The Leaked Opinion--Constitutional Nonsense Revisited (Part 2)

In Part 1, we examined the nonsensical, ahistorical, and contra-constitutional argument that "it's-not-in-the-text" of the Constitution. In short, the primary argument in Justice Samuel Alito's leaked opinion--i.e., that a woman's right to choose an abortion is nowhere mentioned in the document--misrepresents the purpose of the Constitution, which was to organize and divide powers in the new national government. Not to enumerate rights. Most significantly, Alito's argument is exactly what the Framers feared when they were considering whether to add a list of some rights to the original document. Moreover, that argument disregards the intended safeguard inserted into the resulting Bill of Rights--what would become the 9th Amendment--that the enumeration of rights was certainly not all-inclusive.

Justice Samuel Alito
Erin Schaff-Pool/Getty Images

As I've previously said, Alito is surely aware of all that. He must know how flimsy that "it's-not-in-the-text" argument is. Indeed, he acknowledges--if begrudgingly so--that there are fundamental rights the Supreme Court has recognized that are nowhere to be found in the text of the Constitution.

Alito does not necessarily take issue with unenumerated rights. At least not all of them. But he does repeatedly insist that any non-textual, unspecified constitutional right must be "objectively, deeply rooted in this Nation's history and tradition." He also repeatedly insists that the right to abortion fails that test, and he exhaustively recites a history of abortion crimes to make his point.

As with the "it's-not-in-the-text" argument, Alito must know the weakness of his fallback test. "Objectively, deeply rooted in this Nation's history and tradition"--really? He must know that every landmark civil rights and liberties decision of the Supreme Court broke with history and tradition. That's why they are landmarks.

The cherished decisions of the Court, the ones that are most celebrated by Americans and by the Court itself, those decisions that have given life to our highest constitutional ideals of liberty and justice and equality--they failed Alito's test! They never would have been delivered if the Supreme Court embraced history and tradition as the mandate Alito insists it is.

Any student of constitutional law--and, to be sure, Alito is one--should have no difficulty rattling off landmark decisions of the Supreme Court that failed his "this Nation's history and tradition" test. Does Alito actually reject those landmarks? Do the other Justices who have apparently voted with him reject those landmarks as well?

Let's consider a few of them.

• Brown v. Board of Education, prohibiting government-sponsored racial segregation. That 1954 decision, 167 years after the Constitution was adopted, overruled the Nation's history and tradition of allowing racial segregation in this country. In fact, racial segregation was even accepted for 84 years after the explicit guarantee of equal protection was added in 1868 in the 14th Amendment. The Court in Brown famously overruled the "separate-but-equal" doctrine which it had approved in 1896 in Plessy v. Ferguson. The constitutional right against racial segregation clearly failed Alito's test. Did that make Brown an illegitimate decision?
• Loving v. Virginia, recognizing the right of interracial couples to marry. That 1967 decision--perhaps the most dreaded by those who fought against racial integration--rejected the Nation's history and tradition of anti-miscegenation laws. It took 180 years since the framing of the Constitution, and even 13 years after Brown. The Court had to overrule another decision, Pace v. Alabama, an 1883 ruling in which the Court placed its constitutional imprimatur on that long tradition in the states. Sorry, but Loving 's recognition of a right to marry for mixed-race couples flunked Alito's test. Illegitimate?
• Reed v. Reed, invalidating discrimination against women as arbitrary. That 1971 decision was the first to prohibit unequal treatment on the basis of sex. Yes, it was not until 1971, 184 years since the Constitution was adopted and 103 years since the 14th Amendment's guarantee of equal protection. This Nation's history and tradition was to accept "a wide difference in the respective spheres and destinies of man and woman [because the] natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life." (Bradwell v. Illinois, 1873.) It was nearly a century after Bradwell that the Court, in Reed, finally rejected that constitutionally approved notion of women being "evidently unfit" for the same responsibilities and rights as men. Yep, equal rights for women fails Alito's test. Illegitimate?
• Lawrence v. Texas, invalidating state laws criminalizing same-sex intimacy. That 2003 decision overruled Bowers v. Hardwick, decided 17 years earlier, which had approved the continuing "savage discrimination" [to use Judge Richard Posner's description] against gays and lesbians. That mistreatment was certainly part of this country's history and tradition. Indeed, those who vehemently oppose gay rights and the Lawrence decision argue both that the Constitution does not confer a right of "homosexual sodomy" and, moreover, that such conduct was widely forbidden since the nation's founding. Of course, whether "homosexual sodomy" is a fundamental right is hardly the issue; but, rather, whether there is any legitimate government interest that justifies criminalizing the most personal and private conduct of consenting adults. But be that as it may, the right of same-sex couples to engage in intimate conduct--just as opposite-sex couples are permitted--fails both the "it's-not-in-the-text" and the history and tradition tests. A fortiori, so does the right to marry for same-sex couples which the Court recognized 12 years later in Obergefell v. Hodges. Are both decisions now headed for the chopping block?
• Griswold v. Connecticut, recognizing a private right to use contraceptives. That 1965 decision, continually derided by opponents because a "right of privacy" is not mentioned in the Constitution, also defied the history and tradition of this country's view of contraceptives as being immoral. Indeed, such a view was enshrined in the federal Comstock Act of 1873, together with the prohibition of obscene materials, and was enforceable with criminal punishments up to 10 years imprisonment. Well, neither "privacy" nor "contraceptives" are to be found anywhere in the Constitution's text. Nor was either deeply rooted in the Nation's history and tradition back in 1965 when Griswold was decided. As with gay rights, the private right to use contraceptives fails both of Alito's tests. The chopping block?

