Can the President Kill Americans?

Judge Andrew P. Napolitano*



Can the president kill you? The short answer is: Yes, but not legally. Yet, President Obama has established a secret process that involves officials from the Departments of Justice and Defense, the CIA, and the White House senior staff whereby candidates are proposed for execution, and the collective wisdom of the officials then recommends execution to the president, who then accepts or rejects the recommendation.

If the recommendation is to kill and the president rejects the recommendation, the CIA is directed to arrest the person. If the president accepts the recommendation to kill, then death is ordered. This is not unlike the procedure used in the reign of the monstrous British King Henry VIII, except that the king himself delegated the final say to his chancellor so that he could publicly disavow participation in the government murders.

Obama does not disavow them; he defends them. But the Constitution he swore to uphold makes clear that whenever the government wants the life, liberty or property of anyone, it must follow due process. Stated differently, it must either sue the person for his property or prosecute him for his life or liberty, and the law that forms the basis for the lawsuit or the prosecution must have existed before the person did whatever the government says he did that resulted in its pursuit of him. The whole reason for the requirement of due process was to prevent what Henry VIII did and Obama is doing from ever happening here.

It is happening here.

In 2011, Obama ordered the CIA to murder Anwar al-Awlaki, an American born in New Mexico. When the CIA’s drones murdered Awlaki, he was within eyesight in Yemen of about 12 Yemeni intelligence agents and four CIA agents, all of whom collectively could have arrested him. He was not engaged in any unlawful behavior. He was unarmed and sitting at an outdoor cafe with a friend and his teenage son and the son’s friend. All four -- Americans all -- were murdered by the drones dispatched from Virginia.

When word of this got out, the president came under heavy criticism. He responded by claiming he had the lawful authority to kill any dangerous person whose arrest was impractical. He also claimed he had a legal opinion from Attorney General Eric Holder that justified the killings. He then dispatched Holder to explain the lawful basis for the killings at a speech at Northwestern Law School. The speech produced even more criticism and, eventually, the revelation of a portion of the legal opinion.

The legal opinion is hogwash. It relies on cases of hot pursuit in which police may lawfully use deadly force to stop an armed and dangerous person who is an imminent danger of causing deadly harm to someone else -- an armed robber fleeing a bank he has just robbed and shooting at his pursuers may of course be shot at lawfully by the police. In the Awlaki case, the government had not even alleged that he committed a crime. Without that allegation, those 16 intelligence agents who were following him for the final 48 hours of his life could not have lawfully arrested him. The government concedes this; so it decided to kill him.

All this resurfaced last week in a Brooklyn federal courtroom where another American, Mohanad Mahmoud al-Farekh, born in Texas, was charged with providing material assistance to a terrorist organization while he was in Pakistan. It was revealed that the Department of Defense nominated Farekh for execution, the CIA seconded the nomination (you cannot make this stuff up), and the president vetoed it because he did not want to offend the Pakistanis, over whose land he has dispatched more than 3,000 drones, a practice he promised to stop.

The president did not decline to order the murder of Farekh because it was morally wrong or unconstitutional or a violation of federal law, but because he feared it would upset officials in a foreign government. We also learned last week that the House and Senate committees on intelligence -- the members of which receive classified briefings that they cannot share with their constituents or colleagues -- demanded Farekh’s execution, but the president refused.

What a sad, sorry, unconstitutional state of affairs this Obama presidency and its enablers in Congress have brought us. Like Awlaki, Farekh was not engaged in an act of violence when intelligence agents pursued him. Why did one of these pursuits result in due process and the other in murder? Because of the political calculations of the president. That is not the rule of law. That is a gross violation of basic American values.

While all this has been going on, the president has negotiated a deal with Iran that has many in Congress up in arms. They think he gave away the store, and they are in the process of enacting legislation over his likely veto that would prohibit him from entering into agreements on nuclear weapons without their consent. Have you heard any of these self-proclaimed congressional patriots offer legislation to prohibit the president from murdering Americans? Who will be nominated for execution next?

When the president acts like a king and Congress looks the other way, it is as culpable as he is.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

The Problem With Antidiscrimination Laws

Richard Epstein*



My column of last week, The War Against Religious Liberty, addressed the combustible mixture of the antidiscrimination norm and religious liberty, as it applies to ordinary businesses that do ordinary things, like taking photographs and baking wedding cakes. In dealing with that issue, I implicitly accepted the common premise that the antidiscrimination laws as they apply to public accommodations are an acceptable part of the American legal culture, so that the one remaining serious question is what governments should do when small businesses in competitive markets are asked to perform services that cut against their sincere religious beliefs. For the most part, these conflicts are rare, but they do occur with regularity when religious Christians object on grounds of conscience to providing services for same-sex marriages and similar commitment ceremonies.

The standard method for dealing with these conflicts is to introduce a three-step balancing test under both the federal and state versions of the Religious Freedom Restoration Act. The first step asks whether a presumptive exemption is appropriate because the law places a substantial burden on the exercise of a religious liberty. That question is answered in the affirmative when individuals are asked to engage in close collaborative efforts. But it is answered in the negative when the transaction involves only the sale of prepackaged and standardized goods in routine market transactions. Next, where the burden is substantial, does the state have a compelling interest in imposing its antidiscrimination law? All too often today that interest is found, which leads to a simple decree that the service must be provided on pain of a fine or other sanctions, even for services readily available elsewhere. Finally, that state interest is to be satisfied in the least restrictive possible manner, which in this context means offering the requested service or going out of business.

