Geoffrey R. Stone's Blog, page 4

Dump the Trump

The American news media love Donald Trump. He gets them ratings. If they show him waving his arms and ranting, they get viewers. They therefore pretend that Trump is a serious candidate because putting him on the airwaves making moronic and offensive comments is entertaining. But presidential elections are not Reality TV. This is self-governance. And just as money is now making a mockery of American democracy, the news media's obsession with ratings is now making a mockery of American politics.



So, here's the question. Is Donald Trump is serious candidate for president? The obvious answer is, or appears to be, "yes." After all, he leads all of the other Republican candidates in the polls. So he must be a serious candidate for president. But let's take a closer look.



Donald Trump leads all Republican candidates with roughly 22 percent of Republicans supporting him. But only 25 percent of Americans now identify as Republicans, the lowest number, by the way, in more than a quarter-of-a-century. So what does that tell us? Well, Trump is the favorite of 22 percent of 25 percent of all Americans. Let's see, that comes out to 5.5 percent of all Americans. That means that just over 1 in 20 Americans supports Donald Trump for president.



That's not really very impressive. For the sake of comparison, it's worth noting that while 5.5 percent of Americans believe Trump should be president, 18 percent of Americans believe the sun revolves around the earth, 23 percent of Americans believe they've seen a ghost, 10 percent of Americans believe that President Obama is a secret Muslim, 22 percent of Americans believe that President George W. Bush knew in advance about the 9/11 attacks and 10 percent of Americans believe that the moon landing was faked. Gee, that 5.5 percent number doesn't look so good now, does it?



But, of course, it's not that simple. After all, Donald Trump is leading the Republican field of seventeen competitors. That's pretty impressive. But keep in mind that the other sixteen candidates are dividing up what we might reasonably think to be the "sane" part of the Republican Party. Imagine if there were seventeen candidates and sixteen of them believed that the earth revolves around the sun and only one of them maintained that the sun revolves around the earth. In a poll, the sixteen would divide the 82 percent of the voters who believed the earth revolves around the sun (an average of 5 percent each) and the idiot would get 18 percent. That's pretty much what's happening now in the Republican Party. But no one in the media wants to speak the truth, because that would turn politics into politics instead of a circus.



Another way to measure this is in poll match ups between the Republican candidates and Hillary Clinton. In head-to-head races, Clinton defeats every one of them, but who has the absolutely worst result in such a context -- the Donald, who loses by an astonishing 16 percent, or 6 percent worse than every other Republican candidate.



So, really, it's time to get serious. Trump is the guy who thinks the sun revolves around the earth. Let's treat him that way and move on to something serious -- like American democracy.

The Same-Sex Marriage Decision: What to Make of the Dissenters

A central complaint of the four justices who dissented from the Supreme Court's decision in Obergefell v. Hodges, which recognized a constitutional right of same-sex couples to marry, was their repeated assertion that the five justices in the majority were unabashedly -- and illegitimately -- distorting the "true" meaning of the Constitution to suit their own personal values and beliefs.



Chief Justice Roberts, for example, charged that, "for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening." The justices in the majority, he declared, have "enacted their own vision of marriage as a matter of constitutional law." This, he insisted, "is an act of will, not legal judgment," because "the right it announces has no basis in the Constitution." "Those who founded our country," he charged:

Would not recognize the majority's conception of the judicial role. They would never have imagined yielding the right to govern themselves on a question of social policy to unaccountable and unelected judges.

Similarly, Justice Scalia sneered that "today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court." The Court's decision, he maintained, robbed "the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves." The Court's decision, he fumed, was nothing less than "a naked judicial claim to . . . power; a claim fundamentally at odds with our system of government." Indeed, "a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy."



Justices Thomas and Alito chimed in with similar denunciations of the Court's judgment, with Alito charging, for example, that "today's decision usurps the constitutional right of the people."



Assertions of this sort might be warranted if they were made by justices who actually believed in the principle of judicial restraint. There have, in fact, been justices in our history -- Justices Felix Frankfurter and John Marshall Harlan are examples -- who sincerely believed in judicial restraint as a matter of principle. In their view, justices of the Supreme Court should be modest in their interpretation of the Constitution, always giving the benefit of the doubt to the elected branches of government. Under this approach, justices should defer to the judgments of the elected branches -- unless their judgments clearly and unequivocally violated the Constitution.



If justices like Frankfurter and Harlan had written the words quoted above, one would at least have had to respect the sincerity of their commitment to the principle of judicial restraint. But Chief Justice Roberts and Justices Scalia, Thomas and Alito are in no way adherents to this principle. To the contrary, in decision after decision they exercise an often fierce form of judicial activism, a form of activism that is completely incompatible with their self-righteous paeans to judicial restraint in Obergefell.



These four justices, for example, have embraced and defended aggressive and wholly unrestrained interpretations of the Constitution in order to hold unconstitutional laws regulating campaign expenditures and contributions; they have joined in aggressive and wholly unrestrained interpretations of the Constitution in order to hold unconstitutional laws permitting affirmative action programs; they have joined in aggressive and wholly unrestrained interpretations of the Constitution in order to hold unconstitutional laws regulating the availability of guns in our society; they have joined in aggressive and wholly unrestrained interpretations of the Constitution in order to hold unconstitutional laws protecting the voting rights of racial minorities; and they have joined in aggressive and wholly unrestrained interpretations of the Constitution in order to hold unconstitutional laws designed to achieve racial integration in society.



In short, these four justices are not in any principled way committed to the principle judicial restraint. Thus, although there are certainly arguments they can make in opposition to the Court's decision on same-sex marriage, their over-the-top and wildly overstated accusations that Obergefell violates the proper role of the Court and intrudes in some egregious manner on the norms of the democratic process are, at best, disingenuous. It is one thing to disagree with the Court's reasoning. It is quite another thing to charge that, in this decision in particular, the majority betrayed the respect the Court owes to the democratic process. Quite simply, it did not.



Beyond that, though, there is a special hypocrisy in these claims. Under long-established principles of constitutional interpretation, the cases in which it is most appropriate for the Court to take a more activist approach, and to give the least deference to the elected branches, are those in which a law disadvantages a historically oppressed group, for in that situation there is the greatest need for the judiciary to monitor abusive and discriminatory government action.



It is noteworthy that none of the cases in which these four justices have themselves engaged in unabashed judicial activism involved that situation. What they did involve was the enforcement of unambiguously conservative political beliefs. If one wants to make accusations of disingenuousness and judicial manipulation, those decisions present a most interesting opportunity. But in the Court's decision recognizing the right of same-sex couples to marry, the justices in the majority did precisely what the Constitution expects them to do -- protect the rights of those groups and individuals in society who have historically been subjected to oppression and discrimination.

Texas License Plates, the Confederate Flag and the Supreme Court

Back in March, on the day the Supreme Court heard arguments in Walker v. Sons of Confederate Veterans, I wrote a piece examining the "intriguing" First Amendment issue posed by the case. See here.



This week, the Court decided Walker in a sharply-divided five-to-four decision. Like many states, Texas permits drivers to design specialty license plates bearing messages they want to promote. The states that do this do it largely as a way of generating income because they charge for the privilege.



Texas has approved hundreds of different messages on its license plates, including "Choose Life" and "Fight Terrorism," but the Texas Board of Motor Vehicles balked when the Sons of Confederate Veterans sought to include an image of the Confederate flag on the plate that it had designed. The Board denied this proposed license plate under the authority of a provision that authorized it to exclude messages that were likely to offend others. Finding that this was true of the Confederate flag, it rejected the proposal.



The question was whether this was unconstitutional. As I explained in March, the central issue was whether the messages on the license plates should be characterized as "government speech" or as "private speech."



If the messages are deemed "private speech," then the exclusion of the proposed Confederate flag license plates was clearly unconstitutional. This is so because, as a general rule, the First Amendment prohibits the government from disadvantaging a speaker because his message might offend others. As the Supreme Court observed in 2011, "if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."



But there is a competing argument. Although the government cannot constitutionally discriminate against a message because it is offensive to others, the government itself is permitted to speak in its own voice without having to provide equal voice to those who disagree with it. This is the "government speech" doctrine.



Under this doctrine, the government can constitutionally erect a statue in a public park celebrating the life of Martin Luther King without also having to erect a statue celebrating the Ku Klux Klan. The government can put its own message on the state's license plate stating "Texas is Great" without also having to put the message "Texas Sucks" on its license plate as well. The state can promote the message that people should not smoke without also having to promote the message that people should smoke. And so on.



Thus, the critical issue in Walker was which approach should apply. Are the messages on specialty license plates "private speech" or "government speech"? In March, I posed the question, but did not offer my own resolution.



Writing for the majority, Justice Stephen Breyer, joined by Justices Thomas, Ginsburg, Sotomayor and Kagan, concluded that the messages on the specialty license plates are government speech. This is so, he reasoned, because the government itself chooses which messages to permit, because license plates are clearly understood to be government property that is designed primarily to convey information for the government, and because people want their messages on these license plates in part because they want the government's endorsement of their message.



Writing for the dissenters, Justice Samuel Alito, joined by Chief Justice Roberts and Justices Scalia and Kennedy, insisted that the messages on the Texas license plates were private speech. This was so, he argued, because Texas approved roughly 95 percent of all messages submitted for approval, and because most of the approved messages clearly were not intended or understood to be endorsed by the state -- for example, messages celebrating sports teams of universities in other states that compete with Texas universities, messages advertising a wide range of commercial businesses (such as realty companies), and messages celebrating such activities as golf, tennis and bowling. As Alito convincingly argued, there is simply no reason to believe that such messages were in any meaningful or plausible sense messages of the state of Texas.



