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.

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.

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

In today's column, the first in a two-part series, we begin to analyze and assess an important decision handed down last week by the United States Court of Appeals for the Ninth Circuit concerning discrimination against would-be jurors who happen to be gay or lesbian. In SmithKline Beecham Corp. v. Abbott Laboratories, a unanimous three-judge panel ruled that it violates the Fourteenth Amendment's Equal Protection Clause for a lawyer to "strike" (that is, remove) individuals from a jury panel on account of their sexual orientation. As one of us explained more fully in an earlier column previewing the Ninth Circuit oral argument last fall, the antitrust lawsuit involved HIV medications, and an attorney for one of the companies (Abbott) exercised a so-called "peremptory strike" (also known as a "peremptory challenge")-effectively removing an individual from inclusion in the jury-because the would-be juror was "or appears to be, could be, homosexual." Peremptory challenges allow each side of a case to strike an equal number of would-be jurors for no supportable reason, solely because of a lawyer's hunches or intuitions about how a particular person might behave and decide as a juror.

In holding that judicial acceptance of Abbott's peremptory challenge would violate the Constitution, the Ninth Circuit opinion, authored by Judge Reinhardt, made a number of analytic moves. First, the panel had to determine whether an earlier three-judge Ninth Circuit panel ruling from 2008, Witt v. Department of the Air Force-which held that governmental actions discriminating on the basis of sexual orientation need only satisfy the lowest, most deferential, "rational basis" standard in order to be upheld under the Equal Protection Clause-is still good law. If Witt's teaching that sexual orientation discrimination is not, as a general matter, subject to any kind of beefed-up constitutional scrutiny is still good law, it would be binding on the SmithKline panel judges, and the panel would have been required to come out the other way in SmithKline, since the Supreme Court has stated that peremptories may be used to remove individuals who are members of a class that is protected only by rational-basis review.

The SmithKline panel instead decided that Witt's rational-basis-review approach is inconsistent with-and thus no longer binding because of-the Supreme Court's ruling in United States v. Windsor, the case decided last summer that struck down the Defense of Marriage Act (DOMA), the federal law denying recognition to same-sex marriages. The Ninth Circuit found Witt to be inconsistent with Windsor because the Court in Windsor, whether the Justices admitted it or not, effectively applied "heightened scrutiny" (rather than rational-basis review) in holding that the DOMA violated equal protection guarantees. The Ninth Circuit's reading of Windsor was crucial to getting around Witt. In this vein, the Ninth Circuit had to (and did) decide not only that Windsor applied heightened scrutiny to DOMA, but also that Windsor is not limited by the facts or context of that case, and instead stands for the legal proposition that heightened scrutiny now applies to all government actions that discriminate on the basis of sexual orientation. Based on that conclusion, the Ninth Circuit went on to determine the result of heightened-scrutiny review of sexual orientation-based peremptory challenges under the Fourteenth Amendment.

In the space below, we focus on the beginning of Judge Reinhardt's analysis and examine the Ninth Circuit's initial moves-the notion that subsequent Supreme Court authority could, by implication, reverse earlier clear Ninth Circuit precedent, the determination that Windsor is best read as applying heightened scrutiny to DOMA, and the contention that Windsor effectively requires heightened scrutiny to be applied to all government discrimination on the basis of sexual orientation. In Part Two of this series, we examine some of the later moves that the Ninth Circuit made-including the application of heightened scrutiny in the peremptory challenge context-and also explore where the case may go from here.

Was the Ninth Circuit Right That Supreme Court Authority Can Implicitly Erase Earlier Circuit Precedent?

No one would deny that a Supreme Court ruling that directly contradicts a Circuit Court opinion, whether the Circuit opinion is recent or old, would effectively eliminate the precedential authority of the lower court's ruling. But the issue in SmithKline is a little different. The Ninth Circuit conceded that Windsor (the recent Supreme Court case) doesn't directly contradict Witt (the older Ninth Circuit ruling), but determined instead that the reasoning of Windsor is in tension with Witt-that the two cases seem to reflect different mindsets-so that if we had to predict how today's Supreme Court would decide Witt, we might bet that the Court would reach a result that is different from that reached by the Ninth Circuit in Witt.

One possible problem with the Ninth Circuit's getting around Witt by noting some analytic tension between it and Windsor's reasoning is the Supreme Court's own admonition that lower courts should not "underrule" older cases based on predictions about the direction in which the Supreme Court is headed. As the Court put the point in 1989 in Rodriguez de Quijas v. Shearson/American Express, Inc.: "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [lower courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."

One might think that this principle prevents the Ninth Circuit from ignoring Witt in favor of the new direction that is reflected by Windsor. But, in fact, the Shearson/American Express principle may have no application in this setting, because Witt (the older case that is arguably on point) is not a Supreme Court case, but rather simply a prior three-judge panel case from the Ninth Circuit. It is not obvious why three-judge panels of a Circuit court should bind subsequent three-judge panels of the same court in any event. The best answer is probably the need for some stability so that persons within a Circuit can know "what the law is." But these intra-court stability concerns are less weighty than the reasons that explain why Circuit courts have to obey older rulings from a superior court-the Supreme Court (or an en banc panel of the Circuit). "Vertical" hierarchy and obedience to precedents of higher courts implicate different concerns than "horizontal" stare decisis (whereby a court pays deference, even strict deference, to its own rulings). So the Ninth Circuit was correct to carefully examine Windsor to assess the level of tension between it and Witt. (If the Supreme Court had, in some prior case, clearly ruled that sexual orientation discrimination implicates only minimum-rationality review and not heightened review, then the Shearson/American Express principle might apply here. But the clear holding in Witt-that minimum rationality review applies-came from a three-judge Ninth Circuit panel, not the Supreme Court.)

Did the Court Properly Read Windsor as a Case Employing Heightened Scrutiny?

Judge Reinhardt concedes, as he must, that the Windsor opinion does not explicitly state the level of scrutiny that the Court is employing to strike down DOMA. Accordingly, he looks to three factors that Ninth Circuit precedent requires him to consider in order to determine whether the level of scrutiny utilized in Windsor was, in fact, more rigorous than the highly deferential, rational-basis standard of review. The three factors are: (1) whether the Windsor opinion considered post-hoc rationalizations for DOMA-hypothetical purposes that might conceivably justify the law-or instead focused only on the actual goals Congress relied upon in enacting the statute; (2) whether the Windsor opinion required that there be a "legitimate" state interest to "justify" the effect of the law; and (3) whether the cases that were cited in Windsor themselves applied rational-basis review or heightened scrutiny.

With regard to the first factor, Judge Reinhardt correctly concludes that Justice Kennedy's opinion in Windsor examines the actual purpose of DOMA in considerable detail, and that an emphasis on the legislature's actual purpose strongly suggests that some form of heightened scrutiny is being applied.

An analysis of the second factor-the requirement that there must be a legitimate state interest to justify the challenged law-is more complicated, however, because, in some circumstances, we think the insistence on "legitimate" purposes for upholding a law is consistent with an application of rational basis review. And in other contexts, doubts about the legitimacy of the state's purpose may undermine the validity of the law, but they do so outside of the framework of rational basis review, intermediate level scrutiny, or strict scrutiny. For these reasons, the use of the word "legitimate" is not a signal of heightened scrutiny.

When courts focus on the state's interest in equal protection cases, what differentiates rational basis review from intermediate-level scrutiny or strict scrutiny, as a formal doctrinal matter, is that the latter two standards require, respectively, an "important" or "compelling" state interest. Conversely, a modest or even marginal state interest can satisfy rational basis review. But under all three standards, the state's interest must be "legitimate." Suppose, for example, that Congress had adopted DOMA for the express purpose of complying with what Congress understood to be divine law condemning same-sex marriage. Obedience to religious requirements is not a legitimate state purpose. Even under rational basis review, a court cannot use this purpose as a post-hoc rationalization to sustain a law.

Another state interest that lacks legitimacy, and which is relied on in cases cited in Windsor, such as Texas v. Lawrence and Moreno v. Department of Agriculture, is the goal of degrading or demeaning a group because of bare animus toward its members. The nature and scope of this characterization of a purpose as "illegitimate" remain unclear. Certainly, the goal of demeaning and punishing drug dealers would not undermine the constitutionality of statutes criminalizing drug trafficking.

Moreover, and more directly relevant here, the conclusion that a law serves an illegitimate state interest does not trigger the application of heightened scrutiny so much as it does an automatic invalidation of the law without further review. Heightened scrutiny is often described as mechanism that enables courts to flesh out impermissible state purposes. If a court determines at the outset that a law serves illegitimate purposes through an independent analysis, there is no reason to "flesh out" what the court already knows.

Indeed, if we examine this section of Judge Reinhardt's opinion more closely, it appears that his emphasis on an inquiry into the legitimacy of a law does not really pertain to questions about whether a law serves impermissible purposes. Instead, Judge Reinhardt seems primarily concerned that the Windsor opinion discussed the harm caused by DOMA and the government's need to justify such consequences if the law was to withstand the equal protection challenge directed against it. Reinhardt argues that this kind of implicit balancing of interests suggests more rigorous scrutiny than the highly deferential rational basis standard of review.

Indeed, it does. But does this necessarily mean that the Windsor opinion was applying heightened scrutiny to DOMA? As Judge Reinhardt acknowledges in his discussion of the third factor-an examination of the cases cited in Windsor to determine whether or not they themselves employed heightened scrutiny-sometimes the Supreme Court has applied rational basis review to a law, but the scrutiny it employed was more rigorous than the conventional leniency associated with a rational basis analysis. Moreno, dealing with discrimination against "hippie" households, was one such case. Romer v. Evans, involving discrimination against gays and lesbians, also cited in Windsor, is another, as is Cleburne v. Cleburne Living Center, Inc., (a case that wasn't cited in Windsor) involving discrimination against the mentally retarded. One can certainly argue with some justification that the analysis in these hybrid rational basis cases arguably parallels the analysis in Windsor.

