The U.S. Supreme Court: Free Speech Trumps Public Accommodations Law

I contend as a matter of reasoned opinion rather than infallible fact that the Free Speech protection in the U.S. Constitution applies to not only human beings, rather than to non-human legal “persons” (e.g., corporations), but also to speech where the purpose is speech rather than something else. I have written elsewhere on the mistake in treating corporations as if they were human beings, so I treat only the second claim here. I reference the first claim only as context for my broader claim that the U.S. Supreme Court has tended to over-extend applications of the free-speech clause not only beyond its original intent, but also common sense. The latter violation is particularly astonishing. 

That clause, I submit, is oriented to forbidding the state from blocking or punishing what a person would otherwise say or write. The state compelling speech is a different matter, though that too ought to be prohibited in a free society. Also, where the purpose is business, standing up to the state in what a person says or writes is yet another matter. So if I open a business that sells ice-cream, for instance, I would be mistaken were I to view having chocolate ice-cream as a matter of free speech. I would not be selling chocolate ice-cream in order to say something, but to sell a product.

In Creative LLC v Elenis (2023), the U.S. Supreme Court decides in favor of an evangelical Christian whose business includes web-page design for weddings. She maintained that her religious belief against gay marriage should be an exception to the state’s public accommodations law, which bars discrimination against a protected class. Colorado, on the other hand, “argued that its Anti-Discrimination Act regulates sales, not speech, to ensure ‘equal access and equal dignity.’”[1] In other words, making and selling a product (or service) in order to profit financially is not speech. 

So Gorsuch, who wrote for the majority, incorrectly refers to “speech like Ms. Smith’s conveyed over the internet.”[2] At the very least, it is misleading to characterize Smith as conveying speech on the internet, for her purpose and the contours of her activity was to make and sell a product. She was not posting essays, for instance, or constructing her own website (her company’s website too was oriented to selling products rather than conveying “speech”). For a bit of context, the Russian bloggers posting essays online on the Ukraine war at the time would have shaken their heads in disbelief had someone told them that the website of a business engaged in selling products is really about speech rather than business. Even Target, an American retail company, did not put gay Pride flags for sale on the company’s website to make a statement; rather, the company was selling a product. Were the company making a political or ideological statement by adding gay Pride colors to the website, then that would fall under free speech. Smith was not making a political or ideological statement; rather, she was selling a product—webpages for weddings.

Gorsuch attempts to hold the ruling back from enveloping business in its entirety by carving out the production of a product that is "expressive" of the person who makes the product. But a web-page is not a piece of art unless that is the purpose. Also, virtually any product could be said to be "expressive," for product-design itself expresses the work of a designer. Put another way, Smith's own personal website, or even the website of of her business, can be said to express herself in a way qualitatively different from the websites she makes for clients. Gorsuch conflates the two and thus ignores the distinction. He thus unwittingly set up a slippery slope by which virtually anyone in business can obviate public-accommodations law simply by arguing that one's work expresses oneself in some way. Locke, after all, argues that a person mixing one's labor with a piece of land is sufficient to turn it into private property. 

The real tension associated with public-accommodations law is not free-speech; rather, the right of private property is that which is circumscribed by the government mandating that protected classes be served. Smith could have argued that her business’s niche was Biblically-based weddings, based on the fact that the business was her private property. For she was using her property for productive rather than speech purposes, and the substance of her enterprise was making and selling products rather than publishing speeches or essays, or even making a political or ideological statement.

Public accommodations law is not absolute. A store manager of a Starbucks coffeeshop had demonstrated this in having two people removed because they had refused to purchase anything and then ignored the manager’s authority, which in turn is rooted in the right of private property. That those two people were of the Black race is besides the point; anyone, protected class or not, who sits at a table in a restaurant but refuses to order anything is subject to the right of private property. Insecure, Starbucks’ upper management capitulated to the unfair criticism by showing the public that the company could discriminate against Caucasian employees, including a regional manager, who had won her case in court less than a month before the Supreme Court’s decision on “free speech.”

Unfortunately, the dissenting opinion of the court obsesses over discrimination, and President Biden said the court’s decision was unthinkable. The opposition missed an opportunity to point to the jurisprudential mistake in the majority opinion, wherein selling a product is itself characterized as free speech. This rather basic category mistake was missing from the dissent, given the salience of ideology on the court, which in turn is another problem.  I submit that public discourse in the U.S. too often skirts or overlooks underlying problems, while obsessing on flash-point ideological agendas. I write in large part to uncover depth such that it might be more highly valued and sought after.

