Vexatious ADA Litigants Back in Business in California

On Friday, the California Supreme Court gave vexatious wheelchair litigants their groove back in Munson v. Del Taco, Inc., overturning an earlier 2006 decision in Gunther v. Lin that required a showing of intent in order to qualify for the minimum $4,000-per-infraction awards. Gunther had held that California's Unruh Act, the California civil rights law, required a showing of intentional discrimination: the mere fact of disparate impact on a suspect class was not enough. However, in 1992, the Legislature amended the Civil Code to make violations of the ADA also a violation of the Unruh Act. Thus it happened that, when serial plaintiff David Gunther paid a visit to Lin's Jack-in-the-Box restaurant, he experienced the following violations of his newly incorporated civil rights: uninsulated pipes under the bathroom sink, and a mirror mistakenly left by an employee (without Lin's permission) higher than the required specifications.

As the Santa Ana Court of Appeal noted, ADA violations are hyper-technical, and practically impossible not to violate at some point or another:

Other ADAAG's [ADA Architectural Guidelines], however, do not implicate any intentional conduct at all, such as the requirement that the pipes underneath the sink in a public restroom be wrapped with insulation, or the remarkable requirement that any visual alarms be exactly 80 inches above the highest floor level within the space or exactly six inches below the ceiling, whatever is lower. For example, a customer using a wheelchair who entered a public restroom before a contractor had finished working on a remodel of it and had gotten around to wrapping insulation on the pipes under the sink would find a restroom in “violation” of the ADA even though the owner was remodeling the restroom precisely in order to ensure that wheelchair customers had equal access to its toilet facilities.

In fact, the ADA itself does not even permit private litigation. That would seem, well, stupid. And so the court charitably declined to impute such stupidity onto our own Legislature.

And it was precisely because it was so easy for businesspeople—particularly small businesspeople—to inadvertently violate the ADA that Congress limited the circumstances under which they might be sued for such a technical violation. Under the ADA, a private individual suing a businessperson has no right to damages absent intentional discrimination. . . .

By contrast with the federal ADA, California's section 52 allows private parties to seek damages, and in fact even provides for an automatic minimum penalty—now up to $4,000—when the statute is triggered.

. . . .

To interpret what is now subdivision (f) of section 51 to provide for automatic penalties for even the most technical violations of the ADAAG's would contravene the rule that no statute should be interpreted so that it becomes redundant, in this case the statute made redundant being section 54.3. . . .

. . . .

Private enforcers of the ADA are presented with a choice between the strict liability regime of section 54.3 or the regime requiring intentional discrimination of section 52. The alternative interpretation, as a number of federal courts have already indicated (e.g., Doran v. Del Taco, Inc. (C.D.Cal. 2006) 2006 WL 2037942), has led to unconscionable abuses.

Indeed, in Gunther, there was no intentional discrimination. Gunther even conceded as much.

There is also no question that defendant Lin never intended to violate the ADA. In his answer to Gunther's complaint Lin claimed that Gunther had entered the restroom “before our handyman had finished his work” of wrapping insulation around the pipe under the sink. Moreover, normally the restroom never has mirrors for anybody (because the mirror was subject to vandalism); an employee simply hung one by mistake.

The Supreme Court noted that Gunther's reading of the statute was a reasonable one.

As a purely linguistic matter, therefore, another reasonable interpretation of section 51, subdivision (f) is that it makes all violations of the ADA violations of section 51 but, together with section 52, authorizes a private action for damages under the Unruh Civil Rights Act only for ADA violations involving intentional discrimination. This is the reading embraced by the Gunther court

But Gunther's reading was not the one most likely to jibe with the Legislature's likely intent. Instead, the Court delved deep into the legislative history and tracked the various changes over the past decades to glean the Legislature's intent in incorporating the ADA into California's civil rights regime. The Court concluded that, while there were several reasons suggesting that the Legislature intended plaintiffs to base their claims on Civil Code section 54.3, which would require a showing of intent, the better supported conclusion was that the Legislature purposely overlapped the statutes--even though this meant that no litigant in his right mind would go forward with a claim that required a showing of intent when he could choose to plead one that didn't.

On the other hand, the Legislature recently enacted new legislation to curb potential abuses.

Most pertinent here, the new legislation (applicable to claims filed on or after January 1, 2009 (§ 55.57)) restricts the availability of statutory damages under sections 52 and 54.3, permitting their recovery only if an accessibility violation actually denied the plaintiff full and equal access, that is, only if ―the plaintiff personally encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a place of public accommodation on a particular occasion‖ (§ 55.56, subd. (b)). It also limits statutory damages to one assessment per occasion of access denial, rather than being based on the number of accessibility standards violated. (Id., subd. (e).)

Munson at 21.

But what exactly does the new Civil Code section 55.57 require to turn away those would-be vexatious litigants?

(a) Statutory damages under either subdivision (a) of Section 52 or subdivision (a) of Section 54.3 may be recovered in a construction-related accessibility claim against a place of public accommodation only if a violation or violations of one or more construction-related accessibility standards denied the plaintiff full and equal access to the place of public accommodation on a particular occasion.
(b) A plaintiff is denied full and equal access only if the plaintiff personally encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a place of public accommodation on a particular occasion.
(c) A violation personally encountered by a plaintiff may be sufficient to cause a denial of full and equal access if the plaintiff experienced difficulty, discomfort, or embarrassment because of the violation.

