I'm not interested in adjudicating that particular dispute, but I'm interested in (1) its very existence and (2) the particular reasoning used in each case. There's a correct moral principle behind each justice's point (just retribution for a heinous act and ensuring we don't ourselves do evil in how we treat those who do evil). It seems as if this might be a case where we can't satisfy either concern without going against the other concern, so we have to decide which principle we'll give more importance to. These two justices end up on opposite sides on that question.In a five-page concurrence, Justice Kennedy went out of his way to raise concern over the proliferation of solitary confinement in U.S. prisons, bemoaning the extent to which "the conditions in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest," even though "consideration of these issues is needed." Thus, he concluded, "[i]n a case that presented the issue, the judiciary may be required . . . to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them." Justice Thomas responded in a rather curt, one-paragraph opinion, noting that "the accommodations in which Ayala is housed are a far sight more spacious than those in which his victims . . . now rest," and that "Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth."
Recently in Law Category
Here's an interesting analysis by D.A. Carson of three recent cases of what he calls the intolerence of tolerance that happened after his book on the subject came out: the Chick fil-A ban issue, a case of a liberal seminary trying to discipline a very respected faculty member for including a theologically-traditional book on homosexuality in the curriculum, and the HHS contraception mandate.
I'm not sure I have anything interesting to say about the first two cases he discusses that hasn't already been said ad nauseam. But he says something very interesting about the third case he discusses, the HHS mandate.
If Carson is right in his analysis of the HSS mandate, the government is willing to allow a lot of exceptions to the HHS mandate that have nothing to do with religious opposition to contraception or drugs with unintended abortifacient effects. But they won't allow a religious exception to this mandate on either of those two grounds. And they're arguing not that there should be no freedom of religion as an exception to government mandates nor that the drugs in question do not have an abortifacient effect (as some do argue). Instead, they argue that we should take taking 'religion' narrowly to include things like public gatherings for worship but not to include things like views on ethics.
What strikes me as extremely interesting about that is that would raise some serious questions about a lot of fairly common practices of excluding religion or seeking to exclude religion from the public sphere. If religion has to do with corporate gatherings of worship but not individual beliefs, then a lone science teacher who wants to include some discussion of philosophical arguments about design in a science classroom is not engaging in religion. I would have thought that patently obvious, but courts seem not to agree. The interesting question here is whether the Obama Administration's view of religion with respect to the HHS mandate can be made consistent with that practice of excluding long-standing philosophical discussions from science classrooms on the ground that such philosophical discussions are religion. They are not, on any sane analysis. They are philosophy. But that should be so much clearer if other philosophical views such as ethical views are not religion. Metaphysics surely is not either. If it is, I'd like to see the argument why one and not the other should count as religion or why we should have different standards for what counts as religion in the two cases.
Another place religion is often excluded is in the contention among many on the left that it's immoral for voters to decide who they should vote for or which policies to prefer if their reasons are based on their religious views (or politicians to decide which policies to support based on their own or their constituents' views). The same inconsistency would apply if the government's position on HHS is correct. If someone opposes abortion for purely religious reasons (which I think is true of some but certainly not all and probably not most pro-lifers), then it's not religion according to this approach, and those who resist anyone's attempt to vote pro-life on such grounds as thoroughly immoral cannot do so consistently with claiming that Wheaton College's resistance to the HHS mandate is not religion. This isn't even two different branches of philosophy, as the above example of metaphysics and ethics is. Here we have two examples of not just ethical views but of the very same ethical view, so there's no arguing that one case is religion and the other not. We'd have to argue that different standards for what counts as religion should apply in the two different cases, and I have no idea how that argument would go.
So assuming Carson is right on how the government is pursuing these cases (and I admit to not looking into them as carefully as he has), those who want to do either of the things I've pointed to have a real problem on their hands if they also want to defend the enforcement of the HHS mandate in these cases in the way the government seems to be doing it. I'm not sure how a consistent approach to all these questions can end up agreeing with the Obama Administration on this case that these ethical beliefs are not religion while still opposing the two things I've identified as religion.
California has outlawed so-called ex-gay conversion therapy. Social conservatives who might want to express outrage at this law need to make sure they're going to be consistent with their own views on other matters. Also, surprising as it may be to some, there are reasons for those with more liberal views on these matters to worry about a law like this.
I'll start with the second point. Those who recognize homosexuality as a social construction should at least be open to a worry about this law. Most experts nowadays consider our notion of being gay as socially constructed. There have been different ways of conceiving of people with same-sex desires over history. In ancient Greece, for example, it was relatively accepted for older men to favor a sexual relationship with boys over that of their wives, not because they had some notion of people who have an orientation toward people of the same sex but because they didn't think they could have as deep an intellectual relationship with women, and they thought relationships that we would now count as pedophilia were a deeper form of love because they could involve intellectual conversations.
We now have a notion that there's a phenomenon called homosexuality, where a small minority among the population has sexual desires for people of their own sex rather than for people of the opposite sex. But most people recognize now, whether they approve of such desires or not, that it's more complicated than that. There are people who have both kinds of desires, relatively in equal proportion. There are people who have more one than the other. There are people who have one predominant at one time in their life but move to a point at another time where it's the other way around. There are people who move toward same-sex sexual interaction primarily for political purposes rather than because of some already-existing inner state of being primarily attracted along same-sex lines. But our social narrative primarily divides human beings into the binary of gay and straight, with some allowance for bisexual when we're feeling a desire for more precision. The variety isn't remotely captured by that, never mind the phenomenon of trans-sexuality, and the idea that being in one of the two categories of the binary is simply a matter of how someone was born isn't exactly borne out by science, even if there is some evidence that the underlying state of how one's desires are directly can be partially influenced by genetic factors.
Many on the left on these issues push for alternative conceptions of homosexuality, including allowing those who see their same-sex attraction in a way that resists being considered gay in the usual sense, and if same-sex attraction is much more complex than just being straight or gay, as many who might be inclined to favor a law like this might think, then shouldn't we be interested in allowing therapists to encourage moving away from the homo/hetero binary? But it seems to me that this law might ban therapists from doing that, because it would be helping move someone with same-sex attraction away from thinking of themselves as gay. Many on the left on these issues should see that as highly problematic.
It's less surprising to many to see social conservatives resisting a law like this, but such resistance isn't as easy to formulate as it sounds, because the grounds for it might conflict with other conservative views. For example, if we don't have a right to health insurance covering exactly the things we think are medically necessary, then we don't have a right to health insurance covering a particular therapy that we happen to want covered. If we don't have a right to doctors performing a particular procedure that we happen to want performed, then we don't have a right to this therapy if we want it.
That being said, conservatives can consistently hold that the government shouldn't interfere with what private counselors can do, even if what they want to do is disapproved of by the main professional organization. But most people do think medical services can be licensed, and certain things done by doctors can make them lose their license. So this is, at least in principle, something that is within the government's traditional range of control. But I'd have to see the law, because if the guy NPR had on opposing it is correct then it sounds like they outlawed a good deal more than what careful study has shown to be both ineffective and psychologically harmful (i.e. the conversion therapy itself) and will not even allow a therapist to help someone who has unwanted same-sex desires to live a life that avoids what they see as sinful and unwanted (which is not remotely the same as converting them away from a sexual orientation). I'm not sure there's any scientific ground for taking it to be harmful to choose a celibate life over fulfilling one's sexual desires, and therefore the normal licensing standards shouldn't require it to be banned.
There may also be a religious issue. They did apparently include a religious exemption. But not exactly. They included an exemption for counselors who are practicing religious officials of some sort but who are not licensed counselors. A pastor, priest, or other religious leader who happens to counsel is exempt. But a nun working as a licensed counselor in a more medically-oriented psychological practice is not exempt. And a licensed counselor operating a business not being run as a religious non-profit is not exempt. Is this a violation of free exercise? I suspect it is, at least in terms of the aspects that are banned that aren't demonstrated as harmful (such as helping someone to find a counselor who can help them live a celibate life or referring them to a therapist who will encourage them to think outside the gay/straight binary or allow them to think of themselves in a way that is more about having same-sex desires than about belonging to some supposedly-scientific category of being gay, which really involves more politically than many think, and someone who opposes those politics but does have same-sex desires may well not be gay in every sense). Again, this is assuming the opponent of the law on NPR represented it accurately, but the state senator who supported the bill on that show didn't offer any correction on the matter.
There's also the issue of viewpoint-neutral endorsement. This is another place where conservatives will have a harder time making their case. They tend to think there's no problem with the government or government employees endorsing statements of religious content, because the establishment clause only prohibits the setting up of an official government-run religion, and many conservatives don't even think this applies to states. After all, several states had official religions when they entered the union. So it's going to be hard to press this argument if you hold that sort of view on the establishment clause. You might, however, make an argument involving inconsistency among those who do think it's unconstitutional for the state to endorse religious content (or rule out religious content). And you might easily make the argument on policy grounds, rather than as a constitutional problem that courts can then deal with.
On the consistency issue, I think there's some case to be made, but it's because there's already serious inconsistency. If we take seriously the prohibition of even mentioning classic philosophical arguments like design arguments in a science classroom, on the ground that it's somehow endorsement of religion, then we already are banning lots of stuff that isn't remotely religion. Because the design argument need depend in no way on any controversial religious premise, it's not as if someone who endorses such an argument has to be following any religion at all. It could be a purely secular theist who endorses a design argument. And merely teaching the argument, rather than endorsing it, is certainly not endorsement of religion. So those who claim that that's importing religion into the science classroom have such a broad view of what counts as religion that it might well be very hard to see this law as not endorsing a claim that speaks to a religious issue. It's on such grounds that a federal court has ruled that it's unconstitutional to present the arguments against intelligent design in a state-run science classroom, because it took that to violate the establishment clause.
But a much more reasonable position would be that intelligent design is not necessarily religion, even if it's also not strictly speaking science (although I would argue, and have argued, that it's not any less science than the metaphysics that commonly gets done by physicists working on cosmology, quantum-theory, and space-time). Someone who holds this more reasonable position might nonetheless not hold the conservative view on the establishment clause and therefore think that President Obama shouldn't be invoking God the way he does or that it's unconstitutional to endorse actual religious content in a public school science classroom, such as endorsing six-day creationism because the Bible teaches it. On that sort of view, it's still easy to present an unconstitutionality argument for this law. After all, the legal issues are the same as the above cases, but without the ridiculous claim that philosophical arguments are somehow automatically religious just because a lot of religious people accept them (which would make most of our beliefs religious). Then all you need to do is recognize that the value of at least some of the therapy falling under this broad ban is both (1) not as clearly harmful as some of the therapy it bans and (2) something religious people can endorse because of their religion. In that case, the government is not remaining viewpoint-neutral on a religious matter without the strong argument that the therapy is harmful.
