rachelle Chong, the first Asian American to serve as a commissioner of the Federal Communications Commission and of the California Public Utilities Commission. "In my generation, our family is extremely fortunate to have three lawyers admitted to the California State Bar: my cousins Suzanne Ah Tye, Kirk Ah Tye, and myself," said Chong. "It would be fitting and right to have my granduncle's exclusion reversed by the California Supreme Court to ensure that justice, albeit late, is done. Our family is honored that the UC Davis APALSA students have taken up the issue of righting a terrible wrong."

"From its inception more than 40 years ago, UC Davis School of Law has been dedicated to the ideals of social justice and equality espoused by Dr. Martin Luther King Jr., for whom our law school building is named," said Dean Kevin R. Johnson. "This effort by our students and faculty to admit Hong Yen Chang to the California State Bar stands strongly within that tradition and is deserving of support."

For more information on the effort to gain bar admission for Hong Yen Chang, contact Professor Gabriel "Jack" Chin.

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