hunter of justice

The week ahead: January 9, 2012

January 10 - Oral argument before the U.S. Supreme Court in FCC v Fox (No. 10-1293). The United States is appealing lower court rulings that the FCC's indecency restrictions on broadcast television and the Internet are unconstitutionally vague.  The communications at issue include images of nudity in a NYPD Blue episode and the use of phrases such as “f***ing brilliant,”  “f*** em,” and “f***ing easy” in a live broadcast.  

Also January 10 - Oral argument before the South Dakota Supreme Court in Rumpca v. Brenner, on the continuing validity of a cause of action for alienation of affection under state law. A hangover from common law, alienation of affection is a tort action that allows recovery of damages from an individual who seduced the plaintiff's (usually former) spouse and thus brought about the end of the marriage. South Dakota is one of seven states that still recognizes it as a valid claim.

District Court considers injunction against Missouri school district's filtering software

U.S. District Judge Nanette K. Laughrey heard arguments yesterday on whether to grant an injunction against a Missouri school district's use of filtering software that screens out lgbt-positive sites.

From the Kansas City Star:

... Judge Laughrey made no immediate decision on whether to impose a preliminary injunction against the Camdenton School District at the request of attorneys for the American Civil Liberties Union. She also was considering the school district's assertion that an unnamed student and several organizations that operate websites had no legal standing to bring the lawsuit because they had not suffered any harm from the district's policy.

The Camdenton school system is the first to be sued under a recent national campaign by the ACLU and Yale Law School intended to improve access at schools to websites related to gay and lesbian issues. Of more than 100 school districts contacted as part of the project, only the Camdenton, Mo., and Gwinnet County Public School District in Georgia have not yet responded by changing their Internet filtering software, said Joshua Block, an attorney for the ACLU's Lesbian Gay Bisexual Transgender & AIDS Project.

Although they have not changed website filtering services, Camdenton school officials testified that they have allowed access to four specific websites cited by the ACLU that had previously been blocked by filters. During Thursday's hearing, school officials repeatedly stressed that they have no intent to discriminate against websites with gay and lesbian content.

In 2010, Camdenton schools began using an Internet filtering service provide by URL.BlackList.com that the ACLU contends infringes on First Amendment rights by grouping some non-sexual websites related to gay, lesbian, bisexual or transgender issues into a blacklisted category of websites dealing with sexuality. The Camdenton School District allows students or employees who get blocked from a website to submit an anonymous request for access to the site. School officials then view the website and decide whether to override the filtering service and allow access to it.

Over the past few years, the district has received about 2,000 requests to unblock certain websites and has granted about 80 percent of those, testified Randal Cowen, the district's network administrator.

The school district's attorney, Thomas Mickes, argued that the student — listed only as Jane Doe in the lawsuit — had no legal standing to sue because she had not requested and been denied access to any website. He said the nonprofit organizations that operate websites similarly had no legal standing to sue, because there is no constitutional right for Internet publishers to have access to public school students.

Mickes argued that the school had not censored any websites based on their viewpoints. He said sites dealing with gay and lesbian issues that get blocked by the filtering software are treated the same in the review process as any other website that gets flagged by the filters.

Block, representing the ACLU, argued that the school system has engaged in censorship by continuing to use a filtering service that it now knows is overly broad in blocking access to some gay and lesbian websites. The ACLU said few other school districts use the same filtering service as Camdenton.

Before its current campaign, the ACLU in 2009 sued the Knoxville and Nashville school districts in Tennessee over access to websites with lesbian and gay information. Those districts then agreed to stop using filtering software that blocked those sites.

Serbian government threatens to cancel Belgrade Pride

UPDATE: The parade was banned.

As foreseen, an lgbt pride march scheduled for Sunday in Belgrade is in jeopardy of being canceled by government officials who say they cannnot guarantee the safety of participants.  From Irish Times:

Serbian authorities may ban Sunday's gay rights parade in Belgrade and all other public gatherings this weekend, fearing a replay of the violence at last year's parade, officials said today. Gay and human rights activists plan to gather in a park on Sunday and then march past government buildings. Ultranationalist groups have said they will stage a counter-rally.