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1. Andrew Chung, “US Supreme Court Deals Blow to LGBT Rights in Web Designer Case,” Reuters, June 30, 2023.

2. Ariane de Vogue and Devan Cole, “Supreme Court Limits LGBTQ protections with Ruling in Favor of Christian Web Designer,” CNN.com, June 30, 2023 (accessed same day).

Encroaching Political Consolidation: The Weakening of the U.S. Federal System

It is much easier to point out the sliver in the other person's eye than the plank in one’s own. Regarding the gradual political consolidation of power at the federal level in the U.S. at the expense of not only the member-state governments, but also the federal system itself, it is easier for a political party to dismiss its own contribution than to take a wider stance including the continued viability of the federal system, or federalism, itself. As a result, both of the major parties has contributed to the increasing political consolidation at the expense of the check-and-balance feature that a balanced federal system has.

Texas’s former governor, Rick Perry, wrote in his book, Fed Up!, “From marriage to prayer, from zoning laws to tax policy, from our school systems to health care, and everything in between, it is essential to our liberty that we be allowed to live as we see fit through the democratic process at the local and state level.”[1] If it is essential to the liberty of the people that these policy domains be legislated and enforced at the member-state level, then any backtracking on any of these areas would diminish freedom. Hence the considerable consolidation of power by the U.S. Government since the war between the U.S.A. and C.S.A. from 1861-1865 has come at a cost. 

For instance, U.S. Government can preempt state legislating on a given domain even if no federal legislation is even attempted. The citizens of Texas would be hamstrung should they want the Texas Government to legislate on what is a serious problem in Texas. Preemption ignores that a given societal problem can be worse in one of the member republics than in others. The E.U.'s doctrine of subsidiarity, wherein the lowest level of government in the federal system that can deal with a problem is preferred, gives the states the preference over the federal government. 

So too does the fact that the governors of the states sit on the European Council, which is roughly equivalent to the U.S. Senate, where senators can ignore their respective governments to vote in such a way that makes reelection more likely.[2] The interests of the citizens of Texas are not the same as the Texas Government. Given the change to popular election for U.S. senators, the member-state governments had no power at the federal level to stop the federalizing of health-insurance legislation (e.g., Obama's Affordable Care Act).[3] 

American federalism can be repaired and strengthened. I'm not sure how many people realize the extent to which the federalism has deteriorated. Even people such as Perry who have emphasized a more balanced federal system have advocated policies that would add to the encroaching consolidation. “In one of his more well-publicized shifts, Mr. Perry proclaimed that gay marriage was an issue for individual states to decide, but backtracked in [August 2011 and said] he supports a federal amendment banning gay marriage. He . . . also signaled support for various federal actions to restrict abortion rather than leaving the issue to states.”[4] The governor of a large U.S. state put an ideological agenda, even one that is popular with the Texas electorate, before his own warnings of political consolidation. If federalism is to be sabotaged even by its high-level advocates, the problem has indeed become intractable. 

More generally, if Republican office holders want to federalize “social issues” and expand the military-industrial complex while Democratic officials insist on federalizing health-insurance, housing, and food aid for the poor while both parties federalize large portions of criminal law, then not only is the federalism pushed further off from a federal-level/state-level balance, but also the blame can be pushed to others such that no party takes on the matter of fixing the federal system. Any given representative could claim that his or her desired federalization would not break the camel’s back (i.e., effectively keep the federal system from working given the consolidation). Don’t look at me; its the other guy.  

The truth may well be that no elected official at the state or federal level is truly interested in the long-term viability of the governance system; the motivation is more a function of what is politically expedient at the time. Each politician may authentically believe that his or her top issues should be made to apply to all Americans—in every member state. In terms of an enabling context, perhaps the American cultures had become too egoist and short-sighted to support the difficult decisions needed to repair the American federal system. In fact, the cultures may even have contributed to the problem itself being one of America's blind-spots. The result is that everything is federalized and the state governments can no longer operate as a check on the federal level. As each official is busy imposing what is most important to him or her on as many people as possible, the question needing to be asked may therefore be, who, exactly, is minding the store?

1. Rick Perry, Fed Up! Our Fight to Save America from Washington (New York: Little and Brown, 2010). A critique of Perry's book interpretation of federalism can be found in American and European Federalism, available at Amazon.

2. Since 1913, the American states have switched from their respective governments appointing U.S. senators to the popular election of them. If it still be claimed that the senators still represent their respective governments, then popular election sets up a conflict of interest. In my view, the U.S. Senate could strengthen the American federal system by having the governors represent their respective states, as is the case in the European Council. See Essays on Two Federal Empires: Comparing the E.U. and U.S., available at Amazon.

