Giving Religious Liberty a Bad Name

      Religion and politics can be a combustible mix, but keeping church and state separate have helped the United States prevent the kinds of sectarian conflagrations seen in many nations around the globe. Justice Sandra Day O’Connor made that point when she joined the Supreme Court’s decision a decade ago to block the display of the Ten Commandments in a Kentucky courthouse.
      “Those who would renegotiate the boundaries between church and state must [ ] answer a difficult question,” O’Connor wrote in McCreary County v. ACLU (2005). “Why would we trade a system that has served us so well for one that has served others so poorly?"
      Today, the same impulse behind McCreary County’s decision to post religious laws in a secular courthouse can be seen in the scattered resistance in a handful of courthouses to recognizing same-sex marriages. Clerks and judges in 13 counties in three states — Alabama, Kentucky, and Texas — are claiming that their religious beliefs allow them, as government officials, to deny or at least disparage the constitutional right of gay and lesbian couples to equality before the law.
      The clerks and judges who are spurning same-sex couples insist that their rights are at stake in the conflict, not those of gay and lesbian couples. “I do not believe we have to check our religious beliefs at the door when we are elected,” Nick Williams, a probate judge in Washington County, Ala., remarked to CBS News correspondent Jericka Duncan.
      Williams has a petition pending before the Alabama Supreme Court seeking an order that would allow him to refuse to issue what the petition filed on Sept. 15 calls “a license to engage in sodomy.” Williams is in effect rejecting two Supreme Court decisions: the ruling in June striking down state bans on same-sex marriage and the decision in 2003 nullifying state laws against gay sex.
      Alabama Chief Justice Roy Moore signaled his intention months in advance of the Supreme Court ruling to defy any decision recognizing same-sex marriage. The Alabama court has yet to act on Williams’ petition; Williams’ attorney says an order would also protect the five other probate judges in the state who are refusing to license same-sex marriages.
      Meanwhile, Kim Davis, the defiant county clerk in Rowan County, Ky., is risking a second confrontation with a federal judge who sent her to jail for disobeying his order to issue marriage licenses to couples, gay or straight. U.S. District Court Judge David Bunning ordered Davis released on Sept. 8 on the condition that she not interfere with marriage licenses any further.
      Davis ordered the marriage licenses changed instead, with her name removed and a notation that the licenses were being issued under the authority of a federal court. Lawyers for the American Civil Liberties Union representing same-sex couples warn that the changes in the form cast doubt on the validity of the licenses.
      Whatever else happens in Davis’s case, she has succeeded mostly in giving religious accommodation a bad name. Earlier polls suggested that the public was closely divided on the somewhat analogous issue whether individuals such as bakers or photographers could claim a religious right to refuse to provide services to same-sex weddings. But a Washington Post-ABC poll released Sept. 15 found 63 percent of those surveyed said Davis should be required to issue licenses and 45 percent even supported her having been jailed for refusing.
      The modern era of religious accommodation began with the Supreme Court’s 1963 decision Sherbert v. Verner invoking the First Amendment’s free-exercise-of-religion clause to allow unemployment benefits to a Seventh Day Adventist  fired for refusing to work on Saturdays, the Adventists’ Sabbath. Significantly for the present context, Adell Sherbert was not seeking to be hired back. A year after the decision, however, Congress included in the Civil Rights Act of 1964 a provision giving employees a workplace right to reasonable accommodations of their religious beliefs.
      The Supreme Court scrapped the First Amendment test set out in Sherbert in the 1990 decision, Employment Division v. Smith. The ruling effectively blocked use of the Free Exercise Clause to gain religious accommodations from generally applicable laws. Congress responded three years later by restoring the previous test as a matter of statutory instead of constitutional law in the Religious Freedom Restoration Act (RFRA).
      RFRA was the basis for the Supreme Court’s controversial Hobby Lobby decision in 2014 allowing private employers to invoke religious beliefs in refusing a requirement to include cost-free contraceptives in employee health plan. In a dissent, Justice Ruth Bader Ginsburg noted that in previous decisions the Supreme Court said religious accommodations would not be allowed if they significantly affected third-parties’ rights.
      In the majority opinion, Justice Samuel A. Alito Jr. batted away Ginsburg’s warning that the ruling threatened enforcement of civil rights laws. But as the gay marriage cases advanced, many states moved to pass or strengthen mini-RFRAs for the precise purpose of allowing anti-gay discrimination.
      So far, the photographers and bakers are losing in courts or administrative agencies. The judges and clerks are stretching the religious liberty argument even further by claiming the right to turn gay and lesbian couples away at the courthouse door. The discord they have stirred up shows once again the wisdom of trying to keep religion and politics, church and state, apart.

