The Evolution and Overuse of Qualified Immunity in Police Brutality Cases

By: Emily Yang

Edited By: Tess Ballis and Hannah Cheves

1. Introduction and Background
As America has reckoned with the ubiquity of police brutality, exemplified through nationwide protests and calls for budget and policy changes, legal loopholes remain that diminish police accountability. Qualified immunity is a legal principle that minimizes the financial and legal obligations authorities face when violating constitutional law. With a code first introduced by 42 U.S.C. § 1983 (1871), Congress aimed to make individuals culpable of depriving others of their constitutional rights subject to appropriate legal action —which has since been modified to exclude, to an extent, the actions taken by government officials.[1] This exception has paved the way for the modern interpretation of qualified immunity, which effectively decreases the accountability of government officials, and specifically law enforcement officers. 

Today, judges consider two factors when determining whether to pursue legal action against government officials: 1) whether the official violated a constitutional right and 2) whether this right or law was clearly established to the point that an official would be reasonably aware. These components are objectively vague, especially given that appellate courts largely depend on precedent when reaching their verdicts. Consequently, officials are enabled to blatantly disregard constitutional rights with few to no consequences. Furthermore, as police officers reap the benefits of qualified immunity, this principle can hinder the attainment of legal justice in the case of unnecessary use of force. Despite what appear to be clear violations of constitutional rights, today’s partisan gridlock in Congress and dependence on precedence in American jurisprudence make the path to abolishing qualified immunity in police brutality cases complex.

2. Supreme Court Cases

Qualified immunity has evolved beyond the 1871 code, corresponding with a community rise in police involvement in the 1970’s.[2] Harlow v. Fitzgerald, 457 U.S. 800 (1982) reexamined the parameters of qualified immunity, defining the extent to which the principle could protect government officials.[3] In a now-infamous whistleblower case, Arthur Fitzgerald, a deputy in the Office of the Secretary of the Air Force, testified before the Joint Economic Committee in Congress to contend $2 billion in cost overruns and was consequently blacklisted from future government positions and fired by President Nixon. Despite this evidently egregious abuse of power, the Supreme Court ruled that certain government officials “require complete protection from suits for damages,” asserting that executive officials in particular should be offered immunity under the assumption that they will exercise discretion under “good faith”.[4] Of course, there is irony in this decision, considering Nixon’s impeachment in 1973. Additionally, this vague expectation that executive officials will operate with integrity has been further extended to other officials, including police officers. 

In Saucier v. Katz, 533 U.S. 194 (2001), Elliot Katz’s allegation that Donald Saucier, a military police officer, had violated his Fourth Amendment rights when using excessive force to arrest Katz at a protest outside of Vice President Al Gore’s speech set a foundation for today’s police officers to utilize the qualified immunity defense in situations in which they are accused of violating individuals’ constitutional rights.[5] The Supreme Court’s ruling cited a desire to avoid the “cost and expense of trial,” thereby setting forth the precedent to require that 1) an official’s misconduct was unconstitutional and 2) the law the official broke was clearly established.[6] In avoiding the “cost of trial,” cases involving police officers very rarely reach court — let alone a jury — circumventing the United States’ rule of law.[7] Moreover, Saucier v. Katz determined that one must consider the use of qualified immunity in light of a case’s specific circumstances; as a result, it is extremely difficult to argue whether a law has been clearly established unless there exists an exceptionally similar case that has been ruled in favor of the plaintiff.[8] 

3. Justification and Critique

In nearly all cases that call for qualified immunity, plaintiffs cite violations of the Fourth Amendment of the U.S. Constitution. With recent police brutality cases, plaintiffs have argued that police officers encroached on their right to safety from “unreasonable searches and seizures,” as well as their right to be secure in their “persons, houses, papers, and effects”.[9] 

As with all American jurisprudence, there is a justification for qualified immunity: to reduce court congestion and encourage decisiveness among government officials. Proponents of qualified immunity today argue that it enables law enforcement officers to make “judgement calls in rapidly evolving situations,” arguing that the doctrine protects all but the “plainly incompetent or those who knowingly ignore the law”.[10] 

However, these justifications do not outweigh the drawbacks, as demonstrated by gross misuses of power by executives and numerous examples of police brutality that have transpired without consequence. As earlier stated, modern cases involving police brutality require nearly identical precedent to argue that officers were depriving others of constitutional rights that are clearly established. Supreme Court Justice Sonia Sotomayor argues that qualified immunity provides an “absolute shield for law enforcement officers” and creates a “one-sided” federal court system.[11] Qualified immunity contradicts the rule of law, placing certain authorities above the Constitution. And, of course, this protection lends itself to unaddressed violence predominantly perpetrated against people of color.[12] 

