Free Minds & Free Markets


Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Supreme Court Will Hear Case on the Excessive Fines Clause that Could End Up Curbing Asset Forfeiture Abuse

The case will decide whether the Excessive Fines Clause of the Eighth Amendment applies to the states. If so, it will also have to address how much it restricts asset forfeiture.

Asset forfeiture.Asset forfeiture.

Yesterday, the Supreme Court decided to consider Timbs v. Indiana, an important constitutional property rights case. As my co-blogger Eugene Volokh and Reason's Damon Root explain, the case will address the question of whether the Excessive Fines Clause of the Eighth Amendment applies against states, as well as the federal government. If the Supreme Court decides that the Clause does apply against the states, it will also have to consider exactly what kinds of fines qualify as "excessive" and to what extent the Clause applies to asset forfeitures, as well as more conventional fines.

Like Eugene and Damon, I believe the case for "incorporation" of the Clause against the states is extremely strong, and should command widespread agreement on the Court. The other issues are somewhat tougher. But there is still a strong argument for using the Clause to impose significant constraints on at least a wide range of asset forfeitures.

The Bill of Rights was originally intended to restrict only the federal government. But, as leading scholars on both right and left have come to recognize, the framers of the Fourteenth Amendment sought to apply the Bill of Rights against the states, as part of their more general effort to curb state governments' abusive mistreatment of minorities and others, most notably recently freed African-American slaves. As Eugene describes in some detail, the Supreme Court initially refused to apply the Bill of Rights to the states, even after the Fourteenth Amendment. But has gradually ruled that nearly all of the individual rights listed there are in fact incorporated. Multiple lower court decisions have ruled that the Third Amendment - one of the few provisions not yet addressed by the Supreme Court - should be incorporated, as well.

Rejecting incorporation of the Excessive Fines Clause would be an extreme anomaly at a time when the Court has already incorporated both the rest of the Eighth Amendment (which forbids "excessive bail" and "cruel and unusual punishment"), and also every other provision of the Bill of Rights that protects property rights. It would be especially strange to conclude that the Excessive Bail Clause is incorporated while the Excessive Fines Clause is not.

The Supreme Court's current test for determining what parts of the Bill of Rights to incorporate under the Due Process Clause of the Fourteenth Amendment was most recently restated in McDonald v. City of Chicago (2010), which incorporated the Second Amendment right to bear arms. It requires the court to consider whether the right in question is "fundamental to our scheme of ordered liberty." Protecting property rights against overreaching governments seeking to impose vastly disproportionate fines was clearly seen as a fundamental value by the Founders who drafted the Bill Rights, and by the framers and ratifiers of the Fourteenth Amendment. If you prefer a less originalist and more "living constitutionalist" approach to the test, it's worth noting the widespread opposition to asset forfeiture abuse today, which unites such disparate groups as the ACLU, the NAACP, libertarians, and many conservatives. The same result applies if you prefer the alternative approach to incorporation favored by Justice Clarence Thomas and many legal scholars: using the Privileges or Immunities Clause, rather than the Due Process Clause. As Thomas notes in his concurring opinion in McDonald, property rights are among the "privileges or immunities" of citizens that the Clause was intended to protect. Thomas is also a longtime critic of asset forfeiture abuse, and has repeteadly argued for stronger exercise of judicial review to curb it.

In sum, it would be very surprising if the Court ruled against incorporation. Indeed, I would be surprised if there were more than one or two votes against it, and a unanimous decision on that issue is entirely possible.

The more difficult questions raised by Timbs are the extent to which the Excessive Fine Clause covers asset forfeiture as well as ordinary criminal fines, and what counts as "excessive."

Asset forfeiture abuse is a serious problem that often victimizes innocent people and particularly harms the poor. For these reasons, among others, it has attracted widespread opposition on both right and left. In many states, owners have little opportunity to contest forfeiture, thereby enabling authorities to hold on to their seized property for months or even years, without so much as a hearing. In recent years, many states have enacted laws curbing asset forfeiture and a few have even abolished civil forfeiture altogether. Unfortunately, Attorney General Jeff Sessions last year reinstituted a federal policy that helps state and local law enforcement agencies circumvent state limitations on forfeiture and keep a hefty share of the profits for themselves. Sessions' actions drew bipartisan opposition, but reforms that passed the House of Representatives by unanimous vote have stalled in the Senate.

Asset forfeiture technically differs from a fine because the former involves seizure of specific property that was allegedly used in the course of committing a crime, rather than imposition of punishment against a perpetrator (which, if it takes the form of a fine, can be paid using any assets the defendant owns). Nonetheless, the Supreme Court has already ruled that at least some asset forfeitures are covered by the Clause in the 1998 case of United States v. Bajakajian. A narrow 5-4 majority consisting of the unusual coalition of Justice Thomas and four liberals struck down a criminal asset forfeiture on the grounds that the Clause covers forfeitures that are used as "punishment" for an "offense" and apply "only upon a person who has himself been convicted" of the offense in question. This reasoning seems to exclude in rem civil forfeitures, which, technically, are proceedings against the targeted property rather than the owner, and are often applied even against the possessions of owners who have not been convicted or even tried for any offense, simply on the theory that their property was used to commit a crime by someone else. In an opinion written by Justice Anthony Kennedy, the four conservative dissenters in Bajakajian argued that the majority's seeming exclusion of civil forfeitures was a mistake, and that such forfeitures should not "be left completely unchecked by the Constitution." It is not entirely clear whether Bajakajian really does exclude all civil forfeitures, or whether Thomas' opinion for the Court is best interpreted as holding that criminal forfeiture is covered, without making a definitive ruling on the civil kind.

While the defendant in Timbs was convicted of a crime, the state used civil forfeiture to seize his vehicle, rather than the criminal kind. This case, therefore, squarely presents the civil forfeiture issue. Five of the nine justices who participated in Bajakajian have since left the Court, and it is possible that a majority of today's Court might be willing to take a broader view of the Clause's coverage than the majority seemed to in the 1998 case. As a practical matter, the criminal-civil distinction is not a very compelling place to draw the line, because civil forfeitures surely are a kind of "fine" imposed to curb alleged participation in crime, notwithstanding the legal fiction that the proceeding targets property and not its owner.

The last big issue that the Court may have to address in Timbs is what counts as an "excessive" fine. In Bajakajian, the Court ruled that "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." This is far from a precise standard, and it often will not be easy to tell where mere ordinary disproportion ends, and the "gross" kind begins.

Timbs itself may be an easy case when it comes to "grossness." The state of Indiana seized the defendant's brand new Land Rover LR2, a vehicle worth about $42,000, even though the maximum fine for his actual offense was only $10,000 - a very large disparity. But if the Excessive Fines Clause is applied against the states, which prosecute the vast majority of criminal cases (and the lion's share of civil asset forfeitures, as well), federal courts are likely to have to deal with much closer cases in the future.

If courts decide to strike down only fines and forfeitures with very extreme disproportions between the seizure and the offense, then incorporation will only have a modest impact. In my view, that would be an unfortunate development, since the Clause forbids all "excessive" fines, not just those where the excessiveness is particularly egregious. But such a deferential posture could certainly arise, and indeed has when it comes to some other constitutional rights - including the right to bear arms - the last part of the Bill of Rights to be incorporated. The reach of the Clause would also be significantly constrained if the courts conclude it only applies to criminal forfeitures, not civil ones.

It would be unfortunate if incorporation of the Excessive Fines Clause ultimately had little impact on forfeiture.

