In today’s column, I analyze a significant administrative law case handed down by the U.S. Supreme Court earlier this week, City of Arlington, Texas v. Federal Communications Commission (FCC).  Arlington v. FCC is an extremely interesting decision in that it has many of the trappings of an important Supreme Court ruling—a divided (5-1-3) Court, a dissent (by the Chief Justice) proclaiming a “fundamental” disagreement with the majority, a majority opinion expressing concern that the dissenters want to radically rewrite an area of law—and yet close inspection is required to get a meaningful sense of the space between the different positions staked out by the Justices in the case.

Background of the Case and the Majority’s Application of Chevron Deference

The dispute in Arlington involves the process for locating and constructing wireless communication towers.  The federal Telecommunications Act of 1996 places meaningful limits on the power that state and local governments would otherwise enjoy, under, for example, land-use and zoning regulations, to impede the installation and modification of such towers.  The Act also imposes procedural requirements on states and localities; in particular, it requires state or local government to respond to a wireless service provider’s application to construct a tower “within a reasonable period of time after the request is duly filed.”  In the decade-plus since the Act was adopted, companies in the wireless industry have felt that state and local governments have been taking too long to process tower construction requests, and so industry representatives asked the FCC to provide clarity as to what “reasonable period of time” means.  The FCC, using its general powers to implement the provisions of the 1996 law, issued a ruling to the effect that state and local governments should ordinarily process applications within 150 days (and even fewer days for some kinds of applications.)

State and local governments, including the City of Arlington, Texas, challenged this FCC rule on the ground that the FCC did not have authority to interpret the term “reasonable period of time.”  Instead, contended the challengers, ambiguity in this term could be interpreted and resolved by courts only.  The United States Court of Appeals for the Fifth Circuit rejected the challenge, holding that Congress did not clearly resolve what “reasonable period of time” meant, and that in light of this textual uncertainty, the FCC’s interpretation of that term was entitled to deference under the famous 1984 administrative law case of Chevron v. Natural Resources Defense Council, which holds that certain agency interpretations of statutes are to be upheld so long as they are reasonable and permissible readings, even if they are not the interpretations that courts would embrace in the first instance.  In other words, under Chevron, certain, minimally plausible, agency interpretations of ambiguous statutes carry the day, even if courts, confronted with the questions anew, would find those interpretations to be less convincing than other interpretations.

Arlington took the case to the Supreme Court and argued that Chevron deference to agency interpretations makes sense in many settings, but not, as here, where the agency has interpreted a provision “that concerns the scope of the agency’s statutory authority (that is, its jurisdiction.)”  More specifically, the challengers of the FCC ruling contended that Chevron deference is not appropriate as to “jurisdictional” questions concerning “the who, what, where and when of regulatory power.”  Rather, deferring to agency interpretations of statutes is warranted under Chevron only when the agency’s power to regulate in a particular area has already been determined, and the question is how the regulation will be undertaken.

On Monday, the Supreme Court spoke, and the majority in Arlington emphatically and repeatedly rejected this proffered distinction, between an agency’s “jurisdiction” to regulate (as to which Arlington said no deference should be accorded the agency’s reading of the statute), and the agency’s decisions about how to regulate (as to which interpretive deference would still apply.)  Justice Scalia’s majority opinion (joined by Justices Thomas, Ginsburg, Sotomayor and Kagan) said this distinction is based on a “misconception” and a “premise [that is] false,” and labeled the distinction “an empty distraction,” “mental acrobatics,” and a “mirage.”  According to Justice Scalia, “[n]o matter how it is framed, the question a court faces when confronted with an agency’s interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority.”  There is no difference between questions of how the agency regulates, and questions of when, where and as to whom the agency regulates.

Instead, wrote Justice Scalia, as long as an agency is given by Congress the general power to administer a statute through the promulgation of rules and the resolution of disputes, and as long as the meaning of the statutory provision in question has not been definitively resolved by Congress, the agency is entitled to deference as to how to interpret and apply the provision.  Indeed, Justice Scalia argued, to embrace the distinction the challengers advocated would be to pull the Court one large step down the path of dismantling the Chevron deference idea altogether.  And since the majority had no desire to take such a step, it upheld the Fifth Circuit’s decision to afford the FCC’s interpretation of the term “reasonable period of time” substantial deference.

The Concurring and Dissenting Justices’ Views

Justice Breyer agreed with some of what Justice Scalia said, and he concurred in the majority’s bottom line—that the Fifth Circuit should show deference to the FCC in this case—but Justice Breyer wrote separately to emphasize that he thought more factors should be considered before deference is appropriate. Justice Breyer found relevant not just the FCC’s general power to administer the Act and the ambiguous nature of the term “reasonable period of time” (the two factors most prominent in Justice Scalia’s analysis), but also that the decision of how much time it should reasonably take to process an application to build or modify a wireless tower involves detailed knowledge of the industry, such that the FCC’s expertise in this field would assist in giving intelligent meaning to the statutory language.  And he found nothing in the larger statutory framework that suggested any countervailing reason to be distrustful of FCC interpretive power here.

Chief Justice Roberts, joined by Justices Kennedy and Alito, dissented.  Although they did not identify particular reason to be wary of FCC interpretive power in this setting in particular, they expressed deep concern about giving agencies too much interpretive power generally.  Indeed, the most interesting and important aspect of the dissent (and perhaps the entire case) was the dissatisfaction the dissenters expressed with the modern administrative state.  They described how, today, administrative agencies “as a practical matter . . . exercise legislative power, . . . executive power . . . and judicial power. . .” , and that the “accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan[, but rather] a central feature of modern American government.”  Echoing some of the rhetoric used by a majority of Justices to reject the Commerce Clause as a basis for Congress’s enactment of the Affordable Care Act, the dissenters registered their belief that “the Framers could hardly have envisioned today’s vast and varied federal bureaucracy and the authority administrative agencies now hold over our economic, social and political activities.”

The dissenting Justices also lamented how difficult, for practical and other reasons, it is for the President to keep watch over an ever-growing and increasingly active army of federal bureaucrats—”with hundreds of federal agencies poking into every nook and cranny of daily life.”  And they worried about the breadth of agency discretion that Congress creates when it passes laws directing the executive branch to regulate “in the public interest” or for such other, equally grandiose but equally undefined, purposes. In this brave (my term, not theirs) new world, the dissent observed, a citizen “confronting thousands of pages of administrative regulations” might “perhaps be excused for thinking that it is the agency really doing the legislating.”

In light of Congress’s delegation of basic, essentially legislative, policy decisions to the executive branch, and given the President’s inability or disinclination to meaningfully oversee all of the alphabet soup of federal agencies, the dissenters were fearful of construing Chevron deference too broadly, because doing so would reduce the power of the courts to rein in agencies.

The dissenters agreed with the majority that when a statutory provision is ambiguous, and when Congress has given the agency the power to interpret that statutory provision in particular, courts should defer to agency interpretations; the dissenters thus purported not to want to cut back on the core of Chevron deference.  But the dissenters would insist that, before deference is given, there be a demonstration not simply that Congress gave the agency the general power to administer the statute as a whole, but rather that Congress gave the agency the power to interpret the specific provision at issue.  Usually (maybe almost always), Congress’s conferral of general power to administer a statute would support a finding that Congress intended to confer power to the agency to interpret the relevant substantive or procedural provision at issue, but the dissenters apparently can envision situations in which an agency is given general power to administer a statute, but not the power to interpret at least some of the statute’s particular provisions.  The dissenters didn’t know that to be the case for the FCC and the statutory provision at issue in this dispute, but they would remand to the Fifth Circuit to at least ask and answer the question of whether Congress intended the FCC to be able to interpret the “reasonable period of time” provision in particular, before deference to the agency’s understanding of that term is afforded.

How Deep Is the Disagreement Between the Majority and Dissent?

Only time will tell whether the schism between the majority and the dissenters in Arlington portends bigger battles over Chevron deference, one of the main pillars of modern administrative law.  Even the (unusual trio of) dissenters do not defend the “jurisdictional/non-jurisdictional” line that Arlington had advanced.  But they do propose a different and potentially important line—between Congress’s creation of agency power to implement a statute generally and Congress’s decision to give the agency power to interpret any specific provision in particular.  It might be a rare case in which Congress has given to an agency the power to administer a statute generally but seems not to have given the agency the power to interpret all the meaningful, ambiguous, provisions therein—and I say “seems” here because if Congress has made clear its intent to withhold agency power to interpret any particular statutory provision, even the majority would respect that desire—but that is where we may see future skirmishes.  And note that, although the majority does not seem interested in pursuing the dissenters’ invitation to look at each statute provision by provision—and instead prefers a bright-line approach—there is nothing in the majority ruling, notwithstanding some of its broad language, that completely forecloses the possibility of finding that a particular ambiguous provision in another statute in a future case does not warrant Chevron deference, notwithstanding an agency’s general power to administer that statute; Arlington could be easily distinguished in such a later case on the ground that there was nothing in the Telecommunications Act that undercut an inference that Congress intended the FCC to have the power to interpret the “reasonable period of time” provision alongside other substantive provisions. (Indeed, that was one of the big points in Justice Breyer’s concurrence.)

So the different approaches taken by the majority and the dissent in Arlington may not end up mattering in many real or hypothesized cases.  But there does seem to be a meaningful difference concerning the extent to which the majority and the dissent are comfortable with the Chevron regime at a more basic level.  For the majority, as dangerous as giving agencies broad interpretive power under Chevron may be, it is better than giving judges leeway to pick and choose when to defer to agencies and when not to.  Judges are even less politically accountable than are agencies, and more prone to generating disuniform interpretations of statutes based on ad hoc judgments.  According to the majority:  “The excessive agency power that the dissent fears would [absent a strong Chevron deference doctrine] be replaced by chaos.”

Maybe there is something to commend this categorical preference for agencies over courts—and make no mistake, that is what Chevron deference is.  In this regard, it is worth noting that the majority in this case that favors broad agency interpretive power is comprised of both “liberal” and “conservative” Justices; when Justices of different ideologies agree on a contentious issue, there is often something good to be said about the arguments they find persuasive. But courts do have one advantage over agencies; if a court misinterprets the meaning of a congressional statute, Congress can in theory amend the statute more easily than it can if an administrative agency misinterprets the statute (under a regime where a court is bound to defer to that misinterpretation.)  Any attempt by Congress to rein in an overly aggressive agency interpretation might be met with a threat of a Presidential veto.  The fact that the executive branch wears many hats (involved in lawmaking, law applying and law interpreting) complicates efforts by Congress to keep it in bounds.  In this respect, the instinct of the dissenters that broad delegations of power to the executive branch are particularly scary (and maybe more so than even broad delegations of powers to the judiciary) is an important one to consider and keep watch on in the future.  This is especially true in light of, as the dissenters put it, “the dramatic shift in power over the last 50 years from Congress to the Executive.”

By now, it is becoming abundantly clear that there is no actual scandal behind the supposed “political targeting” of some conservative groups—and, it turns out, of some liberal groups as well.  As early as last week, both John Dean (in a column here on Verdict in which he called the pseudo-scandal “all smoke and no fire”) and I (in a post on Dorf on Law) saw through the circus atmosphere that had quickly developed around the entire non-scandal.

As so often happens in American politics, however, inconvenient facts cannot derail a train that has quickly built up a head of outraged steam.  By the weekend, Republicans were making all kinds of absurd claims about how the White House had been auditing its conservative enemies.  (Given that this was a specific dirty trick of the Nixon Administration, John Dean’s opinion that the current situation is completely different really ought to dispose of such claims.)

This manufactured outrage was not, moreover, limited to the talk show hosts and tricorner-hat-wearing conspiracy theorists.  Governor Bobby Jindal of Louisiana, who has (at least in his own mind) some possibility of becoming the next Republican nominee for President, brought a convention of conservatives to its enraged feet over the weekend, saying: “By being here today, every one of you has just signed up for an audit by the IRS.  You are officially now on the White House enemies list.”

Other top-level Republicans have piled on, adding supposition upon supposition, until one would think that the facts might actually have supported anything other than the what they actually revealed: findings of low-level mistakes and mid-level crisis mismanagement at the IRS.  This, however, is not surprising.  The national Republican Party is now even more completely subservient to its most extreme elements, who punish officeholders who do not say exactly what they want to hear.

If this were merely a passing storm, then maybe it would not be so bad.  Perhaps it would be an opportunity for the self-styled victims of big government to vent their crazed superstitions, before sanity regained traction and the facts forced people in positions of responsibility to move forward with only the minor changes that the situation requires.

Unfortunately, I suspect that this current tempest will not be limited to its teapot.  It will, instead, very likely become yet another moment that American arch-conservatives will use to make matters worse, adopting policies that will not only harm the country but that will also contradict the central dogma of the anti-government forces: that they want the government to stop being wasteful.

