Geoffrey R. Stone's Blog, page 15
June 25, 2011
Marriage Equality and the Catholic Bishops
New York State has taken an important step forward in our nation's never-ending quest to remake ourselves as a more decent, more inclusive, more just and more moral society. Looking back from the future, our grandchildren will surely see the legal recognition of same-sex marriage as an inspiring chapter in America's story, a story in which we have progressively abolished slavery, ended state-sponsored racial segregation, prohibited laws against interracial marriage, protected equal rights for women, promoted religious diversity and tolerance and outlawed discrimination on the basis of disability. There is no doubt that, in the long run, the United States will follow the lead of New York State. The challenge, though, is to make the long run short.
The most vehement opponent of marriage equality in New York was the Catholic Church. Indeed, in the heat of the debate in the state legislature, the New York State Catholic Conference issued a ringing proclamation: "The Bishops of New York State oppose in the strongest possible terms any attempt to redefine the sacred institution of marriage. Marriage has always been, is now, and always will be the union of one man and one woman. Government does not have the authority to change this most basic of truths."
That the leaders of the Catholic Church take this position is certainly their right, but it is a sorry testament to their understanding of their Church's own history in this nation. If anything, one would expect those leaders to be leaders in the fight against bigotry and intolerance, rather than voices in support of prejudice and discrimination. After all, as the historian Arthur Schlesinger, Sr. once observed, prejudice against Catholics has been one of "the deepest bias[es] in the history of the American people."
Sadly, this was so from the very beginning. In the mid-seventeenth century, both the Colony of Virginia and Massachusetts Bay Colony enacted laws prohibiting Catholic settlers. In the 1830s, prominent Protestant leaders attacked the Catholic Church as an enemy of republican values, and in the 1840s the "nativist" movement was whipped into a frenzy of anti-Catholicism that led to mob violence, the burning of Catholic property, and the killing of Catholics. Anti-Catholicism reached a peak in the mid-nineteenth century when Protestant leaders became alarmed by the heavy influx of Catholic immigrants.
Rabid anti-Catholicism continued into the 1920s, when anti-Catholics fumed that Catholicism was incompatible with democracy. When Al Smith ran unsuccessfully for president in 1928 as the first Roman Catholic candidate, Protestant ministers warned that the nation's autonomy would be threatened if he were to be elected, because he would listen not to the American people, but to the pope.
Many Americans opposed Smith because they believed the Catholic Church was "unAmerican." In an influential manifesto, the Lutheran Dr. Clarence Reinhold Tappert warned about "the peculiar relation in which a faithful Catholic stands and the absolute allegiance he owes to a 'foreign sovereign' who 'claims' supremacy in secular affairs and who, time and again, has endeavored to put this claim into practical operation."
In 1949, Paul Blanshard wrote in his bestselling book, American Freedom and Catholic Power, that the Catholic Church was widely seen as an "undemocratic system of alien control" in which the lay were chained by the "rule of the clergy." Even today, when things have clearly changed for the better, only 45 percent of Americans have a positive view of the Catholic Church (as compared to 53 percent who have a positive view of same-sex marriage).
In light of that history, one would have hoped that the leaders of a religion that has been so vilified and discriminated against would have been able to take a step back and recognize similar bigotry and prejudice when it is directed at others. Instead, the bishops' proclamation does precisely what the critics of the Church have long condemned. According to the proclamation, marriage is a "sacred" institution -- that is, an institution set apart for veneration by God -- and government therefore "does not have the authority to change" it. In other words, in a self-governing society, the democratically-elected representatives of the people do "not have the authority" to change the law in a way that conflicts with the religious beliefs of the bishops. That is not a winning argument.
Ironically, it is not a winning argument even with Catholics, a substantial majority of whom reject the Church's position and support same-sex marriage. Indeed, whereas 53 percent of all Americans now support same-sex marriage, approximately 60 percent of Catholics now take that position. It is heart-warming and inspiring when the adherents of a religion -- any religion -- are more decent, more wise and more moral than the "leaders" of their religion. It's enough to give one faith in the future.
The most vehement opponent of marriage equality in New York was the Catholic Church. Indeed, in the heat of the debate in the state legislature, the New York State Catholic Conference issued a ringing proclamation: "The Bishops of New York State oppose in the strongest possible terms any attempt to redefine the sacred institution of marriage. Marriage has always been, is now, and always will be the union of one man and one woman. Government does not have the authority to change this most basic of truths."
That the leaders of the Catholic Church take this position is certainly their right, but it is a sorry testament to their understanding of their Church's own history in this nation. If anything, one would expect those leaders to be leaders in the fight against bigotry and intolerance, rather than voices in support of prejudice and discrimination. After all, as the historian Arthur Schlesinger, Sr. once observed, prejudice against Catholics has been one of "the deepest bias[es] in the history of the American people."
Sadly, this was so from the very beginning. In the mid-seventeenth century, both the Colony of Virginia and Massachusetts Bay Colony enacted laws prohibiting Catholic settlers. In the 1830s, prominent Protestant leaders attacked the Catholic Church as an enemy of republican values, and in the 1840s the "nativist" movement was whipped into a frenzy of anti-Catholicism that led to mob violence, the burning of Catholic property, and the killing of Catholics. Anti-Catholicism reached a peak in the mid-nineteenth century when Protestant leaders became alarmed by the heavy influx of Catholic immigrants.
Rabid anti-Catholicism continued into the 1920s, when anti-Catholics fumed that Catholicism was incompatible with democracy. When Al Smith ran unsuccessfully for president in 1928 as the first Roman Catholic candidate, Protestant ministers warned that the nation's autonomy would be threatened if he were to be elected, because he would listen not to the American people, but to the pope.
Many Americans opposed Smith because they believed the Catholic Church was "unAmerican." In an influential manifesto, the Lutheran Dr. Clarence Reinhold Tappert warned about "the peculiar relation in which a faithful Catholic stands and the absolute allegiance he owes to a 'foreign sovereign' who 'claims' supremacy in secular affairs and who, time and again, has endeavored to put this claim into practical operation."
In 1949, Paul Blanshard wrote in his bestselling book, American Freedom and Catholic Power, that the Catholic Church was widely seen as an "undemocratic system of alien control" in which the lay were chained by the "rule of the clergy." Even today, when things have clearly changed for the better, only 45 percent of Americans have a positive view of the Catholic Church (as compared to 53 percent who have a positive view of same-sex marriage).
In light of that history, one would have hoped that the leaders of a religion that has been so vilified and discriminated against would have been able to take a step back and recognize similar bigotry and prejudice when it is directed at others. Instead, the bishops' proclamation does precisely what the critics of the Church have long condemned. According to the proclamation, marriage is a "sacred" institution -- that is, an institution set apart for veneration by God -- and government therefore "does not have the authority to change" it. In other words, in a self-governing society, the democratically-elected representatives of the people do "not have the authority" to change the law in a way that conflicts with the religious beliefs of the bishops. That is not a winning argument.
Ironically, it is not a winning argument even with Catholics, a substantial majority of whom reject the Church's position and support same-sex marriage. Indeed, whereas 53 percent of all Americans now support same-sex marriage, approximately 60 percent of Catholics now take that position. It is heart-warming and inspiring when the adherents of a religion -- any religion -- are more decent, more wise and more moral than the "leaders" of their religion. It's enough to give one faith in the future.
June 5, 2011
The Demise of "Originalism"
The Framers of the American Constitution were visionaries. They designed our Constitution to endure. They sought not only to address the specific challenges facing the nation during their lifetimes, but also to establish the foundational principles that would sustain and guide the new nation into an uncertain future.
The text of the Constitution reflects this vision. It defines our most fundamental freedoms in general terms: "freedom of speech," "due process of law," "free exercise" of religion, "equal protection of the laws." The Constitution sets forth governmental powers in similarly general terms: Congress may regulate "commerce . . . among the several states," the president will "take care that the laws be faithfully executed," the courts are authorized to decide "cases" and "controversies."
These phrases are not self-defining. The Framers understood that they were entrusting to future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time. As Chief Justice John Marshall observed almost two centuries ago, "We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs."
For the last half-century, conservatives have argued that the Supreme Court went too far in the 1950s and '60s in its efforts to preserve the vitality of self-governance and protect the rights of those most in need of judicial attention. They condemned what they derided as the "judicial activism" reflected in Warren Court decisions requiring one person/one vote, protecting the rights of people suspected of crime, holding unconstitutional laws forbidding mixed-race marriages, and prohibiting state-sponsored school prayer. They therefore demanded the appointment of judges committed to judicial restraint. But although judicial restraint is surely appropriate in appropriate circumstances, its sweeping, reflexive invocation would abdicate a fundamental responsibility that the Framers entrusted to the judiciary and therefore undermine a critical element of the American constitutional system. As Alexander Hamilton observed in the Federalist Papers, constitutional protections and limitations can "be preserved in practice no other way than through the medium of courts of justice."
Perhaps recognizing that a theory of unbounded judicial restraint is constitutionally irresponsible, conservatives next came up with the theory of "originalism." First popularized in the 1980s, originalism presumes that courts should exercise judicial restraint unless the "original meaning" of the text clearly mandates a more activist approach. Under this theory, for example, it is appropriate for courts to invoke the Equal Protection Clause to invalidate laws that deny African Americans the right to serve on juries, but not to invalidate laws that deny women that same right, because that was not the "original meaning" of the clause.
Originalism is fundamentally flawed. First, because those who enacted the broad foundational provisions of our Constitution often did not have any precise and agreed-upon understanding of their specific meanings, it is exceedingly difficult to know with any certainty what they did or did not think about concrete constitutional issues. As a consequence, judges purporting to engage in originalist analysis often project onto the Framers their own personal and political preferences. The result is an unprincipled and often patently disingenuous jurisprudence. There is no evidence for the claims advanced by originalists, for example, that the original meaning of the Equal Protection Clause prohibited affirmative action or that the original meaning of the First Amendment included the notion that corporations had a constitutional right to spend unlimited capital to influence political elections. Both of these claims, however, are central to today's conservative legal agenda.
