The Volokh Conspiracy

A video of my and other witnesses’ oral testimony on the use of drones for targeted killing in the War Terror, before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights is now available here (just click on “webcast”). It was interesting for me to see that there was a broad consensus among the academic and ex-military witnesses on two key points: that the use of drones for targeted killing of terrorists is not inherently illegal or immoral, and that we need stronger safeguards to ensure that we are limiting drone strikes to legitimate military targets. It seems to me that many of the senators who asked questions – both Democrats and Republicans – were also sympathetic on these points. Whether this will lead to appropriate reforms remains to be seen.

I will try to post my written testimony by tomorrow.

UPDATE: You can also watch the hearing at the C-SPAN site here, though there are a few technical problems in that video that I noticed.

UPDATE #2: I do want to clarify one unfortunately ambiguous aspect of an answer I gave to a question by Sen. Michael Lee around 2:07:00 of the video at the Subcommittee website. I mentioned there that the Israeli government government has a judicial review mechanism for considering the legality of targeted killing decisions. I should have made clear that the Israeli system, as outlined in the Israeli High Court of Justice’s 2006 decision on the legality of targeted killing, establishes after-the-fact judicial review rather than judicial review in advance, of the kind contemplated in proposals to create a FISA-like court to review targeting decisions aimed at US citizens in advance. Both Sen. Lee’s question and the part of my answer that mentions Israel were ambiguous on the issue of the timing of judicial review. So I wanted to clarify that point here. As I noted later in my testimony, we cannot and should not simply copy all aspects of Israeli policy in this area, since their strategic situation and political system differ from ours. But we nonetheless should try to learn from their experience.

For those who may be interested, on Tuesday at 4 PM, I will be testifying at a hearing on “Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killing,” held by the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights. My testimony will focus primarily on the issues addressed in this post. You should be able to watch the hearing on C-SPAN and possibly at the Subcommittee’s website linked above.

I was only very recently invited to participate in this hearing, and I am not sure who all the other witnesses will be. But I do know that Prof. Rosa Brooks of Georgetown will be one of them, and that Senator Rand Paul is going to make a statement before the Subcommittee at the start of the hearing.

UPDATE: The complete witness list is now available here. It is as follows:

General James Cartwright
United States Marine Corp (Ret.)
Washington, DC

Farea Al-Muslimi
Sana’a, Yemen

Peter Bergen
Director
National Security Studies Program
New America Foundation
Washington, DC

Rosa Brooks
Professor of Law
Georgetown University Law Center
Washington, DC

Colonel Martha McSally
United States Air Force (Ret.)
Tucson, AZ

Ilya Somin
Professor of Law
George Mason University School of Law
Arlington, VA

As Damon Root notes, The Supreme Court recently refused to consider Ilagan v. Ungacta, an important Public Use Clause property rights case. I wrote an amicus brief on behalf of numerous public interest organizations and law professors urging the Court to take Ilagan and use it as an opportunity to clear up major ambiguities left over after Kelo v. New London, and also as a vehicle for reversing Kelo itself. I discussed the significance of the case in this post:

Ilagan v. Ungacta is a fairly egregious case where land was condemned for the purpose of benefiting a powerful private party, in this case the then-mayor of Agana, Guam, and his family (the new owners of the condemned property). In Kelo v. City of New London, one of the most widely opposed decisions in Supreme Court history, the Court ruled that the Public Use Clause of the Fifth Amendment allows condemnations for virtually any “public purpose,” including transferring property from one private owner to another in hopes of stimulating greater “economic development.” But the Court also noted that government may not “take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.” Unfortunately, neither Kelo nor other Supreme Court decisions have made clear what it means for a taking to be “pretextual.”

[L]ower federal courts and state supreme courts have come up with at least five different approaches to deciding what counts as a pretextual taking....

Ilagan is a great case for the Court to clarify the meaning of pretext because it includes all four possible indicators of pretext identified by various lower court decisions: dubious motives, a highly skewed distribution of benefits, lack of careful planning, and a major private beneficiary whose identity was obvious in advance of the taking...

