Primary Colors

I'll be teaching a class on constitutional rights at Bellarmine University this fall. While preparing, and as we all struggle to survive what seems like a never-ending primary election season, a line of Supreme Court cases dealing with primary election discrimination grabbed my attention.

In the 1920s, Texas passed a law explicitly prohibiting African Americans from participating in Democratic party primary elections:

[I]n no event shall a negro be eligible to participate in a Democratic primary election held in the State of Texas.

At the time, the Democrats totally dominated Texas politics and the primaries were often more important than the general elections because Republicans (still then the "party of Lincoln") had no chance. The Ku Klux Klan had also grown very powerful in the state, so much so that an avowed knight of the order, Earl Mayfield, won the Democratic primary for U.S. senate in 1922 (and then defeated another Democrat who switched parties for the general election).

Excluding black voters from the Democratic primaries essentially negated their right to vote in any meaningful way, and even though they were still able to vote in the general election, the Texas law was a blatant violation of the Fifteenth Amendment (which explicitly prohibits racial discrimination in voting). Not only that, but it also violated the Fourteenth Amendment, which requires equal protection under the law.

In a case called Nixon v. Herndon, Justice Oliver Wendell Holmes, writing for a unanimous Supreme Court in 1927, said of the Texas law:

We find it unnecessary to consider the Fifteenth Amendment, because it seems to us hard to imagine a more direct and obvious infringement of the Fourteenth… The statute of Texas…assumes to forbid negroes to take part in a primary election…, discriminating against them by the distinction of color alone. States may do a good deal of classifying that it is difficult to believe rational, but there are limits, and it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right set up in this case.

The Supreme Court ruled clearly: an explicit legislative exclusion of African Americans from the primary process was unconstitutional. So Texas, still dominated by racist Democrats and the Klan, tried again. A new law was passed the same year as the Herndon decision stating that "every political party...shall have the power to prescribe the qualifications of its own members and shall in its own way determine who shall be qualified to vote..." (Article 3110, Revised Civil Statutes of Texas).

With this legislative hall pass in hand, the Democratic Party of Texas updated their membership rules in 1928:

Be it resolved that all white democrats who are qualified under the Constitution and laws of Texas and who subscribe to the statutory pledge provided in Article 3110, Revised Civil Statutes of Texas, and none other, be allowed to participate in the primary elections.

The new rule excluded blacks from being members of the Democratic party, and thus excluded them from participating in the Democratic primaries (which were closed to non-members), and thus excluded them from effectively participating in the electoral politics of their state.

Another lawsuit followed, and once again, it reached the Supreme Court, this time as Nixon v. Condon in 1932. In a 5-4 majority opinion, Justice Benjamin Cardozo (joined by Hughes, Brandeis, Stone, and Roberts) rejected this new discrimination-through-proxy scheme and struck it down:

The test is not whether the members of the [Democratic Party] Executive Committee are the representatives of the State in the strict sense…. The test is whether they are to be classified as representatives of the State to such an extent and in such a sense that the great restraints of the Constitution set limits to their action. [This] case is seen to be ruled by Nixon v. Herndon. Delegates of the State's power have discharged their official functions in such a way as to discriminate invidiously between white citizens and black. The Fourteenth Amendment, adopted as it was with special solicitude for the equal protection of members of the Negro race, lays a duty upon the court to level by its judgment these barriers of color.

As "delegates of the State's power," the Democratic Party's actions brought it within the prohibitions of the constitution. Such delegation was not particularly hidden, either, because the nefarious party resolution actually cited the enabling Texas statute.

Undeterred by two straight losses, the Texas Democrats took a different, more clever tack. At the party convention of 1932, they issued a new resolution which omitted any language specifically excluding blacks from the party and any reference to Texas state law:

Be it resolved that all white citizens of Texas who are qualified to vote under the Constitution and laws of the state shall be eligible to membership in the Democratic party and as such entitled to participate in its deliberations.

Despite the change in language, the effect was the same. Black voters couldn't be Democrats or vote in the Democratic primary, which was still the only meaningful electoral contest in Texas.

