Brickbat: Preach It!


A young preacher

Georgia Gwinnett College has agreed to pay $800,000 to settle a lawsuit brought by two students who were barred from talking to other students about their Christian faith or passing out literature in common areas of campus. Officials told Chike Uzuebunam he could speak only in two free speech zones that had to be reserved in advance and were only open a few hours a week. Joseph Bradford, another student who wished to preach on campus, later joined Uzuebunam in the suit against the college.

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Justice Thomas and Loving v. Virginia

Justice Thomas is married to a white woman. And the couple lives in Virginia. Prior to the Supreme Court’s decision in Loving v. Virginia, the law of the Commonwealth criminalized interracial marriage. In the wake of Dobbs, critics have tried to hoist Justice Thomas on his own petard: Oh yeah, you would overrule Obergefell, but what about Loving? Indeed, Justice McDonald of the Connecticut Supreme Court, who is in a same-sex marriage, got in on the fun with some wordplay:

“Mr. Justice Thomas had much to say today about my loving marriage. Oddly he didn’t have much to say about his ‘Loving’ marriage.”

This argument was predictable, and flawed.

First, Justice Thomas already addressed the status of Loving in his Obergefell dissent. And he expressly distinguished Loving from Obergefell.

Petitioners’ misconception of liberty carries over into their discussion of our precedents identifying a right to marry, not one of which has expanded the concept of “liberty” beyond the concept of negative liberty. Those precedents all involved absolute prohibitions on private actions associated with marriage. Loving v. Virginia, 388 U. S. 1 (1967), for example, involved a couple who was criminally prosecutedfor marrying in the District of Columbia and cohabiting in Virginia, id., at 2–3. [FN5] They were each sentenced to a year of imprisonment, suspended for a term of 25 years on the condition that they not reenter the Commonwealth together during that time. Id., at 3. [FN6]

[FN5] The suggestion of petitioners and their amici that antimiscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate. “America’s earliest laws against interracial sex and marriage were spawned by slavery.” P. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America 19 (2009). For instance, Maryland’s 1664 law prohibiting marriages between ” ‘freeborne English women’ ” and ” ‘Negro Sla[v]es’ ” was passed as part of the very act that authorized lifelong slavery in the colony. Id., at 19–20. Virginia’s antimiscegenation laws likewise were passed in a 1691 resolution entitled “An act for suppressing outlying Slaves.” Act of Apr. 1691, Ch. XVI, 3 Va. Stat. 86 (W. Hening ed. 1823) (reprint 1969) (italics deleted). “It was not until the Civil War threw the future of slavery into doubt that lawyers, legislators, and judges began to develop the elaborate justifications that signified the emergence of miscegenation law and made restrictions on interracial marriage the foundation of post-Civil War white supremacy.” Pascoe, supra, at 27–28. Laws defining marriage as between one man and one woman do not share this sordid history. The traditional definition of marriage has prevailed in every society that has recognized marriage throughout history. Brief for Scholars of History and Related Disciplines as Amici Curiae 1. It arose not out of a desire to shore up an invidious institution like slavery, but out of a desire “to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world.” Id., at 8. And it has existed in civilizations containing all manner of views on homosexuality. See Brief for Ryan T. Anderson as Amicus Curiae 11–12 (explaining that several famous ancient Greeks wrote approvingly of the traditional definition of marriage, though same-sex sexual relations were common in Greece at the time).

[FN6] The prohibition extended so far as to forbid even religious ceremonies, thus raising a serious question under the First Amendment’s Free Exercise Clause, as at least one amicus brief at the time pointed out. Brief for John J. Russell et al. as Amici Curiae in Loving v. Virginia, O.T. 1966, No. 395, pp. 12–16.

I hope that distinction will suffice. And I trust Justice McDonald can read the Obergefell dissent to learn Justice Thomas’s views on Loving.

Second, Loving was premised on both the Equal Protection Clause and the Due Process Clause. Even if you reject substantive due process, you could still find that Loving reached the correct result on the basis of the Equal Protection Clause. After all, the law literally treats people differently on the basis of their race. Two white people can get married, but a white person and a black person cannot. Even the most conservative jurists would deem such a law unconstitutional.

Third, there is an insinuation lurking in the background of the claim: Justice Thomas did not talk about Loving because doing so would undermine his own marriage. Or, stated differently, Justice Thomas cannot be neutral on the topic of interracial marriage, so he simply ignored the case; thus he is a hypocrite. This charge is perhaps the most pernicious. And it is not new. During the Prop 8 litigation, there was an effort to disqualify Judge Vaughn Walker because he was a gay man who was in a long-term relationship with another man. The defenders of Prop 8 claimed that Judge Walker could not possibly handle the case objectively because he stood to benefit personally from a ruling that Prop 8 was unconstitutional. Ultimately, Walker did not recuse. And he based his decision on a long line of cases involving black judges, who likewise refused to recuse in racial discrimination cases. I like to think that Judge Walker, like Justice Thomas, could objectively assess cases that could affect their personal relationships.

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When Is Government Official’s Blocking Commenter from Social Media Page “State Action”?

From Judge Amul Thapar’s Sixth Circuit opinion in Lindke v. Freed today, joined  by Judges Ralph Guy and Chad Readler:

Like many Americans, James Freed joined Facebook to connect with friends and family. He created a Facebook profile—a private account limited to his “friends”—and used it for years. But eventually, he grew too popular for Facebook’s 5,000-friend limit on profiles. So Freed converted his profile to a “page,” which has unlimited “followers” instead of friends. His page was public, and anyone could “follow” it; for the page category, Freed chose “public figure.”

