A couple weeks back, the United States Conference of Catholic Bishops, the National Association of Evangelicals, the Ethics & Religious Liberty Commission of the Southern Baptist Convention, the Church of Jesus Christ of Latter-Day Saints, and the Lutheran Church - Missouri Synod filed an amicus curiae brief in support of certiorari in the Utah same-sex marriage case.
The basic thrust of the brief seems right. The Supreme Court should "resolve without delay whether the Constitution requires the redefinition of marriage to include same-sex couples." At the same time, attention to the careful wording in the brief reveals the difficulty of simultaneously recognizing the Supreme Court's ultimacy in one sense, while also indicating the limited scope of that ultimacy and the possibility (and perhaps the likelihood) that constitutionalizing this matter will not shift the controversy over marriage from the Court to the People.
The brief opens:
The time has come to end the divisive national debate as to whether the Constitution mandates same-sex marriage. We are convinced that a charter “made for people of fundamentally differing views,” Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting), does not prescribe a single national definition of marriage so contrary to the beliefs, practices, and traditions of the American people. We are convinced that the best way to resolve this wrenching controversy is by trusting the People and their democratic institutions. But a chorus of federal courts disagrees.
It may be tactically wise to suggest in an amicus brief in support of certiorari that a Supreme Court ruling on same-sex marriage has the potential to "end the divisive national debate as to whether the Constitution mandates same-sex marriage." And it might make sense to invoke Holmes's Lochner dissent. But I would be surprised if there is anything that the Supreme Court would write in an opinion that would end the debate over whether states are constitutionally required to define marriage to include same-sex couples. And we've already seen what one Holmesian approach to this issue results in.
The religious organizations argue, persuasively, that the legal uncertainty created by Windsor has impeded legislatures from acting on religious liberty protections in connection with same-sex marriage:
In our experience, legislators and other officials are frequently excusing their unwillingness to negotiate protections for religious liberty in the context of same-sex marriage on the specious grounds that such protections are invidious because same-sex marriage is a constitutional right or, conversely, unnecessary because this Court has yet to decide it is a constitutional right. Impeding the channels of democratic debate and engagement has been especially detrimental for religious organizations, given that States adopting same-sex marriage through legislative or popular lawmaking have often included at least some protections for religious organizations, while States compelled to make that change by courts have tended not to include such protections at all.
Even after a likely 5-4 decision creating a new constitutional right to same-sex marriage, however, much uncertainty will remain. The fight will turn to the scope and contours of this right, as well as the implications (both political and logical) of the Court's reasoning. Unlike desegregation, there will be no need for complex remedial decrees in particular cases. But the transition will not be as simple as issuing new forms that eliminate the terms "husband" and "wife." The scope of protections for cultural dissenters from the new federally imposed understanding of marriage, and everything that comes along with it, will be up for grabs. And it will be essential for religious organizations and others who adhere to a different orthodoxy from the new federal orthodoxy to work quickly with all reasonable people of goodwill, not so much to negotiate terms of surrender as to change the terms of engagement.
Depending for one's protection on the very judicial institution that so profoundly aligned itself in opposition to one's view of the legal institution of marriage does not seem a sound long-term strategy. In the short term, though, it is necessary to obtain a definitive declaration from the Supreme Court about where that institution stands amidst the legal uncertainty that it has created.
Thursday, September 11, 2014
Greg Sisk's post about a brief on behalf of eighteen criminal law professors in Yates v. United States brought me back a few weeks to our law school orientation at Richmond, during which a colleague and I argued the case before a panel of faculty judges for the benefit of our incoming students. When the case was originally chosen for this exercise, I asked to be on the side of liberty. But as circumstance would have it, I ended up on the side of text. And that is where I think the Supreme Court will end up as well.
The policy problems identified in the criminal law professors' brief are real problems. But the professors' legal arguments for the petitioner in Yates will not suffice, I expect. Perhaps most importantly, the intent element confines the scope of this statute to cover conduct that is not simply malum prohibitum (in the words of the brief). Petitioner deliberately destroyed the best evidence of his civil infraction. The statutory language prohibiting this conduct was modeled on statutory language prohibiting the destruction of physical evidence in other jurisdictions and other contexts.
I predict that petitioner loses unanimously.
Wednesday, September 10, 2014
The New Republic is running a book review by Justin Driver of Bruce Allen Murphy's book about Justice Scalia. Titled "How Scalia's Beliefs Completely Changed the Supreme Court ... and therefore, the country," the review combines appreciation for the impact of Justice Scalia's beliefs about interpretation (and the role of Justices in oral argument) with criticism of Murphy's "vituperative attacks on Scalia's character and even on his religion."
