Qualms about the Little Sisters case

It is, of course, great news that a unanimous Supreme Court vacated lower court decisions that would have allowed the federal government to use the insurance plans of some religious organizations to advance its purpose of disseminating free contraceptives. This despite the organizations’ objection that requiring them to participate in the scheme was inconsistent with their religious belief.

So the court’s decision means the groups will not have to pay the crippling fines for failing to comply with the government’s demands. This is good.

Still, there are reasons for some misgivings.

To review, the basic legal question in the case is whether the government regulations applied against the Little Sisters of the Poor and other groups violated the federal Religious Freedom Restoration Act. That law provides that when the government’s actions create a substantial burden on religious practice, the government has to show that the burden is justified by a compelling government interest and that the government has chosen the “least restrictive means” of advancing that interest.

In other words, in the case, the religious groups would have to show that their religious exercise is burdened by the requirement that they initiate the process of providing contraceptives to their employees. If they succeed, the government would then have to show that it had a compelling interest in increasing access to contraceptives (as an aside, has there been a dearth of birth control use lately?) and that there was no other way to accomplish that goal that would avoid the religious liberty violation.

In its decision, the Supreme Court declined to decide any of these legal questions. To be sure, it nullified the lower court decisions on these points, but all of these questions can be raised again.

This procedure was brought on by the court’s somewhat novel approach to resolving the dispute without deciding the legal issues. After the government and the religious organizations had made their submissions to the court, the court raised, on its own, an alternative regulation and asked the parties to hypothetically respond whether the court’s approach would avoid the problems with the case.

Here’s where the misgivings arise:

  • Shouldn’t the creation of substantive legal rules come from the legislature? Or, at least if, as here, the legislature is unwilling and wants to punt that responsibility to the agencies, to those with that specific governing role?
  • Since, the government conceded that the court’s hypothetical would have worked and the religious groups accepted it, wouldn’t that fact alone have established that there was a less restrictive way of accomplishing the government’s aim and thus have established that there was likely a violation of RFRA in the government’s broader approach?
  • Isn’t the court’s role to apply existing law to specific disputes, rather than to create new law?
  • Is it the court’s role to snatch victory from the jaws of defeat for the administration?
  • Relatedly, should the court take on the role of becoming a legal adviser to the government, proposing ways it can make its regulations comply with existing law?
  • Are court decisions unnecessarily impacted by political realities that ought to be excluded from its considerations?

In the supplemental briefing, the parties did agree (though the government only grudgingly) that the court’s hypothetical regulation would work as a compromise. So now, as the Supreme Court has sent the cases back to the lower courts, the case could presumably settle out to the satisfaction of everyone.

The only sticking point is the government’s willingness to cooperate. Because the court did not decide the legal issues, the government could theoretically start making its same arguments all over again. Hopefully, the government will cooperate and the dispute will be resolved. Given how doggedly it has pursued this litigation despite the exceedingly low stakes for the government (since it has been free with exemptions to the mandate for other employers), we can be excused for worrying.

But even in the scenario when the specific conflict is resolved, nagging worries about the shifting role of the courts will remain.

Why legal effects of marriage case matter to everyone – Sutherland Soapbox, 3/17/15

scalesThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

At the end of April, the U.S. Supreme Court is scheduled to hear arguments about whether states may retain the definition of marriage as the union of a man and a woman or whether they must redefine marriage to include same-sex couples. All of the legal briefs (an oxymoron, given the number of trees that have to die to allow a lawsuit to move forward) in favor of same-sex marriage have been filed. Around 70 different parties have piled on in favor of same-sex marriage.

From the arguments that have already been presented to the court, two themes are prominent. One is that the state marriage laws should be struck down because they are motivated by animus. The other is that any legal classification that could impact a person based on the new legal category of sexual orientation has to be treated in the same way the courts would treat classifications in the law based on race.

The animus argument is a tricky one because it requires the challengers to prove that the millions of voters who voted in favor of marriage laws being challenged were acting out of some motive of ill will or spite. Even assuming such an accusation could possibly be true, it is hard to imagine what kind of evidence could be brought to establish such a claim.

Of course, it is obvious that voters will have had many reasons for supporting marriage quite apart from any hostility towards any group or individual.