But it is less clear to us than it is to Judge Reinhardt that these "rational basis with teeth" cases should be characterized as applying heightened scrutiny, such that other laws burdening the same groups at issue in those cases in other settings would be subjected to rigorous review. As a general matter, we see no evidence that Cleburne or Moreno has changed the level of review applied to laws discriminating against the mentally retarded or "hippie" groups. True, these not-so-deferential rational-basis cases cannot easily be incorporated into the multi-tier system of review that the Court utilizes in equal protection cases. But at least for now, until the Supreme Court tells us otherwise, they are rational-basis cases.

As Judge Reinhardt acknowledges (and as we noted earlier), the Supreme Court has stated that "'(p)arties may . . . exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to 'rational basis' review.'" Accordingly, one may argue with considerable force that as long the Court considers cases like Romer, Moreno, and Cleburne to have been decided under rational basis review, lower courts adjudicating equal protection claims against the use of peremptory challenges to strike gays, hippies, and the disabled from juries have no discretion to invalidate these jury selection decisions.

Even if Windsor Applied Heightened Scrutiny, Did It Do So Under Equal Protection Alone?

Finally, Judge Reinhardt's opinion is as notable for what it omits as for what it says. There is virtually no mention in SmithKline of the federalism argument that makes up so much of Justice Kennedy's opinion in Windsor. Clearly, Justice Kennedy's majority writing in Windsor emphasizes the fact that the institution of marriage has been, and should be, a subject of state, rather than federal regulation. What is less clear in Windsor, however, is how this federalism analysis fits together with Justice Kennedy's equal protection arguments. The uncertainty about precisely how the structural (federalism) and rights-based (equal protection) arguments fit together to support the Court's holding in Windsor may have contributed to Judge Reinhardt's decision to ignore the federalism aspect of Windsor altogether, and discuss the equal protection analysis in isolation.

Yet we think there may be a meaningful way to integrate the federalism and rights-based arguments in Windsor. There is sometimes a structural dimension to equal protection doctrine. In equal protection cases involving discrimination against non-citizens, for example, the Court sharply distinguishes between the level of review applicable to state laws discriminating against non-citizens, and the standard applicable to federal laws involving similar discrimination. Because the power to regulate immigration and naturalization is vested in the national government, state laws discriminating against non-citizens are more problematic and suspicious than discriminatory federal legislation. Accordingly, state laws discriminating against non-citizens receive much more rigorous review. Even if the federal government can permissibly regulate where resident aliens may live in the United States, a state has no business burdening their mobility.

A similar but mirror image analysis arguably applies in Windsor. Because marriage is quintessentially a matter of state sovereignty and control, it is federal laws discriminating against couples a state deems to be married that seem suspicious and problematic and warrant at least rational basis with teeth review. Under this analysis, however, it is harder to read Windsor as holding that all laws discriminating against gays and lesbians should receive heightened scrutiny, where there is no structural basis for distinguishing between the exercise of federal or state sovereignty in the government's actions.

In Part Two of this series, which will appear on this site on February 14, we will continue our analysis of Judge Reinhardt's approach, and also discuss the likelihood that the Supreme Court would be interested in this case.

Cross-posted from Justia's Verdict.

Silicon Valley billionaire investor Tim Draper recently unveiled a plan to divide up California into six separate states because, in his view, "California's diverse population and economies [have] rendered the state nearly ungovernable." In the space below, I begin to identify some of the political and constitutional hurdles this proposal faces. Because the topic is vast and complicated, in today's column I can do no more than spot and preliminarily analyze some of the major issues; if and when the proposed measure successfully moves through various stages of the political process, I shall likely offer a more detailed analysis of many of these questions.

A Summary of Mr. Draper's "Six Californias" Proposal

Mr. Draper has drafted and submitted to the California Attorney General an initiative measure that would, if it qualifies for the ballot and is then enacted by the State's voters, amend the California constitution and statutes to provide for the creation of six separate states out of what currently makes up the Golden State. The six new states the measure creates are: the State of Jefferson (consisting roughly of the rural counties north of the Sacramento area all the way to the Oregon border); the State of Northern California (consisting roughly of an area from Marin and Sonoma Counties on the Pacific Coast, extending eastward through the Napa and Sacramento regions, and to the northern Sierra mountains all the way to Nevada); the State of Central California (consisting primarily of the agriculture-based Central Valley and the middle part of the Sierra mountain range); the State of Silicon Valley (consisting generally of the San Francisco-Oakland-San Jose metropolitan region, extending South to the Monterey/Carmel area); the State of West California (consisting primarily of the Los Angeles region North to the Santa Barbara area); and the state of South California (consisting generally of San Diego, Orange and Riverside Counties).

The proposed lines dividing each of the six new states are provisional; under Draper's proposal, over the next few years, any county that adjoins any of the proposed states can choose to become part of that contiguous state, provided that the counties that are provisionally in that neighboring state also agree to add such a county. On January 1, 2018, the Governor of California is to certify to Congress that California has consented to the creation of six separate states that are defined along the lines described above-subject to any modification that has occurred because some counties have successfully attempted to join contiguous proposed states-and to ask Congress to approve the creation of these six new states.

Draper's initiative also has a provision appointing the "official proponent" of the measure (presumably himself) as an "agent of the State of California" for purposes of defending the initiative measure against legal challenge (presumably in federal, as well as state, court). That provision gives the official proponent the power to "supervise" any legal defense provided by the Attorney General, and the power to hire, at public expense, outside counsel who will then be made "Special Deputy Attorney General," to defend the measure if the proponent, in his "sole determination," feels that the Attorney General is "not providing an adequate defense."

On its face, the plan sounds far-fetched; indeed, it may be tempting to treat this proposal as one of the hundreds of initiative ideas in California that never go anywhere. But to do so would be to ignore the fact that Draper has indicated that he will provide whatever resources are needed to gather the signatures to qualify the measure for the ballot. And with his money, stature, and connections, Draper is likely to be able to succeed in at least getting the measure in front of the state's voters.

What Happens After the Measure Qualifies: Political Hurdles in California

Let us assume that Mr. Draper's measure is put before the voters. It would then, of course, face political as well as legal hurdles. As a political matter, it would have to win support both in California, and in Washington DC, because the creation of new states requires, under Article IV of the federal Constitution, the consent both of the legislatures of the involved states and of Congress. As to the state electorate, while it may be true that California (like the nation and like many other states) has endured problems in self-governance over the last decade-plus, whether Californians are ready to make such a radical change is far from clear. There is, to be sure, tension between different parts of California-the communities that make up the large and densely populated metropolitan areas on or near the coast have very different demographic, economic, cultural, and political characters than do the smaller communities located in the more rural areas to the East and Far North of the State. And there are rivalries between the Bay Area/Silicon Valley region, on the one hand, and the sprawling Southern California, Los Angeles-based, region on the other.

But there are also important centripetal forces at work here, forces that might be highlighted by some of the specific state lines that Draper proposes. Even though Draper's proposal allows for some tinkering with the boundaries pursuant to each county's authority to attempt to opt in to contiguous states, his provisional lines are an important starting point that will greatly influence voters throughout the state who have to approve the measure before any tinkering might begin. (And remember that a county can move only to a contiguous state-not to any of the six it might like best-and only if the counties in the contiguous state agree, which is far from guaranteed.) Although Mr. Draper has posited publicly that all six new states would prosper (presumably more than each of these regions does today) once they are freed from the currently unworkable yoke of California government, could the Central Valley and rural Northern counties really make do without state tax revenue that comes from the coastal and Sacramento areas? Would the new states of Jefferson and Central California have nearly the money they need to educate their children, or to maintain their infrastructures? (There is only one University of California campus - the promising but still very young UC Merced - and a few Cal State campuses located in these two new proposed states). Would relatively wealthy Marin County want to subsidize the Sierra communities of Placer and Nevada counties more or less all by itself, without the help of the rest of the Bay Area or the LA or San Diego regions? Does the Bay Area really want to let go of all the entertainment resources of the LA region? And does SoCal really want to give up all of the natural, cultural and educational resources associated with the North? And so forth.

Political Hurdles in DC

But let us imagine that a majority of Californians want to carve the state up, more or less along the lines that Draper offers. What about Congressional approval? There are plenty of political hurdles there too. Indeed, there at least two axes on which one might imagine opposition in Congress-interstate federalism and partisan posturing. As to interstate federalism, some states (and their representatives in DC) might be reluctant to reduce their current relative voice in the federal government, a consequence that would result from increasing California's share in the Senate from 2% (two out of 100) to 11% (12 out of 110, because six states would mean 12 Senators under the federal Constitution's command that the "Senate shall be composed of two Senators from each State.") Getting low-population states-that currently enjoy the fact that they have equal say with more populous states in the Senate-to effectively dilute their share of congressional ownership might be difficult.

On the other hand, some members of Congress may be moved, when considering a measure like Draper's, more by political-party considerations than by the clout their state wields in DC. Under the provisional lines Draper proposes, of the 12 Senators who would come from the six Californias, we could expect four (from Silicon Valley and West California) to consistently be Democrats, and four (from Jefferson and Central California) to lean Republican, with the other four (from Northern California and South California) harder to predict. But we could have a situation in which California moves from its current position of consistently producing two Democrat and zero Republican Senators (a net plus-two for the Democratic Party) to a situation in which the Californias could produce as few as four or five Democrats and as many as seven or eight Republicans (resulting in a net minus-two or even minus-four for the Democratic Party.) If the Democrats retain control of the U.S. Senate in 2018 (when Draper's proposal would be sent to DC), or if the President in 2018 is a Democrat, then Draper's measure might face partisan opposition in the Senate or in the White House (which has the power to veto any such measure), And all of that is to say nothing about how the creation of six Californias might affect the electoral college and partisan presidential politics, an extremely complicated question in its own right.

