In the past week, two major news stories have sparked discussions across the nation about our attitudes toward preventive health policies. Although ostensibly very different, the two stories actually present deeply intertwined issues and reflect our society’s unease with diseases that are either unpredictable or poorly understood.

The first article addresses breast cancer. On May 14, 2013, renowned actress and director Angelina Jolie wrote a piece in The New York Times about her decision to undergo a preventive double mastectomy. Her article received widespread acclaim, as well as some criticism. The praise was directed largely toward Jolie’s article’s effect of raising awareness that breast cancer affects women (and men, to a lesser extent) without regard to wealth, social status, or profession, and that the decision to have a mastectomy—whether prophylactic or medically indicated—should not result in stigma or shame. Criticism of the article focused mostly on the perception that the factors affecting Jolie’s decision to undergo the procedure are portrayed simplistically and are not applicable to the vast majority of women.

The second article is on bacterial meningitis. The New York Times published an article on May 17, 2013, entitled “For Gay Men, a Fear That Feels Familiar” that discusses a deadly bacterial meningitis outbreak among gay men in New York City and the steps taken by one physician to curb the outbreak and raise awareness among at-risk individuals. The author of the article attempts to compare the outbreak to the early cases of HIV/AIDS, describing the ignorance, mystery, and fear surrounding the disease. However, unlike with HIV, there is a vaccine for bacterial meningitis. The challenge then, the article posits, is getting people to understand the risk of infection and to proactively take steps to prevent it (by getting a vaccine, currently offered for free in New York City, according to the article).

In this column, I compare and contrast these two discussions. On the one hand is the discussion of breast cancer—a disease that strikes without regard for what someone does in the evenings or on the weekends, or for how much money or fame one might have. One would be hard-pressed to accuse a person with breast cancer as having “deserved” it or having done something to contract it. On the other hand is a strain of bacterial meningitis that some describe as reminiscent of HIV, popularly associated with casual sex among men in dark alleys and back rooms. However, the outbreak could very easily have occurred in another close community, such as within a congregation of a Catholic church due to the sharing of a communion cup.

Using these two examples, I argue that to truly advance health policies, we must abandon our moral approbation toward both diseases and treatments, resolve to educate ourselves as to the health risks we face individually, and proactively take steps that are reasonably calculated to minimize our risk (and, in the case of infectious diseases, to minimize the risk to those around us).

Abandoning Moral Approbation Toward Disease and Treatment

According to a CNN opinion piece by Dr. Aaron Carroll, “[B]reast cancer awareness is at an all-time high in the United States.” Indeed, from Betty Ford’s 1974 disclosure of her breast cancer and mastectomy, to awareness campaigns such as that symbolized by the pink ribbon and the Keep A Breast Foundation’s “I heart boobies” slogan, it seems like everyone is at least “aware” of breast cancer. I recently attended the Kentucky Oaks (on the eve of the Derby), and the roughly 100,000 people in attendance had all donned pink in recognition of cancer survivors. Everyone can get behind the fight against cancer, racing for “the cure.” You can buy shirts that say “Fuck Cancer.” No one will stand against you.

Less talked about, though, is the actual treatment of cancer (breast or any other type). There is no clean “cure,” no panacea that will protect the undeserving innocent from developing this debilitating and often fatal disease. Rather, less-than-glamorous procedures like chemotherapy, radiation therapy, and surgery are the tools with which we fight cancers. And these tools often incur collateral damage: baldness, infertility, scars, to name a few. We do not as readily talk about the treatment of cancer because we are still holding out for a cure.

In that respect, Jolie’s op-ed is both a success and a failure. It is a success in that it talks about the treatment. She is telling women everywhere that her decision to undergo a mastectomy does not make her “less of a woman”; rather, she writes that she “feel[s] empowered that [she] made a strong choice that in no way diminishes [her] femininity.” Understood one way, she is telling women who choose to have a mastectomy, or who must have one, that they are no less female for doing so. As a man, I do not purport to understand what that means to a woman, but I can imagine that hearing that from a woman who is renowned for her beauty and her femininity can be powerful.

However, Jolie’s piece also fails to face head-on the ugly side of treating cancer. I do not in any way mean to diminish her experience, but her solution was a relatively elegant one (and I hope, an effective one). That is not going to be the case for many women. For one thing, some aspects of the surgery she described (such as the “nipple delay”) are complex, and many women who opt for that surgery may not have the same positive outcome she describes. Second, as several critics have pointed out, a mastectomy is a major surgical procedure that carries with it the same risks of any other major procedure, including the possibility that it will not effectively prevent breast cancer in moderate- and high-risk women.

Until someone of Jolie’s celebrity stature comes forward as an “everywoman,” we are not truly engaged in a frank discussion of cancers and their treatment.

In contrast to breast cancer, with its awareness campaigns, is the shadowy disease of bacterial meningitis. Although many states require college students to be vaccinated against the infectious disease before starting their freshman year, it is not a disease that receives the kind of attention that breast cancer does, particularly given that one strain of it primarily affects a small subset of the population.

According to the New York Times article on the latest New York meningitis outbreak, “the bacteria is [sic] carried in the nose and mouth. Though not as contagious as a cold or flu, it can be spread through kissing, sneezing or sharing a spoon.” From this description alone, bacterial meningitis would seem to be fairly indiscriminate in whom it affects. Indeed, it could have arisen in a church congregation that sips from a common communion cup, or among professional athletes who are constantly in close quarters in a locker room and playing field. However, in this particular instance, it mysteriously seems to target gay and bisexual men. The New York Times article states that seven men have died of this particular strain in New York City since 2010, and the rate of infection seems to have been accelerating over the last few months.

Much like the initial response to the HIV/AIDS epidemic, many people, including gay men, are nonchalantly dismissing the disease as something that afflicts promiscuous gay men who frequent sex clubs and bathhouses—as if it were gonorrhea or chlamydia. However, it is that very attitude that hinders both awareness and the treatment of the disease before it can become an epidemic.

Unlike with breast cancer, there is an effective vaccine against bacterial meningitis. Indeed, college freshman in most states have already been vaccinated against it. But the vaccine lasts only five years, so people who are at risk of contracting bacterial meningitis should get vaccinated (again, in some cases).

Thus, these two examples show how moral approbation and negative public perception—either of a disease itself, or of the treatment of a disease—can hinder advances in its prevention and treatment.

Educating Ourselves About Our Individual Health Risks, and Minimizing Them

Whether you are a woman with a family history of early-onset breast cancer or a gay man in an urban setting, it is incumbent upon you to learn and understand your risk factors, and to take appropriate steps based on your risk. Angelina Jolie acknowledges in her article that based on her family history and genetic testing, she “had an 87 percent risk of breast cancer and a 50 percent risk of ovarian cancer.” However, she also points out that “the risk is different in the case of each woman.” In other words, many women do not have the risk profile that Jolie has, and preventive double mastectomy is not the right solution for everyone (or, as it turns out, for most women).

In a similar way, if you are a gay man living in New York City, you are statistically at a higher risk for contracting bacterial meningitis, just as college freshman are. To effect positive attitudes toward preventive health measures, we must acknowledge facts in the absence of judgment. Bacterial meningitis is no more a “gay disease” than is the common cold. If we are at higher risk for certain diseases, then it is our responsibility to minimize or otherwise address that risk. In the case of infectious diseases, that responsibility is an ethical one.

In her article, Jolie laments the high cost of genetic screening for factors associated with higher risk of breast cancer. However, as Dr. H. Gilbert Welch points out in a CNN opinion, a strong family history of cancer may be as telling as the genetic test, and is certainly much cheaper to obtain.

One thing that the breast cancer awareness campaigns have accomplished is that screening for cancer now carries little or no stigma, in contrast with sexually transmitted infections (STIs) and diseases that are perceived to be associated with sexual activity (whether they actually are or not). That is one thing that our society will have to change in order to advance preventive health.

Attitudes toward health issues—whether related to cancer, infectious diseases, or other types of illnesses—are constantly evolving, and vary from culture to culture, as well. However, of universal importance is the need to prevent and treat illnesses simply because they are illnesses. There is no place for moral approbation or judgment in the prevention and treatment of disease.

After a scandal-free first term, and only a few months into his second term, President Barrack Obama is suddenly faced with a series of burgeoning scandals.  It’s a trifecta: Benghazi, IRS, and the AP’s phone logs.  But a close look shows that these supposed scandals are all smoke and no real fire.  While Congressional Republicans, Fox News, and other anti-Obama wags will try to keep them smoking, no high-level officials in the Obama Administration are going to get burned.  And the broader public will tire of watching the smoke. There is nothing Nixonian or Watergate-like about any of these purported scandals, and those claiming otherwise are remarkably ignorant of history.

As I wrote in my 2004 book, Worse Than Watergate: The Secret Presidency of George W. Bush, having experienced Watergate firsthand and having studied virtually every presidential scandal before and after Watergate (out of personal curiosity), I have some understanding of the nature and dynamics of scandals.  (Incidentally, I found the actions of Bush/Cheney to be worse than Watergate because their use of secrecy to take the United States to war in Iraq on the false pretense of pursuing weapons of mass destruction, and their use of torture, a crime against humanity, were way beyond scandal.)

Notwithstanding the plentiful material that is available on American political scandals, few American scholars study our scandals.  Indeed, I may be as much of a “personally experienced” expert on political scandals as can be found, so I am offering a few of my thoughts on Obama’s growing problems, while also drawing upon the thoughts of a academics who have studied them.

Although all scandals have much in common, each has its own unique DNA, so they must be addressed separately.  But let me begin with an analysis of the common characteristics of all modern political scandals.

The Nature of Modern Political Scandals

UK academic Robert Williams (University of Durham) undertook a study for Political Scandals in the USA (1998) noting that “[a]ttempts to classify scandals have been fraught with difficulties” because they are difficult to define.  Yet this definitional problem is less of  a problem with “political” scandals, for such scandals, by their very name, involve those within the political process.

As Williams notes, political scandals “tend to involve the use of public office for private benefit and/or the abuse of power in the pursuit of policy goals.” In addition, many such scandals have involved election finance. More specifically, he notes: “although every political scandal is different, they all usually involve allegations of violation of the political process and the illegitimate exercise of power.” I would add that they frequently involve sex as well.

Another UK scholar, John B. Thompson (University of Cambridge), I believe has even more perceptively analyzed modern scandal in his work Political Scandals: Power and Visibility In the Media Age (2000).  In examining the etymology of the word scandal, Thompson comes up with a modern working definition: The modern scandal “refers to actions or events involving certain kinds of transgressions which become known to others and are sufficiently serious to elicit a public response.” More specifically, modern scandals provoke a response by the mainstream (non-partisan, as well as both right- and left-leaning) media.

Viewing scandal in these terms, Thompson found that they all had common characteristics: (1) the transgression violated widely held values, norms or moral code; (2) typically there is an element of secrecy; (3) non-participants are offended by the transgression; (4) and this disapproval is expressed publicly by denouncing the actions or events; and, in most cases but not all, (5) the disclosure and condemnation of the actions or events damages the reputation of those responsible.  Most importantly, however, Thompson found that modern political scandals are “mediated,” meaning that the news and other media take the disclosure of the transgression, and make it an issue for public discussion.  In fact, if the media ignores a reported transgression, it will not likely become a scandal.

With this background in mind, let’s look at the three scandals that have erupted to confront the Obama Administration, taking them in the order they have arisen: The Benghazi scandal, the scandal regarding the IRS’s targeting of conservative organizations, and the scandal over the Department of Justice’s subpoenaing the telephone records of reporters and editors at the Associated Press.

The Benghazi Scandal

As readers will doubtless recall, on September 11, 2012, the American diplomatic mission at Benghazi, Libya, was attacked, and ten people were injured, along with four who were killed, including U.S. Ambassador Christopher Stevens.  Following the attack, on September 12, Secretary of State Hillary Clinton announced the death of Ambassador Stevens, and President Obama, joined by Secretary Clinton, denounced the attack from the Rose Garden at the White House.  On September 16, U.N. Ambassador Susan Rice, appeared on virtually all of the Sunday TV talks shows in Washington, and provided the Obama Administration’s analysis of the situation.