3. The U.S. Senate, like the E.U. Council would meet formally in summits and for occasional special purposes (e.g., confirmation hearings where necessary) rather than more often, given the workload of a chief executive and head of state. The Senate's staff, like its counterpart in the Council, and the respective staffs of the governors in the member-states would do much of the coordinating and other work.

4. Manny Fernandez and Emily Ramshaw, “As a States’ Rights Stalwart, Perry Draws Doubts,” New York Times, August 29, 2011. 

A Gay Judge on California's Anti-Marriage Proposition in 2010: A Judicial Conflict of Interest?

In 2010, Chief Federal District Judge Vaughn Walker issued a ruling that declared Proposition 8 (against gay marriage) an unconstitutional violation of gay Californians’ civil rights. After retiring in February of the next year, the judge revealed that he was in a 10-year-old relationship with a same-sex partner. The question is whether a reasonable belief that the judge would stand to benefit from the ruling means that there was a personal conflict of interest sufficient to have the judge’s ruling vacated. Amid the emotions swirling around issues such as gay marriage that involve the uneasy mix of personal matters and public scrutiny, an urgent need exists for ethicists and jurispruds to isolate the pernicious problems inherent in the conflict of interest phenomenon so we all can have faith that such issues are decided impartially in substance as well as appearance.
Andrew Pugno, one of the lawyers defending Proposition 8, has stated that the Judge Walker’s long-term relationship “creates this unavoidable impression that he was just not the impartial judge that the law requires.” That the judge withheld the information until well after his ruling suggests that even he may have thought the very existence of his relationship (even aside from any intention to wed) would be sufficient to trigger claims of a conflict of interest because he could stand to benefit personally from the ruling, according to the lawyer. Therefore, the conflict of interest lies not in the judge’s sexual orientation or in his particular state of mind, but, rather, in his being in a long-term relationship that could benefit from the option to marry. Obviating a personal conflict of interest based solely on one’s sexual orientation would be too general and it would constitute prejudice. Likewise, deciding another’s intentions is too subjective a basis for a judicial ruling on a conflict of interest.

A reasonable conclusion that a person stands in a particular position to gain a specific benefit can carry muster in a legal ruling dealing with a person’s conflict of interest. According to Pugno, it is “all about the fundamental principle that a judge really can’t sit to hear their own case when they have an interest in the outcome.”  

In deciding on whether Walker should have recused himself, Judge Ware conflates particular and general interests, arguing in effect that the former do not constitute a conflict of interest because the latter should not. "The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief," Ware wrote in his decision. Ware treats the specific connection of benefit between being in a 10 year same-sex relationship and having same-sex marriage legalized as equivalent to the general connection between a woman ruling on a case involving a woman.

Similarly, Ted Olson, whose wife died in the attacks on 9-11-2001, has argued that requiring judges to reveal elements of their personal lives sets a dangerous precedent. “What would a judge do who was Mormon knowing the Morman Church took such an active role” in campaigning for Proposition 8? What would a judge who had a nephew or niece or son or daughter who was gay or lesbian do? We have an unlimited number of permutations of what a judge might be asked to disclose.” In short, Olson sees a slippery slope toward a most undesirable outcome wherein recusals could be commonplace and at times for rather intimate reasons.

However, the slippery slope argument may be overdrawn, and it may be surmountable altogether, especially if one distinguishes between specific and general connections. Vikram Amar, a law instructor in California, argues that a recusal should be required because of “a specific and imminent benefit” rather than “some abstract and future benefit.”  According to Amar (and Ware), Judge Walker does not meet this test. I disagree.

That the judge was in a long-term relationship and was sufficiently old to retire means that the benefit would be both specific (i.e., him getting married) and imminent (i.e., given his age). For a couple discussing marriage, the discussion is not abstract. In fact, it can get down to whether a joint checking account would be opened and whether there would be a prenuptial agreement. Furthermore, couples who discuss marriage do not typically say, “maybe in ten or twenty years, we might get hitched.” The time frame is usually months or a few years, with a realistic expectation that a decision to marry would result in marriage.

One might counter that an intention must also exist—that it is not sufficient for a specific and imminent benefit to be possible.  For instance, in hearing the recusal case on June 13, 2011, Judge Ware asked the Prop. 8 lawyer, “I’m asking you to tell me what fact you would have the court rely on to suggest that Judge Walker wanted to change, not maintain, his relationship?” The mere fact that Judge Walker had been in a serious relationship “does not put him in the shoes of what the plaintiffs were doing, unless you cite to me some facts that he was desirous of the relief they were seeking,” Judge Ware said.

