The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

On Thursday, Justice Kagan spoke to the Ninth Circuit Judicial Conference. She was careful to avoid talking about Dobbs directly, but she clearly alluded to the case. And, according to the Washington Post, she invoked the concept of "legitimacy" as defined by Casey. (Update: C-SPAN posted the video here.) That is, the Court's "legitimacy" is linked to public perception. Justice Kagan stated:

"I'm not talking about any particular decision or any particular series of decisions. But if, over time, the court loses all connection with the public and the public sentiment, that's a dangerous thing for democracy," Kagan said. "We have a court that does important things, and if that connection is lost, that's a dangerous thing for the democratic system as a whole." . . .

"Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kind of things that do not seem to people political or partisan, by not behaving as though we are just people with individual political or policy or social preferences," she said.

That was certainly the conception of legitimacy advanced in Casey, and (likely) drafted by Justice Souter. For three decades, Casey was precedent on precedent. But that is not the only conception of legitimacy.

The Dobbs Court emphatically repealed and replaced that notion of legitimacy. Now, legitimacy is defined by following written law, without regard to public perception. Linda Greenhouse's column laments that shift:

. . . Justice Alito actually had the gall to write that "we do not pretend to know how our political system or society will respond to today's decision." Polls conducted before the opinion's release showing that upward of two-thirds of Americans wanted to retain a right to abortion offered a hint and were perhaps what led to Justice Alito's self-righteous declaration: "We cannot allow our decisions to be affected by any extraneous influences such as concern about the public's reaction to our work."

Dobbs overruled Casey's undue burden framework, but also overruled the precedent on precedent. Justice Scalia would often joke that the Constitution is dead, dead, dead. We should say the same for Casey's precedent on precedent. It's dead, dead, dead.

I made this point in my recent Newsweek essay:

During oral argument, Justice Breyer worried that by overruling "a super case like" Roe, the people will "say, no, you're just political, you're just politicians." He warned that such politicization will "kill[] us as an American institution." Justice Sotomayor stated the issue more bluntly. She remarked that sponsors of the Mississippi law limiting abortion after 15 weeks supported it because of the "new Justices on the Supreme Court." Sotomayor asked, "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?" The Court's progressives were imploring the conservatives to avert a Souter-esque legitimacy crisis. Yet, these pleas went unanswered. . . .

This redefined conception of legitimacy upsets long-standing views about the Court. But more importantly, Dobbs compels a recalibration by the Court's critics. In the past, progressives repeatedly warned that overruling a precedent like Roe would undermine the Court's legitimacy. If Dobbs is any indication, these barbs will be met with a collective yawn.

The critics of Dobbs must recognize this new paradigm, regroup, and advance a new strategy.

This morning the U.S. Court of Appeals for the D.C. Circuit issued a decision that could make it more difficult for incoming presidential administrations to undo last-minute rules adopted by the outgoing administration.

In Humane Society of the United States v. Department of Agriculture (or HSUS v. USDA), a divided panel concluded that if a new regulation is finalized but has not been published in the Federal Register, it may not be rescinded without a new notice-and-comment rulemaking.

Judge Tatel wrote for the majority (joined by Judge Millett). His opinion begins:

At the culmination of a five-month rulemaking, the Department of Agriculture announced a final rule designed to protect show horses from abuse. As required by the Federal Register Act, the agency transmitted the signed rule to the Office of the Federal Register, which made it available for public inspection. But on the day President Trump took the oath of office, his Chief of Staff directed executive agencies to withdraw all pending rules. The question in this case is whether an agency must provide notice and an opportunity for comment when withdrawing a rule that has been filed for public inspection but not yet published in the Federal Register. We hold that it must.

And it concludes:

The APA demands procedural regularity both when an agency formulates new law and when it repeals the old. Although political transitions may provide a sound basis for a change in policy, they do not relieve agencies of their procedural obligations. Because a rule made available for public inspection prescribes law with legal consequences for regulated parties, the APA requires the agency to undertake notice and comment before repealing it.

Judge Rao dissented. Her opinion begins:

Across administrations and for many decades, Executive Branch agencies have exercised their discretion to withdraw rules before publication in the Federal Register—sometimes due to a presidential transition, but also in the ordinary course of rulemaking. In this case, the United States Department of Agriculture ("USDA") withdrew a rule after it was made available for "public inspection" at the Office of the Federal Register, but before it was published. The majority holds that this withdrawal was the "repeal" of a rule requiring notice and comment procedures because the agency's rule was prescribed at the moment of public inspection. But we have never assessed a rule's finality or the end of the rulemaking process from public inspection at the regulatory printing press. To the contrary, publication determines the adoption, finality, and effectiveness of a substantive rule.

By cutting off agency discretion at public inspection—a mere ministerial moment on the way to publication—the majority imposes a judicial burden on agency procedures that conflicts with this circuit's precedent, the statutory framework for rulemaking, and a longstanding regulation permitting withdrawals prior to publication.