4. Police Brutality and Modern Legal Loopholes

Issues with excessive use of force involving law enforcement officials often evoke judicial and social questioning of whether qualified immunity is applicable. Some past Supreme Court rulings have limited the situations in which police officers can exert lethal force, a main point of contention in the discussions on police brutality. Tennessee v. Garner, 471 U.S. 1 (1985) dictates that police officers may only exert deadly force if they believe the suspect poses a “significant threat or serious physical injury to the officer or others.”[13] However, the vagueness of this ruling, once again, leaves excessive room for interpretation by officers. Racial profiling can play a significant role when officers determine whether suspects pose a threat — research on stop and frisk procedures, which again call into question individuals’ Fourth Amendment rights, illustrated that Black people were stopped at 10 times the rate of white people, raising concern over bias that may go into deeming an individual a “significant threat”.[14] This issue is best exhibited in Scott v. Harris 550 U.S. 372 (2007), a high-speed police chase ended by an officer clipping Harris’s car, rendering Harris quadriplegic. Harris began to flee after an officer activated his lights; the high-speed chase lasted approximately 10 miles. The crime Harris was culpable of was driving 73 mph in a 55-mph zone; nevertheless, the Supreme Court determined that the officer, under qualified immunity, would not face consequences, as Harris’s escape was considered a danger to others and upheld by the ruling in Tennessee v. Garner.[15] When a tape of Scott’s pursuit of Harris was released to the public, there were mixed decisions as to whether Scott’s decision was justified — in fact, Black viewers were more likely to indicate “no,” whereas white viewers were more likely to indicate “yes,”[16] alluding to the role racial profiling may have played in Scott’s decision to employ lethal force and, ultimately, the court’s decision to call upon qualified immunity. 

After George Floyd was murdered in 2020, Derek Chauvin was sentenced to 22.5 years in prison for second-degree unintentional murder, third-degree murder, and second-degree manslaughter.[17] While Floyd’s case arguably concluded with justice on the side of the wrongfully killed, the circumstances of a police officer unjustifiably using force against a Black person echoed those of past cases that were never heard in court because of the qualified immunity doctrine. One officer shot a 10-year-old child when attempting to fire at a non threatening dog [18]; another shot a 14-year-old boy who dropped his BB gun and raised his hands, following police directives.[19] Both of these cases were dismissed under qualified immunity, despite the fact that these cases are in flagrant violation of the Fourth and Fourteenth Amendments and were naturally highly scrutinized by the public. Furthermore, the dismissal of these cases set precedent for the defense of future police recklessness. 

5. Policy Change and Moving Forward

To address the nationwide response to the killings of George Floyd and Breonna Taylor, the latter of which received very few legal ramifications for the officers involved, several politicians have introduced acts or policies in hopes of ending qualified immunity. In 2020, Colorado state passed the Enhance Law Enforcement Integrity Act (SB20-217), permitting plaintiffs to bypass qualified immunity when pressing charges against law enforcement officials for the violation of their civil rights.[20] On the federal level, Reps. Ayanna Presley and Justin Amash and Sens. Ed Markey and Elizabeth Warren proposed an act in 2020,[21] which would amend Section 1983 of the Constitution to establish that the qualified immunity doctrine does not serve as “grounds for defense for officers that violate the law.”[22] Nonetheless, 35 state qualified-immunity bills “have died in the past months” or have been amended to allow for vague exceptions in favor of law enforcement officers.[23] Consequently, while the Ending Qualified Immunity Act may be an optimistic step in diminishing the role of qualified immunity in police brutality cases, this act 1) has yet to be introduced to Senate, which may see more divided responses because of its partisan gridlock -- as illustrated by the Senate block of the George Floyd Justice in Policing Act [24] -- and 2) may be overridden by loopholes in state laws, such as strengthened qualified-immunity rights of officers in Iowa and Arkansas.[25] 

Republican senators’ reluctance to pass police reform acts, in addition to heightened financial and social support for law enforcement, may prove the abolishment of qualified immunity incredibly difficult. The topic of police brutality has become exceedingly partisan; therefore, although qualified immunity may contradict the rule of law as outlined in the Constitution, politicians may be compelled to vote along party lines. Nonetheless, as current laws stand throughout most of the United States, qualified immunity remains a way in which government officials can behave above the law at the cost of human life and legal justice.

Notes:

1. Enforcement Act of 1871, 42 U.S.C. § 1983 (1871).

2. Skolnick, J. H., and D. H. Bayley. "Community Policing: Issues and Practices Around the World." Office of Justice Programs, 1988.

3. Harlow v. Fitzgerald, 457 U.S. 800 (1982).

4. Harlow v. Fitzgerald (1982).

5. Saucier v. Katz, 533 U.S. 194 (2001).

6. Saucier v. Katz (2001).

7. U.S. Const. art. III, § 2.

8. Saucier v. Katz (2001).

9. U.S. Const. amend. IV.

10. U.S. Library of Congress. Congressional Research Service. Policing the Police: Qualified Immunity and Considerations for Congress, by Whitney K. Novak. LSB10492. 2020. 

11. "U.S. Supreme Court Declines to Review Qualified Immunity Cases." Crabbe, Brown & James, LLP. September 23, 2020. https://cbjlawyers.com/u-s-supreme-court-declines-to-review-qualified-immunity-cases/.

