Verdict Legal Analysis and Commentary from Justia Wed, 30 Jul 2014 04:51:52 +0000 en-US hourly 1 Copyright © Verdict 2013 (Verdict) (Verdict) 1440 Verdict 144 144 Legal Analysis and Commentary from Justia Verdict Verdict no no Comparing Two Federal Appeals Courts’ Decisions on Same-Sex Marriage Wed, 30 Jul 2014 04:01:03 +0000 Continue reading →]]> Same-Sex MarriageOn Monday, a panel of the U.S. Court of Appeals for the Fourth Circuit ruled that Virginia’s ban on same-sex marriages in that state violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the U.S. Constitution. This decision follows closely on the heels of a decision by a panel of the U.S. Court of Appeals for the Tenth Circuit, which came to the same conclusion just over a month ago with respect to Utah’s same-sex marriage ban.

In this column, I examine the Fourth Circuit panel majority’s reasoning striking down Virginia’s ban and compare that with the reasoning employed by the Tenth Circuit panel that struck Utah’s similar law last month. I note that the majority opinions from both courts closely track one another, both in precedents cited and in reasoning. I also discuss the similarities and differences between the dissenting opinions and argue that these dissenting opinions likely indicate the focal points of these cases if and when they reach the U.S. Supreme Court.

Bostic v. Schaefer: The Fourth Circuit Strikes Down Virginia’s Same-Sex Marriage Ban

A panel of the U.S. Court of Appeals for the Fourth Circuit held Monday that Virginia’s constitutional and statutory bans on same-sex marriage are unconstitutional. In a 2-1 decision, the panel quickly disposed of the arguments put forth by the proponents of the law, making it the second federal appeals court this summer to rule against a state’s same-sex marriage ban.

The panel first considered the threshold question whether the plaintiffs had judicial standing to bring their claims in federal court at all. Finding that they had, the court turned to a second preliminary question: whether the U.S. Supreme Court’s summary dismissal of a case in 1972 “for want of a substantial federal question” precluded the instant case. That prior case, Baker v. Nelson, involved an appeal from the Minnesota Supreme Court upholding a ban on same-sex marriage. Summary dismissals are considered to be rulings on the merits, but they do not carry the same precedential value as an opinion after briefing and oral arguments. They do, however, prevent lower courts from “coming to opposite conclusions on the precise issues presented and necessarily decided by those actions” except “when doctrinal developments indicate otherwise.” The majority found that the Supreme Court’s decisions in Lawrence v. Texas, in 2003, and United States v. Windsor, a decade later, constituted such doctrinal developments. Thus, it concluded, Baker was no longer binding.

The panel then turned to the opponents’ Fourteenth Amendment arguments. First, it considered the appropriate level of constitutional scrutiny: rational basis review or some form of heightened scrutiny. The laws’ opponents argued that the ban infringes on their right to marriage, which the Supreme Court has recognized as a fundamental right subject to strict scrutiny. The proponents agreed that marriage is a fundamental right, but argued that the fundamental right to marriage does not encompass a right to same-sex marriage and thus that the law triggers only rational basis review. The panel found that the Supreme Court’s precedents on the fundamental right to marriage do not define the rights in question as “the right to interracial marriage,” “the right of people owing child support to marry,” and “the right of prison inmates to marry”; rather these seminal cases speak of “a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right.” Thus, the panel held, the right to marriage encompasses the right to marry the person of one’s choosing and therefore includes the right to same-sex marriage. Finding that the law implicated the fundamental right of marriage, the panel applied strict scrutiny. Under this level of review, the government must show that the laws in question are narrowly tailored and necessary to further compelling state interests.

The law’s proponents put forth five interests that they argued justified the laws: “(1) Virginia’s federalism-based interest in maintaining control over the definition of marriage within its borders, (2) the history and tradition of opposite-sex marriage, (3) protecting the institution of marriage, (4) encouraging responsible procreation, and (5) promoting the optimal childrearing environment.” Even assuming that each of these reasons was indeed compelling, the panel still found that the laws prohibiting same-sex marriage were not sufficiently narrowly tailored to further any of these interests.

In reaching its conclusion that Virginia’s ban on same-sex marriage violates the Constitution, the panel notably placed great weight on the Supreme Court’s language in Lawrence and Windsor recognizing the equal legitimacy of gay couples’ intimate relationships.

Comparison to the Tenth Circuit’s Decision in Kitchen v. Herbert

At the end of June, a panel of the U.S. Court of Appeals for the Tenth Circuit issued a similar ruling striking down Utah’s same-sex marriage ban. Verdict co-columnist Joanna Grossman discusses that decision here. In that case, the majority also found that the plaintiffs had standing to challenge the state law and that Baker v. Nelson was no longer binding authority.

The law’s proponents provided four allegedly compelling state interests: “(1) fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children; (2) children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home; (3) ensuring adequate reproduction; and (4) accommodating religious freedom and reducing the potential for civic strife.”

The Tenth Circuit panel’s reasoning was very similar to that of the Fourth Circuit panel, albeit more directly critical of the law. The panel questioned the state’s purported interests, stating that “      each of the appellants’ justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples.” However, even assuming the interests are compelling, the panel found the argument “that procreative couples must be channeled into committed relationships in order to promote the State’s interests in childbearing and optimal childrearing . . . fails because the prohibition on same-sex marriage has an insufficient causal connection to the State’s articulated goals.”

I found the Fourth Circuit’s reasoning somewhat more thoroughly explained and supported as to the question whether same-sex marriage is encompassed in the fundamental right to marriage, particularly in that it more directly relied on Loving v. Virginia to reach its conclusion.

The Dissenting Opinions

Judge Paul Kelly concurred in part and dissented in part with the Tenth Circuit panel majority. He concurred only with respect to the issue of standing and dissented with respect to the treatment of Baker v. Nelson as no longer binding, the conclusion that same-sex marriage is encompassed within the fundamental right to marry (and therefore he concluded that under the rational basis test, the law should be upheld).

Judge Paul Niemeyer wrote a dissenting opinion to the Fourth Circuit panel’s majority opinion focuses on the scope of the fundamental right to marry, arguing that it does not include a right to marry someone of the same sex.

While the issue of Baker v. Nelson is certainly important and may ultimately affect the outcome of the issue if it reaches the U.S. Supreme Court, the issue of the scope of the fundamental right to marry is at the crux of both cases, as the two dissents illustrate.

It seems to me disingenuous to deny the strong parallels between these cases and Loving. The dissents both contend that the fundamental right to marry is distinguishable from a right to marry someone of the same sex, and that the latter is a “new” right that departs from history and tradition. Yet at the same time, they deny that Loving involved a similar such departure, even though marriage had historically been denied to interracial couples.

To attempt to characterize same-sex marriage as a category separate and apart from marriage as an institution is to ignore exactly what it is that gay couples seek—recognition of their relationships as equal to those of straight couples. As Justice Kennedy wrote in Lawrence, and as quoted by the Tenth Circuit majority, the drafters of the Fifth and Fourteenth Amendments “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

David S. Kemp is an attorney, writer, and editor at Justia. A graduate of U.C. Berkeley, School of Law (Boalt Hall), Kemp served as Senior Executive Editor of the California Law Review and worked as a summer intern with the Lambda Legal Defense and Education Fund, Inc.
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Federal Appeals Courts Divide Over Obamacare Subsidies—and Over “Textualism” Mon, 28 Jul 2014 04:01:07 +0000 Continue reading →]]> Gavel, Stethoscope & DollarsLast week, in Halbig v. Burwell, a divided panel of the U.S. Court of Appeals for the D.C. Circuit ruled that the Internal Revenue Service (IRS) lacked the statutory authority to provide health insurance subsidies for the millions of Americans who are subject to the Affordable Care Act’s (ACA’s) minimum coverage provision but live in states that did not establish their own health insurance “exchanges.” While professing regret over the “significant consequences” of their ruling “for the millions of individuals” who will lose their health insurance if the decision is ultimately upheld by the full D.C. Circuit and the Supreme Court, the court blamed Congress for having tied its hands.

Yet on the very same day, a unanimous panel of the U.S. Court of Appeals for the Fourth Circuit reached the exact opposite conclusion in King v. Burwell. Where the D.C. Circuit saw clear statutory language barring the federal subsidies, the Fourth Circuit saw ambiguity—and thus deferred to the IRS pursuant to the cardinal rule of administrative law permitting an agency reasonable room to fill in statutory gaps.

The issues in this latest round of Obamacare challenges are ideologically charged. Indeed, Judge Harry Edwards began his dissent from the D.C. Circuit ruling by stating the obvious: the plaintiffs’ “case is a not-so-veiled attempt to gut” Obamacare.

But intertwined with the ideological divide is a long-running methodological disagreement over how courts should read statutes. The Fourth Circuit in King and Judge Edwards in his Halbig dissent exemplified an approach known as purposivism, which holds that courts ought to construe statutes in accordance with the evident purpose of the legislature.

By contrast, the D.C. Circuit majority opinion repeatedly invoked a rival interpretive approach known as “textualism”—under which courts must give effect to clear statutory language, even if they think that the legislative purpose might be better achieved by departing from or adding to the text.

Rooted in judicial restraint, textualism in principle ensures that judges give proper deference to legislators on policy matters. But as practiced by the D.C. Circuit in Halbig, textualism is more nearly the opposite: a means of undermining electorally accountable officials. To borrow the late Justice William Brennan’s description of originalism in constitutional interpretation, the D.C. Circuit’s version of textualism is “arrogance cloaked as humility.”

State and Federal Insurance Exchanges

The ACA requires millions of Americans who do not receive health insurance through their employers or from the government to purchase qualifying private health insurance or pay higher taxes. The ACA obligates states to establish “exchanges” that vet and list qualifying plans; however, under two Supreme Court decisions from the 1990s, Congress cannot actually require states to enact or enforce a law, and so the ACA also allows that in the event that a state does not establish an exchange, the federal government will establish one for the residents of that state.

In most respects, state and federal exchanges operate identically. Last week’s rulings concerned a linguistic oddity of the ACA—a provision that authorizes the IRS to provide refundable tax credits for low- and middle-income purchasers of health insurance on exchanges “established by the State.” The IRS determined that the credits should be available for anyone eligible, regardless of whether they are shopping on a state or a federal exchange. The Fourth Circuit upheld that determination, but the D.C. Circuit panel concluded that the statutory language permitted the tax credits only in states operating their own exchanges, and not in those states where the federal government operates the exchange.

That ruling is enormously consequential because eligibility for tax credits goes into determining income levels, which in turn determine whether an individual is obligated to purchase health insurance in the first place. Without the tax credits in the federal exchange states, Obamacare could unravel, because the tax credits help ensure that there is a large pool of relatively healthy people with health insurance. Absent that pool, the ACA’s obligation on insurers to cover people with pre-existing conditions could lead to an “adverse selection” problem, whereby only sick people purchase insurance, making insurance financially unsustainable.

Purposivism Versus Textualism

Indeed, the federal government pointed to the interconnection between the tax credits and the ACA’s core purpose of expanding coverage to argue that Congress could not possibly have intended for people who receive coverage through federal exchanges to be ineligible for tax credits. In addition, the government pointed to other provisions of the ACA that appear to assume that tax credits would be available regardless of whether an exchange is state-run or federal-run.