It's hard to know how any of these forces in DC might play out. Some analysts have argued that partisan considerations, more than other factors, have driven earlier episodes in American history in which new states have been added. If that was, and remains, true (a big "if"), perhaps some of the small states (that like being overrepresented in the Senate) tend also to be Republican states (that would like to take away the Democratic Party advantage in U.S. Senators from California.) And maybe some small states might think that they will share some rural, agriculture-based attitudes with at least two and maybe three of the newly created six Californias-attitudes that tend not to be currently reflected in the two Senators whom California currently sends to DC (because these two Senators are understandably influenced more by the coastal regions of California, where voters are concentrated.) Or perhaps federal Representatives and Senators from other states will be risk-averse, and simply not want to take a chance of increasing California's clout in federal processes (especially because all of the six new Californias might, for some time, continue to be tied to each other economically and culturally). In this regard, it bears noting that no new states have been added to the United States in over 50 years, and that no new state has been created out of an existing state for more than 150 years (when West Virginia was created out of territory wholly located in Virginia.)

Several Constitutional Issues Implicated by Draper's Proposal

Since space is short, I shall simply list four kinds of constitutional questions implicated by Draper's plan; detailed analysis of these, and other, constitutional questions must await another time.

1.  Can the people of a State validly authorize the creation of a new state by popular initiative? Article IV, Section 3, of the federal Constitution requires the "consent" of the "legislature" of each state whose territory is affected by a proposal to create new states. Can the people act directly as a "legislature" for these purposes, or do the elected folks in Sacramento have to sign on?
2. Even if the people can constitute the "legislature" of the state for these purposes, would enactment of Draper's proposal constitute "consent" when the precise boundaries of the six new Californias are not definitively before the voters when they vote? Draper's proposal makes clear that its enactment is intended to constitute Article IV "consent" to the creation of six new states, but can that consent be effective when the voters have no way of knowing what the new states will actually look like until the county opt-in process is completed? In other words, might the power Draper's proposal gives to counties to modify the provisional state lines constitute an impermissible delegation of the state legislature's authority to consent to the actual creation of the new states?
3. Can new states be validly created out of territories located entirely within existing states? Founding history and past practice (especially the additions of Kentucky and West Virginia) would suggest that the answer to this is clearly yes, but some scholars (most elaborately Michael Paulsen) have pointed out that Article IV's text and punctuation could easily be read to mean that while new states can be formed out of the territory formerly belonging to two or more states, a single state cannot be carved up into multiple ones.
4. Would the part of Draper's proposal authorizing Draper as an "agent of the State of California" for purposes of defending the measure in Court survive the standing analysis in the Supreme Court's Hollingsworth v. Perry case last year, in which the Court rejected the claim of standing by official proponents of Proposition 8 (California's initiative ban on same-sex marriage) to defend that measure in federal court? And how does the authorization provision in Draper's proposal square with Article II, section 12, of the California constitution, which provides that "[n]o amendment to the Constitution . . . by the Legislature or by initiative, that names any individual to hold any office. . . may have effect."

I recognize, of course, that all of these constitutional questions are complicated, and that some might be avoided by federal courts under the so-called "political question" doctrine. But each is worthy of further exploration, and many of them might influence (or at least be cited by) members of Congress or others who are inclined against the measure. I'll write more on these constitutional questions if Draper's proposal turns out to have legs.

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

Today we analyze a very intriguing issue raised by a case that will be heard by the U.S. Supreme Court next month, McCullen v. Coakley, in which the plaintiffs challenge a Massachusetts law limiting pedestrian traffic near abortion clinics.  The statute in question makes it a crime to "enter or remain on a public way or sidewalk adjacent to" a reproductive rights clinic within 35 feet of "any portion of an entrance, exit or driveway" of the facility.  The statute exempts from this prohibition persons who are entering or leaving the facility, employees or agents of the facility acting within the scope of their employment, emergency and utility personnel doing their jobs, and people who are using the sidewalk or public way to reach a destination other than the facility.  The law's challengers-individuals who seek to communicate with women who may, at that place and moment, be contemplating abortion-allege that the law violates the First Amendment.  The challengers lost in the U.S. Court of Appeals for the First Circuit, and in June the Supreme Court granted review.

The case raises many important constitutional issues.  Indeed, this is not the first time the Supreme Court has agreed to review, under the First Amendment, judicial or legislative attempts to regulate protest activity taking place outside medical facilities and abortion clinics, and among the questions presented in McCullen is whether the Court should overrule Hill v. Colorado, one of its important earlier cases relating to these matters.

Content/Viewpoint Based vs. Content-Neutral:  A Crucial Distinction

In the space below, we do not attempt to address all the significant constitutional issues the McCullen case presents.  Instead, we limit ourselves to the relatively confined question of whether a law like this one should be characterized as a "content-neutral" regulation of the "time, place or manner" of speech or conduct, or instead whether the law should be viewed as one that discriminates on the basis of the content or viewpoint of speech (or speakers).

This question is profoundly important, because under well-established First Amendment doctrines, if a law is content- or viewpoint-based, it is subject to the strictest judicial scrutiny, and will almost always be struck down. Content-neutral regulations of speech, by contrast, are reviewed under a more lenient, intermediate level of review and are often, although not always, upheld.  (We take no position in this column on how the Massachusetts law in question, or other situations we examine, should fare under the intermediate scrutiny test.)

Usually the Court determines whether a law is content- or viewpoint-based by looking at how the law is written.  For example, a law that prohibits all picketing in an area but exempts labor picketing is content-based, because the exemption from the regulation is defined on the face of the statute in terms of a particular topic or subject matter of speech.  Similarly, a law that explicitly makes it a crime to burn a flag "in order to show contempt" for it, but that does not prohibit burning as a means of respectfully disposing of a damaged flag, would be viewpoint-based. These laws would be subject to very high scrutiny.

Formal Neutrality and Disparate or Discriminatory Effect

The plaintiffs in the Massachusetts case would have to concede that the law they are challenging does not, as a formal matter, single out or even mention any identifiable speaker or particular subject or viewpoint of speech. The plaintiffs argue, however, that this law should be understood as a content- or viewpoint-discriminatory regulation because by restricting speech in a particular place, in front of reproductive health clinics, the state is burdening only one side of a debate. They contend that although the law may be neutral on its face, it is discriminatory in its effect.  And this discriminatory or disparate impact should lead courts to be skeptical of the law and strike it down for that reason.

In making their argument, the plaintiffs rely on the commonsense fact that speech in front of reproductive health clinics is overwhelmingly, if not exclusively, speech that is opposed to abortion.  As their brief argues:  "Massachusetts has . . . taken care to frame an Act that as a practical matter affects speech on only one issue-and, indeed, on only one side of that issue.  The Act's lack of generality or neutrality is demonstrated both by the specific locations at which it applies and by the specific speakers whom it affects." (Some of the amicus briefs in favor of the challengers also argue that the law should be viewed skeptically because the legislature's actual motive was problematic, but we defer discussion of so-called motive analysis under the First Amendment to another day, focusing here on whether the disparate effect of a law justifies treating it as a disfavored content- or viewpoint-based law.)

We do not deny that a law that singles out particular places for speech restrictions may often have a disparate effect on speech and debate.  People on one side of a debate often use particular places to express their message much more frequently and aggressively than do people on the other side(s) of the same debate.  But allowing courts to look behind the actual content of the statute and determine what standard of review to apply based on disproportionate effect could radically undermine settled doctrine, require the implicit overruling of many judicial decisions, and lead to the invalidation of laws that are already on the books, or that are likely to be enacted without controversy, because they are considered to be content-neutral regulations.

How Disparate Effect Analysis Would Disrupt the Case Law and Statutory Landscapes

The reality is that many of what today are generally considered to be content-neutral speech regulations were adopted in response to a problems created by identifiable classes of speakers with distinct messages or viewpoints. Under current law, we respond to that reality by requiring a statute to apply to all would-be speakers, not just those whose speech activity raised the legislature's consciousness about the need for regulation. Thus, a limitation on residential picketing, or a buffer zone in front of medical clinics, may be created in response to anti-abortion protests, but the laws responding to this problem must, as a formal matter, apply to labor picketing and other protests as well.   If the Court were to go beyond this current insistence on formal content- and viewpoint-neutrality, and begin subjecting all laws that have predictable disparate effects to the strict scrutiny that applies to content- and viewpoint-based laws, then  significant past Court cases  might require reconsideration.

For example, in the seminal case of United States v. O'Brien, the Court upheld a law that made it a crime to destroy government-issued draft cards, even if the cards were burned for expressive purposes as a form of political protest.  Could anyone doubt that the overwhelming majority of people who destroyed draft cards (and who were thus subject to the law) did so in order to express a particular anti-draft, anti-war, or anti-government point of view?  Or take Frisby v. Shultz, a case in which the Court upheld a ban on residential picketing, as applied to protesters who wanted to picket outside an abortion doctor's home.  Certainly, this ban had meaningful effect only on people expressing critical messages in front of a resident's home; people don't tend to picket in front of your house if they like what you're doing. Honesty compels the acknowledgement that the ban on residential picketing was prompted by, and in the real world most directly affected, anti-abortion activists.

Also, a disparate effect analysis might very well require the invalidation of other laws that current doctrine would tend to permit. To give but two (out of many possible) examples, facially neutral buffer zones around foreign embassies might be unconstitutional because pro-embassy supporters obviously tend to be less affected by (and less likely to be prosecuted under) such regulations than anti-embassy protestors.  And virtually all laws that try to regulate activity near funeral proceedings would be open to question. Over forty states have recently adopted such regulations. It is common knowledge that the vast majority of people today who want to assemble and demonstrate near funerals are members of an identifiable religious group with a distinctive, somewhat bizarre, and extremely unpopular message and point of view.

