February 16, 2012

The Right Way to Accommodate Religious Objections to the Contraception Coverage Mandate

By Vikram David Amar and Alan E. Brownstein

[Cross-posted from]

In this column, we provide an analytic framework for analyzing the recent firestorm involving regulations from the Department of Health and Human Services (HHS) concerning the extent to which employees of religious organizations must be provided with insurance coverage for contraceptive services as part of the insurance they obtain through their employment.

The Relevant Background

As anyone who has kept up on current events the last few weeks knows, proposed HHS regulations that were announced in January, and that are designed to implement parts of the Affordable Care Act (ACA) required employers to include contraception services in the health insurance plans they offered their employees.  The primary objection to the regulations involved their application to religious organizations that are opposed to the use and provision of contraceptive services as a matter of faith and doctrine. The regulations did contain an exemption for some religious employers, but it was extremely narrow in its scope and would not apply to religious hospitals, universities, and charities.

Last Friday, in response to the regulations' critics, President Obama offered a compromise solution. Under his new proposal, religiously affiliated employers will not be obligated to provide contraceptive coverage to their employees; instead, their health insurance companies will be required to provide the coverage directly to women at no charge.  The cost of providing insurance coverage for contraceptive services would thus be shifted from faith-based institutions that object to the mandate on religious grounds, to health insurance companies serving the populations at issue.  Proponents of the compromise argue that because the provision of contraceptive services often reduces other policy costs incurred by health care insurers, the cost of the shift to insurance companies would be minimal.

President Obama's proposed compromise was satisfactory to some interest groups, but other ideological voices, including both liberal and conservative politicians, criticized the plan, albeit from opposite perspectives.  The New York Times editorialized that "it was dismaying to see the president lend any credence to the misbegotten notion that providing access to contraceptives violated the freedom of any religious institution." The U.S. Conference of Catholic Bishops, on the other hand, claimed that the proposal "continues to involve needless government intrusion in the internal governance of religious institutions, and to threaten government coercion of religious people and groups to violate their most deeply held convictions."

The Right Framework:  Focusing on Religious Liberty, Accomplishing Legitimate Government Objectives and Reducing Secular Windfalls

Any thorough analysis of this dispute is complicated by the intricacies of the ACA, the operation of health care insurers, and the rapidly evolving political reactions.  In this column, however, we want to step back and examine the core questions that are presented when government compels religious institutions to provide health care insurance coverage for contraceptive services that the institutions view as antithetical to their beliefs, and locate this conflict within a broader context.

To begin with, we believe there is a serious religious liberty interest at stake in disputes like these. Religious institutions have an understandable desire, one worthy of respect, to use their own resources (public funds and facilities present a separate question) to advance and promulgate their faith-and not to support activities that violate their religious beliefs.  Indeed, there is arguably something particularly intrusive and unsettling about the government's forcing religious institutions to take action to use their own resources in a way that undermines their beliefs.

This affirmative commandeering of religious organizations to further the state's purposes is, for some people, even more intrusive and burdensome than a law that ties religious institutions' hands by forbidding them from engaging in conduct that their faith obliges them to perform.

The burden on religious liberty is thus a critical element in evaluating the unfolding HHS regulations, but it is not the only concern that needs to be taken into account. The public interest underlying the contraceptive access aspects of the ACA must be considered as well. We do not doubt the importance of contraceptive access to the public health of our society, nor do we doubt the value of the mandated insurance coverage to individual women. If religiously affiliated organizations such as hospitals, universities, and charities are exempt from the regulations' requirements, a large class of women might be denied health benefits that other women receive, and that the state and the medical community strongly believe should be available to them. That is no small cost.

Finally, there is one other factor to consider. Some, though not all, religious exemptions provide benefits of secular material value to exempted institutions, in addition to protecting the institutions' religious liberty. Typically, these secular benefits are a consequence of relieving religious individuals and institutions of duties and obligations that other similarly situated persons or organizations must obey.

Some easy examples may help to clarify this point. Religious pacifists who are exempt from military conscription as conscientious objectors are relieved of having to violate their religious commitments, but they are also relieved of a physically dangerous duty that other individuals must fulfill. When an employee's observance of the Sabbath is accommodated by his employer, the employee also gets to spend prized weekend time off with his family, while his co-workers may have to work more weekends to substitute for his absence.  When religious institutions are exempt from regulations that require the expenditure of funds-for example, regulations requiring that facilities must be accessible to the disabled-the exempted institutions save money that can be used for other purposes. Thus, persons can certainly support exemptions for religious individuals and institutions in the name of religious liberty while questioning the fairness of allowing the beneficiaries of these accommodations to retain the accompanying secular benefits as well.

In sum, we suggest that religious accommodations in disputes like this one should try to accomplish three goals. First, they should protect religious liberty to the extent that it is feasible to do so. Second, they should mitigate or spread the costs of protecting religious liberty so that they do not fall disproportionately and heavily on any individual or group. Third, they should promote basic fairness and avoid the privileging of religion by limiting the secular benefits religious individuals and institutions obtain as a result of any exemption they receive.

Resolving the Exemption Issue with Win/Win Approaches

Let us now consider how this analysis might apply to the HHS regulations mandating contraceptive services, with which our column opened. To begin with, we would exempt religious organizations from any duty to comply with the mandate when the organizations are operating programs with their own funds. If a religious organization operates a government-funded program, however, the mandate should remain in force.

