Jeff Skilling, former Enron CEO, has challenged his conviction for fraud and taken his appeal to the Supreme Court of the United States, raising two constitutional issues.  He contends that one of the laws under which he was convicted is unconstitutionally vague, and that his trial should have been moved out of Houston because of adverse pretrial publicity.  In this post I set forth the facts of the case.

    In their brief to the Supreme Court, federal prosecutors claim that Skilling lied to shareholders, federal regulators, and the investing public about Enron's finanacial condition:

1. Petitioner was the president, chief operating officer, and, for several months in 2001, the chief executive officer of Enron Corporation. Between 1999 and the end of 2001, petitioner orchestrated a massive scheme to deceive Enron's shareholders, federal regulators, and the investing public about the company's financial condition and performance. Pet. App. 1a-18a.

a. Enron was formed by the merger of two natural gas pipeline companies in 1985. R. 15066. It enjoyed steady growth through the 1990s due largely to earnings from energy trading in the company's wholesale division. R. 15228. By early 1999, Enron's stock was trading at about 25 times its per-share earnings. R. 17227. Petitioner, whose compensation was tied directly to the value of the company's stock, wished to increase the share price even further. But petitioner also knew that revenue from Enron's existing trading business could not support a higher price-to-earnings multiple (or P/E ratio); as he told his managers, “[t]here ain't no more ‘E’ in the earnings.” R. 17228. Petitioner therefore sought to increase the P/E ratio by convincing the market that Enron was poised for steady and significant growth.

As part of that strategy, petitioner portrayed as bright and promising the prospects of two newer businesses: Enron Energy Services (EES), which sold energy at retail, and Enron Broadband Services (EBS), which represented Enron's effort to enter the telecommunications industry. R. 15226-15229, 17229-17232, 19920-19921. Instead of showing promising results, however, EES and EBS suffered substantial losses. By early 2001, Enron internally predicted that EES would eventually lose more than $1 billion as a result of deteriorating conditions in the California utilities markets. R. 19398. Similarly, EBS lost money in every quarter that it existed. R. 17215, 17232-17233, 17239-17241.

Petitioner responded by systematically concealing the financial condition of EES and EBS from investors. In March 2001, instead of truthfully disclosing EES's poor first quarter numbers, petitioner hastily arranged a “reorganization” of that business two days before the quarter ended. R. 19979-19982. The sole purpose of the reorganization was to hide the losses in EES by shifting all of its money-losing components into the larger balance sheet of Enron's wholesale division. R. 15556, 19446-19448, 19775-19781. The head of EES later testified that petitioner's approval of the reorganization was the worst corporate conduct he had ever experienced, R. 20257, and said of the meeting at which it took place, “I wish on my kids' lives I would have stepped up from that table and walked away.” R. 20338.

As a result of the reorganization scheme, Enron reported first quarter earnings for EES of $40 million, when in fact the business should have recognized a $350 million loss. R. 19988-19989. In the second quarter, Enron announced that EES's earnings had increased 30% to $60 million, although in reality EES had lost $495 million by that time. R. 15567-15568, 15572-15573; Gov't C.A. Br. 17. On analyst calls, petitioner assured investors that “first quarter results were great,” that EES “had an outstanding second quarter,” and that the reason for the shift of certain aspects of EES's business to the wholesale division was “to get more efficiency out of management.” Id. 33; R. 15579.

     In his brief to the Supreme Court, Skilling puts a different spin on things.  He contends that he was simply trying to increase the value of his company's stock as any good manager would:

Petitioner Jeffrey Skilling was a longtime Enron executive, serving as its President and COO for several years before assuming the position of CEO from February to August 2001. Id. He was indicted in 2004 along with Enron Chairman and CEO Ken Lay and Enron CAO Richard Causey. PA18a. The cornerstone of the indictment was the conspiracy count, which alleged an overarching conspiracy to commit wire or securities fraud. Id. The remaining counts – securities fraud, making false statements to Enron's auditors, and insider trading – alleged conduct flowing from that conspiracy. Id.; JA322a-357a.

The Government took time to settle on what crimes, if any, occurred at Enron, R:13292 – other than secret looting by company CFO Andrew Fastow. Critically, Skilling was in no way implicated in Fastow's theft, R:21622-27, 21685, and the Government has never suggested that Skilling shifted or used company funds for his own personal purposes. Prosecutors later admitted that the case against Skilling was plagued by “fundamental weaknesses,” because he “took steps seemingly inconsistent with criminal intent,” there were “no ‘smoking gun’ documents,” and prosecutors relied heavily on cooperating witnesses who had “marginal credibility.” Hueston, Behind the Scenes of the Enron Trial, 44 Am. Crim. L. Rev. 197, 197-98, 201 (2007).

Skilling challenged the Government's case at every turn, presenting evidence showing, for example, *3 that the subject transactions and business decisions were lawful, the risks were fully vetted by outside advisors and Enron's Board, his alleged misstatements were accurate, and all relevant information was disclosed to investors. Pet. C.A. Br. 24-58. The Government responded by emphasizing its theory of honest-services fraud – as opposed to securities or money-or-property wire fraud – as the basis for the alleged fraud conspiracy. It told the jury that this case was “not about what caused the bankruptcy of Enron,” R:36449, or even about “greed,” R:37006-07, 37065. Rather, prosecutors argued, Skilling took inappropriate measures to maintain or improve Enron's stock price, in violation of his fiduciary duties. R: 14784, 14799-800.[FN2] The allegedly improper actions included business decisions that ostensibly exposed Enron to an irresponsible level of long-term risk in exchange for short-term stock-price benefits. JA1044a, 1046a, 1047a. In closing argument, the Government declared that Skilling and Lay committed honest-services fraud because they violated a duty to Enron's “employees” – one prosecutors described as “a duty of good faith and honest services, a duty to be truthful, and a duty to do their job … and do it appropriately.” R:37065.

FN2. JA1052a-53a (“we're here to decide” whether Skilling “breached [his] duties and obligations to [Enron's] shareholders and employees”); R:21224-25 (“fiduciary responsibility”); R:32262-64 (duty of “honesty, candor, and fairness”); R:36568 (“duty” of “honest services”); R:37013-14, 37043 (duties of “loyalty, “honesty,” “honest services”); accord 14751, 14757-58, 14784, 15864-67, 22769-70, 37065.

The Government argued that Skilling committed every alleged act of misconduct with the specific intent to advance Enron's interests – by increasing reported *4 earnings, maintaining an investment-grade credit rating, and improving the price of Enron's stock. JA275a-76a, 282a-83a, 286a-88a. Government witnesses agreed that Skilling was utterly dedicated and loyal to Enron. JA1048a (“had the best interests of Enron in mind” and was “fighting for [his] company”), JA1042a (“a true believer in Enron”), id. (“very committed to the company”), JA1047a-48a (“[r]eally dedicated to the company”). Indeed, Skilling declined $50 million in guaranteed compensation shortly before the alleged conspiracy began, to set an example for management, R:28481-86, and offered to invest $70 million of his own funds – effectively his entire net worth – to keep the company operating when it was on the brink of collapse in late 2001. R:28238-43. In the Fifth Circuit's words, “Enron created a goal of meeting certain earnings projections,” and Skilling's actions were intended to achieve that goal. PA27a.

The Government did not argue on appeal or at the certiorari stage that Skilling sought private gain at the expense of Enron. To the contrary, its consistent position in this case has been that the evidence needed only to show – and did only show – “a material violation of a fiduciary duty that defendants owed to Enron and its shareholders.” R:41327-28.

     A Houston jury convicted Skilling on 19 counts: one count of conspiracy to commit  securities fraud and wire fraud, 12 counts of securities fraud, five counts of making false representations to auditors, and one count of insider trading.  On appeal he contends that the conspiracy count should be reversed because the law under which he was prosecuted – 18 U.S.C. 1346 - is unconstitutionally vague.  I will discuss that claim in the next post.

     Amy Sullivan of Time Magazine published an article yesterday counting votes in the House of Representatives on the abortion funding issue.  Her conclusions are summarized below.

     Health care reform passed the House by a vote of 220 to 215.  One Republican voted for the bill and 39 Democrats voted against it.  Furthermore, 64 House Democrats voted in favor of the Stupak Amendment which would require women to purchase separate policies for abortion coverage.  The Senate bill contains language proposed by Senator Nelson which requires the segregation of public and private funding in the purchase of health insurance, with abortion coverage paid for with private funds.  The President's proposal does not mention abotion funding, but it is expected that he would favor the language of the Nelson Amendment.  How many of the 64 representatives who voted for the Stupak Amendment will be willing to vote for the Senate bill or the President's proposal?

     In her Time Magazine article published Wednesday entitled "Could Abortion Still Sink Health Care Reform," Sullivan breaks down the different categories of representatives based upon how they cast their votes on both the Stupak amendment and the final House bill:

Yes on Stupak Amendment, No on the Health Care bill = 23 Democrats, mostly from southern states.  Not only are they pro-life, but they did not like the House bill even with the Stupak Amendment.  Very few, if any, of these representatives are likely to vote for the President's proposal.

Yes on Stupak Amendment, Yes on Health Care bill = 41 Democrats.  Of these, 17 are not members of the House pro-life caucus, and will probably be satisfied with the Nelson language.  Of the remainder, many of them supported Brad Ellsworth's compromise measure that was similar to the Nelson Amendment.  (Brad Ellsworth is a member of this group of 24).  The leadership hopes that several of these representatives will vote for the Senate bill or the President's proposal. 

No on Stupak amendment, No on health care bill = 16 Democrats.  These relatively pro-choice representatives may have voted against the bill because of the inclusion of the Stupak Amendment or because of the inclusion of a public option, and may be willing to vote for a bill that is more moderate on both counts like the Senate bill or the President's proposal.

     If the President can persuade the 16 relatively pro-choice / anti-House bill Representatives in the final group to vote for the Senate bill or for his compromise proposal, and gain the support of at least four more pro-life members such as Representative Ellsworth, the health care reform bill will pass the House.

Visit Professor Huhn's website on health care financing reform for links to information about proposed legislation, studies and reports, public agencies, and private organizations concerned with this issue. 

     In yesterday's post I described the legal reasoning that Jay Bybee and John Yoo used to justify subjecting prisoners under American control to slow drowning, the cold cell, shackling in a standing position for days at time, and confinement in a small box.  Today I describe why David Margolis, Deputy Assistant Attorney General, does not consider their memos authorizing these actions to constitute "professional misconduct."

     The Justice Department's Office of Professional Responsibility found that Yoo and Bybee were guilty of "professional misconduct" because of the secret memos they issued authorizing the administration to engage in actions that many legal authorities regard as torture.  In his memorandum of January 10, 2010, David Margolis overruled OPR, and finds instead that Yoo and Bybee are guilty of "poor judgment" – not "professional misconduct."  How did he reach this decision?

     Margolis' memorandum is well-written, carefully crafted, and tightly reasoned.  It is, on the whole, a persuasive document.  I do not agree with his conclusion, but it is an impressive response to this matter.

     Margolis begins with the rules of professional responsibility.  Under Rule 1.2 of the Rules of Professional Conduct that were in effect in the District of Columbia when these memos were written, "a lawyer shall abide by a client's decisions concerning the objectives of representation:"

(a) A lawyer shall abide by a client’s decisions concerning the objectives of representation, subject to paragraphs (c), (d), and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.

(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social, or moral views or activities.

(c) A lawyer may limit the objective of the representation if the client consents after consultation.

(d) A government lawyer’s authority and control over decisions concerning the representation may, by statute of regulation, be expanded beyond the limits imposed by paragraphs (a) and (c).

(e) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law.

