The Volokh Conspiracy

The National Football League has been the most successful professional sports league in the US over the last several decades. But economists Tyler Cowen and Kevin Grier argue that tort suits over concussion injuries might lead to its downfall:

Before you say that football is far too big to ever disappear, consider the history: If you look at the stocks in the Fortune 500 from 1983, for example, 40 percent of those companies no longer exist…. Sports are not immune to these pressures. In the first half of the 20th century, the three big sports were baseball, boxing, and horse racing, and today only one of those is still a marquee attraction.

The most plausible route to the death of football starts with liability suits. Precollegiate football is already sustaining 90,000 or more concussions each year. If ex-players start winning judgments, insurance companies might cease to insure colleges and high schools against football-related lawsuits. Coaches, team physicians, and referees would become increasingly nervous about their financial exposure in our litigious society. If you are coaching a high school football team, or refereeing a game as a volunteer, it is sobering to think that you could be hit with a $2 million lawsuit at any point in time. A lot of people will see it as easier to just stay away…. The end result is that the NFL’s feeder system would dry up and advertisers and networks would shy away from associating with the league, owing to adverse publicity and some chance of being named as co-defendants in future lawsuits.

This is a plausible scenario for the demise of professional football. But Cowen and Grier ignore an important countervailing factor: If tort lawsuits start to pose a serious threat to college and professional football, the NFL and other powerful interests that benefit from the sport won’t take it lying down. They will use their considerable lobbying clout to push for changes in tort law. Majority public opinion could well be on their side. Football is an extremely popular support, and many people might reason that the threat of concussion is just one of the risks that players voluntarily take on when they choose to participate in the sport.

Over the last twenty years, many states have enacted strong tort reform laws in order to curb dubious lawsuits that threaten the business climate in their jurisdictions. The reformed states include even the once-notorious “tort hellhole” of Alabama. If tort lawsuits start threatening the NFL, big-time college football, or even high school football in states like Texas, we might well see a new round of reform laws.

It’s possible, of course, that concussion injuries could lead to such a wave of public outrage that the NFL and Division I college football programs will be unable to resist the tide. But I am skeptical. Most fans already know that football is a dangerous sport, and that doesn’t seem to bother most of them much.

New polling shows a majority of Americans, and even a majority of self-described liberal Democrats, support drone strikes against suspected terrorists and keeping the Guantanamo Bay detention facility open.  The Advocacy Center for Equality and Democracy comments:

the polling data suggests that a significant number of people who identify as belonging to a political party (a) change their values to conform to the policies of their party, and/or (b) change their values to oppose the leader of the other party. Either is totally inconsistent with a citizen’s role in a democracy.

More here and here.  This is further confirmation of Kerr’s Law (as is much of the opposition to the individual mandate from those who used to support it).

Last week, I was a participant in the 2012 Fordham Debate at the University of Utah’s S.J. Quinney College of Law.  The topic was the constitutionality of the minimum coverage requirement (aka the individual mandate) of the Patient Protection and Affordable Care Act, and my interlocutor was David Orentlicher of Indiana University.  For those interested, here is the video of the debate.    Time permitting, I’ll write up a synopsis of my remarks as well.

In a thoughtful recent post, co-blogger Dale Carpenter takes issue with my argument that bans on same-sex marriage are best attacked on the grounds that they are unconstitutional sex discrimination, and parts of my post suggesting that a minimalist strategy in the gay marriage litigation is not likely to work. Dale is one of the leading academic experts on the law of same-sex marriage, so I take his points very seriously. Nonetheless, I remain unrepentant.

Dale argues that the sex discrimination argument is flawed because “(1) it obscures the heart of the equal protection issue, continuing exclusion of gay men and lesbians, and (2) it isn’t sufficiently attuned to the Court’s sex-discrimination cases, which do suggest a lower level of scrutiny when legislation addresses ‘real differences’ between men and women (like the capacity to get pregnant or, one might say in the marriage context, the capacity to procreate as a couple).” On the first point, I think this “obscurity” is part of the strength of the argument. The idea that discrimination on the basis of sexual orientation should be subject to strong judicial scrutiny has no roots in the original meaning of the Fourteenth Amendment and only a modest basis in recent precedent (Romer v. Evans). By contrast, sex discrimination has long been subject to heightened scrutiny, and, as I noted in my first post on the subject, there is growing recognition that this is consistent with the original meaning. Most important, as I explained in some detail in the earlier post, laws banning same-sex marriage do not in fact ban anyone from marrying anyone else because of their sexual orientation. Anne is free to marry Bob even if one of them is gay or lesbian. On the other hand, these laws do restrict marriage rights on the basis of gender. Bob cannot marry Colin solely because he is a man. The greatest strength of the sex discrimination argument is that it directly confronts what the anti-same sex marriage laws actually do: limit marriage rights on the basis of gender. Obviously, these laws may well be motivated in large part by hostility towards gays and lesbians. But it is generally easier to attack a law based on its actual text than on the possible motivations behind it.

On Dale’s second point, it is essential to recognize that bans on same-sex marriage do not actually “track ‘real differences’ between men and women.” Yes, only an opposite-sex couple can procreate by natural means. But traditional marriage laws do not deny the right to marry to couples where one partner is sterile, couples that are too old to conceive, and so on. These couples can, of course, acquire children by adoption. But the same goes for same-sex couples.

Dale also attacks my claim that gay rights advocates should make a full-blown argument for the unconstitutionality of same-sex marriage bans in this case because, as I put it, a defeat might “lay the groundwork for a later reversal, much as Bowers v. Hardwick helped set the stage for Lawrence v. Texas.” In his view, Bowers was an unmitigated “calamity” for gay rights because it “was used by courts to deny gay-rights claims in the military, in housing, in public and private employment, in custody, in child visitation, and so on. Politically, the presumptive criminal status of homosexuals was used as a reason to resist every proposal for gay-rights legislation, from hate-crimes laws to marriage, even in states that had no sodomy law.” As I see it, however, all of this would have happened even in the absence of Bowers. Had there been no Bowers, some states would still have retained anti-sodomy laws, and most people would still have assumed that those laws are constitutional. Indeed, the absence of any strong legal challenge to them would have reinforced that assumption. With Bowers, by contrast, anti-sodomy laws were upheld by a shaky 5-4 Supreme Court majority. When the Court splits 5-4 on an important constitutional issue, everyone realizes that that question is far from settled and that the Court might well reverse itself in the future. That’s a net gain for the side that lost the case if that side was the one trying to change the status quo.

Dale ends by suggesting that “Bowers ‘laid the groundwork’ for Lawrence only in the sense that Pearl Harbor paved the way for VJ Day.” This is actually not a bad analogy. Pearl Harbor did in fact lay the groundwork for VJ day. It did so by mobilizing American public opinion against Japan, leading to a strong determination to pursue the war until total victory. In retrospect, launching a surprise attack on Pearl Harbor was a terrible mistake by the Japanese that sealed their doom. Similarly, Bowers outraged liberals and gay rights advocates, while at the same time the narrow margin of defeat led them to realize that they could prevail in the future. And win they did.

A similar happy outcome in Perry is far from certain. Perhaps gay rights advocates will suffer a more lopsided defeat in this case than in Bowers, and thereby become demoralized. As I noted earlier, this lawsuit is probably premature. That said, the tide of opinion is rapidly shifting in favor of gay marriage, and – over time – the balance of power between the two sides will shift as well, even if not as rapidly as the balance between the US and Japan shifted in 1942. It is therefore unlikely that a defeat in Perry v. Brown will set back the cause of gay rights for very long. Perry may indeed turn out to be like Pearl Harbor. But perhaps not in the way Dale supposes.

I agree with some of what Ilya writes in response to my post on the Ninth Circuit’s Prop 8 decision and judicial minimalism.  As I noted in that post, the effect of striking down Prop 8 is certainly not small. California would be “by far the biggest prize” for same-sex marriage advocates.  Of course, it could have been written in a way calculated to produce an even larger effect, bringing same-sex marriage to every state with civil unions, or even to support a right to marriage for gay couples across the country. But requiring a state with 37 million people to accept gay marriage is pretty doggone big.

I also noted that it would be hard to draw the line, as the Ninth Circuit panel did in Perry v. Brown. The opinion explicitly limits its holding to California, where full rights and then marriage itself was given to same-sex couples but then marriage was retracted. I see no principled minimalist reason to justify this limitation. Perhaps there’s no rational-basis for granting full rights but not the dignitary status of marriage, because granting the full rights surrenders the core for refusing marriage (procreation and responsible child-rearing).  But it seems only judicial fiat further confines the decision only to states where the word marriage was given and then withdrawn. The effort to cabin the case to California, as opposed to the other civil-union states is the most unsatisfying part of the decision. That’s why I called it “judicial minisculism.”  I’ve also said repeatedly in these electrons that I think the Perry litigation is likely a loser that may set back the cause.  Reinhardt’s opinion seems to be an effort at harm reduction so that even a loss in the Supreme Court will be on narrow grounds.  We’ll see, alas.  On all of this, Ilya and I appear to agree.

