Right to Life submits that the threat of enforcement inherent in the statute chilled its participation in the July 2003 special election and will continue to chill its speech unless the federal courts provide injunctive relief. “A plaintiff who mounts a pre-enforcement challenge to a statute that he claims violates his freedom of speech need not show that the authorities have threatened to prosecute him; the threat is latent in the existence of the statute.” Majors v. Abell, 317 F.3d 719, 721 (7th Cir. 2003) (internal citations omitted); see Virginia v. Am. Booksellers Ass’n Inc., 484 U.S. 383, 393 (1988). The instant case, however, presents a unique circumstance because the statute at issue has been declared unconstitutional by a district court and that ruling was not appealed.

Although it is highly unusual to seek injunctive relief when a judgment that was not appealed has already rendered a challenged statute unconstitutional, Right to Life’s argument in favor of Article III standing is not “frivolous,” as the Board contends. Right to Life presents a two-step argument. First, Right to Life points out that the injunction entered against the Board to prevent enforcement of the statute against theWisconsin Realtors Ass’n plaintiffs did not extend to Right to Life. Indeed, district courts lack the authority to enjoin the “enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs.” McKenzie v. City of Chicago, 118 F.3d 552, 555 (7th Cir. 1997) (quoting Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975)); see also Fed. R. Civ. P. 65(d) (“Every order granting an injunction . . . is binding only upon the parties to the action . . . .”). Right to Life is correct in asserting that the injunction against enforcement granted in the Wisconsin Realtors Ass’n case does not protect it, a non-party to the Wisconsin Realtors Ass’ncase.

The second step of Right to Life’s argument is that the declaratory judgment granted in the Wisconsin Realtors Ass’n case does not limit the power of the Board to bring prosecutions under the statute. Certainly, the statute cannot be repealed by a district-court opinion; only the Wisconsin legislature can repeal the statute. Furthermore, a district court’s declaration that the statute is unconstitutional does not automatically stop state officials from trying to enforce the statute. Coupled with the Board’s refusal to issue an advisory opinion, Right to Life reasons that this is enough to present a live controversy to the federal courts.

Right to Life’s argument, however, fails to tie this theoretical harm to an actual and imminent threat of enforcement. The Board did not appeal the Wisconsin Realtors Ass’n case. Implicitly, the Board has conceded that the statute is unconstitutional. The State’s Attorney General conceded before the Wisconsin Realtors Ass’n litigation that the statute was unconstitutional in its petition to the Wisconsin Supreme Court to determine the constitutionality of Act 109. Right to Life makes no effort to satisfy its burden of persuasion by showing that any Wisconsin official, let alone the Board, has ever tried to enforce a statute in these circumstances.

The only seemingly relevant difference between this case and Platinum Sports is that the plaintiffs in the later cases in Platinum Sports were represented by the same lawyer. But this difference makes no difference. For a while, some circuit courts had applied a “virtual representation” doctrine under which representation by the same lawyer might have made a difference in the preclusion analysis. But the Supreme Court rejected the doctrine of virtual representation in Taylor v. Sturgell, 553 U.S. 880 (2008).

The basic situation consists of three cases: (1) Attorney A, representing Client X, files a complaint seeking declaratory and injunctive relief against Governor, alleging that a state law is unconstitutional–on its face and as applied–under the First Amendment; (2)  Attorney A, representing Client Y, files a second complaint seeking declaratory and injunctive relief against Governor and Attorney General, making the same constitutional challenge; and (3) Attorney A, now representing Client Z and seeking to represent a class of approximately 400 similarly situated businesses covered by the claim, files a complaint seeking declaratory and injunctive relief against Governor and Attorney General, making the same constitutional challenge as in the first two cases.

The timeline of relevant events in these cases is as follows:

• April 25, 2011: Complaint in case (1) is filed.
• July 14, 2011: Hearing in case (1) on motion for preliminary injunction and motion to dismiss.
• July 20, 2011: Complaint in case (2) is filed.
• July 26, 2011: District court is case (1) grants preliminary injunction and denies motion to dismiss.
• August 25, 2011, Case (1) and case (2) are terminated by a final judgment in Plaintiffs’ favor, together with injunctions against enforcement of the statute.
• October 21, 2011: Complaint in case (3) is filed.

The Sixth Circuit held in Platinum Sports, Inc. v. Snyder that the plaintiff business in case (3) lacked standing because it suffered no cognizable injury. I think that bottom-line conclusion is correct, but for a different reason than provided in Judge Sutton’s opinion for the court.