      Note that under paragraph (c), government attorneys may be held to a different standard.  By statute or rule, government lawyers may not be primarily responsible to the wishes of their client (a government official or public agency), but rather they may be required to exercise independent judgment in the conduct of their duties.  In this case, there was a long tradition in the Office of Legal Counsel of just such independence – Justice Department lawyers are supposed to follow the law, not the President's orders.  However, Margolis points out that the regulation governing the Office of Legal Counsel (28 C.F.R. 0.25) does not mandate independent judgment.  Instead, this regulation states:

The following-described matters are assigned to, and shall be conducted, handled, or supervised by, the Assistant Attorney General, Office of Legal Counsel:

(a) Preparing the formal opinions of the Attorney General; rendering informal opinions and legal advice to the various agencies of the Government; and assisting the Attorney General in the performance of his functions as legal adviser to the President and as a member of, and legal adviser to, the Cabinet. …

     In short, Margolis concluded that under the law Yoo and Bybee were permitted to take the wishes of their client – the President – into account in framing arguments about the legality of waterboarding and other interrogation techniques.  Margolis found that their actions were inconsistent with the "high standards" of objectivity and candor expected of Justice Department attorneys, but that they did not constitute "professional misconduct."

     Margolis quoted Jack Goldsmith of the Justice Department as framing the issue in this way:

The issue is, are attorneys in the Justice Department required to give objective advice as to their best opinion, or are they permitted to act as attorneys for the President, advising him on how much he can get away with?

     In effect, Margolis interprets the Rules of Professional Conduct as permitting Justice Department attorneys to advise the President on "how much he can get away with," even though the Department itself holds its attorneys to a higher standard.   

     Furthermore, Margolis does not believe that Yoo and Bybee authored these memos for the purpose of facilitating criminal conduct.  Yoo, he noted, has long held a sincere belief that the President's power is nearly absolute in these matters, and Bybee was guided by Yoo in this matter.  Margolis' key finding appears on page 67 of his report:

“I am not prepared to conclude that the circumstantial evidence much of which contradicted by the witness testimony regarding Yoo’s efforts establishes by a preponderance of evidence that Yoo intentionally or recklessly provided misleading advice to his client. It is a close question. I would be remiss in not observing, however, that these memoranda represent an unfortunate chapter in the history of the Office of Legal Counsel. While I have declined to adopt OPR’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client. These memoranda suggest that he failed to appreciate the enormous responsibility that comes with the authority to issue institutional decisions that carried the authoritative weight of the Department of Justice. I do not believe the evidence establishes, however, that he set about to knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his action.”

     I agree that it is a "close question," and I am reluctant to charge another attorney with misconduct simply because I disagree with the conclusions he reached about the proper interpretation of the law.  By that standard every person I have ever debated as well as many of my readers could accuse me of being unethical.  But Yoo and Bybee held people's health and lives in their hands, and they owed this country not partisan loyalty or ideological purity but rather their best effort to present a balanced and objective review of the law.  They were not writing acacemic articles or designing a tax shelter for a client  – they were helping to run the government.  Just as we hold prosecutors to a higher standard than defense attorneys – we expect prosecutors to be more beholden to the truth than to winning – we may reasonably expect Justice Department attorneys to at least mention Youngstown Sheet & Tube when advising the President about the constitutionality of laws affecting his exercise of war powers.

     The Yoo and Bybee memos as well as other materials may be accessed from this page on Treatment of Detainees at my website on Constitutional Law.  In addition, here some essays I have previously written on this subject:

    The Justice Department's investigation into the role of Justice Department lawyers John Yoo and Jay Bybee in the approval of conduct that many people regard as torture has come to a close.  The Office of Professional Responsibility recommended that Yoo and Bybee be referred to disciplinary committees for their role in this matter, on the theory that the lawyers' conduct was "unethical."  However, Associate Deputy Attorney General David Margolis has overruled that recommendation, and instead concludes that Yoo and Bybee were guilty of "poor judgment," not "professional misconduct."  In this post I discuss what Yoo and Bybee said in their memos.  In the following post I will discuss Margolis' findings and conclusions.

     In their memos of August 1, 2002, (here and here) and March 14, 2003, (here and here), Jay Bybee and John Yoo go to great lengths in arguing that the "enhanced interrogation techniques" that the government was considering using on prisoners were lawful.  According to Jay Bybee's memo of August 1, 2002, these techniques included the following:

    1.  Confining the prisoner in a dark box for up to 18 hours at a time.  Because the prisoner was afraid of insects, interrogators planned to include an insect in the box;

     2.  Forcing the prisoner to stand, sit, or kneel in uncomfortable positions – for example, standing or sitting on the floor with arms extended or kneeling back at an angle for unspecified periods of time;

     3.  Depriving the prisoner of sleep for up to 11 days at a time;

     4.  Waterboarding the prisoner (drowning him slowly) for up to 20 minutes at a time.

     Bybee and Yoo concluded that this conduct did not violate the Torture Act, the War Crimes Act, the Convention Against Torture, the Geneva Convenion, or any other laws prohibiting torture or "cruel, inhuman, or degrading treatment" of prisoners for a variety of reasons - these laws and treaties did not apply; the conduct did not amount to torture or cruel, inhuman, or degrading treatment; the conduct was justified under the common law doctrines of necessity or self-defense; and the laws and treaties were unconstitutional.

     The extent to which Bybee and Yoo went to justify these actions is apparent from the arguments that they made with respect to three points – the definition of torture under the Torture Act,  the defenses available in a prosecution under the Torture Act, and the constitutionality of the Torture Act.

Definition of Torture

     The Torture Act (18 U.S.C. 2340) defines torture as follows:

“torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control ….

     Both Bybee and Yoo interpret the term "severe physical pain" by refering to similar language in a federal statute that describes when hospitals have a duty to render emergency medical care.  According to Bybee and Yoo, because "severe pain" is evidence that there may be a medical emergency leading to organ failure or death under federal statutes regulating the duty to provide medical care, therefore interrogation techniques that do not threaten organ failure or death do not constitute torture.  Here is the relevant paragraph from their memos on this point: 

These statutes define an emergency condition as one "manifesting itself by acute symptoms of sufficient severity(including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in placing the health of the individual … (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part." Id. § 1395w-22(d)(3)(B) (emphasis added). Although these statutes address a substantially different subject from section 2340, they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent, impairment of a significant body function. These statutes suggest that to constitute torture "severe pain" must rise to a similarly high level – the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.

      Yoo also argues that waterboarding and other "enhanced interrogation techniques" do not even constitute acts that are "cruel, inhuman,or degrading" because they were not being undertaken with the "specific intent" of causing harm, but rather because our agents were seeking to protect this country from attack.  This argument confuses "motive" with "intent."  My motive in stealing bread might be to feed the poor, but it does mean that I lacked the intent steal the bread.  Nevertheless, Yoo confidently asserts that this would constitute a barrier to prosecution under the law.

Defenses to the Torture Act – Necessity and Self-Defense

     Bybee and Yoo both argue that C.I.A. agents could assert, as a legal defense, that their actions were "necessary" to protect Americans from attack, or that their treatment of prisoners constituted "self-defense."  None of the relevant statutes sets forth these defenses, and the relevant treaty – the Convention Against Torture, which the Torture Act was enacted to implement – explicitly strips away these defenses.  Article 1 of the Convention Against Torture, signed by President Reagan and ratified by the first President Bush, states that it applies specifically in situations where government agents are interrogating prisoners who are accused of crimes or who may have information that the government seeks to discover:

For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

     Furthermore, Article 2.2 of the treaty provides that "no exceptional circumstances whatsoever" can justify acts of torture by government agents, including war or insurrection:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

     Yoo and Bybee both argue the common law of necessity and self-defense would nevertheless be available to defendants charged with torture under the Torture Act.  In my opinion, this is not even a plausible interpretation of the statute and treaty.

Constitutionality of Torture Act and Convention Against Torture under Separation of Powers

     It was well-known that John Yoo has long believed that the President has more or less absolute power to act in time of war.  Both Yoo and Bybee repeat this position in these memos.  They do so without once mentioning the case of Youngstown Sheet & Tube v. Sawyer, which is not only the leading Separation of Powers decision ever decided by the Supreme Court, but it concerns the President's exercise of war powers in the absence of statutory authority.  It is simply inconceivable that any lawyer – or even a first-year law student – would attempt to analyze the constitutionality of a law limiting the President's authority to deal with prisoners without a thorough discussion of this case.   But Bybee and Yoo do just that.

    The legal memoranda authored by Bybee and Yoo were used to justify the use of these techniques on prisoners.  Nevertheless, David Margolis, Deputy Assistant Attorney General, has found that their conduct and advice does not constitute "professional misconduct" and he has recommended that Bybee and Yoo not be referred to disciplinary committees.  Tomorrow I will explain Margolis' reasoning.

     Each of these memos and other materials may be accessed from this page on Treatment of Detainees at my website on Constitutional Law.  In addition, here some essays I have previously written on this subject:

     President Barack Obama has released his proposal merging the House and Senate health care reform bills and adding some Republican ideas.  Links and analysis below:

     Here is the President's new website called "Putting Americans in Control of Their Health Care."  The President's proposal itself – consisting of a lengthy summary, not legisative language – may be accessed either here at whitehouse.gov or here from Talking Points Memo.  The President's site also contains a description of several Republican-supported ideas that are contained in the final package. 

     The President's proposal retains the principal features of the health care reform bills adopted by the House and Senate.  Individuals will be reuquired to purchase health insurance, and in return health insurers may not turn down persons with pre-existing conditions nor may insurers place annual or lifetime limits on the amount of coverage a person qualifies for.  The bill will create an Exchange for the sale of non-group policies, and the government will have the power to regulate insurance sold through the Exchange.  One new provision – in light of the recent sharp increases in health insurance premiums, the President's proposal would empower both state insurance commissioners or the Secretary of Health and Human Services to determine whether increases in insurance premiums are justified.

     On the revenue side, the President reduces reliance on taxing expensive health insurance plans (the approach taken in the Senate bill) in favor of increasing the Medicare tax on persons earning over $200,000 annually – and it extends that tax for the first time to persons receiving unearned income (interest, dividends, and the like).

      Here are the other principal changes that the President has made in reconciling the House and Senate bills:

1.  The President reconciled the differing schedules in the House and Senate bills for government reimbursement for health care.  Families earning less than $88,000 annually will qualify for tax credits to help pay for health insurance purchased through the non-group market;

2.  The President's proposal closes the "donut hole" for prescription drugs under Medicare by the year 2020;

3.  The President would allocate $11 billion more than current law for community health centers over the next ten years – this splits the difference between the House and Senate bills;

4.  Like the Senate bill, the President's proposal does not contain an employer mandate but it does increase the penalty on employers who do not.  Businesses with fewer than 50 employees do not have to provide health insurance, and businesses with more than 50 employees will have to either provide health insurance  or pay a fine of $2000 per employee.  The President's proposal allocates $40 billion in tax credits to encourage employers to provide health insurance for their employees.

5.  Persons who earn more than $200,000 annually in passive income (dividends, interest, annuities, royalties, or rents) will have to pay a tax of 2.9% which will be contributed to the Supplemental Medical Insurance Fund.

     The President's proposal largely merges the House and Senate bills.  Like Democrats in Congress, the President has decided to address the problems of cost, access, and quality of medical care by enacting an individual mandate and publicly-subsidized purchase of private health insurance.  I see nothing in the President's proposal that will ameliorate Republican opposition to the bill.  If this package is not enacted as a whole, I predict that significant portions of it will be enacted separately.  But let's see what happens at the bipartisan health care summit on Thursday!

Visit Professor Huhn's website on Health Care Financing Reform for information about proposed legislation, studies and reports, advocacy organizations, and more.

     Following reports of Wellpoint's 39% increase for individual health insurance coverae in California comes news of even larger increases in other states – up to 56%, according to this article by Ricardo Alonso-Zalvidar of the Associated Press.  Which way will this cut in the current debate over health care reform?

     According to Alonso-Zalvidar:

Proposed premium increases of as much as 39 percent by WellPoint's Anthem Blue Cross in California set off a wave of criticism and forced the company last week to announce a postponement. President Barack Obama seized on Anthem as Exhibit A to make his case for sweeping change before a bipartisan White House health summit next week. California officials said more than 700,000 households face increases averaging 25 percent overall and as high as 39 percent for some.

