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The lecture notes are here. The live chat is here.

Individual Liberty II

• Eisenstadt v. Baird (1494-1500).
• Roe v. Wade (1500-1516).
• Planned Parenthood v. Casey (1516-1540).
• Notes (1540-1544).

Eisenstadt v. Baird

This is William Baird, who went to jail eight times in five different states for giving contraception to unmarried people.

This is “Emko Vaginal Foam,” the product Baird distributed that got him arrested.

This ad says “Emko… used by more woman than any other non-prescription birth control product.” Note the model is wearing a wedding ring.

This ad shows a father with a (much younger) mother, and a young baby, with the headline “3 reasons for spacing your children.” Below, it says “When the family is spaced with the help of Emko foam, mother has time to regain her vim and vigor, baby gets the abundant love he can thrive on . . .  and dad gets a break. Expenses are stretched out to where he can handle them with a smile.”

Roe v. Wade

This is Norma McCorvey (“Jane Roe”) protesting outside the Supreme Court in 1989 with her lawyer, Gloria Allred, after arguments in Webster v. Reproductive Health Services.

Here is McCorvey in 1985.

Roe didn’t even make top billing in the Times. LBJ died on decision day.

In 1996, McCorvey came out as opposing abortion. She noted that she lied in affidavits submitted to the Supreme Court, and she was never raped, let alone gang raped.

Here is the portrait of Taney that Scalia references in his Planned Parenthood dissent:

Howard Friedman offers several reasons why Indiana’s RFRA is so much more controversial than its 1993 federal counterpart. His second rationale crystalized why Indiana’s law has created such an outrage!

Traditionally it was assumed that the federal RFRA would be used by minority religions to fend off broad regulations that might be enacted without a careful weighing of idiosyncratic religious practices that are important to often discrete and insular groups with comparatively small numbers of adherents.  Since Hobby Lobby and the explosion of same-sex marriage cases, it is largely the Christian majority (or a segment of it) that asserts it is the victim of the majoritarian process, seeking exemptions that have a negative impact on minority groups that have broadly been the victims of past governmental discrimination.

Dale Carpenter expressed a similar sentiment:

What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights.

In my abstract for “Collective Liberty” (which just got a shot of new material), I stated the issue almost the exact same way:

Second, with respect to free exercise, we have witnesses a bold transformation of the Religious Freedom Restoration Act (“RFRA”). Introduced in Congress by Senators Kennedy and Rep. Schumer, and signed into law by President Clinton in 1993, RFRA was designed as a legislative override of Justice Scalia’s unpopular decision in Employment Division v. Smith. The law was designed as a shield to protect religious minorities, such as Native Americans who use sacramental peyote, from laws that infringe on their exercise. Fast­forward two decades, and RFRA is now wielded as a sword to enforce the religious identities of corporations, that cannot be burdened by the Affordable Care Act’s contraceptives mandate. In her dissent in Burwell v. Hobby Lobby, Justice Ginsburg highlighted the divide, focusing on how the Court’s accommodation of the religious liberties of Hobby Lobby would have an impact on “thousands of women” “who do not share the corporation owners’ religious faith.” For Ginsburg, the collective needs of society for covered contraception easily trumps religious liberty. The majority, which grudgingly conceded that covering contraception was a compelling interest, viewed the calculus exactly backwards.

On Friday, I published a post comparing the federal RFRA and the Indiana RFRA. I wrote it because I had not seen a *single* post that comprehensively compared the two laws. I considered this a huge failing, as virtually everything I read was filled with gross mischaracterizations of how RFRA works. The notion that it provides a “license to discriminate” disregards how these laws have operated in the federal government, and in nearly half the states in the union, for over two decades. That post alone received nearly 30,000 hits over the usually-slow weekend (which is roughly what I get in 2 weeks). There was a serious demand for information about how this law actually operates, as opposed to invective and diatribes.

In National Review today, I wrote a fairly comprehensive history of RFRA, to put the Indiana law into context. My major takeaway is that debates over the law today should be informed by the two-decade history of the federal RFRA and its state counterparts.

In this post I want to address three common rejoinders to this position.

