in the San Francisco Chronicle. Well, not exactly outed, since according to the article the judge, Vaughn Walker, has made no secret of his sexual orientation. In the very high-profile case in federal court in California challenging the constitutionality of Proposition 8, the gay marriage prohibition passed by California voters in 2008, Judge Walker has issued several rulings adverse to the defendants. Do you think this new information makes him inappropriately biased? Would the judge be less biased if he were a Roman Catholic heterosexual male with nine children? This issue reminds me of race discrimination cases in which White defendants sought to disqualify the judge because he was Black and identified with the civil rights movement, and was therefore allegedly incapable of being impartial. What do you think?

The fundamental premise of the Court's decision in Citizens United v. FEC is that a corporation should have the same First Amendment rights to engage in political speech as any citizen, because a corporation is simply an "association of citizens" in the "corporate form." I think this is going to lead to the politicization of everyday economic life.

The Court's reasoning that corporate speech is simply the collective speech of individual citizens does ring true for certain non-profit, ideologically-oriented corporations, especially when they are membership-driven. When the NRA or the Sierra Club takes members' dues and uses that money to speak on political issues, they in a rough way are simply amplifying the voices of their members, even if an individual member disagrees with one policy or another advocated by the group. That person can always quit.

BUT I don't think that most stockholders in for-profit corporations think that those corporations represent the stockholders' political views. We expect that corporation to be an economic actor, to be interested in making money, and to be generally agnostic with regard to political matters. They are the subjects of government regulation, not the makers of government regulation. Yes, we understand that our bank probably has a lobbyist that advocates a position with regard to banking regulation, but they aren't representing us in any but the most attenuated way. I suppose there's a sense in which we expect the bank to favor regulation that allows them to make money in the long run, but that could lead them to either support or oppose any particular proposal, depending on their political ideology, and I doubt that many people choose their bank based on its political ideology and attitude towards regulation.

So we tend to think of our market decisions and our political advocacy in different ways. We buy the best or the cheapest pizza without regard to whether the founder of the company and its top executives ardently oppose abortion.  We buy stocks of promising corporations without regard to whether its board of directors believes that global warming is a hoax.

This is of course a false barrier, and always has been. And it has already been breaking down. Recently several companies resigned from the Chamber of Commerce because of its strong political stance in opposition to legislation aimed at climate change. In the last election cycle there were websites rating companies as "blue' or "red" based on the proportion of employee contributions given to one party or the other. Readers were encouraged to support those companies that reflected the readers' political allegiances.

SO NOW the Supreme Court has exposed the connection between our political and economic commitments, and cognitive dissonance is no longer sustainable. The Court is telling us that Wal-Mart's speech is our speech when it works to oppose fair pay rules. That the Teamsters' speech is our speech when it opposes trade agreements. That Citibank speaks for us when it fights against banking regulation.

I don't see how I can now avoid making political calculations with regard to my investments and purchases. No, I won't be able to be pure in my judgments, and yes my decisions surely will be incomplete and inconsistent.  But the Court's decision challenges those who disagree with certain aspects of free market ideology to step out of it. It tells us that our corporate associations are not only economic but political. It's on.

     Here are some extended quotes from Dr. King's "Letter from a Birmingham Jail," links to several other of Dr. King's greatest speeches, and a link to President Barack Obama's speech yesterday in remembrance of Dr. King.

     On April 16, 1963, King released his "Letter from a Birmingham Jail."  First, King explains why he has come to Alabama, and why he should not be considered an "outsider:"

I think I should indicate why I am here in Birmingham, since you have been influenced by the view which argues against "outsiders coming in." I have the honor of serving as president of the Southern Christian Leadership Conference, an organization operating in every southern state, with headquarters in Atlanta, Georgia. We have some eighty five affiliated organizations across the South, and one of them is the Alabama Christian Movement for Human Rights. Frequently we share staff, educational and financial resources with our affiliates. Several months ago the affiliate here in Birmingham asked us to be on call to engage in a nonviolent direct action program if such were deemed necessary. We readily consented, and when the hour came we lived up to our promise. So I, along with several members of my staff, am here because I was invited here. I am here because I have organizational ties here.

But more basically, I am in Birmingham because injustice is here. Just as the prophets of the eighth century B.C. left their villages and carried their "thus saith the Lord" far beyond the boundaries of their home towns, and just as the Apostle Paul left his village of Tarsus and carried the gospel of Jesus Christ to the far corners of the Greco Roman world, so am I compelled to carry the gospel of freedom beyond my own home town. Like Paul, I must constantly respond to the Macedonian call for aid.

Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial "outside agitator" idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.

     Next, King explains his philosophy of non-violent civil disobedience and expresses his determination to implement that philosophy in the City of Birmingham. 

In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices exist; negotiation; self purification; and direct action. We have gone through all these steps in Birmingham. There can be no gainsaying the fact that racial injustice engulfs this community. Birmingham is probably the most thoroughly segregated city in the United States. Its ugly record of brutality is widely known. Negroes have experienced grossly unjust treatment in the courts. There have been more unsolved bombings of Negro homes and churches in Birmingham than in any other city in the nation. These are the hard, brutal facts of the case. On the basis of these conditions, Negro leaders sought to negotiate with the city fathers. But the latter consistently refused to engage in good faith negotiation.

Then, last September, came the opportunity to talk with leaders of Birmingham's economic community. In the course of the negotiations, certain promises were made by the merchants–for example, to remove the stores' humiliating racial signs. On the basis of these promises, the Reverend Fred Shuttlesworth and the leaders of the Alabama Christian Movement for Human Rights agreed to a moratorium on all demonstrations. As the weeks and months went by, we realized that we were the victims of a broken promise. A few signs, briefly removed, returned; the others remained. As in so many past experiences, our hopes had been blasted, and the shadow of deep disappointment settled upon us. We had no alternative except to prepare for direct action, whereby we would present our very bodies as a means of laying our case before the conscience of the local and the national community. Mindful of the difficulties involved, we decided to undertake a process of self purification. We began a series of workshops on nonviolence, and we repeatedly asked ourselves: "Are you able to accept blows without retaliating?" "Are you able to endure the ordeal of jail?" We decided to schedule our direct action program for the Easter season, realizing that except for Christmas, this is the main shopping period of the year. Knowing that a strong economic-withdrawal program would be the by product of direct action, we felt that this would be the best time to bring pressure to bear on the merchants for the needed change.

Then it occurred to us that Birmingham's mayoral election was coming up in March, and we speedily decided to postpone action until after election day. When we discovered that the Commissioner of Public Safety, Eugene "Bull" Connor, had piled up enough votes to be in the run off, we decided again to postpone action until the day after the run off so that the demonstrations could not be used to cloud the issues. Like many others, we waited to see Mr. Connor defeated, and to this end we endured postponement after postponement. Having aided in this community need, we felt that our direct action program could be delayed no longer.

You may well ask: "Why direct action? Why sit ins, marches and so forth? Isn't negotiation a better path?" You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent resister may sound rather shocking. But I must confess that I am not afraid of the word "tension." I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half truths to the unfettered realm of creative analysis and objective appraisal, so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood. The purpose of our direct action program is to create a situation so crisis packed that it will inevitably open the door to negotiation. I therefore concur with you in your call for negotiation. Too long has our beloved Southland been bogged down in a tragic effort to live in monologue rather than dialogue.