12. “There’s Overwhelming Evidence That the Criminal Justice System Is Racist. Here’s the Proof.” Balko, Radley. The Washington Post. June 10, 2020. https://www.washingtonpost.com/graphics/2020/opinions/systemic-racism-police-evidence-criminal-justice-system/. 

13. Tennessee v. Garner, 471 U.S. 1 (1985).

14. "Stop and Frisk." Legal Information Institute. https://www.law.cornell.edu/wex/stop_and_frisk.

15. Scott v. Harris, 550 U.S. 372 (2007).

16. Kahan, Dan, David Hoffman, and Donald Braman. "Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism." Harvard Law Review122 (January 2009).

17. Wamsley, Laurel. "Derek Chauvin Found Guilty Of George Floyd's Murder." NPR. April 20, 2021. https://www.npr.org/sections/trial-over-killing-of-george-floyd/2021/04/20/987777911/court-says-jury-has-reached-verdict-in-derek-chauvins-murder-trial.

18. Corbitt v. Vickers, No. 17-15566 (11th Cir. 2019).

19. Nelson v. City of Battle Creek, Michigan, No. 18-1282 (6th Cir. 2020).

20. Sibilla, Nick. “Colorado Passes Landmark Law Against Qualified Immunity, Creates New Way to Protect Civil Rights.” Forbes. June 21, 2020. https://www.forbes.com/sites/nicksibilla/2020/06/21/colorado-passes-landmark-law-against-qualified-immunity-creates-new-way-to-protect-civil-rights/?sh=6774c816378a. 

21. Ending Qualified Immunity Act, H.R. 7085, 116th Cong. (2020). https://www.congress.gov/bill/116th-congress/house-bill/7085

22. Kindy, Kimberly. “Dozens of States Have Tried to End Qualified Immunity. Police Officers and Unions Helped Beat Every Bill.” The Washington Post. Oct. 7, 2021. https://www.washingtonpost.com/politics/qualified-immunity-police-lobbying-state-legislatures/2021/10/06/60e546bc-0cdf-11ec-aea1-42a8138f132a_story.html. 

23. Kindy, Kimberly, “End Qualified Immunity.” 2021.

24. George Floyd Justice in Policing Act, H.R. 1280, 117th Cong. (2020). https://www.congress.gov/bill/117th-congress/house-bill/1280 

25. Kindy, Kimberly. “End Qualified Immunity.” 2021

Bibliography:

Kahan, Dan, David Hoffman, and Donald Braman. "Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism." Harvard Law Review 122 (January 2009).

Kindy, Kimberly. “Dozens of States Have Tried to End Qualified Immunity. Police Officers and Unions Helped Beat Every Bill.” The Washington Post. Oct. 7, 2021. https://www.washingtonpost.com/politics/qualified-immunity-police-lobbying-state-legislatures/2021/10/06/60e546bc-0cdf-11ec-aea1-42a8138f132a_story.html. 

Sibilla, Nick. “Colorado Passes Landmark Law Against Qualified Immunity, Creates New Way to Protect Civil Rights.” Forbes. June 21, 2020. https://www.forbes.com/sites/nicksibilla/2020/06/21/colorado-passes-landmark-law-against-qualified-immunity-creates-new-way-to-protect-civil-rights/?sh=6774c816378a. 

Skolnick, J. H., and D. H. Bayley. "Community Policing: Issues and Practices Around the World." Office of Justice Programs, 1988.

"Stop and Frisk." Legal Information Institute. https://www.law.cornell.edu/wex/stop_and_frisk.

U.S. Library of Congress. Congressional Research Service. Policing the Police: Qualified Immunity and Considerations for Congress, by Whitney K. Novak. LSB10492. 2020. 

"U.S. Supreme Court Declines to Review Qualified Immunity Cases." Crabbe, Brown & James, LLP. September 23, 2020. https://cbjlawyers.com/u-s-supreme-court-declines-to-review-qualified-immunity-cases/.

Wamsley, Laurel. "Derek Chauvin Found Guilty Of George Floyd's Murder." NPR. April 20, 2021. https://www.npr.org/sections/trial-over-killing-of-george-floyd/2021/04/20/987777911/court-says-jury-has-reached-verdict-in-derek-chauvins-murder-trial.

The IL Attorney General: Holding Law Enforcement Accountable

By: Reese Rosental Saporito 

Edited By: Hannah Cheves and Kiran Sheth

In today’s society, marginalized communities often suffer at the hands of law enforcement officials. Many times, lawsuits and complaints against these officials go unnoticed and unpunished. The most recent set of Illinois criminal law reforms includes Section 10-116.7, which allows the Illinois attorney general to sue law enforcement with reasonable cause.[1] This long overdue change will bring solace for those who previously suffered at the hands of government officials. 