We do disagree, however, on two things.  First, as I believe I’ve argued previously on this blog (I don’t have time now to chase it down), I don’t find the sex-discrimination argument terribly persuasive. It was popular among gay-legal academics in the 1980s and 1990s, and has been subject to extensive defense and critique (most notably in a fantastic exchange between Andrew Koppleman and Ed Stein), but it never caught on with courts and it’s mostly been dropped in gay-rights litigation.  It was hardly mentioned in the main attack on the same-sex-only sodomy law in Lawrence v. Texas.  Its main problems, very briefly, are that (1) it obscures the heart of the equal protection issue, continuing exclusion of gay men and lesbians, and (2) it isn’t sufficiently attuned to the Court’s sex-discrimination cases, which do suggest a lower level of scrutiny when legislation addresses ”real differences” between men and women (like the capacity to get pregnant or, one might say in the marriage context, the capacity to procreate as a couple).  To the extent courts care about sexist legislative purposes, it’s not obviously clear that the traditional definition of marriage is designed to reinforce the legal subordination of men to women. The law today makes spouses legally equal, regardless of sex.  It’s a debate that won’t end, and I recognize others may reasonably disagree.

My other disagreement with Ilya is less qualified.  He appears to believe that same-sex marriage advocates might be best advised to make maximalist arguments now, to go for broke, as long as they’re likely to lose anyway. A defeat, he writes, could “lay the groundwork for a later reversal, much as Bowers v. Hardwick helped set the stage for Lawrence v. Texas.”  Bowers marked progress in the sense that four justices did vote to overturn the Georgia sodomy law (and a fifth, Justice Powell, later said he’d probably made a mistake voting to uphold the law).  But Bowers itself was a calamity for the gay-rights movement, a 17-real-long plague that spread into every law at every level of government, state and federal. It was used by courts to deny gay-rights claims in the military, in housing, in public and private employment, in custody, in child visitation, and so on. Politically, the presumptive criminal status of homosexuals was used as a reason to resist every proposal for gay-rights legislation, from hate-crimes laws to marriage, even in states that had no sodomy law. Constitutionally, it was used to deny heightened scrutiny to classifications based on sexual orientation.  Its damage was so deep that many doubted the Court would even strike down Colorado’s Amendment 2. If you could jail homosexuals, Justice Scalia plausibly argued in dissent, why can’t you deny them protected status in civil-rights laws? Sure, the decision was reversed in Lawrence by a bare 5-vote majority, but Bowers so spooked the lawyers in that case that even they doubted the Court would reverse it. In my history book, Bowers “laid the groundwork” for Lawrence only in the sense that Pearl Harbor paved the way for VJ Day.  So, as a strategic matter, I’m very dubious about expansive claims for gay marriage in the federal courts. The risk of gay-marriage Pearl Harbor is too great, and the unpredictable damage done legally and politically could be profound and long-lasting.  Far better a shallow and narrow defeat under minimalism than a deep and wide defeat under maximalism.

The Legal Adviser to the Department of State, Harold Koh, delivered the keynote address at a UVA Law School conference on issues of conflicts over sovereign equality on Friday morning.  Notre Dame professor Roger Alford (who delivered a paper on the Lago Agrio Ecuador dispute at the conference) comments on Dean Koh’s speech at Opinio Juris.

Perhaps the most interesting aspect of his discussion was his spirited defense against accusations of hypocrisy. To the question “Why do you say things you don’t really believe?” he offered several replies.

First, he does no such thing. As he has said elsewhere, “I never say anything I don’t believe…. [I]f you hear me say something you can be absolutely sure that I believe it.”

Second, take what he says in context. He is not speaking as an academic. When he speaks as a Legal Adviser he does so as an advocate. The United States government is the client and he is speaking on behalf of that client. Just as a criminal lawyer will often change roles and serve as a prosecutor, defense counsel, judge, or academic, so too must an international lawyer recognize the different roles that he plays and speak accordingly. Moreover, a U.S. government lawyer must speak with due consideration of what has been said in the past and with due regard for the legal opinions of other lawyers in other U.S. agencies.

Third, sometimes his views have changed. “If there is anything inconsistent between what I said in a footnote when I was 29 and what I said now, then believe me now.” The specific example he gave was about congressional legislation. He said that in the past he often wrote with the assumption that Congress could pass statutes. But having served in Washington long enough he has come to accept that often legislation is simply not an option.

He did not contextualize that comment, so for now one can only speculate as to what he meant. My best guess—and it is only a guess—would be that many of his views about congressional acquiescence to the executive branch articulated in his well-known book The National Security Constitution (published in 1985 when he was 31) are no longer his current views. I say that because the sharpest divergence between Koh the academic and Koh the Legal Adviser comes in the Libya context with respect to the definition of “hostilities” in the War Powers Resolution.

You can judge for yourself whether those replies are persuasive. I personally am sympathetic to all three. I have no way to judge the first, but I have no reason to doubt it either.

Like Alford, I am sympathetic to all three and have no reason to doubt the first; his blog post goes on to other important observations.  But I want to add a comment on the question of where this notion that one speaks differently when one is in government than when one is purely an academic arises.  In Dean’ Koh’s speech, and in Professor Alford’s comment, the locus is the lawyer-client relationship.  Harold Koh is an advocate and, as he said in his UVA remarks (I was also in attendance), that distinct role sometimes means that he must accept that his clients will go for the “lawful but awful” alternative.  Moreover, there is a complicated question as to the hierarchy of legal advice – again, as he stressed, he is the Legal Adviser to DOS, but that makes him a very important lawyer amidst a group of also very important lawyers, including the DOD general counsel, the CIA general counsel, and many others – just in the national security field.

I am, as I indicated, very sympathetic to the position of the government lawyer or, really, policy-maker who must work to a position that is not entirely one’s own and must reflect other people’s views – and yet in the end be supported as the “position” of the administration.  That is hard for academics to swallow, as reactions to Harold Koh’s positions have sometimes shown; but, at the end of day, we academics live in David Lodge novels and have all the authority of the kibitzer. I of course include myself in that assessment.

One reason that the sense of betrayal and hypocrisy over positions that Harold Koh has taken as Legal Adviser has been so acute in some quarters, I believe, is that the academics indeed think of it as being a function of the lawyer-client relationship.  It’s a relationship that academics embrace, in one sense, but in another do not respect it – precisely because at bottom it seems somehow dishonest, insincere, and hypocritical even if a crucial aspect of an adversarial system.  In the context of “legal policy-making” in some loose sense rather than strictly part of the litigation system, it seems to be a bit of a dodge to reach conclusions at odds with one’s professorial declarations by reaching to advocacy for the client.

I don’t think this is the whole story, however.  The obligations at issue are more than just those of the attorney-client.  It is much more profoundly the obligations of a fiduciary – and those fiduciary obligations encompass policy makers in government who have no duties as attorneys.  One enters government at the senior policy-making role (including legal-policy of the kind that inevitably attaches to the general counsel positions, the senior DOJ and OLC positions, and others) as fiduciaries with a public trust.  It is democratically and constitutionally established by the election of the administration to which one belongs – and one is no longer a free agent, intellectually or politically.

One has to operate within the overall policies of this administration – and very often within the traditions, customary interpretations, formal and informal procedures, precedents, and prior decisions and understandings of the department and office.  This is not because it is legally binding strictly, because it might have nothing to do with “law” as such or “legal advice,” but because one is stepping into the shoes of, as Harold Koh once put it in remarking on his own office, a long line of predecessors upon whom others have relied.  The importance of fitting one’s own work within the long-run of the agency or department’s practices and judgments increases the legitimacy and trust that the public has in government; there are exceptions that require sharp breaks from the past, but the default position is that one operates as a fiduciary that looks to the past, sometimes long past, to the present administration and its decision-making, and to the preservation of the legitimacy of the office to the future and future administrations.

That is the obligation of a fiduciary – and it is far beyond the often merely instrumental obligations of the attorney-client relationship to advocate on a client’s behalf.  I have been impressed with Harold Koh’s concern to express that understanding of the role of senior government policy makers and lawyers.  I think he’s right about that, and right to emphasize it as a matter of good faith.  I hope that this understanding will carry over to future administrations, as well, of either party: it is part of the essential long-term coherence and legitimacy that makes democratic governance possible.  But it is far beyond the attorney-client relationship alone. It is a special form of agency, the agency of a fiduciary in a position of political authority.

In the ongoing search for a constitutionally minimal justification for Prop 8, Orin proposes a creative one – repudiating activist judges independent of the substantive merits of the amendment:

One rational reason to support a symbolic law like Prop 8 would be to issue a rebuke to the California Supreme Court that issued that decision, with the hope that such a public rebuke might influence the Court’s decisions in the future.  Different people will disagree on whether this argument is persuasive, but I think it satisfies the rational basis test.

To the extent this argument rests on the idea that Prop 8 inflicted only “symbolic” harm on same-sex couples, and thus is not not of constitutional concern, it is supported in the opinions of courts in states where same-sex civil unions are recognized but the designation of marriage is withheld.  The New Jersey Supreme Court’s opinion from 2006 would be one example.  As I wrote at the time, I disagree that the difference between “civil union” and “marriage” is purely semantic and unimportant – though that doesn’t by itself mean courts should require the state to grant the designation to same-sex couples.  Indeed, the fact that the word “marriage” is important and in more than a symbolic sense may be the one thing that SSM advocates and opponents agree upon.  Judge Reinhardt addressed the question at length in his opinion and other judges have convincingly, in my view, done the same.  I don’t want to rehash that argument here. At any rate, I don’t think Orin’s point about the judicial-discipline rationale depends on the idea that Prop 8 was a harmless withdrawal of some symbolic affirmation.  Under the rational-basis test, I suppose he’d say that even if some limited harm were collaterally imposed on same-sex couples the judicial-discipline rationale still survives judicial scrutiny.

The rational-basis test in Equal Protection doctrine and in other constitutional fields requires that a law (including a classification) be rationally related to a legitimate state interest. (When a classification affects fundamental interests, like voting, or discriminates on a suspect basis, like race, heightened scrutiny applies.) This ordinarily allows a poor fit between means and ends and accepts almost any governmental purpose as “legitimate.”

