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Archive for the ‘Law’ Category

Three-judge panels of two federal courts of appeals today issued directly conflicting rulings on a key IRS regulation implementing the Affordable Care Act. This regulation authorized subsidies for those purchasing insurance from government exchanges, regardless of whether those exchanges were established by the federal government (as in most states) or by an individual state. If this regulation is invalid and subsidies are therefore not available on exchanges established by the federal government, then one leg of the government’s three-legged stool in the Affordable Care Act is removed in more than half the states in the country.

In Halbig v. Burwell, a split panel of the D.C. Circuit held the regulation invalid. Shortly thereafter, the Fourth Circuit issued a directly contrary decision in King v. Burwell, upholding the IRS regulation. Most news coverage thus far has focused on the D.C. Circuit’s decision. There may be a few reasons for this: (1) lots of policy journalists in D.C.; (2) the D.C. decision came first; and (3) the D.C. decision would alter the status quo significantly, while the Fourth Circuit decision would maintain the status quo.

The Fourth Circuit decision is important as well, though less for what it holds than for how its upholding of the regulation might actually benefit the challengers who lost the panel decision. In short, the Fourth Circuit’s decision may speed up the timing of Supreme Court review of this issue. Here’s why: En banc review would probably be favorable for the government in both courts. This means it is likely that the government will seek en banc review in the D.C. Circuit case. The decision to grant en banc review by itself would vacate the panel decision, thus eliminating the existing circuit split, at least for the time being. And if the en banc D.C. Circuit were to rule differently from today’s three-judge panel, then there would not be a circuit split with the Fourth going forward. In the absence of the Fourth Circuit decision, then, it would take a while before the Supreme Court takes a case raising this issue, and the Court might never grant if there is no split. But because the en banc Fourth Circuit is likely favorable for the government, the plaintiffs in that case are likely to bypass en banc review and head straight to the Supreme Court. The Court has discretion whether to grant certiorari, of course, but a circuit split on such an important part of a massive regulatory scheme is the sort of thing that the Supreme Court should hear. Having a final decision in favor of the government therefore is of some help to the challengers because it enables them to go to the Supreme Court more quickly.

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This is the time of the law school semester when law students confront sometimes fanciful hypotheticals on final examinations. For various reasons, I’ve already told my (mostly) first-year students in Constitutional Law that I will not be giving them an essay question on Section 5 of the Fourteenth Amendment. But in thinking about the constitutionality of state-law marriage definitions that require a man and a woman for civil marriage, I came up with a question about a hypothetical piece of legislation that seems like it could fit on a final examination this year. Since I won’t be putting it on an examination, I thought I’d post it and see if readers have analyses that they would like to share, whether on another blog or in the comments here.

Suppose that Congress passes and President Obama signs new federal legislation, The Defense of Marriage Equality Act (“DOMEA”). The operative provisions of DOMEA state: “(1) No state shall deny civil marriage to any person because he or she has chosen to marry a person of the same sex. (2) No state shall refuse to recognize a civil marriage that was performed in another state, and remains valid in the state of celebration, on the ground that the married couple are persons of the same sex.”

Congress’s premise in passing DOMEA is that federal legislation is needed to enforce the Fourteenth Amendment’s Due Process Clause, which protects the right to marry for all people, and the Fourteenth Amendment’s Equal Protection Clause, which prohibits classifications that burden fundamental rights and that discriminate against disfavored classes. A “Findings” section of DOMEA states, among other things, “Congress finds that state laws that limit marriage to one man and one woman violate the Fourteenth Amendment because such laws deny gays and lesbians the constitutionally protected right to marry the partner of their choosing.” This congressional finding is based on the Supreme Court’s decisions in Windsor, Lawrence, and Romer, as well as the string of post-Windsor lower-court decisions that have (thus far unanimously) held opposite-sex-only marriage definitions unconstitutional under the Fourteenth Amendment.

Does Congress have authority under Section 5 of the Fourteenth Amendment to enact DOMEA? Provide a brief analysis setting forth the strongest arguments and counter-arguments in support of your conclusion.

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Over at The  Volokh Conspiracy, Nick Rosenkranz has a post titled “James Madison Anticipates the Possibility of Government Shutdown–and Predicts that the House of Representatives Can and Should Prevail.” The post consists of an extended quotation from Federalist No. 58 that Rosenkranz interprets as predicting that the House of Representatives “can and should prevail” in a battle of wills over their exercise of the power of the purse.

Rosenkranz’s post brings to mind an early episode in our nation’s history in which the House sought to use its appropriations authority to block “the law of the land” from taking effect: the fight over appropriations to implement the vastly unpopular Jay Treaty. The short of it is that Madison, in the House, lost. But the short version leaves much out (and the circumstances of that showdown are different from present circumstances in some obvious ways, of course). For some primary sources on the debate over the Jay Treaty, see the relevant portion of the collection edited by Lance Banning, available at The Online Library of Liberty: Liberty and Order the First American Party Struggle.

Of potential interest to students of federal judicial power, in The Supreme Court in the Early Republic, William Casto describes a nine-page opinion letter about the legal issues raised by the House’s opposition that was authored by Chief Justice Oliver Ellsworth as a type of advisory opinion:

Almost as soon as Ellsworth took his oath as Chief Justice, he–like Chief Justices Jay and Rutledge before him–became entangled in a political facet of Jay’s treaty. The Senate had consented to the Treaty, but it could not be implemented without an appropriate of funds, and this technicality gave its opponents one last chance to defeat it. The Republican leaders in the House maintained that they had the right to judge the wisdom of the Treaty and to refuse to appropriate the necessary funds if they deemed it unacceptable. To assist the House in its consideration, Congressman Edward Livingston of New York called for the President to provide copies of all papers relevant to the Treaty’s negotiation.

Five days after Ellsworth became Chief Justice, he wrote an extensive advisory opinion on these developments. Although the opinion is in the form of a nine-page letter to Senator Jonathan Trumbull of Connecticut, it wound up in George Washington’s files docketed under the subject “treaty making power.” Whether Ellsworth wrote the letter in response to an indirect request from the President is not known, but the Chief Justice clearly intended his letter to be a formal legal opinion. His basic analysis was that, under the Constitution, the treaty-making power is vested solely in the President and the Senate. Once a treaty was approved by the Senate and ratified by the President, it became a “law of the land” binding upon the House. The fact that the Treaty coincidentally required an appropriation to carry it into effect was “an accidental circumstance [that did] not give the house any more right to examine the expediency of the Treaty, or control its operation, than they would have without this circumstance.” The House was therefore bound to appropriate the funds “as it is to appropriate for the President’s salary, or that of the Judges.” The President subsequently refused to provide the requested papers, and the Federalists in Congress mustered barely enough votes to appropriate the funds necessary to implement the Treaty.

[Casto at 97-98]

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Earlier this year, the editors of the Harvard Law Review added a gender component to the journal’s affirmative action policy. The Harvard Crimson headline is “Numbers of Female Harvard Law Review Editors Nearly Doubled in First Gender-Based Affirmative Action Cycle.” But as the story accurately notes, “it is unclear whether the increase in female editors is due to the new affirmative action policy or if more women were selected by chance using the gender-blind process.” And the law review’s President “declined to comment on whether the shift in the admissions process was a success.”

The current President’s refusal to comment is a fitting bookend to that editor’s comment on the new policy as then-incoming President: “It’s too soon to tell what impact the policy will have.” The curious lack of critical curiosity or even comment about how the policy would likely function or is functioning is a consequence of a deliberate insulation from knowledge of effects that has been built into the system itself. And until the law review’s policies provide for some sort of oversight into how the “discretionary committee” that implements the journal’s affirmative action “policies,” it appears that nobody will know how they are working or whether they are needed (putting aside for a moment the difficulty with defining “need” in this context). As I wrote when HLR added gender to its affirmative action “policy”, the existing policies appear designed to create a black box for the accomplishment of undefined mushy quotas:

I was a member of the discretionary committee for Volume 115. Our direction was just to take the various factors into account and then exercise our discretion. That is it. There were some very easy calls, such as applicants who missed the cut-off by a hair’s breadth mathematically. But there was no guidance at all for the tougher calls. The “policy” was nothing more than a list of factors.

At least as of Volume 115, the only people who knew what role various factors played in membership decisions for any given year were the members of that year’s discretionary committee (and even they did not know the identities of individuals selected through that process because everything was done through an anonymous numbering system). As far as the rest of the review was concerned, the committee was a black-box mechanism whose only inputs were a small number of editors and a list of factors for them to “consider” in some unspecified way. The trade-offs made each year were unknown, even to the incoming members of the discretionary committee.  If that structure remains the same, then there is no way to track what effect the existing affirmative action policies are having. And if there is no way to track that, there is no way to know what effect a change to the policies would have. Nor is there any way to know when the policies should end.