For example, on CBS’s “Face The Nation,” Rice responded to a question of whether the attack was preplanned as follows: “We’ll want to see the results of that investigation to draw any definitive conclusions,” Rice began. “But based on the best information we have to date, what our assessment is as of the present is in fact what began spontaneously in Benghazi as a reaction to what had transpired some hours earlier in Cairo where, of course, as you know, there was a violent protest outside of our embassy . . . sparked by this hateful [anti-Muslin] video. But soon after that spontaneous protest began outside of our consulate in Benghazi, we believe that it looks like extremist elements, individuals, joined in that—in that effort with heavy weapons of the sort that are, unfortunately, readily now available in Libya post-revolution. And that it spun from there into something much, much more violent . . . .  We do not have information at present that leads us to conclude that this was premeditated or preplanned.”

When Rice was asked whether or not al Qaeda was involved, she replied: “Well, we’ll have to find that out. I mean I think it’s clear that there were extremist elements that joined in and escalated the violence. Whether they were al Qaeda affiliates, whether they were Libyan-based extremists or al Qaeda itself I think is one of the things we’ll have to determine.”

Republicans have taken exception to everything that happened in Benghazi by accusing Susan Rice, Hillary Clinton,, and President Obama each of lying, and the Obama Administration of failing to protect the Americans stationed at Benghazi. Republicans  sought initially to make this an issue in the 2012 election, with Mitt Romney accusing President Obama of refusing to describe it as a terrorist attack on September 12th, when, in fact, the President had done exactly that, which resulted in Romney’s eating crow for his false public accusation during the presidential debate.

Most recently, the Republicans have held hearings for Benghazi “whistleblowers“ before the House Oversight Committee chaired by Darrell Issa (R-CA), who has been searching for years for Obama scandals.  The news media largely ignored the hearings, which were something of a non-event. Notwithstanding months of effort, accompanied by a full-throated chorus of conservative media outlets, to make this a major scandal, Bill Maher spoke for millions of Americans when he recently said, “I still don’t understand what the scandal is.” Understandably, President Obama recently called the GOP Benghazi focus “a sideshow.”

Viewing this situation analytically, Benghazi is a political scandal ONLY for Republicans. In truth, it is a scandal in search of an offending underlying transgression.  Actually, it is more like a GOP conspiracy theory, which keeps evolving as questions are answered by claiming new purported wrong, than it is like a scandal. The GOP motive appears to be to somehow muddy and seeks to harm Hillary Clinton since it happened on her watch as Secretary of State.  In fact, I think the GOP is doing Hillary a favor by taking the air out of this issue if she decides to run for president in 2016, because you cannot create a scandal when no one can figure out what the wrongdoing was, and simply inventing new alleged wrongdoings, which distort the truth and are based on the same basic facts, only works for a short time.

The legs on this so-called scandal have been buckling and wobbling for months.  I expect the Republicans to soon give it up, since they now have what they believe are better scandals with which to work, particularly the scandal regarding purported abuse of power by the Internal Revenue Service (IRS), an issue all Americans understand.

The Scandal Relating to IRS Targeting of Conservative Organizations

On May 17, 2013, the acting commissioner of IRS, Steve Miller, and the Inspector General of the Treasury Department, Russell George, who recently issued an investigative report, are/were scheduled to testify before the House Ways and Means Committee.  They will address the scandal that erupted a week earlier, when Lois Lerner, the director of the Exempt Organizations Division of the IRS, let slip the fact that the IRS had targeted conservative organizations seeking 501(c)(4) exemption from the tax code as “social welfare” organizations.  Within hours, it exploded into a scandal.

Lois Lerner, a career federal employee and attorney, is not a person who would be cast as the catalyst of an IRS scandal.  She became the face of this scandal when she was answering questions at a meeting in Washington of the tax section of the American Bar Association (ABA).  It appears that she did not plan to create the outcry that has resulted, although some have questioned if she made her comment in anticipation of the critical report that was being prepared by the Treasury Department’s Inspector General.

Given the disastrous conference call that followed her comments at the ABA meeting, I doubt that she planned to cause the stir that has resulted.  While she is an experienced and capable upper mid-level federal employee, she was over her head in dealing with the news media and the public alarm—and ensuing scandal—that her comments at the ABA provoked.

The IRS is an agency all Americans love to hate.  It has had a long history of scandals, although none of recent vintage. The underlying transgression of treating any taxpayer unfairly, and with political bias, is something that is widely understood and inherently offensive.  Not surprisingly, it is believed by many—though the facts are still unclear—that this activity was widespread and went beyond the Exempt Organizations Division operations in Cincinnati, Ohio, as some claim. This matter will be sorted out in the Congressional hearings.

This is not, however, as claimed by conservative commentators like George Will, the equivalent of the activities for which Richard Nixon was impeached, and the 1974 House impeachment inquiry did not know a fraction of what Nixon was doing. (For a book-in-progress, I am listening to Nixon’s once-secret recordings, hundreds of conversations relating to Watergate that no one has bothered to transcribe, or maybe even listen to.  Nixon’s demands to use the IRS against his perceived enemies were stunning, far beyond anything I even suspected when I was working for him.  He only spoke with his two top aides, H.R. Haldeman and John D. Ehrlichman, on this subject—and he wanted to use the IRS as a weapon against those who caused him political problems.)

President Obama is actually fortunate that the Treasury Department’s Inspector General (these IG offices throughout government are post-Watergate reforms) had received complaints from Members of Congress about the granting of 501(c)(4) exemptions, and had undertaken an investigation, which partially leaked after Lois Lerner made her comments about targeting conservative organizations, but has now been released in full. That report indicates that the targeting of conservative groups was an internal IRS decision—mismanagement of the exemption procedure, according to the IG. It was  not a result of the Obama White House’s calling for it.

While Republicans will undoubtedly pound the scandal drum about this activity to make it seen to be more than, in fact, it was, this too will not be a significant scandal.  The underlying transgression does not appear to have been motivated by partisan politics or pressure, but rather by ineptitude by lower IRS employees, and by IRS management’s failing to correct a conspicuously bad practice.  And Attorney General Eric Holder’s FBI investigation of IRS, in which he has made clear that if any IRS officials gave Congress false information then they will be held responsible, along with the resignation of the Acting Commissioner, is taking the oxygen out of this scandal quickly.

The Scandal Relating to the Justice Department’s Subpoenaing AP Telephone Records

The fact that the U.S. Department of Justice secretly obtained the telephone toll records of reporters and editors of the Associated Press (AP) in connection with its investigation of a serious leak of national security information has angered both the left and right, and given the fact that this scandal involves the news media, they are outraged on both left and right.  Nonetheless, this is not really a scandal for there does not appear to be an underlying transgression by those in government.  Rather, the scandal simply illustrates that newspeople are very unhappy with the policy of the Obama Administration in prosecuting leakers.

This story broke when the AP reported that it had been informed by the Justice Department that it had secretly obtained AP phone records (listing incoming and outgoing calls) of several AP reporters and editors who were involved in a May 7, 2012 story about a CIA operation that thwarted a terror attack in Yemen.  The head of the AP sent a letter to Attorney General Eric Holder claiming that the government had sought and obtained information far beyond anything that could be justified by any specific investigation, and demanded the return of the phone records and the destruction of all copies.

Later reports have revealed that the records were obtained after a federal judge approved a subpoena, which was sought pursuant to Justice Department regulations that apply in such First Amendment-sensitive cases, and was approved by Deputy Attorney General James Cole, a seasoned career attorney who runs the day-to-day operations of the department.  There is no underlying transgression, no wrongdoing by those conducting the investigation. Rather, there is displeasure among the news media with Obama’s policy of going after those who leak national security information—which they only have access to because they have pledged that they will not provide it to unauthorized parties.

Ironically, many of the members of Congress who are now complaining about the subpoena had earlier called for the Justice Department to conduct an investigation of this leak—which made President Obama look good in breaking up an Al Qaeda plot to kill Americans before the elections—because they believed that the Obama White House was behind leaking the information before the election to help the president. Now they are complaining about that investigation, and an unhappy news media is delighted to cover them.

All presidents are troubled by national-security leaks.  No president can govern in a fishbowl, but there is a delicate balance to be struck in dealing with such leaks.  The underlying statute prohibiting leaks—the Espionage Act—was written in 1917, and while it is broad enough to cover news outlets that publish leaked information, no president has gone beyond those who leaked the classified information in the first place.  Congress has clearly authorized all presidents to pursue leaks of classified information.   In seeking the records of the AP in the investigation that has caused the current outrage, the Obama Justice Department has not gone nearly as far as it might, and called the AP’s editors and reporters before the grand jury to demand that they reveal their source(s) or be jailed for contempt of court.  So using a court-approved subpoena is hardly an overreach.  In addition, every reporter in Washington who covers national security stories knows that you do not talk to leakers on the telephone, or in places where there are surveillance cameras.

In sum, this scandal is all mediation and no underlying transgression.

The Bottom Line on Obama’s Scandals

If these three purported scandals are handled properly, President Obama should have no problem with dispatching them.  How he proceeds from here will determine if he is even tinged by them at all.

This is the era of children’s liberation from tyrannical treatment.  Child-sex-abuse victims have been coming out of the woodwork, and demanding the justice that has been long delayed, but truly owed.  First, the Roman Catholic Church was on center stage, but now it has had to make room for virtually every other religious organization, including the Jehovah’s Witnesses, Orthodox Jews, and the Church of Jesus Christ of Latter-Day Saints.  In each institution, pedophiles were harbored.  Religious groups are not alone, of course, with more recent additions to this list of shame including the Boy Scouts; prep schools like Horace Mann, Poly Prep, the Landmark School, the Brooks School, and Deerfield Academy; and, of course, Penn State.

On the heels of these institutions’ scandals, which are finally in the spotlight, the vast swath of abuse that occurs in homes across the country is now beginning to emerge into public view.  We have let our children down in every scenario, and, sadly, even the family courts too often hand children right back to the very person who abused them.  We have much to do.  Today, though, I will focus on abuse in sports.

Each of the institutions that I listed above has harbored adults who made the lives of children miserable, either through abuse or by tolerating the abuse.  The spotlight has now turned on not just the sexual abuse that we have ignored for decades, but also the emotional and physical abuse suffered by children, right into college, at the hands of coaches, with Rutgers the perfect example of the tyranny of adults.

Mike Rice’s Abusive Behavior Is Far From an Isolated Example

Rutgers basketball coach Mike Rice was finally fired after he was caught on-camera berating and throwing basketballs at his players.  It was an uncivilized and childish display of temper and he deserves the public disapprobation that he received for it, in addition to the loss of his job.  The sad truth is that there are many coaches across the United States who are just as emotionally and physically abusive as Rice, and, in the absence of a video, the athletes are simply tolerating it in order to stay on the team (and keep their scholarships).  Or, in some circumstances, athletes are being forced to give up their beloved sport in order to escape the mistreatment.

Just as there are many fine priests who do not deserve to be lumped in with the priest predators, there are also many coaches who are upstanding men (and women) who do wonderful things for our children.  But, as in the priestly universe, the good ones must take a stand against the bad ones in order to avoid becoming negatively labeled, or, worse, legally liable, themselves.

Abuse in the sports context ranges from sexual abuse, as we have heard from Olympic and many other athletes, to emotional and physical abuse.  Coaches are not gods, but rather, fallible humans, and they can be vicious, racist bullies, or the facilitators of players’ bad behavior.  As the mother of athletes, I have witnessed coaches engage in repetitive, damaging emotional abuse—including one coach who let his own son physically threaten other players, and another who stood by while team members bullied their teammates.  Then there is the Ivy League coach who asked a Chinese-American athlete if he needed to turn the ball into “white rice” to get her to pay attention to it, and then told these highly skilled athletes to “quit thinking like girls” or they would never win.  And there is also the high- school club coach who called teenage girls (who were in perfectly good shape) “fat cows,” and physically yanked them off the field when they did not play to the coach’s expectation.  One player explained her abusive coach like this: “We know that if he’s constantly screaming at us, he thinks we are good players.  If he ignores us, that means we are useless players.”  When these incidents happen at every practice and every game, you have a pattern of denigration that no player should have to endure, and no parent should have to tolerate.

Rutgers’ Rice is the tip of the iceberg.  As we saw at Rutgers, the abusive coaches retain their jobs because the Athletic Directors turn away, while university and sports- organization heads don’t take the abuse complaints seriously.  Unlike with Rutgers, for most athletes, there is no video documentation, so the cruelty continues under the radar, with no solution for the athlete who loves the sport or needs the scholarship, or both.

