“Some Group of Computer Experts” and Their “Sociological Gobbledygook”: Oral Argument In Gill v. Whitford

Gill v. Whitford involves the most blatant, egregious instance of political gerrymandering that our country has seen in a very long time. This is ironic, because while the facts at issue may compel five justices to take action, they will probably be irrelevant to the Court’s ultimate holding.

Last term, I wrote about the Supreme Court granting certiorari in Gill v. Whitford, a momentous political gerrymandering case involving redistricting of the Wisconsin state house districts. Over the summer, merits briefs were filed and the Court heard argument on Tuesday morning. The respondents – citizens of Wisconsin – have demonstrated unimpeachable evidence that the GOP-controlled Wisconsin State Assembly intentionally drew maps with the express intent to disproportionately maximize the number of GOP districts, in the most aggressive, brazen ways possible (resulting in winning 60% of the assembly seats with only 47% of the vote). Their facts are based on concrete scientific and mathematical findings, as well as unprecedented evidence of intent to redraw lines for purely political ends. This much is really beyond dispute, which is probably why the case is before the Supreme Court in the first place.

The Court has two much bigger legal questions before it, neither of which actually require discussion of any facts: 1) are political gerrymandering claims justiciable at all, and 2) if so, what is an appropriate, manageable standard with which to analyze those claims? In a way, the case is so appealing because the facts approach the logical conclusion of this issue – if there ever is to be a finding of an unconstitutional political gerrymander, this is it.

But that is essentially where the facts end and the legal issues begin. In a prior case, Vieth v. Jubilerer, four justices found that political gerrymandering cases were non-justiciable and four justices said that they were justiciable and that a workable standard existed. Then there was Justice Kennedy, who found that no manageable standard had been presented, but left open the possibility that one might exist in the future. A prior case held that such claims were justiciable, but the court in that instance fractured on the specifics of the standard.

Predictably, finding a manageable standard was on everyone’s minds at oral argument. The Wisconsin Solicitor General began her argument by stating, “This Court has never uncovered judicial and manageable standards for determining when politicians have acted too politically in drawing district lines.” Counsel for the Wisconsin State Senate also began her argument by proclaiming, “Plaintiffs have not identified a workable standard…” They might as well have stared directly at Justice Kennedy.

Justice Breyer, for his part, cut even further to the heart of the issue, explaining why all the mathematical mapping models on earth could not help the plaintiffs unless they identified a workable standard: “Because I think the hard issue in this case is are there standards manageable by a Court, not by some group of social science political ex — you know, computer experts.” Put differently, again by Justice Breyer, “When I read all that social science stuff and the computer stuff, I said, well, what — is there a way of reducing it to something that’s manageable?”

That is why, at oral argument, the actual facts of the case were barely discussed.  True, the justices did thoroughly address S-curves, Efficiency Gaps (EG) and other mathematical modeling, but mostly in the context of determining the judicial manageability of using those tools. Chief Justice Roberts aggressively attacked the Plaintiffs’ reliance on mathematical modeling, calling it “sociological gobbledygook” and forcefully asserting that, “It is just not [] a palatable answer to say the ruling was based on the fact that EG was greater than 7 percent.  That doesn’t sound like language in the Constitution.” Plaintiff’s counsel struggled to parry attacks as to this issue, particularly when he attempted to use statistical modeling in establishing a manageable legal standard. There appear to be four justices who reject the use of mathematical modeling in evaluating a political gerrymandering claim.

Ultimately, however, Justice Kennedy seemed quite skeptical of Wisconsin’s argument that no act of political gerrymandering could ever be unconstitutional, no matter how brazen. He repeatedly questioned counsel for the Wisconsin State Senate on whether a state could amend its constitution to mandate that district maps would be drawn to maximize votes for a particular party. He seemed thoroughly dissatisfied with counsel’s answer, which suggests that he believes that political gerrymandering could run afoul of the constitution, albeit possibly in only the most blatant cases.

But no matter how this case comes out, the actual facts involved likely will not play a major role, beyond simply convincing Justice Kennedy to come off the sidelines and adopt a workable standard. For example, if political gerrymandering is held to be non-justiciable, then the facts would never have mattered. On the other hand, if Justice Kennedy can agree to a manageable standard, then the case will most likely be remanded back to the lower court to re-apply the facts to this new standard, albeit with the understanding that these facts probably clear whatever hurdle the high court implements. If the court adopts the standard implemented by the District Court, then the District Court’s decision will be affirmed.

So, again, as compelling as the facts may be, they do not really matter once they have cajoled Justice Kennedy onto the field.

