Saturday, June 25, 2022

What Politics Has Done, Politics Can Undo

"The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them."

That's from the joint dissent in Dobbs. It's true. Nothing about the Constitution changed from the start of this week to the end of this week, or indeed (in relevant part) from 1973 to today. What changed was politics. The conservative right spent fifty years in a slow, grinding war of political attrition -- gaining power, entrenching itself in key institutions, pushing forward -- and Dobbs was the payoff. That's a political accomplishment, not a legal one.

It is difficult to tell my students that no legal argument that they will learn in my Con Law class will make the slightest difference in terms of potentially seeing Dobbs overturned, just as no legal argument actually played any role in seeing Roe overturned. Nonetheless, it is true. But that just means the relevant arena for fighting is different. What politics did, politics can undo.

There is a bruising fight coming. There is no weird trick by which Democrats can win it in a one-punch knockout tomorrow. It will likely take years. Overturning Roe took Republicans nearly fifty years. God willing, reviving Roe will not take that long. Indeed, my fondest dream is that the reversals happen while at least some of the current GOP justices are on the Court. I want them to be there as their work crumbles to dust, I want them to mewl helplessly as their precedents (and I don't just mean Dobbs here) are brushed aside as aberrant malignancies on the constitutional body politic. But it will take a sustained, disciplined political campaign, at all levels of government, that matches or even exceeds what anti-abortion advocates threw at the issue for the past fifty years.

And while no, "just vote" is not a sufficient part of that strategy, yes, voting is a necessary and indeed critical and central part of that strategy, and anybody is who is indulging in mocking voting or undermining voting or depressing voting is functionally abetting the anti-abortion cause no matter what else they claim to be doing on the issue. All the other components of fighting for abortions rights in 2022 -- from protests to strikes to mutual aid programs to deleting your period tracking apps -- are at most rear-guard actions without more Democrats in power. It doesn't matter who the Democrat is. Yes, even the supposed "pro-life" Democrats. Why? Because when Democrats, as a party, are in a stronger position, the gravitational pull of politics moves all Democrats in a pro-choice direction. It's no accident that Joe Manchin, who long has presented himself as "pro-life", is now talking about codifying Roe. It's also no accident that Susan Collins, who long has identified as "pro-choice", was a key player in ensuring that the anti-Roe majority was present on the Supreme Court. Republican power alters the center of gravity of politics in an anti-abortion direction even if individual Republicans claim to be pro-choice; Democratic power does the oppose even if individual Democrats claim to be pro-life. It's obviously better to have pro-choice Dems than pro-life Dems, but it's better to have any Dems than any Republicans in office. If nothing else, Susan Collins is testament to the strategy that if keep control of the dice long enough, eventually the party apparatus will win out.

I won't claim to be especially impressed with the manner in which the Democratic leadership has responded to Roe's demise -- but then, crushing defeats are rarely pretty for the defeated party. Nonetheless, unless more Democrats are elected, there is no hope of reviving Roe. It's that simple. There's no substitute for having power.

Thursday, June 23, 2022

The Eighth Circuit's Boycott Ruling Does a Lot More and a Lot Less Than You Think

Yesterday, the Eighth Circuit sitting en banc upheld Arkansas' law prohibiting government contractors from boycotting Israel during the tenure of their contract. The ruling makes for interesting reading, more because of what isn't said than what it is. At one level, the ruling seems to have dramatic implications extending far beyond the case of Israel. And on another level, the ruling (including the solo dissent from Judge Kelly) barely even discusses what I would consider to be many of the critical issues in play.

First thing's first. As many of you know, I clerked on the Eighth Circuit, and it is now as it was then a very conservative court. JTA's bland statement that "The Eighth Circuit is considered to have a conservative makeup" does not do it justice. There is a grand total of one Democratic appointee serving on the court, the inestimable Judge Jane Kelly. While it lacks the outright nihilist streak that has afflicted the Fifth Circuit of late, it is fair to characterize the Eighth Circuit as among the most right-wing courts in the country.

