Friday, July 25, 2014

Hobby Lobby decision

Everyone is talking about the Supreme Court’s decision in Burwell v. Hobby Lobby.  Most of this discussion centers on broad issues such as whether for-profit corporations can engage in legally protected religious exercise and the importance of providing women access to preventive care and contraception, but listening to the debate it isn’t easy to garner what the actual effect of the Court’s ruling is or what the Justices stated in their opinions.  Thus I decided to read it myself (so you don’t have to) and see if I could find the answers.  Here’s my understanding of the decision.

The Patient Protection and Affordable Care Act, aka Obamacare (“ACA”),  requires employers with more than 50 full-time employees to provide workers with group health insurance.  These insurance plans must meet the standard of “minimum essential coverage” as defined by the Act which includes preventative care and screenings with no cost-sharing by the individual (i.e. no co-pay).  The reasoning behind this is that cost-barriers can deter or prevent individuals from getting the preventative care they need.  This is bad for the individual and also bad for the healthcare system given that prevention is less costly than treatment down the road.  This coverage is especially important for women given that women paid significantly more than men for preventative care.

Congress left it to the Dept. of Health and Human Services (“HHS”) to specify which types of preventive care and screenings were required.  Among other things, the HHS regulations require insurance plans to pay for all FDA approved forms of contraception.  The HHS noted that, of these, 4 types of contraception (IUDs and two “morning after” pills) raised ethical issues for people of certain religions as they can prevent a fertilized egg from implanting in the uterus and thus might be considered abortifacients.  Thus, the HHS created an exception by which churches and religious non-profits who registered objections on religious grounds could pay for insurance plans which did not include these forms of birth control.  In these cases, the insurance company would provide employees with separate coverage for this contraception bearing the cost itself (the government determined the cost for insurers is nil as they would still save money in the end) and thus women would still receive this treatment at no additional cost.  

The petitioners in this case are Conestoga Wood (a comapny owned by a Mennonite family) and Hobby Lobby (owned by a Christian family and whose stated purpose includes “honoring the Lord in all [it does] by operating the company in a manner consistent with Biblical principles.”)  Both companies are closely-held, for-profit corporations.  They object to paying for health insurance which includes coverage for the controversial contraception on religious grounds. 

The Court held that requiring plaintiffs to pay for health insurance that covered said forms of contraception constituted a substantial burden on their religious free exercise, that the fact that they chose to organize themselves as for-profit corporations did not preclude them from asserting legally protected religious beliefs and that the government could have adopted a less restrictive method to serve the state interest at issue here.  The Court suggests that for-profit corporations like Hobby Lobby that object to the controversial contraception could be accommodated by the same exception that the HHS has already carved out for churches and religious non-profits.  As noted  above, the cost is born by the insurance company and female employees would still receive the contraception at no additional charge.

Justice Alito wrote the majority decision in which Chief Justice Roberts, Justices Scalia, Kennedy and Thomas joined.  Kennedy also wrote a concurring opinion.  Justice Ginsburg wrote a dissenting opinion in which Sotomayor joined.  Justices Breyer and Kagan joined in all but one part of Ginsburg’s dissent and wrote their own dissenting opinion.


It’s interesting to note that this case was not decided on First Amendment freedom of worship grounds; rather the ruling is based on the Religious Freedom Restoration Act of 1995 (“RFRA”) which extends broad protection to religious exercise.  Congress passed the RFRA in the wake of the Court’s decision in Employment Div. Dept. of Human Resources of Ore. v. Smith (1990).  In Smith, two Native Americans were fired and denied unemployment benefits because they ingested peyote as part of a religious ceremony.  The Court held that “neutrally, generally applicable laws” (like drug laws) which interfered with citizens’ free exercise of their religion do not normally violate the First Amendment.  In response to this, the RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”  If there is a substantial burden, the RFRA states that the person is entitled to an exemption unless the Government can demonstrate that the rule as it applies to the person (a) furthers a compelling government interest and (b) is the least restrictive means of furthering said interest.  This language echoes the strict scrutiny standard the Court applies to Equal Protection cases where the law adversely affects a suspect class (e.g. where the law results in racial discrimination) and which sets the bar so high that the State is almost never able to satisfy these requirements.


The first and probably most important question is whether a for-profit corporation is a person protected under the RFRA.  In the Conestoga Wood case, the lower court (3rd Cir Ct. App.) held that “for-profit, secular corporations cannot engage in religious exercise” within the meaning of the RFRA or the First Amendment.  The Court does not agree:  Alito notes that “person” is not specifically defined in the RFRA, and thus the Court should look to the Dictionary Act (1 USC §1) which states that the word person “includes corporations, companies, associations, firms, partnerships, societies and joint stock company, as well as individuals.”  Congress’ purpose in passing the RFRA was to extend broad protection for religious exercise, and—the Court argues—Congress knows how to use restrictive language when it wants to.

Alito points to past cases where the Court heard the petitions of sole proprietors engaged in for-profit commercial activity who claimed that the law inhibited their religious free exercise—for example, a case where Orthodox Jewish merchants from Philadelphia challenged the blue light law, arguing that because religious observance required them to close their businesses on Saturday being forced to stay closed on Sunday presented an undue hardship.  In those suits no one questioned plaintiffs’ standing, and the Hobby Lobby Court argues that the fact that plaintiffs in the present case chose to organize themselves as a corporation should not prevent them from filing suit.

Alito also notes that courts long ago abandoned the idea that the sole purpose of a corporation is to create profit for its shareholders.  Today, corporations can be formed with the stated purpose of “engaging in any legal activity”: thus many corporations participate in charitable or environmental activities in order to “give back to the community” (note also Hobby Lobby’s stated purpose of running its business in accord with Biblical principles).  Alito even suggests that some organizations whose primary purpose is not to generate profit nevertheless choose to form a for-profit corporation or a “hybrid” for various reasons (e.g. participating in lobbying); this would further blur the distinction between the religious non-profits exempted by the HHS and corporations like Hobby Lobby and Conestoga.

