UCLA Undergraduate Law Journal - Volume XV

UCLA UNDERGRADUATE LAW JOURNAL

VOLUME XV

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SPRING 2016

CONTENTS THE COLLEGE SPORTS CONUNDRUM: HOW TO PROTECT, BENEFIT AND SERVE STUDENT-ATHLETES ON SCHOLARSHIP

Holt Alden

THE CASE FOR LEGALIZATION; THE MORAL AND ECONOMIC DILEMMA OF PROSTITUTION

Griffin Glenn

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LEGAL PATH FOR SYRIAN REFUGEES IN THE EUROPEAN UNION

Changyeun Hahn

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LIFE AFTER BURWELL V. HOBBY LOBBY: A CRITICAL EXAMINATION OF CLAIMS OF COMPLICITY AND DISPROPORTIONATE BURDENS ON THIRD PARTIES

Bapuchandra Kotapati

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US VS. SNOWDEN: GUIDING FUTURE WHISTLEBLOWERS

Eunice Lee

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THE STATE OF CALIFORNIA'S WATER RIGHTS

Marina Lindsay

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CIVIC EDUCATION: A BETTER HATE SPEECH CODE

John Malchar

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EQUAL DIGNITY IN THE EYES OF THE LAW: THE IMPACT OF OBERGEFELL BEYOND SAME-SEX MARRIAGE

Alexander Nabavi-Noori

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THE LOGICAL CLOSURE PRINCIPLE, INALIENABLE MORAL VALUE OF DISABLED PERSONS, AND LEGAL PROTECTIONS FOR ANIMALS

Kartik Raj

151

INTELLECTUAL PROPERTY AND INTERNATIONAL POLICY: Yoorian Shin TWO IP ISSUES IN THE TRANS-PACIFIC PARTNERSHIP

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VOLUME XVI

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SPRING 2017

Editor-in-Chief Daniel Hong Managing Editor Alec Lautanen Associate Editors Nairurth Borath Kevin El Khoury Neekta Izadian Kunal Jhaveri Emily Kohlheim Samantha Kuo Nicole Motamed Tahir Naqvi Edilia Sargsyan Jennifer Teitell President Genevieve Javidzad Vice President Chris Han

THE UNDERGRADUATE LAW JOURNAL AT UCLA is published every Spring quarter by the UCLA Pre Law Society, located at 4272 Bunche Hall, Los Angeles, CA, 90095. The journal is a student-produced publication written entirely by undergraduate students from UCLA and other universities across the country with the aim of furthering undergraduate legal research. Copies are available at the UCLA Campus Bookstore and the Pre Law Society office, as well as available online at the Pre Law Society website: uclaprelawsociety.com.

THE COLLEGE SPORTS CONUNDRUM: HOW TO PROTECT, BENEFIT AND SERVE STUDENT-ATHLETES ON SCHOLARSHIP Holt Alden*

ABSTRACT As the college sports industry booms, the welfare of student-athletes themselves are often forgotten or marginalized. The national conversation surrounding student-athletes has focused on the compensation of Division I football and men’s basketball players who generate millions of dollars in revenue for their respective schools. The arguments on each side often hinge on whether or not student-athletes should be able to unionize, neither of which recognize the opportunity that these student-athletes have to leverage their profitability into new supportive legislation for all Division I student-athletes who are on scholarship. The article argues that there is a legal and ethical obligation for universities with Division I programs to provide more support for their student-athletes, including four-year guaranteed scholarships, free health care that extends to injuries that last after graduation, and deferred compensation for prominent student-athletes. There is currently an extreme imbalance of power between student-athletes and their universities which is adversely affecting their ability to graduate with a degree, the inherent purpose *Holt Alden is a third year Global Studies major at UCLA. He is currently the President of the UCLA M en's Club Soccer team and Editor-in-Chief of The Generation, UCLA's foreign affairs journal. Holt plans on attending law school after graduation. Editor: Nicole Motamed is a fourth year sociology major and Iranian studies minor. She plans on attending law school after a gap year during which she will be interning at a law firm. She is currently the president of the UCLA Women's Pre-Law Association.

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behind athletic scholarships. The article argues that the moral and ethical obligations are not enough to spur action from individual universities; it is now imperative that the NCAA pass comprehensive legislation that returns focus to the student-athlete, rather than private profit.

I. INTRODUCTION The market for college sports is a multi-billion dollar industry, with the majority of revenues stemming from top Division I football and men’s basketball programs. The monetary compensation of these elite athletes, however, marks one of the most controversial issues in college sports today. The universities’ legal responsibilities towards their student-athletes has also become relevant over the past few years as non-guaranteed scholarships and lack of health care have become important issues in the college sports landscape. The purpose of this article is to combine the two issues of compensation and the support of student-athletes as they are more intertwined than they appear and may pose solutions to each other. The National Collegiate Athletic Association (NCAA) and universities across the country are making enormous revenues off of a select few of these Division I athletes, namely football and men’s basketball players. This gives these student-athletes the leverage to push for more compensation, as was s een in the Northwestern football team’s recent attempt at unionization. While these athletes are fighting for monetary compensation for their efforts at school, they should also recognize the opportunity they have to spearhead the fight for greater benefits and healthcare for all Division I student-athletes. Football and men’s basketball players are in the strongest bargaining position as they generate the most revenue. Therefore these players are able to initiate widespread changes to scholarship rules, minimum levels of financial aid and guaranteed healthcare. The past three years have seen some positive changes in college athletic scholarships but most student-athletes are still left wanting in terms of health care, guaranteed scholarships, and deferred compensation. In 2012, for example, historic legislation that allowed for multiyear athletic scholarships was upheld by a voting margin of less than half of one percent, 1 giving some student-athletes more stability and financial safety during and after their college 1. Michelle Burtlag Hosick, Multiyear scholarships to be allowed, NCAA, (February 17, 2012), http://www.ncaa.com/news/ncaa/article- /2012-02-17/multiyear-scholarships-be-allowed.

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experience. Last year the PAC-12 and Big Ten athletic conferences passed additional legislation2 that guaranteed all of their student-athletes four-year scholarships and increased medical benefits, both of which go beyond NCAA mandates. Though these efforts are important beginnings, the NCAA still leaves much to be desired in terms of mandatory support of student-athletes and “safety-net” type policies regarding the loss of scholarships due to injury. This article will investigate the legal and ethical implications of recent collegiate legislation while also focusing on future reform. First, stories of student-athletes who were severely mistreated by their universities will be reviewed, followed by student-athletes who most strongly feel they deserve extra compensation. There are countless student-athletes who have lost scholarships due to injury and have been left with massive medical bills, and there are superstar student-athletes who provide millions of dollars in revenue for their schools but are not compensated for these earnings. Consequently, both groups of student-athletes have grievances with current NCAA rules. Second, the legality of the NCAA’s relationship with student-athletes will be considered, specifically regarding compensation for school revenue that was earned using their likeness or work. The NCAA has been sued in anti-trust litigation with mixed success; this article will review case law regarding the NCAA and the Sherman Anti-Trust Act, focusing on White v NCAA, Agnew v NCAA, and O’Bannon v NCAA. Third, current legislation regarding multi-year scholarships, Power 5 autonomy, and rulings concerning student-athlete unionization will be considered, with special focus on the anticompetitive nature of allowing only the Power 5 conferences autonomous decision making. The ability of student-athletes to pursue more beneficial scholarships through collective bargaining or other means will be investigated. The article will also argue that unionization will not benefit all Division I student-athletes. Fourth, the article will argue that the moral and ethical obligation of individual universities should reshape their interactions with student-athletes. The purpose of higher-level education is the “pervasive mission of discovering and advancing knowledge”, 3 not entertainment and maximizing profits. Finally, the article will argue that enforcing mandatory four-year scholarships, 2. Big T en, Big Ten Acts to Support Student-Athlete Graduation, Big T en, (October 8, 2014), http://www.bigten.org/genrel/100814aaa.html; Pac-12 Conference, Pac-12 universities adopt sweeping reforms for student-athletes, guaranteeing scholarships, improving health care, and more, Pac-12 News, (October 27, 2014), http://pac-12.com/article/2014/10/27/pac-12universities-adopt-sweeping-reforms-student -athletes. 3. UC Mission Statement, University of California Office of the President. http://www.ucop.edu/uc-mission/index.html.

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extending post-collegiate health care and allowing some deferred compensation would increase the competitiveness of Division I athletics while vastly improving the welfare of student-athletes. II. WHEN IT GOES WRONG – UINIVERSITIES FAILING THEIR STUDENT ATHLETES

A. The Burden of Medical Expenses and Lackluster Scholarships Watching college basketball’s “March Madness” is a staple for many sports-focused Americans and in 2013 Louisville sophomore Kevin Ware became a household name. Ware suffered a compound fracture in his right leg while playing in an Elite Eight game against Duke. The bones in his leg punctured the skin and rose a few inches above his shin. Many news outlets refrained from showing replays but the injury could easily be found online and Ware made national headlines. Some journalists at the time used Ware as a cause célèbre for the NCAA’s lack of compensation for their athletes, while others berated them for using Ware’s fame as a symbol for their own cause. 4 The injury did remind many of the risks of playing college sports and how exactly student-athletes deserved to be treated. Ware’s medical costs were paid for by Louisville and he did not lose his scholarship 5 but it begged the question of what could have been: What if Ware’s injury had not been suffered on a national stage, as most injuries are? What if Ware had been an athlete in a much smaller program? If so, would he have lost his scholarship the next year? Would he have had to pay the medical expenses out of pocket? The high profile nature of Ware’s injury made sure that he would not lose his scholarship or be forced to pay for his medical expenses. Others such as Stanley Doughty and Kyle Hardrick, however, were not so lucky. The two were written about in an exposé by The Atlantic6 , which is summarized here: Stanley Doughty played as a lineman for the University of South Carolina and was on scholarship from 2004 to 2007. He left school to enter the NFL Draft just twelve units before completing his degree and was eventually picked 4. Dave Zirin, I Shattered My Leg at the NCAA Tournament and All I Got Was This Lousy T-shirt, T he Nation, (April 3, 2013), http://www.thenation.com/article/i-shattered-my-leg-ncaatournament-and-all-i-got-was-lousy-t-shirt/. 5. Ware later transferred. 6. Meghan Walsh, ‘I Trusted ‘Em’: When NCAA Schools Abandon Their Injured Athletes, T he Atlantic, (May 1, 2013), http://www.theatlantic.com/entertainment/archive/2013/05/i-trustedem-when-ncaa-schools-abandon-their-injured-athletes/275407/.

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by the Kansas City Chiefs. During team physicals, Doughty was told that he had a cervical spine injury, meaning that he would never be able to play football again. As devastating as this was to Doughty, the reaction from South Carolina compounded the injury. Though the NCAA does provide catastrophic injury insurance to athletes whose medical costs exceed $90,000, the surgery Doughty needed ended up costing around $20,000. South Carolina refused to readmit Doughty so that he could finish his degree and would not pay for the surgery. Doughty never received the operation and is now on disability. Kyle Hardrick played basketball for the University of Oklahoma on scholarship starting in 2009 and was injured during one of their practice sessions. After being cleared by team doctors and eventually forced to the sidelines due to immense pain, Hardrick’s mother received a call asking for payment for an MRI that showed a torn meniscus. Oklahoma team doctors disputed the MRI and slowly pushed him away from the team. He eventually received surgery thanks to his father’s military insurance and finally decided to transfer. During his last summer of classes at Oklahoma, he received a tuition bill with a letter notifying him of his cancelled scholarship. These incidences represent student-athlete injury cases that do not make national headlines but are nonetheless utterly unacceptable. Doughty gave nearly four years to his college football program yet the school missed a careerending injury, refused to pay for his surgery and would not readmit him in order to finish his degree. Hardrick was pushed away from his team after an injury that was misdiagnosed and would have been unable to afford surgery without his parent’s medical insurance. Though these events only affect a minority of all student-athletes, it is shocking that athletes on full scholarships would be treated so poorly by their home institutions. These cases are a stain on the reputation of these two universities as well as the NCAA as a whole, especially considering the lack of compensation and collective bargaining available in the college-athlete relationship. The New York Times has also investigated student-athletes burdened with sports-related injury costs, including one individual who had $80,000 in medical bills. 7 The Times found that while some schools provided premium healthcare for their student-athletes, it was left up to the ethos of each university to decide how much they were willing to pay for medical coverage. The chairman of the NCAA’s legislative council is quoted as saying that “the 7. Kristina Peterson, College Athletes Stuck With the Bill After Injuries, T he New York T imes, (July 15, 2009), http://www.nytimes.com/2009/07/16/sports/16athletes.html?pagewanted=all.

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only way to increase coverage would be to make it mandatory,” but cites the overall costs of this legislation as too much for many schools. 8 Most news articles concerning injured student-athletes with high medical costs also made a point to remind readers that single-year scholarships can be revoked for any reason by their universities. Since the NCAA denies student-athletes any type of collective bargaining power or workers compensation due to their amateur status, their stance regarding the expenses of healthcare is ethically untenable and must be changed. B. Multi-year Scholarship Allowance The NCAA banned multiyear scholarships from 1973 to 2012 and was only able to uphold legislation in favor of multiyear sc holarships by the slimmest of margins. In February of 2012, 62.12 percent of Division I schools voted to strike down the new rules, just under the 62.5 percent needed to override the Board of Directors new rules. 9 Before the legislation, scholarships worked on an annually renewable basis through which students who became injured were at risk of losing their scholarships and being forced to transfer or drop out of school due to financial issues. Now, multiyear scholarships may be offered, although even with the new rules the vast majority of Division I schools either do not offer multiyear scholarships or only offer them to a small minority of their student-athletes. 10 Most schools choose not to commit to their athletes for four years because of the extra guaranteed cost and the potential for injuries, which goes against the purpose of universities. Schools should expect that each student-athlete graduate with a degree, rather than worrying about injuries derailing their playing career and costing the school extra money. In August of 2014, the NCAA announced further legislation that benefited student-athletes, though only those in the Power 5 Conferences. The new Division I governance structure allows much more autonomy for the Big 10, Big 12, Atlantic Coast Conference (ACC), Southeastern Conference (SEC) and PAC-12 conferences to create their own rules in a variety of areas, including athletic scholarships. Although this change does not affect all student-athletes, it marks a first step toward guaranteed multiyear scholarships for all student-

8. Id. 9. Hosick, supra. 10. Jon Solomon, Schools can give out 4-year athletic scholarships but many don’t, CBS Sports, (September 16, 2014), http://www.cbssports.com/collegefootball/writer/jon solomon/24711067/ schools-can-ive-out-4-year-scholarships-to-athletes-but-many-don’t.

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athletes who are offered aid. The new Power Five autonomy guidelines let eac h conference decide how student-athlete benefits will be handled, allowing conferences with a greater revenue stream to enhance student-athlete benefits while universities with much smaller athletic budgets will not be dragged down by increased costs. The surface-level intent behind this legislation is to support student-athletes while not burdening small programs, but the implicit effects may reduce competitiveness throughout Division I athletics and support only a small percentage of Division I athletes. One month after the autonomy legislation was proposed, the Big Ten decided in favor of new rules that guarantee four-year scholarships to all student-athletes within the conference and allow them to return to finish their degree if they leave for a “bona fide” reason. 11 A couple of weeks later, the PAC-12 passed a similar proposal that built on the Big Ten rules, mandating four-year scholarships as well as covering sports-related medical expenses for up to four years after the student leaves the university. 12 Although the rule changes are reflective of only two individual conferences and could have been passed without the NCAA autonomy plan, they represent a progressive trend toward student-athlete benefits. Both the conference rules and the NCAA autonomy legislation also promise increased representation of student-athletes, though their legitimate power in decision-making processes is yet to be fully determined. The Big Ten and PAC-12 legislation show that although universities can make efforts to provide greater benefits for their athletes, most do not initiate such provisions. The onus then moves to the NCAA to pass and enforce comprehensive legislation that will provide protection to all studentathletes. C. NCAA and Anti-Trust Lawsuits The NCAA has recently been the defendant in multiple independent lawsuits regarding student-athlete compensation, each case citing the Sherman Anti-Trust Act of 1890. The Sherman Act’s purpose was to reduce monopolization and trade restraints, partly through investigating the lack of inter-firm competition due to price-fixing and a defendant’s overwhelming

11. Sports Illustrated Wire, Big Ten to guarantee scholarships, allow athletes to return to school, Sports Illustrated, (October 8, 2014), http://www.si.com/college-football/2014/10/08/bigten-guarantee-scholarships. 12. Pac-12 Conference, supra.

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market power. 13 The act also prohibits the attempted monopolization of commerce inside the U.S and declares that any injured party is entitled to treble damages. 14 White v NCAA is the first relevant lawsuit that sued the NCAA for increased scholarship funds, specifically providing full cost of attendance compensation to athletes on scholarship, rather than “grant-in-aid” that was calculated by the NCAA. 15 The plaintiffs argued that limitations on scholarships provided by each university “imposed a horizontal restraint on competition”16 , and “deny a legitimate share of the tremendous benefits of their enterprise to the student athletes who make the big business of big-time college sports possible.”17 The plaintiffs focused on defining college football and men’s basketball as two commercial markets 18 , which placed NCAA actions under the Sherman Act’s jurisdiction. The class-action suit was settled before trial as the NCAA’s recognized that the plaintiff had a viable complaint under antitrust law, specifically Section 1 of the Sherman Act, 15 U.S.C. § 1. The 2012 case of Agnew v NCAA, however, was ruled in favor of the NCAA. The complaint argued that limits on scholarships at the time, such as the limited number offered and their one-year restrictions, constituted a “blatant price-fixing agreement” between member institutions of the NCAA19 The dismissal decision stated that the plaintiff did not adequately argue that a commercial market existed for bachelor degrees, or that student-athletes defined a labor market. The plaintiffs argued that NCAA regulations prevented them from obtaining a scholarship equivalent to the full cost of completing a four-year degree. The plaintiffs specifically cited the NCAA’s one-year scholarship limit (which is no longer in effect) and the cap on the number of scholarships each university is allowed to give out each year. In order to sue the NCAA using the Sherman Act, commercial markets must be defined by the plaintiff under a Rule of Reason analysis, as is the standard in Sherman cases. The plaintiffs needed to identify a relevant market that was improperly 13. Neil Gibson, NCAA Scholarship Restrictions as Anticompetitive Measures: The OneYear Rule and Scholarship Caps as Avenues for Antitrust Society, 3 Wm. & Mary Bus. L. Rev. 203 (2012). 14. Legal Information Institute’s Legal Dictionary, available at http://www.law.cornell.edu/wex/sher-man_antiturst_act. 15. Joel G. Maxcy and Cyntrice T homas, White v. NCAA: A Chink in the Antiturst Armor, 21:1, Journal of Legal Aspects of Sports, 75, 2011. 16. Id. 17. John White v. NCAA, (C.D. Cal. 2006). 18. Maxcy, supra. 19. Agnew v. NCAA, (S.D. Ind. 2011).

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restrained. The plaintiff’s attempted to argue that a so-called “quick-look” approach20 should be used by the court and “absolves them of the burden of describing a relevant market on which the Bylaws have had an anticompetitive effect.”21 The Appeals Court found that the quotes used by the plaintiffs were taken out of context. They stated the “quick-look” analysis is used when it is unnecessary to show that a defendant wields market power, but does not absolve the fact that there needs to be a relevant market in the first place. The plaintiff must be able to define a relevant commercial market in order to implicate the Sherman Act and in appeal the plaintiffs were unable to convince the court that such a market existed. 22 The NCAA’s commitment to amateurism regarding student-athletes and the subsequent lack of a defined commercial market for labor or bachelor degrees made it difficult to use the Sherman Act for student-athlete plaintiffs, as seen in Agnew v NCAA. White v NCAA was an exception because full-ride scholarships were not actually covering the basic costs of attendance at a university; even then it was not clear if the court would rule in the plaintiff’s favor, though the NCAA thought there was enough risk that a settlement was preferred to trial. After the relative failures of both White v NCAA and Agnew v NCAA, O’Bannon v NCAA seemed to mark a critical turning point in case law as the plaintiff successfully sued the NCAA using the Sherman Act. The complaint in O’Bannon v NCAA argued that the NCAA’s amateurism model “has unreasonably and illegally restrained trade” and that the NCAA operates “an illegal horizontal cartel consisting of its member schools and conferences.” 23 The plaintiffs specifically argued that the NCAA was illegally prohibiting its member schools from “giving student athletes up to the full cost of attendance at their respective schools.”24 The court found that “the NCAA’s amateurism rules were an unlawful restraint of trade in violation of Section I of the Sherman Antitrust Act” and that universities must be allowed to give their 20. T he “ quick-look” approach began in (Nat ’l Soc’y of Prof’l Engineers v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978)) and is a type of analysis that is used when “ an observer with even a rudimentary understanding of economics could conclude that the arrangements in question would have an anticompetitive effect on customers and markets. ” Citation here is Agnew v NCAA Court of Appeals decision citing (Cal. Dental, 526 U.S. at 770, 119 S.Ct. 1604). 21. Gibson, supra. 22. Id. 23. O’Bannon v. NCAA, (N.D. Cal. 2009). 24. O’Bannon v. NCAA, App. Ct., 17 (9 th Cir. 2015).

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student-athletes scholarships that cover the full cost of attendance as well as “up to $5000 per year in deferred compensation.” The potential $5000 per year in deferred compensation, however, was struck down in appeal. 25 Chief Judge Thomas of the appeals panel dissented in part, disagreeing with the majority conclusion that the $5000 in deferred payment was erroneous. Thomas found there to be no evidence that a $5000 deferred payment would “significantly reduce consumer demand for college sports” as “amateurism is relevant only insofar as it relates to consumer interest” when considering antitrust law. 26 Although the panel chose not to allow an additional payment beyond cost of attendance, the dissension by Chief Judge Thomas and the partial confirmation of the initial ruling that favored the plaintiff showed movement by the courts in favor of the student-athlete. Specifically, the court found that the NCAA was not exempt from antitrust scrutiny and, in applying the Rule of Reason, “the NCAA’s compensation rules potentially restrained competition.”27 This decision created precedent for suing the NCAA under the Sherman Act and found that the NCAA’s lack of compensation was anticompetitive. Although the court’s ruling in O’Bannon v NCAA did not go far enough in defining what compensation should entail for student-athletes, it laid the foundation for later cases, such as Jenkins v NCAA, to use the court’s ruling in order to gain muc h needed benefits for student-athletes. The most recent case, Jenkins v NCAA, is currently being argued in front of the same judge that ruled in favor of the plaintiffs in O’Bannon v NCAA. The case was granted class action status in December 2015 28 and is often publicized as the case that could end amateurism in college sports. The complaint states in part that the NCAA’s “agreed upon rules impose an artificial and unlawful ceiling on the renumeration that players may receive for their services as football and men’s basketball players in the multibillion dollar college sports industry.” The complaint, in accordance with the Sherman Act, attempts to define markets in both college football and men’s basketball. The plaintiffs also argue that the NCAA price-fixes player compensation, bringing the complaint under the Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, the same

25. O’Bannon v. NCAA, U.S. 1,73 (2015). 26. Id at 68. 27. O’Bannon v. NCAA, App. Ct., 17 (9 th Cir. 2015). 28. Jon Solomon, NCAA appeals class-action status of lawsuits to pay players, CBS Sports, (December 19, 2015), http://www.cbssports.com/collegefootball/writer/jon -solomon/25419594/ncaa-appeals-class-action-status-of-lawsuits-to-pay-players.

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section that was used in White v NCAA and Agnew v NCAA. Though the media has covered the case as one that will bring down the current NCAA amateurism model29 , several issues are yet to be determined. Questions remain about how the plaintiffs will be compensated for their time as student-athletes, how possible rulings will affect NCAA rules regarding compensation, scholarships and healthcare, 30 and whether or not the ruling will prove beneficial for all student-athletes and not just football and men’s basketball players. Despite the ongoing status of Jenkins v NCAA, the case, along with O’Bannon v NCAA, exemplifies a new trend in support of plaintiffs in such matters. D. Student-Athletes and Unionization The Northwestern University football team’s attempt to unionize has been the most widely publicized effort by student-athletes to gain greater benefits from their university. The possibility of collective bargaining brought the issue of student-athlete compensation to the national stage and showed a lack of consensus among lawyers as well as journalists. In March of 2014, a regional director of the National Labor Relations Board (NLRB) in Chicago ruled that student-athletes on scholarships were employees of the university. 31 The national board later dismissed the petition. The NLRB decided against exerting its jurisdiction in the case because “it would not promote stability in labor relations” and further cited the “novel and unique circumstances” of the case. The Board said that the issue of whether or not student-athletes are statutory employees “is an issue we do not decide”, and if they were statutory employees “it would not effectuate the policies of the Act 32 to assert jurisdiction.”33 It als o 29. Barry Petchesky, The NCAA-Killing Lawsuit Might Finally Be Here, Deadspin, (March 17, 2014), http://deadspin.com/this-is-how-you-kill-the-ncaa-1538631479/1545583470. 30. T here is no evidence that a ruling in favor of the Plaintiffs will improve healthcare benefits for football or men’s basketball student-athletes, let alone all those participating in Division I athletics. T his marks one of the main shortcomings of such cases as they look to st r ik e down NCAA caps on compensation without investigating the effects, or lack thereof, o n the majority of Division I athletics. Below, this article examines why unionization is the wrong answer for student -athletes, and a ruling in favor of the Plaintiffs here would allow similarly unlimited bargaining for a select few. 31. Ben Strauss and Steve Eder, College Players Granted Right to Form Union, T he New York T imes, (March 26, 2014), http://www.nytimes.com/2014/03/27/sports/ncaafootball/national labor-relations-board-rules-northwestern-players-are-employees-and-can-unionize.html. 32. Referring to the National Labor Relations Act. 33. “ Board Unanimously Decides to Decline Jurisdiction in Northwestern Case,” National Labor Rleations Board, http://www.nlrb.gov/news-outreach/news-story/board=unanimouslydecides-decline-jurisdiction-northwestern-case.

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stated that “the Board cannot regulate most FBS teams” due to specific state laws. 34 One key part to the NLRB ruling was that the board explicitly stated their conclusion “without deciding whether the scholarship players are employees”, 35 possibly leaving the door open for future petitions. This ruling ends the debate for the NLRB supporting student-athlete unions, at least in the short term, but the question of student-athletes fighting for better benefits remains. There are a variety of reasons as to why unionization may not be the solution to enhancing athletic scholarships and healthcare but that does not mean that the status quo should remain intact. Michael Cianfichi recently wrote a relevant law article36 that argues against the unionization of student-athletes, citing the true purpose of athletic scholarships as allowing the student-athlete the best opportunity for “obtaining an education and degree.” Cianfichi’s article was written to refute the NLRB Regional Director’s decision that Northwestern University football players should be allowed to unionize. It argues that the NLRB should either “hold that studentathletes are not employees under Section 2(3) 37 or, in the alternative, vacate the RD’s ruling and decline jurisdiction over the matter”38 in part because such a ruling would create “separate classes of players and students with different rights within the same university.” Cianfichi recognizes that the goals of reforming the “lackluster education standards and. . . the exploitation of student athletes are necessary and legitimate,” but refutes the claim that allowing Division I athletes to unionize is the best way to support all student-athletes. Allowing student-athletes to unionize would only exacerbate the lack of parity in collegiate athletics, enabling powerhouse schools in football and men’s basketball to receive a disproportionate amount of revenue for their programs since the best athletes would join the universities with the most available compensation. Unionization in this context also only acts as a potential solution to problems regarding student-athlete reimbursement; it does not necessarily provide increased healthcare benefits, protection from medical expenses, or guarantees concerning scholarships and student-athletes’ ability to 34. Id. 35. National Labor Relations Board, http://www.nlrb.gov. 36. Michael P. Cianfichi, Varisty Blues: Student Athlete Unionization is the Wrong Way Forward to Reform Collegiate Athletics, 74:3, Md. L. Review, 2015. 37. Section 2(3) of the National Labor Relations Act (NLRA). T his section concerns the definition of the term “ employee” and it is unclear whether or not student -athletes could be held as employees of the university under this definition. T he Board declined jurisdiction, for reasons explained above. 38. Ultimately the Board decided to decline jurisdiction.

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earn bachelor degrees. The unionization of only certain athletes would lead to increased class stratification within Division I athletics, thus improving benefits for only the top percent of student-athletes. Another law article written in 2006 by McCormick and McCormick takes the opposite stance, arguing that student-athletes are employees based on the common law definition. The authors state that the 1947 Taft-Hartley Amendments to the National Labor Relations Act (NLRA) “emphatically endorsed the common law right of control test 39 as the proper measure of statutory coverage” and finds that under these legal standards “certain university athletes are employees.” Much of their argument is supported by cases in which graduate student teaching assistants gained unionization and collective bargaining rights as employees of their respective universities. However, cases regarding graduate students are vastly different than those concerning student-athletes. For one, under state law most graduate students at public universities are treated equally as employees of the university and are given the same pay and benefits, as collectively bargained by the United Auto Workers Union (UAW). The NLRB’s decisions concerning the unionization of graduate students at private universities has also flipped from NYU in 2000 to the most recent Brown decision in 200440 that took away their employee status at private schools. In both public and private graduate student cases, the students are grouped as a whole and treated as equals in regard to the law. The current issue is very different; if student-athletes were allowed to unionize they would be divided into classes that would fundamentally change the structure of college athletics into a type of competitive labor market that is focused on production and revenue rather than student-athlete education or well-being. This is clearly not the solution to student-athlete compensation and allowing football players to unionize could pose as a lackluster stand-in for meaningful change in favor of all student-athletes.

39. T he common law right of control test is used to decide whether or not an employer employee relationship exists through the use of common law and a list of factors that can determine this relationship. T hese factors include but are not limited to instruction or directio n o f a worker, training, hiring of assistants, hours of work, right to discharge, and right to quit at any time. 40. T he Brown decision defined graduate students’ relationships with their schools as primarily academic (as opposed to economic) at private universities.

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III. SOLUTIONS A. Ethical Impetus on Universities While student-athletes have been turned away by the NLRB, the success in the O’Bannon v NCAA lawsuit and the continued Jenkins v NCAA class action lawsuit provide possible avenues toward successfully gaining benefits in scholarship and healthcare without collective bargaining. On the other hand, a national, comprehensive packet of legislation could not only provide better healthcare, some compensation and a more well-rounded educational experience, but also support all Division I athletes instead of just the men at the top of the football and basketball divisions. College athletics are not professional sports; they promote higher education and give student-athletes opportunities to attend universities they may not have had access to otherwise. Division I athletics should not be based on a capitalist model where the top athletic schools receive disproportionate gains from their programs. Rather, there should be an effort to lift all college athletic programs up to a higher national standard. Many professions have legal ethics that make them bound by law to follow a certain ethical code, usually to protect the rights of those who hire the professional. Lawyers and judges, for example, are held to the legal ethics decided by their respective states. They can be disbarred for violating these codes and are held to high ethical standards in conducting their work. Universities across the country have mission statements that focus on the enhancement of knowledge and the “best possible educational experience� 41 for all their students in order to service the broader community. Collegiate athletics will never have a stringent code of ethics like those in law and medicine that would hold universities to ethical imperatives, but currently there is a similar type of moral obligation in place for individual student-athletes. Universities hold their student-athletes to codes of conduct that go above and beyond normal university rules for students who do not participate in athletics. These extra moral codes placed on the student-athletes, which have penalties including the loss of scholarships and expulsion from the team if violated, may be reason to suggest that schools owe their student-athletes above and beyond the normal cost of attendance that is usually provided through scholarships. This is extremely important when considering healthcare for injuries sustained 41. T he University of Oklahoma Mission http://www.ou.edu/publicaffairs/mediacenter/Mission Statement.html.

Statement.

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while playing for the college as well as small deferred compensation. Studentathletes working under different standards than their peers deserve to be protected through healthcare and guaranteed scholarships, while those earning millions in revenue for their school should also be given some deferred monetary benefit. The general populations of students at all universities are supposedly held to a high moral standard but there are few institutions in place to punish them for actions that are morally dubious. This is not the case for many studentathletes. Some universities, such as UCLA, have a separate Student-Athlete Code of Conduct that is additional to the student code of conduct. Studentathletes can also be kicked off the team for breaking any team rules, all at the discretion of the head coach. At UCLA, one of the added facets to studentathlete conduct is appearance, 42 which maintains that student-athletes must be “well-groomed in terms of their hair, facial hair and makeup”, especially when traveling as representatives of the university. While few would say that these rules are overbearing or place a hardship on the student, the fact remains that student-athletes at UCLA, as well as other universities, are held to a higher standard than the average student. Student-athletes working under different standards than their peers deserve to be protected through healthcare and guaranteed scholarships. They represent the university in the eyes of fans and peers, and often earn millions of dollars in revenue. Universities should not be allowed to treat these student-athletes as expendable parts in their athletic department; it is imperative that they be rewarded for their hard work and dedication through protection in health care and some deferred monetary compensation for athletes competing at the highest level. The universities themselves, on the other hand, are held to no moral standard or commitment concerning their treatment of student-athletes. While some athletic conferences, such as the Big Ten and PAC-12, have taken their own initiative to improve the benefits provided to student-athletes, these actions are not widespread. As seen in the cases of Doughty and Hardrick, universities are able to ignore the complaints or hardships of their athletes without repercussion. The NCAA does have “Core Values” that mark commitments to ideals such as “the highest levels of integrity” in its member institutions, but it does little to support these values where individual studentathletes are concerned. Student-athletes also show commitment to their university through NCAA

42.

2015-2016 UCLA Student -Athlete Handbook & Day Planner, p. 13.

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transfer rules that force them to sit out one year if they move schools. 43 This creates an incentive for student-athletes to stay at their original institution. Universities are often hesitant to offer four-year scholarships, in part because they represent a big commitment to one student-athlete who may or may not be a collegiate star in their sport. Guaranteed four-year scholarships, such as thos e now offered by all schools in the Big Ten and PAC-12 conferences, show much needed reciprocation in commitment from schools back to their studentathletes. The investigation of codes of conduct and the moral obligation of universities may seem to stray from NCAA and athletic conference legislation but the two are inexorably linked. The junction of law and morality applies here; solutions to the unevenness of the athlete-university relationship can be found through exploration of this intersection. The purpose of both law and morality are to guide our behaviors and in this setting new laws are needed to guide universities in improving benefits for student-athletes on scholarship. B. Intersection of Morality and Law According to Steven Shavell of Harvard Law School, law guides behavior “through the threat of sanctions” while morality “involves incentives of sorts” such as guilt and praise. 44 Shavell goes further and describes the optimal domains of law and morality and considers environments or situations when both law and morality are needed. 45 Morality is preferred to law when two conditions are met: “the expected private gain from undesirable conduct is not too great, and the expected harm due to such conduct is also not too great.” 46 This is how the NCAA perceives the landscape of imbalance between universities and their student-athletes: the benefits of each athlete should be left up to their university, a stance exemplified by the new Power 5 autonomy legislation that passes the moral imperative to individual conferences. NCAA lawyers recently stated that the NCAA does not have a “legal duty to protect student athletes” but that each individual university “is responsible for protecting the health of its student athletes.”47

43. NCAA, Want to transfer?, http://www.ncaa.org/student -athletes/current/want -transfer. 44. Steven Shavell, Law Versus Morality as Regulators of Conduct, 4 Am. L. & Econ. Rev. 227, (2002). 45. Id. at 243. 46. Id. at 244. 47. Ben Strauss, A Fight to Keep College Athletes From the Pain of Injury Costs, T he New

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While the Big Ten and PAC-12 have stepped up and provided for their student-athletes, the majority of those in the Power 5 conferences and the rest of Division I athletics are left wanting. This is because the private gain from amoral conduct, as seen in the cases of the University of South Carolina and University of Oklahoma, is too great for moral sanctions to have effect. If universities don’t need to pay the extra costs of extended health care coverage, four-year scholarships and small amounts of deferred compensation, why would they? The expense to cover all their student-athletes is high and many institutional mandates involve cutting costs rather than increasing them. The variance in health benefits between Division I athletes and the lack of NCAA oversight regarding student-athlete healthcare is ridiculous. Unionization is not a solution because it would maintain a discrepancy between the top athletes in football and men’s basketball programs and the rest of student-athletes, leaving the latter with weaker healthcare benefits and protection. The NCAA sees this “undesirable conduct”, namely poor treatment of student-athletes, as only mildly harmful to the collegiate athletics landscape. This is because those student-athletes stuck with massive health care bills or those who are forced to leave school after losing their scholarship represent the minority of all Division I athletes and the NCAA has no legal obligation to compensate athletes making huge revenues for their schools. Their current policy of turning a blind eye to such blatant misconduct by university athletics programs is morally untenable, yet nonetheless it is currently legal in the context of federal court as student-athlete plaintiffs still struggle to prove that the NCAA acts as an anticompetitive monopoly. The next step is to identify the situation in which law becomes optimal. It is clear that the “expected private gains” are so large that moral sanctions are not enough to prevent the bad action, namely the restriction of student-athlete benefits and the lack of oversight by the NCAA. It is also evident that the expected harm from this conduct is equally large, as it can leave studentathletes out of school, without a degree and with mounting debt from health care costs. Therefore these issues must be resolved with new legislation. The NCAA must take legislative action to solve the health care and compensation issues that currently haunt the collegiate sports system. The PAC-12 conference in particular has already set an impressive model for how to properly support their student-athletes. As previously stated, it contains guaranteed four-year scholarships, extended healthcare after leaving the university, and the York T imes, (April 24, 2014), http://www.nytimes.com/2014/04/25/sports/a -fight-to-keepcollege-athletes-from-the-pain-of-injury-costs.html.

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opportunity to return to finish their degree. The NCAA should mandate that all athletic scholarships in Division I athletics be guaranteed for four years and that student-athletes are able to return to finish their degree if they decide to turn professional before graduation. The NCAA should also guarantee that all student-athletes on scholarship will receive healthcare paid for by the university if there is financial need, 48 and that it will cover health care costs in full for injuries sustained while playing their respective sport, up through the lifetime of the injury. These two mandates alone will provide all Division I athletes with the best opportunity to graduate with a four-year degree, as is the actual purpose of a college athletic scholarship. In addition, rather than allowing student-athletes to unionize, the federal government should allow small amounts of deferred compensation, up to $10,000 a year, for some student-athletes. This would allow football and men’s basketball players to receive some additional compensation for the massive amounts of revenue they earn for their university while also preventing the complete stratification of student-athletes within and across schools, as would be the case with collective bargaining. The amount of $10,000 may seem high, but in most cases that would be less than one year of tuition at the university. In total, these three changes to the college sports landscape would provide extra support to all student-athletes on scholarship while also recognizing the enormous revenues many universities make through their football and men’s basketball programs. IV. CONCLUSION The moral impetus rests with the NCAA. The focus in this article has been on the morality of individuals: individual universities as well as the NCAA as a governing body. Ethics are more often applied to social systems, and can be defined as what “people owe themselves and one another.”49 The ethical conversation regarding entire college athletics system should focus on what universities owe their students, rather than vice versa. The student-athlete provides great benefits to the university; UCLA, for instance, has one of the greatest college sports histories in the US and was again the most applied to

48. As determined by the federal government through the Free Application for Federal Student Aid (FAFSA) application. 49. Legal Information Institute’s Legal Dictionary, available at https://www.law.cornell.edu/wex/ethics.

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college in the country this year. 50 The most powerful members in the system, universities and the NCAA, owe more to their student-athletes than is currently being provided. Luckily, they also hold the power to end this inequality by passing new legislation that shows their unequivocal support for student-athlete health, well-being and ultimate success. As shown, there is an extreme imbalance between the power and revenue of universities and the treatment of Division I student-athletes. Some studentathletes are left with enormous healthcare costs and leave school without a degree, while others generate millions of dollars each year for their school and are still stuck under one-year renewable scholarships. Misguided attempts at unionization have failed and it is possible that current cases, like Jenkins v NCAA, would only worsen the lack of parity in the treatment of different student-athletes. Universities’ moral incentives are also not enough to act as a catalyst for change; it is time for the NCAA to create comprehensive legislation that supports, protects, and benefits all Division I student-athletes. The NCAA must pass legislation mandating that all scholarships be guaranteed for four years (and retained if the student leaves the university in less that four years), that healthcare will be covered by the university if there is financial need, that costs for injuries which occur in school will be covered through their lifetime, and that student-athletes at the top of their sports be allowed up to $10,000 a year in deferred compensation. It is time that the NCAA and universities across the country return the focus to the most important part of college sports: the student-athletes.

50. ABC News, UC Schools Get Record Number of Applicants; UCLA at Top of List, ABC News, (January 11, 2016), http://abc7.com/education/uc-schools-get-record-number-ofapplicants;-ucla-tops-list/1155007/.

THE CASE FOR LEGALIZATION; THE MORAL AND ECONOMIC DILEMMA OF PROSTITUTION Griffin Glenn

ABSTRACT Prostitution, often dubbed the world’s oldest profession, has existed for thousands of years, and still plays a large role in American society. Despite its prominent role in the American underground economy, the current state of the commercial sex industry leaves much to be desired from a policy standpoint. The criminalization policy that the United States currently employs has led to difficult and dangerous working conditions for sex workers and inhibits potential economic gains from the industry. There will always be a demand for prostitution, whether it is legal or illegal, so prosecuting sex workers and solicitors has become a moot point. The economic benefits of regulated legalization far outweigh any negative effects of prostitution and, in fact, the criminalization of sex work has done far more harm than good to American society. By putting a forth a regulated model of legal prostitution, the United States could potentially eliminate many of the negatives that affect unrelated parties, thus internalizing the externalities. By making the industry legal, organized crime syndicates and other underground organizations involved in prostitution would be driven out of the market by legitimate businesses offering the same product, thus taking the power away from criminals. This act would Griffin Glenn is a third year Business Economics major. He is interested in attending law school after graduation. Editor: Emily Kohlheim is a second year political science major at UCLA. She plans on attending law school after graduation.

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lead to less gun violence and ancillary crime in the affected communities. In addition, regulations could mandate that sex workers use disease preventatives and contraceptives, such as condoms, that would limit the spread of sexually transmitted diseases and other infectious diseases. In a legal and regulated environment, sex workers would also have access to healthcare and medical testing, thus improving the health of the general public. In addition, the legalization of sex work would lead to greater gender and income equality. By legalizing the act, the government would help to remove the stigma associated with profession, empowering sex workers and allowing them to be seen as simply skilled workers. It would also be expanding the constitutional freedoms of women in this country, bolstering their freedom to pursue whatever occupation they desire and giving them agency over their ow n bodies. Sex work also offers better wages and greater opportunities for impoverished women with few options on the path towards prosperity. The legalization of prostitution would have other economic impacts such as increased output, greater tax revenue, and lower government expediture on enforcement and incarceration. Legalizing the commercial sex industry would allow it to prosper and grow in a regulated environment, adding jobs and output to the US economy. Making the industry legitimate would also open it up to be taxed at the state and federal level, which could add an estimated value of between $25 and $50 billion in tax revenue nationally. Legalization would also have the added benefit of decreasing the amount that the government spends on law enforcement. The government would spend hundreds of millions less pursuing, arresting, and incarcerating sex workers and pimps and could give greater attention to crimes that have a larger negative impact on society. While the model for how to best institute legalization in the United States is certainly up for debate, the two most popular models appear to be the Netherlands and Sweden. In the Netherlands, they offer a regulated form of s ex work where it is legal to buy and sell, but illegal to pimp. In Sweden, it is only legal to sell, which aims to lower the overall level of prostitution by attacking the demand. This paper will argue that the Netherlands is a superior model mainly because it offers safer conditions for sex workers and doesn’t function to restrict adult citizens from engaging in a consensual act that doesn’t hurt others.

