Bench Memos

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Oral Arguments in McCullen v. Coakley on Wednesday, January 15


As Ed has previously noted, next Wednesday the Supreme Court will hear oral argument in McCullen v. Coakley, which presents the question of whether the First Amendment permits a state to forbid pro-life counselors and others from peacefully talking to women on a public sidewalk within 35 feet of an abortion clinic. Last year we filed an amicus brief on behalf of several women who were misled by abortion-clinic staff members and who would not have aborted their children if they had been given accurate information at the time. At 2 p.m. that day, I will recap the oral arguments in a Federalist Society teleforum.

Re: Representative Weber in Defense of Marriage


Following up on Gerry Bradley’s post from yesterday about HR 3829, the State Defense of Marriage Act introduced by Rep. Randy Weber (R-TX), have a look at Gerry’s fuller explanation of the need for this law in the wake of the Windsor ruling, at Public Discourse today:

Since Windsor, the [Obama] administration has followed the marriage definition of a couple’s domicile state in a few cases—but only, as far as I can tell, where a program-specific directive from Congress leaves it no choice. The Copyright Act, for example, states plainly that when an author dies, ownership rights shift to the “surviving spouse” according to the “domicile” state’s law. The Social Security Administration is likewise bound, as is the Department of Veterans’ Affairs, to follow the marriage laws of the state in which a couple is domiciled.

This partial practice shows that “domicile” is a familiar and usable concept. But the administration has nonetheless announced that it will ignore the Veterans’ law. And most federal agencies have decided to treat a couple as “married” if they participated in any legally recognized marriage ceremony, anywhere in the United States. The IRS, the Defense Department, the Departments of State and Education—among others—have adopted this state-of-celebration practice.

These agencies have no inherent legal authority to define marriage. Neither does the President or his Attorney General, so long as Congress has exercised its paramount authority to do so. The State Marriage Defense Act will thus restore proper legal order to the scene and correct the administration’s unlawful practice.

Read the rest here.


Witherspoon Institute Summer Seminars


Two seminars on legal topics will be offered this summer by the Witherspoon Institute’s Simon Center on Religion and the Constitution, which I direct.

The first is our biennial Church and State Seminar, for untenured faculty and postdoctoral scholars in history, law, politics, and religion, held July 28 to August 1 on the campus of Princeton Theological Seminary.  Examining the relations of church and state, and the law and politics of religious freedom, in the American revolutionary and founding period, this seminar will be led by distinguished scholars of history, law and politics, and theology: Daniel Dreisbach (American University), Thomas Kidd (Baylor University), and Gerald McDermott (Roanoke College).  For more information, including how to apply, go here.

The second is our annual Moral Foundations of Law Seminar, led by NRO familiar Gerard Bradley of Notre Dame law school.  Open to rising 2L and 3L students in law school, LLM and JSD candidates, and students of jurisprudence and legal philosophy in related fields, this seminar will be held August 4 to 8 on the campus of Princeton University.  In recent years we’ve had impressive numbers of international students in this seminar, which has enriched the experience.  The faculty leading the seminar will also include John Finnis (Oxford and Notre Dame), Robert P. George (Princeton), Adam MacLeod (Faulkner University), and yours truly.  For more information, including how to apply, go here.

While I’m at it, Witherspoon offers a battery of other seminars, offered to high school students, to undergrad and grad students in various fields, and even to medical students.  More links to information here.

This Day in Liberal Judicial Activism—January 10


2006— Less than eight years out of law school, Berkeley law professor Goodwin Liu submits his written testimony to the Senate Judiciary Committee opposing the confirmation of Supreme Court nominee Samuel Alito. Liu concludes his testimony with this demagogic rant:

Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won’t turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination, and where police may search what a warrant permits, and then some.

Nominated a mere four years later by President Obama to a Ninth Circuit seat, Liu acknowledges at his confirmation hearing only that his testimony against Alito used “perhaps unnecessarily flowery language.” Pressed further in post-hearing questions, Liu evidently finally perceives it as in his interest to offer an apology of sorts, though he can’t do so without trying to depict himself as a victim:

[U]pon rereading and reflecting on this passage in response to this question, I believe the passage is unduly harsh and provocative and does not add to the fifteen pages of legal analysis that preceded it. What troubles me most is that the passage has an ad hominem quality that is unfair and hurtful to the nominee—a reality that, in all candor, I did not appreciate then nearly as much as I appreciate now.

In May 2011, Liu will abandon his Ninth Circuit nomination after Democrat Ben Nelson joins Senate Republicans in defeating a cloture vote.


Representative Weber in Defense of Marriage


Earlier today Representative Randy Weber (R., Texas) introduced the State Defense of Marriage Act (HR 3829). It is the necessary and entirely sound response of Congress to the Supreme Court’s same-sex “marriage” decision last June.