The majority opinion also contains what is essentially an apology for extending protection to legal persons such as corporations.  I imagine this was written in anticipation of public objection (as occurred after the Citizens United decision) as much as it was written in response to the dissent.  Alito admits that treating corporations, etc. as persons is a legal fiction, but he suggests that ultimately the Court is protecting the rights of the natural persons behind the corporation (e.g. the families that own Hobby Lobby and Conestoga Wood).

If we accept that plaintiff corporations are persons protected by the RFRA, we must go on to see whether the ACA’s contraceptive mandate imposes an impermissible burden on their rights:


The majority notes that no one questions that plaintiffs’ objections stem from “sincerely held beliefs.”  Alito states that Congress trusted that the judiciary could determine whether an action brought under the RFRA was motivated by sincerely held beliefs as opposed to something else (like an attempt to avoid paying a tax).

Plaintiffs see the 4 controversial methods of birth control as abortifacients and believe that, by paying for a health plan which covers them, they are facilitating abortion.  Significantly, Alito points to case law where the Court stated that it was not for the judiciary to question the validity of persons’ religious beliefs (cf. Smith “we have warned that courts must not presume to determine… the plausibility of a religious claim”).  In one case, a Jehovah’s Witness who was fired from his job was initially employed making sheet metal (some or all of which would be used in manufacturing weapons), but when he was transferred to a position where he was making turrets for tanks he claimed this went against his religious beliefs.  The Court held “it is not for us to say that the line he drew was an unreasonable one.”           

So the plaintiffs assert that paying for health plans covering the contraception would violate their religious beliefs.  And if they refuse to do so this would result in a hefty fine under the ACA.  Thus the Court finds that the law as applied to plaintiffs constitutes a substantial burden.


The majority states that while the HHS and the dissent assert that the law serves big picture government interests such as “public health” and “gender equality,” the inquiry under the RFRA must be more focused.  Rather than looking at the ACA as a whole, the Court should ask whether the contraceptive mandate as applied to the plaintiffs supports a compelling state interest.

In a nasty bit of dictum, Alito states that he’s not so sure.  Consider for example the exemptions that already exist, not only for churches and religious institutions but also for companies with less than 50 full-time employees and those with grandfathered insurance plans in place for their employees (N.B. grandfathered plans are exempt from several ACA provisions; in her dissenting opinion J Ginsburg notes how these plans are gradually disappearing because whenever a change is made to an insurance policy it loses its grandfathered status.  This also explains why the plaintiffs cannot avail themselves of this exception).  In the end, Alito leaves the question as to whether the contraceptive mandate serves a compelling government interest unanswered, assuming arguendo that it does.  This allows us to proceed to the final question:

Is this the least restrictive means the government could have adopted to serve this interest?

Of course not.  As Alito writes, this is an “extremely demanding standard.”  In another troubling bit of dictum, Alito asks whether the solution in cases like this might be to have the government foot the bill
 the most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.  This would certainly be less restrictive of the plaintiffs’ religious liberty, and the HHS has not shown… that this is not a viable alternative.
This is an important point.  Alito quotes language from the RLUIPA (the Religious Land Use and Institutionalized Persons Act of 2000—related to the RFRA), “this chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise,” and he states that “HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.”

At any rate, the majority opinion goes on to state that Government expenditure is not the only option here as the HHS has already created an exemption for religious non-profits, under which insurance companies bear the cost of covering these forms of contraceptives, which could be easily extended to corporations like the plaintiffs.  Alito follows this up by stating, “We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.  At a minimum, however, it does not impinge on the plaintiffs’ religious belief[s]… and it serves HHS’s stated interests equally well.”


Justice Kennedy filed a brief concurring opinion in which he emphasizes that the decision is not as broad as the dissent suggests.  He discusses the importance placed on religious liberty in our nation and that the RFRA imposes a stringent test.  Kennedy also states that in this case “accommodation may be made to the employers without imposition of a whole new program or burden to the Government” as a mechanism is already in place.


Justice Ginsburg begins by noting the importance of women’s healthcare (Kennedy supra noted that there are a number of medical conditions for which pregnancy is contraindicated; thus the issue of contraception is not just about family planning, for some women an unplanned pregnancy would be dangerous).  She characterizes the majority ruling thusly:
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs…. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a ‘less restrictive alternative.’  And such an alternative… there always will be whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e. the general public, can pick up the tab.
The contraceptive mandate was included in the ACA as part of the Women’s Health Amendment; Ginsburg notes that a further “conscience amendment” had been introduced which would have allowed any employer or insurance provider to deny coverage based on asserted “religious beliefs or moral convictions” and that this amendment was voted down by the Senate. 

Regarding the RFRA, Ginsburg notes that the Act itself states that it is meant “to restore the compelling interest test as set forth in Sherbet v. Verner.”  Thus, Ginsburg argues, the Congress’ purpose in passing the law was (basically) to do away with the Smith ruling that laws of general applicability do not normally violate a person’s right to religious free exercise and return to previous case law.  She points to United States v. Lee, a pre-Smith case in which an Amish employer sincerely believed that fulfilling the obligations imposed on employers by the Social Security tax system violated his faith.  The Court held that despite the fact that the law conflicted with his religious beliefs the burden was not unconstitutional.  It recognized that the government had an important interest in managing the “nationwide… comprehensive insurance system.”  Ginsburg likens the ACA’s comprehensive healthcare system to Social Security.  She also quotes language in the Lee decision that “when followers of a particular sect enter into commercial activity as a matter of choice… the limits they accept on their conduct as a matter of conscience and faith are not to be superimposed on statutory schemes which are binding on others in that activity.”  For the majority, this quote is irrelevant: it was discussing First Amendment constitutional rights and not rights granted by the RFRA.  They see that RFRA as creating new protections for religious exercise whereas Ginsburg argues that its purpose was merely to restore the field to its condition prior to Smith.
On the issue of extending religious protection to for-profit corporations, Ginsburg notes that this is wholly unprecedented in the Court’s case law and that this lack of precedent “is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities.”  She rejects the majority’s reasoning that the absence of restrictive language in the RFRA means the Court should turn to the Dictionary Act (Congress knows how to use restrictive language when it wants to); she asserts the opinion that it’s very unlikely Congress was contemplating protection of religious freedoms being extended (for the first time) to corporations when they passed the RFRA.

