04 April 2014

Hobby Lobby & Conestoga Wood

If you've had any exposure to national news outlets over the past year or so, you are probably well aware of the lawsuit that Hobby Lobby, a privately-owned chain of arts and crafts stores, has brought against the United States federal government regarding the Affordable Care Act's (aka Obamacare) mandate requiring that employers include coverage for contraceptives in the healthcare plans they provide to their employees.

If you've paid close attention to the news, you're probably also aware that the case reached the Supreme Court and that this past week the Court heard oral arguments from the parties. Since I got a good deal of positive feedback the last time I did a Supreme Court preview based around oral argument, and since this case is another one that the culture has deemed worthy of paying attention to, I figured I'd once again offer my thoughts on the case.


Factual Background
In March 2010 President Obama signed into law the Patient Protection and Affordable Care Act (PPACA), colloquially known as the Affordable Care At (ACA) or Obamacare. The bill effectively overhauled a large portion of the way that healthcare is funded in the United States and the way that the federal government regulates the industry. The law carved a middle-way and burdened both the government and private organizations with certain obligations in pursuit of a more efficient and affordable healthcare system in the United States. Whether the ACA was good public policy — whether it was too much regulation, too little regulation, good regulation, bad regulation, balanced the public and private obligations well, &c. — I have no interest in writing about and is of no concern here.

What is instead more important about the ACA as regards the cases the Supreme Court heard this past week is the contraceptive obligation. As stated above, it mandates that employers provide in their employees' healthcare plans coverage for a list of FDA-approved contraceptive methods and sterilization procedures.

Because certain religions oppose, to greater and lesser extents, the use of contraceptive drugs and implements, an exemption was carved out for 'religious employers'. For the purposes of the contraceptive mandate, a 'religious employer' is defined as certain non-profit organizations whose core function is religious, such as churches, associations of churches, and so forth. Thus, for example, your local church is fully exempted from the ACA contraceptive mandate.

There is also a certain accommodation provided for 'religiously affiliated' non-profit organizations; in these arrangements, employees still receive coverage for the contraception, but the employer does not pay for the coverage. Most notably, however, for-profit corporations1 are not eligible for either the fuller exemption nor the accommodation. Enter Hobby Lobby and Conestoga Wood.

Hobby Lobby is a national chain of arts and crafts stores which employs over 13,000; Conestoga is a wooden furniture–manufacturer which employs 950. Both are privately held corporations whose majority interest is controlled by members of a single family. Because both also believe that human life begins at the moment of fertilization, they consider any measure which prevents the development of said fertilized egg to effectively constitute an abortion, and thus a violation of their religious beliefs. Four of the methods required by the federal regulation do this, they believe. (As a sort of short-hand, it is to these methods only that I am referring, throughout this article, when I refer to 'contraception'.)

Wishing not to fund coverage for drugs and devices which they believe cause abortions, both therefore wish to be religiously exempted from the contraception mandate. This brings us to the actual legal claim that the two corporations assert.

Legal Background
In the latter half of the 20th century the legal status of religious freedom in the United States was undergoing a number of different shifts. At the center of the changes was the so-called Free Exercise Clause of the First Amendment, which reads that the 'Congress shall make no law . . . prohibiting the free exercise [of religion].' As the government expanded its regulatory framework, and as the religious practices of the people of the United States became more diverse, government and religion clashed more often, and the Free Exercise Clause came to be invoked more frequently.

In 1963 the Supreme Court decided the case Sherbert v. Verner, which established a new standard for how courts should resolve the tension between government regulations and religious freedom, generally erring on the side of religious freedom. As the decades progressed, the 'Sherbert Test' became gradually more restricted, with the Court wanting to err more and more on the side of the government.

The climax of this scaling back of Sherbert came with the 1990 Supreme Court case Employment Division v. Smith. In that case, a pair of Native Americans were fired from their job for having smoked peyote; as it happened, such was part of their religious practice. When they sought unemployment benefits from the state of Oregon, they were denied those benefits because their termination had resulted from an illegal act. They sued, claiming that their free exercise of religion had been infringed by the Oregon law and that they should be held exempt from the law for religious reasons.

The state of Oregon appealed the case all the way to the Supreme Court, and the Court found in favor of the state, effectively overturning the 'Sherbert Test' and replacing it with a new one. The Essence of the decision in Smith stated that someone could not invoke religious exemption from a law which was 'generally applicable' to all persons equally, such as the general ban on peyote usage.

The political response to Smith was univocal. People from all ends of the political spectrum were outraged, believing the Smith decision represented a threat not only to religious minorities but to religions which might later find themselves in the minority. In response Congress passed the Religious Freedom Restoration Act (RFRA, commonly pronounced 'RIFF-ruh'), which was passed unanimously in the House, by a 97-3 margin in the Senate, and signed by President Clinton.

RFRA effectively reinstated a modified 'Sherbert Test' as the one which courts would have to apply when determining whether persons could be religiously exempted from federal laws.

The law stipulates that 'government shall not substantially burden a person's exercise of religion' unless it can both show that applying that burden 'is in furtherance of a compelling governmental interest'2; and is the least restrictive means of furthering that compelling governmental interest.'

A law must pass both of these tests; one out of two is insufficient. A court will also ask basic questions to determine whether the individual's belief is a sincerely held one and whether it truly is burdened by the government, but the main burden is on the government.

What is important to notice here is that RFRA does not, by any means, guarantee that an individual will win a case in which he claims a burden on his religious exercise. Nor does the strength of that belief or the centrality of it to the totality of his religion play much of a role. What is important, for the purposes of RFRA, is two things: is the law in pursuit of a 'compelling government interest'; and could the government have pursued that interest in a manner less burdensome to religious freedom?

In its 20-year history, RFRA has mostly been claimed by individuals belonging to minority religions (e.g., Native American religions, Judaism) or to more radical extremes of major religions. The Hobby Lobby and Conestoga cases are significant not only for the fact that they concern the politically very contentious ACA, but also because they implicate the beliefs of Catholic and mainstream evangelical Christianity.3

Thus, RFRA is the law under which Hobby Lobby and Conestoga have brought a suit. Their legal claim is that enforcement of the ACA's contraception mandate would be burden upon their exercise of religion. Further, they claim that the provision of contraceptives is not a compelling government interest; or, if it is, that there exist means of furthering that interest which would be less restrictive of religious exercise than does requiring private employers to pay for healthcare plans providing such contraceptions.

But the reason why the case is contentious not just politically but legally as well is something you may have already noticed: RFRA refers to 'a person's exercise of religion'. Hobby Lobby and Conestoga are corporations, and not, strictly speaking, persons. In many, many other American legal contexts 'person' has been read to include corporations. This is the legal concept of corporate personhood. Sometimes this inclusion is explicitly written into the law, and sometimes it is inferred by courts. But can a corporation have religious beliefs? Are the religious beliefs of a corporation's members imparted to the corporation itself?

Thus we come to oral argument having surveyed the battleground and understanding the questions presented: more broadly, does RFRA's protection of 'persons' include corporations? In what circumstances? More narrowly, is the ACA's contraception mandate furthering a compelling government interest? And is the mandate the least religiously burdensome means by which the government can pursue that interest? Welcome to the Supreme Court!

Oral Argument

Paul Clement for the Private Parties
First up is Paul D. Clement, representing Hobby Lobby and Conestoga.4 As is common in oral argument, before Clement is able to make much of an statement, he is interrupted by one of the Justices, Justice Sotomayor. She and Kagan exchange questions, presenting what is sometimes known in legal circles as a 'parade of horribles': if we grant these corporations religious exemptions from providing contraception coverage this time, what about all these other 'horrible' cases, like vaccinations or blood transfusions? Wouldn't we have to grant religious exemptions to them, too?

This is a valid issue to raise. Given that it is probably the main question in most of the public's mind, it is probably not surprising that it is the first one raised by the Court. But Clement gives the right answer: this gets to the 'compelling interest' test.

In the case of vaccinations, Clement points out, there is the concern of herd immunity. And so even though his clients argue that the government does not have a compelling interest in requiring contraception coverage, the government may very well have a compelling interest in requiring coverage for other medical services, despite religious beliefs.5 This may or may not be the case — and the Court doesn't really care at this point — but Clement does give the Court an easy way to distinguish members of the 'parade of horribles' from the case before it presently.

One additional thing that I want to point out at this point, is that the 'compelling interest' test is not something new for the judicial system. One worry that I've heard some people express is, 'But how will a court decide all of these cases that might come forth? How can they even decide what to allow an exemption for and what not?' To that worry it should be noted 'compelling interest' is one of the bread-and-butter tests in constitutional law. Courts decide when the government has or doesn't have a compelling interest all the time. It's the test that is used all the time with discrimination law, for example. It's also the same test that the courts have used since 1993 to decide other RFRA cases; the only difference here is the party is a corporation rather than an individual. And so Clement is not presenting the Court with a novel test which it not fully competent to answer, but rather is very accustomed to answering.

The next exchange, initiated by Kennedy, is a subtle discussion of procedure: whether the Court should look at the issue as a constitutional one (regarding the Free Exercise Clause of the 1st Amendment) or a statutory one (regarding the interpretation of RFRA). The question itself is not a terribly important one, but where it leads is a bit more interesting. As the exchange progresses, a number of the Justices question whether Congress could have possibly meant, when they passed RFRA in 1993, for the law to have such a broad-reaching effect as to also include corporations. This broad-reaching effect was a concern earlier but comes to the fore now. Doesn't the unanimity of its passage suggest that it probably wasn't intended to be all that broad-reaching? How could you get consensus for a broad reading?

Clement's response to this challenge is an interesting one. Drawing on the legislative history — that is, the account of the Congressional debates leading up to the bill's passage — of RFRA and associated statutes, he describes that the bills were passed as a sort of inclusive compromise. 'The reason that there was such unanimity behind RFRA in the first place is that efforts to limit it to just certain subclasses, subsets of religious freedom claims, were rejected and everybody in Congress got together and said, "All right, you have some claims you actually want to be vindicated; you have some claims you want to be vindicated. We'll vindicate all of them."'

And so, RFRA was passed with the intent of not delimiting the boundaries, but leaving it to the courts to do so according to the broad terms of the law itself. And again, it's worth pointing out that courts are well accustomed to making these sorts of decisions when interpreting laws and the constitution: what to include and what to exclude. It's what they do every day.

The question then turns to whether for-profit corporations ought to be considered 'persons' for the purposes of RFRA, which only provides protection to a 'person'. As stated above, corporate personhood is not an alien concept. Throughout the United States Code the word 'person' is read to include corporations. Sometimes this is explicit; at other times it is included by reference to the Dictionary Act, which states that, 'unless the context indicates otherwise . . . the words "person" and "whoever" include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals'. So the question is, does the context dictate otherwise?

