Baseball Crank
Covering the Front and Back Pages of the Newspaper
March 6, 2007
LAW: Sidelining The Courts in the Culture Wars

It may not be enough anecdotes to constitute a trend, but a look at appellate court decisions over the past week gives reason to hope that the courts may finally be beginning to weary of interfering in the culture wars - but also offers some cautions about the consequences of each step towards an activist judicial role in those battles. A single step into the fray can take a log time and a lot of litigation to cabin.

We begin with two decisions from the DC Circuit. In the first, DKT Int'l Inc. v. U.S. Agency for Int'l Development (D.C. Cir. Feb. 27, 2007), a recipient of federal funds under a federal program designed to fight HIV/AIDS in the developing world filed suit, arguing that its First Amendment rights were violated by a condition that groups accepting funding certify that it has a policy opposing prostitution and sex trafficking. Yes, you read that right:

DKT alleged that it refuses to adopt a policy opposing prostitution because this might result in "stigmatizing and alienating many of the people most vulnerable to HIV/AIDS - the sex workers . . . "

The DC Circuit sensibly noted that compelling recipients of federal funds to agree with the message they were being paid to promote was well within the government's rights (as my Con Law professor used to say, "It's the government's nickel"):

In this case the government's objective is to eradicate HIV/AIDS. One of the means of accomplishing this objective is for the United States to speak out against legalizing prostitution in other countries. The Act's strategy in combating HIV/AIDS is not merely to ship condoms and medicine to regions where the disease is rampant. Repeatedly the Act speaks of fostering behavioral change, see, e.g., 22 U.S.C. § 7601(22)(E), and spreading "educational messages," id. § 7611(a)(4). The Act's stated source of inspiration is the success in Uganda, where President Yoweri Museveni "spoke out early, breaking long-standing cultural taboos, and changed widespread perceptions about the disease." Id. § 7601(20)(B). The Act details the program Museveni instituted, which primarily involved a "message" about "a fundamental change in sexual behavior." Id. § 7601(20)(C). "Uganda's success shows that behavior change . . . is a very successful way to prevent the spread of HIV." Id. § 7601(20)(D). Spending money to convince people at risk of HIV/AIDS to change their behavior is necessarily a message.


The government's brief summarizes these points: "It would make little sense for the government to provide billions of dollars to encourage the reduction of HIV/AIDS behavioral risks, including prostitution and sex trafficking, and yet to engage as partners in this effort organizations that are neutral toward or even actively promote the same practices sought to be eradicated. The effectiveness of the government's viewpoint-based program would be substantially undermined, and the government's message confused, if the organizations hired to implement that program by providing HIV/AIDS programs and services to the public could advance an opposite viewpoint in their privately-funded operations."

A victory for democracy (this is an act of Congress supported by the Bush Administration), and for common sense as well, although the court noted (in footnote 4 on p. 9) that the government's policy could just as easily have been evaded by DKT if it simply separately incorporated its pro-prostitution organization and the organization receiving federal funds.

The second decision involved an effort to change behavior closer to home: the court in Decatur Liquors, Inc. v. DC (DC Cir. Feb. 27, 2007) rejected a challenge to a zoning rule in one ward of DC (sponsored by the now-Mayor of DC) barring the sales of single containers of beer, on the theory that single-container sales "were especially likely to lead to public drunkenness and other antisocial behavior." The court found that there were no substantial federal Constitutional bars to this rule, in particular rejecting an equal protection challenge to the fact that the rule encompassed only a single ward:

Council Member Fenty identified reasons why public drunkenness and other concerns were particularly acute in Ward 4, and, again, there can be no doubt that a link exists between the sale of alcohol and public drunkenness. Thus, plaintiffs' equal protection claim is insubstantial.

Now, one can agree or disagree with the policy, as with USAID's policy on prostitution, but in both cases the court gave room for democratically elected officials and their appointees to make a policy determination and implement it, so they could be judged on the results of that policy rather than being tied up in court trying to justify the rationale in abstract terms.

