The Sixth Circuit, in an outstanding opinion by Judge Jeffrey Sutton, ruled today (in Ward v. Polite)that a district court wrongly granted summary judgment in favor of university defendants on the claim by a student, Julea Ward, that she had been expelled from a graduate-level counseling degree program because of the university’s hostility towards her speech and faith.
Ward’s Christian religious beliefs prevented her from counseling clients in a manner that would affirm same-sex or extramarital relationships. When the university asked Ward, as part of a student practicum, to counsel a gay client, she asked either that the client be referred to another student or that she be permitted to begin counseling and to make a referral if the counseling session turned to same-sex relationship issues. The university’s ultimate response was to expel Ward from the graduate program.
Applying the usual standard for summary judgment, the Sixth Circuit ruled that Ward’s claims that her First Amendment speech and religious rights had been violated should have been permitted to go to the jury for decision. As the opinion carefully explains, there was plenty of evidence that would have enabled a jury to find that the university’s claimed reasons for expelling Ward were pretextual.
I’d like to especially highlight the Sixth Circuit’s reasoning on Ward’s Free Exercise claim, as it bears on (and supports) my post explaining that Washington state regulations that require objecting pharmacists to dispense the drug Plan B violate their Free Exercise rights. As the Sixth Circuit explains, a law is not neutral and generally applicable for purposes of Employment Division v. Smith—and is instead subject to strict scrutiny—if it “permit[s] secular exemptions but not religious ones” and is not applied “in an even-handed, much less a faith-neutral, manner.” In Ward’s case, “The multiple types of referrals tolerated by the counseling profession severely undermine the university’s interest in expelling Ward for the referral she requested.”
As is characteristic of Judge Sutton’s work, his opinion is eminently readable and provides a clear and comprehensive account of the relevant law. (It also appears to be the first published federal appellate opinion ever to mention the platypus.) Disclosure: I’ve known Judge Sutton from our clerking together two decades ago; Judge Sutton was a law clerk for retired Justice Powell and doubled as an extra clerk in the Scalia chambers.
Congratulations to the Alliance Defense Fund, which represented Ward, and to all the supporting amici.
Does the HHS mandate “substantially burden” the “exercise of religion” by those persons and organizations who have religious beliefs that forbid them from providing contraceptives and abortifacients? Again, the answer is clearly yes.
Let’s begin with what the “substantial burden” test means under the pre-Smith regime that RFRA restored statutorily. As the Court made clear in Sherbert v. Verner, the question is not limited to whether a law “directly compel[s]” a person to act contrary to his religious beliefs but extends as well to “indirect” burdens. Adell Sherbert was denied unemployment benefits because she refused to work Saturdays. The state was not directly compelling her to work on Saturdays—or to seek employment at all. Nevertheless, as the Court put it:
The [agency] ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.
It is likewise clear that “substantial” is a very low threshold. In Wisconsin v. Yoder, for example, Jonas Yoder and Wallace Miller, the two fathers who refused to send their children to high school, “were fined the sum of $5 each.”
Employers who violate the HHS mandate, and who thereby fail to provide the coverage HHS deems necessary under Obamacare, incur an annual penalty of roughly $2000 per employee. More precisely, as I understand it, the base penalty is $2000 x (number of full-time employees minus 30), and the base is increased each year by the rate of growth in insurance premiums. So, for example, Belmont Abbey College (one of the two plaintiffs already challenging the HHS mandate), which has 200 full-time employees, is facing an annual base penalty of $340,000. Colorado Christian University (the other plaintiff) has 280 full-time employees and is facing an annual base penalty of $500,000.
It’s true, of course, that employers who object to the HHS mandate could avoid any fine by shutting down their operations. Likewise, Adell Sherbert could have stayed out of the labor market or worked part-time, and Jonas Yoder and Wallace Miller could have moved their families out of Wisconsin. The availability of that exit option plainly does not negate the “substantial burden” that each is subject to. To apply the Sherbert passage above to the HHS mandate:
The HHS mandate forces Catholic employers to choose between following the precepts of their religion and incurring huge fines, on the one hand, and abandoning one of the precepts of their religion in order to stay in business, on the other hand. Government imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against Catholics for their opposition to contraceptives and abortifacients.
As the text of the Religious Freedom Restoration Act (presented in my introductory post) makes clear, there are four questions involved in determining whether the HHS mandate violates RFRA:
1. Does a person engage in an “exercise of religion” when he, for religious reasons, refuses to provide health insurance that covers contraceptives and abortifacients?
2. Does the HHS mandate “substantially burden” such exercise of religion?
3. Does application of the burden to the person further a “compelling governmental interest”?
4. Is application of the burden to the person the “least restrictive means” of furthering a compelling governmental interest?
If the answer to question 1 or question 2 is no, then there is no issue under RFRA and no reason to reach questions 3 and 4. If the answers to question 1 and question 2 are yes, then questions 3 and 4 come into play; if the answer to either question 3 or question 4 is no, then RFRA has been violated.
I’ll address the first question in this post and the others in follow-on posts.
I don’t see how anyone can seriously dispute that a person engages in an “exercise of religion” under RFRA when, for religious reasons, he performs, or abstains from performing, certain actions. (I’m not now addressing the distinct question whether and when a prohibition on that exercise of religion amounts to “prohibiting the free exercise [of religion]” in violation of the First Amendment.) Consider the “exercise of religion” involved in some leading Supreme Court cases: In Sherbert v. Verner(1963), an individual’s religious beliefs forbade her from working on Saturdays. In Wisconsin v. Yoder(1972), the parents of teenaged children had religious beliefs that prohibited them from sending their children to high school. In Thomas v. Review Board (1981), a worker’s religious beliefs barred him from participating in the production of armaments.