However, pegging desire is a tricky business, and far too subjective to serve as the linchpin of a judicial ruling; someone in a personal conflict of interest would only need to deny having been interested in one of the interests in conflict. When a conflict of interest is observed, the two interests involved are viewed as standing in themselves, rather than being conditional on being desired. That is, in recognizing a conflict of interest, the very existence of the interests is sufficient. Therefore, a recusal ruling should not stand on whether an intention or a desire was present. Given human nature, standing to gain is sufficient to make a conflict of interest situation sufficiently baleful that it should be eviscerated. Judge Walker stood to gain specifically and imminently even if he did not intend to marry. Therefore, we need not inquire as to his personal views or plans in order to conclude that his ruling ought to be vacated on account of his particular conflict of interest.

I would add, moreover, a criterion to Amar’s test for a personal conflict of interest in order to better counter the squalid slippery slope argument. Specifically, it is significant whether the benefit is to the person himself (or herself) or to a person or organization related to the person. To be sure, even having a relative or friend standing to benefit can be sufficient to give rise to a personal conflict of interest.

Indeed, on the very day of the recusal hearing on Judge Walker, the U.S. Supreme Court handed down a unanimous decision that state ethics rules that bar public officials from voting on matters because of a conflict of interest do not violate free-speech rights because voting is not the representative’s speech, but, rather, “a mechanical function of government.” In my view, treating voting (or  money) as speech evinces a category mistake, so Scalia’s opinion for the Court is “spot on” in this regard. For our purpose here, it is significant that the ruling approved the disputed Nevada law, which prohibits officials from “voting on an issue when their judgment could be affected by a relationship to someone in their household, a relative, business partner, or a person ‘substantially similar’ to those specified.” That is, a personal conflict of interest is assumed to extend to benefits to people bearing a significant relation to the person in the conflict.

The vagueness in the “substantially similar,” which was left to the state court to evaluate, may evince the possibility of a slippery slope in extending beyond benefit to the person himself. That is to say, extending the personal conflict of interest to include other people standing to benefit introduces a problem not present in a specific and imminent benefit to the person himself. Therefore, I contend that “benefit to the person” should be added to Amar’s criteria of specificity and temporality, with “benefit to others in a significant relation to said person” being added too, though secondarily and with receding importance as per the significance of the relation.

Even aside from the vague language, no clear boundary line exists between “significant” and “insignificant.” Nevada would have done better in using “significant relation to” and cited examples such as relative, friend, and business associate. Furthermore, a specific and imminent benefit to oneself can be localized, whereas one’s affinities to other people and organizations can be wide-open. Generally speaking, the bigger or broader the group/organization, the less an individual is apt to be invested in a benefit to it. For this reason, and because benefits to others are not as motivating as benefits to oneself (given the salience of self in self-interest, and self-interest in turn in human motivation), a distinction between “benefit to others” and “benefit to self” can and should be made in reference to personal conflicts of interest. To be sure, both are worthy of note in terms of personal conflicts of interest, but “benefit to self” ought not be held back due to problems associated with invoking “benefit to others.”

Therefore, in cases in which the person in a personal conflict of interest stands to benefit in a specific and imminent way, the slippery slope argument that can apply to “benefit to others” should not be invoked. In other words, “benefit to the person” should be added to Amar’s criteria, while “benefit to others” should be tailored so as to obviate any such slope and applied differentially depending on the degree of significance in the relation. Cases in which a spouse or close relative stands to benefit would come after “benefit to self” in importance, followed by cases involving friends and business associates. Similarly, a hierarchy can be established based on organizational affinities. For instance, a Republican would have more interest in a benefit to the Republican Party than to a more general organization such as the United Nations. My point is that discerning degrees of significance need not detract from the applicability of the “benefit to the person” criterion, or even from the secondary “benefit to others.”

Judge Walker himself stood to gain something specific and imminent that could reasonably be expected to benefit him even if he didn’t desire it at the time of the case on Proposition Eight. His standing to benefit is of more importance than had a significant relation to him, such as a gay son or daughter, stood to benefit. That is, he had a material vested interest in the ruling sufficient for him to have recused himself, given a judge’s deontological (duty-based) interest (i.e., responsibility) in being impartial—including having the appearance thereof. The latter is particularly important given the importance of legitimacy in judicial rulings (courts not having their own police force to enforce their rulings). Therefore, I contend that Vaughn Walker should have recused himself and that the Prop 8 advocates have a case in having his ruling vacated on the grounds of a conflict of interest particular to him.

