Tag: First Amendment

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Law

Supreme Court finds narrow ground in cake shop case

On Monday, a majority of the Supreme Court sided with a bakery in an appeal that backed the owner’s refusal to create a wedding cake for a same-sex couple because of his religious opposition to their marriage.

My first reaction upon hearing the news was to conclude that a majority of the Court had ruled that the Constitution protects discrimination.

The appeal required the justices to reconcile the obligation of the law to protect the rights of gay people who wish to marry and the right of everyone to exercise freedom of religion guaranteed by the First Amendment.

I wondered how Justice Kennedy, who wrote the majority opinion and who authored a 2015 ruling that upheld the right of same-sex couples to marry, could have backed the bakery’s owner.

But that’s not what happened exactly.

The majority sided with the owner after finding that a state commission charged with reviewing the owner’s contention that creating a cake for a same-sex wedding would contravene his belief that “God [intends that marriage] should be the union of one man and one woman” had abandoned its neutrality.

A couple walks into a bakery

The dispute began in 2012, when Charlie Craig and Dave Mullins entered Masterpiece Cakeshop, a bakery in Lakewood, which forms part of metropolitan Denver. The couple planned to marry in Massachusetts (at the time, Colorado did not recognize same-sex marriages) and then hold a reception in the Mile High City.

Craig and Mullins told Jack Phillips, the shop’s owner, of their interest in ordering a cake for “our wedding.” Phillips, a devout Christian, replied that he does not create cakes for same-sex weddings, but that he would sell them birthday cakes, cookies or brownies. “I just don’t make cakes for same-sex weddings,” he said.

Phillips reiterated his stance the next day on the phone to Craig’s mother, who had called to ask why he declined to serve her son. He explained that to create a cake for an event that celebrates “something that directly goes against the teachings of the Bible” would constitute his endorsing and participating in the ceremony. Philips also noted that Colorado law (at that time) did not recognize same-sex marriage.

The law in Colorado

Colorado law bars businesses from refusing to serve anyone on the basis of their sexual orientation or marital status. Someone who feels their rights have been violated can file a complaint with the Colorado Civil Rights Division, a state agency that will investigate the claim.

If the agency concludes that the claim has merit, it forwards the dispute to the Colorado Civil Rights Commission, a seven-member body that can refer the dispute to an administrative law judge for a hearing. Decisions by the administrative law judges can be appealed to the full commission, which then holds a public hearing before voting on the case.  The law gives the commission the authority to order a business to cease and desist a practice deemed to be discriminatory.

In August 2012, Craig and Mullins filed a complaint against Phillips with the civil rights division, which concluded, after investigating the matter, that Phillips had refused to sell cakes to a series of same-sex couples and referred the case to the commission.

The commission referred the case to an administrative law judge, who ruled in favor of Craig and Mullins after finding that the state’s anti-discrimination law is a “valid and neutral law of general applicability” that did not violate Phillips’ right to the free exercise of his religion.

Phillips appealed the ruling to the commission, which affirmed the judge’s ruling, and then to the state’s court of appeals, which upheld it as well. He appealed to the U.S. Supreme Court after the state supreme court declined to hear the case.

A narrow ground

Justice Kennedy noted that clash between state law, which protects gay people like it protects others in acquiring whatever products or services they choose, and the claim by Phillips that creating a cake for the couple would have required him to use his skills as an artist to make an expressive statement that would contravene his sincerely held religious beliefs.

“Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” wrote Kennedy. “For that reason, the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.”

“At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms  of  expression,” he added.

Still, Phillips was entitled to “neutral and respectful consideration of his claims” that the majority found was lacking.  Instead, the civil rights commission’s handling of the case showed “some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection,” Justice Kennedy wrote.

At a meeting of the commission’s seven members to consider the case, one commissioner suggested that Phillips remained free to believe what he believes “but cannot act on his beliefs ‘if he decides to do business in the state,’” noted Justice Kennedy.

At a meeting of the commission about six week later, another commissioner went further, saying that using religion to “justify discrimination… is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

The comment, which no other member of the commission objected to, “is inappropriate for a commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation,” Justice Kennedy wrote.

The majority also noted that on at least three occasions the commission upheld the right of bakers to refuse to create cakes with messages “that conveyed disapproval of same-sex marriage.”

Though in the case of Phillips the commission ruled that any message on the cake would be attributed to Craig and Mullins and not to Phillips, “the commission did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism,” Kennedy noted.

As such, the commission’s treatment of Phillips’ case “violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint,” said Justice Kennedy. Because Phillips “was entitled to a neutral decision maker,” the commission’s order must be set aside.

Still, Kennedy suggested that the Court may side with same-sex couples in future disputes that raise similar facts.

“The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market,” he cautioned.

In a dissent, Justice Ginsburg, joined by Justice Sotomayor, said she would have affirmed the state’s ruling in favor of Craig and Mullins. The record does “not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decision-making entities considering this case justify reversing the judgment below,” she wrote.

Justice Thomas, joined by Justice Gorsuch, wrote separately to focus on the baker’s free-speech rights. “Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are ‘weddings’ and suggest that they should be celebrated—the precise message he believes his faith forbids,” Thomas said.

Reaction to the ruling

Writing at Scotusblog, Elizabeth Clark, a professor of law at Brigham Young University, predicted that by denying the claims of partisans on both sides of the case, “the decision may open up a space for a more thoughtful examination of the interaction of LGBTQ rights and religious freedom, both of which reflect deeply felt worldviews and both of which offer strong dignity, equality and liberty claims.”