While the Court’s decision in Employment Division v. Smith (1990) altered the standard for assessing which laws will be deemed to “prohibit[] the free exercise [of religion]” (and thus violate the First Amendment), it reaffirmed that “the ‘exercise of religion’ often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation.” (And, of course, even if Smith had narrowed the constitutional definition of “exercise of religion,” the very point of RFRA was to restore the pre-Smith regime, so there would be no reason that Smith’s constitutional definition would narrow the meaning of RFRA’s statutory term “exercise of religion.”)
Indeed, HHS, in explaining its decision to allow the HHS bureaucracy to establish exemptions from the mandate for an extremely narrow category of “religious employers,” states that “it is appropriate [for the bureaucracy to take] into account the effect on the religious beliefs of certain religious employers if coverage of contraceptive services were required in the group health plans in which employees in certain religious positions participate.” (See page 46623 of HHS’s interim rule (emphasis added).) HHS is thus acknowledging that these employers are engaged in an “exercise of religion” (within the meaning of RFRA) when they refuse to provide health insurance that covers contraceptives. (Why else even contemplate a religious exemption?) Although HHS doesn’t see fit to allow exemptions to take into account the effect on the religious beliefs of other employers, that doesn’t change the fact that it implicitly concedes that other employers who refuse, for religious reasons, to provide health insurance that covers contraceptives are likewise engaged in an “exercise of religion.”
In short, it’s clear, for purposes of RFRA, that a person engages in an “exercise of religion” when he, for religious reasons, refuses to provide health insurance that covers contraceptives and abortifacients.
There they go again—“they” being the anti-religious zealots who are now dominating the Obama administration’s decision making.
Two weeks ago, in its ruling in the Hosanna-Tabor case, the Supreme Court unanimously rejected the Obama administration’s position that the Constitution does not require a “ministerial exception” to the employment-discrimination laws. The Court specifically repudiated what even Justice Kagan called the Obama administration’s “amazing” argument that the Religion Clauses have no bearing on the matter.
Unchastened, HHS Secretary Kathleen Sebelius last week renewed her declared “war” against the Catholic church in America and against faithful Catholics (as well as against other religious organizations and believers who share the Catholic opposition to contraceptives and/or abortifacients). Specifically, she announced that HHS, in implementing Obamacare, would require most health-insurance plans to include in the preventive services they cover all FDA-approved forms of contraception (including contraceptives that sometimes operate as abortifacients).
The HHS rule would allow (but not require) the HHS bureaucracy to establish exemptions from this mandate only for an extremely narrow category of “religious employers”: an organization qualifies as a “religious employer” only if its purpose is the “inculcation of religious values,” it “primarily employs persons who share the religious tenets of the organization,” and it “serves primarily persons who share the religious tenets of the organization.” As the head of Catholic Charities USA observed, “the ministry of Jesus Christ himself” would not qualify for the exemption. Nor will Catholic Charities, Catholic Relief Services, Catholic hospitals, food banks, homeless shelters, most Catholic schools, and even many or most diocesan offices, much less Catholic business owners who strive to conduct their businesses in accordance with their religious beliefs.
The HHS rule has properly aroused criticism across the political spectrum for its trampling of religious liberty, as this vehement “J’Accuse” essay by Michael Sean Winters, “a liberal and a Democrat,” illustrates. (For other examples, see the Washington Post’s house editorial and NRO’s.) Unlike Winters, I’m not at all surprised that, when President Obama goes beyond talk to action, he sides with his “friends at Planned Parenthood and NARAL” and “treat[s] shamefully those Catholics who went out on a limb to support” him.
What I do find remarkable—even amazing (to reprise Justice Kagan’s term)—is that the HHS mandate appears to be so clearly unlawful. In particular, I don’t see how the Obama administration could actually believe that the HHS mandate is compatible with the federal Religious Freedom Restoration Act. (The Supreme Court held in City of Boerne v. Flores (1997) that Congress lacked the power to apply RFRA against the states, but the Court recognizes, as its decision in Gonzales v. O Centro Espirita Beneficiente Uniao de Vegetal (2006) makes clear, that RFRA applies against the federal government.)
may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
This standard applies “even if the burden results from a rule of general applicability.” The term “exercise of religion” is, in turn, defined broadly to mean “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”
RFRA, I’ll note, is the Becket Fund for Religious Liberty’s lead ground of attack on the HHS mandate in the twocases that it has filed on behalf of Belmont Abbey College and Colorado Christian University.
I will explain in follow-up posts why I don’t see how the HHS mandate can be reconciled with RFRA.
2006—From the ski slopes of Davos, Switzerland, aristocrat and billionaire-by-marriage John Kerry panders to the faux-populist sentiment of the Left by calling for a filibuster of Supreme Court nominee Samuel Alito, who, Kerry fears, might actually believe that the Constitution leaves some important issues to the people to decide through their elected representatives.
2007—Continuing her practice of hiding behind sexist stereotypes when they suit her, Justice Ginsburg laments being “all alone on the court” a year after Justice O’Connor’s retirement, and she asserts that she and O’Connor “have certain sensitivities that our male colleagues lack.” Ginsburg garners the Weekly Standard’s sympathies.
Perhaps Ginsburg is just emoting publicly about how lonely she is. But it seems more sensible to read her comments as clamoring for the next Supreme Court appointment to be a woman or as criticizing the effect that Justice Alito’s replacement of O’Connor is having on pending cases. Neither would seem becoming of a justice.
