It is the only document of its kind in the United States and did more to educate the public about Catholic abuse and cover up than all of the bishops’ statements on the issue combined.

Of course, Pope Francis did not mention the report this weekend and neither did Philadelphia Archbishop Charles Chaput, but it was not necessary, because the report has left its mark: It is impossible in Philadelphia for anyone to hear about clergy sex abuse and not know that the cover up was real and the pain deep.

An Early Tactical Error by Pope Francis

On his first day in the United States, the Pope made a large tactical error by congratulating American bishops for their “generous commitment to bring healing to victims . . . and to work to ensure that such crimes will never be repeated.”

For those of us in the trenches on child sex abuse, this was intolerable; no one has labored more mightily to block victims’ access to justice than the bishops. (Just ask the state legislators in New Jersey, New York, and Pennsylvania.) He sounded out of touch and as though he had drunk a large cup of the bishops’ Kool-Aid on these issues.

A Second Tactical Error, Meeting With Victims Only in Secret

The Vatican and some bishops dropped hints that Francis would be meeting with victims while in Philadelphia, but the survivor community had no inkling of who or when that would occur. Early on Sunday morning, before he delivered an address to the bishops at St. Charles Borremeo Seminary, apparently he did have such a meeting—in secret. At first, everyone assumed it was a meeting only with clergy survivors, but, no, we are told that it was a meeting with victims of parents, teachers, and clergy. No names were released. Indeed the silence is so deafening that many assume that they must have had to sign a non-disclosure agreement as a prerequisite to such a meeting.

This was a colossal error in my view, because victims, particularly in Philadelphia, need to be brought out of the dark and treated like the victims of crime they are. By meeting with them in secret, the Pope perpetuated the antiquated and wrongheaded way we used to deal with rape survivors. They need not whisper their suffering; rather, they deserve our acclamation and affirmation. They also deserve justice.

Imagine what Francis could have accomplished by sending out a call to all victims of child sex abuse and their families to join him in a large public gathering in the sunlight. He could have showered the victims with his loving attention, much the same way he does so naturally with the needy and the disabled. It would have set an extraordinary example for American bishops who have devoted so much time to alienating victims in court and the state legislatures.

Just think what survivors might have thought had they heard a Pope say the following to them in public:

For those who were abused by a member of the clergy, I am deeply sorry for the times when you or your family spoke out, to report the abuse, but you were not heard or believed. Please know that the Holy Father hears you and believes you. I deeply regret that some bishops failed in their responsibility to protect children. It is very disturbing to know that in some cases bishops even were abusers. I pledge to you that we will follow the path of truth wherever it may lead. Clergy and bishops will be held accountable when they abuse or fail to protect children.

Instead, these are part of prepared remarks issued by the Vatican after the secret meeting. They lose some of their force and sincerity after the fact.

Finally, Pope Francis, Moved by the Victims, Gets It Right When He Speaks Off the Cuff

The meeting clearly affected him, though, as he began his remarks to the bishops at the seminary by delivering clearly heartfelt reproof for the abuse of children by clergy (and anyone else). In addition to saying the oft-quoted, “God weeps,” he said that “the crimes and sin of sexual abuse of children can no longer remain secret” and that he “committed the close vigilance of the church to protect the children, and I promise that all responsible will be held accountable.” For those in the abuse community, whether abused, family or friend, or advocate, this charge of no more secrets was finally a moment of balm they deserved.

His spontaneous comments continued on the plane home when he “strongly condemned priests who molested children as ‘sacrilegious’ and publicly acknowledged that bishops had covered up abuse cases. ‘When a priest abuses, it is very grave because the vocation of the priest is to make that boy, that girl grow toward the love of God.’ Francis said. ‘For this reason, the church is strong on this, and one must not cover these things up. Those who covered this up are guilty. Even some bishops who covered this up.’”

More balm for the soul of victims!

Of course, on these issues, the devil is in the details.

From Secrecy to Sunlight for Survivors: Statute of Limitations Reform Now

The Philadelphia grand jury reports from 2005 and 2011 challenged all Philadelphians to think about the safety of children. A groundswell has grown in favor of learning the identities of the hidden predators, and it has become common knowledge that the only tried and true route to unveiling hidden predators is to eliminate and revive the child sex abuse statutes of limitations. Among other recommendations, the 2005 Grand Jury Report recommended that Pennsylvania enact a “window” that would revive expired statutes of limitations for child sex abuse.

Over the last ten years, that has not happened, because the Pennsylvania Catholic Conference—i.e., Pennsylvania bishops now led by Archbishop Chaput—have lobbied with hammer and tongs against victims’ access to justice. Indeed, the deepest irony of the Pope’s entire visit was that he met with family, teacher, and clergy victims, presumably to make the point to the public that there is abuse beyond their priests. Instead, it was a reminder that the bishops’ relentless, self-interested lobbying against victims’ access to justice has hurt incest and other victims, too.

Yet, Archbishop Chaput has now said: “We’ve gone out of our way to explore in the past in response to the grand juries,” he said. “I think the people responsible for the grand jury reports would acknowledge our response as being very positive and thorough. The fact that people want more – what is the more they want that we haven’t done?” He added: “We might fail sometimes. But in terms of sincerity and commitment, we are doing all that can reasonably be done.”

Actually, Chaput has been nothing but unreasonable in Harrisburg, hiring not just one but two lobbyists to keep the victims from justice. He also spent millions in Philadelphia “investigating” accused priests and controlling the public’s access to information about the pedophiles in their midst, all the while keeping victims and courts from revealing the full story.

It is now time for everyone else to be reasonable. If the bishops cannot bring themselves to back the victims’ rights to justice, it’s time legislators stake out the high ground. Since the Catholic cover-up story broke in 2002, they have done so in California, Connecticut, Delaware, Georgia, Hawaii, Massachusetts, and Minnesota, among many others.

Now is the time to follow, as Jesus said, “the way, the truth and the life” in order, in Pope Francis’s words, to “bring healing to victims . . . and . . . to ensure that such crimes will never be repeated.” What is the way? By reviving the civil SOLs, and eliminating the civil and criminal SOLs going forward.

Just What Exactly is a BorgataBabe?

According to the appellate court in Schiavo, Atlantic City was “changed forever” in 2003 by the opening of the Borgata, a “Las Vegas-style resort.” Among other differentiating features, the casino created a special group of costumed beverage servers called BorgataBabes, who were supposed to reflect the “fun, upscale, sensual international image that is consistent with the Borgata brand.”

A recruiting brochure spells out the image in more detail. The BorgataBabes are “beautiful,” “charming,” and “bringing drinks.” She “moves toward you like a movie star,” and her smile melts “the ice in your water.” Helpfully, when “you forget your own name,” she “kindly remembers it for you.” And you “relax in the knowledge that there are no calories in eye candy.”

More than 4000 people applied to be one of the first 200 BorgataBabes. Applicants who made it to the final round were interviewed and made to perform, in costume, mock customer scenarios. The court emphasizes that applicants were advised of the Personal Appearance Standards (PAS) to which they would have to adhere to get hired—and to stay employed. Women were to have a “natural hourglass shape,” while men were to have a natural “V” shape (broad shoulders and a slim waist). Women were to have naturally styled hair and “tasteful, professional makeup that complimented their facial features.” Men were to be clean shaven or have neatly trimmed and “sculpted” facial hair.

When the initial group was hired, they signed a contract providing that they would have to “maintain approximately the same physical appearance in the assigned costume” and “appear to be comfortable while wearing the assigned costume for which you were fitted.” For men, the costume consisted of a fitted black t-shirt and black pants. For women, the costume was, in the court’s description, “form fitting, skimpy, and reminiscent of a Las Vegas-themed casino.” (Searching #BorgataBabe will take you to many pictures on the Internet, showing the standard costume of a black bustier and miniskirt with high heels.) The costumes were designed by Zac Posen, who designed Emmy gowns this year for the likes of Amy Schumer, Sarah Hyland, and Tracee Ellis Ross.

A year after the casino opened, the PAS were modified to make the “maintain your appearance” requirement more objective. BorgataBabes were not permitted to gain or lose more than 7 percent of their baseline weight—roughly the amount of weight that would cause a change of one clothing size. There was no fixed schedule for weigh-ins; they occurred when a manager observed an “ill-fitting” costume, when a server returned from a leave of absence, and when a costume change was requested. According to company policy, a BorgataBabe who failed the weigh-in—whose weight had increased by more than 7 percent—would be given a period to bring his or her weight into compliance, with the assistance of company-funded weight-loss programs and gym memberships.

In 2008, one woman filed a complaint alleging that the PAS violated state anti-discrimination law, “as informed by Title VII.” Subsequently, several other complaints were filed, and the cases were all consolidated. All told, twenty-one women who had been subjected to the PAS—many suspended for excessive weight gain—were discriminatory in form and implementation. Women in that group had different outcomes—some brought their weight into compliance and retained their jobs; some requested transfers to a non-PAS position in anticipation of termination; some quit; and some were excused based on a medical condition affecting weight control.

The lawsuit raised the following complaints:

• the PAS were based on gender stereotypes;
• the weight-gain standard was not applied equally to men and women (e.g., men were not subjected to weigh-ins and could avoid requesting larger costumes by replacing the nondescript shirt and pants themselves);
• the policy had a disparate impact—no men were suspended for noncompliance, while over twenty women were;
• enforcement of the weight-gain policy was harassing and sexually suggestive (e.g., managers would snort like pigs when a woman suspected of excessive weight gain walked by or would ask if she “was pregnant or just getting fat”).

Is any of this, if proven, actionable?

A Long Path with Little Progress: The Law of Dress and Grooming Codes

Sex-specific dress and grooming codes have been challenged under Title VII, which bans all forms of sex discrimination by employers, since the mid-1970s. (These lawsuits often include claims under analogous state anti-discrimination laws.

Title VII prohibits employment actions “based on sex,” making no exception for specific types of discrimination or “de minimis” inequalities. Yet, there has been a longstanding anomaly in Title VII case law that permits employers to maintain sex-specific dress and grooming codes. In an early case, Willingham v. Macon Telegraph Publishing Company (1975), a federal appellate court upheld a rule requiring men (and only men) to have short hair, while women were permitted to wear theirs long. The court refused to acknowledge the stereotypes reflected in the rule, observing simply that hair length was not immutable, and men could comply with the rule simply enough by just getting a hair cut. (For a modern twist on this scenario in the educational context, read here.) In later cases, courts have ruled that employers can require men to wear business suits and ties, while requiring women to wear dresses. They have also allowed employers to impose requirements that women wear makeup, while prohibiting men from doing the same thing.

