My colleague Ann Carlson (Environment & Law) offers some thoughts.

I often hear arguments that the Supreme Court has held that school boards are limited by the Free Speech Clause in their ability to remove books. A commenter on the first thread in this chain offers an example:

The distinction is that the school library already had the copy and then removed it. While many will debate whether that distinction makes a difference, it does under Supreme Court jurisprudence.

But this turns out not to be an accurate statement of what the Supreme Court has actually held. This issue was indeed before the court in Board of Ed. v. Pico, and four Justices did take the view that library removal decisions were generally unconstitutional if they were motivated by disapproval of the ideas that the book expresses (though would be permissible if they were motivated by other, supposedly more neutral, factors, such as the book's vulgarity or age-inappropriateness or inaccuracy). And the four Justices were joined by one Justice in affirming the lower court's decision, which refused to grant summary judgment in favor of the school board.

But there were precisely the same number of votes — four — for the view that even viewpoint-based removal decisions were generally constitutional (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans) as there were for the view that such decisions were generally unconstitutional. The swing vote, Justice White, deliberately did not opine on the question; Pico thus left the issue 4-4.

Why did Justice White agree as to the bottom line action — affirming the court of appeals decision — with those Justices who thought viewpoint-based removals were unconstitutional? Simply because he did not want the issue resolved at that point, and procedurally the way to avoid that was to affirm. Here's what happened, in Justice White's own words (emphasis added):

The District Court found that the books were removed from the school library because the school board believed them "to be, in essence, vulgar." Both Court of Appeals judges in the majority concluded, however, that there was a material issue of fact that precluded summary judgment sought by petitioners. The unresolved factual issue, as I understand it, is the reason or reasons underlying the school board's removal of the books. I am not inclined to disagree with the Court of Appeals on such a fact-bound issue and hence concur in the judgment of affirmance. Presumably this will result in a trial and the making of a full record and findings on the critical issues.

The plurality seems compelled to go further and issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point. When findings of fact and conclusions of law are made by the District Court, that may end the case. If, for example, the District Court concludes after a trial that the books were removed for their vulgarity, there may be no appeal. In any event, if there is an appeal, if there is dissatisfaction with the subsequent Court of Appeals' judgment, and if certiorari is sought and granted, there will be time enough to address the First Amendment issues that may then be presented.

I thus prefer the course taken by the Court in Kennedy v. Silas Mason Co., 334 U.S. 249 (1948), a suit involving overtime compensation under the Fair Labor Standards Act. Summary judgment had been granted by the District Court and affirmed by the Court of Appeals. This Court reversed, holding that summary judgment was improvidently granted, and remanded for trial so that a proper record could be made. The Court expressly abjured issuing its advice on the legal issues involved. Writing for the Court, Justice Jackson stated:

"We consider it the part of good judicial administration to withhold decision of the ultimate questions involved in this case until this or another record shall present a more solid basis of findings based on litigation or on a comprehensive statement of agreed facts. While we might be able, on the present record, to reach a conclusion that would decide the case, it might well be found later to be lacking in the thoroughness that should precede judgment of this importance and which it is the purpose of the judicial process to provide.

"Without intimating any conclusion on the merits, we vacate the judgments below and remand the case to the District Court for reconsideration and amplification of the record in the light of this opinion and of present contentions."

We took a similar course in a unanimous per curiam opinion in Dombrowski v. Eastland, 387 U.S. 82 (1967). There we overturned a summary judgment since it was necessary to resolve a factual dispute about collaboration between one of the respondents and a state legislative committee. We remanded, saying: "In the absence of the factual refinement which can occur only as a result of trial, we need not and, indeed, could not express judgment as to the legal consequences of such collaboration, if it occurred."

The Silas Mason case turned on issues of statutory construction. It is even more important that we take a similar course in cases like Dombrowski, which involved Speech or Debate Clause immunity, and in this one, which poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here. I therefore concur in the judgment of affirmance.

In some ways, NEA v. Finley is somewhat on point, because it too involves government action that aims to impose some quality judgments, and that is inherently content-based. And Finley does suggest that "invidious viewpoint discrimination" in such judgments may be unconstitutional, though presumably non-invidious viewpoint discrimination would be permissible.

But Finley's point is just a suggestion — the Court specifically stresses that "we have no occasion here to address an as-applied challenge in a situation where the denial of a grant may be shown to be the product of invidious viewpoint discrimination," and while there's also wording there that suggests such invidious viewpoint discrimination would be impermissible, there's no square holding. There is also no definition of when viewpoint discrimination becomes "invidious," and it's not clear to what extent the Finley case, involving arts grants, would carry over to the public library context (and especially public library books aimed at children).

(Note that Pico was a school library case, and one could certainly argue that decisions as to other public libraries, and especially the adult-aimed collections of those libraries, are constitutionally different from decisions as to school libraries or as to the children's collections of other public libraries. But while this isn't an implausible argument, it is again not one that is firmly supported by existing precedent.)