Violations of the Excessive Fines Clause are not the constitutional flaw in current asset forfeiture practices. In my view, many forfeitures also violate the Due Process Clause of the Fourteenth Amendment, though the Supreme Court has yet to rule on that issue. It is also arguable that the civil forfeitures of innocent owners' property violate the Takings Clause of the Fifth Amendment, a position the Supreme Court rejected in 1996, but which should perhaps be reconsidered.

If, as is likely, the Supreme Court rules that the Excessive Fines Clause applies against state governments, it will not be the end of the longstanding legal battle over asset forfeitures. But it could potentially be a major step in the right direction.

NOTE: The defendant in Timbs is represented by the Institute for Justice, a leading public interest law firm with which I have a longstanding association. Among other things, I have worked with them on a number of other property rights cases. However, I have no involvement in this case. IJ's website has a lot of interesting information on the background of the case here.

UPDATE: In the initial version of this post, I mistakenly assumed that the Timbs case involves a criminal forfeiture rather than a civil one (as is actually the case). I apologize for this mistake (which I fortunately caught within 20 minutes of posting), and have now corrected it.

State Secretary of State Stuck with CLE Sanction

Today was a terrible, no-good, very bad day for Kris Kobach.

It's not every day that a federal court imposes Continuing Legal Education requirements as a sanction to attorneys in a case, but that is what happened in to Kansas Secretary of State Kris Kobach in Fish v. Kobach.

Fish concerned a challenge to provisions of the Kansas Safe and Fair Elections (SAFE) Act, in particular a requirement that individuals provide documentary proof of citizenship ("DPOC") when registering to vote. In an extensive opinion, Judge Julie Robinson concluded portions of the SAFE Act are unconstitutional and violate the National Voter Registration Act. In the process, Judge Robinson rejected some of the expert evidence submitted by Kobach in defense of the law and had harsh words for Kansas' Secretary of State. Rick Hasen has more on the case at Election Law Blog here.

Of particular note, Judge Robinson sanctioned SOS Kobach for failing to disclose relevant evidence prior to trial. She wrote:

The disclosure violations set forth above document a pattern and practice by Defendant of flaunting disclosure and discovery rules that are designed to prevent prejudice and surprise at trial. The Court ruled on each disclosure issue as it arose, but given the repeated instances involved, and the fact that Defendant resisted the Court's rulings by continuing to try to introduce such evidence after exclusion, the Court finds that further sanctions are appropriate under Rule 37(c)(1), which permits, in addition to exclusion of the evidence, "other appropriate sanctions." It is not clear to the Court whether Defendant repeatedly failed to meet his disclosure obligations intentionally or due to his unfamiliarity with the federal rules. Therefore, the Court finds that an additional sanction is appropriate in the form of Continuing Legal Education. Defendant chose to represent his own office in this matter, and as such, had a duty to familiarize himself with the governing rules of procedure, and to ensure as the lead attorney on this case that his discovery obligations were satisfied despite his many duties as a busy public servant. The Court therefore imposes a CLE requirement of 6 hours for the 2018-2019 reporting year in addition to any other CLE education required by his law license. These 6 additional hours must pertain to federal or Kansas civil rules of procedure or evidence. Defendant shall file a certification with this Court before the end of the reporting period on June 30, 2019, certifying that this CLE requirement has been met.

Such a sanction is quite remarkable -- particularly when imposed on a government official.

UPDATE: As noted in the comments, this is not the first time SOS Kobach has been sanctioned. Last year Kobach was fined for "misleading" a federal court. Earlier this year, Kobach was also held in contempt of court for failing to comply with a court order.

Illinois Court Strikes Down Ban on Carrying Guns Within 1000 Feet of School, But Is Apparently Open to Narrower Bans

From People v. Green, decided Thursday by the Illinois Appellate Court:

On November 20, 2012, around 3:15 p.m., Dan Svoboda, a teacher at Senn High School, observed a maroon van parked across the street from the school. Green was standing outside the van wearing a black security uniform. He appeared to be carrying a gun in a holster on his hip. Svoboda observed the gun twice over a 10-minute period.

Carter Carey, an assistant principal at Senn, also saw Green standing outside the van. Svoboda informed Carey that Green was carrying a gun. Carey then walked across the street to speak to Green, who had entered the passenger side of the van. Carey identified himself as the assistant principal of the school and stated that he had "some concerns." He asked Green whether he was a police officer, to which Green replied that he was a security guard. Carey then walked back across the street....

The trial court found Green guilty of ... possessing a loaded, accessible firearm in a vehicle ... and on a public street. [That statute was later struck down by the Illinois Supreme Court on Second Amendment grounds.-EV] Because the court found that Green committed these offenses within 1000 feet of a school, he was sentenced to one year of probation as a Class 3 felony offender....

On February 1, 2018, our supreme court decided People v. Chairez, where it found ... [law banning carrying] firearms within 1000 feet of a public park ... unconstitutional....

Our supreme court has adopted a two-step framework for analyzing a second amendment challenge. First, we must consider whether the restricted activity is protected by the second amendment. If we answer this question in the affirmative [as the state concedes in this case -EV], only then do we proceed to the second step of the inquiry, which involves applying "the appropriate level of scrutiny" and considering the strength of the state's justification for regulating or restricting the activity....

[The Illinois Supreme Court in Chairez] held that second amendment challenges were subject to intermediate scrutiny, but how "rigorously" to apply that scrutiny depends on "how much [the challenged restriction] affects the core second amendment right to armed selfdefense and whose right it affects." The court found that the 1000-foot firearm restriction surrounding public parks implicated the "core right to self-defense" and affected "the gun rights of the entire law-abiding population of Illinois." Accordingly, the court applied "elevated intermediate scrutiny" to the challenged regulation, holding that the State had the burden to show a "very-strong" public-interest justification for the regulation and a close fit between the law's means and its ends....

Here, just as in Chairez, the State's public-interest justification for the firearm restriction within 1000 feet of a school is to prevent crime and protect children, both of which the supreme court acknowledged are "important public concerns." The State argues that the 1000 foot ban is closely tailored to meet this goal, citing various statistics in support of its proposition. For example, the State points out that between 1988 and 1989, immediately before the UUW statute was first enacted, 8 elementary school students were killed and 43 people were injured in school shootings. And in the 1992-93 school year, after the UUW statute was enacted, 158 guns were confiscated on or near public school grounds in Chicago. This trend has not abated in recent years, as a Department of Justice study estimated that between 2007 and 2011 approximately 12,600 acts of gun violence occurred in schools in the United States.

Significantly, the supreme court rejected the relevance of this identical data in Chairez, stating "we see no direct correlation between the information the State provides and its assertion that a 1000-foot firearm ban around a public park protects children, as well as other vulnerable persons, from firearm violence. The State merely speculates that the proximity of firearms within 1000 feet threatens the health and safety of those in the public park." The State's arguments here are based on the same rationale rejected in Chairez.

To be sure, the data the State provides more directly relates to gun violence in schools, but the State still fails to show that the 1000-foot firearm ban mitigates that violence. The data does not reflect that the gun violence plaguing our schools was perpetrated within 1000 feet of the schools (as opposed to inside the schools themselves) or that the perpetrators of that violence were the law abiding adults whose conduct the statute regulates. Accordingly, the State has not shown a close fit between the restriction on gun possession within 1000 feet of a school and the protection of children. See id.

