Ciceronian Review

Supreme Court Yields to Facebook

This may be the best comment (posted September 2) on the Supreme Court in recent months.

Some Questions From Union Gospel

The decision in Union Gospel is built on the ministerial exemption afforded to religious institutions under the First Amendment of the US Constitution and, presumably, state constitutions.  What sort of group qualifies as a religious institution for this purpose?  Surely religious entities that are incorporated under applicable law -- churches, temples, and the like.  Do confraternities count, i.e., lay organizations engaged in religious work or missions?  Union Gospel is an employment case.  Do its terms also apply to voluntary organizations?  May a lay group bar from membership those not in compliance with its doctrines?  I would guess it could, but that is a guess.  I do not know the areas of applicable law well enough to offer more than that.  But suppose the organization provides services, along the lines of Union Gospel.  Does that change things, or is the important line whether it has employees?  Or requests payment for (some) services? 

In her concurrence, Justice Yu says: "Given our state’s long-standing commitment to eradicating discrimination and to fostering a diverse workforce, it is my greatest hope that religious institutions will recognize and embrace the choice to limit the “ministerial exception” to those employees for whom such an exception is absolutely necessary and grounded in sound reason and purpose. After all, the right to exclude the LGBTQ+ community from ministerial employment by religious institutions is not a right that must be exercised. Rather, it is a choice by that religious institution and it is a choice that is not governed by an external judicial doctrine but rather one carved out by the religious entity itself."  (¶46, emphasis added.)  I wonder what Justice Yu means by "absolutely necessary and grounded in sound reason and purpose".  In the instant case, what sort of factors would count toward "absolutely necessary and grounded in sound reason and purpose"?  Would it be enough to point to salient passage in the Christian Bible?  IS some further doctrinal defense needed?  Is the religious belief or beliefs to be grounded in reason, not revelation?  To the second emphasized phrase, is it appropriate to put the issue in such voluntaristic terms?  What does Justice Yu mean by choice?  Is it her thought that, e.g., whether to believe in pre-destination is a matter of choice for Calvinists?  Do the religious choose what to believe?  I think the answer is a rather mixed response -- conversion is not always a choice, and I think normally not really voluntaristic.  In other words, is the identity put at issue not a fundamental aspect of identity, quite unlike whether to be a lawyer or a teacher?  Or, to be a bit tendentious, is religious identity less important than sexual orientation? 

The passage, for me, reads as a call to religious institutions to minimize their religious commitments, and to embody a certain lack of respect for the religious.  Washington permits ideological legal services I believe, e.g., legal services that represent particular causes or groups.  Lawyers limit their practices in all sorts of ways.  Why would it be that modeling the religious commitment to alleviating need not count as "elucidating or teaching" the faith? 

Which Ones Are Fundamental?

 

              ^{In Wood v. Seattle’s Union Gospel Mission, Washington Supreme Court reversed a summary judgment in favor of Union Gospel in an employment discrimination dispute. The plaintiff, Wood, had been a volunteer at Union Gospel for some time and, following graduation from law school, applied for an open position as a staff attorney. He was denied the position after he disclosed that he was in a relationship with another man and that he hoped one day to marry. When Woods first began work with Union Gospel as a volunteer, he had signed a statement of faith affirming that his commitment to upholding biblical values. The primary state law applicable to the case is Washington’s Law Against Discrimination (WLAD), chapter 49.50 of the Revised Code. WLAD exempts religious nonprofits from the definition of “employer”. On that basis the trial court granted Union Gospel summary judgment. The Washington Supreme Court accepted Woods’ appeal to address whether the exemption of religious nonprofits was unconstitutional on its face, or, if not, is its application to Woods invalid. The Court reviews the history of the statute and the applicable state and federal caselaw, with extended discussion of Our Lady of Guadalupe. The upshot is that the Washington Supreme Court adopted the analysis of Our Lady of Guadalupe, which limited a religious exception to anti-discrimination employment laws to positions which involve a significant ministerial function. The exception is upheld against a facial challenge. But then the question, which is sent back to the trial court to consider, is whether Woods’ potential role as a staff attorney is sufficiently intertwined with religious teaching and ministerial activities, to be within the exception of religious nonprofits from the reach of WLAD. In other words, the district court will need to consider the factors and analysis of Our Lady of Guadalupe to make a judgment about the religious nature (or lack) of staff attorney for Union Gospel.}

