FRC Blog

What the Supreme Court(s) Said About Marriage: Part 3 (Washington)

by Peter Sprigg

June 25, 2015

At this writing, we are awaiting an imminent decision from the U.S. Supreme Court on a set of cases involving a claim that the Constitution requires states to permit civil marriages between persons of the same sex.

However, several Supreme Courts (state courts, that is) have already rejected similar arguments to those offered in Obergefell v. Hodges. Today, I present Part 3 of a four-part series with key excerpts from those decisions. Part 1 featured the earliest such decision, Baker v. Nelson (Minnesota, 1971). Part 2 featured the decision of Hernandez v. Robles (New York, 2006).

Today, we look at excerpts from Andersen v. King County, a 2006 decision by the Supreme Court in the State of Washington (legal citations are omitted or abbreviated).

The U.S. Supreme Court has said that individuals have a “fundamental right” to marry, as a “liberty” interest protected by the Due Process Clause of the Fourteenth Amendment. Advocates of redefining marriage argue that this “right” necessarily includes the right “to marry the person of their choice,” even if that person is of the same sex. The Washington court responded:

Nearly all United States Supreme Court decisions declaring marriage to be a fundamental right expressly link marriage to fundamental rights of procreation, childbirth, abortion, and child-rearing. In Skinner v. Oklahoma, (1942), involving invalidation of a nonconsensual sterilization statute, the Court said “[m]arriage and procreation are fundamental to the very existence and survival of the race.” In Loving [v. Virginia, 1967], the Court said that “[m]arriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival” (quoting Skinner). In Zablocki [v. Redhail, 1978], the Court invalidated on equal protection and due process grounds a statute that prohibited marriage for any resident behind in child support obligations. The Court noted that

[i]t is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships… . [I]t would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.

The Court also quoted the statements made in Skinner and Loving. See also, Maynard v. Hill, (1888) (marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress”).

This procreation emphasis is in contrast to the more adult-centered view of marriage promoted by those who would redefine marriage. In a footnote, the court declared that:

 … the right to marry is not grounded in the State’s interest in promoting loving, committed relationships. While desirable, nowhere in any marriage statute of this state has the legislature expressed this goal.

Like each of the supreme courts that have upheld one-man, one-woman marriage, the Washington court said that allowing infertile heterosexual couples to marry does not undermine the argument that the definition of marriage is rooted in interests related to procreation:

 … [A]s Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple’s willingness or ability to procreate. The facts that all opposite-sex couples do not have children and that single-sex couples raise children and have children with third party assistance or through adoption do not mean that limiting marriage to opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational basis.

For more information on the legal arguments regarding the redefinition of marriage see: “Marriage at the Supreme Court: Why One-Man, One-Woman State Laws Remain Constitutional.”

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One Hundred Forty-Four Years of Marriage

by Cordell Asbenson

June 24, 2015

Dr. Randy Olson recently released data (reported in the Washington Post) examining the rise and fall of marriages and divorces over the last 144 years. Using data from the Center for Disease Control’s (CDC) National Center for Health Statistics (NCHS), Dr. Olson compares the number of marriages and divorces per 1,000 people year by year. By analyzing these data–instead of the total number of marriages and divorces –Dr. Olson was able accurately to compare the rate of marriages and divorces over the past 144 years despite fluctuations in the population numbers.

The results of the data are disheartening, but expected.  It shows that the number of marriages in the United States has fallen consistently since the 1980s. What is more, the number of marriages has dropped to 6.8 per 1000 people, the lowest it has been since 1867, even lower than during the Great Depression.

Despite the fact that fewer people are getting married, intact marriages are as important now as they have ever been. To learn more about the importance of marriage for individuals, the economy, and society as a whole, visit the Marriage and Religion Research website: http://marri.us/home

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What the Supreme Court(s) Said About Marriage: Part 2 (New York)

by Peter Sprigg

June 24, 2015

At this writing, we are awaiting an imminent decision from the U.S. Supreme Court on a set of cases involving a claim that the Constitution requires states to permit civil marriages between persons of the same sex.