As in the church and school cases, this abuse scenario is rooted in the power differential between the child and the coach.  Even an older child, one in college, is at a distinct disadvantage vis-à-vis his or her coach.  For the scholarship athletes who cannot pay for college without their athletic scholarships, their very education (and apprenticeship in the sport, for those dreaming of the pros) rests on the coach’s continuing support of the athlete.  And even the non-scholarship athlete’s coach holds tremendous power over the athlete, if they want to play, and play a particular position, and learn the sport from someone knowledgeable.

Reimagining Sports Without Abuse

The tropes of sport need to be reconfigured.  The model of the Marine Corps Staff Sergeant screaming at recruits is outdated and abusive.  In this context, “taking one for the team” has an ominous underside.  With the power they are given, the tyrant coaches get carte blanche to impose their will and their tantrums upon those they control.

At least with sexual abuse, it is plainly illegal and has been for a very long time.  So there are parameters that institutions should have honored, even if many did not.  Part of the problem in sports, in contrast, is that there are few and inadequate codes of conduct in place.

Coaches are not the only bad actors in sports, of course.  There are unchecked bully athletes galore.  The Utah soccer player who recently hit and killed a referee proves the need to get serious about improving our sports culture, and quickly.  It is time to make the principles of good behavior, and the penalties for bad behavior, explicit.

A Model Code of Conduct for Coaches and Athletes Is Urgently Necessary

To the credit of some sports, they are working to ensure they will not be the next Penn State or USA Swimming, but others are cowering, fearing that if they adopt new standards, they are conceding the inadequacy of their prior standards.  That is the reasoning that locks institutions into cycles of abuse, and future liability.  Drawing on a number of existing codes and some that are in process, I have compiled and drafted a Model Code of Conduct for sports.

I believe that there are three elements that are absolutely essential if we are to change the culture of abuse in sports, and which are missing from many current codes.  Of course, criminal background checks, training of all coaches and staff on identifying the signs of abuse, exclusion of coaches who have been identified as sexual abusers, and toll-free hotlines for reporting abuse are an absolute minimum.  And everyone in the organization at issue, whether administrator, coach, or athlete, should have an obligation to report abuse to the organization, on the toll-free hotline.  Failure to report should be treated the same as committing the offense would be, for silence and secrecy are the abuser’s best friend.

The Meaning of Good Sportsmanship

Here are the three other principles that need to be observed, as well.  First, let’s remind each other what “Good Sportsmanship” truly is.  This is an old-fashioned concept that got lost in the charge to make each of our kids year-round specialists.  Sports are breeding grounds for violence, abuse, and immoral conduct without an ethic of sportsmanship.  Here is my definition:

Good sportsmanship is demonstrated when teammates, opponents, coaches, and officials all treat each other with respect, dignity, and fairness.  They all understand that they each have an individual function on perform the field—a “job,” as it were — and that it’s the interaction of these jobs that makes for a successful contest.  Players compete and communicate, coaches direct and encourage, and referees officiate to keep the game fair and safe; for a contest to run as it should, they should not cross the lines into each other’s area of responsibility.  Players learn the basics of good sportsmanship from the adults in their lives, especially from their parents and their coaches.  Players who see these adults behaving in a sportsmanlike way gradually come to understand that the real winners in sports are those who know how to persevere and to behave with dignity—whether they win or lose a game or a call, and whether or not they prevail in any other situation that occurs on the field.

Good sportsmanship requires that everyone play fair.  When a coach throws a playoff game to ensure a more desirable seed in a national tournament, he or she should be punished for lack of sportsmanship and a betrayal of all that is good in sports.  And when a player throws a punch at a referee or umpire, he should be removed immediately.

The Need to Follow Anti-Abuse Codes

Second, bans on emotional and physical abuse need to be explicit. Here is an example of such bans and their key definitions:

1. Physical Abuse: Contact or non-contact conduct that results in, or reasonably threatens to, cause physical harm to an athlete or other sport participants. Physical abuse is also any act or conduct described as physical abuse or misconduct under federal or state law (e.g. child abuse, child neglect, assault). Exception: professionally accepted coaching methods of skill enhancement, physical conditioning, team building, appropriate discipline, or improving athlete performance that are appropriate to the sport will not be considered physical misconduct.
2. Emotional Abuse: A pattern of deliberate, non-contact behavior that has the potential to cause emotional or psychological harm to an athlete. These behaviors include verbal acts, physical acts, and acts that deny attention or support. Emotional abuse also includes any act or conduct described as emotional abuse or misconduct under federal or state law (e.g. child abuse, child neglect). Exception: professionally accepted coaching methods of skill enhancement, physical conditioning, team building, discipline or improving athletic performance will not be considered emotionally abusive.
   1. Verbal Acts: A pattern of verbal behaviors that (a) attack an athlete personally (e.g., calling them worthless, fat or disgusting) or (b) repeatedly and excessively yelling at a particular participant or participants in a manner that serves no productive training or motivational purpose.
   2. Physical Acts: A pattern of physically aggressive behaviors, such as (a) throwing sport equipment, water bottles or chairs at, or in the presence of, participants; or (b) punching walls, windows or other objects.
   3. Acts that Deny Attention or Support: A pattern of (a) ignoring an athlete for extended periods of time or (b) routinely or arbitrarily excluding participants from practice.

The Key Need for a Way to Report Abuse

Third, every sport needs an avenue for an athlete to report abuse safely and confidentially, without fear of retaliation, outside the organization.  This is a pathway separate from the hotline that is needed for reporting abuse within the organization, which I described above.  These calls need to be directed to an entity, e.g., a psychologist or a nonprofit that specializes in such issues, that is not accountable to the organization or institution and is staffed by psychologists who have the expertise to take such reports, and who are mandated reporters of abuse to the authorities.  Yes, this may have some additional costs, but without having a neutral recipient for the information relating to abuse, athletes simply won’t be protected, according to one of the experts in this arena: Katherine Starr, an Olympic swimming athlete and a victim of abuse, who started safe4athletes.

It would be nice if we only permitted civilized adults to be coaches, but that standard is perhaps too lofty, and also too vague.  It is particularly inadequate in a culture that, until Penn State, included the “value” of winning at all costs.  We need codes of conduct, and we need to rid our sports of the tyrants, the bullies, and the pedophiles, even when those coaches are wildly successful.  There are some costs that are just too steep to pay.

We also need to empower athletes.  Bring on the cameras!

The U.S. Supreme Court recently decided the case of Missouri v. McNeely.  In McNeely, a majority of the Court rejected the idea of a “per se” exigent circumstances exception to the warrant requirement for blood tests in drunk-driving cases.  That is, the Court held that police may not automatically order a blood test on someone whom they have lawfully arrested for DWI (driving while intoxicated) but must instead seek a warrant, absent a reason to skip the warrant—a reason that goes beyond the simple fact that blood-alcohol-concentration diminishes with the passage of time.

The Court held that police must conduct a “totality of the circumstances” exigency analysis to determine whether seeking a warrant prior to performing a blood test would “significantly undermin[e] the efficacy of the search” in an individual case.  In this column, I will consider whether the Court’s ruling makes sense, in light of what generally happens in DWI cases. I will also discuss an alternative approach proposed by the Chief Justice.

Why Get a Warrant?

To determine whether the Court was right to apply the warrant requirement to BAC (blood-alcohol concentration) testing, it may be helpful first to consider the source and purpose of the warrant requirement.  The Fourth Amendment’s text provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”  The text does not itself require a warrant, but it does go on to say that warrants may issue only in the presence of probable cause, among other things.  Notwithstanding the lack of a textual warrant requirement anywhere in the Constitution (and the similar lack of a textual requirement for probable cause as a prerequisite to a search), the U.S. Supreme Court has interpreted the phrase “unreasonable searches” to require—in the garden-variety case—that police have probable cause, and that they obtain a warrant prior to performing a search.

The rationale for requiring a warrant is that it permits a neutral and detached person, one who is not engaged in the “often competitive enterprise of ferreting out crime,” as the Court has put it, to take a sober second look at the evidence that has aroused a police officer’s suspicion.  The magistrate who reviews the warrant application can then determine, without possessing the zeal of someone who spends most of her time tracking down criminals, whether there really is probable cause, as the officer believes there is.  Though the word “seizures” appears in the same phrase in the Fourth Amendment as the word “searches,” the Court has been more generous in permitting police to skip the warrant in the case of seizures than it has in the case of searches.

The Typical Drunk-Driving Arrest Scenario, and the Facts in McNeely

This background all becomes relevant to the Court’s ruling when we turn to the drunk-driving arrest scenario.  Typically, such an arrest occurs when police observe a pattern of driving that suggests intoxication, including weaving or other demonstrated incompetence at the wheel.  Based on their observations of such driving, which amount to “reasonable suspicion” of DWI, police may pull over or temporarily “stop” the drunk-driving suspect for further investigation.

At this stage, police may ask the suspect questions, look into the suspect’s eyes (for tell-tale signs of intoxication), sniff at the air near the suspect (for the stink of alcohol), and perhaps ask the suspect to walk a straight line or otherwise display the sort of coordination that most sober people exhibit.  The officer may also ask the suspect to take a breathalyzer test.  If the suspect’s behavior, appearance, fragrance, and/or breathalyzer results (or the refusal to take a breathalyzer test) give rise to probable cause to believe that the driver is intoxicated, then the officer may arrest him for DWI.  An arrest is a “seizure” for Fourth Amendment purposes, but under a case called United States v. Watson, it does not require a warrant when it occurs in public.  Police were therefore able to arrest Tyler G. McNeely for DWI, based on probable cause, without first seeking a magistrate’s neutral review.

Once they arrested Mr. McNeely, police brought him to a nearby hospital and asked a lab technician to take a blood sample for a BAC test, over McNeely’s protests.  The test results showed McNeely to be at .154 percent, well over the legal limit, and he was subsequently charged with DWI.  In the trial court, McNeely moved to suppress the BAC test results, arguing that police performed an unreasonable search on him by testing his blood without a search warrant and without his consent.  The trial court agreed and suppressed the evidence, and the State Supreme Court affirmed the trial court’s decision.

The Exigent Circumstances Exception

Though the Court ordinarily requires police to obtain a warrant before performing a search, it recognizes exceptions to the warrant requirement for a variety of situations that can confront the police.  One important exception exists for “exigent circumstances,” which are emergency situations that demand immediate action.  When police, for example, are in “hot pursuit” of a fleeing felon who runs into a house, they face an “exigent circumstance” that excuses the ordinary requirement that they obtain a warrant before entering a private home.

One of the exigencies that the Court has recognized as pertinent to whether police may proceed with a search in the absence of a warrant is the risk that evidence could be destroyed in the time it takes to procure a search warrant.  Because of this risk, if police have probable cause to believe that a suspect who is located inside his home (and who knows that police are right outside the door) is in possession of drugs, police may be able to enter immediately, without a warrant.  That is because waiting for a magistrate’s approval would give the suspect the opportunity (and motive) to destroy the evidence in his possession.  The State of Missouri, in McNeely, argued that whenever police have a drunk-driving suspect in custody, they face an exigent circumstance of this sort: With every passing minute of blood-test delay, the suspect’s blood-alcohol-concentration—the best evidence of DWI—diminishes.

The Supreme Court rejected the State’s argument for an across-the-board exigency exception for blood tests in drunk driving cases, ruling that while the passage of time does reduce the BAC of the suspect, it does not necessarily and always present an emergency.  Given that police can obtain warrants electronically and otherwise, in a relatively rapid manner, the Court noted, getting a warrant is often a practical option, even in a DWI situation.  Since a warrant is usually required in the absence of an exigency in a particular case, the Court held in McNeely that the same approach should apply to drunk-driving arrests:  if police can show a particular exigent circumstance (beyond the always-present ongoing metabolization of alcohol by a suspect), judged by the “totality of the circumstances,” then they may test his blood without a warrant.  Otherwise, a warrant will be required.

The Problem With the Majority’s Approach

There is a part of me that finds the majority’s approach understandable and even reassuring.  In a time in which the Court seems to be regularly announcing inroads on existing constitutional protections, the McNeely decision holds the line and says that we will not have an across-the-board exception to the warrant requirement for a particular class of criminal evidence:  BAC of drunk drivers.  Rather, to rely on “exigent circumstances,” police must demonstrate a genuine emergency that they confront in the individual case, regardless of whether such cases “in general” create an exigency.  As a result of this decision, moreover, it seems that people who could otherwise be wrongfully subjected to unjustified blood tests might be spared, because a magistrate can reject the officers’ potentially overzealous perceived need to collect evidence.

