Carceral Socialization as Voter Suppression

In an era of mass incarceration, many people are socialized through interactions with the carceral state. These interactions are powerful learning experiences, and by design, they are contrary to democratic citizenship. Citizenship is about belonging to a community of equals, being entitled to mutual respect and concern. Criminal punishment deliberately harms, subordinates, and stigmatizes. Encounters with the carceral system are powerful experiences of anti-democratic socialization, and they impact peoples’ sense of citizenship and trust in government. Accordingly, a large body of social science research shows that eligible voters who have carceral contact are significantly less likely to vote or to participate in politics. Hence, the carceral system’s impact on political participation goes well beyond those who are formally disenfranchised due to convictions. It also suppresses participation among the millions of legally eligible voters who have not been formally disenfranchised—people who have had more fleeting encounters with law enforcement or vicarious interactions with the carceral system. This Article considers the implications of these findings from the perspective of voting rights law and the constitutional values underlying it. In a moment when voting rights are under siege, voting rights advocates are in a heated discussion about how our federal and state constitutions protect ideals of democratic citizenship and political equality. This discussion has largely (and for good reason) focused on how the law should address what I call “de jure” suppression: tangible election laws and policies that impose legal barriers to voting, or dilute voting power. Eliminating these formal barriers to voting is vital. But, I argue, fully realizing the constitutional values underlying voting rights will also require also addressing what I call “de facto” suppression, or suppression through socialization. This occurs not through formal legal restrictions on voting, but when state institutions like the carceral system systematically socialize citizens in a manner that is incompatible with democratic citizenship. I show how de facto suppression threatens the constitutional interests protected by the right to vote just like de jure suppression does. In short, by systematically socializing people in a manner that is fundamentally incompatible with democratic citizenship, the state can effectively strip a citizen of much of the instrumental and intrinsic value conferred by the right to vote. Those who are concerned about advancing and protecting voting rights should understand the carceral system’s anti-democratic socialization as a form of political suppression—one that should warrant constitutional scrutiny for the same reasons that de jure suppression should warrant scrutiny

Institutionalized Ostracism

Belonging is a fundamental need, like food or water. Hundreds of social psychology studies find that people who are ostracized (excluded, rejected, or ignored) experience severe pain and suffering. Ostracism threatens basic needs, triggers the same neurocognitive processing system as physical pain, and impairs functioning. Furthermore, ostracized people may cope in ways that beget “deviant” labeling and further ostracism. Belonging and ostracism are prevalent themes in social psychology research, but these constructs have received relatively little attention in law. This Article begins to explore the implications of this research for law. I make three contributions: First, I name and describe the phenomenon of “institutionalized ostracism”: When government institutions ostracize people in ways that threaten their sense of belonging. This institutionalized ostracism is mostly lawful under current anti-discrimination law. Second, I draw from social psychology literature to explain why institutionalized ostracism is so harmful—in some ways comparable to physical violence. Third, I identify and critique several ways in which current jurisprudence supports and facilitates institutionalized ostracism. In discussing these, I make some preliminary suggestions as to how our jurisprudence ought to attend to the harm of ostracism

Religious Objections to the Death Penalty After \u3ci\u3eHobby Lobby\u3c/i\u3e

In Glossip v. Gross, the Supreme Court held that in order to prevail on the claim that a method of execution is cruel and unusual punishment, petitioners must prove that there is an available alternative that entails a lesser risk of pain. In this case, the state was using a method that is allegedly more painful than drugs used in the past because manufacturers of the preferable drugs objected to selling them for the purpose of executions. These manufacturers are not alone in their desire to boycott the death penalty. Many religious groups have declared opposition to the death penalty, and jurors regularly report that their religious beliefs prevent them from imposing the death penalty. Simultaneously, the law has recently become friendlier to religious objections to government policies. In Burwell v. Hobby Lobby, the Court recognized a new kind of religious freedom claim—which has been described as a “complicity-based consciousness claim” —in which a religious believer objects to a law that arguably makes him or her help another person commit an action that he or she believes is a sin. Hobby Lobby struck down a law requiring employers to cover contraceptives in their employees’ health insurance, holding that religious employers who oppose contraception should not be required to indirectly subsidize its use. Following Hobby Lobby, religious nonprofits have challenged the requirement that they file a form declaring their religious objection to contraceptives, because this obligates their insurance company to cover them, and thereby facilitates their employees’ use of contraceptives. In this short essay, I consider how the logic of the complicity-based claims in Hobby Lobby and subsequent nonprofit cases could be applied to challenge the common policy of “death qualifying” jurors in capital punishment cases— removing any juror who reports conscientious opposition to the death penalty. I argue that just like religious nonprofits that object to reporting a religious objection to contraceptives on the grounds that it enables someone else to provide contraceptives, a juror might object to reporting a religious objection to the death penalty on the grounds that it will enable someone else to replace them who is more likely to impose the death penalty

