Kennedy’s Schuette Decision is Really About Same-Sex Marriage

Yesterday, the Supreme Court upheld Michigan’s ban on the use of affirmative action in college admissions. Justice Kennedy wrote the opinion for a very divided Court. Kennedy’s opinion explained that the political process doctrine cases do not apply because those cases all involved specific racial injuries that didn’t exist in this case. For now at least, I’ll leave the merits of that analysis to be determined by others, but suffice it to say that Kennedy’s opinion could (and probably should) have ended there. But it went on. In fact, it went on for five more pages. And in those five pages, Kennedy talked about same-sex marriage—not about racial preferences in college admissions.

Of course, Kennedy didn’t overtly talk about same-sex marriage, but it sure sounded like that’s what he was talking about. He started this section of his opinion by pointing out that if SCOTUS were to strike down the Michigan law banning racial preferences, it would amount to the Court finding that the past 15 years of state public debate on this issue have been meaningless because SCOTUS was just going to take the issue out of the hands of voters anyway. (p. 14) This same argument could be made in a decision holding that there is no constitutional right to SSM.

Then, Kennedy really ramped up the rhetoric. He said the right of the individual not to be injured by the unlawful exercise of governmental power is an essential freedom secured by the Constitution, and that “liberty’s full extent and meaning may remain yet to be discovered and affirmed.” (p. 15) That is unequivocally pro-same-sex marriage language. But the paragraph wasn’t over. Here is the next sentence:

“Yet freedom does not stop with individual rights.”

Kennedy then waxed poetic about a type of freedom also guaranteed by the Constitution that acts as a counterweight to individual freedom: the freedom of citizens to act democratically to shape their futures. In other words, Kennedy did note that the Constitution sometimes protects individuals from majorities that want to trample their rights, but he focused on the fact that political majorities also have rights protected by the Constitution, and he ultimately concluded that majority’s rights often overcome the individual’s. To put it in Kennedy’s words, this right of the majority is “the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.” (p. 16) This line of reasoning would be disastrous to LGBT advocates in an opinion about SSM, as the necessary conclusion would be that each state has the right to decide for itself whether same-sex marriages should be valid.

And Kennedy went on and on about the importance of respecting the democratic process: “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” (p. 17) Does anybody really think he was still talking about racial preferences at this point? “Decent and rational grounds”? That doesn’t sound like strict scrutiny, which applies to racial classifications. He’s talking about LGBT issues, which voters can still decide based on “decent and rational grounds.”

Kennedy spoke so highly of the public’s ability to solve difficult political problems that it’s hard to believe that he’ll ever rule in favor of an individual right again: “An informed public can, and must, rise above [racial division and discord]. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.” (p. 17)

Remember Justice Scalia’s famous dissent in Windsor, the case in which Justice Kennedy’s majority opinion struck down part of DOMA? In that dissent, Scalia made a big show of taking excerpts from Kennedy’s opinion, changing a few words around, and demonstrating that Kennedy’s language could be easily transformed into an opinion declaring a constitutional right to same-sex marriage. (see page 23 of the dissent) That was greatly entertaining, but I can use the same technique to make the opposite point using Kennedy’s Schuette decision.

Imagine that next year, SCOTUS reviews Michigan’s ban on same-sex marriage. Here is the final few paragraphs of Kennedy’s Schuette opinion with just a few words changed to read as if it were the final few paragraphs in a decision upholding Michigan’s ban on SSM:

Mulkey, Hunter, and Seattle [Windsor, Lawrence, and Romer] are not precedents that stand for the conclusion that Michigan’s voters must be disempowered from acting. Those cases were ones in which the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race [sexual orientation]. What is at stake here is not whether injury will be inflicted but whether government can be instructed not to follow a course that entails, first, the definition of racial [marital] categories and, second, the grant of favored status to persons in some racial [marital] categories and not others. The electorate’s instruction to governmental entities not to embark upon the course of race-defined and race-based preferences [expanding the legal definition of marriage] was adopted, we must assume, because the voters deemed a preference system [an altered definition] to be unwise, on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this Nation seeks to put behind it [a dangerous change to family structure]. Whether those adverse results would follow is, and should be, the subject of debate. Voters might likewise consider, after debate and reflection, that programs [laws] designed to increase diversity [expand the definition of marriage]—consistent with the Constitution—are a necessary part of progress to transcend the stigma of past racism [discrimination].

