Strict Scrutiny at the Supreme Court

Wyoming Supreme Court Building (Photo: Wikimedia Commons)

Two weeks ago I wrote about the troubling questions surrounding the case of Pinedale’s Judge, Ruth Neely vs. Wyoming’s Commission on Judicial Conduct and Ethics. It revolves around her answer to a reporter who sought her views on marriage.

This is really the only fact in the case, and it is admitted by everyone. When Judge Neely was asked whether she would perform a “same-sex marriage,” she answered, “no.” Then offered that she would help the inquirer to find a magistrate who would.

After a year and a half, this case finally came before the Wyoming Supreme Court last Wednesday. I traveled to Cheyenne to hear the oral argument. It was an interesting day.

For starters, the courtroom was filled with observers who had traveled from the four corners of Wyoming. Legislators, lawyers, ministers, teachers, businessmen and women, LGBT activists and former LGBT activists were all present. Evanston was represented (by me), but so was Jackson, Gillette, Sheridan, Casper, Thermopolis, Torrington, and, of course, a contingent from Pinedale. I even met people who came from Colorado and Salt Lake City!

A few minutes before 9:00am, the crowd began, literally, to choose sides. Some sat on the left side with the Commission, others on the right side of the room, behind Judge Neely. When all were seated, over six dozen sat on the side of Judge Neely, a dozen on the other, and an additional dozen undetermined. Veteran observers of the court informed me that such a large crowd is rarely present.

The last time there was this much interest was in the matter of Cindy Hill.

Since the case revolves entirely around a solitary verbal exchange, it would seem a straight-forward case of free speech. After all, the First Amendment prohibits “abridging the freedom of speech.” And the Wyoming Constitution guarantees that “every person may freely speak, write and publish on all subjects” (Article I, Section 18).

Not only did the Commission have to get around these prohibitions, but there is also a religious dimension. How can you sanction a judge for continuing to affirm – and live by – Scriptural doctrines that are central to Christian claims? The First Amendment guarantees not only free thought, but “free exercise.” More than that, the Wyoming Constitution, with polygamy in plain view, insists that “no person shall be rendered incompetent to hold any office… because of his opinion on any matter of religious belief whatever” (Article 1, Section 18).

The Commission sought to get around both of these obstacles by insisting that Judge Neely’s crime is neither what she believes nor what she said, but “because of what she DID.” And what did she do? According to Pat Dixon, “She expressed her unwillingness to follow the law, and she demonstrated her bias against certain groups.” Notice that both of these “actions” were done by speaking outside of the courtroom, outside of business hours, and not to anybody actually before the court.

This prompted one justice to ask, “so, if she simply hadn’t performed any same sex marriages, that’s not a problem. But when she told the world…?” To which the Commission replied, “That’s right… Judges don’t give speeches. That’s what politicians do.” This exchange caught my attention. I immediately thought of the dozens of graduation speeches and public talks given by Anthony Scalia, Ruth Bader Ginsburg, Clarence Thomas and scores of judges through the years.

Pat Dixon

Pat Dixon, the counsel for the Commission, strove throughout to downplay the constitutional questions. He told the justices, “I’m not a constitutional scholar,” and admitted that he had not actually read some of the cases cited in the Commission’s Brief. Rather than the Constitution, the Commission wanted to focus exclusively on the Code of Judicial Conduct developed not by public law, but by a committee of judges. Judge Neely, by contrast, focused primarily on the U.S. and Wyoming Constitutions. So stark was this contrast, that Justice Fox prefaced one of her questions to the Commission by saying: “I know you don’t want to talk about the Constitution, but WE need to.”

Wow!

As the talk turned to the Constitution, the question centered on whether or not this case should be held to the “Strict Scrutiny Test.” This test is the most stringent standard of judicial review used in U.S. courts. It comes into play only when fundamental constitutional rights are being infringed. Before the government infringes the Bill of Rights, it must prove two things: 1) that there is a “compelling governmental interest,” and, 2) that the law is “narrowly tailored” to accomplish that goal by the “least restrictive means.”

This discussion threatened to undermine the entire case of the Commission. For by admitting that “Strict Scrutiny” applies, they thereby admit that the Commission seeks to infringe a fundamental constitutional right – in this case two rights -- both the Freedom of Speech and the Free exercise of Religion. Thus, when Justice Fox asked directly whether the Commission admitted that “Strict Scrutiny” applied, Pat Dixon was hesitant to give a direct answer. So, she asked him again. He continued to dither, even saying that their Brief was written by several people who disagreed! Finally, one of the other justices interjected, “your Brief says that it does!” Only then did he admit plainly that the Commission thinks that “Strict Scrutiny” applies.

With this admission, the Commission can no longer deny that Judge Neely’s fundamental constitutional rights are being infringed. They have admitted that the burden is on them to prove that a judge cannot speak to an ISSUE without “manifesting bias or prejudice” toward and INDIVIDUAL. They must prove that a judge cannot exercise her religion while still remaining fair and impartial towards those of a different faith. Then, they must prove that the judge has not only been compromised in one particular case from which she could recuse herself, but that she is entirely incompetent to serve on the bench at all.

If they manage to prove all those things, it seems that they would prove too much. For then, L.D.S., Christian, Muslim, and Jewish judges must either cease practicing their faith, or be removed from the bench. At the very least, they should be forbidden from speaking their minds. If, on the other hand, the Commission fails to pass the test of “Strict Scrutiny,” the Court would do well to reject the entire argument of the Commission.

Judges are normal people like you and me. They think and speak, believe and act on a variety of issues while being quite capable of remaining impartial and fair even when dealing with those with competing ideas. The integrity of the Judiciary has always depended upon their ability to do this. It does not depend upon thought-police to expel every judge who will not walk in lock-step with the latest group-think. Such is the bedrock of a free and tolerant society.

Further Reading:
Public Discourse: Dissent Will Not Be Tolerated: What The Case Of A Wyoming Judge Means For All Of Us