The second problem with originalism is even more disqualifying, for it reveals the theory to be internally incoherent. Originalism asserts that those who crafted and ratified our Constitution intended the meaning and effect of their handiwork to be limited to the specific understandings of their time. But the notion that any particular moment's understanding of the meaning of the Constitution's open-ended provisions should be locked into place and taken as constitutionally definitive would have seemed completely wrongheaded to the Framers, who held a much bolder and more confident understanding of their own achievements and aspirations.
We have now entered a new and even more troubling phase of conservative constitutional jurisprudence. It is best characterized as "conservative activism." Justices who readily dismiss constitutional claims by women, political dissenters, and racial, ethnic, and religious minorities, but at the same time aggressively strike down restrictions on corporate political expenditures, laws regulating the sale and possession of handguns, affirmative-action programs, and the laws of Florida in the 2000 presidential election, are unmistakably using the power of judicial review in a highly selective manner that cannot credibly be justified by any principled theory of constitutional interpretation. Despite all of the conservative rhetoric about originalism, "strict construction," "judicial restraint," "applying rather than making the law," and "calling balls and strikes," this pattern of decisions raises grave questions about the considerations that actually drive the jurisprudence of our conservative justices.
The text of the Constitution reflects this vision. It defines our most fundamental freedoms in general terms: "freedom of speech," "due process of law," "free exercise" of religion, "equal protection of the laws." The Constitution sets forth governmental powers in similarly general terms: Congress may regulate "commerce . . . among the several states," the president will "take care that the laws be faithfully executed," the courts are authorized to decide "cases" and "controversies."
These phrases are not self-defining. The Framers understood that they were entrusting to future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time. As Chief Justice John Marshall observed almost two centuries ago, "We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs."
For the last half-century, conservatives have argued that the Supreme Court went too far in the 1950s and '60s in its efforts to preserve the vitality of self-governance and protect the rights of those most in need of judicial attention. They condemned what they derided as the "judicial activism" reflected in Warren Court decisions requiring one person/one vote, protecting the rights of people suspected of crime, holding unconstitutional laws forbidding mixed-race marriages, and prohibiting state-sponsored school prayer. They therefore demanded the appointment of judges committed to judicial restraint. But although judicial restraint is surely appropriate in appropriate circumstances, its sweeping, reflexive invocation would abdicate a fundamental responsibility that the Framers entrusted to the judiciary and therefore undermine a critical element of the American constitutional system. As Alexander Hamilton observed in the Federalist Papers, constitutional protections and limitations can "be preserved in practice no other way than through the medium of courts of justice."
Perhaps recognizing that a theory of unbounded judicial restraint is constitutionally irresponsible, conservatives next came up with the theory of "originalism." First popularized in the 1980s, originalism presumes that courts should exercise judicial restraint unless the "original meaning" of the text clearly mandates a more activist approach. Under this theory, for example, it is appropriate for courts to invoke the Equal Protection Clause to invalidate laws that deny African Americans the right to serve on juries, but not to invalidate laws that deny women that same right, because that was not the "original meaning" of the clause.
Originalism is fundamentally flawed. First, because those who enacted the broad foundational provisions of our Constitution often did not have any precise and agreed-upon understanding of their specific meanings, it is exceedingly difficult to know with any certainty what they did or did not think about concrete constitutional issues. As a consequence, judges purporting to engage in originalist analysis often project onto the Framers their own personal and political preferences. The result is an unprincipled and often patently disingenuous jurisprudence. There is no evidence for the claims advanced by originalists, for example, that the original meaning of the Equal Protection Clause prohibited affirmative action or that the original meaning of the First Amendment included the notion that corporations had a constitutional right to spend unlimited capital to influence political elections. Both of these claims, however, are central to today's conservative legal agenda.
The second problem with originalism is even more disqualifying, for it reveals the theory to be internally incoherent. Originalism asserts that those who crafted and ratified our Constitution intended the meaning and effect of their handiwork to be limited to the specific understandings of their time. But the notion that any particular moment's understanding of the meaning of the Constitution's open-ended provisions should be locked into place and taken as constitutionally definitive would have seemed completely wrongheaded to the Framers, who held a much bolder and more confident understanding of their own achievements and aspirations.
We have now entered a new and even more troubling phase of conservative constitutional jurisprudence. It is best characterized as "conservative activism." Justices who readily dismiss constitutional claims by women, political dissenters, and racial, ethnic, and religious minorities, but at the same time aggressively strike down restrictions on corporate political expenditures, laws regulating the sale and possession of handguns, affirmative-action programs, and the laws of Florida in the 2000 presidential election, are unmistakably using the power of judicial review in a highly selective manner that cannot credibly be justified by any principled theory of constitutional interpretation. Despite all of the conservative rhetoric about originalism, "strict construction," "judicial restraint," "applying rather than making the law," and "calling balls and strikes," this pattern of decisions raises grave questions about the considerations that actually drive the jurisprudence of our conservative justices.
May 20, 2011
Judicial Filibusters: Partisanship Run Amok
If anyone needs proof of how destructively polarized national politics has become, one need only consider yesterday's vote in the Senate on President Obama's nomination of Goodwin Liu to serve on the United States Court of Appeals. First, though, a few words on the filibuster. Under Senate rules, a minority of only 40 of 100 senators has the power to filibuster to defeat a proposed statute or nomination, unless 60 senators vote to invoke "cloture," which ends the filibuster and restores majority rule.
The filibuster is designed primarily to protect minority interests against persistent and overbearing dominance by an entrenched majority. Because excessive use of the filibuster would enable a minority of senators to paralyze both the Senate and the United States government, it has traditionally been used quite sparingly, usually only in exceptional circumstances.
This has been especially true in the context of judicial nominations. Indeed, the filibuster was not used to block a judicial nomination until 1968, when a coterie of conservative Republicans and southern Democrats used the filibuster to defeat Lyndon Johnson's nomination of Abe Fortas to serve as Chief Justice. The filibuster was not used against a Court of Appeals nominee until 1980, when Senate Republicans unsuccessfully tried to block Jimmy Carter's nomination of (future Supreme Court Justice) Stephen Breyer to the Court of Appeals. Although the judicial filibuster has been used increasingly since then, by Democrats and Republicans alike, it still has been used only three times in all of American history to block a straight up-or-down vote on Court of Appeals nominees - before yesterday.
Yesterday, 42 Senate Republicans (joined by one conservative Democrat) used the filibuster to block the Senate's consideration of Goodwin Liu. Although 53 senators voted to invoke cloture, the minority succeeded in preventing the Senate from even voting on the nomination.
So, who is this Goodwin Liu whom Republicans are so determined to defeat? He has been described variously by conservative senators and pundits as a "dangerous judicial activist," an "extremist," a "radical," and an "aggressive left-wing ideologue." Such characterizations of profoundly disserve our nation. They exemplify the sort of mindless and irresponsible partisanship that does serious damage to America's political culture and has brought Congress itself into disrepute.
Who really is Goodwin Liu? He is a graduate of Yale Law School, a Rhodes Scholar, and a former law clerk to Justice Ruth Bader Ginsburg. He worked for several years in the U.S. Department of Education and as senior program officer for higher education at AmeriCorps. After a stint in law practice, he joined the faculty of the University of California (Berkeley) School of Law, one of the most distinguished law schools in the nation. At forty years of age, he is now Associate Dean of the law school and a nationally recognized expert on constitutional law, education policy, civil rights, and the Supreme Court. He has published important and influential scholarly work in such distinguished law journals as the Stanford Law Review, the Yale Law Journal, and the New York University Law Review. He has won acclaim both as a scholar and teacher, and he has served on the boards of Stanford University, the American Constitution Society, the National Women's Law Center, and the Alliance for Excellent Education. In 2008, he was elected a member of the American Law Institute - a rare honor for one so young.
But is Goodwin Liu nonetheless an "extremist," a "radical," and an "aggressive left-wing ideologue," as his detractors assert? To answer that contention, listen to some of his conservative supporters, who include a virtual Who's Who among the nation's conservative legal community: Kenneth Starr lauds not only Liu's "obvious intellect and legal talents," but also his "openness to diverse viewpoints as well as his ability to follow the facts to their logical conclusion, whatever its political valence may be." John Yoo praises Liu as "a very good choice," Clint Bollick strongly supports Liu's nomination because of his "fresh, independent thinking and intellectual honesty," and Richard Painter describes Liu as "an outstanding nominee whose views fall well within the legal mainstream." I could go on, but you get the point.
Although Liu's right-wing critics lift carefully-selected passages out of context from his writings to distort his positions, those who actually understand - and, more importantly, care to understand - his views are universally respectful of his positions, whether they agree with them or not.
It is true, of course, that Liu is a "liberal," just as Antonin Scalia is a "conservative." Senators may legitimately vote against nominees if they strongly disagree with their views (note, however, that every Democratic senator voted to confirm Scalia in 1986), but the use of the filibuster to prevent a straight up-or-down vote on a nominee like Goodwin Liu is entirely inappropriate.
To justify their behavior, some Republicans invoke the Bork nomination battle as a relevant precedent, but their thinking on that score is completely wrong-headed. Bork was not the target of a filibuster. He was defeated in a straight up-or-down vote of 58 against and 42 in favor. If Liu were given such a vote, he would clearly be confirmed. The distance we have travelled over the past twenty-five years is a good measure of the extent to which we now live in a world of partisanship run amuck.
The filibuster is designed primarily to protect minority interests against persistent and overbearing dominance by an entrenched majority. Because excessive use of the filibuster would enable a minority of senators to paralyze both the Senate and the United States government, it has traditionally been used quite sparingly, usually only in exceptional circumstances.
This has been especially true in the context of judicial nominations. Indeed, the filibuster was not used to block a judicial nomination until 1968, when a coterie of conservative Republicans and southern Democrats used the filibuster to defeat Lyndon Johnson's nomination of Abe Fortas to serve as Chief Justice. The filibuster was not used against a Court of Appeals nominee until 1980, when Senate Republicans unsuccessfully tried to block Jimmy Carter's nomination of (future Supreme Court Justice) Stephen Breyer to the Court of Appeals. Although the judicial filibuster has been used increasingly since then, by Democrats and Republicans alike, it still has been used only three times in all of American history to block a straight up-or-down vote on Court of Appeals nominees - before yesterday.
