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Can't let the month of May end without answering the Recusal Quiz question. As readers will recall, the quiz was occasioned by Linda Greenhouse's report that the Supreme Court had affirmed a lower court decision. The reason? Four justices recused themselves on account of "[f]inancial and personal conflicts of interest" in the case, in which victims of the apartheid era seek damages from myriad corporations that did business in South Africa during that time. Over at Opinio Juris, Roger Alford wondered whether "anything like this" had occurred "in such an important case." Convictions' Recusal Quiz posed that question more pointedly:
In what case decided 60 years ago this month did three justices recuse themselves because they had a financial stake in the outcome of the issue at bar?
The answer:
Shelley v. Kraemer, decided May 3, 1948, in which the court held that a state judge violated the Equal Protection Clause of the 14th Amendment by enforcing a deed covenant that forbade the transfer of property to African-American buyers.
The vote in Shelley was 6-0. The reason? Justices Robert H. Jackson, Stanley Reed, and Wiley B. Rutledge recused themselves; each owned property subject to racially restrictive covenants. Had one more justice been in the same situation, the court would have lacked a quorum in Shelley. Instead of a unanimous vote against, the result would have been a vote in favor of racially restrictive covenants—and that result would have obtained until either the composition of the court or the property holdings of its members changed.
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Rick Hills has a series of excellent posts on slippery slopes (see here, here, and here). He argues that slippery slope arguments should be regarded with suspicion, and he singles out the refrain from opponents of gay marriage: If you permit gay marriage, then you must also permit polygamous marriages, marriages between people and animals, and all other marriages between a person and any object of desire. Hills argues that such slippery slope arguments deny the existence of "conceptual ledges"—or, one might say, ethical ledges—that prevent the institution of marriage from sliding into the abyss of a sexual Babylon. We are capable of making distinctions on the basis of some moral theory about the purpose of an institution. If the purpose of marriage is to encourage long-term romantic relationships between two people, possibly though not necessarily with procreative consequences, then different-sex and same-sex marriage are morally indistinguishable. Why, Hills asks, does the slippery slope argument persist?
We can address Hills' puzzle about the popularity of slippery slope arguments by asking why no one made the following argument, say, 20 years ago when the idea of same-sex marriage was still as outrageous as the idea of polygamy is today. Why didn't, say, a feminist opponent of marriage make the following argument to conservatives who (mistakenly) believed that they should support traditional marriage: "You think you support traditional marriage. But if you define a traditional marriage as a long-term romantic relationship (etc., etc.) and you don't think that infertile and elderly people should be denied the right to marry, and thus you don't think it is essentially a procreative relationship, then you, via slippery slope, must also think that same-sex couples have the right to marry. Since you can't and don't think that, you should withdraw your support for opposite-sex marriage. People who make long-term commitments should receive no special legal status; otherwise, we are on the slippery slope to sexual Babylon."
Why would such an argument have seemed odd? The answer is that slippery slope arguments depend on a strong presumption in favor of the status quo, and thus are invoked only when someone advocates departing from the status quo (extending marriage rather than preserving it). This presumption in favor of the status quo reflects anxiety that if we depart from existing patterns of behavior, reason will not be strong enough to justify a new set of conventions that we can be happy with. Lawyers will recognize this anxiety from ordinary common-law reasoning. Judges rarely question precedents, and when lawyers argue that precedents should be overturned, the opposite side will make a slippery slope argument. The sanctity of precedent reflects the old cliché that it is better that the law be settled than be correct. The same point can be made about social conventions. That is why one sees both conservatives and liberals making slippery slope arguments. Liberals typically make these arguments when someone advocates relaxing civil liberties in order to address some new problem. "If we give the government the power to engage in surveillance of international calls without a warrant, we are on our way to dictatorship." So use of slippery slope arguments is not particularly conservative or liberal, at least not in a political sense. But it does reflect a conservative or legalistic habit of mind, one that fears departing from existing rules because of pessimism that society can arrive at a set of rules that are superior. Most social conventions are arbitrary—we could be equally happy or unhappy with a different set of conventions, and the particular moral theories used to justify existing conventions are frequently phony, after-the-fact rationalizations for the way things are—but some set of conventions is necessary for social life. So if we are constantly having to justify them, we will find that we can't, in which case we will incur very high transition costs for the sake of moving to another set of conventions that will, in short order, seem no less arbitrary than those from which we started.
The slippery slope argument has become shorthand for the view that if we try to make sure that all our social and legal conventions are morally justified, we will end up with no conventions or (what is almost the same thing) in a state of permanent transition between different conventions, which would be worse than tolerating existing conventions that are unjust. This argument is, at the extreme, an objection to any time of reform, and so cannot always carry the day, but it is not an argument that one can refute simply by showing that the proposed new convention is morally superior to the old one. But the reason this argument persists in the same-sex-marriage debate is that it is impossible to point out any concrete harms from recognizing same-sex marriage, and thus the only argument left is this anxiety about the arbitrariness of conventions.
