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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.


February 28, 2014

Consistency in the Treatment of Religious Liberty Claims: Hobby Lobby and Town of Greece Viewed Side by Side

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

In the space below, we offer some unconventional thoughts about the highly-anticipated Sebelius v. Hobby Lobby Stores, Inc. cases that will be argued in the Supreme Court next month, and that involve challenges under the federal Religious Freedom Restoration Act (RFRA) to the Affordable Care Act's requirement that employers must provide contraceptive services in their healthcare policies offered to employees. In particular, we try to lay the Hobby Lobby disputes alongside the other big case this Term that raises religious liberty issues, Town of Greece v. Galloway. That case was argued last Fall but hasn't yet been decided, and involves the permissibility of state-sponsored prayers before town board meetings. (Town of Greece involves important religious equality issues, as well as religious liberty concerns, but we limit our discussion in this column to plaintiffs' religious liberty claims.) By comparing the two settings and the way advocates in each of them have framed their religious liberty arguments, we hope to identify more common ground than has previously been acknowledged in these religious skirmishes at the Court. At the same time, we try to convince readers and other commentators that with regard to certain issues, in all fairness their approaches to the two disputes should be more consistent. (One of us has previously expressed this perspective in other fora.)

The "Liberal" and "Conservative" Take on the Two Lawsuits

Although few analysts have been looking at the two lawsuits together, the two cases have much in common. Neither dispute is particularly easy to resolve, in part, we believe, because both controversies raise serious religious liberty issues. As a matter of law and social reality, the plaintiffs in both lawsuits assert serious religious liberty claims that deserve our attention, empathy, and respect. Indeed, we think that important parallels between the two settings suggest that some of the main arguments raised against the religious liberty claims in each case would apply with roughly equal force in the other case as well.

We start by noting that the gist of the commentary among church-state scholars, including many colleagues we greatly admire and respect, seems sharply split and polarized on these cases. Generally speaking (and obviously there are exceptions to our claim here), liberal commentators see a significant religious liberty issue in Town of Greece, but are dubious about, if not dismissive of, the plaintiffs' claims in the Hobby Lobby set of cases. Conversely, conservative commentators tend to see a significant religious liberty issue in Hobby Lobby, but are dubious about, if not dismissive of, the plaintiffs' claims in Town of Greece. Perhaps we are wrong to see parallels between these two cases, but we worry that political and cultural polarization is making it harder for everyone to appreciate the similarly legitimate concerns of claimants who, from one perspective or the other, are on the wrong side of the culture-war dividing line. And the protection of religious liberty is itself undermined if we choose to protect it only when nothing that we value personally is at stake.

Liberals (again, as a general matter) place special value on gender equity, and see universal access to medical contraceptives as an important public health and women's rights concern. For them, protecting religious liberty in a situation that creates even small risks to women's health and equality is a hard sell. Conservatives, by contrast, attach important value to government-sponsored religious activities, such as state-sponsored prayers during public events. If protecting religious liberty requires placing some limits on such religious activities, conservatives will experience the price of religious freedom in this context as being particularly costly.

But (and this is really our big suggestion) if we expect other people to bear what they experience as real and significant costs in order to protect religious liberty, then we have to be prepared to demonstrate that we are willing to accept costs to interests that we ourselves value as well. In Town of Greece, liberals seem willing to protect religious liberty when something they do not value, public prayer, may be burdened, but are disinclined to protect religious liberty in Hobby Lobby. And conservatives are willing to protect the religious liberty of Hobby Lobby, but assign little, if any, weight to the religious liberty interests of the Town of Greece claimants.

The Dismissive Attitude of Opponents to the Religious Claimants in Each Case 

Indeed, in each case opponents of the plaintiffs/religious claimants seem incredulous, wondering what the religious adherent can possibly be complaining about. In Hobby Lobby, the suggestion seems to be that there is no reason to think that the plaintiffs' rights are burdened there at all. If a large corporation is engaged in commerce, it is subject to hundreds of regulations regarding working conditions, hiring, salaries, health plans and retirement plans. The benefit plans it provides to its employees may cover thousands of health and retirement topics. Being in commerce and employing hundreds or thousands of people means that a lot of things out of your control are going to happen. That is the way the world is, and how it has to be. In Town of Greece, the argument is made against the claimant there that town board meetings necessarily involve exposure to a lot of disagreeable expression from both board members and the public. If you attend such a meeting, you will have to sit through a lot of speech that you find objectionable. That's the way the system works. Learn to live with it.

But when we ask "What can they possibly be complaining about?" in religion cases, we must remember that a meaningful commitment to religious liberty means that burdens relating to religion must be treated specially; they must be evaluated differently than other costs or consequences. A business regulation requiring a business to engage in conduct that the owner or manager's religion prohibits requires a different analysis than the analysis that would apply to other regulatory burdens that owners and managers dislike. Similarly, having to sit through a state-sponsored prayer is different than having to sit through a politically- or ideologically- annoying discussion of fiscal or other policy issues. What is key here is that if religious liberty claims deserve attention in either of these contexts, regardless of the way things generally work, then religious liberty claims deserve respect in both situations.

The Inconsistency in the Treatment of Risk-Based Arguments

Consider some more focused and sophisticated arguments against the plaintiffs in each case. Some liberal commentators argue that an employer objecting on religious grounds to insurance coverage requirements under the Affordable Care Act may simply decline to continue to offer a health insurance plan to its employees. To be sure, the employer will have to pay a penalty for doing so, but that payment will probably be far less than the savings it incurs by ending employee health care benefits. It may be that there are other costs (say, in recruiting and retaining employees) associated with discontinuing employee health insurance coverage, but it is unclear whether, and in what circumstances, those costs would constitute a substantial economic burden on businesses declining to offer health plans to their employees. Because the economic consequences of declining to offer health plans is indeterminate, and may in fact be modest or negligible, courts should not consider claimants like Hobby Lobby to be subject to a substantial burden on their religious liberty.

It is easy to understand, however, why an employer would legitimately worry that terminating the existing health plans it offers its employees might have significant negative consequences on its bottom line. Most employees would not look kindly on having their existing health plans terminated and being told to purchase insurance through exchanges developed under the Affordable Care Act. So rejecting the notion that employers are burdened here would in effect reject the idea that a risk of adverse consequences constitutes a cognizable burden on religious liberty. No one knows for sure what will happen if the employer protects its religious liberty interests by terminating the health care plans for its employees, but the risk and reason for concern are there. The employer's worry can hardly be characterized as mere speculation.

Conservatives see that in Hobby Lobby, but seem to ignore similar concerns raised by the claimants in Town of Greece. Plaintiffs there also identify a significant risk-based burden on their religious liberty: They worry that the town board members whom they will be petitioning for support or assistance when the business part of the town board meeting is conducted will be alienated by the claimants' refusal to stand, bow their heads, or otherwise participate in the state-sponsored prayers that open the board meeting. Of course, no one knows whether or not board members will be alienated by or annoyed at audience members who choose not to participate in the prayer, or whether or not those board members will allow their feelings about claimants' not participating in the offered prayer, or publicly disassociating themselves from it, to influence the way the board members hear and decide the matters on which the claimants offer public comment. But here again, the risk and reasons for concern are present.