The Fourth Circuit and Judge Edwards found these arguments sufficiently persuasive to establish that the language of the ACA was at least unclear about whether subsidies are available on federally-run exchanges. And, as noted above, such ambiguity is all that is needed to validate an otherwise reasonable agency interpretation of a statute.

But the D.C. Circuit majority would have none of it. Each of the specific provisions to which the government pointed could have some other purpose, the court argued, and thus, individually and collectively, these other provisions were deemed insufficient to overcome Congress’ failure to include specific reference to federal exchanges in the tax credit provision.

What about the broader argument that Congress must have meant for subsidies to be available on federally-run exchanges to prevent the ACA from unraveling? In a footnote, the D.C. Circuit majority half-heartedly noted an argument by the plaintiffs that Congress could have deliberately chosen to make subsidies available only on state exchanges as a means of inducing states to create their own exchanges. But even the majority did not conclude that there is any reason to think that this was Congress’s actual goal.

Instead, the core of the D.C. Circuit argument was the textualist credo that it is not the job of courts to effectuate the purposes of statutes. Why not? The best textualist answer relies on democratic principles. Legislation is typically the result of compromise among competing factions and interests, and thus serves multiple, sometimes-conflicting purposes. As the Supreme Court has said in its textualist mode, no statute pursues all of its purposes at all costs. Thus, a judge who construes a statute to effectuate what the judge regards as the statute’s single purpose will often upset the delicate balance among competing purposes that was struck by the legislature.

Stated in the abstract, textualism as just described makes sense. It functions as a reminder to judges not to substitute their views about what laws the legislature should have enacted for those laws it actually enacted.

Textualism can be quite moderate. For example, Justice Antonin Scalia—textualism’s most prominent champion—distinguishes textualism from “strict construction.” Judges should not construe statutes strictly, he says; they should construe statutes “reasonably.” Reasonable construction, moreover, pays attention to the overall statutory context, not just to the literal meaning of individual words or phrases.

Over the last several decades, the moderate version of textualism has become widely accepted, so much so that some scholars now question whether there remains any distinctively textualist position. About the only consistent difference between self-styled textualists and other judges is that the former completely abjure reliance on legislative history in construing statutes. But even judges who do not consider themselves textualists accept the caution that legislative committee reports and individual floor statements do not necessarily reflect the considered view of the legislature as a whole—especially when they conflict with clear statutory text.

Textualism Run Amok

Although moderate textualism has become mainstream, the version of textualism employed by the Halbig majority was hardly moderate. It was more like strict construction.

At every turn, the court ignored indications that Congress’s failure to include the word “federal” in its description of the insurance exchanges where tax credits would be available was simply an isolated oversight. The court also set an impossibly high threshold for overcoming what it claimed was clear statutory text.

Perhaps most galling was the D.C. Circuit majority’s sanctimonious invocation of principles of democracy. The court stated that its brand of textualism “serves democratic interests by ensuring that policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges.” In fact, it does the exact opposite.

Much of the argument for textualism assumes that judges face a choice between their own understanding of the legislature’s purpose and the understanding reflected in the text the legislature expressly enacted. But in many circumstances, there is a third actor: the executive branch of government.

Modern administrative law recognizes that in writing laws to address highly complex, often unpredictable circumstances, Congress cannot in advance specify in precise detail exactly how the law shall apply. Accordingly, as explained in the landmark 1984 Supreme Court ruling in Chevron U.S.A. v. NRDC, when faced with unclear statutory text, courts should defer to reasonable interpretations of that text by the federal administrative agencies charged with implementing the law.

Chevron deference, as it is known, rests on two main grounds. First, specialized agency personnel have expertise in their particular areas of competence that exceeds any expertise of Congress, which legislates on a very wide range of subjects. Second, unlike unelected judges who are by design politically unaccountable, administrative agencies are subject to the ultimate political control of the President.

Thus, a judge who accepts an agency’s interpretation of an unclear statute as reasonable—regardless of whether that judge would construe the statute exactly the same way if it were entirely up to her—serves democratic values. She leaves the decision in the hands of the politically accountable executive, rather than taking it for herself.

It should now be apparent why the D.C. Circuit majority’s rhetoric about democracy rings hollow. In order to avoid deferring to the democratically accountable officials in the Obama Administration, the court had to find that the language of the ACA clearly forbids tax credits for health insurance purchased on federally established exchanges, even in the face of arguments that, taken as a whole, the ACA clearly requires such tax credits.

The determination of what counts as clear statutory text is the Achilles heel of the brand of aggressive textualism practiced by the D.C. Circuit in Halbig. Statutory text can sometimes be clear, even when it governs complex circumstances, but it is least likely to be clear in the sorts of cases that reach the federal appeals courts because, by definition, those cases produced sharp disagreement.

At least in the agency context, aggressive textualism ends up rehearsing the very flaw that its proponents attribute to purposivism: it substitutes the views of judges for those of democratically accountable officials. Resting that judgment on a fictive statutory clarity in no way mitigates the damage.

Michael C. Dorf, a Justia columnist, is the Robert S. Stevens Professor of Law at Cornell University Law School and the principal author of The Oxford Introductions to U.S. Law: Constitutional Law. He blogs at
]]> 0 0:12:13 Cornell University law professor Michael Dorf discusses two federal appeals courts’ recent diverging decisions over Obamacare subsidies. Dorf contrasts the method of statutory interpretation used by the majority of a panel of the U.S. Court of Appea[...] Cornell University law professor Michael Dorf discusses two federal appeals courts’ recent diverging decisions over Obamacare subsidies. Dorf contrasts the method of statutory interpretation used by the majority of a panel of the U.S. Court of Appeals for the D.C. Circuit, which struck down the subsidies, with that of the Court of Appeals for the Fourth Circuit, which upheld them. no no
Nixon’s Uses, Abuses and Muses on the Supreme Court Fri, 25 Jul 2014 04:01:05 +0000 The Nixon Defense: What He Knew and When He Knew It. Continue reading →]]> The Nixon DefenseAfter spending four years transcribing all of Richard Nixon’s secretly self-recorded Watergate related conversations, about a thousand of them, and digesting them into narrative and dialogue for a book, The Nixon Defense: What He Knew and When He Knew It, I am deeply steeped in his presidency. Indeed, I know much more about him and his administration now than when I served as White House counsel.

While Nixon was not the first, nor certainly the last, president who sought to impose his politics on the U.S. Supreme Court, I came across information when examining his true role in Watergate based on his recorded conversations. It was the Supreme Court that effectively ended Nixon’s presidency, when it ruled against him unanimously forty years ago to the day—July 24, 1974—that I am writing this column. So I thought I might share some of the new information I discovered regarding Nixon’s uses, abuses and muses on the high Court.

Nixon’s Influence on the Court

Nixon campaigned for the presidency claiming he wanted to change the Supreme Court. And he did. Few presidents have had as great an influence on this institution as did Nixon. When it was all said and done he appointed a Chief Justice and three Associate Justices—including one (William Rehnquist) who would later become Chief Justice. As I wrote in my first book based on Nixon’s tapes, The Rehnquist Choice, Nixon not only filled four seats; he created a vacancy by aggressively pursuing a sitting Justice, Abe Fortas, whom he forced from the bench with a threat of a criminal investigation against his wife and a former law partner.

Nixon had hoped to create even more vacancies he could fill. He used proxies, like House Minority Leader Gerald Ford, to go after others. For example, Ford tried to concoct an impeachment proceeding against Justice William O. Douglas to force him off the Court. But Douglas refused to be intimidated off the Court, and Ford had no real case against him. Yet Nixon’s influence on constitutional law emanating from the Court he reshaped was anything but accepting of his often-radical politics.

The Nixon Justice Department, on a regular basis, aggressively pursued ideologically driven cases before the Supreme Court, but with limited success. In fact, these efforts occasionally backfired. I will mention but a few. Like the landmark ruling in June 1972 in United States v. U.S. District Court, better known as the Keith Case, named after the U.S. District Court Judge who rejected the claim of the Nixon Justice Department that warrantless wiretaps could be undertaken with the simple approval of the Attorney General—without any statutory basis, rather as part of the president’s inherent powers.

At the time, the Nixon Administration’s contention was so over-the-top that their own Solicitor General, Erwin Griswold, former Dean of Harvard Law School who had been appointed S.G. by President Lyndon Johnson but remained on in the Nixon Justice Department, did not want his office to argue the case before the Supreme Court. So instead the case was argued by Assistant Attorney General Robert Mardian, a rightwing ideologue who did not argue law, for he had none, rather equated the president to a king, and claimed he had powers that trumped the Fourth Amendment. Nixon lost in a unanimous ruling issued on June 19, 1972—two days after the arrests of Nixon reelection committee burglars at the Watergate.

There was a string of landmark rejections of Nixon’s philosophy, actually enough to fill a book. Two such cases that could fill their own chapters make the point: New York Times v. United States (1971) and United States v. Nixon (1974), mentioned above. Both rulings rejected Nixon’s thinking. In New York Times v. United States, the Nixon Justice Department—once again it was the conservative ideologue Bob Mardian—largely hoodwinked Solicitor General Griswold, and convinced him that the leaking of the Pentagon Papers, a study of the origins of the Vietnam War undertaken for LBJ, posed a dire threat to the nation’s national security. A six-Justice majority, many of whom personally examined the leaked documents, correctly saw they were not a threat to national security, and refused to set aside the First Amendment in the name of prior restraint demanded by the government.

Suffice it to say, Nixon moved the Supreme Court philosophically to right, but not to the radical right that many of his own beliefs embraced.

Nixon’s View of the Supreme Court

In listening to countless hours of Nixon, and I had to review even more than the thousand conversations my graduate student assistants and I transcribed, I found frequent mentions of the Supreme Court. While I was not searching for this information, often I could not miss it because it came up in conversations with which I was interested. Since the book will be released on July 29, and I will be talking about it with NPR’s Diane Rehm Show on July 28, I am exercising the author’s privilege to leak a few tidbits here, matters relating to the Supreme Court, which I found both troubling and telling.

Because Nixon was not getting the kind of rulings he had hoped for from his appointees, he seemed to hold the Court in minimal high esteem. This became clear in both his words and actions. Nonetheless I was surprised with his actions relating to one of the highest profile cases pending during the 1972 presidential election, where he authorized highly improper behavior in the handling of the criminal case against Daniel Ellsberg, which was being prosecuted in Los Angeles. (I was also surprised at his words, but I will come back to them because they were not new to me.)

Ellsberg was being criminally prosecuted for violation of the Espionage Act of 1917. Nixon’s chief domestic adviser (and former White House counsel), John Ehrlichman told Nixon he did not believe the government could win the case against Ellsberg. Nonetheless, Nixon had wanted the prosecution to go forward. Then, after the case had commenced in California, Ellsberg’s attorneys requested the proceedings be stayed, because they did not believe the government had been fully forthcoming in reporting whether or not they had wiretapped Ellsberg—information to which Defendant Ellsberg was entitled. When the U.S. District Court for the Middle District of California refused to grant the stay, Ellsberg’s attorney went to the Associate Justice who had jurisdiction over this trial court: William O. Douglas, who granted the stay.

Ehrlichman, however, did not want the Ellsberg case to go forward until after the 1972 election. So he instructed the Justice Department not to push to resume the trial. But more importantly, as he informed Nixon, he was going to make certain the full U.S. Supreme Court did not overturn the Douglas stay.