There are so many other Supreme Court decisions protecting civil rights and liberties that do not pass one or the other or either of Alito's tests. But let's move to some landmarks that protect the rights of the criminally accused. Let's see how they hold up to the "history and tradition" test. 

As all students of constitutional law know, it is the 14th Amendment, not the Bill of Rights, that makes federal constitutional protections enforceable against the states. Its Due Process Clause, which explicitly protects "liberty," is what the Supreme Court has relied on to enforce fundamental rights. But neither "due process" nor "liberty" are defined in the 14th Amendment, or elsewhere in the document. So ever since 1868 when the 14th Amendment was adopted, the Court has been giving meaning to those terms.

Let's take a brief look at how history and tradition have dealt with "due process."

• The right to a jury trial? For the first 100 years after the 14th Amendment was ratified--and 181 years after the Constitution was adopted--the Supreme Court allowed states to conduct prosecutions without affording the accused a right to a jury. Then in its 1968 decision in Duncan v. Louisiana, the Court overruled a string of precedents (see e.g., Maxwell v. Dow, 1900) that had consistently rejected the notion that a jury trial right was a necessary component of due process. The history and tradition of the Constitution's 14th Amendment and of the meaning of its due process provision certainly didn't win the day in Duncan. The jury right in state trials, illegitimate?
• The right to a unanimous jury? Despite the Duncan decision, the Supreme Court continued to reject the notion that a unanimous verdict was required for a conviction. It took another 52 years for the Court to rule that unanimity was a due process requirement. In its 2020 ruling in Ramos v. Louisiana, the Court overruled a couple of post-Duncan decisions--Apodaca v. Oregon and Johnson v. Louisiana, both 1972--and for the first time ruled that states must not only afford the right to a jury trial, but that state juries must be unanimous to convict. So the Supreme Court's recognition of that due process right in the 14th Amendment took 152 years and 233 years after the adoption of the Constitution. Deeply rooted in the Nation's history and tradition?
• The right to counsel? In Gideon v. Wainwright, the Court held that an accused, rich or poor, was entitled to the assistance of counsel in criminal prosecutions in state courts. Accordingly, that 1963 decision required states to provide an attorney for defendants who could not afford one on their own. The Court overruled its 1942 Betts v. Brady decision, which had adhered to the longstanding view that a defendant's rights in state courts under the 14th Amendment were not equal to those rights guaranteed in federal courts by the Bill of Rights. Specifically, state defendants were not constitutionally entitled to the same right to counsel that the 6th Amendment required in federal prosecutions. So, Gideon contravened the history and tradition of due process rights in state courts--that's 95 years of jurisprudence since the adoption of the 14th Amendment and 176 years of jurisprudence under the Constitution itself. Yep, Gideon's right to counsel flunked Alito's history and tradition test.

We could go on and on with constitutional rights of the accused that were finally guaranteed against violation by the states--all in landmarks that flunked Alito's test. For example:

• Search and seizure rights were not protected against state violation until 1961 in Mapp v. Ohio
• The right against cruel and unusual punishment, not until 1962 in Robinson v. California
• The right against compulsory self-incrimination, not until 1964 in Malloy v. Hogan
• The right against double jeopardy, not until 1969 in Benton v. Maryland
• The right against a racially selected jury, not until 1986 in Batson v. Kentucky
• And more recently, the right against excessive fines, not until 2019 in Timbs v. Indiana.