Ginsburg notes that the government has long accorded “special solicitude” to religious-based non-profits and that laws often contain an exception for such institutions.  Those are groups where members of the same faith join together in pursuit of a common goal.  Ginsburg distinguishes for-profit commercial enterprises like Hobby Lobby and Conestoga Wood by pointing out that they employ workers of diverse faiths who do not necessarily share in the shareholders’ beliefs.  This is not a group of co-religionists and they share no united goal beyond generating profit.  It would be particularly egregious to allow corporations to claim an exemption based on religious convictions in this case given that it concerns benefits the corporation would normally have to provide to third-parties (its employees) who may not share these religious qualms regarding birth control.

Ginsburg also questions whether the contraceptive mandate constitutes a substantial burden.  When the majority ends their inquiry by noting that it is not for the Court to evaluate the plausibility or validity of sincerely held religious beliefs, Ginsburg argues that they are begging the question.  Beyond accepting the validity of stated religious beliefs, the Court can make a fact-based determination as to whether the government action substantially burdens those beliefs—it should not be enough that the plaintiff believes it does.  Ginsburg notes the tenuous connection here between employers’ contributions to employees’ group health insurance policy and the possible use of the controversial contraceptives to abort a fertilized egg.  The money paid by the employer flows into a large pool thus distancing the contributions from the use of contraceptives; moreover its uncertain whether any employees will actually avail themselves of these contraceptives let alone whether they will do so in a way that terminates a possible pregnancy after conception. 

Returning to Lee, in that decision the Court likened the Social Security program to the one established for income tax and noted that “the tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.”  Ginsburg likens the comprehensive system established by the ACA to Social Security or income tax and notes that the majority decision leaves the door open for further challenges to the law based on religious objections (Scientologists object to antidepressants, Christian Scientists to vaccinations, etc.).  Thus, allowing exemptions to the ACA based on religious beliefs could lead to the same sort of clusterfuck as entertaining religious-based objections to income tax.  Moreover, Ginsburg argues, it would put the Court in the position of deciding which religious objections were valid—something the majority states must be avoided.  Alito, meanwhile, answers that religious exemptions from income tax are still disallowed under the RFRA because no viable less restrictive means exists for serving the government’s compelling interest in collecting income tax; meanwhile, in this case, the Court has identified less restrictive means of accomplishing the state interest served by the contraception mandate.

Ginsburg also questions whether the majority’s decision is limited to closely-held corporations or whether it would allow all corporations to claim religious beliefs.  Alito’s opinion does not answer this question, but it notes that it is highly unlikely the shareholders of a publically traded corporation could agree upon shared sincerely held religious beliefs.

Finally, as one can see from the above quote, Ginsburg strongly objects to the Court’s suggestion that the RFRA should compel the government to adopt a “less restrictive alternative” where taxpayers would end up paying the cost created by an exemption afforded to members of a particular religious sect.


In their separate dissent, Justices Kagan and Breyer state that they join in all portions of Ginsburg’s opinion save the part in which she argues that corporations are not “persons” for purposes of the RFRA.  They would reject plaintiffs’ petition for a religious exemption on the other grounds laid out by Ginsburg without addressing that particular issue.


If the only practical effect of this ruling is that closely-held corporations whose shareholders assert sincerely held religious objections to the contraceptive mandate are allowed to avail themselves of the same exemption the HHS already affords to churches and religious non-profits (where insurance companies pay and women still receive contraception at no cost), I don’t think that is too tragic.  I do, however, agree with the broad principle, articulated by Ginsburg, that for-profit corporations do not engage in “religious exercise” that should be granted legal protection.  Furthermore, I agree that, in general, taxpayers should not have to pay the cost for exemptions created for members of a particular religious group, especially when they concern commercial activities.  I also find Ginsburg’s argument that this outcome is unjust in that it allows a corporation an exemption from providing benefits to employees who do not share in the owners’ religious beliefs persuasive.  

Sunday, April 14, 2013

Windsor and Hollingsworth: Oral Arguments

The two cases before the Supreme Court this year which seem to have generated the most interest are the “gay marriage cases”: United States v Windsor in which the Court was asked to rule on the constitutionality of Section 3 of the Defense of Marriage Act (“DOMA”) and Hollingsworth v Perry where the Court is asked to determine whether California’s Proposition 8 ballot initiative violates the US Constitution’s equal protection clause.  Both cases present a different set of complex jurisdictional issues in addition to questions regarding the merits of the case.  Let’s discuss. 


Case History 
In the 2008 election, a ballot proposal (“Prop 8”) was passed by California voters, amending the State Constitution so as to add a statement that “only marriage between a man and a woman is valid and recognized in California.”  This amendment superseded a 2008 decision by the California Supreme Court (“Cal S Ct”) finding that the California State Constitution guaranteed same-sex couples the right to marry.  The effect of Prop 8 was to prohibit the issuance of any new marriage licenses to same-sex couples although “civil unions” would still be allowed.

A gay rights group filed suit on behalf of several same-sex couples in Federal District Court (N.D.Cal.) alleging that Prop 8 violated the 14th Amendment of the United States Constitution which states that no State shall “deny to any person within its jurisdiction the equal protection of the laws.”  California Governor Arnold Schwarzenegger and the State Attorney General declined the opportunity to defend Prop 8 on the grounds that they believed it to be unconstitutional.  In their place, the court allowed the official proponents of the initiative (the members of a group called “” headed by Hollingsworth) to argue in favor of the new provision.