During an Oval Office conversation on August 3, 1972, Ehrlichman told the president, “I’m going to talk to [Chief Justice Warren] Burger this week, and I would be inclined to indicate to him that this is to your advantage not to have the Ellsberg case tried until after the election. Unless you have serious objection, I’m going to give him that signal.” Nixon agreed. And it was done. It was, of course, a highly improper ex parte contact by Ehrlichman, not to mention the Chief Justice had to know that Ellsberg’s attorney should have been present as well.

Ultimately, the extralegal activities relating to Ellsberg backfired. Not only had Ehrlichman authorized an illegal “covert operation” to obtain information to try to smear Ellsberg, but at the very moment he was getting the Chief Justice to keep the stay in place while Ellsberg’s lawyers pressed the government for wiretap information, John Ehrlichman was sitting on that information. The Ellsberg wiretaps were sitting in his White House safe.

The Supreme Court Turns on Nixon

On February 28, 1973, when I was meeting with Nixon—and such meetings were rare, for I reported to chief of staff Bob Haldeman and Ehrlichman rather than to the president—our discussion turned to future potential vacancies on the Court. (When vacancies occurred my job was to interview and vet the potential nominees, but I was not really involved in the selection process. Although several of those I vetted were clearly unqualified so they were passed over.) That February 28 conversation prompted Nixon to give me his take on the Court.

When I mentioned I had learned that Justice Thurgood Marshall was in poor health, based on information a former law clerk had shared with me, Nixon noted, “Marshall, of course, is a black.” Then the president added, “He is so God damn dumb. We can get one that is as bad as he is,” Nixon added, and proceeded to name several black candidates he might consider for the Court. He noted they might not be towering figures, but said, “[W]ho the hell is a towering figure on that Court? I don’t have to say that Douglas has not got a brain; [William] Brennan’s a boob; Thurgood Marshall’s a boob; [Byron] Whizzer White is better than ordinary, and he’s above average; Potter Stewart is a weak man, Potter’s a nice fellow but weak and not strong, for some thing happened to him since he’s been here.”

Nixon next turned to his appointees: “Our own people, Blackmun is slightly above average; [Chief Justice] Burger is way above average, because of his administrative abilities; [Louis] Powell is way above average. And that’s the bulk of it.” He had missed one, so I asked, “And Rehnquist?” Nixon quickly declared, “Rehnquist is the top.”

But the most historic case that Nixon asked the Court to resolve was the question of his power as president to withhold information from a grand jury relating to Watergate. The Watergate Special Prosecutor subpoenaed some 64 conversations, and Nixon refused to turn them over. It was that 8 to 0 ruling that ended his presidency in United States v. Nixon. (Associate Justice Rehnquist was the only Nixon appointee who recused himself in that case.) That ruling ended the bogus defense that he had known nothing of Watergate until I had told him on March 21, 1973, when I warned him there was a cancer on his presidency. It has taken me some 40 years to learn why Nixon came up with this defense, and to unravel it I had to understand his day-by-day role in Watergate from the outset.

More than answering historical questions, however, I found a surprising degree of human drama, much more than I had expected. This made it interesting to research, and hopefully makes it more than a bit of extraordinary history to read. While I knew only too well the general outlines of the story, I did not know the details, nor did I anticipate learning much human nature in digging out this account, including how federal judges and justices can think for themselves when given lifetime appointment.

John W. Dean, a Justia columnist, is a former counsel to the president.
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Burwell v. Hobby Lobby Strikes Again, But Wisconsin Insurance Commissioner Strikes Out Thu, 24 Jul 2014 04:01:34 +0000 Burwell v. Hobby Lobby Stores Inc. to that state’s law. Hamilton critiques the interpretation as misunderstanding the federal Religious Freedom Restoration Act (RFRA) and calls upon state courts not only to correctly understand the scope of the Hobby Lobby decision, but to reject the Hobby Lobby majority’s reasoning when interpreting their own state’s laws. Continue reading →]]> U.S. ConstitutionThe effects from the Supreme Court’s interpretation of the Religious Freedom Restoration Act (RFRA) in Burwell v. Hobby Lobby are now rippling through the country. Most recently, the Wisconsin Insurance Commissioner applied the decision in a way that further undermines women’s access to reproductive health care and that violates the Constitution.

A Short History of Women’s Health Care Coverage

The Affordable Care Act’s (ACA) contraception mandate was not a new innovation in health care law. Health insurance plans in many states—when health insurance was still primarily a state power—did not fully cover many important medical services for women. State by state, health advocates pushed governments to require insurance companies to include within coverage health care ranging from mammograms to contraception. Many states did so, including Wisconsin, which enacted WI Stat. § 609.805 and § 632.895(17), which mandate the provision of reproductive health care to women.

Conservative lawmakers in Wisconsin have tried to enact a religious exemption to this provision of women’s medical care but have so far not succeeded. Thus, the law of Wisconsin is that women must be provided contraception coverage in health care plans.

The Federal RFRA May Not Be Used to Disable State Law

Long before Hobby Lobby was decided, in 1997, the Supreme Court held that RFRA was unconstitutional in Boerne v. Flores. At a bare minimum, the decision held that RFRA may not be imposed to disable state laws, because it is a severe violation of federalism and the Constitution’s inherent limits on the federal government. The Court held that RFRA’s extreme and onerous standard could not be imposed on the states. The result was that RFRA may only be applied to federal law, if at all.

It is my view that RFRA is unconstitutional in all of its applications, not simply as applied to state laws, because it violates the separation of powers principle embodied in the Constitution, Article V’s constitutional amendment procedures, and the principle of separation of church and state. But that is a debate for another day and not relevant here.

The Hobby Lobby decision did nothing to change this constitutional reality. The Court applied RFRA to federal law, the ACA’s contraception mandate, and held that RFRA shields for-profit nonreligious corporations from the federal ACA. The decision was only an interpretation of this unfortunate federal statute, which was not mandated by the Constitution, but rather a sui generis addition to free exercise law. Indeed, the Court made it quite clear that it was not holding that the First Amendment mandated an exemption for religious business owners to deprive their employees of coverage for ordinary medical care. In other words, the Court found that Hobby Lobby had a statutory right, not a constitutional right, to block certain medical coverage.

The upshot is that the decision had no effect on state laws mandating health coverage for women, or any other state law.

Wisconsin Commissioner of Insurance Applies Hobby Lobby Unconstitutionally

The Wisconsin Commissioner of Insurance earlier this week announced that it would no longer impose the state’s contraception mandate on religious employers, because of the Hobby Lobby decision, saying that the state law was “pre-empted.” That is simply wrong, and a number of organizations are saying just that, including the Freedom from Religion Foundation.

This is not how Hobby Lobby can affect state laws.

How Hobby Lobby Could Affect State Laws

The Hobby Lobby decision could, however, affect state laws in other ways. While it is not binding on any state law, in those states where a state RFRA has been enacted, the state courts could rely upon it for their reasoning. That is not unconstitutional, though it would be unfortunate to see the Court majority’s far-fetched interpretation also expanding the state versions of extreme religious liberty. State courts should be acutely aware that Hobby Lobby was decided by a deeply divided Court by a vote of 5-4.

State courts could reasonably reject the Court majority’s interpretation of RFRA’s language. First, they can and should hold that a RFRA does not and should not grant rights to for-profit nonreligious corporations. The federal RFRA now does because five members of the Court said so, while four maintained that it should not. State law does not mandate the same result.

Second, they can and should hold that no plaintiff can satisfy the “substantial burden” requirement of a RFRA by invoking what amounts to an attenuated, psychic burden like Hobby Lobby’s.

Third, they can and should hold that no state RFRA claimant can use a state RFRA for purposes of imposing a religious actor’s beliefs on others, as Hobby Lobby’s owner’s beliefs have now been foisted on its employees. The Hobby Lobby majority forced RFRA into a violation of the separation of church and state with this element of its reasoning.

Why can they do this? Because the federal RFRA is a mere statute, and so are the state RFRAs. Despite the pervasive “rights talk” about “religious liberty” by RFRA supporters, the religious liberty accorded by these statutes is neither necessary nor constitutionally required.

The one certainty amidst the post-Hobby Lobby uncertainty is that state governments may not treat the decision as a necessary threat to state laws. Under Boerne, RFRA may not threaten, pre-empt, or invalidate state law.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts,, and statutes of limitations for child sex abuse, Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is
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What Counts as an Abortion, and Does It Matter? Wed, 23 Jul 2014 04:01:28 +0000 Burwell v. Hobby Lobby Stores Inc., and the nature of the respondents’ claim that IUDs and morning-after pills are abortifacients. Colb analogizes to the distinction between the culpability of direct violence and failure to rescue in order to illustrate that the respondents’ claims are moral rather than factual in basis. Continue reading →]]> Gavel and PillsIn the U.S. Supreme Court’s recent case of Burwell v. Hobby Lobby, the respondents challenged their federal obligation, pursuant to regulations promulgated under the Patient Protection and Affordable Care Act (“ACA”), to include coverage in their employees’ health insurance package for four forms of birth control that the respondents consider abortifacients.  According to the respondents, the Religious Freedom Restoration Act (“RFRA”) protects them from having to violate their religious commitments by funding abortions through employer contributions.

By a 5-4 majority, the Supreme Court held for the respondents, for-profit closely-held corporations, ruling that requiring coverage for contraception methods that the corporations’ owners regard as abortions imposes a substantial burden on the respondents’ exercise of their religion, and the requirement at issue is not the least restrictive means available for serving the government’s (assumed) compelling interest in ensuring women’s access to contraception.

One of the underdeveloped factual issues that arose in Hobby Lobby is the question of whether in fact the two types of IUD and two forms of the morning-after pill, FDA-approved methods of contraception to which the respondents demanded coverage exemptions, do factually qualify as abortifacients.  The Court deals with this question in the opinion by saying of one set of respondents, for example, that “the Hahns believe that ‘human life begins at conception.’  It is therefore ‘against [their] moral conviction to be involved in the termination of human life’ after conception, which they believe is a ‘sin against God to which they are held accountable.’ . . .  The Hahns have accordingly excluded from the group-health-insurance plan they offer to their employees certain contraceptive methods that they consider to be abortifacients.”  The Court adds that “HHS [the U.S. Department of Health and Human Services] acknowledges [that the challenged methods of contraception] may result in the destruction of an embryo.”

Since the Supreme Court handed down its decision in Hobby Lobby, some commentators (such as this one) have objected to the Court’s deference to what they consider to be a factually inaccurate characterization of the challenged birth control methods.  Because the morning-after pill is not actually an abortifacient, according to this objection, the Supreme Court should not have simply accepted the claim that it is.  My colleague and fellow columnist, Professor Michael C. Dorf, here offers a very compelling response to this “you have the right to your own opinion but not to your own facts” analysis.

Dorf contends that courts properly defer to sincerely held factual beliefs of religious claimants, inasmuch as religious belief encompasses not only moral but factual teachings as well, and courts ought no more to be rejecting the “truth” of the latter than they ought to be rejecting the truth of the former, in considering whether complying with federal law does or does not substantially burden religious exercise.

Regardless of how one resolves this issue—of whether sincerely held religious beliefs receiving protection under RFRA include only value judgments or factual assessments as well—it remains useful to examine whether the Hobby Lobby respondents’ claim that IUDs and morning-after pills are abortifacients is really a factual claim, a values claim, some combination of the two, or none of the above.  Considering this question may also have implications for how we think about abortion more generally.