SCOTUS Takes Masterpiece Cakeshop v. Colorado Civil Rights Commission

On the last day of the term, the Supreme Court granted cert in Masterpiece Cakeshop v. Colorado Civil Rights Commission. It shouldn’t have. Objectively straightforward, the case involves First Amendment claims made by Masterpiece Cakeshop and its owner, Jack Phillips, which are foreclosed by existing precedent and have been rejected by every court, judge and agency to consider them.

The facts are simple and unfortunate. Jack Phillips owns a suburban Denver bakery, Masterpiece Cakeshop. Charlie Craig and David Mullins are a same-sex couple that married out of state and then returned to Colorado to celebrate their nuptials with friends and family. For the occasion, they sought a wedding cake. Unfortunately, they went to Masterpiece Cakeshop and were met by Phillips in the store. That’s where things went south. Craig and Mullins indicated that they wanted a cake for their wedding, without providing any additional details whatsoever. However, Phillips refused to serve them, without knowing any details about the cake they wanted. Phillips explained that he had a policy of not selling cakes for same-sex weddings, but that they could purchase something else there if they wanted. Oh.

Colorado has an anti-discrimination statute (“the Act”) barring discrimination in public accommodations on the basis of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry. Phillips and his bakery violated this statute by their behavior towards Craig and Mullins – that much is not disputed.

Craig and Mullins then filed a charge with the Colorado Civil Rights Division, which conducted an investigation and found that Masterpiece Cakeshop violated the Act. The Colorado Attorney General then filed an administrative action, wherein summary judgment was granted against Masterpiece Cakeshop. The company then appealed to the Colorado Civil Rights Commission and then to the Colorado Court of Appeals, losing all along the way. The Colorado Supreme Court denied the company’s petition for review. The company and its owner, Phillips, then petitioned for cert to the U.S. Supreme Court, which granted the petition last week after a whopping 14 re-lists. Phillips and his company make two claims: that the decision violates their rights of free speech and free exercise of religion under the First Amendment.

The free exercise claim is straightforward. In Employment Division v. Smith, 494 U.S. 872, 885 (1990), an individual was denied unemployment benefits after he was fired for the religious use of peyote. In rejecting the former employee’s Free Exercise claim, the Court found that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Id. at 879. Thus, a generally applicable law such as one banning peyote does not violate the Free Exercise claim just because it happens to bar conduct that some engage in for religious reasons. Likewise, non-discrimination statutes such as the Colorado Anti-Discrimination Act do not target religion, they simply prohibit discrimination on the basis of a protected class. Said statutes are valid, neutral, and of general applicability. Countless similar anti-discrimination statutes across the country have been validated on that basis.

That Phillips, the store owner, doesn’t want to follow the law is irrelevant. Phillips argues that he believes that god would be displeased by Phillips’ participation in a same-sex wedding. That’s his right to believe that, but it doesn’t exempt him from anti-discrimination statutes. Some misguided people believe that god is displeased when a woman has a full-time job instead of being a housewife; but if a manager at Fedex Office refused to print all married women’s resumes on that basis, the Free Exercise claim would grant him no reprieve.

Jack Phillips is essentially asking the Supreme Court to punch a religion-sized hole in all anti-discrimination statutes, for everyone. This would have disastrous consequences. For example, a CEO buys into the disgusting stereotype that women are of inferior intellect and therefore he refuses to hire them? Well, under Phillips’ logic, as long as the CEO’s beliefs stem from his religious preferences, suddenly he would be free from the shackles of non-discrimination statutes. A restaurant doesn’t want to serve African-Americans? As long as his religion proscribes the mixing of races, then he is in the clear. Or, if Phillips wanted to refuse making cakes for interracial marriages, under his logic he could do that too. Obviously, this position is untenable.

Lastly, Phillips argues that various prior rulings in other cases by the Colorado Civil Service Commission render its application of the Act no longer one of neutral applicability, thus requiring strict scrutiny review. That argument was rejected repeatedly in the lower courts. Even if it is valid, however, the Supreme Court is not a court of error correction. Even if the Supreme Court was concerned regarding the Colorado Civil Service Commission’s past application of the otherwise lawful Act, this is hardly a reason to take the case; at best, even in that circumstance, the Supreme Court could have simply GVR’ed the case back to the Colorado courts on that issue. Simply put, the Supreme Court takes cases about the intersection of discrimination statutes and the First Amendment, not whether the Colorado Civil Service Commission may have erred in its application of law. That’s not what the Supreme Court is here for, and it says as such repeatedly. Indeed, Rule 10 of the Supreme Court Rules, “Consideration Governing Review on Writ of Certiorari,” states, “[a] petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.”