First–when RFRA was enacted in 1993, it was not designed to protect for-profit corporations, only non-profit corporations. I call this the “Hobby Lobby sour grapes” argument. This issue was resolved by a bitter 5-4 decision, which probably half the country thinks is wrong, and the other half thinks is right. I get that. Even if Chuck Schumer and company did not intend for the law to apply to for-profit corporations–and this feeds into the Citizens United corporate personhood meme–I think the best reading of the statute provides for protections for corporations. Once the Solicitor General conceded that an incorporated Kosher butcher shop could not challenge a law that prohibited the ritual jewish slaughter, I realized how essential RFRA would be going forward. In any event, Indiana’s law makes clear what the Court held in Hobby Lobby. That people who associate in the corporate form do not lose their rights of free exercise.

Second–when RFRA was enacted in 1993, it was only meant to provide a remedy against the federal government, and not a defense against a private discrimination suit. I won’t repeat the history that I discuss in my NRO piece, but the short answer is their contemporaneous-silence on this issue isn’t nearly as important as the text of the statute they enacted. Four federal courts of appeals, and the Holder Justice Department (p. 3-4), have all taken the position that RFRA provides a defense. Judge Posner, Judge Moore (CA6) and then-Judge Sotomayor dissenting on the 2nd Circuit have taken the opposite position. This is an issue on which reasonable minds can disagree. Indiana’s position is not crazy.

The unavoidable conclusion–a fact that Mike Pence refused to address–is that RFRA does provide a defense to discrimination claims, similar to the “ministerial exception” that the Court unanimously recognized blocks the Hosannah-Tabor Church from being sued for disability discrimination. This is how defenses to Title VII work–in certain cases, the discrimination laws are trumped. I recognize that people today may not like that doctrine, but it is well-established in our caselaw. Ask any employment lawyer and they will tell you that not all discrimination for protected statuses is void. That being said, RFRA is not an automatic defense.

We need to distinguish the different types of claims that are prevalent today into three categories.

• First, there are cases involving bakers, florists, photographers, and what I’ll call the “creative professions.” For reasons advanced by Eugene Volokh in his amicus brief in the Elane Photograph case, it violates the First Amendment’s free speech clause to compel people to engage in expressive acts, such as photography or floral arrangement. The “Free Speech” argument obviates the need to even turn to RFRA.
• Second, there are cases involving catering halls, bed and breakfast inns, and other venues where ssm-related events can be held. I’ll call these the “venue professions.” I think under the laws of common carriers, these businesses are in a very different position. At common law, places of public accommodation were required to take all customers without regard to discrimination. (I think the Hearts of Atlanta Motel case could have been alternative resolved on this ground). These businesses are not engaged in the same sort of speech acts as the florist or photographer, and cannot rely on the First Amendment. In almost all of these cases, I think the RFRA claim will fail.
• The mixed cases present more difficulties. For example,  a Catholic Church owns a catering hall that they offer for church-related functions. Or if the owner of a chapel is also a minister, and provides the chapel as a benefit to those he marries. These are the difficult cases that RFRA exists for–not run-of-the-mill businesses turning away customers.

Third–when RFRA was enacted in 1993, it was not targeted at gays and lesbians. On its face, the law does no such thing. As I discuss in this post, Indiana’s new law offers the exact same burdens and remedies that have existed for two decades. But a variant of this argument takes on a Romer-esque tone: Even if facially neutral, Indiana’s RFRA attempts to withdraw rights (“dignity” if you ask Justice Kennedy) conferred on gay couples by the legalization of same-sex marriage (courtesy of Judge Posner). This argument, which I haven’t seen stated so explicitly, but is suggested by Marci Hamilton, would lead to the conclusion that not only is RFRA bad policy, but it is unconstitutional–whether under the Establishment Clause (a position the Solicitor General adopted in Hobby Lobby, and endorsed by RBG’s dissent) or under the Kennedy-Romer-Analysis (which the Court should have relied on, but inexplicably disregarded in Schuette, suggesting the doctrine is dead).

This argument reflects what I called in my article the “intersection between faith and equality,” and more broadly what I’ve described as a trend from individual to collective liberty. Free expression was (at least in 1993) viewed as a paragon right, that, when protected, will impede the application of laws of general applicability. It was viewed as a goal of such significance that federal law could give way. Today, I think (suspect) that the tides are shifting on this issue. To the extent that the protection of liberty gets in the way of equality, many see that equality must trump. The balance at the time of RFRA may be different than the balance today.

