First, let me thank those who have followed this online debate and especially those who have contributed to it. This being my first blog debate, I was unsure how it would be received. But I have been pleased not only by the quality of the commentary, but also by the genuine interest in what I believe is a very important case.

I have three primary reactions to John’s latest statement and then conclude with two general observations.

First, a final note on the factual discussion. John has highlighted his client's version (which the town may or may not have been able to prove at trial) in an effort to justify in the public's mind the Court's disturbing decision. The town obviously prefers the version that has its police scouring "one end of town to the other" to Ms. Gonzales's version -- the version that was actually before the district court, the 10th Circuit, and the Supreme Court -- which has the police doing nothing but essentially ignoring her as her children are murdered. In the motion to dismiss posture, this case was decided on Ms. Gonzales's allegations, which is why I highlight them. Moreover, it is important to remember that this was a procedural due process case. Though the town pretends that anyone disappointed by bad policing could sue, that is not accurate. Ms. Gonzales would not have had a case if the police had considered her complaint and told her that there was no probable cause to believe a violation had occurred (as the town now alleges). A procedural due process claim like this requires an allegation that the plaintiff was ignored.

The district court ruled for Castle Rock on a motion to dismiss, not even a motion for summary judgment, so there was nothing outside the allegations in the initial complaint. The facts alleged in the complaint are principally as Richard states, but they are not supported by the actual documentary evidence. During the recorded 911 call at 8:45 p.m., for example, Mrs. Gonzales stated that she knew that Mr. Gonzales was not violating the restraining order and that, as a result, there was nothing the police could do. And in the first 911 call, Mrs. Gonzales admitted to police that she had authorized the dinner visit. Moreover, one important assertion by Richard of even the alleged facts is wrong; he says that the restraining order ordered Mr. Gonzales not to molest or disturb the peace of Mrs. Gonzales or her children “in part because [of his] history of suicidal threats and eratic behavior.” The restraining order contains no allegation of suicidal threats, eratic behavior, or violence of any kind, much less a finding of such behavior. The allegation of suicidal threats and eratic behavior exists only in paragraph 11 of the complaint, without any reference to the restraining order, or even any allegation that Mrs. Gonzales ever conveyed this concern to police. The simple fact is that the restraining order at issue here was a standard order issued incident to a divorce proceeding, not one based on any claim of actual or threatened domestic violence.

My point in raising the actual facts was not to “mischaracterize the operative facts” on which the legal issues were determined, but to demonstrate just how easy it would be, had this case come out differently, so force municipalities into Court every time there is a call on a restraining order that did not produce the result desired by one party or the other. Given what the police knew—that the restraining order authorized prearranged mid-week dinner visits (actually, whether or not Mrs. Gonzales even showed police the restraining order is also contested); that Mrs. Gonzales had, by her own admission, agreed to the Tuesday night dinner visit; and that Mr. Gonzales picked up the girls as agreed—it is very likely that they could have been sued by Mr. Gonzales for false arrest had they actually taken that step at any time that evening. Colorado law provides police immunity from suit when mistakenly making arrests for restraining order violations, but that state statute would not immunize them from a federal § 1983 action for deprivation of liberty without due process.

I’m not certain that I agree with Balkin that seeking government validation for religious symbols amounts to an attempt by those I have called values evangelicals to win a zero sum fight for social status against legal secularists. But assume for the moment that this is so. That would mean that the secularists’ attempt to keep those same symbols out of the public sphere is also an attempt to win a social status fight. Since Lemon, and indeed even a bit before, secularists have been on top, and Balkin says they will be loath to give ground now, when evangelicals are rising. But if this is a fight about social status, why in the world should the Constitution of the United States adjudicate it in favor of the secularists? If class wars must inevitably be fought, as Balkin implies, the place to fight them out is electoral politics, not the courts.

Unless, that is, you are a law professor, a secularist, and thus a member of an elite which has enormous social status and a disproportionate influence on just one branch of government, namely the judiciary. In essence, Balkin is implying that secularists will (and perhaps should) resist the temptation to give away the judicial veto that has enabled them to stay on top in the status wars. Notice that I never urged the government to go out and put up religious symbols; I just argued that the Constitution should not be read to prohibit them when democratic politics have generated such symbols. I don’t much care for wars in which one group tries to elevate itself over others; but I am a lot more troubled by one group claiming that egalitarianism just so happens to mandate the elevation of its own symbolic preferences. It is more than likely that some values evangelicals understand the judicial prohibition on religious symbols in just the terms that Balkin proposes. No wonder, then, that they think secularists are denigrating them and their faith.

