One year after the Deepwater Horizon explosion and oil spill, the job of cleaning up the Gulf coast still faces daunting challenges. So too the job of compensating the victims of this environmental disaster: tens of thousands of people whose lives and livelihoods have been damaged by the oil that has fouled beaches and spoiled valuable fisheries.
Despite the challenges, the victims of the Gulf oil spill have one thing going for them: public and political pressure on BP, operator of the doomed rig, to make the victims whole as best it can. Under pressure from politicians from President Obama down, BP pledged $20 billion to a victim compensation fund to be administered by a respected lawyer, Kenneth Feinberg. The process has been controversial, but in advance of the one-year anniversary [April 20] Feinberg was making a maximum media effort last week to answer criticisms and to renew the commitment on BP’s behalf to do the right thing.
A month earlier, another corporate giant, Wal-Mart Stores, faced a critical Supreme Court showdown in a lawsuit brought on behalf of women employees who claim they are victims of a long-standing “pattern and practice” of illegal sex discrimination in regard to pay and promotions. Wal-Mart’s purported victims got some support from civil rights and women’s rights groups, but the company has been spared avoided the kind of public and political pressure that BP is experiencing.
Instead, Wal-Mart, the nation’s largest private employer, has managed to depict itself in court and in the public mind as a victim itself. In legal filings, and in arguments at the high court (March 29), Wal-Mart’s lawyers maintained that a company with $419 billion in sales last year faces the risk of “devastating” financial liability from what they and an array of business groups supporting the company insist on calling a “gargantuan” class-action lawsuit.
Ten years after the lawsuit was filed, the plaintiffs’ allegations and Wal-Mart’s substantive defense have yet to be fully aired in a courtroom. Instead, lawyers on both sides have spent a staggering number of hours on a preliminary but crucial issue: whether to certify the suit to be tried as a class action on behalf of as many as 500,000 women currently working for Wal-Mart. (Wal-Mart’s lawyers refer to 1.5 million potential class members, but that figure includes former employees, who have been cut out of the case for now.)
The rule authorizing class actions in federal court, Rule 23 of the Federal Rules of Civil Procedure, is forbiddingly wordy. Court decisions interpreting and applying it are similarly complex. Over the past two decades, both Congress and the Supreme Court have been making it harder for plaintiffs to bring and win these cases. Even skeptics and opponents, however, acknowledge that class actions can sometimes be the only viable legal remedy for wronged investors, consumers, or workers. And plaintiffs’ attorneys note that in some circumstances companies benefit from resolving a multitude of potential legal claims in one big proceeding instead of countless small cases.
The case that began as Dukes v. Wal-Mart takes its name from lead plaintiff Betty Dukes, who was hired in 1994 as a $5 per hour part-time cashier at the Wal-Mart in Pittsburg, Calif. By her account, she was unfairly passed over, disciplined, and demoted at various points because of the company’s ingrained mistreatment of female employees. Dukes’ case was taken on by the Impact Fund, an Oakland-based public interest law firm, and its senior counsel, Brad Seligman.
So far, Dukes’ legal team has persuaded a federal district court judge and a 6-5 majority on the Ninth U.S. Circuit Court of Appeals to allow the case to go forward as a class action. To get to that point, they presented evidence, both statistical and anecdotal, of sex discrimination in Wal-Mart’s employment practices. The statistics are stark. As of the first court ruling, in 2004, two-thirds of Wal-Mart workers were women, but women comprised only about one-third of management-level employees. A statistician found a 5 percent to 15 percent gender gap in pay for women in all 41 of Wal-Mart’s regions.
Starker still were affidavits submitted by 120 current or former employees altogether. Under oath, women from all over the country described a climate of sexism and gender stereotyping that demeaned them day by day and limited their pay and advancement. Some described being told that they were being paid less than male workers because men needed extra money to support families. One woman who complained about sex discrimination said she was fired after contacting the lawyers in the suit.
Whether or not the case proceeds as a class action, the affidavits lay out tenable individual cases of illegal sex discrimination. Years later, however, the women are still waiting their day in court. And it is not yet clear when, where, or whether that day will come. Supreme Court justices appeared dubious during oral arguments about whether the case satisfies Rule 23’s somewhat rigorous requirements. If no class action is allowed, the claims may be too insubstantial, or too old, to succeed as individual cases.
As BP’s experience illustrates, mass justice is difficult and contentious under even the best of circumstances. But, as legal expert Geoffrey Hazard remarked during the early days of class actions, “mass-produced wrongs” sometimes call for a mass-produced legal remedy. The women of Wal-Mart are waiting to see whether the judicial system will be up to that challenge in their case.
Sunday, April 24, 2011
Monday, April 11, 2011
Disestablishing the Right to Religious Neutrality
A riddle, attributed to Abraham Lincoln: How many legs does a horse have if you call the tail a leg? Answer: Four. Because a tail is a tail no matter what you call it.
The Supreme Court confronted its own version of this riddle last week (April 4). Does a government subsidy to religious schools possibly violate separation of church and state if you call it a tax credit instead? In a 5-4 decision, the court said no. But the answer is as wrong as calling a horse’s tail a leg.
The court’s conservative majority reached for that wrong answer in an activist move to protect government aid to religion from taxpayer suits despite a 43-year-old precedent permitting them, Flast v. Cohen (1968). As Justice Elena Kagan explained in a powerful dissent, the new ruling “devastates” what is often the most practical legal vehicle for enforcing the Constitution’s guarantee of religious neutrality in government policy.
The ruling in Arizona Christian School Tuition Organization v. Winn turns aside an Establishment Clause challenge to an Arizona tax-credit system that funnels government money to religious schools as surely as if the government wrote the check instead of an individual taxpayer. The Arizona law, enacted in 1997, gives a participating state taxpayer a dollar-for-dollar credit of up to $500 for individuals or $1,000 for married couples for contributions to specially established “school tuition organizations” or STOs.
Those STOs provide tuition grants to students attending qualified private schools in the state. To qualify, schools cannot discriminate on the basis of race, color, national origin, handicap, or familial status. But schools can discriminate on the basis of religion.
The largest STOs, such as the Arizona Christian School Tuition Organization, limit their aid to students attending religious schools. So, much of the $350 million in tax revenue that the state has forgone over the past decade has subsidized schooling for which eligible students were excluded on the basis of religion.
That is not the American way of public education. A group of Arizona taxpayers raised that argument in a federal court suit contending that the tax-credit scheme operates to provide an impermissible government subsidy for religious discrimination. The state disagrees. It contends the program operates as neutrally as a school voucher program of the sort that the Supreme Court upheld, in another 5-4 decision, back in 2000 (Zelman v. Simmons-Harris).
In ruling on that question, a three-judge panel of the Ninth U.S. Circuit Court of Appeals found the program unconstitutionally skewed toward religious schools. The full court refused to rehear the case en banc, with eight judges dissenting.
The Supreme Court chose instead to rule on another issue: standing. Significantly, none of the appeals court judges on either side questioned the taxpayers’ basis for challenging the program. Writing for the Supreme Court’s conservative bloc, however, Justice Anthony M. Kennedy concluded that the plaintiff taxpayers had suffered no injury because none of their money went to religious schools.