In a briefing for reporters, WellPoint executives blamed their rate increases on rising medical costs and a pool of customers that is gradually becoming older and sicker, as younger, healthier people drop coverage. They insisted that their competitors are raising rates in much the same way.

     The President and the Democratic majority contend that these increases demonstrate the necessity for requiring everybody to pay for health insurance so that the cost of injury and illness are spread evenly across society.  Republicans, on the other hand, may argue that it is unfair to require healthy persons to subsidize medical care for unhealthy persons, and they may point to the exodus of healthy persons from the system as evidence of this.  They may also contend that the method of reform chosen by Democrats is futile – that it is simply too expensive to attempt reform by requiring all persons to purchase health insurance from private companies.

     If people become convinced of that final argument – that the system of private health insurance is simply too inefficient and too unwieldy to be brought within the reach of the middle class – then we may see reformers turn away from the current Democratic bills and towards a public option.

     Below is a description of and links to the House Republican health care plan.

     Minority Leader John Boehner (R-OH) has sponsored the Common Sense Health Care Reform and Affordability Act, which appears to have the support of the House Republican caucus.  Boehner describes his position on health care at this page of his website.  On November 4, 2009, the Congressional Budget Office released its estimate of the likely effect and cost of Boehner's bill.

     Representative Boehner and the President agree on what the problems are: the high cost and limited availability of health insurance.  However, they do not agree as to the causes of those problems.  Rep. Boehner blames "burdensome mandates" and "unlimited lawsuits" for the high cost of health insurance:

Like many Americans, I am concerned with the rising cost of health care. These costs have increased because of the burdensome mandates placed on providers.

Nearly 130 million Americans – almost 80% of all workers in the United States – get their health coverage through their workplace. Another 43 million have no health coverage at all. Any legislation must offer the millions of uninsured Americans increased access to affordable health coverage by making it easier for small employers to offer more benefits while protecting employers from unlimited lawsuits.

     Rep. Boehner opposes expanding Medicaid or reducing payments under Medicare:

Some have proposed expanding government-provided health benefits created to help children of low-income families have access to affordable healthcare to families who already can afford private insurance. Equally as bad as expanding government-run health care is that it would be paid for by slashing Medicare for seniors who depend on these valuable benefits to provide affordable healthcare and prescription drugs.

     Rep. Boehner would address the problems of coverage and cost by making it easier for small employers to provide health insurance:

[S]ince small business employees make up more than 50 percent of those without health coverage, we need to make it easier and more affordable for small businesses to offer health benefits. One proposal that deserves consideration involves association health plans that allow small businesses to pool their resources with other small businesses to purchase insurance at a better rate. In turn, the premiums paid by their employees will remain affordable.

Innovative proposals like association health plans and health care tax credits for employers – another idea under consideration – will assist us in solving the “uninsured problem."

     Unlike the Democratic bills, the House Republican bill does not contain an "individual mandate" requiring people to purchase health insurance; nor does it prohibit insurance companies from excluding coverage for preexisting conditions; nor does it include a widespread program for subsidizing the purchase of health insurance for low-income persons.  Here is a summary of the provisions of the House Republican bill from the CBO report: 

• • Regulatory reforms in the small group and nongroup markets, including establishing AHPs and individual membership associations, and allowing states to establish interstate compacts with a unified regulatory structure;
  • A State Innovations grant program to provide federal payments to states that achieve specified reductions in the number of uninsured individuals or in the premiums for small group or individually purchased policies; 
  • Federal funding for states to use for high-risk pools in the individual insurance market and reinsurance programs in the small group market; and
  • Changes to health savings accounts (HSAs) to allow funds in them to be used to pay premiums under certain circumstances, to make net contributions to HSAs eligible for the saver’s credit, and to provide a 60-day grace period for medical expenses incurred prior to the establishment of an HSA.

     On November 5, 2009, I published this post comparing the Democratic and Republican proposals.  The bottom line is that the Republican bill would spend far less than the Democratic bill, and it would achieve much less as well.  According to the CBO, the Republican bill would reduce the number of uninsured Americans by 3 million persons, instead of the more than 30 million additional citizens who would receive coverage under the Democratic bill. 

     In my next post on this subject I will identify the separate elements of each plan so that you can "keep score" going into the bipartisan health care summit.

Visit Professor Huhn's website on health care financing reform for links to information about proposed legislation, studies and reports, public agencies, and private organizations concerned with this issue.

     In yesterday's post I described the President's invitation of Congressional leaders of both parties to a bipartisan health care summit on February 25, and how Judd Gregg (R-NH) has responded by stating that he is looking forward to the summit where he will put forth his plan for health care reform.  What is his plan?

     Senator Gregg calls his proposal "CPR" – for "Coverage, Prevention, and Reform."  He states that "the health care system is flat lining and is in grave need of CPR."  His website contains a short press release describing his plan as well as a detailed four-page summary.   In the press release, Gregg says:

“There is significant bipartisan ground from which to reset the health care debate. A good place to start would be my own plan, Coverage, Prevention and Reform (CPR) or the bipartisan Wyden-Bennett Healthy Americans Act. Both of these fiscally responsible, market-based plans would go a long way to produce the reform that the American people need. I look forward to working with the President and my colleagues on both sides of the aisle to get this right.”

      The press release states that Gregg's proposal is intended to accomplish the following three goals:

• Ensuring access to affordable, meaningful health insurance coverage regardless of health or where you work;

• Providing coverage for preventive measures and disease management with nominal co-payments; and

• Reducing costs and improving the quality of services to provide better care while at the same time saving hundreds of billions of dollars.

     Sounds good.  What are details of the plan, and how does it compare to the Democratic plans passed by the House and Senate?

     The centerpiece of the Democratic health care bills is the "individual mandate."  Everyone has to purchase health insurance.  Insurance companies could not exclude anyone on account of pre-existing conditions (no insurance ratings for health).  Insurance companies could not include annual or lifetime limits on coverage, and preventive care would have to be completely covered – no co-pays.  Finally, persons with low income (below 400% of the federal poverty level) would receive either tax credits or subsidies to purchase health insurance. 

     The Democratic plans would require nearly all individuals to purchase relatively comprehensive health insurance policies.  In addition, the Democratic plans would greatly expand Medicaid coverage to include all persons earning up to 133% of the federal poverty level, with all additional costs to be borne by the federal government.  These two changes would each cost about $50 billion annually, or a total of about $100 billion annually.  In ten years the number of uninsured Americans would be reduced to between 15 and 20 million Americans, instead of over 50 million Americans that are expected if we continue to operate under current law.

     Senator Gregg's CPR plan contains the same core as the Democratic plans.  It requires all persons over 21 to have proof of health insurance.  Insurance companies would be required to cover pre-existing conditions.  His plan would eliminate annual and lifetime limits on coverage and preventive care would be completely covered.  And the government would subsidize low income perssons to purchase health insurance.  Gregg draws the line for assistance lower than the Democratic bills, at 300% of federal poverty level. 

     How is Gregg's plan different from the Democratic bills?  I cannot be certain, but it appears that Senator Gregg would require individuals to only purchase "catastrophic" health care coverage – a minimal type of health insurance – which would require people to pay far more of their health care bills out-of-pocket.  In addition, it does not appear that Senator Gregg would expand Medicaid or the role of the federal government in paying for Medicaid.  These two differences would, of course, result in a far smaller drain on the federal treasury.  But it would also mean far less relief for low income persons in paying their medical bills.  Senatory Gregg's proposal does not include any estimate as to how many people would be helped or how much they would have to pay for health care in premiums and out-of-pocket as compared to the Democratic bills.

     Senator Gregg's plan also differs from the Democratic bills in how it would pay for reform.  The House Democrats would pay for the individual subsidies and expansion of Medicaid by increasing taxes on persons earning over $500,000 per year.  The Senate Democratic bill would tax "cadillac health plans" worth more than $23,000 for a family of four or $8,500 for an individual.  Both the House and Senate Democratic bills would eliminate the 14% surcharge that the government pays Medicare Advantage plans.

     The Wyden-Bennett bill (S. 391, the Healthy Americans Act) that Senator Gregg referred to in his press release in the first quotation set forth above would have paid for extensive health care reform by eliminating the favorable tax treatment for employer-provided health insurance – which is in effect a tax deduction for health insurance.  Essentially, under Wyden-Bennett, the value of health insurance would be treated as income to employees, and the tax revenues generated by this change would be used to purchase health insurance for low income persons.  Gregg's CPR plan would merely reduce this middle-class tax deduction rather than eliminate it.  Under Gregg's proposal, any health insurance provided by an employer worth over $11,000 for a family or $5,000 for an individual would be counted as taxable income.  However, Gregg would create an equivalent income tax deduction for insurance plans purchased by individuals, thus eliminating the differential treatment of employer-provided and individually-purchased health insurance that exists under current law.  While the Wyden-Bennett plan would easily pay for itself by making health insurance taxable income, Gregg's more limited plan might not.  Gregg's summary does not contain any estimates of how much money (if any) these changes would generate to pay for reform.  In effect, Gregg's CPR plan is a less ambitious version of Wyden-Bennett.

     Gregg's plan contains a number of other provisions that are the same or similar to portions of the Democratic bills.  A government agency would make findings and recommendations about best practices and most efficient treatment options.  Employers would be permitted to offer more incentives to employees to participate in wellness programs.  Medicare participants and other health care providers would be encouraged to coordinate care, reduce medical error, and prevent unnecessary readmissions.  Regardless of what other changes to existing law are enacted, these all appear to be valuable reforms.

     How much support is there in Republican circles for Gregg's plan?  Wikipedia has a chart showing that four Republican Senators, including Lindsey Graham, Mike Crapo, Bob Bennett, and Lamar Alexander, were willing to sponsor the Wyden-Bennett bill in 2009, and that a number of others did so in 2007.  Gregg's CPR plan would cost much less than the Wyden-Bennett bill would, so it is reasonable to assume that Gregg could command significant Republican support for his plan. 

     Tomorrow: the House Republican plan.

     Visit Professor Huhn's website on health care financing reform for links to information about proposed legislation, studies and reports, public agencies, and private organizations concerned with this issue.

     Hopes are high but expectations are low for the upcoming bipartisan health care summit called by President Obama.  How are Republicans approaching this meeting?

          President Obama has scheduled a bipartisan meeting on health care for February 25 that will be broadcast live on C-SPAN.  Here is the President's invitation, as well as the invitation list.  Here is an article by Jeff Zeleny of the New York Times concerning the announcement of the summit.

     In this post in California Healthline describes concerns that Republican leaders have expressed regarding the summit:

On Monday, House Minority Leader John Boehner (R-Ohio) and House Minority Whip Eric Cantor (R-Va.) sent a letter to White House Chief of Staff Rahm Emanuel with a list of questions that they requested responses to ahead of the meeting (Shear, Washington Post, 2/9).

The letter asked whether Obama:

Would agree to "start over" with the negotiations process that would produce legislation "that is truly worthy of the support and confidence of the American people;"

Has ended consideration of using the parliamentary procedure of budget reconciliation to push a reform bill through the Senate with only 51 votes;

Plans to invite to the meeting Democratic lawmakers who have opposed the House and Senate bills (HR 3962, HR 3590), or any provisions in them; and

Whether state lawmakers and health officials, and health care policy experts would be present at the meeting (O'Connor, "Live Pulse," Politico, 2/8).

     At a press briefing after his recent meeting with Republicans at their retreat, President Obama reiterated the three goals that he wishes to accomplish with health care reform: reduce costs, end insurance company abuses, and expand the availability of insurance in individual market.  When asked to respond to the Republican request to discard the two Democratic bills passed by the House and the Senate and "start from scratch," the President said:

So I've got these goals. Now, we have a package, as we work through the differences between the House and the Senate, and we'll put it up on a Web site for all to see over a long period of time, that meets those criteria, meets those goals. But when I was in Baltimore talking to the House Republicans, they indicated, we can accomplish some of these goals at no cost. And I said, great, let me see it. And I have no interest in doing something that's more expensive and harder to accomplish if somebody else has an easier way to do it.  So I'm going to be starting from scratch in the sense that I will be open to any ideas that help promote these goals.

