Government nonendorsement

Minnesota Law Review

Volumn 98, Issue 2, 2013, Pages 648-712

  Tebbe, Nelson ^a  

^a BROOKLYN LAW SCHOOL   (United States)

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EID: 84891791137     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (160)

1. Pleasant Grove City v. Summum, 555 U.S. 460, 481 (2009) (Stevens, J., concurring) (calling the doctrine "recently minted"); id. at 485 (Souter, J., concurring in the judgment) (same).
2. For examples from deservedly prominent writers, see Joseph Blocher, Viewpoint Neutrality and Government Speech, 52 B.C. L. REV. 695, 747 (2011) (calling the Establishment Clause "the one clear limitation on government speech");
3. Steven Shiffrin, Government Speech, 27 UCLA L. REV. 565, 605 (1980) (naming the Establishment Clause as "the one provision of the Consti-tution that clearly prohibits some government speech");
4. Steven D. Smith, Why Is Government Speech Problematic? The Unnecessary Problem, the Unnoticed Problem, and the Big Problem, 87 DENV. U. L. REV. 945, 953 (2010) (calling nonestablishment "the only concrete, enforceable (albeit sporadic), constitu-tional limit on government speech").
5. Cnty. of Allegheny v. ACLU, 492 U.S. 573, 593-95 (1989);
6. Lynch v. Donnelly, 465 U.S. 668, 687-88 (1984) (O'Connor, J., concurring).
7. Allegheny, 492 U.S. at 593-94.
8. See Lathrop v. Donohue, 367 U.S. 820, 852 (1961) (Harlan, J., concur-ring) (noting the "clear distinction in the wording of the First Amendment be-tween the protections of speech and religion, only the latter providing a pro-tection against 'establishment'");
9. Abner S. Greene, Government of the Good, 53 VAND. L. REV. 1, 12 (2000) ("The Constitution forbids the establishment of re-ligion, but it does not forbid the establishment of secular conceptions of the good ."); Shiffrin, supra note 5, at 606 ("[T]here can be no room for a non-religious establishment clause.").
10. Cf. Summum, 555 U.S. at 482 (Stevens, J., concurring) (arguing that "even if the Free Speech Clause neither restricts nor protects government speech, government speakers are bound by the Constitution's other proscrip-tions, including those supplied by the Establishment and Equal Protection Clauses"). The Constitution also limits government speech explicitly in several places, including the Title of Nobility Clause and arguably the Ninth Amend-ment, which forbids "disparag[ing]" unenumerated rights. U.S. CONST. art. I, § 9, cl. 8; U.S. CONST. amend. IX.
11. This Article differs from existing work in at least three ways. First, it discusses specific substantive limits on government speech based on its con-tent, unlike scholarship on government speech that raises more general con-cerns, such as the worry that government speech will drown out private speakers. See MARK G. YUDOF, WHEN GOVERNMENT SPEAKS 3-4 (1983);
12. See, e.g., Michael C. Dorf, Same-Sex Marriage, Se-cond-Class Citizenship, and Law's Social Meanings, 97 VA. L. REV. 1267, 1267 (2011) (addressing government expression that violates equal protection and religious nonestablishment, with a focus on same-sex marriage, and explicitly bracketing broader constitutional restrictions on such speech);
13. Kamenshine R.D. The first amendment's implied political establishment clause 67 CALIF. L. REV. 1104 1104 1979.
14. Helen Norton, Campaign Speech Law with a Twist: When the Government Is the Speaker, Not the Regulator, 61 EMORY L.J. 209, 215 n.16 (2011)
15. [hereinaf-ter Norton, Campaign Speech Law] (looking solely at government electioneer-ing under the Free Speech Clause);
16. Helen Norton, The Equal Protection Impli-cations of Government's Hateful Speech, 54 WM. & MARY L. REV. 159, 162 n.4 (2012)
17. [hereinafter Norton, Government's Hateful Speech] (discussing an earli-er draft of this Article and distinguishing her project, which focuses on equal protection);
18. Shiffrin, supra note 5, at 605 n.199 (declining to analyze racist and sexist government communications). Similarly, expressive theories of law focus on two core provisions, equal protection and religious nonestablishment, probably because those works seek to establish the basic proposition that ex-pressive harms can work constitutional harm at all. See, e.g., Elizabeth S. An-derson & Richard H. Pildes, Expressive Theories of Law: A General Restate-ment, 148 U. PA. L. REV. 1503, 1531-51 (2000) (addressing only equal protection and religious nonestablishment, among rights provisions);
19. Deborah Hellman, The Expressive Dimension of Equal Protection, 85 MINN. L. REV. 1 (2000) (equal protection);
20. Richard H. Pildes & Richard G. Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483, 511-12 (1993) (equal protection and nonestablishment). Third, this Article uncovers an underlying principle of government nonendorsement for the first time, and it identifies new ramifications for debates in the areas of political morality and First Amendment theory.
