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48 posts from April 2015


Obergefell, Craig, Nguyen, and Somin (Updated)
Chris Green

Just below, Andrew makes an interesting argument about the relationship of the Obergefell sex-discrimination argument to Giles Hotchkiss's comments at the very end of the February 1866 Bingham Amendment discussion. Hotchkiss hoped that Bingham's proposal would be replaced with a provision "to provide that no State shall discriminate between its citizens and give one class of citizens greater rights than it confers upon another," or a provision that "no State shall discriminate against any class of its citizens," or a ban on "discrimination to the injury or exclusion of any class of citizens from the privileges which other classes enjoy." I think Hotchkiss's hope, expressed in terms of privileges and citizenship, was clearly fulfilled in the Privileges or Immunities Clause, not the Equal Protection Clause. Andrew's basic point about the way class legislation was understood in 1866 is still relevant, however, mutatis mutandis.

For my part, I wanted to make a few points about the relationship of the sex-discrimination argument to current doctrine. 

Chief Justice Roberts received (see here at 61-64) two replies from Michigan's lawyer John Bursch to the sex-discrimination argument for same-sex marriage long made by academics like Akhil Amar and Andy Koppelman. 

First, unlike cases applying intermediate scrutiny since Craig v. Boren in 1976, the gender distinction in traditional marriage definitions is symmetric.

Second, in 2001's Nguyen v. INS, Justice Kennedy held for the Court that the preference for children of married American parents or unmarried American mothers over children of unmarried American fathers--particularly the requirement that the unmarried American fathers commit to child support--satisfied intermediate scrutiny because encouraging paternal bonding and support was deemed "important," even "exceedingly persuasive."

Ilya Somin, who made the argument as an amicus alongside Koppelman and others, provides some follow-up here. Some follow-up of my own after the jump.

Continue reading "Obergefell, Craig, Nguyen, and Somin (Updated)
Chris Green" »

John Marshall Harlan (I) and Giles Hotchkiss on Same Sex Marriage Issues
Andrew Hyman

The Obergefell case that was argued Tuesday involves discrimination based upon gender, but not discrimination against either gender.  Whether that distinction will have any effect in the case, I have no idea, but it should probably impact the standard of review.
The first Justice Harlan once famously wrote in Plessy v. Ferguson: "Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons".  In contrast, no one in the Obergefell case can seriously think that these marriage laws were targeted at either men or at women as a class.  Had they been, then intermediate scrutiny would be warranted according to the Court's precedents.
Does any of that matter in terms of the original meaning of the Equal Protection Clause?  Yes, there is evidence that it does.  For example, Congressman Giles Hotchkiss of New York stated on February 28, 1866: "Why not provide by an Amendment to the Constitution that no state shall discriminate against any class of its citizens...." (emphasis added).  The Equal Protection Clause was drafted soon thereafter.
As to the text of the Equal Protection Clause, it seems like a huge stretch to think that a person is entitled to "protection" if he or she is not being discriminated against.  If that were really the goal of people in the 1860s, then we likely would now have the Equal Treatment Clause.  Unlike my esteemed co-blogger Chris Green, I am convinced that the word "protection" in the EPC is very broad, but it is not limitless.
In Loving v. Virginia there definitely was discrimination against at least the following class: mixed-race offspring.  The laws at issue in Loving were motivated largely by animus toward mixed-race children.  That case also involved animus against black people, who were deemed harmful to white racial purity.  None of that is comparable to the gender discrimination in Obergefell, claims to the contrary notwithstanding, and so the review ought to proceed under the rational basis standard.  (I would also accord a large role to Congress, but that is another story.)  
In a nutshell: Obergefell involves gender discrimination, but not discrimination against either gender.  The former is insufficient to invoke the Equal Protection Clause, or intermediate scrutiny thereunder.

Josh Blackman: Collective Liberty
Michael Ramsey

Josh Blackman  (South Texas College of Law) has posted Collective Liberty on SSRN.  Here is the abstract: 

The story of our Constitution is a tale of two liberties: individual freedom and collective freedom. The inherent tension between these the two is well known. Judicial protection of individual liberty inhibits the collective from freely arranging society through the democratic process. In contrast, judicial protection of this collective freedom to structure society may infringe on individual liberty, especially for those out of the mainstream. Like a pendulum, over the last century, the rights of free speech and exercise have swung between the individual and the collective, between right and left. This article traces these arcs from individual liberty to collective liberty, and back. 