We believe that a significant risk of adverse consequences, that is, a reasonable ground for worrying about adverse consequences, should be understood to impose a legally-cognizable burden on protected interests. Certainly, the chilling effect arising from the risk of being exposed to penalties from overbroad laws is recognized as constitutionally-significant for freedom of speech purposes. But in Hobby Lobby, liberals seem unwilling to accept that indeterminate burdens on the religious liberty of employers deserve recognition, and in Town of Greece, conservatives seem unwilling to accept that indeterminate burdens on the religious liberty of individual non-adherents should be recognized, and steps taken to alleviate them. We think that the question of whether the risk of adverse consequences should be recognized as substantial burdens on religious liberty should be answered the same way in both cases.

Inconsistency in the Treatment of Attenuation and Misattribution Arguments

A separate criticism of plaintiffs' claims in the two cases focuses on arguments about attenuation, perception and attribution. In cases like Hobby Lobby (and perhaps more so in the related cases brought by religious non-profits), claimants are concerned that they will be complicit in sinful behavior. In addition, religious nonprofits in particular are concerned that they will be misperceived as supporting or acquiescing in sinful behavior, or that support for such behavior may be attributed to them. These concerns transcend material subsidy and emphasize the expressive dimension of being associated with unacceptable conduct. These concerns for us bring to mind the Catholic idea of "scandal." Liberals dismiss such claims based on complicity as being too attenuated. Concerns about misattribution are also deemed insignificant since they can be so easily remedied by the religious nonprofit's publicly distancing itself from religiously objectional behavior by proclaiming its opposition to the conduct at issue.

A similar problem with misperception-indeed, we suggest an arguably more powerful example of it- also arises in the Town of Greece litigation. Commonly, the prayer giver at the Town of Greece board meetings offered what may be called a "we" prayer rather than an "I" prayer. The member of the clergy who is offering the prayer purports to be speaking to G-d in the name of the whole audience and the community. Sitting silently by, and certainly standing or bowing one's head, while someone claims to be praying in your name creates the perception that you acquiesce or support his doing so. We consider this to be just as clear a misperception burden as the concern of religious individuals and institutions that they will be perceived as supporting the use of medical contraceptives or abortion-inducing pills when such services are covered by the health care plans they provide to their employees. Accordingly, in our judgment, if either misperception argument deserves to be taken seriously, then the misperception arguments in both cases deserve to be taken seriously.

Yet here, again, liberal commentators who sympathize with the misperception concerns of claimants in Town of Greece seem less concerned with the misperception concerns of claimants in the contraceptive mandate cases. The problem is even more acute for conservatives who recognize misperception and misattribution as a problem in the contraceptive mandate cases, but seem unconcerned about the claimants in Town of Greece. In the contraceptive- mandate cases, there is no risk of a penalty or adverse consequence if employers very publicly condemn the mandate and express their lack of support for the use of medical contraceptives. Misattribution can be somewhat mitigated by their public rejection of the government's requirements. In Town of Greece, however, by publicly disassociating themselves from the state-sponsored prayers (either prior to, or in the wake of, the board meeting) dissenters risk alienating the very decisionmakers on the board to whom they are directing their petitions. The risk of adverse consequences is thus increased by their attempts to avoid misperception and misattribution.

We recognize, of course, that Town of Greece is a constitutional law case and that the contraceptive mandate litigation involves statutes and public policy for the most part. Thus, one might plausibly argue that town-board prayers are constitutional, while also believing that, as a public policy matter, they are a bad idea, or at least should be carefully structured in ways to minimize their coercive impact. But we don't hear conservatives making this argument; they seem to ignore the burden on religious liberty both for constitutional and policy purposes.

There may be other powerful arguments that could be mustered to support our suggestion that people who take religious liberty seriously should be respectful of plaintiffs' claims in both Town of Greece and Hobby Lobby and related contraceptive-mandate cases (and, conversely, that people who reject religious liberty should do so in both cases). But our key point is that we have to work hard at not seeing religious liberty issues through the red and blue prism of contemporary culture wars. Most importantly, we should be careful not to allow our sympathies for interests that are aligned against particular claims for religious liberty to prevent us from acknowledging and empathizing with plaintiffs whose concerns warrant our respect. Recognizing the reality of the religious liberty concerns asserted by claimants in Town of Greece and Hobby Lobby (and related cases) does not mean that we must agree with the remedy sought in either case. But it does reflect a willingness to take such claims seriously, even when we are uncomfortable in doing so.

February 14, 2014

The Ninth Circuit, in SmithKline v. Abbott Labs, Bars Lawyers From Removing Gay/Lesbian Jurors: Part Two in a Two-Part Series

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

In Part One of this series, we began to analyze the recent decision from the federal Ninth Circuit Court of Appeals in SmithKline Beecham Corp. v. Abbott Laboratories. The three-judge panel there held that, in light of the Supreme Court's decision last summer in United States v. Windsor (invalidating the federal Defense of Marriage Act, DOMA), all government discrimination on the basis of sexual orientation is subject to "heightened scrutiny" under the Equal Protection Clause and that, accordingly, it violates the Constitution for lawyers to use peremptory challenges to strike would-be jurors on account of the juror's sexual orientation. (For background on the Abbott case and the general topic of peremptory challenges, readers may want to consult Part One.) In particular, we discussed whether the Ninth Circuit was right to read Windsor to have signaled a decision by the Supreme Court that intermediate level scrutiny governed DOMA, and that intermediate level scrutiny should also govern all other sexual-orientation-based discrimination.

The Abbott decision is already influencing litigation involving discrimination against gays and lesbians far beyond the issue of jury selection. Earlier this week, for example, as a result of the Abbott court's reasoning and holding, the Governor and Attorney General of Nevada announced that they would no longer defend the state's ban on same-sex marriages in federal court because the arguments supporting the ban were "no longer defensible." In the space below, however, we limit our analysis to the implications of Abbott for peremptory challenges generally and sexual-orientation-based peremptory challenges in particular.

Do Peremptory Challenges Threaten to "Exclude Entire Classes of Individuals?"