In arguing to the contrary, the State cites Heller, in which the Supreme Court stated that nothing in its opinion "should be taken to cast doubt on ... laws forbidding the carrying of firearms in sensitive places such as schools and government buildings," which it described as "presumptively lawful." But the State conflates regulations banning the carriage of weapons in certain sensitive places (e.g., schools and government buildings) with [the law involved here], which bans carriage near those places. This distinction is significant. A ban on firearms in specific places imposes less of a burden on the right to bear arms than one that extends to an area of approximately three city blocks around those same places. While a gun owner can simply choose not to enter locations deemed sensitive, it is manifestly more difficult to avoid areas within 1000 feet of those locations, particularly given that there is no notification where the restriction zone begins or ends. Indeed, the ban at issue here, just as the ban 1000 feet around public parks at issue in Chairez, effectively operates as a total ban on the carriage of weapons for self-defense outside the home in Chicago. As such, it runs afoul of Aguilar, in which the supreme court held that the right to carry firearms is particularly important when traveling outside the home.

For these reasons, we conclude that [the statutes] prohibiting possession of a firearm within 1000 feet of a school are facially unconstitutional....

Nonetheless, the court criticizes the new Illinois law that allows carrying by concealed carry license holders near a school (the law was enacted after the events in this case), and seems to suggest that a narrower zone around schools in which guns are forbidden—perhaps focused "on public ways adjacent to school property"—may be both wise and constitutional:

Our holding today is narrow in that it addresses only the pre-2015 version of the UUW statute. The current version of the statute excepts from its reach those who have a valid license under the Firearm Concealed Carry Act. Significantly, the Firearm Concealed Carry Act continues to prohibit the possession of firearms in "[a]ny building, real property, and parking area under the control of a public or private elementary or secondary school," even for those with valid licenses. At oral argument, counsel for Green did not take issue with the reasonableness of these prohibitions. And so the limited issue presented here is what burdens the legislature may impose on the rights of law-abiding citizens to bear arms on public ways adjacent to school property.

Illinois law, as it presently stands, contains no provisions that define a perimeter around sensitive places, like parks and schools, where even those authorized to carry weapons in public may not enter. If not addressed, the price of the right of law-abiding citizens to carry weapons in public will render it necessary to make fortresses out of places like schools, hospitals, churches, and public housing, with little positive effect on public safety. A bullet fired by an armed security guard can as easily kill a child, patient, or worshiper as one fired by a criminal. And although Green was lawfully authorized to carry a weapon, we can conceive of no reason why his right to do so should outweigh the State's interest in the safety of school children on public ways adjacent to school property, particularly at dismissal time.

It is imperative for the legislature to undertake a nuanced, evidence-based study of measures designed to protect our citizens from gun violence in the vicinity of sensitive public places without unnecessarily burdening the exercise of the second amendment rights of those lawfully authorized to carry weapons in public.

Indeed, the court seems to take the view that bans even around (and therefore certainly in) public housing and many other buildings, governmental and otherwise, would be constitutional—though not zones so large as to cover almost all of the city (or perhaps even much of the city?). For some differing views from other courts and a state attorney general about guns and public housing, see this post.

What it feels like to be that guy in line with Woody Allen

Episode 222 of the Cyberlaw Podcast

Our interview is with Megan Stifel, whose paper for Public Knowledge offers a new way of thinking about cybersecurity measures, drawing by analogy on the relative success of sustainability initiatives in spurring environmental consciousness. She holds up pretty well under my skeptical questioning.

In this week's news, Congress and the Executive branch continue to fight over the bleeding body of ZTE, which has already lost nearly 40% of its market value. The Commerce Department has extracted a demanding compliance and penalty package from the Chinese telecom equipment manufacturer. The Senate, meanwhile, has amended the NDAA to overturn the package and re-impose what amounts to a death penalty (see section 1727). Brian Egan and I dig into the Senate's language and conclude that it may do a lot less than the Senators think it does, and that may be the best news ZTE is going to get from Washington this year.

Judge Leon has approved the ATAMPERSANDamp;T-Time Warner merger. Gus Hurwitz puts the ruling in context. His lesson: next time, the Justice Department needs better evidence.

Brian gives us an update on what's not in the CFIUS reform bill now that the CFIUS reform bill is in the NDAA and on its way to adoption. I suggest that the bill is a symptom of a new Cool War, and the beginning of a long, slow process of breaking the commercial world back into competing blocs. Complete with mirror-imaging, as both China and DOD start publishing lists of the technologies they expect to use in the burgeoning competition.

Kaspersky is getting a lesson in Cool War bloc dynamics, as the EU Parliament trashes the company as a malicious actor and the company acts out, terminating its cybersecurity arrangements with EU institutions.

Megan Stifel and I explore what it means that Chinese hackers are apparently back to their old tricks – stealing competitive secrets for commercial advantage.

Given a choice between EFF and the EU, I come down on the EFF's side, at least when the EU is snuggling up to Big Copyright and forcing Internet companies to automatically scan customer uploads for copyright violations. This is bad news for users, of course, since the tools are never perfect, and the incentives will be to err on the side of preventing speech. But, really, EU, if you were wondering why you'll never have a vibrant tech startup scene, it's time to look in the mirror. This measure may sound as though it will be tough on YouTube, but it will be fatal to its smaller competitors.

But surely, you say, the owners of intellectual property will be constrained by the need to keep their consumers happy. Yeah, right. If you believe that, you might want to take a closer look at the astonishing surveillance system that IP owners have dreamed up in Spain. At least nothing so intrusive could be done in Europe, where GDPR has created a privacy utopia …

More Cool War casualties: US sanctions on Russia have hit a couple of companies that Silicon Valley thought of as friends and neighbors. This dividing-into-blocs business has some surprising costs. Brian, of course, wants to know how to square these sanctions with the president's view of Russia. I supply the answer (two, actually), but you'll have to listen to find out what they are.

Gus Hurwitz plugs his new privacy paper, which pantses privacy campaigners for hypocrisy.

Gus also comments on Apple's new USB restricted mode, which law enforcement support contractors say they've already defeated.

In the good news of the week, the Southern Poverty Law Center gets a comeuppance in the form of an unconditional apology and $3.4m libel settlement for including Maajid Nawaz in its nasty and irresponsible 2016 "Field Guide to Anti-Muslim Extremists." If you're keeping score at home, that's $3.37 million down, $429 million to go before SPLC's grotesquely swollen endowment is used up.

Speaking of comeuppances, I get mine for correcting Jennifer Quinn-Barabanov's pronunciation of cy près as "sigh pray." I'm a "see pray" guy. Alert listener Tim White decided to call up Brian Garner of Garner's Dictionary of Modern Legal Usage for a ruling. In a moment straight out of a Woody Allen film, Garner responds through an editor that "Professor Garner is editing the entries in Black's and Garner's Dictionary of Legal Usage to reflect that /sigh/ is the traditional anglicized pronunciation and that /see/ is a repatriated French pronunciation. So both pronunciations will be listed, but /sigh/ will be listed first as the preferred one." Short version: I'm condemned as an egregious grammar snob who doesn't know a repatriated French pronunciation when he sees one. I think I owe Jennifer Quinn-Barabanov an apology – and $3.37.

Episode 222

Megan Stifel and Stewart Baker

Download the 222nd Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Pocket Casts, Google Play, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Send your questions, comments, and suggestions for topics or interviewees to or leave a message at +1 202 862 5785. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

N.Y. Court Rejects Libel Lawsuit Based on Lawyer’s Post on Harvard Law School's SHARIAsource Blog

It all began with a jurisdictional dispute over an Egyptian divorce proceeding and a New York divorce proceeding.