The reason, however, that I am ultimately unconvinced by the majority’s analysis turns on the nature of DWI evidence.  As mentioned earlier, the best evidence of DWI is the result of a blood-alcohol test taken as close to the time of driving as possible.  As everyone acknowledges, a person’s blood-alcohol-concentration steadily diminishes over time as soon as the person stops drinking.  Therefore, in every case in which a suspect is actually guilty of DWI, evidence of guilt is literally vanishing with whatever time it might take for an officer to seek and obtain a search warrant.

The vanishing of evidence may not matter, in some cases, because the suspect’s BAC is so high that it will continue to exceed the legal limit even after whatever delay is occasioned by seeking a warrant.  But a police officer arresting a suspect for DWI is not in a very good position to assess whether that is true in a particular case.  And unlike the usual exigency context in which a suspect, alerted to the arrival of police, might destroy evidence of drug possession (because he has the opportunity and motive to do so before a warrant issues), the drunk driver has no choice but to destroy evidence, because his liver detoxifies his blood automatically, without any voluntary input from him.

Justice Thomas’s Dissent

Furthermore, as Justice Thomas notes in his dissent, even if the suspect remains drunk enough for a conviction at the time of the warrant-authorized BAC test, most states have heightened penalties for the driver whose blood alcohol level is .15% or above, which is nearly double the legal limit of .08%.  A short delay in a blood test could therefore mean the difference between proving a BAC of over .08% and proving one of over .15%, a high BAC that would permit more serious punishment.  There is, of course, no way for a police officer arresting a DWI suspect to know whether or not the suspect’s current BAC is on the verge of dropping below .15%.

Justice Thomas offers a useful and witty hypothetical example to illustrate the exigency that police face in DWI cases.  Imagine that police see an individual worker carrying bundles out of a warehouse and throwing each bundle into a large bonfire.  Assume that the police have probable cause to believe that the bundles contain marijuana but that there is only one worker, so police expect it to take hours for all of the bundles to be destroyed.  Justice Thomas observes that police would be able to search the warehouse without a warrant, based on the exigency posed by the imminent destruction of evidence.

In Justice Thomas’s scenario, it would be absurd to suggest that police must seek a warrant because the delay involved in seeking a warrant might still leave some of the bundles intact, since the worker burning the bundles is operating by himself.  For similar reasons, Justice Thomas contends, the fact that some level of alcohol might remain in the suspect’s blood even after a warrant-seeking delay, does not alter the fact that the suspect’s diminishing blood-alcohol-concentration creates an exigency justifying an immediate blood test.  Officers need not countenance the destruction of evidence just because there might still be other undestroyed evidence left behind.

Chief Justice Roberts’s Elegant Compromise

Chief Justice Roberts, in an opinion (concurring in part and dissenting in part), joined by Justices Breyer and Alito, arrives at what I think is a smart and effective solution to the DWI-exigency problem.  The Chief Justice points out that ordinarily, an exigent circumstance offers the police an immediate opportunity for a search.  For example, a police officer with probable cause for a search might be standing at a suspect’s front door, knowing that the suspect is aware of the officer’s presence and that the suspect has motive and opportunity to destroy the drugs in his possession.  Only by entering the house immediately can the officers prevent the destruction of evidence.

In the case of a drunk driver, by contrast, officers typically cannot perform an immediate search, even though the BAC level is diminishing.  Instead, police ordinarily must call upon medical personnel, present at a hospital, to draw the blood (rather than drawing it themselves at the scene).

This distinction between ordinary searches and blood tests is relevant in McNeely, because seeking a warrant, in the latter case, does not necessarily delay the blood test.  In some cases, a ride with the suspect to the nearest hospital will take the same amount of time (or more time) than the simultaneous acquisition of a warrant (by telephone or through other available electronic means).  In such cases, police can obtain a warrant and also order blood collection as soon as someone qualified is available to draw the blood.  And when they can do so, the Chief Justice says, they should do so.  After all, review by a detached and neutral magistrate is presumptively required by the Fourth Amendment case law.

Chief Justice Roberts is realistic about the uncertainties in a DWI arrest situation.  Police may believe that getting a warrant will take longer than a trip to the hospital for a blood draw.  If their belief is reasonable, says the Chief Justice, then they do not need to seek a warrant at all.  Furthermore, if they do make an attempt to get a warrant, but the magistrate has not yet reviewed the warrant application by the time a medical technician is available to draw blood, the officers can go ahead and order the BAC test, rather than waiting for the magistrate’s decision and thereby delaying the test:  “If an officer could reasonably conclude that there is not sufficient time to seek and receive a warrant, or he applies for one but does not receive a response before blood can be drawn, a warrantless blood draw may ensue.”

The Chief Justice’s solution would work well, because it properly recognizes that any delay in the blood test will result in the loss of evidence.  At the same time, his opinion accommodates the majority’s concern, and it acknowledges that seeking a warrant in these circumstances does not always occasion a delay in the search.  In addition to addressing the problem effectively, this approach also gives police guidance about what to do when they arrest a drunk driver.  By contrast, the majority’s approach offers officers virtually no guidance at all, but states only that “[i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so” (emphasis added).  Such a vague directive, perhaps ironically, may significantly undermine the efficacy of the majority’s opinion.

Rabbi? Priest? Imam? Justice of the peace? These are the usual suspects with authority under state marriage laws to preside over wedding ceremonies.  Should a minister ordained online with the click of a button be added to the list? Whether ministers ordained by the Universal Life Church (“ULC”), an online ministry with more than 20 million ministers, can lawfully preside over weddings is a recurring question in lawsuits.

In a recent opinion, in Oswald v. Oswald, an appellate court in New York suggested that a ULC marriage was valid.  This might not seem surprising, but it departs from three other cases in New York that have held the opposite, one of which was a fellow appellate court.  In this column, I’ll explain the new ruling and the split of opinion that New York law now reflects.

Oswald v. Oswald: Were They Ever Married?

On October 29, 2005, Henry and Victoria Oswald were married.  The ceremony was performed by a ULC minister, in Washington County, New York.  Three days before the wedding, the parties signed a prenuptial agreement that was, like most such agreements, to take effect “only upon the solemnization of [the] marriage.”  The agreement, again like most, purported to fix the parties’ financial obligations should the marriage end in divorce.

Five years later, Henry filed for an annulment—a declaration that the marriage never validly existed.  His claim rested on the assertion that the minister who presided over their wedding did not have the authority to do so.  He relied on prior precedents in New York that had held that such ministers do not meet the legal definition of clergy, and the Universal Life Church does not meet the legal definition of a church.  On the basis of these precedents, the trial court granted his motion for summary judgment that the prenuptial agreement was unenforceable because the marriage never validly existed.  The wife appealed, which led to the ruling cited above.  Were the Oswalds ever legally married?

Marriage Law and the Role of Officiants

State marriage laws require that marriages be solemnized and offer parties a choice of religious and secular officials with authority to preside over a wedding.  Marriage law imposes certain prerequisites to a valid marriage.  First, the parties must be eligible to marry in general (not lacking in mental capacity, of sufficient age, not already married to someone else, and so on) and eligible to marry each other (not closely related by blood, e.g.).  Second, the parties must appear in person at the clerk’s office to apply for a marriage license and then wait an assigned period of time, usually a few days at most.  Third, the marriage must be solemnized in some kind of ceremony (no specific form required) at which an officiant with the authority to preside over the wedding elicits the consent of both parties (“I do”) and declares them married in the eyes of the state (“I now pronounce you . . .”).  The officiant then obtains signatures from the parties and witnesses (if required by the state), certifies that the ceremony had all the requisite components, and files the paperwork with the clerk’s office that issued the license.  (For the ten or so states that allow common-law marriage, the second and third requirements are lifted in favor of a private agreement to marry.)

In the typical marriage code, the state delegates authority to make sure the legal requirements are met to private officiants; it allows them to be the eyes and ears of the state.  This system reflects the complicated religious/secular marriage traditions in the United States.  A legal marriage is a civil status.  The government grants rights to, and imposes obligations on, married couples; it also regulates entry and exit—who can get married and how, and whether and on what terms a couple can get divorced.  But many people feel that marriage is also, or even primarily, a religious institution.  They want to get married in a church or other place of worship, with the official legal requirements enmeshed in a religious ceremony or mass.  The state defers to these wishes, by allowing a religious ceremony to fulfill the secular, civil legal requirements.

Who Is a “Minister”?  What Constitutes a “Church”?

All states allow some array of civil officers to solemnize marriages and some array of religious figures to do so, too. State statutes generally bestow the power to solemnize on “clergy,” referring to a category of persons that states define differently.  The most common definition of “clergy” or “minister” is an individual who has been ordained by a recognized religious body and has a congregation or following.

The very idea of something like the Universal Life Church is confounding to a traditional definition of clergy.  The ULC is a non-denominational church that was founded in Modesto, California in 1962 and claims to have ordained more than 20 million ministers.  The ULC joins together ministers who “come from all walks of life and spiritual traditions”; their “common thread” is “adherence to the universal doctrine of religious freedom: Do only that which is right.”  There is no set doctrine for ministers to accept, nor is there a mandate that ministers must believe in God.  The ULC advocates “religious freedom,” and the pursuit of “spiritual beliefs without interference from any outside agency, including government or church authority.” Ordination is free and is accomplished in seconds through a click on the website.  The click is followed by online approval and the offer to buy everything from laminated credentials to a special clergy-parking placard.

In several cases, spouses have argued that their marriages were invalid because the wedding was solemnized by a ULC minister (or other minister ordained online).  The legal validity (or lack thereof) of marriages officiated by ULC ministers, or other similar churches, varies by jurisdiction.  In Mississippi, the state’s highest court has ruled that ULC marriages are valid because the church is “enough of a religious body,” and one of its ministers is “enough of a spiritual leader.”  The Virginia Supreme Court, however, held that the authority of a group of ULC ministers was rightfully rescinded because they did not meet the state law definition of clergy.

A Trilogy of New York Cases on ULC Ministers: ULC Marriages are Invalid

The first challenge to the validity of a ULC-solemnized marriage took place in New York in 1972.  In that case, Ravenal v. Ravenal, Richard Ravenal sought an annulment of his marriage to Cathy on the grounds that the ULC minister who presided over their wedding did not have the authority to solemnize marriages under New York law.  The minister was a guitar-playing folk-singer, as well as a member, along with the parties, of an “encounter group.”

New York’s Domestic Relations Code provides that valid marriages may be solemnized by a “clergyman or minister of any religion.” The statute borrows the definition of clergyman from another provision of the code, which defines “church” to include both incorporated and unincorporated churches—the latter as a “congregation or society, or other assemblage of persons who are accustomed to statedly meet for divine worship or other religious observances. . . .”

A “clergyman” or “minister” is defined by the Religious Corporations Law to include “a duly authorized pastor, rector, priest, rabbi, and a person having authority from, or in accordance with, the rules and regulations of the governing ecclesiastical body of the denomination or order, if any, to which the church belongs, or otherwise from the church or synagogue to preside over and direct the spiritual affairs of the church or synagogue.”

The trial court in Ravenal concluded that the minister who presided over the marriage did not have the power to do so.  It looked to prior cases, which had established that the guarantee of free exercise of religion includes the “right to have one’s marriage solemnized by a minister of one’s own faith,” and that a minister need not necessarily be “ordained,” as long as he or she is “recognized by his church and congregation as a minister.”  Yet, the court held that a ULC minister does not meet the standard because it was not sure whether the ULC was a “religious denomination,” given the lack of any doctrine or standard set of beliefs.  The court also found no record of the church’s physical or corporate existence in New York.

The ease with which anyone could become a minister—and the sheer number of people who had achieved that status—cast doubt on the validity of the religion.  The court concluded that the ULC was “entirely nonecclesiastical and nondenominational.”  And, it held, the Ravenals’ officiant—whose authority, the court commented, “rests solely on his having obtained in the mail the card entitled “Credentials of Ministry”—did not qualify as a “clergyman,” particularly given the “absence of an actual church or stated meeting place for worship or any form of religious observance, presided over or directed by a person regarded by such a group as its minister.”