A third lawsuit against this "white primary" rule reached the Supreme Court as Grovey v. Townsend. But though the composition of the Court was identical to that which decided Condon, the challengers fared far worse. This time a unanimous Court ruled against black voters and in favor of the Texas Democrats.

Why? Because now the Court found no state action involved, either direct or through delegation of power. Political parties are private entities. As private entities, they can make their own rules. According to Justice Owen Roberts, writing for the Court:

The legislative assembly of the state…has never attempted to prescribe or to limit the membership of a political party, and it is now settled that it has no power so to do… We are not prepared to hold that, in Texas, the state convention of a party has become a mere instrumentality or agency for expressing the voice or will of the state… The argument is that, as a negro may not be denied a ballot at a general election on account of his race or color, if exclusion from the primary renders his vote at the general election insignificant and useless, the result is to deny him the suffrage altogether. So to say is to confuse the privilege of membership in a party with the right to vote for one who is to hold a public office. With the former, the state need have no concern…

The Democratic Party was allowed to make its own rules and as long as Texas wasn't compelling them or enabling them to discriminate, the Court viewed itself as powerless to intervene.

African Americans could now effectively be excluded from the political process in Texas despite the Fifteenth Amendment.

But years later, in a case arising in a different state with a very different set of facts, the constitutional climate changed. In 1940, Louisiana election officials were charged with a federal crime for altering and miscounting ballots in a Democratic primary election. The indictments could only be upheld if the primary election was considered to implicate a right "secured by the Constitution."

Louisiana was much like Texas in that the Democratic party was so dominant that the only meaningful elections were Democratic primaries. As such, an official's interference with that process interfered with voters' constitutional right to vote. Writing for the Court in United States v. Classic, Justice Harlan Stone explained:

Unless the constitutional protection of the integrity of ‘elections’ extends to primary elections, Congress is left powerless to effect the constitutional purpose, and the popular choice of representatives is stripped of its constitutional protection…
[A] primary election which involves a necessary step in the choice of candidates for election…, and which…controls that choice, is an election within the meaning of the constitutional provision...

And thus the landscape had shifted, and a new challenge to the Texas party rule was possible. Like in Louisiana, the Democrats controlled Texas so totally that their primary elections were de facto general elections. Though United States v. Classic involved no racial discrimination, the case became a weapon against the exclusion of black voters.

A fourth challenge to the Democrats' scheme was launched and reached the Supreme Court as Smith v. Allwright in 1944. The 1932 party resolution attacked in Grovey was still in effect, but this time it did not survive.

Justice Stanley Reed delivered the near-unanimous opinion of the Court:

This grant to the people of the opportunity for choice is not to be nullified by a state through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election. Constitutional rights would be of little value if they could be thus indirectly denied. The privilege of membership in a party may be, as this Court said in Grovey v. Townsend, no concern of a state. But when, as here, that privilege is also the essential qualification for voting in a primary to select nominees for a general election, the state makes the action of the party the action of the state.

States are prohibited by the Fourteenth and Fifteenth Amendments from discriminating by race, so, as a state action, the racist Democratic Party resolution was unconstitutional.

Finally, after more than twenty years, the Texas "white primary," and all explicitly racial primary election exclusions like it, was struck down. Of course, other, more oblique schemes (like the literacy test) would survive until the Voting Rights Act was passed in 1965, but a significant hurdle to full electoral participation by African Americans had finally fallen.

Can There Really Be a Conflict Between the First and Fourteenth Amendments?

In his dissent to Obergefell, Justice Clarence Thomas raised the specter of a conflict between First Amendment rights and the Supreme Court's concept of liberty under the Fourteenth Amendment.

Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect...
Numerous amici—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” Brief for General Conference of Seventh-Day Adventists et al. as Amici Curiae 5. In our society, marriage is not simply a governmental institution; it is a religious institution as well. Id., at 7. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.

Justice Thomas does not specify from where exactly these "demands to participate in and endorse civil marriages" will come, however. If those demands are purely social, from individuals and other religious groups, then they are of no concern to the Supreme Court. The First Amendment protects individual free exercise from government action, not from public criticism or social pressure. Unless the government starts demanding that churches perform certain kinds of weddings (it doesn't currently, has never in the past, and won't in the future), no First Amendment infringement seems possible.