This is why Sotomayor asks, 'How does a corporation exercise religion?' And how does one determine what the religious beliefs of a corporation are? After all, is not religious belief a rather personal, individualized phenomenon? To this, Clement points out that courts 'every day deal with issues of trying to figure out what kind of intent or motivation a corporate entity has.' For example, if a corporation is charged with fraud, the law requires proof that the corporation knew that it was being deceptive. And so the corporate structure, corporate statements, and the figures in authority over the corporation are the main touchstones for determining what a corporation's mindset or intent is. Clement is here arguing that the same can be said for a corporation's religious beliefs. See, for example, Hobby Lobby's Statement of Purpose which makes frequent reference to religious beliefs and motivations.

This does lead to an important sidebar that the Justices discuss for a short bit: in a case involving the exercise of religion, a court does not inquire as to how central a particular belief is to a person's religion. It does not ask about the centrality of the belief. It does, however, ask about the sincerity of a belief. In other words, a court will not ask, 'If you were to have to abandon this belief, would it undermine your entire religion?' but a court will ask, 'Do you actually believe this, or are you just making this claim to avoid a legal burden?'

From here almost the entire Court gets involved in a discussion about the economics of the ACA and the contraceptive mandate. The economics matter because RFRA requires a 'substantial burden'. To be perfectly honest, I'm not familiar enough with the taxation scheme6 to comment about the various permutations the Court entertains, but I'll do my best to outline the basic thoughts.

At the most basic level, if Hobby Lobby or Conestoga were to not provide health insurance to its employees, it would pay $2,000 tax per employee. Now, it would be saving on the cost it pays to provide that coverage, which may or may not be more than the $2,000 tax. This is the part I find hard to follow, since I don't know the reliability of the numbers that the various members of the Court and the attorney bat around — whether they are based in fact, are proposed hypotheticals, or are uncertain estimates. In some sense, however, the matter is irrelevant because another aspect of these particular corporations' religious beliefs is the duty to provide for the health of their employees. So the corporations are claiming that the law has put them between a rock and a hard place: either they violate their religious beliefs and provide contraception to which they object; or they violate their religious beliefs in not providing health coverage at all.7

Like I said, I don't fully comprehend the economics of the situation — which is one of many reasons I don't own a business — but I hope I've made clear that part of a court's responsibility is to determine whether the burden imposed by the statute is a substantial one. This is, in fact, the first test which RFRA requires: is there a substantial burden.

The final part of the colloquy between Clement and the Court regards how much third-party interests — in this case, the employee who is not having contraceptive coverage provided by her employer — should be taken into account. At a very simplistic level, one could look to the RFRA and see that it requires no consideration of any third parties. The only entities at stake in the text of RFRA are the 'person' and the government.

But I call that simplistic for good reason, because third parties do come into play in a less obvious way: our good friend, the compelling interest. In fact, third-party interests are often what compel the government to take action. So the question is, how strong are employees' interests in receiving coverage for contraception? Are these third-party interests strong enough to give the government a 'compelling interest' to address the issue?

The analogy that Clement raises is abortion law. The law provides that a woman has a right to an abortion, but the law also allows medical providers from refusing to perform abortions. There is a significant burden on a woman who wants to have an abortion but must visit someone other than her primary provider, but that third-party interest doesn't trump the religious beliefs of the medical provider. And so the Court will need to compare and contrast these two instances to determine whether the distinction is legally viable. Spoiler alert: this will come out in Solicitor General Verrilli's oral argument.

The last tail bit of Clement's oral argument gets to the question of 'least restrictive'. As you'll recall, it is not sufficient for the government to have a 'compelling interest', but RFRA also requires that the government use 'the least restrictive means of furthering that compelling governmental interest'. On this matter the corporations are arguing that, even if the government does have the requisite compelling interest that women be provided contraception coverage, there are other means by which the government might pursue that interest. This is already what the government is doing for religiously affiliated non-profit corporations, by having entities other than the corporation (government, insurance company) pay for the coverage. Why not, Clement challenges, do the same for for-profit corporations?

So endeth Clement's oral argument. We now proceed to Solicitor General Verrilli, on behalf of the U.S. government.

Solicitor General Donald Verrilli for the Government
As with Clement, nearly as soon as Verrilli begins speaking, he is interrupted and the conversation essentially picks up where it ended with Clement: third-party interests. He argues that, when looking at cases like these, courts must take account of how third parties, such as the employees here, will be impacted.

One thing I want to call out, however, is how this particular legal issue is different from how the case is being portrayed in the media. Often one will hear talk about how employees such as Hobby Lobby or Conestoga are 'imposing their religion' on their employees by refusing to provide contraceptive coverage. But that is not how any party — the corporations, the government, the Court — sees the matter. The way they look at the employees is not in reference to religious beliefs, but in reference to their interest in receiving contraceptive coverage. There exists no legal right to be free of someone else's religion. This is an important thing to note.

Justice Alito then turns to the question of how to understand the word 'person'. Verrilli agrees with Alito that just because an entity is a corporation and not an individual does not mean that it cannot bring a Free Exercise claim. After all, a church is a corporation, and we know churches can bring such claims. Similarly, it's not the case that an entity pursuing profit cannot bring a Free Exercise claim, since individuals engaged in business can bring such claims. So why not corporations?

The key for Verrilli seems to be in the combination of the two. Specifically, he argues that a for-profit corporation cannot 'exercise religion' in the sense of how RFRA uses that phrase. So for Verrilli, what is at issue is not whether a corporation is a 'person', but whether a for-profit corporation can 'exercise religion'.

Here we get into the nitty gritty of statutory interpretation, which can be rather mind-numbing to a non-lawyer, so feel free to skip this paragraph, if you wish. On Verrilli's side is the fact that 'exercise of religion' and 'religious exercise' are circularly defined throughout RFRA and related laws. On the one hand, this means that the definition does not obviously require the Court to include situations such as the present cases. But on the other hand, the Court would also be free enough to interpret 'religious exercise' more narrowly.

Where I myself wish Verrilli had gone into more detail was in explaining his reasoning: what is it specifically about a for-profit corporation that makes it so that it cannot 'exercise religion' for legal purposes? Is there any sort of for-profit organization that can 'exercise religion', or is it a blanket interpretation covering all for-profit corporations? If a corporation is exclusively in the business of selling the scriptures of a single religious faith, is it still impossible to say that it is not exercising its religious beliefs? Compare and contrast with a non-profit corporation that gives away Bibles, which Verrilli would seem to say is exercising religion. I want to better understand the government's reasoning that cogently distinguishes those two, in a way that says that the one is 'exercising religion' but the other is not.

This wish of mine also comes out a bit when Verrilli and Alito are discussing the fact that a corporation can bring a racial discrimination claim even though, strictly speaking, a corporation does not have a race. Verrilli explains the difference as being that, while in both cases you have to interpret 'person' to include corporations, here you also have to interpret 'religious exercise', which can theoretically be interpreted in a way such as to exclude for-profit corporations. But he seems to ignore the fact that in a racial discrimination case you also have to interpret 'race', which can also theoretically be interpreted in a way such as to exclude for-profit corporations. So it's not like here we have more terms needing to be defined in one instance than the other. So we're right back to what Alito's question was digging at: how does a court distinguish between a corporation's 'race' and a corporation's 'religion', and why can't one have both, one or the other, or neither, depending on the circumstances?

Anyhow, enough of my questions; back to the Justices'.

Finally, after having remained silent for the duration of the oral argument, Justice Breyer jumps in and steers Verrilli towards the 'least restrictive' question. Let us assume, Breyer posits, that Hobby Lobby and Conestoga have sincere beliefs which are substantially burdened by ACA. And let us assume that the Court finds that the government has a compelling interest to nevertheless provide contraceptive coverage to women. What about RFRA's requirement that the pursuit of that compelling interest be the 'least restrictive' means? Is the requirement currently made of for-profit employers the means least restrictive to their religious freedom? Wouldn't it be less restrictive for the government to foot the bill, rather than requiring the employer to pay for it? Or couldn't it require insurance companies to cover the cost?

This is a question which rarely gets brought up in popular discourse about the Hobby Lobby case, but by the time you get to RFRA's 'least restrictive' requirement, it's no longer a question of whether women should have the right to contraception. The question at that point is instead, on whose dime will that right be realized? Most of the time the question of 'on whose dime' is a public policy question: what political party is setting policy, what is their economic theory about government subsidies, what is their political theory regarding government intervention, &c.? But the 'least restrictive' requirement in RFRA means that it is also a legal question — one which must also consider the rights, in this case, of the religiously minded employer. And that is the end from which a court must tackle the issue.

This is something that Kennedy has been hinting at throughout the discussion but only comes around to making it explicit late in Verrilli's argument. Take the example of religious corporations. They receive an exemption (or an accommodation, depending on the corporation's exact nature) from the mandate that they pay for contraceptive coverage. But the government has admitted that those exceptions were not compelled by RFRA's requirements, but were compelled simply by policy decisions of the Department of Health & Human Services.

But wait a second, Kennedy asks, if that was a policy decision — not a decision based on constitutional requirements — how can you say that there really is a compelling interest to make this sort of requirement of employers? Doesn't the fact that the government, of its own free will, granted numerous exceptions to the mandate undermine the argument that there is a compelling interest? How can you have a compelling interest which excepts tens of millions of American employees?

In rebuttal to this, Verrilli points out that a number of other laws for which the government has a clear compelling interest (e.g., tax laws, the Americans with Disabilities Act, Title VII of the Civil Rights Act, &c.) also have many exceptions, but that doesn't mean the government isn't furthering a compelling interest with those laws. So perhaps the Court is reading too much into exceptions when determining whether the contraception mandate is a compelling interest.

Appropriately enough, however, the real stinger of the entire oral argument comes at the end — from Justice Kennedy, no less. The hole in the government's position, Kennedy thinks, is that it would also, in theory provide no recourse if a law required a for-profit corporation to provide abortions. A for-profit corporation would have no way to be excepted from that mandate under RFRA. Under the government's understanding, a for-profit employer cannot 'exercise religion' and therefore cannot have a religious objection to paying for abortions.

This, I thought, was a rather stinging jab from Kennedy. He had to touch one of the third rails of politics to make his point, but he made it in a rhetorically devastating way. Verrilli knew it, too. The only response he could give was that, in reality, there is no law on the books that requires such. But to this, Roberts lays a really clever trap that brings Kennedy's criticism and this case together. I've copied the exchange below verbatim.