Perhaps liberals and conservatives can make a pact: If liberals stop arguing that any reduction in civil liberties in order to combat terrorism will result in dictatorship, conservatives will stop arguing that any relaxation in our sexual conventions will lead to perdition. On the other hand, if both turn out to be right, we will find ourselves sliding in the direction of a police state that is a sexual Babylon—something for everyone, I guess. Odd that there is not a coalition yet that connects imperial flourishing with sexual and cultural as well as political decadence. We will have to await another Edward Gibbon to make this argument.
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There's a University of California-Berkeley alum in my household, and so we're frequently inundated with promotional materials from the university.
Last week we received the latest issue of The Promise of Berkeley, a big glossy production designed to tout the accomplishments of members of the university community. The spring issue includes a piece promoting the close connections between Cal Berkeley and the U.S. government here in D.C. "A number of Berkeley's faculty have held positions in past presidential administrations or worked closely with presidential candidates," it boasts. And so The Promise of Berkeley asked six faculty members—"three from each side of the aisle"—to "reflect on their time in Washington, what's at stake in the 2008 presidential election, and what Berkeley means to them."
The Dems profiled are, not surprisingly, Chris Edley, Bob Reich, and Janet Yellen. The editors apparently had a more difficult time finding prominent Republican officials on their faculty: They chose Dan Schnur (a poli-sci lecturer who worked on McCain's 2000 primary campaign), Sandy Muir (a speechwriter for Bush 41), and, you guessed it ... John Yoo.
Continued at Balkinization ...
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With the conviction of elite track coach Trevor Graham, the government scored yet another victory in it' war on elision. Graham joins a legion of high-profile defendants (Scooter Libby, Lil' Kim, Martha Stewart, etc.) who have been prosecuted and convicted not for the conduct at the center of the investigation but for being less than fully candid about some aspect of it. And though this might sound like a fine thing, at some point the general publici s going to finally start to listen to the age-old advice of criminal defense lawyers everywhere—don't talk to the cops. Don't talk to the feds. Not ever. Not about anything. Ever.
Federal agents, like their state law counterparts, have enormous power to make people talk. They use intimidation, the threat of public humiliation, and a myriad other tactics to get reluctant people sit down with them for "voluntary interviews." To get a sense of what I'm talking about, recall the scorn heaped on the Ramseys after their child JonBenet was murdered. Then again, had John and Patsy talked, there is little doubt that innocent or not, they'd have wound up in a jail cell somewhere.
By using perjury the way Elliot Ness used tax evasion, the federal government runs the risk of a backlash. This is especially true when (as in Martha Stewart's case) the statements at issue were made not during depositions or trials, but rather in informal, almost casual conversations with agents (some of which were never even recorded or transcribed). Given that even a fairly minor misstatement made in the course of a casual chat with a federal agent can lead to a prison sentence, the day may soon arrive that normal middle-class citizens begin to adopt attitudes toward talking to the police that mirror those long held in poor communities of color: Just don't. And that will start to really hamper investigations and genuinely harm law enforcement.
Time to throttle back on the perjury cases? High time, I think.
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Memo to the New York governor:
Re: Your same-sex juggernaut.
Regarding your decree for New York to be same-sex-marriage friendly—my, you are quick—too quick. Thanks to thoughtful comments received to my earlier expressed concerns about your action, let me remind readers upfront that I filed on the side of traditional marriage in the California cases. While the California opinion is long (more than 170 pages and thoughtful in many ways, it managed not to fully discuss either the procreative importance or religious significance of the traditional family). But unless the court reconsiders, which I doubt, or the people overturn by constitutional amendment, which is too close to call, California by its regular legal process is marching ahead—hopefully—in a way that strengthens community and marriage and, most importantly, families upon which so much depends.
Your executive memorandum by these terms seems imprudent. Here's why:
Article IV of the U.S. Constitution provides that "full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other state." It has been a much-debated question among legal scholars as to what exactly it means when one state—say, California—approves something highly controversial like same-sex marriage when another state—oh, say, New York—has strongly disapproved of the same issue in its highest court. You and your legal counsel have not, in my judgment, fully addressed either the meaning of Article IV against the backdrop of New York's public policy in your hasty directive, and, by your precipitous action, perhaps damaged your own position.
Of course, as a matter of precedent, I know you got zero help from Massachusetts. A quirky old Massachusetts law limited its same-sex ruling to itself—that is, residents of Massachusetts. Imagine stodgy old Massachusetts approving same-sex marriage, but then refusing to marry nonresidents.
California by contrast is made up of people who arrived here yesterday, so we are not that picky. No waiting periods, no residency requirement, and since we're not much bothered if others don't approve of us, no reciprocity required, either—that is, we're willing to issue same-sex licenses whether other states think them valid or not. California is thus hanging 10 on this surfboard all alone, so it's good of you to send us some New Yorkers to keep us company. But here's a question for you, governor, as you are welcoming back home your residents returning from Disneyland: Does your executive pronouncement also authorize New Yorkers who don't have the gas money for Route 66 or airfare to fly cross-country to Laguna Beach to get married in Massachusetts or not?