This conventional approach sets up a large and persistent clash between the antidiscrimination law and religious liberty. Much of that problem rightly disappears if we ask the right fundamental question: why and when do we have any antidiscrimination law at all? In examining this issue, it is critical to return to fundamental legal principles that antedate the passage of the Civil Rights Act of 1964, which extended the antidiscrimination principle first to “public accommodations” under Title II of the Act, and then to employment relations under Title VII.

Historically, the nondiscrimination rule was applied first to common carriers and then to public utilities because both were typically supplied by firms that had a monopoly position in the relevant market, which meant that a refusal of the operator of those facilities to supply the service to all comers left disappointed customers quite literally out in the cold. Nonetheless, the antidiscrimination principle was confined to those cases, so that in competitive markets any person could for any reason offer whatever goods and services he or she had on whatever terms and conditions that he or she saw fit to make.

The basic rule was stated with commendable clarity by Lord Ellenborough in England as early as 1810. In Allnutt v. Inglis, he wrote that in general every person “may fix what price he pleases on his own property,” but “if he will take the benefit of a monopoly, he must as an equivalent perform the duty attached to it on reasonable terms.” That principle worked its way into American public utility regulation as a constitutional matter in the 1876 decision of Munn v. Illinois. Over time its full elaboration denied that any common carrier or public utility had the power to turn away customers who had no reasonable alternative for obtaining service.

Yet, by the same token, that monopolist cannot be required to operate that service at a loss, and therefore is entitled to charge reasonable and nondiscriminatory rates. The first of these two terms signals that the monopolist’s profits should, on a risk-adjusted basis, be held down to competitive levels, without forcing it to operate at a loss. The second contains the core of the nondiscrimination principle, which states that the monopolist cannot play favorites among its customers in a given class (e.g. residential versus commercial services, or freight versus passenger service) by selectively boosting rates, most especially on grounds of race or sex. The only permissible rate differential reflects a differential cost of providing service.

In this context, the key predicate for the application of the nondiscrimination rule is the control over monopoly power. It follows therefore by this logic that in competitive markets there is no place for the antidiscrimination norm, so that the elaborate accommodations under a Religious Freedom Restoration Act need not be made at all.

The key inquiry therefore is how best to identify when those competitive conditions hold. In the run-up to the 1964 Civil Rights Act the great impetus behind the passage of Title II was the widespread and conspicuous stories of motels and restaurants refusing to provide service to their black customers on equal terms with white customers, assuming that they were willing to provide for them at all. At this point, there is an evident breakdown in the operation of competitive markets, because it seems evident that some merchants—most notably national restaurant and hotel chains—that provided open service in the North were unable to do so in the South. The explanation in large measure rested on the combined threats of a segregationist establishment backed by private violence, which made entry of new businesses into the market to serve disfavored groups a near impossibility. The great achievement of the Civil Rights Act of 1964 was to smash these official and private barriers to open services. Once released, competitive forces took over, and the short-term crisis came to an end.

It is important, however, to draw the right lesson from the horrific experience of segregation. That lesson is that if competitive market forces are allowed to work, the problem of discrimination will be solved by the entry of new firms who will cater to mass markets, wholly without legal compulsion. That was certainly the case in Indiana before the passage of its Religious Freedom Restoration Act. There were no legal rules that prohibited discrimination in public accommodations against gays and lesbians, and there was no want of service.

Marriage markets are of course different, because now the identity of the parties really matters along the lines of race and sex, which are the primary targets of antidiscrimination laws in public markets. It is well known that there is an active market that competes vigorously for same-sex-marriage couples in explicit and unmistakable terms. A quick Google search for “same sex wedding venues” revealed about 369,000 entries in that niche. For example, GayDestinationWeddings is “created expressly to serve the needs and exceed the expectations of the LGBTQ community.” From the website, it appears that it discriminates against traditional heterosexual couples. This reads like a flat-out violation of the new civil rights laws, but who cares? The fact that every entrepreneur does not choose to enter every niche in the larger wedding market is at most an irrelevant detail to the overall health of the market. The abundance of competitive alternatives means that federal and state governments never have a legitimate interest in forcing unwilling people into business with others. Thus, the need for the complex RFRA structure collapses.

But at this point, the response will be to play the race card. If you allow firms to refuse to service gay and lesbian individuals, then it becomes legal to refuse service to black persons as well. Precisely—at least if the legal principle is correctly stated. It would be a gross injustice of the first order to say that white people could refuse to service black people, but that black people were duty-bound to service white people. But the principle of freedom of association does not take that one-sided view of the problem. It says rather that all individuals can choose their trading partners as they see fit. This principle in effect allows for all sorts of associations to flourish.

Another quick Google search got me to Black Bride, “The Premier Online Resource for Brides of Color,” an attractive web site whose very existence looks like a per se violation of the Civil Rights Act. It is an open question of whether a strict color-blind principle could allow such important businesses to flourish. But as matters pan out, it takes but a single click to get the interested customer to a website that is devoted to multicultural interracial weddings, and then realize that a strict public accommodation law is a real threat to social diversity.

