As I did last
time at this time, this page is in place to discuss and summarize some of the
highlights of this term of the US Supreme Court. A click of the headline will transport you to page which provides
a list of all the opinions of the term [you can also access the Constitution
and commentary on it, if for instance, you have forgotten the exact wording of
an amendment or wish to know more about its meaning], so if you wish to refer
to them or read any that I did not include, go right ahead. Do not be afraid to check out some of the
rulings; the Court has had a tendency recently to decide fewer cases and write
briefer opinions than in the past. The
usual complicated legal jargon is still present, but many opinions are quite manageable
to read, as well as being worth the effort.
For instance, last term’s school
voucher decision opinions are overall rather easy on the brain, as well as
they should be: you should not need to be a law professor to understand rulings
that has the potential to protect the average individual. Linda Greenhouse’s end of the year term
summary (7/1/03, New York Times) was quite helpful, as was various other
articles, some of which I will intersperse in my discussion below.
There were a lot of important cases
this term. The Court was less forceful
in asserting its power this term in many areas, including free speech,
federalism, business cases, copyright, and affirmative action, even in areas
where they have asserted their power in the past. It continued to try very few cases as compared to the past (under
eighty opinions) and often with short opinions, while being less divided per se
as well. The most divisive, not surprisingly,
were certain criminal cases and affirmative action. Overall, however, it can be said they were quite majoritarian,
though some feel they actually were elitist.
They upheld most of the laws and regulations that came before them in
the key cases, being sympathetic of the interests asserted (arguably too much
in various cases), and few of the decisions would be opposed if some poll was
taken on them (not that this is exactly a good thing … constitutional commands
are not just popularity contests).
There are a few exceptions, but then, even some of these can be fit into
this context. For instance, the Court
struck down a punitive damage award, but this currently is a popular issue in
Congress these days. As a final matter,
you will note that I do not discuss many business and statutory cases
below. This does not mean such cases
are not important or interesting … it does mean that I am not as interested or
knowledgeable in them as a general matter.
It is often forgotten that the
Constitution itself, apart from the amendments, have various protections that
serve as a mini-Bill of Rights. One of
these is the provision against “ex post facto” (after the fact) laws, protected
against the federal government (Art. 1, sec. 9) and states (Art. 1, sec. 10) …
again, until the Fourteenth Amendment, this was one area where there were
national rights applicable to the states.
The purpose of this provision is to prevent the state from criminalizing
conduct after it is done, thus making it impossible for people to know they are
breaking the law. Likewise, the
punishment cannot be made more severe, so if a person is awaiting trial, more
severe laws that were passed after s/he committed the crime cannot punish
them. Finally, and more
controversially, making it easier to convict by changing procedural rules that
makes it easier to convict is disallowed.
Applying this final rule to extension of the statute of limitations for
child molestation cases, Stogner v. California
struck down a law reviving liability for long ago sex crimes. One argument against such a result
is that children are different … many do not realize they are being molested at
the time or are afraid to say so. Also,
perhaps in some cases the proof necessary is not available, but later
developments make it possible. Since
the punishment itself is not changed, the Ex Post Facto Clause shouldn’t
apply. On the other hand, statute of
limitations serve an important function … long delays affects memories[1]
and the ability to prove innocence and sends a message that at some point most
crimes no longer should be prosecuted.
Thus, changing the rules in some sense does affect punishment, and if
you do that after the fact, you have a problem.
Though the clause does not
explicitly say so, it has been generally understood to only apply to criminal
cases as long ago as 1798. Thus, ex
post facto burdens deemed not criminal are allowed, though in some cases,
perhaps due process is violated. Let's look at Smith v Doe, arising from
an Alaskan law, which required registration as a sex offender pursuant to a
single nonaggravated sex crime (e.g. nineteen year old guilty of statutory rape
with a seventeen year old girl), no proof of dangerousness required. This requires the posting of:
"The offender's name, aliases, address, photograph, physical description, driver's license number, motor vehicle identification numbers, place of employment, date of birth, crime, date and place of conviction, length and conditions of sentence"
Likewise, the
state has to be given notice of any change to such information, including place
of residence, appearance, and so forth.