However, several Supreme Courts (state courts, that is) have already rejected similar arguments to those offered in Obergefell v. Hodges. Today, I present Part 2 of a four-part series with key excerpts from those decisions. Part 1 featured the earliest such decision, Baker v. Nelson (Minnesota, 1971).

The next three feature decisions by the highest court in three liberal states—New York, Washington, and Maryland. Unlike the Minnesota decision, each of these was handed down within the last ten years. Each of these states has since redefined marriage, but they have done so through the democratic process, not through judicial fiat. The U.S. Supreme Court should allow the same privilege to other states—the eleven which has chosen democratically to change their definition of marriage, and the thirty which have put a one-man-one-woman marriage definition in their state constitutions.

In Hernandez v Robles in 2006, the Court of Appeals of New York (the state’s highest court) addressed the rational basis which supports the definition of marriage as the union of a man and a woman (citations abbreviated):

The critical question is whether a rational legislature could decide that these benefits [of civil marriage] should be given to members of opposite-sex couples, but not same-sex couples… . We conclude … that there are at least two grounds that rationally support the limitation on marriage that the Legislature has enacted. Others have been advanced, but we will discuss only these two, both of which are derived from the undisputed assumption that marriage is important to the welfare of children.

First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It could thus choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other.

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unsatable relationships between people of the opposite sex present a greater danger than children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule—some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes—but the Legislature could find that the general rule will usually hold.

Later in its opinion, the New York court responded to the chief argument made against its conclusion that a one-man-one-woman marriage definition is rationally related to concerns about procreation and child-rearing:

Plaintiffs argue that a classification distinguishing between opposite-sex couples and same-sex couples cannot pass rational basis scrutiny, because if the relevant State interest is the procreation of children, the category of those permitted to marry—opposite-sex couples—is both underinclusive and overinclusive. We disagree.

Plaintiffs argue that the category is underinclusive because, as we recognized above, same-sex couples, as well as opposite-sex couples, may have children. That is indeed a reason why the Legislature might rationally choose to extend marriage or its benefits to same-sex couples; but it could also, for the reasons we have explained, rationally make another choice, based on the different characteristics of opposite-sex and same-sex relationships. Our earlier discussion demonstrates that the definition of marriage to include only opposite-sex couples is not irrationally underinclusive.

In arguing that the definition is overinclusive, plaintiffs point out that many opposite-sex couples cannot have or do not want to have children. How can it be rational, they ask, to permit these couples, but not same-sex couples, to marry? The question is not a difficult one to answer. While same-sex couples and opposite-sex couples are easily distinguished, limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing. A legislature that regarded marriage primarily or solely as an institution for the benefit of children could rationally find that an attempt to exclude childless opposite-sex couples from the institution would be a very bad idea.

Rational basis scrutiny is highly indulgent towards the State’s classifications. Indeed, it is “a paradigm of judicial restraint” (Affronti v Crosson, New York, 2001). We conclude that permitting marriage by all opposite-sex couples does not create an irrationally over-narrow or overbroad classification. The distinction between opposite-sex and same-sex couples enacted by the Legislature does not violate the Equal Protection Clause.

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What the Supreme Court(s) Said About Marriage: Part 1

by Peter Sprigg

June 23, 2015

At this writing, we are awaiting an imminent decision from the U.S. Supreme Court on a set of cases involving a claim that the Constitution requires states to permit civil marriages between persons of the same sex.

However, several Supreme Courts (state courts, that is) have already rejected similar arguments to those offered in Obergefell v. Hodges. Today, I begin a series offering excerpts from those decisions.

The earliest was in the Supreme Court of Minnesota, which handed down its decision in Baker v. Nelson on October 15, 1971. The appeal of this case was dismissed “for want of a substantial federal question” by the U.S. Supreme Court — establishing a binding precedent which over two dozen federal judges have chosen to ignore in the last two years.

While the U.S. Supreme Court issued no written opinion in Baker, the Minnesota Supreme Court did. Here are some key excerpts (with legal citations abbreviated):

The institution of marriage as a union man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. Skinner v. Oklahoma ex rel. Williamson, [U.S. Supreme Court] (1942), which invalidated Oklahoma’s Habitual Criminal Sterilization Act on equal protection grounds, stated in part: “Marriage and procreation are fundamental to the very existence and survival of the race.” This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation.