21. Gonzales v. Carhart, 550 U.S. 124, 172 (2007) (Ginsburg, J., dissent-ing).
22. That last section develops an argument that I first suggested in Non-believers, 97 VA. L. REV. 1111, 1140-49 (2011).
23. Cf. RONALD DWORKIN, LAW'S EMPIRE 87-90 (1986) (describing an in-terpretive approach to legal argumentation).
24. Cf. JOHN RAWLS, A THEORY OF JUSTICE 46-53 (1972) (explaining the concept of reflective equilibrium); Hellman, supra note 10, at 6 (building on Rawls's reflective equilibrium).
25. Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009).
26. Id. The idea had been prefigured in other cases. For example, the Court here quotes Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 833 (1998).
27. See Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 598 (1998) (Scalia, J., concurring in the judgment) ("It is the very business of government to favor and disfavor points of view on (in modern times, at least) innumerable subjects .");
28. Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 IOWA L. REV. 1377, 1380 (2001);
29. Helen Norton, Not for Attribution: Government's Interest in Protecting the Integrity of Its Own Ex-pression, 37 U.C. DAVIS L. REV. 1317, 1321-22 (2004).
30. The term "government speech" is misleading, at least as it is used in the government speech doctrine. This Article does not concern government speech in that sense. Let me briefly critique the concept and frame my project in alternative terms. When the Court calls something government speech in a case like Summum, it is really concluding that the rule against viewpoint discrimina-tion should not apply. After all, the government is an entity and it necessarily communicates through individuals, many of whom are arguably private. So the real question in these cases is not whether an expression really is at-tributable to the government, but rather whether the rule against viewpoint discrimination ought to apply. That is a normative matter, not a descriptive one. Frederick Schauer, Principles, Institutions, and the First Amendment, 112 HARV. L. REV. 84, 101 (1998).
31. An influential effort to identify the normative principles that govern that determination is Robert C. Post, Subsidized Speech, 106 YALE L.J. 151, 153 (1996). For instance, Post argues that when the government is contributing to public debate, rather than managing its own affairs or setting down rules to guide government employees, it has greater constitutional leeway to say what it likes. Id. By contrast, I am interested here in situations where the government ad-mittedly can engage in viewpoint discrimination-and therefore is deploying government speech in that sense. I ask whether, even in those situations, there are constitutional values or provisions that restrict what government can say. That too is a normative question, but the evaluative criteria are dif-ferent from those that are relevant to answering whether an utterance or ex-pression counts as government speech for purposes of the government speech doctrine. Put in conventional terms, this Article articulates constitutional lim-its that apply even when everyone agrees that the government is contributing to public debate on issues of the day, so that viewpoint discrimination is per-missible.
32. Summum, 555 U.S. at 468 ("A government entity may exercise this same freedom to express its views when it receives assistance from private sources for the purpose of delivering a government-controlled message.").
33. Although the Ten Commandments monument had been adopted by the town, the obvious Establishment Clause challenge was not before the Court. In any event, it likely would not have succeeded after Van Orden v. Perry, 545 U.S. 677, 677 (2005) (upholding a Ten Commandments monument).
34. See, e.g., ACLU of Fla. v. Dixie Cnty. Fla., 797 F. Supp. 2d 1280, 1285 (N.D. Fla. 2011) ("The Free Speech Clause restricts government regulation of private speech, it does not regulate government speech. This does not mean that there are no restraints on government speech. Government speech must still comport with the Establishment Clause.").