As Alito put the point, what is really happening here is that Texas, like other states with similar programs, is generating substantial income by selling access to these little, traveling billboards -- unless Texas finds the message offensive.



Why are people willing to pay for the right to put their message on a license plate, rather than just put it on a bumper sticker? Justice Breyer suggests that it is because they want the state's endorsement of their message, thus rendering their message government speech. Justice Alito is right to dismiss this argument. People do this because they think it's cool, not because they think the state is affirmatively endorsing their point of view.



The problem, though, as Justice Alito concludes, is that when all is said and done, this is about the state discriminating among private speakers based on whether it approves or disapproves of the message. This, the First Amendment does not permit.



It is important, by the way, to emphasize that this case is not about the Confederate flag. In light of the decision in Walker, the state of Texas is now permitted to allow "Choose Life" license plates, while refusing to permit "Choose Choice" license plates. It is now permitted to allow Confederate flag license plates, while refusing to permit NAACP license plates. It is now permitted to allow Pro-Gun license plates, while refusing to permit Anti-Gun license plates.



Justice Alito had it right. Such state-discrimination among private speakers based on the specific messages they wish to convey violates the First Amendment -- even on license plates.

Academic Freedom Under Siege

Six weeks ago, Northwestern University President Morton Schapiro wrote a fine op-ed in the Wall Street Journal in which he offered a ringing endorsement of academic freedom. As he observed, a university must have "a compelling reason to punish anyone--student, faculty member, staff member--for expressing his or her views, regardless of how repugnant you might find those views." Indeed, he added, "freedom of speech doesn't amount to much unless it is tested," and if freedom of speech isn't aggressively protected "on college campuses, where self-expression is so deeply valued, why expect it to matter elsewhere?"



It is therefore both surprising and disappointing that Northwestern University recently found itself embroiled in two embarrassing violations of the core principles of academic freedom. Sadly, a university that should be a national leader in promoting and protecting these values allowed itself to lose sight of its very reason for being.



The first of these controversies began a little over a year ago. Atrium is a journal published by Northwestern University's Medical Humanities and Bioethics Program. Each issue focuses on a different theme, and each contributor is expected to explore the theme "in different, thought-provoking ways." The Winter 2014 issue of Atrium, which was edited by Professor Alice Dreger, included a series of lively articles on the theme of "Bad Girls." http://bioethics.northwestern.edu/atr...



One of the articles, written by William Peace, then the 2014 Jeannette K. Watson Distinguished Visiting Professor in the Humanities at Syracuse University, was titled "Head Nurses." In this essay, Peace, who is disabled, told the story of how thirty-six years earlier a young woman nurse, with whom he had grown close, provided oral sex to him during rehabilitation in order to address his deep concerns that, after a severe health problem left him paralyzed, he could no longer be sexually active.



Apparently, Peace's essay, which was written and edited in a responsible, mature, and thoughtful manner, so upset the authorities at Northwestern University's Feinberg School of Medicine that they ordered the story removed from the online version of Atrium. This act of blatant censorship, in direct contravention of any plausible understanding of academic freedom, remained in place for fourteen months, over the continued objections of Peace and Dreger.



Northwestern finally reversed course only after Peace and Dreger made clear that they would take the matter public if the university did not relent. Presumably, the university's concern was that the inclusion of such an "offensive" article in Atrium might put off some of the university's donors and the hospital's patrons, either because of its acknowledgement of oral sex or because it might be construed as demeaning to women. Neither concern is a justification for censorship. The journal, the issue, and the essay were all squarely within the bounds of academic freedom, and Northwestern University should have stood proudly in support of that principle.



As Bill Peace later noted, "obviously, sexual relations between patients and health care professionals is inappropriate," but "what I object to even more" are those "who are dedicated to branding medical institutions by censoring legitimate scholarship and attempting to erase the lives and experiences that they deem embarrassing."



The second controversy began several months ago when Northwestern University professor Laura Kipnis wrote a piece in the Chronicle of Higher Education in which she raised important questions about the regulation of student-faculty relationships, the meaning of consent, the procedural irregularities that frequently taint the efforts of colleges and universities to address such issues, and the messy and destructive lawsuits that often follow. http://chronicle.com/article/Sexual-P...



Kipnis' article is a serious, provocative, and valuable contribution to the ongoing debate about these often difficult and vexing issues. Among other things, Kipnis charged that some of the recently enacted campus codes dealing with such matters have had the effect of infantilizing women students. This, she reasoned, is not a good thing.



In response to this essay, several students at Northwestern staged a protest demanding "a swift, official condemnation" of the article because they had been made to feel uncomfortable by her thoughts on the subject. One woman student went so far as to describe the essay as "terrifying." Shortly thereafter, a women student who had filed sexual assault charges against a professor at Northwestern filed a Title IX (sex discrimination/sexual harassment) complaint against Kipnis because of the publication.



As Kipnis traces in a powerful new article published this week in the Chronicle of Higher Education, http://chronicle.com/article/My-Title... for the past several months she has been subjected to a star-chamber proceeding in which outside investigators retained by Northwestern University have sought to determine whether her initial essay somehow constituted unlawful retaliation, "intimidation, threats, coercion, or discrimination" against the student who had previously filed the sexual assault charge against the faculty member at Northwestern.



As anyone who has read Kipnis' initial article can discern, the accusation is ludicrous on its face. An essay that takes aim at the substantive values and procedures employed by universities in their efforts to regulate sexual relationships on campus is not, and cannot rationally be taken to be, an act of discrimination, retaliation, or harassment directed against any particular student who may have filed such a complaint.



What Northwestern should have done in the face of such a complaint was to dismiss it as quickly and decisively as possible and to reaffirm the fundamental right of members of the university community to write, speak, argue, and complain openly and vigorously about matters of public concern. Instead, Northwestern put Kipnis through months of "investigation" for doing nothing more than writing an interesting and provocative article in a journal of considerable repute.



It was only after Kipnis went public in her second article this week that Northwestern finally informed her that the charges against her were unfounded. As evidenced in both of these situations, it seems, not surprisingly, that the best way to get universities to stand up for academic freedom is to call them out publicly on their lack of commitment to the principles for which they are supposed to stand.



In fairness, I have to say that, at least in the Kipnis incident, this is not all Northwestern's fault. The Department of Education has run roughshod over colleges and universities in recent years by demanding, on pain of loss of federal funds, that these institutions take extreme measures, often inconsistent with basic notions of due process, to deal with complaints of sexual abuse. But this is not much of an excuse, because the Kipnis case was not an instance in which she was accused of sexually abusing anyone. She was accused, rather, of writing an article that upset some students. Turning that into a federal case is beyond the pale.



Northwestern, and other universities, must have the courage to live up to President Schapiro's ringing declaration that a university must have "a compelling reason to punish anyone--student, faculty member, staff member--for expressing his or her views, regardless of how repugnant you might find those views." That is, after all, what makes a university a university.

How to Find Common Ground on One of the Most Pressing Issues of Our Time

During the five months that I worked on the five-member Review Group that President Obama appointed in August 2013 to review and make recommendations about the nation's various surveillance programs, I came to know General Keith Alexander, who served as Director of the NSA from 2005 to 2014. General Alexander later told me that when he first learned that I, a liberal constitutional law professor and member of the ACLU's National Advisory Board, was on the Review Group, he was appalled. "How," he wondered, "could this guy possibly be fair-minded?" I have to admit that I made similar assumptions about him. "How," I wondered, "could this guy who is so deeply steeped in the culture of the NSA possibly be fair-minded?"



Over time, though, as we struggled to make sense of these very difficult issues, we came to respect one another, to learn from one another, and ultimately to reach agreement on many important questions of policy. In this piece, which we co-authored, we set forth our common views on some of the most controversial issues now facing Congress. We figure that, if we could find common ground, then even the members of Congress might be able to do so as well. Their ability to do so is, indeed, essential if we as a nation are to adopt sound policies that will both protect our national security and preserve our most fundamental liberties.



The current debate over surveillance has been divisive and polarizing. But if a constitutional law professor and an American Civil Liberties Union advisory board member can find common ground with a former director of the National Security Agency and Army general, then Congress should be able to arrive at a compromise on surveillance reform as well.



As Americans, we share these bedrock principles: That freedom, privacy and individual liberty are fundamental American values; that a core responsibility of our government is to keep our nation and our people safe; that the collection of intelligence is essential in the modern world to protect our nation's security; and that, at present, the trust of the American people has been eroded and needs to be re-established with new safeguards that ensure that the agencies charged with carrying out the collection of intelligence do so in a manner that is consistent with our deepest national values.



That is not to say that the nation's intelligence agencies have abused their authority. To the contrary, the NSA and other intelligence agencies have worked conscientiously to operate within the express authorities that Congress, the White House and the Foreign Intelligence Surveillance (FISA) Court have given them. Indeed, the men and women who work at NSA and other national security agencies deserve our admiration and support. Although intelligence agencies often operate out of necessity in secret, in our experience, they adhere to the rule of law and comply with multiple layers of effective oversight.



We must recognize that striking the "right" balance between personal liberty and national security requires constant attention and reassessment. This is especially true following periods of crisis, when there is understandable pressure to tip the scales in favor of national security.



Fifteen years after 9/11, it is imperative that we continue to recognize that the threat is real, that another major terrorist attack would seriously endanger not only lives and property, but also our ability to protect privacy and liberty in the future, and that intelligence analysts need the tools required to keep our nation safe.



That's why we both support taking a hard look at surveillance laws to find ways to maintain the operational effectiveness of our counterterrorism tools, while safeguarding privacy and civil liberties. With that goal in mind, we both support crafting new legislation that would restore the American people's trust in our intelligence agencies and ensure both legitimacy and support for critical intelligence collection.



And while the two of us may not agree on all issues involving the legislative proposals, we both agree that the current debate points us toward changes that Congress can and should adopt.



