The Volokh Conspiracy

803 Code Mass. Regs. § 1.40(9)(c)(2) provides that, in determining a sex offender’s likelihood of recidivism — which in turn bears on what sort of registration requirements apply to the sex offender — one factor should be whether the offender is a “male offender who commits a sex offense, as defined in M.G.L. c. 6, § 178C, against a male victim. This demonstrates the degree of sexual deviance associated with this offender (Hanson & Bussiere, 1998; Hanson & Bussiere, 1996; Freund & Watson, 1991).” Doe v. Sex Offender Registry Board (Mass. 2008) upheld this against an Equal Protection Clause challenge (paragraph break added):

In determining the plaintiff’s likelihood of recidivism and degree of dangerousness, the hearing examiner also considered the fact that the plaintiff’s victim was a male. Title 803 Code Mass. Regs. § 1.40(9)(c)(2) advises that among the elements to consider in assessing the nature of a particular sex offense is whether the offense was committed by a male offender on a male victim. The plaintiff claims that the hearing examiner’s application of this regulation to his case penalized him for being homosexual in violation of his equal protection rights. This claim has no merit.

The equal protection analysis under both the State and Federal Constitutions is the rational basis test. The challenged regulation was drawn from findings of sex offender experts (as cited in the regulation) in order to assist the board in determining more accurately a sex offender’s risk to reoffend and level of dangerousness. Prefatory language to the regulation explains: “Much can be learned about an offender by studying the nature of the offenses he has committed.... Based on its review of the research, the [b]oard found the presence of deviant sexual interests dramatically increases the risk of reoffending and that the strongest deviant sexual interests have empirically been found to be more prevalent among those offenders who victimize strangers, prepubescent children, non-consenting males, [or] vulnerable persons.... The [b]oard otherwise, or unless indicated in this [subsection], does not consider sexual gender orientation of either the offender or the victim in determining the risk to reoffend [or] degree of dangerousness posed.”

We have no difficulty concluding that the regulation serves a legitimate State interest and does not seek to punish, or impose an adverse classification on, the sexual behavior of consenting male adults. It follows that cases relied on by the plaintiff, see Lawrence v. Texas, 539 U.S. 558, 563 (2003), and State v. Limon, 280 Kan. 275, 284 (2005), do not support his equal protection claim.

Is this right? In particular, should this be viewed as discrimination based on sexual orientation, or discrimination based on the offender’s sex, which is subject to a rather demanding form of “intermediate scrutiny” under the U.S. Constitution and “strict scrutiny” under the Massachusetts Constitution? And even if heightened scrutiny is required — whether because this is a sex classification, or because you think that sexual orientation classifications should be subject to heightened scrutiny — should that scrutiny be satisfied if there is indeed sufficient evidence that male offenders against male victims are especially likely to repeat their crimes?

The bill is SB 1172, and it bans “psychotherapy” of under-18-year-olds “aimed at altering the sexual or romantic desires, attractions, or conduct of a person toward people of the same sex so that the desire, attraction, or conduct is eliminated or reduced or might instead be directed toward people of a different sex.” This so regardless of whether the patient or the patient’s parents want the therapy to take place.

The bill also regulates such psychotherapy for adults, but the outright prohibition applies only to under-18-year-olds.

This week I’ll be discussing my new book, Flagrant Conduct: The Story of Lawrence v. Texas, at two different venues. On Thursday, the Charles Hamilton Houston Institute for Race & Justice will sponsor a speech at Harvard Law School from 5:30-7:00 p.m. Details are available here. 

On Friday evening at 7:00 p.m., I’ll be speaking in Washington, D.C. at the bookstore Politics & Prose.  Andrew Sullivan will offer commentary.  Details about that event are available here.

I’m writing an article on the First Amendment, criminal harassment law, and the constitutional distinction between speech said to a particular objecting person and speech said to the public; and in the process, I ran across this 2001 case that I thought I’d mention, since it could equally come up today.