In 2014, Freed was appointed city manager for Port Huron, Michigan. So he updated his Facebook page to reflect his new title. In the “About” section, he most recently described himself as “Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.” Freed listed the Port Huron website as his page’s website, the City’s general email for “City Administration and Staff” (CommunityComments@PortHuron.org) as his page’s contact information, and the City Hall address as his page’s address.

Freed was an active Facebook user whose page featured a medley of posts. He shared photos of his daughter’s birthday, his visits to local community events, and his family’s weekend picnics. He also posted about some of the administrative directives he issued as city manager. And when the Covid-19 pandemic hit in spring 2020, he posted about that too, sharing the policies he initiated for Port Huron and news articles on public-health measures and statistics.

Freed’s Covid-19 posts caught the attention of one disconcerted citizen, Kevin Lindke. Lindke didn’t approve of how Freed was handling the pandemic. He saw Freed’s posts about new policies and responded with criticism in the comments section. Freed didn’t appreciate the comments, so he deleted them. And Freed eventually “blocked” Lindke from the page, which kept Lindke from commenting on Freed’s page and its posts.

Lindke sued, claiming this blocking violated Lindke’s First Amendment rights, but the Sixth Circuit said no:

Freed’s Facebook activity was not state action. The page neither derives from the duties of his office nor depends on his state authority. In short, Freed operated his Facebook page in his personal capacity, not his official capacity….

First, no state law, ordinance, or regulation compelled Freed to operate his Facebook page. In other words, it wasn’t designated by law as one of the actual or apparent duties of his office…. [T]here’s nothing to suggest operating the page was Freed’s official responsibility.

Lindke disagrees, arguing that Freed maintained the page as part of his “job duties/powers as City Manager.” Though he identifies no state law or even practice tasking Freed with social-media activity, Lindke points out that Freed believes “regular communication with local businesses and residents is essential to good government.” And Facebook is one avenue to fulfill this “essential” task of communicating with constituents.

This argument proves too much. When Freed visits the hardware store, chats with neighbors, or attends church services, he isn’t engaged in state action merely because he’s “communicating”—even if he’s talking about his job. If Port Huron’s list of city-manager responsibilities mentioned operating a Facebook page to tell residents about city initiatives, that might be a different story. But Freed’s own off-handed reference to “regular communication” can’t render every communication state action.

Next, Freed’s page did not belong to the office of city manager. Freed created the page years before taking office, and there’s no indication his successor would take it over. Indeed, it would make little sense for the new city manager to take over a page titled “@JamesRFreed1.” …

Nor does Freed rely on government employees to maintain his Facebook page. Freed is the page’s only administrator—none of his staff have access to it. And there’s no evidence that staffers were involved in preparing content for Freed to use on the page, or that staff ever posted on Freed’s behalf.

Lindke argues that some photos Freed posted “would be impossible for Freed to have done himself,” and thus concludes that government employees must be taking his photos. But even if that’s true, such minimal involvement isn’t enough to transform a personal page into an official one.

It could be different if Freed’s employees designed graphics specifically for the page and no other use. But snapping a few candids at a press conference is routine—not a service Freed accesses by the “authority of his office.” Indeed, his staff would likely do this even if Freed didn’t have a Facebook page. Plus, even if staff took photos at Freed’s direction, that would be de minimis help—not enough to render the page state action. So staff support can’t prop up Lindke’s claim, either.

Lindke presents no other reason Freed’s Facebook activity relates to his job duties or depends on his state authority. Instead, he argues that we should find state action where “the presentation of the account is connected with the official’s position.” And understandably so—several other courts have used that approach, focusing on a social-media page’s purpose and appearance. See, e.g., Knight First Amend. Inst. v. Trump, 928 F.3d 226, 234–36 (2d Cir. 2019), vacated as moot sub nom. Biden v. Knight First Amend. Inst., 141 S. Ct. 1220, 1220–21 (2021); Davison v. Randall, 912 F.3d 666, 680–81 (4th Cir. 2019); Campbell v. Reisch, 986 F.3d 822, 826–27 (8th Cir. 2021); Charudattan v. Darnell, 834 F. App’x 477, 482 (11th Cir. 2020) (per curiam).

Drawing on those opinions, especially the Second Circuit’s analysis in Knight First Amendment Institute v. Trump, Lindke claims that Freed used the “trappings of an official, state- run account” to give the impression that the page operated under the state’s imprimatur.

In support of this argument, Lindke points to Freed’s use of a city address, email, and website on the Facebook page, along with a profile photo featuring Freed wearing his city-manager pin and his frequent use of “we” and “us.” But these “trappings” weren’t the only facts the Second Circuit relied on in Knight. Indeed, that opinion emphasized the “substantial and pervasive government involvement with, and control over,” President Trump’s Twitter account.

No official account directs users to Freed’s page, as the White House’s Twitter account did in that case. And as discussed above, there’s no evidence Freed used government employees to maintain the account, as President Trump did there. So even on Knight‘s terms, the presentation-based factors Lindke identifies might not be enough….

[T]he factors Lindke points to resemble the factors we consider in assessing when police officers are engaged in state action. That is, Lindke’s focus on the page’s appearance seems akin to considering whether an officer is on duty, wears his uniform, displays his badge, identifies himself as an officer, or attempts to arrest anyone.