The Crimson quotes the incoming HLR President as saying that “it’s too soon to tell what impact the policy will have.” Unless the law review has some mechanism in place to provide accountability for how the discretionary committee exercises its discretion, however, the passage of time will not reveal too much about the effect of the policy. It’s a safe prediction that the number of female editors will drift upward and that some kind of mushy quota will result. But nobody will know what trade-offs the discretionary committee is making with the discretion it is charged with exercising. [emphasis added 10/9/13] That is why I fear the editors do not know what “policy” they are adopting in adding gender to the discretionary committee’s list of factors to consider.

(Note: To repeat something mentioned in my earlier comment on this process, I welcome “factual corrections about the nature of the policies now in effect. In particular, if there is some kind of assessment or accountability mechanism in place, I would love to hear about it.”)

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A few posts over at The Volokh Conspiracy at the end of last week raised some good questions about the basis for, and going-forward import of, the Supreme Court’s invalidation of DOMA in United States v. Windsor. In two posts (so far), Neomi Rao has probed the Windsor majority opinion’s use of “dignity,” while Dale Carpenter has provided a different take on the basis for Windsor. And Will Baude has written a post analyzing Friday’s New Jersey trial court ruling that New Jersey must extend the designation of “marriage” to its civil unions (which in New Jersey provide the same legal benefits under New Jersey law as marriage). These posts highlight the confusion that Windsor has spawned by its lack of a clear legal basis. (But see Ernest A. Young, United States v. Windsor and the Role of State Law in Defining Rights Claims, 99 Va. L. Rev. Online 39, 40 (2013) (“[T]he trouble with Windsor is not that the opinion is muddled or vague; the rationale is actually quite  evident on the face of Justice Kennedy’s opinion.”).)

Some of this confusion stems, in my view, from Justice Kennedy’s description of state marriage law as conferring “dignity and status of immense import” upon those authorized to marry by state law. This understanding locates in the State much greater power than it possesses in a limited government. Properly understood, the State can undermine or promote human dignity through its laws (and in many other ways as well), but the State does not “confer” dignity. Once one assigns to the State a power that it is neither authorized nor suited to exercise, the boundaries that one then seeks to place around exercises of that power risk being arbitrary. (A similar dynamic comes into play when one assigns an attribute to the State that it does not, properly speaking, possess. Perhaps for this reason, the confusion surrounding Windsor resembles something of the confusion surrounding the Supreme Court’s use of “dignity” in its sovereign immunity jurisprudence.)

Whatever the sources of the confusion in Windsor, it is becoming increasingly clear that Windsor itself is a significant source of confusion for courts trying to figure out its legal import. This is apparent in last Friday’s ruling from New Jersey, Garden State Equality v. Dow. The court in Dow ruled that the equal protection guarantee of the New Jersey Constitution requires New Jersey to extend the designation of “marriage” to same-sex couples that previously were eligible for civil unions in the state. The court’s ruling rests on an interpretation and extension of the New Jersey Supreme Court’s 2006 decision in Lewis v. HarrisIn that case, the New Jersey Supreme Court held that the same state-law rights and benefits provided to married couples in New Jersey must also be provided to same-sex couples eligible for domestic partnerships. The problem with the domestic partnership scheme at issue in that case was that domestic partners received fewer state-law rights and benefits than married couples in New Jersey. The court in Lewis held that there was no fundamental right to marry, but that the state constitution’s equal protection guarantee protected against discrimination in the form of fewer benefits for same-sex couples.

Following Lewis v. Harris, the New Jersey legislature enacted civil union legislation that provided same-sex couples in civil unions with identical state-law rights and benefits as enjoyed by married couples. This appears to have remedied the state-constitutional equal protection violation found in Lewis v. Harris. And that is where matters stood until Windsor.

After Windsor held the federal DOMA unconstitutional, various agencies of the federal government determined that same-sex couples who were married under state law would receive federal benefits as married couples under federal law. But these agencies did not treat state civil unions like marriages. Accordingly, same-sex couples in civil unions in New Jersey were not entitled to the same federal benefits as same-sex couples in marriages in other states that recognized same-sex marriage.

Friday’s ruling in Garden State Equality v. Dow holds that, in the wake of Windsor, New Jersey must allow same-sex couples to marry under New Jersey law in order to be entitled to the same federal-law rights and benefits as married couples, as required by the equal protection guarantee of the New Jersey Constitution as construed in Lewis v. Harris. Here is how the Dow court summarizes its reasoning:

Under the New Jersey Supreme Court’s opinion in Lewis v. Harris, 188 N.J. 415 (2006), same-sex couples are entitled to the same rights and benefits as opposite-sex couples. The Lewis Court held that the New Jersey Constitution required the State to either grant same-sex couples the right to marry or create a parallel statutory structure that allows those couples to obtain all the same rights and benefits that are available to opposite-sex married couples. The New Jersey legislature chose the latter option when it adopted the Civil Union Act. Since the United States Supreme Court decision in United States v. Windsor, __ U.S. ___, 133 S.Ct. 2675 (2013), invalidated the Defense of Marriage Act, several federal agencies have acted to extend marital benefits to same-sex married couples. However, the majority of those agencies have not extended eligibility for those benefits to civil union couples. As a result, New Jersey same-sex couples in civil unions are no longer entitled to all of the same rights and benefits as opposite-sex married couples. Whereas before Windsor same-sex couples in New Jersey would have been denied federal benefits regardless of what their relationship was called, these couples are now denied benefits solely as a result of the label placed upon them by the State.

The ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts: civil union partners who are federal employees living in New Jersey are ineligible for marital rights with regard to the federal pension system, all civil union partners who are employees working for businesses to which the Family and Medical Leave Act applies may not rely on its statutory protections for spouses, and civil union couples may not access the federal tax benefits that married couples enjoy. And if the trend of federal agencies deeming civil union partners ineligible for benefits continues, plaintiffs will suffer even more, while their opposite-sex New Jersey counterparts continue to receive federal marital benefits for no reason other than the label placed upon their relationships by the State. This unequal treatment requires that New Jersey extend civil marriage to same-sex couples to satisfy the equal protection guarantees of the New Jersey Constitution as interpreted by the New Jersey Supreme Court in Lewis. Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.

The court’s reasoning is confusing. If the Civil Union Act remedied the violation of New Jersey’s equal protection guarantee by ensuring identical state-law rights and benefits, then how does the new availability of federal-law rights and benefits to those who are married under federal law because married under state law affect the requirements of the equal protection guarantee of the New Jersey Constitution for couples who do not have a state-constitutional-right to marry? The court’s reasoning seems to conclude that the New Jersey Constitution requires access to the federal law benefits enjoyed by married same-sex couples in other states. But if the only reason that those couples are entitled to those federal-law benefits is because the state in which those couples were married has chosen to confer the dignity and status of marriage on those couples, then why should a different state’s constitutional equal protection guarantee require entitlement to federal-law benefits when that state has not chosen to confer the dignity and status of marriage on those couples?

Further, consider the following:

- “Under the New Jersey Supreme Court’s opinion in Lewis v. Harris, 188 N.J. 415 (2006), same-sex couples are entitled to the same rights and benefits as opposite-sex couples.” But what “same rights and benefits”? Under state law? Federal law? Both? It is hard to believe that Lewis v. Harris required the New Jersey legislature to provide same-sex couples with the same benefits under federal law as married opposite-sex couples.

- “The Lewis Court held that the New Jersey Constitution required the State to either grant same-sex couples the right to marry or create a parallel statutory structure that allows those couples to obtain all the same rights and benefits that are available to opposite-sex married couples.” All the same rights and benefits under state law? Under federal law? Both? Again, it is difficult to imagine that Lewis v. Harris required the New Jersey legislature to provide same-sex couples with the same benefits under federal law as married opposite-sex couples.

- “The New Jersey legislature chose the latter option when it adopted the Civil Union Act.” Since the Civil Union Act did not do anything to provide same-sex couples with the benefits of marriage under federal law, the New Jersey legislature chose a system in which same-sex couples could obtain all the same rights and benefits under state law that are available to opposite-sex married couples. So when the court says that Lewis required a choice between same-sex marriage and “a parallel structure that allows those couples to obtain all the same rights and benefits that are available to opposite-sex married couples,” that parallel structure was measured by reference to state-law rights.