From Magdy v. Awad, decided June 8 by a New York trial court:

Defendants [Abed Awad (Awad) and Awad & Khoury, LLP] represent [Plaintiff Mohamed] Magdy's wife, Dina Fouad (Fouad) in a pending divorce action against him entitled Fouad v Magdy (the matrimonial action). In August 2016, the trial court in the matrimonial action dismissed Fouad's complaint on the ground that Magdy had obtained an Egyptian divorce and Fouad appealed the decision. The First Department [of the Appellate Division of the New York courts] reversed and reinstated Fouad's complaint holding, inter alia, that the matrimonial action was commenced by Fouad before Magdy sought a revocable divorce under Egyptian law, and thus the New York trial court had jurisdiction .... Awad subsequently wrote an article commenting on the Appellate Division decision, entitled "NY Court Ruling Against a Muslim Man's Attempt to Unilaterally Divorce His Wife" (the article), which was published on [Harvard Law School's] ShariaSource blog on March 6, 2016....

Magdy sued, in relevant part, for libel, but the court rejected the claim:

[Magdy] alleges that the following statements are defamatory: "that [he] 'intended to circumvent the application of the more favorable financial rights [Fouad] would have under New York family law;' '[he] admitted he was having an extramarital affair;' '[he was] not interested in salvaging their marriage;' '[and he] convinced [Fouad] to return to Egypt.'" In his affidavit, Magdy complains that the Article goes into too much detail about his personal life and portrays him as an adulterer.

In reply, defendants argue that the proposed amended complaint should be dismissed because the statements Magdy cites from the article are not defamatory, but rather are true or non-actionable opinions.

A defamatory statement is "a false statement, which tends to expose the plaintiff to public contempt, hatred, ridicule, aversion or disgrace." To sustain a claim for defamation, the plaintiff must plead: "(1) a false statement that is (2) published to a third party (3) without privilege or authorization, and that (4) causes harm, unless the statement is one of the types of publications actionable regardless of harm." ...

Magdy principally asserts that the article's statement that he "admitted that he was having an extramarital affair" is defamatory. While he acknowledges that he had a relationship and a child with another woman, he disputes that it was extramarital. He maintains that the relationship occurred while he was "technically divorced from [Fouad], during a period of time [when] New York did recognize the Egyptian divorce as valid."

A review of defendants' uncontroverted submissions, however, demonstrates that the aforementioned statement in the article is substantially true, insofar as the factual recitation in the Appellate Division decision reflects that Magdy engaged in an extramarital affair. Further, Fouad's divorce action was dismissed in August 2016 because, among other things, Magdy had procured an Egyptian divorce. A review of the Family Court Order reflects that Magdy is paying child support for a child born on XX/XX/2017. Thus, it appears, as argued by defendants, and as Magdy does not dispute, that the child was conceived prior to the dismissal of the matrimonial action, i.e., at a time when the matrimonial judge had not yet addressed the validity of the Egyptian divorce. In view of these undisputed facts, the statement that Magdy was "not interested in salvaging the marriage" is likewise substantially true, and not defamatory.

There is no proof supporting plaintiff's claim that the statement that Magdy "convinced [Fouad] to return to Egypt" is defamatory. Nor does this Court find that the statement is defamatory on its face.... Furthermore, as recited in the Appellate Division decision and the article, the parties separated in July 2015, at which time the wife and the two children moved to Egypt. Even if a publication is not literally or technically true in all respects, the absolute defense [of truth] applies as long as the publication is substantially true.

Further, the allegation, that Magdy "intended to circumvent the application of the more favorable financial rights [Fouad] would have had under New York family law" is not defamatory, but expresses an opinion that is accompanied by the recitation of the facts upon which it is based. The relevant excerpt of the article states the following:

["]A talaq [religious divorce] decree in hand, [Magdy] filed a cross motion to dismiss [Fouad's] New York divorce action, [Magdy] intending to circumvent the application of the more favorable financial rights [Fouad] would have under New York family law. Egyptian law, for example, does not recognize the equitable distribution of marital assets or New York-style post-divorce alimony[."]

... [I]n considering the content of the publication as a whole, as well as the context in which the Article was written, i.e., as a legal commentary of the matrimonial action, it is sufficiently apparent that the aforementioned statement complained of by Magdy simply expresses the author's opinion based on the facts presented.

In view of the foregoing, none of the statements in the article that are cited by Magdy are defamatory ....

Sounds right to me.

The Year of the Punt, or At Least of the Bunt

Very narrow decisions -- or decisions not to decide -- in some more of the Supreme Court's most watched cases.

Masterpiece Cakeshop, as I wrote when it was decided, left almost all the big questions unanswered (even though it was expected to answer them). Today's two partisan gerrymandering opinions were remanded for further proceedings, with basically no substantive guidance from a Court majority. Today's Lozman v. Riviera-Beach was expected to resolve a hugely important question—can someone sue for retaliatory arrest if he there was probable cause to arrest him for some fairly petty crime, but there's lots of reason to think that he wouldn't have been arrested if it weren't for his past constitutionally protected speech?—but instead produced a very narrow opinion limited to the rare cases where plaintiff can show a municipal policy of going after him because of his speech.

Of course, some, both on the left and on the right, have argued that such narrow decisionmaking, or remand or dismissal on procedural grounds, are often a good idea, and that the Supreme Court should indeed often decide as little as possible. And perhaps these were indeed the right answers in these cases. But I just wanted to note that at least so far, a lot of the expected big bangs have fizzled (though of course some of the most-awaited high-profile cases, such as the "travel ban" case and the union agency fee case, still remain to be announced later this week or next).

Supreme Court Will Decide: Does the Excessive Fines Clause Apply to the States?

The Court has decided that almost all of the Bill of Rights applies to the states (with just a few exceptions that don't); now it will decide about the Excessive Fines Clause.

The Bill of Rights, as ratified in 1791, was generally understood as applying only to the federal government. (It begins with "Congress shall ...," and while that's in the First Amendment, the other amendments were also generally seen as limited to the federal government; indeed, the First Congress rejected Madison's proposal to include some limited restrictions on states.) The Fourteenth Amendment does limit state government, and thus also local governments; but ever since it was enacted, there has been a controversy about whether it "incorporates" the Bill of Rights against the states.

The Court initially said no, then slowly started saying yes to particular provisions (a process called "selective incorporation"). Most recently, in McDonald v. City of Chicago, the Court held that the Second Amendment applies to the states. Thus, right now,

  • all the Bill of Rights provisions in the first eight Amendments are incorporated against the states,
  • except three provisions that the Court has expressly said are not incorporated -- the Fifth Amendment's Grand Jury Clause, the requirement of jury unanimity that has been read into the Sixth Amendment's Criminal Jury Clause, and the Seventh Amendment, which provides for civil juries --
  • and two provisions on which the Court hasn't spoken: the Third Amendment, which limits the quartering of soldiers in people's homes, and the Eighth Amendment's Excessive Fines Clause.

The Institute for Justice (one of the public interest law firms that I most respect) petitioned the Court to decide whether the Excessive Fines Clause is incorporated, arguing that lower courts had disagreed sharply on the question. Such a split among lower courts is generally seen as a powerful reason for the U.S. Supreme Court to step in and resolve the matter. And today the Court agreed to hear the case, so we should have an answer by next Summer (unless the Year of the Punt gets renewed for a second season).