But still, this weak argument aside, could the Supreme Court have created the possibility of a conflict between the First and Fourteenth Amendments? In previous writing I have assumed that such a conflict might be possible (but nevertheless the Fourteenth should triumph over the First). But I have thought more about it and now I'm not so sure a conflict is really possible.

Both the First and Fourteenth Amendments constrain government action. The First Amendment says the government can't infringe our rights to speech, petition, assembly, and religion. And not only is our religious free exercise protected, but we are also protected from any formal establishment of a state religion which might exclude non-believers. The Fourteenth Amendment, for its part, requires that the government provide due process before any deprivation of life, liberty, or property, and that it provide equal protection under the law.

So how, exactly, can these two amendments conflict? The right of someone else to get a state license for their marriage doesn't interfere at all with anyone's personal beliefs. It doesn't compel an individual, private citizen to act in any sort of way, either. Churches can still turn gay couples away. Ministers can refuse to solemnize certain marriages they don't condone. Parishioners can shun whoever they find distasteful. Obergefell changed none of that.

Opponents of Obergefell conceive of only two possible scenarios where a conflict between the First and the Fourteenth Amendment can arise.

The first is the possibility that discriminatory religious organizations might lose tax exempt status. In the case of Bob Jones University v. United States, 461 U.S. 574 (1983), a religious school lost tax exempt status because it prohibited interracial dating among students. This was such a flagrant violation of the legitimate government policy of integration and anti-discrimination that the IRS revoked the school's tax privileges. There's an important distinction here: tax exempt status is not a religious right. It is a privilege extended by the government consistent with larger public policies. Whether a religious organization is tax exempt or not has no effect on the individual religious beliefs of its members or its administration. They are free, as individuals, to oppose interracial (or same-sex) marriages in their individual lives, but they can't discriminate in public and expect to receive public benefits for it.

The other situation is the now-familiar case of county clerks in Kentucky. They are denying marriage licenses either to all couples or just to same-sex couples in protest of Obergefell. The clerks argue that their First Amendment religious rights are infringed by having to issue licenses to couples they dislike. But courts have never recognized a right of public officials to exercise their religious beliefs when acting in their official, public capacity. Clerks can certainly believe whatever they want, and in their private lives away from work they can shun anyone they believe is sinful. But when they're at work as county clerks, they are the government. If there is any constitutional conflict at play, it's perhaps an internal conflict within the First Amendment between the Establishment Clause and the Free Exercise Clause. The Establishment Clause prevents the imposition of religious whim by government officials in order to preserve equality for all. In that way, the First Amendment and the Fourteenth Amendment work in conjunction. They don't conflict.

The Supreme Court has previously explained how the First Amendment and Fourteenth Amendment actually work together to preserve individual liberty from government oppression. In West Virginia State Board of Education v. Barnette, the Court struck down mandatory recitations of the Pledge of Allegiance in public schools. The Barnettes, a family of Jehovah's Witnesses, argued that their personal beliefs relegated the authority of the state below the authority of god. Therefore they could not swear an oath or allegiance to the national flag, as mandated by the public school system. They argued that under both the First Amendment and the Fourteenth Amendment, the government could not single out their children for punishment when they refused to say the Pledge due to their religious convictions.

The Supreme Court agreed with the Barnettes. In doing so, the Justices noted that the First Amendment and the Fourteenth Amendment actually work together, protecting the liberties of individuals from government intrusion and compulsion. The Fourteenth Amendment, rather than an enemy of religious exercise and free speech rights, is a tool for their protection:

In weighing arguments of the parties it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a "rational basis" for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect. It is important to note that while it is the Fourteenth Amendment which bears directly upon the State it is the more specific limiting principles of the First Amendment that finally govern this case.