In U.S. v. Windsor the Court threw out Section 3 of the federal Defense of Marriage Act (DOMA). Section 3 was an all-purposes definition of marriage; that term meant, in all places where it appeared in federal law, the union of a man and a woman. The term “spouse” pertained to those party to such marriages and none others. The Windsor Court ruled that the national government must instead “defer” to each state’s marital regime. The main reason was to establish a vertical uniformity of treatment within each state: Any couple married in New York, for example, was married there for all local, state, and federal purposes. The prosaic effect of Windsor was that Edith Windsor became “married” for federal estate-tax purposes because New York recognized her Canadian “marriage” to her late lesbian lover.

But Windsor ignored an obvious complication: Which state? What if these New York “spouses” had relocated to Indiana before either passed away? Or to Texas? Or to any of the 30 other states that do not recognize same-sex relationships as legal marriages? Is Uncle Sam supposed to “defer” to the law of their domicile state — Indiana or Texas — or to that of where their “marriage” was celebrated?

There are many reasons of history, sound policy, and a proper grasp of federalism why the answer is: domicile. The Obama administration instead decided to treat as “married” for most federal purposes every couple who married anywhere in the United States. This decision is surprising, and even bizarre, for it would re-institute the sort of vertical dis-uniformity which the Windsor Court sought to eliminate. Newly domiciled Hoosier Edith Windsor and “spouse” would be married federally but not for state law purposes. They could jointly file a 1040 as “married.” But they would have to be strangers on their Indian returns.

The administration’s decision is nonetheless unsurprising, for it is obviously committed to promoting same-sex “marriage” wherever, and whenever, it can do so.

Representative Weber is to be applauded, and his bill supported. HR 3829 does what it can to promote genuine marriage within existing legal constraints, and that is sufficient reason. But it is worth noting, too, that even those possessed of a different view about marriage could support HR 3829, for it is required by a proper regard for the rule of law within our constitutional order. 


Reply to Lederman on “Substantial Burden”—Part 2


See Part 1

Let’s now consider Georgetown law professor Marty Lederman’s response to the second point in my original post. In that second point, I contested the fundamental premise of Marty’s argument—that, in order for employers who object to the HHS mandate to meet the “substantial burden” threshold under RFRA, it is important that federal laws place substantial pressure on them to provide insurance in the first place. In addition, I went further and posited the “modest proposition that people have religious-liberty rights under RFRA in how they carry out all the activities that they freely choose to engage in, not just in how they do the tasks that the federal government places substantial pressure on them to do.”

What is essential to have in mind for purposes of this post is that my supplemental “modest proposition” is not the opposite of Marty’s fundamental premise. In other words, if Marty were to succeed in establishing that my “modest proposition” is wrong, he would not thereby simultaneously establish that his fundamental premise is right. Yet Marty dedicates nearly all of his response only to arguing that my “modest proposition” is wrong.

(I’m very open, by the way, to the possibility that my “modest proposition” is wrong. Perhaps it should be restricted to some range of ordinary activities, or perhaps substantial pressure from some source is necessary, or perhaps some other limitation is needed. I can’t claim to have fully digested Marty’s arguments against the proposition, and I suspect that we may be talking past each other.)

More importantly, in the course of his argument, Marty abandons his own fundamental premise. The easiest way to illustrate this is by examining his responses (and non-responses) to the questions I posed.

A. Here is one of my hypotheticals:

A newly enacted federal law requires that any store that sells beef to the public must also sell comparable pork products. The owner of a kosher deli charges that the law violates his rights under RFRA. In determining whether the law imposes a substantial burden on the owner’s exercise of religion, would a court really find it significant that federal law does not require the deli owner to sell beef?

Marty purports to take on my hypothetical, but he doesn’t directly answer the question I pose. Instead, he attributes to me a different question:

Wouldn’t such a law impose a substantial burden on a kosher butcher, even though he would still have the choice to go into another line of work?

And here is the remarkable answer that he gives to that question:

Well, yes, perhaps it would–if it effectively put the butcher to a choice between vioalting [sic] religious tenets and closing up a shop that he has worked years to develop, and to which he has devoted most of his working life. 

Two comments on Marty’s answer:

1. Imagine 100 owners of separate kosher delis who challenge the law under RFRA. Under Marty’s answer, some of them—those who have “worked years to develop” their business and devoted “most” of their working lives to it—would be substantially burdened by the law, and others, with the same religious convictions but without so many years dedicated to their business, wouldn’t. That strikes me as an amazing result—one so implausible that it ought to call into doubt his whole approach.

2. Note that Marty’s answer doesn’t turn on whether or not federal law requires the deli owner to sell beef. Thus, Marty’s implicit answer to the actual question I asked is: “No, for purposes of conducting the substantial-burden inquiry, a court would not find it significant that federal law does not require the deli owner to sell beef.” In short, Marty is abandoning his fundamental premise that it is important to the substantial-burden inquiry that federal laws place substantial pressure on the person to engage in the broader activity that is burdened.

B. I also posed a hypothetical question about Adell Sherbert, the plaintiff in the landmark case of Sherbert v. Verner:

Are we really to believe that her Free Exercise claim would have failed if, say, she was from a wealthy family and, by some objective standard, was under no pressure to work (but in fact did want to)?