My Scott & Cyan Banister Amicus Brief Clinic students Tyler Hastings, Karen Leung, and Brigid Mahoney and I filed an amicus brief supporting the petition, on behalf of my colleague Beth Colgan -- one of the top Excessive Fines Clause scholars in the country -- and 16 other professors: Chiraag Bains, Kevin Bennardo, Bruce L. Benson, Eric Blumenson, Peter B. Edelman, Frank R. Edwards, Alexes Harris, Wesley G. Jennings, Wayne A. Logan, Cortney E. Lollar, Karin D. Martin, Mitali Nagrecha, Mary Pattillo, Alex R. Piquero, Bryan L. Sykes, and Ronald F. Wright. (The Clinic usually specializes in the First Amendment and related statutes, but this is a rare exception: a case too interesting to pass up.)

The brief deliberately didn't talk about the split, or the precedents supporting incorporation of the Clause; the IJ petition did an excellent job of that. Instead, it tried to explain why the Clause is practically important to the everyday lives of a vast number of Americans, since the importance of the constitutional question is itself one reason for the Court to agree to hear the case (see Sup. Ct. R. 10(c)).

Here is the meat of the brief, though with most footnotes omitted (you can see them in the PDF version). Recall, of course, that we were the lawyers for the signatories, and the views that the brief expresses are the signatories' and not necessarily the drafters'.

[* * *]

Summary of Argument

State and local governments have been levying greater and greater fines and relying heavily on forfeitures in recent years, often at the expense of people who can least afford to pay. Fines and forfeitures are punishments, but they can also make money for cities and states, which gives governments an incentive to increase these punishments to excessive levels.

The Framers recognized this danger, and included the Excessive Fines Clause in the Bill of Rights to prevent such abuses. But, partly because the Clause has not yet been incorporated against the states, many states and cities are indeed levying excessive fines and forfeitures.

Some fine the poor more often and in greater amounts, and throw those who cannot pay into what has been described as modern-day debtor's prisons. Forfeiture practices also hit financially vulnerable communities particularly hard. And because this is a financially profitable enterprise, it is often also politically profitable: many who bear the brunt of fines and forfeitures lack the political power to resist them. The government knows this, and also knows that raising broadly applicable taxes instead of raising revenue from fines and forfeitures would likely spur a political backlash.

But the right to be free from excessive fines and forfeitures[1] is a basic right of all Americans, recognized by the Framers as no less important than its Eighth Amendment siblings, the right to be free from cruel and unusual punishments and from excessive bail (as well as other fundamental rights, such as those secured by the First and Second Amendments). The Excessive Fines Clause and the protection against excessive fines should be recognized as a right secured by the federal Constitution against state transgressions, and as a bulwark against the states' financial and political incentives to increase fines and forfeitures more and more.


I. This case merits the Court's attention because unmanageable fines sharply affect the lives of many Americans

A. Excessive fines particularly harm poor Americans


Today's Unusual SCOTUS Lineup(s)

Masterpiece Cakeshop is not the only decision to surprise this term.

This morning the Supreme Court issued opinions in five argued cases.

Chavez-Mesa v. United States, concerning whether a judge provided an adequate explanation for a sentence reduction, split the Court 5-3. What's interesting about the case is the line-up it produced: Justice Breyer wrote for the Court, joined by the Chief Justice and Justices Thomas, Ginsburg, and Alito. Justice Kennedy dissented, joined by Justices Sotomayor and Kagan. Justice Gorsuch was recused. Not only did this case not divide the Court along liberal-conservative lines, it did not divide the Court along formalist-pragmatist lines either. This decision marks the seventeenth different line-up in an argued case thus far this term.

We saw another interesting line-up today in Gill v. Whitford, the big partisan gerrymandering case out of Wisconsin. Here, the Court was unanimous in concluding that the plaintiffs had failed to demonstrate standing. While there's nothing unusual about unanimous cases generally in the Supreme Court, it was quite unexpected in this particular case, which most observers predicted would divide the Court along ideological lines, 5-4. (See also Masterpiece Cakeshop for a decision that produced more unanimity than was expected.)

In Gill, the Chief Justice wrote the opinion for the Court finding no standing. This conclusion was unanimous. The Court also held that the plaintiffs could have another shot at trying to demonstrate standing on remand. The vote on this holding was 7-2. Justices Thomas and Gorsuch would have simply dismissed the case. Also, Justice Kagan wrote a separate opinion (joined by the Court's other liberal justices) expressing support for the argument that the proper plaintiffs would have standing to challenge partisan gerrymandering and that such a claim would be justiciable.

Also today, the Court decided another partisan gerrymandering case -- Benisek v. Lamone -- in which it was also able to avoid the underlying substance. In a brief per curiam opinion the Court concluded that the plaintiffs failed to demonstrate that the district court abused its discretion in denying a preliminary injunction.

There will be more Supreme Court opinions on Thursday.

Mistreating Library Book = Contempt of Court

If, that is, the book belongs to the Illinois Supreme Court library; Illinois Supreme Court Rule 33 provides,

The librarian of the library of the Supreme Court shall not permit any person except judges of the court to take any book from the library without the consent of the court or the chief justice. No books shall be marked or underlined, nor shall the pages of any book be folded down. Any person who offends against the provisions of this rule is in contempt of the Supreme Court.

Can Police Arrest Person Carrying Gun Without First Checking If He's Licensed?

No, says the Illinois Appellate Court.

From Thursday's Illinois Appellate Court decision in State v. Penister (nonprecedential):

Penister [argues that his arrest violated the Fourth Amendment because] his possession of a gun did not give Whitlock reason to believe he had committed any offense, because Whitlock had no grounds for concluding that Penister did not have a valid FOID [Firearms Owners' Identification] card. The State contends that Whitlock had probable cause to arrest Penister because the circumstances showed a substantial possibility of criminal activity....

The State argues that the discovery of the gun gave Whitlock probable cause to arrest Penister, reasoning that "the police were not required to ... determine whether he had a valid FOID card or a Conceal Carry Permit prior to effectuating his arrest." According to the State's reasoning, an officer has probable cause to arrest anyone engaged in an activity that requires a license, and the officer can wait until after the arrest to determine whether the arrested person has the required license. So any officer can wait outside any courtroom, arrest all persons who acted as attorneys, and find out after the arrests whether the persons had the requisite licenses to practice law. See 705 ILCS 205/1 (West 2016) (unlicensed practice of law punishable as contempt); People v. Flinn, 47 Ill. App. 3d 357, 361 (1977) ("arrest and imprisonment may be imposed for civil contempt of court"). If any officer sees a person driving a car, the officer has probable cause to arrest the driver, and the officer can find out later whether the arrested person has a license to drive.

The police here operated on an outdated assumption—possession of a firearm in and of itself is a crime. Until recently, that was true in the City of Chicago. But the law has shifted dramatically during this decade. Since the legislature has legalized gun possession and concealed carry, many citizens may now possess firearms provided they have followed the regulations.

Our legislature has made a policy decision that has legal consequences for how law enforcement officers must deal with possession of firearms. No longer can police assume that a person seen with a firearm is involved in criminal activity. Law enforcement officers must adjust their procedures so that law-abiding citizens do not face the undue burden of arrest for licensed activity.

Once Officer Whitlock discovered the gun in the glove compartment, he could have attempted to find out whether Penister or Rockett had a license for the gun. If he found evidence that they had no such license, he would have had probable cause to arrest. But if police can lawfully arrest Penister here, without making any effort to determine whether he had a license for the gun, everyone found with a firearm would be subject to arrest, no questions asked.

Firearm owners who might wish to carry a concealed weapon should find that the facts of this case give them some cause for alarm. Even a person who could quickly prove the legality of gun possession would still face onerous arrest.