Lest it be suggested that Walker should merely have made his conflict of interest known before the case, merely announcing a conflict of interest is not sufficient to nullify its force or appearance. Better than knowing that a judge has a personal conflict of interest, another can be assigned without such a conflict. As there are presumably other federal judges in California, the conflict of interest could have been easily obviated. That it was not tells me that we as a society discount the problems inherent in the conflict of interest phenomenon.

I suspect that we do not realize sufficiently the ethical problems that conflicts of interest can cause. Even if people do not always act unethically when in a personal conflict of interest, I contend that such conflicts are inherently unethical. Society seems not to agree. As a result, we do not do enough to avoid or otherwise deconstruct them. We believe that somehow such conflicts do not really matter, or that they lose their power if they are made transparent. In other words, we are a bit too naïve for our own good, and then we are surprised when someone in a conflict of interest acts unethically.

Sources:

The Associated Press, “Gay Judge Targeted for Same-Sex Marriage Ruling,” msnbc.com, June 13, 2011.
The Associated Press, “Judicial Bias Is Alleged in a Ruling on Marriage,” The New York Times, June 14, 2011.

Joan Biskupic, "High Court Says Ethics Rules Don't Violate Speech," USA Today, June 14, 2011.
Lisa Leff, “Gay Judge’s Same-Sex Marriage Ruling Upheld,” Associated Press, June 14, 2011.

See also: Institutional Conflicts of Interest, available at Amazon.

The U.S. Supreme Court: Too Much Ideology in Jurisprudence?

Should the electorate in a republic be able to remove Supreme Court justices due to their past decisions on particular cases? Can this basis be distinguished from removing a justice for judicial incompetence? One thing is clear: the general public does not have the technical expertise to perform a “supervisor’s evaluation” on a judge. Obviously, anyone can see that someone who skips work on a regular basis is not fit for the job, but this is different than evaluating a job by the technical criteria of the profession. Distinguishing between a particular decision and general judicial approach, for example, is more difficult. Moreover, it can be difficult to balance the rights of popular sovereignty (i.e., rule by the people) against the rule of law without respect to majority opinion.

The justices of the U.S. Supreme Court in 2012.

To the extent that a justice’s interpretation of the law involves his or her political ideology given the discretion or latitude involved in jurisprudence, the electorate in a republic has a claim on who should serve as a justice. To be sure, constitutional amendment is another means by which the people can overcome a supreme court, though this route is cumbersome and limited to a particular case or area of law. The element of political ideology in a constitutional-law decision means that a clear line of separation does not exist between politics and constitutional jurisprudence. Accordingly, the following view can be criticized.

“I think it’s a mistake for a party, as a party, to state a position that a certain judge should be thrown out, because then you are introducing partisanship into a system that is supposed to be nonpartisan,” said Bob Martinez, a prominent Republican lawyer who was once the United States attorney for the Southern District of Florida. “And when you have elected officials, on the right or left, criticizing judges publicly it can become very dangerous and it can undermine the public’s faith in the judiciary.” It is also very dangerous to have a very few number of unelected citizens serving as justices making de facto final decisions involving political ideology. Moreover, the ideological differences frequently present on a bench means that partisanship is already present, even if it is subtly filtered through the prism of jurisprudence.

In the case of southeastern Florida, the institution of justice itself can be subject to severe repute—that is, whether it exists at all. Once when visiting Miami, I tried to enter a local bus at the bus-transfer-station at a regional train station. I say tried because just as I was stepping into the bus, a large black man of about 25 years old who was standing to the side just outside the bus body-slammed me against the opened bus-door to force me out of the doorway. Not all the black people had entered, and the man presumed the right to force me out with a slam. The bus driver saw the violence, and yet refused my request that he contact his company and the police. “That’s just the way it is here,” the black driver told me. "You should not have gotten on then." The sheer blatant nature of the violence and the driver’s reaction gave me the impression that anti-white racism is systemic in Miami and that the system of justice there is at best partial, or prejudiced. Days later, I mentioned the incident to a Miami Beach policeman. “We have cameras on every bus; it didn’t happen.” His attitude being obviously corrupted, I thanked him for his time and walked away. The decadence or corruption of a society is systemic in nature; it is best, therefore, simply to avoid such places even for a brief stay.