The distinction we make here, between privately and publicly funded programs, is grounded in our basic unease about government's commandeering the resources of religious institutions to serve its own goals. Religious organizations have a religious liberty right to challenge government regulations that require them to use their own resources in violation of their religious commitments in order to further the state's secular objectives. Religious organizations do not, however, have a religious liberty right to use the government's resources in order to further the organizations' religious commitments when  doing so would undermines the state's public policy goals.

Religious Liberty as a Public Political Good; The Duty of the Government to Spread the Cost of Religious Exemptions

Next, we think the government should take appropriate steps to spread the cost of the religious accommodation to the general public, rather than having it fall much more heavily on the members of a smaller class.  The most obvious and natural way to accomplish this goal would be for the federal government to use its own resources to provide health insurance coverage for contraceptive services for those women who are unable to receive the benefits of the HHS mandate because they happen to be employed by institutions who invoke the religious exemption discussed above.

It may be that President Obama's proposal to shift the cost of contraceptive services to health care insurers also achieves this cost-spreading goal to some extent, although we do note that it does so by imposing on the healthcare providers directly, and in a way that seems historically unusual.  (We are not aware of many examples in which the government directs a commercial enterprise to offer a service for free.)

So while we must think more about the compromise that President Obama offered before deciding whether it is acceptable, our key point here is that the government's obligations do not end when it exempts religious institutions from regulations that unacceptably interfere with or burden their religious liberty. The government also owes a duty to those people who suffer burdens or lose benefits as a consequence of the state's protecting religious liberty-and that duty requires the government to mitigate and spread these costs as much as possible.

The justification for spreading the cost of religious accommodations is straightforward. Fundamental rights such as religious liberty are public political goods that define the very nature of our community. We recognize, of course, that, in any given case, freedom of religion may be of much more value to certain individuals or groups than others. But the utility of these rights to particular individuals in specific situations should not lead us to ignore the intrinsic public value of living in a free society.

When the government incurs costs to acquire or protect public goods, it is appropriate for the community as a whole to share in the costs of its doing so-rather than leaving the cost to fall on a narrow class whose interests are sacrificed to the greater good.  (That is the reason why the Constitution prohibits "takings" for public use without "just compensation.")

The government expenditures and cost-spreading we propose to make rights meaningful are not unique to the public good of religious liberty-they often are present in the free speech context as well.  Governments spend substantial sums, for example, to provide adequate police forces to maintain order during large political demonstrations, or to protect small groups of unpopular speakers. In accepting these expenses as the price to be paid for living in a society committed to freedom of speech, we recognize implicitly that these costs may be allocated appropriately to the general, taxpaying public. We suggest that a similar analysis applies to religious liberty.

Adjusting the Equities By Requiring Alternative Service

Finally, we reach the third factor that is often overlooked in religious accommodation disputes. As a condition for receiving an exemption from the HHS contraceptive services mandate, religious organizations should agree to dedicate whatever funds they save from not having to provide the otherwise-required contraception coverage to some other public service, identified by the government, that is consistent with their beliefs. Remember, the justification behind the exemption for faith-based organizations is religious liberty. It does not extend to the cost savings that result from being freed from the burden of complying with legitimate regulations relating to public health goals, or any other permissible governmental objective.

Here again, our proposal is grounded on uncontroversial precedent.  Our society has long accepted the legitimacy of requiring conscientious objectors, exempt from military conscription, to perform some kind of alternative service that is consistent with the dictates of their faith. This obligation is not a penalty imposed on religious pacifists. It is an equitable rule that recognizes that, in the name of religious liberty, the conscientious objector has been relieved of a serious material burden that has been imposed on a broad class of individuals. Accordingly, it is fair and just to require him accept some other, comparable, civic obligation that does not require the violation of his religious beliefs.

We see no material difference between alternative service for those who are exempt from military service for religious reasons and alternative expenditures for public services by religious institutions that are exempt from costly regulatory mandates on religious liberty grounds.

We recognize that calculating and reallocating secular cost savings can be challenging and imprecise.  But such imprecision should not prevent us from doing the best we can under the circumstances. Alternative service for conscientious objectors does not, and cannot, replicate the risks and burdens of military service.  In these cases, perfect calibration in redirecting secular windfalls may be less important than achieving sufficient equities to demonstrate our recognition of the problem and our commitment to mitigating it.

The Benefits of a Principled Framework

The framework we describe in this article certainly won't resolve all disputes about religious accommodations that will arise now and in the future. Those debates are as old as our country. This framework does, however, lead us to think about these issues in a principled manner, rather than relying on compromises that depend primarily on the political power of competing adversaries.

Certainly, our proposed framework protects religious liberty far more than the original HHS regulations did, and it also provides health insurance coverage for far more women than would receive benefits if all religious organizations burdened by these regulations were simply exempted from the mandate. President Obama's compromise proposal seems, in some ways, to be a step in the right direction, although important questions as to how it will be implemented remain to be resolved.  The compromise resonates with two of the principles we advocate: (1) it reduces state interference with the ability of religious institutions to follow the dictates of their faith, and (2) it mitigates and spreads the costs of the accommodation so that they do not fall exclusively on women who are employed by exempt religious institutions.  Granted, its placement of the burden on insurance companies does raise issues of its own.  But it may not be a bad beginning, even if it isn't quite yet a complete solution to the problem.

February 16, 2012

Revisiting Standing: Proposition 8 in the Ninth Circuit

(Cross-posted from

JURIST Columnist Vikram Amar, writing the inaugural edition of a column authored by the faculty of the University of California, Davis School of Law, says that the Ninth Circuit could have ruled that the initiative proponents lacked standing to defend Proposition 8, which may have been a more judicially sound method to invalidate the amendment as opposed to basing the decision on Romer v. Evans...