On Supreme Court, Republicans Out of the Mainstream

      Supreme Court appointments have been politically charged decisions ever since John Adams appointed his Federalist ally John Marshall as chief justice just before the Anti-Federalist Thomas Jefferson was to succeed Adams as president. So it was only a matter of time before the issue came up in the 2016 presidential campaign.
      Voting experts say Supreme Court issues play little role in swaying undecided voters, but do help political parties play to their respective bases. The base-appealing strategy naturally leads candidates away from the political center, but the GOP hopefuls who discussed Supreme Court appointments in the CNN-hosted debate for “major” candidates last week [Sept. 16] took hard turns to the right in their remarks.
      Ironically, the most sensible remarks came from two of the Republican hopefuls in the second-tier debate. South Carolina senator Lindsey Graham and former Pennsylvania senator Rick Santorum both stood up for Chief Justice John G. Roberts Jr. despite cries for his scalp from conservatives for voting twice in 2012 and again in June to uphold President Obama’s health care reform. Graham called Roberts “one of the most qualified men” to come before the Senate, while Santorum said Roberts has “a long, good record” despite some bad decisions.
      In the main debate, however, Jeb Bush threw Roberts under the bus even though it was Jeb’s brother George W. who appointed Roberts. Bush said that Roberts “has made some really good decisions,” but he then suggested the appointment was a mistake because Roberts “did not have a proven, extensive record.” Bush wrapped up by declaring, “You can’t do it the politically expedient way anymore.”
      Texas senator Ted Cruz pointedly criticized both of the Bush presidents for picking unproven Supreme Court nominees over judges with a demonstrated commitment to right-wing ideology on the bench. In Cruz’s telling, Bush41 chose the newbie federal judge David H. Souter in 1990 over Edith Jones, who had already proven her conservative credentials after five years on the Fifth U.S. Circuit Court of Appeals. Then in 2005 Bush43 passed over another proven conservative judge, Michael Luttig, in favor of Roberts, who had only two years of D.C. Circuit decisions to vet for ideological inconstancy.
      Cruz, who supported Roberts’ confirmation while serving as Texas's solicitor general at the time, now labels the appointment “a mistake,” just as Souter’s appointment had been earlier. “You know, we're frustrated as conservatives,” Cruz said. “We keep winning elections, and then we don't get the outcome we want.” Fact-check: Democratic candidates have won the popular vote in five of the last six presidential elections.
      In Cruz’s counterhistorical scenario, the Jones and Luttig appointments would have changed the results not only in the Obamacare cases but also in this year’s same-sex marriage ruling. Yes, Roberts dissented in the marriage case, but apparently Cruz assumes that Jones, still on the bench at age 66, would have been the fifth vote for the conservatives in the case: no Souter retirement and thus no appointment of Sonia Sotomayor to succeed him.
      Cruz may well be right in imagining how Jones and Luttig would have voted in those cases, but it should be noted that they would have been bucking the consensus position taken by lower court judges in the cases. Out of four federal courts of appeals to rule on the Affordable Care Act, only one held the law unconstitutional. Out of more than 60 federal judges to rule in marriage cases after December 2013, only six voted to uphold same-sex marriage bans, including the two Sixth Circuit judges whose decision the Supreme Court overturned.
      On marriage, public opinion is now also clearly in favor of equal rights for same-sex couples; by now, public opinion also favors the Affordable Care Act though narrowly. So Cruz is arguing in favor of appointing justices outside both the legal and political mainstream. President Reagan tried that with Robert Bork in 1987; the Senate emphatically rejected him: 58-42.
      Former Arkansas governor Mike Huckabee took the Republicans’ colloquy one step further out of the mainstream last week by listing a series of “litmus tests” that he would impose on possible Supreme Court nominees. Among others, Huckabee said he would require a nominee to pledge support for recognizing a fetus as a person. Fetal personhood proposals have been defeated at the polls and rejected in the courts.
      For good measure, Huckabee also questioned the Supreme Court’s role in the constitutional system. “If the court can just make a decision and we just all surrender to it, we have what Jefferson said was judicial tyranny,” Huckabee said.
      In the earlier, second-tier debate, Louisiana governor Bobby Jindal had included Anthony Kennedy along with Roberts and Souter as mistakes by GOP presidents. He vowed, if elected, to appoint “conservative judges, judges that are going to be pro-life, judges that are going to follow the Constitution . . . .”
      In his Senate confirmation hearing, Roberts studiously avoided ideological labels and used his famous umpire metaphor to depict a judge’s role as neutrality. Umpires get booed from both sides, just as Robert has been. But among Republicans who would be president, the model nominee now appears to be somehow who will hew 100 percent to an ideological line that, not coincidentally, correlates directly with the GOP’s out-of-the-mainstream political views.