Ah, yes. That will send those serial plaintiffs packing. I'm sure they will be quite at a loss wondering how in the world they might try to convince a jury that a poor chap in a wheelchair sustained sustained "difficulty, discomfort, or embarrassment." Handy work indeed.

As Oliver Wendel Holmes said, "if my fellow citizens want to go to Hell I will help them. It is my job." It is now a job that our California Supreme Court seems perfectly comfortable performing, if this case is an indication.

All this raises the more interesting question that I will try to tackle in a subsequent post, which is, how does a court, such as the Munson Court here, muster up the motivation to overturn a perfectly well-reasoned decision, like the Gunther one, in order to open up floodgates of vexatious litigation? It does seem like this is one of the "5%" of really tough cases that is susceptible to more than one outcome. (Gunther's attorney, a colorful fellow, was less equivocal, calling Gunther "a results-driven, ass-backwards judicial activist decision from the start.")

At any rate, if it takes some sort of "activism" to get to the outcome from where legal analysis ends, what sort might be appropriate, or at least, more appropriate than others?

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Miranda Goes Mobile

The Weekly Standard reports that the Obama Justice Department has ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan. While one could hardly complain about spreading the United States' gold standard of criminal justice, this practice seems like it could become problematic. Miranda informs suspects that they "have a right to remain silent," and that they "have a right to an attorney." Actually, they probably don't have such rights, as they are non-citizens outside of the United States. But once the government tells someone they can expect something, it has the practical effect of becoming a right vested for all eternity. See, e.g., welfare.

H/T Bart DePalma

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Empathy Is Best Served by Adhering to the Law

John Hasnas his this wonderful op-ed at the Wall Street Journal:

As important as compassion and empathy are, one can have these feelings only for people that exist and that one knows about -- that is, for those who are "seen."

One can have compassion for workers who lose their jobs when a plant closes. They can be seen. One cannot have compassion for unknown persons in other industries who do not receive job offers when a compassionate government subsidizes an unprofitable plant. The potential employees not hired are unseen.

One can empathize with innocent children born with birth defects. Such children and the adversity they face can be seen. One cannot empathize with as-yet-unborn children in rural communities who may not have access to pediatricians if a judicial decision based on compassion raises the cost of medical malpractice insurance. These children are unseen.

One can feel for unfortunate homeowners about to lose their homes through foreclosure. One cannot feel for unknown individuals who may not be able to afford a home in the future if the compassionate and empathetic protection of current homeowners increases the cost of a mortgage.

In general, one can feel compassion for and empathize with individual plaintiffs in a lawsuit who are facing hardship. They are visible. One cannot feel compassion for or empathize with impersonal corporate defendants, who, should they incur liability, will pass the costs on to consumers, reduce their output, or cut employment. Those who must pay more for products, or are unable to obtain needed goods or services, or cannot find a job are invisible.

The law consists of abstract rules because we know that, as human beings, judges are unable to foresee all of the long-term consequences of their decisions and may be unduly influenced by the immediate, visible effects of these decisions. The rules of law are designed in part to strike the proper balance between the interests of those who are seen and those who are not seen. The purpose of the rules is to enable judges to resist the emotionally engaging temptation to relieve the plight of those they can see and empathize with, even when doing so would be unfair to those they cannot see.

H/T Stephen Bainbridge

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You May Need a Permit to Conduct Home Bible Studies

Here's another frightening story. What is it with San Diego?

SAN DIEGO -- A local pastor and his wife claim they were interrogated by a San Diego County official, who then threatened them with escalating fines if they continued to hold Bible studies in their home, 10News reported.

Attorney Dean Broyles of The Western Center For Law & Policy was shocked with what happened to the pastor and his wife.

Broyles said, "The county asked, 'Do you have a regular meeting in your home?' She said, 'Yes.' 'Do you say amen?' 'Yes.' 'Do you pray?' 'Yes.' 'Do you say praise the Lord?' 'Yes.'"

The county employee notified the couple that the small Bible study, with an average of 15 people attending, was in violation of County regulations, according to Broyles.

Broyles said a few days later the couple received a written warning that listed "unlawful use of land" and told them to "stop religious assembly or apply for a major use permit" -- a process that could cost tens of thousands of dollars.

[Update: The county backs off.

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"Empathy" Is For Quitters

Many conservatives, myself included, have seized upon Obama's "empathy" litmus for determining his appointment for the next Justice of the Supreme Court. The argument is that "empathy" is a code word for judicial activism, and judicial activism is bad. The most natural counter to the argument, then, is to pick apart the term "judicial activism." The argument proceeds in two parts. First, "judicial activism" is a bastardized term thrown around to mean simply "any judicial decision one happens not to like." Second, judicial activism is inescapable anyway, so we should just embrace it.