I commend Suneal Bedi and William C. Marra for their zealous defense (in an NRO article today) of the freedom of speech. I am even with them most of the way on their favorable comparison of America to England on this score (although I think last March’s Supreme Court decision in the Westboro Baptist case, Snyder v. Phelps, was very badly wrong).
But while it is all well and good to celebrate our First Amendment, and to sing the praises of a Supreme Court that can vindicate it, I cannot think where Bedi and Marra got ideas like the following:
America has a system of judicial review and judicial supremacy, meaning federal courts may strike down laws they believe are unconstitutional, and the executive and legislative branches must follow the courts’ judgments. . . .
By giving courts, rather than the legislature, the final word on the freedom of speech, America provides more robust structural protections . . .
Newt Gingrich has proposed scrapping our system of judicial supremacy and stripping the Supreme Court of its status as final arbiter of the Constitution. Gingrich would not adopt the British model and make the legislature supreme; instead, he would make the three branches co-equal interpreters of the Constitution, and he would empower the executive and legislative branches to ignore court decisions with which they disagree. . . .
Even someone who does not applaud Gingrich’s ideas for what to do about a judiciary run amok–and I certainlydonot applaud them–can dissent from Bedi and Marra’s characterization of the constitutional order made by the founding generation. And even adopting the historically dubious language of “judicial review” to describe the power that is on offer in the Federalist, or Marbury v. Madison, or Joseph Story’s Commentaries, it is still a long, long way from “judicial supremacy,” the proposition that the judiciary has “the final word” or is the “final arbiter” of the meaning of the Constitution. None of these sources from the founding and the early republic advanced such a proposition.
The view that under certain circumstances the constitutional opinions of the Supreme Court can be disregarded by the officeholders in the other two branches of the federal government is so far from being some strange Newt-onian innovation that it has been held by Thomas Jefferson, James Madison, Andrew Jackson, and perhaps most famously by Abraham Lincoln, who rightly ignored Dred Scott and Ex parte Merryman. In our own day this view has been resuscitated by widely read books by scholars such as Robert Lowry Clinton and Larry Kramer, among others.
Newt’s ideas about what to do about the pretensions of judicial supremacy are quite bad enough. But they are not as bad as Bedi and Marra say. While Gingrich is wrong about the remedy, he is still quite right about the diagnosis.
1990—President George H.W. Bush nominates New Hampshire supreme court justice David Hackett Souter to a seat on the First Circuit. In a tragic blunder, less than three months after Souter accepts his First Circuit appointment, President Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement. Deploying his full arsenal of clichés, Teddy Kennedy rails against Souter’s Supreme Court nomination. His efforts, alas, prove unsuccessful.
The House Oversight Committee is holding a hearing tomorrow at 1:30 entitled “How Will the CFPB Function Under Richard Cordray?” This issue will most certainly be relevant this election cycle as President Obama appears to have every intention of using the CFPB as a political bludgeon for his “fairness” narrative, which is expected to be on full display during tomorrow’s State of the Union address. My colleague Ammon Simon has written about the Consumer Financial Protection Bureau before, and will be live-tweeting the event on Twitter, @judicialnetwork.
This would be a good time for the committee to ask Mr. Cordray about the CFPB’s grave separation of powers problems, as C. Boyden Gray and John Shu detailed in this Federalist Society paper. Ambassador Gray, a former White House Counsel, explained in a statement issued after President Obama’s unilateral, non-recess appointment of Mr. Cordray:
The CFPB is insulated from each of the three branches of government that have a constitutional duty to oversee it. It is independently funded and consequently subject to no budget review, and no meaningful Congressional oversight. And because Dodd-Frank protects the CFPB Director against removal by the president, the next president would not be able to remove a Senate-confirmed CFPB Director at will. Finally, there is extremely limited judicial review of the CFPB’s actions.
In a bracing Public Discourse essay, law professor Michael Stokes Paulsen offers a “brief tour of Roe’s unbearable wrongness [that] begins with Roe’s radicalism—its extreme holding creating a plenary right to obtain or commit abortion—proceeds with Roe’s legal untenability, and concludes with Roe’s immorality and the moral problem of our seeming passivity and quiescence in response to the greatest legal and moral wrongs of our age.” Here is a lengthy excerpt from his third section, which poses more of a challenge to those of us who recognize abortion as a grave evil than to those who genuinely don’t:
Here is the problem, undressed: If human embryonic life is morally worthy of protection, we have permitted sixty million murders under our watch. Faced with this prospect, many of us—maybe even most—flee from the facts. We deny that the living human embryo is “truly” or “fully” human life, adopt a view that whether the embryo or fetus is human “depends,” or can be judged in degrees, on a sliding scale over the course of pregnancy; or we proclaim uncertainty about the facts of human biology; or we proclaim moral agnosticism about the propriety of “imposing our views on others”; or we throw up our hands and give up because moral opposition to an entrenched, pervasive social practice is not worth the effort, discomfort, and social costs. The one position not on the table—the one possibility too hard to look at—is that abortion is a grave moral wrong on a par with the greatest human moral atrocities of all time and that we passively, almost willingly, accept it as such.
All of this should tell us a few more sobering things. It should tell us that, much as we would like to believe that human beings have become more morally conscious, more sensitive to injustice and intolerant of clear evil, it remains the case that we often either fail to recognize it in our midst, or refuse to respond to it decisively, out of self-interest or cowardice. It should tell us that, much as we would like to think that we surely would have stood bravely against slavery, even if embedded in a nineteenth-century society that tolerated and accepted it as a legal right, we might have acquiesced or been tepid in our condemnation. It should tell us that, much as we would like to think we would never have put up with what transpired in Nazi Germany in the 1930s and the 1940s, the evidence of our lives in twenty-first century America is that we might have put up with quite a lot.