So all this should make clear, I think, that there's no answer from the Supreme Court on the subject; nor to my knowledge is there a broad and firm consensus of lower courts. My sense is that, when it comes to shelving and removal decisions, then-Justice Rehnquist's argument in Pico is the more persuasive one, at least as to the decisions in the inherently content-based field and often viewpoint-based field of what is to be on public school library shelves (though not necessarily as to Internet access decisions, which could be content-neutral and especially viewpoint-neutral). (I also think it's quite proper for people to fault certain kinds of book removal decisions on the grounds that those decisions show narrow-mindedness, or deny library patrons — including children — valuable information, and are thus improper even though they aren't unconstitutional or even more broadly rights-violating. Of course, as with many ethical judgments, such a judgment will turn considerably on the details of each case.)

A U.S. Court of Appeals for the Eleventh Circuit panel just handed down a monster 177-page decision on the subject (with a two-judge majority and a one-judge dissent). I think the majority got it mostly right, in upholding the school board's decision about the book; and I wanted to blog a few posts about various aspects of the problem.

1. The concrete details (albeit necessarily oversimplified): The Miami-Dade school district had a bunch of copies of A Visit to Cuba and its Spanish version Vamos a Cuba. The book (the text of which is included at pp. 175-77 of the decision) is a short and bland item, with no mention at all that Cuba is an oppressive dictatorship. Many people objected to the book on the grounds that this omission (plus some other items) made the book inaccurate; the school board eventually removed the book. The question is whether this removal violates the First Amendment.

The question that the panel discussed was "whether the School Board was motivated to remove Vamos a Cuba because of inaccuracies [in the book]" as opposed to "simply because [the Board members] dislike the ideas contained in [the] book[]." (As I'll mention later, that might not be the right constitutional standard, but the majority used the standard because it was in its view the most plaintiff-friendly plausible standard, and yet the plaintiffs would lose even under it.) Some of the discussion was about some relatively minor inaccuracies -- for instance, whether a particular illustration properly depicts "paintings made by people who lived in Cuba about 1,000 years ago" (it doesn't) -- but it's pretty clear that the removal decision wasn't based on those inaccuracies.

Much of the discussion was about the supposed inaccuracy of the statement that "People in Cuba eat, work, and go to school like you do." The majority repeatedly and sharply condemned this statement as inaccurate, on the grounds that "It is simply not true that people in Cuba “eat, work, and go to school” the same way that American children do." "[I]n Cuba food is rationed by the government." "In Cuba there is “little private work,” and “it [is] a crime to exercise private initiative or to have private practice of a profession.”" "The book’s assertion that people in Cuba go to school “like you do” is false, too. In addition to agricultural field work being a mandatory part of school for Cuban children, the Human Rights Report found that elementary and secondary students receive “obligatory ideological indoctrination.”"

But while I sympathize with the majority's position, I think it places too much weight on one interpretation of "like you do." As the dissent points out, "It appears fairly evident that this short sentence is meant to show simply that other children in other cultures also do those things" -- basically, "You eat, work, and go to school, and so do people in Cuba." The very next sentence does say, "Life in Cuba is also unique," and the rest of the book mentions differences in food, schooling, and work. I think it's unlikely that a 4-to-8-year-old reading the book will assume "like you do" means "in exactly the same way as you do."

2. The real problem with the book, it seems to me, is not with any inaccurate statements the book makes. It's with what the book excludes, and thus with the overall picture that it paints (something that the majority and the critics of the book also stress). The book omits what to many people is the most important fact about Cuba -- that it's an oppressive Communist dictatorship. To be sure, this is a fact that isn't trivial to convey to 4-to-8-year-olds, but something of it could be conveyed (other books in the series mention the dire poverty or the legacy of war in other countries).

And it's the absence of this fact that makes the book misleading. As the opinion points out, the book is not that different from an "A Visit to 1930s and 1940s Germany" that omitted any mention of anti-Semitism or tyranny, or "A Visit to the early 1800s American South" that omitted any mention of slavery. Whether or not the book said "People in the Third Reich [or 1830 Alabama] ate and worked like you do," the main problem would be in what the book excluded not with what it included.

3. It seems to me that elementary schools are eminently entitled to exclude books that omit such important information from their libraries. An elementary school library is a place where the school itself provides books that its management (ultimately, the public) thinks are worthwhile for students, and that its management is prepared to endorse. What's more, the young readers are unlikely to read the books with great skepticism, nor are they likely to use each book as a starting point for a broader research program on the subject. (Occasionally, a child will get excited about a topic and want to read much more about it, but not often and certainly not always.)

The school should be entitled to make sure that a book it includes in its library adequately conveys the information in a way that doesn't leave an unduly misleading impression. (I say "unduly" because this will always be a matter of degree; any short book, and for that matter any long one, will always oversimplify things in certain ways that may end up misleading people.) The school need not do so in all instances. But it should be free to do so when it chooses.

The dissent's response -- "The answer to books that do not provide all the information a reader wants is to find another book. If a reader is curious about the Castro regime, he can find another book that enlightens him further." -- doesn't work. The school is aware that many readers won't want to find another book, and of course many readers who read the bland summary of Cuba won't be curious about the Castro regime because they won't even know about the Castro regime, and wouldn't be curious about it even if the book mentioned the word "Castro." The school should be able to make sure that even readers who read this one book won't come away with a picture of Cuba that omits a fact that the school reasonably believes to extremely important.