More than 100 policemen were injured last year and dozens of ultranationalists arrested after trying to disrupt the parade. Rioters attacked offices of the ruling coalition parties, set ablaze the headquarters of the Democratic Party of president Boris Tadic, and did millions of dollars' worth of damage in the capital.

Interior minister Ivica Dacic, who heads the ruling Socialists, said the gay pride event posed a major security risk for ordinary people, property and police. "I would rather take the political responsibility for banning the event than see bloodshed," Mr Dacic said in a TV broadcast. He said as many as 5,000 security personnel, including anti-riot units, plainclothes agents and mounted police would be needed to secure the event. Belgrade mayor Dragan Djilas [also] called for it to be cancelled.

Goran Miletic, a human rights activist and one of the organisers of the parade, said a ban would be a capitulation to intolerance. "Violence is not normal. What is normal in a democratic country is to have people rallying peacefully for a couple of hours," he said.

Support for pro-gay speech and gay teachers rises dramatically

According to the National Opinion Research Center at the University of Chicago, public support for allowing an "admitted homosexual" to speak or to teach has risen farther and faster than support for any other of the unpopular speech categories that NORC has studied. Allowing an openly gay person to speak has shot up from 62% in 1973 to 86% in 2010; the level of support for allowing an openly gay person to be a teacher was 48% in 1973 and 84% in 2010.

By comparison, the support levels for "someone who is against all churches and religion" moved in the same time period from 66% to 72% for speaking and from 41% to 60% for teaching.

The full report contains results for other unpopular speakers as well, none of which registered the same jump in public support as the "admitted homosexuals." The underlying data come from the GSS (General Social Survey), probably the most respected source of data on social trends in the U.S.

States pass anti-Phelps-style protest laws, sure to be challenged

In Snyder v. Phelps, the Supreme Court ruled last spring that the loony Westboro Church contingent that haunts servicemember funerals with placards condemning tolerance for homosexuality could not be sued for infliction of emotional distress based on the content of their protest. Several states have responded with statutes that seek to address the question, as McClatchy News Service reports:

...California lawmakers [have] joined their counterparts in Arizona, Illinois and other states in passing tougher new restrictions on protests at funerals. In particular, legislators hope to deter members of a small, aggressively loud Kansas church who travel long distances to picket military funerals, where they often proclaim that dead soldiers are God's punishment for America's sins....

Judges, however, will have the final say on whether legislation muffling speech near funerals can survive First Amendment challenges. A review of relevant cases suggests the new restrictions may reach farther than courts have been willing to go.

"There will be a challenge to the California legislation," Topeka, Kan.-based attorney Margie Phelps promised Friday. "We're preparing the suit now."

A federal appeals court already is considering separate challenges to funeral protest restrictions imposed in Missouri and Nebraska. Phelps said a ruling by the 8th U.S. Circuit Court of Appeals could come "any day." Potentially, she added, the Supreme Court could take up the controversy "within a year."

Phelps represents the Westboro Baptist Church of Topeka, whose members primarily come from the extended Phelps family. They've traveled across the country to picket military funerals, decrying America's sins and deploying signs with graphic messages such as "God Hates Fags" and "Thank God for Dead Soldiers."...

"Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible," wrote Chief Justice John Roberts, but "as a nation we have chosen ... to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

But the court's 8-1 decision avoided taking a position on state laws and noted that states could potentially impose some "content neutral" restrictions on the "time, place or manner" of funeral protests... 

The California bill ... establishes a 1,000-foot buffer zone in which protests would be banned an hour before and an hour after a funeral service. Arizona imposed a no-protest zone extending 300 feet, while Illinois likewise extended a no-protest zone to 300 feet around military funerals.

The size of the no-protest zones could pose one problem. In 1994, the Supreme Court upheld a 36-foot buffer zone shielding women entering Florida abortion clinics. The court in 1988 likewise upheld a Wisconsin city's law banning picketers "before or about" a private home.

But the high court indicated there are limits to how far a no-protest buffer can stretch. In the 1994 case, justices struck down a broader 300-foot buffer zone around abortion clinics.

"The 300-foot zone would ban general marching through residential neighborhoods, or even walking a route in front of an entire block of houses," then-Chief Justice William Rehnquist noted, adding there was not "sufficient justification for this broad a ban on picketing."