Professor Michael Dorf of Cornell Law school focused on what the ruling doesn’t do. “[T]he stated rationale for the ruling in Masterpiece doesn’t wash,” he wrote. “At best, it is a masterpiece of ducking the hard questions.”

In the Times, Linda Greenhouse concluded that “the religious right didn’t get what it wanted from this case, and we have Justice Kennedy to thank for that. He found a way for two gay men to lose a case without setting back the cause of gay equality for which he has earned his place in history.”

Over at Slate, Dalia Lithwick noted the confusion (such as my own) that greeted the ruling, which she says focuses on the tenor with which tribunals resolve disputes. “No wonder the headline writers were confused,” she writes. “To the extent Masterpiece Cakeshop resolved the issue it was granted to take on—whether or not the dignitary interests of religious dissenters can override civil rights and public-accommodations laws—the rule that emerged is simply that we must speak civilly toward one another. The merits? They can wait for another day.”

The American Civil Liberties Union welcomed parts of the ruling that the group said reaffirm legal protections for gay people.

At Masterpiece Cake shop, phones rang off the hook following the ruling. Phillips referred reporters looking for comment to his lawyers.

Outside the shop, Marie Sautter Damm and her husband Richard Damm ate brownies. “It’s not about being anti-gay,” she told the Denver Post. “I have friends and church members that are gay. People should have their religious rights. Too long in my life I’ve been keeping my mouth shut – but no more. I don’t have to agree with you for you to have your own rights.”

Craig told CNN that the ruling affirms that businesses can choose what they sell to people, “they just can’t choose who to sell it to.”

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Law

The Supreme Court seems likely to side with Trinity Lutheran Church

I wrote recently about an appeal to the U.S. Supreme Court by Trinity Lutheran Church of Columbia, Missouri, which has accused the state of violating the First Amendment by disqualifying the church from receiving public funds to resurface a playground at a preschool and daycare center that it operates.

The court heard oral argument of the appeal on April 19. Based on the justice’s questions, a majority appears inclined to side with Trinity Lutheran. As Amy Howe at Scotusblog notes, “The end result could be an important ruling on the disbursement of funds by state and local governments to religious institutions.”

Justice Ginsburg, who together with Justice Sotomayor seemed most skeptical of Trinity Lutheran’s argument, asked David Cortman, who argued on behalf of the church, why the appeal differs from rulings by the court “that the Framers didn’t want tax money imposed to pay for building or maintaining churches or church property.”

There’s a difference between funding religious activities and funding secular activities of religious organizations, replied Cortman. But, Justice Sotomayor noted, the playground is part of the ministry of the church. “How do you separate its secular function from its religious function?” she asked.

“The way the court always has,” said Cortman, who noted that even though the motivation for operating the preschool “is a religious motivation, that doesn’t mean that every activity that occurs there happens to be religious.”

Justice Breyer asked Cortman whether Missouri, which says that its constitution prevents the state from distributing funds to a church, has ever said the constitution “prevents the state from giving grants or from spending money on police protection for churches.”

The state hasn’t said that, responded Cortman.

Justices Breyer and Ginsburg, noting that a decision a week earlier by the governor of Missouri to reverse the state’s policy on giving grants to religious organizations, asked whether the reversal mooted the appeal.

No, responded Cortman, calling the change “temporary” and noting that the state could “return to its old ways.”

James Layton, who argued on behalf of the state, told the justices that Missouri’s ban on funds to churches dates to 1820 and is modeled on Thomas Jefferson’s Virginia Statute for Religious Freedom.

Layton said the appeal parallels a ruling by the Court in Locke v. Davey, a 2004 case in which the court upheld a decision by Washington State to exclude from eligibility for scholarship aid students who pursue degrees in devotional theology. In that case, the state cited its constitution, which prohibits use of public funds to aid religious instruction.

“But this is quite different than Locke, because this is a status-based statute,” Justice Kennedy noted.

Justice Alito returned to the question raised by Justice Breyer. “So if you have a synagogue that is at high risk for an attack by an anti-Semitic group or a mosque that is considered to be at high risk for attack by an anti-Muslim group, would the Missouri constitution permit the erection of bollards like we have around the court here?” he asked.

“The answer traditionally would be no,” Layton replied, saying that state money could not be used to erect a “physical addition” to a church or synagogue.

So why can the state provide police protection or fire protection, Justice Kagan asked. In that case, the state is “providing a service,” said Layton. “And the service is not being provided solely for the benefit of the church” but for the benefit of public safety.

Justice Breyer continued. “Does the Constitution of the United States permit a state or a city to say, we give everybody in this city police protection but not churches?”

It does not, Layton replied.

“If it does permit a law that pays money out of the treasury for the health of the children in the church, school, or even going to church, how does it permit Missouri to deny money to the same place for helping children not fall in the playground, cut their knees, get tetanus, break a leg, et cetera?” Justice Breyer continued.

“The difference is that the establishment concerns that motivate Missouri’s policy do not apply in the police and fire context but they apply here,” Layton replied.

Chief Justice Roberts noted that Locke distinguished “between assistance for devotional, theological education and scholarship and others.”

But this case raises “more serious problems” than Locke, replied Layton. “It is a direct payment to a church.”

“Still the question,” said Justice Kagan, “is whether some people can be disentitled from applying to that program and from receiving money if they are qualified based on other completely nonreligious attributes, and they’re disqualified solely because they are a religious institution doing religious things…. and you’re still saying, well, no, you – you can’t get the money.”