Yesterday, 42 Senate Republicans (joined by one conservative Democrat) used the filibuster to block the Senate's consideration of Goodwin Liu. Although 53 senators voted to invoke cloture, the minority succeeded in preventing the Senate from even voting on the nomination.
So, who is this Goodwin Liu whom Republicans are so determined to defeat? He has been described variously by conservative senators and pundits as a "dangerous judicial activist," an "extremist," a "radical," and an "aggressive left-wing ideologue." Such characterizations of profoundly disserve our nation. They exemplify the sort of mindless and irresponsible partisanship that does serious damage to America's political culture and has brought Congress itself into disrepute.
Who really is Goodwin Liu? He is a graduate of Yale Law School, a Rhodes Scholar, and a former law clerk to Justice Ruth Bader Ginsburg. He worked for several years in the U.S. Department of Education and as senior program officer for higher education at AmeriCorps. After a stint in law practice, he joined the faculty of the University of California (Berkeley) School of Law, one of the most distinguished law schools in the nation. At forty years of age, he is now Associate Dean of the law school and a nationally recognized expert on constitutional law, education policy, civil rights, and the Supreme Court. He has published important and influential scholarly work in such distinguished law journals as the Stanford Law Review, the Yale Law Journal, and the New York University Law Review. He has won acclaim both as a scholar and teacher, and he has served on the boards of Stanford University, the American Constitution Society, the National Women's Law Center, and the Alliance for Excellent Education. In 2008, he was elected a member of the American Law Institute - a rare honor for one so young.
But is Goodwin Liu nonetheless an "extremist," a "radical," and an "aggressive left-wing ideologue," as his detractors assert? To answer that contention, listen to some of his conservative supporters, who include a virtual Who's Who among the nation's conservative legal community: Kenneth Starr lauds not only Liu's "obvious intellect and legal talents," but also his "openness to diverse viewpoints as well as his ability to follow the facts to their logical conclusion, whatever its political valence may be." John Yoo praises Liu as "a very good choice," Clint Bollick strongly supports Liu's nomination because of his "fresh, independent thinking and intellectual honesty," and Richard Painter describes Liu as "an outstanding nominee whose views fall well within the legal mainstream." I could go on, but you get the point.
Although Liu's right-wing critics lift carefully-selected passages out of context from his writings to distort his positions, those who actually understand - and, more importantly, care to understand - his views are universally respectful of his positions, whether they agree with them or not.
It is true, of course, that Liu is a "liberal," just as Antonin Scalia is a "conservative." Senators may legitimately vote against nominees if they strongly disagree with their views (note, however, that every Democratic senator voted to confirm Scalia in 1986), but the use of the filibuster to prevent a straight up-or-down vote on a nominee like Goodwin Liu is entirely inappropriate.
To justify their behavior, some Republicans invoke the Bork nomination battle as a relevant precedent, but their thinking on that score is completely wrong-headed. Bork was not the target of a filibuster. He was defeated in a straight up-or-down vote of 58 against and 42 in favor. If Liu were given such a vote, he would clearly be confirmed. The distance we have travelled over the past twenty-five years is a good measure of the extent to which we now live in a world of partisanship run amuck.
April 6, 2011
Eviscerating the Establishment Clause
In a decision earlier this week in Arizona Christian School Tuition Organization v. Winn, the five conservative Justices on the Supreme Court (Roberts, Scalia, Kennedy, Thomas and Alito) carved a large hole out of the Establishment Clause of the First Amendment. Although the issue in the case was subtle, the consequences are not.
The First Amendment prohibits government to make any law "respecting an establishment of religion." A central concern of the Establishment Clause, in the words of James Madison, was to forbid government "to force a citizen to contribute" even "three pence of his property for the support of" religion. As the Supreme Court recognized more than forty years ago, as a general proposition the Establishment Clause prohibits government from using its "taxing and spending power... to favor one religion over another or to support religion in general." Thus, the Establishment Clause forbids government to fund churches to enable them to spread their religious beliefs or to award special tax credits to individuals to reimburse them for their contributions to religious organizations.
There is a complication, however. Even though such government programs violate the Establishment Clause, it is not clear whether anyone can legally challenge them. To bring a lawsuit contesting a law's constitutionality, a plaintiff must have "standing" to sue. To have standing, a plaintiff must have suffered a distinct "injury in fact" as a result of the government action he wants to challenge. Standing is necessary because we want the parties to have a meaningful stake in the outcome of litigation. Otherwise, they might not adequately represent their position, which could result in a waste of judicial resources or, even worse, erroneous decisions.
Usually, this is not a problem. Most constitutional violations create a distinct "injury in fact" to particular individuals. For example, when an African-American child is excluded from a public school because of her race, when an individual is subjected to an unconstitutional search, when a person is arrested for her speech, or when a person is denied the right to vote, there is no question of standing. In such situations, it is easy to see that a particular individual has been harmed.
The Establishment Clause, however, poses a unique dilemma. Many Establishment Clause violations do not inflict a distinct "injury in fact" on any particular individual. Consider, for example, the illustrations I offered above. When government unconstitutionally funds religious organizations or grants tax credits to reimburse donors to such organizations, it is not clear exactly who is harmed -- other than taxpayers. But because the harm to any individual taxpayer is highly attenuated, traditional standing doctrine ordinarily would deny individual taxpayers standing to sue. This is a problem in the Establishment Clause context, because no one else has standing. The ironic result would be that no one would have standing to challenge the constitutionality of an unconstitutional government policy. Needless to say, this is untenable.
To solve this problem, the Supreme Court held in Flast v. Cohen in 1968 that taxpayers do have standing to challenge taxing and spending policies that violate the Establishment Clause. Until recently, federal courts at every level, including the Supreme Court, have consistently and broadly applied Flast to enable taxpayers to enforce the Establishment Clause.
In 2007, however, in Hein v. Freedom from Religion Foundation , the five conservative Justices took aim at Flast. In an opinion by Justice Samuel Alito, they held that taxpayers lacked standing to challenge the constitutionality of the Bush administration's program of faith-based initiatives. As Justice David Souter rightly observed in dissent, the conservatives' argument that Flast was distinguishable because it involved a challenge to a legislative rather than an executive branch program had absolutely no basis "in either logic or precedent."
Two days ago, the same five-Justice majority struck again. In Arizona Christian School Tuition Organization v. Winn , the Court considered a taxpayer challenge under the Establishment Clause to a state program that had provided $350 million in state tax credits to reimburse individuals who had made contributions to organizations that predominantly support Christian schools. In an opinion by Justice Anthony Kennedy, the conservatives held that taxpayers had no standing to challenge this program because it involved tax credits rather than government expenditures. In other words, if the government had given the funds directly to the organizations, the taxpayers would have standing, but because the government instead gave the funds to individuals to reimburse them for giving money to the organizations, the taxpayers did not have standing.
As Justice Elena Kagan explained in a powerful dissenting opinion, joined by Justice Breyer, Ginsburg and Sotomayor, this distinction "has as little basis in principle as it has in our precedent." Indeed, the conservatives' new approach "enables the government to end-run Flast's guarantee of access to the Judiciary." As Kagan observed, under the conservatives' analysis, a state that wants "to subsidize the ownership of crucifixes" can now simply grant a tax credit to individuals who buy crucifixes. That program would effectively be insulated from constitutional challenge, not because it is constitutional, but because no one would be permitted to raise the question..
With their decisions in Hein and Arizona Christian School Tuition Organization, the five conservatives on the Supreme Court have thus enabled government to violate the Establishment Clause at will, by denying courts the authority to declare even unconstitutional programs unconstitutional. In so doing, they have, in Justice Kagan's words, eviscerated "our Constitution's guarantee of religious neutrality."
The First Amendment prohibits government to make any law "respecting an establishment of religion." A central concern of the Establishment Clause, in the words of James Madison, was to forbid government "to force a citizen to contribute" even "three pence of his property for the support of" religion. As the Supreme Court recognized more than forty years ago, as a general proposition the Establishment Clause prohibits government from using its "taxing and spending power... to favor one religion over another or to support religion in general." Thus, the Establishment Clause forbids government to fund churches to enable them to spread their religious beliefs or to award special tax credits to individuals to reimburse them for their contributions to religious organizations.
There is a complication, however. Even though such government programs violate the Establishment Clause, it is not clear whether anyone can legally challenge them. To bring a lawsuit contesting a law's constitutionality, a plaintiff must have "standing" to sue. To have standing, a plaintiff must have suffered a distinct "injury in fact" as a result of the government action he wants to challenge. Standing is necessary because we want the parties to have a meaningful stake in the outcome of litigation. Otherwise, they might not adequately represent their position, which could result in a waste of judicial resources or, even worse, erroneous decisions.
Usually, this is not a problem. Most constitutional violations create a distinct "injury in fact" to particular individuals. For example, when an African-American child is excluded from a public school because of her race, when an individual is subjected to an unconstitutional search, when a person is arrested for her speech, or when a person is denied the right to vote, there is no question of standing. In such situations, it is easy to see that a particular individual has been harmed.
The Establishment Clause, however, poses a unique dilemma. Many Establishment Clause violations do not inflict a distinct "injury in fact" on any particular individual. Consider, for example, the illustrations I offered above. When government unconstitutionally funds religious organizations or grants tax credits to reimburse donors to such organizations, it is not clear exactly who is harmed -- other than taxpayers. But because the harm to any individual taxpayer is highly attenuated, traditional standing doctrine ordinarily would deny individual taxpayers standing to sue. This is a problem in the Establishment Clause context, because no one else has standing. The ironic result would be that no one would have standing to challenge the constitutionality of an unconstitutional government policy. Needless to say, this is untenable.