And even someone who does hold the conservative view on the establishment clause (or who isn't willing to argue a case base on existing but wrongly-decided precedent) can give a policy argument against this at the legislative level. It's not unconstitutional, on this view, but it's compatible with that to think that as a policy matter the government should remain viewpoint-neutral on controversial matters of religious disagreement that aren't demonstrably harmful the way medical professionals do take ex-gay therapy proper to be demonstrably harmful. The result is that this is just poor policy and should be opposed as bad law. And that's something that someone pretty far on the left on same-sex issues should be all right with. The government shouldn't tell us what to think about such matters, and it shouldn't stop us from getting counseling that fits with what sort of life we want for ourselves, and if a minor happens to want this sort of therapy it shouldn't be illegal for a counselor who is willing to do it or to refer someone to someone who will out of respect for the client's wishes as long as it isn't one of those demonstrably-harmful methods that the ban doesn't limit itself to.
So I think a lot of the conservative arguments against this ban need to be very carefully done to succeed, but I think there are arguments, and some of them might appeal to those more toward the left. But those are more against the law as it stands, rather than against a different ban that could have been enacted. I do think there are real tensions on the left in how these issues are thought of, and I'm not sure it's as easy to justify this broad a ban as I assume many on the left would think.
The Los Angeles Times has an editorial up about the upcoming Supreme Court case that will revisit affirmative action. It argues several things, but one claim it makes strikes me as wrong. It points out that the Supreme Court has affirmed affirmative action as constitutional in a limited way, by saying:
1. Outright quotas, which reserve special spots for one group and only that group, violate the equal protection clause of the 14th Amendment.
2. Less absolute ways of giving preference to under-represented groups pass constitutional muster, provided they have the right justification and are narrowly-tailored to meet that justification.
3. The right justification is the compelling state interest of increasing diversity, not reparations for past maltreatment, overcoming the persistent lingering effects of past maltreatment, or counterbalancing for any current discrimination.
This is right as far as it goes, but I think the editorial's way of framing what Justice O'Connor's framework allows and doesn't allow as justifications is not quite right, because it doesn't take into account one of the most important recent diversity arguments, which brings together diversity with some of the other considerations. Here is how the editorial separates the justifications:
One of the most persuasive arguments for some racial preferences is that the underrepresentation of African Americans in the ranks of the highest-achieving college applicants is inseparable from this country's legacy of racial discrimination. Far from offending the 14th Amendment's guarantee of equal protection of the laws, such policies are consistent with that amendment's paramount objective of overcoming the effects of slavery.
The problem is that, beginning with the court's 1978 decision in the Bakke case from California, affirmative action has been based on a different rationale: that including students from different backgrounds enhances everyone's educational experience. That "diversity" justification, which looms large in the administration's brief, is valid as far as it goes. But it gives insufficient weight to the persistent racial disparities in income and education that continue to put minority applicants at a disadvantage.
The most significant development in the affirmative action discussion since the 2003 Supreme Court decisions is Elizabeth Anderson's work on integration, most supremely in her 2010 book The Imperative of Integration, which I consider a game-changer both in the moral debate about affirmative action and in how the legal issue of the diversity justification can fit together with the argument of the first paragraph I quoted above.
Anderson argues for a diversity justification that doesn't sound much like diversity simply enhancing the educational experience. What she argues is that increased interaction across racial lines is in fact the best way to overcome the effects of slavery, because the most entrenched structures that continue disparate racial effects stem from forces that are shown to diminish when there is more racial interaction, particularly at more intimate social levels, and one of the best ways to foster such increased social interaction is to get better representation at formative social institutions like schools, including dormitory housing assignments. Increased integration for the sake of better serving the educational purpose of these institutions is in fact what the Supreme Court's diversity justification allows for as a motive, and it doesn't limit itself to classroom experience. But Anderson argues that it is that very increased diversity and systematically more social interaction between races that will lead to the effects the first paragraph quoted above says should be the real justification for affirmative action.
So we can no longer say that these are separate issues. It's not that there are these separate justifications for affirmative action, and one justification is deemed by the Supreme Court to be unconstitutional, while the other, less-convincing, one is deemed constitutional. What Anderson has argued, rightly in my view, is that the one the Los Angeles Times editorial says is less convincing (but that the Supreme Court has endorsed) actually does meet the purposes of the first one that they find more convincing (but that the Supreme Court precludes). And it strikes me that this is the best and most convincing reason for wanting to increase diversity and promote higher levels of integration at the college and university level.
What strikes me as the most important countervailing argument is not the legal question of the 14th Amendment, as the Chief Justice and Justices Scalia, Kennedy, Thomas, and Alito seem to think. The 14th Amendment was crafted by people who had no problem with interracial marriage bans, so an original-intent justification won't work to ban affirmative action. Perhaps an original public meaning argument would, but 14th-Amendment jurisprudence has long accepted at least some cases where other considerations trump equal protection. The standard it has to meet varies for different groups, but discrimination of various sorts can be morally and legally justified in certain settings, provided the right criteria are met. The question is whether the diversity rationale or some other rationale can be strong enough to justify giving some (but not absolute) preference for having a more integrated incoming class in a university or college.
But there's another question that gets much less attention, and that's how that integration or diversity gets achieved. The 1978 Supreme Court case ruled out absolute quotas, because they reserved spots for specific under-represented groups no matter what. So even if the only applicants were grossly underqualified and would fail out in one semester, they couldn't give those spots to others. That's been recognized by the Supreme Court since 1978 to be too far. The 2003 cases established another way that the methodology can go awry. The University of Michigan's undergraduate admission program assigned specific numerical values to different under-represented groups, and there was a certain percentage increase or decrease in the numerical value assigned to those candidates for admission because of their demographic. That's not as absolute as reserving spots for certain groups and never giving them to anyone else, but it was too absolute for Justices O'Connor and Breyer, who joined the more conservative contingent on that case (whereas they joined the more liberal contingent on the law school case that established the diversity rationale as constitutional). So both those methods went too far, according to enough votes on the Supreme Court to get it established as precedent.
What I wish would get more attention is another matter of what might go too far. Assuming it's perfectly fine to want to increase the number of representatives of an under-represented group, one way to go too far in bringing them in is to bring in people who will be unable to do the college-level work expected of them at an institute of higher learning. It was easy for me to see the disvalue in students unable to do college-level work when I tutored for the Syracuse University football team. Some of the team members I tutored needed some extra help but could do fine with that help. (One in particular was a stellar student.) But a few really had either very low ability or severe under-preparation and needed to be at a community college. There's a low enough retention rate on major athletic programs that admissions offices need to do a better job at resisting some of the candidates team coaches try to bring in.
Why can't the same true of affirmative action admissions? So even if race-consciousness is an important consideration in college admissions, many of the arguments against affirmative action would still have some moral force in leading admissions offices to be more careful in who they give a leg up to on their diversity justification. It seems too quota-like if they're just trying to achieve a certain percentage (which I'm sure they are -- the numbers bear that out, as Justice Thomas' dissent to the 2003 cases substantiated). Not being absolute makes it not an absolute quota. But not being absolute doesn't make it not a non-absolute quota. If they have a goal of a certain percentage, and they try to achieve it by bring in candidates who really aren't best served by being there, then they're morally failing, even if they have some wiggle room and aren't reserving an absolute number of spots for certain groups. It seems to me that this is what is in fact going on in most university and college affirmative action programs, and I don't think it serves the groups it's aiming to help. The populations who are under-prepared are not best served by bringing them to institutions they're not prepared for. They're best served by programs that help them before they get to college, as states where affirmative action has been outlawed have been able to do in order to do a back-door kind of affirmative action to get their quota goals met without allowing admissions to be race-conscious in any overt way.
Also, there's the issue of blindness to important diversity issues while focusing only on mere racial assignment. The important concern should be getting more integration with populations who really have barriers to integration. If you look at race and ignore other factors, then the children of immigrants and middle-class under-represented populations tend to get the benefit of those policies, when the most needy non-immigrant descendants of American slaves are not getting the help they need to achieve and get accepted to higher-learning institutions. Even when affirmative action helps the individuals it's intended to help, which I've already argued is not always the case, it's not usually helping those who most need it. Specifically targeting it to help them won't help them either. It's the other programs that help them earlier that really need the most effort. This is indeed something that even Justice Thomas, one of the strongest opponents of affirmative action on the Supreme Court, would be delighted to support. A key component of his resistance to affirmative action is recognizing how little it does to help the people who most need help and how much it might in fact harm some of them. There seems to me to be something right about that, and affirmative action simply isn't the answer to that problem.
So what would I conclude about all this? I do think an integrative purpose for some race-awareness in admissions can be perfectly fine and compatible with the equal protection concern of the 14th Amendment. I also think those who engage in such admissions policies need to be really careful that they're doing it in a way that achieves that goal well, and I suspect most of them do not. I also think what colleges and universities do with them once they arrive matters significantly, and it's important that they not foster so much of a tie among under-represented students that they form less-significant social ties with over-represented groups, as happened every single year at Brown University when I was there, because of a well-meaning program that happened before the bulk of other students arrived that allowed minority and international students to form social ties that lasted them their entire four-year Brown experience in ways that, for many, led them not to form as many ties with other groups. (This can happen in non-racial ways too. The evangelical Christian groups can lead evangelical students to do that.)
There was a legitimate purpose for such things. Consolidation and solidarity can provide those with similar experiences to unite over them and realize that they are not alone in their experiences. Community within an identity group can be a very good thing. Nonetheless, integration (particularly a kind of social integration that doesn't ignore difference but allows different people to recognize and understand their differences) is the best means to overcoming racial problems, and I think those who use the diversity justification for affirmative action have a moral obligation to ensure that they actually foster integration rather than fostering segregation once the under-represented students are there. That takes walking a fine line and being concerned about two things at once, things that seem hard to seek both together. You have to balance out various considerations. This is a more complex issue than either side usually presents it as. I'd like to see the Supreme Court recognize that when they revisit it this coming term, but I suspect we'll instead continue with two sides who each see only half the picture.
NPR had a story last night talking about how the narrative of a partisan Supreme Court is undermined by this week's decisions. On one level, it doesn't go remotely far enough. A much larger portion of Supreme Court decisions than is usually recognized are unanimous, and quite a number far along not-remotely-partisan lines, with lineups that would strike anyone who believes the narrative as unusual, but it's not that unusual for it to happen. There are certainly general trends, with the justices appointed by Democrats tending to vote together more often and the justices appointed by Republicans tending to vote together more often, but the lineups on issues that aren't political hot-button issues are often odd from that perspective. Some of the justices on both sides of the usual division are more textualist and inclined to read laws narrowly (Scalia, Thomas, Ginsburg, Sotomayor, formerly Souter), and some on both sides are more pragmatist and inclined to read laws more expansively (Roberts, Kennedy, Breyer, Alito, formerly Stevens, O'Connor). I remember a particular decision from a few years ago that was precisely on those lines. Then there are the free-speech decisions, where the justices don't line up along political lines at all. Earlier this month, one decision had Scalia, Thomas, and Kennedy aligned with Sotomayor and Kagan. The dissent was Roberts, Ginsburg, Breyer, and Alito.