I think Judge Rao has the better of the argument, but I doubt the full court will wish to consider this question en banc. The real question is whether the executive branch sees this question as important enough to seek certiorari. I would doubt that too, but we'll see. This case certainly implicates broader questions about the ability of the President to set policy priorities for the federal government, and those issued might interest some justices on the Court. Reversing this decision would be one way to help ensure elections have consequences.

[I'm working on a draft article called When Are Lies Constitutionally Protected?, and I thought I'd serialize it here, since I still have plenty of time to improve it; I'd love to hear your thoughts on it! (All the posts about it will go into this thread.)] [UPDATE: The final paper has now been published by the Knight Institute.]

If I'm right that the question here is one of comparative effectiveness of different truth-finding institutions, then this might bear on how any particular kind of false statement should be classified. Here, let's consider (though just briefly) lies in election campaigns; whole articles, of course, can and have been written in much more detail about this question.

Lies in election campaigns are in some respects especially dangerous, because they often happen shortly before the election, when there is little time to respond.[1] At the same time,

In a political campaign, a candidate's factual blunder is unlikely to escape the notice of, and correction by, the erring candidate's political opponent. The preferred First Amendment remedy of "more speech, not enforced silence," thus has special force.[2]

And what is true of factual blunders is likely true of deliberate falsehoods as well.[3]

The cases on the subject are split, but I'm tentatively inclined to agree with the recent state supreme court and federal appellate decisions that conclude that, on balance, allowing prosecutions for such lies is too dangerous. The Massachusetts Supreme Judicial Court's 2015 decision in Commonwealth v. Lucas is the most recent articulation of the argument:

Free Speech Lies and the First Amendment

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7/22/1937: The Senate voted down President Roosevelt's Court-Packing plan, 70-20.

Politics

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In the wake of Dobbs, the Democratic-controlled House is passing a flurry of bills to "codify" constitutional rights that are not really in jeopardy. Yesterday, I wrote about the Respect For Marriage Act, which would require a state to recognize same-sex marriages performed in another state. This bill passed with more than forty votes from Republicans. Today, the House passed The Right to Contraception Act. Here, only eight Republicans crossed over. Let's walk through the bill.

First, the bill creates a statutory right to access contraception and contraceptive. These terms are defined quote broadly:

(1) CONTRACEPTION.—The term ''contraception'' means an action taken to prevent pregnancy, including the use of contraceptives or fertility-awareness based methods, and sterilization procedures.

(2) CONTRACEPTIVE.—The term ''contraceptive'' means any device or medication used to prevent pregnancy, whether specifically used to prevent pregnancy or for other health needs, including all contraceptive products approved, cleared, or granted de novo classification by the Food and Drug Administration, such as oral contraceptives, long-acting reversible contraceptives, emergency contraceptives, internal and external condoms, injectables, vaginal barrier methods, transdermal patches, and vaginal rings, or other contraceptives.

During the Hobby Lobby litigation, many religious rights groups viewed certain forms of FDA-approved contraceptives, like Plan B and Ella, as abortifacients that can operate after the point of fertilization. As I read the bill, all of these forms of emergency contraception would be covered. Moreover, I wonder if the FDA could later redefine abortion pills as a form of contraceptive--after all they "prevent pregnancy" from continuing.

Second, the bill explains that both the health care provider and the patient have this statutory right:

A person has a statutory right under this Act to obtain contraceptives and to engage in contraception, and a health care provider has a corresponding right to provide contraceptives, contraception, and information related to contraception.

And the bill explains that federal and state governments cannot interfere with a health care provider's ability to provide contraception.

Nothing in this Act shall be construed to authorize any government to interfere with a health care provider's ability to provide contraceptives or information related to contraception or a patient's ability to obtain contraceptives or to engage in contraception.

How far does this bill go? If a state requires a prescription to obtain certain forms of contraception, would those laws be preempted? Could a state still grant religious hospitals the ability to opt-out of providing emergency contraception or sterilization? Or would that exemption be preempted? (Litigation is ongoing about sterilization procedures with respect to trans patients.)

Third, the bill also extends to providing contraception-related information.

(b) LIMITATIONS OR REQUIREMENTS.—The statutory rights specified in subsection (a) shall not be limited or otherwise infringed through any limitation or requirement that— (1) expressly, effectively, implicitly, or as implemented singles out the provision of contraceptives, contraception, or contraception-related information; health care providers who provide contraceptives, contraception, or contraception-related information; or facilities in which contraceptives, contraception, or contraception-related information are provided; and (2) impedes access to contraceptives, contraception, or contraception-related information.