The question of the validity of ULC-solemnized marriages arose again twelve years later. In 1989, a group of ULC-ordained ministers sued the New York City clerk’s office for refusing to register them as officiants qualified to perform marriages.  (New York City is unusual in requiring officiants to register in advance, and, at the time this case was brought, it refused to register ULC ministers.  It has since changed its policy.)  The ministers lost their case.  In Rubino v. City of New York, a trial court in New York County found no violation of the First Amendment’s free exercise of religion clause in the clerk’s policy.  Beliefs, not conduct, are absolutely protected, and there is no free exercise right to perform marriages.  Nor is there anything in the constitution requiring the state to give effect to religious acts (i.e., by recognizing a marriage solemnized by a religious official).  Moreover, the city clerk’s office’s policy was not arbitrary, given the very real possibility that ULC marriages might be declared invalid by courts.  The government had a strong interest in protecting the validity of marriage and in protecting individuals from “the possibility that those marriages might be declared invalid or annulled” because of the officiant’s religious credentials.

The third case in the New York trilogy came from an appellate court.  In Ranieri v. Ranieri (1989), the court held that a marriage solemnized by a ULC minister was void.  The couple had signed two prenuptial agreements that would be nullified if the marriage never validly existed (which is the effect of a decree of annulment).  Relying on the two trial court opinions in New York, as well as opinions from the highest courts in North Carolina and Virginia, the appellate court held that, under New York’s relatively restrictive definition of church and clergyperson, a ULC minister was not authorized to perform weddings.

The Recent Ruling in Oswald v. Oswald: A Different Tack

In this case, as in Ranieri, the enforceability of a prenuptial agreement turned on the validity of the underlying marriage.  The trial court followed the earlier precedents and held the marriage invalid because it was solemnized by a ULC minister.  The appellate court, however, from a different “department” (jurisdiction) than the Ranieri appellate court, reversed the grant of summary judgment.  It did not definitively rule that the marriage is valid, but it held that the husband had not carried his burden at the summary judgment stage of proving that it was invalid without further factfinding.  On remand, the trial court could again find the marriage void—or valid.  But in the course of the ruling, the appellate court made clear that it was departing from the analysis and reasoning of the earlier cases.

First, the court noted correctly that it was not bound by an appellate court ruling from a sister department. It could thus disagree with the reasoning in Ranieri, a dispute that the state’s highest court could (and should) resolve.

Second, it found the plaintiff’s development of the factual record lacking.  At the summary judgment stage, a party must prove that there are no triable issues of fact, and that the legal issues can be fully resolved on the pre-trial record.  But here, the court found, the husband had failed to show that the ULC was the same organization it was almost twenty-five years earlier when the decision in Ranieri ruled it was not enough of a church to qualify under the New York statutory definition.  Open questions, in the court’s view, are whether the ULC has an “actual church or stated place of worship.”  The plaintiff alleged “upon information and belief” that it does not, but the court wanted more information.  The wife submitted an affidavit from the ULC swearing that it had “numerous places of worship throughout New York State,” and ULC’s website claims that “the communication and fellowship of our ministers is equal to the once a week sacramonious [sic] fellowship in some of our most segregated and elitist churches.”

Third, while the Oswald court pitched much of its opinion as dissatisfaction with the development of the factual record, it clearly disagrees on the merits with the rulings in the earlier cases.  It wrote, for example, that courts can rely only on the “application of neutral principles of law,” which, in this context, means it cannot “question the ULC’s membership requirements or the method by which it selects its ministers.”  A court can do no more than “determin[e] whether the ULC adhered to its own rules and regulations in selecting and ordaining the officiant as a minister.”

Moreover, it rejected the husband’s suggestion that the ULC could not qualify as a church under New York law because it professes no beliefs.  The court suggested that a court has no power to assess a church on this basis, beyond perhaps a determination that its self-characterization is made in good faith.  This raises the larger question whether the legislature should, when delegating authority to conduct a civil act to religious officials, have standards at all.  Is it the government’s place to decide who or what qualifies as a religion, a church, or a minister?

But the Oswald court then takes its analysis another step, into territory that is no better supported by the factual record than the plaintiff’s assertions are:

In some respects, the ULC conducts itself like more conventional churches and encompasses many of the same ideas and values that are present in traditional religions.  The ULC ordains ministers and, although ministers are not required to preside over a specific congregation or work within a physical church, the ULC encourages that practice.  Additionally, since the ULC’s formation in 1959, it has consistently advanced and advocated for its beliefs.

Conclusion

This recent ruling checkers the landscape on ULC marriages in New York, but, given the three cases finding them invalid, they are still legally questionable.  The Oswald court raises valid questions, but does not deal with the core problem that led to the three earlier rulings: the New York legislature has imposed a definition of church and clergy that the ULC does not seem to meet.

While the New York Court of Appeals (the state’s highest court) might weigh in this issue given the appellate split, the real remedy, if one is to be had, should come from the legislature.  The state treads on dangerous ground when it tries to pick and choose among “religions” or “religious officials” on the basis of their religiosity.

Without changing the general definition for other purposes, the legislature could expand the definition of officiants authorized to perform marriages.  It might do well to follow the model of some states, which allow laypersons to become a “minister for a day” for purposes of performing a wedding ceremony.  Given that civil marriage has no religious implications, there is no particular reason why the legislature should prefer clergy over other competent adults who can be trusted to follow the rules and fill out the paperwork.

Tennessee Attorney General Bob Cooper has called the state’s pending “ag gag” bill “constitutionally suspect,” and for good reason, as I will explain.

The bill, if passed into law, would require anyone who intentionally records images of animal abuse to submit their unedited footage or photos to law enforcement within 48 hours.

Cooper’s opinion, which was requested by Nashville Rep. Mike Stewart, may well influence Governor Bill Haslam (R)’s decision on whether to veto and/or refuse to sign the bill.  Let’s hope that after Cooper’s identification of the numerous constitutional problems with the bill as it now stands, it will be allow to fade away, as it should.

In my April 15th column here on Justia’s Verdict, I opposed ag-gag laws in general, for a number of reasons.  In this column, I’ll focus on the Tennessee ag-gag bill, in particular, which I also oppose.

The Tennessee ag-gag bill is simple and easy to understand: It requires anyone who intentionally records evidence of livestock or other animal abuse to turn over all the photographs and/or videos that he or she has taken to “law enforcement authorities” promptly—with promptly here meaning, as the bill specifies, within 48 hours, unless the evidence is collected on a weekend.

Those who flout the law are deemed to have committed a misdemeanor offense, and must pay a $500 fine.  Although “other animal abuse” is mentioned in the bill—perhaps to convince voters that this bill might protect their pets—this is really just another measure attempting to ensure that consumers do not learn what really goes on in the ugly slaughterhouses that provide their food.

More than 15,000 people have called or emailed the Governor about the bill, almost all of them urging that he veto it. And celebrity animal lovers such as Priscilla Presley and Carrie Underwood have raised the profile of the movement by joining the anti-ag-gag forces. (Although the Governor has said he won’t be swayed by celebrities’ opinions, some of his constituents surely will, and thus the Governor would be very ill-advised to ignore the celebrities’ views.)

In this column, I’ll comment on Attorney General Cooper’s well-placed qualms about the Tennessee ag-gag law, as he reported them to the Governor.

The Bill Is Underexclusive, and Therefore Discriminatory

To begin, Attorney General Cooper expressed the concern that the proposed legislation is so underinclusive that it “creates an issue about whether the government is disfavoring particular persons.” (Here, Cooper seems to be implicitly referring to animal-rights whistleblowers as the “particular persons” at hand.)

This group is clearly singled out. The proposed legislation, for example, reaches all those who record the abuse of livestock, but not, for example, all those who trespass, or take a job, simply in order to procure other types of damning recordings.  Why shouldn’t the proposed law extend to any whistleblower with a camera? There is no good answer.

Of course, all laws are underinclusive in some ways—and often in many ways. No law can address every topic, scenario, or far-flung hypothetical that falls within its scope. Accordingly, a law must be substantially underinclusive in order to be struck down by a court for that reason. But the Tennessee bill is, indeed, substantially underinclusive.

What would the bill look like if it were not so underinclusive?  It might look more like the approach that Tennessee takes when the abuse in question is inflicted on children, another potentially helpless group, rather than animals.  Tennessee’s child-abuse law requires the reporting of any information on child abuse. That law is very specific about what officials should be notified, and it grants confidentiality to those who are reporting abuse, in order to ensure that fear does not get in the way of justice.

If the animal-abuse laws were the same as the child-abuse laws, they would see animal rights activists as protectors, not violators.  Those who documented credible information of animal abuse would be treated as brave witnesses and legitimate private enforcers of the law, and not as criminals, as is too often the case now, across America.

The Bill Imposes a Prior Restraint on Speech

Attorney General Cooper also commented that the requirement that “any” recordings of livestock abuse must be turned over could be interpreted to mean “all” recordings, thus preventing the person who creates the covert video—and/or news media organizations—from subsequently publishing or otherwise using recordings.

On that interpretation, the bill very clearly violates the First Amendment.  The rule in America is that a speaker can first speak, or capture images, or write, and then pay the consequences if a court later determines that what was said was defamatory, or that images that were captured constituted a privacy or other violation.

The Bill Restricts Newsgathering

Attorney General Cooper also argued that the bill could be seen as a restriction on “newsgathering,” which some courts have held to be a necessary part of freedom of the press and free expression—and rightly so, since news obviously can’t be disseminated until it has been gathered.

Just a few decades ago, the idea that activists without press credentials or training could mount their own undercover investigations, and then claim First Amendment protection for the results, would have seemed dubious at best.  In the age of blogging, however, that idea is part of our daily reality. We are all the press, now.

The Bill Raises Extremely Troubling Fifth Amendment Self-Incrimination Issues

Finally, and perhaps most seriously of all, the Tennessee bill’s requirement that the images the activists procure must be turned over to the authorities could—in some situations—amount to the person who made the covert recordings’ revealing that he or she had engaged in illegal activity, such as trespassing, and thus would effectively violate the individual’s right against self-incrimination under the Fifth Amendment.

This last and most blatant problem with the bill, especially, shows that it was written with no respect for our Constitution at all. There’s only one appropriate response for a bill so callous toward animals, protesters, and the First and Fifth Amendments alike:  Veto it.

In my column today, I analyze an interesting case that a state Supreme Court will soon decide that illustrates, and has implications for, important national questions concerning the Establishment and Free Exercise clauses of the First Amendment.  In particular, the Kentucky case, Kant v. Lexington Theological Seminary, demonstrates the need for the U.S. Supreme Court to answer many of the key questions it left open in last year’s blockbuster ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, where the Court recognized a so-called “ministerial exception” enjoyed by religious institutions in employment discrimination suits.  I begin by providing background on the 2012 Hosanna-Tabor ruling, and then explain how the Kentucky courts thus far have understood and extended that ruling in the Kant dispute.

The Supreme Court’s Recognition of a “Ministerial Exception” to Employment Discrimination Law

The plaintiff in the Hosanna-Tabor case, Cheryl Perich, was a commissioned minister in the Lutheran Church-Missouri Synod who worked as a faculty member at a small church-operated K-8 parochial school in Michigan, where she taught, at various times, among other things, math, language arts, social science, gym, art and music.  She also taught a religion class four days a week; led students in daily devotional exercises and prayers; and led a school-wide chapel service a few times a year.  She later developed narcolepsy and informed her employer about her condition and, ultimately, her intention to assert her legal rights under the disability laws.  She was ultimately fired, and brought a charge with the federal Equal Employment Opportunity Commission (EEOC) against Hosanna-Tabor, claiming that she had been terminated in violation of the Americans with Disabilities Act (ADA).  The EEOC then filed suit against Hosanna-Tabor, alleging that it had unlawfully fired Ms. Perich in retaliation for her assertion of her ADA rights.

The U.S. Supreme Court ruled in favor of the school, holding that the Establishment and Free Exercise Clauses of the First Amendment bar employment discrimination suits brought on behalf of ministers against their (employer) churches, and that Ms. Perich fit the definition of “minister” for these purposes.  The Court began with a brief history of the Constitution’s religion clauses that highlighted the need for government not to interfere with important internal church processes.  It then discussed cases in which the Court had, under the Constitution, deferred to church tribunals that were established within a church’s hierarchy to resolve disputes over the proper use of church property or assets when disagreements between various individuals or factions within the church arose.   The resolution of these “quintessentially religious controversies,” the Court reminded, is “strictly a matter of ecclesiastical government” that is committed to “the highest ecclesiastical tribunals” and not something for the courts to undertake.  Relying on these principles and on the experience of lower courts in this realm, the Justices unanimously (albeit in three separate opinions) concluded that the First Amendment compels a “ministerial exception” to employment antidiscrimination laws that precludes the application of these laws to claims concerning the employment relationship between religious institutions and their ministers.

