Mirror of Justice

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Monday, July 6, 2015

CLS Panel: Obergefell and Future Challenges to Religious Liberty

This past Wednesday I participated in a panel on Obergefell v. Hodges hosted by the Christian Legal Society in Chicago.  I actually prepared two talks: the first was an analysis of the highlights of the majority decision; the second was a discussion of the challenges that the decision will pose for religious liberty in the future, as well as a discussion of how it will be more difficult to change the conversation about same-sex marriage following Obergefell than it was to change the conversation about abortion following Roe.  The second part (which I did not deliver due to time constraints) appears below.  I’ll post the first half (which I did deliver) later in the week.



(1)  First, as concerns religious liberty, Obergefell will present a number of challenges for those faith communities, religious organizations, institutions, and individuals who subscribe to the traditional, conjugal definition of marriage involving sexual complementarity in the union of one man and one woman as husband and wife, father and mother.  Some of these challenges we have already seen in the past several years leading up to this moment: the use of public accommodation laws to punish those who refuse to participate in same-sex marriages on religious grounds (i.e. I have in mind Elane Photography in New Mexico, Masterpiece Cakeshop in Lakewood, Colorado, Arlene’s Flowers in Washington State, and other business owners who have refused to make use of their expressive talents in support of a view of marriage that they oppose as a matter of faith, see here).  We have also seen it in the exclusion of religious social service agencies that engage in adoption and foster-care services but which refuse to place children with same-sex couples on the basis of religious conscience.

Other areas will emerge in the near future: (1) the denial of tax exempt status for religious bodies, schools, and other institutions that refuse to recognize same-sex marriage in their policies with respect to their employees, students, and faculty, in the same way that tax exempt status was denied to the two schools in Bob Jones University v. U.S. that discriminated against African-Americans in admissions and prohibited inter-racial dating – something that Solicitor General Donald Verrilli hinted at in the Obergefell oral arguments [Addendum: In the link to Paul Caron that Rick provided Paul says that “Catholic colleges are unlikely targets for those who want religious colleges to fully respect gay and lesbian marriages.”  This may be true of institutions like Notre Dame and the various Jesuit universities that already hire gay and lesbian faculty and extend benefits to them and their partners, but not so of smaller institutions like Thomas More College, Thomas Aquinas College, and Christendom College.]; (2) the withdrawal or denial of accreditation for religiously affiliated schools and universities by accrediting bodies; (3) challenges to the married student housing policies of religious colleges and universities (something specifically mentioned in Roberts’s dissent); (4) the banning of student clubs in public schools and universities that support traditional marriage and the institution of student speech codes that punish the defense of traditional marriage as a kind of “hate speech”; (5) mandatory education concerning the validity of same-sex marriage, not only in public schools, but in private schools and even for children educated in a home-school setting, notwithstanding Pierce v. Society of Sisters.

 Although any effort to force a religious minister or congregation to conduct a same-sex “marriage” ceremony or bless a same sex union as a “marriage” as part of its beliefs or practices has virtually no chance of succeeding under First Amendment doctrine, one can easily envision (6) the exclusion of ministers and other religious figures who refuse to perform same-sex weddings from conducting religious weddings that are also recognized civilly.  Similarly, it is easy to foresee (7) efforts to deny professional licenses to practice medicine, law, counseling and perhaps other fields for those who fail to recognize same-sex marriage; (8) the exclusion of dissenting employers from eligibility for government contracts; and relatedly (9) an effort to nullify morality clauses in employment contracts through which religious employers can dismiss employees who fail to abide by their religious tenets by three methods: (i) by enacting anti-discrimination laws that contain no exemption for religious employers, (ii) by narrowing or eliminating the ministerial exception to anti-discrimination laws under the First Amendment recently reaffirmed in Hosanna Tabor Evangelical Lutheran Church and School v. EEOC­, and (iii) by expanding the public policy exception in contract law so as to void those contract provisions that permit religious employers to dismiss employees on the basis of religious morality (Nb. The inclusion of such clauses is standard practice throughout the nation’s Catholic dioceses).

One can even envision (10) a state requirement that adoption agencies in the process of placing children with adoptive parents consider same-sex married couples equally with heterosexual married couples even to the point of disregarding a birthmother’s preference for a traditional, married couple, and the disqualification of those couples seeking to adopt who refuse to acknowledge the validity of same-sex marriage.

I am not suggesting that each of these measures would succeed as a matter of legal doctrine, nor am I suggesting that political opposition to such measures might not thwart the efforts of same-sex marriage proponents to ensure the kind of universal recognition of same-sex marriage by private actors that they seek.  I am saying that there will be a head-on collision between religious liberty and the newly created right to same-sex marriage on numerous fronts, and that resisting these efforts will require tenacity, skill, and resources.  Resisting these efforts will require faithfulness and sacrifice.

In addition, recognition of same-sex marriage as constitutionally mandated will be a basis for not considering numerous possible nominees for judgeships and other appointed positions in government, as well as a basis for voting down such nominees when they are put forward.  The cultural pressure not to hire, promote, or be affiliated with proponents of traditional, conjugal marriage will become commonplace (as evidenced, for example, by the campaign against Brendan Eich resulting in his stepping down as CEO of Modzilla), a point made by both Roberts (pp. 27-28), and Alito (p. 6), the latter of whom specifically predicted that the majority’s comparison of traditional marriage laws and laws discriminating against African-Americans and women is an analogy that “will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” an analogy that “will be exploited by those who are determined to stamp out every vestige of dissent.”