Detractors likely see last week's ruling striking down California's ban on same-sex marriage, Proposition 8, as a result-oriented decision calculated to reinstate same-sex marriage in the Golden State and at the same time discourage Supreme Court review on account of the California-specific reasoning underlying the opinion.

It is worth noting that Judge Reinhardt, the opinion's author, would also have been accused of activism had he written a broader ruling that called into question other state bans on same-sex marriage as well. Still, Reinhardt's effort does suffer from significant logical and doctrinal problems. He attempted to wrap himself in the cloak of Romer v. Evans, the famous 1996 Supreme Court ruling in which Justice Kennedy wrote for the majority to invalidate a Colorado initiative that withdrew, across the board, protection from discrimination on the basis of sexual orientation for all persons of gay or bisexual orientation while leaving in place such anti-discrimination protection for people of heterosexual orientation. Reinhardt also relied on two features of Proposition 8 that he said doomed it under Romer and other cases. First, California repealed an existing right to same-sex marriage; California did not simply choose not to recognize one in the first place (as in other states). Second, California's repeal of the marriage label was irrationally narrow, insofar as it left intact all the tangible benefits of same-sex marriage for gay couples.

The big problem is that neither of these features of Proposition 8 brings the case within the scope of Romer. In Romer, nothing seemed to turn on the fact that the Colorado law in question, Amendment 2, had taken the form of a repeal. Imagine there were no anti-discrimination laws relating to sexual orientation in Colorado at all. Colorado then creates such laws in something it calls "Amendment 2(a)," but provides therein that "none of these newly created rights concerning sexual orientation discrimination shall be enjoyed by persons who are of gay orientation or lifestyle." I have no doubt the Court would have struck this down just as it did the law in Romer. In fact, Justice Kennedy in Romer actually used "withheld" instead of "repealed" in one place, to describe Amendment 2. So Romer is not about impermissible repeal, but rather about unfair exclusion of a group from a benefit.

Part of what made the initiative in Romer so unfair, the Court said, was its sweeping breadth. So the second argument Judge Reinhardt makes for striking down Proposition 8 - its narrowness - not only finds no support in Romer, this argument is actually undermined by the reasoning of Romer.

There are other, related, problems with Judge Reinhardt's opinion. His finding that Proposition 8 cannot rationally be thought to reflect California's desire to proceed cautiously with major social change because the initiative was styled as a "permanent" cessation of, rather than a moratorium on, same-sex marriage is quite unconvincing. A cessation is always no more than an indefinite break, insofar as the people of California remain free to repeal any state law in the future, even Proposition 8 itself. Indeed, can anyone see last week's decision coming out differently if Proposition 8 had been written to require all state officials to implement "an indefinite moratorium, until further action from the people, on all same-sex marriages, so that Californians may safeguard their vision of the institution of marriage in light of the way marriage has developed throughout history and across the nation"?

The analytic moves Reinhardt makes create problematic incentives for states. If a state chooses to experiment by recognizing same-sex marriage (or any other right not required by the federal Constitution), it can now reasonably worry that repeal will be difficult. If a state confers most of the tangible benefits of marriage on same-sex couples, it can now reasonably worry that its failure to extend the marriage label will be struck down as irrational.

Defenders of Judge Reinhardt might suggest that he was in a bind. Proposition 8, they may say, was a measure driven by hostility towards gays, but direct evidence of such animus on the part of decision makers (in this case voters) is always hard to adduce. And, they would add, the Supreme Court has itself (in cases like Romer) struck down anti-gay measures using inadequately explained and/or logically unconvincing reasoning. Constitutional law, they might observe, is always choppy in a period of transition, during which courts are working their way through what they think is the constitutionally right answer but are restrained for prudential reasons from articulating at the outset a full-throated explanation of the constitutional principles involved. Given pragmatic constraints, Reinhardt defenders would suggest, the judge could not easily have held that equal protection principles should make us skeptical of bans on same-sex marriage everywhere, and that such bans cannot survive the intermediate or strict scrutiny they warrant. Such an intellectually honest opinion would have forced the Supreme Court to decide a major issue that the Court could think will benefit from percolation in the states and the lower courts for a while. On this view, Judge Reinhardt, by ruling on California-specific grounds, reached the constitutionally just result while doing the Supreme Court (and Anthony Kennedy in particular) a favor by giving the justices a basis on which they can stay out of this tangle, for now.

However, even if someone were to agree with the premises of Judge Reinhardt's defenders (and I take no position on that here), I think his opinion is still open to question because there was a better path to the same endpoint. Had the Ninth Circuit held that the official proponents of Proposition 8 lacked Article III standing to defend the measure in federal court, Proposition 8 would die in California just as it does if Reinhardt's approach is allowed to stand. It would die because Governor Jerry Brown and Attorney General Kamala Harris (the only persons with proper standing in federal court to defend the measure) have made clear they will not defend it. A class action on behalf of all same-sex couples in California could be brought (as Proposition 8 challengers probably should have done in the first place), and then (after Perry and Harris decline to defend) a default judgment in favor of this class of plaintiffs and a corresponding statewide injunction against enforcing Proposition 8 would ensue.

This result would have been better for same-sex marriage proponents than Reinhardt's approach because even though the same result invalidating Proposition 8 would be reached: (1) California would join the ranks of the same-sex marriage states in the important national tally by virtue of decisions of elected California officials (Attorney General and Governor) and the voters who elected them, rather than by unelected federal judges (especially the notoriously liberal Reinhardt); (2); the likelihood of Supreme Court review would be much lower than it is even under Reinhardt's California-specific approach; (3) Judge Reinhardt could appear to be displaying judicial modesty and obedience by taking to heart the admonitions by the Supreme Court reversing a Ninth Circuit case he authored 15 years ago concerning the lack of initiative proponent standing in federal court; and (4) there would be no doctrinal externalities to other settings arising from Judge Reinhardt's curious reasoning.