First, there is the Section 215 phone metadata program, which has generated a great deal of attention in the U.S. because, unlike other foreign intelligence programs, it authorizes the collection of bulk information about American citizens.



Under this program, which was designed to address a gap in collection that was exposed by the attacks of 9/11, the FISA Court, with the ongoing approval of both the Congress and the executive branch, authorized the NSA to collect from telephone service providers in the U.S. call records -- not including the content of any telephone calls -- in bulk. The goal, in short, was to enable the NSA to "connect the dots" and to determine whether suspected terrorists might be in touch with one another. Although expansive in nature, the program is subject to strict controls and extensive oversight by all three branches of the federal government.



Congress is currently considering reforming this program to prohibit the government itself from collecting this data in bulk. Rather, the law would require phone service providers to hold the data, and the NSA would need a court order to obtain the information only in specific cases. Another proposal would be to authorize a group of third-party providers, subject to independent audits and public oversight, to hold such data.



Although these reforms pose technological and operational challenges, for years, NSA has supported efforts to develop workable alternatives to the current system. These reforms substantially reduce the concern about possible government abuse of this data, while at the same time enabling the government to seek the information on an as-needed basis with the approval of a court. If operationally feasible, an alternative to the current program would be an important, wise and sensible reform.



Second, the FISA Court was created by Congress in 1978 to bring foreign intelligence surveillance under the authority of the judiciary for the first time in American history. This was a major and critically important change in our national security policy. But, as originally envisioned, the FISA Court permitted only representatives of the government to appear before it. As a consequence, in at least some situations, when addressing complex issues of statutory or constitutional interpretation, the judges heard only one side of the possible arguments.



Legislation could address this situation by creating an explicit opportunity for the court to hear from outside counsel. For example, in cases involving significant legal issues, one potential reform could allow the court to hear from attorneys who are obligated to voice the interests of privacy and civil liberties to appear and argue before the court so that the judges hear both sides of these questions. This change may give the public greater confidence in the court's rulings.



We should continue to look for other steps the nation can take to increase the protection of privacy and civil liberties, while still enabling the government to carry out its obligation to keep our nation safe. We would support reasonable measures to increase transparency, as well as greater efforts to enlist the help of the technology community to come up with solutions that increase privacy protection.



We face a crossroads. It is time for us to step back and evaluate our current programs and policies in a clear-eyed and thoughtful manner. We need to do this not only to preserve our fundamental values of privacy, civil liberties, and individual liberty, but also to ensure that our intelligence agencies have the tools necessary to protect the nation, along with the trust and confidence of the American people.



This was published initially in the Christian Science Monitor.

The Supreme Court in 2025

The Supreme Court plays a central role in the American legal and political system. In recent years, it has decided profoundly important cases involving such issues as campaign finance regulation, the freedom of speech, the freedom of religion, the death penalty, the freedom from unreasonable searches and seizures, voting rights, gun control, abortion, affirmative action, and the rights of gays and lesbians.

On most of these issues, the justices have divided five-to-four, typically with Justices Roberts, Scalia, Thomas, and Alito on one side, Justices Ginsburg, Breyer, Sotomayor, and Kagan on the other side, and Justice Anthony Kennedy serving as the "swing" or deciding justice, usually, though not always, siding with the Roberts "group."

At present, we have what, measured by historical voting patterns, is a very conservative Supreme Court. This is not surprising, because since the end of the Warren Court Republican presidents have made 12 of the 16 Supreme Court nominations. As a result, the Court has gotten steadily more conservative over time. This is evident in the fact that the "swing" justice has shifted over that time from Justice Lewis Powell to Justice Sandra Day O'Connor to Justice Anthony Kennedy -- an unbroken march to the right.

What will the Supreme Court look like a decade from now?

In 10 years, the Court will likely have a significantly different makeup than it does today. Four of the current justices are 76 years-old or older. Justice Breyer is 76, Justice Kennedy is 78, Justice Scalia is 79, and Justice Ginsburg in 82.

In the last half-century, 18 justices have stepped down from the Court. Their average age at retirement was 75. Of those 18 justices, only two were still on the Court at the age of 86 (Stevens and Blackmun). Of the 112 justices who have served on the Supreme Court from its beginning, only four were still on the Court at the age of 86.

It therefore seems likely that we will see a substantial turnover on the Court over the course of the next decade. It will matter a lot who gets to fill those vacancies. This is so not only because presidents want to nominate justices who will reflect their own views of the law, but also because presidents have gotten quite good in recent decades at identifying nominees who will in fact reflect their own views of the law.

Although justices may occasionally surprise and disappoint the presidents who appoint them (Earl Warren surprised Dwight Eisenhower and David Souter surprised George H.W. Bush), such "mistakes" have become increasingly rare as presidents and their staffs have learned how to vet potential nominees with ever greater scrutiny and care.

It will therefore matter a lot who gets to appoint the justices who will succeed those who are now on the Court, but will be gone by 2025. With that in mind, what might happen to the Supreme Court over the course of the next decade?

Let's assume, though it's hardly certain, that all four of the justices who are today 76 or older leave the Court by 2025. Let's also assume, first, that a Democratic president is elected in 2016 and is re-elected in 2020. If that president gets to appoint the four new justices, and all four are more or less similar in outlook and approach to Justices Sotomayor and Kagan, the two most recent Democratic nominees, then the Supreme Court in 2025 will include six "liberal" justices (Sotomayor, Kagan, plus the four new nominees) and three "conservative" justices (Roberts, Thomas, and Alito). Such a shift would move the Court sharply to the left.

On the other hand, if we assume that a Republican president is elected in 2016 and is re-elected in 2020, things will look quite different. If that president gets to fill the four vacancies, and all four are more or less similar in outlook and approach to Justices Roberts and Alito, the two most recent Republican nominees, then the Court in 2025 will include seven "conservative" justices (Roberts, Thomas, Alito, plus the four new nominees) and only two "liberal justices (Sotomayor and Kagan). Such a shift would move the Court even farther to the right than it is today, because the "swing" justice under this scenario would be someone appreciably to the right of Justice Kennedy.

Across a broad range of fundamental issues, including some we cannot today even predict, these two versions of the Supreme Court would be profoundly different institutions that would reach sharply different conclusions about the meaning of constitutional law. Might Citizens United be overruled? Roe v. Wade? District of Columbia v. Heller? Only time will tell.

Of course, none of this may come to pass. Perhaps none, or only one or two, of the current justices will retire in the next decade. Perhaps the president we elect in 2016 will be replaced by a president of the other party in 2020, and each will get the same number of nominations. Perhaps the Senate will refuse to confirm nominees unless they are more middle-of-the-road than justices Roberts, Alito, Sotomayor, and Kagan. Nothing is certain. It is all up for grabs.

What we do know, though, is that on this question, as on so many others, the individual we elect as president will have the potential to have profoundly important consequences for the Supreme Court and the nation in the decade to come.

This post is part of a series commemorating The Huffington Post's 10 Year Anniversary through expert opinions looking forward to the next decade in their respective fields. To see all of the posts in the series, read here.

Intelligence Gathering, Secrecy and the Congress Problem

In an important decision, a federal court of appeals held yesterday that the NSA's bulk collection of telephone metadata could not be squared with the legislation that was said to authorize it.



Section 215 of the Patriot Act authorizes the Foreign Intelligence Surveillance Court to issue orders requiring such entities as telephone companies, credit card companies, banks, car rental companies, internet service providers, etc. to turn over their records to the government if the Foreign Intelligence Surveillance Court finds that "there are reasonable grounds to believe" that the records "sought are relevant to an authorized investigation" that is designed to protect the nation "against international terrorism."



In ordinary criminal investigations, the government can obtain similar records by using a subpoena issued by an ordinary court. The goal of section 215 was to enable the nation's intelligence agencies to obtain similar records in the course of foreign intelligence investigations. The reason section 215 was necessary is secrecy. Unlike ordinary criminal investigations, foreign intelligence investigations often involve classified information. Ordinary courts are not authorized to handle classified information. Thus, the Foreign Intelligence Surveillance Court was created because, unlike ordinary courts, it is authorized to handle classified information. Section 215 was enacted after the events of 9/11 to enable the intelligence agencies to obtain orders from the Foreign Intelligence Surveillance Court, enabling them to obtain records that are "relevant" to classified investigations of international terrorism.



In 2006, the Foreign Intelligence Surveillance Court held that, under section 215, the NSA could obtain, from telephone service providers in the United States, massive amounts of telephone metadata that consists of the phone records of millions of Americans. The metadata consists basically of phone numbers, including the phone numbers that are in contact with every phone number collected, but it includes no names and no information about the content of the calls themselves. The NSA uses the metadata to determine when a suspected terrorist, usually outside the United States, is in touch, directly or indirectly, with a suspected terrorist inside the United States.



The question before the court of appeals was whether the collection of this enormous database is "relevant" to an "authorized investigation." The problem is that the word "relevant" is ambiguous. In the usual criminal investigation, in which the government investigates a particular crime or a particular suspect, it will use a subpoena to obtain relatively specific information about the crime or the suspect. In the section 215 telephone metadata program, however, the massive amount of information collected is not, at the time it is collected, "relevant" to any particular suspected terrorist or suspected terrorist plot. Rather, the government collects the information because having it might be useful later when it investigates a particular terrorist suspect or terrorist plot.



The court of appeals concluded that the collection of massive amounts of telephone metadata was not within the meaning of the word "relevant" in section 215. This seems to me a correct conclusion. No court had ever upheld a subpoena that sought information even remotely as broad as that obtained with the authorization of the Foreign Intelligence Surveillance Court under section 215. To construe the statutory language as authorizing such a program seems clearly beyond anything Congress intended or contemplated when it enacted section 215.