- “Since the United States Supreme Court decision in United States v. Windsor, __ U.S. ___, 133 S.Ct. 2675 (2013), invalidated the Defense of Marriage Act, several federal agencies have acted to extend marital benefits to same-sex married couples. However, the majority of those agencies have not extended eligibility for those benefits to civil union couples. As a result, New Jersey same-sex couples in civil unions are no longer entitled to all of the same rights and benefits as opposite-sex married couples.” But same-sex couples in civil unions in New Jersey were not previously entitled to all of the same rights and benefits under federal law as opposite-sex married couples in New Jersey. And that did not violate the New Jersey Constitution. Same-sex couples in civil unions in New Jersey were entitled to the same rights and benefits under state law before Windsor, and they remain entitled to the same rights and benefits under state law after Windsor.

- “Whereas before Windsor same-sex couples in New Jersey would have been denied federal benefits regardless of what their relationship was called, these couples are now denied benefits solely as a result of the label placed upon them by the State.” WIndsor held unconstitutional the refusal of federal-law marriage benefits to those upon whom the state conferred the dignity and status of marriage. Same-sex couples in New Jersey are not couples upon whom the state has conferred the dignity and status of marriage. Wasn’t that the basic function of the Lewis court’s distinction between interpreting the New Jersey Constitution to require “marriage” on the one hand, versus interpreting the New Jersey Constitution to allow civil unions with identical rights and benefits as marriage under a different label, on the other?

[Cross-Posted at Mirror of Justice]

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A split panel of the Fourth Circuit today held that Virginia’s ban on certain alcohol advertising in college newspapers violates the First Amendment as applied to Collegiate Times (at Virginia Tech) and Cavalier Daily (at UVA). This holding of as-applied unconstitutionality comes almost three-and-a-half years after the Fourth Circuit upheld the same regulation against a facial challenge in Educational Media Co. v. Swecker, 602 F.3d 583 (4th Cir. 2010). The panel declined to decide whether to apply a form of heightened scrutiny to the Virginia speech regulation, but held that the regulation violated the fourth prong of the four-prong Central Hudson test for assessing the validity of commercial speech restrictions. The opinion for the court in today’s decision, Educational Media Co. v. Insley, was authored by Judge Thacker and joined in by Judge King. Judge Shedd (the author of the panel opinion on the facial challenge) dissented. (For more information and background, see the ACLU’s Press Release touting the victory and AP coverage in the Washington Post.)

As described by the Fourth Circuit, the Central Hudson test provides that “a regulation of commercial speech will be upheld if (1) the regulated speech concerns lawful activity and is not misleading; (2) the regulation is supported by a substantial government interest; (3) the regulation directly advances that interest; and (4) the regulation is not more extensive than necessary to serve the government’s interest.” The parties agreed that prongs (1) and (2) were satisfied, and the court held that its earlier analysis in Swecker established that prong (3) was satisfied. Turning to prong (4), the court held that “the challenged regulation fails under the fourth Central Hudson prong because it prohibits large numbers of adults who are 21 years of age or older from receiving truthful information about a product that they are legally allowed to consume.” In support of this conclusion, the majority observed that “roughly 60% of the Collegiate Times’s readership is age 21 or older and the Cavalier Daily reaches approximately 10,000 students, nearly 64% of whom are age 21 or older.”

Reading today’s opinion in light of the Fourth Circuit’s earlier opinion in Swecker, one should feel some sympathy for Judge Lauck, who has now been twice reversed in this case. Judge Lauck initially held that the regulation violated the First Amendment on its face, only to be reversed in Swecker. Judge Lauck then upheld the regulation against an as-applied challenge under Swecker, only to be reversed in an opinion that, as a practical matter (though not as a technical matter), reaches the same bottom-line conclusion as Judge Lauck’s initial decision. Moreover, the main evidence relied upon by the Fourth Circuit panel in its consideration of the as-applied challenge was before the panel that decided Swecker and was discussed in Judge Moon’s dissenting opinion in that case.  Although the opinion contains several passages discussing the distinction between facial and as-applied challenges, this is an area of the law that is as murky (or murkier) in the Fourth Circuit as it is elsewhere throughout the federal judiciary.

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Each Catholic religious order has its own special charism that can be seen in institutions founded by and run by members of the order. In and through their various institutions, I have personally experienced the distinctive charism of Dominican sisters, Salesian priests, brothers, and sisters, Capuchin Franciscan priests, Holy Cross priests and brothers, Jesuit seminarians and priests, and Augustinian priests and brothers, among others. It was not until earlier this year, however, that I encountered the distinctive charism of the Little Sisters of the Poor in their own distinctive institutions: homes for the elderly poor. The Little Sisters’ charism is one of hospitality, in which the Sisters strive to “be little in order to be close to the most humble, and [to] be close to make them happy.”

Like many Catholics, I was familiar with the Little Sisters from their trips to our parish to beg for funds for their ministry. I knew that they knew how to ask in a way that touched the hearts of the congregation. But it was not until I met some of the sisters at St. Joseph’s Home in Richmond (including two Sisters from St. Martin’s Home in Baltimore), and again at Jeanne Jugan Residence in Washington, D.C., that I understood on a deeper personal level the real difference that their presence makes in the lives of their homes’ residents and in the life of the Church. It’s the difference that comes from knowing that one is loved and has dignity and will not die alone, and the difference that comes from vowed women religious spreading that love, cultivating that dignity, and accompanying the dying on their final journey.

Unfortunately, however, the occasions for my visits to their homes were meetings to discuss legal matters. Like many religious organizations, the Little Sisters have needed to figure out how to deal with the federal government’s refusal to treat them as a religious employer exempt from the legal requirement to offer health benefit plans that violate their religious beliefs. The fruit of some of those earlier consultations was a set of comments in response to the federal government’s Notice of Proposed Rulemaking. In those comments, the Little Sisters respectfully requested the government “to reach a just resolution that respects the religious freedom and conscience rights of all.” And the comments expressed the hope “that it is unnecessary for us to join the scores of employers that have already resorted to the federal courts for protection.”

That hope has now met necessity, and the Sisters are now in federal court. Through two of their homes (in Denver and in Baltimore), the Little Sisters have filed a lawsuit, together with Christian Brothers Services and Christian Brothers Employee Benefits Trust (which cooperate with religious organizations in the provision of benefits). The lawsuit seeks relief from enforcement of the requirement to arrange their health benefit plans so that beneficiaries receive no-cost access to female sterilization and all FDA-approved contraceptive drugs and devices (including some with abortifacient properties).

Although aware of the Little Sisters’ religion-based objections to this requirement, the federal government has refused to treat the Little Sisters’ homes as “religious employers” that receive an exemption. Having witnessed the Sisters’ ministry in these homes and having worshipped with the Little Sisters in the St. Joseph’s Home’s chapel, this refusal boggles even the lawyerly part of my mind. These Little Sisters of the Poor homes are—in the words of Cardinal George—“icons of mercy where Christ is welcomed and served in the elderly poor with the utmost respect for their dignity.” In any ordinary time, these homes would easily be recognized as “religious employers.” But perhaps this is no ordinary time. If the federal government continues to refuse to recognize these homes as “religious employers” under the federal contraceptives mandate, then words have lost their meaning for them.

The lead lawyers on the case are from the Becket Fund for Religious Liberty and Locke Lord LLP. I am continuing to assist the Little Sisters as part of their legal team and will therefore be more circumspect than I might otherwise be in discussing various aspects of the case. But the complaint speaks for itself. And the Becket Fund has created a case page with more background, including a press release and a web video, which I encourage all to check out.

(cross-posted at Mirror of Justice)

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A split panel of the Fourth Circuit today reinstated the free speech and free association claims of some sheriff’s deputies in Hampton, Virginia who alleged that they had been fired from their jobs for supporting the incumbent sheriff’s political opponent. Among the issues in the case was whether clicking “Like” on the challenger’s campaign page was speech within the protection of the First Amendment. The district court said no: “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.” But the Fourth Circuit today disagreed. Here is the relevant portion of the Court’s analysis (discussing the claim of one Carter):

Here, Carter visited the Jim Adams’s campaign Facebook page (the “Campaign Page”), which was named “Jim Adams for the Hampton Sheriff,” and he clicked the “like” button on the Campaign Page. When he did so the Campaign Page’s name and a photo of Adams –which an Adams campaign representative had selected as the Page’s icon – were added to Carter’s profile, which all Facebook users could view. On Carter’s profile, the Campaign Page name served as a link to the Campaign Page. Carter’s clicking on the  “like” button also caused an announcement that Carter liked the Campaign Page to appear in the news feeds of Carter’s friends. And it caused Carter’s name and his profile photo to be added to the Campaign Page’s “People [Who] Like This” list.

Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.

Aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression. The distribution of the universally understood “thumbs up” symbol in association with Adams’s campaign page, like the actual text that liking the page produced, conveyed that Carter supported Adams’s candidacy. See Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curiam) (holding that person engaged in expressive conduct when there was “[a]n intent to convey a particularized message . . ., and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it”); see also Tobey v. Jones,  706 F.3d 379, 388 n.3 (4th Cir. 2013).