Marty’s remarkable answer: “yes, I assume the Court would not have come out the same way in that hypothetical case, since ‘the pressure upon her to forego [her sabbath observance]’ would not have been ‘unmistakable.’” (Marty’s italics.)

Some comments:

1. Marty’s answer strips the Court’s reference to “unmistakable” “pressure” from its context. Here’s how the Court in Sherbert explains why the “pressure on her is “unmistakable”:

The [agency] ruling [denying Sherbert unemployment compensation] 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.

In exactly the same way, the HHS mandate forces objecting 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.

2. Marty’s answer would have the courts conducting fact-intensive inquiries into the financial well-being of RFRA plaintiffs. The Court in Sherbert conducted no such inquiry and said nothing about Sherbert’s financial condition (beyond, of course, noting her unemployment).

3. Marty’s answer would seem to mean that “a fine imposed against [a person] for her Saturday worship” would not qualify as a substantial burden, and thus would not violate the person’s religious-liberty rights, if the person is wealthy. From the fines of five dollars that had been imposed on the fathers in Wisconsin v. Yoder, I think that it’s clear instead that “substantial” is a very low objective threshold, meaning no more than non-trivial.

C. I also asked Marty why, if his fundamental premise were correct, the Supreme Court didn’t require Adell Sherbert to establish that state laws placed substantial pressure on her to work. Marty doesn’t directly answer that question. But again, the fact that he thinks that Sherbert’s (presumed) financial neediness is what makes the burden substantial shows that he is abandoning his position that it is important to the substantial-burden inquiry that laws be the source of substantial pressure to engage in the broader activity that is burdened.

*  *  *

To sum up: For the reasons set forth in my Part 1 post, Marty’s basic argument fails because federal law continues to place substantial pressure on employers to provide health insurance. Even if that weren’t so, as I discuss in this Part 2 post, Marty abandons his position that it is important to the substantial-burden inquiry that federal laws be the source of substantial pressure to engage in the broader activity that is burdened.

Reply to Lederman on “Substantial Burden”—Part 1


Georgetown law professor Marty Lederman has kindly responded at length to my recent post that takes issue with his assessment whether the HHS mandate places on objecting employers a “substantial burden” within the meaning of the federal Religious Freedom Restoration Act. Or, more precisely, he has responded at length to a second-order argument that I made in support of my second, and secondary, point. At the same time, as I will show, he has conceded and abandoned the essential parts of his affirmative argument.

Even the most diligent reader will, I fear, have difficulty navigating the back-and-forth that has occurred. In particular, I don’t think that any reader of Marty’s response would readily discern the two basic points I made. (Marty and I were colleagues a decade ago at the Office of Legal Counsel in the Justice Department. Marty has done the friendly favor of referring to me by my first name, so I will reciprocate.) So I will try to be as clear as possible while also being succinct.

According to Marty, if federal law isn’t placing substantial pressure on employers to provide health insurance, any burden that the HHS mandate places on objecting employers who do provide health insurance is very weak. I offered two points of criticism. First, it’s clear that federal law is placing substantial pressure on employers to provide health insurance. Second, for purposes of the “substantial burden” inquiry, I doubt that it really matters whether an employer’s decision to provide health insurance is responsive to substantial pressure from federal law.

I will address Marty’s response to the first point in this post and to the second in the next.

At the tail end of his response, in the second of what he calls two “less important” points, Marty expressly “agree[s] [with me] that federal law has been largely responsible for the prevalence of employer-provided insurance for lo these many, pre-ACA decades.” (The italics are Marty’s.) As I see it, his concession means that he has no basis for disputing that federal law is clearly placing substantial pressure on Hobby Lobby and other employers to provide health insurance in order to stay competitive in attracting employees.

In the last paragraph of his response, Marty argues that “the new law will make exchange-based insurance a better option for many employees, and in so doing should diminish appreciably that particular, previous source of the employer incentive to offer insurance.” He may well be right that that is what Obamacare will do at some indeterminate point in the future. (That is, contrary to President Obama’s notorious lie that if you like your insurance, you can keep it, Obamacare may well drive employers to dump their employees into the exchanges.) But that future contingency doesn’t remotely negate the substantial pressure that federal law placed on Hobby Lobby and other employers when they had to decide last year, and places on them when they are deciding here and now, whether to continue to provide health insurance.

In sum, I think that Marty’s concession defeats his broader argument that federal law isn’t placing substantial pressure on employers to provide health insurance.

2014 and the Courts: The Year in Preview


Anyone can recite 2014 predictions for stocks, social media, or fashion trends. But if you want to impress the cute constitutional scholar or law clerk down the hall, you have to be on top of what will be happening in the courts and Senate Judiciary Committee this year. To assist you, I present my 2014 predictions for the intersection of law, judicial nominations, and politics.