Minnesota law provides, in relevant part,

“Harassment” includes: ... repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another ....

The court may grant a restraining order ordering [a person] to cease or avoid the harassment of another person or to have no contact with that person if ... the court finds at the hearing that there are reasonable grounds to believe that the respondent has engaged in harassment....

A first-offense violation of the restraining order is generally both a misdemeanor and punishable as contempt of court, but when a person “knowingly violates the order ... because of the victim’s or another’s actual or perceived race, color, religion, sex, sexual orientation, disability ..., age, or national origin,” the violation is a felony.

Now note that the statute isn’t limited to traditional telephone harassment or stalking that only involves unwanted speech to the target. It potentially also includes unwanted speech about the target, so long as it is “repeated” and “[has] a substantial adverse effect or [is] intended to have a substantial adverse effect on the safety, security, or privacy” of the target. This means the law potentially cuts off not just speech to one unwilling listener (or a few unwilling listeners), but also speech to willing listeners as well. The Minnesota courts have read the statute as covering two categories of unprotected speech — “‘fighting words’ likely to cause the average addressee to fight or protect one’s own safety, security, or privacy” and “‘true threats’ evidencing an intent to commit an act of unlawful violence against one’s safety, security or privacy” — but also “speech or conduct that is intended to have a substantial adverse effect, i.e., is in violation of one’s right to privacy.” This latter category does not correspond to any settled First Amendment exception, and it’s not at all clear what exactly it means.

Now on to the case, Faricy v. Schramm (Minn. Ct. App. 2001):

Appellant Derek Schramm is a parent of children enrolled in a Roman Catholic grade school in Minneapolis. Respondent Zachary Faricy is a teacher at the school. In November 2001, Schramm sent a letter to the school principal and the parish pastor informing them of his suspicion that Faricy “might be a homosexual.” Schramm based his suspicion on the fact that Faricy’s car displays an Apple Computer decal [apparently, one of the rainbow ones -EV] and that Faricy “lives or has lived ... in a neighborhood that has a higher population of homosexuals.” Schramm had determined Faricy’s place of residence through an internet search. Schramm contended in the letter that “both wearing a rainbow sticker on your car [and] living in a neighborhood where more homosexuals live is enough to send up a red flag.” In closing, Schramm asked school officials

what can be done to learn if Mr. Faricy chooses a ... homosexual lifestyle and if he is a sodomite, then what is his future around children at [the] school?

Citing fear that Schramm’s “behavior will escalate into something possibly dangerous,” Faricy petitioned the district court to issue a harassment restraining order. After hearing testimony from both Faricy and Schramm, the district court found that Schramm had engaged in two “acts of harassment.” The first act consisted of sending a letter to Faricy’s employer suggesting that Faricy might be gay and that, if he were gay, he should not be allowed to teach in the school. The district court identified the second act of harassment as Schramm’s inclusion in his letter of information about Faricy’s place of residence and the decal on his car. On the basis of these findings, the district court issued a one-year restraining order prohibiting Schramm from contacting Faricy and from engaging in further acts of harassment....

Since the order banned “further acts of harassment,” it would have criminalized — indeed, made a felony, given that Schramm was motivated by Faricy’s perceived sexual orientation — any similar further communications, for instance to other officials at the school or the diocese. Presumably the court’s theory was that Schramm’s e-mail intruded on Faricy’s “privacy,” though the appellate opinion doesn’t make that clear.

The Minnesota Court of Appeals reversed, on the grounds that the statute requires “repeated incidents,” and the letter constituted just one incident. But the appellate court didn’t opine on the trial court’s underlying judgment that this is the sort of incident — perhaps if repeated at least once more, as per the statute — that could lead to a restraining order against further such speech. At this point, the only judge who considered that particular question (the trial judge) answered it “yes.”