In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it  is the Internet equivalent of displaying a political sign in  one’s front yard, which the Supreme Court has held is  substantive speech. See City of Ladue v. Gilleo, 512 U.S. 43,  54-56 (1994). Just as Carter’s placing an “Adams for Sheriff” sign in his front yard would have conveyed to those passing his home that he supported Adams’s campaign, Carter’s liking Adams’s  Campaign Page conveyed that message to those viewing his profile  or the Campaign Page.15 In fact, it is hardly surprising that  the record reflects that this is exactly how Carter’s action was  understood. See J.A. 160 (McCoy’s testimony that in light of  Carter’s liking Adams’s Campaign Page, “everybody was saying  that . . . Carter is out of there because he supported Adams  openly”); see also J.A. 793 (Sheriff’s Office employee stating  that Roberts had said that “certain employees were on the  Facebook page of his opponent, Jim Adams, indicating their support of Adams for Sheriff”).

All of this sounds just right.

Chief Judge Traxler wrote the opinion for the court in Bland v. Roberts, in which Judge Thacker joined.  Judge Hollander (D.Md., sitting by designation) wrote a separate opinion concurring in part and dissenting in part. The judges were not split on the liking-as-speech issue but on the application of qualified immunity, a split largely traceable to different views about the scope of the en banc holding in Jenkins v. Medford, 119 F.3d 1156 (4th Cir. 1997) (en banc).

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Following up on Tom Berg’s post at MOJ about the Democrats for Life brief and Michael Moreland’s post about the McConnell/Inazu/CLS et al. brief, see here for another amici curiae brief in support of petitioners inMcCullen v. Coakley. This one is filed on behalf of several First Amendment scholars: Eugene VolokhRick GarnettMichael Stokes PaulsenTimothy ZickWilliam E. LeeAlan Chen, and Ronald J. Krotoszynski, Jr. The brief highlights the depth and breadth of academic criticism of Hill v. Colorado. The brief’s signatories have different views on the Supreme Court’s abortion jurisprudence but agree on the importance of the First Amendment principles at stake in the case. Special thanks to Matthew Fitzgerald of McGuireWoods for taking the pen and for serving as counsel of record.

The table of contents for the brief provides a sense of the arguments:

I. EVEN STRONG SUPPORTERS OF ABORTION RIGHTS 
FAVORED FREE  SPEECH IN HILL v. COLORADO................... 6
A. Hill’s content-neutrality holding disagreed with the ACLU 
and drew immediate criticism from leading liberal scholars.............................. 8
B. Hill’s focus on protecting the unwilling listener was also widely 
doubted and criticized............................ 12

II. THE LOGIC OF HILL OPENED THE DOOR TO 
THE MORE RESTRICTIVE MASSACHUSETTS LAW HERE ................... 14

A. In the wake of Hill, scholars predicted trouble such as this 
ahead. ..................................................... 14

B. The courts have slid directly down 
Hill to McCullen..................................... 15

CONCLUSION ........................................................ 21

[cross-posted at Mirror of Justice]

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Jonathan Adler has an informative post at Volokh Conspiracy on Justice Ginsburg’s recent charge of “judicial activism.” He argues that “Justice Ginsburg’s real complaint is with the substance of specific opinions, not that the Court is too ‘activist’ . . . .” Adler’s criticism can be expanded to Justice Ginsburg’s complaint about facial invalidation of Section 4 of the Voting Rights Act in light of her vote for facial invalidation of Section 3 of the Defense of Marriage Act.

On June 25, 2013, the Court released opinions in Shelby County v. Holder. And on June 26, 2013 the Court released opinions in United States v. Windsor. Justice Ginsburg argued in her Shelby County dissent that the Court abandoned its “usual restraint” by considering Shelby County’s “purely facial challenge” to the Voting Rights Act’s 2006 reauthorization. She complained that “the Court’s opinion in this case contains not a word explaining why Congress lacks the power to subject to preclearance the particular plaintiff that initiated this lawsuit–Shelby County, Alabama.” Yet the next day we learned that she had joined an opinion that considered the constitutionality of DOMA’s section 3 as a facial matter. Rather than ask whether Congress had the power to limit the marital deduction from the estate tax to married opposite-sex couples, the Court considered the constitutionality of DOMA § 3 as applied throughout the entire United States Code. In both cases, the facial vs. as-applied nature of the reasoning was a consequence of the underlying substantive legal doctrine. If one has a problem with facial invalidation, then, it is better cast as a disagreement with the underlying substantive legal doctrine.

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I am honored to have joined the community of posters at Mirror of Justice, “a blog dedicated to the development of Catholic legal theory.” I have been reading it since it began. (If I recall correctly, it is the third legal blog that I began to read regularly, after How Appealing and The Volokh Conspiracy.) I have learned much since then and still have much to learn. But I hope to do my best to contribute there to the project of developing legal theory from a Catholic perspective. If you are not already a regular reader, I encourage you to check it out. (For my first post there, see here.)

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A recent post by Michael Dorf about Virginia’s cert petition in Moose v. MacDonald reminded me of one thing that I like about the law. It can channel moral and political disagreement in various ways so that people who might disagree as to non-legal matters can agree about legal matters. Dorf concludes, contrary to some of AG Ken Cuccinelli’s most vocal critics, that “Cuccinelli appears to have a pretty good legal argument that the Fourth Circuit decided the case erroneously.” As I have previously argued (here, here, here, and here), Virginia’s argument is “pretty good” and maybe even better than that. This does not mean that the Supreme Court will grant cert, of course, but this is one of those unusual cases where summary reversal might get serious consideration.

Dorf’s conclusion about the strength of Virginia’s petition depends on the deferential standard of review on federal habeas supplied by 28 U.S.C. § 2254(d). That provision prohibits a federal court from granting an application for a writ of habeas corpus to one in custody pursuant to state proceedings unless the State adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” As long as the Virginia state court’s view was not unreasonable, the Fourth Circuit should not have granted relief.

Although disagreeing with most critics on the merits, Dorf apparently agrees that the course of proceedings nevertheless reveals “Cuccinell’s hypocrisy” and his “audacity.” This assessment relies on Cuccinelli’s opposition to a proposed “Lawrence fix” bill that Cuccinelli voted against as a legislator. Here’s the key paragraph of Dorf’s post on this point:

Much of the media coverage of the case has understandably focused on Cuccinelli’s hypocrisy.  The Virginia legislature tried to replace the blanket sodomy prohibition–which applies to everyone regardless of their age–with a narrower law that would focus simply on sex with minors, but Cuccinelli played a role in squashing that effort.  Now he has the audacity to say that he needs to use the broader law as his only available means to target sodomy with minors. Dahlia Lithwick nicely captures what is so outrageous about this move when she writes: “You can’t really stagger around swinging a huge, unwieldy legal mallet and claiming it’s the only tool you have against pedophilia. Not when you opted to turn down the offer of a scalpel.”

This assessment misdescribes the nature of the proposed “Lawrence fix”  in a way that undercuts the analysis. The bill did three things: (1) it separated the bestiality and sodomy prohibitions into separately numbered subsections; (2) it provided that the sodomy prohibition “shall not apply where all persons are consenting adults who are not in a public place and who are not aiding, abetting, procuring, engaging in or performing any act in furtherance of prostitution”; and (3) it changed the classification of the sodomy offense from a felony to a misdemeanor (which may have been the reason that some legislators opposed it). Note that nothing in these changes had to do with age; the bill did not “focus simply on sex with minors,” but instead codified the Virginia legislature’s understanding of Lawrence.

And here is where things get (legally) interesting: If the Virginia legislature’s understanding of Lawrence was correct, then the Fourth Circuit‘s analysis was wrong. Under the Virginia legislature’s understanding of Lawrence, the conduct underlying the petitioner’s solicitation offense (solicitation of oral sex from a minor) was not constitutionally protected. The narrowing that would have been accomplished as a matter of state law under the proposed fix would not have excluded petitioner’s conduct from the sweep of the prohibition. Not only would sodomy involving minors have remained within the prohibition, so too would have sodomy in a public place, and sodomy related to prostitution. The proposed Lawrence fix relied on the very same reading of Lawrence defended by Virginia in Moose v. MacDonald. 

The Fourth Circuit determined that it could not adopt this reading because “a judicial reformation of the anti-sodomy provision to criminalize MacDonald’s conduct in this case, and to do so in harmony with Lawrence, requires a drastic action that runs afoul of the Supreme Court’s decision in Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006).” And yet the Fourth Circuit would have had to do precisely nothing to Virginia’s law in order to deny habeas relief. As a matter of federal law, the prohibition against unconstitutional applications of the sodomy statute already existed because of Lawrence itself. Apart from the change in penalty, there would have been no difference in the state of the law as it existed at the time of petitioner’s September 2004 conduct of conviction if Virginia had enacted the proposed Lawrence fix earlier that year.