Justice Roberts continued. “What if you had a program at the state capitol. You had tours for school groups, and you had someone who… coordinated, tied it into the social studies program; school groups can come in, but no religious schools.”

The state does have tours, noted Layton, who added that the tours “do not require the state to be entangled in any way with the church and its ministry.”

Plus, Layton added, “the church gets points [in the community] for telling people in the community that the state paid for this improvement to their church.”

But “you could say the same thing,” replied Roberts. “That the church is delighted that is has fire protection.”

“So long as the money is granted based on neutral criteria that are faithfully applied, I don’t know that you can draw a distinction between a program that’s open to everybody and a selective program,” said Justice Alito.

But a grant of funds for playground resurfacing, responded Layton, “is a publicly visible manifest demonstration of state endorsement.”

“It’s a clear burden of a constitutional right…  because people of a certain religious status are being prevented from competing in the same way everybody else is for a neutral benefit,” responded Justice Kagan, who seemed over the course of the argument to swing toward siding with Trinity Lutheran.

“Here we have… a direct payment to a church,” Layton reiterated.

Justice Sotomayor, perhaps sensing the majority’s inclination to side with Trinity Lutheran on the merits of the case, returned to the possibility that the governor’s reversal mooted the appeal.

“If we have no adversity hasn’t this case become mooted?” she asked.

But under Missouri law, a taxpayer could sue the state for allegedly violating its constitution, Layton responded.

Justice Gorsuch returned to the line of questions about tour groups. “The tours, isn’t it selective based on who can show up at the capitol and afford to do that?” he asked.

But with playgrounds, “we have a selective program that is publicly announced, publicly visible, that is different from these other kind of programs,” said Layton.

“But how do we draw the line between selective and general?” Justice Gorsuch asked.

“We do know that the decision here was made because it was a church,” said Layton.

Justice Gorsuch countered that the state has programs that pay for crossing guards for children. “Do we do the same thing with health of children?” he asked. “That’s what I see as the difficulty. We choose your line there, and we proliferate litigation forever.”

“There’s a statement… in the [church’s] brief that says the church is told that it can’t participate in the life of the community, but what Trinity wants is to have the community participate in the life of the church,” Layton added. “And that is anathema to the kind of basic doctrines that we get out of the founding era that provided for a division.”

But “now the line is moving,” responded Justice Gorsuch. “Now it’s apparently on the basis of whether we’re granting the money to physical plant or to some other purpose.”

“Wherever the line is,” said Layton, “writing a check that says payable to Trinity Lutheran Church ought to be on the other side of that line.”

The court is expected to issue a ruling in the case this June.

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Law

Trinity Lutheran disregards the Establishment Clause

In the early 1770s, Thomas Jefferson set out to undo the web of laws that established the Church of England as the religion of Virginia. To aid his work, Jefferson made a list of acts of either the Virginia Assembly or the English parliament (as far back as the 1540s). In all, Jefferson found 17 Virginia statutes (beginning in 1661) and 23 English statutes concerning religion.

As Professor Michael McConnell of Stanford, who has reviewed the work of Jefferson and the establishment of religion at the nation’s founding tells it, financial support from taxes did not, by itself, enshrine establishment. “Even after dissenters were given the right of free exercise of religion and the Church of England lost its tax-exempt status, the Virginia Assembly continued to speak of it as the ‘church by law established.’”

Religious rights, and states’ efforts to withhold their sanction from religion, are scheduled to come before the Supreme Court this Wednesday, when the justices will hear arguments from Trinity Lutheran Church in Columbia, Missouri. The church, which operates a preschool and day care center, contends the state’s excluding the church on religious grounds from a program that provides funds for resurfacing playgrounds violates the Constitution’s Free Exercise and Equal Protection clauses.

The appeal by Trinity Lutheran presents an early test for a Republican majority of the court that now includes Neil Gorsuch, who could cast the deciding vote. That is the same Neil Gorsuch who ruled in favor of Hobby Lobby Stores, which persuaded the court to strike down a provision of the Affordable Care Act that required employers to cover the cost of contraception for their employees.

“It is simply impossible to establish Trinity Lutheran’s religious identity, when, as Missouri has done here, the state excludes it from participation in the life of the community solely based on its religious status,” Trinity Lutheran writes in its brief, citing a concurrence by Justice Kennedy in the Hobby Lobby decision.

The playground dispute began in 2012, when the church applied for funds from Missouri’s Scrap Tire Surface Material Grant Program, which the state uses to reduce the number of tires in landfills and improve children’s safety.

The church charges that the state’s Department of Natural Resources (DNR) notified the church that it would be ineligible to receive funds from the program. In support of its determination, the state cited the Missouri Constitution, which prohibits the use of public funds “in aid of any church, sect, or denomination of religion…”

Trinity Lutheran sued Missouri in the U.S. District Court in Kansas City. The trial court dismissed the accusations, noting that payment of funds by the state “to a sectarian institution” would contravene the Establishment clause. By a vote of 2 to 1, the Eighth Circuit Court of Appeals agreed.

Trinity Lutheran asks the Supreme Court to apply strict scrutiny to the state’s action, which means the state must be able to cite a compelling governmental purpose for denying the church’s application for playground funds based solely on its status as a religious institution.

“The religious difference between Trinity Lutheran’s daycare and secular daycare operators is the only basis for the exclusion here, although they both seek scrap tire funds to fulfill the state’s recycling goals and to provide children a safer area to play,” the church writes. “Because the DNR employs a suspect classification, it must satisfy strict scrutiny.”