As one of us has noted in earlier writings, including a column posted here, courts have been reluctant to expand the list of juror attributes on which peremptories may not be exercised in part because of a concern over slippery slopes. If peremptories cannot be used on the basis of race, and gender and (now) sexual orientation, then what about disability, age, or alienage, etc.? While Judge Reinhardt's Ninth Circuit opinion in Abbott never really addresses this question directly, he implicitly suggests that limiting prohibitions on peremptories to only those groups that benefit from "heightened scrutiny" will arrest the slippery slope. In this regard, he analogizes to and quotes heavily from the cases the Court has handed down prohibiting race- and gender-based peremptories. He says, for example, drawing on the gender-based peremptory case, J.E.B. v. Alabama ex. rel. T.B., that "striking potential jurors on the basis of their gender harms 'the litigants, the community and the individual jurors' because it reinforces stereotypes and creates an appearance that the judicial system condones the exclusion of an entire class of individuals."

From one perspective, this kind of analysis is overblown particularly in cases like J.E.B. Peremptory challenges, even if used aggressively on the basis of gender, don't necessarily threaten to remove "an entire class of individuals" from juries, because both sides of a case get the same number of peremptories. If one side is removing women (as in J.E.B.), perhaps there is reason to believe the other side would be attempting to remove men. If these opposing uses of peremptories are equally effective, then there may be no reason to believe there would be fewer women on any particular jury, let alone across all juries.

The Special Case of Numerical Minorities, and Minorities Without a Natural Majority Counterpart

There are forceful responses to this suggestion, however, that may support Justice Reinhardt even though he doesn't really address this issue (or the nitty gritty of applying heightened scrutiny at all, for that matter.) First, the neutralizing effect of the opposing use of gender-based peremptories arises, if at all, only because men and women are roughly equal in number in most jurisdictions and (somewhat less so) in the draw of the would-be jurors and replacement jurors for any particular jury. But this neutralizing or offsetting effect is not present where the bases on which peremptories are exercised involve (numerical) minority and majority groups.

A simple numerical example may help drive the point home. Suppose a jurisdiction had a demographic makeup of 75% whites and 25% racial minorities. And suppose that the initial draw of twelve would-be jurors exactly mirrors these percentages-that is, nine whites and three non-white minorities are drawn. Suppose further that each side is given three peremptory strikes, and that each side uses its peremptories to aggressively remove people based on their white or minority race, respectively. So one side (perhaps the side of a Title VII minority plaintiff) uses its three strikes to remove three white would-be jurors, and the other side uses its three strikes to remove the three people of color who were initially drawn for the jury.

So now we are left with six whites, six slots to fill, and no peremptory challenges. Those six empty slots are then filled, and again, if we are assuming a draw that reflects the demographics of the larger pool, on average only 1.5 (or 25% of six) minority jurors would be selected, and 4.5 whites (75% of six) would join the group. The overall makeup of the jury after all is said and done would be 10.5 whites and 1.5 minority folks-half the number of minority persons who were initially drawn before each side was allowed to engage in a racial peremptory war. Because this scenario could repeat itself across many or most juries, allowing each side to use race to strike prospective jurors could very likely diminish minority jury participation writ large. This systemic effect is what makes the race-based peremptory-challenge cases easy to defend for those of us who care about inclusion and fair representation of the community on juries.

And what is true for race is also true for sexual orientation, insofar as gays and lesbians are, like persons of color, numerical minorities. Indeed, peremptory challenges, if allowed on the basis of sexual orientation, may be particularly likely to reduce participation of gays and lesbians on juries, writ large, because unlike race and gender, in the sexual orientation setting, it is less natural to think about "opposing" uses of peremptories. In the racial setting, if one side excludes blacks, the other may find it advantageous to remove whites. And the same is true for removing women and men. But even if one side tries to remove one or two would-be jurors because they are gay, the other side is less likely to think to remove other jurors because they are straight.

The problem here is that equal protection doctrine both legally and intuitively doesn't always operate with the kind of symmetry that the Court has developed in race and gender discrimination cases. In race and gender cases, the Court justified its application of heightened scrutiny initially by examining past discrimination against the class of racial minorities and women. Over time, however, the Court shifted its attention in these cases away from a suspect class and toward a suspect classification. The Court's focus was no longer on whether a law disadvantaged racial minorities or women, but rather on whether the challenged law employed a racial or gender classification.

But this shift from suspect class to suspect classification seems more counterintuitive when other equal protection cases are considered. Thus we think more about discrimination against aliens than we do citizenship classifications, more about discrimination against non-marital children than marital children classifications, and more about discrimination against gays and lesbians than sexual orientation classifications. Accordingly, it would hardly be surprising to discover that lawyers might not engage in any affirmative effort to identify and remove straights from a jury, generally speaking, the way they might identify and strike men, women, blacks, whites, and gays. So if sexual-orientation peremptories are permitted, then Judge Reinhardt's concern about the exclusion of an entire group must be taken seriously.

Implementing Abbott's equal protection ban on sexual-orientation-based peremptories might not be easy in practice, however. As Kathryne Young and others point out, unlike a person's race and sex, sexual orientation isn't obvious to an outside observer, so policing sexual orientation-based discrimination may raise distinctive problems. It is often difficult enough to prove that an attorney who is striking African-Americans or women is doing so because of their race or gender when the racial or gender identity of the stricken jurors is apparent. Objections to peremptory strikes based on sexual orientation may also involve placing some would-be jurors in the uncomfortable position of having to affirm or deny their membership in an LGBT group. The Ninth Circuit began to discuss these problems, but the implementation of this new rule will require more care and attention as it is applied in practice, which is often the case after cutting-edge constitutional decisions are rendered.

The Link Connecting Jury Service and Voting

Besides practical concerns, there is a more fundamental, theoretical objection to the constitutional doctrine developed by the Supreme Court and the lower courts in this area of law. That is whether the Equal Protection Clause is the appropriate prism through which to view the problem of juror exclusion in the first place. A different set of constitutional provisions, the provisions dealing with voting and other political rights, may provide a better foundation for helping courts to decide how skeptical to be about peremptory challenges. Jury service has traditionally been tied, and analogized, to voting, and this linkage makes sense: jurors, like individuals casting ballots for members of Congress or the President, exercise their power by voting for particular results; jurors implement policy when they decide cases, just as voters help shape policy by electing representatives or adopting initiatives. Indeed, until the later Twentieth Century, voting and jury service were considered "political rights" governed not so much by the Fourteenth Amendment, but more directly by the voting rights amendments, including the Fifteenth (which prohibits race discrimination in voting); the Nineteenth (which prohibits gender discrimination in voting); the Twenty-Fourth (which in effect prohibits wealth discrimination in voting), and the Twenty-Sixth (which prohibits age discrimination in voting.)

If we take the juror-as-voter analogy seriously, then removing people from juries becomes more problematic, because certainly we would not allow governmental actors (at least not since the Supreme Court decided important voting rights cases dating back to the 1960s) to prevent any would-be voter from participating in any particular election unless there were to be a compelling justification for doing so. This may partly explain why some Justices (most notably Justice Breyer) have, over the last few decades, been unmoved by the prospect of a slippery slope regarding peremptories, because these Justices think that the Court should reconsider whether any peremptory challenges can be constitutionally exercised.