The tax credit is “not tantamount to a religious tax,” Kennedy wrote. “When Arizona taxpayers choose to contribute to STOs,” he explained, “they spend their own money, not money the State has collected from respondents or from other taxpayers.”
Kagan ably demonstrates the error in Kennedy’s conclusion. At tax time, Arizonans calculate their tax payment and, if they choose, can then decide to write two checks: one to a student tuition organization and the other, for the balance, to the state.
The tax credit is “costless” to the individual taxpayer, Kagan explains. “It comes out of what she otherwise would be legally obligated to pay the State — hence, out of public resources.” In fact, the STO’s “capitalize on this aspect of the tax credit,” Kagan notes. One STO advertises that the tax credit “won’t cost you a dime.”
As an original question, perhaps reasonable people can disagree on how to classify this system. But, as detailed in Kagan’s opinion, the Supreme Court and lower federal courts have ruled on any number of Establishment Clause challenges to tax credits or deductions without ever questioning taxpayers’ standing to bring the suits.
In oral argument, the government — which oddly sided with the state on the standing issue — conceded as much. In answer to a question from Kagan, Acting Solicitor General Neal Katyal agreed that under the government’s position, the Supreme Court erred in five cases by ruling on the merits instead of dismissing them for lack of standing.
Five precedents is a lot to disapprove at one time, even for the Roberts Court. Kennedy argued that taxpayers in those other cases may have had standing on other grounds and, in any event, standing may not have been questioned. Kagan rightly notes that the court is obliged to consider standing on its own whether or not raised by the parties.
Kennedy says and Kagan agrees that other individuals may have standing to challenge Arizona’s program. Opponents may try to mount a new case. But taxpayer suits are both a practical and a logical means to enforce the rule against government establishment of religion because the right to religious neutrality, as Kagan explains, in fact belongs to all of us.
“State sponsorship of religion sometimes harms individuals only (but this 'only' is no small matter) in their capacity as contributing members of our national community,” Kagan writes. In those cases, she says, “our Constitution’s guarantee of religious neutrality still should be enforced.”
The Supreme Court confronted its own version of this riddle last week (April 4). Does a government subsidy to religious schools possibly violate separation of church and state if you call it a tax credit instead? In a 5-4 decision, the court said no. But the answer is as wrong as calling a horse’s tail a leg.
The court’s conservative majority reached for that wrong answer in an activist move to protect government aid to religion from taxpayer suits despite a 43-year-old precedent permitting them, Flast v. Cohen (1968). As Justice Elena Kagan explained in a powerful dissent, the new ruling “devastates” what is often the most practical legal vehicle for enforcing the Constitution’s guarantee of religious neutrality in government policy.
The ruling in Arizona Christian School Tuition Organization v. Winn turns aside an Establishment Clause challenge to an Arizona tax-credit system that funnels government money to religious schools as surely as if the government wrote the check instead of an individual taxpayer. The Arizona law, enacted in 1997, gives a participating state taxpayer a dollar-for-dollar credit of up to $500 for individuals or $1,000 for married couples for contributions to specially established “school tuition organizations” or STOs.
Those STOs provide tuition grants to students attending qualified private schools in the state. To qualify, schools cannot discriminate on the basis of race, color, national origin, handicap, or familial status. But schools can discriminate on the basis of religion.
The largest STOs, such as the Arizona Christian School Tuition Organization, limit their aid to students attending religious schools. So, much of the $350 million in tax revenue that the state has forgone over the past decade has subsidized schooling for which eligible students were excluded on the basis of religion.
That is not the American way of public education. A group of Arizona taxpayers raised that argument in a federal court suit contending that the tax-credit scheme operates to provide an impermissible government subsidy for religious discrimination. The state disagrees. It contends the program operates as neutrally as a school voucher program of the sort that the Supreme Court upheld, in another 5-4 decision, back in 2000 (Zelman v. Simmons-Harris).
In ruling on that question, a three-judge panel of the Ninth U.S. Circuit Court of Appeals found the program unconstitutionally skewed toward religious schools. The full court refused to rehear the case en banc, with eight judges dissenting.
The Supreme Court chose instead to rule on another issue: standing. Significantly, none of the appeals court judges on either side questioned the taxpayers’ basis for challenging the program. Writing for the Supreme Court’s conservative bloc, however, Justice Anthony M. Kennedy concluded that the plaintiff taxpayers had suffered no injury because none of their money went to religious schools.
The tax credit is “not tantamount to a religious tax,” Kennedy wrote. “When Arizona taxpayers choose to contribute to STOs,” he explained, “they spend their own money, not money the State has collected from respondents or from other taxpayers.”
Kagan ably demonstrates the error in Kennedy’s conclusion. At tax time, Arizonans calculate their tax payment and, if they choose, can then decide to write two checks: one to a student tuition organization and the other, for the balance, to the state.
The tax credit is “costless” to the individual taxpayer, Kagan explains. “It comes out of what she otherwise would be legally obligated to pay the State — hence, out of public resources.” In fact, the STO’s “capitalize on this aspect of the tax credit,” Kagan notes. One STO advertises that the tax credit “won’t cost you a dime.”
As an original question, perhaps reasonable people can disagree on how to classify this system. But, as detailed in Kagan’s opinion, the Supreme Court and lower federal courts have ruled on any number of Establishment Clause challenges to tax credits or deductions without ever questioning taxpayers’ standing to bring the suits.
In oral argument, the government — which oddly sided with the state on the standing issue — conceded as much. In answer to a question from Kagan, Acting Solicitor General Neal Katyal agreed that under the government’s position, the Supreme Court erred in five cases by ruling on the merits instead of dismissing them for lack of standing.
Five precedents is a lot to disapprove at one time, even for the Roberts Court. Kennedy argued that taxpayers in those other cases may have had standing on other grounds and, in any event, standing may not have been questioned. Kagan rightly notes that the court is obliged to consider standing on its own whether or not raised by the parties.
Kennedy says and Kagan agrees that other individuals may have standing to challenge Arizona’s program. Opponents may try to mount a new case. But taxpayer suits are both a practical and a logical means to enforce the rule against government establishment of religion because the right to religious neutrality, as Kagan explains, in fact belongs to all of us.
“State sponsorship of religion sometimes harms individuals only (but this 'only' is no small matter) in their capacity as contributing members of our national community,” Kagan writes. In those cases, she says, “our Constitution’s guarantee of religious neutrality still should be enforced.”
Monday, April 4, 2011
Supreme Court Turns Blind Eye to Prosecutors' Misconduct
The government always wins when justice is done. That’s what prosecutors often say when they lose a jury verdict. By that standard, the government lost big last week when the Supreme Court blinked at an evident injustice by giving the New Orleans district attorney’s office a pass for constitutional violations that put an innocent man on the state’s death row for 14 years.
John Thompson was, in fact, within hours of his scheduled execution in April 1999 before courts intervened to begin unwinding the tangle of belatedly acknowledged prosecutorial misconduct that led to tainted convictions for attempted armed robbery and capital murder in 1985.