To solve this problem, the Supreme Court held in Flast v. Cohen in 1968 that taxpayers do have standing to challenge taxing and spending policies that violate the Establishment Clause. Until recently, federal courts at every level, including the Supreme Court, have consistently and broadly applied Flast to enable taxpayers to enforce the Establishment Clause.
In 2007, however, in Hein v. Freedom from Religion Foundation , the five conservative Justices took aim at Flast. In an opinion by Justice Samuel Alito, they held that taxpayers lacked standing to challenge the constitutionality of the Bush administration's program of faith-based initiatives. As Justice David Souter rightly observed in dissent, the conservatives' argument that Flast was distinguishable because it involved a challenge to a legislative rather than an executive branch program had absolutely no basis "in either logic or precedent."
Two days ago, the same five-Justice majority struck again. In Arizona Christian School Tuition Organization v. Winn , the Court considered a taxpayer challenge under the Establishment Clause to a state program that had provided $350 million in state tax credits to reimburse individuals who had made contributions to organizations that predominantly support Christian schools. In an opinion by Justice Anthony Kennedy, the conservatives held that taxpayers had no standing to challenge this program because it involved tax credits rather than government expenditures. In other words, if the government had given the funds directly to the organizations, the taxpayers would have standing, but because the government instead gave the funds to individuals to reimburse them for giving money to the organizations, the taxpayers did not have standing.
As Justice Elena Kagan explained in a powerful dissenting opinion, joined by Justice Breyer, Ginsburg and Sotomayor, this distinction "has as little basis in principle as it has in our precedent." Indeed, the conservatives' new approach "enables the government to end-run Flast's guarantee of access to the Judiciary." As Kagan observed, under the conservatives' analysis, a state that wants "to subsidize the ownership of crucifixes" can now simply grant a tax credit to individuals who buy crucifixes. That program would effectively be insulated from constitutional challenge, not because it is constitutional, but because no one would be permitted to raise the question..
With their decisions in Hein and Arizona Christian School Tuition Organization, the five conservatives on the Supreme Court have thus enabled government to violate the Establishment Clause at will, by denying courts the authority to declare even unconstitutional programs unconstitutional. In so doing, they have, in Justice Kagan's words, eviscerated "our Constitution's guarantee of religious neutrality."
February 15, 2011
DOMA Is Unconstitutional
A central question in the legal debate over the constitutionality of laws that discriminate against gays and lesbians (such as the federal Defense of Marriage Act) turns on the appropriate standard a court should apply in deciding whether the government's interest in treating gays and lesbians differently from other Americans is sufficiently weighty to justify the discrimination.
The Equal Protection Clause of the Fourteenth Amendment, which provides that no state shall deny any person "the equal protection of the laws," is the relevant constitutional text. But what does it mean?
A simple interpretation might suggest that the government may never treat people differently. But that is an implausible understanding of the text. All laws treat people differently. Speed limit laws treat people who drive 75 miles per hour differently than those who drive 45 miles per hour. People who have gone to medical school can practice medicine; others cannot. Citizens can vote; aliens cannot. In-state college students pay a lower tuition than out-of-state college students. People over 65 receive certain benefits that are not available to people under 65. And so on.
Surely, the Equal Protection Clause cannot mean that all such laws are unconstitutional. Recognizing this, the Supreme Court has held that most laws that treat some people differently from others are constitutional if the difference in treatment rationally furthers a legitimate government interest. As illustrated by the examples noted above, almost all laws pass this test.
But this does not exhaust the meaning of the Equal Protection Clause. The primary goal of the Clause, which was enacted in the wake of the Civil War, was to prohibit laws that discriminate against African-Americans. To effectuate that purpose, the Supreme Court has held that laws that discriminate against African Americans violate the Equal Protection Clause unless they pass "heightened scrutiny" -- that is, unless the discrimination is necessary to further an important government interest.
But is heightened scrutiny limited only to laws that discriminate against African Americans? That would be odd, because the text says nothing about limiting its core protection to African Americans. Rather, the text is open-ended, and it is therefore reasonable to assume that discrimination against African Americans was seen not as a singular problem, but as a paradigmatic one. That is, it is the paradigm of a certain type of discrimination that is especially problematic under the Equal Protection Clause.
Applying this understanding, the Supreme Court has concluded that the proper application of the Clause requires the use of heightened scrutiny to test the constitutionality of laws that discriminate against African-Americans or that discriminate against other groups in society that are similar to African Americans for purposes of the Equal Protection Clause.
What, though, does it mean to be "similar to African Americans for purposes of the Equal Protection Clause"? The Supreme Court has looked to several factors. First, it considers whether the group has been subjected to a history of discrimination. This is relevant both because such a history suggests that there may be prejudices at work in society that can taint the fairness of the political process, and because it is particularly unfair to heap additional burdens on groups that have been systematically discriminated against in the past.
Second, the Court considers whether the group can effectively protect itself in the political process. If a group does not have that ability, then it is especially vulnerable to the pernicious effects of prejudice and intolerance.
Third, the Court considers whether the group is objectively different in some meaningful way that would logically justify treating its members differently than others. For example, it is sensible to treat people born with severe learning disabilities differently in some ways than others, but it is not sensible to assume that race is relevant to an individual's capacity to function fully in society.
Finally, the Court considers whether the group's status is immutable. That is, African Americans cannot change their race. Therefore, laws that discriminate against African Americans are particularly unjust, because it is unfair to disadvantage people for characteristics that are largely beyond their control.
Considering all these factors, the Supreme Court has concluded, for example, that laws that discriminate against ethnic minorities and women are sufficiently similar to laws that discriminate against African Americans to justify testing them by heightened scrutiny.
What, though, of gays and lesbian? How do they fare under this analysis? The first three criteria seem clear. There can be no doubt that gays and lesbians have been subjected to a long and often tragic history of discrimination -- even to the point that they were declared to be criminals. They are certainly a political minority, even more so than African Americans and women, and historically they have been particularly powerless politically because they were forced into the closet and were therefore effectively unable to represent their interests in the political process. And there is no reason to believe that gays and lesbians are any less able to function well in society than anyone else -- even to the point that they are now permitted to serve openly in the military.
The only criteria on which there is any question is the fourth, but there is a general consensus today that one's sexual orientation is not a matter of choice. Although there are those who dispute this proposition, the great weight of the evidence cuts the other way. If you are a heterosexual, imagine if you suddenly had to lead your life as a homosexual. All of your instincts would cut strongly in the opposite direction. You might be able to force yourself to engage in sex with people of the same sex, but it would seem wholly unnatural and, more importantly, you would continue (secretly) to be attracted to persons of the opposite sex, even if you could no longer legally act on those attractions. This is pretty much what sexual orientation means, and in its deepest sense the orientation itself seems to be beyond one's own control. One can (perhaps) change one's conduct, but not one's orientation.
Thus, like laws that discriminate against African Americans, ethnic minorities and women, laws that discriminate against gays and lesbians must be tested by heightened scrutiny under the Equal Protection Clause. And, as a practical matter, tested by that standard, it is difficult to think of any interest furthered by the Defense of Marriage Act that would enable that misguided law to pass constitutional muster.
The Equal Protection Clause of the Fourteenth Amendment, which provides that no state shall deny any person "the equal protection of the laws," is the relevant constitutional text. But what does it mean?
A simple interpretation might suggest that the government may never treat people differently. But that is an implausible understanding of the text. All laws treat people differently. Speed limit laws treat people who drive 75 miles per hour differently than those who drive 45 miles per hour. People who have gone to medical school can practice medicine; others cannot. Citizens can vote; aliens cannot. In-state college students pay a lower tuition than out-of-state college students. People over 65 receive certain benefits that are not available to people under 65. And so on.
Surely, the Equal Protection Clause cannot mean that all such laws are unconstitutional. Recognizing this, the Supreme Court has held that most laws that treat some people differently from others are constitutional if the difference in treatment rationally furthers a legitimate government interest. As illustrated by the examples noted above, almost all laws pass this test.
But this does not exhaust the meaning of the Equal Protection Clause. The primary goal of the Clause, which was enacted in the wake of the Civil War, was to prohibit laws that discriminate against African-Americans. To effectuate that purpose, the Supreme Court has held that laws that discriminate against African Americans violate the Equal Protection Clause unless they pass "heightened scrutiny" -- that is, unless the discrimination is necessary to further an important government interest.
But is heightened scrutiny limited only to laws that discriminate against African Americans? That would be odd, because the text says nothing about limiting its core protection to African Americans. Rather, the text is open-ended, and it is therefore reasonable to assume that discrimination against African Americans was seen not as a singular problem, but as a paradigmatic one. That is, it is the paradigm of a certain type of discrimination that is especially problematic under the Equal Protection Clause.
Applying this understanding, the Supreme Court has concluded that the proper application of the Clause requires the use of heightened scrutiny to test the constitutionality of laws that discriminate against African-Americans or that discriminate against other groups in society that are similar to African Americans for purposes of the Equal Protection Clause.
What, though, does it mean to be "similar to African Americans for purposes of the Equal Protection Clause"? The Supreme Court has looked to several factors. First, it considers whether the group has been subjected to a history of discrimination. This is relevant both because such a history suggests that there may be prejudices at work in society that can taint the fairness of the political process, and because it is particularly unfair to heap additional burdens on groups that have been systematically discriminated against in the past.
Second, the Court considers whether the group can effectively protect itself in the political process. If a group does not have that ability, then it is especially vulnerable to the pernicious effects of prejudice and intolerance.
Third, the Court considers whether the group is objectively different in some meaningful way that would logically justify treating its members differently than others. For example, it is sensible to treat people born with severe learning disabilities differently in some ways than others, but it is not sensible to assume that race is relevant to an individual's capacity to function fully in society.
Finally, the Court considers whether the group's status is immutable. That is, African Americans cannot change their race. Therefore, laws that discriminate against African Americans are particularly unjust, because it is unfair to disadvantage people for characteristics that are largely beyond their control.
Considering all these factors, the Supreme Court has concluded, for example, that laws that discriminate against ethnic minorities and women are sufficiently similar to laws that discriminate against African Americans to justify testing them by heightened scrutiny.