As evidence of my prophetic prowess – or at least of my ability to guess right now and again – consider my prediction when President Obama made three nominations to the D.C. Circuit in June 2013. I warned that “by provoking a filibuster showdown with Senate Republicans, Obama is providing Majority Leader Harry Reid with an excuse to use the nuclear option to permanently eliminate the minority’s right to filibuster nominees.” The far-reaching consequences of that correct prediction play a role in many of this year’s predictions.

I begin my predictions at the nation’s highest court:

A winning season at the Supreme Court
In recent Supreme Court terms, conservatives and liberals have been trading “wins” at a fairly even pace, but 2014 will be different. As this term’s most important cases are decided over the next six months, it will be a near sweep for conservatives. Look for the president’s recess appointments, Obamacare’s contraception mandate, and aggregate limits on campaign contributions to be struck down, while prayer by legislators, state prohibitions on racial preferences, and constitutional constraints on Congress’s authority to implement treaties are affirmed.

A more partisan judiciary
Senate Democrats blame their unprecedented use of the nuclear option on unprecedented partisan division in the Senate. Well, guess what — Democrats have now ensured unprecedented partisan division in the federal courts.  With no meaningful check on who Obama and future similarly situated presidents can appoint to the courts, we will see more partisan hacks and extreme ideologues on the federal bench.

Judges as a campaign issue
More ideologically extreme nominees and no opportunity for red-state Democratic senators to hide behind cloture votes — instead, they’ll be forced to openly support or oppose Obama’s most radical nominees — ensures that the issue of judicial nominations will be front and center in key 2014 Senate races.

A rush to capture appeals courts
With control of the D.C. Circuit already achieved, President Obama and Majority Leader Reid will team up to nominate and confirm judges at an increased pace in an attempt to take over additional circuits before the possible loss of Senate control this November, a nearly 50 percent probability according to the University of Iowa Futures Markets.

A flood of regulations
The Washington Post reported last month that “The White House systematically delayed enacting a series of rules on the environment, worker safety and health care to prevent them from becoming points of contention before the 2012 election.” What the Post did not report is that some of the regulations were likely delayed not just with the election in mind, but also with a future takeover of the D.C. Circuit in mind. Now that Obama has succeeded in packing the D.C. Circuit — which plays a huge role in reviewing agency rules — look for a torrent of new regulations.

Increased White House power grabs
We have seen a lot of White House overreach in Obama’s first five years, but it may seem like child’s play in retrospect now that the D.C. Circuit — a key check on executive power grabs — has been neutralized. Expect to see even more outrageous executive orders and unilateral rewriting of statutes.

Decreased transparency
Also in the “I thought it couldn’t get any worse” category is my prediction for Obama-administration transparency. Before Democrats invoked the nuclear option, GOP senators could use the threat of filibustering an executive nomination to get administration documents and other information pertinent to the office the nominee would fill if confirmed. With that leverage gone, this administration will quickly cement its reputation as one of the least transparent in American history.

No Supreme Court filibuster
Nobody knows if there will be another Supreme Court vacancy in Obama’s remaining three years. But if a vacancy occurs and Democrats still control the Senate, expect the Supreme Court exception that Democrats created when they killed the nomination filibuster to fall by the wayside. There is no principled reason for the exception and the precedent of changing Senate rules with just 50 votes has already been set. Democrats created the exception just in case the next Supreme Court vacancy occurs under a GOP president.

Democratic regret
It is true that Democrats may well regret killing the judicial filibuster the next time there’s a Republican president. After all, 73 percent of all votes for judicial filibusters in Senate history have been cast by Democrats against GOP nominees. However, Democratic regret will likely come much sooner because even under Obama, Democrats have a lot more to lose than to gain under the new regime. There is not much to gain because, outside of the D.C. Circuit, judicial filibusters cost Democrats just one Obama nominee — Goodwin Liu — in five years. On the loss side, Democrats face, at the very least, more aggressive Republican use of the “blue slip,” the prerogative of each senator to block judicial nominees from his state. Depending on how much revenge GOP senators decide to exact, they can also make it much harder to confirm the 90-plus percent of nominees who are uncontroversial. Both of these costs impact far more Obama nominees than the judicial filibuster ever did.

— Curt Levey is a constitutional law attorney and president of the Committee for Justice.


The Catholic Court Conspiracy Thickens


Jamie Stiehm’s idiotic anti-Catholic rant against Justice Sotomayor and the Supreme Court has earned widespread derision. But here’s another nefarious development that will alarm Stiehm:

The Supreme Court has scheduled oral argument in the HHS mandate cases (Hobby Lobby and Conestoga Wood) for March 25—which, as Catholic conspirators know, is the Feast of the Annunciation in the Catholic church’s calendar. I’m sure that Stiehm will figure out that Justice Sotomayor lobbied for this date—which, fittingly, is nine months before Christmas—in order to highlight the importance of protecting religious believers from being compelled to participate in the provision of embryo-killing drugs.