[T]his case is also a good opportunity for the Court to consider overruling Kelo.... [T]he case for overruling Kelo easily qualifies under the Court’s traditional standards for overruling a constitutional decision: Among other things, the ruling was based on poor reasoning, it has been widely criticized, and its recent nature ensures that it has not yet created much in the way of reliance interests. Most strikingly, the Court should reconsider Kelo because retired Justice John Paul Stevens, the author of the Kelo majority opinion, has publicly admitted that his reasoning was based in part on what he calls an “embarrassing to admit” mistake.

With rare exceptions, the odds against the Supreme Court accepting any particular case are usually long. For that reason, this outcome is not surprising, though it is still disappointing. But we are still going to continue our efforts to persuade the Court to both clarify the meaning of “pretext” and overrule Kelo.

The Federalist Society recently unveiled its new Executive Branch Review Blog, which focuses on legal and constitutional issues involving – you guessed it – the executive branch.

One of the regular bloggers there will be my wife Alison Somin, who serves as a special assistant/counsel with the US Commission on Civil Rights. Yesterday, she put up her first post, which focuses on the EEOC’s efforts to curb employers’ use of criminal background checks in hiring on the grounds that such checks might have a disproportionate negative effect on minority job-seekers:

The Equal Employment Opportunity Commission... is making a particular effort to restrict allegedly discriminatory use by employers of criminal background checks. Because African-Americans and Hispanics are more likely to be arrested or convicted of crimes than members of other racial and ethnic groups, the EEOC’s thinking goes, an employer policy that excludes job applicants based on past arrests or convictions will have a disparate impact on African-Americans and Hispanics and, if not job-related and justified by business necessity, may violate Title VII of the Civil Rights Act of 1964.

In April 2012, the EEOC issued a new Enforcement Guidance regarding such employer criminal background checks. Some civil rights advocacy groups praised the document, stating that it will help “remove unfair barriers for people who have moved beyond their pasts” and discourage employers from discriminating against employees who have paid their debt to society.”

But critics raised both substantive and procedural concerns about the new guidance. Substantively, critics noted that the new policy does not do enough to make clear in what circumstances an employer may use a background check; it notably contains no “safe harbors” and may chill some lawful use of checks....

The EEOC appears committed to rigorous enforcement of the new Guidance. At a Chamber of Commerce luncheon, EEOC member Victoria Lipnic emphasized the EEOC’s commitment to pursuing these cases, noting that “Criminal background checks are ripe for the picking.”

Although the EEOC does not ordinarily make investigations public until a case has been filed, news stories about recent targets of EEOC investigation suggest that the agency is setting a fairly high bar for “business necessity.” Such investigations include a probe into the use of checks at a company that provides security services, and also an unnamed firearms retailer, although the employer believes that federal law requires him as a federal firearms licensee to conduct such checks.

[NOTE: I have not copied the numerous links in the original post].

I lived in the Boston area for most of the period between 1980 and 2001, and was therefore especially saddened by today’s terrible bombing there. Fortunately, none of my many relatives and friends in the area were hurt, though obviously many others were not so lucky.

The nature of the attack clearly suggests that it may well be terrorism. But it may be a while until we know for sure, and also until we know exactly who did it and why.

For a long time, the conventional wisdom among legal scholars has been that an originalist interpretation of the Fourteenth Amendment would require courts to uphold laws that discriminate against women and laws banning interracial marriage. While these arguments were once advanced by defenders of sexism and Jim Crow laws, today they are usually used as justification for rejecting originalism itself rather than for rejecting court decisions such as Loving v. Virginia, which struck down anti-miscegenation laws. At the same time, most scholars have also argued that the original meaning of the Amendment permits states to adopt affirmative action programs.