But the resemblance is shallow. In police-officer cases, we look to officers’ appearance because their appearance actually evokes state authority. We’re generally taught to stop for police, to listen to police, to provide information police request. And in many cases, an officer couldn’t take certain action without the authority of his office—authority he exudes when he wears his uniform, displays his badge, or informs a passerby that he is an officer. So in those cases, appearance is relevant to the question whether an officer could have acted as he did without the “authority of his office.” Here, by contrast, Freed gains no authority by presenting himself as city manager on Facebook. His posts do not carry the force of law simply because the page says it belongs to a person who’s a public official.

That’s why we part ways with other circuits’ approach to state action in this novel circumstance. Instead of examining a page’s appearance or purpose, we focus on the actor’s official duties and use of government resources or state employees. As explained above, these anchors are rooted in our circuit’s precedent on state action. And they offer predictable application for state officials and district courts alike, bringing the clarity of bright lines to a real-world context that’s often blurry.

But our state-action anchors are missing here. Freed did not operate his page to fulfill any actual or apparent duty of his office. And he didn’t use his governmental authority to maintain it. Thus, he was acting in his personal capacity—and there was no state action….

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The “Judges of Wisdom” and the “Mystical Aphorisms of the Fortune Cookie”

The Dobbs dissent made little effort to defend the handicraft of Justice Blackmun in Roe. And the dissenters didn’t bother to endorse the “mystery of human life” pablum from Casey. But Justices Breyer, Sotomayor, and Kagan did heap praise on the stare decisis discussion from Casey–in particular, the focus on the Court’s “legitimacy.”

The joint dissenters wrote that overruling Roe would extract a “terrible price.”

Casey itself made the last point in explaining why it would not overrule Roe—though some members of its majority might not have joined Roe in the first instance. . . . And to overrule for that reason? Quoting Justice Stewart, Casey explained that to do so—to reverse prior law “upon a ground no firmer than a change in [the Court’s] membership”—would invite the view that “this institution is little different from the two political branches of the Government.” No view, Casey thought, could do “more lasting injury to this Court and to the system of law which it is our abiding mission to serve.” For overruling Roe, Casey concluded, the Court would pay a “terrible price.”

Next, the joint dissenters wrote an encomium for Justices O’Connor, Kennedy, and Souter.

The Justices who wrote those words—O’Connor, Kennedy, and Souter—they were judges of wisdom.

We learn that Justices O’Connor, Kennedy, and Souter are “judges of wisdom.” For evidence of this wisdom, let me quote from Casey.

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

I know that the joint dissenters are fond of quoting from Justice Scalia. His rebuke from Obergefell is apt:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Casey did not exude “wisdom.” Nor did it demonstrate judging for that matter. Casey demonstrated a political calculation of the worst sort–engage in blatant misreading of precedent, carve a new rule out of whole cloth, and hope things work out. Not much wisdom here. Perhaps, to borrow from Fifth Circuit lingo, they exhibited minor wisdom.

The joint dissenters continue:

[Justice O’Connor, Kennedy, and Souter] would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver. But if there were awards for Justices who left this Court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those Justices up.

There is a lot to unpack here. First, the joint dissenters have launched an attack on their recently-nominated colleagues who apparently passed an “ideological purity” and “deliver” the expected results to appease “some court watchers” (me!). (FYI, none of them pass my ideological purity test.) This statement is as much a rebuke of Justice Gorsuch, Kavanaugh, and Barrett–the young and the restless–than it is a praise of O’Connor, Kennedy, and Souter. Then again, we got the latter three because of the decisions of the former three. No more Souters!

Second, the joint dissenters charge that O’Connor, Kennedy, and Souter would not win any awards or prizes. Oh come on. In light of Casey and related cases, these judges were praised at every opportunity. There is actually a Wikipedia page that lists all the prizes and honorary degrees that Sandra Day O’Connor received. They are not lacking for honors. Liberals love conservatives who vote with liberals.  You don’t make it to the cover of Time Magazine by standing for conservative judicial principles.

Third, what the joint dissenters meant is that O’Connor and Kennedy would not receive praise from conservatives. Fair point. But when you are accepted at every level of elite society, who needs to hobnob at the Mayflower with other FedSoc grunts?

In my view, one of the most significant aspects of Dobbs is that we can move past the entire “stare decisis” and “legitimacy” debate. The Court did the deed. Roe is gone. The chips will fall where they may. The political process will work itself through. But the Justices themselves will no longer feel constrained by the Casey fiction that decisions must be made with regard to popular opinion. Courage “under fire” means ruling without regard to those public currents.

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Glenn Youngkin’s Proposed 15-Week Abortion Ban Speaks to Abortion Moderates


Virginia Gov. Youngkin speaking at podium

On Friday, Virginia Gov. Glenn Youngkin (R) announced that he would push for legislation restricting most abortions after 15 weeks. Shortly following the Supreme Court’s decision repealing Roe v. Wade (1973), Youngkin’s office said that it would enlist four Republican lawmakers to draft a bill banning abortions in the state after 15 weeks, with exceptions for rape, incest, and cases where the mother’s life is endangered. Youngkin also indicated that he would be willing to compromise on a 20-week ban.

“I’m proud to be a pro-life Governor and plan to take every action I can to protect life,” Youngkin said in a Friday press release. “The truth is, Virginians want fewer abortions, not more abortions. We can build a bipartisan consensus on protecting the life of unborn children, especially when they begin to feel pain in the womb, and importantly supporting mothers and families who choose life.”

Youngkin’s proposal is unlikely to draw opposition from abortion moderates. A 2022 Pew Research poll indicated that 71 percent of Americans believe abortion should be legal in at least some circumstances. Gallup reported similar numbers in 2018 but noted that while “six in 10 U.S. adults think abortion should generally be legal in the first three months of pregnancy….Support drops by about half, to 28%, for abortions conducted in the second three months, and by half again, to 13%, in the final three months.”