But for those who are not yet ready to dispense with all peremptories, toeholds on the slippery slope are needed. One such toehold is hinted at in the analysis above-at the very least, the groups that receive textual protection in the Constitution from discrimination in voting (groups defined by race, gender, wealth and age in the voting rights amendments) should also be protected from discrimination in jury service. So far, the Supreme Court has embraced protection for the first three kinds of groups. Prospective jurors identified by race or gender are protected under explicit equal protection holdings, and jurors identified to some extent by economic class or status have been protected more ambiguously pursuant to the Court's general supervisory powers over the federal courts, The Court has not yet ruled on whether the fourth group, defined by age, should receive comparable protection.

On this analysis, peremptories that are used to exclude gay or lesbian persons wouldn't seem to implicate the voting rights amendments (unless we shoehorned sexual orientation discrimination into sex discrimination-an analysis with persuasive force in some circumstances, but not others.) But the political-rights paradigm (as distinguished from the equal protection framework) does help to explain why one group that is protected by equal protection doctrine from state-level discrimination-aliens-have no right to avoid exclusion from juries. Indeed, through most of modern American history, non-citizens have been ineligible to serve on juries (just as they have been ineligible to vote.) California has recently considered legislation that would allow non-citizens to serve on juries (and there would be no constitutional problem with such experimentation), but it is unlikely that courts will protect their access.

From this perspective, Judge Reinhardt's reasoning correctly recognizes that while the application of heightened scrutiny under the Equal Protection Clause to laws disadvantaging a particular class is certainly relevant to the review of peremptory challenges directed at class members, it cannot be a sufficient ground for holding that these challenges are unconstitutional. The alienage cases demonstrate that a class protected by heightened scrutiny review may still be excluded from jury service. Ultimately, it is necessary to return to our earlier points about what it is, exactly, that seems so problematic about certain kinds of peremptory challenges. Peremtory challenges directed at LGBT persons are problematic because they run a particularly high risk of eliminating a distinct set of voices from juries writ large. That is the kind of harm that requires a constitutional remedy.

Will the Supreme Court Review Abbott?

It is possible that the Ninth Circuit as a whole, en banc, will decide to review the three-judge panel's decision in Abbott. What about the Supreme Court? Shortly after Abbott came down, the thoughtful New York Times legal analyst Adam Liptak suggested there might be a split between Abbott and a case from the United States Court of Appeals for the Eighth Circuit, which opined that sexual orientation is not an invalid basis for peremptories, and that such a split may be of interest to the Supreme Court. We think the Court is unlikely to exercise its discretion to review Abbott for several reasons. For starters, there really is no split with the Eighth Circuit. The language in the Eighth Circuit case suggesting that sexual orientation is a permissible basis for peremptories was dicta, since the court in that case found that the lawyer did not base the peremptory in question on sexual orientation in the first place. Moreover, the Eighth Circuit case predates Windsor, so there is no split on the precise question Judge Reinhardt's opinion answered-whether Windsor fundamentally changed the constitutional standard of review regarding discrimination against gays and lesbians. . The Eighth Circuit hasn't weighed in on that question yet, so we don't know if the two circuits really disagree.

But even if another Circuit were to disagree with Abbott in the near future, we still would not expect the Supreme Court to grant review. The Court decided Windsor inscrutably (and dodged the merits altogether in Hollingsworth v. Perry, the California Proposition 8 case) because the Court wasn't ready yet to resolve the basic same-sex marriage question, let alone whether all sexual-orientation discrimination is problematic. Taking review in Abbott would require the Court to resolve the very kinds of questions it has been trying to avoid. Last year, the Justices, as a group, seemed to want to buy some time to allow political deliberation to move forward on gay rights issues, and one year is simply not long enough for that to happen. Even though things have changed a great deal of late (with many more states embracing same-sex marriage), the times are still changing. Until the landscape begins to settle down, we would not expect the Court to reenter the picture if it can avoid doing so.

December 11, 2013

Argument recap: Another immigration case? Another argument about statutory interpretation and agency deference

Cross-posted from SCOTUSblog.

Yesterday, the Court heard oral arguments in Mayorkas v. Cuellar de Osorio, a case raising a technical issue of statutory construction of the complex U.S. immigration laws.

The specific question presented by the case is whether a provision of the Immigration & Nationality Act, as amended by the Child Status Protection Act (2002), allows children of all family immigrant visa applicants (or only for some family immigrant visas) who turn twenty-one ("age out") while waiting for a visa, to be issued a visa with their parent when the visas are issued.  8 U.S.C. § 1153(h)(3) provides that, for an "aged out" child, "the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition."  The Board of Immigration Appeals has interpreted the statute to cover only certain, rather than all, family immigrant visas.

Assistant to the Solicitor General Elaine Goldenberg argued the case for the United States.  Mark Fleming of WilmerHale argued the case on behalf of the respondents,

Much of the Justices' questioning of both advocates focused on the precise meaning of the statutory language, especially the phrase "automatically . . . converted."  There also was some back and forth about the propriety of deference to the relevant Board of Immigration Appeals ruling, Matter of Wang (2009).

Taking the podium first, Goldenberg was quickly interrupted with a question from Justice Ginsburg about the harsh impact on the "aged out" child under the government's interpretation.  Justice Alito also seemed to have similar concerns.  Later in the argument, Goldenberg admitted that "Congress's overarching concern" was with "administrative delays" but failed to fully articulate how the respondents' broader interpretation failed to fulfill that purpose better than the government's rather wooden one.

Testing the government's claim that the respondents' interpretation would substantially disrupt the statutory visa scheme, Justice Breyer pressed for an estimate of the number of aged out children who may benefit from that interpretation.  Goldenberg ultimately was forced to admit that the government "can't quantify exactly how many [people], but we have reason to think that the number is quite large."  As a last resort, Goldenberg stated that the Court had recognized that "deference is particularly appropriate in immigration contexts."

Fleming began his argument by dismissing the government's claim that the statute is ambiguous.  He further emphasized that the Court should exercise "a modicum of common sense" in deciding whether Congress would have delegated the question before the Court to the agency.

To better understand the operation of the statute, Justice (and former law professor) Breyer offered a hypothetical using his name (but Steven with a "v"), his brother's (Charles), and his nephew.  This moment added a bit of levity to the proceedings.

In questioning Fleming, Justice Kagan suggested that the statute was ambiguous and that deference to a reasonable interpretation of the government might be justified.  Fleming argued that, in that circumstance, the government's position was not rational.

The government's rebuttal returned to the same ground generally covered in the arguments.  Interestingly, Chief Justice John Roberts, who intervened little in the argument, during rebuttal appeared to be dubious of the government's interpretation of the statute.

As the oral arguments in the Affordable Care Act case made clear, it is at best hazardous to predict how the Supreme Court will rule from oral arguments alone.  While the government seems to be facing an uphill battle in this case, one never knows for sure.  Nonetheless, it does seem clear that the Court, in deciding the case, will apply traditional tools of statutory construction and agency deference.  This would be entirely consistent with the rather unexceptional nature of the Court's immigration jurisprudence in recent years.