But precedent, counters Missouri, leads to a conclusion that the state’s decision is entitled to deference where, as here, the state has not interfered with the free exercise of its faith by Trinity Lutheran. “This court has long held that the government does not infringe the exercise of a constitutional right by declining to subsidize it,” the state argues.

Trinity Lutheran asserts that the Eighth Circuit relied in error on a ruling by the Supreme Court in Locke v. Davey, a 2004 case in which the court upheld a decision by Washington State to exclude from eligibility for state scholarship aid students who pursue degrees in devotional theology. The state cited its constitution, which prohibits use of public funds to aid religious instruction.

In reaching its decision in Locke, the court noted the tension between the Free Exercise and Establishment clauses. “In other words,” Justice Rehnquist wrote for the majority, “there are some state actions permitted by the Establishment clause but not required by the Free Exercise clause.”

The majority also considered the challenge to Washington State’s decision in the context of the history of established churches in colonial America. Rehnquist wrote:

Most states that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry. The plain text of these constitutional provisions prohibited any tax dollars from supporting the clergy. We have found nothing to indicate… that these provisions would not have applied so long as the state equally supported other professions or if the amount at stake was de minimis. That early state constitutions saw no problem in explicitly excluding only the ministry from receiving state dollars reinforces our conclusion that religious instruction is of a different ilk. [citations omitted]

Missouri says the decision in Locke “applies squarely” to the appeal by Trinity Lutheran. But the church distinguishes the religious training rejected for state funds in Locke from the playground flooring that Trinity Lutheran hopes to install. Trinity Lutheran argues:

In Locke, this court was concerned by what the scholarship funds were going to be used for—the devotional training of clergy—not the identity of those who were using the money. But Trinity Lutheran’s religious identity was the sole basis for the DNR’s exclusion here. Locke simply has no application in that context.

The court agreed on January, 15 2016 to hear Trinity Lutheran’s appeal. Justice Scalia died about a month later. The justices seem to have waited to schedule the case for argument until the court again had nine justices.

That’s where Neil Gorsuch comes in. “I don’t think anybody on the secular side of the fence thinks the state of Missouri is going to get a fair shake from Mr. Hobby Lobby,” writes Elie Mystal at Above the Law, referring to the newest justice. (If that’s correct, so much for Republicans who claim to cherish states’ rights.)

Justice Gorsuch describes himself as an originalist, meaning, he says, he strives to apply the law as he finds it. For the appeal by Trinity Lutheran, he might look, as the American Civil Liberties Union suggests in a brief filed in support of Missouri, to ideas espoused by both Jefferson and James Madison, who wrote the First Amendment.

In 1785, Madison published, anonymously (he acknowledged authorship 41 years later), an essay titled “Memorial and Remonstrance against Religious Assessments.” The tract argued against a bill in the Virginia Assembly to collect a tax to fund preachers.

“Who does not see,” Madison asked, “that the same authority… which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

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Virginia judge blocks Trump travel ban

Editor’s note: I’m a bit late on this ruling, but I wanted to write it up for the record. On Thursday, the president told reporters he plans to issue a new executive order on immigration next week that the government says will be designed to eliminate concerns that led two federal courts to block enforcement nationwide of a ban on admission to the U.S. of people from seven predominantly Muslim countries.

***

The Trump administration’s ban on entry to the U.S. for people from seven predominantly Muslim countries likely constitutes state sponsorship of religion in violation of the Constitution, a federal court in Virginia has ruled in a further setback to the White House’s effort to tighten the border in the name of national security.

Though the government contended that security concerns motivated a Jan. 27 executive order that enshrines the ban, public comments before and after the election by the president and his allies suggest that the order reflects policy designed to disfavor Muslims in contravention of the First Amendment’s Establishment Clause, Judge Leonie Brinkema said in a 22-page opinion issued Monday that prevents the administration from enforcing the ban in northern Virginia.

The ruling supplements a ruling on Feb. 3 by a federal judge in Seattle that blocked enforcement of the order nationwide.

In reaching her ruling, Brinkema surveyed at least six years of statements by Donald Trump, who complained to Fox News in 2011 of a “Muslim problem in the world,” and later, on the morning the executive order was signed, told an interviewer that his administration would prioritize admissions for “persecuted Christians” from Syria, as provided in the order.

Two days later, the court noted, former Mayor of New York City Rudolph Giuliani told Fox News he assembled a commission at the request of then-candidate Trump that reframed a Muslim ban as scrutiny of immigrants from the seven countries named in the order.

The statements suggest that the executive order aimed to exclude entry to the U.S. by Muslims, said Brinkema. And that, together with the absence of evidence that would specify the national security concerns that allegedly prompted the order, belie the government’s claim that the travel ban has a secular purpose that would allow it to withstand scrutiny under the Establishment Clause, according to Brinkema.

“Absent the direct evidence of animus [toward Muslims] presented by the Commonwealth [of Virginia], singling out these countries for additional scrutiny might not raise Establishment Clause concerns; however with that direct evidence, a different picture emerges,” Brinkema wrote. “In Giuliani’s own account, the origin of this [order] was a statement by the president that he wanted a legal way to impose a ban on Muslims entering the United States.”

“The Court’s conclusion rests on the highly particular ‘sequence of events’ leading to this specific [order] and the dearth of evidence indicating a national security purpose,” she added.

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Trump’s immigration order is unconstitutional

Sally Yates paid with her job for standing up for the Constitution.