     Kate Pickert of Time authored this entertaining piece about the President having accepted the Republican challenge to televise the summit.  According to an article by Sam Stein of the Huffington Post, John Kyl of Arizona has characterized the summit as "pointless."  In separate opinion pieces published in Politico, Frank Dontelli, Chairman of GOPAC, calls for adoption of the House Republican plan, but Christie Todd Whitman, former Governor of New Jersey and Director of the EPA under President George W. Bush, expresses more willingness to compromise with the President.

     Of all of the statements from Republicans in advance of the summit, the most intriguing may be that of Judd Gregg, Senator from New Hamshire.  David Rogers of Politico posted this article entitled "Can Judd Gregg Help White House Save Health Bill," and Chris Mathews of Harball conducted an interview in which Gregg said:

[I]t is in the interest of the Republican Party to put in place a plan that will bring down the cost of health care and make it readily more available and make our quality better in the this country, so that we can afford it. I mean, we are on a path here to fiscal insolvency as a nation and a large part of the problem that we have relative to our finances as a country is driven by the cost of health care, especially in the Medicare accounts. So, you can‘t address those unless you address them in a bipartisan way, in my opinion and as a very practical matter, we don‘t solve this, we are all going to be in the soup and we‘re going to end up passing onto our kids a country where their standard of living is less than ours. 

      Tomorrow: Gregg's plan. 

Visit Professor Huhn's website on health care financing reform for links to information about proposed legislation, studies and reports, public agencies, and private organizations concerned with this issue.

     Justice Anthony Kennedy followed Justice Sandra Day O'Connor as the "swing justice" on the Supreme Court.  Both justices are brilliant and devoted to the Constitution – but their approaches to constitutional decisionmaking could not be more different.

     The swing justice on the Supreme Court not only casts the deciding vote, but also has the bargaining power to demand the opportunity to author the majority opinion – to cast the Constitution in the mold that he or she chooses.  As a result, going forward more and more of the most significant decisions of the Court, like Citizens United, will be written by Anthony Kennedy.  What distinguishes Kennedy's jurisprudence from that of Sandra Day O'Connor, whom he replaced as swing justice?

     I see two distinguishing features in their approaches to constitutional interpretation.  First, using a distinction noted by Judge Richard Posner, Kennedy is more of a "top down" judge – he deduces results from general, overarching principles.  O'Connor is more of a "bottom up" judge – she starts with a careful examination of the facts, is attentive to context and nuance, and is more likely to identify and explicitly balance the competing elements of a case in reaching a decision.  Second, although Kennedy devotes a great deal of attention to the matter of following precedent and the principle of stare decisis, O'Connor takes these concepts more seriously.

     In this post I will discuss the first distinguishing feature between them – "top down" versus "bottom up" reasoning, and compare their jurisprudential styles to those of other justices.  In a future post I will compare their approaches to the use of precedent and stare decisis.

     Justice Kennedy, like Plato, lives in a world of perfect forms.  To him, the most beautiful word in the Constitution is the word "liberty," and for him it has almost mystical significance.  Here is how he describes the concept of the Right to Privacy in Lawrence v. Texas:

"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."

     And here is what Justice Kennedy wrote about the role of "liberty" under the doctrine of  Separation of Powers in his concurring opinion in Clinton v. New York, the line-item veto case:

Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.

Separation of powers was designed to implement a fundamental insight: Concentration of power in the hands of a single branch is a threat to liberty. The Federalist states the axiom in these explicit terms: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands ••• may justly be pronounced the very definition of tyranny.” The Federalist No. 47. So convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary. The Federalist No. 84. It was at Madison's insistence that the First Congress enacted the Bill of Rights. It would be a grave mistake, however, to think a Bill of Rights in Madison's scheme then or in sound constitutional theory now renders separation of powers of lesser importance.

     The plurality opinion of Justices Kennedy, O"Connor, and Souter in Planned Parenthood of Southeastern Pennsylvania v. Casey begins and end with the word "liberty," and the first word of Kennedy's majority opinion in Lawrence v. Texas commences is "liberty" and the last word is "freedom."  These ideas are, for Kennedy, the alpha and the omega of constitutional analysis.

     O'Connor, in contrast, is sensitive to all aspects of the human condition.  As Thorgood Marshall said in his dissenting opinion in United States v. Kras:

"[I]t is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live."

     For example, in Lynch v. Donnelly, in which the Court was asked to decide whether the City of Pawtauket, Rhode Island, could display a nativity scene in a town park, O'Connor describes the entire display in fine detail, and concludes that in the context of this particular display it was constitutional for the city to include religious imagery – that taken as a whole, the display was not an "endorsement" of religion.  You may disagree with the conclusion that Justice O'Connor reaches in this case, but you cannot accuse her of neglecting any detail or failing to consider any aspect of the problem before the Court.

     The contrast between Justice O'Connor and Justice Kennedy's approaches to constitutional decisionmaking is strikingly apparent in two significant decisions on campaign finance reform – O'Connor's opinion in McConnell v. F.E.C. (2003) upholding important provisions of the McCain-Feingold Act, and Kennedy's opinion Citizens United v. F.E.C. (2010) striking down some of those same provisions.  Both opinions are extremely long, but O'Connor concentrates on the facts while Kennedy is mostly concerned with the principles that are at stake.  O'Connor devotes tens of pages to describing the history of campaign finance reform in the United States, and to summarizing the legislative record, which itself ran to over 100,000 pages.  Kennedy gives short shrift to the facts, to the point of striking down the campaign finance law "on its face" – allowing both nonprofit and for-profit corporations to purchase campaign ads in any and every circumstance – even though the plaintiff had only challenged the law "as applied," the facial challenge wasn't argued in the trial court, and the parties did not develop a record in the trial court about what the consequences of the decision would be.  As a result Citizens United was decided in the absence of an evidentiary record that could have informed the decisionmaking of the Court.

     Justice Kennedy is devoted to the First Amendment as a matter of principle.  Like Justice Hugo Black, he tends towards First Amendment absolutism.  For example, he believes that laws restricting the conduct of abortion protestors at clinics – even where there is proof that protestors were blocking entrances and harrassing patients and staff – violate the First Amendment.  Unlike Black, however, Kennedy is no textualist – he does not interpret the Constitution literally.  Nor does he engage in extended analysis of the intent of the Framers, attempting to divine how they would apply the Constitution to modern-day corporations.  Instead, Anthony Kennedy takes a simple, direct approach to First Amendment analysis.  He would almost always allow speech even where it might cause a great deal of harm – let the cards fall where they may.  O'Connor always wanted to know where those cards were going to fall before she made a decision.

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

     Justice Anthony Kennedy's views have not changed on the constitutionality of campaign finance laws.  Over the years he consistently dissented from decisions upholding these laws. 

     As set forth in yesterday's post, before Citizens United the Supreme Court had held in a number of cases such as Buckley v. Valeo  (1976), Austin v. Michigan Chamber of Commerce (1990), Nixon v. Shrink Missouri Government PAC (2000), and McConnell v. Federal Election Commission (2003) that it was constitutional for law to limit the flow of money into political campaigns in the following ways:

1.  Corporations and unions may not contribute money directly to candidates or spend money on campaign advertisements for candidates.  Instead, they must create "political action committees," by means of which individuals associated with the corporation or union may contribute money to a fund that is used to make contributions or purchase advertising.

2.  No individual may contribute more than $2,300 per year to any particular candidate for federal office, whether the money is donated directly to the candidate or funnelled through a political party or other advocacy organization.

3.  The source and amount of each contribution must be disclosed.

     Justice Kennedy dissented in several of those cases.  He has consistently taken the position that laws that limit the power of corporations to make contributions to political campaigns or spend money on advertisements are unconstitutional.  He also has taken the position that limits on the amount of money that may be contributed to political campaigns are unconstitutional.  The only campaign finance laws that he has found to be constitutional are the ones mandating disclosure.  He believes that so long as voters know who is contributing money to a political campaign, they can make up their own minds about whether or not they wish to support that candidate.

     Justice Kennedy has long taken the position that corporations have a constitutional right to spend money during political campaigns.  He dissented in Austin, and in that case he stated:

the Court adopts a rule that allows Michigan to stifle the voices of some of the most respected groups in public life on subjects central to the integrity of our democratic system.

     Justice Kennedy has also repeatedly criticized Buckley v. Valeo for limiting contributions without limiting expenditures.  In Shrink Missouri he noted that wealthy individuals were finding ways around the law by donating "soft money" to political parties and spending money on "issue ads" which were thinly disguised campaign advertisements:

The plain fact is that the compromise the Court invented in Buckley set the stage for a new kind of speech to enter the political system. It is covert speech. The Court has forced a substantial amount of political speech underground, as contributors and candidates devise ever more elaborate methods of avoiding contribution limits, limits which take no account of rising campaign costs. The preferred method has been to conceal the real purpose of the speech. Soft money may be contributed to political parties in unlimited amounts, and is used often to fund so-called issue advocacy, advertisements that promote or attack a candidate's positions without specifically urging his or her election or defeat.  Issue advocacy, like soft money, is unrestricted, while straightforward speech in the form of financial contributions paid to a candidate, speech subject to full disclosure and prompt evaluation by the public, is not. Thus has the Court's decision given us covert speech. This mocks the First Amendment. The current system would be unfortunate, and suspect under the First Amendment, had it evolved from a deliberate legislative choice; but its unhappy origins are in our earlier decree in Buckley , which by accepting half of what Congress did (limiting contributions) but rejecting the other (limiting expenditures) created a misshapen system, one which distorts the meaning of speech.

     However, when Congress acted to close those loopholes regarding "soft money" and "issue ads" in the Bipartisan Campaign Reform Act of 2002, Justice Kennedy still was not satisfied, contending that law closing those loopholes was also unconstitutional.  Dissenting in McConnell, Kennedy took the position that the link between money and political influence is unavoidable, and that it is simply one aspect of a politician's "responsiveness" to constituents:

Favoritism and influence are not, as the Government's theory suggests, avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.

     In Citizens United, Justice Kennedy explains that the fact that independent expenditures by anyone – individuals or corporations – on election advertisements buy access to public officials is actually a hopeful sign.  Kenney reasons that they would not spend that money unless it was intended to influence the public – thus proving that elections are determined by the electorate, not by corporations:

The appearance of influence or access, furthermore, willnot cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. This is inconsistent with any suggestion that the electorate will refuse “to take part in democratic governance” because of additional political speech made by a corporation or any other speaker.  

     In Citizens United, Justice Kennedy overturns Austin and McConnell and finds that all corporations, public and private, for-profit and non-profit, business and advocacy, have the right under the First Amendment to purchase advertisements favoring or opposing candidates during election season.  That Kennedy took this position is no surprise given the strong views against campaign finance legislation that he has expressed in several dissenting opinions over the years.  If he continues to rule in a manner that is consistent with the positions he embraced in those dissents, he is also likely to strike down laws prohibiting corporations and unions from contributing money directly to political candidates, as well as laws that limit the amount of money that individuals may contribute.  The only campaign finance laws that Justice Kennedy seems inclined to uphold are the disclosure laws. 

     In the next post in this series I will contrast Justice Kennedy's approach to constitutional decisionmaking in this case and in general to that of Justice Sandra Day O'Connor.

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

     Until its recent decision in Citizens United v. F.E.C. (2010), the Supreme Court has consistently upheld laws restricting the flow of money to candidates in political campaigns. 

     Campaign finance legislation traces back to 1907 when the federal government enacted the Tillman Act prohibiting corporations from contributing to political campaigns.  In 1947 Congress enacted the Taft-Hartley Act which prohibited unions, as well, from making political contributions.  In 1972 the Federal Election Campaign Act was enacted requiring candidates to disclose the identity of contributors and the amounts that they contributed, and in 1974 Congress amended FECA to limit the amount of money that any single individual could contribute to a candidate or to all candidates in an election cycle. 