I describe these decisions as anomalous because they seem to permit precisely what Title VII forbids: treating employees differently on the basis of sex. And the reasoning courts offer is generally unconvincing, question-begging, and employs the very same stereotyping that led the employers to adopt the rule in the first place. Take the Willingham case, mentioned above. The court in that case stated that discrimination laws generally protect people based on immutable characteristics—on the theory that people should not be arbitrarily disadvantaged because of something they can’t change. And hair length, the court noted, is mutable, not immutable. But hair is not the alleged basis for discrimination, sex is. And sex cannot easily be changed.

Courts often resort to platitudes about “good business” and the latitude employers need to run things the way they see fit. But the thrust of anti-discrimination law is to override the decisions of employers that unfairly disadvantage certain groups of workers, regardless in most cases of the impact on business. We do not, for example, allow employers to hire only white workers even if customers prefer them; nor do we allow employers to fire older workers and replace them with younger ones based on the stereotype that they will be more energetic and efficient.

Other courts have had the gall to suggest that dress and grooming codes, though sex-specific, are actually gender neutral because men and women are both required to adhere to a dress code based on generally accepted community standards. That these standards are different and largely, if not exclusively, the product of sex stereotypes is ignored.

The one exception that emerged in more recent cases is that employers cannot impose an undue burden on one sex, but not the other. An employer thus cannot require women to wear uniforms, while allowing men to choose their own attire. But employers can force men and women to wear different uniforms, as long as they are deemed “comparable.”

The early dress and grooming code cases, which preceded the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, are less surprising. In that case, the Court held that sex stereotyping is a form of illegal sex discrimination. A logical extension of that ruling might be that sex-specific codes are invalid if they reflect, reinforce, or perpetuate gender stereotypes. And although some modern courts have used this analysis in dress and grooming cases brought by transgender individuals (challenging policies forcing them to align their dress with their anatomical sex), they have all but refused to do the same in cases brought by women. (Some of the transgender cases are discussed here and here.)

This oversight was nowhere more apparent than in Jespersen v. Harrah’s Operating Co., in which an en banc panel of the Ninth Circuit Court of Appeals upheld a grooming code that required female bartenders to wear teased hair, a full face of makeup, and painted fingernails, while requiring of male bartenders only that they have short hair and be clean. And while the court acknowledged the unequal burden test, it refused to take judicial notice of the fact that the dress code for women was time-consuming and expensive, while the dress code for men was quick and cheap. As Deborah Rhode has noted, however, even a “proper” application of the unequal burden test does not “capture all of what makes these regulations objectionable. Darlene Jespersen resisted Harrah’s makeup requirement not because it took more time and money for her to be presentable than her male counterparts, but because she felt that being “dolled up” was degrading and undermined her credibility with unruly customers. Dress codes that require women to wear skirts and high heels are problematic for similar reasons, regardless of what the codes demand of men.

The BorgataBabes case adds in an additional issue: grooming codes based on weight. Is discrimination law relevant to such rules? There is strong research showing that women are judged more harshly than men for exceeding conventional weight expectations. Weight discrimination results in a variety of adverse consequences, including disproportionately low pay. And because being overweight is more common for poor women and women of color, weight discrimination exacerbates discrimination based on race and class. But Title VII does not directly protect against weight discrimination, and neither do most state anti-discrimination laws. But when weight standards are set or applied unevenly, they can be challenged as sex discrimination.

For example, in Frank v. United Airlines, Inc., the Ninth Circuit Court of Appeals concluded that a policy that permitted men’s weight to vary more by height than women’s was invalid sex discrimination. But aligning weight ranges might be just the tip of the iceberg. Women tend to gain more weight as they get older than men and can have dramatic shifts in body weight and shape because of pregnancy. Thus even a neutral rule limiting weight gain can have a disparate impact on women.

The Ruling in Schiavo v. Marina District Development Company

At the trial level, all of the plaintiffs’ claims were dismissed on summary judgment. The presiding judge found that the PAS were “reasonable in light of casino industry standards and customer expectations,” and did not reflect discriminatory treatment of women.

On appeal, the court affirmed the dismissal of most of the claims, but reversed as to one. The plaintiffs are entitled, in the court’s view, to go to trial on the sex-based harassment claims. The court recited a long list of examples that might constitute illegal harassment based on gender, including: requiring a post-partum woman to weigh in more than once on the day she returned; punishment under the PAS even when proper medical documentation should have warranted an exception under the policy’s own terms; comments to the effect that women shouldn’t come back to work after having children because they are too fat; suggestion to one postpartum woman that she should pump out breast milk to make weight; accusing women of lying about being pregnant to avoid weigh-ins. The court correctly recognized that these instances support the claim that women were singled out for harassing conduct not based on weight alone, but on the interaction with gender and pregnancy. (It is somewhat shocking that the trial court, reviewing the same evidence, concluded that these claims did not even warrant further fact-finding before being dismissed.)

But the clear reasoning of the appellate opinion ends here. The court affirmed the grant of summary judgment to the employer on all other claims—that the PAS embodied gender stereotyping; that the weight standard was enforced in a discriminatory fashion; and that the PAS weight standard had a disparate impact on women. Let’s take the court’s analysis of each claim in turn.

With respect to the first theory of discrimination—a facial policy embodying gender stereotyping—the appellate court resorted to the familiar, if erroneous, reasoning that dress codes can be sex-specific and yet non-discriminatory. The court cited Price Waterhouse for the proposition that we are “beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group” and yet upheld the legality of a dress policy that required women to dress in skimpy, form-fitting outfits, while allowing men to wear a t-shirt and pants. Although the court purports to agree with the statement that customer preferences cannot justify “the use of stereotyping gender roles in employment positions,” it notes, in defense of the dolled-up female costume, that in the casino business the “costume may lend authenticity to the intended entertainment atmosphere.” And if it forces women to wear revealing, sexy clothing, but not the men, well so be it. The court actually admits that the “costume and physical fitness standards imposed what many would label an ‘archaic stereotype’ of male and female physiques,’” but finds no fault in it despite the ruling in Price Waterhouse.

And after reviewing a series of cases that also refuse to engage with the real issue—that dress codes like this are drowning in sex stereotypes—the court identified the following “general principle”:

When an employer’s ‘reasonable workplace appearance, grooming and dress standards’ comply with State or federal law prohibiting discrimination, even if they contain sex-specific language, the policies do not violate Title VII, and by extension, the [New Jersey analog.]”

So, in other words, a policy that complies with the law does not violate the law?

The court then also rejects the claim of disparate impact. Federal and state anti-discrimination laws prohibit neutral policies that have a disparate impact on one sex unless justified by business necessity. Given that no men were punished under the weight-gain policy, while many women were, this claim seems at least worthy of serious analysis. But the court is unimpressed and criticizes the plaintiffs for relying on “sheer numbers,” even though that is the crux of a disparate impact claim. (The court then confusingly concludes that “simple statistical disparities are insufficient to show the weight standard was facially discriminatory,” as if that damns the disparate impact claim.) The court never explains why it rejects the disparate impact claim. Is the sample size too small to generate statistically significant comparisons? Is the disparity between men and women too small to be significant? Was the disparate impact justified by business necessity? None of these questions is answered. Nor is the employer forced to explain why men were re-weighed so much less frequently than women. Instead, the court just concludes that there was no evidence of a disparate impact. The numbers, however, would seem to suggest otherwise.

Conclusion

This is a disappointing case, but not only because of the outcome. The disappointment is in the refusal of modern-day courts, against a backdrop of strong anti-discrimination laws and Supreme Court precedent, even to look more closely at dress and grooming policies that so obviously reflect and reinforce gender stereotypes. We aren’t supposed to be living in Archie Bunker’s world anymore—where “girls were girls and men were men”—and yet people are afraid of the alternative. Equal opportunity in employment means more than allowing women to work; it means respecting their competence and ability whether or not they live up to stereotype.

Is it constitutional for the legislature to allow state officials to bow out of participating in same-sex marriage when the couple seeking the license merely secures it from another? If the law would not carve out an exception, would the state improperly be creating a religious test for office, in violation of the First Amendment?

The cases in the lower courts have not considered such issues yet, but we can expect that they will. Right now, the cases involve primarily bakers and wedding photographers, who have tended to lose. These cases will percolate up to the High Court. It would help the Court if the lower courts spent a little more time discussing the prior case law and flushing out the issues.

Thus far, the lower courts have tended to be conclusory. An example is the recent Colorado appeals court in Craig v. Masterpiece Cakeshop. In July 2012, Craig and Mullins visited a bakery in Colorado, and told Jack Phillips, the owner, to design and create a cake to celebrate their same-sex wedding. Phillips told them them that he does not create wedding cakes for same-sex weddings because of his religious beliefs, but said he would be happy to make and sell them any other baked goods. He also objected because of his First Amendment rights.

The administrative law judge found, as a factual matter, that “Phillips believes that decorating cakes is a form of art, that he can honor God through his artistic talents, and that he would displease God by creating cakes for same-sex marriages.” This same judge then ruled that Phillips discriminated against the gay couple, in violation of a state law that forbade, in a place of public accommodation, discrimination on the basis of sexual orientation. A bakery, it turns out, is, like a hotel, a place of accommodation. The appeals court rejected all of Phillips’s arguments and ruled that he must bake the cake and thereby participate in the wedding.

No case is an island, because each decision is a precedent, affecting others. Courts explain their decision and their reasoning so that we know how far the legal principle extends. What does the Colorado precedent mean? In this case we know very little because the court spoke in platitudes.

The Colorado court acknowledged that designing, baking, and presenting the wedding cake has a speech element. “Masterpiece’s contentions involve claims of compelled expressive conduct.” Actions can be speech, like waving a flag. Quoting a U.S. Supreme Court case, the Colorado court said that when “speech” and “non-speech” are “combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms.” So, what is this important government interest?