The next question the court of appeals had to address, however, was whether, when Congress reauthorized section 215 after the telephone metadata program was in place, it implicitly approved the Foreign Intelligence Surveillance Court's interpretation of the statute. The court of appeals rejected this argument, in part because the telephone metadata program was a secret program. If it was not known to members of Congress when they voted to reauthorize the statute, then they couldn't logically be said to have approved the program.



In fact, though, it is a bit trickier than this, because although most members of Congress did not know of the program when they reauthorized section 215, the members of the House and Senate Intelligence Committees did know of the program and, in recommending reauthorization of section 215, they understood the reauthorization as including reauthorization of the telephone metadata program.



The problem is what to make of this? Can it reasonably be said that, by creating specialized intelligence committees that are authorized to have access to classified programs and information, Congress implicitly delegated to those committees the authority to act on its behalf when it comes to the review, approval and authorization of secret programs?



This poses a broader and even more interesting -- and vexing -- question. How can Congress ever authorize secret programs? Historically, in the realm of foreign intelligence, it was assumed that the President had carte blanche authority to deal with such matters. It was relatively easy for the Executive Branch to deal with that responsibility, because the Executive Branch can (at least in theory) deal effectively with national security secrets.



After it came to light in the mid-1970s that the Executive Branch had abused its authority to engage in foreign intelligence surveillance by using its authority, among other things, to spy on political opponents in the United States, Congress enacted the Foreign Intelligence Surveillance Act in 1978 with the goal of constraining Executive Branch authority. The Act prohibited certain types of foreign intelligence activities, authorized others, and created the Foreign Intelligence Surveillance Court to oversee the actions of the Executive Branch in implementing its authority inside the United States.



But that left open the question, which is still unresolved, of how Congress itself can authorize programs that must be kept secret from our enemies and, therefore, from the American people. One answer, of course, is that the government should never have any foreign intelligence programs that have not been discussed openly and approved by the American people. The problem with that answer is that that "solution" would automatically render eliminate all sorts of surveillance programs that require secrecy in order to be effective.



Another answer is to figure out some way that Congress can have a meaningful role in deciding whether to approve secret foreign intelligence programs without at the same time destroying their effectiveness. That, of course, was the reason for creating the House and Senate Intelligence Committees. But, if their approval is not sufficient to reflect congressional approval, then another way must be found to enable the Congress itself to discuss, debate, review and evaluate secret foreign intelligence programs without destroying them in the process.



To-date, to the best of my knowledge, no one has figured out how to do that, because Congress as an institution has never been thought capable of dealing with classified information. This is so, not only because many members of Congress don't have top secret clearances, but also because most of their staff members also don't have such clearances. And, in any event, the notion of Congress meeting as a whole in secret session in order to debate and vote upon secret foreign intelligence surveillance programs seems rather strained, especially in the current Washington climate.



So, the decision of the federal court of appeals raises a great and important dilemma. If secret foreign intelligence programs must be approved by Congress in order for them to be lawful, how can we make that work? This is not a criticism of the court of appeals' decision. It is, rather, a challenge for the future.

Getting to Same-Sex Marriage

On April 22, I delivered the University of Chicago's annual Nora and Edward L. Ryerson Lecture on the subject of same-sex marriage. Because the Supreme Court will hear arguments on this issue on Tuesday, I thought I would post the core of the lecture here. It quite a bit longer than the usual Huffington post, so I apologize for that.



In August 1982, an Atlanta police officer went to the home of Michael Hardwick to serve an arrest warrant for public drinking. Upon entering the home, the officer observed Hardwick and another man engaged in oral sex. The officer placed both men under arrest for the crime of sodomy.



In Bowers v. Hardwick, decided in 1986, the Supreme Court held that Georgia's prohibition of homosexual sodomy was not unconstitutional. Noting that the Constitution says nothing about a right to commit sodomy, and that proscriptions against homosexuality "have ancient roots," Justice Byron White, who wrote the majority opinion, concluded that, to claim that the Constitution protects "a right to engage in such conduct ... is, at best, facetious."



In a concurring opinion, Chief Justice Warren Burger added that condemnation of homosexual conduct "is firmly rooted in Judeo-Christian moral and ethical standards" and that "to hold that the act of homosexual sodomy" was somehow protected by the Constitution "would be to cast aside millennia of moral teaching."



Justice Harry Blackmun, joined by Justices Brennan, Marshall, and Stevens, dissented. Although conceding that "traditional Judeo-Christian values" had proscribed homosexual intimacy for hundreds, if not thousands, of years, Blackmun insisted that that fact "cannot provide an adequate justification" in itself for the Georgia law. "That certain ... religious groups condemn the behavior at issue," he reasoned, "gives the State no license to impose their judgments on the entire citizenry." To the contrary, "the legitimacy of secular legislation" depends on "whether the State can advance some justification for its law beyond its conformity to religious doctrine." Finding no such justification, Blackmun concluded that the Georgia statute could not be reconciled with the United States Constitution.



That, however, was a dissenting position.



The Court's invocation of moral and religious proscriptions against homosexuality played a central role in the justices' reasoning in Bowers, and it is therefore useful to have some understanding of that history. Let's take a look at the "ancient roots" Justice White invoked.



The pre-Christian world generally thought of sex as a positive part of human nature. It did not see sex as bound up with questions of sin or religion. The ancient Greeks, for example, focused, not on sexual "sin," but on whether an individual's conduct was harmful to others. This extended even to homosexuality. Indeed, a common feature of classical Greek sexual life was that adult men often had sexual relationships with adolescent boys. This might seem strange to us, but Greek poetry, history and literature celebrated such relationships and identified them with love, honesty, integrity, honor, and courage. Similarly, although Roman sexual life was different from that of the Greeks, the Romans too celebrated sexual pleasure and neither Roman religion nor Roman law condemned same-sex sex.



The emergence of Christianity, however, produced a profound change in the prevailing understandings of sex generally. By the end of the fifth century, Christianity had come to condemn sexual desire as inherently shameful and as an evil temptation that must be suppressed. This shift occurred over the course of several centuries, but it was Augustine who finally crystallized the early Christian understanding of sex. In a critical leap, Augustine linked sexual desire to the Fall of man. Adam's transgression, he argued, had not been one of disobedience, as the ancient Hebrews had believed, but one of sex.



Augustine therefore maintained that every sexual desire is born out of evil, that every child born out of evil is born into sin, and that it is through sex that man passes on the original sin from one generation to the next. Augustine therefore concluded that man's only hope for redemption lay in repudiating the sexual impulse and, with it, the burden of sin and shame inherited from Adam. Augustine's vision ultimately shaped the future, not only of Christianity, but of Western culture and law, more generally.



During the next thousand years, Christian dogma, backed by the threat of hellfire and damnation, attained not only religious, but social, political, and legal authority. The sin of "sodomy" came to be seen as uniquely dire, for as the biblical story of Sodom had taught, for this particular sin God will punish not only the sinners, but also those who fail to prevent the sin.



It was still unclear, though, precisely what acts constituted "sodomy." It was Thomas Aquinas who, in the 13th century, first drew a sharp distinction between opposite-sex and same-sex "unnatural" acts. Although oral or anal sex with a person of the opposite sex was deemed a vice against nature, such acts with a person of the same sex, he concluded, constituted the worst form of sodomy. Before long, Thomas's thinking on this point became the dominant authority in Christian doctrine.



At roughly the same time, and not coincidentally, same-sex sex came for the first time to be declared, not only a sin, but a crime. That is, the Church for the first time conscripted the secular law to extend its prohibition on same-sex sex not only to those who shared the faith, but to everyone, regardless of their personal religious beliefs. Criminal statutes against same-sex sex were thus enacted throughout Europe, and because of the heinous nature of this crime, these laws called for homosexuals to be castrated, dismembered, burned at the stake, drowned, hanged, stoned to death, decapitated, or buried alive. In short, homosexuals for the first time became the object of a systematic program of extermination.



Although the Reformation brought about significant changes in the Protestant attitude towards sex, those changes did not extend to homosexuality. To the contrary, Protestant reformers reaffirmed in no uncertain terms the traditional condemnation of homosexuality as a "detestable and abominable sin." In the American colonies, for example, the Puritans declared that sodomy must be punished "with death, without mercy," and warned that the "Land cannot be cleansed until it hath spued out this Unclean Beast."



By the time of the American Revolution, the colonies, under the influence of the Enlightenment, had stopped using the criminal law to prosecute most forms of consensual sex -- except for the crime of sodomy, which remained a capital offense. Indeed, sodomy remained a serious felony in every state in the nation for the next two hundred years.



Throughout all of this history, until the late 19th-century, it was generally assumed that individuals who chose to engage in same-sex sex were no different than other individuals who chose to engage in other types of criminal or sinful behavior. Engaging in homosexual sex, like engaging in robbery, was simply a choice.



This assumption began to be questioned, however, in the late 19h-century, as medical authorities became interested in the issue. For the first time, persons drawn to same-sex sex began to be seen as individuals possessed of a distinctive psychological identity. It was in this era that the concept of the "homosexual" first came into being.



Leading studies of homosexuality in the late 19th century posited that homosexuality was a pathology and that persons afflicted with this pathology were "strange freaks of nature." Among the questions debated were whether the inclination to engage in homosexual conduct was congenital or acquired, whether it was curable or incurable, and whether it should be accepted as an unavoidable condition or actively resisted and suppressed.



Physicians in this era proposed a broad range of "remedies" for homosexuality, including hypnosis, psychoanalysis, sex with prostitutes, intense bicycle riding, rectal massage, burning the neck and lower back with hot irons or chemicals, electric stimulation, castration, and clitorectomy. Many doctors recommended the sterilization of homosexuals in order to prevent the condition from being passed on to the next generation, and by 1938, 32 states had enacted compulsory sterilization laws aimed at homosexuals.



