Balkinization: June 2015

Balkinization
an unanticipated consequence of
Jack M. Balkin

E-mail:
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Corey Brettschneider
corey_brettschneider at brown.edu
Mary Dudziak
mary.l.dudziak at emory.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Jonathan Hafetz
jonathan.hafetz at shu.edu
Jeremy Kessler
jkessler at law.columbia.edu
Andrew Koppelman
akoppelman at law.northwestern.edu
Marty Lederman
msl46 at law.georgetown.edu
Sanford Levinson
slevinson at law.utexas.edu
David Luban
david.luban at gmail.com
Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
mazzonej at illinois.edu
Linda McClain
lmcclain at bu.edu
John Mikhail
mikhail at law.georgetown.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
Deborah Pearlstein
dpearlst at yu.edu
Rick Pildes
rick.pildes at nyu.edu
David Pozen
dpozen at law.columbia.edu
Richard Primus
raprimus at umich.edu
K. Sabeel Rahman
sabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu

Compendium of posts on Hobby Lobby and related cases

The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC

The Anti-Torture Memos (arranged by topic)

Recent Posts

Hobby Lobby’s Bitter Anniversary

The Kennedy Problem

Gay rights, religious accommodations, and antidiscrimination law

Obergefell and the End of Religious Reasons for Lawmaking

A Note to Append to Justice Scalia's Dissent in Arizona Redistricting

Obergefell, Democratic Constitutionalism, and Judicial Review

C-Span video interview about The Tough Luck Constitution

Richard Posner: Marriage Socialist

Modest John Roberts?

Yeah, that's fair

The continuing relevance of Stephen A. Douglas: "Popular sovereignty," federalism, and moral relativism"

Obergefell and Equality

Obergefell and Tradition

Bye, Bye, Glucksberg

Perspectives on Health Law Developed this SCOTUS Term (Podcast Edition)

Obergefell and Shelby County-- and Lochner-- and Roe

Sam Alito, Critical Race Theorist

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Tuesday, June 30, 2015

Hobby Lobby’s Bitter Anniversary

Nelson Tebbe

Nelson Tebbe, Richard Schragger, and Micah Schwartzman

A year ago today, the Supreme Court handed down Hobby Lobby. There, famously, the Court extended a religion accommodation to a business corporation, freeing it from the legal obligation to include coverage for certain contraceptives in its employee health plan. At the time, the Court strongly implied that the impact on employees would be “precisely zero.”

Yet today, a full year after the Court issued that statement, Hobby Lobby’s employees are still not receiving coverage. As we explained in a previous post, the Obama Administration has not yet implemented the solution that the Court suggested in its opinion, perhaps because of understandable difficulties defining what counts as a closely-held corporation (that definition matters because the Court limited its holding to such entities). Moreover, any solution that is ultimately provided cannot be retroactive, according to the Court’s own doctrine. And Hobby Lobby may well have stopped providing contraception coverage even before the Supreme Court ratified its ability to do so.

In the interim, employees must be suffering harm that is serious and irreparable. As Judge Posner said in his opinion last month for the Seventh Circuit,

About half of all pregnancies in the United States are unintended, and 40 percent of them end in abortion and many others in premature births or other birth problems. Many of the unintended pregnancies are teen pregnancies, and contraceptive use has been found to be positively correlated with decreased teen pregnancy. Because out-of-pocket expenditures on female contraceptives can be substantial for many women, the provision of such contraceptives without cost to the user can be expected to increase contraceptive use and so reduce the number both of unintended pregnancies and of abortions. Furthermore, “women who can successfully delay a first birth and plan the subsequent timing and spacing of their children are more likely than others to enter or stay in school and to have more opportunities for employment and for full social or political participation in their community.”

(Citations to the scientific literature omitted; Judge Posner also cites to the discussion of the benefits of contraception coverage without cost sharing in the D.C. Circuit's opinion in Priests for Life.) Although some commentators have characterized this harm to employees as merely temporary or otherwise negligible, that view is seeming more and more implausible.