Suppression of queer speech: The more things change...

Twenty years ago, my friend and colleague David Cole and I represented the NEA 4, gay and feminist artists who were awarded grants through the peer review process at the National Endowment for the Arts, only to lose them when the NEA Director caved in to pressure by rightwingers who attacked their art as obscene and blasphemous. Sound familiar?

Following is an essay by David in the NY Review of Books commenting on how arts censorship ca. 1990 looks from the vantage point of 2010:

On November 29, a conservative website posted an 11-second clip of ants crawling over a crucifix from a 4-minute video made by David Wojnarowicz, an artist who died of AIDS in 1992. The video, Fire in My Belly, was part of a show at the National Portrait Gallery called “Hide/Seek,” said to be the country’s first national exhibition devoted to gay and lesbian themes. Wojnarowicz made the video in 1986 and 1987, as his lover Peter Hujar was dying of AIDS, and as David himself learned that he was HIV-positive; it is an eerie meditation on life, death, violence, and nature, featuring imagery from the Day of the Dead. David later explained that he saw Jesus as a symbol of someone who willingly took on the suffering of the world. A self-appointed conservative guardian of public morality, William Donohue of the Catholic League, saw it differently, and attacked the video clip as blasphemous and demanded that the piece be taken down. The Smithsonian—which runs the National Portrait Gallery and which is funded by the US Government—promptly removed the video from the exhibition, effectively granting Donohue a “heckler’s veto.”

About twenty years ago, a gaunt, respectful, but angry David Wojnarowicz [photo left by Peter Hujar] walked into my office at the Center for Constitutional Rights in New York to ask what could be done about a flier that Donald Wildmon of the American Family Association had just sent out to every member of Congress, all major newspapers and TV networks, and thousands of religious ministers throughout the country. The flier featured images of gay male pornography, and claimed that they were David Wojnarowicz’s art, funded by the National Endowment for the Arts. The claim was blatantly false. David had incorporated small “found” images from gay male pornography in a series of life-sized collages devoted to the challenges of living as a gay man in the 1980s, in a community ravaged by AIDS and beset by condemnation, prejudice, and hatred. But Wildmon had reproduced only the pornographic images, stripping them from their context in the collages, and blatantly twisting the facts to further his homophobic propaganda.

We sued Wildmon, and in 1990, a federal district court ruled that he had violated David’s rights under the New York Artists Authorship Rights Act, which forbids the misrepresentation of an artist’s work. The court ordered Wildmon to cease sending out any further fliers, and to deliver a correction to everyone who received the original flier. Because David’s work had independently obtained wide recognition and was increasing in value—art critic Dan Cameron has called him “one of the most potent voices of his generation”—we were unable to demonstrate that the controversy had caused him financial damages. As a result, the court ordered Wildmon to pay David one dollar in nominal damages. David promptly incorporated the dollar in an artwork inspired by the controversy. Two years later, David died.

Around the same time, the Corcoran closed a show of Robert Mapplethorpe’s photographs because of pressure from social conservatives, and the NEA revoked funding to four performance artists—Karen Finley, John Fleck, Holly Hughes, and Tim Miller—after conservative columnist Robert Novak blasted the endowment for using public money to fund gay and sexually-explicit artwork. We sued the NEA over its denial of funding, and after a court rejected its motion to dismiss the case, the NEA agreed to pay the artists the amount of their grants.

In one sense, David Wojnarowicz and the NEA Four won. The fact that the National Portrait Gallery has now dedicated a major exhibition focused on sexual difference and marginalization in American portraiture is also surely a victory. We live in more tolerant times...

But the battle is far from over...And from the standpoint of publicly funded art, the censors have won. Congress’s response to the “culture wars” was to require the NEA to “take into consideration general standards of decency and respect for the diverse beliefs and values of the American public” in making arts funding decisions. The Supreme Court upheld that requirement. Public arts institutions learned that political controversy could jeopardize their financial support, and publicly funded arts have never been the same. When the National Portrait Gallery put on “Hide/Seek,” it made sure to finance it only with private donations, undoubtedly recognizing that it might stir protest. The show’s private funding was insufficient, however, to steel the Smithsonian when it faced criticism. (And now one of the largest private funders, the Andy Warhol Foundation, has threatened to cut off its financial support because the museum caved to pressure).