What, though, of gays and lesbian? How do they fare under this analysis? The first three criteria seem clear. There can be no doubt that gays and lesbians have been subjected to a long and often tragic history of discrimination -- even to the point that they were declared to be criminals. They are certainly a political minority, even more so than African Americans and women, and historically they have been particularly powerless politically because they were forced into the closet and were therefore effectively unable to represent their interests in the political process. And there is no reason to believe that gays and lesbians are any less able to function well in society than anyone else -- even to the point that they are now permitted to serve openly in the military.
The only criteria on which there is any question is the fourth, but there is a general consensus today that one's sexual orientation is not a matter of choice. Although there are those who dispute this proposition, the great weight of the evidence cuts the other way. If you are a heterosexual, imagine if you suddenly had to lead your life as a homosexual. All of your instincts would cut strongly in the opposite direction. You might be able to force yourself to engage in sex with people of the same sex, but it would seem wholly unnatural and, more importantly, you would continue (secretly) to be attracted to persons of the opposite sex, even if you could no longer legally act on those attractions. This is pretty much what sexual orientation means, and in its deepest sense the orientation itself seems to be beyond one's own control. One can (perhaps) change one's conduct, but not one's orientation.
Thus, like laws that discriminate against African Americans, ethnic minorities and women, laws that discriminate against gays and lesbians must be tested by heightened scrutiny under the Equal Protection Clause. And, as a practical matter, tested by that standard, it is difficult to think of any interest furthered by the Defense of Marriage Act that would enable that misguided law to pass constitutional muster.
January 4, 2011
WikiLeaks and the First Amendment
The so-called SHIELD Act, which has been introduced in both Houses of Congress, would amend the Espionage Act of 1917 to make it a crime for any person knowingly and willfully to disseminate, in any manner prejudicial to the safety or interest of the United States," any classified information... concerning the human intelligence activities of the United States or... concerning the identity of a classified source or informant" who is working with the intelligence community of the United States.
Although this Act may well be constitutional as applied to a government employee who unlawfully "leaks" such material to persons who are unauthorized to receive it, it is plainly unconstitutional as applied to other individuals or organizations who might publish or otherwise disseminate the information after it has been leaked. With respect to such other speakers, the Act violates the First Amendment unless, at the very least, it is expressly limited to situations in which the dissemination of the specific classified information at issue poses a clear and present danger of grave harm to the nation.
The clear and present danger standard, in varying forms, has been a central element of our First Amendment jurisprudence ever since Justice Oliver Wendell Holmes first enunciated it in his 1919 opinion in Schenk v. United States. In the 90 years since Schenck, the precise meaning of "clear and present danger" has evolved, but the principle that animates the standard was stated eloquently by Justice Louis D. Brandeis in his brilliant 1927 concurring opinion in Whitney v. California:
This principle is especially powerful in the context of government efforts to suppress speech concerning the activities of the government itself, for as James Madison observed, "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both." As Madison warned, if citizens do not know what their own government is doing, then they are hardly in a position to question its judgments or to hold their elected representatives accountable. Government secrecy, although sometimes surely necessary, can also pose a direct threat to the very idea of self-governance.
Nonetheless, the First Amendment does not compel government transparency. It leaves the government extraordinary autonomy to protect its own secrets. It does not accord anyone the right to have the government disclose information about its actions or policies and it cedes to the government considerable authority to restrict the speech of its own employees. What it does not do, however, is leave the government free to suppress the free speech of others when it has failed itself to keep its own secrets. At that point, the First Amendment kicks in with full force, and, as Brandeis explained, only an emergency can justify suppression.
We might think of this like the attorney-client privilege. The client is free to keep matters secret by disclosing them to no one. He is also free to disclose certain matters to his attorney, who is under a legal obligation to respect the confidentiality of her client's disclosures. In this sense, the attorney is like the government employee. If the attorney violates the privilege by revealing the client's confidences to a reporter, the attorney can be punished, but the newspaper cannot constitutionally be punished for disseminating the information.
Now, some may wonder whether it makes sense to give the government so little authority to punish the dissemination of unlawfully leaked information. But there are very good reasons for insisting on a showing of clear and present danger before the government can punish speech in this context.
First, the mere fact that the dissemination of such information might, in the words of the proposed SHIELD Act, "in any manner prejudice the interests of the United States," does not in any way mean that that harm outweighs the benefit of publication. In many circumstances, such information may be extremely valuable to public understanding.
Second, a case-by-case balancing of harm against benefit would be unwieldy, unpredictable, and impracticable. Clear rules are essential in the realm of free speech, and that is one reason why we grant the government so much authority to restrict the speech of its own employees.
Third, the reasons why government officials want secrecy are many and varied. They range from the truly compelling to the patently illegitimate. Human nature being what it is, public officials who want secrecy for questionable reasons are often tempted to "justify" their demand for secrecy by putting forth exaggerated, and even disingenuous, justifications. The clear and present danger standard requires the government to clear a high bar to restrict speech, in part to avoid squabbles about the "real" government interest.
Fourth, as we have learned from our own history, there are great pressures that lead both government officials and the public to overstate the potential harm of publication in times of national anxiety. A strict clear and present danger standard serves as a barrier to protect us against this danger.
And finally, a central principle of the First Amendment is that the suppression of public speech must be the government's last rather than its first resort in addressing a potential problem. If there are other means by which government can prevent or reduce the danger, it must exhaust those other means before it can suppress the freedom of speech.
In the secrecy situation, the most obvious way for government to prevent the danger is by ensuring that information that must be kept secret is not leaked in the first place. Indeed, the Supreme Court made this very point quite clearly in its 2001 decision in Bartnicki v. Vopper, in which the Court held that when an individual receives information "from a source who has obtained it unlawfully," that individual may not be punished for publicly disseminating the information "absent a need of the highest order."
The Court explained that if "the sanctions that presently attach to [the underlying criminal act] do not provide sufficient deterrence," then "perhaps those sanctions should be made more severe," but "it would be quite remarkable to hold" that an individual can constitutionally can be punished merely for disseminating information because the government failed to "deter conduct by a non-law-abiding third party."
This may seem a disorderly situation, but the Court has come to a sound solution. If we grant the government too much power to punish those who disseminate information, then we risk too great a sacrifice of public deliberation; if we grant the government too little power to control confidentiality "at the source," then we risk too great a sacrifice of secrecy.
The solution is thus to reconcile the irreconcilable values of secrecy and accountability by guaranteeing both a strong authority of the government to prohibit leaks and an expansive right of others to disseminate information to the public.
The bottom line is this: The proposed SHIELD Act is plainly unconstitutional. At the very least, it must limit its prohibition to those circumstances in which the individual who publicly disseminates classified information knew that the dissemination would create a clear and present danger of grave harm to our nation or its people.
A version of this was published in the New York Times on January 4, 2011 under the title A Clear Danger to Free Speech.
Although this Act may well be constitutional as applied to a government employee who unlawfully "leaks" such material to persons who are unauthorized to receive it, it is plainly unconstitutional as applied to other individuals or organizations who might publish or otherwise disseminate the information after it has been leaked. With respect to such other speakers, the Act violates the First Amendment unless, at the very least, it is expressly limited to situations in which the dissemination of the specific classified information at issue poses a clear and present danger of grave harm to the nation.
The clear and present danger standard, in varying forms, has been a central element of our First Amendment jurisprudence ever since Justice Oliver Wendell Holmes first enunciated it in his 1919 opinion in Schenk v. United States. In the 90 years since Schenck, the precise meaning of "clear and present danger" has evolved, but the principle that animates the standard was stated eloquently by Justice Louis D. Brandeis in his brilliant 1927 concurring opinion in Whitney v. California:
Those who won our independence... did not exalt order at the cost of liberty... [They understood that] only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such... is the command of the Constitution. It is, therefore, always open to... challenge a law abridging free speech . . . by showing that there was no emergency justifying it.
This principle is especially powerful in the context of government efforts to suppress speech concerning the activities of the government itself, for as James Madison observed, "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both." As Madison warned, if citizens do not know what their own government is doing, then they are hardly in a position to question its judgments or to hold their elected representatives accountable. Government secrecy, although sometimes surely necessary, can also pose a direct threat to the very idea of self-governance.
Nonetheless, the First Amendment does not compel government transparency. It leaves the government extraordinary autonomy to protect its own secrets. It does not accord anyone the right to have the government disclose information about its actions or policies and it cedes to the government considerable authority to restrict the speech of its own employees. What it does not do, however, is leave the government free to suppress the free speech of others when it has failed itself to keep its own secrets. At that point, the First Amendment kicks in with full force, and, as Brandeis explained, only an emergency can justify suppression.
We might think of this like the attorney-client privilege. The client is free to keep matters secret by disclosing them to no one. He is also free to disclose certain matters to his attorney, who is under a legal obligation to respect the confidentiality of her client's disclosures. In this sense, the attorney is like the government employee. If the attorney violates the privilege by revealing the client's confidences to a reporter, the attorney can be punished, but the newspaper cannot constitutionally be punished for disseminating the information.
Now, some may wonder whether it makes sense to give the government so little authority to punish the dissemination of unlawfully leaked information. But there are very good reasons for insisting on a showing of clear and present danger before the government can punish speech in this context.
First, the mere fact that the dissemination of such information might, in the words of the proposed SHIELD Act, "in any manner prejudice the interests of the United States," does not in any way mean that that harm outweighs the benefit of publication. In many circumstances, such information may be extremely valuable to public understanding.
Second, a case-by-case balancing of harm against benefit would be unwieldy, unpredictable, and impracticable. Clear rules are essential in the realm of free speech, and that is one reason why we grant the government so much authority to restrict the speech of its own employees.
Third, the reasons why government officials want secrecy are many and varied. They range from the truly compelling to the patently illegitimate. Human nature being what it is, public officials who want secrecy for questionable reasons are often tempted to "justify" their demand for secrecy by putting forth exaggerated, and even disingenuous, justifications. The clear and present danger standard requires the government to clear a high bar to restrict speech, in part to avoid squabbles about the "real" government interest.