Freed from prison in 2003, Thompson sued the Orleans Parish District Attorney’s Office, including the former district attorney Harry Connick, for withholding the evidence that eventually cleared him. The withholding plainly violated a clear Supreme Court precedent, Brady v. Maryland, a 1963 decision as basic to prosecutors as Miranda is to police.
A federal court jury awarded Thompson $14 million. The district court judge and the Fifth U.S. Circuit Court of Appeals both found that Thompson had shown that Connick’s office had been “deliberately indifferent” to defendants’ rights. That is the strict standard the high court had previously established for holding local governments liable in federal civil rights suits.
In a 5-4 decision, the Supreme Court on March 29 threw out that verdict and ordered judgment in Connick’s favor by focusing solely on the concealment of one piece of evidence in the robbery case against Thompson. A single Brady violation, Justice Clarence Thomas wrote for the majority in Connick v. Thompson, was not enough to show a “pattern or practice” of deliberate indifference.
Thomas and the other conservatives in the majority turned a blind eye to the evidence of other prosecutorial misconduct not only in Thompson’s case but also in others. As Justice Ruth Bader Ginsburg explained in a bitter dissent, the “grave injustice” that Thompson suffered resulted from a “cavalier” attitude toward defendants’ rights that appeared to be “standard operating procedure” in the prosecutor’s office.
Similar violations are all the more likely, she suggested, because of the court’s failure to require better training and monitoring of prosecutors in order for local governments to avoid liability for rights violations. And — although Ginsburg did not make the point — Thompson’s wrongful convictions means that the actual killer in a high-profile murder has gone scot-free.
Thompson had initially been charged with the shooting death of the son of a prominent New Orleans businessman outside his home in December 1984. The case was weak from the outset. He had been implicated by a reward-seeking informant. When Thompson was arrested, prosecutors could plainly see that he did not match the description given by the sole eyewitness to the slaying.
Nevertheless, Connick, father of the same-named actor/singer, thought they had their man and clearly wanted a conviction. He appointed his third-in-command to head a team of three younger prosecutors to handle the case. They got a break of sorts when the victim of an unrelated robbery identified Thompson from his picture published in the newspaper. A swatch of cloth from the pants worn by one of the victims, stained with the perpetrator’s blood, was sent to the New Orleans crime lab for analysis.
Prosecutors decided to try Thompson first in the robbery case, evidently hoping that a conviction would deter him from testifying in a later murder trial — as, in fact, actually occurred. In the robbery case, Thompson’s attorney asked for what Brady requires: disclosure of any exculpatory evidence. The prosecutors not only failed to mention the blood evidence, but actually removed the swatch from the evidence room before the defense attorney’s inspection. Today, it is lost. But the lab report, found by investigators 14 years later, shows that the blood did not match Thompson’s blood type.
After the attempted robbery conviction, prosecutors continued a policy of concealment in the murder trial. The informant’s tape-recorded conversation was never disclosed, nor the eyewitness’s unmatching description of the assailant. Without that information, Thompson’s attorney was effectively prevented from impeaching their testimony.
In the later federal civil rights suit, Thompson introduced evidence from former prosecutors that the disregard for Brady in his case was — as Ginsburg put it — “neither isolated nor atypical.” Indeed, state appellate courts had reversed four convictions from Connick’s office for Brady violations in the decade before Thompson’s trial. The former assistants testified to either minimal or non-existent training about Brady. Connick clearly signaled, they said, that when in doubt evidence should be withheld rather than disclosed.
The discovery of the Brady violation in the robbery case forced the reversal of that conviction. The state appellate court reversed the murder conviction as well, reasoning that the tainted robbery conviction had prevented him from testifying. In a retrial, he was acquitted.
In this sorry episode, the Supreme Court’s majority discerns only a single injustice, not the “pervasive” disregard of prosecutors’ obligations seen by Ginsburg and the other three liberal dissenters. The court has already given individual prosecutors virtually absolute immunity for rights violations during trials. With this ruling, those responsible for guarding against prosecutorial misconduct are largely protected from legal liability as well.
John Thompson was, in fact, within hours of his scheduled execution in April 1999 before courts intervened to begin unwinding the tangle of belatedly acknowledged prosecutorial misconduct that led to tainted convictions for attempted armed robbery and capital murder in 1985.
Freed from prison in 2003, Thompson sued the Orleans Parish District Attorney’s Office, including the former district attorney Harry Connick, for withholding the evidence that eventually cleared him. The withholding plainly violated a clear Supreme Court precedent, Brady v. Maryland, a 1963 decision as basic to prosecutors as Miranda is to police.
A federal court jury awarded Thompson $14 million. The district court judge and the Fifth U.S. Circuit Court of Appeals both found that Thompson had shown that Connick’s office had been “deliberately indifferent” to defendants’ rights. That is the strict standard the high court had previously established for holding local governments liable in federal civil rights suits.
In a 5-4 decision, the Supreme Court on March 29 threw out that verdict and ordered judgment in Connick’s favor by focusing solely on the concealment of one piece of evidence in the robbery case against Thompson. A single Brady violation, Justice Clarence Thomas wrote for the majority in Connick v. Thompson, was not enough to show a “pattern or practice” of deliberate indifference.
Thomas and the other conservatives in the majority turned a blind eye to the evidence of other prosecutorial misconduct not only in Thompson’s case but also in others. As Justice Ruth Bader Ginsburg explained in a bitter dissent, the “grave injustice” that Thompson suffered resulted from a “cavalier” attitude toward defendants’ rights that appeared to be “standard operating procedure” in the prosecutor’s office.
Similar violations are all the more likely, she suggested, because of the court’s failure to require better training and monitoring of prosecutors in order for local governments to avoid liability for rights violations. And — although Ginsburg did not make the point — Thompson’s wrongful convictions means that the actual killer in a high-profile murder has gone scot-free.
Thompson had initially been charged with the shooting death of the son of a prominent New Orleans businessman outside his home in December 1984. The case was weak from the outset. He had been implicated by a reward-seeking informant. When Thompson was arrested, prosecutors could plainly see that he did not match the description given by the sole eyewitness to the slaying.
Nevertheless, Connick, father of the same-named actor/singer, thought they had their man and clearly wanted a conviction. He appointed his third-in-command to head a team of three younger prosecutors to handle the case. They got a break of sorts when the victim of an unrelated robbery identified Thompson from his picture published in the newspaper. A swatch of cloth from the pants worn by one of the victims, stained with the perpetrator’s blood, was sent to the New Orleans crime lab for analysis.
Prosecutors decided to try Thompson first in the robbery case, evidently hoping that a conviction would deter him from testifying in a later murder trial — as, in fact, actually occurred. In the robbery case, Thompson’s attorney asked for what Brady requires: disclosure of any exculpatory evidence. The prosecutors not only failed to mention the blood evidence, but actually removed the swatch from the evidence room before the defense attorney’s inspection. Today, it is lost. But the lab report, found by investigators 14 years later, shows that the blood did not match Thompson’s blood type.
After the attempted robbery conviction, prosecutors continued a policy of concealment in the murder trial. The informant’s tape-recorded conversation was never disclosed, nor the eyewitness’s unmatching description of the assailant. Without that information, Thompson’s attorney was effectively prevented from impeaching their testimony.