Allowing the attorney general to get involved in such cases means that the system will become less discretionary, as actions by law enforcement will be scrutinized by higher authorities. Increased involvement by the state’s attorney general will help convict police officers for their wrongdoings and help reduce the popular culture stereotype that no police shootings are bad shootings.[2] Punishing police officers for engaging in conduct in violation of a person’s right to due process and a fair trial under the Constitution will lead to more accountability for police wrongdoing, and allow for due process for those affected. This can be seen with women’s rights in sexual assault cases in particular.[3]

The Illinois criminal justice system leaves many decisions to the discretion of law enforcement officers. There tends to be little oversight from mayors and elected officials when it comes to monitoring the police.[4] Discretionary decisions by police officers are often rooted in racial biases, thus creating specialized targets within our justice system.[7] Complaints filed against police officers for unlawful arrest or harm often have little impact due to loosely structured laws and regulations.[8] Therefore, improper police conduct is inadequately discouraged, punished, and prevented.[5] However, due to the recent Illinois criminal law reforms, enacted by the Illinois House and Senate, the attorney general will now be responsible for taking action against these violations. As long as there is reasonable cause to believe that the governmental authority in question acted in a way that violated the constitutional rights of another person, they can face prosecution.[6]

Now that the Illinois attorney general has the power to take civil action against officers for their wrongdoings, more police officers will be held accountable and punished for committing heinous acts that disproportionately affect communities of color. The criminal justice system is not impartial-law enforcement officials arrest people of color at much higher rates than white people. Oftentimes they are arrested for lesser crimes and often receive longer sentences than white people for the same crime. This will also deter behaviors that, “deprive any person of rights, privileges, or immunities secured or protected by the Constitution or laws,”[9] thus discouraging discretionary biases causing unequal treatment and unlawful arrests of targeted groups.

A major issue surrounding the actions of the police is how the media portrays their conduct. With this law in Illinois, there is potential for media headlines to start reading  “Officer Arrested” and the biases and discrimination held by police officers may no longer be ignored by the public. For decades, popular culture in America has perpetuated the idea that there are virtually no bad police shootings, such as in the TV series “Adam-12” on NBC.[10] This furthers the notion that a police officer firing their gun is always justified, without taking into account their circumstances or biases. This shields officers from repercussions involving wrongful shootings and creates the false narrative that an officer shooting their gun is self-defense or a “last resort”.[11] However, this is often not the case in real life. 

Officers turn to violence to assert dominance, even when it is not necessary, and the choice to act with violence is often a result of their own biases. They almost always justify this action by calling it an act of self-defense, and the legality is partially based on fear, an entirely subjective factor.[12] In 1989, the Supreme Court case Graham v. Connor established a standard of “objective reasonableness,” which held that one officer’s  choice to fire their gun will be compared to whether a reasonable officer  would have fired in the same situation or not.[13] Creating these subjective guidelines for whether or not an officer was justified in shooting their gun is ineffective in combating police misconduct, as they do not take into consideration the biases police officers have, nor the disparities in what groups are suffering from violent acts. These guidelines were not created to be objective, regardless of how they are defined, therefore, so long as they are in effect, people of color, lower-income people, and other disadvantaged groups will continue to suffer.  Now that these cases can be scrutinized by higher authorities such as the attorney general, police officers will receive ample punishment, such as termination of employment, fines, or even jail time, and set an example for how shootings will not be overlooked simply because the officer was scared, or claimed to be defending themselves.

By enacting these punishments, the attorney general will show law enforcement officers that these acts will no longer go unpunished. The attorney general will now be able to uphold a standard that there must be strong evidence that the officer  fired their gun because they were in a position of immediate danger or that it truly was their last resort. This will increase accountability and create a less discretionary justice system.

Allowing the attorney general to sue government officials has an impact that spreads further than racial biases and discretion in the field. It will also force police officers to do their job, regardless of what the officer’s  personal beliefs are, especially in cases of sexual assault. In Detroit, there are over 11,000 rape kits that have been sitting in a warehouse for years, untested and univestigated.[14] The deeper problem is that police officers do not believe women in such cases, and therefore do not sufficiently aid them in their fight to get justice against their rapists.[15] 

It is not the police officers’ right to decide who gets a chance at justice, and because they are not held accountable, they get away with not testing rape kits for years.[16] If a woman calls to report a rape, she is often encouraged to drop it, and if it does make it into the hands of a detective, it often closes with little investigation and no arrest.[17] In 98% of rape cases, the assailant goes free, making rape the easiest crime to get away with.[18] Based on the inaction of the police in Detroit, this could very well be because the rape kits are never tested, the women are brushed off, and police officers actively discourage women from even attempting to get justice.[19] 

If more attorney generals across the country gain the right to sue government officials like in Illinois, these officers will be forced to do their job, regardless of what their personal beliefs towards the victims are. An officer should report crimes without bias, enforce punishments against offenders, and investigate evidence. That will not happen until higher authorities actively punish misconduct. Police need to be held accountable by the attorney generals in all states and not allow these cases to be dismissed with no effort to bring justice on behalf of the women, particularly when many of these cases would be solved with even minimal effort from the police.[20] 