35. See sources cited supra note 5; see also Daniel W. Park, Government Speech and the Public Forum, 45 GONZ. L. REV. 113, 145-46 (2009) (arguing explicitly that because the Constitution sets one express limit on government speech, it implicitly rejects all others).
36. Rust v. Sullivan, 500 U.S. 173, 200 (1991);
37. David Cole, Beyond Uncon-stitutional Conditions, 67 N.Y.U. L. REV. 675, 716 (1992).
38. That scenario is stylized, but it isolates a dynamic that has operated in real cases as well. A relatively straightforward example is Anderson v. Mar-tin, in which Louisiana required ballots to display the race of each candidate. 375 U.S. 399, 400 (1964);
39. Dorf, supra note 10, at 1294; Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 154-55 (1976).
40. Lynch v. Donnelly, 465 U.S. 668, 687-88 (1984) (O'Connor, J., concur-ring) (articulating the modern endorsement test). One difference is that the endorsement test often highlights feelings, whereas the strain of antisubordination theory that I am describing asks whether the government has constituted minorities as second-class-an inquiry that is legal, not psy-chological. Anderson & Pildes, supra note 10, at 1524, 1528, 1548
41. See William M. Carter, Jr., Affirmative Action as Government Speech, 59 UCLA L. REV. 2, 25-36 (2011) (arguing that colorblindness alone cannot explain Brown, but only the social effect of the state message in the context of a particular history).
42. Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 426-27 (1960);
43. Dorf, supra note 10, at 1294; Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 154-55 (1976).
44. Lynch v. Donnelly, 465 U.S. 668, 687-88 (1984) (O'Connor, J., concur-ring) (articulating the modern endorsement test). One difference is that the endorsement test often highlights feelings, whereas the strain of antisubordination theory that I am describing asks whether the government has constituted minorities as second-class-an inquiry that is legal, not psy-chological. Anderson & Pildes, supra note 10, at 1524, 1528, 1548
45. See William M. Carter, Jr., Affirmative Action as Government Speech, 59 UCLA L. REV. 2, 25-36 (2011) (arguing that colorblindness alone cannot explain Brown, but only the social effect of the state message in the context of a particular history).
46. Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 426-27 (1960);
47. See, e.g., Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 730 (2007) ("[A]t the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat cit-izens as individuals, not as simply components of a racial, religious, sexual or national class." (internal quotation marks omitted)). Carter uses that case to argue that the Court now objects to the expressive impact of racial classifica-tions, independent of any tangible effects. Carter, supra note 42, at 12-13.
48. See Anderson & Pildes, supra note 10, at 1537 (discussing divisive-ness); Reva Seigel, From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases, 120 YALE L.J. 1278, 1307 (2011).
49. See Allen v. Wright, 468 U.S. 737, 755-56 (1984) (citing cases).
50. See, e.g., Palmer v. Thompson, 403 U.S. 217, 224-25 (1971).
51. See, e.g., Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 165 (1992) (arguing that just as courts refuse to adju-dicate claims of government stigmatization on the basis of race, so too they should refrain from striking down religious endorsements).
52. See Hein v. Freedom from Religion Found., 551 U.S. 587 (2007).
53. Pildes & Niemi, supra note 10, at 514 (iden-tifying broad implications of Shaw for standing and expressive theory). See generally B. Jessie Hill, Note, Expressive Harms and Standing, 112 HARV. L. REV. 1313 (1999) (discussing the interaction between expression and standing law).
54. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007);
55. See generally Brown v. Bd. of Educ., 347 U.S. 483 (1954).
56. See, e.g., Brown, 347 U.S. at 483 (highlighting the psychological and other intangible consequences of segregated schooling, although those aspects of the decision have not been emphasized by anticlassificationists).
57. Missouri v. Jenkins, 515 U.S. 70, 120 (1995) (Thomas, J., concurring).
58. Cf. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 746 (2007)
59. ("In Brown v. Board of Education we held that segre-gation deprived black children of equal educational opportunities It was not the inequality of the facilities but the fact of legally separating children on the basis of race on which the Court relied to find a constitutional violation in 1954." (citations omitted)).