In the later federal civil rights suit, Thompson introduced evidence from former prosecutors that the disregard for Brady in his case was — as Ginsburg put it — “neither isolated nor atypical.” Indeed, state appellate courts had reversed four convictions from Connick’s office for Brady violations in the decade before Thompson’s trial. The former assistants testified to either minimal or non-existent training about Brady. Connick clearly signaled, they said, that when in doubt evidence should be withheld rather than disclosed.
The discovery of the Brady violation in the robbery case forced the reversal of that conviction. The state appellate court reversed the murder conviction as well, reasoning that the tainted robbery conviction had prevented him from testifying. In a retrial, he was acquitted.
In this sorry episode, the Supreme Court’s majority discerns only a single injustice, not the “pervasive” disregard of prosecutors’ obligations seen by Ginsburg and the other three liberal dissenters. The court has already given individual prosecutors virtually absolute immunity for rights violations during trials. With this ruling, those responsible for guarding against prosecutorial misconduct are largely protected from legal liability as well.
Monday, March 28, 2011
On Gay Rights, Justice Dept. Leads; Will Courts Follow?
The Supreme Court struck a major blow for racial justice in 1954 when it outlawed racial segregation in public schools. But Brown v. Board of Education said nothing about legally enforced racial segregation in other public services or in public facilities.
Even so, the principle that discrimination on the basis of race violates the Equal Protection Clause was evidently just as applicable to segregation in public parks, golf courses, and swimming pools, as federal judges in the South quickly ruled. When those cases reached the Supreme Court, the justices summarily affirmed the rulings without comment.
As the episode illustrates, a new legal principle cannot be neatly confined to the case at hand. In a rule-of-law society, precedents have consequences; rulings have legs. So it was with the Supreme Court’s first blow against racial segregation. And so it may be with the federal government’s first direct challenge to legally enforced discrimination against gays and lesbians.
In deciding not to defend the constitutionality of the Defense of Marriage Act (DOMA), the Obama administration adopted for the first time the view that laws based on sexual orientation are constitutionally suspect and cannot be upheld without surviving some unspecified measure of “heightened scrutiny.” Attorney General Eric Holder listed four factors in his letter explaining why courts should be “suspicious” of laws based on sexual orientation.
Holder cited first “the significant history of purposeful discrimination” against gays and lesbians. He pointed next to the “growing consensus” that sexual orientation, like race, is an immutable characteristic and the “growing acknowledgment” that sexual orientation has no bearing on an individual’s ability to contribute to society. And, despite gains in recent years, he noted that gays and lesbians generally have had “limited political power” as a minority in society.
No court, federal or state, has yet to hold that laws based on sexual orientation are constitutionally suspect. Courts that have upheld bans on gay marriage have applied the relaxed “rational relationship” test. Courts that have struck down bans on gay marriage have hinted that a stricter test might be appropriate but have ended by saying that laws denying marriage rights to gays and lesbians have no rational basis because they serve no legitimate government purpose.
The DOMA case is pending before the federal appeals court in New York, but even before a ruling the Justice Department’s position is being extended into other matters. In a preliminary ruling last week [March 22], an immigration judge in New York City cited the government’s position in the DOMA case in allowing an Argentine woman a chance to challenge her deportation because she and her U.S. citizen wife were legally married in Connecticut in August. And a few days earlier [March 17], the Justice Department itself applied heightened scrutiny to governmental conduct based on sexual orientation in accusing the New Orleans Police Department of “bias-based profiling” against LGBT individuals.
In the immigration case, first reported in the Gay City News, Monica Alcota, who came to the United States 10 years ago, is claiming she is entitled to permanent residency status because of her marriage to Cristina Ojeda, a U.S. citizen — just as she would be if she were in a heterosexual marriage. Immigration judge Terry Bain allowed Alcota to petition the U.S. Citizenship and Immigration Services (USCIS) to be recognized as Ojeda’s spouse.
The doubts about deporting foreign spouses in same-sex marriages with U.S. citizens may be shared by immigration officials. Newsweek/The Daily Beast reported last week [March 25] that the directors of the Washington and Baltimore immigration offices have put deportation proceedings in such cases on hold pending further consideration of DOMA’s validity.
The Justice Department’s report on the New Orleans Police Department accused the force of “a pattern or practice of discriminatory policing” against, among others, African Americans, Latinos, and LGBT persons. As reporter Chris Geidner wrote last week [March 23] in the gay Washington publication Metro Weekly, the findings of discrimination against LGBT individuals were not only “notable on their own,” but also significant because of the constitutional standard used to judge the department’s treatment of LGBT individuals. Heightened scrutiny of discrimination by law enforcement on the basis of sexual orientation and gender identity was justified, the report stated, by “many factors . . . including a long history of animus and deeply-rooted stereotypes about lesbian, gay, bisexual, and transgender (“LGBT'”) individuals.”
For now, these developments are merely embryonic. To date, no one in the LGBT community has won vindication of any legal right because of the government’s position. But the Justice Department carries a big stick in federal courts. In Brown, the government sided with the plaintiffs and against the segregated school districts. The government’s support for desegregation over the next two decades helped stiffen the court’s resolve on the issue. Conversely, President Eisenhower’s failure to immediately endorse Brown gave segregationists room to mount resistance to the ruling.
The U.S. government did not participate in the Supreme Court’s most important gay rights ruling: Lawrence v. Texas (2005), which struck down state anti-sodomy laws. President Obama, who is reported to have been personally involved in the decision on DOMA, has for the first time put the government’s significant clout on the side of constitutionalizing gay rights. The next move is up to the courts.
Even so, the principle that discrimination on the basis of race violates the Equal Protection Clause was evidently just as applicable to segregation in public parks, golf courses, and swimming pools, as federal judges in the South quickly ruled. When those cases reached the Supreme Court, the justices summarily affirmed the rulings without comment.
As the episode illustrates, a new legal principle cannot be neatly confined to the case at hand. In a rule-of-law society, precedents have consequences; rulings have legs. So it was with the Supreme Court’s first blow against racial segregation. And so it may be with the federal government’s first direct challenge to legally enforced discrimination against gays and lesbians.
In deciding not to defend the constitutionality of the Defense of Marriage Act (DOMA), the Obama administration adopted for the first time the view that laws based on sexual orientation are constitutionally suspect and cannot be upheld without surviving some unspecified measure of “heightened scrutiny.” Attorney General Eric Holder listed four factors in his letter explaining why courts should be “suspicious” of laws based on sexual orientation.
Holder cited first “the significant history of purposeful discrimination” against gays and lesbians. He pointed next to the “growing consensus” that sexual orientation, like race, is an immutable characteristic and the “growing acknowledgment” that sexual orientation has no bearing on an individual’s ability to contribute to society. And, despite gains in recent years, he noted that gays and lesbians generally have had “limited political power” as a minority in society.
No court, federal or state, has yet to hold that laws based on sexual orientation are constitutionally suspect. Courts that have upheld bans on gay marriage have applied the relaxed “rational relationship” test. Courts that have struck down bans on gay marriage have hinted that a stricter test might be appropriate but have ended by saying that laws denying marriage rights to gays and lesbians have no rational basis because they serve no legitimate government purpose.