To get around this problem the legal argumentation has focused on a novel understanding of hostility: It is not, the argument goes, that voters necessarily were acting from bad motives but that the laws have the effect of creating disadvantage for a group of people here by not allowing them to get the political result they would have wanted and the mere fact that some were disappointed by the results in an election is enough to show that they are the victims of hostility.

The advantage of this departure from the plain meaning of the concept of animus for those challenging the marriage laws is that they don’t have to show hostility for the court to determine there was hostility. In fact the argument allows for non-hostile hostility. Showing this kind of animus only means convincing a court that a law creates a disadvantage for you (including a sense that your dignity is being impugned).

The second argument urges the court to decide that any law that arguably creates a disadvantage for people based on “sexual orientation” has to be treated the same as a law that denies a group of people a right or benefit because of their race. This is a far-reaching result because it would have the effect of branding those who believe that marriage should continue to be understood as the union of a husband and wife (and the correlated belief that children are entitled to be reared by a married mother and father) as morally equivalent to racists.

In one swoop, not only is the question of whether same-sex couples can access marriage licenses resolved, but the Court can also lend its support to the idea that any disagreement with new norms of sexual morality drastically at odds with those held by nearly every society throughout time, and still by the vast majority of the world’s religions, is out of bounds.

Now those who have read the actual Constitution might be confused at this point. Where does it talk about animus or sexual orientation? Read more

How marriage law has shifted in 35 years

Wedding ringsIn many family law textbooks, two cases from the 1970s are juxtaposed.

The first is a 1976 California decision, Marvin v. Marvin, in which the California Supreme Court considered a claim by a woman who had cohabited with a celebrity (during part of the time of their cohabitation he was married to another woman) that she was entitled to a share of his property on the theory that they had entered a marriage-like agreement which required him to support her in the event they separated. The court decided: “The fact that a man and woman live together without marriage, and engage in a sexual relationship, does not in itself invalidate agreements between them relating to their earnings, property, or expenses.”

At the end of its decision, the court talked about the policy implications of its decision at some length:

[W]e believe that the prevalence of nonmarital relationships in modern society and the social acceptance of them, marks this as a time when our courts should by no means apply the doctrine of the unlawfulness of the so-called meretricious relationship to the instant case. As we have explained, the nonenforceability of agreements expressly providing for meretricious conduct rested upon the fact that such conduct, as the word suggests, pertained to and encompassed prostitution. To equate the nonmarital relationship of today to such a subject matter is to do violence to an accepted and wholly different practice.

We are aware that many young couples live together without the solemnization of marriage, in order to make sure that they can successfully later undertake marriage. This trial period, preliminary to marriage, serves as some assurance that the marriage will not subsequently end in dissolution to the harm of both parties. We are aware, as we have stated, of the pervasiveness of nonmarital relationships in other situations.

The mores of the society have indeed changed so radically in regard to cohabitation that we cannot impose a standard based on alleged moral considerations that have apparently been so widely abandoned by so many. Lest we be misunderstood, however, we take this occasion to point out that the structure of society itself largely depends upon the institution of marriage, and nothing we have said in this opinion should be taken to derogate from that institution. The joining of the man and woman in marriage is at once the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime.

Read more

Parents’ rights: Integrating rights and responsibilities

Family beachThe U.S. Constitution is understood to protect the ability of parents to direct the upbringing of their children, free from state interference. That formulation derives from a pair of cases from the 1920s involving disputes over education.

In Meyer v. Nebraska, the Supreme Court invalidated a Nebraska law that prohibited instruction in schools from being provided in German. Among other reasons, the U.S. Supreme Court said the law interfered with parents’ right to choose the way their children were educated.

Then, two years later, the Court struck down an Oregon ballot initiative (inspired by nativist groups who wanted to ensure social uniformity) that required all children to attend public schools (Pierce v. Society of Sisters).

These decisions include the most important legal treatments of the idea of parents’ rights.

The Meyer decision noted: “Corresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life.” The court contrasted ancient ideas of a far different nature:

For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide: “That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent. . . . The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.” In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution.