This particular rule is not confined to weddings. One of the great debates of the modern era is whether the color-blind principle of the Civil Rights Act renders affirmative action programs illegal for private businesses, colleges, and charitable institutions that wish to implement them. The worst approach to this question is to say that these institutions are allowed to follow their policies only if they can make out some special reason for doing so. That will only clutter the issue with claims about the vast benefits of diversity, which could be true in some cases, even if they are false in others. But why should institutions have to make these claims to do what they want? Just let any private institution that wants to deviate from a color- or sex-blind principle do so, which means that private colleges and universities should be free of the yoke of Title IX, whose antidiscrimination diktats have thrown a huge monkey-wrench into college athletics. University administrators will not be tone-deaf on these issues, even without the government peering over their shoulders.

The great mistake of the public accommodations provision of the 1964 Civil Rights Act is that it cut too broadly in covering all hotels, restaurants, and places of entertainment. Now that organized segregation and the systematic violence that enforced it have been vanquished, I am willing to bear indignant cries from anyone who objects to my effort to limit the nondiscrimination principle of Title II to common carriers and public utilities, where they blunt the risks of monopoly power in the provision of standardized services. To be sure, as a matter of political economy, it is unwise to mount a legal revolution to attack on principle a widely supported statute whose basic application causes no harm. But by the same token, the uncritical acceptance of the view that these public accommodation laws are so important that they should sweep everything else aside has produced serious dislocations where there is a horrible fit between the legal command and the social practice.

It is for that reason that it is important in the current environment to play the balancing game in the correct fashion, which means that we have to be very chary of expanding the notion of “compelling state interest” so that it becomes a weapon to create a two-tier society that privileges the claims of black voters, as in the recent Alabama Black Caucus case, and of gay and lesbian consumers, as in the battle over the Indiana RFRA law. The one safe principle is to allow competition to flourish in the market for goods and services, and to keep to the color-blind principle in the public dispensation of goods and services for all citizens, regardless of their legitimate claims of self-identification. 

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Thank You To All Who Attended Our Symposium on Economic Liberties & State Constitutions

JLL would like to thank our readers who attended our symposium on economic liberties and state constitutions. We had a great turnout, and we hope to see you at our future events!

We would also like to sincerely thank the Institute For Justice, as the symposium would not have been possible without their support. We hope to do more events with IJ in the future, and encourage our readers to check out the excellent work they have been doing across the country!

Justin Pearson (left), Professor Stephen Calabresi (middle), and Professor Richard Epstein (right). 

Justin Pearson (left), Professor Stephen Calabresi (middle), and Professor Richard Epstein (right). 

Shooting Themselves in the Foot

Judge Andrew P. Napolitano*



The turmoil over the efforts by the State of Indiana to make lawful the decisions by operators of public accommodations to decline their services based on their stated religious views has died down because the legislature amended the offending parts of its legislation so that the new law prohibits denying services based on sexual orientation, yet its affirmations of religious liberty are meaningless.

The statute as amended last week basically states that in Indiana all persons have the right to the free exercise of their religion, and if that right clashes with any other claimed right, the courts must take both claims into account and analyze the free exercise of religion claim by using legal standards intended to recognize that it is fundamental.

That is already the law of the land everywhere in the United States by virtue of the Free Exercise Clause of the Constitution, which may not be expanded by any state legislature without offending the Establishment Clause. The free exercise of religion is a fundamental liberty; it is fundamental because it is a natural right and is expressly protected by the Constitution. It is intentionally juxtaposed to be at tension with the Establishment Clause. The two clauses together mean that government may not aid religion, may not harm it, may not advance it and may not interfere with it.

The Indiana firestorm was the consequence of a governmental solution for no problem. It is absurd for a state to pronounce in its positive law the truism that rights guaranteed by the U.S. Constitution shall be honored in that state. I say “absurd” because that already is the law of the land and any effort to restate it is superfluous and no doubt intended to mislead the people into believing that somehow, in Indiana, there is more religious freedom than elsewhere in the U.S. There isn’t, and there cannot be.

This misrepresentation occurred when Indiana’s original Religious Freedom Restoration Act stated that religious beliefs can trump legal obligations when the operator of a public accommodation is deciding whether to deliver his goods or services to a person whose status, past behavior or contemplated behavior runs counter to the operator’s religious beliefs.

By permitting the rejection of services because of sexual orientation, so long as that rejection was based on a religious belief, Indiana was effectively making discrimination based on sexual orientation lawful. No other state had done that.

When the owner of a northern Indiana pizza restaurant said she would decline to deliver pizza to a same-sex wedding reception because her religious views prohibit same-sex weddings, it was a lawful statement, and if she had carried through on her promise, her behavior in Indiana at the time the original statute was in force would have been lawful.

Should the pizza restaurant owner have been able to make that promise and carry through with it?

Before you answer, consider where this could have gone. Suppose the couple seeking the pizza at their wedding was not only same sex, but also of two different races, and the pizza shop owner claimed a religious aversion to mixed-race marriages. Could she have followed through on her promise to deny the pizza? Or suppose she objected on religious grounds to weddings of those who had been previously married? Could she lawfully have denied pizza to them? Or suppose she claimed a religious view that prohibited her from serving pizza to anyone whose skin color was darker than hers? Is there no limit to her ability to refuse service so long as she claims a religious basis for doing so?

One can see the slippery slope that the original Indiana statute could have begun by offering state legal protection to the refusal to deal based on religion, even when it is contrary to federal law. Under the law, no one needs to prove the prior existence of a religious creed or decree in order to claim it for one’s own, and the courts may not inquire of the origin, centrality, rationality or sincerity of one’s religious beliefs. Hence, the Indiana law on its face could be used to claim the right to deny any person any service in any public accommodation, so long as the denial was based on the denier’s stated religious views.