Oh, wait, that's really a question for the people of Massachusetts; indeed, the Legislature of Massachusetts. The Legislature actually still makes the laws in the Bay State. To someone, such as yourself, with rapid-fire executive pen, lawmaking by lawmakers may seem quaint, even retro. And get this, they are so into that John Adams HBO special, the tricorn-hatters in Massachusetts even have courts working out the kinky ambiguities in statutes. And kinks there can be, like whether the nonavailability of same-sex marriage in Massachusetts to nonresidents turns on whether the nonresident's state constitution does not mandate same-sex marriage (which is the view of the New York Court of Appeals about the New York constitution) or your rather unprecedented, if not unauthorized, order that out-of-state same-sex marriages simply be treated as valid. A single lower-court benefits decision that was not appealed is too slender a foundation for remaking the public policy of the state as it has existed, well, since the state has existed, and as recently confirmed by your high court.
At a minimum, you'll admit it's a question worthy of the final Jeopardy round. Oh, not perhaps for someone like yourself, governor, whose clairvoyant almost paranormal executive decision-making is, as we say in Malibu, way cool. By the way, just curious, but how exactly did you know to instruct New York on the need to handle California same-sex marriages the day before the case was decided?
But don't get us wrong—out here in "Cal-ee-for-nee-a," we like our action-figure governor (you two should "do lunch"), and of course, we're thrilled to be thrust into even an off-Broadway spotlight. We may complain about paparazzi and have Ken Starr drafting ordinances to keep ‘em edgy, but we actually crave the attention. (Who knew, right?)
This "speed racer" disposition of yours is particularly generous since the same-sex marriage licenses we're minting today may not be worth a postage stamp after next November if the people of California decide to amend the constitution and overturn our Supreme Court. As I say, the outcome of that is uncertain and worthy of intelligent debate, and so, as busy as you are making, interpreting, and enforcing laws—you might well hesitate on our ambivalent account. Moreover, governor, a few of your cranky bureaucrats may snipe at you for the massive administrative headache you may have just created in matters of tax, child custody, divorce, insurance, and such by giving full faith and credit to that which California may or may not decide in a few months is au passé. Trends are like that out here, so do try to keep up.
Or better yet, why not wait until the people of New York themselves can chat it up with those elected representatives in Albany? Way boring, I know—no carpe diem, no 15 minutes of fame. Nope, just listening to the people and governing in accordance with their usually sound inclinations. This won't get you Oprah—and definitely not Ellen. It will give you the satisfaction, however, that you kept your oath.
Sure, the niceties of lawmaking and law interpreting and law enforcing could all be done in your office. If democracy were premised upon efficiency, rather than representation and deliberation, this would be a salutary thing. As it is, Madison had a name for the usurpation of power and its unification in a single hand: tyranny.
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Tribe's response can be found on Balkinization:
http://balkin.blogspot.com/2008/05/larry-tribe-on-liberty-and-equality.html
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that with nothing left to lose, and the Democrats likely to gain political power in the near future, the Republican-appointed justices on the Supreme Court might vote to overturn Roe v. Wade because they no longer fear that overturning Roe will seriously damage Republican electoral changes—at least, that is, any more than they have already been damaged. I believe this result is unlikely, on several grounds.
continue reading at Balkinization ...
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Well, it looks like John McCain will have to stop using Roberts-Alito as if it were one word to describe his preferred type of judicially restrained nominee.
In recent disquisitions about judges, McCain has been trying to simultaneously shore up his conservative base without riling up his moderate friends. It's a difficult rope to walk without hanging oneself. Indeed, the conservatives have already noted a McCain tendency to flatter Roberts and Alito but to omit the more controversial (to moderates) Scalia and Thomas.
Now McCain has a new problem. Roberts and Alito are going different ways. What is a candidate trying to rely on the caricature of judicial activism to do?
Justice Alito has twice rejected the chief justice's willingness to allow government activities immunity from the jurisprudence of the dormant commerce clause that preserves an interstate market from economic protectionism (Kentucky Department of Revenue v. Davis this term and last term United Haulers v. Oneida-Herkimer Solid Waste Management Authority both thoughtfully discussed by Lyle Dennison on SCOTUSblog), and today these Reagan fraternity brothers are divided over an important age-discrimination case. Justice Alito took a lot of heat for carefully parsing the statute of limitation under Title VII last year, which denied a gender-discrimination lawsuit as being beyond the time permitted to sue (Ledbetter v. Goodyear). Roberts agreed with him on that one. Today, in Gomez-Perez v. Potter, however, Alito and Roberts divided again over an age-retaliation claim under the ADEA, with Alito allowing it.
The Alito opinion is a testament to meticulous statutory analysis, fully utilizing text and legislative history as well as situating the decision in the larger body of civil rights and employment statutes and precedent. It gives lie to the notion that Alito is pro-business or anti-employee, so prominently alleged during his confirmation hearing. As his colleagues on the 3rd Circuit knew (and testified, contrary to the academic sniping), Justice Alito is simply pro-reading-the-law-carefully. That is not to say the chief justice doesn't read statutes well—it's just that his dissenting opinion today puts far more emphasis upon a speculation drawn from why the executive branch has separately treated retaliation claims for federal workers differently than can be found in the text and structure of the statutory regime.
What should not be lost, however, is that even as Alito and Roberts disagree, it is a disagreement that is both civil and broadly incorporating of respect for precedent and legislative history.
And what about Justices Scalia and Thomas—those great unmentionable ones to Sen. McCain? They separately dissented in Gomez-Perez because of, among other reasons, one suspects, Justice Scalia's well-known dislike for any mention of legislative history.