In any event. The Arkansas law requires that state contractors certify they will not "boycott Israel" for the duration of the contract. "Boycott Israel", in turn, is defined to encompass doing any of the following three things “in a discriminatory manner”:

(1) “engaging in refusals to deal”; 
(2) “terminating business activities”; or 
(3) taking “other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories.”

The court essentially divides its analysis in two. One question is whether things like "refusals to deal" or "terminating business activities" should be seen as potentially implicating First Amendment values (that is, are they expressive). The second question is whether the third clause, covering nebulous "other actions", includes activities that are unquestionably First Amendment protected (e.g., writing an editorial supporting BDS -- which presumably would be "intended to limit commercial relations with Israel"), or whether that clause should be read to only cover commercial conduct akin to that covered in the first and second clause.

The first question basically gets to the issue of whether "boycotts" are First Amendment protected. Citing Rumsfeld v. FAIR, the majority concludes they are not, because boycotts are non-expressive conduct that only garners an expressive meaning if accompanied by explanatory speech. The venerable NAACP v. Claiborne Hardware case does not control, the court says, because Claiborne only extends to the speech that accompanies the boycott (e.g., the signs and pickets around a store), not the "action" of the boycott itself.

This is a big ruling. The holding that the "action" of boycotting falls categorically outside First Amendment protections is a major decision, and one that deserves every bit of public scrutiny and inquiry that this decision is getting. In that respect, the Eighth Circuit decision is getting the proper amount of attention and concern.

This makes it all the more strange the fact that the court itself doesn't act as if its conclusion was a big deal. Its holding was delivered in conclusory fashion at scarcely three pages worth of analysis. While the Eighth Circuit does tend to prefer relatively terse opinions over the long, rambling, and often self-indulgent treatises that other circuit courts typically issue, there's little indication that it viewed the "are boycotts speech" question as a substantial issue. 

Likewise, most of the dissenting opinion also does not really question the majority's assumption that boycotts are not speech. Indeed, far more of the debate between the majority and dissent focuses on the second question -- whether or not the Arkansas law, in its third provision, captures activity that is unquestionably First Amendment protected. This is a matter of statutory interpretation -- what is the best way to read the statute under Arkansas law? -- and while that may be an interesting question to some, but it is certainly not what is driving the interest over this case. Yet nearly all of Judge Kelly's solo dissent focuses on this second question, while arguably taking for granted the seemingly big sweep the court makes regarding the first question. The result is that the "boycotts are speech" position -- fervently held and believed in by substantial sectors of the American people -- neither gets a substantial challenge (from the majority) nor a substantial defense (from the dissent). This is a very, very odd omission.

Judge Kelly does not spend much, if any time, arguing that the "action" of boycotting is First  Amendment protected. Rather, her position is that the law goes beyond regulating non-expressive economic activity and captures purely expressive speech (again, the proverbial pro-BDS editorial or flyer). On my quick read, both majority and dissent have plausible arguments for what the best read of the Arkansas statute is -- but again, that is not the issue anyone actually cares about. A ruling that says "Arkansas' law is unconstitutional because it does not just target the act of boycotting but also pure expression supporting a boycott" should be equally upsetting to critics as "Arkansas' law is constitutional because it only targets the act of boycotting and does not cover pure expression supporting a boycott." Yet that appears to be the locus of the dispute between majority and dissent.

Judge Kelly at most only alludes to the questions that many of us view as central to a case like this. For example, the very end of her dissent briefly suggests that the law does not just cover what the contractor does in the course of fulfilling his or her contract but also "prohibits the contractor from engaging in boycott activity outside the scope of the contractual relationship 'on its own time and dime.'" This is something I've long felt was important in distinguishing valid versus invalid state regulations in this field. Is Judge Kelly correct that Arkansas' law does limit the contractor's "own time" behavior? Does that make a difference? Neither majority nor dissent really say.