As to the first point, it is true that judicial activism is often wrongfully confused with “judicial review,” which is simply what courts do when they conclude that two laws are irreconcilable, and strike down the lesser to preserve the integrity of the greater. Tim Sandefur has a good explication of this here. Judicial activism is best understood as a corollary of political activism. Where political activists petition and exploit the political system in order to advance a particular policy objective, judicial activism is the petitioning and exploitation of the judicial system to advance a particular policy objective. It can be troubling when certain activists do this, such as environmental groups, or class action tort lawyers. The courts have developed an elaborate doctrine of “standing” to prevent some of the more egregious abuses of this, in fact. That is, if you’re not someone who was actually harmed by a particular law, you have no business petitioning against it through the judicial process—and the court will tell you so.

The real problem with judicial activism is when judges exploit the judicial system to advance their personal policy objectives. This occurs, as Orin Kerr over at The Volokh Conspiracy describes, when all the legal arguments only get you to a little better than 50% chance of getting the thing right. What you’re left with, the argument goes, is nothing more than personal policy preference of the particular judge. Thus, there’s no escaping judicial activism, and all the conservatives should just put a cork in the objections to Obama’s “empathy” talk. After all, if a judge cannot escape using his or her personal preferences, we should hope for something friendly-sounding, like judges with empathy, rather than something nasty-sounding, like judges who like to hurt puppies and draw Hitler mustaches on people’s pictures.

But this resigned acceptance of “judicial activism” is disconcerting. Ed Brayton explains why he thinks judicial activism (in particular, infusing “empathy” into judicial decision-making) is no big deal.

Which makes me laugh because "activist judge" is sort of the ultimate judicial code word. All of this highlights the split between formalism and legal realism, which roughly (but only roughly) corresponds to the conservative/liberal divide. Conservatives generally believe that judicial decisionmaking is merely a question of process; apply the proper rules of interpretation and you reach an objective, non-ideological, non-political conclusion.
This is nonsense, of course; conservatives are no less likely to have their values and political views influence their judicial decisionmaking than liberals, they just pick the process that leads to the result they want (and ignore that process when it doesn't reach that result; yes, I'm looking at you, Justice Scalia in the Raich case).

But need we throw in the towel so soon? There is no shortage of theories of legal and constitutional interpretation. Sure, anyone could make the argument that what a judge was really doing was imposing a personal preference, and using originalism, anti-majoritarianism, democracy-maximization, egalitarianism, or what-have-you as a mere pretext to get there. So what? Let them. If it’s a pretext, dissect the judge’s reasoning and expose the flaws. That is what the western Enlightenment tradition is good for. I suspect that a good many judges hop around from one theory to another for lots of different reasons—perhaps because they are concerned more about outcome than process; perhaps because they believe different cases call for different judicial theories; or perhaps because, well, judging is just hard and judges don’t have it all figured out yet.

Whatever is happening below the surface, the judge has to give reasons. Strictly speaking, “the judicial power” that the Constitution vests in the Court does not permit judicial activism. A judge has to come up with a decision based on reasons, not just conclusions. Judges might not help having conclusions before they have reasons. But reasons must be given. And the hope is that, in the process of giving them, the knee-jerk conclusion would give way to one that follows naturally from legal premises.

But the one thing we should not do it tell judges to hang it up, forget about jurisprudence, about consistency, about exercising judicial power. Instead, when things get tough, ask the litigants to show you their bank accounts, and go with the one who could use a little boost.

Judges may use whatever process supported by reason they deem fit to decide a particular case. “Empathy,” however, is not such a process. It is, to repeat Kerr, “an invitation to replace law with politics.”

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Obama Will Replace Souter With Someone Who Cares About The Rule Of Law? Don't Count On It

Faced with the unexpected delight of appointing his first Supreme Court justice, Obama has said that he will seek to fill Souter's seat with some one "dedicated to the rule of law." And yet then he went on to give these remarks, suggesting he will appoint someone who understands that "justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives." The NY Times reports:

[M]ore than anything else, he is a pragmatist who urged those around him to be more keenly attuned to the real-life impact of decisions.

. . . .

Though Mr. Obama rarely spoke of his own views, students say they sensed his disdain for formalism, the idea — often espoused by Justices Scalia and Clarence Thomas, but sometimes by liberals as well — that law can be decided independent of the political and social context in which it is applied.

. . . .

Former students say that Mr. Obama does not particularly prize consistency or broad principle. . . .

This all seems to be consistent with what he warned us of during his candidacy:

[I]n the overwhelming number of Supreme Court decisions, that’s enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsb[u]rg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart—the empathy—to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges. Alright?

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No Legitimate Secular Purpose In Religion Bashing

Religion Clause reports that the district court for the central district of California recently found that there was no legitimate secular purpose in a high school science teacher's characterization of Creationism as "superstitious nonsense."

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Church Victory Against Hostile Local Political Activists

The Religion Clause Blog has this news on the Grace Church case I worked on. And here's another piece on it. As a student working with Claremont's Center for Constitutional Jurisprudence at Chapman Law School, I explained to the San Diego Planning Commission what RLUIPA (the Religious Land Use and Institutionalized Persons Act) was, and why denying Grace Church a use permit because "we have enough churches" was an impermissible burden on religious exercise. Local politicians generally don't like being told they can't do whatever they want.