Also in the 1930s, the image of the homosexual took on an increasingly sinister cast. A growing public anxiety over sex crimes recast the dominant image of homosexuals as dangerous psychopaths who were naturally inclined to commit the most unspeakable crimes. Demonized not only as perverts, but now as child molesters as well, "homosexuals became the new enemy of the people," and arrests for sodomy increased dramatically percent in the 1930s.



During World War II, the United States for the first time attempted to prevent homosexual men and women from entering the military, and those who were discovered in the military were discharged in proceedings that often left them branded for life.



With the advent of the Cold War, things got even worse. Fearful of domestic subversion, Americans turned with a vengeance against homosexuals. The conflation of "Communists and queers" seemed only logical, for Americans viewed communism as atheistic, un-Christian, immoral and degenerate. As one congressman asserted in 1950, "the Russians are strong believers in homosexuality." Red-baiting journalists warned that "Communists are now converting American youth to homosexuality to defeat us from within," and Senator Kenneth Wherry of Nebraska, the Republican floor leader, declared that "You can't hardly separate homosexuals from subversives."



By 1950, the "Lavender Scare," as it came to be called, was well underway. Government agencies began using lie detectors to determine whether their employees were homosexuals, the FBI compiled lists of suspected homosexuals from local vice-squads, and President Eisenhower issued an Executive Order officially declaring "sexual perversion" a serious security risk.



In light of the intensity of the anti-homosexual fever that gripped the nation during the Lavender Scare, gays and lesbians found themselves increasingly isolated. In a society in which the dominant religion excoriated homosexuality as a heinous sin, the law branded it a vicious crime, and the medical profession diagnosed homosexuals as diseased, the vast majority of individuals who harbored homosexual impulses did their best to hide their secret shame from family, friends, neighbors, employers, and associates. The terrible fear of discovery kept the secret lives of most homosexuals invisible, even to one another.



Indeed, even civil rights groups turned their backs on gays and lesbians in this era. In 1957, for example, the national board of the American Civil Liberties Union declared that "it is not within the province of the [ACLU] to question the validity of laws aimed at the suppression or elimination of homosexuals."



By the late 1960s, though, inspired by the civil rights and women's rights movements, a handful of courageous gay men and lesbians began calling openly for the acceptance of homosexuals "as full equals" in society. In 1969, for example, Carl Wittman, a gay SDS leader, penned what he termed The Gay Manifesto, in which he declared: "Our first job is to clear our own heads of the garbage that's been poured into them.... Liberation for gay people is defining for ourselves who we are. It is time for us to come out."



This was the first time anyone had used the term "come out" in this manner. For those who sought equal rights for gays and lesbians, "coming out" was a radical and daring act that would affect every aspect of their lives. Indeed, as late as 1969, only a few hundred members of the growing gay rights organizations in the United States had publicly identified themselves as homosexuals. This was about to change.



At around 1:00 a.m. on the night of Friday, June 27, 1969, the New York police raided the Stonewall Inn, a dingy, Mafia-owned gay bar on Christopher Street in Greenwich Village. Five other New York bars had been raided in the previous three weeks, but this time the drag queens, bar boys, and lesbians who had either been in the bar or in the gathering crowd outside resisted the police harassment. The next night, hundreds of gay men and women gathered on Christopher Street, leading to yet another confrontation with the police, an event that generated national attention. A year later, thousands of people commemorated the anniversary of Stonewall by marching in New York City, Chicago and Los Angeles in the nation's first Gay Pride parades.



The decade after Stonewall saw gradual, but halting, progress in the cause of gay rights. In 1972, a lesbian was allowed to retain custody of her children in a contested divorce for the first time in American history. In 1973, the American Psychiatric Association declared for the first time that homosexuality was not a mental illness. And by the end of the decade, 22 states, adopting the recommendation of the American Law Institute, had repealed their laws making consensual sodomy a crime. Illinois, by the way, was the first state in the nation to do this.



These developments sparked a sharp backlash, however. The most dramatic explosion arose over a proposed gay rights ordinance in Dade County, Florida. In 1977, the county commission, following the lead of several other cities, passed an ordinance prohibiting employment discrimination on the basis of sexual orientation. Local religious groups were outraged, and demanded an immediate repeal of the ordinance. Local Baptists charged that the law violated God's biblical commandments, and the National Association of Evangelicals soon entered the fray. Leaders of the Christian Right, including Jerry Falwell, Pat Robertson, and Jim and Tammy Baker, came to Miami to campaign in favor of repeal, and in a special referendum, Dade County's voters repealed the ordinance by an overwhelming margin.



This victory generated momentum for a new, religion-based, anti-gay movement. The campaign took on an ugly tone as bumper stickers appeared across the nation with such messages as "Kill a Queer for Christ." Within two years, many of the laws that had been enacted in other cities to protect gays from discrimination were also repealed. The Christian Right charged that such laws promoted "child molesting" and "gay recruiting," and the Rev. Jerry Falwell raged that "Homosexuals do not reproduce! They recruit! And, many of them are after your children." The anti-gay rights crusade saw this fight as a religious battle for the Christian soul of America.



Soon thereafter AIDS struck the gay community with a vengeance. As the disease became associated in the public mind with homosexuality, the Christian Right deemed AIDS God's punishment for homosexual sodomy. The Reagan administration, which had actively courted the Christian Right, had no interest in devoting "government time or money" to an illness that was thought to threaten only gay men. Rather than invest federal funds in medical research, the White House instructed the Center for Disease Control to "look pretty and do as little as we can." Over the course of the next decade, AIDS ravaged the homosexual community, killing more than a quarter-of-a-million gay men and leaving hundreds of thousands more to wonder if they might be next.



Ironically, though, the horror of AIDS brought homosexuality into the light. As thousands of gay men died horrible deaths, people had to take notice -- often, though not always, with sympathy and concern. Gradually, one person at a time, in often awkward and sometimes excruciatingly painful conversations with family, friends, and acquaintances, the previously closeted lives of homosexuals became visible, first out of necessity and desperation, then later out of candor and self-respect.



"Gay invisibility" was suddenly melting away. At the Gay and Lesbian March on Washington in 1993, hundreds of thousands of individuals wearing pink triangles marched proudly past the White House. Four years later, Ellen DeGeneres, star of the popular ABC television show Ellen, came out as a lesbian. Shortly thereafter, some forty-two million viewers tuned in to watch DeGeneres' character, Ellen Morgan, reveal that she, too, was a lesbian.



Not everyone cheered. The response of the Christian Right was fierce. The Rev. Jerry Falwell called Ellen DeGeneres "Ellen DeGenerate," and the Southern Baptist Convention called for a boycott of ABC because it had broadcast the show. In the view of the Christian Right, homosexual perversion, immorality, and degeneracy were being spewed across the land. Donald Wildmon, the president of the American Family Association, railed that homosexuality was "a sin grievous to God and repulsive to Christians." This struggle, he declared, was a matter of life and death, because if we fail, "we fear the judgment of God on our nation."



The battle lines had clearly been drawn.



This brings me back to the Supreme Court. As we saw earlier, in its first encounter with homosexuality the Court held in Bowers v. Hardwick that a state could constitutionally make homosexual conduct a criminal offense. The Court explained that, given the history of religious and moral condemnation of homosexuality, any suggestion that the Constitution could be interpreted as protecting such behavior was, "at best, facetious."



The Court's second foray into this arena was Romer v. Evans, which was decided in 1996, exactly a decade after Bowers. As I noted earlier, beginning in the late 1970s several cities enacted ordinances prohibiting discrimination on the basis of sexual orientation. As in Dade County, however, this generated a sharp response from the Christian Right, which usually succeeded in getting those laws repealed.



In Colorado, after Denver enacted an anti-discrimination ordinance in 1991, a coalition of Christian Right organizations launched an aggressive campaign to amend the Colorado constitution to override the ordinance. Amendment 2, which was adopted in a statewide referendum, provided that neither the State of Colorado, nor any of its subdivisions, could enact any law that protected homosexuals against discrimination. Nine days later, lawyers from Lambda Legal and the American Civil Liberties Union, which had changed its tune, filed suit claiming that Amendment 2 violated the United States Constitution.



In light of Bowers, it seemed clear that the Supreme Court would reject the challenge, but in a stunning six-to-three decision the Court held Amendment 2 unconstitutional. Justice Anthony Kennedy, who had been appointed to the Court by President Ronald Reagan, authored the Court's opinion.



In Kennedy's view, the problem with Amendment 2 was that it imposed "a special disability" only upon homosexuals. This was so because, under Amendment 2, every group in Colorado was free to try to persuade a city council, a state university, or the state legislature to enact regulations protecting them against discrimination -- except homosexuals. Because of Amendment 2, only homosexuals would have to amend the state Constitution before they could obtain "protection against discrimination."



With that fact in mind, Kennedy turned to the Equal Protection Clause of the Fourteenth Amendment, which provides that "no state shall ... deny to any person the equal protection of the laws." Under that guarantee, if a law treats some people differently than others, it ordinarily will satisfy the demands of equal protection if "it bears even a rational relation to some legitimate end." Although almost every law passes that highly deferential standard, Justice Kennedy concluded that Amendment 2 did not.



This was so, he reasoned, because "a law declaring that ... it shall be more difficult for one group of citizens than for all others to seek aid from the government" was virtually "unprecedented" in American history, and it was therefore impossible to escape the inference, he explained, that the "disadvantage imposed" on homosexuals by Amendment 2 was the result, not of any rational effort to further a legitimate state interest, but "of animosity toward the class of persons affected." Because a bare desire to harm a politically unpopular group cannot constitute a legitimate government interest, Kennedy concluded that Amendment 2 violated the Equal Protection Clause.