All of these moves, if not already in the works, are visible on the horizon as the movement for LGBT rights enters its next phase, the goal of which is not merely formal, legal equality, but cultural acceptance and affirmation that will brook no exception.  A virulent intolerance carried out under the banner of tolerance is well underway, and traditional religious teachings on marriage and sexuality and those who adhere to these teachings are among its primary targets.  If it achieves its objectives this movement will succeed in reducing “religious freedom” to “freedom of worship” where religious believers are free to conduct whatever religious rituals they wish in the confines of their churches, synagogues and mosques, and in the privacy of their own homes, but they dare not make their views known beyond these private spaces.  Instead of a capacious religious liberty to believe and to act on those beliefs, the end result will be not merely a naked public square, but one from which the adherents of traditional religious morality are effectively banished as cultural pariah.

(2)  Second, because comparisons have been made between Obergefell and Roe and indeed, some like the Heritage Foundation’s Ryan Anderson have called for a response to Obergefell analogous to the response to Roe that we have witnessed over the last forty years (a response that has involved many religiously motivated people), I think it is important to point out some of the differences that may make generating such a response more difficult.

(i)  Rousing the same kind of interest in overturning Obergefell that the pro-life movement has succeeded in generating in overturning Roe will be difficult.  In the case of Roe, most people knew, at least on an intuitive level, that the life of a human being – an unborn child – was at stake, notwithstanding the abortion industry’s characterization of the “thing” being disposed of as only a “clump of cells” and the Court’s consigning the unborn to the status of mere “potential life.”  Indeed, the widespread recognition of the humanity of the child growing in the womb is in fact why so many women faced with unwanted pregnancies find the decision so wrenching, and often experience depression and the searing pain of regret in the aftermath of an abortion.  Convincing the wider public (if not the ideologues of “choice”) of this fact has been aided by both the extreme position of the abortion lobby (e.g. opposing limitations on the gruesome practice of partial-birth abortion) and advances in science (e.g. ultra-sound technology).  More work remains to be done, but much of the public has been nudged by the persistent efforts of the pro-live movement to see and accept what they already knew, notwithstanding the simultaneous ongoing propaganda of the abortion industry. 

The chances of effecting a similar change in perspective with respect to same-sex marriage are unlikely for several reasons.  First, the challenge of the pro-life movement was to convince the public that the life of a person other than the pregnant woman was at stake.  The challenge was to convince the public that the abortion procedure was not costless – that the “right” to abortion resulted in an injustice – that it had a victim!  The movement in favor of same-sex marriage has proceeded along the same lines: showing an initially skeptical public the human dimension and the ostensible injustice of denying loving same-sex couples access to marriage.  The movement succeeded in putting the issue in concrete terms: giving it a human face and making plain the consequences of denial of the right – portraying same-sex couples as the victims of injustice.

It will be far more difficult to explain to the public how extending marriage rights to same-sex couples will result in injustice.  The usurpation of democracy – removing the power to define marriage from the people and their elected representatives – is, under our constitutional system, a kind of injustice that Obergefell ushers in (a point that is a focus in each of the four dissents), but it is relatively abstract.  It is a denial of process not substance – of who decides and not what is decided.  Sadly, given the sad state of democratic culture in American society – the lack of political engagement – this injustice is not likely to gain much traction outside elite circles.  Even then, the outrage occasioned by such anti-democratic overtures often tends (rather cynically) to be somewhat selective, depending on whether or not one agrees with how the issue was resolved.

The substantive injustice at stake – the claim that extending marriage to same-sex couples will harm the public good by affecting contemporary marriage culture, by falsely teaching the public that marriage is a genderless institution, that mothers and fathers are optional, that the presence or absence of a mother or a father will have no effect on the children raised, and communicating to the children of same-sex couples who experience the absence of a mother or father as a loss that their feelings are not legitimate – is an abstract point easily intuited but not easily demonstrated in the short-run.  Cultural changes take time.  That the sky is not falling the week after same-sex marriage became a federal constitutional right, or even ten years after the Goodridge decision in Massachusetts, is not proof that the redefinition of marriage will not have a profound adverse effect on the public perception of marriage and its incidence.  But the proof that is accumulated through empirical study (if it is allowed to move forward in an unbiased fashion) will not be available in time for the next news cycle.

Even if such sociological proof is forthcoming, the opponents of Obergefell will still have to contend with the use of relatively dry facts and figures against the face of happy couples raising their children.  Simply put, the optics will not favor a change of opinion in the wake of Obergefell, whereas the revised optics in the years following Roe did.  Add on top of this the general “live and let live” attitude of most Americans (the idea that so long as your plans and activities don’t interfere with my life, you should be free to live as you choose) and the personal investment that the relatives of men and women in same-sex marriages will have in the normal status of their loved ones' arrangements, and the struggle to change hearts and minds will be a monumental task.

(ii) In setting forth the right of a woman to terminate her pregnancy, the Roe majority, in its tortured trimester approach, at least acknowledged that there are interests at stake other than the woman’s desire to be achieve the demise of her would-be progeny, viz. the competing State interests in maternal health and fetal life.  There is no similar acknowledgement in Obergefell.  There is only the interest of same-sex couples to avail themselves of the same right to marry enjoyed by opposite-sex couples.  As noted a moment ago, Kennedy’s opinion refrains from describing laws that reflect traditional marriage as “irrational” or as hate-filled ordinances designed to hurt (though he believes that they have the effect of “demeaning” same-sex couples).  Still, the absence of any acknowledgement of interests on the other side gives opponents of the new regime very little room to operate.