Given the corruption and anti-white racism in Miami, a political party may have good reason to target three justices sitting on Florida’s Supreme Court for presuming that the criminal justice system can afford to be sacrificed to legal technicalities. That the three justices had “judged” legal technicalities as sufficient to free a man who had tied up and lit someone on fire suggests that the plight of the justices can be tied indirectly (as enablers) to the systemic injustice in Miami-Dade. That is, Floridians looking unfavorably at the decadence in Miami "culture" may judge Florida’s justice system to be inadequate and thus in need of justices who view it as such. It can even be said that removing the justices was a duty of Floridians who oppose outright aggression in public and enabling by county employees.

The notion that political ideology, including whether the system of justice is sufficient for there to be the rule of law in a society, is somehow absent in a constitutional court’s decisions is perhaps one of the most invisible or unknown naiveties in modern Western civics. One does not have to go back to Gore v. Bush (2000) to detect the presence of an ideological agenda in constitutional court decisions. The Citizens United (2010) case, for example, also decided by the U.S. Supreme Court, involves the ideological view that money is speech and corporations are legal persons and thus having the right of free speech. These positions are not founded in jurisprudence, but rather in ideology concerning wealth and power.

Typically, a justice seeks to portray his or her ideological positions through the lenses of his method of interpreting the constitution, as if such a device rendered the moral values as judicial interpretation. For example, Justice Scalia calls his method “originalist,” “original intent,” or “textualist,” meaning that he applies the words in the Constitution as they were understood by the people who wrote, proposed, and ratified them. It so happens that this method is consistent, at least to Scalia, with his social conservatism. Capital punishment was allowed in 1787, so that practice could not have been viewed, at least by the majority of the conventions’ delegates, as cruel and unusual punishment.

The sheer ease with which Scalia claims he can make decisions on cases in which conservative social ideology is salient suggests that something more is going on than constitutional interpretation. Speaking at the American Enterprise Institute in 2012, for instance, he said, “The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.” At the very least, Scalia’s own statement does not privilege judicial interpretation; rather, he describes the possible cases in terms of social issues rather than constitutional doctrines. Put another way, if the cases involving such issues are so easy, then they could (and should) be put to the electorate as referendums. Scalia belies his own (and his colleagues’) relatively unique claim to technical expertise, and thus winds up making my point for me—more is going on in U.S. Supreme Court decisions than simply applying methods of constitutional interpretation to legal doctrines and the facts of particular cases. That “something more” can be excised and assigned to legislatures or the people.

As still another example, the U.S. Supreme Court once again weighted in on affirmative action in October 2012. The Wall Street Journal reported that the "80 minutes of intense argument revealed deep fissures among justices' views on the pursuit of diversity in higher education." The fissures just happen to go along with how liberal or conservative the justices were on social issues. In my view, whether the state governments have a compelling interest in diversity in higher education is not a judicial matter because diversity itself is an ideological value. Elected representatives, or the electorate itself, could decide the matter with more legitimacy than in relying on Justice Kennedy's view on affirmative action.

It is not impossible that a constitutional court itself could put to the electorate questions oriented to the ideological element. This would enable justices to concentrate instead on technical judicial matters, which constitute the “turf” on which the juridical expertise is based. In other words, in not being so greedy or “over-reaching,” the justices and the court itself would have more legitimacy. To those who say that putting a referendum to the people, say on whether capital punishment is cruel and unusual punishment, would introduce politics into the decision, I submit that politics are inherent in the decisions already, given the element of political or social ideology. In short, a direct relationship is possible between a supreme court and the people, bypassing the other branches of government. Just as the U.S. Government can bypass the state governments to have direct effect on the people, the U.S. Supreme Court could talk directly with the people via adding questions to the ballot. Alternatively, a court could direct the chief executive or legislature to decide or put to the people questions concerning ideology that bears on a decision. Not being elected, justices do not have legitimacy in determining such questions. Scalia’s statement reads like one that one might hear in a barber shop (or so I would imagine).

In Iowa after its Supreme Court’s decision on gay marriage, the republic’s electorate voted to remove three of the justices who had joined in the majority opinion. In effect, the majority of those citizens who voted were saying that the decision was not just one of judicial interpretation. To be sure, the court’s decision included the juridical matters of constitutional rights irrespective of majority rule, and constitutional method or interpretation more generally.  Nevertheless, the ideological question of whether marriage as an institution should be extended to couples of the same sex was also in the mix. Separating two elements in one decision and weighing the qualitatively different (though not disparate) strands is very difficult, to say the least.

A conflict of interest exists in majority rule weighing its own right against the rights of individuals or a minority faction, but it is also problematic to rely on nine unelected people to decide a society’s meaning of marriage unless there is also constitutional language on language itself (rather than more general clauses that might pertain). Interpretation without the ideological element presupposes more direct constitutional language than “due process” or “equal protection.” Accordingly, the court and the people, as well as their elected representatives, all have a role in what is regarded as “legal opinions” in constitutional law.