This bill, however, is not the end-all-be-all for criminal justice reform. While it will decrease officer discretion on the job, it could lead to increased judgment from prosecutors. Holding officers to a standard when it comes to firing their weapon and persecuting individuals will not allow them to get away with prejudice-based decisions they made in the field, such as shooting an unarmed suspect because of their race, regardless of whether they pose a threat. It will, however, allow for prosecutors to decide whether an officer’s actions were discretionary or if they were objectively correct in that situation. This leaves room for the prosecutor’s biases (racial, economic, gender, etc) to come in, which could result in law enforcement officials still walking free with no convictions for their crime. A way to combat this is the use of impartial juries.[21] The purpose of these juries is to reach an unbiased decision about the case, which while not foolproof, is the best way to eliminate the prosecutor bias that could result even if police discretion is decreased.[22] This is crucial in the process of removing preconceived opinions from the criminal justice system, and is a possible next step after the passing of bills like the Illinois ones.

Policing the police is long overdue. For too long they have gone into the field basing their decisions on biases and calling it discretion. In Illinois, the most recent criminal justice reform includes giving the state attorney general the power to sue government officials if they engage in conduct that violates the constitutional rights of others. Until these authorities such as the attorney general enforce accountability, law enforcement officials will continue to uphold the precedent that police officers are immune to repercussions in our justice system. Police officers being liable for their actions will help solve crimes and bring justice for those who have been unlawfully silenced by the legal system.

NoteS:

1. Allowing the IL Attorney General to sue government officials.

2. Alyssa Rosenberg, “In pop culture there are no bad police shootings.”

3. Barbara Bradley Hagerty, “An Epidemic of Disbelief.”

4. Professor Joanna Grisinger Lecture 6.3-How do we police the police?

5. Grisinger-Lecture 6.3.

6. Allowing the IL Attorney General to sue government officials.

7. Professor Joanna Grisinger Lecture 6.2-How are criminal laws enforced? Policing. 

8. Rosenberg, “In pop culture there are no bad police shootings.” 

9. Allowing the IL Attorney General to sue government officials.

10. Rosenberg, “In pop culture there are no bad police shootings.” 

11. Rosenberg, “In pop culture there are no bad police shootings.” 

12. Rosenberg, “In pop culture there are no bad police shootings.” 

13. Rosenberg, “In pop culture there are no bad police shootings.” 

14. Hagerty, “An Epidemic of Disbelief.”  

15. Hagerty, “An Epidemic of Disbelief.”  

16. Hagerty, “An Epidemic of Disbelief.” 

17. Hagerty, “An Epidemic of Disbelief.” 

18. Hagerty, “An Epidemic of Disbelief.”  

19. Hagerty, “An Epidemic of Disbelief.” 

20. Hagerty, “An Epidemic of Disbelief.”

21. Professor Joanna Grisinger Lecture 6.6-How are criminal laws enforced? Juries.  

22. Grisinger Lecture 6.6. 

Bibliography:

Grisinger, Joanna, Lectures 6.2, 6.3, 6.6.

Illinois Attorney General - ATTORNEY GENERAL RAOUL’S POLICE REFORM, CRIMINAL JUSTICE INITIATIVES PASSED BY GENERAL ASSEMBLY, ag.state.il.us/pressroom/2021_01/20210113.html. 

“In Pop Culture, There Are No Bad Police Shootings.” The Washington Post, WP Company, www.washingtonpost.com/sf/opinions/2016/10/26/in-pop-culture-there-are-no-bad-police-shootings/. 

Story by Barbara Bradley Hagerty. “An Epidemic of Disbelief.” The Atlantic, Atlantic Media Company, 24 July 2019, www.theatlantic.com/magazine/archive/2019/08/an-epidemic-of-disbelief/592807/.

Abortion Laws and Civil Unrest: A Peek into Modern Abortion Legislation

By: Camille Nooney

Edited by: Anna Westfall and Dheven Unni

Abortion has been a divisive issue for generations. After Roe v. Wade made it legal, without excessive government restrictions, on a national level, many thought this debate about the government's place in determining abortion morality or legality had come to somewhat of an end. However, in recent years state legislatures have continued to move towards more and more abortion restrictions. These state laws culminated recently into Texas Senate Bill 8, which prevents physicians from providing any abortion care once, "cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac".[1] This can happen as early as 5-6 weeks into pregnancy: often, people are not even aware that they are pregnant at this point. 

Though many cases surrounding the legality of the bill have been taken to the courts and some have made it to the Supreme Court, Senate Bill 8 has been able to escape a lot of judicial review because of how it is enforced. This bill is not enforced by state officials; state officials are not allowed to enforce the bill. Instead, private citizens must sue those who violate the bill. This has made it difficult to determine whether the law is unconstitutional because when the Supreme Court deems a law unconstitutional, the Court blocks its enforcement as opposed to the law itself.[2] Even conservative judges who voted against the temporary blocking of Senate Bill 8 on September 2 have critiqued the interesting manner of enforcing Senate Bill 8. For example, Brett Kavanaugh, a conservative justice appointed by President Donald J. Trump, spoke out on Senate Bill 8, stating: "There's a loophole that's been exploited here or used here”.[3] Kavanaugh further criticized this "loophole" by stating that it could be used to take away other constitutional rights such as freedom of speech or religion.[3] Elena Kagan also critiqued the “loop hole” the law utilizes by speaking on the dangerous precedent it could set for other controversial issues she states, “There's nothing the Supreme Court can do about it. Guns, same-sex marriage, religious rights, whatever you don't like, go ahead”.[8] This statement by Justice Kagan further emphasizes the dangerous nature of Senate Bill 8. On September 2, 2021, in a tight 4-5 vote, the Supreme Court rejected the blocking of Senate Bill 8. Yet, this rejection was based on technical aspects of the law and not on whether the law is constitutional.[3] 