But while the recent censorship of Wojnarowicz’s work recalls what happened in the early 1990s, the differences are also instructive. When the Corcoran closed the Mapplethorpe show and the NEA revoked Karen Finley’s funding, widespread public outcry followed. The Smithsonian’s decision to remove Wojnarowicz’s video, by contrast, has attracted comparatively little attention. We have come to expect timidity in public arts institutions. In some sense, the surprise is not that the Smithsonian removed the video, but that it put on “Hide/Seek” in the first place.

The muted public response to the current controversy points in two different directions. On the one hand, homosexual self-expression is substantially more accepted today than it was twenty years ago. David would, I think, be surprised and gratified by the changes wrought in American culture... On the other hand, the fundamentalist censorial strain remains a profound force in American society, reflected today in the populist and often intolerant undertones of the religious right and the Tea Party. And one thing has remained a disappointing constant—public institutions’ willingness to cave on issues of public controversy. Like so many other wars, the culture wars of the 1980s have left their traces on America’s character. 

Sequel to Snyder v Phelps: More speech

There's a First Amendment cliche that the best response to offensive speech is more speech. That doesn't always do the trick in real life, but it seems to have prompted an appropriate reaction to the loony Fred Phelps/Westboro Church crew who show up at (straight) service member's funerals with signs proclaiming that the death was God's punishment for America's tolerance of homosexuality. One decedent's father sued Phelps, and the case is now in the Supreme Court.

In the meantime, though, other groups have started turning up at these funerals to out-demonstrate the Phelps crew. (This is made easier by the fact that the entire congregation of the Westboro Church consists of members of the Phelps family.) The photo below shows a bikers club in Missouri standing between the Phelps contingent and the curb, blocking sight of them by persons attending the funeral.

European Court of Human Rights uses strict scrutiny for sex/o discrimination

In Alekseyev v. Russia, the European Court of Human Rights issued a judgment in favor of a gay activist who has been leading efforts to secure the right to march in the streets of Moscow, and in the process has encountered police brutality and official roadblocks. The EHR found that Russia had violated the Convention on the Protection of Human Rights in several respects, including denial of the right to peaceably assemble.

One of the claims was that the government's actions were not only censorious but that they were applied differentially to Alekseyev because he is gay.  In that portion of the opinion (pp 26-27), the court adopted what in the U.S. would be called strict scrutiny, the highest level of protection. It held that when discrimination

operates in this intimate and vulnerable sphere of an individual’s private life, particularly weighty reasons need to be advanced before the Court to justify the measure complained of. Where a difference of treatment is based on sex or sexual orientation the margin of appreciation afforded to the State is narrow, and in such situations the principle of proportionality does not merely require the measure chosen to be suitable in general for realising the aim sought; it must also be shown that it was necessary in the circumstances. 

The court added that if sexual orientation were the only reason for a differential policy, that would essentially be a per se violation of the Convention.

The EHR is now in the same peculiar zone as California state law - it requires strict scrutiny, but has also ruled that same-sex couples do not have a right under the Convention to marry. 

Previewing tomorrow's argument in Snyder v. Phelps

The Supeme Court hears arguments Wednesday in Snyder v. Phelps, a case that will decide whether the law can squelch especially hateful anti-gay speech by the self-annointed "prophets and prophetesses" of a tiny Kansas church. It seems to me that only a new carve-out of First Amendment protection could allow sanctions against this speech, and I find it surprising that the Court granted cert. It did, though, so at least four Justices must think that there is some plausible question in the case.

Here is an excerpt from the SCOTUSblog summary of the main briefs:

Albert Snyder’s brief on the merits ... assert[s] that the Court should not extend [Hustler Magazine v. Falwell] to an intentional verbal assault on “a private individual [who] has done nothing to attach himself to a public event or controversy.”   The Rev. Falwell, it noted, sued the magazine in his role as a public figure...