Assuming rational-basis review applies to Prop 8, there are two potential difficulties with a judicial-discipline rationale for it:

(1)  When a classification affects what the Court sometimes calls “personal” or private interests, like sex and family-living arrangements, the Court has applied a more aggressive scrutiny while sometimes calling it rational-basis review.  Think of the denial of food-stamp assistance specifically to “hippie communes” even though food stamps are not required benefits (Moore v. City of East Cleveland).  Think of the decision in Lawrence v. Texas, which some people regard as a rational-basis case and which invalidated a state sodomy law although there were some really thin public-health justifications for such laws.  Also, when a classification targets a group that has been subjected to widespread unreasoning prejudice, but nevertheless has not been given the extraordinary judicial protection of suspect-class status, the Court has similarly applied a heightened form of rational-basis scrutiny. Think, for example, of a law that strips all specific civil rights protections from homosexuals in order, inter alia, to conserve state enforcement resources to end discrimination that matters more or to protect the associational liberty of landlords.  (Romer v. Evans)  Or consider a city zoning restriction that forbids facilities for the mentally retarded (while allowing fraternity houses in the same neighborhood) on the asserted rational grounds that the home sits on a 500-year flood plain and that once every 500 years it will be harder to remove the residents for their own safety.  (Cleburne v. Cleburne Living Center).

Based on the Court’s precedents, Prop 8 is a candidate for something more than ordinary rational-basis review both because it classifies in the personal area of family life and because it targets a class of people long subjected to unreasoning prejudice and opprobrium. If that’s right, a court might well reject a judicial-discipline rationale on the grounds that it is unusually likely to be a cover for animus against the group or because the fit between means and ends is almost arbitrary.  Why, we might ask, take out our generalized frustrations with judges on the families of gay couples rather than in any 100 other cases or ways we might express this frustration?  To say that their interests don’t carry much weight in a campaign against judges, that they are acceptable collateral casualties in a larger cause, feeds the conclusion that the political process is infected with at least a casual disregard of them.

(2)  Even if we applied the customarily weak form of rational-basis review there would still be room to reject a  generic judicial-discipline rationale.  In the field of economic regulation, for example, rational-basis scrutiny has been applied in about the most flaccid way imaginable. Indeed, it has been so forgiving — finding just about any objective “legitimate” and any means “rationally” related — that it’s a wonder we bother repeating the mantra. It would be more honest, perhaps, if courts simply said, “Once we determine that the state is regulating an economic matter, in the way we understand what counts as an economic matter, the law will be deemed constitutional.  Full stop.”

Using the version of rational basis that applies to economic regulations and classifications, suppose a state supreme court invalidated a state health-insurance mandate by finding some right (say, substantive liberty, property, or contract protection) in the state constitution that is infringed by a health-insurance mandate. Then suppose the people, using the initiative process, passed a constitutional amendment overruling the decision and imposing health-insurance mandates on consumers of health care.  What would be the rational basis for such an amendment?  Two candidates are offered: (1) Health-care rationale:  The amendment is constitutional under the federal constitution because health-insurance mandates are rationally related to the legitimate objectives of controlling health-care costs and providing universal coverage. (2) Judicial-discipline rationale: The amendment is constitutional because, no matter whether health-insurance mandates are rationally related to the interests in cutting costs and providing coverage (indeed, even if they aren’t), it is rationally related to the people’s interest in showing judges who’s the boss.

Then suppose a group of liberty-loving citizens sue in federal court to have the amendment invalidated because it violates fundamental liberty rights of the kind endorsed by the state supreme court and because it is not even rationally related to any legitimate objective.  Leave aside the fundamental-rights argument for our purposes. Under traditional rational-basis scrutiny applied to economic regulations, the constitutional challenge to the health-care rationale is surely a loser. It might be debatable whether insurance mandates are a good idea, but the whole thrust of rational-basis review is to leave rationally debatable propositions to the political process.

The challenge to the judicial-discipline rationale would be more interesting.  Even under the traditional application of the rational-basis test to economic regulations, the legitimate objective and the means used to achieve it cannot be a complete mismatch.  The relationship cannot be arbitrary.  A legislature presumably could not, consistent with this approach, determine that banning the consumption of orange juice is rationally related to the state’s legitimate interest in preventing lung cancer caused by smoking cigarettes.  It’s not that banning the consumption of orange juice is an irrational means to any conceivable legitimate state interest, like say, promoting the apple-juice industry. And it’s not that reducing the incidence of lung cancer caused by smoking is an illegitimate objective.  It’s that the one has no relationship to the other.

So how would the judicial-discipline rationale fare in an economic case, like the challenge to the amendment imposing a health-insurance mandate? It’s not that rebuking or restraining judges can never be a legitimate objective of the voters or the legislature. Voters could, for example, use what Orin calls a Rose Bird strategy: recalling the judge or refusing to retain her in an election. And it’s not that the means of reversing a judicial decision can’t be a rational way of imposing a preferred policy, like say, mandating that everyone carry health insurance. It’s that achieving the legitimate objective of restraining judges by means that have no independent rational basis looks like a mismatch between ends and means. It’s not quite as arbitrary as comparing apples and oranges, because the voters have chosen something as an expression of their anger.

But unless we believe that the health-insurance mandate has an independent rational basis on its own merits – say, the health-policy rationale — then we really are saying that the rational-basis test is nothing but a splendid bauble. Voters and legislatures would have an automatic rational basis for anything they do, regardless of whether the substance of what they do has any rational justification. It can always be said that the state has acted to rein in the judges for a decision they’ve already made. And under that view, why couldn’t the voters issue a preemptive rebuke to the judiciary, anticipating a possible judicial decision in the future, even though the policy codifying the rebuke is irrational on its own terms?  The judicial-discipline rationale is the justification that swallowed the analysis.  X can impose harm on Y, in symbolism or substance, simply to punish Z.  If that’s right, it would be more candid to give up the pretense and just say that in any case where rational-basis review applies, there will be no review at all.

There’s plenty to like about a strong presumption of constitutionality in most areas of public policy, and plenty of room for debate about what that “most” should and shouldn’t cover.  But I can’t see much to like about an irrebuttable presumption of constitutionality. And whatever the merits of eliminating even minimal judicial review of almost all public policy, it is not an inescapable conclusion from the rational-basis precedents.

UPDATE: It occurs to me that the judicial-discipline rational might be more defensible if it has a sharper focus: it could be said that, whatever their views on the merits of the issue (like same-sex marriage), voters and legislators have a particular concern about judicial activism on that issue.  In other words, they haven’t banned gay marriage because they have a generalized anger about judicial activism (which really does seem to pick on homosexuals in a random way), but because they have a particularized concern about judicial activism on this very question of same-sex marriage.  This seems to me a stronger form of the judicial-discipline rationale because it is more directly linked to the amendment.

I see three continuing problems, however. One is that this more particularized judicial-discipline rationale starts to bleed into a substantive, merits-based justification. Why do voters and legislators think judicial activism in the area of same-sex marriage as opposed to judicial activism in many other areas must be reversed by an extraordinary action? That must have something to do with the merits of the issue. That leads to a second concern, which is that in cases where souped-up rational-basis scrutiny applies (Moreno, Cleburne, Romer, Lawrence), there is greater concern that neutral-sounding justifications (like the 500-year flood plain or saving food-stamp money) are simply a pretext for constitutionally impermissible animus or unadorned ”moral disapproval.” Third, even under the most forgiving form of rational-basis review this more particularized judicial-discipline justification still provides an almost automatic and unreviewable self-justification for everything the legislature or voters do. Every reaction to a decision, or even preemptive action on the issue, could be said to reflect a particular popular concern with judicial activism on that very issue.  Who could say otherwise, unless the rational-basis standard really demands minimal reasons that go to the merits of the issue itself?

So held the Hawaii Supreme Court, in Hamilton ex rel. Lethem v. Lethem (Haw. Feb. 7, 2012), interpreting the Hawaii Constitution, though in reasoning that could be seen as applicable to the federal Constitution and to other state constitutions. And the court concluded that even a noncustodial parent retains this right “with respect to that child’s conduct during the visitation period.”

Based on this constitutional right, the court concluded that, to warrant the issuance of a domestic restraining order based on alleged child abuse, there must be (1) a finding that “the parent’s discipline is [not] reasonably related to the purpose of safeguarding or promoting the welfare of the minor,” (2) taking into account “factors such as [a] the nature of the misbehavior, [b] the child’s age and size, and [c] the nature and propriety of the force used.”

The court left it for a lower court to apply this standard to the facts of the case. Here, though, are the facts as alleged by the child (a 15-year-old girl), which led to the issuance of a restraining order against the father:

Continue reading ‘Constitutional Right to Moderately Corporally Punish One’s Child’ »

In a recent post, co-blogger David Bernstein partially rejects my argument that a ban on same-sex marriage qualifies as sex discrimination. As David puts it:

On the one hand, I agree with Ilya that bans on same-sex marriage could be described as sex discrimination. On the other hand, from opponents’ perspective, the point is that “marriage” has been defined for several thousand years in Judeo-Christian culture as between a man and a woman, and retaining that definition is not sex discrimination.

The opponents’ argument, however, in no way refutes mine. Many forms of sex discrimination have “several thousand years” of tradition behind them, often backed by religion. Consider such cases as the exclusion of women from many professions, unequal divorce laws, the treatment of wives and daughters as the property of their husbands and fathers, and so on. The fact that a form of sex discrimination has existed for a long time and enjoys religious backing does not make it any less discriminatory.