The Chickens Have Come Home to Roost: The Inevitability of the IRS’s Problems, in the Face of Unrelenting Hostility From Republicans

As investigative journalists quickly discovered (as published in The New York Times, The Houston Chronicle, and The Los Angeles Times), the low-level mistakes that have now caused such outrage have their roots in years of Republican hostility to the IRS.  Even though Republicans claim to be dedicated to law and order, their hatred of taxes extends so far that they are willing to make it easier for people to cheat on their taxes.  Reducing the IRS’s budget is a deliberate tactic on their part: No tax cops, no taxes.

When Republicans regained the majority in the House of Representatives in 1995, as part of the Gingrich Revolution, they quickly set about trying to prove that the IRS was out of control.  After holding hearings in which all manner of claims were made against the IRS, the Republicans ended up finding only a tiny handful of examples of true overreaching.

Even so, the Republicans quickly created an atmosphere in which IRS employees feared for their jobs, with Republicans’ rhetoric (and some of their actions) suggesting that it would be a firing offense simply for any taxpayer to lodge a complaint against an IRS employee.  Although some semblance of balance was ultimately restored within a few years, the message was clear: The Republicans are out to get the IRS, and the Democrats are playing weak defense, at best.

This dynamic, in turn, led directly to the budget cuts and low morale that created such unfortunate results in the Cincinnati office of the Exempt Organizations division of the IRS.  Nearly every aspect of the non-scandal is infused with the results of budget cuts: operations being “streamlined” to save money, which resulted in understaffed and under-qualified employees being given too much to do, with no supervision to prevent mistakes.  Senior staff left the IRS in droves, having received the clear message that their hard work and expertise were no longer valued.

As a result of the Republicans’ current group primal scream, we can be sure that this trend will be made immeasurably worse.  The most experienced people at the IRS, who possess knowledge and skills that tax-minimizing companies would love to exploit, will be ever more tempted to leave the agency.

Moreover, there is simply no way that the Republicans will now do anything but cut the agency’s budget.  Even though the fundamental problem is that the IRS is under-funded, the Republicans’ response to suggestions for restoring the IRS’s budget and staffing will surely be, “We do not reward misbehavior.”

In short, Republicans will demonstrate yet again that they do not understand the truth behind even the most well understood aphorisms, like “You get what you pay for,” preferring instead to be penny-wise and pound-foolish.

The IRS’s Role in American Life, and the Reasons That Its Reach Has Expanded

The problem, however, is actually even worse than the looming budget cuts the IRS will face.  We will not merely see the IRS forced to do more with even less money and support, but we will also see the IRS’s uniquely central role in efficient governance destroyed by the Republicans’ retribution against the agency.

What do I mean when I say that the IRS has a “uniquely central role in efficient governance”?  Three years ago, I wrote a column in which I pointed out that the IRS for decades has been asked—by Republicans and Democrats alike—to administer ever more of our federal programs.

Why?  Because politicians in both parties have learned to love “tax expenditures”: the indirect spending in which the federal government engages when it allows citizens and corporations to pay reduced taxes by engaging in favored activities.  Here is an example of direct versus indirect government spending:  We could simply send people checks to subsidize their ownership of houses.  Instead, we allow homeowners to deduct the interest on their mortgages, as well as their property tax payments, indirectly making it less expensive to buy a house.  Whether the spending is direct or indirect, the Treasury ends up with less money, just as if it had sent checks to homeowners.

How pervasive are tax expenditures?  So much so that the Treasury Department’s annual estimates of them extend for pages and pages, adding up to over one trillion dollars per year in indirect spending.  Tax expenditures, in fact, are so much a part of the government’s role in the economy that the failed Romney/Ryan campaign staked its entire budgetary plan on the idea that it could reduce tax rates but still close out the deficit—by eliminating tax expenditures!  (Their claims were debunked, but not because the tax expenditure budget is small.  It just is not big enough to finance the huge regressive giveaways that Romney and Ryan advocated.)

There is, in short, a surprisingly large amount of money being funneled to recipients of the government’s “largesse,” but politicians insist on calling these giveaways “tax cuts” rather than spending increases.  Indeed, earlier this year, the senior Republican on the Senate Finance Committee huffily insisted that tax expenditures are not expenditures at all.  Why?  Because he did not want to think of it that way—even though both conservative and liberal economists have agreed for years that tax expenditures are the logical equivalent of direct spending.

In short, Republicans and Democrats alike have created a system in which the IRS is the essential government agency that is in charge of the governance of a wide array of spending programs—even though those programs are really not fundamentally related to collecting taxes.  Politicians might say that they hate the IRS, but they certainly act as if they trust it implicitly.

What We Will Gain by Moving the IRS Out of Its Important Role: Only Duplication, Waste, and Errors

As I noted in my column in 2010, we could end the practice of tax expenditures, forcing the government to spend money directly.  Doing so, however, would have an unfortunate side effect.  The IRS is actually staffed by competent and dedicated civil servants, and it is in many ways the natural agency to administer the programs that reflect many of our spending priorities.

For example, there are many health-related tax expenditures, the existence of which puts the IRS in the position of determining the legitimacy of, for example, claims for deductions for medical expenses.  If we wanted to, we could move all of those determinations over to the Department of Health and Human Services (HHS), which might intuitively seem to be the natural place to house such a program.

This, however, would end up being wasteful—or worse.  Many of the benefits that Congress has enacted are sensibly tied to recipients’ incomes, with benefits phased out for those whose incomes rise to the point where a public subsidy is no longer needed.  So if HHS were indeed to administer the programs from now on, it would need to have a database containing sensitive information concerning the incomes of all Americans.

Where would that information come from?  One possibility would be to have HHS collect the information itself.  That, however, would be a classic case of wasteful duplication.  We already collect that information, and the IRS possesses it (by the very nature of administering an income tax).  Thus, if the IRS is cut out of administering health-related programs, we will soon see government waste increase, at the very least with HHS employees wasting time and money coordinating with IRS employees to exchange sensitive information about citizens’ incomes.  (And if Republicans are outraged about government divulging information about its citizens, then adopting an anti-IRS rule would make matters worse, not better.  Every information exchange across agencies carries a risk of erroneous leaks of such information.)

That problem, moreover, is made all the worse by the reality that many other government agencies have been made completely toothless, at Republicans’ insistence.  Consider the issue at the heart of the current non-scandal, which is the question of whether various tax-exempt groups are engaging in “excessive politicking” under the law.  Which agency would be the most obvious alternative to the IRS, to enforce such rules?  The Federal Election Commission would seem to be the natural fit.  But the FEC has been turned into a national joke—so much so that the comedian Stephen Colbert was able to win awards for exposing the ridiculousness of the FEC and the laws that it fails to enforce.

Sadly, It Is Too Late: At This Point, We Are Going to Have to Endure the Waste That Will Inevitably Flow From Shrinking the IRS

In my column from three years ago, after I described how the IRS’s role in administering tax expenditures actually saves money and protects privacy, I argued that we should simply admit that we secretly love the IRS, and let it do the many jobs that Congress has foisted upon it.

Now, I fear, we have reached the point where that is no longer possible.  The IRS is barely going to have enough money to try to carry out its basic role of collecting tax revenue.  Every other activity will have to be spun off—even though the IRS could perform these activities better and cheaper than other agencies could.

Those who have any doubts about this prediction need only notice the Republicans’ opportunistic tying of the IRS non-scandal to the Affordable Care Act (ACA).  Their complaint is now that the IRS is going to collect the tax that the Supreme Court recognized in its decision last year, allowing the ACA to stand.  Republicans are even pointing absurdly to the coincidence that the administrator in charge of setting up the 2014 launch of the ACA had at some point worked on issues that (they claim) are somehow connected to the non-scandal.

Therefore, in an exceptionally perverse version of the “heckler’s veto,” I think we have reached the point where it is no longer reasonable for those of us who believe in good government to imagine that we can maintain the advantages of having tax expenditures run through one highly diligent agency.  The IRS will, for an unknown number of years, be on the defensive, and any functions of government that can be moved elsewhere, should be.

This means, of course, that believers in good government will be defending a position that is very much a second-best outcome.  Republicans will do everything possible to argue that the tax expenditures that help everyone except the wealthiest Americans should be eliminated entirely, rather than moved within the Executive Branch.

In arguing to maintain those programs, the Republicans’ opponents will find themselves saying that, yes, there is a better and less expensive way to administer these essential programs, but Republicans’ blind hatred of the IRS has made it impossible for the government to be as efficient as possible.

Republicans will, therefore, confront the country with a very unappealing choice:  Either discontinue our efforts to make this a more humane country, or continue those efforts with our hands tied behind our backs.  It did not have to be this way, but Republicans might finally have truly made things that bad.

Pundits typically point to ideologically divided 5-4 rulings of the U.S. Supreme Court to chart the mood and progress of the Court.  But in fact, 5-4 rulings are toss-ups, reflecting accidents of the timing of Justices’ appointments, retirements and deaths as much as anything else.  If one wants to discern long-term trends on the Court, one would do better to look at the many uncontroversial cases the Court decides.  Monday’s unanimous ruling in Metrish v. Lancaster would be a good place to start.

In Lancaster, the Court rejected habeas corpus relief for a man who was convicted of murder, even as the Justices acknowledged the possibility that, in preventing Lancaster from utilizing a defense that was on the books at the time of the crime, the Michigan courts may have violated his constitutional right to due process.  The case thus provides a window into the success of conservatives’ decades-long campaign to weaken the availability of the writ of habeas corpus.  It also shows how the center of opinion on habeas corpus has drifted far to the right during that period.

A Brief History of Habeas Corpus in the United States

Article I of the Constitution protects a right of habeas corpus—entitling prisoners to go to court to make their captors provide a legal justification for their detention.  Prior to the Civil War, however, the federal writ of habeas corpus was generally only available to challenge detention by federal authorities.  Fearful that the states of the former Confederacy would undermine federal rights—especially the rights of the freedmen and their allies—during Reconstruction, Congress expanded the writ, permitting challenges to state detention as well.  The habeas statute has been amended and qualified in various ways since then, but its current core remains more or less what it was when it was enacted in 1867: It authorizes a court to order a prisoner released if he or she “is in custody in violation of the Constitution or laws or treaties of the United States.”

Nonetheless, over the last fifteen decades, there have been important changes to the way in which that provision is implemented.  In the early days of the statute, federal courts granted nearly absolute deference to state court judgments.  Habeas was available if a prisoner was subject to state executive detention, but if the prisoner had had a state trial—even a flawed one—federal courts were reluctant to grant habeas relief, so long as the state court had had proper jurisdiction over the case.

Over time, habeas as a “collateral” remedy for state prisoners expanded.  First, federal courts held that a state court conviction would not bar federal habeas relief unless the prisoner had been given a “full and fair” opportunity to raise his federal claims.  Then, for a time, habeas became an opportunity for federal courts to take a fresh look at state court convictions.  Federal courts continued to give deference to state court factual findings, but for the roughly forty-year period beginning with the 1953 ruling in Brown v. Allen, federal courts decided legal questions on their own.

Inevitably, the liberalization of habeas rules sparked a conservative backlash.  Conservative politicians and judges attacked expansive interpretations of the habeas corpus statute as being both soft on crime and insufficiently protective of states’ rights.  As the appointees of Presidents Nixon, Reagan and George H.W. Bush replaced holdovers from the more liberal Warren Court, the Justices cut back on habeas, imposing both substantive and procedural limits on its availability.

Politicians got into the act as well, and not just Republican ones.  In 1996, large bipartisan majorities in Congress passed, and President Clinton signed, the Antiterrorism and Effective Death Penalty Act (AEDPA).  It codified some of the ways in which the Burger and Rehnquist Courts had restricted habeas, but it also added its own new limits, as well.

Perhaps the most significant new limit was AEDPA’s overruling of Brown v. Allen.  Under AEDPA, federal courts no longer determine whether state courts correctly rejected a habeas petitioner’s federal claims; they only grant relief if the state courts applied federal law unreasonably—a deferential standard.

The Claim in the Lancaster Case

The Lancaster case involved the application of AEDPA’s unreasonableness test to a due process claim.  Lancaster was tried for murder.  He admitted to being the killer, but his lawyer argued that he was not guilty of murder due to his diminished mental capacity.  At the time of his crime and his original trial, Michigan allowed a criminal defendant to argue that even if he was not legally insane, he nonetheless suffered from a mental illness that meant he could not have formed the specific intent that was necessary for him to be guilty of the crime charged.

Lancaster offered his diminished capacity defense and was convicted, but that conviction was later overturned.  By the time the state sought to retry him, however, the Michigan Supreme Court had ruled, in an unrelated case, that a criminal defendant should not be permitted to argue diminished capacity to negate specific intent.  According to the Michigan Supreme Court, state lower court precedents permitting that defense were inconsistent with a 1975 statutory revision of the statute governing mental illness defenses.  Hence, at his retrial, Lancaster’s lawyer was prevented from making a diminished capacity defense.