I. INTERNALIZING THE EXTERNALITIES OF THE SEX WORK INDUSTRY Through regulated legalization, the United States government would have

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the power to eliminate or greatly diminish the externalities associated with sex work. Arguably the most prominent issues of underground sex work are the externalities associated with the industry. The most basic definition of an externality is the consequence of an activity experienced by unrelated third parties. A major example of an externality related to the industry is the way in which prostitution can lead to the deterioration of communities. 1 For example, prostitution often leads to increased gun violence and increases in ancillary crime in affected communities.11 Another example of an externality related to the sex work industry is a prostitute who becomes infected with a sexually transmitted disease or other infectious diseases. She or he then, due to the nature of the profession, can increase the rate at which the disease is spread throughout the community in which she or he works. In fact, a 2012 government report entitled A National Overview of Prostitution and Sex Trafficking Demand Reduction Efforts concluded that providers of commerc ial sex are between five and 60 times more likely to be afflicted with an infectious disease.1 There are arguments to be made on both sides of the aisle as to how to solve these issues, with one end of the spectrum arguing that the best w ay to eliminate these externalities is to attack the pimps, traffickers, and prostitutes in a court of law. However, I would argue that this is easier said than done, and that the best solution to mitigating the externalities of sex work is to legalize and regulate the industry, treating it like any other commercial business. In order to minimize the effects of the aforementioned externalities of prostitution, I believe that regulated legalization is the most pragmatic option. While many on the other side of the spectrum would argue that eliminating the industry altogether is the best way to minimize the effects on unrelated third parties, my argument is rooted in the simple idea that this is not feasible for the government to do without allocating substantial resources to the cause. The simple laws of supply and demand dictate that the underground commercial sex market is much like the market for any other commodity.1 Although this idea grossly oversimplifies the sophistication of the sex work industry, it does help illustrate a central problem of policing prostitution; there will always be a demand for prostitution, therefore, there will also always be suppliers. Several polls conducted amongst men in the U.S. found that between 10% and 20% of men have exchanged sex for money at some point in their lives. 2 Based on the 1. Michael Shively, Ph.D. et al, A National Overview of Prostitution and Sex Trafficking Demand Reduction Efforts, Final Report, Abt Associates, Inc, (Apr. 30, 2012), https://www.ncjrs.gov/pdffiles1/nij/grants/238796.pdf. 2. Martin Monto, Focusing on the Clients of Street Prostitutes: A Creative Approach to

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basic economic principle that whatever is demanded will be supplied, given the size of the demand, it is safe to presume there will be a supply of sex work, whether it is illegal or not. Regulated legal prostitution in the U.S. could function to internalize the externalities of the underground sex economy in multiple ways. The first, and arguably the most significant, would be to limit violence, drug usage, and ancillary crime that often coincide with the industry. By criminalizing prostitution, the U.S. Government has essentially been empowering criminals like sex traffickers and pimps along with their guns. 3 Throughout history, when a highly demanded vice is outlawed, it doesn’t significantly lower the incidence rates, it merely opens up a void that is filled by members of the criminal underworld, as seen during the Prohibition era. During this period, violent men like Al Capone earned tens of millions of dollars annually from the manufacture and sale of alcohol. 4 In the sex work report Estimating the Size and Structure of Underground Commercial Sex Economy in Eight Major US Cities; the researchers found that gang involvement in sex work has been consistently increasing in 5 of the 8 major cities, further indicating the significant role that prostitution plays in the criminal underground economy and how it empowers criminals rather than the sex workers. 5 In addition, regulated legalization could help contain the spread of infectious disease that is so pervasive within the sex work industry. Under the current laws, sex workers are actually incentivized to not use protection, as the going rate for a prostitute’s service is substantially higher when a condom is n’t used. 6 In fact, according to the prostitution studies Rao et al (2003) and Gertler et al (2005), on average, sex workers only use condoms about 25% of the time.

Reducing Violence Against Women-Summary Report, MD: National Criminal Justice Reference Service, 1999. 3. Martha Nussbaum, Whether from Reason or Prejudice: Taking Money for Bodily Services. Vol. 27. U. Chi. Journal of Legal Studies. 1998. 4. Michael Lerner, Prohibition: Unintended Consequences, PBS, (n.d.), http://www.pbs.org/kenburns/prohibition/unintended -consequences/. 5. Meredith Dank, et al, Estimating the Size and Structure of the Underground Commercial SexEconomy in Eight Major US Cities, Urban Institute, (Mar. 12, 2014), http://www.urban.org/research/publication/estimating-size-and-structure-undergroundcommercial-sex-economy-eight-major-us-cities. 6. Vijayendra Rao et al, Sex Workers and the Cost of Safe Sex: T he Compensating Differential for Condom Use Among Calcutta Prostitutes, Vol. 71, Journal of Development Economics, 585-603, 2003. Paul Gertler et al, Risky Business: The Market for Unprotected Commercial Sex, Vol.113, No.3, Journal of Political Economy, 2005.

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In a regulated, legalized environment, regulations mandating that sex workers use some form of protection, such as condoms or other disease preventatives. Providing them with condoms and other contraceptives as well as ensuring safer working conditions would decrease the transmission rates of infectious diseases. Moreover, when the act is legalized, the data suggests that sex workers are more likely to seek medical attention along with increased disease testing. For instance, when prostitution was partially legalized in Rhode Island from 2003 to 2009, the state saw a decline in the number of c ases of gonorrhea. 7

II. GREATER GENDER EQUALITY Although it is true that prostitutes can be both men and women, given that 80% of sex workers are female, legalization can be discussed as mainly a women’s issue. 8 Before discussing the potential benefits legalization of prostitution could offer women, one must first establish the reasons the act is both criminalized and stigmatized in American society. Despite the stigmatization of prostitutes domestically and, to some extent, globally, the occupation draws on many similarities to other forms of skilled labor. In her essay “Whether From Reason or Prejudice”: Taking Money For Bodily Services, Martha Nussbaum compares prostitutes to factory workers, domes tic servants, nightclub singers, professors, masseuses, and colonoscopy artists in order to draw on the numerous similarities between the various jobs. She also does so in order to highlight the main reasons why prostitution is so severely criminalized and stigmatized in the United States. Moreover, these reasons, such as the alleged immorality of pre and extramarital sex, as well as the negative viewpoints toward female sexuality and female sexual independence, are just extensions of the morality argument against prostitution. In many ways, the prostitution debate is analogous to the abortion debate. In the 1972 Supreme Court Case Roe v. Wade, the lead prosecuting attorney Sarah Weddington argued: “We are not here to advocate abortion. We do not ask this Court to rule

7. A Personal Choice, T he Economist, (Aug. 9, 2014), http://www.economist.com/news/leaders/21611063-internet-making-buying-and-selling-sexeasier-and-safer-governments-should-stop. 8. Gus Lubin, There Are 42 Million Prostitutes In The World, And Here’s Where They Live, Business Insider, (Jan. 17, 2012), http://www.businessinsider.com/there-are-42-millionprostitutes-in-the-world-and-heres-where-they-live-2012-1.

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that abortion is good or desirable in any particular situation. We are here to advocate that the decision as to whether or not a particular woman will continue to carry or will terminate a pregnancy is a decision that should be made by that individual. That, in fact, she has a constitutional right to make that decision for herself and that the state has shown no interest in interfering with that decision.”9 Much of the language and rationale from Weddington’s argument can be applied to prostitution. As I established previously, the illegality of prostitution is due mainly to its supposed immorality, which is similar to abortion. Weddington’s quote establishes that morality is inherently subjective and encourages the judges to remove their personal feelings about abortion when determining the legality. Moreover, the logic of the assertion that the government has no interest in blocking one’s constitutional right to terminate a pregnancy can be easily applied to prostitution. Much like the legalization of abortion, legalizing prostitution would give women agency over their bodies. It would not serve as an endorsement from the U.S. government, but it would s ay that the government has no interest in restricting women’s control over their own bodies because legal prostitution does no harm to others. Furthermore, criminalizing prostitution restricts women’s constitutional right to choose how to make their own living, potentially violating numerous constitutional rights ranging from freedom of speech to the freedom of contract. 10 Legal prostitution not only offers expanded constitutional rights for women, but also offers the economic advantages of increased gender equality. For example, legal and government regulated prostitution would provide much safer working conditions for sex workers. As established in the previous section, the high demand for prostitution dictates that there will always be a supply; therefore, legalization will give the government much more control over the industry. However, the current status quo only function to drive the industry underground, marginalizing sex workers. When it is illegal, sex workers are essentially defenseless when physically attacked by either clients or employers; they rarely go to the police due to fear of prosecution. 11 Legalization would provide a safe outlet for women to seek during times of distress. For example, in the Netherlands, where prostitution is legal, sex workers have a call button that notifies the police when they are in trouble w ith clients. Critics of the Netherlands model, which is also similar to the one 9. 10. 11.

Sarah Weddington, Roe v. Wade, 1972. United States vs. T hompson, 458F.Supp.2d730, (N.D. Ind. 2006). Michael Shively, Ph.D., et al, supra.

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practiced in Germany, point to the fact that sex trafficking and pimping still moderately persist in those nations. 12 However, it is a much bigger issue in Germany because the government has not explicitly outlawed pimping. 13 As a result, I would recommend a major regulation outlawing pimping in the United States. This regulation could still be viable because pimps, who are often responsible for a majority of the violence associated with prostitution, are becoming decreasingly important in the sex trade. With the prevalence of various social media outlets, sex workers are becoming more and more independent, no longer relying on pimps and madams for booking. 14 Having said this, sex trafficking continues to be a major problem in countries where sex work is fully legalized and unrestricted. Although sex trafficking has not been greatly diminished in countries where prostitution has been legalized, it has not increased either. A 2008 study conducted in New Zealand, another country where prostitution was legalized in 2003, showed that legalizing sex work did not lead to an increase in sex trafficking. 15 Another gender issue with prostitution is that, during police orchestrated sting operations, charges against sex workers are pursued more often than w ith the male johns. 16 This disparity in the policing of prostitution depicts gender inequality within our justice system. A potential solution to the prostitution issue is one that Sweden implemented in 1999. This legislation made the purchasing of sex illegal, while making the selling of sex legal. 17 The main idea behind this legislation is that prostitution inherently exploits women and that equality cannot be truly attained until it is eradicated. The law functions to

12. A Personal Choice, supra. 13. Nisha Lilia Diu, Welcome to Paradise, T he T elegraph, (2013), http://s.telegraph.co.uk/graphics/projects/welcome-to-paradise/index.htm 14. Id. Amanda Hess, “I Don’t Believe in the Word Pimp”: Sex Work Bosses Attempt to Rebrand, Slate, (Mar. 13, 2014), http://www.slate.com/blogs/xx_factor/2014/03/13/urban_institute_ sex_work_study_pimps_sex_w orkers_child_pornographers_and.html. Steven D. Levitt and Sudhir Alladi Venkatesh, An Empirical Analysis of Street-Level Prostitution, Economics.uchicago.edu, (Sep. 2007), http://economics.uchicago.edu/pdf/Prostitution%205.pdf 15. Lisa Ko, Targeting Sex Buyers, Not Sex Sellers: Arrsting Demand For Prostitution, PBS, (Jan. 23, 2015), http://www.pbs.org/independentlens/blog/targeting-sex-buyers-not-sex-sellersarresting-demand-for-prostitution/. 16. Mike Ludwig, supra. Michael Shively, Ph.D., et al, supra. 17. Marie De Santis, Sweden’s Prostitution Solution: Why Hasn’t Anyone Tried, Women’s Justice Center, (n.d.), http://justicewomen.com/cj_sweden.html

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target the demand rather than the supply; by reducing the number of johns , one reduces the amount of prostitution. 18 The Swedish government has touted this policy as an overwhelming success, effectively reducing demand by more than 40 percent, while also reducing trafficking and street prostitution. However, there are two main issues with the Swedish solution. The first problem is the law asserts that paying for sex is a violent act against women. This statement is true in some circumstances, such as when the sex worker is being forced to engage in this transaction by a john or a third party. However, many on the left argue that paid sex between two consenting adults is not a violent or exploitative act. 19 Even though the Swedish policies have served their purpose in mitigating many of the negative effects of prostitution, they fail in that they continue to treat sex work as an underground activity, making this industry more difficult to police and further stigmatizing the women involved. The second issue is that, although the number of sex workers operating within the country has decreased, the ones who persist have been put in increasingly dangerous situations due to the underground nature of their work. 20 By outlawing the purchase of sex, johns are asking women to perform their jobs in increasingly furtive circumstances, such as getting into a car with a person they just met, circumventing any due diligence. These policies have both made it more difficult for sex workers to combat violence, and to seek medical attention, arguably placing them in more vulnerable situations than ever before. 21 On a more macro scale, outlawing the purchase of sex creates an extremely hostile environment for sex workers, furthering the rampant stigmatization of the women involved in the industry. 22 It is also very difficult for current sex workers to find other sources of income in Sweden, due to its 18. E.H., Why Decriminalizing Sex Work is a Good Idea, T he Economist, (Aug. 18, 2015), http://www.economist.com/blogs/economist -explains/2015/08/economist -explains-13. Marie De Santis, supra. 19. Sex is Their Business, T he Economist, (Sep. 2, 2004), http://www.economist.com/node/3151258. Mike Ludwig, supra. R. Claire Snyder, What is Third-Wave Feminism? A New Directions Essay 189 (Vol. 34, No. 1. 2008). 20. David Crouch, Swedish Prostitution Law T argets Buyers, but Some Say It Hurts Sellers, T he New York T imes, (Mar.14, 2015), http://www.nytimes.com/2015/03/15/world/swedish prostitution-law-targets-buyers-but-some-say-it-hurts-sellers.html?_r=1. 21. Amanda Hess, supra. A Personal Choice, supra. 22. Melinda Chateauvert, What Rights? American Civil Liberties Union, (Mar. 5, 2014), https://www.aclu.org/blog/what -rights.

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lagging economy and high unemployment rate of 8.4 percent.20 Although the Swedish solution may look like a roaring success at first glance, I believe these policies have actually been harmful to sex workers. The plight of sex workers, at its heart, is a women’s issue, and government policies toward sex work have numerous consequences for the women involved. However, when deciding how a government should deal with prostitution, it must weigh both the effect it has on sex workers as well as the female population in general. Thus, the decision between implementing the Swedish model or the Dutch/German model boils down to reducing the amount of prostitution and sex trafficking or providing the greatest level of protection and independence for sex workers, respectively. 23 Feminist scholars seem to be split when it comes to these issues. While third wave feminism claims to be pro sex, there is much contention surrounding pornography, prostitution, and sadomasochism and their relationship to feminism. This schism between scholars, known today as the sex wars, is still an unresolved issue, with some arguing that these promote and fetishize gender inequality in our society and others claiming that any objection to these acts conflict with the central feminist concepts of personal choice and control over one’s body. 24 For example, some feminist theorists believe that receiving breast augmentation is antithetical to feminism because it involves a woman changing herself in order to fit some male dominated ideal of what a woman should look like. While others believe that choice and control over ones body is paramount, so if a woman wants to get her breasts enlarged, doing so constitutes a feminist act. As a result, it ironically becomes rather difficult to implement feminist thought into legislation that affects so many women. I would argue that when singularly addressing prostitution, a regulated form of legalization, as seen in the Netherlands and Germany, is superior to Sweden’s prostitution policies. The main idea behind this argument is that regulated legalization allows for the sex work industry to prosper while also protecting sex workers and their right to pursue any occupation they want. In contrast, the policies of Sweden are aimed at eliminating the industry altogether and make the atmosphere more dangerous for sex workers. Sex trafficking will still be an issue with regulated legalization, but there are already laws prohibiting trafficking women, and they will be easier to enforce if there is greater transparency in the industry.20 In addition, if the johns are not being prosecuted in this legalized state, then they

23. 24.

E.H., supra. R. Claire Snyder, supra.

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will be more likely to go to the police if they believe that sex workers are being forced into prostitution because they no longer have to fear police action.

III. GREATER INCOME EQUALITY A great fallacy that is pervasive in society today is that sex workers are all victims. When legalization is brought up, inevitably the discussion shifts towards victims of assault, kidnapping, drugging, and child prostitution, amongst other forms of abuse. 25 In most cases, discussion rarely addres s es the women who, in the face of poor economic and social circumstances, make the consensual decision to exchange sex for money. This is the same group of women who are actually harmed by the Swedish policies, which are being called upon by the European Parliament to be implemented throughout the European Union. 26 This is not to say that crimes involved in sex trafficking and child prostitution are not major issues, but these crimes pose a threat whether prostitution is legal or not, and there are already severe penalties for them within the American legislative system. The best solution to these problems is to better enforce these laws. I would argue that if an adult woman chooses to pursue sex work in the face of few options for economic fulfillment, then it is not the business of the government to restrict two consenting adults from buying and selling sex, a victimless crime. Although many stigmatize sex work as a thankless job that is purely exploitative of women, it offers many poor women a chance at earning a better living while providing them with greater opportunities for social mobility. Many argue that if options for low-income women are so sparse that they have to turn to prostitution in order to make a living, then that is the problem that should be addressed moreso than prostitution itself. 27 This criticism is valid in that it addresses some major flaws in our country’s treatment of low-income women, who are often left disenfranchised with little opportunity for upward mobility. For example, the government in India helps at risk, poor women in numerous ways, such as providing them and their children with educ ation

25. Nussbaum, 1998; Michael Shively, Ph.D., et al, supra. Emily Shire, Prostitutes Tell Lina Dunham to Stop Grandstanding About Sex Work, T he Daily Beast, (Jul. 28, 2015), http://www.thedailybeast.com/articles/2015/07/29/prostitutes-tell-lenadunham-to-stop-grandstanding-about-sex-work.html. 26. A Personal Choice, supra. 27. Martha Nussbaum, supra

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opportunities, giving them loans in order to obtain various sector occupations in various sectors, helping them form labor organizations in order to better bargain for wages, and also forming groups that help promote self respect among low income, working women.25 Where this criticism fails in that it doesn’t address the hesitation to pass legislation for social programs that are taxpayer funded within this country. In a nation as large as the U.S., getting funding for any federal program can be extremely difficult, and implementing it in a way that is truly effective can be even more difficult at times. Until we are willing and able to implement such strategies, it makes little sense for the government to stop sex workers from exercising their constitutional right to make a living in any way they see fit. Although it is a highly stigmatized way to earn a living in today’s society, prostitution offers poor, uneducated women higher wages and more room for social mobility than the alternative. As discussed in the Urban Institute report Estimating the Size and Structure of Underground Commercial Sex Economy in Eight Major US Cities, researchers found that the most prominent reason that sex workers entered “the life” was out of economic necessity. 28 According to Economists Steven D. Levitt and Sudhir Alladi Venkatesh in their study An Empirical Analysis of Street Level Prostitution, prostitutes earn approximately twice the weekly wage of non-manual female workers and three times the weekly wage of manual female workers. 29 A wage disparity this large shows a clear incentive for uneducated, poor women to enter the sex work industry. In addition, transaction level data they uncovered showed that the average wage of a street sex worker was $27 per hour. Wages this high open up opportunities like education and proper housing that would probably not have been available for them if they were working a basic minimum wage job. Whether the government believes it to be moral or not, assuming all parties are consenting, it is not right for them to attempt to deny poor women the chance to use their body to enhance their position in society. It is widely established that income inequality is one of the biggest issues faced by the American Economy. 30 In the United States today, we face some of the greatest income inequality in the history of our nation, with the top 20% of Americans controlling more than 84% of the wealth, and social mobility

28. Meredith Dank, et al, supra. 29. Steven D. Levitt and Sudhir Alladi Venkatesh, supra. 30. Paul Krugman, Is Vast Inequality Necessary? T he New York T imes, (Jan. 15, 2016), http://www.nytimes.com/2016/01/15/opinion/is-vast-inequality-necessary.html?_r=0.

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grossly overestimated by citizens. 31 The classic rags-to-riches tale about a poor person who makes it all the way to the top of the economic ladder has been rendered false in recent years. This tale, the main staple of the American Dream, suggests that regardless of the status of your birth, every American has equal opportunity to climb the ladder of success. However, a 2012 study conducted by Pew Charitable Trusts entitled, Pursuing the American Dream: Economic Mobility Across Generations found that only 4% of citizens born into the bottom fifth of the economic class were able to rise to the top as adults. 32 Meanwhile, liberal politicians have done little to combat the rampant inequality in American society, and conservatives deny the very existence of it, or that it is an issue. 33 In my opinion, it is hypocritical for politicians to deny certain occupations to individuals while refusing to help them escape difficult circumstances. In a time like this, the government should allow forms of skilled labor such as sex work, which gives impoverished women with few opportunities a chance to escape poverty. Moreover, one person’s view on morality should not affect how another chooses to earn their living, especially when that occupation is a harmless vice, among consenting adults, that produces no victims.

IV. GREATER TAX REVENUE AND ECONOMIC GROWTH Through the regulated legalization of prostitution, the U.S. Government could help create more tax revenue and boost Gross Domestic Product, a metric used to measure the size of an economy. As established in previous paragraphs, the demand for sex dictates that there will always be a sex work industry, whether it is illegal or not. Criminalizing prostitution does not eliminate the industry. Therefore, the logical thing to do is to regulate it and allow it to positively influence economic growth. According to older estimates, the value of the sex trade in America is upwards of $14 billion, which is definitely a low estimate at the current point in time. 34 Newer estimates suggest that legalizing

31. Nicholas Fitz, Economic Inequality: It’s Far Worse Than You Think, Scientific American, (Mar. 31, 2015), http://www.scientificamerican.com/article/economic-inequality-it-sfar-worse-than-you-think/. 32. Pursuing the American Dream, Pew Charitable T rusts, (Jul.9, 2012), http://www.pewtrusts.org/en/research-and-analysis/reports/0001/01/01/pursuing-the-americandream. 33. Paul Krugman, supra. 34. E.H., supra.

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prostitution could increase GDP by as much $9 billion per year. 35 In addition, prostitution will only grow more with technological innovation and social media. New applications and social media outlets are allowing sex workers to market themselves, causing street prostitution to diminish, and making buying sex more accessible to the average consumer.34 Moreover, legalizing prostitution would be like establishing an entirely new American industry that needs private investment, buildings and jobs to truly flourish. In this way, the economics of the prostitution prohibition draws on several similarities to the Alcohol Prohibition of the 1920s. During the Prohibition of Alcohol, the closing of breweries and distilleries led to the loss of manufacturing jobs, and the lack of alcohol for sale caused restaurants to fail nationwide. 36 The legalization of prostitution would be essentially creating a new industry, with people employed as sex workers, regulation inspectors, and medical personal as well as people employed to help build the infrastructure of this industry. For example, when Germany first legalized prostitution in 2002, the industry was estimated to be worth 6 billion euros. Today, that same industry is worth more than 15 billion euros. 37 For this reason, legalization would have the benefit of not only stimulating growth but also creating more jobs and infrastructure in the U.S. economy. It is also important to stress the concentration of the industry. Many critics of legalization argue that legal prostitution would lead to ubiquitous sex work and to the nationwide breakdown of traditional moral values, so that the economic benefits would be moot. 38 However, I would argue that this fear is unfounded in the data. In fact, the largest concentration of underground sex work is in the major cities, and the countries that have legalized sex work such as Germany and the Netherlands, have also managed keep the sex market reasonably contained in certain areas. 39 Therefore, the most likely potential growth areas would be in the places where there is the highest demand, the cities, which would leave most suburbs and rural areas largely unaffected by any industry expansion caused by legalization. Due to the current underground status of prostitution, the government has no ability to tax any income coming from these activities. As discussed earlier, 35. A Personal Choice, supra. 36. Michael Lerner, supra. 37. Lilia Diu, supra. 38. Michael Shively, Ph.D., et al, supra. 39. Sex is Their Business, supra. Meredith Dank, et al, supra.

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many of the major cities in the United States have underground commercial sex industries valued in the hundreds of millions of dollars. 40 On a national scale, the underground commercial sex economy is valued at roughly $14 billion, which could generate hundreds of millions of dollars in tax revenue nationally. The benefit of this money cannot be undervalued, as it can be put toward higher wages for government employees, improving school and healthcare systems, and balancing the budgets of major and minor cities. Although greater government tax revenue is an obvious benefit of legalization, just how great an effect it would have becomes difficult to quantify. This difficulty arises mainly because we are dealing in hypotheticals and we do not know what type of tax plans would be implemented on the state and federal level. There are a few different models to choose from, but for the sake of argument, let’s assume that the federal government institutes the mo del seen in Nevada, the only state where prostitution is legal. According to a 2003 The Times article, the average income of a licensed sex worker is at least $100,000 per year. 41 Although this is not an outdated statistic, adjusted for inflation using the CPI provided by the US government that number rises to approximately $130,000 per year. Moreover, this approximate salary means that, under the current tax system, the average sex worker would contribute approximately $25,500 in federal income taxes per year. In 2009, experts revealed that there are approximately 1 million to 2 million prostitutes working in the United States. 42 Using those figures, it can be estimated that legalization would add between $25 and $50 billion in tax revenue. 43 This method is an imperfect way of calculating the specific tax figures because, if legalization was implemented at the federal level, it is likely that there would be new tax laws passed specifically for the purpose of the commercial sex industry. Although it is not perfect, the numbers are highly effective in approximating the magnitude of the effect the legalization of prostitution could have on the American economy.

40. Id. 41. Chris Ayres, Cathouses Find Sex is Taxing the Wild West, T he T imes, (Jul. 19, 2003), http://www.thetimes.co.uk/tto/news/world/article1972032.ece. 42. Stephanie Chen, ‘John Schools’ Try to Change Attitudes About Paid Sex, CNN, (Aug. 2 8 2009), http://www.cnn.com/2009/CRIME/08/27/tennessee.john.school/index.html?eref=rss_us#cnnST C T ext. 43. Case for Legalizing Prostitution, Eastern Michigan University, (2009), https://people.emich.edu/tsonntag/engl444/printtoweb/history.html.

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V. LOWER GOVERNMENT EXPENDITURE ON ENFORCEMENT AND INCARCERATION It is no secret that the United States of America incarcerates its citizens at a higher rate than any other country in the world. With over 2.2 million people currently residing in our nation’s prisons or jails, the United States is responsible for roughly 25% of the world’s prison population. 44 Mass incarcerations are extraordinarily costly to the taxpayer. According to the Vera Institute of Justice; it costs $31,307 per year to incarcerate one person in Fis c al 2010. As a result the US is spending billions of dollars a year keeping millions of people locked away. Given the size of the budget deficit, the massive debt accrued over time, and the crumbling infrastructure throughout the country, it is not a stretch to say that these billions could be spent in a significantly more constructive way, especially since studies show that mass incarcerations are not the best way to keep the public safe. 45 However, there is still pushback from much of Washington to actually change the criminal justice status quo. Republican Senator Tom Cotton (Arkansas) has recently led a coalition of Senate Republicans to dismantle a Senate Judiciary bill that aims to diminish some mandatory sentencing requirements. 46 Before elaborating on prostitutions role in this issue, we must first discus s how this problem escalated to point it is at today. Dating back to the 1980s, America initiated the Tough on Crime sentencing reforms that consisted of mandatory penalties, determined sentencing, and guideline based sentencing. 47 This legislation, which was aimed at combatting crime rates nationwide, led to a 500% increase in incarceration rates over a thirty-year period.44 Yet there is only circumstantial evidence at best that the policies actually achieved the goal of decreasing crime throughout the nation. As a result, prisons today are overflowing with people, and have few resources to house them properly. In

44. Incarcerations, T he Sentencing Project, (Nov. 4, 2015), http://www.sentencingproject.org/template/page.cfm?id=107. Michelle Ye Hee Lee, Yes, U.S. Locks People Up at a Higher Rate than Any Other Country, T he Washington Post, (Jul. 7, 2015), https://www.washingtonpost.com/news/fact checker/wp/2015/07/07/yes-u-s-locks-people-up-at-a-higher-rate-than-any-other-country/. 45. Incarcerations, supra. 46. Seung Min Kim, Cotton Leads Effort to Sink Sentencing Overhaul, Politico, (Jan. 25, 2016), http://www.politico.com/story/2016/01/criminal-justice-tom-cotton-218121. 47. James P. Lynch & William J. Sabol, Did Getting Tough on Crime Pay? Urban Institute, (Aug. 1, 1997), http://www.urban.org/research/publication/did-getting-tough-crimepay/view/full_report.

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Brown v. Plata in 2011, in a 5-4 decision the Supreme Court ruled that California state penitentiaries were in violation of the 8th Amendment, citing that overcrowding in the prisons constituted Cruel and Unusual Punishment. California prisons, therefore, had to cap their population size at 137.5% of its designed capacity within 2 years of the ruling. 48 It has been established that our current criminal justice policies have resulted in the highest incarceration rates globally, obscene levels of federal and state spending on law enforcement and corrections, and relatively stagnant crime rates, so it is clear that the US is in need of major reform. There are politicians on both sides of the aisle currently fighting for a major overhaul of criminal justice policy, but in my opinion, these attempted reforms aren’t going nearly far enough. This issue could have major implications with regard to prostitution. Typically, criminal law reform focuses on drug related offenses because these nonviolent offenses are one of the biggest contributions to the mass incarcerations, reflect some of the biggest inequities within the criminal justice system, and cost roughly $3.6 billion per year to enforce. One of the main principles of this reform is that whites and blacks are roughly equally likely to use drugs, while blacks are 3.73 times more likely to be arrested for it. 49 Although prostitution is on a much smaller magnitude, the same argument that applies to drug reform can be applied to sex work reform. When taking place among consensual adults, it is a harmless vice, quite similar to drugs. In addition, just as African Americans are significantly more likely to be arrested that their white counterpart, women are also unevenly prosecuted for sex work, as established in the previous section. It is understandable why this wouldn’t be the main focus for the country given the magnitude of the issue compared to drugs. It will be difficult enough to pass criminal justice reform as it stands, given the resistance in Congress that already exists, it may not seem worth it for some to push the envelope and alienate undecided voters. But the fact is that the current prostitution laws are not only marginalizing the women involved, they are also expensive to the taxpayer. Although there are very few studies conducted to quantify the nationwide cost of enforcing current prostitution laws, a 1987 report concluded that it cost $2,000 to arrest a single sex w orker, totalling about $120 million per year in enforcement costs. 50 Those numbers

48. Brown, Governor of California, ET AL. v. Plata ET. AL. No. 9-1233 (U.S. 2011). 49. The War on Marijuana in Black and White, American Civil Liberties Union, (n.d.), https://www.aclu.org/report/war-marijuana-black-and-white. 50. Laurie Becklund, Prostitution Arrests Cost $2000 Each, Study Finds, Los Angeles T imes, (Jul. 10, 1987), http://articles.latimes.com/1987 -07-10/news/mn-1941_1_prostitution-

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cannot be relied upon to represent today’s current cost of enforcement, but it can be concluded that those numbers would be significantly higher today.

arrests.

LEGAL PATH FOR SYRIAN REFUGEES IN THE EUROPEAN UNION

Changyeun Hahn*

ABSTRACT In 2014, over 191,000 people were killed in the Syrian conflict. Since then, the death toll has continued to rise, and with it, the number of Syrians fleeing their home country and seeking asylum in others. Understanding this complex conflict and the refugee crisis it has created begins with the history of Syria—a history riddled with political turmoil. Conditions have been particularly harsh in recent decades under the Assad regime. Now, more than ever, citizens fear for their safety due to the rise of groups such as IS and the government’s retaliation against rebels, and many are willing to risk their lives to escape the country. While pursuing solutions to end the Syrian civil war is very important, this paper focuses more specifically on mitigating the difficulties caused by refugees fleeing Syria for European Union (EU) member countries. These countries are important to examine when considering international law’s effects on the refugee crisis, as they have signed onto EU treaties guaranteeing refugees certain rights. This paper explores how, and to what degree, these laws govern the obligations and constraints of member *

Changyeun Hahn is a third year majoring in political science and minoring in labor and workplace studies. She plans on attending law school and working to improve human rights. Editor: Jennifer Teitell is a second year political science major and public affairs minor at UCLA. She is interested in constitutional law, civil rights, and criminal justice, and she plans to attend law school after graduation.

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countries in dealing the Syrian refugee crisis. It also proposes three key policy solutions to alleviate the crisis: 1) Modifying language in treaties to better describe those seeking asylum, reduce ambiguity, increase accountability, and shift unfair burdens, 2) Increasing staffing and general funding of UNHCR facilities, and 3) Using the model of humans rights clauses in Preferential Trade Agreements (PTAs) to attach economic sanctions to failure to aid refugees.

I. INTRODUCTION On September 2nd , 2015, the world was shocked and outraged by the death of Alan Kurdi, a two-year old Syrian refugee. Kurdi, whose mother and brother also died, drowned while attempting to illegally exit Turkey via boat and seek asylum in Canada. A photo taken by a Turkish journalist showed military policeman Mehmet Cuplak, a father of a six year old, carrying Kurdi’s lifeless body. This photo would later appear in hundreds of newspapers worldwide, bringing light to the human cost of the Syrian crisis. 1 Since the Syrian crisis surfaced on the international radar, the refugee problem has only worsened. In June 2013, the United Nations reported that 90,000 people had been killed in conflict; by August 2014, this number had grown to 191,000. A year later, the number had risen even further, totaling 250,000. 2 Even prior to the death of Alan Kurdi, hundreds of thousands of people had become displaced victims. However, Kurdi’s tragic death illustrated the legal difficulties refugees face when they attempt to flee war and chaos in their home country. The illegal journey that led to his death was his family’s last resort after years of unsuccessful attempts to legally migrate to Greec e and later Canada. 3 This pushed governments around the world to open a discourse on the refugee crisis and seriously consider offering aid. As the conflict enters its fifth year, refugees are continuing to face difficult conditions when searching for a safe-haven. The UN Refugee Agency

1. Patrick Kingsley and Safak T imur, Stories of 2015: how Alan Kurdi’s death changed th e world, T he Guardian (Dec. 31, 2015), http://www.theguardian.com/world/2015/dec/31/alan -kurdideath-canada-refugee-policy-syria-boy-beach-turkey-photo. 2. Syria: The story of the conflict, BBC (Feb. 3, 2016), http://www.bbc.com/news/worldmiddle-east-26116868. 3. Nil Koksal and Lisa Mayor, The family of Alan Kurdi, the Syrian ‘boy on the beach’, is coming to Canada, CBC News (Nov. 27, 2015), http://www.cbc.ca/news/world/alan-kurdi-familycanada-refugees-1.3338703.

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(UNHCR) notes that there is no solution for the conflict in sight. 4 The UNHCR further reports that in 2015 a million people, 50% of who were Syrians, fled to Europe. 5 As more and more people become displaced in Syria, this crisis has become difficult for the international community to ignore. While no one country is responsible for this enormous flow of refugees, individuals governments and international organizations could be doing much more to mitigate this crisis.

II. HISTORY OF SYRIAN POLITICS Syria is located in the Middle East, where Europe, Asia and Africa meet. Syria sits on the shore of the Mediterranean Sea and is bordered by Turkey, Iraq, Jordan, Israel and Lebanon (all of which have been affected to varying degrees by the current crisis). 6 After existing under Ottoman, British, and French rule for over 400 years, Syria was plunged into political turmoil when it gained independence from France in 1946. 7 Over the next ten years, Syria experienced three military coups, eventually returning to a civilian government when a group of army officers led a fourth coup in 1954. In 1958, the country became a member of the United Arab Republic (UAR), which forced Syria to eradicate its political parties. Unhappy with the status quo, military officers seized Damascus in 1963 and left the UAR. A new cabinet was appointed, with Amin al-Hafez as president. 8 However, Amin al-Hafez was overthrown by an internal coup in 1966. Four years later, Defense Minister Hafez al-Assad overthrew the thenpresident, Nur al-Din al-Atasi. In 1971, al-Assad was elected as president for a seven-year term. In 1973, al-Assad removed a constitutional requirement that the president be Muslim, which led to riots, which were quickly stopped by the military. Between 1973-1978, Syria clashed with Israel over territory, setting

4. Syria Emergency: Help Us Keep Refugees Warm and Safe, T he UN Refugee Agency, http://donate.unhcr.org/international/syria 5. “ A Million Refugees and Migrants Flee to Europe in 2015.” UNHCR - A Million Refugees and Migrants Flee to Europe in 2015 . T he UN Refugee Agency, 22 Dec. 2015. Web. 3 1 Dec. 2015. 6. Joshua J. Mark, Syria, Ancient History Encyclopedia (Jun. 17, 2014), http://www.ancient.eu/syria/ 7. Syria profile – Timeline, BBC (Dec. 9, 2015), http://www.bbc.com/news/world-middleeast-14703995 8. Ibid.

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undertones for Israel’s future role in the current Syrian crisis. 9 Due to religious uprisings in Iran during the 1980’s, al-Assad began to strictly emphasize Syria’s Islamic identity. During the same year, the Muslim Brotherhood tried to assassinate him. Two years later, the Muslim Brotherhood organized an uprising in the city of Hama, which was quickly suppressed by the army. Organizations have accused the Syrian government of killing tens of thousands of civilians during this time. After al-Assad’s death in 2000, his second son, Bashar al-Assad, became the president. The younger al-Assad released hundreds of political prisoners and worked heavily on improving foreign affairs, but ended up on America’s list of states making up the “axis of evil” based on rumors of weapons of mass destruction. In 2008, Syria attended a summit with France, Turkey and Qatar to push for peace in the Middle East. However, at the same time, explosions in the outskirts of Damascus killed 17 people. Despite Bashar al-Assad’s notable efforts to improve foreign affairs, violence has continued to grip his country, most recently culminating in the Syrian crisis. 10

III. ORIGINS OF THE SYRIAN CRISIS In March of 2011, security forces shot Syrians protesting the Assad regime in Deraa, a city in southern Syria. Rioters w ere fighting for a prodemocratic Syria and asking for an end to the authoritarian regime of the Ass ad family. By May, army tanks entered cities to stop anti-regime protests. In June, the government announced that armed gangs had killed 120 members of security forces, which prompted President Assad to order troops to seize the town of Jisr al-Shughour, which initiated an exodus to Turkey. A month later, twin suicide bombs that killed 44 people in Damascus. As anti-regime protests and violence continued, Syria’s relationships with other countries worsened. 11 The EU and US imposed sanctions against Syria, and the Arab League suspended the country for failing to implement the Arab Peace Plan. In 2012, the US threatened interference if chemical weapons were used. In 2013, the UN concluded that chemical weapons were indeed used on civilians in Syria, prompted further international condemnation 12

9. Ibid. 10. Ibid. 11. Ibid. 12. Syria: The story of the conflict, BBC (Feb. 3, 2016), http://www.bbc.com/news/worldmiddle-east-26116868.

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There are currently several rebel groups intent on taking down the Assad regime, with their combined membership totaling around 100,000. 13 The rebel groups rely on independent funding, whether that is in the form of collecting “taxes” from local businesses, pirating, or providing personal funds. Other countries such as Saudi Arabia, Qatar, Turkey and even the United States offer funding and arms different groups in the Syrian opposition. 14 One of most brutal and successful rebel groups that has arisen is the Islamic State (IS), which seeks to establish a caliphate, a state governed in accordance with Islamic law known as sharia. IS’s origins can be traced back to 2004 to a Jordanian named Abu Masab al-Zarqawi. Al-Zarqawi formed an alliance with Osama bin-Laden and began al-Qaeda in Iraq (AQI). Although al-Zarqawi died in 2006, the group formed a larger organization known as the Islamic State of Iraq. For a while its powers weakened, but in 2010 Abu Bakr al-Baghdadi became leader and reinvigorated the organization. In Syria, IS set up in alNusra and joined the rebellion against President Assad. Fighters of IS practice beheadings, mass killings and abductions. Their membership is suspected to be anywhere between 20,000 and 32,000. 15 Their funding originally came from individual donors seeking to get rid of Assad from power. However, since gaining control of larger areas in Syria, IS funds its operations by selling oil on the black market. In fact, IS controls almost two thirds of Syria’s oil production, and countries like Turkey have been accused of buying this IScontrolled oil. 16 In 2014, IS was rumored to earn millions of dollars per week. Many countries have voiced great disapproval of this organization and its acts of terror. 17 The multi-faceted nature of the Syrian conflict further complicates the refugee crisis. The fact that different countries covertly fund opposing groups helps explain why there is no clear solution in sight. For example, in October 2015 the US military flew over northern Syria and dropped 50 tons of ammunition, hand grenades and other small arms ammunitions to help the 13. Primoz Manfreda, Who Are the Syrian Rebels, About New (Nov. 25, 2014), http://middleeast.about.com/od/syria/tp/Who-Are-The-Syrian-Rebels.htm. 14. ibid. 15. Nabih Bulos, How does Islamic State make money off oil fields in Syria and Iraq?, LA T imes (Dec. 6, 2015), http://www.latimes.com/world/middleeast/la-fg-islamic-state-oil-qa20151206-story.html. 16. ibid. 17. What is ‘Islamic State’, BBC (Dec. 2, 2015), http://www.bbc.com/news/world-middleeast-29052144.

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Syrian Arab Coalition group. Even though US officials agreed that Syrian Kurds should not have the weapon, the ammunition was dropped in a Syrian Kurdish region. 18 As this operation and other U.S. involvement in aiding rebel groups have shown, efforts that fail can end up worsening situations for uninvolved civilians. The Obama administration has admitted to the failures and shortcomings of its programs and announced an operational pause in Syria in October 2015.

IV. SITUATION WITH THE SYRIAN REFUGEES According to World Vision, 4.3 million Syrians are refugees, most of whom are women and children. 19 In addition, 6.6 million people are displaced within Syria. To put these numbers in perspective, the population of Syria is 22.85 million; almost half of all Syrians have been displaced by the ongoing crisis. These people are leaving their homes due to extreme violence and collapsing infrastructure. Many civilians have been used as fighters and even human shields. 20 Even if they are able to leave, they face huge health risks, especially for children, due to malnutrition and diseases from poor sanitation. Further, two to three million Syrian children are not attending school, which poses a problem for Syria in the future. 21 A. Refugees in Bordering Countries Thousands of Syrians are leaving their country daily in search for a safehaven. 22 Due to proximity, most of the burden for these refugees falls on nearby countries, with most Syrian refugees staying in the Middle East—in Turkey, Lebanon, Jordan, Iraq and Egypt. Turkey is currently hosting over 1. 9 million refugees, Lebanon around 1.1 million, Jordan around 630,000, and Iraq around 250,000. The problem for the countries bearing the brunt of the crisis is

18. Barbara Starr, U.S. delivers 50 tons of ammunition to Syria rebel groups, CNN (Oct. 1 2 , 2015), http://www.cnn.com/2015/10/12/politics/syria-rebel-groups-ammunition-50-tons/ 19. Syria: The story of the conflict, BBC (Feb. 3, 2016), http://www.bbc.com/news/worldmiddle-east-26116868. 20. What you need to know: Crisis in Syria, refugees, and the impact on children, World Vision (Jan. 27, 2016), http://www.worldvision.org/news-stories-videos/syria-war-refugee-crisis. 21. Ibid. 22. Quick facts: What you need to know about the Syria crisis, Mercy Corps (Feb. 5, 2016), https://www.mercycorps.org/articles/iraq-jordan-lebanon-syria-turkey/quick-facts-what-you-needknow-about-syria-crisis.