Let’s begin with common ground. The mere “on-the-books existence” of a statute is not enough to create legally cognizable injury. The statute must have some kind of injurious effect that a federal court is capable of redressing. Federal courts do not take statutes off the books. They enter judgments and remedies that prevent enforcement of laws. Judge Sutton’s statement of these relevant principles seems just right: “[T]he question is whether the claimant has an ‘actual and well-founded fear that the law will be enforced against them.’ Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988). Absent some ‘credible threat’ of enforcement, no injury exists. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).”

The Platinum Sports opinion reasons that there was no credible threat of enforcement against the plaintiff in case (3) at the time the complaint was filed because the statute had already been declared facially unconstitutional and its enforcement had been enjoined in an order agreed to by the Governor and the Attorney General. The assessment that there was no credible threat of enforcement is probably right, but not for the reason given in the opinion.

The opinion’s analysis turns on an explication of facial challenge doctrine:

A party who brings a facial challenge to a law “seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question.” City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999). A successful facial challenge invalidates a law in all of its applications, “forbidd[ing]” any enforcement of it. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). The upshot is that a State may not enforce such a law against anyone.

But what constitutes a “successful facial challenge”?

Consider the order in case (2) (which is the same in all material respects as the order in case (1)): “IT IS HEREBY ORDERED that judgment declaring that M.C.L. 252.318a violates U.S. Const., Amend. I (the First Amendment to the United States Constitution) is entered for Plaintiff and Defendants are permanently ENJOINED from enforcing M.C.L. 252.318a.”

Suppose that the defendants believe that the district court’s understanding of the First Amendment in cases (1) and (2) is wrong. Do the judgments and injunctions in those cases protect all other SOBs in the state against enforcement of the law?

The Sixth Circuit found the answer to this question in facial challenge doctrine, stating: “[T]he district court’s orders [in cases (1) and (2)] declared the laws facially unconstitutional, necessarily prohibiting their enforcement against anyone, including the plaintiff [in case 3].” Judge Sutton’s opinion for the court appears to assume that the injunctions in these cases authoritatively prohibit enforcement against anybody else, but the reason for this assumption is unclear:

In this instance, the district court entered a stipulated final judgment declaring the two laws facially unconstitutional and enjoining the Governor and Attorney General from enforcing either law. Nor is there any reason to fear the Governor or Attorney General will sidestep these orders. They agreed to their entry. If any doubt remained about the point, the Governor and Attorney General eliminated it in this case. In their appellate brief, they have recognized the “provisions to be unconstitutional,” Br. at 22, and have promised that they “will not be enforced,” id. at 16. Anything in this world is possible, we suppose. But the legal possibility that this Governor or this Attorney General will enforce these laws in the face of these injunctions is: zero.

While the opinion states that the “legal possibility” of enforcement is “zero,” that is distinct from a claim about “legal permissibility.” The opinion appears to assume that facial challenge doctrine can somehow expand the binding legal effect of a judgment or remedy. But  facial challenge doctrine cannot expand the binding legal effect of a judgment or remedy because the theory of constitutional infirmity underlying a particular judgment does not itself bind except through embodiment in a remedy or through preclusion or precedent.  In order to know the binding legal effect of the district court’s ruling in cases (1) and (2), it is therefore necessary to know the preclusive effect of the underlying judgment and the terms and permissible reach of the injunction issued. The declaration of facial unconstitutionality can only reach as far as these other doctrines permit it to reach. (Another means by which judicial declarations of law can bind in courts is through stare decisis, but that doctrine has no application here because a district court ruling has no precedential effect for other cases.)

To see why this distinction is important, suppose that the AG (enjoined in cases (1) and (2) beginning in August 2011) had sent a letter in September 2011 threatening enforcement of the ordinance against Z (the plaintiff in case (3)). Would Z have had standing to file a federal lawsuit seeking declaratory and injunctive relief on October 21, 2011? Yes, Z would have had standing. The injunctions in cases (1) and (2) protect X and Y (the plaintiffs in those cases), but these injunctions do not themselves eliminate the threat of enforcement against Z. See Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (“[N]either declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to prosecute others who may violate the statute.”). (It may also be worth adding that, not only would Z have had standing, but that if Z had wanted a federal forum for its lawsuit, Z should have filed suit quickly after receiving the threat letter because the initiation of an enforcement action in state court can result in Younger abstention.)

There was no threat letter here, so why does any of this make a difference? The comparison reveals that the real legal basis for the absence of any threat of enforcement is not the “successful facial challenge” in case (1) or (2), but the defendants’ agreement that the statute is unconstitutional and their promise (rather than their legal obligation) not to enforce the statute. The fact that they made this agreement in connection with a stipulated judgment and an order to pay over $20,000 in attorneys’ fees makes their commitment to non-enforcement credible.