Oh, and to make things more interesting, Roberts-Alito split together from Thomas-Scalia in a second case, CBOCS West v. Humphries, implying a retaliation claim under Section 1981, a statute that deals expressly with race only. Thomas and Scalia have made a point of emphasizing that racial discrimination and retaliation for racial discrimination are not one in the same. Analytically, it is a sound point. Unfortunately, it is also a point that the court has rejected several times, and that precedent (right or wrong initially) is too embedded in the overall structure of civil rights law to be set aside, a point nicely highlighted by Emily.
Will the real judicially restrained judge please step forward? Using the canard of widespread judicial misbehavior is just not in the cards for John McCain. We are the better for it, and the independent-minded John McCain of 2000 would have agreed.
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The Supreme Court today held 7-2 that a black former employee of Cracker Barrel can go ahead and sue the company for retaliation, based on his allegations that it fired him for complaining about racial discrimination. A few months ago, I thought that the case might come out the other way and serve as a vehicle for the court's conservatives to rein in employment-discrimination law. Instead, Justice Stephen Breyer's opinion—joined by all the justices but Antonin Scalia and Clarence Thomas—relies on the principle of stare decisis, or respect for past precedent, to allow employees to sue for retaliation based on an 1861 law that doesn't mention retaliation explicitly. The key precedents are a 1969 holding from the Warren Court striking down a restrictive housing covenant and a 5-4 ruling about retaliation claims brought via Title IX (the law that prohibits gender discrimination in school sports) written by Sandra Day O'Connor in 2005. Breyer carefully lays them out and then writes that considerations of stare decisis "impose a considerable burden upon those who would seek a different interpretation that would necessarily unsettle many court precedents." A page later, he acknowledges that the statute nowhere mentions retaliation (nor did Congress add it in amending the law in 1991). But, Breyer writes, "that fact alone is not sufficent to carry the day."
Thomas and Scalia disagree. Kennedy, Alito, and Roberts, however, stand with Breyer in upholding the Warren Court decision and the O'Connor majority opinon instead of going with the plain text reading. There are good reasons for the majority's position aside from stare decisis: As Breyer points out, when Congress re-enacted the law in 1991, lawmakers thought they were expanding the statute's original scope. But the main point is that it will be worth watching if and how today's division over how to read a statute plays out among the conservatives. Also, today's opinion is more fodder for Linda Greenhouse's observation about the decline of the 5-4 split, at least so far this year.
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Eric's provocative question whether "within-family reproduction is good in itself" is essentially asking whether the fall in fertility among existing Americans is fungible with the fecundity of recent immigrants from other nations and cultures. Without indulging too much American exceptionalism, I do think there is a distinctive American culture that is lost by that trade. Giving expression to that distinctiveness would violate every principle of blog writing, but for shorthand, let's just say one finds evidence of it in everything from the natural law premises of this Republic's Declaration of Independence to the great success of the recent John Adams HBO special to the content of any presidential aspirant's stump speech. These things begin to capture some of what is lost by supposing immigration to be a perfect substitute for our modest replacement rate.
Thus the significance of sustaining the marital family is far more than a favorable worker-retiree ratio, though that would be helpful in itself to avoid the coming Social Security bankruptcy attributable to both the population decline, and more immediately, the extreme war-related fiscal irresponsibility of the incumbent president. I concede Eric's point that it is more efficient to have people save for their own retirement and avoid transfer payments, but that is not the economic structure we have.
Eric's pro-immigration sentiment expressed within the sentence "paying people to have more babies doesn't seem reasonable when there are so many millions clamoring to get in" does earn two cheers from me, but it not only understates the uniqueness of American culture, it also misses entirely that a marital family is indeed worth preserving and far more than a "bourgeois construct designed to channel the revolutionary energy of sexuality into diaper changing and carpool planning."
In its traditional form, marriage transforms by covenant the emotional and sexual attraction of two individuals into a lasting relationship (AEI's Michael Novak reports modern marriages have a 66 percent success rate) capable of sharing intimate personal goods as well as serving larger social purposes. That the California Supreme Court declares these same personal goods to be within a same-sex relationship has to date been the public debate. To leap from the acceptance of the inclusionary California ruling to the dismissal of marriage as a "bourgeois construct" is a far more revolutionary notion that I suggest Eric may wish to rethink by simply indulging the thought experiment of how uninviting a world without the civilizing efforts of marital family would be. When the marital union is strong, it is also stable, and in this atmosphere of stability children are welcomed and reared to be responsible, healthy, and well-educated citizens. Who exactly undertakes this responsibility under Eric's model?
Intra-marital union or intra-family, freedom is acknowledged in exchange for the faithful performance by the family of social expectations or obligations toward the education and care of family members. The public sovereign respects the private marital union so long as it sustains itself and yields new individuals with sufficient qualities to maintain the ongoing functions of the community as a whole. In short, it is anticipated that those raised intra-family have received such direction that, upon emancipation and emergence into the public community as free and independent citizens, they will live productive lives and respect the equal dignity of human beings.