Likewise, the seemingly key question of whether boycotts are at all "expressive" is given scant attention. The majority cites FAIR to say they are not, because the conduct would not be understood as "expressive" absent additional speech explaining the intended meaning. In FAIR, the question was whether a law school could refuse to allow military recruiters on campus as a means of protesting Don't Ask Don't Tell; the Court said that was not expressive because an observer wouldn't know that the recruiters' non-presence was meant to be a message sent from the law school absent the law school saying "the recruiters are not here because we are sending the message that ...."

There is some purchase to applying FAIR to the case of boycotts. Imagine two people walk into a store. They both see a Hewlett-Packard computer on sale. They both then walk out without buying it. Have they "boycotted" HP? An observer would have no way of knowing absent the customer explaining their behavior as a boycott. After all, there are a myriad of other reasons why one wouldn't buy an HP computer; the average observer would not have any basis for assuming that the non-purchase was for boycott related reasons.

However, the logic of FAIR also cuts in the other direction. In FAIR, the Solomon Amendment required that law schools provide access to military recruiters. It didn't matter why a law school didn't want to provide such access (whether for "expressive" or "non-expressive" reasons); the schools had to provide the access regardless. In this way, the law didn't single out "expressive" objections for singular opprobrium; it treated the expressive and non-expressive objectors exactly the same (i.e., by bulldozing the objection).

Anti-boycott laws, though, are different. The Arkansas law here certainly does not say "every government contractor must buy Israeli goods". There are myriad reasons why a contractor might not purchase from an Israeli vendor, and for the most part they remain free to do so. The only time they are forbidden from doing so is when their action is a boycott. But that means that, unlike FAIR, the hitherto hidden expressive character of their conduct is what distinguishes licit and illicit behavior. Judge Kelly does allude to this in a footnote, pointing out that the ordinary meaning of  "boycott" (undefined in the Arkansas statute) "includes an inherent element of expression" -- it is a refusal to buy that is done as a means of protest or disapproval. Hence, the contractor's action is only illegal if it is expressing a particular (disfavored) message -- something that should spark obvious First Amendment concerns.

We should recognize we're treading on very precarious terrain here. While not defining "boycott" directly, the Arkansas statute frames what is prohibited as "discrimination" against Israel. The risk that First Amendment protections for "boycotts" could generate First Amendment protections for "discrimination" is by no means unfounded, particularly in the era of Masterpiece Cakeshop and First Amendment Lochner-ism. Applying the above analysis to anti-discrimination claims, one can imagine a restaurateur refusing to seat a Black patron, then defending himself by saying "there are all sorts of reasons why I might not seat a patron; yet what makes my conduct illegal is the message I intend to convey -- that I object to Black people." Courts have not (yet) accepted that logic, and there are some bases for making distinctions here. But ask yourself how much you want to prop that door open for Alito and company by going all in on "refusal to engage in business transactions with disfavored groups is your First Amendment right!"

Finally, one other nettlesome issue about the Arkansas law that comes to my mind is the potential viewpoint discrimination problem. Different states have written their anti-BDS laws in different ways, and I've noted before my strong preference for those which do not single out Israel for special treatment but instead craft a broader rule forbidding, e.g., discrimination on basis of nationality or national origin. Arkansas' law is not like that -- it provides enhanced protections for Israel and only Israel. Contractors are apparently free to boycott Palestine, or France, or Germany, or Russia or Ukraine or China or India or Zambia without consequence.

This to me generates a serious viewpoint discrimination problem. As Justice Scalia pointed out in R.A.V. v. City of St. Paul, even where a state has legitimate reasons for restricting certain types of speech -- and we can stipulate for sake of argument that nationality-based discrimination, even where styled as a "boycott", is one such case -- it "has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules." If Arkansas thinks this sort of behavior has to be restricted, it has to restrict on both sides of the ledger -- it cannot single out one side of the controversy for special restriction because that side represents the disfavored viewpoint. After all, we might not be aghast if a state required its contractors to certify that they do not discriminate on the basis of race; I think we'd be far more concerned if a state only required them to certify they do not discriminate against White people, while being a-okay with contractors who discriminate against other racial groups.