The Problems of Subjectivity and Disharmony With Other Constitutional Areas

In addition to requiring the overruling of some past cases and the invalidation of laws that are currently deemed constitutional, a change in doctrine emphasizing disparate impacts would add considerable subjectivity and indeterminacy to free speech cases. There will always be questions about both the extent of a predictable or expected disproportionate impact that is created by a law, and just how much of an impact is required to compel a conclusion that the law is content- or viewpoint-based.   For a court that eschews subjective standards (as this Court does, as evidenced by its unwillingness to recognize free exercise of religion claims against neutral laws of general applicability), it is hard to understand why increasing subjectivity and indeterminacy would be appropriate here. Free speech doctrine is complicated enough without blurring established, albeit complicated, categories.

Further, a Supreme Court decision holding that a locational regulation will, by virtue of disparate effects, be considered content- or viewpoint-based and thus trigger strict scrutiny would be anomalous and hard to reconcile with the way in which the Court considers disparate impact in other areas of constitutional law.  For instance, we can compare free speech doctrine to equal protection doctrine.  Under the Equal Protection Clause, government cannot discriminate against racial minorities (just as, under the First Amendment, it cannot discriminate against particular viewpoints.)  But in the equal protection context, a law that is formally race-neutral on its face, but that generates predictable disparate impacts along racial lines (such as a requirement of a high school diploma to be eligible for a government job) is not subject to strict scrutiny, notwithstanding that, in the real world, it tends to disadvantage racial minorities more than white persons. The Court, in the famous Washington v. Davis case in 1976, rejected strict scrutiny based on disparate racial impact, to avoid a slippery slope that would undermine the validity of far too much legislation. Think of all the laws-like flat sales taxes and bridge tolls-that have predictable disproportionate effects on poor persons, and thus on racial minorities (because of the unhappy correlation that persists between the two). All such laws would be subject to strict scrutiny under a disparate impact approach.

And in one important sense, the case for strict scrutiny for racially disparate laws is actually stronger than it is for laws that generate disparate speech effects. In the equal protection setting, if a racially disparate law is not subject to strict scrutiny, it is subject to a very deferential rationality review, which in many cases operates like a rubber stamp upholding the law. In the free speech arena, however, even laws that are not considered content- or viewpoint-based are still subject to a meaningful intermediate level of judicial scrutiny that often has real bite to it that can result in the invalidation of the law.

Conundrums Within Speech Doctrine That a Disparate Effects Approach Would Create

Moreover, a focus on disparate speech effects would create a range of doctrinal conundrums under the First Amendment itself.  Content-neutral regulations of speech serve important social functions. A particular location may be a very useful place to express a message, but it also may be a place where speech imposes serious burdens on third parties (including particularly vulnerable audiences such as patients at medical clinics or mourners at funerals), such that the speech needs to be regulated.  A multi-factor balancing test (the intermediate standard that currently governs content-neutral laws) may be the best way to take all of the relevant values and interests at stake in these cases into account. Yet the Court's heightening of review based on disproportionate impact would tend, in effect, to read the state's interest in restricting speech out of the picture because almost nothing passes strict scrutiny.

Another problem with increasing the rigor of the Court's review of locational or other regulations because of their foreseeable disparate effects on speech is that this approach would send conflicting and confusing messages to lawmakers. On the one hand, under the intermediate scrutiny that is currently applied, content-neutral speech regulations are not supposed to burden substantially more speech than is necessary to further the state's interests. This suggests that content-neutral laws should be drawn narrowly to cover as limited a time, place, or manner of speech as possible to serve the state's goals. But if a disproportionate effect approach makes narrow laws vulnerable to receiving heightened review precisely because their narrowness generates disparate effects, then legislatures are going to broaden laws as a matter of course:  The broader the scope of the law, the harder it is to find that the law disproportionately burdens any particular subject or viewpoint of speech. Thus, with courts emphasizing disproportionate effects, the state is forced to walk a constitutional tightrope and may violate the First Amendment if it deviates even a bit in either direction; if the state adopts a narrow law, the likelihood increases that the law will receive rigorous review because the law disproportionately burdens one subject or viewpoint of speech more than others, but if government broadens the law, the law is more likely to be struck down under the intermediate scrutiny test that will apply, because the law will inevitably restrict more speech than is necessary to further the state's interests. This means that a focus on disproportionate speech effects will do more than make judicial decisions in this area more subjective and indeterminate; it will also undermine legislative discretion and flexibility in drafting and adopting laws.

We are not suggesting that there are no possible answers to any of these seeming dilemmas, or that disparate effect should never factor into any well-conceived First Amendment analytic framework.  Rather, what we are saying is that before the Court begins to travel down this road, it needs to think carefully not just about clinic-access cases, but also about a much larger swath of free speech and larger constitutional doctrine.

Cross-posted from Justia's Verdict.

Yesterday the Federalism Working Group of the American Legislative Exchange Council (ALEC)-an influential and generally conservative policy-oriented institution that offers template legislation for state governments to consider adopting-was scheduled to meet to consider, among other things, a proposal that would empower state legislatures to add candidates to general election ballots for the office of United States Senator.  In the space below, I take up the question whether a proposal like this would be consistent with the federal Constitution.

Some Background on the Proposal and How It Might Be Analyzed

Here's more detail on how the proposal-entitled the "Equal State's Enfranchisement Act" (ESEA)-would work, were it to be adopted (as either a statute or a state constitutional amendment) by a state:  If twenty percent of the sitting members of the state legislature sign a petition nominating a person for the U.S. Senate (provided the person is not someone who has already been nominated by a primary election or political party committee), then that person is eligible (along with all others who also were nominated by twenty percent of the legislature) to be voted on by the entire legislature.  The legislature as a whole votes, and the person who gets the most support (even if that is less than a majority, presumably) is then included on the general election ballot (alongside candidates who earned ballot spots by more traditional means, e.g., winning party primaries) under the designation:  "State Legislature Candidate for United States Senate."  (For more background on the proposal, and on ALEC, readers can consult an item last month in The Huffington Post.)

Before I delve into the constitutionality of the ESEA, let me first make clear that I am not addressing the question, in this column at least, whether re-empowering state legislatures to pick U.S. Senators would be wise policy.  Remember that before the enactment of the Seventeenth Amendment (and the events that led up to it) in 1913, state legislatures did select U.S. Senators, but that system was altered by the Progressive era and a direct election movement that culminated in formal constitutional change.  Some modern commentators have lamented the extent to which popular election of U.S. Senators has led Congress to undervalue, and impose upon, state governments.  From their point of view, federal-state relations would be different, and better, if state legislative election of Senators were reinstituted.  But whether or not this perspective has any merit, the Seventeenth Amendment, and the distrust of state legislatures it reflects, is a part of the Constitution that must be respected until it is itself amended.

Let me also make clear that I am examining the question of what legitimate authority, if any, state legislatures have to place names on ballots for federal legislative offices.  The empowerment of state legislatures, under state law, to nominate candidates and place names on ballots respecting state legislative offices might raise important questions under the federal Constitution-questions involving, among other things, the First Amendment, the fundamental right to vote, and the provision in Article IV of the Constitution that guarantees in each state a "Republican Form of Government.  But these questions are distinct from the ones I explore below, even though there may be some analytic overlap.

A Key Question:  The Scope of State Legislative Power Under Article I, Section 4

With those caveats, let us turn to the heart of the matter, namely, whether a state legislature can be allowed to nominate a candidate for federal legislative office and direct that candidate's name be placed on the general election ballot bearing the designation "State Legislative Candidate." Answering this question begins with the recognition that the only power state legislatures enjoy in this regard is that which is affirmatively given to them by the U.S. Constitution, in Article I, Section 4, which provides that the legislatures of the states shall prescribe the "Times, Places and Manner" of holding elections for House members and Senators, subject to override by Congress itself.  The key follow-up question then becomes:  Can a state legislature successfully argue that its placement of a name on a congressional election ballot is a means of regulating the "manner" of the federal election?

Interestingly enough, there are no Supreme Court cases of which I am aware that are clearly on point.  Indeed, almost all of the cases dealing with the exercise of Article I, Section 4 powers by state legislatures that the Court has decided concern not the placement of candidates on the general election ballot, but instead the effective exclusion of particular candidates from the ballot.  That is, most of the so-called "ballot access" cases that the Supreme Court has issued involve state laws that are challenged by persons or groups on the ground that these persons or groups were wrongly denied places on the ballot, not on the ground that the state government has directly put someone else on the ballot who does not belong there.  In this conventional ballot access setting, the Court has recognized that states enjoy "broad power" to prescribe the procedural mechanisms for conducting congressional elections, to deal with such matters as voter notification, voter registration, supervision of ballot places, prevention of fraud and corruption, and the counting of votes, to ensure that elections are "fair and honest" and that "some sort of order, rather than chaos, is to accompany the democratic process."

But even as the Court has been generous to state legislatures in some of these cases, it has been careful to adhere to a line between procedure and substance; state legislatures are allowed "to issue procedural regulations," but are not granted the "power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints."  A state legislature's constitutional inability to favor particular federal legislative candidates and disfavor others explains why the Supreme Court held a dozen years ago in Cook v. Gralike (where it employed the crucial language just quoted) that the state of Missouri could not, on its federal election general ballot, print the statement "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS" next to the name of a candidate for the House of Representatives who was unwilling to promise to support a particular federal constitutional amendment, seemingly supported by the voters of Missouri, that would create term limits for members of Congress.  The ballot designation Missouri wanted to impose was, said the Court, "plainly designed to favor candidates who are willing to support a particular form of a [federal] term limits amendment . . . and to disfavor those who either oppose term limits entirely or would prefer a different proposal" and as such was not a "generally applicable and evenhanded" regulation designed to protect the integrity and reliability of the electoral process itself.  Instead, by the state's weighing in with the voters "at the most crucial stage in the election process-the instant before the vote is cast," the Missouri regulation impermissibly "attempt[ed] to dictate electoral outcomes."