Toward the end of his opinion Kennedy tries to assure religious adherents that they may continue to advocate that “same-sex marriage should not be condoned” and that the First Amendment “ensures that religious organizations and persons” will still have the freedom “to teach the principles that are so fulfilling and so central to their lives and faiths” (p. 27).  But this offers little solace.  That religious persons and organizations may teach the truth about marriage according to their religious beliefs does not mean that they may live out their beliefs in other respects (an important point that Thomas notes in his dissent, pp. 14-16).  Kennedy's limited language speaks of the freedom of religious belief, not the broader, more traditional notion of religious liberty where a person is free to act on his beliefs in the world. 

(iii) Finally, following the Supreme Court’s decision in Roe, a number of measures were enacted that helped to protect the consciences of those who objected to abortion.  The Church Amendment, and later the Hyde-Weldon Amendment, and numerous other conscience protection measures (see here) were enacted to protect those who object to abortion on religious or moral grounds from being made to participate or from having their beliefs used against them in employment decisions.  Moreover, especially early on, before abortion became a largely partisan issue, these measures enjoyed broad support from members of both parties.

It is unlikely that the constitutional right to same-sex marriage will meet with a similar legislative response if for no other reason than for this: The beneficiaries of the right in Roe (women wishing to terminate their pregnancies) could still exercise the right granted even if some hospitals, physicians, and other healthcare workers opted out on religious grounds.  So long as others remained willing and available to perform the desired procedures, the right could still be exercised.  Women who sought abortions were relatively indifferent to the reactions of those around them so long as the freedom remained unimpaired.

Not so with the interest at stake in Obergefell.  While the right to marry may be exercised so long as some individual licensed by the State to officiate the ceremony is available, that, standing alone, is not the only interest that Obergefell seeks to vindicate.  Rather, the interest at stake is public acknowledgment and approval that brings with it dignity and self esteem.  The goal is cultural transformation.  But this can only be attained if erstwhile dissenters are made to bow in homage to same-sex marriage.  What is really at stake is not merely the right to marry to which others may react with indifference.  What is really at stake is recognition and acceptance – a point brought into clear relief in the case of the photographer, the baker, and the florist who declined to take part in same-sex wedding ceremonies.  The same-sex couples could have simply turned to other vendors.  Instead, they sued to make those who claimed religious conscience to bend the knee or pay a heavy price.  Thus, it is unlikely that the holders of this new-found right will be inclined to support laws that perpetuate and institutionalize indifference.  As Kennedy notes “Dignitary wounds cannot always be healed with the stroke of a pen” (p. 25).

On the contrary, efforts will be made to repeal or curtail those conscience protection measures currently in place, such as the federal Religious Freedom Restoration Act and analogous legislation in the States.  If the hysteria and demagoguery that was on display with respect to the recent Indiana Religious Freedom Restoration Act is any indication, then religious dissenters will face a much more difficult time than those who responded to Roe.

July 6, 2015 | Permalink

Sunday, July 5, 2015

"The Constitutional Legacy of William Rehnquist"

Here is a new, short book from West (edited by Brad Wilson) that includes my chapter on Rehnquist's religious-freedom and church-state work:

It might not have been foreseen that William Rehnquist would have a marked influence on the Supreme Court’s interpretation, construction, and application of the First Amendment’s Religion Clauses. And yet, he certainly did. Kent Greenawalt wrote that Rehnquist – or, more precisely, the “Rehnquist Court” – “turned the constitutional law of religion upside down.” “[W]e have moved,” he reported, “from expansive readings of both of the religion clauses to narrow readings of the Free Exercise Clause and of very important aspects of the Establishment Clause.” It is suggested in this paper that in facilitating and guiding the “move[s]” identified by Greenawalt, Rehnquist for the most part “turned the constitutional law of religion” right-side up, rather than “upside down.” He left the Court’s Religion Clauses doctrine better than it was before, that is, better rooted in the Constitution’s text, history, structure, and values than it was when he joined the Court. In any event, that the “move[s]” happened, and that they happened in no small part because of him, seems beyond dispute.

Rehnquist was able, for the most part, to exercise both judicial humility in the face of politically accountable actors’ attempts to deal with debatable questions of policy and morality – including most of the questions that arise in free-exercise and non-establishment cases – and careful review of measures and actions that might compromise the structural integrity of our Constitution. This paper’s appreciative review of his contributions to the Court’s Religion Clauses doctrine will, it is hoped, serve as a reminder that cases involving tension or collision between political and religious authority implicate the “first principles” of our constitutional experiment no less than those involving federal interference with the states’ appropriate functions or regulatory overreach by Congress.

A great summer gift for the lawyers and law students in your life!

July 5, 2015 in Garnett, Rick | Permalink

Religious institutions' tax-exempt status after Obergefell: A roundup

Prof. Paul Caron has helpfully collected links to a lot of recent stories and comments around the web on the question whether, after Obergefell, religious institutions (in particular, colleges and universities) should expect challenges to their tax-exempt status.   One of the pieces, from Inside Higher Ed., has this quote from Prof. Michael McConnell:

"Private institutions that dissent from today's reformulation of marriage must be prepared for aggressive legal attacks on all fronts," said Michael W. McConnell, the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford University Law School.