     FECA left two very large loopholes in place: the law allowed individuals to contribute money to political parties that was then distributed to candidates, and the law permitted individuals to make "independent expenditures"  for campaign advertisements on behalf of political candidates.  In effect, political parties were "money laundering" for wealthy individuals who wished to make additional contributions to candidates, and the "independent" advertisements supporting specific candidates or attacking their opponents were simply another means of purchasing influence with a candidate.  In 2002, the Bipartisan Campaign Reform Act closed both loopholes by requiring political parties to report the source and amount of any money funnelled to candidates, and imposing the same requirements for any campaign ads broadcast before a primary or general election.  This law, also called "McCain-Feingold," also made the individual contribution limits applicable to money that was given to candidates by political parties or that was spent on any campaign commercials that are broadcast.

   Until this year the Supreme Court had held that these laws were constitutional.  The contribution limits set forth in FECA and contained in a state law were approved in Buckley v. Valeo  (1976) and Nixon v. Shrink Missouri Government PAC (2000), a prohibition on corporate spending on campaign advertisements was upheld in Austin v. Michigan Chamber of Commerce (1990), and the provisions of BCRA eliminating the flow of "soft money" through political parties and campaign advertisements were upheld in McConnell v. F.E.C. (2003). 

Accordingly, before Citizens United, it was constitutional for law to limit the flow of money into political campaign in the following ways:

1.  Corporations and unions may not contribute money directly to candidates or spend money on campaign advertisements for candidates.  Instead, they must create "political action committees," by means of which individuals associated with the corporation or union may contribute money to a fund that is used to make contributions or purchase advertising.

2.  No individual may contribute more than $2,300 per year to any particular candidate for federal office, whether the money is donated directly to the candidate or funnelled through a political party or other advocacy organization.

3.  The source and amount of each contribution must be disclosed.

       It is also important to note what campaign finance laws may not do under the Constitution.  First, the law may not limit the amount of money that politicians spend on their campaigns.  In Buckley v. Valeo, the Supreme Court distinguished campaign contributions from campaign expenditures in two ways.  Campaign expenditures, said the Court, constitute a pure form of speech, while campaign contributions are a form of political association.  In addition, the danger of corruption is far more directly related to campaign contributions than to campaign expenditures.  Accordingly, the government is permitted to regulate campaign contributions, but may not regulate the total amount of money that a candidate spends on an election.

     Second, the campaign finance laws have never attempted to regulate what media corporations say and do, because this would probably be a straightforward violation of freedom of the press.

     Third, unions, corporations, and advocacy organizations have a constitutional right to spend money from their treasuries to run "issue advertisements" at any time – on referenda, for example – so long as these are not attempts to favor one candidate or another.

     Fourth, the limitations on spending for campaign advertising do not apply to company or union newsletters or to the internet.  These organizations are permitted to communicate with their members through normal channels.

     Finally, unions, corporations, and advocacy organizations probably have a constitutial right to form PACs, facilitating a process by means of which their members who are willing may pool their money to contribute to candidates or to purchase advertisements.  In addition, it is possible that advocacy organizations may have the power to contribute money directly to candidates, since their members presumably are willing to make their voices heard in this manner.  However, all of this spending would presumably be subject to the individual contribution limits and reporting requirements of state and federal law.

     Justice Kennedy consistently dissented from the past rulings of the Supreme Court upholding limits on campaign contributions.  In tomorrow's post I will describe the positions that he has taken in these cases.

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

    The Supreme Court today handed down its decision in Citizens United v. Federal Election Commission.  In this case the Supreme Court overrules longstanding precedent and gives corporations the right to spend unlimited amounts of money on campaign advertisements.  Here is a link to the decision on the Cornell website.  The Supreme Court site seems to be overwhelmed.  I will summarize the decision in a later posting.

     This term in the case of United States v. Stevens the Supreme Court will decide whether or not Congress has the power to enact a law prohibiting the production and sale of commercial videos depicting cruelty to animals.  The case presents a number of difficult problems under the First Amendment.  One of the issues that is directly presented by this case is whether the government has a compelling reason to prevent people from viewing images of acts of animal cruelty.  An even larger issue, in my opinion, is whether "obscenity" will remain limited to depictions of sexual conduct, or whether the Court will change the meaning of the term to include graphic images of gratuitous violence.  In this initial posting, however, I discuss a narrow, technical question – the difference between challenging a law "on its face" and challenging it "as applied" to the defendant.

     In 1999 Congress enacted and the President signed a statute entitled "Depiction of Animal Cruelty," codified at 18 U.S.C. 48, making it a crime to create, sell, or possess any video or audio recording of animal cruelty for the purpose of selling that recording for commercial gain.  Here is the entire text of the statute:

(a) Creation, Sale, or Possession.— Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.

(b) Exception.— Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.

(c) Definitions.— In this section—

(1) the term “depiction of animal cruelty” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and

(2) the term “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States.

     Notice that it does not matter where the act of animal cruelty occurred – what matters is where the creation, sale, or possession of the recording occurs.  It is unlawful to create, sell, or possess one of these recordings if the act of animal cruelty it depicts is unlawful in the place where the creation, sale, or act occurred.  Furthermore, the law does not apply to material that has "serious religious, political, scientific, educational, journalistic, historical, or artistic value." 

     According to a posting by Adam Ezra Schulman of the First Amendment Center, the legislative history of the bill indicates that the law was directed at a very narrow problem – the appearance of "crush videos" on the internet, in which women in high-heeled shoes would torture and kill baby rats, mice, and kittens by stepping on them.  When President Clinton signed the bill, he stated that "the Act would prohibit the types of depictions, described in the statute’s legislative history, of wanton cruelty to animals designed to appeal to a prurient interest in sex."  However, the law was not written in a limited fashion.  By its terms it applies to all depictions of animal cruelty, not simply those acts that are performed in a sexually-charged atmosphere.

     Since this law was enacted "crush videos" have disappeared, but animal cruelty has not.  In particular, there is still a large underground market for dogfighting.  Dogfighting is illegal in every state of the union, but some people enjoy breeding and training dogs for these events, others enjoy gambling on them, and still others like to watch.

     Robert J. Stevens of Virginia caters to the tastes of the third category of dogfighting fans – the onlookers.  Although Stevens does not organize or participate in dogfighting events, he collects video recordings of them, edits them, adds commentary, and sells these recordings.  After selling three videos to undercover officers he was arrested and tried in federal curt for violating 18 U.S.C. 48.  Experts for the defense claimed that Stevens'  videos had serious educational or political value, but the jury disagreed and found him guilty.  

     Stevens won on appeal.  By a vote of 10-3, the Third Circuit Court of Appeals ruled that the law was unconstitutional under the First Amendment, and it reversed Stevens' conviction.  Here is a link to a pdf file containing the majority and dissenting opinions of the Court of Appeals. The majority opinion is set forth on pages 1-41 of the document, and the dissent is on pages 42-79.  The United States has appealed the decision of the Third Circuit to the Supreme Court.  

     Stevens persuaded the Court of Appeals that this law, on its face, violates the First Amendment.  Accordingly, according to the brief of the United States, the question presented to the Supreme Court is "whether 18 U.S.C. 48 is facially invalid under the Free Speech Clause of the Constitution.

     It is important to recognize that there is a difference between challenging a law "on its face" and "as applied."  In this initial posting on the Stevens case I expain the difference between challenging a law "on its face" and challenging it "as applied."

     When a defendant challenges a law "as applied" the defendant is claiming that he or she has a constitutional right to engage in the behavior in question, and that while the law may be constitutional in other circumstances, as applied to the defendant himself or herself the law is unconstitutional.  The law may be unconstitutional as applied to the defendant for one of two reasons.  The law may be "vague" as applied to the defendant – for example, Stevens could argue that it is impossible for the average person to determine whether or not dogfighting constitutes cruelty to animals.   Or the defendant may claim that the law is "overbroad" as applied to him.  In this case that would mean that Stevens would claim that he has a constitutional right to produce dogfighting videos.

     To challenge a law on its face is to assert that other people's constitutional rights would be affected by this law, and that is the argument that Stevens is making in this case.  Stevens argues that even if dogfighting videos are not protected by the First Amendment, movies about hunting or programs about bullfighting are constitutionally protected, and because the federal statute might be the interpreted to prosecute people who creae or sell those videos, the law is unconstitutional.

     To succeed in a facial challenge to a law the defendant must prove that there are relatively few circumstances where the law could be constitutionally applied.  To be unconstitutional on its face, a law must be "substantially overbroad" – that is, most of the possible applications of the law would be improper because they would be interfering with people's freedom of expression.  Notice that even someone whose conduct is not protected by the First Amendment may challenge a law on its face. 

     In effect, Stevens is saying, "Even if my commercial videos showing episodes of dogfighting are not constitutionally protected, the federal law used to prosecute me is unconstitutional because as applied to many other persons in other circumstances it would be vague or overbroad."

     Here are links to the ABA Preview report of this case, which is an outstanding article authored by Thomas Baker; Adam Schulman's summary of the legislative history for the First Amendment Center; and a summary of the case from Oyez's "On the Docket."  In subsequent postings I will discuss the merits of the defendant Stevens' First Amendment facial challenge to this law.

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

      United States v. Stevens, the animal cruelty video case, was argued before the Supreme Court on October 6.  The transcript makes for a fascinating read, both from a forensic as well as a substantive perspective.

     Here is a link to the official transcript of oral argument in the case of United States v. Stevens.

     It was a "hot bench" – the justices posed a blizzard of questions, mostly hypotheticals about what kinds of images the government may and may not ban under the First Amendment.  They asked about hunting shows, bullfighting events, movies showing dogfighting, crush videos, and programs showing animals being processed for food.  They asked about photographs depicting women being raped and tortured and a cable channel devoted to showing human sacrifice.

     The antagonists were Neal K. Katyal, Deputy Soliciter General for the United States, and Patricia A. Millett, a Washington attorney.  Both attorneys did an outstanding job, despite their mutual inability to always respond swiftly to the judges' rapid-fire questions.  First up was Mr. Katyal, and here is an exchange he had with Chief Justice Roberts:

CHIEF JUSTICE ROBERTS: What would you — if you could do it in one sentence, what is your test for determining which categories of speech are unprotected by the First Amendment?

MR. KATYAL: In one sentence, if — if — if Congress sees a compelling interest in regulating the means of production and does not target the underlying content, they can — they can regulate a depiction, so long as it leaves alternative mechanisms for that expression in — in place, and that is I think what Ferber -

     With the benefit of hindsight, all the time in the world, and the safe position of the armchair quarterback, I suggest that Mr. Katyal might better have responded:

"Unprotected categories of speech represent those situations in which the speech causes harm directly to another person (defamation or threats), or where serious harm is both likely and imminent if the speech is allowed (incitement to riot and fighting words), or where the speech consists of the depiction of a crime, and by creating a market for these depictions the commercial sale of the speech will have the effect of making the crime more likely to occur (child pornography).  This law, Mr. Chief Justice, outlaws recordings that fall within the third kind of unprotected speech." 

Nothing like second guessing, is there?

     Attorney Millett attempted to avoid answering when Justice Alito asked her whether Congress may make it illegal to create or sell "crush videos" showing women in high heels stomping small animals to death.  Ms. Millett said:

I think — I think there's a — that a properly drawn law could very well, at least in my humble opinion, this Court would have to decide, survive strict scrutiny.

There is also, I suppose, some argument whether it would fit into — you wouldn't need strict scrutiny, you would fit it into an unprotected category of speech like obscenity or it would be the production issue that would — like you have in Ferber.

JUSTICE ALITO: You are not — you are not even willing to say that that could be prohibited?