The Pierce Court neatly explained the alternative understanding of liberty that prevailed in the United States:

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

To the Meyer and Pierce courts, rights and responsibility are integrated in the very nature of things. Read more

6th Circuit marriage decision is powerfully protective of liberty – Sutherland Soapbox, 11/11/14

Wedding ringsThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post. 

Last week’s decision of the U.S. Court of Appeals for the Sixth Circuit has thrown a wrench in the “inevitability” of a national mandate of gender-neutral marriage. The conventional wisdom after the U.S. Supreme Court declined to hear the marriage cases in Utah and a handful of other states was that the issue was over. The confident prediction was of the eventual triumph of the (misplaced) idea that the U.S. Constitution prohibits states from recognizing in their laws that marriage is the union of a complementary set of a wife and a husband.

Now that the federal courts in at least one region of the country are bound to respect voters’ beliefs about the meaning of marriage, there will likely be an attempt to get the Supreme Court to force all the states to get in line. But this split in the Appeals Courts also provides the Supreme Court an opportunity to do the right thing and allow marriage to reflect the principle that children deserve to be raised by a married mother and father.

The Sixth Circuit majority’s conclusion about marriage is important. The way it reached that conclusion is also critical and serves as an example of restraint and adherence to the Constitution that serves as a model for other courts.

Consider this analogy from the decision:

All Justices, past and present, start their assessment of a case about the meaning of a constitutional provision by looking at how the provision was understood by the people who ratified it. If we think of the Constitution as a covenant between the governed and the governors, between the people and their political leaders, it is easy to appreciate the force of this basic norm of constitutional interpretation—that the originally understood meaning of the charter generally will be the lasting meaning of the charter. When two individuals sign a contract to sell a house, no one thinks that, years down the road, one party to the contract may change the terms of the deal. That is why the parties put the agreement in writing and signed it publicly—to prevent changed perceptions and needs from changing the guarantees in the agreement. So it normally goes with the Constitution: The written charter  cements  the limitations on government into an unbending bulwark, not a vane alterable whenever alterations occur—unless and until the people, like contracting parties, choose to change the contract through the agreed-upon mechanisms for doing so.

This approach is powerfully protective of liberty. Rather than assuming major social controversies should be resolved by judges second-guessing the normal political process, in the absence of clear constitutional authority to do so, this approach takes seriously the written-down nature of the Constitution. Without an anchor in the text and original meaning of the Constitution, judges may invent (for however noble a motive) interpretations of the document that have the effect of “constitutionalizing” their own views of what makes “enlightened” laws. Perhaps their decisions will be accepted by others and perhaps not. But, in the process, citizens are taught, in Professor Robert Nagel’s words, “the scary lesson that anything can be done with words” as the Court acts “like some lumbering bully, to disrupt social norms and practices at its pleasure.”

The Framers knew changes might be desirable and necessary and established a difficult but not insurmountable way to change the terms of the Constitutional charter.

The amendment process ensures deliberation by creating a slow process, requiring broader support for the change than would be required for simple legislation and by ensuring ratification by the citizens—the very ones who will be affected by the change.

In the Sixth Circuit decision, one judge dissents and calls the amendment process impractical. If “impractical” means “difficult,” then, yes, that’s precisely the point. Having a fundamental charter that’s consistent and predictable is the very essence of the rule of law. Preventing novel changes to the charter being made on a whim or by handful of appointed officials is a feature, not a bug of our constitutional system.

For Sutherland Institute, I’m Dave Buer. Thanks for listening.

Receive this broadcast each week directly to your iTunes by clicking here


Below are some further highlights from the court’s decision:

What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty- assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.

Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee. What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?


Applied here, this approach permits today’s marriage laws to stand until the democratic processes say they should stand no more. From the founding of the Republic to 2003, every State defined marriage as a relationship between a man and a woman, meaning that the Fourteenth Amendment permits, though it does not require, States to define marriage in that way.


A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States. Hesitant, yes; but still a rational basis, some rational basis, must exist for the definition. What is it? Two at a minimum suffice to meet this low bar. One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them?  Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.