              ^{One gets a sense, however, that the Supreme Court, notwithstanding that teh issue had not been addressed below, is inclined to the conclusion that Woods should win in the end:}

^{WOODS acknowledges that all SUGM employees are expected to evangelize, but there is no evidence that staff attorneys had titles as ministers or training in religious matters comparable to Hosanna-Tabor’s teacher. And while staff attorneys are expected to share their faith with clients as opportunities arise, there is no evidence that they are expected to nurture their converts’ development in the Christian faith similar to the job duties performed by the teachers in Our Lady of Guadalupe and Hosanna-Tabor. Further, neither SUGM nor ODLS is a church or religious entity principally responsible for the spiritual lives of its members. SUGM employees are expected to be active members of local churches; SUGM employment alone does not appear to be sufficient religious affiliation. Employees held to be ministers in Our Lady of Guadalupe and Hosanna-Tabor led faith groups and taught religious doctrine. The record indicates that these duties occur outside SUGM, in local churches for SUGM employees. Moreover, WOODS sought employment with SUGM as a lawyer specifically, not as a religious minister or teacher, and there is no indication that religious training is necessary for the staff attorney position, unlike the teachers in Hosanna-Tabor. (¶41)}

^{Maybe that is an accurate account of the record: Maybe Union Gospel made no real effort to show the religious aspects of the staff attorney position. But, as the Court itself says earlier in the opinion, the issue was not litigated below. The Court’s views also come out in the concurrence. “I would hold that there areno reasonable grounds to afford the privilege of the Washington Law Against Discrimination, ch. 49.60 RCW, exemption to Seattle’s Union Gospel Mission (SUGM) because SUGM cannot enjoy a free exercise right to discriminate against an employee who performs nonreligious duties, such as a staff attorney. However, because there are factual questions regarding the duties of the staff attorney, I ultimately concur in the court’s decision to remand.” (¶44) These two sentences are in some tension. Justice Yu first says staff attorney position are nonreligious (so no exemption applies) and then says, second, that there are factual questions about the duties of staff attorneys. The first strikes as more sincere than the second. Or consider the following two paragraphs, which are a short lecture directed at religious institutions that they really would be better changing their doctrinal commitments, e.g., to marriage as one man and one woman, or prohibitions on extramarital sex. Not much room there for minority views of what conscience demands. To be sure, the concurrence recognizes that Union Gospel’s claim is not frivolous, there are “some circumstances” weighing in its favor: it describes the legal service as a ministry that operates with an evangelical purpose. But, of course but, Union Gospel does not hold the attorneys out as ministers, and does not require a significant degree of religious training. “And in the context of a nonprofit legal aid organization serving the civil legal needs of vulnerable populations, I believe it is simply not possible to simultaneously act as both an attorney and a minister while complying with the [Rules of Professional Conduct].” (¶52) Religious consideration are not prohibited, that much is conceded. (¶53.) At least, clients are permitted religious conscience. For lawyers, it is quite unclear whether Justice Yu thinks attorneys are permitted a conscience, nor, in the event the lawyer has moral reservations about a client’s requests the lawyer is permitted to withdraw or is instead required to elide their moral concerns. I wonder if, in Washington, Union Gospel can require its employees to be Christian, or is it required not to inquire into religious beliefs, or their absence? That would be discrimination on the basis of creed, which WLAD bars. Or is the analysis limited to discrimination related to fundamental rights, marriage and sexual orientation, and religious commitment is no so connected to a fundamental right?}

Creative Dissent

From the dissent, by Judge Tymkovich, in 303 Creative:

It is important to understand from the outset that Ms. Smith and Colorado agree that she will serve anyone, regardless of protected class status. In the district court, both she and Colorado stipulated that: (1) Ms. Smith is ”willing to work with all people regardless of classifications such as race, creed, sexual orientation and gender”; and (2) Ms. Smith does “not object to and will gladly create custom graphics and websites for gay, lesbian, or bisexual clients or for organizations run by gay, lesbian, or bisexual persons so long as the custom graphics and websites do not violate [her] religious beliefs, as is true for all customers.” Aplt. App. 2+322. Ms. Smith and Colorado also agree that she “will decline any request to design, create, or promote content that: contradicts biblical truth; demeans or disparages others; promotes sexual immorality; supports the destruction of unborn children; incites violence; or promotes any conception of marriage other than marriage between one man and one woman.” Id. At 2-323. And counsel for Ms. Smith confirmed at oral argument that she would represent clients regardless of sexual orientation in creating websites that celebrate opposite-sex weddings. (55-5)