The Respondents’ Claim About Four FDA-Approved Methods of Contraception

Let us begin by looking at what the respondents claim about two types of IUDs and two forms of the morning-after pill, four contraceptive methods covered by regulations under the ACA to which the respondents sought an exemption.  According to the Supreme Court’s majority opinion, the respondents believe that life begins at conception.  This belief is common to those who consider themselves part of the pro-life movement:  they believe that the value we ascribe to a human life attaches to that life at the moment that a sperm cell fertilizes an egg cell.

Once conception occurs, on this view, terminating the life of a zygote, an embryo, a fetus, or a born individual has the same moral weight, regardless of chronological age.  Stated differently, just as most of us consider it no better to murder a one-year-old baby than it is to murder a three-year-old toddler, a person who is pro-life considers it no better to terminate the life of a fertilized egg than it is to terminate the life of a third-trimester fetus or a newborn baby.

The religious belief that life begins at conception is not specifically a factual belief about IUDs or other methods of birth control.  It is a moral belief about the zygote or embryo.  Nonetheless, this belief does provide a standard for evaluating whether participating in a particular method of birth control does or does not violate one’s religious commitments.

The standard is this:  if a method of birth control can operate by killing a developing human after the point of its conception, then using that method of birth control qualifies as an abortion and accordingly violates the religious commitments of the pro-life individual.  If method X, for example, can operate by killing a fertilized egg or embryo, then a person who believes that life begins at conception would consider method X to be an abortifacient.  The remaining factual question (on the basis of which some commentators have criticized the Court for improper deference) is whether the methods challenged by the respondents do in fact work by killing a zygote or an embryo.

The Medical Definition of Abortion

As a general matter, the medical profession defines an abortion as the termination of a pregnancy, and doctors in turn typically define a pregnancy as a condition in which an embryo has implanted itself in a woman’s uterus, where it continues to grow and develop.  This definition has some unremarkable implications, including that when a fetus dies inside a pregnant woman’s womb, then the woman in question is no longer pregnant, and the removal of the dead fetus from her body does not qualify as an abortion.

More relevant to our purposes is the further implication of this medical definition that even after fertilization has occurred, there is no pregnancy—and there can therefore be no abortion—before the embryo has implanted in the woman’s uterus.  This means that even if a method of birth control works some of the time by killing a fertilized egg that has not yet begun the process of implanting itself in the woman’s uterus, then that method of birth control, under the standard medical definition of abortion, falls outside the “abortifacient” category.

The consequence of this definitional divide between a pro-life individual’s thinking and the standard medical thinking is that a method of birth control that works by killing a fertilized egg prior to implantation is an abortifacient from the pro-life individual’s perspective but is not an abortifacient from the standard medical perspective.  In such a case, there could be an apparent dispute between a pro-life individual and a typical doctor about whether an abortion has taken place, but the dispute would not, at bottom, be factual at all.  This is because both disputants would agree that the (hypothetical) method kills the fertilized egg.

At most, the disagreement might involve the moral status of killing an unimplanted zygote or embryo, and calling the act an “abortion” might be a way of saying, “I regard the act as morally equivalent to any other killing of a human who might be much older than a zygote or an embryo.”  Even if one were unwilling, under RFRA, to defer to inaccurate factual claims, then, the pro-life view about the hypothetical method of birth control would plainly be a normatively and religiously controversial view, rather than a factually controversial view.

The medical definition of abortion arguably does not itself even embrace a moral view about the status of the fertilized egg.  A particular gynecologist might consider herself pro-life and might therefore regard a method of birth control that operates by killing a fertilized egg to be a form of murder.  Yet the gynecologist would nonetheless understand that the particular murder does not fall within the medical definition of abortion (much as shooting a teller at a bank is a form of murder that would not fall within the medical definition of abortion).

The disagreement, in this case, is semantic rather than being either factual or normative.  That is, the pro-life individual and the doctor use the same word, “abortion,” to mean different things for different purposes, but everyone has in mind the same empirical facts (about whether or not a fertilized egg has been killed) and perhaps even the same normative assessment of those facts.

Consider, by analogy, the question of how many weeks pregnant a woman is.  Under the medical approach to counting the weeks of pregnancy, one begins the clock on the first day of the woman’s last menstrual period.  On the definition that proceeds from the medical approach, pregnancy typically lasts 40 weeks.

Pro-life advocates, by contrast, commonly count the number of weeks into which a pregnancy has progressed from the date of conception, which typically occurs approximately two weeks after the first day of the woman’s last menstrual period.  On this definition, pregnancy lasts approximately 38 weeks.  Notwithstanding the apparent disagreement (40 weeks versus 38 weeks), however, a pro-life advocate and a doctor would not differ here on the amount of time that typically passes between conception and birth.  The “disagreement” would, again, be semantic.

Potential Normative Implications of Different Definitions of Abortion

Though the disputes above can be characterized as disputes about definitions rather than disputes about facts or morality, there are subtle moral issues that emerge upon closer scrutiny.  Consider the meaning of the Hobby Lobby respondents’ definition of abortion.  According to the respondents, the challenged contraceptive methods are objectionable because—as HHS apparently acknowledges—these methods could potentially have their intended effect after an egg has been fertilized.

One way in which this might happen, if one accepts the factual claim that it sometimes does happen (a claim that many dispute), is that fertilization would occur before the morning-after pill is taken, and the pill could then prevent the already-developing embryo from implanting in the woman’s uterus, thereby making it impossible for the embryo to continue to develop into a baby.  The morning-after pill, if it in fact operated post-conception, could thus prevent implantation, perhaps by hormonally making the uterine lining a less hospitable environment for implantation than it would otherwise have been.

For purposes of our earlier examination of the competing definitions of abortion, we stipulated that a hypothetical birth control method “killed” the fertilized egg prior to implantation and that therefore, whether or not the medical definition of “abortion” applied, the factual claim that the contraception method killed a post-conception human entity would be accurate.  For someone with a pro-life set of values, the killing in such a case would be morally indistinguishable from the killing that would occur if an already-implanted embryo were killed with a saline solution or terminated by some other uncontroversially classified method of abortion.  But if, as some claim, the morning-after pill operates after conception by making the uterus inhospitable to implantation, then this method is arguably morally distinct from our hypothesized method that directly kills an embryo.

We could have a long philosophical discourse here about the differences between “killing” someone and allowing someone to die, but suffice it to say that our legal system (and most systems of morality) do draw a distinction between the two.  There is, in other words, a moral (and legal) consensus that directly killing someone, all things being equal, is morally more culpable than allowing someone to die without intervening.  This is why the people who watched Kitty Genovese being murdered in Queens, New York, in the 1960’s, and (allegedly) did not call the police or otherwise attempt to stop the crime were much less responsible, from a moral standpoint (and not at all responsible, from a legal standpoint), for the murder than the man who repeatedly stabbed Genovese until she died of her wounds.

There have long been debates about whether abortion should be considered direct killing or a failure to intervene.  (Judith Jarvis Thomson developed the original “violinist” analogy elaborating the insight that abortion might best be understood as a failure to help rather than as direct violence).  I have offered my own, somewhat different, thinking on the subject in chapter 7 of my book, Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans, a chapter entitled “Are You Against Abortion?.”

Even among those who believe that (1) life begins at conception and (2) abortion generally qualifies as “killing” rather than “letting die,” it is still possible to take a different position from that of the respondents on a method of birth control that makes the uterus less hospitable than it would otherwise have been to an embryo “attempting” implantation.  One who believes that killing is distinct from letting die might view the ingestion of hormones that prevent the further thickening of the uterine lining as something very different from actively killing the embryo (for example, by ingesting a poison that targets embryos).  One could view the disrupted thickening of the uterine lining to make it less hospitable to implantation as akin to shutting the door to one’s house when someone outside is running toward the door seeking refuge from dangerously low temperatures outside.  The person will die of exposure if not admitted into the house, but refusing to admit the freezing man is not, by most assessments, the moral equivalent of shooting the man dead with a gun or even of taking a man who is already warming up inside one’s home and throwing him out into the cold.

For a closer analogy to making the uterine lining inhospitable to implantation, consider the plight of an embryo that has been produced through in vitro fertilization and is now ready for implantation.  Assume that the couple that produced the embryo has decided to split up and agrees that the embryo should not be implanted after all.  The woman in this case, like the woman who uses a contraceptive method that disrupts the thickening of her uterine lining, is making her uterus “inhospitable” to implantation by refusing the embryo’s insertion (and by thus preventing its implantation).  Without a place to go, the embryo dies.

Does this mean that the woman who (with her partner) refuses to have the embryo inserted for implantation is directly killing the embryo?  Would anyone argue that she is having an abortion, by refusing to have the embryo inserted?  There is an embryo involved, and for those who believe that life begins at conception, there is therefore an entity with moral weight equivalent to that of a newborn baby at issue.  Yet there has been no pregnancy, and it would thus seem a stretch to say that there has been an abortion.  If there is a case of “letting die” rather than “killing” in the context of embryos, this would appear to be such a case.

The in vitro fertilization situation, as I explained in an earlier column, illustrates an often-overlooked difficulty one faces when attempting to argue that the use of post-fertilization but pre-implantation birth control should qualify as an abortion.  The difficulty is not about whether the zygote is or is not worthy of moral consideration.  If an embryo is worthy of moral consideration after implantation has occurred, then there is no reason to deny the same embryo equivalent moral consideration just prior to implantation.  It has not changed, after all; only its environment has changed.

At the same time, however, prior to implantation, the person who refuses entry into her uterus is not killing the embryo so much as refusing to rescue it from the death it will inevitably face at its stage of development without a uterus in which to implant.  Just as it would be peculiar to say that the woman who refuses to have a test-tube embryo implanted is “killing” the embryo, it is strange to say that preventing implantation is tantamount to killing.

One can, of course, take the position that whenever one is in a position to provide refuge to a life that would otherwise be lost “but for” the intervention, and one fails to intervene, one is “killing” the one to whom one fails to provide refuge.  But that is not ordinarily how our law or our moral systems work.  And it is for that reason that one might legitimately have qualms about the respondents’ claim that their religious belief that life begins at conception entails the proposition that the morning-after pill is an abortifacient that literally kills embryonic life.  The qualms are moral rather than factual, though—they revolve around the morality of refusing to rescue, and the qualms arguably implicate the respondents in moral hypocrisy rather than (or rather than only) in empirically implausible contentions about the nature of four methods of contraception.  It may be, then, that in assessing the sincerity of the respondents’ moral beliefs, such hypocrisy could provide an(other) reason for rejecting the ultimate outcome in Hobby Lobby, if the respondents are among the vast majority of people who distinguish between direct violence and a failure to rescue.

Sherry F. Colb, a Justia columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her most recent book, Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans, is currently available on Amazon.
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Hard Labor: New Pregnancy Discrimination Guidance From the EEOC Tue, 22 Jul 2014 04:01:05 +0000 Continue reading →]]> Pregnant EmployeePregnancy discrimination in the workplace is an intractable problem, one that has resulted in a startling number of claims each year to the Equal Employment Opportunity Commission (EEOC)—rising at a faster rate than women are joining the workforce—and increased media attention. But it has also led to extensive litigation that raises, in a variety of contexts, the question of what constitutes illegal pregnancy discrimination under federal law.