And here’s where it gets even more (legally) interesting. The change in penalty would have been significant for petitioner. If the proposed bill had passed, petitioner could not have been convicted of solicitation of a felony because oral sex with a 17-year-old, unrelated minor would have been changed to a misdemeanor instead of a felony. Maybe that would have been a good change in the law; maybe it would have been bad. But by including it in addition to the Lawrence fix, the bill’s sponsors probably lost some votes, perhaps including Cuccinelli’s. If so, then Cuccinelli’s stance is not only not hypocritical, but completely consistent. And it is the critics who are subject to the accusation instead. For the proposed bill would not have enabled Virginia to prosecute the petitioner’s conduct in the way that it did.

Okay, now suppose that Virginia had enacted a Lawrence fix identical to the one proposed but without the change in penalty. Perhaps Cuccinelli could have voted for it. There would have been no reason not to because it would not have worked any real change in the law. If petitioner had then raised a Lawrence-based claim on direct review, he would have had to argue for an extension of Lawrence. And on the supposition that this would have been unsuccessful, his claim for habeas relief would have been unsuccessful because the § 2254(d) standard of review precludes that kind of extension of the law.

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USA Today ran an editorial today arguing that businesses should not be able to rely on religious freedom in refusing to provide no-copay coverage for all FDA-approved contraceptive drugs and devices.  The newspaper also ran Mark Rienzi’s better op-ed for the opposite position. (HT: Mirror of Justice)

Both op-eds are written in plain English and make their points effectively. But USA Today’s house editorial is marred by a misunderstanding of existing religious liberty law. In particular, the editorial is written as if RFRA does not already exist. Instead of arguing that RFRA does not protect business corporations, as some have tried to do, the editorial simply misdescribes the state of the law. It argues that “the issue is one of balance” without describing the law that describes how that balance is to be struck. Indeed, the editorial describes “granting religious exemptions to private organizations” as “troubling” and “open to abuse,” seemingly unaware that RFRA exists and does precisely this. Although the Obama Administration has tried to carve out the category of for-profit, secular corporations from RFRA’s reach, everyone agrees that RFRA provides some “religious exemptions to private organizations.”

The editorial also is mistaken about Supreme Court precedent. Consider the following paragraph:

Over the years, plaintiffs have demanded religious exemptions from laws on racial equality, the military draft, paying taxes, child neglect, drug use, animal cruelty and more. The Supreme Court has repeatedly said no, drawing a line between laws that explicitly target or place a substantial burden on a religion and those that impose broad, secular requirements on society that people might find religiously objectionable.

This paragraph implies that the Supreme Court has said “no” to religious exemptions from laws on drug use and animal cruelty. But that is not true. In Gonzales v. O Centro Espirita Beneficente UDV, 546 U.S. 418 (2006), the Supreme Court held that RFRA provided an exemption for “drug use” in a religious ritual. (The lead party that brought the claim in this case, by the way, was a New Mexico corporation.) And in Church of the Lukumi Babalu, Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), the Court held that the Free Exercise Clause protected ritual animal sacrifice by adherents of the Santeria religion; this ruling prohibited enforcement of a city ordinance justified in part by concerns about animal cruelty.

A bigger problem with USA Today’s statement of the law, however, is that it conflates laws that explicitly target religion and laws that place a substantial burden on religion, and then contrasts those two kinds of laws with laws that “impose broad, secular requirements on society that people might find religious objectionable.” The problem with this framing is that some laws that impose broad, secular requirements on society also place a substantial burden on religion. And that is why Congress passed RFRA. Unlike the Free Exercise Clause, which the Supreme Court has held to provide no protection against neutral and generally applicable laws, RFRA protects against such laws whenever they impose a substantial burden on religion. RFRA’s protections are triggered by the imposition of the burden, not the nature of the law imposing that burden. RFRA claims do not always win, of course. But RFRA places the burden on the government to satisfy strict scrutiny when a federal law imposes a substantial burden on the exercise of religion. If the Obama Administration has to satisfy strict scrutiny for its contraceptives mandate, it will lose.

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Writing at Slate, Dahlia Lithwick criticizes what she describes as Ken Cuccinelli’s “war on consensual sodomy in the commonwealth.”  I have criticized Cuccinelli before myself, but it is a mistake to view Cuccinelli’s actions here as an attempt to “employ the federal courts to advance a personal moral agenda.” Although Lithwick’s piece makes some good policy arguments about the advisability of revising Virginia law, I disagree with Lithwick’s criticism of the Attorney General of Virginia for seeking Supreme Court review of a federal habeas corpus decision that incorrectly held a state law partially facially unconstitutional notwithstanding the strictures of 28 U.S.C. § 2254(d).

Before getting into some fairly dense discussion of things like facial challenges and severability that explains why Virginia’s position makes good legal sense, it is fitting at the outset (before I have lost both of my readers) to criticize Lithwick’s piece from the standpoint of legal journalism. It is, of course, fair to criticize a discretionary choice to seek discretionary review, and reasonable people may disagree about whether Virginia should have sought certiorari. But Lithwick’s characterization of the arguments advanced by Virginia in its petition for certiorari is inaccurate and misleading. Virginia is not asking the Supreme Court to “interpret [Virginia's] terrifyingly broad sodomy law to apply only to sex involving 16- and 17-year-olds,” as Lithwick puts it. Rather, Virginia is asking the Supreme Court to hold that Lawrence v. Texas invalidated Virginia’s statute only insofar as the statute is applied to criminalize consensual, private, non-commercial, adult conduct of the sort at issue Lawrence. According to Virginia’s petition, that is the view of Lawrence adopted by virtually every other court in the country. And asking the Supreme Court to rein in the Fourth Circuit’s outlier reading hardly amounts to “begging out-of-touch, elitist, liberal federal courts to make ad hoc decisions about which private sex acts are ‘unnatural’.” I realize that there can be many legitimate ways of characterizing legal arguments. But in this piece, Lithwick trades precision for sensationalism. Moreover, the version of the piece that is up as I write contains seventeen links, but not one of these is to Virginia’s actual legal arguments. At a minimum, Slate should immediately include a link to Virginia’s petition so that its readers can judge for themselves. And Slate should probably also add a link to the Fourth Circuit’s opinion itself. (The closest the piece comes now is a link to a post at Constitutional Law Prof Blog. Happy for them to get the traffic, go read!, but there’s nothing like going straight to the source.)

Okay, now for the technical legal stuff of a sort that I find interesting but that has the proven capacity to bore my family (and probably almost anyone else stuck with me on long car trips) to tears. (more…)

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Thanks to David Kopel’s post on The Volokh Conspiracy, I had the pleasure of reading this afternoon “The Fiduciary Foundations of Federal Equal Protection” by Gary Lawson, Guy Seidman, and Rob Natelson. I will not summarize their argument, which is easy enough to ascertain from their abstract. Instead, I would like to highlight their discussion of the difference between a theory of interpretation (like, say, original public meaning originalism) and a theory of adjudication. The distinction, which is central to a forthcoming paper (“Judging Theory”) that I have co-authored with Marc DeGirolami and hope to say more about soon, is too often ignored in constitutional theory. Here’s how Lawson, Seidman, and Natelson explain the difference:

Our focus has been on discerning constitutional meaning, and we have no trouble saying that the federal Constitution means that federal government officials must have plausible reasons when discriminating among classes of citizens. That is no more difficult than saying that a trustee needs to have good reasons for his or her actions when he or she treats some beneficiaries more favorably than other beneficiaries, or that an agent must have good reasons for discriminating among principals. The strength of the required reasons will vary with context, but an utterly arbitrary action by a fiduciary that discriminates among beneficiaries or principals is always a breach of duty. The Constitution imposes a similar rule on federal actors, unless one can discern specific contexts in which that general requirement does not apply. But determining how, or even whether, to translate that meaning into real-world constitutional doctrine requires a completely different kind of inquiry than we have undertaken here.

The move from meaning to real-world doctrine requires a theory about a very complex relationship between what a document means and how people should behave. Many people assume that once the Constitution’s meaning is discerned, it follows naturally that political actors, such as judges, should act in accordance with that known meaning. As one of us has emphasized to tedium, however, that is an assumption far less inevitable than widespread.