GENERAL VERRILLI: If it were for a for-profit corporation and if such a law like that were enacted, then you're right, under our theory that the for-profit corporation wouldn't have an ability to sue. But there is no law like that on the books. In fact, the law is the opposite.

CHIEF JUSTICE ROBERTS: I'm sorry, I lost track of that. There is no law on the books that does what?

GENERAL VERRILLI: That makes a requirement of the kind that Justice Kennedy hypothesized. The law is the opposite.

CHIEF JUSTICE ROBERTS: Well, flesh it out a little more. What there is no law on the books that does what?

GENERAL VERRILLI: That requires for-profit corporations to provide abortions.

CHIEF JUSTICE ROBERTS: Isn't that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions. I thought that's what we had before us.

Roberts is right. That is exactly the case that is before the Court. The reason Hobby Lobby and Conestoga object to covering the four methods of contraception at issue is because the effect of their use constitutes, in their view, the abortion of human life. They don't object to contraception altogether (though perhaps a Catholic corporation might); they object to covering these specific forms precisely because of their purported abortifacient nature.8

Still uneasy with the government position, the Court proposes another scenario — one coming from the real world. Denmark recently banned the slaughter of animals without first stunning them. As it happens, some conservative interpretations of kosher rules forbid stunning an animal before slaughtering it. Thus, the effect of the law has been to effectively prohibit the practice of conservative kashrut. Under the government's position, a corporation of kosher butchers would not be able to make any claim against such a law in the United States because it is a for-profit corporation.

The Justices take the example one step further and point out that if there were several butchers working together, they could make a claim so long as they did not incorporate. But once they incorporate, they are no longer able to make a claim, even though the primary purpose of the corporation is, at heart, religious. This strikes some of the Justices as a patently absurd reading of the law.

These examples admittedly make the government's position a difficult one. That doesn't mean the position is an incorrect one, but it does mean it's a more difficult one to justify. Either one has to say that the hypothetical of requiring employers to pay for abortions is ok and the hypothetical of prohibiting kosher practice is ok; or one must find a way to distinguish those undesirable cases from the present one. Verrilli couldn't find one when on the spot before the Court, but that doesn't mean one can't be conceived with more thought.


If you made it this far, I congratulate you on your endurance. I've seen so much misinformation regarding the case that I wanted to be certain that I spelled out the legal issues as fully as I could. I also wanted to make sure that I distinguished the legal questions from the political question of whether one thinks ACA is a good law or whether ACA is an economically sound way of addressing healthcare. While those are important issues, they are not what the Supreme Court is concerned with in this case.

In summary, below are the questions with which one must begin any critical discussion about the Hobby Lobby and Conestoga cases. I think the case neatly divides into these four 'compartments' of questions, addressing the major legal issues at stake.

Corporations: To what extent can a for-profit corporation 'exercise religion'? Can a non-profit corporation 'exercise religion'? If so, how can the two classes be distinguished? And how do each compare to a local church congregation or synagogue, both of which are also often incorporated under state law? Are we willing to say that no for-profit corporation can ever bring a freedom-of-religion claim, even if the freedom at stake is kosher laws? If not, how do we draw the line in law?

Substantial Burden: What constitutes a substantial burden on a person's religious exercise? Is that burden mitigated by third-party interests? Or are third-party interests better categorized as the compelling interest (see below)? By how much should cost of non-compliance differ from the cost of compliance?

Compelling Interest: What constitutes a compelling government interest? How do we consider the interests of third parties, such as the employees here? How compelling is the government's interest in making certain that everyone has access to contraception? And does that interest extend to having employers pay for such coverage? And to what extent can existing exceptions undermine the claim of compelling interest?

Least Restrictive Means: Are there any means less restrictive to religious liberty of employers than the method used here? With non-profit religiously affiliated corporations, the government pays for coverage, rather than employers: is that a viable method with for-profit corporations as well?

And so I hope these questions help to frame the way you think about the Hobby Lobby and Conestoga cases. I hope they generate robust discussion and debate as well. As always, I don't aim to tell you what conclusions about a case you ought to have; rather, I am interested in giving you the legal framework necessary to discuss a case intelligently and think about the important legal issues it invokes. I hope this article has been successful at doing so!

1 Note that in law, 'corporation' is not a synonym for 'business'. A corporation is simply multiple persons who are, together, treated as a single entity. It is an entity created by law and exists only for the purposes of law — a 'legal fiction'. Thus, most business are corporations; many religious congregations and denominations are corporations; many non-profit organizations are also corporations; and many municipalities are also incorporated. This is not to say that distinctions between the types of corporations do not exist; I merely wish to point out that, throughout this article, 'corporation' encompasses the full legal range.

2 'Compelling interest' is not a precisely defined concept, but rather signifies that the government must have especially strong motivations, central to the role of government, for enacting the law. Something that is more necessary than it is preferred. 'Compelling interest' is the difference, say, between levying taxes and regulating the price of milk.

3 To be clear, this is not, however, to say that every Catholic or evangelical Christian will apply their religious beliefs (which themselves may vary) to their business in the same manner.

4 The gossipy human interest side of this story is that Mr. Clement was Solicitor General (that is, the person who usually represents the federal government before the Supreme Court, a post also previously held by now-Justice Elena Kagan) under George W. Bush and also represented Congress in the DOMA case U.S. v. Windsor. Clement and Verilli, the current Solicitor General representing the government in these cases, also faced off against each other in oral argument in the previous Supreme Court case involving ACA, National Federation of Independent Business v. Sebelius.

5 Please note that the hypothetical here is not the government requiring people to be immunized, but requiring employers to provide insurance coverage for immunizations.

6 Speaking of taxation, one of the lightest moments of oral argument came when Clement was talking about the consequences of not complying and an sly reference was made to National Federation of Independent Business v. Sebelius. The exchange went as follows:

MR. CLEMENT: Comparing the $2,000 penalty to the cost of the health care is a false comparison.

JUSTICE SOTOMAYOR: It's not called a penalty. It's called a tax. And it's calibrated —

CHIEF JUSTICE ROBERTS: She's right about that.


7 Note that the option of providing comprehensive healthcare, except for contraceptive coverage — i.e., the status quo for each of these corporations — is actually the financially least feasible, since a $100-per-employee-per-day tax is imposed on employers who provide insufficient healthcare. This would result in a yearly tax burden of $36,500 per employee instead of the $2,000 burden for not providing coverage at all.

8 I say 'purported abortifacient nature' because the actual function of the drugs and devices at issue probably do not actually cause an abortion. I'm honestly not up to speed on the science of this area and so I cannot say with any authority one way or the other. But whether they are actually abortifacient or not is not an issue before the court, and so it is irrelevant for the case as it exists currently.

19 December 2013

Duck the Dynasty of the Safe

As some of you may already know, Phil Robertson, one of the stars of the A&E series Duck Dynasty, was yesterday put on indefinite 'hiatus' after making remarks regarding homosexuality in an interview with GQ. One of the most remarkable aspects of this turn of events was the speed with which A&E acted. The GQ interview was published yesterday, and within about 12 hours or so, A&E announced that Robertson would be put on 'hiatus'. Not even a full news cycle had passed between the offending remarks were published and the network decision.

Since Robertson's remarks were essentially an unnuanced and brash restatement of the traditional Christian teaching on homosexuality (views which no one should have been surprised to find Robertson held), the incident is certain to spur up heated discussion on whether A&E's decision represents a growing anti-Christian sentiment on its moral teaching about sex. I am not writing to enter that conversation; I have very little interest in throwing my hat into that ring on either side. (I might also say that I have never seen the program, not even isolated clips.)

That is not to say, however, that I have no criticism of A&E for their action. When they made the decision to suspend Robertson, they were essentially making a public relations–related business decision; and being an entertainment corporation, I do not fault them for that. But I do have reservations about whether it was a well-considered business decision. Firstly, the rapidity with which A&E made the decision almost excludes the possibility of all the implications being thoroughly thought through. But more strongly, I'm generally skeptical that, for a show like Duck Dynasty that 'least negative' business impact come by suspending Robertson, as opposed to, say simply distancing the network from Robertson's comments (as is often done with controversial statements, including those which are editorially permitted to be made in programs themselves).

Even still, my main criticism is not of A&E. Rather, the thing that really concerns me in what surrounds this incident is the cultural norm which it evinces. This comes out in a column written by James Poniewozik for Time.com. In the piece, he points out that few doubted that Robertson held the beliefs which he made explicit in the GQ interview, but that no one was truly bothered by that because those views remained a subtext to his explicit traditional Christian values. In fact, the family's traditional faith was a big factor in the show's success. But when the interview caused that subtext to become text, all of a sudden a factor of success became a PR problem.

I think there's something to Poniewozik's theory, but it is also, on some level, a bit naïve. Given both the prominence of homosexual issues in modern cultural debate and the obvious cultural milieu in which Robertson himself swims, one would have to exercise a great deal of cognitive dissonance to be generally ok with his presumed views while they remain unexpressed but also to be genuinely indignant when he does express those views. Furthermore, what does it mean for the 45% of Americans who are in general accord with Robertson on the issue?1 Does that mean that the tolerance of 45% of the nation hangs on a knife's edge of subtext and text? And what of, say, Pope Francis whose views on homosexuality are of the same substance but different in tone; yet whom also was name person of the year by the gay periodical The Advocate?

But what I want to really want to zero in on is one phrase from Poniewozik's article. In making his case for the subtext/text framework, he refers to 'those of us who maybe just want to watch a family comedy about people outside a major city' so long as those people aren't 'thumping gay people with their Bible' as being part of the contingent who reacted adversely to Robertson's comments. I find this statement highly problematic, especially in light of the rest of the article and given my own experience with others who would be included in his 'those of us' demographic.

The problem with Poniewozik's statement here is that it is a manifestation of what I call the Culture of the Safe (or for pun purposes, Dynasty of the Safe in this article). What he is describing is certain duplicity. At once he wants to be both exposed to entertainment version of a non-urban family, but he does not want to be exposed to the full reality of such people — a delicious irony given that Duck Dynasty finds itself within the broad category of 'reality television'. In other words, Poniewozik is describing a desire to be exposed only to the 'safe' versions of those people who are different from us. Such a desire is not one that understands the full implications of diversity and of a plural society. Rather, it seeks to remain blissfully ignorant of how the other half lives, whoever that 'other half' might be. As an NPR story put it, at its heart, Robertson's crime is that he stopped being the safe 'Show Phil' and became the 'Real Phil'.