I'd only add that such institutions should not be distracted by "lullaby talk" from scholars or commentators who insist that challenges to such institutions' tax status, accreditation, and funding eligibility are, for political reasons, extremely unlikely. 

July 5, 2015 in Garnett, Rick | Permalink

Friday, July 3, 2015

"What Every American Should Know"

Here is a thoughtful piece that explains well why, in an ever-changing America, we need both "cultural literacy" and multiculturalism: that is, an expanded and changed shared core of literacy. Just a couple of bits (read the whole thing):

The more serious challenge, for Americans new and old, is to make a common culture that’s greater than the sum of our increasingly diverse parts. It’s not enough for the United States to be a neutral zone where a million little niches of identity might flourish; in order to make our diversity a true asset, Americans need those niches to be able to share a vocabulary. Americans need to be able to have a broad base of common knowledge so that diversity can be most fully activated. . . .


As the cultural critic Albert Murray wrote in his 1970 classic The Omni-Americans, the essence of American life is that it relentlessly generates hybrids. American culture takes segments of DNA—genetic and cultural—from around the planet and re-splices them into something previously unimagined. The sum of this—the Omni—is as capacious as human life itself, yet found in America most fully. This is jazz and the blues. This is the mash-up. This is everything creole, mestizo, hapa. In its serious forms, multiculturalism never asserted that every racial group should have its own sealed and separate history or that each group’s history was equally salient to the formation of the American experience. It simply claimed that the omni-American story—of diversity and hybridity—was the legitimate American story.

July 3, 2015 in Berg, Thomas | Permalink

John Stinneford on GLOSSIP v. GROSS

MOJ friend John Stinneford, professor of law at the University of Florida, has published a discerning commentary on--and, I think, a persuasive critique of--the Supreme Court's ruling earlier this week in Glossip v. Gross, the lethal injection case in which several justices debate the question of the constitutionality of capital punishment.  Consider what John has to say, here.  For those who would like to read the case itself, here it is:  Glossip v. Gross (2015).

July 3, 2015 in Perry, Michael | Permalink

Thursday, July 2, 2015

Comments on Obergefell, the Marriage Holding, and Religious Liberty

I have comments on Obergefell up at America and the Cornerstone religious freedom blog of the Berkley Center at Georgetown. They continue in the vein I've pursued, that we should protect both same-sex-marriage rights and meaningful religious-liberty rights. The Court has, correctly in my view, protected the former; we'll now see if courts and legislatures protect the latter. In the two recent pieces, I try to argue: (1) The majority opinion's assurances about the right to "teach" religious principles should not be read to denigrate, by omission, the distinct right to "exercise" religion (i.e. to operate consistently with those principles). (2) The majority's conclusion that the state's denial of marriage rights demeans same-sex families does not say that the traditional view of marriage is per se demeaning (the Court elsewhere says the view often rests on "decent and honorable" premises). There is no conclusion in Obergefell that the traditional view is inherently demeaning such that people who exercise that view in their own religious institutions are bigoted and ineligible for accommodation.

July 2, 2015 in Berg, Thomas | Permalink

"Cheering for Thanatos"

Here is James Mumford, in The Hedgehog Review, on the yet-again-picking-up-steam movement for euthanasia in the U.S. and U.K.  The conclusion:

In a world that has seen amazing progress in so many areas of social life, euthanasia would be a huge step backwards. Why? Because in an increasingly ageist culture, many older people perceive themselves to be a burden. They might not say so. They definitely haven’t been sat down and told so. But their sense of superannuation is a societal norm that has been, in the way Michel Foucault demonstrated over and over again, thoroughly internalized. Is it not more than imaginable that this sense of being a burden will lead, in many sad and tragic cases, to euthanasia?

July 2, 2015 in Garnett, Rick | Permalink

Religious Freedom after Obergefell

At City Journal, Adam Freeman helpfully identifies a number of the issues that are, or will soon be, arising regarding religious institutions, public funds and grants, and antidiscrimination laws.

July 2, 2015 in Garnett, Rick | Permalink

". . . [C]orporations aren't always the bad guys."

So says Frank Bruni, in the NYT.  It turns out, apparently, that when we're talking about Hobby Lobby (etc.), corporations "don't have a soul," don't stand for things, don't exercise religion, don't have expressive interests, etc.  But, when it's Eli Lilly bashing Indiana for its Religious Freedom Restoration Act (on the basis of misrepresentations and misunderstandings of that Act), then . . . we see the "sunny side of greed."  


July 2, 2015 in Garnett, Rick | Permalink

Vallier on "Liberal Politics and Public Reason"

Go here for a really interesting podcast about Prof. Kevin Vallier (Philosophy, Bowling Green) and his new book, "Liberal Politics and Public Reason:  Beyond Separation."  Here's part of the promo:

In Liberal Politics and Public Faith: Beyond Separation (Routledge, 2014)Kevin Vallier develops a novel view of the role of religious conviction and reasoning in liberal democracy. On his view, religious citizens will rarely need to constrain the role that their religious convictions play in their public activities. However, Vallier also contends that public officials and institutions cannot determine public policy solely on the basis of religious reasons.


July 2, 2015 in Garnett, Rick | Permalink

A Catholic Response to Modern Day Slavery

Campus of The Catholic University of America is abuzz with the just announced details of the Papal visit. While the focus of his trip is the World Meeting of Families in Philadelphia, Pope Francis will be involved in some very important matters here. To follow the details of his trip, click here.