Does such mandated activity suggest the law is punitive in
nature? Note also that everyone convicted of a “sex crime” (a “sex
crime” does not necessarily have to involve sex; a conviction for public
indecency, such as flashing, might be so considered) falls under its
terms. The Court (6-3) thought not, so
the application of such burdens for behavior committed before the law was
passed is not a breach of the Ex Post Facto Clause. A possible narrowing feature of the decision was the hard to
believe argument that "no
evidence that the Act has led to substantial occupational or housing
disadvantages for former sex offenders that would not have otherwise occurred”
was provided. Are they serious?[2]
The Court was not very supportive of
the speech rights of any of the plaintiffs who brought forth constitutional
claims in this area, though it did decide some issues narrowly, thus taking
such concerns into consideration. Eldred
v. Ashcroft (7-2) is a copyright case,[3]
but given that copyrights limit freedom of expression (arguably to further it,
or in particular, to “promote the progress of … useful arts” … in fact,
congressional power in this area is dependant on it doing just that), it
clearly also has First Amendment concerns.
The case involved the Copyright Term Extension Act, which extended by
twenty years all existing copyrights.[4] The basic winners here are corporations
[corporately owned works were protected for ninety five years] and the
children/grandchildren of authors [“life plus seventy” as compared to “life
plus fifty”]. Furthermore, only a tiny
amount of works actually continues to be profitable after such a long period of
time; again, it is corporations (who are under no obligation to actually
distribute the material, of course, so the degree of their “promotion” is
debatable) that reap the benefits, not “authors” themselves. As Justice Stevens noted in dissent, how
exactly does extending the copyrights of works already out there “promote”
anything? There is also the fact that
the Copyright Clause speaks of “limited times;” Justice Breyer raises the
distinct possibility that over a hundred years is not quite that “limited.” I would encourage a reading of their quite
interesting and provocative dissents. Of course, the ability of copyright
holders to hold back the distribution of works as well as broadly block fresh
works that in some fashion are inspired by their works makes the extension that
much more troubling.[5]
The copyright case was troubling,
but not too surprising, since the Copyright Clause is broadly expressed; so few
were that surprised with the results.
Other cases were similarly not too surprising, but were as upsetting for
various reasons. FEC v. Beaumont (7-2)
upheld a long ban on direct corporation contributions in federal elections, but
was troubling since the corporation involved was a non-profit ideological
advocacy group. This did not matter,
even though clearly they are different from your typical corporation in any
number of ways. Virginia v Hicks
involved a trespassing law arising from the decision to make a public housing
complex (and the street in front) into private property that only legitimate
visitors can access. The regulations of
what “legitimate” means were not a model of clarity and the involvement of
public streets were particularly troubling for the lower court. I was troubled that the case involved a
father visiting his son, which the unanimous Court did not deem necessary to
mention. As with last term’s case
involving drug use by occupants of public housing, the law per se was
defendable … the breadth of it was the problem. I am less concerned with a unanimous case involving telemarketers
that are held to deliberately misrepresent the amount of money that actually
goes to charity. Illinois v.
Telemarketing Associates Inc. noted that high fundraising costs alone could
not be used to infer guilt. Problems
may arise around the margins, but as a general principle, it is sound.
The same cannot be said about U.S.
v. American Library Association (6-3), which upheld a law that required the
use of filters at libraries as a condition for their federal funding. The filters do not just block “pornography,”
but also material “harmful” to minors … and in practice, a whole lot more. They seem a blatant violation of the free
speech of library patrons, who libraries were speaking for in this case. Clearly, the law burdens adults, but the
rights of teenagers should also be noted as well. The saving grace for the key justices in the majority (the main
opinion was actually a plurality of four) was the ability of adults to ask that
the filters be turned off, which the law allows, but does not mandate. Thus, adults … even in adult sections of
libraries … have to be aware of such a need, and go out of their way to ask
that they be turned off. Of particular
concern, the plurality noted that Internet use in libraries is not a “public
forum,” an especially protected area traditionally used to discuss ideas. Why?