This case is not about how the debate about racial preferences [sexual orientation] should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters. See Sailors v. Board of Ed. of County of Kent, 387 U. S. 105, 109 (1967) (“Save and unless the state, county, or municipal government runs afoul of a federally protected right, it has vast leeway in the management of its internal affairs”).  Deliberative debate on sensitive issues such as racial preferences [same-sex marriage] all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.

It is so ordered.

Why would Justice Kennedy include in his Schuette opinion these five unnecessary pages that seem to be more applicable to same-sex marriage? Because he’s furious! Everybody is misinterpreting his Windsor opinion and there’s almost nothing he can do about it. What’s worse is that Justice Scalia showed him up. Scalia anticipated the trend of district courts finding a constitutional right to same-sex marriage based on Kennedy’s Windsor opinion. As it turns out, Scalia was dead on, and Kennedy is furious about it. Kennedy wants to scream, “NO, YOU IDIOTS! I WAS NOT ANNOUNCING A RIGHT TO SAME-SEX MARRIAGE! IN FACT, I BELIEVE THE OPPOSITE! STOP MISINTERPRETTING WINDSOR AND MAKING SCALIA LOOK GOOD AT MY EXPENSE!!!” But Kennedy can’t do that because announcing how he would decide a future case would violate about a dozen unwritten rules of being a Supreme Court Justice.

So what can Kennedy do? He can insert five unnecessary pages into a high-profile (but unrelated) decision waxing poetic about the reasons why he believes that there is not a constitutional right to same-sex marriage—but without outright acknowledging that he’s really talking about same-sex marriage.

As I’ve said before, Justice Kennedy does not believe that there is a constitutional right to same-sex marriage. You’ll be hard-pressed to find a single expert who agrees with me. But it’s true.

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Is Same-Sex Marriage Unbeatable in Court?

It’s over,” declare David S. Cohen and Dahlia Lithwick at Slate. Cohen and Lithwick have boldly claimed that same-sex marriage can no longer lose in courts. The Slate article points to eighteen cases involving same-sex issues that have been decided since SCOTUS’s Windsor decision last June, which struck down part of DOMA. Same-sex marriage supporters have prevailed in all eighteen of these cases (twelve of which involved marriage rights and the other six involved other rights related to same-sex couples). And you can add one more to the list. Since the Slate article was posted, a federal judge struck down Texas’s ban on same-sex marriage. The Slate articles goes on, pointing to the trend of government officials refusing to defend same-sex marriage bans in court (as happened in New Jersey and Nevada).

The trend of legal success by same-sex rights advocates is certainly remarkable. But it is far too early to declare the fight over. For starters, few appellate courts have issued post-Windsor same-sex rights decisions yet. A same-sex rights win in district court is much less significant than any win at the appellate level. Plaintiffs (usually same-sex rights proponents) usually have an ability to seek out sympathetic judges at the district court level, but that ability largely disappears at the appellate level.

Moreover, very little that happens at the district and even the circuit court levels will affect the ultimate decision by the Supreme Court, which (almost certainly) lies in the hands of Justice Kennedy. Although Justice Scalia’s characterization of Justice Kennedy’s Windsor opinion suggests that it is inevitable that Kennedy will go on to hold that there is a national constitutional right to same-sex marriage, Scalia’s dissent also suggests that it is inevitable that the world is coming to an end as a result of Kennedy’s Windsor opinion.

Cohen and Lithwick’s Slate article is just one example of a strong trend among journalists and judges alike in using the Windsor opinion to conclude that state same-sex marriage bans are unconstitutional. But this reaction is seriously premature. In reality, there is little in the text of Justice Kennedy’s Windsor opinion that supports a conclusion that he will inevitably vote in support of a constitutional right to same-sex marriage.