To take another rational explanation for the decision of many States not to expand the definition of marriage, a State might wish to wait and see before changing a norm that our society (like all others) has accepted for centuries. That is not preserving tradition for its own sake. No one here claims that the States’ original definition of marriage was unconstitutional when enacted. The plaintiffs’ claim is that the States have acted irrationally in standing by the traditional definition in the face of changing social mores. Yet one of the key insights of federalism is that it permits laboratories of experimentation—accent on the plural—allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time.


Consider how plaintiffs’ love-and-commitment definition of marriage would fare under their own rational basis test. Their definition does too much because it fails to account for the reality that no State in the country requires couples, whether gay or straight, to be in love.  Their definition does too little because it fails to account for plural marriages, where there is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot. If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage. Plaintiffs have no answer to the point. What they might say they cannot: They might say that tradition or community mores provide a rational basis for States to stand by the monogamy definition of marriage, but they cannot say that because that is exactly what they claim is illegitimate about the States’ male-female definition of marriage. The predicament does not end there.  No State is free of marriage policies that go too far in some directions and not far enough in others, making all of them vulnerable—if the claimants’ theory of rational basis review prevails.


Neither was the decision to place the definition of marriage in a State’s constitution unusual, nor did it otherwise convey the kind of malice or unthinking prejudice the Constitution prohibits. Nineteen States did the same thing during that period. Human Rights Campaign Found., Equality from State to State 2006, at 13–14 (2006), available at http://s3.amazonaws.com/hrc-assets//files/assets/resources/StateToState2007.pdf. And if there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. If that is animus, the term has no useful meaning.

Who in retrospect can blame the voters for having this fear? By then, several state courts had altered their States’ traditional definitions of marriage under the States’ constitutions.  Since then, more have done the same. Just as state judges have the authority to construe a state constitution as they see fit, so do the people have the right to overrule such decisions or preempt them as they see fit.


In referring to “marriage” rather than “opposite-sex marriage,” Loving confirmed only that “opposite-sex marriage” would have been considered redundant, not that marriage included same-sex couples. Loving did not change the definition. That is why the Court said marriage is “fundamental to our very existence and survival,” 388 U.S. at 12, a reference to the procreative definition of marriage. Had a gay African- American male and a gay Caucasian male been denied a marriage license in Virginia in 1968, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment? No one to our knowledge thinks so, and no Justice to our knowledge has ever said so. The denial of the license would have turned not on the races of the applicants but on a request to change the definition of marriage. Had Loving meant something more when it pronounced marriage a fundamental right, how could the Court hold in Baker five years later that gay marriage does not even raise a substantial federal question? Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.


No doubt, many people, many States, even some dictionaries, now define marriage in a way that is untethered to biology. But that does not transform the fundamental-rights decision of Loving under the old definition into a constitutional right under the new definition. The question is whether the old reasoning applies to the new setting, not whether we can shoehorn new meanings into old words. Else, evolving-norm lexicographers would have a greater say over the meaning of the Constitution than judges.

Statement on 6th Circuit Court marriage decision

Wedding ringsIn a strong, well-reasoned opinion, a panel of the U.S. Court of Appeals for the Sixth Circuit has vindicated the rights of the people of those states to recognize marriage as the union of a husband and wife. It is a great victory for the principle that the U.S. Constitution allows the people of the states to recognize the obvious—that children are entitled to a married mother and father. The majority in today’s decision recognizes that nothing in the meaning of the Constitution requires a redefinition of marriage. It recognizes that it is rational for states to recognize the differences in men and women as it relates to children’s needs, that voters retaining marriage laws were not acting out of animus, and that the right to marry recognized by previous cases does not create a right to change the meaning of marriage.

Surely appeals will follow this decision and the final outcome is still in the future, but it is heartening to have an example of federal judges who recognize the scope of their powers and are willing to allow the people of their states to exercise self-determination by defending the rightful inheritance of children—a sign of a society that takes seriously all children’s entitlement to a mother and father.

Take the long view of court’s (non)decision on marriage — Sutherland Soapbox, 10/7/14

Sea_beach_cliff_2004_ubtThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. 

Utah’s marriage law, and a measure of its self-determination, has now been wiped out by the inaction of the U.S. Supreme Court. As you’ve no doubt heard, that court yesterday [Oct. 6] turned back petitions from Utah and four other states whose marriage laws had been struck down by lower federal courts.

