The Odd Clauses (22 page)

As it turned out, Philips was captured in the fall, but Attorney General Edmund Randolph decided to forgo the attainder law and try him in a court of law. Randolph didn't think he had the evidence to convict Philips of murder or arson, so he opted instead to try him and his gang of stealing (the evidence showed that they had taken twenty-eight hats and five pounds of twine). The jury found Philips guilty, and since even hat and twine robbery was punishable by death (sounds like modern-day Texas), he and his fellow ruffians were hanged before the end of the year. Although the attainder law was never used, Jefferson continued to justify his decision to support the bill throughout his life, writing at one point many years after the incident that he “was then thoroughly persuaded of the correctness of this proceeding, and am more and more convinced by reflection.”

Despite Jefferson's flirtation with legislative punishment, it is easy to see why the framers would have had it in for bills of attainder, because these things fed right into their loathing of concentrated powers. Unlike the framers' ideal vision of how the government should mete out punishment—the legislature makes a general rule, the executive charges someone with violating the rule, and the courts decide if the rule has really been broken—with bills of attainder, the legislature acts completely alone. Moreover, because legislatures are elected by popular vote and lack the kinds of procedural protections found in courts, the framers thought that they were inherently inadequate to determine individual guilt. No wonder James Madison called bills of attainder “contrary to the first principles of the social compact” and Alexander Hamilton said that to apply the “name of liberty” to any government that used them “would be a mockery of common sense.”

At the outset, though, it was far from clear whether, by using the specific phrase “bills of attainder” in the Constitution, rather than something broader, like “legislative punishment,” the framers had outlawed only those legislative enactments that precisely resembled the English bills of attainder. Would a legislative death sentence that didn't carry with it a “corruption of blood” count? (Interestingly, a separate section of Article III provides that “Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood.”) How about a legislatively imposed prison sentence or property forfeiture? The Supreme Court answered this question definitively very early on, when Chief Justice Marshall, in the 1810 decision of
Fletcher v. Peck,
stated that a “bill of attainder may affect the life of an individual, or may confiscate his property, or may
do both.” The Court made it clear that the clause was aimed at the problem of legislative punishment generally and not just the specific bad thing known as a “bill of attainder” in eighteenth-century England.

The Court has heard a number of bill-of-attainder-clause cases in the last couple of hundred years, but only five times has it ever condemned a law under the provision. The first two of these cases came right after the Civil War. In
Cummings v. Missouri,
the Court struck down a law making it illegal for anyone who could not swear an oath that he had not rebelled against the Union to serve in certain professions, including the priesthood. In
Ex parte Garland,
the Court invalidated a federal statute that required any lawyer who wanted to appear in federal court to take the same kind of oath. Building on
Fletcher v. Peck,
the Court in these two decisions made clear that the bill of attainder clauses would be applied broadly, not only to a punishment that is far, far less severe than the death penalty, but also to laws that describe a group of people rather than naming them specifically. Another famous bill of attainder case came in 1946, in
United States v. Lovett,
when the Court struck down a law that singled out three specific government officers, deemed by at least one member of Congress to be “irresponsible, unrepresentative, crackpot, radical bureaucrats” (read: Communists) as being unfit, and therefore ineligible, for a federal salary. “Those who wrote our Constitution,” the Court said in striking down the law, “well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons, because the legislature thinks them guilty of conduct which deserves punishment.”

The high point for the bill of attainder clauses came in 1965, when the Court held that Congress could not make it a crime for a member of the Communist Party to hold an officer or employee position in a labor union. The case involved a San Francisco dockworker named Archie Brown,
who had been a Communist since the late 1920s. When Brown was elected to the executive board of his union, he was charged with violating a 1959 labor statute and sentenced to six months in prison. Brown, who had fought as a machine gunner in the Spanish Civil War and at the Battle of the Bulge during World War II, not surprisingly refused to back down and challenged his conviction on constitutional grounds. In a landmark opinion, Chief Justice Earl Warren rejected the government's position that because the law was intended not as retribution but rather as a way of keeping dangerous people out of positions where they could do harm, it did not impose “punishment.” As Warren wrote, “Punishment serves several purposes; retributive, rehabilitative, deterrent—and preventive. One of the reasons society imprisons those convicted of crimes is to keep them from inflicting future harm, but that does not make imprisonment any the less punishment.”