Recent scholarship has called this conventional wisdom into serious question. In 2011, Northwestern law professor Steven Calabresi and Julia Rickert published an important article outlining an originalist case for striking down laws that discriminate on the basis of sex. More recently, both Calabresi (with Andrea Matthews) and David Upham have published originalist defenses of the result in Loving.

Just a few days ago, Michael Rappaport posted this paper questioning the conventional wisdom on originalism and affirmative action (which I myself questioned much less thoroughly here). It is not my view that the original meaning of the Fourteenth Amendment clearly requires courts to strike down all affirmative action programs. But the application of the original meaning to these programs is far from being as clear as the conventional wisdom suggests.

I don’t think the work of Calabresi and his coauthors, Rappaport, and Upham will definitively end the debate over originalism and discrimination. Critics of originalism will likely develop rebuttals to their arguments. But this new wave of scholarship does mount a strong challenge to the previously dominant conventional wisdom.

This is an announcement for George Mason University Law School students only.

This summer, I may end up hiring more research assistants than I originally anticipated. As a result, if you are a GMU law student, have strong research skills, and have any interest in constitutional law, property rights, political ignorance, or other topics on my research agenda, this might be a good opportunity for you. You would work about 5-12 hours per week on average. If things go well, you will be able to stay on during the 2013-14 academic year, as well as the summer, if you want to.

Past holders of this position have gone on to clerk for federal judges and secure coveted jobs at big-name law firms and the Department of Justice. My very first GMU RA was named one of San Diego’s 50 People to Watch last year. These achievements likely have far more to do with the quality of people I hired than with the benefits of the research assistant position itself. But I’m going to claim credit anyway!

If you are interested, please e-mail me your resume and transcript.

In the proud tradition of the Twinkie Defense and the Chewbacca Defense, we now have the Zombie Defense:

A young transient who said he was trying to shake zombies off a stolen semi-trailer truck he was driving caused a major freeway incident in southern California that sent four people to the hospital and tied up traffic for hours, the California Highway Patrol said.

Jerimiah Clyde Hartline, 19, was arrested in connection with the theft an 18-wheeler fully loaded with strawberries on Sunday near Temecula, according to the highway patrol.

Officer Nate Baer said Hartline had been riding with truck driver Daniel Martinez since his trip started in Tennessee after being kicked out of his home. When Martinez stopped to fill out paperwork at an inspection site, he left Hartline alone in the truck, Baer said. Hartline then jumped behind the wheel of the truck, sped off and soon after crashed into several vehicles on the freeway, Baer said.

Hartline was apparently under the influence of a substance that caused him to hallucinate, Baer said.

“He thought zombies were chasing him and clinging to the truck,” Baer said in an e-mail....

Hartline has been charged with taking a vehicle without the owner’s consent and receiving known stolen property, court records said.

Mr. Hartline and his defense team will have to read up on the politics of zombies, which I blogged about here. For an appropriate fee, I would be happy to serve as an expert witness on the law and economics of the undead, as well as on the special legal rights and obligations of those who are called upon to defend humanity against them.

This coming week, on Thursday and Friday, I will be doing three different two talks in New York City, two at NYU Law School, and one at Columbia Law School.

On Thursday, April 11, from 12:10 to about 1:10, Columbia law Professor Theodore Shaw and I will be debating affirmative action and the Supreme Court’s upcoming decision in Fisher v. University of Texas. The event is sponsored by the Columbia Federalist Society, and will be held in Room 103 of Jerome Greene Hall, 435 W. 116th St.

Later on Thursday, from 4 to 5:30 PM, I will be speaking at NYU about my forthcoming book Democracy and Political Ignorance (Stanford University Press), focusing specifically on the parts of the book that outline how the problem of rational political ignorance can be mitigated by decentralizing political power. This event is sponsored by the NYU chapter of the Federalist Society, and will be in Vanderbilt Hall, Room 216, at 40 Washington Square North.