This discussion of the reasoning underlying the no-standing dismissal in Platinum Sports is not just idle nitpicking about a minor issue. The effectiveness of agreement about unconstitutionality to preclude standing by eliminating threatened enforcement goes to the very fundamentals of pre-enforcement adjudication of constitutional challenges to constitutionally questionable laws. Consider, for example, a pre-enforcement challenge to a State’s partial-birth abortion prohibition in which the sole theory of constitutional infirmity is that the statute is unconstitutional as applied to performance of the constitutionally protected D&E procedure. (Such a limited claim would be unusual but not completely implausible given the Supreme Court’s statement of a preference for as-applied challenges in this area.) Suppose the Attorney General’s position is that the statute does not criminalize the D&E procedure, but even if it did, the State would never use the statute to prosecute for the performance of a D&E because the Attorney General agrees that the statute would be unconstitutional as applied to D&Es. Suppose that no prosecutor can initiate a prosecution without the AG’s approval. If an agreement not to enforce precludes standing, then there would be no standing to bring this challenge. Or would there be?

On the 100th anniversary of the day on which John Marshall took his seat as Chief Justice of the United States, Holmes–presiding as Chief Justice of the Massachusetts Supreme Judicial Court–delivered an answer to a motion that the court adjourn. On paper, his words are brutal. I wonder what impression they conveyed to his live audience.

Holmes’s speech included words of apparent praise for Marshall: “[W]hen I consider his might, his justice, and his wisdom, I do fully believe that if American law were to represented by a single figure, sceptic and worshipper alike would agree without dispute that the figure could be one alone, and that one, John Marshall.” But a close reading reveals that Holmes praised power, not  John Marshall. For Holmes was no worshipper of law. Marshall was a representative figure of American law; but to Holmes the sceptic of American law, Marshall represented the ability of an idea to “shoot across the world the electric despotism of an unresisted power.”

Holmes insisted that it “most idle” and “futile” to consider a man apart from his circumstances, for a man is part of a larger organism made up of surrounding circumstances. The man is equivalent to an inch of mucous membrane or a cube from the brain, not a tenor speaking or an orator speaking. Shifting from physiological to martial imagery, Holmes analogized the “great man” to one who happens to find himself at “a strategic point in the campaign of history”: “A great man represents a great ganglion in the nerves of society, or to vary the figure, a strategic point in the campaign of history, and part of his greatness consists in his being there.”

Linking Marshall more specifically to Colonel Robert Gould Shaw (who would have been familiar with Holmes’s Boston audience for leading the black soldiers of the Massachusetts 54th regiment in their hopeless death charge on Fort Wagner), Holmes continued:

I no more can separate John Marshall from the fortunate circumstance that the appointment of Chief Justice fell to John Adams, instead of to Jefferson a month later, and so gave it to a Federalist and loose constructionist to start the working of the Constitution, than I can separate the black line through which he sent his electric fire at Fort Wagner from Colonel Shaw. When we celebrate Marshall we celebrate at the same time and indivisibly the inevitable fact that the oneness of the nation and the supremacy of the Constitution were declared to govern the dealings of man with man by the judgments and degrees of the most august of courts.

What does it mean to celebrate “the oneness of the nation and the supremacy of the Constitution”? It depends. For setting aside a day in honor of this “great judge” is a symbol. “[A]nd what shall be symbolized by any image of the sight depends upon the mind of him who sees it.”

To a Virginian, the setting aside symbolizes “the glory of his glorious state.”

To a patriot, it symbolizes “the fact that time has been on Marshall’s side, and that the theory for which Hamilton argued, and he decided, and Webster spoke, and Grant fought, and Lincoln died, is now our cornerstone.”

And to the lawyer, “it stands for the rise of a new body of jurisprudence, by which guiding principles are raised above the reach of statute and State, and judges are entrusted with a solemn and hitherto unheard-of authority and duty.”

To Holmes, the setting aside of this day on honor of Marshall marks something powerful and dark:

To one who lives in what may seem to him a solitude of thought, this day–as it marks the triumph of a man whom some Presidents of his time bade carry on his judgments as he could–this day marks the fact that all thought is social, is on its way to action; that, to borrow the expression of a French writer, every idea tends to become first a catechism and then a code; and that according to its worth his unhelped meditation may one day mount a throne, and without armies, or even with them, may shoot across the world the electric despotism of an unresisted power.