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No Animus, No Scrutiny—Or, Another Reason Why Iowa's High Court Was Wrong

After reflecting further on the Iowa Supreme Court’s decision last week in Varnum v. Brien, invalidating that state’s marriage law, it occurred to me that the court’s error was one fundamental to the understanding and structure of equal protection rather than a mere error in application. The court proceeds as one would expect: determine that the law discriminates against a class; determine that that class is a suspect one warranting heightened scrutiny; determine that there is no important state interest; and thus determine the Iowa marriage statute is unconstitutional. What the court fails to analyze, however, is the very touchstone of the equal protection analysis: the existence of animus behind the law, which animus is necessary to strip a law of its presumption of constitutionality.

All laws create classifications. Real estate brokers are subject to a set of regulations separate from mortgage brokers, separate from investment brokers, separate still from doctors, lawyers, and pest exterminators. The equal protection doctrine—whether federal or state—does not make any of these regulations unconstitutional on the basis that they treat groups of professionals differently. Obviously, such would put a quick end to most laws—a happy result for some, but certainly not the objective of equal protection. Instead, its objective is to prevent majorities from enacting laws for some improper purpose other than the health, safety, morals, and welfare of the people.

The 14th Amendment, obviously, sought to rid the states of laws that were premised on wrongheaded notions of race, which had cropped up in part due to an effort to legitimize and prolong the hopelessly illegitimate and doomed institution of slavery. Because of that particular unfortunate history, laws making classifications on the basis of race would have to be carefully and seriously monitored by our counter-majoritarian courts. And, because legislatures could easily hide its true motives, the only way the courts could achieve that purpose was to create a presumption that distinctions based on race were based on animus, and thus put the onus on the states to prove otherwise. This is what became known as strict scrutiny, where the state would be required to show a “compelling” state interest for the discriminatory law, and that it was very narrowly tailored to achieve that interest.

As tends to happen in constitutional law, doctrines that are designed to remedy a particular evil turn into abstract constitutional principles that might be extended to cure all sorts of other social ills, whether real or perceived. And rightly so: words refer to an infinite number of things, and the 14th Amendment is not limited just to “any person” living at the time of its enactment, or “any person” affected by the racial attitudes of the 19th century. Thus, its application to irrational laws discriminating against women was an appropriate extension of the doctrine, to the extent that application established a suitable basis for assuming an improper purpose on the part of the legislature.

This is precisely what is lacking in Varnum v. Brien—any demonstration that Iowa’s marriage law was premised on any animus against homosexuals. The best it can muster are generalizations ("the historical reality . . . of purposeful and invidious discrimination" (Varnum at 37), the U.S. Supreme Court's rebuke of Texas's anti-sodomy laws in Lawrence v. Texas, federal military policy regarding homosexuals, and, most amusingly, the specter of unnamed "[s]chool-yard bullies" who mete out "school-yard prejudice" (Varnum at 37-38). The court does not even guess whether or how much any of these supposedly "purposeful and invidious" acts of discrimination occur within Iowa's state lines.

Curiously, however, the court goes on to describe the huge strides Iowa's legislature has been making to curtail such abuses, making frequent allusions to the various advances in the cause of gay rights, various Iowa civil rights statutes calling an end to all sorts of other forms of discrimination, and noting that civil marriage is the "notable exception to this trend." (Varnum at 47-48.)

The Iowa General Assembly has recognized the need to address sexual-orientation-based discrimination by including sexual orientation as a characteristic protected in the Iowa Civil Rights Act, by defining hate crimes include certain offenses committed because of the victim’s sexual orientation, and by prohibiting “harassing or bullying” behavior in schools based on sexual orientation. See Iowa Code §§ 216.2–.18A (Iowa Civil Rights Act) (sexual-orientation-based discrimination); id. § 280.28 (school harassment and bullying); id. § 729A.2 (hate crimes committed because of the victim’s sexual orientation). These statutory enactments demonstrate a legislative recognition of the need to remedy historical sexual-orientation based discrimination.

(Varnum at 38.) In other words, the Iowa General Assembly is on the case; it does not need its Supreme Court to tell it how to address the needs of that state’s gay community. Whatever ills that community has or is suffering is clearly being considered—and favorably, the court seems to think. Except for the gay marriage issue, of course.

But Iowa is in good company in that regard. Forty other states have banned same-sex marriages, despite the fact that gays have been consistently advancing their civil rights across the nation. The fact that they continue to lose on the issue—just one, single issue—of civil marriage should be telling: it is not due to a general animus or reluctance to give civil rights or dignity to homosexuals. It is merely because there are certain attitudes towards marriage that continue to make it difficult to reconcile a cultural worldview in which gays share that peculiar and almost mystical institution with straights. (After all, some women still torture themselves over whether they can “wear white” on their wedding day—weddings and marriage come with a lot of odd strings from whence we know not.)

One thing is sure from the court’s opinion: there is no animus against gays underlying Iowa's marriage statute, no “unfair and severe prejudice” that would establish a presumption of discrimination based on sexual orientation. (Varnum at 48.) Were it otherwise, how could one explain the great advancements in all other facets of life and dignity that the homosexual community has made, both in Iowa and nationally?