This establishes that there is no discriminatory intent, and that the policies are applied uniformly, i.e., flow from religious belief. And it makes clear that it is her involvement in and expressive action that are the basis for her commitments - the design work is expressive of her, including her religious commitments which do, after all, go to her identity. 

The dissent then makes what I think is the key point. On the majority’s approach, 303 Creative is compelled to create expressive content celebrating same-sex weddings (contrary to religious beliefs) as long as she creates expressive content celebrating opposite-sex weddings (consonant with religious beliefs). Compelled speech, in other words, is what the majority approves of. (55-56) The Supreme Court cases on compelled speech require a different outcome. (56-64) ”A state may not regulate speech itself as a public accommodation under anti-discrimination laws. But CADA does so here, making Ms. Smith’s artistic talents the vehicle for a message anathema to her beliefs.” (69) As CADA by its own terms and as administered by Colorado has exceptions, its application to religious beliefs here clashes with Supreme Court holdings. I think the dissent is right to point to application to other sorts of artistic endeavors, that the majority’s view entails compelled speech in a host of situations where it is not justified, i.e., violates the constitutional order. Islamic artists compelled to provide Zionist murals, Jewish cantors required to perform Catholic services, and so on. (All of these involve someone who is paid for their work, so well within the scope of CADA according to the majority.)

The dissent also makes out a strong case that CADA is not neutral as to religious beliefs and that it involves exemptions that are based on the content of message, e.g., secular reasons for refusal to produce expressive content are accorded more consideration than are religious reasons. This decision puts the Tenth Circuit into conflict with the Eighth Circuit. There is hope that the Supreme Court will take up this case and sort out at least some of the boundaries for interaction between the First Amendment and anti-discrimination statutes.

A final few small points. The majority downplays the import of the holding of the Supreme Court in Masterpiece Cakeshop, brushing aside the religious bigotry of the record as found by that Court. It is a little troubling that the majority is not concerned that, on remand to Colorado, one of the commissioners asserts that the remarks noted with disapproval by the Supreme Court were right, or that counsel for the commission describes religious beliefs as beliefs “termed” sincere religious beliefs. Perhaps not enough to vitiate the decision-making, but also not the language of people intent on playing an unbiased adjudicatory role. The beliefs are not “termed”, they are religious beliefs and should be treated as such. Just so it would be an improvement if the majority here (and other courts) would stop using quotation marks around sincere religious beliefs and religious belief -- it signals a lack of sincerity by the courts, that they hold the beliefs as sincere religious beliefs in name only, as window-dressing.

303 Creative - Tenth Circuit Confusion

           At the end of July, the Tenth Circuit Court of Appeals handed down a decision in 303 Creative v. Elenis, et al., (19-1413), a Colorado case concerning whether a wedding web designer could, consistent with her religious beliefs, decline to do web design work for same sex marriages. The Tenth Circuit said no, affirming the district court’s decision. The law at issue was CADA (Colorado Anti-Discrimination Act), the Act which was involved in the Masterpiece Cakeshop case. Under CADA, a public accommodation is “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public.” It has exemptions for places used principally for religious purposes and for some sex-based restrictions. 303 Creative is a web-design company, planning to expand its business to offer design services for websites celebrating weddings. The owner and sole member adheres to religious beliefs that do not condone same sex marriages. In her view, same sex marriages conflict with God’s will. She will, however, provide graphics and website design services to LGBT customers purposes. She will not provide services to anyone for same-sex marriages. She also plans to include in her website a statement explaining her religious objections. The issue is, then, focuses on whether her religious objections to same-sex marriage survive CADA or she must provide design services for same-sex marriages if she offers design services for opposite sex marriages.