Lancaster argued that by failing to permit him to use a defense that was on the books when the relevant conduct occurred, the state had violated his right to due process.  The state courts disagreed but the U.S. Court of Appeals for the Sixth Circuit found Lancaster’s argument compelling and ordered habeas relief.  Then, on Monday, the U.S. Supreme Court reversed the Sixth Circuit, reinstating Lancaster’s conviction.

According to the Supreme Court, Lancaster’s case fell somewhere in between two of the Court’s own prior precedents.  In the 1964 case of Bouie v. City of Columbia, the Court held that due process forbade a state from retroactively applying a construction of a criminal trespass statute forbidding entering private property to people who refused to leave such property.  In the 2001 case of Rogers v. Tennessee, the Court permitted the retroactive refusal of a state court to apply the common law rule requiring that the victim of an attack must die within a year and a day of the attack, in order for the perpetrator to be charged with murder.  According to the Court in Lancaster, taking away the diminished capacity defense after the fact is more like a due process violation than the non-violation found in Rogers, but less like a due process violation than the violation found in Bouie.

And that was all that was needed to reject Lancaster’s claim under AEDPA, the Court reasoned.  Where, exactly, Lancaster’s case lies on the spectrum running from Bouie to Rogers was not important.  Maybe Lancaster’s due process rights were violated; maybe they were not.  But so long as there is room for reasonable disagreement, the Court said, then the Michigan courts’ refusal to find a due process violation in Lancaster’s case could not be deemed “unreasonable.”

To be clear, the Court was saying that Lancaster’s trial may very well have violated his due process rights, but it did not so clearly violate those rights as to entitle him to habeas relief under AEDPA.

Heads I Win; Tails You Lose

If that result sounds draconian, then that should tell you something about how dramatically the Court and Congress have narrowed the scope of habeas relief over the years.

Indeed, things look even worse when one considers that both AEDPA and the pre-AEDPA case law severely limited the ability of prisoners to invoke so-called “new rules” of constitutional law as the basis for a habeas challenge.  In deference to the supposed good faith of the state courts, the statute and the relevant precedents say that state courts need only try to apply the rules that were on the books at the time of the state court proceedings.

Thus, Congress and the Court had previously said that a prisoner may not benefit from new rules.  Now, in Lancaster, the Court has added that a prisoner may not benefit from old rules either.  For a state defending against a habeas petition, it appears that the only operative rule is Heads I win, tails you lose.

Three Reasons Why the Ground Shifted

Even if the result in Lancaster can be justified under AEDPA, there still remains the question of why the ground has shifted so far to the right on habeas cases over the last forty years or so.  No doubt the answer is complex but I would point to three factors.

First, Republican and Democratic politicians alike have mostly concluded that there is no political angle for them in supporting civil liberties for criminal defendants.  Although violent crime has declined substantially from the highs it reached after spiking in the mid-1960s through the early 1990s, Americans remain collectively traumatized by the experience.  Perhaps budgetary pressures will eventually lead to a softening of American criminal justice policy, but right now, politicians at every level and in both major parties have little to lose by being tough on crime.

Second, that attitude has seeped into the judiciary as well, including Democratic appointees.  The Lancaster opinion—authored by President Clinton’s appointee, Justice Ruth Bader Ginsburg—is striking in its matter-of-fact acceptance that AEDPA bars relief even for someone who may very well have been unconstitutionally convicted for conduct that was not criminal at the time in which he engaged in it.  It is nearly impossible to imagine a similar opinion being written by any of the earlier generation of liberal Justices.  They appeared to think that the constitutional right to habeas corpus extends to collateral review of state court convictions.

Third, and most speculatively, it is possible that the Court’s unanimous willingness to interpret the habeas rights of state prisoners narrowly arises out of the Bush/Obama detention policies.  As I noted above, the core traditional function of habeas corpus was to challenge executive detention without trial.  Yet for most of the last half-century, nearly all habeas cases in the federal courts were brought by prisoners who had already had a trial and appeal, but were using habeas as a vehicle for obtaining collateral review.  During that period, the Justices may have come to equate habeas-as-collateral-review with habeas, full stop.  If so, then at least the more liberal Justices would have understood new limits on the availability of habeas-as-collateral-review as putting limits on habeas itself—and they would have thus perceived such limits as posing a threat to core civil liberties, including the constitutional right to habeas itself.

However, since 9/11 and the use of the Guantanamo Bay Naval Base to detain captives, the Court has seen a series of cases in which habeas was used for its historic core purpose: to test executive detention without trial.  In those cases, the Court rebuffed the Bush Administration’s most aggressive positions.  Having done so, the Justices may believe that they have vindicated habeas, and thus, they may have less energy or inclination left to fight for habeas as a mechanism for collateral review of state convictions.

This last hypothesis is highly speculative and may be entirely mistaken as a causal account.  But if it is even partly true, that would be a shame.  Habeas as a collateral remedy can serve a valuable function in holding the state criminal justice systems accountable by providing a federal check on them.  That is not exactly the same function that the writ of habeas corpus historically played, but it is important nonetheless.

In the past week, two major news stories have sparked discussions across the nation about our attitudes toward preventive health policies. Although ostensibly very different, the two stories actually present deeply intertwined issues and reflect our society’s unease with diseases that are either unpredictable or poorly understood.

The first article addresses breast cancer. On May 14, 2013, renowned actress and director Angelina Jolie wrote a piece in The New York Times about her decision to undergo a preventive double mastectomy. Her article received widespread acclaim, as well as some criticism. The praise was directed largely toward Jolie’s article’s effect of raising awareness that breast cancer affects women (and men, to a lesser extent) without regard to wealth, social status, or profession, and that the decision to have a mastectomy—whether prophylactic or medically indicated—should not result in stigma or shame. Criticism of the article focused mostly on the perception that the factors affecting Jolie’s decision to undergo the procedure are portrayed simplistically and are not applicable to the vast majority of women.

The second article is on bacterial meningitis. The New York Times published an article on May 17, 2013, entitled “For Gay Men, a Fear That Feels Familiar” that discusses a deadly bacterial meningitis outbreak among gay men in New York City and the steps taken by one physician to curb the outbreak and raise awareness among at-risk individuals. The author of the article attempts to compare the outbreak to the early cases of HIV/AIDS, describing the ignorance, mystery, and fear surrounding the disease. However, unlike with HIV, there is a vaccine for bacterial meningitis. The challenge then, the article posits, is getting people to understand the risk of infection and to proactively take steps to prevent it (by getting a vaccine, currently offered for free in New York City, according to the article).

In this column, I compare and contrast these two discussions. On the one hand is the discussion of breast cancer—a disease that strikes without regard for what someone does in the evenings or on the weekends, or for how much money or fame one might have. One would be hard-pressed to accuse a person with breast cancer as having “deserved” it or having done something to contract it. On the other hand is a strain of bacterial meningitis that some describe as reminiscent of HIV, popularly associated with casual sex among men in dark alleys and back rooms. However, the outbreak could very easily have occurred in another close community, such as within a congregation of a Catholic church due to the sharing of a communion cup.

Using these two examples, I argue that to truly advance health policies, we must abandon our moral approbation toward both diseases and treatments, resolve to educate ourselves as to the health risks we face individually, and proactively take steps that are reasonably calculated to minimize our risk (and, in the case of infectious diseases, to minimize the risk to those around us).

Abandoning Moral Approbation Toward Disease and Treatment

According to a CNN opinion piece by Dr. Aaron Carroll, “[B]reast cancer awareness is at an all-time high in the United States.” Indeed, from Betty Ford’s 1974 disclosure of her breast cancer and mastectomy, to awareness campaigns such as that symbolized by the pink ribbon and the Keep A Breast Foundation’s “I heart boobies” slogan, it seems like everyone is at least “aware” of breast cancer. I recently attended the Kentucky Oaks (on the eve of the Derby), and the roughly 100,000 people in attendance had all donned pink in recognition of cancer survivors. Everyone can get behind the fight against cancer, racing for “the cure.” You can buy shirts that say “Fuck Cancer.” No one will stand against you.

Less talked about, though, is the actual treatment of cancer (breast or any other type). There is no clean “cure,” no panacea that will protect the undeserving innocent from developing this debilitating and often fatal disease. Rather, less-than-glamorous procedures like chemotherapy, radiation therapy, and surgery are the tools with which we fight cancers. And these tools often incur collateral damage: baldness, infertility, scars, to name a few. We do not as readily talk about the treatment of cancer because we are still holding out for a cure.

In that respect, Jolie’s op-ed is both a success and a failure. It is a success in that it talks about the treatment. She is telling women everywhere that her decision to undergo a mastectomy does not make her “less of a woman”; rather, she writes that she “feel[s] empowered that [she] made a strong choice that in no way diminishes [her] femininity.” Understood one way, she is telling women who choose to have a mastectomy, or who must have one, that they are no less female for doing so. As a man, I do not purport to understand what that means to a woman, but I can imagine that hearing that from a woman who is renowned for her beauty and her femininity can be powerful.

However, Jolie’s piece also fails to face head-on the ugly side of treating cancer. I do not in any way mean to diminish her experience, but her solution was a relatively elegant one (and I hope, an effective one). That is not going to be the case for many women. For one thing, some aspects of the surgery she described (such as the “nipple delay”) are complex, and many women who opt for that surgery may not have the same positive outcome she describes. Second, as several critics have pointed out, a mastectomy is a major surgical procedure that carries with it the same risks of any other major procedure, including the possibility that it will not effectively prevent breast cancer in moderate- and high-risk women.

Until someone of Jolie’s celebrity stature comes forward as an “everywoman,” we are not truly engaged in a frank discussion of cancers and their treatment.

In contrast to breast cancer, with its awareness campaigns, is the shadowy disease of bacterial meningitis. Although many states require college students to be vaccinated against the infectious disease before starting their freshman year, it is not a disease that receives the kind of attention that breast cancer does, particularly given that one strain of it primarily affects a small subset of the population.

According to the New York Times article on the latest New York meningitis outbreak, “the bacteria is [sic] carried in the nose and mouth. Though not as contagious as a cold or flu, it can be spread through kissing, sneezing or sharing a spoon.” From this description alone, bacterial meningitis would seem to be fairly indiscriminate in whom it affects. Indeed, it could have arisen in a church congregation that sips from a common communion cup, or among professional athletes who are constantly in close quarters in a locker room and playing field. However, in this particular instance, it mysteriously seems to target gay and bisexual men. The New York Times article states that seven men have died of this particular strain in New York City since 2010, and the rate of infection seems to have been accelerating over the last few months.

Much like the initial response to the HIV/AIDS epidemic, many people, including gay men, are nonchalantly dismissing the disease as something that afflicts promiscuous gay men who frequent sex clubs and bathhouses—as if it were gonorrhea or chlamydia. However, it is that very attitude that hinders both awareness and the treatment of the disease before it can become an epidemic.

Unlike with breast cancer, there is an effective vaccine against bacterial meningitis. Indeed, college freshman in most states have already been vaccinated against it. But the vaccine lasts only five years, so people who are at risk of contracting bacterial meningitis should get vaccinated (again, in some cases).

Thus, these two examples show how moral approbation and negative public perception—either of a disease itself, or of the treatment of a disease—can hinder advances in its prevention and treatment.

Educating Ourselves About Our Individual Health Risks, and Minimizing Them

Whether you are a woman with a family history of early-onset breast cancer or a gay man in an urban setting, it is incumbent upon you to learn and understand your risk factors, and to take appropriate steps based on your risk. Angelina Jolie acknowledges in her article that based on her family history and genetic testing, she “had an 87 percent risk of breast cancer and a 50 percent risk of ovarian cancer.” However, she also points out that “the risk is different in the case of each woman.” In other words, many women do not have the risk profile that Jolie has, and preventive double mastectomy is not the right solution for everyone (or, as it turns out, for most women).

In a similar way, if you are a gay man living in New York City, you are statistically at a higher risk for contracting bacterial meningitis, just as college freshman are. To effect positive attitudes toward preventive health measures, we must acknowledge facts in the absence of judgment. Bacterial meningitis is no more a “gay disease” than is the common cold. If we are at higher risk for certain diseases, then it is our responsibility to minimize or otherwise address that risk. In the case of infectious diseases, that responsibility is an ethical one.

In her article, Jolie laments the high cost of genetic screening for factors associated with higher risk of breast cancer. However, as Dr. H. Gilbert Welch points out in a CNN opinion, a strong family history of cancer may be as telling as the genetic test, and is certainly much cheaper to obtain.

One thing that the breast cancer awareness campaigns have accomplished is that screening for cancer now carries little or no stigma, in contrast with sexually transmitted infections (STIs) and diseases that are perceived to be associated with sexual activity (whether they actually are or not). That is one thing that our society will have to change in order to advance preventive health.