Historically, progressives tended to favor broad conceptions of individual rights, with respect to protecting unpopular speech and minority religious groups. Conservatives, in contrast, often disfavored such rights to the extent they impeded the preservation of traditional social norms and structuring society. In recent years there has been a reversal, as the right has asserted the mantle of individual liberty against claims of governmental intrusion into time-honored institutions. But for the left, a robust freedom of speech and religion — no longer serving progressive causes of social justice and equality — can now more easily be subordinated to what Justice Breyer referred to as "collective" liberty.

By looking at two controversial cases in this arena — McCutcheon v. FEC and Burwell v. Hobby Lobby — this article chronicles the juxtaposition of positions on the right and left between collective, and individual views of rights, and explains what this means for the development of the First Amendment on the Roberts Court, as freedom from government clashes with freedom by government.


Obergefell and Esteem Dilution
Chris Green

As in the 2013 Hollingsworth v. Perry argument (here at 17: "What harm you see happening and when and how and--what--what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?"), Justice Kagan asked yesterday (here at 44) why the expansion of the "marriage" label would undermine its effectiveness in its traditional applications:

It's the principal argument that you make in in your briefs, that same-sex marriage doesn't advance this State interest in regulating procreation. Let's just assume for the moment that that's so. Obviously, same-sex partners cannot procreate themselves. But is there in addition to that, are you saying that recognizing same-sex marriage will impinge upon that State interest, will harm that State interest in regulating procreation through marriage?

The idea was echoed by Justices Ginsburg (p. 44: "[Y]ou're not taking away anything from heterosexual couples."), Sotomayor (p. 46: "How does withholding marriage from one group, same--same-sex couples, increase the value to the other group?") and Kennedy (p. 49: "Same-sex couples say, of course, we understand the nobility and the sacredness of the marriage. We know we can't procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled. ... [Y]ou're saying that this harms conventional marriage."). Kagan herself returned to the theme later, obviously dissatisfied with the response (p. 66: "[I]t's hard to see how permitting same-sex marriage discourages people from being bonded with their biological children."), as did Justice Breyer (p. 66-67: "What directly is your response to the fact that if we assume a basic purpose of marriage is to encourage an emotional and rearing bond between parents and children, that allowing gay people to marry will weaken it? ... [W]hat's the empirical connection?").

An analogy to trademark dilution, which I made in 2013 and David Crump made at much greater length in 2011, might, I think, explain the possible dynamics of "marriage" as a vehicle of social esteem a bit more crisply than did Michigan's lawyer, John Bursch. The Court explained in 1942's Mishawaka Rubber & Woolen Manufacturing:

The protection of trademarks is the law's recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them. A trademark is a merchandising shortcut which induces a purchaser to select what he wants, or what he has been led to believe he wants. The owner of a mark exploits this human propensity by making every effort to impregnate the atmosphere of the market with the drawing power of a congenial symbol. Whatever the means employed, the aim is the same--to convey through the mark, in the minds of potential customers, the desirability of the commodity upon which it appears. Once this is attained, the trademark owner has something of value. If another poaches upon the commercial magnetism of the symbol he has created, the owner can obtain legal redress.

The suggestion here is not that the term "marriage" is not about social esteem at all--which Bursch at times seemed to say (e.g., pp. 71, 73)--but rather that the social esteem conveyed by a particular symbol can, at times, be a rivalrous good, subject to dilution when the symbol is more widely used. As Frank Schechter put it in 1926, trademark protects against the "gradual whittling away or dispersion of the identity and hold upon the public mind of the mark or name."

Dilution does not, of course, always take place. Brands may improve in value if new applications turn out to be better than old ones; if Pepsi is actually better than Coke, Coke won't be harmed, but benefitted, if Pepsi uses the "Coke" label. That benefit itself, however, depends on a link between the esteem conveyed by old and new applications of a symbol. If the Court regards the social science on the relative value of traditional and new applications of "marriage" as unsettled on Burkean millennia-versus-the-last-decade-Heller-v-Doe grounds--or at least as too unsettled and unclear for judicial review, see here and here--it should likewise be agnostic on the issue of harm to traditional applications.