Regarding that last mentioned right, as late as 2008 in District of Columbia v. Heller, the Court listed that right against excessive fines among those that had never been held to be enforcible against the states. Indeed, regarding all of those rights of the accused, the aforementioned landmark cases enforced them against the states for the first time. There had been no previous history or tradition of those rights being included within the requirements of the 14th Amendment's due process guarantee.

One final note about the history and tradition test. Alito's repeated reference to it derives from the judicial opinions of one of America's greatest judges, Benjamin Nathan Cardozo. Yes, Cardozo applied that concept in determining what was a fundamental right constitutional right. But he warned against transforming "vague precepts" of due process into "immutable principles."

Throughout his career on the bench, Cardozo made clear that history and tradition were not prescriptions for primitive or static views about the law. To the contrary, in opinions for which he is renowned, he advanced the American law of consumer rights and business ethics as well as so many other areas while on the New York Court of Appeals. He did the same with the protections of workers and retirees and the scope of constitutionally protected liberty while a Supreme Court Justice.

Perhaps most notably for the focus of this commentary, is Cardozo's famous articulation of a foundational liberty within weeks of his appointment to New York's highest court. As he put it in his unanimous opinion in 1914 in Schloendorff v. Society of New York Hosp.:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body.

He was rephrasing what was already accepted as a basic doctrine of civil liberties in other state courts:

Under a free government, at least, the free citizen’s first and greatest right, which underlies all others — the right to the inviolability of his person; in other words the right' to himself — is the subject of universal acquiescence. (See e.g., Mohr v. Williams [Minnesota Supreme Court,1905.])

Despite the history and tradition underlying that "first and greatest right" of bodily autonomy, Alito's opinion gives it the shortest shrift, the narrowest scope. Of course, no right is absolute. But the disregard of that right in Alito's opinion, when it comes to a woman's decision whether to continue a pregnancy, is not explainable except that he picks and chooses where and how his history and tradition test shall apply. 

Clearly, Alito's "objectively, deeply rooted in this Nation's history and tradition" test, if it were truly to be applied "objectively"--and not based on ideology or partisanship or personal morality--would provide much more weight to a woman's right to choose than Alito is willing to acknowledge. And as we've already seen, his supposedly mandatory test would have precluded so many of the Supreme Court's landmarks that are now basic to American civil rights and liberties. He's not a stupid man. He knows that.

In the next post, Alito's insistence that his opinion does not affect other rights.

The Leaked Opinion--Constitutional Nonsense Revisited* (Part 1)

 *In a series of posts several years ago, I examined some nonsensical arguments that are regularly spouted, often by those who do or should know better. [Supremely Awful Arguments: Constitutional Nonsense (Part 1); (Part 2); (Part 3); (Part 4).] The leaked opinion is full of them.

Let me begin with what is usually left unsaid or ignored regarding the constitutional issue of abortion. There are two profound competing interests involved. There's the woman's interest in making her own choice about her own pregnancy, and there's the governmental and societal interest in protecting a human life that is yet to be born.

Justice Samuel Alito
Chip Somodevilla/Getty Images

It is a difficult issue that requires thoughtful, delicate balancing. Unfortunately, there is precious little such balancing in the public debate. And Justice Alito's leaked opinion evinces more stridency and vengeance than thoughtfulness or delicacy.

Consequently, and not surprisingly, the constitutional argumentation in his opinion is woefully flawed. The point here is emphatically not about whether Roe v. Wade should be overruled or upheld. That's a  separate matter. The point here is that Alito's arguments to overrule Roe and reject a woman's right to choose are nonsense. Yes, that's a strong indictment. But it's one that's deserved.

There are three main arguments in Alito's leaked opinion. Let's start with the first one that sounds so appealing, but is utter...well, a vulgarity would be most fitting, but let's just say gibberish: the text of the Constitution does not say anything about a right to abortion. 

Alito surely knows better than to make that argument. He's well aware that the Constitution is not a catalog of rights. He knows full well that the Constitution primarily organizes and divides the powers of government. He must know that we nearly did not have a Bill of Rights because the Framers were afraid that such an argument would be made. They were afraid that listing any rights in the document would lead some to argue that those not listed did not exist.

The Framers debated whether it would therefore be more dangerous to add a Bill of Rights which listed some guarantees than to simply leave out any listing at all. Ultimately they chose to include an enumeration of some of those rights that England had been violating, and then to add a provision--the 9th Amendment--that would make clear that the listing was hardly intended to be exhaustive. That a free people had lots of others that weren't mentioned.