Note, by the way, that though Minnesota law generally bans discrimination based on sexual orientation, it specifically exempts discrimination by religious institutions, including religious schools. So to the extent that Schramm was calling for Faricy’s being fired, he was calling for an action that was legal. I suspect that even calling for a firing that violates antidiscrimination law is constitutionally protected, given Brandenburg v. Ohio (though query what effect United States v. Williams‘ recognition of a “solicitation” exception to the First Amendment would have on this). But that question wouldn’t come up in this case in any event, because of Minnesota’s religious institution exemption.

Note also that the statute doesn’t require any finding that any allegedly “harassing” accusation is factually false. Schramm’s evidence for Faricy’s supposed homosexuality seems mighty thin, but even if he got that wrong, and that could lead to a civil lawsuit for defamation or false light, or even a criminal libel prosecution (Minnesota has a criminal libel law, though one that seems not to be used these days), the anti-harassment statute is not focused on falsehoods.

That’s what the Wayne (Ohio) Local School District Board of Education apparently believes. Waynesville High School Principal Randy Gebhardt barred high school student Maverick Couch from wearing this T-shirt, and when his action was challenged, the school district lawyer responded:

It is the position of Wayne Local School District Board of Education that the message communicated by the student’s T-shirt was sexual in nature and therefore indecent and inappropriate in a school setting.

The lawyer cited Bethel School Dist. No. 403 v. Fraser (1986) as support for the proposition that the speech may be banned. But Fraser, which involved sexual innuendo in a speech to a student assembly, hardly suggested that all speech on political and religious questions related to sexuality and sexual orientation could be banned from public high schools. (The other case that the lawyer cited, Pyle v. South Hadley School Committee (D. Mass. 1994), also involved vulgarity and sexual innuendo.)

Indeed, even Morse v. Frederick (2007) acknowledged that Fraser “should not be read to encompass any speech that could fit under some definition of ‘offensive.’ After all, much political and religious speech might be perceived as offensive to some.” This is precisely what’s at issue here: religious speech that is perceived as offensive to some. That the speech deals with how people should view gays and lesbians surely does not strip it of protection.

To be sure, even political speech could be restricted under Tinker v. Des Moines Indep. School Dist. (1969) if it seems likely to materially disrupt the work of the school, for instance by triggering fights and the like. But the school district doesn’t even claim that any such disruption has happened, or that there was evidence that it would be likely to happen. (At most, it says that there was “a highly charged atmosphere” in the school, a justification that’s insufficient under Tinker.)

So this strikes me as pretty clearly unconstitutional, at least absent some showing of material disruption caused or likely to be caused by the T-shirt. An application for a temporary restraining order, aimed at setting aside the principal’s decision, was filed yesterday in federal district court, and is now pending (Couch v. Wayne Local School Dist., No. 1:12-cv-00265-MRB). For more, see this Cincinnati Enquirer article. Thanks to Prof. Howard Friedman (Religion Clause) and Thomas Riebs for the pointer.

In today’s Times Book Review section, Pulitzer-Prize-winning historian David Oshinsky reviews my new book, Flagrant Conduct: The Story of Lawrence v. Texas.  I promise not to make a habit of posting these notices, but I’m quite honored by his review, as I have been by several other recent reactions to the book.

Georgetown Law Professor David Cole has a terrific review of my new book, Flagrant Conduct: The Story of Lawrence v. Texas (Norton) in the April 5 issue of the NYRB. Cole presents the basic background, including what likely happened the night John Lawrence and Tyron Garner were arrested for the crime of “Homosexual Conduct,” a Texas law that forbade oral and anal sex for same-sex couples but not for opposite-sex couples. A similar Georgia law had been upheld in Bowers v. Hardwick (1986), which the Lawrence Court reversed.  Cole notes that it was unusual enough for the Court to recognize its own error:

But for it to happen in a mere seventeen years, the equivalent of a nanosecond in the “Jarndyce and Jarndyce” tempo of constitutional law, is nothing short of extraordinary. The story of how it happened is one of the great success stories of public interest law. It shows what a carefully orchestrated litigation campaign can do when supported by a passionate and growing social movement. At the same time, it offers a cautionary tale for the current controversy over the recognition of same-sex marriage, which may soon be headed, prematurely, to the Supreme Court.