Justice Alito Reviews the Paulsens' "The Constitution: An Introduction"
Andrew Hyman

Here (from the Federalist Society's Engage magazine) is Justice Alito's book review of The Constitution: An Introduction by Michael Stokes Paulsen and Luke Paulsen.  From the conclusion:

The Paulsens’ book fairly presents both sides on major interpretive issues, but they do not hide their own point of view.  They favor a form of originalism and judicial restraint.  They are decidedly Hamiltonian in their view of national and presidential power, but at the same time they support a robust conception of the individual rights set out in the Bill of Rights and post-Civil War Amendments.  Substantive due process, which they trace back to Dred Scott, however, is another matter.

An appreciable percentage of those who read this impressive book are likely to disagree with the authors on at least some major points, and that is one of the book’s virtues.  It invites readers to become personally engaged in the discussion of the Constitution that began in the fall of 1787 when the citizens of the states debated ratification, and this process continues today.  The Paulsens’ book does not tell Americans what to think, but it provides invaluable help as they think for themselves.

(Via Scott Johnson at Powerline)

Equal Protection versus Due Process in Obergefell v. Hodges
Michael Ramsey

This is my favorite part of the oral argument in the same-sex marriage cases (from Lyle Denniston's analysis at SCOTUSblog):

The federal government’s view is that the Court should rule in favor of same-sex marriage, based upon the Fourteenth Amendment’s guarantee of legal equality.   He [Solicitor General Verrilli] had no answer when Justice Kennedy asked him for the government’s views on whether gays should have a right to enter marriage, under the Fourteenth Amendment’s Due Process Clause, because marriage is a fundamental right.   The government was not prepared to opine on that issue, Verrilli told Kennedy. 

I like the subtle message sent here.

Among other reasons, there's a practical (though originalist-based) argument for preferring the equal protection clause over the due process clause.  A problem with finding a fundamental right to marriage unmoored from the traditional understanding of marriage is that there is no obvious stopping point.  If same-sex couples have a fundamental right to marriage, why not polygamists? Or indeed people who want to marry their brother, or their dog, or their piano?  At some point the Court would have to say what is "really" a marriage and (critically) what is not.  There is simply no way to do this on the basis of anything other than the judge's moral intuition.  Like other arguments from moral intuition purporting to rest on the due process clause, the whole enterprise is corrosive of the rule of law.  No one will think of it as anything but the Court making it up.   (This concern has been raised by commentators generally sympathetic to same-sex marriage, for example here by Elizabeth Price Foley and here by Josh Blackman.) 

But this concern has force only if one thinks of the case as being about marriage (the due process perspective) instead of being about discrimination (the equal protection perspective).  Equal protection offers a more defensible grounding, and a more defensible stopping point.  As I've argued, the key is describing sexual orientation discrimination as a form of caste legislation.  (In modern doctrinal terms, to think of laws discriminating against people of same-sex sexual orientation as targeting a "suspect class" and thus requiring a "compelling" justification.)  It seems fairly straightforward to say that sexual orientation -- but not a preference for polygamy, or for other nontraditional versions of "marriage" -- constitutes such a suspect class.  Put another way, sexual orientation discrimination can be analogized to race discrimination (clearly proscribed by the Fourteenth Amendment) in a way that laws against other kinds of non-traditional marriage cannot.  And that provides a stopping point that can be explained on legal grounds connected to the Amendment's original meaning.  


Originalism and Same-Sex Marriage Revisited
Michael Ramsey

With arguments today on the same-sex marriage cases, here are a few more thoughts from an originalist perspective.

I was interested to read the outstanding amicus brief by originalist scholars (including three of my colleagues) on behalf of the states (discussed here and here).  Despite my role of trying to develop an originalist argument for constitutional protection of same-sex marriage, I was surprised to see how much of the brief I agreed with.  As I read it, the brief accepts (a) that the original meaning of the equal protection clause reflects a rule against caste legislation; and (b) that legislation discriminating against persons of same-sex sexual orientation would be caste legislation today, even if people in the 1860s would not have looked at it that way.  The only point of disagreement, it seems, is whether laws limiting marriage to opposite-sex couples amount to discrimination against persons of same-sex sexual orientation (I say they do, and the brief disagrees).