It is hard to see how the ESEA would fare any better under this reasoning.  By adding the name of a candidate to the ballot, and by designating this person as the "State Legislature Candidate," the state legislature is clearly endorsing one person on the ballot.  As a result, the legislature is, to use the words of the Cook Court, "favor[ing]" one candidate, and thereby "disfavor[ing]" the rest (since single-seat elections are zero-sum affairs).  And this influence by the state should not be taken lightly; as Chief Justice Rehnquist observed in his separate opinion concurring in the result in Cook, when a state adds things onto a ballot, it "injects itself into the election process at an absolutely critical point-the composition of the ballot . . . is the last thing the voter sees before he makes his choice. . . ."  Whether or not state legislatures can require or allow the placement of more neutral kinds of information on federal ballots (such as the occupation of each candidate, which might be okay, but which also might be problematic to the extent that it may tend to favor incumbents, who list their current office as their occupation), placement of an additional candidate and an implicit or explicit endorsement of that candidate on the ballot itself by the legislature would have to be viewed as an attempt to influence or dictate the result of the election.  (Individual state legislators or groups of legislators remain free, of course, outside the ballot itself and outside of formal legislative actions, to endorse or lambaste particular U.S. Senate candidates.)

To the extent that Cook, building on earlier cases, draws a hard line between state legislative efforts to regulate election procedure, and attempts to influence the substantive outcomes of congressional contests, the ESEA would seem to fall on the wrong side of the line.  As such, it lies beyond Article I, Section 4 authority, which is the only source of power a state would have to adopt it.

Another Problem with the ESEA: The Thrust of the Seventeenth Amendment Itself

As if that weren't bad enough, the ESEA proposal also seems to violate another of the principles articulated by the Cook Court-the idea that state regulations of federal elections ought not "evade important constitutional restraints."  It is bad enough when a state legislature attempts to influence the substantive outcome of an election for the House of Representatives (as in Cook), but it is worse still when the legislature tries to do so with respect to U.S. Senate elections, because (moving beyond Article I, Section 4) the Seventeenth Amendment is itself an affirmative "important constitutional restraint" on state legislatures.  As I have written in a column for this site earlier this year (and in earlier columns as well), and have explained in greater detail in academic writings, the overall goal of the Seventeenth Amendment was to get state legislatures out of the business of deciding who should serve in the U.S. Senate.

The attack that Seventeenth Amendment reformers made on state legislatures was multipronged. It was not, as one of ALEC's staff has been quoted as suggesting (in The Huffington Post piece), limited to the fact that state legislatures were often deadlocked in the Nineteenth Century and thus were not filling Senate vacancies that arose.  The dissatisfaction with state legislatures was far deeper.  For starters, supporters of the Seventeenth Amendment accused legislatures of the same kind of excessive zeal and personal corruption that permeated the political party structure. As one prominent historian has put it,"[c]orruption, of both state legislators and senators, was the greatest evil blamed on the system of indirect election." Of course, whether that widely held perception of corruption in state legislatures was justified is a more complicated matter.  In any event, it is not hard to imagine ways, even today, in which permitting a state legislature to add names to a Senate ballot could open the door to partisan shenanigans.  Consider, for instance, a Democrat state legislature that added a second Republican name to a ballot that already was going to include one prominent Republican and one prominent Democrat Senate candidate (via the two major primaries), in order to split and thus weaken the Republican general election vote.  (In this regard, note that the ESEA proposal does not even require that the "State Legislature Candidate" agree to be a candidate before her name is placed on the ballot.)

Perhaps the strongest Seventeenth Amendment argument concerning distrust of state legislatures that buttresses the Article I, Section 4 textual case against substantive legislative involvement, and one that also remains relevant today, derives from the concerns Seventeenth Amendment's framers had about the way state legislatures fail to fairly represent the people of a state, and particular constituencies within the state, because of malapportionment. Although largely unnoticed in most modern discussions of direct Senate election, recognition of the "antiquated systems of representation" used to draw state legislative districts, and the resulting unfairness to, and misrepresentation of, various parts of the state peoples was clear, if not always trumpeted.  As an historian has written, such malapportioned systems, rife during the period leading up to the Seventeenth Amendment, "caused the legislatures' election of Senators to give far different results from those which would have been yielded" by truly popular elections. Of course, certain kinds of gerrymandering (designed to disfavor urban dwellers) are no longer possible in light of the one-person, one-vote cases. But concerns about partisan gerrymandering are not eliminated by the one-person, one-vote principle, as recent episodes from states like Pennsylvania and Texas illustrate.

What Should Happen if a State Were to Adopt and Try to Implement the ESEA?

It may occur to some observers that, even if my constitutional criticisms of the ESEA are powerful and persuasive, the federal courts, using the so-called "political question" doctrine, might be disinclined to intervene and declare invalid any state's enactment of the proposal.   And perhaps this is true, although lawsuits like Cook suggest that justiciability barriers in these kinds of cases can be overcome.  But even if no federal court is asked or is willing to step in, that doesn't mean that the questions I raise should go unexplored.

The Constitution makes each house, including the Senate, the "Judge of the . . . Qualifications of its own members." So if a majority of Senators believe that a state legislature has improperly influenced the substance of a Senate election by wrongly placing a candidate's name on the ballot, it could refuse to seat the "winner" of this flawed electoral contest.  And before we ever got to that point, I would hope that Congress, realizing that respect for Article I, Section 4 limits and the Seventeenth Amendment should be of interest to both parties, would pass a federal law setting aside any state's adoption of the ESEA.  Recall that Article I, Section 4 gives Congress the power to override any state regulation of the manner of congressional elections, and so to the extent that ESEA is defended as a "manner" regulation by a state legislature, Congress has the power to override it; if a state were to object to such a federal law on the ground that it exceeded Congress' Article I, Section 4 powers, the state would effectively be admitting that the ESEA itself is ultra vires. If federal courts may be reluctant to enforce the Constitution here (and I'm not saying that they necessarily would be), that doesn't mean Congress couldn't and shouldn't deal with the problem.

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

In the space below, we offer our analysis of the oral argument that was held two days ago at the U.S. Supreme Court in this Term's most important case addressing the First Amendment's Establishment Clause, Town of Greece v. Galloway. The litigation involves a decade-plus-long practice in the upstate New York Town of Greece of starting Town Board meetings with a short prayer. Before 1999, the Town (which has slightly fewer than 100,000 residents) began Board meetings with a moment of silence. But since then, the Town has been inviting local clergy to offer an opening prayer after the Pledge of Allegiance has been recited. Prayer-givers deliver their prayers over the Board's public address system, and many have asked members of the audience to bow their heads, stand, or join in the prayer during its recitation. The Town asserts that anyone-followers of any religion, agnostics, and atheists alike-can request to offer an invocation, and that it has never turned down any request. But in practice, Christian clergy have given nearly all the prayers since 1999, and they have been invited to do so by the Town, which often calls them "chaplain[s] of the month."

Some Background on the Legal Theories in Play

As we explained in an earlier column, the U.S. Court of Appeals for the Second Circuit invalidated the Town's practice, finding that the prayers, in context, were best seen as a public endorsement of Christianity, which violated the First Amendment's ban on laws respecting an establishment of religion. In our earlier writing, we agreed with the Second Circuit that the Town's practice violated equality norms that are inherent in the Establishment Clause insofar as the Town was sending messages of inclusion and exclusion. This was especially true, we noted, because the Town's policy focused on majoritarian sects-the Town drew some prayer leaders from a list of congregations printed in the Chamber of Commerce's directory-and thus effectively excluded religious adherents who live in the Town but who lack the numbers to establish a physical congregation within the community.

We also argued that, even apart from equality-based arguments, the Town's policy violated the Establishment Clause's prohibition on religious coercion. In particular, we argued that unlike prayers used to open legislative sessions at the state legislative level (one of which was upheld by the Supreme Court, largely on the basis of unbroken historical tradition, in Marsh v. Chambers), prayers that open local government meetings are very likely to pressure attendees to conform, primarily because the audience at city council meetings has a different role and purpose than the audience at sessions of the state legislature. Most of what a state legislature does involves the formulation and enactment of laws of significant breadth and scope that impact large groups and constituencies. By contrast, the work of a city council or board, in most of the towns and cities of the United States, regularly deals with decisions affecting small groups and individuals. Often town councils and boards act as administrative tribunals in a quasi-adjudicatory capacity, hearing personnel grievances or land-use appeals. Thus, these local government meetings are much more likely to be focused on particular individuals than are the general laws that state legislatures consider at their sessions. While the people who attend a session of the state legislature are passive observers of the legislature's work, the audience at a city council meeting has a much more participatory role to play. Town residents attend council meetings to speak to, influence, and petition their government before it makes decisions that may significantly impact their lives. So in the setting of a city council meeting, citizens who wish to address the council are coerced to participate in any city sponsored prayers that are offered, since a failure to stand and bow one's head or otherwise join in the prayer would risk alienating the very political decision makers whom they hope to influence.

What Did the Oral Argument Reveal?

Against this background, what do we make of the oral argument that took place earlier this week? With the caveat that it is always dicey to make firm predictions about outcomes from the tenor of an oral argument, and recognizing too, that an hour-long argument will generally contain many more important exchanges than can be summarized in a short essay like this one, we think it may be helpful to focus on five aspects of the controversy that emerged on Wednesday.

First, there seemed to be some agreement among the Justices that the Town's policy is problematic because it does not cast a broader invitation net. From the more liberal side of the Court, Justice Breyer pointed out forcefully that the Town could have done a better job of reaching out to groups that were not Christian, or not even religious at all, to let them know that they were welcome to "appear and to have either a prayer or the equivalent if they're not religious." And the more conventionally conservative Justice Alito explicitly talked about the problems of limiting invitations to congregations that are located in town (a practice we criticized in our earlier writing), instead of including minorities who live in town but who attend houses of worship outside of town.