It turns out that when Mr. Phillips refused to create the cake, Colorado, in its state constitution and its statutes did not allow same-sex marriages. Yes, Colorado itself discriminated against same-sex marriage while punishing those who disagreed with the state. Indeed, Colorado law made clear that it would not recognize a same-sex marriage even if the parties were validly married under the laws of another state. What does the Colorado court say about that? Nothing. How can the state interest be such an important governmental interest when Colorado itself discriminates? The court ignores that and says nothing.

Let us say a KKK member walks into a bakery and tells the baker to make a cake that says, “Black lives don’t matter.” Or, “God bless the Klan.” Can the state force the baker to design, bake, and deliver the multi-tiered cake to the cross burning and Klan gathering? Does the state have that constitutional power? What does the reasoning of the Colorado court say about that issue? Nothing.

In R.A.V. v. City of St. Paul (1992), the City of St. Paul charged R.A.V. (a juvenile) with violating a city ordinance prohibiting bias-motivated disorderly conduct. R.A.V. burned a cross on a black family’s lawn. The Court held that the ordinance, on its face, violated the First Amendment because it imposed special prohibitions on speakers who express views on certain disfavored subjects, “race, color, creed, religion or gender,” while not punishing displays containing abusive invective if they are not addressed to those topics. For example, under the law, one could hold up a sign saying, all “anti-Catholic bigots” are misbegotten, but not that all papists are because the former does not attack a religion while the latter does.

In the Colorado case, the statute allows the baker to discriminate and refuse to bake a cake for a variety of reasons—the baker doesn’t like the purchaser’s looks; the purchaser cuckolded the baker and the baker does not want to bake the celebratory cake; the purchaser ran over the baker’s dog a decade earlier; the purchaser is too old and wrinkled. Like the law in R.A.V., only certain categories are within Colorado’s prohibition.

The Colorado law does not apply to bakers who refuse to bake cakes that favor traditional marriage; it applies only to bakers who refuse to participate in same-sex marriage. An organization that opposes same-sex marriage found that a baker’s dozen (13 bakers) would refuse to bake a cake that says, “Gay Marriage Is Wrong.” This organization has posted the video on the web. This distinction the Colorado law makes between favored and unfavored speech looks a lot like the law that R.A.V. invalidated it drew distinctions between favored and unfavored speech. What does the Colorado court say about the application of R.A.V.? Nothing.

The Colorado court does understand that free speech affects this case: “We recognize that a wedding cake, in some circumstances, may convey a particularized message celebrating same-sex marriage and, in such cases, First Amendment speech protections may be implicated.” What does the court say about that? Only this: “However, we need not reach this issue.” The baker did not want to design any cake that celebrates same-sex marriage, and the gay couple would want a cake that celebrated their union. How can the court not reach the issue that is at the center of the cake?

The Colorado court did acknowledge Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993). That case involved the Santerias, a religious group that engages in ritual sacrifice of animals such as doves. The City of Hialeah enacted several ordinances to forbid this animal killing. Justice Kennedy, for the Court, invalidated them. To survive a free exercise challenge, the law must be neutral and of general applicability. For example, a state law that forbids all murder applies to a religion that believes in child sacrifice. The law in Church of the Lukumi Babalu Aye fails that test because, the Court explained, it was not neutral and not of general applicability: it allowed animal deaths for nonreligious reasons, such as fishing or extermination of rats in the home. There were no dissents.

The Colorado court did not explain how its law is a neutral law of general applicability when the law is not general in its applicability. It allows the baker to refuse to design, bake, and deliver the cake for many reasons, as long as sexual orientation is not one of them. For example, it allows the baker to refuse to bake a cake that supports traditional marriage. The Colorado law even allows discrimination on the basis of sex if that has some relationship to the services provided.

The Court asserted that the law is generally applicable because “it does not regulate only religiously motivated conduct.” But that was the case of the law in Babalu. It did not regulate only religion and it did not prohibit all killing, but it did prohibit “unnecessary killing” when “not for the primary purpose of food consumption.” What did the Colorado court say about that? Nothing.

Runyon v. McCrary (1976), another U.S. Supreme Court case, held that a federal law, 42 U.S.C. § 1981, forbids racial discrimination in making private contracts, but it took pains to say specifically that it was not interpreting that statute to apply to private schools “that practice racial exclusion on religious grounds.” The Court suggested that the statute could not apply to such conduct because of the Free Exercise Clause, which protects more than freedom of conscience; it protects “exercise” of religious beliefs. What does the Colorado court say about Runyon? Nothing.

In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), gay, lesbian, and bisexual descendants of Irish immigrants sought to march as a group in the St. Patrick’s Day parade. The parade’s organizers refused, and the state courts ruled that that this exclusion violated Massachusetts’s public accommodation law, which prohibits discrimination because of sexual orientation. Justice Souter, for a unanimous Court, ruled that requiring the defendants to alter the expressive content of their parade violated the First Amendment.

The Colorado court’s response is that it decided that the wedding participants would not think that the baker was making a statement attributed to him: “it is unlikely that the public would understand Masterpiece’s sale of wedding cakes to same-sex couples as endorsing a celebratory message about same-sex marriage.” If that were good enough to distinguish Hurley, the Supreme Court would have permitted the gay pride float if it posted a sign saying others do not share its views. Moreover, the parade in Hurley allowed floats communicating all types of messages, some contradictory to others and some communicating nothing. Hurley responded, “a private speaker does not forfeit constitutional protection simply by combining multifarious voices.”

Wooley v. Maynard (1977) is another free speech case. The Court ruled that the state cannot require motor vehicles to bear license plates embossed with the state motto, “Live Free or Die.” The owner of the vehicle defaced that motto because, apparently, he did not like the alternatives. No one would mistake a license plate for a bumper sticker. We all know that we place license plates on our cars simply because that is the law. What does the Colorado court say about Wooley? Nothing.

Ultimately, the Supreme Court may affirm the Colorado court or a similar decision. When it finally decides the issue, it would help if the lower courts spent a bit more time discussing and distinguishing the relevant cases.

Though this question gave Fiorina the opportunity to give back, to insult Trump’s appearance just as he had insulted hers, she chose instead to say, “You know, it’s interesting to me, Mr. Trump said that he heard Mr. Bush very clearly and what Mr. Bush said. I think women all over this country heard very clearly what Mr. Trump said.” Of everything that was said that evening, this response garnered what was perhaps the strongest audience applause, and I am guessing that much (though not all) of that applause came from women. In this column, I will explore why that reaction might have been as strong as it was.

One could immediately react to any implication of sexism by observing that Donald Trump has insulted the appearances not only of women but of men too. At one point during the debate, Rand Paul expressed concern about putting an immature man like Trump in charge of our nuclear weapons: “I think really there’s a sophomoric quality that is entertaining about Mr. Trump, but I am worried. I’m very concerned about him—having him in charge of the nuclear weapons, because I think his response, his—his visceral response to attack people on their appearance—short, tall, fat, ugly—my goodness, that happened in junior high. Are we not way above that? Would we not all be worried to have someone like that in charge of the nuclear arsenal?”

Trump’s response to Paul’s question was to say, “I never attacked him on his look, and believe me, there’s plenty of subject matter right there.” Among the many unusual qualities that Trump has brought to the contest this year is a juvenile tendency to attack opponents on the most superficial of grounds. But his insult to Fiorina was different and emblematic of a misogynistic attitude that women can immediately recognize, just as Fiorina suggested.

Donald Trump did not simply insult Fiorina’s looks (as he did Paul’s); he said that she could not be elected because the American people would not want to “vote for that” (emphasis added). If we examine this statement, then we can see that Trump was making an assertion about more than one woman’s appearance. He was presenting a point of view about his estimation of the worth and utility of women as a class.

Consider Trump’s question about Fiorina’s allegedly ugly face. He asked contemptuously, “Would anyone vote for that?” The presumptions in this question are (1) that the “anyone” in the scenario who is doing the voting is a man and the sort of man who, according to someone like Trump, would be looking at a woman’s face and necessarily judging its prettiness as a prerequisite for the office of President and presumably, for any other job she might wish to hold, and (2) that voting for a female candidate is synonymous with voting for that candidate’s facial appearance.

The fact that many women (not to mention men) might find Trump’s “face” (including his constant scowls and disgusted facial expressions) less than enchanting is, as far as Trump is concerned, not even worth mentioning, perhaps because female voters are invisible to him, and voting for a man for President has little to do with voting for that man’s facial attractiveness. Trump’s statement, then, is best understood if we imagine a (sexist) male walking into the voting booth as the paradigmatic voter and deciding whether he could tolerate electing a female face that did not erotically arouse him.

With women’s suffrage and men’s development of an appreciation of women as equals rather than as mere eye candy, a vote for an allegedly unattractive woman should be no more surprising than a vote for an unattractive man. Trump, however, is willing to disqualify a woman at the gate for lacking a sexually appealing face that might, for one, attract Trump’s next marriage proposal.

Facing Fiorina’s devastating response—that women fully understand the contempt in which Trump holds our entire class—Trump could only muster the following, quite telling response: “I think she’s got a beautiful face, and I think she’s a beautiful woman.” Fiorina, in fact, is a pretty woman, but Trump’s reaction said more about Trump than about her. It reiterated that (1) Trump considers himself emblematic of the sort of person who looks at and judges a female presidential candidate, (2) the judgment continues to be based upon physical attractiveness, and (3) since Fiorina is now, according to Trump, “a beautiful woman,” all should be forgiven.

The problem in his earlier comments, Trump apparently believed, was that he had erroneously (or imprudently) suggested that Fiorina was ugly. It was not that he was commenting at all on a woman’s appearance as a necessary qualification for her aspiration to be president. His cluelessness here was so profound that I found myself feeling sorry for him rather than angry. That Fiorina was not flattered by his “compliment” was a sign that she fully comprehended the content of his reprehensible behavior.

In thinking about Trump’s insults to Fiorina, it is useful to consider the implicit insult to women in general (and therefore to more than half of the electorate). To oversimplify (but only a little), women in Trump’s world exist to service men’s sexual needs. If they are attractive, then they are worth looking at, bedding, and marrying, if only for so long as they continue to be young and beautiful (after which they are not suitable wife or presidential material). This view goes hand in hand with the notion that women are on this earth to bear children for men (whether they want to or not) and then stay home and take care of those children while their men strut around and make money to keep their women in sexy clothing.