 . . .

The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry. There is no irrational or invidious discrimination. Petitioners note that the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if same-sex marriages are to be prohibited. Even assuming that such a condition would be neither unrealistic nor offensive under the Griswold rationale, the classification is no more than theoretically imperfect. We are reminded, however, that “abstract symmetry” is not demanded by the Fourteenth Amendment.

Loving v. Virginia, [U.S. Supreme Court] (1967), upon which petitioners additionally rely, does not militate against this conclusion. Virginia’s antimiscegenation statute, prohibiting interracial marriages, was invalidated solely on the grounds of its patent racial discrimination… .

Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.

For a more detailed description of Baker, and the full text of the decision, see this blog post from last year.

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Parental Opt-Outs and Conscience Exemptions

by Travis Weber

June 23, 2015

It’s a long-established principle that parents can “opt-out” of having their children take part in certain sex education classes they may find objectionable for a variety of reasons. Recently, some have even proposed “opt-in” requirements. One proposal in Utah reportedly “would require all public schools in the state to obtain written consent before providing human sexuality instruction to students, holding harmless those students who don’t enroll.” Such a presumption maximizes freedom; it expands the distance between the heavy hand of the state and individual rights. It doesn’t entirely disconnect the two, but certainly keeps a healthy distance between them. And these parental “opt-out” requirements have widespread support; many understand why they exist: we want to protect individual rights and the freedom of families to raise their children and govern their family unit as they see fit.

Such “opt-out” requirements have an analogue in conscience exemptions in the abortion context. For years, although abortion has been legally protected as a right under the Constitution (erroneously, I might add), our law has also protected the consciences of those who disagree and ensured they are not forced to take part in practices which violate their beliefs. This also maximizes freedom for all Americans.

Similarly, such exemptions naturally follow in the context of same sex marriage, should it be declared to be protected as a constitutional right. In that case, it would be the default position that individuals desiring such marriages would be able to legally enter them, and thus legislation protecting those who disagree from being forced to violate their beliefs through compelled participation in the process of such marriages would be absolutely necessary. Such legislation has already been proposed. At the federal level, the First Amendment Defense Act would provide such conscience exemptions. Similar protections are needed at the state level.

Like parents who want to (and are able to) “opt-out” of having their children exposed to certain matters at school, many have wanted to (and have been able to) similarly “opt-out” of forced complicity in abortion. It is quite logical that many will likewise want to (and should be able to) “opt-out” of forced participation in the process of same-sex “marriage.” In all these cases, the “opt-out” protects individual rights and maximizes personal liberty. It is the quite natural, logical, and freedom-loving position.

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Laudato Si: Pope Francis Calls for a Deeper Love of God and Neighbor

by Christina Hadford

June 23, 2015

Pope Francis’ new encyclical Laudato Si is less controversial than people think. Although Francis heavily treads in an area previously only lightly touched by his predecessors he merely reiterates established Catholic doctrine. Moreover, Pope Francis’ fundamental message transcends climate change or political provocation: it laments the moral deterioration of man and societal institutions, and optimistically rallies for a purposeful revival of humility, selflessness, and love of God.

At the heart of his exhortation, Francis asks: “What kind of world do we want to leave for those who come after us, to children who are now growing up?”

In answering this question, Pope Francis addresses a number of environmental issues. But he does so in a context that all Christians share. God put Adam in Eden to till it and keep it (Genesis 2:15); He forbade man from polluting the earth (Numbers 35:33) or stripping it bear (Leviticus 19: 9-10). The Earth is a gift to man from God; it is a glimpse into God’s unfathomable glory and greatness. Any man that destroys the earth robs future generations of witnessing this piece of God’s glory.

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Thank You Dad

by Joshua Denton

June 22, 2015

Tomorrow is Father’s Day. For some it will be just another day. For those who never really had the privilege of experiencing an earthly father’s love or whose fathers are no longer with them, it will be a day of mixed feelings of joy and sorrow. For me, it is a day I can reflect on my dad’s ongoing influence in my life.