Here’s my own tweet-burst (best read from bottom to top) on Stiehm’s deep insights:



Confusing Advice from Utah Governor on Marriage Laws


The Utah governor’s office has issued an e-mail directive to state officials that may raise more questions than it answers. In one sentence, the directive appears to take the mistaken position that “the legal status of those same-sex marriages” is a matter that is exclusively “for the courts to decide.” But in the very next sentence, it “direct[s] state agency compliance with current laws that prohibit the state from recognizing same-sex marriages.”

The directive sets forth this general proposition:

Wherever individuals are in the process of availing themselves of state services related to same-sex marital status, that process is on hold and will stay exactly in that position until a final court decision is issued.

I’m not sure that I understand what that means, and the accompanying example about name changes on driver’s licenses doesn’t help much. It’s one thing to say that name changes that have already been completed “should not be revoked.” A name change is a one-time act that can occur irrespective of marriage. But does the general proposition mean, say, that a state employee who entered into a supposed marriage and then added his supposed spouse to his employee-benefit plans is entitled to keep that person on his plan? Or is the employee in that situation continually “in the process of availing [himself] of state services related to same-sex marital status”? If the former, how is that continuing recognition of the person as a spouse consistent with Utah’s marriage laws?

No good deed goes unpunished. In dealing “carefully and considerately” with the chaos that Judge Shelby’s reckless refusal to stay his decision unleashed, Utah state officials should be careful not to undermine their substantive defense of their marriage laws.

Re: The State of Marriage in Utah


As I’ve explained, I think that the status under Utah law of the supposed marriages that same-sex couples entered into before the Supreme Court’s January 6 order is simple: They’re void.

For anyone who resists this conclusion, consider this hypothetical:

The laws in State X provide that concealed-carry permits for handguns shall not be available to persons who have been convicted of violent felonies and that any permits issued to such persons are “declared void.” A federal district judge rules that the laws violate the Second Amendment, declines to stay his order, and requires State X to provide permits to convicted felons. Two weeks later, after hundreds of convicted felons have obtained concealed-carry permits, the Supreme Court issues an order barring the district judge’s ruling from having any further effect pending appeal. Does anyone doubt that state law means that state officials should treat the issued permits as void?

I am, of course, not “comparing” same-sex couples to violent felons. I am instead simply illustrating the broader principle at work and am doing so through an example that might test the policy biases of those who resist my conclusion about Utah marriage laws. (If there is a better hypothetical, I haven’t thought of it.)

The State of Marriage in Utah


According to this New York Times article, Utah attorney general Sean D. Reyes and his staff have “been poring over Utah’s laws and other legal cases to determine how to treat” the same-sex couples who entered into supposed marriages between the time that federal district judge Robert J. Shelby issued his judgment invalidating Utah’s marriage laws and the Supreme Court’s January 6 order blocking Judge Shelby’s injunction from continuing in effect.

It’s unfortunate for those involved that Judge Shelby’s wildly irresponsible failure to stay his ruling in the first place created this situation. But those who entered into supposed marriages had ample reason to know that they were doing so under a cloud of uncertainty.

In any event, the status of those supposed marriages under Utah law is easy to resolve: The Utah constitution provides that “Marriage consists only of the legal union between a man and a woman” and that “No other domestic union … may be recognized as a marriage.” Utah statutory law further provides that supposed marriages “between persons of the same sex” are “prohibited and declared void” and that it is state policy “to recognize as marriage only the legal union of a man and a woman.” These provisions, which Judge Shelby temporarily blocked from operating, are now fully back in effect. By their plain language, they require that state officials not give any effect or recognition to the supposed marriages that took place during that temporary blockage.

Ruth Marcus’s Hooey on HHS Mandate Cases


In “Hooey and hype over the birth-control mandate,” Washington Post columnist Ruth Marcus provides her guide to the pending HHS mandate cases. In her closing paragraphs, Marcus is somewhat more balanced than most liberal commentators have been. (Not that that’s saying a lot.) But it is Marcus who is dishing out the nonsense when she dismisses the HHS challengers’ arguments “hooey.”

Marcus contends that the legal argument that the Little Sisters of the Poor make against the Obama administration’s supposed “accommodation” is “hooey.” But she doesn’t bother to present their argument (see, e.g., page 8 of their Supreme Court reply brief) why signing the self-certification form isn’t the mere equivalent of an opt-out. Indeed, in the online version of her article, where the reader would expect that Marcus hyperlinks to the Little Sisters’ brief (“They claim …”), she instead links to a New Yorker rant against the Little Sisters. She somehow fails to inform her readers that some 19 of 20 cases have granted religious nonprofits injunctive relief against the self-certification accommodation.

Marcus’s brief claim that it is “even hooier” to argue that business owners and their closely held companies have religious-liberty rights under the federal Religious Freedom Restoration act is even sillier, for reasons that I have spelled out previously (including in this discussion of the Seventh Circuit’s ruling) and that Marcus doesn’t even begin to acknowledge.

This Day in Liberal Judicial Activism—January 7


2006—Illustrating how deeply Democratic attacks on Republican judicial nominees have descended into farce, Senator Edward M. Kennedy fulminates in a Washington Post op-ed, two days before the start of Samuel Alito’s hearing on his Supreme Court nomination, that “credibility” is a “major issue” for Alito. (See here for more.) 