Then there’s the free speech claim. The only problem is that no speech is involved. Phillips was not asked to put specific words on a cake. He wasn’t asked even to make a specific design. He didn’t have any information except: gay wedding. On that basis alone, he refused to serve Mullins and Smith. The cake could have been plain white with no text. It could have been a pre-made sheet cake sitting in a display case. It could have been a cake design traditionally used for birthday parties. It didn’t matter to him. This demonstrates that it wasn’t the particular design or speech that Phillips objected to, it was the very concept of providing a cake – any cake – for a same-sex wedding. In fact, Phillips admits as such in his cert petition, indicating that he does not make cakes for same-sex weddings because “Phillips’ religious conviction compels him to create cakes celebrating only marriages that are consistent with his understanding of God’s design.” The particular speech or design of the cake was irrelevant.

This case is about doing, not speaking. And Colorado is plainly allowed to regulate conduct to proscribe discriminatory behavior. “Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 390 (1992).

Phillips makes the argument that forcing him to make gay wedding cakes sends the message that he agrees with the concept of gay marriage. Again, examples demonstrate the fallacy of this argument. Could another baker refuse to serve an interracial couple because doing so might send the message that he or she agreed with interracial marriage? Could a KKK grand wizard who owns a diner refuse to serve African-Americans, since doing so might send the message that he didn’t support white supremacy? Countless examples exist to undercut Phillips’ flawed argument.

To be sure, the closer question is whether the Act could mandate specific speech on the cake. But that’s not what’s going on here. Phillips hadn’t agreed to bake the cake and then balked when instructed to put certain verbiage on the cake. He wasn’t asked to write “I support gay marriage” or “god loves gay marriage”. He was asked to make a cake; that many cakes happen to have expressive aspects is not dispositive, especially since Phillips refused the couple before knowing what if any speech or expression was actually involved.

Neither is it persuasive that Phillips is – as he says in his briefs – a “cake artist”. Phillips’ self-professed artistry doesn’t exclude him from anti-discrimination statutes. Do wedding dancers, or a wedding DJ, or a wedding caterer possess the constitutional right to only perform for Christian weddings, on the basis that they are artists who believed that God only prefers Christian weddings? Obviously not.

That’s why its so puzzling that the Supreme Court took this case. This case is easy, and any complicated aspects of it relate only to the application of facts to law. Again, a future baker in a similar situation would have a much more plausible case if he was asked to actually put pen to paper (or pastry bag to cake, as the case may be). There are indeed some interesting questions: When is business conduct sufficiently imbued with expression so as to trigger First Amendment protection? When can the free exercise of religion permit businesses to engage in otherwise-proscribed conduct? When do anti-discrimination statutes impermissibly infringe on First Amendment rights? Would Phillips possess a claim under a state or federal RFRA statute? However, these questions really just aren’t implicated here.

That four Justices took this case is troubling. That the case languished in re-list purgatory until after Justice Gorsuch took the bench is even more troubling. This suggests that before his arrival, the court felt that it would be headed for a 4-4 deadlock. Now, it looks like there may be five in Phillips’ favor. True, the Court could issue a very limited decision reversing and remanding based on some specific error it found in the Colorado courts’ reasoning or specific application of law. That might be one of the better-case scenarios at this point, and the Court has done this in some other cases recently, like Hernandez v. Mesa and Los Angeles v. Mendez. Or it could go the Trinity v. Comer route and include a footnote limiting the holding to the specific set of facts at issue. But as I said above, the Supreme Court really isn’t here to discuss the finer points of the logic of the Colorado Civil Service Commission. Thus, you have to think that the Court is ready to reach the merits of this case head-on, with at least a few of the Justices primed to rule in Phillips’ favor. That is nothing to celebrate.

Trinity Lutheran v. Comer: We Talkin’ About Playgrounds?

The Court ruled this week in Trinity Lutheran v. Comer, the church playground tire case that I previously wrote about. This post will discuss the majority opinion’s attempt – perhaps a futile one – to blunt the extent of its holding via what I’ll call a “limiting provision”, and I’ll discuss other cases where the Supreme Court has similarly attempted to artificially limit the scope of its holding essentially by saying as such, even if the actual rationale of the court suggests otherwise.

I. Trinity Lutheran: What’s Behind Footnote Number 3?

But first, some background. In Trinity Lutheran, a church applied for a state grant for reimbursement to buy tire scraps to use as a safe surface for its playground. What some might generously call the center of the Court – Chief Justice Roberts writing for Justices Kennedy, Kagan, and Alito (I know, I know, he’s not moderate, but he sure ain’t Justices Thomas or Gorsuch) – found that prohibiting Trinity Lutheran Church from the Missouri tire scrap program solely because it was a church ran afoul of the Free Exercise clause of the First Amendment. Justice Breyer, also certainly considered to be a moderate, concurred in the judgment only. Justices Ginsburg and Sotomayor dissented. That leaves Justices Thomas and Gorsuch, and it gets us to Footnote 3 of the majority opinion. Thomas and Gorsuch concurred with the entirety of Chief Justice Roberts’ majority opinion… except for footnote 3.