The starkly contradictory view that the Westboro Baptists hold of the core issues in the case emerged anew in their merits brief.  Once more, they stressed their claim that their expression fit completely within the Hustler precedent — public speech that cannot be proven false, and that was not uttered with “actual malice.”  “The Constitution,” it asserted, “is imperiled if a subjective claim of outrage can be used to penalize into silence speech that does not make false statements of fact, uttered in public arenas on public issues.”...

It also expressly disagreed that Snyder had any claim to privacy invasion, since funerals are public events, and that is especially so for the funerals of soldiers...

Snyder’s appeal draws fervent, outright support — most conspicuously from 42 members of the U.S. Senate, speaking in favor of the laws passed by Congress and 46 states to limit picketing at funerals and calling for a full Supreme Court embrace of the broad notion that protesters like the Westboro Baptists should not be “free to hijack [this] private funeral as a vehicle for expression of their own hate.” and 48 states and Washington, D.C., similarly defending state laws against what they call “psychological terrorism that targets grieving families.” ...

Lining up on the side of the First Amendment (while distancing themselves from the “inexplicable and hateful” message of the Westboro Baptists),  ...  [a] group of First Amendment scholars rather boldly suggested in its brief that the dignity interests of those engaged in burying their dead are not really at issue in this case, because there are ample means — within the concept of “time, place and manner” restrictions tolerated by the First Amendment” — to protect those interests.  Many of the amici filings on this side of the case appear to be most alarmed at the prospect that the Court would significantly expand the “captive audience” concept.

The Court has been served up in this case with a set of mutually exclusive choices — deciding how to interpret the facts of what went on [at Matthew Snyder's funeral], deciding on the meaning and reach of its prior First Amendment rulings on state torts and on media vs. non-media defendants in such lawsuits, on the nature of the Westboro Baptists’ expression and its link — or lack of it — to public questions, on the legal “personality” that Matthew’s father assumed at the time of the picketing and since, and on the definition and scope of “captive audience” doctrine.

It seems clear that, to rule definitively for either side, the Court would have to make most if not all of those choices in one direction.  Each side’s argument depends upon its explicitly tailored view of not only the facts but what those facts mean to the legal concepts.  For all of the effort, on each side, to make the case fit neatly into already established First Amendment norms, this case has about it the promise of rewriting a considerable body of First Amendment law.

For a Court that so recently had refused to create a new exception to the First Amendment’s protection (so as to permit the outlawing of animal cruelty videos and films), the task of crafting a “funeral rights” exception to free speech doctrine may be a forbidding one.  But for a Court hearing this case in the midst of war weariness and an expanding fear of decaying morality, the prospect of drawing a First Amendment shield around  the Westboro Baptists’ message may also be a daunting one..

NYC teacher taken out of classroom for online defense of sex work

According to the NY Times, a public school teacher in New York City is being treated the way gay teachers were treated 30 years ago. Her crime is not sexual orientation. but her acknowledgment that she previously worked as a prostitute. 

You know, there was a famous referendum, a famous Supreme Court case and, two years ago, a famous movie about the effort to purge schools of gay teachers and anyone who advocated homosexuality. This situation is really no different.  

Where's the new Harvey Milk?

A teacher at a Bronx elementary school has been reassigned after writing on a Web site about her past as a sex worker. In a short online article in The Huffington Post on Sept. 7, the teacher, Melissa Petro, criticized Craigslist for shutting down its “adult services” section, which carried sex-related advertising.

Ms. Petro wrote that from October 2006 to January 2007, she “accepted money in exchange for sexual services I provided to men I met online.” She said that she used Craigslist to meet men and it provided “a simple, familiar forum through which I could do my business with complete anonymity, from the safety and convenience of my own home.” She also wrote that she found “the lifestyle physically demanding, emotionally taxing and spiritually bankrupting,” and gave it up after a few months.

Ms. Petro was hired as a teacher in August 2007, a spokeswoman for the city Education Department, Natalie Ravitz, wrote in an e-mail on Sunday. She said that Ms. Petro worked at Public School 70 in the Bronx and had tenure. Ms. Ravitz said that Ms. Petro had been reassigned pending an inquiry by Richard J. Condon, the special commissioner of investigation for the city schools. She declined further comment. 