In my own view, most secularists are nowhere near so cynical. Most, I think, sincerely feel that religious symbols exclude them, and oppose such symbols out of the (mistaken) belief that if they are eliminated, all Americans will feel included. Those secularists, I hope, will see from my argument that their wholly admirable goal of inclusion in fact is not satisfied by a ban on public religious symbols, because values evangelicals end up feeling excluded. And of course what is really at stake is not the symbols themselves, but what they stand for. The reason people on both sides get so riled up about religious symbolism is that it is a stand-in for the deeper question of whether religious values should or may determine political choices. Here, too, I want secularists to acknowledge that asking people of faith to keep their religious commitments out of public discourse is not a neutral or inclusive or “liberal” as that term was classically understood, but actually exclusionary.

Finally a quick reply to some of Balkin’s other thoughts. Fights over money really are zero-sum in the real world where you can’t just get more money out of thin air, but must raise taxes or cut somewhere else. That’s why the professional politicians – as well as the political scientists – generally think that if you want to know what’s really going on in politics, you should follow the money. As for solving the details of what counts as government funding or what kinds of activities performed by religious institutions should be denied funding, I entirely agree that much more detail would be needed to make out a full jurisprudence. That’s not what I’m doing in this article, though, or indeed in the book from which it is loosely excerpted. Instead I am trying to change the entire framework in which these admittedly difficult decisions will be made. In the book, Divided by God: America’s Church-State Problem – and What We Should Do About It, I offer a new interpretation of the history of church-state relation in the U.S., one focused on successive waves of newly developed religious diversity as the drivers of our ideas on religion and government. I hope readers of this posting will have a look at the full argument, and let me know what they think.

By contrast, the policy that Feldman wants to bar -- inclusion of religious schools or social services in funding programs – can reflect much better the choices of individuals and religious communities. A wide range of entities can participate in these programs under equal terms, reflecting a wide range of choices about religion. With voucher programs, the amount of funding is a direct function of the choices of individuals to attend a given school or receive help from a given charity. Indeed, funding is probably necessary to ensure that religious schools or charities can continue to thrive according to individuals’ choices, since government typically funds the competing public/secular entities.

2. Even if reducing division is the overriding goal, I question whether Feldman’s proposal will achieve it. He’s right that voucher programs create some disputes over whether some schools will be denied eligibility because of their unpopular or anti-social teachings or practices. But of course he himself proposes to exclude school because of their religious teaching: why shouldn’t this exclusion promote just as much resentment, or more since it’s so broad-brush? (As my Mirror of Justice colleague Rick Garnett points out, and as I’ve discussed here, the largest class of religious schools, Catholic schools, do quite well at producing civic virtue.) The exclusion of religious schools from funding has produced intense controversy for decades; what makes us think it wouldn’t do so in the future? Even more, excluding religious schools from funding intensifies cultural disputes by pushing everyone (except the wealthy) into a single set of institutions, the public schools: many more people then have an interest in insisting that the schools reflect their (inconsistent and incompatible) values. We will continue to face the endless emotional disputes over public-school prayers, Christmas prayers, sex education, and countless other issues. As Jack Balkin put it, disputes over the content of official statements in government settings are "zero sum"; someone must win and everyone else loses. By contrast, voucher-type programs allow families of varying views each to send their children to schools closer to their views.

Feldman’s answer is that secularists and religious minorities should accept more Christian elements in the public schools and the public square. But such a sacrifice is still bound to produce resentment among non-Christians; and voucher programs would make the sacrifice unnecessary because families who wanted serious Christian elements could go to (now more affordable) Christian schools. In addition, any amount of religion that Feldman would allow in public schools would (and probably should) be insufficient to satisfy those who want their children’s education to contain serious religious elements and not just the occasional watered-down prayer or plaque on the wall. (In fact, Feldman would still forbid any sort of “mandated” prayer, which, in the light of Supreme Court precedent such as Lee v. Weisman, would probably cover any sort of official prayer in a public K-12 school.)

3. In the modern state, therefore, preserving the goal of religious voluntarism that animated the founders calls for the opposite of Feldman's proposal: continued suspicion of official government religious pronouncements, but increased acceptance of including religious choices fully in programs of educational or social-service funding. Nevertheless, I want to emphasize that I think that Feldman's analysis is very thoughtful and deserves close study.