Attitudes toward health issues—whether related to cancer, infectious diseases, or other types of illnesses—are constantly evolving, and vary from culture to culture, as well. However, of universal importance is the need to prevent and treat illnesses simply because they are illnesses. There is no place for moral approbation or judgment in the prevention and treatment of disease.

After a scandal-free first term, and only a few months into his second term, President Barrack Obama is suddenly faced with a series of burgeoning scandals.  It’s a trifecta: Benghazi, IRS, and the AP’s phone logs.  But a close look shows that these supposed scandals are all smoke and no real fire.  While Congressional Republicans, Fox News, and other anti-Obama wags will try to keep them smoking, no high-level officials in the Obama Administration are going to get burned.  And the broader public will tire of watching the smoke. There is nothing Nixonian or Watergate-like about any of these purported scandals, and those claiming otherwise are remarkably ignorant of history.

As I wrote in my 2004 book, Worse Than Watergate: The Secret Presidency of George W. Bush, having experienced Watergate firsthand and having studied virtually every presidential scandal before and after Watergate (out of personal curiosity), I have some understanding of the nature and dynamics of scandals.  (Incidentally, I found the actions of Bush/Cheney to be worse than Watergate because their use of secrecy to take the United States to war in Iraq on the false pretense of pursuing weapons of mass destruction, and their use of torture, a crime against humanity, were way beyond scandal.)

Notwithstanding the plentiful material that is available on American political scandals, few American scholars study our scandals.  Indeed, I may be as much of a “personally experienced” expert on political scandals as can be found, so I am offering a few of my thoughts on Obama’s growing problems, while also drawing upon the thoughts of a academics who have studied them.

Although all scandals have much in common, each has its own unique DNA, so they must be addressed separately.  But let me begin with an analysis of the common characteristics of all modern political scandals.

The Nature of Modern Political Scandals

UK academic Robert Williams (University of Durham) undertook a study for Political Scandals in the USA (1998) noting that “[a]ttempts to classify scandals have been fraught with difficulties” because they are difficult to define.  Yet this definitional problem is less of  a problem with “political” scandals, for such scandals, by their very name, involve those within the political process.

As Williams notes, political scandals “tend to involve the use of public office for private benefit and/or the abuse of power in the pursuit of policy goals.” In addition, many such scandals have involved election finance. More specifically, he notes: “although every political scandal is different, they all usually involve allegations of violation of the political process and the illegitimate exercise of power.” I would add that they frequently involve sex as well.

Another UK scholar, John B. Thompson (University of Cambridge), I believe has even more perceptively analyzed modern scandal in his work Political Scandals: Power and Visibility In the Media Age (2000).  In examining the etymology of the word scandal, Thompson comes up with a modern working definition: The modern scandal “refers to actions or events involving certain kinds of transgressions which become known to others and are sufficiently serious to elicit a public response.” More specifically, modern scandals provoke a response by the mainstream (non-partisan, as well as both right- and left-leaning) media.

Viewing scandal in these terms, Thompson found that they all had common characteristics: (1) the transgression violated widely held values, norms or moral code; (2) typically there is an element of secrecy; (3) non-participants are offended by the transgression; (4) and this disapproval is expressed publicly by denouncing the actions or events; and, in most cases but not all, (5) the disclosure and condemnation of the actions or events damages the reputation of those responsible.  Most importantly, however, Thompson found that modern political scandals are “mediated,” meaning that the news and other media take the disclosure of the transgression, and make it an issue for public discussion.  In fact, if the media ignores a reported transgression, it will not likely become a scandal.

With this background in mind, let’s look at the three scandals that have erupted to confront the Obama Administration, taking them in the order they have arisen: The Benghazi scandal, the scandal regarding the IRS’s targeting of conservative organizations, and the scandal over the Department of Justice’s subpoenaing the telephone records of reporters and editors at the Associated Press.

The Benghazi Scandal

As readers will doubtless recall, on September 11, 2012, the American diplomatic mission at Benghazi, Libya, was attacked, and ten people were injured, along with four who were killed, including U.S. Ambassador Christopher Stevens.  Following the attack, on September 12, Secretary of State Hillary Clinton announced the death of Ambassador Stevens, and President Obama, joined by Secretary Clinton, denounced the attack from the Rose Garden at the White House.  On September 16, U.N. Ambassador Susan Rice, appeared on virtually all of the Sunday TV talks shows in Washington, and provided the Obama Administration’s analysis of the situation.

For example, on CBS’s “Face The Nation,” Rice responded to a question of whether the attack was preplanned as follows: “We’ll want to see the results of that investigation to draw any definitive conclusions,” Rice began. “But based on the best information we have to date, what our assessment is as of the present is in fact what began spontaneously in Benghazi as a reaction to what had transpired some hours earlier in Cairo where, of course, as you know, there was a violent protest outside of our embassy . . . sparked by this hateful [anti-Muslin] video. But soon after that spontaneous protest began outside of our consulate in Benghazi, we believe that it looks like extremist elements, individuals, joined in that—in that effort with heavy weapons of the sort that are, unfortunately, readily now available in Libya post-revolution. And that it spun from there into something much, much more violent . . . .  We do not have information at present that leads us to conclude that this was premeditated or preplanned.”

When Rice was asked whether or not al Qaeda was involved, she replied: “Well, we’ll have to find that out. I mean I think it’s clear that there were extremist elements that joined in and escalated the violence. Whether they were al Qaeda affiliates, whether they were Libyan-based extremists or al Qaeda itself I think is one of the things we’ll have to determine.”

Republicans have taken exception to everything that happened in Benghazi by accusing Susan Rice, Hillary Clinton,, and President Obama each of lying, and the Obama Administration of failing to protect the Americans stationed at Benghazi. Republicans  sought initially to make this an issue in the 2012 election, with Mitt Romney accusing President Obama of refusing to describe it as a terrorist attack on September 12th, when, in fact, the President had done exactly that, which resulted in Romney’s eating crow for his false public accusation during the presidential debate.

Most recently, the Republicans have held hearings for Benghazi “whistleblowers“ before the House Oversight Committee chaired by Darrell Issa (R-CA), who has been searching for years for Obama scandals.  The news media largely ignored the hearings, which were something of a non-event. Notwithstanding months of effort, accompanied by a full-throated chorus of conservative media outlets, to make this a major scandal, Bill Maher spoke for millions of Americans when he recently said, “I still don’t understand what the scandal is.” Understandably, President Obama recently called the GOP Benghazi focus “a sideshow.”

Viewing this situation analytically, Benghazi is a political scandal ONLY for Republicans. In truth, it is a scandal in search of an offending underlying transgression.  Actually, it is more like a GOP conspiracy theory, which keeps evolving as questions are answered by claiming new purported wrong, than it is like a scandal. The GOP motive appears to be to somehow muddy and seeks to harm Hillary Clinton since it happened on her watch as Secretary of State.  In fact, I think the GOP is doing Hillary a favor by taking the air out of this issue if she decides to run for president in 2016, because you cannot create a scandal when no one can figure out what the wrongdoing was, and simply inventing new alleged wrongdoings, which distort the truth and are based on the same basic facts, only works for a short time.

The legs on this so-called scandal have been buckling and wobbling for months.  I expect the Republicans to soon give it up, since they now have what they believe are better scandals with which to work, particularly the scandal regarding purported abuse of power by the Internal Revenue Service (IRS), an issue all Americans understand.

The Scandal Relating to IRS Targeting of Conservative Organizations

On May 17, 2013, the acting commissioner of IRS, Steve Miller, and the Inspector General of the Treasury Department, Russell George, who recently issued an investigative report, are/were scheduled to testify before the House Ways and Means Committee.  They will address the scandal that erupted a week earlier, when Lois Lerner, the director of the Exempt Organizations Division of the IRS, let slip the fact that the IRS had targeted conservative organizations seeking 501(c)(4) exemption from the tax code as “social welfare” organizations.  Within hours, it exploded into a scandal.

Lois Lerner, a career federal employee and attorney, is not a person who would be cast as the catalyst of an IRS scandal.  She became the face of this scandal when she was answering questions at a meeting in Washington of the tax section of the American Bar Association (ABA).  It appears that she did not plan to create the outcry that has resulted, although some have questioned if she made her comment in anticipation of the critical report that was being prepared by the Treasury Department’s Inspector General.

Given the disastrous conference call that followed her comments at the ABA meeting, I doubt that she planned to cause the stir that has resulted.  While she is an experienced and capable upper mid-level federal employee, she was over her head in dealing with the news media and the public alarm—and ensuing scandal—that her comments at the ABA provoked.

The IRS is an agency all Americans love to hate.  It has had a long history of scandals, although none of recent vintage. The underlying transgression of treating any taxpayer unfairly, and with political bias, is something that is widely understood and inherently offensive.  Not surprisingly, it is believed by many—though the facts are still unclear—that this activity was widespread and went beyond the Exempt Organizations Division operations in Cincinnati, Ohio, as some claim. This matter will be sorted out in the Congressional hearings.

This is not, however, as claimed by conservative commentators like George Will, the equivalent of the activities for which Richard Nixon was impeached, and the 1974 House impeachment inquiry did not know a fraction of what Nixon was doing. (For a book-in-progress, I am listening to Nixon’s once-secret recordings, hundreds of conversations relating to Watergate that no one has bothered to transcribe, or maybe even listen to.  Nixon’s demands to use the IRS against his perceived enemies were stunning, far beyond anything I even suspected when I was working for him.  He only spoke with his two top aides, H.R. Haldeman and John D. Ehrlichman, on this subject—and he wanted to use the IRS as a weapon against those who caused him political problems.)

President Obama is actually fortunate that the Treasury Department’s Inspector General (these IG offices throughout government are post-Watergate reforms) had received complaints from Members of Congress about the granting of 501(c)(4) exemptions, and had undertaken an investigation, which partially leaked after Lois Lerner made her comments about targeting conservative organizations, but has now been released in full. That report indicates that the targeting of conservative groups was an internal IRS decision—mismanagement of the exemption procedure, according to the IG. It was  not a result of the Obama White House’s calling for it.

While Republicans will undoubtedly pound the scandal drum about this activity to make it seen to be more than, in fact, it was, this too will not be a significant scandal.  The underlying transgression does not appear to have been motivated by partisan politics or pressure, but rather by ineptitude by lower IRS employees, and by IRS management’s failing to correct a conspicuously bad practice.  And Attorney General Eric Holder’s FBI investigation of IRS, in which he has made clear that if any IRS officials gave Congress false information then they will be held responsible, along with the resignation of the Acting Commissioner, is taking the oxygen out of this scandal quickly.

The Scandal Relating to the Justice Department’s Subpoenaing AP Telephone Records

The fact that the U.S. Department of Justice secretly obtained the telephone toll records of reporters and editors of the Associated Press (AP) in connection with its investigation of a serious leak of national security information has angered both the left and right, and given the fact that this scandal involves the news media, they are outraged on both left and right.  Nonetheless, this is not really a scandal for there does not appear to be an underlying transgression by those in government.  Rather, the scandal simply illustrates that newspeople are very unhappy with the policy of the Obama Administration in prosecuting leakers.

This story broke when the AP reported that it had been informed by the Justice Department that it had secretly obtained AP phone records (listing incoming and outgoing calls) of several AP reporters and editors who were involved in a May 7, 2012 story about a CIA operation that thwarted a terror attack in Yemen.  The head of the AP sent a letter to Attorney General Eric Holder claiming that the government had sought and obtained information far beyond anything that could be justified by any specific investigation, and demanded the return of the phone records and the destruction of all copies.

Later reports have revealed that the records were obtained after a federal judge approved a subpoena, which was sought pursuant to Justice Department regulations that apply in such First Amendment-sensitive cases, and was approved by Deputy Attorney General James Cole, a seasoned career attorney who runs the day-to-day operations of the department.  There is no underlying transgression, no wrongdoing by those conducting the investigation. Rather, there is displeasure among the news media with Obama’s policy of going after those who leak national security information—which they only have access to because they have pledged that they will not provide it to unauthorized parties.

Ironically, many of the members of Congress who are now complaining about the subpoena had earlier called for the Justice Department to conduct an investigation of this leak—which made President Obama look good in breaking up an Al Qaeda plot to kill Americans before the elections—because they believed that the Obama White House was behind leaking the information before the election to help the president. Now they are complaining about that investigation, and an unhappy news media is delighted to cover them.

All presidents are troubled by national-security leaks.  No president can govern in a fishbowl, but there is a delicate balance to be struck in dealing with such leaks.  The underlying statute prohibiting leaks—the Espionage Act—was written in 1917, and while it is broad enough to cover news outlets that publish leaked information, no president has gone beyond those who leaked the classified information in the first place.  Congress has clearly authorized all presidents to pursue leaks of classified information.   In seeking the records of the AP in the investigation that has caused the current outrage, the Obama Justice Department has not gone nearly as far as it might, and called the AP’s editors and reporters before the grand jury to demand that they reveal their source(s) or be jailed for contempt of court.  So using a court-approved subpoena is hardly an overreach.  In addition, every reporter in Washington who covers national security stories knows that you do not talk to leakers on the telephone, or in places where there are surveillance cameras.