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quite evident: these countries are now home to hundreds of thousands of people with no jobs and in need of medical help, housing, and other resources. Due to the unpredicted volume of refugees, these countries are largely unprepared to provide necessary services. Furthermore, many citizens of the accepting countries believe the refugees are a financial burden and not necessarily their own country’s responsibility. The situation in Turkey, the country that has accepted the largest number of Syrian refugees, illustrates these problems well. When the crisis began, Turkey was in the process of changing its immigration system to meet the international standards set forth by the European Union (EU). These reforms, however, limited the Turkish government’s ability to deal with the incoming refugees. Without much governmental support, the responsibility of helping these refugees was left up to various smaller domestic refugee relief organizations, which resulted in greater bureaucratic problems and lack of structure. 23 However, Turkey is considering changing this system to provide a path to permanent settlement for the refugees. 24 In the past 20 years, migration in Turkey has been mostly by migrants, asylum seekers, and refugees—some who would stay in Turkey and others who were looking to settle permanently elsewhere. Historically, Turkey has not offered legal status to those who are neither Turkish nor Muslim, but in 2013, this policy was changed, and there is now a more diverse flow of migrants. 25 Today, racial and religious biases no longer exist formally in Turkey’s process to gain citizenship. 26 However, most non-Europeans are not permitted to permanently stay in Turkey despite being recognized as refugees. They are instead allowed to stay temporarily until the UNHCR and Turkey’s Ministry of Interior determine their status as refugees; after this process, they can be deemed eligible for resettlement out of Turkey to other countries. 27 While their status is being determined, they have limited access to healthcare, education, employment, and other social needs. 23. Ahmet Icduygu, Syrian Refugees in Turkey: The Long road Ahead, Migration Policy Institute (Apr. 2015), http://www.migrationpolicy.org/research/syrian-refugees-turkey-long-ro adahead. 13. 24. Ibid. 25. Rebecca Kilberg, Turkey’s Evolving Migration Identity, Migration Policy Institute (Jul. 24, 2014), http://www.migrationpolicy.org/article/turkeys-evolving-migration-identity. 26. “ Istanbul, T urkey - Consulate General of the United States.” Citizenship and Renunciations. Consulate General of the United States in Istanbul, n.d. Web. 27 Feb. 2016. 27. Ahmet Icduygu, Syrian Refugees in Turkey: The Long Road Ahead, Migration Policy Institute (April 2015).

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Due to Turkey’s anti-Assad stance, it was initially open to taking refugees; however, as the numbers have rapidly risen, the country has aimed to limit the number of incoming refugees. 28 Many government officials have pointed to the risks of unmonitored crossings; if they are turned away, many refugees use smugglers to enter the country, which greatly increases the danger of their journey. 29 The UNHCR has spent $291.8 million to help Turkey with its efforts to deal with the Syrian refugees. While Syrian refugees make up a large portion of the influx into Turkey, some refugees come from other countries as well. 30 There are 1.067 million registered Syrian refugees in Lebanon. 31 B. Refugees in Europe Just over 10% of Syrian refugees are fleeing to Europe, but there has been much more news coverage for these refugees. 32 The main reason for this uneven focus is that human smugglers are risking the lives of Syrians and causing the deaths of countless refugees en route to Europe. In 2014, around 3,500 people died or were reported missing in the Mediterranean Sea. In one extreme case, 51 people on a boat coming from the Libyan coast died due to suffocation. 33 This case is not unique and situations like it continue to become more common as Syrian refugees grow desperate to escape the warzone but cannot attain safe and legal passage. 34 In 2015, 350,000 people arrived in Europe via sea by September. Out of those people, 234,000 arrived on the shores of Greece, compared to 35,000 only a year earlier. 35 These people

28. “ Istanbul, T urkey - Consulate General of the United States.” Citizenship and Renunciations. Consulate General of the United States in Istanbul, n.d. Web. 27 Feb. 2016. 29. Diana Al Rifal and Umut Uras, HRW: Turkey pushing back Syrian refugees at border, Al Jazeera (Nov. 24, 2015), http://www.aljazeera.com/news/2015/11/hrw-turkey-pushing-syrianrefugees-border-151123095456503.html. 30. 2015 UNHCR country operations profile – Turkey, T he UN Refugee Agency, http://www.unhcr.org/pages/49e48e0fa7f.html 31. Syria Regional Refugee Response- Lebanon, T he UN Refugee Agency, http://data.unhcr.org/syrianrefugees/country.php?id=122. 32. Syria Regional Refugee response, T he UN Refugee Agency, http://data.unhcr.org/syrianrefugees/asylum.php. 33. Crossing of Mediterranean Sea exceed 300,000, including 200,000 to Greece, T he UN Refugee Agency (Aug. 28, 2015), http://www.unhcr.org/55e06a5b6.html. 34. ibid. 35. Data T eam, Death at sea, T he Economist (Sep. 3, 2015), http://www.economist.com/blogs/graphicdetail/2015/09/migration -europe-0.

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entered Europe illegally, without the proper papers, but did so because there are almost no legal routes to Europe. Furthermore, traveling across Europe is dangerous, but these refugees took the risk because it was still safer than staying in their home country, which speaks to the genuine desperation of refugees fleeing Syria36 Many refugees are hoping to settle further North in countries like Germany and Hungary. Germany was initially very receptive to refugees due to its open-door policy of accepting all refugees seeking to enter the country. However, as the number of refugees continues to rapidly increase, the country has taken a stance similar to that of other countries in the EU. In November 2015, the Minister of Interior announced that Syrian refugees would only get subsidiary protection, not the full-fledged refugee status they were receiving previously. 37 Subsidiary protection lasts for one year and does not include a family reunification process while full-fledged refugee status gives refugees three years of asylum and a process to reunite with family. The German government hopes that such harsh measures will stem the tide the refugees coming into the country. 38 Similarly, Hungary’s initial acceptance of refugees has halted as the numbers have continued to grow. In October 2015, the country closed its borders to refugees. Despite this, many Syrians are waiting outside until the borders are opened again, believing that they have no home to return to in Syria. Some have attempted to enter Hungary illegally by cutting the fence and now face prison sentences. The Hungarian government has openly stated that it does not want refugees to view Hungary as a potential destination. 39

V. RELEVANT INTERNATIONAL LAW The European Union (EU) is a unique economic and political partnership between 28 countries that covers most of Europe. After the World War II,

36. Jonny Hogg, Syrians seek a legal route to Europe without perilous boats, Reuters (Sep. 9, 2015), http://www.reuters.com/article/us-europe-migrants-turkey-swedenidUSKCN0R91OR20150909. 37. Ian T raynor, Confusion as Germany announces curbs on Syrian refugees, T he Gua r dian (Nov. 6, 2015), http://www.theguardian.com/world/2015/nov /06/germany-imposes-surprisecurbs-on-syrian-refugees. 38. ibid. 39. Yaron Steinbuch, Hungary closes border to lock out Syrian refugees, New York Post (Sep. 16, 2015), http://nypost.com/2015/09/16/hungary -closes-border-to-lock-out-syrianrefugees/.

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European countries created the EU out of the hope that economic interdependence would prevent future conflict. 40 Within the Union, there is an abolition of border controls between member countries so that people can travel freely throughout most of the continent. In the EU, treaties are considered binding agreement, meaning that EU institutions and member countries are legally bound to uphold them when applying EU law. The EU has its own Court of Justice to maintain its laws. 41 One of the EU’s main goals is to promote human rights both internally and worldwide. The EU also has systems in place, such as the Common European Asylum System (CEAS), designed to help refugees. Furthermore, there are articles, such as articles 12-14 of the 1951 Refugee Convention, that specifically list the rights of refugees. For these reasons, it is reasonable to discuss what obligations, if any, EU member countries have during the Syrian crisis. Below, I outline relevant international law to provide a framework for EU action in this crisis. A. UN Geneva Convention: Treatment of Refugees The 1951 Refugee Convention, approved at a special United Nations conference, defines who is a refugee and designates the specific rights of refugees under UN law. Article 3 states that the provisions of the convention are to apply to refugees “without discrimination as to race, religion or country of origin.” Therefore, discriminating against refugees of a certain ethnicity due to fears of potential terrorism is illegal. Further, Article 7 states, “Except where this Convention contains more favourable provisions, a Contracting State shall accord to refugees the same treatment as is accorded to aliens generally.” Treating refugees as second-class citizens is explicitly prohibited according to this clause, yet, in Germany, this is currently the case. Many refugees in Germany do not have their own housing, receive delayed social welfare payments, lack comfortable beds and nutritious foods, and are living in large warehouses with no heating system. 42 Article 16 builds on this principle, stating that refugees should enjoy the same treatment as a national in the legal system. Further, Article 22 outlines that refugees must receive the same treatment as

40. The EU in brief, European Union, http://europa.eu/about -eu/basicinformation/about/index_en.htm. 41. Ibid. 42. Soeren Kern, Germany: Asylum Seekers Make Demands, T he Gatestone Institute (Oct. 23, 2015), http://www.gatestoneinstitute.org/6753/germany -migrants-demands

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nationals in regards to elementary education. 43 While this conference did not include all of the EU’s current states, it is the basis for the EU’s own Dublin Regulations, and the principles it outlines continue to shape discourse about refugees’ rights today. However, it should be noted that this treaty is more of an ideal than enforceable law—most countries today violate these regulations, as can be seen in the EU. Enforcement for suc h agreements is often difficult because international organizations cannot use force the way individual states do to enforce the law. The entity most analogous to an international police force is the system of UN Peace Keepers; however, even they are under the influence of the G8 states of the United Nations. B. EU Charter on Fundamental Rights The EU Charter for Fundamental Rights was proclaimed in 2000 and became legally binding in December 2009 via the Treaty of Lisbon. It is a single document defining individuals’ rights and freedoms that has evolved along with social changes and scientific and technological development. It includes all rights and freedoms outlined in the European Convention on Human Rights as well as principles from the common constitutional traditions of EU member countries and other international institutions. This document strengthens the protection of fundamental rights, and is often cited in cases decided by the European Union Court of Justice. 44 Article 18 states, “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention.”45 More specifically, the Charter outlines rights of citizens within the EU. Given the principle that refugees are entitled to similar rights, this treaty is important in analyzing whether refugees are being treated in a just manner. Beyond specific rights, the Charter upholds universal values such as human dignity, freedom, equality, and solidarity. It is based on principles of democracy and is aimed at creating an area of freedom, security, and justice. Accordingly, people have a right to human dignity, life, integrity, prohibition of torture and inhuman or degrading treatment or punishment, and prohibition of

43. Convention and Protocol Relating to the Status of Refugees, T he UN Refugee Agency (Jul. 1951), http://www.unhcr.org/3b66c2aa10.html. 44. EU Charter of Fundamental Rights, European Commission, http://ec.europa.eu/justice/fundamental-rights/charter/index_en.htm. 45. Charter of Fundamental Rights of the European Union, 364, Official Journal of the European Communities, 2000, http://www.europarl.europa.eu/charter/pdf/text_en.pdf.

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slavery and forced labor. 46 As members of the EU, countries such as Turkey, Germany, and Hungary should strive to uphold these principles. Their rejection of refugees is a dismissal of the right to life, human dignity, and the prohibition of inhuman treatment, among other values. C. EU: Dublin III Regulations The Dublin Regulation is a EU treaty that specifically addresses the treatment of refugees. The first version of the treaty, written in 1990, determines which State is responsible for examining an asylum application. In Article 1, it outlines that “‘applicant for asylum’ means: an alien who has made an application for asylum in respect of which a final decision has not yet been taken.” Article 3 requires that the application is “examined by [the] State in accordance with its national laws and international obligations.” These international obligations include those of the Geneva Convention. Article 5 explains that the state where a refugee seeking asylum first enters the EU is the one responsible for examining the application. 47 Dublin III Regulation, the most recent version of the treaty, was written in 2013 and was a consequence of the unprecedented number of Syrian refugees . Article 1 explains that, “This Regulation lays down criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person.” This change represents an effort to spread the burden of the refugees across member states. 48 In section 2, the treaty establishes a Common European Asylum System (CEAS) as part of the EU’s objective of establishing an area of freedom, security, and justice for people who are forced to seek protection by violent circumstances. It also ensures that no one is sent back to persecution, a principle first established in 1951 Refugee Convention. In section 8, the treaty also created a European Asylum Support Office responsible for supporting the relevant services of the member states responsible for implementing this regulation. According to Article 8 of the regulation, taking into account minors’ wellbeing, social development, and safety is crucial when dealing with refugees.

46. Ibid. 47. Dublin Convention, EUR-Lex, http://eur-lex.europa.eu/legalcontent/EN/ALL/?uri=CELEX%3A41997A0819(01). 48. Dublin Regulation, European Council on Refugees and Exiles, http://www.ecre.org/topics/areas-of-work/protection-in-europe/10-dublin-regulation.html.

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Furthermore, Article 9 mentions, “Where the applicant has a family member, regardless of whether the family was previously formed in the country of origin. . .[the] Member State shall be responsible for examining the application for international protection.” Under Article 13, refugees are allowed 12 months of illegal stay. Section 20 also states that applicants detained in the arriving country on the sole ground of seeking protection must be detained as briefly as possible. 49 The Dublin III Regulation also requires that a refugee can stay in the first state of the EU they enter. If they choose to travel to another country, they can be returned to the first country. This places an undue burden on countries that border Syria, s u c h as Turkey, and for coastal Mediterranean countries like Italy and Greece. Due to the Dublin III Regulation, they are responsible for the majority of refugees currently entering the EU. The Dublin III Regulation also provides an important framework for discussion because it defines who is a refugee rather than a migrant. According to Article 2, refugees are “persons fleeing armed conflict or persecution”. Their journey is hazardous and they are unable to return to their homes until what forced them to leave improves—in the case of Syria, the conflict and war. 50 Migrants, on the other hand, are those who migrate to improve their situation, yet are able to return to their home with no threats to their lives. 51 Migrants experience a more comfortable transition because they are able to get information about their new home, study the language, and take time to find housing and employment beforehand. Their move is a planned decision, and the option to return home always remains open. 52 Though seemingly insignificant, this semantic difference between refugees and migrants is important when interpreting treaties; refugees are given special criteria and offered more support due to their more critical situation. Under the definition provided by the Dublin II Regulations, the fleeing Syrians are entitled to the

49. Regulation (EU) No 604/2013 of the European Parliament and the Council of 26 June 2013, 180/31, Official Jouranl of the European Union, http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:180:0031:0059:EN:PDF. 50. What is the difference between a refugee and a migrant?, Settlement Services International, http://www.ssi.org.au/faqs/refugee-faqs/148-what-is-the-difference-between-arefugee-and-a-migrant. 51. UNHCR viewpoint: ‘Refugee’ or ‘migrant’ – Which is right?, T he UN Refugee Agency (Aug. 27, 2015), http://www.unhcr.org/55df0e556.html. 52. What is the difference between a refugee and a migrant?, Settlement Services International, http://www.ssi.org.au/faqs/refugee-faqs/148-what-is-the-difference-between-arefugee-and-a-migrant.

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protection afforded to refugees since they are leaving due to the threat of death. They also do not have the luxury of returning home in the near future, and they are not moving for their own development, but rather as a means of survival. However, the shortcomings of this treaty are still clear. While the treaty lays out certain rights and provisions for refugees, it does little to combat the logistical difficulties that even the most accepting countries face in dealing with unprecedented volumes of refugees. To some degree, the treaty defines a set of ideals, and, as the countries stray further away from these ideals, the treaty becomes easier to ignore. Further, despite efforts to shift burdens, the s train of accepting large numbers of refugees still falls on neighboring EU member countries, like Turkey. The 2015 EU Action Plan Against Migrant Smuggling takes some steps to resolve these issues, but drafting a Dublin IV Regulation could provide additional clarity and guidance as the EU continues to struggle with this migrant crisis. D. EU Action Plan Against Migrant Smuggling (2015-2020) As smuggling continued to be a problem, the European Council passed the EU Action Plan Against Migrant Smuggling, also known as the EU Migrant Action Plan. While the use of the word migrant instead of refugee is problematic, the document recognizes the problem caused by the smugglers. Section 2 recognizes that “to address the root causes of irregular migration. . . it is important to open more safe, legal ways into the EU.” However the section also states that, “efforts to crack down on migrant smuggling must be matc hed with strong action to return the migrants that have no right to stay in the EU to their home countries.” While this is legal due to the refugees being labeled as migrants, sending these people back to their home countries would risk their lives. 53 Furthermore, in order to alleviate some of this pressure, the European Union ministers passed the EU Migrant Action Plan in September 2015. This plan relocating most of the 120,000 asylum-seekers in Greece and Italy to 22 other EU states. Apart from relieving overburdened countries, the EU hopes that this plan will reduce incentives to use smugglers to find asylum. 54 Thought the Migrant Action Plan represents progress, it faces some significant obstacles.

53. EU Action Plan Against Migrant Smuggling, 285, European Commission (May 27, 2015), https://ec.europa.eu/antitrafficking/sites/antitrafficking/files/eu_action_plan_against_migrant_smuggling_en.pdf. 54. Migration, European Commission, http://ec.europa.eu/priorities/migration/index_en.htm.

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UNHCR predicts that the EU does not have the reception facilities to handle the tens of thousands of refugees. 55 Some Eastern European countries such as Hungary have opposed the plan, but may be forced to take refugees regardless. 56

VI. NECESSARY CHANGES AND POSSIBLE SOLUTIONS The Syrian refugee crisis is growing increasingly difficult to ignore. The responsibility to accept and help these refugees is not only moral but also legal considering the laws governing the EU. Having signed on to these treaties and regulations, EU member states have an obligation to accept refugees. Countries have been reluctant to help refugees, though, due to the financial burden they place on the state, as well as cultural differences and fears of terrorism. A. Revising Current EU Treaties Refugee-Migrant Distinction. The news media tends to refer to this cris is as a migrant crisis, not a refugee crisis. A recent BBC article, for example, w as titled, “Migrant Crisis: Finland PM Sipila halts plan to host refugees.” 57 Even though the title itself acknowledges that the issue involves refugees, it still dubs the situation a migrant crisis. By not calling the issue a refugee crisis, the states within the EU have a more political and legal leeway in their treatment of the refugees. As the Geneva Convention outlines, refugees are entitled to certain rights, often equivalent to those of citizens, and many member states feel incapable of offering these rights to the large volume of refugees entering. Even treaties such as the EU Action Plan Against Migrant Smuggling is a formal document passed by the EU Council that legitimizes the labeling of Syrian refugees as migrants. The history of the Syrian crisis and the current dangers that Syrians face within their own country makes clear that these Syrians are not leaving their country for social mobility, but rather for survival—thus categorizing them as refugees. It is important that action plans and treaties formally acknowledge the Syrians as refugees. Furthermore,

55. EU approves refugee quota plan despite Eastern European opposition, RT News (Sep. 22, 2015), https://www.rt.com/news/316215-refugee-quotas-plan-approved/. 56. Data T eam, Relocation quotas, T he Economist (Sep. 22, 2015), http://www.economist.com/blogs/graphicdetail/2015/09/europe-s-migrant-crisis. 57. “ Migrant Crisis: Finland PM Sipila Halts Plan to Host Refugees - BBC News.”BBC News. BBC News, 1 Feb. 2016. 03 Mar. 2016.

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governments should take steps to encourage the media to more commonly use the term refugee, which better indicates the gravity of the situation. Accountability Through Detail. Other adjustments must be made in Dublin III Regulations, which suggests that Dublin IV Regulations be drafted to address crucial issues. For example, Article 8 of Dublin III prioritizes minors’ well-being, social development, and safety. However, these priorities have not been upheld in practice, and therefore should be more clearly specified. For example, more specific language could mandate that, within a period of six months, refugees who are minors be enrolled in a school nearby or be offered some form of education. Other parts of the treaty, such as Article 9 concerning families’ unity, can also be expanded offer clear policy guidelines. For example, a committee within the UNHCR could be organized in each member country to make a serious effort to reunite families within a prescribed time period. For example, the committee could decide that, within the first month of a refugee’s arrival, a case to find his family must be opened. Portions such as Article 13, which gives refugees 12 months of illegal stay, should also be reexamined. The process of asylum seeking is taking longer due to the number of refugees the EU is receiving, so it would be just to expand this grac e period. System of Return. Another issue that a new treaty or regulation should specifically address is the idea of return for these refugees. Syrian refugees are not intended to become citizens and fully assimilate, but rather it is expected that they be offered international protection until their home country is hospitable once again. This concept should be emphasized to the refugees as they enter the European Union. A committee can also be formed to help the refugee communities in different countries to communicate with each other, but also prepare to go back to Syria in the near future, as the war in the country improves. Treaties can detail how this will be emphasized to the refugees—for example, every refugee will be told this information at each point of their asylum process from the moment the case is opened. Furthermore, treaties c an work out detail so that the refugees can exist in a community that is the least intertwined with the rest of the country. This would not be in efforts to exc lude the refugees but rather to help make the community more self-reliant and connected with other refugee communities so that when the conflict in Syria is over, they are comfortable and ready to move back to Syria. The simple fact is that this is not a “migrant crisis”, these are refugees leaving a country in hopes to survive. The reality is that they are not being given much better options outside of their war-torn country. After World War

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II, at the Geneva Convention, the countries noticed problems with displaced people and agreed to offer these refugees a certain set of rights. While understanding that these shortcomings are largely financial in nature, treaties must be more specific and continue to challenge the countries to improve and further help the refugees coming in. These Syrians need international assistance and every other country is responsible for trying to assist to some degree. B. Staffing Issues and Funding Many refugee centers are under-staffed, which reduces their ability to process refugees. Italy, for example, had received 60,000 asylum applications as of August 2015, but only 17 UNHCR staff members are positioned at key arrival points. 58 Hiring more workers to process applications and facilitate physical border crossings would improve the efficiency and safety of the process refugees. This would have the added benefit of creating jobs for people within the host country as well as offering a potential role for incoming refugees. In order to hire more workers, funding for refugee centers must inc reas e. In December 2014, the UN asked member countries for $8.4 billion to help 18 million Syrians in need, but less than half that amount was funded. 59 This financial burden does not need to fall solely on EU member countries; countries that are farther away and less affected by the crisis can provide crucial assistance by offering more financial aid. For example, although over 55 governments and international organizations have pledged to financially support the Refugee Response Plan, less than half of the $1 billion recommended for the plan has been funded. Switzerland, Norway, and South Korea have only fulfilled 29%, 16%, and 10%, respectively, of the amount they pledged. 60 This lack of international cooperation and support hinders the efforts of organizations that are eager to help but have limited resources. By using economic treaties that already exist between countries, stronger governments can encourage the fulfillment of such pledges, as discussed in detail in the 58. UNHCR Country Update Italy- November 2015, T he UN Refugee Agency, Nov. 2015, http://data.unhcr.org/mediterranean/regional.php. 59. Quick facts: What you need to know about the Syria crisis, Mercy Corps (Feb. 5, 2016), https://www.mercycorps.org/articles/iraq-jordan-lebanon-syria-turkey/quick-facts-what-you-needknow-about-syria-crisis 60. Sarah A. T obin, The Syrian Refugee Crisis and Lessons from the Iraqi Refugee Experience, Boston University Institute for Iraqi Studies, http://www.bu.edu/iis/files/2013/05/Syrian-Refugee- Report-v-5.1.pdf.

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following section. In fact, with an ally country like South Korea, the US can easily make an effort to encourage participation. If more countries followed the example of countries such as the Netherlands, which donated 106%, then the UN would have the resources to fully address the refugee crisis. C. Refugee Relief Clauses in Preferential Trade Agreements (PTAs) In the past, human rights clauses have been attached to PTAs, with the idea that upholding the conditions of a trade agreement provides an economic incentive for countries to respect human rights. While this paper focuses for the most part on the responsibility of EU member countries, many other countries have similar human rights, and this concept could be expanded to include refugee relief clauses. In order to explore this solution, the language and effectiveness of human rights clauses in PTAs must be examined more closely. An example of human rights clause in PTAs can be seen in the Coriforum Economic Partnership Agreement (EPA). In this agreement, the human rights clause states, “Nothing in this Agreement shall be construed so as to prevent the adoption by the EC Party or a Signatory CARIFORUM State of any measures, including trade-related measures under this Agreement, deemed appropriate, as provided for under Articles 11(b), 96 and 97 of the Contou Agreement.” 61 The Contou Agreement is a partnership signed in 2000 between the EU and the African, Caribbean and Pacific (ACP) region. Its specific sections referred to in the PTA are clauses related to human rights. 62 Article 96 is titled: “Essential elements: consultation procedure and appropriate measures as regards human rights, democratic principles and the rule of law.” Article 97 is titled: “Consultation procedure and appropriate measures as regards corruption.” The effectiveness of these clauses has been debated. Problematically, the responsibility to enforce them falls on the countries involved in the treaty, and neither country is likely to make allegations that could potentially strain the trade agreement. On an international scale, human rights clauses tend to vary depending on the interests of the countries that are including them. For example, American PTAs with human rights clauses tend to look very different 61. The European Parliament’s Role in Relation to Human Rights in Trade and Investm en t Agreements, European Parliament (2014), http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/433751/EXPOJOIN_ET (2014)433751_EN.pdf. 62. ACPThe Cotonou Agreement, European Commission, https://ec.europa.eu/europeaid/where/acp/overview/cotonou-agreement/index_en.htm_en.

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from those in the EU. American PTAs tend to protect children and workers while EU PTAs focus on voters and citizens—the two entities are interested in enforcing the rights of different groups. Many w ho are skeptical of fair trade regulations believe that they are the result of strong-arming and lack enforcement mechanisms. 63 Despite these concerns, human rights clauses are more effective in changing a government’s oppressive behavior than many other coercive tactics. In particular, research has shown that when PTAs use hard human rights standards, instead of broad, soft principles, member states are more likely to reduce repression. 64 Potential refugee relief clauses would entail that a country must accept a certain number of refugees in order for a certain trade agreement to be carried out. If a country does not meet these obligations, then any country involved would be permitted to exit the agreement. However, this presents a problem often found with human rights clauses as well—stronger countries are not held accountable for violations while weaker countries are strong-armed. These clauses could also encourage countries to fulfill financial pledges to the UNHCR. An oversight mechanism, such as an international committee, should be created to monitor and encourage the enforcement of these clauses. Due to the lack of an international police force, it is impossible to force a country to do its part, but a committee could still help bring awareness and oversight. Ultimately, in order for PTAs to be effective, there must be strong political and social pressure to enforce these clauses, establishing enforcement and accountability as the international status quo

VII. CONCLUSION Syria’s politically turbulent history has contributed to the magnitude and complexity of the crisis it faces today. The reality, though, is that Alan Kurdi’s death was preventable. If reasonable legal methods of reaching Europe were possible, he may still be alive today. Alan will not be the last innocent life lost in this crisis, and the slower the international community is to react and help refugees, the more history will paint this era as yet another failure to aid refugees. Although the international community has frequently failed to aid

63. Emilie M. Hafner-Burton, Forced to Be Good: Why Trade Agreeements Boost Human Rights, 95, 105, 111, 130, 131, 2013. 64. Emilie M. Hafner-Burton (2005). T rading Human Rights: How Preferential T rade Agreements In uence Government Repression. International Organization, 59, 619 doi:10.1017/S0020818305050216.

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refugees in the past, considerable improvements have occurred in international law over the last century. While many of the solutions proposed in this paper have not been fully tested due to their novelty, pursuing them would raise more awareness of the refugee crisis and encourage EU to adhere more strongly to the treaties they have signed. Beyond legal issues, hiring more staff for UNHCR stations would help alleviate the bureaucratic and logistical problems that many countries are currently facing. Finally, adding refugee relief clauses into PTAs will hold countries accountable for upholding human rights and providing much-needed relief to refugees.

LIFE AFTER BURWELL V. HOBBY LOBBY: A CRITICAL EXAMINATION OF CLAIMS OF COMPLICITY AND DISPROPORTIONATE BURDENS ON THIRD PARTIES Bapuchandra Kotapati *

ABSTRACT In the wake of the Supreme Court’s verdict in Burwell v. Hobby Lobby, an increasing number of religious individuals have sought exemptions from universally applicable laws on the grounds that abiding by these laws would make them complicit in actions they consider sinful. At issue in these cases are claims of complicity, which arise from the belief that an individual of faith faces the same degree of guilt and punishment as the individual who engages in purportedly sinful conduct. Under this principle, the religious owners of Hobby Lobby claimed that by merely subsidizing insurance coverage, they faced the same degree of guilt as the corporation’s female employees who might choose to use contraception. The Hobby Lobby verdict raises grave concerns about whether employers may now refuse, on religious grounds, to subsidize other forms of health coverage, such as emergency abortions, vaccinations and blood transfusions or, to serve same-sex customers whose choices they consider *

Bapuchandra Kotapati is a second year Economics and Public Policy student at the University of California, Los Angeles. His primary academic interests lie at the intersection of law, economics and policy. He currently serves as the External President of the United Nations Association at UCLA. He plans to pursue a JD after graduation. Editor: Kunal Jhaveri Kunal is a second year economics and political science double major. Apart from serving as an editor for the Undergraduate Law Journal, he is an undergraduate researcher at the history department and an active member of M odel United Nations at UCLA. Kunal intends to attend law school upon graduation.

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sinful. In the past, it has been argued that accommodating c laims of complicity works in our nation’s best pluralistic interests by broadening the scope of the religious freedom doctrine. Such an argument fails to take into account the serious negative externalities that claims of complicity have for citizens who do not share the religious adherent’s beliefs. If the religious freedom doctrine is founded on the desire to protect religious exercise from discrimination that would render believers unequal to other citizens, its protections should only extend so far as they do not undermine the liberties of nonbelievers on the other side. In evaluating such claims for religious exemption, courts must carefully examine both the material and dignitary costs imposed on third parties. For this reason, a framework is required by which courts may evaluate claims of complicity in the future. This article outlines a weighting approach to determine whether a reasonable claim of complicity is compelling enough to warrant an exemption, especially where that exemption could potentially impose disproportionate burdens on third parties, and if so, how such a claim may be accommodated. Courts that appropriately factor in the costs imposed by claims of complicity and critically weigh the religious adherent’s claim against the costs that an accommodation would impose on third parties are far more likely to produce fair and justifiable outcomes. I. INTRODUCTION ‘‘Religious organizations exist to foster the interests of persons subscribing to the same religious faith. . .T he exemption sought by Hobby Lobby and Conestoga would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage.’’

—Ruther Bader Ginsburg, Associate Justice of the Supreme Court of the United States 1 In Burwell v. Hobby Lobby stores, Inc., 2 a narrow five-to-four majority of the Court held that the federal Religious Freedom Restoration Act of 1993 gave

1. Burwell v. Hobby Lobby stores, Inc. 134 SC 2751 (2014). See (Ginsburg, J., dissenting). 2. See Id. Hobby Lobby involved two separated claims of complicity brought forth by employers. It consolidated two cases filed by Hobby Lobby, a chain of craft stores and Conestoga Wood, a closely held corporation that manufactures kitchen cabinets. Both challenged the contraceptive mandate of the Affordable Care Act. See generally Burwell v. Hobby Lobby stores, Inc. 134 SC 2751 (2014). For ease of exposition, Hobby Lobby will henceforth refer to both cases.

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the proprietors of a chain of retail craft stores exemption from regulations of the Patient Protection and Affordable Care Act (PPACA). 3 The PPACA requires corporations with more than fifty employees to provide insurance that includes birth control coverage, 4 barring a provision excluding religious institutions. Hobby Lobby, a closely held, secular, for-profit corporation, argued that merely providing such coverage would make it complicit in the actions of employees who might use contraceptives—conduct the employers viewed as sinful. 5 The Court held that because the owners of Hobby Lobby held a sincere religious belief that certain forms of birth control caused abortions, the corporation could deny employer-paid insurance coverage for them. In the wake of Hobby Lobby, a growing number of businesses, government agencies and private individuals have sought exemptions from universally applicable laws, such as the PPACA, on the grounds that adhering to the laws would make them complicit in actions they deem sinful. The concept of complicity arises from the belief that an individual faces the same degree of guilt and punishment as the individual who engages in purportedly sinful conduct. The key consideration in claims of complicity is whether the individual is guilty of the sinful conduct by failing to prevent it. These claims are explicitly oriented towards the conduct of individuals and groups outside the religious community of the claimants. These individuals, traditionally termed ‘‘third parties,’’ do not have a religious objection to a law, but might be adversely affected by an accommodation granted to a religious objector and suffer negative externalities. As a result, it is very likely that the accommodation of claims of complicity may infringe upon the freedoms of those the claimants view as sinning and levy significant costs on them. Claims

3. Pub L No 111-148, 124 Stat 119 (2010). 4. ACA §1001(5), 124 Stat at 131, codified at 42 USC §300gg-13(a)(4). T he contraceptive mandate of the ACA requires health insurers, or employers to provide their employees with health insurance; to cover some contraceptive costs in their health insurance plans. On January 20, 2012 , U.S. Department of Health and Human Services Secretary Kathleen Sebelius announced a (then) final rule on health insurance coverage. T his rule mandated that there will with no cost sharing fo r FDA-approved contraceptives and contraceptive services (including female sterilization) for women of reproductive age if prescribed by health care providers, as part of women ’s preventive health services guidelines adopted by the Health Resources and Services Administration ( HRSA) for the Affordable Care Act. U.S. Department of Health & Human Services (July 2, 2013). “ Coverage of Certain Preventive Services Under the Affordable Care Act; Final Rules”. Federal Register 28 (127): 39870–39899. p. 39870: 5. A closely-hold corporation is a small, privately held corporation with only a few shareholders. T hese shareholders are usually family members or other close associates.

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of complicity are, therefore, compelling, because granting exemptions to such claims has the potential to marginalize and impose disproportionate burdens upon a particular individual or group. Moreover, it is important to appreciate the reasons for which claims of complicity can be inherently compelling. For instance, days after the Hobby Lobby ruling, the Court’s majority in Hobby Lobby was cited in Wheaton College v. Burwell. 6 Wheaton College, an evangelical Protestant liberal arts college, successfully sought a preliminary injunction from the Court, which allowed the college to refuse to comply with the birth control mandate of the PPACA. The claimants in this case argued that filling out a short form to affirm their religious objection to providing contraception constituted a significant burden on their practice of religion. 7 Wheaton College argued that the mere act of filling out the form made it complicit in the actions of students who might use contraception. Similarly, Kim Davis, the elected county clerk of Rowan County, Kentucky, refused to issue marriage licenses under her name as she claimed that the act of issuing the licenses itself made her complicit in samesex marriage8 She argued that the RFRA entitled her to a religious exemption from the legal requirement that state marriage licenses be issued by her office under her name as same-sex marriage went against her religious beliefs. 9 Finally, in Odegaard v. Iowa Civil Rights Commission, 10 and Thomas v. Anchorage Equal Rights Commission, 11 religious owners advanced claims of

6. 134 US 2806 (2014). 7. T he EBSA Form 700 may be used to certify that the health coverage established or maintained or arranged by an organization qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing, pursuant to 26 CFR 54.9815-2713A, 29 CFR 2590.715-2713A, and 45 CFR 147.131. 8. Davis v. Miller, 15A250 (2015). 9. On June 26, 2015, just hours after the U.S. Supreme Court held that states are constitutionally required to recognize same-sex marriage, Davis announced that the Rowan County Clerk’s Office would no longer issue marriage licenses. See Obergefell v. Hodges, 135 SC 2584 (2015). Davis, an Apostolic Christian with a religious objection to same-sex marriage, sought to avoid issuing licenses to same-sex couples. 10. Odegaard v. Iowa Civil Rights Comm’n, No. CV046451 (Iowa Dist. Ct. Oct. 7, 2013). In this case, Mennonite owners of an art gallery denied a same-sex couple a wedding at their venue because “ their religious beliefs prevent[ed] them from facilitating same-sex wedding ceremonies.” 11. In T homas v. Anchorage Equal Rights Commission, the U.S. Court of Appeals for the Ninth Circuit exempted Alaska landlords from the provisions of the state and local antidiscrimination laws that protect unmarried couples from housing discrimination. Both the State of Alaska and the City of Anchorage have laws designed to prevent discrimination in rental housing. In this case, the plaintiffs claimed that ‘‘their Christian religious beliefs prevent them from renting to unmarried couples.’’

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complicity on similar grounds, seeking to deny same-sex couples wedding services and housing, respectively. As these examples suggest, claims of complicity have taken center stage in the debate on religious freedom. They have been widely advanced in objections to laws concerning housing, contraception, and same-sex marriage. I will explore the nature of such claims of complicity so that those considering exemptions fully evaluate their impact on third parties. A discussion of the distinctive features of these claims also necessitates an overview of the ways in which these claims differ from the religious liberty claims featured in the free exercise cases that RFRA invokes to better appreciate the reasons for which the former impose unique costs on third parties. I will examine the implications of the Court’s decision in Hobby Lobby and its potential impact on claims of complicity in a broader sense. I will then discuss how accommodating claims of this kind may inflict undue material and dignitary harms on other citizens. Finally, I will propose a weighting approach to determine whether a reasonable claim of complicity is compelling enough to warrant an exemption, especially where that exemption could potentially impose disproportionate costs on third parties, and if so, how such a claim may be accommodated.

II. THE NATURE OF CLAIMS OF COMPLICITY Claims of complicity—such as the one advanced in Hobby Lobby—are, in essence, religious objections to being made complicit in the purportedly sinful conduct of others. A given claim of complicity thereby explicitly concerns the conduct of a third party. In deliberating accommodation for such a claim in Wheaton College v. Burwell, Supreme Court Associate Justice Sotomayor analogized the claimant’s position to that of a Quaker objecting to military service:12 ‘‘Suppose the Quaker who’s been called up tells the selective service system that he’s a conscientious objector. The selective service officer to whom he makes this pitch accepts the sincerity of his refusal to bear arms and excuses him. But as the Quaker leaves the selective service office, he’s told: “you know this means we’ll have to draft someone in place of you”—and the Quaker replies indignantly that if the government does that, it will be violating his religious beliefs. Because his religion teaches that no one should bear arms, drafting another person in his place would make him responsible for the 12. Quoting a comparison used by Seventh Circuit Judge Richard Posner in Notre Dame v. Sebelius 743 F3d at 554. See Wheaton College, 134 SC at 2808. (Sotomayor, J., dissent).

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military activities of his replacement, and by doing so would substantially burden his own sincere religious beliefs.’’ As Justice Sotomayor demonstrates, the Quaker’s claim of complicity involves those who do not share the Quaker’s beliefs, and whose lawful conduct the Quaker believes to be sinful. The Quaker argues that he faces the same degree of guilt and punishment as the individual who is drafted in his place. It thus follows that claims of complicity not only concern a third party but also the claimant’s relationship to the third party. This characteristic feature of such claims endows with them with tremendous potential to impose costs upon third parties. In addition, claims of complicity seeking exemption on religious grounds raise issues of third-party harm not raised by other institutions or ideologies. Arguments for religious accommodation through claims of complicity are primarily based on the provisions of the federal Religious Freedom Restoration Act. The RFRA, in turn, derives from the Free Exercise Clause of the First Amendment. 13 In a broad sense, the First Amendment protects the free exercis e of religion. Laycock argues that because the text of the Constitution accords religion a special berth, governments should make accommodations to protect its free exercise. As the Court noted in Zorach v. Clauson, 14 ‘‘it follows the best of our traditions. . . to respect the religious nature of our people and accommodate the public service to their spiritual needs.’’ Moreover, McConnell asserts that the key problem with excluding religion from universally applicable laws lies in understanding our tradition of separating the functions of church and state. 15 This, McConnell argues, is not possible without recognizing that facilitating special accommodation for religion raises unique and, as of yet, unresolved issues of third-party harm. Accordingly, claims of complicity and their potential to impose costs on third parties are central to the debate on religious accommodation. Despite our provisions for the free exercise of religion and our respect for individual conscience, it remains impermissible to ignore the features of claims of complicity that endow them with the capacity to harm other citizens. Few citizens, religious or not, would find it acceptable that a person or a group is singled out to bear the burdens of another’s religious exercise. It is, therefore, 13. Douglas Laycock, Free Exercise and the Religious Freedom Restoration Act, 62 Fordham L. Rev. 883 (1994). 14. Zorach v. Clauson, 343 US 306 (1952). 15. Michael W. McConnell, T he Problem of Singling Out Religion, 50 DePaul Law Review. 1, 3 (2000).

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crucial to appreciate the consequences for third parties and the possible dignitary and material harms imposed upon them. Claims of complicity, by their very nature, raise important questions of whether our practice and tradition of treating religious motives, practices, commitments, and institutions with special respect and care is justifiable and if so, in what way.

III. DIFFERENCES BETWEEN HOBBY LOBBY AND O THER RELIGIOUS LIBERTY CLAIMS It is important to distinguish between claims of complicity, such as the one featured in Hobby Lobby, and their free exercise predecessors, to appreciate the reasons for which claims of complicity impose distinctive costs upon third parties. The claim featured in Hobby Lobby invites a correspondence with the kinds of religious liberty claims debated in the free exercise cases invoked in RFRA. 16 Holt v. Hobbs, 17 Wisconsin v. Yoder18 and Sherbert v. Verner19 serve as paradigmatic examples of traditional religious liberty claims. Claims of complicity differ in both form and structure from their free exercise predecessors. A distinction may be drawn with a tripartite analysis of the burdens of accommodation, orientation and potential breadth of the free exercise claims in relation to the claim advanced in Hobby Lobby. A. Orientation of Claim The free exercise claims advanced under RFRA were not directed at a particular individual or group and did not impose significant costs on individuals outside the claimants’ faith community. Since the claims were not directed at a particular third party, they did not carry the same propensity to harm third-party interests that claims of complicity tend to carry. In Holt v. Hobbs, 20 a Muslim inmate sought exemption from an Arkansas prison policy that prevented him from growing a half-inch beard in accordance with his religious beliefs. Holt, the claimant, contended that this policy was in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). 21 The 16. 42 U.S.C. § 2000bb(a)(4)-(b)(1) (2012). 17. 135 S. Ct. 853 (2015). 18. 406 US 205, 230 (1972). 19. 374 US 398, 402 (1963). 20. 135 SC 853 (2015). 21. Religious Land Use and Institutionalized Persons Act (RLUIPA), is a statute that shares significant common ground with RFRA. See Hobby Lobby, 134 SC at 2761.