As tensions are rising surrounding Texas's legislation, Ohio has recently proposed an even harsher abortion bill that goes further than Senate Bill 8, titled House Bill 480. Similarly, House Bill 480 also specifies that state officials will not enforce it. The bill allows for civil penalties of at least $10,000 for anyone who performs or attempts an abortion. Unlike Texas's bill, however, Ohio's bill does not allow abortions before six weeks: it is a total abortion ban.[4] Whether or not the bill will pass the state House and Senate is still up for debate. 

However, the implications of a bill like this being proposed and the amount of support it has already received are severe. As these stricter laws bring up the legality of abortion bans and the possible reevaluation of Roe v. Wade, they could completely alter the landscape of abortion access. If Roe v. Wade were to be overturned, many abortion restrictions that were in place before Roe v. Wade could go back into effect. Many states also have trigger laws or bans that cannot be currently enforced but will come into effect if circumstances change, such as the overturning of Roe V. Wade.[4] For example, even if Ohio House Bill 480 is not passed, Ohio has a proposed trigger ban entitled Senate Bill 123 that, if passed, would go into effect if Roe v. Wade was overturned.[5] Eleven states currently have trigger laws that would ban abortions in the first and second trimester if Roe v. Wade was to be overturned.[6]

This December, the Supreme Court is going to hear a case concerning a Mississippi abortion law. This case has the potential to overturn Roe v. Wade and completely alter the ability of women to get an abortion in the United States. Abortion activists and anti-abortion activists alike are waiting to see what unfolds during this hearing on December 1, 2021.[7]

Notes:

1. “The College of Liberal Arts the University of Texas at Austin.” UT College of Liberal Arts: TxPEP. Accessed November 7, 2021. https://liberalarts.utexas.edu/txpep/research-briefs/senate-bill-8.php. 

2. Reese Oxner, “Key U.S. Supreme Court Justices Express Concern about Texas Abortion Law's Enforcement,” The Texas Tribune (The Texas Tribune, November 1, 2021), https://www.texastribune.org/2021/11/01/texas-abortion-law-supreme-court/.

3. Oma Seddiq, “Supreme Court Seems Skeptical of Texas' 6-Week Abortion Ban, with Justice Brett Kavanaugh Saying 'There's a Loophole That's Been Exploited',” Business Insider (Business Insider, November 1, 2021), https://www.businessinsider.com/supreme-court-considers-texas-anti-abortion-law-2021-11.

4. “HB 480: Ohio's Proposed Total Abortion Ban,” Ohio Policy Evaluation Network , n.d., https://open.osu.edu/wp-content/uploads/2021/11/HB480-PolicyBrief.pdf.

5. “S.B. No.123.” The ohio senate. Accessed November 7, 2021. https://ohiosenate.gov/legislation/GA134-SB-123. 

6. “Abortion Policy in the Absence of Roe,” Guttmacher Institute, October 6, 2021, https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe.

7. Ariane de Vogue, “Supreme Court to Hear Restrictive Mississippi Abortion Law on December 1,” CNN (Cable News Network, September 21, 2021), https://www.cnn.com/2021/09/20/politics/supreme-court-mississippi-abortion-law/index.html.

8. Oxner, R. (2021, November 2). Here's what U.S. Supreme Court justices had to say about Texas' abortion law. The Texas Tribune. Retrieved December 22, 2021, from https://www.texastribune.org/2021/11/01/supreme-court-texas-abortion-quotes/

How the Supreme Court Should Rule in Carson v. Makin

By: Daniel Wolf

Edited by: Michael Crystal and Patrick Ales

Introduction

On December 8, 2021, the US Supreme Court will hear oral arguments in the case of Carson v. Makin. The case involves a challenge to §2951(2) of Maine state law, which prohibits providing state funds for tuition purposes to “sectarian” schools that use those funds for religious instruction and proselytization.[1] Most of Maine’s school districts--formally called “administrative units”--lack their own public schools. Hence, one state law allows families in such districts to use state funds to send their children to public or private schools within or outside of the state. Three families attempted to utilize this statute to send their children to two separate Christian private schools within the state. However, Maine denied their request because it classified these schools as sectarian. After losing their case in the First Circuit Court of Appeals, the three families filed a writ of certiorari to the Supreme Court. On July 2, 2021, the Supreme Court granted the families’ petition.[2] The Court will be considering whether §2951 (2) of Maine state law violates the Fourteenth Amendment’s Equal Protection Clause or the First Amendment’s Religious Clauses. 