Finally, as for "the planet chok[ing] on the greenhouse-gas emissions of the multiplying hordes," this neo-Malthusian supposition is empirically misdirected when world population growth has declined by more than 40 percent since the late 1960s.
Worried about greenhouse gases? It would be far more direct, to use Eric's terminology, to require automakers (and fuel-inefficient, consuming auto-buyers) to pay for the actual value of the air resources their products consume than to undermine the foundation of the civilized world as we know it.
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In his interesting post, Doug Kmiec argues that the U.S. government should adopt French child-subsidy policies in order to encourage Americans to have more children. But unless within-family reproduction is good in itself—more on this in a moment—there is no reason to ape the French, whose motives are, as Kmiec notes, entirely based on demographic fears that do not exist in the United States. Thanks to immigration and the fecundity of recent arrivals, the U.S. population is already growing; why would we want it to grow more rapidly?
Doug thinks that we should use the tax system to compel ourselves to pay otherwise-unwilling others to produce offspring who will grow up and finance our retirement. Wouldn't it be easier if we just saved our own money for retirement or, if that is too hard, increase current Social Security taxes and future payouts? Why this complicated business of bringing into existence an entire generation of workers to serve as a vehicle for transferring our money from our current selves to our future selves?
To be sure, it's possible that we would all benefit if the American population grew. Whether we would is a very tricky question that I won't try to answer, but if so, a better way of populating the land is to admit migrants instead of creating otherwise-unwanted persons by subsidizing childbirth. Paying people to have more babies doesn't seem reasonable when there are so many millions clamoring to get in.
I can't help thinking that Doug's idea that being pro-family means being pro-reproduction reflects an instinctive effort to shore up a social conservative philosophy under assault by our rapidly changing mores. Suppose Americans come to approve of gay marriage and to treat it the same as heterosexual marriage. What becomes of "family values," once such a politically potent slogan? Republican Party strategists must be scratching their heads. If family values can no longer be against homosexuality, what are they against? Single people? Premarital sex? Here's a prediction: The family values debate of the future will pit gays and straights who think everyone should get married and have children against gays and straights who think that marriage is a stodgy bourgeois construct designed to channel the revolutionary energy of sexuality into diaper changing and carpool planning while the planet chokes on the greenhouse-gas emissions of the multiplying hordes.
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Holidays like Memorial Day are times for families to gather, and my married daughter, Katherine, a deputy county counsel for a Southern California county government, shared her reflections as a citizen and spouse upon the California Supreme Court's recent decision in favor of same-sex marriage.
Katherine astutely observed that one salutary byproduct of the decision would be to prompt the government to re-examine whether there are adequate existing incentives to have and rear children. Drawing comparison with practices in Europe, Katherine speculated that existing, marriage benefits in the United States might be better directed to and augmented for those same-sex or traditional couples who willingly assume the opportunity costs associated with having and rearing children, as opposed to those who don't.
As an aside, while we did not undertake a macroassessment of the dollar value of direct U.S. "marriage benefits," they do not seem to be overwhelming; for example, if a couple has disparate incomes, filing jointly is usually a benefit, but because of tax brackets, couples with high incomes may still be penalized; there is also a spousal exemption from estate tax, and of course, modest Social Security and Medicare spousal benefits. The benefits available to married employees (e.g., health and life insurance and retirement plan contributions) and the nontaxability or favored tax treatment of those benefits may be the most significant indirect economic benefit for married couples with or without children. There are few government or employer child allowances for children comparable to those found in other countries (see below).
It is well-known that falling birthrates threaten to undermine the economies and social stability across much of an aging Europe. Katherine's father (me) thought procreation one of the most plausible state reasons for skepticism toward a public affirmation of same-sex marriage. The argument had a rational but not compelling basis because of the obvious imperfect fit between marriage and procreation (e.g., elderly and infertile couples). The fact that our state Supreme Court has now reached the conclusion that a rational basis is insufficient to justify the traditional definition of marriage does not mean that the state interest in fertility and responsible parenting has disappeared.
Since this concern is even greater in Europe, it is reasonable, as Katherine counseled, to inquire as to thinking and experience in foreign venue. Consider: France. Until recently, French fertility rates had the same downward slope as the rest of Eastern and Western Europe, but today its fertility rates are increasing. In fact, France now has the second-highest fertility rate in Europe—1.94 children born per woman, exceeded slightly by Ireland's rate of 1.99. The U.S. fertility rate, by comparison, is 2.01 children. This has made France the subject of considerable study by officials from Japan, Thailand, and Germany, all of which are facing the prospect of dropping off a steeper demographic cliff.
What accounts for France's increased population? While it might be the romantic nature of Frenchmen and the historic connection to Catholicism, it is more traceable to some rather substantial subsidies for children and families paid by the French government. For example, the government provides reimbursement for child-care costs for mothers of toddlers up to the age of 3 and free child care from age 3 to kindergarten. The Washington Post reported that a new law "provides greater maternity leave benefits, tax credits and other incentives for families who have a third child. During a year-long leave after the birth of the third child, mothers will receive $960 a month from the government, twice the allowance for the second child."
While some of these allowances are progressive and aimed at low-income families, many are available to all, recognition that France better understands than the United States how it is discriminatory to make women choose between career and motherhood. Moreover, "French law [allows women] to opt not to work or to work part time until her child is 3 years old—and her full-time job will be guaranteed when she returns."
