Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to firstname.lastname@example.org; please put "blog comments" in the subject line.
This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. As we noted in Eisenstadt, there is a right "to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." By acting to penalize the pregnant teacher for deciding to bear a child, overly restrictive maternity leave regulations can constitute a heavy burden on the exercise of these protected freedoms. Because public school maternity leave rules directly affect "one of the basic civil rights of man," the Due Process Clause of the 14A requires that such rules must not needlessly, arbitrarily, or capriciously impinge upon this vital area of a teacher's constitutional liberty.
To continue my recent discussion of cases related to Roe v. Wade, the subject case -- involving challenging the constitutionality of mandatory maternity leave rules -- was cited in my Landmark Cases analysis. Not that I need an excuse to expound on legal matters, but perhaps this holiday season (saw a cite on Twitter or Facebook that there were over twenty holidays in this general time period, making that term fitting) has a special connection to family/children to make it germane. Okay, reaching.
What stood out for me in a way to lead me to discuss this here is the concern that Roe did not properly connect the general principles of its precedents to the specific issue at hand. A criticism that to me has some bite and is avoided by the two substantive concurrences and various lower courts opinions such as YWCA v. Kugler did do a much better job here. See also, the fashion the opinion explains the viability line, which even the author did better job in later opinions, which Abele v. Markle (which more than one justice various accounts note found very helpful) to me more helpfully expresses. And, to be fully fair, some opinions/dissents did a better job (if to me, not convincingly) than the dissents to fit the cases toward upholding the laws.
But, my general argument is that (1) Roe is not uniquely bad here and (2) it isn't as bad as all that. Take this very case. I noted it to suggest the range of cases the general principles involved would cover -- the timing of children, decisions regarding childbirth itself (including working while pregnant), questions having to do with child-rearing (which shows affecting third parties isn't as much of a game changer as some suggest here, especially when the "party" is directly interfering with a person's body and is not a constitutional person) and so on. The collection of cases even goes back further -- marriage, e.g., is protected for various reasons, but children clearly has an important role in the mix. And, intimate association itself is protected as part of the long arc of the process that might eventually result in the formation of family including children. Abortion is again only one part of the whole web, including (cf. China) the right not to have one.
It seems fairly obvious -- and even those courts that upheld the regulations didn't disagree -- abortion at least fits into the ambit of the cases. The issue then turns on balancing the rights with the state interests involved and seeing if the regulations do not unjustly abridge the rights, especially if the state interests are compelling. As Roe v. Wade noted:
Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.
The argument again is that the opinion should have done more to explain how abortion specifically fit into past cases beyond a string citations that summarized the positions of the cases involved. The maternity leave cases here, however, did basically the same thing -- provided a summary of past cases and say that the policy here interfered with the rights involved. (I merely removed the case citations and inserted the abbreviation "14A") Then, it dealt with the details of the program and argued how it was arbitrarily deprived here. Roe also noted the "heavy burden" forced pregnancy entailed, adding a bit of detail in fact. The opinion might be praised for not applying a so-called "legislative" test akin to the trimester scheme, but I'm concerned with another criticism here.
Again, I think some criticism of the opinion is fair, especially if it is done with some degree of nuance. The issue at hand -- the right to have an abortion in a broad fashion -- might have generally seen obvious to the justices (note they were generally older white men over sixty, the two of three under sixty dissenting) but it still was not something blindly obvious to the people at large. The opinion needed some more analysis specifically tied to the constitutional right at issue. The long history section was useful in this respect but was probably overdone while the constitutional analysis was underdone. Justice Douglas was encouraged to add a bit more detail in Griswold and that involved something even the Catholic Church accepted as appropriate. Maternity leave was less serious as well.
Breadth of fault, however, is important. And, when the problem amounts to something that could have been handled with a page or two more analysis -- to me fairly easily inferrable from what was included -- the fault is acceptable. More so, when concurring opinions -- as with Griswold, which also was appealed to by lower courts for clarity -- fleshed things out in a way perfectly in harmony with the main opinion. The cheap shot nature of some criticisms is a major concern of mine though at the end of the day it is up to the people in charge to deal with the nature of things there. It might be tiresome at times to have to factor in people who are on the merits wrong and/or flaying about. But, feeling superior only gets you so far.
I'll end with a case in point that continues to bother me. Town of Greece v. Galloway involved the use of prayers before town meetings. The complaint specifically was not that no such prayers are allowable, even if one or more of the litigants wanted that given their druthers (see my comments here). It was that the specific program as applied was illegitimately sectarian.* But, the advocate for the litigants fell in a pit right at the beginning of his argument, an advocate who as a leading scholar in this area should really have known better. He argued the prayers themselves were the problem, leading to Alito et. al. to pounce and ultimately for advocate to in effect throw at least one of his clients (an atheist) off the bus by noting that no prayer under the system allowed would satisfy such people.
The whole thing is depressing. The advocate for the town was asked to provide an example of a non-religious substitute for a prayer, something the justices (and the liberals didn't help here by their silence on the point) seemed to think impossible. He eventually cited a case involving such a thing and there are quite a number examples of humanists and so forth giving just that sort of invocation. Why was it so hard for Douglas Laycock to cite such things here? The confusion was partially of his own doing, but went further in a way to underline the very problem -- mild as compared to other places it might be, but our system continues to favor certain faiths over others in certain respects. And, it is done so in a way to make it seem so mundane that another approach seems downright strange.
The confusion very well might be seen as stupid to some people given what to some should be an obvious point. Tough luck with that -- you have to deal with the situation at hand and try to do the best you can given the "Overton Window" of current society. You won't win everyone over, obviously, but you need to put your best argument forward.
* Douglas Laycock appeared to try to put forth a narrow argument to attract Justice Kennedy's vote here, including the use of the coercion test. Also, the town meeting nature of the proceeding was seen as a harder question than a purely legislative prayer. First, Kennedy flagged during orals that he was unconvinced with the latter line. The primary dissent largely relied on just that. Second, as suggested, he fell into a sort of trap -- concern for sectarian prayers was seen by Justice Kennedy as overly intrusive though his opinion put in some limits that made things a tad confused there. As noted by the dissent, the very program at issue did not fully meet the tests set forth.
To be fair, the one legislative prayer precedent implies non-sectarian prayers are appropriate, if not specifically requiring that. A non-sectarian program -- that is, a priest, rabbi, Wiccan, humanist all individually can have sectarian invocations but as a whole a wide breadth of views are present -- still raises line drawing issues, but arguably not as much.
So, there was a point to the approach taken, but still think it was misguided and confusingly set forth. And, given Justice Kennedy's previous expressed views in non-school cases, the overall strategy seemed questionable. Would it not have been more useful to honor a comprehensive inclusion of invocations of all types in this context and in effect argue an equal protection violation as applied? You need to make your argument the best way given the overall audience. Such is my overall theme.