Footnote 3 stated, “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” The intent of this footnote was clearly to placate the more liberal members of the majority. See, this case is seen by some as a wolf in sheep’s clothing, an attempt by the religious right to destroy the wall between church and state. The thinking goes, once the court blesses – indeed, mandates – government funding of a church, then the Establishment Clause ceases to have the same effect. Sure, this is about playgrounds, but the next case will be about government funding of prayer books, or religious schools, etc. Plus, the court is now requiring the government to pay churches; that money – while earmarked for playground tire scraps – can now be used for any religious purpose whatsoever. So, footnote 3 basically says, to paraphrase Allen Iverson, “we talkin’ about playgrounds.”

But is that actually persuasive? Just because the majority claims that the holding doesn’t apply to religious uses, that doesn’t mean the majority’s rationale wouldn’t also then apply to such uses in a later case. Essentially, all the Court is saying is that it isn’t right now applying its rationale to more religious uses of funds. The Court’s rationale in the case is that denying government funding based on religious status is subject to the “most rigorous scrutiny.” That test would presumably apply to any denial of government funds to religious organizations. Who says that avoiding Establishment Clause concerns is a compelling interest? So, Footnote 3 rings somewhat hollow.

That got me thinking – when has the Court as used similar limiting language in other opinions, and what has been the effectiveness? The two big cases that come to mind are Bush v. Gore and U.S. v. Windsor, the Defense of Marriage Act case. Both times, the Court’s attempts to limit its Opinion to its particular facts was not very effective, but its up for debate if it was actually intended to be, or whether it was a way of placating certain members of the Court.

II. Bush v. Gore: “You Guys Should Just Totally Ignore What We’re Saying Here.”

We all remember Bush v. Gore. Considered by many to be a disgracefully political moment for the Court, the case was technically about whether “the use of standardless manual recounts violates the Equal Protection and Due Process Clauses.” The Court found an Establishment clause violation, but instead of treating its opinion like any other, the Court tried to avoid giving precedential value to its own opinion: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Being embarrassed about the logic of one’s argument typically doesn’t help the legitimacy of said argument, but hey, there was a presidential election to be decided.

Regardless of the Court’s intent, Bush v. Gore has now been cited repeatedly, and CaseText lists 337 cases referencing or citing to it. While that’s not nothing, another big case from 2001, Kyllo v. United States, has been cited 1,060 times, though that’s one with more applicability than Bush v. Gore. On the other hand, a big case from OT1999, Boy Scouts v. Dale, has only been cited 309 times. So, it’s fair to say that Bush v. Gore has indeed been cited with some degree of normalcy.

III. U.S v. Windsor: Justice Scalia Is Bad At Checkers And Worse At Chess

Then there’s U.S. v. Windsor, the DOMA case. There, the Court was tasked with determining whether a federal law not recognizing same-sex marriages violated the Equal Protection and Due Process clauses. Famously, after the Court provided a number of reasons why refusal to recognize same-sex marriages violated the Due Process Clause of the Fifth Amendment, the Court then ended its Opinion by stating, “This opinion and its holding are confined to those lawful marriages.” This was intended to mean that the opinion did not apply to states’ non-recognition of same-sex marriages and only applied to federal non-recognition.

This was laughably transparent at the time, and everyone and their mothers (plural) knew that the court was eventually going to find that states’ prohibition of same-sex marriage was unconstitutional. The Court just spent 25 pages (adeptly and convincingly) explaining the obvious reasons why refusing to recognize same-sex marriage was blatantly unconstitutional. Then the Court ends the opinion with, “oh yeah, we are only talking about the federal government here (wink).”

In his dissent, Chief Justice Roberts saw what was obviously going on, but didn’t take the bait. Seeing that lower courts would inevitably use the majority opinion’s logic in subsequent same-sex marriage cases against states unless the court’s limiting language was taken seriously, the Chief Justice tried to convince the world to take the majority at its word: “But while I disagree with the result to which the majority’s analysis leads it in this case, I think it more important to point out that its analysis leads no further… In my view, though, the disclaimer is a logical and necessary consequence of the argument the majority has chosen to adopt.” Ok, sure.

While the Chief Justice played chess, Justice Scalia played checkers. Justice Scalia essentially wrote future plaintiffs’ briefs for them, explaining how the rationale of the majority opinion could  in fact be applied in challenges to states’ same-sex marriage bans. He went so far as to cross out references to DOMA in the majority opinion and insert “the state’s laws”, thus demonstrating how the majority opinion really does demonstrate why same-sex marriages bans are unconstitutional. Pointing out the obvious – which everyone else was smart enough to understand but not verbalize – Justice Scalia’s dissent was ultimately used by countless lower courts to demonstrate why state same-sex marriage bans were indeed unconstitutional.