Next up, a decision from an intermediate appellate court in California, California Family Bioethics Council v. California Institute for Regenerative Medicine (Cal. App. 3 Dist Feb. 26, 2007), in which the court rejected a battery of challenges to Proposition 71, the initiative establishing taxpayer funding for stem cell research. The challenges included technical attacks (such as violation of the "single-subject rule" for ballot initiatives, a favorite of courts that disapprove of ballot initiatives, and various California Constitutional challenges) and charges that the initiative was misleading or misunderstood by the voters. The court rejected these arguments. First, the court noted that the proponents of the initiative had had to concede that stem cell research will provide uncertain benefits:

As the Attorney General observes, the ballot materials repeatedly stressed the speculative nature of any savings from research or earnings to the state from licensing royalties under the Cures Act.

More fundamentally, though, the court refused to second-guess the voters:

To say that the issues surrounding Proposition 71 and the issues surrounding stem cell research generally were well-aired prior to the election undoubtedly would be an understatement. Though many voters probably do not understand the science underlying somatic cell nuclear transfer, therapeutic cloning, and in vitro fertilization, they are not required to grasp the intricacies of this research frontier to intelligently decide whether to support a measure providing funding for such research. The ballot materials included a box entitled "Stem Cells and Stem Cell Research" that provided objective nontechnical answers to three questions: "What Are Stem Cells?," "What are Embryonic and Adult Stem Cells?," and "Why do Researchers Want to Study Stem Cells?" No more was required to permit voters to vote intelligently.

Unlike the DC Circuit decisions, the California decision won't make social conservatives happy - but it springs from the same basic principles of restraint. The voters were asked, the voters decided.

Then there's the Second Circuit, which was asked by a teachers' union in Port Washington Teachers Assn. v. Board of Ed. of the Port Washington Union Free School Dist. (2d Cir. Feb. 27, 2007) to strike down a policy promulgated by the school superintendant requiring teachers and staff to notify students' parents if they learn that the student is pregnant. The Second Circuit rejected the challenge, finding that the teachers and staff lacked standing, because they could not show that the policy placed them in direct conflict with confidentiality obligations (the policy "advises staff members to inform students that conversations about student pregnancies will not be held in confidence," is not mandatory, and the threat of suit by students is speculative).

The court's decision isn't a clear-cut victory for restraint: the Second Circuit avoided a premature decision on the constitutionality of the policy, but it also neutered the policy by concluding that it was outside the superintendant's powers under New York's Education Law.

Another ambiguous case comes from the Supreme Court, which in the case of Harper v. Poway School District, No. 06-595 (U.S. Mar. 5, 2007), reversed a Ninth Circuit decision from last April that had denied First Amendment protection to a high school student who claimed a constitutional right to wear T-shirts to school that read, "BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED" handwritten on the front, and "HOMOSEXUALITY IS SHAMEFUL" handwritten on the back. A divided Ninth Circuit panel, in an opinion by Judge Reinhardt (with Judge Kozinski dissenting), had exercised restraint, of a sort, by lifting a preliminary injunction against the school district. In a saner world, the court might have been able to say that schools have an inherent right to tell students whatever they want about appropriate attire, and that students have no business using their torsos as sandwich boards. But the court expressly declined to address the school dress code as a whole, or to establish a bright-line rule that discouraged litigation of this sort. Instead, the Ninth Circuit ruled on the particular content of the shirt, stating that its content could be banned out of concern over "psychological attacks that cause young people to question their self-worth and their rightful place in society," and declared a rule that protects some students more than others from provocative or insulting speech:

Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn. The demeaning of young gay and lesbian students in a school environment is detrimental not only to their psychological health and well-being, but also to their educational development.

As Eugene Volokh pointed out at the time, this is classic viewpoint discrimination (the court also cited Confederate flags as a type of speech the schools may properly ban, while glossing over the fact that the shirt was worn to protest a school-sponsored Gay-Straight Alliance "Day of Silence"), holding that some students are entitled to greater protection from competing viewpoints than others. It's also a distinctively activist posture - Judge Reinhardt left the door open for students with more favored opinions to file t-shirt suits.

As it turns out, the Supreme Court (with only Justice Breyer dissenting) ended up vacating the Ninth Circuit's opinion, but on the narrow ground of mootness, without ruling on the merits - robbing the Ninth Circuit opinion of its precedential value, but going no further.