In presenting his proposed several amendments to the first Congress, James Madison acknowledged the strength of the argument against listing some rights and the danger of doing so. He offered a provision that he hoped would solve the problem and avoid the "it's-not-mentioned-in-the-text-of-the-Constitution" argument. Well, Madison got his suggested provision--which would become the 9th Amendment. But that dangerous argument that he and the other Framers feared is still being raised. Even by the Justices, as in Alito's leaked opinion.

Perhaps Alito, other Justices, politicians, and commentators need to be reminded. Here's what Madison said as he presented a "bill of rights" to the Constitution on June 8, 1789:

lt has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enu­meration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequent­ly insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [which became the 9th Amendment].

And yet, we still hear the nonsense. "It's-not-in-the-text." Yes, a right may not be mentioned in the text of the document, but that is emphatically not a reason to disparage a right, let alone to deny its existence. There may well be reasons to disparage or deny a right. But that most certainly is not one of them!

Just consider a few examples:

• The right of a couple--even a traditional heterosexual one--to marry? Nope, nowhere mentioned in the text.
• The right of a married couple to be intimate? Nope, not there.
• The right of that couple to kiss prior to marriage? Not that either.
• The right of a married couple to have children? Nowhere to be found in the document.
• The right of a married couple to raise their children, or even to hug them? Not mentioned.
• The right to look for work to support oneself and one's family? Nope.
• The right to have a friend? Not even that one is in the text.
• The right to join a group of friends or others with similar interests? Nope.
• The right to wave to a neighbor and say 'hello?" Not mentioned
• The right to go for a stroll? Sorry, not in the text.
• The right to donate to a favorite charity? Nah, not there.
• The right to offer your services to that charity? Not that either.
• The right to march in support of a cause? No.
• Etc., etc., etc.

And let's not leave out some rights favored by those Justices, politicians, and commentators who most frequently make the nonsensical "it's-not-in-the-text-of-the-Constitution" argument:

• The right to contribute money to a political candidate? Not mentioned.
• The right of a corporation to finance a video about a candidate? Nope. [The closest the Constitution says is "speech." That's the only relevant word James Madison used, and he surely knew its definition.]
• The right to go hunting? Nope.
• The right of self-defense in one's home? Not even that.
• The right to even choose who gets to enter one's home? Not in the text.
• The right to avoid and hate liberals for ruining this country? Nope.
• Again, etc., etc., etc.

The fact is that most of our rights, most of those liberties and privileges that are essential to a free society are not mentioned in the text of the Constitution. The document was never intended to be some all-inclusive catalog of rights. Indeed, not a catalog of rights at all.

And yet, that "it's-not-in-the-text" argument is front and center in Alito's leaked opinion. He must know it's nonsense. He must know it has little to do with whether a woman has or should have a right to choose. Maybe he is just so blinded with anger about abortion rights that he refuses to see or just doesn't care.

Next on New York Court Watcher, Alito's "it's-not-part-part-of-American-tradition" argument.

Ketanji Brown Jackson

Instead of rewriting what I've already said quite a few times in interviews on TV, radio, and podcast about President Biden's Supreme Court nominee, I thought I'd simply provide links to a few of those interviews.

In the meantime, of course, our hearts, thoughts, and support

are with the people of Ukraine.

Judge Ketanji Brown Jackson

U.S. Court of Appeals for the D.C. Circuit

Supreme Court Nominee

Photo by H2rty via Wikimedia Commons

Ketanji Brown Jackson primed to make Supreme Court history

Spectrum News 1, CAPITAL TONIGHT

Feb. 25, 2022

https://spectrumlocalnews.com/nys/capital-region/politics/2022/02/25/ketanji-brown-jackson-primed-to-make-supreme-court-history

Albany Law Prof. Vin Bonventre discusses nomination of Judge Ketanji Brown Jackson to Supreme Court

WAMC Northeast Public Radio, MIDDAY MAGAZINE

Feb. 27, 2022

https://www.wamc.org/news/2022-02-27/albany-law-prof-vin-bonventre-discusses-nomination-of-judge-ketanji-brown-jackson-to-supreme-court

Who is Ketanji Brown Jackson? Prof. Vin Bonventre Shares His Insights

Albany Law School, PODCAST

March 1, 2022

https://soundcloud.com/user-952955809-873766748/who-is-ketanji-brown-jackson-prof-vin-bonventre-shares-his-insights?utm_source=clipboard&utm_medium=text&utm_campaign=social_sharing

What's with Gorsuch?