(I should finish by saying that I share and appreciate Feldman’s position that religious views should be fully welcome into public debate on law and policy. But I don’t lump that question together with question of official government pronouncements on religion, as he does. One can draw a distinction between government being influenced by religious values in deciding on matters of law or legislation within its competence for example, being influenced by Catholic pro-life views in eliminating the death penalty) and government making a separate and more general pronouncement of a religious nature (for example, posting the Ten Commandments as a statement about the religious foundations of law in general). Religious values may participate as equal partners in public debate, and thus may influence the debate, and thus in a democracy may influence public decisionmaking. That doesn’t establish those values in the sense of the government adopting them as its favored stance overall. Indeed, much of the purpose of disestablishing religion – removing it from a direct favored relation with government – was to enable it to influence government by influencing the values of the people who then influence the government through debate and voting.)

This is, of course, almost the opposite of the direction the Court has been taking in recent years. It also raises many, many difficult and interesting questions, some of which are pointedly but respectfully posed by Jack Balkin over on Balkinization. Feldman's proposal is also likely to receive a skeptical reaction from folks such as Tom Berg, who in our discussion here and at Mirror on Justice (see also Rick Garnett's new post here) have suggested that religious communities should focus less on the "symbolism" cases (in large part because Tom thinks there is great danger to religion when the state appropriates religious symbols) and more on securing the sort of neutrality in funding that is, for instance, suggested in Justice Thomas's plurality opinion in Mitchell v. Helms. (Current law is governed by Justice O'Connor's controlling concurrence in Mitchell, which prohibits the state from providing direct aid to be used for "specifically religious activities" and religious indoctrination, and which apparently also prohibits any direct monetary aid from being sent to a certain (undefined) category of religious institutions, because (in Justice O'Connor's cryptic words) "this form of aid falls precariously close to the original object of the Establishment Clause's prohibition.")

There is much, much more to be said in this debate. I hope that Noah, Jack, Tom, Rick and others will weigh in here or in the Comments on the main blog (where I'm cross-posting this), and/or on Balkinization and Mirror of Justice.

Let me first thank Tom and ScotusBlog.com for inviting me to participate in this online discussion. Along with others in my law firm McDermott Will & Emery, I had the honor of serving as pro bono counsel for a collection of law enforcement organizations in this case, and on behalf of those law enforcement groups filed an amicus brief in support of Ms. Gonzales.

Two points initially struck me as I read John Eastman's provocative initial posting. First, I was puzzled by John's description of the facts of the case, a description that has been amplified by the town in media interviews over the past few months. Second, I was intrigued by John's (accurate) statement that the Supreme Court interpreted the Colorado statute "against the backdrop of ... discretion." Because the Colorado Legislature enacted the mandatory enforcement statute precisely to eliminate that historical discretion, it is curious that the Gonzales Court would interpret the state statute following a guiding principle that enhances discretion. The unintended result leaves states with few legislative options.

I have tremendous respect for John, who is a fine advocate and who served his client well in this case. But in his initial posting here, as the town as done in its briefs to the Court, he has consistently mischaracterized the operative facts. He has argued that the Castle Rock police responded appropriately to Ms. Gonzales and worked hard to find her children. But in the procedural posture of this appeal, we are required to assume that Ms. Gonzales's rendition is true. It follows:

Judge Ryan, dissenting from the Sixth Circuit's ruling below, had "denied that the prior displays should have any bearing on the constitutionality of the current one: a 'history of unconstitutional displays can[not] be used as a sword to strike down an otherwise constitutional display." Justice Souter, however, insisted that "the world is not made brand new every morning. . . . [R]easonable observers have reasonable memories, and our precedents sensibly forbid an observer 'to turn a blind eye to the context in which [the] policy arose.'" He added, in a footnote, "[j]ust as Holmes's dog could tell the difference between being kicked and being stumbled over, it will matter to objective observers whether posting the Commandments follows on the heels of displays motivated by sectarianism, or whether it lacks a history demonstrating that purpose."

Now, Justice Souter emphasized that "we do not decide that the Counties' past actions forever taint any effort on their part to deal with the subject matter." Still, "an implauslbe claim that governmental purpose has changed should not carry the day in a court of law any more than in a head of common sense." Building on Marty's post asking about the prospects for future installations of Ten Commandments displays, I wonder what we can expect in terms of the development of a curing-nonsecular-purposes jurisprudence? More specifically, in practice, will -- in Justice Scalia's words -- a continuing "desire to display the Ten Commandments", in the face of court rulings that earlier displays are insufficiently neutral or fail to stay on the "acknowledgment" (rather than "endorsement") side of the line, preclude a conclusion that a later display has the required "secular purpose"?