Fourth, as we have learned from our own history, there are great pressures that lead both government officials and the public to overstate the potential harm of publication in times of national anxiety. A strict clear and present danger standard serves as a barrier to protect us against this danger.
And finally, a central principle of the First Amendment is that the suppression of public speech must be the government's last rather than its first resort in addressing a potential problem. If there are other means by which government can prevent or reduce the danger, it must exhaust those other means before it can suppress the freedom of speech.
In the secrecy situation, the most obvious way for government to prevent the danger is by ensuring that information that must be kept secret is not leaked in the first place. Indeed, the Supreme Court made this very point quite clearly in its 2001 decision in Bartnicki v. Vopper, in which the Court held that when an individual receives information "from a source who has obtained it unlawfully," that individual may not be punished for publicly disseminating the information "absent a need of the highest order."
The Court explained that if "the sanctions that presently attach to [the underlying criminal act] do not provide sufficient deterrence," then "perhaps those sanctions should be made more severe," but "it would be quite remarkable to hold" that an individual can constitutionally can be punished merely for disseminating information because the government failed to "deter conduct by a non-law-abiding third party."
This may seem a disorderly situation, but the Court has come to a sound solution. If we grant the government too much power to punish those who disseminate information, then we risk too great a sacrifice of public deliberation; if we grant the government too little power to control confidentiality "at the source," then we risk too great a sacrifice of secrecy.
The solution is thus to reconcile the irreconcilable values of secrecy and accountability by guaranteeing both a strong authority of the government to prohibit leaks and an expansive right of others to disseminate information to the public.
The bottom line is this: The proposed SHIELD Act is plainly unconstitutional. At the very least, it must limit its prohibition to those circumstances in which the individual who publicly disseminates classified information knew that the dissemination would create a clear and present danger of grave harm to our nation or its people.
A version of this was published in the New York Times on January 4, 2011 under the title A Clear Danger to Free Speech.
December 26, 2010
America's Promise: Reflections on DADT
The most ringing phrase in all of American history is Thomas Jefferson's bold statement in the Declaration of Independence that "all men are created equal." Translating that aspiration into law has been a challenge. At the time the Constitution was adopted, most Americans did not have equal rights under the law. But over the course of 220 years, we have struggled, in fits and starts, to make that aspiration a reality.
America's most profound achievement in this quest was of course the abolition of African slavery, which was attained only after a bitter and bloody Civil War that cost the lives of more than 600,000 Americans. Another fundamental milestone was the ratification of the 19th Amendment in 1920, which for the first time guaranteed women the right to vote.
But despite these and other achievements, at the end of World War II the United States was still basically a white, male, Protestant society. Every president in American history had been a white male Protestant. Every justice of the Supreme Court had been a white male. The United States Senate in 1945 was made up of 98 white males. Only one woman (Frances Perkins) and no African-American, Hispanic-American or Asian-American had ever served in a president's cabinet.
In 1945, racial segregation was rampant, women were once again (after the War) relegated to the kitchen, Jews often felt the need to change their names (an early version of "Don't Ask, Don't Tell") in an effort to avoid religious discrimination, Japanese-Americans were struggling to put their devastated lives back together after finally being released from American internment camps, and gays were buried so deep in the closet that most people were certain they had never met one.
In the 65 years since the end of World War II, however, we have made significant strides. Here is an illustrative timeline of our progress:
1948: President Harry Truman orders the desegregation of the armed forces.
1954: The Supreme Court rules in Brown v. Board of Education that racial segregation is "inherently" unequal and therefore unconstitutional.
1959: Hiram Fong is elected as the nation's first Asian-American senator.
1960: John F. Kennedy is elected as the nation's first Catholic president.
1964: Congress enacts the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race, religion or gender.
1966: Lyndon Johnson appoints Robert Weaver as the nation's first African-American cabinet secretary.
1967: The Supreme Court rules in Loving v. Virginia that laws prohibiting interracial marriage are unconstitutional.
1967: Lyndon Johnson appoints Thurgood Marshall as the nation's first African-American Supreme Court justice.
1968: Congress enacts the Civil Rights Act of 1968, which prohibits racial and religious discrimination in housing.
1970: The Supreme Court holds for the first time a law that discriminating against women violates the Equal Protection Clause.
1973: Richard Nixon appoints Henry Kissinger as the nation's first Jewish secretary of state.
1981: Ronald Reagan appoints Sandra Day O'Connor as the nation's first woman Supreme Court justice.
1982: Gerry Studds is elected the nation's first openly-gay member of Congress.
1984: The Democrats nominate Geraldine Ferraro as the nation's first woman vice-presidential candidate of a major political party.
1988: George H.W. Bush appoints Lauro F. Cavazos as the nation's first Hispanic-American cabinet member.
1990: Congress enacts the Americans with Disabilities Act, which prohibits discrimination on the basis of disability.
1993: The Hawaii Supreme Court rules that same-sex couples have a constitutional right to marry.
1997: Bill Clinton appoints Madeline Albright as the nation's first woman secretary of state.
2000: Bill Clinton appoints Norman Mineta as the nation's first Asian-American cabinet member.
2000: The Democrats nominate Joseph Lieberman as the nation's first Jewish vice-presidential candidate of a major political party.
2001: George W. Bush appoints Colin Powell as the nation's first African-American secretary of state.
2003: The Supreme Court rules in Lawrence v. Texas that the government cannot constitutionally punish gays and lesbians for engaging in same-sex sex.
2007: Keith Ellison is elected as the nation's first Muslim member of Congress.
2008: Barack Obama is elected as the nation's first African-American president.
2009: Barack Obama appoints Sonia Sotomayor as the nation's first Hispanic-American Supreme Court justice.
2010: Congress enacts legislation allowing gays and lesbians to serve openly in the armed forces.
This is an admirable record of progress, and we should be proud as a nation of how far we have come. This is not to say, however, that there have not been setbacks. The defeat of the Equal Rights Amendment and the passage of the Defense of Marriage Act are notable examples. But despite the regressive forces of intolerance, ignorance, and bigotry, Americans have a way of returning to what Lincoln described as "the better angels of our nature."
None of this comes easy. Almost every step forward has been the result of a small but determined group of farsighted Americans who see injustice when others do not, and who then work tirelessly and often courageously to help others see the light. If we do not lose heart and continue to push forward despite the forces of "tradition," fear and prejudice, then we may someday see a woman president, an openly-gay Supreme Court justice, and a Muslim secretary of state. This is, after all, America's promise.
America's most profound achievement in this quest was of course the abolition of African slavery, which was attained only after a bitter and bloody Civil War that cost the lives of more than 600,000 Americans. Another fundamental milestone was the ratification of the 19th Amendment in 1920, which for the first time guaranteed women the right to vote.
But despite these and other achievements, at the end of World War II the United States was still basically a white, male, Protestant society. Every president in American history had been a white male Protestant. Every justice of the Supreme Court had been a white male. The United States Senate in 1945 was made up of 98 white males. Only one woman (Frances Perkins) and no African-American, Hispanic-American or Asian-American had ever served in a president's cabinet.
In 1945, racial segregation was rampant, women were once again (after the War) relegated to the kitchen, Jews often felt the need to change their names (an early version of "Don't Ask, Don't Tell") in an effort to avoid religious discrimination, Japanese-Americans were struggling to put their devastated lives back together after finally being released from American internment camps, and gays were buried so deep in the closet that most people were certain they had never met one.
In the 65 years since the end of World War II, however, we have made significant strides. Here is an illustrative timeline of our progress:
1948: President Harry Truman orders the desegregation of the armed forces.
1954: The Supreme Court rules in Brown v. Board of Education that racial segregation is "inherently" unequal and therefore unconstitutional.
1959: Hiram Fong is elected as the nation's first Asian-American senator.
1960: John F. Kennedy is elected as the nation's first Catholic president.
1964: Congress enacts the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race, religion or gender.
1966: Lyndon Johnson appoints Robert Weaver as the nation's first African-American cabinet secretary.
1967: The Supreme Court rules in Loving v. Virginia that laws prohibiting interracial marriage are unconstitutional.
1967: Lyndon Johnson appoints Thurgood Marshall as the nation's first African-American Supreme Court justice.
1968: Congress enacts the Civil Rights Act of 1968, which prohibits racial and religious discrimination in housing.
1970: The Supreme Court holds for the first time a law that discriminating against women violates the Equal Protection Clause.
1973: Richard Nixon appoints Henry Kissinger as the nation's first Jewish secretary of state.
1981: Ronald Reagan appoints Sandra Day O'Connor as the nation's first woman Supreme Court justice.
1982: Gerry Studds is elected the nation's first openly-gay member of Congress.
1984: The Democrats nominate Geraldine Ferraro as the nation's first woman vice-presidential candidate of a major political party.
1988: George H.W. Bush appoints Lauro F. Cavazos as the nation's first Hispanic-American cabinet member.
1990: Congress enacts the Americans with Disabilities Act, which prohibits discrimination on the basis of disability.
1993: The Hawaii Supreme Court rules that same-sex couples have a constitutional right to marry.
1997: Bill Clinton appoints Madeline Albright as the nation's first woman secretary of state.
2000: Bill Clinton appoints Norman Mineta as the nation's first Asian-American cabinet member.
2000: The Democrats nominate Joseph Lieberman as the nation's first Jewish vice-presidential candidate of a major political party.
2001: George W. Bush appoints Colin Powell as the nation's first African-American secretary of state.
2003: The Supreme Court rules in Lawrence v. Texas that the government cannot constitutionally punish gays and lesbians for engaging in same-sex sex.
2007: Keith Ellison is elected as the nation's first Muslim member of Congress.
2008: Barack Obama is elected as the nation's first African-American president.
2009: Barack Obama appoints Sonia Sotomayor as the nation's first Hispanic-American Supreme Court justice.
2010: Congress enacts legislation allowing gays and lesbians to serve openly in the armed forces.
This is an admirable record of progress, and we should be proud as a nation of how far we have come. This is not to say, however, that there have not been setbacks. The defeat of the Equal Rights Amendment and the passage of the Defense of Marriage Act are notable examples. But despite the regressive forces of intolerance, ignorance, and bigotry, Americans have a way of returning to what Lincoln described as "the better angels of our nature."