While it is wonderful to host the Holy Father, it is even more important to heed his calls to work for justice. One way this is happening next week on campus is an important multi-disciplinary conference on Human Trafficking, aptly titled, Answering Pope Francis's Call: An American Catholic Response to Modern Day Slavery. Hosted by University's National Catholic School of Social Service, the USCCB, Catholic Charities of the Archdiocese of Washington, and Catholic Charities, USA, this critical conference seeks to educate dioceses throughout the nation on identifying and responding to modern day slavery in their communities. As I have blogged about previously, many components of the Church, particularly women religious, have been working on this issue for decades. But many other diocese are unaware of the problem within their midst. This conference will bring together national leaders on the topic, both within and outside the Church, to help the Church continue its important work in this area. Tune in next week for blogging from the conference.

July 2, 2015 | Permalink

Wednesday, July 1, 2015

Federal court dismisses ACLU's "theological malpractice" lawsuit

A federal district court in Michigan yesterday dismissed the ACLU's "theological malpractice" lawsuit against the United States Conference of Catholic Bishops and current and former chairs of a Catholic hospital network. For background on the case of Means v. United States Conference of Catholic Bishops, see my earlier Mirror of Justice post (with links to other coverage).

The filing of this case made a big media splash; its dismissal, not so much. Compelling factual allegations are more interesting than careful dissection of a novel legal theory, I suppose. 

The court concluded that it lacked personal jurisdiction over the USCCB and that plaintiff failed to state a claim upon which relief can be granted against the other defendants. There is some discussion of what the court describes as ecclesiastical abstention, which the court found would have applied to the elements of breach and proximate cause. But the plaintiff would have failed to state a claim upon which relief can be granted even in the absence of that doctrine. The court held that plaintiff failed to identify a legal duty owed plaintiff by the individual defendants. In the court's words, "Plaintiff has not sufficiently demonstrated that Michigan law recognizes a duty to a patient by a sponsor of a hospital network." 

I am already seeing expressions of dismay and outrage in various quarters one would expect to see them. But the court's application of plain-vanilla legal principles seems unobjectionable. People who want to express their opinion should probably read the court's opinion first.

July 1, 2015 in Walsh, Kevin | Permalink

When bad things happen to good law -- some law and principles for a rough guide

I wrote yesterday that the Supreme Court's Arizona redistricting-by-commission decision made good law bad. A court majority did this by redefining the word "Legislature" in the Constitution's "Elections Clause" to include a legislative process designed to bypass the legislature. This new and expanded understanding of "Legislature" may be better policy, considered purely as policy. But as law, the "Elections Clause" is worse than it was before, for it has lost some of the determinacy it previously had, which is one of the reasons it was included as written law to begin with.

Decisions like the Supreme Court's "Legislature"-redefinition decision raise the question of how to respond when bad things happen to good law.

One appropriate response is condemnation. Done persuasively, condemnation of bad decisions may decrease the likelihood of similarly bad decisions. And conscientious government officials should be open to fair legal criticism. Indeed, it is their duty to heed such criticism.

What about accepting the erroneous interpretation as law? Should we? 

This raises a number of difficult questions for political prudence. The answers to some of those questions can be informed by correct legal analysis, although that will only take us so far. But here's a start.

The Supreme Court cannot change the Constitution. Like all other government officials, the Justices of the Supreme Court are under the law; they are its servants. The Constitution is their master; they are not our masters. 

The Supreme Court can nevertheless change the law that judges of inferior courts are obligated to apply. The holdings of an opinion for the Court bind inferior judicial officials as a matter of vertical stare decisis. Even erroneous decisions create "new law" of a peculiar sort. This "case law" is not equivalent to the Constitution itself, even for judges of inferior courts. But it is law of a certain sort.

Like other courts, the Supreme Court can also render judgments and make legally binding orders. These judgments and orders also make law of a certain sort, in accordance with the law of judgments and the law of remedies. Included in the law of judgments, for example, are various rules of preclusion that prevent (or "preclude") the relitigation of finally decided matters. 

All of this "new law" created by an erroneous Supreme Court decision is final in some respects, but not final in others. Precedents can be distinguished, narrowed, and even overturned; judgments can be re-opened; orders can be amended. There's law about how all that happens as well (though some of that law, such as that guiding judicial practice regarding precedents, is rather fuzzy).  

Knowing the ways in which an erroneous Supreme Court decision is and is not law in various ways can help inform whether and how one accepts that decision as law.

Suppose you really like redistricting by commission but you think the Supreme Court's interpretation of "Legislature" to authorize it was legally wrong. Should you vote for an initiative that takes advantage of that erroneous interpretation to authorize redistricting by commission? That depends on much more than just the legal analysis provided thus far. You will be undermining constitutional self-government at least to some degree, but perhaps not much. And the resulting process will be good law of a certain sort. There is a lot of room for political judgment and discretion here.

What if you have taken an oath to uphold the Constitution (as I did, for example, when I was sworn into the bar)? Would voting for that initiative violate your oath? If so, then you shouldn't do it. But voting for an initiative that helps to solidify in practice an erroneous constitutional interpretation does not necessarily violate a voter's oath to the Constitution. We do not think that lawyers violate their oath to the Constitution when they help clients order their affairs in the wake an erroneous judgment in a constitutional case. After all, the judgment is law of a certain sort for that client. Why think differently about voters? 