In any event, the Eighth Circuit decision devotes cursory, if any, attention, to all of these issues. That applies as much to Judge Kelly's dissent as Judge Kobes' majority opinion. Normally, I'm not upset by the Eighth Circuit's preference for shorter and more compact opinions, but here I think they made a very big move without fully thinking it through or potentially even realizing it. This case very well could end up before the Supreme Court, and with the court that we have who knows what hash will be made of both First Amendment and anti-discrimination legal guarantees?

Tuesday, June 21, 2022

The Ministerial Exception and Neutral Rules after Carson v. Makin

States like to give money to things. They like to fund schools, or recycling campaigns, or building repairs, or sports programs. And sometimes, religious entities are among organizations who conduct the program the state is funding -- they run the school, or the recycling campaign, or the the building, or the sports program. In such scenario, there are constitutionally-speaking three possibilities:
  1. The state is prohibited from giving the money to the religious entity. Funding the religious organization is an Establishment Clause violation.
  2. The state is required to give the money to the religious entity. Refusing to fund the religious organization, when other comparable organizations are funded, is a Free Exercise violation.
  3. The state can choose whether to give the money to the religious entity. There is "play in the joints" between the Free Exercise and Establishment Clause issues, and states can choose how they want to resolve that tension.
Today, in Carson v. Makin, the Supreme Court took a big step towards Door #2. The Court struck down a Maine program which (for certain rural areas lacking public schools) funded private schools, but only if those schools are non-sectarian. If Maine is offering parents funds to send their kids to private schools generally, it cannot withhold those funds if the parents elect to send their children to a religious academy. Religious schools must be eligible for generally-available funding on the same basis as any other "comparable" private school.

In making this ruling, the Court distinguished (and significantly narrowed) an older case, Locke v. Davey, where the Court upheld a program which excluded ministerial training from an otherwise generally available scholarship program. The Carson Court said Locke was limited only to circumstances where the school was specifically training ministers; not "religious education" more broadly.

This got me thinking, however, about what options are still available to a state like Maine which is perhaps leery about sending its tax dollars to directly support religious education. Carson does not directly say "states must fund religious education" after all. It merely says that states must allow religious schools to obtain funding when they would otherwise be eligible based on the general criteria the state uses for assigning funds.

So imagine the following rule: "No school shall be funded unless each of its employees is fully subject to anti-discrimination rules." The state, it is fair to say, has a strong interest in ensuring that the subjects of its funding abide by and are protected by anti-discrimination rules. Still, anti-discrimination law contains certain exemptions, one of which is known as the "ministerial exemption" -- ministers are not subject to anti-discrimination protections. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Court expanded who counts as a minister beyond the proverbial priest or Rabbi to include many teachers at religious institutions -- these teachers now cannot sue if they are the victims of discriminatory conduct. Religious schools are relatively likely to have such "ministers" on the payroll, so they would run afoul of the neutral rule, and would not be eligible for state funding.

Whether this gambit will work depends a lot on how it is phrased and the degree to which courts are willing to accept it as a neutral rule (which, in turn, may relate to whether there are other schools whose eligibility for state funds would be limited by the rule for reasons having nothing to do with religion). But -- on about an hour's worth of thought -- it seems like a plausible argument.

Sunday, June 19, 2022

The Two Halves of Linked Oppressions

Consider paired statements of the following form:

  • "Freeing Palestine is a queer issue"/"Queer liberation is a Palestinian issue."
  • "Fighting racism is a Jewish issue"/"Fighting antisemitism is a Black issue."
  • "Opposing colonialism is a woman's issue"/"Opposing misogyny is an anti-colonial issue."