Update: On my last point, Doug Laycock sums up well what to do with those who support the law based on what may be dubbed “animus”:

Of course there are real bigots out there, and some of them discriminate against gays and lesbians. They are doing that in states without RFRAs as well as in states with RFRAs. They mostly aren’t asserting religious justifications; they aren’t producing cases. And if they do start to produce cases, all experience is that they’re going to lose.

Part of the problem is conservative legislators and activists promising the base that a state RFRA will protect them against gay-rights laws. That’s just pandering; there is no basis in experience to think that. But the gay-rights side has piled on with the charge that these laws are licenses to discriminate. So both sides are misleading the public. And the academics who have actually studied these laws and know what they do can’t get anyone to pay attention over the din.

Update 2: Making the opposite point is Dale Carpenter:

But what I think the “nothing to see here” defense misses is the cultural, political, legal, and religious context in which these laws are being passed–a context that could easily lead courts to apply the laws in more aggressive ways.  The newly energized effort to push mini-RFRAs like Indiana’s is almost entirely a reaction to the gay-rights movement, including but not limited to the increasing acceptance and reality of same-sex marriage. One need only listen to the kinds of examples that RFRA supporters cite as “burdens” on religion to know that RFRAs nowadays are directed at validating and legitimizing antigay discrimination. What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights.

What’s more, the effort to pass mini-RFRAs is now stimulated and fueled by a religious-litigation complex of groups and institutions that did not exist in anywhere near its present form, size, or sophistication when the original RFRA passed. It’s perfectly legitimate for any group, including anti-gay legal groups, to organize and litigate for their purposes. But the changed context they have created through their prodigious efforts makes the passage of spacious and comprehensive “religious freedom” protection very different from what it was two decades ago, even if the words of the laws are the same. We haven’t seen courts treat the strict scrutiny test in RFRA laws very seriously in the past, which is why we’ve avoided the “anarchy” Justice Scalia warned about in Employment Div.v. Smith(1990)(rejecting strict scrutiny of neutral laws that burden religion), but the increased litigation pressure and focus of anti-gay activists may lead courts–especially elected state court judges–in many places to break the dam. …

In the past, I might have been as optimistic as some apologists for Indiana’s RFRA that civil rights laws protecting LGBT people would pass the test. But the refusal of the legislature to codify any such assurances, combined with a backlash claiming to champion religious freedom and an anti-gay legal establishment ready to pounce, leaves me unpersuaded that there’s nothing to be worried about.

 

The lecture notes are here. The live chat is here.

Race & Gender Discrimination

• Loving v. Virginia (1373-1379).
• Sex Discrimination (1407).
• Craig v. Boren (1407-1416).
• United States v. Virgnia (1416-1424).
• Beyond Race and Sex (1425-1428).
• “Fundamental Interests” (1441-1443).

Loving v. Virginia

Here are Mildred Delores Loving (nee Jeter)  and Richard Perry Loving. They had three children, Donald, Peggy, and Sidney.

Here is a video of a documentary about their case.

Reed v. Reed

The home of Sally Reed, the eponymous plaintiff of Reed v. Reed, in Boise, Idaho, bears this plaque.

It reads, in part:

Sally Reed lived here. Idaho and the Nation owes a lot to Sally Reed, who, though an unlikely hero, blazed a trail nationally for women’s rights with a 1971 U.S. Supreme Court victory. Sally lived in a two-story wood frame home from 1935 until 1999. After her divorce in 1958, from Cecil R. Reed, Sally made a modest living for herself and her son Richard, by caring for sick and disabled veterans in her own home. Skip’s death in 1967 led to competing petitions’ to administer his small estate. Idaho law at the time said in such cases “the male must be preferred over the female.”

Though she never sought the spotlight and didn’t realize the widespread significance of what she was doing, Sally’s basic instincts for right and wrong moved her to challenge this discriminatory law all the way to the U.S> Supreme Court, with the help of .  . . now U.S. Supreme Court Justice Ruth Bader Ginsburg, then a Rutgers University Law Professor and American Civil Liberties Union Volunteer.

The location at 1682 S Vista Ave in Boise is now an Angler shop.

Courtesy of Nick Korte.

Craig v. Boren

Here is a photograph take in 1996 on the 20th anniversary of Craig v. Boren.

 This is the Honk-N-Holler Grocery store, where the light-beer was sold.

(Courtesy of Clare Cushman)

United States v. Virginia

This is the Virginia Military Institute.