Justice Antonin Scalia, joined by Chief Justice Rehnquist and Justice Clarence Thomas, was of a rather different view. Scalia maintained that Amendment 2 "is not the manifestation of a '"bare ... desire to harm"' homosexuals, but is rather a rational and perfectly legitimate attempt by Coloradans to "preserve traditional sexual mores." He castigated Justice Kennedy's reasoning as utterly disingenuous.



The Supreme Court's third decision involving the rights of homosexuals, Lawrence v. Texas, was pretty much a re-run of Bowers v. Hardwick. Police officers in Houston were dispatched to a private residence in response to a reported disturbance. After they entered the residence, they saw two men engaging in anal sex. The men were arrested, charged, and convicted of violating a Texas statute making it a crime for any person to engage "in deviate sexual intercourse with another individual of the same sex."



Since 1982, Bowers v. Hardwick had been used by politicians, legislators, and judges to justify discrimination against gays and lesbians in deportation hearings, adoption proceedings, military discharges, employment discrimination, and a host of other contexts. After all, if homosexual conduct is criminal, than a homosexual is no different than a rapist, a robber, or a thief.



Much had changed, however, in the seventeen years between Bowers and Lawrence. Not only had AIDS devastated the gay community and changed the public's perception of homosexuality, but sixty percent of Americans now thought that homosexual sex should no longer be deemed a criminal offense.



In a six-to-three decision, the Supreme Court overruled Bowers and held the Texas statute unconstitutional. Justice Kennedy again delivered the opinion of the Court. Kennedy maintained that the Court's reasoning in Bowers v. Hardwick had been distorted by its "failure to appreciate the extent of the liberty at stake" in such deeply personal relationships.



Although conceding that the Framers of the Constitution had not expressly guaranteed the right to engage in homosexual sex, Kennedy explained that the Framers had intentionally left some constitutional guarantees open-ended because "they knew" that "later generations can see that laws once thought proper in fact serve only to oppress." That, Kennedy maintained, was the situation in Lawrence. There was, he concluded, no constitutionally legitimate justification for making same-sex sex a crime.



Justice Scalia, joined once again by Rehnquist and Thomas, dissented. Scalia accused the Court of signing on to what he termed the "homosexual agenda," and he fumed that the Court had no business invalidating legislation that had been legitimately enacted by the citizens of Texas.



Echoing Justice Scalia's outrage, religious conservatives throughout the nation were livid. Pat Robertson denounced the Court for rending the "moral fabric of the nation," Jerry Falwell warned that Lawrence would lead to bestiality, and a pastor in Kansas fumed that it marked "the death knell of American civilization."



When it came time for Justice Kennedy to announce the judgment of the Court in Lawrence, he read a brief statement explaining the result from the bench. The Supreme Court chamber was, of course, packed. At the end he declared: "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be, and now is, overruled."



It was a remarkable moment. Overwhelmed by what was happening, many of the gay and lesbian advocates sitting in the gallery sobbed openly. For the gay and lesbian community it was an occasion for dancing in the streets. Joyous demonstrations erupted in cities across the nation.



For gays in America, Lawrence meant much more than that rarely-enforced anti-sodomy laws could no longer be legally enforced. Rather, Lawrence meant that never again would their rights be dismissed by the highest tribunal in the land as, "at best, facetious," and never again would they wonder whether the words engraved on the pediment of the Supreme Court building, "Equal Justice Under Law," included them. The Constitution was now their constitution, too.



In San Francisco, a group of veterans who had been expelled from military service during World War II because of their sexual orientation proudly saluted as a huge Rainbow Flag, which had flown atop an eighty-foot pole for more than five years, was lowered and an American flag for the first time was raised in its place.



For most of American history, the notion that a man could marry a man, or a woman could marry a woman, seemed utterly absurd. In 1990, however, only four years after Bowers v. Hardwick, three gay couples in Hawaii applied for marriage licenses, which were of course denied. Audaciously, they then filed suit in state court claiming that the state's refusal to allow same-sex couples to marry violated the Hawaii constitution. To pretty much everyone's surprise, the Hawaii Supreme Court ruled in 1993 that the state's law restricting marriage to a man and a woman might violate the Hawaii constitution.



This decision provoked a furious response from the Christian Right, and almost immediately states across the nation rushed to amend their state constitutions explicitly to define marriage as involving one man and one woman. The goal of these amendments was both to prevent their own state courts from following the Hawaii Supreme Court's suggestion, and to make it impossible for future majorities in the state, should they emerge, to legalize same-sex marriage by enacting legislation to that effect.



These issues played out at the national level, as well. As the 1996 election approached, the anti-gay rhetoric was virulent. Dick Armey, the Republican whip in the House, publicly referred to congressman Barney Frank as "Barney Fag," six of the seven Republican presidential candidates vehemently condemned the idea of same-sex marriage, and Republican Speaker of the House Newt Gingrich proposed the "Defense of Marriage Act," or DOMA, which provided, among other things, that if any state recognized marriages between persons of the same sex, persons entering into such marriages would be ineligible for the multitude of federal benefits that were otherwise available to married couples.



The hearings on DOMA were "openly homophobic." Members of Congress described gays and lesbians "as sick, perverted, and dangerous," charged that the nation was facing a dangerous "attack upon God's principles," and warned that "the flames of hedonism ... are licking at the foundations of our society."



Congress quickly enacted the legislation, and with a presidential election just around the corner, and, with the American people opposed to same-sex marriage by a margin of sixty-eight to twenty-seven percent, President Bill Clinton signed DOMA into law. Of course, none of this really mattered at the time, because same-sex marriage was not legal in any state in the nation.



Seven years later, though, in 2003, the Massachusetts Supreme Court held that laws denying same-sex couples the freedom to marry violated the Massachusetts constitution. Massachusetts thus became the first state in the nation to legalize same-sex marriage. In response, 13 additional states promptly amended their state constitutions to forbid same-sex marriage.



Several years later, though, the state supreme courts of Connecticut, California, and Iowa followed Massachusetts' lead and held that their state constitutions also guaranteed same-sex couples the right to marry. Moreover, in 2009, Vermont became the first state in the nation to enact same-sex marriage by legislation. Shortly thereafter, New Hampshire and Maine followed suit.



The pushback, again, was furious. In Maine and California, for example, the Christian Right launched vigorous - and successful -- campaigns to amend their state constitutions to outlaw same-sex marriage, and voters in Iowa, spurred on by the Moral Majority, voted out of office three of the state supreme court justices who had voted to recognize a state constitutional right to same-sex marriage. As the executive director of the American Family Association warned, if any judge attempts "to impose ... an amoral agenda, we're going to take [you] out."



Thus, despite several seemingly landmark victories, the movement for same-sex marriage had stalled. DOMA remained the law nationally, most efforts to legalize same-sex marriage had been overturned, and by 2013 more than thirty states had enacted state constitutional amendments expressly outlawing same-sex marriage.



This brings me to the Supreme Court's fourth and most recent decision in our story - United States v. Windsor. Edith Windsor and Thea Spyer met in New York City in 1963 and began a long-term relationship. In 2007, they were married in Ontario, Canada, and New York law recognized the validity of their marriage. Two years later, Spyer died, leaving her estate to Windsor. When Windsor sought to claim the federal estate tax exemption for surviving spouses, she was barred from doing so by section 3 of DOMA, which expressly provided that no provision of federal law could recognize as lawful any marriage other than those between a man and a woman. Windsor then filed suit, challenging the constitutionality of section 3.



In a bitterly-divided five-to-four decision, the Supreme Court invalidated section 3 of DOMA on June 26, 2013 - ten years to the day after its decision in Lawrence. As in Romer and Lawrence, Justice Kennedy authored the opinion of the Court. He was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts and Justices Scalia, Thomas, and Alito dissented.



In his opinion for the Court, Justice Kennedy explained that the issue presented was not whether states were constitutionally obligated to recognize same-sex marriage, but whether the federal government could constitutionally discriminate against couples who were legally married in a state because those individuals happened to be of the same sex.



In approaching this question, Kennedy emphasized that "by history and tradition the definition and regulation of marriage has been treated as being within the authority of the separate States." A state's decision to give same-sex couples "the right to marry," he noted, "conferred upon them a dignity and status of immense import." Although acknowledging that "Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges," Kennedy characterized DOMA as unprecedented because it applied "to over 1,000 federal statutes and the whole realm of federal regulations."



Thus, like Colorado's Amendment 2, which had been invalidated in Romer, Kennedy maintained that a central purpose of DOMA was to undermine "the equal dignity" of gays and lesbians. Indeed, DOMA's "principal effect," he maintained, "is to identify a subset of state-sanctioned marriages and make them unequal." "By creating two contradictory marriage regimes within the same State," DOMA, he reasoned, "places same-sex couples" in the "position of being in a second-tier marriage," a discrimination that "demeans the couple" and "humiliates tens of thousands of children now being raised by same-sex couples." Because no legitimate federal interest justified what he described as "the purpose and effect" of disparaging "those whom the State sought to protect," Kennedy concluded that DOMA violated the Constitution.



In a furious dissenting opinion, Justice Scalia characterized the Court's reasoning as nothing short of "remarkable." At various points, Scalia dismissed Kennedy's analysis as "perplexing," "confusing," "absurd," "overcooked," and "legalistic argle-bargle." Scalia reiterated what he had insisted upon in Lawrence: "The Constitution does not forbid the government to enforce traditional moral and sexual norms." That, in itself, he maintained, is sufficient justification for the federal government's decision not to recognize same-sex marriages.