As widely reported, Justice Neil Gorsuch has decided to go maskless on the bench. Everyone else on the Court has been wearing a mask. Well, we can't say that about Sonia Sotomayor. She has avoided the bench and participated in oral arguments remotely. Notably, she is a diabetic. Good enough reason to keep her distance from the unmasked colleague.

Relatedly, it has become pretty well known among Supreme Court watchers that Gorsuch's colleagues find him annoying, self-righteous, arrogant, and not nearly as bright as he apparently thinks. One might say insufferable. Yes, I'll say it.

Actually, none of this is new. Shortly into his tenure, Court watchers described Gorsuch as an impudent upstart who was preaching to his veteran colleagues. He quickly took to telling them that he, not they, understood the role of a Supreme Court Justice. As one observer reported about an early Gorsuch opinion, "He instructed his senior colleagues, who collectively have a total of a hundred and forty years’ experience on the Court, about how to do their jobs." [See, How Badly Is Neil Gorsuch Annoying the Other Supreme Court Justices? by Jeffrey Toobin, The New Yorker, September 29, 2017.]

Another observed that "He’s the new kid in class with his hand always up. He is in his colleagues’ faces pointing out the error of their ways, his snarky tone oozing disrespect toward those who might, just might, know what they are talking about." [See, Trump’s Life-Tenured Judicial Avatar, by Linda Greenhouse, New York Times, July 6, 2017.]

Several years into his tenure on the Court, Gorsuch remains just as smug. Dissenting last year against the Chief Justice in "an unmistakably parental tone," Gorsuch "scolded the majority." John Roberts' opinion for the Court, Gorsuch sneered, "says so little about the Constitution’s terms because so little can be said that might support its ruling.” [See, Neil Gorsuch Couldn’t Stop Complaining About the Rest of the Justices Today, by Elura Nanos, Law & Crime, Mar 25th, 2021.] 

As one long-time Court watcher, well-known for her inside sources, put it recently, "Gorsuch, from the beginning of his tenure, has proved a prickly justice, not exactly beloved even by his conservative soulmates on the court." [See, Gorsuch didn't mask despite Sotomayor's COVID worries, leading her to telework, by Nina Totenberg, NPR, January 18, 2022.]

Gorsuch seems so cocksure of his own perspectives. Less pompous and more perceptive Justices understand how difficult and close the legal questions typically are that confront the Court. There are, almost always, strong legal arguments supporting each side of the controversies that come before the  Court. But Gorsuch, even when he agrees with a result reached by his colleagues, often feels compelled to write separately to instruct them, as well as any Justices on the opposing side, of his own superior and certain description of the case and analysis of the issues. These separate writings are oftentimes snide, and not nearly as persuasive as the leading majority or dissenting opinions.

Take the case where the Court struck New York's pandemic restrictions on church attendance. [Roman Catholic Diocese v. Cuomo (2021).] The unsigned per curiam opinion for the majority was measured and, even if one disagreed, thoughtful and certainly arguable. And yet, Gorsuch couldn't help himself. Despite his agreement with the majority decision to invalidate the state's restrictions, he had to write his own opinion, taking potshots at Chief Justice Roberts who dissented in the case. He accused the Chief Justice of "a serious rewriting of history" about Roberts's reliance on the 1905 Jacobson landmark in a recent opinion, supporting similar pandemic restrictions in California. [In that 100 plus-year-old landmark, Jacobson v. Massachusetts, the Court had upheld a mandate for smallpox vaccinations against constitutional "liberty" challenges.]

The Chief Justice, perceptibly irritated with his junior colleague, responded to "One solo concurrence." Roberts's previous reliance on Jacobson, he reminded Gorsuch, was for an axiomatic proposition that “[o]ur Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the states." "It is not clear," the Chief Justice added, "which part of this lone quotation [the unnamed Gorsuch] finds so discomfiting."

Gorsuch also seemed impressed with his own proof of religious discrimination in the New York restrictions. Some non-church activities were treated more favorably than religious ones, according to Gorsuch, for mere "secular convenience." He variously emphasized, for example, that, under the state's restrictions, "it may be unsafe to go to church, but it is always fine to pick up another bottle of wine." Apples and oranges anyone?