In light of these developments, the EEOC has just issued new Enforcement Guidance on pregnancy discrimination—its first in several decades—to explain its interpretation of applicable statutes. In this column, I’ll explain key aspects of the guidance, along with its relevance to Young v. UPS, a pregnancy discrimination case that the U.S. Supreme Court has just agreed to hear.

Federal Protection Against Pregnancy Discrimination at Work

The heart of pregnancy discrimination law is the Pregnancy Discrimination Act (PDA) of 1978, signed into law by President Jimmy Carter in response to a bizarre 1976 opinion from the U.S. Supreme Court, General Electric v. Gilbert, in which it held that pregnancy discrimination was not a form of sex discrimination under Title VII of the Civil Rights Act of 1964, the main federal anti-discrimination law. This ruling, along with others, left in place a regime in which public and private employers could openly discriminate against pregnant women by refusing to hire them, forcing them to quit upon becoming pregnant, refusing to accommodate the physical effects of pregnancy, or changing the conditions of employment to suit the needs of the employer. (More details on the developments leading up to the PDA are available here.)

The PDA was designed to disrupt the status quo—to open workplace doors to pregnant women, and to force employers to abandon those policies and practices that falsely stereotyped pregnant women as incompetent or reflected normative assumptions about the impropriety of pregnant women or mothers in the workforce.

The first clause of the PDA amended Title VII to make clear that discrimination on the basis of “pregnancy, childbirth, or related medical conditions” is unlawful as a form of sex discrimination under Title VII—expressly repudiating the holding in Gilbert. This eliminated the most common exclusionary policies (e.g., pregnant school teachers must leave by the fourth month of pregnancy) and provided a basis for challenging employment decisions based on bias against pregnant women or the application of stereotypes about their competence, abilities, or proper place.

The second clause, which provides that pregnant women have the right to be treated the same as others who are “similar in their ability or inability to work,” was designed to provide a comparison group by which pregnant woman could gauge their right to benefits or accommodations. Pregnant women have no absolute right to accommodations, but if temporarily disabled workers receive them, then pregnant workers are entitled to them as well. Moreover, under a 1987 ruling from the Supreme Court in California Federal Savings v. Guerra, the second clause provides a floor but not a ceiling on benefits and accommodations, so employers can choose to treat pregnant workers more favorably than comparably disabled workers. The second clause, however, has been routinely misinterpreted and misapplied by lower courts, leading to both great confusion about its scope and meaning and a dilution of the rights Congress intended to bestow.

By its terms, the second clause of the PDA provides, at best, a comparative right of accommodation. It does not give pregnant women any absolute right to have pregnancy-related disability accommodated with leave or modifications to the job. Instead, it creates a comparison group to whom pregnant women can compare themselves to gauge their possible entitlement to an accommodation. If no one gets benefits or accommodations, pregnant women have no right to them either. But, the straightforward language of the second clause would suggest, if temporarily disabled workers receive accommodations, then pregnant women must also receive them.

The EEOC’s New Enforcement Guidance: What Is “Pregnancy”?

The EEOC Guidance first tackles the question that has plagued courts of what falls within the category of “pregnancy, childbirth, and related medical conditions.” Work can potentially conflict with all aspects of the reproductive process. Lawsuits have raised specific questions about whether discrimination on the basis of contraceptive coverage, infertility, and lactation fall within the PDA. Confusion about the proper scope has led to some sensible rulings—like the Seventh Circuit’s ruling in Hall v. Nalco that discrimination against a female employee because she was seeking fertility treatment is actionable—and some mysterious ones—like that of a federal district court in EEOC v. Houston Funding holding that lactation discrimination is not covered because lactation is not related to pregnancy.

The Guidance takes an appropriately broad approach to defining discrimination under the PDA, given the text of the statute and the Supreme Court’s prior opinions. While an employer is not liable for pregnancy discrimination if the woman’s condition was neither revealed nor obvious, it is liable for adverse decisions based on stereotypes or assumptions about a pregnant woman’s capacity to work, as well as for decisions motivated by a past pregnancy. Even before a pregnancy occurs, employers cannot discriminate on the basis of potential pregnancy—fertility—or reproductive risk. They also cannot discriminate on the basis of a woman’s intentions to become pregnant, nor her seeking of fertility treatment to become pregnant. This does not mean that employers must facilitate employee efforts to become pregnant—it tacitly approves court decisions holding that the exclusion of fertility treatments from employer-provided insurance does not violate Title VII—but only that they cannot single out or punish employees based on false assumptions about how an existing or future pregnancy might impact a woman’s capacity to work or because of animus against an employee who has made these decisions. Employers must also, under the second clause of the PDA, provide leave, benefits, or accommodations for these conditions to at least the same degree it provides them for comparable medical conditions.

The Guidance also weighs in on contraception, an issue that has been controversial under discrimination law and also in recent litigation about Obamacare. In the Guidance, the EEOC concludes, as several federal courts have, that an employer’s exclusion of prescription contraceptives—all of which are used by women only—from an otherwise comprehensive insurance plan constitutes illegal sex discrimination. With respect to lactation, the Guidance concludes that discrimination against an employee because she is breastfeeding is actionable and that the comparative right of accommodation means that employers must accommodate lactation at least to the same degree they accommodate similar medical conditions. (In addition to having rights under Title VII, women have rights under Obamacare to reasonable break time and a private place to pump breastmilk.) Finally, although the PDA expressly states that employers do not have to provide insurance coverage for abortion, the Guidance concludes that they cannot take adverse action against a woman for seeking an abortion, nor encourage her to get one in order to keep her job.

The Enforcement Guidance and Discriminatory Light-Duty Policies

A second key question covered by the Guidance relates to an employer’s failure to accommodate pregnancy-related incapacity despite accommodating similar incapacity for at least some other workers. In the last decade, there have been a number of lawsuits raising questions about the scope and meaning of the second clause of the PDA. The focus of these lawsuits has been the legality of employer policies that provide light-duty assignments to workers who are injured or disabled on the job (and sometimes to other groups of workers as well), but not to those who are injured off the job. (Lawsuits of this type are discussed here, here, here and here.) These policies do not, by their words, exclude pregnancy, but they are drawn in a manner such that workers with pregnancy-related disability cannot obtain light-duty accommodations. This is so even when the workers who do receive light-duty accommodations are, in every way, “similar [to pregnant women] in their ability or inability to work.”

Yet, despite the obvious violation of the PDA’s second clause, several federal appellate courts have upheld light-duty policies of this nature. Taking a misguided approach to the PDA, courts have searched for discriminatory intent rather than seeing the policy itself as a formal policy of facial discrimination. The most egregious case is Young v. UPS, in which the Fourth Circuit acknowledged that it was collapsing the first and second clauses of the PDA and requiring discriminatory intent for all claims of pregnancy discrimination.

In that case, Peggy Young, a delivery driver who carried lighter letters and packs for United Parcel Service, had a lifting restriction during pregnancy. UPS decided that it could not continue to allow her to work unless she could lift the amount listed in her job description, even though she rarely if ever was asked to lift things that heavy. She was denied a light-duty accommodation despite a combination of collective bargaining rights and employer policies that provided light duty assignments for employees who were injured on the job, who had a qualifying disability under the ADA, or who were legally prohibited from driving due to causes as varied as complications from diabetes and a lost license due to a conviction for driving while intoxicated.

Both the trial and appellate courts held that UPS had not violated the PDA because the policy did not exclude only pregnancy, and there were at least some temporarily disabled employees who, like her, needed accommodation but would not receive it. The Fourth Circuit, inexplicably, rejected the notion that the second clause of the PDA creates a “distinct and independent cause of action,” despite several Supreme Court cases treating it in that way, and refused to transform “an antidiscrimination statute into a requirement to provide accommodation to pregnant employees, perhaps even at the expense of other, nonpregnant employees.”

The type of reasoning upon which the Fourth Circuit relied is the death knell for the right of comparative accommodation. It effectively allows employers to revert to a pre-PDA world, in which they can single out pregnancy from among other disabilities for adverse treatment. This is precisely what the PDA was enacted to eliminate. (The Supreme Court recently agreed to review this ruling, and it will be argued next term.)

The new EEOC Guidance, fortunately, tackles the light-duty issue head on. It concludes that a pregnant worker “may still establish a violation of the PDA by showing that she was denied light duty or other accommodations that were granted to other employees who are similar in their ability or inability to work.” Comparative evidence that pregnant workers are treated worse than others similar in their ability or inability to work, as a matter of policy or actual practice, is sufficient to establish a violation of the PDA whether or not the employer bore animus against pregnant workers. Therefore, the plaintiff need not use pretext analysis to smoke out discriminatory intent. A policy or decision that denies light duty to a pregnant worker while making it available to someone injured on the job or someone with a qualifying disability under the ADA is prima facie evidence of discrimination.

Moreover, the Guidance continues, “an employer cannot lawfully deny or restrict light duty based on the source of a pregnant employee’s limitation. Thus, for example, an employer must provide light duty for pregnant workers on the same terms that light duty is offered to employees injured on the job who are similar to the pregnant worker in their ability or inability to work.” This is an important response to the appellate court rulings, including the one in Young, which have held that discrimination based on source of injury is “pregnancy-neutral” as long as pregnancy is not the only condition excluded.

If these interpretations were followed in Young, as they should be, the Supreme Court would reverse the Fourth Circuit’s ruling. Peggy Young clearly suffered actionable pregnancy discrimination, for which she should be entitled to a remedy.


The new EEOC guidance tackles other issues related to pregnancy discrimination as well: the proper use of disparate impact theory, the impropriety of forced leave policies, and, importantly, the interaction between other federal statutes such as the Family and Medical Leave Act and the Americans with Disabilities Act (including the latter’s 2008 amendments). Across the board, the EEOC takes an approach designed, as Congress intended, to allow pregnant women to begin work, continue working, and return to work throughout the reproductive process. The Guidance shows sensitivity to the most common types of employer policies and practices that continue to stymie the careers of women who have been or might be pregnant, and it urges employers to go beyond even what the law requires where necessary to level the playing field. Were employers to both comply with the law and follow the recommended “best practices,” pregnant women would find a very different workplace indeed.

Joanna L. Grossman, a Justia columnist, is the Sidney and Walter Siben Distinguished Professor of Family law at Hofstra University. She is the coauthor of Inside the Castle: Law and the Family in 20th Century America (Princeton University Press 2011), co-winner of the 2011 David J. Langum, Sr. Prize for Best Book in American Legal History, and the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009). Her columns focus on family law, trusts and estates, and sex discrimination.
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Banning the Export of American Oil Mon, 21 Jul 2014 04:01:26 +0000 Continue reading →]]> Oil WellsSince 1974, federal law generally has prohibited the export of American oil. The law bans such exports even though the Export Clause of the U.S. Constitution provides that Congress can impose “No Tax or Duty” “on Articles exported from any State.” (Art. I, §9, cl. 5.) The higher a tariff is, the more it discourages exporting the good. A total ban on oil exports is equivalent to a tax of infinity.

The history of the Export Clause shows that Congress can no longer justify this ban. When the Framers drafted our Constitution in 1787, the South expressed concern that the North would tax the export of cotton, which was the South’s major cash crop. The South wanted to keep its markets open to the world. James Madison proposed that Congress could impose an export tax, if a super-majority in Congress approved. The South objected that such a restriction was insufficient protection because the more populous North might still be able to impose an export duty. The South did agree that a simple majority could impose a tax on imports but the North had to agree that there must be no tax on exports. While this constitutional restriction in the Export Clause initially favored the South, its principle applies without regard to geographic region. For example, in an effort to make aluminum or steel cheaper, Congress may not impose a tax on their export.