It should be noted that many of the for-profit corporations that objected to the contraceptive mandate opposed all forms of contraception, not only those drugs that Hobby Lobby’s owners and others believed to be abortifacients. Furthermore, since Hobby Lobby was decided, many companies have received permanent injunctions that exempt them from paying for all forms of contraception. The Becket Fund lists 47 injunctions granted to for-profit companies, several of which object to providing broader contraception coverage. See, for example, this injunction granted to Autocam Medical, LLC, a company with more than 600 employees in the U.S. The controversy around Hobby Lobby was never only about abortifacients. The scope of the litigation has always extended more broadly to contraception generally.

In granting exemptions for Hobby Lobby and other for-profits, the Court should have conditioned relief on absence of harm to their employees. Under that regime, companies could win accommodations but only if and when a victory would not impose harm on third parties. As we have been arguing, along with others, the imperative of avoiding harm to others is required by both the Establishment Clause and free exercise provisions. Without requiring protection of third parties, the Court has set the conditions for ongoing constitutional and statutory violations.

Happy birthday, Hobby Lobby.

Posted 3:52 PM by Nelson Tebbe [link]

The Kennedy Problem

Jason Mazzone

Over at Concurring Opinions Ronald Collins asks why none of the four "liberal" justices wrote a separate concurring opinion in Obergefell and he notes the same phenomenon in Romer, Lawrence, and Windsor. I have a theory. My guess is that there has long been in place an agreement among the "liberal" justices not to do anything that might upset Kennedy in hot-button cases in which he is in their camp and has taken the majority opinion for himself. A concurring opinion that tilts further left than Kennedy's own opinion risks his rethinking his vote: thus it is best not to write anything at all. (O'Connor in Lawrence didn't have this problem: she concurred in that case on more narrow grounds.) I suspect the agreement among the "liberal" justices extends also to feedback on the draft opinions Kennedy circulates. (And it's quite possible Kennedy's law clerks are in on the game.) My guess is that by agreement such feedback is limited to "Good job, Tony! The only thing I have is that it looks like there is a typo at page 27, line 11." Again, anything more serious or substantive would risk losing the Kennedy vote. Obergefell is just the latest bit of evidence for my theory. It is impossible for me to believe that the amateurish, clunking majority opinion is the product of significant back and forth among five seasoned jurists (and their clerks). Justice Ginsburg is among the best writers in the history of the Court; Justice Kagan, the former Dean of Harvard Law School, knows dreadful prose and half-baked arguments when she sees them. Could these two justices possibly have read without cringing such sentences as "[t]he lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life" and "marriage responds to the universal fear that a lonely person might call out only to find no one there?" Knowing one's own limits is a virtue. It is a real shame that Kennedy didn't have the good judgment to assign the majority opinion in Obergefell to a colleague who could produce a tight, well-reasoned opinion informed by critical feedback.

Posted 12:30 PM by Jason Mazzone [link]

Gay rights, religious accommodations, and antidiscrimination law

Andrew Koppelman

A symposium on "Religious Accommodations in the Age of Civil Rights" has just been published in the Southern California Law Review. My contribution,"Gay Rights, Religious Accommodations, and the Purposes of Antidiscrimination Law," is available here. This is the abstract:

Religious conservatives feel that it would be sinful for them to personally facilitate same-sex marriages, and they have sought to amend the laws to accommodate their objections. These efforts have been fiercely resisted. The resistance is largely unnecessary. Gay rights advocates have misconceived the tort of discrimination as a particularized injury to the person rather than the artifact of social engineering that it really is. Religious conservatives likewise have failed to grasp the purposes of antidiscrimination law, and so have demanded accommodations that would be massively overbroad. If those purposes are carefully disaggregated, the result is different from what advocates on either side have demanded.

This issue exposes a major flaw in progressive thought, one that entrenches the very inequalities the left seeks to combat. The individual-injury-based conception of antidiscrimination law has not only produced excessively harsh treatment of religious conservatives. It has entrenched racial and gender subordination, by imagining discrimination to be the conduct of a few bad actors rather than a structural wrong that demands structural remedies.

