Ginsburg on facial invalidation: VRA v. DOMA

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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Now posting at Mirror of Justice

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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“Words on gays cost bishop post at Dartmouth”

That is the headline of this Boston Globe article from last week few days ago about the appointment and the rescinding of appointment of Bishop James Tengatenga of the Angligan Diocese of Southern Malawi as dean of the Tucker Foundation at Dartmouth College. I find it surprising that one often-astute observer of Dartmouth College affairs praises the college’s new president, Philip Hanlon, for not flinching in pulling the appointment. It sure seems to me like he flinched. At least that’s what I take away from the comments of the chair of the search committe, Professor Irene Kancades. According to The D’s story today:

Calling the decision “bizarre,” Kacandes said reversing a provost and president-approved decision after a seven-month search might deter faculty from volunteering to sit on future search committees.

“The way that the accusations unfolded is something that we should be very alarmed about,” Kacandes said. “This man was tried in a court of partial public opinion, and it was not clear that people who wanted to weigh in could do so.”

Kacandes said she felt the strong reaction was perpetrated by a small group of students, blog posts and in emails between some faculty members.

Maybe there’s more to the story, which I am viewing from a distance (though not as much a distance as students in Hanover, NH might view the statements of a Bishop in Malawi). But the way this unfolded is troubling. As an alumnus of Dartmouth and AQ, I appreciate now in a way that I did not appreciate as a student the benefits of the institutional independence of Aquinas House, the Catholic student center at Dartmouth, from the governance of the Tucker Foundation.

For more background: The college’s statement on Bishop Tengatenga’s initial appointment is here, a statement by Bishop Tengatenga on his views on gay rights is here, and a statement by Dartmouth’s new President on rescinding the appointment is here. (See also this story from Episcopal News Service and this story from the Valley News.) Earlier news coverage about the controversy is available from the Valley News and Dartblog.

A perspective piece from Patheos, titled “Scapegoating Bishop James Tengatenga,” concludes with a quotation from the Globe’s coverage and the observations of an unnamed faculty member:

The fears voiced in the Globe article by Zambian exile the Rev. Kapya John Kaoma:

“This is a big blow, because it leaves African activists on the ground wondering if they can work with Westerners,” Kaoma said. “All human rights defenders in Africa are working under very, very hard conditions, and the violence against them is always there. What they have done is exposed Bishop Tengatenga and then dumped him back into Malawi.”

Were echoed by a member of the Dartmouth faculty, who told me:

The idea of the left taking care of their own calls to mind the Republican friendly fire of the Spanish Civil War.  In this case, the left refused even to recognize him as one of their own.  He unwittingly and in circumstances scarcely imaginable here violated their language code; their own moral pride compelled them to relegate him to the status of outcast, unfit to exercise moral leadership in our community.  I don’t think my perception is entirely distorted when I notice a Leninist streak in the American liberal arts left.

[Cross-posted at Mirror of Justice]

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A closer look at Virginia’s “Lawrence fix” shows Cuccinelli’s consistency and Fourth Circuit’s faulty conclusion

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 whiffs on RFRA and gets legal doctrine wrong in religious liberty op-ed

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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How is bestiality still validly punished as a crime in Virginia? Or is it no longer a crime? Some questions for Dahlia Lithwick.

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.

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Lawson, Seidman, & Natelson on the difference between a theory of interpretation and a theory of adjudication

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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Dane, Laycock, Friedlander, and Kulturkampf

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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