Even low export tariffs on the export of aluminum or steel would hurt the balance of trade, which Congress and the President constantly bemoan. Moreover, export tariffs would increase unemployment in the aluminum and steel industries because the tariff barrier would reduce demand. In the very short term, that lower demand would be equivalent to increasing the domestic supply (thus lowering prices) but that effect will be short-lived because producers of aluminum and steel will reduce supply to synchronize with the reduced demand.

A History of the Export Clause

Since 1974, Congress has imposed the functional equivalent of an absurdly high tax on oil exports by simply banning all exports. However, the Export Clause (Article I, §9) says Congress cannot do that. For example, the Court invalidated the Harbor Maintenance Tax as an invalid tax on exports, in United States v. U.S. Shoe Corp.. The law applied to goods loaded at United States ports for export, based directly on the value of the cargo itself, and not upon any services that the government rendered for the cargo.

Even though the government imposed this tax in a nondiscriminatory fashion, on exports, imports, and domestic commerce, U.S. Shoe Corp. held that the Export Clause prohibits even nondiscriminatory taxes on exports. As the Court explained in another case, the “proponents of the [Export] Clause fully intended the breadth of scope that is evident in the language.” Similarly, the Court later held that Export Clause does not permit nondiscriminatory federal taxes on goods in export transit. As it explained in United States v. International Business Machines Corp., quoting from the debates by the Framers, the hands of the Legislature were absolutely tied” by the Export Clause, and “It is best to prohibit the National legislature in all cases” from imposing export tariffs.

As in life, many issues in constitutional law can get complicated. The Court has allowed Congress, for national security purposes, to impose embargoes. The Court reasoned that the purpose of that export restriction is not to keep goods in the United States just so purchasers can buy them more cheaply. Instead, the congressional purpose is national security. Thus, Congress can prohibit arms manufacturers from exporting tanks to the enemy during times of war. Congress can also decide to limit or restrict exports to particular countries for national security purposes. That is how Congress justifies the trade embargo on Cuba or Iran, for example.

The Oil Export Ban

The oil export ban was a response to the Arab oil boycott of 1974. Congress relied on national security to justify the ban, and that rationale was legitimate at the time. As the Supreme Court explained in Regan v. Wald, the President, if authorized by Congress, “has broad authority to impose comprehensive embargoes on foreign countries as one means of dealing with both peacetime emergencies and times of war.”

While the embargo had obvious national security purposes in 1974, what was true then is not true four decades later. Energy Secretary Ernest Moniz recently urged Congress to reconsider the nation’s ban on exporting domestically produced crude oil. As Mr. Moniz said, “Those restrictions on exports were born, as was the Department of Energy and the Strategic Petroleum Reserve, on oil disruptions.” When the reason for the law changes, the law should change.

The federal oil embargo no longer deals with a peacetime emergency. The International Energy Agency (IEA), a Paris-based adviser to 28 energy-consuming nations, includes among its advisees the United States, Canada, and most of Europe. Late last year, the IEA concluded that by 2015, the United States would overtake Russia as an oil producer. By 2017, it will surpass Saudi Arabia. In 2012, U.S. oil production was 9.2 million barrels a day; by 2020, it will rise to 11.6 million barrels a day. Meanwhile, revenues for OPEC’s 12 members are at its lowest in several years. Many OPEC countries use their oil revenues to arm terrorism. Less profit means less money for countries like Russia or Iran to spend to spread mischief abroad.

The cause of this newfound abundance of oil is American technology. American producers can now tap rock and shale layers in North Dakota; Texas is using horizontal drilling and hydraulic fracturing. The result is that this finite resource is expanding, not contracting. Domestic oil production has increased by 66 percent since 2008. It will continue to increase.

Nonetheless, the oil export ban persists, although the reason no longer has anything to do with national security. Now, the purpose of the ban is to keep domestic prices artificially lower for domestic consumers. For example, Senator Edward J. Markey (D. Mass.) argues, “oil should be kept here in America, to benefit our consumers,” but that admitted goal is directly contrary to the very purpose of the Export Clause. Just as Congress cannot impose export restrictions on cotton to dampen consumer prices in the United States, it cannot impose export restrictions on oil exports when the country is awash in oil.

Granted, using oil affects carbon dioxide and that may affect global warming. However, the rest of the world will produce oil anyway; the only real issue is whether the United States should export oil to countries that are our friends, or keep those countries reliant on countries that are not friendly to us. Today, we are concerned that Ukraine and Western Europe feel under the Russian thumb because of their dependence on Russian energy exports. By exporting our energy, we reduce the power of Russia in a way that does not require flexing any military muscle.

Allowing oil exports will also increase the incentive to find more oil domestically. It will increase employment in the oil industry at a time when national unemployment is stubbornly high. The Commerce Department is taking notice. In late June, in private rulings that it did not publicly announce, it allowed some exports by defining some ultra-light oil as fuel once there has been a small amount of processing, which makes this oil eligible for sale outside the United States. This is a small exemption, but it could grow. The head of oil research at Societe Generale SA in New York, Mike Wittner, recently advised, In addition, it’s good for peace, because it will lower the worldwide price of oil and that serves to reduce the oil income of foreign dictatorships that sponsor violence. That should make the world safer for all of us.

Ronald D. Rotunda is The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, The Dale E. Fowler School of Law. He is coauthor of six-volume Treatise on Constitutional Law: Substance and Procedure (5th ed., Thomson-West, St. Paul, Minn. 2012-2013), and Legal Ethics: The Lawyer's Deskbook on Professional Responsibility (ABA Thomson-West & ABA, 11th ed. 2013), a one-volume treatise on Legal Ethics.
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A Potential Guide to the Meaning of Hobby Lobby: Why Justice Kennedy’s Concurring Opinion May Be Key, Part I Fri, 18 Jul 2014 04:01:36 +0000 Burwell v. Hobby Lobby Stores Inc. deserves heightened attention and weight. In this first of a two-part series of columns, Amar provides background on the roles and types of concurring opinions in 5-4 decisions and provides some historical examples of some key concurrences. Continue reading →]]> Judge WritingLegal and political commentators have already spent thousands of hours on how best to understand Justice Alito’s majority opinion in Burwell v. Hobby Lobby, and whether Justice Ginsburg’s dissent was accurate in saying the decision was of “startling breadth.”

But to understand the scope of the majority opinion construing the federal Religious Freedom Restoration Act (RFRA), we may need to focus on the separate concurring opinion of Justice Kennedy, an opinion that seems to be getting little ink. Two important and complex questions need to be asked about this concurrence: (1) Why should we care what it says? and (2) What does it really say? In the space below, and in my next column in two weeks, respectively, I take up each of those questions.

When There Are Five Votes for a Majority Opinion, Do (or Should) Concurring Opinions Matter?

The first question—why we should pay any attention to the content of Justice Kennedy’s opinion—is fair to ask, and complicated to answer. After all, Justice Alito’s opinion was an Opinion of the Court, which means an opinion for a majority of the voting Justices and not just for a “plurality” of them. In most circumstances, when there is an Opinion of the Court, lower courts (where battles over the scope of RFRA are going to be most meaningfully fought, at least until the Supreme Court decides another RFRA case) must look for meaning and guidance in that Opinion, without necessarily consulting the one or more additional concurring opinions that may have been filed. But, crucially, in Hobby Lobby, Justice Kennedy’s was the fifth vote in a 5-4 case; without Justice Kennedy’s joinder, Justice Alito’s opinion would have lacked a majority. So to the extent that Justice Kennedy’s separate opinion represents a narrowing gloss on Justice Alito’s writing (and in Part Two of this series I will take up whether Justice Kennedy’s opinion is indeed narrower), there is a plausible argument to be made that lower courts (and perhaps also future Supreme Courts) should view Justice Kennedy’s opinion as the guiding or controlling one.

Certainly that would have been true had Justice Kennedy not joined (some or all of) Justice Alito’s opinion, but instead had concurred only in Justice Alito’s bottom-line judgment that Hobby Lobby should win, and written a separate opinion laying out his narrower reasoning. In that instance, everyone would agree there would be no Opinion of the Court (for the parts Justice Kennedy did not join), and Justice Alito’s opinion would be for a plurality only. And in situations like these, the Supreme Court has held, in a somewhat well-known 1977 case, Marks v. United States, that lower courts should look for and be guided by the “position taken by those Members [of the Court] who concurred in the judgments on the narrowest grounds” (emphasis added).

Which Matters More, a Justice’s Vote (to Join a Majority Opinion) or His (Concurring) Voice?

Is the situation really so different if a Justice joins an Opinion of the Court (to make a fifth vote) but then writes separately to make clear the (narrow) understanding of the majority opinion on which he based his decision to join? There are first-rate legal minds (including, perhaps, some of my Justia ConLaw professor colleagues) who may say “yes”—formalities matter, and the act of being the fifth vote to join a majority opinion is all-important. There are no constitutional provisions, statutes, or judicial regulations that speak to this question; it seems to be a matter left to and determined by judicial practice. I am not aware that the Supreme Court itself has ever offered detailed views on how a situation like this should be handled, but I find it hard to see a big difference—in the context of a case whose result is determined by a 5-4 vote—between “concurring in the Judgment” and writing a separate opinion, on the one hand, and joining a majority opinion while writing the very same kind of separate opinion, on the other.

Because the writing of a separate opinion laying out a narrower view than that which might have been laid out by the majority opinion is a more specific and more fully explained act than is the general decision to join the majority opinion, I think attaching weight to the narrowing, specific concurrence makes good sense, especially if the concurring Justice is still on the Court (such that his separate writing bears on any prediction of how the Court would rule if another case were brought to it today.) I say this in part because a decision to join with other Justices to make an Opinion of the Court may have been made in part to keep peace at the Court or to avoid the direct insult of a colleague, and does not mean that there might not be important substantive differences among all those who join the Opinion.

The case for crediting the narrow understandings reflected in concurring opinions in this setting is especially strong when the majority opinion may itself be fuzzy (or silent) on the legal question at issue. In these circumstances, a fifth Justice who sincerely believes the majority opinion embraces the narrow reasoning that is on his mind does would not want to refuse to join (and concur only in the judgment) because of the fuzziness. Collegiality and harmony are better served by permitting him to join but to make clear (in a way that will be respected by lower courts) the expectations on which his joinder is based. If his separate concurrence is not given controlling weight in these circumstances, he will be encouraged in future instances not to join the majority opinion (but instead to concur in the judgment only), and this might create needless division and intra-Court friction if in fact the majority opinion embraced the (narrow) holding he thought it did but about which he was not completely sure.

Even when the majority opinion (which has five votes) is clear on the legal proposition in question and a concurring Justice’s “understanding” of the majority opinion, on which his joinder is premised, is objectively unreasonable, there is still a forceful argument to place weight, in a 5-4 case, on a separate concurrence by a Justice within the majority. To the extent that a concurring Justice makes clear by his writing that he disagrees with this part of the Opinion of the Court, his narrower understanding of the law should control, regardless of whether he joined the majority opinion or simply concurred in its judgment.