In a letter Monday to lawyers at the Department of Justice, Yates, the acting attorney general, explained that she was “not convinced” that the defense of a White House order issued Friday that bars entry to the U.S. by people from seven majority-Muslim countries would be consistent with DOJ’s “solemn obligation to always seek justice and stand for what is right.”

That earned her a sacking by the White House, intensifying a crisis that began Friday when President Trump signed the order, leading customs officials to detain people arriving from the countries at issue, visas in hand.

But as Yates appears to have concluded, the order is unconstitutional. Among other reasons: It results in the government’s favoring one religion over another, in violation of the Establishment Clause of the First Amendment.

Though the president denies that the order is a ban on Muslims, he also told an interviewer on Friday that Christians would be given priority when applying for refugee status. As David Cole, legal director of the American Civil Liberties Union wrote in a blog post published Saturday:

Here, too, Trump has violated the Establishment Clause’s ‘clearest command.’ Christians suffering persecution deserve asylum, but so do Muslims suffering persecution and Buddhists and Jews and Sikhs and Zoroastrians. There is no legitimate reason to favor Christians over all others who are persecuted for their beliefs.

Even had Trump not singled out Christians, the order would still be unconstitutional, according to Cole. Thirty-five years ago, the Supreme Court invalidated a Minnesota law that required religious organizations receiving less than half their contributions from members to register as charitable organizations and file an extensive annual report.

Though the statute did not mention any religion by name, members of the Unification Church, which raised most of its donations from non-members and, therefore, did not qualify for the exemption, accused the government of violating its free exercise of religion guaranteed by the First Amendment.

The court agreed. “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another,” Justice Brennan wrote for the majority. “The fifty per cent rule sets up precisely the sort of official denominational preference that the Framers of the First Amendment forbade.”

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Trump ‘extreme vetting’ to face court challenges

Of the 19 terrorists who attacked the U.S. on 9/11, 15 were from Saudi Arabia, two were from the United Arab Emirates, one was from Egypt and one from Lebanon.

President Trump invoked the image in an executive order signed on Friday that makes citizens of seven majority Muslim nations ineligible for a visa to enter the U.S. None of the nations include countries of the terrorists who carried out the 9/11 attacks.

The order directs the Homeland Security secretary to determine what information is needed to issue visas to people from Iraq, Syria, Yemen, Somalia, Sudan, Libya and Iran. The American Civil Liberties Union called such vetting “a euphemism for discrimination against Muslims.”

The order also bars refugees from entering the country for four months, and suspends admission of refugees from Syria indefinitely. The president said he would prioritize persecuted Christians from the Middle East as refugees.

The Council on American-Islamic Relations said Friday it would sue to challenge the order on behalf of more than 20 people who charge that it violates the First Amendment.

“The courts must do what President Trump will not — ensure that our government refrains from segregating people based on their faith,” Gadeir Abbas, one of the group’s attorneys, said in a statement.

Separately, lawyers for two Iraqi men reportedly en route to the U.S. on Friday evening with valid visas and detained at Kennedy Airport have filed a lawsuit challenging the ban on refugees as unconstitutional. It was unclear how many refugees were detained at airports nationwide.

Presidents have broad powers to control the country’s borders, which the administration seems likely to assert in court. Because absent alternative facts, the president will be unable to point to anything that ties the nations at issue to the September 11 attacks. As a report by New America notes, “every jihadist who conducted a lethal attack inside the United States since 9/11 was a citizen or legal resident.”

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What the DNC hacking says about the need for campaign finance reform

The hacking of computers at the Democratic National Committee (DNC) and the publication of internal emails that followed may reveal as much about problems with our system of paying for political campaigns as it does about cybersecurity.

With its signs of complicity by Russia, the resignation of the DNC’s chairwoman, sounding off by Donald Trump, shades of the Watergate scandal and the widening scope of the intrusion, the incident leaves plenty to ponder. Add to that list the reality that our politics are overpowered by money.

The roughly 19,000 messages published by WikiLeaks show the lengths to which staff at the DNC went in their courting of benefactors, with offers of access, appeals to ego and flashes of desperation all intended to spur people to give. As the Times reported, the emails reveal “in rarely seen detail the elaborate, ingratiating and often bluntly transactional exchanges necessary to harvest millions of dollars from the party’s wealthy donor class.”

Republicans do it, too. Both parties chase wealthy supporters because a series of rulings by the Republican majority of the Supreme Court allow it and leave the parties with little incentive not to.

The pursuit has intensified since 2010, when the majority in Citizens United v. Federal Election Commission construed spending on political campaigns to be a form of speech entitled to protection under the First Amendment. Four years later, in McCutcheon v. Federal Election Commission, the same justices invalidated aggregate limits on contributions to candidates for federal office, political parties and political action committees.

The DNC emails show how the court’s elevating the First Amendment rights of donors over those of our democracy misconstrues the former and warps the latter. As Bert Neuborne, a professor of constitutional law at New York University Law School, asserts in his book, “Madison’s Music,” the failure (or refusal) of the majority to read the Bill of Rights as the Virginian wrote it has created the current reality by unmooring the Free Speech Clause from the rest of the First Amendment.

As Neuborne sees it, political contributions fall into a category of communication to which the the court has accorded less protection under the First Amendment than speech itself. He writes:

“The term ‘the freedom of speech’ as used in Madison’s First Amendment has no intrinsic literal meaning. Like any abstract legal concept, it must be given meaning by human judgment. That’s why threats, blackmail, extortion, false statements causing harm, obscenity, and ‘fighting words’ are treated by the Court as outside ‘the freedom of speech.’”