None of this comes easy. Almost every step forward has been the result of a small but determined group of farsighted Americans who see injustice when others do not, and who then work tirelessly and often courageously to help others see the light. If we do not lose heart and continue to push forward despite the forces of "tradition," fear and prejudice, then we may someday see a woman president, an openly-gay Supreme Court justice, and a Muslim secretary of state. This is, after all, America's promise.
November 30, 2010
DADT: A Man and His Private Parts
This is an exchange I had a few days ago with a good friend (pseudonym "Jones" ) about my post last week about DADT (DADT and the Tyranny of the Minority):
Jones: Having spent four years in the Navy, I do believe there were gay sailors on board the aircraft carrier I was on because of the number of sailors assigned. However, not really knowing, I was not uncomfortable taking communal showers. This is a case where what you don't know won't hurt you. Therefore, I am against letting gay persons openly serve -- unless showering can be done in a more private way. I have nothing against gay people. I don't happen to have any gay friends but I would not hesitate to welcome a gay person as a friend, just as long as I don't have to shower with him.
Stone: Why would you object to showering with him? What do you think would happen?
Jones: I would feel my private parts are there for him to view. When dressed, I have no objection because those parts, which are part of his sexual preference, are hidden from view. As I like to look at women, and women look at men, just to assess their beauty, the feeling would change if there were no clothes involved. I had this experience when in Rome when I was in the service. They had communal showers with individual stalls in the hotel, but your clothes were on a hook outside the shower where everyone could see each other. And yes, I had those urges but did not act on them, even though I was not married at the time. I think that gay men have the same feelings when they see a man. And, with clothes removed, this would only enhance their feelings and that would make me very uncomfortable if I knew the person next to me was gay. Am I a prude? I don't think so, but I know my own feelings and what I believe are the feelings of other men and women. I think it's just part of human nature.
Stone: Undoubtedly that's true -- you would worry that gays could see your privates. But think about what you've said. Because you would worry about gays seeing your privates, you're prepared to discriminate against them and deny them the opportunity to serve their country, even though they've done nothing wrong.
Moreover, when you go into the military you commit to leaving your loved ones for an extended period of time, you commit to training brutally hard and living in communal barracks and learning how to kill other people, you commit to being in combat if necessary, in which you might have to live in horrid conditions, kill and main other human beings (some perhaps innocent of any wrongdoing), and risk being maimed or killed yourself. But you don't want a gay man to see you privates? This makes sense to you?
And beyond that, what do you think happens today in high school locker rooms, college dorms, and athletic clubs? In all of these places, and many others besides, straight men have their private parts seen by gay men. I have never once heard of anyone making a fuss over this, even today when many gays are "out" and others know they are gay. I have never heard of anyone quitting the football team or moving out of the dorms or giving up his membership in an athletic club because he knows a gay man has seen his privates.
The plain and simple fact is that, when all is said and done, this is a non-issue that people, without reflection, have been conditioned to think is a big deal. If you found yourself naked someday in a locker room or a doctor's office, would you really give a damn for more than a moment or two if a gay man saw your privates?
Jones: Having spent four years in the Navy, I do believe there were gay sailors on board the aircraft carrier I was on because of the number of sailors assigned. However, not really knowing, I was not uncomfortable taking communal showers. This is a case where what you don't know won't hurt you. Therefore, I am against letting gay persons openly serve -- unless showering can be done in a more private way. I have nothing against gay people. I don't happen to have any gay friends but I would not hesitate to welcome a gay person as a friend, just as long as I don't have to shower with him.
Stone: Why would you object to showering with him? What do you think would happen?
Jones: I would feel my private parts are there for him to view. When dressed, I have no objection because those parts, which are part of his sexual preference, are hidden from view. As I like to look at women, and women look at men, just to assess their beauty, the feeling would change if there were no clothes involved. I had this experience when in Rome when I was in the service. They had communal showers with individual stalls in the hotel, but your clothes were on a hook outside the shower where everyone could see each other. And yes, I had those urges but did not act on them, even though I was not married at the time. I think that gay men have the same feelings when they see a man. And, with clothes removed, this would only enhance their feelings and that would make me very uncomfortable if I knew the person next to me was gay. Am I a prude? I don't think so, but I know my own feelings and what I believe are the feelings of other men and women. I think it's just part of human nature.
Stone: Undoubtedly that's true -- you would worry that gays could see your privates. But think about what you've said. Because you would worry about gays seeing your privates, you're prepared to discriminate against them and deny them the opportunity to serve their country, even though they've done nothing wrong.
Moreover, when you go into the military you commit to leaving your loved ones for an extended period of time, you commit to training brutally hard and living in communal barracks and learning how to kill other people, you commit to being in combat if necessary, in which you might have to live in horrid conditions, kill and main other human beings (some perhaps innocent of any wrongdoing), and risk being maimed or killed yourself. But you don't want a gay man to see you privates? This makes sense to you?
And beyond that, what do you think happens today in high school locker rooms, college dorms, and athletic clubs? In all of these places, and many others besides, straight men have their private parts seen by gay men. I have never once heard of anyone making a fuss over this, even today when many gays are "out" and others know they are gay. I have never heard of anyone quitting the football team or moving out of the dorms or giving up his membership in an athletic club because he knows a gay man has seen his privates.
The plain and simple fact is that, when all is said and done, this is a non-issue that people, without reflection, have been conditioned to think is a big deal. If you found yourself naked someday in a locker room or a doctor's office, would you really give a damn for more than a moment or two if a gay man saw your privates?
November 23, 2010
DADT and the Tyranny of the Minority: The Role of Courts
The standard theme of democracy is that "the majority rules." In our democracy, this is usually what happens. But not always. Consider the issue of "don't ask, don't tell." According to all recent public opinion polls, the vast majority of Americans have come around to the view that gays and lesbians should be allowed to serve openly in the military and that the current policy is discriminatory, unjust and counter-productive.
Indeed, in a recent CNN poll, 72 percent of all Americans favored repealing "don't ask, don't tell," and only 23 percent favored the continuation of the policy. Moreover, a similar Gallup poll reports that every major population group favors the repeal of "don't ask, don't tell." Repeal is supported not only by liberals, Democrats, and young people, but also by Republicans (58 percent), conservatives (58 percent), people over age 65 (60 percent), and even the usually most conservative group of all -- weekly churchgoers (60 percent). It is difficult, especially in these polarized times, to find so broad a consensus for any public policy.
Nonetheless, the Republicans in the Senate, who claim now to "listen to the voice of the people," are likely overwhelmingly, perhaps unanimously, to oppose the repeal of "don't ask, don't tell" and to try fervently to keep the issue from even coming to a vote. What's going on here? Are the Republicans like a bunch of lemmings ready to throw themselves over a cliff? What do they know that we don't know?
They know two things, neither of which has anything to do with good government, sound public policy, or simple justice. They know, first, that a majority of those who favor the repeal of "don't ask, don't tell" are inclined to vote Democratic (82 percent of Democrats support repeal). They apparently feel no responsibility to take their views into account. O.K., politics is politics. But, as I've noted, 58 percent of Republicans and 58 percent of conservatives also favor repeal of "don't ask, don't tell." Don't the Senate Republicans care about them? The answer, apparently, is "no." They care only about the 23 percent who want to keep "don't ask, don't tell" in place.
Why would they do this if a majority of even their own supporters opposes "don't ask, don't tell"? The answer is simple, and this is the second thing they know: the supporters of "don't ask, don't tell" are much more vehement about the righteousness of their position than are the opponents. Thus, the 23 percent will likely work much more fervently to unseat them if they vote to end "don't ask, don't tell" than the 72 percent will work to unseat them if they vote to keep "don't ask, don't tell." As a result, the anger of the 23 percent matters much more to the political fortunes of the Republican senators than the unhappiness of the 72 percent, even though the latter includes a substantial majority of Republicans.
To make matters worse, although there are only 41 Republican senators, as compared to 59 Democrats (and Independents), these 41 senators, representing the views of only 23 percent of the American people, can use the filibuster to thwart the will of 59 senators who represent the views of 72 percent of the American people. (To compound the problem still further, the 41 Republican senators were elected by only 37 percent of the American people.)
In this way, a determined minority can manipulate and control the American political system. This is not always a bad thing. Sometimes the majority can be wrong-headed, intolerant, or discriminatory, and in such circumstances it may be quite important for the minority to be able to protect itself in this manner. This problem is especially acute when the majority is attempting to deprive the minority of their fundamental liberties.
This is where the courts enter the picture. Ordinarily, we think of the Constitution as designed in no small part to protect minorities from overbearing and intolerant majorities. The First Amendment, for example, protects political and religious dissenters from persecution by close-minded majorities and the Equal Protection Clause protects racial and other minorities from oppression by bigoted and insensitive majorities. We rely on the courts, which are not accountable to those majorities, to have the independence and backbone to stand up for the rights of the underrepresented, the downtrodden, and the disadvantaged.
In the "don't ask, don't tell" debate, a federal court has held the policy unconstitutional, and that judgment is pending on appeal. If 41 Republicans in the Senate, representing the views of only 23 percent of the American people, use the filibuster or other procedural devices to prevent an overwhelming majority of the American people and their representatives from bringing fairness, equality and common sense to our national policies, then it will fall to the courts to act. As much as we need courts to protect us against the "tyranny of the majority," it is even more essential for them to protect us against the "tyranny of the minority."
Indeed, in a recent CNN poll, 72 percent of all Americans favored repealing "don't ask, don't tell," and only 23 percent favored the continuation of the policy. Moreover, a similar Gallup poll reports that every major population group favors the repeal of "don't ask, don't tell." Repeal is supported not only by liberals, Democrats, and young people, but also by Republicans (58 percent), conservatives (58 percent), people over age 65 (60 percent), and even the usually most conservative group of all -- weekly churchgoers (60 percent). It is difficult, especially in these polarized times, to find so broad a consensus for any public policy.