On August 4, 2010 the trial judge ruled in favor of the plaintiff on the grounds that Prop 8 violated the 14th Amendment.  The decision was appealed.  Before deciding the merits of the case, the Ninth Circuit Court of Appeals certified a question to Cal S Ct asking whether the non-government proponents of a ballot initiative had standing to defend it when State officials refused to do so; Cal S Ct responded that it was well established that official proponents of such initiatives had the right to intervene in cases concerning the law in California State courts.  Then, on February 7, 2012, the 9th Circuit panel hearing the appeal affirmed the District Court ruling striking down Prop 8.  The Supreme Court granted cert. 

The jurisdiction of federal courts is established by Article III of the US Constitution.  In this regard, the Supreme Court has long held that Article III only grants the Court jurisdiction over “cases or controversies.”  Famously, in response to a request by President Washington for a ruling on whether or not a proposed law would be constitutional, the Court responded that it was not vested with the power to issue “advisory opinions” to the other branches of government, but only to decide cases or controversies.  The Court has also ruled that one does not have standing to challenge a law or government action in federal court solely by virtue of being a taxpayer or a citizen of the United States, but rather one needs to have a particular vested interest or to have suffered an injury as a result of the government action.

Having said all this, the Court questions whether in the case at hand Hollingsworth and the Prop 8 proponents have a particular interest (or a right) that gives them standing to defend the law in federal court or whether this is analogous to one of those “citizen suits.”  Justice Ginsburg suggested that once an initiative is passed, the proponents do not have any “proprietary interest” in it and thus there is nothing distinguishing them from the rest of the State’s citizenry with regards to the new law.  In response, Scalia stated that the attorney general does not have a proprietary interest in state laws, but he’s allowed to defend them because the law says he can.  Following this line of reasoning, counsel for Hollingsworth made the argument that the State of California essentially delegates its right to defend state laws to the proponents of ballot initiatives.  In response, Justice Sotomayor questioned whether this can be true even though (unlike a state official) the proponents hold no “fiduciary duty” to the State.  Justice Kagan asked whether—hypothetically—the State could delegate its right to defend to any-ole-person.      

As stated above, Cal S Ct ruled that state law recognizes that proponents have a right to participate in court cases concerning their ballot initiative, but Chief Justice Roberts stated this is not dispositive as California cannot create Article III jurisdiction.  Cal S Ct said this right was integral to the initiative process: otherwise public officials could “veto” an initiative by refusing to defend it against attack.  One can imagine cases where a majority of voters pass an initiative which is odious to state officials (maybe eliminating their salaries or removing someone from office).  In such a case it stands to reason that the state government may not want to defend this new law, and if the proponents cannot do it who will?  Likewise, in the case at hand, if Hollingsworth does not have standing before the Court to defend Prop 8 who would?  

An issue addressed in both of these cases is what standard of judicial review the Court should employ when examining laws that adversely affect gay people.  Depending on the group that is adversely affected (or discriminated against) by a state law, the Court may apply a higher or lower threshold test.  In most cases, where the law disproportionately impacts members of a non-suspect class such as rich people, unmarried people or business owners, the Court applies a “rational basis” standard: if the law was passed to promote a legitimate State interest and we can think up any rational reason why the legislature may have believed the law might promote that State interest (N.B. that the law doesn’t actually have to accomplish what it was meant to do) that is good enough for the law to be upheld.  On the other hand, the Court long ago decided that laws that disproportionately impact members of a specific race or religion are subject to “strict scrutiny” given that this is precisely the type of discrimination the 14th Amendment was passed to prevent.  Under strict scrutiny, the law must serve a “compelling state interest” and there has to be no less discriminatory/harmful law the legislature could have passed in its stead to achieve the same purpose.  The Supreme Court has only upheld one law subjected to strict scrutiny: this was in an ex post facto review of the Executive Order that led to the internment of Japanese Americans during WWII.  More recently, the Supreme Court began applying an “intermediate” standard of scrutiny to laws that discriminated on the basis of sex/gender (as discussed in Ginsburg’s majority opinion in the VMI case).  The Court has been somewhat inconsistent on what this standard of review entails, but one explanation requires the law serve “an important governmental interest” and that it be substantially related to that interest.  The only other “quasi-suspect classification” (if the group of people disproportionately affected is race-based it is call a “suspect class”) officially recognized by the Court is legal distinction based on illegitimate status (i.e. bastards).

In the past the Court has declined to identify homosexuals/legal distinctions based on sexual-orientation as a quasi-suspect class, however in Romer v Evans (1996) it struck down a Colorado State Constitutional amendment which prohibited laws granting “special rights” to gay people using a rational-basis standard.  The majority said that the law served no legitimate state interest and that it was motivated by animus (ill-will) towards gay people.  In Lawrence v Texas, a law criminalizing acts of sodomy committed between two men was struck down on the grounds that it violated our constitutional right to privacy (a right whose existence was much debated).  In that decision, the Court did not address the issue of whether the law violated the 14th Amendment’s equal protection clause.

Regardless of the standard applied by the Court, proponents of Prop 8 needed to prove that it advanced some legitimate State interest.  Counsel for Hollingsworth argued (vaguely) that gay marriage was a relatively new institution and that through Prop 8 California was “putting the brakes on it” in order to see if it might have some detrimental effects on society.  Justice Scalia offered up a specific example, stating that (at least arguably) it is unclear how children raised by same-sex couples may be impacted by their unusual upbringing.  The liberal justices all argued that Prop 8 was irrelevant in this regards given that California state law allows gay couples to adopt and, moreover, it allows same-sex civil unions which are marriages in all but name.  Indeed, Prop 8 does nothing but deny same-sex unions the label of “marriages,” and it is unclear how this could serve a legitimate state interest.

There is however a very thorny issue here: if the Supreme Court were to rule that Prop 8 violates the 14th Amendment will this mean that it would have to find all State Constitutional provisions prohibiting gay marriage to be unconstitutional?  If it did so the Supreme Court would basically be ruling that gay marriages must be permitted and recognized throughout the 50 States, and I don’t believe the nine justices are ready to do that.  When counsel representing Prop 8 opponents was asked whether he believed that the Court would have to find any State’s provision against gay marriage unconstitutional, he demurred and stated that California can be distinguished in that it already allows civil unions and is thus just withholding the label “marriage.”  Several justices said that this would make an ironic basis of distinction given that it would be “punishing” California for the liberal laws it has already passed in regards to gay rights while shielding States that have no such laws from claims that their gay marriage ban is unconstitutionally discriminatory. 