Floyd Abrams on McCullen v. Coakley


Next Wednesday, the Supreme Court will hear argument in McCullen v. Coakley, which involves a First Amendment challenge to a 2007 Massachusetts statute that creates a no-speech zone within 35 feet of an abortion clinic. In today’s Wall Street Journal, liberal First Amendment expert Floyd Abrams explains that the case “presents the court with an opportunity to reconsider what may well be its most indefensible First Amendment ruling so far this century”—its 2000 ruling in Hill v. Colorado, which upheld a criminal statute prohibiting abortion-related speech around abortion clinics. (One quibble: My own judgment is that the year 2000 was the last year of the 20th century, not part of “this century.”)

As Abrams, who identifies himself as a supporter of Roe v. Wade, spells out:

[T]he 2007 Massachusetts law, with its 35-foot exclusion zone, is anything but narrow in its impact. It effectively prevents Eleanor McCullen and her colleagues from engaging in entirely peaceful, nondisruptive antiabortion advocacy via the distribution of leaflets and oral advocacy at the very places it is most likely to be effective. This is what First Amendment law refers to as “overbreadth”—laws that in the course of criminalizing constitutionally unprotected speech or activities limit or impair speech that is fully protected.

At the certiorari stage, I highlighted an amicus brief filed on behalf of three of my favorite First Amendent scholars, Rick Garnett, Michael Stokes Paulsen, and Eugene Volokh. That brief observes that the petitioners’ “free-speech rights [have] tumbled to the bottom of Hill’s slippery slope.” It further notes that legal scholars “from across a broad ideological spectrum have criticized Hill for ratcheting down standard First Amendment analysis of public-forum speech restrictions.” Those scholars (as Abrams also notes) include Laurence Tribe, who has described Hill as “slam-dunk simple and slam-dunk wrong.”

McCullen provides the Court a golden opportunity to repudiate Hill.

Unfortunately, as Abrams points out, the ACLU has done a reversal in the wrong direction since Hill: whereas it argued in Hill that the Colorado statute violated the First Amendment, it now says that its position has “evolved over time” and that the Massachusetts law is constitutional.

Supreme Court Blocks Ruling Against Utah Marriage Laws


In a brief order, and without any recorded dissent, the Supreme Court has blocked federal district judge Robert J. Shelby’s ruling against Utah’s marriage laws from taking effect.

It would be a mistake to read into this action much of anything about the Court’s view of the merits question. But it does indicate that Judge Shelby was (as I have argued) wildly irresponsible in failing to stay his order in the first place. Ditto for the Tenth Circuit motions panel.

It’s now incumbent on the Utah governor to declare that the purported marriages between same-sex couples that have taken place since Judge Shelby’s ruling are void ab initio.

Substantial Confusion on RFRA’s “Substantial Burden” Requirement?


On the Balkinization blog, Georgetown law professor Marty Lederman is writing a series of very lengthy posts setting forth his grounds for believing that the private employers’ religious-liberty challenges to the HHS mandate should be rejected.

In one post, Lederman spells out that Obamacare does not actually impose a legal duty on large employers to provide their employees access to a qualifying health-insurance plan and that it instead subjects them to an annual tax of (roughly) $2000 per employee if they fail to provide such access. Lederman acknowledges that the imposition of a legal duty is not necessary to trigger religious-liberty protections under the Religious Freedom Restoration Act and that such protections exist when the federal government has placed “substantial pressure” on an exercise of religion. But, from his ivory-tower perch, he argues that “it’s almost certain that Hobby Lobby”—and “most employers”—“would benefit economically” (his italics) by dropping health-insurance coverage and instead paying the tax.

In a follow-up post, Lederman addresses the “obvious question—namely, if I am right, then why aren’t most employers dropping their employee health insurance plans?” Revising his position, Lederman argues that “any pressure on employers to retain their insurance plans … is based on a complex array of factors, most of which are market-driven rather than compelled by law.” In his analysis, if federal law isn’t placing substantial pressure on employers to provide health insurance, any burden that the HHS mandate places on objecting employers who do provide health insurance is very weak. (I’m trying to summarize succinctly the relevant portions of a 5,000+-word post; I invite interested readers to read the whole post.)

Some comments and criticisms:

1. Lederman’s account of the role that federal law plays in pressuring employers to provide health insurance strikes me as one-sided and misleading.

Early on, Lederman says that the “widespread employer practice” of providing health insurance “has been primarily attributable to two things”: (a) “a federal government subsidy to employees” (emphasis omitted), and (b) the fact that “the insurance the employees could obtain on the open market, using their own wages, was not nearly as attractive as employer-provided insurance.” Lederman attributes only the first factor to federal law. He fails to consider that the second factor almost surely flows directly from the first: As health-care expert Jim Capretta (my colleague at the Ethics and Public Policy Center) tells me, the primary reason that the market for individual insurance hasn’t been as attractive is that the subsidy (to the employee) for employer-provided insurance means that the individual market is generally used only by those who don’t have access to an employer plan. In other words, it is a much smaller, remnant market, and thus less stable than the employer market, and the main reason is federal tax policy.