The only remaining question is whether the Ninth Circuit's (or the Supreme Court's, for that matter) hands are tied with respect to initiative sponsor standing because of the California Supreme Court opinion last November indicating that proponents have standing to assert the interests of the state in state court. Simply put, the California court's ruling does not resolve the standing question in federal court. Certainly if California courts were to hold that every voter has standing to assert the interests of the state electorate to defend an initiative when statewide elected officials decline, such a determination would and could not create citizen standing in federal court.

Instead, as the Supreme Court has made clear in cases discussing jus tertii (or third-party) standing, when someone is permitted standing in order to assert the individual or collective rights of another individual or group, the person seeking standing ideally would have a special relationship with the right holder(s) to satisfy the Court's prudential concerns that there will be adequate representation. With regard to elected officials representing the interests of the voters, tradition and the fact that the officials are elected or appointed create that relationship of accountability and generate good representation. But with respect to initiative proponents who were not known or picked by the voters when the electorate adopted an initiative, there is no process (and no real discussion by the California Supreme Court) that explains why the proponents are accountable to and thus can be representatives for the voters. In a 1997 opinion, the Supreme Court expressed "grave doubts" about initiative proponent standing and observed:

[Elected] [s]tate legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State's interests. [But initiative proponents] are not elected representatives, and we are aware of no Arizona law appointing initiative proponents as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as [constitutionally] qualified defenders of the measures they advocated.

The California Supreme court has told us that California law authorizes proponents to represent the state in state court. Is that enough? I would argue not. Note that the Supreme Court pointed out at least two problems with proponent standing in Arizona - lack of state law authorization, and also the fact that proponents are not "elected representatives" or "appoint[ed] agents." The California court ruling may address the former, but does precious little to blunt the latter.

Why should lack of election or formal appointment as a state agent matter? Because Proposition 8 proponents were never actually chosen by the people, nor designated by any of California's elected representatives, to speak for the state's electorate. Of course, the measure that the proponents proposed was adopted, but that does not mean that the electorate decided - or intended - that these particular proponents ought to speak or act for the voters in any representative capacity.

In short, initiative proponents 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.

In fashioning a workable balance between the competing concerns presented by initiative-proponent standing, the federal courts should recognize the possibility of proponent standing, but only when the conferral of power to defend on proponents is clearly provided for in state law. Such a rule gives voters adequate notice that when they adopt an initiative, they are in effect appointing certain persons to defend it in court.

Decisions issued in years past by the California courts that permit, but do not discuss, proponent standing seem inadequate to confer notice on the voters since, as the Supreme Court has recognized, rulings that tolerate but do not affirmatively discuss and affirm a court's jurisdiction over a matter are not entitled to any precedential weight. Instead, the appointment should be effected by a provision in a particular initiative (passed by the voters) that explicitly deputizes a particular proponent of that initiative as the party entrusted to defend the constitutionality of the law. It would be sensible for such explicit deputization to spell out who within the proponent organization is entitled to make key litigation decisions and concessions, and also what the relative power 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 that are different from the litigation strategy favored by the initiative proponents.

Or, the necessary appointment could take the form of a state statute or state supreme court opinion directly announcing clear standing rules for all initiatives from that point on. So, in light of the decision last November, perhaps voters in California should, going forward, know and factor in that when they approve an initiative, they are, in addition to adopting whatever policy is embodied in the initiative, effectively appointing certain persons to represent them in court. But because such state-law clarity was not in place when Proposition 8 itself was passed (and I note here that it was passed by a slim margin), I will not be surprised if the Supreme Court concludes that the requirements of federal standing are not necessarily met by the proponents in the Proposition 8 setting itself.

Denying them federal standing may have been (and may still be) the prudent thing to do.

Vikram Amar is the Associate Dean of Academic Affairs and a Professor of Law at the University of California, Davis School of Law. He writes, teaches and consults in the public law fields, especially constitutional law, civil procedure and remedies. He is a co-author of Constitutional Law: Cases and Materials, and he is a co-author on a number of volumes of the Wright & Miller Federal Practice and Procedure Treatise.

Suggested citation: Vikram Amar, Revisiting Standing: Proposition 8 in the Ninth Circuit, JURIST - Forum, Feb. 16, 2012,


February 14, 2012

The Devastating Disconnect between Rich and Poor

The Occupy Wall Street movement has drawn national attention to economic inequality, and several new studies and a book just published also invite us to consider the acuteness of this inequality, as well as its causes and/or consequences.   These publications all highlight education, to one degree or another, as a key indicator of class and class mobility.

The New York TimesNPR and the Los Angeles Times all ran features this week on Charles Murray's new book, Coming Apart:  The State of White America, 1960-2010.  Murray, labeled "a libertarian social scientist" by NPR (and worse things by other liberal pundits), is a controversial figure due in large part to his co-authorship of The Bell Curve.  In that 1994 book, Murray described  a "cognitive elite" who, he argued, get ahead in large part because of their superior IQs.  The controversy was understandable given his assertion that whites tend to have higher IQs than African Americans and some other minorities.