The health care decision did have an interesting lineup, but what's most interesting about it is that there were actually several lineups on separate parts of the decision. Here are several issues and the lineup on each:
1. Is the individual mandate a tax? Yes: Roberts, Ginsburg, Breyer, Sotomayor, Kagan; No: Scalia, Kennedy, Thomas, Alito
2. Is the individual mandate, if conceived of as a federal law requiring people to buy health insurance, constitutional? No: Roberts, Scalia, Kennedy, Thomas, Alito; No: Ginsburg, Breyer, Sotomayor, Kagan [this one does fall according to one common partisan voting pattern]
3. Is the Medicaid expansion constitutional? Yes: same lineup as 1 above.
4. Is it constitutional for the federal government to penalize states for resisting the Medicaid expansion by taking away their previous Medicaid funding? No: Roberts, Scalia, Kennedy, Thomas, Breyer, Alito, Kagan; Yes: Ginsburg, Sotomayor
Update: Here are three further questions that I left out.
5. Does the Anti-Injunction Act apply (which would make it impossible to challenge the law until someone has to pay the penalty)? The Court was unanimous in saying that it does not apply.
6. Does the Anti-Injunction Law apply to all taxes, including de facto taxes declared not to be taxes by the legislature and president signing the tax into legislation? No: the #1 majority justices; Yes: the #1 dissenting justices
7. Does the entire health care law fall if it the mandate is unconstitutional? No answer on this question: the #1 majority; Yes: the #1 dissent
One thing that was particularly interesting is that on questions 1 and 3 the Chief Justice joined the four liberals, while swing voter Anthony Kennedy, who is usually more willing than the Chief to join those four, remained with the three conservatives in the dissent. Another was the fact that seven justices agreed on question 4. These two facts, I think especially the second, was what led the NPR reporter to notice that this decision really breaks from the narrative.
What struck me was how similar this is to what actually happened with one decision that the usual narrative takes to be one of the most bitter partisan divisions, decided for purely political reasons. That decision is 2000's Bush v. Gore, which had three questions that had different lineups.
1. Was the Florida Supreme Court's handling of the 2000 election compatible with the equal protection clause of the 14th Amendment? No: Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas, Breyer; Yes: Stevens, Ginsburg
2. Is Dec 12 the date recounts need to be settled, and thus the best remedy is to go with the original vote count rather than allow recounts beyond Florida's final date? Yes: Rehnquist, O'Connor, Scalia, Kennedy, Thomas; No: Stevens, Souter, Ginsburg, Breyer (this was the part along typical partisan lines)
3. Did the Florida Supreme Court violate Florida law? No: Stevens, Souter, Ginsburg, Breyer; Yes: Rehnquist, Scalia, Kennedy; uncommitted: O'Connor, Kennedy
Seven justices agreed that there was an equal protection violation, and five agreed that Florida had set a date for recounts to be ended, a date that wasn't met. Four disagreed with the latter majority and wanted a recount to go beyond the date the majority had recognized as Florida's required date. But the important constitutional question of a violation of equal protection rights was supported by seven justices, and this is just about never recognized in those who put forward the usual narrative on this case. I've long thought that if anyone was being judicially activist here, it was the two justices who saw the constitutional problem but who refused to recognize Florida's deadline for recounts to be done by. But the conservatives and moderates usually instead get blamed for deciding the case based on their poltical views. It's an interesting case of two liberal justices recognizing that the conservatives had the constitutional question right, just like in the Medicaid part of the health care cases. It's refreshing to see a mainstream media reporter recognize it with the health care case. It would be nice if those who put forward the usual narrative would recognize something similar with cases like Bush v. Gore.
This morning I was listening to yesterday's segment of Tell Me More on NPR on whether same-sex marriage would legally require allowing multiple marriage. The correct answer, of course, depends on which arguments are used for same-sex marriage, because some of them do require allowing multiple marriage, and some of them don't. If you argue that people should be able to marry whoever they want, as long as it's consensual, then there seems to be nothing to rule out multiple partners at once. If you argue that it's a violation of gay people's rights to prevent them from marrying someone they have an orientation toward when straight people get to marry someone they have an orientation toward, that sort of argument doesn't easily translate to marrying more than one person at a time. You're trying to give equal rights to everyone, and the rights you give might restrict it to one partner per person.
Jonathan Rauch was one of the guests on that segment. His overall argument is that same-sex marriage doesn't threaten traditional marriage but adds to it, since it doesn't actually detract from anyone's traditional marriage. It doesn't subtract marriages but adds them, and we need more marriage, so same-sex marriage can only help. His argument isn't sensitive at all to the lines of thought involving natural purposes, as traditionally marriage has been thought of, so it doesn't touch some of the more common arguments against same-sex marriage. But his dismissal of that kind of argument isn't new. He's written much of the subject and standardly argues that way. Here's he's assuming there's no such argument without actually arguing against it, but I think he has spent time arguing against it elsewhere.
But here's an interesting argument that's new to me:
Remember, fundamentally what I tell people is when straights get the right to marry three people or their dog or a toaster, gay people should have that too. But until then, that's not what we're talking about. We just want to be able to marry someone instead of no one.
On one level, this argument is silly. There's no ban on gay people marrying anyone, and there's no ban on them marrying anyone that other people of their sex can marry. In that respect, they have the same rights as straight people of their sex in a location where there's no legally-recognized same-sex marriage. What they don't have is the rights that people of the opposite sex have, namely to marry someone of their sex. So you can't argue for same-sex marriage by saying that a gay man doesn't have the same right I have to marry a man. As a heterosexual man, I don't have that right either. A gay man has the same rights I do with respect to the class of people we can marry. (Well, technically, that's true only if he's married. If he's not, then he has a much larger group he can marry, since it's above zero. So, to be more careful, an unmarried gay man can marry anyone of the same class of people that an unmarried straight man can marry.)
But what Rauch really means is that a gay person can't marry anyone in the class of people they'd want to marry, while straight people can. He's arguing for that right for gay people too. Given that he wouldn't want to marry a woman, giving him that right doesn't help him with the actual goals he might have for himself in marriage, which would be to be married to a man.
This argument, interestingly, would not help with interracial-marriage bans. Rauch's resistance to multiple marriages from a same-sex marriage perspective is that only allowing some options is enough. It's not violating his rights if you prevent him from marrying dogs, toasters, and so on, as long as you're doing that with straight people too. By the same reasoning, though, it's not violating his rights to prevent him from marrying black people, as long as you're doing that with straight people too. He's allowed for the compatibility of same-sex marriage with opposing multiple marriage on one level, but you have to look at all the moral positions and arguments he endorses to see if his view really allows for it. You have to bring in other moral premises to see why interracial-marriage bans are wrong, for example, because his argument doesn't get you that far. The question is whether other arguments he'd agree with can supply the necessary resources to argue against interracial-marriage bans. But then there's also the possibility that moral arguments he gives for same-sex marriage would also provide resources to argue against banning multiple marriages.
So his argument here doesn't show that he can resist multiple marriage consistently. It shows that someone could support same-sex marriage and reject multiple marriage. Whether he could depends entirely on the arguments he uses for same-sex marriage, some of which do require recognizing multiple marriage and some of which don't. I do think quite a lot of them do, and many of those are presented by people who want to avoid legal recognition of multiple marriage. This issue will eventually reach the courts, and it's one that those who deal in the business of moral and legal arguments should think about more carefully.
The Ninth Circuit has overturned Proposition 8 in California, which reinstated a ban on same-sex marriage as part of the California Constitution when the California Supreme Court had interpreted the California Constitution as requiring the state to issue marriage licenses to same-sex couples seeking them. Eugene Volokh has one of the better explanations of the reasoning that I've yet seen (but I haven't looked around too much yet). I have two immediate thoughts:
1. It seems clear that the Ninth Circuit is using a rational basis test, which is the strongest test the Supreme Court has been willing to give for sexual-orientation discrimination. As I've argued before, I think this is a mistake on the part of the opponents of Proposition 8. If they want the analogy with Loving v. Virginia and the overturning of bans on interracial marriage, they ought to be presenting this as a case of sex discrimination, not sexual-orientation discrimination. A black person under Virginia's law could marry a black person but not a white person. A white person could marry a white person but not a black person. So the marriage rights of a black person differed from the marriage rights of a white person in terms of who they could marry. That's race discrimination, which faces a strict scrutiny test, the strongest test the Supreme Court recognizes for discrimination cases.
Similarly, a restriction on marriage to opposite-sex couples does treat one group differently from another group. But those groups are not gays and straights. A straight man can marry the same people as a gay man. The discrimination is along sex lines. A man can't marry the same people as a woman. That's sex discrimination, by the same sort of reasoning that you find in Loving v. Virginia. It's not sexual-orientation discrimination. Sex discrimination faces intermediate scrutiny, the middle-level test of the three the Supreme Court recognizes for discrimination cases. Sexual-orientation faces only rational basis scrutiny, which is the weakest of the tests. So by Supreme Court precedent, the opponents of Proposition 8 would be better suited to pursue their arguments in terms of sex discrimination, which would be both more analogous to Loving v. Virginia and more difficult to get a law past it because of the higher scrutiny. But they continue to push it as a sexual-orientation discrimination claim, which I think helps their purposes much less.
2. The basic claim of the opinion is that there is no rational basis for a law like this, a claim that I think is obviously false. To pass rational basis scrutiny, all there needs to be is some sort of reason-based argument for the law or provision in question, not one that the Court even needs to think is a very good argument, just one that a rational person could support with some reasoning. It has to be a pretty grossly-awful argument to fail rational basis review. The Supreme Court has consistently upheld that stupid laws can pass rational basis review. The Ninth Circuit's opinion in this case says exactly that. Proposition 8 fails rational basis review because it doesn't even have a stupid but somewhat rational connection between the law and some hypothetical government interest. And the key point they were addressing was not same-sex marriage bans in general but just ones in states where there are already civil unions. The decision is silent on whether there's a rational basis for same-sex marriage bans themselves. Their argument is that there's nothing to a same-sex marriage ban when all the rights of marriage are already present. It's a symbolic law, and there's no rational basis for symbolic laws.
Basically what they're saying is that there's no even minimally-rational basis for reserving the word 'marriage' for opposite-sex couples while observing civil unions for the issues of rights. But I can think of several, and even if they're not very good arguments they might pass the rational-basis test as long as they're not such awful arguments that the reasoning is utterly unconnected with the law itself. Here are a few. Some people want to keep government out of marriage. Passing civil-union laws is fine, according to this view, but having the government recognize more marriages rather than fewer marriages is the wrong direction. I have a lot of sympathy for this view, and the reasoning strikes me as certainly passing rational-basis review.
Another basis is preferring an honorific title for traditional marriage because of its historic role and greater natural connection with childrearing. This is not a non-sequitur, since there is a greater connection between traditional marriage and childrearing than there is with same-sex marriage, and it doesn't have to pass the test of rigorous and careful argumentation to be a rational basis. The mere historical connection makes it not completely arbitrary, and that's enough to pass rational-basis review. So one could favor civil unions for actual rights while wanting to reserve the word 'marriage' for something that recognizes the traditional institution for its contribution to childrearing that the new-fangled same-sex marriage concept is not able to convey, and this is so even if it's not a very good ethical argument to reserve that word for traditional marriage. All that there needs to be is some non-arbitrary connection, and there's at least that.