I am also unmoved by David’s analogy between a ban on same-sex marriage and a hypothetical Israeli law under which boys are entitled to a state-recognized “bar mitzvah,” while girls only get a “bat mitzvah,” which has the same legal status but is less prestigious. If the bar/bat mitvah were a government-endorsed legal status rather than a private cultural and religious tradition, it would still be sex discrimination for the state to allocate that status on the basis of gender – especially if one of the two labels were in fact more prestigious than the other. I would say much the same thing about David’s hypothetical of a female monarch who wishes to be labeled a “king” rather than a “queen.” These examples only have intuitive appeal because in modern liberal society, we generally regard bar and bat mitzvahs and kings and queens as essentially equal to each other (though I recognize that many Orthodox Jews disagree as to the bar and bat mitzvahs). It therefore seems pedantic to insist on one label or the other. By contrast, most people see “civil union” as a lower status than “marriage,” even if the legal rights are identical.

Consider a law under which men are classified as “first class citizens” and women as “second class citizens.” Although the distinction was originally enacted for the purpose of asserting male dominance, recent legislation has given second class citizens the same substantive legal rights as first class citizens. But first class status remains more prestigious than second class. Assume also that the idea that women cannot be first class citizens is endorsed by thousands of years of religious and secular tradition. If a woman files a lawsuit claiming that the denial of first class citizen status is sex discrimination, she should surely win – at least under a constitution that either bans sex discrimination outright or subjects it to some form of heightened scrutiny.

As I said in my original post on this subject, not all forms of sex discrimination are unconstitutional. Current Supreme Court jurisprudence subjects gender classifications to heightened “intermediate” scrutiny without banning them completely; and I think this is roughly the right approach. If, for example, opponents of same-sex marriage can prove that legalizing it would inflict serious harm on children, then laws such as California Proposition 8 should not be invalidated. But government-sponsored sex discrimination does not become constitutionally permissible merely because it is backed by religion or tradition or because the discriminatory law in question is mostly symbolic in nature.

UPDATE: I have modified this post slightly in order to eliminate a few stylistic problems.

UPDATE #2: David responds to this post in an update to his original one:

Ilya starts his response by misapprehending my point. It’s not that marriage is “traditionally” between a man and a woman, and therefore limiting marriage to such is not sex discrimination. It’s that the very definition of the word “marriage” has, for hundreds or even thousands of year, been limited to relationships between men and women. Therefore, the argument would be that it’s not sex discrimination to limit the scope of state-recognized marriage to what comes within that definition, just like, e.g., it’s not sex discrimination to limit the title of King to men.

I don’t see how calling this a “definition” adds anything to the debate. Once the “definition” becomes a legal status assigned by the state, there is still sex discrimination f the status is awarded on the basis of gender. If the definition of marriage had, for many years been that it is a relationship between members of the same race, a law embodying that definition would still be an example of racial discrimination.

David also writes that “I want to reiterate that I agree that limiting marriage to opposite sex couples can accurately be described as sex discrimination; the question is whether it can also be accurately described in a different way, and if so, whether courts should stick their collective noses in the controversy by choosing which description they prefer.” As I said in the original post, the “different” description in no way undercuts the fact that the state is engaging in sex discrimination. There is no contradiction between the statement that laws against same-sex marriage discriminate on the basis of gender and the statement that they embody a long-standing definition of marriage. These claims are not mutually exclusive in any way, and both are in fact true.

Finally, David states that “if I’m following Ilya’s logic correctly, it would have been sex discrimination to limit the title of King to men, say, fifty years ago, when the title of Queen may have been considered relatively less important, but it’s not sex discrimination today. I don’t buy it. It was, by the logic of Ilya’s original post, sex discrimination then and it is discrimination now to limit the title King to men, but it also was just what the word ‘King’ meant then and now, and therefore not sex discrimination.”

As in the case of marriage, once “king” becomes a legal status as opposed to a mere word, it is sex discrimination if the state restricts that status on the basis of gender. In a society where there is no meaningful difference between the status of “king” and that of “queen,” however, it would not be sex discrimination if one word describes men who hold the position of monarch and the other women. Whether or not such a difference exists depends on various factors, including social context. Therefore, it is perfectly possible that limiting the title of “king” to men was an example of sex discrimination 50 years ago, but not today. In any event, whatever might be said of kings and queens, few today believe that marriages and civil unions are essentially the same thing, except for quirks of linguistic usage. Certainly not the supporters of Proposition 8, who devoted an enormous of effort to trying to pass a law ensuring that same-sex relationships cannot be legally considered marriages.

UPDATE #3: David has another update to his original post where he states:

The underlying purpose and therefore definition of marriage from thousands of years had nothing to do with race. So I agree that if, say, in the 17th century, instead of simply banning interracial marriage, a statute had simply defined marriage as not including interracial pairings that would be clear racial discrimination, even if “traditional”. By contrast, marriage was an existing form of male-female relationship that the state came to recognize…. so it wasn’t the state creating a sex distinction, it was the state recognizing a preexisting institution.

The state did not merely “recognize” a preexisting institution. It enshrined that institution into law and attached various legal privileges to it. The fact that the state’s official definition of marriage codified a preexisting understanding does not make that definition any less discriminatory. Let’s say that the definition of marriage as confined to same-race relationships had also existed “for thousands of years,” and was just as well-established as the definition of marriage as confined to opposite-sex relationships. Would that mean that a statute incorporating that definition into law is not race-discriminatory? Clearly, such a law would qualify as race discrimination, no matter how much people previously thought that marriage is, by definition, intraracial, or how long such a belief had persisted. The same logic applies to legal definitions of marriage that discriminate on the basis of sex rather than race.

On the one hand, I agree with Ilya that bans on same-sex marriage could be described as sex discrimination.  On the other hand, from opponents’ perspective, the point is that “marriage” has been defined for several thousand years in Judeo-Christian culture as between a man and a woman, and retaining that definition is not sex discrimination.

Imagine, for example, that having a bar mitzvah in Israel provided boys with various and important rights and obligations.   [Let me tighten the hypothetical a bit.] Imagine that in Israel, any thirteen year old Jewish boy could go to city hall and get a certificate of bar mitzvah, regardless of whether he had a religious bar mitzvah ceremony, and imagine further that this certificate provides the boys who get it with various important rights and privileges. Israel, recognizing that girls should be entitled to analogous rights, offers girls a [certificate of] bat mitzvah instead.  The bat mitzvah gives girls the same legal rights and obligations as boys, but because it’s not called a bar mitzvah, it’s less culturally significant and, according to critics bespeaks inequality (and in fact, while bar and bat mitzvahs don’t confer legal rights and obligations in Israel, it’s an important religious and cultural tradition. Girls don’t always get a bat mitzvah, and when they do, it’s rarely celebrated with the same vigor or considered as significant as a bar mitzvah in the same family).

A girl sues, demanding that she be entitled to a legally recognized “bar mitzvah.”  On the one hand, Ilya could rightly claim that by definition, denying her access to the status of “bar mitzvah” is sex discrimination.  On the other hand, defenders of limiting legally recognized bar mitzvahs to boys would rejoin that bar mitzvahs by definition, backed by hundreds of years of tradition and culture, are solely for males.

It strikes me that both sides have a point, and most likely the best thing for courts to do under such circumstances, where they’d basically just have to take sides in a culture war pitting feminists against religious and cultural traditionalists, is to stay out of it–so long as analogous rights and obligations are available to the plaintiff through an analogous ceremony certificate, in this hypo the bat mitzvah.

Disclaimer: While I don’t think that courts should recognize a right to same sex marriage by finding that the absence of such a right is sex discrimination, nor do I think courts should even take the position that is must be analyzed as sex discrimination, I support legislation providing for same-sex marriage. I’ll also add the disclaimer that I’m not addressing any other constitutional arguments that states must expand their definition of marriage to include same-sex couples.

UPDATE: Let’s add an interesting hypo to the mix: what if California, instead of having a domestic partnership law, instead created a new legal category called “same sex marriage” that had exactly the same rights and privileges as “marriage”, but every relevant statute that applied to marriage now applies to “marriage and ‘same-sex’ marriage”, or perhaps “‘traditional marriage’” and “‘same sex marriage’”.  Still sex discrimination if same sex couples aren’t eligible for “traditional marriage”? Again, I think that by definition the answer is yes, and by definition the answer is no.

FURTHER UPDATE: New hypo: A small European nation has a constitution that bans any form of sex discrimination.  The King  (who has only ceremonial duties) dies.  His daughter is next in line for the throne.  Even though she’d have the same legal rights, duties, and privileges either way, she demands to be crowned King, not Queen.  She points out that it’s sex discrimination that only men can be called “King”, argues that she will likely get less respect from her subjects if she is called Queen instead of King, and that the distinctions between “King” and “Queen” are rooted ancient patriarchy.  Valid sex discrimination claim?  Once again, my instincts are that (a) this, by definition is sex discrimination [or, more precisely, a classification based on sex and therefore subject to intermediate scrutiny under American law]; and (b) this, by definition, is also NOT sex discrimination, and if I were a judge I’d stay out of it.

RESPONSE TO ILYA: Ilya starts his response by misapprehending my point. It’s not that marriage is “traditionally” between a man and a woman, and therefore limiting marriage to such is not sex discrimination.  It’s that the very definition of the word “marriage” has, for hundreds or even thousands of year, been limited to relationships between men and women.  Therefore, the argument would be that it’s not sex discrimination to limit the scope of state-recognized marriage to what comes within that definition, just like, e.g., it’s not sex discrimination to limit the title of King to men. [And I want to reiterate that I agree that limiting marriage to opposite sex couples can accurately be described as sex discrimination; the question is whether it can also be accurately described in a different way, and if so, whether courts should stick their collective noses in the controversy by choosing which description they prefer.]