In Roberts's previous opinion that Gorsuch disparaged, the Chief Justice had explained that there are activities, like church attendance, "where large groups of people gather in close proximity for extended periods of time." And there are "dissimilar activities," which are understandably treated more leniently, "in which people neither congregate in large groups nor remain in close proximity for extended periods." The latter would, of course, include Gorsuch's picking up a bottle of wine. But, either disregarding or missing the Chief Justice's obvious distinction, Gorsuch concluded his solo opinion--i.e., no one joined him--by rephrasing his complaint about "edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques." Cute, but hardly analytical.

[The majority opinion, by contrast, did discuss secular activities that are more similar to church attendance.]

The point is not that the decision reached by the majority and Gorsuch was legally wrong--remember, these cases are close. Rather, it is Gorsuch's arrogant certainty in his own less-than-compelling arguments.

The point is likewise not about Gorsuch's taking politically conservative positions. Even when he takes positions that political liberals would favor, he can't seem to avoid the self-assured certainty in rather lame--and unnecessary--legal analysis.

Take his opinion for the Court in Bostock v. Clayton County (2020). Writing for the 6 to 3 majority--the 4 liberals at the time plus Roberts and Gorsuch--he concluded that the 1964 Civil Rights Act's prohibition against sex discrimination in employment necessarily prohibits discrimination against LGBTQ persons. It would have been enough for Gorsuch to simply rely on indisputable logic. That is, if a male employee romantically involved with a woman gets to keep his job, but a female employee so involved with a woman gets fired, the only difference is the employee's sex. Clear enough? Well, Gorsuch, a self-avowed disciple of the late Antonin Scalia, felt compelled to insist that the result was also dictated by originalism--i.e., the law's meaning when originally enacted.

Gorsuch spent most of his opinion arguing that "the ordinary public meaning of the statute’s language at the time of the law’s adoption" prohibited sexual orientation discrimination. The ordinary public meaning when the law was adopted in 1964 included sexual orientation? That's what Congress and the American people were thinking when discrimination on the basis of sex was prohibited almost 60 years ago?

In his dissenting opinion, Justice Samuel Alito threw Scalia's originalism right back at Gorsuch. Quoting Gorsuch's idol, Alito argued that a law's words should be given the meaning that "they conveyed to reasonable people at the time they were written." And as Alito explained, "the concept of discrimination because of 'sex'" hardly conveyed "discrimination because of 'sexual orientation' or 'gender identity'” at the time the Civil Rights Act was enacted in 1964. Gorsuch's effort to argue otherwise was "preposterous." Moreover, Gorsuch's updating the statute to reflect current values, as Alito noted, "actually represents a theory of statutory interpretation that Justice Scalia excoriated."

[An unsurprising disclosure: I do not subscribe to Scalia's interpretive methodology of originalism--whether argued by Gorsuch or Alito or Scalia himself. But I certainly do favor the result in the Bostick case, as well as the analysis on the basis of simple logic that does accord with current values and basic decency.]

Well, just maybe, Gorsuch was valiantly, if unpersuasively, enlisting originalist interpretation in the service of equal rights for LGBTQ persons because he so fervently supports them. Unfortunately. a consideration of his opinions in other cases quickly and firmly dispels any such wishful thinking.

Take his opinion in Pavan v. Smith (2017). At issue was the disparate treatment in Arkansas of same-sex married couples involving their children's birth certificates. The name of a mother's male spouse would be listed as a parent, regardless of any biological relationship to the child. But the same treatment was not extended to same-sex couples. The majority's unsigned per curiam opinion summarily invalidated the discriminatory treatment. The Court simply reaffirmed its right-to-marry decision in Obergefell v. Hodges (2015) which held that same-sex couples were entitled to marriage, and were so “on the same terms and conditions as opposite-sex couples.”

Gorsuch dissented. His complaint? While "Obergefell addressed the question whether a State must recognize same-sex marriages," he wrote, "nothing in Obergefell spoke (let alone clearly)" about birth certificates. To be fair, he specified a "birth registration regime based on biology," such as the one in Arkansas. But "this particular regime’s exceptions," as Gorsuch benignly referred to them, didn't make any difference to him. Not even the particular exception for non-biological parents at issue in this case, which just happened to be available to opposite-sex couples, but not to similarly situated same-sex couples. So was that lost on Gorsuch? Or did this unequal treatment simply not matter to him?

[Notably, even Chief Justice Roberts, who had dissented two years earlier in Obergefell, joined the majority opinion.]