I'm not entirely sure what this provision is getting at, but one thought: school sex-ed programs may be affected to the extent that some programs limit information about contraception at certain ages. Do kindergartners now have a statutory right to learn about the morning-after pill? There may also be some compelled speech issues here.

Fourth, the bill suggests that any laws burdening contraception would be reviewed with something like strict scrutiny. This language borrows from RFRA's "least-restrictive alternative" framework.

To defend against a claim that a limitation or requirement violates a health care provider's or patient's statutory rights under subsection (b), a party must establish, by clear and convincing evidence, that— (1) the limitation or requirement significantly advances access to contraceptives, contraception, and information related to contraception; and (2) access to contraceptives, contraception, and information related to contraception or the health of patients cannot be advanced by a less restrictive alternative measure or action.

Speaking of RFRA, fifth, this bill supersedes RFRA, and preempts all state laws!

Except as stated under subsection (b), this Act supersedes and applies to the law of the Federal Government and each State government, and the implementation of such law, whether statutory, common law, or otherwise, and whether adopted before or after the date of enactment of this Act, and neither the Federal Government nor any State government shall administer, implement, or enforce any law, rule, regulation, standard, or other provision having the force and effect of law that conflicts with any provision of this Act, notwithstanding any other provision of Federal law, including the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.).

I wonder if this bill would abrogate Hobby Lobby and related cases? I don't think a religious exemption to the ACA's contraceptive mandate based on RFRA could even work under this regime.

Sixth, this bill expressly waives sovereign immunity to permit suits against the states:

Neither a State that enforces or maintains, nor a government official (including a person described in section 6(c)) who is permitted to implement or enforce any limitation or requirement that violates section 4 shall be immune under the Tenth Amendment to the Constitution of the United States, the Eleventh Amendment to the Constitution of the United States, or any other source of law, from an action in a Federal or State court of competent jurisdiction challenging that limitation or requirement.

I'll come back to the sovereign immunity abrogation argument in a bit.

Seventh, and finally, the bill identifies three potential jurisdictional hooks:

(16) Congress has the authority to enact this Act to protect access to contraception pursuant to—

(A) its powers under the commerce clause of section 8 of article I of the Constitution of the United States;

(B) its powers under section 5 of the Fourteenth Amendment to the Constitution of the United States to enforce the provisions of section 1 of the Fourteenth Amendment; and

(C) its powers under the necessary and proper clause of section 8 of article I of the Constitution of the United States.

The bill includes two perfunctory findings about interstate commerce:

(14) People engage in interstate commerce to access contraception services.

(15) To provide contraception services, health care providers employ and obtain commercial services from doctors, nurses, and other personnel who engage in interstate commerce and travel across State lines.

Are these findings enough to pass the Lopez/Morrison line? They are light, and there is no clear demonstration of how dispensing contraception in a single state fits into these sparse findings. Nor is there any discussion of how this bill fits into some broader regulatory scheme.

Next, let's turn to sovereign immunity. Per Seminole Tribe, Congress cannot waive sovereign immunity under its Commerce Clause and Necessary and Proper Clause powers. But Congress could use its Section 5 enforcement powers to abrogate sovereign immunity. Is this bill, under Boerne v. Flores, a "congruent and proportional" means to remedy a violation of Section 1, as defined by the Supreme Court? The findings of the bill hint at cases like Griswold, Eisenstadt, and others. But the actual operation of the bill seems to go far beyond what those cases actually held. The fact that there may be some unenumerated right to access contraception, emanating from a penumbra, does not mean there is an unfettered right to access contraception without regard to prescriptions and other reasonable state regulations. I think this bill exceeds what the Supreme Court has identified with regard to a right of contraception. Moreover, this bill would eliminate a state's longstanding ability to regulate, consistent with Griswold, access to certain forms of emergency contraception. This bill would likely flunk the Boerne test.

And what happens if Griswold is overruled (which will never happen)? In that situation, the bill would clearly flunk the Boerne test, as a ban on contraception would not violate Section 1. I don't see how there can be any meaningful waiver of sovereign immunity here.

In yesterday's decision in Doe v. Dordt Univ., Judge C.J. Williams (N.D. Iowa) allowed much of Doe's unfair-Title-IX-discipline claim to go forward; the decision is long, but here's an excerpt to give the flavor of the dispute:

First, a reasonable jury could find that the undisputed evidence shows an articulable doubt as to the accuracy of proceeding's outcome based on the finding of sexual assault. "Courts should not second guess the disciplinary decisions that school administrators make." But Title IX precludes school administrators from rooting those disciplinary decisions in a gender-biased policies and procedures.

It is undisputed that A.D., a witness in Doe's proceeding, told Dean Taylor that she had been "made aware of the fact that [S.S.]," another witness, "ha[d] been blackmailing [another witness] involved in the investigation" and asked to meet with Dean Taylor. Doe also shared with investigators, including Dean Taylor, that he thought S.S. had an agenda against him and had instructed J.B. not to speak with him.