But the statute runs counter to standard First Amendment jurisprudence. The U.S. Supreme Court has addressed this twice in recent years and both times ruled that religious beliefs cannot trump the obligation to comply with the general law of the land. The Indiana legislature should have known this.

Before 1964, all public accommodations could refuse service to anyone for any reason. But the Civil Rights Act of 1964 and its amendments put an end to that for all immutable characteristics of birth, except sexual orientation. If the Indiana legislature wanted to bring back the bad old days with respect to sexual orientation and public accommodations, one can understand the firestorm it got. If it was just trying to boast that it was defending the same religious liberties the Constitution already requires it to defend, its efforts were clumsy, unnecessary and wasteful.

Why do politicians support legislation and not concern themselves with whether it is constitutional? Why do they trick innocent voters into thinking they are getting something unique? Why do we return them to office when they shoot themselves in the foot?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

The War Against Religious Liberty

Richard Epstein*



Our country is in the midst of a heated and corrosive debate over what protections the law should afford to religious liberties. The matter reached its boiling point on March 17 when Indiana passed a now amended Religious Freedom Restoration Act that was, with significant variations, patterned on the federal 1993 Religious Freedom Restoration Act (RFRA). Hard as it is to remember, the federal RFRA represented an overwhelming bipartisan rejection of Justice Scalia’s 1990 decision in Employment Division v. Smith, which stood for the proposition that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”

Having enunciated that broad principle, Justice Scalia then upheld Oregon’s decision to deny unemployment benefits to Alfred Smith, a member of the Native American Church, because he was fired for having ingested peyote, a banned substance, as part of his religious rituals. Under Scalia’s iron logic, the disparate impact of this law on Smith did not require Oregon to make any accommodation for his religious beliefs. The denial of unemployment benefits here was collateral damage, given that Oregon did not initiate criminal proceedings against him, as it might have done if he had ingested peyote for recreational use.

Justice Scalia’s dangerously broad neutrality proposition prompted massive disapproval at the time because of the potential breadth of its application. Under that rule, the United States could draft Jews or Muslims into the military and force them to eat pork. After all, they have the choice to go hungry in order to not violate their religious convictions. It could also require commercial Kosher butchers to slaughter meat in accordance with federal health laws inconsistent with kosher rituals.

RFRA’s response established that the United States could not “substantially burden” the religious liberties of any person unless it could show a compelling state interest for the law that caused the burden, and even then it had to pick the least restrictive means to achieve its narrowly-defined public interest. During the more than twenty years that the federal RFRA has been in operation, it has provoked relatively little litigation on provision of services issues, and courts have never read it as a blanket license to discriminate. For the most part the application of the law dealt with matters of faith and religion.

But that has now changed with the new insistence on broad antidiscrimination laws that prohibit any discrimination by any public accommodation, broadly defined, in the provision of any services, however personal or intimate, to gays and lesbians, even when they conflict with the religious belief that marriage is a union between one man and one women.

The typical pattern runs like this. In Elane Photography v. Willock, a lesbian couple in Mew Mexico inquired about having pictures taken at their commitment ceremony in the state at the time that same-sex marriage was not yet legal. When Elane declined, the couple hired another photographer, but turned the matter over to the New Mexico Human Rights Commission, which refused to apply the New Mexico version of RFRA to any business that was open to the public.

Something similar happened in Craig v. Masterpiece Cakeshop when its proprietor Jack Phillips refused to bake a custom wedding cake for a gay couple. The Colorado Civil Rights Commission ordered him to bake the wedding cake. In a public hearing, one of its commissioners, Diann Rice, added pointedly: “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust . . . we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use . . . their religion to hurt others.” Among the remedies proposed was a “reeducation” order for Phillips and his staff, a solution more appropriate for a totalitarian regime than for our free nation.

At this point, it should be clear why religious groups have worked hard to pass an expanded version of RFRA. The Colorado Commission made the grotesque and inexcusable comparison of the refusal to do business in a highly competitive market with the mass extermination of helpless individuals in government gas chambers. Commissioner Rice’s insistence that Cakemasters has used its religion to “hurt others” means that anyone who turns a person down for business “hurts” that person. Her formulation shows no appreciation whatsoever for the relative harms involved in these low-level commercial interactions. Craig has dozens of alternative outlets clamoring for his business. Phillips and Elane Photography don’t have that luxury; they are now put to the impossible choice of closing down or violating their religious beliefs.

It is all too easy to denounce, as does the New York Times, Indiana’s RFRA law as being driven by “bigotry against gays and lesbians.” But that is malicious libel against individuals at businesses like Cakemasters and Elane’s Photography who have thought long and hard about their unwillingness to participate in marriage rites that are contrary to their religion. They also have no interest in turning away gay and lesbian customers in any other commercial activity. Unfortunately, the relentless pressure of state civil rights commissions makes these small religious businesses a “discrete and insular” minority, as the Supreme Court said in 1938 about state coercion against disenfranchised racial minorities. It is easy to tolerate people with whom you agree. It is necessary in a free society to tolerate those with whom you disagree. It is this loss of tolerance, this self-righteous indignation, this vilification of a vulnerable religious minority that makes this recent chorus of incivility so disgraceful.