319 U.S. 624, 639 (1943).

In the two situations above, where modern proponents of theocracy foresee a conflict between the First and Fourteenth Amendments, there is no government action infringing on free exercise. The revocation of tax exempt status does not compel a change in religious beliefs. It may incentivize religious schools to stop discriminating, but it does not force them to do so. They can continue to discriminate, but they will have to pay taxes in the meantime, just like religious individuals who are also free to discriminate but don't get a tax break for doing so.

And the provision of marriage licenses to same-sex couples doesn't stop religious individuals or organizations from hating and shunning gay people or politically opposing such unions. But county clerks do not act as individuals. They are the government, and as such, they cannot use religious free exercise as an excuse to treat some citizens differently and deny government services to them. When they do so, they create a conflict not between the Free Exercise Clause and the Fourteenth Amendment, but between the government and the Establishment Clause.

The Obergefell Dissents - C.J. Roberts Part IIB

Slowly but surely, I'm analyzing the dissenting opinions to Obergefell v. Hodges, the Supreme Court case that struck down state bans on gay marriage. I'm still working on the longest of those opinions, the one written by Chief Justice John Roberts, section by section. It's the longest one, and there is a lot to talk about. Previous installments are as follows:

Today, I turn to Part IIB, where the Chief Justice does his best to show that all the cases declaring a "fundamental right to marry" don't really create a fundamental right to marry, and even if they did, it wouldn't apply to gay people simply because they picked the wrong kind of people to fall in love with. And even though our concept of marriage has dramatically changed over time, it hasn't really changed, and changing our concept now would actually change the institution itself and then it wouldn't be marriage anymore. Something along those lines.

Justice Anthony Kennedy's majority opinion spent a lot of time talking about past cases which repeatedly declared there to be a "fundamental right to marry for all individuals." Specifically, he leaned on Turner v. Safley, Zablocki v. Redhail, and the biggest one, Loving v. Virginia. The way the majority saw it, if the states in those cases needed a really good reason to prohibit child support deadbeats, prisoners, and interracial couples from marrying, states today should also need a good reason to prohibit same-sex couples from marrying. Chief Justice Roberts disagrees. Those cases don't require that conclusion at all, he says. Those cases:

This is easily the most "lawyerly" passage in the entire dissent. Portraying these two concepts as mutually exclusive is wrong and misleading. Those cases did consider marriage to be a fundamental right for all people, and therefore, states must justify any barriers that they impose on access to marriage. One of those barriers was based on the race of the partners. One was on incarceration status. Another was on the status of child support payment. One might think that gender, as another status used as a barrier, would similarly need a compelling or important justification. Not so, according to the Chief Justice.

"None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman," Roberts writes. And just as Judge Jeffrey Sutton of the Sixth Circuit did before, Roberts goes to great lengths to distinguish Loving, the most obvious case supporting the position of the same-sex couples in Obergefell:

This is a tad confusing, because the interracial marriage ban challenged in Loving was not "at common law,"and did, very specifically, criminalize such marriages and declare them summarily void in the state. Declaring a specific type of marriage instantly void is of course not explicitly defining marriage to be something else, but it has the same practical effect.

At any rate, even conservative Justices recognize now that removing racial barriers to marriage didn't change what marriage was, but a lot of people didn't think that in 1967 and before. In 1955, the Supreme Court of Virginia upheld its interracial marriage ban in a now-infamous decision called Naim v. Naim:

The institution of marriage has from time immemorial been considered a proper subject for State regulation in the interest of the public health, morals and welfare, to the end that family life, a relation basic and vital to the permanence of the State, may be maintained in accordance with established tradition and culture and in furtherance of the physical, moral and spiritual well-being of its citizens.
We are unable to read in the Fourteenth Amendment to the Constitution, or in any other provision of that great document, any words or any intendment which prohibit the State from enacting legislation to preserve the racial integrity of its citizens, or which denies the power of the State to regulate the marriage relation so that it shall not have a mongrel breed of citizens. We find there no requirement that the State shall not legislate to prevent the obliteration of racial pride, but must permit the corruption of blood even though it weaken or destroy the quality of its citizenship. Both sacred and secular history teach that nations and races have better advanced in human progress when they cultivated their own distinctive characteristics and culture and developed their own peculiar genius.