The Kant Lawsuit

The Kentucky case now pending was filed by Laurence Kant, who was formerly employed as a tenured faculty member at the Lexington Theological Seminary (LTS).  LTS is affiliated with the Disciples of Christ Christian denomination.  The dominant (but perhaps not sole) purpose of LTS, reiterated at the beginning of its Faculty Handbook, “is to prepare faithful leaders for the church of Jesus Christ and, thus, to strengthen the church’s participation in God’s mission for the world.”  All of the Seminary’s degree programs are faith-based, and are designed to prepare graduates for Christian ministry.

Mr. Kant is not a Christian minister; he is not even a Christian.  He is of the Jewish faith and during all relevant times he maintained his Jewish religious beliefs.  While at LTS, he taught a range of courses focusing on, among other areas, biblical studies, Jewish studies, Jewish-Christian studies, world religions, biblical languages, and religion and culture.  In 2006, he was awarded tenure.  The LTS Faculty Handbook (mentioned above) described tenure in the following terms:  “Tenure . . . means appointment to serve until retirement, resignation or dismissal for adequate cause. . . [T]he only grounds for dismissal or a tenured faculty member are moral delinquency, unambiguous failure to perform the responsibilities outlined in this Handbook, or conduct detrimental to the Seminary. . . Along with tenure, however, go the responsibilities specified in the Handbook as well as an added expectation of leadership in the faculty.”

In 2009, after the nation’s financial crisis hit LTS’s endowment hard, LTS declared a financial emergency and announced its intention to take dramatic steps, including the elimination of the tenure of its faculty along with other cost-cutting measures, designed to keep the institution solvent.  Pursuant to this plan, LTS terminated Kant’s employment in 2009.

Mr. Kant then sued in state court, alleging breach of the contractual promises in the Faculty Handbook that his employment could be terminated only for specified reasons, none of which was present here.  By a 2-1 vote, the Kentucky Court of Appeals (and the case is now pending in the Kentucky Supreme Court, which accepted Mr. Kant’s request for review) rejected Kant’s lawsuit on two separate but related grounds.  First, the court held that the case “involved an ecclesiastical matter” that foreclosed the exercise of jurisdiction by a civil court.  Second, the court ruled that LTS enjoyed immunity from the breach of contract claims under the ministerial exception doctrine recognized in Hosanna-Tabor.  (Although one of the two members of the majority wrote a separate concurrence some of which could be read as relying only on the ministerial exception, he did observe that the main opinion “becomes the majority with my concurrence” and also commented in his opinion that LTS’s restructuring “is an ecclesiastical matter over which no civil court has subject matter jurisdiction.”  Thus, the majority opinion is best understood as having relied on both grounds.)

In both respects, the Kentucky court’s ruling goes significantly beyond the Supreme Court’s ruling in Hosanna-Tabor, and highlights the need for the Supreme Court to provide additional guidance in this area.

The “Ecclesiastical Matters” Rule Barring Judicial Resolution

Let us first consider the Kentucky court’s decision that it could not weigh in on Kant’s contract claims because to do so would impermissibly draw it into resolving ecclesiastical matters.  The majority opinion says “Kant’s claims . . . cannot be decided without interpreting the Faculty Handbook to determine whether it allows for restructuring of LTS under a financial emergency and for eliminating tenured faculty under those circumstances.  Indeed, an inquiry into the rationale for LTS’s decision making as to who will teach its students—all of whom attend there with a desire to become pastors or ministers—would be an inquiry into an ecclesiastical matter by this Court.”

This seems like a non sequitur to me.  The first sentence is undeniably correct; Kant’s breach of contract claims require interpreting the promises—and the limits on those promises—made in the Faculty Handbook; the handbook is the contract on which Mr. Kant relies.  But the second sentence would not seem to follow; deciding whether the Faculty Handbook contract implicitly contains a right of LTS to eliminate tenure in times of financial emergency does not involve religious doctrinal or ecclesiastical matters in any way.  If LTS had fired Kant because it said that he had engaged in religiously immoral behavior within the meaning of the Faculty Handbook, deciding whether certain deeds were morally delinquent (within the context of the church community) might draw courts into ecclesiastical matters.  But deciding whether a contract has an exception for financial emergency does not.

To see this, imagine that Kant had taught physical education, rather than religious studies.  And imagine that the Faculty Handbook promised that tenured members of the faculty would be entitled to use the Seminary’s gymnasium after school hours for free.  If the Seminary later tried to begin charging tenured faculty for use of the gym (because of financial exigencies), would anyone argue that a breach of contract claim relying on the Handbook would implicate ecclesiastical matters?

Or imagine a contract that was entered into not with an LTS employee, but rather with an outside provider of services.  Let us suppose LTS hires a roofer to put on a new roof.  The contract states:  “In order to promote the use of the LTS facility as a continuing Seminary, Roofer X shall put on a roof suitable for educational structures for which LTS will pay him $Y.”  Now imagine further that the roofer puts on a new roof, and LTS, because it is at that time in some financial difficulty, refuses to pay the roofer (so that it will have money to buy new books for its library instead).  If the roofer then sues on the contract, we could not say that interpreting the contract and inquiring into whether the reason LTS has not paid—the desire to spend the money on other religious-instruction-related programs—is permitted under the contract as an excuse for non-payment draws a court into ecclesiastical matters, even though such a contract claim would involve an inquiry into “the rationale for LTS’ decisionmaking” as to how to devote its resources.  Certainly the ecclesiastical-matters barrier to adjudication cannot mean that religious institutions can never be sued for breach of contract, and just because the contract with Kant involves faculty personnel does not mean that interpreting it involves ecclesiastical matters.  To the extent that the Supreme Court’s invocation of ecclesiastical deference in Hosanna-Tabor and other cases has been misunderstood, clarification by the high Court will be helpful.

The “Ministerial Exception”

This point leads us nicely into the ministerial exception topic, because it may well be that what troubled the Kentucky Court of Appeals most was not the ecclesiastical nature of the contract, but rather the ministerial nature of the party suing—Kant.  And there are aspects of this case that make it a more attractive candidate for application of the ministerial exception than was Hosanna-Tabor.  In particular, the fact that Kant taught at a wholly sectarian Seminary—as contrasted with the parochial school in Hosanna-Tabor, a place designed not for religious ordination but rather for a general, if religiously-based, education—leans in LTS’s favor.

Yet there are a number of other differences between the two cases that cut against the application of the ministerial exception in Kant.

First, Hosanna-Tabor involved an exception to anti-discrimination laws.  The Court there explicitly “express[ed] no view on whether the exception bars other types of suits, including . . . breach of contract” [claims].  There will be enough time to address the applicability of the exception to other circumstances if and when they arise.”  The Kant court acknowledged this caveat in Hosanna-Tabor, but nonetheless—and without any analysis or explanation other than the mention of the fact that some lower federal courts had applied the ministerial exception to contract claims—simply extends the exception.  Maybe it makes sense to apply the ministerial exception outside of the context of anti-discrimination laws, but certainly some discussion of why this is so—and how far the exception should reach—is in order.

Second, and very important, the Kant court found that Mr. Kant fell within the ministerial exception because of the religious-instruction function that he performed within LTS—”teaching students who desired to become involved in Christian ministry.”   As the court noted, “[b]ecause Kant’s primary duties involved teaching religious-themed courses at a seminary,” he is covered by the exception.  This seems far too quick.  For starters, as the dissent points out, there is a difference between teaching religion (when one is trying to convince students to accept certain religious beliefs, or at least reinforce those beliefs), and teaching about religion, which is an academic exercise in ideas, not an attempt to inculcate particular spiritual beliefs.  And on the record in this case, Mr. Kant may very well have been doing the latter.

More generally, and perhaps more fundamentally, there is a divergence between the Kant court’s approach and that of the Supreme Court majority in Hosanna-Tabor on the question of how we decide whether someone is a minister for these purposes.  In Hosanna-Tabor, the Court eschewed any rigid formula, but it did stress not just the function of a particular employee, but also the status and title that that employee enjoyed and used.  Indeed, in Hosanna-Tabor, the Court identified four reasons why Ms. Perich should be considered a minister: (1) the “formal title” of minister was given to her by the church when she was commissioned; (2) as a prerequisite to that commission, she undertook religious training and education designed to demonstrate her faith and her ability to minister; (3) she used the title herself and held herself out as a minister and a believer; and (4) she undertook certain “functions . . .  performed for the Church.”  Three of the four factors (the first three) focus on title and status, rather than function.  Indeed, the Court in Hosanna-Tabor chided the United States Court of Appeals for the Sixth Circuit (the lower court in the case) for failing “to see any relevance in the fact that Perich was a commissioned minister.”   As the Court observed, “the fact that an employee has been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of an employee’s position.”  And yet the Kant court all but ignored the fact that Mr. Kant is not—and could not be, since he is openly Jewish—considered a minister within the Disciples of Christ church.  He professed no belief in, and was not commissioned under, any Christian faith.  Neither he, nor the church, would consider him a minister for any purpose other than a legal immunity from suit.

It is true that Justice Alito (joined by Justice Kagan) wrote separately in Hosanna-Tabor to make clear their views that function—and not just titles or status—should matter in deciding who is a minister.  But they seemed to be writing particularly about religions that don’t use commissions or ordinations or titles of ministers; thus, their opinion needn’t be read to say that, for religions that do use such titles, the status of a particular employee should not be an important factor.  Moreover, the fact that Justices Alito and Kagan felt they had to write separately serves to underscore how important status/title was in the analysis of the majority opinion, which six Justices signed onto without elaboration or reservation.  In any event, whether one feels the Kant ruling is an overly expansive application of the ministerial exception or not, the larger point is that before too long, the Supreme Court is going to need to step back in and clarify precisely how broadly, and to whom, the exception applies.

The arguments from Prop 8’s proponents, though predictable, were still almost humorous in their weakness.  When the case reached the Supreme Court last month, the lawyer who argued for “traditional marriage” tried to claim that gays should be denied the right to marry because the “purpose” of marriage is to enable human reproduction—and, because same-sex couples cannot reproduce, the lawyer argued, they cannot be allowed to marry.

Various justices on the Court were barely able to hide their mirth, when confronting this absurd claim.  Are we to deny the right to marry for opposite-sex couples who cannot have children because, say, they are too old to be fertile?  The lawyer’s answers became more and more difficult to take seriously.  Although we do not know how the Court will decide the Prop 8 case, we have certainly seen how difficult it was to make a serious argument that marriage is for straight people because only they can reproduce.

Even though the arguments against same-sex marriage were extraordinarily weak, at least it made sense that the lawyer on that side of the case would try to make them.  But how can we explain the sudden spectacle of a high-profile conservative commentator who, last week, invoked the supposed inability of gay people to have children—and then bizarrely offered that as a reason not to listen to economists who favor temporary increases in deficits, in order to fight the ongoing weakness of the U.S. and global economies?

The connection, it turns out, is based on the idea that John Maynard Keynes, the great economist from Cambridge University in England and the father of modern macroeconomics, was supposedly driven to ignore the well-being of future generations because he himself was childless.  And this claim, it turns out, was not some one-off foolish comment by one hapless conservative pundit.  In fact, the claim that Keynesians heartlessly harm future generations because Keynes himself was a homosexual and had no children (a rendition of history that itself ignores Keynes’s marriage to a woman, who miscarried) has been part of the ugly background of anti-Keynesian commentary for years.

This recent episode of epic stupidity, therefore, should not be a moment in which we focus merely on the comment itself.  Instead, it offers us an opportunity to explain why Keynesian economics—which, correctly applied, would have us increasing spending and cutting taxes today, so as finally to end the suffering of millions of people in the aftermath of the Great Recession—is the most pro-children, pro-future, pro-humanity economic philosophy ever devised.

The Sorry Details of the Recent Controversy: A Harvard History Professor Says Something Extremely Stupid, and Sort of Apologizes for It

Professor Niall Ferguson, of Harvard’s History Department, has over the last decade or so become a bit of a star commentator for right-wing audiences.  Though not an economist, he has taken to criticizing Keynes and Keynesians for their supposedly misguided policies.