And it should tell us finally, that, as much as we may claim to admire our governmental and constitutional system, the decisions of the Supreme Court in the abortion cases expose the Court—at least on this matter of life, death, and law—as a lawless, rogue institution capable of the most monstrous of injustices in the name of law. The Court has, with its abortion decisions, surely forfeited its legal and moral legitimacy as an institution. It has forfeited its claimed authority to speak for the Constitution. It has forfeited its entitlement to have its decisions respected, and followed, by the other branches of government, by the states, and by the people. Yet the docility of the American people with respect to Roe and abortion rivals the pliancy of the most cowardly, servile peoples toward ruinous, brutal, anti-democratic regimes throughout world history.
1983—After telling his girlfriend that “we’re going to kill Charles,” William Wayne Thompson, age 15, and three older friends brutally murder his former brother-in-law, Charles Keene. After they beat Keene, Thompson shoots him in the head, cuts his throat and chest, attaches a chain and blocks to his body, and throws the corpse into a river “so the fish could eat his body.”
Some five years later, in Thompson v. Oklahoma, a four-Justice plurality (opinion by Justice Stevens, joined by Justices Brennan, Marshall, and Blackmun) imagines “evolving standards of decency” under the Eighth Amendment that (as Justice Scalia’s dissent aptly summarizes it) forbid the determination that any “criminal so much as one day under 16, after individuated consideration of his circumstances, including the overcoming of a presumption that he should not be tried as an adult, can possibly be deemed mature and responsible enough to be punished with death for any crime.” (As Scalia points out in a later dissent, the same folks who think that minors can’t possibly be mature enough to be held fully responsible for murders they commit insist that juveniles are mature enough to get an abortion without parental consent, but “[w]hether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood.”)
1992—In Hodges v. State, the Florida supreme court reviews the death sentence of a man who, on the morning that he was scheduled for a hearing on a charge of indecent exposure, shot to death the 20-year-old female clerk who had complained of his conduct. Chief justice Rosemary Barkett, in solo dissent from the court’s affirmance of the death sentence, opines that the two statutorily defined aggravating factors on which the death sentence had been based—witness elimination and a killing that was cold, calculated, and premeditated—were “so intertwined that they should be considered as one” and votes to vacate the death sentence. Her dissent makes no effort to distinguish her court’s own precedent that permitted aggravators to be counted separately where they relate to “separate analytical concepts.”
Despite—or, rather, because of—her stunningly terrible record as a judge, President Clinton nominates Barkett to the Eleventh Circuit in 1993, and, with overwhelming support from Senate Democrats (an “outstanding jurist,” quoth Teddy Kennedy), she is confirmed and appointed in 1994. She remains on the Eleventh Circuit, where she has continued her malfeasance.
1973—For the second time in American history, the Supreme Court denies American citizens the authority to protect the basic rights of an entire class of human beings. In Roe v. Wade—the Dred Scott ruling of our age—Justice Blackmun’s majority opinion feigns not to “resolve the [purportedly] difficult question of when life begins,” but in fact rules illegitimate any legislative determination that unborn human beings are deserving of legal protection from abortion. Roe and Doe v. Bolton (decided the same day) impose on all Americans a radical regime of essentially unrestricted abortion throughout pregnancy, all the way (under the predominant reading of Doe) until birth.
Despite scathing criticism, including from supporters of abortion (see point 2 here), Roe’s lawless power grab continues to roil American politics by preventing Americans from working together, through an ongoing process of persuasion, to establish and revise abortion policies.
1996—Federal district judge Harold Baer rules (in United States v. Bayless) that New York City police officers did not have reasonable suspicion that criminal activity was afoot when they observed a car with a Michigan license plate moving slowly in the pre-dawn hours in a neighborhood known for drug trafficking, saw the car double-park, observed four males cross the street in single file and, without speaking with the driver, deposit duffle bags in the trunk of the car, and saw the men scatter when they noticed that the officers were observing them. Dismissing this last fact, Baer opines that publicity about the prosecution of a corrupt police officer in that neighborhood eliminated any inference that the men were engaged in evasive conduct. Indeed, “had the men not run when the cops began to stare at them, it would have been unusual.” Finding that the investigatory stop by the police violated the Fourth Amendment, Baer orders suppression of the evidence of the 34 kilograms of cocaine and two kilograms of heroin found in the duffle bags in the trunk.
Amidst the ensuing public outcry over Baer’s ruling—including comments by President Clinton that he might try to get his own appointee to resign—Baer reverses himself two months later and laments the “hyperbole (dicta) in my initial decision [that] regretfully may have demeaned the law-abiding men and women who make Washington Heights their home and the vast majority of the dedicated men and women in blue who patrol the streets of our great City.”
This Sunday marks the 39th anniversary of the Supreme Court’s tragically wrong decision in Roe v. Wade. I will use this occasion to reiterate some elementary points:
As I stated in my 2005 Senate Judiciary Committee testimony:
Roe v. Wade marks the second time in American history that the Supreme Court has invoked “substantive due process” to deny American citizens the authority to protect the basic rights of an entire class of human beings. The first time, of course, was the Court’s infamous 1857 decision in the Dred Scott case (Dred Scott v. Sandford, 60 U.S. 393 (1857)). There, the Court held that the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories, could not constitutionally be applied to persons who brought their slaves into free territory. Such a prohibition, the Court nakedly asserted, “could hardly be dignified with the name of due process.” Id. at 450. Thus were discarded the efforts of the people, through their representatives, to resolve politically and peacefully the greatest moral issue of their age. Chief Justice Taney and his concurring colleagues thought that they were conclusively resolving the issue of slavery. Instead, they only made all the more inevitable the Civil War that erupted four years later.