Thus, as Justice Kennedy said, to the edge of the cliff we go. Just 18 months ago, during the Hollingsworth v. Perry Prop 8 case, Justice Anthony Kennedy wondered if the court, or anyone, knew what it needed to know to decide the same-sex-marriage question. Kennedy said, “The problem in the case is that you’re really asking … for us to go into uncharted waters . . . it is a cliff.” Apparently, a little more than 18 months on, the court believes the country is ready to go over that cliff and into those uncharted waters.

After hearing oral arguments in that same Perry case, Notre Dame Law School’s Gerard Bradley described what happened:

Justice Alito looked for “data” on this “institution which is newer than cell phones.”   Same-sex marriage, he said, might turn out to a “good thing”, or “not”, as Proposition 8 supporters “apparently believe.”  Justice Scalia said that there is no “scientific answer” to the decisive “harm” question at this time.”  Justice Sotomayor asked the Solicitor General: why not “let[] the States experiment” for a few more years, to let society “figure out its direction.”

That’s a sample of what they were thinking 18 months ago. It’s impossible to know what precisely the justices were thinking yesterday. One possibility is that one or more of the conservative justices on the court voted not to hear any of the cases because they knew the liberal justices, along with Justice Anthony Kennedy, were poised to make gay marriage the law of the land. Another possibility could be that some justices might have approved of the policy result but just hoped to spare the court of doing the “dirty work” that the circuit courts seemed willing to do.  Read more

Statement on Supreme Court’s refusal to hear marriage case

Children are entitled to be raised by a married mother and father. Sutherland Institute is deeply disappointed that the Supreme Court has failed to correct the lawlessness of lower courts that have deprived the people of Utah and other states of their ability to protect that entitlement.

While it appears that Utah is being forced by the federal courts to recognize same-sex marriages, there are still other states whose laws the courts have not yet disrupted. We will provide whatever support we can to those states and hope the Supreme Court will reconsider this unwise action in a future case.

Hobby Lobby horrors? Not exactly

GavelLegal writing can be dense and overly technical. Perhaps that’s why there persists some confusion about the effect of the Hobby Lobby decision issued by the U.S. Supreme Court. It did not help that the dissent in the case included some irresponsible charges about the majority decision. Indeed, the dissent’s worry that the decision would have a broad effect seems to have captured some adherents against all reason.

As an example, after the decision was issued a reporter asked if we could expect to see employers stop covering contraceptives in their employee health benefits. I tried to explain that even a cursory look at the facts and reasoning of the decision would make clear that it could only apply to a very small set of employers—they would have to be running a closely held corporation (such as a family-owned business), would have had to have a sincere religious objection to extending the coverage (and an employer that had been covering these for years and only now decides to object would have a hard time demonstrating a sincere objection). Plus, the case involved only objections to a small number of drugs that could result in an abortion.

This confusion appears to be at the root of some of the comments on the news that a federal judge in Utah had ruled that the federal government cannot compel testimony where doing so could violate the religious beliefs of a person.   Read more

Not so fast: Federal judge says Constitution doesn’t require redefining marriage

We_The_PeoplePerhaps the most powerful argument for same-sex marriage has been that it is “inevitable.” It’s powerful because it contains an implicit threat: If you think there is something unique and uniquely valuable about marriage between a husband and wife — you are on the wrong side of history and your views will soon be treated as unacceptable with the possibility of your livelihood being at risk.

This argument has gotten some fuel lately from a couple dozen federal and state court decisions ruling that the U.S. Constitution requires each state to redefine marriage to include same-sex couples. These courts have reasoned that when the U.S. Supreme Court last summer was silent on whether states could retain their marriage laws it really meant to signal that the states were actually not allowed to define marriage as the union of a husband and wife.

A common rhetorical point made by advocates of redefining marriage is that same-sex marriage is enjoying a streak of unbroken successes in the court.

That contention is no longer available, since Wednesday a federal court in Louisiana handily rejected the argument that redefining marriage is required by the Constitution. Most readers can be excused for not knowing about this development since it’s not getting much high-profile press coverage (as the decision would have if it had gone the other way). Read more