The Supreme Court’s 2003 decision in Lawrence v. Texas devoted a scant paragraph to an anodyne description of the facts of the case, barely mentioned the defendants, and described their alleged conduct only as “a sexual act.” The Court was evidently more at ease with the nuances of constitutional jurisprudence than with the messy details of the case. Dale Carpenter’s Flagrant Conduct fills in the gaps, and provides a rich, meticulous, and fascinating account of the most important constitutional decision so far on the status of gays and lesbians in American society.

Unlike the Court, Carpenter revels in the factual details and the personalities involved in the struggle, as he takes us from the recesses of a private bedroom in a seedy condominium on the outskirts of Houston to the oral argument in the grand chamber of the United States Supreme Court. Along the way, he offers sharp insights into the politics, ironies, and strategies behind the Brown v. Board of Education of the gay rights movement.

Over the next couple of months I will be on an active speaking tour for my new book, Flagrant Conduct: The Story of Lawrence v. Texas, which has just been published by W.W. Norton & Co. 

Of perhaps greatest interest to readers of this blog are a couple of events coming up soon.  This Friday, March 16, I’ll be in Washington speaking at lunchtime at the Cato Institute, with commentary by Washington Post editor Charles Lane, and moderated by Cato’s David Boaz.   The following Thursday evening , March 22, I’ll be in New York speaking at the Institute for American Values, hosted by Elizabeth Marquardt, Director of the Center for Marriage and Families.

Both events are open to the public and free of charge, but require pre-registration at the links above.

From Radio Free Europe:

Since the start of this year, death squads have been targeting two separate groups — gay men, and those who dress in a distinctive, Western-influenced style called “emo,” which some Iraqis mistakenly associate with homosexuality.

At least 14 young men have been bludgeoned to death in the last three weeks in east Baghdad, an area dominated by Shi’ite Muslims, according to local security and medical sources who spoke to Reuters on condition of anonymity.

Killings have been reported by other methods and in other cities as well. Since national authorities are not recording the incidents as a special category, the total is not known.

In recent days, members of Shi’ite militias, mainly in the Sadr City district, have circulated lists of names of people targeted for killings. The threats refer to “obscene males and females,” understood to refer to both gays and “emos,” an American teenage subculture of distinctive hairstyles and black clothes that has spread to Iraq....

Iraq’s Shi’ite-dominated government may not be helping. The Interior Ministry last month released a statement that labeled the emo culture “Satanism.” It said a special police force would stamp it out.

Thanks to Robert Dittmer for the pointer.

As I’ve said before, the Supreme Court has never decided whether K-12 schools may remove books from school libraries based on their viewpoints, or may filter out Web sites based on their viewpoints. The Court’s cases dealing with this question, Board of Ed. v. Pico and U.S. v. American Library Ass’n were badly splintered and provided basically no majority on the subject.

Pico, for instance, split 4-4 on the book removal issue, with the deciding vote (Justice White) expressing no opinion and sending the case down for more factfinding. (“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.”) Likewise, ALA yielded no useful conclusion.

This makes yesterday’s Parents, Families & Friends of Lesbians & Gays, Inc. (PFLAG) v. Camdenton R-III School Dist. (C.D. Mo. Jan. 15, 2012) especially interesting: The court issued a preliminary injunction against a school district’s use of a filter that apparently generally filtered out pro-homosexuality sites — including ones that weren’t sexually explicited — but not anti-homosexuality sites. (“URL Blacklist systematically allows access to websites expressing a negative viewpoint toward LGBT individuals by categorizing them as ‘religion’, but filters out positive viewpoints toward LGBT issues by categorizing them as ‘sexuality’.”) The court held that government’s continued use of this filter, especially given the availability of other filters that did better both at blocking outright porn and at not blocking commentary on homosexualiy, was likely viewpoint discriminatory and therefore unconstitutional, which led it to issue a preliminary injunction. The standard for issuing such an injunction was (in part) that plaintiffs showed “a ‘fair chance’ that [their claim] will succeed on the merits”; but the court’s reasoning suggests that the court is even more persuaded on the merits than that.