On a related point, at Liberty Law Blog John McGinnis argues that the European perspective on same-sex marriage should be irrelevant to an originalist interpretation of the equal protection clause.  I'm not entirely sure that's right.

Briefly, the European Court of Human Rights has held that European human rights law does not require nations to recognize same-sex marriage, even though it has also held that various national laws discriminating against same-sex sexual orientation are prohibited.  Put another way, European human rights law is generally aligned with the argument in the originalist scholars' brief: discrimination on the basis of same-sex sexual orientation is prohibited, but laws recognizing only opposite-sex marriage are not prohibited discrimination.

Does this alignment support the originalist scholars' brief?  I think it does.  My argument is that laws against same-sex marriage -- given our modern understanding of sexual orientation -- are necessarily discriminatory (Jack Balkin makes a similar argument here). But the European court concludes that they are not discriminatory -- that is, that there may be good reasons to allow local jurisdictions to refuse to recognize same-sex marriage, even in a legal regime that generally bans sexual orientation discrimination.

Ordinarily this would not seem relevant to an originalist interpretation of the U.S. Constitution, but this isn't an ordinary circumstance.  The argument for constitutionalizing same-sex marriage depends on a claim about how our understanding of sexual orientation has changed and what the necessary implications of that change are; it insists that laws recognizing only opposite-sex marriage are inherently discriminatory.    But the European view shows that is not necessarily so -- a legal regime could plausibly reject sexual orientation discrimination, based on a modern understanding of sexual orientation, and yet still not require recognition of same-sex marriage.  While I don't find that conclusive, I have to admit that it seems relevant.


New Origination Clause Decision
Andrew Hyman

This is an interesting decision about the Origination Clause and standing, especially the last paragraph on page 25:

We recognize that the underlying merits of this appeal present issues of exceptional importance. Although the Origination Clause is rarely litigated, the principle it embodies—that “power over the purse” should be held by the most “immediate representatives of the people,” see The Federalist No. 58, at 350 (James Madison) (Isaac Kramnick ed., 1987)—was critical to the Framers and ratifiers of the Constitution. Furthermore, the statute before us is, of course, a statute of great and wide-ranging importance: it represents a “comprehensive scheme to reform the national markets in health care delivery and health insurance,” Thomas More Law Ctr., 651 F.3d at 534, one that “encompass[es] nine Titles and hundreds of laws on a diverse array of subjects.” Florida, 648 F.3d at 1241.

But the court concludes:

Nonetheless, it is axiomatic that, no matter how important the issue, see, e.g., Raines, 811 U.S. at 819–20, “[f]ederal courts are courts of limited jurisdiction” and “possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Here, as we have explained, constitutional and statutory limits combine to prevent our exercising jurisdiction over these plaintiffs’ challenges. The Constitution’s standing requirement bars Dr. Hotze’s challenge to the individual mandate, primarily because the plaintiffs’ complaint provides no reason to conclude that Dr. Hotze’s circumstances do not fully comply with that mandate; consequently, he has not shown an injury to himself resulting from the ACA’s enactment. And a statute with a well-established history—the AIA—bars Braidwood’s challenge to the employer mandate, because the exaction imposed by the employer mandate constitutes a “tax” under the AIA, which may not be challenged through pre-enforcement suit. 26 U.S.C. § 7421(a).

Justice Scalia’s Worst Opinions
Mike Rappaport

Recently, there has been some discussion, by admirers of Justice Scalia, of what is the Justice’s worst opinion.  Mike Paulsen argues it is Employment Division v. Smith, where Scalia for the Court interpreted the Free Exercise Clause to provide less protection for those who seek religious exemptions from general laws.  Mike Ramsey mentions both Whitman v. American Trucking (expansive view of Congress power to delegate to the executive) and Gonzales v. Raich (expansive view of Congress necessary and proper power) as possibilities.