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Court unanimously granted Holt an accommodation. The Court instructed that it didn’t matter that he could practice his religion in other ways, such as by observing Muslim holidays and having a prayer rug so long as his claim was sincere. Although Holt argued for an exemption to groom according to the tenets of his religion, he did not do so to avoid complicity in the purportedly sinful acts of another citizen. By contrast, in Hobby Lobby, the corporation’s claim was specifically directed at its female employees. Crucially, accommodating Holt’s claim was not deemed to impose any significant costs on the third party involved–the Arkansas prison system. The Court rejected the state’s rationale for the ban that if an inmate with a beard escaped, it would be harder to find him if he could change his appearance by shaving off his beard. The Court observed that the state could eliminate this possible problem by keeping two pictures – one with a beard, one without – on file for any inmate who wants to grow a beard. The Court was similarly skeptical of the state’s argument that an inmate could use his beard to hide contraband. Justice Alito contended that keeping a comb on hand to check for contraband did not constitute a significant burden on the prison system. Justic e Ginsburg, contrasting the case with Hobby Lobby in her concurrence, noted that “accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief.” 22 Indeed, Holt’s claim was not directed at a third party and did not impose any costs on individuals outside his faith community. Holt’s free exercise claim, therefore, differs from the one advanced in Hobby Lobby not in sincerity or religious significance but instead in its potential to impose costs on a particular third party. B. Minimal Costs to Society Furthermore, the religious liberty claims debated in the free exercise cases were not adjudged to have imposed undue costs upon wider society. That is to say, the exemptions granted to these claims did not carry wide ramifications, nor did they carry social meanings that could create discriminatory scenarios. In Wisconsin v. Yoder, 23 members of the Old Order Amish religion and the Conservative Amish Mennonite Church were convicted of violating Wisconsin’s compulsory school attendance law 24 by declining to send their 22. 23. 24.

135 SC 853 (2015) (see Ginsburg, J., concurring). 406 US 205, 230 (1972). T he school attendance law requires a child’s school attendance until age 16.

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children to public or private school after they had graduated from the eighth grade. The State Supreme Court sustained the claim that application of the compulsory school attendance law to them violated their rights under the Free Exercise Clause of the First Amendment. 25 The Court found no evidence that by leaving the Amish community without the two final years of required schooling, young Amish children would become burdens on society. To the contrary, the Court argued that they had good vocational background to rely upon. 26 The State of Wisconsin’s concerns about third-party harm were therefore deemed to be less substantial as the claimants held a sincere desire to preserve their own religious practice and did not impose substantial costs on society as a whole. In Hobby Lobby, however, the Court’s decision has the potential to impose costs on many women of reproductive age beyond the corporation’s female employees. The verdict is likely to reinforce traditional views of contraception and create discriminatory scenarios that discourage women from using contraception, jeopardizing both individual and societal interests. C. Widely Shared Burden of Accommodation The free exercise cases of the past resulted in externalities that were widely shared. A significant reason for this is that exemptions were primarily sought by claimants belonging to religious minorities. These religious minority claimants sought accommodation for nonstandard beliefs that were not necessarily considered by lawmakers owing to their unconventional nature. Granting exemption to such claims did not impose undue burdens on a particular individual or group in the manner that the claim featured in Hobby Lobby could potentially impose. The costs of accommodating these free exercise claims were limited and the burden of accommodation was widely shared by society. For instance, in Sherbert v. Verner, 27 the religious claimant, 25. In a unanimous decision, the Court observed that ‘‘the State’s interest in universal education is not totally free from a balancing process when it impinges on other fundamental rights, such as those specifically protected by the Free Exercise Clause of the First Amendment and the traditional interest of parents with respect to the religious upbringing of their children. 26. T he Free Exercise Clause of the First Amendment was made applicable in this case by the Fourteenth Amendment. T he evidence showed that the Amish provide continuing informal vocational education to their children designed to prepare them for life in the rural Amish community. T he evidence also showed that respondents sincerely believed that high school attendance was contrary to the Amish religion and way of life, and that they would endanger their own salvation and that of their children by complying with the law. 27. 374 US 398, 402 (1963).

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a member of the Seventh-Day Adventist Church, was discharged by her South Carolina employer because she would not work on Saturday, the Sabbath Day of her faith. She was unable to obtain other employment because she would not work on Saturday, and she filed a claim for unemployment compensation benefits under the South Carolina Unemployment Compensation Act. 28 The Court found that the costs of granting exemption would be minimal and widely shared without significantly burdening a particular third party; no single person or group was singled out to bear the costs of the exemption granted by the Court. 29 As these examples suggest, the claimants in the free exercise cases, as in claims of complicity, must be sincere in their profession of religious beliefs to advance a legitimate religious liberty claim. But ‘‘irrefutable’’ sincerity, and the authenticity of felt perceptions of religious oppression, by themselves do not substantiate the existence of religious burden. The existence of a religious burden under the Free Exercise Clause appears to have been determined by whether the government “affirmatively compel[s]False, by threat of sanctions, [a claimant] to refrain from religiously motivated conduct or to engage in conduct that they find objectionable for religious reasons” 30 or whether governmental action has the “tendency to coerce individuals into acting contrary to their religious beliefs.”31 In the free exercise claims involving Verner, Yoder and Holt, the costs of accommodation on the third party were demonstrably minimal and were widely shared. These claims were oriented towards policies and statutes that explicitly inhibited the claimants’ practice of religion rather than towards the actions of other citizens. Moreover, in all three cases, no significant burdens were imposed on any particular person or group as a result of the accommodation. Herein lies the difference, with respect to the costs of accommodation, between claims of complicity and more traditional claims of religious liberty such as the free exercise cases explored in this part. Consequently, it is important to analyze the multiple dimensions associated 28. South Carolina Unemployment Compensation Act provides that a claimant is ineligible for benefits if he has failed, without good cause, to accept available suitable work when offered him. 29. T he Court ruled that ‘‘there is no compelling state interest enforced in the eligibility provisions of the South Carolina statute which justifies the substantial infringement of appellant ’ s right to religious freedom under the First Amendment. T his decision does not foster the “ establishment” of the Seventh-Day Adventist religion in South Carolina contrary to the First Amendment.’’ 30. Bowen v. Roy, 476 US 693 (1986). 31. Lyng v. Northwest Indian Cemetery Protective Association, 485 US 439, 450 –52 (1988).

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with third-party costs in greater depth.

IV. O VERSIGHT AND O MISSION OF THIRD-PARTY COSTS IN HOBBY LOBBY An examination of the structure of the Court’s decision in Hobby Lobby indicates that the Court failed to take into consideration the full extent of the costs imposed on the corporation’s female employees. The Court granted Hobby Lobby religious exemption under the Religious Freedom Restoration Act because it found that the government had alternative means of providing the female employees access to insurance for contraception. Subsequently, under the provisions of RFRA, any agency, department, or official of the United States or any State is prohibited from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability. However, the government may burden a person’s exercise of religion if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. The most troubling aspect of the Court’s decision in Hobby Lobby lies in its conclusion that granting the corporation religious exemption represented the least restrictive means of achieving the state’s ‘‘compelling interest.’’ 32 The Court structured its decision on the premise that accommodation would have “precisely zero” effect on the affected third party, Hobby Lobby’s female employees, because the government had alternative means of providing insurance coverage for contraception. In asserting that accommodating Hobby Lobby would have “precisely zero” effect on its employees’ access to insurance for contraception, the Court seems to have limited its scope to the material harms imposed on third parties. The Court appears to have not taken into consideration whether and if accommodating the employers’ belief might stigmatize certain individuals or groups and reaffirm discriminatory messages. Indeed, the most harmful effect of the exemption in Hobby Lobby lies in its capacity to exclude, to reaffirm discriminatory messages about the usage of contraception and develop minority stress. 33 The implied meaning of an 32. 134 SC 2751 (2014) (Kennedy, J., concurring). 33. “ Minority stress” is an increasingly recognized psychological process that occurs when people spend time and effort anticipating and compensating for the negative life events commonly caused by discrimination.

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exemption is comprehensible to the third party for whom it reflects and reiterates a discriminatory message about contested social norms such as women’s use of Intrauterine Devices (IUDs). 34 These effects can be demonstrated by examining the costs imposed on third parties in claims of complicity where businesses are granted exemptions from serving gays and lesbians. Same-sex couples not only suffer the stress of being turned aw ay and scrambling to find another service, but also suffer the greater indignity of being treated as something less than full members of society. In Odegaard v. Iowa, Lee Stafford and Jared Ellars, a gay couple who encountered objections to their same-sex wedding, reported that the discriminatory stance of the event space ‘‘hurt them in both tangible and intangible ways.’’ In this case, the Court recognized that ‘‘bias and discrimination against people,’’ as result of the differential treatment permitted by a religious exemption, ‘‘can cause mental health problems.’’ 35 The accommodation of claims of complicity, therefore, derives tremendous power to stigmatize. Granting exemption to claims like that of Hobby Lobby similarly crafts meanings about contested societal norms that can potentially reinforce discriminatory views against women using contraception. For this reason, exemption in such claims carries connotations not only for the objectors but also for those whose actions the objectors view as sinful. Consequently, accommodating Hobby Lobby’s religious beliefs will likely cause dignitary harm to women who use contraception by reinforcing traditional societal standards that ostracize women for engaging in intercourse without intention to procreate. By granting Hobby Lobby an exemption from paying for contraception, devices and methods the company considers “abortifacients,” the Court’s decision creates scenarios that discourage women from using contraception, jeopardizing both individual and societal interests. Adhering to the least restrictive statute of RFRA therefore necessitates a careful examination of the meaning created by an accommodation.

34. For instance, consider social views on the use of contraception in Hobby Lobby. 35. Office of the Surgeon General (US); Center for Mental Health Services (US); National Institute of Mental Health (US). Mental Health: Culture, Race, and Ethnicity: A Supplement to Mental Health: A Report of the Surgeon General. Rockville (MD): Substance Abuse and Mental Health Services Administration (US); 2001 Aug. Chapter 2 Culture Counts: The Influence of Culture and Society on Mental Health.

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V. WIDER IMPLICATIONS OF THE HOBBY LOBBY VERDICT The costs imposed by the exemption granted to Hobby Lobby are not limited to the female employees directly affected by the Court’s decision. The Court’s verdict was sharply divided 5-4, amid concerns that the verdict would likely be cited as precedent in pending contraceptive challenges and for any other challenges that will be filed in its wake. Justice Ginsburg, in her dissenting opinion, criticized the majority opinion for its “startling breadth,” and its potential to open the floodgates to claims by corporations for religious exemptions. Justice Ginsburg pointed to the unusual breadth of the Court’s decision, contending that “[u]ntil this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law,” and that the accommodation granted in this case would “deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage.”36 The Court’s verdict in Hobby Lobby failed to address several areas, each of which enhances the decision’s precedential applicability in other claims of complicity. Justice Alito insisted that ‘‘protecting the free exercise rights of closely held corporations like Hobby Lobby, Conestoga . . . protects the religious liberty of the humans who own and control those companies,” pointing out that a public company has not yet advanced a claim of complicity based on RFRA. Perhaps more significantly, however, Justice Alito didn’t specifically bar one from doing so in the future based on the Court’s Hobby Lobby verdict. Justice Alito also argued that claims based on RFRA would likely be applied only to cases similar to Hobby Lobby, in which birth control is the main factor in religious objection. It is worth noting that the Court’s decision doesn’t explicitly prevent RFRA from being used for other claims for exemption. While Justice Alito was careful to exclude claims based on race in his opinion, exemptions for claims that discriminate based on gender and sexual orientation remain viable within the scope of the Court’s decision. As a result, Justice Alito’s insistence of the narrow scope of the Hobby Lobby verdict provides a compelling juxtaposition. Legislative history suggests that Supreme Court cases that have cited narrowness have proved ineffective at preventing other courts from liberally interpreting the scope of the decisions. The spread of legal acceptance of samesex marriage in the United States, for example, is based on the continued

36.

134 SC 2751 (2014) (Ginsburg, J,. dissenting).

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reinterpretation of similar legal rulings that were purportedly intended to be narrow in scope. The justices insisted that their decision wasn’t an implicit endorsement of same-sex marriage in Lawrence v. Texas where the Court ruled that the state’s anti-sodomy law was unconstitutional. 37 Following the Court’s decision, the Massachusetts Supreme Court ruled that state’s same-sex marriage ban was unconstitutional, citing in part Lawrence v. Texas. Subsequently, Lawrence v. Texas was cited on multiple occasions by the Supreme Court itself in its majority opinion striking down key parts of the Defense of Marriage Act (DOMA). 38 The Court specifically instructed in its DOMA ruling that DOMA wouldn’t apply to states’ bans on gay marriage but several federal and state judges have used that decision to strike down statewide bans. 39 Thus, the Court’s ruling in Hobby Lobby carries wide ramifications for women of reproductive age across the country because the verdict is likely to be cited as precedent in pending contraceptive challenges and for any other challenges that will be filed in its wake.

VI. RECOMMENDATIONS A. Bringing Third-Party Costs Before Court To facilitate an examination of third-party harm, the government must provide a medium for third parties to have their interests represented in court. The government must evaluate whether an accommodation would impose costs on third parties and if so, the government must take steps to alert the relevant third parties to the proceedings. To this end, the government should contact an interest group or representative advocacy group that has broad interests in the issue at hand. For instance, organizations such as National Abortion Federation (NAF) and the National Abortion and Reproductive Rights Action League (NARAL) should be contacted and alerted to the proceedings in the case of a contraceptive mandate such as the one in Hobby Lobby. The government may also accomplish this through print and electronic media by taking out ads in national news sources. In addition, the government should bear the expenses of the third parties’ legal representation. From a political standpoint, it may be an unpopular option 37. 539 US 558 (2003). 38. See United States v. Windsor, 133 S. Ct. 2675 (2013). 39. Paterno, Lide E. “ Federalism, Due Process, and Equal Protection: Stereoscopic Synergy in Bond and Windsor.” Virginia Law Review 100.8 (2014): 1819-873.

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to use taxpayer money to fund legal representation for third parties but it is the socially responsible option to incur some material costs in exchange for ensuring fair outcomes. These costs should be shared equally among us to maximize social outcomes. Not sharing these costs and thereby, requiring third parties to wholly bear the legal expenses to protect themselves would impose disproportionate material burdens on them, even if they were to prevail in the ensuing proceedings. Hence, the government should have to bear the costs of third parties’ legal representation for the benefit of society as a whole. Furthermore, it is necessary for the Court to contact the third parties beyond those most immediately affected by the case. In Hobby Lobby, for example, the corporation’s female employees were most directly affected by the verdict as they were denied access to employer paid contraception. By extension, however, the Court’s decision has the potential to affect the freedoms of many women of reproductive age. This is because Hobby Lobby is likely to be cited as precedent in pending contraceptive challenges and for any other challenges that will be filed in its wake. Therefore, notification should extend beyond the directly affected third parties to bring the full scope of thirdparty costs before court. B. Balancing Costs In evaluating claims of complicity, courts should weigh the religious adherent’s claim against the costs that an accommodation would impose on third parties. Costs levied on third parties are scalar in nature. The greater the cost to third parties of an exemption, the more weight third-party interests should carry. The process of weighing religious claims against scalar thirdparty costs requires that courts set a threshold. This threshold should be s et where the costs of accommodation equal the costs of not granting religious accommodation. If the religious freedom doctrine is founded on the desire to protect religious exercise from discrimination that would render believers unequal to other citizens, its protections should only extend so far as they do not undermine the equality of nonbelievers on the other side. Third-party costs exceeding this threshold amount of equality should, therefore, be considered impermissible. Subsequently, exemptions should not be granted to claims of complicity when a given accommodation imposes costs that breach this threshold. Accordingly, there exist some specific forms of claims of complicity that cannot be accommodated under this proposed framework. First, claims seek ing religious exemptions from coverage for lifesaving measures, such as

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emergency abortions and blood transfusions, should be denied. 40 The scale of the interests and tradeoffs at stake for third parties, between life and death, necessitates such action. Second, claims seeking religion based exemptions from antidiscrimination laws should be struck down. The costs imposed on third parties are not limited to those directly implicated in these cases where they might be denied service or employment by the religious objector; members of the group facing discrimination also face significant dignitary harms. Moreover, claims for exemption from antidiscrimination laws have an even greater potential to reiterate widely held discriminatory messages and stigmatize historically oppressed groups. Thus, requests to discriminate under religious grounds must not be granted accommodation as any such claims are overwhelmingly outweighed by the damaging nature of discrimination. Granting exemption from antidiscrimination laws would undermine the sense of respect and decency that is guaranteed by the Constitution to all citizens. C. Strengthening State Anti-discrimination Laws In addition, states have several paths to specifically address and overturn the pernicious effects of the Hobby Lobby verdict. States could expand the scope of state anti-discrimination laws to include that an employer who does not cover reproductive medical services by gender is guilty of discrimination. In such a scenario, the female employees of Hobby Lobby would not be exposed to the externalities of the Hobby Lobby decision, because state law would then expressly protect their right not to be discriminated against in a health care plan. A state could also require that all employers in the state are obliged, separate from the federal Affordable Care Act, to cover women’s reproductive health care, leaving the choice of contraception or other

40. Kathleen Prieskorn, a New Hampshire woman was three months pregnant and working as a waitress when she realized she was having her second miscarriage. She rushed to her doctor ’s office where, she learned her amniotic sac had torn. T he nearest hospital had recently merged with a Catholic hospital, and due to an exemption granted to such institutions, her doctor could not help her complete her miscarriage. T o get treatment, Prieskorn, who does not own a car, had to inst ead travel 80 miles to the nearest hospital that would perform the procedure—expensive to do in an ambulance, because she also did not have health insurance. Prieskorn stated that she was ‘‘not only devastated, but terrified. I knew that if there were complications I could lose my uterus —an d maybe even my life.” Similarly, T he Jehovah’s Witnesses denomination urges its members to refuse to accept blood transfusions and to not allow them to be given to their children. T his belief originates from their interpretation of a verse from the Old T estament prohibiting the ingestion o f blood. Leviticus 17:10 (New International Version) (“ I will set my face against any Israelite or any foreigner residing among them who eats blood, and I will cut them off from the people. ”).

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reproductive health options to each individual woman in consultation with her doctor. However, such a solution would be rendered ineffective in the twenty states that have enacted their own state analogs of the Religious Freedom Restoration Act. Employers in those twenty states could invoke the state RFRA to seek exemption from obligations to protect women’s reproductive health care, in a similar fashion to Hobby Lobby, which invoked the federal RFRA for that purpose. To overcome the challenges posed by the state RFRAs, legislators could incorporate new amendments to the anti-discrimination or health coverage law. These changes would mandate that the state RFRA does not apply to claims of exemption from insurance coverage for contraception, as protecting women’s reproductive health is in society’s best interests. It remains important to consider the possibility that claims of complicity of greater abstraction might be advanced on religious grounds in the future. In these cases, the costs imposed on third parties may not always be apparent to courts prima facie. That is to say, it may be not always be possible for courts to consider the costs of an exemption before the decision actually takes effect. Nevertheless, courts that appropriately factor in the costs imposed by claims of complicity and critically weigh the religious adherent’s claim against the costs that an accommodation would impose on third parties are far more likely to arrive at optimal results for both.

VII. CONCLUSION It has been argued that, in a broad sense, accommodating claims of complicity, such as the one advanced in Hobby Lobby, works in our nation’s best pluralistic interests. The text of the Constitution accords religion a special berth and governments, as a result, should make exemptions to protect its free exercise. This argument suffers from weak conceptual distinctions and conflicting policy grounds. Few citizens, religious or otherwise, would find it acceptable that a person or a group is singled out to bear the burdens of another’s religious exercise. Because claims of complicity impose distinct material and dignitary burdens on third parties, their accommodation has the potential to narrow rather than expand the religious liberty doctrine. Moreover, granting corporations and private individuals exemptions based on such claims can create discriminatory scenarios, jeopardizing both individual and societal interests. Accordingly, in my view, plainly addressing the threshold characteristics of claims of complicity, as they appear to the reasonable man,

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remains insufficient. It is crucial to evaluate both the material and dignitary costs imposed by an accommodation in a variety of social contexts. The interests of all third parties, beyond those immediately impacted by the claim, must be brought before court. The religious adherent’s claim must be concurrently weighed against the costs that an exemption would impose on third parties and a threshold should be set beyond which such costs should be deemed impermissible. The protections offered by the religious liberty doctrine should only extend so far as they do not undermine the equality of nonbelievers on the other side in order to best protect the interests and, in essence, the liberty of believer and citizen.

US VS. SNOWDEN: GUIDING FUTURE WHISTLEBLOWERS Eunice Lee

ABSTRACT In June 2013, an intelligence contractor named Edward Snowden stole approximately 1.7 million classified files from the National Security Agency (NSA) and later disclosed about 200,000 of them to The Guardian and other news organizations. 1 His actions prompted the United States (US) government to bring three charges against him:2 theft of government property, 3 unauthorized communication of national defense information, 4 and willful disclosure of classified communications intelligence information to an

Eunice Lee is a third-year student at UCLA majoring in Communication Studies and Political Science. She plans on attending law school after graduation. She would like to express her sincere gratitude to Jim Newton for his guidance and patience throughout the course of this paper as well as his invaluable lectures in Journalistic Ethics. She would also like to thank: her loving and encouraging brother, Luke Lee; her inspiring mentor, Jacob Kohlhepp; and her supportive editor, Neekta Izadian. Editor: Neekta Izadian is a fourth year Political Science major with a concentration in International Relations. During her year off, she will be expanding her involvement with the Omid Foundation, which helps disadvantaged women in Iran. She will also be studying for the LSAT and applying to law schools. 1.

Bob T oxen, The NSA and Snowden: Securing the All-Seeing Eye, COMMUNICATIONS O F (2014), http://dl.acm.org/citation.cfm?id=2594502. 2. Criminal Complaint, United States v. Snowden, No. 1:13 CR 265, (E.D. Va. June 14, 2013), available at https://assets.documentcloud.org/documents/716888/u-s-vs-edward-j-snowden criminal-complaint.pdf.; each count carries a maximum of ten years imprisonment upon conviction, 18 U.S.C. §§ 641, 793(d), and 798(a)(3). 3. 18 U.S. Code § 641. 4. 18 U.S. Code § 793(d). THE ACM

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unauthorized person. 5 As of June 9, 2015, the White House rejected a petition of 167,955 signatures that pleaded for his “full, free, and absolute pardon.” 6 Lisa Monaco, Mr. Obama’s Adviser on Homeland Security, asserted that Snowden must “accept the consequences of his actions.”7 Americans are sharply divided over what should be done to Edward Snowden. Sympathizers fear that a severe prosecution may discourage future whistleblowers that might have otherwise been encouraged to come forward. Detractors seek a retributive process that will hold him responsible for his actions and inspire future whistleblowers to strive for a balanced and safe measure of government accountability. In seeking to reconcile the debate, this article proposes the creation of a direct counseling body within the Intelligence Community. This support system would encourage and empower potential whistleblowers with the resources to supplement their moral compass and good behavior. More importantly, it would ensure future US national security and welfare.

INTRODUCTION Should Snowden be prosecuted? Those who say no argue that he was motivated by principle and that his revelations opened an important debate about security and privacy. At the same time, the process Snowden undertook to express his concerns undermined the legitimacy of his whistleblowing and jeopardized national security. Granting him leniency might encourage future whistleblowers to disregard the significance of civil obedience and altogether eliminate the efficiency of laws. In the event that this happens, damages to the people would be difficult to reverse. To balance those interests, this article proposes to initiate an Intelligence Office of Special Counsel (OSC). This independent investigative and prosecutorial agency would allow troubled employees to report misconduct in good faith while enabling leaders to protect secrets that would be devastating for national security if publicly divulged. Leakers who fail to pursue counsel through the Intelligence OSC would not be protected; however, honest

5. 18 U.S. Code § 798(a)(3). 6. Pardon Edward Snowden, P ARDON EDWARD SNOWDEN , https://petitions.whitehouse.gov/petition/pardon-edward-snowden (last visited Feb 20, 2016). 7. Glenn Greenwald, On the Espionage Act charges against Edward Snowden , T HE GUARDIAN (2013), http://www.theguardian.com/commentisfree/2013/jun/22/snowden -espionagecharges.

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whistleblowers seeking to address misconduct would be able to do so internally rather than going outside of the government. Part I of this article recognizes the legitimate concern that Snowden sought to bring to justice. Part II assesses his actions and its repercussions for society. Part III outlines a new body that would ensure a secure nation by providing potential whistleblowers with adequate resources to encourage and supplement their moral compass and good behavior.

I. A LEGITIMATE CONCERN Edward Snowden was concerned that the leadership was overstepping the boundaries of national security and privacy of its people in the name of national security. While working as an NSA contractor, he discovered PRISM, a surveillance program that was gathering communications data from civilians. What concerned him about this program was that the NSA was gathering w eb search history, email content, file transfers, and even live chats of civilians with court-approved direct access that the public was not aware of. 8 Among the uncovered reports that were disclosed was a classified court order issued by Judge Roger Vinson, in which Verizon was compelled to provide the NSA with records of millions of their US customers. 9 Similarly, PRISM secretively gained court-approved direct access to data from top servers, including Microsoft, Yahoo, Paltalk, AOL, Skype, YouTube, Google, Facebook, and Apple. 10 Snowden was troubled by this because he felt the files revealed judicial oversight that had been unjustly weakened by the executive and legislative. Following the 9/11 terrorists attacks in 2001, President Bush declared a state of emergency allowing him to enact the Patriot Act. 11 Prior to this act, the Foreign Intelligence Surveillance Act (FISA) prohibited the US government 8. Green Greenwald, NSA Prism Program Taps in to User Data of Apple, Google and Others, T HE GUARDIAN , 7 June 2013, http://www.theguardian.com/world/2013/jun/06/us-techgiants-nsa-data. 
 9. Green Greenwald, NSA Collecting Phone Records of Millions of Verizon Customers Daily, T HE GUARDIAN , 6 June 2013, http://www.theguardian.com/world/2013/jun/06/nsa-phonerecords-verizon-court-order. 10. Green Greenwald, NSA Prism Program Taps in to User Data of Apple, Google and Others, T HE GUARDIAN , 7 June 2013, http://www.theguardian.com/world/2013/jun/06/us-techgiants-nsa-data. 
 11. Gregory Korte, Special Report: America’s Perpetual State of Emergency, USA T ODAY , 23 October 2014, http://www.usatoday.com/story/news/politics/2014/10/22/president -obamastates-of-emergency/16851775/.

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from targeting any US person located anywhere internationally. 12 In order to obtain communications between US citizens, the intelligence agency had to attain a court order from the Foreign Intelligence Surveillance Court (FISC). Legislated in 1978 to provide judicial oversight of the Intelligence Community, FISC required intelligence agencies to provide specific and articulable facts providing sufficient reason to believe that the records were being sought of a foreign power or an agent of a foreign power. 13 After the Patriot Act, however, the intelligence agencies merely had to indicate on their applications that the records were being sought for classified intelligence activities or an authorized investigation to protect against international terrorism. 14 This enabled them to attain unhindered access to court orders, which undermines the very purpose of court orders that serve to protec t citizens’ Fourth Amendment rights. 15 When the leadership fails to initiate effective judicial oversight, it compromises its ability to consider the full repercussions of its actions. President Obama stated PRISM to be vital for national security and asserted that the US must “make some choices between balancing privacy and security to protect against terror.”16 While this may be true, the leadership overlooked the fact that collecting bulk data on civilians can create a dangerous avenue for national security. Even under the assumption that the government is using its data collection for good purposes, there is immense concern regarding the data’s susceptibility to hostile cyber terrorists, from whom the government cannot guarantee foolproof protection. Just last year, the Obama administration revealed that 21.5 million US citizens had been victimized by a colossal breach of the federal computer system. Presumed to have originated in China, these hackers stole sensitive information regarding 19.7 million people who had been subjected to a government background check and 1.8 million others within their connections.

12. 50 U.S.C. § 1881(a). 13. 50 U.S.C. § 1862(b)(2)(B) (2001). 14. P.L. 107-56, § 215. 15. U.S. Const. amend. IV. T he Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 16. Green Greenwald, NSA Spying Scandal: What we Have Learned , T HE GUARDIAN , 10 June 2013, http://www.theguardian.com/world/2013/jun/10/nsa-spying-scandal-what-we-havelearned.

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Stolen information included the peoples’ addresses, health and financial history, and other private details that may have consisted of Social Security and fingerprints. According to the Office of Personnel Management, “Every pers on given a government background check for the last 15 years was probably affected.”17 Given the contemporary digital age, it is important to consider all of the potential costs to national security. Unfortunately, when legislation is enacted without careful and balanced oversight, leaders can fail to recognize these costs that they would otherwise have been able to address.

II. SNOWDEN’S THEFT AND THE AFTERMATH Leaders have a moral duty to uphold the nation’s laws in order to ensure safety for their people; however, civil laws require communal trust that must be cultivated between both leaders and citizens. Citizens must, accordingly, also demonstrate their dependability through civil obedience. When both sides nurture this trust, they can foster growth and prosperity together. When one side weakens this trust, the resulting discord can jeopardize national interests. Snowden may have had a legitimate concern about the leadership that he felt morally obligated to bring to light, but the way he approached it bore a large part in the repercussions for national security and foreign relations. His actions were detrimental to US economy and overall well-being. A. Preemptive Evasion of Domestic Arrest Since the disclosure of the NSA files in 2013, many have likened Snowden to Daniel Ellsberg, hailing him as a whistleblower. There is, however, a significant difference between the two. Ellsberg surrendered himself to federal authorities immediately after his actions. He willingly faced the criminal charges of government property theft and espionage under trial. This validated the legitimacy of his concerns, and he was ultimately dismissed of charges due to government misconduct. 18 Snowden, however, did the opposite. Following his theft of 1.7 million documents of classified intelligence data, he 17.

Julie Davis, Hacking of Government Computers Exposed 21.5 Million People, T HE NE W 9 July 2015, http://www.nytimes.com/2015/07/10/us/office-of-personnelmanagement-hackers-got-data-of-millions.html?_r=0. 18. Martin Arnold, Pentagon Papers Charges Are Dismissed; Judge Byrne Frees Ellsberg and Russo, Assails ‘Improper Government Conduct,’ T HE NEW YORK TIMES, 11 May 1973, http://www.nytimes.com/learning/general/onthisday/big/0511.html#headlines. YORK

TIMES,

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fled the country before releasing 200,000 documents to the British press. 19 To this day, he remains exiled in Russia, where he was granted clemency. Legitimate whistleblowing requires the whistleblower to take a confident and active stance on his position. Whistleblowers purposefully act in conscious violation of what is asserted to be legal authority, but they offer themselves for arrest by the constituted authorities. They do this in the belief that the law will be on their side and that the judicial process will uphold them. Accordingly, whistleblowers conduct civil disobedience with the full intention of shouldering the consequences because they seek to protect the welfare of the people with their personal sacrifice. 20 Snowden’s preemptive evasion of domestic arrest undermines the legitimacy of his whistleblowing. B. Damages to Innocent People The 1974 Privacy Act prohibits record disclosures concerning individuals who did not provide written consent of such disclosures. 21 Snowden violated this act by disclosing approximately 160,000 intercepted private communications and more than 5,000 private photos to a press who was unauthorized to receive them. 22 Following The Guardian’s revelations, other news organizations followed suit and started to report on them as well. In the process, they failed to preserve the confidentiality of these files. According to the Associated Press, news organizations including the Canadian Broadcasting Corporation (CBC), Brazilian television station Globo, and the New York Times, inadvertently revealed the identities of at least six intelligence officials because of redaction failures. 23 On their nightly news program called “The National,” CBC displayed the names of three NSA employees when its cameras panned across un-pixelated NSA documents. Similarly, Globo exposed the names of two NSA employees during their weekly news program “Fantastico.” The New York

19. T oxin, supra. 20. Bishin & Stone, supra at 1192. 21. 5 U.S. Code § 552(a), available at https://www.justice.gov/opcl/privacy -act-1974. 22. Barton Gellman et al. In NSA-intercepted data, those not targeted far outnumber the foreigners who are, T HE W ASHINGTON P OST (2014), https://www.washingtonpost.com/world/national-security/in-nsa-intercepted-data-those-nottargeted-far-outnumber-the-foreigners-who-are/2014/07/05/8139adf8-045a-11e4-85724b1b969b6322_story.html. 23. Raphael Satter, Media Sometimes Try, Fail to Keep NSA’s Secrets, ASSOCIATED P RESS (2014), http://bigstory.ap.org/article/media-sometimes-try-fail-keep-nsas-secrets.

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Times also published an NSA presentation through which readers were able to decipher the name of an NSA employee even though it had been marked out. Reporter Glenn Greenwald from The Guardian tried to dismiss the disclosures of the six intelligence workers as minor errors; 24 however, the scope of the situation deepened last year when MI6, a security service that operates overseas to defend British interests, was forced to remove agents from Russia and China after officials in Moscow and Beijing deciphered Snowden’s disclosures. 25 During one of his interviews, Snowden revealed that he failed to read every file that he disclosed. 26 Information exposed via mass media is irrevocable. Snowden was surely aware of this when he disclosed 200,000 classified files to reporters, who are unauthorized to access the data. Legitimate whistleblowing must be facilitated by careful consideration of the costs and benefits to the rest of the people. Snowden, however, divulged private communications to an unauthorized body and endangered the lives of intelligence officials who strive to protect national security. 27 For a man who claims to treasure privacy, Snowden cavalierly violated that of thousands of Americans. C. Breaching the Role of a Whistleblower Snowden disclosed mass amounts of intelligence information irrelevant to public interest but sensitive to foreign nations. By exposing MYSTIC, he revealed that the NSA had been recording 100 percent of telephone calls within targeted foreign nations and had been keeping a thirty-day rolling buffer of every phone conversation. 28 Targeted foreign nations thus discovered that the US government was monitoring them. The countries deemed security threats to the US responded by taking precautionary measures to conceal their motives

24. Id. 25. T om Harper et al. British Spies Betrayed to Russians and Chinese T HE SUNDAY T IMES (2015), http://www.thesundaytimes.co.uk/sto/news/uk_news/National/article1568673.ece. 26. John Oliver. Last Week Tonight with John Oliver: Government Surveillance, LAST W EEK T ONIGHT WITH JOHN OLIVER (2015), https://www.youtube.com/watch?v=XEVlyP4_11M. (last visited March 1, 2016). 27. David Schanzer, Staying off the Snowden Bandwagon, I SLAMICOMMENTARY (2013), http://islamicommentary.org/2013/12/david-schanzer-staying-off-the-snowden-bandwagon/. 28. John Robinson, The Snowden Disconnect: When the Ends Justify the Means, SSRN ELECTRONIC JOURNAL SSRN JOURNAL (2014), http://ssrn.com/abstract=2427412.

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and operations. Snowden’s actions created a ripple that hampered the government’s capacity for terrorist threat detection. 29 PRISM and MYSTIC disclosures exposed the US to international notoriety and damaged its foreign relations, particularly with Germany. As Germany grew more suspicious of US surveillance programs, the European Parliament conducted a six-month investigation of the NSA spying scandal and the effects it had on European citizens. 30 From this investigation, it learned that the US embassy in Germany had used a listening station to tap into German Chancellor Angela Merkel’s phone. Upon this discovery, the European Parliament released a draft report demanding the termination of all EU and US mass surveillance programs. Merkel furiously stated, “This is a very difficult situation; there is enormous disappointment on the German side.”31 US relations with South American nations were also affected. In July 2013, a plane carrying Bolivian President Evo Morales from Russia to Bolivia was rerouted and forced to land in Austria. This plane was prohibited from crossing the French and Portuguese airspace because the US suspected Snowden was a passenger on that plane. The Brazilian government was antagonized by this incident and believed it was a form of US intimidation. The Union of South America erupted in anger, and many nations turned against the US. Following the Union’s emergency meeting after Morales’ detainment in Austria, Venezuelan President Nicolás Maduro and Nicaraguan President Daniel Ortega even offered Snowden asylum regardless of US demands for his extradition. 32 Although Snowden believes that his actions served the public a greater good, those actions have had far-reaching ramifications. When Brazilian President Dilma Rousseff learned that MYSTIC had targeted Brazil, she cancelled the $2.5 billion deal with the US for Boeing’s F/A-18 fighter jets and proceeded to contract with Swedish Saab’s JAS 39 Gripens instead. 33 US cloud-based computing services suffered, and domestic service companies consequently witnessed economic decline. Foreign technology companies rejected the use of US-based technology companies because they feared the 29. Robinson, supra. 30. Suné von Solms & Renier van Heerden, The Consequences of Edward Snowden NSA Related Information Disclosures, RESEARCHGATE (2015), https://www.researchgate.net/publication/275019554_T he_Con sequences_of_Edward_Snowden_ NSA_Related_Information_Disclosures. 31. Id. 32. Id. 33. Id.

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possibility of surveillance from the US government. Microsoft recently lost Brazil as a trading partner as a result. Similarly, US International Business Machines Corporation (IBM) constructed foreign data centers to alleviate the fears of their international customers. This cost them millions of dollars. Forrester Research, a technology research firm, reported that US technological companies would suffer total losses of approximately $180 billion by 2016. 34 Snowden sympathizers argue that charging him for espionage is invalid because he neither sold the stolen documents to a foreign intelligence service nor covertly handed them to US enemies. 35 While this may be true, it is relevant to consider that an act of espionage can pertain to activities beyond these. According to the 1917 Espionage Act, espionage is defined as any act that jeopardizes national defense or benefits a foreign country. 36 Snowden disclosed large amounts of intelligence information that were not relevant to public interest. He may have been truly concerned by what he felt to be government misconduct, but he failed to consider the implications that his actions might have for the nation as a whole. His actions generated repercussions that threatened national security, disrupted foreign relations, and damaged economic interests. 37

III. GUIDING FUTURE WHISTLEBLOWERS ALONG A MORAL PATH A. A Gap in the Law The Brennan Center for Social Justice argues that there is a gap in the law implicating inefficient whistleblowing protection. 38 In 1998, Congress enacted the ICWPA to provide intelligence officials with a secure means to report urgent concerns 39 to the Department of Defense Inspector General (DoD IG) or House Intelligence Committee. 40 Despite this means, ICWPA does not directly

34. 35. 36. 37. 38.

Id. Greenwald, supra. 18 U.S. Code § 793(d). 18 U.S. Code § 641. National Security Whistleblowing, BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW (2013), https://www.brennancenter.org/analysis/national-securitywhistleblowing-gap-la. 39. Under P.L. 105-272, § 702(a)(5)(G)(i), “ urgent concern” is defined as: (1) abuse or violations regarding funding, administration, or operations of an intelligence activity (2) a false statement to Congress or a willful withholding from them relating to this. 40. Intelligence Community Whistleblower Protection Act (ICWPA), DO D IG, available at

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protect whistleblowers from government retaliation, such as personnel actions 41 or criminal prosecution. Instead, any protection for whistleblowers must generate from supplemental laws, such as Presidential Policy Directive 19 (PPD-19). 42 PPD-19 was enacted in 2012 by President Obama to provide intelligence officials with whistleblower protection against retaliation. This law provides whistleblowers with an opportunity to have their concerns reviewed by their agency. 43 If the employee feels his or her concerns were not properly addressed by the agency, then the individual can appeal for an additional review by an Inspector General External Review Panel. 44 There are still further concerns with PPD-19, however. First, the initial panel that the whistleblower is directed toward is the very agency against which the employee is filing a complaint. 45 This undermines the trustworthiness of PPD-19’s protective measures. Second, the act does not constitute the right to an external review by a court. This fails to accommodate intelligence employees who seek to report concerns regarding agency misconduct in which all of the government branches are complicit. 46 Frustrated by this gap in the law, individuals request strengthened whistleblower protection for intelligence officials; however, there are concerns with this. Strengthening whistleblower protection for the Intelligence Community might encourage whistleblowers to overlook the significance and

http://www.dodig.mil/programs/whistleblo wer/icwpa.html (last visited Feb 23, 2016). 41. Under PPD-19(F)(4) (2012), the term “ Personnel Action” means an appointment, promotion, detail, transfer, reassignment, demotion, suspension, termination, reinstatement, restoration, reemployment, or performance evaluation; a decision concerning pay, benefits, or awards; a decision concerning education or training if the education or training may reasonably be expected to lead to an appointment, reassignment, promotion, or perform ance evaluation; a decision to order psychiatric testing or examination; and any other significant change in duties, responsibilities, or working conditions. 42. Intelligence Community Whistleblower Protection Act (ICWPA), DO D IG, available at http://www.dodig.mil/programs/whistleblo wer/icwpa.html (last visited Feb 23, 2016). 43. Presidential Policy Directive-19, Protecting Whistleblowers with Access to Classified Information (Oct. 10, 2012), available at http://www.va.gov/ABOUT _VA/docs/President -P o licy Directive-PPD-19.pdf. 44. T his External Review Panel, if granted, would consist of a three-member Inspector General panel led by the DoD IG and two other members who would be designated at the DoD IG’s discretion from IGs of the following agencies: Department s of State, the T reasury, Defense, Justice, Energy, and Homeland Security and Central Intelligence Agency. Id. 45. Jason Zenor. Damming the Leaks: Balancing National Security, Whistleblowing, and th e Public Interest, LINCOLN MEMORIAL UNIVERSITY LAW REVIEW (2015), http://digitalcommons.lmunet.edu/lmulrev/vol3/iss1/5/. 46. Id.

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necessity of civil obedience for a harmonious and safe community. This might lead them to disregard the full implications of their acts and the resulting consequences for the entire nation. In the intelligence realm, failing to consider the full ramifications of whistleblowing is especially dangerous because mishandling and public disclosure of intelligence data can induce severe repercussions for national security. This was demonstrated in the case of Edward Snowden. B. US Office of Special Counsel Rather than seeking to enact legislation that would strengthen whistleblower protection, a classified counseling office should be created in order to help potential whistleblowers determine whether their concerns constitute legitimate whistleblowing and guide them toward the appropriate measures. This is an effective solution to address the consequences of Snowden’s actions. Through it, potential whistleblowers in the future would be provided with adequate resources to express their concerns. Furthermore, they would be guided along a path through which the people can resolve their obligations internally by ethical analysis and suasion rather than taking their concerns outside of the government. 47 The framework for this counseling body can be found in the current US Office of Special Counsel (OSC), an independent federal investigative and prosecutorial agency. Employing about 110 employees, OSC serves as an integral supplement to the Whistleblower Protection Act and protects federal employees from prohibited personnel practices (PPPs). 48 It is headed by a Special Counsel that is appointed by the President and confirmed by the Senate. 49 As an independent agency, the Counsel is empowered with prominent leverage over ethical considerations among federal employees. This helps them manage effective accountability over various federal agencies through directed investigations. Unfortunately, as of date, the OSC is not authorized to provide support to whistleblowers within the Intelligence Community. 50

47. Bishin & Stone, supra at 1226. 48. Prohibited personnel practices, commonly called PPPs, are employment -related activities that are banned in the federal workforce because they vio late the merit system through some form of employment discrimination; retaliation; improper hiring practices; or failure to adhere to laws, rules, and regulations that concern the merit system principles. Id. 49. Office of Special Counsel (OSC), available at https://osc.gov/Pages/about.aspx. 50. Id.

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C. Intelligence Office of Special Counsel The Snowden case demonstrates that it is pertinent to extend this investigative and prosecutorial body to the Intelligence Community. Similar to the OSC, the Intelligence OSC would be led by a Special Counsel appointed by both the President and Congress. In addition, the Counsel would be authorized to pursue an independent external Court review in matters that it sees fit. The Counsel would lead its own investigative board composed of four additional members that it directly appoints. These members would be granted top-secret security clearance. The board’s purpose is to facilitate effective solutions within the government to address abuse and misconduct internally. In order to achieve this, it would hold regular meetings to review filed complaints. During this time, proper investigations would be authorized for specific complaints. Separate private hearings would also be scheduled accordingly for the whistleblower and the accused official or agency head. In cases where the Counsel deems appropriate, he or she would have the authority to directly assemble an external panel composed of four additional members: one representative from the Intelligence Community, 51 one representative from the Office of the Deputy Inspector General, one member of Congress, and one member of the Counsel board. Serving as an internal conflict mediator, the Intelligence OSC would facilitate two-way accountability between the Intelligence Community and the whistleblower, while protecting the whistleblower’s identity from the employer and public during the initial investigations. The OSC would also serve as a middleman between the government and the public. Ten years after thorough confirmation of the misconduct is evidenced and appropriate responsive measures are implemented, cases would be approved for publication in the Counsel’s Annual Report. Creating this transparency between whistleblowers, the Intelligence Community, and eventually the public would provide an effective system of checks and balances within the Intelligence Community. Enacting an OSC within the Intelligence Community would stabilize US foreign relations and enable the government to investigate and address potential areas of mismanagement privately. Without the proper guidance, potential

51. T he intelligence representatives would be designated from a different agency than the one that is being investigated. For example, if a CIA whistleblower is complaining about the CIA, then the intelligence representative would be a non-CIA official (e.g. FBI). T his way the intelligence interest is still there, but the official would not have an incentive to protect its personal agency.