At this point, it is now possible to understand why Indiana drafted its original statute as it did. First, it applied to businesses and partnerships, whose coverage was unclear under the 1993 federal statute. That point had been addressed in the Supreme Court’s Burwell v. Hobby Lobby where Justice Samuel Alito held, rightly I believe, that the term “person” in RFRA was broad enough to cover a family corporation, Hobby Lobby, whose family owners had deep and considered religious objections to some, but not all, forms of contraception that government regulations under the Affordable Care Act required them to supply. Alito insisted that if the persons who ran their businesses would be covered under RFRA if they operated their business in the form of a partnership, then they should not be forced to forfeit that protection under federal law by incorporating under state law. The argument is a rerun of the 2010 Supreme Court decision in Citizen’s United v. FEC, where the Supreme Court rightly held that individuals did not lose their First Amendment rights when they incorporated their businesses.

In addition, Section 5 of the original Indiana RFRA made it clear that “’exercise of religion’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” That sentence was needed because Justice Scalia’s neutrality rule in Smith rested on his refusal to ask which practices were central to a religious system and which were not. He was wise to steer clear of theological disputes, but wrong to ban any accommodation for any religious beliefs.

In reading the Indiana statute, critics like Tim Cook, the CEO of Apple, cast it in the worst possible light. Thus he writes: “The original Indiana bill says that individuals can cite their personal religious beliefs to refuse service to a customer or resist a state nondiscrimination law.” “Citing” will not get the job done unless they can point in good faith to the set of religious beliefs that drive that conclusion, which won’t happen with standard business transactions. Next, Cook does not mention that the law required that the state law “substantially burden” religious activities. No one has ever held that this test is satisfied by having to sell groceries to a gay or lesbian person. Nor, of course, does Cook even acknowledge the trampling of religious interests in cases like Cakemaster and Elane’s by ideologically militant state Civil Rights Commissions.

Cook has a clear ulterior motive. His grand proclamation that Apple is “Open to everyone, regardless of where they come from, what they look like, how they worship or who they love” is a smart marketing strategy. But it is also cheap theater, because he does not have to repeal the Indiana law, which lets him serve whom he wants, to implement his strategy. The same applies for Wal-Mart, General Electric, and every other large public corporation that is happy to climb on a bandwagon by pressuring governments to ratchet up the pressure on little people in order to make themselves look good.

Indeed, to my knowledge, no public corporation has ever claimed the protection of RFRA, precisely because its diffuse group of shareholders and employees has no uniform collective religious beliefs to protect. Broadly construed, the Indiana statute will apply in practice to at most a microscopic fraction of business transactions. Why then the hyperbole and massive intolerance?

A respectable argument could be made that the language of the original Indiana statute sweeps too broadly relative to modern norms of discrimination. It is always easy to imagine horrible things that might happen, even if impossible to document them in a single case even in Indiana, which in the run-up to the current dispute had no antidiscrimination laws targeting gays and lesbians. Unwisely, Indiana drafted an arguably overbroad statute to counteract the war against religious liberties, which does include that wholly unnecessary protection. It might have been better for it to wait before doing anything until some Indiana commission or court followed the path taken in Elane’s and Cakemasters before moving forward.

In the end, Indiana capitulated to avoid a firestorm of criticism and threatened boycotts, but it did so in the wrong way. The appropriate way to handle this question would have been to define “substantial burden” as it was always meant, so that it cuts out routine provisions of services and leaves it only for commercial activities that require personal participation in religious ceremonies or other activities against religious conscience. Unfortunately, Indiana passed a broader antidiscrimination law that adds sexual orientation and gender identity to the list of protected classes, without fixing the other problem of protecting religious liberty.

This sorry episode proves once again that the law is a blunt instrument that lurches first too far in one direction and then too far in the other. The controversy in Indiana could have been avoided if the Supreme Court in Smith had not elevated the misguided principle of statutory neutrality to its touchstone for dealing with religious liberty. But this fight is still not over. Cases like Hosanna-Tabor Evangelical Lutheran Church v. EEOC may have limited Smith’s scope, but whatever the state of the precedent, the Supreme Court should face head-on decisions like Elane’s and Cakemaster to introduce a modicum of restraint and self-reflection into what has become an overwrought and misguided assault on religious liberties.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Indiana and the Constitution

Judge Andrew P. Napolitano*



The Indiana Religious Freedom Restoration Act of 2015 is constitutionally infirm and legally troublesome.

The circuitous constitutional route that brought about this statute began in 1990 when the Supreme Court ruled that the Free Exercise Clause of the First Amendment may not be used as a defense to violating the general laws of the land. In Employment Division v. Smith, a small group of Native Americans who had been fired from their jobs because drug tests revealed their use of peyote made applications for unemployment compensation, which the State of Oregon denied.

They appealed and claimed that their use of peyote, a hallucinogenic drug, could not be the basis for firing them from their jobs because it was a sacrament in their religion. The court ruled that the adherents to this religion had the same obligation to obey the laws that prohibit the use of peyote as all persons do.

In response to that decision, and wanting to show an interest in an issue of constitutional liberty for a change, Congress enacted the federal Religious Freedom Restoration Act of 1993 (RFRA), a clumsy effort to overturn the Employment Division v. Smith ruling.

That statute basically required the federal government and the states to permit the “my religion made me do it” defense wherever there was an arguable claim that a general law of the land conflicted with a genuine religious practice or belief. The statute also mandated an exacting due process standard, called strict scrutiny, that the courts are to apply to the states’ enforcement of their laws when addressing an alleged clash between a general law applicable to everyone and a free exercise of religion claim.