Propositions about constitutional meaning are factual statements whose truth or falsity is determined by the tools of interpretative theory, while propositions about constitutional doctrine, which purport to dictate appropriate conduct, are normative claims whose truth or falsity must be determined by political and moral theory. Evidence that supports one kind of claim may or may not support other kinds of claims. Even assuming that constitutional meaning is relevant to constitutional action, it is far from obvious that adjudication either can or should directly apply what one regards as the correct theory of constitutional meaning (whatever that theory may be). Adjudication takes place in real time, with limited resources. Anyone who says that there is no price tag on justice understands neither price tags nor justice. It is virtually inevitable that any sensible, workable system of adjudication will adopt shortcuts, or rules of thumb, for dealing with recurring situations, which almost certainly means that some decisions that are adjudicatively “correct” will be interpretatively “wrong,” simply because getting the interpretatively “correct” answer would be too costly. A theory of adjudication probably cannot follow in a straight line from a theory of interpretation even if the conceptual and normative gap between meaning and adjudication can be bridged.

Thus, we present here no theory about the appropriate way to translate constitutional meaning into constitutional adjudication. We conclude only that the Constitution’s meaning includes fiduciary obligations on federal officials; we do not say whether courts can or should enforce those obligations in any particular fashion.

[pp. 42-44, footnotes omitted]

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A recent post at Mirror of Justice brought me to Perry Dane’s insightful seven-page essay, Doctrine and Deep Structure in the Contraception Mandate Debate, which is well worth reading. So too is Douglas Laycock’s recently posted article, Religious Liberty and the Culture Wars

Dane’s and Laycock’s reflections align in a way with aspects of Joel Friedlander’s incisive 1992 Comment, Constitution and Kulturkampf: A Reading of the Shadow Theology of Justice Brennan, 140 U. Penn. L. Rev. 1049 (1992). In this Comment (written as a student but of a quality that far surpasses most faculty-produced scholarship), Friedlander seeks to explain Justice Brennan’s jurisprudence as it developed over the course of his judicial career. His thesis is that “a kulturkampf, warring cultures and warring theories of culture, best explains the shift in Justice Brennan’s decisions and his place in the continuing war over the meaning of the Constitution.”

Friedlander analyzes Brennan’s jurisprudence through analytical frameworks supplied by social theorists Otto Gierke, Ernst Troeltsch, and Philip Rieff. His description of Rieff’s thought suggests the ongoing relevance of Rieffian analysis, and Friedlander’s Rieffian analysis of Justice Brennan’s obscenity decisions points toward a different kind of “culturally conservative” jurisprudence:

Rieff, a contemporary of Justice Brennan, is a sociologist of culture and cultural change. In Rieffian theory, modernity denies and negates the sacred order that all cultures, Catholic and otherwise, address. Included in his theory of cultural warfare, or kulkturkampf, are theories of legal personality and the relative authority of religious and racial motifs. * * *

To Rieff, the first sociological fact worth knowing about cultures is that their continued life depends upon them disarming their competitors. Only as a last resort is military force utilized; the first weapon is words. Of concern in this Comment is the ultimate weapon of the law, which implies both command and compulsion. * * *

* * *

The dimensions of this cultural warfare are not contained by, and may dwarf, the longstanding jurisprudential debates between originalism and non-originalism or between natural law and positivism. At stake in this culture struggle is the survival or abandonment of the moral authority in the Constitution that is derived from Judaism, Christianity, or any other religion. Though there are those who fear the implementation of a “new right” jurisprudence, the cultural conservatives on the opposing side are largely constrained by their positivism, if not by their originalism. To avoid these artificial constraints, this Comment concludes, a culturally conservative jurisprudence should look to Justice Brennan’s theories and their expressing in the reasoning of Roth.

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I suspect that the government lawyers who successfully defended the HHS contraceptives mandate against RFRA and Free Exercise claims in Conestoga Wood Specialties Corp. v. HHS really would have preferred to win on different grounds. That is because the basis for the Third Circuit’s decision is legally insubstantial. On an issue that will be decided by the Supreme Court, it would be better for the government to have won on a more defensible basis than the conclusion that a “for-profit, secular corporation” cannot “exercise religion.”

The dissenting opinion by Judge Jordan convincingly demonstrates that the majority’s ultimate conclusion is wrong and that its supporting reasoning is defective. Will Baude at Volokh Conspiracy and Marc DeGirolami at Mirror of Justice have also raised questions about the panel majority’s analysis. Over the next couple of weeks, I aim to provide additional critical commentary that elaborates on criticisms previously raised and offers new angles of analysis and criticism. While some of these criticisms will be based on arguments advanced in the amicus brief that I co-authored in Conestoga, I aim to expand beyond the targeted set of arguments advanced there.

For now, I will begin with Marc DeGirolami’s argument about the short shrift given RFRA in the panel majority’s analysis. The majority opinion states: “Our conclusion that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause necessitates the conclusion that a for-profit, secular corporation cannot engage in the exercise of religion. Since Conestoga cannot exercise religion, it cannot assert a RFRA claim.” DeGirolami argues that the court should not have simply assumed “that a term as used in the Constitution must mean exactly the same thing as a term used in a statute.”

DeGirolami is right that there cannot be a one-to-one relationship between RFRA and the Free Exercise Clause as interpreted by the Supreme Court. The purpose of RFRA was to replace the legal standard for evaluating Free Exercise claims adopted in Employment Division v. Smith, 494 U.S. 872 (1990). But given the stated intention of RFRA, there should be a close correspondence between the pre-Smith reach of the Free Exercise Clause and the reach of RFRA. One of the purposes declared in the legislation is “to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb(b)(1).

If the panel majority’s analysis had started with RFRA instead of the Free Exercise Clause, it is less likely that its analysis would have led to the wrong conclusion. To begin with, there is more textual guidance in the U.S. Code. As DeGirolami points out, Congress has declared that the protected “exercise of religion” “includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” That language suggests an expansive understanding of “exercise of religion,” and it invites further inquiry into how “exercise of religion” should be understood.

As I have previously argued in connection with the Third Circuit’s earlier mistaken decision on the contraceptives mandate, “a religiously based refusal to do something otherwise required by law is an ‘exercise of religion.’” Consider the facts of Sherbert v. Verner, 374 U.S. 398 (1963), one of the two cases singled out in RFRA. The exercise of religion in that case was Adele Sherbert’s religion-based refusal to work on Saturday. See id. at 403 (describing the relevant conduct as “appellant’s conscientious objection to Saturday work”).

A corporation can engage in this kind of “exercise of religion” if a corporation can refuse, for religious reasons, to do something otherwise required by law. And it plainly can. Suppose a federal law requiring fast-food restaurants located near interstate highways to be open seven days a week. Chick-fil-A’s religion-based refusal to operate on Sundays in violation of this law would surely be an “exercise of religion” akin to Ms. Sherbert’s refusal to work on Saturdays.

The profit-making character of the corporation does not change the analysis of whether the corporation can make a religion-based decision. Chick-fil-A is a profit-making business. Yet it foregoes the profits it would otherwise make through Sunday operation because its religion-based corporate policy controls the manner in which it seeks to make a profit. Similarly, Ms. Sherbert was working for money (and later seeking unemployment benefits). Yet her religious obligation not to work on Saturday conditioned the manner in which she could go about earning money.

The panel majority opinion simply does not address this line of argument. One way in which its failure to address RFRA independently may have contributed to this failure to analyze what counts as a protected “exercise of religion” emerges from a word search for that phrase. It does not appear until page 28, after the majority has already concluded its Free Exercise analysis. In the course of its Free Exercise analysis, the Third Circuit panel majority does not ask whether a corporation can engage in the “exercise of religion” (RFRA’s words), but rather whether corporations can “engage in religious exercise” [11] or whether corporations can “exercise religion” [15]. The wording shift is subtle and almost certainly unintentional, but it nevertheless tends to lead analysis in the wrong direction. For the panel majority’s rephrasing suggests asking whether a corporation can engage in religious exercises like prayer, worship, participation in sacraments, and so on. But that is not what the governing law requires.

One might try to distinguish the exercise of religion in Sherbert on the ground that the underlying basis of the refusal to work on Saturday was so that Ms. Sherbert could engage in the religious exercise of attending worship services. The problem with this distinction is that it is sufficient for the religion-based refusal to be sincere and religion-based. It does not need to be tied to some other “religious exercise.” Consider Thomas v. Review Board, 450 U.S. 707 (1981). The exercise of religion in that case was Mr. Thomas’s refusal to participate in the production of turrets for military tanks. This refusal was based on Mr. Thomas’s beliefs as a Jehovah’s Witness. It did not matter that this religion-based refusal conditioned Mr. Thomas’s pursuit of money. The Supreme Court found it sufficient that “Thomas terminated his employment for religious reasons.” Similarly, the Third Circuit should have found it sufficient that Conestoga objects to compliance with the mandate for religious reasons. That religion-based objection is an “exercise of religion” within the compass of both RFRA and the Free Exercise Clause.