Thus, the “important state interest” requirement (applied in instances of the “intermediate” or “heightened scrutiny” analysis) should not have been imposed in Varnum. This requirement is needed to overcome the presumption that there is animus behind the law, an attempt to irrationally or wrongfully deprive a suspect class of a right. That was not happening in Iowa.

Usually, moral legislation can only withstand the lax rational basis standard, and gets struck down if any higher level of scrutiny is applied. Higher levels of scrutiny requires the law to be justified by an empirical, demonstrable purpose—i.e., not merely a moral one. Even assuming, for the sake of argument, that homosexuals were being deprived of a right, and even assuming, for the sake of argument, they were a suspect class, the specific overrides the general. That is, if there is no improper purpose behind the specific law in question, it matters not whether the suspect group has suffered some generalized historical marginalization. And in this specific instance, no animus can be imputed to the legislature with respect to Iowa's marriage statute, and thus it is immaterial whether such animus perhaps could have been generally applied for other kinds of discrimination against Iowan homosexuals. (Then again, even this would be hard, given the activism on Iowa’s part to eradicate discrimination and ill-treatment of gays. But it is even more difficult to show discrimination in the context of marriage, since this is an institution steeped deeper in religious heritage, and which has exhibited a pattern of resistance all over the country, as the court itself notes.)

Without animus, classifications are fine. The equal protection clause was never meant to prohibit classifications—we require all sorts of different licenses and standards for all sorts of different things and group of people. It only prohibits the kind of irrational and invidious discrimination like the racial discrimination that plagued us for many decades and centuries. I even submit that, were the last trace of that irrational and invidious tendency to discriminate based on race to leave humanity for good, we would be free to discriminate even upon that basis, subject only to a rational basis standard. (This despite Justice Thomas's concurring opinion in Missouri v. Jenkins.) Granted, such a hypothetical involves a utopian ideal of complete racial blindness and is thus probably entirely theoretical. The point remains, however: no animus, no searching scrutiny.

Scrutiny should only diminish over time, never increase. Our society is progressing on its own, adopting more and more inclusive mores and attitudes. While we will never reach utopia, things are getting better, not worse. Unfortunately for some jurists, this means fewer opportunities for courts to invalidate laws on the basis of invidious discrimination. At least, it should. Courts like Iowa’s will still find animus where there is none in order to accelerate social change to their satisfaction.

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Support for Professors Yoo and Rotunda and The Right of Free Speech

Below is my letter to the editors of the Chapman Panther in support of Professor Ronald Rotunda's piece, "The right of free speech, regardless of what is spoken":

Kudos to Ronald Rotunda for his piece, "The Right of Free Speech, Regardless of What Is Spoken," for steering clear of the faux legal argumentation polluting the airspace in the debate on detention and interrogation policy. Many attorneys, even those among our law faculty, cannot withstand the temptation to make a legal-shaped block fit in a moral-shaped opening. These "legal" arguments have taken a couple different forms, including a particularly creative one: that the memos written by Professor Yoo and others were legally inept and thus do not qualify for First Amendment protection. It is a clever position that seeks to paint those authors as unmitigated advocates of torture -- perhaps out of concern for national security, or perhaps just out of sadism. So stripped of legal privilege, as the strategy goes, Yoo and co. are now exposed to endless moral stone-throwing by an indignant populace growing ever colder on our nation's "Overseas Contingency Operation."

But this is not a serious argument -- certainly less, at least, than John Yoo's analysis of the legal merits of the administration's positions. To take just one example, Professor Yoo's March 14, 2003 memo -- a veritable treatise at 81 pages on every imaginable domestic and international source of authority respecting the treatment of detainees -- exemplifies the rigor to which the administration subjected the legal issues at play. Yoo even discusses hypothetical defenses based on necessity and the sovereign right of self-defense, which might be raised in the event the foregoing interrogation authorities were found to apply to Gitmo detainees (which, as Yoo had just explained in the previous 74 pages, they did not).

Recently, at The Volokh Conspiracy (http://volokh.com), University of Minnesota professor and former White House ethics attorney Richard Painter, took issue with these defenses as described in Professor Yoo's memo, apparently because they do not answer whether they are likely to be successful or not. Of necessity, any discussion on the defenses available in such unprecedented circumstances will be conjectural, based on high levels of abstraction of standards applicable in only loosely-related analogues -- criminal civilian contexts, for example. Thus, attacks from folks like Painter are pure form over function, because, under their view, Yoo could have resolved the issue by offering a meaningless disclaimer, something like, "these are sound arguments, but predicting a court's ruling would be impossible without knowing the politics of the particular judge."

But Professor Yoo took as good a crack at it as can be asked of any lawyer called upon to opine on moral philosophy and political theory -- areas that are "above his payrate" as an attorney giving legal advice. For his efforts, he now receives steady lashings from folks who would modify legal arguments to advance their moral cause. But the real losers are those of us who actually do want real scrutiny on the moral issues at stake: All the noise and chatter from wrong-headed arguments – making legal claims in moral arenas – give the impression that there are no good reasons to be critical of our nation’s interrogation and detention policies. There are. The importance of the moral questions are diminished by blustering legal responses. Lawyers ought to stop offering them.