Doe stated that J.B. told him that S.S. threatened to report J.B.'s marijuana use if he did not testify against Doe in the Title IX investigation. Dean Taylor was also aware that S.S. had convinced J.B. to participate in the investigation after he initially did not want to.

Nevertheless, based on the undisputed evidence, the allegations of blackmail were not prioritized. Dean Taylor did not appear concerned with the blackmail reports, though he stated that blackmail might mean an innocent respondent, and did not recall taking any further steps to investigate the blackmail issue after the meeting with A.D. Further, the information about Doe's and A.D.'s disclosures were not included in the Investigative Summary or otherwise shared with the SLC for their consideration during deliberation. Additionally, because the investigators did not investigate the blackmail allegations and report their findings, Coordinator Wilson could not consider this information or mention it in his recommendations to the SLC.

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From Kallinen v. Newman, decided yesterday by Chief Judge Lee Rosenthal (S.D. Tex.) (consistently, I think, with other such recent cases, and I believe on balance correctly):

Individuals running for judicial offices in states that elect judges often use social media platforms, such as Facebook, as part of their campaigns. The issue in this case is whether that becomes a government-created public forum under the First Amendment. The defendant is a probate judge running for reelection, who used a Facebook page to promote his campaign. The plaintiff is a lawyer who posted three negative comments on the Facebook page. The judge deleted those comments and blocked the lawyer from viewing or posting on the Facebook page. The lawyer sued, alleging that the judge was liable for violating the lawyer's First Amendment rights. The judge has moved to dismiss….

Judge Newman's Facebook page was used to campaign for office, not to conduct the duties of that office. The page showed a "campaign promotion" photograph of Judge Newman, accompanied by the slogan, "Experience Matters." The page listed the contact email ReElectJudgeNewman@gmail.com, which is a private campaign address, not an official court email address. The page's subheading included Judge Newman's official title as the Judge of Probate Court No. 2, but that was also the title of the office to which he was seeking reelection. The page's subheading also included the description, "1 of 2 Jewish Probate Court Judges ever elected," which is "consistent with a desire to create a favorable impression of [Judge Newman] in the minds of [his] constituents," not a sign of an official, state-run page. Judge Newman's Facebook page was a reelection campaign social media page that did not bear the trappings of an official state-run account….

Free Speech

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From yesterday's decision by Chief Judge Elizabeth Wolford in U.S. v. Giacobbe (W.D.N.Y.):

Transparency and public access to judicial proceedings are of paramount importance. However, those interests are not without reasonable and narrowly tailored limits. "Judicial documents are subject at common law to a potent and fundamental presumptive right of public access that predates even the U.S. Constitution." …

[As to these papers], the Court finds that the presumption of public access is low. The Second Circuit has explained that the presumption of public access is at its peak where "applied to documents that play a central role in determining litigants' substantive rights— conduct at the heart of Article III." Conversely, "[w]here testimony or documents play only a negligible role in the performance of Article III duties, the weight of the presumption is low and amounts to little more than a prediction of public access absent a countervailing reason."

Here, the submission at issue is unrelated to the Court's resolution of the parties' substantive rights but is instead addressed to the collateral matter of the Court's inherent authority to supervise the conduct of members of its bar. Indeed, the submission was prompted not by any action taken by the parties, but by the Court's sua sponte Order. Under the circumstances, the common law presumption of public access is not strong.

Free Speech Right of Access Prosecutors

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From Judge Nancy Torresen's decision yesterday in McBreairty v. School Bd. of RSU22 (D. Me.), reviewing the ban (until Dec. 31, 2022) of Shawn McBreairty from "entering RSU 22 property for the purpose of attending any RSU 22 school-related meeting or function in person, or participating in any RSU 22 school-related meeting or function held electronically via video or audio":

Mr. McBreairty spoke at the School Board meeting on October 20, 2021. Mr. McBreairty discussed an RSU 22 teacher's reading list and the availability of certain books in RSU 22 school libraries, and he read a passage from one book—The Bluest Eye by Toni Morrison—that was on the shelves of the high school library. It appears from the video of this meeting that Mr. McBreairty ran over his allotted three minutes of speaking time but was permitted by the Chair to continue speaking and wrap up his comments.

Mr. McBreairty then spoke at the School Board's November 2021 meeting. In his public comment, he raised concerns about the academic readiness of RSU 22 students, and he recounted an earlier private meeting he had attended with the Chair and several RSU 22 administrators about various concerns he had about school practices. He also discussed the School Board's failure to respond to a follow-up email he had sent them and referred to phone calls he had had with the Chair and another School Board member about his concerns.