In several other cases, however, the Supreme Court has rejected bill of attainder challenges to controversial laws. In a 1984 case called
Selective Service System v. Minnesota PIRG,
for instance, the Court upheld a federal law that made male students who hadn't registered for the draft ineligible for student financial aid. Why was this different from the laws struck down in previous cases? The Court cited two reasons. First, unlike
Cummings
or
Garland,
where someone had either fought for the Confederacy or not, here someone who wanted federal aid could change his mind and register for the draft. Thus, the group of people singled out under the law was not permanently set at the time of the legislation. Second, the law did not impose punishment, primarily because it served the nonpunitive goal of encouraging young men to register for the draft. In deciding that the law was not punishment, the Court applied a three-part test (the Supreme Court loves three-part tests almost as much as it loves big corporations) that was set out several years before in
Nixon
v. Administrator of General Services,
a case in which Richard Nixon unsuccessfully challenged a law singling out his papers and tapes for special treatment. According to the test set out in
Nixon
and applied in
Selective Service System,
the question of whether some burden imposed by a law counts as “punishment” turns on whether (1) the burden has
historically
been considered punishment; (2) the burden
functions
as punishment (or whether it instead serves some nonpunitive goal); and (3) the legislature
intended
to punish the individual or individuals singled out by the law. These, then, are the key questions when it comes to deciding whether the three scenarios described at the beginning of the chapter were constitutional.

Assuming that you are alive and have not been sleeping under a rock for the past twenty years, you know that the statute books in this country are filled with laws that single out gays and lesbians for negative treatment, denying them the right to marry and many other benefits enjoyed by opposite-sex couples. Might these laws be subject to attack under the bill of attainder clauses?

In 1992, residents of Colorado passed a referendum amending the state's constitution to provide that no government unit within the state “shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall . . . entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.” The referendum, called Amendment 2, rendered invalid local ordinances in Aspen, Boulder, and Denver that had outlawed discrimination on the basis of sexual orientation in areas like employment, public accommodation, and education.

Opponents of the new law (here, we will refer to them as “people who believe in goodness rather than badness”) challenged it in federal court, arguing that it violated the equal protection clause of the Fourteenth Amendment. Despite the inherent goodness of these challengers, they had an uphill road to travel to get the law invalidated under that clause, because the Court had never previously frowned upon laws discriminating against gays and lesbians. Indeed, in 1986, in a debacle of a decision called
Bowers v. Hardwick,
the Court had upheld against constitutional attack Georgia's conviction of a man under the state's sodomy law for engaging in anal and/or oral sex with another man in his own bedroom. (This decision, mercifully, was overruled in 2003.)

The Supreme Court surprised a lot of people when it decided in
Romer v. Evans
that Amendment 2 did in fact violate the equal protection clause. Justice Kennedy's opinion for the majority, however, did not fashion any sort of broad ruling to protect gays and lesbians from run-of-the-mill discrimination. Instead, the Court focused on the specifically awful nature of Amendment 2—a law so broad and so unconnected to any plausible justification that it “seems inexplicable by anything but animus toward the class it affects.” The Court, essentially, invented a new doctrine to deal with Amendment 2—the “anti-animus” rule—that it had never used before and has not used since. It probably goes without saying that Justice Scalia issued a dissenting opinion so apoplectic in tone that one wonders whether he bit a gavel in half while writing it.