A third argument I've heard sometimes is that same-sex marriage encourages legitimizing sexual relationships that are much more prone to divorce or breakup than opposite-sex marriages, and that result would undermine marriage as an institution. Again, this doesn't have to be a very good argument. It might well be a terrible argument. It might be that affirming same-sex relationships as marriages would actually have the opposite effect. But all that matters for rational-basis review is that a legitimate argument can be put forward that isn't completely unrelated to the state interest in question, and that condition seems to be met. You'd need to do some empirical study to show whether this is a good argument, but on the face of it it's not so stupid that it's irrelevant to the issue at stake. Some reasoning is put forward, and it's reasoning that has to be evaluated, reasoning that's not so obviously bad that you can dismiss it out of hand, and that's the test that the Ninth Circuit claims to be using.
As I've said, I don't think it's in the best interest of opponents of Proposition 8 to use rational-basis review when they can use intermediate scrutiny for sex-discrimination. Intermediate scrutiny requires that the basis being presented is substantially related to the legitimate government purpose, and I'm not sure all the above arguments would pass that. The third almost certainly wouldn't, in my view. I think the second might, and I'm not sure you can get out of the first one even with strict scrutiny. But my point is that they'd have an easier time of it if they didn't insist on treating this as sexual-orientation discrimination, which isn't the most accurate way to go anyway if they want to propose a parallel with Loving v. Virginia. I suspect it will all come down to Justice Anthony Kennedy anyway, though, and he's already on record saying that he thinks same-sex marriage is not required by previous Supreme Court decisions, so he'd have to think there's some new argument here that changes everything he's already written.
Here are some things Herman Cain has said about abortion:
1. He's opposed to abortion in all circumstances, but it's not the government's role to make that decision.
2. The president has no authority to order people not to seek an abortion.
3. He would appoint judges who know the Constitution contains no right to abortion.
4. He would veto legislation funding Planned Parenthood.
5. In the case of rape, it comes down to a family & doctor choice. He's opposed to it morally but shouldn't tell the nation what to think, because the government shouldn't be making our decisions on social issues.
6. The government shouldn't make decisions on whether abortion should be legal.
7. People shouldn't be free to seek abortions. Abortion should not be legal. (This was said immediately after 6.)
8. He opposes abortion with exceptions.
9. He opposes abortion except when the mother's life is threatened.
When it comes to Herman Cain's view on abortion, we seem to have a choice among (a) the uncharitable dishonest-about-his-views interpretion, i.e. he's not consistently being honest about what he thinks (b) the uncharitable intelligence interpretation, i.e. he's holding a flatly inconsistent set of beliefs in a pretty explicit way, (c) the uncharitable dishonest flip-flopper interpretation, i.e. he's not being honest about some change of views (and one such change has to be within minutes, (d) the uncharitable misuse-of-language interpretation, i.e. he's perhaps saying someone, perhaps only some of the time, that everyone misunderstands because of a highly idiosyncratic use of terms, or (e) he's got such a nuanced set of views that I can't even figure out how to put it together, with all my training in doing so.
(e) is the most charitable, but I'm extremely skeptical that he's so finely-tuned in his language without one of the others being true. I tend to think (d) is the least uncharitable of the others. Perhaps he means "it's not the role of government" and "it's the person's choice" in odd ways. You can, after all, say the second while thinking certain options should be illegal. You just wouldn't say so in an abortion discussion without being radically misunderstood. You could, also, say the first while thinking it's the role of a legislature but not the role of the executive or legislature to countermand the wrongful decision of the courts, but again you'd be radically misunderstood. That's about as good as I can do to put this together, and if it takes something like that, I think he's politically finished. There's no way the general public is going to be willing to be that charitable. But that may well be what's going on.
So here's my proposal. I'm going to take Herman Cain to hold to the following positions, all of them compatible with all of the above statements if they might have pragmatically-odd by semantically-possible meanings, and I'm going to see if I (or a commenter) might find a statement by him that does not fit with this view. So here's the approach I have in mind:
So (1) means abortion is morally wrong in all cases, but it's not the federal legislative and executive's right to do anything on that issue anymore, given the Supreme Court's wrongful intervention on the issue. (2) means the president can't tell people what to think and has been removed from being able to have any direct influence on abortion law at least at the very general level of deciding when it is legal to have an abortion in cases when the Supreme Court takes it to be a fundamental right. (3) clearly states that the Supreme Court wrongly decided Roe v. Wade, despite several claims that he hasn't made such a statement from social conservatives, and his preference for judges who would seek to do what they could to reverse or roll back that decision. (4) signals his opposition to federal funding for abortion or for abortion providers, something a president can have some say in. (5) signals his moral opposition to abortion in rape cases but his willingness to think that (i) that's a case when the law should be less clear than he thinks morality is, (ii) he as president shouldn't dictate what Americans' views on such matters ought to be, even if he has a clear policy preference, or (iii) given the Supreme Court's dictates, it's no longer the president's position but is given to a woman and a doctor to decide, even if he would prefer that the Supreme Court hadn't done that and would undo that dictate. (6) If he means the legislative and executive branch of the federal government here, and he isn't giving his ideal preference but his understanding of the limited role the Supreme Court has given him as president, then it's consistent with his view in his immediate next statement. (7) Ideally abortion should be outlawed, even if it's not possible to do so right now on the level of the legislature and executive. (8) Abortion is almost always wrong. There are exceptions, and he's aware of at least one. (9) One of those exceptions is when the mother's life is threatened, and there may or may not be others (and from above rape is not one of them).
This does strike me as a consistent position, and it does mean taking some of his statements in odd ways, but that's clearly more charitable than taking him to be lying about what his views are, lying about some change in his views, or so confused on the issue that he can't put together meaningful back-to-back statements explaining coherent positions. He does have an Obama-like history of overstating things and having to take them back, but his clarifications don't usually have the character of stating a view he holds and then backing off to a view he doesn't hold, and they also don't usually have the character of being corrected but embarassed to admit it. They usually have the character of not realizing how he might be misinterpreted and then being more careful the second time. It's just that this would be a case where his attempts to be more careful are only partially successful.
So that's my proposal of what I think he most likely is thinking. I admit that there are a couple points where it's a little bit of a stretch, but I don't think the evidence justified being less charitable at this point, and I'm not going to support misrepresentation even by accident, which is I think what's going on if people are legitimately convinced he's pro-choice if he really isn't. He's certainly got a problem stating his views, but I'm not sure the general-election opponent is any better at expressing his views.
I can't see why pro-life voters would want this man representing them on this issue, but a vote for a president isn't necessarily a vote for the ideal person to represent your cause. It's a vote for the candidate that you think is better than the others. In a primary, that means the person who can best balance (a) the ability to beat the other candidate and (b) the ability to be a decent enough president to be preferable to the other party's candidate. In a general election, it's almost always a choice between two candidates as to which one will be better than the other on the issues you think are most important. It may turn out that someone who isn't the best person to represent your views on an issue does satisfy these criteria. Whether that person for pro-life Republicans is Herman Cain is, at least, not yet settled by this issue, in my view (although there are other issues that might serve as possible obstacles, and I could see this issue turning into one, depending on further statements that I haven't seen or he hasn't yet made). It partly depends on other people, too, but I have a better sense of what they think, at least the ones with much chance of winning.
At least twice in the last few weeks I've come across someone claiming that the U.S. Supreme Court affirmed the one-drop rule in 1986. I was surprised, because shortly before the first time I saw this claim I'd come across someone else saying that the 1967 case Loving v. Virginia, which is best known for overturning Virginia's ban on interracial marriage, also declared the one-drop rule unconstitutional. So I eventually started looking into both claims. It turns out that the first is false, and the second is true. That is, the Supreme Court did overturn one-drop-rule style racial classification laws in 1967, and they did not affirm a one-drop-rule law in 1986.
What Chief Justice Earl Warren's opinion in Loving actually says in the main text is that racial classifications need to be subjected to the most rigid scrutiny, especially if they form the basis of some impact in a criminal proceeding. But this isn't a new judgment. It's a quotation of a previous decision. And it's not clear what the most rigid scruntiny is supposed to be or how it would apply to one-drop rule laws, and he never applies it to such laws. But he points out that the basis of the racial classifications used in the Virginia law were instituted specifically to preserve the conception of white purity advocated by the invidious discrimination of 1924 Virginia that was of a piece with the kind of segregation at odds with the Equal Protection clause of the 14th Amendment, and that can't stand up to the most rigid scrutiny.
It's not quite clear, however, until you get to footnote 11, which says that the racial-classification system of Virgina is "repugnant to the Fourteenth Amendment" (and therefore presumably unconstitutional, although he never explicitly says they're overturning that law too). Since this is the reasoning for the overturning of the interracial-marriage ban, and not some aside on a topic not necessary for guiding the current case, I think it does count as overturning one-drop rule laws, at least any justified on the basis of white supremacy or purity (as I'm sure all actual one-drop rule laws were). But I now understand how it can do that in a way that I didn't really notice before. The real work is done in a footnote.
But the first claim is simply false. What happened in 1985 was a case involving a Louisiana woman who had thought of herself as white all her life who then discovered that her birth certificate listed her parents as colored. Louisiana law, until 1983, had a 1/32 one-drop rule, which counted someone as colored for having one black ancestor out of 32 great-great-great grandparents. Her parents were classified as colored by that law. She herself actually didn't count as black by that law, since it was her great-great-great-great grandmother who was black. But her birth certificate listed her as colored because her parents were listed as colored on theirs. So it wasn't the one-drop rule law that led her to be classified as black on her birth certificate. It was the cultural practice among doctors and midwives of transferring the racial-classification of the parents to the child when both parents had the same classification. Her parents had never objected to their classifications, and corrections to birth certificates apparently had to come from the person whose birth certificate it is issuing a complaint and request for correction.
So the state court concluded that there was no legal justification for forcing the birth certificate office to issue corrected birth certificates. They then said that the repealed 1/32 one-drop rule law was not relevant, because midwives and doctors aren't subject to the prohibition on government employees' violation of the 14th Amendment, since they're not government employees. Finally, they said the one-drop rule laws involved with this did, by their judgment, violate the Constitution, but they were bound by Louisiana Supreme Court precedent on that question. None of their analysis depended on any stance on the one-drop rule law, which was no longer on the books at this time anyway and thus could not be overturned by a court in any direct way. The case apparently got appealed to the Supreme Court in 1986, and they opted not to hear it, but it seems crazy to me to take that as a sign that they would affirm a one-drop-rule law.
In the oral arugments for Barenblatt v. United States (1958), a case about the investigations conducted by the House Un-American Activities Committee, Justice Potter Stewart objected to a particular line of reasoning by saying, "It would certainly be false, an oversimplification, to say that the right of privacy is a constitutional right." At the time, no one seemed to object, but then most of the justices weren't as vigorous in oral arguments as most of them are now. It struck me as a pretty bold statement of a view that probably seemed somewhat uncontroversial at the time but now sounds so jarring because of how the Supreme Court has talked about rights to privacy for decades.
That it could be said with no controversy in 1958 perhaps says something about the method of judicial interpretation of those who suddenly found it to be so clearly present in the Constitution a mere seven years later. Justice Stewart was one of the dissenters to Griswold v. Connecticut in 1965, which first declared there to be exactly such a right, but he lost that argument. By the Roe v. Wade decision in 1972, he had apparently given up entirely, since he voted with the majority in that case. I suspect the reason is that he was always more concerned about going along with precedent than the rightness of a decision on the merits, just as his compatriot Justice John Marshall Harlan II was.