December 6, 2013

Argument preview: Deference to agency interpretations of the immigration laws

Cross-posted from SCOTUSblog.

While the Supreme Court historically has afforded considerable deference to the immigration bureaucracy in the interpretation and application of the U.S. immigration laws, it has not blindly deferred to the executive branch.  In Judulang v. Holder (2011),  for example, the Court unanimously rejected the conclusion of the Board of Immigration Appeals (BIA) that a lawful permanent resident was statutorily ineligible for relief from removal, finding that it "flunked" minimal judicial review.  Next week, in Mayorkas v. Cuellar de Osorio, the Court will return to the question of the appropriate deference to be afforded the BIA's interpretation of the immigration laws.

The case

Limits on the number of visas that can be issued each year means that many non-citizens must wait years in their home countries after applying for a visa before one is in fact issued.  Natives of El Salvador, Rosalina Cuellar de Osorio and her family applied and waited seven years for visas that would allow them to join Rosalina's mother - a U.S. citizen - in the United States.  Notified that they were next in line, the family also learned that the applicant's son, who had turned twenty-one while the application was pending and thus was no longer a "child" as defined by the immigration laws, would not be issued a visa.  That result was consistent with the BIA's interpretation of the statute.

As amended by the Child Status Protection Act, the Immigration and Nationality Act has rules for determining whether children who "age out" can obtain immigrant visas as derivative beneficiaries of eligible family members.  The question before the Court in this case is whether the statutory provisions allowing the issuance of visas to "aged out" children apply to all family immigrant visa categories or, as the BIA ruled, only some of them.

The Court of Appeals

Sitting en banc, the U.S. Court of Appeals of the Ninth Circuit, in an opinion by Judge Mary Murgia that was joined by five judges, concluded that the BIA's interpretation conflicts with the plain language of the statute and was not entitled to deference.  Judge Milan D. Smith, Jr., with Chief Judge Kozinski and three other judges, disagreed.  They reasoned that, because the statute "is ambiguous . . . and . . . the BIA's conclusion . . . is reasonable," it is entitled to deference.  Like the judges on the en banc court, the circuits were split on the question.  The Supreme Court granted certiorari, briefing is complete, and oral argument is set for December 10.

The arguments

The United States contends that, because the statute is ambiguous and the BIA's interpretation is reasonable, that interpretation is entitled to deference under Chevron U.S.A, Inc. v. Natural Resources Defense Council, Inc. (1984). The government further argues that the Ninth Circuit's interpretation would substantially disrupt the immigrant visa system by allowing certain "aged out" children to secure visas that, due to annual numerical limits, would delay the issuance of visas to other visa applicants.

Agreeing with the Ninth Circuit, the families contend that the statute unambiguously allows all "aged out" beneficiaries for family visas to secure visas when the primary applicant does, so that the BIA's interpretation is unreasonable and undeserving of deference.  A bipartisan group of current and former senators who voted for the Child Status Protection Act, including Orrin Hatch (R-Utah), John McCain (R-Arizona), and Charles Schumer (D-NY), filed an amicus brief in support of the families.

After more than a decade after the law was passed and after the families' brief was filed, the federal government issued "policy guidance" on the implementation of the exact statutory provision before the Court. The federal government's reply brief urged the Court to defer to the positions taken in the November 2013 policy guidance, which not coincidentally are consistent with its advocacy position adopted by the government in the Court.

Possible impact of a decision and a prediction

If the Court accepts the government's interpretation of the immigration laws, certain non-citizen children who wait for a visa will face the following scenario:  the longer they wait, the more likely it is that they will be kicked out of line through the mere passage of time and "age out" of the process, resulting in the division of families and undermining the immigration laws' fundamental goal of family reunification.  The U.S. government's wooden interpretation of the statute sounds strikingly similar to the government's interpretation of the immigration laws that the Supreme Court unanimously rejected in Judulang.

August 7, 2013

Scholarship in the Courts

Professor Jack Chin is conducting a series of interviews with scholars whose works have been cited by the U.S. Supreme Court. Professor Chin shares that in common with his interview subjects; one of his articles was cited in both the majority and dissenting opinions issued by the U.S. Supreme Court in Chaidez v. United States on February 20.

You can read the interviews at PrawfsBlog.


July 17, 2013

Why the Proponents of California’s Same-Sex Marriage Ban Are Unlikely to Succeed in Getting the California Supreme Court to Enforce Proposition 8

Part One in a Two-Part Series on What Should Happen to Same-Sex Marriage in California after Hollingsworth v. Perry. Cross-posted from Justia's Verdict.

Last month's ruling by the U.S. Supreme Court that the proponents of California's voter-enacted ban on same-sex marriage, Proposition 8, lacked standing to represent the voters of the State even when the Attorney General and Governor declined to defend, combined with the decision by the U.S. Court of Appeals for the Ninth Circuit to lift the stay on trial judge Vaughn Walker's order blocking enforcement of the ban, effectively killed Proposition 8. But like a chicken with its head cut off, Proposition 8 is trying to act alive, even though it has no real chance of being revived. In the space below, Part One of a Two-Part series on the future of same-sex marriage in California, I analyze the latest developments in the struggle, especially the petition filed last week by the initiative's proponents in the California Supreme Court asking it to stop the issuance of same-sex marriage licenses. In Part Two of the series, scheduled to run August 2, 2013, I will sketch out what I think Californians should do to properly and finally lay Proposition 8 fully to rest.

A Quick Recap of the Action So Far

Let us begin by reviewing key aspects of the story to date: California voters passed Proposition 8 in 2008. In 2009, two same-sex couples (one from LA County and one from Alameda County) brought suit in federal court in San Francisco against, among others, the County Clerks in their respective counties, the Governor, the Attorney General and the State Registrar, alleging that Proposition 8 violated the federal Constitution. None of the named defendants defended on the merits-the Governor and Attorney General actually expressed agreement with the challengers-and federal trial court Judge Walker allowed the proponents (i.e., the measure's drafters/signature gatherers) to intervene to defend Proposition 8. In 2010, Judge Walker found that Proposition 8 violated the 14th Amendment to the U.S. Constitution, and issued an order preventing all defendants, and any persons under their "control or supervision," from "applying or enforcing" Proposition 8. The proponents appealed to the Ninth Circuit, which promptly put a stay (hold) on Judge Walker's order, and then later (in 2012) affirmed Walker's ruling that Proposition 8 violates the federal Constitution (but left the stay intact pending possible Supreme Court review.)

