Thursday, March 27, 2014

Facts in the Case

Hon. Bernard A. Friedman, a federal district court judge in Detroit, has just decided that Michigan's ban on same-sex marriages violates the Constitution of the United States. What would Holmes say?

He could not have imagined the circumstances under which such a question came before a federal court, and Judge Friedman's reasoning would have been wholly unfamiliar to him; yet Holmes would have something to tell us about the case. Holmes thought the law of the future would be based on scientific understanding. Judge Friedman is one of many district court judges who are taking a hard look at the factual basis of statutes. He held that Michigan's same-sex marriage ban was not "rationally related to any conceivable legitimate governmental purpose." That sounds harsh and extreme, but it is lawyer's language. In ordinary speech, one would say that the state's witnesses failed to provide sufficient evidence that there was a factual basis for the claimed purpose of the state's marriage ban.

A state government may not restrain a person's liberty without some acceptable purpose. In this case, the State of Michigan forbade two women from jointly adopting their three children, solely because the women were not and could not be married to each other. Judge asked the State of Michigan to justify its refusal to accept a marriage between the women, and the state's witnesses were unable to express any acceptable reason for discriminating against the couple, solely because of their sex. 
The sponsors of marriage bans in state after state claim that same-sex marriages are bad for children. This has been an effective advertising strategy in support of popular initiatives. The first important defeat for that strategy was suffered in California, in the Proposition 8 case, just under four years ago, when the factual basis of this claim was challenged. In that case, Judge Vaughan Walker held a trial, to determine whether there was a factual basis for any of the claims made in support of California's marriage ban. After making careful findings of fact, he concluded that history and social science supported the conclusion that children raised by same-sex couples were no different from those raised in heterosexual marriages, and there was some evidence that recognizing the marriages of same-sex partners would be beneficial to the children that they raised. Moral or religious objections to homosexuality were not acceptable reasons for legal discrimination against same-sex couples. Only some material purpose could justify infringing constitutional rights: the state needs a reason before it can discriminate. The California marriage ban accordingly was held to lack a rational basis, and was invalidated. (Appeals were eventually dismissed by the Supreme Court on procedural grounds,and Judge Walker's opinion is no frequently cited.)

In Detroit, Judge Friedman followed Judge Walker's lead, and ordered a trial to determine whether the State of Michigan had a factual basis for the claims it made in support of its ban on same-sex marriage. Forced to present evidence, the State of Michigan offered only familiar, shopworn arguments: marriages between homosexual parents somehow would be bad for children. In the usual manner of a judge weighing evidence, Judge Friedman found the state's evidence wholly without credibility. 

What would Holmes say? Legislation, he thought, should be based on reasonable judgments about the evil to be corrected and the results to be achieved. In talks given in the 1890s he expressed the hope that the social sciences would guide lawmakers in their work. Unfortuantely, the judges of his day were offered the pseudo-science of "eugenics." The social sciences have begun to earn that title, however, and district court judges of today, whose job it is to identify facts and draw conclusions from them, are better educated in such matters and will follow Judge Walker's lead and cast a critical eye, informed by a better understanding of what counts as fact, on the claims made on behalf of invidious discrimination.

Wednesday, March 26, 2014

Corporate Consciences?

What would Holmes say about yesterday's dispiriting oral arguments in Hobby Lobby and associated cases? The justices seem to be inclined to accept the argument that a federal statute, the Religious Freedom and Restoration Act, can be interpreted to extend  religious freedom to business corporations, allowing their to refuse to pay for health insurance for their employees. The statute applies to "persons," and it seems that the Court now understands that word to mean, in every context, an entity that for most purposes (except for voting or holding office) has the rights of a human being. Sigh. This all begins with the Fifth and Fourteenth Amendments, which say that no "person" may be deprived of property without due process of law. This has always been understood to protect the property of business corporations from arbitrary confiscation, corporations having been considered by the English common law to be artificial "persons." The Supreme Court in recent years, partly to remedy its failure to give substance to the constitutional "privileges and immunities" of citizens of the United States, has imported fundamental rights enumerated in the first eight amendments into the realm protected by the "due process of law" clauses of the Fifth and Fourteenth Amendments. Consequently, human rights, and not only property rights, are protected and may not be enfringed without due process of law. It makes no sense, however, to read this modern exercise in interpretation into the old common-law concept of a property-owning corporation. Neither the Congress that approved the amendments, nor the Congress that wrote RFRA, could have meant to extend human rights to business corporations simply by using the word "persons."

Corporations today are creatures of state law, chartered for specific purposes and authorized to carry out only the purposes for which they are created. Metaphysical notions embedded in the common law of fifteenth century England should be forgotten. The common law, Holmes long ago reminded us, is not a "brooding omnipresence in the sky," it was a set of ideas derived from the decisions of English judges. The Queen of England is a corporation sole, under the English common law, so that the existence of the monarch as the embodiment of the nation is not interrupted by her death. But the corporation sole, the metaphysical extension of a human being, does not exist in American law, and certainly does not exist in state corporate licensing laws. 

Business corporations have the right under state law to own property, the Fourteenth Amendment protects that right, and Congress may enforce the amendment through appropriate legislation. But a business corporation does not have human rights, and it is absurd to think that Congress meant to confer religious freedom on a mechanism devised for the conduct of business. A corporation does not have a conscience, and does not have a right to practice a religion unless that is a purpose for which it is chartered. Religious organizations are exempt from Obamacare requirements that conflict with their purposes. The owner of a business has no claim to impose his own beliefs on those subject to the authority of his business corporation, a convenience he may use to limit his liability and to aggregate capital, but which he may not use to practice his religion, or impose it on the corporations employees.