What this broad agreement means is that the challengers to the Town's policy may well win-in the sense that the policy as it currently operates cannot continue. But the question then becomes whether the victory will be limited to the concern about outreach, or will instead be more broadly focused on the problems with having prayers in this setting more generally, even if all groups are invited to participate.

That brings us to our second point: Justice Kennedy's likely take on the case. To win big-that is, to strike down or limit city council prayers in any significant way-the challengers will likely have to win over Justice Kennedy, the swing vote in this area of constitutional law. How will Justice Kennedy see things? It's hard to say, but interestingly enough, Justice Kennedy might have an easier time invalidating all prayers before city council meetings than he would invalidating "sectarian" prayers but leaving room for non-sectarian ones to continue, the latter position being the one advanced by the challengers and presented to the Court by the eminent law professor Douglas Laycock.

The position Professor Laycock asserted-which, again, would allow non-sectarian prayers but forbid sectarian ones-would seem to represent something of a middle ground, an option that might be thought to appeal to the "center" of the Court. And Professor Laycock pointed out that there is a long tradition of the use of inclusive, non-sectarian prayers in public settings. He observed that early prayers in American public arenas, while undeniably Christian, were not denominationally divisive because America was then a homogeneously Protestant nation. He mentioned, as well, that thirty-seven State legislatures and the U.S. House of Representatives give guidelines to clergy giving prayers in those chambers. And he reminded the Court that, in cases like this one involving local government, the U.S Court of Appeals for the Fourth Circuit has utilized a prohibition on sectarian prayers only that seems to be working out reasonably well.

While these arguments have substantial force, they may not persuade a sufficient number of, or the right individual, Justices. In particular, Justice Kennedy seems to be very resistant to having government engage in any oversight concerning the content of prayers. As Justice Kennedy put it, a line between sectarian and non-sectarian prayers "involves the State very heavily in the censorship and the approval or disapproval of prayers," and would "involve[] the government very heavily in religion." If Justice Kennedy does not believe that the Establishment Clause can require government to control the content of state-sponsored prayers in any way, however, and that no such line is workable, then Justice Kennedy will be forced to support either banning all prayers in this context, or allowing a free-for-all in which even aggressive proselytizing prayers that demand active participation and validation by audience members would have to be permitted. It appears from Justice Kennedy's questions that he would be more comfortable choosing one of these stark choices than accepting a distinction between sectarian and non-sectarian prayers.

In addition to the practical problem of Justice Kennedy's ostensible opposition to this argument, the sectarian/non-sectarian line has another flaw: It addresses equality-based concerns, but not really coercion-based concerns. Even if most religious groups would accept the generic content of nonsectarian prayers, those individuals who cannot participate in, or attend, such prayers as a matter of conscience are still pressured into conforming by the risk that their non-participation/absence will alienate the very decision makers they are trying to persuade.

A third point involves not the substance, but the timing, of the prayer that is offered. Justice Alito asked Professor Laycock why the separation in time between the opening prayer and the city government's active consideration of specific items before it does not diminish any coercive effect the prayer might have: Audience members who are made uncomfortable by the prayer can simply wait outside and then enter later in the town session when their business items are transacted. Justice Alito's question presupposes that the only part of the meeting where audience members would need to participate involves the board or council's hearing formal proposals or grievances-essentially when the board is acting as an administrative body or in a quasi-adjudicatory capacity.

But Professor Laycock effectively explained that he is also concerned about an earlier part of the public meeting agenda that is quite close in time to the prayers-what we would call the public-comment component, during which the council might consider whether legislative fixes to problems that are identified are needed. As Professor Laycock explained, people raise very personal issues during public comment; even allegedly legislative decisions often involve disputes between very small constituencies, or impact so few individuals that the distinction between legislative and administrative functions has limited meaning or utility in this local government context.

The fourth point we want to mention deals with neither the substance of the prayer nor its timing, but rather the persons to whom the prayer can be attributed. Justice Scalia made the argument that the Board members are citizens, and as citizens they should be able to invoke the deity before beginning serious governmental tasks. What he was suggesting, in other words, is that what looks like a public prayer might be better understood as a private prayer of persons who happen to be convening a public meeting. The problem with this characterization, of course, is that the Board members act in their official-not private-capacity when they invite people to offer prayers at official meetings where government business is being transacted. Consider an analogy: Would we ever think of saying that because Board members are citizens, and because citizens can hold political rallies and raise money, Board members can hold a political rally to raise money for their campaigns at the beginning of Board meetings?

Fifth, and finally, consider an observation that Justice Kagan made about the goal of the religion clauses of the First Amendment being to allow people in this country of different faiths to live harmoniously together. In particular, Justice Kagan worried aloud that when the Court lays down rules enforcing the Establishment Clause, people might see the Court as hostile to religion and get angry as a result. And this runs counter to the constitutional objective of having people live together in a religiously peaceful and harmonious way.

We understand Justice Kagan's concern, but we think there are powerful responses to it. For starters, protecting minority liberty and equality rights often risks an angry reaction from the majority. And protecting minority rights is frequently challenged as disturbing the harmony of the community. But harmony that exists on a foundation of hierarchy and coercion is not true harmony; minority silence in the face of discrimination and burdens on liberty should not be misconstrued as peace, so much as seen as an enforced and temporary cease-fire.

Moreover, if it is legitimate for the Court to take into account how its decisions are processed by the citizenry, the great majority of whom value religion, the way for the Court to avoid being misunderstood as being hostile to religion would not be to undercut the anti-coercion, pro-equality values of the Establishment Clause, but rather to more rigorously protect meaningful Free Exercise rights. If Free Exercise rights were taken seriously, it would be more difficult for the Court to be criticized as anti-religious.

Lastly, if the Court ignores the liberty and equality interests of religious minorities in the name of achieving harmony, it sends an unmistakable message to religious minorities: You cannot rely on the Constitution to protect your liberty and equality interests, and the only way to protect yourself against discrimination and coercion is to live in communities where there are a sufficiently large number of people who adhere to your faith so that you can protect yourselves politically. Such a message would create a "harmony" only by virtue of a religiously fragmented and balkanized society where people of different faiths do not live together in religiously integrated communities. By contrast, we feel that what enables people of different faiths and no faith to all live together in meaningful harmony is the knowledge that the Constitution requires government to recognize that everyone, regardless of their beliefs, is of equal worth and must be treated with equal respect.

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

In the space below, we analyze an important and interesting decision, Demers v. Austin, involving the First Amendment academic-freedom rights of public school and university faculty members that was handed down last week by the United States Court of Appeals for the Ninth Circuit.  We are quite sympathetic to the thrust of the Ninth Circuit ruling, but we think that a more concrete and categorical framework for resolving academic freedom disputes needs to be fashioned, lest public schools and their faculties be embroiled in a great deal of time- and money-consuming litigation that will generate inconsistent and unpredictable results.

Some Background on the Demers Case

As is relevant here, the facts of the Demers case are pretty straightforward.  David Demers is a tenured member of the faculty at the Edward R. Murrow College of Communication at Washington State University, a large, public, research-oriented university located in Pullman, Washington.  While serving on a university committee charged with exploring possible changes to the way in which the Murrow College was organized and the way it should relate to other units of the University, Demers wrote and distributed a document called "The Plan."  The Plan was Demers's two-page blueprint for dealing with some of these issues of organizational structure and funding (and some other matters too).  Demers did not distribute The Plan to other members of the committee on which he served, but he did send The Plan to high-level administrators at Washington State, as well as to members of the media and others.  After suffering what he claimed were adverse employment actions, Demers brought suit against various members of the Washington State administrative hierarchy alleging that they had retaliated against him, in violation of his First Amendment rights, for distributing The Plan and the ideas contained in it.

The defendants denied that any action they ever took against Demers was in retaliation for his having distributed The Plan. They also argued that, in any event, The Plan was not protected speech under Supreme Court doctrine because it was written and circulated "pursuant to Demers's official duties."  The trial court ruled in the University's favor. On appeal, the Ninth Circuit reversed the trial court's decision, at least in part.

The Ninth Circuit's Decision That Garcetti Does Not Apply

The three Judges on the Ninth Circuit panel agreed with the University that "The Plan" was undertaken pursuant to Demers's official duties (even though he tried to characterize it as something he wrote and circulated in his private-person capacity) because it addressed much of the subject matter of the University committee on which he served, and because he sent it to, among others, University administrators who might have been able to act on it.  But the Ninth Circuit then definitively held that not all things that a public school academic employee writes and distributes in connection with his official duties are without First Amendment protection. In particular, the Ninth Circuit ruled that the complete-deference-to-the-government standard of Garcetti v. Ceballos-a 2006 United States Supreme Court decision-does not apply in the setting of public employees who are teachers and scholars.

Garcetti involved a memorandum written and publicly disseminated by a deputy district attorney alleging that a police search warrant affidavit contained problematic falsehoods and misrepresentations.  When higher-ups in the DA's office seemed to punish him for blowing the whistle in this way, he filed suit contending that he had been the victim of retaliation for his comments, in violation of the First Amendment.  The Supreme Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

The Ninth Circuit in Demers held, building on language in some of the opinions in Garcetti and other cases discussing "academic freedom," that the Garcetti framework does not apply to "speech related to scholarship or teaching."  Instead, according to the panel, teaching and academic writing that are performed pursuant to the official duties of a teacher and professor should be governed by the two-part balancing test laid out by the Supreme Court in the pre-Garcetti case of Pickering v. Board of Education.  Under that test, the employee must show first that his or her speech addressed matters of public concern.  If this requirement is satisfied, then the employee's speech is protected from punishment if the employee's interest "in commenting outweighs the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."