These abortion moderates do not support hardline Republican prohibitions on all abortions or progressive policies that would allow abortions in the third trimester. They are the kind of voters who support making abortion “safe, legal, and rare,” the policy tagline coined by former President Bill Clinton in the 1990s.  

Despite the political success of Clinton’s position, state legislators have taken increasingly extremist positions on abortion. Following Friday’s ruling, 10 states quickly banned abortion with no exceptions for rape and incest, while six other states currently allow abortion with no gestational limit. 

While some Republicans vow to punish women who obtain abortions with the death penalty, Democratic politicians have regularly engaged in verbal gymnastics to avoid opposing any limits to abortion at all—including in the latest stages of pregnancy.

In contrast, Youngkin’s proposal offers a moderate solution to the issue of abortion. His 15-week ban speaks to a significant segment of public opinion, as well as conforms to the standard in much of Europe. 

A 15-week ban would still allow for the vast majority of abortions to take place, as 2019 CDC data found that 92.7 percent of abortions are performed at less than 13 weeks gestation. However, it prohibits the procedure in much of the second and all of the third trimester. 

The proposal has already earned criticism from both pro-choice and pro-life legislators. At an abortion rights rally on Friday, state Sen. Jennifer L. McClellan (D–Richmond) said, “We’re going to say no. We’re going to say to the party that professes to care about parental rights, you will not insert yourself into the decision whether to become a parent in the first place.” Conversely, congressman Bob Good (R–Va.) took to Twitter to write that “[i]n Virginia, let’s not pretend the Democrats will agree to ANY restrictions on abortion. No point in working alone so modestly for ‘pain capable’ legislation.”

For Virginians who find themselves stuck between two increasingly radical camps, Youngkin’s approach could offer a compelling alternative for handling abortion policy in a post-Roe world—one which prioritizes moderates’ concerns for both female bodily autonomy and the lives of developing fetuses. 

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Abortion and “the People and Their Elected Representatives”: Abortion-Related Initiatives and Referenda

In Dobbs, the Court concluded that the Constitution doesn’t speak on whether abortion should or shouldn’t be legal, and that therefore the question should be returned “to the people and their elected representatives.” But if we look at national surveys, it appears that the people sharply support abortion rights in the first three months of pregnancy (60%-29% according to one recent poll) and oppose “midterm abortions” (by 56%-30%) as well as “late-term abortions” (67%-19%). That suggests a result quite different from Roe (which basically drew the line at six months) and even Casey (which drew the line at viability, likely around five to five-and-half months). Yet it also suggests a result vastly different from total prohibition on abortion (even with exceptions for the life of the mother and possibly health of the mother, rape, incest, and the like), which are being implemented in some states and likely to be implemented in some more.

One explanation for this, of course, is interstate variation in public attitudes (see, e.g., this post by Louis Jacobson [Sabato’s Crystal Ball]). But in some of states, part of it may be the difference between the views of “the people” and “their elected representatives.”

Such differences are familiar, and need not be malign:

  1. In some fields, the elected representatives may just be more knowledgeable than individual voters, since we hire them (and their staffs) to look closely at issues that individual voters would rarely be expert on.
  2. But even in fields where the key questions are moral rather than empirical, well-organized, committed political minority groups can often overcome less organized, less devoted political majority opposition. That’s the reason, I think, for why many gun control proposals that seem to enjoy majority support are blocked in the legislative process, and also, on the other side, why many race-based affirmative action programs that seem to be opposed by the majority of voters can succeed in the legislative process. (This phenomenon is related to, though likely not entirely exhausted by, Mancur Olson’s The Logic of Collective Action, and it goes beyond just concentrated economic interests.) Again, that isn’t necessarily bad; but it’s there.
  3. And in some contexts, a past legislative (or popular) majority might have enacted a law, which remains on the books, and that enjoys the support of legislative inertia: Even if there might be majority public support for repealing it or changing it, it often takes supermajority support for the legislature to act—given various requirements such as having the law be passed by both houses of the legislature and signed by the governor, state-level filibusters in some states, or other such features. The legislature might thus do nothing, even if a slight majority of voters wants it to act.

Direct democracy is a standard means of getting around this phenomenon. In many American states, for instance, voters can propose initiatives—either statutes or constitutional amendmentswhich can then be enacted by direct popular vote. And in many states, voters can call for referenda, in which newly enacted legislation can be blocked by direct popular vote. (In many states, the legislature can also place measures on the ballot for public vote, but that of course involves some degree of concurrence between the legislature and the public, rather than the public’s ability to trump legislative action or inaction.) I expect this to happen quite a bit with regard to abortion, at least in many states.

I hope to blog more about such matters in the future, but for now I’m delighted to report that Ryan Byrne of Ballotpedia has very kindly come up with some excellent and specific materials on this very question, which I’m very glad to be able to pass along:

What initiatives have been proposed for the ballot in 2022?

There are two active initiative campaigns—one in Michigan, and one in Arizona—to provide that “Every individual has a fundamental right to reproductive freedom …” Both initiatives would define the term reproductive freedom to include abortion, as well as “decisions about all matters relating to pregnancy.” There is also an active campaign, in Colorado, to prohibit abortion except in cases to save the mother’s life, when the fetus is no longer alive, and for ectopic pregnancies.

Link to lists of certified and proposed abortion-related measures in 2022

Could we see additional ballot initiatives that aren’t yet proposed on the ballot in 2022?