Finally, on Friday, April 12, at 1 PM, I will again be speaking at NYU at a symposium commemorating the 100th anniversary of the 17th Amendment, entitled “Democracy Unfiltered: Discussing 100 Years of Direct Elections and Modern Issues Affecting the Law of Democracy.” Also on this panel will be Rick Pildes (NYU), Wendy Schiller (Brown), and Bruce Cain (Stanford). The event is sponsored by the NYU Journal of Legislation and Public Policy, and will be held in Vanderbilt Hall, at 40 Washington Square North.

This Wednesday, April 10, at 12 PM, I will be taking part in an event on the legal and policy issues surrounding the use of drones in the War on Terror, at George Mason University School of Law. I will be on a panel with my GMU colleagues Jeremy Rabkin and Nathan Sales. The event is sponsored by the GMU Muslim Students Association and by Students for Liberty. It will be held in Room 120.

Last week, I blogged about how the Alabama state legislature recently adopted a bill that undermines its post-Kelo eminent domain reform law and opens the door to the taking of private property for transfer to a wide range of politically connected private interests. Two state senators who sponsored the law have claimed that their bill doesn’t really expand eminent domain authority [HT: John Ross, who is similarly skeptical about the sponsors' denials]:

A new law designed to help lure high-tech manufacturing jobs to Alabama does not give cities greater eminent domain powers, several people involved in the legislation said Monday....

state Sen. Arthur Orr, R-Decatur, said that’s simply not the case. Orr said the “Major 21st Century Manufacturing Zone Act” does nothing to change or broaden eminent domain laws....

State Sen. Bill Holtzclaw, R-Madison, said he is “very big on personal property owner rights” and would not have co-sponsored the legislation if he thought it might be used to expand the use of eminent domain.

“I’ve been adamantly opposed to that,” Holtzclaw said Monday. “If there’s something there that was unintentional, we’ll close the loop on it.”

These denials are dubious, at best. The relevant legislation, Senate Bill 96 contains the following language:

It is further found and declared that the powers conferred by this chapter are for public and, in the case of automotive, automotive-industry related, aviation, aviation-industry related, medical, pharmaceutical, semiconductor, computer, electronics, energy conservation, cyber technology, and biomedical industry manufacturing facilities, private uses and purposes imbued with a public interest and for which public money may be expended, either directly or indirectly, in the case of automotive, automotive-industry related, aviation, aviation-industry related, medical, pharmaceutical, semiconductor, computer, electronics, energy conservation, cyber technology, and biomedical industry manufacturing facilities, and the power of eminent domain and police power exercised.

The language in bold is wording that the new bill added to preexisting law. Note that the whole section is, among other things, a list of purposes – now including “private” purposes – for which “the power of eminent domain” may be “exercised.” Those purposes now include private firms that are “automotive, automotive-industry related, aviation, aviation-industry related, medical, pharmaceutical, semiconductor, computer, electronics, energy conservation, cyber technology, and biomedical industry manufacturing facilities.” In other words, an enormous range of private businesses can now lobby to have the power of eminent domain used to transfer property to them, usually at the expense of the poor and politically weak.

This new authority is mostly limited to areas that contain “underutilized large tracts of real property suitable for the location of automotive, automotive-industry related, aviation, aviation-industry related, medical, pharmaceutical, semiconductor, computer, electronics, energy conservation, cyber technology, and biomedical industry manufacturing facilities which, when serving as the site therefor, enhances the public benefit and welfare by, among other things, facilitating the creation of skilled manufacturing jobs, promoting local economic development and the stimulation of the local economy, creating additional tax revenues, and enhancing the public’s overall quality of life.” But this is not much of a constraint. Almost any area can be considered “underutilized” relative to some other more intensive use of the same property. In addition, the new owners of the condemned land are not legally required to in fact ensure that the local economy will indeed improve relative to what would have happened otherwise. And, obviously, if the area were not “suitable” for the business the new owner operates, they probably would not try to have it seized for their benefit in the first place. Similar laws in other states have simultaneously endangered property rights and set back the very economic development they are supposedly intended to produce. We cannot know for certain what Alabama courts will make of the new law. But the most likely result is a major expansion of eminent domain authority.