The DOMA case is pending before the federal appeals court in New York, but even before a ruling the Justice Department’s position is being extended into other matters. In a preliminary ruling last week [March 22], an immigration judge in New York City cited the government’s position in the DOMA case in allowing an Argentine woman a chance to challenge her deportation because she and her U.S. citizen wife were legally married in Connecticut in August. And a few days earlier [March 17], the Justice Department itself applied heightened scrutiny to governmental conduct based on sexual orientation in accusing the New Orleans Police Department of “bias-based profiling” against LGBT individuals.
In the immigration case, first reported in the Gay City News, Monica Alcota, who came to the United States 10 years ago, is claiming she is entitled to permanent residency status because of her marriage to Cristina Ojeda, a U.S. citizen — just as she would be if she were in a heterosexual marriage. Immigration judge Terry Bain allowed Alcota to petition the U.S. Citizenship and Immigration Services (USCIS) to be recognized as Ojeda’s spouse.
The doubts about deporting foreign spouses in same-sex marriages with U.S. citizens may be shared by immigration officials. Newsweek/The Daily Beast reported last week [March 25] that the directors of the Washington and Baltimore immigration offices have put deportation proceedings in such cases on hold pending further consideration of DOMA’s validity.
The Justice Department’s report on the New Orleans Police Department accused the force of “a pattern or practice of discriminatory policing” against, among others, African Americans, Latinos, and LGBT persons. As reporter Chris Geidner wrote last week [March 23] in the gay Washington publication Metro Weekly, the findings of discrimination against LGBT individuals were not only “notable on their own,” but also significant because of the constitutional standard used to judge the department’s treatment of LGBT individuals. Heightened scrutiny of discrimination by law enforcement on the basis of sexual orientation and gender identity was justified, the report stated, by “many factors . . . including a long history of animus and deeply-rooted stereotypes about lesbian, gay, bisexual, and transgender (“LGBT'”) individuals.”
For now, these developments are merely embryonic. To date, no one in the LGBT community has won vindication of any legal right because of the government’s position. But the Justice Department carries a big stick in federal courts. In Brown, the government sided with the plaintiffs and against the segregated school districts. The government’s support for desegregation over the next two decades helped stiffen the court’s resolve on the issue. Conversely, President Eisenhower’s failure to immediately endorse Brown gave segregationists room to mount resistance to the ruling.
The U.S. government did not participate in the Supreme Court’s most important gay rights ruling: Lawrence v. Texas (2005), which struck down state anti-sodomy laws. President Obama, who is reported to have been personally involved in the decision on DOMA, has for the first time put the government’s significant clout on the side of constitutionalizing gay rights. The next move is up to the courts.
Monday, March 21, 2011
‘Black on Black’ Racial Profiling: Why?
Two weeks after taking office, New Orleans Mayor Mitch Landrieu held a town hall meeting last May about the city’s beleaguered police department. As reported by the New Orleans Tribune, Landrieu closed with a campaign-style promise: “I am not going to be commander-in-chief of a police department that engages in racial profiling.”
Ten months later, the U.S. Justice Department has thrown cold water on Landrieu’s hopeful pledge. In a relentlessly damning, 158-page report, a Justice Department task force has found “reasonable cause to believe” the city’s police department guilty of “a pattern or practice of discriminatory policing,” including “bias-based profiling” against African Americans, Latinos, and gays, lesbians and transgender persons.
The evidence of racial profiling is simple statistics. In the period covered in the study — January 2009 through May 2010, at the start of Landrieu’s tenure — New Orleans police officers shot 27 civilians, all of them African American. For the year 2009, police arrested 500 young black males for serious offenses but only eight young white males. Adjusted for population, that amounts to a 16 to 1 black/white ratio — more than five times as great a disparity as the 3-to-1 ratio reported nationally.
For someone like myself who came of age in the 1960s, the figures are not only disturbing but also deeply disappointing. Back then, urban police departments were close to lily white. New Orleans had 54 African American officers out of a total force of 1,308, according to data in the 1968 Kerner Commission report. Integrate police departments, many of us assumed, and the problem would be if not eliminated at least substantially reduced.
Today, New Orleans is a majority-black city with a majority-black police department. Yet the kind of race-based harassment and intimidation that the Kerner Commission cited as one of the causes of racial unrest and disorder appears to persist. “Black on black” racial profiling must be part of the problem. Why?
“That’s a question that a lot of people have in their mind,” says David Harris, a professor at the University of Pittsburgh School of Law and author of the book Profiles in Injustice: Why Racial Profiling Cannot Work. The explanation, he says, lies not with the race of the officers involved, but with the training, customs, and culture within the police department. And the answer is not simply to identify and get rid of the bigots within a department, but to change the way the department operates.
“Black officers are going to be trained like all the others,” Harris explains. “They’re going to want to fit in just like all the others.”
As Harris notes, African American officers’ role in racial profiling has been documented before. A Justice Department study of police-civilian contacts a decade ago found widespread complaints of race-based traffic stops by African American drivers. The officers complained of were as likely to be black as white, Harris recalls.
In like vein, the Rampart Division scandal in Los Angeles in the late 1990s involved abuse by Latino officers against Latinos. “You’ve got minority cops beating up minorities,” an ACLU lawyer told me for my CQ Researcher report, “Policing the Police” (March 17, 2000).
The Justice Department study of the New Orleans force, requested by and now embraced by Landrieu as well as his (white) chief of police, Ronal Serpas, paints a portrait of a thoroughly dysfunctional department. The report found routine use of “unnecessary and unreasonable force.” Even so, no violation of the department’s use-of-force policy has been found in the six years reviewed by Justice Department investigators.
Detentions without reasonable suspicion were also found to be routine. Out of 145 arrest reports reviewed in detail, “a significant number … reflected on their face apparent constitutional violations,” the report stated. One reason, the investigators surmised, was “a strong and unyielding pressure” on officers to keep their arrest numbers high.
Systemic bias shows up in the department’s practices in dealing not only with African Americans, but also with women, Latinos, Vietnamese, and the LGBT community. Sexual assault and domestic violence cases are poorly investigated, the report says. Gay men complain of fabricated accusations of solicitation, transgender persons of harassment. The force has “no meaningful capacity” to deal with the limited-English-proficiency population. In a city with growing numbers of Vietnamese and Latinos, the department relies on only one Spanish-speaking and one Vietnamese-speaking officer to help handle calls and investigations.
The Justice Department report closed with 16 pages of recommendations covering everything from recruitment, training, and supervision, through evaluation and accountability procedures. On bias-based profiling, the report calls not only for training and explicit policies, but also for data collection to ascertain the extent of profiling and to identify individual officers or units responsible. Harris says similar steps have helped reduce racial profiling in other police forces, including Pittsburgh’s, which was under federal court supervision for five years from after a similar Justice Department investigation.
The report on the New Orleans force is expected to result likewise in a consent decree with federal court supervision for a period, according to the New Orleans Times Picayune. Encouragingly, Serpas appeared at the March 17 press conference in New Orleans with the Justice Department’s Tom Perez, head of the civil rights division, to release the report. “I believe we will make these reforms a reality,” Serpas said.