Our Evaluation of the Ninth Circuit's Course of Action

We well understand why the Ninth Circuit decided not to apply the Garcetti approach to the university-professor setting across the board.  But we are troubled by the indeterminate, ad-hoc character of the Pickering balancing test, and we think that more categorical boundaries need to be identified in order to provide an appropriate structure for the litigation between schools and their academic employees that will likely ensue once Garcetti is found not to govern these disputes.

Let us begin by explaining why we think there is a strong case to be made that university professors deserve First Amendment protection for at least some of what they say and do, even when they do it on the government's dime and pursuant to their public-employment duties. It is always dangerous to identify certain classes of public employees who should enjoy more free speech rights than others, but we think that a distinctive protection for professors can be derived from a functional analysis of the jobs that universities are supposed to play in modern society.  We focus on two functions, in particular:

First, many universities play a unique role in our society in pressing beyond accepted wisdom to critique and expand our knowledge of the world.  Universities are committed to certain methodological principles, but so long as research is done within that methodological framework-which requires, among other things, comparison of theory to empirically verifiable phenomenon, rigorous logic, and the careful separation of premises from conclusions and correlations from causes, and attention and responses to counterarguments that have been made or are likely to be made against any particular thesis-universities are committed to going wherever the search for truth leads.

Second, universities serve as an independent source of values and authority and as such they operate as a check on government power-a function that is comparable to the ways in which the press or organized religion can serve as a check on government abuses or mistakes. University academics have blown the whistle on many instances of government error or overreach.  The difficulty with applying this argument to public universities, however, is that we would be asking the government to fund a check on its own authority. But the idea is not implausible. The basic notion is, after all, intrinsic to all the separation of powers; the legislature funds the courts, for example, which themselves serve as a check on legislative authority.

For these reasons (which largely explain some of the stray Supreme Court language, extolling the virtues of academic freedom, on which the Ninth Circuit relied in rejecting the applicability of Garcetti), we see potential room to carve out special protections for academic speech. But if a functional analysis helps make the case for special protections for university scholars, it also substantially undercuts the claim for academic freedom by elementary- and high-school teachers (which the Ninth Circuit also recognized albeit in dicta.)  Elementary and middle schools, of course, serve different purposes than universities.   The range of stakeholders is broader. More importantly, public-school education involves a mixture of values and cultural inculcation-that is, teaching children what society wants and needs them to accept-as well as the development in students of intellectual maturity, independence, and the ability to think for themselves.  And there is no consensus (the way that there might be a consensus on the purposes of research universities) on how that mix should work. As a result, there is a much shakier foundation for judicial review. And simply substituting judges' opinions on pedagogical issues for those of school boards or administrators seems troubling in principle and chaotic in practice.

Relatedly, elementary- and high-school teachers are not in the business of generating new knowledge; it's not part of their function. As a result, there is no functional need to promote free inquiry in the performance of their jobs. In a similar vein, high schools are not intended to serve as sources of values that serve a checking function on government.  And finally, operating the public schools is a traditional local governmental function. Community interests, values, and needs may differ by location. Democracy is responsive to local differences and concerns. First Amendment doctrine might have the tendency to universalize, homogenize, and nationalize public-school curricula and pedagogical decisions.

Because universities are so different from elementary and high schools in this regard, we think that the Ninth Circuit should probably have limited its holding concerning Garcetti's applicability (or non-applicability) to the research-university setting.  Even though the Ninth Circuit observed that the Pickering test must be attentive to context, we can foresee much mischief if an ad-hoc balancing test like Pickering's leads to a flood of lawsuits brought by elementary-school and high-school teachers who object to the pedagogical decisions made by principals and local school boards on first amendment grounds.

And even within the realm of the university, we wonder whether the Pickering formula is too open-ended, and likely to produce costly litigation that is so fact-specific that it cannot be resolved short of full-blown and time-consuming trials.  The Ninth Circuit does say that some deference to universities is owed in some settings, but not all lower courts will be clear about how much deference to afford, and free-speech review involving tests that demand indeterminate balancing may be an invitation to constitutional litigation by every scholar who disagrees with the evaluation of his or her teaching or scholarship.

A more categorical approach is greatly preferable. Various substantive decisions, as long as they are clearly communicated to the faculty so as to avoid any notice/due process problems, should be beyond the scope of constitutional review. (State legislatures or public universities may elect to subject these decisions to judicial review, but the Constitution does not require that they do so. That way, if review becomes problematic and unreasonably costly, it can be modified without changing constitutional doctrine.)

For example, universities should be free to determine their curricula, and also be free to prescribe precisely what particular classes should cover. Professors can be required to teach assigned classes, notwithstanding their subject-matter preferences. Universities can determine classroom hours, etc. If an economics professor decides instead to write literary criticism, the department can reject his work as unacceptable within the discipline in which he was hired to teach. The Supreme Court case of Arkansas Public Television Comm. v. Forbes suggests that judicial review under the free speech clause is inappropriate when government engages in functions that require the exercise of substantial editorial discretion.

Clearly, that reasoning applies to many content-neutral and content-discriminatory university decisions. And even a fair bit of viewpoint discrimination may be permissible. For example, to our minds it does not necessarily violate the First Amendment for a university to require balanced teaching on controversial subjects in the classroom, even if a professor would have a preference to be more polemical.

In the space of this essay, we cannot, of course, construct all the categories we think should be identified to guide and reform otherwise standardless judicial balancing, but we hope that Demers is the first step in the direction of that enterprise by lower courts.

Cross-posted from Justia's Verdict.

In the same-sex marriage cases that were heard and decided by the U.S. Supreme Court earlier this summer, gay/lesbian rights advocates urged the Justices to declare broadly that laws that discriminate against persons based on sexual orientation should be considered constitutionally suspect, and thus should trigger "heightened judicial scrutiny."  That is another way of saying that any such law should be struck down by a court unless the government can prove, by convincing evidence, that the law really does accomplish important governmental objectives, and is not simply based on prejudice or outmoded stereotypes.  Under a "heightened scrutiny" test, federal and state bans on same-sex marriage would be very unlikely to survive.

The Supreme Court avoided answering this question of which "level of scrutiny" should apply to laws that differentiate among people on the basis of sexual orientation; indeed, if the Court had not avoided this question, it could not have effectively dodged the question it did not want to answer: whether all states have to recognize same-sex marriage.  But the Court's failure to address the "level of scrutiny" issue leaves unresolved questions regarding the legal treatment of sexual-orientation discrimination in other important settings besides marriage.  One such setting is raised by an interesting and important case, Smithkline Beecham Corp. v. Abbott Laboratories, which is being argued next month in the United States Court of Appeals for the Ninth Circuit.  At issue in Smithkline Beecham is whether it is constitutionally permissible for a lawyer to "strike" (remove) would-be jurors from a case because of their sexual orientation.  In this antitrust lawsuit involving HIV medications, an attorney for one of the companies exercised a so-called "peremptory strike" (also known as a "peremptory challenge")-effectively removing a possible juror from inclusion in the jury-because the would-be juror was "or appears to be, could be, homosexual."  Peremptory challenges allow each side of a case to strike (remove) a certain number (with the number being equal for both sides) of would-be jurors for no supportable reason, but instead because of hunches or intuitions held by the lawyers about how sympathetic particular persons would be as jurors.

Background on the Theory and Practice of Peremptory Challenges

Peremptory challenges have been around in American jurisdictions for a long time.  They are distinguishable from so called "strikes for cause," a term used to describe the right each lawyer has to remove from the jury pool all persons who are shown to be actually incapable of rendering an impartial decision.  Some analysts think that if lawyers ask (as they may need to ask) tough questions to would-be jurors to determine whether particular individuals should be removed for cause, peremptory challenges are needed to remove those would-be jurors who might have been put off or offended by the tough questioning.  And some people (though not I) think that peremptory challenges enhance the legitimacy of the judicial system, insofar as the parties may more readily accept a decision that is reached by a decision-making body that they themselves helped shape. But the Supreme Court has repeatedly made clear that no constitutional right to peremptories exists; and some states have severely curtailed their use in state courts.

Moreover, while the essence of peremptories is that they needn't be based on any good reasons, the Supreme Court has held that they cannot be based on some bad reasons-most particularly, race and gender.  So whenever it is shown that a lawyer exercised a peremptory strike because of a would-be juror's race or sex, the Fourteenth Amendment's guarantee of equal protection of the laws is said to be violated.  (One might ask why the Equal Protection Clause governs private lawyers exercising peremptories in lawsuits between private parties.  The answer is that because trials are quintessentially governmental operations, and because it is technically the judge who dismisses a would-be juror from the pool-albeit at the behest of the lawyer exercising the strike-the Constitution's equality norms apply here.)  But the Supreme Court and lower federal courts have been reluctant to add other criteria, beyond race and sex, that are constitutionally impermissible bases for the use of peremptories (although one famous line of Supreme Court cases frowns on eliminating jurors because of wealth.)  In the Smithkine case, the Ninth Circuit will have to decide whether to add sexual orientation to the list of improper criteria.

An Understandable Concern About Slippery Slopes, and One Answer:  Eliminate Peremptories Altogether

The judicial reluctance to expand the list of bases on which peremptories may not be premised stems in part from a concern over slippery slopes.  As one lower court observed when confronted with the question whether age should be a constitutionally impermissible ground for peremptories:  "if the age classification is adopted, surely blue-collar workers, yuppies, Rotarians, Eagle Scouts, and an endless variety of other classifications will be entitled to similar treatment. These are not the groups that the court has traditionally sought to protect from under-representation on jury venires."