Arrests can have significant legal and reputational consequences. (Imagine, for example, a citizen legally carrying a concealed weapon who is arrested during her morning commute, who then must explain to her supervisor why she arrived hours late for work.) The approach the State advocates here—arrest first, sort it out later—would cause fundamental and manifest injustice.

We must not naively overlook the racially disparate impacts of this kind of police procedure. Consider the police homicide of Philando Castile. Castile, stopped for a traffic violation, told the officer that he was carrying a handgun. The officer pulled out his own gun and screamed, "Don't pull it out." Castile responded, "I'm not pulling it out." The officer fired seven shots, killing Castile. The entire encounter—from the officer approaching Castile's car to the shooting—took less than a minute.

What led police here to guess that Penister did not have an FOID card or a concealed carry license? The Second Amendment protects all citizens—not just those who appear to police likely to possess an FOID card. Police, prosecutors and judges need to stay alert to potential discriminatory treatment in the arrest of Blacks and other minorities for FOID card and concealed carry violations.

We hold that Penister's possession of a gun did not constitute probable cause to arrest him, as the gun possession did not support an inference that any offense had occurred. See People v. Aguilar, 2013 IL 112116, 20 (the second amendment right to bear arms extends beyond the home).

"Madonna Wishes Herself a 'Happy Father's Day' as a #MomDad"

So reports Tyler O'Neil (PJMedia). Well, Madonna's most well-known son is said to have not quite had a father in the conventional sense .... Of course, look what happened to him.

Article Thumbnail

'Enforcing the Law' Doesn't Justify Separating Migrant Children from their Parents

The main justification for the Trump administration policy of forcibly separating immigrant children from their families is that it is supposedly mandated by law. This claim is both false on its own terms, and an inadequate defense even if it were true.

A protest against the Trump Administration's family-separation policy. G. Ronald Lopez/ZUMA Press/NewscomA protest against the Trump Administration's family-separation policy. G. Ronald Lopez/ZUMA Press/Newscom

The Trump administration recently adopted a "zero tolerance" policy under which undocumented immigrants apprehended by federal officials are forcibly separated from their children. In April and May alone, almost 2000 children were torn from their parents and detained separately, often under cruel conditions likely to cause trauma and inflict longterm developmental damage. Attorney General Jeff Sessions claims that separation of families is justified by the need to enforce the law, and even asserts that the administration's policy is supported by the Bible. I will leave the Biblical issues to theologians and cardinals, who have addressed them far better than I could. But Sessions' secular argument is no better than his religious one. There is no law requiring family separation at the border. And even if there was, that still would not be enough to justify the administration's cruel policy.

The federal law criminalizing "improper entry" by aliens does not require family separation. The law also provides for the use of civil penalties, as well as criminal ones. While it states that the application of civil penalties does not preclude application of criminal ones, it also does not compel federal prosecutors to pursue both. Until the administration's recent policy change, civil proceedings were in fact the usual approach in case of families with minor children, under both Democratic and Republican administrations. The use of civil proceedings generally does not require pretrial detention, and therefore obviates the need to detain either parents or children; some civil defendants were detained, nonetheless, but in facilities where families can stay together. The Trump administration, by contrast, has sometimes even forcibly separated children from migrants who have not violated any law, but instead have legally crossed the border to petition for asylum in the United States.

The Trump administration claims that their policy is required by the 1997 Flores court settlement. But that settlement in no way mandates family separation and detention of children away from their parents. To the contrary, it instructs federal officials to "place each detained minor in the least restrictive setting appropriate" and to release them to the custody of family or guardians "without unnecessary delay." The settlement also mandates that federal immigration officials must "treat all minors in its custody with dignity, respect and special concern for their particular vulnerability as minors." Detaining children under harsh conditions, separated from their parents, is pretty obviously not "the least restrictive setting" possible, and it most definitely doesn't qualify as treating children with "dignity, respect and special concern for their particular vulnerability."

Even if the law did clearly direct criminal prosecution combined with automatic family separation in pretrial detention, it does not follow that the administration had a legal duty to adopt a "zero tolerance" policy that prioritizes prosecution of this particular type of offense. In a world where the vast majority of adult Americans have violated federal criminal law at some point in their lives, and there are so many laws and offenders that prosecutors can only target a small fraction of them, federal officials inevitably have vast discretion in determining which offenses to pursue and to what degree. First-time illegal entry into the United States is a mere misdemeanor carrying a penalty (up to 6 months imprisonment or a small fine) lower than the penalty for possession of small amounts of marijuana (1 year). The relative penalties suggest that federal law considers the latter a more serious offense than the former. Yet not even hard-core drug warriors like Sessions urge the federal government to adopt a "zero tolerance" policy under which we routinely prosecute all small-time marijuana users. In practice, the feds only target a tiny fraction of them. And when they do, they don't separate their children from them, and detain the children under harsh conditions.

The administration's zero tolerance policy, therefore, is not mandated by law. They could easily exercise the discretion to avoid prosecution and family separation, as previous administrations have, and as the Trump administration itself does in the case of nearly all small-time marijuana users. Prioritizing this offense over nearly all others is a policy choice, not a legal requirement. It's a choice the president made, and one he could reverse at any time.

If enforcing the law really were the main concern of Trump and Sessions, they could easily address the issue by supporting legislation banning family separation at the border, except in cases of child abuse or similar exigency. Congressional Democrats have in fact proposed such a law, the Keep Families Together Act. If Trump were to endorse it, the bill could easily attract enough GOP support to get through Congress quickly, as many Republicans also oppose family separation and worry that the administration's policy might hurt their chances in the midterm elections. But Trump refuses to do that, because he instead prefers to use the plight of separated children as leverage to extract concessions from Congress on other immigration issues. He literally wants to hold the children as political hostages in order to push through his agenda of drastically reducing legal immigration, as well as illegal.

In sum, no law requires the administration's policy, and it is highly unlikely that legal considerations are the true motives for it. But even if the law really did mandate the family separation policy, and legal reform were politically infeasible, that still would not be enough to justify family separation.

Not every law is just. Some, at least, are so unjust that there is no moral obligation to obey them. For example, there is widespread agreement that civil rights activists were justified in violating segregation laws, and abolitionists in violating the Fugitive Slave Acts. Violation of these laws was just because they inflicted grave harm on innocent people based on morally irrelevant characteristics: race and ancestry. Much the same is true of many of our immigration laws. Most of the undocumented migrants entering the United States with their minor children are fleeing violence, abuse, oppression, dire poverty, or other terrible conditions. The laws that bar their entry are largely based on immutable conditions similar to race: who their parents were, or where they were born. The US may not be responsible for the awful conditions these people are fleeing. But if we forcibly deport them back to places where they are likely to face oppression, privation, and often even death, we become complicit in the wrongs they suffer. As philosopher Michael Huemer explains, the situation the situation is akin to one where we use force to prevent starving people from buying food they need to survive.

Most Americans routinely violate laws far less oppressive than segregation laws. For example, the vast majority violate speeding laws, and some 52% admit to using marijuana at some point in their lives. The point is not just many Americans violate these types of laws, but that they believe (rightly) that they commit no wrong in doing so, long as the speeding or marijuana use did not endanger innocent third parties. The same reasoning applies to undocumented migrant families fleeing oppression, except that their illegal actions are motivated by far greater need, and pose much less risk to third parties than speeding does.