Nonetheless, the Republicans in the Senate, who claim now to "listen to the voice of the people," are likely overwhelmingly, perhaps unanimously, to oppose the repeal of "don't ask, don't tell" and to try fervently to keep the issue from even coming to a vote. What's going on here? Are the Republicans like a bunch of lemmings ready to throw themselves over a cliff? What do they know that we don't know?
They know two things, neither of which has anything to do with good government, sound public policy, or simple justice. They know, first, that a majority of those who favor the repeal of "don't ask, don't tell" are inclined to vote Democratic (82 percent of Democrats support repeal). They apparently feel no responsibility to take their views into account. O.K., politics is politics. But, as I've noted, 58 percent of Republicans and 58 percent of conservatives also favor repeal of "don't ask, don't tell." Don't the Senate Republicans care about them? The answer, apparently, is "no." They care only about the 23 percent who want to keep "don't ask, don't tell" in place.
Why would they do this if a majority of even their own supporters opposes "don't ask, don't tell"? The answer is simple, and this is the second thing they know: the supporters of "don't ask, don't tell" are much more vehement about the righteousness of their position than are the opponents. Thus, the 23 percent will likely work much more fervently to unseat them if they vote to end "don't ask, don't tell" than the 72 percent will work to unseat them if they vote to keep "don't ask, don't tell." As a result, the anger of the 23 percent matters much more to the political fortunes of the Republican senators than the unhappiness of the 72 percent, even though the latter includes a substantial majority of Republicans.
To make matters worse, although there are only 41 Republican senators, as compared to 59 Democrats (and Independents), these 41 senators, representing the views of only 23 percent of the American people, can use the filibuster to thwart the will of 59 senators who represent the views of 72 percent of the American people. (To compound the problem still further, the 41 Republican senators were elected by only 37 percent of the American people.)
In this way, a determined minority can manipulate and control the American political system. This is not always a bad thing. Sometimes the majority can be wrong-headed, intolerant, or discriminatory, and in such circumstances it may be quite important for the minority to be able to protect itself in this manner. This problem is especially acute when the majority is attempting to deprive the minority of their fundamental liberties.
This is where the courts enter the picture. Ordinarily, we think of the Constitution as designed in no small part to protect minorities from overbearing and intolerant majorities. The First Amendment, for example, protects political and religious dissenters from persecution by close-minded majorities and the Equal Protection Clause protects racial and other minorities from oppression by bigoted and insensitive majorities. We rely on the courts, which are not accountable to those majorities, to have the independence and backbone to stand up for the rights of the underrepresented, the downtrodden, and the disadvantaged.
In the "don't ask, don't tell" debate, a federal court has held the policy unconstitutional, and that judgment is pending on appeal. If 41 Republicans in the Senate, representing the views of only 23 percent of the American people, use the filibuster or other procedural devices to prevent an overwhelming majority of the American people and their representatives from bringing fairness, equality and common sense to our national policies, then it will fall to the courts to act. As much as we need courts to protect us against the "tyranny of the majority," it is even more essential for them to protect us against the "tyranny of the minority."
October 6, 2010
Funerals and Free Speech
The Supreme Court heard argument on Wednesday in the case of Snyder v. Phelps. Fred Phelps is the founder and pastor of the Westboro Baptist Church, a fundamentalist Christian church that contends that God kills soldiers in Iraq and Afghanistan as punishment for America's tolerance of homosexuality. In recent years, the church has gained notoriety for staging protests at the funerals of soldiers in order to draw attention to its message.
Lance Corporal Matthew Snyder was a Marine who was killed on March 3, 2006, in Iraq. His body was returned to the United States, and his family held a funeral for him on March 10, 2006, in Westminster, Maryland. Phelps and members of his congregation picketed the funeral, displaying signs bearing virulently anti-gay slogans. One sign, drawing on LCpl. Snyder's status as a Marine, read "Semper Fi Fags." Another depicted two men engaged in anal intercourse. Phelps's message, apparently drawing on the biblical tale of Sodom, is that as long as the United States tolerates homosexuality Americans will suffer the same fate as the residents of Sodom. (There was no suggestion, by the way, that LCpl. Snyder was gay.)
On June 5, 2006, LCpl. Snyder's father filed a lawsuit against Phelps and the Westboro Baptist Church, alleging, among other things, that the defendants were liable for the intentional infliction of emotional distress. After trial, the jury awarded Mr. Snyder damages of $10.9 million. The trial judge reduced the damage award to $5 million. In 2008, a federal court of appeals held that Phelps's speech was protected by the First Amendment and therefore reversed the judgment below.
The central issue before the Supreme Court is whether the court of appeals was correct in ruling that Phelps' speech was protected by the First Amendment, which prohibits government from making any law "abridging the freedom of speech."
Mr. Snyder's position is straightforward: There is a time and a place for everything. Even if Phelps' offensive and odious speech is otherwise protected by the First Amendment, it is not constitutionally protected in the special circumstances of this case. A funeral is, after all, a solemn occasion at which mourners should be free to grieve in peace, without having to confront such odious and offensive messages. Thus, although Phelps may have a First Amendment right to display his odious and offensive signs on a public street or in a public park, he has no right to do so near a funeral.
As a matter of common sense, this may seem perfectly reasonable. As a matter of First Amendment law, however, it is flat-out wrong, as the court of appeals rightly held. Sometimes common sense misses the forest for the trees.
The central principle of the First Amendment is that government may not treat some ideas differently than others because people may find them odious or offensive. Had Phelps and the members of the Westboro Baptist Church carried signs praising the United States Marines, the Snyder family presumably would not have objected, and even if they had, no jury would have held Phelps liable for intentional infliction of emotional distress. This discrepancy is precisely what the First Amendment forbids.
If this were not so, then an anti-war demonstrator who burns a flag near a Veterans of Foreign Wars meeting, a protester who carries anti-sexual abuse placards in front of a Catholic Church, a civil rights marcher who accuses Southerners of being racist in Selma, Alabama, in the early 1960s, a Westboro Baptist Church member who shouts anti-gay-rights slogans near a rally for marriage equality, and a critic of Phelps who marches near the Westboro Baptist Church with signs attacking the church for being "un-Christian and un-American" could all be held liable for the intentional infliction of emotional distress, depending on the whims, biases, preferences and prejudices of twelve jurors.
This is not to say that government cannot address some of the problems posed by this case. But to do so, government must act neutrally. It cannot treat, and it cannot authorize jurors to treat, one idea as more offensive or more odious than another. It can, however, prohibit noise that might disrupt a funeral, gatherings that might block egress and ingress to a cemetery, and gatherings of people near a cemetery while a funeral is in process -- as long as the rule applies neutrally to all speakers, without regard to the message they wish to convey.
That is why the Supreme Court will hold that the jury verdict in this case violated the First Amendment.
Lance Corporal Matthew Snyder was a Marine who was killed on March 3, 2006, in Iraq. His body was returned to the United States, and his family held a funeral for him on March 10, 2006, in Westminster, Maryland. Phelps and members of his congregation picketed the funeral, displaying signs bearing virulently anti-gay slogans. One sign, drawing on LCpl. Snyder's status as a Marine, read "Semper Fi Fags." Another depicted two men engaged in anal intercourse. Phelps's message, apparently drawing on the biblical tale of Sodom, is that as long as the United States tolerates homosexuality Americans will suffer the same fate as the residents of Sodom. (There was no suggestion, by the way, that LCpl. Snyder was gay.)
On June 5, 2006, LCpl. Snyder's father filed a lawsuit against Phelps and the Westboro Baptist Church, alleging, among other things, that the defendants were liable for the intentional infliction of emotional distress. After trial, the jury awarded Mr. Snyder damages of $10.9 million. The trial judge reduced the damage award to $5 million. In 2008, a federal court of appeals held that Phelps's speech was protected by the First Amendment and therefore reversed the judgment below.
The central issue before the Supreme Court is whether the court of appeals was correct in ruling that Phelps' speech was protected by the First Amendment, which prohibits government from making any law "abridging the freedom of speech."
Mr. Snyder's position is straightforward: There is a time and a place for everything. Even if Phelps' offensive and odious speech is otherwise protected by the First Amendment, it is not constitutionally protected in the special circumstances of this case. A funeral is, after all, a solemn occasion at which mourners should be free to grieve in peace, without having to confront such odious and offensive messages. Thus, although Phelps may have a First Amendment right to display his odious and offensive signs on a public street or in a public park, he has no right to do so near a funeral.
As a matter of common sense, this may seem perfectly reasonable. As a matter of First Amendment law, however, it is flat-out wrong, as the court of appeals rightly held. Sometimes common sense misses the forest for the trees.
The central principle of the First Amendment is that government may not treat some ideas differently than others because people may find them odious or offensive. Had Phelps and the members of the Westboro Baptist Church carried signs praising the United States Marines, the Snyder family presumably would not have objected, and even if they had, no jury would have held Phelps liable for intentional infliction of emotional distress. This discrepancy is precisely what the First Amendment forbids.
If this were not so, then an anti-war demonstrator who burns a flag near a Veterans of Foreign Wars meeting, a protester who carries anti-sexual abuse placards in front of a Catholic Church, a civil rights marcher who accuses Southerners of being racist in Selma, Alabama, in the early 1960s, a Westboro Baptist Church member who shouts anti-gay-rights slogans near a rally for marriage equality, and a critic of Phelps who marches near the Westboro Baptist Church with signs attacking the church for being "un-Christian and un-American" could all be held liable for the intentional infliction of emotional distress, depending on the whims, biases, preferences and prejudices of twelve jurors.
This is not to say that government cannot address some of the problems posed by this case. But to do so, government must act neutrally. It cannot treat, and it cannot authorize jurors to treat, one idea as more offensive or more odious than another. It can, however, prohibit noise that might disrupt a funeral, gatherings that might block egress and ingress to a cemetery, and gatherings of people near a cemetery while a funeral is in process -- as long as the rule applies neutrally to all speakers, without regard to the message they wish to convey.
That is why the Supreme Court will hold that the jury verdict in this case violated the First Amendment.
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