4. The dissent also responds by arguing that the School Board was really motivated by "a political motive" -- by the school board's disagreement with the "ideas or points-of-view" that the book conveyed -- rather than by "legitimate pedagogical concerns" such as the possibility that the book conveyed "inaccuracies by omission." And of course the critics of the book did loathe Castro's regime, and thought the book conveyed a bad point of view.

But they thought it conveyed a bad point of view precisely because they thought the book was inaccurate by omission. The book effectively conveyed the message that Cuba is much like America, except somewhat poorer and with a somewhat different lifestyle. Whether that's accurate or not depends on your viewpoint about the significance of its being an oppressive dictatorship. The worse the Castro regime is in your view, the more inaccurate the book is by omission.

Most decisions about what facts to include and which to exclude are subjected. Some people might think that including some fact is important; others might disagree. Much of the judgment will turn on their viewpoints about the significance of various evils (or goods), about what the most important take-away message from some event or circumstance might be. One can't entirely be "viewpoint-neutral" in evaluating claims of inaccuracy by omission, especially as to controversial topics, because what is a significant omission and what's not is inherently tied to one's viewpoint about the events.

I think that on balance this is an excellent illustration for why there shouldn't be any constitutional problem even with School Board members' removing a book "simply because they dislike the ideas contained in [the] book[]." But even if one takes the view that removal is permissible only when the book is inaccurate (or vulgar or some such), the School Board's decision that this book is inaccurate strikes me as eminently defensible -- in my view, actually correct, but in any case well within the School Board's rightful discretion to control what messages it conveys through its elementary school libraries.

I'll try to post later today about the constitutional precedent on the subject (the short summary is that the matter is highly unsettled), on whether it should make a constitutional difference that the School Board reversed the decisions of other review committees that would have retained the book (I will argue that it shouldn't), and more broadly on whether there should be any Free Speech Clause constraints on school library decisions in this area (I will argue that there shouldn't be, either as to acquisition of books or as to removal of books).

The column is here, at least for this week. Rauch is a very thoughtful and fair-minded columnist, and his criticisms are always worth taking seriously. Here's the start and the finish of the column:

Suppose, at least for the time it takes to read the next several paragraphs, that the ousting of Illinois Gov. Rod Blagojevich was a political railroading. Suppose the intention, whether out of malice or opportunism or both, was to overturn the 2006 election. What, actually, would that have looked like? And how different would it have looked from what happened last week?

I think that Blagojevich is probably a crook, and so does everyone else, so the question may seem academic. But it's not. Overturning an election is fundamentally antidemocratic and, in a democracy, potentially dangerous. When it needs to be done, the proceedings need to be objectively distinguishable from a railroading. In other words, the rules must be scrupulously fair. Otherwise, the process for removing corrupt politicians becomes, itself, indistinguishable from political corruption....

"Maybe one day it might happen to you," Blagojevich warned the state senators. He called his removal "a dangerous precedent that could have an impact on governors in Illinois and governors in other states."

He had a point. In the scramble to remove him, too many corners were cut. Not legal corners -- the law was faithfully executed -- but prudential ones. The press and the public were too quick to take a prosecutor's accusations at face value. The Illinois Legislature was too willing to act as an arm of the prosecution instead of an independent fact finder. And the political class was too cavalier about nullifying an election.

Whatever his wrongs, Blagojevich was right about this: The rules that removed him are not sufficiently distinguishable from a railroading, and they are wide open to abuse. We may find out, before long, that the door he was just shoved through swings both ways.

Paul Caron (TaxProf) writes:

The Tax Court yesterday held that the IRS did not abuse its discretion in refusing to accept [blues singer Koko Taylor's] proposed offers in compromise, upheld the IRS's tax lien and levy against her, and upheld the the IRS's refusal to abate tax penalties. Taylor v. Commissioner, T.C. Memo. 2009-27 (Feb. 5, 2009). In its conclusion, the Tax Court appeared to take a swipe at Tom Daschle, Tim Keithner, Nancy Killefer, and Hilda Solis:

Both petitioner and respondent repeatedly commented on petitioner's stature as a beloved and well-known professional singer as support for their respective positions in these consolidated cases. We disagree with both parties insofar as they contend that a taxpayer's celebrity status is somehow relevant to what this Court must do in deciding whether the Commissioner's collection action may proceed. Every taxpayer, no matter how famous or notorious, has a legal obligation to honestly report and pay his or her income tax liability each year and is entitled to fair enforcement of Federal tax laws....

on normblog.

So held a New York appeals court in Lewis v. N.Y. State Dep't of Civil Service a couple of weeks ago, for much the same reasons as were discussed here. Thanks to reader NabokovProdigy for the pointer to the decision, and to an article about the Alliance Defense Fund litigation strategy for challenging such recognition.

Is it just me, or is the headline "War court judge: Prison conditions my domain" easy to parse incorrectly? (The headline has been changed to "War court judge: Prison camp conditions my domain"; but a Google search suggests that the original headline is indeed the one I originally quoted.)

I say that apropos Orin's "Oops" post.

In re Estate of Ranftle, decided last week by the New York County Surrogate's Court, seems to me to reach exactly the right result. H. Kenneth Ranftle married J. Craig Leiby in Canada in June 2008. In November, he died, and was survived by Leiby and by three siblings.