I want to focus here, however, on some of the less controversial information featured in Coming Apart. By this, I mean to steer clear of the book's commentary on values and related suggestions for remedying the problem.  (I do, however, recommend Paul Krugman's op-ed and Nicholas Confessore's review, both of which offer incisive observations regarding those aspects of the book).  Also, to be clear, I have yet to read the book and so rely here on characterizations from media reports.

Murray asserts that class divides us more than race or ethnicity.  Having expressed my desire to avoid controversy, I acknowledge that this may be seen as a controversial assertion if it is read as claiming that we are in a post-racial era.  Nevertheless,  less controversial sociologists such as UC Berkeley's Claude Fischer and Oberlin's Greggor Mattson made similar assertions in their 2009 article in the Annual Review of Sociology, "Is America Fragmenting?"  Plus, the burgeoning significance of class is a common theme among recent studies.  I do not believe we are in a post-racial era, but I am deeply concerned about the ways in which class divides and the consequences of those divisions.

To continue on the sensitive topic of race for a moment, I note that Murray explains his focus on class divisions among whites in order "to concentrate the minds of my readers" whose "reflexive response" to the discussion of the various social problems discussed in the book might be to assume that these problems exist only within minority communities.  Murray says he wishes to make the point that these are white problems, too.  (I have made a similar argument in asserting that if we want to understand how severe a handicap class can be, we might best look at whites--even white men--those privileged on the basis of race and gender yet struggling for economic security and upward mobility). The final chapter of Murray's book apparently shows how the impact of this class divide  among whites holds true across other racial and ethnic groups.

Murray emphasizes differences between what he calls the "new upper middle class" and the working class.  The way Murray slices and dices class, the former are 20% of white adults, and the latter constitute 30%.  The media coverage I have consumed does not indicate the income levels associated with these groups, nor does it indicate clearly whether Murray is focusing on the top and bottom segments of the white adult population or whether there might be a group below this "working class," such as the 15% or so of Americans living in poverty, or a group above the upper middle class, i.e., the very rich, the 1%.

Murray's depiction of these two groups focuses on educational, cultural and lifestyle differences between them.  (Read more here and here on the link between the cultural  and the material in relation to class).  Here is an illustrative quote from the NPR story:

Over the past 50 years the two groups have branched away from each other culturally and geographically. The "educated class," Murray tells NPR's Robert Siegel, has developed distinctive tastes and preferences in a way that is new in America, evinced in everything from the alcohol they drink and the cars they buy to how they raise their children and take care of themselves physically.

Added to that, spatial segregation has resulted in "ZIP codes that have levels of affluence and education that are so much higher than the rest of the population that they constitute a different kind of world," he says.

The economic and social balkanization is potentially very pernicious.

Murray asserts that even going back to 1923, an era of "great social and religious division," successful people tended to have working-or middle-class roots.   They thus had some shared experiences.  Now, however, many decision makers are "second or third generation affluent," leaving them completely out of touch with the working class experience.

"The people who run the country have enormous influence over the culture, politics, and the economics of the country. And increasingly, they haven't a clue about how most of America lives. They have never experienced it."

Murray contrasts the present situation with Eisenhower's 1952 cabinet, sometimes referred to as "nine millionaires and a plumber."  Murray points out that those millionaires were mostly the sons of farmers and merchants and thus had not grown up in affluence.  Compared to President Obama's cabinet, which is highly diverse in terms of gender, race and ethnicity, Eisenhower's cabinet reflected greater socioeconomic diversity.  (I have written about this here).

I have noted other contexts in which we see this evidence of this disconnect and its harms.  One is in the judiciary, as expressed by Judge Alex Kozinski in his 2010 dissent in Pineda-Moreno:

There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from the class of people who don’t live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live.

617 F.3d 1120, 1123 (9th Cir. 2010).

Another context in which we see evidence of upper middle class obliviousness to the working class (and to their own class privilege) is in elite higher education admissions.  A prominent recent study shows that admissions officers tend to hold against applicants their high school work experiences, labeling working students as "careerist."  Instead, admissions officers look for the sort of enrichment activities, e.g., international travel, music and arts training, associated with affluence. This suggests to me that admissions officers at posh colleges and universities know nothing about and therefore have no appreciation for the working class experience.  Needless to say, those admissions officers are also aggravating the class divide which Murray describes because they exclude those who could bring much needed socio-economic diversity to these career-making institutions.

The greater controversy associated with Murray's book is that he makes culture (a euphemism for laziness, lack of discipline) a culprit in the decline of the working class, while ignoring structural changes that have undermined their economic stability.  On this point, I tend to agree with Frederick Lynch, who reviews the book for the Los Angeles Times.  Lynch points out that Murray's focus on culture obscures something else:  "The destruction of values, economic sectors and entire occupational classes by automation and outsourcing."

But those aspects of globalization aren't all that Murray overlooks, as Lynch observes:

Murray inexplicably ignores a long line of studies showing that 21st century elites are post-American "citizens of the world" and that they're too busily involved with building a new global economy to know — or care about — what happens to less fortunate people in their own or others' nation-states.

The disconnect between rich and poor is not grounded merely in difference, it is grounded in disinterest at best, disdain at worst.

On the heels of this burst of media attention to Murray's book comes a story in Friday's New York Times headlined, "Education Gap Grows Between Rich and Poor, Studies Say."  In it,  Sabrina Tavernise reports on several recent studies which document and analyze burgeoning education inequality between upper and lower  classes--and also how these inequalities transcend race and ethnicity.  Tavernise describes how the "gap between rich and poor students has grown substantially" in recent decades, while the gap between white and black achievement has narrowed during the same period.  She discusses a number of studies by researchers at Stanford, Michigan, Chicago, UCLA, and the University of Pennsylvania, among others.