Four years later, when the Roman Catholic Archbishop of San Antonio, Texas, claimed the protection of RFRA to justify an exemption to a local zoning law so that an old church could be expanded, and lost, he appealed, and the case made its way to the Supreme Court. In Boerne v. Flores (1997), the court found RFRA to be unconstitutional. It ruled that Congress had effectively redefined the meaning of the Free Exercise Clause and mandated the judicial standards to be used when assessing claims made under it, and that that definition and mandate are not properly Congress’ to make. Because Congress’ powers under the Fourteenth Amendment are limited to remedying state failures to protect fundamental liberties and do not extend to defining the meaning or parameters of constitutional provisions, the court invalidated RFRA.

Thus, it is clear that one may not violate any law, state or federal, and escape the consequences of that violation on the basis that one’s religious views compelled the disobedience. Were this not the case, then nothing would prevent animal sacrifice, the use of mind-altering drugs, and even racial or gender or national origin discrimination in public accommodations and housing -- all allegedly based on one’s claimed religious views. The federal Civil Rights Act of 1964 prohibits discrimination in housing and public accommodations based upon race, gender, religion, beliefs or national origin, and quite properly permits no religious-based defense.

In response to the invalidation of RFRA, many states enacted their own form of RFRA, and most states added sexual orientation to the litany of prohibited bases for discrimination in public accommodations and housing. Indiana has not added the prohibition on discrimination based on sexual orientation; yet its own RFRA statute, signed into law last week, provides a "my religion made me do it" defense to allegations of discrimination based on sexual orientation. Hence the belief and fear that the Indiana statute is an affirmative attempt to provide a lawful basis for such discrimination. Such an attempt would surely run afoul of the Supreme Court’s invalidation of a Colorado constitutional provision that purported to do the same in Romer v. Evans (1996).

The legal issues attendant upon the judicial enforcement of this Indiana statute are enormously complex. They would amount to judges determining the centrality and sincerity of a person’s claimed religious practices to the core teachings of his religion. This type of determination by judges could only come about by an inquiry unknown in American jurisprudence (“Is this really taught by your church?” “Do you really believe this?” “How is your refusal to sell goods or services to this person central to your religious beliefs?”) and prohibited by the Free Exercise Clause, which the courts have held bars such judicial inquiries.

In the days before the federal Civil Rights Act of 1964, the late Sen. Barry Goldwater offered a neutral, non-racist common-law argument based on morality and property rights against that landmark legislation. He articulated the view that a seller of goods or services or real estate has a natural right to decide to whom he wishes to sell, free from government commands.

Goldwater paraphrased Thomas Jefferson, who argued that the only moral commercial transaction is one truly voluntary on the part of the buyer and the seller. That argument has an attractive leave-me-alone appeal to it; yet, the public policy of the nation since 1964 has unambiguously rejected it. Today in America, if you operate a public accommodation or deal in real estate, you cannot choose your customers; they choose you. This Indiana statute is arguably an effort to bring back the pre-1964 days with respect to sexual orientation.

Because discrimination based on sexual orientation is not prohibited by the Civil Rights Act of 1964, Indiana and all other states are free to prohibit it or to look the other way in the face of it. But they are not free to encourage it or to make it lawful.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Symposium on Economic Liberties and State Constitutions

The NYU Journal of Law & Liberty and Institute for Justice invite you to attend this first event of its kind. There has been a tremendous amount of scholarly attention devoted to both state constitutional law and economic liberties over the last few decades. Beginning on the one hand with Justice Brennan's 1978 Harvard Law Review article State Constitutions and the Protection of Individual Rights, and on the other with Bernard Siegan’s 1980 book Economic Liberties and the Constitution. But, there has been very little attention paid to the intersection of the two, and how state constitutions protect economic liberties.

This symposium will fill that void. It will address how state constitutions have and can be used to protect economic liberties separately from the U.S. Constitution.

When: Friday, April 10, 2015, 8:15 a.m.–12:30 p.m. Visit for a detailed schedule.

Where: Lester Pollack Colloquium Room, Furman Hall, New York University School of Law, 245 Sullivan St., New York, New York

To Register:  Please register via email to or and indicate if staying for lunch afterward. Registration & lunch are free, but space is limited. Reservations on a first-come, first-served basis.

CLE: Application for New York accreditation of this program is currently pending.

Livestream: Can't make the event? View the livestream at

Wanted: A Color-Blind Voting Rights Law

 Richard Epstein*



This past week in Alabama Black Caucus v. Alabama, the United States Supreme Court, by a five-to-four decision—with Justice Stephen Breyer writing for the four liberal justices plus Justice Kennedy—struck down Alabama’s redistricting plan for its state Senate and House of Representatives under the Equal Protection Clause of the Fourteenth Amendment. The issue arose as a result of a confluence of two powerful factors. First, the inevitable shifts in population densities between censuses make current districts noncompliant with the Supreme Court’s exacting numerical identity standard for state district. The second is the change in legislative control from Democrats to Republicans, allowing Republicans to imitate the Democrats after the 2000 census—to create districts with equal populations that will let Republicans nab seats in excess of their percentage of popular support.