Ten months later, the U.S. Justice Department has thrown cold water on Landrieu’s hopeful pledge. In a relentlessly damning, 158-page report, a Justice Department task force has found “reasonable cause to believe” the city’s police department guilty of “a pattern or practice of discriminatory policing,” including “bias-based profiling” against African Americans, Latinos, and gays, lesbians and transgender persons.
The evidence of racial profiling is simple statistics. In the period covered in the study — January 2009 through May 2010, at the start of Landrieu’s tenure — New Orleans police officers shot 27 civilians, all of them African American. For the year 2009, police arrested 500 young black males for serious offenses but only eight young white males. Adjusted for population, that amounts to a 16 to 1 black/white ratio — more than five times as great a disparity as the 3-to-1 ratio reported nationally.
For someone like myself who came of age in the 1960s, the figures are not only disturbing but also deeply disappointing. Back then, urban police departments were close to lily white. New Orleans had 54 African American officers out of a total force of 1,308, according to data in the 1968 Kerner Commission report. Integrate police departments, many of us assumed, and the problem would be if not eliminated at least substantially reduced.
Today, New Orleans is a majority-black city with a majority-black police department. Yet the kind of race-based harassment and intimidation that the Kerner Commission cited as one of the causes of racial unrest and disorder appears to persist. “Black on black” racial profiling must be part of the problem. Why?
“That’s a question that a lot of people have in their mind,” says David Harris, a professor at the University of Pittsburgh School of Law and author of the book Profiles in Injustice: Why Racial Profiling Cannot Work. The explanation, he says, lies not with the race of the officers involved, but with the training, customs, and culture within the police department. And the answer is not simply to identify and get rid of the bigots within a department, but to change the way the department operates.
“Black officers are going to be trained like all the others,” Harris explains. “They’re going to want to fit in just like all the others.”
As Harris notes, African American officers’ role in racial profiling has been documented before. A Justice Department study of police-civilian contacts a decade ago found widespread complaints of race-based traffic stops by African American drivers. The officers complained of were as likely to be black as white, Harris recalls.
In like vein, the Rampart Division scandal in Los Angeles in the late 1990s involved abuse by Latino officers against Latinos. “You’ve got minority cops beating up minorities,” an ACLU lawyer told me for my CQ Researcher report, “Policing the Police” (March 17, 2000).
The Justice Department study of the New Orleans force, requested by and now embraced by Landrieu as well as his (white) chief of police, Ronal Serpas, paints a portrait of a thoroughly dysfunctional department. The report found routine use of “unnecessary and unreasonable force.” Even so, no violation of the department’s use-of-force policy has been found in the six years reviewed by Justice Department investigators.
Detentions without reasonable suspicion were also found to be routine. Out of 145 arrest reports reviewed in detail, “a significant number … reflected on their face apparent constitutional violations,” the report stated. One reason, the investigators surmised, was “a strong and unyielding pressure” on officers to keep their arrest numbers high.
Systemic bias shows up in the department’s practices in dealing not only with African Americans, but also with women, Latinos, Vietnamese, and the LGBT community. Sexual assault and domestic violence cases are poorly investigated, the report says. Gay men complain of fabricated accusations of solicitation, transgender persons of harassment. The force has “no meaningful capacity” to deal with the limited-English-proficiency population. In a city with growing numbers of Vietnamese and Latinos, the department relies on only one Spanish-speaking and one Vietnamese-speaking officer to help handle calls and investigations.
The Justice Department report closed with 16 pages of recommendations covering everything from recruitment, training, and supervision, through evaluation and accountability procedures. On bias-based profiling, the report calls not only for training and explicit policies, but also for data collection to ascertain the extent of profiling and to identify individual officers or units responsible. Harris says similar steps have helped reduce racial profiling in other police forces, including Pittsburgh’s, which was under federal court supervision for five years from after a similar Justice Department investigation.
The report on the New Orleans force is expected to result likewise in a consent decree with federal court supervision for a period, according to the New Orleans Times Picayune. Encouragingly, Serpas appeared at the March 17 press conference in New Orleans with the Justice Department’s Tom Perez, head of the civil rights division, to release the report. “I believe we will make these reforms a reality,” Serpas said.
Monday, March 14, 2011
Supreme Court’s Feckless Surrender to Gerrymandering
It’s that time of the decade again: time for legislative and congressional redistricting by state lawmakers or, in a few states, specially created commissions. The Supreme Court struck a major blow for political democracy a half century ago by establishing the “one person, one vote” rule for electoral districts. In the past decade, however, the court has failed to finish the job by leaving the time-dishonored practice of partisan gerrymandering effectively immune to judicial oversight.
The Warren Court started the reapportionment revolution with its 1962 decision, Baker v. Carr, despite the warning from dissenting justice Felix Frankfurter against venturing into a “political thicket.” After retirement, Chief Justice Earl Warren said he considered the reapportionment decisions the most important of his 15-year tenure — outranking even Brown v. Board of Education, the landmark school desegregation case.
The Supreme Court entered the political thicket in the 1960s because the political process was broken. Rural-dominated state legislatures had failed to redraw districts for decades as population shifted to cities and suburbs. My home state of Tennessee had not reapportioned since 1901, despite a mandate in the state constitution to do so. As a result, a minority of voters — about 40 percent — were able to elect super-majorities in both the state Senate and state House of Representatives.
Urban officials and residents sued, claiming a violation of the Equal Protection Clause. The lower court dismissed the suit, citing the Supreme Court’s earlier decision in a similar Illinois malapportionment case, Colegrove v. Green (1946), that federal courts had no jurisdiction over such claims.
In Baker v. Carr, the Court said that federal courts could exercise jurisdiction over malapportionment cases even if they presented a “political question.” The ruling sent the case back to a lower court, which forced the Tennessee legislature to redraw districts to give urban voters their constitutionally entitled due. By the end of the decade, state legislatures throughout the country had similarly been forced to redraw legislative and congressional districts to comply with the “one person, one vote” requirement that the Court established in its later cases.
Two decades later, the Court similarly opened the federal courthouse door to constitutional challenges to partisan gerrymandering, the practice of drawing district lines to help one’s party or hurt the other. Indiana Democrats went to federal court alleging that the Republican-controlled legislature had drawn districts in 1981 in a deliberate effort to disenfranchise Democratic voters. The proof: under the GOP-drawn plan, Democratic candidates won 51.9 percent of the vote in the 1982 election, but only 43 out of 100 seats in the Indiana House.
In Davis v. Bandemer, the Court in 1986 said that federal courts could hear such claims despite the warning from Justice Sandra Day O’Connor that the ruling would invite federal litigation by the losing party in every reapportionment fight. On the merits, the Indiana Democrats lost their fight. But Justice Byron White’s opinion for seven justices established a standard for future cases. “Unconstitutional discrimination occurs,” White wrote, “only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole.”
Twice within the past decade, the Court has been asked to strike down partisan congressional gerrymanders fashioned by Republican-controlled legislatures, first in Pennsylvania and then in Texas. In both cases, GOP lawmakers had used recognized tricks to minimize Democrats’ chances at the polls: pairing incumbent Democrats in the same district; “packing” Democratic voters into some districts so their votes would be wasted; or “cracking” Democratic districts so that Democrats would be spread out and outvoted.