One of the basic points in your statement is that the action that I and my associates have taken in Birmingham is untimely. Some have asked: "Why didn't you give the new city administration time to act?" The only answer that I can give to this query is that the new Birmingham administration must be prodded about as much as the outgoing one, before it will act. We are sadly mistaken if we feel that the election of Albert Boutwell as mayor will bring the millennium to Birmingham. While Mr. Boutwell is a much more gentle person than Mr. Connor, they are both segregationists, dedicated to maintenance of the status quo. I have hope that Mr. Boutwell will be reasonable enough to see the futility of massive resistance to desegregation. But he will not see this without pressure from devotees of civil rights. My friends, I must say to you that we have not made a single gain in civil rights without determined legal and nonviolent pressure. Lamentably, it is an historical fact that privileged groups seldom give up their privileges voluntarily. Individuals may see the moral light and voluntarily give up their unjust posture; but, as Reinhold Niebuhr has reminded us, groups tend to be more immoral than individuals.

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct action campaign that was "well timed" in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word "Wait!" It rings in the ear of every Negro with piercing familiarity. This "Wait" has almost always meant "Never." We must come to see, with one of our distinguished jurists, that "justice too long delayed is justice denied."

We have waited for more than 340 years for our constitutional and God given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we still creep at horse and buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging darts of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six year old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five year old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of "nobodiness"–then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."

     King expanded upon his understanding of the difference between just and unjust laws:

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an "I it" relationship for an "I thou" relationship and ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and sinful. Paul Tillich has said that sin is separation. Is not segregation an existential expression of man's tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.

Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal. Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state's segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured?

Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest.

I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.

We should never forget that everything Adolf Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal." It was "illegal" to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country's antireligious laws.

     King then expressed two disappointments – disappointment with white moderates and disappointment with the church.  To the moderates, he said:

I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro's great stumbling block in his stride toward freedom is not the White Citizen's Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to "order" than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: "I agree with you in the goal you seek, but I cannot agree with your methods of direct action"; who paternalistically believes he can set the timetable for another man's freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a "more convenient season." Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice and that when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. I had hoped that the white moderate would understand that the present tension in the South is a necessary phase of the transition from an obnoxious negative peace, in which the Negro passively accepted his unjust plight, to a substantive and positive peace, in which all men will respect the dignity and worth of human personality. Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with. Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.

In your statement you assert that our actions, even though peaceful, must be condemned because they precipitate violence. But is this a logical assertion? Isn't this like condemning a robbed man because his possession of money precipitated the evil act of robbery? Isn't this like condemning Socrates because his unswerving commitment to truth and his philosophical inquiries precipitated the act by the misguided populace in which they made him drink hemlock? Isn't this like condemning Jesus because his unique God consciousness and never ceasing devotion to God's will precipitated the evil act of crucifixion? We must come to see that, as the federal courts have consistently affirmed, it is wrong to urge an individual to cease his efforts to gain his basic constitutional rights because the quest may precipitate violence. Society must protect the robbed and punish the robber. I had also hoped that the white moderate would reject the myth concerning time in relation to the struggle for freedom. I have just received a letter from a white brother in Texas. He writes: "All Christians know that the colored people will receive equal rights eventually, but it is possible that you are in too great a religious hurry. It has taken Christianity almost two thousand years to accomplish what it has. The teachings of Christ take time to come to earth." Such an attitude stems from a tragic misconception of time, from the strangely irrational notion that there is something in the very flow of time that will inevitably cure all ills. Actually, time itself is neutral; it can be used either destructively or constructively. More and more I feel that the people of ill will have used time much more effectively than have the people of good will. We will have to repent in this generation not merely for the hateful words and actions of the bad people but for the appalling silence of the good people. Human progress never rolls in on wheels of inevitability; it comes through the tireless efforts of men willing to be co workers with God, and without this hard work, time itself becomes an ally of the forces of social stagnation. We must use time creatively, in the knowledge that the time is always ripe to do right. Now is the time to make real the promise of democracy and transform our pending national elegy into a creative psalm of brotherhood. Now is the time to lift our national policy from the quicksand of racial injustice to the solid rock of human dignity.

     And to the southern churches, he said:

…  I must honestly reiterate that I have been disappointed with the church. I do not say this as one of those negative critics who can always find something wrong with the church. I say this as a minister of the gospel, who loves the church; who was nurtured in its bosom; who has been sustained by its spiritual blessings and who will remain true to it as long as the cord of life shall lengthen.

When I was suddenly catapulted into the leadership of the bus protest in Montgomery, Alabama, a few years ago, I felt we would be supported by the white church. I felt that the white ministers, priests and rabbis of the South would be among our strongest allies. Instead, some have been outright opponents, refusing to understand the freedom movement and misrepresenting its leaders; all too many others have been more cautious than courageous and have remained silent behind the anesthetizing security of stained glass windows.

In spite of my shattered dreams, I came to Birmingham with the hope that the white religious leadership of this community would see the justice of our cause and, with deep moral concern, would serve as the channel through which our just grievances could reach the power structure. I had hoped that each of you would understand. But again I have been disappointed.

I have heard numerous southern religious leaders admonish their worshipers to comply with a desegregation decision because it is the law, but I have longed to hear white ministers declare: "Follow this decree because integration is morally right and because the Negro is your brother." In the midst of blatant injustices inflicted upon the Negro, I have watched white churchmen stand on the sideline and mouth pious irrelevancies and sanctimonious trivialities. In the midst of a mighty struggle to rid our nation of racial and economic injustice, I have heard many ministers say: "Those are social issues, with which the gospel has no real concern." And I have watched many churches commit themselves to a completely other worldly religion which makes a strange, un-Biblical distinction between body and soul, between the sacred and the secular.

I have traveled the length and breadth of Alabama, Mississippi and all the other southern states. On sweltering summer days and crisp autumn mornings I have looked at the South's beautiful churches with their lofty spires pointing heavenward. I have beheld the impressive outlines of her massive religious education buildings. Over and over I have found myself asking: "What kind of people worship here? Who is their God? Where were their voices when the lips of Governor Barnett dripped with words of interposition and nullification? Where were they when Governor Wallace gave a clarion call for defiance and hatred? Where were their voices of support when bruised and weary Negro men and women decided to rise from the dark dungeons of complacency to the bright hills of creative protest?"

Yes, these questions are still in my mind. In deep disappointment I have wept over the laxity of the church. But be assured that my tears have been tears of love. There can be no deep disappointment where there is not deep love. Yes, I love the church. How could I do otherwise? I am in the rather unique position of being the son, the grandson and the great grandson of preachers. Yes, I see the church as the body of Christ. But, oh! How we have blemished and scarred that body through social neglect and through fear of being nonconformists.

     King closed with these words:

Never before have I written so long a letter. I'm afraid it is much too long to take your precious time. I can assure you that it would have been much shorter if I had been writing from a comfortable desk, but what else can one do when he is alone in a narrow jail cell, other than write long letters, think long thoughts and pray long prayers?

If I have said anything in this letter that overstates the truth and indicates an unreasonable impatience, I beg you to forgive me. If I have said anything that understates the truth and indicates my having a patience that allows me to settle for anything less than brotherhood, I beg God to forgive me.

I hope this letter finds you strong in the faith. I also hope that circumstances will soon make it possible for me to meet each of you, not as an integrationist or a civil-rights leader but as a fellow clergyman and a Christian brother. Let us all hope that the dark clouds of racial prejudice will soon pass away and the deep fog of misunderstanding will be lifted from our fear drenched communities, and in some not too distant tomorrow the radiant stars of love and brotherhood will shine over our great nation with all their scintillating beauty.