In effect, we should read his actions/writing together to mean that he really didn’t join with the part of the Court opinion with which he (apparently) disagrees, but he just decided (perhaps because he misread the majority opinion) not to formally opt out of any important sentences or paragraphs in the majority opinion that dealt with the legal proposition in question. It also bears mention that majority opinions often (usually?) fail to break up analysis of each legal question into a separate Section or Part. For this reason, Justices who agree with the bulk of an opinion’s analysis, but who may disagree with a few key sentences, or even words, cannot easily register their nuanced mix of agreement/potential disagreement simply by declining to join whole subdivisions of the opinion.

A few hypothetical variants may help make my point. As I suggested earlier, everyone seems to agree that if a fifth Justice joins most of an opinion, but expressly declines to join a Part or Section of the opinion that included legal proposition X, we would say the Court has not embraced X. If, instead, the fifth Justice writes to say that he “join[s] all parts of Opinion of the Court, except to the extent that the Opinion says X,” again there would be no Opinion of the Court as to the legal proposition X. Now imagine the fifth Justice writes separately to say: “I join the Opinion of the Court because it does not say X.” Should that explicit statement be treated any differently? And, finally, how about: “I join the Opinion of the Court on the understanding that it does not say X”? To me, it would be formalistic without justification to treat the last two of these situations (regardless of the reasonableness of the concurring Justice’s reading of the majority opinion) differently from the first two.

I do think the fact that a Justice joins a majority opinion should not be completely irrelevant in these kinds of situations. So, for example, if there is ambiguity in the meaning of the concurring Justice’s separate writing, that ambiguity should be resolved in favor of harmonizing it with the majority opinion that she chose to join. But to the extent that the concurring opinion clearly disagrees with, or offers more details in narrowing, legal propositions asserted in the majority opinion, the concurring Justice’s voice should control over her vote (to join the majority).

Perhaps the best counterargument, that is, the best argument in favor of not attaching controlling weight to the concurring opinion, is that the Marks-style analysis is often difficult to undertake, and sometimes lower courts make mistakes in trying to figure out what the narrowest common grounds are between multiple opinions. Deciding what is “common” between opinions, and discerning the “narrowest grounds” can be challenging. In the Marks setting, we have no choice but to undertake this tricky analysis because without comparing multiple opinions (no one of which had five votes) we lack any holding at all to guide future cases. By contrast, in the situation I describe in this column, there is an Opinion of the Court (that got five votes), and so telling lower courts to follow it only, and not to complicate matters by trying to incorporate the concurrence into the analysis, does not deprive the system of a holding to guide lower courts.

In the end, I find this counterargument unconvincing for three reasons. First, the Marks-style analysis may sometimes be difficult, but courts do perform this task regularly, and in some cases it may actually be easier to focus on clear limiting language in a concurring opinion than to resolve ambiguities within the majority opinion alone. (I should note that some appellate courts—including the U.S. Supreme Court during its early history—do not issue “Opinions of the Court,” but rather issue individual opinions seriatim, leaving lower courts to figure out the rule(s) of law that were adopted.) Second, we employ Marks analysis not just because we want to generate a holding (we could to that by flipping a coin as between all the opinions that supported the judgment), but because it makes normative sense to seek to identify true common analytic ground between five or more Justices. If that is true in Marks, it is true here as well. Finally, as I noted earlier, if we don’t attach controlling weight to a concurring opinion in the situation I posit here, then a Justice who makes the fifth vote in a future case will, instead of joining the Opinion of the Court, simply concur in the judgment and write a separate opinion anyway, and so we will be right back in the realm of Marks. If a Justice cares enough about an issue to write separately, she probably will do what it takes to make sure the concurring viewpoint is given as much weight as possible in future cases.

Historical Examples

I am not aware of a huge number of prominent instances in which a Justice provided a fifth vote for an Opinion of the Court and then also wrote separately to distance himself in a discernible way from at least some broad propositions in the majority’s approach. But in well-known cases in this category that do come to mind, lower courts have tended to place controlling weight on the concurring views of a fifth Justice even though he also joined the majority. Maybe the most famous illustration of this is Youngstown Sheet and Tube v. Sawyer, where Justice Jackson’s concurring opinion has held tremendous sway in lower court (and also later Supreme Court) rulings, even though he also joined Justice Black’s Opinion of the Court in this 5-4 case. Another significant decision is the 5-4 ruling in United States v. Verdugo-Urquidez, where Justice Kennedy joined Chief Justice Rehnquist’s majority opinion (giving it a fifth vote), but also wrote separately to express views that were narrower than those expressed in the Chief’s writing. And a Third Circuit case, at least (with then-Judge Alito part of the unanimous panel), found that Justice Kennedy’s views controlled.

Perhaps the case most similar to Hobby Lobby in this respect is National League of Cities v. Usery. There, as in Hobby Lobby, powerful entities—States rather than corporations—sought exemptions from federal workplace regulations. And, similar to Hobby Lobby, a five-Justice majority opinion (authored in that case by Chief Justice Rehnquist) held that States were immune from the minimum wage regulations at issue there, laying out what on its face seemed like a rather broad principle of state immunity from federal regulation in areas of “integral” or “traditional” government functions. Justice Blackmun joined the majority opinion, but also wrote separately to make clear his narrow understanding of state immunity and what the majority opinion should stand for; in Justice Blackmun’s view, state exemptions depended on the application of a balancing test in which federal interests were weighed against state autonomy.

In the wake of National League of Cities, at least some influential lower courts found Justice Blackmun’s balancing test to be required by the Court, even though it was not mentioned explicitly in Chief Justice Rehnquist’s majority opinion. Indeed, even though there was an Opinion of the Court in National League (because Justice Blackmun did join the Chief’s writing, giving it five votes), the U.S. Court of Appeals for the District of Columbia characterized the Chief’s opinion as a “plurality” view, and focused instead on how best to read Justice Blackmun’s separate writing. And when the Supreme Court itself was called upon to apply National League of Cities five years later in Hodel v. Virginia Surface Mining, it observed that National League of Cities stood for some kind of balancing test, citing Blackmun’s concurring opinion.

There may be (and probably are) counterexamples, but these high-profile cases, especially National League of Cities, suggest that there is at least a significant likelihood that lower courts will (justifiably) feel controlled by Justice Kennedy’s Hobby Lobby writing and thus will parse it to see if his views narrow the scope of Justice Alito’s opinion. So I will turn to that parsing in Part Two of this series.

Vikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
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Federal Judge Strikes Down California Death Penalty: What This Could Mean for California Fri, 18 Jul 2014 04:00:43 +0000 Continue reading →]]> SyringeA federal judge in the U.S. District Court for the Central District of California issued an extraordinary ruling yesterday that California’s death penalty is unconstitutional, vacating Ernest Dewayne Jones’s death sentence. In a remarkably straightforward opinion, Republican appointee Judge Cormac J. Carney found that California’s death penalty system is so unfair and arbitrary as to violate the Eighth Amendment’s ban on cruel and unusual punishment.

Judge Carney found California’s capital system to be rife with delay and dysfunction. The state has sentenced more than 900 individuals to death since 1978, but has executed only 13 of them. By contrast, 94 have died of other causes, including old age, illness, and suicide. Inmates are more likely to die of other causes because of systemic delays in the appellate process that prevent execution than from execution itself. The court pointed out that death penalty cases take more than 25 years to resolve, and that the majority of that time is spent in state courts.

The court also found the appellate delays to be caused by the state of California itself – not malingering petitioners or federal appellate processes. In 2008, the California Commission on Fair Administration of Justice issued a report concluding that the State’s death penalty system was dysfunctional and “plagued with excessive delay.” That Commission recommended a series of improvements be implemented to fix the dysfunction and delay, yet six years later, not one of those recommendations has been put into place. The court found further delays in the direct and collateral appeals resulting from lack of qualified appointed counsel and a severe backlog at the California Supreme Court. Furthermore, backlogs in California state courts cause delays in federal collateral review of capital cases, which requires that the petitioner exhaust all remedies in state court first.

Arbitrary and Capricious Application of the Death Penalty

The Eighth Amendment, and the cases that have subsequently interpreted it, proscribe the arbitrary application of the death penalty. In Furman v. Georgia, the U.S. Supreme Court struck down death penalty sentencing schemes that “created a substantial risk that it would be inflicted in an arbitrary and capricious manner.” This is a hallmark of death penalty jurisprudence that has survived, despite the reinstatement of capital punishment in subsequent Court rulings.

Judge Carney found California’s death penalty scheme to be “so plagued by inordinate and unpredictable delay” that it is indeed an arbitrary, capricious application of the punishment, in violation of Furman and subsequent opinions. The fact that over 900 individuals have been sentenced to death, and only 13 of them actually executed, results in a “sentence of life imprisonment with the remote possibility of death—a sentence that no rational legislature or jury would ever impose.” Carney goes on to note that execution will “depend upon a factor largely outside the inmate’s control”; in other words, it’s not the type or severity of the crime that determines whether the death penalty will be imposed, but arbitrary reasons, and this is a violation of the Eighth Amendment’s ban on cruel and unusual punishment.

Judge Carney also found that California’s death penalty no longer serves the primary penological purposes of capital punishment. Gregg v. Georgia, which reinstated the death penalty, did so with the understanding that the punishment should serve two “principal social purposes”: retribution and deterrence. Carney noted that it is an established principle that “the deterrent effect of any punishment is contingent upon the certainty and timeliness of its imposition, ” and that the 25+ year delay in execution, and the exceedingly low number of individuals actually executed, negates any deterrent value that the punishment may have. The retributive purpose is similarly negated by “such delay and unpredictability” in the system, since most of those sentenced to death end up serving life in prison, instead.

In summary, Judge Carney concluded:

The Court holds that where the State permits the post-conviction review process to become so inordinately and unnecessarily delayed that only an arbitrarily selected few of those sentenced to death are executed, the State’s process violates the Eighth Amendment. Fundamental principles of due process and just punishment demand that any punishment, let alone the ultimate one of execution, be timely and rationally carried out.

Implications of the Ruling

What does this mean for the 748 individuals currently on Death Row? It’s unclear. This decision applies only to the matter at hand, the death sentence of Petitioner Jones. According to press reports, the Attorney General is considering the matter and has not indicated whether she will appeal the ruling. Defendants and Petitioners will certainly cite the holding in their arguments, but other state and federal courts are not bound to follow it.

California, however, seems to be on the precipice of change when it comes to the death penalty. Public opinion has changed dramatically over the past couple of years, both in the state and across the nation. In 2012, a proposition that would have replaced the death penalty with life in prison without parole garnered 48% of the vote. Revelations about the high cost ($4 billion since 1978, and a projected $1 billion over the next five years), structural problems in the system, and the risk of executing an innocent person are leading many citizens away from the death penalty. Stories about botched executions horrify the nation, and many states—including California—are actually enjoined from carrying out executions until new protocols have been adopted. A recent poll shows that 63% of California voters support commutation of the sentences of the entire population of death row to life in prison without the possibility of parole. In 2013, Gallup found that support for the death penalty, nationwide, is at its lowest number in over 40 years.

Judge Carney’s opinion is in line with the direction of public opinion, whether he intended it or not. Regardless of whether his reasoning is upheld on appeal or in subsequent litigation, it could very well signal the imminent demise of the practice in the state.