Now, I understand that in the case of Duck Dynasty, we're talking about entertainment, pure and simple. No one seriously thinks that the show has a documentary quality, despite the label 'reality television'. But this Culture of the Safe in not something restrained to this one incident. It is something which is quite pervasive in our society. Too often when people in our society seek new experiences, they seek out 'safe' versions. And so rather than actually encountering new experiences, they find themselves having slight variations on the experiences to which they are already accustomed.

As someone in New York City, I see this whenever I venture into Times Square. Each year millions of tourists from outside the city flock to Times Square to experience the Big Apple. But as most New Yorkers will tell you, Times Square is really nothing like New York City; it is merely suburban American with a slight urban flavor. It is a version of New York which is safe for non–New Yorkers.

Lest one think that I'm simply picking on Poniewozik, A&E, GLAAD, and others that have spoken out against Robertson, let me offer this reassurance: where I actually see this most often (and this is partly because of where I spend my time) is within the evangelical Christian church. The Culture of the Safe is the reason why Christian Contemporary Music is like it is: Top 40 with 'uplifting' lyrical content. The Culture of the Safe is why many youth programs are simply popular culture bathed in a veneer of morality.

It is also present in the 'hipper' sectors of modern evangelicalism, where more lip service is given to 'engaging the culture' and exposing oneself to non-Christian sources, but really it's just a new variation on Poniewozik's safe subtext/text framework. Rather than challenging the viewer or the artist in the ways that art, music, and literature really can, it reaffirms one's existing condition while giving the false impression of being challenged. See, for example, the list of likely culprits in an article last year from Curator on Stuff Christian College Kids Don't Like.

The real problem with the Culture of the Safe — regardless of who indulges in it — is its sinister deception. For the manifestations of the Culture of the Safe give the appearance that they are exposing their participants to other perspectives, ways of thinking, and lifestyles; but the true meat of 'the other' is never actually exposed. Rather, only the palatable aspects of 'the other' — the aspects which define the core of what makes 'the other' truly other — are put on display. One sees merely a string of simulacra. And so rather than gaining a better understanding of the world, and thus enriching one's life through exposure to new ideas, one is left in a place of satisfied and deceived complacency.

And so, I think a more responsible reaction to Robertson's comments would be for viewers — whether they agree or disagree with his comments — to recognize that they are part of the true reality. Rather than seeking a safe and sanitized version of the duckcall-making industry of northern Louisiana, viewers ought to want this as an opportunity to be challenged to see the world from a different perspective; as an opportunity to duck the dynasty of the safe and to show oneself the complex reality of the world as it is, in all of its uncomfortable fullness.

18 September 2013

Church Isn't for Learning

At Redeemer Presbyterian Church in New York City, a common question to ask when meeting someone is, 'What service do you attend?' Redeemer actually has eight services each Sunday, in three different locations, between 9:30am and 7pm. The different services have slightly different liturgies or musical styles, different main preachers (when Tim Keller isn't preaching, that is), and different demographics. And so finding out what service someone attends not only lets one know when and where they can be found on any given Sunday, it also allows for innocent stereotyping: 'Oh, you attend the 11:30 West Side service? I see....'

When I get asked the question, however, my answer usually throws the questioner for a loop — even when the questioner is one of the pastors. You see, I attend two services each Sunday. ('Yes, each Sunday,' I often have to repeat.) The follow-up question is nearly as predictable as the physical reaction: 'So, is it usually different people preaching at the two services?' — a valid question since, even though there are eight services, the Tim Keller only preaches at four; other pastors preach at the other four.

As it turns out, it's usually the same preacher at both services, preaching the same sermon. (I actually have a spreadsheet that demonstrates why this is the case, 90% of the time.) Even when it's different preachers, though, they're always preaching on the same text. So when I attend two services, I usually hear the same sermon twice; though occasionally I'll get two different sermons on the same text. At this point, the questioner will either ask, 'Why?' — if I haven't already preempted the question and rolled right into the explanation.

The reasons are actually a bit complicated and so my answer to the 'Why?' question isn't as rote as the earlier questions. Part of the reason is habit. For seven years at my previous church, each week I attended both morning and evening services — not at all unusual in that church. And since the sermon and order of worship were entirely distinct at the two services, there wasn't the same 'repetition' issue. The same can be said for much of my childhood when my family would attend both morning and evening services (not to mention Wednesday evenings). And so it's entirely natural for me to anticipate two services every Sunday.

Part of the reason is for reasons of community. The morning service I attend is the one I have attended since I moved to New York; it is the one whose liturgy I find most amenable to worship; and it is the one I serve at each month. And the evening service I attend is the one which my small group attends together, as well as other friends.

But the question remains: why doesn't the fact that the same sermon is preached at both services deter me from attending both? At the root of that question, however, is an implicit and problematic assumption that the reason one goes to church is to hear a sermon. Thus, the reasoning follows, if one will hear a sermon one has already heard earlier that day, then the core reason for going to church is no longer present.

There are two main problems with that reasoning. The first is that hearing a sermon a second time around is not a futile exercise. One can certainly absorb new ideas or better comprehend the same ideas the second time around. The number of students who record lectures for later review — let alone re-read assigned readings or review their own notes ad nauseam — is evidence enough of that.

But the second problem with that line of reasoning is more fundamental to what we understand the very purpose of a corporate worship service to be. It is absolutely true that Reformed church traditions make the sermon central to the service in a way that other liturgical traditions do not (though Reformed sermons still often account for less than 50% of the length of the service). Compare the 10-minute Catholic homily to a typical 30-minute Presbyterian sermon. For an even starker contrast, look to the Matins and Evensong services from the Anglican Book of Common Prayer, which often have no preaching. I am certainly not criticizing that sermon-centrality (more on that later) — nor do I wish to criticize liturgies which give less of a role to preaching — but I do wish to criticize the view that sees the learning of something from the sermon as the core purpose in attending a worship service.

This all ought to be rather obvious, since the principal reason the Church comes together corporately weekly for a worship service is actually right there in the title: worship. It is not a sermon service, but a worship service. The Church gathers on the Lord's Day to worship. The exposition of Scripture in a sermon is simply one of the liturgical elements which encourage and guide us in our worship.

The reason the Reformed preacher preaches from Scripture stems from one of the foundations of the Reformation, sola scriptura: Scripture is the only infallible rule of faith and practice. We come to know God from Scripture, by which he makes himself known to us. If we are to worship this God, we must know this God; if we are to praise him for his attributes, we must know his attributes; if we are to thank him for what he is done, we must know what he has done. And so the role of the preacher is to explain to the congregation, from Scripture, who God is and what he has done so that they can better worship God.

And so, yes, the sermon does serve as something whereby we learn something about God. But within the context of a corporate worship service, that which is taught is not simply taught so that we might acquire knowledge as an end of itself. The reason why preaching is included in the worship service itself is so that it might aid us in our worship. To an extent, this is true every time we learn about God, for, as the Westminster Larger Catechism famously says, our 'chief and highest end is to glorify God, and fully to enjoy him forever.' And so all that we do in our life ought to point us toward that end.

Trevin Wax recently made a similar point over at his blog on The Gospel Coalition's site. In the article, he describes how a conversation with his son made him newly realize that the reason we gather each Sunday is to worship God. He describes how his son one day claimed, 'I know all the Bible stories now and all the songs we sing. I don't think we need to go to church every week. Why don't we just wait until there's something new to learn?' But as Wax points out to his son, church isn't for learning. Sometimes we may hear the Word of God preached and not really learn any new facts. In such cases, we should allow the sermon to remind us of what we already know and to strengthen our awe of him.

One model for this understanding of what doctrine (i.e., teaching) ought to mean for us is found in the writings of Paul. So often in his epistles, Paul's teaching of orthodoxy climaxes in fervent praise. (E.g., Rom 11:33ff.; Eph 3:20ff.; 1 Tim 1:17; &c.). Paul intimately and thoroughly knew everything that he was writing already, and yet his pen still exploded in worship as he wrote. This is analogous to the relationship that ought to exist between preaching and the rest of the worship service. Sound doctrine, as found in the Word, ought to inform our worship. And, as if a feedback loop, worship itself can also prepare us to hear God's Word preached more clearly and powerfully.

Carl Trueman, commenting on Paul's doxology in 1 Timothy, has said, 'Teaching that does not terminate in praise is not true teaching; it has missed the point that doctrine is the means to the meaning of life, which is the worship of God. Praise that is not rooted in doctrine is not true praise; it is simple fulfillment of personal aesthetic tastes. True praise is rooted in the identity and action of God, because it is a response to the identity and action of God.' Because worship is a response to doctrine, every time the Word of God is faithfully preached, it ought to incite us to worship. We ought to be able and eager to respond regardless of whether what we are responding to is novel or fresh.

This is not to say, however, that it is impossible for sermons to become monotonous week to week. This can occasionally happen in all churches: one might find that every sermon seems to perennially have the same content. And so rather than finding ourselves reminded of who God is, we find ourselves tuning out. I would suggest, however, that when this happens, it is because the preacher has strayed from the what the Scripture is actually saying and is preaching with an agenda or exegetical laziness. Faithful exposition of God's Word, however, should not result in boredom, but should always incite awe and praise.1

There is one more observation that I would like to add at this point. One of the things about Sunday worship that I have subtly emphasized throughout this article is the fact that this worship is thoroughly corporate. It is a way for the entire local body to unify around the public act of glorifying God. A well-formed liturgy shaped by the Scripture being preached that day can further aid that unification. The sermon can essentially announce, 'Today we meditate on God's justice and worship him for being just,' while the hymns, prayers of confession, and other Scripture readings further focus the entire congregation upon that theme. Or perhaps the sermon is an exposition of a certain aspect of God's law, or his goodness, or his sovereignty.

There is a certain ineffable power to such a scene: an entire community assembling to praise God together, with one voice, for who he is and what he does. Some in the congregation will learn of God's justice for the first time, some will find new realizations of the shapes that justice can take, while others will find deep comfort in being reminded, for the thousandth time in their lives, of the unfathomable depths of God's justice. Everyone may have his own peculiar reaction and reason that week for praising God for his justice, but the congregation as a whole is nonetheless united objectively around God and his justice.2

And that is why I go to two services each Sunday, even though I might hear the same exact sermon twice. Not only will I sing different songs and pray different prayers (and yes, even confess new sins) at the two services, but I am also given the opportunity twice each Sunday to be reminded of why I worship God and to join with an entire body of fellow Christians to worship him in response to that reminder of who he is and what he has done.