In sum, the French tax and economic system provides the following benefits for families:
- generous child allowances
- subsidized preschool and daycare
- substantial maternity leave and right of return
- tax benefits for transportation and some family purchases
- subsidies for in-home care
- government-provided recreation programs
- a private market that responds with services and hours of operation aimed at meeting working family needs, like, for example, pediatricians who make home visits
- the well-known French extended (36 paid day) vacation.
So, the next time you hear some U.S. official boasting about "freedom fries" rather than "French fries," feel free to tell them they have some ‘splainin to do. America and France may both extol family values, but France (and a number of other European countries as well) also values family in the way hard-headed economists understand.
In significant part, avoiding stigmatic harm to same-sex families prompted the inclusionary ruling by the California Supreme Court. In the court's words, "the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own—and, if the couple chooses, to raise children within that family—constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society."
The new importance of not drawing marital distinctions on the basis of sexual orientation should not obscure the equal importance of specially acknowledging the good to society that natural or adoptive parents provide—whatever orientation prompted them to come together.
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Diane makes an excellent point that no one appears upset with the D.C. Circuit's reliance on foreign practices in the recent currency case.
In my view, the lack of reaction helps to confirm a theory I offered in a blog post in 2005 in response to an essay on the topic of citing foreign law by our own Deb Pearlstein: The opposition to foreign law isn't really opposition to foreign law per se, but rather opposition to citing sources and making arguments that clearly take sides in the culture wars. Here's what I wrote on the topic back then:
The real issue isn't sovereignty, but the culture wars. The Supreme Court's citations to foreign law have appeared in highly controversial cases at the heart of a national sociopolitical divide between (for lack of better labels) social conservativism and modern liberalism. The kinds of foreign countries that a Supreme Court Justice might know best mostly don't share this sociopolitical divide: in those countries, and especially their court systems, the views of modern liberalism for the most part have won out. In this environment, stressing similarities with foreign court decisions can seem a lot like taking sides in the culture wars.
When a Supreme Court opinion echoes a side in the culture wars, the other side naturally gets very upset. Witness the very strong reaction from pro-choice commentators to Justice Kennedy's opinion in Gonzales v. Carhart in 2007, which at times spoke about abortion using language and arguments from the pro-life side of the debate. The angry reaction to Kennedy's language in Carhart was quite similar to the angry reaction from conservatives after Kennedy cited foreign law in cases like Lawrence and Roper.
By contrast, the culture wars weren't in play in the D.C. Circuit currency case. There isn't a progressive or socially conservative approach to currency size. Sometimes a dollar bill is just a dollar bill. I think that goes a long way toward explaining why no one seems to be upset with that part of the opinion (in addition to the fact that the opinion was statutory, not constitutional—presumably that helps).
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It was not the court's 2-1 holding that, by refusing to design and issue paper money so that visually impaired persons can readily distinguish among denominations, the U.S. Treasury Department violated this statute:
No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency. ...
What was striking, rather, was that the court based its conclusion that Treasury had not made requisite accommodations on the fact that other countries had made such accommodations. "Of the 171 authorities issuing currency," Judge
Judith W. Rogers wrote (Page 8), referring to a 1995 report, "only the United States prints bills that are identical in size and color in all denominations." She noted that Canada adopted accommodations in 1995, adding that such accommodations are part of the
euro currency adopted in 2002. Judge
A. Raymond Randolph dissented on the ground that the interlocutory decision was premature. His discussion also accepted foreign examples as relevant points of comparison—as did media accounts of the decision (
here and
here).
The case seems a classic example of how consultation of foreign practice may aid interpretation of U.S. law—the "comparable questions" example about which I've written
here (Pages 1340-41) and
here (Pages 605-06). Given objections to foreign consultation in other contexts, the fact that judicial use of a foreign yardstick in this case went unremarked is itself worthy of remark.
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The current Bush administration defense of its Terrorist Surveillance Program, known to some as the illegal domestic spying program, leans heavily for its legal justifiation on the Authorization To Use Military Force, which was passed right after 9/11. The argument is that the AUMF is a later-enacted, more specific measure, and that it therefore supersedes the more general and earlier adopted Foreign Intelligence Surveillance Act. By this means, presto, the AUMF authorized warrantless wiretapping consistent with the terms of that later-enacted statute. Many in Congress are already on record saying that they never intended the AUMF to have that consequence and that evidence of legislative intention has bolstered arguments by many opponents of the program that the administration's statutory claim is risible. But now this recent disclosure reinforces that judgment. It indicates that the Bush administration lawyers who were around when the AUMF was negotiated also did not think the AUMF had that consequence. Their initial theory, the new disclosure indicates, was that, even aside from their broad views about the president's power as commander in chief to override conflicting statutes, FISA itself contained an implied exception for the president to do what needed to be done. The AUMF argument, then, was something that the administration came up only with much later. But if neither the congressional leaders nor the Bush administration lawyers who actually negotiated the AUMF's passage thought that vaguely worded measure sufficed to provide authority for warrantless wiretapping, then what exactly is the reason to think that the best reading of that statute is the one that is now being pushed by the administration? After all, it's one thing to contend that a vague, later-enacted statute supersedes an earlier one that is clear. It's quite another to argue that a later-adopted interpretation of that same statute should supersede the original one.