One study, forthcoming in Demography, found that "in 1972, Americans at the upper end of the income spectrum were spending five times as much per child as low-income families" but that gap had widened to nine times as much in 2007.  The comment of one author of that study, Frank Furstenburg, suggests that the divide is cultural as well as material: “The pattern of privileged families today is intensive cultivation.”  (I am reminded of the distinction that Joan Williams describes in her 2010 book between parenting styles of the affluent and the working class, the former fostering self-actualization and the latter self-discipline).

The gap between rich and poor is also reflected in college completion rates.  A University of Michigan study considered two cohorts of students.  Students in the first were born between 1961 and 1964, and students in the other were born between 1979 and 1982.  Among upper income students, college completion rates were high for both generations, but they increased significantly over time.  About a third of the upper income students in the first cohort completed college, but more than half of the latter cohort did so.  Among low-income students, however, the rates of college completion were much, much lower--at 5% for the earlier cohort, 9% for the latter.

Most studies that Tavernise discusses suggest that lower-income children and youth are held back educationally by a combination of the fiscal and cultural consequences of being lower income.

One thing increasingly clear from our nation's newfound attention to class divisions is that the divide is grounded more in educational disparities than in any other single factor, e.g., income, parental occupation.   Educational access is thus critical to class migration--to access to the rarefied upper middle class.  Yet other studies remind us that--contrary to assertions like that of Murray that the cognitive elite get ahead because of their high IQs--"wealth, race and schooling are more important to the inheritance of economic status, but IQ is not a major contributor."  (Bowles & Gintis 2002).  Other studies tell us that income is a better predictor of college completion than are test scores.

These studies highlight another cost of the class divide: precious human capital.  And that loss should concern every American in this highly competitive, global economy.

Here's a provocative piece about the class divide in the particular context of fine dining--the affluent diners on one side of the kitchen door, the working class kitchen staff on the other.  It also features the story of restauranteur Barbara Lynch's class migration; she grew up the daughter of a taxi driver.

Cross-posted to ClassCrits and SALTLaw Blog.

February 7, 2012

English Language Proficiency and Elective Office in the Southwest: An Arizona Ballot-Access Case Poses Important Questions

Cross-posted from Justia's Verdict.

A lot of recently enacted laws in Arizona have spawned major constitutional controversy.  But laws don’t have to be newfangled to generate heat.  In the space below, I analyze some of the constitutional issues raised by the recent invocation of longstanding Arizona laws that require candidates for elective office there to demonstrate proficiency in the English language in order to appear on the ballot.

The Dispute Involving English Language Competence and Officeholding Eligibility

San Luis, Arizona, is a small southwestern municipality where the vast majority of the inhabitants are Mexican-American and where the Spanish language is pervasive. The city’s Mayor, who is Latino, has challenged the eligibility of a candidate for City Council, Alejandrina Cabrera, also Hispanic, and has sought to block Cabrera’s name from the ballot on the ground that Cabrera is not proficient in English.

Ms. Cabrera is a U.S. citizen who graduated from high school in Arizona (ironically, the same high school from which the Mayor graduated), but who spent much of her childhood in Mexico.  The legal basis for the challenge against her derives from an Arizona law providing that a “person who is unable to speak, write and read the English language is not eligible to hold a state, county, city, town or precinct office in the state.”  This law, which appears to have been passed in the 1950s, echoes a provision of the Arizona constitution (adopted in 1910, at the time of statehood) that says, for state-level officials, that “the ability to read, write, speak, and understand the English language sufficiently well to conduct the duties of the office without the aid of an interpreter, shall be a necessary qualification for all state officers and members of the state legislature.”

A state trial judge, after an initial hearing, appointed a sociolinguistics expert, a Professor at Brigham Young University (a school located in neighboring, but much less Hispanic, Utah) to conduct a test of Ms. Cabrera’s language skills.  The expert (who himself is said to have a relatively pronounced Australian accent) reported back last week that “in [his] studied opinion, based upon the results of the range of tests and analyses [performed], she does not yet have sufficient English language proficiency to function adequately as an elected City Council member.”

The judge then removed Ms. Cabrera’s name from the ballot, and her lawyers have now gone straight to the Arizona Supreme Court for relief, arguing that the Arizona law should not be applied to bar her candidacy.

One of the Constitutional Provisions Implicated: The First Amendment

In addition to making for fascinating political theater, the case brings to mind a number of intriguing legal issues.  For instance, it is possible that the Arizona law requiring English competence is in tension with federal, or other state, statutes.  The federal Voting Rights Act (VRA) does ban state literacy tests as applied to voters, although this provision may not, by its terms, apply to officeholders.  But there may be other aspects of the VRA that do apply.

In any event, my focus here is on some of the constitutional questions that are implicated, in particular three sets of issues: (1) First Amendment rights of expression, association and ballot access; (2) Fourteenth and Fifteenth Amendment entitlements to equal protection and freedom from racial discrimination in political arenas; and (3) related problems that arise from vague and manipulable standards used in laws that regulate elections.

Let’s start with the First Amendment.  Surely individual adults enjoy the right to decide not to learn English—or any other language—just as they have the First Amendment right to master it if they choose.  The Supreme Court has affirmed the First Amendment right to teach and to learn languages; the corollary right of adults to decide not to learn languages would also seem strong.  But the question raised by the San Luis episode isn’t whether someone has a right to remain English-illiterate; the question is whether someone who is English-illiterate can be denied public office.

