I was under the impression that women tended to oppose same-sex marriage less than men did; consider, for instance, the July 13-27, 2003 poll noted here, in which oppose exceeded favor among women by 12%, and among men by 17%. This ABC News poll reflects the same gender gap.

It was striking, then, to see the opposite breakdown in the L.A. Times California poll. The question,

A proposed amendment to the state's Constitution that may appear on the November ballot would reverse the court's decision and state that marriage is only between a man and a woman. If the election were held today, would you vote for or against the amendment?

Men would vote for by a 43%-41% margin; women would vote for by a 58%-31% margin. As to "Do you agree or disagree with Gov. Arnold Schwarzenegger's decision to respect the court's ruling and not support a ballot initiative to define marriage as only between a man and a woman?," the disagree-agree margin for women is 7% higher than for men. As to "Do you believe that same-sex relationships between consenting adults are morally wrong, or do you believe that it is not a moral issue?," the wrong-not wrong margin for women is 13% higher than for men (though both sexes are more likely to say "not wrong" than wrong). As to "As long as two people are in love and are committed to each other, it doesn't matter if they are a same-sex couple or a heterosexual couple?," the disagree-agree margin for women is 5% higher than for men (though again both sexes are more likely to say "agree"); this last difference is likely statistically insignificant.

Oddly, as to "approve or disapprove of the California Supreme Court's decision last week to allow same-sex marriage in California," the margin is the same, 53%-42% among women and 51%-40% among men.

So some possibilities: (1) California women and men are quite different in this respect from women and men nationwide. (2) The poll was badly conducted. (3) People's views are so soft on the subject that the results aren't terribly reliable (though why would that affect the gender gap?). (4) Two or more of the above.

reads this L.A. Times headline (with "narrowly" instead of "barely" on the Web version). The opening paragraph reads, "By bare majorities, Californians reject the state Supreme Court's decision to allow same-sex marriages and back a proposed constitutional amendment aimed at the November ballot that would outlaw such unions, a Los Angeles Times/KTLA Poll has found."

It's only in paragraph 6 that reads learn that the amendment "was leading 54% to 35% among registered voters." It's true, as the paragraph says, that "ballot measures on controversial topics often lose support during the course of a campaign" and therefore "strategists typically want to start out well above the 50% support level." But despite this 54%-35% doesn't strike me as "barely"; likewise, the 52%-41% disapproval of the California Supreme Court decision doesn't seem likely "barely reject[ing]" to me.

So while 52% and 54% are indeed not much above 50%, they are much more than barely or narrowly above 41% and 35%. Formulating both the headline and the opening paragraph in terms of "barely" or "narrowly" and "bare majorities," without noting the large margins, strikes me as not the best way of presenting the data to the reader.

I should stress, by the way, that my point here is about the coverage of the poll, not about the likely November results. I suspect that the proposed amendment banning recognition of same-sex marriages will pass (assuming, as seems likely, that it will get on the ballot); but now is not November, and the voters haven't seen the campaigns on both sides. That the view "As long as two people are in love and are committed to each other, it doesn't matter if they are a same-sex couple or a heterosexual couple" polls at 59%-35% in favor suggests that public opinion may well be quite movable, if the issue is framed in that way.

A few weeks ago, I blogged about how a proposed law in Massachusetts would (likely inadvertently) criminalize cheating on one's lover -- not just adultery, but cheating on nonmarital relationships as well. A few days ago, I blogged about how the Missouri legislature had passed a law criminalizing emotionally distressing another person.

But I completely missed the connection between the two: Under the Missouri bill (which will soon be law, assuming the Governor signs it), it will be a crime to cheat on a lover with the purpose of emotionally distressing them.

The law makes it a crime to "Without good cause engage[] in any [act other than communication] with the purpose to frighten, intimidate, or cause emotional distress to another person, [and thereby] cause such person to be frightened, intimidated, or emotionally distressed, [when] such person's response to the act is one of a person of average sensibilities considering the age of such person." Say someone cheats on one's lover in order to distress them, for instance to retaliate for the lover's past affair or other mistreatment, and then allows the lover to discover this. That's engaging in an act with the purpose of causing emotional distress to another person. It causes emotional distress. The emotional distress is what a person of average sensibilities would experience under the circumstances. And it's hard to see any "good cause" for cheating, though I suppose the defendant could try to persuade the jury to the contrary.

And it's not just cheating, in the sense of illicit sex. The same could be if you have a not-yet-sexual romantic relationship with Alan, and then let yourself be caught kissing Bob in order to distress Alan. The touchstone, after all, is just the intentional infliction of emotional distress.

But wait, there's more: Let's say that you're not trying to hurt your regular lover, but the regular lover is under seventeen (for instance, if you're both sixteen; sex among sixteen-year-olds isn't statutory rape in Missouri), and you recklessly let slip something in conversation with the regular lover that reveals your cheating. That too might be a crime, because it's "[k]nowingly communicates with another person who is ... seventeen years of age or younger and in so doing and without good cause recklessly ... caus[ing] emotional distress to such other person." I suppose that if you just confess to the lover, that probably wouldn't be a crime, since the desire to come clean might be seen as "good cause." But if you just let something slip, it's hard to see how the reckless causing of emotional distress would be seen as having a "good cause" (especially since the slip may make the cheating even more distressing than either successful concealment or a deliberate confession).

Fortunately, all this is just a class A misdemeanor -- except if you're a repeat offender: If you've been found guilty of violating the law before, subsequent violations are class D felonies.

Oh, and if you're a parent who recklessly lets slip to your under-17 child that you're cheating on the child's other parent, that's a class D felony, too, since the "[h]arassment" will have been "[c]ommitted by a person twenty-one years of age or older against a person seventeen years of age or younger."

And yes, I know that prosecutorial discretion will keep these cases from being filed often. But how much are you willing to trust prosecutors? What if the wronged lover -- or the wronged lover's parent -- is a prosecutor, or a police officer or other government official or prominent citizen who has the prosecutor's ear? What if the cheating unintentionally leads to harm (even suicide, which cheating sometimes does lead to), and the public demands retribution? Might it not be better to just avoid the problem by not passing such broad and vague laws to begin with?