Because the act of spending money is communicative conduct and not pure speech, Congress can place reasonable limits on spending. The government also can recognize that “reinforcing political equality is unquestionably a substantial government interest,” according to Neuborne, and, therefore, a legal basis for limits on campaign finance.

Justice Breyer has argued as much. In his dissent in McCutcheon, Breyer explained that campaign finance laws “are rooted in the constitutional effort to create a democracy responsive to the people – a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects.”

The solution lies with the court, which means that it lies with the next president. She or he may fill as many as four vacancies on the court as justices age or retire. In her speech on Thursday to the Democratic National Convention, Hillary Clinton pledged to appoint justices “who will get the money out of politics and expand voting rights, not restrict them.” She also has promised to pursue a constitutional amendment to overturn Citizens United.

Though he has railed against political action committees, Donald Trump has said he would nominate conservatives to the court in the mold of the late Justice Antonin Scalia, who constituted one-fifth of the majority whose rulings abrogated limits on campaign spending and touched off the free-for-all that the emails from the DNC chronicle.

Meanwhile, the status quo endures. At the Ritz-Carlton in Philadelphia on Tuesday, former Governor Charlie Crist of Florida, a onetime Republican who is now running as a Democrat for Congress, moved through the lobby amid a sea of the party’s top givers. “We must have set up five fundraisers today,” he told the Times. “This is the bank.”

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Sanders supporters lose bid to block superdelegates

A dearth of superdelegates (Photo: Jeff Solari, Wikimedia Commons)
A dearth of superdelegates (Photo: Nick Solari, Wikimedia Commons)
Supporters of Senator Bernie Sanders have lost their bid to block the Democratic Party’s use of superdelegates at this week’s convention in Philadelphia.

The First Amendment does not give individual members a right to control internal processes of the party, which is expected to nominate Hillary Clinton for president, a U.S. district court in Manhattan ruled recently in a challenge filed by Jeff Kurzon, an attorney and Sanders supporter.

Kuzon charged in court paper’s that the party’s use of superdelegates dilutes the power of the popular vote and sought a court order that would bar them from voting at the convention. The Democratic Party has 713 superdelegates, who include members of Congress and party leaders, and who can vote for the candidate of their choice. Clinton leads Sanders among superdelegates, 602-48.

“An individual’s First Amendment associational rights do not empower him to compel nomination procedures that guarantee his preferred candidate a ‘fair shot’ at winning a party’s nomination,” Judge Paul Oetken wrote in a ruling dated July 18.

Oetken, who noted that the party has “countervailing First Amendment rights – which would be clearly infringed by the injunction that Kurzon seeks in this case,” also rejected a contention by Kurzon that weighting the votes of superdelegates as the Democrats do violates party members’ rights to equal protection of the law. The prohibition on valuing one person’s vote over another does not apply to party nominating conventions, Oetken said.

The court disagreed with Kuzon that use of superdelegates constitutes a breach of contract. Even if rules for selection of delegates could be construed as an enforceable contract, they “are suffused throughout with references to the role of superdelegates and clearly permit their use,” wrote Oetken.

Because of the unlikelihood that Kuzon could succeed on the merits of his challenge, the court declined to determine whether the actions of a national political party constitute state action – a “difficult question,” according to Oetken and a prerequisite for Kuzon to have prevailed on his constitutional claims.

Eighty-five percent of the Democratic Party’s delegates to the convention are pledged, which means they are required to vote for a particular candidate based on the result of their state’s primary or caucus. The remainder are superdelegates.

The party’s rules committee, at the urging of Sanders’ supporters, agreed on Saturday to narrow the pool of superdelegates to elected officials within the party in future nominating contests

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Law

How the end of campaign finance limits paved the way for Donald Trump’s presidential bid

The presidential campaign now underway is making history for at least one reason besides the prospect of the first woman or a star of reality TV becoming the nation’s chief executive.

The campaign also marks the coming online of a series of rulings by the Supreme Court, beginning with the court’s decision in Citizens United six years ago, that enable groups aligned with candidates to accept unlimited donations.

Hillary Clinton has raised a total of $296 million, of which 29% has come from super PACs allied with her, as of March 31. For all her financial fortitude, the money impairs Clinton’s inability to gain traction among Democrats (and, possibly, in a general election, among independents) who harbor antipathy toward the establishment, which all those super PAC dollars represent.

Bernie Sanders, Clinton’s Democratic rival, disavows support from super PACs, though some outside groups still support him. Donald Trump, the GOP nominee, also has criticized candidates who get support from super PACs though he has said that Republicans will need to raise $1 billion to compete against Clinton.

Writing in February in The Atlantic, Ron Brownstein noted that both Trump and Sanders address the yearnings of those who feel shut out of the political process. Among people who were likely to vote in the Republican primary, nearly 87% preferred Trump if they agreed with the statement that people like them have no say about what the government does, according to a survey in December and January by the RAND Corporation.

That brings us back to the Supreme Court, and specifically to a ruling two years ago in McCutcheon v. Federal Election Commission. The case came before the court on an appeal by Shaun McCutcheon, a businessman and electrical engineer from Alabama, who in the 2011-2012 election cycle contributed a total of $33,088 to 16 different federal candidates as permitted by law.

McCutcheon alleged on appeal that he wished to contribute $1,776 to each of a dozen additional candidates but was barred from doing so by an aggregate limit of $48,600 that he challenged as unconstitutional under the First Amendment.

He also asserted that he contributed a total of $27,328 to several political committees not associated with any particular candidate and that he wished to contribute additional amounts to the Republican National Committee and other groups but was blocked by an aggregate limit on contributions to political committees, again, McCutcheon charged, in violation of the First Amendment.