60. This category of free speech theory is well established. See David Fagundes, State Actors as First Amendment Speakers, 100 NW. U. L. REV. 1637, 1659-60, 1661 n.119 (2006) (distinguishing between libertarian and sys-temic theories of free speech);
61. see also OWEN M. FISS, THE IRONY OF FREE SPEECH 3 (1996) (juxtaposing libertarian and democratic views).
62. For a fuller description of free speech theories, see FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 3-89 (1982).
63. See FISS, supra note 71, at 2-4 (defending a version of democratic free speech theory); ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTI-TUTIONAL POWERS OF THE PEOPLE 24-25 (1948) (putting forward a classic democratic theory of free speech);
64. See generally Pleasant Grove City v. Summum, 555 U.S. 460 (2009).
65. See, e.g., Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 598 n.3 (1998) (Scalia, J., concurring in the judgment) ("I suppose it would be uncon-stitutional for the government to give money to an organization devoted to the promotion of candidates nominated by the Republican Party-but it would be just as unconstitutional for the government itself to promote candidates nomi-nated by the Republican Party .");
66. Lathrop v. Donohue, 367 U.S. 820, 853 (1961) (Harlan, J., concurring in the judgment) (stating that a legislature could not constitutionally "create a fund to be used in helping certain political parties or groups favored by it to elect their candidates or promote their con-troversial causes" (internal quotation marks omitted)). These quotations are about funding, but they would apply just as readily to expressive endorse-ments.
67. Historically, state courts sometimes invalidated government interven-tions in issue campaigns, but they usually did so on nonconstitutional grounds or without identifying any clear legal authority. See, e.g., Citizens to Protect Pub. Funds v. Bd. of Educ., 98 A.2d 673 (N.J. 1953) (striking down a school board's efforts to persuade voters to vote for a bond referendum to finance school construction on state law grounds).
68. But see, e.g., City Affairs Comm. v. Bd. of Comm'rs, 41 A.2d 798, 800 (N.J. 1945) (upholding municipal advocacy). More recently, federal courts have upheld government advocacy on issue cam-paigns against federal constitutional challenges.
69. See, e.g., Page v. Lexington Cnty. Sch. Dist. No. 1, 531 F.3d 275, 288 (4th Cir. 2008) (holding that a school district's opposition to a school voucher proposal was government speech not amenable to free speech challenge);
70. Kidwell v. City of Union, 462 F.3d 620, 626 (6th Cir. 2006) (turning away a constitutional challenge to a city's advoca-cy on a ballot initiative).
71. For example, President Thomas Jefferson condemned the involvement of federal officers in political activities, and a circular at the time prohibited government officials from "attempt[ing] to influence the votes of others [or] take any part in the business of electioneering, that being deemed inconsistent with the spirit of the Constitution and [their] duties to it." Scott J. Bloch, The Judgment of History: Faction, Political Machines, and the Hatch Act, 7 U. PA. J. LAB. & EMP. L. 225, 229 (2005) (internal quotation marks omitted).
72. See JOHN HART ELY, DEMOCRACY AND DISTRUST 120 (1980) ("We can-not trust the ins to decide who stays out ."); id. at 135 ("[T]hose with most of the votes are in a position to vote themselves advantages at the expense of the others .").
73. See Lathrop v. Donohue, 367 U.S. 820, 852 (1961) (Harlan, J., concur-ring) ("[A]s to the Fourteenth [Amendment], viewed independently of the First, one can surely agree that a State could not create a fund to be used in helping certain political parties or groups favored by it to elect their candi-dates or promote their controversial causes any more than could Congress do so ." (internal quotation marks omitted)).
74. See Erwin Chemerinsky, Cases Under the Guarantee Clause Should Be Justiciable, 65 U. COLO. L. REV. 849, 849 (1993) ("It is a well-settled princi-ple that cases brought under [the Guarantee Clause] must be dismissed as posing a nonjusticiable political question.").