Then there is Gorsuch's separate opinion in the cakeshop case. In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Court--with a combination of conservative and liberal justices in the majority--ruled that Colorado had conducted an unfairly hostile hearing when it found the religiously objecting baker to be guilty of illegal discrimination for refusing to make a cake to celebrate a same-sex couple's wedding. In short, the majority of justices simply rejected the state's unfair hearing. They explicitly made clear that they were not approving the baker's--or any other business's--discrimination against same-sex couples. 

Gorsuch wasn't happy. He wasn't pleased with any suggestion that the baker had engaged in discrimination at all. He had to write his own concurring opinion. That baker, Gorsuch argued, "would have refused to create a cake celebrating a same-sex marriage for any customer, regardless of his or her sexual orientation." What? So there's no discrimination here because the baker wouldn't make a cake celebrating a same-sex wedding for an opposite-sex couple's wedding either?

Maybe Gorsuch didn't really mean that. But he repeated his argument. "Any suggestion that [the baker] was willing to make a cake celebrating a same-sex marriage for a heterosexual customer," Gorsuch noted, "would simply mistake the undisputed factual record." So he really was saying that. The baker wouldn't make a same-sex cake for gay or straight customers.

The point Gorsuch was clumsily trying to make was that the baker simply didn't want to express a certain message--i.e., a message approving same-sex marriage. (BTW, Gorsuch's senior colleague, Justice Thomas, made that argument much more clearly, in his own concurring opinion, in which he framed the issue in the case as one involving expressive freedom. Not sure why Gorsuch felt compelled to write another opinion trying to explain the same thing.) 

But whether the issue in the case was to be framed as involving discrimination or expressive freedom, Gorsuch himself could not deny that the baker's refusal necessarily resulted in the unequal treatment of same-sex customers. "To be sure," he admitted, the baker's "conduct promised the effect of leaving a customer in a protected class unserved." Well yes, isn't that the point? 

Not to Gorsuch. He just couldn't get passed the apparently brilliant decisiveness of his own argument. He repeated it again: "the baker [in this case] would have refused to sell a cake celebrating same-sex marriage to a heterosexual customer."

Does that sound like a justice opposed to sexual orientation discrimination? A justice sympathetic to LGBTQ rights? In this Colorado cakeshop case or in the Arkansas birth certificate cake?

So....

Insisting on going maskless on the bench. Instructing senior colleagues how to do their jobs. The "snarky tone oozing disrespect." The "unmistakably parental tone." The "prickly" behavior. Accusing the Chief Justice of being less than honest. Equating the conditions of church attendance with picking up a bottle of wine. Insisting that sex discrimination was publicly understood to include sexual-orientation discrimination in 1964. Arguing that equal rights for same-sex married couples did not extend to equal treatment with birth certificates. Arguing that refusing to serve a same-sex couple in celebrating their wedding was not discriminatory.

Okay, what's with Gorsuch?

Perhaps it's not much more than what a renowned, and somewhat conservative, Supreme Court scholar said to me not long after Gorsuch was appointed to fill the Scalia vacancy on the Court. "I didn't always agree with Scalia, but he was always nice to me and he was brilliant." Then he added, "But Gorsuch is a dummy."

REPRISE: Religious Institutions Must Pay Abortion Coverage in NY

In a series of posts last year, I discussed the challenge to New York's abortion insurance mandate brought by religious objectors. Led by the Roman Catholic Diocese of Albany, the challengers sought an exemption on sincere religious grounds.

(See Religious Institutions Must Pay Abortion Coverage in NY (Part 1): More Aftermath of Scalia's Dreadful Oregon v. Smith Opinion [July 6, 2020];

Religious Institutions Must Pay Abortion Coverage in NY (Part 2): More Aftermath of Scalia's Dreadful Oregon v. Smith Opinion [July 22, 2020]; and

A Tale of Two Religious Liberty Decisions: SCOTUS Versus NY's Court of Appeals [Nov. 26, 2020].)

As I wrote in that latter post:

In a case involving the state's regulation requiring employers to provide abortion insurance coverage, New York's highest court wouldn't even hear an appeal. In Roman Catholic Diocese of Albany v. Vullo, religious objectors--to whom abortion is, for some, the equivalent of killing a human being and, for others, akin to it--were seeking an exemption on tha basis of religious liberty. But apparently, the Judges of New York's highest court didn't even think that the fundamental right of free exercise of religion is serious enough to deserve a hearing. 

         Here is the entirety of the Court of Appeals' ruling:

On the Court's own motion, appeal dismissed, 

without costs, upon the ground that no substantial

constitutional question is directly involved.