Socioeconomic Status Discrimination

This Article makes the case for protecting socioeconomic status (SES) under discrimination statutes that govern employment, housing, education, voting, public accommodations, and credit/lending. While others have argued that poverty should be a protected class under the Fourteenth Amendment, the courts have rejected this idea. The possibility of protecting SES under discrimination statutes has received little consideration. I argue that this idea deserves more serious attention. I advance four arguments in favor of adding SES to the list of protected traits. Two moral, one political, and one legal. First and most straightforward, the values animating discrimination law apply to poverty: Existing discrimination laws protect traits that are subject to pervasive and illegitimate social bias. They cover both immutable and mutable traits. The logic animating these laws applies to poverty, regardless of whether a person was born poor or falls into poverty later in life. Second, due to the association between race and poverty, SES-based discrimination reinforces and perpetuates racial inequality. A comprehensive strategy for addressing racial discrimination must also address SES-based discrimination. The third argument is political: Many policies that have an adverse racial impact have an adverse impact on poor people of all races. e.g., voter ID laws or zoning laws restricting multi-unit housing. Framing disparate-impact claims in terms of SES would highlight the extent that lower-SES people of all races share common experiences of marginalization. This might be a step toward building a multiracial coalition focused on economic inequality-a longstanding goal of many progressives. The fourth argument is legal: Some have argued that racial disparate impact law should trigger scrutiny under the Fourteenth Amendment because it requires racially motivated decision making. Because poverty is not a suspect class under the Fourteenth Amendment, disparate-impact provisions targeting socioeconomic disparities would not raise the same constitutional concern. I explain how protections against SES discrimination could be administered, as a practical matter. Prohibiting SES discrimination would not be as impractical as it might initially seem. Indeed, the practical questions associated with protecting SES are not really different from those associated with protecting race, disability, age, and other traits

The Nixon Sabotage : The Political Origins of the Equal Protection Challenge to the Voting Rights Act

Critics of the Voting Rights Act argue that the anti-discrimination law requires states to engage in unconstitutional discrimination, as state decisionmakers must be conscious of race in order to ensure that voting policies do not weaken minority representation. This argument relies on the idea that subjective racial motivation is the essence of unconstitutional discrimination (even if benevolent, or to promote racial inclusion). The conventional understanding among constitutional scholars is that this “search for the bigoted decisionmaker” developed in employment and housing discrimination decisions between 1976 and 1979. Previous accounts have not recognized the role that the 1971 school desegregation decision of Swann v. Charlotte-Mecklenburg Board of Education played in laying the foundations for this definition of unconstitutional discrimination. Swann is important because it vividly illustrates how the elected branches gave traction to the present definition of unconstitutional discrimination. The justices’ archives reveal the Swann Court’s uncertainty about focusing on the racial motives of present authorities as the basis for finding unconstitutional discrimination, and that a narrow majority preferred a draft of the opinion that eschewed this approach. Yet all justices acquiesced to Chief Justice Burger’s self-assigned opinion, which emphasized subjective racial motives as the core of unconstitutional discrimination, and as Justice Douglas described it, “wr[ote] President Nixon’s view . . . into the law.” The justices did so because they perceived unanimity as necessary for compliance in the face of both political branches objecting to judicial authority in the area of school desegregation. Swann demonstrates how the view of unconstitutional discrimination that centers on racial motives first gained traction out of deference to political branches calling for limits on judicial policymaking. This concern that animated defining unconstitutional discrimination in terms of racial motives—judges making social policy under the guise of constitutional remedies—does not apply in the current challenge to the Voting Rights Act, when the Court is asked to extend the racial-motives limitation, forged in deference to elected officials, to restrict the ways that elected officials have chosen to address discrimination