Finally, we turn to the progeny of Lawrence v. Texas, the 2003 decision in which the Supreme Court announced a constitutional right to sodomy between consenting adults, premised upon a right of sexual privacy:

The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

Unsurprisingly, the Lawrence decision has spawned to a battery of attempts to expand its rationale to other laws governing sexual conduct of one sort or another. First, the Supreme Court this past week declined to review the decision of the Supreme Court of Utah in State v. Holm (Utah May 16, 2006), which among other things rejected (over a dissent) a claim that Lawrence invalidated Utah's prohibition on bigamy. The court first stressed the Lawrence Court's drawing of lines intended to limit the decision's application:

Despite its use of seemingly sweeping language, the holding in Lawrence is actually quite narrow. Specifically, the Court takes pains to limit the opinion's reach to decriminalizing private and intimate acts engaged in by consenting adult gays and lesbians. In fact, the Court went out of its way to exclude from protection conduct that causes "injury to a person or abuse of an institution the law protects."

The Utah court found that the threat presented by bigamy to the institution of marriage justified a departure from Lawrence:

In marked contrast to the situation presented to the Court in Lawrence, this case implicates the public institution of marriage, an institution the law protects, and also involves a minor. In other words, this case presents the exact conduct identified by the Supreme Court in Lawrence as outside the scope of its holding.

First, the behavior at issue in this case is not confined to personal decisions made about sexual activity, but rather raises important questions about the State's ability to regulate marital relationships and prevent the formation and propagation of marital forms that the citizens of the State deem harmful.


[A] marriage license significantly alters the bond between two people because the State becomes a third party to the marital contract. . .
[M]arital relationships serve as the building blocks of our society. The State must be able to assert some level of control over those relationships to ensure the smooth operation of laws and further the proliferation of social unions our society deems beneficial while discouraging those deemed harmful. The people of this State have declared monogamy a beneficial marital form and have also declared polygamous relationships harmful.

The Connecticut Supreme Court, in State v. McKenzie-Adams, (Ct. Feb. 27, 2007), rejected a similar effort to extend Lawrence to the case of a male teacher who had consensual sexual relations with two 16-year-old female students and claimed a "right to engage in noncommercial consensual sexual intercourse with individuals over the age of consent." The court found that the teacher-student relationship is "an inherently coercive relationship, . . . wherein consent might not easily be refused." The Connecticut court, like the Utah court, found it necessary to place a limiting construction on Lawrence, albeit one that is in some tension with the Utah court's reading of the case:

We conclude that the defendant's reliance on Lawrence is misplaced because, contrary to the defendant's claim, the court in Lawrence did not ignore the relationship between the participants to the prohibited sexual act. The court merely cautioned that, when reviewing a statute criminalizing private noncommercial consensual sexual conduct, it is improper to focus on the right to engage in specific sexual acts, as the court had done in Bowers. Instead, the court should focus on the right to foster certain intimate relationships. Accordingly, pursuant to Lawrence, the critical inquiry is whether the prohibited intimate relationship is within the liberty interest of the participants to choose, not on whether a right to engage in sexual conduct exists generally.

Finally, the Ohio Supreme Court, in State v. Lowe (Ohio Feb. 28, 2007), rejected (again over a dissent) an effort to use Lawrence to strike down a ban on consensual sexual conduct between a stepparent and adult stepchild. The Ohio court stressed that Lawrence did not announce a new fundamental right, and thus concluded:

[T]the state in this case distinguishes Lawrence as being limited to consensual sexual conduct between unrelated adults. Lowe and his stepdaughter were not unrelated. The state argues that since Lowe has no fundamental right in this case, and the state has a legitimate interest in prohibiting incestuous relations and in protecting the family unit and family relationships, the rational-basis test should apply. . .

. . . Lawrence did not announce a "fundamental" right to all consensual adult sexual activity, let alone consensual sex with one's adult children or stepchildren.. . .

Ohio's statute serves the legitimate state interest of protecting the family unit and family relationships. While it is not enough under the rational-basis test for the government to just announce a noble purpose behind a statute, the statute will pass if it is reasonably related to any legitimate state purpose. . . . Ohio has a tradition of acknowledging the "importance of maintaining the family unit." A sexual relationship between a parent and child or a stepparent and stepchild is especially destructive to the family unit. R.C. 2907.03(A)(5) was designed to protect the family unit by criminalizing incest in Ohio. Stepchildren and adopted children have been included as possible victims of the crime of incest because society is concerned with the integrity of the family, including step and adoptive relationships as well as blood relationships, and sexual activity is equally disruptive, whatever the makeup of the family. . . . [P]arents do not cease being parents - whether natural parents, stepparents, or adoptive parents - when their minor child reaches the age of majority.