MS. MILLETT: No, no. I think — I'm saying that there are three alternative ways in which to get to it. My first if one is that not this statute, but under a properly drawn statute -

JUSTICE ALITO: Under a properly drawn statute -

MS. MILLETT: — that might survive scrutiny. I'm not sure you would -

JUSTICE ALITO: Might. I would really like you to tell me whether it would; whether you are willing to concede. Because we are trying to determine whether this is overly broad. And this is the category of activity that Congress particularly targeted. So to me at least it's important to know whether at least as applied to what Congress principally had in mind, the statute could — could pass constitutional muster. If it were, you know, as applied.

MS. MILLETT: I don't — I don't want to, say this statute, because I don't think this statute -but if the statute said, this — I think this Court disagree — it disagrees with me sometimes — but I think this could pass constitutional muster. A statute that says the patently offensive intentional torture and killing of an animal for — designed to appeal to the prurient interest for the purpose of producing the image, I think that would satisfy — I think it would satisfy strict scrutiny. The Court might also decide that it's close enough to obscenity or it's like the Ferber production rationale. That's my position; there are sort of three ways it could be analyzed, a statute like that.

That's not this statute and I don't think we can say that this statute, because Congress has the authority to reach something, that when it throws a blanket net as wide as this one has that this means this statute is the mechanism, a lawful mechanism for getting … [Here Justice Kennedy interrupted her to ask another question.]

     Again, having time to think about it, a more concise and powerful answer to Justice Alito's question would have been to say:

Yes.

     Or,

Yes, your honor, a statute narrowly drawn to prohibit the recording of actual torture or killing of animals for perverse sexual gratification would be constitutional.  Unfortunately, the statute in question, 18 U.S.C. 48, is not narrowly tailored, but instead encompasses depictions of all forms of cruelty to animals.

     Because the defendant Stevens is attacking this law "on its face" (see Part 1 of this series on United States v. Stevens), the bulk of the judges' questions and the majority of the participants' discussion related to what other acts of cruelty to animals this law might be applied to.  Justice Sotomayor asked whether the law could be applied to shows about hunting.  (Page 4)  Justice Scalia asked about programs on bullfighting (pages 10-11).  Justice Breyer added:

"sheep hunting, bear hunting, deer hunting, fox hunting, humane slaughter, and for, I think somewhere I found, the stuffing geese for pate de fois gras."  (Page 13)

     Justice Breyer then added quail hunting to the list (page 13), and Justice Ginsburg contributed cockfighting.  (Page 15).  Justice Stevens asked about hunting with a bow and arrow out of season.  (Page 16)  The answer to each of these questions is to say that the depiction could be banned only if what was being shown met three criteria: (1) the act being depicted constituted cruelty to animals; (2) the act is illegal in the jurisdiction where the recording was created, sold, or possessed; and (3) the recording has no serious political, educational, or scientific value.  Normal hunting shows do not meet any of these criteria, let alone all three. 

     Justice Ginsburg then mercifully tried to put this line of questioning out of its misery, stating:

Have we finished with the category of fights?  (Page 16)

     The discussion then turned to an even more serious subject – depictions of torture and slaughter of human beings.  Justice Sotomayor asked about the case of American Booksellers v. Hudnut (1985) (summarily affirmed by the Supreme Court in 1986), in which the Seventh Circuit Court of Appeals declared unconstitutional a municipal ordinance that attempted to outlaw images of women being degraded or tortured.  (Page 6-7)  Justice Scalia asked about the constitutional status of the slasher movies that appear every Halloween.  (Page 22)  Justice Alito inquired about the legality of videos of gladitorial constests.  (Page 23)  Justice Alito asked about depictions of human sacrifices:

what about people who –who like to see human sacrifices? Suppose that is legally taking place someplace in the world. I mean, people here would probably love to see it. Live, pay per view, you know, on the human sacrifice channel.  (Page 46).

Justice Scalia asked about a new Adolph Hitler, and the extermination of whole populations.  (Page 47)  Other justices raised questions about "snuff videos" and "the ethnic cleansing channel."  (Page 48).  Quite clearly the Court is wondering whether some depictions of violence against human beings may be prohibited … in effect, whether violence should be considered to be a form of obscenity.  Chief Justice Roberts wanted Ms. Millett to answer this question:

JUSTICE ROBERTS: I'm still looking for your answer to Justice Alito's hypotheticals. Can Congress ban the human sacrifice channel or not?

MS. MILLETT: I — the — I think — I — I will start by saying — no. Let's start and see. Maybe — maybe it won't work, but I think -

     Attorney Millett's initial response accurately reflects the ambivalence of the American people and the law towards depictions of violence.  The fact of the matter is that as a society we haven't been willing to answer that question.  We have made the explicit sex act taboo, but graphic scenes of torture, mutilation, and murder are simply routine "entertainment."  Towards the end of her argument, Millett ably contends that laws prohibiting depictions of violence which are enacted, not because Congress is attempting to stamp out the activity in question, but merely because society finds the images repulsive, violate the First Amendment.  (Pages 54-55).  On rebuttal, Attorney Katyal agreed.  (Page 57)

     This case broaches the question of depictions of gratuitious violence in an indirect manner.  With a focus on cruelty to animals rather than cruelty to other people, United States v. Stevens challenges us to come up with good reasons to allow people to make money from the actual suffering of other creatures.  It is a discussion that is long overdue.

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

     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?

     Here are some useful links to keep you up to date on the Prop 8 trial.

1.  A summary of the procedural aspects of the trial from my Constitutional Law website;

2.  Plaintiffs' trial brief;

3.  Defendants' trial brief;

4.  Alliance Defense Fund website, with daily updates on the trial from the standpoint of supporters of Prop 8;

5.  lgbt pov website on the trial, with daily updates from the standpoint of opponents of Prop 8.

     In addition, here are links to a Newsweek article by Eve Conant on the collaboration of Ted Olson and David Boies as attorneys for the plaintiffs; a speech by Jenny Pizer of Lamda Legal's National Marriage Project; Ted Olson's Newsweek article "The Conservative Case for Gay Marriage;" and a posting by Amy Ridenour of the National Center for Public Policy Research rebutting Olson. 

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

     By a vote of 5-4 along the usual ideological lines, the Supreme Court today overturned the order of the trial judge that would have allowed the Prop 8 trial to be broadcast.

     Until late December of 2009 Civil Local Rule of Court 77-3 of the United States District Court for the Northern District of California prohibited the use of cameras in court – neither still photos nor broadcast of proceedings were permitted.  On December 23, Judge Vaughn Walker issued notice that he was amending the local rule to allow broadcast of trials in the discretion of the court.  On December 31, the judge invited the public to comment on the amendment to Rule 77-3.  On January 8, Judge Walker issued an order amending the rule and stating that the Prop 8 trial would be broadcast.  The defendants requested a stay from the United States Supreme Court that would prohibit the trial from being broadcast.  Today the Supreme Court ruled in favor of the defendants, and ruled that cameras would not be allowed. 

     Here is a link to the opinion of the Court.  The majority opinion of the Supreme Court is "per curiam," meaning that it was not signed by any single judge, but it was joined by Justices Scalia, Thomas, Kennedy, Alito, and Chief Justice Roberts.  The four dissenters were Justices Stevens, Breyer, Ginsburg, and Sotomayor.  The Court split along the usual conservative/liberal divide.

     The majority based its ruling on procedural grounds – it found that the district court had amended its local rule of court banning cameras without giving sufficient notice to the public to object to the change.  Here is the key portion of the majority's opinion:

Federal law … requires a district court to follow certain procedures to adopt or amend a local rule.  Local rules typically may not be amended unless the district court "gives appropriate public notice and an opportunity for comment."  28 U.S.C. 2071(b).

    This federal statute – the Rules Enabling Act - grants the federal courts broad discretion to adopt or amend local rules of court, but as the majority states, the statute provides that the courts must give the public appropriate notice and opportunity for comment, and the Supreme Court found that the five business days allowed by Judge Walker was not long enough.

     Any person who asks a court to issue an injunction must persuade the court that that person will suffer "irreparable harm" if the injunction not issued, and in this case the defendants claimed that their witnesses might refuse to testify, or be discouraged from testifying fully, if the trial is broadcast.  The Supreme Court sided with the defendants on this question, citing 71 news reports that supporters of Prop 8 had been harassed by gay rights activists.  The Court stated:

The balance of equities favors applicants.  While applicants have demonstrated the threat of harm they face if the trial is broadcast, respondents have not alleged any harm if the trial is not broadcast.

     Finally, the majority reasoned that even if Local Rule 77-3 had been properly amended, this case would not be a good candidate for broadcast because it is a "high-profile, divisive" case. 

     The dissenting opinion by Justice Breyer contends that this case does not meet even a single requirement for intervention by the Supreme Court.  The dissent points out that Judge Walker initially raised the issue of allowing the trial to be broadcast on September 25, 2009, and that none of the parties objected at that time.  The Ninth Circuit had already approved the use of cameras in courtrooms on a trial basis, and Judge Walker's order merely brought his local rule of court in line with Ninth Circuit policy.  Before January 8 the trial court received over 138,000 comments on the proposed amendment, almost all of them approving of the change to the rule. 

     Justice Breyer also comments on how unusual it is for the Supreme Court to review the decision of a federal court to amend its local rule of court.  Breyer states:

For the past 80 years, local judicial administration has been left to the exclusive province of the Circuit Judicial Councils, and this Court lacks their institutional experience.   …  I have not been able to find any other case in which this Court has previously done so.

     Breyer quotes Justices Scalia and Rehnquist as having stated in a previous cases,

I do not see the basis for any authority to supervise lower courts.

     Breyer also challenges the finding of the majority that the broadcast of the trial will cause irreparable harm.  Forty-two states and two federal district courts grant judges the discretion to permit the broadcast of trials, and there is no empirical data supporting the assertion that such broadcast is harmful.  Nor are the witnesses likely to suffer any harm as a result of broadcasting the trial.  The defendants' witnesses are paid experts who are already publicly identified with their positions in opposition to same-sex marriage – and who, indeed, have actively sought this recognition.  Hundreds of national and international newspapers are already covering the trial.  Furthermore, Breyer contends that the interest of the public in viewing the trial outweighs any potential harm to the witnesses, quoting this statement from Justice Brennan's opinion in Nebraska Press Association v. Stuart:

If the public could see how the judicial process works, they would take a somewhat different view of it.

   The dissenters note that the remedy of mandamus is "a drastic and extraordinary remedy reserved for really extraordinary causes," and they suggest that Judge Walker's decision to allow broadcast of the Prop 8 trial does not qualify as extraordinary.

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

     Here are some links to information about the Prop 8 trial, and some analysis to put the trial in perspective.

     In May of 2008 in the case entitled In re Marriage Cases the California Supreme Court ruled that it was unlawful under the California Constitution for the State of California to establish two equivalant legal relationships but to call them by different names – "marriage" for heterosexual couples, and "domestic partnerships" for gay and lesbian couples.  In the November elections later that same year the people of the State of California narrowly voted to approve Proposition 8, an amendment to the state constitution that provides:

Only marriage between a man and a woman is valid or recognized in California.

     Proposition 8 in effect overruled the California Supreme Court's decision in the Marriage Cases.

     Attorneys Ted Olson and David Boies, who were adversaries in Bush v. Gore, the case that decided the 2000 presidential election, have brought suit in federal district court in California challenging the constitutionality of Proposition 8.  They contend that Prop 8 violates both the Due Process Clause and the Equal Protection Clause of the Constitution of the United States.

     Trial is underway in the case – the attorneys have made their opening statements and witnesses are testifying about the benefits and detriments of extending marriage rights to gays and lesbians.  But this is not a "trial" in the traditional sense.  The trial judge has no authority to make "findings of fact" on the question of whether it will be beneficial to gay and lesbian families to be admitted to the institution of marriage, or whether it will harm heterosexual couples' marriages if that were to happen.