Kennedy used a two-prong approach to arrive at his conclusion in Windsor. The Slate article describes this approach: “The first part [of Kennedy’s opinion] is all about federalism, not equality. Kennedy painstakingly explained that the federal Defense of Marriage Act offended basic principles of states’ rights because, historically, the states have always defined marriage and the federal government just goes along for the ride. … Justice Kennedy could have stopped there, but he didn’t.”

Could Justice Kennedy have stopped there? That’s not so clear. The opinion Justice Kennedy wrote controlled the outcome of the case because a majority of the Court was willing to sign it. If Kennedy had written an opinion striking down part of DOMA based on states’ rights alone, who would have signed it? The Justices who joined Kennedy to create a majority in Windsor were the four “liberal” Justices, who are not generally considered to be huge advocates of states’ rights. Those Justices probably would have wanted to write a separate opinion focusing on DOMA’s deprivation of dignity to same-sex couples. Meanwhile, the four “conservative” Justices didn’t want to strike down DOMA at all. Although those Justices may generally believe in states’ rights, they believed those rights were insufficient to strike down DOMA in this case.

In other words, instead of commanding a majority of five Justices, a Kennedy opinion based only on principles of federalism probably wouldn’t have garnered the support of a single other Justice. That opinion would still have controlled the result in Windsor, as five Justices would have nonetheless voted to strike down part of DOMA. But Kennedy’s reasoning based on states’ rights would have been weakened. Continue reading

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The Supreme Court’s Michigan Affirmative Action Decision: Part III of our Coffee House Conversation

Here are Part I and Part II of this conversation among the lawyers arguing the Schuette case in front of SCOTUS. Let’s pick it up where we left off:

JOHN:   Well, that sure was a brief1 appearance from Mike.

LARRY:  How did he find out so quickly about the new same-sex marriage opinion anyway?

JOHN:   I don’t know. Probably Twitter. Everybody is Twitter crazy these days.

LARRY:  Hey, Twitter is a valuable thing. Are you familiar with Being Black at University of Michigan?

JOHN:   Nope.

LARRY:  It’s a Twitter campaign that was started by some black students at UofM to raise awareness and serve as an outlet for problems they face at UofM. The #BBUM movement caught fire and has been picked up by other minority student populations at UofM as well. And it is having an impact. The university is working with student leaders to accommodate some of the students’ demands.

JOHN:   Hmm. Good for them. Do you think there’s a relationship between the 2006 constitutional amendment and the #BBUM movement?

LARRY: I think there’s a relationship between the 2006 amendment and the need for the #BBUM movement. That’s probably a topic for another day, though.

JOHN:   Agreed. Let’s get back to the primary issue: assuming the Political Process Doctrine is a valid doctrine, whether Michigan’s 2006 constitutional amendment banning affirmative action violates that doctrine.

LARRY:  Yeah, we need to talk about the Seattle case.

JOHN:   I hate the Seattle case.

LARRY:  I know you do. But Washington v. Seattle Sch. Dist. No. 1, which was decided back in 1982, is the one case that the Supreme Court is either going to rely on, distinguish or overrule in its Schuette decision. Prior to 1982, Seattle’s K-12 schools were de facto segregated. To solve that problem, citizen groups convinced the school board to institute a bussing plan, requiring that students be bussed around the city to ensure each school had a diverse student body. Opponents of the plan were able to get a statewide initiative passed, prohibiting school boards from using bussing to accomplish racial integration. The Supreme Court held that the initiative was unconstitutional because it placed extra burdens on citizens seeking to promote race-conscious approaches. Now, the Supreme Court has to be consistent, and I really don’t see how you can distinguish the Seattle case from this one.

JOHN:   It’s actually quite easy. The Seattle case did not involve a law or policy that prohibited preferential treatment. In fact, the Supreme Court has never held that a state law or policy that prohibits preferential treatment violates the Political Process Doctrine. And you’re forgetting that the text of the Seattle case itself actually brought up the possibility of the Seattle opinion later being used as an argument against affirmative action bans in university admissions. It specifically said that the Seattle reasoning would not apply in that event.

LARRY:  Now that’s just not true. Continue reading

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The Supreme Court’s Michigan Affirmative Action Decision: Part II of our Coffee House Conversation

Picking up where we left off in Part I

LARRY:  What took you so long to get coffee?