           I pass over the discussions of standing and injury. They are interesting, but not necessary to discussion of the substantive holding. To the substance then. First, the Court found that 303 Creative’s creation of websites is pure speech. “[C]reating a website ... implicates Appellants’ unique creative talents, and is this inherently expressive.” (22) The Accommodation Clause [of CADA] also ‘compels’ Appellants to create speech that celebrates same-sex marriages.” (24) Because the Accommodation Clause compels speech -- if 303 serves opposite-sex weddings it must serve same-sex weddings, it is a content-based restriction. (25) Hence, strict scrutiny applies, i.e., Colorado must articulate a compelling state interest and show that the restrictions are narrowly tailored to achieve that purpose. (26) The compelling state interest is “protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace.” While the Accommodation Clause is not narrowly tailored to prevent dignitary harms, it is narrowly tailored to ensuring equal access to available goods an services. (27-8) “The question then becomes whether Colorado’s interest in ensuring access to the marketplace generally still applies with the same force to Appellants’ case specifically -- i.e., ‘whether [Colorado] has such an interest in denying an exception to [Appellants].’” (29)

           Excepting Appellants from the Accommodation Clause would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition unavailable elsewhere. As discussed above, our analysis emphasizes the custom and unique nature of Appellants’ services, For rthe same reason that Appellants’ custom and unique services are speech, those services are also inherently not fungible. To be sure, LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services o the same quality and nature as those that Appellants offer. Thus, there is no less intrusive means of providing equal access to those types of services.

           Amici dispiute whether subjecting businesses to the Accommodation Clause ultimately chills commerce by discouraging businesses from entering the market, due to fears that they will be compelled to create objectionable products. ... With respect to amici, we find the dispute beside the point. This case does not present a competitive market. Rather, due to the unique nature of Appellants’ services, this case is more similar to a monopoly. The product at issue is not merely “custom-made wedding websites,” but rather “custom-made wedding websites of the same quality and nature as those made by Appellants.” In that market, only Appellants exist. And, as amici agree, monopolies present unique anti-discrimination concerns. ... It is not difficult to imagine the problems created where a wide range of custom-made services are available to a favored group of people, and a disfavored group is relegated to a narrower selection of generic services. Thus, unique goods and services are where public accommodation laws are most necessary to ensuring equal access. ... To us, whether an exception limits market access depends upon the uniqueness of the public accommodation’s goods and services -- not the sincerity of the public accommodation’s beliefs. (30-2)

Let me stop here for discussion, leaving other aspects of the majority opinion for later consideration.

           The market discussion is surprising. The majority seems to be saying that 303 Creative has no competition, it is a monopoly. The services offered by 303 Creative are not available anywhere else (“Appellants’ unique services are, by definition unavailable elsewhere.”) This is, shall we say, a curious claim. First, anyone offering the least bit of customization or design is offering a unique service in this sense. That doe snot, however, tell us that the entity is in a unique, single member market. Web-design and graphics services are big markets. It is just false, in the ordinary everyday meaning of not true, that 303 Creative offers services “unavailable elsewhere.” The services are available from lots of other sources. Her services are unique in the same way every person performing service work is offering something unique, i.e., trivially so. 303 Creative is not unique because it is the only web design service in some geographic market.

           The majority do think that a commercial artist, that is, someone providing artistic services for profit, is each and every one in their own market, that none competes with anyone else. That is false. Web designers compete against one another, and each tries for its own mix of offerings to achieve economic success. They also compete against DYI applications. I.e., some generic and cheap and some personalized and more expensive, are all competing for the same general set of consumers. It is a little stranger in that 303 Creative does not yet offer wedding website design services, and, given the decision of the court, likely will not offer such services. So her wedding website design services, unique in the market and so a monopoly, do not even exist yet.

           According to the majority, 303 Creative not offering wedding website design services for same-sex weddings illegally constricts the market for same-sex wedding website services, excluding LGBT consumers from that unique market, even though 303 Creative does not offer anyone wedding website services. LGBT consumers are left with an inferior, constricted market -- exactly the market such consumers are already in because 303 Creative has not offered wedding website services to anyone as yet.

           On the majority view, every for profit enterprise that offers customized services is in a unique, single firm market. Maybe there is some special, non-economic meaning of “market” in the context of public accommodation law, divorced from economics and the rather well-developed law of competition.