Case history 
Two women were married and their marriage was recognized by the State of New York.  In 2009, one of the women died and the United States (which under DOMA §3 defines marriage as a legal union between one man and one woman and thus does not recognize the women’s marriage) assessed $360,000 in estate taxes against Windsor, the surviving member of the couple.  If the United States recognized the women’s marriage the property being taxed would be considered martial assets and Windsor would not have to pay an estate tax.

Windsor filed suit against the United States in Federal District Court (SDNY) alleging that DOMA violated her constitutional right to equal protection under the law.  (It is interesting to note that the 14th Amendment only applies to the States and not to the federal government.  The Court has ruled however that equal protection extends to the federal government because it is incorporated into the concept of “due process” which is guaranteed by the Fifth Amendment: “Nor shall any person be deprived of life, liberty or property without due process of law.”)   

In February 2011, the Department of Justice/Obama administration announced that they would no longer defend DOMA §3 because they believed it to be unconstitutional.  However, the Obama administration also stated that it felt obligated to enforce the law until it was repealed or struck down by the high court.  At this point the House Bipartisan Legal Advisor Group (“BLAG”) petitioned to intervene in the Windsor case in order to defend DOMA.  This was allowed.  The NY State Attorney General also filed a brief in which he argued that DOMA §3 was an intrusion on the State’s power to define marriage.

On June 6, 2012 the District Court judge ruled that under rational basis review the application of DOMA §3 at issue violated Plaintiff Windsor’s constitutional right to equal protection.  An appeal was filed with the 2nd Circuit by BLAG as the “intervenor-defendant-appellant.” The United States also filed an appeal in its role as nominal defendant (despite the fact that it agreed with the lower court judgment) in order to facilitate a high court ruling on the law’s constitutionality.  The 2nd Cir panel found that despite the withdrawal of its support for DOMA, the US had a right to appeal given that it continues to enforce DOMA and a ruling on the statute’s constitutionality “will have a considerable impact on many operations of the United States.” It cited INS v. Chadha where the Supreme Court states “when an agency of the US is a party to a case in which the Act of Congress it administers is held unconstitutional, it is an aggrieved party for purposes of taking an appeal…. The agency’s status as an aggrieved party… is not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional.”  In its decision upholding the lower court ruling, The 2nd Circuit also found that homosexuals were a quasi-suspect class due to a history of discrimination and thus laws which adversely affected them were subject to “heightened scrutiny.”  The Supreme Court granted cert. 

This is an odd case given that the United States is appealing but agrees with the lower court judgment, and (as with Hollingsworth in the Prop 8 case)  the Court questions whether BLAG has standing.  In order help decide the jurisdictional issues in this case the Supreme Court appointed Harvard Law Professor Vicki Jackson as an amicus curiae to argue the position that “the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case and that [BLAG] lacks Article III standing.…”  During oral arguments Jackson reminded everyone that, despite the importance of the constitutional issue, if there is no Article III jurisdiction the Court cannot address the merits and must await another case.

Does the United States constitute an aggrieved party in this case even though it is asking the Court to affirm the lower court ruling?  Justice Kagan brought up the fact that as a result of the lower court decision the government will need to refund Windsor $360,000 and, regardless of how it feels about doing this, it is in fact a monetary injury.  But Jackson points out that the US is not asking the Court to remedy this injury and that this “injury” is exactly what it asked the lower courts to produce.  On a related note, Jackson suggested that there is no adversity here as the US and Windsor are both in agreement and they both agree with the lower court’s decision.  

The US is asking the Court to decide the question of DOMA’s constitutionality because, although the DOJ believes it is unconstitutional, the government continues to enforce the statute “out of respect for the Congress that enacted the law and the President who signed it and out of respect for the role of the judiciary in saying what the law is.” Moreover, the validity of DOMA §3’s definition of “marriage” affects 1,100 federal statutes which use the word.  Justice Kennedy for one questioned why the Executive does not just quit enforcing the law if he believes it is unconstitutional while Justice Breyer suggested that the US here was no different from a trustee who feels a fiduciary obligation to carry out some provision of the trust whose validity is in dispute.  

In light of the fact that the US’s main interest here is a Court ruling on DOMA’s constitutionality, and if one accepts that there is no adversity, this begins to look less like a case or controversy and more like a request for an advisory opinion.

In regards to BLAG’s standing, the Court questioned whether the House of Representatives has a right to step in to defend an Act of Congress when the DOJ refuses to do so.  Breyer asked what interest legislators have in the case beyond “a public action to vindicate the interest of the law being enforced” (comparable to any other “citizen suit”) which is not recognized under Article III.  Several justices questioned whether the House acting on its own has the authority to intervene to defend a statute, and whether BLAG (a group formed by the leadership of the House’s Republican majority) duly represents the House.  BLAG is represented before the Court by Paul Clement, the ex-solicitor general who also argued the case against Obamacare.  Clement argued that the House has (or should have) the authority to stand up and defend a statute in the rare cases when the Executive branch refuses to do so, and he points to a House resolution vote in January authorizing BLAG to continue to represent the House’s interests in this case. 

There was some discussion of the standard of review to be applied for equal protection cases where homosexuals are the affected class.  Solicitor General Verrilli argued that given the history of discrimination gay people should be considered a quasi-suspect class and intermediate scrutiny should be applied.  In response to this, Kennedy suggested that rather than deciding this “fundamental question about equal protection” the Court should determine whether the statute is valid under rational-basis review or if there are other grounds for invalidating it.  Justice Kagan stated that “we have a whole series of cases which suggest the following… when Congress targets a group that is not everybody’s favorite group in the world… we look at those cases…—even if they’re not suspect—with some rigor to say…do we think that Congress’ judgment was infected by dislike, by fear, by animus….”  Clement and Breyer referred to this standard as “rational basis plus.”