He ran over his speaking time, and the Chair asked him to finish up his statement. Mr. McBreairty concluded by requesting that the Chair (Defendant Miller) resign. On the video, as Mr. McBreairty continues to speak, several voices can be heard telling him that he is out of time and out of order, and Mr. McBreairty, after continuing to speak more loudly for several seconds, sits down.

At the School Board meeting on December 15, 2021, Mr. McBreairty again spoke during the public comment period. At this meeting, Mr. McBreairty again voiced his concerns about several school-related issues, including the books in the RSU 22 school libraries, and urged parents to unenroll their children from the district's schools. He told the School Board that he would be submitting a list of books that he believed would be appropriate for school-aged children, and he then began reading from one of the books.

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My book on racial classification's official publication date was Tuesday, and it's already garnered several reviews and I have appeared on a bunch of podcasts. So if you want to listen in on what all the cool kids are talking about…

Reviews

Review by Goldwater Institute President Tim Sandefur for the Objective Standard

Review by Prof. Bill Jacobson, Legal Insurrection

Review by Ed Whelan, National Review

Podcasts

The Remnant, with Jonah Goldberg

American Institute for Economic Research

CSPI Podcast with Richard Hanania

Essential Liberty with Bob Zadek

First Things Podcast with Mark Bauerlein

Institutionalized with Charles Lehman and Aaron Sibarium

Washington Outsider Report with Irina Tsukerman

I wish I could tell you I had a favorite, the *one* podcast to listen to, but I have really been blessed with excellent hosts, who each took the interviews in different directions depending on their interests and the natural flow of conversation.

[I'm working on a draft article called When Are Lies Constitutionally Protected?, and I thought I'd serialize it here, since I still have plenty of time to improve it; I'd love to hear your thoughts on it! I began with a brief discussion of constitutionally unprotected lies, and turn here to constitutionally protected ones. (All the posts about it will go into this thread.)] [UPDATE: The final paper has now been published by the Knight Institute.]

Keeping some kinds of lies—especially those about the government, about history, and about science—unpunishable is especially valuable given the frequent difficulty of drawing the line between opinion and factual assertions, exacerbated by the human tendency to draw that line based on our own attitudes towards the merits of the speech. This difficulty has been evident throughout the history of attempts to regulate alleged "fake news."

Consider, for instance, United States v. Cooper, one of the Sedition Act of 1798 cases. Cooper was convicted of false and malicious statements based essentially on these passages in a leaflet:

Nor were we yet … threatened [in 1797], under [President Adams'] auspices, with the existence of a standing army. Our credit was not yet reduced so low as to borrow money at eight per cent. in time of peace ….

Mr. Adams had not yet … interfered, as president of the United States, to influence the decisions of a court of justice—a stretch of authority which the monarch of Great Britain would have shrunk from—an interference without precedent, against law and against mercy. This melancholy case of Jonathan Robbins, a native citizen of America, forcibly impressed by the British, and delivered up, with the advice of Mr. Adams, to the mock trial of a British court-martial, had not yet astonished the republican citizens of this free country; a case too little known, but of which the people ought to be fully apprised, before the election, and they shall be.

Lies!, said Justice Chase to the jury (and the jury through its verdict agreed): a "scandalous and malicious libel," containing three "false" elements: The charge related to the nation's credit was supposedly false because the late 1790s weren't really a "time of peace." The condemnation of the president's conduct in the Jonathan Robbins matter was supposedly false because the president was required by treaty to hand Robbins over. And the "standing army" statement was supposedly false because (Justice Chase reasoned) the army couldn't be "standing" given that, in accordance with the Constitution, its expenses could only be authorized for two years.

Free Speech Lies and the First Amendment

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7/21/1824: Justice Stanley Matthews's birthday.

Today the Respect for Marriage Act passed the House by an unexpectedly large margin. And there is movement afoot to see if the bill will garner ten Republican votes to break a Senate filibuster. Ilya addressed the bill here. I'd like to add five more thoughts.

First, one of the most effective and pervasive criticisms of Dobbs is that Obergefell is next. If this bill passes, that argument largely goes away. Granted, the bill does not actually require a state to issue a gay marriage license--only that a state must recognize a gay marriage performed out of state. As a result, gay couples might have to obtain licenses from other states. But that burden is minimal. Indeed, it would be fairly simple to apply for a marriage license out of state, and the ceremony can be performed over Zoom.

Second, the fact that this bill passed the House by such a wide margin illustrates why the Obergefell-is-next argument never worked: there is no national movement to reverse gay marriage. Unlike Roe and Casey, Obergefell was largely accepted without a backlash. Now, there is more than 70% support for gay marriage. There is no march on Washington to reverse Obergefell, like there has been for abortion. Justice Alito was correct in saying this issue has been settled. Obergefell has proven workable in every regard. On the plus side for conservatives, enacting this bill would undermine the non-stop attacks on Dobbs. I'm sure leader McConnell recognizes this fact: passing this bill reduces the need for Court "reform."