Deadlines for signature filings have either passed or are before July 15 in 22 of 24 states that allow citizen-initiated statutes or amendments. The two states with later deadlines are Colorado (August 8) and Oklahoma (August 30). Overall, there isn’t much time left for new initiative proposals this year. Some states allow initiatives on odd-year ballots, including Maine, Ohio, and Washington. Others will need to propose initiatives that can appear on ballots in 2024.

Legislatures also have the power to put issues before voters. There will be at least four legislative referrals addressing abortion this year.

  • In Vermont, voters will decide on a constitutional amendment to provide that “an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course.”
  • In Kansas, voters will decide on a constitutional amendment on Aug. 2. The constitutional amendment would provide that nothing in the state constitution creates a right to abortion or requires government funding of abortions and declares that the Legislature has to power to pass laws regarding abortion.
  • In Kentucky, a similar amendment is on the ballot but will be decided in November. The constitutional amendment would provide that nothing in the state constitution creates a right to abortion or requires government funding of abortions.
  • In Montana, voters will decide on a measure to provide, in state law, that infants born alive at any stage of development are legal persons. The ballot measure would also require medical care to be provided to infants born alive after an induced labor, cesarean section, attempted abortion, or another method.

There is one potential legislative referral that has passed one chamber and is awaiting a vote in the second:

  • In California, the Legislature is considering a constitutional amendment declaring that the “state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions,” including “their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives.”

 

“Any thoughts on how well-equipped various groups would be to call for referenda about new abortion restrictions, for which the timeline would of course be linked to the enactment of a restriction?”

Here is some context about whether we could see additional veto referendums this year.

Citizens can propose a veto referendum in 23 states. These measures put adopted legislation before voters to uphold or repeal. This varies from state to state, but, in 18 states, the signature drive timeframe is 90 days after a session is over or after the governor signs a bill.

Legislatures have adjourned their regular sessions in 41 states. Of the 9 remaining states, four provide for veto referendums—California, Massachusetts, Michigan, and Ohio. Of these 4, one is a Republican trifecta—Ohio. As most state legislatures have adjourned, there are limited opportunities for veto referendums against abortion legislation passed this year. However, there could be special legislative sessions to address abortion post-Dobbs, including in states that allow for veto referendums, such as Nebraska and South Dakota.

Here is some context about how well-equipped groups are. We cannot answer that question, but I can provide some notes about initiative and referendum campaigns in general.

Campaigns that have described themselves as pro-life have organized in-kind contributions and volunteers, thus keeping their signature costs low compared to the average ballot initiative campaign. Since 2010, these campaigns have spent an average of 62 cents per required signature (three were volunteer-driven and two others spent $1.52 per required signature and $1.59 per required signature). This is lower than the average for citizen-initiated measures during this period of $6.46 per required signature.

How do campaigns that have described themselves as pro-choice or pro-reproductive rights compare? We can’t make the comparison because there haven’t been signature drives associated with these groups since 1991 (see timeline). With active signature drives in Arizona and Michigan, 2022 could be the first year since 1991 in which these campaigns petition an issue to the ballot. In Michigan, the campaign Reproductive Freedom for All reported that more than 10,000 people signed up to volunteer following the opinion draft leak on May 2. On Friday, the campaign tweeted that $100,000 in donations were received and an additional 4,500 volunteer sign-ups. Signatures are due on July 11 in Michigan.

Link to History of abortion ballot measures

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Scalia’s “Prophecy” in Lawrence And The Joint Dissent in Dobbs

Lawrence v. Texas was decided in 2003. Only two members remain from that Court–Justices Thomas and Breyer. Well, at least Breyer is on the Court for a few more days. Justice Kennedy wrote the majority opinion in Lawrence. At the end of the decision, Justice Kennedy assured everyone that striking down the ban on sodomy would not lead to striking down traditional marriage laws.

It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

In dissent, Justice Scalia called bullshit.

 At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Do not believe it.

We all knew the logical end-point of Lawrence. Really, that train started with Romer. Justice Kennedy’s assurance was not worth the paper it was printed on. And who joined Lawrence? Justice Breyer.

Fast-forward a decade to Windsor. Once again, Justice Kennedy assured everyone that striking down DOMA would not put in jeopardy traditional marriage laws. The penultimate sentence of the opinion reads:

This opinion and its holding are confined to those lawful marriages.

Once again, Justice Scalia called bullshit. Don’t believe it.

 The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.” Ante, at 26, 25. I have heard such “bald, unreasoned disclaimer[s]” before. Lawrence, 539 U. S., at 604. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Id., at 578. Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” ante, at 23—with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.

And who joined Windsor? Justice Breyer, as well as newbies Justice Sotomayor and Kagan. Of course, two years later, Obergefell v. Hodges declared unconstitutional traditional marriage laws that predate the Age of Antiquity (the Age of Antiquity!). Why not? They had the votes and could get away with it.

Now, fast-forward to Dobbs. Here, the dissenters argued that Justice Alito and his ilk cannot be trusted on Lawrence and Obergefell. Their repeated promises that those precedents are safe are illusory. And how do we know the conservatives can’t be trusted? Part I of the joint dissent–which I think was written by Justice Kagan–highlights Justice Scalia’s Lawrence dissent:

Nor does it even help just to take the majority at its word. Assume the majority is sincere in saying, for whatever reason, that it will go so far and no further. Scout’s honor. Still, the future significance of today’s opinion will be decided in the future. And law often has a way of evolving without regard to original intentions—a way of actually following where logic leads, rather than tolerating hard-to- explain lines. Rights can expand in that way. Dissenting in Lawrence, Justice Scalia explained why he took no comfort in the Court’s statement that a decision recognizing the right to same-sex intimacy did “not involve” same-sex marriage. That could be true, he wrote, “only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.” Score one for the dissent, as a matter of prophecy. And logic and principle are not one-way ratchets. Rights can contract in the same way and for the same reason—because whatever today’s majority might say, one thing really does lead to another. We fervently hope that does not happen because of today’s decision. We hope that we will not join Justice Scalia in the book of prophets. But we cannot understand how anyone can be confident that today’s opinion will be the last of its kind. . . . Even before we get to stare decisis, we dissent.