JOHN:   Some woman was holding up the line, trying to buy coffee for what appeared to be a group of four 14-year-olds. Do kids really drink coffee when they’re that young these days?

LARRY:  Who the heck knows what kids are doing these days? Apparently, they sit around meme-ing quite a bit.

JOHN:   Yeah. I really don’t get it. Anyway, let’s get back to Schuette. I can’t believe you keep making the argument that Michigan’s affirmative action ban discriminates against racial minorities.

LARRY:  Well, I think that’s a pretty significant problem.

JOHN:   The problem I have with it is that your argument is hypocritical. In the 2003 Grutter case, your allies argued that affirmative action is okay because it benefits all students at universities, not just the minorities. The winning argument suggested that by making sure universities have sufficiently diverse incoming classes, all students benefit from the variety of perspectives and experiences provided by their peers. Back in 2003, the Supreme Court bought that argument and ruled that although racial preferences are generally problematic, when it comes to university admissions, racial preferences are okay because they improve the quality of education for all students on campus.

LARRY:  Listen, there’s no point in rearguing the Grutter case.

JOHN:   Oh, I’m not trying to. That fight is over. I disagree with the result, but your side won the battle. My point is that your argument in this case conflicts with the argument that was made in favor of affirmative action in that case. Back then, your side won by arguing that affirmative action benefits everyone. Now, you’re arguing that Michigan’s affirmative action ban is unconstitutional because it only harms racial minorities. You can’t have it both ways. If it was true in 2003 that affirmative action benefits all students on campus, it cannot possibly be true that banning affirmative action only harms minorities now. Continue reading

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The Supreme Court’s Michigan Affirmative Action Decision Boiled Down to a Coffee House Conversation

I hope everyone had a great MLK Day this year. I like to imagine that in lieu of going to work on MLK Day, people all over the country spend an hour or so at a coffee shop, bar or even at the kitchen table discussing (at least thinking about) racial diversity. Towards that end, I have an annual MLK Day tradition of writing about a racial issue. This year, since SCOTUS is considering the constitutionality of Michigan’s ban on affirmative action, I planned to post an imagined coffee house conversation between the lawyers arguing Schuette v. Coalition to Defend Affirmative Action. But when MLK Day arrived, I couldn’t resist weighing in on the “Richard Sherman is a thug” controversy.

But the wait is over, I now give you the coffee house conversation between the lawyers involved in Schuette. The arguments below are mainly pulled from the briefs the lawyers filed1 (but are paraphrased and edited significantly to not be boring fit into a coffee house conversation).

LARRY2: John! How are ya? Good job on your argument in Schuette.

JOHN:   Hey Larry. Thanks. You too, what was that, four months ago now?

LARRY:  October 15th.3 It doesn’t seem like it was that long ago.

JOHN:   I know. I can’t tell you how often I get questions from people wanting to know whether SCOTUS is going to ban affirmative action.

LARRY:  I hear ya. It’s kind of a challenge to explain to people that Schuette is not about whether affirmative action is constitutional.

JOHN:   Right. I keep explaining that this case is really about six judges in Ohio4 nullifying the people of Michigan’s desire to ban discrimination.

LARRY:  Whoa. I wouldn’t put it that way. This case is really about whether Michiganders can entrench racial discrimination in their state constitution.

JOHN:   That’s ridiculous. Affirmative action is a form of discrimination, since white people are usually discriminated against. In 2006, the people of the state of Michigan amended their constitution to prohibit discrimination—a/k/a “granting preferential treatment”—in public education, government contracting and public employment based on race, sex, ethnicity or national origin. Some groups of Michiganders who support the type of discrimination that favors underrepresented racial groups in university admissions then brought this lawsuit, arguing that the 2006 constitutional amendment violates the federal Equal Protection Clause. But it simply does not make sense to say that a law that requires equal treatment violates the Equal Protection Clause. Continue reading

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In Richard Sherman Controversy, Race Matters

Today, we honor the birth of Dr. King. Since I began blogging, I have written an annual post designed (in a small but hopefully significant way) to further discussions about race. I had planned to write a piece about the Michigan affirmative action case, which will be decided by SCOTUS later this year.