Scalia angrily predicted that Windsor would lead to recognition of a constitutional right to same-sex marriage. He charged that if the Court believed that DOMA was the product of unconstitutional animus against homosexuals, then surely it would make the same assertion about state laws limiting marriage to one man and one woman. "As far as this Court is concerned, he fumed, "no one should be fooled; it is just a matter of ... waiting for the other shoe."



It is striking how far the Court had moved in the twenty-seven years from Bowers to Windsor. This was due to several factors, one of which was not an overall move of the Court in a more "liberal" direction. To the contrary, on a broad range of issues, including affirmative action, campaign finance, gun control, and voting rights, the Court, with the additions of Justices Scalia, Kennedy, Thomas, Roberts, and Alito, had grown, if anything, notably more "conservative" than the Court at the time of Bowers.



What had changed in those years was the public awareness of gays and lesbians in society and the public and legal understanding of both the morality and wisdom of laws discriminating on the basis of sexual orientation. Indeed, public opinion on these issues had shifted dramatically between Bowers and Windsor. In 1986, no one even bothered to poll on the question of same-sex marriage. It wasn't until 1996 that Gallup finally thought to ask people about same-sex marriage. At that time, only 27 percent of Americans thought same-sex marriage should be legal. By 2013, fifty-four percent of Americans shared that view.



This shift was due to many factors, but most important was the profound change in the visibility of gays and lesbians in American society. This transformation affected not only everyday citizens, but also legislators, mayors, governors, presidents, and judges. With these changes, the traditional judicial understandings of such fundamental legal concepts as liberty, equality, and due process -- as applied to homosexuals -- were suddenly called into question, and rightly so.



It is important to note, though, that these changes in public attitudes and understandings did not in themselves dictate any particular change in constitutional doctrine. Bowers and Windsor were both five-to-four decisions. Only one vote had "changed" over the course of those twenty-seven years. Had Robert Bork been confirmed, and Anthony Kennedy therefore never been appointed to the Court, the outcome in Windsor almost surely would have been five-to-four the other way.



Thus, the divergent outcomes in these cases were shaped by at least two critical factors: the general public understanding of homosexuality at the time of the decision, and the particular interpretative approaches and values of the individual justices who happened to be on the Court at the specific moment when the issues arose.



Since Windsor there has been a virtual avalanche of lower court decisions invalidating state laws denying same-sex couples the freedom to marry. Before Windsor, the vast majority of all courts and judges who addressed this issue held that laws limiting marriage to opposite-sex couples were constitutional. In the two years since Windsor, the overwhelming majority of courts and judges have held such laws unconstitutional. The shift has been sudden and it has been seismic.



The other shoe is about to fall.



In June, the Supreme Court will hand down its decision in Obergefell v. Hodges, which directly presents the question whether state laws that deny same-sex couples the freedom to marry violate the United States Constitution. It seems almost certain that at least five justices will now take this step and that Justice Anthony Kennedy will again write the opinion of the Court.



What is unknown is whether any of the other justices will join the decision, and what explanation the Court will give for its decision. The latter is especially intriguing, because despite Romer, Lawrence, and Windsor, it remains a bit of a mystery how the majority thinks about these questions. The central question is whether laws denying same-sex couples the freedom to marry violate the Equal Protection Clause of the Fourteenth Amendment. Those advocating this position have advanced three primary arguments in support of their view.



First, they argue that laws denying same-sex couples the freedom to marry are unconstitutional because they do not rationally further a legitimate state interest, that the real purpose of such laws is to denigrate and stigmatize a despised class of citizens, and that, like the laws invalidated in Romer, Lawrence, and Windsor, these laws therefore violate the Equal Protection Clause.



Those on the other side point out that the rational basis standard is a highly deferential one. They argue that there are, in fact, legitimate justifications for laws that limit marriage to one man and one women, including morality, tradition, promoting procreation, promoting family stability, and preserving respect for the institution of marriage.



Moreover, they argue that, even if the Court was right to find evidence of "animus" in Romer and Windsor because of the "unprecedented" nature of the laws at issue in those cases, no similar inference can logically be drawn with respect to the traditional understanding that marriage involves a relationship between a man and a woman. After all, they argue, when marriage was defined in this way many centuries ago, no one was thinking about homosexuals one way or the other. That being so, they reason, animus toward homosexuals has nothing at all to do with the traditional definition of marriage.



The second argument advanced by those challenging the constitutionality of laws denying same-sex couples the freedom to marry turns on the notion that the freedom to marry is itself a "fundamental interest." In a series of decisions over the past century, the Supreme Court has held that a law that treats people differently with respect to a "fundamental" interest, such as the right to vote, the right not to be sterilized, or the freedom to use contraceptives, violates the Equal Protection Clause unless it satisfies something called "heightened scrutiny." That is, when a law treats people differently with respect to a fundamental interest, the law is unconstitutional unless it substantially furthers an important government interest. A mere rational explanation is not sufficient.



Those who challenge the constitutionality of laws denying same-sex couples the freedom to marry maintain that such laws implicate the fundamental right to marry and that they therefore must pass heightened scrutiny review, a test that pretty much everyone agrees cannot be satisfied.



Those who defend the constitutionality of laws denying same-sex couples the freedom to marry respond that, even if the freedom to marry is fundamental, that applies only to opposite-sex couples. This is so, they argue, because for an interest to be recognized as "fundamental" it must be deeply rooted in "our Nation's history, legal traditions, and practices."



Although the right of opposite-sex couples to marry is clearly fundamental under that standard, they insist that there is no analogous fundamental right of same-sex couples to marry, because that practice can hardly be said to be deeply rooted in "our Nation's history, legal traditions, and practices."



In response, those arguing in favor of a fundamental right of same-sex couples to marry maintain that, just as the meaning of express constitutional rights, like the freedom of speech and the freedom from unreasonable searches and seizures, can evolve over time with changing circumstances, so too can the meaning of implied fundamental rights evolve over time.



The third argument of those challenging the constitutionality of laws denying same-sex couples the freedom to marry is that, because such laws discriminate on the basis of sexual orientation, they are analogous to laws that discriminate against individuals on the basis of race, national origin, gender, and similar characteristics, and therefore call forth heightened scrutiny under the Equal Protection Clause for that separate and distinct reason.



The Supreme Court has long held that laws discriminating against individuals on the basis of certain "suspect" criteria are especially problematic and are therefore unconstitutional unless they satisfy a more demanding standard of justification.



Because laws discriminating against African-Americans are the paradigm violation of the Equal Protection Clause, the Court generally considers four factors in determining whether discrimination against any particular group should be deemed "suspect": whether the group has experienced a history of invidious discrimination; whether the defining characteristic of the group is essentially immutable; whether the group can effectively protect itself against discrimination through the political process; and whether the discrimination is based on stereotyped characteristics that are not truly indicative of the group's ability to perform in society. Those who contest the constitutionality of laws discriminating against gays and lesbians maintain that such discrimination satisfies these criteria and therefore must be tested by heightened scrutiny.



In response, those who defend the constitutionality of laws discriminating against gays and lesbians maintain that homosexuality is a choice, that what homosexuals call a history of discrimination therefore is no different than a history of "discrimination" against any other group of individuals who choose to violate society's moral norms and legal strictures, that gays and lesbians have ample political power, and that homosexuality is relevant to a host of legal considerations, most obviously to marriage. Thus, in their view, laws that "discriminate" against homosexuals are no different than laws that "discriminate" against people who commit incest, or burglary, assault, or bestiality. Such laws, they insist, are completely different constitutionally from laws that discriminate against African-Americans, women, Hispanics, or Japanese-Americans.



So what should the Court do? In my view, all three of these arguments would justify a decision invalidating laws forbidding same-sex marriage, and lower courts have invoked all them in one case or another. My preferred rationale is the third - that laws discriminating against gays and lesbians are constitutionally "suspect" in ways that are similar to laws that discriminate against blacks, Hispanics, women, and, to use the World War II example, persons of Japanese descent.



Gays and lesbians have been subjected to a long history of invidious discrimination, sexual orientation is not a matter of choice, gays and lesbians have consistently had their interests dismissed and overridden in the political process, and sexual orientation has nothing to do with an individual's ability to perform in society.



Put simply, and especially in light of our history, laws that expressly discriminate against gays and lesbians, whether in marriage, child custody disputes, employment, housing, or any other context are properly understood as suspect in the sense that they are highly likely to be tainted by considerations of animus, hostility, ignorance, and prejudice. This, to me, is the deepest and truest reason for invalidating laws that discriminate against gays and lesbians.



Moreover, unlike the "marriage is a fundamental interest" and irrationality arguments, the suspect classification argument renders all government discrimination against gays and lesbians presumptively unconstitutional -- as it should be. This argument cuts to the very heart of the issue and no longer skirts around the edges of the problem. It is my hope that the Court will embrace this argument and thereby put government-sponsored discrimination against gays and lesbians to rest, once and for all.



I'd like to conclude with two final observations. First, perhaps foolishly, I am an irrepressible optimist. I tend to believe in progress, especially in the realm of discrimination. When we think back over the past hundred years, America has made great strides in addressing, though surely not solving, issues of discrimination based on race, gender, religion, and now sexual orientation.



I am proud of the role that lawyers, law professors, and judges have played in helping this progress along. It is important not to take this achievement for granted. Twenty-five years ago, no one in this room would have imagined that the Supreme Court of the United States would hold that homosexuals have a constitutional right to marry one another. In truth, this is remarkable.



It is also important to understand the central role courts have played in this progress. As of now, same-sex marriage is legal in thirty-seven states. But only 11 of those states have voluntarily chosen to legalize same-sex marriage by legislation. But for the role of courts, thirty-nine states would still forbid same-sex couples to marry.