And if I’m following Ilya’s logic correctly, it would have been sex discrimination to limit the title of King to men, say, fifty years ago, when the title of Queen may have been considered relatively less important, but it’s not sex discrimination today. I don’t buy it.  It was, by the logic of Ilya’s original post, sex discrimination then and it is discrimination now to limit the title King to men, but it also was just what the word “King”  meant then and now, and therefore not sex discrimination.

If indeed the problem, as Ilya suggests, is that “civil union” doesn’t have the same cultural heft as “marriage,” then I think the argument is that everyone has the fundamental right to get “married,” which is a different argument for constitutionalizing for same sex marriage, and one that I don’t address.

FINAL UPDATE: When I say that marriage “by definition” has been a relationship between a man and a woman, I don’t mean that the government defined it that way.  Rather, the institution evolved, largely outside formal government, to bind a man and woman together into a long-term procreative relationship.  The fact that marriage is often NOT procreative these days (older couples and so on), and the core societal idea of marriage has shifted from pragmatic concerns to “life partner” are good policy arguments in favor of allowing gay marriage.  I don’t think it’s a good argument for denying the fact that the history of marriage and its relationship to the definition makes the equal protection constitutional argument somewhat dubious, as the definition was a result of the core purpose of the institution.  This is quite distinct from the example Ilya gives: “if the definition of marriage had, for many years, been that it is a relationship between members of the same race, a law embodying that definition would still be an example of racial discrimination.”  The underlying purpose and therefore definition of marriage from thousands of years had nothing to do with race. So I agree that if, say, in the 17th century, instead of simply banning interracial marriage, a statute had simply defined marriage as not including interracial pairings that would be clear racial discrimination, even if “traditional”.  By contrast, marriage was an existing form of male-female relationship that the state came to recognize (concubinage was another that has since died out) so it wasn’t the state creating a sex distinction, it was the state recognizing a preexisting institution.

Co-blogger Dale Carpenter argues that Judge Stephen Reinhardt’s recent decision striking down the California gay marriage ban is an attempt at “judicial minimalism” intended to make the outcome acceptable to a Supreme Court that is unlikely to rule that the Constitution requires nation-wide recognition of same-sex marriage. By “lowering the stakes,” Dale argues, Reinhardt gives the Court a way to affirm his ruling.

This may well be Reinhardt’s intention. But I am skeptical that it will work. Whatever one thinks of judicial minimalism generally, there is no minimalist way to strike down Proposition 8. Even if the impact of such a decision were limited to California, that in itself is a huge step. California is a state with some 37 million people. Moreover, the logic of Reinhardt’s decision is that there is no “rational basis” for denying same-sex marriage in a state that already permits same-sex civil unions that give couples the same substantive rights as marriage would. In addition to California, there are seven other states that permit civil unions without legalizing same-sex marriage, including major states such as Hawaii, Illinois, and New Jersey. Many other states are likely to enact civil unions over the next few years, because the idea is very popular, with even a plurality of Republicans supporting it, as of 2010. If the Supreme Court embraces Reinhardt’s reasoning, a state that enacts a civil union law would have to embrace gay marriage as well. That’s not a minimalist result confined to one or a few states, and the Supreme Court justices are likely to realize that.

On the other hand, Dale is probably right to argue that the Supreme Court is not going to rule that the Constitution requires recognition of same-sex marriage at a time when 44 states still forbid it. This suggests that the anti-Prop 8 suit was premature. It would have stood a better chance a decade or two from now, since public and elite opinion are both moving strongly in favor of gay marriage. In the meantime, however, the current lawsuit is likely to fail.

Given this reality, gay marriage advocates might be best served by making the strongest possible constitutional argument for gay marriage rather than trying to engage in “minimalist” hair-splitting that makes them look as if they are trying to evade the real issue, and is unlikely to persuade anyone who isn’t already committed to the cause. The Court might well still uphold Proposition 8. But such a defeat could lay the groundwork for a later reversal, much as Bowers v. Hardwick helped set the stage for Lawrence v. Texas.

In my view, the strongest available argument is that a ban on same-sex marriage qualifies as sex discrimination. Obviously, others will disagree, preferring to base their case on privacy arguments or on claims that discrimination against gays is unconstitutional. Regardless, this is the kind of argument that gay marriage supporters will have to make.

UPDATE: I am, of course, well aware that the anti-Prop 8 plaintiffs have made a variety of broader arguments during the course of the litigation. I do not mean to suggest that they are relying solely on “minimalist” claims. I just wanted to explain why a minimalist victory in this case is unlikely.

Eric Alterman has a bizarre column  in The Nation on billionaire Gingrich-backer Sheldon Adelson.  The column purports to be a celebration of the fact that “no one” is using a combination of Adelson’s Jewishness, money, somewhat shady reputation, and hawkishly pro-Israel views for anti-Semitic purposes. The column, however, really seems to be starts off with what reads like a passive-aggressive attempt by Alterman to goad his readers into loathing Adelson precisely for being a rich, somewhat shady, Jewish businessman with hawkishly pro-Israel views [while concluding that the absence of anti-Semitic attacks on Adelson shows is evidence of the "near-complete disappearance" of anti-Semitism.   I think it would help if I quoted the very first line of the column: "If a Jew-hater somewhere, inspired perhaps by The Protocols of the Elders of Zion, sought to invent an individual who symbolizes almost all the anti-Semitic clichés that have dogged the Jewish people throughout history, he could hardly come up with a character more perfect than Sheldon Adelson."].

The disingenuousness of the column became obvious when I reached this line: “Nobody has noted—at least not in public—that [Adelson's] agenda happens to be the one to which Jews accused of ‘dual loyalty’ or of being ‘Israel-firsters’ are alleged to have dedicated themselves.”

Even though I (unlike, I think it’s safe too assume, Alterman) don’t regularly frequent websites that traffic in attacking people for being hawkishly pro-Israel (much less for being rich or Jewish), I’ve seen plenty of attacks on Adelson on precisely the grounds that Alterman claims “nobody” is mentioning.  As confirmation, a Google search for Adelson Gingrich Israel-firster brings up 527 pages [and checking the first dozen-plus, it's all attacks on Adelson of the sort "nobody" is making, including one in Time magazine]; assumedly there are a lot more of a similar ilk that don’t use the relatively obscure “Israel-firster” language.

UPDATE: Alterman is not, of course, making the blatantly anti-Semitic suggestion that Nation readers should loathe Adelson because he’s a Jew.  Rather, he’s suggesting that Adelson is the kind of Jew Nation readers should loathe.  It’s perhaps akin to when Clarence Thomas’s critics accuse him of being an “Uncle Tom” or use similar race-tinged insults; they’re not arguing that one should loathe Thomas because he’s Black, but because of the kind of Black he is.  It’s certainly not KKK-style racism, and indeed those who engage in such slurs typically think of themselves as champions of anti-racism (as I’m sure Alterman, as an observant Jew, does with regard to anti-Semitism) but it’s ugly nevertheless.

FURTHER UPDATE: I’m not completely content with the “Uncle Tom” analogy, which is more like a Jew calling a fellow Jew “self-hating” (which is also ugly rhetoric).

A more precise analogy to Alterman’s column is suggested by a commentor: A conservative black columnist writes a column about a shady, black hip-hop artist/producer  giving tons of money to a liberal presidential candidate, purportedly to promote an agenda of affirmative action. The columnist suggests that that the producer’s flaws are of exactly the type that racists traditionally associate with black people, which he then enumerates. The columnist adds that he is “thrilled” that criticism of the rapper never invokes racist themes–even though, in fact, such criticism sometimes invoked the very themes the columnist suggested would be signs of racism, generally among the columnist’s own ideological bedfellows–and suggests that racism has nearly disappeared, and groups like the NAACP should stop raising it in debates on the subject.

Of course, racism is more prevalent and more virulent in the U.S. than is anti-Semitism, but the point is that sheer disingenuousness of a column criticizing a controversial black person in racial (albeit not racist) terms, as the embodiment of the worst stereotypes racists have about Blacks, and then editorializing that thank god my ideological allies and others aren’t criticizing this person in those terms–even though sometimes they are!–and that this shows that racism is just a left-wing bogeyman that groups like the NAACP should stop invoking, would be obvious.

Tags: Eric Alterman

For readers who may be interested, Immigration Daily recently reprinted my November post on “What’s Distinctive About America.”