But last night, Erin Andrews interviewed Richard Sherman at just the right (wrong?) time, and the country’s reaction has been irresistible to write about.

Richard Sherman (photo from

Sherman—a defensive back for the Seattle Seahawks—is perhaps the best player in the league at his position. In the final seconds of the NFC Championship Game, Sherman made an outstanding play, preventing the San Francisco 49ers from taking the lead, instead sealing a victory for the Seahawks. Moments after the play, Erin Andrews, a sideline reporter, caught up with Sherman.

This morning, I walked into an office and into the middle of a conversation between people who were upset about this interview. Phrases used to describe Sherman included, “profane,” “uneducated,” “crazy,” “classless,” and “dangerous.” Based on some of the reactions on social media,[1] I assume that similar conversations occurred around the country.

Read the transcript of the interview:

Fox’s Erin Andrews: “Take me through it (the interception) …”

Sherman (screaming): “Well, I’m the best corner in the game. When you try me with a sorry receiver like (Michael) Crabtree, that’s the result you are going to get. Don’t you ever talk about me.”

Andrews: “Who was talking about you?”

Sherman: “Crabtree. Don’t open your mouth about the best or I’m going to shut it for you real quick. LOB!” (That’s the abbreviation for “Legion of Boom,” the nickname of the Seahawks’ defense.)[2]

Did Sherman curse? Nope. Did he personally attack Crabtree? Sort of, but he was clearly referring to Crabtree’s playing ability. Sherman didn’t attack Crabtree’s personality, his mother, or his manhood. Did Sherman demonstrate a lack of education? No. Sanity? Not really. Sure, he was yelling. But let’s be honest, it was a bit loud in that stadium.

So, why exactly is Sherman such a “profane,” “uneducated,” “crazy,” “dangerous” villain? 49ers coach Jim Harbaugh was repeatedly shown screaming viciously at anyone and everyone in sight. Why isn’t Harbaugh the villain everyone is talking about? Continue reading

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A Dose of SCOTUS Holiday Cheer: Oral Argument Annotated—Part III

Tired of playing with all of your new toys already?! Well, we have just the thing–our third and final annotation of SCOTUS’s oral argument transcript on whether a town council can hold a prayer at the beginning of its meetings without violating the Establishment Clause of the First Amendment. When we left off, the conservative Justices were challenging one of the attorneys, Mr. Laycock, to identify which religious groups would be included/excluded if SCOTUS adopted a rule that legislative prayers had to be “generally acceptable to most believers.” Let’s get back to the transcript, kids (in case you were naughty and missed them, here is Part I and Part II).

JUSTICE SCALIA: You want to pick the groups we’re going to exclude?

MR. LAYCOCK: I think you picked them, Your Honor.

JUSTICE SCALIA: The Baha’i, who else? These groups are too small to –

CHIEF JUSTICE ROBERTS: We’ve already excluded the atheists, right?

JUSTICE SCALIA: Yeah, the atheists are out already.

MR. LAYCOCK: We’ve excluded the atheists. I don’t think the Baha’i are excluded, but I’m not certain.

JUSTICE SCALIA: Okay. So who else? I mean, you say just the vast majority is all that we have to cater to.

MR. LAYCOCK: Well, I think the atheists are inevitably excluded. We can’t help -­

JUSTICE SCALIA: Okay. Good. Got that. Number 1, atheists. Who else?

Scalia sure seems excited to exclude minority religious groups from recognition in religious prayer. I like to poke fun at Justice Scalia, but in fairness, what he’s doing here is important. He’s trying to get material for the Court’s opinion. He will likely vote against Mr. Laycock and hold that the town of Greece’s practice of prayer in this case is constitutional. He wants to include language in the opinion that goes something like this: “During oral argument, even the attorney who asked us to require more inclusive prayers struggled to identify which groups were deserving of protection. Why should one small sect be included over another small sect? Counsel was unable to identify a good reason during oral argument, and that makes sense. It is decidedly not this Court’s role to draw such narrow distinctions between religious groups.”