Accordingly, as applied in this case, R.C. 2907.03(A)(5) bears a rational relationship to the legitimate state interest in protecting the family, because it reasonably advances its goal of protection of the family unit from the destructive influence of sexual relationships between parents or stepparents and their children or stepchildren. If Lowe divorced his wife and no longer was a stepparent to his wife's daughter, the stepparent-stepchild relationship would be dissolved. The statute would no longer apply in that case.

(As Howard Bashman has noted - and as the Utah court discussed footnote 10 at page 23 of its opinion, and the Connecticut court addressed as well - there have been other challenges based on Lawrence as well. In one, a recent 11ith Circuit decision that upheld Alabama's ban on sale of sex toys on the grounds that unlike Lawrence "the statute at issue in this case forbids public, commercial activity" but also explicitly concluded that "public morality survives as a rational basis for legislation even after Lawrence, and we find that in this case the State's interest in the preservation of public morality remains a rational basis for the challenged statute." In another, the same issue presented in Lawrence was decided the opposite way in the context of the military's ban on sodomy by the Court of Appeals for the Armed Forces (discussed here by Phil Carter)).

As it turns out, both Rick Santorum and his critics can claim some measure of vindication from the Utah, Connecticut and Ohio decisions. Santorum (who, you will recall, gave his famous interview before seeing precisely how the Supreme Court would frame its decision) has been proven right about the flood of efforts to use Lawrence to overturn well-settled prohibitions on sexual conduct long thought to be uncontroversially subject to criminal sanction, as well as about the fact that members of the judiciary (including the dissenters in Utah and Ohio) would find those arguments appealing. Santorum's critics can point to the fact that the courts have, in fact, found ways to draw lines to keep Lawrence from having such slippery-slope effects.

At the end of the day, though, the stronger criticism of the Lawrence decision, like the Ninth Circuit's decision in the T-shirt case, is that it sucks the courts into making a whole new body of law to distinguish between conduct that is favored and protected by the Constitution, and conduct that is disfavored and properly subject to societal sanction or regulation through the democratic process. But that body of law is not based on anything in the Constitution, but rather in the courts' value judgments about social interests in the family, or the protection of students - judgments the legislatures are equally competent to make in a way that reflects the collective wisdom and experience of society. That's why even the victories over efforts to expand the Lawrence decision are signs of defeat for judicial restraint in the culture wars.

Posted by Baseball Crank at 12:00 PM | Law 2006-08 | Comments (10) | TrackBack (0)

Thanks for this analysis, Crank. It's very helpful to a non-lawyer like me. Does it look as if the courts are thinking that the Lawrence (sorry, I always forget how to do html) decision went too far, and that they are chipping away at it? Is this how Roe v. Wade will be overturned? In other words, the Roberts court will never say that the Roe decision was wrong, but will silently encourage lower court decisions, based on state statutes, that eviscerate Roe by making it nearly impossible for a woman to get an abortion?

I always thought Roe was a bad decision because it put abortion, a very difficult issue on which I think both sides are sincere and have meritorious arguments, into play in federal politics with yes or no being the only possible answers. Groups like Emily's List tore important constituencies away from the Democrats while the Christian Right captured the Republican party. I always wished that Roe would go away so that politics could return to being about compromise instead of take no prisoners.

Now I'm beginning to think differently. legally correct or not, Roe established a right. If the courts return decisions about that right back to state legislatures, we are in for another 30+ years of culture wars. While all this is going on, the unfunded liabilities of Medicare and Social Security continue to grow and our foreign enemies sit back and laugh at us.

Posted by: jimbo at March 6, 2007 3:56 PM

The underlying content here is that common sense seems to be coming into play. I can tell you, I live in the Port Washington School District, and this suit made absolutely no news whatsoever.

Common sense again. My oldest son had an AP Psych class this year that is supposed to be one year long. Except they decided to make it one semester long, ending in December, with the AP exam to be in May. Let's now add the fact that the teacher was pregnant, and left on maternity leave with a month to go. So the kids got a teacher who didn't know them, so the grading gets screwed up (not a small thing in a college application year). If we had known the teacher was pregnant, plans might have changed. So common sense indeed says her actions did effect others, and we had a right to know.

Also, since we give states (and DC I guess the right to regulate alcohol sales in so many other ways--actually when and where it can be sold, I don't see the issue with how it's packaged. There are places in the deep south where you can only get those airplane bottles of booze.