Both Justices Harlan and Stewart were seen as conservatives in those days (although Stewart later came to be seen as a moderate once there were enough Republicans' appointees on the Court again that the 50% of the Republicans' nominees who were actually conservative were able to bring conservative jurisprudence back into the mainstream after decades of the influence of FDR appointees.) Justice Stevens and Justice Breyer have been the strongest defenders of precedents they don't agree with in more recent years, so this tendency to favor precedent runs across traditional liberal-conservative lines. But Justice Stevens, to this day, insists that he is a judicial conservative, specifically on the ground that he respects precedent above other considerations, because that's what he sees being a judicial conservative amounts to, ignoring other ways of being judicially conservative (e.g. sticking closer to the constitutional or statutory text rather than policy arguments, ruling narrowly according to the smallest issue that would decide the case in question rather than making wide-ranging proclamations against laws not at issue in the immediate case, favoring states' rights over federal power, ruling in a way that politically conservative views would favor, and so on).
I don't really have an argument to make here. I just thought it was interesting to hear a comment like that in a pretty different context during a time when such a comment was less politically-loaded and could go relatively unquestioned by the other justices once it was put forward by the junior-most justice of the time.
The U.S. Supreme Court heard Griswold v. Connecticut in 1965, probably one of the most important cases leading up to Roe v. Wade. The law at stake was a Connecticut ban of the sale of contraceptives.
The state's arguments for the contraceptive ban are interesting. There are two justifications. One is a consequentialist argument based on the assumption that it's bad for there to be population decline, which required looking at the 1960 census and seeing the population diminish from 1950 to 1960. (The population loss actually tells you nothing if you can't show that the population loss is based on birth and death rates, because it ignores the possibility that people moving from one state to another cause the biggest portion of the change, as the opposing lawyer pointed out.) In any case, the idea is that population decline is a bad thing, and it's therefore a good thing to pass laws preventing people from contributing to that by choosing to have sex without having children.
The second argument given by Connecticut is aimed at preventing immorality, but the immorality in question is not the immorality of contraception (which would have been more controversial) but the immorality of adultery. How does banning contraception diminish the likelihood of adultery? People are less likely to have adulterous relations if they think it might give rise to children.
The second argument is pretty poor. The first might have some basis if the population decline is so much as to be truly harmful to some important good, but that surely was not the case with Connecticut in the early 1960s.
So I don't think there are very good reasons for the law. But I was completely unconvinced of any constitutional argument against the law. Interestingly, the lawyer opposing the law was adamant that he didn't think taking his side would mean prohibiting abortion bans, which the Supreme Court went on to do within a decade, using this case to justify the right to privacy that they found in the Constitution in this case (a basis Ruth Bader Ginsburg repudiated in her Supreme Court nomination hearings almost thirty years later, despite her support for abortion rights).
I wonder if we'll see the same exact phenomenon with Lawrence v. Texas and same-sex marriage. Lawrence declared bans on same-sex sexual acts to be unconstitutional by a 6-3 vote. In the opinion, Justice Kennedy took great care to insist that their decision did not require a constitutional right to same-sex marriage. If the Supreme Court does declare bans on same-sex marriage to be unconstitutional, will they cite Lawrence v. Texas as precedent for the principles they use? There's certainly precedent for using cases that say they don't imply something to argue that they do imply it.
I recently listened to the Supreme Court oral arguments in Loving v Virginia, the 1967 case that overturned anti-miscegenation laws. I took a lot of notes and wrote up my thoughts afterward, and here are some of the observations and reflections that resulted.
1. The Lovings' lawyer began by presenting the law they wanted declared unconstitutional, the reason the law was passed, and a little bit about its precursor laws, feeling no need at that point to present any criticism of any it, It was simply clear from his tone that he thought the reasons behind the law were thoroughly immoral. No justice questioned him on this, and it sure seemed to me that they tacitly agreed. I wasn't around at the time, but this seemed to me to be a good sign that by 1967 we'd moved far enough along already that everyone on the Supreme Court saw this law as despicable, morally speaking (which in itself doesn't settle the legal question, and thus they let the oral argument continue past this point).
2. When the Virginia attorney general got his turn, it didn't take long for him to refer to the Lovings' union as a marital relation. He never disputed that it was a marriage, just whether Virginia had authority to declare their marriage illegal. That's one clear difference between Loving v. Virginia and the same-sex marriage cases in the courts right now that we don't often see people drawing attention to. Those who favor laws banning interracial marriage were happy to use the word 'marriage' for those relations. They didn't think such a union wasn't a genuine marriage. They just thought such marriages should or at least could be banned without it violating anyone's constitutional rights. The issue of whether it would be a marriage simply didn't occur to them. It obviously was. On the other hand, that's precisely one of the key issues for same-sex unions. Whether they should count as marriages to begin with has been a crucial issue of controversy, and whether these laws therefore revise a longstanding definition of marriage, and whether a state can resist that, is therefore not an issue that came up under Loving v. Virginia. Those who say that Loving v. Virginia automatically settles such questions by the same reasoning have not recognized this. There are several ways that the arguments aren't parallel in every respect, and that's a noteworthy difference. If the arguments based on the parallel are going to prevail, then this difference ought to be shown to be legally unimportant.
3. Three lawyers argued on the Lovings' behalf. The third, William Marutani, on behalf of the Japanese American Citizens League, made an interesting vagueness point. He was arguing that it's impossible to determine whether someone is white by definition of Virginia law, according to which someone has to be purely white in having no non-white ancestors. The people we call white are of such mixed ethnic background in the melting pot of the United States (and in the European history among prior ancestors) that it's impossible to be sure with most people (at least the ones without good genealogical records) whether they are white according to the Virginia law. It's a good practical reason not to have such laws, even apart from the moral question. The opposing lawyer rightly pointed out that the Virginia statutes about those matters weren't being challenged, so by the rules of our legal system it's not really legally relevant unless someone challenged those statutes in the lower courts first. But I thought it was nice to see someone making that point as early as 1967. It's worth pointing out that he didn't make any mention of the even-more-mixed status of blacks, even at the time (but it's much stronger now, I'd wager), but that wouldn't have helped him except to challenge the definitions of terms used in the law according to how they're used in science or something like that, which is irrelevant to the law's constitutionality, since the law itself didn't make any difference for blacks according to how much black ancestry they had. All it took was a smidgeon.
4. The precise equal protection point is worth reflecting on. There was also a due process argument, but I don't pretend to understand how due process is supposed to work. I've never heard a due process argument that I've understood, for whatever reason. It's not that I understand what's being argued and disagree. I simply have no clue what's being argued with due process claims, and I've never gotten any clarity on that despite hearing lots of oral arguments, reading lots of opinions, and trying to wade through discussions in popular-level presentations. Due process rights, according to some (e.g. Justices Scalia and Thomas), is merely ensuring that the laws are followed and that no improper procedures are followed. I once agreed with this, but that makes it a vacuous claim to say that you can't pass laws that deprive someone of rights without due process of the law. You can't pass laws without ensuring that the law is really passed? Then I discovered that at the time the 14th Amendment was passed, there was much discussion of what's called substantive due process, which reads more into due process than the vacuous sort of view I've lost interest in defending. So when that part of the Constitution was framed, it may well have involved this notion of due process. Nonetheless, I can't make heads or tails of what due process is supposed to be on the substantive due process view or how one would argue that due process rights include some claimed right, other than reading one's own policy preferences into the notion, which I don't consider legitimate judicial practice.
But the equal protection claim is one I fully understand. Every person within a state's jurisdiction is guaranteed equal protection of its laws. If a law treats one person differently from another without a strong enough justification for doing so, then equal protection is violated. The Virginia attorney general conceded that there is no justification for his state's anti-miscegenation laws if all you had to go on were genetic and scientific issues. The only moral justification his state could have to pass such a law, in his view, is the harmful effects of interracial marriages on the children of such marriages and on the participants, and he concedes that these effects are because of the attitudes of the people of Virginia toward such unions and toward children of such unions. So it's a highly contingent claim, one that presumably (as far as he's argued) would not be present in a state without such attitudes.
That's another difference from the arguments of those who oppose same-sex marriage. Their arguments are not based on contingent factors about people's attitudes toward same-sex unions and people's attitudes toward children raised by those in same-sex unions (who are not possibly the product of those unions, to begin with, at least in the biological sense, although some might not exist but for those unions). Some of the arguments of those who oppose same-sex unions are based on statistical claims about marriage as traditionally conceived compared with same-sex unions when called marriages, and some of those (for all we know) might be contingent matters due to social circumstances. If no one opposed same-sex relations, these things might be different.
But not all the arguments are like that. Some have to do with the sociological conclusions of numerous studies showing that not only are two parents more valuable for the sake of the child than one but that having parents of both sexes tends to be better (other things being equal) for the children and having the child with biological parents (other things being equal) tends to be better for the child. So marriages as traditionally conceived will, apart from contingent matters like social attitudes, be better for the children, and thus there's a reason to encourage such unions by calling them marriages and not unions that don't have those features. Whatever the merits or demerits of such an argument are, it's a difference in the justifications used for preventing same-sex unions being called marriage and the justifications used for preventing marriages between those of different races, and that's rarely acknowledged in the arugments of those who think Loving v. Virginia's arguments apply exactly to the same-sex marriage cases. Those differences need to be dealt with for such arguments to go through.
5. I've long thought that the equal protection point itself isn't parallel, for reasons I explained here and here. I don't think I've changed my mind on that question since writing those posts, although I've realized that I need to look into some Supreme Court rulings in the 70s on equal protection and women to see if the sex-discrimination argument should work with the federal Constitution given current Supreme Court precedent. But I'm not going to get into the details of any of that here. This post is long enough already that I don't need to rehash what prior posts already covered or to predict what I might come to after listening to the arguments in those 1970s cases.
I've been posting thoughts I had while listening to the oral arguments for several Supreme Court cases from the early 1960s. See my earlier posts Supreme Court Religion Cases and Substantive Side-Issues with the School Bible-Reading Cases.
I'd like to turn now to the central issues in these cases. The main issue was whether it's constitutionally allowed for a government school system to have prayer or public Bible reading for students in school. In one case there was a prayer written to be non-sectarian (it was claimed), said by the students. Another had The Lord's Prayer, simply read by one person. One case had a Bible reading chosen by a teacher, without comment. Another had students choose a passage and read it with a short reflection of their own.
Justice Potter Stewart, who has gone down in history as a moderate swing justice, was the only justice to take the position that is usually seen as the traditional, conservative view (the view that would have won in the Supreme Court a generation earlier and probably would win now if there weren't all this precedent against it). That's how liberal the Supreme Court was during the Warren Court. A moderate was seen as the long conservative holdout. On this issue even Justice John Marshall Harlan II (who sometimes voted against liberal rulings by the Warren Court), Justice Hugo Black (who often used the kinds of textualist arguments Justice Scalia uses; Black opposed finding the constitutional right to privacy that was later used to justify Roe v. Wade), and Justice Byron White (one of only two justices to dissent to Roe v. Wade) sounded right in line with Chief Justice Earl Warren, Justice William Orville Douglas, Justice William Brennan, and all the others. Stewart was the only justice who recognized that the establishment clause was set up to avoid a state church like British Anglicanism (or at least the only one who thought its purpose mattered in interpreting it). The others all thought it also included government endorsement of religious content.