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Iowa Joins in the Destruction of the Rule of Law

Iowa’s Supreme Court today withdrew from its citizens their civic right to determine their state’s policy regarding marriage, holding that sexual orientation was not an “important respect” of that institution’s makeup. [PDF of the opinion.] Regardless of how you weigh in on the issue of gay marriage, the opinion is an affront to our nation’s tradition of justice. It is a superficial power grab designed merely to advance a moral conclusion through an abuse of legal process. (If you are new to the evaluation of judicial opinions, this is the very characterization we use now when talking about the Dred Scott decision, now haled as one of the worst, if not the worst, opinion in the Supreme Court’s history.)

How superficial is the Court’s reasoning? Iowa Code section 595.2(1) provides “[o]nly a marriage between a male and a female is valid.” According to the Court, “The legislature, in carrying out its constitutional role to make public policy decisions, enacted a law that effectively excludes gay and lesbian people from the institution of civil marriage.” (p. 13.) But don’t forget polygamists and kissing cousins. If we were truly using outcome-neutral legal reasoning, we have to recognize that these groups are also excluded. And there is a simple reason for this exclusion: people don’t like it. They think it’s icky. If and when they ever stop thinking it’s icky, and if there’s a critical mass of such folks clamoring for their “right to marry,” they’ll likely get it.

Many people still think gay marriage is icky. The tide is shifting in that area, but the scales haven’t tipped yet. But there is no “equal protection” violation in refusing to recognize a marriage between a couple of men any more than there is in refusing to recognize a marriage between a couple of siblings, a couple of 14-year-olds, or a quartet of what-have-you’s.

Let’s see where Iowa’s precedent would leads, by substituting the aforementioned groups in the following language from the opinion:

Thus, the right of a gay or lesbian person [or a polygamist, or committed cousins] under the marriage statute to enter into a civil marriage only with a person of the opposite sex [or just one other person, or just another unrelated person] is no right at all. Under such a law, gay or lesbian individuals [or a polygamist, or committed cousins] cannot simultaneously fulfill their deeply felt need for a committed personal relationship, as influenced by their sexual orientation, and gain the civil status and attendant benefits granted by the statute.

Of course, Iowa’s decision is not meant to be read as judicial precedent. It is simply a statement of law – more like a statute. Statutes are fine, when they are passed by a body of representatives duly elected by the people. But not when they are handed down by judges.

The Court concludes that the “plaintiffs are similarly situated in every important respect, but for their sexual orientation.” (p. 28.) Who decides which respects are “important”? Why, the folks in black robes. You can keep your ballots. Put them in a scrapbook to show your grandkids how our nation decided policy matters before judges decided they were better at it.

I would prefer very much that lawyers and anyone else purporting to make legal arguments to advance moral positions just stop it. This is not what legal argumentation is for. As someone who cares very much about the rule of law and the proper exercise of the democratic function in our republic, and markedly less about whether gay marriage is actually sanctioned, I dislike having to rant about the wrong-headedness of gay marriage advocates. I have several gay friends, and my wife and I enjoy visiting with them, particularly at Christmas parties and summer barbecues. I worry that someone would misinterpret my advocacy for the rule of law into a misguided basis of some accusation of "hate-mongering."

The fact is, it is a moral issue. Moral issues are decided in our society at the ballot, not at the courthouse. Iowa’s high court handed down an abysmal decision. Not because its outcome is one that opponents of gay marriage don’t like, but because it is reached by a terrible subversion of the rule of law and legal argumentation. These things may seem stodgy and trivial to those who just want their “rights,” but without them, none of our rights have any meaning.

Please stop destroying the rule of law.

[Update: Some discussion on these points at Dispatches From The Culture Wars.]

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Who Cares About the Constitution? Not Eric Holder

In another Obama administration affront to the rule of law, Attorney General Eric Holder is reportedly rejecting the Office of Legal Counsel's opinion that the controversial D.C. voting-rights bill pending in Congress is unconstitutional. This despite our Constitution's clear prohibition of that bill under Article I, Section 2, which states "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." (Emphasis added.)

As Andy McCarthy points out,

None of this means it is a bad thing to want Americans who live in D.C. to have representation in Congress. There are ways of accomplishing that: amendment of the Constitution, the grant of statehood to D.C., or retrocession to Maryland (part of the District having already been ceded back to Virginia). Aside from being legal, those methods would not create the host of problems that would result from the current legislation (e.g., Why only a member of the House but not two in the senate? Why voting rights for D.C. but not Puerto Rico, American Somoa, Guam, and the U.S. Virgin Islands?).

But pushing through a constitutional amendment or a grant of statehood would be hard, even for Obama. Trampling the rule of law has proven much easier.

[P.S.: If there is any doubt that I am more concerned with constitutional fidelity than politics, what in heavens would I care that D.C. residents get a measly representative in the House? I should probably be ashamed, but I do not even know the representative for my district, or how in blazes he has been voting lately.]

[Update: Volokh has updates here and here.]