As so often happens with academics who cross over into ideological hothouses, Ferguson soon threw off any pretense of making defensible arguments.  During last year’s electoral campaign, he penned a hysterical attack on President Obama that was so disconnected from reality that the magazine in which it was published was ultimately forced to retract the story and apologize—even though it had been the magazine’s cover story.

Ferguson, therefore, was hardly a disinterested academic with a pristine reputation, before he stuck his foot in his mouth last week.  At a gathering of financial professionals in California, Ferguson claimed that Keynes’s supposed homosexuality and childlessness explained his lack of concern for future generations.

This argument, of course, is of a piece with Republicans’ unrelenting claims that Keynesian policies “heap debt on the backs of our children and grandchildren.”  The idea must apparently be that Keynesians must all be gay and childless, because only those without genetic offspring could possibly be so heartless as to destroy the future prospects of other people’s children.

In a sign that times have changed for the better, however, Ferguson’s remarks were not well received—even by his otherwise sympathetic audience—and he quickly realized that he had made a very big mistake.  He soon issued an apology, calling his comments “as stupid as they were insensitive.”

Although this retraction is to be applauded, what Ferguson called his “unqualified apology” was not exactly as brave as it appeared.  He said that his stupid comments were part of “an off-the-cuff response that was not part of my presentation,” suggesting that somehow these fleeting and ill-formed thoughts had suddenly entered his head, without the opportunity for him to consider them more carefully before they exited from his mouth, and that with more consideration, he would have spoken more wisely, and would do so in the future.

Unfortunately, it has since turned out that Professor Ferguson has gone to this well before, including similar gay-bashing comments about Keynes made at least as far back as 1999—comments that Ferguson published in written form, not as part of some ill-considered rush of words while standing onstage with a microphone.  Ferguson, therefore, at least appears to be trying to rewrite his own history, claiming to have innocently blundered into a very unfortunate set of comments that he was very anxious to retract, as they did not reflect his true views.  The record, however, suggests otherwise.

The Right’s Ad Hominem Attacks on Keynes: Ugliness Is as Ugliness Does

Although Ferguson’s role in this recent drama is an important part of the story, what matters much more is that the logically irrelevant attacks on Keynes’s personal life have been part of the territory in right-wing circles for quite some time.  Whatever one thinks of Ferguson’s comments or the sincerity (or lack thereof) of his apology, therefore, we should not lose sight of the bigger picture: For decades, the forces of reaction have been combining their socially-retrograde attitudes with their economically-regressive policy positions, to the detriment of the well-being of all people—children and adults alike.

As part of the reaction to Ferguson last week, for example, some progressive commentators pointed out that other right-wing heroes have, over the decades, made sneering remarks about Keynes’s sexuality.  The first time I became aware of this tendency was in 1986, when a friend in graduate school told me about an incident at a conference of economists who were discussing Keynes’s most famous book: The General Theory of Employment, Interest, and Money.

That book had been published in 1936, and the 50th anniversary of its publication coincided with Harvard’s 350th anniversary celebration.  Because Harvard had been the most important American university through which Keynes’s ideas were brought to the attention of U.S. policymakers during the Great Depression, it made sense that Harvard’s Economics Department would commemorate Keynes’s most important work.

As part of that discussion, however, one of the anti-Keynesian conservative economists on the panel began his remarks by noting that Keynes “had no children.”  He emphasized those words, my colleague told me later, with eyebrows arched and in a way that everyone in the room knew that he was really intending to remind everyone that Keynes had been gay.

To the credit of the other economists in the room, that clumsy attempt at gay bashing was met with derision.  For the remainder of the panel, every time anyone mentioned any other economist who was known to have been childless, someone would lean forward and say, “. . . who also had no children!”  Even in a much less enlightened time, therefore, the Keynes-as-gay card was not a surefire winner.

Sadly, as noted above, other politicians and commentators have continued trying to use this ugly strategy, leading to last week’s imbroglio.  The good news is that this high-profile embarrassment might finally put this hateful (and irrelevant) strategy to rest.

Who Cares Most About Future Generations?  The Keynesian Case for Building a Prosperous Future

The claim that a childless person—no matter what her or his sexual orientation might be—would somehow not care about the well-being of other human beings is obviously insane.  To take only one of many prominent examples, plenty of people take vows of chastity for religious or other reasons, and then dedicate their lives to the benefit of children.  And, sadly, plenty of people who do have children fail to care for them, and even actively harm or kill them.  There is clearly nothing about having children that necessarily makes a person more or less selfish about the future.

But what about Keynes’s most famous quote: “In the long run, we are all dead.”  Does that not betray a callous disregard for those who will come after we have all passed form the earth?  Hardly.

Keynes’s comment was made in response to the claim of his ideological opponents during the Great Depression that, if we were to wait long enough, the economy would eventually return to something approximating full employment.  Keynes was arguing against the idea that it was acceptable simply to wait for the economy to mend itself, while millions of people starved, lost their livelihoods, and saw their children’s lives destroyed.

Keynes was, therefore, saying that getting to the long run requires living through the present—not that we should not care about the long run because we will not be there to enjoy it.  Keynes was thus arguing that caring about others, today and in the future, involves not merely standing idly by while millions of people wonder whether they and their families will survive until next week, much less until the next generation.  It requires us to allow people to thrive, now and in the future.

This concern for others is especially notable because John Maynard Keynes, of all people, was well situated to ride out the Great Depression in comfort.  He was the son of a prominent Cambridge economist, and a successful financier in his own right.  He was part of the “Bloomsbury Group,” an influential salon of thinkers and artists who included E.M. Forster, Virginia Woolf, and Mary McCarthy.  After his younger days of sexual exploration, he fell in love with and married a ballerina.  His economics colleagues, moreover, strongly disapproved of his unorthodox views.  The easier, and surely tempting, route for Keynes would have been simply to stay silent and let others suffer.

Modern Keynesians, moreover, not only take seriously the idea that we need to worry about getting from the short run to the long run, but we also hold that getting to the best possible long run involves much more than actively fighting recessions and depressions.  For a modern Keynesian, it is crucially important to bring the economy quickly back to full employment, and it is also essential to engage in ongoing policies that will bequeath to future generations a more productive economy.  (This was also a serious concern for Keynes himself, but he was understandably preoccupied with fighting the ravages of the Great Depression.)

Indeed, another of Keynes’s frequently misunderstood and maligned arguments was designed precisely to expose the folly of anti-Keynesians’ arguments against government investment in the economy’s future prosperity.

Keynes started by noting that the best way to fight a recession would be to build for the future: improving the housing stock for all citizens, for example, and investing in the future growth of the economy.

But, Keynes acidly pointed out, the “captains of industry” hated this idea, because they did not want the government to do anything that was “bad for business.”  So Keynes offered a sarcastic compromise: Because the captains of industry uniformly approved of the wasteful activity of sending thousands of men into the wilderness to dig up money in the form of gold, the government could send out teams of workers to bury money in tubes, at which point good capitalists would have a profit-motivated reason to hire still other otherwise-idle workers to go dig up the tubes of money.

Keynes was all too aware, of course, that this would be a terrible waste of human talent and effort, because it would be far better to fight the Depression by putting people to work on projects with long-term benefits for generations yet to come.  But if the captains of industry insisted on waste, then at least Keynes’s proposal would give people the dignity of work—and the paychecks that the workers would receive (and spend on groceries, and so on) would make it more likely that the economy would finally recover, allowing families to move forward into a more prosperous future.

But what about all the debt that the government would be taking on?  The answer, of course, is that it is simply good management to take on debt, when the money is spent on projects that pay off in future economic dividends.

Borrowing money to spend on the rebuilding of our schools, on basic scientific research, on nutrition for disadvantaged children, on the infrastructure that will be necessary for future prosperity, and so on, will make future generations better off, not worse off.  As I sometimes tell my students, if my grandparents had borrowed money to buy shares in a prosperous company for me, the value of those shares would more than outweigh the debt that I would inherit.  Rather than burdening me with debt, they would have blessed me with it.

In the end, this is the most important lesson of the debate over what Keynes’s policies would do for future generations.  From the beginning of the Great Recession, the forces of reaction in the U.S. and Europe have fought tooth-and-nail to prevent Keynesian policies from being adopted.

Conservatives have denigrated the idea that government can ever invest in the future—ignoring the government’s role in the building of railroads in the 19th century, creating the breakthroughs that led to the Internet and every other technological advancement of the 20th century, the building of our great universities (public and private), and universal public education.  They convinced President Obama to scale down his stimulus program to the point that it was too small for the task, and they insisted that the program involve as little investment spending, and as much tax cuts for the wealthy, as possible.

Had the current followers of Keynes—that childless man, who had both heterosexual and homosexual relationships during his life—been listened to, unemployment would now be much lower, economic growth would be higher, and the prospects of young people would be far better than they are today.  Yes, there would be more government debt; but if our experience in the years after Keynes’s path-breaking contributions shows us anything, it is that we can have prosperity sufficient to shrink the debt as a share of the growing economy.

It is a tragedy that we have temporarily forgotten that lesson.  Maybe that will now change, and future generations of schoolchildren will learn that a stupid remark by a Harvard historian in 2013 helped to break us out of our self-defeating prejudices.  We can only hope.

Most of the remaining detainees at the Guantanamo Bay Naval Base prison have now joined a hunger strike.  This is not the first time Gitmo detainees have gone on a hunger strike, but the current strike has drawn more attention than past uses of the tactic did, both because it is so widespread and because of the plight of many of the detainees: they have been held for years and cleared for release, but the U.S. government will not allow them to settle here, and has been unable to find a country that will take them.

In response to the hunger strike, the prison has adopted a policy of forcibly feeding those detainees who are at greatest risk of starving themselves to death.  Human rights groups and medical authorities condemn such forced feeding as cruel, but the authorities reply that it is better than permitting the detainees to die.

Is the forced feeding of hunger strikers—typically through a tube inserted through the nose and then down into the stomach—legal?  Hunger strikes have been used for political causes for over a century: By suffragists in Britain and the United States in the early Twentieth Century; by Mahatma Gandhi for a variety of causes in the 1930s and 1940s; by jailed IRA activists in the early 1980s; and by individual prisoners and groups of prisoners protesting their conditions of confinement in the U.S. and elsewhere to this day.

Yet despite this long history of hunger strikes, U.S. law remains unclear on whether jailors may forcibly feed prisoners.  The U.S. Supreme Court has never directly addressed the issue and lower courts are divided on the question.

In this column, I consider the legality of forced feeding of Guantanamo Bay detainees.  Although I conclude that the policy probably will not be blocked by the courts, it is nonetheless deeply troubling.

A Right to Refuse Medical Treatment?

Under the law of every state in the United States, competent adults have the right to refuse medical treatment and that right has generally been construed to include a right to refuse food and water.  But the Guantanamo prison is run by the federal government, which is not subject to state laws.  It is subject to the Constitution, though, and in the 1990 case of Cruzan v. Dir., Missouri Dep’t of Health, the Supreme Court assumed that a competent adult does have the right to refuse food and water.  That case did not exactly decide the current issue, however, because it involved the disconnection of a feeding tube from a woman who was no longer competent and whose wishes were contested.

Still, five Justices in the Cruzan case did say that they thought that competent adults have the right to refuse forced feeding, even if death will result.  That looks like a solid legal foundation for the detainees who are resisting forced feeding.

But Cruzan is not the only relevant precedent.  Prisoners, and even pre-trial detainees who have not been found guilty of any offense, generally have fewer rights than persons at large.  In recognition that judges lack the relevant institutional expertise, they give considerable deference to prison and jail administrators, even when the contested policies infringe constitutional rights.

Thus, in another 1990 case—Washington v. Harper—the Supreme Court held that prison officials were entitled to override a prisoner’s objection to forcibly being administered medication, even without a determination that the prisoner was incompetent and thus unable to decide for himself.  The Court in Harper assumed that prison psychiatrists would only forcibly medicate a prisoner if doing so is in his medical interest.

Harper strongly suggests that prisoner and detainee claims against forced feeding would likely fail if brought before the Supreme Court.  After all, the medical case for forced feeding of at least some hunger strikers is stronger than the medical case for involuntary psychiatric medicine.  One might think that the prison doctors in Harper were simply interested in rendering prisoners docile, whereas there is little doubt that prisoners will eventually die if they fail to eat.  Although lower courts have sometimes held that prison officials may not forcibly feed a prisoner at the beginning of a hunger strike, Harper does appear to validate the current stated policy at Guantanamo Bay, whereby detainees are forcibly fed when they become dangerously weak.