We see here an earlier version of Holmes’s more famous statement, delivered in dissent more than twenty years later, that “[e]very idea is an incitement.” Gitlow v. New York, 268 U.S. 652, 673 (1925). But unlike the “redundant discourse” before the Court in Gitlow–discourse that “had no chance of starting a present conflagration”–the discourse of Marshall and “the men of his generation” successfully invested an iconic American symbol with death-dealing power. This setting aside of a day in honor of Marshall, Holmes concluded, “is all a symbol, if you like, but so is the flag”:

The flag is but a bit of bunting to one who insists on prose. Yet, thanks to Marshall and to the men of his generation–and for this above all we celebrate him and them–its red is our lifeblood, its stars our world, its blue our heaven. It owns our land. At will it throws away our lives.

And thus concludes Holmes’s memorial words for Marshall: “The motion of the bar is granted, and the court is adjourned.”

A revisionary power is meant as a check to precipitate, to unjust, and to unconstitutional laws. These important ends would it is conceived be more effectually secured, without disarming the Legislature of its requisite authority, by requiring bills to be separately communicated to the Exec: & Judicy. depts. If either of these object, let 2/3, if both 3/4, of each House be necessary to overrule the objection; and if either or botii protest agst. a bill as violating the Constitution, let it moreover be suspended, notwithstanding the overruling proportion of the Assembly, until tiiere shall have been a subsequent election of the H. of Ds. and a repassage of the bill by 2/3 or 3/4 of both Houses, as the case may be. It sd. not be allowed the Judges or the Ex to pronounce a law thus enacted, unconstitul. & invalid.

In the State Constitutions & indeed in the Fedl. one also, no provision is made for the case of a disagreement in expounding them; and as the Courts are generally the last in making their decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Dept paramount in fact to the Legislature, which was never intended, and can never be proper.

Putting aside the reasons for and against the various proposals, it is worth noting Madison’s description of what “judicial review.” It consists of a court’s decision to refuse or not to refuse to execute a law. Nothing more. But also nothing less. For while this description of “judicial review” may seem somewhat weaker than the ability to “strike down” or “negative” laws, it is still an awesome power. In Madison’s view, this arrangement “makes the Judiciary Dept paramount in fact to the Legislature, which was never intended, and can never be proper.”

The Chief Justiceship of the United States is a station full of perplexing duties, and delicate responsibilities, and requiring qualities so various, as well as so high, that no man, conscious of human infirmity, can fail to approach it with extreme diffidence and distrust of his own competency. It is the very post, where weakness, and ignorance, and timidity must instantly betray themselves, and sink to their natural level. It is difficult even for the profession at large fully to appreciate the extent of the labors, the various attainments, the consummate learning, and the exquisite combination of moral qualities, which are demanded to fill it worthily.

Joseph Story, Life, Character, and Services of Chief Justice Marshall: A Discourse Pronounced on the 15th of October, 1835, at the Request of the Suffolk Bar, The Miscellaneous Writings of Joseph Story (William W. Story, ed., 1852) 639.

As this 2005 Wall Street Journal article explains, the Little Sisters of the Poor have “an odd business plan” for their homes for the elderly poor: “Beg for help, lavish it on residents.” But more confounding than the Little Sisters’ business plan is the idea that the federal government would force them to arrange their health coverage for their homes’ employees to ensure coverage of female sterilization and the free flow of all FDA-approved contraceptives, including abortifacient drugs and devices.

President Obama is a college sports fan, but he should know better than to think that the Little Sisters of the Poor are simply “a euphemism in college sports to describe a weak opponent.” The Little Sisters are real; the HHS Mandate burdens their religious exercise; and the Obama Administration has the power to lift that burden. Lifting that burden is also the President’s duty under federal law.

Some excerpts from the comments:

The Little Sisters of the Poor are an international Congregation of Catholic women religious serving 13,000 needy elderly people of all faiths in thirty-one countries around the world. Thirty of our homes for the aged, which together care for over 2,500 elderly poor, are located in the United States. We are filing these comments because the HHS Mandate threatens the operation of these homes. After the safe harbor ends, we may be subjected to steep financial penalties for not changing our health coverage arrangements at these homes to ensure coverage of female sterilization and all FDA-approved contraceptives, including abortifacient drugs and devices.

* * *

Each of our homes is a separate corporate entity that files an annual Form 990 for purposes of compliance with the tax code. Because each home is a “large employer” under the Patient Protection and Affordable Care Act and is not exempt from filing under the Code provision that currently defines the scope of the proposed “religious employer” exemption, the group health plan offered by each home is not exempt from the HHS Mandate under the proposed exemption.