     The reason that this is not a "trial" but rather a "hearing" is that all of the questions before the trial court are questions of law, not questions of fact.  Questions of law are decided by judges, not by juries, and it isn't even necessary for the parties to call any witnesses or introduce any evidence.  Both the plaintiffs and the defendants could, if they wish, rely entirely upon their pleadings and briefs, and the judge could take judicial notice of the facts and policies surrounding gay marriage.  Furthermore, whatever conclusions the trial court may reach in this case, the standard of review on appeal will be de novo, meaning that the appellate courts will be free to accept or reject the findings of the trial court.  The witnesses and evidence will no doubt be helpful to the courts in determining the rights of gay and lesbian couples, but neither the trial court nor the appellate courts will be "bound by the record" regarding the evidence as they are in the usual case.

     Here is the plaintiffs' trial brief setting forth arguments that Prop 8 is unconstitutional; plaintiffs' list of 37 witnesses whom they may call to testify; and a liveblog of the proceedings from Teddy Partridge of The Sentinal.

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

     "Net neutrality" is the rule that internet service providers should not be permitted to promote their own information services by blocking or slowing down the transmission of information from other sources – it is the principle that information should be available to all users on an equal basis.  Here is a summary of where "net neutrality" presently stands in the courts and in Congress.

     On October 19, 2007, Peter Svensson of the AP reported that Comcast, a major internet service provider, was interfering with peer-to-peer applications allowing file-sharing of movies or television shows and audio/video connections such as Skype by surreptitiously breaking connections between users.  Comcast had previously assured the F.C.C. that it was not engaging in this conduct, but after the publication of Svensson's article it was forced to admit that it had.  This was in violation of a "policy statement" that had been issued by the F.C.C. prohibiting discrimination of this sort by ISPs.  As a result, the internet consumer organization Public Knowledge filed a complaint against Comcast before the Federal Communications Commission.  Comcast agreed to stop this practice, but the F.C.C. wanted more – it entered an order requiring Comcast to disclose to the agency any other regulation of internet traffic that it engages in.  Comcast filed a petition in the United States Circuit Court of Appeals for the District of Columbia challenging both the authority of the F.C.C. to regulate the internet, and the procedure that the F.C.C. followed in entering its order against Comcast.  Here is a link to the brief filed by Comcast, in which Comcast claims that when Congress enacted deregulation legislation it stripped the F.C.C. of the power to oversee internet service providers.  At page 15 of its brief Comcast states:

"There was simply no federal law to interpret, enforce, or apply against Comcast."

     The F.C.C. contends in its brief that Congress did leave it "ancillary jurisdiction" to regulation information services, and that its order against Comcast was justified in light of Comcast's secretive conduct and misleading statements to the F.C.C.

     The case was recently argued before a three-judge panel of the D.C. Circuit, and in this report by John Poirier of Reuters published January 8 it appeared from the judges' questions and comments that the panel may agree with Comcast that the F.C.C. presently lacks authority to issue or enforce net neutrality rules against internet service providers.  Here is another informative article about the case by Todd Shields of Bloomberg.

     In addition to the straightforward question of whether the F.C.C. has authority to regulate internet service providers, the Comcast case presents a number of difficult and fascinating problems of adminstrative law, among them the following:

1.  How much authority does the F.C.C. have to determine its own jurisdiction?

2.  Were the F.C.C. policy guidelines sufficiently precise to notify Comcast what the law was, and were these guidelines enforceable?

3.  Was it proper for the F.C.C. to have proceeded against Comcast by way of an adjudication, rather than to have followed a rulemaking procedure?

     All of these issues could be rendered moot if Congress steps in and adopts legislation codifying net neutrality and authorizing the F.C.C. to enforce the principle.  Representative Edward Markey of Massachusetts has introduced legislation that would do this.  The bill is called the Internet Freedom Preservation Act of 2009 (H.R. 3458).  Here is a link to information about the bill from Open Congress.  In its summary of the bill, the Congressional Research Service states that the law:

Makes it the duty of each Internet access service provider to: (1) not block, interfere with, discriminate against, impair, or degrade the ability of any person to use an Internet access service; (2) not impose certain charges on any Internet content, service, or application provider; (3) not prevent or obstruct a user from attaching or using any lawful device in conjunction with such service, provided the device does not harm the provider's network; (4) offer Internet access service to any requesting person; (5) not provide or sell to any content, application, or service provider any offering that prioritizes traffic over that of other such providers; and (6) not install or use network features, functions, or capabilities that impede or hinder compliance with these duties.

      The Internet Freedom Preservation Act would require the F.C.C. to issue regulations enforcing these principles.  The law also provides that internet service providers must be allowed to engage in "reasonable service management."

     On October 22, 2009, United States Senators Byron Dorgan (D-ND) and Olympia Snowe (R-ME) issued a press release in support of the F.C.C.'s authority to enforce net neutrality.  They concluded by stating:

Dorgan and Snowe were the lead sponsors of network neutrality legislation in the Senate during the last session of Congress. Now that the FCC is taking action to ensure open access to the Internet, the two senators say they will continue to monitor the rulemaking process, and are open to introducing legislation to ensure network neutrality safeguards, if necessary.

“Americans from Bismarck to Bangor want to know that they will have open access to the Internet,” Dorgan and Snowe added. “To keep the Internet open and accessible, we intend to follow the FCC’s rulemaking process very closely.”

     If the F.C.C. should lose its case against Comcast, the House and Senate will probably move very quickly to enact this legislation.

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

     The Centers for Medicare and Medicaid Services has issued another report estimating the financial and coverage effects of the health care reform bill as adopted by the Senate on December 24, 2009.  The good news is that CMS believes that the Senate bill will expand health insurance coverage to 34 million more people.  The biggest disappointment is its conclusion that prevention and wellness programs will not reduce the overall cost of medical care. 

     Here is the new CMS report as posted by Modern Health Care.  The report estimates the effect that the health care reform bill adopted by the Senate would have on federal expenditures and total health care expenditures, as well as predicting how many more people will be covered by health insurance. 

     The report states that the Senate bill would extend health insurance coverage to an additional 34 million people.  One third of the gain is achieved by expanding Medicaid and CHIP to ten million more people, and two-thirds by opening up "exchanges" for over 20 million persons to purchase non-group health insurance, most of whom will qualify for government subsidies.  (Page 3 of the report).  The 34 million increase in persons with health insurance is one million more than would have received coverage under the prior version of the bill.  (See Page 3 of the December 10, 2009 CMS report on the November 18 Senate bill.) 

     Roughly 23 million people would remain uninsured, instead of over 56 million people under current law.  CMS explains who those 23 million people are:

For the estimated 23 million people who would remain uninsured in 2019, roughly 5 million are undocumented aliens who would be ineligible for Medicaid or the Exchange coverage subsidies under the proposed legislation. The balance of 18 million would choose not to be insured and to pay the penalty (if applicable) associated with the individual mandate. For the most part, these would be individuals with relatively low health care expenses for whom the individual or family premium would be significantly in excess of any penalty and their anticipated health benefit value.  (Page 7 of CMS report).

     CMS estimates that 67% of persons eligible to purchase insurance through the Exchange would do so.  According to CMS it is people within a narrow income range – about between 365% and 493% of the federal poverty level – who will be most likely to forego coverage.  People earning just under 400% of the federal poverty level will qualify for only small subsidies, and those earning more than 400% of FPL will receive no subsidies.  If these people are relatively healthy, they may choose to pay the penalty of $750 per person rather than purchase health insurance.  Furthermore, if the cost of health insurance would exceed 8% of their income, they would not even have to pay the penalty.  (Page 7)

     CMS also estimates that the final Senate bill will be about $80 billion cheaper than the previous bill was – spending $40 billion less on coverage, and saving $40 more on Medicare and Medicaid over the ten year period 2010-2019.  (See page 2 of each CMS report.)  CMS believes that the proposed law would have very little impact on total health care expenditures.  On the one hand this is bad news – we have to bring down the cost of health care for our economy to remain competitive.  One the other hand this is good news – we will be covering far more people with much better health insurance for about the same amount of money.

     One of the significant disappointments in the report is that the CMS does not believe that any of the bill's cost-cutting measures will have a significant effect on health care expenditures.  CMS predicts that Comparative Effectiveness Research – identifying the most effective and most efficient drugs and practice protocols – will save only about $8 billion over ten years, and that none of the other cost-cutting measures will any appreciable effect.  Most disappointing of all is that CMS predicts that no savings will result from the law's emphasis on preventive care and wellness programs.  CMS states:

There is no consensus in the available literature or among experts that prevention and wellness efforts result in lower costs. Several prominent studies conclude that such provisions – while improving the quality of individuals' lives in important ways – generally increase costs overall. For example, while it is possible that savings can be achieved for many people by diagnosing diseases in early stages and promoting lifestyle and behavioral changes that reduce the risk of serious and costly illnesses, additional costs are incurred as a result of increased screenings, preventive care, and extended years of life.  (Page 13)

     Now there's a pessimistic atttude.  CMS believes that if we make better lifesyle choices and become healthier as a result, we will live longer and will therefore incur greater medical expenses.  I suppose CMS's advice for us to reduce total health care expenditures is to "Eat, drink, and be merry!" 

Visit Professor Huhn's website on health care financing reform for links to information about proposed legislation, studies and reports, public agencies, and private organizations concerned with this issue.

     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.

     We have seen in the two previous posts that CLS faces an uphill battle against Hastings Law School in its First Amendment claims based on "expressive association" and "equal access to a public forum."  Under existing doctrine, it will be equally difficult for CLS to win with yet another First Amendment claim under the Free Exercise Clause, for reasons discussed below.  That is why CLS may get creative and try to establish new doctrine – that discrimination by a religious body is different from and more protected than discrimination by non-religious advocacy organizations.

     In order to become a member of CLS, a Hastings Law Student must make the following "statement of faith":

Trusting in Jesus Christ as my Savior, I believe in:

• One God, eternally existent in three persons, Father, Son and Holy Spirit.

• God the Father Almighty, Maker of heaven and earth.

• The Deity of our Lord, Jesus Christ, God’s only Son conceived of the Holy

Spirit, born of the virgin Mary; His vicarious death for our sins through

which we receive eternal life; His bodily resurrection and personal return.

• The presence and power of the Holy Spirit in the work of regeneration.

• The Bible as the inspired Word of God.

     Furthermore, the district court found:

CLS will not permit students who do not sign the Statement of Faith to become members or officers. CLS also bars individuals who engage in “unrepentant homosexual conduct” or are members of religions that have tenets which differ from those set forth in the Statement of Faith from becoming members or officers.

     Hastings Law School allows CLS the use of its classrooms for meetings as well as access to bulletin boards and audio-visual equipment.  But because CLS refuses to admit members on a non-discriminatory basis, Hastings does not recognize CLS as an official student organization, it does not allow CLS to use the name or logo of the law school, and it does not give CLS any funding.  

     CLS contends that Hasting's actions infringe upon the student organization's right to freedom of religion under the Free Exercise Clause of the First Amendment.  It will be difficult for CLS to establish this claim for a number of reasons.

     First, under the case of Sherbert v. Verner (1963), to make out a claim under the Free Exercise Clause an individual or a group must prove that the government has imposed a "substantial burden" upon the practice of religion.  That basic element may be missing in this case.  Hastings Law School has done nothing to make CLS's religious exercises illegal, difficult, or expensive.  It has simply declined to endorse CLS on account of the fact that the club is not open to gays, lesbians, and persons of other religions. 

     Second, under the same case, even if Hastings' non-discrimination policy constitutes a "substantial burden" on the exercise of religion, that policy is constitutional if it serves a compelling governmental interest."  Hastings will argue that it has a compelling governmental interest in preventing discrimination on the basis of religion and sexual orientation by student organizations that it indorses, and in light of the fact that Hastings also has First Amendment rights to define its educational mission, this, too, is a powerful argument.

     As if Sherbert v. Verner were not a high enough hill to climb, the Supreme Court threw some more roadblocks in the way of Free Exercise claims in the case of Employment Division v. Smith, a 1988 decision written by Justice Antonin Scalia.  In that case the Supreme Court ruled that the plaintiff must also prove either that the law or official policy is not a rule of "general application," that the law or policy was "directed at religious practice," or that the law or policy affects both religious exercise and some other constitutional right.  If any of those three elements are present, then Sherbert v. Verner applies.  If not, then the governing standard is the low-level rational basis test, and the law or policy will be upheld if it has any tendency to serve a legitimate governmental interest.