We should all learn from the prophecy of St. Nino. (This past week revealed at least three judicial miracles for legal canonization–overruling Roe in Dobbs, overruling Lemon in Kennedy, and expanding 2nd Amendment in Bruen!) But there is a special awkwardness for Justice Breyer. He joined the Lawrence dissent which promised, scout’s honor, that marriage laws were not at issue. And there is similar awkwardness for Justices Sotomayor and Kagan, who pinky-sweared that Windsor would not lead to the nullification marriage laws. None of us believed them. Not for a second.

But I do believe Justice Alito, et al. The outrage about Griswold and Lawrence are mostly messaging. The joint dissent had virtually nothing to say about Roe and Casey being correct decisions. Rather, they had to spend nearly eighty pages talking about related decisions that face no realistic prospect of being overruled. There is no march on Washington to ban birth control. Indeed, even as Griswold was being decided, the Connecticut legislature was in the process of repealing the law. A step that Justice Douglas made unnecessary. And with regard to Lawrence, the Harris County District Attorney ignored everyone’s advice to prosecute the case. There was simply no interest in Texas, or anywhere else, to prosecute someone for engaging in a consensual sex act. Finally, in the wake of Obergefell, societal acceptance of gay marriage has steadily increased. Even most social conservatives have given up on the issue. Take a look at who is the Chairman of the National Organization for Marriage!

There were barely five votes to overrule Roe. I don’t think there is more than one vote to even grant cert to reconsider these other cases. Let’s move on.

The post Scalia's "Prophecy" in <i>Lawrence</i> And The Joint Dissent in <i>Dobbs</i> appeared first on Reason.com.

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A New Jersey Town Wants To Charge This Woman $5,000 To Sell Cookies


Cookies with caution signs against red background

Maria Winter thought she could supplement her son’s college fund by selling homemade cookies. She has a talent for baking and knows her products are well-received, having made and decorated cookies for students at the elementary school where she teaches.

But when it came time for Winter to fulfill the application requirements and pay the fees associated with launching a home-baked goods business in Somerville, New Jersey, she quickly learned how byzantine the licensing process can be for home bakers.

Somerville officials denied her application for a home business zoning permit, telling her that she needed to secure a zoning variance. According to MyCentralJersey.com, which first reported on Winter’s story, the borough said she had to pay a $1,000 application fee and put $4,000 into a borough escrow account. It also required that she publish a public notice in the local newspaper and notify all neighbors within 200 feet of her property that her application would undergo a public hearing. “Going through a public hearing is a lengthy, expensive process,” says Rob Peccola, an attorney for the Institute for Justice (IJ).

What makes Winter’s roadblocks especially mind-boggling is the fact that state requirements for home bakers are so comparatively lenient. The state-issued permit for home bakers—also called cottage food operators—costs $100 and is valid for two years, allowing bakers to sell goods up to an annual gross income of $50,000. “Somerville’s requirements are out of step with New Jersey state law and serve no rational purpose,” said Peccola in a press release. “They simply keep people like Maria from earning an honest living doing something that is common and legal across the state.”

“It’s very confusing to me that the state is saying I can do something but my town is saying I can’t and can’t even give me a reason why,” Winter told MyCentralJersey.com. “I’m trying to be an upstanding citizen and nothing is happening. I’m just frustrated.”

Until last October, New Jersey was the only state in the country that banned home bakers from selling their goods. Bakers risked fines of up to $1,000 for unlicensed sales. New Jersey’s current licensing scheme isn’t liberal by any means: Eligible products are limited to a list of 18 food categories (the baker must submit an application to sell anything that falls outside those options), producers can’t sell their products at grocery stores, and most states have higher caps on yearly sales. Still, well over 500 cottage food operators have secured permits in New Jersey since the ban was lifted, a sign of the once-stifled entrepreneurial spirit that can now flourish in much of the state.

Somerville may yet catch up to statewide standards. Peccola has sent a letter to Somerville officials urging them to reform licensing policies so that home businesses can flourish. He noted that Somerville’s policies make it “almost impossible” to apply for a home baking license, and worse, “would likely be unconstitutional under the state and federal constitution.” Somerville Borough Administrator Kevin Sluka has reportedly recommended that the borough planning board review the draconian ordinance that creates a contradiction between Somerville’s zoning policies and New Jersey’s home baking law.

States have made great strides in recent years to liberalize their cottage food laws, with Oklahoma, Alabama, and Montana among those making it easier for home producers to make a living. Whether Somerville will hang up its half-baked regulatory scheme remains to be seen.

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What’s Wrong With Abortion Federalism?


woman holds sign in front of supreme court

In this week’s Reason Roundtable, editors Peter Suderman, Katherine Mangu-Ward, Nick Gillespie, and special guest senior editor Damon Root unpack the long-awaited SCOTUS ruling in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade (1973).