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After all, legislation is property itself. Or so suggests the Oregon Senate.
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Deborah, I too get the sense (from gay service members who have recently left the military) that "don't ask, don't tell" is generally disfavored by a broad segment of the military community. And I would be delighted for the Supreme Court to use this context as an occasion to rethink its stance on military deference if or when the case arrives there. But here is why I remain pessimistic.
I don't think the detainee cases are going to revise the court's stance on military deference in the "don't ask, don't tell" context. First, I think the detainee cases themselves exhibit a not insignificant amount of such deference. Second, like you, I think the DADT cases will cause to the court to look at cases involving the civil rights of service members, not the civil rights of detainees. Third, I think that if the court considers DADT, it will at most apply rational basis "with bite" (either under Lawrence v. Texas, which I take to be a rational-basis-with-bite case in the rights realm, or under Romer v. Evans, which could be read as a rational-basis-with-bite case in the classification realm).
The only Supreme Court equal-protection case I know where the plaintiff prevailed against the military is Frontiero v. Richardson (1973), where Sharron Frontiero successfully challenged a benefits scheme that facially discriminated on the basis of sex. That case is easily distinguished on the ground that it did not concern a core military function. In cases that did involve national security, military readiness, or unit cohesion, the court has been extraordinarily deferential, as I stated in my earlier post. Indeed, Rostker v. Goldberg (1981), which upheld the male-only draft, is also generically cited for the proposition that "judicial deference to ... congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged."
It's worth dwelling on the sex discrimination context here. (Race and national origin are not going to be as probative, because the court will be uncomfortable citing Korematsu for military deference and because the racial integration of the armed forces was accomplished by Truman's executive order rather than through a court decision.) In 1981, when Rostker was decided, sex-based classifications already drew intermediate scrutiny under Craig v. Boren (1976). As Cass Sunstein has noted, even before United States v. Virginia (1996), intermediate scrutiny was a lot closer to strict scrutiny than it was to rational basis review. As a purely analytic matter, it seems that if military deference allows congressional legislation to survive intermediate scrutiny, it would a fortiori allow congressional legislation to survive the rational-basis-with-bite the court would apply under Lawrence or Romer.
As for the effect of a possible amicus brief from retired generals, I'm also not sanguine about the weight the court would give to such a brief, even if it came into existence. Some of the most visible retired generals, such as H. Norman Schwartzkopf or Colin Powell, testified in favor of DADT. So, they would have to have George Wallace moments to participate in such a brief. Moreover, even if such a brief were filed, I doubt the military's green brief would be as influential here as its brief allegedly was in Grutter v. Bollinger. In Grutter, the military brief cut for the court's inclination to defer to educational institutions; here, the military brief would cut against the court's inclination to defer to the political branches. More importantly, it would not just be the "civilian executive" (as you posit) defending the DADT policy, but also Congress. One of the awful things about DADT is that, unlike the prior 1981 executive order governing gays in the military, it is a joint creation of congressional legislation and executive regulation. And so one could argue that not only Article II military deference to the executive, but also Article I deference to the Congress, would be due from the court.
Don't get me wrong-I've written at length about the injustice of this policy. But unless the court revisits its military deference doctrine, the solution here is much more likely to be legislative repeal than judicial invalidation. Opponents of the policy should allocate their resources accordingly.
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Phil, I don't understand your post's statement about how the Court of Appeals for the Armed Forces in United States v. Marcum didn't "cite Bowers v. Hardwick and the illegality of homosexuality per se." This implies that the Marcum court could properly have cited Bowers but decided not to do so. But Marcum could not have properly cited Bowers, as Marcum (2004) occurred after Lawrence v. Texas (2003), which explicitly overruled Bowers. What am I missing?
The dominant note here, though, is one of agreement. United States v. Marcum is indeed a hopeful sign of how Lawrence could be applied. At the risk of stating the obvious, no opponent of "don't ask, don't tell" I've ever encountered disagrees with the importance of unit cohesion in the military. It's just that we, like you, don't think that having service members who engage in private adult consensual homosexual conduct in and of itself is going to destroy unit cohesion, as the experience of other countries (Israel, Canada, etc.) has suggested.
Indeed, one of the most frustrating things the military and Congress has done is to predicate their policy on the empirical claim that openly gay service members destroy unit cohesion without permitting that empirical claim to be tested. As Jennifer Gerarda Brown has argued, even one regiment integrated on the basis of orientation would shed some light on this question, even if the United States military eels itself to be so exceptional that the experience of military organizations in other countries and quasi-military organizations in our own is insufficient.
Equally important here is that Lawrence not be read too broadly to protect sexual conduct that the opinion itself said should not be protected. It would be a tragedy if Lawrence were improperly read to protect nonconsensual sexual activity (like rape or sexual harassment), whether that activity was cross-sex or same-sex in nature, or whether it occurred inside or outside the military context. Marcum's three-part inquiry recognizes this as well:
First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?