The people who count, in Trump’s world, whose wishes matter, and whose perspective defines whose looks matter and whether they measure up, are men. This is why someone with Trump’s appearance can so confidently and comfortably throw stones at Fiorina. He apparently did not expect to be called on his vile words and therefore had nothing intelligent to say when he was.

In the first Republican presidential debate, Megyn Kelly asked Trump about other instances of his degrading and insulting remarks about women:

“Mr. Trump, one of the things people love about you is you speak your mind and you don’t use a politician’s filter. However, that is not without its downsides, in particular, when it comes to women.

“You’ve called women you don’t like ‘fat pigs, dogs, slobs, and disgusting animals.’

“Your Twitter account…”

TRUMP: “Only Rosie O’Donnell.

KELLY: “No, it wasn’t.

Your Twitter account…”

TRUMP: “Thank you.”

KELLY: “For the record, it was well beyond Rosie O’Donnell.”

TRUMP: “Yes, I’m sure it was.”

KELLY: “Your Twitter account has several disparaging comments about women’s looks. You once told a contestant on Celebrity Apprentice it would be a pretty picture to see her on her knees. Does that sound to you like the temperament of a man we should elect as president, and how will you answer the charge from Hillary Clinton, who was likely to be the Democratic nominee, that you are part of the war on women?”

Megyn Kelly was effective and persistent in raising the issue of Trump’s attitude towards women, and his response, “only Rosie O’Donnell” implied that Rosie O’Donnell does not count as a woman worthy of protection from his misogyny. It seems that if a woman fails to serve Trump’s purposes by being attractive and compliant (and perhaps heterosexual too), then she can rightly expect to be the target of his insults.

Trump’s response to the accusation that he is feeding the vision of Republicans waging war on American women? “I think the big problem this country has is being politically correct.” He thereby trivialized women’s concerns and refused to engage with them or take them seriously. He then added, ominously, “And honestly Megyn, if you don’t like it, I’m sorry. I’ve been very nice to you, although I could probably maybe not be, based on the way you have treated me. But I wouldn’t do that.”

Shortly after the debate, we were treated to Trump’s version of “not being nice” to Megyn Kelly, when he said to CNN’s Don Lemon that Kelly’s questions were “ridiculous” and “off-base” and—famously now—that “[y]ou could see there was blood coming out of her eyes, [b]lood coming out of her wherever.” The implication here, that Kelly was menstruating and therefore behaving in an irrational and out of control fashion, was hard to miss, despite Trump’s later claims that he was talking about blood coming out of Kelly’s nose. It also seems that Donald Trump regards menstruating women as yet another class of useless females, along with those whose faces do not ignite his desire. Since Megyn Kelly is unquestionably beautiful and young (and therefore could not be insulted for her looks), Trump had to turn to her time of the month.

I take heart, though, in public reactions to Trump’s treatment of women. It was gratifying to hear Republicans criticizing Trump for his blatant sexism in suggesting that Kelly must have been having her period. Penny Young Nance, the CEO and president of the conservative group Concerned Women for America, said to CNN that Trump’s “tantrum was even more enlightening than his original remarks she [Kelly] questioned…. Does he have a problem with women? Three wives would suggest that yes, maybe there’s a problem. The good news is that Kelly is a mother of toddlers and knows how to deal with petulance and tantrums. Every presidential election since 1964 has been carried by women.” This last sentence could have been uttered by a card-carrying feminist.

Women (and hopefully men as well) clapped for Fiorina when she gave the most dignified and truthful response to a question during the debate. American women understand exactly what Donald Trump said, along with the exploitative and hateful attitude towards women that his statements revealed, and people are prepared to vote accordingly. That is good news indeed.

Two key parts of SB 1070 were undiminished by the Supreme Court’s 2012 ruling. One is the so-called “Show Me Your Papers” (SMYP) provision, which requires state law enforcement agents to make a “reasonable attempt . . . to determine the immigration status” of any person they lawfully detain “if reasonable suspicion exists [as to whether] the person is an alien and is unlawfully present in the United States.” The other is a pair of provisions comprising the “Day Laborer” portion of SB 1070. One provision makes it unlawful “for an occupant of a motor vehicle that is stopped on the street [in such a way as to impede traffic] to “attempt to hire or hire and pick up passengers for work at a different location.” And the companion provision makes it unlawful “for a person to enter a motor vehicle that is stopped on the street [in such a way as to impede traffic] . . . in order to be hired by the occupant of the vehicle and to be transported to work at a different location . . . .”

Both of these parts of SB 1070 were challenged as unconstitutional in Valle Del Sol v. Whiting, and three weeks ago federal District Court Judge Susan Bolton issued a ruling on both. As to the challenge to the “Show Me Your Papers” provision, she ruled against the challengers and for the State of Arizona on plaintiffs’ equal protection argument. And with respect to the attack on the Day Laborer provisions, Judge Bolton ruled in the plaintiffs’ favor, concluding that these provisions violate First Amendment guarantees of free speech.

In my view, the district court’s reasoning on both of these claims was confused and unpersuasive, and that the results probably should have been inverted—the equal protection challenge to the SMYP provision should have survived, and the First Amendment claim concerning the Day Laborer provisions should have been rejected.

Equal Protection Challenge to “Show Me Your Papers”

The plaintiffs alleged that this provision was motivated by a constitutionally impermissible purpose to harm ethnic minorities, including Latina(o)s. The judge rejected this claim, holding that even if there were strong evidence of anti-Latina(o) motive, the provision cannot be successfully challenged until the plaintiffs also demonstrate that “state law enforcement officials will enforce the law differently for Latinos” than others. The court’s reasoning was that the goal of the Equal Protection Clause is to ensure that similarly situated people are not treated differently, and that this goal isn’t implicated unless and until plaintiffs show that the enforcement of the law will be done differently for people of some races than others.

But the court misunderstood what is required in equal protection challenges where impermissible motive is alleged. In such cases, the Supreme Court has made clear in Washington v. Davis and elsewhere, so long as the statute will have an unequal, or disparate, effects across different racial groups, it can be successfully challenged if there is a showing of impermissible motive. That is true even if the law is applied by executive officials the same way to people of all races.

Consider a law that punishes use of one drug (Drug A) more harshly than use of another drug (Drug B). Assume that this differential punishment regime is adopted precisely because most of the people who use Drug A are racial minorities, and most of the people who use Drug B are white, and the legislature has the actual goal of imprisoning minorities as much as possible. In such an instance, even if the police arrest and seek to imprison all persons who use Drug A (and thus are enforcing the ban on Drug A in a way that treats Drug A-users of all races equally harshly), the fact that the high punishment for using Drug A was enacted to harm minorities, coupled with the fact that the effect of a “neutral” enforcement of the law will burden a higher percentage of minorities than non-minorities, renders the law unconstitutional.

The district court seemed not to apply this basic “disparate impact plus invidious motive” body of law, confusing the overall goal of the Equal Protection Clause (equal treatment) with the specific doctrinal elements the Supreme Court has identified as being sufficient to state a claim when invidious motive can be established. When a statute is improperly motivated and has a disparate effect (even if the statute is enforced neutrally—that is, without selective racial enforcement), the statute does in a very real sense treat similarly situated people differently, in that one group suffers harm because of an improper motive while another group equally deserving of punishment is spared the burden.

None of this is to say the plaintiffs’ challenge to the SMYP provisions of SB 1070 will or should succeed; almost all invidious motive claims founder at the point of adducing adequate proof of improper government purpose. Courts bend over backwards to avoid finding that legislatures have enacted facially neutral laws for racist reasons, and the proof of anti-Latina(o) motive behind SB 1070 may not be sufficient. But the district court was unconvincing in dismissing the claim on the ground that the effect of the law was not disparate enough—the fact that almost 70 percent of foreign-born Arizona residents are Latina(o) and over 90 percent of undocumented immigrants in the state are from Mexico, combined with the fact that only 30 percent of the state’s residents overall are Latina(o), mean that innocent Latina(o)s are much more likely than innocent non-Latina(o)s to be questioned about their immigration status.

The Day Laborer Provision and the First Amendment

As noted earlier, the district court ruled the other way—siding with the plaintiffs—on the First Amendment challenge to the Day Laborer provisions. Ironically, the problem with the court’s analysis (and embrace) of the First Amendment challenge is that the court essentially accepted a disparate impact analysis where the guiding Supreme Court doctrine seems not to be concerned with disparate impacts. The district court (and the Ninth Circuit too, for that matter, since this part of the case ping-ponged between the two courts over recent years and the district judge was taking her cue from a 2013 Ninth Circuit decision) ruled that the Day Laborer provisions violate the First Amendment because they discriminate against commercial speech—the solicitation of work and offers to hire—without adequate justification. Relying on a Supreme Court case called Central Hudson Gas & Electric v. Public Service Commission, the district court and Ninth Circuit required Arizona to justify the Day Laborer provisions by establishing that there weren’t other ways of coping with the traffic congestion caused by the hiring of day laborers from vehicles. In more doctrinal terms, the courts found the Day Laborer provisions to be inadequately “tailored” with respect to the state’s ostensible goal of orderly street traffic.

But all of this begs the question whether these parts of SB 1070 should be subject to a narrow tailoring requirement in the first place. Laws that single out speech because of its content are indeed subject to a meaningful level of judicial scrutiny, which requires some precision in the fit between the government’s means and ends. For example, in Central Hudson itself, the law in question prohibited the advertising of energy services by utilities. That law targeted certain speech—advertising—because of its content.

But, on their face, the Day Laborer provisions of SB 1070 don’t target any kind of speech; they target conduct—letting someone in your vehicle or getting into someone else’s vehicle for the purpose of creating a contract. Entering into a vehicle is conduct. And entering into a business relationship is also conduct, not speech, even though it may incidentally involve speech. For example, in a recent case involving whether law schools could be required to permit military recruiters on campus to interview job candidates, the Supreme Court unanimously rejected a First Amendment challenge, observing that permitting access of recruiters was conduct, not speech. So too here, the provisions of SB 1070 do not prohibit people in cars from talking on the phone or among existing passengers about the need to hire workers or the terms on which workers should be hired; the provisions simply prohibit the transaction, or attempted transaction, of business in stopped cars.