Driver's appreciation of Justice Scalia's impact is far from uncritical. The review concludes: "If legal liberals are going to prevail in the long run, they must comprehend that the many profound problems with Scalia's views are not characterological or ecclesiastical; they are jurisprudential." But Driver's criticisms of Scalia are not the main feature of the review. His criticisms of Murphy are. And those criticisms are deserved. So, too, are Driver's criticism of reviews like Dahlia Lithwick's. After outlining problems with Murphy's treatment of Justice Scalia's Catholicism, Driver writes:
These deficiencies in Murphy’s approach may seem glaringly obvious, but his book has received a surprisingly warm reception in some estimable quarters. At least one reviewer has even showered praise on Murphy for his brave, penetrating insights into Scalia’s religion. Writing in The Atlantic, Dahlia Lithwick commended Murphy as “a timely and unintimidated biographer” who “refuses to be daunted by the silence that surrounds most discussions about religion and the Court.” In Lithwick’s view, “Murphy’s conclusion—at once obvious and subversive—is that Justice Scalia is very much a product of his deeply held Catholic faith.” Failure to acknowledge the ample flaws in Murphy’s treatment of religion is a dereliction. But celebrating the biography for its bold willingness to speak truth to power is perverse.
Driver describes as "indefensible" the idea that "the issue of religion should never be broached when it comes to assessing justices." Indeed, he says that "[i]n the particular case of Scalia ... it would be irresponsible for any biographer to avoid discussing his religion at some length." But Driver objects to treatments like Murphy's that use tactics whose "impudence is enough to make practitioners of guilt by association blush with embarrassment."
I wish Driver were correct that Murphy's "hatchet is so crude and so wanton that it falls well short of achieving its intended effect." But the set of readers "who are unsympathetic to Scalia's legal vision," but nevertheless "find themselves leaping to his defense, supplying the counterarguments, explanations, and qualifications that Murphy too often disregards," must be very small. It is to Driver's credit that he is one such reader. But Driver is almost certainly atypical, at least outside the legal academy.
Monday, September 8, 2014
As a service to Catholic school administrators everywhere, I thought I would link to a listing of Catholic saints whose feasts fall on September 17 (at least according to the Internet). It turns out that the feasts of St. Hildegard of Bingen, St. Robert Bellarmine, St. Lambert of Maastricht, St. Satyrus of Milan, and St. Ariadne of Phrygia, among others, are celebrated on September 17. That is also the day that Congress has statutorily designated as Constitution Day.
By seeming statutory mandate, every educational institution that receives federal funds "shall hold an educational program on the Constitution" on Constitution Day. See Section 111 of Division J of Pub. L. 108-447, the "Consolidated Appropriations Act, 2005," Dec. 8, 2004; 118 Stat. 2809, 3344-45). This requirement is inflexible as to date. The required educational program must be held "on September 17." As it turns out, though, the Department of Education has provided greater flexibility in certain circumstances. In federal regulations issued in May 2005, 70 Fed. Reg. 29727, the Department of Education authorized a two-week window for the required program, but only when September 17 falls on a Saturday, Sunday, or holiday:
Section 111 requires that Constitution Day be held on September 17 of each year, commemorating the September 17, 1787 signing of the Constitution. However, when September 17 falls on a Saturday, Sunday, or holiday, Constitution Day shall be held during the preceding or following week. 70 Fed. Reg. 29727.
Hence this post's opening identification of Catholic feast days on September 17 (which this year is a Wednesday). The regulations do not define "holiday," but a Catholic educational institution receiving federal funds might be able to obtain some flexibility in the timeline for compliance with the Constitution Day requirement by explaining that the feast of St. Robert Bellarmine or St. Hildegard of Bingen, say, is a "holiday" within the meaning of the regulations.
There are a couple of reasons for caution, though. First, this is a bit of a stretch regarding "holiday." But then again, the proviso authorizing an alternative date for compliance seems entirely made up anyway. Second, and relatedly, the regulations may be invalid because they conflict with the statutory requirement. I've asked around casually but have not been able to find good answers: What is the best argument that the Department of Education acted within its statutory authority when authorizing a different date than September 17 for holding an educational program to comply with the statutory requirement? Is there some kind of administrative law analogue to Fed. R. Civ. P. 6(a)(1)?