MR. LAYCOCK: True polytheists who don’t understand their gods as manifestations of the one god are probably excluded. I’m not sure many others are. And you have all these lawyerly hypotheticals, but the fact is we’ve done this kind of prayer in this country for 200 years. There’s a long tradition of civic prayer and the clergy know how to do it. When in Greece, no one has told them that’s what we want you to do. And I would say the one time the country in a major way got involved in government-sponsored, sectarian prayers that people disagreed about was when we imposed Protestant religious exercises on Catholic children in the 19th century. And that produced mob violence, church burnings, and people dead in the streets.


CHIEF JUSTICE ROBERTS: We’ve already separated out, I thought, in our jurisprudence, children and adults.

Time to place bets. How many times will Kagan be interrupted before she is able to ask her question? I’ll set the over-under at five.

MR. LAYCOCK: Well, Lee v. Weisman twice reserves the question of whether adults might be subject to similar pressures.

CHIEF JUSTICE ROBERTS: Well, you do accept the fact that children may be subject to subtle coercion in a way that adults are not, right?

MR. LAYCOCK: In some ways that adults are not. But there’s no doubt that before you stand up to ask for relief from a governing body, you don’t want to offend that body. Adults are subject to coercion here. And no competent attorney would tell his client, “it doesn’t matter whether you visibly dissent from the prayer or not.” You try to have your client make a good impression.

JUSTICE KENNEDY: Well, I just want to make sure what your position is that town councils like Greece can have prayers if they are non-provocative, modest, decent, quiet, non-proselytizing. That’s your position?

MR. LAYCOCK: I wouldn’t use all those adjectives, but yes. And we don’t think that’s difficult to do.


The second Kagan interruption:

JUSTICE BREYER: Congress has a set of guidelines which you’ve read and are here in the papers and so forth. Are those satisfactory to you?

MR. LAYCOCK: We’d like to be a little more explicit, but those are vastly better than –

JUSTICE BREYER: If those are satisfactory to you, then I wonder, are they satisfactory to everyone. And you will find all kinds of different beliefs and thoughts in this country, and there will be people who say, but I cannot give such a prayer if I am a priest or a minister or whatever in that particular religion. I must refer to God as I know that God by name. And what do we do with them? That’s what — I mean, we can recommend it, but can we say that the Constitution of the United States requires it?  Continue reading

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A Dose of SCOTUS Holiday Cheer: Oral Argument Annotated—Part II

In Dose 1 of our SCOTUS holiday cheer, we learned that “Greece” is not only a bankrupt country that is the bane of Germany’s existence, but also a small town in New York struggling with a big time problem. The town of Greece begins council meetings with Christian prayers, which bothers at least a couple of the non-Christian citizens. The non-Christians’ attorney, Mr. Laycock, is trying to convince SCOTUS that the town should have to tell the members of the clergy who conduct the prayers to limit them to content that is generally acceptable to most people. Let’s pick up the transcript where we left off.

JUSTICE SCALIA: Your point is that it coerces, it’s bad because it coerces?

It’s a trap!

MR. LAYCOCK: It coerces the people who are about to stand up and ask for things from the board and -­

Never let Scalia put words into your mouth if you know he disagrees with you. This is trouble.

JUSTICE SCALIA: If coercion is the test of the Establishment Clause, why do we need a Free Exercise Clause? If there’s coercion, I assume it would violate the Free Exercise Clause, wouldn’t it?

MR. LAYCOCK: Well, I think that’s right. And that’s why -­


JUSTICE SCALIA: So it seems to me very unlikely that the test for the Establishment Clause is identical to the test for the Free Exercise Clause.

MR. LAYCOCK: Well, it seems to me unlikely as well.


MR. LAYCOCK: Coercion is one test for the Establishment Clause, but there is also broad agreement on the Court, and there has been, that sectarian endorsements are prohibited by the Establishment Clause.

Sooooo, we’re not talking about coercion then?

CHIEF JUSTICE ROBERTS: Since you are adopting the coercion test, what exactly is coercive in this environment? Having to sit and listen to the prayer?