To show my gratitude to my dad, , for being the great man in Christ Jesus that he is, I’d like to dedicate the following letter to him in honor of Father’s Day:

6/19/2015

Dear Dad,

This Father’s Day I want to thank you for being my Dad. It would be really easy to just buy you a nice Father’s Day card, but I want to really take the time to write a heartfelt thank you.

I know raising me hasn’t always been easy. I have always had a stubborn streak and I remember when I was younger how much trouble I used to get into. I was rebellious and disrespectful and a bad example to my siblings. But you persevered with me and never gave up on me. It might have been easier to let me have my own way, but you took the time to do the right thing. I still remember different times you would sit me down and take me through passages of Scripture and explain why the way I was acting was wrong and how I needed to give my heart to Jesus.

Before I got saved I was selfish and disobedient. I would always get angry, I could never control my temper. Instead I let it control me and tried to use it to control others. I know now that anger is just a manipulation tactic because I used to be that kind of person. But anger never has worked on you, Dad, and you taught me to do better.

I fought your instruction and guidance especially up until I was around 13 years old. I know I caused you and mom a lot of pain, tears, and prayers. Finally, I got tired from running from what I knew all along was the right thing. On November 8, 2008, with you and mom kneeling beside me in front of our couch in the living room I prayed for Jesus Christ to come into my heart and be my Savior and the Lord of my life. And this time, I really meant it.

From that time, I become a changed person. Close family members saw and still see the difference that Jesus made in my life. But if it wasn’t for you, Dad, I wonder where I would be now?

Life raising me still hasn’t been easy for you and mom and I know you’ve said that the teen years are so much more difficult than when I was just a kid. Thank you for being firm with me when necessary, for putting your foot down when you had to. Even when I’m sure it was hard, you still cared enough about me to not let me do certain things. Thanks for loving me Dad. Thanks for protecting me from all the evil that is out there.

Thank you for providing for me, my siblings and mom. Even when times were really tough and it was hard to pay the bills sometimes, we never went hungry. You always worked hard to provide for us. You taught me to work hard with my hands. I have always had to work hard for college and a car – and I’m glad. Some dads can give these things to their kids. That’s great if they can, and I know you would if you were able. But I am glad I have had to work to make a living and earn things. There are more important things that you gave me. Character lessons. Because of you I know how to manage money, plant a garden, how to do a lot of different types of construction, how to treat a lady, how to be strong, how to be a man.

Thank you Dad.

You’ve been a great role model for me. Other role models I have looked up to in the past have failed me, but you’ve always been there for me. I know you aren’t a perfect Dad, and I am certainly not a perfect son, but I sure respect you a lot.

Most of all Dad, I want to thank you for instilling in me a love for God’s Word, and for teaching me how to follow him – no matter what others thought of me for it. I remember you have always said “the most important thing in this world is to get to heaven and help other people get there.” Thank you for teaching me to have an eternal perspective of what really matters in life. Thank you for taking God’s commands to a father seriously by sitting us kids down and spending time in God’s Word with us; explaining passages, answering our questions, and encouraging us to study the Bible for ourselves.

Now that I’m in a different stage of life and living on my own, I’ve acquired a new appreciation for how you raised me. I see more fully now that you set rules and boundaries for a reason, not just to make life harder or to be mean. I’m a young man now Dad, and someday I’ll be a husband and dad myself. I know when those days come I’ll come to realize even more how wise you are. I won’t forget the lessons you have taught me.

I thank God for giving me a dad like you, and I hope someday I can be the kind of man that you are. I love and appreciate you.

Your Son,

Josh

The sad state of fatherhood in America makes me all the more thankful for my earthly father that my heavenly Father has blessed me with. 54% of children ages 15-17 come from broken families – families whose parents are no longer or never were married. Clearly, the presence of a good father in the home

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Are Americans Having More Babies?

by Cordell Asbenson

June 19, 2015

The Centers for Disease Control (CDC) recently released its 2014 preliminary report on births in the United States. It predicts that, for the first time in seven years, the number of births will rise, increasing the average number of births per mother to roughly 1.9% . If accurate, this increase in births has exciting implications, particularly with regard to the economy.