Carceral Socialization as Voter Suppression

In an era of mass incarceration, many people are socialized through interactions with the carceral state. These interactions are poweful learning experiences, and by design, they are contrary to democratic citizenship. Citizenship is about belonging to a community of equals, being entitled to mutual respect and concern. Criminal punishment deliberately harms, subordinates, and stigmatizes. Encounters with the carceral system are powerful experiences of anti-democratic socialization, and they impact peoples\u27 sense of citizenship and trust in government. Accordingly, a large body of social science research shows that eligible voters who have carceral contact are significantly less likely to vote or to participate in politics. Hence, the carceral system\u27s impact on political participation goes well beyond those who are formally disenfranchised due to convictions. It also suppresses participation among the millions of legally eligible voters who have not been formally disenfranchised-people who have had more fleeting encounters with law enforcement or vicarious interactions with the carceral system. This Article considers the implications of these findings from the perspective of voting rights law and the constitutional values underlying it. In a moment when voting rights are under siege, voting rights advocates are in a heated discussion about how our federal and state constitutions protect ideals of democratic citizenship and political equality. This discussion has largely (and for good reason) focused on how the law should address what I call de jure suppression: tangible election laws and policies that impose legal barriers to voting, or dilute voting power. Eliminating these formal barriers to voting is vital. But, I argue, fully realizing the constitutional values underlying voting rights will also require also addressing what I call de facto suppression, or suppression through socialization. This occurs not through formal legal restrictions on voting, but when state institutions like the carceral system systematically socialize citizens in a manner that is incompatible with democratic citizenship. I show how de facto suppression threatens the constitutional interests protected by the right to vote just like de jure suppression does. In short, by systematically socializing people in a manner that is fundamentally incompatible with democratic citizenship, the state can effectively strip a citizen of much of the instrumental and intrinsic value conferred by the right to vote. Those who are concerned about advancing and protecting voting rights should understand the carceral system\u27s anti-democratic socialization as a form of political suppression-one that should warrant constitutional scrutiny for the same reasons that de jure suppression should warrant scrutiny

What Would Congress Want? If We Want to Know, Why Not Ask?

Judges often disagree about which interpretation of a statute is most faithful to \u27legislative intent.\u27 If judges are concerned about adhering to democratic preferences when interpreting statutes, why not ask Congress what it would prefer? I propose a procedure that would enable the Court, in a case where Justices are divided over the meaning of a statute, to submit both sides\u27 reasoning to Congress, and Congress may choose to vote on its preferred of the alternative rulings the Court puts before it. Congress\u27s preferences would be evidentiary only; they would not bind the Court to make one decision or another. Insofar as the Court is concerned with avoiding a decision that Congress will overrule, this procedure could provide more reliable and direct evidence of what the contemporary Congress wants, than does postenactment legislative history, canons of construction, or other means judges use to adduce legislative intent. This procedure would enable a partnership between the Court and Congress in updating and adapting the law to ever-changing circumstances; a partnership that draws upon each branch\u27s particular competencies-Congress being democratic, the Court accounting for overarching constitutional values and ideals of predictability, consistency, and intelligibility in the law

Commercial Religious Exercise: Translating Commercial Speech Doctrine to the Free Exercise Clause

The Patient Protection and Affordable Care Act and implementing regulations require for-profit businesses with more than fifty employees to include contraceptive products in their health care coverage for employees. Throughout the country, privately held corporations and their owners challenged this requirement on the grounds that it violates the Religious Freedom Restoration Act (RFRA), which states that the government shall not “substantially burden” a religious practice unless the regulation is “the least restrictive means” of serving a “compelling governmental interest.” The employers argued that requiring them to include contraceptives in employees’ health coverage substantially burdened their religious opposition to using certain contraceptives. In Burwell v. Hobby Lobby Stores, the Supreme Court held (5–4) that the contraceptive coverage mandate imposed a substantial burden on the employers’ religious opposition to contraception, and that the coverage mandate was not the “least restrictive means” of serving the government’s interest “in guaranteeing cost-free access to the . . . contraceptive methods.” Justice Ginsburg, in dissent, argued that the mandate did not substantially burden the employers’ personal practice of opposing contraception because it did not require employers to purchase or use contraceptives themselves; using contraceptives remained the independent decision of each employee. The dissent further noted two troubling aspects of the majority’s position. First, it denies employees benefits available to most other workers, and thereby imposes the employer’s religious practice on its employees. Second, it lays the ground for employers to challenge numerous regulations that protect workers, such as nondiscrimination and minimum wage laws, which may impose requirements in tension with an employer’s personal religious practices. In this Essay, I argue that, in light of Hobby Lobby, RFRA should be amended to recognize the difference between religious practice that takes place in a personal setting and religious practice that takes place in a commercial setting, that is, during the course of a commercial employment relationship, “an area traditionally subject to government regulation.” This distinction between personal freedom and freedom when operating in the commercial sphere is far from novel. It is recognized elsewhere in constitutional law. The commercial speech doctrine, for example, applies a lesser degree of scrutiny to restrictions on “commercial speech” than to restrictions on noncommercial expression. Tighter regulation is justified in a commercial setting because commercial relationships impact the interests of third parties. This reasoning translates to religious exercise. Commercial speech is entitled to less protection because it does not further public discourse and it has the potential to deceive or mislead consumers. Religious exercise in a commercial employment setting may be entitled to less constitutional protection because it goes beyond the employer’s personal autonomy, and may burden the employees’ rights. Although employers may argue that their personal religious practices are inseparable from their commercial employment practices, commercial speech doctrine cases show that it is possible to objectively distinguish primarily commercial from primarily noncommercial settings, based on the broader purpose of the employer’s operation. Burdens on religious practice that occur during a commercial employment relationship should therefore be treated like commercial speech and subject to a lesser degree of scrutiny