Sources:

Lizette Alvarez, “G.O.P. Aims to Remake Florida Supreme Court,” The New York Times, October 3, 2012. 

Mark Sherman, “Antonin Scalia: Death Penalty, Abortion, ‘Homosexual Sodomy’ Are Easy Cases,” The Huffington Post, October 5, 2012.

Jesse Braven, "Justices Clash on Affirmative Action," The Wall Street Journal, October 10, 2012.

Westboro Church's Anti-Gay and John Galliano's Anti-Semitic Opinions: The U.S. and E.U. Contrasted

The First Amendment protects free speech in the U.S. even if it is as hurtful as signs at a Marine funeral proclaiming "Thank God for Dead Soldiers," the U.S. Supreme Court ruled on March 2, 2011. The Westboro Baptist Church celebrated the death of Lance Cpl. Matthew Snyder in Iraq with signs such as "God Hates You," along with anti-gay messages at his funeral in Maryland in 2006. The late Marine's father sought damages for emotional distress. An appellate court had reversed the $5 million award granted by a district court, and the U.S. Supreme Court concurred with the appellate court's decision.  The Wall Street Journal notes that "Chief Justice Roberts nodded to the wrenching set of facts in the case, writing that 'the applicable legal term— 'emotional distress'—fails to capture fully the anguish Westboro's choice added to Mr. Snyder's already incalculable grief.'"  Crucially, however, the justices of the majority opinion would not fall to the temptation of acting on the emotion that naturally follows hearing of such harm.

Interestingly, on the same day as the American high court's decision, the designer John Galliano was being fired by Dior's CEO and investigated by the French police (for inciting racial hatred with anti-semitic statementsm, which is illegal in at least the French and German states of the EU) for having made anti-semitic insults to a couple with whom he was arguing late at night in a trendy bar (cafe) in Paris. There, the emotions got the best of both the designer and those who reacted to the video posted of his comments (albeit showing only a part of the argument). Perhaps a grieving father at his son's funeral reading signs that thank God for dead American soldiers can be likened to a Jewish couple at a bar hearing that they are lucky their grandparents or parents were not exterminated by the Nazis. It is difficult for the rest of us to know how either feels, or how to compare the pain.

In any case, that any human being would want to hurt another so much is truly a sad commentary on our species that otherwise vaunts itself as being in the image of God. Perhaps the question is what kind of God is being envisioned here. A vengeance is mine, sayth the Lord sort, which Nietzsche condemns in his writings as already discredited on account of having such a sordid divine attribute as vengeance?  The deed is done, according to Nietzsche.  So too, the pain has already been inflicted on the grieving parents and the Jewish couple.  The rest is merely mopping up. 

I contend that the impulsive reaction in Europe to the fashion designer's drunken anti-semetic slurs is inferior to the majority opinion of the American court in the Westboro case because the tolerance of reason is more in keeping with a free society than is vengeance or retribution against a disliked opinion. Chief Justice Roberts emphasized that speech on public issues (of which gays in the military is one) "cannot be restricted simply because it is upsetting or arouses contempt," USA Today reports. Roberts pointed out that the jury at the district court level of the case had been told that Westboro could be held liable for the intentional infliction of emotional distress if the picketing was "outrageous." The chief justice argues that that test is "highly malleable," which is to say, it can change according to what a given person happens to think is outrageous. An old man might think noice in an apartment hallway at midnight is outrageous while a few college students down the hall might simply assume that the party has begun. In such a case, outrageous may have a physiological determinant and thus be innately different depending on the person. Quoting the 1988 case of Hustler Magazine v. Fallwell, Roberts said that liability cannot be imposed on "the basis of jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression." Rather, reason must trump passion in such matters. Regarding the Synder case, Roberts said that the small Topeka-based church's messages "may fall short of refined social or political commentary," but discussed "matters of public import," such as the nation's morality and gays in the military and thus are protected by the first amendment to the U.S. Constitution, which guarantees free speech.  A free society is only really free to the extent that we protect even the opinions of those we loath. Otherwise, society reduces to a primitive matter of excluding those we don't like. Such banal convenience is too decadent for a vibrant republic and society. Reason tells us this. The question is whether we have sufficient impulse-control to proffer the degree of tolerance that is requisite. So actually, the matter pivots on us--Americans and European generally--rather than on Westboro and Galliano. They can make us stronger in spite of themselves if we permit ourselves to rise to the occasion rather than satisfy our immediate gratification.  In the end, it is up to us, not them, what kind of societies we have.