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whistleblowers often turn to the press or open digital platforms. As evidenced through the case of Snowden, these unfiltered file disclosures can generate serious ramifications for domestic economy. To prevent these damages, Congress should enact the Intelligence Office of Special Counsel to promote appropriate internal communication. This would ultimately save the US from international embarrassment, prevent against any disruption of foreign relations, and contribute to national security.

IV. CONCLUSION Snowden had a legitimate concern; however, the process he went about expressing his concern inflicted critical injuries that continue to resonate within the US. Granting him leniency might encourage future whistleblowers to disregard the significance of civil obedience. It is feared that this might altogether eliminate the efficiency of laws, which will be detrimental for the nation’s overall growth and stability. To prevent against this, the leadership should initiate a direct counsel system within the Intelligence Community. Laws are initiated to benefit people who need additional support in finding safety; at the same time, a secure nation is only achieved when individuals who witness leadership misconduct are encouraged and empowered with the resources to report these concerns through sound methods. This artic le proposes a new reform to the Intelligence Community called the Intelligence Office of Special Counsel (OSC). This independent investigative and prosecutorial agency would allow troubled employees to report misconduct in good faith. It would provide whistleblowers with a supportive listening ear and guide them in communicating their concerns conscientiously. Simultaneously, it would enable leaders to protect secrets that would be devastating for national security if publicly divulged. Leakers who fail to pursue counsel through the Intelligence OSC would not be protected; however, if whistleblowers with honest intentions desire to address intelligence disobedience, they would be able to do so internally rather than going outside of the government. Regardless of what civil laws constitute and demand, Snowden sympathizers and detractors will continue to debate what they feel is a just resolution of his case. The reforms proposed here will not satisfy everyone, but they seek to balance the right of government employees to report wrongdoing while also protecting classified government programs.

THE STATE OF CALIFORNIA’S WATER RIGHTS Marina Lindsay*

ABSRACT California is no stranger to drought and is currently experiencing one of the worst droughts in the state’s history. Government officials have been forced to act, instituting multiple mandates and calling for conservation efforts across the state, regardless of individual standing water rights. Existing as an archaic, complex, and hybridized structure; California’s water rights allocation doctrine has been called into question and may be finally ready to receive the repair it desperately needs. Regardless of Californians’ willingness to discuss the issue of water rights and management, water allocation has become a state wide issue which must be addressed in order to avoid further damages and crisis in the near future. Understanding the evolution of Californian water rights as well as knowledge of existing re-allocation efforts in other parts of the world may aid Californian officials (and citizens) in their efforts to surpass the incredible challenges of transforming state water rights. Similar drought conditions in Australia during the millennium drought of the 1990s and early 2000s, forced fundamental policy changes and the institution of a new water rights distribution market stretching across the entire county. By looking to the recent efforts of Australian officials, Californian residents and government representatives alike could all learn a few lessons on resource management and *

Marina Lindsay is a third year Environmental Science major at UCLA who is graduating early and walking this spring 2016. She now plans to take on the world of Environmental law, management, and public policy. Editor: Tahir Naqvi is a second year political science student at UCLA, and plans to attend law school after graduation.

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the importance of looking beyond the drought. Although, Australia’s marketbased water distribution network (similar to that of cap and trade efforts) is not a perfect solution for California (which is more vulnerable to exploitation and market abuses) it is an example of instituting necessary changes and moving beyond historically complicated water rights doctrines. To avoid future water crisis, drinking water shortages, and a land devoid of freshwater resources; Californian officials need to take action today – before the opportunity to incite necessary change fades away.

I. DIRE DROUGHT: CALIFORNIA ’S WATER CRISIS AT A GLANCE California is currently in an emergency state of drought. For over four years, the majority of the state has been classified as a region of exceptional drought as California draws nearer to the precipice of its greatest water crisis to date. 1 Experts in the field of water law have been anticipating accelerated conflicts over water rights for decades. Regrettably, few legislative solutions have attempted to correct these shortcomings since the inception of Californian water law. 2 Supposedly a result of California’s complex web of water laws and proceedings, these years of inaction and lack of foresight may soon transition into a period in which the few remaining implementable changes are unable to address California’s short-term water needs. Arguably, every Californian has a fundamental right to access water daily in order to fulfill the basic needs of drinking, bathing, washing, and watering plants. Without even considering agriculture, if California’s collective access to water supplies falls below that which is needed to supply individuals with drinking water, today’s common water practices may become luxuries few can afford. As a result of this relatively unchanging water law structure, the state has been left with an intricate web of occasionally contradictory water laws and court verdicts dubbed by some educators in the field as the “ugly version” of water law and politics. 3 Water has been controversially discussed as a commodity, lobbied for 1. T he United States Drought Monitor reports a weekly map of drought conditions across the nation in partnership with the National Ocean and Atmospheric Administration, the U.S Department of Agriculture, and the National Drought Mitigation Center. Consisting of five classification schemes with exceptional drought being the most extreme. 2. Aside from the 2014 Sustainable Groundwater Management Act, proposed due to the escalating water crisis, the last substantial water law in California, T he Water Commission Act of 1914, established the permit process used by the State Water Resource Control Board still in use today. 3. In a lecture, published by Russell McGlothlin entitled A Basic Overview of California

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by fish wildlife advocates, and demanded as a fundamental human right on a global scale. 4 With worsening conditions each year, Governor Jerry Brown has instituted mandates calling for increased conservation efforts across the state, regardless of an individual’s water rights standing. Subsequently, the State Water Resources Control Board (SWRCB) has decided who may exclusively maintain their water access while other water rights holders are cut off completely. Water law and policy in California has often been referred to as archaic and outdated –a gentler phrasing of the more passionate sentiments often expressed by veteran water rights proponents. Existing as a hybrid form of multiple water right doctrines, California’s system is known as one of the worst water right allocation structures in the country (perhaps, even the world). California is also one of just a handful of states to combine water rights doctrines in such a divided, convoluted way. 5 Senior and junior water rights holders in California are currently experiencing increasing tensions as drought conditions intensify, perhaps prompting a complete water rights re-allocation overhaul in the near future. In an attempt to plan for these inevitable changes, Californian state officials have already begun researching the groundwork policies they would need to restructure California’s water system. 6 Regardless of Californian’s willingness to debate growing water rights problems and state management, water allocation has become a state wide concern which must be addressed before the drought conditions begin to impede daily life and the human right to access clean drinking water. California water law is long overdue for some groundbreaking improvements. There is no shortage of water rights allocation systems to duplicate or look to for example across the United States or even globally. In recent history, drought conditions similar to California’s have forced government agencies to take strong action through new policies. 7 For example, Australia’s historic millennium drought, Water Law, McGlothlin describes three systems of water law: riparian, appropriations, and a hybrid of the two which he dubs the “ ugly way.” 4. In 2010, the United Nations declared that access to clean drinking water and sanitation exist as fundamental human rights. A motion which was supported by 122 countr ies, abstained by forty, and opposed by none. 5. Oklahoma, and California are two such states utilizing rare hybridized water rights doctrines, however, all hybrid systems differ in their structure. T he common thread between hybrids is simply that both riparian and prior appropriation rights are present. 6. On February 5, 2016 G’DAY USA hosted the US-Australia Drought Dialogues on Water Management and Drought at the Milken Center in Santa Monica to discuss possible adaptations of water markets, new infrastructure technologies, and conservation campaigns. 7. Australia’s historic millennium drought forced certain states to adopt new water rights allocation doctrines as well as substitute in other sources such as desalinization. Although, these

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lasting over a decade, is a textbook case of drought conditions at their worst, forcing governmental response and policy changes. While California and Australia may not be perfectly comparable, they do share a similar governance structure and climate. 8 It must also be noted that Australia is, in fact, a vast country and continent with varying micro-climates contained within – depending on the state and territory. The majority of which, however, do s hare similar conditions to California including the common propensity to experience sporadic droughts. It has been put forward by certain law reviewers that strategies used by Australian officials to survive the drought conditions lasting through the 1990s and into the early 2000s could be adopted and implemented by Californian legislators. 910 Australian officials passed new legislation reorganizing previous water law structure and reassigning water rights through a multifaceted licensing system. In the United States, water rights are consistently associated with property rights and landownership. Despite this association, the federal Public Trust Doctrine and universal human right to water are legally prioritized. 11 The main hurdle to overcome, in the case of Californian water rights redistribution, will undoubtedly be the outraged citizens. Misinformed by their beliefs of entitlement, to use and access water, Californians will likely plead that their water rights are being taken away “unlawfully”. Before delving further into the many criticisms of California water law and policy, it is important to first understand the structure of such policies, as well as how these particular water rights came to exist in a single structure throughout history.

other sources had varying degrees of success with most new desalinization plants shutting down before fully circulating into use. 8. Australia is both a country and a continent, therefore, certain regions or rather st at es o f Australia are comparable to California and not strictly the continent as a whole. T hese areas are mainly the south and western coasts of Australia. 9. Mavens notebook, a water law website and new source, reported on the lessons to be learned from Australia’s millennium drought. In the most significant lesson being that of necessary change. 10. T he University of San Francisco Law Review, 45 U.S.F. L. Rev. 243, also analyzed the relevance of Australia’s transitioning water law structure to equate the necessary changes made in Australia to that which must be made to prevent a more painful outcome in California’s water future. 11. T he Public T rust Doctrine, found in the US Constitution yet originating through the beliefs of Roman Emperor Justinian, holds that the US government is obligated to preserve waterways for public use.

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II. EVOLUTIONS OF CALIFORNIAN WATER LAW : A BRIEF HISTORY In order to attempt an explanation of the complex, contradictory, and simply confusing nature of California’s existing water legislation and practices, legal professionals often choose to simplify the intricate ideas into a case of senior (riparian) verses junior water rights holders (appropriated). 12 In fact, numerous other water rights exist in over-arching categories accompanied by constantly changing water doctrines (which vary from state to state). Water law proceedings can and do get ugly, particularly in California where drought conditions expose the numerous cracks in the state’s various water law doctrines. Some rights holders may claim they have the authority to divert water from major towns and communities, in which case, further laws detailing precedence, rights to maintain flow, and the hierarchy of other individual’s rights come into play. Often the only way to validate one’s true water rights is by filing suit (sue for a contest of who owns what) or petitioning the courts for a decree identifying a previous court verdict. In order to protect the fundamental human right to access water, water flows directed towards tow ns and large urban areas should be guaranteed against diversions and cut-offs. Water is one of the most vital resources in the western United States; it is necessary and imperative to protect public access at all costs. It can take years to fully understand the legal precedence of water rights in their entirety. This article attempts to explain the basic extent of California’s water rights system in order to instill knowledge of certain methods to improve it in the future. In order to comprehend the relationships and prioritization of water rights holders within the state of California, it is imperative to first understand the origins and history of these rights as well as what provisions these rights entail. Unlike most laws governing the United States and all communities contained herein, Western states’ water laws pre-date their acceptance into the Union. 131415 These states adapted practices utilized in the initial territories’ and 12. T his simplification can be traced to Supreme Court decisions such as Lux et al v Haggin et al in which both rights were acknowledge to have been adapted by the state of California, with riparian rights holding more precedence, thereby creating a system of “ senior” and “ junior” righ t s holders. 13. T he Clean Air Act of 1970 and Clean Water Act of 1972, administered under the EPA, create federal standards of air and water quality standards to prevent the cause of human illness. T hese standards are then taken up to be implemented by a variety of state programs for instance the Californian air pollution cap and trade regulatory imitative. T here are no federal water rights laws with standards and guidelines to be delegated in this way. 14. T he United States Department of Justice acknowledges that there is no federal water la w aside from public access laws and those protecting non-appropriated water sources or waterways

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by their previous administrators. 16 Therefore, water rights doctrines were borrowed from preceding laws such as the Common Law of England and the 19th Century appropriation practices of Spain. In the case of California, water law predates its admission to the Union in 1850 –during the times of landgrabbing miners who simply needed to stake their claims, pitch a tent, and carry on. Without any initial federal delegation of water rights to state authorities, the United States government instead choose to adopt the existing water rights doctrines and varying practices without imposing a general federal water law structure. 17 This decision left initial water rights disputes to be administered solely under the authority of local and state courts. The Department of Justice states that “state courts have held that the federal government had an original property right to all non-navigable waters on the territories that formed these states.” There are subtleties to the adaptations of these laws involving certain uses, specific land appropriations, and navigability. 18 It is important to note that while the federal government incorporates states’ existing water rights doctrines for an easier transition, they do not forfeit any authority nor responsibility to govern water rights in the future. In the case of navigability, both state and federal water laws across the United States allocated legal provisions for the public right to use Californian waterways. A predominant reason for this provision is the American

attached to federal lands and reserves. Federal lands waterways are also controlled by the state authority in which the lands are located. 15. California was admitted into the union in 1850, where both riparian and prior appropriation rights had been in use throughout the state. T he former rights of riparian came wit h the adaption of English common laws were appropriation rights stemmed from the Spanish governments water system. Spanish conquistadors who settled the lands of Mexico and California influenced the application of their rights to the settled lands’ water rights doctrines. 16. Before the formation of the United States government the divided territories of North American lands were ruled by the governing monarchies of Spain, England, and France. (Also, the Dutch in although their influence did not influence the governance of Western states.) Lands n o w known as California were mainly governed by laws stemming from Spanish governance until the Mexican-American war of 1846-1848 and California’s following induction into the union. 17. Referred to in documents circulated by the United States Department of Justice. T here are water law guidelines and provisions of authority if the federal government so chose to make changes in the adoption practices of each states, however, the general water law on a federa l lev el deals only with public access and use. Property rights of water are not as thoroughly discussed, refereeing inquirers to their states doctrines and practices. 18. Pubic use as outlined in the Public T rust Doctrine typically included waterways’ use for navigation, recreation, fishing, and some assumption that ecological value is also meant to be maintained.

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economy’s dependency on navigable waters. Consider the Mississippi River – the third longest river in North America flowing over 2300 miles– a historic waterway which played a huge part in the development of the United States from the 18th century onward. Serving as a source of livelihood for the first Native Americans who fished and lived off its banks and as a territory boundary between British and Spanish lands, the Mississippi River later aided in the transformation from colonial United States into the industrialized country that exists today. The Mississippi proved to be a fundamental component to trade, travel, warfare, and a primary source of drinking water. Without provisions to protect navigable, essential-to-life waterways such as the Mississippi, the North American continent would never have developed into what it is today. Even with existing protections for navigable waters, the Mississippi River has been named as one of America’s most endangered rivers nine times since 1991. 19 To ensure the safe continuation of exclusively navigable waters in California the right to use these waterways is guaranteed by the United States Constitution, as well as affirmed by California Legislative Codes. 20 In Article X, Section III of the California State Constitution it is stated that “[water] used for the purposes of navigation, shall be withheld from grant or sale to private persons.” The Constitution states that navigable water should be “permitted to exclude the right of way to such water, whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water.”21 The United States Constitution guarantees these access rights through the Commerce Clause. 22 Both the United States and California Constitutions employ the use of the Public Trust Doctrine, previously discussed. 23 In addition, other supporting California Legislative Codes include that of the Public Resources Code Section 6301, Civil Code Section 830, and Harbors and Navigation Code Section 100, among others. The case of navigability has, at times, proven to be a deciding factor in water rights cases. The LA River, onc e

19. T hese figures are as reported by the American Rivers Organization which gathers information on the most endangered rivers, their historic importance, as well as offering ways to discover and protect existing rivers. 20. Phrasing used by the Western Waters Canoe Club in an article compiling all known references to the protections of a citizen’s right to California waterway use. (Fairly impertinent information to a group of avid canoers.) 21. C.A Const. art. IV 22. T he Commerce Clause enumerates certain powers for the federal government, such as the right to guarantee access to these waters, as well as the basic ability to trade commerce with foreign nations. 23. Id. at 3.

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considered unnavigable, was later reclassified by the EPA after public demonstration of its navigability, entitling it to protections for public access and use. 24 These federal and state water protections for navigable use are occasionally the only preventative measures acting against the overuse of these precious resources, where permitted and riparian right holders may become excessive. A. Water Rights Breakdown Depending on the individual Western state’s climate and levels of precipitation the versions of possible state water rights doctrines incorporated by the federal government took on two main forms as seen in that of riparian and appropriative rights. Riparian water rights, directly adopted from English Common Law, are defined through landownership and property titles whereby a landowner adjacent to a body of water, may use the natural flow of that water on their property for the maintenance of their adjacent land. 25 Due to its basis in land holdings, riparian water rights are in some ways more secure than other subsequent rights. Adopted from England, a land experiencing heavy precipitation levels year round with abundant water fall, the Common Law doctrine is easily applied to the Eastern United States which collectively experience similar climate conditions and a reliable, abundant supply of freshwater. This English Common Law is not as ideally suited for the arid, Mediterranean climate of California, 26 nor the fluctuating climates of Western states. However, the Common Law has been adopted and applied to Californian water law for centuries. The other most commonly recognized form of water rights is that of prior appropriation often referred to colloquially as “first-in-time, first-in-right.”27 24. EPA Administrator, Lisa Jackson, declared the cement -line channel as navigable in 2010, allowing the Clean Water Act to be enforced throughout the rivers watershed which extends upwards of 800 square miles. 25. T his Riparian Rights definition is that which has been states by the Californian State Water Resources Control Board. References to English common law are based on the historic record as well as course proceedings including the decisions reached in the Supr eme Court Case of Lex et al. v Haggin et al. 26. California is one of five Mediterranean climate regions in the world. Classified by climate conditions (wet winters, dry summers) and latitude in relation to the equator (~30 degrees) other regions include Southwestern Australia, the Cape Region of Africa, the Mediterranean Basin, and Chile. 27. “ First-in-time, first in right ” is the common colloquial term used in matters addressing prior appropriation rights.

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Prior appropriation rights originated in California through the mining camps of the mid 1800s, where miners were often trespassers and squatters on public lands. 28 Appropriation rights later developed into a doctrine legally defined as the ability to access water for use on non-riparian land as well as the rights obtained from receiving permits and licenses acquired through the State Water Board. 29 These appropriated waters mainly consisted of water sources flowing under artificial conditions, having been manipulated or diverted from a natural flow. The original sources of these appropriated waterways were often previously-defined riparian sources or offshoots of such sources, regardles s of the legal permissibility of such actions. 30 Appropriation rights are prioritized by time; the rights holder who was first granted the ability to use that water has a priority right. These rights, unlike riparian, are based on a “use-it or lose-it” philosophy. Prior appropriation rights holders who do not use as much water as they have been allocated, whether they need it or not in the long-term, experience a cut off from their allocated right to supplies. On the other hand, riparian rights holders only become dormant rights holders in the case of long term disuse –without forfeiting their priority right standing. Historically, riparian and prior appropriation rights have faced off head to head in court with relatively similar results differing only in their minute details specific to each case and time. B. Riparian verses Prior Appropriation: Who is first in right? In the case of Lux v Haggin the presiding court decided that they had no power to legislate over the opposing rights of riparian and prior appropriation holders citing that both doctrines are legally accepted and presently utilized in California water law. 31 In other words, the court ruled that both riparian and 28. T he California allocation of prior appropriation rights in the sense that property o wn er s may still possess a legacy version of these rights occurred during this time period. T he law of assigning and accepting prior appropriation rights with claims and notices actually has its root s in Spanish water laws, which were brought over by the Spanish conquistadors and settlers who took the Western North American territories that later became what is known today as California. 29. Definition is as stated by the State Water Resource Control and confirmed by published lectures covering the expanse of Californian water law. 30. SWRCB’s public website describes that appropriated rights were initially incredibly informal and often were imposed upon unsuspecting riparian rights holders (owners of land adjacent to water sources and natural diversions –that were then subsequently claimed by new individuals.) 31. Lux et al. v Haggin et al, 69 Cal. 255; 10 P. 674 (1886), is a case proceeding and decision administered by the Supreme Court of California addressing the priority and legal

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prior appropriation rights have legal standing. In terms of property rights, the right to access water should be held paramount to other rights in which it may come in contact with, excluding fundamental human rights and those provisioned by the federal government. The court also stated that the interests of the public should receive more favorable considerations than that of a single individual. Other considerations included the concern that a ruling in which only prior appropriation rights were legitimately used would result in numerous water monopolies limiting public access and use of water throughout the state. Through the Lux v Haggin proceedings it was accepted that both riparian and appropriated water rights were legal if the individuals in question had a lawful claim to hold and use them. However, riparian rights were awarded precedence, followed by the first established appropriated right holder. This case has been referenced in numerous succeeding lawsuits and proceedings, reinforcing the “first in time, first in right” legal basis for appropriation rights. C. Rarer Water Rights The state of California also recognizes the rare, difficult-to-legitimize prescriptive water rights which are acquired through the initial illegal possession of someone else’s water right, equated most notably to the modern tenants’ squatters’ right. 32 These prescriptive rights can only be awarded and legitimized through court proceedings. In addition, since 1914, only the SWRCB can legally grant and distribute new water rights holdings. The year 1914 is often a point of contention in current water rights disputes, especially with growing agricultural water needs in which junior and some senior water rights holders are cut off from their sources despite economic implications (wasted crops and insufficient yields). Many of these rights possessors, with pre-1914 rights, believed –until proven otherwise this past summer– that they would never be denied access to their supposedly “guaranteed” water. Farmers, specifically pre-1914 water rights holders, have outwardly protested the complete lack of prior warning to these cut-offs, articulating to reporters that they never thought they would see the day in which their water rights were denied completely, forcing them to let their newly planted crops go fallow. 33

standing of riparian and appropriation water rights holders. 32. Additionally recognized water rights specific to California are examined by the State Water Resource Control Board, explaining their validity and accessibility. Other righ ts unmentioned through this source would include pueblo, contract, overlying, and reserved. 33. T he interview in question aired in June of 2015 through the CBS Sacramento station

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The year 1914 is not an arbitrary starting point in whic h the state decided to initiate some control, but rather the date of one of the first major California policy water changes since its inception. In 1914, California sanctioned the State Water Commission Act establishing the authoritative control of the State Water Resource Control Board and serving as a benchmark for the complete regulation of Californian waterways. During the transition, all riparian water rights holders were allowed to maintain their existing rights, while prior appropriation rights holders needed to apply individually for an official state water permit as well as receive approval before acting on their previously assumed water rights. This decision ultimately stemmed from the consensus that most appropriative rights were difficult to prove and could be very sporadic depending on the area of diversion (and how diligent supervising local authorities kept their records at the time of first right), whereas riparian rights were recorded with land deeds and titles which could be more easily and officially tracked.

III. MODERN APPLICATIONS: RECOGNIZING RIGHTS Even in these modern times of digital reporting and filing, water rights holders may have difficulty determining if they have a prescriptive, riparian, or pre-riparian right. 34 In order to know for certain, users need to confirm if they have a court-issued decree stating as such. Identifying the passage of rights between holders and issued decrees, by means of property sales or inheritances , is a complicated process. Records are based on the name of the individual who held the right at the time in which the decree was originally issued, which can be easily lost through decades of land sales. With riparian rights the ability to access riparian water follows the land property’s bill of sale, resulting in the continuation of riparian land-owners accessing riparian water sources rather than individuals moving to non-riparian lands and maintaining their original source to water. Most Western states, with the exception of California and Oklahoma, no longer recognize riparian rights. When contacting the SWRCB for water right permitting inquires involving verifications, the process of locating water rights

addressing the most recent cuts to pre-1914 water rights holders, specifically interviewing a local farmer from the town of T racey. 34. T he State Water Resource Control board warns and acknowledges that Californian water law rights may be difficult to determine if not clearly defined through legal documentation as well as describes the long and sometimes costly application process to be approved.

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decrees can be very rigorous and confusing if the names and points of sale have not been diligently tracked. The process of recording these rights transactions relies solely on the previous holders actions of self-reporting to the Division of Water Rights –indicating that they have sold. 35 The SWRCB is not notified by any county recorders, tax authorities, or title transfer companies during the point of sale; an under-reporting of title transfers is a common occurrence. 36 There is, however, an additional avenue of proof for verification if the point of water diversion’s location is known and able to be ac cessed in existing SWRCB Geographical Information System (GIS) databases. If the courts have not officially decided on an individual’s water right standing the individual in question may file a Statement of Water Diversion and Use, which will lead to an official record of their initial claim for a water right, triggering a notice (sent out every three years requesting an “update statement” describing the diversion and continued water use). 37 Therefore, due to a lack of signific ant changes to the SWRCB reporting systems and legal precedents, riparian and prior appropriation rights remain hybridized within California’s water policy system. A. Water Wars: The Case of Owens Valley With the historical introduction of appropriation rights, water disputes escalated quickly resulting in numerous court cases and “water wars” –as entities began fighting for priority standing to divert water for their individual needs. Stream flow manipulations and diversions may completely drain an upstream water body with ease (if not carefully regulated), preventing riparian rights holders from collecting their legally provisioned water source. Without proper due process, entire communities could be cut off from their water diversions by simple, personal upstream water projects conducted by neighbors. In the historic case of Owen’s Valley, the fledgling city of Los Angeles diverted water directly from Owen’s Lake to service its growing population. William Mulholland who oversaw the aqueduct’s construction believed that the gravity fed system running off the plentiful streams flowing

35. State Water Resource Control Board sources list this process and offers up a disclaimer that they are not notified unless this self-reporting occurs. It serves as a layer of transparency in the rights tracking process as well as attempts to offer a reasonable explanation for the extreme confusion that often happens in the verification process. 36. Id. 37. Id.

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into Owen’s Valley from the Sierra Nevadas would be the perfect solution to the budding Los Angeles’ water needs. 38 As the story goes, the economy of Owen’s Valley was soon decimated as its water was rapidly drained, fueling disputes egged on by farmers and ranchers whose entire livelihoods relied on that source of water. After just thirteen years of use, the Los Angeles aqueduc t had drained Owen’s Valley dry –which remains its current state, despite conservation efforts to restore any semblance of its initial function. In addition to leaving an entire community without its economy-driving water source, this once incredible, biologically diverse area is now reduced to a toxic sand pit, triggering respiratory problems for the remaining community members when the toxic soil particles become airborne in strong winds. Dubbed as the Owen’s Valley “water wars” these disputes continue to be fought to this day as other water sources, such as Mono Lake, are also diverted to feed the ever growing metropolis of Los Angeles. These so called wars have even graced the silver screen in productions such as Cadillac Desert and Chinatown. Every side of the water crisis has an advocate and adversary, change is difficult, and the most beneficial solutions to these “water wars,” albeit the most difficult, are currently repressed due to a fear of backlash and decision stalemates. Current water laws attempt to prevent such devastating projects by means of requiring all new water diversions to be approved by either obtaining a water permit or license. Failure to comply (establishing water use without a water right permit or supporting documentation) will incur fees of up to $500 per day as well as further retribution issued by state authorities. 39 SWRCB-granted permits authorize an individual to develop and use their provisioned water within certain limitations, as defined throughout the permit. Limitations relating back to the fundamental provisions of any and all water rights requiring the beneficial and reasonable use of the precious resource. Technically, none of California’s waters may be legally owned by private parties be they individuals, groups, businesses, or even governmental agencies. 40 In order to access large quantities of water for use, water permits and licenses may be issued if the official use of water is done in a beneficial and reasonable manner. Exceptions

38. William Mulholland, of the Bureau of Water Works and supply, was responsible for constructing the infrastructure meant to supply water to the city of Los Angeles in order to grow into one of the largest cities in the world. 39. Fines are determined by the State Water Resource Control Board and degrees of punishment and action are up to their office and authority. 40. Federal law and the provisions of both state and federal constitution hold that water sources are to be held in the public trust available for public access and use.

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to these permits and licenses exist in which the use of under 4500 gallons a day need only be registered under the Division of Water Rights, once the Department of Fish and Game had been notified. These exceptions in water rights are meant to facilitate immediate access to water on small acreages of land –less significant uses compared to larger, permitted diversion projects. B. Reasonable and Beneficial Use The California Constitution requires that state water resources be put to beneficial use and that wasteful, unreasonable use of water be prevented. 41 Unreasonable use cases have also been common throughout California’s water law history. In 1933, the case of Gin Chow v Santa Barbara revolved around the claim that the city of Santa Barbara was unlawfully damming the flow of the Santa Ynez River which then impeded Mr. Chow’s riparian access rights . 42 This case, based around the argument that full flow was needed for proper sediment treatment, was over-ruled. The court decided that the city of Santa Barbara had a reasonable use for the water diversion –providing drinking sources to a growing city– and was beneficially using the excess water captured in the river from storms and other flooding sources. This case set a precedent in water history for cities to construct more damming projects. Unfortunately, dams have proven to be far more damaging over the course of history impeding more water sources than could have ever been foreseen. Many dams are now purposefully removed or serving as points of continuous debate and concern, such as Hetch Hetchy in Yosemite National Park. Due to the original ambiguity of the term and preceding laws, “unreasonable” use verdicts may often appear subjective. However, despite a claim for subjectivity, overly excessive water use should be closely regulated by these courts in order to prevent abuses in the system as a whole. C. Permits and Licenses As previously discussed, the SWRCB establishes water rights by means of granting permits. In addition, this office also awards water licenses to compliant rights holders. Current permit holders –who have essentially demonstrated good behavior– are given more freedom to use their right to access water. In other words, SWRCB schedules inspections of the holders’ 41. 42.

C.A. Const. art. X, § 2. Gin Chow v Santa Barbara. 217 Cal. 673 (1933).

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water projects and in the case that they prove to be in compliance with their permit consistently, they are granted more access and responsibility to maintain best management practices. This allows the SWRCB to focus its resources and effort on those who are more likely to be non-compliant. The initial permits may be granted through an application process in which the proposed project must meet the following criteria: i.

Water for diversion is proven to be available.

ii.

Individuals with higher priority rights will not be depraved of their rights.

iii.

Project efforts will not harm public trust resources.

iv.

Project is shown to be a benefit to the public interest.

v.

Environmental impacts are approved as per required in the California Environmental Quality Act (CEQA).43

At any particular time, the Water Rights Division has in excess over 500 pending applications which may take up to 3 to 4 years before being officially approved. If a project is considered to be especially harmful to the environment –perhaps threatening an endangered species or sensitive habitat– application processes may take much longer to be approved, if at all. D. Over Allocation: Is there enough water to go around? Times of drought have raised the concern that more water has been appropriated by the SWRCB throughout the state of California than that which is actually available for use. Given the recent reports of cutbacks to senior riparian and pre-1914 approved rights holders’, over-appropriation of water sources is a relevant concern with legal implications. According to the SWRCB, new permits are granted only when there is a “reasonable likelihood”

43. Details of the application process are publicized by the State Water Resource Control Board and by means of their regulation authority can be modified and changed from this version.

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that the water is available in the surrounding watershed sources. The SWRCB office states that water sources are not guaranteed nor that they will be constantly available in the allocated diversion. Therefore, in California during episodes of drought water rights are over allocated multiple times beyond available sources as the stores of water dwindle beyond recharge rates. Until the passage of the recently-added Sustainable Groundwater Management Act (SGMA) in 2014 (the most significant change to water rights in the last century), the SWRCB was only able to monitor surface water sources. Previously, groundwater sources were completely unregulated, aside from the jurisdiction of local authorities who had developed their own guidelines of use. Previous groundwater rights functioned in much the same way as riparian; those with immediate access above a groundwater source need only drill into it by means of their own wells, regardless of which groundwater stores were impacted. With the addition of SGMA, groundwater stores may now be more efficiently managed and integrated into the water rights system. Unfortunately, the act is at best ambiguous, requiring more personal will power and effort from local authorities than water compliance laws would normally dictate. This over-allocation of water and reliance on individuals’ personal willpower to remove only reasonable amounts of water is what has prompted the SWRCB to take action beyond any previous governance in their history- actually limiting the water available to the most prioritized rights holders, with the exclusion of drinking water which is a fundamental human right. When referring to human water rights and water law, in a broader scope, it is necessary to emphasize that despite misconceptions involving water entitlement in the Constitution, water is not considered to be a transferable commodity. Water cannot be possessed as a legally privatized commercial good. Individuals can and do pay to access water, by means of applying for a water rights permit or their monthly water bill sent to their local utilities company. However, as declared by the United Nations in the Universal Declaration of Human Rights, all humans have a legal right to access clean drinking water that is safe, accessible, sufficient, and affordable. 44 In the United States there are further legal provisions contained within the Public Trust Doctrine, composed of laws and legal precedents which serve as a guiding principle for government to protect and preserve waterways for public use. In reference to this legal precedent, access to beaches and use of waterways mus t

44. United Nations conferences determined that there is a fundamental human right to wat er as well as sanitation which can be upheld and protected by meeting these outlines criteria.

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remain unrestricted as public goods. California’s constitution further supports this collective, public ownership of water in Article X, Section V stating that water now appropriated, or that may hereafter be appropriated, for sale, rental, or distribution is hereby declared to be of public use. California water law is intricate and complex with court cases deciding the majority of rights disputes on an individual level. Until this past year, the SWRCB remained relatively passive in regards to water rights allocation controversies, serving more as an administrative office filing permits, than as a fundamentally instituted water rights re-distributor. Even with pressing drought conditions accelerating the need for new water law legislation, including the knowledge that some communities in the Central Valley have already been experiencing tap-water shut offs due to a lack of supply, virtually no proposals for a complete or even partial water rights re-allocation plan have been set in motion, as of now. 45 California’s complex water rights system is atrocious in times of drought. Droughts are no stranger to the Mediterranean climates of the world, including that of both California and Southwestern Australia. It is clear that regardless of whether or not the most recent drought in Californian his tory comes to a quick end in the next few years, the water rights system could and should be improved upon. In the case of imminent future drought perhaps years or decades from the end of the current one, California’s water rights system should be reevaluated. Australia offers one such example to base new water policy off of, although there are a few points of contention such as the marketability of water and supplementation of other artificially gathered water sources. 46 Other water law officials believe that water markets should be instituted into the United States system. Ideally, these markets would facilitate the purchase of excess water –bought and sold for profit– that is not needed to maintain the human right to drinking water in adjacent communities.

45. T ap water shut offs have been reported throughout numerous new sources including a Mother Jones Article from July 2015, titled “ California’s Drought Is So Bad T hat T housands A r e Living Without Running Water.” 46. Artificial water sources refer to the numerous desalinization plants which were built and subsequently abandoned when higher precipitation levels ended the Australian millennium drought. Recycling water programs as well as a variety of other new water technology strategies have also been applied across the most arid climates of the convenient with varying degrees of success.

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IV. CALIFORNIA ’S WATER FUTURE: THE POSSIBILITY OF COMMODITIZED WATER Arguments concerning the possibility of a for-profit water market receive mixed reviews from even the most experienced water law authorities. Currently, Californian water rights are purchased and transferred for financial gain. However, these are not legally facilitated transfers or part of a regulated water-based market. Buzz Thompson, a professor at Stanford Law School’s Environmental and Natural Resources Program, entertains the idea that once human rights and basic environmental rights to water (for survival) have been met with available water sources, a commodity driven water market economy could be very successful. 47 I disagree with the idea of water being commoditized on the basis of gaining profits. Historically, with events such as the “Housing Market Crash” of 2006, we have seen a series of profitable markets fail with absolutely devastating results. Aside from the abuses this system could delve out to wildlife areas, a monetary-based water market risks exploitation and extreme market abuse. Thompson ignores discussion of these types of abuses and asserts that water flows should be directed to the most beneficial use despite wildlife concerns (if there are in fact greater financial gains in the monetary-based regulatory sector). I do agree that a water market meant to facilitate water transfers to areas of most beneficial use could improve drought conditions and mitigate some problems. I draw the line at creating a hastily drawn-up, man-made market developed specifically for facilitating investments and profits. Water should not be tied so closely to human greed or market trading. Linda Sheehan, Executive Director of the Earth Law Center, offers a counter-perspective to Thompson by asserting (that in order to ac hieve the initial goals of allocating enough water for human needs as well as maintaining ecosystem functionality) the idea of commoditized water cannot be the foremost way of thinking. 48 She bases her professional belief on past environmental justice issues and relations which will likely also be abused if the promise of water profits loom on the horizon of these would-be market successes. Wildlife, minorities, and those without strong ties to existing 47. Buzz T hompson expressed his ideas and opinions in a public forum taking place at the UCLA Hammer Museum in the fall of 2015 as a part of the “ Last Wave: Who Owns Water?” public lecture series event. 48. Linda Sheehan was present as a public speaker at the UCLA Hammer Museum in the fall of 2015 as a part of the “ Last Wave: Who Owns Water?” public lecture series event. After Buzz T hompsons assertion that commoditized water was a more beneficial avenue for future changes, Sheehan rebutted with these wildlife-based water concerns.

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investment markets would likely be left out of the loop of potential benefits. California will gain nothing from a market that only promotes the success of a few individuals who know how to control investments and money transfers. If a water-market is going to work certain protections must be put in place to prevent abuse and protect those who may not have the strongest voice in these debates. There are no rights currently held solely for wildlife habitats in the current California water law system. There are, however, provisions to maintain the flow and basic functionality of these water sources. These provisions are mostly implied and do not hold up against the legal standing of water rights holders in cases involving human need, unless the entire population will be destroyed. These cases are based primarily on the Endangered Species Act which comes into play only during the most devastating circumstances. As discussed previously, in the case of Owen’s Valley, the few existing legal provisions for wildlife protection are not effective in limiting the destruction of biologically diverse ecosystems. A. Lessons from Australia The current structure of Australia’s new water law and policies are based on the functionality of a water-based market with complementing environmental provisions. Near the end of their millennium drought Australian officials were finally able to undergo significant legislation changes to solve a majority of their water crisis problems. Unfortunately, changes were not made until the government’s hand was forced –when conflicts escalated to the point of locking up remaining water sources in poorly used, inefficient water licenses. 49 Australia in no way possesses a perfect water rights system today, however Australian states are now equipped to react appropriately when rainfall is lacking in a given year. The new Australian water rights platform became a robust water transfer system, utilizing an effective water market in which water did flow to the most beneficial use. Existing much like a cap and trade program, 50 the Australian water market allocates a certain number of permits to be used in a given year and allows users of those permits to sell if 49. University of San Francisco Law Review, 45 U.S.F. L. Rev. 243 examines an application of Australian water law changes to existing California water law and water crises. 50. Cap and trade programs involve the regulation of resources or often pollutants. For instance the carbon dioxide cap and trade program established a “ cap” of a certain number of allowed pollutants in the atmosphere, all facilities who contribute to pollution are allocated a permit to pollute. T hose who choose to install cleaner technologies, limit their pollution may t h en sell their right to pollute for economic gain.

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they have excess water. 51 For instance, if a sheep framer in Australia was allocated enough water resources to allow his entire herd to drink for one year, but happened to have sold or lost half of his flock from the previous year (which determined his annual allocated water right), the farmer could then sell his remaining permitted right to the other half of his excess water. The farmer in this case would benefit financially, the water would go to an area of beneficial use, and another individual would benefit from additional water sources. In Australia, there are also official water rights allocation for wildlife which may be obtain in a variety of ways based on condition, priority uses, and natural function. Australian government officials also benefit from the receptive nature of their citizens, who welcome w ater right changes and have imposed few abuses on this market system, thus far. Australia did not achieve these accomplished changes easily—it was a slow and meticulous process. Australian government started out like the Western United States, with state-based rights, although Australia’s central government later assumed these powers in the late 1980s. A first step in implementing the necessary changes to address their own dire drought, new legislation followed soon after in 1989 with the passing of the Water Act, which consolidated the regulation of surface and groundwater sources. Environmental protections were then enhanced with the 1992 Precautionary Principle adapted from the United Nations Conference on the Environment. Then to effectively unify these changes across the continent’s varying governments, the National Water Initiative (NWI) of 2004 was signed into law by the Council of Australian Governments. Another important, and often overlooked, key to the Australians water rights re-distribution success was that the citizens were open to the changes. Australians understood that they live on one of the most inhospitable landscapes in the world and that they had to be organized and receptive to changes in order to make it through their near two decades without sufficient rainfall. California, with a tendency to experience extreme drought conditions, desperately needs to reevaluate existing water law structures. Leaders in water law consent that attempts to remedy California’s most noteworthy shortcomings should be proceeded by incorporating effective groundwater management legislation into the existing structure. 52 Through the passage of 51. Australian water allocations are assigned on an annual basis depending on the amount of waterfall and required use by each party. 52. T his fundamental step was referred to in published lectures, governmental sources from the SWRCB, as well as throughout the University of San Francisco Law Review, 45 U.S.F. L.

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SGMA this has been accomplished, at least in theory. SGMA is still accompanied by a package of strong criticisms despite its good intentions for effective change in Californian water law. Californian water law authorities should also consider adopting more environmental protections such as the same United Nations Precautionary Principle so as to protect against environmental degradation and irreversible damages. 53 The most significant change to Australian water management was the new water licensing program. Although, California already has its low level licensing system –which is not based on the commoditized nature of water— it could adopt many features of the watermarket licensing structure now utilized by Australian communities. This adoption process may be quite extensive and “easier said than done”. Therefore, it is important to note that while Australia’s current water law polic y could bring about necessary changes in California, adopting Australia’s water law structure outline may not be necessary for future success in California’s water regulation. B. Changes in California Legislation It has been argued that a steady stream of new water rights laws and policies will occur in time to remedy the many problems of existing water rights structure in California. I disagree with this assumption on the basis that water overdrafts and shortages in times of drought can reach the point of causing irreparable damages to whole scale communities and wildlife areas. Californian water rights leaders understand the core problems of their management system and do have legislative powers to apply most of the necessary changes. The major governmental decisions are mainly when and how to implement these would-be changes with the least amount of public resistance. Timescales for legislation improvements could either be too fast or too slow to significantly impact the state’s water future. Government driven policy implementation changes tend to be “slower than desired” by the general public. A time scale requiring implementation within a year or even five years, as in the case of the initial Clean Water Act of 1972 54 , may be too soon to be fully integrated. If the task is too daunting in this time scale it may be put off Rev. 243 examining potential adaptations of Australian water law as applied to the water rights structure in California. 53. T he Precautionary Principle is used as an environmental protection by countries across the world including Australia, as adopted by the United Nations. 54. Individuals creating this act reportedly believed that they would solve their water problem by 1975, as lectured on by Megan Herzog –Professor at UCLA’s School of Law.