     The website writespirit.net has stored a number of Dr. King's other speeches, including the Nobel Prize Acceptance Speech, I Have A Dream, Where Do We Go From Here, Loving Your Enemies, Our God Is Marching On, Lincoln Memorial Address, and Beyond Vietnam. 

     Yesterday, in a speech at Vermont Avenue Baptist Church in Washington, D.C., President Barack Obama recalled that as a 27-year-old preacher, Dr. King had delivered a sermon at that same church on December 6, 1956, entitled "The Challenge of a New Age."   The President said:

On Thursday, December 6, 1956. And before Dr. King had pointed us to the mountaintop, before he told us about his dream in front of the Lincoln Memorial, King came here, as a 27-year-old preacher, to speak on what he called "The Challenge of a New Age." "The Challenge of a New Age." It was a period of triumph, but also uncertainty, for Dr. King and his followers — because just weeks earlier, the Supreme Court had ordered the desegregation of Montgomery's buses, a hard-wrought, hard-fought victory that would put an end to the 381-day historic boycott down in Montgomery, Alabama.

And yet, as Dr. King rose to take that pulpit, the future still seemed daunting. It wasn't clear what would come next for the movement that Dr. King led. It wasn't clear how we were going to reach the Promised Land. Because segregation was still rife; lynchings still a fact. Yes, the Supreme Court had ruled not only on the Montgomery buses, but also on Brown v. Board of Education. And yet that ruling was defied throughout the South — by schools and by states; they ignored it with impunity. And here in the nation's capital, the federal government had yet to fully align itself with the laws on its books and the ideals of its founding.

So it's not hard for us, then, to imagine that moment. We can imagine folks coming to this church, happy about the boycott being over. We can also imagine them, though, coming here concerned about their future, sometimes second-guessing strategy, maybe fighting off some creeping doubts, perhaps despairing about whether the movement in which they had placed so many of their hopes — a movement in which they believed so deeply — could actually deliver on its promise.

So here we are, more than half a century later, once again facing the challenges of a new age. Here we are, once more marching toward an unknown future, what I call the Joshua generation to their Moses generation — the great inheritors of progress paid for with sweat and blood, and sometimes life itself.

     The President referred to the leaders and participants of the civil rights movement as "the Moses generation" and to the people of the present-day as "the Joshua generation," and compared the challenges we face to the challenges of that time:

Unemployment is at its highest level in more than a quarter of a century. Nowhere is it higher than the African American community. Poverty is on the rise. Home ownership is slipping. Beyond our shores, our sons and daughters are fighting two wars. Closer to home, our Haitian brothers and sisters are in desperate need. Bruised, battered, many people are legitimately feeling doubt, even despair, about the future. Like those who came to this church on that Thursday in 1956, folks are wondering, where do we go from here?

I understand those feelings. I understand the frustration and sometimes anger that so many folks feel as they struggle to stay afloat. I get letters from folks around the country every day; I read 10 a night out of the 40,000 that we receive. And there are stories of hardship and desperation, in some cases, pleading for help: I need a job. I'm about to lose my home. I don't have health care — it's about to cause my family to be bankrupt. Sometimes you get letters from children: My mama or my daddy have lost their jobs, is there something you can do to help? Ten letters like that a day we read.

So, yes, we're passing through a hard winter. It's the hardest in some time. But let's always remember that, as a people, the American people, we've weathered some hard winters before. This country was founded during some harsh winters. The fishermen, the laborers, the craftsmen who made camp at Valley Forge — they weathered a hard winter. The slaves and the freedmen who rode an underground railroad, seeking the light of justice under the cover of night — they weathered a hard winter. The seamstress whose feet were tired, the pastor whose voice echoes through the ages — they weathered some hard winters. It was for them, as it is for us, difficult, in the dead of winter, to sometimes see spring coming. They, too, sometimes felt their hopes deflate. And yet, each season, the frost melts, the cold recedes, the sun reappears. So it was for earlier generations and so it will be for us.

What we need to do is to just ask what lessons we can learn from those earlier generations about how they sustained themselves during those hard winters, how they persevered and prevailed. Let us in this Joshua generation learn how that Moses generation overcame.

     Dr. King was an extraordinary man, an American hero.  One of the most remarkable facts about his life, and perhaps the most difficult to accept, is that he was taken from us at the age of only 39.  Had he lived he would be only 82 years old today.  How different would our country be – how different would we be – if we had had the advantage of his guidance and leadership for the past 42 years?

     In this final installment on this pending case I discuss whether or not a religious organization like CLS has a constitutional right to discriminate that is superior to the rights that other advocacy groups might have.

     In five previous posts I have introduced the pending Supreme Court case of Christian Legal Society v. Martinez, laid out the breadth of constitutional issues that are implicated, and discussed CLS's First Amendent claims under the doctrines of equal access to a public forum, expressive association, and the free exercise of religion.  In this sixth post I suggest that CLS may try to argue that, as a religious organization, the discrimination that it practices against gays, lesbians, and people of other faiths is on a higher plane and should receive more constitutional protection than discrimination by other, non-religious organizations.

    The problem that CLS faces is that Hastings Law School has a legitimate and compelling reason not to recognize student organizations that discriminate on the basis of race, religion, gender, national origin, disability, and sexual orientation.  The law school is attempting to instill in its students principles of inclusiveness and tolerance – and the law school has that right under the First Amendment.  For example, no court would ever require the law school to confer official recognition a group that wished to call itself the "Hastings Law School Chapter of the KKK," for example, nor would the law school be required to give such a group access to student activity fee funding for a cross-burning.

     The obvious strategy would be for CLS to persuade the Court that the kind of discrimination that is practiced by religious organizations can be distinguished from the kind of discrimination that hate groups like the KKK or the Nazi Party engage in.  And at first blush that would seem easy to do.  We certainly do not regard our churches or religious societies in the same moral light as hate groups. 

     In support of this distinction the CLS can point to the fact that the law routinely exempts religious organizations from the operation of the civil rights laws.  If this were not the case, it would be unlawful for religious institutions to engage in gender discrimination, and churches, synagogues, and mosques could be compelled to employ women as clergy.  This exemption exists for very good reason – the civil rights laws are in some instances in conflict with religious doctrine, and to enforce these laws against religious institutions would infringe upon those institutions' right to the free exercise of religion.  Moreover, in the process of enforcing laws against employment discrimination the government would almost certainly become "excessively entangled" in the affairs of the religious body, thus violating the principle of separation of church and state that the Establishment Clause stands for.

     On closer inspection, however, there are difficulties with this argument.  While it is true that religious institutions enjoy immunity from civil rights laws that prohibit discrimination, so, too, do social, fraternal, and advocacy groups, insofar as those laws would interfere with the organization's rights to expressive association.  The law may not require the Lutheran church to employ a Methodist pastor any more than it may require the Democratic Party to allow Republicans to vote in its primary elections (California Democratic Party v. Jones (2000)), or require the Boy Scouts to employ a gay man as a Scoutmaster (Boy Scouts of America v. Dale (2000)).  Even the KKK has the right, under teh First Amendment, to exclude people of color from becoming members.  Religious institutions exercising the right to freedom of religion in their discriminatory practices are treated no differently than secular organizations asserting their right to freedom of speech.

     Furthermore, there are organizations that function both as religions and as hate groups.  Christian Identity, for example, is a church instituted upon principles of racism and anti-semitism that according to the Anti-Defamation League has penetrated many right-wing extremist movements in America.  Terrorist organizations such as al-Qaeda obviously draw inspiration from religious fanaticism.  And, until 1978, the Mormon church discriminated on the basis of race.  In my opinion there is no principled basis for distinguishing religiously-based acts of discrimination from those that arise from secular motives.