Having run the analysis thus far, I may as well finish up by noting a split of interpretation on whether there are any practical consequences under the law for failure to comply with the educational programming requirement. Some have suggested that non-compliant institutions may place their entire amount of federal funding at risk (which would probably be unconstitutional under NFIB v. Sebelius), while others have suggested that the requirement is entirely precatory. I tend to agree with the latter understanding.
(Bonus question: What prominent ongoing cases does the foregoing bring to mind with its discussion of regulatory implementation flexibility contrary to statutory text and its consideration of whether "shall" is precatory?)
Friday, September 5, 2014
A few thoughts prompted by Paul Horwitz's observation about the style of Judge Posner's opinion in Baskin v. Bogan requiring Wisconsin and Indiana to provide and recognize same-sex marriages:
Paul is right that this opinion "speaks in a different register than the one that many other judges writing in this area in the past few months have strained at achieving." It is vintage Posner. I find this vintage too tart and informal; but the taste it leaves is unmistakable. To explain why he writes this way, here's Posner quoting William Popkin describing Posner's opinion style:
The public projection of judicial authority through an authoritative institutional and individual style of presenting judicial opinions has always existed in tension with the internal professional reality that the development of the law is a messy task, fraught with conflict and uncertainty. And this has placed tremendous pressure in the Anglo-American tradition on the judicial opinion, which must implement the dual external and internal goals of preserving judicial authority and developing judicial law. That pressure has only increased in the modern legal culture where judges acknowledge the intersection of law and politics, reject the older tradition of judges authoritatively declaring law derived from legal principle, and consider an institutional base for judging to be insufficient support for justifying judicial law in a legal system where democratic legislation is now the dominant source of law. The judge is no Hercules.
This leaves modern judges with the difficult task of appealing to an external source of substantive law, without the protective armor of authoritative legal principle or a completely secure institutional base. My suggestion for responding to this difficulty . . . is to make greater use of a personal/ exploratory style of presenting judicial opinions, as illustrated by Posner’s approach. This style implements what I call “democratic judging,” which is suited to a legal culture where law and politics are clearly related and in which a democratic process is essential to maintaining the authority of government institutions.
Reflections on Judging (pp. 259-260).
In constitutional cases like this one, Posner seemingly takes Holmes as a guide substantively as well as stylistically. Holmes had the puke test. Posner's version of this seems to be something like disdain or incredulity. This explains the charged characterizations of various arguments put forward by the states, such as "totally implausible" and "so full of holes that it cannot be taken seriously." It also explains his reformulations of various state arguments, like this one: "Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure."
An exploratory, "impure" judicial style need not be so harsh. A better alternative, in my view, is the kind of opinion style cultivated by Judge Sutton. Good examples of this style include his opinion upholding the individual mandate against facial invalidation and his opinion reversing a hate crime enhancement in the Amish beard-cutting case. Like Judge Posner's opinions, Judge Sutton's are conversational and accessible to an intelligent lay reader. But in contrast with Posner's Baskin opinion (or his stylistically and substantively similar partial-birth abortion opinion), one does not sense disdain for lawyers' arguments or contempt for legislators and voters.
Wednesday, September 3, 2014
Reading through Judge Feldman's opinion granting summary judgment to Louisiana in a challenge to its marriage definition brought by same-sex plaintiffs, I noticed that some of the authorities he quoted were somewhat atypical for a federal district court decision. These authorities were about what one might call constitutional judicialism, which is a collection of ideas about what it means to be a good judge in deciding questions of constitutional law.
In explaining his refusal to identify a new suspect class that would require departing from rational basis review under the Equal Protection Clause, Judge Feldman quotes excerpts from Justice Powell's dissent from the Court's holding in Furman v. Georgia that capital punishment violated the Eighth Amendment. At other places in the opinion, Judge Feldman quotes the dissents of Judge Kelly (Tenth Circuit) and Judge Niemeyer (Fourth Circuit) from decisions holding unconstitutional state definitions of marriage to require a man and a woman. In an extended footnote, Judge Feldman also commends Judge Holmes (Tenth Circuit) for his "very careful" opinion concurring in a decision holding Utah's marriage definition unconstitutional. That opinion commended the district court in the Utah case for refusing to attribute Utah's definition of marriage to animus.
Although Judge Feldman's reliance on these authorities is atypical, that is because cases that turn on the proper understanding of the federal judicial role in constitutional cases are themselves atypical ... at least outside of the Supreme Court. Whether typical or not, this explicit discussion about what counts as good and bad judging in constitutional cases is entirely appropriate for cases of this sort.