In general, no one has an entitlement to hold elective office.  That is why the Supreme Court has declined to apply so-called “strict scrutiny” to many laws that regulate access by candidates to the ballot.  Instead, as a number of Justices observed three decades ago in Clements v. Fashing, “[i]n assessing challenges to state election laws that restrict access to the ballot, [the] Court has not formulated a ‘litmus-paper test for separating those restrictions that are valid from those that are invidious’” under the Constitution.  The Justices went on to note that  “[d]ecision in this area of constitutional adjudication is a matter of degree, and involves a consideration of the facts and circumstances behind the law, the interests the State seeks to protect by placing restrictions on candidacy, and the nature of the interests of those who may be burdened by the restrictions.”

Of course, not all ballot access limits will be upheld.  Indeed, requirements that prohibit persons of particular races, ethnicities, religions or political parties, or persons who lack property, from seeking office are almost always going to be struck down.  But many laws regarding ballot access that don’t discriminate on the basis of an immutable trait, a socioeconomic status, or a particular viewpoint will be allowed.

Sometimes, the Supreme Court has gone farther than this and intimated that the government can’t prevent someone from running for office simply because of things they have done, or wish to do, that fall within First Amendment-protected activity.  In Republican Party of Minnesota v. White, for example, the Court held that Minnesota could not disqualify candidates for judicial election because they had registered their views on controversial issues of the day; the State’s desire to avoid perceptions of bias with respect to would-be judicial officers was an insufficient justification under the First Amendment.

In the past, including in a prior column, I have been somewhat critical of White, in part because the Court there didn’t grapple with the fact that other modes of selection, such as executive or blue-ribbon-panel appointment, would have permitted disqualification of candidates who had spoken out on public issues.  Of course, once a state decides to have elections, even if it could have proceeded by a different means of filling offices, certain requirements under the First Amendment that otherwise would not have been applicable sometimes kick in.

In the present Arizona situation, however, my sense is that requiring the “[]ab[ility] to speak, write and read” in English would not be treated the same as prohibiting candidates from registering their views on controversial issues of the day (as in White).  Language proficiency—while invariably the result of First-Amendment-protected learning activity—seems more like a skill or an attainment than a straightforward exercise of expressive liberty.

By way of analogy, consider a requirement that judicial candidates be admitted to practice law; the decision whether or not to become a lawyer and take a bar exam might be protected by the First Amendment, but a requirement of a license to practice law as a condition for running in a judicial election seems very different than the situation presented in White.  If my instinct here is right, it is at least arguable that the San Luis controversy does not implicate heavy-duty First Amendment review.

Or perhaps some requirements of demonstrated English language skill do trigger significant First Amendment scrutiny, but simply seem reasonable and important enough to survive even meaningful intermediate review by courts.  For example, a mandate that judges, in particular, be members of the bar makes sense because judges need to review the work of lawyers who appear before them, and need to understand law in order to apply and administer it.  (Indeed, judges might also need strong English language skills, since most of the consumers of a judge’s work product—lawyers, litigants, and would-be litigants—do use English primarily, and need to be able to fully understand and appreciate the judge’s reasoning and explanations.)

If we were to apply an intermediate-level test to Arizona’s requirement of English proficiency, the law might survive, because American government does operate mostly in English and because many of the documents that elected officials need to understand might be prohibitively expensive to provide in languages other than English.

But perhaps the distinctive demographics of San Luis—and the large percentage of constituents there who use Spanish as their main language—undermine the real-world reasonableness, and thus the constitutional permissibility, of applying the English proficiency requirement specifically to that geographical area.  In this regard, it is worth noting that the job of a City Councilperson in a small municipality might involve much more direct contact with citizen constituents than would be the case for elective officeholding at a higher level in the state, and the language skills necessary to succeed at the City Council might depend a great deal on the particular language skills of the city denizens themselves.

Other Constitutional Provisions that May Be Implicated: The Fourteenth and Fifteenth Amendments

As noted earlier, a ballot access law that embodied a racial or ethnic classification—say, a law limiting an office to members of certain races—would certainly violate the Constitution. Most obviously, it would violate the Equal Protection Clause of the Fourteenth Amendment and the Fifteenth Amendment’s ban on racial discrimination in the exercise of political rights such as voting, officeholding and jury service.  (Although the Fifteenth Amendment speaks explicitly only of a “right to vote” free from race discrimination, many of its framers understood the right to vote, linguistically and structurally, as including the right to be voted for, and to vote in a variety of capacities.)

Of course, the Arizona statute in question does not overtly regulate persons based on race or ethnicity, but rather based on English language proficiency.  Yet few could deny that there is a strong correlation between English proficiency and race/ethnicity, especially in the American Southwest.  There is, in other words, a racially/ethnically disparate impact (against minorities) that is created by a requirement of English language proficiency.

Ordinarily, in equal protection law, evidence of a racially disparate impact, without accompanying evidence of a racially discriminatory intent on the part of the government actor that has imposed the burden, is insufficient to make out a claim of a federal constitutional violation.  There may be evidence of racial animus against Latina(o)s in connection with the adoption of the Arizona constitution in 1910 and/or the enactment of the Arizona statute  in the 1950s—I cannot say for certain, as I am not expert in the history surrounding these measures.  Yet even if there is no smoking-gun evidence of racism underlying the adoption of the English language proficiency requirements, I should point out that the one legal realm in which the requirement of proof of invidious motive is, in practice, relaxed is the realm of political rights—voting, officeholding, jury service and the like.  In these areas, unlike in the areas of discrimination in housing, education or employment, disparate impact alone—without strong proof of invidious intent—sometimes carries the day.