This might prove to be the correct result, but the court’s reasoning strikes me as conclusory. Here, as best I can tell, is the heart of the court’s analysis:

Camdenton’s internet access system in its library is neither a traditional nor a designated public forum. United States v. Am. Library Ass’n (“ALA”), 539 U.S. 194, 205 (2003) (plurality opinion) (internal quotes omitted). It is a nonpublic for[um]. “Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and viewpoint neutral.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 806 (1985). But “the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.” Id.

Yet the statement that the system “is a nonpublic forum” is unsupported. School-provided Internet access indeed isn’t a traditional or designated public forum, but that just means that it’s either a nonpublic forum or not a forum at all. This last category, described in Arkansas Educ. Television Comm’n v. Forbes, involves situations where the government chooses to use its property to present speech that it likes and not speech that it dislikes. A government-run public television station, for instance, may air anti-racism programs but not pro-racism programs without violating the First Amendment; a school-provided bulletin board can display messages the school favors but not ones the school opposes; the government may accept for park display monuments that celebrate some things but not others.

Now the scope of this not-a-forum-at-all doctrine is not clear, and it might be that when it comes to government provision of access to a vast range of others’ material, in a situation where few people would see the government as endorsing all that material, the “nonpublic forum” category — with its prohibition on viewpoint discrimination — is more fitting than a “not a forum at all” category. But that conclusion has to be supported; as best I can tell, the district court instead just asserts it.

The district court does cite to Pratt v. Indep. School. Dist. No. 831 (8th Cir. 1982), which held unconstitutional the exclusion of material even from a school curriculum — given this, exclusion of material from library access would be even more clearly unconstitutional. But Pratt (which strikes me as very badly wrong) seems to me not to survive Hazelwood School Dist. v. Kuhlmeier (1988), which held that the government had very broad control over school curriculum. That control (controversially, though I think correctly) was held to include control over a student newspaper produced as part of a journalism class. Even more clearly, it would include control over what movies are shown as part of the school curriculum, the issue in Pratt. So while Hazelwood doesn’t dispose of the library filtering question, since it’s not clear whether it should be treated as a “curriculum” matter, Hazelwood does mean that Pratt is no longer a viable precedent.

Finally, one twist: According to the court in PFLAG, the school denied that it was engaged in viewpoint discrimination, and thus didn’t argue that the viewpoint discrimination was justifiable. “Camdenton has repeatedly said that its goal is not to protect its students from websites expressing a positive view toward LGBT individuals, or that such websites interfere with the requirements of appropriate discipline. Rather, Camdenton has argued that its internet-filter system does not discriminate based on viewpoint.” So perhaps the case could be decided just on that ground — but the court’s reasoning, as I understand it, goes further and says that all viewpoint discrimination in library filtering is presumptively unconstitutional, whether or not it is a deliberate and substantively defended decision on the school’s part. The case thus strikes me as an interesting and important decision, though vulnerable on the grounds I mentioned.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UCLA hosts the journal Dukeminier Awards: Best Sexual Orientation and Gender Identity Law Review Articles. (Many of our lawyer readers have seen Jesse Dukeminier’s work in their property and wills and trusts classes; he was a leading casebook author and scholar in both fields.) The journal mostly reprints articles that it selects from those published in other journals — I had the honor of having one of my articles, Same-Sex Marriage and Slippery Slopes reprinted in the Dukeminier Awards 2006 issue — but it also prints student articles that it selects among those that are submitted directly to it, and throws in a $1000 award to boot. So if you have any articles on the subject that you’d like to submit, please do so; here are the details:

Continue reading ‘Student Writing Competition, Hosted at UCLA, on Sexual Orientation and Gender Identity’ »

As I noted in June, a district court held that, under Boy Scouts v. Dale, a gay athletic group had a First Amendment right to limit the number of straight players on a team, since that was necessary for it to convey its expressive message. The court has now issued a new opinion (Apilado v. North American Gay Amateur Athletic Alliance (W.D. Wash. Nov. 10, 2011)) reasserting its conclusion, but developing the analysis further:

In a May 31, 2011 order, the Court denied Plaintiffs’ motion for partial summary judgment as to whether Rule 7.05, which stated that teams participating in the Gay Softball World Series (“GSWS”) were limited to two players who were not predominantly interested in the same sex, violated the Washington Law Against Discrimination (“WLAD”). In response to the motion, NAGAAA argued that Rule 7.05 was protected by the First Amendment.

To determine whether or not the First Amendment did indeed protect Rule 7.05, the Court applied the three-pronged test found in Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000). Under that test, NAGAAA’s decision to exclude someone from membership is protected by the Constitution if NAGAAA can show three things: (1) NAGAAA is an expressive association, (2) forced inclusion of unwanted members would affect NAGAAA’s ability to express its viewpoints, and (3) NAGAAA’s interest in expressive association outweighs the state interest in eradicating discrimination. See id. at 648-59. The Court held that NAGAAA had satisfied the first two prongs but determined that the parties had not provided enough information to resolve the third prong.

Later, in response to a motion for reconsideration from the Plaintiffs, the Court requested additional briefing from the parties on that third prong, so that NAGAAA’s First Amendment rights under the Dale test could be conclusively decided. The Court now considers that final question: does NAGAAA’s interest in expressive association outweigh the state interest in eradicating discrimination? ...

In the previous Order, wherein the Court determined that NAGAAA was an expressive association, the Court did not find an explicit formulation of the message NAGAAA intended to express. Instead, the Court found that NAGAAA communicated a mission and a purpose through its literature that fell easily within the standards that the Supreme Court had set for an expressive association. Now, however, NAGAA has made its intended message explicit: ...

Continue reading ‘More on the Gay Athletic Group’s First Amendment Right to Limit the Number of Straight Players on a Team’ »

That’s part of the Louisville Human Relations Commission complaint filed by the Lexington Fair Housing Council (a local nonprofit) last year against Teen Challenge; the nonprofit also alleged that Teen Challenge discriminates based on sexual orientation in housing. The full allegation:

The Respondent provides housing in Lexington, Kentucky that is open to individuals of all religions, but teaches against homosexuality and has a preference for [individuals] who are not gay.

The director of another fair housing of advocacy group in the area echoed this view, according to the Louisville Courier-Journal, Apr. 13, 2011 (payment required):

“I do think they’re in violation of the Fairness Ordinance,” [said Chris Hartman, the director of another fair housing advocacy group]. Discrimination could be in the form of trying to persuade women to change their lives or harassing them “by preaching against it,” he said....

As of April, the complaint was still pending with the Human Relations Commission; I’m trying to figure out if more has happened to it since. [UPDATE, Oct. 11, 2011: I've confirmed that the complaint is still pending.]

UPDATE: Just to make it clear, my concern here is with the claim that the very teachings against homosexuality are illegal in a residential setting such as this one; I think that it would violate the Free Speech Clause for the Commission to hold that such teachings violate the law. Requiring Teen Challenge not to discriminate based on sexual orientation in selecting residents is a separate matter. Such a requirement would not violate the Free Speech Clause; nor would it violate the Free Exercise Clause, even if Teen Challenge claimed that it felt a religious obligation to exclude lesbians (though in that case it might violate the Kentucky Constitution’s religious freedom guarantee, if Kentucky courts decide to interpret that provision as securing a limited right to religious exemptions from generally applicable laws).