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and ignored until another task force is dispatched to find a new resolution. The same can be said for implementation periods which extend too far into the future; government officials may put-off necessary efforts (believing that they have plenty of time to react), until the time comes to report results. In which case, the government officials in question may soon realize they have added nothing new to their existing structure. It is nearly impossible to gauge the rate at which these changes can be made and successfully adapted into the greater water law structure. California could potentially follow the strategies used by Australian officials to carry-out the water rights structure overhaul in their communities. At the very least, similar statewide conservation campaigns could be instituted. There are many similarities which would allow California to learn a few lessons from Australia and institute necessary changes. 55 The Public Trust Doctrine acts in much the same way as the Precautionary Principle used in Australia. California does employ a licensing system. However, to act as effectively as the current Australian system, the existing Californian (licensing) permitting process and right provisions would require updates. (California’s current licensing system is merely a more trust-based permit in which inspections of correct use occur less frequently, rather than the Australian system in which licenses are a means to water sale.) A complete foreign policy adoption or overhaul may not even be constitutionally possible in California with the current laws in place. This constitutional uncertainty will likely be challenged in the higher courts at a later date once initial water laws changes are proposed. Californian officials are tasked with the insurmountable challenge of creating effective changes without impeding on individuals existing property rights and inciting backlash. If they implement small changes effectively, California’s existing water rights structure could transition from its “archaic, ugly version” into a beautiful, streamlined system worthy of the 21 st century. C. Steps to Success A Californian water law rights solution will exist only if the legislation works –diligently, quickly, and thoroughly to start transitioning water law policies today. A water market should exist in order to transfer water to and

55. A report titled, “ Lessons from Australia” was published in February 2016, after a partnership between California’s Governor’s Office, Australian government officials, and employees from T ree People detailing possible adaptation s to be implemented as a result of the join “ Drought T alks.” (Id. at 2.)

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from sources –without detrimentally impacting ecological systems– so that water may flow to areas of “most beneficial use.” I do not believe this market should be commodity based or for profit. Capitalism’s Achilles heel has and will likely forever be the human condition of greed. Profits should not be attached to a fundamental human right nor an object, so to speak, that is legally held to be possessed by the public in trust for mutual and collective interests. To clarify, I believe that water should be transferred to and from areas of mos t need, for a fair cost, facilitated by local, state, and federal authorities for compensation of that transfer. Reserve lands –areas of great ecological significance– should be backed with more substantial protective legislation and a comprehensive punishment framework for those who do not follow them. D. The Current State of Californian Water Law California water legislation is currently in a very poor state, devastated by a lack of precipitation and significant environmental protections. Humans have a right to safe drinking water. I would argue that flora and fauna should also have a right to exit in their habitats without fear of detrimental construction projects and debilitation. State water authorities should be able to transfer water to and from areas of greatest supply to those of most vital need at a fair nonmarket driven price. Complex legislation which constantly crosses back and forth across a field of misidentified entitlements and political assumptions should not be the basis for one of the greatest economies in the world. 56 Agriculture efforts should be able to function without crops lying dormant and dying, while simultaneously no human community should be forced to function without a basic drinking water supply. Aside from the solutions associated with obtaining additional water sources in the case of drought (including recycling efforts, storm water capture, and the emergency option of desalinization), California’s water laws and allocation systems should be improved before current drought conditions turn even more ominous. A possible increase in precipitation levels, within the next few years, may abate and lessen existing tensions; however, these would only be temporary solutions. California water law can and should be transformed; the state just needs the legal backing,

56. California has the largest economy of all the states and if it were a country in its own right, would have either the seventh or eighth largest economy in the world. California ’s gross state product was a reported $2.312 trillion in 2014. In addition California is the largest agricultural producer and exporter in United States feeding much of the world’s global populations.

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dedication, and willpower to do so effectively. The current state of California’s water may be dry and brittle at present, however, with time and effort it could be one of the most fluid and easily used systems in the world. California’s state officials eagerly wait for returning rainfall and the ability to move past these problems without solidifying the solutions. These major legislation issues must be addressed today while there is a focused plan for remediation and these real incentives for change are still at the forefront of the collective attention of state officials. Failing to correct these legal holes in this period of drought will only greater intensify the constraints felt by the next governmental body presiding over our lands of debilitating drought.

CIVIC EDUCATION: A BETTER HATE SPEECH CODE John Malchar*

ABSTRACT Citizens affected by harmful or bigoted speech often search for solutions to make their environment a safer and more inclusive space. One such example is a Hate Speech Code, a law that restricts certain kinds of speech because of its harmful or damaging effects on marginalized groups of people. However, in a democracy like the United States of America, the free and open discourse of ideas, even those that most people despise, form the bedrock of civil liberties and the judicial system. Consequently, the better solution is civic education that actively trains citizens to be more accepting and tolerant. This paper argues that civic education is both a real-world solution to the attitudes that enable hate speech in society and a better permanent solution than a legal code.

*

John Malchar is a second year Political Science/Business Economics double major at UCLA. He plans on applying to law school after graduation and hopes to study Constitutional Law. Editor: S amantha Kuo is a first year mechanical engineering major at UCLA who hopes to attend law school after graduating.

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Free and open discourse has traditionally been a main component of education on college campuses, a hallmark of the diversity and inclusivity of thoughts present in universities across America. The freedom to speak one’s mind facilitates educational conversations between students and encourages the cultivation of knowledge both in and out of the classroom. But not all speech is educational in nature, and some harmfully targets students and destroys their learning environment. For instance, the University of Missouri attracted national attention in late 2015 when students released statements describing the discrimination they faced regularly on campus. In early November, tension between students and administrators reached a tipping point as students of color organized the activist group “Concerned Student 1-9-5-0” to demonstrate against “Mizzou’s history of racial violence and exclusivity. 1 “ Incited by the repeated use of degrading language by their peers around campus and the aggressive nature of incidents targeting the Student Council leader, members of “Concerned Student 1-9-5-0” confronted University President Tim Wolfe about their grievances at a local parade and demanded his official response. The members deemed President Wolfe’s comments unbecoming of the president of a diverse university and posted a recording of the exchange online, leading the group to form a list of demands, including an apology from President Wolfe, his official resignation, and the introduction of “comprehensive racial awareness and inclusion curriculum. 2 “ Despite the national attention surrounding the protest, an extended hunger strike by one student activist, and the morality behind their cause, the school only agreed to comply with the demands and fire Tim Wolfe after the football team joined the protest. 3 Later that week, students at universities all across the country organized and demanded similar improvements to diversity standards at their respective schools. This incident is merely one example of an all too common experience for 1. (Concerned Student 1-9-5-0. (2015, October 23). List of demands from Concerned Student 1950 group. Retrieved from Columbia Daily T ribune: http://www.columbiatribune.com/list -of-demands-from-concerned-student-group/pdf_345ad8449f05-5479-9b64-e4b362b4e155.htm 2. Id. 3. Dowling, T . (2015, November 27). One month later, what’s next for University of Missouri protestors? (USAT oday) Retrieved from USA T oday College: http://college.usatoday.com/2015/11/27/whats-next-university-of-missouri/

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people affected by harmful, negative, and bigoted speech. Victims must first gain recognition from the community regarding the severity of their claims before seeking out ways to make their environment a safer, more inclusive space. In this example, along with countless others, many different solutions were proposed by those affected: increased racial education, greater representation for people of color in faculty and administration, and Hate Speech Codes restricting certain kinds of violent or harmful speech. While many of these proposals have merit and would make meaningful changes to a school’s learning environment, speech restrictions cannot change a culture of racial intolerance and instead produce negative externalities. Each new generation has the opportunity to redefine the boundaries of free speech. Therefore, society must be careful to judge speech from a tempered, legal perspective and find other methods for correcting the content of speech. All speech, even that which most find reprehensible or wrong, carries political significance and must remain free. Democracy, characterized by citizen participation and the free and open discussion of ideas, works only because each citizen is guaranteed the right to speak his or her mind without fear of retribution. In America specifically, free speech has become the most valued legal right and forms the backbone of the political and judicial systems. Consequently, any infringement on an individual’s right to speech symbolically represents an attack on American values. In the current political climate, the mantra of, “it’s freedom of speech. . . I can say what I want,” seems to define the actions and attitudes of people holding unpopular views. Similarly, the Supreme Court has consistently ruled in favor of extensive freedoms, especially for controversial or unpopular thought. Under current case law, speech must directly incite violent action in order for it to be restricted, and under no circumstances can prior restraint –the suppression of speech that has not yet been expressed–be applied. 4 Regardless, is it rational to say that all speech must be protected because our political system relies on open discourse? What if there were categories of speech, some of which would be unprotected under certain circumstances? This line of reasoning leads to the development of Hate Speech Codes, or laws meant to limit hateful, discriminatory, or racist speech in order to protect the well-being of specific, marginalized groups. Hate Speech Codes have found little traction in the United States Federal or State governments, but have been 4. Administrative Office of the U.S. Courts. (2016). What Does Free Speech Mean? Retrieved from United States Courts: http://www.uscourts.gov/about-federal-courts/educationalresources/about-educational-outreach/activity-resources/what -does

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implemented on a local level, specifically at colleges and universities. According to the Foundation for Individual Rights in Education’s Spotlight on Speech Codes 2016, 217 public and private universities maintained at least one policy that “clearly and substantially” affected students’ freedom of speech. 5 For this report, the institute studied mainly private institutions, which have claimed a greater ability to implement their own rules and regulations because students choose to either comply or leave. 6 Consequently, proponents of Hate Speech Codes at private institutions argue that government does not have the ability to intervene in a private university the same way it does at a public university staffed by state actors. However, the government can compel private enterprises to change their policies by demonstrating a “compelling state interest” in protecting certain groups’ interests. 7 For instance, after World War II, increased nationalism led the federal government to integrate much of the public sector, even as early as 1948 when Truman desegregated the military. 8 When private businesses continued to discriminate against African-Americans through the 1950’s and 60’s, the Civil Rights Movement called for changes in public policy to combat this racism. Laws such as the Civil Rights Act of 1964 and subsequent corollaries were written to prevent discrimination against any protected class, further defined as classes based on race, gender, ethnicity, or sexual orientation. 9 Currently, a private institution may only discriminate universally without targeting specific members of a group or class. This prevents rights from being categorically denied even by private entities. Thus, precedent exists for all Hate Speech Codes, even those at private universities, to be legally evaluated to determine if they infringe on constitutional liberties. Returning to the previous example, underlying the many problems at the University of Missouri was a lack of responsiveness to the demands of students

5. Foundation for Individual Rights in Education. (2015, December). Spotlight on Speech Codes 2016. Retrieved from Speech Code Reports: https://issuu.com/thefireorg/docs/scr_final_issu 6. Id. 7. Siegel, S. A. (2006, October). T he Origin of the Compelling State Interest T est and Strict Scrutiny. The American Journal of Legal History, 48(4), 355-407. 8. Harry S. T ruman Library and Museum. (2015, July 26). This Day in Truman History: July 26, 1948. Retrieved from T ruman Presidential Library: http://www.trumanlibrary.org/anniversaries/desegblurb.htm 9. National Archives. (2016). Teaching With Documents: The Civil Rights Act of 1964 a n d the Equal Employment Opportunity Commission. Retrieved from National Archives for T eacher s: https://www.archives.gov/education/lessons/civil-rights-act/

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of color. The changes implemented after the protests reached full force had been requested by students for years. These included more diversity in the faculty and administration, student input in the hiring of new administrators, a special diversity council meant to improve the lots of students of color at the university, as well as education on diversity and tolerance to restrict the kind of hateful and derogatory speech that incited the incident in the first place. 10 It was only after the school failed to respond to the growing concerns of students that several advocates within the movement called for more restrictive policy that explicitly states the types of speech that are inappropriate for a college environment. These students argued that critics of their movement were racially motivated and their speech made the learning environment on campus toxic and inhospitable to minorities and persons of color. 11 This raises a question–would the outcome of this college revolution have been much different if the school had listened to the students’ demands and changed their policies sooner? To examine the potential effectiveness of different policies and determine whether or not a Hate Speech Code can be justified, one must first analyze the types of speech and the application of such policies. The philosophical underpinnings of the freedom of speech largely stem from the Enlightenment ideal of the freedom of conscience. The idea of protecting the thoughts and beliefs of individuals stems back to the first religious toleration laws under Constantine I in the early 4 th century. 12 These laws established tolerance for Christian religions in Europe and laid the foundation, intentional or not, for more progressive principles over the next millennia. Once the Enlightenment began in Europe in the early 1600’s, some of the movement’s key players began articulating their own conceptions of a more clearly defined freedom of conscience. Sir William Blackstone in his Commentaries on the Laws of England described the freedom of conscience in terms of prior restraint, arguing that governments could not restrict someone from the act of voicing what they believed. 13 Intellectuals like John Locke, Voltaire, and John Stuart Mill took his theory a step further and urged protections for the content speech, press, and other external manifestations of a

10. Concerned Student 1-9-5-0, supra 11. Dowling, supra 12. Halsall, P. (1996, January). Galerius and Constantine: Edicts of Toleration 311/313. Retrieved from Fordham University: https://legacy.fordham.edu/halsall/source/edict -milan.asp 13. Blackstone, S. W. (1765). Blackstone’s Commentaries on the Laws of England. (Yale Law School) Retrieved from T he Avalon Project : http://avalon.law.yale.edu/subject_menus/blackstone.asp

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person’s conscience. These philosophical foundations heavily influenced common law precedent in England and in turn served as inspiration for the Founding Fathers when drafting the Constitution and Bill of Rights. Despite the long philosophical history of free expression, the legal foundations of free speech only extend back to 1689, when the installation of William and Mary as the rulers of England changed rules and procedures within Parliament. 14 Free speech was granted to members of Parliament while in the chambers with the intention of enhancing the discourse within the chambers and protecting members with unpopular ideas from persecution and retribution. Throughout the 18th century, however, little advancement was made regarding universal free speech for average citizens. It was not until France adopted the Declaration of the Rights of Man and America adopted the Bill of Rights, that there was any concrete legal backing for the concept philosophers had been discussing for years. 15 The first legal establishment of free speech in America was the Bill of Rights. In it, the First Amendment states, “Congress shall make no law. . . abridging the freedom of speech, or of the press. 16 “ This clause creates w hat is known as a negative right, also called freedom “from” an action, as opposed to a positive right, which imposes an obligation to act. 17 In the case of speech, each member of society is entitled to freedom from restrictions on his or her speech by the government. Freedom of speech is largely considered universal in academic and legal circles, but this has not always been the case. Lincoln, for instance, restricted speech during the Civil War by establishing Martial Law in the Border States. Like most temporary restrictions of liberty, Lincoln took such action to quiet dissent and advance the war effort – specifically, to allow the North to retain crucial territory to fight off the South. 18 Outside of temporary military action, the Supreme Court has established three main limitations on Free Speech through legal precedent: intent, fighting words, and time, place, and manner restrictions. Some of these limitations were first introduced in the, now obsolete, “clear and present danger test” in Schenck v. United States, (1919) established the first true limit on the content of speech

14. Smith, D., & T orres, L. (2006, February 6). Timeline: a history of Free Speech. Retrieved from T he Guardian: http://www.theguardian.com/media/2006/feb/05/religion.news 15. Id. 16. U.S. Const. amend. I 17. Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. New Haven: Yale University Press, 1998. 36-39, Print. 18. Id. at 233

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in certain situations. 19 In the case, two individuals were accused of spreading pamphlets that encouraged desertion around a military base. 20 In his majority opinion, Justice Oliver Wendell Holmes described a metaphorical situation in which a person stands up in a crowded movie theater and yells “fire! 21 “ This represents a clear and present danger to the people in the movie theater and in the surrounding area and the shouting individual can have his speech restricted. This test provided the standard for speech restrictions throughout most of the early 20th century. The landmark case Brandenburg v. Ohio, (1969) introduced a replacement test for Schenk when a per curium decision overturned a lower court’s ruling that a KKK member communicating his ideas in public presented a clear and present danger to society. 22 The court held that in order for speech to be restricted, the speech must be, “directed to inciting or producing imminent lawless action and [likely to] incite or produce such action. 23 “ This effectively doubled the standard for speech restrictions by introducing a component of intent to the legal interpretation. Therefore, speech that is dangerous but not offered with violent intent was protected by under the First Amendment. This decision remains legal precedent. 24 The second kind of speech that can be restricted by the government is fighting words. In the majority opinion of Chaplinsky v. New Hampshire, (1942), Justice Frank Murphy articulated the fighting words doctrine, essentially separating fighting words from other forms of speech by claiming that they contained no “social value. 25 “ The background of this case involved a situation where Chaplinsky, a Jehovah’s Witness, was petitioning people on the street and handing out fliers. 26 After being confronted by a city martial, Chaplinsky was arrested for violating New Hampshire’s Offensive Content Law and accused of cursing and insulting the official. 27 Chaplinsky’s punishment and the corresponding law was upheld despite a lack of clarity over which party instigated the confrontation.

19. 20. 21. 22. 23. 24. 25. 26. 27.

Schenck v. United States, 249 U.S. 47 (1919) Schenck, 249 U.S. 47 Schenck, 249 U.S. 47 Brandenburg v. Ohio, 395 US 444 (1969) Brandenburg, 395 US 444 Brandenburg, 395 US 444 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) Chaplinsky, 315 U.S. 568 Chaplinsky, 315 U.S. 568

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In 1992, the “Fighting Words Doctrine” was revisited and clarified by Justice Antonin Scalia in his decision in R.A.V. v. City of St. Paul, (1992). 28 In this decision, Justice Scalia struck down a law that restricted hate speech targeted at specific ethnicities or groups because it attempted to regulate that content, rather than the manner, of speech. The problem with a law aimed at suppressing specific kinds of speech is that it does not treat all speech content equally. The point of the Fighting Words Doctrine is, “not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey. 29 “ This ruling is directly applicable to Hate Speech Codes as it requires laws to not focus on content. This poses a problem for activists who are protesting because of content that they find morally abhorrent. Hate Speech Laws can absolutely limit the use of fighting words, but they must do so without creating a hierarchy among different contents of speech. The final type of speech limitation is known as a “Time, Place, and Manner” restriction. This precedent, refined by Justice Kennedy in Ward v. Rock against Racism, (1989), describes speech regulations that are content neutral and narrowly tailored to a specific situation. 30 In order to appropriately fulfill its obligations for this type of restriction, the government must do demonstrate a compelling interest in restricting speech, while also leaving open alternative channels for communication. The classic example, offered in Cox v . Louisiana, (1965), is that everyone has the right to speak, but one cannot “insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech. 31 “ Consequently, similar to the other two forms of legal speech restrictions, Time, Place, and Manner restrictions would be ineffectual at limiting hate speech from a community without targeting specific forms of content. Under current precedent, most Federal and State Hate Speech Codes have failed to demonstrate a compelling state interest and are unconstitutional. Some hate speech, such as aggressive personal attacks paired with violent intent, may end up being restricted under one of the types of limitations; however, much hate speech, particularly insensitivity and discriminatory language, cannot be eliminated. Thus, in order to restrict all forms of hate speech, new legal precedent must be articulated. 28. 29. 30. 31.

R.A.V. v. St. Paul, 505 U.S. 377 (1992) R.A.V., 505 U.S. 377 Ward v. Rock Against Racism, 491 U.S. 781 (1989) Cox. v. Louisiana, 379 U.S. 536 (1965)

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Moreover, to justify a hate speech law, the proponents must prove that hate speech really harms them or their community. Without that proof, the government cannot demonstrate a Compelling State Interest and justify the restriction. Most opponents of Hate Speech Codes seek to discredit arguments about harms and claim that the definition of hate speech is mostly a subjective determination of what is offensive. Many of these critics believe that words have a much smaller impact than actions and those who feel strongly affected by certain insults or phrases should try to, “be less sensitive.” However, from a psychological standpoint, Hate Speech can have a real impact on the psyc he of those targeted, and on society as a whole. Professor Jeremy Waldron of New York University Law School articulates an argument about why hate speech hurts victims in his book, The Harm in Hate Speech. 32 He claims that Western Societies are based on the ideas of inclusiveness and diversity. Consequently, tolerance of different ideologies, cultures, and religions is imperative for creating, “a sense of security” for all citizens. This security forms a public good through which everyone in society benefits. 33 “Hate Speech, Waldron claims, “undermines this public good. . . it does this not only by intimating discrimination and violence, but by reawakening living nightmares of what [past] society was like. 34 “ In this environment, those affected are faced with oppression and typically end up modifying their behavior as a result. To a certain extent, hate speech creates second-class citizens within a country, silencing and dampening the voices of its victims and creating an unsafe space for their political discussions. Traditionally, as the Supreme Court looks to articulate new precedent, only legal arguments on constitutionality are heard, rendering Professor Waldron’s argument meritless. However, Earl Warren’s court allowed for psychological evidence to be introduced in the landmark segregation case Brown v. Board of Education, (1954). 35 This evidence involved a study where children were presented with two dolls: one that looked white and one that looked black. The children, both black and white, were asked various questions: Which doll is pretty? Which doll is ugly? Which doll would they rather be? and so on. 36 The disturbing results of the study showed that both 32. Waldron, Jeremy. The Harm in Hate Speech. Cambridge, Mass.: Harvard University Press, 2012. 33. Id. 34. Id. 35. Brown v. Board of Education of T opeka, 347 U.S. 483 (1954) 36. Gordon Beggs, Novel Expert Evidence in Federal Civil Rights Litigation, 45 Am. U. L.

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races almost exclusively assigned positive attributes to the white doll, leaving the black doll with all the negative traits. 37 This evidence contributed to the argument that segregationist policies caused deeply entrenched inequality in southern society and negatively impacted the development of children. Professor Waldron’s argument articulates a similar cause and effect relationship, as hate speech reaffirms racial divides. Current precedent forbids speech restrictions based on content, but given how severely hate speech impacts its targets and reinforces stereotypes and systems of repression, why have government in the United States not put more effort into creating new precedent? Even though the harm of hate speech may be clear, there are many problems with their implementation. The problems with Hate Speech Codes are threefold. First, hate speech is incredibly hard to define because it relies on subjective definitions of what is offensive or hurtful. For instance, does hate speech derive from the tone and attitude of the aggressor, or is it defined as hateful content? Does it matter who the target of the speech is? Do they need to be from an oppressed group, and if so, is there a distinction between targeting a group or targeting an individual? An activist may be able to answer these questions according to their own personal beliefs, but it would be incredibly hard to find a cohesive definition that applies nationally. Such a definition is imperative because any Hate Speech Code would hinge on its constitutional justification. Second, while First Amendment is clear on interactions between a citizen and a state actor, it is not fully applicable for interactions between private citizens. Private interactions have always faced a much lower legal scrutiny than public ones. For instance, the government cannot force citizens to take a drug test unless they are arrested, whereas a private company can drug test their employees before they are hired. 38 In this case, the private company is placing a much greater burden on the employees right to privacy than the government would be able to. A similar situation with speech occurs when one citizen uses their speech to silence someone else. Colloquially, this is known as a “Heckler’s Veto” and is permissible under current law. 39 The legal definition of

Rev. (1995). 37. Id. 38. Workplace Fairness. (2016). Your Rights: Drug Testing. Retrieved from Workplace Fairness: https://www.workplacefairness.org/drug-testing-workplace 39. “ Heckler’s Veto Definition.” Heckler’s Veto Definition. Accessed January 16, 2016. http://www.duhaime.org/LegalDictionary/H/HecklersVeto.aspx.

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a “Heckler’s Veto” is actually very different, involving a situation in which the government restricts the speech of one party in order to prevent the reac tion of another party. 40 This legal definition has been deemed unconstitutional, most famously in Tinker v. Des Moines, (1969), when the court ruled that black armbands to protest to the Vietnam War could not be restricted under the pretense of a fear of disturbance. 41 This applies directly to hate speech bec aus e it limits the government’s ability to punish the aggressors. If the government tried to protect the First Amendment rights of one group by restricting potential aggressors through a Hate Speech Code, it is that law that is in violation of the Constitution, not the actions of the perpetrators. Third and perhaps most importantly, restricting certain kinds of content effectively creates categories of speech. By creating a category as broad as the current definition of hate speech—speech that attacks, threatens, or insults a person or a group based on their race, ethnicity, gender, or sexual orientation — it is likely that more speech than intended will be lumped into the category. 42 Thus, the implementation of a Hate Speech Code is a tradeoff between limiting too much speech and not limiting enough hateful speech. America has consistently erred on the side of caution and prioritized protecting the innocent rather than convicting the guilty. These three conditions make articulating clear laws about hate speech incredibly impractical. At some fundamental level, the government should not be able to restrict the most basic rights of citizens, even if for an excellent cause. Oftentimes even the most well intentioned, localized restrictions can easily produce a negative result. Outside of rhetoric, the concept of restricting the liberty of individuals more than absolutely necessary abhors constitutional values. Even though Hate Speech Codes may protect certain individuals, they are inconsistent with the values that America was founded on. So if hate speech cannot be legally criminalized, how can it be dealt with? One proposal was brought up by the National Telecommunications and Information Administration (NTIA) in a report from 1991 on the role of electronic and broadcast media in encouraging violent and hate-related crimes. 43 The NTIA report found that individuals frequently used

40. Id. 41. T inker v. Des Moines Sch. Dist., 393 U.S. 503 (1969) 42. Waldron, supra 43. Brown, Ronald. “ T he Role of T elecommunications in Hate Crimes Report to Congress. ” Department of Commerce. December 1, 1993. Accessed January 9, 2016. https://www.ntia.doc.gov/legacy/reports/1993/T elecomHateCrimes1993.pdf.

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telecommunications to spread hate and bigotry, and recommended promoting tolerance to citizens, rather than placing restrictions on their actions, to diminish the impact of such speech. 44 Just as hate speech can overpower the voices of minorities, government programs and education policies meant to improve diversity in all areas of public life can overpower hate speech. Since one of the government’s main roles is to promote a safe and secure environment for all of its citizens, education policies, such as the ones proposed by the NTIA, are the best way for the government to achieve those goals without restricting freedoms. Education and values programs aimed at teaching tolerance and fostering respect among different groups must begin with diversity. Diversity is cruc ial for promoting tolerance because it increases exposure to different thought processes, backgrounds, and cultures. Acknowledging that people come from different backgrounds yields more awareness and acceptance while limiting the spread of bigotry and ignorance. Furthermore, a person is most impressionable to values training when he or she is young. If left unchecked, stereotypes formed at a young age can influence a person’s perceptions for years, making this training imperative for development. While the primary moral leaders in a young child’s life are family members and guardians, peers and formal education play a large role in a child’s development and socialization as well. The government has a vested interest in developing moral and just citizens as they can contribute to the common public good of safety and security for all members of a society. 45 Thus, the government should require this kind of education in schools in an attempt to make society a more tolerant, respectful, and hate-free society. Many state and local governments have already implemented character education programs in an attempt to raise socially conscious and moral citizens. For example, North Carolina was one of many states from across the country to vouch for these programs, stating in The Student Citizen Act of 2001, that, “the development of character in our children is the cornerstone of education. 46 “ Programs like character education typically involve several isolated moral attributes, such as compassion, respect, responsibility, and integrity, that are

44. Id. 45. Branson, Margaret. The Role of Civic Education: A Forthcoming Education Policy Ta sk Force Position Paper from the Communitarian Network. Center for Civic Education, 1 Sep. 1998. Web. 14 Jan. 2016. 46. “ CHARACT ER EDUCAT ION.” Character Education. 2011. Accessed January 9, 2016. http://www.dpi.state.nc.us/charactereducation/.

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repeatedly emphasized throughout a student’s formative years. While character education can play a large role in the development of values, it alone does not go far enough at engaging students with their community and promoting the ideals that limit bigotry and insensitivity in the future. It must be combined with civic education, specifically applied through service learning, in order to have a meaningful impact on hate speech. According to a 1998 Education Policy position paper by Margaret Branson of the Center for Civic Education, civic education relies on three essential components: civic knowledge, civic skills, and civic dispositions. 47 Civic knowledge includes understanding the role of citizen and the values on which the political system is based, civic skills involve both the intellectual and participatory skills necessary to work within the system, and civic dispositions are the “essential traits of private and public character. 48 “ These traits, which good citizens embody, include becoming independent and self-sufficient while treating others with respect and participating in civic discussions in a thoughtful manner. 49 Hate speech clearly violates these last two principles, as it contributes nothing to the civic discourse and is directly disrespectful at best– discriminatory at worst. The philosophy behind civic education contends that students should be taught respect through listening to others and considering their opinions and backgrounds thoroughly. 50 This process, if instilled in children from a young age, would reinforce the principles of majority rule and minority rights, which would go a long way to limiting hate speech. 51 Good civic education combines three distinct educational topics in order to teach students these values and coach them to become more constructive members of their society. First, at a young age, character education forces students to become aware of and engage with the values of a tolerant and diverse society. Second, traditional civics, or learning about the systems of government, helps develop civic knowledge. Finally, service learning, or the application of civic responsibility, makes this education more than just abstract knowledge and encourages students to participate in their local communities. This blend of education systems has been around for a long time, ever since the nationalist programs in the late 1950’s that instructed students about how to respectfully take part in society. Over time, however, civic education has 47. 48. 49. 50. 51.

Branson, supra Branson, supra Branson, supra Branson, supra Branson, supra

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become more scarce as it is often the first program to go during budget cuts. As these programs have decreased, America has undergone a demographic change, with minority groups being increasingly represented in society. According to the educational nonprofit the National Crime Prevention Council, bias-related crime has increased in recent years with the increase in minority groups. 52 With the return of civics to schools, future citizens would be more aware of the needs of other groups around them, would be less likely to be ignorant or biased in their speech or actions, and this increase of crime could potentially be reversed. The return of true civic education is the most effective way to combat hate speech, much more so than a restrictive Hate Speech Code. To again revisit the University of Missouri, the demands of “Concerned Student 1-9-5-0” were motivated by a frustration with the culture of intoleranc e present on campus. Diversity training for administrators, professors, and leaders on campus would be particularly effective at preventing a similar situation in the future. Campus-wide diversity programs, akin to the ones that already exist for alcohol and sexual assault training, would help develop a culture of tolerance and acceptance. Administrators and student leaders play a large role in developing the culture, and by removing ignorance, ineptitude, and bigotry from the top of these organizations, the university is more likely to be able to properly address racial conflict and intolerance. No one program or policy would have been able to single-handedly solve the problems that were inherent in the system at the University of Missouri, but programs like c ivic education that focus on diversity would help promote inclusiveness and prevent similar problems in the future. In addition, combining that diversity with service learning would promote tolerance and respect among different groups of people. Service learning is essentially an extension of the classroom into the community. The typical example is a biology class that learns about an ecosystem and then goes out to clean up a nearby creek, thereby increasing students’ knowledge while doing practical good within the community. When applied to civic education, service learning encourages respect and positive interactions between students with the purpose of training students to participate fully in the process of selfgovernment. Without this integral part, civic education becomes a regular class where students learn facts and memorize material. Service learning takes civic education out of the abstract and into the real world, giving students the 52. “ Strategy: Diversity and T olerance Education in Schools.” 2016. Accessed January 9, 2016. http://www.ncpc.org/topics/bullying/strategies/strategy -diversity-and-tolerance-educationin-schools.

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opportunity to apply their knowledge and values to their community and improve the world around them. Hate speech is a real world problem and something that requires a real world solution, not just a temporary legal or academic fix. Service learning attacks the heart of the problem behind the hate and attempts to fix it by improving education and awareness; any other solution merely masks the problem and is not a permanent fix. Racism, bigotry, insensitivity, and intolerance are some of the biggest problems this country faces today. Many times, it appears that society c ould be greatly improved through the implementation of laws to restrict hateful and bigoted speech. Hate speech hurts people, reinforcing its targeted groups as second-class citizens while turning into a tool of repression and subjugation. However, current standards of legal precedent do not support judicial changes to include the criminalization of hate speech. Restrictions on speech must be narrowly tailored and cannot subject more citizens than necessary to punishment. Hate speech laws, in order to adequately encompass the appropriate amount of speech, must be written far too broadly and will end up punishing other forms of speech. The only solution where positive progress is made while respecting the rights of citizens and the role of government involves educating students from a young age. The return of true civic education is an incredibly important step in beginning to diminish hate speech because it teaches students to look beyond their individual needs and think about their actions as affecting the society as a whole. No other policy would be as effective at limiting the effect of hate speech, and in an era of increased diversity and globalization, no other program could prepare students to be more tolerant or accepting than civics.

EQUAL DIGNITY IN THE EYES OF THE LAW: THE IMPACT OF OBERGEFELL BEYOND SAME-SEX MARRIAGE Alexander Nabavi-Noori*

ABSTRACT

The Supreme Court’s 2015 decision in Obergefell v. Hodges was monumental, ending a decades-long debate over the rights of same-sex couples to marry. However, Obergefell is a landmark case not only for its impacts on marriage equality and members of the LGBT community but also as the culmination of a massive shift in the Court’s equal protection and substantive due process jurisprudence. I argue that Obergefell is the dramatic climax of more than two decades of decisions written by Justice Kennedy—many of them involving gay rights—that gradually reversed the Court’s narrower, more technocratic substantive due process jurisprudence, and expanded it to a more inclusive definition that includes notions of dignity and liberty in the eyes of the law. I begin by examining the Court’s previous, more rigid substantive due process and equal protection jurisprudence. I then turn to the significant cases showcasing Justice Kennedy’s changes to these doctrines including Casey v. Planned Parenthood, Lawrence v. Texas, and U.S. v. Windsor, culminating in the decision in Obergefell. Finally, I argue that the significance of Justice

* Alexander Nabavi-Noori is a junior studying Political Science and Economics at UCLA

with an intention to attend law school. He hopes to use his legal education to work in public policy. Thank you to Knox Brown for his valuable feedback and to my mother for her endless support in all of my endeavors. Editor: Edilia Sargsyan is a third year English major at UCLA. She is an active member of Chi Alpha Phi and plans on attending law school after graduation to pursue her interest in corporate law.

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Kennedy’s gay rights jurisprudence has broader implications for civil rights litigation, possibly signaling the resurgence of the anti-humiliation principle and a return to the jurisprudence of Brown v. Board of Education. I. INTRODUCTION In June 2015, Justice Kennedy read the decision in Obergefell v. Hodges1—one of the most highly anticipated cases to hit the Supreme Court in the last decade—from the bench, officially lifting bans on same-sex marriage in states all across the nation. The final words of the majority’s opinion at once rang through the nation, declaring that once and for all same sex couples would be granted the equality that they had long sought: “Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”2 Obergefell’s most immediate impact was, of course, to end decades of bans on same-sex marriages and to finally welcome same-sex couples to the millennia-old institution of marriage. However, the long-term significance of this case reaches far beyond its impact on same-sex couples and even on the right to marry. The majority could have chosen to decide narrowly, drawing only on the fundamental right to marriage asserted in Loving v. Virginia3 or elevating the level of scrutiny afforded to individuals based on sexual orientation had they merely wanted to legalize same-sex marriage. However, the majority’s opinion goes much farther and is in many ways the culmination of a decades-long shift in substantive due process and equal protection jurisprudence that will likely fundamentally change civil rights litigation for decades to come. This article will examine the potential impacts of Obergefell in substantive due process and equal protection jurisprudence. I argue that the underlying themes of dignity and liberty championed by Justice Kennedy could change civil rights litigation in more fundamental ways with the possible resurgence of the anti-humiliation principle. I will begin by examining the history of the Court’s substantive due process and equal protection jurisprudence. I will then turn to the significant cases showcasing Justice Kennedy’s changes to these doctrines culminating in the decision in Obergefell. 1. 2. 3.

135 S. Ct. 2584 (2014). Obergefell, 135 S. Ct. at 2608. 388 U.S. 1 (1967).

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Finally, I will turn to the significance of these changes and how they may affect civil rights litigation in the future.

II. HISTORY OF SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION JURISPRUDENCE A. Unenumerated Rights and Due Process: The Glucksberg and Poe Approaches The Supreme Court has long debated over which unenumerated rights are protected by the due process clauses of the Fifth and Fourteenth Amendments. Certainly there are rights that the Constitution protects that remain unenumerated—the Ninth Amendment provides compelling evidence to that end.4 However, the question remains how far these rights extend. The Court has historically recognized many unenumerated rights implicit in the Fifth Amendment’s guarantee of liberty including the right to send one’s children to private school,5 the right to procreate,6 the right to use contraception,7 the right to abortion,8 the right to sexual intimacy, 9 and the right to marry. 10 However, the Court has also been reluctant to tread too quickly in guaranteeing further unenumerated rights, noting that it “has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.”11 Obergefell resulted in a monumental change in this arena, however we must first look to the approaches employed by the Court prior to this decision. Historically there have been two competing approaches to solving this difficult problem, one open-ended and the other much more formulaic. The first comes to us from the second Justice Harlan’s dissent in Poe v. Ullman.12 In this

4. U.S. CONST. amend. IX (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”). 5. Pierce v. Society of Sisters, 268 U.S. 510 (1925). 6. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942). 7. Eisenstadt v. Baird, 405 U.S. 438, 443 (1972); Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965). 8. Roe v. Wade, 410 U.S. 113, 153 (1973). 9. Lawrence v. Texas, 539 U.S. 558, 578 (2003). 10. Loving v. Virginia, 388 U.S. at 12. 11. Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (citing Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 225–26 (1985)). 12. 367 U.S. 497 (1961).

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case, the Court refused to reach the merits of a case challenging a Connecticut statute banning the use of contraceptives. In his dissent, Justice Harlan argued that the Court should have reached the merits of the case and also set out his own standards for determining when the Court should recognize an unenumerated right as being protected under the due process clause: Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.13 In his dissent then, Justice Marshall argues that substantive due process can never be a formulaic endeavor. Instead, his methodology would balance “individual liberties against governmental interests in a reasoned matter” leaving it up to the judiciary to make reasoned judgment in the balance between the traditional foundations of the Nation and new understandings of what constitutes liberty.14 Using this methodology, Justice Harlan would have found the Connecticut statute’s ban on contraceptives unconstitutional. On the other end of the spectrum is the much more formulaic methodology set out in the majority’s opinion in Washington v. Glucksberg.15 Glucksberg set out three fundamental conditions that the majority felt must be met in order to qualify an unenumerated right for protections under substantive 13. Id. at 542. 14. Kenji Yoshino, A New Birth of Freedom?: Obergefell v. Hodges, 129 HARV. L. REV. 147, 150 (2015). 15. 521 U.S. 702 (1997).

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due process. First, the right must be “‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty.’” 16 Second, a “‘careful description’ of the asserted fundamental liberty interest” was required.”17 Finally, the Court set out an asserted preference for recognizing socalled “negative-right[s]”—in other words, rights in the form of “freedom from”—over positive rights, or “freedom to” rights.18 Let’s now look at these requirements in greater detail. The first, and arguably most influential, requirement in Glucksberg embodies years of overly cautious substantive due process jurisprudence. The trend began in the 1986 case Bowers v. Hardwick,19 which first set out the requirement that a right be “deeply rooted rooted in this Nation’s history and tradition”20 and was largely decided due to the majority’s view that the nation’s tradition nor the concept of ordered liberty did not support a right to same-sex sodomy, stating: “It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots.” 21 This case would then provide the basis for the tradition test that followed in Glucksberg and set the rigid frame that the substantive due process debate would take place in: whether or not that right could be explicitly found in the nation’s history. The second Glucksberg requirement was the “careful description” requirement. This is very closely related to the Court’s tradition requirement because in order to properly assess whether a certain right has a basis in the nation’s traditions, one must specify how broadly or narrowly to construe that right in the search for its historical roots. The “careful description requirement” requires that the right must be construed as narrowly as possible. The case Michael H. v. Gerald D.,22 exemplified this requirement and the major issues associated with it. In Michael H., Victoria D. was born to her mother, Carole D. and her partner Gerald D. However, Carole D. had an adulterous affair with a man, Michael H., who then ordered a paternity test which found him to be Victoria D.’s biological father. In the case, Michael H. argued that substantive 16. Id. at 721 (citations omitted) (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion). 17. Id. (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)). 18. Yoshino, supra note 14, at 150. 19. 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003). 20. Id. at 192 (1986) (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)). 21. Id. 22. 49 U.S. 110 (1989).

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due process rights to liberty guaranteed him the right to maintain a relationship with his biological child, despite the fact that Carole D. was raising the child with Gerald D. As NYU Law Professor Kenji Yoshino explains, the case brought about significant issues over how to precisely capture the nature of a right asserted under substantive due process. 23 Certainly it would be difficult to capture just what right specifically in this case was being exercised: was it of the “rights of the natural father of a child adulterously conceived?”, “the rights of natural fathers in general?”, or possibly the rights of parents in general?24 Justice Scalia, the writer of the majority’s opinion ruling against Michael H., derived a method that would view the ladder of rights here presented and would ask the deciding judge to “climb the ladder rung by rung and, while standing on a particular rung, to cast about to see if a tradition existed that either supported or undermined that right.”25 Essentially, this methodology would have the judge first begin with as narrow a construction of the right being contested and, if there were no specific traditions relating to that right in the nation’s history, then to add a layer of abstraction—for instance, moving from “the rights of the natural father of a child adulterous lay conceived” to “the rights of natural fathers in general”—and then see if they could find a tradition then.26 In the case of Michael H., the analysis ended on the very first, most specific, rung, based on the established tradition of not recognizing the rights of parents who conceived children out of wedlock. Because this tradition existed, it was unnecessary to continue to the next rung of abstraction. In his opinion, Justice Scalia argued that such a method of evaluating substantive due process claims was value neutral by simply following the formulaic ladder approach. However, scholars criticized the technique as not value-neutral at all, leaving it up to the judge’s own value system to determine which parts of a contested right to abstract away when climbing the next “rung.”27 Arguments over specificity will later become important as we see similar arguments that led up to the decision in Obergefell v. Hodges, and whether same-sex marriage could properly be seen as an extension of the basic right to marriage or whether it constituted an entirely new right altogether. The final requirement, the Court’s stated penchant for favoring “freedom 23. Yoshino, supra note 14, at 155. 24. Michael H., 49 U.S. 110 at 127 n.6 (plurality opinion). 25. Yoshino, supra note 14, at 155. 26. Michael H., 49 U.S. 110 at 127 n.6 (plurality opinion). 27. Laurence H. Tribe & Michael C. Dora, Levels of Generality in the Definition of Rights, 57 U. CHI. L. REV. 1057 (1990).

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from” rights over “freedom to” rights as being protected by due process, followed from a history of cases in which the Court refused to grant individuals specific rights to carry out certain behaviors, favoring instead to protect individuals from state intrusion whenever possible. For instance, in Glucksberg, the majority wrote: “In Cruzan itself, we recognized that most States outlawed assisted suicide—and even more do today—and we certainly gave no intimation that the right to refuse unwanted medical treatment could be somehow transmuted into a right to assistance in committing suicide.”28 In other words, just because the Court found that the Constitution protected an individual’s freedom from state intrusion in deciding their medical treatment, did not give them the explicit freedom to then choose to end their lives through medically-assisted suicide. In other cases, such as San Antonio Independent School District v. Rodriguez,29 the Court refused to grant a fundamental right to education just as they would to other “significant personal interests [such as] decent food and shelter,” arguing instead that there is a significant gap between ruling that the State cannot bar an individual from receiving an education or from attaining food and shelter and ruling that a person is entitled to a right to these instruments of life.30 Until the Court’s decision in Obergefell, these three restrictions stood as the preferred method for determining whether an unenumerated right was Constitutionally protected and thus dramatically reduced the scope of what could be protected by substantive due process. B. Historical Gap Between Substantive Due Process and Equal Protection The Supreme Court has also historically maintained a distinction between equal protection and substantive due process analyses that the majority in Obergefell substantially weakens, bridging the gap between the two protections with a unified doctrine of “equal dignity.” 31 Historically, equal protection and substantive due process claims were treated as almost mutually exclusive, with due process protection historically having been used to protect so-called “traditional” rights, similarly to the 28. Washington v. Glucksberg, 521 U.S. 702, 725-26 (1997). 29. San Antonio School District v. Rodriguez, 411 U.S. 1 (1973). 30. Id. at 37. 31. Lawrence Tribe coined the term “equal dignity” to describe the new, tightly interwoven jurisprudence of both Equal Protection and Due Process and is a useful term that I will continue to use to refer to the innovations that the Court’s decision in Obergefell makes. Laurence H. Tribe, Equal Dignity: Speaking Its Name, 129 Harv. L. Rev. 16, 27 (2015).