And so I would challenge you this week, as you attend church this week, to go into it with the purpose not necessarily of learning something new, but with the purpose of worshiping God and allowing the entire service to incite and inform that worship.

1 I'm sure to step on someone's toes when I say this, but I do think that there is a tendency within so-called gospel-centered preaching to sometimes stray from what a passage actually says in order to fit it into some predetermined rubric. I sometimes refer to this as 'the third point [of a three-point sermon] is always Jesus' preaching. Gospel-centered preaching is actually something of a recent phenomenon and can too easily become formulaic and thoughtless and thereby unrooted in the passage being preached. Since that is a much larger topic, though, I'll be satisfied to leave my criticism at that for now.

2 I'll be among the first to admit that I think the liturgy at my church can sometimes seem haphazard — as if this week's songs, prayers, and confessions were selected at random out of a hat or based on the instrumentalists, with perhaps a song we haven't sung in a while — as opposed to being selected for focusing the congregation's attention on the Word and the ways in which it incites us to worship. But this is a minor point, which I'll also concede as a philosophy of liturgy that not all share.

15 August 2013

The 'Virginity Mistake' Mistake

One of the recent articles that has been making its rounds throughout the Interwebs and blogospheres of various ilks is Jessica Ciencin Henriquez's piece in Salon, 'My Virginity Mistake'. There have been various reactions and commentaries on the piece, including this one on The Gospel Coalition's main blog.

Most of the responses have dealt with the concept of 'sexual compatibility' that Henriquez taps into throughout the article. Henriquez doesn't use the word 'compatibility' in the article (and 'chemistry' only once towards the end), but that is what many have homed in on as the fatal flaw. If she and her fiancé had had sex before marrying, so she claims, they would have realized their sexual incompatibility and not gotten married.

But as Hafeez Baoku writes at TGC, 'The primary problem with this notion of sexual chemistry is that it focuses sex on pleasure and performance. . . . From the many conversations I've had with those who are happily married with healthy, God-honoring sex lives, I've learned that true sexual compatibility, if we must call it that, happens when two people commit themselves first to God, and then to each other.'

But I would suggest that the problems with Henriquez's article are evident much earlier than any discussion of her sexual life. As a reader, I anticipated the marital issues that Henriquez would experience before I knew any of the details of her and her husband's sex lives.

[At this point it is prudent to note that I don't know anything about Henriquez other than what she discloses in the article. This post is not an attempt to give a full psychological profile or definitively assert the reality of her situation. Rather, I am hear donning my critical thinking hat, looking at the evidence that Henriquez presents to make her case, and demonstrating that the evidence she presents does not support that conclusion at all; rather, it would seem to much more sensibly support an altogether different conclusion.]

The first red flag in the article comes in the third paragraph when Henriquez notes that she 'didn't buy into a word of' the sexual purity talk she heard as a teenager. Now, this is partially understandable. Given her description of the purity talks which she experienced as a teen — which may perhaps be due a large grain of hyperbole salt — it's no wonder that she was skeptical of 'marrying Jesus' and so forth. Having seen first-hand myself similar programs, it's symptomatic of a large part of evangelical ecclesiology in the past few decades: good intentions coupled with a desperation to appear 'cool' to hip young adults (not to mention atrocious music and emotional manipulation). The effect is so often transparent disingenuity, something which Henriquez herself seems to have picked up on.

The result of this years later, as Henriquez is now writing her article, is no surprise: Henriquez was predisposed to find fault in the philosophy. In psychological terms, one would say that she was prone to confirmation bias: she was biased to read her experiences as confirming her existing expectations that sexual purity was bunk. As with any cognitive bias, confirmation bias often leads to poor reasoning, which is the case here. When Henriquez's relationship fell apart, the scapegoat became her virginity, despite all the other possibilities evinced throughout the article.

The first giveaway is when Henriquez admits that on the morning of her wedding she realized 'how much [she and her fiancé] hadn't learned yet about one another'. This vomit-inducing realization was only exacerbated by her mom letting her know that, due to the sunk costs of the wedding, 'there was no way out'.

Having not myself been a bride on her wedding day, I don't know how typical Henriquez's particular matrimonial jitters are, but it is clear to Henriquez that this moment was significant. Yet a critical reader should immediately notice that her wedding-day hesitation here has absolutely nothing to do with sex in particular, but everything to do with the marriage in general. There is nothing to suggest that, had Henriquez and her fiancé had sex before that morning, that the causes of her anxieties would have been mitigated. It's not like she and her fiancé's only hole in their knowledge about each other was sexual, and that if they had plugged that hole, the skies would have opened up with new divine revelation about each other.

This confusion of sex in particular and marriage in general continues in the way that Henriquez describes their passionless altar kiss and other details about the wedding. But perhaps the most damning anecdote is that Henriquez and her new husband spent the wedding reception in opposite corners of the room, she dancing with her friends, he getting drunk with his. As much as Henriquez may think that this was a warning sign of their sexual incompatibility, the far more reasonable conclusion here is that Henriquez and her husband just didn't much like each other. On the day which symbolized and actualized the culmination of their relationship, Henriquez describes complete lifelessness in that relationship. This isn't a sexual problem, this is a relationship problem.

This ennui continues in the bedroom on their wedding night, where Henriquez shows utter apathy as she and her husband consummate their marriage, and as her husband, in his adolescence, shows little empathy for her. Again, having never been there myself, I'm willing to concede that these are not unusual emotions and events on one's wedding night. Yet once again, where Henriquez sees these as evidence that pre-marital celibacy was a mistake, it is a far more sensible conclusion that what was missing was not sexual compatibility, but mere affection for one another.

But the final argument that Henriquez unwitting makes against her own conclusion comes in the following sentences: 'This was not lovemaking. There was no bond, no sanctity – this was not the amazing sex I was promised from the pulpit. This was disappointment three to four times a week.' [Emphasis original] In her words, 'Had we had sex before our relationship transitioned into a contract, I would have known that there was no passion, no spark, nothing happening between our bodies.'

Here Henriquez betrays herself and closes the case against herself. The problem between Henriquez and her husband was simply that they should not have been getting married — not because they were sexually incompatible, but because they did not love one another. Yes, there was a sexual problem, but the sexual problem was that she apparently thought that amazing sex would allow them to overcome that lack of a foundation of love in their relationship. Would pre-marital sex have demonstrated the fallacy of this belief before their wedding day? Perhaps. But that's not the conclusion at which Henriquez would like us to arrive. Henriquez is instead caught up in sexual compatibility rather than mutual love and affection.

Put another way, Henriquez's problem was not that she 'blindly walked up an aisle' to someone with whom she had no sexual compatibility. Rather the problem was that she 'blindly walked up an aisle', thinking that sex would overcome the fact that she and her husband didn't know and love each other. It's a problem because that is not how sex works.

A proper Christian understanding sees sex as uniting the already existing affections of husband and wife for one another. Sex can create emotional bonds and it can temporarily mimic affection or resurrect old affections, but it cannot create affection where none exists to begin with. To borrow Henriquez's own words: 'The key is to figure that out before you find yourself walking down an aisle.' Yes, it is sad that Henriquez's sexual education as an adolescent did not teach her that (as is likely the case for many young Christians), but it is even more sad that she still has not learned that, instead making the mistake of replacing an old misunderstanding of sex with a new misunderstanding of sex.

12 August 2013

Coins: What Are They Good For?

A few days ago I was repaid a debt with a large amount of cash. This created an unusual situation for me, as I don't normally carry cash. I may keep a few bucks in my wallet for an emergency where only cash is accepted (a carry-over from my days in Philadelphia, where cab drivers would consistently lie about their credit card machine being broken). But here I was, stuck with over a hundred dollars in cash, not entirely sure what to do with it.

So the past few days I've been slowly spending that cash. One of the things I absolutely hate about using cash for purchases is change. I loathe change. It's bulky, it's heavy, and just an overall nuisance. I say this even though my wallet has a small coin purse, whose only consistent tenant is my bicentennial half-dollar, which I like to bring out whenever a coin flip is needed. But the more change in that purse, the bulkier the wallet. And since my wallet already has enough bulk from my various museum membership cards, I'd rather my derrière not gain a few inches due to a bunch of useless change. But that's what I'm stuck with for a while, I suppose.

Another thing that happened this week is I was reading about pre-decimalisation British currency. This interest in British currency is a common one for me, one that I indulge probably on a bi-monthly basis, occasionally branching out into European sous, thalers, reales, and groschen. Those who have visited Britain may know that the basic unit of currency is the pound and that each pound consists of 100 pence — much like how the United States dollar consists of 100 cents. But that has only been the case in Britain since 1971. Before that year, Britain used a non-decimal system: a pound consisted of 20 shillings and each shilling consisted of 12 pence. Thus, 240 pence per pound, reminiscent of the complicated systems of Imperial units of weights and measures (feet, inches, furlongs, ounces, gallons, &c.).

In 1971 Britain modernized its currency and converted to a decimal-based system. For a lover of esoterica, like myself, this also meant the loss of a convoluted system of historical denominations and coinage. No more crowns (5 shilling coin), guineas (one pound, one shilling coin), or groats (fourpence coin). Also gone were the days of listing prices with the so-called £sd format — £5.4s.6d meaning 'five pounds, four shillings, sixpence' — or using the slash for lower-priced items — 5∕3 meaning 'five shillings and threepence'.

But most importantly, for my mind as it has been the past few days, when British currency was decimalised, it also meant the demise of the farthing.1 The farthing was one of the many, many coins in the pre-decimal system and was valued at ¼ penny (the name 'farthing' derived from 'fourth'), or 1/960 pound. Think about that for a second: you could actually carry around a coin worth ¼ penny. For much of history, the British pound had enough economic value, that it warranted minting a coin worth a bit more than 0.1% of that value. It would be like the United States issuing a coin with a tenth of a cent.

Here's where all of this ties together: the minting of a coin carries with it the implication that that coin has a certain usefulness in the marketplace. When that coin is an extremely low-value coin, the specific implication is that certain items in the marketplace have a value low enough that, were said coin not to exist, you would have to overpay for it. For example, during World War II in Britain, one could buy farthing buns for — you guessed it — a farthing each. Four farthing buns would cost you a penny. And so as late as the 1940s, the farthing was still a useful coin because there were items worth only £1/960. By the time Decimal Day rolled around in 1971, inflation meant there was no longer a need for a coin worth £0.001, and the penny (£0.01) instead became the lowest denomination.

With all of this running through my head and with me spending cash left and right, I began to wonder: has the United States dollar outgrown the need for coins? As I thought about it, my initial conclusion has been that there is little need for any coin other than the quarter. Maybe the dime, too.