The immediate question before the court was who was "entitled to receive process under SCPA 1403(1)(a), but since that refers to the "distributees" — those who would inherit under intestate succession — the procedural question included the substantive one: Should Leiby be treated as a surviving spouse? And this substantive question also applies to the more important situations where someone dies without a will, and the question is where the property goes (and not just who is notified about the probate when someone does have a will, as seemed to be the issue here). Yes, the court said:

Marriages valid where solemnized have long been recognized in New York; exceptions exist only for marriages affirmatively prohibited by New York law, or proscribed by "natural law" (Matter of May, 305 NY 486 [1953]). [Footnote: The "natural law" exception is generally limited to cases of incest and polygamy or where the marriage violates the state's public policy (Martinez v. County of Monroe, 50 AD3d at 191). It is noted that Governor David Paterson has instructed New York state agencies to recognize same-sex marriages that were valid where performed, through an Executive Directive dated May 14, 2008.] As decedent's marriage was valid under the laws of Canada, where performed, and falls into neither exception to the general rule, the marriage is entitled to recognition in New York (Martinez v. County of Monroe, 50 AD3d 189 [4th Dept 2008]) (recognizing Canadian same-sex marriage for purposes of entitlement to spousal health care benefits).

This strikes me as precisely correct. New York statutes do not bar recognition of out-of-state marriages. Neither do New York common-law principles; the "natural law" reference is indeed shorthand for "cases involving polygamy or incest in a degree regarded generally as within the prohibition of natural law." (By the way, Matter of May, which the court cites, upheld an uncle-niece marriage, which was valid under a Rhode Island statute that allowed such marriages for Jews; I expect that many people in 1953 thought such marriages to be inappropriate, and New York law in fact forbade them, but New York courts recognized the out-of-state marriage nonetheless.) The judge didn't have to do his own philosophical "natural law" reasoning to decide whether same-sex marriages are "natural" or "unnatural"; he was just reading the existing precedents no more broadly than they required.

And I think such a preference for recognizing foreign marriages that were legal in the place where they were entered into — a preference that is itself a long-standing legal principle — makes perfect sense, especially when it comes to intestate succession. Someone dies. He should have had a will, but he didn't, and it's too late for should-haves now. The legal system's goal should be to give the property to those to whom he would have most likely wanted to leave it, so long as this can be done without excessive fact-finding of the "Mother loved me best" variety. It's a fair bet that people would like to leave their property to their spouses; and that's true even if the law of the state wouldn't itself allow such a marriage.

You can like the marriage or dislike it, support uncles marrying nieces or oppose it, but when it comes to distributing the dead person's property, the focus should be (again, where it is consistent with the demands of clarity and minimal factfinding cost) on what the dead person would have wanted, not what the judge or the voters would have wanted. I'm not saying there's a constitutional obligation to do it — just that this is the soundest legal principle.

By the way, if you ask "But what about polygamy?," there's already an answer: In re Bir's Estate, in which the California Court of Appeal held — in 1948 — that California would recognize a foreign polygamous marriage (from India) for the purposes of intestate succession. Though California public policy might lead to a different result "if decedent had attempted to cohabit with his two wives in California" — remember that this was a time when cohabitation with someone who wasn't your legal wife could be criminal — "[w]here only the question of descent of property is involved, 'public policy' is not affected." Both wives were thus allowed to share equally in the decedent's property.

What's more, earlier cases took a similar view, especially as to the question whether the children of the second and later wives were to be treated as legitimate, back when more legal rules turned on legitimacy. These matter came up in some cases involving American Indian tribes, as well as marriages recognized in foreign countries. And the skies didn't fall, nor would they have, I think, if such cases had been more common.

UPDATE: I originally read the opinion as suggesting that Ranftle died intestate, because of the reference to the law of intestate succession at the end. But as a commenter pointed out, the opinion clearly says that Ranftle had a will. In any case, though, the significant legal consequence of this decision is that precisely the same reasoning would apply to intestate succession (where it would be considerably more important than for probate of a will). In any event, I've corrected the discussion of the facts -- my analysis of the law is the same as before.

I blogged about this issue three weeks ago. Under 18 U.S.C. § 3142(c)(1)(B), someone who is charged with possessing child pornography -- among other crimes -- and is freed on bail must be ordered not to possess any firearm. In late December, U.S. v. Arzberger (S.D.N.Y.) concluded that this violated the Due Process Clause, largely because the right to bear arms is protected under the Second Amendment.

A few weeks later I found another opinion, U.S. v. Kennedy (W.D. Wash.) (Donohue, M.J.), which holds the same thing (it was decided earlier than Arzberger, but placed online later). Here's the magistrate judge's reasoning, which the district judge (Richard A. Jones) approved without further analysis (paragraph break added):

Pretrial Services recommends that Defendant be prohibited from possessing a firearm, which is a mandatory condition under the Walsh Act. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment created an individual right to possess firearms. In footnote 27, Justice Scalia noted that a law regulating a specific, enumerated right such as the right to keep and bear arms was subject to more than a rational basis level of scrutiny.