197 Va. 80, 89-90 (1955).

Before Loving, many judges believed that marriage, as "a relation basic and vital to the permanence of the State," had to be kept segregated to "preserve the racial integrity of its citizens." It was strongly believed that allowing whites to marry blacks would "change what a marriage was." Not only that, integration would "weaken or destroy the quality" of citizenship itself! 

Chief Justice Roberts' version of marriage law history is that of a revisionist. But he must portray history this way or his argument falls apart. He ignores the incredible cultural battle waged when Mildred and Richard Loving sought recognition of their marriage in Virginia just a few years after Naim v. Naim, reducing it to a "well duh, interracial marriage was no big deal" throwaway distinction of their case. Sure, Chief Justice Roberts seems to say, the Loving's sought the same old marriage we've always had, but not gay couples. They seek something totally different.

The right the Obergefell petitioners seek, says the Chief Justice, is not the fundamental right to marry as the Supreme Court has repeatedly called it, but a new right, a "right to make a State change its definition of marriage."

By that same logic, didn't the Lovings seek to make Virginia change its definition of marriage as only between people of the same race? The Chief Justice says no, because Virginia didn't explicitly define marriage that way. But if a state law specifically prohibits interracial marriage, isn't it effectively defining marriage as an institution between only people of the same race?

Regardless, the argument that the Lovings didn't seek to change the definition actually lends support to the couples in Obergefell. In Virginia, one example of marriage is a marriage between two people of the same race. That kind of marriage still exists and is still the most predominant example of marriage across the country. Only the barrier to an additional form of marriage was struck down. Marriage itself - the civil bond between two people to share property, medical decision-making, and maybe children - wasn't changed at all. Access to it was merely expanded.

The couples in Obergefell merely sought access to the same institution long enjoyed by different-sex couples, just as the Lovings sought access to the same institution previously only enjoyed by same-race couples.

In the next subsection, Chief Justice Roberts distinguishes cases cited by the majority such as Griswold v. Connecticut (contraception by married couples), Eisenstadt v. Baird (contraception by unmarried couples), Olmstead v. United States (wiretapping), and Lawrence v. Texas (gay sexual activity). These are "privacy" cases, he writes, that dealt with criminal statutes - government intrusions different from a civil ban on gay marriage. They don't apply to restrictions on civil benefits.

What Chief Justice Roberts calls "privacy," Justice Kennedy calls "autonomy." Those concepts are related but not exactly the same. Griswold and Eisenstadt gave sexually active different-sex couples the autonomy to choose contraception instead of childbirth without the threat of government penalty. Lawrence gave gay couples the autonomy to engage in sexual activity and not have to face arrest and jail time for it. Those cases, in Justice Kennedy's view, carved out a realm of personal autonomy that should be free of unjustified government regulation. So, too, marriage. Because marriage is a fundamental right, even a civil restriction with no criminal penalty is still a type of government intrusion that must be justified by an important or compelling government purpose. "It's always been this way" is not enough.

"Autonomy," the way Chief Justice Roberts sees it, however, is a gateway to anarchy:

If asked to list as many examples of "free-wheeling autonomy" as I could, "getting married" would probably not show up on the list. Marriage, for many people, signifies the end of the free-wheeling period of their life in exchange for permanence and stability. It is odd to frame the desire of same-sex couples to get married - something different-sex couples, at least of the same race, have always enjoyed with minimal restrictions - as some kind of wild idea that finds support in just one out-of-favor case.

Roberts acknowledges that "the majority does not suggest that its individual autonomy right is entirely unconstrained." But he dismisses those constraints as arbitrary, in line only with the majority's "own reasoned judgment," similar to the kind he repeatedly criticizes in Lochner. But the autonomy the majority recognizes is not something new. It's an old form of autonomy already - and repeatedly - recognized by the Supreme Court as fundamental. We're talking about the autonomous right to get married, not something like the novel, autonomous right to suicide claimed in Washington v. Glucksberg.

