Posted on by Marc O. DeGirolami

DeGirolami on Standing and Justiciability in the Same-Sex Marriage Cases

I have a short piece over at Commonweal on the issues of standing and justiciability in United States v. Windsor and Hollingsworth v. Perry. Here’s a little bit:

Yet the question of relevance persists: Even if lawyers and judges pay attention to standing, why should the public care about it, particularly when matters of equality, freedom, and civil rights are jostling for the limelight?

First, because less is more. The Supreme Court wields its power within the constitutional structure only as long as it also retains a firm sense of the limits of that power. When it exceeds those limits, it disrupts the constitutional order and threatens its own authority. As always, Tocqueville saw this clearly:

The political power which the Americans have intrusted to their courts of justice is therefore immense, but the evils of this power are considerably diminished by the obligation which has been imposed of attacking the laws through the courts of justice alone. If the judge had been empowered to contest the laws on the ground of theoretical generalities, if he had been enabled to open an attack or to pass a censure on the legislator, he would have played a prominent part in the political sphere; and as the champion or the antagonist of a party, he would have arrayed the hostile passions of the nation in the conflict.

Or, as Justice Antonin Scalia put it in his dissent in the DOMA case, a free-floating power to say what the law is would be “an assertion of judicial supremacy over the people’s representatives in Congress and the executive”—an unsustainable exercise of judicial force that risks destroying the constitutional separation of powers.

Second, it is we who have the primary duty to make the law. We are given that duty by the federal and state constitutions, each of which provides representative mechanisms for us to discharge our duty. But the duty remains ours, not the Supreme Court’s. Constitutions are collections of entrenched choices made by the people to obligate not only their representatives and officials, but also themselves. Justice Kennedy’s dissent in the Proposition 8 case likewise notes that California’s popular initiative system represents a choice by the people of the state about where to vest law-making authority. A people that has no time for justiciability is more likely to cede its law-making powers and duties. Eventually, it will not even remember what power it has surrendered. It will then have the judges it deserves.

Posted on by Marc O. DeGirolami

Judge Duncan on the Influence of Customary Practice on Constitutional Interpretation

As has been widely reported, the United States Court of Appeals for the Fourth Circuit yesterday in a divided decision held that President Obama violated the Recess Appointments Clause of the Constitution in appointing three people to the National Labor Relations Board on January 4, 2012–that is, “intra-session,” during the Senate’s session beginning January 3, 2012. Judges Hamilton and Duncan held that “the Recess” in the Recess Appointments Clause of the Constitution (Article II, section 2, clause 3) means only the period between the two discrete sessions of the Senate, and that the President therefore may only use his powers under the Recess Appointments Clause inter-session. Judge Diaz dissented. The Fourth Circuit’s holding on this issue matches the holding of the United States Court of Appeals for the District of Columbia Circuit in NLRB v. Noel Canning, which will be heard by the Supreme Court next term.

What does all of this have to do with law and religion? Well, not too much. But there is a very interesting set of observations in Judge Duncan’s brief concurring opinion which does make a connection (beginning at page 126). Here’s Judge Duncan:

Historical practice in the decades following ratification of the Constitution is similarly sparse, and too easily subject to manipulation by “savvy lawyers,” as the dissent rightly notes. Diss. Op. at 147. Nor is it obvious how the uptick in intrasession recess appointments since 1981 ought to affect our analysis. Compare Marsh v. Chambers, 463 U.S. 783, 792 (1983) (upholding the practice of beginning legislative sessions with a prayer because its long history of use had made it “part of the fabric of our society”),with INS v. Chadha, 462 U.S. 919, 944 (1983) (observing that the increased frequency of the Congressional veto in statutes “sharpened rather than blunted” the judicial inquiry).

The questions Judge Duncan is asking are extremely difficult in constitutional law, and they are lots of fun to pose to students: what is the strength of custom or practice in constitutional interpretation? Should a long-standing practice which the government has engaged in for many years render the practice more likely or less likely to be constitutional? Or should the customary nature of a practice have no effect on constitutionality at all?