Posted 8:05 AM by Andrew Koppelman [link]

Monday, June 29, 2015

Obergefell and the End of Religious Reasons for Lawmaking

Nelson Tebbe

Micah Schwartzman, Richard Schragger, and Nelson Tebbe

At Religion & Politics, the online publication of the Danforth Center on Religion and Politics at Washington University in Saint Louis, we argue that Obergefell put an end to exclusive reliance on religious reasons for laws that touch on basic rights. Here are the first few paragraphs:

"In Obergefell v. Hodges, marriage equality for same-sex couples became the law of the land. In the wake of the decision on Friday, focus has intensified on religious freedom for traditionalists. Few of the questions about religious accommodation are novel—they had been playing out in the states for some time. Yet the decision did have important ramifications for the relationship between religion and government in the United States, and it does mark the formal beginning of a new phase in the so-called culture wars.

The most significant impact of the Obergefell decision for the relationship between religion and government is that it put an end to lawmaking solely on the basis of religious reasons. From the beginning, the only real basis for excluding same-sex couples from civil marriage was religious. At the oral argument in the Supreme Court, as in lower courts, the states struggled to justify marriage exclusion in terms that all citizens could understand. Their theory that expanding civil marriage would weaken a conception of marriage linked to procreation, and thereby lead opposite-sex couples to remain unmarried, was nonsensical. In the Obergefell opinion, the Court called it “counterintuitive.”

So when the Court struck down exclusions of same-sex couples from civil marriage, it implicitly—but clearly—rejected the idea that such a law could be based on religious reasons alone, without understandable secular aims. Those justifications could not suffice to justify discrimination with respect to a basic freedom like the ability to marry."

The full article is available here.

Posted 4:31 PM by Nelson Tebbe [link]

A Note to Append to Justice Scalia's Dissent in Arizona Redistricting

Mark Tushnet

As Justice Scalia observed, the Court in Coleman v. Miller was "equally divided" on one of the questions in the case, though not on the standing question, where the vote was five (three plus two) to four. I quote from a work in progress (by me), with apologies for the sometimes telegraphic nature of the phrasings:

How could a Court consisting of nine Justices, all of whom cast votes on the other issues in the case, be equally divided? A note in the Yale Law Journal on the case had the title, “Sawing a Justice in Half,” and wondered whether it was “possible to saw a Justice in half during a conference and have him walk away whole?”[1]

According to Justice Frankfurter, the justices realized that their three-to-two-to-four division created a problem only late in the deliberations. Justices Butler and McReynolds had seen no need to cast votes on any other than the length-of-time issue, which was sufficient to justify a reversal. As the divisions within the Court appeared, so did the need to figure out how to write a judgment. Justice Butler apparently went along with the Chief Justice on the lieutenant-governor issue. Black and his colleagues did not. The majority vote on standing may have put them under some pressure, but not enough. Black’s opinion relied on a different doctrine of nonjusticiability, the political questions doctrine, and his analysis was only slightly different from Hughes’s. But, Hughes‘s draft opinion dealt with the lieutenant governor issue squarely on the merits, and it is difficult to see how he could have done otherwise.[2] Black and his colleagues might have been compelled to say something about the substantive issues, but only to the extent that they could dispose of them by invoking a justiciability doctrine. They would not go so far as to rule on the merits of one of the substantive issues.

By this time, though, it was late in the Term – the decision was announced on June 5, 1939 – and the irascible Justice McReynolds had left for his vacation. As Frankfurter put it, “nobody was going to try and call him back – he would have told them, frankly, ‘Go to hell.’ He wouldn’t have come back.” Concluding that McReynolds’s vote on this single issue was not needed to enable the Court to issue a judgment, Hughes decided to announce an equal division.[3]

[1] Id. at 447; Note, “Sawing a Justice in Half,” Yale Law Journal 48 (--- 1939): 1455-58, at p. 1458. Bennett Boskey attributes the note to Yale Law professor Harry Shulman, “Recollections of West Virginia State Board of Education v. Barnette,” St. John’s Law Review 81 (--- 2007): 755- , at p. 787 (comment by Bennett Boskey).

[2] A copy of Hughes’s draft, with the section on the lieutenant-governor issue, is in Hugo Black Papers, Manuscript Division, Library of Congress, box 256, folder Coleman v. Miller.

[3] “Recollections of West Virginia State Board of Education v. Barnette,” note --- above, p. 787 (comment by Bennett Boskey).