     Hastings' non-discrimination policy is a rule of general application – it applies to all student organizations that desire official recognition.  It is not directed at religion – prior to 2004, when it allowed Hastings students of any religion or sexual orientation to join, CLS was a recognized student organization.  Finally, as we saw in the previous posts, the law school's policy may not violate the student organization's right to freedom of expression.  The Supreme Court may well find that CLS's Free Exercise claim is barred by the Smith case, and may not even consider whether the policy amounts to a "substantial burden" on the exercise of religion under Sherbert.

     Under existing law, CLS will have a hard time proving that Hastings' non-discrimination policy violates the First Amendment.  CLS will have to get creative.  Its best chance lies in persuading the Supreme Court that discrimination by a religious organization is different from discrimination by other types of organizations.  I will discuss that idea in tomorow's post.

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

     Another argument that CLS will advance in support  its claim that Hastings Law School should be compelled to recognize it as an official student organization is its contention that the law school is interfering with its rights as an "expressive association."  Here is a history of that doctrine, and a summary of two of the most relevant cases.

     Much of constitutional law grew out of the civil rights movement – more specifically, in reaction to the attempt of several southern states to quash the movement.  For example, the first appearance of the "state action" doctrine – the idea that private organizations might have engaged in "state action," and that its conduct was therefore subject to the requirements of the Constitution – came in the 1944 case of Smith v. Allright, because the Texas Democratic Party had excluded blacks from membership.  The "public forum" cases owe much to cases like Edwards v. South Carolina (1963), holding that civil rights marchers could not be arrested for peacefully protesting on the grounds of the statehouse.  The "actual malice" test under the First Amendment originated in the 1964 case of New York Times v. Sullivan, when southern officeholders, with assistance of the state courts, sought to silence northern newspapers from covering the civil rights movement through a series of libel actions.  And modern Equal Protection doctrine stems from the case of Brown v. Board of Education (1954).

     So, too, with the right of expressive association.  In the 1950s and early 60s southern states sought to silence and suppress the N.A.A.C.P., which had undertaken Brown and other successful civil rights litigation.  The State of Alabama ordered the organization to disclose its membership lists, which would have undoubtedly subjected its members to harrasment and violence.  In the case of N.A.A.C.P. v. Alabama (1964), the Supreme Court ruled that the group did not have to disclose to the state who its members were – that the organization has a right to "political association" - a right which is derived from the First Amendment. 

     In subsequent years the right of association has taken other forms - "intimate association," the right to enter into intimate and personal relationships, and "expressive association," the right to band together with other persons for the purpose of expressing certain values or advocating a point of view.  We deal here with the right of expressive association.  And in an ironic twist, the First Amendment right of expressive association has grown out of the enforcement of civil rights acts against private organizations.

     One of the ways in which the right of expressive association may be affected is when the state or federal government adopts non-discrimination laws which prohibit private entities from discriminating.  If the private organization is a business or a landlord the courts have no difficulty in ruling that the private party must obey the civil rights law.  Private businesses do not have a constitutional right to engage in employment discrimination or treat customers differently because of their race, and individual homeowners do not have a constitutional right to refuse to sell their home to someone an account of the buyer's religion. 

     But the question becomes much closer when non-discrimination laws attempt to prohibit private fraternal or social organizations from discriminating in their membership policies, particularly in circumstances where the organization was formed to exemplify certain values or to express a particular point of view.  In those circumstances the First Amendment comes into play, and the courts must determine whether or not the interest of the government in preventing acts of discrimination is sufficiently strong to outweigh the interest of the group in being permitted to express itself in word or by deed. 

     Two cases serve to demonstrate the reach of the doctrine.  In Roberts v. Jaycees (1984), the State of Minnesota enforced its Human Rights Act – a non-discrimination law – against the Jaycees, a civic organization that did not admit women to membership.  The Jaycees were unable to articulate any particular reason why they chose not to admit women.  The organization was not pursuing a gender-based agenda, and in fact women were often present at meetings and participated in many activities of the group.  Under these circumstances the Supreme Court found that the state was not interfering with the ability of the Jaycees to express itself, and the Court upheld the appliacation of the non-discrimination law to the Jaycees.

     In contrast, in the case of Boy Scouts of America v. Dale (2000), the Supreme Court ruled that the private organization had the right, under the Constitution, to discriminate in its hiring policy, because the organization stood primarily for certain values.  The Boy Scouts of America revoked the membership of James Dale, an Assistant Scoutmaster who was both gay and an advocate for gay rights.  Dale challenged this action as a violation of New Jersey's public accommodations law, which prohibits discrimation on the basis of several factors, including sexual orientation.  The Boy Scouts contended that the state court's decision violated its First Amendment right to expressive association – that among the values that it sought to inculcate in young men was heterosexuality.  The Supreme Court found that if the Scouts had been required to retain Mr. Dale as a member, it would substantially interfere with the message that the organization was attempting to instill in young people.  The New Jersey non-discrimination law, as applied to the Boy Scouts, violated the organization's right to expressive association.

     The CLS will argue that Hastings Law School is trampling on the organization's right to freedom of expressive association by requiring it to admit persons who do not adhere to its religious principles, including sexually active gays and lesbians.  The principal difficulty with this argument is that Hastings Law School does not stand in the position that the State of Minnesota or the State of New Jersey did in Roberts and Dale – Hastings Law School does not, and cannot, make it illegal for CLS to discriminate on the basis of religion or sexual orientation.  Nor has the law school denied CLS the use its bulletin boards, meeting rooms, or audio-visual equipment.  Instead, the law school has refused to endorse the organization's message by allowing CLS to use the Hastings name and logo, and it has refused to provide CLS with funding; the Supreme Court may find that these actions are not the equivalent of a state government making a discriminatory membership policy illegal.

     In tomorrow's post I will discuss the student organization's Free Exercise claim against the law school.

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

     One of the strongest arguments that the Christian Legal Society will assert in its case challenging Hastings Law School's refusal to recognize it as an official student organization is based upon a series of Supreme Court decisions establishing the rights of student or community groups to equal access to school funding and facilities.  The CLS reliance on these cases is undermined, however, by two facts.  First, Hastings allows CLS to meet on school property – it simply denies CLS funding and the right to use the Hastings name and logo.  Second, Hastings does not prohibit "religious organizations" or "religious activities" among its student organizations – instead it refuses to recognize student organizations that discriminate in their membership policies on the basis of several factors, including religion and sexual orientation.

     There are five principal decisions of the Supreme Court that govern student access to campus facilities and funding.  Each case is briefly described below.

Healy v. James (1972)

     The Students for a Democratic Society (SDS) sought recognition as an official student organization at Central Connecticut State College, and the college not only denied official recognition but refused to permit the organization to meet on campus.   The President of the college justified his decision on the ground that the SDS had disrupted classes at many colleges and universities nationwide, and because "the organization's philosophy was antithetical to the school's policies" of academic freedom.  The Supreme Court ruled that it was unconstitutional for the college to refuse to recognize the SDS - and to deny the group the opportunity to meet on campus, which it called the "most important" aspect of official recognition – solely because the group's beliefs.  However, the Court did hold that the College could withhold recognition if the group refused to agree to abide by the reasonable rules and regulations of the university (such as not disrupting classes).  The Court stated:

A college administration may impose a requirement, such as may have been imposed in this case, that a group seeking official recognition affirm in advance its willingness to adhere to reasonable campus law. Such a requirement does not impose an impermissible condition on the students' associational rights. Their freedom to speak out, to assemble, or to petition for changes in school rules is in no sense infringed. It merely constitutes an agreement to conform with reasonable standards respecting conduct. This is a minimal requirement, in the interest of the entire academic community, of any group seeking the privilege of official recognition.

Widmar v. Vincent (1981)

     The University of Missouri at Kansas City had a regulation prohibiting the use of campus buildings or facilities ""for purposes of religious worship or religious teaching."  The regulation was challenged by Cornerstone, a student organization whose official recognition was withdrawn by the University.  The Supreme Court ruled that the University's policy was content-based and therefore subject to "strict scrutiny."  The University contended that the policy satisfied strict strict scrutiny because it was necessary to serve a compelling governmental interest – that is, its duty under the Establishment Clause to remain neutral with respect to religion.  The Court ruled that an "equal access" policy allowing religious groups to meet on campus on the same basis as other groups would not violate the Establishment Clause, and that accordingly the Establishment Clause was not a sufficient reason to jusify the school's policy against religious organizations.

Lamb's Chapel v. Center Moriches Union Free School District (1993)

     A public school district allowed social and civic organizations to use its buildings after school hours, but it prohibited a religious organization, Lamb's Chapel, to show a film series about family values and child-rearing from a christian perspective.  The Court ruled that the school district was under no duty to open its facility to the community, but that once it did it had created a "public forum," and the school could not allow some groups to use the facility to discuss family issues and bar others based upon the content of what those groups would discuss.  To do so, said the Court, was to engage in "viewpoint discrimination" - and viewpoint discrimination is strictly prohibited by the First Amendment.  Here is the Court's own summary of its decision in Lamb's Chapel, as set forth in a later case:

[A] school district had opened school facilities for use after school hours by community groups for a wide variety of social, civic, and recreational purposes. The district, however, had enacted a formal policy against opening facilities to groups for religious purposes. Invoking its policy, the district rejected a request from a group desiring to show a film series addressing various child-rearing questions from a "Christian perspective." There was no indication in the record in Lamb's Chapel that the request to use the school facilities was "denied for any reason other than the fact that the presentation would have been from a religious perspective." Our conclusion was unanimous: "[I]t discriminates on the basis of viewpoint to permit school property to be used for the presentation of all views about family issues and child-rearing except those dealing with the subject matter from a religious standpoint.

Rosenberger v. University of Virginia (1995)

     Wide Awake Productions (WAP) was a student organization that published a magazine offering Christian views and commentary on social issues and current events.  WAP applied for funding which was available from student activity fees at the University of Virginia.  The University had a rule prohibiting SAF funding for any "religious activity" on the ground that the University, which is a state institution, wished to avoid any violation of the Establishment Clause.  The Court ruled in favor of WAP on the ground that the SAF funding, just like the use of facilities in Lamb's Chapel, constituted a "public forum" that the University must allow access to in a non-discriminatory manner.  The Court stated:

The SAF is a forum more in a metaphysical than in a spatial or geographic sense, but the same principles are applicable.  … We conclude … that here, as in Lamb's Chapel, viewpoint discrimination is the proper way to interpret the University's objections to Wide Awake. By the very terms of the SAF prohibition, the University does not exclude religion as a subject matter but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints.

Board of Regents of the University of Wisconsin v. Southworth (2001)

     In Southworth, a group of students contended that it was a violation of their First Amendment rights for the university to charge a mandatory student activity fee to support student organizations – organizations whose messages students might disagree with.  The Court ruled:

The First Amendment permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech if the program is viewpoint neutral.

Summary 

     CLS will argue that the foregoing cases support its claim that the refusal of Hastings Law School to officially recognize the student group is unconstitutional.  CLS will contend that the decision of the law school is not "viewpoint neutral," and is therefore in violation of decisions like Lamb's Chapel, Rosenberger, and Southworth.  The law school will contend that, unlike cases like Healy or Widmark, it allows CLS to meet on campus and therefore is granting CLS "equal access" to its facilities.  Furthermore, the law school will argue that its decision to withhold official recognition from CLS was based upon the organization's conduct, not its speech – and that Healy allows this.  Hastings will claim that it is not discriminating against CLS based upon the "content" or "viewpoint" of the ideas that CLS wishes to express – that instead, the law school has denied CLS official recognition because of its conduct in failing to open membership in CLS to all Hastings students on a non-discriminatory basis; specifically, that CLS discriminates on the basis of religion and sexual orientation.

     In tomorrow's post I will discuss the "expressive association" decisions and their relation to this case.

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