It did not have a long history (thus new forms of traditional forums
have to develop for x number of years before they are protected? how long would
that be?) and is meant to provide information, not promote debate. The prevalence of chat rooms, bulletin
boards, and so forth seems to belie this fact.
Furthermore, it is not necessary to the decision, so seems just plain
gratuitous.
The Court did partially strike down
a Virginia cross burning statute in Virginia v. Black (really … Mr.
Black is white) by noting that a state can make burning a cross in particular a
crime as long it is shown the act was considered to be a threat, not solely
symbolic expression. The provision of
the law that allowed the jury to make an inference from the act itself that it
was a threat was struck. Two separate
convictions were involved, each showing the nuances involved in this area: one
involved criminal trespass and burning a cross on a neighbor’s lawn, the other
burning a cross on one’s own private property during a rally. The latter seems clearly protected
expressive conduct, but the Court (6-3) left the door open to
criminalization. This is clearly wrong
… yes, some types of expression cause disfavor and even uneasiness, but the
First Amendment still protects it.
Furthermore, I do not feel selectively choosing one type of hateful
speech over all others is a valid choice.
As Justice Thomas noted separately,[6]
it is quite true the history of cross burning makes it particularly egregious conduct
in many ways. All the same, it is still
allowed in various contexts, other hate speech is as troubling for various
groups, and conduct has expressive value that makes regulation troubling in various
cases. This sort of “political correct” ranking of hate speech violates equal
protection … R.A.V. v. St. Paul seemed to say just that, and even
involved cross burning.[7]
There was on speech friendly case
this term, Scheidler v. NOW (8-1), which struck down a federal
racketeering judgment against a pro-life group. Their disruptive and blockading tactics against abortion clinics
might have been illegal and in some way coercive (blocking access tends to be),
but it did not meet the definition of extortion (obtaining one’s property by
force or threat) necessary to meet the terms of the law. The group might not be very sympathetic
(even to many other pro-life groups), but the decision addresses the potential
breadth of using laws passed to fight organized crime as a way against
organized protest. Many groups that
pro-choice individuals might be sympathetic are threatened by such applications
that translate various small or not as small violations of laws (like trespass,
which clearly can be punished) into multi-million dollar lawsuits, often
against wider organizations not directly involved in the protest. Furthermore, there is a federal law
specifically protecting access to clinics, which provide a constitutionally
protected service. The means used
therefore not only was a troubling mallet, it was not even necessary to promote
the end sought.
I separately discuss two cases (one national,
one local) touching upon Second Amendment issues here;
one involves using an assault weapon ban to broadly limit the Second Amendment,
another involves an unseemly backhanded way to deprive someone of rights, which
would concern more people if gun rights were not involved.
Chavez v. Martinez (4-2-3)
dealt with an interrogation of a suspect as he was being treated for gunshot
wounds. The suspect was never brought
to trial, which lead a plurality of four to hold that the rights against
coerced confessions did not arise. Two
justices basically agreed, but briefly noted that there was a “serious
argument” that the behavior of the police was egregious enough to violate basic
standards of decency, thus raising due process concerns. Three justices felt the right to be free
from coercion holds true even when there eventually is no trial, in part since
at the time it is unclear there will be one.
The coercion itself supplies a harm that the Fifth Amendment is meant to
prevent. Justice Stevens agreed, but
underlined the “shocks the conscience” problem. The case was sent back to the
lower courts to deal with this question, one that five justices did agree
upon. Besides noting my agreement with
the three (partial) dissenters, I note that split decisions of this sort,
especially those not exactly clear on what was decided, are problematic. They give broad power to the lower courts
without enough guidance for them to use it properly. Added to the fact the Supreme Court currently accepts so few
cases for argument these days, this is not an ideal situation, to say the
least.