In sum, this scandal is all mediation and no underlying transgression.

The Bottom Line on Obama’s Scandals

If these three purported scandals are handled properly, President Obama should have no problem with dispatching them.  How he proceeds from here will determine if he is even tinged by them at all.

This is the era of children’s liberation from tyrannical treatment.  Child-sex-abuse victims have been coming out of the woodwork, and demanding the justice that has been long delayed, but truly owed.  First, the Roman Catholic Church was on center stage, but now it has had to make room for virtually every other religious organization, including the Jehovah’s Witnesses, Orthodox Jews, and the Church of Jesus Christ of Latter-Day Saints.  In each institution, pedophiles were harbored.  Religious groups are not alone, of course, with more recent additions to this list of shame including the Boy Scouts; prep schools like Horace Mann, Poly Prep, the Landmark School, the Brooks School, and Deerfield Academy; and, of course, Penn State.

On the heels of these institutions’ scandals, which are finally in the spotlight, the vast swath of abuse that occurs in homes across the country is now beginning to emerge into public view.  We have let our children down in every scenario, and, sadly, even the family courts too often hand children right back to the very person who abused them.  We have much to do.  Today, though, I will focus on abuse in sports.

Each of the institutions that I listed above has harbored adults who made the lives of children miserable, either through abuse or by tolerating the abuse.  The spotlight has now turned on not just the sexual abuse that we have ignored for decades, but also the emotional and physical abuse suffered by children, right into college, at the hands of coaches, with Rutgers the perfect example of the tyranny of adults.

Mike Rice’s Abusive Behavior Is Far From an Isolated Example

Rutgers basketball coach Mike Rice was finally fired after he was caught on-camera berating and throwing basketballs at his players.  It was an uncivilized and childish display of temper and he deserves the public disapprobation that he received for it, in addition to the loss of his job.  The sad truth is that there are many coaches across the United States who are just as emotionally and physically abusive as Rice, and, in the absence of a video, the athletes are simply tolerating it in order to stay on the team (and keep their scholarships).  Or, in some circumstances, athletes are being forced to give up their beloved sport in order to escape the mistreatment.

Just as there are many fine priests who do not deserve to be lumped in with the priest predators, there are also many coaches who are upstanding men (and women) who do wonderful things for our children.  But, as in the priestly universe, the good ones must take a stand against the bad ones in order to avoid becoming negatively labeled, or, worse, legally liable, themselves.

Abuse in the sports context ranges from sexual abuse, as we have heard from Olympic and many other athletes, to emotional and physical abuse.  Coaches are not gods, but rather, fallible humans, and they can be vicious, racist bullies, or the facilitators of players’ bad behavior.  As the mother of athletes, I have witnessed coaches engage in repetitive, damaging emotional abuse—including one coach who let his own son physically threaten other players, and another who stood by while team members bullied their teammates.  Then there is the Ivy League coach who asked a Chinese-American athlete if he needed to turn the ball into “white rice” to get her to pay attention to it, and then told these highly skilled athletes to “quit thinking like girls” or they would never win.  And there is also the high- school club coach who called teenage girls (who were in perfectly good shape) “fat cows,” and physically yanked them off the field when they did not play to the coach’s expectation.  One player explained her abusive coach like this: “We know that if he’s constantly screaming at us, he thinks we are good players.  If he ignores us, that means we are useless players.”  When these incidents happen at every practice and every game, you have a pattern of denigration that no player should have to endure, and no parent should have to tolerate.

Rutgers’ Rice is the tip of the iceberg.  As we saw at Rutgers, the abusive coaches retain their jobs because the Athletic Directors turn away, while university and sports- organization heads don’t take the abuse complaints seriously.  Unlike with Rutgers, for most athletes, there is no video documentation, so the cruelty continues under the radar, with no solution for the athlete who loves the sport or needs the scholarship, or both.

As in the church and school cases, this abuse scenario is rooted in the power differential between the child and the coach.  Even an older child, one in college, is at a distinct disadvantage vis-à-vis his or her coach.  For the scholarship athletes who cannot pay for college without their athletic scholarships, their very education (and apprenticeship in the sport, for those dreaming of the pros) rests on the coach’s continuing support of the athlete.  And even the non-scholarship athlete’s coach holds tremendous power over the athlete, if they want to play, and play a particular position, and learn the sport from someone knowledgeable.

Reimagining Sports Without Abuse

The tropes of sport need to be reconfigured.  The model of the Marine Corps Staff Sergeant screaming at recruits is outdated and abusive.  In this context, “taking one for the team” has an ominous underside.  With the power they are given, the tyrant coaches get carte blanche to impose their will and their tantrums upon those they control.

At least with sexual abuse, it is plainly illegal and has been for a very long time.  So there are parameters that institutions should have honored, even if many did not.  Part of the problem in sports, in contrast, is that there are few and inadequate codes of conduct in place.

Coaches are not the only bad actors in sports, of course.  There are unchecked bully athletes galore.  The Utah soccer player who recently hit and killed a referee proves the need to get serious about improving our sports culture, and quickly.  It is time to make the principles of good behavior, and the penalties for bad behavior, explicit.

A Model Code of Conduct for Coaches and Athletes Is Urgently Necessary

To the credit of some sports, they are working to ensure they will not be the next Penn State or USA Swimming, but others are cowering, fearing that if they adopt new standards, they are conceding the inadequacy of their prior standards.  That is the reasoning that locks institutions into cycles of abuse, and future liability.  Drawing on a number of existing codes and some that are in process, I have compiled and drafted a Model Code of Conduct for sports.

I believe that there are three elements that are absolutely essential if we are to change the culture of abuse in sports, and which are missing from many current codes.  Of course, criminal background checks, training of all coaches and staff on identifying the signs of abuse, exclusion of coaches who have been identified as sexual abusers, and toll-free hotlines for reporting abuse are an absolute minimum.  And everyone in the organization at issue, whether administrator, coach, or athlete, should have an obligation to report abuse to the organization, on the toll-free hotline.  Failure to report should be treated the same as committing the offense would be, for silence and secrecy are the abuser’s best friend.

The Meaning of Good Sportsmanship

Here are the three other principles that need to be observed, as well.  First, let’s remind each other what “Good Sportsmanship” truly is.  This is an old-fashioned concept that got lost in the charge to make each of our kids year-round specialists.  Sports are breeding grounds for violence, abuse, and immoral conduct without an ethic of sportsmanship.  Here is my definition:

Good sportsmanship is demonstrated when teammates, opponents, coaches, and officials all treat each other with respect, dignity, and fairness.  They all understand that they each have an individual function on perform the field—a “job,” as it were — and that it’s the interaction of these jobs that makes for a successful contest.  Players compete and communicate, coaches direct and encourage, and referees officiate to keep the game fair and safe; for a contest to run as it should, they should not cross the lines into each other’s area of responsibility.  Players learn the basics of good sportsmanship from the adults in their lives, especially from their parents and their coaches.  Players who see these adults behaving in a sportsmanlike way gradually come to understand that the real winners in sports are those who know how to persevere and to behave with dignity—whether they win or lose a game or a call, and whether or not they prevail in any other situation that occurs on the field.

Good sportsmanship requires that everyone play fair.  When a coach throws a playoff game to ensure a more desirable seed in a national tournament, he or she should be punished for lack of sportsmanship and a betrayal of all that is good in sports.  And when a player throws a punch at a referee or umpire, he should be removed immediately.

The Need to Follow Anti-Abuse Codes

Second, bans on emotional and physical abuse need to be explicit. Here is an example of such bans and their key definitions:

1. Physical Abuse: Contact or non-contact conduct that results in, or reasonably threatens to, cause physical harm to an athlete or other sport participants. Physical abuse is also any act or conduct described as physical abuse or misconduct under federal or state law (e.g. child abuse, child neglect, assault). Exception: professionally accepted coaching methods of skill enhancement, physical conditioning, team building, appropriate discipline, or improving athlete performance that are appropriate to the sport will not be considered physical misconduct.
2. Emotional Abuse: A pattern of deliberate, non-contact behavior that has the potential to cause emotional or psychological harm to an athlete. These behaviors include verbal acts, physical acts, and acts that deny attention or support. Emotional abuse also includes any act or conduct described as emotional abuse or misconduct under federal or state law (e.g. child abuse, child neglect). Exception: professionally accepted coaching methods of skill enhancement, physical conditioning, team building, discipline or improving athletic performance will not be considered emotionally abusive.
   1. Verbal Acts: A pattern of verbal behaviors that (a) attack an athlete personally (e.g., calling them worthless, fat or disgusting) or (b) repeatedly and excessively yelling at a particular participant or participants in a manner that serves no productive training or motivational purpose.
   2. Physical Acts: A pattern of physically aggressive behaviors, such as (a) throwing sport equipment, water bottles or chairs at, or in the presence of, participants; or (b) punching walls, windows or other objects.
   3. Acts that Deny Attention or Support: A pattern of (a) ignoring an athlete for extended periods of time or (b) routinely or arbitrarily excluding participants from practice.

The Key Need for a Way to Report Abuse

Third, every sport needs an avenue for an athlete to report abuse safely and confidentially, without fear of retaliation, outside the organization.  This is a pathway separate from the hotline that is needed for reporting abuse within the organization, which I described above.  These calls need to be directed to an entity, e.g., a psychologist or a nonprofit that specializes in such issues, that is not accountable to the organization or institution and is staffed by psychologists who have the expertise to take such reports, and who are mandated reporters of abuse to the authorities.  Yes, this may have some additional costs, but without having a neutral recipient for the information relating to abuse, athletes simply won’t be protected, according to one of the experts in this arena: Katherine Starr, an Olympic swimming athlete and a victim of abuse, who started safe4athletes.

It would be nice if we only permitted civilized adults to be coaches, but that standard is perhaps too lofty, and also too vague.  It is particularly inadequate in a culture that, until Penn State, included the “value” of winning at all costs.  We need codes of conduct, and we need to rid our sports of the tyrants, the bullies, and the pedophiles, even when those coaches are wildly successful.  There are some costs that are just too steep to pay.

We also need to empower athletes.  Bring on the cameras!

The U.S. Supreme Court recently decided the case of Missouri v. McNeely.  In McNeely, a majority of the Court rejected the idea of a “per se” exigent circumstances exception to the warrant requirement for blood tests in drunk-driving cases.  That is, the Court held that police may not automatically order a blood test on someone whom they have lawfully arrested for DWI (driving while intoxicated) but must instead seek a warrant, absent a reason to skip the warrant—a reason that goes beyond the simple fact that blood-alcohol-concentration diminishes with the passage of time.

The Court held that police must conduct a “totality of the circumstances” exigency analysis to determine whether seeking a warrant prior to performing a blood test would “significantly undermin[e] the efficacy of the search” in an individual case.  In this column, I will consider whether the Court’s ruling makes sense, in light of what generally happens in DWI cases. I will also discuss an alternative approach proposed by the Chief Justice.

Why Get a Warrant?

To determine whether the Court was right to apply the warrant requirement to BAC (blood-alcohol concentration) testing, it may be helpful first to consider the source and purpose of the warrant requirement.  The Fourth Amendment’s text provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”  The text does not itself require a warrant, but it does go on to say that warrants may issue only in the presence of probable cause, among other things.  Notwithstanding the lack of a textual warrant requirement anywhere in the Constitution (and the similar lack of a textual requirement for probable cause as a prerequisite to a search), the U.S. Supreme Court has interpreted the phrase “unreasonable searches” to require—in the garden-variety case—that police have probable cause, and that they obtain a warrant prior to performing a search.

The rationale for requiring a warrant is that it permits a neutral and detached person, one who is not engaged in the “often competitive enterprise of ferreting out crime,” as the Court has put it, to take a sober second look at the evidence that has aroused a police officer’s suspicion.  The magistrate who reviews the warrant application can then determine, without possessing the zeal of someone who spends most of her time tracking down criminals, whether there really is probable cause, as the officer believes there is.  Though the word “seizures” appears in the same phrase in the Fourth Amendment as the word “searches,” the Court has been more generous in permitting police to skip the warrant in the case of seizures than it has in the case of searches.

The Typical Drunk-Driving Arrest Scenario, and the Facts in McNeely

This background all becomes relevant to the Court’s ruling when we turn to the drunk-driving arrest scenario.  Typically, such an arrest occurs when police observe a pattern of driving that suggests intoxication, including weaving or other demonstrated incompetence at the wheel.  Based on their observations of such driving, which amount to “reasonable suspicion” of DWI, police may pull over or temporarily “stop” the drunk-driving suspect for further investigation.