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Court’s “tradition” requirement set out in Glucksberg when evaluating whether an unenumerated right existed. Until recently, this narrow view of the rights that the due process clause protected prevented the Court from entertaining any right to same-sex marriage which was a decidedly “nontraditional” right. Cass Sunstein, Professor at the University of Chicago, affirmed and elaborated upon this distinction in a 1988 article following the Court’s refusal to grant the due process claim forwarded in Bowers v. Hardwick. In an attempt to argue that the failure of the substantive due process claim in striking down anti-sodomy laws in Hardwick need not preclude the success of an equal protection claim based on sexual orientation in a similar case at the time, Padula v. Webster,32 Sunstein explained the differing purposes and histories of the two clauses, arguing that “the two clauses operate on different tracks.”33 Sunstein argues that, historically, the due process clause “has been interpreted largely (though not exclusively) to protect traditional practices against short-run departures” and is thus “closely associated with the view that the role of the Supreme Court is to limit dramatic and insufficiently reasoned change, [and] to protect tradition against passionate majorities.”34 This view is particularly clear in cases involving privacy such as in Griswold v. Connecticut, which made use of significant references to tradition to assert a right of privacy, or in Moore v. East Cleveland,35 where Justice Powell wrote: “Appropriate limits on substantive due process come. . .from careful ‘respect for the teachings of history [and] solid recognition of the basic values that underlies our society.’” 36 Sunstein then argues that equal protection clause “by contrast, has been understood as an attempt to protect disadvantaged groups from discriminatory

32. In this case, the U.S. Court of Appeals for the D.C. Circuit ruled against Margaret Padula who argued that the Federal Bureau of Investigation refused to hire her because she was a homosexual. Padula claimed that this was a violation of her equal protection rights granted by the Constitution under the Fourteenth Amendment. The appeals court rejected her argument by relying on the Supreme Court’s decision in Bowers v. Hardwick, arguing that it precluded an equal protection guarantee for homosexuals. 822 F.2d 97, 103 (D.C. Cir. 1987) (“If the Court was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open to a lower court to conclude that state sponsored discrimination against the class is invidious.”). 33. Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U. CHI. L. REV. 1161, 1163 (1988). 34. Id. at 1171. 35. 431 U.S. 494 (1977). 36. Id. at 503 (1977) (quoting Griswold v. Connecticut, 381 U.S. 479 at 501 (Harlan concurring)).

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practices, however deeply engrained and longstanding.”37 The equal protection clause came about for the very purpose of overturning hundreds of years of traditional, institutional racism and subjugation. Its very founding went against the principle of deference to tradition and was instead “self-consciously designed to eliminate practices that existed at the time of ratification and that were expected to endure.”38 Therefore, at the time of Bowers, scholars like Sunstein contended that there could still be legitimate equal protection claims that could be brought in future cases, particularly in states where the antisodomy laws explicitly condemned homosexual sodomy. However, the difficulty with such a case would be that, because the Court in Bowers had refused to affirm any sort of right to intimacy or sodomy, states could easily resolve an unfavorable ruling by simply expanding their laws to include different-sex couples as well without worrying about infringing on a protected right. This problematic nature of equal protection cases would, as we will see, be directly addressed by the new doctrine of “equal dignity” that arises in Justice Kennedy’s same-sex marriage opinions. These rigid doctrinal views of equal protection and substantive due process as mutually exclusive means of analysis would remain, until the string of decisions that we will examine in the next section, beginning with Lawrence and ending in Obergefell, which would begin to erode this barrier.

II. KENNEDY’S NEW DIGNITY JURISPRUDENCE In his time on the Supreme Court, Justice Anthony Kennedy has reshaped the Court’s substantive due process jurisprudence. His jurisprudence has brought a didactic voice to the Court that emphasizes that the Constitution “is written and designed to shed light on society’s evolving experience, framing windows through which to view and assess that experience, and to thereby educate us in how we might proceed to form an ever more perfect union.”39 In this section I will examine a line of cases, beginning in 1992 with Planned Parenthood of Southeastern Pennsylvania v. Casey40 and leading up to our headline case of Obergefell v. Hodges, each of which shows significant influence from Justice Kennedy and which presents a significant step toward the changes in substantive due process and equal protection that culminated in 37. 38. 39. 40.

Sunstein, supra note 33, at 1163. Id. Tribe, supra note 31, at 27 (2015). 505 U.S. 833 (1992).

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the idea of “equal dignity” found in Obergefell. A. Setting the Stage: Casey, Romer, and Lawrence 1. Casey The first significant case that helped lay the groundwork for the ideas of dignity and liberty that would characterize Justice Kennedy’s future opinions in cases like Lawrence, Windsor, and Obergefell actually did not concern samesex couples at all. Instead, it was a 1992 review of the Court’s previous decision in Roe v. Wade,41 co-authored by Justice Kennedy. Being asked yet again to reexamine their decision in Roe, the Court produced a vigorous defense of substantive due process jurisprudence, defining and expanding its scope, examining the true nature of liberty that operates within the due process clause, and heavily favoring a non-formulaic approach to substantive due process jurisprudence by invoking the Poe dissent. When the Court decided Michael H., Justice Scalia took the time to write a footnote that set out a formulaic, ladder-based approach to examining substantive due process claims.42 Notably, while Justice Kennedy agreed with the Court in judgment, he did not sign this footnote, leaving open the possibility that he favored a less formulaic method similar to that of the Poe dissent.43 In Casey, it becomes clear that this was very likely the case. Casey begins with a defense of substantive due process, declaring that “the [Due Process] Clause has been understood to contain a substantive component. . .one ‘barring certain government actions regardless of the fairness of the procedures used to implement them.’”44 Significantly, the majority cites the second Justice Harlan’s Poe dissent frequently, making it the centerpiece of their view of the liberty guarantee. The majority writes: The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office. As Justice 41. 42. 43. 44.

410 U.S. 113 (1973). See supra p. 4. See Michael H. v. Gerald D., 491 U.S. at 113 (plurality opinion). Casey, 505 U.S. at 846 (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).

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Harlan observed: “Due process has not been reduced to any formula; its content cannot be determined by reference to any code.”45 By citing and emphasizing the logic of Justice Harlan’s dissenting opinion, the court gives precedential weight to the Poe dissent’s proposed method of substantive due process jurisprudence and takes a large step forward on the path towards the due process logic that will play a central role in the Lawrence, Windsor, and Obergefell cases. The majority also sets out an ambitious definition of the nature of the liberties afforded by the due process clause. The Court writes: These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.46 These ideals of self-determination, dignity under the law, and the idea that “all individuals are deserving in equal measure” of this liberty animate Justice Kennedy’s opinions and form the basis for his Constitutional guarantee to dignity under the eyes of the law for all individuals.47 2. Romer & Lawrence In Romer and Lawrence, the Court finally forayed back into the debate over gay rights after over a decade since their decision in Hardwick. In Romer v. Evans,48 the Court heard a case regarding an amendment to the Colorado state constitution that barred any political subdivision of Colorado from adopting special anti-discrimination protections for homosexuals. In contrast, in Lawrence v. Texas,49 the Court once again heard a case regarding anti-sodomy laws—the difference being that this time the laws were aimed exclusively at homosexual sodomy. While Romer admittedly did not do as much to advance the new doctrines of substantive due process that were heralded in in Casey—primarily because

45. 46. 47. 48. 49.

Id. at 849 (quoting Poe v. Ullman, 367 U.S. at 542 (Harlan, J., dissenting)). Id. at 851 (emphasis added). Tribe, supra note 31, at 22. 517 U.S. 620 (1996). 539 U.S. 558 (2003).

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Romer was decided based on equal protection grounds based on a traditional tiers of scrutiny analysis that found that the Colorado amendment was borne out of animus50—it did lay groundwork for the Court to hear the case in Lawrence and, eventually, overturn the precedent set in Bowers v. Hardwick.51 As Justice Scalia noted in his dissent, “In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision. . .pronounced only 10 years ago [in Bowers].”52 In this, Justice Scalia was correct. The majority in Romer began with a telling quote from the first Justice Harlan in his dissent in Plessy v. Ferguson,53 in which he stated that the Constitution “neither knows or tolerates classes among citizens.”54 With this quote as their foundation, the majority in Romer decidedly struck down the Colorado amendment, admonishing it for attempting to make homosexuals “stranger[s] to its laws” and beginning the slow process of winding together equal protection and the concept of liberty, central to due process, as well as highlighting the way in which classification out of animus can itself be an issue of liberty. 55 Lawrence was even more bold and made three significant steps forward: by re-emphasizing the dignity of persons and the implications of laws beyond their mere explicit intent to liberty, by explicitly undermining the substantive due process requirements set out in Glucksberg, and by beginning to strongly and explicitly weave together the equal protection and due process claims by overruling Bowers. The majority in Lawrence begins with an admonishment to the majority in Bowers, stating that the Bowers Court’s unsuccessful mission to find a “fundamental right to homosexuals to engage in sodomy” 56 betrayed the Bowers majority’s “failure to appreciate the extent of the liberty at stake.”57 Here, Justice Kennedy makes it a point to emphasize the relationship between the textual scope of a statute and its implications on the very liberties individuals enjoy under the State. The issue in Bowers was not simply whether

50. See Romer, 517 U.S. at 634-35 (1996) (invalidating “status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests”). 51. 478 U.S. 186 (1986). 52. Romer, 517 U.S. at 636 (1996) (Scalia, J., dissenting). 53. 163 U.S. 537 (1896). 54. Romer, 517 U.S. at 623. 55. Id. at 635. 56. Bowers, 478 U.S. at 200. 57. Lawrence v. Texas, 539 U.S. 558, 567 (2003).

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sodomy should be allowed or not; to accept this as the premise fundamentally “demeans the claim the [petitioners] put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.”58 Rather, this was fundamentally a case about autonomy, personal choice, and the right of individuals to enter into intimate relationships and still “retain their dignity as free persons.” 59 For Justice Kennedy, a statute banning such intimacy in the protected space of the bedroom “demean[s] the existence” and attempts to “control the destiny” of those it affects by making their “private sexual conduct a crime.”60 Even more insidiously for that individual’s right to liberty, such a statute acts as an “invitation to subject homosexual persons to discrimination both in the public and the private spheres” and attaches a stigma that effectively acts as “state-sponsored condemnation” of the lives of these individuals.61 Justice Kennedy and the majority make clear that liberty under substantive due process is so much more fundamental and significant to the autonomy and freedom of the individual than whether or not the Constitution grants a specific unenumerated right. It is instead a careful balancing act between individual liberty and governmental interests that affords the individual dignity and respect in the eyes of the law. The majority in Lawrence also puts up significant resistance to the tradition requirement established in the Glucksberg methodology. In combatting the claim made by the majority in Bowers that “proscriptions against [consensual sodomy] have ancient roots,” 62 the majority in Lawrence begins by undermining the idea that there is a longstanding tradition of regulating homosexual conduct. The Court states that “far from possessing ‘ancient roots,’ American laws targeting same-sex couples did not develop until the last third of the 20th century.”63 However, even more significantly, the Lawrence majority makes clear that even if there did exist such a tradition, it would not alone disqualify such conduct from substantive due process protection. The majority quotes Justice Kennedy’s concurrence in Country of Sacramento v. Lewis,64 which stated that: “[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process

58. 59. 60. 61. 62. 63. 64.

Id. Id. Id. at 578. Id. at 576. Bowers v. Hardwick, 478 U.S. 186,192 (1986). Lawrence, 539 U.S. at 559. 523 U.S. 833 (1998).

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inquiry.”65 The majority ends by re-emphasizing this fact, quoting Justice Stevens dissenting opinion in Bowers, which stated that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.”66 Laurence Tribe described Justice Kennedy’s Lawrence opinion as having an entirely new methodology with regards to tradition than that of Glucksberg: [The Court] treated the substantive due process precedents invoked by one side or the other not as a record of the inclusion of various activities—and the exclusion of other activities—from a fixed list defined by tradition, but as reflections of a deeper pattern involving the allocation of decisionmaking roles, not always fully understood at the time each precedent was added to the array. 67 Thus the Court, without once mentioning Glucksberg by name, has clearly distanced itself from the idea that tradition be a requirement of a substantive due process interpretation. When viewed as a complement to the Court’s earlier decision in Casey which heavily favored the approach used in the Poe dissent, the Lawrence opinion seemingly solidifies the Court’s new opposition to the formulaic approach asserted in Glucksberg, leaving its continued precedential weight in serious doubt until future decisions in Windsor and Obergefell. Finally, in Lawrence, Justice Kennedy begins to set forth his view of a tightly-wound equal protection and due process doctrine of “equal dignity.” The case before the Court in Lawrence posed a different issue than that in Bowers. In Bowers, the Court faced a Georgia statute that criminalized sodomy between any two individuals, regardless of gender or sexual orientation.68 However, in Lawrence, the Texas statute in question applied only to same-sex sodomy. This then opened the Court to the question of whether to adjudicate the matter on equal protection grounds, given that the statute treated homosexuals disparately from straight couples, or substantive due process grounds as the Court had done in Bowers. The Court’s decision on how to 65. Id. at 857 (Kennedy, J., concurring). 66. Bowers, 478 U.S. at 216 (Stevens, J., dissenting). 67. Laurence H. Tribe, Lawrence v. Texas: The “Fundamental Right” that Dare Not Speak Its Name, 117 HARV. L. REV. 1893, 1899 (2004). 68. Georgia Code Ann. § 16-6-2 (1984)

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proceed is telling and was essential both to Justice Kennedy’s interweaving of the equal protection and due process rights and to the Court’s desire to overturn the precedent in Bowers. In the opinion, Justice Kennedy stated that “Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.”69 The Court ultimately decided to proceed with a substantive due process analysis to ensure that the misguided ruling in Bowers would be unambiguously overturned and to make clear that such an infringement on personal liberty is untenable under their analysis of the due process clause’s liberty guarantee. However, Justice Kennedy makes clear that such an analysis does not preclude the significance of equal protection in the case. Kennedy wrote: Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. 70 In this way, the Court begins the process of binding together the protections that the two clauses provide, acknowledging that liberty requires equality as much as equality represents the true reach and goal of liberty. This combination will continue to be strengthened in the future with Windsor and Obergefell. B. United States v. Windsor In his dissenting opinion in United States v. Windsor, Justice Scalia protested that: “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”71 While Justice Scalia may have said this facetiously, his prediction turned out to not only be correct, but to

69. 70. 71.

Lawrence v. Texas, 539 U.S. 558, 575 (2003). Id. United States v. Windsor, 133 S. Ct. 2675, 2710 (2013) (Scalia, J., dissenting).

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even guide the lower courts into accepting that Windsor had all but removed the barriers for the judiciary to strike down same-sex marriage bans. The Windsor case is a culmination of the substantive due process methodology formed by Justice Kennedy over the last decade and was pioneering in its application of the principles underlying liberty and dignity to the federalism issue present in the case. The string of lower court decisions that immediately followed the decision in Windsor, with many eagerly ruling on equal protection or substantive due process grounds, further validated Justice Kennedy’s new methodology. In his opinion in Windsor, Justice Kennedy weaves together federalism, dignity, and liberty, from the Fifth Amendment’s Due Process clause, with equal protection implications. Windsor begins with a discussion of the states’ historical authority over marriage, emphasizing the extent of their power over the domestic relations of the family. In this context, the majority relies on the federalism issue that the Defense of Marriage Act (“DOMA”) creates in its intrusion into the realm of state authority to emphasize the egregiousness of the federal government’s actions. By intruding into this realm with the intention of “impos[ing] restrictions and disabilities” on those classes which the states sought fit to “give further protection and dignity to” the federal government demeans both the state’s autonomy in governing matters within its bailiwick as well as the individuals whose lawful marriages it singles out to treat as “second-class marriages for purposes of federal law.” 72 Throughout the opinion, the majority emphasizes how egregious this act was, arguing that in response to certain states’ recognition of same-sex marriages as a reflection of their “evolving understanding of the meaning of equality,” DOMA seeks to “injure the very class [the states seek] to protect,” effectively taking that power away from them.73 However, the majority’s leaning so heavily on the federalism issue did not take away emphasis on the liberty issues at stake with DOMA. Rather, as Laurence Tribe describes, “this reliance on federalism. . .reflected as well his frequent reminder that federalism, like the separation of powers, exists not just to protect the component parts of our governmental architecture, but for the more basic reason of protecting the individuals the architecture serves.”74 Thus, instead of detracting from the liberty argument, the reliance on the structural issue of federalism in fact further emphasizes the depth and importance of the liberty issue at stake. 72. 73. 74.

Id. at 2693. Id. Tribe, supra note 31, at 28.

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Windsor also doubled down on the efforts made in Lawrence, greatly expanding the use and weight of the term “dignity” in the majority opinion and further linking the liberties granted by the Fifth Amendment’s Due Process Clause with issues of equal protection. The majority condemned the purpose of DOMA, stating that both its purpose and effect were to “impose a disadvantage, a separate status, and so a stigma upon all who enter into samesex marriages” which in turn led to real harm not only to the couple but to their families. The majority contends that DOMA “humiliates tens of thousands of children now being raised by same-sex couples [and] makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”75 The same emphasis on humiliation was used in Lawrence, where the Court made of central importance the implications of state actions—in that case, in its proscription against same-sex intimacy—on the lives and liberty of the individuals it effects, including ways that government-sanctioned condemnations can harm the fundamental dignity of the individual. This statesanctioned inequality also creates serious equal protection issues that the majority emphasizes, stating: The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. While the Fifth Amendment itself withdraws from the Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes the Fifth Amendment right all the more specific and all the better understood and preserved.76 With this, Windsor makes even more clear the tightly-knit nature of both liberty and equal protection, binding together equal dignity and protection from classification, exclusion, and selective humiliation by the law. There were many lines of reasoning in the Windsor opinion, and the interweaved narrative of federalism, liberty, and equal protection certainly made it unclear just how lower courts would rule on the numerous same-sex marriage cases they would hear after this decision. However, it became clear in the aftermath of the decision that it was not the simple structural issues of

75. 76.

Windsor, 133 S. Ct. at 2694. Id. at 2695.

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federalism that would come out as the strongest precedents set by Windsor. Lower courts began, en-masse, to rule that bans on same-sex marriage were unconstitutional on varying grounds, including equal protection, substantive due process, the fundamental right to marry, and by affording sexual orientation heightened scrutiny. 77 The Court would then be tasked with the inevitable duty of unifying these disparate narratives when it finally had to, itself, rule on the constitutionality of such bans which it promised were not to be affected by its decision in Windsor. It finally did so in Obergefell v. Hodges. C. Obergefell v. Hodges Obergefell v. Hodges is the dramatic climax in the Court’s decade-long journey interweaving the principles of dignity and liberty, synthesizing the ideas set forth in previous cases into a coherent doctrine, both tying together substantive due process and equal protection as well as extrapolating on how the Court should interpret what “liberty” is as guaranteed by due process. In Windsor, Justice Kennedy went to great pains to explain the states’ traditionally powerful role in governing marriage. In Obergefell, Kennedy would have to “articulate. . .why individual liberty would trump that power.”78 1. Favoring the Poe dissent in evaluating substantive due process claims In each of the cases we have examined, Justice Kennedy’s opinions for the majority have taken strikes at and weakened the Court’s reliance on the principles set forth in Glucksberg: tradition, specificity, and a preference for negative liberties. However, until the opinion in Obergefell, most arguments made against those restrictions did not mention Glucksberg by name, thus leaving the precedential wait of the requirements in doubt. In Obergefell, Justice Kennedy explicitly attacks each to “effectively overrule Glucksberg.”79 The majority’s opinion in Lawrence spent a significant amount of time explaining the flaws in the tradition argument against anti-sodomy laws and making it clear that even the presence of such a tradition would not hinder the Court in ruling them unconstitutional. In that case, a departure from tradition was necessary as the Court could not have tenable asserted any type of tradition

77. See, e.g., Kitchen v. Herbert, 755 F.3d 1193 (2014) (aff’d by Obergefell v. Hodges, 135 S. Ct. 2584 (2014)). 78. Yoshino, supra note 14, at 170. 79. Obergefell v. Hodges, 135 S. Ct. 2584, 2621 (Roberts, C.J., dissenting).

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to sodomy. However, in this case, the Court had a much easier “out” in the obvious tradition of marriage that they had held up time and time again. Rather than simply choosing to rely on the traditional role of marriage and expanding it to apply to same-sexy couples, the opinion in Obergefell largely echoes and re-emphasizes the arguments made in Lawrence and forces the question of the role of tradition in substantive due process to take center stage, stating: The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.80 The majority in Obergefell goes even further, invoking the Poe dissent directly, asserting that “‘[d]ue process has not been reduced to any formula’”81 and that the Court must, instead, “exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.”82 With this clear preference for the Poe method over the rigid formula of Glucksberg, the Court was finally able to cast aside the shackles of tradition once and for all and proceed with its liberty analysis. Closely related to the tradition requirement set out in Glucksberg is the specificity requirement. This asserts that a substantive due process claim to recognize an unenumerated right must look to history using the narrowest possible conception of that contested right. Without the strict requirement of history, such a restriction is stripped of much of its power. However, the respondents in Obergefell made it a central point in their arguments that the petitioners did not seek the right to marry—in the traditional definition including one man and one woman—but a non-existent “right to same-sex marriage.”83 In response, the majority cites years of precedent in the right to marriage, stating: “Loving did not ask about a ‘right to interracial marriage’; Turner did not ask about a ‘right of inmates to marry’; and Zablocki did not ask about a ‘right of fathers with unpaid child support duties to marry.’” 84 The 80. Id. at 2598. 81. Id. (quoting Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting)). 82. Id. (quoting Poe, 367 U.S. at 542 (Harlan, J., dissenting)). 83. Brief for Respondent at 8, Obergefell v. Hodges, 235 S. Ct. 2584 (2015) (No. 14-556). 84. Obergefell, 135 S. Ct. at 2602 (discussing Turner v. Safley, 482 U.S. 78, 95; Zablocki v. Redhail, 434 U.S. 374, 384; Loving v. Virginia, 388 U.S. 1, 12).

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majority’s citation of these cases alone indicates that they do not intend any sort of narrow conception of the right to marry, instead opting to show that “marriage” itself is malleable and can be expanded to include same-sex couples just as previous expansions allowed it to include interracial couples or incarcerated individuals. As Kenji Yoshino argues, the majority does not make clear whether this line of reasoning would apply only to cases in which a higher-order right—such as marriage—is already in place, or whether it would apply to all substantive due process inquiries. 85 However, the case for the complete abandonment of the specificity requirement is strong and supported by the majority’s much deeper reliance on the notion of “liberty” and repudiation of the tradition requirement in favor of a Poe-style analysis. This abandonment could then, as Yoshino argues, help legitimize the process of interpreting unenumerated rights for it would signify a shift from “a jurisprudence of ‘unenumerated rights’ and toward a jurisprudence of interpreting the ‘enumerated’ right of ‘liberty.’” 86 Finally, Glucksberg initially set out a requirement that the Court show a preference for granting substantive due process claims concerning “negative liberties,” i.e. “freedom from” rights, over “positive liberties,” i.e. “freedom to” rights. The issue with same-sex marriage is that it is an inherently positive liberty in that it requires the state to explicitly approve of the relationship rather than simply not interfere in it, as was the case in Lawrence where the issue at hand was “freedom from” government intrusion into the bedroom. The Chief Justice emphasized this issue in his dissent, stating: “petitioners do not seek privacy. . .[but rather]. . .public recognition of their relationships, along with corresponding government benefits.”87 Justice Kennedy’s majority opinion does not spend much time on this issue and, rather than proposing a solution to it, proposes a replacement to the underlying logic at play. The majority states: “Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.” In other words, it is not enough that homosexuality is not in and of itself explicitly unlawful as that does not repair the indignity—and thus deprivation of liberty—that accompanies their exclusion from the institution of marriage. Thus, the majority makes a strong case for finding that the full promise of Liberty cannot always be preserved through negative liberties—that is, by preventing the state from proactively harming an individual. Simple exclusion and inaction, too, can cause real harm and therefore it falls to the 85. 86. 87.

Yoshino, supra note 14, at 165. Id. at 166. Obergefell, 135 S. Ct. at 2620 (Roberts, C.J., dissenting).

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courts to command the states to recognize the equality that individuals are granted by the Constitution. 2. Linking substantive due process and equal protection Just as the Lawrence decision depended on both equal protection and liberty principles, Obergefell also marked a crucial step in Justice Kennedy’s continued binding together of substantive due process and equal protection jurisprudence into a cohesive whole. The majority opinion makes this explicit, stating: The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. . .This interrelation of the two principles furthers our understanding of what freedom is and must become. 88 In this analysis, Obergefell is similar to both Lawrence and Loving, but it also goes beyond both. In Lawrence, the Court stated that both equal protection and liberty issues were implicated in the case, due to the fact that the statute at issue not only banned sodomy, but went further and exclusively banned samesex sodomy. However, the Court decided that “a liberty analysis advanced both interests,” and thus the case was decided on substantive due process grounds. There were two crucial reasons for this approach. First, the Court wanted to overrule Bowers which had previously held that there was no guarantee to same-sex sodomy implicated in the Due Process Clause. The second, more significant reason, and the one that is operative in Obergefell as well, was that an equal protection ruling may not actually have the intended effect of advancing the liberty interests of the same-sex couples that were harmed in the case. As Justice O’Connor explained in her concurring opinion in Lawrence, an equal protection decision would have given states two options for conforming to the ruling. States could have “leveled up” and eliminated all prohibitions on sodomy, or, conversely, they could have “leveled down,” expanding their anti-

88.

Id. at 2602 (citations omitted).

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sodomy statute to capture different-sex couples as well.89 Each response would have satisfied an equal protection ruling, but the second response would have continued the harm against the same-sex couples as well as expanded it onto straight couples as well, while “the dignitary slight of such sodomy statues would be largely directed toward same-sex couples.”90 The same possibilities would have been at play had the Court decided Obergefell on solely equal protection grounds, with some states undoubtedly taking the position that it was time to get out of the business of overseeing marriages in all cases in order to continue to deny marriages and their corresponding benefits to same-sex couples.91 However, by invoking both equal protection and due process liberty, asserting, in both cases, the fundamental liberties at stake in outlawing certain types of intimacy or denying certain marriages, the states are forced to level up.92 The dual analysis here uniquely protects the liberties and dignities of all of those involved in a way that either a due process or equal protection analysis alone would not accomplish. This new doctrine leads to a new view of liberty, what Kenji Yoshino calls “antisubordination liberty.”93 This new doctrine will, in combination with the Court’s newly asserted preference for the “reasoned judgment” approach to substantive due process, put a much greater weight on the “impact of denying such liberties to historically subordinated groups” in identifying liberties protected by the Due Process Clause. With its combination of an equal protection and due process analysis, the doctrine asserts both liberty and equal protection principles while also ensuring a continuance of the tradition of both Obergefell and Lawrence in preventing states from skirting around Court rulings made under just one of the two principles. The Court will also continue to take into account the harm that legislation can have on the fundamental dignity and autonomy of the individual, just as it did in this case. In this way, the Court will rediscover the original intention of the Fourteenth Amendment: 89. Yoshino, supra note 14, at 173. 90. Id. 91. Despite ruling on due process grounds, this very situation did in fact occur following the Supreme Court’s decision in Obergefell. A handful of local officials in states such as Alabama and Kentucky refused to issue licenses to any couples in order to avoid granting same-sex licenses. Most famously, a Kentucky county clerk named Kim Davis cited her religious convictions against same-sex marriage as grounds for her refusal to issue licenses. Alan Blinder & Richard PérezPeña, Kentucky Clerk Defies Justices on Marriages, N.Y. TIMES, Sept. 2, 2015, at A1. 92. Yoshino, supra note 14, at 173. 93. Id. at 174.

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to protect those groups, historically subordinated and deprived of their dignity, from continued harm at the hands of a powerful majority.

III. FURTHER IMPLICATIONS A. Dignity and the Resurgence of the Anti-Humiliation Principle We have thus far examined the many implications of the string of decisions written by Justice Kennedy from Casey to Lawrence to Windsor and finally to Obergefell in innovating upon the Court’s substantive due process and equal protection jurisprudence, charting a course away from their previous attempts to create formulaic approaches to each. However, there is also another underlying theme to all of these decisions—one primarily derived from the common word that permeates them all: dignity. Underlying the “equal dignity” that Justice Kennedy declared for same-sex couples in his opinion in Obergefell may be an attempt to return to a principle known as anti-humiliation in modernday civil rights jurisprudence. Whereas present-day civil rights cases are adjudicated through the more technocratic lens of “tiers of scrutiny” that were borne out of Carolene Products v. United States,94 this was not the logic used in one of the most famous civil rights cases of the century, Brown v. Board of Education,95 and not, as some scholars contend, the intended method of carrying out justice and equality envisioned in the Fourteenth Amendment. Here, I examine how the cases discussed may signal an end to the technocratic tiers of scrutiny framework and a return to the more expansive jurisprudence of Brown. 1. Anti-Humiliation Yale Law Professor Bruce Ackerman’s volume on the civil rights revolution, argues that the central thrust of the Second Reconstruction beginning in the mid-1950s was in eliminating what he called “institutionalized humiliation” through the “anti-humiliation principle.”96 Ackerman derives the definition for institutionalized humiliation from the simpler concept of

94. 304 U.S. 144 (1938). 95. 347 U.S. 483 (1954). 96. Kenji Yoshino, The Anti-Humiliation Principle and Same-Sex Marriage, 123 YALE. L. REV. 3076, 3078 (2014); 3 BRUCE ACKERMAN, WE THE PEOPLE: THE C IVIL R IGHTS REVOLUTION (2014).

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“personal humiliation,” which he defines as “a face-to-face insult in which the victim acquiesces in the effort to impugn his standing as a minimally competent actor within a particular sphere of life.” 97 Institutionalized humiliation is personal humiliation elevated to the level of official institutional policy, amplifying its denigrating effect.98 During the years preceding the Second Reconstruction, this type of institutionalized humiliation was rampant in the form of Jim Crow laws which restricted access to voting and even interracial marriage. These laws were a constant reminder to the targeted groups that they were inferior; an affront that was enshrined in the law. Brown championed the landmark decision in Brown v. Board of Education for its “emphasis on the distinctive wrongness of institutionalized humiliation.”99 In the same way, Ackerman criticizes the judiciary’s move away from the logic of Brown and the opinion in Loving, where the Court “replaced a moral principle with a more technocratic legal one concerned with ‘tiers of scrutiny.’”100 Ackerman argued that the Court’s reasoning should not have rested on the categorization itself but rather in how “the marriage ban forced interracial couples to present their relationship to the larger community as if it were diseased, disreputable, criminal.”101 As Kenji Yoshino points out, a new logic that did not focus solely on the categorization itself would have significant implications, particularly on cases such as the affirmative action case currently at the Court, Fisher v. University of Texas.102 Affirmative action laws would certainly call for heightened scrutiny today, but under the logic of Brown could not be said to violate Ackerman’s anti-humiliation or Yoshino’s anti-subordination principle because the laws do not humiliate white applicants such as Abigail Fisher by “undermining their minimal competence in the sphere of education.”103 2. Dignity and Abandoning the Court’s Fundamental Framework The logic of Brown may be experiencing a revival. Ackerman argues that the opinion in Windsor is the closest to such a revival, praising the Court for

97. 98. 99. 100. 101. 102. 103.

3 ACKERMAN, supra note 96, at 138 (emphasis omitted). Yoshino, supra note 96 at 3079. 3 ACKERMAN, supra note 96, at 128. Yoshino, supra note 96 at 3080. 3 ACKERMAN, supra note 96, at 302. 133 S. Ct. 2411 (2013). Yoshino, supra note 96 at 3081.

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“treat[ing] Loving’s concern with suspect legislative purposes as a secondary issue, emphasizing instead the evils of institutionalized humiliation in vindicating the claims of same-sex couples.”104 However, as we have seen in our examinations of cases, this trend began as far back as Lawrence, with Justice Kennedy’s use of the term “dignity.” For what, as Kenji Yoshino argues, “is the opposite of ‘humiliation’ but ‘dignity’?” 105 In each opinion, the weight and usage of the term “dignity” has increased, slowly overshadowing the Court’s usual framework when handling equal protection or due process claims. Even the Chief Justice, in his dissent, stating that: “Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases” and that under such a framework the Court should have decided the equal protection claim using rational basis scrutiny, a standard, he argues, is easily met in the case of samesex marriage bans.”106 However, it is clear from both the Windsor and Obergefell decisions, the Court was determined not to take the much more simple and direct approach of elevating the status of sexual orientation to require heightened scrutiny. Rather, as Reva Siegel noted in her comment on the Windsor case, “What distinguishes Windsor from the race cases of the 2012 Term is not the subject matter or reach of the decision, but its determination to redress the dignitary and material injuries law inflicts on a minority group.” 107 Until the Court’s decisions in Windsor and Obergefell, the Supreme Court heavily favored the anti-classification principle, holding suspect any types of racial classifications.108 However, the new shift to an emphasis on “dignity” could cause a resurgence of the anti-humiliation principle. Already, we have seen that lower courts quickly and nearly uniformly used the references to “dignity” in Windsor to invalidate statewide same-sex marriage bans across the nation. Their willingness to adapt to the new logic so quickly is telling and suggests a potential for a replacement for the tiers of scrutiny framework we have today. This would have broad implications for expanding access to equal protection claims in the future. Today, the scrutiny framework severely restricts the types of claims that can succeed under equal protection. Unless a claimant is part of a protected class or the right claimed is fundamental in nature,

104. 3 ACKERMAN, supra note 96, at 291. 105. Yoshino, supra note 96 at 3082. 106. Obergefell v. Hodges, 135 S. Ct. 2584, 2623 (Roberts, C.J., dissenting). 107. Reva B. Siegel, The Supreme Court, 2012 Term—Foreword: Equality Divided, 127 HARV. L. REV. 1, 77 (2013) 108. Yoshino, supra note 96 at 3081.

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rational basis review imposes a nearly insurmountable burden to their claim. With a new potential emphasis of anti-humiliation and anti-subordination, however, even discrimination on the basis of sexual orientation, which remains an unprotected class, can legitimately be struck down under equal protection. B. The Future of Civil Rights Litigation There are additional concerns regarding the new direction that Justice Kennedy is taking. In his dissent in Obergefell, the Chief Justice raised one of these concerns, making frequent references to the Court’s opinion in Lochner v. New York,109 which, in an infamous case of judicial activism, found a “freedom of contract” right within the unenumerated rights protected by the Due Process Clause while striking down largely reasonable economic regulations. Others believe that finding any type of “right to dignity” in the Constitution could lead to future judicial abuse due to the broad nature of the concept of “dignity.” 110 However, there are ways for the judiciary to use anti-humiliation and antisubordination doctrines in adjudicating due process and equal protection claims. Kenji Yoshino describes one potential solution to this issue: the civil rights trial. Yoshino points to the California case Perry v. Schwarzenegger111 and the unique way in which it “intuited the importance of establishing institutionalized humiliation” in its trial phase.112 Had the plaintiffs simply sought to convince the trial court that the California law banning same-sex marriage should be reviewed under heightened scrutiny, they would not have had to spend the time that they did in providing expert and lay testimony attesting to the humiliating effect of the ban.113 The Perry case exemplifies the ways in which a trial can help judges discover whether or not a state law humiliates an individual in a way that would allow for a return to the more expansive jurisprudence of Brown. First, Yoshino points to the individual voices of humiliation that were present in the Perry case. In the proceedings, individual plaintiffs were able to come forward and recount their own personal experiences with the humiliation

109. 198 U.S. 45 (1905). 110. Jeffrey Rosen, The Dangers of a Constitutional ‘Right to Dignity’, THE ATLANTIC (Apr. 29, 2015), http://www.theatlantic.com/politics/archive/2015/04/the-dangerous-doctrine-ofdignity/391796/. 111. 704 F. Supp. 2d 921 (N.D. Cal. 2010). 112. Yoshino, supra note 96 at 3081. 113. Id.

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that they faced in their daily lives as a result of the state’s refusal to recognize their same-sex relationships, including in the mundane tasks of simply opening a bank account or checking into a hotel room. 114 Second, Yoshino points to the use of expert testimony in the trial to supplement and contextualize the individual narratives of humiliation with hard data sociological research to show how the state’s actions in stigmatizing same-sex marriage directly led to the humiliation the plaintiffs experienced in their daily lives. 115 Finally, Yoshino argues that the ability to cross-examine individuals and expert witnesses at the trial level subject admitted evidence of discrimination and humiliation to a much higher level of rigor.116 The usefulness of subjecting evidence to such adversarial rigor was particularly clear in proceedings across the country on same-sex marriage in which many conservative groups attempted to cite non-academic and unsupported studies that decried the ill effects of same-sex marriage on issues such as child rearing or family values. 117 At the trial level, such dubious evidence can be vetted and challenged. This is particularly an issue today in which the Supreme Court relies more and more heavily on amicus briefs that cite such poorly-supported evidence, as Justice Alito himself did in the Obergefell case.118 Thus, it is clear that the numerous trial court hearings on same-sex marriage across the country prior to the Supreme Court’s decision in Obergefell may also help pave the road back to a greater reliance on civil rights trials in order to advance the new doctrines of anti-humiliation and personal dignity ushered in by Obergefell.

IV. CONCLUSION In the last two decades, cases expanding the rights of same-sex couples have added a new vocabulary to substantive due process and equal protection jurisprudence. These rulings implore the public and the courts to consider how the laws that their government passes affect its constituents at a fundamental level, beyond the textual intent of the statute. They encourage a new way of understanding concepts fundamental to the history and tradition of our Nation.

114. Id. at 3093-4. 115. Id. at 3097. 116. Id. at 3100. 117. Id. at 3091. 118. Adam Liptak, Seeking Facts, Justices Settle for What Briefs Tell Them, N.Y. Times, Sept. 1, 2014, at A10.

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Liberty, equality, and the full protection of the law are more than procedural nomenclature. They represent a body of ideas, at the core of our Constitution and centuries old, which aspire to continually aid in our undertaking of further perfecting our union and protecting the individual and the sacred space they hold in our society. The changes in substantive due process and equal protection developed in this case law have great potential to help our society better achieve these goals. By returning to a more holistic understanding of what it means to discriminate—which were first coherently developed in the Court’s decision in Brown v. Board—and how to understand the roles played by the dignity of the individual and the ability of the State to demean or to bolster that dignity, we come away with a better understanding of what the full promise of the law is. Justice Kennedy’s principle of granting all individuals equal dignity under the law laid out in these decisions and developed over the greater part of the last decade capture these ideas well have ushered in a major shift in constitutional interpretation that will have great ramifications for years to come.

THE LOGICAL CLOSURE PRINCIPLE, INALIENABLE MORAL VALUE OF DISABLED PERSONS, AND LEGAL PROTECTIONS FOR ANIMALS Kartik Raj*

ABSTRACT I take it as an uncontroversial claim that if a human is severely mentally disabled, that does not give one justification to cage them, display them for entertainment, use them as a test subject, or eat them. The strong intuition that mentally disabled humans are morally valuable comes into conflict with the widely held notion that non-human animals may be exploited precisely due to their lesser cognitive capacity. 1 With the value of mentally disabled people fully considered, the justifications for the exploitation of most animals devolves into arbitrary speciesism and naturalistic fallacy. As such, the current United States legal system falls into logical contradiction based on the protections granted in the Americans with Disabilities Act of 1990 (ADA)2 , the Supreme Court case Youngberg v Romeo3 , by the US National Bioethics Advisory

*

Kartik Raj is a third year UCLA student majoring in philosophy. Kartik plans to pursue a joint degree program in Law and Philosophy. He is interested in animal justice theory and its application to law. Editor: Nairurth Borath is a first year political science major at UCLA. She plans on attending law school after graduation. 1. I will understand a ‘morally valuable’ being as a being whose nature prevents one from ethically abusing or exploiting them. When ‘value’ is used in isolation, it should be understood as ‘moral value’. 2. Americans with Disabilities Act of 1990 (ADA) § 12101 -12213, 42 U.S.C. § (1990). 3. Youngberg v. Romeo, 644 F.2d 307, (U.S. Ct. 1990)

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Commission4 , and the stark absence of consistent protections for any nonhuman animals. As disabled human beings are valuable, the US legal system should not give up the ADA. Therefore, if it is granted that staggering logical inconsistency is undesirable for any legal system, then the US legal system is logically committed to expanding protections for non-human animals and ought to do so. With the conclusion of my primary argument, I propose that sentience, or phenomenological consciousness, should be taken as a reasonable and intuitive basis for legal protections for both mentally disabled human beings and for many types of nonhuman animals.

A NOTE ON THE TERM ‘DISABILITY’ Throughout my argument, I will be using various terms such as ‘disabled person’ and ‘mental disability’. However, I recognize that there are many legally ‘disabled’ people who, once they are granted equal access to public life, are fully independent, productive and empowered. As such, the term ‘disability’, when applied to those people, is problematic: it assumes a fault in the individual rather than a fault in the society that is “hostile to their differences” and designed in such a way to exclude their access. 5 My argument does not refer to those described above. Unless otherwise specified, my argument refers to those ‘disabled’ people who, due to severe cognitive impairment, are unable to independently feed, protect, or otherwise sustain themselves without dedicated caretakers. Eva Kittay, who has written substantially on issues of care and justice for disabled people, describes her daughter’s mental disability as resulting in her “total dependence”. 6 An even more dramatic example of this type of disability was demonstrated in Nicholas Romeo, described by the Supreme Court’s Justice Powell as “profoundly retarded” with “the mental capacity of an 18-month-old child, with an I.Q. between 8 and 10. He cannot talk, and lacks the most basic self-care skills”. 7 Romeo’s mother was quoted as saying: “Since my husband’s death, I am unable to handle him. He becomes violent—Kicks, punches, breaks glass; He

4. T he US National Bioethics Advisory Commission set up outlines restricting the treatment of the mentally disabled, especially in areas of medical/psychological testing, as will be discussed below. 5. E. F. Kittay, When Caring Is Just And Justice Is Caring: Justice And Mental Retardation, 557-558, 13.3 Public Culture (2001). 6. Id. at 560. 7. Youngberg, 644 F.2d at 309.