If the government's position in this case is sustained, this constitutional right would be taken away not because of a conviction, but merely because a person was charged. This right would be lost notwithstanding a lack of showing that Defendant is a potentially violent individual, or that he even owns firearms. Certainly no particularized need has been established in this case that the Defendant should prohibited from possessing a firearm. As such, they will restrict his freedom to such a substantial degree that they do nonetheless implicate a protected liberty interest, which may not be revoked without according Defendant procedural due process; specifically, an individualized determination as to whether the onerous mandatory conditions are needed to assure the Defendant's future appearance or to avoid a danger to the community. No such determination has occurred here.

Note that the magistrate's decision had a substantive effect, beyond just requiring the government to provide more evidence; the government apparently couldn't provide the evidence, so the defendant was released without the firearms restriction.

By the way, here is the government's argument for imposing the firearms restriction, and for reversing the magistrate's ruling:

[T]here is no indication that the restriction on firearms will impose any burden on Defendant whatsoever, as Defendant has not contended that he has any need to possess or have access to firearms. Moreover, this condition will help ensure the safety of the community by restricting Defendant’s ability to harm himself or others by using a firearm....

[C]riminal defendants, such as Defendant, who have been charged with a violent crime simply do not have a “fundamental right” to possess or have access to firearms. Accordingly, the condition precluding possession of firearms for the relatively brief time pending trial does not affect a fundamental liberty interest.

There's no explanation for why simply being charged takes away a defendant's Second Amendment rights. (Note also that Kennedy's crime -- possession of child pornography -- is not a "violent crime" under any normal understanding of the term, though it is a serious crime.) I also put up Kennedy's response to the motion, though it focuses on other matters.

This happened last week, but I was too swamped to blog about it. Here's the Complaint (in Rodearmel v. Clinton), and the press release:

Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has filed a lawsuit against newly sworn-in Secretary of State Hillary Rodham Clinton on behalf of U.S. Foreign Service Officer and State Department employee David C. Rodearmel, (Rodearmel v. Clinton, et al., (D. District of Columbia)). The lawsuit maintains that Mrs. Clinton is constitutionally ineligible to serve as Secretary of State and that Mr. Rodearmel cannot be forced to serve under the former U.S. Senator, as it would violate the oath he took as a Foreign Service Officer in 1991 to "support and defend" and "bear true faith and allegiance" to the Constitution of the United States.

Under the "Emoluments" or "Ineligibility" clause of the U.S. Constitution, no member of Congress can be appointed to a civilian position within the U.S. government if the "emoluments" of the position, such as the salary or benefits paid to whoever occupies the office, increased during the term for which the Senator or Representative was elected.

Specifically, article I, section 6 of the U.S. Constitution provides, "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time." The text of the provision is an absolute prohibition and does not allow for any exceptions.

According to Judicial Watch's lawsuit, the "emoluments" of the office of U.S. Secretary of State increased three times during Mrs. Clinton's most recent U.S. Senate term. That term, which began on January 4, 2007, does not expire until January 2013, regardless of Mrs. Clinton's recent resignation. The lawsuit notes that Congress attempted to evade this clear constitutional prohibition with a so-called "Saxbe fix" last month, reducing the Secretary of State's salary to the level in effect on January 1, 2007. This maneuver, first used in the Taft Administration, has been more frequently used in recent years by both parties, allowing notably Republican Senator William Saxbe to become U.S. Attorney General in 1973 and Democratic Senator Lloyd Bentsen to become Treasury Secretary in 1993. A similar "fix" has been enacted for Senator Ken Salazar to join the Obama Cabinet as Secretary of the Interior.

Judicial Watch's lawsuit, however, points out that the legislation "does not and cannot change the historical fact that the 'compensation and other emoluments' of the office of the U.S. Secretary of State increased during Defendant Clinton's tenure in the U.S. Senate ...." The U.S. District Court for the District of Columbia is required to give expedited consideration to the lawsuit.

"This historic legal challenge should remind politicians of both parties that the U.S. Constitution is not to be trifled with," said Judicial Watch President Tom Fitton. "Mrs. Clinton is constitutionally ineligible to serve as the U.S. Secretary of State until at least 2013, when her second term in the U.S. Senate expires. We hope the courts will put a stop to these end runs around the Constitution and affirm the rule of law."

For our earlier posts on the subject, see here; as I noted there, I'm tentatively inclined to think that the Clinton appointment doesn't violate the Emoluments Clause, but I thought I'd link to the arguments of those who take the contrary view (as I also had earlier, quoting Prof. Michael Stokes Paulsen).

Hentoff was let go by the Village Voice during its recent staff cuts. As the Cato press release report notes,

In 1980, [Hentoff] was awarded an American Bar Association Silver Gavel Award for his coverage of the law and criminal justice in his columns. In 1983, the American Library Association awarded him the Imroth Award for Intellectual Freedom. In 1995, he received the National Press Foundation Award for Distinguished Contributions to Journalism, and in 1999, he was a Pulitzer finalist for commentary. Hentoff has authored many books, including Living the Bill of Rights: How to be an Authentic American and Free Speech For Me But Not For Thee....