Sell v. U.S. (6-3[8]) upheld the right of the government to force mentally ill defendants to accept medication in order to allow themselves to be competent at trial for serious nonviolent crimes, but only if special protections of their own interests are supplied. The state does have an interest in bringing defendants to trial so this is a fair result, unless the defendant’s health or ability to defend themselves are harmed. Such interests are dealt with in the opinion, so this seems like a good compromise.
The Court made various moves
that could be deemed liberal, but one area where this often was not true was in
the criminal justice area, including the treatment of aliens. For instance, Demore v.
Kim (5-4) upheld mandatory detention of immigrants (non-terrorists, but
the potential application to them is obvious) even if they were not given a
chance to show that they present a flight risk or danger to the community. This is a basic component of due process of
“persons,” as reflected by the spirit of the bail provision of the Eighth
Amendment. As is sometimes typical, the
Court also shaded the facts to support their claim … here suggesting Kim
admitted he was deportable, when he did not.
Also, as Justice Souter notes in his partial dissent, “The INS has never
argued that detaining Kim is necessary to guarantee his appearance for removal
proceedings or to protect anyone from danger in the meantime.” Thus, the INS
willingly eventually released Kim. The
true issue here is the breadth of power the federal government (in the
terrorist context, or as here, outside of it) wishes to have broad discretion
over. This leads to the sort of
arbitrary deprivation of liberty that the Due Process Clause of the Fifth and
Fourteenth Amendments is meant to stop … for all “persons,” including legal
residents.
In the latest installment of an
ongoing conservative battle, the Court held that a federal program that uses
interest earned from money lawyers hold in trust for their clients for legal
services for the poor is not an unconstitutional “takings” of their property [Brown
v. Legal Foundation of Washington (5-4)] This is a silly case since (1)
without the federal program, the interest wouldn’t be earned anyway – only by
combining the funds is money made and (2) it can be upheld as a legitimate
“tax” on lawyers toward helping to provide legal services for the poor. Justice Kennedy dissented separately
suggesting there was some First Amendment problem. Does this mean all public defender systems are ideological in
scope in some fashion, thus raising First Amendment problems? If so, the right
to a lawyer provides the “compelling interest” or perhaps an exception, to
override such concerns. This state
interest makes this a poor case for conservative Takings advocates.
State Farm v. Campbell (6-3,
the dissent was written by Justice Ginsburg, joined by Scalia and Thomas)
struck down a Utah jury’s $145 million punitive damage award on three key
grounds: the ratio of punitive to compensatory (actual damages as compared to
damages to send a message, to punish) of 145:1 was much too high [it suggested
single digit ratios were closer to the acceptable range]; state jury’s
shouldn’t usually concern themselves with out of state actions of the
defendants (a pro-federalism result and interstate matters is more a job for
Congress, not state juries); and the defendant’s wealth shouldn’t usually be a
factor. I do not understand the last
one, since clearly when sending a message, you need to factor in the wealth of
the guilty party. The other main
problem is that it is somewhat arbitrary for the courts, at least the federal
courts, to try to determine “fair” state punitive damage awards. It is a usual practice for courts to reduce
awards, but only recently has there been a move to have a type of “one size fit
all” national standard. On the other
hand, either as a type of “excessive fine” (Eighth Amendment) or as a simple
matter of “due process” in regards to property, some limits seem appropriate in
particularly egregious cases. There is
also the more radical notion that punitive damages are inherently arbitrary,
even if they are seen as an expression of the will of the people as expressed
by civil juries (raising Seventh Amendment issues). I’m sympathetic with this notion as well. Tricky subject.[9]
In one of the more troubling
cases of the term, the Court (5-4) upheld California’s three strikes laws, even when the
third strike resulting in twenty five and fifty year terms without parole
involved nonviolent property crimes involving a pair of golf clubs and a few
videotapes worth $150. One case
involved someone already ill from AIDS, so apparently the punishment would not
be for that long. The cases are Ewing v California and Lockyer v.
Andrade, taken in part to limit the ability of the lower federal courts to
take “habeas” appeals from state courts because their decisions allegedly
violate constitutional commands … Supreme Court precedent did not suggest such
punishments were “cruel and unusual,” so the appellate court was deemed to be
in error. On the other hand, the
minority did a pretty good job in showing that yes precedent did make such
crimes not proportionate to the crime.