Roe is the Dred Scott of our age. Like few other Supreme Court cases in our nation’s history, Roe is not merely patently wrong but also fundamentally hostile to core precepts of American government and citizenship. Roe is a lawless power grab by the Supreme Court, an unconstitutional act of aggression by the Court against the political branches and the American people. Roe prevents all Americans from working together, through an ongoing process of peaceful and vigorous persuasion, to establish and revise the policies on abortion governing our respective states. Roe imposes on all Americans a radical regime of unrestricted abortion for any reason all the way up to viability—and, under the predominant reading of sloppy language in Roe’s companion case, Doe v. Bolton, essentially unrestricted even in the period from viability until birth. Roe fuels endless litigation in which pro-abortion extremists challenge modest abortion-related measures that state legislators have enacted and that are overwhelmingly favored by the public—provisions, for example, seeking to ensure informed consent and parental involvement for minors and barring atrocities like partial-birth abortion. Roe disenfranchises the millions and millions of patriotic American citizens who believe that the self-evident truth proclaimed in the Declaration of Independence—that all men are created equal and are endowed by their Creator with an unalienable right to life—warrants significant governmental protection of the lives of unborn human beings.
Thirty-nine years is a long time, but it’s still well short of the 58 years that it took the Supreme Court to overturn its decision in Plessy v. Ferguson. The Court had a clear opportunity to set things straight twenty years ago in Planned Parenthood v. Casey, but it badly bungled it. (See This Day entry for June 29, 1992.) Ignoring the fact that it was Roe that ignited the “national division” on abortion, the five-Justice majority in Casey “call[ed] the contending sides [on abortion] to end their national division by accepting” what it implausibly claimed was “a common mandate rooted in the Constitution.” But twenty years later, the abortion issue remains as contentious and divisive as ever.
If the American people are going to be permitted to exercise their authority as citizens, then all Americans, whatever their views on abortion, should recognize that the Supreme Court’s unconstitutional power grab on this issue must end and that the political issue of whether and how to regulate abortions should be returned where it belongs—to the people and to the political processes in the states.
1983—Eight years after the New Jersey supreme court (in Mount Laurel I) read into the state constitution an obligation on the part of each city to use its land-use regulations to “make realistically possible the opportunity for an appropriate choice of housing for all categories of people who may desire to live there,” the court (in Mount Laurel II) declares the need for “a strong judicial hand” to “rectify the ineffective [municipal] administration” of its concocted doctrine. To that end, the court invents a set of judicial “remedies” that deprive cities of the ordinary procedural rights that litigants enjoy.
1972—The judicial takeover of school funding in New Jersey commences as state trial judge Theodore Botter rules (in Robinson v. Cahill) that New Jersey’s funding system, which relies heavily on local property taxes, violates the state constitutional provision, dating from 1875, that declares that the legislature “shall provide for the maintenance and support of a thorough and efficient system of free public schools” and also violates the equal-protection guarantees that are supposedly implicit in the state constitution and that are in the federal Constitution.
1989—Call it the Case of the Surprised Burglar. Two months after breaking up with his girlfriend, Timothy C. Hudson, armed with a knife, broke into her home during the night. The former girlfriend, having received threats from him, was spending the night elsewhere. But her roommate was at home. When she began screaming at him to leave, Hudson stabbed her to death, put her body in the trunk of her car, and dumped her in a drainage ditch in a tomato field. Hudson was convicted and sentenced to death.
In her dissent from the Florida supreme court’s affirmance of the death sentence (in Hudson v. State), Rosemary Barkett concludes that the death penalty was disproportionate to the offense—because Hudson “was apparently surprised by the victim during [his] burglarizing of [her] home.”
2011—Another typical day at the Supreme Court: Three rulings, three unanimous reversals of Ninth Circuit rulings (two of which were authored by Judge Stephen Reinhardt).
How did the formation of the Alliance Defense Fund come about?
In the early ’90s, a number of people of different faith backgrounds began to talk to each other about grave concerns with the loss of religious liberty in the court system. And they basically discovered that the community of faith — the body of Christ, the Christians, however you want to describe it — was AWOL.
And, so, they said, “Well, what we ought to do is form a response.” The idea was: Let’s get as many people as we can across faith lines to stand together and defend the things we can agree on. In their conversations that came to be three things: our religious freedom, the sanctity of human life, and the preservation of marriage and the traditional family. Those were the three things everybody could agree on, and they asked me if I’d be the first leader of the organization.
What were the Alliance Defense Fund’s first cases?
The mission of the ADF from the outset was three things: strategy, training and funding, all to further litigation. As we were launched, we did not have any attorneys on the staff other than myself, and so we began to fund a number of cases as we raised money. There were two Supreme Court cases that came within our first year: The Rosenberger case and the Boston parade case, which is called Hurley.
Hurley involved veterans in Boston who held an annual parade to celebrate America and American values. A group of homosexual advocates came to that group and said, “Hey, you’re marching on public streets. We demand to march in your parade.” The veterans said, “No way; we will not allow you to march in our parade because your message is not consistent with ours. This is a privately funded and privately run parade, even though it’s on public streets.” And they found a volunteer lawyer who would help them, and they began to fight. They lost the case in every court, every human-rights body, and they lost even in the Massachusetts Supreme Judicial Court. Much of this was going on before the ADF existed.