Third, so far I've presumed that Section 3 of the bill is constitutional. Is it? The bill provides, in part:

"(a) In General.—No person acting under color of State law may deny—

"(1) full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals; or

"(2) a right or claim arising from such a marriage on the basis that such marriage would not be recognized under the law of that State on the basis of the sex, race, ethnicity, or national origin of those individuals.

This provision can be tested in one of two ways. First, a state actor could decline to give recognition to a marriage license issued from out of state. That action would trigger a suit by the couple whose marriage was not recognized, or by the United States Attorney General. But that state official would be going rogue. He would not receive qualified immunity--his actions violate clearly established law. And a judge could hold him in contempt if he flouts a court order. The second path is more likely, a state would sue the United States, arguing that Section 3 is unconstitutional. Ring up one more United States v. Texas. Still, at present, every state is required to recognize same-sex marriage licenses under Obergefell. Standing would have to be creative. That is, the federal law inflicts some injury on the state that goes above and beyond what the Supreme Court required.

I have no interest in weighing in on the Full Faith and Credit debate, with Steve Sachs on one side and Steve Sanders on the other side. The Full Faith and Credit Clause is like the right to travel: an aspect on the Constitution on which there are few actual experts, but on which many people will suddenly profess expertise. I have no clue what the answer is here.

Instead, fourth, I want to turn to Section 5 of the Fourteenth Amendment. Now, the bill did not invoke Congress's enforcement powers. The bill is expressly couched in terms of the Full Faith & Credit Clause. But could Congress have relied on Section 5 here? The analysis is a bit involved. Walk with me.

I agree with Ilya that the bill would be valid with regard to interracial marriage. Here, Congress could claim that it is enforcing Loving v. Virginia--and to be on the safe side, the Equal Protection component of that case, as Dobbs cast doubt on the substantive due process component. But the bill also refers to denying recognition on the "basis of the sex," not on the "basis of sexual orientation." Hello Bostock. According to Justice Gorsuch, as well as Chief Justice Roberts, it is impossible to discriminate against a person on the basis of sexual orientation without also discriminating against that person on the basis of sex. Now, Bostock was not a constitutional ruling. Here, Justice Gorsuch was interpreting a statute based on decades of non-textualist precedents by Justice Brennan and his ilk.

It is possible that Gorsuch and the Chief Justice would view the Equal Protection Clause in the same fashion as Title VII. If so, Justice O'Connor's Equal Protection in Lawrence v. Texas would be correct, albeit for very different reasons. Indeed, all discrimination on the basis of sexual orientation, and presumably gender identity, would be subject to the same heightened intermediate scrutiny employed in United States v. Virginia. To date, the Court has not gone along with that analysis. And I'm not sure that a text-and-history analysis of the Fourteenth Amendment could bear such a conclusion. But that argument is viable.

Fifth, is the Respect for Marriage Act an intrusion on federalism? Or, stated differently, is it a "proper" exercise of federal power? I'll take Windsor as the starting point of the analysis. Think way, way back to 2013 when we still cared what Justice Kennedy thought. (Those were confusing times.) The Windsor decision explained that the Defense of Marriage Act was infected by unconstitutional animus (remember animus!?). And those who enacted the bill sought to deny dignity (remember dignity?!) to gay and lesbian couples. Here, Justice Kennedy invoked the line of cases that stretched from Romer to Cleburne to Moreno (remember Moreno!?). That dignity-denying-animus violated the Equal Protection component of the Fifth Amendment, or something like that. The specifics were never very important to Justice Kennedy. (Randy and I removed Windsor from the 4th edition of the casebook, and the 2nd edition of 100 Cases, as its vitality is quite low.)

Back to the Future. The Respect for Marriage Act would (under the Kennedy guise) not be infected by unconstitutional animus. Rather, the bill would preserve the dignity afforded by marriage licenses for same-sex couples. Thus, I do not see any animus-problems here. But there are real federalism issues at play. Still, the bill critically does not require states to issue the licenses, it only concerns recognition.

My thoughts here, as always, are tentative.

In my last post, I covered some potential federalism issues raised by the Respect for Marriage Act, which seems to protect same-sex marriage in the event the Supreme Court overrules Obergefell v. Hodges. Among other things, I cited the work of Prof. Steve Sanders of Indiana University, a leading academic expert on same-sex marriage and the Full Faith and Credit Clause.

After reading my post, Steve indicated he largely agreed with my analysis, and sent me the following comment, which he has authorized me to reprint here. I have reprinted Steve's comment unaltered, except for a couple clarifications I have put in brackets. Steve's piece is in the blockquote. Everything else in the post is my own writing. Here is Steve's comment:

The conventional scholarly wisdom is that the Article IV Full Faith and Credit Clause doesn't, on its own, compel interstate recognition of marriages, because at the end of the day, a state's definition of marriage is just an expression of statutory policy, and the Supreme Court has long said that FF&C does not mean states are obligated to defer to the policy ideas of other states. I have pushed back on that conventional wisdom, as you noted [in my original post]. But what's key is that the FF&CC also contains a grant of power to Congress to prescribe by statute the "effect" of one state's "acts" in other states.