The BBC reports:

Legal action has been dropped against a 15-year-old who faced prosecution for branding Scientology a "cult".

The teenager held up a sign which read, "Scientology is not a religion, it is a dangerous cult", in May outside its headquarters in the City of London.

City of London Police said it had received complaints and warned the teenager to get rid of the sign as it breached the Public Order Act.

More on the incident in this post. Here's my question:

A Crown Prosecution Service (CPS) spokesman said: "In consultation with the City of London Police, we were asked whether the sign was abusive or insulting.

"Our advice is that it is not abusive or insulting and there is no offensiveness (as opposed to criticism), neither in the idea expressed nor in the mode of expression."

Can anyone who is familiar with English law tell me what "abusive," "insulting," and "offensive," which are apparently terms of art, mean? ("Abusive" and "insulting" appears to be the statutory test; "offensive" seems to be the Crown Prosecution Service's interpretation of the terms.)

I would think that calling a religion a "cult" would be offensive and insulting in the lay sense of the word -- it may be quite right, and it should certainly be constitutionally protected, but despite its being offensive and insulting, not somehow "there is no offensiveness" there. So what's the legal rule in England about what's allowed and what's not?

I should stress that many of the Texas FLDS members may still be in huge legal trouble, despite the conclusion that the raid was illegal (and likely unconstitutional) as to many of the children.

1. Rape / Statutory Rape Prosecutions: Most obviously, if indeed some girls (1) were physically forced into marriage or sex, or (2) had sex before age 17 with someone to whom they weren't legally married (whether there was no marriage ceremony or there was such a ceremony but it wasn't properly registered with the state for various reasons, such as the fact that it was an unlawful polygamous marriage), the people who had sex with them would be guilty of rape or statutory rape.

2. Prosecutions for Aiding and Abetting Rape / Statutory Rape: Criminal liability could also extend to those who sufficiently aided in the conduct, even if the aid consisted solely of encouraging the behavior (by which I mean encouraging the specific marriage, and not just teaching in the abstract that early marriage was good). This could include the girls' parents, religious leaders, or even friends and relatives who actively encouraged the conduct. The boundary between being a mere nonobjecting bystander (not criminal) and an active participant (criminal) is unfortunately sometimes quite vague. I suspect that celebrating the wedding with the couple or giving a wedding present wouldn't qualify as aiding and abetting, but even that's not completely obvious (see the English case Wilcox v. Jeffery, which some criminal law scholars see as being relevant to American law).

3. Bigamy (and Aiding and Abetting Bigamy): I suspect that the Texas bigamy statute -- which applies when a person "(A) purports to marry or does marry a person other than his spouse ... under circumstances that would, but for the actor's prior marriage, constitute a marriage; or (B) lives with a person other than his spouse in this state under the appearance of being married" -- wouldn't be interpreted as covering ceremonies that the parties understand not to be legal marriages. Clause A wouldn't apply, I think, if no marriage license were applied for, since without such a license the circumstances wouldn't constitute a legal marriage (Texas common-law marriage rules don't apply when one party is already married). Clause B is harder to figure out, but my guess is that this requires representation to others that one is legally married.

The Utah Supreme Court recently interpreted Utah bigamy law more broadly, to cover second marriages even when they aren't claimed to be legally valid marriages; but Utah law said simply that, "A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person," without the "under circumstances" language.

4. Regular Proceedings to Remove Children from Parental Custody: Naturally, if there is sufficient evidence of some past abuse of children, of imminent future abuse, or of parents' idly standing by when the children were abused by others, those children could be removed from parental custody, even in the absence of a criminal prosecution of the parents. It's just that this would have to be done through the normal procedures, at which specific evidence of abuse or likely future abuse of those children would have to be shown.

Some commenters on the earlier post raised this issue, so I thought I'd speak briefly about it.

1. Fourth Amendment and the substantive parental rights doctrine developed under the Due Process Clause: From what I've seen of the circuit court cases, both constitutional provisions have been read as requiring at least reasonable suspicion of imminent danger to the child (or of past abuse to the child, which will usually also lead to individualized reasonable suspicion of imminent danger) before a child can be seized by child protective services, even briefly. Some courts require not just reasonable suspicion, but the higher standard of probable cause. See Doe v. O'Brien, 329 F.3d 1286 (11th Cir. 2003) (probable cause); Hatch v. Department for Children, Youth and Their Families, 274 F.3d 12 (1st Cir. 2001) (reasonable suspicion); Doe v. Heck, 327 F.3d 492 (7th Cir. 2003) (probable cause, especially when read together with Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir. 2000)); Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999) (generally suggesting probable cause, though leaving open a "special needs" exception for unusual cases). The rule may be different when the child is detained briefly at a government-run school as opposed to in a private home or a private school, but that's not at issue here. As I read the Texas Court of Appeals decision, it looks like the state did not have probable cause or even reasonable suspicion of abuse as to many of the children involved in the raid, so the Fourth Amendment and the parents' parental rights have almost certainly been violated.

Of course, before any damages award is given, there'd have to be a finding that the law is well-established (or else the defendants would have qualified immunity. My quick search didn't find any Fifth Circuit or Texas state precedent that's entirely on point. But my sense is that the need for at least individualized reasonable suspicion is likely clearly enough established (even if only in other circuits), especially given the broader background Fourth Amendment principles requiring probable cause for seizures in private homes.

2. Procedural rights under the Due Process Clause: I know much less about this than I do about the Fourth Amendment and substantive parental rights, but I strongly suspect that the Due Process Clause has been read as requiring a hearing before one's children are removed, even temporarily, unless there are some exigent circumstances preventing that. Given the Texas Court of Appeals' description of the facts, it sounds like exigent circumstances were indeed absent here, at least as to many of the children.

3. State law rights: I can't speak to whether Texas law provides its own damages remedy for the violations of the law found by the Texas Court of Appeals.

Rick Hills roundly condemns slippery slope arguments:

The California Supreme Court's recent decision on gay marriage has predictably revived that old perennial favorite of arguments against substantive due process arguments for sexual privacy — the "slippery slope."