75. See Burt v. Blumenauer, 699 P.2d 168, 175 (Or. 1985) (en banc) (rely-ing on "principles of representative government enshrined in our constitu-tions" as well as the Speech Clause);
76. LARRY ALEXANDER, IS THERE A RIGHT OF FREEDOM OF EXPRESSION? 90, 101-02 (2005) (accounting for the impulse that a government message urging citizens to "vote Republican" would be unconsti-tutional and limiting himself to the Speech Clause);
77. id. at 213 (acknowledging other possible claims); Shiffrin, supra note 5, at 620 (arguing that free speech, and not equal protection, should be the primary source of restrictions on gov-ernment speech and noting that "a major concern with government speech is its impact on the total system of freedom of expression"). But see Nat'l En-dowment for the Arts v. Finley, 524 U.S. 569, 598 n.3 (1998) (Scalia, J., con-curring in the judgment) (noting that although "it would be unconstitu-tional for the government itself to promote candidates nominated by the Republican Party I do not think that unconstitutionality has anything to do with the First Amendment"). Justice Scalia's view here seems to be that government funding of speech promotes rather than dampens expression, and that it is therefore permissible even if it is viewpoint discriminatory, so long as a public forum is not created. See id. at 598-99.
78. Cf. Frederick Schauer, Is Government Speech a Problem?, 35 STAN. L. REV. 373, 382 (1983) ("Governmental support of particular candidates, for ex-ample, is not likely to be a great problem if we assume that at least some in-formation about all of the candidates is available to the electorate.").
79. See, e.g., Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 598 n.3 (1998) (Scalia, J., concurring in the judgment) ("[I]t would be unconstitu-tional for the government itself to promote candidates nominated by the Re-publican Party .");
80. Int'l Ass'n. of Machinists v. Street, 367 U.S. 740, 788 (1961) (Black, J., dissenting) ("Probably no one would suggest that Congress could, without violating [the First] Amendment create a fund to be used in helping certain political parties or groups favored by the Government to elect their candidates or promote their controversial causes."). It is probably fair to say that Justice Black's position on free speech aligns most closely with free speech libertarianism
81. See CHRISTOPHER L. EISGRUBER, THE NEXT JUSTICE 23 (2007) (noting that Black displayed a "robust libertarianism" on speech is-sues).
82. See Kidwell v. City of Union, 462 F.3d 620, 626 (6th Cir. 2006) (ap-proving a city's decision to urge voters to support its initiative to establish a fire department).
83. Ala. Libertarian Party v. City of Birmingham, 694 F. Supp. 814, 820 (N.D. Ala. 1988).
84. Kidwell, 462 F.3d at 626.
85. Perry v. Brown, 671 F.3d 1052, 1093 (9th Cir. 2012)
86. vacated and remanded for lack of standing by Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).
87. United States v. Windsor, 133 S. Ct. 2675, 2693 (2013). The rest of the sentence reads "made lawful by the unquestioned authority of the States" but it is not clear what import this nod to federalism actually has. Id.
88. Perry, 671 F.3d at 1063.
89. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 970 (N.D. Cal. 2010) ("Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and com-mitment in the United States.");
90. See, e.g., Opinions of the Justices to the Senate, 802 N.E.2d 565, 570 (Mass. 2004) ("The dissimilitude between the terms 'civil marriage' and 'civil union' is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status.").
91. United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (emphasis added)
92. (quoting H.R. REP. NO. 104-664, at 12-13 (1996)). Moreover, a member of the U.S. House of Representatives said "[u]nless we pass the Defense of Marriage Act, we will [be] putting our stamp of approval on gay marriages."
93. David B. Cruz, "Just Don't Call It Marriage": The First Amendment and Marriage as an Ex-pressive Resource, 74 S. CAL. L. REV. 925, 951 (2001)
94. quoting 142 CONG. REC. H7495 (daily ed. July 12, 1996) (statement of Rep. Lipinski)
95. Also, Senator Gramm argued "[t]o say that we should stay out of this issue is to simply en-dorse same-sex marriages." Id. (quoting 142 CONG. REC. S10,106 (daily ed. Sept. 10, 1996).
96. See generally Lawrence v. Texas, 539 U.S. 558, 589-90 (2003) (Scalia, J., dissenting) ("Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is 'immoral and unacceptable' constitutes a rational basis for regulation.");
97. United States v. Windsor, 133 S. Ct. 2675, 2707 (2013) (Scalia, J., dissenting) ("[T]he Constitution does not forbid the government to enforce traditional moral and sexual norms.").