1:31: Discussion on Dobbs v. Jackson Women’s Health Organization

39:06: “Lightning round” on SCOTUS decisions concerning guns and school choice

51:32: Weekly Listener Question: More than most political ideologies, many of the prominent libertarian thinkers were women—Ayn Rand, Rose Wilder Lane, Isabel Paterson, etc. I think it’s safe to say that the movement wouldn’t exist without them. But libertarianism today, fairly or not, is stereotyped as being almost all men, often men who are, shall we say, not the most socially adept. Why has that stereotype developed? And how do we, in practice, change both the impression and the actual amount of women in the movement? Bonus question: Katherine—which Roundtabler is like which Buffy the Vampire Slayer character? And why is Nick Cordelia Chase (or Faith, though mostly because of the leather jacket aesthetic)?

This week’s links:

Alito’s Abortion Ruling Overturning Roe Is an Insult to the 9th Amendment,” by Damon Root

Here Is a State-by-State Rundown of What Will Happen Now That SCOTUS Has Freed Lawmakers To Restrict Abortion,” by Jacob Sullum

Clarence Thomas Calls To ‘Reconsider’ Gay Marriage, Sodomy Rulings” by Scott Shackford

Outside the Supreme Court, Our First Glimpse of Post-Roe Politics,” by Christian Britschgi

Get Ready for the Post-Roe Sex Police!” by Nick Gillespie

In Defense of Roe,” by Nick Gillespie and Regan Taylor

Alito’s Leaked Abortion Opinion Misunderstands Unenumerated Rights,” by Damon Root

In Landmark 2nd Amendment Ruling, SCOTUS Affirms Right ‘To Carry a Handgun for Self-Defense Outside the Home’,” by Damon Root

School Choice and Religious Liberty Advocates Just Won Big at the Supreme Court,” by Damon Root

Send your questions to roundtable@reason.com. Be sure to include your social media handle and the correct pronunciation of your name.

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  • Announcing the Reason Rundown with Peter Suderman.

Audio production by Ian Keyser

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Music: “Angeline,” by The Brothers Steve

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SCOTUS Rules That Doctors Who Write Prescriptions in Good Faith Can’t Be Convicted of Drug Trafficking


Justice Stephen Breyer at a dedication ceremony on June 14, 2022

The Supreme Court today unanimously sided with two physicians who were convicted of drug trafficking based on opioid prescriptions that federal prosecutors portrayed as medically inappropriate. Six justices said the government is required to prove that a doctor “knowingly or intentionally” exceeded the authorization for medical use of controlled substances. Three justices disagreed with the majority’s legal analysis but concluded that a doctor cannot be convicted of drug trafficking if he acted in “good faith.”

The decision in Ruan v. United States sends both cases back to the lower courts so they can assess the defendants’ arguments that the instructions received by the juries that convicted them misstated the law seriously enough that they are entitled to new trials. But whether or not they prevail on those claims, the ruling represents an important limit on prosecutions that have long had a chilling effect on pain treatment. Physicians who prescribe opioids based on an honest belief that they are practicing good medicine now have less reason to fear that they will nevertheless face federal charges that could send them to prison for decades.

Kate Nicholson, executive director of the National Pain Advocacy Center, is “thrilled with the ruling,” which she says “entirely tracked the argument we made in our amicus curiae brief.” Under Ruan, she notes in an email, “doctors authorized to prescribe controlled substances can only be convicted for violating the Controlled Substances Act when they intend or know that they are prescribing in an unauthorized manner.” That requirement, she says, is especially important for “doctors treating patients in pain, who might otherwise be deterred from meeting the needs of their patients by the fear that disagreement with their medical judgment would subject them to serious criminal liability.”

The question for the Court was how to interpret 21 USC 841, a provision of the Controlled Substances Act (CSA). “Except as authorized by this subchapter,” Section 841 says, “it shall be unlawful for any person knowingly or intentionally” to “distribute” or “dispense” a controlled substance. The CSA authorizes physicians registered with the Drug Enforcement Administration (DEA) to prescribe controlled substances. But according to a CSA regulation, a valid prescription “must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.”

Xiulu Ruan, a board-certified Alabama pain specialist, was sentenced to 21 years in federal prison for violating Section 841 by prescribing opioid analgesics “outside the usual course of professional medical practice.” He was also ordered to pay millions of dollars in restitution and forfeiture. Casper, Wyoming, physician Shakeel Kahn, whose appeal was consolidated with Ruan’s, was sentenced to 25 years in prison for the same offense. In both cases, the prosecution argued that the defendants were legally indistinguishable from drug dealers, while the defendants argued that they wrote prescriptions in a good-faith belief that they were medically appropriate.

In Ruan’s case, the jurors were instructed that a doctor complies with the CSA when he acts “in good faith as part of his medical treatment of a patient in accordance with the standard of medical practice generally recognized and accepted in the United States.” They were also told that a doctor violates Section 841 when his actions “were either not for a legitimate medical purpose or were outside the usual course of professional medical practice.”

The U.S. Court of Appeals for the 11th Circuit sustained Ruan’s convictions. A doctor’s “subjectiv[e] belie[f] that he is meeting a patient’s medical needs by prescribing a controlled substance,” it said, is not a “complete defense” to charges under Section 841. Quoting an earlier decision, the 11th Circuit said “whether a defendant acts in the usual course of his professional practice must be evaluated based on an objective standard, not a subjective standard.”

In Kahn’s case, the jurors were told that he should be acquitted if he acted in “good faith,” meaning he made “an attempt to act in accordance with what a reasonable physician should believe to be proper medical practice.” As the trial court defined it, a finding of “good faith” required the jury to conclude that Kahn “acted in an honest effort to prescribe for patients’ medical conditions in accordance with generally recognized and accepted standards of practice.”