At this stage, police may ask the suspect questions, look into the suspect’s eyes (for tell-tale signs of intoxication), sniff at the air near the suspect (for the stink of alcohol), and perhaps ask the suspect to walk a straight line or otherwise display the sort of coordination that most sober people exhibit.  The officer may also ask the suspect to take a breathalyzer test.  If the suspect’s behavior, appearance, fragrance, and/or breathalyzer results (or the refusal to take a breathalyzer test) give rise to probable cause to believe that the driver is intoxicated, then the officer may arrest him for DWI.  An arrest is a “seizure” for Fourth Amendment purposes, but under a case called United States v. Watson, it does not require a warrant when it occurs in public.  Police were therefore able to arrest Tyler G. McNeely for DWI, based on probable cause, without first seeking a magistrate’s neutral review.

Once they arrested Mr. McNeely, police brought him to a nearby hospital and asked a lab technician to take a blood sample for a BAC test, over McNeely’s protests.  The test results showed McNeely to be at .154 percent, well over the legal limit, and he was subsequently charged with DWI.  In the trial court, McNeely moved to suppress the BAC test results, arguing that police performed an unreasonable search on him by testing his blood without a search warrant and without his consent.  The trial court agreed and suppressed the evidence, and the State Supreme Court affirmed the trial court’s decision.

The Exigent Circumstances Exception

Though the Court ordinarily requires police to obtain a warrant before performing a search, it recognizes exceptions to the warrant requirement for a variety of situations that can confront the police.  One important exception exists for “exigent circumstances,” which are emergency situations that demand immediate action.  When police, for example, are in “hot pursuit” of a fleeing felon who runs into a house, they face an “exigent circumstance” that excuses the ordinary requirement that they obtain a warrant before entering a private home.

One of the exigencies that the Court has recognized as pertinent to whether police may proceed with a search in the absence of a warrant is the risk that evidence could be destroyed in the time it takes to procure a search warrant.  Because of this risk, if police have probable cause to believe that a suspect who is located inside his home (and who knows that police are right outside the door) is in possession of drugs, police may be able to enter immediately, without a warrant.  That is because waiting for a magistrate’s approval would give the suspect the opportunity (and motive) to destroy the evidence in his possession.  The State of Missouri, in McNeely, argued that whenever police have a drunk-driving suspect in custody, they face an exigent circumstance of this sort: With every passing minute of blood-test delay, the suspect’s blood-alcohol-concentration—the best evidence of DWI—diminishes.

The Supreme Court rejected the State’s argument for an across-the-board exigency exception for blood tests in drunk driving cases, ruling that while the passage of time does reduce the BAC of the suspect, it does not necessarily and always present an emergency.  Given that police can obtain warrants electronically and otherwise, in a relatively rapid manner, the Court noted, getting a warrant is often a practical option, even in a DWI situation.  Since a warrant is usually required in the absence of an exigency in a particular case, the Court held in McNeely that the same approach should apply to drunk-driving arrests:  if police can show a particular exigent circumstance (beyond the always-present ongoing metabolization of alcohol by a suspect), judged by the “totality of the circumstances,” then they may test his blood without a warrant.  Otherwise, a warrant will be required.

The Problem With the Majority’s Approach

There is a part of me that finds the majority’s approach understandable and even reassuring.  In a time in which the Court seems to be regularly announcing inroads on existing constitutional protections, the McNeely decision holds the line and says that we will not have an across-the-board exception to the warrant requirement for a particular class of criminal evidence:  BAC of drunk drivers.  Rather, to rely on “exigent circumstances,” police must demonstrate a genuine emergency that they confront in the individual case, regardless of whether such cases “in general” create an exigency.  As a result of this decision, moreover, it seems that people who could otherwise be wrongfully subjected to unjustified blood tests might be spared, because a magistrate can reject the officers’ potentially overzealous perceived need to collect evidence.

The reason, however, that I am ultimately unconvinced by the majority’s analysis turns on the nature of DWI evidence.  As mentioned earlier, the best evidence of DWI is the result of a blood-alcohol test taken as close to the time of driving as possible.  As everyone acknowledges, a person’s blood-alcohol-concentration steadily diminishes over time as soon as the person stops drinking.  Therefore, in every case in which a suspect is actually guilty of DWI, evidence of guilt is literally vanishing with whatever time it might take for an officer to seek and obtain a search warrant.

The vanishing of evidence may not matter, in some cases, because the suspect’s BAC is so high that it will continue to exceed the legal limit even after whatever delay is occasioned by seeking a warrant.  But a police officer arresting a suspect for DWI is not in a very good position to assess whether that is true in a particular case.  And unlike the usual exigency context in which a suspect, alerted to the arrival of police, might destroy evidence of drug possession (because he has the opportunity and motive to do so before a warrant issues), the drunk driver has no choice but to destroy evidence, because his liver detoxifies his blood automatically, without any voluntary input from him.

Justice Thomas’s Dissent

Furthermore, as Justice Thomas notes in his dissent, even if the suspect remains drunk enough for a conviction at the time of the warrant-authorized BAC test, most states have heightened penalties for the driver whose blood alcohol level is .15% or above, which is nearly double the legal limit of .08%.  A short delay in a blood test could therefore mean the difference between proving a BAC of over .08% and proving one of over .15%, a high BAC that would permit more serious punishment.  There is, of course, no way for a police officer arresting a DWI suspect to know whether or not the suspect’s current BAC is on the verge of dropping below .15%.

Justice Thomas offers a useful and witty hypothetical example to illustrate the exigency that police face in DWI cases.  Imagine that police see an individual worker carrying bundles out of a warehouse and throwing each bundle into a large bonfire.  Assume that the police have probable cause to believe that the bundles contain marijuana but that there is only one worker, so police expect it to take hours for all of the bundles to be destroyed.  Justice Thomas observes that police would be able to search the warehouse without a warrant, based on the exigency posed by the imminent destruction of evidence.

In Justice Thomas’s scenario, it would be absurd to suggest that police must seek a warrant because the delay involved in seeking a warrant might still leave some of the bundles intact, since the worker burning the bundles is operating by himself.  For similar reasons, Justice Thomas contends, the fact that some level of alcohol might remain in the suspect’s blood even after a warrant-seeking delay, does not alter the fact that the suspect’s diminishing blood-alcohol-concentration creates an exigency justifying an immediate blood test.  Officers need not countenance the destruction of evidence just because there might still be other undestroyed evidence left behind.

Chief Justice Roberts’s Elegant Compromise

Chief Justice Roberts, in an opinion (concurring in part and dissenting in part), joined by Justices Breyer and Alito, arrives at what I think is a smart and effective solution to the DWI-exigency problem.  The Chief Justice points out that ordinarily, an exigent circumstance offers the police an immediate opportunity for a search.  For example, a police officer with probable cause for a search might be standing at a suspect’s front door, knowing that the suspect is aware of the officer’s presence and that the suspect has motive and opportunity to destroy the drugs in his possession.  Only by entering the house immediately can the officers prevent the destruction of evidence.

In the case of a drunk driver, by contrast, officers typically cannot perform an immediate search, even though the BAC level is diminishing.  Instead, police ordinarily must call upon medical personnel, present at a hospital, to draw the blood (rather than drawing it themselves at the scene).

This distinction between ordinary searches and blood tests is relevant in McNeely, because seeking a warrant, in the latter case, does not necessarily delay the blood test.  In some cases, a ride with the suspect to the nearest hospital will take the same amount of time (or more time) than the simultaneous acquisition of a warrant (by telephone or through other available electronic means).  In such cases, police can obtain a warrant and also order blood collection as soon as someone qualified is available to draw the blood.  And when they can do so, the Chief Justice says, they should do so.  After all, review by a detached and neutral magistrate is presumptively required by the Fourth Amendment case law.

Chief Justice Roberts is realistic about the uncertainties in a DWI arrest situation.  Police may believe that getting a warrant will take longer than a trip to the hospital for a blood draw.  If their belief is reasonable, says the Chief Justice, then they do not need to seek a warrant at all.  Furthermore, if they do make an attempt to get a warrant, but the magistrate has not yet reviewed the warrant application by the time a medical technician is available to draw blood, the officers can go ahead and order the BAC test, rather than waiting for the magistrate’s decision and thereby delaying the test:  “If an officer could reasonably conclude that there is not sufficient time to seek and receive a warrant, or he applies for one but does not receive a response before blood can be drawn, a warrantless blood draw may ensue.”

The Chief Justice’s solution would work well, because it properly recognizes that any delay in the blood test will result in the loss of evidence.  At the same time, his opinion accommodates the majority’s concern, and it acknowledges that seeking a warrant in these circumstances does not always occasion a delay in the search.  In addition to addressing the problem effectively, this approach also gives police guidance about what to do when they arrest a drunk driver.  By contrast, the majority’s approach offers officers virtually no guidance at all, but states only that “[i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so” (emphasis added).  Such a vague directive, perhaps ironically, may significantly undermine the efficacy of the majority’s opinion.

Rabbi? Priest? Imam? Justice of the peace? These are the usual suspects with authority under state marriage laws to preside over wedding ceremonies.  Should a minister ordained online with the click of a button be added to the list? Whether ministers ordained by the Universal Life Church (“ULC”), an online ministry with more than 20 million ministers, can lawfully preside over weddings is a recurring question in lawsuits.

In a recent opinion, in Oswald v. Oswald, an appellate court in New York suggested that a ULC marriage was valid.  This might not seem surprising, but it departs from three other cases in New York that have held the opposite, one of which was a fellow appellate court.  In this column, I’ll explain the new ruling and the split of opinion that New York law now reflects.

Oswald v. Oswald: Were They Ever Married?

On October 29, 2005, Henry and Victoria Oswald were married.  The ceremony was performed by a ULC minister, in Washington County, New York.  Three days before the wedding, the parties signed a prenuptial agreement that was, like most such agreements, to take effect “only upon the solemnization of [the] marriage.”  The agreement, again like most, purported to fix the parties’ financial obligations should the marriage end in divorce.

Five years later, Henry filed for an annulment—a declaration that the marriage never validly existed.  His claim rested on the assertion that the minister who presided over their wedding did not have the authority to do so.  He relied on prior precedents in New York that had held that such ministers do not meet the legal definition of clergy, and the Universal Life Church does not meet the legal definition of a church.  On the basis of these precedents, the trial court granted his motion for summary judgment that the prenuptial agreement was unenforceable because the marriage never validly existed.  The wife appealed, which led to the ruling cited above.  Were the Oswalds ever legally married?

Marriage Law and the Role of Officiants

State marriage laws require that marriages be solemnized and offer parties a choice of religious and secular officials with authority to preside over a wedding.  Marriage law imposes certain prerequisites to a valid marriage.  First, the parties must be eligible to marry in general (not lacking in mental capacity, of sufficient age, not already married to someone else, and so on) and eligible to marry each other (not closely related by blood, e.g.).  Second, the parties must appear in person at the clerk’s office to apply for a marriage license and then wait an assigned period of time, usually a few days at most.  Third, the marriage must be solemnized in some kind of ceremony (no specific form required) at which an officiant with the authority to preside over the wedding elicits the consent of both parties (“I do”) and declares them married in the eyes of the state (“I now pronounce you . . .”).  The officiant then obtains signatures from the parties and witnesses (if required by the state), certifies that the ceremony had all the requisite components, and files the paperwork with the clerk’s office that issued the license.  (For the ten or so states that allow common-law marriage, the second and third requirements are lifted in favor of a private agreement to marry.)

In the typical marriage code, the state delegates authority to make sure the legal requirements are met to private officiants; it allows them to be the eyes and ears of the state.  This system reflects the complicated religious/secular marriage traditions in the United States.  A legal marriage is a civil status.  The government grants rights to, and imposes obligations on, married couples; it also regulates entry and exit—who can get married and how, and whether and on what terms a couple can get divorced.  But many people feel that marriage is also, or even primarily, a religious institution.  They want to get married in a church or other place of worship, with the official legal requirements enmeshed in a religious ceremony or mass.  The state defers to these wishes, by allowing a religious ceremony to fulfill the secular, civil legal requirements.

Who Is a “Minister”?  What Constitutes a “Church”?

All states allow some array of civil officers to solemnize marriages and some array of religious figures to do so, too. State statutes generally bestow the power to solemnize on “clergy,” referring to a category of persons that states define differently.  The most common definition of “clergy” or “minister” is an individual who has been ordained by a recognized religious body and has a congregation or following.