98. Two justifications have been featured in state court litigation. See Nelson Tebbe & Deborah Widiss, Equal Access and the Right to Marry, 158 U. PA. L. REV. 1375, 1437-38 (2010). First, defenders argue the laws promote "responsible procreation" insofar as they minimize harmful consequences when different-sex couples have children accidentally. Id. Marriage stabilizes relationships in a way that is good for couples who bear children without proper planning, a category that generally does not include same-sex couples. Id. Second, states say that different-sex marriage provides the "optimal" setting for childrearing, either because there is a parent of each gender in the home, or because the biological parents are involved. Id. Regardless of the plausibility of these two arguments, the point here is that there is disagreement over the purposes-and therefore the social meanings-of restrictive marriage laws.
99. See supra text accompanying notes 6-7 (discussing Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring);
100. Cnty. of Allegheny v. ACLU, 492 U.S. 573, 595 (1989) (adopting Justice O'Connor's endorsement test)).
101. Lynch, 465 U.S. at 688.
102. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000);
103. See generally ROYCE CROCKER, CONG. RESEARCH SERV., R42831, CONGRESSIONAL REDISTRICTING: AN OVERVIEW (2012); id. at ii ("Most redistricting is currently done by state legislatures.").
104. See Vieth v. Jubelirer, 541 U.S. 267, 277-81 (2004).
105. For a review of the current state of gerrymandering doctrine, see Nicholas O. Stephanopoulos, Redistricting and the Territorial Community, 160 U. PA. L. REV. 1379, 1379 (2012).
106. See League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 417 (2006) ("The legislature does seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority . . . .");
107. Richard H. Pildes, The Constitution and Political Competition, 30 NOVA L. REV. 253, 266 (2006) (noting that party insiders are perfectly candid about the partisan purpose of much redistricting).
108. See generally Nathaniel Persily, In Defense of Foxes Guarding Henhouses: The Case For Judicial Acquiescence to Incumbent-Protecting Gerrymanders, 116 HARV. L. REV. 649, 650 (2002) (raising similar questions).
109. See, e.g., John Sides, Gerrymandering Is Not What's Wrong with American Politics, WASH. POST WONKBLOG (Feb. 3, 2013, 12:29 PM), http://www. washingtonpost.com/blogs/wonkblog/wp/2013/02/03/gerrymandering-is-not-whats- wrong-with-american-politics/ (arguing as an empirical matter that gerrymandering does not account for partisanship in Congress).
110. See Vieth v. Jubelirer, 541 U.S. 267, 277-81 (2004).
111. See, e.g., Robert Draper, The League of Dangerous Mapmakers, ATLANTIC, Sept. 19, 2012, available at http://www.theatlantic.com/magazine/archive/2012/ 10/the-leauge-of/309084/;
112. James Polk, Why Your Vote For Congress Might Not Matter, CNN (Nov. 18, 2011, 10:19 AM), http://www.cnn.com/2011/11/18/politics/gerrymandering/index. html.
113. Abby Rapoport, Does Gerrymandering Violate Free Speech?, AM. PROSPECT, Jan. 30, 2012, available at http://www.prospect.org/article/does-gerrymandering- violate-free-speech.
114. But see Mark D. Rosen, The Structural Constitutional Principle of Re-publican Legitimacy, 54 WM. & MARY L. REV. 372, 436-41 (2012) (endorsing a structural approach to gerrymandering).
115. Without focusing on government expression, free speech challenges to gerrymandering have failed on the ground that speech by political minorities within these districts is not actually silenced or burdened. See Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, 835 F. Supp. 2d 563, 575 (N.D. Ill. 2011);
116. League of Women Voters v. Quinn, No. 1:11-cv-5569, 2011 WL 5143044, at *3 (N.D. Ill. Oct. 28, 2011);
117. see also Vieth, 541 U.S. at 314 (Kennedy, J., concurring in the judgment) (envisioning a free speech claim, but only where a gerrymander had both the purpose and the effect of burdening representational rights).
118. See generally Shaw v. Reno, 509 U.S. 630 (1993) (holding redistricting based on race to a strict scrutiny standard).