You know the drill: If courts strike down x law regulating sexual conduct, then it will be logically impossible to avoid striking down y, z, a, b, and c laws.... The obvious response to the "slippery slope" is the "conceptual ledge": There are lots of natural resting places for the mind, if one only bothers to look for some fine-grained moral/legal theory.... So why do patently unconvincing slippery slope arguments grow like black mold in a leaky attic every time a court makes a decision about sexuality? ...

It's true that arguments that it will be logically impossible to distinguish a future case from this case are usually very weak. Very few distinctions are logically impossible.

But slippery slope arguments endure partly because they are often cast, much more plausibly, as arguments that if X is done, it will become more likely that Y will be done — not that X and Y can't be treated differently, but that they won't be treated differently. These arguments aren't about logical consequences, but about psychological consequences (plus some other consequences). And as such they can't be rebutted simply by pointing out that a distinction could be drawn.

The other reason that slippery slope arguments endure is that slippery slopes do often seem visible. I say "seem" because it's often impossible to tell for sure whether X increased the likelihood of Y, or whether Y would have happened in any event. But sometimes there's good reason to think that slippage has happened, often despite the express insistence of backers of X that of course X won't help lead to Y.

I discuss this in detail in my Same-Sex Marriage and Slippery Slopes. I start by pointing to two examples:

1. The slippage from contraceptive rights for married couples (Griswold) to contraceptive rights for unmarried couples (Eisenstadt) to abortion rights (Roe) to sexual autonomy rights (Lawrence), which happened despite the express assurance of some backers of the first step that it wouldn't lead to later steps.

2. The reliance of the Massachusetts and California same-sex marriage decision and the Vermont same-sex civil union decision on the enactment of other gay-rights laws, which happened despite express assurances of some backers of the earlier steps that they wouldn't lead to the later step.

I also explain how some specific arguments for same-sex marriage, if accepted, can indeed weaken public, legislative, and judicial resistance to calls for polygamous marriage — for instance, "all people have a right to marry whomever they choose," "it’s none of my business whom someone else marries," "people who want to enter into same-sex marriages should have equal rights with those who want to enter into opposite-sex marriages," or "love should prevail over arbitrary legal restrictions" (see the article for citations).

This having been said, I conclude that it seems unlikely that accepting same-sex marriages will materially increase the chance that society will accept polygamous marriages. But that kind of decision has to be tied to a pretty careful analysis of the likely psychological and political processes that are likely to take place. It can't be based on a simple categorical refusal to consider slippery slope arguments whenever a logical distinction is available, or a simple categorical acceptance of slippery slope arguments whenever a similarity can be logically pointed to.

From the opinion, which is a sharp and detailed rebuke of the Texas Department of Family and Protective Services (emphasis and some paragraph breaks added):

Removing children from their homes and parents on an emergency basis before fully litigating the issue of whether the parents should continue to have custody of the children is an extreme measure. It is, unfortunately, sometimes necessary for the protection of the children involved. However, it is a step that the legislature has provided may be taken only when the circumstances indicate a danger to the physical health and welfare of the children and the need for protection of the children is so urgent that immediate removal of the children from the home is necessary. [Tex. Fam. Code. Ann. § 262.201.]

(Show much of the factual discussion.)

In this case, the Department relied on the following evidence with respect to the children token into custody from the Yearning For Zion ranch to satisfy the requirements of section 262.201:

• Interviews with investigators revealed a pattern of girls reporting that "there was no age too young for girls to be married";
• Twenty females living at the ranch had become pregnant between the ages of thirteen and seventeen;
• Five of the twenty females identified as having become pregnant between the ages of thirteen and seventeen are alleged to be minors, the other fifteen are now adults; [footnote: One woman is alleged to have become pregnant at the age of thirteen. She is now twenty-two years old.]
• Of the five minors who became pregnant, four are seventeen and one is sixteen, and all five are alleged to have become pregnant at the age of fifteen or sixteen;
• The Department’s lead investigator was of the opinion that due to the "pervasive belief system" of the FLDS, the male children are groomed to be perpetrators of sexual abuse and the girls are raised to be victims of sexual abuse;
• All 468 children were removed from the ranch under the theory that the ranch community was "essentially one household comprised of extended family subgroups" with a single, common belief system and there was reason to believe that a child had been sexually abused in the ranch "household"; and
• Department witnesses expressed the opinion that there is a "pervasive belief system" among the residents or the ranch that it is acceptable for girls to marry, engage in sex, and bear children as soon as they reach puberty, and that this "pervasive belief system" poses a danger to the children.

In addition, the record demonstrates the following facts, which are undisputed by the Department:

• The only danger to the male children or the female children who had not reached puberty identified by the Department was the Department's assertion that the "pervasive belief system" of the FLDS community groomed the males to be perpetrators of sexual abuse later in life and taught the girls to submit to sexual abuse after reaching puberty;
• There was no evidence that the male children, or the female children who had not reached puberty, were victims of sexual or other physical abuse or in danger of being victims of sexual or other physical abuse;
• While there was evidence that twenty females had become pregnant between the ages of thirteen and seventeen, there was no evidence regarding the marital status of these girls when they became pregnant or the circumstances under which they became pregnant other than the general allegation that the girls were living in an FLDS community with a belief system that condoned underage marriage and sex; [footnote: Under Texas law, it is not sexual assault to have consensual sexual intercourse with a minor spouse t0 whom one is legally married. Texas law allows minors to marry—as young as age sixteen with parental consent and younger than sixteen if pursuant to court order. A person may not be legally married to more than one person.]
• There was no evidence that any of the female children other than the five identified as having become pregnant between the ages of fifteen and seventeen were victims or potential victims of sexual or other physical abuse;
• With the exception of the five female children identified as having become pregnant between the ages of fifteen and seventeen, there was no evidence of any physical abuse or harm to any other child;
• The Relators have identified their children among the 468 taken into custody by the Department, and none of the Relators' children are among the live the Department has identified as being pregnant minors; and
• The Department conceded at the hearing that teenage pregnancy, by itself, is not a reason to remove children from their home and parents, but took the position that immediate removal was necessary in this case because "there is a mindset that even the young girls report that they will marry at whatever age, and that it's the highest blessing they can have to have children.”