       Correction: This column originally stated that Cruz voted against Roberts' confirmation; he was elected to the Senate in 2012 and began serving in 2013. H/T: Richard Samp of Washington Legal Foundation, who pointed out the error.

Justice Breyer Takes a Wide Worldview

      Alone among the eight Supreme Court justices who have been married, Stephen G. Breyer chose a spouse from beyond U.S. borders. Breyer has been wed since 1967 to the former Joanna Hare, the daughter of a British viscount and a psychologist who now practices at the Dana-Farber Cancer Institute in Boston.
      Fittingly, Breyer is also the most internationalist-minded of the current nine, including the never-married Elena Kagan. Yes, almost all of them travel abroad from time to time: Anthony Kennedy teaches every year in Salzburg, Austria; John Roberts spent part of the past two summers in distant isles: Malta in 2014, Japan in 2015. But Breyer is the only one who claims fluency in a non-native language: French.
      Breyer has displayed his internationalist sensibilities in meetings at home or abroad with foreign judges and legal officials, in his writings, and in his judicial opinions. Now, Breyer has set out his views on the importance of international and foreign law in his new book being published this week, The Court and the World: American Law and the New Global Realities. And Breyer does not back away from explicitly endorsing the controversial use of international and foreign law — he calls it “cross-referencing” —  in U.S. judicial decisions.
      The subtitle states the thesis. In Breyer’s view, it is not merely desirable but inevitable for U.S. courts, including his, to learn about and take growing cognizance of foreign and international law. The “new global reality” is that the world is a smaller and more interdependent place in the 21st century than ever before.
      Breyer notes that U.S. companies and U.S. consumers can use their computers to enter into transnational dealings without ever leaving their offices or homes. And, as he illustrates from the Supreme Court’s docket in recent years, some of those dealings lead to legal disputes with thorny issues about how to apply U.S. law against the backdrop of law from other countries.
      Citations to foreign and international law in Supreme Court decisions are by no means new. Justice Byron R. White referenced foreign law in the 1986 decision upholding state anti-sodomy laws; Anthony M. Kennedy cited the European Court of Human Rights in the 2003 decision ruling such laws unconstitutional.
      White cited practices in other countries in successive decisions in 1977 and 1982 that ruled out the death penalty for rape or felony murder. But Kennedy’s citation to foreign law in the sodomy decision and in his later opinion to spare juvenile offenders from the death penalty touched a nerve among political and legal conservatives.
      On the court, the conservative justice Antonin Scalia sneers at the practice in his opinions and in public speeches. Foreign laws can “never, never be relevant to the meaning of the U.S. Constitution,” Scalia declared in a luncheon speech at George Mason University School of Law on May 29. “Who cares?” Scalia added. “We have our laws; they have theirs.”
      Breyer begins with cases that require an understanding of foreign law in order to apply U.S. law. As one example, he cites the 2004 decision, over his lone dissent, that a U.S. company could obtain a court order for discovery of evidence introduced in an antitrust proceeding before the European Commission. The decision in Intel Corp. v. Advanced Micro Devices, Inc. turned on whether the European Commission was akin to a judicial tribunal, as the majority believed, or a prosecuting office, as Breyer argued.
      With cases such as that one as background, Breyer eventually acknowledges the proposals introduced in Congress in recent years to prohibit federal courts from citing foreign law in their decisions. Breyer recalls the somewhat analogous effort by Sen. John Bricker in the 1950s to limit the law-making effect of treaties signed and ratified by the United States. The so-called Bricker Amendments were defeated, and the more recent proposals also failed to advance.
      Breyer summarizes the critics’ arguments. The critics may fear that U.S. judges will base decisions not on legal analysis but on “nose-counting” among other countries. The critics view use of foreign law as an infringement of U.S. sovereignty and as an affiliation with the “leftish” views of the worldwide judicial caste.
      Having acknowledged those arguments, however, Breyer rejects them. Judges worldwide find themselves facing similar problems, Breyer says, and U.S. judges may learn from reading the decisions of foreign judges on similar issues. The practice is not new, he emphasizes, but dates back to such great justices as John Marshall. And, in any event, the court’s work makes it impossible to sustain “the sort of hermetically sealed legal environment” that the critics appear to envision.
      Breyer sees a further benefit: the role that U.S. judges as diplomats can play in spreading principles of U.S. law worldwide. He and other justices have met with judges from a long list of countries, here or abroad, to discuss common issues. Behind those meetings lies the hope of spreading such principles as due process, habeas corpus, and the independence of the judiciary.
      “The enterprise is not without setbacks,” Breyer writes in conclusion. “But the effort is worthwhile.” The rule of law, he says, is an essential tool to meet the global challenges of the 21st century. U.S. judges and citizens alike, he says, should work at meeting those challenges together.