119. See Carol Sanger, Seeing and Believing: Mandatory Ultrasound and the Path to a Protected Choice, 56 UCLA L. REV. 351, 360-61 (2008) ("[W]hen or to what extent may the state persuade a person not to exercise a constitutional right?");
120. see also Corey Brettschneider, When the State Speaks, What Should It Say? The Dilemmas of Freedom of Expression and Democratic Persuasion, 8 PERSP. ON POL. 1005, 1005 (2010).
121. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878 (1992) ("Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.").
122. See Linda Wharton et al., Preserving the Core of Roe: Reflections on Planned Parenthood v. Casey, 18 YALE J.L. & FEMINISM 317, 343-46 (2006) (discussing recent doctrine concerning the purpose prong of the undue burden test).
123. The Court seemed to question whether purpose alone could invalidate an abortion restriction in Mazurek v. Armstrong, 520 U.S. 968, 972-73 (1997) (dicta);
124. See Casey, 505 U.S. at 878.
125. See, e.g., Harris v. McRae, 448 U.S. 297 (1980);
126. Maher v. Roe, 432 U.S. 464 (1977).
127. See Rust v. Sullivan, 500 U.S. 173, 179 (1991).
128. Legal Serv. Corp. v. Velazquez, 531 U.S. 533, 541 (2001).
129. See, e.g., N.C. GEN. STAT. § 90-21.85 (2012) (so providing). States have passed various versions of ultrasound laws. Right now, twenty-two states regulate ultrasound provision, seven by requiring abortion providers to perform an ultrasound on each woman and offer her an opportunity to view it, nine by requiring every woman to have an opportunity to view an ultrasound if the provider performs one (as virtually all do), and five by requiring generally that a woman be provided an opportunity to view such an image. GUTTMACHER INST., STATE POLICIES IN BRIEF: REQUIREMENTS FOR ULTRASOUND, (Oct. 1, 2013), available at http://www.guttmacher.org/statecenter/spibs/spib-RFU.pdf
130. see also Florida and Texas: A Guide to Mandatory Ultrasound Legislation, NARAL PRO-CHOICE AM. (May 13, 2011), http://www.prochoiceamerica.org/ media/press-releases/2011/pr05132011-ultrasound .html.
131. Courts have mostly upheld mandatory ultrasound laws, although some have invalidated them. Compare Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570 (5th Cir. 2012) (upholding a law that required physicians to perform and display a sonogram of the fetus, make audible the heart auscultation of the fetus for the woman to hear, and explain to her the results of each procedure)
132. with Stuart v. Huff, 834 F. Supp. 2d 424, 432-33 (M.D.N.C. 2011) (declaring a likelihood of success on a free speech claim against a North Carolina statute requiring doctors to perform an ultra-sound, make the image viewable to the patient, and describe the image to the patient in specified detail).
133. Government nonendorsement may suggest due process limitations on other instances of government speech around abortion as well. For instance, the Eighth Circuit found a due process violation in a South Dakota statute that required doctors to "describe 'all known medical risks' of abortion, including '[i]ncreased risk of suicide ideation and suicide.'" Planned Parenthood v. Rounds, 653 F.3d 662, 670 (8th Cir. 2011) (quoting S.D. CODIFIED LAWS 34-23A-10.1(1)(e)(ii) (2011)). The court found a due process violation, as well as compelled speech that violated physicians' freedom of expression. Id. at 673. That ruling was contested, however, and the full court later vacated the decision.
134. Planned Parenthood v. Rounds, 662 F.3d 1072 (8th Cir. 2011) (en banc).
135. Gonzales v. Carhart, 550 U.S. 124, 172 (2007) (Ginsburg, J., dissenting) ("[L]egal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature.").
136. Again, there may be more than one reasonable interpretation of whether a message is attributable to the government. For perceptive treatments of this difficulty, see Carline Corbin, Mixed Speech: When Speech Is Both Private and Governmental, 83 N.Y.U. L. REV. 605 (2008);
137. See, e.g., Turner v. Fredericksburg, 534 F.3d 352, 354 (4th Cir. 2008)
138. citing the leading case, Wells v. City & County of Denver, 257 F.3d 1132, 1141 (10th Cir. 2001)) (determining whether legislative prayer counted as the government's.
139. Note that this is not the same as the question of whether private action is expressive enough to be protected by the Speech Clause. See Texas v. Johnson, 491 U.S. 397, 403-05 (1989).