Last month, the Supreme Court ruled that the proponents never had "standing" in federal court to represent the voters, and thus that they had no business appealing Judge Walker's ruling to either the Ninth Circuit or the Supreme Court. Accordingly, the Supreme Court vacated (erased) the Ninth Circuit's constitutional ruling, but the high Court left intact Judge Walker's decision (since the two same-sex couples clearly had to have the ability to challenge Proposition 8 in the trial court.) After this, the Ninth Circuit quickly lifted its stay on Judge Walker's order, and Governor Jerry Brown and Attorney General Kamala Harris instructed all county clerks to ignore Proposition 8 and issue same-sex marriage licenses. According to numerous press accounts, Clerks throughout the state have been doing exactly that since early July.

Last Week's Request by the Proponents to the California Supreme Court

On July 11, the proponents asked the California Supreme Court to order all County Clerks to stop issuing same-sex marriage licenses. Their papers argue that Judge Walker's ruling-now being implemented-cannot legally apply, and does not apply, to anyone other than the two same-sex couples who filed suit. And since these two couples already have their licenses (they were among the first to be married after the Ninth Circuit lifted the stay), Judge Walker's order has done all that it was intended to do, and all it permissibly could do. The proponents argue that since Judge Walker's order is no longer relevant to any of the defendants or to any other same-sex California couples who wish to marry, County Clerks who continue to issue same-sex marriage licenses are violating Proposition 8, and are also violating state law principles that prevents any executive agency from failing to enforce a state law on the ground that it is unconstitutional unless any court is ordering the agency to do so, or unless an appellate court somewhere has invalidated the state law. Because the Ninth Circuit ruling striking down Proposition 8 was erased, the latter exception does not apply. And, again, because (the proponents say) Judge Walker's order is now completely satisfied, the former exception does not apply either.

To summarize, the proponents' request is based on three key assertions: (1) Judge Walker's order should not, as a matter of federal remedies law, have any effect beyond two couples who sued; (2) Judge Walker's order does not apply to any defendant any longer; (3) if Judge Walker's order is understood as being limited in this way, Clerks who ignore Proposition 8 are violating state law.

The Big Reason Proponents Are Unlikely to Succeed: Their Petition Rests on Contested Issues of Federal, Rather than State, Law

I do not think the California Supreme Court is likely to accept the proponents' invitation to stop same-sex marriage licenses from being issued. On Monday of this week, the court indicated it would not stop the marriages right away, but the full briefing schedule indicates that the court will not make a final decision on the proponents' petition until August at the earliest. It is telling, though, that the court did not enter an order directing Clerks to stop issuing same-sex marriage licenses right now; if the court thought there was ultimately any significant chance it would grant the relief the proponents seek (ordering the enforcement of Proposition 8), the California Justices probably would have granted an immediate injunction, to reduce the number of same-sex marriages whose validity the court might have to deal with after all is said and done.

Why would the California Supreme Court be inclined to stay out of this matter? For starters, the California Supreme Court's review here is discretionary, not mandatory, and I expect the Justices will look for plausible, prudential reasons to stay out of, rather than excuses to jump into, a situation in which the Proposition 8 likely no longer reflects the desires of the California electorate. (A recent LA Times poll suggested same-sex marriage rights are favored by California registered voters by a margin of around 56-38.) To be sure, the Proposition 8 proponents are arguing that more is at stake here than simply same-sex marriage; the proponents claim that state officials are flouting the rule of law by refusing to comply with Proposition 8 until an appellate court has invalidated it on the merits. But the proponents' claim that the California Supreme Court can and should address this alleged lawlessness by state officials is open to some serious complexity and significant doubt.

The sponsors may be right (and I have written about this before) in saying that Judge Walker should not, as a matter of federal remedies law, have issued an order that granted relief beyond the two couples who actually sued. That is to say, the proponents may be right about the first of the three assertions I listed above. As I explained in an earlier column:

Under [a very plausible reading of the relevant cases,] the law of the Ninth Circuit (and perhaps also that of the Supreme Court) [suggests that] a district judge has no power, outside of a class action setting, to order relief that goes beyond protecting the named plaintiffs to also protect other would-be plaintiffs, unless full relief cannot be given to the named plaintiffs without also necessarily regulating the defendants' interactions with other persons. In the present setting, full relief (i.e., marriage licenses) can be given to the named plaintiffs [, the two couples who sued,] without ordering the defendants to give licenses to anyone else.

But even if the proponents are correct about this first point under federal remedies law (and some may argue that the Ninth Circuit cases don't mean what I think they do), the bigger problem for the proponents is their second assertion-that Judge Walker's order in fact does not go beyond the named plaintiffs. For whether he was right or wrong to do so, Judge Walker wrote and entered an order that-read most straightforwardly-does go beyond those two couples, to grant same-sex marriage rights to other couples in the State as well. This is most clear when it comes to the Clerks of Los Angeles and Alameda counties; Judge Walker's order directs them, in broad terms, not to enforce Proposition 8. Period. Whether Judge Walker should have added a phrase "as to the named plaintiffs," to this part of order, he did not. The most natural reading of the order is that these two defendant Clerks, as least, are simply not supposed to enforce Proposition 8.

The proponents' best argument (although they don't quite frame it this way), is that because it would be likely unlawful under federal law for Judge Walker to have granted relief to persons who weren't plaintiffs, we should in effect add the words "as to the named plaintiffs" to his directive to the LA and Alameda Clerks. In other words, because Judge Walker nowhere explicitly said his order should apply to non-plaintiffs, and because he doesn't have the power to provide a remedy to non-plaintiffs, we should read his order as if he agreed with the proponents that his order is in fact limited.

But I think it would be difficult, and perhaps violative of federalism principles, for the California Supreme Court to effectively add limiting words to Judge Walker's order. Ordinarily, interpreting or changing the scope of a federal court order is a matter for federal courts-not state courts-to undertake. And because the proponents' argument about the permissible power of a federal court to protect non-plaintiffs is itself a point of some contention under federal law, I don't think the California Supreme Court can easily agree with the proponents in resolving this federal question; questions about the scope of federal district court powers are not the kind the California Supreme Court exists to decide.

A federal court would be the more natural place, in the first instance, to argue that Judge Walker's order, as written, exceeds federal trial court powers and, for that reason, should be construed as narrowly as possible. After such guidance from the federal courts, the proponents could then make their state law claims in the California Supreme Court. But the proponents don't have standing in federal court to raise such an argument-that is what the U.S. Supreme Court held in Hollingsworth. The proponents filed last week's request in the State Supreme Court in part because California courts don't have the same rigid standing requirements, but that doesn't mean that the state court is going to be interested in resolving these thorny questions of what the federal court order could, and does, mean. (And notice that the Ninth Circuit could have narrowed Judge Walker's order to the named plaintiffs only before lifting the stay, but apparently chose to leave Judge Walker's edict completely intact.)