In terms of federalism, the chief justice noted that states can regulate the time and place of the protests, and the church was already contesting some as too restrictive. As of the date of the court's decision, forty six states had enacted laws to minimize picketing near a cemetery during funerals. In terms of federalism, it might be that the states' respective Supreme Courts might have been the proper venue in interpreting the U.S. Constitution in such cases. Generally speaking, if there can be fifty different sets of regulations on protests, there can be fifty different decisions interpreting free speech. It would not be like fifty different foreign policies. As it is, even with fifty different regulations, the final decider is centralized in the U.S. Supreme Court.

Sources:

http://online.wsj.com/article/SB10001424052748703559604576176323629295598.html?KEYWORDS=first+amendment+protects

http://www.guardian.co.uk/lifeandstyle/2011/mar/04/john-galliano-dior-brand

Joan Biskupic and Kevin Johnson, "Westboro free-speech ruling has its limits," USA Today, March 3, 2011, p. 2A.

Gay Marriage in New Jersey

Just after New Jersey’s legislature passed a law legalizing gay marriage, Gov. Chris Christie followed through on his promise to reject the bill by quickly vetoing it and renewing his call for a ballot question to decide the issue. In returning the bill to the Legislature, Christie reaffirmed his view that voters should decide whether to change the definition of marriage in New Jersey. "I am adhering to what I've said since this bill was first introduced – an issue of this magnitude and importance, which requires a constitutional amendment, should be left to the people of New Jersey to decide," Christie said in a statement; "I continue to encourage the Legislature to trust the people of New Jersey and seek their input by allowing our citizens to vote on a question that represents a profoundly significant societal change. This is the only path to amend our State Constitution and the best way to resolve the issue of same-sex marriage in our state.”[1] Why stop at issues requiring a constitutional amendment? Although technical legislation requires representatives to wade through and discern specific ramifications pro and con, broad policy questions could also be subject to binding referendums. That is to say, representatives could be seen as doing only what the electorate cannot viably do.

Whether enacted by a legislature or by direct democracy, a law that takes basic rights away from a minority such as gays could be illegitimate even though passed democratically. Democrats in the New Jersey legislature argued “that same-sex marriage is a matter of civil rights, and that civil rights should not be subject to referendum.”[2] In other words, there are limits even to direct democracy, and the courts have a legitimate role in interpreting whether individual rights have been inordinately oppressed by the will of the majority.

In terms of legitimacy, passing gay marriage by referendum is the most legitimate, and without any need for the courts to step in to look at the matter of individual rights. Next legitimate would be such a law passed by a legislature. Again, the judiciary would not need to look at whether a minority is being tyrannized by a majority. Where a referendum or legislature passes a law or constitutional amendment forbidding gay marriage, as in 30 of the American republics at the time of Christie’s action, the democratic rights of a majority are pitted against the civil rights of a minority. Courts could look at existing constitutional articles to assess whether an amendment is constitutional. However, it is conceivable that such articles could be changed such that an amendment that refuses the right of a minority could not be touched by a court.

To take another example, all of the federal and state constitutional articles that prohibit slavery could be repealed and a new amendment making the practice legal would make it constitutional. No court could touch it because courts are limited to interpreting constitutions. In the case of gay marriage, the current equal protection language could be used to declare a federal amendment barring gay marriage unconstitutional. What if the due process language were changed by amendment and an anti-marriage amendment added? The U.S. Supreme Court could be forced to defend the new amendment if nothing else in the U.S. constitution could render the addition unconstitutional. Where the amendment is to a state constitution, planks from the federal constitution could be used, as was the case in California on Proposition 8 a week or two before the New Jersey legislature passed gay marriage.

From this, we can take away the following points:

1. On matters of broad policy, in which ideological judgment is more salient than technical knowledge, direct democracy is more legitimate than representative democracy. Such policy need not be limited to matters requiring constitutional amendment. Invading Iraq and extending the federal debt ceiling are two cases in point.

2. The majority acting to protect minority rights by legislative means or a referendum is the best case scenario in a republic because no constitutional interpretation by judges is necessary. 

3. Where legislation or a referendum bars a minority from exercising a right, the legitimacy of majority rule is pitted against that of individual rights. Accordingly, the judiciary has a legitimate interpretive role as such matters must be judged.

1. Angela Santi, “New Jersey Gay Marriage Bill Vetoed By Chris Christie,” The Huffington Post, February 17, 2012. 
2. Kate Zernike, “Gay Marriage, Passed, Awaits Veto by Christie,” The New York Times, February 17, 2012.