Posted 4:08 PM by Mark Tushnet [link]

Obergefell, Democratic Constitutionalism, and Judicial Review

Among their many other virtues, the opinions in Obergefell v. Hodges contain an important debate about judicial review in a democratic society. All of the dissenters in Obergefell criticize the majority for preempting the decisions of state legislatures across the country and prematurely ending the debate on same-sex marriage.

Justice Kennedy offers two different kinds of responses. At first glance, they seem to be in some tension with each other; in fact they are two ways of describing the same phenomenon-- how lawyers and judges' understandings of constitutional values change over time in conversation with constitutional debates in the larger public.

One of Kennedy's responses to the dissenters is to quote Justice Jackson in West Virginia Board of Education v. Barnette that “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” The relevant question is not how much public support there is for same-sex marriage, but whether the right to marry is fundamental and includes same-sex couples. This is a question of law. For this reason, Kennedy explains, the Court was wrong in Bowers v. Hardwick and should have begun to protect gay rights in 1986, if not earlier. This response treats the interpretation of constitutional rights as isolated from the influences of democratic politics. It boldly proclaims that democracy must yield to fundamental rights, begging the question of how judges discover and articulate implied fundamental rights. Kennedy might respond that judges reason from precedent in common-law fashion. But precedents can be read in many ways.

Elsewhere in the opinion, however, Kennedy reasons quite differently, providing a far more important response to the dissenters.

Read more »

Posted 10:50 AM by JB [link]

C-Span video interview about The Tough Luck Constitution

Andrew Koppelman

Recorded a couple of weeks before the Court's decision in King v. Burwell.

Here.

Posted 8:50 AM by Andrew Koppelman [link]

Richard Posner: Marriage Socialist

Mark Graber

Richard Posner is a marriage socialist. When explaining why a right to same-sex marriage can be distinguished from a right to polygamy, he wrote:

[P]olygamy imposes real costs, by reducing the number of marriageable women. Suppose a society contains 100 men and 100 women, but the five wealthiest men have a total of 50 wives. That leaves 95 men to compete for only 50 marriageable women.

This seems nonsense for numerous reasons and for libertarian reasons in particular. Implicit in Posner’s preference for two person marriage is a preference for equality over liberty, a commitment to powerful anti-trust laws, and an admission that the Constitution protects at least quasi-positive rights to government benefits.

Posted 8:25 AM by Mark Graber [link]

Modest John Roberts?

Andrew Koppelman

Judicial modesty, as The New York Times' Adam Liptak observed Friday, was a theme of Chief Justice John Roberts’s opinions in the same-sex marriage and Obamacare cases. In the latter, the Court’s job was to implement the purpose of the statute, not to defeat it by cramped hypertechnical interpretation. “In a democracy, the power to make the law rests with those chosen by the people,” Roberts wrote. In the former, he dissented that “judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment.”

Liptak was careful not to endorse this claim of judicial restraint, and when one considers Roberts’s opinions in context—that is, beyond the context of these two decisions—the claim is hard to take.

I elaborate in a column in the New Republic Online, here.

Posted 8:14 AM by Andrew Koppelman [link]

Yeah, that's fair

Andrew Koppelman

The Supreme Court’s ruling Friday that the Constitution protects same-sex marriage was great news. The party pooper was the remarkably weak reasoning by which the Court got there. Reading the four dissents poke holes in Justice Anthony Kennedy’s opinion for the Court, I kept thinking, “Yeah, that’s fair,” even though on the bottom line the Court clearly got it right. All of Kennedy’s worst traits — the ponderous self-importance, the leaps of logic, the worship of state power — were on display. For a decision this important, the Court should have been able to do better.

I elaborate in a column at Salon.com, here.

Posted 8:04 AM by Andrew Koppelman [link]

Sunday, June 28, 2015

The continuing relevance of Stephen A. Douglas: "Popular sovereignty," federalism, and moral relativism"

Sandy Levinson

Consider the following passages from the anguished dissents filed by Justices Scalia and Alito in Obergefell:

Scalia: “[t]he substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage "

Alito: "The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not…. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas."