           How is any artist selling to the public in Colorado not a public accommodation? Well, maybe the background thought is that public accommodation only matters if the artist engages in discrimination. But that may mean, e.g., a painter cannot specialize in portraits of African-Americans, or Catholic religious paintings, etc.

           It is also interesting that the compelled speech cases come in for discussion in the question of standing, but effectively disappear from sight when the merits are discussed. How does this case fit with Hurley, in which the Supreme Court held that the New York St. Patrick’s Day Parade could not be compelled to include a contingent of gay marchers? Is it really just that 303 Creative is for profit and the parade is nonprofit?

           In Masterpiece Cakeshop there was extended discussion in the briefs and in argument before the Supreme Court over whether making cakes was sufficiently artistic to take the service outside the scope of CADA. That discussion was based on the view, including caselaw, that artistic creations are within the protections of the First Amendment and subject to public accommodation requirements only in extraordinary circumstances. Requiring speech, which is what is being talked about, is not normally within the scope of legitimate government powers. Well, not so in the Tenth Circuit now. 303 Creative has religious objections to same-sex weddings, wedding web-site design services involve personal artistic speech -- that was agreed by all parties and so given. Requiring 303 Creative to design websites for same-sex weddings looks like compelled speech, and is.

An I For An I

In deciding Fulton the Supreme Court sidestepped both the question of whether to overrule Smith and how far accommodation of religious beliefs in conflict with anti-discrimination policies may go. In summary, the Supreme Court found that the Philadelphia policies and laws were not of general application, because they provided for exceptions, and so the requirements of Smith had not been met and the case could be decided without addressing the standing of Smith.  Catholic Social Services won, at least for the moment.  The litigation is likely to continue in another form, as one response Philadelphia may make is to amend the relevant statutes and policies to eliminate exceptions, thereby curing the lack of general applicabiity of the laws.  That route would result in another suit and the Supreme Court facing directly whether to preserve or overrule Smith.  A reason not to go that route is that there are already three Justices prepared to overrule Smith, and another 2 or more thinking about overruling Smith.  My impression is that, when the question comes to the Supreme Court, Smith will be overruled. Philadelphia then ought to take the loss and let others litigate the status of Smith. The result in Fulton surprised me.  I thought that the Court would both address Smith and either find for, or suggest a method of analysis favorable to, Catholic Social Services. That did not happen, obviously, but there is writing on the wall. 

The ACA decision (California v. Texas) took up most of the commentary on the decisions handed down Monday.  That seemed to me an easier case, indeed, one that would not have made it to the Supreme Court had the lower courts not be so ideological.  The technical nature of Fulton also helped lower its profile, but the problems the case presented are not going away.  The conflict between religious belief and anti-discrimination laws and regulations is not solved.  The apparent commitments of a majority of the Supreme Court look to me to invite further litigation, that is, the Court will overrule Smith and will try to work out means by which there will be greater accommodation of religious views as exempted, to a limited but real degree, from anti-discrimination law.  Stay with CSS as an example.  It is not a simple anti-gay bias that is at work.  CSS serves unmarried gay men and lesbians along with their heterosexual counterparts.  (So the Supreme Court says anyway.). CSS draws a line only between married same-sex and married different-sex couples.  Married couples is the locus of conflict here.  CSS has religious commitments concerning the nature of marriage that entail that preclude treating same-sex marriages as equal with different-sex marriages.  But as it willing serves unmarried persons of various sexual orientations, it is not really true that it is excluding or denigrating gay men or lesbians.  If the analysis of Bostock gets applied that fact may not matter because denial of service to same-sex married couples would seem to be in virtue of sexual orientation of the married couple.  But Bostock does not yield a clean answer because it is, after all, just within the set of married couples that different treatment arises.  I.e., it is not solely sexual orientation that matters, as was the case in Bostock. 