The Department argues that the fact that there are five minor females living in the ranch community who became pregnant at ages fifteen and sixteen together with the FLDS belief system condoning underage marriage and pregnancy indicates that there is a danger to all of the children that warrants their immediate removal from their homes and parents, and that the need for protection of the children is urgent. [Footnote: The Department's position was stated succinctly by its lead investigator at the hearing. In response to an inquiry as to why the infants needed to be removed from their mothers, the investigator responded, "[W]hat I have found is that they're living under an umbrella of belief that having children at a young age is a blessing therefore any child in that environment would not be safe."] The Department also argues that the "household" to which the children would be returned includes persons who have sexually abused another child, because the entire Yearning For Zion ranch community is a "household." ...

(Hide much of the above.)

The Department did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty. Nor did the Department offer any evidence that any of Relators' pubescent female children were in physical danger other than that those children live at the ranch among a group of people who have a "pervasive system of belief” that condones polygamous marriage and underage females having children. [Footnote: The Department's witnesses conceded that there are differences of opinion among the FLDS community as to what is an appropriate age to marry, how many spouses to have, and when to start having children—much as there are differences of opinion regarding the details of religious doctrine among other religious groups.]

The existence of the FLDS belief system as described by the Department's witnesses, by itself, does not put children of FLDS parents in physical danger. It is the imposition of certain alleged tenets of that system on specific individuals that may put them in physical danger. The Department failed to offer any evidence that any of the pubescent female children of the Relators were in such physical danger. The record is silent as to whether the Relators or anyone in their households are likely to subject their pubescent female children to underage marriage or sex. The record is also silent as to how many of Relators' children are pubescent females and whether there is any risk to them other than that they live in a community where there is a "pervasive belief system" that condones marriage and child" rearing as soon as females reach puberty.

The Department also failed to establish that the need for protection of the Relators' children was urgent and required immediate removal of the children. As previously noted, none of the identified minors who are or have been pregnant are children of Relators. There is no evidence that any of the five pregnant minors live in the same household as the Relators' children. [Footnote: The notion that the entire ranch community constitutes a "household" as contemplated by section 262.201 and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. The Department's witnesses acknowledged that the ranch community was divided into separate family groups and separate households. While there was evidence that the living arrangements on the ranch are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community was a "household" under section 262.201.]

There is no evidence that Relators have allowed or are going to allow any of their minor female children to be subjected to any sexual or physical abuse. There is simply no evidence specific to Relators' children at all except that they exist, they were taken into custody at the Yearning For Zion ranch, and they are living with people who share a "pervasive belief system" that condones underage marriage and underage pregnancy.

Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse as the Department contends, there is no evidence that this danger is "immediate" or "urgent" as contemplated by section 262.201 with respect to every child in the community. [Footnote, slightly moved: The simple fact, conceded by the Department, that not all FLDS families are polygamous or allow their female children to marry as minors demonstrates the danger of removing children from their homes based on the broad-brush ascription of every aspect of a belief system to every person living among followers of the belief system or professing to follow the belief system.] ... Evidence that children raised in this particular environment may someday have their physical health and safety threatened is no evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal prior to full litigation of the issue as required by section 262.201.

Finally, there was no evidence that the Department made reasonable efforts to eliminate or prevent the removal of any of Relators' children [as required under §262.201]. The evidence is that the Department went to the Yearning For Zion ranch to investigate a distress call from a sixteen year-old girl. [Footnote: The authenticity of this call is in doubt. Department investigators did not locate the caller on the ranch.] After interviewing a number of children, they concluded that there were five minors who were or had been pregnant and that the belief system of the community allowed minor females to marry and bear children.

They then removed all of the children in the community (including infants) from their homes and ultimately separated the children from their parents. This record does not reflect any reasonable effort on the part of the Department to ascertain if some measure short of removal and/or separation from parents would have eliminated the risk the Department perceived with respect to any of the children of Relators....

A New Hampshire Supreme Court advisory opinion (handed down Monday) offers a fascinating case study in interpretation of legal texts. The New Hampshire Constitution provides,

All elections are to be free, and every inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election.

The New Hampshire House of Representatives adopted a provision letting 17-year-olds vote in a primary if they'll be 18 by the time of the general election; it then asked the Supreme Court's opinion about whether this is constitutional. (Such advisory opinions are issued by many state supreme courts, though not by the federal courts.)

Unconstitutional, says the state supreme court: The state constitution "establishes the minimum voting age as eighteen years of age," and "the legislature has no authority to set a different minimum voting age." But, I ask, where is the minimum voting age here? The state constitution says that "every inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election," but it doesn't say that only 18+-year-olds have such a right. It thus seems to me set forth a constitutional floor for who may qualify, but not a constitutional ceiling.

Maybe I'm mistaken on this; I can imagine that in some situations an "every X shall have" sentence implicitly means that "only X's shall have." But I don't see why this would be so here, whether based on the text, the context, or the constitutional history that the opinion recites. At least I would have expected the court to explain why "every" means "only," and I didn't see it doing so. Am I missing something here?

UPDATE: Commenter NH Atty points to an item that may support the court's decision -- I saw it when I first read the opinion, but perhaps I didn't give it enough credit: "The ballot question regarding age at voting submitted to the citizenry in 1976 reflected the convention’s intent that the amendments to Part I, Article 11 and Part II, Article 28 lower the minimum voting age to eighteen. Question eight inquired, in pertinent part: 'Are you in favor of amending the Constitution to make the following changes relating to elections: (a) to reduce the minimum age of voters to eighteen.'" This might be the "constitutional history" evidence I was looking for in the preceding paragraph.

The trouble is that the constitutional text doesn't say "minimum age"; rather, it says that every 18-year-old shall be able to vote. So the question, which I wish the court had discussed, is to what extent the ballot materials offered the voters should trump the literal meaning of the text. But I do think that I didn't give the court enough credit for supporting its argument, given that the ballot materials do indeed support the "Every X" = "Only X" interpretation.