They were out of funds, they needed help, and we agreed to fund their volunteer attorney, Chester Darling, who had literally gotten to the point he was cashing in his IRAs to help these people because he was so committed to their cause. We loved Chester. We brought him down to Washington, we did a moot court from some of the brightest Supreme Court practitioners in the country, and we helped put together the court briefs. And by the grace of God, it was a 9-0 win before the U.S. Supreme Court. That decision was later part of the precedent to win the Boy Scouts case when they were challenged in Dale.
In the same session of the court was the case of Ron Rosenberger. Ron was a student at the University of Virginia who had started a little Christian newspaper called Wide Awake. He raised money for a while, got it out, then he ran out of money and wanted to continue his paper. And he looked around and he said, “How come all these other campus newspapers and student groups have student fees’ funding, but I don’t?” So he applied for the money, and, basically, they told him that Christianity is not part of the culture, that the other entities that are being funded are cultural groups.
Ron didn’t take too well to that, and he found a volunteer lawyer. They went through the courts. They lost in federal district court; they lost in the Fourth Circuit. And then we came along. We raised money, and we funded the petition for certiorari that asked the Supreme Court to hear their case. When the court agreed, we funded the costs of the case and a number of amicus briefs. And we won that one, 5-4, holding out the principle that you can’t discriminate on viewpoints just because it’s a religious entity. That case has been cited more than 1,500 times now in federal-court decisions.
So those were a couple of very important first cases.
When Father Richard John Neuhaus and Chuck Colson and other prominent leaders formed Evangelicals and Catholics Together in 1997, they declared in their foundational statement that “we defend religious freedom for all. Such freedom is grounded in the dignity of the human person created in the image of God and must be protected also in civil law.” That sounds very close to the Alliance Defense Fund’s philosophy.
Absolutely. Earlier, John Paul II had provided a document to the Helsinki Commission very early in his papacy, where he talked about basic premises from natural law relating to religious freedom for individuals and communities. I have now distributed copies of that document to hundreds of evangelicals and Protestants, and we’ve found almost a 100% unity in terms of using the definitions that John Paul II laid out there. When we go back and talk about first principles, on the areas where the Alliance Defense Fund is called to serve, there is absolutely no significant distinction.
One other principle that I’ve found out is very important and that I’ve talked to all the other leaders about is John Paul II’s concept of ecumenism. In the world today, there’s this touchy-feely idea of ecumenism. A bunch of people get together in a room, they ignore the elephants, and they basically pretend that everything is wonderful and nobody disagrees on anything. And they come out with these little feathery statements that go nowhere.
John Paul II had almost the opposite view: He said that the best ecumenism is when you acknowledge your differences. And so we go into that room, we talk about what you can agree on, and when you leave the room, you leave in absolute unity on those things that draw you together.
2007—In a house editorial, the Los Angeles Times encourages Senate Democrats to display a “cooperative spirit” rather than “obstructionism”, and it specifically recommends that they confirm D.C. Circuit nominee Peter Keisler. But over the next two years Senate Democrats instead confirm only 10 appellate judges, and Keisler’s nomination is one of many to expire from inaction.
The New York Times’s Adam Liptak reports on an Eighth Circuit decision reinstating a lawsuit by Teresa Wagner, now a part-time employee at the University of Iowa College of Law, alleging that the law school violated her First Amendment right to political belief and association by passing her over for a full time position as a Legal Analysis, Writing, and Research (LAWR) instructor at the law school. Prior to her applying to the law school, Ms. Wagner, a registered Republican, had worked at two socially conservative organizations, the Family Research Council and the National Right to Life Committee.
Ryan Koopmans picked up on this story on December 28, over at Iowa’s Appellate Blog.
The law suit is a 42 U.S.C. § 1983 suit against the law school’s then dean, Carolyn Jones, under a law that allows individuals to sue state actors for alleged constitutional violations. As dean of a state law school, Dean Jones is a state actor, subject to different constitutional constraints than she would be as a dean of a private law school.
Assuming that the Eighth Circuit’s interpretation of the law is correct, at first glance, the facts of the case look particularly bad for the law school.
The Eighth Circuit’s decision provides the factual background for the case. Some of the more salient facts in favor of Ms. Wagner include the following:
Ms. Wagner had teaching experience, teaching “Advanced Legal Research, Writing & Analysis at George Mason University School of Law in Washington, D.C. for two years.
“There is indication that she interviewed well. The University’s Faculty Appointments Committee chair, Mark Janis, informed her that “the Committee ‘enjoyed meeting with you [during her second interview] and we’re very enthusiastic about your candidacy for a full-time position in the LAWR Program.’” Ms. Wagner also received positive feedback from students and faculty members.
Then-Associate Dean John Carlson told her to conceal her interview with Ave Maria School of Law, because it was a conservative school. He later became concerned that politics may have played a role in the law school’s refusing to hire Ms. Wagner.
Despite there being two full-time LAWR slots available, the school only hired Matt Williamson, an adjunct LAWR instructor who “had never practiced law, had no legal publications, and had no prior successful teaching experience.” But, Mr. Williamson was a liberal.
Ms. Wagner was also, without explanation, passed up for a part-time adjunct position, in favor of two candidates without prior teaching experience, neither of whom could have been considered for a full-time position.