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Over the past week, Mirror of Justice has had links to three Commonweal essays on various aspects of the same-sex marriage decisions: Marc DeGirolami, “Why Standing Matters: Same-Sex Marriage & the Role of the Courts,” Rick Garnett, “Worth Worrying About? Same-Sex Marriage & Religious Freedom,” and Michael Perry, “Right Decision, Wrong Reason: Same-Sex Marriage & the Supreme Court.” All are worth reading in full.

Perry’s stood out for me because his perspective on Justice’s Scalia dissent in United States v. Windsor differed from that of many commentators who spoke or wrote about that decision right after it came down. These others commentators harshly criticized the tone of Scalia’s dissent. Perhaps the most prominent in this category was Harvard Law Professor Laurence Tribe, who used his day-of-decision SCOTUSBlog symposium commentary “to highlight the extraordinary character of [Justice Scalia's] particularly vitriolic and internally inconsistent dissent.” In contrast with Tribe, Perry writes that “Scalia’s indignation was understandable.”

Perry’s perspective is refreshing because criticisms of passionate judicial expression often track, and are often just another way of reinforcing, critics’ views of the underlying legal merits. Not so in Perry’s Commonweal essay. Perry believes that DOMA is unconstitutional, but he also recognizes that there are (as Scalia put it): “good people on all sides.” Indeed, Perry criticizes Justice Kennedy’s opinion for the majority, which in his view “should not have put any weight on the alleged ‘animus’ of those opposed to same-sex marriage.” That approach, Perry says, is “demeaning to all those who for a host of non-bigoted reasons uphold the traditional understanding of marriage as an essentially heterosexual institution.”

 

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A divided three-judge panel of the Fourth Circuit held today that three of President Obama’s appointments to the NLRB were invalid because they did not take place during an intersession recess of the Senate. Senior Judge Hamilton wrote the opinion for the majority in NLRB v. Enterprise Leasing Co. SE, LLC (the lead case on the caption). Judge Duncan joined in full and wrote a separate concurrence. Judge Diaz dissented from the constitutional holding (but concurred in other matters).

Although Judge Hamilton and Judge Duncan were appointed by Presidents Bush 41 and Bush 43, respectively, while Judge Diaz was appointed by President Obama, the best explanation for the differing outcomes tracks methodological rather than partisan political differences. The majority and dissenting opinions exhibit vastly different approaches to constitutional interpretation. The majority emphasizes text and history while the dissent is avowedly pragmatic and functional (indeed the most explicitly functionalist opinion by Judge Diaz that I can recall).

The Fourth Circuit’s decision bodes poorly for the Administration when the Supreme Court addresses these issues next Term in NLRB v. Noel Canning. This assessment is based not simply on the bottom-line conclusion reached by the Fourth Circuit, but on how the opinions were reasoned. On issues like these, the majority of the Supreme Court is methodologically closer to Judge Hamilton than Judge Diaz. It is difficult to see a majority of the Court hewing to the reasoning and conclusions reached by Judge Diaz in this case.

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The Fourth Circuit today unanimously affirmed the piracy and piracy-related convictions of Mohammad Shibin, a negotiator for Somali pirates in connection with the seizure of the American sailing ship Quest and the German merchant ship Marida Marguerite. Judge Niemeyer wrote the opinion in United States v. Shibin, in which Judge Motz and Judge Floyd joined. (For news coverage of the oral argument, see here.)

This summary begins the opinion:

On May 8, 2010, Somali pirates seized the German merchant ship the Marida Marguerite on the high seas, took hostages, pillaged the ship, looted and tortured its crew, and extorted a $5-million ransom from its owners. Mohammad Saaili Shibin, while not among the pirates who attacked the ship, boarded it after it was taken into Somali waters and conducted the negotiations for the ransom and participated in the torture of the merchant ship’s crew as part of the process.

On February 18, 2011, Somali pirates seized the American sailing ship the Quest on the high seas. A U.S. Navy ship communicated with the pirates on board in an effort to negotiate the rescue of the ship and its crew of four Americans, but the pirates referred the Navy personnel to Shibin as their negotiator. When the Navy ship thereafter sought to bar the pirates from taking the Quest into Somali waters, the pirates killed the four Americans.

Shibin was later located and arrested in Somalia and turned over to the FBI, which flew him to Virginia to stand trial for his participation in the two piracies. A jury convicted him on 15 counts, and he was sentenced to multiple terms of life imprisonment.

On appeal, Shibin contends that the district court erred by refusing (1) to dismiss the piracy charges on the ground that Shibin himself did not act on the high seas and therefore the court lacked subject-matter jurisdiction over those charges; (2) to dismiss all counts for lack of personal jurisdiction because Shibin was forcibly seized in Somalia and involuntarily removed to the United States; (3) to dismiss the non-piracy counts involving the Marida Marguerite because “universal jurisdiction” did not extend to justify the U.S. government’s prosecution of those crimes; and (4) to exclude FBI Agent Kevin Coughlin’s testimony about prior statements made to him by a Somali-speaking witness through an interpreter because the interpreter was not present in court.

We conclude that the district court did not err in refusing to dismiss the various counts of the indictment and did not abuse its discretion in admitting Agent Coughlin’s testimony. Accordingly, we affirm.

In the course of explaining why jurisdiction was proper over the non-piracy counts regardless of the presence or absence of universal jurisdiction, the Court explains that “Shibin was involved in hostage taking on the Marida Marguerite and was later found in Virginia, where he was prosecuted.” This is something of an understatement in normal parlance, but makes sense in legal parlance. As the court explains earlier in its opinion, Shibin’s presence in the United States satisfies the “found in” requirement even though that presence was involuntary on his part.

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The Fourth Circuit last week unanimously affirmed the dismissal of a Free Speech and related civil contempt claim brought by a Confederate veterans’ group who wish to fly the Confederate flag on city-owned flag standards in Lexington, Virginia during the group’s Lee-Jackson Day parade. Judge King wrote the opinion for the court in Sons of Confederate Veterans, Virginia Division v. Lexington, in which Judge Diaz and Judge Floyd joined. (For prior coverage, including links to early news stories, see How Appealing.)

Based on the facts described in the opinion, the Fourth Circuit’s decision seems to reach the right outcome on the First Amendment and civil contempt claims (although it would have been helpful to know a little bit more about the wording of the earlier consent decree). 

The interesting First Amendment issue raised by the case is the extent to which government motive matters when the government converts a designated public forum to a nonpublic forum. The relevance of legislative motivation is one of the most vexing issues in constitutional law, but the panel opinion does not provide too much discussion of this issue. 

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[Update 1: With commendable quickness, NPR has posted a correction to the web version of the story discussed below. Even the new version would benefit from additional qualification in contrasting the reaction between "political conservatives" and "academic and judicial conservatives," but no point in nitpicking now.]

[Update 2: Nina Totenberg has posted a classy apology and explanation for her listeners/readers. She explains that the misattribution of the quotation resulted from a mix-up in her notes on the excellent (but lengthy) panel. My memory of the quotation and context may have been more vivid than other listeners' because the lawyer sitting next to me (whom I do not know) nodded and muttered agreement when Professor McGinnis explained that Windsor's failure to articulate a rule of decision can be seen in the fact that the separate dissents of Chief Justice Roberts and Justice Scalia both provided plausible but vastly different accounts of the import of the majority's holding.)]

Even Totenberg nods.

Nina Totenberg’s end-of-the-term review (HT: How Appealing) includes an extended rip on the Supreme Court’s 5-4 Voting Rights Act decision in Shelby County v. Holder, highlighting criticism by “academic and judicial conservatives.” The quoted critics are Charles Fried, Michael McConnell, and John McGinnis.

One of the most stinging quotations is attributed to McGinnis. Totenberg’s story characterizes McGinnis as arguing that “the court’s conservatives let their own policy disagreements with Congress trump the clear meaning of the Constitution and the post Civil War amendments.” She then quotes McGinnis’s comments at a recent judicial conference: “I’m sorry to say I think this opinion was as singular a failure as I’ve seen in the history of the Supreme Court.”

The quotation comes from McGinnis’s comments on the Supreme Court review panel at the Fourth Circuit Judicial Conference. McGinnis did utter those words, but he was not talking about Shelby County. Instead, he was talking about Justice Kennedy’s opinion for the Court in United States v. Windsor. That’s a big difference.

A video clip of McGinnis’s remarks is available at http://www.c-spanvideo.org/clip/4457472. McGinnis’s comments are from roughly the 1:40 to 3:30 marks. The “singular failure” quotation is near the conclusion of those comments. McGinnis argues that Windsor is troubling “as a matter of craft” because it fails the “basic requirement of the rule of law . . . to articulate a rule of decision.”