So the slippery slope problems here are real.  Over the past few decades, a handful of the Justices who have served on the Court, perhaps most notably Justice Breyer, have 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.  One reason for Justice Breyer's skepticism about peremptories is the difficulty of proving an improper motive on the part of lawyers.  Because peremptories are supposed to be usable based on irrational hunches, lawyers can give bizarre reasons to explain their use of peremptories and still must be believed, even if race or sex was, in fact, the actual motivation behind the peremptory strikes.  So eliminating race- or gender-based peremptories may, in the real world, require eliminating all peremptories.  (The Smithkline case illustrates this; it is remarkable that the case has made it this far, because the lawyer exercising the peremptory based on sexual orientation could likely have explained the peremptory on other, idiosyncratic grounds and been believed.)

The Link Between Jury Service and Voting

Another reason for being constitutionally skeptical about peremptories is that jury service has traditionally been tied, and analogized, to voting.  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.  And throughout American constitutional history, voting and jury service have been considered "political rights" governed not so much by the Fourteenth Amendment, but more directly by 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 cases dating back to the 1960s) to prevent any would-be voter from participating in any particular election unless there were a compelling justification for doing so.

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) should also be protected from discrimination in jury service.  So far, the Supreme Court has embraced protection for the first three kinds of groups (defined by race, gender and wealth) and has not ruled on the fourth (defined by age.)

The Role of Equal Protection Doctrine

Yet another set of stopping points down a slippery slope comes not from the voting rights amendments (the 15^th, 19^th, 24^th and 26^th), but from equal protection doctrine.  The idea here would be that those groups of people who are generally protected from discrimination under the equal protection clause (groups defined by race, gender, marital status of parents, perhaps religion, etc.) should also be protected in the peremptory challenge setting.  That is why the Supreme Court's failure to make clear the standard of review it was applying in United States v. Windsor (the case from June striking down part of the Defense of Marriage Act, or DOMA) becomes important here.

The oral argument in Smithkline should be interesting.  The panel of Judges Schroeder, Reinhardt and Berzon is, even more so than the three-judge panel in the Proposition 8 case, liberal by Ninth Circuit standards.  If one had to bet, one might expect this panel to frown on the use of sexual orientation as a basis for peremptories.  And if the Ninth Circuit does invalidate sexual-orientation-based peremptories, then the Supreme Court may end up being interested in the case, and could render a ruling that would, directly or indirectly, bear on the question of same-sex marriage bans too.  A lot to keep watch on in the coming months.

Part Two 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.

In the space below, I continue to analyze what will-and what should-happen to California's voter-adopted ban on same-sex marriage, Proposition 8, in the wake of the U.S. Supreme Court's ruling earlier this summer in Hollingsworth v. Perry.  Two weeks ago, in Part One of this two-part series, I argued that the request made on July 11 by the proponents of Proposition 8 to get the California Supreme Court to order County Clerks to stop granting same-sex marriage licenses-Clerks have been issuing same-sex licenses for about a month-was unlikely to be successful.  Today, after elaborating a bit more on this post-Perry litigation, I move beyond the judicial arena to the ballot box, where I think repeal of Proposition 8 by the California electorate is feasible.

A Recent Development:  The San Diego County Clerk Asks the California Supreme Court to Weigh In

Shortly after my last column was posted, the County Clerk for San Diego County filed a separate request in the California Supreme Court asking for an order declaring that Proposition 8 should continue to be enforced by County Clerks, and preventing the Governor, the Attorney General, and the State Registrar from trying to force the San Diego Clerk to issue same-sex marriage licenses.  The San Diego Clerk's arguments echoed those made to the California Supreme Court by the initiative's proponents themselves the week before.  As it did with the proponents' request, the court refused to grant the San Diego Clerk an immediate block on same-sex marriage license issuance, but set a briefing schedule so that the court could decide whether to fully address the merits of the dispute in the coming month(s).

I don't expect the California Justices to accept the San Diego County Clerk's invitation to wade into this dispute in depth, for many of the same reasons that I discussed in Part One in connection with the proponents' request:  (1) The California Supreme Court's review is discretionary; (2) The case turns largely on the best way to interpret a federal district court order, and state courts will usually refrain from getting into contested interpretations of federal court orders; (3) The federal court order, by its straightforward terms, applies broadly to the County Clerks in Los Angeles and Alameda, so that unless those two individuals challenge the federal court order, same-sex marriage licenses will continue to issue from those Counties (and thus in the State) in any event; and (4)  Even if the state law questions-about the independence of County Clerks from the Governor or State Registrar and the obligation to continue to enforce laws that have not yet been invalidated by appellate courts-are interesting and important, there will be better cases down the road in which to reach those issues.

And here's an additional reason why the San Diego Clerk's request will likely be rejected by the California Supremes:  unlike the Proposition 8 proponents, the San Diego Clerk (who is arguably subject to the federal court order) might have standing in federal court to seek a ruling-from that court itself-that he is not covered by the federal order and will not be held in federal contempt if he refuses to issue same-sex marriage licenses.  A federal court faced with such a such a case might, at that point, try to enlist the help of the California Supreme Court to answer the question whether County Clerks are subject to the "control or supervision" (the term used in the federal court order) of state-level officials.  But the California Supreme Court would seem well-advised to wait for such a request (if one ever materialized) before opining on these matters.

Moving from the Courtroom to the Ballot Box:  Repeal of a Measure No Longer Supported by the People

Based on the analysis offered above, I don't expect the issuance of same-sex marriage licenses in California to stop anytime soon.  And so, for practical purposes at least, California's ban on same-sex marriage will become a dead letter.  Is that where the Proposition 8 political-legal opera should end?  To my mind, the answer is no; I think Proposition 8's true final Act should be repeal at the ballot box.

If Proposition 8 is not, in practice, limiting gay marriage, why would repeal be necessary or helpful?  For starters, we must remember that a judicial invalidation of a law and an injunction against its enforcement aren't the same as getting rid of the law; the measure remains on the books, and conceivably could spring back to life if a different Governor or Attorney General tried to reopen the case and undo the federal court injunction by defending Proposition 8 on the merits (something Governors Schwarzenegger and Brown, and Attorneys General Brown and Harris, never did.)  Cases (like Perry) that were never actually contested on the merits between the appropriate plaintiffs and defendants are-because of the absence of a true adversarial clash in the courtroom resulting in a judgment-strong candidates for reopening, should a particular Governor or Attorney General want to do so.

But, someone might respond, the political climate in California is moving in the opposite direction-in favor of, not against, same-sex marriage.  So the likelihood of a new Governor or Attorney General trying to resurrect Proposition 8-especially after hundreds of thousands of same-sex couples in the state already get married-is very slim.  I think that's probably true.  But remember that Governors and Attorney Generals get elected based on many issues, and they may win office in spite of, rather than because of, their position on any one subject.  Moreover, after they assume office, they sometimes take actions that seem to go against the views of a majority of voters, as Schwarzenegger and Brown themselves did when they refused to defend Proposition 8 when the Perry lawsuit was filed in 2009, a time when the state's electorate may very well still have favored the measure.

But all that brings me to the second, and more important, reason to repeal Proposition 8:  It no longer reflects the views of Californians, and state law on fundamental questions like this ought to accord with the true beliefs of state voters.  Proposition 8 passed in 2008 by a 52-48 margin, and a recent LATimes opinion poll suggests that a similar measure today would be supported by only 38% of voters, with 56% favoring same-sex marriage equality-a huge change in just five years.  But the only poll with true credibility is the one at the ballot box itself, and so Californians should revisit Proposition 8 in an election the next year or so.

And having California's laws line up with California's values will matter to people outside California as well.  As is now clear, after the Supreme Court's actions earlier this summer, the struggle over same-sex marriage rights in the United States continues to be waged in many, if not most, of the 35 or so states that do not allow same-sex marriage.  Having California in the "yes" column on same-sex marriage as a result of an election, rather than as the product of the actions of a small number of persons (a Governor and Attorney General who declined to defend, and an unelected District Court judge who issued an injunction), is important for political purposes in other states and, ultimately, for constitutional purposes when the U.S. Supreme Court returns to same-sex marriage rights-as it will almost certainly have to-in the coming years.  In Perry and United States v. Windsor (the case involving the federal Defense of Marriage Act, also known as DOMA) a month ago, the Court was able to avoid the question whether there is a national constitutional right to same-sex marriage, but it will have to answer that question directly in the next decade or so.  And there is broad agreement that the Court is keenly aware of national consensuses and national trends when it decides the content and scope of national constitutional rights (whether or not such awareness ought to be relevant).  Having California (which alone houses about 12% of all Americans) join the ranks of the same-sex marriage states through an affirmative act of its electorate will maximize its clout in these national processes.

The Logistics of Repeal:  Getting a Repeal Measure on the Ballot

Many measures that (like a repeal of Proposition 8) stand a good chance of success before the voters are nonetheless never acted upon because of the cost (often about a few million dollars) and headache of gathering the signatures required to qualify an initiative for California's statewide ballot.  But signature-gathering isn't the only way to get a measure on the ballot in California; if 2/3 of each house of the state legislature votes to put a constitutional amendment on the ballot, the amendment is offered to the electorate.  For decades this route has seemed an unlikely one, because major ballot measures are often very polarizing along party lines, and neither political party has controlled 2/3 of each house of the legislature.  But today (and barring any very unusual events, for the next year at least) Democrats can be assured of occupying 2/3 of the seats of the California Assembly and Senate.  And there may very well be a number of Republican legislators who think that California voters should be given the chance to weigh in again on same-sex marriage, since the landscape has changed so much over the last half-decade.  So there seems to be a window for the California legislature to act, to let California voters speak once again on this most important of questions.  And even though some significant money may have to be spent in the ad campaign to get such a repeal enacted, I would expect-given the salience of this topic in California over the last few years and the movement reflected in recent opinion polls-the amount of money need not be that great, and in any event would be well-spent, given the alternative: months and perhaps years of technical wrangling in the state and federal courts, leading to an outcome that cannot easily to be said to derive from the California people themselves.