Thus, the true effect is not only to uphold a particularly cruel
application of an already troubling law, but also to put lower federal courts
on guard that they shouldn’t be too concerned with possible violations of the
Constitution. All the same, the Supreme
Court could step in, in a somewhat arbitrary fashion, when it feels like doing
so.
Another troubling case
dealt with prisoner visitation privileges.
Overton v. Bazzetta unanimously upheld Michigan prison
regulations that broadly limited visitation rights. For instance, the Court noted: "The prohibition on
visitation by children as to whom the inmate no longer has parental rights is
simply a recognition by prison administrators of a status determination made in
other official proceedings." Also,
"the restriction on visitation for inmates with two substance-abuse
violations, a bar which may be removed after two years, serves the legitimate
goal of deterring the use of drugs and alcohol within the prisons." The
tone as well as an absence of dissent (the liberals concurred to suggest in
some other case they would protect the rights of prisoners more than the
majority would … apparently not seeing
one’s children is not that important to them) makes this especially
notable. Obviously, security, protection
of children, and other interests makes limitations on visitation legitimate. It
is quite different when the limitations are so broad. I’d compare it a different if related case by a lower court that
dealt with a couple not being able to see (and therefore marry) each other for
over a year, a result of the inmate touching his girlfriend’s butt …
illegitimate contact. The punishment
was deemed acceptable, the harm, trivial.
The Supreme Court was more
careful in death
penalty cases. Miller-El v.
Cockrell (8-1) (possible racial bias in the jury) and Wiggins v Smith
(7-2) (ineffective counsel in regards to failing to properly investigate
childhood trauma and adequately put it in front of the jury) was careful to
uphold procedural safeguards. The
potential reach to noncapital cases is notable, but risky to assume. Death remains different, even for the more
conservative Rehnquist Court. Justices
O’Connor and Ginsburg in particular noted their concern about the effectiveness
of counsel in death penalty cases … Smith suggests this might be a
continuing concern for the Court itself as well.
In a
somewhat surprising turn, the Supreme Court (6-3) upheld the application of the
Family and Medical Leave Act to the states; rather, individuals have a right to
sue the state to uphold its benefits because there is "congruence and
proportionality between the injury [gender discrimination] to be prevented or
remedied and the means [federally mandated family leave benefits] adopted to
that end." Nevada Department of Human Resources v. Hibbs is being
promoted by some as a sign of the moderation of the recent federalism
revolution, but this should be taken with a grain of salt. Gender (along with race) discrimination is
treated differently than past classes dealt by this line of cases such as age
or disability. Furthermore, the reason
why Justice Rehnquist (the granddaddy of this line of cases) joined the not too
surprising vote of Justice O’Connor might very well be to be able to write an
opinion that upheld the basic principles of the genre. The law, even in areas like gender where
higher scrutiny is supplied, was “remedial” [the dissents noted there was not
enough proof every state was guilty, so admittedly the test was arguably
weakly applied], not just a federal benefit.
It was narrow enough to fit its purpose, even though as a regulation of
commerce (partly relied on by Congress) or protection of equality from state
action (Section Five of the Fourteenth Amendment, relied on by the Court), I
join with the four justices who concurred separately that such a “congruence
and proportionality” test is usually unnecessary. The power supplied appears to be rather plenary or broadly stated. Such cases uphold basic principles, even
when they arguably are bending them.
This Supreme Court does this more than some might think … it makes it a
conservative court, but not as conservative as it at times is appeared or some
fear/want it to be.
The
Court’s concern for state power and dignity falls short in certain
contexts. One of these is when it
appears to interfere with the federal government’s ability to conduct foreign
policy. The Court a few years ago
unanimously struck down a Massachusetts’ policy not to do business with Burma
because of that country’s bad human rights record. This was seen as a violation of the federal government’s ability
to set foreign policy, but I didn’t understand the problem … is any
action by states, even relating to who it does business with, illegitimate when
it somehow touches upon foreign policy?