Precedent

An examination of Court precedent and the laws underpinning the case demonstrates that Maine’s law does not violate either the Equal Protection Clause or the Religious Clauses. Numerous past Supreme Court cases serve as precedent for Makin, primarily Locke v. Davey (2004), Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), and Espinoza v. Department of Revenue (2020). 

In Locke, Joshua Davey challenged the constitutionality of the Washington State Promise Scholarship, which provided talented students with scholarship money for college but stipulated that students could not use the funds to obtain a theology degree. Davey argued that the stipulation which prevented an eligible student from obtaining a theology degree violated the First Amendment’s Free Exercise clause. The Court disagreed, ruling that Washington’s program was constitutional because it did not discriminate against religious institutions but rather “a distinct category of instruction.”[3] Furthermore, the Court argued, states have a “historic and substantial interest” in withholding public funds for religious activities, and Washington’s program did not “suggest animus toward religion.”[4] In Locke, the Court began to make a meaningful distinction between institutions’ religious status and their use of public funds for religious purposes. The Court’s ruling implied that it would be unconstitutional for a state to withhold public funding from an institution because it is religious. However, it would be constitutional for a state to withhold public funding if an institution planned on using those funds for religious activities that the state did not want to endorse.[5] 

Comer revolved around a Missouri state law prohibiting the public treasury from providing money “in aid of any church, section or denomination of religion.”[6] The Trinity Lutheran Church of Columbia, Inc. applied for a Missouri state grant that provided money to organizations to assist them in rebuilding playgrounds. However, Missouri denied Trinity’s application based on its law about providing money to religious groups. Trinity argued that this law violated their First Amendment rights. The Court agreed, ruling that it was unconstitutional for a state to exclude churches from an “otherwise neutral and secular aid program.”[7] The program discriminated against recipients based “solely on account of religious identity.”[8] Thus, it was unconstitutional. Here, the Court further solidified the importance of status vs. use regarding the constitutionality of a state’s prohibition on funding religious organizations or activities. 

In Espinoza, the Court made the distinction between status and use even more essential. The case involved a Montana scholarship program that prohibited scholarship recipients from attending religious schools because of a state law that forbids Montana from funding religious schools.[9] Kendra Espinoza filed suit against the law, claiming that it violated the First Amendment’s Religious Clauses. The court concurred, citing Trinity, and again declaring that Montana’s law was unconstitutional because it “impose[d] special disabilities on the basis of religious status.”[10] 

Analysis 

The Court will have to decide what level of scrutiny to apply in Makin. In both Trinity and Espinoza, the Court applied the standard of strict scrutiny. Strict scrutiny is the most rigorous standard of review a court can use when determining the constitutionality of a law that seemingly violates a fundamental right, such as the right to practice one’s religion freely. To pass the strict scrutiny test, a law must “further a compelling government interest” and be “narrowly tailored” to achieve that interest.[11] The Court applied strict scrutiny in Trinity and Espinoza because those cases involved discrimination against an institution based on its religious status.[12] However, the discrimination in Makin is not status-based. Maine’s law does not exclude schools from its free tuition program based on their status as religious institutions. Instead, the law excludes schools that use state funds for religious instruction and proselytization.[13] Consequently, strict scrutiny should not apply in Makin; instead, the rational basis standard should apply. The rational basis test allows a law that seemingly restricts liberty so long as that law furthers a “legitimate state interest” and is “rational.”[14] 

The plaintiffs in Makin argue that Maine’s law violates the Equal Protection Clause of the Fourteenth Amendment because the law unfairly targets religious families, but this is not the case. Maine’s aim to restrict the use of state funds for religious education is “rational” and furthers a “legitimate government interest” because the state has historically excluded religious schools from programs that provide state funds to other public/private schools for a multitude of reasons, including “concentrating…on its goal of providing secular education, avoiding entanglement, and allaying concerns about accountability that…would accompany state oversight of parochial schools.”[15] Because of America’s federalist system of government, states are allowed to determine their own education policies, and, as the First Circuit Court wrote, Maine “has permissibly concluded that the benefit of a free public education is tied to the secular nature of the institution.”[16] 

Maine’s law also does not violate the Religious Clauses of the First Amendment. The plaintiffs argue that Trinity and Espinoza set new precedents that the Court must now follow, but these two cases are easily distinguishable from Makin. The Court sided with the plaintiffs in Trinity and Espinoza because states discriminated against organizations solely based on their religious status in both of those cases. In Makin, however, Maine is only discriminating against schools that use state funds for explicitly religious instruction. Thus, Makin is more akin to Locke than Trinity or Espinoza because of the similarities between the cases. They both relate to the use of state funds for religious purposes, and, as in Locke, Maine’s law does not “suggest animus toward religion.” Instead, it suggests a legitimate state interest in keeping the government disentangled from religion. Since Locke bears far more similarity to Makin than either Trinity or Espinoza, the Court should pay the most attention to the precedent it outlined in Locke.