Is there some cost to federalism in the Respect for Marriage Act? Sure. But the FF&CC was intended as a unifying device, not a states-rights provision. And as a policy matter, the cost is far outweighed by the chaos and injustice that would be caused by allowing one state to nullify another state's existing legal marriage. Aside from the appalling human costs, there are federalism implications to that as well. The Respect for Marriage Act basically says, "You are required to give effect to a legal relationship validly created under another state's law. This is one country, one where people move around all the time. You can't treat their marriage license like a worthless piece of foreign currency."

In his famous article on the Full Faith and Credit Clause, Justice [Robert] Jackson argued that "[w]here there is a choice," the Clause should be used to "meet the needs of an expanding national society for a modern system of administering, inexpensively and expeditiously, a more certain justice." Doing so was important to "certainty and order."

In another related area of family law, child custody, federal law passed pursuant to the FF&CC already imposes certain requirements and restrictions on states to prevent "parental kidnapping" and relitigation of custody in another state.

It's often forgotten that the federal DOMA [the 1996 Defense of Marriage Act], in addition to forbidding federal recognition of same-sex marriages, also included the following section: "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."

That was basically the mirror image of the new provision in the Respect for Marriage Act. DOMA purported to allow states to deny recognition; the new law requires them to give recognition. I don't think anyone seriously questioned Congress's power in DOMA to prescribe the "effect" of full faith and credit in this way, but it never became an issue because it was basically superfluous. It was generally accepted that states already had the inherent power to deny recognition to marriages of which they disapproved.

One thing that's a little unclear is whether this language is intended to protect parent-child relationships that arise through SSM. If two women are married, one gives birth and the other is the second legal parent, is the non-biological mother's parental status protected by this law? Arguably it's a "right or claim arising from" the marriage, so I hope that's the understanding courts would give it, but the new law could be more clear.

I think Steve's points above are well-taken. While states may not be required to recognize out of state marriages by virtue of the FFC Clause taken alone, there is a much stronger case that Congress can use its powers under the Clause to require them to do so. If it cannot, that would - as Steve notes - also call into doubt existing federal statutes requiring states to defer to other states' child custody laws, lest they open the door to "kidnapping" and repeated relitigation of custody issues.

I think Steve is also right that Section 3 of the Respect for Marriage Act is less clear on the issue of whether states are required to recognize the parental rights of same-sex couples married out of state. Probably the best interpretation of the Act is that they are (also for the reason Steve says). But it's an issue that might end up getting litigated if the Act gets enacted in its current form.

On Monday, the Fifth Circuit decided an interesting Miranda case, allowing admission of a suspect's unwarned statements. And Judge Jones provided an even more interesting concurring opinion, suggesting that voluntary statements should be admitted in situations where it was debatable whether the Miranda rules were applicable. Judge Jones makes a compelling cost-benefit argument against suppressing statements in such circumstances, and I hope that her approach in followed in future cases.

Here are the facts, as recounted in the decision: A lone police officer performed a traffic stop on Braylon Coulter in the middle of the night. Having been given reason to suspect that Coulter, who revealed an aggravated robbery conviction, had a gun, the officer handcuffed him and asked where it was. Coulter answered, and the officer's partner arrived later to find a .40 caliber pistol and .37 ounces of marijuana in Coulter's backpack between the front seats of the van he drove. Before Coulter divulged that information, the officer did not provide Miranda warnings. The admissibility of Coulter's unwarned statements therefore depended on whether he was "in custody" as contemplated by Miranda at the time he offered them.

The Fifth Circuit held that a reasonable person in Coulter's position would not have thought that he was in custody for Miranda purposes. Moreover, the officer questioned Coulter in an environment that was not tantamount to a station house interrogation as contemplated by Miranda. As a result, the Fifth Circuit (in a 2-1 decision authored by Judge Jones) held that all of Coulter's unwarned statements were admissible.

Judge Jones went on, however, to file a concurring opinion to her own majority opinion. She argued that, where the issue of Miranda compliance was debatable, it would be appropriate to weigh the costs and benefits of suppressing a voluntary statement:

The panel is deeply divided on the application of the "custody" test. Under such circumstances, it seems to me, we ought to recall that "[t]he Miranda rules are prophylactic rules that the Court found to be necessary to protect the Fifth Amendment right against compelled self-incrimination." Vega v. Tekoh, 597 U.S. __, __, 2022 WL 2251304, *8 (June 23, 2022). Moreover, "when [the Supreme] Court creates a prophylactic rule to protect a constitutional right, the relevant 'reasoning' is the weighing of the rule's benefits against its costs." Montejo v. Louisiana, 556 U.S. 778, 793 (2009). The Miranda rule is therefore "justified only by reference to its prophylactic purpose, . . . and applies only where its benefits outweigh its costs[.]" Maryland v. Shatzer, 559 U.S. 98, 106 (2010) (internal quotation marks and citations omitted) …. When three judges cannot agree on whether a suspect in a traffic stop is "in custody," then we ought to consider the costs and benefits of suppressing incriminatory statements.