States clearly have to follow the terms of treaties and other national
agreements with foreign nations, but what if the policy is not a violation of
said terms? A bare majority in American Insurance
Association v Garamendi said the federal government’s policy has been
to encourage negotiation rather than use litigation to resolve issues related to
the actions of insurance companies in Europe during the Nazi era. California arguably has stricter
requirements for insurance companies doing business in the state, so was deemed
to have breached federal policy. The
majority’s reading of the facts are debatable … I’d be careful before removing
a state’s power to regulate.[10]
Race
Georgia
v Ashcroft (5-4) changed the rules necessary for racial districting,
“permitting consideration of overall minority influence in the political process
beyond the actual number of minority voters in a particularly district” (NYT),
which the dissent was sympathetic to but was wary about to some degree. An important, if technical, decision; on its
face, it also seems like a good one.
Another important decision, Desert Palace v
Costa unanimously held less obvious evidence of discrimination was
necessary to win in employer liability cases, including when discrimination is
but one reason for the harm suffered.
All the same, clearly the most
important cases are the twin cases dealing with race-based programs in Michigan
universities (Gratz v Bollinger) and law schools (Grutter v.
Bollinger), both defended as a way to promote diversity. Six justices felt the justification was an
acceptable one (Justice Rehnquist did not state an opinion; Justice Scalia and
Thomas sneered at it, the latter suggesting it was a matter of “aesthetics”
used to make the schools look respectable), but split on the means used. The use of an automatic twenty points
(university program) was deemed too much like a quota as well as not providing
individualized treatment (6-3, Justice Breyer joined the conservatives). On the other hand, the law school did not
have such hard to fast rules, and was acceptable to five justices. The fact the law school established certain
goals (“critical mass”) did not make it illegitimate, though it did to Justice
Kennedy, et. al. The dissenters in Gratz
along with critics of both programs felt this just meant you can use race, but
not in a too obvious fashion.
It seems obvious to me that diversity is a valid goal as is the desire to have all sorts of people at a university; likewise, sending a message of legitimacy is also quite important. One can compare the former to segregated schools … one problem of such institutions clearly was the separation of the races, the fact they did not all go to school together, providing an important way to understand each other and learn how to live together. The latter interest, expressed in part by the arguably arbitrary difference between the two opinions, has a pragmatic value. Furthermore, it is notable that the programs are not mandatory … states can choose not to use them. On the other hand, even if diversity is a clear value, race based programs are not necessary to carry it out. In fact, other criteria, such as wealth, location, political, and religious belief all can be used as well to provide a more diverse student body. The current system often benefits more well off minorities while leaving the especially needy ones left to dry. Likewise, if we do not solve our primary and secondary education problem, inequality in education will only continue.[11] An argument holds that programs like these are but Band-Aids, and incomplete ones at that. This is a valid point.
One strong critic
of the decisions summed up his disappointment: "The underlying
principle is that fairness requires proportional representation of races,
ethnic groups, and soon, inexorably required by the logic of the argument,
religions. It is a principle that requires constant monitoring and regulation
of the racial/ethnic/(and later, religious) market to bring about the proper
mix. As such, it is a principle at war with the non-discrimination principle,
which bars distributing burdens or benefits to any person based on race or
religion." A possible answer
would be: “I will support your stand opposing affirmative action for minority
students at the University of Michigan, its Law School, and every other
institution of higher learning in the United States, as soon as you fulfill your
responsibility to provide them with an equal opportunity to get
there.” Perhaps, it is best for the
Supreme Court to give the people themselves a right to decide the best path,
while being somewhat questioning about some ways it is done.
Finally, there is some suggestion that “elites” win out here. The same thing was said about the Lawrence
ruling (see below), but I just do not quite understand the claim. It is quite true that certain elites support
the path taken, but other elites support the opposite path. After all, anti-affirmative action sentiment
is often expressed by “legal and cultural elites” like the National Review. Furthermore, it is true that the affirmative
action cases to some degree (after all, it did strike down one of the two
programs) gave universities (run by elites?) some flexibility to choose
educational policy. So? Policy often is
set by elites, be it tax policy, foreign policy, or what have you. The “elites” are ultimately answerable to
the people, since legislatures give them their power and pass the laws that
regulate them. Certain states pass laws
banning racial preferences. Michigan can do so, if the opposition to such
preferences is as broad as some suggest.