It's especially interesting, I think, that Alito echoes Justice Holmes in Lochner that the Constitution was made for people "with fundamentally different views." We know that Holmes had no patience at all with any theories of "natural law" or any other substantive notion of justice. His conception of law had literally nothing to do with justice and everything to do with recognizing sovereign authority. There is, I think, much to be said for Holmes's view, but, to say the least, it's a bit odd to it reflected in the opinions of two of the Justices who are viewed as the most "serious Catholics" on the Court. And if there's one thing we thought we knew about Catholicism, it is that it professes a robust view of natural law and does not recognize the complete separation of law and morals. (A famous article written by a Catholic law professor connected "Hobbes, Holmes, and Hitler," for example.)

Federalism is also often praised not only for allowing little islands of experimentation, but also, as a practical matter, as a means of acknowledging the diverse views we have about matters of political or social morality and allowing state A to adopt a very different answer to such questions than state B. Again, there's much to said for this as a means for maintaining social peace, albeit at the cost of accepting the maintenance of what many might consider significant injustice in some of the states.

But note well that what Scalia and Alito are doing is really reviving the theory of "popular sovereignty" best identified with the Little Giant Sen. Stephen A. Douglas with regard to the issue of slavery. Unlike the hotheaded Lincoln, who noted that "I have always hated slavery, I think as much as any Abolitionist," Douglas professed himself indifferent to the moral critique of slavery. Perhaps he even would have said that it was "not of immense personal importance to me." What this translated into was the desirability of letting each state, as it joined the Union, make its own decision as to slavery or freedom. Somewhat more complicated was the right of the pre-state territory to make its own decision, in territorial legislatures, to welcome slaveowners. Douglas, to his political detriment, argued that they could place stumbling blocks in the way of the slaveowners, but, if they chose not to, that was all right too. The important thing was to recognize the fundamentally "federal" nature of the Union, a collection of people with decidedly different views about the legitimacy of owning other human beings as chattels, and to allow that decision to be made locally rather than on a one-size-fits-all national basis.

Posted 8:01 PM by Sandy Levinson [link] (108) comments

Obergefell and Equality

In Obergefell v. Hodges, Justice Kennedy holds that bans on same-sex marriage violate both the Due Process Clause and the Equal Protection Clause. His equal protection analysis does not discuss the standard doctrinal tiers of scrutiny. He does not hold that restricting marriage to opposite-sex couples violates sex equality, as some amici proposed. He does not hold that sexual orientation is a suspect classification, as the Obama Administration urged the Court to do. He does not suggest that limiting marriage to opposite-sex couples involves unconstitutional animus, as he did in Windsor; nor does he say that the ban fails "rational basis with a bite," because it is premised on irrational prejudice.

At the very end of the opinion there is language that suggests that the exclusion of gay couples would violate even the ordinary rational basis standard, because the only justification that the state could come up with--banning gays from marrying will encourage straights to marry--makes no sense: "it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so." Yet Kennedy does not argue that the exclusion violates rational basis.

Even so, Kennedy's argument for treating same-sex marriage as part of the fundamental right to marry has many significant equality ideas. He states that "[t]here is no difference between same- and opposite sex couples with respect to" marriage's usefulness in grounding the social order. He argues that excluding same-sex couples "teaches that gays and lesbians are unequal in important respects." and that "[i]t demeans gays and lesbians for the State to lock them out of a central institution of the Nation's society." He adds that "laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter."

As in Lawrence v. Texas, the language of stigma and demeaning sounds in civil equality, and the anti-subordination principle. Indeed, later in the opinion, Kennedy says:
Read more »

Posted 1:58 PM by JB [link]

Obergefell and Tradition

Obergefell v. Hodges is an extended essay on tradition, but the majority and the dissent have very different ways of articulating what constitutionally protected tradition is and how we recognize its contours.

Justice Kennedy argues that constitutionally protected traditions are those which are consistent with the reasons why a social tradition is valuable to us today. "[I]n assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected." Therefore he recites four features of marriage that make it valuable to us today and then argues that same-sex marriage applies to all of them. His opinion assumes that tradition--or at the very least, constitutionally protected tradition--is something that present generations can reason about and rationally extend or alter. Kennedy's recitation of how the couples in the case met, fell in love, married, lived, and raised children in Obergefell is not just an attempt to tug at our heartstrings. He is also trying to show that the reason we sympathize with these couples and their plight is the same reason we sympathize with the hardships and sacrifices of married couples generally.