In acknowledging Ms. Wagner’s potential case, conservatives aren’t hypocritically advocating for a different kind of diversity. They are protesting outright discrimination. There are arguably reasonable instances where educational institutions are justified in taking a candidate’s political views into account when hiring faculty. This is most certainly not one of those instances.
Regardless of how a jury eventually evaluates Ms. Wagner’s claims, the case speaks to a broader point. The far Left weaponizes “diversity” when it upholds their purposes but jettisons that commitment when it does not suit their desired result. Purporting to favor intellectual diversity, they also exclude conservative world views, laying out the contours of acceptable intellectual thoughts and political activities. This problem will only become larger in the future, so conservatives must be vigilant in rooting out this increasingly outright discrimination.
2002—It turns out that there are limits to the courts’ overreaching interpretations of the religious guarantees of the Establishment Clause—at least when the rights of religious conservatives are at stake. When various religious groups sponsored an advertising campaign offering “healing for homosexuals”, the San Francisco board of supervisors sprang into action. It sent a letter to the groups “denounc[ing] your hateful rhetoric” and alleging a “direct correlation” between that rhetoric and the “horrible crimes committed against gays and lesbians,” including the brutal murder of Matthew Shepard. It also adopted two formal resolutions. One called for the “Religious Right to take accountability for the impact of their long-standing rhetoric, which leads to a climate of mistrust and discrimination that can open the door to horrible crimes such as” a recent murder. The second resolution stated that the groups’ ad campaign encouraged maltreatment of homosexuals and urged local television stations not to broadcast the groups’ ads.
In American Family Association v. City and County of San Francisco, a divided panel of the Ninth Circuit rules that the city government’s actions did not violate modern Establishment Clausedoctrine. But as Judge John T. Noonan observes in dissent: “To assert that a group’s religious message and religious categorization of conduct are responsible for murder is to attack the group’s religion.… [H]ere the city had a plausible, indeed laudable purpose, to decrease vicious violence on account of sexual orientation. [But it] used a means that officially stigmatized a religious belief as productive of murderous consequences.”
Politico reports Senator Robert Menendez has dropped his opposition to the nomination of Magistrate Judge Patty Shwartz to the U.S. Court of Appeals for the Third Circuit. The Senator was allegedly concerned about her understanding of constitutional law.
Menendez said he and Shwartz had an “in-depth discussion” earlier Friday and Menendez says he’ll now allow Shwartz’s nomination to proceed. In a statement, the New Jersey senator said Shwartz “satisfactorily” responded to questions he had on legal matters including the First Amendment rights of corporations and constitutional limits on executive branch powers.
“She adequately allayed my earlier concerns, and I will be returning my blue slip,” said Menendez, who had vehemently denied that he was holding up Shwartz’s nomination because of her personal ties.
1989—“Kreimer’s odor prevents staff member from completing copying task.” So reads the day’s entry in the logbook that the Morristown, New Jersey, public library has set up to chronicle the disturbances caused by Richard R. Kreimer, a homeless man who frequently camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees.
Some two years later, poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” federal district judge H. Lee Sarokin will rule that the library is a traditional public forum like a street or sidewalk, that the library’s policies are overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression. (See This Day for May 22, 1991.) The stench produced by Sarokin’s opinion will ultimately be dispelled by a unanimous Third Circuit ruling rejecting each of Sarokin’s grounds.
Law professor Michael Stokes Paulsen has an excellent Public Discourse essay—“Hosanna in the Highest!”—on the Supreme Court’s unanimous ruling in Hosanna-Tabor. As Paulsen puts it:
The decision in Hosanna-Tabor is an occasion for celebration, for dancing in the streets (or, for some Baptists, simply praising the Lord). Essentially everything the Court said was right. And every right thing it said is important—a point brought home by considering the consequences if the Court had ruled the opposite way, as the Obama administration had urged and as many feared possible.
Here’s one noteworthy excerpt:
[T]he rule that Hosanna-Tabor embraces is a broad, principled rule of First Amendment constitutional law. The “ministerial exception” label really ought to be discarded, for it is now something of a misnomer, a relic of the pre-Hosanna-Tabor,lower court-developed doctrinal approach. Rather, the right should be understood as the “religious autonomy right”—an “exception” to nothing but a principle of its own.…
The principle established by the First Amendment is that a religious group has the “right to shape its own faith and mission through its appointments” and thus has plenary “control over the selection of those who will personify [its] beliefs.” This includes teachers, lay leaders, and persons who perform a mix of religious and seemingly “secular” functions. The right extends to those whom a religious community, operating under its own system of rules, designates as central to its religious mission and identity. The Court’s one-word descriptor perhaps says it best: those persons that the community identifies as personifying its religious identity….
This interpretation has important consequences beyond direct employment regulation through anti-discrimination laws. Student religious groups, at state university campuses and at public schools, are religious communities, too. So are para-church ministries and many other types of religious organizations. They, too, have the right to control the selection of those who personify their beliefs, and to shape their own faith and mission through their decisions.
After oral argument, it’s worth recalling, there appeared little prospect of a clear ruling, much less a unanimous one. Paulsen properly credits Chief Justice Roberts:
The achievement is, in significant part, that of Chief Justice John Roberts, a masterful legal craftsman, whose skills as a legal advocate and persuader—forged by years as a leading Supreme Court practitioner, brief writer, and oral advocate—enabled him to build a unanimous Court in support of a dramatic defense of religious liberty, in an important context. He also left a trail of wonderful bread crumbs for future possible decisions. If not picked off by crows, Hosanna-Tabor’s statements of principle may become even more important than its specific holding.