140. Palmer v. Thompson, 403 U.S. 217, 224-25 (1971).
141. There is a widening gap between constitutionality and court enforcement in the area of government endorsement, given the Court's increasingly strict standing requirements for Establishment Clause claims. See Hein v. Freedom from Religion Found., 551 U.S. 587, 603-05 (2007). Debates about the constitutionality of government endorsements will happen with increasing frequency outside the courts.
142. See, e.g., RONALD DWORKIN, A MATTER OF PRINCIPLE 191-92 (1985);
143. JOHN RAWLS, POLITICAL LIBERALISM 190-95 (1993).
144. See, e.g., STEVEN H. SHIFFRIN, THE RELIGIOUS LEFT AND CHURCH-STATE RELATIONS 97-133 (2009).
145. Kamenshine, supra note 10, at 1114. For another position that differs from Kamenshine's, see Christopher L. Eisgruber & Lawrence G. Sager, Chips Off Our Block? A Reply to Berg, Greenawalt, Lupu and Tuttle, 85 TEX. L. REV. 1273, 1285 (2007) ("The government, after all, is fully entitled to speak on many subjects, including metaphysics and sexual morality, subjects which may well express or reflect comprehensive viewpoints and about which the government has some obligation to respect the private judgment of individuals.").
146. Cf. McCreary Cnty. v. ACLU, 545 U.S. 844, 893 (2005) (Scalia, J., dissenting) ("With respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.").
147. Lynch v. Donnelly, 465 U.S. 668, 687-88 (1984) (O'Connor, J., concurring).
148. Cf. JEREMY WALDRON, THE HARM IN HATE SPEECH 120-21 (2012) (distinguishing between "the respect accorded to a citizen," which must be maintained, and disagreement "concerning his or her social and political convictions," which should be welcomed even when it amounts to "the sharpest attacks").
149. EISGRUBER & SAGER, supra note 43, at 126; BRIAN LEITER, WHY TOL-ERATE RELIGION? 4 (2013); Micah Schwartzman, What If Religion Is Not Special?, 79 U. CHI. L. REV. 1351, 1355 (2012).
150. ANDREW KOPPELMAN, DEFENDING AMERICAN RELIGIOUS NEUTRALITY 123-24 (2013) (arguing that religion is associated with a distinctive set of secular goods);
151. Andrew Koppelman, Religion's Specialized Specialness, 79 U. CHI. L. REV. DIALOGUE 71, 77-78 (2013), available at http://lawreview.uchicago.edu/sites/ lawreview.uchicago.edu/files/uploads/Dialogue/Koppelman% 20Online.pdf (arguing that religion is a distinctive proxy for certain goods); Tebbe, supra note 18, at 1140-49.
152. See Pleasant Grove City v. Summum, 555 U.S. 460, 468 (2009).
153. Id. at 122-23 ("'The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. . . . Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.'" (quoting Lynch v. Donnelly, 465 U.S. 668, 687-88 (1984) (O'Connor, J., concurring))).
154. KENT GREENAWALT, RELIGION AND THE CONSTITUTION: FREE EXER-CISE AND FAIRNESS 146-53 (2006).
155. KENT GREENAWALT, RELIGION AND THE CONSTITUTION: ESTABLISH-MENT AND FAIRNESS 1-15 (2008).
156. See Van Orden v. Perry, 545 U.S. 677, 698 (2005) (Breyer, J., concurring in the judgment).
157. Douglas Laycock, Formal, Substantive and Disaggregated Neutrality Toward Religion, 39 DEPAUL L. REV. 993, 1001 (1990).
158. Religious parents challenged this practice, unsuccessfully. See Parker v. Hurley, 514 F.3d 87, 90, 107 (1st Cir. 2008).
159. For detailed support of the principle that government may not take positions on questions of religious truth, see 2 KENT GREENAWALT, RELIGION AND THE CONSTITUTION: ESTABLISHMENT AND FAIRNESS 57-60 (2008);
160. Kent Greenawalt, Fundamental Questions About the Religion Clauses: Reflections on Some Critiques, 47 SAN DIEGO L. REV. 1131, 1144 (2010).