He serves on the Board of Advisors of the Foundation for Individual Rights in Education (F.I.R.E.) and is on the steering committee of the Reporters’ Committee for the Freedom of the Press.

when applied to exclude same-sex married couples from federal employee benefits: So concluded Ninth Circuit Judge Stephen Reinhardt earlier this week, in an internal order resolving a complaint brought by a Ninth Circuit employee. Chief Judge Alex Kozinski suggested in a similar order last month that DOMA might be unconstitutional in such situations, but interpreted the federal benefits statute in a way that avoided the need to decide whether DOMA is indeed unconstitutional. [UPDATE: These orders are not binding precedent, but they are a hint of how these judges -- and presumably some of their colleagues -- may rule in future cases arising outside this context of internal Ninth Circuit employment complaints.] (Thanks to Robert Iafolla and John Roemer of the L.A. Daily Journal for breaking the story.)

Judge Reinhardt concluded that applying the Defense of Marriage Act's mandate that "marriage" under federal law shall include only opposite-sex couples violates the Due Process Clause because it is not "rationally related to a legitimate governmental purpose." The opinion concluded that:

1. The denial of benefits "cannot be justified simply by a distaste for or disapproval of same-sex marriage or a desire to deprive same-sex spouses of benefits available to other spouses in order to discourage them from exercising a legal right affored them by a state," since that would constitute "a bare desire to harm a politically unpopular group."

2. The federal government interest in "defending and nurturing the institution of traditional, heterosexual marriage," mentioned in the House report on DOMA, "is largely irrelevant to the rational basis analysis here because the same-sex couple here is already married," and the government's denial of benefits to same-sex spouses wouldn't "encourage[ gay people] to enter into marriages with members of the opposite sex."

3. As to the interest in "defending traditional notions of morality" also mentioned in that House report, "if the denial is designed to 'defend' traditional notions of morality by discouraging same-sex marriage, it does so only by punishing same-sex couples who exercise their rights under state law, and thus exhibits the 'bare desire to harm' same-sex couples that is prohibited under City of Cleburne and Romer." Moreover, "denying married same-sex spouses health coverage is far too attenuated a means of achieving the objective of 'defending traditional notions of morality," plus "Romer and Lawrence v. Texas strongly suggest that the government cannot justify discrimination against gay people or same-sex couples based on 'traditional notions of morality' alone."

4. Finally, the third interest mentioned in the House report, "the government's interest in preserving scarce government interests" "does not provide a rational basis for that policy if the policy is, as a cost-saving measure, drastically underinclusive, let alone founded upon a prohibited or arbitrary ground."

Some of these rationales might be restrictable to employee benefits alone. But the logic of this argument, I think, would ultimately invalidate the entire Defense of Marriage Act, and for that matter would read the U.S. Constitution to secure a right to same-sex marriage (at least so long as the government recognizes opposite-sex marriages).

I like the idea of giving same-sex spouses the same health benefits as opposite-sex spouses; and I support same-sex marriage as a policy matter. But it seems to me that these claims that the law lacks a "rational basis" are not sound. The principle behind the Defense of Marriage Act — and nearly all states' recognition of opposite-sex marriage but not same-sex marriages — is that (1) heterosexual relationships are better for society than homosexual ones, and that the (2) government's preferring same-sex marriages in a wide range of contexts will tend to reinforce that norm among the public. I'm skeptical of both these claims, but I don't think they can be said to be irrational, or animated by a "bare desire to harm": Many critics of same-sex marriages genuinely believe (even if in my view ultimately wrongly) that specially fostering heterosexual relationships is indeed materially better for society than treating heterosexual and homosexual relationships equally — their desire is to try to help society (even if this in the process means excluding some groups for benefits), not "bare[ly]" "to harm" people.

And this is especially so since sexual behavior is indeed alterable for quite a few people. Whatever one might think about the alterability of sexual orientation, there is strong evidence that many (perhaps about half) non-purely-heterosexual men and most non-purely-heterosexual women are actually bisexual, and may thus be not unlikely to respond to social norms in their choices of partners. As I've suggested before, I don't think we should try to pressure this choice using government benefits; but that doesn't make the contrary view irrational, it seems to me. Moreover, while I am told that there is a considerable amount of intriguing evidence about sexual orientation being innate, I'm pretty skeptical that the matter is conclusively resolved at this stage of the investigation. I thus don't think it's irrational for Congress to believe that, at least as to some people, broad social norms may affect their felt orientations and not just their choices within a felt bisexual orientation.

Of course, any particular application of the law (e.g., to employee benefits) might not have that much of a norm-reinforcing effect. But that sort of particularization isn't the proper approach under the rational basis test, I think, nor should it be: The point of this law, as of many other laws, is to have a significant effect through its aggregate incentive and norm-setting function.

Finally, I should acknowledge that the famously mysterious decision in Romer v. Evans, and the less famously mysterious but still, in my view, not well-reasoned decision in City of Cleburne v. Cleburne Living Center might be read as supporting the conclusion that DOMA is unconstitutional here. This is so precisely because they are so vague, and because the "rational basis with bite" review that they are said to create is so unclear on what that "bite" is supposed to mean, and what actual legal rule judges are supposed to use to implement this "bite." But I'm pretty sure that those decisions don't mandate the results (again, precisely because they are so vague).