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It’s Still OK to Make Moral Arguments

With my tirade out of the way about finding legal arguments where moral ones should be, I would be remiss if I did not also emphasize the importance of public scrutiny and civil dissent regarding our interrogation and detention practices. To this end, a reader directed me to two good articles, here and here, that should set the alarm bells ringing as good moral citizens.

Again, although I believe there is extremely broad, if not unlimited, discretion regarding what an American president can do as commander-in-chief with respect to foreign affairs in furtherance of national security interests, we should not be so agnostic as to what should be done, and not be done, to secure these ends. After all, we are the Zeitgeist -- our attitudes shape the background limits of cultural and moral acceptability. These attitudes need to be articulated.

So, at the risk of extreme self-deprecation, don’t give the devil (i.e., folks like me) a foothold. All the noise and chatter behind the wrong-headed arguments – making legal claims in moral arenas – gives the impression that there is no good reason to be critical of our nation’s interrogation and detention policies. By conjuring up elegant-sounding legal arguments that fall flat in the end we take attention away from the important (although squishy) moral issues at stake.

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In Defense of John Yoo

After having read through much of Yoo’s 81-page memo, it is even clearer that Painter’s conclusions are premeditated. The memo amounts to a treatise on every imaginable domestic and international source of authority respecting the treatment of detainees, both constitutional and statutory, and even including reviews on maritime, maiming, and interstate stalking laws. In the time I could spare from my day job reviewing the memo, it is sound legal analysis, drawing the conclusion that the text and structure of the law in light of the factual background indicate that the relevant authorities do not extend to alien enemy combatants held at Gitmo.

The paragraph that Painter criticizes comes at page 80, in a section titled “Defenses,” in which Yoo explains what arguments might be made in the event that the foregoing interrogation authorities were found to apply to Gitmo detainees (which, as Yoo had just explained in the previous 74 pages, they did not). Of necessity, any discussion on the defenses available in such unique circumstances will be conjectural, based on high levels of abstraction of standards applicable in only loosely-related analogues -- criminal civilian contexts, for example. But Yoo takes as good a crack at is as can be asked of any lawyer called upon to opine on legal and moral philosophy and political theory. For his efforts, he now receives steady lashings from folks like Painter.

As for the self-defense argument about which Painter thinks so little, I have to agree with Yoo. As I said before:

The purpose of government is to protect rights, and in order to do this, it must first ensure its own survival. We do not reach the question of whether and how much to protect the rights and liberties of any individual (let alone foreign enemy combatants) until the political order can first reasonably assure those components necessary to its self-preservation. Thus, in the case of furthering such a prime directive as preventing further terrorists attacks within its own borders, as a matter of first principles a nation need not be concerned at all with notions of due process.

The common response to such arguments is that we may win the battle but lose the war by forfeiting our decency. Our leaders are not permitted the luxury of giving moral evils a wide berth and comfortable margins of error. They must skirt the ethical line in carrying out their prime directive of keeping us safe. The continued existence and prosperity of our nation requires both decency and not being blown up. One would be loathe to give up on either, but pressed, only one of those things is given to diminution.

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Is Criminalizing Attorneys For Their Legal Advice OK If You Are Really, Really Against It?

Richard Painter has this recent post on The Volokh Conspiracy regarding the so-called "torture memos." In short, he suggests that, because John Yoo's memos did not opine on whether the arguments would prevail in court (i.e., on "the merits" of the position), that they provided "no useful advice," and were thus "inept legal advice" not meriting constitutional or free speech protection. [Update: the latter conclusion is drawn by another constitutional law professor discussing Painter's post -- Painter himself does not say this. My apologies.]

The argument derives from a clever gambit: instead of arguing the legality of the position, which is messy and political, argue the form of the legal advice, something more susceptible to legal argumentation. The argument so framed then becomes: whatever the position the memos took, they failed to analyze whether they would prevail in court, and thus were inept legal advice. Voila: we now needn't bother with any pesky free speech questions, natural law arguments, and structural constitutional questions of separations and delegations of authority.

But if we are going to confine our focus to a "client/counselor" analysis, let's take it seriously. For the president's counsel, the concern is not what the courts are going to do -- the nature of the issue means the result is going to be ends-oriented anyway. In other words, Painter's complaint is pure form over function, because, under his view, Yoo could have resolved the issue by offering a meaningless disclaimer, something like, "these are sound arguments, but predicting a judge's ruling would be impossible without knowing the politics of the particular judge." After all, the president has more discretion than most clients, and political capital is going to be a major component of his legal strategy. Coming up with even a colorable argument, combined with broad Article II discretion in foreign affairs and political capital, would likely be more than enough to constitute a competent legal strategy.

In this regard, one commenter hit the mark:

A memo is not the place to be spending 30 pages on some contingent analysis of all possible situations and legal theories: the memo lists the case law, some papers, and says "maybe." That's the state of the law: "maybe." More analysis is not going to change that.

And another:

These are lawyers doing research and finding conclusions about the state of the law. The president needs accurate information about the law to enable him to make appropriate decisions. Due to the near-total absence of law with respect to unlawful soldiers, the decision of how to treat them is ultimately a moral one. That's the realm of theologians and philosophers, not lawyers. I would not expect legal memoranda to contain detailed moral, philosophical, or theological discussions and conclusions. That's not what lawyers do. It would not be professional for them to do so when asked to render legal opinions. There's no reason to expect lawyers to have any particular expertise in those areas.