If a city were to pass a zoning law that prohibits anybody from selling, or attempting to sell, industrial products from their dwelling in a particular neighborhood, nobody would think the law should be subject to meaningful scrutiny on the ground that it, in effect, shuts down commercial speech incident to potential sales. Instead, we would ask only whether the law were minimally reasonable, and if it were, the fit between means and ends would not need to be super tight.

What about the fact that a law that prohibits hiring day laborers from vehicles has a disparate adverse impact on certain kinds of speech—speech between day laborers and potential employers concerning day-laborer employment? The short answer is that, unlike in equal protection cases, the Supreme Court has not generally allowed plaintiffs to inquire into possibly censorial motives behind laws that regulate conduct and mount serious First Amendment challenges (that is, those that require a tight fit between means and ends) based on these laws’ effects on speech; instead, ordinarily a law must target expressive activity on its face to implicate rigorous First Amendment scrutiny.

It is rather surprising that this speech-conduct distinction—which figures prominently in First Amendment case law—was hardly discussed by either the district court or the Ninth Circuit in the SB 1070 day laborer dispute. At one point the Ninth Circuit, in a cursory footnote, rejected the idea that SB 1070 targeted economic activity rather than speech, pointing out that the statute regulates not just hiring people but “attempt[ing]” to hire them as well, and that “attempts” to hire people take the form of negotiations—speech. Putting aside for the moment whether attempted hiring can be distinguished from actual hiring (which is clearly conduct), the Ninth Circuit never even acknowledged that one of the two provisions of SB 1070 it was calling into question—the provision that applied to the laborers rather than the employers—made no mention of attempted hires, but instead simply prohibited the entry into a stopped vehicle in order to be hired. And in any event, if laws regulating attempted economic activity were subject to meaningful scrutiny because such activity takes the form of expression, then many, many laws would be struck down. (It should be noted that actual hiring also takes the form of expression, and yet no one thinks that government can’t regulate hiring practices unless there is a tight fit between means and ends.)

At the end of the day, my sense is that the lower courts in these recent SB 1070 rulings misinterpreted basic Fourteenth and First Amendment doctrine. (I do note that if plaintiffs challenged the Day Laborer provisions based on equal protection, asserting that the Day Laborer part, like the SMYP provision, was intended to hurt Latina(o)s in particular, then that claim would be coherent—assuming that there were adequate proof of bad motive—since the effect of these Day Laborer provisions surely falls harder on Latina(o)s than on other racial groups in Arizona.)

Whether ultimately the Supreme Court will be asked—and choose—to review these SB 1070 disputes down the road I do not know. I do know that in many instances, the district courts and the courts of appeals are in practice the last, best chance to properly apply constitutional doctrine, and it’s somewhat concerning when doctrine gets applied seemingly without full understanding of all the issues involved.

The debate occurred the night before “Constitution Day,” a congressionally mandated day of reflection on the U.S. Constitution. Fittingly, many of the candidates discussed their views of how the Constitution bears on the issues of the day. Unfortunately, what they said about the Constitution ranged from the amusingly uninformed to the arrogantly hypocritical. I shall focus on the statements of six of the candidates.

Birthright Citizenship

Donald Trump began the constitutional foolishness by claiming that “the 14th Amendment says very, very clearly to a lot of great legal scholars—not television scholars, but legal scholars—that” children born in the United States to undocumented immigrants are not citizens. Trump added that “some of the greatest scholars” think that a president could strip people born in the U.S. to undocumented immigrants of their citizenship without even going through Congress.

As I explained in an earlier Verdict column, under the most natural reading of both the text of the Fourteenth Amendment and the leading case construing it—the 1898 ruling in United States v. Wong Kim Ark—the provision in fact does grant such persons birthright citizenship. It is true that Wong Kim Ark did not involve a person whose parents entered the country illegally, and that therefore a few scholars argue that such a case can be distinguished. But not even they think that the Fourteenth Amendment “very, very clearly” rules out birthright citizenship for the children of undocumented immigrants. Meanwhile, it is impossible to take seriously the claim of a reality television show personality to be able to distinguish between “television scholars” and “legal scholars.”

Buoyed by her vivid, albeit false, claims about Planned Parenthood, Carly Fiorina put in a strong performance after having been promoted from the junior varsity debate in August. Yet she also displayed constitutional ignorance. Fiorina called Trump on his anti-immigrant bluster but quickly proved that she knows as little about the Constitution’s Article V as Trump knows about its Fourteenth Amendment. Suggesting that it would likely take a constitutional amendment to abolish birthright citizenship for the children of undocumented immigrants—which is true—Fiorina then said that to ratify such an amendment would take a vote of “two thirds of the states”—which is false. In fact, although two thirds of the states can propose a constitutional convention, ratifying an amendment proposed by Congress—which is what Fiorina was discussing—requires approval by the legislatures of three-fourths of the states.

Perhaps Trump and Fiorina can be forgiven for their lack of familiarity with the Constitution. Neither has been to law school nor has held public office. They are both running for president based on the premise that success in business readily translates into effective political leadership. Even granting the somewhat dubious premise that Trump’s and Fiorina’s business careers were unqualified successes, the claim is hardly self-evident. Some people with business acumen have had success in elected office; former New York City Mayor Mike Bloomberg is an example.

But for all of Americans’ professed distaste for politicians, successful presidential candidates have almost invariably had substantial political experience. The only exceptions were war hero generals like George Washington, Ulysses Grant, and Dwight Eisenhower. Let us therefore turn to the elected politicians, beginning with Kentucky Senator Rand Paul.

Rand Paul’s Idiosyncratic Constitution

Although he was an ophthalmologist for most of his working adult life, since becoming a Senator in 2011, Paul has shown that he has a deep appreciation for the Constitution. Senator Paul’s criticism of the surveillance state is admirable, even refreshing. So is his deep skepticism of the tendency of both parties to use the U.S. military to try to solve complex foreign political problems.

Yet on at least two occasions during last week’s debate, Senator Paul asserted idiosyncratic views of the Constitution as though they were fact. At one point, he stated that enforcement of federal marijuana laws in a state (like Colorado) that has legalized marijuana would violate the Tenth Amendment, even though the Supreme Court quite clearly rejected that view ten years ago in Gonzales v. Raich.

Later, in his closing remarks, Senator Paul implicitly suggested that President Obama, and perhaps other presidents, had taken the country to war unconstitutionally because they did not obtain congressional approval. Under a Paul presidency, he said, “when we go to war, we go to war in a constitutional way, which means that we have to vote on it, that war is initiated by Congress, not by the president.”

It is not clear whom or what Paul meant to criticize by this remark. Congress did in fact approve both the Afghanistan and Iraq wars. It has not yet approved fighting ISIS in Syria or Iraq, but not for lack of a request by President Obama (who also claims that the post-9/11 authorization suffices in any event). Perhaps Senator Paul meant his remark as a criticism of President Obama’s failure to seek congressional approval for military action in Libya in 2011, which would be fair, but Paul appeared to be making a broader point—that a president needs something like a formal declaration of war by Congress to use virtually any amount of military force. Yet Congress has not formally declared war in over seventy years and nearly no serious scholar thinks that such a declaration is always necessary for the president to use military force.

In both of these examples, it appears that Senator Paul holds an idiosyncratic view of what the Constitution requires and that, as president, he would be prepared to act on such a view regardless of what the Supreme Court or the weight of other legal authority says on the matter. Even that may be a defensible position but one would have greater confidence in Senator Paul if he were to recognize the dangers that can flow from a president unilaterally deciding that the Constitution imposes greater constraints than nearly everyone else—including the Supreme Court—believes it imposes.

Still, if Senator Paul’s approach would elevate his own views of the Constitution over those of others, at least he would do so in domains in which the president has discretion. After all, the Obama Administration has already scaled back enforcement of the federal marijuana laws in states that permit medical or recreational marijuana. And there is certainly nothing in the Constitution to prevent a president from consulting with Congress about war-making to a greater extent than is strictly required.

The Arrogance of Bush, Cruz, and Especially Huckabee

Meanwhile, at last week’s debate, three other candidates expressed constitutional views that were dismissive of, and disrespectful towards, the views of others.

Answering a question about appointments to the Supreme Court, former Florida Governor Jeb Bush indicated that he would appoint proven conservatives, but he did not put it that way. Instead, he vowed to seek nominees “with a proven experienced record of respect for upholding the Constitution.” Has there ever in the history of the Union been a Supreme Court nominee with a proven record of disrespect for the Constitution? All presidents nominate judicial candidates who sincerely wish to uphold the Constitution. They disagree about what respect for the Constitution entails—which makes it disrespectful for a presidential candidate to claim that only conservatives seek to uphold the Constitution (as it would be equally disrespectful for a candidate to say that only liberals do).

If Bush’s disrespect for constitutional disagreement was subtle and general, Senator Ted Cruz’s was obvious and directed. With no evidence whatsoever, Cruz accused Chief Justice John Roberts of violating his oath of office in the two leading Affordable Care Act cases—NFIB v. Sebelius and King v. Burwell. In the former, the Chief Justice voted to sustain a key provision of the Act as a valid exercise of Congress’s power to tax; in the latter, he voted to permit the provision of subsidies for the purpose of purchasing health insurance on federally operated exchanges.

Why did Senator Cruz think that Chief Justice Roberts ignored the Constitution and the statute “for a political outcome” in these cases? Because Roberts is an “amazingly talented lawyer,” and therefore, Cruz reasons, Roberts must have read the Constitution and the statute exactly as Cruz reads them. Roberts could not possibly have come to different conclusions based on a good-faith disagreement about the law. No, Cruz is so assured that he is right that an amazingly talented lawyer like Roberts could only disagree with him if Roberts were ignoring the law and lying about his reasons.

The grand prize for constitutional arrogance at last week’s debate, however, must go to former Arkansas Governor Mike Huckabee, who compounded his patronizing unctuousness with hypocrisy—or perhaps more charitably, with incoherence.

Huckabee described the Supreme Court’s recognition of a constitutional right to same-sex marriage in Obergefell v. Hodges as coming “out of thin air.” The ruling was not merely mistaken, Huckabee contended, but wholly illegitimate, as it ignored a basic principle of “ninth-grade civics. The courts cannot legislate.”