In any case, let me stress again: I think wise employers, federal, state, and private, should care about keeping their employees happy and productive — including by helping the employees' provide for their families — and not about the employees' choice of spouses or life partners. I also support the recognition of same-sex marriages. But while I think the views contrary to mine are mistaken, I don't think they're irrational, either in the lay sense or in the constitutional sense.

Say you're a mayor, and you're trying to decide whether to get smart guns for your city's police force. (Assume again that such guns do become at least as reliable as purely mechanical guns.)

There's an upside to such a decision: About 10 percent of all police officer shootings happen with the officer’s own weapon (according to 1990s data). Sometimes the shooter might have his own weapon and might use the officer’s weapon just to make tracing harder; but sometimes the shooter starts out unarmed and seizes the gun from the officer in a struggle. If the officer has a personalized gun, the officer’s life could be saved.

But there's also a downside, and part of the downside is EMP risk: The last thing you want is for your police force to be entirely unarmed in case of an EMP attack and its aftermath. Do you take steps to try to protect against such risk, for instance by insisting that you only get smart guns if they operate in "work mechanically if the electronics fails" mode, or if they can be "dumbed down" using some simple mechanical toolkit that all officers in the field will have on them? Do you make sure that each police car has a mechanically locked purely mechanical gun just in case? (You can't just store such guns at the station, I think, given that officers may be stranded far from the station.) Do you do this even if the steps involve some modest expense, or some modest delay in getting the personalized gun?

Or do you not focus on the risk, because it's too speculative? If the answer is that such speculative risks should be ignored, would you likewise ignore the risk if you're deciding whether to spend city funds to harden some local infrastructure against EMP?

I much appreciate the comments in the Electromagnetic Pulse and Smart Guns thread, and I wanted to follow up on one question.

Some commenters -- and others I've talked about this subject -- suggested that it's not sound to make policy decisions based on this sort of speculation about the possibility of an EMP attack. (I set aside for purposes of this post whether one ought to speculate about the availability of smart guns; let's assume that smart guns become available and reliable, as the New Jersey conditional smart gun mandate law presupposes they will be. I also set aside whether smart gun mandates are prohibited by the Constitution even if it turns out they don't materially interfere with people's ability to keep and bear arms for self-defense; that will be the focus of more posts in a few weeks.)

Let me probe this speculation issue a little. The existence of EMP is not speculation: EMP, unlike sex-starved velociraptors, is quite real, as are nuclear bombs, as is EMP that goes much further than the bomb's kill radius. The speculation comes in guessing about the per-year probability that America would be subject to an EMP-generating (but not otherwise immediately lethal) nuclear attack.

But is such speculation really improper -- or even reasonably unavoidable -- when it comes to policy analysis? Imagine that there's a proposal to spend tax money to shield American infrastructure installations against EMP. I assume we wouldn't condemn it as inherently unsound because it's built on speculation about the likelihood of an EMP attack. Of course we could always debate whether it's worth spending the particular amount of money that's proposed, given other possible uses for the money (including lowering taxes as a possible use). But to resolve that debate, either in favor of spending on EMP shielding or against it, we'd have to speculate about the risk of an EMP attack.

Is there some inherent reason that such speculation is (1) proper for evaluating the merits of spending programs, but (2) not proper when evaluating the constitutionality of regulatory programs (in the course of determining whether the programs excessively burden the exercise of constitutional rights)?

I blogged about this nearly six years ago, but I thought I'd mention it again, especially since I have to decide whether to mention this in my forthcoming article on how courts should implement the right to bear arms. I'd love to hear what people thought about this subject more generally, but in particular it would be useful for me to know: Do you think that a law review article section on the right to bear arms and "smart guns" mandates should mention these risks? Or are they the sorts of risks that are too low or too uncertain to consider in such analyses?

Assume that smart gun technology does really develop to the point where, setting aside the risk of electromagnetic pulse, a smart gun is roughly as reliable and as costly as a comparable purely mechanical gun. Also, let's focus solely on the right to keep and bear arms in self-defense, and set aside the right to keep and bear arms as a possible deterrence to government tyranny; to make my article manageable, I am focusing solely on the self-defense side (and even so I'm at over 80 pages).

In any case, here's the issue:

1. A high-altitude nuclear detonation can generate an electromagnetic pulse that will basically destroy unshielded electronic circuitry in line of sight — potentially over hundreds of thousands of square miles. There has also been talk of e-bombs, which are nonnuclear devices that could create an EMP over a much smaller area.

This, it turns out, is one of the little-known twists in the debate about "smart guns." Smart guns, in theory, would only be usable by their authorized owner. This would be done using some technology, likely chip-driven technology — possibly some radio transponder that reacts to a special ring that the owner wears, or possibly even fingerprint recognition (though that would have been mighty quick and reliable).

I don't support laws that mandate smart guns, chiefly because there's no reason to think that such guns will be reliable enough any time soon. But I certainly see the advantage of such guns, as a means of preventing the 100 or so fatal gun accidents and the greater number of nonfatal gun accidents involving kids that happen each year in the U.S.

If I had a child, and smart guns were reliable enough, I might well be willing to spend some extra money to get a smart gun instead of my current dumb guns. And if (as I asked you to assume) such smart guns became generally about as reliable and about as costly as ordinary guns, I think smart gun mandates might well be constitutional under the theory that they do not materially interfere with the right to keep and bear arms in self-defense. I'll have more to say with this sort of "substantial burden" inquiry when I blog about my article, but right now I'm too busy writing it to blog more extensively about it.