When I was in practice, I worked for a while on the Kiryas Joel litigation. To (over)simplify, after the United States Supreme Court invalidated -- on Establishment Clause grounds -- the Kiryas Joel school district, the Legislature of New York tried again. Then, the new district was also invalidated by the New York Court of Appeals (although that court conceded that the "Legislature was perfectly within its authority in attempting to cure the constitutional infirmity of a prior law"). So, the Legislature tried a third time. And, in an opinion invaliding this third effort, the State's intermediate appeals court complained that "this case results from the third attempt of the Legislature of this state to ignore the rulings from Courts . . . and to impermissibly endorse the Satmar community of Kiryas Joel." (The New York Court of Appeals affirmed, 4-3).

Here's the question I'm getting at: When will / should government responses to judicial determinations that previous government actions violated the Establishment Clause be framed as "attempt[s] . . . to ignore" such determinations?

John Eastman begins the debate:

Castle Rock v. Gonzales, decided by the Supreme Court on Monday, June 27, presented the federal courts with a tragic set of facts. Simon Gonzales, an estranged husband and father of three little girls, took his daughters out for a mid-week dinner visit in June, 1999, as the standard-form restraining order that had been issued against him explicitly authorized. Tragically, before the night was out, he had shot and killed his three daughters and then committed “suicide by cop” by opening fire on the Castle Rock, Colorado police station.

The wrongdoer here was quite obviously Simon Gonzales, but the girls’ mother filed a $30 million federal lawsuit against the Town of Castle Rock and three individual police officers, claiming that the police violated her constitutional rights by not arresting Simon when she first alleged he had the girls in violation of a restraining order that told police to use every reasonable means to enforce it and that they “shall arrest or seek a warrant for an arrest” if they had probable cause to believe that the restraining order was being violated.

During oral argument in Castle Rock v. Gonzales, Justice Breyer asking Brian Reichel, attorney for Mrs. Gonzales, why he chose to ask the federal courts to invent a new constitutional entitlement to police enforcement of restraining orders rather than simply pursue the tort remedies that were available under Colorado state law. Mr. Reichel’s response was quite telling: Colorado law required that he prove causation and foreseeability—in other words, that the police department’s alleged inaction actually caused the harm to the Gonzales girls, and that the harm was foreseeable. Mr. Reichel implicitly conceded that he could not prove causation and foreseeability, so he sought to create a constitutional remedy for failure to act that would not put him to those pesky proof requirements.

On his "Religion Clause" blog, Professor Howard Friedman agrees with this assessment: "While characterizing the motivations of the Fraternal Order of Eagles and Cecil B. DeMille in their distribution of monuments in the 1950's may be difficult, it is not difficult to characterize the motivations of those posting the commandments in Kentucky courthouses. They were attempting to reclaim a Christian America. The scrambling to hide that motivation is something that only lawyers could ignore. The net effect of the rulings will be to prohibit new monuments today motivated by Christian evangelism, while keeping the bulldozers away from scores of courthouse lawns around the country."

This understanding of the precedential impact of yesterday's decisions is strongly confirmed, especially for lower courts dealing with the issue, by the Court's actions today in denying certiorari in two cases that Lyle discusses over on the main blog: one a ruling invalidating a state judge's use of a Ten Commandments poster in his courtroom, and the other a ruling forbidding a city council from convening its meetings with prayers referring to Jesus Christ. It is notable that the Court did not "GVR" these cases (i.e., grant the petitions, vacate the judgments and remand for reconsideration in light of van Orden and McCreary County) -- something that it ordinarily would have done if, in the Court's view, yesterday's decisions might have had any impact on the lower court judgments.

On the other hand, Professor Friedman concludes that "evangelicals are already misreading the opinions. The Washington Post reported that within hours of the decisions, the Christian Defense Coalition announced a campaign to erect monuments similar to the one in Texas in 100 cities across the country as a way to preserve the country's Christian heritage. And the Fort Wayne Journal Gazette reports a rush by Indiana legislators to place the Ten Commandments on Indiana's statehouse lawn." He doesn't think these efforts will meet with much success: "It is the motivation, not the location or form of the depiction, that is key to yesterday's holdings. Only willful blindness could lead to a different conclusion."

Thoughts?

If there is a universal human problem, then it is a matter of some urgency to identify this problem and its cure. Religion-in-general is the set of activities that seek to address this universal human problem. The goal that the state may permissibly pursue is to be defined at this level of abstraction. The state may coherently single out for special favor the enterprise of seeking this universal remedy.

There is a lot more to Koppelman's article and argument. I wonder, though, if his claim that promoting the good of "religion in general" is consistent with the secular-purpose requirement (a claim which, in his article, he contended was consistent with the relevant cases, correctly understood) can be squared with Justice Souter's opinion in McCreary? Justice Souter suggests (op. at 12), for example, that a purpose "to favor . . . adherence to religion generally" would be an impermissible one. Now, I imagine that Justice Souter is thinking and talking about "religion" on a lower level of generality or abstraction than is Professor Koppelman. Still, does Justice Souter's opinion leave room for government efforts to promote "religion in general", as Koppelman defines it?