Judge Jones then went on to conclude that, in cases such as this one, the cost-benefit calculation tips decidedly against suppressing a voluntary statement. She explained that "the costs of suppressing Coulter's unwarned statements would be substantial, namely, hindering the prosecution of a convicted felon who voluntarily admitted to possessing a firearm and drugs." She also noted that "the videotape of this entire encounter compellingly shows there was no improper compulsion or restraint."

What about adopting a flat rule that police must always give Miranda warnings when they handcuff someone? Judge Jones explained that "[o]fficers might be put to the choice of ensuring their own safety or conducting routine investigations. One potential price of premature Mirandizing would be to require broader vehicle searches, and thus broader invasions of privacy, because officers would likely lack voluntary admissions from suspects. Prematurely requiring Miranda warnings during traffic stops would also inhibit questioning that could assist in time-sensitive investigations, e.g., for kidnapping victims or terrorists."

Judge Jones concluded that "suppressing Coulter's unwarned statements under these circumstances would also yield no meaningful societal or judicial benefits. '[U]nlike unreasonable searches under the Fourth Amendment or actual violations of the Due Process Clause or the Self-Incrimination Clause, there is, with respect to mere failures to warn, nothing to deter.' United States v. Patane, 542 U.S. 630, 642 (2004) (plurality opinion) (emphasis added). Here, under applicable law, there was nothing to deter and therefore no justification for suppressing Coulter's un-Mirandized statements."

I think Judge Jones' concurrence is very persuasive. As I have discussed at length in my various articles on Miranda (the most recent of which can be found here), that decision imposes significant costs of law enforcement. In cases such as this one, where a suspect's statements are not, in fact, compelled and the only issue is one of Miranda compliance in a debatable situation, it is hard to see the justification for suppressing a suspect's statements. I hope that Judge Jones' concurring opinion attracts wide attention and is followed in future cases.

From the motion for a preliminary injunction in Frazier v. Prince George's County (D. Md.), filed yesterday by lawyers at Civil Rights Corps, the Institute for Constitutional Advocacy & Protection at Georgetown Law, and Wilmer Cutler Pickering Hale and Dorr LLP (note that these are of course just the plaintiffs' allegations):

A presumptively innocent person may not be jailed prior to trial unless a "judicial officer finds that no condition or combination of conditions" of release will reasonably protect the community and ensure that the person will return to court. This guarantees that pretrial liberty remains "the norm," and detention while awaiting trial a "carefully limited exception."

Yet every night in Prince George's County, hundreds of people sit in jail in violation of this constitutional command. None of these people have been convicted of the crimes of which they are accused. No judicial officer has found that detaining these people prior to trial is necessary to reasonably ensure community safety or their return to court. Indeed, in each case, a judicial officer has found that the person can safely be released on some conditions.

These people remain jailed because Prince George's County District and Circuit Court judges abdicate their legal duty to set bail, and delegate it instead to unaccountable, non-judicial officials within the County Department of Corrections. These officials then decide whether, when, and on what conditions a person will be released while awaiting trial. The officials delay that decision for weeks or months, during which time the person languishes in purgatorial detention. In many cases, the officials ultimately decide—behind closed doors, and according to their own arbitrary criteria unrelated to community safety or flight risk—that, despite the authorization or order of a court, they will not release the person. Due process does not permit detention under these circumstances….

Due Process Bail

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In November 2020, a 2-1 Eleventh Circuit panel decision in Otto v. City of Boca Raton concluded:

Boca Raton and Palm Beach County prohibit therapists from engaging in counseling or any therapy with a goal of changing a minor's sexual orientation, reducing a minor's sexual or romantic attractions (at least to others of the same gender or sex), or changing a minor's gender identity or expression—though support and assistance to a person undergoing gender transition is specifically permitted. These restrictions apply even to purely speech-based therapy…. We understand and appreciate that the therapy is highly controversial. But the First Amendment has no carveout for controversial speech. We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny.

(See Jonathan Adler's post on the case.) Today, the Eleventh Circuit denied en banc rehearing, with several judges writing to concur or to dissent on that point; I'm slammed right now and can't quickly summarize or excerpt the opinions (which take up 110 pages), but I thought I'd link to them for the benefit of readers who are interested in looking through them.

Free Speech

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