McGinnis did comment on Shelby County during the same panel, but his comments were not nearly as critical as those on Windsor. In fact, McGinnis described the decision in rather sympathetic terms. He appealed to McCulloch‘s “pretext” limitation on congressional power and contended that the preclearance requirement decreased the competitiveness of elections by resulting in the “packing” of districts and reducing the ability of states to experiment with districting. The video of the full panel is available at http://www.c-spanvideo.org/program/313594-1. McGinnis’s comments on Shelby County begin around 19:45.

In the NPR story as it aired, the McGinnis clip on Windsor follows directly after the NPR story’s misquotation of his views on Shelby County. It is difficult to understand how this kind of mistake was not only made initially but also not caught in fact-checking.

Totenberg’s other critical quotations about Shelby County seem correct given their content and context. But while it may be true that “two out of three ain’t bad” in some circumstances, this is not one of them.

The idea that “academic and judicial conservatives” think Shelby County is wrong has already begun to spread. Rick Hasen’s influential Election Law Blog, for example, posts an extended excerpt from the Totenberg story under the post title, “Conservatives Criticize Shelby County Reasoning.”

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The Fourth Circuit issued its opinions yesterday in two pregnancy center compelled speech cases: Centro Tepeyac v. Montgomery County and Greater Baltimore Center for Pregnancy Concerns, Inc. v. Baltimore. The decisions tracked the tentative predictions I made after observing oral argument: a narrow, procedure-based decision to vacate and remand the permanent injunction against enforcement in the Baltimore case, and affirmance of the preliminary injunction against enforcement in the Montgomery case.

In the Baltimore case, Judge King wrote for an eight-judge majority (consisting of himself, Chief Judge Traxler, and Judges Motz, Gregory, Duncan, Davis, Keenan, Wynn, Floyd, and Thacker). Judge Niemeyer authored a dissenting opinion, in which Judges Wilkinson, Shedd, and Agee joined. Judge Wilkinson authored a separate dissent.

In the Montgomery County case, Judge King wrote for a nine an eleven-judge majority. Judge Gregory and Judge Davis, who did not hear the Baltimore case, joined the judges from the Baltimore case, as did Judge Wilkinson. In addition to joining Judge King’s opinion, Judge Wilkinson wrote a solo concurrence. Judges Niemeyer, Shedd, and Agee dissented. [Editorial note: This paragraph edited from the original version to correct error noted in the first comment.]

The combined opinions add up to about 140 pages and it’s July 4th, so detailed legal analysis will have to wait.

With respect to First Amendment law standing alone, my preliminary impression is that the decisions have the potential to inject confusion into what should otherwise be a straightforward application of First Amendment law for these ordinances. As Judge Wilkinson notes in his Greater Baltimore dissent, “[t]here has never been any dispute that the Ordinance forces organizations like the Center to communicate a message they would otherwise never utter. Given the dangers of compelled speech, this kind of mandated disclosure should be a last resort, not a first recourse.” Yet the majority opinion remands to allow Baltimore to try to establish that its ordinance was somehow a regulation of commercial speech. In support of this decision, the court provides a diffuse statement of the law surrounding commercial speech. The opinion does not endorse the application of the standard of review appropriate to commercial speech but instead asserts that the district court erred by rejecting application of this standard of review based on insufficient facts.

Instead of training its analysis on the speech actually regulated–the speech that takes place in the centers where the government-ordered messages must be posted–the majority opinion sweeps in the need for considering things like “the scope and content of [the Center's] advertisements.” This focus apparently derives from Fargo Women’s Health Organization, Inc. v. Larson, 381 N.W. 2d 176 (1986), which the majority discusses in detail. But that case dealt with a preliminary injunction that prohibited deceptive advertising rather than legislation compelling delivery of the government’s message in conjunction with in-person speech about pregnancy. Indeed, the North Dakota Supreme Court struck out the compelled-speech portion of the underlying injunction in Larson even though–unlike the Baltimore and Montgomery County ordinances–that injunction directly regulated advertising rather than the in-person provision of information. (It may also be worth noting that this non-binding decision of the North Dakota Supreme Court predated the binding decision of the Supreme Court of the United States discussing the boundaries of commercial speech doctrine in Riley v. National Federation of the Blind, 487 U.S. 781 (1988).)

Although en banc rehearing is typically reserved for “questions of exceptional importance” (FRAP 35), it does not follow that en banc decisions actually resolve questions of exceptional importance. The Greater Baltimore decision does not. From the perspective of First Amendment law, its principal defect is failure to delineate the operative legal principles for separating commercial speech from non-commercial speech and explain why those principles called for the kind of discovery it thought necessary. To the extent that it does discuss these principles, the majority’s analysis drifts from focus on the nature of the speech directly burdened by the in-center positing requirement. But this drift is largely a consequence of its focus on discovery and procedure rather than elaboration of First Amendment law. Hopefully the opinion’s diffuse discussion of commercial speech doctrine may at least avoid doing serious damage to First Amendment law precisely because it is so diffuse.

Nor does the Centro Tepeyac decision resolve any questions of exceptional importance. Its affirmance of the district court’s conclusion that strict scrutiny applies to the challenged ordinance is noteworthy but uncontroversial. Had it not relied so heavily on the “abuse of discretion” standard of review, parts of that opinion would be more problematic. The challengers bore the burden of showing a likelihood of success on the merits, but once the court properly recognized that strict scrutiny was necessary, it should have required the government to demonstrate narrow tailoring. It did so, in part. But as Judge Niemeyer points out in dissent, this should have included consideration of less restrictive alternatives to compelled speech for both sentences of the compelled speech.

Given how little these decisions actually decided as a matter of First Amendment law, it seems the principal legal effect of the court’s en banc consideration in that area was to deprive the panel opinions in these cases of their precedential force. As someone who thinks those panel opinions were correctly decided in the first instance, that consequence is unfortunate. But the litigation will continue. And barring some surprising fact development or substantial change in governing law, I remain hopeful that the cases will ultimately end up yielding results close to the initial panel decisions.

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The Supreme Court’s grant of certiorari today in McCullen v. Coakley is important for First Amendment law, although likely to be overlooked in most of the reporting on today’s other important grants and opinions. One of the main items of interest from early reporting is what this grant might mean for the future of Hill v. Colorado, a terrible First Amendment decision issued by the Court in 2000. As much as I would like to see the Court overrule Hill, it does not need to do so in order for the petitioners in McCullen to prevail on their First Amendment challenge. And while I believe both that the McCullen petitioners should win and also that the Court should overrule Hill, I think it much more likely that the petitioners will win without the Court overruling Hill.

There are important differences between the Colorado law upheld in Hill and the Massachusetts law challenged in McCullen. These statutory differences could have significance for both the content neutrality and tailoring determinations, as laid out in the petitionHill addressed the constitutionality of a floating buffer zone that prohibited close physical approaches without consent in an area surrounding health care facilities. McCullen involves the constitutionality of fixed exclusion zones at freestanding abortion clinics. The law challenged in McCullen expressly exempts agents and employees of the abortion clinics from its reach, and operates to prohibit stationary handbilling and stationary speech from a conversational distance within the exclusion zone. Another state law already prohibits obstruction to clinic entrances, but that law preserves speakers’ “rights to engage in peaceful picketing which does not obstruct entry or departure.”

As explained in an  amicus brief in support of certiorari that I co-authored and  filed on behalf of Professors Richard Garnett, Michael Stokes Paulsen, and Eugene Volokh in this round of McCullen (as well as an amicus brief in support of certiorari on behalf of a slightly larger group of law professors in an earlier round of McCullen), the Massachusetts law fails narrow tailoring even if it is held to be content neutral. I think it unlikely that a majority of the Court would wish to further ensconce the dubious content-neutrality reasoning of Hill, but there may nonetheless be a majority of the Court in favor of leaving it undisturbed for the time being. Both goals can be accomplished by assuming without deciding that the challenged Massachusetts law is content neutral. While that would not be the optimal First Amendment outcome, it would also be an improvement over the legal status quo.

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Having recently solicited critical comments on a draft paper, I enjoyed reading John Marshall’s comments to an author who had sent him a copy of his book on political economy:

I have read your ‘Thoughts on Political Economy’ with great attention and pleasure, and am gratified that an American has taken up the subject. It is not less important than abstruse, and presents perhaps as many questions, the solution of which, on full investigation, will be different from our impressions on a first view, as any science whatever. You have thought upon it profoundly, and if I am not sure that every proposition you law down is entirely accurate, I am convinced that many are, and that all deserve consideration.

Ltr from John Marshall to Daniel Raymond, Sept. 25, 1821.

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