For many, any exemption would be anathema, i.e., any exemption will denigrate gay and lesbian married couples, and so gay and lesbian persons.  They would be an affront to their identities.  And the absence of any exemption denigrates the adherents to the Church.  CSS is not a business; it is part of the religious practice and mission of the Church and its members.  Forcing them to abandon the mission denigrates the importance of religious identity, denigrates beliefs fundamental to identity.  Which I carries the day?  I am not at all certain.  Tentatively, my thought is that the accommodation and exemptions is the better route.  In Philadelphia, there are 21 or 22 other agencies involved in offering credentialing to prospective foster parents.  I think all of the other agencies work with same-sex married couples, so there are lots of alternatives to CSS, and its presence has no material effect reducing opportunities for same-sex couples.  Certainly the continued presence of CSS doe snot impose an undue burden on prospective same-sex married couples with to become foster parents.  Permissible obstacles to abortion are higher.  Pharmacists, who are engaged in business, are able to opt out of service involving contraceptives.  These too involve rights grounded in the Constitution, and yet exemptions and accommodations are to many quite acceptable.  Tentative thoughts.

Discomforting

The US Supreme Court denied certiorari in Republican Party of Pennsylvania v. Degraffenreid yesterday.  The case was a challenge to the procedures used in the last election in Pennsylvania.  It was, more recently, a vehicle to test the latest Republican theory on how to constraint voting, a sort of state legislative supremacy view of election rules.  With the election over and no likelihood that a decision in the case would have any effect on the electoral outcome, there was a genuine question of mootness, and that is the basis for denial.  There were dissents by Thomas and Alito.  The key point in Thomas' dissent was that the problem raised by the case is not going away, and that it will return at a point hen the briefing and consideration will be quite compressed.  It makes sense for all to address the question about regulation of election now when there is time and quiet to do so. 

I think Thomas and his co-dissenters are more interested in getting a case that will enable them to restrict voting, and see this as a respectable means to achieve that end (because it sounds like a neutral judicial effort), whatever the outcome.  Take away a potential shadow on a next election.  In other words, the dissents seem to me disingenuous.  But, the dissenters have a good point.  It does make more sense to solve the problem now rather than wait for the contested election that makes resolution crucial, and highly political.  It leaves me in the unexpected and somewhat uncomfortable position of reluctantly agreeing with Thomas -- the only reason I see for denial is the thin hope that several justices on the way out right side of the bench will retire or die or be disabled in the next couple of years.  In addition to very poor odds, there is something at best unseemly and perhaps worse, in having such a hope.

Well, then, fall back to the mantra - the Supreme Court is a super legislature, and all courts are reduced politics.  The oath is a lie or we give allegiance to an unjust state. 

Utah's New Disciplinary Rules

The Utah Supreme Court has recently made changes in the processes of attorney discipline.  The entire set of procedural rules have been revised and replaced.  It is essentially a three-step process: complaint and investigation, presentation to an ethics panel, litigation before the District Court.  That is the same.  There have been changes in the investigation process.  Under the new set of rules, both the lawyer (Respondent) and OPC have subpoena powers.  Rule 11-512(a) gives subpoena power to the  Respondent:  "the Respondent may, for good cause, request the Committee chair authorize service of a subpoena".  The process under 11-523 is a little different for OPC:  the OPC files a written request for a subpoena which "must describe the purpose for seeking the subpoena."  The Respondent can object, but Committee chair "will grant or deny the subpoena request, without a hearing, based on weighing: (1) the materiality and necessity of the requested documents ...and (2) the burden to the custodian".

These provisions raise some questions in my mind.  Start with a drafting decision.  In considering whether to approve an OPC request for permission to serve a subpoena, the Committee chair does not consider objections by the Respondent.  The chair weighs "the materiality and necessity" of the request and the burden on the custodian.  Presumably the subpoena is under URCP 45 (as later provisions about quashing or enforcing reference application of Rule 45).  Rule 45 allows for objections beyond materiality, necessity, and burden.  There are objections to the wording of a subpoena, to privileged and confidential material, for example.  Are they now ruled out of consideration?  Well, this is only the issuance stage so perhaps these and other objections can b e raised by the recipient.  The standard for allowing a Respondent to serve a subpoena is different.  It is not about materiality and necessity, but "good cause".  Presumably 'good cause' is a different standard, or the same language would appear in both provisions.  But how are the standards different?  Is it just that OPC has to explain why it wants to serve a subpoena and Respondent does not?  That cannot be right as the Committee chair permits a subpoena by the Respondent only for good cause, which I think entails that the Respondent has to give some explanation for seeking leave to serve.  But the Rule does not really say that. 