One of the arguments discussed in the case was that these policies didn't just violate the Establishment Clause by setting up a state religion. They even violate the free exercise clause by compelling religion, even though the policies all had opt-out clauses. Any parent who wanted a child not to participate could have their child opt out. The opposition resisted seeing this as a genuine option and called it coercion anyway, because some kids made fun of those who opted out. So it's state coercion to participate in religion, because some kids happened to make fun of someone not participating. I didn't know that students in public schools count as agents of the state.
One argument in favor of the Bible-reading policies and the saying of the Lord's prayer was that the opposition was a recognition of atheism as opposed to theism, and that itself constitutes an establishment of religion (given that atheism had at that point come to be recognized as a religion legally). The consistent response was to point out the diversity of possible motivations for opposing such a policy. It's fairly common to point out that Jews don't recognize the Lord's prayer (although someone pointed out a very similar prayer in the Kaddish) or that there are religions that don't recognize the Bible at all. The more interesting response was that some people might have so much reverence for the Bible that they don't want it tarnished by being read in such a setting (a stupid claim for a Christian to make, but apparently some have done so) or that they don't trust teachers as representatives of a secular state to teach the Bible or select passages for reading, given that which choices are made for reading might itself constitute an element of teaching the Bible (a much more reasonable motivation for not wanting this done, albeit a policy argument more than a constitutional one in my view). At one point, Justice Black (I believe) even pointed out that the Lord's prayer is in the same chapter where Jesus tells people not to pray in public (although that's not quite what Jesus said).
There's an interesting debate among the lawyers over whether the Bible can be used simply for moral teaching in isolation from whatever would make it count as religious teaching. One lawyer made the (obvious, in my view) claim that you can't separate the moral teaching of the Bible from the religious elements. The lawyer on the other side who resisted this made the (also obvious, in my view) claim that there are moral propositions contained in the Bible that are often held from a completely different religious framework (including atheism). I think they were talking past each other at many points. There certainly are moral teachings in the Bible that can be separated from their context, but the context is plainly religious, and the context was being read. It's hard to take the Sermon on the Mount as a merely moral tract while ignoring the tremendous emphasis Jesus places on the moral obligation to follow him, which certainly is a sectarian claim in the sense that matters on the view that the Constitution doesn't allow any expression of religion by state actors.
There's a tremendous tension in the Supreme Court's eventual position, one that several lawyers predicted would occur if they decided this case in the way that they did. They wanted to uphold state actors engaging in civic religion in several places, e.g. "In God We Trust" on coints, prayer in the Congress and Supreme Court, "under God" in the pledge of allegiance. They also wanted to claim that it's an unconstitutional establishment of religion for the Bible to be read in schools without comment (not requiring the presence of students who could opt out), for a traditional prayer like The Lord's Prayer to be read out in schools (not expecting any student to say them or even be present), or for a state to craft its own prayer with the goal of avoiding sectarian elements that Jews or Unitarians might object to. The Supreme Court had to continue to draw fine lines, often ones without much moral significance, to justify their unusual combination of positions, but they had a hard time resisting continued erosion of public expressions of religion by state actors, as several lawyers in these cases in the 1960s had pointed out would be the consequence of these cases. It strikes me as the better variety of slippery-slope argument. [The bad kind: doing X will lead to doing Y because weak-willed people will be hard to turn things back once it goes a certain distance, even though X is morally justified and Y isn't. The good kind: if you do X, which seems fine to you, then the same principles require doing Y, which you object to. When the claim that the same principles apply is correct, this is an excellent argument, despite getting made fun of constantly in public debates, e.g. when Rick Santorum pointed out that the Supreme Court's 2003 decision against laws prohibiting same-sex sodomy would require removing laws against incest, which libertarians have now been arguing on exactly those grounds based precisely on that case.]
One argument from the Unitarians' lawyer was rejected by the Supreme Court, quite explicitly. He was claiming that it doesn't matter if there's a secular purpose to an activity, because every establishment of religion has a secular purpose. People don't engage in civic religion unless they think there's a purpose for teaching morality. He's right, of course, about people's motivations. But does that mean the state is endorsing a religion just because it uses something from a religion for moral reasons or to affirm the tradition as contributing good things? The Supreme Court has rejected this, saying that there needs to be a secular purpose (along with a few other conditions), but some expressions of religion are all right given such a purpose (and given that the other conditions are met).
The same lawyer also would have allowed something the Supreme Court later rejected. He said it would be fine for the school to invite students to come read the Bible or pray at recess. It wouldn't be fine for a school to do it and then let people opt out. The Supreme Court has disallowed both. Private individuals who are not state actors can invite students to do this on school grounds, but the Supreme Court won't let a private actor who is also a state actor do this, because students can't distinguish those roles in the same person.
Here's an argument I find wholly unconvincing that might have gone into my previous post if I'd chosen. One lawyer argued that children are not known for the capacity to dissent, and I think the implied conclusion is that we should be more careful with them when it comes to opt-out clauses. But that misses a key legal principle in our system. It's not children who do the opting out when it comes to what they're exposed to in schools. It's their parents. This law allowed parents to opt their children out. He cites Justice Frankfurter as giving this argument as a precedent, but one of the justices (perhaps Powell ) rightly objects that that wasn't a controlling opinion of the Supreme Court. It was a concurring opinion where Justice Frankfurter had agreed with the Court's conclusions but written his own reasons up as well to indicate some other thoughts he had. So it's not a precedent. But it's an unconvincing argument anyway, given how our legal system works. Maybe there are better arguments in the area of this, but I don't think this has much weight at all.
I wrote a little a couple weeks ago about the early 1960s Supreme Court cases Abington School District v. Schempp and Murray v. Curlett (and perhaps to a lesser degree Engel v. Vitale). I said at the time that I have two further posts planned, one on substantive issues that weren't central to the cases and another on the central questions the Court dealt with. This post is the first of those two. Here are four relatively independent observations from the oral arguments I listened to that affect the main argument to some degree but aren't very closely about the central issue. I have some more thoughts on the fundamental issue to come at some point.
More or Less Sectarian to Comment?
There's an interesting argument among the various lawyers and justices during the oral arguments for these cases, about whether it's more sectarian or less sectarian to read from the Bible without comment or with comment. One argument is that reading without comment is more like studying the Bible as literature, since it doesn't involve endorsement or criticism, whereas commenting on it expresses a viewpoint. On the other hand, some argued that simply reading it seems more like endorsement, since there's no room for critiquing anything in the text or showing room for interpreting in different ways, whereas commenting on it allows for critical discussion or demonstration of different interpretations. I suspect the two views have something different in mind for what the commenting would be like, but I thought it was an interesting debate. The two lawyers defending two different Bible-reading laws were making these opposite claims. One law explicitly disallowed comment, and the other allowed for it. But the justices seemed to disagree among themselves about which claim was more correct.
Two lawyers on the same side on the general questions disagreed about whether the Constitution is vague (in the following sense, anyway). One insisted that any particular policy (1) either is or is not an establishment of religion and (2) either is or is not a violation of someone's free exercise of religion. Another countered that whether something falls into either category comes in degrees. Justice Stewart joined in on this, also pointing out that the free exercise clause and the establishment clause are sometimes at odds with each other, presumably implying that it's the job of the Supreme Court to figure out which applies more strongly in a particular case. (This, I think, is a sign of what later came to be seen as his moderate approach as a swing voter on key cases in the more ideologically-diverse Supreme Court to come. But he comes across as a hard-line conservative in this case, given where everyone else on the Court was. I'm not sure Justices Thomas and Scalia differ from Justice Stewart on these questions very much.)
I've discovered that oyez.org has Supreme Court audio going back to the 1960s. I've been listening to some religion cases from the early 1960s, and I've noticed some very interesting things. I listened to three different cases (two decided together), and I wrote up a bunch of thoughts along the way. I wanted to post some on the substantive issues of the cases, but for this post I'm restricting myself to some interesting observations on side issues that came up along the way. The cases involved have to do with prayer and Bible reading in public schools.
It's fascinating listening to these oral arguments a half-century later. It's like listening to radio broadcasts from the period, which our local NPR station plays sometimes in the evenings, except these are all names I've read about and who have authored opinions that have shaped the application of constitutional rights that we all just assume now. It's hard for me to imagine its being a live issue legally whether you can author a prayer for students to say every morning in school or whether you can have students reading passages from the Bible every single day over a loudspeaker to a whole school.
One of the issues that kept coming up when the Supreme Court took public Bible reading in schools to be sectarian was which Bible translation was being used. It seems that the King James Version was seen as particularly sectarian, and the only other Bible versions they even mentioned were the Douay-Reims translation of the Latin Vulgate (which apparently at the time was the standard English version among Catholics) and some Jewish translation of the Hebrew scriptures that I'd never heard of before this (the Jewish Publication Society version wasn't until I was in college).
Apparently there were riots at some point in the past over which Bible version was read when Catholics tried to get the Douay-Rheims translation included along with the KJV in school readings, and there was a public book-burning of the RSV as late as the early 1950s. At least the criticism of the TNIV hasn't usually gotten to those kinds of extremes.
One lawyer opposing Bible-reading represented Unitarians, whose claim was that reading the KJV opposed their beliefs by favoring the Trinity (e.g. for capitalizing "Spirit" in Genesis 1, which of course wouldn't be heard in a public reading, but he probably didn't know enough to point out the Trinitarian additions in the KJV in I John, which would have been a much stronger argument).
In a completely unrelated issue, I noticed at least three different people (among the various lawyers and justices) using the word 'infants' to refer to fifteen-year-olds without anyone thinking anything funny was going on with such a use. What's up with that? If Baptists had realized that that word could refer to a teenager, they would have been perfectly fine with Presbyterian views of baptism all these years.
One participant argued that the use of the name "Holy Bible" showed sectarianism. The response was that this is not a description but a name. It's probably less so now, but I think that was certainly right. In the 1960s, you probably couldn't buy a Bible without that title, and I suspect many people who didn't see the Bible as authoritative for life called it that without considering its meaning as a description, just as many Jews use 'Jesus Christ' without intending any Messianic overtones.
I intend to post some thoughts on more substantive issues in separate posts. Some of them are not quite central to the case but involve detailed issues and deserve their own posts. It would have been a huge post to include all that plus the main issues plus these side points all in one post, so I'm sort of working my way toward the central questions of the case.
from Wikipedia on Attorney general, commenting on one of my pet peeves:
Some people think the word "general" used in that way entitles the official to the honorific "general", but this is strictly only appropriate for military generals. The word "general" in "attorney general" is an adjective modifying "attorney". However, in the Supreme Court of the United States, the Attorney General of the United States and Solicitor General of the United States (for which office the same rule applies) are addressed as "General" by the Chief Justice. The plural of "attorney general" is "attorneys general." The history of the term dates back to Norman England when many of the French legal terms were imported into English common law. In French, the adjective often comes after the noun and so Attorney General meant General Attorney.