Courtney Minick is an attorney, blogger, and product manager at Justia, Inc. She is an advocate for free and open access to primary legal materials and government documents.
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Does Hobby Lobby All But Require Companies to Find Religion? Thu, 17 Jul 2014 04:01:43 +0000 Burwell v. Hobby Lobby Stores Inc., particularly whether it effectively compels all companies to adopt beliefs to increase profits and fulfill their fiduciary duties to their owners. Buchanan predicts that either we will see an increasing number of companies take this route to maximize profits, or we will want to investigate why more companies are not pursuing this attractive route to free market salvation. Continue reading →]]> Business ProfitsThe Supreme Court’s 5-4 decision in the Hobby Lobby case continues to reverberate in legal and political circles, with seemingly every angle of the majority’s bizarre decision being scrutinized, defended, and ridiculed. For example, over on Dorf on Law, Michael Dorf and I have now written a total of nine “post mortem” posts analyzing Hobby Lobby, and Professor Dorf’s Verdict column yesterday was also inspired by that case.

Certainly the most fascinating aspect of the case, from my perspective, is the Court majority’s holding that corporate “persons” can hold sincere religious beliefs. Although the specifics of the case involved “closely-held” corporations, the majority’s logic obviously opens up the possibility—indeed the likelihood—that other large, for-profit corporations could declare themselves to be motivated by religious convictions. The majority claims that corporate law might provide a brake on the ability of corporations to invoke religious beliefs; but if a company does decide, through its internal processes, that it is a sincere believer in any particular religion, then there is nothing in Hobby Lobby that would prevent the corporation from being covered by the Religious Freedom Restoration Act (RFRA).

In this column, I explore the possibility that companies will not only be able to invoke RFRA’s religious protections after Hobby Lobby, but that many companies will essentially be all but compelled to take religious positions that will increase the companies’ profits (by, for example, allowing the companies to be exempt from environmental laws). First, however, it is important to understand just how expansive the Hobby Lobby majority’s opinion could turn out to be.

The Basics of RFRA Challenges: Hobby Lobby Puts Pressure on the “Sincerity” Prong

The Hobby Lobby chain of stores, according to the Court’s majority, is a corporate person that shares its majority owners’ fundamentalist Christian beliefs. This “person” won its challenge to a part of the Affordable Care Act (ACA), which required companies either to provide health care coverage that includes a full range of contraceptive choices, or to pay fines to the government.

This corporate person believes that abortion is a sin, and that some of the contraceptive options required under the ACA cause abortions. As Professor Dorf noted in one of his essays on the case, that the corporation’s religious beliefs were scientifically false does not matter under RFRA, because what matters under that law is that the religious person believe that something is true, not that it actually be true.

The analysis under RFRA works as follows: If a person can establish that his/her/its “sincerely held” religious beliefs are being “substantially burdened” by a neutral law of general applicability, then the believer will be exempt from the law unless the law achieves a “compelling governmental interest” by the “least restrictive means” possible. In Hobby Lobby, the majority conceded (grudgingly) that there was a compelling governmental interest served by the ACA’s contraceptive requirement, but it then held that there was a less restrictive way to achieve that compelling interest.

The Dorf on Law series of posts explains in some detail how the RFRA requirements, together with the majority’s ruling in Hobby Lobby, will put enormous pressure on a threshold question that was not in dispute in that case. If a corporation’s religious beliefs are “sincerely held,” then the RFRA analysis proceeds. If not, then one need not even proceed with the formal prongs of the analysis.

Part of the reason that a litigant’s religious sincerity must become an important part of future cases is that there is no other point in the legal analysis to challenge the possibility that a religious belief might be invoked dishonestly or opportunistically. One might, for example, have imagined that an asserted religious belief could be scrutinized for its seriousness under the “substantial burden” prong of RFRA. However, after Hobby Lobby, that prong is unavailable. As Justice Ginsburg’s dissent points out, the majority essentially treats all religious burdens as substantial, removing a possible point at which a court could have said to a future litigant, “Yes, we understand that you have a religious belief that is being burdened by the law, but it is not substantial enough to quality under RFRA.”

It is also possible to read the majority’s opinion as saying that “substantial” under RFRA refers to the seriousness of the penalty that the company would pay for violating the ACA, not the seriousness of the religious belief that is being burdened. Although I find such a reading of Justice Alito’s words to be unpersuasive, it is a minimally plausible interpretation, at least if one focuses on some phrases to the exclusion of others. Even if that were the correct reading, however, then it would merely mean that the substantiality question was never available to challenge the seriousness of religious burdens or beliefs in the first place.

Either way, the only way for a future court to police claims of religious burdens would be to inquire into whether the “person” holding the asserted beliefs does so with sincerity. Otherwise, courts will find themselves proceeding to the analysis of “compelling governmental interests” and “least restrictive means” without any inquiry at all into whether the religious belief in question is in any way serious. This not only would defy logic, but it would also violate RFRA itself.

The Difficulty of Inquiring Into Religious Sincerity, and the Additional Complications When For-Profit Corporations Are Involved

Until now, courts have been understandably hesitant to question the sincerity of any litigants’ asserted religious beliefs. Questioning another person’s sincerity is a serious matter, and courts would prefer not to be forced to rule that a person really does not believe in the religious proposition that he has claimed—on public record, no less—to believe.

Even if a court were willing to so inquire, moreover, it is very difficult to figure out what kind of evidence one would need to “prove” that someone is being insincere. Even a signed affidavit saying, “I do not hold Religious Belief X,” might not be enough, because a person’s religious beliefs can change at any moment. Indeed, many religions teach that proselytizing about their faith to nonbelievers is essential, because nonbelievers simply need to be shown the error of their ways and be directed toward “truth.” The revelation of truth is thought to be a deeply personal event, where a person suddenly sees what he could not see until that glorious moment. This is why deathbed conversions are so often respected, and why being “born again” is a central part of the belief system of many Protestant denominations.

Moreover, in the “Hobby Lobby post mortem” series noted above, Professor Dorf added the additional nuance that it is possible to practice a religion without holding any particular set of beliefs about that religion. This makes it even more difficult to see how a court could inquire into the sincerity with which a litigant holds any given religious claim.

When for-profit corporations are involved, however, one would think that a court’s skepticism should rise, depending on the nature of the religious claim. If a company asserted that its religion prevents it from complying with a law, and that law just happens to increase the company’s costs and thus reduce its profits, the suspicion would be unavoidable that RFRA was merely a new vehicle by which the company was padding its bottom line. Sincerity would be the key, but there is no useful guidance about how to determine sincerity. Indeed, the majority’s opinion goes to great lengths to suggest that inquiries into religious beliefs are wholly unacceptable.

The Profit-Seeking Imperative: If a Law Can Be Challenged, Must a Company Challenge It?

In my contributions to the Hobby Lobby post mortem series on Dorf on Law, I have explained how a for-profit company could proceed through the relevant prongs of RFRA to challenge profit-reducing laws. The example that I discussed at the greatest length was the minimum wage, but certainly any law could be challenged on a religious basis. It is true that such companies could still lose on the other prongs, but they could also win, at least under some easily imaginable sets of facts.

Based on that analysis, I ended up predicting that there could soon be a “gold rush” atmosphere, in which Hobby Lobby opens the floodgates to companies that test the boundaries of the new religious doctrine, to challenge laws that they dislike. Although there are some forces pushing in the opposite direction, I could easily picture a legal landscape in which many companies challenge under RFRA all manner of laws for purportedly violating their sincerely held religious beliefs.

But what if I am wrong? What if companies for some reason find it unseemly to challenge secular laws on religious grounds, or have some other reason to leave well enough alone, no matter the open invitation that the Hobby Lobby majority sent out to corporate America? Arguably, such companies would be violating their duties to their shareholders.

To be clear, religious challenges by corporations will probably continue to “seem weird” to many people—even to people who sympathized with the owners of Hobby Lobby on that company’s particular claim. Other than on matters of reproduction, one might imagine that it would be difficult to find a religious reason to avoid providing a safe workplace, or to refuse to install pollution reduction devices, or to sell tainted food, or to challenge any of a number of other standard business-related laws.

As odd as it sounds, however, such claims could plausibly be supported by religious beliefs. There are plenty of people who hold what they claim to be religiously motivated beliefs, but whose beliefs would seem unsupported by the religion in question. American Protestant churches split over the question of slavery in the nineteenth century, for example. Some people read the Bible to require that believers provide charity to the poor, while others read the same Bible to say that we are required to allow poverty to continue. Does scripture require that heterosexuals love and accept homosexuals, or the opposite?

These difficult questions, moreover, arise even within established religions. RFRA, however, is not limited to those religions, and so long as someone sincerely believes in a religion, then even a brand-new religion is to be accorded respect. When people talk about “faith in the free market,” we generally take that to be a metaphor; but what if a person says that her faith in unregulated commerce is a matter of religious conviction?

All of this, however, still presumes that the post-Hobby Lobby “gold rush” that I predicted would involve only companies that are eager to pursue religious claims, whereas others would be free not to do so. But what if it would actually be a breach of the fiduciary duty to a company’s owners not to pursue such claims? In other words, what if companies would feel compelled to pursue religious claims—even to the point of inventing new religions that embody their sincere beliefs in unregulated markets—in order to fulfill their duty to their shareholders?

The renowned conservative economist Milton Friedman argued nearly a half-century ago that the managers of companies have no business “doing good,” that is, that the executives who run a corporation have an affirmative duty not to “give away the shareholders’ money” by being good corporate citizens. Companies, under this view, would violate their solemn duties if they were to do anything more than what the law absolutely requires.

There is plenty of controversy over Friedman’s views, of course. Even so, his logic suggests that companies are required not only to go to the edge of illegality in all of their dealings, but that they push the edge to see just how far it might go. Tax strategies that might later be found to be illegal, for example, are required business practice unless and until they lead to successful prosecutions. Similarly, spending company money to change the laws—to lobby—in a way that will pad the bottom line, even if doing so harms the political system and society at large, is merely a standard part of good business practices.

Of course, corporate law in the United States gives management a great deal of leeway in deciding what is the best path toward maximizing profits. If a company could challenge an environmental regulation but chooses not to do so, the default assumption is that this was a judgment call by management that deserves to be respected. Maybe the managers thought that the suit would lose, or that the increased profits from winning were too small to matter, or any of a number of other reasons not to do something that could have increased the company’s profits.

That default presumption, however, is still to be weighed against something like Friedman’s view of fiduciary duty. If a corporate executive is handed a profit-making opportunity by the Supreme Court, and the company can avail itself of that opportunity simply by declaring its sincere fealty to religious beliefs that happen to increase the company’s profits, then failing to pursue that avenue is potentially problematic.

Moreover, even if companies’ managers cannot be sued in a derivative lawsuit for failing to pursue RFRA claims, they will certainly now feel pressure to explore and pursue such claims. Internal debates over pursuing Hobby Lobby-like claims will surely arise, and it would be foolish to simply assume that only a tiny number of those debates will be won by those who wish to take an aggressive religious position.

If it turns out that there is merely a trickle of such litigation in the aftermath of Hobby Lobby, therefore, the most interesting question will not be to explain the cases that we see, but to understand why the trickle is not a flood. Or, to mix metaphors, if this dog does not bark, then sleuths will want to know why more companies are not following this new and promising path to free market salvation.

Neil H. Buchanan, a Justia columnist, is an economist and legal scholar, a Professor of Law at The George Washington University, and a Senior Fellow at the Taxation Law and Policy Research Institute, Monash University (Melbourne, Australia). He blogs at, and he is the author of The Debt Ceiling Disasters: How the Republicans Created an Unnecessary Constitutional Crisis and How the Democrats Can Fight Back.
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