To say that it is permissible in certain circumstances to act on erroneous judicial interpretations of the Constitution is not to say that it is obligatory. Far from it. Some government officials have an obligation to treat these erroneous interpretations as law of a certain sort, as we have seen. But they also have an obligation to the Constitution itself.  And they should not make that good law worse just because the Supreme Court has. Judges on inferior courts can distinguish and criticize; other officials (and voters) can adopt an opposite interpretation as a political rule. And in some circumstances--maybe even most--they and we should.

The law shapes and guides here, but does not fully determine what one ought to do when bad things happen to good law. 

July 1, 2015 in Walsh, Kevin | Permalink

Tuesday, June 30, 2015

Obergefell v. Hodges: An Imagined Opinion, Concurring in the Judgment

In Obergefell v. Hodges, decided on June 26, 2015, the Supreme Court of the United States ruled that excluding same-sex couples from civil marriage is unconstitutional. Sometimes the appropriate response to a judicial decision is: “Right ruling, but wrong — or, at least, problematic — reasoning.” Is that the appropriate response — or an appropriate response — to the Court’s decision in Obergefell?

This brief paper (here) is an imagined opinion — an opinion by an imaginary justice of the Supreme Court, Justice Nemo — concurring in the Court’s judgment in Obergefell. In the opinion, Justice Nemo articulates a basis for the Court’s judgment that she believes to be preferable, on a number of grounds, to the somewhat diffuse mix of rationales on which the majority relies. Justice Nemo begins her opinion by explaining why one of the rationales included in the mix on which the majority relies — an “equal protection” rationale — is, in her view, a problematic basis for the Court’s judgment.

In her opinion, Justice Nemo relies on an insight of the celebrated Jesuit theologian John Courtney Murray, who is no doubt familiar to the five Catholic justices of the Supreme Court.

June 30, 2015 in Perry, Michael | Permalink

Some thoughts on the method-of-execution case

I posted, in America, some thoughts about the Supreme Court's Glossip decision on lethal-injection drugs.  A taste:

This case and, more dramatically, this exchange highlight—as did Friday’s decision constitutionalizing same-sex marriage—one of the most important questions in constitutional law: Which divisive and difficult questions of morality and policy does the Constitution leave to the democratic process and which ones has it removed from politics? For about a century, this question has sharply divided citizens and justices alike. When the Court strikes down as unconstitutional a policy that we think is justified, or at least debatable, we are likely to cry “activism!” or “overreach!” When the Court lets stand a policy that we embrace, or at least think is reasonable, we tend to praise it for its “humility” and “restraint.” When it comes to the role of judges and the power of “judicial review,” few of us achieve perfect and principled consistency.

It is possible to think that, for example, abortion should be generally legal while at the same time believe that the Court got it very wrong, in Roe v. Wade, when it declared that the Constitution—rather than elections, legislation and compromise—answers all questions about abortion’s legality and regulation. The same can be said—indeed, Chief Justice Roberts underscored this point in his dissent in Friday’s ruling—about same-sex marriage. And, similarly, one can firmly oppose capital punishment as a failed and unjust policy while believing that, in our system, its abolition depends on persuading our fellow citizens and not five justices of the Supreme Court.

June 30, 2015 in Garnett, Rick | Permalink

The Arizona redistricting decision shows how to make good law bad

I had not been following the Arizona redistricting-by-commission case very closely, but I've been reading the Supreme Court's opinions from beginning to end the past couple of weeks (the joy!), and yesterday brought the Court's decision in that case. It is a very bad decision. I don't mean bad as a matter of policy; I don't know enough to have an informed opinion on that. But bad, very bad, as a matter of law. 

The bad law exemplified by the case is what one might call adverb law--law about how to do law lawfully. The Justices in the majority adopted an approach to the text of the Constitution that defeats a central purpose for having a written Constitution--to determine and to fix the rules so that people can hold the government (and themselves) to those rules later. 

The legal text at issue was the "Elections Clause" of the U.S. Constitution: "The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations." (emphasis added)

Arizona voters, acting via initiative, found a way to bypass redistricting by the Arizona legislature; they vested redistricting authority in an independent commission instead.

The Arizona legislature lodged the obvious legal objection: The Elections Clause says that redistricting is to be done "in each State by the legislature thereof," but the Arizona initiative places redistricting authority outside the state legislature.

The legislature lost. The same five-Justice majority that redefined civil marriage last Friday redefined "Legislature" yesterday. In an opinion for the Court by Justice Ginsburg, the Supreme Court held that redistricting by an independent commission counts as redistricting "by the Legislature" under the Elections Clause. Chief Justice Roberts wrote the main dissent, which interprets as well all the majority interprets as poorly. 

While the willingness of one Justice to write and four others to sign on to loose legal analysis like the majority's is disheartening, a comparison of Justice Ginsburg's opinion for the Court with Chief Justice Roberts's dissent illustrates another virtue of a written Constitution: We can more easily identify when the Justices approve unlawful law by twisting our written Constitution than by operating outside the constitutional text entirely.

This is cold comfort, I know. But at least it provides the basis for warm condemnation.

So go, read the Chief's dissent. Don't be a chump.

June 30, 2015 in Walsh, Kevin | Permalink

In Conversation with Erika about the “sliver of silver lining”


Yesterday, I was in contact with Erika about her posting on the Obergefell decision and what seemed to be Justice Kennedy’s decision not to cite the “mystery of life” passage from Planned Parenthood v. Casey. During Sunday’s chemo session, I had the time and a little energy to read carefully the majority opinion in Obergefell—after all, as the old Soloflex advertisement used to say, “No pain; no gain!” Only Justice Thomas in his dissent cites Casey, but he does not address the “mystery of life” language.