Of course, the Justices in the Obergefell majority did not purport to legislate. They found that laws barring same-sex marriage violate both the longstanding principle that the Constitution protects a fundamental right to marry and the obligation to treat all persons—including gay and lesbian persons—equally. To say that the Court “legislated” is merely a disrespectful way of saying that Huckabee disagreed with the ruling.

If “judicial legislation” is an impolite charge, it is also a familiar one, and it may even connote a defensible approach to constitutional adjudication, one most famously articulated in the late nineteenth century by Harvard Law Professor James Bradley Thayer. According to Thayer, unless the Constitution speaks very clearly to a question, courts ought to leave the matter to be decided by politically accountable actors. Most charitably understood, Huckabee’s accusation that the same-sex marriage case amounted to judicial legislation can be seen as an endorsement of Thayerism.

Yet just minutes later, Huckabee himself advocated what—by Thayerist standards—can only be described as judicial legislation. He said that a President Huckabee would apply a “litmus test” in nominating Supreme Court Justices, screening out anyone who does not believe that “the unborn child is a human being” for constitutional purposes.

Some critics of Roe v. Wade attack the decision on Thayerist grounds. They say that the Constitution is silent on abortion and that therefore the issue is relegated to politics. In this view, state legislatures and Congress have the discretion to ban abortion, to permit it, or to regulate it.

But Huckabee’s criticism of Roe is far from Thayerist. During the August Republican Presidential debate, he made clear that he would read the Due Process and Equal Protection Clauses of the Fourteenth Amendment to ban abortion. Huckabee’s problem with Roe is not that it is judicial legislation but that it legislates what he regards as the wrong result. In light of his willingness to read his own religious conservative values into the grand generalities of the Constitution, Huckabee’s preaching about ninth-grade civics to more liberal Justices with somewhat different values rings hollow.

But let us be charitable to Huckabee. Perhaps he is not a conscious hypocrite. Perhaps he is merely confused about the Constitution and even about his own views of it. If so, that would hardly make him stand out in the current Republican presidential field.

There is a gathering consensus that the criminal justice system has gone horribly awry. For the past 45 years, we spent like a drunken sailor, throwing money at anything that promised to keep “us” safe from “them.” We thought we knew who “they” were, gave the police the power to round ‘em up, and prosecutors the tools to send ‘em away.

We filled the prisons, built more, and filled them again. We carved a hole out of entire communities, took fathers from their kids, and kids from their mothers. We militarized the police until armored vehicles were rolling down Main Street. We saddled people who passed through the criminal justice system with every burden we could imagine, which all but guaranteed they would be part of the system forever.

And what did it get us? Two million people in prison, more than any country on Earth. Another five million under custodial supervision. Millions of men and women who can’t vote, can’t get a job, can’t get a loan to start a business or go to college. And though crime rates have fallen sharply, the best evidence is that our punitive policies played little part in the decline.

Meanwhile, nearly half of all black men under the age of 23 have arrest records, as do forty percent of all white men of the same age. Animosity and mistrust between the police and the communities they serve have never been worse. One in 11 Americans over the age of 12 has a substance abuse problem, and drugs are cheaper and more plentiful than ever. Suddenly, we’re not so confident that we can reliably separate “us” from “them,” or that we should even try.

But is change really upon us? As is their wont, most politicians are long on posturing but short on particulars. Even worse, precious few political leaders are willing to tackle the really contentious problems in criminal justice, like policing and racial disparities. And most reforms that have taken place have been confined to easy fixes that divert or release a small fraction of the prison population, most of whom never should’ve been locked up in the first place.

Yet a different problem is far more serious, though it has received much less attention: No one has articulated an alternative vision for the American criminal justice system. Everyone can point to a host of ways the current system has led us astray. For some, the criminal justice system is too big and too expensive, and government has been given far too much power. For others, it is too cruel, and people are treated little better than animals. For still more, it is hopelessly biased against minorities and the poor, producing disparities that make the United States the shame of the Western world. Others have concluded it is given to hysteria and prone to error, which has helped create the largest prison population in the world.

But what is the alternative organizing philosophy of the criminal justice system? We know we don’t want to be here, but no one seems to know where we should be instead. Some people—principally those who focus on mass incarceration rather than the pathologies of the entire carceral state—have suggested that prison populations should be cut by a more or less arbitrary amount. #Cut50, for instance, describes itself as “a national bipartisan initiative” whose goal is “to safely and smartly reduce our incarcerated population by 50 percent over the next 10 years.”

That is certainly a laudable goal, but it is emphatically not an alternative organizing principle. On the contrary, it is, quite deliberately, precisely the same philosophy, only less so. It says, in other words, that the only problem with the current system is that it got too big. It does not provide us with another way to organize the system. It simply says, get smaller.

The failure to articulate an alternative organizing philosophy should not be judged too harshly. Most advocates suffer from the silo syndrome. Those who work to end solitary confinement don’t have time to think about the campaign to abolish capital punishment, and both of those groups can only look on in sympathy at the people working to reform urban policing or improve defense services. In addition, because the current vision is now in its fifth decade, nearly everyone working in the system has never seen anything else, and they find it difficult to imagine how it could be meaningfully different. The end result, however, is that transformation of the criminal justice system is still more of a slogan than a program.

In this and the following columns, I hope to present an alternative philosophy of criminal justice, explain its rationale, demonstrate its superiority to the current system, and describe the many changes that would ripple through the system if this philosophy were to be adopted—changes that not only achieve the reforms so widely sought but many others as well that would make the criminal justice system vastly better.

To begin this process, let me state here the elements of a legitimate criminal justice system. The system should be organized to achieve three distinct conditions:

1. people have a right to be treated with dignity and respect;

2. communities deserve to thrive;

3. the state has an obligation to be fair and just.

Though these conditions can be stated simply, they represent a radically different orientation from other framings that appear in discussions of American governance, which invariably propose interests that purport to balance against one another—liberty vs security, for instance, or community safety vs the constitutional rights of the accused—but in practice lead to demonization and division. By contrast, the conditions I propose do not balance against one another. They are separate and independent, and no criminal justice system can be considered legitimate unless each condition is fulfilled. People have rights; communities have interests; and the state has obligations. All matter, all are non-negotiable.

I will elaborate on each of these conditions at length in future columns, but here it is important to make a few observations. First, I recognize full well that in addition to rights, people have obligations, prominent among them the obligation not to victimize others. The failure to live up to that obligation is a major reason why we have, and why we need, a criminal justice system. I am not a criminal justice abolitionist, and accept that we will (and should) have police, prosecutors, and prisons.

But I am completely agnostic about the amount of criminal justice in society, as measured, for instance, by the number of people in prison or arrested. Instead, the conditions I propose focus our attention on a particular type of criminal justice—one in which people are treated with dignity and respect; communities are allowed to thrive; and the state is fair and just. As I will describe, the criminal justice system would shrink dramatically if we made fulfillment of these conditions the overarching goal of our system. But that shrinkage, along with many other changes, would be incidental to the more fundamental goal of organizing the system behind a new philosophy of criminal justice.

Second, and more provocatively, these conditions deliberately do not prioritize “public safety,” which has been the hallmark of the existing vision for nearly five decades. When framed as a freestanding goal, “public safety” became a license to kill the patient while treating his symptoms. Under the old vision, we have destroyed thousands of communities across the county, all in the name of keeping them “safe.” Instead, we must design a system that permits communities to thrive, for among many other desirable outcomes, a thriving community is safe.

Criminal justice reform is all the rage. But reform will be halting, unfocused, and incomplete if it is not informed by an alternative, transformative vision. It is time to bring that vision into focus.

Little new was raised at this second GOP debate; rather, the candidates overwhelmingly rehashed their tested talking points, which was safe since few Americans have previously heard these stump speeches. What remains most striking with this field of candidates is the fact that only a couple of them actually understand the office they are pursuing. For example, Jeb Bush has been close enough to the office with a father and brother holding it to appreciate what it is all about. Governor John Kasich, after eighteen years in Congress, has a pretty good idea. Those who have served as governor appreciate the role of a government executive, but being a governor is nothing like being President of the United States, particularly when they have no Washington experience. First term senators, like Ted Cruz, Marco Rubio, and Rand Paul, do not have a clue what really goes on at the other end of Pennsylvania Avenue, especially when the president is of the opposite party.

Not one of the GOP candidates is attempting to lead; rather, they all are dancing to the tune(s) they believe the GOP base wants to hear. But the contemporary GOP base, after years of irresponsible Republican leadership that has turned them off to all things relating to government, has lost contact with reality. Accordingly, the GOP base has made clear they do not want a candidate who is really qualified. To the contrary, as the polls leading up to this second debate showed, the party’s base favors the least qualified candidates.

As the Republican primary race has progressed, the Republican Party’s base–and these are the people who regularly participate in primary contests–has responded in poll after poll that they want a candidate with no real Washington experience. The New York Times recently reported, “More than 90 percent of [GOP] voters in the Register/Bloomberg poll… said they were unsatisfied or ‘mad as hell’ with government and politicians.” Accordingly, as this second GOP debate approached, Donald Trump and Ben Carson, both political novices and Washington outsiders, were leading in the GOP polls, along with Carly Fiorina, similarly with no true political or governmental experience, who is not atop the pack but steadily gaining ground.

The fact that the GOP base is attracted to the least qualified candidates is stunning, although not surprising. Any former or current high-level Washington insider will (and should) tell you this is a road to disaster. In varying degrees, lack of true executive government experience hobbled the presidencies of Jimmy Carter, Ronald Reagan, Bill Clinton, and Barack Obama. To the contrary, Franklin Roosevelt, Harry Truman, Dwight Eisenhower, John Kennedy, Lyndon Johnson, Richard Nixon, Gerald Ford, George H.W. Bush, and George W. Bush understood how to get their hands on the levers of power available to a president from their first days in office–and they did so. In fact, our truly great presidents–George Washington and Abraham Lincoln–understood our highest office before they assumed it, albeit at a time when the office was far less demanding than today.