In some sense, this language just makes explicit what all lower courts must do anyway, which is to apply the Supreme Court's precedent with adjustments for the fact that the precedent was decided outside the military context. But its explicit statement is helpful, especially as it lends credibility to the results in these cases, which, as you say, are not anti-gay.
The final great thing about Marcum is how much the 9th Circuit relied on it. We see Article III court-Article I court convergence here, as the Witt panel heavily relies on Marcum as persuasive authority. So, why am I so pessimistic? For more, see my response to Deborah.
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Good point, Eric, I had confused the respondents who had said they were "unfavorable" toward a justice with those who were "not sure," and it would be the latter group that would contain most folks who don't know any justices. The former group might contain people who couldn't produce justices on their own but were still willing to opine on them once given their names, but even if so, I see no reason to believe that those people would be less favorable to the justice they were asked to evaluate. I also like Dahlia's point that justices who are more visible as individuals tend to be more disliked. Is the lesson of this that the justices should "hand up" their Delphic pronouncements from a hole in New Hampshire?
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We have previously noted how the Supreme Court might be deploying the facial/as-applied distinction to reach minimal levels of consensus that would otherwise not be possible because of the ideological differences on the court. One prominent example was the Supreme Court's upholding of the federal partial-birth abortion ban on facial grounds in Gonzales v. Carhart. Consensus on the Supreme Court does not mean the division in the universe disappears, however. It is simply shifted back down the judicial hierarchy to the appellate bench. Thus, in Richmond Medical Center v. Herring, on remand to the 4th Circuit in light of Carhart, a 2-1 panel led by Judge Michael invalidated the Virginia partial-birth infanticide act on its face.
Pursuing a facial challenge in the lower court may seem contrary to the Supreme Court's preference for as-applied challenges, but the two-judge majority reasoned that the high court's preference for as-applied adjudication exists only in the partial-birth abortion context with respect to the need for a health exception and not for any consideration of the definitional scope of a statute. That is debatable, but dicing the jurisprudence in this way, the majority believed the Virginia act overbroad because they asserted it would impose criminal liability on a doctor for accidentally performing a partial-birth procedure when a more typical dissection procedure had been intended. Judge Niemeyer vigorously dissented on this point of statutory construction pointing to a mens rea requirement that was identical to the federal statute and most assuredly preclusive of accidental criminal liability.
Putting aside the statutory interpretation question, it will be interesting to see if and when the litigants pursue a petition for certiorari, assuming an en banc denial, whether the high court will view this as defiance of its judgment in Carhart and wade back into this contentious subject. If the justices pass, the case illustrates how thin the consensus achieved by the facial/as applied distinction. Indeed, some would contend that if the lower courts are permitted to disregard Supreme Court rulings in this fashion, the general public has been misled into thinking that abortion is subject to limitation, when it is not. All the more reason to believe that abortion is none of the government's business, and the sooner the people revoke its delegated authority under the 10th Amendment to say that neither federal nor state governments should address this topic, the better.
In the meantime, even assuming a facial challenge was appropriately considered by the 4th Circuit, it should be noted that the panel was doubly defiant in rejecting the traditional Salerno standard of facial challenge. That standard is a rigorous one, requiring a showing by the challenger of no conceivable constitutional application of the statute. By contrast, the specially crafted abortion facial challenge standard fashioned in Casey, but seemingly frowned upon in Carhart, of requiring a challenger to an abortion statute merely to show that a significant fraction of women would be unduly burdened is a standard so easily met that virtually no abortion restriction is capable of meeting it.
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I'm not sure why the inconsistency noted by Diane between the Findlaw and Rasmussen poll favors the Findlaw results. It could be that Rasmussen is right and Findlaw is wrong. A possible (partial) explanation for the inconsistency: Findlaw polls "American adults," while Rasmussen polls "likely voters." Typically, 40 percent to 50 percent of eligible voters vote in presidential elections; if "likely voters" is a subset of eligible voters, and both are more informed than "American adults" in general, then we might conclude that Rasmussen surveyed people who are more likely to be knowledgeable about public affairs, including the identities of Supreme Court justices. The puzzle, then, is why, within this subset of Americans with more information, people have favorable attitudes about the court and unfavorable attitudes about the individual justices. (The Rasmussen results also suggest, consistent with Findlaw, that substantial numbers of likely voters don't know or have no opinion, of course; but that doesn't address the puzzle, either.) I do not understand how the relative invisibility of the justices on the court explains the attitudes of those who do in fact see them.
However, I like Dahlia's hypothesis: Americans believe that the court has a valuable institutional role, but they resent the fact that these nine people exercise so much power over them. The more that these individuals have distinct personalities, flaws, quirks, recognizable ambitions, and so forth—the more they seem like ordinary human beings rather than disembodied spirits—the more difficult it is to acknowledge their exalted status in a democracy where authority is supposed to flow from the people. Perhaps judges, like priests, receive power on the condition that they withdraw from the world and submerge their identities in a public institution, and people sense and resent that some of the justices are violating their side of the bargain. Why didn't the oracle at Delphi write her memoirs or a how-to-be-a-supplicant book? Perhaps she better understood the political psychology of her position? An ironic twist: Are the justices who have made themselves more publicly accessible driven by democratic instincts that are inconsistent with the premises of their office?
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I have a slightly different hypothesis for Eric and the new