A much more important issue is what the rules will be for the next generation of technologies. Here the Court did not offer the clarity we might have hoped for, opting instead for what Tim Wu has described as the Miss Manners rule, under which vendors must avoid showing an unseemly interest in infringing uses of their products. This would appear to protect vendors who are honestly uninterested in forstering infringement, as well as those who are very interested but manage to hide it.

Lower courts will be left to apply the Grokster Court's inducement rule to the facts of other file distribution technologies. How far will lower courts go? Will they go too far?

The litmus test is BitTorrent. Here is a technology that is widely used for both infringing and non-infringing purposes, with infringement probably predominating today. And yet: It was originally created to support noninfringing sharing (of concert recordings, with permission). Its creator, Bram Cohen, seems interested only in noninfringing uses, and has said all the right things about infringement -- so consistently that one can only conclude he is sincere. BitTorrent is nicely engineered, offering novel benefits to infringing and noninfringing users alike. It is available for free, so there is no infringement-based business model. In short, BitTorrent looks like a clear example of the kind of dual-use technology that ought to pass the Court's active inducement test.

A court that followed the Grokster analysis closely would have to let BitTorrent off the hook. To do otherwise, I think, would be to institute a de facto predominant-use test, finding BitTorrent liable because too many of its users infringed. This might be dressed up as an inducement analysis, but it would be clear to everybody what was going on. Given the squishiness of the Grokster analysis, we can't rule this out.

So the stage is set for the next phase of the copyright/technology litigation war. The music and movie industries don't want to live in a world where BitTorrent is allowed to exist. The Supreme Court didn't give them enough yesterday to kill BitTorrent. So the industries' goal will be to stretch the Grokster rule, just as they tried to stretch the Sony rule before hitting a sandbar in the Grokster district court. We'll see a careful campaign of litigation against peer-to-peer services, trying to gradually stretch the noose of inducement liability until it fits around BitTorrent's neck. Failing that, we'll see a push to get Congress to codify (the industries' interepretation of) the Grokster rule.

The real winners, as usual, are the copyright lawyers.

A variety of new digital technologies are advertised and promoted for uses that the technology vendors believe to be fair uses. For example, Time Trax promotes its technology for recording satellite radio, Mercora for recording music from webcasts, and Sling Media for transmitting your TiVo'd TV shows to yourself over the internet. All maintain that these personal, noncommercial, nontranformative uses of copyrighted works fall within the scope of fair use. No court, however, has ever weighed in on these (or virtually any other) personal digital fair uses.

If these innovators are wrong on the fair use score, however, are they all liable for inducement? To put it another way, the Supreme Court's Grokster ruling may put "fair use technology companies" in the position of having to litigate, and win, the fair use question on behalf of their customers in order to resist an inducement charge. That's an expensive burden to foist on these companies.

Notice that this is different from the situation that technology companies face when addressing contributory infringement claims. According to the Supreme Court in the Betamax case, it is enough if any use satisfies the "capable of substantial noninfringing uses" test (whatever that may mean).

So what happens if you are sued for inducement, and a court decides that your advertised use is not actually a fair use? Do statutory damages wipe out both the product and the company?

In other words, is it inducement if you reasonably, but incorrectly, believed that the use for which you promoted your product was covered by fair use (or any other copyright exception)? Hopefully the courts (or Congress) will find or fashion a safe harbor like this. But till then, like a Russian doll, a nested fair use case may be discovered in many an inducement case.

Instead, I think we have the Deep Throat theory of copyright infringement: "follow the money." Note that all of the evidence cited against Grokster in Justice Souter's opinion—and assumed as being unfavorable to the software and service providers in Justice Ginsburg's and Justice Breyer's concurring opinions—concerns the mundane old business model. One could have transported this fact pattern back to the eighteenth century and come up with much the same result, because the operative facts are technology-independent. My first crack at a behavioral rule that emerges from Grokster is:

Technological advances for personal use may fall inside a safe harbor (such as, but not limited to, Sony), but distributing such a technological advance in a way that results in widespread direct infringement by others will not—especially (but not only) if you're trying to make money by doing so.]]> http://www.scotusblog.com/discussion/archives/2005/06/one_last_point.html http://www.scotusblog.com/discussion/archives/2005/06/one_last_point.html Grokster Tue, 28 Jun 2005 10:15:58 -0500