To make this point, it is only necessary to look at our last two presidents who learned how to be president on the job–Clinton and Obama. This is not a criticism, rather a statement of reality. Although Bill Clinton had worked briefly on Capitol Hill as a college student, that is not the same as experiencing high office. Obama was still a freshman senator when he ran and won, barely understanding the workings of Washington when he arrived at the White House. Neither were ready to be president. Fortunately, both were fast learners. But both presidencies would have accomplished much more had there not been a several year learning period. Both were lucky our enemies do not fully appreciate the nation’s vulnerability with a cub president.

Remarkably, the Republican base at this stage of the primary process favors candidates who know absolutely nothing about being president: Donald Trump and Ben Carson. Both men clearly have struck a chord that appeals to the GOP base. Apparently, Trump’s bullying obnoxiousness, his immigration-based xenophobia, along with an authoritarian personality (which I discussed previously), appeal to many Republicans. Ben Carson’s hard rightwing pronouncements, delivered with his soft voice and the bedside manner of a former pediatric neurosurgeon, appeal to other Republicans not inclined toward Trump’s blunderbuss. What these men have in common, however, is a total absence of understanding of the office they are pursuing.

Trump all but conceded in the second debate that if he won he would bone up on the job, particularly in national security, and hire people who know what they were doing. But that will work about as well for a future president as it would for a future neurosurgeon who read a few books and got a few advisers before he attempted to separate conjoined twins–as Ben Carson has done. Carson, on the other hand, gives the impression that he does not really believe he is going to wake up on January 21, 2017 in the White House; rather, he is having a lot of fun, as a former life-long Democrat, spreading his recently discovered gospel of conservatism. It is evident from Carson’s two debates that he does not have any idea about what a president can and cannot do, nor does he appear to have given it much thought. In short, at this stage of the primary process, the Republicans favor two of the least qualified potential candidates in modern history for the presidency, and after this last debate, they may make it a trio if Fiorina advances in the polls.

No one can really be surprised at this anti-Washington, anti-qualified politician posture of the GOP base. After all, Republican leaders have been playing their base, as well as other Americans, for fools for several decades. Republican leaders have been pushing anti-government rhetoric for decades. The effort to diminish–or better yet, destroy–federal power began in earnest when Newt Gingrich was a back-bencher in the late 1970s, throwing grenades in the House of Representatives. His total irresponsibility in gaming the system attracted attention, and soon he was the leader of the House Republicans, and Speaker of the House by 1995. He never stopped pushing the envelope, down to his forcing an impeachment of President Bill Clinton over his affair with Monica Lewinsky, while Gingrich was deeply involved in his own marriage destroying affair. Other GOP leaders have picked up where Gingrich left off as his own bad behavior made him irrelevant on the national stage.

Nonetheless, Gingrich’s politics of irresponsibility, from shutting down the government to encouraging baseless (but expensive) investigations of the executive branch in pursuit of nonexistent scandals to oust Clinton from office, found a receptive and permanent place in Republican thinking, as an endless array of willing co-conspirators joined the anti-government, anti-Washington cause.

I have been writing about these reckless ploys to game the democratic system for years. See, for example, “The Tea Party” (July 29, 2011), where I noted: “The movement seeks to disrupt the processes, by gaming the system, in order to de-legitimatize government”; “Gaming American Democracy” (September 23, 2011) , (October 7, 2011) and (July 13, 2012); “Impeachment Insanity Has Consequences” (April 4, 2014); and “The GOP’s Coming Confirmation Extortion Games” (December 2, 2014). See also, Broken Government: How Republican Rule Destroyed the Legislative, Executive, and Judicial Branches. Any honest Washington journalist could (and more should) tell you that it is the Republicans who have paralyzed government operations, exacerbated partisan differences into a dysfunctional government, and refused to compromise to the point where they cannot agree on anything.

The “know nothing” candidacies of Donald Trump and Ben Carson, and the talking points-rehearsed candidacy of Carly Fiorina, are the culmination of prior GOP leaders belittling the federal government, Washington, and most recently the relentless attack on President Barack Obama–discrediting the very legitimacy of his presidency with the so-called “birther movement,” which has been led by Donald Trump. The fact that it is unlikely Trump could pass a U.S. Civil Service examination, that he would even be able to drive himself from the White House to the State Department to the offices of the Food and Drug Administration, and that he believes he can simply hire the right people to handle the job, is terrifying. Prior experience in Washington makes a big difference in how a person performs as president.

It was former Arkansas Governor Mike Huckabee who made one of the most profound remarks during the second GOP debate. Huckabee said, “The next president is primarily elected not just to know things, but to know what to do with the things that he knows. And the most dangerous person in any room is the person who doesn’t know what he doesn’t know.” I have little doubt that Dr. Ben Carson knows what he does not know. Similarly, I am confident Carly Fiorina knows she is not ready to be president, for it seems clear that she is running to be someone’s vice president so she can learn. But Donald Trump is dangerous, and I am confident he does not know what he doesn’t know, for he has succeeded in life on chutzpah–a quality that does not work in the Oval Office.

Only time will tell if this second debate has revealed the true shallowness of the leading GOP candidates for president to the party’s base, and the potential consequences that could have for not only the GOP but the nation. Thankfully, the Democrats seem to understand the danger of know-nothing candidates, and all their prospects are deeply knowledgeable about the presidency, particularly Hillary Clinton and, should he run, Joe Biden.

It is the time of year when Jews observe a series of important religious holidays beginning with Rosh Hashanah and Yom Kippur. I submit this column as a subject to be pondered in the midst of celebration and reflection.

As with the FLDS, the ultra-Orthodox communities have put children at risk due to inadequate medical treatment, educational neglect, and mostly undeterred child sex abuse. In an interesting twist, the gender most severely affected in this community is male. Boys are at risk of herpes infection from metzitzah b’peh, or MBP and boys are less educated than girls because their education is focused on the Torah rather than secular subjects. Both, however, are at risk of sexual abuse. As in every community, that risk is significantly higher for the girls than the boys. Therefore, boys and girls in this community need prompt attention from the authorities, and politicians pandering for bloc votes need a conscience check.

MBP Rule Repeal: Leaving Mohels to Use Oral Suction Following Circumcision

Last year, I wrote here about the risk posed to male infants in the ultra-Orthodox Jewish community who are subjected to the religious practice of MBP: the practice of following circumcision by a mohel with the mohel engaging in oral suction on the wound. The practice creates a foreseeable risk that the infant will contract herpes, which at such a tender age can be deadly or cause permanent disability. At the time, the New York Health Department had issued the weakest of prevention strategies by requiring mohels to produce an informed consent form to the parents as a prerequisite to doing the procedure. It was a typical political grandstand by which Mayor Bloomberg and his Health Department were saying they intended to protect these children at risk while they created an unenforceable and toothless policy they knew the community would ignore.

In fact, some in the community did pay attention and filed a lawsuit alleging a violation of religious liberty. The Second Circuit mistakenly agreed in Central Rabbinical Congress v. New York City Dept of Health & Mental Hygiene, because the policy was specific to one faith. So the Department went back to the drawing board for the protection of this voting bloc and not infants, and simply repealed the MBP informed consent rule.

There is no reason to expect the Health Department to do anything else for these at-risk infants. They have sailed to the bottom of the slippery slope of unaccountability. Therefore, prevention seems out of the question.

The only hope for these children is if doctors report such infections in young infants recently circumcised to the authorities and then the authorities choose to investigate and prosecute when a child dies or is permanently disabled. Former Brooklyn D.A. Charles Hynes made noise about such an investigation but he never pursued it, which brings his treatment of this issue into line with his studious refusal to prosecute child sex abuse perpetrators in the community. The other possibility is a serious public information campaign, but that is hampered by the next problem.

Educational Neglect: Failure to Teach English and Other Secular Subjects

The reporter who deserves a Pulitzer Prize for uncovering risks to children in the ultra-Orthodox communities, Hella Winston, recently released her in-depth reportage on the failure of the ultra-Orthodox to educate their children in secular subjects, including English. She tells the story of boys who can’t speak English, do simple math, or know any history or science, because they spend the vast majority of their school day studying Torah, or religious texts, instead of even the basics in secular subjects.

The result is that children are deeply disabled from being able to function in the larger community, and have virtually no chance of ever making their own decisions regarding faith or community.

The failure of most New York and New Jersey officials to ensure that these children are educated is attributable in part to the wrongheaded free exercise decision at the US Supreme Court, Wisconsin v. Yoder. As I have discussed in God vs. the Gavel: The Perils of Extreme Religious Liberty and elsewhere, this is the only decision in which the Supreme Court applied strict scrutiny to a neutral and generally applicable law (Wisconsin’s compulsory education law).

The result is that the Supreme Court cleared the Amish to take their children out of school after eighth grade and to move them into an agrarian life. The decision is based on unrealistic and foolish assumptions about the unfailing goodness of the Amish (which is not to criticize the Amish per se but rather to point out they are human). Unfortunately, all religious parents gained a toehold on refusals to adequately educate and a route to incapacitating their children. Children in these communities are virtually walled off from the outside world, and the ones who do choose to leave suffer dearly for their lack of education.

Yoder, however, does not stand for the proposition that children have no rights. Prince v. Massachusetts before it stated baldly that parents may not make “martyrs” of their children. Elected officials have an obligation to ensure that they do not.

Much of the educational neglect in this community has occurred with federal, state, and local officials fully aware of what is happening. Finally, New York City is looking into the issue. For the sake of the children and our future as a society, may New York do significantly more for these children than it has on the MBP issue.

Sex Abuse: Weak District Attorneys Put Children at Risk

Brooklyn District Attorney Charles Hynes was widely criticized for his failure to prosecute child sex abusers in the ultra-Orthodox communities for political reasons. It was a primary reason he lost to Kenneth Thompson, the current Brooklyn D.A. Last month, 107 rabbis signed a public statement agreeing to report child sex abuse directly to the authorities, with a number from the community, but the list is missing the heavy-hitter leaders in this world.

Agudath Israel, however, is notably silent on the issue. The community also has engaged in extreme practices to persuade those that do come forward to be quiet as I discuss here. Thompson has cut some sweetheart deals with defendants from the community that led many who had championed his cause to wonder if he will make a difference for the children being sexually abused in the faith, for good reason.

For example, witness-tampering is usually deeply disfavored by prosecutors, and Thompson did initiate an investigation into it in the Lebovits sex abuse trial in April 2015. Yet, the investigation was closed without prosecution. The victims of child sex abuse in this community desperately need a champion in law enforcement.