The RNC and McCutcheon filed suit in the U.S. District Court for the District of Columbia, challenging the constitutionality of the aggregate limits.

There a three-judge panel rejected the contention, characterizing the base limits and the aggregate limits “as a coherent system rather than merely a collection of individual limits stacking prophylaxis upon prophylaxis.”

Assuming that the base limits served the government’s interest in preventing corruption – an interest that could survive scrutiny under the First Amendment – the aggregate limits also survived scrutiny because they prevented an end-around of the base limits.

A majority of the Supreme Court, where McCutcheon and the RNC appealed next (federal law allows for direct appeals in such cases) disagreed. Chief Justice John Roberts, writing for the majority, reasoned that the decision by Congress to limit to $5,200 contributions to any one candidate made sense because it reflected a judgment by legislators that giving a candidate more might risk corruption, as in giving or receiving something in return for something else.

But the aggregate limit served no such purpose, according to the majority. “If there is no corruption concern in giving nine candidates up to $5,200 each, it is difficult to understand how a tenth candidate can be regarded as corruptible if given $1,801, and all others corruptible if given a dime,” asserted Roberts, who continued:

The Government has a strong interest, no less critical to our democratic system, in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption – quid pro quo corruption – in order to ensure that the Government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them.

But the majority defined corruption too narrowly, argued Justice Breyer, who filed a dissenting opinion on behalf of himself and Justices Ginsburg, Sotomayor and Kagan. The First Amendment, he explained, “advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” (emphasis in original)

Viewed that way, corruption “breaks the constitutionally necessary ‘chain of communication’ between the people and their representatives,” Justice Breyer wrote. “Where enough money calls the tune, the general public will not be heard.”

And then the dissent anticipated the phenomenon of voters feeling shut out of their democracy that can give rise to a figure like Trump. According to Justice Breyer:

“The ‘appearance of corruption’ can make matters worse. It can lead the public to believe that its efforts to communicate with its representatives or to help sway public opinion have little purpose. And a cynical public can lose interest in political participation altogether.”

As the minority saw it, regulation of campaign finance rests on a rationale that’s broader than the majority’s concern with public officials who might be tempted to sell their votes. Such laws “are rooted in the constitutional effort to create a democracy responsive to the people – a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects,” Justice Breyer wrote.

In short, the First Amendment protects speech but it protects democracy, too. By constraining its view of the amendment, the majority legalized the idea that democracy yields to money which, if you accept the premise, is a form of speech. From there draw a line directly to voters who feel disenfranchised. Trump is not the only candidate who speaks to such voters – Sanders does, too, from the left – but Trump got to many of them first.

Writing on Scotusblog a day after the decision in McCutcheon, Burt Neuborne, a professor of civil liberties at NYU, asserted that promotion of political equality can justify some limits on spending by the very rich.

Preventing corruption, wrote Neuborne, “means the preservation of a democracy where the governed can expect their representatives to decide issues independently, free from economic serfdom to their paymasters. The road to 2016 starts here.”

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Law

Supreme Court backs ban on Confederate license plates, strikes down Arizona sign law

Two rulings last week by the Supreme Court highlight differences in the protection of speech depending in part on who is speaking and reveal some of the ways the justices assess First Amendment claims.

By a vote of 5 to 4, the Court affirmed, in an appeal by the Texas Division of the Sons of Confederate Veterans, that speech by the government may not be challenged as violating the Constitution. Separately, by a unanimous judgment that stretched across four concurring opinions, the Court invalidated a code adopted by the town of Gilbert, Arizona that governed the display of billboards and outdoor signs.

The rulings “are likely to be analyzed together from here on, to determine how—and whether—they fit into the strong pattern that the modern Court had followed in more or less steadily expanding free-speech rights,” Lyle Denniston observed at Scotusblog. “Indeed, in some ways the outcomes seemed contradictory, and the splintering of the Court added to that appearance.”

In the case from the Lone Star State, the Court reviewed the veterans group’s challenge of a decision about five years ago by the Texas Department of Motor Vehicles Board, which rejected the group’s proposal for a license plate featuring a Confederate battle flag. Comments filed by the public as part of the review process showed that many people considered the design offensive, the board said. (The proposal preceded the massacre at Emanuel African Methodist Episcopal Church in Charleston that, among other things, has renewed calls to remove the Confederate flag from the state capitol.)

Though the trial court backed the board, the 5th Circuit U.S. Court of Appeals reversed, concluding that the board, in declining to approve the design, discriminated against the veterans’ viewpoint in violation of the First Amendment.

The Court disagreed. “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says,” Justice Breyer wrote for a majority joined by Justices Thomas, Ginsburg, Kagan and Sotomayor. “That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech.”

A review of the program by which Texas considers proposals for specialty license plates shows that “Texas explicitly associates itself with the speech on its plates” and that someone who displays a message on a license plate issued by the state “likely intends to convey to the public that the state has endorsed that message,” explained Justice Breyer. “If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate.”

The First Amendment applies to government regulation of speech by members of the public, not to speech by the government, the majority noted. Members of the public who disagree with speech by the government have both the freedom to criticize the government’s views and to vote elected officials out of office, the Court explained. Democracy itself “provides a check on government speech,” Justice Breyer noted.

The alternative—subjecting speech by the government to the strictures of the First Amendment—would not work, Justice Breyer noted, adding:

“How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary? How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials had to provide the prospective of those who oppose this type of immunization?”