Clement struggled to name legitimate state interests served by DOMA §3.  He suggests we look at the time at which DOMA was passed, around the time the State of Hawaii was legalizing gay marriage, and says that Congress was concerned about the issue of whether other State’s would need to give same-sex marriages full faith and credit and about the other States and the Federal government “borrowing” Hawaii’s new definition of the “age-old institution” of marriage.  Thus Congress wanted to “take a timeout” and passed DOMA in order to adopt a “cautious approach.”  Most of this argument really speaks more to DOMA §2 which provides that other States will not be required to give full faith and credit to same-sex marriages.

In regards more specifically to DOMA §3, Clement suggested it was passed because (a) prior to 1996 whenever Congress had made reference to marriage in its laws it had in mind the traditional definition of marriage and did not foresee the extension to same-sex couples and (b) that this was passed in order to promote uniformity and a uniform definition of marriage particularly in regard to the provision of Federal benefits.  The Solicitor General and counsel for Windsor both argued that the Federal government had always relied on the state definition of marriage.  Justice Kennedy in particular thought that DOMA §3 raises Federalism issues as Congress was usurping “what has always thought to be the essence of State police power”—the power to regulate marriage.  Ginsburg noted that with regards to States that recognize gay marriage, DOMA §3 dilutes the States’ decision in that Federal benefits and all the Federal laws that affect married people would not apply to these same-sex marriages (creating a “skim milk” version of marriage).  Breyer pointed out that even prior to the advent of gay marriage there was no uniformity in that the various States have different laws regarding marriage (age, residency requirements), and he stated the opinion that for Congress to refuse to recognize a portion of the people married according to the laws of their State on any basis (e.g. denying married status to couples under the age of 18) would be arbitrary.

Clement points out that DOMA §3 only affects the definition of marriage for the purpose of federal law and thus claims it does not infringe on State power.  Supporting this line of reasoning, Alito suggested the government could have replaced the word “marriage” in federal laws with something like “certified domestic unit” and then defined the term however it wished: if that would not raise federalism issues why should the use of the word “marriage” change anything?  Ginsburg and Breyer both note how the 1,100 federal laws which reference marriage do not just involve benefits but touch on every aspect of people’s lives.

Finally there’s the issue of animus and the suggestion that that was the true motivation behind the statute.  In regards to the passage of DOMA there’s a statement in the House Report that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”  That seems pretty damning, but Clement points out that things written in the Congressional record are not dispositive in determining Congress’ rationale in passing a bill into law.  Did all the Congressmen and Senators who voted for DOMA necessarily agree with that statement?  On the other hand, Verilli at one point notes that the statute is not called the “Federal Uniform Marriage Benefits Act” but rather the Defense of Marriage Act.  This too might speak to Congress’ motive in passing the law: weakening Clement’s uniformity argument, perhaps supporting Kennedy’s suggestion that the law is a federal usurpation of the State’s power to regulate marriage and may even be seen as further evidence of the animus suggested by Kagan and Congress’ desire to “express moral disapproval.” 

I very much doubt the Court in Hollingsworth is going to issue an opinion that would open the door to invalidating all laws against gay marriage (and thus conversely making gay marriage the law of the land).  The Court might dodge the bullet by stating that Hollingsworth has no Article III standing (as far as the counterargument that proponents of ballot initiatives must have the right to defend their provision when the State fails to do so, the Court could say that this may be allowed in State courts but not the federal judicial system).  Another available option would be for the Court to invalidate Prop 8 but distinguish California’s situation from that of other States based on its allowance of same-sex civil unions, etc. (but would this distinction really hold back the floodgate?).  

As far as upholding Prop 8, it doesn’t seem as though Hollingsworth or Scalia did a very convincing job of identifying a legitimate state interest.  The Court could perhaps cite issues of federalism and say that the individual States have always had power (and thus have a legitimate interest) over regulating and defining the institution of marriage.  This argument could perhaps stand up to rational basis review at the very least.  And, on another practical/policy note, the fact that this was a ballot initiative passed by the State’s voters (as opposed to just a law enacted by the legislature) might also be a factor weighing in support of upholding the law.  

In oral arguments for Windsor, the justices all sounded skeptical on the questions of jurisdiction although one should not presume that the Court’s final opinion on an issue can be garnered by the questions asked during oral arguments.  Kagan’s argument that the government ought to be considered an aggrieved party for purposes of Article III by virtue of monetary injury resulting from the lower court rulings, as well as Breyer’s analog between the US in this case and a trustee who feels a fiduciary duty to enforce a debatable provision (and who thus has a vested interest in having its validity determined) are both somewhat persuasive.  As for BLAG’s standing, there seems to be some precedent for the House intervening in suits to defend a statute although the manner in which BLAG was formed and authority was delegated seems irregular.

Assuming the Court decides this is a valid Article III case, it sounds as though five of the justices are ready to strike down DOMA §3 .  The four liberal justices (Breyer, Sotomayor, Kagan and Ginsburg) all expressed disapproval, and Justice Kennedy (often thought of as the “tie breaker”) seemed to be seriously concerned with the federalist issues raised by the law (e.g. usurping the State’s traditional prerogative to regulate marriage).  He also appeared to reject the uniformity argument and to be impressed with the broad scope of the 1,100 federal laws affected by the DOMA §3 definition.  

It’s unclear where the Court stands, or whether it will even address, the issue of the standard of review for equal protection cases where gay people are the affected class.  In these cases (as in Romer v Evans) the Court seems to seriously question whether these laws that discriminate against gay people serve any valid State interest or whether they are motivated by animus.  In practice if not in word, this may seem a little more stringent than rational basis scrutiny and amounts to rational basis+.  As to whether based on a history of discrimination gays are to be considered a quasi-suspect class justifying heightened/intermediate scrutiny, as Kennedy suggests in Windsor the Court can probably decide these cases without reaching that more fundamental question.