Phelps crew targets 3 churches on their way to the moot

Next Wednesday the Supreme Court will hear argument in Snyder v. Phelps, which raises the question of whether truly repulsive speech is protected by the First Amendment. (The answer is almost certainly yes.) The appeal is on behalf of Fred Phelps and his hardy little band of followers, who have seized upon the idea that the best way to protest gay rights is to show up at the funerals of dead service members and declare that all such military deaths are God's punishment for America's tolerance of homosexuality. No, I'm not kidding. 

Representing Fred Phelps is his attorney daughter Margie Phelps. (That's her wearing the pink shirt in the photo.) It's either astonishing or frightening or both that 10 of his 13 children became lawyers. Here is Margie's lawyerly view of the Phelps enterprise: "Our role is simple. We are prophets and prophetesses." 

On Sunday the entire (tiny) crew was in Richmond for a moot of the argument that was sponsored by Virginia Commonwealth University and the University of Richmond Law School. According to the Richmond Times-Dispatch, a not so funny thing happened on the way to the moot: Margie and her peeps managed to work in three protests at local churches. 

Church-goers in DC - you are forewarned. 

Ninth Circuit: Two Oregon laws barring minors' access to sexually explicit materials are unconstitutional

The Ninth Circuit has ruled in Powell's Books v. Kroger that two Oregon laws that prohibit making sexually explicit literature available to minors violate the Constitution because they are too broad and infringe on free-speech rights.

The laws were intended to prevent abusers from providing sexually arousing material to children in an effort to lower a child's resistance to engaging in sexual conduct. The first, intended to shield children under 13 from all sexually explicit content, "reached a substantial amount of material that does not appeal to the prurient interest of a child under 13, but merely appeals to regular sexual interest," according to the Court of Appeals. The second law, restricting sexual references available to those under 18, "criminalizes fiction no more tawdry than a romance novel." 

[S]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.

Writing for the court, Judge Margaret McKeown found that "In their current form, the statutes sweep up a host of material entitled to constitutional protection, ranging from standard sexual education materials to novels for children and young adults by Judy Blume."

Supreme Court argument set in Snyder v. Phelps

The Supreme Court will hear argument four weeks from today, on October 6, in Snyder v. Phelps, No. 09-751. So far, this is the only case on this term's docket that involves lgbt-related issues, although the legal questions before the Court have nothing to do with sexuality or gender law.

The case concerns whether the First Amendment permits a civil action against Fred Phelps and others who routinely picket funerals of servicemembers with signs celebrating the death as evidence of God's punishment of the United States for tolerating homosexuality. Examples of the signs:"Thank God for Dead Soldiers" and "You're Going to Hell."

Phelps and his crew conducted their protest at the funeral of Marine Lance Cpl. Matthew Snyder, who was killed in Iraq. They stayed a thousand feet away from the church; many mourners apparently did not see them because traffic was directed along other streets. Matthew's father sued Phelps for invasion of privacy, intentional infliction of emotional distress and other torts. The jury returned a verdict for Snyder of nearly $11 million, mostly punitive damages (later cut by the judge to $5 million).

The Fourth Circuit  overturned the verdict, on the grounds that Phelps's speech, however outrageous, consisted of hyperbolic rhetoric and contained no provably false factual connotations (both First Amendment standards). 

This is truly a case of constitutional protection for disgusting speech. No surprise that the Snyder family got a huge jury verdict. Also no surprise that First Amendment advocates have lined up to support Phelps. Most interesting sidelight in the case: Phelps is being represented by his attorney daughter. Oral argument is going to be a macabre event.

The CLS dissent: Justice Alito claims center stage

Everything about the CLS decision was smothered in the msm this week by the Court's decisions on the Second Amendment and the "honest services" fraud law (and of course the Kagan hearings); coverage of the dissent really got lost. But followers of lgbt law should pay attention to it, and not just because the dissenters fell only one vote short of a majority. Here are three other reasons:

• Together with his apparently reluctant concurrence in Doe v. Reed, Justice Alito's opinion in CLS marks him as Justice Scalia's reliable wing man for negative intensity regarding lgbt issues;
• The dynamic relationship between identity and viewpoint has become the heart of lgbt-related constitutional discourse; and
• The positioning of social conservatives as an unpopular minority at risk of suppression produces their strongest arguments, both morally and legally, a precise inversion of the "moral majority" atmosphere of the 1980s, when they argued that AIDS was God's retribution against homosexuals.