Honestly, I find it hard to believe that Justice Kennedy didn’t know at the time that he believed all same-sex marriage bans to be unconstitutional. After all, two years later to the day, he wrote his opinion in Obergefell striking down all same-sex marriage bans. More likely, the language in Windsor was intended to try and placate conservative justices. Obviously, it didn’t quite work, but it also didn’t matter.

IV. Alright, Back To Trinity Lutheran

This gets us back to Trinity Lutheran. I have a feeling that Footnote 3 was negotiated to placate Justice Kagan and possibly Justice Kennedy. The Court recently did something similar in LA v. Mendez, an excessive force case, where it had a random, un-numbered footnote basically saying that the Court wasn’t holding that the particular facts of the case constituted reasonable force; rather, if a lower court finds that the force used was reasonable, then the plaintiff had no other avenue of maintaining an excessive force claim.

It seems inevitable that the Court will again revisit the issue of governments refusing to fund religious organization’s religious use of funds, and the need to draw clear lines will become more important. So, the Court’s logic here may indeed be used later. The Chief Justice does that adeptly – using his own logic in a prior case as a jumping off point to ultimately do something big and conservative. For example, he used his own rationale in Northwest Austin v. Holder to ultimately strike down the Voting Rights Act’s pre-clearance provisions four years later in Shelby County v. Holder. Again, chess not checkers.

So, at this point, it remains to be seen what the ultimate effect of the Court’s Opinion in Trinity Lutheran will be, and same with Footnote 3. But, don’t be surprised if a few years down the line, the Chief Justice sheds that footnote and uses this case to find for religious institutions in cases down the road.

Trump Travel Ban, Part Infinity: Yossarian Edition

I wrote earlier this week about how the Ninth Circuit’s ruling on the travel ban would affect the proceedings in the Supreme Court. When discussing the narrowing of the injunction to permit the White House to conduct an internal review of visa screening procedures, I argued that it would now be incumbent on the Trump Administration to promptly commence such a review or else risk blowing up the facial raison d’être for the ban. I still believe that to be true. However, after reading subsequent filings by the parties in the Supreme Court and commentary regarding same, I have realized that the narrowing of the injunction places the White House in a much bigger pickle than I initially believed.

As background, Trump’s stated reason for the original 90 day travel ban and its successor EO was that the White House needed to conduct a review of visa vetting procedures. In a well-reasoned tweetstorm, the indispensable and increasingly omnipresent Steve Vladeck aptly explained the government’s stated reason for the ban: “the travel/entry ban was not an end unto itself, but a means to help carry out the real goal of the EO: new vetting rules.” (Yes, I just quoted a tweet, but that seems perfectly legitimate given the subject matter. The Ninth Circuit says they’re admissible now.)

While the original ban itself was enjoined by the Western District of Washington before it ever began, the review process was not, and the White House remained free to conduct such a review. Once a new travel ban was announced, the District of Hawaii then implemented an injunction which not only blocked the ban but also blocked the review process from occurring as well, roughly 45 days after the first EO’s review was to initially begin. As of the Ninth Circuit’s ruling on Monday, however, the DOJ is now free to proceed with the review. As noted above, the Trump Administration needs to begin this review or else it proves that it was merely pretext for the ban. Indeed, today the DOJ has indicated that it will now conduct the review because of the Ninth Circuit’s narrowing of the Hawaii injunction.

However, Vladeck pointed out that by conducting the review, the Trump Administration undermines the entire purpose for the ban. If the White House is indeed able to conduct this review process now, then why was the ban ever actually necessary? The whole point was to conduct the process that it is now conducting without such a ban being in place.

This point is compounded by the fact that the DOJ has not asked for expedited argument. This means that the 90-day review period will surely have concluded prior to a decision by the court. At that point, what is the point of the travel ban at all? The ban was to facilitate a review process which will have already concluded by the time the court decides the issue.

Hawaii’s counsel yesterday made a similar point: because more than 90 days have passed since the original EO and nearly 90 days since the second EO, this whole case will be moot by the time it gets to the Supreme Court. While I do not think that this argument holds water especially given the Hawaii stay of the review process, the point is clear: the Supreme Court will be deciding the fate of a travel ban which would have – on its face – already concluded had it been allowed to run its course.

This puts the White House in a Catch-22. If it does not conduct the review, then it risks destroying the stated rationale for the ban. If it does conduct the review and the ninety-day period concludes, then the ban is no longer necessary. The one acceptable middle position would have been to seek expedited argument so that the review would be ongoing at the time of argument, but the DOJ elected not to take this tact.