The fact that we have separately incorporated the homes in which we carry out our ministry to the elderly poor does not deprive our order’s religious exercise of its religious nature. Saint Jeanne Jugan, our foundress and the first Little Sister of the Poor, began her ministry by bringing an elderly and infirm woman into her own apartment and caring for her there. Since 1839, we have continued this tradition with our homes, which now operate in one of the most highly regulated segments of care providers. We have always done our best to comply with all government regulations that apply to our homes and with the highest standards of nonprofit financial stewardship. The Form 990 is an important tool for financial accountability in our religious charitable work, but it makes no sense to use the requirement to file it as a disqualifier for the religious employer exemption.

The Little Sisters of the Poor should receive a religious exemption based on what we believe and what we do rather than the corporate forms through which we carry out our ministry. The Notice of Proposed Rulemaking observes that a church should not lose its exemption simply because it “maintains a soup kitchen that provides free meals to low-income individuals.” We agree. The same should hold true for our religious order. We should not be deprived of an exemption because we maintain homes to provide shelter and loving care to the elderly poor.

* * *

Although our homes qualify as “eligible organizations,” the proposed accommodation in the Notice of Proposed Rulemaking does not address the situation that they face under the HHS Mandate. The Notice identifies three alternative ways in which the third-party administrator of a self-insured plan might be made responsible for arranging the objectionable coverage. Each of these alternatives presupposes that the third-party administrator itself has no religious objection to arranging that coverage. But Christian Brothers Services, as another Catholic organization, shares our commitment to Catholic teaching and also objects to the HHS Mandate. Accordingly, the proposed accommodation does not offer us a path to compliance.

The federal government should not force us to counteract through the health benefits that we arrange for our employees the very same Gospel of Life that we attempt to live out in communion and solidarity with the needy elderly.

* * *

The Little Sisters of the Poor support the expanded exemption advocated by the United States Conference of Catholic Bishops. We hope that it is unnecessary for us to join the scores of employers that have already resorted to the federal courts for protection. But we are only one group among hundreds who will be adversely affected by the HHS Mandate and we respectfully request the Departments to reach a just resolution that respects the religious freedom and conscience rights of all.

First, some background. I argued in my first post on the case that the panel majority misread Lawrence v. Texas as requiring facial invalidation of the “anti-sodomy provision” in Virginia’s “crimes against nature” statute. One basis for my argument was the claim that “reasoning throughout [Lawrence] is all about the petitioners’ personal interests in liberty and privacy.” One commenter on that post criticized its reasoning by asserting that “bending over backwards to say that the facts here are slightly different and that should be sufficient is not a reasonable position to take because it is based on narrowing Justice Kennedy’s entire due-process analysis to one case and one case only.” That is not the position I meant to adopt. Rather, the force of Lawrence as a precedent rests on its ratio decidendi, which is an understanding of the constitutionally protected personal liberty interests of two adults to engage in certain private, consensual conduct.

Apart from what I have previously posted on the subject, support for my reading of the case can be seen in Justice Kennedy’s description of how the case ought to be decided: “We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution” (emphasis added). If one reads Lawrence in this way, then the Virginia court’s disposition of the petitioner’s challenge to his conviction was plainly not contrary to or an unreasonable application of clearly established law.

MacDonald contends the sodomy statute, Code § 18.2-361(A), is facially unconstitutional because it violates the Due Process Clause of the Fourteenth Amendment. In accord with our previous decisions, we hold that MacDonald lacks standing to assert this claim. See McDonald v. Commonwealth, 48 Va. App. 325, 329, 630 S.E.2d 754, 756 (2006) (“[W]e will only consider the constitutionality of Code § 18.2-361(A) as applied to appellant’s conduct.”); Singson v. Commonwealth, 46 Va. App. 724, 734, 621 S.E.2d 682, 686 (2005) (defendant lacks standing to challenge statute generally); Tjan v. Commonwealth, 46 Va. App. 698, 706, 621 S.E.2d 669, 673 (2005) (same); see also Grosso v. Commonwealth, 177 Va. 830, 839, 13 S.E.2d 285, 288 (1941) (“It is well settled that one challenging the constitutionality of a provision in a statute has the burden of showing that he himself has been injured thereby.”); Coleman v. City of Richmond, 5 Va. App. 459, 463, 364 S.E.2d 239, 241 (1988) (“generally, a litigant may challenge the constitutionality of a law only as it applies to him or her”).

According to the Fourth Circuit panel opinion, however, one discrete textual provision of Virginia’s statute was facially unconstitutional, and “the state court’s standing determination, as endorsed by the district court, was contrary to and involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States” (emphasis added).