     If CLS raises this line of argument, and if the Court chooses to discuss it, it will be fascinating to witness.

Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.

     The difficulty of this case stems from the number of constitutional doctrines and principles which are intertwined, a tangled skein of general rules and fundamental values.

     Yesterday's post introduces the case.  The Christian Legal Society is a student organization at Hastings Law School that in 2004 adopted rules requiring that in order to become members of the organization students must take an oath expressing their adherence to specific religious beliefs.  As construed by the CLS, the oath and the duty to conform to it would exclude sexually active gay and lesbian students.  The law school refuses to recognize student organizations that discriminate on the basis of religion or sexual orientation, and accordingly the law school withdrew recognition of CLS, thus depriving the organization of the right to use the name and logo of the institution, access to certain facilities at the law school, access to e-mail lists of students, and funding.

     This case implicates a virtual blizzard of constitutional principles.  For CLS, three primary constitutional rights are involved:

1.  Freedom of Speech and the Right of Expressive Association

     The Christian Legal Society has the right to express its views, not only through advocacy, but by means of its membership policies.  This right – called the right of "expressive association" – makes it unconstitutional for the government to enforce civil rights laws against such organizations, at least in settings where the organizations is acting in a wholly private capacity and not performing some governmental function, such as conducting a primary election for elective office.

     The principal case protecting the rights of CLS in this case is Boy Scouts of America v. Dale, in which the State of New Jersey had charged the Boy Scouts with violating the state's nondiscrimination law because it had fired a scoutmaster because he was gay.  The Supreme Court ruled that enforcement of the law violated the Boy Scouts' First Amendment right to stand in opposition to homosexuality – and that this right would be infringed if the BSA was required to employ gays or lesbians as scoutmasters.

2.  The Free Exercise of Religion

    The CLS's right to discriminate on the basis of sexual orientation is also based upon its rights under the Free Exercise Clause of the First Amendment.  Religious bodies may not be forced to admit members or hire clergy who are not of the same faith, or who are not obedient to the organization's code of conduct. 

3.  Equal Access

     When government institutions such as schools and colleges open up their facilities to the community, they must provide access in a "viewpoint neutral" manner – that is, the government must not attempt to elevate one point of view over another.  The Supreme Court has specifically held that religious groups are entitled to the same access to public facilities as secular organizations. 

     However, this case is complicated by the fact that CLS is not simply seeking access to Hastings Law School – it is seeking official recognition and funding.  A university – even a public university – also has the rights and responsibilities under the Constitution. 

1.  Government speech

     Government institutions, no less than private parties, enjoy freedom of speech.  By prohibiting recognized student organizations from discriminating Hastings Law School is attempting to inculcate tolerance and civic responsibility among its students.  The law school's First Amendment rights are enhanced by the fact that its recognition of a student organization confers upon the organization the right to use the name and logo of the law school, giving the impression that the organization is speaking for the law school – and the law school does not wish to endorse discriminatory views.

2.  Government subsidization of private speech

      Not only may government institutions speak, they may also elect to subsidize the views of private parties with whom they agree.  Just as the National Endowment for the Arts may decide to fund one form or art or music over another – or "decent" kinds of performances instead of "indecent" ones – universities may choose to subsidize some forms of expression and not others.  Essentially, this line of cases (like the abortion funding cases) stands for the principle that while citizens may have a constitutional right to freedom of speech, they do not have a constitutional right to the assistance of the government in expressing themselves.

3.  Establishment Clause

     Under the First Amendment's that the government shall make no law "respecting an establishment of religion," the Supreme Court has ordered that the government must act in a neutral fashion towards religion.  The government may neither advance religion or hinder it.  The problem, of course, lies in defining what constitutes the "neutral" position.

4.  The power to regulate the conduct of students

     Public educational institutions have the authority to regulate student conduct to a far greater degree than they may regulate student expression.  One of the difficult questions in this case is whether through its nondiscrimination requirement for recognized student organizations the law school is attempting to prohibit discriminatory conduct, or whether it is attempting to regulate the beliefs and expressions of students.

     I will continue the analysis in tomorrow's post.

Visit Professor Huhn's website  for information and links to sources – both timely and historical – on Constitutional Law.

Spring training got into full swing this week.  For most of my adult life, the return of baseball was like a ray of sunlight breaking through grey skies because I love to watch and score the game.  But since I moved to Cleveland four years ago, the return of baseball has left me tense–dealing with the conflict between my love of the game and the image of Chief Wahoo.  At times like these, I am repeatedly reminded of a poster I saw in Sports Illustrated when I was in grade school that had pictures of fictitious and patently offensive mascots for teams named the "New York Negroes" and the "Boston Jews," along with those of the Cleveland Indians and Washington Redskins.  At the bottom of the poster it read: "If any one of these is offensive to you, then they all should be."  I have yet to hear a good explanation for why that statement is not correct.

None of which is to say that I don't sympathize with fans of the Indians who get defensive on this point.  There is the simple conscious or unconscious equation that: (1) I've been wearing Chief Wahoo gear my whole life; (2) I'm not a racist; so, (3) Chief Wahoo can't be a racist image.  There is also the sense that there should be one place in the world where we should be free from the wagging finger of the "political correctness police."  For many, that "place" is sports.  We work hard, struggle to make end meets and be good people–is it really too much to ask that we be allowed to watch our home team in peace?  I can sympathize with both these sentiments.  But my short response to them is that we are called to be better.  One of the great things about humans is that they have the capacity to reconsider deeply held beliefs.  And, when the time is right, they can stop defending the indefensible.

And speaking of being better, I think I know just where to start.  When I think of Cleveland and northeast Ohio I think of a place where people suit up and show up for work and greet you with a smile in spite of high crime, foreclosures, and winters that would make Mr. Freeze look for warmer climes.  There is a spirit here that refuses to give up even in the face of the cruelest jokes or harshest criticisms.  I am currently in my fourth year at the University of Akron School of Law, and I can tell you with complete conviction that every person on our organizational chart is committed to being of maximum service to our students, the law school, and the communities–local, national, and global–that we are connected to.  There really is a "Spirit of Ohio" and I would love to see the team that plays the most games in Cleveland each year have a name and mascot that reflect that spirit–as opposed to one that leads to children holding signs that say, "I am not a mascot."

Which leads me to the subject of this post: Does Chief Wahoo deserve an antitrust exemption?  Professor Mitchell Nathanson recently posted a paper that,

examines the relationship between Major League Baseball (MLB) and the law and discusses how it has evolved that MLB has become unofficially exempt from federal law on a wide range of issues due to its unique status within American society. Although its antitrust exemption is well-known, MLB has, in practice, not been subject to the forces of federal law in many other contexts as well, setting it apart from most other corporations and organizations – even other professional sports leagues such as the NFL, NHL and NBA. . . . .  From its inception in 1876 to the present, MLB has been, in effect, an extra-judicial entity, a society unto itself, answerable to no one in all but the most extreme circumstances.

This made me wonder whether the United States government should be bestowing such benefits on an organization that profits from the use of a racist image like Chief Wahoo.  To believe that it shouldn't does not even require you to believe that Chief Wahoo is in fact a racist image.  You would just have to accept that there is a significant amount of controversy surrounding the image and that the federal government shouldn't be "taking sides" in the controversy.  (Prof. Nathanson argues that the government's preferential treatment of major league baseball is rooted in judicial and legislative acceptance of the "baseball creed," which states that "baseball contribute[s] to individual and public welfare by 'building manliness, character, and an ethic of success.'")  You also would not have to worry about infringing on the individual liberty of MLB and the Cleveland Indians because you would not be prohibiting the use of Chief Wahoo as a mascot, you would merely be declining to bestow special federal treatment so long as they chose to keep the Chief.  This is not unlike Title IX, which does not prohibit sex discrimination in education–it simply ties the receipt of federal funding to compliance.