Alito's the Man

Everyone expected that Justice Alito would be a reliable conservative vote on the Court, but no one knew how vehement he would be.  Now we know.  At least when it comes to lgbt issues, he's vehement.

And his sympathetic boss has taken notice. There could be many reasons why Chief Justice Roberts selected him to write the opinion of the four dissenters - here are two possibilities: to give him the ball and thus the opportunity for leadership in a field that he seems to care about quite a deal, and to give Justice Scalia some relief time on the bench, a break from being the only Justice who writes ripper dissents in these cases, a role he played in Lawrence and Romer.

The bad news is that Scalia Jr. has arrived.  The best news is that Justice Alito and Justice Kennedy disagree.

Viewpoint [v.] [and] [<-->] Identity

In the bad old days when Hardwick was still good law, lgbt rights lawyers
labored mightily at a pretty impossible task: trying to convince courts that there was a constitutionally significant distinction between the sexual conduct that gay people engaged in and their identity as gay (which I mean here to encompass lesbian and bisexual). When Lawrence was decided, especially because of its weaving together of privacy and equality language, that distinction bit the dust. To paraphrase Justice Kennedy, the distinction was incorrect when it was articulated and it is incorrect today.

But the conundrum of how to classify "gay identity" - a compound of expression, conduct, and belief as to the moral worth of honest sexuality - has not gone away nor gotten much easier, so long as one has to operate within the boxes of legal doctrine. The classification question doesn't matter much in life, but it can be decisive in law. If you flip the perspective to opposition to gay rights, you get the same conundrum from the opposite side. Are "anti-gay advocates" opposed to sexual conduct between two men or two women; or to pro-gay speech; or not to either but to the idea that homosexuality and heterosexuality are morally equivalent? Does it matter in life? Should it matter in law?

Justice Alito's opinion places CLS squarely in the third camp, and argues that unless CLS gets an exemption from the non-discrimination policy, its own right to express and argue for its beliefs will be violated. One rejoinder from the majority is that the non-discrimination policy prohibits the conduct of exclusion by a group receiving a form of public benefit, rather than the expression of belief. There are plausible arguments in support of both of these framings, and the difference between them is, at bottom, what created the 5-4 split among the Justices.

Which of these two conflicting minorities is entitled to the protection of the state?

Justice Alito gave voice to the cri d'coeur of CLS, which is that under the Hastings policy, gays get to be everywhere and we don't get to have our own safe space. Of course CLS could not be shut down because of their anti-gay views, nor could CLS be forced across the board to admit people who disagree with those views. Both of those actions by the state are, happily, inconceivable under the First Amendment. But does CLS get to exclude who it wants to and to participate in the Hastings system of recognized student organizations?

I phrased this third section's question as "entitled" because that word conveys both the issue of entitlement under the law and the more normative inflection conveyed by the same word. This decision, like any case before the Court, is about law; and Justice Alito begins his opinion by invoking the great mantle of the First Amendment's freedom to express "the thought that we hate." (The phrase comes from an opinion by Justice Holmes 81 years ago.) One of the reasons that strong First Amendment protections are often unpopular is because they serve to protect the expression of ideas that are widely (and often properly) vilified. (Think Nazis marching in Skokie.)

Almost the only victories in gay rights cases in the early stages of the movement were grounded in precisely this principle - judges, like everyone else, thought the idea of homosexuals expressing pride was virtually a joke, but the First Amendment saved us again and again. Now conservative Christians are seeking that same protection as an unpopular (in the context of Hastings) minority, as they have every right to do. And with that explicit legal claim comes their silent corollary claim for the moral high ground as the persecuted minority.

++++

I side with the majority in this case: I think that the Hastings model of an all-comers policy is constitutionally permissible.  Whether that is the choice that I would make if I were running a law school is another question.