I kind of disagree (well, somewhat, it's really strange) about a step sad and step daughter. It's plain gross, no way around it. My only argument, and it may not be germane here, is that I don't like the idea of a governement horning in on a family unit (however it's comprised) and deciding what's best for it. The problem in this case, how do you decide that, and still find against this clown who goed after his stepdaughter. I was always a Woody Allen fan, and refuse to spend a nickel on anything he does after his Soon Yi stuff. But it's a fine line if everyone is over 21. Common sense says no.

Posted by: Daryl Rosenblatt at March 6, 2007 5:47 PM

So the state can stop me from buying or selling a 40 ounce bottle of brew and sex toys in certain neighborhoods; it can stop a teacher from having sex with his students and a stepfather from having sex with his stepdaughter; it can stop a man from taking multiple wives; and it can stop students from wearing disruptive clothes to class.

But it can't stop two consenting adults from having sexual relations in the privacy of their own home free from implicit or explicit coercion.

I don't have a problem with that and neither do the courts. But apparently Crank does.

Posted by: PatrickG at March 6, 2007 10:12 PM

Bowers v. Hardwick (overturned by Lawrence v. Texas and pined for by Crank) was one of the worst, if not the worst, decisions handed down by the Supreme Court in the last century. That it occurred barely 20 years ago makes it all the more loathsome.

There is no state interest to protect at all...never mind one worth violating a person's fundamental rights.

How can any true conservative disagree?

Posted by: JPatrick at March 7, 2007 7:51 AM

"How can any true conservative disagree?"

I don't think Crank (or many of us) necessarily pine for the result of Bowers but rather for the ideal that the states are free to make silly laws that the federal courts are then powerless to overturn simply based on their sense of the prevailing PC wind. Justice Thomas's dissent in Lawrence is an excellent summation of this viewpoint.

Posted by: Maryland Conservatarian at March 7, 2007 9:11 AM

I agree -- the hurdle to clear for states to pass a law is pretty low, so long as it is non-discriminatory and doesn't violate a fundamental right. BUT before we even reach those last two qualifiers, the laws in Bowers and Lawrence didn't even clear the first hurdle. It wasn't rationally related to any state interest.

Posted by: JpatrickG at March 7, 2007 9:28 AM

PatrickG -- You don't have to object to two consenting adults having sexual relations in their home to disagree with Lawrence. The problem with Lawrence is that it finds a constitutional right that is not explicitly provided by the Constitution, and then others use that right to do through the courts what they cannot do in the legislature. Crank's point is that Lawrence led to exactly what Lawrence's critics feared -- using Lawrence to advocate polygamy and other practices. Under Lawrence, why shouldn't consenting adults be free to marry more than one person? Why shouldn't brothers and sisters be allowed to marry if they know the risks? After Lawrence, the courts are now in the role of drawing the line of what is and what is not acceptable between consenting adults when that line drawing should be done by citizens through their elected representatives.

Posted by: WD at March 7, 2007 11:36 AM

"Under Lawrence, why shouldn't consenting adults be free to marry more than one person? Why shouldn't brothers and sisters be allowed to marry if they know the risks?"

All of those issues involve protecting a state interest: preventing the birth of inbred children; upholding the instiution of marriage.

There is NO state interest being protected by the laws under review in Lawrence and Bowers. So the state can't even get over the first hurdle -- "rationally related."

Yes states can pass silly laws, but they can't impose on our liberty for absolutely NO reason. And just because they fail to show a reason doesn't mean a new constitutional right was established.

Posted by: PatrickG at March 7, 2007 12:05 PM

Patrick, WD is right. As you'll see from my posts at the time, I would have been all in favor of repealing the sodomy laws; I agree as a matter of political philosophy that the government has no business enforcing laws like that. But not all bad laws are unconstitutional. Do you really think the people who ratified the 14th Amendment thought they were abolishing sodomy laws?

Posted by: The Crank at March 7, 2007 12:26 PM

RE: Do you really think the people who ratified the 14th Amendment thought they were abolishing sodomy laws?

Without doing any research on the topic, my guess would be that in the post-Civil war years, with the country trying to mend itself, those tasked with updating the Constitution to recognize emancipation did not contemplate this type of nonsense.

Posted by: PatrickG at March 7, 2007 4:47 PM
Site Meter 250wde_2004WeblogAwards_BestSports.jpg