The Questions of State Law Raised by the Proponents' Request

It is true that, as to the other 56 County Clerks-who were not named in the federal lawsuit in Judge Walker's court-there is a question whether these Clerks are under the "control or supervision" of one of the defendants who is directly subject to Judge Walker's order, most plausibly the Governor or the State Registrar. And the question of whether County Clerks are under the control or supervision of the Governor or the State Registrar might very well be a question of state law as to which the California Supreme Court may someday want to provide a definitive answer. In a similar vein, the California Supreme Court may someday also want to answer the question whether a County Clerk who is not subject to a court order or to the control of the Governor or Registrar can refuse to enforce a state law on the ground that it is unconstitutional. (This is matter addressed by the third contention I identified in the proponents' papers.) But the California Supreme Court might feel that what is meant by "control or supervision," as the term is used in Judge Walker's order, is not determined by state law, but rather by what Judge Walker intended, in which case we are back to the problem of a state court trying to interpret and perhaps limit the effect of a federal court order.

Moreover, and more important, even if the 56 non-named County Clerks are not covered by Judge Walker's order (and thus should not, under the proponents' contested reading of state law, be ignoring Proposition 8), same-sex couples can go to LA or Alameda counties for marriage licenses (since, as discussed above, these two clerks at least would seem clearly to be covered by Walker's order.) And the California Supreme Court may rightly say to itself: "If Proposition 8 is going to die anyway-because the LA and Alameda County Clerks are required to issue same-sex marriage licenses-then there is no practical import of resolving big questions of state law, concerning the independence of County Clerks and the requirement to follow a state law until the law has been invalidated by an appellate court, in this setting. Better, perhaps, to wait for a case that is less politically charged, and one in which the resolution of these state law questions will affect the real-world state of affairs more."

Thus, although the California Supreme Court has asked the Attorney General to file full briefs explaining why the court should reject the proponents' requests for relief, and although the court will consider the matter carefully and likely not act in a final way on the proponents' petition until next month at the earliest, I don't expect the proponents to make any real headway. The federalism issues presented by a state court trying to read a federal court order in a particular way in order to justify reaching state law issues are, I think, too daunting. And on that basis the California Supremes will probably let things continue to run the course they are on-with same-sex marriage licenses continuing to be issued.

In Part Two of this series, I will explain why, even if the California Supreme Court stays out, and even if same-sex marriages continue in California indefinitely, there is virtue in the voters of the State formally repealing the no-longer-favored measure. And I will analyze how that could come about without great cost or delay.

July 5, 2013

What the Supreme Court Should Have Said in the Proposition 8 Case, and How an Important Tweak Would Have Avoided Unnecessary Damage to the Initiative Device

Cross posted from Justia's Verdict.

It was completely understandable, justifiable and even predictable that the Supreme Court would dispose of the challenge to California's voter-enacted ban on same-sex marriage, Proposition 8, by saying that the sponsors/proponents of the measure lacked legal "standing" to defend it in federal court, even when the State Governor and Attorney General failed to defend.  Given the rapidly changing legal landscape, any principled legal way to bypass until another day the big question of whether there is a national right to same-sex marriage was worth exploring, as I have argued, on this website and elsewhere, since 2010.

But while the standing route is attractive, it is also potentially hazardous.  In particular, the Court needed to steer clear of damaging the initiative device in general even as it denied standing to Proposition 8's sponsors in particular.  Although some folks disparage the initiative device, it is used in about 20 states that together contain almost 150 million Americans.   Unfortunately, Chief Justice Roberts's 5-4 majority opinion did not navigate this terrain particularly cautiously, and the integrity of direct democracy might end up being the victim.

The best argument (and it was made by Justice Kennedy's dissent) in favor of sponsor standing is that elected officials should not be able to effectively defeat initiatives by simply not defending the measures against federal court challenge. This is especially problematic because the initiative device is derived from a concern that elected officials sometimes do not act in ways that are faithful to the people's interests and desires. And while most initiatives are responses to inaction (or unpopular action) by the legislative branch, there is no reason to think that the distrust of elected officials represented by the initiative mechanism does not also carry over to officials like Governors and Attorneys General.

Yet granting sponsors the ability to represent the State raises its own problems.  In short, initiative proponents who are not picked by the voters may lack credibility, and may in fact be rogue actors whose current views, sentiments, and desires bear little relation to those of the electorate that adopted the initiative in question, much less the electorate that exists at the time litigation is conducted.

A majority of Justices felt they had to credit the latter arguments over the former, and so joined an opinion that could be read as suggesting that, no matter what a State's law says, under no circumstances can initiative sponsors ever step into the shoes of the State.  The problem, said the majority, was that initiative sponsors are not subject to control of the voters the way regular State officials are.  That may be true to some extent when sponsors are compared to some regular officials, but it not true categorically.  Moreover, the majority's reasoning, read broadly, could mean that nobody who isn't on the government payroll exercising full-time government power can ever defend initiatives in federal court.  And believers in the initiative often don't want to empower or create new bureaucracies.

The dissenters, by contrast, thought the first set of arguments should trump, and so would have empowered sponsors to defend all initiatives.  Yet the dissenters did not address the reality that some sponsors may be rogue.

But this framing of the issue ignores an appealing middle path: a state should be free to authorize sponsors to defend initiatives (in a way that federal courts will accept), but the authorization has to be done carefully and in a fashion that the voters can see. In crafting a workable balance between the competing concerns presented by initiative-sponsor standing, federal courts should recognize the possibility of sponsor standing, but only when the grant of power to sponsors to defend is clearly provided for in state law, so that the voters have adequate notice that when they adopt an initiative, they are in effect appointing certain persons to defend it in court.  It would be sensible for such explicit deputization to address, among other things: (1) precisely who within the proponent organization(s) is entitled to make key litigation decisions and concessions; (2) how long the sponsor's power to defend lasts; (3) the question of attorneys' fee liability to be satisfied by public fisc if the defense fails; and (4) what the relative authority of the initiative proponent and the Attorney General/Governor should be when public officials may decide to defend the measure, but to defend it in ways different from the litigation strategy favored by the sponsors.

In other words, the key is not whether sponsors are controlled by voters or other state authorities; it is whether the sponsors were ever selected and given a discrete power by the voters in the first place.  (That is the correct way to distinguish an initiative sponsor from an Attorney General.)

Proposition 8's sponsors would have failed this test, because nothing in California law in 2008 (when the measure was passed) told voters that by adopting the measure they were also picking the sponsors as their agents.  But, going forward, fans of the initiative device in California and elsewhere should be able to specifically deputize sponsors as backup representatives of the State by saying so in the text of specific initiatives (or through some similar device that puts voters on notice that adoption of the initiative creates agency in the sponsors), and thus should have the means to prevent elected officials from frustrating direct democracy simply by failing to defend measures that are challenged in federal court.  That this path wasn't staked out by Chief Justice Roberts's opinion is regrettable.

If the Justices in the same-sex marriage cases this year did, as a group, want to embrace a middle-of-the road outcome, they could and should have been more careful to avoid making the initiative device road kill.