This obvious fact nearly unavoidable, Chief Justice Roberts turns to slippery slopes as a distraction:

First of all, if Chief Justice Roberts dislikes plural marriage and doesn't believe there's any Constitutional basis to strike down its prohibition, he should probably not make future petitioners' arguments for them. That tactic backfired notoriously on Justice Scalia in his dissent to Lawrence v. Texas in 2003:

Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution?" Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

539 U.S. 538, 604-605 (2003). Not coincidentally, these words were cited by many district court judges when they struck down state gay marriage bans prior to Obergefell.

Chief Justice Roberts attempts to disarm critics of his parade of horribles, making sure to say that he does not "mean to equate marriage between same-sex couples with plural marriages in all respects," and noting that "there may well be relevant differences that compel different legal analysis." I would say the analysis would be the same: all individuals have a fundamental right to marry who they want to marry. If they want to marry more than one person simultaneously, and the state prevents them from doing so, then the state has to justify the restriction. Maybe the states have good reasons to prohibit plural marriage, and they'll win some future case. But in this case, they couldn't produce any good reasons to prohibit same-sex marriage. No justification the states trotted out could pass any form of scrutiny except in the eyes of the Sixth Circuit and the minority of dissenters in Obergefell. Plural marriage may fare worse, but simply saying that the marriage some people seek is not really marriage at all even though it involves all the same basic elements (love, commitment, property sharing, children) is disingenuous and hopefully will not carry the day in some future plural marriage case.

In the final subsection of Part IIB, the Chief Justice takes on "the harm principle," which the majority in Obergefell only touched on but Judge Richard Posner of the Seventh Circuit fully embraced in his opinion striking down the gay marriage bans in Indiana and Wisconsin. In short, the principle generally holds that a government regulation is not rational when it restricts activity that does not harm the actor or third parties. In other words, regulations based on morality or tradition alone cannot withstand any form of scrutiny when they regulate non-harmful behavior.

For pragmatists like Judge Posner, this seems quite obvious: why should government be allowed to regulate non-harmful personal choices just because it wants to? But to supporters of the majoritarian imposition of moral codes, this is crazy talk. To them, the arbitrary beliefs of the majority can interfere with personal autonomy if the majority so chooses - even when only a small, identifiable minority of the population is specifically targeted for this interference. Like when Texas banned consensual sexual acts between gays and lesbians but not those exact same sexual acts between straight people.

To Chief Justice Roberts, the arbitrary beliefs of judges who favor individual autonomy over collective moral imposition must defer to the arbitrary beliefs of voter majorities:

If the majority in Obergefell "overlooks our country's entire history and tradition," then so did the Supreme Court in Loving v. Virginia. Anti-miscegenation laws, after all, dated from before the American Revolution. By that same logic, the Court in Brown v. Board of Education overlooked America's entire history and tradition of slavery and then Jim Crow segregation. Not only overlooked it, but repudiated it in full. But Chief Justice Roberts cites favorably to those revolutionary decisions as not just welcome but obvious. The distinctions he makes between the rights sought in those cases and the right sought by the Obergefell petitioners thus ring hollow. What we viewed as integral to both education and marriage at the time Brown and then Loving were decided - total segregation of the races - we now view as obvious governmental overreach without legitimate or compelling justification. Roberts thinks that the repudiation of history and tradition was fine in those cases but not in the one before him.

The Obergefell majority did not overlook American history and tradition. It fully acknowledged our history and tradition of inequality and moral intrusion into harmless personal autonomy. But it did repudiate it, and rightly so.

Media Coverage of the Rowan County Clerk Case

As the Eastern District of Kentucky hears a motion to hold Rowan County Clerk Kim Davis in contempt, national media coverage of the case has picked up.

This morning, I appeared on Democracy Now! to discuss the legal issues in the case and our clients' position. Public officials cannot use their religious beliefs as an excuse to deny rights and government services to other people. Ours is a simple argument, and the courts so far have ruled totally in our favor. Allowing religious whims as an excuse for public officials to discriminate would nullify the Fourteenth Amendment.

In other news appearances, my colleague Dan Canon has been making the rounds. He appeared on Al Jazeera on Tuesday and on Nightline yesterday.