Jeff Sessions contends that migrants fleeing horrible conditions should "apply lawfully [and] wait your turn." This admonition might have some validity if they actually had a realistic chance of gaining legal entry in the near future. In reality, the wait time for most potential immigrants who do not have very close relatives in the US is likely to be decades or even centuries. If they apply for asylum, they face a system that refuses to grant it even for many who are victims of horrific violence and oppression, and features Kafkaesque rules such as classifying performing slave labor for guerrillas as providing "material support" to terrorists (thereby making the escaped slave ineligible for asylum). Moreover, Sessions and his political allies have for years resisted all efforts to make legal entry into the United States easier. They have themselves to blame for creating the conditions under which many undocumented immigrants have no plausible moral obligation to obey the law.

Even in the case of otherwise just laws, there must be moral limits to the means used to enforce them. The child-separation policy crosses any reasonable line. It inflicts harm grossly disproportionate to any offense. And most of that harm is suffered by children - people themselves innocent of wrongdoing. Even if their parents acted wrongly in trying to enter the United States, the children had little choice in the matter.

Some try to justify the administration policy by pointing out that people convicted of crimes are often imprisoned in ways that keep them apart from their children. But, in such cases, the children are left in the custody of relatives or guardians chosen by the family, not housed in harsh detention facilities. In addition, it is extremely rare for first-time offenders charged with misdemeanors to be subjected to prolonged detention at all, or even to get prison sentences after conviction (as opposed to fines or probation). If the government started rounding up small-time marijuana users or violators of speeding laws, putting them into pretrial detention, and separating them from minor children who are then placed in confinement under cruel conditions, there would be an outcry. Few, if any, would seriously claim that the policy is justified because it strengthens enforcement of drug and traffic laws. Even most who believe that our marijuana laws and traffic laws are just would condemn such a cruel policy. The same logic applies to Trump's family separation policy at the border.

UPDATE: I have made some minor additions to this post.

More on Masterpiece Cakeshop, from Prof. Michael McConnell

Prof. Michael McConnell (Stanford), one of the leading American scholars of the Religion Clauses, wrote this when Masterpiece Cakeshop came down earlier this month, and I wanted to pass this along, especially since the Court is still considering whether to hear Arlene's Flowers, and other cases are percolating up as well:

The Supreme Court ... confounded all expectations, and decided the highly controversial Masterpiece Cakeshop case by a 7-2 vote. This is the case about a Colorado baker who, in accordance with his religious beliefs that marriage is properly confined to a man and a woman, declined to "design and create" a cake celebrating a same-sex wedding. The Court held that penalizing the baker for this refusal to violate his religious convictions violated the principle that the government "cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices." The Court emphasized the fact that the State of Colorado had permitted three other bakers to refuse to provide cakes that expressed sentiments opposed to same-sex marriage, condemning this disparity in treatment as demonstrating hostility to religious views.

In these days of intense culture conflict, the Supreme Court's 7-2 majority demonstrates that concern about hostility and intolerance toward religious views is not a right-wing distraction, as some people say, but a broadly held and fundamental part of our constitutional values. The Court is to be commended for transcending its political divisions and delivering that much-needed message. It bears mention that four of the last five decisions by the Court protecting religious freedom were by unanimous or 7-2 votes, all of them against the government and all of them reversing lower court decisions.

The price of a broad majority is typically a narrow—and often a vague—opinion, and Masterpiece Cakeshop is no exception. The majority opinion, by Justice Anthony Kennedy, scrupulously avoided expressing an opinion about similar cases that might arise in "other circumstances" in the future.

But no one should mistake the principle: If a state recognizes the right of "shopkeepers" to refuse service on the basis of secular principles, it cannot punish others who refuse service on the basis of religious principles. The case might be different if all bakers were required to bake all cakes expressing all ideas—but Colorado did not have such a rule. The constitutional principle recognized in this case is not of expansive freedom for religious exercise, but simply of neutrality. The principle is "narrow," but it is supremely important.

In a response to an e-mail query of mine, Prof. McConnell elaborated:

Enforcement of a genuine public accommodation law, such as a public utility law that requires the utility to serve all comers on a nondiscriminatory basis, would not violate the Free Exercise Clause as interpreted in Smith, because such a law is neutral and generally applicable. A law that allows some bakers to choose not to bake cakes contrary to conscience but requires others to do so, is not neutral or generally applicable, and warrants strict scrutiny.

If the Hobby Lobby Electric Corp. denied service to a household of devil worshipers, it would lose a free exercise case under Smith. But if the Social Justice Water Works were permitted to deny service to the Ku Klux Klan Country Club, Hobby Lobby Electric's case would be different. The state cannot allow non-religious people to follow their consciences but strictly enforce the law against religious people. That, I think, is the enduring legacy of Masterpiece.

If Prof. McConnell is right, and a state that allows bakers to refuse to write anti-gay messages must also allow bakers to refuse to provide cakes for same-sex weddings (or refuse to provide serve to Satanists), then Masterpiece will be influential indeed. After all, almost all American laws banning discrimination in most places of public accommodation let people refuse service on the basis of secular principles, when the refusal is based on disapproval of a person's nonreligious ideology. The laws generally ban discrimination based on race, religion, sex, and national origin, and in many states, counties, and cities based on sexual orientation. But very few ban discrimination against customers based on political beliefs. (I agree that some laws governing public utilities and a few other entities require them to serve everyone, with only a few exceptions; but the current debate is about the more common public accommodation discrimination laws, which only ban certain bases for discrimination.)

Caterers, for instance, are free to refuse to cater a Socialist's wedding, the birthday of an opponent of homosexuality, an environmentalist gathering, or a pro-gun-control event. That is true whether this refusal stems from their religious principles or their secular principles, and whether the would-be customer's Socialism, opposition to homosexuality, environmentalism, or support for gun control stems from the customer's religious beliefs or the customer's secular beliefs. But caterers are not free to refuse to cater a Catholic's wedding, or a same-sex wedding, or an interracial wedding (again, whether this refusal stems from their religious principles or their secular principles).

If Prof. McConnell's position is that, once a state decides not to ban discrimination against anti-gay customers (or, to take the other example, KKK customers), it must likewise allow refusal to supply same-sex weddings, then such refusals to supply same-sex weddings would be legal pretty much everywhere. And this logic wouldn't just be limited to expressive businesses (such as photographers, calligraphers, singers, or, in the view of some, wedding cake bakers), but would also apply to caterers, hotels, limousine drivers, and the like.

But I think that's not right as a matter of Free Exercise Clause precedent, which (at least as the Court interpreted it in Employment Division v. Smith) generally bans discrimination against religious practices. Treating discrimination based on a person's ideology differently from discrimination based on a person's sexual orientation is not discrimination against religion, even if these days refusals to provide goods and services for same-sex marriages tend to be religiously motivated.

When someone refuses to make a cake for a same-sex marriage, it may not be discrimination based on the sexual orientation of the buyer of the cake; the baker doesn't care about who places or pays for the order (it might well be a straight friend or family member). But a state may reasonably interpret it as discrimination based on the sexual orientation of one set of the ultimate users of the cake—the marrying couple, who are being discriminated against precisely because they are engaging in one of the defining characteristics of gays and lesbians, i.e., showing and pledging romantic love to a member of the same sex. (This is why we'd treat refusal to bake a cake for an interfaith wedding as religious discrimination even when the baker doesn't care about the religion of, say, the mother of the bride, who is ordering or paying for the cake.) On the other hand, when someone refuses to make a cake with an anti-gay message, or even refuses to make any cake for someone who he knows is anti-gay or will use it at anti-gay event, that is not discrimination based on the buyer's or users' sexual orientation or religion; the baker doesn't care about the religion of either the buyers or the users of the cake, but only about their beliefs about homosexuality, whether religious or secular.