I don’t know whether Senator Orr and Senator Holtzclaw are being disingenuous, got bad advice from staff or outside lawyers, or simply don’t realize what was in the bill they sponsored. The latter is certainly possible in an age where lawmakers often vote for laws they have little understanding of. If it really was an “unintentional” error, as Holtzclaw suggests might have occurred, he and his colleagues can demonstrate their good intentions by passing a new bill that repeals the language quoted above.

Finally, I should acknowledge that the two senators issued their denials before I wrote my initial post on this issue on April 3. I wrote that post in a hurry, did not do as much research as I should have, and as a result, did not run across their statements until today. I regret that oversight, even though the denials do not change my evaluation of the bill.

Prominent lawyer and legal blogger Robert Ambrogi reports on an interesting recent decision by Massachusetts judge Peter Lauriat, who has decided to ban tweeting but permit blogging by members of the audience in his courtroom [HT: Josh Blackman]:

Does it make sense for a judge to allow blogging but ban tweeting from the courtroom? That was the question in a recent Massachusetts murder trial, and the judge’s explanation of why he did it has failed to satisfy media observers.

The recent first-degree murder trial of Nathaniel Fujita attracted national media to Superior Court Judge Peter Lauriat’s courtroom. Fujita, 20, was convicted March 7 of brutally murdering his former high school girlfriend.

Given the media interest in the case, Judge Lauriat no doubt faced a difficult challenge in balancing the right of the media to be present in the courtroom against the need to maintain order and decorum. Even so, his decision about how to handle courtroom coverage left some observers scratching their heads....

The ban on tweeting drew the unavoidable question: What’s the difference? The judge allowed blogging from the courtroom, television cameras in the courtroom, and what he described as the “pencil press” in the courtroom. Why draw the line at Twitter?....

Judge Lauriat was clearly skeptical of Twitter. When told that journalists regularly use Twitter to report from courtrooms, he asked, “And what is it that [they] disseminate in what I understand to be a hundred and forty character maximum amount with Twitter?”

In the end, his explanation for banning Twitter focused primarily on SJC Rule 1:19, a Massachusetts court rule adopted last year to govern the use of technology in courtrooms.....

The rule requires reporters to register with the SJC’s Public Information Office in order to use technology such as computers or cameras.

I certainly agree with Judge Lauriat that blogging is a much better way to provide news coverage and commentary on legal issues than tweeting. That’s why I’m a blogger who (so far at least) doesn’t have a Twitter account. That said, as Ambrogi points out, Judge Lauriat’s legal rationale for drawing a distinction between the two seems dubious. It also raises the issue of whether reporters in his courtroom are allowed to post status updates on other social media, such as Facebook. Unlike Twitter posts, Facebook status updates are not limited to 140 characters. So perhaps they are closer to blogging than to tweeting under Judge Lauriat’s interpretation of SJC Rule 1:19.

UPDATE: Here is a more detailed account, which suggests that Judge Lauriat barred the use of all electronic social media, not just Twitter. It also makes more clear than Ambrogi’s analysis that Lauriat’s reason for distinguishing between Twitter and blogging is that the latter provides more serious and in-depth coverage of events than the former. He thus concluded that Twitter coverage was not really “necessary” to providing news coverage of trials. He may be right about that. But I’m not convinced that it is either constitutional or good policy for judges to impose restrictions on reporters’ coverage of their trials based on what the judges to believe good journalistic practices. As I see it, unless the use of Twitter was somehow disrupting the trial or causing the release of confidential information, it should be permitted. And it is difficult to see why courtroom tweeting would be any more disruptive and harmful in these respects than courtroom blogging.

In a recent New York Times column, prominent Supreme Court commentator Linda Greenhouse grossly misrepresents the federalism argument against the Defense of Marriage Act put forward in an amicus brief co-signed by several federalism scholars, including co-bloggers Randy Barnett, Jonathan Adler, Dale Carpenter, and myself. She claims that it is a “Trojan horse” for an effort to block same-sex marriage, and that it is somehow inconsistent with various Supreme Court decisions striking down state laws that violate individual constitutional rights protected by the Fourteenth Amendment:

Beware of conservatives bearing gifts.