Moreover, because almost all of those states have adopted state constitutional amendments forbidding same-sex marriage, even a majority of the citizens of those states could not legalize same-sex marriage through legislation if they wished to do so. In such circumstances, the role of courts in interpreting and applying the Constitution is essential.



My second and final point looks to the future. For most of American history religion controlled the law on issues like sexual expression, contraception, abortion, and homosexuality. Traditional Christian values dictated the content of our laws. In the last half century, though, due largely, though not entirely, to the Supreme Court, those Christian values have been pushed aside, and individuals have been freed to act on their own personal and religious beliefs, rather than dictated to by the religious beliefs of others.



This is a great achievement in a society dedicated to the separation of church and state. But it now leaves us with an interesting challenge. For our Constitution also guarantees the freedom to practice one's religion, and with the demise of the religious state, those who hold to traditional Christian values find themselves on the defensive. No longer able to dictate that others must act in accord with their religious beliefs, they now demand that they be permitted to act in accord with their own beliefs.



Hobby Lobby demands the right not to provide certain contraceptives to its women employees, Catholic priests demand the right not to marry same-sex couples, and florists, bakers, hotels owners, and restaurant owners demand the right not to participate in same-sex weddings. These are not easy questions for one who values both the separation of church and state and the freedom of religion, as I do.



But those are questions for another day. For now, we are where we are, and we are, quite simply, on the threshold on an exciting new era in human dignity.



I can't wait to see the celebrations!

Texas License Plates and the Confederate Flag

The Supreme Court heard arguments today in the case of Walker v. Sons of Confederate Veterans. The case poses an intriguing First Amendment question.



Like many states, Texas permits drivers to design specialty license plates bearing messages they want to promote. The states that do this do it largely as a way of generating income, because they charge for the privilege.



Texas has approved hundreds of different messages on its license plates, including "Choose Life" and "Fight Terrorism," but the Texas Board of Motor Vehicles balked when the Sons of Confederate Veterans sought to include an image of the Confederate flag on the plate that it had designed. The Board denied this proposed license plate under the authority of a provision that authorized it to exclude messages that were likely to offend others. Finding that this was true of the Confederate flag, it rejected the proposal.



The question is whether this was unconstitutional.



When I was a first-year law student back in 1968, one of my professors at the University of Chicago Law School, the eminent First Amendment scholar Harry Kalven, explained to us that legal reasoning is often best understood as "the process of choosing among competing analogies." The issue in Walker is a classic illustration of this insight.



As a general rule, the First Amendment prohibits the government from disadvantaging a speaker because his message might offend others. This is indeed a fundamental principle of our First Amendment jurisprudence. As the Supreme Court explained 65 years ago:

A function of free speech under our system of free expression is to invite dispute. It may indeed best serve its high purposes when it induces a condition of unrest ... or even stirs people to anger.

The court therefore made clear that the freedom to express particular messages cannot constitutionally be restricted "unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public ... annoyance or unrest."



More recently, in 2011, the Supreme Court, in an opinion by Chief Justice John Roberts, echoed this view, stating that "if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."



Applying this principle, it seems clear that Texas cannot constitutionally forbid the display of the Confederate flag because others might find it "offensive or disagreeable."



But it is not so simple. There is a competing analogy. Although the government cannot constitutionally silence a speaker because his ideas are offensive to others, it is also true that the government itself is permitted to speak in its own voice without having to provide equal voice to those who disagree with it. This is the "government speech" doctrine.



For example, the government can constitutionally erect a statue in a public park celebrating the life of Martin Luther King without also having to erect a statue celebrating the Ku Klux Klan. The government can put its own message on the state's license plate stating "Texas Is Great" without also having to put the message "Texas Sucks" on its license plate. The state can promote the message that people should not smoke without also having to promote the message that people should smoke. The Supreme Court building can display the message "Equal Justice Under Law" without also having to display the message "There Is No Equal Justice in This Court." And so on.



Thus, there are two competing ways to think about the issue in Walker. On one view, the government is silencing certain speakers because other citizens find their message offensive. This is clearly unconstitutional. On the other view, the state is deciding for itself what messages it wants to convey on its license plates, and the messages on the state's license plates are thus best understood not as the speech of individuals but as the speech of the state itself.



Those are the competing analogies: Is the government discriminating among private speakers, or is it expressing only the messages it wishes to convey? Which is the "right" analogy?



The strongest precedent in support of Sons of Confederate Veterans might be Widmar v. Vincent, decided in 1981, in which the Supreme Court held unconstitutional a regulation of the University of Missouri that allowed more than 100 student groups to meet in university facilities but refused to allow student groups to use those facilities for purposes of religious expression. The court held that the state could not constitutionally discriminate among speakers in this manner.



The strongest precedent in support of the government in Walker is Pleasant Grove v. Summum, decided in 2009, in which a town had accepted 11 privatelydonated monuments for display in its public park but then refused to accept a new monument that was offered by adherents of the Summum religion. The Supreme Court held that this was not unconstitutional discrimination because a public park can hold only so many monuments and because people understand the monuments in public parks as government rather than private speech.



So once again I ask: Which is the "right" analogy? Are the license plates displayed on private individuals' cars more like the classrooms in Widmar or the monuments in Pleasant Grove?



Time to play lawyer....

Racist Rants and the University of Oklahoma: Getting It Wrong

University of Oklahoma President David Boren has expelled two students, members of SAE fraternity, for participating in a racist rant on a bus. The rant included the following:



There will never be a nigger at SAE

There will never be a nigger at SAE

You can hang him from a tree

But he'll never sign with me

There will never be a nigger at SAE



Needless to say, such language is abhorrent. But the University of Oklahoma cannot constitutionally expel the students for this expression.



The Supreme Court has made it quite clear that public universities cannot constitutionally discipline their students for speech merely because it offends the university's sense of decency.



In Healy v. James, for example, a state college in 1969 refused recognition to a proposed student chapter of Students for a Democratic Society (SDS). The college argued that its denial of recognition was justified because SDS adhered to "a philosophy of violence and disruption." This was especially worrisome, the college explained, at a time of widespread disruption on college campuses, often accompanied by trespass, vandalism, and arson.



The Supreme Court held that the college could not constitutionally deny recognition to SDS, even though its advocacy of violence and disruption might well be "repugnant." The Court explained that "state colleges and universities are not enclaves immune from the sweep of the First Amendment." To the contrary, "the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American" colleges and universities, and in our constitutional system, a college or university "may not restrict speech or association simply because it finds the view expressed by any group to be abhorrent." The "critical line," the Court held, is whether the speech in question was likely to incite imminent lawless action. Short of that, the speech -- and the organization -- were protected by the First Amendment.



Similarly, in Papish v. University of Missouri, the Court held that a state university could not constitutionally expel a student for distributing on campus a student newspaper containing a political cartoon depicting policemen raping the Statue of Liberty and an article using the phrase "mother-fucker." Because the student was expelled for "the disapproved content" of her speech, the Court held that the university violated her rights under the First Amendment.



In light of those precedents, it seems clear that the University of Oklahoma violated the First Amendment when it expelled the SAE students for their offensively racist expression. Now, I know it may seem crazy to say that a state university cannot constitutionally expel students for such outrageous speech. But the very point of the First Amendment is that the government cannot censor people (including students) merely because it finds their speech abhorrent.



The central meaning of the First Amendment is that we do not trust the government to decide for us what we should be allowed to hear, read, see, or know. We know that, given the power to censor, and given the realities of human nature, those with the authority to censor will inevitably deny us access to ideas, information, theories, images, and arguments, not because we would necessarily find them to be stupid, pointless, offensive, dangerous, or wrong, but because they don't want us to hear them.



Of course, a commitment to freedom of speech does not mean endorsement of the views of others. One can be revolted by the rant of these students and still defend their right to be obnoxiously offensive. As Voltaire observed, and as summarized by Evelyn Beatrice Hall in her biography of the great thinker, "I do not agree with what you have to say, but I will defend to the death your right to say it." That is the essence of a true commitment to freedom of expression.



Faced even with speech we find to be odious, obnoxious, and offensive, the only response a commitment to freedom of expression leaves us is not suppression, but more speech -- speech that says "You are wrong, you are an idiot, and here is why!" As Justice Louis Brandeis explained almost a century ago, in a system of free expression, the proper response to bad speech is not censorship, but good speech.



And that is precisely what happened at the University of Oklahoma. Students, faculty, alumni, and administrators came together to affirm that the expression indulged in by the SAE students was odious, stupid, insulting, offensive, and degrading. They did what the First Amendment expects us to do -- to answer bad speech with condemnation. And in the end, the people will judge.



There are, of course, those who will argue that the speech of these students was beyond the pale. It was "hate" speech -- speech that is so vile, so degrading, so insulting, so offensive that it is beyond what the First Amendment protects. But the Supreme Court has repeatedly -- and correctly -- rejected this notion. The First Amendment denies the government -- including state-run universities -- the authority to decide that certain speech is so outrageous that it may be banned.



Now, to be clear, there are exceptions to this principle. Speech that expressly threatens particular individuals, speech that expressly harasses particular individuals, speech that expressly defames particular individuals, speech that invades the privacy of particular individuals can be restricted, both in society generally and in a university. Moreover, like any educational institution, a state university can properly regulate what speech is appropriate in a classroom. Use of the word "nigger" in a classroom when the word is irrelevant to the material being taught can be restricted.



But as the Court made clear in Healy, Papish, and other decisions, a public university generally has no more authority to regulate offensive speech on a campus and a city has to regulate offensive speech on a city street.



I join President David Boren and the University of Oklahoma in denouncing the racist rant of these students. But to expel students for what they say and think -- however odious their words may be -- violates the very constitutional principles upon which the University of Oklahoma was founded.



This was a great, if difficult, teaching moment. It is a shame that President Boren and the University of Oklahoma taught their community the wrong lesson.