The DOJ could and likely will argue that while it is conducting its review now, said review will not be fully efficient or effective until a shutdown is implemented. But oral argument may not be until October, nine months after the original ban; can the DOJ credibly argue at that point that its ability to conduct a review which would have taken three months under optimal conditions has been so hamstrung that it couldn’t be completed in nine? I don’t think so.

Vladeck does seem to suggest that the DOJ was simply wrong in commencing the review process, which in turn would mean that the Catch-22 I described above wouldn’t really exist. I disagree. The argument that the White House is conducting a review – albeit a hobbled one – is much stronger than simply doing nothing when it is permitted to act. Conducting the review now, immediately after the Ninth Circuit’s narrowing of the injunction, is the one bit of urgency that the DOJ or White House has expressed during this saga. It makes more sense to argue that it had a national security imperative to begin a flawed review immediately rather than waiting for the Supreme Court to enable an unfettered review many months from now. Regardless, neither way is optimal, and that’s my entire point – the DOJ is now in prime “damned if you do, damned if you don’t” territory.

Finally, this situation is one of the White House and DOJ’s own making. Their stated rationale for the ban was the urgent need to conduct a temporary review of vetting procedures, in the name of national security. That rationale probably doomed the ban from the start, because it lit a ninety-day fuse for the destruction of the ban’s stated usefulness. The White House and DOJ also bungled the rollout, failing to actually conduct such a review in the 45 day window it had, and then repeatedly refusing to take steps to expedite the inevitable path to the Supreme Court. The DOJ’s dilly-dallying – knowing that the clock was ticking until the court’s summer recess, not seeking immediate Supreme Court review, not asking for expedited argument, and then asking in mid-June for a delay in briefing (!) – undermines its own arguments that this is an urgent national security concern.

Ultimately, the White House may still win at the end of the day. But if they do, then it seems likely that such a result was preordained from the start, since neither the White House nor the DOJ has done themselves many favors.


Ninth Circuit Affirms Injunction Blocking Trump Travel Ban 2.0

On Monday, a Ninth Circuit panel mostly upheld the preliminary injunction against the Trump travel ban. Notably, the court did three things which were ostensibly designed with an inevitable Supreme Court showdown in mind: 1) it did not reach the constitutional issues, instead relying entirely on statutory grounds; 2) it struck down the ban without relying on Trump’s campaign statements, and 3) it slightly narrowed the scope of the injunction. These are all important, as will be set forth below.

I. Taking The (Statutory) Road Less Travelled

Much of the buzz about the travel ban has dealt with its constitutionality – whether it violates the Establishment Clause of the First Amendment. However, the travel ban has also been challenged on statutory grounds. While the Fourth Circuit’s ruling addressed only the constitutional issues and did not reach the statutory issues (as did the Ninth Circuit panel in the travel ban 1.0 case), the Ninth Circuit’s ruling this week did just the opposite. It was the first appeals court decision on either travel ban to address only the statutory arguments.

This is important because it lets the Supreme Court do three things that it loves to do: let issues “percolate” in the lower courts before taking them, exercise constitutional avoidance, and avoid sweeping devisions with unwanted or unintended consequences.

A. It’s Time For The Percolator

First, the court loves to let lower courts weigh in on big issues first. For some reason, every Supreme Court analyst and their mother refers to this as lower court “percolation”. Essentially, what lower court “percolation” means is that the Supreme Court does not like taking cases until at least one appeals court decides it first. It is quite likely that the Supreme Court would have wanted the thoughts of the lower courts on the statutory issue, but prior to this week no appeals court had decided either travel ban on statutory grounds. That has now changed, the statutory issue has been percolated, and the Supreme Court is now ready for its morning coffee.

B. Avoidance Like the Plague

Second, the court loves to avoid deciding constitutional issues when it can. Similarly, the court typically seeks to avoid controversial or deeply political issues, which it fears may affect its legitimacy. A ruling on statutory grounds would let the Supreme Court avoid a sweeping constitutional ruling and also partially mitigate the inevitable political fallout from its decision. Thus, the Ninth Circuit has provided the Supreme Court with a roadmap to strike down the travel ban while doing so on narrow, more palatable terms.

C. “We Write Some Words…”

Relatedly, the Supreme Court also tends to avoid issuing sweeping opinions with unforeseen or unwanted ramifications beyond the facts at hand. As Justice Breyer stated during oral argument in another case this year, “[w]e write some words…. The problem is other people will read those words, and there are all kinds of things that happen…” This is the Supreme Court’s general concern in a nutshell – that its rationale will be applied to circumstances well beyond just the facts of the particular case being decided.