So once this second factor is correctly understood, Lederman’s own account means that it is federal law that is “primarily” responsible for the prevalence of employer-provided insurance. Federal law, in other words, clearly places substantial pressure on Hobby Lobby and other employers to provide health insurance in order to stay competitive in attracting employees, and it thus subjects them to the particular burden that the HHS mandate imposes on those employers who do provide such insurance.

I’ll note that, if I’ve digested all the relevant passages, Lederman doesn’t in fact make the opposite claim—that federal law isn’t primarily responsible for the prevalence of employer-provided insurance. Instead, he states only that

even if it were true … that most employers will retain their employee insurance plans …, that would not necessarily mean that most or all such employers are substantially pressured to do so, let alone that federal law creates such substantial pressure. It might be, instead, that most employers have soft preferences to retain such plans, owing to a vast array of variables and considerations.[Emphases in original.]

Similarly, when he says that “any pressure on employers to retain their insurance plans … is based on a complex array of factors, most of which are market-driven rather than compelled by law,” he is contending only that “most of” the factors are “market-driven”—which is not the same as contending that most of the pressure is “market-driven.” It’s unfortunate that his phrasing might mislead many readers.

2. If I’m right on point 1, then Lederman’s argument in his post collapses. But I also contest the fundamental premise of his argument.

For Lederman, it’s not enough, for purposes of the “substantial burden” inquiry under RFRA, that the HHS mandate applies to objecting large employers who provide health insurance. It’s somehow necessary as well that federal law place substantial pressure on those employers to provide insurance.

But why? If Lederman is right, then why isn’t it also necessary to establish that federal law places substantial pressure on those employers to be in business in the first place? Or to do business in the United States? Or to hire enough employees to pass the “large employer” threshold?

In the landmark case of Sherbert v. Verner, state law didn’t require that Adell Sherbert seek employment at all; it merely conditioned her receipt of unemployment compensation on her willingness to accept a job that required her to work on Saturdays. If Lederman is right, why didn’t the Supreme Court require her to establish that state laws (rather than what Lederman calls “a wide array of very context-dependent and fact-specific factors”) placed substantial pressure on her to work? Are we really to believe that her Free Exercise claim would have failed if, say, she was from a wealthy family and, by some objective standard, was under no pressure to work (but in fact did want to)? If Lederman is right, why didn’t the Court explore whether state laws, rather than market conditions, were primarily responsible for employers’ insistence that she be available to work on Saturdays?

Or consider this hypothetical: A newly enacted federal law requires that any store that sells beef to the public must also sell comparable pork products. The owner of a kosher deli charges that the law violates his rights under RFRA. In determining whether the law imposes a substantial burden on the owner’s exercise of religion, would a court really find it significant that federal law does not require the deli owner to sell beef? If that proposition strikes you as absurd, that would signal that Lederman’s premise (that it matters why an employer is providing health insurance) is also absurd.

What I’m suggesting is the modest proposition that people have religious-liberty rights under RFRA in how they carry out all the activities that they freely choose to engage in, not just in how they do the tasks that the federal government places substantial pressure on them to do. The kosher deli is free to sell beef, and Hobby Lobby is free to provide health insurance to its employees—and in both cases the federal government substantially burdens the entity’s exercise of religion when it compels it to carry out that freely chosen activity in a way that violates its religious beliefs.

In sum, I believe that Lederman’s post invents, and then stumbles over, a hurdle that RFRA does not in fact impose.

This Day in Liberal Judicial Activism—January 4


2010—Eager to broadcast his show trial against Proposition 8 and traditional marriage, Chief Judge Vaughn Walker undertakes his third inept and illegal effort—all within the space of two weeks—to amend the local rule that bars televising of trial proceedings. Days after setting a ridiculously short period for public comment on a “proposed” revision of the local rule, Walker now purports to have amended the rule “effective December 22, 2009,” “pursuant to the ‘immediate need’ provision” of the governing federal statute. Two days later, Walker will authorize broadcast of the trial via YouTube.

But on January 13, the Supreme Court will block Walker’s broadcasting order and rule that his purported revision of the local rule was unlawful. Walker’s desire to broadcast the anti-Prop 8 trial “does not qualify as an immediate need that justifies dispensing with the notice and comment procedures required by federal law,” the Court states. Further, even if the rule had been validly revised, the anti-Prop 8 trial, given the risks of harassment of witnesses, would not be “a good one for a pilot program.” The Court rebukes Walker for ignoring the governing federal statute, for “attempt[ing] to change its rules at the eleventh hour to treat this case differently than other trials,” and for failing to “follow regular procedures.”

The Poor Little Sisters


The Department of Justice filed a legal memorandum Friday morning with the Supreme Court, affirming its opposition to the Little Sisters of the Poor’s complaint that they should not be forced to facilitate free distribution of contraceptives and abortifacients to any of their employees who might desire them. 