Hang on. Did we resolve Scalia’s question? It sounds right that coercion shouldn’t be the test under both the Establishment Clause and the Free Exercise Clause. Otherwise, one would be superfluous. So, if this is an Establishment Clause case and coercion is more of a Free Exercise issue, why are we still talking about coercion?

MR. LAYCOCK: There are many coercive aspects here of varying degrees of importance. Citizens are asked to participate, to join in the prayer. They’re often asked to -­

CHIEF JUSTICE ROBERTS: They are asked to participate, but not in any tangible way. They say: Well, I’m not going to participate, and everybody’s just sitting there.

MR. LAYCOCK: They are often asked to physically participate, to stand or to bow their heads. The testimony is most of the citizens bow their heads whether they are asked to or not. So people who are not participating are immediately visible. The pastors typically say: “Please join me in prayer.” They offer the prayer on behalf of everyone there. They talk about “our Christian faith.”

JUSTICE SCALIA: This is coercion? He says, “May we pray,” and somebody doesn’t want to pray, so he stays seated.

Why are the conservative Justices so surprised that these legislative prayers could be perceived as coercive? It seems to me that Mr. Laycock has the better argument in this portion of the transcript. This argument is a shining example of why it is not ideal for relatively homogeneous groups of people to make important decisions.  Justice Scalia, a white, Christian man may find himself in a position where he feels like a minority being subjected to the views of the majority on occasion, but it probably isn’t that frequent. Those types of experiences, or at least familiarity with a paradigm of being marginalized, would provide a Justice invaluable perspective on an issue like this one.

MR. LAYCOCK: What’s coercive about it is it is impossible not to participate without attracting attention to yourself, and moments later you stand up to ask for a group home for your Down syndrome child or for continued use of the public access channel or whatever your petition is, having just, so far as you can tell, irritated the people that you were trying to persuade.

Speaking of irritating the people you are trying to persuade, who wants to guess the religious make-up of the Supreme Court? There are nine Justices. What do you think the religious distribution is? I’ll give you a jump to think about it.

Continue reading

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A Dose of SCOTUS Holiday Cheer: Oral Argument Annotated

It’s that time of year to sit down to make fun of the guy at the office holiday party who gets too drunk and starts hitting on coworkers prop up the economy by spending excessive money on gifts stunt our children’s logical development by telling them a fat man squeezes down every chimney in the world in one night to deliver presents contemplate the role of religion in our society! To that end, here is a religiously-themed SCOTUS oral argument transcript figuratively gift wrapped just for you.

Can town councils start their meetings with Christian prayers? That is the question before the U.S. Supreme Court in Town of Greece v. Galloway. The small town of Greece, NY begins town council meetings with a prayer, which is almost always Christian in nature. Two citizens of Greece, an atheist and a Jew, attended a meeting to request that changes be made to a local television channel. Offended by the prayer at the start of the meeting, these citizens sued the town arguing that the prayer violates the Establishment Clause of the Constitution, which codified the separation of church and state.

Below is the actual transcript (lightly edited for clarity) of the citizens’ attorney’s oral argument (with my thoughts intermixed in italics) at the Supreme Court last month. The full official transcript can be found here.

Mr. Laycock,[1]the citizens’ attorney, begins by trying to explain to the Justices that the town council meetings in Greece begin with a prayer as part of the meeting, so people who want to attend are essentially forced to listen to the prayer. Mr. Laycock believes that any prayer should be held well before the meeting itself, so people who don’t want to hear it can show up after the prayer without missing the meeting. Mr. Laycock would also like the prayer to “avoid points on which believers are known to disagree.” Now, how exactly someone is supposed to pray in a way that appeals to everyone is beyond me, but as we will see, Mr. Laycock sure seems to think it’s possible, so let’s hear him out.[2]

As always, enjoy. [3]

MR. LAYCOCK: Mr. Chief Justice, and may it please the Court. There is no separation in time between the public hearing and the invocation. People appear before this town board to ask for personal and specific things. Our clients put shows on the cable channel. They were concerned the cable channel was about to be abolished or made much less usable. People appear to ask for a group home — There are many personal petitions presented in the immediate wake of the prayer.

JUSTICE ALITO: But that’s during the public forum part.