Supreme Court rejects preferential treatment for religious organizations (expanded)

By a 5-4 margin, the Supreme Court ruled in Christian Legal Society v. Martinez (2010 WL 2555187) that a UC-Hastings Law School policy of requiring all official student organizations to accept any student who sought to join was constitutional. The Christian Legal Society had argued that the so-called "all comers" policy violated its right of free association, because CLS excludes, inter alia, all gay people and anyone who engages in sex outside of marriage, based on the beliefs it advocates. There was a messy dispute over whether the all-comers policy was in fact applied evenhandedly, but CLS also argued that even if it was, religious groups should be exempt from its application. Justice Ginsburg wrote the opinion of the Court; there was a strong dissent by Justice Alito.

There were essentially two issues in the case: (1) whether an all-comers policy applied to every student group is constitutional as applied to CLS; and (2) whether the  policy that student groups cannot discriminate based on specified characteristics including sexual orientation (rather than a requirement that they allow any student to join)  - which is what CLS contended was the real reason they were denied recognition - is constitutional as applied to them. Unfortunately for CLS, its lawyers in the lower courts had stipulated that the Hastings policy was applied equally to every student group. Based on that, the Court reached only the first question.

It may seem obvious that the criteria for official recognition of student groups (and thus for eligibility for a variety of benefits) would have to be applied equally. But CLS argued that such an approach would have the effect of undercutting groups organized around a particular philosophy, and that such groups should be able to exclude students who disagree with that philosophy. And, indeed, that is the price of an all-comers policy: the student Democrats cannot keep right-wing Republicans from joining and seeking leadership positions, for example. The same principle applies to every group, and one among many applications would be that a student lgbt rights group could not keep out students who believe that homosexuality is immoral.

The Court noted that the advisability of an all-comers policy is different from its constitutionality. Such a policy obviously creates at least a hypothetical risk of hostile students hijacking an organization, but the question in this case was whether taking that risk in order to have a universally applicable rule was a reasonable option for a public university. (Private universities are not bound by the First Amendment.) The Court said yes, in large part because it rejected CLS's argument that an all-comers policy was covertly discriminatory, in that it discriminated against groups that wanted to disobey the non-discrimination rules. (Did you follow that?)

The decision does not mean that every other public university must adopt an all-comers policy. It does not mean that CLS will be barred from any presence on campuses even at schools that do. It means that CLS can constitutionally be denied the status of a recognized student group and the benefits related to that status. The Court analogized CLS to fraternities and sororities, entities that receive no financial aid from universities but which can participate in campus life in many ways.

Although the Court did not rule that an all-comers policy such as the one at Hastings is constitutionally required, I would expect that we will see more of them. Every law school has a non-discrimination policy that includes sexual orientation (it's required, with some exemptions for religiously-affiliated schools), and CLS has chapters at a lot of law schools.  (Not every CLS chapter adopts exclusionary policies.) For any dean, the Hastings model now has one very big advantage: it inoculates you against this kind of lawsuit.

What CLS really wanted to litigate was question #2. The argument they wanted to have was about whether a mandate of equal treatment regardless of sexual orientation could be enforced against a religious organization that professes the belief that homosexuality is immoral. Their goal was to press on the Court an extension of the ruling in Boy Scouts v. Dale that the Scouts could not be forced to obey a state anti-discrimination law in violation of its anti-gay beliefs. One critical distinction between this case and Dale is that the Hastings policy concerns only recognition; nothing stops CLS from continuing to operate independently without changing their practices, while the Scouts would have been forced to integrate. But CLS also argued that even if compliance with the non-discrimination policy would be constitutional as applied to other student organizations, they should be exempt because they were a religious group.

Because it did not have to, the Court did not reach question #2. However, Justice Stevens did.  In the last case on the last day that he will serve as a Justice, Stevens wrote a separate concurrence finding that a university non-discrimination policy enforced against CLS would be constitutional because it regulated the conduct of student groups, not their viewpoints, and that there was no basis for believing that Hastings had adopted it as a pretext for discriminating against conservative religious groups. Justice Stevens rather pointedly noted that "the dissent is willing to see pernicious antireligious motives and implications where there are none, [but] it does not seem troubled by the fact that religious sects, unfortunately, are not the only social groups who have been persecuted throughout history simply for being who they are."

And then there was Justice Alito's impassioned dissent, about which I will write separately, when I have more time.