Leaving things to democratic processes seems to be quite
anti-elitist. The opponents are not
really annoyed at the elitism, but with the opposition to their interpretation
of the Constitution.
Lawrence v. Texas [see blog entries
for 6/23/03 and 7/2/03] held (5-4) that the Due Process Clause[12]
to strike down a Texas law that bans homosexual
sodomy but was sympathetic to the equal protection argument used by Justice O’Connor’s
concurrence as well as those who argued the case. Furthermore, the heart of the case was an equal application
of past decisions involving privacy and choices dealing with intimate
association and private life (the opinion made it clear sex was not what
truly was at issue, but the protection of broader interests of which sex is
just a component), so that homosexuals also benefit from their reach. It does a little spin on history to argue
criminalization private consensual homosexual sodomy was not as traditional as
once thought, or “more complex” than suggested by Bowers v Hardwick,
which upheld a sodomy law (that applied to everyone, but only the homosexual
component was addressed) in 1986.[13] Changes in national and international norms
also suggests there is no longer (if there ever was) a broad belief that
homosexual sodomy violated “Judeo-Christian” values or was a threat to “Western
Civilization” as applied by Chief Justice’s concurrence in Bowers.
At any rate, past precedents
clearly protect the choices of consenting adult in comparable
situations, and the core reason homosexuals (or rather homosexual conduct)
are not similarly covered is moral opposition.
This is not enough to override fundamental rights of privacy, or in the
mind of Justice O’Connor, the equal protection problem of only burdening
homosexuals (in an arbitrary fashion at that).
This is a logical application of privacy precedents; if privacy involves
making choices involving private relationships, family life, non-procreative
sex, and so forth, homosexuals fall under its umbrella. The dissent complained that this took away
the moral choices of the people, and would logically lead to gay marriage,
decriminalization of fornication, masturbation, adultery, and consensual adult
incest. It ignored the fact that most
of this stuff (the inclusion of masturbation is not a joke, I think) is already
decriminalized in fact or practice. Marriage is different, in part because it
includes state involvement, partly because societal views of it are quite
different than general support of not criminalizing homosexual conduct. Incest involves issues of coercion and
family unity (interests other than moral disapproval), but honestly, if you
mean brother/sister incest, it is not generally a matter of the courts now
either. And, yes, private morality is
generally held to be a matter of individual religious and moral choice. This is news?
Justice Thomas dissented separately to note he found the law “silly” and would not vote for it if he was a legislator, but did not think the Constitution protects the concept that, in the opening words of the majority opinion:
"Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions."
[1]
The law involved here allows
for prosecution only where there is independent corroborating evidence of the
victim's allegations, but the passage of time still remains a problem.
[2]
Smith v. Doe involved a Connecticut law of the same sort that was challenged
on due process grounds. The Court
unanimously upheld the law, which is somewhat narrower in scope, but still did
not provide hearings to provide individuals a chance to prove they were not
dangerous. Justice Souter noted in a
separate opinion that there might be illegitimate applications, and they can be
dealt with when they arise. A right to
a hearing would be an important way to guard against such abuses before a
special burden is put on an individual … just what the Due Process Clause
demands.
[3]
Another copyright case involving trademarks was more speech friendly, so
arguably was the exception. Mosely v. Victoria Secret Catalogue Inc. unanimously held that a trademark
holder has to show some current harm (not just economic in nature), such as a
blending of identity, to obtain protection from the Federal Trademark Dilution
Act. Victor’s Little Secret, a small
adult novelty store, did not meet this test.
Thus, it is a win for commercial speech … as well as maybe for most
amusing case of the term. Another
narrow application of trademark law is discussed here.
[4]
The law had various components, but this extension as well as the related one
involving corporations is at the heart of the case.