Because the majority's decision in
Romer
strayed pretty far from traditional equal protection doctrine, even scholars who supported the decision looked for ways to explain it that might make better sense of the case. One such scholar was Yale Law's Akhil Amar, a constitutional law professor so prominent that I'm surprised I haven't mentioned him yet. If Amar were a baseball player, he'd be Alex Rodriguez; if he
were a Scrabble player, he'd be, well, whoever one of the best Scrabble players in the country is. In an article published soon after
Romer
was decided, called “Attainder and Amendment 2:
Romer
's Rightness,” Amar argued that the key to understanding the case is the Constitution's ban on bills of attainder, which is essentially what Amendment 2 amounted to. Amar wrote of the law: “It was a kind of legal and social outlawry in cowboy country—a targeting of outsiders, a badge of second-class citizenship, a tainting of queers, a scarlet Q. The queer (pun intended) language of Amendment 2—its odd and obsessive singling out of all nonstandard sexual orientations—was a subtle cue, a Freudian slip that told fashioned animus was afoot here.” Though Amar observed that Justice Kennedy's opinion didn't actually discuss or even mention the bill of attainder clause, he argued that “the sociology and principles underlying the Attainder Clause powerfully illuminate . . . the opinions in
Romer,
and the spirit of the Equal Protection itself.” The clause, Amar suggested, “offers lawyers litigating gay rights cases a particularly rich and apt source of doctrine.”

Amar's article got a lot of attention in the lawyerly and scholarly world, and, sure enough, lawyers litigating gay rights cases have tried using his attainder theory to challenge other anti-gay-and-lesbian laws and regulations. Once, it almost even worked. In the year 2000, the charitable citizens of Nebraska (probably the same people who keep arguing that a driver's license is a title of nobility) voted by a huge majority to amend their constitution to make sure that people of the same sex who love each other cannot enjoy the same legal benefits enjoyed by people of different sexes who love each other. Specifically, the new Section 29 of the Nebraska state constitution says that: “Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar
same-sex relationship shall not be valid or recognized in Nebraska.”

As in Colorado, people who believe in goodness sued, and at first the courts agreed that the new law violated the US Constitution. District court judge Joseph Bataillon held that Section 29 violated the First Amendment, the Fourteenth Amendment, and the bill of attainder clause. On the latter holding, he agreed with the plaintiffs that by making it impossible for them to “petition their representatives and city and local governments for legislative changes that would protect their relationships, agreements, and interests,” the new amendment “effectively disenfranchised lesbian and gay and bisexual people and their supporters.” Citing the Supreme Court's decision in
Brown
and prominently featuring Amar's article on
Romer,
Judge Bataillon concluded that this was punishment aimed at a specific group. The Eighth Circuit Court of Appeals, however, disagreed and found fault with almost everything that the district court had said. On the bill of attainder point, the appeals court held that the political disadvantage imposed on gays and lesbians by Section 29 was punishment neither in the historical sense nor in the functional sense. Why didn't the amendment serve functionally to punish? Because “it serves the nonpunitive purpose of steering heterosexual procreation into marriage, a purpose that negates any suspicion that the supporters of [the amendment] were motivated solely by a desire to punish disadvantaged groups.”

I'm not sure what I think about this bill of attainder argument against laws disadvantaging gays and lesbians. I find myself agreeing with New York University's Rick Hills, who filed a brief on behalf of the plaintiffs in
Romer
arguing that Amendment 2 violated the equal protection clause. In an article responding to Amar's bill of attainder clause analysis, Hills (a former student of Amar's) suggests, among other things, that the Coloradoans who
supported and voted for Amendment 2 did not think that they were targeting a closed class of individuals; indeed, one reason they disliked giving rights to gays and lesbians was because they feared these rights would cause more people to “become gay.” Regardless of the nutso-ness of this fear, it does suggest that the supporters of the amendment did not seek to punish a specific, closed set of people through their nasty law, which is the essence of a bill of attainder. More to the point, though, I feel that a judicial decision using the bill of attainder clause to strike down a law like Colorado's or Nebraska's would skirt the real issue, which is that gays and lesbians deserve equal treatment under the law. Much better, I think, for the courts to strike down obnoxious laws like Amendment 2 on straightforward equal protection clause grounds. Sometimes a problem as gross as outright discrimination on the basis of sexual orientation deserves to be fed to the constitutional lions.