1. Circuit Split on Whether Burdens on Sexual Autonomy Rights Require Heightened Scrutiny: As I noted below, there's now a split on the subject between the Ninth and the Eleventh Circuits, and the question extends far beyond "Don't Ask, Don't Tell." (The Eleventh Circuit decision, for instance, upheld Florida's ban on adoption by homosexuals; that case might well come out differently under heightened scrutiny.) Such circuit splits are usually seen by the Court as counseling in favor of agreeing to hear the case.

On the other hand, it's only a 1:1 split now, as best I can tell, and this is the very sort of area where the Court might want to see more discussion by lower courts (as well as more similarity among the particular policies involved in the cases).

2. Interference with Federal Statute and Military Policy: A court's striking down a federal statute — or an important executive policy — is also often seen by the Court as counseling in favor of agreeing to hear the case.

Here, though, the Ninth Circuit didn't strike down "Don't Ask, Don't Tell," but just remanded to the trial court to consider arguments about whether the policy is indeed necessary to protect unit cohesion. This means there's no final judgment below, an important factor that has traditionally counseled against Supreme Court review, especially in state cases but also in federal cases like this one. It also means that the Court won't have much of a factual record on the necessary-to-protect-unit-cohesion issue; where there's some possibility that the factual record may be relevant, the absence of such a record at this stage might lead the Court to want to wait until the trial court finds the facts and the Ninth Circuit then gets another change to review it. And the lack of a final decision means that the government can't easily argue that the Ninth Circuit decision is frustrating important military judgments — the government hasn't been enjoined from implementing the "Don't Ask, Don't Tell" policy.

3. The Solicitor General's Decisions: Of course, the Court is sure not to grant certiorari until the government asks for it. The government will likely choose to ask the Ninth Circuit to rehear the case en banc first; an 11-judge en banc panel may well reverse the panel decision. The Ninth Circuit is on balance considerably less liberal than this particular panel; it has 11 Reagan/Bush Sr./Bush Jr. appointees among its active judges (including Chief Judge Kozinski, who is guaranteed to be on any en banc panels), and 16 Carter/Clinton appointees. A majority-Republican en banc panel is still unlikely given this distribution, but the en banc panel is likely to be more conservative than the 3-judge panel in this case (two Clinton judges and a senior judge appointed by Carter).

If the Ninth Circuit refuses to take the case en banc, or takes it but affirms the panel decision, then I suspect that the current Administration — or a McCain Administration — would petition for certiorari right away, rather than going on to a trial (though that's not certain). On the other hand, en banc review might put the decision off until after the election, and a possible Obama (or long-shot Clinton) victory. At that point, it seems likely that a Democratic Administration would at least wait until after the trial and subsequent appeals.

Orin summarized the opinion below; let me add a few thoughts:

1. Sexual Autonomy Rights: The panel's decision strongly suggests that Lawrence v. Texas recognizes a fundamental constitutional right to sexual autonomy, so that laws that burden this right must be subject to some heightened scrutiny. I've long argued that this is how Lawrence must be read, but this creates a circuit split with an Eleventh Circuit decision holding that Lawrence only mandated rational basis scrutiny.

I also think this would bear on sexual autonomy matters that don't involve same-sex conduct -- for instance, restrictions on sex between dental hygienists and their ex-patients or even bans on incestuous sex between adults. Some such restrictions might still be upheld under heightened scrutiny, but it seems to me that under the Ninth Circuit's (correct) interpretation of Lawrence, they must face such scrutiny.

2. Special Standards for the Military? Yet even if the panel is right on its general interpretation of Lawrence, I was struck by its failure to consider that the sexual autonomy right -- like the right to free speech, or the Sherbert/Yoder-era right to free exercise of religion -- might demand a far lower standard of scrutiny in the military than outside it. "Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society," the Court expressly held, rejecting the strict scrutiny standard for religious freedom claims.

Perhaps the panel contemplates that the special role of the military would be considered entirely within the heightened scrutiny framework that it applies (or within the strict scrutiny framework that Judge Canby would have applied). But this is not how the Court has treated free speech or free exercise rights; in those contexts, it has applied a far more deferential standard of review from the outset. I would have expected some explanation of why sexual autonomy rights should be treated better than those other rights.

3. Heightened Scrutiny: The Court has sometimes opined that burdens on fundamental rights (especially under substantive due process or the right to privacy) must be subject to strict scrutiny. Other commentators and judges have picked up on this.

But there's ample precedent for the Ninth Circuit's mixed intermediate-strict scrutiny test: As the Ninth Circuit pointed out, the substantive due process right to be free from unwanted medication is also judged under this test (which requires that a restriction be necessary to further an important government interest, rather than the strict scrutiny "necessary to further a compelling government interest" or the pure intermediate scrutiny "substantially related to an important government interest"). The court could also have pointed to the right to marry, which uses a similar formulation ("closely tailored to effectuate" "sufficiently important state interests"). And outside the substantive due process context, such a test is also used as to content-based restrictions on broadcast television and radio.

One could argue, for various reasons, that there should be no heightened scrutiny of sexual autonomy rights at all, that there should be no such scrutiny in the military context, that there should be strict scrutiny, or that having different standards of heightened scrutiny -- strict, intermediate, and mixed intermediate-strict -- requires subtle distinctions that courts can't practically (or even theoretically) apply. But the argument can't simply turn on the claim that, as a matter of precedent, strict scrutiny and the rational basis test are the only games in town.

4. Chances of Supreme Court Review: More on this in an upcoming post.

I almost never post such job announcements, but I think so highly of the Institute for Justice that I'm making an exception here. They are a first-rate libertarian public interest law firm -- none is better (and at most a few are equal or even close), even if one includes the more conservative outfits. My sense is that for quite a few of our readers, this would be a dream job, so I thought I'd post the notice here:

Tired of working on cases you don’t believe in? Longing to do something meaningful with your law degree? The Institute for Justice, the nation’s leading libertarian public interest law firm, is seeking two staff attorneys to join its merry band of litigators in its Arlington, Va., headquarters.

IJ litigates cutting-edge constitutional cases in the areas of private property rights, economic liberty, school choice, and free speech in both state and federal courts nationwide. We’ve litigated cases before the U.S. Supreme Court including the Kelo eminent domain case, the Swedenburg wine direct shipping case, and the Zelman school choice case. We seek attorneys with 0-5 years of litigation experience, excellent communication skills, an entrepreneurial spirit, solid academic records, a passion for freedom, and a good sense of humor. Clerkship preferred.