First Amendment Law Takes a Hit

     Supreme Court justices often emphasize that the court’s role is not simply to decide cases and correct errors in lower courts, but to rule on knotty legal issues and lay down rules that get the law right for future cases. But in two closely argued free-speech cases during the past term the court seems to some observers to have gotten the law quite wrong even while reaching what may well be the right results in both.

      In the first of the cases, Walker v. Sons of Confederate Veterans, the court decided that Texas’s Department of Motor Vehicles could refuse to allow the Sons of the Confederate Veterans from displaying the Confederate battle flag on customized license plates. The Fifth U.S. Circuit Court of Appeals had ruled the agency’s action a free-speech violation.

      In the second case, Reed v. Town of Gilbert, the court struck down an ordinance adopted by a Phoenix suburb that allowed ideological and political signs to be larger and to stay up longer than other kinds of signs. The Ninth U.S. Circuit Court of Appeals found no First Amendment violation.

      The justices divided 5-4 in the Confederate battle flag case, with Justice Stephen G. Breyer writing for a majority that included the three other liberals and, somewhat surprisingly, the conservative Justice Clarence Thomas. The vote to strike down the Gilbert sign ordinance was unanimous, but three liberal justices declined to join Thomas’s opinion for the court.

      By my lights, the court would get good grades in both cases if its only job were to correct errors from lower courts. The Fifth Circuit gave too little regard to Texas’s interest in preventing the use of government-issued license plates to display a symbol regarded by many in the state as racially offensive. On the other hand, the Ninth Circuit was too deferential toward Gilbert’s interest in limiting visual clutter on its roadways.

      In both cases, however, the court laid down inflexible rules that may come back to haunt in future free-speech disputes. In Walker, Breyer reasoned that automobile license plates are in essence government speech free of any First Amendment controls. By contrast, Thomas’s opinion in Reed imposes the highest constitutional test, “strict scrutiny,” on any law regulating speech based on its content.

      In separate opinions, justices in the minority sounded alarms. In the license plate case, Justice Samuel A. Alito Jr. wrote on behalf of the four conservative dissenters that the decision “establishes a precedent that threatens private speech that government finds displeasing.” In the sign case, Justice Elena Kagan warned on behalf of three justices concurring in the judgment that the decision could result in invalidating “thousands” of “reasonable ordinances.”

      In fact, Reed has already spread beyond the specific context of sign ordinances, as the New York Times’s Supreme Court correspondent Adam Liptak noted in an article last month [Aug. 18]. The Seventh U.S. Circuit Court of Appeals cited the newly established strict scrutinystandard for any content-based regulation in striking down a local ordinance against panhandling (Norton v. City of Springfield, Aug. 7).

      Before Reed, the court had upheld the ordinance because it  regulated speech based on the subject matter, not the content or viewpoint. But ruling on a petition for rehearing, Judge Frank Easterbrook Jr. said the Supreme Court’s broader definition of “content-based” required a different result. “Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification,” Easterbrook wrote.

      In another post-Reed decision, the Fourth U.S. Circuit Court of Appeals struck down a South Carolina law that barred robocalls on political but not on other topics. And a federal district court judge cited Reed in striking down a New Hampshie law that sought to protect ballot secrecy by banning election selfies.

      As Liptak noted, Reed could conceivably be extended to such content-based laws as drug labeling, securities regulation, and consumer protection. Liptak quoted Robert Post, a First Amendment expert and dean of Yale Law School, as warning that the decision “would roll consumer protection back to the 19th century.”

      A federal court in Virginia cited Walker in a ruling in late July to allow the state to recall specialty license plates carrying the Confederate battle flag. But the decision had spread to a somewhat different context even earlier. In an action at the end of the term in late June, the justices told the Fourth Circuit to reconsider a decision that North Carolina was violating the First Amendment by allowing specialty license plates for anti-abortion organizations but not pro-choice groups.

      In his story reporting the action, Slate’s Mark Joseph Stern recalled his earlier warning that Walker “was not a victory for civility or tolerance” but “an invitation for the suppression of expression.”

      Ironically, Breyer’s opinion establishing a bright-line test for license plates or other government speech is at odds with the distaste he voiced for categorical definitions in his separate opinion in the sign ordinance case. Breyer has been a flexible First Amendment pragmatist throughout his tenure. And, in his forthcoming book The Court and the World, Breyer writes favorably of European court rulings that apply a “proportionality” test in evaluating free-speech challenges.

      Bright-line tests have their place, but the court’s decisions in these cases give courts too much power to strike down valid speech regulations and give politically motivated governments too much power to censor pure speech. First Amendment law took a hit in both.