Here is another curiosity of the subpoena provisions -- OPC may subpoena the Respondent, but the Respondent may not subpoena OPC.  11-512(a) says that the Respondent may apply for leave to serve a subpoena "before the screening panel authorizes the OPC to commence an Action against the Respondent ... on a third party."  I have not found a duty for OPC to disclose its documents, etc., to the Respondent.  It can make a voluntary disclosure of a summary of charges, but that is not the same thing at all. 

A final point about textual oddities:  a subpoena served by a Respondent, but not one served by the OPC, can be challenged before the Committee chair or a District Court.  "The Committee chair or the district court in wherein the subpoena enforcement is being sought will hear and determine any attack on an issued subpoena as provided for in Rule 45."  So the chair reviews the subpoena and authorizes service because the subpoena meets the good cause standard, and then the chair reviews "attacks" on the very subpoena.  Well, that is surely not a good way to get an impartial review of the subpoena.  An OPC subpoena can only be challenged by going to court.

A provision I will return to later:  "Any resulting order by the district court is not appealable before entry of a final order in the proceeding." 

There is an interesting underlying question: what is the source of the subpoenas power here?  Next time.

"Sorry" Is Not Enough

Had the rally and invasion of the Capital been by a predominantly African-American crowd, there would have been, I believe, much greater and more effective police protection of the building and those within.  And a more violent response from the police.  Had the rally and invasion of the Capital been by a predominantly liberal or left-wing crowd, there would have been, I believe, much greater and more effective police protection of the building and those within.  And a more violent police response.  Race is not the only line to draw here, and seeing additional factors does not lessen the import of the fact that this crowd was overwhelmingly white; that it was overwhelmingly right-wing is also a part of the story, and should not be forgotten.  The reliance on language encouraging violence and extra-legal conduct is a greater part of the Republican party than elsewhere.  The verbal violence of Gringich is one starting point in that story, and his success within the party leads to this week's failed insurrection.  The thousands were and are part of the local party apparatuses of the Republican party.  It is up to that party to remove them from influence.  The talk of unity and so on is to the good, but remains advertising chatter until the Republican party turns against the violence and illegality demonstrated this week.  A single vote will not do.  That Romney was virtually alone for months against Trump means that too much of the party is intertwined with Trump's cult of illegality and violence and unifocal drive for power.

Part of what needs to be done is to reject local leadership like that of the head of the Chicago Police Union.  An apology for minimizing and excusing the events at the Capital seems to me inadequate.  Catanzara should not be head of the union.  Defending violent felonies, which is what he did, can't be reconciled with his position as the leader of a police union.  The Senators and Representatives who condoned the attack -- which is just what the votes objecting to the Electors fo Arizona and Pennsylvania, etc. -- should have no place in a national party.   

The pathetic performance of all of the security agencies and leaders shows that there is a need to reorganize and reassign, and fire, a good number of agencies and persons.  It was plain from the news reports in advance of the rally that violence should be expected, that there was an intent to attack the Capital.  Yet too few officers, no presence outside the building, no National Guard, and so on.  The Capital deserves at least the defense of a courthouse in Portland.  But it got very little. 

Over and over violence by Trump's supporters was excused and explained away.  Certainly by Republicans and conservatives.  Also by police and prosecutors, and by judges.  Courts too excused violence by right-wingers.  From little things, like the Trump bodyguard who assaulted a protester without suffering any punishment, to crowds encouraged to rough of and attack protestors, to that disgrace to the Army, Flynn. 

Change the politics, change the race, there would not have been an invasion of the Capital.  But then, there have not been calls and planning by BLM or left and liberal groups to attack the Capital. 

Not Just Trump, But Gringich and Cruz and the 108 House Members

There are few occasions on which I find that I am in agreement with an editorial of the Wall Street Journal' Editorial Board.  This morning's editorial is, however, one of those occasions.  The Republican House Members and Senators persisting in challenges to the votes of some states is worse than political theater or pandering to base.  It affirms and condones conduct which attacks the integrity of the national process, dismisses the Constitution.  The rioters and their abettors in Congress should be condemned, and the rioters prosecuted.  That members of Congress continued with the challenges is evidence that Trump's hold over the Republican Party remains strong, and that it will continue after he leaves office.  The tests will come when these folks stand for election next.  I think these people, like the Tea Party wing as a whole, will continue to control the Republican Party.