One can imagine plenty of other pairings. My question is to what extent the two components of the pair should be read as a making identical or at least inextricable points, such that affirming one half of the pair necessarily means affirming the other.

At one level, when I see statements of this form being made, while typically only one half of the "pair" is presented, the defense of the statement sounds in logic that implies that the other half is necessary as well.

Consider the antisemitism/racism pair as our example. Pressed to defend the claim "fighting racism is a Jewish issue", one most often hears either an argument about intersectionality or an argument about linked oppression. The former notes the existence of Black Jews to observe that advocating for "Jews" necessarily requires fighting the anti-Black racism that some Jews experience. The latter makes a broader contention that various forms of structural injustice are linked together such that a campaign against antisemitism will never be successful unless it tackles racism as well -- these oppressions nourish each other, reinforce each other, and so must be attacked together. Both of these arguments imply that the position could be as easily expressed by its inverse: the existence of Black Jews means that advocating for Black people must mean fighting the antisemitism some Black people experience; the interconnectedness of anti-Black racism with antisemitism means that a campaign that is "solely" against the former will be doomed to fail.

Yet it doesn't seem that it is random or trivial which half of the "pair" is trotted out, suggesting that there are practical differences between the two even if they are nominally express the same analytical point.*

One difference could be exhortative: which group is being encouraged to act in a particular way. "Palestine is a queer issue" encourages members of the LGBT community to relate in a particular way to Palestine. "Queer liberation is a Palestinian issue" encourages members of the Palestinian community to relate in a particular way to the LGBT community. Partial overlap notwithstanding, those exhortations are being directed to largely different audiences. There may different reasons for appealing to one audience over another, and likewise the relative success of the appeal might be appraised differently for one audience over another.

Another difference between the claims is descriptive: does community X view issue Y as "their" issue? If I'm a member of X, I can make the assertion that yes, it is (even if it is perhaps aspirational); but I can't necessarily make that claim about a community not my own -- so as a Jew, I can proffer that anti-racism is a Jewish issue, but it's harder for me, not being Black, to say authoritatively that antisemitism is a Black issue. Even if we accept that a non-member is entitled to make such an assertion about a group-not-their-own, again, practically speaking such a claim is less likely to be viewed as authoritative. And for the same reason, the different half of the dyad suggests different people who can validly contest the claim. Even if they are analytically wrong, it obviously matters if descriptively members of X seem to quite loudly deny that Y is in fact "their" issue.

I'm a bit of skeptic about too-easy claims about linking up all oppressions, which I think can paper over legitimate tensions and conflicts both across and within groups. So I don't think claims of the above pairings being necessarily tied to one another are self-evident as analytical propositions (even if they may still be valid moral imperatives). But I really just wanted to flag some fuzziness in how these pairings are used and the sometimes submerged implication of which half of the pair is forwarded; consequences which are elided insofar as the underlying normative argument presents the two halves of the pair as analytical equivalents.

*  Perhaps the most striking iteration of this asymmetry -- and I know I've made this point sometime in the past, but I cannot find the post -- comes in the assertion "Jews will not be free/safe/liberated until Palestine is free." True or not, I have never once heard this argument paired with its flip: "Palestine will not be free until Jews are free/safe/liberated", even though the analytical logic suggests both have to be true. The implicit justification for the omission is usually that Jews are already free/secure/liberated -- which betrays an internal contradiction off the bat (the first half of the pair stipulates that Jews are not free yet). A slightly better apologia is the assertion that the latter goes without saying, but to my ears that is far too cavalier. The reality is that it is perfectly possible to imagine the existence of an entity broadly recognized as a free Palestine in a universe where antisemitism still exists; the assertion that the absence of the latter is necessary for the former to obtain isn't actually accepted as anything but a debater's point. The far harder work is fighting against antisemitism even when it has nothing to do with whether there is a free Palestine or not; just as the harder work is fighting for a free Palestine even when it has nothing to do with furthering Jewish freedom.