We offer a competitive salary, full health, dental, and life insurance benefits, and a pension plan as well as a collegial, positive work environment and the opportunity to gain real litigation experience with meaningful responsibility in cases that will have immediate real-world impact. All of this is offered in a place that was recognized as one of the 55 great places to work in DC by Washingtonian magazine. If you love liberty and the law and fighting for our nation’s founding principles, this is the place for you.

Send cover letter, resume and writing sample, in confidence, to:
Human Resource Department
Institute for Justice
901 North Glebe Road, Suite 900
Arlington, VA 22203
Email: [email protected]

Any suggestions on a notebook computer that my wife and I can give as a high school graduation present? I'm thinking something light and reliable, with a nice screen. It needs to be good enough for word processing and casual Internet use; no need to have high power for serious video gaming. I'd love to hear any recommendations you folks might have. Thanks!

One argument against letting terminally ill patients use experimental drugs is that this will interfere with randomized clinical drug studies. I respond in some measure to this argument in my Medical Self-Defense piece (PDF page 18):

Terminally ill patients’ right to use experimental drugs might also interfere with randomized clinical drug studies. It’s possible that so many patients will insist on getting a not-fully-tested but promising drug that researchers will be unable to test the drug’s effectiveness. If people can just buy the drug, they may do so rather than enroll in a study in which they might get a placebo instead of the drug. [Footnote: For examples of this argument, see] Brief for Appellee in the Abigail Alliance case; Ezekiel J. Emanuel, Drug Addiction, NEW REPUBLIC, July 3, 2006, at 9, 10–12.] ...

[But this] argument justifies limiting medical self-defense only when such limits are necessary for conducting clinical studies and no other alternatives will do. For instance, if the studies require 200 patients, and there are 10,000 who seek the experimental therapy, there is little reason to constrain the self-defense rights of all 10,000. Likewise, if the drug is now being studied only on people who suffer from a particular kind or stage of a disease, the drug should not be legally barred to those who fall outside those studies. If we must strip people of self-defense rights to save many others’ lives in the future, we should impose this tragic constraint on as few people as possible and to as small an extent as possible.

[Footnote:] [Note also that] society would [rightly] balk at a law that generally forced people to go into clinical trials, and a law that forces people to go into clinical trials if they want access to the only possibly lifesaving drugs seems to be no less coercive.

But my friend Sally Satel, a resident scholar at the American Enterprise Institute, is looking for further responses, especially scientific ones focused on how clinical trials can effectively coexist with availability of the experimental drugs outside those trials. If any of you know of any studies or arguments that focus on this, please post the references in the comments. Many thanks!

The Guardian (UK) reports:

A teenager is facing prosecution for using the word "cult" to describe the Church of Scientology.

The unnamed 15-year-old was served the summons by City of London police when he took part in a peaceful demonstration opposite the London headquarters of the controversial religion....

A policewoman ... read him section five of the Public Order Act and "strongly advised" him to remove the sign. The section prohibits signs which have representations or words which are threatening, abusive or insulting.

The teenager refused to back down, quoting a 1984 high court ruling from Mr Justice Latey, in which he described the Church of Scientology as a "cult" which was "corrupt, sinister and dangerous".

After the exchange, a policewoman handed him a court summons and removed his sign....

A spokeswoman for the force said today: "City of London police had received complaints about demonstrators using the words 'cult' and 'Scientology kills' during protests against the Church of Scientology.

"Following advice from the Crown Prosecution Service some demonstrators were warned verbally and in writing that their signs breached section five of the Public Order Act.

"One demonstrator continued to display a placard despite police warnings and was reported for an offence under section five. A file on the case will go to the CPS."

Here's what appears to be the teenager's report of the incident, which the article appears to quote:

I brought a sign to the May 10th protest that said: "Scientology is not a religion, it is a dangerous cult".

Within 5 minutes of arriving at QVS, I was told by a member of the police that I was not allowed to use 'that word', and that the final decision would be made by the Inspector.

At around 11:15, while on the high ground of QVS, I was approached by these happy fellows: YouTube - Anonymous Protests Scientology - London - May 10th2008 (:40)

I was read the Section 5 Public Order Act of 1986, and was told I was strongly advised to remove the sign. You can see my response in the video, as I read out Justice Latey's statement about the Cult of Scientology. I was given until 11:30 to remove the sign.

At around 12:05 the police caught up with me, I was given a Court Summons and my details were taken down....

Thanks to InstaPundit for the pointer.

The Missouri Legislature just passed a bill that, among other things, makes it a crime whenever someone

(4) Knowingly communicates with another person who is, or who purports to be, seventeen years of age or younger and in so doing and without good cause recklessly frightens, intimidates, or causes emotional distress to such other person; or ...

(6) Without good cause engages in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the age of such person.

So ordinary teasing would be a crime, so long as it causes "emotional distress" and is "without good cause" (as much teasing would be). And a wide range of other speech and conduct is a potential crime, depending on whether a judge or jury concludes you had "good cause" for your actions. And if the action is done by someone 21 or over against someone who's 17 or younger, it's a felony.

So you're annoyed by a 16-year-old who's too loud, and you insult them in front of friends in a way that's "emotionally distressing" — under the new law, you'd be a felon. You're annoyed by what you see as poor service from a 16-year-old employee in a store, and you berate them in front of other customers in a way that's "emotionally distressing," and you'd be a felon if the judge or jury concludes that the public berating is "[w]ithout good cause." And whenever two 13-year-olds distress each other without good cause, they'd both be committing misdemeanors. I hope the governor vetoes the bill, but I have no reason to expect that.

Dan Solove has a lot more. Looks like an overreaction to the Megan Meier teasing-leading-to-suicide case, which is indeed a tragedy but which certainly doesn't justify a response as broad and vague as this one.

Let's say that the California Supreme Court doesn't stay its decision -- and I doubt that it would find a legal justification to do so -- but let's say that the California voters reverse that decision in November, by enacting a state constitutional amendment that reads, "Only marriage between a man and a woman is valid or recognized in California." What might happen to same-sex marriages that took place in the months before the amendment becomes effective?