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can’t speak—wants to express himself but can’t. He is [a] constant 24 hr. care.”8 The problematicity of ‘disabled’ does not properly apply to those severely mentally disabled persons in focus, as these individuals are impeded in a fundamental way that is not simply addressed by expanding equal societal inclusion to them. Unlike those in wheelchairs, or with speech impediments, the severely mentally disabled will never be able to drive, care for dependents, or understand the process and importance of voting. As Kittay notes, “of all disabled people, the severely mentally retarded have least benefited from the inclusion fought for by the disability community.”9 As such, I will take the usage of the term ‘disabled’ in applying to those with severe mental impediments to be appropriate and not disempowering. I. THE LOGICAL CLOSURE PRINCIPLE AND ITS APPLICATION TO LAW A fundamental concept I will be invoking in my argument is the Logical Closure Principal. This principle states that one is committed to believe the logical consequences of the explicit beliefs they hold (a version of the Epistemic Closure Principle). 10 For example, if I explicitly claim that only humans have value and know that Rover is a dog, then I am committed to the belief that Rover has no value. One may expand this principle to include a normative aspect: one ought to believe the logical consequences of their explicit beliefs. If I believe murderers should be jailed, and if I know Joe is a murderer, then I ought to believe that Joe should be jailed. If I am absolutely committed to the belief that Joe should not be jailed, then I ought to reconsider and change my other beliefs to avoid self-contradiction. I take it as a reasonable assumption that this principle, with the normative aspect included, applies not only to individuals but to social constructs as well, including legal systems. To illustrate: if Kate is legally disabled, then the US legal system ought to extend her the rights guaranteed to all disabled people by the Americans with Disabilities Act of 1990 (ADA). 11 If the US legal system, for some reason, absolutely refuses to grant Kate those rights, then the legal

8. Youngberg, 644 F.2d at 325. 9. Kittay, supra at 558. 10. Steven Luper, The Epistemic Closure Principle, Stanford Encyclopedia of Philosophy, 2012, available at http://plato.stanford.edu/entries/closure-epistemic/ 11. § 12101-12213

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system is obligated to either withdraw her disabled status or repeal the ADA. The application of the Logical Closure Principle to the law is quite intuitive. 12 It should be uncontroversial that the law should be applied in a consistent, non contradictory manner, that doesn’t treat certain people or classes of beings differently for entirely arbitrary reasons. Using the Logical Closure Principle13 , I will argue that the US legal system is logically and ethically committed to providing legal protections for certain non-human animals if it is to avoid self-contradiction. The legal aspect of this argument reflects a greater background of inconsistency in ethical thought regarding rationality, mentally disabled humans, and non-human animals. This ethical background will be outlined first, and then its application to the legal system will be demonstrated.

II. RATIONALITY AND MENTALLY DISABLED HUMANS If we assume that human beings have moral value, we can ask what it is about humans that makes them valuable. Throughout much of the history of Western philosophy it was believed that intelligence or rationality of human beings gives them a unique moral value amongst all other organisms. From Aristotle to Locke to Kant, many of the most prolific philosophers in ethics and politics have broadly shared this general belief to some degree, differently formulated but in many ways fundamentally similar. 14 The idea that it is our rationality that gives us value as human beings becomes problematic when considered in the context of the mentally disabled. Most severely mentally disabled people are much less rational or entirely irrational under colloquial meanings of the term. The irrationality of the mentally disabled especially applies under the philosophical definitions, which often operate with a standard of “idealized rationality�. 15 Because they are irrational, are mentally disabled people less morally valuable than other people? In fact, if rationality is alone what gives value, then it would follow that the most severely mentally disabled have no value at all. Then, if they really have no moral value, may we exploit and abuse them however we please? 12. Luper, supra. 13. Luper, supra. 14. Kittay, supra at 563. 15. Martha C. Nussbaum, Capabilities and Disabilities: Justice for Mentally Disabled Citizens, 133-165, Philosophical T opics 30.2 (2002)

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One can (but shouldn’t) decide this apparent problem is no real problem after all. One may believe that rationality is indeed the only characteristic that gives a person value or even makes them a person at all. One may retain this belief and dismiss the notion of the value of disabled people simply as a mistaken intuition based on groundless sentimentality or something of the sort. An example of a philosopher who recognizes this issue is R. G. Frey. Peter Singer points out that Frey himself, an opponent of animal rights who supports vivisection, said there is “nothing which enables” one to support the vivisection for animals and not also support it for certain humans in cases where similar scientific benefits are produced. On the other hand, of course, one may remain committed to the value of mentally disabled people, and instead become skeptical of the rationality-based value systems. Eva Kittay articulates this notion powerfully in terms of personhood: “If personhood is limited to those who possess certain intellectual capacities and to those who are productive, then my daughter would not be a person. But my daughter is a person . . . If traditional conceptions of personhood are not capacious enough to include [my daughter] and those who share her impairments, we need a new definition.”16 This very intuitive assumption that the mentally ill have value is noted and accepted at face value even by professional ethicists, such as Don Marquis. In a paper on abortion, he writes: “Hence, the needed principles such as . . . “It is prima facie wrong to kill only rational agents” do not explain why it is wrong to kill infants or young children or the severely retarded or even perhaps the severely mentally ill”. 17 One can remain dedicated to the equality of human beings without ignoring the fact that there are ineliminable differences between individuals in fundamental areas such as our intellectual capacity. As Peter Singer points out, the principle of equal for consideration for human beings should not rest on all humans being literally equal in all conceivable areas, mental ability included. 18 Rather than understanding human equality as based on actual, exact equality amongst all humans in areas such as the intellect, we should treat the principle

16. 17. (1989) 18.

Kittay, supra at 568. Don Marquis, Why Abortion is Immoral, 183-202, T he Journal of Philosophy 86.4 Singer, supra at 3-4.

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of equality as a general moral guideline for how we should treat each other. 19 In other words, we need to give equal consideration to others, regardless of their intelligence or productivity. This is not to say that proponents of intelligence or rationality-based value systems are entirely incapable of contriving a means of condemning the abuse of mentally disabled people. For example, the Kantian may say that while the mentally disabled do not themselves have moral value, a rational person acting morally would not abuse them in certain ways. However, it is extremely difficult to justify restrictions towards the mentally disabled under Kant’s philosophy as the only subjects of moral value are rational persons, so how could one have any obligation towards an irrational being? If serious contemplation and philosophical work is required to ascribe mentally disabled people any direct value under a certain moral system, it calls into question the merit of that system. 20 As philosopher Martha Nussbaum puts it, consideration for the mentally disabled under these rationality-based theories is an “afterthought”, and this problem constitutes a “serious flaw” in such approaches. 21 Patrick Frierson, when writing on Kant’s philosophy, points out that the nature of mental disorder has “potential to undermine” aspects of Kant’s ethics. 22 As said above, the one who believes in a rationality-based system of morality may avoid contradiction if they do not assign the mentally disabled any significant moral value. Although that position may be logically valid, I do not take it as an ethically sound position worthy of serious consideration. As such, I believe it is a justified assumption that mentally disabled people do have value, and I will resume with the argument taking that idea as a given truth.

III. LOGICAL AND MORAL IMPLICATIONS OF THE LEGAL PROTECTIONS FOR DISABLED PEOPLE As my argument is ultimately about the law in the US, it needs to be demonstrated that the US legal system shares my assumption that disabled people (including the severely mentally disabled) have moral value; in other words, that they cannot be abused, neglected and exploited by anyone simply

19. Id. at 5. 20. Patrick Frierson, Kant on Mental Disorder. Part 2: Philosophical Implications of Kan t ’ s Account, 1-21, History of Psychiatry 20.3 (2009) 21. Nussbaum, supra 134. 22. Frierson, supra 12.

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due to their disability. The fact that the US legal system does value the lives of disabled people is evident. The greatest demonstration of this is the Americans with Disabilities Act of 1990, which states: The Congress finds that (1) physical or mental disabilities in no way diminish a person’sright to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination . . .It is the purpose of this chapter (1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities”23 Kittay points out a critical nuance of the ADA: “The enactment of the . . . (ADA) is an affirmation of the citizenship and the justice due to all disabled persons. That act, however, does not try to establish the ground for affirming the personhood or citizenship of disabled Americans. It assumes it”. 24 It is an important observation that Congress did not feel the need to explicitly point out that disabled people are indeed people and thus protected from exploitation. This point makes it evident that the legislatures that passed the ADA shared the unspoken, common-sense assumption that disabled humans have value and are worthy of protection. The wording between those who defend the value of the mentally disabled varies. Congress discusses their value in terms of their rights and by condemning discrimination against them. 25 Kittay describes their value in terms of their personhood. 26 Regardless of the formulation, the basic moral value of the disabled person is assumed, and this assumption clearly extends to the US legal system. A further demonstration of this point is the Supreme Court case Youngberg v Romeo. 27 Nicholas Romeo, as mentioned before, was committed to Pennhurst State School, a mental institution, when his mother became unable to care for him. Romeo was physically constrained for many hours each day and physically injured by himself and other patients. The case was brought to 23. 24. 25. 26. 27.

§ 12101 Kittay, supra 565. § 12112 Kittay, supra 567. Youngberg, 644 F.2d at 307.

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court due to the long periods of restraint and with the claim that the Pennhurst staff failed to provide appropriate treatment and measures to avoid Romeo’s injuries (disability justice). In his opinion for the case, Justice Powell held that Romeo’s “liberty interests require the State to provide minimally adequate or reasonable training to ensure safety and freedom from undue restraint”. 28 Justice Powell called the State’s responsibility to “provide reasonable safety” for Romeo an “unquestioned duty”. 29 In effect, the Supreme Court found that Romeo retained his Constitutional “liberty interests”, despite him having “the mental capacity of an 18-month-old child”. 30 Perhaps the most important evidence for the institutionally recognized value of the mentally disabled comes from the now defunct US National Bioethics Advisory Commission (NBAC). In their reports, used as guidelines for government agencies in a number of areas and particularly in research, they proclaimed that research subjects with mental disabilities are “generally vulnerable in the research setting”, that they should not be “unnecessarily harmed”, and officials should “avoid situations that create susceptibility to harm or coercion”. 31 Furthermore, those research participants who are harmed must be “cared for and compensated”. 32 On this note, the NBAC states that “this is simple justice”. 33 The NBAC sought to recommend protections for the mentally disabled that would ensure that “subjects’ rights and interests are fully respected”. 34 The wording here quite clearly reinforces the notions from the ADA and Youngberg that the value of the welfare of mentally disabled people is straightforward and assumed across US government agencies. Thus, not only does the US legal system assume that the mentally disabled may not be abused due to their disability, 35 it in fact holds that the State has a positive responsibility to provide for the safety and freedom of those who are

28. Youngberg, 644 F.2d at 319. 29. Youngberg, 644 F.2d at 324. 30. Youngberg, 644 F.2d at 324. 31. National Bioethics Advisory Commission, Ethical and Policy Issues in Research Involving Human Participants,Report and Recommendations of the National Bioethics Advisory Commission, 2001, at 4-5. 32. Id. at 5. 33. Id. at 5. 34. Bioethics Research Library at Georgetown University, Executive Summary - Research Involving Persons with Mental Disorders T hat May Affect Decisionmaking Capacity, https://bioethicsarchive.georgetown.edu/nbac/capacity/Executive.htm 35. Kittay, supra 565.

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severely disabled (Youngberg v Romeo). 36

IV. THE ARBITRARY NATURE OF SPECIESISM As the US legal system, fundamentally and without the need for explanation, values the lives of the severely mentally disabled, it logically follows that the value of a being is not based on its rational capacity. With that said, there is an argument which allows the US legal system to c ontinue omitting significant protections for nonhuman animals, all concerns of rationality aside. This idea is that we, as human beings, have a special responsibility and ethical mandate to look after members of our own species. This explains, some would claim, why we are justified in valuing the mentally disabled of our own species, while not placing much if any value on members of other species. This outlook, which categorizes beings as more or less valuable or worthy of protection solely on their species membership, shall be referred to as speciesism. I think it is accurate to say that many individuals, as well as the US legal system, embrace speciesism as a convenient solution to the ethical quagmire in discussion. However, the seemingly intuitive nature of speciesism quickly dissolves when faced with a simple thought experiment, as I shall demonstrate. Suppose that there is an isolated island that human beings migrated to many thousands of years ago. These people, after thousands of years living in complete isolation, evolved into a different species. Suppose that this evolution was not drastic at all. These ‘humans’ are identical in appearance and cognitive capacity to actual human beings. However, their slight genetic differences render them unable to mate and produce fertile offspring with regular humans, making them a different species. 37 At this point, one may wonder, may an actual human being abuse and exploit these quasi-humans without any restriction? After all, they are not a member of our own species. Under speciesism, it should be that we can treat and use them however we desire, whether that be enslavement, scientific experiment or using them as a food source. This, after all, would be the stance of a logically consistent human speciesist. The speciesist could not object that these quasi-humans are valuable due to their intelligence, for it is already taken that intelligence is not what gives value, because we value our mentally 36. Youngberg, 644 F.2d at 307. 37. Understanding Evolution, Defining a Species, University of California Museum of Paleontology, (18 January 2016), http://evolution.berkeley.edu/evolibrary/article/evo_41

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disabled. So then, the speciesist lacks the ethical resources to condemn abus ive treatment of the quasi-humans without falling into contradiction. It should be intuitive that we cannot treat a person, identical to humans in all other respects, as devoid of value simply because of minimal genetic differences that render them a separate species. Although it would be interesting to see how precisely the US legal system would handle such beings, it is safe to assume that we would not be allowed to eat or enslave these people solely because of their slight genetic difference. Another interesting quirk of the speciesist position is that, if an advanced race of aliens descended upon Earth and took to eating human beings, the speciesist would lack the resources to label those aliens as immoral or unjust. After all, the hypothetical aliens are merely following the very doctrine that the speciesist upholds: benefitting one’s species over all others, regardless of the nature of those other species. It is worth wondering whether those speciesist humans that exist today would retain their beliefs in the event of such an invasion, or whether speciesism would be abandoned as it was no longer ethically convenient for humans to espouse. Speciesism is not a rationally coherent moral system. The example of the quasi-humans demonstrates the utter arbitrary nature of speciesism — if one mutates ever so slightly, so that they are no longer exactly human, it is absurd to say that at that very moment they suddenly lose all of their moral value. Als o recall that one cannot simply flee back to the rationality-based moral systems at this point, unless one is to give up the moral value of mentally disabled humans.

V. IMPLICATIONS FOR ANIMAL LAW As previously stated, legal systems are not immune to the Logical Closure Principle, ethical aspects included. 38 Under this principle, the US legal system is rendered ethically accountable for upholding the logical consequences of its assumptions, including those regarding protections for nonhuman animals. Thus far, I have premised or argued that: 1. Mentally disabled human beings have inalienable moral value that prevents us from abusing or exploiting them 2. The US legal system shares this notion of the value of the mentally disabled, and even claims the State has a responsibility to look after

38.

Luper, supra.

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their safety and freedom 3. Rationality or intelligence cannot be what gives human beings their moral value, for that would commit us to contradicting the value we place on the mentally disabled 4. Our species membership cannot be what gives human beings their value, for speciesism leads one into obvious absurdity from simple examples These points together indicate that mentally disabled human beings are valuable for a reason other than their rationality or their species membership. There are multiple possibilities for what does give value for the mentally disabled and for humans in general. However, for the argument against legal inconsistencies, establishing the exact grounding of moral value for the mentally disabled is entirely unnecessary, although I will make a proposal to this effect in the following section. Disabled human beings, although often unjustly abused, have a generally recognized moral value and have been extended legal protections in the US . 39,40,41 These prominent legal protections attempt to preserve the welfare and liberty of disabled persons. The important question, then, is this: as moral value is not derived from species membership or intelligence, how then can one justify the legallybacked, widespread, industrialized abuse and exploitation of nonhuman animals, while affording protections to severely mentally disabled human beings? The fact of the matter is that one cannot justify this state of affairs, while remaining logically consistent and free of obvious absurdity. Species membership, as I have argued, is an arbitrary metric in assigning moral or legal value, and I take it that any legal system purporting to have a basic rational standing would not make such weak appeals to justify the status quo. With the ADA, Congress did not feel the need to articulate the value of disabled people — it assumed that value, and sought to protect it from abuse and discrimination. 42 Under the Logical Closure Principle, if Congress and the US legal system as a whole are not to fall into unethical self-contradiction, a similar extension of value must be made for certain non-human animals whose moral value is comparable to that of mentally disabled human beings. 43 In the 39. 40. 41. 42. 43.

Kittay, supra 558. § 12101 Youngberg, 644 F.2d at 307. Kittay, supra 565. Luper, supra.

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ADA, Congress condemns discrimination against disabled persons based on their being “persons” or “individuals”. 44 Any coherent definition of personhood decided by Congress or ruled by the Supreme Court, even if formulated very narrowly, would necessarily include many species of nonhuman animals if mentally disabled humans are to remain legal ‘persons’.

VI. PROPOSAL OF SENTIENCE AS A CONSISTENT AND INTUITIVE BASIS FOR LEGAL CONSIDERATIONS As said in the previous section, the argument against legal inconsistencies in regards to animals and mentally disabled humans stands on its own without demonstrating exactly what it is that gives mentally disabled humans their moral and legal value, as the assumption of that value is explicitly shared by the US legal system. However, I will make a proposal that explains why it is that mentally disabled humans retain moral value despite their potentially lacking rationality or sophisticated intelligence. It is that their value lies in their sentience: in their capacity to inhabit rich phenomenological states or to be conscious of significant states of feeling. I take this proposition as highly intuitive, especially when considered by example. Imagine that an archer decides to take a number of mentally disabled humans, and use them as moving targets for his archery practice with barbed arrows. I take it as entirely intuitive that this act by the archer is wrong. With this sensible condemnation in mind, we may ask what it is about this act that makes it wrong, precisely? The answer is simple and unmysterious: it is the cruelty of the act which makes it wrong; that the archer deliberately and knowing is causing entirely avoidable suffering in other conscious beings for trivial ends. What it is that gives a being the capacity to suffer is their phenomenological consciousness or sentience — suffering itself is a phenomenological state. This principle based on sentience explains many of our intuitive notions. For example, we value conscious mentally disabled humans. However, we consider those with a permanent loss of conscious potential, in other words those who are brain dead, as effectively having lost their moral value, being no more sentient than a vegetable. That many animals besides human beings are able to suffer and feel pain is scientifically established. 45,46 As such, if it is indeed the suffering of the 44. 45.

§ 12112 Patrick Bateson, Assessment of Pain in Animals, 827 -839, Animal Behaviour 42.5

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abused humans in the archery scenario that makes it wrong, then it should be equally wrong for any situation involving nonhuman animals with similar capacities to suffer. This principle would also account for the fact why we generally don’t consider it a grave moral trespass to kill animals clearly lacking sentience, such as sponges and corals. As such, consistent application of the ethical principle based on sentience extends across species boundaries according to phenomenological capacities. If this principle is taken as the legal basis for convicting the archer for assault and abuse against the human beings, the same legal basis would serve to convict the archer if the targets were another type of animal with similar sentience capacities. Sentience could serve as a valid metric for legal considerations that remains consistent with the intuitive and legal value of mentally disabled humans, and would extend legal protections according to sentience in nonhuman animals.

(1991) 46.

Singer, supra at 14-15.

INTELLECTUAL PROPERTY AND INTERNATIONAL PIRACY: TWO IP ISSUES IN THE TRANS-PACIFIC PARTNERSHIP Yoorian Shin*

ABSTRACT Recently signed by trade representatives but not yet ratified by the legislatures of the eleven other participating nations or the United States Congress, the proposed Trans-Pacific Partnership (TPP) has been touted as strengthening international intellectual property laws and providing new legal protections and anti-piracy tools for copyrighted digital material in most of the greater Pacific Rim. In its ambitious scale and precedent-setting globalism, the new legal framework proposed in the TPP represents a significant restructuring of international law governing trans-national trade. Proponents of the TPP promise robust and financially attractive new international legal protections for holders of intellectual property (IP), creative intellectual content ranging from medical and scientific patents to copyrights and trademarks for entertainment products such as music, film, and videogames. The focus of this discussion is on the legal issues at the heart of the proposed treaty, especially the new IP and piracy protections for entertainment

*

Yoorian S hin is a recent graduate of University of California, Los Angeles (September 2015) with a B.A. in M usic, Public Policy and M usic Industry. Having performed in as a featured piano soloist since the age of 7, she is dedicated to music and committed to protecting artists' rights in the digital age. To that end, Yoorian plans to study law and pursue a career as a music attorney. Editor: Kevin El Khoury is a third year psychology major and education studies minor at UCLA. He plans on attending law school after graduation.

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products in a globalized, digitized media landscape. This analysis addresses these salient controversies and an overarching procedural concern—that is, until recently, the non-transparency of the TPP—that have triggered speculation regarding the treaty’s treatment of democratic due process. As the specific provisions of the TPP, which were previously undisclosed, come to light, it is imperative to ask if the proposed treaty meets a key criterion: Does it, indeed, strengthen IP and copyright protections across -theboard in the media and entertainment industries, or do the proposed changes merely benefit their top executives? The rhetoric of the relevant provisions suggests that it, in fact, does not.

I. INTRODUCTION: POLITICAL BACKGROUND AND TIMING Widely considered part of the Obama Administration’s announced “pivot to Asia,” the Trans-Pacific Partnership (TPP) has officially been in the works since November 2009, when the President announced the United States’ support of the treaty. 1 If approved by the United States Congress, the TPP would govern nearly 40 percent of international commerce. 2 Trade among the twelve Pacific Rim nations who are signators to the accord (Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam) totals more than $1.7 trillion—a number equivalent to 10 percent of America’s gross domestic product (GDP). 3 Though the actual text of the treaty has remained largely undisclosed, the United States government’s official website does make the overall case for the TPP: “Nearly 40 million American jobs are directly or indirectly attributable to [intellectual property or] ‘IP-intensive’ industries . . . and these industries drive approximately 60 percent of [the United States’] merchandise exports.” 4 If approved as written in early leaked drafts, the TPP would also set new legal standards and international dispute resolution—precedents that could

1. Office of the United States T rade Representative, Overview of the Trans-Pacific Partnership, https://ustr.gov/tpp/overview-of-the-TPP. 2. Jonathan Weisman, Trans-Pacific Partnership Session Ends with Heels Dug In , NY T imes (Aug. 3, 2015), htt p://www.nytimes.com/2015/08/04/business/international/trans-pacificpartnership-session-ends-with-heels-dug-in.html. 3. A Battle Rages over the TPP to Rewrite Global Rules, Knowledge at Wharton (May 18, 2015), http://knowledge.wharton.upenn.edu/article/wh y-the-trans-pacific-partnership-is-a-battleto-re-write-global-economic-rules. 4. Office of the United States T rade Representative, Trans-Pacific Partnership: Summary of U.S. Objectives, https://ustr.gov/tpp/Summary-of-US-objectives.

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determine the course of international trade and trade law for years to come. In particular, proposed new supra-national tribunals and legal frameworks would apply familiar elements of American jurisprudence from tort and copyright law and apply them on an unprecedented scale, thus standardizing American-style legal protocols and IP protections across much of the world. The proposed duration of international copyrights would reportedly be based on the current American system that enforces copyrights for seventy years. 5 By creating a critical mass of countries in the Asia-Pacific region who accept American legal principles and standards governing IP, proponents clearly hope to define the shape of the digital entertainment and information industries of the twenty-first century. Moreover, the TPP is widely viewed as the template for a similar agreement with the European Union (EU), the Transatlantic Trade and Investment Partnership (TTIP). The United States hopes to negotiate with the EU in coming years. 6 II. PIRACY IN THE PACIFIC: A MULT I-BILLION DOLLAR PROBLEM “The pirate marketplace currently far dwarfs the legal marketplace.” -Recording Industry Association of America (RIAA) One of the purported benefits of the TPP to the media and arts communities is its supporters’ assertion that it will give international authorities much-needed new tools to address international piracy of digitally encoded IP. The current and common modes of media (film, television, and music) are included in this rubric. Now that the full text of the proposed treaty is public, the questions are (1) whether its written provisions support that claim and (2) if so, which parties, if any, stand to benefit from its ratification—other than the rights-holders (producers and corporate executives). In other words, will thes e new protections also serve the financial interests and artistic rights of the broader creative community (writers and performers)? The burgeoning trends of globalization, digital entertainment media, and Internet usage drive and shape the modern piracy of intellectual copyrights in 5. Don Lee, Hollywood Joins Push for Obama’s Trans-Pacific Partnership Trade Deal, LA T imes (Apr. 6, 2015), http://www.latimes.com/business/la-fi-trade-pact-hollywood-20150407story.html#page=1. 6. David S. Grewal, Put Trade on the Right Track—Not the Fast Track, Huffington Post (May 11, 2015), http://www.huffingtonpost.com/david-singh-grewal/tpp-fast-trackauthority_b_7260650.html.

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the music, film, and videogame industries. In a 2007 policy paper on the subject, the Institute for Policy Innovation (IPI) projected that “copyright piracy” from sound recordings, motion pictures, video games, and business and entertainment software cost the American economy an aggregate $58.0 billion per year. 7 More than $16 billion of this total comes in the form of reduced earnings for American workers. 8 This, in turn, translates to more than $2.6 billion in reduced tax revenue and increased annual costs for federal, state, and local governments. 9 The figures for the most pirated entertainment and media products, namely music, film, and video games, are eye-opening. Music is far and away the sector of the media and entertainment industry most dramatically impacted by international and online piracy. According to the Recording Industry Association of America (RIAA), “the pirate marketplace currently far dwarfs the legal marketplace.” 10 By some estimates, only a bit more than one-third (37 percent) of music acquired by American consumers is remunerated. 11 The RIAA characterizes both the volume of pirated music and the resulting drop in revenues as “staggering,” and notes that digital sales, while on the rise, are not making up the difference. 12 Music sales in the United States have plummeted by nearly half (47 percent), from $14.6 billion to $7.7 billion, since Napster, the first major filesharing site, emerged in 1999. 13 The volume of pirated works worldwide is enormous: From 2004 through 2009 alone, approximately 30 billion songs were illegally downloaded on file-sharing networks. 14 Other statistics confirm the scale of the problem. Frontier Economics estimated that Internet users in the United States consume between $7 and $20 billion worth of digitally pirated recorded music each year. 15 While the digital revenues have indeed grown by 1000 percent from 2004 to 2010, digital music theft has been a major driver of the global market decline by about 31 percent

7. Stephen E. Siwek, The True Cost of Copyright Industry Piracy to the US Economy, Institute for Policy Innovation, (2007). 8. Id. 9. Id. 10. Q&A Resources, Recording Industry Association of America, http://www.riaa.com/faq.php. 11. Id. 12. Id. 13. Id. (see note 7). 14. Id. 15. Id. (see note 10).

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during the same period. 16 Peer-to-peer sites defined the problem a decade ago, but other forms of digital theft have since emerged as even more serious (and anonymous) threats, particularly “cloud” storage lockers used to distribute copyrighted music. Greater flow of revenue to record companies from international digital and streaming media can certainly provide a basis for a “virtuous cycle” in which these companies, having suffered major reversals over the past decade, are again financially strong enough to more fully nurture artists and support their rosters on a global scale. In 2013, the last year for which complete figures are available, the AsiaPacific region accounted for $11.1 billion in box office receipts, surpassing the combined territories of Europe, the Middle East, and Africa for the first time to became the top region in the international box office. 17 However, about onethird of the Asia-Pacific region’s total ($3.6 billion) came from mainland China, which is no longer a prospective signator of the TPP. 18 Total revenues for the movie business worldwide are projected to come in at nearly $40 billion in 2015. 19 Credible projections for losses to piracy are provided by the Motion Picture Association of America (MPAA), which estimates that $6.1 billion (about 16 percent) of annual film revenues are lost to international digital piracy. 20 The problem is thought to be particularly acute in the Asia-Pacific region, where losses as a percentage of box office are estimated to be significantly higher than the worldwide average. 21 The Entertainment Software Association of Canada (ESAC) estimates that losses to piracy are equal to one-fifth of the total video game market—currently as much as $3.5 billion a year in North America alone. 22 Worldwide, the portable video game market loses an estimated $8.1 billion a year to digital piracy, more than twice the previous figure. 23 Projecting lost profits based on sales that were never made is an inherently 16. Id. 17. Theatrical Market Statistics, Motion Picture Association of America, (2013). 18. Id. 19. Carl Bialik, Putting a Price Tag on Film Piracy (Apr. 5, 2013), http://blogs.wsj.com/numbers/putting-a-price-tag-on-film-piracy-1228. 20. Id. 21. Id. (see note 17). 22. Joseph De Weck, Free Online Games Sink Pirates for Emerging -Market Growth, Bloomberg Business Week (Aug. 28, 2012), http://www.bloomberg.com/news/articles/2012-0827/free-online-games-sink-pirates-to-unlock-emerging-market-growth. 23. Id.

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tricky process. Not every pirated (or “free”) download of movies, music, or video games would have been a full-price purchase of digital entertainment, even if the cheaper pirated versions had never been available. Nonetheless, the estimates of dominant trade groups for the three major types of digital content (music, film, and video games) make it clear that the current scope of the problem is enormous, measured in tens of billions of dollars. The digital entertainment industry has a strong financial incentive to tighten up on international piracy, which it can achieve through legal means.

IIIA . CONTROVERSIES: A CULT OF SECRECY? According to the official web site of the Office of the United States Trade Representative (USTR), the United States’ goals on competition policy and Special Operations Equipment (SOEs) have been “grounded in long-standing principles of fair competition . . . and transparency.”24 Despite this assertion, the draft text has remained highly classified until the eleventh hour. For years, the only sections of the seventy-seven page, twenty-nine-chapter, thirtythousand-word document available to the public were those exposed in WikiLeaks. 25 Critics found the secrecy surrounding the negotiated text, including elaborate and restrictive protocols for its review even by members of Congress , to be problematic and disturbing, particularly in the context of the similar controversies over increased secrecy in other areas of government and economics—secret National Security Agency (NSA) surveillance, secret NSA courts, secret mega-donors for political campaigns, and the size and workings of “dark money” hedge funds and “shadow banks.”26 During the course of the protracted negotiations over the text of the TPP, federal trade negotiators defended the secret proceedings, saying they did not want to “get pressured by domestic constituencies,” be they interest groups or voters. 27 Yale Law School’s Media Freedom and Information Access Clinic is currently challenging this sort of secrecy that has become more common, especially after the federal government was forced to turn over documents in a 24. Id. (see note 4). 25. Secret Trans-Pacific Partnership Agreement—IP Chapter, Wikileaks (Oct. 16, 2014), https://wikileaks.org/tpp-ip2/pressrelease. 26. Charlie Savage, NSA Will Not Be Allowed to Keep Old Phone Records, NY T imes (Jul. 27, 2015), http://www.nytimes.com/2015/07/28/us/politics/nsa-will-not-be-allowed-to-keep-oldphone-records.html?ref=topics. 27. Id.

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2002 court ruling. 28 IIIB. CONTROVERSIES: A GUARANT EE OF CORPORAT E PROFIT S? Aside from the secrecy surrounding the actual text, the most controvers ial legal proposals in the leaked sections of the TPP concern the creation of a private arbitration system (the “investor-state dispute settlement” or ISDS) to resolve disputes between multi-national corporations and Asian-Pacific nations. 29 Dated January 2014, the authenticity of the text of this chapter was verified by Ralph Nader’s Public Citizen organization that claims to have had a source present during secret negotiations. 30 The document reportedly discuss es mechanisms enabling trans-national corporations to sue the countries where they have operations without the involvement of local or national courts. Critics say these supra-national tribunals and their enforceable judgments represent a challenge to the national sovereignty of participating nations. 31 Critics also contend that the proposed system of internationally binding arbitration would effectively include profit guarantees for international corporations. 32

IIIC. CONTROVERSIES: HEALTH, ENVIRONMENTAL, AND LABOR PROTECTIONS AT RISK? Corporations would be entitled to sue any nation where they have overseas operations for passing or enforcing laws which might limit their expected or projected future profits. Because grounds for legal action reportedly include changes in “environmental, health, [labor] or other regulatory [statutes],” these provisions have been subjected to intense scrutiny. 33 28. Id. 29. Greg Sargent, Elizabeth Warren Fires Back at Obama: Here’s What They’re Really Fighting About, Washington Post (May 11, 2015), https://www.washingtonpost.com/blogs/p lum line/wp/2015/05/11/elizabeth-warren-fires-back-at-obama-heres-what-theyre-really-fightingabout. 30. Leaked TPP Investment Chapter: Corporations can sue states in private courts, Russia T oday (Mar. 30, 2015), http://www.rt.com/usa/245093 -tpp-corporations-suing-states. 31. Byron T au, Obama Pushes Back Against Fellow Democrats Who Oppose Trade Pact, Wall Street Journal (Apr. 21, 2015), available at http://www.wsj.com/articles/obama-pushes-back against-fellow-democrats-who-oppose-trade-pact-1429664685. 32. Id. 33. Id.

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Senators Elizabeth Warren, Bernie Sanders, and Sherrod Brown are among the many progressive Democrats opposing the TPP, saying that it undercuts American and international labor laws, environmental protection, and democratic governance. 34 Some go one step further, saying that rather than governing trade, the TPP is a political and economic power grab that seeks to “govern through trade.”35 Available only to qualifying international corporations, the proposed international tribunals for resolution of commercial states between those multinational businesses and participating nations would also elevate the already controversial concept of “corporate citizenship” to a kind of supra-national, undemocratic, “super” citizenship. That is, ordinary citizens and smaller businesses of countries that sign the agreement would not have recourse to these international courts.

IV. COMPETING INTERESTS IN THE TPP: WHOSE INTELLECTUAL RIGHTS ARE BEING PROTECTED? The first TPP provision dealing explicitly with creative copyrights, rights holders, and corporate trademarks occurs in Article 18.77 (“Criminal Procedures and Penalties”) of the now-public text of the proposed treaty: Each Party shall provide for criminal procedures and penalties to be applied . . .in cases of willful trademark counterfeiting or copyright or related rights piracy, on a commercial scale. In respect of willful copyright or related rights piracy, ‘on a commercial scale’ includes at least: (a) acts carried out for commercial advantage or financial gain; and (b) significant acts, not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights holder in relation to the marketplace. 36 Proponents of the TPP promise that it will provide “enhanced protections” for holders of creative copyrights in the entertainment industry—a category that includes both executives (music publishers, record executives, film producers), 34. Eric Bradner and Deirdre Walsh, Democrats Reject Obama on Trade, Cable News Network (Jun. 13, 2015), http://www.cnn.com/2015/06/12/politics/white-house-tpp-trade-dealcongress. 35. David S. Grewal, The President Wants to ‘Fast Track’ Two Massive Trade Deals. Congress Should Slow Him Down, LA T imes (Mar. 26, 2015), http://www.latimes.com/opinion/op-ed/la-oe-grewal-congress-should-not-okay-fast-track20150327-story.html. 36. Id. (see note 1).

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and performing artists. The latter group mostly consists of prominent writers, actors, and musicians already powerful enough to assert copyright control over their works. There are often competing interests between these two parties of the creative community (what one might call “management” and “labor”). The principal problem is that one party’s “protection” can be another’s “repression”37 That is, what empowers a copyright holder such as a producer or music company can sometimes limit the career options and influence of the writer or performing artist who is arguably responsible for having made the material famous and thus, lucrative. A dissection of the piracy provisions in Article 18.77 suggests that when it comes to creative copyrights, and arguably artistic rights, the interests of media management are better served than those of the artistic community. Specifically, the text’s insistence on using the existing framework of copyrights and trademarks—issues and legal tools most closely associated with corporate interests—while remaining silent on the related issue of an artist’s creative autonomy suggests that the interests of management, rather than talent, are prioritized for protection. Proponents of a “free” Internet contend that stricter international enforcement of creative copyrights would have a similarly chilling effect on the limited “fair use” of video and music clips on the Web. 38 Another leaked section, Article QQ.G.10, deals with liability for companies that make anti-encryption technologies favored by pirates. It includes objections from countries (namely Canada and Chile) that seek to temper the proposed sweeping prohibitions. 39 The leaked notes do not stipulate the reasons for these countries’ opposition, but copper is a likely motive. Copper is the leading national export of the aforementioned countries and, notably, is used in the manufacture of myriad electronic equipment. Notably, electronic equipment is also Canada’s fifth largest export, constituting $13.6 billion in annual trade. 40 It is fair to say that the Canadian and Chilean economies could be adversely affected by any imposed restrictions on the

37. Jeremy Malcolm, Nothing Is Agreed Yet—We Can Still Stop the TPP’s Copyright Trap, Electronic Frontier Foundation (Sep. 8, 2015), https://www.eff.org/deeplinks/2015/08/nothingagreed-yet-we-can-still-stop-tpps-copyright-trap. 38. Id. 39. Id. (see note 25). 40. Daniel Workman, Canada’s Top 10 Exports, World’s T op Exports (Feb. 19, 2015) http://www.worldstopexports.com/canadas-top-exports/2502.

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manufacture of digital devices. 41 These sorts of competing interests are particularly apparent in the leaked drafts of the chapter on IP (one of twenty-nine total chapters) that contain negotiators’ notes on status of the then-secret negotiations. 42 The objections of individual countries such as New Zealand, Canada, and Vietnam, are noted. New Zealand, in particular, is singled out for its opposition to greater copyright control of musical works by performing artists (as opposed to authors or producers) – an understandable position for a nation that, like its neighbor, Australia, boasts a thriving recording and live-music industry. 43 Framed as a rebalancing of trade between the United States and its Pacific Rim trading partners, the TPP contains passages that might alter the current balance of power between the top producers and management of entertainment companies and the musicians, writers, and filmmakers who create the underlying content. The New Zealand trade representatives’ objections to rhetoric that fails to extend copyright protections to performers is an example of the back-and-forth of the current negotiations, as well as the power dynamics at play between stakeholders within creative industries. Asserting American-style creative copyrights in the Pacific Rim is also proving problematic. According to the most recent reports, half of the TPP’s proposed members now reject the treaty’s original proposal to extend creative copyrights by twenty years across the Asia-Pacific region44 To contextualize, the proposed American standard is seventy years, whereas fifty years is the norm established by the Berne Convention in most of the international arena. 45

VA . INTERNATIONAL & DOMESTIC POLITICAL CONSIDERATIONS: PIVOTING TO ASIA AND COUNTERING CHINA An unstated but crucial objective of the TPP is to counter the rising regional influence of China that, at one point, was being courted to join the trade partnership. 46 The underlying strategy appears to be to achieve a kind of critical mass of countries willing to play by what are essentially American rules 41. Chile Trade Summary 2013, World Integrated T rade Solution, http://wits.worldbank.org/CountryProfile/Country/CHL/Year/2013/Summarytext. 42. Id. 43. Steven Johnson, The Creative Apocalypse That Wasn’t, NY T imes (Aug. 19, 2015), http://www.nytimes.com/2015/08/23/magazine/the-creative-apocalypse-that-wasnt.html?_r=0. 44. Id. (see note 34). 45. Id. (see note 5). 46. Id. (cited in note 35).

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for creative and scientific copyrights. Just as broad acceptance of a currency largely determines its value, broad international acceptance of American-style rules and regulations regarding the rights of copyright holders can influence other nations to accept those international legal standards and protocols. Consensus among a dozen nations on issues such as copyright law (with its entrenched competing interests) is inherently difficult to achieve. Now that the full, final text of the TPP is available to the American public, it can judge if negotiators have been successful in their efforts to standardize creative copyrights and intellectual property protections across the Asia-Pacific region, and what the long term ramifications of such an agreement could be. The final negotiations concerning the TPP are taking place in the context of another important international initiative among Asia-Pacific trading partners: a proposed new “Bilateral Investment Treaty” (BIT) between China and the United States. 47 Initial Chinese and American negotiating positions, including American requests for greater access to Chinese markets for financ ial firms, have been shared in advance of President Xi Jinping’s visit to the White House in late September 2015. 48 The two negotiations are occurring on parallel tracks, reflecting China’s status as both a key economic partner and leading economic rival of the United States. VB. INTERNATIONAL & DOMESTIC POLITICAL CONSIDERATIONS:

DOMESTIC POLITICAL CONSIDERATIONS

Twenty-one years after the North American Free Trade Agreement (NAFTA), trade pacts are viewed with increasing skepticism by the American public, if not by the nation’s economic elites. 49 Because of the widespread perception that NAFTA cost the American economy millions of jobs, proponents of the TPP are trying to position the treaty as a kind of jobs bill— ”good for the United States” and a way of rebuilding the nation’s middle class. 50 The figures used to support this argument, however, are not particularly persuasive. The TPP is projected to boost annual economic output by less than 47. US, China Exchange New Investment Treaty Offers Ahead of Xi Visit, NY T imes (Sept. 15, 2015), http://www.nytimes.com/reuters/2015/09/15/technology/15reuters-usa-chinainvestment.html?_r=0. 48. Id. 49. Id. (see note 34). 50. Roger Altman, Why the Trans-Pacific Partnership Matters, NY T imes (Apr. 3, 2015), http://www.nytimes.com/2015/04/04/opinion/why -the-trans-pacific-partnershipmatters.html?_r=0.

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0.5 percent by 2025. 51 Thus, proponents are faced with “marketing” challenges : advertising the TPP and spinning NAFTA’s alleged shortcomings to convince skeptics that the interests of America’s economic elites do not supersede those of the middle class. Because of the current unpopularity of the NAFTA treaty passed in the 1990s, and the current election cycle’s emphasis on class divisions (“winners” and “losers”) in the contemporary American economy, the treaty’s fate remains uncertain. Despite a Republican-dominated Congress and President Obama’s strong support for the TPP, moreover, not a single major presidential candidate of the Republican or Democratic Party has spoken in favor of the treaty. 52 On the contrary, both parties’ leading candidates, Donald Trump and Bernie Sanders, are vehemently against it 53 Even Hillary Clinton, a longtime proponent of the treaty, has recently withdrawn her support. 54 One could say that the TPP has “bipartisan disapproval.” VI. CONCLUSION The TPP will soon come before Congress as a “simple” up-or-down vote. Ambitious in its scope, with important economic implications for the nation, the TPP remains contentious, particularly for procedural reasons: Should the rulings of any international court be allowed to transcend American jurisprudence? Is a secret document, the product of behind-closed-doors negotiations, the best way to proceed with legislation in a democracy? Certainly, these have been pressing concerns during the treaty’s long gestation. Specifics on other important issues, including details about new enforcement mechanisms for battling international piracy of digital products, remain outstanding, and are not included in the final text. On the other hand, 55

51. Id. (see note 5). 52. Paul Krugman, TPP Take Two, NY T imes (Oct. 6, 2015), http://krugman.blogs.nytimes.com/2015/10/06/tpp-take-two/?_r=0. 53. Noam Scheiber, Unions Lean Democratic, but Donald Trump Gets Members’ Attention, NY T imes (Jan. 29, 2016), http://www.nytimes.com/2016/01/30/business/donald-trumpunions.html. 54. Michael Shear and Amy Chozick, Trade Deal Comments Put Hillary Clinton at Odds with Her Former Boss, NY T imes (June 17, 2015), http://www.nytimes.com/2015/06/18/us/politics/hillary-clinton-walks-the-line-betweenpresidential-ally-and-aspirant.html. 55. Into the Home Stretch, T he Economist (Jul. 25, 2015), http://www.economist.com/news/finance-and-economics/21659716-all-its-flaws-biggest-tradedeal-years-good-news-world.

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the actual, stated goals of the proposed treaty hold many legitimate and significant benefits for creators and holders of creative intellectual property in the music, film, and video game industries. At stake is nothing less than standardizing American business and legal practices across nearly half the world. In an age of rampant piracy, major entertainment companies are likely to benefit from enhanced copyright protections in the international arena; the hope now is that independent musicians, actors, and writers will benefit too.