Joe Posnanski, sports columnist and former Clevelander, put it like this:

Wahoo is an inherently racist symbol.  Nobody could really deny this.  Nobody could look at that grinning mug and say, "No, it's really a flattering portrayal of Native Americans, who were conquered, nearly wiped off the planet by our ancestors and then forced to live on reservations."

….

The only reason Chief Wahoo is around is because Native Americans don't have a strong enough voice in this country to put a stop to it.  When Native Americans protested at the 1997 World Series, they were mostly laughed at.  Three were arrested.  Is this really the kind of country we want to be?  And for what?  To stand up for our inherent rights to enjoy a racist sports logo?

I love Cleveland. I love the Indians and I even love Wahoo in a weird way because it is such a part of my childhood.  But it is not just time to get rid of Wahoo, it is way, way past time.  I don't think this is the biggest problem facing the world, or even the 54,993,287th biggest problem facing the world.  I don't care about political correctness either.  No.  It's just wrong.  Very wrong.  Get rid of it.  The fewer wrong things in the world, better.

At a time when there is much wailing and gnashing of teeth surrounding the message our children are getting from baseball regarding steroids, maybe we can also reconsider the message of Chief Wahoo.  After all, newly appointed Attorney General Eric Holder recently "described the United States … as a nation of cowards on matters of race, saying most Americans avoid discussing unresolved racial issues," and "urged people of all races to use Black History Month as a chance for frank talk about racial matters."

So, consider yourself urged.

P.S.–In the interest of full disclosure: I am a Yankees fan.  I realize some of you may dismiss everything I've written to this point on that basis alone.  But I hope you won't.

The evidence

Yes, it's the Associated Press v. Shepard Fairey. Turns out that the famous poster by artist Shepard Fairey (is that a great name or what?) was confessedly based on a photograph by freelance photographer Mannie Garcia.  The AP is claiming that the poster violates their copyright in the photo.

AP made the headlines by making the claim without actually filing a lawsuit. Now Fairey has sued AP preemptively, trying to get a court to determine that his use and alteration of the photo came under the "fair use" exception to the general prohibition on copying protected work. Predictably, at least some photographers think the poster definitely infringes the photographer's rights. Others think the poster is sufficiently different from the photo to make it a fair use. Various opinions here and here.

Of course, the whole claim is premised on AP owning the rights to the photo, which many have assumed is true. However, now it seems that the photographer is claiming he owns the rights, not AP. Stay tuned…

On Wednesday, the military’s highest court on war crimes prosecutions gave the Obama Administration a requested 120-day delay of a pending case to allow a new study of the fate of prisoners at Guantanamo Bay.

Yesterday, President Obama signed his first legislative action, endorsing the Fair Pay Act intended to give workers more time to sue in court for pay discrimination based on sex or race.  The new law passed by Congress, the “Lilly Ledbetter Fair Pay Act” reverses the Supreme Court decision in Ledbetter v. Goodyear which held that the 180-day statute of limitations for pay discrimination cases begins to run from the time of the first initial pay decision.  That rule meant that Lilly Ledbetter, a manager at a Goodyear plant in Alabama for 19 years, could not sue for her unequal pay that continued up until she filed suit, but which first began 19 years ago.  The Court was sharply divided, with Justice Alito writing the opinion for the conservative majority of 5.  Justice Ginsburg wrote the dissent, noting that that such pay disparities are “often hidden from sight.”  In signing the new legislation, the President cited Census Bureau figures demonstrating that women still earn about 78 cents for every dollar men earn for doing equivalent jobs, and the disparity is even greater for women of color.  Michelle Obama’s first official First Lady function was a luncheon yesterday for Ledbetter as the figurehead of the equal pay movement: “She knew unfairness when she saw it, and was willing to do something about it because it was the right thing to do—plain and simple.”

Goodyear issued a statement vehemently denying that it had discriminated against Lilly Ledbetter, saying that she was paid the same as similar male workers at the plant.  They criticized Ledbetter for ignoring Goodyear’s policy of reporting concerns about discrimination and suing only after she retired.  Ledbetter claims she did not know about the pay discrimination until then, which she discovered inadvertently when a co-worker’s paycheck ended up by mistake in her pay envelope.  Ledbetter was making $3,727 per month, while men doing the same job were paid $4,286 to $5,236 per month. Ledbetter filed a complaint with the EEOC and was then assigned to lift heavy tires, which she felt was retribution.  A jury originally awarded her $3.3million, which was later reduced to $300,000.  Opponents of the Fair Pay Act claim that the law will encourage frivolous lawsuits.  However, the Fair Pay Act simply reinstates the longstanding time rule that was in place prior to the Supreme Court’s 2007 decision in Ledbetter.  Ledbetter herself will not be able to benefit from the new law due to the Supreme Court’s conclusive decision in her case and her retirement (and thus cessation of pay) from Goodyear. 

     On November 4 California voters adopted Proposition 8, an amendment to their state constitution which simply states, "Only marriage between a man and a woman is valid or recognized in California."  Opponents of the measure contend that it was adopted in an unconstitutional manner because the California Constitution provides that while "amendments" to the constitution may be adopted by a majority of the people, "revisions" must also be approved by two-thirds of each house of the state legislature.  It is not clear, however, whether Proposition 8 constitutes a revision or an amendment to the California constitution.  Furthermore, insofar as it refuses to recognize same-sex marriages performed in other states, Proposition 8 could be challenged on the ground that it violates the "Full Faith and Credit Clause" of the Constitution which requires the States to give "full faith and credit" to the laws and judicial proceedings of other states, or it could be challenged on the ground that by denying the same marriage rights to gays and lesbians as it does to hetersexual couples the amendment violates the Equal Protection Clause of the Constitution of the United States.  However, constitutional scholar Larry Tribe has expressed the opinion that neither of these challenges is likely to be successful at the present time.  But there is one other constitutional argument that opponents of the measure might raise – and it is one that I think would be likely to work, in light of the current makeup of the United States Supreme Court – and that is a First Amendment challenge to Proposition 8.

     I do not mean to suggest that Proposition 8 directly affects Freedom of Expression or Freedom of Religion.  Instead, I would argue that Proposition 8 takes away the equal rights of gays and lesbians to participate in the political process in order to gain the right to marry.  Heterosexual couples are free to petition the legislature to recognize their marriages as valid.  After the adoption of Proposition 8, gays and lesbians may not.  Propostion 8 deprives gays and lesbians of the opportunity to persuade the California legislature to allow them to enter into the institution of marriage. 

     There is precedent that supports the argument that the people of a state may not enact a state constitutional amendment that denies gays and lesbians the right to seek the same rights from the state legislature that other people have.  In Romer v. Evans (1996) the Supreme Court ruled that an amendment to the Colorado Constitutional was unconstitutional because it denied gays and lesbians certain political rights.  The Colorado measure was adopted after several cities and state agencies adopted measures prohibiting discrimination against gays and lesbians in employment, housing, education, and health care.  In reaction to these reforms, the people of the State of Colorado adopted Amendment 2, a state constitutional amendment which prohibited cities, state agencies, and even the state legislature from enacting nondiscrimination legislation.  The United States Supreme Court struck down Amendment 2 on the ground that a state constitution may not make it more difficult for one group of people to obtain from the legislature the same rights as another group of people.  In the course of his opinion for the 6-3 majority, Justice Anthony Kennedy wrote:

The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.