What makes Judge Duncan’s choice of examples particularly neat is that the issue of the constitutionality of legislative prayer (as readers of the Forum will know) is also on the Court’s docket next term in Town of Greece v. Galloway. And yet another interesting feature of the juxtaposition of Marsh v. Chambers and INS v. Chadha–which seemingly take different views of the influence of custom on constitutional interpretation–is that Chief Justice Warren Burger wrote the majority opinion for the Court in both cases.

Posted on by Mark Movsesian · 2 Comments

Kent Greenfield on Same-Sex Marriage and the Slippery Slope

A post on the American Prospect site by Boston College law professor Kent Greenfield is getting a lot of attention, especially from opponents of same-sex marriage, like Princeton’s Robert George, who believe the Left has been unfairly maligning them as scaremongers for years. Greenfield, who supports same-sex marriage, thinks it’s time to confess something: Conservatives who argued that recognizing same-sex marriage logically implied the recognition of incestuous and polygamous marriages were right all along:

You know those opponents of marriage equality who said government approval of same-sex marriage might erode bans on polygamous and incestuous marriages? They’re right. As a matter of constitutional rationale, there is indeed a slippery slope between recognizing same-sex marriages and allowing marriages among more than two people and between consenting adults who are related. If we don’t want to go there, we need to come up with distinctions that we have not yet articulated well.

Greenfield attempts to come up with distinctions–moral opprobrium, child welfare, coercion, the immutability of sexual orientation, lack of representation in the political process–but concludes that none of them really works. Here’s his final paragraph:

If these distinctions do not hold water, we have two options. We can continue to search for differences that make sense as a matter of constitutional principle. Or we can fess up. We can admit our arguments in favor of marriage equality inexorably lead us to a broader battle in favor of allowing people to define their marriages, and their families, by their own lights.

A signal of marriage wars yet to come.

Posted on by JCPW

Cianitto, Durham, Ferrari & Thayer (eds.), “Law, Religion, Constitution”

9781472416131This August, Ashgate will publish Law, Religion, Constitution: Freedom of Religion, Equal Treatment, and the Law edited by Cristiana Cianitto (University of Milan), W. Cole Durham Jr. (BYU), Silvio Ferrari (University of Milan), and Donlu Thayer (BYU). The publisher’s description follows.

What is the place assigned to religion in the constitutions of contemporary States? What role is religion expected to perform in the fields that are the object of constitutional regulation? Is separation of religion and politics a necessary precondition for democracy and the rule of law? These questions are addressed in this book through an analysis of the constitutional texts that are in force in different parts of the world.

Constitutions are at the centre of almost all contemporary legal systems and provide the principles and values that inspire the action of the national law-makers. After a discussion of some topics that are central to the constitutional regulation of religion, the book considers a number of national systems covering countries with a variety of religious and cultural backgrounds. The final section of the book is devoted to the discussion of the constitutional regulation of some particularly controversial issues, such as religious education, the relation between freedom of speech and freedom of religion, abortion, and freedom of conscience.

Posted on by JCPW

Perry, “Human Rights in the Constitutional Law of the United States”

9781107666085This July, Cambridge University Press will publish Human Rights in the Constitutional Law of the United States, by Emory’s Michael Perry The publisher’s description follows.

In the period since the end of the Second World War, there has emerged what never before existed: a truly global morality. Some of that morality – the morality of human rights – has become entrenched in the constitutional law of the United States. This book explicates the morality of human rights and elaborates three internationally recognized human rights that are embedded in U.S. constitutional law: the right not to be subjected to cruel, inhuman, or degrading punishment; the right to moral equality; and the right to religious and moral freedom. The implications of one or more of these rights for three great constitutional controversies – capital punishment, same-sex marriage, and abortion – are discussed in-depth. Along the way, Michael J. Perry addresses the question of the proper role of the Supreme Court of the United States in adjudicating these controversies.