June 26, 2013

In the Media: Faculty Members on Prop. 8 and DOMA (Updated)

Photo: Reuters

The national, regional, and local media are turning to UC Davis law faculty for expert analysis and commentary on today's U.S. Supreme Court decisions on the Proposition 8 and Defense of Marriage Act (DOMA) same-sex marriage cases.

Here is a sampling of media citations. This list will be updated as more stories hit the web.


Dean Kevin R. Johnson

Southern California Public Radio

DOMA ruling a victory for bi-national couples, but legal questions remain


Associate Dean and Professor of Law Vikram Amar


Supreme Court Strikes Down DOMA; Paves Way for California Gay Marriage (with video)


Justia’s Verdict

Analysis: If the Supreme Court Decides the Proposition 8 Sponsors Lack Standing, What Will Happen to Same-Sex Marriage in California? This April 26 essay is being cited by numerous news agencies and blogs today.


KQED Forum

Prop 8 Ruling Paves Way for Same-Sex Marriage in Calif.; DOMA Ruling Gives Gay Couples Federal Benefits (with audio)


The Sacramento Bee

Jerry Brown tells California counties to issue gay marriage licenses


The Los Angeles Times -- Update added June 27

Same Sex Weddings to Resume in California Soon, Officials Say,0,3679293.story


Capital Public Radio’s “Insight” -- Update added June 27

Prop. 8 and DOMA Follow-Up (with audio)


San Jose Mercury News -- Update added June 27

Proposition 8 Appears Doomed in California after Supreme Court Ruling


KTXL Fox40 News -- Update added June 27

Making Sense of What's Next after Ruling on Prop. 8 (with video)


The Guardian UK -- Update added June 27

U.S. Moves to End DOMA Discrimination after Gay Rights Breakthrough


The New York Times -- Update added June 28

Roberts Pulls the Supreme Court to the Right Step by Step


The Los Angeles Times -- Update added June 28

Prop. 8 Ruling Raises Fears about Effects on Other Initiatives,0,3117108.story


Professor of Law Courtney G. Joslin

Bloomberg News and Bloomberg Businessweek

Supreme Court Ruling Narrows Gay Couples’ Benefit Gap


Capital Public Radio’s “Insight”

SCOTUS Rulings on DOMA & Prop. 8 (with audio)


Equality Radio

Live Coverage: SCOTUS decisions on Prop 8 and DOMA (with audio)


KTXL Fox40 Morning News

Reaction to the Prop 8 Ruling (with video)


Orange County Register -- Update added June 27

Why DOMA Went Down

Orange County Register DOMA Reactions.pdf (622.87 kb)


St. Louis Post Dispatch -- Update added June 27

Many Applaud Gay Marriage Rulings, thought Direct Effect in Missouri and Illinois Will Be Limited

June 25, 2013

Affirmative Action: The Door's Still Open

On Monday, the Supreme Court opted against a definitive ruling on the constitutionality of the University of Texas' race-based college admissions program and instead sent the case back to the U.S. 5th Circuit Court of Appeals for a closer look at the university's policy. Many will view the decision as a punt. But as football fans know, punts are often important plays in a game. And proponents of race-based affirmative action have every reason to see this play as working in their favor.

Affirmative action has tended to divide the court in consistent ways. Justices Antonin Scalia and Clarence Thomas (and, based on more general things they have said, likely also Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., though these two did not tip their hands Monday) think that race consciousness is not a constitutionally permissible way to assemble a minimally diverse student body.

Other justices, especially Ruth Bader Ginsburg but also probably Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, think universities should be allowed significant latitude to consider race to promote diversity, provided the schools are acting in ways that assist underrepresented racial minorities.

Justice Anthony M. Kennedy, who wrote Monday's ruling and whose views have held sway in recent affirmative action cases, has staked out an in-between space defined by a fundamental distrust of — but not an outright prohibition on — schools' use of race.

So why should universities feel comfortable about being confined to Kennedy's middle-ground territory? Because Kennedy could have moved into the ranks of the more conservative justices and adopted a rigid prohibition, but chose not to.

Writing for the majority, Kennedy expressed his long-standing view that "strict scrutiny" must be applied to any university's use of race. (Indeed, he chided the 5th Circuit precisely because it deferred to the university's judgment and failed to undertake an independent inquiry into whether the school had adequate justification for using race.)

And he added that a reviewing court "must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity." By this, Kennedy was referring to the University of Texas' race-neutral Top 10 Percentage Plan (wherein the top 10% of each Texas high school is guaranteed admission regardless of standardized test scores or other metrics) that was already generating some diversity at the university. But, importantly, he did not require (or even come close to requiring) that all colleges try such percentage plans before adopting race-based programs.

Although Kennedy's "almost never" approach might seem analytically similar to the "colorblind" approach of more conservative justices, what counts most in the real world of affirmative action is the court's bottom-line answer to the question of whether the use of race is categorically forbidden. In this setting, a door for affirmative action that is slightly ajar is closer to being wide open than it is to being slammed shut; if the door is cracked at all, universities can maintain race-based programs. As the line from "The Princess Bride" goes, "There's a big difference between mostly dead and all dead."

Kennedy's stance has been that, although race consciousness is very hard to justify, it is not completely improper, and nothing in Monday's decision departs from that position. What this means practically is that most universities are still not prohibited from considering race as part of their admissions criteria. There is an exception, of course, in states that have passed laws prohibiting race as a criterion, such as California's Proposition 209.

In most states (and at private schools) though, we're likely to see universities continue to do what they've been doing. They will simply be careful to justify doing so in the precise terms Kennedy seems to want.

Of course, whether schools are truly complying with the letter or even the spirit of Kennedy's vision is another matter. Any justice saying "rarely but not never" faces the difficulty of crafting language that articulates precisely what is allowed and what is forbidden.

Kennedy tries by saying race consciousness must be "necessary" and "narrowly tailored" to the goal of diversity, but these words are inevitably susceptible to broader and narrower interpretations, especially because Kennedy makes clear that the proper understanding of these terms depends on context. Indeed, the fuzziness of this language enabled a wide range of justices (including Alito, Breyer and Sotomayor) to join Kennedy's opinion, even if they don't all agree on precisely what the standard means in every application.

As a result, universities — even those acting in good faith — can't know precisely where the line is, and thus can operate somewhat aggressively, adopting a reading of Kennedy's yardstick that, while debatable, permits them to continue to consider race in admissions decisions. And any challengers will have to take on the specific policy of each school, one at a time. This will remain true even if the 5th Circuit, on remand, strikes down the University of Texas' plan.

For good or ill, there is often a gap between what the law requires in the abstract and what the law means on the ground. And this gap may be wider the less absolute the governing legal principle is. That is one reason why some judicial umpires, most notably Scalia, prefer bright-line rules to case-by-case tests.

Cross-posted from The Los Angeles Times.