[5]
One exception to the power to withhold distribution is radio … as long as radio
stations pay a small fee; songwriters do not have a right to block distribution
of their work. If the copyright
extension actually had something like this or a requirement that old works had
to be safeguarded (e.g. old films, many of which are falling into disrepair
because of old film stock), it would have arguably “promoted” the arts more. Also, if a take off of Lolita, spoken
in the voice of another character, would be seen as the added artistic effort
that it is (and, yes, the fact the original is fifty years old is relevant as
well), such extensions also would be less troubling. As it is, they just make
an already bad situation worse. See
also here.
[6]
Justice Thomas received some attention
by doing something he rarely does … asking questions in oral argument, in fact,
publicly noting his feelings that history makes cross burning particularly
reprehensible. His concurring opinion
made it clear that he felt cross burning per se could and should be
banned.
[7] RAV (where Justice Thomas joined the majority) was distinguished because there the law selectively burdened hateful expression against certain groups, while this law banned one type of conduct in all cases, no matter who is targeted or the message expressed. The problem is that this law also selectively chooses among different types of hate speech and does do against conduct that tends to target certain groups. In the process, other groups are not protected, arguably arbitrarily so. Why should a burning swastika be treated differently than a burning cross? It too has a sad history. Selectively fighting hate also tends to promote divisiveness and hate, and thus, counterproductive for that reason as well.
[8]
The dissenters didn’t disagree with the decision per se, but with the Court
deciding the matter in this particular case.
[9]
Another important case, Norfolk & Western Railway Co. v. Ayers (5-4)
split usual allies on the Court in its holding that workers who developed
asbestos related but noncancerous diseases can recover damages arising from
their “genuine and serious” fear of developing cancer. Justices Ginsburg, Stevens, Scalia, Souter,
and Thomas won out over Justices Kennedy, Rehnquist, O’Connor, and Breyer. Justice Kennedy in part worried that the
decision would deprive more deserving claimants of funds.
[10] A few cases did give states some freedom to act in federally regulated areas, in part because federal administrators were sympathetic to the programs involved. Kentucky Association of Health Plans v. Miller unanimously upheld Kentucky’s “any willing provider” law as not pre-empted by a federal law that regulates employer benefit plans. States, therefore, can have stricter limits than mandated by federal law. Pharmaceutical Research and Manufacturers of America v. Walsh (6-3) allowed a Maine policy regarding reducing prescription drug prices for uninsured state residents to continue, again, even though it might be seen as a breach of federal control of interstate commerce.
[11]
See here for a
discussion on educational reform … a much more fruitful discussion in the long
run.
[12] Others would use the Privileges and Immunities Clause or perhaps the Ninth Amendment and/or Tenth Amendment as the source of the basic liberties at issue. See also, Footnote 14 below.
[13]
Many of the laws were against non-procreative sex per se, not just “homosexual”
sodomy. Also, often only some types of
same sex sodomy were outlawed, such as only male on male anal sex. The right to contraceptives, for instance,
shows non-procreative sex no longer held to be a legitimate interest in many
cases. Only recently was there a move
to ban homosexual conduct per se.
Likewise, even if sodomy was prohibited, traditional practice was to bar
testimony from co-defendants. This made it quite hard to punish private
conduct, and concerns for privacy logically was one reason for such a rule.
[14]
It annoys me when judges say, “If I was a legislator …” because they are not,
so why should I care? Furthermore, when
judges say a law is “silly,” it is easy to forget that those who wrote them did
not think so. For instance,
Justice Stewart said the same thing about anti-contraceptive laws, but when
they were first passed, they were seemed to be quite important.
Also, it is notable that Justice Thomas dissented
separately, since he has said in the
past that the Privileges and Immunities Clause, or perhaps some other
constitutional command, protects unenumerated fundamental rights. Justice Scalia has a different view
(compare to Justice Thomas’ opinion) … it would be interesting to see how
different it truly might be. Or,
rather, what makes laws like this “silly but constitutional” and other
comparable ones, not.