     Justice Kennedy explained how gays and lesbians were being treated differently:

Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State Constitution ….

     Justice Kennedy articulated the following general principle in defense of the equal right to seek protection under the political process:

A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.

      The foregoing argument does not contend that gays and lesbians have a constitutional right to marry.  It simply states that they have the equal First Amendment right to gain the right to marry through the political process.  If they can persuade a majority of the state legislature to grant them the same privilege as other people have to enter into marriage, then they must be permitted to marry, and the people of the state may not prevent this through the adoption of a state constitutional amendment.

     The use of state constitutional amendments to prohibit state legislatures from granting equal rights is an old one.  After the Virginia legislature debated abolishing slavery in January and February of 1832, the southern states adopted amendments to their state constitutions making it impossible for their state legislatures to enact laws abolishing slavery or even allowing voluntary emancipation or manumission of slaves.  The purpose and effect of these state constitutional amendments was to make it impossible for the southern states to resolve the question of slavery through the political process.  In reaction to these state constitutional amendments, Abraham Lincoln delivered his famous "Hundred Keys" speech of June 26, 1857.  Contrasting the generation of the Revolution, who had considered slavery to be a moral wrong and a social evil, to the contemporary generation which had enacted state constitutional amendments protecting the institution of slavery, Lincoln stated: 

In those days, as I understand, masters could, at their own pleasure, emancipate their slaves; but since then, such legal restraints have been made upon emancipation, as to amount almost to prohibition. In those days, Legislatures held the unquestioned power to abolish slavery in their respective States; but now it is becoming quite fashionable for State Constitutions to withhold that power from the Legislatures. In those days, by common consent, the spread of the black man's bondage to new countries was prohibited; but now, Congress decides that it will not continue the prohibition, and the Supreme Court decides that it could not if it would. In those days, our Declaration of Independence was held sacred by all, and thought to include all; but now, to aid in making the bondage of the negro universal and eternal, it is assailed, and sneered at, and construed, and hawked at, and torn, till, if its framers could rise from their graves, they could not at all recognize it. All the powers of earth seem rapidly combining against him. Mammon is after him; ambition follows, and philosophy follows, and the Theology of the day is fast joining the cry. They have him in his prison house; they have searched his person, and left no prying instrument with him. One after another they have closed the heavy iron doors upon him, and now they have him, as it were, bolted in with a lock of a hundred keys, which can never be unlocked without the concurrence of every key; the keys in the hands of a hundred different men, and they scattered to a hundred different and distant places; and they stand musing as to what invention, in all the dominions of mind and matter, can be produced to make the impossibility of his escape more complete than it is.

     The institution of slavery that Lincoln fought is not comparable to the denial of marriage to gays and lesbians by our society,  but the principle that Lincoln and Justice Kennedy so eloquently articulated is the same.  State constitutional amendments should not be used to prevent any group of people from seeking the same rights as other people through the political process.

I was a poll observer on election day. I saw:

One poll worker who called everybody "baby," as in: "Have you ever voted before, baby? Well, sweetie, you just fill out the bubble for the person you want, OK baby? But don't write anybody's name down there where it says 'write-in,' baby, because then you're voting twice. OK, baby?"

Lots of people who filled in the bubble and then also wrote in Obama and Biden. The machine spits out their ballot and they have to start all over with a new ballot.

One polite young man who had voted in the primary but was no longer on the rolls. We called the Board of Elections and they had canceled his registration due to a felony conviction on July 1. No notice, no opportunity to re-register. He is in fact eligible to vote as long as he is not incarcerated.

One Hispanic couple who didn't have any idea they had to register in advance. They couldn't vote.

Many people who were at the wrong precinct. I think we caught most of them because we had internet access at the library where this polling location was, and between my laptop and two other outside volunteers, we were able to find where people were supposed to go vote, rather than having them cast a provisional ballot at the wrong precinct, which would not have been valid.

One person who had no ID, only the last four digits of her Social Security number, which should have entitled her to vote provisionally. I had to rather firmly persuade the Presiding Poll Judge not to check the box that says she has to come back to confirm her identity within 10 days in order for her vote to count.

Poll workers very prone to just issue a provisional ballot at the drop of a hat–which are less likely to get counted, due to technical errors in filling out the required form.

A half-hour to 45-minute wait right when the polls opened at 6:30, but no lines at all at the usual rush time, 5 to 7:30 close. We were worried about turnout. The tentative summary currently shows that this precinct had 108 percent turnout, which can't be right.

Lots of first-time voters.

A friendly, helpful environment, even with the Republican observer there. (In Ohio, we have bipartisan rather than nonpartisan observers–I was appointed by Barack!)

Summit County's 57-40 margin and 45,000 vote edge contributed greatly to Ohio's 200,000 vote margin for Obama.

     The fifth and final type of argument under the Constitution is a policy argument.  Policy arguments are fundamentally different from arguments based upon text, intent, precedent, or tradition.  The four standard types of arguments are grounded in the past, while policy arguments look to the future.

     Policy arguments have an inherently different structure than the other types of legal arguments.  Every policy argument consists of two steps – a predictive statement and an evaluative judgment.  First, you must predict what the consequences of interpreting the Constitution one way or another will be, and second, you must evaluate whether or not those consequences are or are not consistent with the underlying values and purposes that the Constitution serves.

     Policy arguments based in law are inherently different from policy arguments based on politics in the following sense.  A member of the legislature is free to select any goal whatsoever and to adopt any law that will tend to achieve that goal.  A judge, on the other hand, must identify what the purposes of the law are in order to apply the law in a manner that is consistent with those purposes.

     Policy arguments entered our law relatively slowly.  At the end of the 19th Century and beginning of the 20th Century leading American judges such as Oliver Wendell Holmes, Louis Brandeis, Learned Hand, and Benjamin Nathan Cardozo led the way in a movement called "Legal Realism."  In 1908 Louis Brandeis submitted a brief to the United States Supreme Court in support of a state law establishing minimum wages and maximum hours for women workers.  The brief consisted of two pages of standard legal argumentation and over ninety pages of summaries of social science studies demonstrating the devestating effect of long hours and low pay on women and their families.  This type of brief is now referred to as a "Brandeis brief," and it is embematic of the new method of legal analysis that entered our law at that time.  In explanation of his style of legal argumentation, Brandeis wrote:

     "In the past the courts have reached their conclusions largely deductively from preconceived notions and precedents.  The method I have tried to employ in arguing cases before them has been inductive, reasoning from the facts."

     Benjamin Cardozo rose through the ranks of the New York State courts and became famous for his many opinions that developed and modernized the principles of the common law of torts, contracts, and property.  His opinions fill the casebooks and are part of the standard curriculum in American law schools.  Typically Cardozo would apply precedent (previously decided cases) to new problems that were arising in contemporary society, and he did so by indentifying the reasons why a previous court had developed a particular rule of law.  Very often judicial precedent in a field of law was based upon two or more competing or even conflicting policy objectives.  After Cardozo had identified all of the relevant values and policies that the law was intended to serve, he would balance those values against each other in the context of the particular case.  Through this weighing and balancing process Cardozo would draw a conclusion as to how a particular law should be interpreted and applied in the case before him.  Cardozo said:

"The final cause of law is the welfare of society.  The rule that misses its aim cannot permanently justify its existence.  …  Logic and history and custom have their place.  We will shape the law to conform to them when we may, but only within bounds.  The end which the law serves will dominate them all."