Roberts, Scalia, and especially Alito, identify constitutionally protected traditions with long-standing traditional practices. They view tradition as the accumulated wisdom of previous generations. Therefore we should not disturb the judgments of previous generations because we are very likely to make a mistake. We view matters from a very narrow perspective--our own lifetimes--and therefore if we try to make significant changes based on contemporary judgments and reasons we are likely to produce unintended and undesirable consequences, as well as destroying institutions of long-standing.

These different conceptions of tradition lead to different views about human knowledge and moral growth. Kennedy regards the evolution of tradition as beneficially shaped by increases in knowledge and understanding. Repeatedly he speaks of "new awareness," "new insight," or "enhanced understanding" of new facts and moral truths, that result from deliberation and political interaction. These recent insights and understandings should properly be incorporated into the constitutional tradition, altering what the tradition means for us today.

The dissenters, by contrast, do not think that present generations are necessarily getting any wiser, even if their values may have changed. At one point in his dissent, Chief Justice Roberts, almost in exasperation, exclaims, "Just who do we think we are?"

Kennedy emphasizes that traditional practices change over time and are always changing. Hence he offers a history of changing conceptions of marriage-- from arranged marriages to marriage for love to the gradual decline of coverture rules to the emergence of companionate marriage between equals. Roberts and Alito, by contrast, emphasize that core features of the institution of marriage have not changed for centuries, and can be found in almost all civilizations, ancient and modern. (Note Chief Justice Roberts' reference to "the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs.") The changes that Kennedy describes are not central to the core of the tradition, while the union of one man and one woman is central.

It is tempting to identify the dissenters with Burke, and view Kennedy as opposed to Burkeanism. Certainly the dissenters would like to brand Kennedy as a revolutionary or Jacobin, heedlessly destroying a valued institution at the center of society. But this is a caricature of what Kennedy is actually doing in his opinion. Kennedy's use of tradition is also Burkean in its own way. He simply emphasizes different features of Burke's thought. In particular Kennedy emphasizes change through respect for tradition that results from discussion and lived experience--as opposed to change that occurs through violence and revolutionary upheaval. Kennedy emphasizes the natural evolution and growth of previous commitments through debate, contestation and social practice. Our commitments evolve as they we apply them to changed factual circumstances and our wisdom grows through encountering those changed circumstances in practical terms. We can have greater confidence in our judgments achieved in this way because, unlike previous generations, we have the benefit of their experience, while they do not have the benefit of ours.

Posted 10:31 AM by JB [link]

Saturday, June 27, 2015

Bye, Bye, Glucksberg

Justice Kennedy's opinion in Obergefell unceremoniously overrules Washington v. Glucksburg without saying so directly, as the Chief Justice well understands: "It is revealing that the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process."

A little translation is in order here. Glucksberg is not, in fact, the leading modern case on substantive due process and implied fundamental rights. That would be Griswold or Eisenstadt (as reinterpreted by later courts), or (shudder!) Roe, or Casey or Lawrence, or now, Obergefell.

Rather, Glucksberg is the case that people opposed to implied fundamental rights wish were the leading case and regularly cite as if it were the leading case that applied to every such question.

Chief Justice Rehnquist--no fan of implied fundamental rights himself--wrote Glucksberg in 1997 precisely to lay down a marker so that federal judges would stop trying to imply fundamental rights.

He didn't succeed.

Alas, the Court hasn't taken Glucksberg very seriously since it was decided. Not in Lawrence. Not in Windsor, and certainly not in Obergefell.

Here's what Justice Kennedy has to say about it:
Read more »

Posted 9:27 AM by JB [link]

Perspectives on Health Law Developed this SCOTUS Term (Podcast Edition)

Frank Pasquale

Nicolas Terry has interviewed two leading health law scholars (Nicole Huberfeld and Wendy Mariner) on King v. Burwell, for our podcast The Week in Health Law (downloadable here). We both interviewed Huberfeld earlier this year regarding ongoing controversies in US health care federalism, including Armstrong v. Exceptional Child Center. And Balkinization readers will likely enjoy Abigail Moncrieff's prescient take on King, as well. For a future podcast, we'll be asking: is the ACA on the road to becoming a "super-statute?"