Posted on by Marc O. DeGirolami

Supreme Court to Hear Abortion Protest Restriction Case

The Supreme Court has granted certiorari in McCullen v. Coakley, a case out of Massachusetts involving a free speech challenge to a law that makes it a crime for speakers other than clinic “employees or agents…acting within the scope of their employment” “to enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of a “reproductive health care facility.” The Court’s decision in Hill v. Colorado (2000) is also arguably in play. In Hill, the Court (6-3) upheld a Colorado statute making it unlawful for a person within 100 feet of an abortion clinic entrance to “knowingly approach” within 8 feet of another person, without that person’s consent, in order to pass leaflets, display signs, or engage in oral protests, education, or counseling of that person.

See this post and the linked amicus brief authored by our friend and CLR Forum former guest Kevin Walsh for argument about how the Court could strike down the Massachusetts law in McCullen without overturning (or even disturbing the core holding of) Hill.

Posted on by Marc O. DeGirolami

Law and Religion in Justice Thomas’s Fisher Concurrence

As Supreme Court followers will already know, the Court issued decisions in several cases today, including an employment discrimination case, a case about the reach of the Necessary and Proper Clause (take note, my old students!), and, of course, a case dealing with affirmative action in public universities.

There isn’t much involving law and religion in any of these cases. But not nothing either. I am still digesting Fisher v. University of Texas, but the upshot seems to be a clarification of sorts by the Court that, in applying a strict scrutiny standard in this context, while deference is due to a university’s belief in the importance of “the educational benefits flowing from student body diversity,” deference is not due to the manner in which the university attempts to achieve the asserted interest in diversity (where narrow tailoring of the means to the end is necessary). Good faith efforts by the university to achieve narrow tailoring are not sufficient to satisfy the narrow tailoring element of strict scrutiny. Justice Kennedy, writing for the Court, offered this: “Strict scrutiny must not be ‘strict in theory but fatal in fact.’….But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact.” The case was vacated and remanded to the Fifth Circuit for reconsideration in light of the Court’s clarification of the applicable standard.

In a sizable and strongly worded concurrence, Justice Thomas agreed that the Fifth Circuit did not apply strict scrutiny but also argued that the Court should have overruled Grutter v. Bollinger, where the Court offered its fullest statement about educational diversity. Justice Thomas’s concurrence is framed in large part as a series of comparisons between arguments made by segregationists and arguments made by proponents of what he calls “race discrimination” in admissions, among which is the following:

Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life. See, e.g., Calhoun, Speech in the U. S. Senate, 1837, in P. Finkelman, Defending Slavery 54, 58–59 (2003) (“Never before has the black race of Central Africa, from the dawn of history to the present day, attained a condition so civilized and so improved, not only physically, but morally and intellectually. . . . [T]he relation now existing in the slaveholding States between the two [races], is, instead of an evil, a good—a positive good”); Harper, Memoir on Slavery, in The Ideology of Slavery 78, 115–116 (D. Faust ed. 1981) (“Slavery, as it is said in an eloquent article published in a Southern periodical work . . . ‘has done more to elevate a degraded race in the scale of humanity; to tame the savage; to civilize the barbarous; to soften the ferocious; to enlighten the ignorant, and to spread the blessings of [C]hristianity among the heathen, than all the missionaries that philanthropy and religion have ever sent forth’”); Hammond, The Mudsill Speech, 1858, in Defending Slavery, supra, at 80, 87 (“They are elevated from the condition in which God first created them, by being made our slaves”) . . . .

Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign. “‘[B]enign’ carries with it no independent meaning, but reflects only acceptance of the current generation’s conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable.” See Metro Broadcasting, 497 U. S., at 610 (O’Connor, J., dissenting). It is for this reason that the Court has repeatedly held that strict scrutiny applies to all racial classifications, regardless of whether the government has benevolent motives. See, e.g., Johnson, 543 U. S., at 505 (“We have insisted on strict scrutiny in every context, even for so-called ‘benign’ racial classifications”); Adarand, 515 U. S., at 227 (“[A]ll racial classifications, imposed by whatever federal, state,or local governmental actor, must be analyzed by a reviewing court under strict scrutiny”); J. A. Croson, 488 U. S., at 500 (“Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice”). The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.