No, claims the plaintiff in Wong v. Hard Drive Productions, in the Northern District of California. Here’s what Judge Young of the District of Massacusetts had to say about the issue recently:

[T]t is a matter of first impression in the First Circuit, and indeed is unsettled in many circuits, whether pornography is in fact entitled to protection against copyright infringement. Copyright protection in the United States was “effectively unavailable for pornography” until the landmark decision by the Fifth Circuit in Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 854–55, 858 (5th Cir.1979) (holding that the Copyright Act neither explicitly nor implicitly prohibits protection of “obscene materials,” such as the films at issue there, and rejecting the defendant’s affirmative defense of “unclean hands”). See also Jartech, Inc. v. Clancy, 666 F.2d 403, 406 (9th Cir.1982) (stating, in the context of copyright infringement of a pornographic film, that “[p]ragmatism further compels a rejection of an obscenity defense” because “obscenity is a community standard which may vary to the extent that controls thereof may be dropped by a state altogether”). Compare Devils Films, Inc. v. Nectar Video, 29 F.Supp.2d 174, 175–77 (S.D.N.Y.1998) (refusing to exercise its equitable powers to issue a preliminary injunction against infringement of pornographic films and “commit the resources of the United States Marshal’s Service to support the operation of plaintiff’s pornography business,” holding that the films were “obscene” and illegally distributed through interstate commerce), with Nova Prods., Inc. v. Kisma Video, Inc., Nos. 02 Civ. 3850(HB), 02 Civ. 6277(HB), 03 Civ. 3379(HB), 2004 WL 2754685, at *3 (S.D.N.Y. Dec. 1, 2004) (holding that the question of whether particular pornographic films are “obscene” is one of fact for the jury, and that, even were the films deemed to be obscene, it would not prevent their protection under a valid copyright) (citing Jartech, Inc., 666 F.2d 403; Mitchell Bros., 604 F.2d 852). Congress has never addressed the issue by amendment to the Copyright Act. See Ann Bartow, Pornography, Coercion, and Copyright Law 2.0, 10 Vand. J. Ent. & Tech. L 799, 833 (2008).

Liberty Media Holdings, LLC v. Swarm Sharing Hash File AE340D0560129AFEE8D78CE07F2394C7 B5BC9C05, — F.Supp.2d —-, 2011 WL 5161453 (D.Mass. 2011) (Young, J.).

That’s the title of a new article by Gary Lawson and me, forthcoming in a symposium issue of Boston University’s American Journal of Law & Medicine. The Journal has a large readership among medical professionals who are interested in legal issues relating to medicine. Accordingly, if you have been following the VC’s debate on the ACA over the past couple years, most of what is in the article will already be familiar to you. Here is the abstract:

The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.” The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions of the statute are challenged. We then, using “unconstitutional” to mean” inconsistent with an original social understanding of the Constitution’s text (with a bit of a nod to judicial precedents),” show that the individual mandate in the PPACA is not authorized by the federal taxing power, the federal commerce power, or the Necessary and Proper Clause and is therefore unconstitutional.

If you happen to be around Charlottesville tomorrow, Friday, February 10, you might want to come over to a symposium on how to resolve conflicting legal norms in US and foreign courts:

The conference – organized by the student-run Virginia Journal of International Law and the John Bassett Moore Society of International Law – will explore how to resolve conflicting legal norms found in the United States and abroad, particularly as domestic laws extend their reach beyond countries’ borders. ”Although domestic and foreign legal norms have always interacted, the particular issues that will be addressed during our 2012 symposium have yet to be given significant attention in legal scholarship,” said third-year law student Zach Torres-Fowler, managing editor of the Virginia Journal of International Law.

The keynote speaker for the conference will be the Honorable Harold Koh, Legal Adviser to the State Department, speaking at 9 am Friday; and the day’s panels feature many leading professors.  If the sponsors post up podcasts or video, I’ll come back and link to it later, but I believe papers from the conference will be published by the Virginia Journal of International Law.  The topic has always been around, but is an increasingly important one – conflicts of norms and how courts around the world should resolve them.  Leaving aside the much discussed question of constitutional norms and foreign courts, the whole body of “ordinary” law presents many conflicts questions in novel areas.

For example, the Second Circuit ruled against Chevron in its on-going dispute with Ecuadorian plaintiffs, and the US court talked about “comity” and respect for other legal systems in its opinion.  In other cases, on the other hand, many involving the Alien Tort Statute (which, as my earlier post noted, will be revisited by the Supreme Court), US courts essentially ignore local courts or courts that plainly have a closer nexus of jurisdiction in favor of jurisdiction of US courts found under the ATS.  As the amicus filings of Germany, the UK, and the Netherlands indicate in the Kiobel case – revisiting the ATS in the Supreme Court this term – this creates considerable friction with other states.  But there are many other situations that weren’t really seen in earlier periods – libel tourism, for example, and the clash of free expression and libel norms between the US and the UK.  So although the topic of conflict of legal norms appears quite abstract, it actually takes up some of the most pressing issues among court systems of the world.

I’ll be moderating one of the panels – and I had better get on the road down to C’ville.  Hope to see you there!

In contrast to Judge Walker’s maximalist opinion striking down Prop 8, it’s generally accepted that Judge Reinhardt’s opinion was minimalist.

There’s a commonsense way in which the opinion is not at all minimalist. It reverses the results of a plebiscite, which followed the expenditure of $80 million and the mobilization of millions of voters. It brings full same-sex marriage to a state whose cultural, political, and legal influence on the rest of the country outstrips even its massive population. It’s by far the biggest prize (sorry, New York) in the fight over gay marriage. Advocates on both sides know this. Winning California is not the beginning of the end, but it is at least the end of the beginning.

In legal terms, as well, minimalism may not precisely describe the opinion.  Reinhardt decided that Prop 8 was unconstitutional on Equal Protection grounds only in the specific and unusual circumstances of California, which are not likely to be repeated: full rights and non-marital status given to same-sex couples, followed by court-granted marital status, followed by actual marriages, followed by popular denial of marital status but leaving in place full rights. Whether the opinion can really be cabined to apply only to these unique circumstances is doubtful.  Can you really say, as a colleague of mine commented today, that the state must move you from the middle of the bus to the front, but not from the back of the bus to the front? But suppose the decision really is a constitutional ticket good-for-this-ride-only (like the Supreme Court’s decision in Bush v. Gore). Minimalism is not the narrowest possible ground on which a court can rule.  It’s the narrowest plausible grounds on which a court can rule, with at least some theoretical underpinning that helps us understand it as a principled decision, even if a badly principled decision, rather than as simply an order.  The panel’s decision is not so much under-theorized in the way minimalists love; it hardly has any theory.  It is so minimalist one might call it minisculist.

Here’s a way we might understand what the panel is doing with such a narrow and shallow opinion. For all the complaints about its activism, the Supreme Court usually moves incrementally. For all the complaints about its countermajoritarianism, it rarely resists a strong national consensus for very long. One very crude way to measure the degree of the Court’s activism and countermajoritarianism is to ask, in a given case, how many states have had their public policy thwarted by a Supreme Court decision holding a policy unconstitutional?  On the aggressive end of the spectrum we have Roe v. Wade, now regarded by many commentators on both sides of the issue as having been too aggressive and as unlikely to be repeated barring a radical change in the Court’s composition.  Roe effectively invalidated the abortion laws of all 50 states, none of which were sufficiently liberal for the Court. On the other end of the spectrum we have Griswold v. Connecticut, which invalidated only the novel Connecticut ban on the use of contraceptives — even by married couples.  In between Roe and Griswold on the spectrum, we have sodomy laws, decided against the constitutional claim when 24 states had such laws (Bowers v. Hardwick in 1986) but in favor of the claim when only 13 states had such laws (of which only four applied solely to homosexual sex and none of which were actively enforced) (Lawrence v. Texas in 2003); and we have anti-miscegenation laws, struck down when 16 states still had them (Loving v. Virginia in 1967).

Where does the Prop 8 litigation stand on this spectrum between invalidating 50 state laws and invalidating only one? Using Walker’s logic (including a fundamental right to marry) the Court would effectively invalidate the laws of, at present, 44 states that do not recognize same-sex marriage, thirty of which ban it in their state constitutions.  That puts it close to Roe territory, a land the Court has pretty much stopped inhabiting (see, e.g., Washington v. Glucksberg).

But using Reinhardt’s logic (again, taking it only on its explicit terms, not in terms of the way it might ultimately be used) a Court would strike down only the law in California.  That brings it, on the spectrum of judicial aggressiveness, closer to Griswold than to Roe.  This is one way to understand Reinhardt’s almost complete reliance on Romer v. Evans, which struck down the law of only one state.  In fact, moving the litigation toward the Griswold end of the spectrum makes it somewhat less likely that the Court will even hear the case, though I share the expectation of my co-Conspirators that the Court is likely to review the issue.  I don’t want to suggest that in its constitutional decisionmaking the Court simply tallies the number of states it has to take on and then decides to act based on the breadth and depth of the likely backlash. That would be reductive and unfair, when in fact I believe the Justices are thoughtful and try to be principled. But it’s hard to believe that considerations of backlash and a welcome humility in the face of a deep national consensus play no role in the Court’s decisionmaking.

Reinhardt’s way of deciding the case does mean that a win for same-sex marriage advocates (through a denial of cert or a Reinhardt-style Supreme Court opinion) is less complete, at least in the immediate future.  More litigation, and more appeals, testing the logic would follow for years, even if the end result is pretty clear.  But it also means that a loss in the Supreme Court could be much more narrow, potentially rejecting only what Jason Mazzone has quite persuasively argued is a strained reading of Romer. Other, more completely theorized, arguments for same-sex marriage based on sex discrimination (which Ilya prefers) or sexual orientation discrimination (which others find more persuasive) or the denial of a fundamental right (as Walker believed) would still be open.  In this way, Reinhardt’s opinion lowers the stakes for same-sex marriage advocates even as it hands them potentially the most important victory yet.

This month’s Cato Unbound is devoted to the propriety of judicial enforcement of substantive rights through the Due Process Clause.  Tim Sandefur of the Pacific Legal Foundation gets things rolling with a rousing defense of SDP. Responses have been posted or are due from Professor Larry Rosenthal of Chapman Law School, attorney Ryan Williams (the author of an important recent article on the origins of substantive due process that I blogged about here), and B.U. Law School’s Gary Lawson.  It should be a very enlightening and engaging debate.