So because the Arizona law has such a pronounced disparate impact along racial/ethnic lines in the context of a core political right—the ability of racial minorities to hold office and to elect candidates of their choice—the law might be subject to successful challenge even absent strong evidence of racial motivation.

Another Constitutional Issue Possibly Plaguing the English-Language Requirement: Vagueness

All of this brings me to what might be the biggest vulnerability in the Arizona requirement: the vagueness and manipulability of a standard of “[i]nab[ility] to speak, write and read” in English.  Remember, the Arizona law disqualifies from all elected offices those who are “unable to speak, write and read” in English.  What does “unable” mean?  Who decides?  How sophisticated does one’s understanding of the presentation of ideas in English have to be to qualify?  And how might this standard vary by office?

These are key questions, because imprecision in the standard inevitably creates discretion on the part of the enforcer.  And that discretion may be manipulated by bureaucrats and even judges (especially state judges, who are often elected) to achieve impermissible partisan or racial ends.

In some settings, imprecision may be relatively untroubling.  For example, we may not be too worried by a judge’s having the power to excuse a juror “for cause” if the judge thinks that the juror’s language skills are insufficient to process the evidence in a particular case. Although we might actually prefer use of a predetermined test of English competence even in this setting, in large part our tolerance of a vague standard here might stem from our sense that jurors are considered relatively fungible, jurors are not selected for their particular opinions and policy proposals, and each litigant has a due process right to have jurors understand her case.

But would-be legislators, be they local City Council members or state House members or Senators, are far from fungible.  To the contrary, each represents a distinct combination of policy preferences and personal qualities.  And the constituents/voters have strong interests in being able to elect the particular candidates of their choice.  (In this vein, think back to Bush v. Gore; one big problem with the assertedly vague “intent of the voter” standard being applied differently in each county in Florida in 2000 was the strong possibility that each ballot counter would, or at least might, use the softness of the standard to favor his preferred candidate for President.)

For these reasons—to make sure that voters who belong to racial or political groups are not improperly deprived of their right to elect persons of their choice—ballot access laws should not be any fuzzier than is reasonably necessary.  Judged under that standard, the Arizona provision may be unnecessarily opaque.

And the U.S. Supreme Court itself may already have demonstrated it appreciates this kind of argument in a closely related setting.  In what is probably the most famous Supreme Court case involving the permissibility of a literacy test, Lassiter v. Northampton Election Board, the Court in 1959 upheld the ability of North Carolina to require voters to demonstrate that they are able to “read and write any section of the Constitution of North Carolina in the English language.”  English literacy, the Court said, is a reasonable quality for states to insist that their voters possess before exercising the franchise.

Lassiter involved a literacy test for voters, not officeholders.  And Lassiter predates (and is largely eclipsed by) the Voting Rights Act, which, as noted above, statutorily prohibits literacy tests for voters.  Moreover, Lassiter also predates a number of important constitutional voting rights cases of the 1960s declaring voting to be a fundamental right (and it predates, as well, the increase in the amount of political information that is available through television and video, media that one needn’t be literate to understand.)  For these reasons, whether Lassiter is still good law may be open to question.

But even the Lassiter Court, whose result might strike some people as conservative, recognized that not all literacy tests are constitutionally tolerable.  To be sure, a requirement that would-be voters read and write passages from the state constitution was upheld.  But in the same breath, the Court disparaged a law challenged in another case that required would-be voters to “understand and explain” an article of the federal Constitution.  The Justices said that the latter law, because of its nebulous, subjective character, opened the door to—and was likely a product of—racial discrimination:  “The legislative setting of that provision and the great discretion it vested in the registrar made clear that a literacy requirement was merely a device to make racial discrimination easy.”

And the Arizona provision—with its “unable to speak, write and read” test—arguably is more like the “understand and explain” law called into question by Lassiter than the “read and write any section of the Constitution of North Carolina” literacy law that was actually upheld.

The Arizona courts will have to decide how to resolve this matter very quickly, inasmuch as ballots need to be printed and distributed soon for the March primary election in which Ms. Cabrera hopes to run.  In a year sure to provide much election-related legal excitement, this seems a case well worth watching.


February 1, 2012

The Myth of Rights

Professor Ashutosh Bhagwat's book, The Myth of Rights, has just been issued by the Oxford University Press in paperback.

Book description:
Constitutional rights lie at the heart of American self-identity.  We are a free people, goes the story, and it is our constitutional rights which protect that freedom.  Appealing as it is, however, this story is woefully incomplete.  What is a constitutional right?  If asked, most Americans would say that it is an entitlement to act as one pleases – i.e., that rights protect autonomy. That understanding, however, is wrong; it is, indeed, The Myth of Rights.  Rather, the primary purpose and effect of constitutional rights in our society is structural, to restrain governmental power so as to maintain an appropriate balance between citizens and the State, and an appropriately limited role for the State in our society.  Of course, restricting governmental power does have the effect of advancing individual autonomy, but that is not the primary purpose of rights, and furthermore, constitutional rights protect individual autonomy to a far lesser degree that is generally believed.

A structural approach towards constitutional rights brings clarity to many difficult constitutional controversies, including flag-burning, the ongoing debates over affirmative action and same-sex marriage, and the great battles over executive power fought during the second Bush Administration.  The Myth of Rights discusses the constitutional issues posed in these, and many other areas of law and public policy, and explains why a structural approach to constitutional rights illuminates these disputes in ways that an autonomy-based approach cannot.  By the end of the book, readers will understand that while constitutional rights play a critical role in our legal and political system, it is a very different role from what is commonly assumed.