Is anyone really surprised that President Obama chose to provoke a major confrontation with Senate Republicans by making “recess” appointments to the CFPB and NLRB? The president’s decision has certainly raised some very interesting legal questions. A growing number of constitutional scholars, and even some folks on the left, are making a compelling case that the appointments were unlawful. But this is about November, not minority obstruction or even any policy debate.
If this weren’t a cynical election-year ploy, President Obama could have made these appointments just a short time later. As even David Arkush of the left-leaning, anti-corporate organization Public Citizen has argued, Obama could have made his appointments after using his Article II, Section III power to adjourn both houses of Congress. In short, this was a controversy of convenience.
The appointment of Richard Cordray was a transparent move to excite the Occupy Wall Street crowd and credential himself as a disciple of Huey Long. What’s next, displaying his shoes to crowds to show them that, unlike Mitt Romney, his have holes in them? That’ll put the plutocrats in their place!
While Republicans and conservatives are forced to defend complicated positions regarding the rule of law, President Obama brags about his new Wall Street Cop . . . from Ohio. The Right will successfully define terms like intra-session, inter-session, and “recess,” but the president will present folks with a binary choice between a world where Wall Street’s wizards of high finance are supervised and one where they use tax dollars to pay themselves extravagant bonuses. You don’t need a poll to show how this will play in Peoria.
Of course, that binary choice is absurd. Republicans oppose Cordray’s nomination because President Obama and Senate Democrats continue to reject reasonable reforms that would bring the CFPB in line with other federal agencies and make it more accountable to the American people. Just as they did with Obamacare, Dodd-Frank’s authors took extraordinary steps to ensure that the CFPB avoids the traditional limits on government power that characterize our constitutional system. As Boyden Gray explained in a statement circulated yesterday:
The CFPB is insulated from each of the three branches of government that have a constitutional duty to oversee it. It is independently funded and consequently subject to no budget review, and no meaningful Congressional oversight. And because Dodd-Frank protects the CFPB Director against removal by the president, the next president would not be able to remove a Senate-confirmed CFPB Director at will. Finally, there is extremely limited judicial review of the CFPB’s actions.
So a former politician with unprecedented and virtually unchecked power will decide how and when credit is allocated in the United States. Should hard-working Americans have access to home loans, college loans, and credit cards? On what terms? What if I want to pay a lower interest rate on my mortgage in exchange for other terms that are more favorable to the lending bank? You’ll have to ask the head of the CFPB.
President Obama is building and insulating a legal structure that will make it easier for him, his allies, and his predecessors to use the national government’s resources to accommodate favored parties. A nicer, more “progressive” way of saying it might be to say that he is making our government more efficient for “experts” to manage. In the end, President Obama is just checking constituency boxes. The Obamacare mandate takes care of the insurance industry, the NLRB takes care of the unions, and Dodd-Frank makes big bank bailouts our official policy. Judging by the president’s standard operating procedure, you should expect future winners to be his campaign supporters and the losers to be, well, the rest of us
— Ammon Simon is a policy counsel at the Judicial Crisis Network and former president of the Columbia Law School Republicans and the Columbia Law Students for Life.
It turns out that the Office of Legal Counsel did indeed issue an opinion approving of President Obama’s recent recess appointments. OLC has now made its 23-page opinion public. (I haven’t read it yet.)
There has been broadagreement that President Obama didn’t get it right in his State of the Union address two years ago when he criticized the Supreme Court’s Citizens United decision for supposedly “revers[ing] a century of law to open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” Still, it’s noteworthy that on Monday a unanimous Supreme Court effectively declared Obama’s assertion about foreign corporations “not true.”
Federal law (2 U.S.C. § 441e) bars foreign nationals, other than lawful permanent residents, from making contributions to candidates, from contributing to political parties, and from making campaign expenditures. Last August, in Bluman v. FEC, a three-judge district court ruled that the Constitution allows these prohibitions to apply to foreign citizens who are lawfully in the United States on temporary work visas. On Monday, a unanimous Supreme Court summarily affirmed the district court’s judgment. (See first item in Court’s order list.)
In a footnote to its opinion, the district court noted that its holding “means, of course, that foreign corporations are likewise barred from making contributions and expenditures prohibited by” the same federal law. (The definition of “foreign national” in section 441e includes a “foreign principal,” which term in turn includes foreign corporations.) While it’s true (as Eugene Volokh explains) that the Court has said that its “summary disposition affirms only the judgment of the court below, and no more may be read into [its] action than was essential to sustain that judgment,” it is difficult to imagine any possible basis on which the Court could hold that the prohibitions of section 441e can apply to foreign citizens who are lawfully in the United States on temporary work visas but can’t apply to foreign corporations.
1971—Justices Douglas, Brennan and Marshall dissent from the Court’s ruling (in Wyman v. James) that a state may condition a person’s receipt of benefits under the Aid to Families with Dependent Children program on that person’s permitting home visits by a caseworker. Douglas simplistically misstates the “central question” as “whether the government by force of its largesse has the power to ‘buy up’ rights guaranteed by the Constitution,” but the real difficulty comes in sorting out in a principled fashion why the answer to that overbroad question is in some circumstances yes and in others no.
Evidently oblivious to his own career of abusing power, Douglas, who clearly viewed himself as a great man, also quotes Lord Acton: “Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, [especially] when you superadd the tendency or the certainty of corruption by authority.” As Seventh Circuit judge Richard A. Posner has written (see This Day for April 4, 1939), Douglas was certainly a bad man: “Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice.… Rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed, and devoured by ambition, he was also financially reckless—at once a big spender, a tightwad, and a sponge.”