2. Nine days after the Fourth Circuit issued its opinion in MacDonald v. Moose, the court issued an opinion in Woollard v. Gallagher. Woollard was a Second Amendment challenge to Maryland’s “good and substantial reason” permitting requirement for gun possession outside one’s home. The district court in Woollard had held that this requirement was facially unconstitutional. In addition to rejecting Woollard’s claim that the permitting requirement was unconstitutional as applied to him, the panel opinion held that Woollard lacked standing to bring his facial challenge:

Because we conclude that the good-and-substantial-reason requirement is constitutional under the Second Amendment as applied to Appellee Woollard, we also must reject the Appellees’ facial challenge. See Masciandaro, 638 F.3d at 474. As the Supreme Court has explained, “a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973); see also Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (“It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop.”).

On its face, this reasoning looks just like the reasoning that the Fourth Circuit held was “contrary to and involved and unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States” when that reasoning was used by Virginia’s Court of Appeals in MacDonald.

3. The tension between the two cases cannot be explained on the grounds that the Woollard panel was unaware of the recent MacDonald decision. According to the date listed on the opinions, the two appeals were argued on the same day and two out of the three judges were the same in both cases (Judge King and Judge Diaz). And most importantly, Judge King authored both opinions.

4. The doctrine surrounding facial and as-applied challenges is notoriously murky. Some may view it as complex; others may view it as simply confused. In my view, the labels “facial” and “as-applied” hurt more than they help insofar as each lacks a stable meaning across cases. But to the extent that MacDonald’s facial challenge was an overbreadth-type (“bottom-up”) challenge, in which facial unconstitutionality depends on the proportion of unconstitutional applications to constitutional applications, then the reasoning used by the Virginia Court of Appeals in refusing to adjudicate the challenge seems unimpeachable (as the Fourth Circuit’s use of that reasoning in Woollard would seem to indicate). (For a discussion of the distinction between valid-rule  (or “top-down”) facial challenges and overbreadth-type (or “bottom-up”) facial challenges, see Richard H. Fallon, Jr., Fact and Fiction about Facial Challenges, 99 Cal. L. Rev. 915, 931 (2011), a law review article cited by Judge King’s majority opinion in MacDonald.)

5. According to the portion of the appellant’s brief quoted by the panel opinion in MacDonald, the facial challenge in that case was an overbreadth-type challenge:

MacDonald maintains that he possesses standing to pursue his facial challenge under the Due Process Clause because the anti-sodomy provision was rendered unconstitutional by Lawrence. He relies on established Supreme Court authority for the proposition that standing exists: “where the statute in question has already been declared unconstitutional in the vast majority of its intended applications, and it can fairly be said that it was not intended to stand as valid, on the basis of fortuitous circumstances, only in a fraction of cases it was originally designed to cover.” Br. of Appellant 14 (quoting United States v. Raines, 362 U.S. 17, 23 (1960)).

6. Virginia’s petition for en banc review is pending at the court. Its principal focus is the application of 2254(d) with respect to the state court’s as-applied understanding of Lawrence v. Texas. If the Fourth Circuit does grant en banc review, perhaps it will also take the opportunity to clarify the law surrounding facial and as-applied challenges more generally.

A split panel of the Fourth Circuit yesterday granted habeas relief to a forty-seven year-old Virginia man convicted of criminally soliciting oral sex from a seventeen year-old girl. (HT and with link to AP coverage: Howard Bashman at How Appealing) The court held that the conviction was invalid because the predicate felony of sodomy was based on an unconstitutional provision of state law. Judge King wrote the opinion for the court in MacDonald v. Moose, in which Judge Motz joined. Judge Diaz dissented.

The panel majority reasons that the Virginia “anti-sodomy provision” is facially unconstitutional under Lawrence v. Texas because of Lawrence’s reasoning about Bowers v. Hardwick, which the Fourth Circuit describes as having involved a facial challenge to a materially indistinguishable Georgia statute. According to the panel opinion, “the invalid Georgia statute in Bowers is materially indistinguishable from the [Virginia] anti-sodomy provision being challenged here.” And although the Supreme Court upheld the materially indistinguishable Georgia statute against a facial constitutional challenge in Bowers, the Supreme Court in Lawrence v. Texas “recognized that the facial due process challenge in Bowers was wrongly decided.”  In other words (as Judge Diaz fairly reconstructs the majority’s argument in his dissent), “the majority reasons that MacDonald’s facial challenge must succeed just as–according to Lawrence–the facial challenge in Bowers should have.”

This decision is obviously mistaken about Bowers and Lawrence, and profoundly mistaken about the nature of constitutional adjudication.