The most common technique to skew political power gives the opposition party a smaller number of seats in which they hold commanding majorities, while reserving for itself a larger number of seats with smaller yet still safe electoral majorities. Politically, a 55 to 45 percent margin is roughly 99 percent as safe and stable as, say, a 70 to 30 percent margin. Given the detailed knowledge of race and voting patterns, it’s duck soup for any computer-savvy political caucus to implement the program.

In a sensible world, the best counter to these dangerous tendencies uses explicit formal requirements to remove this unpleasant form of tit-for-tat politics. Two constraints, taken together, could achieve this result in a relatively simple fashion. The first is to stick with a requirement of rough numerical equality across districts. The second is to require relatively compact districts, which look more like simple squares than some grotesque 28-sided monster that white citizens (outnumbered by 4 to 1) consciously created in Tuskegee Alabama in 1957 to block the possibility that newly enfranchised black residents would soon take over local politics. Six years after Brown v. Board of Education, the Supreme Court in Gomillion v. Lightfoot struck down this ploy under the Fifteenth Amendment, which provides that the "right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." 

But now that the political tables are turned, the Supreme Court, under its version of Tuskegee Modernactively encourages the use of these same racially constructed districts to increase the influence of minority voters relative to white ones. Since the Fifteenth Amendment is quite useless for that purpose, all attention shifts to the Fourteenth Amendment’s guarantee of Equal Protection under the laws, which was invoked in the stirring 1896 dissent of John Marshall Harlan in Plessy v. Ferguson aimed to usher in a color-blind Constitution.

No longer, clearly. The Supreme Court has made a U-turn to a race-conscious Constitution. At the passage of the 1965 Voting Rights Act, the systematic exclusion of black citizens from the polls prompted the adoption of strong preclearance measures to prevent subtle rearguard actions by entrenched public officials determined to perpetuate the old order. Those days are long gone, and in 2012 a sharply divided Supreme Court in Shelby County v. Holder rightly struck down the much-expanded use of preclearance procedures long after segregationists had lost any control over the political process. Essentially the majority held the expanded preclearance proceedings as inappropriate overkill in the absence of any evidence of current racial bias in the administration of the voting laws—a no-brainer in light of the high rates of black participation throughout the South.

Shelby County should be read to hold that the Supreme Court should no longer use the Equal Protection Clause to maximize overall black political influence, however defined. Nonetheless, Black Caucus only expands the use of race-based redistricting. To get a grasp of the doctrinal confusion, consider the Court’s current Equal Protection jurisprudence.

Its argument starts off innocently enough: electoral districting violates the Equal Protection Clause when race is the “’predominant’ consideration in deciding ‘to place a significant number of voters within or without a particular district,’ and the use of race is not ‘narrowly tailored to serve a compelling state interest.’” Next, that compelling state interest consists in “avoiding retrogression with respect to racial minorities’ ability to elect their preferred candidates of choice.” The odd word “retrogression” refers to language in the 2005 Voting Rights Act, which was intended to counter, at the very least, the possibility that the redistricting process might be used to increase the concentration of minority voters in the “majority-minority” districts. By reducing the minority votes, the anti-retrogression provision would stop any shrinkage in minority representation.

In Black Caucus, Alabama used, as it had to do, race at every stage in the process to create a new set of districts that it wanted to reflect the exact same black-white voting percentages in the prior reapportionment. Only a sophist could argue that these district lines were not motivated by race, given the use of systematic quotas. The sensible remedy is to nip the problem in the bud by striking down that raced-based process by using the population parity and compactness criteria mentioned above. Oddly enough, Justice Breyer thought that those tests were incomplete because they did not include “not splitting counties or precincts, minimizing change, and protecting incumbents.” The first of these is a rough proxy for compactness, the second is an independent value that may advance the attachment of local citizens to the political process. The third looks to be an inexcusable form of self-protection in any institutional setting.

Nonetheless, Justice Breyer’s uncritical acceptance of the “compelling state” interest to allow minority members to elect candidates of their choice is sadly perverse. In most other contexts, the compelling state interest test is an exacting one, which roughly speaking, cuts back on protected constitutional interests in order to preserve domestic order and to protect the nation from foreign aggression. Some form of extrinsic necessity is required for a careful and limited abridgment of constitutional rights.

How then does the conscious advancement of the political influence of African-American voters count as a socially compelling interest as opposed to the latest partisan ploy in the endless round of skirmishes over political control? This heavy-handed technique is no longer needed as a counterweight against systematic forms of institutional racism. If Shelby County was correct to condemn overly intrusive preclearance provisions, the same response is appropriate to any federal standard that prefers one class of voters to another on the ground of race—indeed on any grounds at all.

In dealing with this issue, moreover, the Supreme Court seems to make some unexamined but highly dubious empirical assumptions that the means chosen will fit the ends in question. But the set of social considerations do not lend themselves to these easy calculations. The original goal of the 1965 VRA was to increase black participation to the level of white participation. That end has already been achieved, at which point the influence of formerly disenfranchised voters is felt in every district in which they vote. Winning elective office is always an arduous task of stitching together complex coalitions, minority voters included, assuming that they vote as a block, which they need not do.

It is therefore fair to ask why, once the vote has increased, is it better socially for minority voters to be part of winning coalitions in multiple districts or to be the dominant players in a smaller number of districts? Owing to the immense variations in local politics, only the foolhardy would be confident which way the balance tilts. Ignoring race in redistricting does not strip minority voters of influence. But it does reduce the influence of the Alabama Black Caucus, whose number decreases if black voters are dispersed through multiple districts, leading to a deep conflict of interest between the Black Caucus and ordinary black citizens. The Black Caucus is composed exclusively of blacks elected to public office. A rule that refuses to make race-conscious classifications will surely thin its ranks, but may also increase the overall influence of black voters who are parceled out across multiple districts.