     In most cases text, intent, precedent, and tradition are consistent with each other and are sufficient to guide us to the correct answer as to what the law is.  But there are situations where text, intent, precedent, and tradition are inadequate, by themselves, to answer difficult questions of law.  This occurs in cases where there is a conflict among the different types of legal arguments, or where no single type of argument yields a clear answer because the situation before the court is unprecedented.  This happens occasionally in every field of law – it happens frequently in constitutional law.

     Why is this?  Why is the interpretation of the Constitution so dependent upon policy arguments as opposed to other fields of law such as securities regulation or commercial transactions?  A principal reason is that many of the most important provisions of the Constitution are not specific rules but rather are broad concepts.  All Americans would agree that the Constitution was intended to protect our liberty, but we legitimately disagree about the specific meaning of the term "liberty" in any particular case.  Certainly our understanding of "equality" has changed over time as we have gradually learned more and more about human potential.  "Fairness" is also an evolving concept, as new and different procedures have to be adopted to ensure that hearings and trials are fundamentally fair and rational.

     Nor is the intent of the framers always a reliable guide.  To be sure, they were devoted to liberty and (after the Civil War) to equality, but it is not at all clear that in applying those concepts they wanted us to recreate the same society that they had.  Rather, it seems more likely that they articulated these ideals as guides for us to strive for, to live up to, and to reinterpret and reapply to the challenges of every generation.

     Liberty, for example, may be understood as a person's right to make decisions for himself or herself at least in matters that are intensely personal such as whom to love, whom to live with, whom to marry, whether to have children, how to raise those children, and whether to accept or refuse lifesaving medical treatment.  In short, the right to privacy.  Liberty also includes freedom of speech, freedom of the press, and freedom of religion, not because these are traditional rights, but because these principles protect the dignity of the individual and promote intellectual and spiritual development. 

     Equality may be phrased as the principle that the government may not treat a group of people differently from other groups unless the group is in fact different in the relevant context.  If you accept this principle, then it is not sufficient to say (as Justice Scalia would) that certain groups may be treated differently from other groups simply because they have traditionally been treated differently or even (as Judge Bork would) because the framers treated them differently.  In drafting and adopting the Equal Protection Clause the framers of the 14th Amendment did not expect us to hold onto the society that they had at that time – they expected us to live up to the ideal that their generation and the Revolutionary generation fought and died for – that all persons are created equal.  They wanted us to stand upon their shoulders and to see a little further than they did.

     There are five types of legal argument.  Each type of argument is a legitimate form of legal reasoning.  In hard cases the different types of arguments give you different answers.  We see this very clearly in constitutional law, particularly in cases where groups or individuals are claiming rights they have been denied in the past, such as interracial couples or gay and lesbian couples who wish to marry.

     We are all Americans and we are all devoted to the Constitution and to the principles of limited government and individual rights.  We have different understandings of those concepts because there are legitimate methods of reasoning that yield different answers to the questions of liberty, equality, and fairness that constantly arise.

Wilson Huhn is a Professor of Constitutional Law at The University of Akron School of Law and the author of the book The Five Types of Legal Argument.  This is the eighth and last in a series of essays describing why people disagree about the meaning of the Constitution.  The next series of essays will cover the constitutional cases that the Supreme Court will be deciding during the coming year.

Ohio looks to be an important swing state (again!) in the upcoming Presidential elections. But you might not have realized that legal issues may determine the outcome. Efforts to settle these issues in advance seem to have failed. Here are a few of the battles currently being fought:

Five-Day Window: Republicans have sued to try to prevent voters from registering to vote (must be at least 30 days before the election) and then, on the same day, voting by absentee ballot (may be done up to 35 days before the election) during the 5-day window when they are eligible to do both. They claim to be concerned about vote fraud.

Vote Caging: Democrats are seeking to end the practice in some counties of eliminating or challenging the registration status of some voters based on mailed notices having been returned undelivered. They claim that typos, students away at college, and military personnel may have their votes unfairly taken away.

Meanwhile, in Cincinnati, voters who responded to an erroneous absentee ballot application mailed out by the McCain campaign may find their applications ruled invalid by Democratic Secretary of State Jennifer Brunner, although she has offered an easy way for voters to correct their applications. Pho has the statutory language.

Wouldn't it be nice if we could just focus on which candidates were supported by more people?

     Between 1937 and 1943 President Franklin D. Roosevelt appointed eight justices to the Supreme Court. These justices, who included Hugo Black, Felix Frankfurter, William Douglas, and Robert Jackson, changed the meaning of the Constitution. For the first time in American history the Court began to systematically protect the rights of individuals and minority groups against government action. In particular, the Supreme Court established doctrine protecting the separation of powers, freedom of speech, freedom of religion, racial equality, and the right to privacy. In recent years, however, the legacy of the Roosevelt Court has come under attack, and the fundamental constitutional framework established by the Roosevelt justices may be in danger of unraveling.    

     For over eleven years between 1994 and 2005 the make-up of the Supreme Court remained stable, but during his second term in office President George W. Bush had the opportunity to appoint John Roberts and Samuel Alito to the Supreme Court. These two conservative justices have moved the Court closer to a tipping point than it has been in over seventy years. The 2008 Presidential election, in which the candidates offer the American people starkly contrasting social, economic, and political viewpoints, will have a substantial effect on how the Constitution will be interpreted. The following questions may be determined by the outcome of this election:

1. Will the Supreme Court overrule Roe v. Wade and allow the government to outlaw abortion at all stages of pregnancy?

2. Will the Court overrule Lawrence v. Texas and allow the government to imprison people for engaging in same-sex intercourse?

3. Will the Court reject the Right to Privacy altogether, including the right to refuse lifesaving medical treatment (commonly called the "right to die")?

4. Will the Court overrule United States v. Virginia, which ordered women to be admitted to V.M.I. on an equal basis with men?

5. In Equal Protection cases generally, will the Court adopt a standard based upon tradition rather than upon a realistic assessment of human potential?

6. Will the Court overrule Grutter v. Bollinger and declare affirmative action to be unconstitutional in virtually all circumstances?

7. Will the Court overrule McConnell v. F.E.C. and to strike down all laws that limit the amount of money that people may contribute to political campaigns?

8. Will the Court overrule McCreary County v. A.C.L.U. and instead find that it is constitutional for the government to post the Ten Commandments in courthouses?

9. In general, will the Court reject the principle that the government must be neutral towards religion, and instead adopt the rule that the government is free to endorse religion?

10. Will the Court decide that the Establishment Clause does not apply to the states, thereby allowing the states to establish official churches?

11. Will the Court overrule Boumediene v. Bush and instead rule that prisoners who are held at Guantanamo Bay are not entitled to habeas corpus?

     On most of these issues the Supreme Court is closely divided, and the addition of one or more justices will determine the outcome. Some people criticize the fact that a Presidential election can determine how the Constitution is interpreted. They contend that the meaning of the Constitution should remain static until it is amended, as if the Constitution were a statute or an administrative regulation. There is merit to this argument, but as a practical matter the meaning of the Constitution is dependent upon the will of the American people as expressed in national elections.

     If you feel strongly about what the meaning of the Constitution should be on these or other issues, then you should be sure to vote on November 4.

Wilson Huhn is a Professor of Constitutional Law at the University of Akron School of Law.  This is the last of a series of ten essays regarding how the 2008 Presidential election may affect the interpretation of the Constitution.

     The focus of one of the starkest ideological divisions on the Supreme Court and an area of law that may undergo dramatic change as a result of the 2008 presidential election is the interpretation of the Religion Clauses of the First Amendment.     