Posted on by Marc O. DeGirolami · 2 Comments

Faith Healing and Criminally Negligent Homicide

In previous posts, I offered some arguments against the propriety of a charge of reckless murder (or depraved heart/indifference murder) in cases where parents who believe in faith healing fail to get medical assistance to prevent the death of their child. There may be some circumstances where such a charge is warranted, but if one stipulates that the parents truly believed in the power of faith healing and also truly believed that interfering with that power would damage the child’s chances of recovery, then I have a difficult time seeing how reckless murder–at least of the sort that is codified in New York and Pennsylvania–is the right charge. If you haven’t seen it, you should also have a read of Peter Berger’s latest column in which he discusses the issue of faith healing, law, and the power of courts to define reality. Professor Berger’s reflections, as one might expect, are less legal and more sociological. As always, they are fascinating.

In another faith healing case decided last Monday by the Oregon Court of Appeals (Oregon’s intermediate appellate court), State v. Beagley, the court upheld a conviction of criminally negligent homicide for two parents who had failed to provide medical care to their 16 year old child. The child, who was afflicted with a congenital abnormality causing progressive deterioration of the kidney, died after a three month period in which he became increasingly weak. The parents’ defense was that they (and their child) believed that faith healing–“prayer, the laying on of hands, and anointment with oil”–would cure the child. The opinion raises very interesting and difficult issues. It’s worth a read.

One of the defendants’ arguments on appeal was that a conviction for criminally negligent homicide under these circumstances violated their federal and state constitutional and/or state statutory religious liberty. That argument was rightly rejected. But it helps to highlight and, I think, clarify a confusion that sometimes crops up in cases like this. To say that a defendant does not have the requisite mens rea for murder is not the same thing as saying that he is “exempted” from a homicide charge on account of his religious beliefs. The first statement is attempting to pin down his precise mens rea within the framework of homicide under Oregon law; the second statement is saying that irrespective of his mens rea, a constitutional (or statutory) deus ex machina swoops down to lift him out of the state’s criminal justice framework altogether.

Oregon defines criminal negligence in a fairly typical way: failure to be aware of a substantial and unjustifiable risk that (in this case) the result will occur, where the risk is of such a nature and degree that failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. And Oregon recognizes that omissions can serve as the actus reus where the defendant had a duty to act (as parents do, for example). Oregon has a statute on the books related to faith healing which the court had previously interpreted to mean the following: “[T]he statutes permit a parent to treat a child by prayer or other spiritual means so long as the illness is not life threatening. However, once a reasonable person should know that there is a substantial risk that the child will die without medical care, the parent must provide that care, or allow it to be provided, at the risk of criminal sanctions if the child does die.”

In upholding the conviction, the court distinguished a very interesting, but also very confusing, case decided by the Oregon Supreme Court in 1995, Meltebeke v. Bureau of Labor and Industries, involving a civil sanction imposed by the Oregon Bureau of Labor and Industries on an employer who was accused of religious discrimination by “creating an intimidating and offensive working environment” after proselytizing an employee. The Oregon Supreme Court held that because proselytizing was a constitutionally protected religious “practice,” the state could not enforce its labor rule against the employer without violating the state constitution unless it could prove that the employer “knew” that the conduct would result in forbidden discrimination. But–and this is the confusing part–the Oregon Supreme Court distinguished between “conduct motivated by one’s religious beliefs” and “conduct that constitutes a religious practice.” Proselytism was a religious practice, and therefore demanded that the state prove a knowing state of mind. Other kinds of conduct which are not religious practices themselves but are only “motivated by religious beliefs” do not demand that the state prove a knowing state of mind.