However, the preliminary report has to be viewed with prudent reservation. In the CDC’s 2013 preliminary report on births, the total number of births was projected to rise above the 2012 total. Yet the final report ended up showing an overall decrease in births due to an over-calculation in the preliminary report of more than 25,000 births.

Turning to the 2014 preliminary report, the increased number of births projected is so miniscule that if the miscalculation made in 2013 were repeated in the 2014 preliminary report, then the overall increase in births from 2013-2014 would be roughly 28,000, an overall increase of less than 0.75%.

The projected increase in number of births is an encouraging step in the right direction, but only a small one. We await the release of the final report to better understand these preliminary findings.

On the importance of a higher birthrate in the United States, see the Marriage and Religion Research Institute’s “The Decline of Economic Growth: Human Capital & Population Change.”

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Supreme Court takes a “Painful Bite” out of Free Speech

by Lindsey Keiser

June 18, 2015

While the Supreme Court protected free speech by invalidating town sign ordinances that restricted speech according to its content in Reed v. Town of Gilbert, the Court’s decision today in Walker v. Texas Div. of Sons of Confederate Veterans, Inc. took “a large and painful bite out of the First Amendment,” as Justice Alito noted in dissent.

Drivers in most states have the option of selecting either ordinary or specialty license plates. In Texas, specialty license plates are purchased for a fee in addition to the registration cost and the design of these specialty licenses can be called for by the state legislature, created by a state-designated private vendor at the request of an individual or organization, or based on the application from a non-profit seeking to sponsor a specialty plate. In Walker, a non-profit, the Sons of Confederate Veterans applied twice to sponsor a specialty plate that would have included a Confederate flag but was denied both times.

The Supreme Court ruled that the specialty license plates are not private speech, but are instead government speech. Therefore, any decisions regarding the designs are not subject to scrutiny under the First Amendment.

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Overview of Reed v. Town of Gilbert: Pastor Wins Supreme Court Case Against Local Government Trying to Restrict His Church Signs

by Travis Weber

June 18, 2015

In its opinion issued today in Reed v. Town of Gilbert, the Supreme Court handed a solid victory to Pastor Jack Reed and Good News Community Church, unanimously holding that the town’s regulation of signs to church meetings violated the Free Speech protections of the First Amendment.

A Gilbert, Arizona sign ordinance had discriminated against certain signs based on the content of the signs—whether they were political, ideological, and directional. Directional signs were placed under more severe restrictions than the other types.

Good News Community Church and its pastor, Clyde Reed, needed to announce the times and locations of their services, but because their announcement signs (which directed individuals to a public school where services were being held) were considered directional, the church was severely hampered in speaking its message. Pastor Reed and Good News Community Church filed suit after unsuccessfully seeking an accommodation from the town. The lower courts ruled against them, so they took their case to the Supreme Court. Family Research Council filed an amicus brief with the Court siding with Pastor Reed and his church to make the case for a robust interpretation of our First Amendment rights.

Writing for the Court, Justice Thomas held that Gilbert’s sign code engaged in content discrimination and thus had to meet strict scrutiny, which it failed to do.

Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed,” Justice Thomas wrote. If regulation is content based, it must meet strict scrutiny, meaning the government must have a compelling interest behind its regulation and the regulation must be done in the least restrictive way possible.

The Court noted that “[t]his commonsense meaning of the phrase “content based” requires a court to consider whether a regulation of speech “on its face” draws distinctions based on the message a speaker conveys… . Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.”

In this case, “[t]he restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign. If a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government.”

Here, “the Church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech.”

In essence, Gilbert treated directional signs differently than others. It thus regulated signs based on their content. “We thus have no need to consider the government’s justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny.”

Justice Thomas continued by noting the Ninth Circuit’s reasoning to the contrary was unpersuasive. Content based regulation occurs if it is present on the face of the regulation, regardless of the government’s motive. “In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral,” and the Court rejected any reliance on Ward v. Rock Against Racism for the notion that government purpose is relevant when a law is content based on its face: “[W]e have repeatedly ‘rejected the argument that discriminatory … treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas.’ … We do so again today.”