     There were battles over freedom of religion from the very earliest times in our nation's history. In the 1630s the Puritans established a religious government in the Massachusetts Bay Colony. Early religious dissenters such as Roger Williams, Anne Hutchinson, and Mary Dyer objected to the role that religion played in the government of the colony and they questioned the religious principles that comprised official doctrine. Each of the dissenters was found guilty of heresy and expelled from the Massachusetts colony. Roger Williams founded the colony of Rhode Island upon the principles of freedom of religion and the separation of church and state. Mary Dyer, a Quaker, was executed when she returned from Rhode Island to Massachusetts. Today she considered a martyr to religious liberty.

     Just before the Constitution was written, James Madison and Thomas Jefferson also fought for religious liberty. In the 1780s the State of Virginia had imposed a tax to pay the salaries of religious teachers. Madison wrote his famous Memorial and Remonstrance against the tax, and Jefferson drafted Virginia's Bill for Religious Freedom which overturned the tax. Over the course of their lives Madison and Jefferson frequently wrote of the necessity for the separation of church and state, and Madison drafted the First Amendment to protect freedom of religion.

     The principle of separation of church and state is embodied in the Establishment Clause and the Free Exercise Clause of the First Amendment – in fact these two clauses are the first words of the Bill of Rights. The First Amendment commences: "Congress shall make no law respecting an establishment of religion, nor abridging the free exercise thereof."

     The religion clauses of the First Amendment, like many of our other fundamental rights, were not enforced by the Supreme Court until after Franklin Roosevelt had the opportunity to appoint eight justices to the Court. In 1947, the Supreme Court declared that the First Amendment requires the government to be "neutral" with respect to religion. Today, the accepted meaning of the Establishment Clause is that the government may not endorse religion, and the accepted meaning of the Free Exercise Clause is that the government may not interfere with the practice of religion. Taken together, the two religion clauses prohibit the government from either helping or hindering religion.

     It is often not an easy task to determine whether or not a governmental action is "neutral" towards religion. The Court has ruled that the government may not (at least directly) subsidize religious education, that it may not teach religious doctrine such as creationism in the public schools, and that it may not post overtly religious displays in public buildings or on public land. On the other hand, the Court has determined that the government may give parents vouchers which may be spent to send their children to private or parochial schools, that it may post displays that have historical or artistic value as well as religious significance, and that it may exempt religious institutions from paying property taxes.

     The division within the Court over the interpretation of the Free Exercise Clause involves the constitutionality of laws that apply to everyone but that impose duties or restrictions on people that conflict with some persons' religious beliefs.   The liberal wing of the Supreme Court believes that any law that imposes a substantial burden on the exercise of a person's religion must pass the "strict scrutiny test" in order to be upheld.  This test requires the government to prove that the law is necessary to achieve an overriding governmental purpose.  The conservative wing of the Court, led by Justice Scalia, believes that if a law applies to everybody in society equally, then the law is constitutional so long as it is supported by any rational reason.  Justice Scalia's view of the Free Exercise Clause has prevailed upon the the Supreme Court.  As a result, laws that burden minority religions, like the Native American Church, now receive very little scrutiny from the courts.

      The Establishment Clause of the First Amendment has provoked an equally strong division on the Court.  A slim majority of the Court still supports the "neutrality principle" described above, but Justice Scalia and Justice Thomas have two basic objections to the Supreme Court's current interpretation of the Establishment Clause. First, they contend that the Establishment Clause does not apply to the States. In other words, they believe that the Constitution permits the states to establish official religions. Second, they argue that the religion clauses do not require the government to be neutral with respect to religion. Instead, they take the position that, if it chooses, the government is entitled to endorse religion. They do not believe in the separation of church and state.

     If the views of Justice Scalia and Justice Thomas regarding the Establishment Clause were to prevail, it would mark a complete reversal of the Supreme Court's understanding of the meaning of freedom of religion. The states would be permitted to endorse and fund specific religions with taxpayer dollars, and the federal government would no longer have to act in a neutral manner towards religion.

     Wilson Huhn is a Professor of Constitutional Law at The University of Akron School of Law.  This essay is the eighth in a series of ten essays describing how the 2008 Presidential election may affect the interpretation of the Constitution.

     In 1927 in the case of Whitney v. California Justice Louis Brandeis wrote that the First Amendment protects "freedom to think as you will and to speak as you think." Freedom of thought is absolute, but freedom of speech is not an absolute right because in some situations speech can cause harm, as Justice Oliver Wendell Holmes described in his famous example of a person falsely shouting fire in a crowded theater. The Supreme Court is closely divided on many questions involving the constitutionality of laws that infringe freedom of expression, including the following:

1. Campaign finance reform. In 2003 the Supreme Court narrowly upheld the principal provision of the McCain-Feingold Act which placed limitations on the amount of money that an individual may contribute to political campaigns. Another important provision of the Act which extended these contribution limits to funding for so-called "issue advertisements" during political campaigns was reinterpreted and essentially eviscerated by the Supreme Court in a 2006 opinion by Chief Justice John Roberts.

2. Abortion protests. The Supreme Court has narrowly upheld laws and injunctions against abortion protestors who harass and intimidate patients and staff at abortion clinics. These are difficult cases because the protestors are conducting their activities on public property – the sidewalks and streets outside the clinics – and they do have a constitutional right to attempt to persuade the patients and workers that they should not engage in abortion. However, many abortion protestors have abused that right.

3. Regulation of "adult" businesses. States and cities have used zoning laws and public nudity laws to close down adult bookstores, movie theaters, and strip clubs, and a closely divided Supreme Court has generally upheld these laws.

4. Internet pornography. A large percentage of internet websites are devoted to pornography, and Congress has enacted a number of laws attempting to close these websites or make them less accessible. In general, the Supreme Court has struck down these laws. The key to these cases is whether the internet is a medium of communication which may be closely supervised by the government for content like broadcast television, or whether it should remain largely free from government regulation like a bookstore. So far a majority of the Supreme Court has ruled that the internet should be free of regulation, with Justice John Paul Stevens referring to "the vast democratic forums of the Internet."

5. Symbolic speech such as flag burning and cross burning. A narrow majority of the Supreme Court has declared laws that prohibit burning the American flag to be unconstitutional, while a larger majority ruled that it is unconstitutional for a state to prohibit cross burning. Justice Clarence Thomas dissented in both cases. In his opinion, neither flag burners nor cross burners are protected by the First Amendment. Justice Thomas explained his position in the following passage from his opinion in Virginia v. Black:

"In every culture, certain things acquire meaning well beyond what outsiders can comprehend. That goes for both the sacred [the American flag] and the profane. I believe that cross burning is the paradigmatic example of the latter."

     The contrasting view in favor of freedom of expression was articulated by Justice Robert Jackson in the 1943 case West Virginia Board of Education v. Barnette, where the Supreme Court ruled that children could not be expelled from public schools because they refused to salute the American flag. Jackson said:

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."

     In each of the contemporary freedom of expression cases described above, the Supreme Court has split in its interpretation of the Constitution. The substitution of one or more Supreme Court justices could not only change the outcome of these cases, but it could spell the difference between the adoption of Justice Thomas' view that the government may define what is sacred and what is profane, and Justice Jackson's view that every citizen has the right to make this decision for himself or herself.

Wilson Huhn is a Professor of Constitutional Law at The University of Akron School of Law. This is the seventh in a series of ten essays regarding how the 2008 presidential election may affect the interpretation of the Constitution.