But specialty license plates do not constitute government speech, countered the dissenters, who likened the plates to a so-called limited public forum, which allows state property to be used by private speakers, such as when a city turns over its municipal auditorium for a candidates’ debate. In those cases, the dissenters noted, the First Amendment prevents the government from discriminating on the basis of viewpoints. As Justice Alito explained:

“The Confederate battle flag is a controversial symbol. To the Texas Sons of Confederate Veterans, it is said to evoke the memory of their ancestors and other soldiers who fought for the South in the Civil War. To others, it symbolizes slavery, segregation, and hatred. Whatever it means to motorists who display that symbol and to those who see it, the flag expresses a viewpoint. The Board rejected the plate design because it concluded that many Texas would find the flag symbol offensive. That was pure viewpoint discrimination.”

The State of Texas has authorized more than 350 specialty license plates, including plates bearing the names of high schools, fraternities or sororities, the Daughters of the American Revolution, a favorite soft drink and a favorite NASCAR driver, Justice Alito observed. Would someone sitting at the side of a highway in Texas, watching the vehicles pass by, “really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars?” he asked. “If a car with a plate that says ‘Rather Be Golfing’ passed by at 8:30 am on a Monday morning, would you think: ‘This is the official policy of the State—better to golf than to work?’”

On the other hand, attempts by the government to regulate speech will be presumed unconstitutional whenever the regulation differentiates among private citizens based on the content of their message. The town of Gilbert, a city of roughly 209,000 people that sits about 22 miles southeast of Phoenix, established rules for the display of outdoor signs based on three categories: those that conveyed so-called ideological messages, those that aimed to influence the outcome of an election, and those that directed people to a gathering of a religious, charitable or nonprofit organization.

At issue was an appeal by the Good News Church, which the town fined for posting between 15 and 20 temporary signs that advertised upcoming services. The signs omitted a date for the assemblies and remained posted for longer than the 13 hour-period that concluded one hour after the services. The town cited the church, which sued.

A trial court sided with the town. The 9th U.S. Circuit Court of Appeals agreed, concluding that the code did not discriminate among displays based on the content of their message.

The Court reversed the ruling. “The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign,” Justice Thomas wrote in an opinion joined by Justices Roberts, Scalia, Kennedy and Sotomayor. “On its face, the Sign Code is a content-based regulation of speech. We thus have no need to consider the government’s justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny.”

According to Thomas, the appellate court’s determination that the code did not regulate speech based on the town’s disagreement with any particular message disregarded the need to determine initially whether the law as written avoided distinctions based on the message being conveyed.

In upholding the code, the 9th Circuit had determined that the town’s attempt to regulate signs had nothing to do with the content of their messages. But that overlooked “the crucial first step in the content-neutrality analysis: determining whether the law is content neutral on its face,” Justice Thomas wrote. “In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral. Thus, a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.”

That view went too far, according to Justices Breyer and Kagan, who wrote separately to covey their view. “Regulatory programs almost always require content discrimination,” Justice Breyer noted. “And to hold that such content discrimination triggers strict scrutiny is to write a recipe for judicial management of ordinary government regulatory activity.”

As Justice Breyer noted, the government requires that public companies include certain content in securities filings, that labels for prescription drugs bear the symbol ‘Rx only,” that rules requiring confidentiality of medical records allow a physician to disclosed that a patient has HIV to the patient’s spouse or sexual partner, and that commercial airplane pilots must ensure that each passenger has been advised to fasten his or her seatbelt. According to Justice Breyer:

“The better approach is to generally treat content discrimination as a strong reason weighing against the constitutionality of a rule where a traditional public forum, or where viewpoint discrimination, is threatened, but elsewhere treat it as a rule of thumb, finding it a helpful, but not determinative legal tool, in an appropriate case, to determine the strength of a justification.”

Despite the ruling, three of the four opinions gave little guidance to municipalities, which may be left to wonder how they might regulate the placement of billboards without contravening the Constitution. That fell to Justice Alito, who, in a concurrence joined by Justices Kennedy and Sotomayor, offered some examples of how to regulate outdoor signs other than by reference to the content of the billboards themselves:

“I will not attempt to provide anything like a comprehensive list, but here are some rules that would not be content based:

Rules regulating the size of signs. These rules may distinguish among signs based on any content-neutral criteria, including any relevant criteria listed below.

Rules regulating locations in which signs may be placed. These rules may distinguish between free-standing signs and those attached to buildings.

Rules distinguishing between lighted and unlighted signs.

Rules distinguishing between signs with fixed messages and electronic signs with messages that change.

Rules that distinguish between the placement of signs on private and public property.

Rules distinguishing between the placement of signs on commercial and residential property.

Rules distinguishing between on-premises and off-premises signs.

Rules restricting the total number of signs allowed per miles of roadway

Rules imposing time restrictions on signs advertising a one-time event. Rules of this nature do not discriminate based on topic or subject and are akin to rules restricting the times within which oral speech or music is allowed.”

That’s not to suggest that all regulation of speech that does not encompass content comports with the First Amendment. Rules that set the so-called time, place and manner of speech must be narrowly tailored to serve a legitimate government interest but, as Justice Alito, explained, “need not meet the high standard imposed” on regulations that regulate speech based on its content or the speaker’s viewpoint.

At least some municipalities welcomed the ruling, which impacts most local governments. “Gilbert looks forward to the opportunity to review its own regulations to make necessary changes consistent with the Supreme Court’s decision,” Michael Hamblin, the town’s attorney, said in a statement.