A broad ruling on the constitutional issue would then apply to many other contexts, from subsequent presidents’ immigration decisions to equal protection claims generally. Trump’s presidency, obviously, is quite different than most presidencies; the Supreme Court will not want its opinion here to hamstring future presidents in engaging in run-of-the-mill immigration decisions or national security determinations. Essentially, the trick is to strike down the travel ban (if it is so inclined), while limiting the applicability of this ruling to different contexts. That is easier said than done.

II. Trump’s Campaign Statements

The issue of unwanted consequences also arises when discussing Trump’s campaign statements. Unlike the Fourth Circuit, the Ninth Circuit did not rely on Trump’s campaign statements in striking down the travel ban. There is a very real concern that the court’s reliance on Trump’s campaign statements will open the doors to using campaign statements against public officials in all sorts of litigation pertaining to government decision-making. The Supreme Court will be loathe to weaponize campaign statements by political candidates, and it will avoid using Trump’s campaign statements entirely if it can. To that end, the Ninth Circuit omitted such references. Again, this signals to the Supreme Court that it can strike down the ban while staying out of the thorniest part of the thicket.

III. Narrowing the Injunction

Lastly, the Ninth Circuit narrowed the scope of the lower court’s injunction, in that it now permits the White House to conduct an internal review of visa vetting procedures. This review served as the facial reason for the ban, which was to last 90 days (and 120 days for the Syrian refugee program) while the review was conducted.

Today, the clock begins ticking anew. At this point, there is no evidence that such a review ever began in the first place, but the government may have gotten lucky when it was barred from doing so by the District of Hawaii. Now, that excuse melts away, and it will be incumbent on the government to begin that vetting review in earnest. In the Supreme Court, the plaintiffs will certainly argue that if the ban was really about the review process – and not just pretext for banning Muslims – then the review would have begun immediately and would already be concluded. If there is little or no evidence that such a review has taken place at the time of Supreme Court briefing or oral argument, then the government’s stated rationale for the ban will be destroyed.

This aspect of the ruling is also important because keeping the injunction as-is would have certainly given the Supreme Court a good reason to grant certiorari. Barring the President from internally reviewing visa vetting procedures – which does not adversely affect anyone in and of itself – was something that didn’t make much sense. Although the Supreme Court is likely going to grant cert anyway, there is now one fewer reason to do so.


WHERE THE RUBBER MEETS THE ROSARY: The Supreme Court Hears Trinity Lutheran Church v. Comer

Does a playground for two-year-olds advance a religious purpose just because it is run by a church? Is the government justified in denying funding to a church to build that playground, even when the government would provide funding for the exact same playground if it were built by a secular organization? The case of Trinity Lutheran Church v. Comer, being heard this week at the Supreme Court, addresses these questions. In other words, when is a playground more than just a playground?

Used tire scraps – which can be recycled and turned into soft, safe surfaces for playgrounds – are instead routinely discarded in landfills. This not only creates unnecessary waste, it also means that playgrounds are instead covered in cement and other hard, unsafe surfaces for kids. In an effort to kill two birds with one stone, the state of Missouri created the Scrap Tire Grant Program (STGP), a program designed to reimburse non-profit who purchase used tire scraps for their playgrounds. Trinity Lutheran Church, which also runs a religious preschool and daycare center, applied to the STGP to obtain reimbursement for this very purpose.

Despite Trinity’s application ranking fifth among the forty-four applicants for a grant – high enough where the application was surely to be approved – the state of Missouri rejected Trinity’s bid. It did so solely on the basis that the Missouri Constitution forbids public funding of religious organizations. Trinity sued, claiming violations of the First Amendment’s Free Exercise clause and the Fourteenth Amendment’s Equal Protection clause, but it lost in both the district and circuit courts (the panel split 2-1). Cert was granted, and the Supreme Court hears argument this Wednesday, April 19th.

No one disputes that the funds would be used for a seemingly secular purpose: a playground. In fact, it is a playground that children of the community at large also use after school hours and on weekends. However, the government essentially states that it can exclude the church from eligibility entirely because of the Establishment Clause concerns implicated by government funding of religious organizations, even if the conduct at issue by the church is not overtly religious in nature.

This case essentially presents a battle between 1) a state’s freedom to protect its citizens against Establishment Clause concerns and 2) religious organizations’ rights under the U.S. Constitution.  One one hand, the religious liberty side says that religious groups are not seeking special treatment and instead simply do not want to become “second-class citizens” under the law. On the other hand, Missouri argues that every state needs room to protect its citizens from  religious encroachment, in order to preserve the separation between church and state. Both sides have interesting points, and the case essentially presents two favorite conservative causes, state’s rights and religious liberty, and puts them at odds with one another.