Friday, March 22, 2013

Infernus Stradani

In an earlier post on Francesco de Medici, I mentioned one of the paintings commissioned for his private chamber called The Alchemist's Laboratory; this is the work of a Flemish-born artist who lived most of his life and produced most of his work in Florence under the patronage of the Medici court.  In Flanders he was christened Jan van der Straet (or perhaps van der Straat, 1523-1605), but in Florence his name was Italianized and he became Giovanni Stradano.  Meanwhile, internationally, he was known to many by the Latin "Stradanus."

The names of other noteworthy Renaissance figures went through similar transformations: the Danish-born scientist Niels Stensen (1638-1686) was known as "Niccolò Stenone" at the court of Ferdinando II (the fifth Medici Grand Duke), and we all call the Polish astronomer "Copernicus" (1473-1543).  Meanwhile the Genovese navigator Giovanni Caboto (c1450-c1499) called himself "John Cabot" when he convinced Henry VII of England (Henry Tudor, 1457-1509) to finance his exploration of the New World accidentally discovered by his more famous countryman "Cristobal Colon" (1451-1506).

I recently came across Stradanus' name again: in addition to the two panels in Francesco's studiolo, Stradano also produced a great many prints including a set of illustrations for Dante's Divine Comedy.  Here are a few of my favorites from the Inferno:

Canto II: Beatrice calls upon Virgil

Map of Lower Hell
Canto IX: Virgil argues with the truculent demons at the Gates of Dis

Canto 34: Behold the King of Hell
Images all taken from wikimedia commons where you can find more of Stradano's illustrations.

Tuesday, December 18, 2012

Why Laokoön doesn’t scream

Laokoön is a Trojan priest of Poseidon mentioned at the beginning (Book II) of the Aeneid.   Of all the Trojans, Laokoön was most wary of the wooden horse left behind by the Achaean army, and Virgil has him speak the warning from which derives the immortal phrase “Beware of Greeks bearing gifts.”  A 2002 translation of the Aeneid by A.S. Kline renders Laokoön’s speech thusly:
…O unhappy citizens, what madness?
Do you think the enemy’s sailed away? Or do you think
any Greek gift’s free of treachery? Is that Ulysses’s reputation?
Either there are Greeks in hiding, concealed by the wood,
or it’s been built as a machine to use against our walls,
or spy on our homes, or fall on the city from above,
or it hides some other trick: Trojans, don’t trust this horse.
Whatever it is, I’m afraid of Greeks even those bearing gifts.
To underscore his point, the priest then drives a spear into the horse’s side.  Soon after, Laokoön and his two sons are strangled to death by a pair of giant sea serpents-- sent by Pallas Athena to punish him for defiling the sacred offering (or maybe just to shut him up).  Virgil describes his finals moments:
He strains to burst the knots with his hands,
his sacred headband drenched in blood and dark venom,
while he sends terrible shouts up to the heavens,
like the bellowing of a bull that has fled wounded,
from the altar, shaking the useless axe from its neck. 
Besides the Aenead, the most famous depiction of Laokoön and his sons is a marble tableau of their last moments which can be found at the Vatican museum.  Pliny the Elder (AD 23-79) refers to this work of art in Book XXXVI of his Historia Naturalis (discussing the natural history of stones).  He writes that the statue-- then housed in the palace of the Emperor Titus-- was carved from a single block of marble by three sculptors from the island of Rhodes named Agesander, Polydorus and Athenodorus; he calls it “a work that may be looked upon as preferable to any other production of the art of painting or statuary” (1906 translation by Karl Mayhoff).

Laokoön and His Sons on display at the Museo Vaticano (photo by Marie-Lan Nguyen found on wikipedia in public domain)
Throughout the centuries, numerous writers have been inspired by the story of the unfortunate priest, and many more-- perhaps influenced by Pliny’s high praise-- have written on the classical sculpture of Laokoön and His Sons (often referred to as “the Laokoön group”).

Italian poet Giacomo Leopardi (1798-1837),  in a passage from the Zibaldone (his journal of thoughts) probably written in 1819, mentions Laokoön as a representation of ancient suffering.  Consistent with his philosophical outlook at the time, Leopardi wrote that the ancients experienced misfortune differently than modern man.  They suffered more profoundly because they believed that happiness was attainable and that injustice, catastrophes, illness, injuries and bad luck were avoidable or unnecessary obstacles cutting them off from that happiness.  Meanwhile, modern man recognizes that suffering is inevitable and this lessens the pain of misfortune.  Indeed, Leopardi talks of modern man’s sweet surrender to tragedy, and he claims that even the sadness of a mother who loses a child might be bittersweet-- whereas for an ancient woman there was only despair and anguish.  Leopardi tells us that the difference stems from the fact that the ancients existed in a more natural state: they did not feel that they were living in the shadow of death.  Elsewhere, Leopardi wrote that the myths of the ancients hid from them grim reality.  But, modern man lives in the Age of Reason.  Thus “…the evolution of  sensibility and of melancholy  has come about above all due to advances in philosophy, in our knowledge of man, and the world, and the vanity of things and human suffering, knowledge that indeed produces this unhappiness that in nature man should never have known”(pp.78-79).

Another unique take on Laokoön is given us by William Blake (1757-1827), the mystical English poet/artist.  In 1826-1827, he completed a print where a detailed illustration of Laokoön and His Sons is surrounded by a jumble of text and labeled infra as “Jah and his two Sons Satan & Adam as they were copied from the Cherubim of Solomon’s Temple by three Rhodians & applied to Natural Fact or History of Ilium.”  Some of the writing above the illustration reads “Where any view of Money exists Art cannot be carried on, but War only” and “He repented that he had made Adam (of the Female, the Adamah [Adamah = earth]) & it grieved him at his heart.”  