Upon returning home, I studied the citations to Lawrence that appear in Obergefell and discovered something that robs Erika, me, and others of the hope that liberty is no longer defined by the “mystery of life” passage of Casey.

In the Court’s opinion of Obergefell, Justice Kennedy refers a fair number of times to Lawrence v. Texas. No surprise there. In two of his Lawrence citations on page 12 of the Obergefell slip opinion, he refers to 539 U.S. at 574. That is where he, Justice Kennedy, discussed the liberty passage of Casey in Lawrence. I hasten to add that on page 12 of Obergefell, Justice Kennedy is discussing the underlying substantive principle of liberty. So, indirectly he does rely on the problematic language of Casey without having to mention the specific language in Casey that formulates the definition of liberty discussed by Erika. Whether this was Justice Kennedy’s intention or not, I cannot say. But some readers of Obergefell may wish to take the time to examine all the citations to Kennedy’s previous decisions cited in Obergefell and discover that the Casey formulation is indirectly discussed by the two citations to “at 574.” Hence, the flawed definition of liberty discussed by Erika has been given an extension on its life. The sliver of the silver lining is a phantasm. While Casey is not specifically mentioned in Obergefell, Justice Kennedy introduces its liberty formulation in stealthy fashion by citing Lawrence’s discussion of it.


RJA sj

June 30, 2015 in Araujo, Robert | Permalink

Monday, June 29, 2015

A sliver of silver lining

It's difficult to find a silver lining in the case decided last Friday, but I'm going to try to offer just one:  in Kennedy's discussion of substantive due process, he dropped neither Roe nor Casey in his citations.  Casey's "sweet mystery of life" passage would have seemed particularly apt, given that Obergefell's definition of liberty builds upon that phrase's postmodern quest for identity-creation more than anything we've seen since. "At the heart of liberty is the right to define one's concept of existence, of the universe, and of the mystery of human life"...and, according to Obergefell, to "define and express [one's] identity." Kennedy cited Griswold (6 times) and Eisenstadt too, but neither Roe nor Casey.  Yes, both cited cases concern privacy within the marital state, but Obergefell wasn't at all about privacy within the marital state.  

From the Opinion of the Court: 

Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U. S. 145, 147–149 (1968). In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453 (1972)

Gives one a bit of hope that Kennedy's "better informed understanding" of liberty no longer includes the right for a mother to end the life of her unborn child...

June 29, 2015 | Permalink

Sunday, June 28, 2015

Our way cool Constitution

I mean, is this cool or what?  Our Constitution is a living, breathing document!  It evolves to stay in sync with Anthony Kennedy's moral and political beliefs. It's like magic!

June 28, 2015 | Permalink

June 26 and the Future

This portrayal of Thomas More's trial for high treason is something upon which Catholic legal theorists may wish to reflect in light of Friday's marriage decision:


Some organizations which received the decision they sought in the litigation have suggested they will now disband. I am skeptical of their claim. As was the case with Henry VIII and his Parliament, will those having rational arguments to present that conflict with the majority decision find themselves in the difficult position of Thomas More? Time will tell.


RJA sj

June 28, 2015 in Araujo, Robert | Permalink

Saturday, June 27, 2015

Three recommendations for religious reaction to the Supreme Court's legal redefinition of civil marriage

In thinking about the general topic of religious reactions to the Supreme Court's redefinition of marriage, I continue to find that the strongest religious reactions are among those evangelizing the five-Justice majority's decision as if it should be revelation for the rest of us. Consider, for example, this CNN report of a speech by Hillary Clinton in northern Virginia last night:

Clinton read the last paragraph of Justice Anthony Kennedy's opinion from the stage on Friday, ending with, "And to that I say, amen, thank you."

"This morning, love triumphed in the highest court in our land," Clinton said. "Equality triumphed, America triumphed."

There's more where this came from, of course, from the relighting of the White House to the rainbow-ization of corporate logos and profile pictures on social media. (And let's not forget the Supreme Court demonstrator proclaiming "Anthony Kennedy is My Spirit Animal." Or the reaction to the decision: "Cries of joy rang out when the decision was announced. A gay men's chorus began to sing.") Everyone wants to "spread the good news," it seems.

But that's not true. Not everyone thinks what the Supreme Court has done is legally permitted, much less legally compelled. So what about the rest of us, who take what comfort we can from the symbolism and the substance of the Chief Justice of the United States dissenting from the bench? 

A few suggestions, in increasing specificity:

1. Pray. We all need grace to be prudent, temperate, just, and courageous, as well as faithful, hopeful, and charitable. 

2. Insist that all in government act lawfully. People of faith must insist that our legislators and judges be people of the law rather than prophets of a false faith--whether in "progress" or in "history" or in a new understanding of "the central meaning of the fundamental right to marry."

3. Engage in concrete acts of self-government. Congress should pass legislation using its authority under Section 5 of the Fourteenth Amendment to ensure that marriage remains a two-person enterprise. 