Scalia’s views on the nondelegation doctrine are potentially important.  While the justices on the right have supported limits on Congress’s commerce power, there has been no similar efforts as to Congress’s power to delegate.  There are several reasons for that but one important reason is that Scalia would not have gone along.

In my view, though, Scalia’s worst opinions are his series of opinions defending the Chevron doctrine.  There is a reasonable argument that if Scalia had not been on the Court, the High Court would never have adopted the broad Chevron doctrine.  The Chevron decision itself, written by Justice Stevens, was probably never meant to have adopted the broad rule of deference that it has become.  Instead of adopting a categorical rule that required deference to agencies for both pure questions of law and mixed questions of law and fact, it was probably intended merely to hold that the particular statute at issue in that case – the Clean Air Act – allowed the executive deference as to the particular type of decision in that case.

Despite Justice Stevens’s apparent intent, the broader, categorical view of Chevron was adopted in the D.C. Circuit when Scalia was on that court.  When Scalia was elevated, he brought that view to the Supreme Court.  In the 1987 case of INS v. Cardoza-Fonseca, Justice Stevens – the author of Chevron – wrote that deference did not extend, in the context of the Immigration and Nationality Act, to pure questions of law (one take on the traditional view).  Evidently, Justice Stevens did not understand Chevron to have the broad meaning.  Scalia wrote a concurrence, for himself only, arguing for the broad interpretation and claiming that Chevron applied to pure and mixed questions.

At this point, it was Justice Scalia alone who adopted the broad view of Chevron.  But later that same term in NLRB v. United Food & Commercial Workers Union, Scalia was able to persuade three other justices (Rehnquist, White and O’Connor) of the broad interpretation.  And since then, the broad interpretation of Chevron has been followed at the Supreme Court.

As I have argued previously, Chevron could not be justified based on the original meaning of the Administrative Procedure Act.  Nor could it be justified based on precedent at the time of its decision.  It was largely a combination of the political preferences of the D.C. Circuit judges at the time – in favor of agencies (instead of judges) and in favor of clear rules.  Scalia’s textualism should have caused him to eschew the decision.

(Cross posted at the Liberty Law Blog)

J. Richard Broughton: The Snowden Affair and the Limits of American Treason
Michael Ramsey

J. Richard Broughton (University of Detroit Mercy School of Law) has posted The Snowden Affair and the Limits of American Treason (Lincoln Memorial University Law Review, 2015, Forthcoming) on SSRN. Here is the abstract: 

The revelations about Edward Snowden’s leak of American national security information helped to reinvigorate public rhetoric about the crime of treason, which Article III of the Constitution defines only as levying war against the United States or adhering to the enemy by giving aid and comfort. Political leaders and others regularly commented on whether Snowden was a “hero” or “traitor.” And more than one American political leader suggested that Snowden should be tried for treason. But these rhetorical episodes simply demonstrate that despite treason’s stature, numerous gaps remain in the public’s (and even in political leaders’) understanding of the rarely-invoked, rarely-discussed Treason Clause. This paper, written for a symposium on the ramifications of Snowden’s disclosures, therefore focuses on the constitutional provision that requires “adhering” to the enemy, giving them “aid and comfort” – what the paper calls Adherence Treason, which is the provision most likely at issue in a treason case involving actions like Snowden’s – and examines the relevance of the actor’s mental state to the interpretation and application of the Treason Clause. Drawing on the Supreme Court’s World War II treason cases, the paper examines treason in light of complicity doctrine in the criminal law. It demonstrates how information that reaches the enemy does not constitute treason – even if the information actually aids the enemy, as Snowden’s disclosures could have done – in the absence of a specific intent to betray America, which is the mens rea required for treason and which Snowden appears to have lacked. Still, when viewed in light of complicity law, even the narrow standard for American treason could be implicated by contemporary aid-to-the-enemy cases that are distinguishable from Snowden’s, such as the terrorist-aid cases that are now prevalent but are being prosecuted under the material support statutes instead. These terrorist-aid cases, especially when combined with the modern technology that can make it easier for one to communicate with and assist the enemy, could potentially keep the Treason Clause alive, but only in narrow circumstances where legally sufficient aid and the intent to betray coalesce.