It's maddening that so many people insist on treating this as a rank like in the military, just because the word adjective "general is used". It makes no sense to address the U.S. Attorney General as General Holder, for example, given that he isn't being said to be a general of the U.S. attorneys but rather simply to be the U.S. attorney responsible for the government in general. You'd think the plural form "attorneys general" would signal to people that the word "general" is an adjective here.
But I think this is one of many cases where people are trying so hard to do something they see as correct but largely unrecognized that they end up being incorrect. (Another example would be those who use expressions like "Phil and I" as the object of a sentence after being told that you don't say "me and Phil", not realizing that it's only in a subject that you don't say "me and Phil" and that it's actually correct to say "me and Phil" in standard English.)
Justice Elena Kagan is now the junior-most justice of the U.S. Supreme Court. Justice Sotomayor no longer has to get the coffee and answer the door when the justices are in conference. It occurs to me that an interesting dynamic will now be taking place on the Supreme Court. With Justice Stevens' retirement, Justice Scalia is now the senior-most associate justice. This means, for the first time since 1969, the Chief Justice and the senior-most associate justice tend to vote together more often than not. Indeed, the next in line is Justice Kennedy, usually seen as a swing vote on the current Court, and then Justice Thomas, who also often votes with Chief Justice Roberts and Justice Scalia. It isn't until Justice Ginsburg, who comes next, that you get someone who typically votes on the other end from the Chief Justice.
Does this dynamic have any ultimate significance? Not immediately, since each vote counts just once. But the senior-most justice in the majority determines who writes the majority opinion. Usually that will be the Chief Justice in cases divided along ideological lines when Justice Kennedy sides with the conservatives. It's usually been Justice Stevens in cases when Kennedy sides with the liberals. So who will do so now? Not Justice Ginsburg. She's the senior-most among the four clear liberals. But four votes does not make a majority. She'd need a fifth vote to get a majority in cases involving all the justices, which would be most of them. That fifth vote will either be Justice Alito, who comes after her, or someone ahead of her in seniority, most often probably Justice Kennedy. In the 5-4 cases where Kennedy sides with the liberals, it will be Kennedy himself who determines who gets to write the majority opinion.
Before Justice Stevens' retirement, Justice Kennedy had a lot of power in ideologically-divided cases along the more typical lines. There are plenty of cases that don't go along such lines, but a good deal of the hot-button issues people who aren't serious court-watchers pay attention to involve 5-4 splits with Kennedy joining either the liberals or the conservatives. His power has come in being able to determine which side in such cases will win, sometimes using it to side partly with either side. But now he'll even get to decide who writes the opinion, and that gives him further power. Sometimes who writes the opinion affects quite a lot. It might affect which justices sign on to how much of the opinion, which doesn't usually affect the result but does often affect how much of the opinion becomes precedent for further cases and how broad a scope the opinion will be to affect other cases.
Sometimes it's in the best interests of ideological achievement of a majority to have the most moderate member of the coalition write the opinion. When Justice Breyer or Justice Ginsburg joins the conservatives, Chief Justice Roberts often will assign them the opinion, and he did the same with Justices Souter and Stevens. Justice Scalia has written several opinions when he's joined the liberals, and that would have been Justice Stevens' decision. But Justice Kennedy loves to write the hot-button opinions himself, so maybe he won't use this ability as fully as he could. Nonetheless, the justice who I happen to think is the most judicially-activist has been the most powerful member of the Supreme Court since Justice O'Connor retired, and now he's gained an ability that increases that power.
There's long been a narrative among haters of Justice Clarence Thomas that he's not very intelligent and just goes along with whatever Justice Antonin Scalia does. The reverse is actually closer to the truth (but not all that close). It was Thomas' outside-the-box thinking that got Scalia to rethink a lot of the assumptions in his legal philosophy, and he was far more willing to take less moderate positions because of Thomas than he had been before Thomas was on the Court.
I've sometimes wondered if it's some kind of residual racism that's driving this narrative, with the stereotype of lower intelligence driving people to assume that Thomas is likely the less intelligent of the two, and since they so often vote together....
But no one ever suspected such a thing of Justice Thurgood Marshall, even though he so often voted with Justice William Brennan, the leader of the liberal wing of the Court for decades. So it's not just plain assumptions about black Supreme Court justices not being able to be as smart as white ones. More likely it's an assumption that no black justice who thought carefully and honestly would come up with the positions Thomas holds. Since I know people who explicitly hold such a view (when the reality is that no careful, intellectually honest, and fully-informed person could hold that view), this is highly plausible to me.
What's ironic, besides the fact that Thomas influenced Scalia more than the other way around and that Thomas is widely-viewed by Court-watchers across the political spectrum as one of the most original thinkers on the Supreme Court in decades, is that it turns out Marshall and Brennan may have in fact had the relationship that so many have accused Thomas and Scalia of having. According to a new biography of Justice Brennan by authors generally favorable to him, Brennan didn't think all that highly of Marshall as a justice. It's not that he was unimpressed at his intelligence. Anything but. He was so thoroughly impressed at his work as the chief counsel of the NAACP that he had high expectations of Marshall as a justice, and he simply failed to live up to them, except on a few issues, largely because (on Brennan's account) Marshall just didn't maintain the interest in the issues to think independently and carefully about them, pretty much just going along with whatever Brennan said in the way that many have claimed Thomas does with Scalia.
It was a complete surprise to me to read about this, because Marshall has long been heralded as a champion for liberal causes on the Supreme Court in ways that none have gone since he and Brennan left the Court. Most of the liberals on the current Supreme Court are noticeably closer to the mainstream on several issues, including capital punishment, affirmative action, and the intersection of first-amendment religion and speech rights. The idea that he chose not to think on his own and just went along with Brennan most of the time doesn't fit with the usual narrative.
In a 5-4 decision written by Justice Ruth Bader Ginsburg, the Supreme Court has refused constitutional protection for 1st Amendment freedom of religion rights for a religious group on a campus at a state college or university to restrict its membership or leadership to those who hold to a statement of faith. Eugene Volokh defends the decision, but I think it's so wrong I don't know where to begin, but at least it's not as bad as it could have been, since (so far, anyway) the decision only covers a minority of cases. It only applies in cases where an institution bans all groups, religious or not, from requiring particular beliefs for membership or leadership. They took no stance on when there's a particular ban on religious groups, but I got the impression that at least Justice Kennedy would have switched to the other side in such cases.
In effect, the Supreme Court has given blanket allowance to a public institution to ban religious groups on campus. Sure, there might be religious groups who have no statement of faith whatsoever, but I know of none. Even Unitarian Universalists have one item in their statement of faith. You must not be an exclusivist or particularist. Someone who holds that Jesus is the only way to salvation could not subscribe to their statement of faith (although an atheist could). Yet if they were to have a requirement for leaders in their group to subscribe to such a statement, the Supreme Court has declared that a university or college could ban them from campus for it.
To be clear, there is a way to have the pretense of being a religious group under such a policy. You could have a statement of faith that you don't follow. What you couldn't do is require your actual members or even your leaders to hold to your statement of faith, not without being forced off-campus. Most student groups I know of do require members and leaders to accept their statement of faith, but they almost always allow participation from anyone, and the statement of faith is never front and center for actual participation in the group. Membership is usually a behind-the-scenes sort of thing, and the leadership selection process is often handled at special leaders' meetings or meetings that don't involve everyone who attends public meetings. So it's not as if these groups require you to hold to a statement of faith to show up at their public meetings and participate. They just require it of voting members and of those who lead the group, e.g. Bible study leaders, the emcee of a public meeting, or the group's president.
It's hard for me to imagine a religious group having any consistent religious identity without requiring at least its leaders to subscribe to a statement of faith. I could imagine a local chapter of Campus Crusade for Christ being infiltrated by a coalition of Muslims, atheists, and other non-Christian people in an effort to undermine the Christian identity of the group. If they wanted the use of campus rooms so that they could actually be, you know, a campus student group, then this policy would require them to allow this. If the influx of non-Christian members became strong enough, what would prevent them from becoming the group and making Campus Crusade for Christ into a group opposed to Christ? It's crazy to think that there isn't at least an as-applied challenge to this policy as unconstitutional in its requirement for viewpoint-neutral membership and leadership of groups who have viewpoint-specific purposes. I would say the same for political groups, either party-affiliated ones like the College Democrats or issue-specific ones like a gay-rights group or a pro-choice group. Imagine if the local chapter of the Sierra Club became overrun by anti-regulation libertarians or advocates of maximal pollution for the sake of short-term human pleasure.
Only in the case of religious groups does this amount to an unconstitutional burden, but as a policy matter it's grossly immoral. It's not the Supreme Court's job to care about that, but it is their job to recognize that this is an infringement of student groups' rights to have a religious identity while being treated like non-viewpoint-specific groups. This decision effectively tolerates suppression of religion on campus when it occurs in an organized group that implements measures to maintain its religious identity by means of a statement of faith. It's no excuse to say that this applies to non-religious viewpoint-specific groups, because it doesn't apply in any meaningful way to non-viewpoint-specific groups. Groups like fraternities will be able to meet on campus. That means there is an as-applied distinction between how religious groups are treated (and it's something necessitated by their religious identity) and how some non-religious groups are treated. I think that's a significant limitation on religious liberty on campus, and thus I'd have to agree with the minority on this one.
The Christian Legal Society still can argue in the Ninth Circuit that policy hasn't been fairly applied to groups but that they've been targeted while other viewpoint-specific groups have not. I have a hard time thinking the Ninth Circuit will support them, but that means it might return to the Supreme Court on that separate issue, and Justice Kennedy would almost certainly be at least open-minded on that claim (and I think Justice Breyer also would, which might make a 6-3 decision). Kennedy has sided with religious groups on similar issues in the past. He just couldn't bring himself to see a viewpoint-neutral requirement as a burden on religion, even though its effect is to ban all religions with any content. Judging by the questions at the oral argument, I could see Christian Legal Society winning the appeal of the further claim they're making that the Supreme Court refused to hear this time around due to its not being raised properly given that it wasn't an issue in the lower courts.
I finished up my classes today by looking at Thomas Aquinas on natural law, and it occurred to me that a famous proponent of natural law today served as a good example to illustrate one of Aquinas' points. Aquinas doesn't think every moral conclusion that we can derive from natural law should be enforced by human law. He says the moral principles most worth enforcing are those that involve serious, especially potentially-widespread, harm. Almost any natural law theorist is going to see harm to yourself as immoral, but Aquinas wouldn't see that as a good reason to prohibit it by human law. He also says it's not genuinely a law without promulgation, which includes enforcement to motivate compliance.
As I was talking about this in class, I remembered Clarence Thomas' hilarious dissenting opinion in Lawrence v. Texas from 2003 and mentioned it as an example. Texas had laws against same-sex sodomy that no one ever enforced. Cops investigating a serious crime followed a lead and legally invaded a home that they suspected their target was living in. They were wrong. He'd moved, and a gay couple now lived in that home. The police stumbled in on the two men in the process of an illegal sex act. They promptly arrested them, and the two men sued in a case that got to the Supreme Court. Did this law violate these men's constitutional rights by this law?