Perhaps just stating the issue makes manifest the proper resolution of the lawsuit. In a morally sane world, it would.

We live however in a different world, one in which the nation’s leading newspaper could — and did, Friday – describe the Sisters’ lawsuit as “audacious” and, even, occupying a “level of absurdity.” The New York Times editorial board saw no burden at all upon the Sisters’ religious liberty in the HHS mandate. The Times’ vision was a bit blurred, though: It mistakenly described the Sisters as “exempt” from the mandate. They surely are not, as the Editors implicitly recognized in the next paragraph, where they accurately described the Sisters as eligible for a limited “accommodation,” one which the vast majority of federal courts hearing lawsuits of this sort have found to be a “substantial burden” indeed upon religious liberty.

The most telling part of the editorial was its concluding paragraph, which reads (in full, with one interpolation by me): “like the cases of the private employers [such as Hobby Lobby], the suit by the nuns’ group boils down to an unjustified attempt by an employer to impose its religious views on workers.”

One could probably develop an entire course on what is wrong with this country’s liberal elite’s understanding, and valuation, of religious liberty out of that one sentence. Among its many, many mistakes are these three: First, even though the folks who run Hobby Lobby and other complaining for-profit companies are admirable people who also deserve relief from the HHS mandate, it is a dull mind indeed which can see no relevant difference between the Little Sisters of the Poor and a huge commercial chain store; two, employees are not made to accept, or to have “imposed” upon them, any religious view by dint of being expected to pay for their own abortifacient or contraceptive drugs; third, there is no basis for the Times’ imposition of “impose” upon the Little Sisters.

The Sisters’ tiny outfit does not belong to them. They do not make others endure or suffer for their — the Sisters, as “employer” — views by keeping alive the mission and purpose of the organization itself, as the Catholic charity that it is. That character (or charism, one might say) is the common property of everyone associated with it, from the Little Sister who is in authority to the Little Sister who scrubs the floors — and to everyone in between.  The identity and meaning of the entire outfit is shared by all who choose to join it; it is wholly a collaboration among all who toil therein for the purpose of serving those most in need.

Leave it to the New York Times to transpose this reality of cooperative and humble service into an exercise of raw power.


Utah’s Motion to Stay Ruling Against Marriage Laws


Now that I’m back from Christmas break, here’s some follow-up on my previous posts about federal district judge Robert J. Shelby’s astounding refusal to stay pending appeal his decision invalidating Utah’s marriage laws:

1. Here’s where things stand procedurally: On Christmas Eve, a two-judge motions panel of the Tenth Circuit denied Utah’s emergency motion for a stay. On New Year’s Eve, Utah filed an application for a stay with Justice Sonia Sotomayor (the justice for the Tenth Circuit). Per Lyle Denniston at SCOTUSblog, Justice Sotomayor has invited plaintiffs to file a response by noon today.

I’m guessing that Justice Sotomayor will refer the motion to the entire Court for decision, but it’s also possible that she will decide it on her own.  (If she were to deny it, Utah could refile with another justice, who could refer it to the entire Court). I continue to believe that the case for a stay is compelling.

2. Judge Shelby’s order denying Utah’s motion to stay (which is available as Appendix C to Utah’s pending application) strikes me as remarkable in several respects:

First, Shelby explains that his initial order “did not include a stay of its judgment as none had been requested by the State.” It may well be proper to fault Utah’s lawyers for this oversight, but it seems to me that principles of federalism ought to command that a federal judge be much more respectful of a state’s interest in its laws—especially something as fundamental as its marriage laws—than Shelby was. Shelby could, for example, have given the parties advance notice of how he would be ruling and have invited Utah to file a stay request. Or he could have temporarily stayed his own decision in order to give Utah time.

Second, Shelby slights Utah’s strong showing of irreparable harm and exaggerates the countervailing harm that a stay would impose on plaintiffs. Importing his merits discussion, Shelby asserts that Utah’s interest in preserving its marriage laws is not “sufficient to withstand rational basis scrutiny,” and he evidently weights that interest at zero. Conversely, he fails to recognize that the interest of plaintiffs in entering into a supposed marriage is weak insofar as that supposed marriage may ultimately be deemed to have been void ab initio.

Third, and seemingly most brazen, is Shelby’s basis for refusing to grant a temporary stay to enable the Tenth Circuit to decide Utah’s stay motion. According to Shelby, the purpose of a temporary stay is “to preserve the status quo” at the moment. Because of his refusal to stay his order, “the status quo is currently that same-sex couples are allowed to marry in the State of Utah.” So he concludes that a stay wouldn’t preserve that status quo. But Shelby doesn’t cite any authority for his understanding of the status quo that is to be preserved, and I would have thought it clear (though I invite correction if I’m mistaken) that it’s the status quo that existed before the court issued its judgment. (Given that the Tenth Circuit motions panel denied Utah’s stay motion, this might seem like harmless error, but it also seems indicative of Shelby’s bias.)


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