What is clear, regrettably clear, is that maximizing black representation upsets the overall political configuration. The creation of more majority-minority districts will move the representatives of those districts to the left, given the strong level of black support for the Democratic Party. By the same token, the remaining majority-majority districts will become more conservative as their candidates for office need not worry about the political preferences of non-members. Looked at in the round, race-conscious rules in drawing district lines lead to increased polarization of politics. It is hard to see why the Equal Protection Clause requires this divisive form of politics.

Nor are we sure how this will play out. The Supreme Court struck down Alabama’s prior redistricting and ordered a new one. But the Court left it unclear exactly what principles shall govern this second go around. Is it really the case that the system will be unconstitutional unless Alabama maximizes the number of majority-minority districts with, say, 55 percent votes? Can it do less? If so, by how much? Can it achieve the same result by different means, stating explicitly that it is trying to increase the number of heavily majority-Democratic districts in order to maintain the Republican chokehold of the Alabama House and Senate? None of these alternatives are defensible as a matter of first principle.

This sorry episode once again validates a central theorem of constitutional law. Once a legal system goes off the rails on its major premises, it cannot undo the institutional damage by fine-tuning the rest of the system. Today, it is untenable to invoke the Equal Protection Clause when so many simple race-blind rules are available to handle districting. In the end, Justice Thomas’s sole dissent was right to callAlabama Black Caucus the latest installment in the “disastrous misadventure” of the Supreme Court’s voting rights case law. The Supreme Court should scrap its unsound Equal Protection case law and return to the simpler principles of Gomillion v. Lightfoot, which thankfully addresses a once terrible set of problems already solved by the political and legal process.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

On Lapses in the Law: The Affordable Care Act's Lemon Doughnut

Max Raskin*

Often the real world is stranger than the hypotheticals we mere law students can conjure up. My friend Jack Millman recently published a paper in the Ohio State Online Law Journal detailing one of these real world lapses in the law that currently exists as a result of the Affordable Care Act and the Supreme Court’s decision upholding its key provisions.

Having some fun with the doughnut hole, Millman offers a unique tax-planning stratagem that would benefit those in the doughnut’s hole – hit the slots.

Individuals are eligible for health insurance subsidies under the Affordable Care Act if their incomes are between 100 and 400 percent of the federal poverty level. Because some states have chosen not to expand Medicaid, there is a group that falls below this range, but also outside of Medicaid coverage. It is estimated that about five million Americans are too poor for Obamacare, but too rich for Medicaid. As Millman contends, this was almost certainly not the intent of the Act, but it is the situation that currently exists.

Having some fun with the doughnut hole, Millman offers a unique tax-planning stratagem that would benefit those in the doughnut's hole – hit the slots. By going to a casino and gambling, an individual can inflate their estimated income and become eligible for subsidies – benefits that could be worth thousands of dollars.  Because the subsidies are based on estimated income, the actual result of the gambling should not matter as long as the transaction is properly structured.  And even if the taxpayer ends up with an actual income under 100 percent of the federal poverty level, the amount of subsidies they have to repay are capped at $300 or $600 for a family.

For Whiggish optimists on all sides of the political spectrum, this situation will be rectified sooner, rather than later. An example from the Establishment Clause might be instructive to show how real-life absurdities lead to a refiguring of doctrine.

The doughnut in the ACA is bad for your health. 

The doughnut in the ACA is bad for your health. 

In the 1980s, there were two competing strains of doctrine dealing with government aid to religious schools. The first was the separationist view, codified in the Court’s Lemon Test, which held that the government would be impermissibly entangled with religion if it tried to ensure the aid it gave would be purely secular. The second was a strain that, among other things, stressed the neutral manner in which the aid was distributed, the secular motivations of the legislators, and the benefits to the children. These two strains led to a series of cases where the comedy of line drawing reached noticeable proportions to members of the Court as well as legislators. In a school prayer case called Wallace v. Jaffree, then-Justice Rehnquist derided the Lemon Test for the odd conclusions it was generating, “For example, a State may lend to parochial school children geography textbooks that contain maps of the United States, but the State may not lend maps of the United States for use in geography class. A State may lend textbooks on American colonial history, but it may not lend a film on George Washington, or a film projector to show it in history class.” Posed differently by Senator Daniel Patrick Moynihan, acting as a Socratic law professor: “What about atlases?”

These fractured opinions led to a rethinking about the government aid jurisprudence and eventually the Court reversed some of its earlier thinking, establishing a more permissive approach to government aid. For the less cynical optimists, this doctrinal shift was not merely a response to personnel changes in the Court, but rather a reasoned reaction to the playing-out of unreasonable theoretical doctrine.  

Today, we have an untenable situation with five million Americans falling into the gap caused by a combination of judicial doctrine and legislation. It is analogous to allowing students of religious schools to have geography textbooks filled with maps, but denying the maps themselves.

The reason I am writing is to say that if the Whig theory of the law is correct, which is to say that the arc of jurisprudence tends towards justice and coherence, then something’s gotta give.

*Max Raskin is a J.D. Candidate in the Class of 2016 at New York University and a Staff Editor for the Journal of Law & Liberty.