Thomas' opinion is priceless, and my summary of it got some audible laughs from students who don't normally show much interest in any class content. He says it's not unconstitutional for the reasons given in Justice Scalia's dissenting opinion. The reason he wrote separately was not to change anything from what Scalia had said. He wrote a separate dissent to make it clear that he thought the Texas law was stupid, and that's exactly the word he used. He wanted it on record that he wasn't voting to uphold the constitutionality of the law because he thought the law was a good law. He didn't. He just didn't think it was the place of the U.S. Supreme Court to tell state legislators what to do on such matters. The law itself, however, was a stupid law. It's largely unenforceable, and any enforcement will be so sporadic that it will have hardly any deterrent value anyway. This is exactly what you'd expect of a natural law theorist in the tradition of Thomas Aquinas. Aquinas insists that there shouldn't be human laws of this sort.
I decided to take a look at the Wikipedia entry for Justice Thomas to see what it might say about natural law, and it says the following:
Whereas Thomas' earlier writings had frequently referenced the legal theory of natural law, Thomas distanced himself from that controversial stance during his confirmation hearings, giving the impression that he had no views. Thomas himself later asserted in his autobiography that in the course of his professional career, he had not developed a judicial philosophy.
What he actually did at his hearings (and yes, I just reviewed the transcripts to be sure I was getting it right) was to point out the difference between (a) thinking natural law is the basis of why it's good policy to have certain constitutional rights and (b) thinking we should look to natural law rather than to the Constitution's positive rights when deciding matters of constitutional law. Thomas had long endorsed (a) and never endorsed (b), and what the entry describes as his distancing himself from his previous natural laws views was really his denial of (b), something natural law theory doesn't imply anyway. When he says he had no judicial philosophy in his book, that doesn't mean he hadn't ever developed a view on the foundations of ethics, which is what natural law theories are. Not having a comprehensive judicial philosophy does not mean having no meta-ethical views.
Of course, if I changed the entry and gave as an explanation the fact that this is what natural law theory states, especially if I indicated my credentials as a philosopher, it would be rejected as original research. Wikipedia is the only place in the world where actual expertise on an issue counts against you in terms of recognition as the sort of person who can say something authoritative. It only would allow this if I had written it in a book or something and if someone who had no expertise on the issue had read it in that book and cited it. The best I could do is mention it in the discussion page for the article and hope someone who isn't a philosopher might be convinced and thus change it.
Oklahoma has rendered doctors immune to lawsuits if they lie to parents about the test result of a prenatal tests for disabilities, provided that their reasons for doing so are to prevent an abortion. I want to leave aside the question of birth defects in general and just focus on the Down Syndrome case. The law seems to cover cases when a parent might be preventing very serious pain in a case where the quality of life is very low, and I'm not going to tackle those issues right now. So what I have to say here doesn't cover everything this law does, and even if everything I say here is right it's compatible with that to say that the law still is bad for covering cases that don't have the features that this post focuses on. What I have to say here doesn't get into those cases at all, so don't take me to be commenting on them or the law in general. That would take a lot more work and premises that are more controversial, I think.
So restrict the law, for the sake of this post, to cover just Down Syndrome cases. 90% of children at the fetal stage who are predicted to have Down Syndrome by prenatal tests are aborted. These tests have 5% false positives, so 5% of those cases are probably not genuinely Down Syndrome to begin with. Even if I didn't think abortion was generally a bad thing, I would be opposed to such a practice. I know people who have told me they would have made such a decision with their own child, and I just can't imagine being the sort of person who could think that, never mind do it.
Nevertheless, my initial inclination was to think this is entirely the wrong way to go about trying to do something to resist the deaths of almost all children with Down Syndrome before they ever even get to experience the world. This seemed like a bad law. But on reflection, it occurs to me that it's very difficult to explain why this law (and remember I'm restricting myself just to the Down Syndrome cases here) is all that bad, at least given four premises that I think are widely-enough held (or would be if people had all the facts, anyway).
1. Abortion is generally bad and worth preventing, even if at some cost and even if there are cases when abortion is permissible.
2. It's morally permissible to lie to someone who is going to do great harm, as long as you don't cause more harm in the process.
3. Killing a fetus who tested positive for Down Syndrome is participation in the genocide of those with disabilities.
4. The harm done by lying to a parent who wants to abort a fetus who tested positive for Down Syndrome is not greater than the harm caused by that parent's participation in the genocide of those with disabilities.
Many pro-choice people would agree with 1 but would still want abortion to be generally available (that's what makes them pro-choice rather than pro-abortion), and all pro-life people would agree with it. So I think a majority would support that.
Hardly anyone accepts 2 except a few absolutists, e.g. those who think any biblical commands that apply today and who wrongly think the Bible commands never to lie or, I suppose, contemporary Kantians who accept Kant's absolutism about lying. I know some people who hold such views, but I don't think they're in the majority. Most pro-life and pro-choice people alike think it would be permissible or even a moral obligation to lie to a Nazi hunting down Jews, for example.
I would argue that 3 is a perfectly accurate description for such an act, given that more than 90% of positive test results end in abortion. As a society, we're killing off those with Down Syndrome in huge numbers, and I would guess that many people who might be inclined to think aborting someone after such a test is all right end up being horrified when they discover that statistic. This requires no commitment to any pro-life position, just a recognition that it's a very bad thing to wipe out people just because they have a disability and that people with this particular disability generally have very happy lives and can contribute quite a lot to the world.
So the only way to resist this argument that I think would appeal to a great many people would be to argue that lying in this very particular circumstance causes more harm than the participation in the genocide of those with disabilities. But I don't think that will be as easy an argument as it might at first sound. There is the value of being able to trust a physician, and this does undermine that, but it's a law that only has one allowance for why that can happen, so it doesn't undermine confidence in physicians in general, just in physicians when it comes to this test. Is that such a bad result, given how bad the consequence is of parents being able to get this information? In fact, you might think the doctor's responsibility to the fetus requires not providing information to parents who the doctor knows would then kill the fetus, so the argument that this violates a doctor's professional responsibilities seems counted by the argument that giving the information also does.
I'm having a hard time, then, explaining why I have such resistance to this method of preventing abortions that result from the desire not to have a child with a disability. There seem to be cases where there's a strong argument in favor of withholding that information.
As you might be able tell from my sidebar, I've been watching a lot of Law & Order lately (all three series that play regularly), and one thing that I've found myself thinking in a number of episodes is that statute of limitations laws often serve injustice more than justice. A serial rapist will go free if they discover who he is one day beyond the five-year statue of limitations. Some crimes don't have a statute of limitations, but a five-year statute of limitations for rape sounds pretty unjust to me given how serious a crime rape is.
I had similar thoughts when we heard about the string of Obama appointees earlier this year who had committed federal crimes by lying on tax forms, sometimes for serious amounts of money, but it was long enough ago that there were absolutely no legal consequences or even requirements to pay up. It just strikes me as unjust. They're criminals, but it's illegal to prosecute them. They ought to be held accountable. So the law seems unjust.
Without doing any research on the history of statutes of limitations, I'd been having that thought. I never got around to exploring the justifications for such laws, though, but I finally did get an explanation on a Special Victims Unit episode (season 1 episode "Limitations") of why there are statutes of limitations. I'd seen this episode years ago, but I guess I hadn't been paying attention well or maybe wasn't raising the question, because a judge explains the original reasoning for such laws in an explanation for how he decides an issue:
The statute of limitations has a long history in common law. It exists to ensure that the defendant receives a fair trial, to make sure that the recollections of witnesses, if any, are fresh, to pressure the government to file charges in a timely manner, and so that, rightly or wrongly, accused citizens need not live their life in fear of the government pursuing them after a long delay.There seem to me to be three arguments there.
The District of Columbia was ticketing people for parking in their own driveways, and apparently this was actually legal (at least there was a law that provided for this; I'm not sure whether the courts would find it constitutional). I don't know if this is still going on, but it sounded like a hoax when I first heard of it.
David Boies, Al Gore's lawyer in Bush v. Gore, and Ted Olsen, George Bush's lawyer from the same case (who was also Bush's first Solicitor General) are working together to try to get judicial declaration of same-sex marriage at the federal level. Olson, to be fair, is not advocating the kind of policy-preference right that more liberal lawyers and judges often see in the Constitution and that he has consistently argued against his entire career. His argument doesn't even assume that there is a right to marry. It just relies on the fact that our court system recognizes a right to marry and concludes that it ought to be applied to gay couples as well as straight couples if we're going to be in the business of applying such rights. (However, their argument does seem to assume that couples as couples and not just individuals have rights, or else it assumes what an Equal Rights Amendment would have provided but didn't when it never passed.)
Rep. Charles Rangel (D-NY) introduced a bill in the U.S. House of Representatives to reinstate the draft during the Bush Administration and then voted against the bill (almost no one actually voted for it, which was what he had expected). I thought it was strange when Republicans kept pushing a marriage amendment that they knew they didn't have enough votes to pass, but it's well beyond that to waste government time and money by pushing something you don't even want passing to begin with.
All the miscreants who linked the phrase "miserable failure" to President Bush's biography had succeeded in making it the top website in Google for that expression. I was sure this was a joke when I first heard about it. It was pretty quick to verify, though. It had less skepticism when I heard that miscreants on the right had done the same with getting John Kerry's senate bio at the top of searches for "waffles".
Jeremiah Wright, whose heterodox, anti-white language makes him sound as if he doesn't think white people can be genuine Christians, actually has white members actively ministering in his congregation, sometimes even occupying leadership roles. (I don't think that excuses his rhetoric, which I think still counts as heterodox divisiveness, but he seems not to mean what he says.)
Philip Pullman wrote an entire scifi/fantasy series (His Dark Materials, whose first novel is The Golden Compass) out of an anti-religion and particularly anti-Christian agenda. When I first heard this, I thought it must be an exaggeration and that it probably just had some anti-religious elements throughout, but it turns out as the series develops that the agenda is far more central to the books than at first it appears. Pullman has even portrayed it as his remedy to the Narnia Chronicles, which he thinks call good evil and evil good. (I happen to think he failed in some crucial ways at what he was seeking to accomplish, but I wanted to post on that at some point separately, and I just haven't gotten around to it. Finishing up this post, which I started weeks ago but didn't have enough items to finish, has reminded me that I had wanted to do this, so maybe I'll get to it soon.)
Two days after his big announcement revoking President Bush's stem-cell policy, President Obama signed into law the big budget bill for the year, including a provision that prevented any funding from being used for embryonic stem cell research. I was especially skeptical about this, and it took me a long time and some hard Googling to find enough information to confirm it, but it does seem to have happened.
The Obama Administration's original discussion suggestions for his speech to school kids on September 8, 2009 really did ask kids to write about how they could help Obama, but they later changed it to ask about how they could be responsible. This was especially surprising given the actual content of the speech, which was mostly politically neutral. Why would they then ask how kids could help Obama when the thrust of the speech was just calling them to work harder in school and to be responsible? The original question therefore puzzles me a little unless he changed the speech too, which we have no evidence of (and the official explanation that the revision was what they had meant all along is completely implausible).
You can't help out your neighbor in Michigan by putting their kids on the bus for them every morning without a license to operate a daycare business.