Think about it for a minute. How many items do you purchase that couldn't be rounded off to the nearest quarter-dollar? Would it be all that significant if that pack of batteries priced at $4.69 were instead $4.50 or $4.75? Maybe it's my own aversion to cash, but similarly, when a cashier hands you change with a bunch of pennies and nickels, does it not become your goal to get rid of the change as quickly as you can? Or how many of us immediately dump those pennies and nickels into the tip jar?

But here's the most significant question: how many things can you name that cost a dime or less to buy? There used to be such a thing as penny candy; dollar stores used to be five-and-dimes; and giving your opinion was worth two cents. But nowadays, with the exception of what I call 'change candy' — the single-item pieces of candy at the register in mom-and-pop shops — or smaller pieces of hardware, there isn't much worth so little that a quarter would be grossly overpaying for it. Just as the farthing became outpriced in the UK, so it would seem with most US coins.

Compare also to the history of the Vietnamese currency, the đồng. Previously each đồng consisted of 100 xu, like our dollars and cents. But inflation decreased the value of the đồng so much, that today most transactions occur in the thousands of đồng and the xu is no longer used. For example, a loaf of bread is approximately 20,000₫ and a car can cost 1 billion đồng. And so, sensibly enough, the lowest denomination of bill in Vietnam is 200₫.

The biggest obstacle I see to eliminating coins in the United States, aside from cultural inertia, is sales tax. For example, 7% tax on a $4.75 item is $0.33. In a system where quarters are the smallest denomination, how do you pay $5.08? But actually, when you think about it, we already know how to accommodate this sort of thing, because a 7% tax on a $4.75 item is actually $0.3325, but the cashier/government doesn't require you hand over an addition quarter of a cent. So just like taxation adjusts to the fact that the United States doesn't have farthings, it could also theoretically adjust to a hypothetical where we don't have pennies, nickels, or dimes.

Of course, eliminating coins would require some adjustments from the market, as it tries to figure out whether that item currently priced at $4.59 would be better priced at $4.50 or $4.75, but it wouldn't be the first time the market has adjusted currency changes. The restaurant franchise Chipotle, for example, has already done that preemptively, setting their prices so that, after tax, you pay in round figures (e.g., in New York City, a fountain drink is $1.87, or $2.00 after tax; a burrito is $7.81, or $8.50 after tax). Britain adjusting to the new decimal system in 1971 is also a perfect example of this happening historically, nationwide. In fact, most world currencies used to be non-decimal-based until the Enlightenment began to decimalize everything.

Would the elimination of coins actually be good for the United States? Or is it just my own wishful thinking as I try to burn through my abnormally large cache of cash over the next week? The latter is definitely true, but I would like to think that it would also be good for everyone's wallets, including the U.S. Mint's. Pennies and nickels already each cost more to produce than they're worth. But this is by no means a serious policy proposal; until someone actually does the economic study, I'm fine with it being a mere figment of my imagination. If nothing else, though, eliminating everything but the quarter would mean that all of your coins would be usable in those pesky coin-fed washers and dryers.

1 Strictly speaking, the farthing had been eliminated several years earlier, in 1960. But this was, in part, due to the run-up to Decimal Day in 1971, when the currency would fully switch over.

28 March 2013

Hollingsworth v. Perry Illuminated

The big legal story of the week is that the Supreme Court is hearing oral arguments in two cases regarding same-sex marriage. The first is Hollingsworth v. Perry, which concerns whether Proposition 8, a referendum to amend the Constitution of California to prohibit a person from marrying someone of his/her own sex, is valid under the United States constitution. The second, United States v. Windsor, concerns the constitutionality of Section 3 of the Defense of Marriage Act, which defines 'marriage' for the purposes of federal laws as 'only a legal union between one man and one woman as husband and wife'. This article will cover the former, seeking to explain the legal issues at stake in the case and how to begin thinking about the case.

First, let's give the background to the case, in brief. In 2000, Proposition 22, a referendum put to the people of California, was passed with 61.4% of the vote. This proposition amended the state's Family Code to define marriage as 'a personal relation arising out of a civil contract between a man and a woman'.

In a series of cases in 2008, the California Supreme Court found that such legislation was invalid under the state Constitution. In short, the Court found that marriage was a fundamental right and could not be denied to persons on account of sexual orientation.

Since, as every good civic student knows, the only way to override a constitutional ruling is to change the constitution, opponents of same-sex marriage began to campaign for a constitutional amendment. This resulted in Proposition 8, which would amend the state constitution to include the following: 'Only marriage between a man and a woman is valid or recognized in California.' If Proposition 8 were successfully passed, it would effectively override the California Supreme Court's earlier ruling, once again invalidating same-sex marriage in the state. In November 2008, Proposition 8 was successfully passed with 52.2% of the vote.

Part of the peculiarity with Proposition 8 has to do with the process by which it came into effect. California, like some other western states, allows for a wide berth of issues to be decided via direct democracy — by the entire electorate, rather than by elected representatives — a legislative right of the people which was created during the roaring age of old-style progressivism in the 1910s. In California, if 8% of the electorate petitions the government to put a particular constitutional amendment to a vote, the government must do so. If that vote passes by a simple majority, the constitution is so amended. It's worth emphasizing that this is not the case in most states.

With the passage of Proposition 8, proponents of same-sex marriage had two choices: repeal Proposition 8 with their own ballot proposal; or literally make it a federal case. And so a law suit was filed in U.S. District Court against the State of California, claiming that the amendment was unconstitutional under the United States Constitution. After several years of navigating the appeals process, this is the case that is currently before the United States Supreme Court.

One note of important terminology: in this case, the proponents of Proposition 8 are called both the defendants and the petitioners. The former term is because they were the defendants in the original law suit; the latter because they were the party to petition the Supreme Court to hear the case. The opponents of Proposition 8 are called both the plaintiffs and the respondents, for the opposite reasons.

Oral Argument
With that, we enter into the oral argument. There is much more that could be said about the background of the case, but we will discover and discuss those issues as they arise in the argument.

The form of this post will be something of a medieval-style illumination of the oral argument which was heard earlier this week. I will use what the Justices and attorneys actually said in oral argument to work our way through the key points of the case. With any luck, this will allow us to identify all of the things that matter in this case, while also allowing you, the reader, to follow along with the oral argument, should you so wish. But I've hopefully constructed this article to not require you to listen/read along. We'll see how successful I was with that...

First a word on oral argument, what it is, and what it isn't. Oral argument is first and foremost a supplementary element of a Supreme Court case. Before oral argument commences, both parties have already filed briefs which detail their entire argument in writing. In addition to the two parties actually involved in the case, third parties may also file briefs with the Court to argue, on behalf of their interests, for one side of the other. These are called amici curiae: 'friends of the court'. In this case one such amicus curiae, on behalf of the respondents, is the United States Government.

And so oral argument acts as a way for the Justices to question both parties about the arguments they make in their briefs: to clarify unclear arguments; to propose hypotheticals; to challenge assumptions; &c. One might think of it as akin to defending a doctoral thesis. But the key point here is to remember that the case is not decided in oral argument. A bad oral argument, though it may hurt, won't lose you the case; and a good one, though it may help, won't win you one. It is more often decided in the written briefs and in the Justices' own legal research.

You can find both an audio recording and a transcript of oral argument here, if you would like to follow along, line by line. With that, here we go!

ROBERTS: Maybe it'd be best if you could begin with the standing issue.
First thing to note here is that right away, before the attorney for the petitioners (i.e., proponents of Proposition 8) is even able to finish his first sentence, Chief Justice Roberts interrupts him with a question of legal procedure. We are immediately reminded that this is indeed a legal proceeding. I mention this to point out a distinction from a political proceeding.

One of the problems with the discourse surrounding this case is that it treats a legal question as if it were a political question. The question before the Court is not whether same-sex marriage should be a constitutional right, but whether same-sex marriage is a constitutional right. Though the Justices' legal philosophies will lead them in different directions on this point, it is vital to recognize that they all recognize their role as one constrained by the law, as it is. Sometimes it is difficult to distinguish politics and law, as they often overlap, but they are indeed separate disciplines.

The standing issue is exactly a very legal one. That said, if you want to skip the comments regarding standing and continue on to the merits of the case, you can skip the next two headings.

GINSBURG: Have we ever granted standing to proponents of ballot initiatives?
Justice Ginsburg's question introduces the procedural question to which Roberts referred to. I don't want to spend too much time on the procedural question, since it is probably not of general interest to non-lawyers, but it is an important one — in fact, it is likely to be the issue on which the Court settles the case. Here I will treat it briefly; if it ends up being the deciding matter when the opinion is released, I will give it a full treatment at that time.

One of the requirements to bring a lawsuit or defend against a lawsuit in federal court is that the party must have 'standing'. That is, they must have some legal interest in the case, such as being adversely affected by the legal action. For example, if my neighbor slips and falls on the steps in front of her building, bringing injury upon herself, I cannot bring a lawsuit against her landlord on her behalf, because I have not been affected by the injury. She may bring a lawsuit against her landlord, since she has been injured. Likewise, the landlord's best friend cannot act as a defendant in such a lawsuit because he is not directly affected by the action.

All of this matters because the original lawsuit was brought against the state of California. The state was the correct defendant, since the lawsuit sought to challenge a law of the state, namely Proposition 8. But both the Attorney General of California and the Governor (Jerry Brown and Arnold Schwarzenegger) declined to defend the case. When Brown was elected Governor, he continued to refuse to defend the case, as did his Attorney General, Kamala Harris. Without a defense, the plaintiffs would prevail by default.

Fortunately for the proponents of Proposition 8, however, the Constitution of California provides that if the State declines to defend a ballot initiative, the official proponents of the initiative may defend against the law suit.

Ginsburg is right to ask her question, however, because the case is now in federal court, and the Constitution of California can be trumped by the Constitution of the United States when it comes to whether a party has standing in the federal court system. Her question is asking the petitioners to defend their claim that they have proper standing in the case.

SCALIA: I guess the attorney general of this State doesn't have any proprietary interest either, does he?
Scalia's question — a typically leading one — is spot-on and addresses the heart of the standing issue. As he points out, the attorney general would not ordinarily have standing to defend against the lawsuit: there is no potential injury to him regardless of the outcome of the case. But because the law of California entrusts to him the duty to defend such law suits, he may. And this is a legislatively created definition of standing that the federal court system has legitimated.

The ensuing discussion starts to play this out. If the law can assign a right to defend against such a law suit to the attorney general, can it assign that right to anyone? What are the limits of such an assignation? Can it grant it to any citizen it wishes, or must there be some sort of existing relationship between the law suit and the party to which that right is assigned? Remember, this all matters because the federal courts only have the power to decide cases where both parties have legal standing.