Posted 9:14 AM by Frank Pasquale [link]

Friday, June 26, 2015

Obergefell and Shelby County-- and Lochner-- and Roe

The arguments of the dissenters in Obergefell for judicial restraint and respect for democratic deliberation would sound a lot more convincing if they hadn't all joined the opinion in Shelby County v. Holder. Shelby County is truly made up out of whole cloth, and it strikes down key parts of an important civil rights statute passed by overwhelming majorities in Congress. Indeed, at oral argument in Shelby County Justice Scalia suggested that the very fact that the Voting Rights Act was passed by such overwhelming margins is a reason that the courts needed to strike it down. Talk about five lawyers undermining democracy and imposing their ideological convictions on the rest of the country. . .

The Chief Justice trots out Lochner for ritual denunciations. Good for him! After all, what conservative in good standing supports Lochner these days? (Ahem).

But one opinion is strangely missing from the discussion. Roe v. Wade. The term "Roe" appears only in the name of two law review articles cited by the Justices, and it is implied but not mentioned in a sly reference by the Chief to Justice Ginsburg's famous remarks about Roe.

The majority opinion declines to mention Roe or Casey at all when it discusses fundamental rights and the right of privacy. The dissenters don't use the "A" word at all, except for its appearance in the title of a law review article cited by the Chief. Thomas is the only Justice even to mention Casey.

It seems that abundant references to Lochner (and Dred Scott) are doing the work of references to Roe and Casey, the opinions that dare not speak their names.

Nevertheless, the specter of Roe (and Casey) haunts all of the opinions.

The dissenters think (or perhaps hope) that Obergefell will prove to be another Roe, still controversial after all these years. The majority hopes that Obergefell will be like Griswold, Eisenstadt, and Lawrence, all of which are now canonical and beyond question for the vast majority of lawyers, politicians, and citizens. What will actually happen? It's too soon to tell.

My current guess is something in between. Same-sex marriage is already widely accepted, and will become more so as older people die and are replaced by new generations. In this sense, Obergefell will be like Griswold, Eisenstadt, and Lawrence.

On the other hand, the culture wars are hardly over. Every time conservatives have lost one battle, they have found another terrain to fight on. In response to Lawrence, social conservatives quickly understood that it was not worth fighting the criminalization question any more. Therefore they switched to fighting over same-sex marriage.

Now that Obergefell has been decided, it is clear that conservatives will fight over religious liberty to refuse to acknowledge same-sex marriage or treat gay couples equally in public accommodations, educational institutions, and other areas of civil society. Justice Alito's dissent rings many of these themes. Reva Siegel and Doug NeJaime have spelled out a bit of what is to come in the context of reproductive rights in their recent piece, Conscience Wars, which will appear this year in Yale Law Journal.

Posted 2:15 PM by JB [link]

Sam Alito, Critical Race Theorist

One of the interesting features of Justice Alito's dissent in Obergefell is that it shows how social and religious conservatives are rethinking freedom of speech in the light of the next phase of the culture wars. In the last three decades many social and religious conservatives have been strong defenders of freedom of speech against "political correctness" on the left. But consider how widespread acceptance of gay rights is quietly reshaping their judgments about what freedom of speech means.

Social and religious conservatives have already been arguing--and will continue to argue--that others should not call them discriminators, much less bigots, because they refuse to accept same-sex marriage or gay equality. Perhaps more important, social conservatives are starting to claim that they are being silenced (and therefore censored) by the larger secular community. Justice Alito explains:

Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion,the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. E.g., ante, at 11–13. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

In this respect, social and religious conservatives are reviving left-wing arguments made in the 1980s and 1990s by radical feminists like Catherine MacKinnon and by critical race theorists like Mari Matsuda. They argued that sexist and racist speech silenced (and therefore censored) women and minorities, because they were afraid to speak up for themselves and be thought crazy or disagreeable. In the same way, Alito argues, general acceptance of equal rights for gays is going to silence religious people, who will be afraid to say what they think because they will be thought backward or bigoted.

Sam Alito as Mari Matsuda and Catherine MacKinnon. Talk about your ideological drift.

Posted 2:05 PM by JB [link]

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