In both cases, Republicans won lopsided majorities in the House delegation in the next election: a 12-7 GOP edge in Pennsylvania in 2002; a 21-11 Republican advantage in Texas in 2004. But both times the Court found nothing unconstitutional in the overall line-drawing. In the Pennsylvania case, Vieth v. Jubilerer (2003), four conservative justices wanted to overrule Davis v. Bandemer altogether and bar gerrymandering challenges. Justice Anthony M. Kennedy refused to go that far, but could not come up with a standard for such suits. Nor could the four dissenting liberals agree on a single test. Three years later, Kennedy led a pivotal group of three justices in rejecting Texas Democrats’ efforts to fashion a standard for gerrymandering cases (League of United Latin American Citizens v. Perry, 2006).
With no Supreme Court standard, partisan gerrymandering is all but certain to proceed apace in the current redistricting cycle. And Kennedy’s hesitancy appears likely to steer the Court’s course in any subsequent challenges. Tellingly, Kennedy had no such difficulty in fashioning a rule against racial gerrymanders. Kennedy spoke for the Court in Miller v. Johnson (1995) in holding that a district map was unconstitutional if race was “the predominant factor” in the design. Evidence of lawmakers’ intent could be inferred, Kennedy said, from a district’s departure from “traditional” principles, including “compactness” and “contiguity.”
A workable standard to judge gerrymandering cases is not beyond the Supreme Court’s ability if the justices only had the will. With the Court on the sidelines, however, redistricting fights will again be waged according to the law of the political jungle and the constitutional goal of fair representation shortchanged for another decade.
The Warren Court started the reapportionment revolution with its 1962 decision, Baker v. Carr, despite the warning from dissenting justice Felix Frankfurter against venturing into a “political thicket.” After retirement, Chief Justice Earl Warren said he considered the reapportionment decisions the most important of his 15-year tenure — outranking even Brown v. Board of Education, the landmark school desegregation case.
The Supreme Court entered the political thicket in the 1960s because the political process was broken. Rural-dominated state legislatures had failed to redraw districts for decades as population shifted to cities and suburbs. My home state of Tennessee had not reapportioned since 1901, despite a mandate in the state constitution to do so. As a result, a minority of voters — about 40 percent — were able to elect super-majorities in both the state Senate and state House of Representatives.
Urban officials and residents sued, claiming a violation of the Equal Protection Clause. The lower court dismissed the suit, citing the Supreme Court’s earlier decision in a similar Illinois malapportionment case, Colegrove v. Green (1946), that federal courts had no jurisdiction over such claims.
In Baker v. Carr, the Court said that federal courts could exercise jurisdiction over malapportionment cases even if they presented a “political question.” The ruling sent the case back to a lower court, which forced the Tennessee legislature to redraw districts to give urban voters their constitutionally entitled due. By the end of the decade, state legislatures throughout the country had similarly been forced to redraw legislative and congressional districts to comply with the “one person, one vote” requirement that the Court established in its later cases.
Two decades later, the Court similarly opened the federal courthouse door to constitutional challenges to partisan gerrymandering, the practice of drawing district lines to help one’s party or hurt the other. Indiana Democrats went to federal court alleging that the Republican-controlled legislature had drawn districts in 1981 in a deliberate effort to disenfranchise Democratic voters. The proof: under the GOP-drawn plan, Democratic candidates won 51.9 percent of the vote in the 1982 election, but only 43 out of 100 seats in the Indiana House.
In Davis v. Bandemer, the Court in 1986 said that federal courts could hear such claims despite the warning from Justice Sandra Day O’Connor that the ruling would invite federal litigation by the losing party in every reapportionment fight. On the merits, the Indiana Democrats lost their fight. But Justice Byron White’s opinion for seven justices established a standard for future cases. “Unconstitutional discrimination occurs,” White wrote, “only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole.”
Twice within the past decade, the Court has been asked to strike down partisan congressional gerrymanders fashioned by Republican-controlled legislatures, first in Pennsylvania and then in Texas. In both cases, GOP lawmakers had used recognized tricks to minimize Democrats’ chances at the polls: pairing incumbent Democrats in the same district; “packing” Democratic voters into some districts so their votes would be wasted; or “cracking” Democratic districts so that Democrats would be spread out and outvoted.
In both cases, Republicans won lopsided majorities in the House delegation in the next election: a 12-7 GOP edge in Pennsylvania in 2002; a 21-11 Republican advantage in Texas in 2004. But both times the Court found nothing unconstitutional in the overall line-drawing. In the Pennsylvania case, Vieth v. Jubilerer (2003), four conservative justices wanted to overrule Davis v. Bandemer altogether and bar gerrymandering challenges. Justice Anthony M. Kennedy refused to go that far, but could not come up with a standard for such suits. Nor could the four dissenting liberals agree on a single test. Three years later, Kennedy led a pivotal group of three justices in rejecting Texas Democrats’ efforts to fashion a standard for gerrymandering cases (League of United Latin American Citizens v. Perry, 2006).
With no Supreme Court standard, partisan gerrymandering is all but certain to proceed apace in the current redistricting cycle. And Kennedy’s hesitancy appears likely to steer the Court’s course in any subsequent challenges. Tellingly, Kennedy had no such difficulty in fashioning a rule against racial gerrymanders. Kennedy spoke for the Court in Miller v. Johnson (1995) in holding that a district map was unconstitutional if race was “the predominant factor” in the design. Evidence of lawmakers’ intent could be inferred, Kennedy said, from a district’s departure from “traditional” principles, including “compactness” and “contiguity.”
A workable standard to judge gerrymandering cases is not beyond the Supreme Court’s ability if the justices only had the will. With the Court on the sidelines, however, redistricting fights will again be waged according to the law of the political jungle and the constitutional goal of fair representation shortchanged for another decade.
Sunday, March 6, 2011
Vindicating Free Speech for Those Who Hate
The Westboro Baptist Church is a hate group. Its obsessively anti-gay founder, the Rev. Fred W. Phelps Sr., and Phelps’ family members who make up most of the congregation of his Topeka, Kan., church are hateful in thought and deed. No truly God-loving Christian would choose the funeral of a fallen serviceman to air such hateful views as “God hates fags” or “Thank God for dead soldiers.”
Yet that is what Phelps and his media-seeking followers have done some 600 times over the past 20 years. The surviving families and friends of most of those American heroes have tried to ignore the Phelpses. But Albert Snyder, who lost his 20-year-old son Marine Lance Corporal Matthew Snyder in Iraq in 2006, decided not to turn the other cheek after the Phelps clan picketed Matthew’s funeral in his hometown of Westminster, Md.
Just three months later, Snyder sued Phelps and his church for what tort law calls “intentional infliction of emotional distress.” Snyder explained to a federal court jury in the fall 2007 trial that he was outraged by the Phelpses’ decision to turn his son’s funeral into “a media circus.” The jurors adopted Snyder’s outrage as their own, awarding him $2.9 million in compensatory damages and $8 million in punitive damages. Judge Richard Bennett cut the award to $5 million, but like the jury he found the Phelpses’ actions “so outrageous as to inflict severe emotional distress and invade the privacy of a private citizen during a time of bereavement.”