MR. LAYCOCK: That’s in the public forum.

JUSTICE ALITO: Which is not the same thing as the hearing.

MR. LAYCOCK: It’s not the same thing as the hearing and that’s the point, Your Honor.

JUSTICE ALITO: There’s another part of the proceeding that is the hearing.


If you have no idea what Alito is trying to get at, good, neither do I. Hang in there.

JUSTICE ALITO: And that’s when somebody has a specific proposal. They want to — something specifically before the board and they want relief. They want a variance.

MR. LAYCOCK: The hearing is a particular kind of proposal.

JUSTICE ALITO: And that is separated in time.

MR. LAYCOCK: That is somewhat separated in time. The forum is not. And people make quite personal proposals there. They ask for board action. They often get board action.

So, to recap, we’re five Alito questions deep at this point, and we may or may not have established that the hearing and the forum are two different things. Let’s just say that Justice Alito is not in the running for this year’s Clarity of Questions award. Let’s see where he’s going with this…

JUSTICE ALITO: But that is a legislative body at that point. It’s clearly a legislative body, is it not? The only difference is it’s a town rather than Congress or a State legislature where you have more formalized procedures. This is more direct democracy. Or it’s a town meeting.

Ahhhh. Got it? SCOTUS has previously ruled[4] that legislative prayer is generally okay when Congress does it. So, Alito is suggesting that there is no difference between the prayers in this case and the prayers in Congress. It just took Alito six questions to get there…

MR. LAYCOCK: It is direct democracy. When a citizen appears and says, solve the traffic problem at my corner, solve this nuisance family that commits a lot of crimes in my block, that’s not asking for legislation or policymaking. That’s asking for administrative action. This board has legislative, administrative, and executive functions.

JUSTICE ALITO: Well, if that is your argument, then you are really saying you can never have prayer at a town meeting.

MR. LAYCOCK: That’s not what we’re saying. We’re saying -­

JUSTICE ALITO: How could you do it? Because that’s the kind of thing that always comes up at town meetings.

Wait a minute. I see what Alito is doing here. On rare occasions, a single Justice will ask at least ten questions in a row. We call it a DDQ[5], and it’s such a rare accomplishment that it can be a career defining moment for a Justice. We’re already at eight questions in a row for Alito. YOU CAN DO IT!

MR. LAYCOCK: We’re saying you cannot have sectarian prayer. The town should have a policy in the first place, which it doesn’t. Instruct the chaplains to keep your prayer nonsectarian, do not address points of -­

JUSTICE ALITO: All right. Give me an example. Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus. Give me an example of a prayer. Wiccans, Baha’i.


Ohhhhhhhhhh. Alito made it to nine before being cut off by the Chief Justice. That’s like taking a perfect game into the ninth inning only to lose it on a bunt single.

JUSTICE SCALIA: And atheists. Throw in atheists, too.


First of all, the Justices seem to think that there is something humorous about atheists throughout this transcript. I can’t figure out what it is. Second, Roberts clearly beat Scalia to the punch on bringing up atheists, so he should arguably get at least partial credit for that laughter line. Continue reading

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The Corporate Morality Hypocrisy

[Barney’s office at Goliath National Bank. As the scene opens, Barney is on the phone with a business associate.]

Barney:        The new shredder in my office is junk. It can only shred 100 sheets at a time. My old one could handle 250 (well, it could until I shoved my seven iron in it). Get a new 250-sheet one here by tomorrow … Why don’t we buy from that supplier anymore? … Listen, if we avoided suppliers that utilized forced child labor, we wouldn’t have any supplies at all … I don’t care if they have to work 16-hour days … They make a damn good shredder, so get one here by tomorrow.

[Marshall enters as Barney hangs up the phone]

Marshall:    Did you know that we’re suing the federal government?

Barney:        Yeah, over Obamacare. Who isn’t?

Marshall:    Good point. There are about 75 similar lawsuits around the country. But doesn’t it seem a bit strange that we would be one of them?

Barney:        We sue people all the time. If we’re going to have lawyers on staff, we should use them. Continue reading

Posted in law, shenanigans, supreme court | Tagged , | 2 Comments