The defendants in Beagley argued that in light of Meltebeke, they could not be convicted of criminally negligent homicide without suffering a constitutional violation. The state, they argued, had to prove that they knew that their child would die by engaging in faith healing and failing to get medical care for him. But the Oregon Court of Appeals rejected that argument. Though it expressed some justified puzzlement at the distinction in Meltebeke between a religious “practice” and “conduct motivated by religious belief,” it nevertheless held that “allowing a child to die for lack of life-saving medical care is clearly and unambiguously–and, as a matter of law–conduct that ‘may be motivated by one’s beliefs.'”

I’m not sure that this statement, however forcefully expressed, is persuasive, but the Court of Appeals was to some extent hemmed in by the confusing language of Meltebeke (Meltebeke was also limited to civil cases).

Setting aside the specifics of Oregon case law, however, there is another fact in Beagley that makes for an interesting parallel with the Philadelphia case. In Beagley, there was evidence that three months before their sons’ death, the parents’ granddaughter also died from lack of medical care. That evidence was admitted, the court said, to show that it was more probable that the defendants should have known that their son was in danger. It also showed, the court claimed, that the defendants did know that their son was in danger.

I agree with the proposition that this is further evidence that the defendants “should have known” that their son was in danger. But without more facts, I am not certain that I agree with the statement that evidence of the granddaughter’s death shows that they “did know” of their son’s danger. More evidence about their state of mind would be necessary before concluding that they were conscious of the risks that they were taking.

But in any event, charges of criminally negligent homicide or reckless manslaughter (but not reckless murder) both seem to me to be within the plausible range. And in both cases, Professor Berger is right to say that “by admitting the case[s] in the first place the court[s] already decided that divine healing as a substitute for modern medicine is ruled out by the legal definition of reality.” “Reality” here is brought to bear in these cases by the criminal law through the baseline mechanism of criminal negligence: one is criminally negligent if one should have been aware of certain risks and where one’s lack of awareness deviates in an extreme way from what reasonable people would do in the face of medical reality.

Posted on by Marc O. DeGirolami

Gerber on Religious Freedom in Rhode Island

Rhode Island is celebrating the 350th anniversary of its royal colonial charterRhode Island Seal this year. The occasion reminds me of one of my all-time favorite cases in constitutional law, Luther v. Borden, in which the struggle over the representative failings of the charter and all of the attendant political intrigue so typical of the Ocean State was deemed nonjusticiable by the Supreme Court. There aren’t too many Guarantee Clause controversies any longer, but you can still spot one every so often. As my former boss, Judge William E. Smith, put it to me: “Not much has changed around here since then.”

Have a look at this interesting short piece by Professor Scott Gerber (another law clerk veteran of the US District Court for DRI) discussing religious freedom in Rhode Island. Particularly interesting are Prof. Gerber’s points about Rhode Island’s complicated history and the distinction between “liberty and license.”

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Sullivan & Beaman, “Religious Freedom and Varieties of Establishment”

This July, Ashgate will publish Varieties of Religious Establishment edited by Winnifred Fallers Sullivan (SUNY Buffalo) and Lori G. Beaman (University of Ottawa). The publisher’s description follows.

During the past decade attention to the topic of religious freedom has grown exponentially. Examining the various forms religious establishment takes globally, from both theoretical and practical perspectives, this book argues that legal protections for religious freedom only make sense in a context of socially and culturally specific constraints. Leading international scholars from a diverse range of disciplines explore how countries today manage religious diversity.  Rather than adopting the common assumption that religious freedom is incompletely realized, the authors argue that the starting point should be what has historically been seen in the United States as freedom‘s evil twin – religious establishment. In the hyper-globalized world of the politics of religious freedom today, a focus on establishment brings into view background cultural assumptions, cosmologies, anthropologies, and institutions which are used to manage religion, as well as internal and external religious diversity. Establishment further reveals the limitations of universal, multicultural, and interfaith models. Disestablishment is impossible, as is religious freedom.