Last week, a nearly unanimous U.S. Supreme Court decided that verdict could not stand. None of the nine justices evinced any respect for what the lone dissenter, Samuel A. Alito Jr., labeled the Phelpses’ “malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability.” Writing for the majority, however, Chief Justice John G. Roberts Jr. said that the First Amendment shielded the Phelpses from liability for their speech, however “hurtful” its impact or “negligible” its contribution to public discourse.
The March 2 ruling in Snyder v. Phelps was in line with free-speech precedents but somewhat at odds with the tenor of the earlier arguments in the case. Several of the justices appeared to agree with Snyder’s lawyer that the Phelpses had no First Amendment protection for intruding on the funeral and targeting epithets at their son, a private citizen. Phelps’ lawyer-daughter Margaret insisted, however, that the demonstration focused on matters of public concern — specifically, “why [soldiers] are dying and how God is dealing with this nation.” Albert Snyder, she said, was merely saying, “I want $11 million from a little church because they came forth with some preaching I didn’t like.”
The nearly unanimous ruling for the Phelpses suggests that the justices came to a different view of the case after a closer examination of the facts. The placards may not have been “refined social or political commentary,” Roberts wrote, but they did refer to “matters of public import,” including homosexuality and public morality. And the Phelpses’ themselves were model First Amendment citizens in Roberts’s telling. They alerted local authorities to their plans and fully complied with police guidance on where to stage their picketing, some 1,000 feet from the church. There was “no shouting, profanity, or violence.”
On those facts, the Phelpses could not be punished except for the content of their message — and that, Roberts said, the First Amendment forbids. Speech on a matter of public concern, he wrote, “cannot be restricted simply because it is upsetting or arouses contempt.”
Alito came to an opposite conclusion mainly by treating some of the Phelpses’ placards — for example, “You’re Going to Hell” — as a personal attack on Matthew Snyder, with the evident but false insinuation that he was gay. Alito also relied in part on a video posted later on the church’s Web site that claimed the Snyder parents had taught Matthew to be “an idolater” by raising him as a Catholic. Roberts said the video was out of the case because Snyder’s lawyer had not raised it in asking the justices to review the decision.
Roberts stressed that the decision was narrow, but a narrow decision can still be a landmark. The court has not always been friendly toward free speech. The court upheld criminal convictions of anti-war activists and anarchists in the early 20th century, of communists in mid-century. Those decisions are today remembered as much for their dissents as for their majority opinions.
It was in another dissent that the great justice Oliver Wendell Holmes Jr. set out the principle that the former New York Times columnist Anthony Lewis used in 2007 as the title for his so-called “biography of the First Amendment.” Rosika Schwimmer, a Hungarian-born pacifist, had been denied U.S. citizenship because she refused to promise to take up arms in defense of her to-be-adopted country. The court in Schwimmer v. United States (1929) ruled against her, 6-3.
In his dissent, Holmes acknowledged that Schwimmer’s views “might excite popular prejudice,” but he extolled what he called “the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.” It is a measure of progress that eight decades later, the Phelpses benefit from that principle, however hateful their thought and deed may be.
Yet that is what Phelps and his media-seeking followers have done some 600 times over the past 20 years. The surviving families and friends of most of those American heroes have tried to ignore the Phelpses. But Albert Snyder, who lost his 20-year-old son Marine Lance Corporal Matthew Snyder in Iraq in 2006, decided not to turn the other cheek after the Phelps clan picketed Matthew’s funeral in his hometown of Westminster, Md.
Just three months later, Snyder sued Phelps and his church for what tort law calls “intentional infliction of emotional distress.” Snyder explained to a federal court jury in the fall 2007 trial that he was outraged by the Phelpses’ decision to turn his son’s funeral into “a media circus.” The jurors adopted Snyder’s outrage as their own, awarding him $2.9 million in compensatory damages and $8 million in punitive damages. Judge Richard Bennett cut the award to $5 million, but like the jury he found the Phelpses’ actions “so outrageous as to inflict severe emotional distress and invade the privacy of a private citizen during a time of bereavement.”
Last week, a nearly unanimous U.S. Supreme Court decided that verdict could not stand. None of the nine justices evinced any respect for what the lone dissenter, Samuel A. Alito Jr., labeled the Phelpses’ “malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability.” Writing for the majority, however, Chief Justice John G. Roberts Jr. said that the First Amendment shielded the Phelpses from liability for their speech, however “hurtful” its impact or “negligible” its contribution to public discourse.
The March 2 ruling in Snyder v. Phelps was in line with free-speech precedents but somewhat at odds with the tenor of the earlier arguments in the case. Several of the justices appeared to agree with Snyder’s lawyer that the Phelpses had no First Amendment protection for intruding on the funeral and targeting epithets at their son, a private citizen. Phelps’ lawyer-daughter Margaret insisted, however, that the demonstration focused on matters of public concern — specifically, “why [soldiers] are dying and how God is dealing with this nation.” Albert Snyder, she said, was merely saying, “I want $11 million from a little church because they came forth with some preaching I didn’t like.”
The nearly unanimous ruling for the Phelpses suggests that the justices came to a different view of the case after a closer examination of the facts. The placards may not have been “refined social or political commentary,” Roberts wrote, but they did refer to “matters of public import,” including homosexuality and public morality. And the Phelpses’ themselves were model First Amendment citizens in Roberts’s telling. They alerted local authorities to their plans and fully complied with police guidance on where to stage their picketing, some 1,000 feet from the church. There was “no shouting, profanity, or violence.”
On those facts, the Phelpses could not be punished except for the content of their message — and that, Roberts said, the First Amendment forbids. Speech on a matter of public concern, he wrote, “cannot be restricted simply because it is upsetting or arouses contempt.”
Alito came to an opposite conclusion mainly by treating some of the Phelpses’ placards — for example, “You’re Going to Hell” — as a personal attack on Matthew Snyder, with the evident but false insinuation that he was gay. Alito also relied in part on a video posted later on the church’s Web site that claimed the Snyder parents had taught Matthew to be “an idolater” by raising him as a Catholic. Roberts said the video was out of the case because Snyder’s lawyer had not raised it in asking the justices to review the decision.
Roberts stressed that the decision was narrow, but a narrow decision can still be a landmark. The court has not always been friendly toward free speech. The court upheld criminal convictions of anti-war activists and anarchists in the early 20th century, of communists in mid-century. Those decisions are today remembered as much for their dissents as for their majority opinions.
It was in another dissent that the great justice Oliver Wendell Holmes Jr. set out the principle that the former New York Times columnist Anthony Lewis used in 2007 as the title for his so-called “biography of the First Amendment.” Rosika Schwimmer, a Hungarian-born pacifist, had been denied U.S. citizenship because she refused to promise to take up arms in defense of her to-be-adopted country. The court in Schwimmer v. United States (1929) ruled against her, 6-3.
In his dissent, Holmes acknowledged that Schwimmer’s views “might excite popular prejudice,” but he extolled what he called “the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.” It is a measure of progress that eight decades later, the Phelpses benefit from that principle, however hateful their thought and deed may be.
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