June 27, 2015 in Walsh, Kevin | Permalink

A few quick thoughts about Obergefell (and Glucksberg)

Here is a short reaction-piece I did for America, and here is one I did for National Review Online.  Here's a bit from the America piece, which touches on an issue that I don't think most commentators have been talking about:

Today’s ruling raises many questions, and not only about the “next steps” with respect to marriage-related rules and nondiscrimination laws. For example, the reasoning in Justice Kennedy’s opinion is in significant tension with the opinion—which Justice Kennedy joined—in the Court’s 1997 decision that upheld the right of governments to outlaw physician-assisted suicide. In that case, Washington v. Glucksberg, Chief Justice Rehnquist had insisted that a “liberty interest” had to be deeply rooted in our country’s history and traditions before it could be treated as the kind of “fundamental right” that is protected against state regulation. The asserted right to doctor-assisted suicide did not, the Court concluded, have that kind of pedigree. In Obergefell, however, Justice Kennedy did not follow Rehnquist’s example in allowing history and tradition to constrain judicial power. And, as the pressure in some states to embrace physician-assisted suicide increases—in the name of “dignity” and “compassion”—it is not clear that the Court’s wise refusal in Glucksberg to constitutionalize a right to that practice will stand.

Here, just as a reminder, is how the late Chief Justice Rehnquist ended his opinion for the Court in Glucksberg:

Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.


June 27, 2015 in Garnett, Rick | Permalink

Friday, June 26, 2015

Justice Kennedy's opinion as a religious reaction to same-sex marriage, and President Obama on "justice that arrives like a thunderbolt"

A few weeks back, I agreed to participate in an AALS panel next January on "Religious Reactions to Same-Sex Marriage." So I've been thinking about and observing and reflecting on the phenomenon, and will continue to do so.

Reading Justice Kennedy's opinion in Obergefell v. Hodges, it seems to me that the opinion itself can be understood as a religious reaction to same-sex marriage. Among other things, it purports to remedy an injury of being rendered "strangers even in death."  

The religious reactions I've seen so far have been from the opinion's enthusiastic adherents. President Obama, for example, has described this 5-4 ruling as bringing "justice that arrives like a thunderbolt." 

June 26, 2015 in Walsh, Kevin | Permalink

"Serious Questions About Religious Liberty"

From Justice Roberts' dissenting opinion in today's marriage ruling:

Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution. Amdt. 1.

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for 28 OBERGEFELL v. HODGES ROBERTS, C. J., dissenting religious practice. The majority’s decision imposing samesex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

June 26, 2015 in Stabile, Susan | Permalink

June 26, judicial impartiality, and Justice Kennedy -- cause for concern?

At Above the Law, David Lat wrote yesterday "Why the Same-Sex Marriage Decision Will Likely Come Out Tomorrow." That's today, June 26.

Lat and others find in this speculation reason for excited anticipation. They should not, for the timing would further sharpen the perception that Justice Kennedy's amour-propre has played an outsized role in the Supreme Court's evaluation of same-sex marriage under federal law. 

The speculation about June 26 as a day for "Big Gay Cases" (to use Lat's phrase) is based on the belief that Justice Kennedy has written an opinion for the Court requiring states to license and recognize same-sex marriages. Lat writes:

A June 26 hand-down of Obergefell would make that the day of decision for three of Justice Kennedy’s four Big Gay Cases — Lawrence, Windsor, and Obergefell (with Romer v. Evans, decided on May 20, 1996, as the only case not falling on June 26). And authorship of Obergefell would arguably make Justice Kennedy the single individual who has done more to advance gay rights in the United States than, well, anyone in history.

An astute observer of the Court corresponding with Lat points out that it appears unusual based on experience in recent years for the Court to schedule an opinion announcement for the Friday before the end of the Term. "There is no reason to break with character and issue a Friday decision," Craig Konnoth writes, "except to celebrate an anniversary." In an update, Lat notes that Justice Kennedy has "a sense of history and also a sense of drama, so if any justice would be attentive to anniversaries, it would be AMK."

All of this is highly speculative, as all involved acknowledge. And the final update on Lat's post quotes Eric Citron (a former Supreme Court clerk, current SCOTUSBlog commentator, and Supreme Court practitioner) with a strong formulation of the conventional wisdom about the timing of hand-downs. "The main determinant of when a case comes out is when it is ready; the Court barely considers other factors at all. And these matters are largely under the control of the Chief’s office, and I think it would be genuinely surprising, given all the things the Court is working on right now, if this kind of coincidence was in mind." I tend to agree with Citron. But Lat further comments "even if the decision on timing is ultimately up to Chief Justice Roberts, perhaps with input from the Reporter of Decisions, I can’t help thinking that the Chief would try to accommodate Justice Kennedy if AMK expressed a strong preference for June 26." And it is hard to disagree with that.

So, why would this timing be bad if deliberate? Justice is supposed to be blind. Judges should not try to create anniversaries of decisions of theirs that they would like to be celebrated. That is not how impartial judging operates. As John Finnis has written in the related context of criticizing Dworkinian moralism, "the horizon is ordinarily not the best focus for the judicial gaze."

I don't want to overstate the principle at work here. Judges may often properly have regard to the effect of timing on particular litigants. And this may even properly push them to work overtime to issue a decision more quickly. Consider the wrongfully convicted and imprisoned man now in possession of conclusive evidence exonerating him. The judicial system should work hard to end that injustice as soon as possible.

One might analogize that situation to same-sex marriage under the Constitution. Interpreting the Fourteenth Amendment to require State licensing and recognition of same-sex marriage, on this view, would be the correction of a historic injustice that cannot come fast enough. But that is not how Justice Kennedy and his colleagues have managed the issue thus far. A more accurate perception is the careful cultivation of public opinion, and concern to be on "the right side of history." Because these are not the actions of judges under the law, I hope this speculation of Above the Law is wrong. 

June 26, 2015 in Walsh, Kevin | Permalink