Thus, not surprisingly, the case makes for strange bedfellows. The ACLU and certain religious groups are both supporting the government, while many other religious groups of varying faiths are supporting a Lutheran church receiving government funding, which in other contexts might produce outrage by other religious groups. Moreover, one religious liberty scholar supporting Trinity Church even cited Romer v. Evans, a landmark gay rights case, as one of the grounds on which the church could win.

That scholar is Mark Rienzi, professor at Catholic University and Senior Counsel at the Beckett Fund for Religious Liberty. Rienzi and the Beckett Fund are frequently involved in religious liberty cases at the Supreme Court, they wrote an amicus brief for Trinity Church in this case, and Mark graciously agreed to speak with me about this case.

Rienzi essentially asserts that this is a classic discrimination claim – the church is being denied a benefit solely because of its status as a religious organization, and the state admits it. That, to Rienzi, is a lot like other discrimination cases, such as Romer, where the Supreme Court struck down on Equal Protection grounds Colorado’s constitutional amendment preventing the state from recognizing homosexuality as a protected class. As Rienzi stated in our conversation:

“The high level principle is the government can’t exclude you from equal participation based on your status. The core of Romer was that principle. The government can’t exclude you from equal participation based on your status and yet that’s precisely what the state of Missouri is admitting it’s doing to religious groups [in Trinity]. And that that just seems obviously impermissible.”

To be sure, Rienzi also believes that Romer is just one of the ways in which the church can win, and that it also has a strong Free Exercise claim. But, the comparison between religious liberty and gay rights certainly caught my eye.

Ultimately, the most persuasive argument I heard from Rienzi was his comparison to FEMA’s response after Hurricane Sandy. When entire town blocks were destroyed, FEMA did not exclude synagogues and churches from its rebuilding efforts, but rather it helped rebuild these religious organizations just like any other entities that were damaged. As Rienzi stated to me:

“Hurricane Sandy in some towns wiped out the whole block. It wipes out the candy store and the library and the synagogue and something else. And FEMA is going in with grant money to help everybody pump the water out and repair their places. One view of the world says, ‘Oh, you can help the candy store. And you can help the library, it’s a public thing. And you can help the movie theater. But skip the synagogue and go to the next one.’

FEMA, to their credit, came around to the correct answer, which is ‘No, we’re not helping the synagogue in any special treatment for religion kind of way. We’re helping the synagogue because it’s one of the things on the block that got wiped out. We’re helping everything on the block that got wiped out.’ That sort of equal treatment for religion – not treating religion as something that needs to be segregated or mistreated, but instead as something that can participate on equal terms with everything else – that’s what the constitution requires and that’s what Missouri’s getting wrong here.”

That analogy underscores the fundamental point being made: just because an organization is religious does not mean that providing it with government funding will inherently erode the wall between church and state. We aren’t dealing with government funding of new prayer books, we are dealing with tire scraps for a preschool playground. As I said above, sometimes a playground is just a playground.

The case is essentially the polar opposite of a prior free exercise case, Employment Division v. Smith, 494 U.S. 872 (1990). There, when an Oregon man was denied unemployment compensation due to his religious use of peyote, the Supreme Court held that neutral laws of general applicability do not violate the Free Exercise clause, even when they incidentally restrict religious conduct. Thus, the peyote ban was constitutional.

The Trinity case is basically the exact opposite – here, the religious organization is engaging in neutral conduct (getting tire scraps for a playground), yet the government is treating it differently solely on the basis of religion. It remains to be seen whether the Court will in turn apply strict  scrutiny or will instead – like in Smith – opt to apply a much lower standard.

Moreover, the case is complicated by a last minute decision by the State of Missouri – under a new administration – to reverse course and grant STGP eligibility for religious organizations. This decision, issued on Friday, only five days before oral argument, does not appear to moot the issues, but it does potentially undercut the government’s argument that the exclusion of religious organizations is necessary to preserve the wall between church and state in Missouri.

How this case falls is obviously anyone’s guess, but it will likely turn on how well Trinity Church can craft a workable rule in its favor. If Trinity were to win, where would the line be drawn? Could governments bar funding for overtly religious conduct but not purely secular conduct? Could governments ban funding for chapel benches but not playground benches? Could it ban funding for matzah but not wonder bread? I think that Trinity has a very compelling argument in the playground context, but crafting a general rule is clearly the thorniest aspect of their position. To that end, Missouri certainly has the easier argument: a bright-line rule banning government funding of religious organizations is simple, it is workable, and it avoids having lower courts sorting out its Malbec from its Manischewitz.

Ultimately, only god knows how this one will end.

Thank you again to Mark Rienzi for speaking with me about this case. I really appreciate it.