Ever since last week’s frustrating Supreme Court argument in the Defense of Marriage Act case, I’ve been wondering whether the attack on DOMA will turn out to be a constitutional Trojan horse. It may bring victory: the demise of a spiteful federal statute, enacted by an opportunistic Congress and signed into law 17 years ago by a cowardly Bill Clinton. But at what price?..

[S]triking down DOMA on federalism grounds is a truly bad idea, and the campaign for marriage equality would be worse off for it. To explain the argument is to reveal its dangers. A ruling that left the states to their own devices when it comes to marriage would take the equal protection guarantee out of the picture...

It would, of course, provide the full benefits of marriage to those living in states that chose to recognize same-sex marriage. But it would snatch away the promise for those living elsewhere, particularly if the decision was based not only on the asserted absence of federal authority but on exaggerated notions of state sovereignty anchored in the Tea Party’s favorite constitutional amendment, the 10th....

Just such a vigorous constitutionally based states’-rights argument was put forward in a brief filed in the case last month by a half-dozen law professors under the title, “Brief of Federalism Scholars.” One of the group, Prof. Randy Barnett of the Georgetown University Law Center, is justly regarded as the intellectual father of the Commerce Clause attack on the Affordable Care Act. “DOMA falls outside Congress’s powers” because “marriage is not commercial activity,” the brief declares. It argues further that by limiting federal recognition to marriages between men and women, the law “undermines the states’ sovereign authority to define, regulate and support family relationships.”

There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)...

And of course the most famous federal intervention of all was Loving v. Virginia, the 1967 decision (shockingly recent) that overturned the laws of Virginia and 15 other states prohibiting marriage between people of different races.

Greenhouse’s argument is based on a fundamental error: she conflates structural limits on Congress’ authority outlined in Article I of the Constitution with individual rights constraints on the states. In reality, it is perfectly possible for a particular law to be both beyond the scope of Congress’ authority if enacted by the federal government and a violation of constitutional individual rights if adopted by a state. Our federalism brief merely claims that Congress lacks the constitutional authority to enact DOMA because the law exceeds the scope of Congress’ enumerated powers. That conclusion is perfectly consistent with the view that state laws banning gay marriage violate individual rights protected by the Fourteenth Amendment. Indeed, I myself have argued that the Court should strike down California’s Proposition 8 because it is unconstitutional sex discrimination. Similarly, we would argue that a federal law banning interracial marriage is also outside the scope of congressional power under Article I, while simultaneously endorsing the holding of Loving v. Virginia that state laws barring such marriages violate the Equal Protection Clause of the Fourteenth Amendment. The states’ sovereign authority over marriage – like all state sovereign authority – is constrained by constitutional individual rights. Nothing in our brief is inconsistent with that basic principle.

Greenhouse’s piece also contains several other errors. For example, our argument in the federalism scholars brief does not rely on the Tenth Amendment, and most of us are not “conservatives.” At least three of the six signers (Randy, Jonathan, and myself) are libertarians. Perhaps most important, the majority of us are actually gay marriage supporters, and therefore it is unlikely that we are somehow trying to “prop up” the anti-gay marriage “status quo,” as Greenhouse suggests. Dale Carpenter is one of the leading academic advocates of gay marriage, and has been involved in that cause and other gay rights issues for many years. Few people are less likely defenders of the “status quo” on these matters than Dale.

Unfortunately, this is not the first time that Greenhouse has misrepresented the views of her opponents on constitutional federalism issues, including myself. There is plenty of room for legitimate disagreement about both our federalism argument and other important issues at stake in the gay marriage cases. But the debate is not advanced by crude misrepresentation of our adversaries’ views.