1. One option is that they may remain valid, whether because the initiative is construed as not applying to existing marriages, or because the courts conclude such an interpretation is constitutionally mandated by the Contracts Clause ("No state shall ... pass any ... Law impairing the Obligation of Contracts ....").

I highly doubt that this will happen. According to the text of the amendment, as soon as the amendment takes effect, only male-female marriages are valid or recognized. Future marriages, preexisting marriages, in-state marriages, out-of-state marriages -- all are valid and recognized only so long as they are between a man and a woman. And the Contracts Clause likely won't affect it, since it's been held not to apply to marriage contracts (see Maynard v. Hill, 125 U.S. 190 (1888); Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934)), which is why statutes authorizing divorces have been allowed even as to marriages that had been entered into when divorces were not available.

Perhaps the result might be different if there is language in the initiative summary, or the supporters' arguments, that states the initiative will only apply to marriages entered into after the initiative. But I doubt the initiative's backers will make such statements in the ballot pamphlet, or that the state authorities will summarize the initiative this way.

2. Another is that pre-initiative same-sex marriages will become domestic partnerships, which under California statutes give most of the rights of marriage. The proposed initiative doesn't purport to bar such domestic partnerships, and it would make sense to treat such invalidated marriages as domestic partnerships, since this is the result that seems most likely to effectuate as much of the married couples' intentions as possible. In a sense, this would be similar to what courts do when they invalidate legislation on constitutional grounds, including in the same-sex marriage case itself: Since the legislation can't be literally applied, they tend to try to find the solution that the legislature would likely have preferred had it anticipated the court decision.

In the same-sex marriage case, for instance, the court had to implement its equality decision by choosing between treating same-sex marriages as "marriages," and concluding that under state law no marriages could be labeled "marriages." (Recall that even the right-to-marry part of the court's decision left open the possibility that a legislature could simply not use the label "marriage" for any relationship.) The court chose to treat same-sex marriages as marriages, reasoning that "it is readily apparent that extending the designation of marriage to same-sex couples clearly is more consistent with the probable legislative intent than withholding that designation from both opposite-sex couples and same-sex couples in favor of some other, uniform designation." The actual legislative intent of the legislators plus the voters couldn't be perfectly implemented because of the court's constitutional ruling, but the court tried to implement it as closely as possible. One could argue that courts should do the same as to private same-sex marriage decisions invalidated by a state constitutional amendment.

On the other hand, I suppose there might be some same-sex married couples who might take a "marriage or nothing" view, so as to them changing the marriage to a domestic partnership might not reach the result they prefer; maybe there would even be so many that the judgment about what is "more consistent with the probable [individual] intent" becomes unclear. More importantly, there are specific statutory provisions dictating what it takes to create a domestic partnership. A court might well conclude that, unless these formalities are complied with, the domestic partnership can't be said to exist, even if a different set of formalities required for a marriage -- a now-invalidated marriage -- have been complied with.

Given this, I'm not sure how likely a court would be to take this approach; I'd love to hear those who know more about California judicial practices in similar scenarios might be (though note that no scenario has been quite like this one). Note also that the backers of the initiative might well make statements in the ballot pamphlet endorsing this solution -- since such statements might give the initiative more support without deeply offending its advocates -- and those statements might influence the judges deciding how to implement the initiative once it's enacted.

3. A third option is that they will be eliminated altogether, and that married couples will remain domestic partners only if they had entered both into a marriage and into a domestic partnership (on a belt-and-suspenders theory). I wonder, though, whether existing California marriage and domestic partnership law would allow this. My sense is that it should be interpreted to allow this (since this is hardly the same as marrying one person but then becoming domestic partner with another, which is not allowed), but I'm not positive.

4. Finally, it's possible that the legislature will step in, either right after the enactment of the initiative or even before it, specifically providing that any invalidated same-sex marriage will become a domestic partnership. I think that would be good, because it would minimize disruption and best effectuate people's preferences, and I see no reason why it would be unconstitutional. But I'm not sure that it's going to happen.

In any case, just some tentative thoughts -- I'd love to hear yours.

I'm delighted to report that Prof. Peter Spiro (Temple) will be guest-blogging here this week. Prof. Spiro has written extensively on constitutional law and international law, for instance in Treaties, International Law and Constitutional Rights, 55 Stanford Law Review 1999 (2003), and Globalization and the (Foreign Affairs) Constitution, 63 Ohio State Law Journal 649 (2002). His new book, Beyond Citizenship: American Identity After Globalization, has just been published by the Oxford University Press; Prof. Spiro will be blogging mostly about the matters he discusses in this book.

I expect there'll be much in his posts with which I'll disagree (see here, for instance, for a hint of some of the differences between Prof. Spiro's worldview and mine). But I'm sure the posts will be very interesting, both to me and to our readers.

Today's U.S. v. Williams opinion might seem like a child pornography case; but the key (though not unexpected) holding is that there is a First Amendment exception for solicitation of crime or offer to commit a crime, see Part II-B.

This is not the same as the "incitement" exception, which bars only speech that's intended and likely to produce imminent lawless conduct. Rather, it's an exception that covers a proposal to engage in specified illegal activity, even if the activity is to happen at some unspecified time in the future, and even if the activity isn't likely to happen. "Please help me out of my marital problems, my friend, by killing my wife" wouldn't be incitement, for instance, but it would be solicitation. Likewise, "please help me out of my marital problems, my friend, by shooting my wife right now" probably wouldn't be incitement if it was highly unlikely to succeed, but it would also be solicitation or attempt (some solicitations are punishable as attempts). Solicitation to commit a crime is generally outlawed, but of course criminal laws have to pass muster under the First Amendment. Williams holds that this is indeed so.

From there, the result is pretty straightforward. The statute at issue in Williams bars

knowingly advertis[ing], promot[ing], present[ing], distribut[ing], or solicit[ing] ... any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material ... contains
(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or
(ii) a visual depiction of an actual minor engaging in sexually explicit conduct ....