The very idea of something like the Universal Life Church is confounding to a traditional definition of clergy.  The ULC is a non-denominational church that was founded in Modesto, California in 1962 and claims to have ordained more than 20 million ministers.  The ULC joins together ministers who “come from all walks of life and spiritual traditions”; their “common thread” is “adherence to the universal doctrine of religious freedom: Do only that which is right.”  There is no set doctrine for ministers to accept, nor is there a mandate that ministers must believe in God.  The ULC advocates “religious freedom,” and the pursuit of “spiritual beliefs without interference from any outside agency, including government or church authority.” Ordination is free and is accomplished in seconds through a click on the website.  The click is followed by online approval and the offer to buy everything from laminated credentials to a special clergy-parking placard.

In several cases, spouses have argued that their marriages were invalid because the wedding was solemnized by a ULC minister (or other minister ordained online).  The legal validity (or lack thereof) of marriages officiated by ULC ministers, or other similar churches, varies by jurisdiction.  In Mississippi, the state’s highest court has ruled that ULC marriages are valid because the church is “enough of a religious body,” and one of its ministers is “enough of a spiritual leader.”  The Virginia Supreme Court, however, held that the authority of a group of ULC ministers was rightfully rescinded because they did not meet the state law definition of clergy.

A Trilogy of New York Cases on ULC Ministers: ULC Marriages are Invalid

The first challenge to the validity of a ULC-solemnized marriage took place in New York in 1972.  In that case, Ravenal v. Ravenal, Richard Ravenal sought an annulment of his marriage to Cathy on the grounds that the ULC minister who presided over their wedding did not have the authority to solemnize marriages under New York law.  The minister was a guitar-playing folk-singer, as well as a member, along with the parties, of an “encounter group.”

New York’s Domestic Relations Code provides that valid marriages may be solemnized by a “clergyman or minister of any religion.” The statute borrows the definition of clergyman from another provision of the code, which defines “church” to include both incorporated and unincorporated churches—the latter as a “congregation or society, or other assemblage of persons who are accustomed to statedly meet for divine worship or other religious observances. . . .”

A “clergyman” or “minister” is defined by the Religious Corporations Law to include “a duly authorized pastor, rector, priest, rabbi, and a person having authority from, or in accordance with, the rules and regulations of the governing ecclesiastical body of the denomination or order, if any, to which the church belongs, or otherwise from the church or synagogue to preside over and direct the spiritual affairs of the church or synagogue.”

The trial court in Ravenal concluded that the minister who presided over the marriage did not have the power to do so.  It looked to prior cases, which had established that the guarantee of free exercise of religion includes the “right to have one’s marriage solemnized by a minister of one’s own faith,” and that a minister need not necessarily be “ordained,” as long as he or she is “recognized by his church and congregation as a minister.”  Yet, the court held that a ULC minister does not meet the standard because it was not sure whether the ULC was a “religious denomination,” given the lack of any doctrine or standard set of beliefs.  The court also found no record of the church’s physical or corporate existence in New York.

The ease with which anyone could become a minister—and the sheer number of people who had achieved that status—cast doubt on the validity of the religion.  The court concluded that the ULC was “entirely nonecclesiastical and nondenominational.”  And, it held, the Ravenals’ officiant—whose authority, the court commented, “rests solely on his having obtained in the mail the card entitled “Credentials of Ministry”—did not qualify as a “clergyman,” particularly given the “absence of an actual church or stated meeting place for worship or any form of religious observance, presided over or directed by a person regarded by such a group as its minister.”

The question of the validity of ULC-solemnized marriages arose again twelve years later. In 1989, a group of ULC-ordained ministers sued the New York City clerk’s office for refusing to register them as officiants qualified to perform marriages.  (New York City is unusual in requiring officiants to register in advance, and, at the time this case was brought, it refused to register ULC ministers.  It has since changed its policy.)  The ministers lost their case.  In Rubino v. City of New York, a trial court in New York County found no violation of the First Amendment’s free exercise of religion clause in the clerk’s policy.  Beliefs, not conduct, are absolutely protected, and there is no free exercise right to perform marriages.  Nor is there anything in the constitution requiring the state to give effect to religious acts (i.e., by recognizing a marriage solemnized by a religious official).  Moreover, the city clerk’s office’s policy was not arbitrary, given the very real possibility that ULC marriages might be declared invalid by courts.  The government had a strong interest in protecting the validity of marriage and in protecting individuals from “the possibility that those marriages might be declared invalid or annulled” because of the officiant’s religious credentials.

The third case in the New York trilogy came from an appellate court.  In Ranieri v. Ranieri (1989), the court held that a marriage solemnized by a ULC minister was void.  The couple had signed two prenuptial agreements that would be nullified if the marriage never validly existed (which is the effect of a decree of annulment).  Relying on the two trial court opinions in New York, as well as opinions from the highest courts in North Carolina and Virginia, the appellate court held that, under New York’s relatively restrictive definition of church and clergyperson, a ULC minister was not authorized to perform weddings.

The Recent Ruling in Oswald v. Oswald: A Different Tack

In this case, as in Ranieri, the enforceability of a prenuptial agreement turned on the validity of the underlying marriage.  The trial court followed the earlier precedents and held the marriage invalid because it was solemnized by a ULC minister.  The appellate court, however, from a different “department” (jurisdiction) than the Ranieri appellate court, reversed the grant of summary judgment.  It did not definitively rule that the marriage is valid, but it held that the husband had not carried his burden at the summary judgment stage of proving that it was invalid without further factfinding.  On remand, the trial court could again find the marriage void—or valid.  But in the course of the ruling, the appellate court made clear that it was departing from the analysis and reasoning of the earlier cases.

First, the court noted correctly that it was not bound by an appellate court ruling from a sister department. It could thus disagree with the reasoning in Ranieri, a dispute that the state’s highest court could (and should) resolve.

Second, it found the plaintiff’s development of the factual record lacking.  At the summary judgment stage, a party must prove that there are no triable issues of fact, and that the legal issues can be fully resolved on the pre-trial record.  But here, the court found, the husband had failed to show that the ULC was the same organization it was almost twenty-five years earlier when the decision in Ranieri ruled it was not enough of a church to qualify under the New York statutory definition.  Open questions, in the court’s view, are whether the ULC has an “actual church or stated place of worship.”  The plaintiff alleged “upon information and belief” that it does not, but the court wanted more information.  The wife submitted an affidavit from the ULC swearing that it had “numerous places of worship throughout New York State,” and ULC’s website claims that “the communication and fellowship of our ministers is equal to the once a week sacramonious [sic] fellowship in some of our most segregated and elitist churches.”

Third, while the Oswald court pitched much of its opinion as dissatisfaction with the development of the factual record, it clearly disagrees on the merits with the rulings in the earlier cases.  It wrote, for example, that courts can rely only on the “application of neutral principles of law,” which, in this context, means it cannot “question the ULC’s membership requirements or the method by which it selects its ministers.”  A court can do no more than “determin[e] whether the ULC adhered to its own rules and regulations in selecting and ordaining the officiant as a minister.”

Moreover, it rejected the husband’s suggestion that the ULC could not qualify as a church under New York law because it professes no beliefs.  The court suggested that a court has no power to assess a church on this basis, beyond perhaps a determination that its self-characterization is made in good faith.  This raises the larger question whether the legislature should, when delegating authority to conduct a civil act to religious officials, have standards at all.  Is it the government’s place to decide who or what qualifies as a religion, a church, or a minister?

But the Oswald court then takes its analysis another step, into territory that is no better supported by the factual record than the plaintiff’s assertions are:

In some respects, the ULC conducts itself like more conventional churches and encompasses many of the same ideas and values that are present in traditional religions.  The ULC ordains ministers and, although ministers are not required to preside over a specific congregation or work within a physical church, the ULC encourages that practice.  Additionally, since the ULC’s formation in 1959, it has consistently advanced and advocated for its beliefs.

Conclusion

This recent ruling checkers the landscape on ULC marriages in New York, but, given the three cases finding them invalid, they are still legally questionable.  The Oswald court raises valid questions, but does not deal with the core problem that led to the three earlier rulings: the New York legislature has imposed a definition of church and clergy that the ULC does not seem to meet.

While the New York Court of Appeals (the state’s highest court) might weigh in this issue given the appellate split, the real remedy, if one is to be had, should come from the legislature.  The state treads on dangerous ground when it tries to pick and choose among “religions” or “religious officials” on the basis of their religiosity.

Without changing the general definition for other purposes, the legislature could expand the definition of officiants authorized to perform marriages.  It might do well to follow the model of some states, which allow laypersons to become a “minister for a day” for purposes of performing a wedding ceremony.  Given that civil marriage has no religious implications, there is no particular reason why the legislature should prefer clergy over other competent adults who can be trusted to follow the rules and fill out the paperwork.

Tennessee Attorney General Bob Cooper has called the state’s pending “ag gag” bill “constitutionally suspect,” and for good reason, as I will explain.

The bill, if passed into law, would require anyone who intentionally records images of animal abuse to submit their unedited footage or photos to law enforcement within 48 hours.

Cooper’s opinion, which was requested by Nashville Rep. Mike Stewart, may well influence Governor Bill Haslam (R)’s decision on whether to veto and/or refuse to sign the bill.  Let’s hope that after Cooper’s identification of the numerous constitutional problems with the bill as it now stands, it will be allow to fade away, as it should.

In my April 15th column here on Justia’s Verdict, I opposed ag-gag laws in general, for a number of reasons.  In this column, I’ll focus on the Tennessee ag-gag bill, in particular, which I also oppose.

The Tennessee ag-gag bill is simple and easy to understand: It requires anyone who intentionally records evidence of livestock or other animal abuse to turn over all the photographs and/or videos that he or she has taken to “law enforcement authorities” promptly—with promptly here meaning, as the bill specifies, within 48 hours, unless the evidence is collected on a weekend.

Those who flout the law are deemed to have committed a misdemeanor offense, and must pay a $500 fine.  Although “other animal abuse” is mentioned in the bill—perhaps to convince voters that this bill might protect their pets—this is really just another measure attempting to ensure that consumers do not learn what really goes on in the ugly slaughterhouses that provide their food.

More than 15,000 people have called or emailed the Governor about the bill, almost all of them urging that he veto it. And celebrity animal lovers such as Priscilla Presley and Carrie Underwood have raised the profile of the movement by joining the anti-ag-gag forces. (Although the Governor has said he won’t be swayed by celebrities’ opinions, some of his constituents surely will, and thus the Governor would be very ill-advised to ignore the celebrities’ views.)

In this column, I’ll comment on Attorney General Cooper’s well-placed qualms about the Tennessee ag-gag law, as he reported them to the Governor.

The Bill Is Underexclusive, and Therefore Discriminatory

To begin, Attorney General Cooper expressed the concern that the proposed legislation is so underinclusive that it “creates an issue about whether the government is disfavoring particular persons.” (Here, Cooper seems to be implicitly referring to animal-rights whistleblowers as the “particular persons” at hand.)

This group is clearly singled out. The proposed legislation, for example, reaches all those who record the abuse of livestock, but not, for example, all those who trespass, or take a job, simply in order to procure other types of damning recordings.  Why shouldn’t the proposed law extend to any whistleblower with a camera? There is no good answer.

Of course, all laws are underinclusive in some ways—and often in many ways. No law can address every topic, scenario, or far-flung hypothetical that falls within its scope. Accordingly, a law must be substantially underinclusive in order to be struck down by a court for that reason. But the Tennessee bill is, indeed, substantially underinclusive.

What would the bill look like if it were not so underinclusive?  It might look more like the approach that Tennessee takes when the abuse in question is inflicted on children, another potentially helpless group, rather than animals.  Tennessee’s child-abuse law requires the reporting of any information on child abuse. That law is very specific about what officials should be notified, and it grants confidentiality to those who are reporting abuse, in order to ensure that fear does not get in the way of justice.

If the animal-abuse laws were the same as the child-abuse laws, they would see animal rights activists as protectors, not violators.  Those who documented credible information of animal abuse would be treated as brave witnesses and legitimate private enforcers of the law, and not as criminals, as is too often the case now, across America.

The Bill Imposes a Prior Restraint on Speech

Attorney General Cooper also commented that the requirement that “any” recordings of livestock abuse must be turned over could be interpreted to mean “all” recordings, thus preventing the person who creates the covert video—and/or news media organizations—from subsequently publishing or otherwise using recordings.

On that interpretation, the bill very clearly violates the First Amendment.  The rule in America is that a speaker can first speak, or capture images, or write, and then pay the consequences if a court later determines that what was said was defamatory, or that images that were captured constituted a privacy or other violation.

The Bill Restricts Newsgathering

Attorney General Cooper also argued that the bill could be seen as a restriction on “newsgathering,” which some courts have held to be a necessary part of freedom of the press and free expression—and rightly so, since news obviously can’t be disseminated until it has been gathered.

Just a few decades ago, the idea that activists without press credentials or training could mount their own undercover investigations, and then claim First Amendment protection for the results, would have seemed dubious at best.  In the age of blogging, however, that idea is part of our daily reality. We are all the press, now.