Conclusion

Maine’s law regarding the use of state funds for religious instruction is constitutional. The law serves a “legitimate state interest” in that it disentangles the state from the church, and it is “rational” because it achieves this interest by preventing state-sponsored religious instruction. Since Makin is distinguishable from Trinity and Espinoza, the Court must focus on Locke. Locke demonstrates that Maine’s law is constitutional because it excludes religious institutions based on their use of state funds and not on their status, and because Maine’s law does not “suggest animus toward religion.” Consequently, Maine’s law does not violate the Establishment Clause or the Religion Clauses.

If the Court were to rule in favor of the plaintiffs, the results could be devastating. The schools where the families involved in Makin wanted to send their children teach its students a thoroughly Christian and Biblical worldview ”[17] Moreover, one of the schools requires teachers to acknowledge that “God recognize[s] homosexuals and other deviants as perverted” and refuses to admit gay children or children who come “from homes with serious differences with the school’s biblical curriculum.” A ruling in favor of the plaintiffs would violate the principle of separation of church and state because it would allow a state to sponsor education promoting religion.[18] Any ruling that erodes the principle of separation of church and state begs a certain question: if a government can pay for students to attend schools that teach religion, why can’t a government eventually start incentivizing religious education? Additionally, a ruling in favor of the plaintiffs could have practical effects on the social justice progress that activists have made in recent decades.[19] A state paying for a student to learn a “Biblical world view” could very well mean a state is funding the teaching of discrimination against people in the LGBTQ community or others. The Court must uphold Maine’s law to affirm the separation of church and state and to prevent state-sponsored discriminatory education.  

Notes:

1. Title 20-A, Maine Revised Statutes, §2951: Approval for Tuition Purposes (1981).

2. Wehle, Kimberly. “The Sleeper Scotus Case That Threatens the Separation of Church and State.” The Atlantic. Atlantic Media Company, October 14, 2021. https://www.theatlantic.com/ideas/archive/2021/10/how-carson-v-makin-could-unravel-freedom-religion/620386/

3. Locke v. Davey, 540 U. S. 2 (2004)

4. "Locke v. Davey." Oyez. Accessed November 7, 2021. https://www.oyez.org/cases/2003/02-1315.

5. Wehle, Kimberly. “The Sleeper Scotus Case That Threatens the Separation of Church and State.”

6. "Trinity Lutheran Church of Columbia, Inc. v. Comer." Oyez. Accessed November 7, 2021. https://www.oyez.org/cases/2016/15-577.

7. “Trinity Lutheran v. Comer” Oyez.

8. Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. 25 (2017)

9. "Espinoza v. Montana Department of Revenue." Oyez. Accessed November 7, 2021. https://www.oyez.org/cases/2019/18-1195.

10. Espinoza v. Montana Dept. of Revenue, 591 U. S. 2 (2020)

11. “Strict Scrutiny.” Legal Information Institute. Accessed November 7, 2021. https://www.law.cornell.edu/wex/strict_scrutiny.

12. Carson v. Makin, No. 19-1746, 26, (1st Cir. 2020).

13. Carson v. Makin, 37.

14. “Rational Basis Test.” Legal Information Institute. Accessed November 7, 2021. https://www.law.cornell.edu/wex/rational_basis_test.

15. Carson v. Makin, 58.

16. Carson v. Makin, 49. 

17. Wehle, Kimberly. “The Sleeper Scotus Case That Threatens the Separation of Church and State.”

18. Wehle, Kimberly. “The Sleeper Scotus Case That Threatens the Separation of Church and State.”

19. Wehle, Kimberly. “The Sleeper Scotus Case That Threatens the Separation of Church and State.”
    

Bibliography:

Carson v. Makin, No. 19-1746, 26, (1st Cir. 2020).

Espinoza v. Montana Dept. of Revenue, 591 U. S. 2 (2020).

"Espinoza v. Montana Department of Revenue." Oyez. Accessed November 7, 2021. https://www.oyez.org/cases/2019/18-1195.

Locke v. Davey, 540 U. S. 2 (2004).

“Locke v. Davey." Oyez. Accessed November 7, 2021. https://www.oyez.org/cases/2003/02-1315.

“Rational Basis Test.” Legal Information Institute. Accessed November 7, 2021. https://www.law.cornell.edu/wex/rational_basis_test.

“Strict Scrutiny.” Legal Information Institute. Accessed November 7, 2021. https://www.law.cornell.edu/wex/strict_scrutiny.

Title 20-A, Maine Revised Statutes, §2951: Approval for Tuition Purposes (1981).

Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. 25 (2017).

"Trinity Lutheran Church of Columbia, Inc. v. Comer." Oyez. Accessed November 7, 2021. https://www.oyez.org/cases/2016/15-577.

Wehle, Kimberly. “The Sleeper Scotus Case That Threatens the Separation of Church and State.” The Atlantic. Atlantic Media Company, October 14, 2021. https://www.theatlantic.com/ideas/archive/2021/10/how-carson-v-makin-could-unravel-freedom-religion/620386/