Kahn’s convictions also were sustained on appeal. To prove a CSA violation, the U.S. Court of Appeals for the 10th Circuit said, the government had to show either that Kahn “subjectively knew a prescription was issued not for a legitimate medical purpose” or that he “issued a prescription that was objectively not in the usual course of professional practice.”

As the appeals courts saw it, Ruan and Kahn were guilty unless they complied with an “objective” standard of medical care. The implication was that a physician could be convicted of drug trafficking even if he sincerely believed he was doing what a doctor should do.

During oral argument in March, several justices were clearly dismayed by the idea that a doctor could accidentally be guilty of crimes punishable by long prison sentences (up to 20 years per violation and 20 years to life if the offense results in “death or serious bodily injury”) and exorbitant fines (up to $1 million per offense). It is therefore not surprising that the Court ended up rejecting that theory, although the fact that every justice saw something wrong with the way such cases have been handled is striking evidence that the government’s traditional approach was unjust and seriously misguided.

The majority opinion by Justice Stephen Breyer, which was joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh, concludes that the phrase “knowingly or intentionally” should be read as applying not only to the act of dispensing a controlled substance but also to a doctor’s failure to do so “for a legitimate medical purpose…in the usual course of his professional practice.” Although that interpretation may be grammatically problematic, Breyer says, it is consistent with “a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state” in order to be guilty of a crime.

In the context of medical prescriptions, Breyer notes, “it is the fact that the doctor issued an unauthorized prescription that renders his or her conduct wrongful, not the fact of the dispensation itself. In other words, authorization plays a ‘crucial’ role in separating innocent conduct—and, in the case of doctors, socially beneficial conduct—from wrongful conduct.” Breyer says the “language of §841 (which explicitly includes a ‘knowingly or intentionally’ provision); the crucial role authorization (or lack thereof ) plays in distinguishing morally blameworthy conduct from socially necessary conduct; the serious nature of the crime and its penalties; and the vague, highly general language of the regulation defining the bounds of prescribing authority all support applying normal scienter principles to the ‘except as authorized’ clause.”

The Court therefore concludes that “the statute’s ‘knowingly or intentionally’ mens rea applies to authorization.” The implication, it says, is that “once a defendant meets the burden of producing evidence that his or her conduct was ‘authorized,’ the Government must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner.”

Does that mean that anything goes as long as a doctor claims he thought he was complying with the CSA? No, Breyer says, because the government can still “prove knowledge of a lack of authorization through circumstantial evidence.”

The government “argues that requiring it to prove that a doctor knowingly or intentionally acted not as authorized will allow bad-apple doctors to escape liability by claiming idiosyncratic views about their prescribing authority.” But Breyer notes that “the regulation defining the scope of a doctor’s prescribing authority does so by reference to objective criteria such as ‘legitimate medical purpose’ and ‘usual course’ of ‘professional practice.'”

While merely failing to satisfy those “objective criteria” is not enough to make a doctor guilty of violating Section 841, the extent of the deviation can be viewed as evidence that he knowingly violated the law. “As we have said before,” Breyer writes, “‘the more unreasonable’ a defendant’s ‘asserted beliefs or misunderstandings are,’ especially as measured against objective criteria, ‘the more likely the jury…will find that the Government has carried its burden of proving knowledge.”

In a concurring opinion joined by Justices Clarence Thomas and Amy Coney Barrett, Justice Samuel Alito rejects the argument that the phrase “knowingly or intentionally” applies to exceeding the CSA’s authorization for medical use. But he says the Court’s cases dealing with the Harrison Narcotics Tax Act, a predecessor to the CSA, indicate that a doctor cannot be convicted of violating Section 841 if he “writes prescriptions ‘in good faith.'” Alito therefore joins the majority in concluding that the decisions by the appeals courts should be vacated and that the cases should be sent back “for further proceedings.”

Alito also faults the majority for treating lack of authorization as an element of the offense rather than treating authorization as an affirmative defense. In his view, the burden should be on the defendant to prove it is more likely than not that he acted in good faith. The prosecution therefore would not have to disprove that claim beyond a reasonable doubt.

Despite these differences, all of the justices agreed that a doctor’s subjective good faith matters. While prosecutors can still introduce testimony indicating that a physician deviated from widely accepted medical practices, the point of such evidence will be to show that the defendant knowingly broke the law, not merely that other doctors would have made different decisions. Given the ongoing medical and scientific debates about how best to treat pain, that distinction is crucial.

“This is the most significant health care decision by the Supreme Court in 50 years,”  Lynn Webster, a former president of the American Academy of Pain Medicine, says in an email. “It is the first time the Court [has] interpreted the federal Controlled Substances Act and its application to a criminal case involving the good-faith defense in the context of prescribing. The Court correctly decided that a physician has a right to a good-faith defense.”

Webster notes that the Court’s holding means doctors cannot be convicted merely for departing from “the standard of care” as defined by the government. “This has been an egregious misinterpretation of the CSA,” he says. “Physicians have been afraid to prescribe controlled substances even with an appropriate indication for fear of a government expert testifying they believe it is not the standard of care. Standard of care should never be used to determine criminal conduct. That is a civil matter.”

Webster says the Court’s decision will “rein in the overzealous[ness] and lawlessness” of the DEA and the Justice Department. The decision’s beneficiaries, he says, “will be prescribers who are trying in good faith to help people,” plus their patients. “This is a monumental decision that will literally save lives,” he adds, “because fewer patients will be abandoned by their doctors for fear of losing their freedom.”

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