On the facts of Masterpiece Cakeshop itself, there was evidence that the Colorado courts legally analyzed the refusal to bake the cake with an anti-gay message inconsistently with how they analyzed the refusal to bake the cake for the same-sex wedding; see this post for more details. But, as Justice Kagan and Breyer argued in their concurrence—I think correctly, when it comes to the Free Exercise Clause question—other states don't have to make the same mistake, and yet can still treat discrimination based on sexual orientation (again, the sexual orientation of the ultimate users of the cake) differently from discrimination based on ideological views about homosexuality.

Of course, that still leaves the Free Speech Clause question: Even if there's no discrimination against religious people in the enforcement of these antidiscrimination laws, when do the laws impermissibly compel speech? That is a complicated question, which has been discussed here and elsewhere in detail (see, e.g., here); lower courts have been facing it in many cases, and the Supreme Court may have to return to it. Here Prof. McConnell and I are speaking only about the discrimination-against-religion Free Exercise Clause question.

Just in Time for National Bourbon Day (June 14), a Bourbon Trademark Case

Crafted with love in the cellars of the Sixth Circuit.

National Bourbon Day is apparently June 14; and, perhaps or perhaps not entirely coincidentally, the Sixth Circuit yesterday released a bourbon trademark law opinion, Sazerac Brands, LLC v. Peristyle, LLC. It's written by Judge Jeffrey Sutton, who was recently interviewed in these very pages about his new book, and it begins thus:

Colonel Edmund Haynes Taylor, Jr., "the most remarkable man to enter the whiskey industry during the post-Civil War years," built the Old Taylor Distillery in 1887. Once the "most magnificent plant of its kind in Kentucky," the distillery fell into disrepair after the Colonel's death. Will Arvin and Wesley Murry sought to turn things around. In 2014, they formed Peristyle to purchase the property, renovate it, and eventually resume bourbon production there. Peristyle regularly referred to its location at "the Former Old Taylor Distillery" or "Old Taylor" during the renovation period.

That generated heartburn for the next player in our case, Sazerac, a company that bought the trademark rights to "Old Taylor" and "Colonel E.H. Taylor" in 2009. Sazerac objected to Peristyle's use of the Taylor name and sued Peristyle for infringement. Because Peristyle used the Old Taylor name descriptively and in good faith, it finds shelter under the Lanham Act's fair use defense. We affirm.

Read the short and pretty readable opinion for more. Thanks to How Appealing for the pointer, and InstaPundit for the information that yesterday was National Bourbon Day.

June 14, National Bourbon Day (also Flag Day), should not be confused with July 14, National Anti-Bourbon Day (in a different nation).

Religious Freedom and the Sanctity of the Confessional

The Florida Evidence Code apparently requires clergy to testify about confessions to them, if the penitent allows them to do so -- but Catholic doctrine forbids any such testimony, regardless of the penitent's wishes. Which should prevail?

To my knowledge, all American states have an evidentiary rule under which clergy can generally refuse to testify about confessions, if they believe such confessions to be confidential. (The confessions are often called "penitential communications," to stress that they need to be Catholic-style confessions.) But the Florida Evidence Code apparently treats this as primarily a right of the penitent; thus, if the penitent says she would like the clergy member to testify, the clergy member can be ordered to do so.

The Catholic Church, though, apparently takes a different view: It believes the clergy member cannot reveal things said in the confessional, regardless of whether the penitent wants them revealed. Here's how this played out in today's Florida Court of Appeals decision in Ronchi v. State.

In June 2017, Loren Burton was charged in a four-count information with committing sexual offenses against a minor. The charged offenses were alleged to have occurred when the alleged victim was seven years old and when she was thirteen years old. The record reflects that the criminal investigation of Burton commenced after the alleged victim, then seventeen years old, disclosed to her mother that she had been sexually abused by Burton.

In August 2017, the State filed a notice of intent to introduce child hearsay statements ... [under a Florida evidence rule that] statute permits the introduction of out-of-court statements made by a child victim with a physical, mental, emotional, or developmental age of sixteen or less that describe any act of sexual abuse against the child provided that, inter alia, the time, content, circumstances or the statement provide sufficient safeguards of reliability. Here, the State alleged that when the alleged victim was fifteen years old, she disclosed to Ronchi that Burton had sexually abused her.

Ronchi objected, arguing, among other things, that the Florida Religious Freedom Restoraction Act entitled him to an exemption from the usual duty to testify. And the court agreed, at least on the facts of this case:

FRFRA expressly provides that the government shall not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, unless the government demonstrates that the application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

A substantial burden on the free exercise of religion is one that either compels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires. In the instant case, the record establishes that if Ronchi complies with the State's demand that he testify as to his communications with the alleged victim during the Sacrament of Reconciliation, Ronchi would be forced to engage in conduct that is prohibited by the Catholic Church (and, indeed, would subject him to possible excommunication from the Church). Thus, the trial court's order can only be upheld if the State establishes that coercing Ronchi's testimony furthers a compelling governmental interest and is the least restrictive means to further that interest.

Here, it is undisputed that the State has a compelling governmental interest in prosecuting sex offenses perpetrated against children. However, we disagree with the State's contention that coercing Ronchi to testify regarding communications that occurred during the Sacrament of Reconciliation, in contravention of his sincerely held religious beliefs, would be the least restrictive means to further its compelling governmental interest of prosecuting Burton.

First, as the State acknowledges, the testimony of Ronchi would, at most, be corroborative evidence. There is no allegation that Ronchi was a witness to any sexual abuse. Second, this case does not involve a child victim who, because of his or her tender age, might be unable to adequately testify as to the alleged sexual abuse. The alleged victim in this case is now an adult, and there is nothing in the record that suggests that she would be unable to testify as to the relevant events. Third, ... the State could seek to have the alleged victim testify as to her purported prior disclosure of sexual abuse to Ronchi.

Because we conclude that the trial court's order contravenes FRFRA, we grant the petition and quash the trial court's order to the extent that it required Ronchi to "respond to the subpoena and ... be questioned about the existence of the confession, the identity of the penitent, and that the subject matter involved sexual abuse."

This reasoning might yield a different result, though, when the evidence really is necessary for the accurate resolution of the underlying prosecution (or even civil lawsuit). Some state clergy-penitent privilege statutes do by their terms provide an absolute right for the clergy to refuse to testify, regardless of what the penitent wants—but if the clergy can't prevail under that specific statute, and have to instead call on the state RFRA, then their RFRA right to a religious exemption can be overcome by a showing that requiring them to testify is the least restrictive means of serving a compelling government interest.

To be sure, some might argue that requiring a priest to testify isn't the least restrictive means of getting testimony, because it would fail to get the testimony: Catholic priests seem likely to be unwilling to break the confessional even if they are threatened with jail. I'm not sure how that argument would play out (and whether it would yield one result for priests of religions that are notoriously insistent on confidentiality and another for clergy that are less militant and thus perhaps more open to being swayed by the threat of jail). But in this case, the court didn't have to reach this complicated question, because the priest's testimony wasn't seen as important enough to the justice system.

Finally, some might ask: Given that we have a conflict between a state RFRA statute and state evidentiary statute (the general duty to testify, as modified by the relatively narrow Florida clergy-penitent privilege), why should RFRA prevail? The answer is that RFRAs are deliberately crafted, and deliberately enacted by legislatures, as potential exceptions to the whole body of the jurisdiction's law, including criminal laws, zoning laws, evidence laws, and more; courts likewise interpret them that way.


Get Reason's print or digital edition before it’s posted online