For what it’s worth, I’d like to see Sandefur address the following issue as the debat goes on: if we were to agree arguendo that the Due Process Clause protects unenumerated substantive rights, how aggressive should the judiciary be in identifying and enforcing those rights?  Are there, for example, instances in a which a judge could rightfully conclude that if he were a state legislature he would find a particular piece of legislation an undue interference with individual rights, and therefore vote against it as contrary to substantive due process, but as a judge he should defer to the contrary views of the legislature?

Young, a libertarian herself, explains why she is very uncomfortable with Ron Paul’s views on foreign policy. I suspect the column reflects the views of many other libertarians who appreciate Ron Paul’s long record of defending individual freedom, but wouldn’t want him anywhere near the Oval Office because of his foreign policy positions, among other things.

What I think many libertarians of my acquaintance, including Young, would like is for the U.S. to adopt a less interventionist foreign policy more cognizant of the limits of government competence and the dangers of unintended consequences, without coming anywhere near adopting the sort of Chomskyite critique of U.S. foreign policy that sometimes emanates from Paul, and even more so some of his “left”-libertarian supporters.  Unfortunately, save poor Gary Johnson, who couldn’t even get into the debates, the GOP field this year has offered a choice between an even more bellicose and interventionist foreign policy, and Ron Paul. (George W. Bush’s opposition to “nation-building” sounded pretty good to many libertarian ears in 2000, but the follow-through, shall we say, left something to be desired).

As I have occasionally noted here at VC, this term the Supreme Court will hear an Alien Tort Statute case, the Kiobel case, in which a primary question is whether the ATS embraces a theory of corporate liability.  The Supreme Court presumably took the case because of a circuit split that has arisen over the corporate liability question, and perhaps because of a sense that the exceedingly vague guidance of its last visit to the ATS, the Sosa decision, left many crucial items open.

The case has attracted intense interest among outsiders, professors particularly – 19 amicus briefs filed on behalf of plaintiffs, and 16 on behalf of defendant corporations. (I signed one, despite my general reservations about scholars’ amicus briefs (drawing upon Richard Fallon’s article, which I have blogged about here at VC, including a response by Amanda Frost), mostly because I know this subject matter very well and believed that if called upon, I could have drafted the brief I signed myself.)

Former DOS Legal Advisor John Bellinger writes at Lawfare that the governments of Germany, the UK, and the Netherlands have filed amicus briefs in support of corporate defendant Shell Oil; the Obama administration filed a brief in support of plaintiffs.  (His post at Lawfare provides links to most of the briefs or the ABA site with amicus brief links.)

Here is what I wish could be got in front of the justices. (I am not a litigator, so I don’t pretend to know how one would frame this substantive point in a way so as to put it in a brief.)  The basic question is whether the ATS is a statute about international law or whether it is instead a statute that enforces something we might call the “law of the hegemon.”  The District Courts have been told, and seem largely to believe, that what they do by way of a universal jurisdiction statute – allowing foreigners to sue foreigners in tort for conduct taking place entirely outside of the United States or having any connection to it save through the ATS itself – as civil law remedies against juridical persons is a faithful expression of international law.  I – along with the foreign governments filing amicus briefs – would beg to differ.  There is no regime of international civil liability, nor is there liability for juridical persons; many fine scholars disagree, of course, and you can find their views in the amicus briefs supporting the plaintiffs.

A better explanation of the ATS as it is currently instantiated is that it is the law of the hegemon, masquerading as international law.  It is US law of tort and civil liability, and the US law of corporate liability, extended by US statute to encompass all actors worldwide and universally.  The standards laid down in Sosa – even leaving aside the questions of corporate liability or universal civil jurisdiction – are thoroughly US-centric.  They require that “international law” be interpreted through the lens of a 200+ year old American statute consisting of one sentence; look to historical interpretations of what Congress might have intended about international law of the day in order to tell the District Courts how to interpret today’s international law; impose American law notions of prudential restraint by courts that are driven in considerable part by domestic law separation of powers concerns, not international law as such even though those concerns establish what “international law” is available for deployment; use American concepts of civil and corporate liability to fill in “gaps” in international law; and perhaps most strikingly, look to American courts as the precedential authority on how to interpret international law.

That, it seems to me, is what a hegemon does when simply carrying its law to the rest of the world.  It is also what a legal system does when what matters to it is its “internal” legitimacy – its fidelity to its own hierarchy of authority and interpretation.  I want American courts to remain internally faithful to their distinct hierarchy of Constitutional legitimacy; yet this is not how the “doctrine of sources,” even in a loose sense, operates in international law.  And while I’m not un-attracted by US hegemony, to be sure, and while I’m also not entirely convinced of the universality of international law, either – still, even a semi-skeptic like me does think it a mistake to confuse “hegemonic law” with “international law.”

A mistake, that is, if for no other reason than that the hegemon seems somewhat in decline.  (“Ne serait-ce point une Amerique lasse de son metier?” as Stendhal (might have) put it.)  Does one really think that the federal judiciary, without further instruction from the Congress, ought to set the terms for how China’s corporations behave in Africa, lacking further connection to the United States on any traditional basis of jurisdiction? I’m all for American hegemony, but in today’s world, even I think it a bridge too far – and quite ungrounded in international law as such.

How one gets that concern in front of the Supreme Court, I have not the faintest idea.  But I do think it is the overarching intellectual and political question at stake.

Tags: Alien Tort Statute, ATS

From Matter of Rubino (N.Y. Sup. Ct. Feb. 1, 2012, posted online Feb. 7); the last three paragraphs, which discuss free-speech-related factors as to the magnitude of the penalty, are particularly interesting, though debatable:

In 1995, petitioner, a tenured teacher, began working for respondent New York City ]Department of Education (DOE). (Pet.). In February of 1997, she began working at Public School (P.S.) 203 in Brooklyn. (Petitioner’s Appendix [Pet. Appx.]).

On June 22, 2010, a New York City public school student fatally drowned during a field trip to the beach. On June 23, 2010, after the school day was over and petitioner was at home, she posted the following on her Facebook page: “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!” One of her Facebook friends then posted, “oh you would let little Kwame float away!” to which petitioner responded, “Yes, I wld (sic) not throw a life jacket in for a million!!”

After viewing petitioner’s postings, one of petitioner’s Facebook friends, a P.S. 203 colleague, contacted the school’s assistant principal and expressed concern about the propriety of the postings…. [The hearing officer found that petitioner had engaged in "misconduct, neglect of duty and conduct unbecoming her profession” based on the comments and on the teacher’s allegedly “directing her friend, Joanne Engel, to provide false information to investigators by claiming to have written the comments on [petitioner's] Facebook.com webpage … so that [petitioner] would not get in trouble.” –EV]…. In deeming termination the appropriate penalty for petitioner’s misconduct, the hearing officer emphasized the public nature of online postings and noted that petitioner had breached DOE’s trust by conspiring with her friend such that “it is impossible for her employment to be continued” and that teachers should instill in their students the importance of taking responsibility for their actions….

[The judge held that the finding of misconduct was not arbitrary and capricious -- the legal standard used for review of such decisions under New York law -- and found that he could not consider the First Amendment arguments as to that finding. But he then turned to the magnitude of the penalty:]

The standard for reviewing a penalty imposed after a hearing held pursuant to Education Law § 3020-a is whether the punishment imposed “is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness.” … Here, petitioner’s 15-year employment history with the DOE was unblemished before she posted the offensive comments, and she posted them outside the school building and after school hours. Moreover, there is no indication in the record, nor any finding, that her postings affected her ability to teach.

There is also no evidence that her postings injured her students or that she intended any injury. Although the hearing officer emphasized the public nature of her postings and her creation of an “electronic footprint,” she made no finding as to their effect on petitioner’s past and future students. And, the specter of racism emerging from the postings did not originate with petitioner, and there is no indication in the record apart from the posting that she is intolerant or that the feeling she expressed, made after a hard day at work, affects the manner in which she teaches and treats her students.

While [for procedural reasons] I do not address the hearing officer’s determination as to the alleged violation of petitioner’s first amendment right to freedom of speech, in these circumstances, termination of petitioner’s employment is inconsistent with the spirit of the first amendment. Facebook has rapidly evolved from a platform used solely by American college students to a world-wide social and professional network. It is commonly used to advertise businesses, organize parties, debate politics, and air one’s grievances, among myriad other uses. Indeed, with Facebook, as with social media in general, one may express oneself as freely and rapidly as when conversing on the telephone with a friend. Thus, even though petitioner should have known that her postings could become public more easily than if she had uttered them during a telephone call or over dinner, given the illusion that Facebook postings reach only Facebook friends and the fleeting nature of social media, her expectation that only her friends, all of whom are adults, would see the postings is not only apparent, but reasonable. While her reference to a child’s death is repulsive, there is no evidence that her postings are part of a pattern of conduct or anything other than an isolated incident of intemperance.

Moreover, there is no reason to believe that petitioner will again post inappropriate or offensive comments online, as she repeatedly apologized during the administrative hearing for the posts, and expressed tearful remorse at oral argument before me….

And, while students must learn to take responsibility for their actions, they should also know that sometimes there are second chances and that compassion is a quality rightly valued in our society. Ending petitioner’s long-term employment on the basis of a single isolated lapse of judgment teaches otherwise. While I do not condone petitioner’s conduct and acknowledge that teachers should act as role models for their students, termination in these circumstances does not correspond with the measure of compassion a teacher should show her students. Rather, it places far too great a strain on the right to express oneself freely among friends, notwithstanding the repulsiveness of that expression. (Cf Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 US 557, 574 [1995] ["the point of all speech protection ... is to shield just those choices of content that in someone's eyes are misguided, or even hurtful."]; Texas v Johnson, 491 US 397, 414[1989] ["If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."]). …

Conservative columnist Jeff Jacoby has a good article today on the somewhat overwrought criticism of Justice Ruth Bader Ginsburg for saying, in Cairo, that the US Constitution is not a good model for other countries in 2012. As Jacoby points out, conservative Justice Antonin Scalia recently actually said that “[t]he bill of rights of the former ‘evil empire,’ the Union of Soviet Socialist Republics, was much better than ours,” without raising any such hackles. Scalia avoided criticism in large part because he quickly added that a good constitutional text has little value if isn’t enforced. But, as Jacoby notes, Ginsburg added much the same qualification in Cairo.