But clearly, moralizing is all Painter means to do, calling the arguments "specious" and "obvious[ly]" wrong without any analysis of his own. Ironic, given he has just finished suggesting that an unfinished analysis may be grounds from criminal prosecution. [Update: Ditto above. This conclusion is drawn by others, but not Painter.] Arguments such as Painter's, however cleverly conceived, still offer nothing to anyone not already converted to a particular political view. Strictly speaking, that's not argument -- it's bluster.

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The Rule of Law Does Not Lend Well to Selectivity

Brian Tamanaha’s post at Balkinization calling for criminal investigation of the Bush administration’s treatment of prisoners at Guantanamo Bay is a wonderful example of how liberals tend to flip sides in the “rule of law” rhetoric. After all, what sober-minded conservative could take issue with talking up “our commitment to the rule of law”? But it is the chosen context that betrays the underlying political bias: if Professor Tamanaha is truly concerned about the rule of law, how about condemning the national take-over of private institutions being considered by the Obama administration? How about the punitive tax targeted directly at AIG employees who received impolitic though perfectly valid bonuses? Or the out-and-out rejection of the rule of law by Obama himself? If we choose to reignite our enthusiasm for the rule of law, let’s start with domestic actions affecting citizens regarding a metaphorically explosive crisis rather than foreign military actions affecting noncitizens regarding an actually explosive crisis.

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Prop. 8 financial supporters named on Web site - Press-Telegram

A Long Beach resident has compiled and posted the names of all contributors to the Yes on Prop 8 campaign. Raphael Mazor is reported to have said that these contributors "voted to undermine families by taking away someone's right to get married. It was a personal attack, so you cannot call this just another political disagreement."

This seems to be another example of how our legal culture's enshrinement of super-democratic standards seeks to antagonize our traditional democratic legislative processes. What a shame.

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Would Plural Marriage Be On the Heels of Gay Marriage?

A popular and, to my thinking, convincing argument against unmooring the definition of marriage from the traditional/historical "one man, one woman" construct is that, once so unmoored, there would be no stopping point. That is, if the alternative view, that "love is love," is taken seriously, then there would be no reason that the numerical restriction should any longer be taken seriously, and plural marriages would be on the table.

I came across this article in which a Mormon mucky-muck agrees, and suggests that a win for gay marriage would result in new lawsuits bringing polygamy and embarrassing Mormon doctrine and history into the limelight. In particular:

Should any state succeed in allowing homosexual, same-sex marriages to become law, it is almost certain that polygamy will rush in on its heels. Should same-sex marriages become legal, there will be no moral high ground for the court to take. I can assure you that it will not be long before petitions come before our lawmakers demanding similar recognition for plural marriages.

It is important to note that, if we eventually recognize gay marriage, it must be done through the political process, not the courts. Through the political process, we can simply declare that the sensibilities and culture of the people dictate that marriage include...whathaveyou. If we opt for a shortcut through the courts, we will be forced to follow that wormhole through to its logical conclusion. In other words, the court-route would require the court to declare, by fiat, a principle by which marriage would be defined. If that principle is something amorphous like "a committed and loving relationship," as the pro-gay marriage folks would have it, then there is absolutely no reason why such a principle would not extend to any such relationship, regardless of number. Being thus tethered to principle, rather than to the sensibility of the people, there would be no stopping point, and plural marriage must also be recognized as a matter of judicial and logical consistency.

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Who Cares About the Constitution? Not Laura Von Harten

Here's another example of relativism transcending personal moral choices all the way to undermining federal statutes and even our Constitution. Laura Von Harten, a Beaufort, South Carolina county council member, objected to rezoning a parcel occupied by a Catholic church because official Catholic policies are an "affront to my dignity and all of womankind." Ms Von Harten, you are perfectly free to express those views in an op-ed, or in a blog, or into a stiff wind. But once you allow your purely personal views to prevail in a direct contest against the Constitution and federal statutes (e.g., the Religious Land Use and Institutionalized Persons Act, or RLUIPA), you wield your power as a tyrant, not as an official elected to uphold the rule of law.

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Who Cares About the Constitution?

Not Pittsburgh city council member Tonya Payne. Upon the passage of a controversial, and probably unconstitutional, gun ban, Ms. Payne remarked:

"Who really cares about it being unconstitutional?" said Councilwoman Tonya Payne, a supporter. "This is what's right to do, and if this means that we have to go out and have a court battle, then that's fine ...

We care about laws being constitutional, Ms. Payne, for the same reason we don't simply sweep all laws aside and solve our problems in the most expedient way we can imagine. We care about the rule of law not because it is the best way of combating crime--certainly we could achieve this more effectively by vesting unfettered discretion in a crime czar. No, we care about it because it guarantees the only way of life that has any objective basis for regarding crime as morally evil, and may thus undertake to root it out. When we leave the rule of law behind, we are no different from gangsters.

Unfortunately, Ms. Payne's attitude will soon be shared by the very top level of our government.

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