To begin with, Bowers did not involve a “facial due process challenge.” The opinion for the Court in Bowers explicitly states: “The only claim properly before the Court . . . is Hardwick’s challenge to the Georgia statute as applied to consensual homosexual sodomy. We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy.” This mistake alone renders the Fourth Circuit’s reasoning unsustainable on its own terms. The panel opinion reasons that the Virginia statute is facially unconstitutional because the Georgia statute is facially unconstitutional, but Bowers simply did not deal with the alleged facial unconstitutionality of Georgia’s statute.

The Fourth Circuit’s majority opinion is also wrong to describe Lawrence as resolving a claim of facial unconstitutionality. The panel majority’s misapprehension of this decision can be seen in the way the panel describes the three questions presented in Lawrence:

(1) whether the criminalization of strictly homosexual sodomy violated the Equal Protection Clause of the Fourteenth Amendment; (2) more broadly, whether criminalization of sodomy per se between consenting adults contravened the fundamental liberty and privacy interests protected by the Fourteenth Amendment’s Due Process Clause; and (3) whether Bowers v. Hardwick, 478 U.S. 186 (1986), which upheld against facial challenge a Georgia statute criminalizing all sodomy, should be overruled.

The panel opinion’s paraphrase of the first two questions presented materially changes both of those questions (and I have already explained what is wrong with the description of the third question). The Supreme Court actually undertook to address the narrower questions “[w]hether petitioners’ criminal convictions” violated the Fourteenth Amendment’s requirements of equal protection or due process. Under the Supreme Court’s formulation, the alleged violations of the Constitution inhere in petitioners’ convictions, not in the state’s legislation. And the Court’s supporting reasoning throughout the opinion is all about the petitioners’ personal interests in liberty and privacy.

As if to underscore the personal nature of the rights at issue and the importance of this as-applied understanding to its framing of the analysis, the portion of the Lawrence opinion for the Court that describes the questions presented concludes: “The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.” And in concluding the opinion as a whole, Justice Kennedy highlights again that “[t]he present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” Instead, the case involved “two adults” who engaged in sexual practices “with full and mutual consent from each other.”

Mr. MacDonald’s criminal solicitation did not involve two adults, but did involve a minor in a relationship “where consent might not easily be refused.” Yet the Fourth Circuit’s misreading of Bowers and Lawrence as involving facial invalidation permits what Virginia law has forbidden.

In light of the panel majority’s mistaken characterizations of both Bowers and Lawrence, the panel majority should not have been “confident” that Virginia’s “anti-sodomy provision, prohibiting sodomy between two persons without any qualification, is facially unconstitutional.” And at the very least, the panel majority should not have dismissed Judge Diaz’s conclusion that the Virginia courts had not made a decision that was contrary to or involved an unreasonable application of clearly established federal law. The panel majority’s reasoning would not have been sufficient to reverse a federal district court on direct appeal, much less displace a state appellate ruling under AEDPA’s standard of review.

There is more that could be said in criticism of the panel majority’s opinion (such as with respect to its misapplication of Ayotte v. Planned Parenthood). But I hope such criticisms will be rendered unnecessary by the grant of en banc rehearing.

The odds of such rehearing are never good, of course, and Virginia has an even steeper uphill climb given the panel composition and the composition of the en banc court. Yet it is no small thing for the Fourth Circuit panel to do what it did here, and the defects in analysis are not difficult to see. Moreover, there are both narrower ways (like Judge Diaz’s) and also broader ways of affirming the district court’s denial of habeas relief.

Whether or not the Fourth Circuit grants rehearing, however, it is worth mentioning a more fundamental problem with the panel majority’s conception of constitutional adjudication, a problem that will remain even if this opinion’s particular manifestation of the problem is deprived of legal effect by the grant of en banc rehearing. That problem is the legislative conception of judicial review inherent in its description of the effect of constitutional adjudication.

In the panel majority’s view, the so-called anti-sodomy provision in Virginia law “does not survive the Lawrence decision.” The panel reasons that– because Lawrence killed this provision–the underlying prosecution was not for solicitation of a felony but rather for solicitation of “an act that is not, at the moment, a crime in Virginia.” Indeed, the panel majority states, ” [t]he Commonwealth may as well have charged MacDonald for telephoning Ms. Johnson on the night in question, or for persuading her to meet him at the Home Depot parking lot.” But this is all wrong. Supreme Court decisions about constitutional matters do not decriminalize acts or change state legal codes. Supreme Court decisions may render certain state actions unconstitutional. But such judicial decisions (whether by the Supreme Court or any other federal court for that matter) cannot and do not change what is and is not criminal under state law. Yet that is precisely the effect attributed by the panel opinion to the Supreme Court’s decision in Lawrence.