UPDATE: I have fixed what was previously a broken link to Greenhouse’s column. My thanks to readers for pointing out this problem.

In a forthcoming article I coauthored with economists Bryan Caplan, Eric Crampton, and Wayne Grove, we find that voters routinely make major mistakes in attributing responsibility for a variety of policy outcomes to different branches and levels of government. This undermines voters’ ability to properly reward and punish political incumbents for their performance. The article will be published in PS: Political Science and Politics, and a draft is now available on SSRN. Here is the abstract:

Many scholars argue that “retrospective voting” is a powerful information shortcut that offsets widespread voter ignorance. Even relatively ignorant voters, it is claimed, can punish incumbents for bad performance and reward them if things go well. But if voters’ understanding of which officials are responsible for which issues is systematically biased, retrospective voting becomes an independent source of political failure rather than a cure for it. We designed and administered a new survey of the general public and political experts to test for such biases. Our analysis reveals frequent, large, robust biases in voter attributions of responsibility for a wide array of political actors and outcomes, with an overarching tendency for the public to overestimate influence, though there are also important examples of underestimation.

Co-blogger Eugene Volokh recently linked to a Virginia state court decision striking down as unconstitutional a state law that allowed religious societies without official clergy to designate only one member as having the power to perform wedding ceremonies, while religious groups that do have clergy can designate more. The court concluded that the First and Fourteenth Amendments bar this law because “The General Assembly [Virginia's state legislature] cannot favor one type of religion over another without a compelling government interest and a narrowly tailored method.”

I think the same reasoning should lead to the invalidation of another form of religious discrimination in the marriage law of our beloved Commonwealth, which I blogged about in this 2009 post:

My fiancee and I are not religious, and we plan to have our wedding performed by Judge Jerry Smith of the Fifth Circuit, the federal judge I clerked for. Unfortunately, however, Judge Smith lives in Texas. This would be fine under state law if he were a minister or other religious leader; but secular wedding officiants must be state residents.

Virginia law allows any minister of a religious denomination to perform a wedding, even if he or she is not a resident. The same applies to religious leaders of faiths that don’t have any official ministers. Similarly, state law allows any Virginia resident to perform a wedding if he posts a bond, and permits federal and state judges resident in Virginia to officiate even without posting a bond. However, Virginia does not allow out-of-state judges or any other nonresident secular personages to officiate. Thus, we have a clear case of discrimination on the basis of religion. Nonresident ministers and other religious leaders can perform weddings in Virginia; but nonresident secular leaders cannot. This holds true even if the secular figure and the religious one are exactly identical in every respect other than the fact that one is religious and the other is not (e.g. – if they are equally skilled at performing weddings, have the same high standing in their respective communities, and so on).

Under the Equal Protection Clause of the Fourteenth Amendment, courts strike down state laws that discriminate on the basis of religion unless the law in question passes “strict scrutiny.” To overcome the strict scrutiny hurdle, the state would have to show that the religious classification was “narrowly tailored” to the promotion of a “compelling state interest.” Without going into an exhaustive analysis, I think it highly unlikely that the Virginia marriage law can meet this standard. No good purpose is served by categorically forbidding the performance of marriages by nonresident secular figures, much less a “compelling state interest.”

In the end, my then-fiancee and I didn’t sue, and instead got married in the District of Columbia (in large part because she preferred a site in the District over the Virginia sites we looked at). But had we sued, I think we should have prevailed under the same reasoning as in the case noted by Eugene. The only difference between the two cases is that in one the state is discriminating in favor of some religious officiants relative to others, while in the other it is discriminating in favor of out-of-state religious officiants relative to out-of-state secular ones. But discrimination in favor of the religious against the secular is still clearly discrimination on the basis of religion, and thus subject to strict scrutiny. As the Supreme Court explained in Torcaso v. Watkins (1961), “[N]either a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion.’ Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers.” (emphasis added).

Hopefully, someone else will challenge this small but annoying example of unconstitutional religious discrimination in Virginia marriage law.