Motion for leave to appeal denied with one hundred

dollars costs and necessary reproduction 

disbursements.

Chief Judge DiFiore and Judges Rivera, Stein, 

Garcia, Wilson and Feinman concur.

Judge Fahey dissents and votes to retain the appeal.

(Mo. No. 2020-549, Nov. 24, 2020) [My emphasis added.

"No substantial constitutional question." And "On the Court's own motion." It is difficult to see anything but contempt on the part of the court for sincere, central religious beliefs and for genuine claims that constitutional religious liberty is being violated. Regardless of how the court would or should ultimately have ruled after an appeal, the refusal to even hear the appeal seems inexcusable.

So, in the New York State courts:

the trial judge denied the religious objection;

the Appellate Division (the state's intermediate court) affirmed that denial;

and the Court of Appeals (the state's highest court) deemed the case unworthy to hear.

Understanding full well that a serious question of religious free exercise was in fact at issue--despite the Court of Appeals dismissive contempt--the Albany Catholic Diocese petitioned the U.S. Supreme Court for certiorari (i.e., to review the case). Moreover, numerous scholars and various religious and religious liberty organizations submitted briefs to the Court in support of the Albany Diocese's constitutional argument which New York's highest court didn't consider worthy of an appeal.

Well...

The Supreme Court today granted the Albany Diocese's petition for certiorari, summarily vacated the decision of the New York courts, and sent the case back to New York's Appellate Division for reconsideration. Here's the order:

MONDAY, NOVEMBER 1, 2021

CERTIORARI -- SUMMARY DISPOSITIONS

20-1501 ROMAN CATHOLIC DIOCESE, ET AL. V. EMAMI, SHIRIN, ET AL.

The petition for a writ of certiorari is granted. The

judgment is vacated, and the case is remanded to the Appellate

Division, Supreme Court of New York, Third Judicial Department

for further consideration in light of Fulton v. Philadelphia,

593 U. S. ___ (2021). Justice Thomas, Justice Alito, and

Justice Gorsuch would grant the petition for a writ of

certiorari.

So...

The Supreme Court unanimously--that includes all three liberal justices: Breyer, Sotomayor, and Kagan--vacated the rulings of the New York courts which had denied the religious exemption to the state's abortion insurance mandate. A six-justice majority voted to summarily remand the case back to the New York courts for reconsideration. And three justices, Thomas, Alito, and Gorsuch--who have previously made clear that (Employment Division...of) Oregon v. Smith has to go--wanted the Supreme Court to proceed with a full appeal, presumably to overrule that precedent.

[N.B., Oregon v. Smith is the Supreme Court decision which, in Justice Scalia's dreadful and dishonest majority opinion--no, I'm not pulling any punches, any more than did Justice O'Connor--ruled against the religious liberty claim of The Native American Church on the truly incredible ground that any "otherwise valid law" defeats constitutional free exercise of religion. Yep, legislation defeats a fundamental constitutional right!

I've written and spoken at length about the Smith decision and its impact on religious liberty. See e.g., Justice Scalia's Record (Part 1), 2/18/16; Religious Liberty--commentary, interview, video, presentation [updated 5/15/13]; Religious Liberty: Fundamental Right or Nuisance, 14 U. St. Thomas L.J. 650 (2018); The Fall of Free Exercise, 70 Alb. L. Rev. 1399 (2007). Ironically, but not surprisingly, conservatives today are much more supportive of free exercise of religion than previously, and liberals much less so, because recent cases have involved majority and fundamental religions objecting to abortion rights, LGBTQ rights, and other rights favored by political liberals.]

Now...

The question is, what will the New York courts do with the case in light of the Supreme Court's summary vacatur? It's doubtful that the Appellate Division this time around will be so dismissive of the Albany Diocese's religious liberty claim for an exemption. It's also doubtful that the Court of Appeals this time around--however the Appellate Division rules--will treat this fundamental constitutional claim so contemptuously.

I guess we shall see.

[Disclosure: I have been assisting counsel for the Albany Diocese in this case, just as I did in Catholic Charities v. Serio (2006), involving New York's contraceptive insurance mandate.

Regardless of my strong support for the right to use contraceptives and for the right to choose, I believe that the free exercise of religion, like other fundamental constitutional rights, must not be lightly disregarded and, rather, should be limited only when actually necessary to protect important health, safety, national security, and other critical concerns. And that's hardly a unique or radical position. In fact, it is the most basic principle of constitutional law.]