Arguing The Extreme & Outrageous….

We all have an innate sense of right and wrong. Our life experiences then hone that sense into a worldview by which we assign moral repugnance to certain principles or circumstances. For most people, the worldview is highly subjective. Lawyers operating in their professional capacities, however, are at least supposed to have a more objective worldview on what is right or wrong within the rule of law. In other words, life and law provide lawyers with a much clearer line between right and wrong.

This principle is especially true in American constitutional law. Even the legal professionals who do not like where the courts have drawn that line still know where the line is. When someone presents an argument that falls on the wrong side of the line, they know how to call it wrong. At the same time, presenting an argument that is merely on the wrong side of the line does not automatically place you in cuckoo land under ordinary circumstances. Presenting an argument that is so far outside the normal confines of conventional legal wisdom is begging for ostracization and some pretty harsh emotions coming back in your face.

Neither life nor law, however, is a place for the weak-willed. Being right and crazy isn’t easy.

Cue the past two months for me. In what has become a yearly tradition, I once competed/coached in and now coach moot court competitions – law school creations that simulate appellate arguments in front of the United States Supreme Court. Anyone who knows me knows that I have a competitive complex. I have problems passing up a fight, especially one on a constitutional issue. That also means that I will resort to any argument necessary to win, including the extreme and outrageous.

So lo and behold, I coached two teams this year who had to argue a qualified immunity, employment termination case. The facts were relatively straightforward. A computer technician for a state department of education did not like the state’s education policies. He wrote blog posts criticizing the department head, which received a fair share of attention. His wife worked for the department in a policy position. The department fired her, ostensibly because it was moving in a different direction and she did not fit in it. Hearsay evidence, however, established her allegations that she was terminated because of her husband’s speech – a classic case of retaliation and a clear moral wrong.

She sued the department head for First Amendment retaliation and for violating her right to intimate association under the First Amendment. The department head claimed qualified immunity, which basically serves as an absolute defense to a lawsuit if the law is not clearly established at the time of the alleged violation. Modern case law has established that “clearly established” means that not only must the general principle of law be established, but also controlling case law must exist with nearly identical facts. The case presented the question of whether qualified immunity doctrine needed to be changed, and, if so, how.

My teams had to argue both for the government and the wife. The wife’s arguments against qualified immunity practically wrote themselves. The government’s arguments, however, proved nigh insurmountable. When my teams sent me their briefs and the fact pattern in preparation for oral argument practices with a comment that they didn’t like the government’s argument, I wrote the unthinkable back in fairly short order: (1) No analogous case law exists for the First Amendment retaliation claim, and (2) deny that there is any established right to intimate association in the federal constitution.

No one liked the intimate association argument, including me and I am the guy who thought of it. Our society has an unwritten code. People do not mess around in other people’s relationships. Conventional wisdom would tell us that the Supreme Court constitutionalized this unwritten code in its cases establishing homosexual rights. Conventional wisdom, however, is really an expression of laziness or practicality depending on how you view it.

Intimate association does not have a foundation as an independently recognized constitutional right. In fact, the United States Supreme Court didn’t use the term intimate association until 2015 in the case of Obergefell v. Hodges. Prior to Obergefell, the Supreme Court in Roberts v. United States Jaycees recognized a general First Amendment right to engage in associations – usually political – and described them as intimate human relationships. It then elaborated on intimate human relationships in Board of Directors of Rotary International v. Rotary Club of Duarte, citing a litany of activities and associations such as marriage and bearing of children as protected by the First Amendment.

The Supreme Court’s Roberts and Rotary Club decisions, however, are what lawyers and law students call dicta – a term that comes from the Latin expression obiter dictum (“something said in passing”). While it can be influential to lower courts, dicta is not necessary to resolve a case, and it is not legally binding. A careful review of the cases cited in Roberts and Rotary Club shows that the Supreme Court did not base its decisions in those cases on the First Amendment in any way. Thus, it could not convert its decisions into binding First Amendment jurisprudence after the fact.

The narrow result is that the Supreme Court’s First Amendment jurisprudence only clearly protects associations connected to an idea and do not provide any protections for more intimate relationships such as marriage. So far, so good, or so I thought.

If I had stopped there, I think that I would have fallen on the sensible line of extremism if one exists, but why go half way on anything? I then proceeded to state my belief that there is no established constitutional right to intimate association. My teams are incredibly intelligent so they asked me about Lawrence v. Texas and Obergefell v. Hodges, and I obliged them by jumping off the deep-end.

Lawrence does not establish a constitutional right, I intoned. The late Justice Scalia’s dissent raked now retired Justice Kennedy’s majority opinion over the coals for its failure to articulate a fundamental constitutional right, and notable Harvard law professor, Lawrence Tribe, felt compelled to write a law review article entitled “Lawrence v. Texas: The ‘Fundamental Right’ That Dare Not Speak Its Name” in a valiant attempt to clean up Justice Kennedy’s mess. At best, Lawrence is a Griswoldian privacy decision – an acknowledgement that the Supreme Court thought something was in the Constitution but didn’t know where it was, thus forcing it to search Bill of Rights’ emanating penumbras. Thus, Lawrence reaffirmed the Griswold conclusion that the First Amendment, along with the Fourth and Fifth Amendments, protects a zone of privacy. It does not create a new right to intimate association. Even if it did, it only did so directly under the Fourteenth Amendment, not the First Amendment.

Surely Obergefell must have helped logic then, I queried rhetorically. Sadly no. Although Obergefell marks the first time that the Supreme Court used the term intimate association, the Supreme Court only used it to describe the nature of a homosexual marriage. Instead, the Supreme Court expressly recognized a right to marriage under the Fourteenth Amendment and extended it to homosexual relationships.

Thus, I argued, not only has the Supreme Court never recognized a right to intimate association under the First Amendment, but it also has never recognized one in the federal constitution.

Again, no one liked the argument, including me, but legal arguments are not sentiment contests. We expect a commitment to the rule of law, and, even when that commitment takes judges in directions that they do not like, we expect them to honor their commitment to the rule of law.

The argument is extreme and outrageous. It strains logic. You may wish my soul to be damned to a thousand hells. So what? Take a hike. I am firmly convinced that the argument is right as a matter of law.

My teams competed. They skillfully delivered the argument despite their personal distaste for it, and they predictably got hostile reactions from some judges who couldn’t see past the end of their own sensibilities. Most of the judges, however, recognized that it was an extreme and outrageous argument, but one that made logical sense. They focused more on probing the merits than crucifying the advocates.

Arguing the extreme and outrageous…. It’s fun, gut-wrenching, and thankless. Law school and the legal practice often discourage it. In doing so, they do a grave disservice to the profession. I, however, would take the extreme and outrageous argument any day of the week. It’s more fun to fight uphill with nothing to lose.

Here’s to the radicals….

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