Here are some of the first female cadets that graduated from VMI.

And here is Ruth Bader Ginsburg, also known as the Notorious R.B.G. (Yes, there is a tumblr)

And here is a picture of Scalia and Ginsburg riding an elephant in India.

In Young v. UPS, the Court rejected the positions of Young, UPS, and most importantly, the Solicitor General. In its brief, the SG urged the Court to grant Skidmore deference to EEOC Regulations.

The Solicitor General argues that we should give special, if not controlling, weight to this guideline. He points out that we have long held that “the rulings, interpreta- tions and opinions” of an agency charged with the mission of enforcing a particular statute, “while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). See Brief for United States as Amicus Curiae 26.

Justice Breyer’s majority opinion soundly rebuffed this overture, finding the lack of “thoroughness” in the EEOC’s consideration’s “limit” its “power to persuade.

But we have also held that the “weight of such a judg- ment in a particular case will depend upon the thorough- ness evident in its consideration, the validity of its reason- ing, its consistency with earlier and later pronouncements, and all those factors that give it power to persuade, if lacking power to control.” Skidmore, supra, at 140. These qualifications are relevant here and severely limit the EEOC’s July 2014 guidance’s special power to persuade.

Specifically, the Court faults the EEOC for issuing the guidance *after* cert was granted.

We come to this conclusion not because of any agency lack of “experience” or “informed judgment.” Rather, the difficulties are those of timing, “consistency,” and “thor- oughness” of “consideration.” The EEOC promulgated its 2014 guidelines only recently, after this Court had granted certiorari in this case.

The Court stressed that the position taken after cert was granted was different from positions taken in the past.

In these circumstances, it is fair to say that the EEOC’s current guidelines take a position about which the EEOC’s previous guidelines were silent. And that position is inconsistent with positions for which the Government has long advocated. See Brief for Defendant-Appellee in Ensley-Gaines v. Runyon, No. 95– 1038 (CA6 1996), pp. 26–27 (explaining that a reading of the Act like Young’s was “simply incorrect” and “runs counter” to this Court’s precedents). See also Brief for United States as Amicus Curiae 16, n. 2 (“The Department of Justice, on behalf of the United States Postal Service, has previously taken the position that pregnant employees with work limitations are not similarly situated to em- ployees with similar limitations caused by on-the-job injuries”).

 

The government offers no explanation for this change of heart.

Nor does the EEOC explain the basis of its latest guidance. Does it read the statute, for example, as embodying a most-favored-nation status? Why has it now taken a position contrary to the litigation position the Government previously took? Without further explanation, we cannot rely significantly on the EEOC’s determination.

This creates a presumption that the regulation was issued for the purposes of this case.

This isn’t the first time the Court faulted the Solicitor General for changing the government’s position. A quick search of my archives (and I’m sure I’m missing some) reveals similar admonitions in Kiobel (arguments), Levin v. United States, and Myriad. Justice Scalia and the Chief comments during oral argument in Kiobel sums up the issue well:

JUSTICE SCALIA: — it was the responsibility of your predecessors as well, and they took a different position. So, you know, why — why should we defer to the views of — of the current administration?

GENERAL VERRILLI: Well, because we think they are persuasive, Your Honor.

JUSTICE SCALIA: Oh, okay. …

CHIEF JUSTICE ROBERTS: Your successors may adopt a different view. And I think — I don’t want to put words in his mouth, but Justice Scalia’s point means whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.

GENERAL VERRILLI: So, Mr. Chief Justice, let me be clear: In this case our position is that the Court ought not recognize a cause of action.

In any event, the SG is now on clear notice that the Court will not defer to these types of last-minute changes.

Walter Olson comments:

My other favorite bit came when the majority opinion smacked down the EEOC and the U.S. Department of Justice over the EEOC’s maximally liberal guidelines on pregnancy discrimination, which the commission hurriedly came out with last summer and which DoJ, through the Solicitor General, insisted were entitled to special weight before the Court. Writing for his liberal colleagues, Breyer rejected the guidelines on grounds of “timing, ‘consistency,’ and ‘thoroughness’ of ‘consideration,’” pointing out that they ran “contrary to the litigation position the Government previously took,” that they offered no coherent reading of the statute, and, pointedly, that the EEOC had put them out “only after the Court had granted certiorari in this case” – almost as if it had been trying to influence the Court.