So this will make clear that solicitation, offer, and attempt to commit a wide range of crimes -- including the distribution or receipt of child pornography -- is indeed criminally punishable. And, contrary to Justice Souter's dissent (joined by Justice Ginsburg), I don't see how this will materially change the protection offered to distribution of nonobscene pictures that don't actually depict real children, but instead show computer- or hand-drawn children, or adults that look like children: A distributor or recipient may avoid liability under the statute by simply offering or asking for "pictures of adults who look underage" or "computer-generated pictures that look like children."

Such offers or solicitations won't "reflect[] the belief, or [be] intended to cause another to believe" that the material is a visual depiction of an actual child engaging in sex. (Of course, if the material does prove to be actual child porn involving actual children, and the recipient knows or learns that the material so qualifies, he might be liable for possession of actual child porn, but that would be true regardless of the solicitation/offer ban.) And to the extent that such offers or solicitations may be said to reflect a belief or are intended to cause a belief that the material is obscene -- a complicated matter given the vagueness of the term "obscene" -- the problems that the law poses are not materially different from the problems posed by obscenity law in the first place.

So the opinion strikes me as generally quite sound, not much of a change in child pornography law, and an important but fully expected recognition of the solicitation/offer exception. The recognition of this exception requires the Court to define and police the "important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality," the latter of which is protected under Brandenburg v. Ohio and many other cases; but the Court's recognition of this distinction, which I just quoted, and the necessity for such a distinction, leads me not to worry too much about the future on this score. So on balance it's not surprising to me that the result was a lopsided 7-2.

I'm writing a post about this morning's U.S. v. Williams decision, and I realized it would be good to lay out this brief guide — it might be helpful for future controversies, too.

I. Obscenity: The Supreme Court has held that the First Amendment does not protect the distribution of "obscenity," a narrow category that basically covers hard-core pornography. To be obscenity, a work must satisfy all three of the following elements, largely drawn from Miller v. California (1973):

1. "the [a] average person, [b] applying contemporary community standards, would find that the work, [c] taken as a whole, [d] appeals to the prurient interest,"

2. "the work depicts or describes, [a] in a patently offensive way [under [b] contemporary community standards, Smith v. U.S. (1977)], [c] sexual conduct specifically defined by the applicable state law," and

3. "the work, [a] taken as a whole, [b] lacks serious [c] literary, artistic, political, or scientific value[, [d] applying national standards and not just community standards."

Note also that, (4) mere private possession of obscenity can't be constitutionally outlawed, though distribution and even transportation for one's own private use may be. See Stanley v. Georgia (1969); U.S. v. Orito (1973).

II. Child Pornography: The Supreme Court has also held that the First Amendment does not protect the distribution or possession of "child pornography," which basically covers

1. "visual[] depict[ions]" of

2. actual children below the age of majority (and not just fictional pictures or pictures of adults who look like children)

3. "performing sexual acts or lewdly exhibiting their genitals."

See New York v. Ferber (1982); Ashcroft v. Free Speech Coalition (2002) a category that basically covers depictions of actual children in sexual contexts.

III. Distribution of Sexually Themed Material to Minors: The Court has held that the law may bar distribution to specific minors of sexually themed material, even if the material doesn't fall within the above exceptions. The test for such unprotected material is basically the Miller test (see item I above), with "of minors" or "for minors" added to each prong (e.g., "the work taken as a whole, lacks serious literary, artistic, political, or scientific value for minors"). Ginsberg v. New York (1968), a pre-Miller case, upheld a law that implemented the then-current obscenity test with "to minors" added at the end of each prong; most lower courts and commentators have assumed that Ginsberg plus Miller justify laws that implement the Miller-based test given above.

IV. Public Display of Sexually Themed Material, Where Minors and Offended Viewers Might See It Alongside Willing Viewers? It's not clear to what extent the government may bar this, at least assuming the material fits within the obscene-as-to-minors framework described in item III — the Court has struck down limits on Internet distribution of such material, but lower courts had upheld limits on non-Internet distribution and display, for instance through coin-operated newsracks. The Supreme Court has also strongly suggested that the display of such material -- including mere nudity and not just obscene-as-to-minors material -- on broadcast television is constitutionally unprotected.

V. Pornography More Generally: Sexually themed material that fits in none of the above categories is constitutionally protected, though the "erogenous zoning" cases allow greater regulations of — though generally not total bans on — bricks-and-mortar businesses, such as theaters and bookstores, that distribute pornographic material to walk-in customers.

I haven't blogged much about immigration issues; it's a difficult empirical question on which I have little expertise, and my sense is that it would take more time than I now have to acquire enough expertise to be able to say something useful. So let me ask this question, stressing that it's just a question and not an answer:

Say that we consider largely removing limits on immigration, as I've heard some people suggest, and as was indeed the law throughout much of the nation's history. (Let's set aside narrow limits, such as on people with criminal records, terrorist connections, or easily communicable diseases.) Say also that we will offer these now largely legal immigrants those social welfare benefits that are in fact politically likely — not the bare minimum that some libertarians might like, nor the vast amount that some welfare-state proponents might suggest, but those benefits that are likely: Public education for their children, emergency health care, whatever nonemergency health care is likely to be broadly offered under either current health subsidy plans or under whatever plans are likely in the future, and the like.

Say also that we maintain the traditional liberties that we have long offered legal immigrants, such as the right to settle wherever they want (which likely means where they can find relatives, people from their home country, and jobs), rather than requiring them to stick to (say) South Dakota and avoid already crowded places like New York City or Southern California. And say that we likewise maintain the various traditional restraints that are in fact unlikely to be politically changed, such as imperfectly enforced minimum wage laws, imperfectly enforced tax laws, imperfectly enforced housing laws, and the like.

Of the world population of 6 billion, how many people are likely to want to come to the U.S., and stay for the indefinite future, under this model? Ten million? One hundred million? More? Less? Is it even possible to estimate this? Relatedly, if one goal of allowing broader immigration would be to avoid the problems caused by illegal immigration, would capping the limit at some number (2 million per year? 5 million per year?) dramatically decrease illegal immigration by offering the prospect of legal immigration to those who stand in line? Or would it increase illegal immigration, as people see more of their acquaintances and family members living in the U.S., and thus conclude that moving here illegally would be easier and less painful than it once was?