Copy B of Laocoön by William Blake from private collection (larger image with notes on text found on wikisource)

But what I would like to focus on is Section 46 (Volume I, Book 3) of Schopenhauer’s World as Will and Representation (first edition 1818, second edition 1844) in which he attempts to answer the question “why Laokoön doesn’t scream.”   Here the philosopher does not refer to the legendary priest himself (for, as we can see supra, Virgil tells us that Laokoön wailed like a bull who was the victim of a botched sacrifice); rather he is talking about the famous marble trio of Laokoön and His Sons.  The pained expression on the father’s face might be interpreted as betraying the last reserves of physical strength he is employing in his vain attempt to free himself and his progeny, or the depletion of that strength and the realization that all is lost.  Whatever it is meant to convey, it is clear from looking at his half-opened mouth that he is not emptying his lungs in response to the torture he is enduring or letting loose that cry of anguish at the gratuitous punishment aimed at his family by the vengeful goddess.  Returning for a second to Leopardi, in the same entry cited above (on p.77), the poet writes that those ancients who suffered tragedies were seen as having incurred, in some way, the wrath of the gods, and thus they were likely to be shunned rather than pitied.

Before sharing his reasoning for why Laokoön isn’t shown screaming, Schopenhauer (1788-1860) gives us an overview of answers suggested by other authors.  A great many German writers of the late 18th-early 19th century penned treatises on the Laokoön group within the context of a larger conversation on aesthetics and the artistic ideal. 

Schopenhauer starts with Johann Winckelmann (1717-1768), the author of a seminal work in the study of Classical and ancient art, published in 1764, called Geschichte der Kunst des Alterthums (History of Art of Antiquity).  Winckelmann claims Laokoön is an example of the ancient hero who nobly, stoically struggles against any outward expression of his pain.  This choice in artistic representation has been praised in other contexts (e.g. in regards to drama) as heightening pathos; we are more deeply moved by the character who does not cry but attempts to hold back her tears.  Schopenhauer, however, rejects this explanation for Laokoön’s silence.  As he puts it:
 …we would all scream in his situation; and so nature in fact demands.  For with intense physical pain and the sudden onset of the greatest bodily anxiety, all reflection, which might possibly induce a state of silent endurance, is entirely suppressed from consciousness, and nature gives vent to itself through screaming; thereby, it simultaneously expresses pain and anxiety, summons the rescuer, and terrifies the attacker. [all translations of Schopenhauer come from World as Will and Presentation, trans. Robert E. Aquila, Pearson: 2008.]
Gotthold Lessing (1729-1781) also argues against Winckelmann’s suggestion, in his 1766 work entitled Laokoön: An Essay on the Limits of Painting and Poetry (translation by Sir Robert Phillimore, Bart.).  As evidenced in numerous poems, plays, & co., the Greeks and Romans did not view cries and screams as ignoble; rather they recognized screaming as a natural reaction to bodily pain.  Lessing explains that the reason the sculptors did not depict Laokoön screaming (as did Virgil) comes down to a fundamental difference between poetry and painting/sculpture.  In the plastic and pictorial arts, beauty trumps all.  Thus the depiction of agony must be softened so as not to mar classical beauty with the hideous distortions we would see on the face of a man whose mouth is wide open, in the midst of a howl.  In the visual arts, says Lessing, it is the combination of beauty and suffering  which excites our sympathies.  On a related note, Lessing claims that a scream is a fleeting act and that rendering such a transitory action as static and permanent in a sculpture is displeasing.  To scream is natural, but a Laokoön frozen mid-scream for all time might appear ugly, womanish or comical.

In contrast to this last claim, Schopenhauer cites Goethe (1749-1832) who, in 1798, also wrote a short essay “On Laokoön” (found in Goethe on Art, translated by John Gage)According to Goethe, part of what makes the Laokoön group so powerful is that-- like the flash of a camera-- it captures the trio mid-motion at a precise moment in time.  We see Laokoön  himself in the middle of performing a double action as he tries to wrestle free from the snake and to simultaneously avoid being bitten.  We can see the head of a serpent at his side, and Goethe claims the sculpture captures the exact moment that the serpent bites into his flesh.  Thus the contortions of Laokoön’s body may further represent the body’s reflex reaction to the sharp pain.  Another reason the group is so exceptional, in Goethe’s eyes, is that it brings together the depiction of corporeal and intellectual pain.  In Laokoön’s face, Goethe sees “inquietude, fear, terror, paternal affection… .”  Goethe himself does not address the issue of why Laokoön isn’t screaming, but his treatment suggests it may be because the priest hasn’t had time to scream yet or that the contorted position of his body would not allow it.  He might also say that the sculptors chose an expression which connotes a more complex range of emotions.

A third explanation is given by Alois Hirt (1759-1837), an art historian also mentioned by Hegel in his Lectures on Aesthetics (given between 1818-1829).  Hirt’s theory is that art should depict the “Charakteristischen,” which according to Hegel means representing that which is essential to its subject and excluding anything superfluous.  Regarding Laokoön , Hirt says he doesn’t scream because he is depicted at the moment of his death.  If there was any screaming it’s over now, as he succumbs to asphyxiation or venom.

Schopenhauer’s thoughts are closest to Lessing’s.  According to him, Laokoön  does not scream because the essence of a scream is in the sound.  “One could not produce a screaming Laokoön  from marble, but only one with his mouth agape and fruitlessly endeavoring to scream, a Laokoön  whose voice remains stuck in his throat….”  If it were possible to capture the essence of a scream, then depicting the mouth thrown open and the distortion of facial features that go along with it, would be allowed (if not required), but, as it stands, in the plastic and pictorial arts, the representation of a scream is “entirely foreign and impossible.”  Thus, it would make no sense for the sculptor to sacrifice beauty while “…the screaming itself, along with its effect  on one’s spirit, remains absent.”   
The Scream by Edvard Munch, copies on display Norwegian National Museum and Munch Museum both in Oslo (image of National Museum copy found on wikipedia)
Schopenhauer’s assertion that representing a scream in painting or sculpture is impossible probably brings to mind the work of the Norwegian artist Edvard Munch (1863-1944) which he entitled The Scream of Nature and which is commonly referred to as simply The Scream (1893).  Does this Expressionist painting capture the essence of a scream on canvas?  It would make for a good story if Munch intended his work to be an answer to Schopenhauer’s challenge, however Munch himself stated that he did not read Schopenhauer until years after he composed his Scream.