If the Court were to decide that the petitioners — the proponents of Proposition 8 — do not have standing, then the Court would not be able to decide the case, and the case would possibly default in favor of the plaintiffs — the opponents of Proposition 8. It would not be unheard of for the Supreme Court to decide a potential landmark case on a legal technicality.

Suffice it to say that the conversation does continue for a good 10 minutes, as the Justices and the attorney for the petitioners discuss legal hypotheticals. But since this isn't the main focus of this article, I'll leave it at that and move on to the merits.

COOPER: The question before this Court is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 States.
Here Cooper, attorney for the petitioners, identifies for us that what is at stake is a legal question. The question is not politically whether same-sex marriage ought to be legalized, but whether the law of the Constitution prevents the government from choosing to prohibit same-sex marriage. The question is whether the Constitution limits the powers of state governments to exclude such a decision. In short, has the Constitution already made this decision for the states?

KENNEDY: Do you believe this can be treated as a gender-based classification?
Here Kennedy introduces us to the nitty-gritty of the legal question, which is going to require some background explanation about how constitutional law works with discrimination. To begin with, we should state that the plaintiffs in this case are claiming that Proposition 8 is a violation of the Equal Protection Clause of the 14th Amendment. That clause reads, 'nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.' This is the clause in the Constitution that, for example, bars the segregation of schools. Perhaps most importantly for this case, it is also the clause with which the Court declared in Loving v. Virginia that laws prohibiting inter-racial marriage were unconstitutional.

So the basic idea of the Equal Protection Clause is that states must treat like things alike, such that they are all treated equally under the law. But like any element of constitutional law, things are never quite that simple. After all, there are certain times when states should be allowed to treat like things differently. For example, even though doctors and dentists are two very similar classes of people, there are differences, and based on those differences, the two professions are regulated differently by states. They are not treated equally by the law. Likewise, I and my doctor are very much identical, but he and I are treated differently by the law for certain purposes. Thus the question is, when can the law discriminate, and when can it not? How should a court scrutinize a law to determine whether a legal discrimination is legitimate or not?

The Supreme Court never being one to make things simple, there are three different ways to answer that question — three different levels of scrutiny which a law may receive: rational basis review, strict scrutiny, and intermediate scrutiny.

Rational basis review is the lowest standard of scrutiny and is the one most often used to examine a law. To pass rational basis review, the law in question must be rationally related to a legitimate government interest. For example, in the case of my doctor: the government has a legitimate interest in ensuring that the residents of the state receive competent and safe healthcare. Accordingly, it requires licensing for the practice of medicine in the state, which entails certain education, the passing of board exams, &c. One who has not met the licensing standards is not permitted to practice medicine within the state and is thus an object of legal discrimination. But because the licensing requirement is rationally related to the legitimate end, it is a constitutional form of discrimination. If, on the other hand, in pursuit of competent and safe healthcare the government were decide to license random citizens to practice healthcare, that would not be a means rationally related to the legitimate end.

It's worth noting that a court, under rational basis review, is asking only whether the government had a rational basis for believing that the law would help it achieve its end. The court is not asking whether that belief actually is correct; courts do not perform such fact-finding, instead leaving that to the political process. Accordingly, rational basis review has historically been very easy to overcome. It's almost a given that if a law is given rational basis review, it will be upheld as constitutional.

Strict scrutiny lies on the other end of the spectrum. If a law receives strict scrutiny, it is almost certainly not going to pass strict scrutiny. For in order to pass strict scrutiny, there must be a compelling government interest (as opposed to merely a legitimate government interest), and the means by which the government pursues that interest must be narrowly tailored and the least restrictive means. Instead of merely needing to show a 'rational basis' for the law, the government must show essentially, that the law is the absolute best way to achieve its purposes, and that those purposes are vital to the exercise of government.

Strict scrutiny is an elevated level of scrutiny that is applied when the discrimination affects what are called a 'suspect class'. That is, a class that, when affected by discrimination, it is suspected to be invidious. Often such classes have been the target of historical discrimination and/or pertain to immutable characteristics. Under current constitutional law, suspect classes include race, national origin, and religion. Strict scrutiny will also often be triggered in cases involving fundamental rights.

For example, if a government were to pass a law that bars African-Americans from being doctors, because the discrimination targets a suspect class (race), the law would receive strict scrutiny. A court would then ask whether ensuring competent healthcare is a compelling governmental interest, and then whether barring African-Americns is a narrowly tailored — i.e., doesn't accidentally include a significant number of people who should be excluded or vice versa — and is the least restrictive means of achieving that interest. Obviously, such a law would fail to meet the standard.

Finally, in between rational basis review and strict scrutiny in intermediate scrutiny. In order to survive intermediate scrutiny, the government must show that it has an important governmental interest (more than legitimate, less than compelling) and that the law's means are substantially related (more than rationally, less than narrowly tailored and least restrictive) to that interest. Currently the only class which will trigger intermediate scrutiny is sex.

Here's why I say all of this now. Kennedy's question, 'Do you believe this can be treated as a gender-based classification?' is getting at the issue of which level of scrutiny to apply to the case. Under precedent, sexual orientation has usually received rational basis review, but there's good reason to believe that the Supreme Court should revisit that conclusion; if for no other reason than that the district court first hearing this case said this case should receive strict scrutiny.

If it is gender-based classification, that would trigger intermediate scrutiny, which would require California to show that it has an important governmental interest is at stake and that prohibiting same-sex marriage is substantially related to that interest. Otherwise, it might require strict scrutiny — as the lower court found it did — or merely rational basis review.

Cooper responds to Kennedy's question by pointing out that 'virtually every appellate court, State and Federal, has agreed that it is not a gender-based classification.' But of course, the Supreme Court is free to overturn those decisions, though it may be hesitant to do so in the face of such overwhelming precedent.

SOTOMAYOR: Outside of the marriage context, can you think of any other rational basis reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them?
Sotomayor here points out what is perhaps an key inconsistency in the defendants' argument. For the defendants freely admit that it would not be permissible for the government to deny homosexuals benefits on the basis of their sexual orientation — which indicates that they may be a suspect class — but that it is permissible for the government to deny them the legal label of marriage.

But the defendants point out that marriage is indeed a different manner. While it would not be legitimate for the government to arbitrarily deny homosexuals certain legal benefits, the very nature of the institution of marriage means that denying someone the right to marry someone of the same sex is not an arbitrary distinction. The defendants' principal argument here is that the state interest in regulating and fostering procreation, something for which same-sex couples are not similarly situated when compared to opposite-sex couples.

But further than that, the defendants also maintain that redefining marriage 'as a genderless institution could well lead over time to harms to that institution and to the interests that society has always used that institution to address,' aside from simply just biological procreation. To this point, the defendants call on the plaintiffs own witnesses which state that 'redefining marriage will have real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be.' And because some of those consequences could be adverse, there is a basis by which the state of California might want to regulate marriage in the way that Proposition 8 does. Justice Scalia jumps in himself to point out that the jury is still out on the sociological effects of adoption by same-sex couples, for example.

COOPER: It is the respondents' responsibility to prove, under rational basis review, not only that there clearly will be no harm, but that it's beyond debate that there will be no harm.
Cooper rightly states what the respondents' responsibility is in the case, but only if the Court decides that rational basis review is the proper standard of review. That is something that the Court will have to decide. If the Court decides to use rational basis review, Proposition 8 will be struck down only if the respondents can show that there is no rational basis for the law.

KENNEDY: I think that there's substance to the point that sociological information is new. We have five years of information [about same-sex marriage] to weigh against 2,000 years of history or more. On the other hand, . . . there are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status.
While Kennedy has a point here, I myself am not certain of its legal relevance. The potential harm of not ruling Proposition 8 as unconstitutional is not all that relevant. I think Cooper is correct to point out that those concerns are proper in the realm of politics, but not in the realm of discrimination law. As he goes on to say, if the law is rationally related to a legitimate interest of the state, legal precedent is clear that the disadvantage to the group is legally irrelevant.

BREYER: There are lots of people who get married who can't have children.
Breyer here latches onto the procreation argument and points out that procreation cannot be the full purpose of marriage, or the full interest of the state in regulating marriage, because the state allows people to get married all the time who can't have children. Kagan goes on to point out that the state allows 60-year-olds to get married all the time, even though it's almost certain no children will result.

It's a fair point and one that I think Cooper absolutely bungles in almost cringe-inducing ways at times. If this is indeed, the core of the defendants' argument, it's a rather weak one, as the interplay between Cooper and the justices demonstrates. That doesn't mean it isn't strong enough to pass given levels of legal scrutiny, but it does play into how the Court will look at the state interest in regulating marriage and how close the relationship is between that interest and the way in which Proposition 8 regulates it.

If there is one takeaway from this article, this is it. The legal debate over same-sex marriage is precisely this: What is the government's interest, if any, in regulating marriage? And how closely is restricting it to opposite-sex couples alone related to that interest? And is it close enough to meet some legal standard? As the petitioners see it: the state interest in regulating marriage regards procreation and child-rearing, as opposed to how they would characterize what the respondents view the state interest in regulating marriage, 'the emotional needs and desires of adult couples.' Not surprisingly, this strikes at the heart of both the legal and cultural question.

Unfortunately for the petitioners, it is on this question that his initial argument ends. On to the oral argument of the respondents, the opponents of Proposition 8!

ROBERTS: Perhaps you could address your jurisdictional argument?
Like the petitioners, the attorney for the respondents' opening statement is cut off before it gets rolling, as the justices ask him to address the question of standing. Though, as I said above, it is possible that this is the question that the case gets ultimately decided upon, it is also not the one that most readers will be interested in — understandably so. So I am going to forego further discussion and jump to the merits.

ROBERTS: When the institution of marriage developed historically, people didn't get around and say, 'Let's have this institution, but let's keep out homosexuals.' The institution developed to serve purposes that, by their nature, didn't include homosexual couples.
Roberts makes an interesting point in response to Olson's argument of exclusion, and it's not a point that I've heard made before. Marriage, as it was originally instituted, was created with specific purposes in mind, purposes for which it would make no sense to include same-sex couples. He is correct on this, but it also raises the question of whether, as the benefits and purposes of marriage have evolved (have they?), how much does that story of origin matter anymore?

Now to this, Olson correctly makes the assertion that in the case of California, the state did specifically and intentionally exclude same-sex couples from the institution of marriage. Thanks to the California Supreme Court, same-sex couples were permitted to marry, until Proposition 8 was passed, which acted to exclude them. But does that decision change the nature of every legal action which succeeds it?