The Bill Raises Extremely Troubling Fifth Amendment Self-Incrimination Issues

Finally, and perhaps most seriously of all, the Tennessee bill’s requirement that the images the activists procure must be turned over to the authorities could—in some situations—amount to the person who made the covert recordings’ revealing that he or she had engaged in illegal activity, such as trespassing, and thus would effectively violate the individual’s right against self-incrimination under the Fifth Amendment.

This last and most blatant problem with the bill, especially, shows that it was written with no respect for our Constitution at all. There’s only one appropriate response for a bill so callous toward animals, protesters, and the First and Fifth Amendments alike:  Veto it.

In my column today, I analyze an interesting case that a state Supreme Court will soon decide that illustrates, and has implications for, important national questions concerning the Establishment and Free Exercise clauses of the First Amendment.  In particular, the Kentucky case, Kant v. Lexington Theological Seminary, demonstrates the need for the U.S. Supreme Court to answer many of the key questions it left open in last year’s blockbuster ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, where the Court recognized a so-called “ministerial exception” enjoyed by religious institutions in employment discrimination suits.  I begin by providing background on the 2012 Hosanna-Tabor ruling, and then explain how the Kentucky courts thus far have understood and extended that ruling in the Kant dispute.

The Supreme Court’s Recognition of a “Ministerial Exception” to Employment Discrimination Law

The plaintiff in the Hosanna-Tabor case, Cheryl Perich, was a commissioned minister in the Lutheran Church-Missouri Synod who worked as a faculty member at a small church-operated K-8 parochial school in Michigan, where she taught, at various times, among other things, math, language arts, social science, gym, art and music.  She also taught a religion class four days a week; led students in daily devotional exercises and prayers; and led a school-wide chapel service a few times a year.  She later developed narcolepsy and informed her employer about her condition and, ultimately, her intention to assert her legal rights under the disability laws.  She was ultimately fired, and brought a charge with the federal Equal Employment Opportunity Commission (EEOC) against Hosanna-Tabor, claiming that she had been terminated in violation of the Americans with Disabilities Act (ADA).  The EEOC then filed suit against Hosanna-Tabor, alleging that it had unlawfully fired Ms. Perich in retaliation for her assertion of her ADA rights.

The U.S. Supreme Court ruled in favor of the school, holding that the Establishment and Free Exercise Clauses of the First Amendment bar employment discrimination suits brought on behalf of ministers against their (employer) churches, and that Ms. Perich fit the definition of “minister” for these purposes.  The Court began with a brief history of the Constitution’s religion clauses that highlighted the need for government not to interfere with important internal church processes.  It then discussed cases in which the Court had, under the Constitution, deferred to church tribunals that were established within a church’s hierarchy to resolve disputes over the proper use of church property or assets when disagreements between various individuals or factions within the church arose.   The resolution of these “quintessentially religious controversies,” the Court reminded, is “strictly a matter of ecclesiastical government” that is committed to “the highest ecclesiastical tribunals” and not something for the courts to undertake.  Relying on these principles and on the experience of lower courts in this realm, the Justices unanimously (albeit in three separate opinions) concluded that the First Amendment compels a “ministerial exception” to employment antidiscrimination laws that precludes the application of these laws to claims concerning the employment relationship between religious institutions and their ministers.

The Kant Lawsuit

The Kentucky case now pending was filed by Laurence Kant, who was formerly employed as a tenured faculty member at the Lexington Theological Seminary (LTS).  LTS is affiliated with the Disciples of Christ Christian denomination.  The dominant (but perhaps not sole) purpose of LTS, reiterated at the beginning of its Faculty Handbook, “is to prepare faithful leaders for the church of Jesus Christ and, thus, to strengthen the church’s participation in God’s mission for the world.”  All of the Seminary’s degree programs are faith-based, and are designed to prepare graduates for Christian ministry.

Mr. Kant is not a Christian minister; he is not even a Christian.  He is of the Jewish faith and during all relevant times he maintained his Jewish religious beliefs.  While at LTS, he taught a range of courses focusing on, among other areas, biblical studies, Jewish studies, Jewish-Christian studies, world religions, biblical languages, and religion and culture.  In 2006, he was awarded tenure.  The LTS Faculty Handbook (mentioned above) described tenure in the following terms:  “Tenure . . . means appointment to serve until retirement, resignation or dismissal for adequate cause. . . [T]he only grounds for dismissal or a tenured faculty member are moral delinquency, unambiguous failure to perform the responsibilities outlined in this Handbook, or conduct detrimental to the Seminary. . . Along with tenure, however, go the responsibilities specified in the Handbook as well as an added expectation of leadership in the faculty.”

In 2009, after the nation’s financial crisis hit LTS’s endowment hard, LTS declared a financial emergency and announced its intention to take dramatic steps, including the elimination of the tenure of its faculty along with other cost-cutting measures, designed to keep the institution solvent.  Pursuant to this plan, LTS terminated Kant’s employment in 2009.

Mr. Kant then sued in state court, alleging breach of the contractual promises in the Faculty Handbook that his employment could be terminated only for specified reasons, none of which was present here.  By a 2-1 vote, the Kentucky Court of Appeals (and the case is now pending in the Kentucky Supreme Court, which accepted Mr. Kant’s request for review) rejected Kant’s lawsuit on two separate but related grounds.  First, the court held that the case “involved an ecclesiastical matter” that foreclosed the exercise of jurisdiction by a civil court.  Second, the court ruled that LTS enjoyed immunity from the breach of contract claims under the ministerial exception doctrine recognized in Hosanna-Tabor.  (Although one of the two members of the majority wrote a separate concurrence some of which could be read as relying only on the ministerial exception, he did observe that the main opinion “becomes the majority with my concurrence” and also commented in his opinion that LTS’s restructuring “is an ecclesiastical matter over which no civil court has subject matter jurisdiction.”  Thus, the majority opinion is best understood as having relied on both grounds.)

In both respects, the Kentucky court’s ruling goes significantly beyond the Supreme Court’s ruling in Hosanna-Tabor, and highlights the need for the Supreme Court to provide additional guidance in this area.

The “Ecclesiastical Matters” Rule Barring Judicial Resolution

Let us first consider the Kentucky court’s decision that it could not weigh in on Kant’s contract claims because to do so would impermissibly draw it into resolving ecclesiastical matters.  The majority opinion says “Kant’s claims . . . cannot be decided without interpreting the Faculty Handbook to determine whether it allows for restructuring of LTS under a financial emergency and for eliminating tenured faculty under those circumstances.  Indeed, an inquiry into the rationale for LTS’s decision making as to who will teach its students—all of whom attend there with a desire to become pastors or ministers—would be an inquiry into an ecclesiastical matter by this Court.”

This seems like a non sequitur to me.  The first sentence is undeniably correct; Kant’s breach of contract claims require interpreting the promises—and the limits on those promises—made in the Faculty Handbook; the handbook is the contract on which Mr. Kant relies.  But the second sentence would not seem to follow; deciding whether the Faculty Handbook contract implicitly contains a right of LTS to eliminate tenure in times of financial emergency does not involve religious doctrinal or ecclesiastical matters in any way.  If LTS had fired Kant because it said that he had engaged in religiously immoral behavior within the meaning of the Faculty Handbook, deciding whether certain deeds were morally delinquent (within the context of the church community) might draw courts into ecclesiastical matters.  But deciding whether a contract has an exception for financial emergency does not.

To see this, imagine that Kant had taught physical education, rather than religious studies.  And imagine that the Faculty Handbook promised that tenured members of the faculty would be entitled to use the Seminary’s gymnasium after school hours for free.  If the Seminary later tried to begin charging tenured faculty for use of the gym (because of financial exigencies), would anyone argue that a breach of contract claim relying on the Handbook would implicate ecclesiastical matters?

Or imagine a contract that was entered into not with an LTS employee, but rather with an outside provider of services.  Let us suppose LTS hires a roofer to put on a new roof.  The contract states:  “In order to promote the use of the LTS facility as a continuing Seminary, Roofer X shall put on a roof suitable for educational structures for which LTS will pay him $Y.”  Now imagine further that the roofer puts on a new roof, and LTS, because it is at that time in some financial difficulty, refuses to pay the roofer (so that it will have money to buy new books for its library instead).  If the roofer then sues on the contract, we could not say that interpreting the contract and inquiring into whether the reason LTS has not paid—the desire to spend the money on other religious-instruction-related programs—is permitted under the contract as an excuse for non-payment draws a court into ecclesiastical matters, even though such a contract claim would involve an inquiry into “the rationale for LTS’ decisionmaking” as to how to devote its resources.  Certainly the ecclesiastical-matters barrier to adjudication cannot mean that religious institutions can never be sued for breach of contract, and just because the contract with Kant involves faculty personnel does not mean that interpreting it involves ecclesiastical matters.  To the extent that the Supreme Court’s invocation of ecclesiastical deference in Hosanna-Tabor and other cases has been misunderstood, clarification by the high Court will be helpful.

The “Ministerial Exception”

This point leads us nicely into the ministerial exception topic, because it may well be that what troubled the Kentucky Court of Appeals most was not the ecclesiastical nature of the contract, but rather the ministerial nature of the party suing—Kant.  And there are aspects of this case that make it a more attractive candidate for application of the ministerial exception than was Hosanna-Tabor.  In particular, the fact that Kant taught at a wholly sectarian Seminary—as contrasted with the parochial school in Hosanna-Tabor, a place designed not for religious ordination but rather for a general, if religiously-based, education—leans in LTS’s favor.

Yet there are a number of other differences between the two cases that cut against the application of the ministerial exception in Kant.

First, Hosanna-Tabor involved an exception to anti-discrimination laws.  The Court there explicitly “express[ed] no view on whether the exception bars other types of suits, including . . . breach of contract” [claims].  There will be enough time to address the applicability of the exception to other circumstances if and when they arise.”  The Kant court acknowledged this caveat in Hosanna-Tabor, but nonetheless—and without any analysis or explanation other than the mention of the fact that some lower federal courts had applied the ministerial exception to contract claims—simply extends the exception.  Maybe it makes sense to apply the ministerial exception outside of the context of anti-discrimination laws, but certainly some discussion of why this is so—and how far the exception should reach—is in order.

Second, and very important, the Kant court found that Mr. Kant fell within the ministerial exception because of the religious-instruction function that he performed within LTS—”teaching students who desired to become involved in Christian ministry.”   As the court noted, “[b]ecause Kant’s primary duties involved teaching religious-themed courses at a seminary,” he is covered by the exception.  This seems far too quick.  For starters, as the dissent points out, there is a difference between teaching religion (when one is trying to convince students to accept certain religious beliefs, or at least reinforce those beliefs), and teaching about religion, which is an academic exercise in ideas, not an attempt to inculcate particular spiritual beliefs.  And on the record in this case, Mr. Kant may very well have been doing the latter.

More generally, and perhaps more fundamentally, there is a divergence between the Kant court’s approach and that of the Supreme Court majority in Hosanna-Tabor on the question of how we decide whether someone is a minister for these purposes.  In Hosanna-Tabor, the Court eschewed any rigid formula, but it did stress not just the function of a particular employee, but also the status and title that that employee enjoyed and used.  Indeed, in Hosanna-Tabor, the Court identified four reasons why Ms. Perich should be considered a minister: (1) the “formal title” of minister was given to her by the church when she was commissioned; (2) as a prerequisite to that commission, she undertook religious training and education designed to demonstrate her faith and her ability to minister; (3) she used the title herself and held herself out as a minister and a believer; and (4) she undertook certain “functions . . .  performed for the Church.”  Three of the four factors (the first three) focus on title and status, rather than function.  Indeed, the Court in Hosanna-Tabor chided the United States Court of Appeals for the Sixth Circuit (the lower court in the case) for failing “to see any relevance in the fact that Perich was a commissioned minister.”   As the Court observed, “the fact that an employee has been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of an employee’s position.”  And yet the Kant court all but ignored the fact that Mr. Kant is not—and could not be, since he is openly Jewish—considered a minister within the Disciples of Christ church.  He professed no belief in, and was not commissioned under, any Christian faith.  Neither he, nor the church, would consider him a minister for any purpose other than a legal immunity from suit.

It is true that Justice Alito (joined by Justice Kagan) wrote separately in Hosanna-Tabor to make clear their views that function—and not just titles or status—should matter in deciding who is a minister.  But they seemed to be writing particularly about religions that don’t use commissions or ordinations or titles of ministers; thus, their opinion needn’t be read to say that, for religions that do use such titles, the status of a particular employee should not be an important factor.  Moreover, the fact that Justices Alito and Kagan felt they had to write separately serves to underscore how important status/title was in the analysis of the majority opinion, which six Justices signed onto without elaboration or reservation.  In any event, whether one feels the Kant ruling is an overly expansive application of the ministerial exception or not, the larger point is that before too long, the Supreme Court is going to need to step back in and clarify precisely how broadly, and to whom, the exception applies.