The panel opinion is right that “the Commonwealth cannot simply wave a magic wand and decree by fiat conduct as criminal . . .” But the Commonwealth did no such thing. It declared conduct criminal through ordinary legislation, and the Fourth Circuit has now erroneously set aside a conviction for violation of that ordinary state legislation through an extraordinary exercise of the federal judicial power.

[C]ourts can act on questions of social policy only at the call of litigants; then, they generally must act although postponement might be the wiser course. While courts are, or should be, aware of the effects of their decisions beyond the case sub judice, their response is often triggered by outrageous facts that may not be at all representative. Professor Morris R. Cohen considered the judicial system to be “intellectually the weakest part of our government,” having “the least opportunity to get information on the issues which it has to decide.”

Henry J. Friendly, The Courts and Social Policy: Substance and Procedure, 33 U. Miami L. Rev. 21, 22-23 (1978).

In my view, Rosenkranz and Whelan have the better of the exchange. But there is still an important element missing from the discussion, for both sides of this debate assume that the Supreme Court should inquire whether Congress had power to pass the law containing DOMA § 3′s definitions. That’s the wrong question. The Court in Windsor has no good reason to consider the constitutionality of DOMA’s definitions except insofar as that definition is plugged into the estate tax. And when the Court considers the constitutionality of DOMA’s definitions of “marriage” and “spouse” in connection with the estate tax, the “necessary and proper” analysis has a straightforward answer.

DOMA § 3 has the kind of legal effect that the federal courts have business dealing with in Windsor only by virtue of that provision’s application in conjunction with the estate tax. By its terms, DOMA § 3 is nothing more than a directive about how to determine ”the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States.” The “Act of Congress” in this case is codified at 26 U.S.C. 2056, a spousal exemption from the federal estate tax. Ms. Windsor would have avoided paying a significant amount of money in estate taxes if she had qualified under federal law as Ms. Spyer’s “spouse.” Because Ms. Windsor did not qualify as a “spouse” for purposes of the federal estate tax, she had to pay.

Ms. Windsor’s challenge to the limited reach of the estate tax’s spousal exemption takes the form of a refund action. The “judicial review” question is whether a court may give legal effect to DOMA’s definitions in the course of deciding this refund action.

The federalism-based anti-DOMA brief answers this question “no” on the grounds that a court may not give legal effect to DOMA’s definitions in any case–the provision as a whole (DOMA § 3, but not all of DOMA) exceeds Congress’s powers. The federalism-based anti-DOMA brief attacks DOMA’s definitions on their own and in conjunction with every other provision of federal law in which DOMA’s definitions of “marriage” and of “spouse” might apply. But the brief does not attack DOMA’s definitions insofar as they are plugged into the estate tax exemption at issue in the case.

The brief argues that “[a] federal definition of marriage that indiscriminately applies to more than 1100 federal statutes and programs can be ‘plainly adapted’ to none of them.” But that is not right. DOMA’s round peg fits into all the round holes, and there are many of them in federal law.

If the spousal exemption in the estate tax is a round hole, such that DOMA’s definitions are “plainly adapted” to it, that is the end of the no-power argument for this case. Congress has power to tax and concomitant power to define the scope of the federal estate tax in a way that declines to exempt Ms. Windsor and others similarly situated.

To escape this move, the anti-DOMA federalism briefers might try to argue that the court should entertain a kind of overbreadth challenge to DOMA: Even though DOMA’s definitions are plainly adapted to the estate tax, the definitional provision is invalid in its entirety because it is not plainly adapted to some other areas of federal law (like, for example, bribery rules). This argument would probably fail on its own terms, as DOMA’s definitional provisions have a plainly legitimate sweep. But the more fundamental problem is to explain why this form of challenge should be entertained at all.

My analysis is closest to the portion of Whelan’s in which he writes that “section 3 of DOMA is merely definitional and … section 3 plugs into other congressional enactments. If those other enactments are within Congress’s power, then it is plainly within Congress’s power to define the terms it uses in those enactments.” And it is similar to Rosenkranz’s, which describes DOMA § 3 as a “cut-and-paste function”:

DOMA Sec 3, like all definitional provisions, is essentially a cut-and-paste function. Where you see X, you should read Y. Obviously Congress could simply have erased X throughout the US Code and replaced it with Y. Likewise, presumably, Congress could have added an “X shall mean Y” definitional section at the end of every single statute. And so, I can’t see any objection to a global definition at the beginning of the U.S. Code.

But one objection raised by the anti-DOMA federalism brief is to the use of a “global definition.” Because it is global, the argument goes, it is not “plainly adapted” to any particular exercise of an enumerated power. My analysis provides a response to this form-based objection.