SCALIA: When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Some time after Baker, where we said it didn't even raise a substantial Federal question?
Here Scalia asks a question that only Scalia could ask (Thomas could too, if he asked questions). This is the one place in oral argument where philosophies of interpretation jump up front and center. If the respondents' argument states that the Equal Protection Clause makes it unconstitutional to prohibit someone from marrying someone of the same sex, does that mean that it has been unconstitutional since the Clause went into effect back in 1868?

As the discussion between Olson and Scalia plays out, Olson eventually admits that it hasn't always been unconstitutional, but that it became so when 'we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control,' and, specific to California, when the California Supreme Court decided that sexual orientation was not a legitimate basis on which to discriminate when it comes to marriage.

This conflict between Olson and Scalia does represent a substantial difference of opinion on how to interpret the Constitution. If Scalia is going to uphold the unconstitutionality of Proposition 8, he is going to have to be shown that such a prohibition has always been unconstitutional, but that this is the first time that the Court is recognizing that fact. That's a nigh impossible assertion to swallow.

On the other hand, Olson's argument is that the Equal Protection Clause is one that evolves and the what it protects and what it doesn't changes over time, along with the culture. Because we now view homosexuality as an immutable characteristic, the respondents argue, it should trigger strict scrutiny under the Equal Protection Clause, even if that wouldn't have been the case 50 years ago.

But the question I think that should have been raised here is to what degree the case is about homosexuality, and to what degree it is about anyone — heterosexual or homosexual — from entering into marriage with someone of the same sex. Though I know the arguments on both sides, I'm surprised it wasn't even mooted here.

ALITO: California provides all the substantive benefits of marriage to same-sex domestic partnerships. Are you seriously arguing that if the case before us now were from a State that doesn't provide any of those benefits to same-sex couples, this case would come out differently?
Now is the opportunity for the attorney for the respondents to bungle his arguments. For when he answers the question with a 'no', he contradicts what he said immediately before Alito's question. But even in contradicting himself, he makes an interesting point, though not one whose significance is immediately clear.

Olson's point is this: California law has already decided that all of the defendants' arguments for prohibiting same-sex marriage — child-rearing, adoption, cohabitation — are insufficient. They are insufficient because California law already grants such benefits to same-sex couples! How can California claim that its rational basis for prohibiting same-sex marriage is to prevent children from being raised by same-sex couples if it already allows children to be adopted and raised by same-sex couples? Certainly a rather damning argument.

Nevertheless, Alito immediately recognizes that the respondents are trying to have their cake and eat it too. Either prohibitions against same-sex marriage are unconstitutional only in California because of the political decisions made in California, or such prohibitions are unconstitutional nationwide. But you cannot base an argument that same-sex marriage should be unconstitutional nationwide upon the political facts of California; other states have made contradictory political decisions, and thus the politico-legal context is different.

ROBERTS: So it's just about the label in this case. Same-sex couples have every other right, it's just about the label. . . . If you tell a child that somebody has to be their friend, I suppose you can force the child to say, 'This is my friend,' but it changes the definition of what it means to be a friend.
Roberts again makes what is, to me, a novel argument. He is, of course, quite right that in California all that is at stake is the label. Same-sex couples in civil union in California have the right to adopt, have hospital visitation rights, have certain financial rights, &c. What they don't have is the legal label of 'marriage'. And so Roberts uses what I think is a genius analogy to point out that you can use whatever label you want for anything, but in doing so, one might change the label means. On that point...

ROBERTS: [Why have we] recognized marriage as a fundamental right? You've said it's because of the emotional commitment. Maybe it is the procreative aspect that makes it a fundamental right.
While this doesn't address the label of 'marriage', it once again strikes at the heart of the issue. Culturally and legally: what is marriage, and why is it a fundamental right? I don't know our culture agrees on the answer anymore, which is perhaps exactly why there is such vehement disagreement on this issue. Other issues related to marriage are easier to overlook, but this one has become ever more front and ever more center.

I have been honestly and pleasantly quite surprised at how keenly the justices recognize the underlying issues and how they must be played out on the legal stage.

SOTOMAYOR: The bottom line that you're being asked — and it is one that I'm interested in the answer: If you say that marriage is a fundamental right, what State restrictions could ever exist?
This is the 'slippery slope' argument in legal form. 'If we say that same-sex marriage is constitutional protected, what about polygamy or incest?' Olson here gives the standard response in legal form: polygamy raises issues of exploitation and abuse, complicates inheritance laws, &c. While I think these are good legal counterarguments, I wish Sotomayor had pressed him a bit further in order to get at issues of legal scrutiny. Not all cases of polygamy are exploitative, so would not such a law be over-inclusive, thus failing strict scrutiny? This is perhaps the one exchange in the case that I wish had been pursued further.

When Olson further responds that, 'If a State prohibits polygamy, it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status,' I find it to be an unfortunate equivocation on Olson's part. Sotomayor isn't asking about polygamy per se, but polygamous marriage. And in that case, polygamous marriage and same-sex marriage are either both behaviors or both exercises of rights.

KENNEDY: The problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters. . . . But you're doing so in a case where the opinion is very narrow.
For the second time now, Kennedy has shown rather pronounced trepidation about taking up the case (and this won't be the last time), especially in favor of the plaintiffs — declaring Proposition 8 as unconstitutional. He seems to be very concerned and/or preoccupied with the fact that introducing same-sex marriage as a fundamental constitutional right might have profound adverse effects — that we simply don't know what the sociological effects will be. And even though Olson points out that the district court did extensive sociological research, Kennedy betrays that he does not entirely trust those findings — at least not enough to venture into the uncharted waters. A rather philosophically conservative display on Kennedy's part.

And though Olson tries to counter Kennedy's argument by saying that allowing interracial marriages in 1967 in Loving was also uncharted waters, but waters into which the Court correctly ventured, Kennedy is correct to point out that interracial marriage had been happening elsewhere in the world for hundreds of years, whereas same-sex marriage is only a 13-year-old idea worldwide, as Alito will point out later.

With that ends the resopndents' oral argument. Finally is Solicitor General Verrilli, amicus curiae, on behalf of the respondents.

ROBERTS: You don't think you're going to get away with not starting with the jurisdictional question, do you?
Chief Justice Roberts gets the whole Court laughing by once again diverting the attorney into the standing question. Well played, sir.

BREYER: So a State that [provides no benefits to same-sex couples] hurts them much more, and yet your brief seems to say it's more likely to be justified under the Constitution.
Earlier General Verrilli makes the same point that Olson had made earlier: that the political facts of California act to undermine the rational basis by which the petitioners are arguing that Proposition 8 is a permissible pursuit of government interests. Breyer here properly challenges the legal principal that such an argument entails.

Breyer's basic argument is this: the reason you want us to rule against Proposition 8 is because the political facts in California undermine the rational basis by which the petitioners argue for Proposition 8. But if that's our reason, it means that that rational basis would suffice in a state which doesn't afford same-sex couples legal benefits. And so you would end up with a rather peculiar outcome: the Constitution would provide more protection for same-sex marriage in states which afford same-sex couples certain legal benefits than it would in states which afford same-sex couples no legal benefits. A peculiar outcome, but peculiarity wouldn't be unprecedented in law.

ALITO: The one thing that the parties in this case seem to agree on is that marriage is very important. It's thought to be a fundamental building block of society and its preservation essential for the preservation of society. . . . On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?
Alito finally raises the question that Kennedy had been driving at earlier. Why should the Supreme Court be the one to venture into uncharted waters? Why should the court make a political question into a legal one? The Court all the time leaves decision up to the political process, deferring to the judgment of the legislative and executive branch on all sorts of issues. Why when the stakes are so enormously high, and the Court is not equipped to do the necessary fact-finding — much less able 'to see the future', as Alito puts it — should it now step in and interrupt the political process?

In response to this, Gen. Varrelli notes that the position of the United States Government (that is to say, the Obama administration) is that the present case should be constrained to the facts of California alone and that other states may have different outcomes. But at the same time, he notes that it should be left up to 'adjudication' in other states, not necessarily the political process.

ROBERTS: You say, 'It's got to happen right now in California,' but you don't even have a position about whether it's required in the rest of the country.
A rather cutting remark by Chief Justice Roberts. It's a true one, but it rather cuts down the United States' position. Varrelli responds that it's contingent upon the fact that California allows adoption, but Roberts comes back immediately with, 'So it's got to happen right away in those States where same-sex couples have every legal right that married couples do.' And Roberts is right. The United States's argument isn't as principled as either the petitioners' argument or the respondents' argument. And in so arguing, Varrelli cuts his own legs from underneath him by making the argument not a legal one about constitutional rights, but a political one about preventing harm with good laws.

ROBERTS: It seems to me that your position that you are supporting is somewhat internally inconsistent. We see the argument made that there is no problem with extending marriage to same-sex couples because children raised by same-sex couples are doing just fine and there is no evidence that they are being harmed. And the other argument is Proposition 8 harms children by not allowing same-sex couples to marriage. Which is it?
As much as I was cringing at Cooper's mangling of the procreation line of questioning, I'm cringing much more at Varrelli's responses here. His argument very clearly is internally inconsistent, and Roberts has now shown that on multiple occasions. And it won't take long for Breyer to pile on as well. One can very sensibly hold a middle-ground position politically on this matter, but Varrelli is quickly becoming a case study for how untenable such a position is legally. When both Roberts and Breyer are pointing out your internal inconsistencies, your argument has a real problem. And just as Cooper ended his argument in disarray, so also Varrelli.

With that I'll close out the commentary. The attorney for the petitioners has a final rebuttal, but the meat of the argument is largely once again the question of the political process. Is this something that should be left to the political process in each state? Is this something that should be found unconstitutional in every state? Is this something which is unconstitutional only in California? And if the latter, what is the principal by which a court would decide whether it is constitutional or not in other states?

But regardless of the answer to those questions, the underlying legal principle remains the same. To restate as I put it above: What is the government's interest, if any, in regulating marriage? And how closely is restricting it to opposite-sex couples alone related to that interest? And is it close enough to meet some legal standard? Until one answers that first question, one has no hope in attempting to answer the second or third. And I think that is precisely the problem: we don't know how to answer that first question.

Hopefully you learned something from reading through this. A little bit about the facts of the case, a little bit about how the Supreme Court works, a little bit about constitutional law, and a little bit about how to think and argue about these issues in thoughtful ways which avoid mischaracterization, personal attacks, and ridicule. And mostly, thanks for indulging my commentary along the way!