Hunger Striking as Free Speech

Although the right against the forcible administration of medication may prove unavailing to the detainees, they have other possible arguments.  In domestic cases, prisoners have sometimes claimed protection for hunger strikes as a form of free speech.

Yet those cases typically fail.  Even though hunger strikers refuse to eat as a form of expressive conduct, the First Amendment does not protect otherwise proscribable conduct simply because someone engages in it to prove a point.

To be sure, if prisoners can successfully show that the authorities are forcibly feeding them in retaliation for their protest, they may be able to win their free speech claim.  But such a showing will be difficult to make.  When challenged, the Guantanamo Bay prison authorities cite concerns, such as prisoner health, that are unrelated to the ideas expressed by the hunger strikers.

Hunger Striking and Religious Freedom

Another potential avenue of attack may be freedom of religion.  The First Amendment is no more helpful to the detainees’ case with respect to religion than with respect to speech: So long as the government does not target hunger strikers because of their expressive or religious motive, the government may pursue its otherwise permissible objectives.

However, a federal statute, the Religious Freedom Restoration Act (RFRA) forbids the federal government from imposing excessive burdens on religious exercise, even if the burdens at issue are not specifically targeted at religion.  Although RFRA was held unconstitutional as applied to state and local governments in the 1997 case of City of Boerne v. Flores, it remains valid as applied to the federal government.

Nonetheless, the Guantanamo Bay detainees are unlikely to prevail under RFRA, for two reasons.  First, it is not at all clear that forcibly feeding hunger strikers burdens their religion at all.  True, the original impetus for the current hunger strike was the perception of the disrespectful treatment of a Koran, but it is difficult to show that requiring the detainees to eat would in any way violate their religious tenets.

Second, even if the detainees could claim that forced feeding burdens their religious practice under RFRA, the courts have applied RFRA in the prison context with the same deference to prison authorities that they have given those same authorities under the free exercise clause of the First Amendment.  Hence, a religious freedom claim appears likely to fail.

International Law

The detainees’ best argument may be that forced feeding violates international law, as argued in a 2006 report by the United Nation Commission on Human Rights.  That report cited three grounds for deeming the forced feeding of hunger-striking Guantanamo Bay prisoners illegal: First, it violates an international law principle of autonomy that is roughly parallel to the principle at stake in the Cruzan case; second, certain methods of forced feeding amount to torture; and third, the participation of doctors in forced feeding violates medical ethics and international law principles.

In public statements made both when the report was initially released and since, the U.S. government has defended forced feeding as a humane, and thus legal, alternative to permitting detainees to starve themselves.  At the very least, there appears to be a genuine division of opinion over whether international law forbids the forced feeding of hunger-striking prisoners.

In these circumstances, it is highly unlikely that the U.S. courts would grant relief based on international law.  None of the relevant international treaties forbids forced feeding expressly, and even if one did, the Roberts Court would likely find that the treaty language is not self-executing—that is, the Court would likely find that the treaty language requires implementing legislation, which Congress has not enacted.  Meanwhile, it appears even less likely that the U.S. courts would find that customary international law gives rise to a judicially enforceable right against forced feeding.

Special Limits on Litigation by Alien Enemy Combatants

Indeed, most of the Guantanamo Bay detainees may find that they cannot litigate any claims challenging forced feeding.  A Bush-era statute both forbids detainees from bringing claims based on the Geneva Conventions, and strips the civilian courts of all jurisdiction to entertain any challenge to “any aspect of the . . . treatment . . . or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”

Although that statute was the basis for the dismissal of a suit challenging the forced feeding of hunger strikers in the 2009 district court ruling in Al-Adahi v. Obama, the last statutory qualifier does appear to open a small loophole: Some of the detainees now hunger-striking have been determined not to be enemy combatants but continue to be held anyway because of the government’s inability to find a place to send them, as I noted above.  These detainees would appear to fall outside of the statutory exclusion, and thus could bring a civilian lawsuit contesting the conditions of their confinement.

Even then, such plaintiffs would face two very substantial obstacles were they to go to court.  First, as we have seen above, the available legal claims seem likely to fail on the merits.

Second, even though the cleared detainees would not be barred from suing by the statutory language quoted above, they would still need to demonstrate that they had a right to sue.  Yet, as I explained in a column last year, the current Supreme Court has been closing the door to civil rights litigation in recent years.  The days are long gone when anyone with a colorable claim that his civil rights had been violated could at least expect his day in court.

The Larger Detention Problem

Hence, the Obama Administration’s lawyers appear to have done their homework.  The odds that the forced-feeding policy will be struck down are slim.

Insulation from judicial review is not vindication, however.  The Administration faces a true dilemma in the detainee hunger strike.  Either course—permitting the detainees to starve, or forcibly feeding them—is a humanitarian and a public relations disaster.

President Obama recently revived his goal of closing the Guantanamo Bay prison, which is laudable but not sufficient to address the underlying problem.  Merely relocating Guantanamo’s prisoners to some other location would change little.

As my fellow Verdict columnist John Dean noted in a recent column describing the Constitution Project report on American detention policy since 9/11, that policy has been deeply flawed from the outset.  In particular, the relevant portion of the report tends to confirm that military officials at Guantanamo Bay have used excessive force against hunger strikers.

President Obama’s foreign policy has been slowly unwinding the Bush Administration’s misadventures in Iraq and Afghanistan.  The time is long overdue to completely rethink detention policy as well.

The most popular multilevel marketing (“MLM”) companies and brands have attained near-cultural icon status: Amway, Herbalife, Mary Kay, and Shaklee.  Many Americans are familiar with these brands, as well as some of the lesser-known variations that might have been introduced by an overzealous acquaintance, through an infomercial, or via the Internet.  The popularity of the multilevel marketing method is no fluke; direct sales can be a profitable business model.  However, caution is warranted for prospective market entrants, for there is a network of state and federal laws and regulations that must be navigated in order to ensure that a given multilevel-marketing operation is not deemed to be an illegal pyramid scheme.

Pyramid Denial

There is a fine line between a legitimate MLM business and an illegal pyramid scheme.  To illustrate, both offer participants the opportunity to earn commissions, and both often require new members to make an initial investment.  Among other factors, the fundamental differences between the two business methods come down to the amount of the initial investment that is required by the participant, the means by which the constituent products or services are sold, and the basis on which commissions are earned.

While the distinctions between the two business methods can seem relatively minor, the degree of contrast between them may prevent program operators from becoming the subject of a regulatory proceeding, or becoming defendants in litigation.

The Rules of the Road Regarding MLMs

Existing standards and restrictions on MLMs have evolved through developing case law and statutory requirements, on both the federal and state levels.

State by State

Every state has adopted laws that, in one way or another, regulate MLM entities and prohibit pyramid schemes.  However, the method of regulation varies.  Some states have enacted specific anti-pyramid statutes. Others merely require registration under specific MLM statutes. And others regulate MLMs by way of lottery, consumer-protection and/or anti-fraud statutes.

Several states have MLM registration requirements, and some go so far as to require that the MLM obtain a surety bond prior to opening their plan up to participation, while others are less demanding.  By way of example, Wyoming simply requires that the MLM file a Notice of Intent to Conduct Business.  In contrast, Texas requires that the MLM file, in addition to other items (1) a financial statement; (2) a complete description of the program participant-compensation structure; (3) disclosure of all persons with a 20% or greater ownership interest in the MLM; and (4) copies of all program promotional materials.  At a minimum, the states that require MLM filings generally require that the MLM appoint the Secretary of State as its agent for service of process.

Federal Regulations

On the federal level, regulation has largely come through actions initiated by the Federal Trade Commission (FTC), Securities and Exchange Commission (SEC) and U.S. Postal Service.  The seminal FTC MLM decisions are In re Koscot Interplanetary, Inc., 86 F.T.C. 1106 (1975), and In re Amway Corp., 93 F.T.C. 618 (1979).  In both of these cases, the FTC sought to identify and distinguish the characteristics of a legitimate MLM from those of an illegal pyramid scheme.

Separating MLMs From Pyramid Schemes

Pyramid schemes are characterized by the requirement that participants pay money in return for two things: (1) the right to sell a product or service; and (2) the right to receive, in return for recruiting other participants into the program, rewards that are unrelated to the sale of applicable products or services to ultimate retail customers.  In other words, pyramid schemes predominantly compensate participants, either directly or indirectly, for the recruitment and enrollment of other participants.

Two red flags that regulatory agencies often look for in ascertaining whether an illegal pyramid scheme exists are: (1) “inventory loading,” in which a company’s incentive program forces recruits to buy more products than they could ever sell, often at inflated prices; and (2) a lack of retail sales, so that sales only (or primarily) occur between people in the applicable marketing venture or to new recruits, not to consumers in the general public.

In contrast to an illegal pyramid scheme, a legitimate MLM has a real, marketable product or service to sell –one that is sold to the general public without requiring consumers to pay an additional fee to join the MLM program.  MLMs may pay commissions to a long string of distributors, but these commissions should be paid for actual retail sales, not for obtaining new recruits.

Initially, a two-pronged analysis is helpful in determining whether a given marketing plan could be considered to be an illegal pyramid scheme.  First, determine whether the subject plan, as written, appears to compensate participants merely for recruitment, or instead, to compensate them for the retail sale of goods or services to end consumers.  If the program compensates participants solely for sales to retail consumers, it will pass the first prong of the test.

The second prong of the test involves an operational analysis to determine what type of activity the plan induces; specifically, this second prong asks, “What do distributors spend their time doing?”  It is often more difficult to reach a definitive conclusion with respect to this prong of the analysis, than with respect to the first.  Several different factors may contribute to the determination of whether the second prong’s test is fulfilled, but the basic question is, “What does the plan emphasize?”  If the plan emphasizes recruitment, even though distributors do make retail sales, it may be found to be an illegal pyramid scheme.  Incorporating the safeguards that are set forth in the following paragraphs will help your program pass the second prong of this analysis.

Safeguards

In addition to distinguishing a legitimate MLM program from an illegal pyramid scheme, the FTC’s decision in Amway also sets forth several “safeguards” that should be incorporated when endeavoring to establish and operate legitimate MLMs:

1. There should be no entry or “headhunting” fees;
2. There should be no large inventory purchase requirements;
3. The venture should adhere to the “70% Rule,” whereby each distributor should be required to sell, at wholesale or retail, at least 70% of its purchased inventory each month;
4. The venture should adhere to the “10 Customer Rule,” whereby each sponsoring distributor should be required to make at least one retail sale to each of 10 different customers each month;
5. Inventory Buy Back: Distributors should be required to buy back any unused and marketable products from their recruits upon request. Legitimate MLMs should have a 60-day, 100% money-back guarantee.  After 60 days, the MLM should accept returned inventory (unless perishable or seasonal) with a 10% restocking fee.  This helps to mitigate against a charge of inventory loading; and
6. Legitimate MLMs should not falsely represent, expressly or by implication, the amount of earnings or income that can be, or which are likely to be, derived from participation in the applicable MLM.

Further, pursuant to statutory guidelines and existing case law, MLMs must disclose the following:

1. The number and percentage of current participants who have not received any commissions, bonuses or overrides;
2. The median amount of commissions, bonuses and overrides received by all participants, together with the percentage of participants that have received less and those that have received more;
3. The average amount of commissions, bonuses and overrides that have been received by all participants; and
4. For each level and rank within the plan, the number and percentage of current participants that have reached that level or rank, and the average length of time it took to reach that level.

Practice Makes Perfect

It is important to note that even if your written MLM policies comply with all applicable federal and state guidelines, it is the actual, ongoing conduct and performance of the MLM within its program structure that truly matters.  If, despite its written policies, the program sponsor operates the business in a way that is closer to that of an illegal pyramid scheme than that of a legitimate MLM, regulatory agencies are more likely to view the plan as an illegal pyramid scheme.

While the regulations applicable to multilevel marketing are complex and nuanced, with the proper planning and knowledgeable legal guidance, these marketing methods can be lucrative and efficient.

Please note that this is only a brief overview of some of the legal issues that you will be faced with when preparing to launch an MLM program.  Remember to obtain guidance from experienced counsel prior to embarking on such an undertaking.