But the concern about electromagnetic pulses puts a different cast on things. Naturally, I don't expect an e-bomb being set off in L.A. any time soon; but I also don't expect a fatal gun accident in my house any time soon, since those are rare events, too. But I do know that there's a nontrivial chance that in my lifetime, there will be some terrorist or military attack on the place that I live. When that happens, there might well be serious social disruption caused by the attack, and extra need for me to be able to protect myself and my family. It would be just the wrong time to be armed with something that used to be a gun but that's now just an expensive lump of metal.

Naturally, this is just one cost that one has to consider — both in one's personal buying decisions and in deciding what the constitutional rule ought to be — and as I mentioned the benefits of smart guns, if they become highly reliable, are nontrivial. Moreover, the cost might be minimizable, for instance if the guns end up being properly shielded (though I understand that creating such shielding is not easy, which is one reason that e-bombs are potentially powerful weapons), or if the guns are set up so that when the "smart" technology fails, the result is a working dumb gun rather than an inoperable one.

But I don't think that we can just ignore this cost. We've generally lived our lives in environments of peace and civil order, but there's no guarantee that this will continue; in fact, judging by recent human history, there's reason to think that there's a significant (10%? 20%? who knows?) probability that at least some time in our lives, our homeland will be attacked, possibly with sophisticated anti-electronic weapons, and civil order will break down. And when that happens, we'll both be in special need of personal defense weapons, and in special need of personal defense weapons that haven't had their innards fried to a crisp.

2. When I blogged about this, Matthew Yglesias responded:

So let me ask again: Should considerations of such extraordinary threats, of an uncertain magnitude, be part of the policy analysis when it comes to smart gun mandates? Of the constitutional analysis?

TaxProf summarizes the Nancy Killefer matter thus (linking to various news stories):

Nancy Killefer, President Obama's selection to be the federal government's inaugural Chief Performance Officer, withdrew her candidacy after press reports surfaced that the D.C. government had slapped a $946.69 lien on her home for nonpayment of $298 of employment taxes (plus $48.49 of interest and $600 in penalties) on her two nannies and personal assistant over an 18-month period.

What next — people being pressured to withdraw from possible government appointments because of overdue parking tickets? It sounds like Ms. Killefer erred in the way lots of people err. I very much doubt that she was deliberately trying to cheat the government out of $298. Rather, she screwed up in having to deal with one of the many small tax and regulatory matters with which the government has burdened the public.

The legal system has a means of dealing with these errors, much as it has a means of dealing with overdue parking tickets: Modest financial penalties. The modest size of the penalty, coupled with its only being a financial penalty, reflects the modest magnitude of the misbehavior — it's a simple error that has to be remedied, not a deliberate fraud that merits serious punishment or deep moral condemnation.

Is this really the way we can get the best people for government jobs? Is it even the way that we can best insist on ethical behavior?

(Disclosure: I've screwed up things like filing my estimated tax payments, and have been assessed penalties that are slightly higher than Ms. Killefer's, though that were still quite modest. It has never gotten to liens, but maybe D.C. is just more lien-happy than the IRS.)

Hacking electronic road signs.

Reader Dominic Markwordt writes:

I happened to be doing some research for my law review comment and came across the oath all U.S. judges/justices are required to take.

Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: "I, _______ _______, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _______ under the Constitution and laws of the United States. So help me God." 28 U.S.C.A. § 453....

Is it constitutional? It would seem suspect under the Court's current establishment clause jurisprudence given that the oath required for the president in the Constitution does not include the phrase "So help me God." ...

Well, the judicial oath dates back to 1789, and the same First Congress that proposed the First Amendment. Simply including this religious reference would therefore not be an unconstitutional endorsement of religion, under the Marsh v. Chambers Give Me That Old-Time Religious Speech principle.

The Supreme Court has also read the Establishment Clause as prohibiting the coercion of religious behavior. This prohibition is much less controversial than is the prohibition of endorsement of religion. (Lee v. Weisman, which held high school graduation prayer to be unconstitutional coercion, was controversial, but because the dissenters didn't see the prayer as coercive -- they agreed, as I read the opinion, that genuine coercion of religious behavior was indeed unconstitutional.)

On the other hand, in this instance the prohibition of coercion is so uncontroversial that the statute will almost certainly be read as not requiring the "so help me God." Recall that Article VI of the Constitution says (emphasis added),

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The statute echoes this by allowing an "affirmation," as did the 1789 statute. But the whole point of an affirmation is that it does not involve calling on God; an affirmation would thus necessarily omit the "so help me God." (As I understand it, the affirmation option was placed in the Constitution because some Christian denominations -- such as Quakers -- oppose swearing to God.) And this is further confirmed by the No Religious Test Clause; requiring acknowledgment of God would itself be a religious test.

So never fear coercion here: No judge has to say "so help me God"; he is free to affirm and thus avoid mention of God or even of swearing (with its potentially religious connotation) altogether. But if you're worried about endorsement, Marsh says such endorsement is fine.