Generally speaking, Ginsburg is absolutely right to suggest that the US Constitution is not an ideal model for every foreign nation. There are lots of ways in which our institutions might be inappropriate for other nations in different circumstances. For example, the US presidency concentrates enormous power in the hands of one person. That might be very dangerous in a society that has only recently emerged from dictatorship. Countries such as Switzerland have done fairly well with a plural executive. A small country that wages few wars has less need of a powerful, unitary executive than a global superpower. Similarly, the US system of federalism might not be the best model for the many societies where the main purpose of federalism is to mitigate ethnic conflict by giving minority groups subnational governments that they control. And a few provisions of the US Constitution are simply outright mistakes by the Founding Fathers that no one would want to imitate.

That said, I am much less sympathetic to Ginsburg’s specific reasons for preferring other models over the US Constitution. She would “look at the constitution of South Africa,” because it “was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights.” Obviously the US Constitution embraces many “basic human rights” as well. The rights present in the South African Constitution that are absent from ours are mostly “positive” rights to welfare state services, such as government guarantees of housing and employment. In many countries that have constitutions with such positive rights, the rights in question are not legally enforceable, so they have little actual impact. Where they do have an effect, the result is usually to increase government control over the economy and society, an outcome that I deplore for reasons I summarized here. In theory, of course, these positive rights provisions could be used to strike down harmful government actions, such as restrictive zoning laws that price the poor out of urban housing markets, and labor regulations that increase unemployment among unskilled workers. In practice, however, positive rights guarantees are rarely applied in ways that constrain government power rather than expand it.

As for Scalia’s statement, if he really believes that that Soviet Constitution’s individual rights provisions are “much better” than ours, he may not have read the former very carefully. Chapter 7 of the 1977 Soviet Constitution did indeed guarantee numerous individual rights. But many of them are socialist “positive rights” that I doubt Scalia would approve of. In addition, Article 52 gives, atheists, but not theists the right to engage in “propaganda” on behalf of their views on religion. Religious believers were (at least on paper) guaranteed freedom of worship, but, unlike atheists, could be banned from proselytizing. I doubt that Scalia would approve of this double standard.

More importantly, Article 59 emphasizes that “Citizens’ exercise of their rights and freedoms is inseparable from the performance of their duties and obligations,” and those duties include “comply[ing] with standards of socialist conduct” (Article 59) and “safeguard[ing] the interests of the Soviet state, and …. enhanc[ing] its power and prestige” (Article 62). Thus, the individual rights in the Soviet Constitution could be overriden in any cases where they conflict with “standards of socialist conduct” or somehow threaten the interests of the Soviet state or its “power and prestige.” All of this should also be read in light of Article 6, which guaranteed the Communist Party a monopoly of political power. That, presumably, is one of the “interests of the Soviet state” that can be used to limit individual rights. A careful reading of the Soviet Constitution – or even just the individual rights sections – leaves little doubt that it was written for a totalitarian communist state.

Obviously, Scalia was absolutely right to note that the Soviet government was perfectly capable of ignoring its own laws whenever it suited them to do so. At the same time, they did try to maintain a veneer of legality when possible and the Soviet Constitution was designed to help them do that. There is often a closer connection between the text of a constitution and the true nature of a nation’s political system than Scalia implies.

The Washington Post has an excellent front page story by Greg Miller today, “CIA digs in as Americans withdraw from Iraq, Afghanistan.”  The title largely sums up the story.  As uniformed military forces depart each of those theatres, the CIA will remain behind.  To do what?

The withdrawal of U.S. forces from Iraq in December has moved the CIA’s emphasis there toward more traditional espionage — monitoring developments in the increasingly antagonistic government, seeking to suppress al-Qaeda’s affiliate in the country and countering the influence of Iran.  In Afghanistan, the CIA is expected to have a more aggressively operational role. U.S. officials said the agency’s paramilitary capabilities are seen as tools for keeping the Taliban off balance, protecting the government in Kabul and preserving access to Afghan airstrips that enable armed CIA drones to hunt al-Qaeda remnants in Pakistan.

As President Obama seeks to end a decade of large-scale conflict, the emerging assignments for the CIA suggest it will play a significant part in the administration’s search for ways to exert U.S. power in more streamlined and surgical ways.  As a result, the CIA station in Kabul — which at one point had responsibility for as many as 1,000 agency employees in Afghanistan — is expected to expand its collaboration with Special Operations forces when the drawdown of conventional troops begins.

This seems to me the right strategy, particularly for addressing transnational terrorism, and in any case is almost certainly where the center of American public opinion stands with regards to both conflicts.  But we should probably add two things.  First, in Afghanistan – the strategically more important theatre – the CIA’s role is likely to be much more than simply gathering intelligence and engaging in paramilitary strikes, either using drones or its agents and Special Forces teams.  It is likely to be deeply involved in the coordination and funding of various local Afghanistan forces – in something that I suspect will look, in terms of the Agency’s historical role, much more like reversion to the mean.  Proxy forces integrated with gathering intelligence that enable drone and special ops strikes, but also utilized a forces able to help prevent consolidation of a regime that might provide safe haven for transnational terrorist groups, resurgent Al Qaeda or offshoots.

Second, it cannot be repeating sufficiently that the highly successful strategy of drone strikes and special ops owes its conversion from merely a tactic – and one that risked the “whack a mole” weakness of a tactic repeated serially – into a genuine strategy to the role of dense, often ground-level and human intelligence.  Leaving the CIA behind is a way of preserving that vital intelligence network, in addition to its paramilitary capabilities.  As someone once described it, the CIA in Afghanistan will be like the French Foreign Legion – last one to leave, if ever; the force that covers the rear of a strategic retreat under fire.  Or, going back to Miller’s article, as Navy Adm. William McRaven, remarked Tuesday, “I have no doubt that Special Operations will be the last to leave Afghanistan.” I have no doubt, either.

(By the way, I am looking forward to reading Michael A. Innes’ new book on proxy warfare when it appears in May, Making Sense of Proxy Wars: States, Surrogates and the Use of Force, with a forward by the eminent national security law scholar William C. Banks.)

A question I never thought to ask, but Prof. Terry Turnipseed asks and answers it, in a Slate article about a recent case in which a man did adopt his girlfriend — apparently to shelter money from creditors, given the terms of a trust for his children that he had earlier set up — and also in a full-on law review article from 2009.

The article’s abstract reports that, “For some time now adults — both heterosexual and homosexual — have been adopting their lovers and spouses all over the country for various reasons: to better guarantee the adoptee’s right to inherit directly from the adoptor; to keep collateral relatives from having standing to contest the adoptor’s estate plan; or to add a loved one to a class of trust beneficiaries (allowing the adoptee to inherit “through” the adoptor).” And the article reports that about half the states “are subject to statutory or common laws that include the adopted parent/adult child relationship within the definition of incest.”

Reading the blog and media reaction to Judge Reinhardt’s opinion for the Ninth Circuit in Perry v. Brown, it’s interesting how much it resembles the reaction to Judge Walker’s opinion at the District Court level. Most agree that both opinions were written solely for an audience of one, Justice Kennedy. In both cases, a lot of the reactions focus on whether the opinions successfully figured out a clever way to get Kennedy’s vote.

After Judge Walker’s opinion, for example, a lot of commenters thought Walker was particularly clever for announcing rather aggressive findings of fact that seemed to bleed over into the legal issues; the thought was that Walker could force the higher courts to see things his way because facts ordinarily are reviewed under the “clearly erroneous” standard instead of a de novo standard. After Reinhardt’s opinion, a lot of commenters have suggested that Reinhardt was particularly clever because he framed the issue narrowly under Romer, avoiding the broader questions of gay marriage.

I have no idea what the Supreme Court might do in the Perry case. But my own sense is that Judges Walker and Reinhardt are not quite as clever as some people seem to think. Or, at the very least, the reasoning of their opinions don’t really matter very much. First, I think it’s unlikely that the particular reasoning of either opinion will have a substantial influence on the Justices. The issues in Perry are extremely important, and they’re the kind of issues that force the Justices to fall back on first principles. The details of how the lower courts reached the results they reached matter a lot less in that kind of case than in an ordinary case. Consider how Judge Reinhardt dealt with Judge Walker’s extensive factual findings: He basically ignored them.

Second, to the extent the reasoning of the lower court decisions matter — which, as I said, I tend to doubt — the fact that both opinions are widely understood as advocacy briefs to Justice Kennedy from judges who are same-sex marriage supporters probably hurts the same-sex marriage cause more than helps it. The Justices aren’t dumb: They get it. And when they get the sense that the lower courts were crafting their opinions to try to maneuver a single Justice into a desired result in such a high profile case, that kind of heavy handedness runs a risk of backfiring. It creates a sort of patina of unreliability. I think a more clever strategy would have been to be more subtle: Create more of a sense of the opinions as routine legal opinions and less as advocacy briefs. And if you’re Reinhardt, make the opinion “per curiam” so it doesn’t come to the Court with your name on it.