Of note, the Ninth Circuit opinion which the Court so clearly rejected here relied on Hill v. Colorado for similarly dubious reasoning. This rejection confirms our observation about Hill in our amicus brief:

[T]he Hill majority was wrong to treat ‘protest, education, [and] counseling,’ the activities forbidden by the Colorado statute in Hill, merely as modes of speech rather than as distinct subjects of messages… . [T]hat the Hill majority’s analysis would lead a federal court of appeals to conclude that the Gilbert ordinance—an ordinance that on its face differentiates expression by content and imposes different restrictions based solely on content—is somehow content-neutral is one more reason … to overrule Hill.”

Indeed, as Justice Thomas realizes, “[i]nnocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech. That is why the First Amendment expressly targets the operation of the laws—i.e., the ‘abridg[ement] of speech’—rather than merely the motives of those who enacted them.” He presciently quotes Justice Scalia’s dissent in Hill: “[t]he vice of content-based legislation … is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes.”

The Court then analyzed the sign code under strict scrutiny, and found that the code’s differential treatment of certain signs based on how it characterized their content did not serve any compelling interest in a narrowly tailored way. The town offered two reasons for its regulation—“aesthetics” and “traffic safety”—neither of which persuaded the Court. “Aesthetics” did not serve as a sufficient reason to draw the distinctions as the code drew them, the Court said. Neither is “traffic safety” advanced by limiting certain content more than others. As the Court noted, local governments can further legitimate interests in traffic and pedestrian safety, among other interests, through content neutral restrictions which are narrowly tailored. The Town of Gilbert’s did not meet that standard.

Justice Alito wrote a concurring opinion in Reed, joined by Justices Kennedy and Sotomayor, outlining simple ways that municipalities can still regulate signs consistent with this opinion.

Justice Breyer also wrote a concurring opinion, cautioning against using content as an “automatic … trigger” for strict scrutiny, and argued for more “judicial sensitivity” to the First Amendment’s objectives. He opined that because speech is so often regulated by the government, the ruling in this case will result in “judicial management” of all sorts of government activity.

However, while Justice Breyer makes an attempt to articulate an alternative standard, it is convoluted and confusing:

The better approach is to generally treat content discrimination as a strong reason weighing against the constitutionality of a rule where a traditional public forum, or where viewpoint discrimination, is threatened, but elsewhere treat it as a rule of thumb, finding it a helpful, but not determinative legal tool, in an appropriate case, to determine the strength of a justification. I would use content discrimination as a supplement to a more basic analysis, which, tracking most of our First Amendment cases, asks whether the regulation at issue works harm to First Amendment interests that is disproportionate in light of the relevant regulatory objectives. Answering this question requires examining the seriousness of the harm to speech, the importance of the countervailing objectives, the extent to which the law will achieve those objectives, and whether there are other, less restrictive ways of doing so.”

Unfortunately, such a vague standard would likely invite more judicial management (at least leaving more discretion in the hands of judges) then the majority’s clear rule here. In addition, “substituting judicial judgment for that of administrators” is precisely what we need the separation of powers for. In this case, “administrators” saw their clearly content based regulation as permissible, and needed the Supreme Court to articulate the correct standard—which it did.

Justice Kagan also concurred, joined by Justices Ginsburg and Breyer, and argued that the majority’s rule would capture all types of regulation within its net which is not necessary, and instead the “content-regulation doctrine” should be administered “with a dose of common sense, so as to leave standing laws that in no way implicate its intended function.”

While there likely are a number of regulations which may be implicated by the majority’s ruling, it is better to resolve doubts in the ruling in favor of individual rights, if nowhere more than when the First Amendment is at issue. Regardless, the problem remains: who gets to say what common sense is?

Does Justice Kagan have a point that the town’s regulation here could have been failed on tailoring alone, instead of being declared invalid under a rigid holding which she believes we “will regret” down the road after seeing how intrusively it requires courts to review sign codes? Perhaps so. But at this juncture it’s better to have clear constitutional guidelines laid out by the Court. Finally, the regulations which hypothetically concern the concurring Justices may not devolve into litigation, thus minimizing this ruling’s actual effect.

In sum, the ruling today is a Free Speech victory, and should be celebrated by all adherents to a strong First Amendment and individual rights.

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