When a faith community follows a path that endangers children, those children have few if any defenses. Only other adults can help them. When their faith-filled parents can or will not protect them, in the United States they become the responsibility of the government and elected officials. When the government and vote-pandering politicians turn the other way, these children suffer.

The time has come to rip off the rose-colored glasses and to treat children in every setting as humans with rights—even if religion is in the picture. Their suffering and disabilities are our problem.

Types of Abortion Regulations

Legislation regulating abortion falls largely into four categories: First, there are laws that are general in their scope in that they require anyone seeking an abortion of any sort to overcome obstacles, including a waiting period, an “informed consent” session, or a trip to a far-away hospital because small clinics lack the mandatory attributes of a place that performs abortions. I speak of these obstacles as general because they do not target particular women, particular pregnancies, or particular motivations for terminating.

Second are laws that target women based on their specific characteristics, such as being under the age of 18. Women in this category might be required to notify parents, obtain parental consent, or appear before a judge to prove their maturity and fitness to make a decision about whether to bear a child.

The U.S. Supreme Court has approved various incarnations of these first two types of regulation, in the form of waiting periods, for example (as in Planned Parenthood v. Casey), as well as parental notification and consent for minors, provided exceptions for mature minors and for the life and health of the minor mother.

A third type of limit on abortion concerns the timing of the procedure relative to the age of the developing fetus. The first major abortion decision from the U.S. Supreme Court, Roe v. Wade, divided pregnancy into three trimesters, the first of which would not be subject to any regulation, the second of which could be regulated for the wellbeing of the pregnant woman, and roughly the third of which (occurring after the fetus becomes viable—able to survive outside the womb) would be subject to prohibition, provided exceptions for the life and health of the mother.

Casey discarded the trimester framework but held onto viability as the dividing line between a right to abortion that may not be unduly burdened and an option by the government to prohibit all but life-and-health-necessitated abortions. Timing-related abortion regulations typically have as their premise the idea that abortions become increasingly problematic, from an ethical perspective, as fetal development progresses, with the State holding a correspondingly greater and greater interest in protecting the potential life over time. Prohibitions against later-term abortions (and arguably, those against so-called “partial-birth” abortions, upheld by the Supreme Court in Gonzales v. Carhart) fall into the third category.

A fourth and final type of regulation targets a woman’s reasons for wanting to terminate her pregnancy. One of the abortion regulations in the Pennsylvania law challenged in Casey was a prohibition against terminating a pregnancy on the basis of the sex of the embryo or fetus. Planned Parenthood of Southeastern Pennsylvania, the petitioner in Casey, chose not to challenge the prohibition against sex-selection abortion, so we do not have a specific answer from the Supreme Court regarding the validity of this sort of prohibition.

Despite the Court’s silence, a prohibition of sex-selection abortions does two things that, based on prior precedents, might appear fatal to the legislation: it prohibits the procedure altogether for those women who want to terminate for that reason, and it prohibits the procedure no matter when in pregnancy it is to take place. The legislation therefore appears to unduly burden the constitutional rights of such women to have an abortion, and it does so long before fetal viability. Yet the notion of a sex-selection abortion may be so repugnant to the Supreme Court as to trump these features of the law, a prospect that might have deterred Planned Parenthood from challenging that portion of the statute in Casey.

Targeted Abortions

Though I ultimately believe that women should have unfettered access to safe and legal abortions, I can understand why targeted terminations would strike many as problematic. In my estimation, the right to abortion in its essence amounts to a right to bodily integrity rather than a right to kill an unwanted embryo or fetus. This is what distinguishes the position of the mother from that of the father of the pregnancy (the latter of whom has no right to terminate)—the mother is not seeking simply to end the life of an embryo or fetus but is seeking to end the internal occupation of her body by a foreign body. This foreign body causes pain, discomfort, and risk through its appropriation of the woman’s circulatory and other systems to serve its needs, much like a parasite (albeit one that many women welcome). When a woman decides to terminate a pregnancy because of what she has learned about the status of the fetus (e.g., that it is female or that it will have Down syndrome), however, the primary motivation is plainly to kill the specific fetus with the undesired characteristic, rather than just to regain her bodily integrity.

As I have explained elsewhere, though, the imposition of pregnancy on a woman’s bodily integrity still provides a sound basis for the right to terminate her pregnancy, even if the woman’s reasons are related to the characteristics of the fetus rather than to the burdens of pregnancy on her body. Once the woman learns of the status of her fetus and no longer wants to take the pregnancy to term, a decision to force her to do so constitutes a colonization of her body and a denial of her bodily integrity by the government. By an analogy described in my forthcoming book, co-authored with fellow columnist Michael C. Dorf, a woman who refuses sexual consent to an interested party solely because of the party’s race may be relying on an offensive criterion, but she still retains an absolute right to have her refusal to consent respected. Intrusions upon bodily integrity, in other words, cannot be justified just because the person is asserting her bodily integrity interest in a targeted fashion that we find offensive.

At the same time, people understandably find troubling the decision to terminate a pregnancy on the basis of sex. It is, in a phrase, sex discrimination of a lethal form. If the fetus were born already as a baby and someone were to kill the baby because she was female, then we would call the act a hate crime (in addition to its being classified as a homicide). The same would be true if someone killed a born individual with Down syndrome because of his having Down syndrome. We would call this act a hate crime and perhaps punish it more severely than we would a “regular” murder committed without regard to the disability status of the victim.

Our law routinely and legitimately takes discriminatory motives into account, whether in identifying illegal hiring or housing practices or in enhancing the penalties for a criminal offense. A prohibition against sex-selection or Down-syndrome-selection abortion thus fits within a tradition of laws that bar acts of hostility or violence that target a particularly vulnerable, despised, or minority population. And born members of the two groups, respectively, might feel grateful for a law that implicitly expresses their value as full members of the community, saying in essence that “the fact that your baby will be a girl/a person with Down syndrome is not a good reason to kill her or him.”

One Hidden Cost of Down Syndrome Abortion

In addition to mirroring the structure of anti-discrimination and hate-crime sentencing enhancement laws and thereby also avoiding an expressive harm to members of the protected classes, the Ohio bill that would prohibit abortion on the basis of Down syndrome might be responsive to another phenomenon as well. Sometimes, when we have the option of doing something, that option can become a mandate. In the case of abortion for Down syndrome, I have a personal experience to share.

When I learned that I was pregnant with my younger child, I was already quite far along in the pregnancy. I went to the doctor to confirm that I was pregnant, and she proceeded to use a Doppler to play me a heartbeat and to send me to a radiologist who was able to tell me, through an ultrasound, that I was pregnant with a girl. I was very excited, but my doctor warned me that I should make an appointment with an obstetrician and arrange for an amniocentesis (an “amnio”) as soon as possible, because I was over 35 years old.

The way in which my doctor brought up an amnio made it clear to me and my husband that I was expected to undergo this procedure, which lets a pregnant patient know whether she is carrying a fetus with a chromosomal anomaly, including the one responsible for causing Down syndrome (a far more common occurrence in women past the age of 35 than in younger women). When I went to an obstetrician, he too urged me in no uncertain terms to get an amnio as soon as possible. I brought up the worry that an amnio could cause a miscarriage, but he informed me sternly that at my age, the odds of Down syndrome were sufficiently high that I really needed an amnio. Though my husband and I are generally assertive people, we felt that we had no option but to have the amnio, and we think we probably would have felt tremendous pressure to terminate, if the amnio had turned up the presence of Down syndrome.

I spoke about this phenomenon—of a choice becoming a mandate—in another column about physician-assisted suicide and abortion. I conclude from this phenomenon that it is crucial to ensure that doctors and others consciously avoid pressuring patients into making a choice that they have every right not to make. Others, however, conclude that people should not have the choice at all, because the slope from choice to mandate is too slippery. That is why Professor Yale Kamisar has opposed a right to physician-assisted suicide.

Concluding That the Law Is Wrong

Despite the various arguments in favor of the Ohio bill, including the anti-discrimination norm and the concern about a choice becoming a mandate, I nonetheless oppose the bill to prohibit motive-based abortion. As I explained earlier, I believe that a woman’s right to reject assaults on her bodily integrity must include the right to make a decision on a basis that some of us (or even most of us) consider offensive. Once a woman has information that makes her want to stop being pregnant, she has a powerful interest in terminating her pregnancy. Until she is able to do that without actually killing the fetus (something that may become possible with artificial wombs), the death of her fetus is an unavoidable consequence of exercising that right, which we hold sacred in our society, even when its exercise means that others will die. Blood drives remain optional, despite the trivial bodily sacrifice involved for most people in donating a pint and the grave need for a transfusion of patients experiencing blood loss.

Perhaps even more importantly, I believe that until an embryo or fetus is capable of having feelings, of suffering pain or of feeling pleasure, it remains a potential person. This means that the overwhelming majority of abortions that women have occur before there can be said to be “someone” there “who” is aborted. There is instead “something” that, if allowed to keep growing, could later become “someone.” For this reason, I do not regard the termination of a pre-sentience pregnancy—for whatever reason, good or bad—as an act of violence. It is accordingly not a hate crime against the fetus just as it would not be a hate crime against potential people to decide to use a diaphragm when having sex with someone of a despised racial or ethnic group, in order to avoid having a mixed-race child. We can find the act offensive (and many will), but the potential person who never develops as a result is not a “victim” of the offensive act.

Furthermore, it is hardly clear that wanting to avoid parenting a child with profound disabilities is offensive. Even some people who currently parent children with Down syndrome have written poignantly about how difficult the decision they made was and how crucial it was that they had the choice rather than experiencing a legal mandate. People who are not prepared to endure the extra expense, the inevitable challenges, and the ultimate loss of their child before he or she reaches old age, should have the choice to opt out of doing so, at least prior to fetal sentience (which appears to occur somewhere between 23 and 30 weeks gestation, according to medical sources). It would be wrong to force a woman to bring a profoundly disabled child into existence against the woman’s will. Until it comes into sentient existence, the fetus has yet to be someone who can be a “victim” of discriminatory abortion. The choice of whether to take her pregnancy to term must accordingly remain with the woman who is already “someone” and whose bodily integrity is uniquely at stake in an unwanted pregnancy.