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Contents
TOO NARROW AND TOO B ROAD: THE CASE AGAINST SECTION 3 OF THE DEFENSE OF MARRIAGE ACT
Brett Atanasio, American University 1

DEADLY SPACES: THE PERILS OF FORMALIZED HUMANITY IN HERMAN MELVILLES B ILLY BUDD
Stephanie Hoskins, Vanderbilt University 31

TO THE HIGHEST ATTAINABLE STANDARD: UPHOLDING THE RIGHT TO HEALTH IN ARMED C ONFLICT
Kathleen Lynch, University of Connecticut 48

THE EFFICACY OF THE INTERNATIONAL CRIMINAL COURT


Rebecca Morris, Emory University 73

THE WESTBORO B APTIST CHURCH, THE RIGHT TO PRIVACY, AND TORT LIABILITY: AN EXAMINATION OF THE SUPREME COURT DECISION IN SNYDER V. PHELPS
Stephanie Westfall, University of Illinois at Urbana-Champaign 91

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Information about the Washington Undergraduate Law Review


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Masthead
Editor-in-Chief Juliya Ziskina Executive Editors Lucas Barash-David Hanna Giuntini Ashley Lindsey Editors Lauren Anderson Daniel Jeon Chelsa Ayers Negheen Kamkar Andrew Bushek Emily Lore Nicky Choi Paula Luu Michael Gant Ty Lyon Sulamita Garbuz Brandon Murillo Anna Grimm Andrei Nedelcu Rachna Hajari Karthik Palappanian Alyssa Harkins Haley Peterson Nicole Hill Henry Seeley Deniz Irgi Anupreet Sidhu Shweta Jayawardhan David Webb Austin Wolfe

Volume VI

WINTER 2013

Issue II

ARTICLES

Too Narrow and Too Broad:


The Case Against Section 3 of the Defense of Marriage Act
Brett Atanasio*
Sixteen years after its enactment into law, Section 3 of the federal Defense of Marriage Act (DOMA) will come before the Supreme Court for constitutional review. Beginning in 2008, Section 3 of DOMA has been subjected to a legal onslaught that has resulted in numerous lower federal courts ruling Section 3 unconstitutional under various forms of scrutiny. The decisions of these courts are shaped by the legal framework created by the Supreme Court in its rulings in Romer v. Evans and Lawrence v. Texas. This article first examines the factual backgrounds of a variety of cases that have challenged Section 3. Second, it analyzes how the courts deciding those cases have addressed the question of whether gays and lesbians are a quasi-suspect class, as well as how each court has applied its conclusion in a different way. Finally, this article argues that the unanimous opinion of the courts that Section 3 of DOMA is unconstitutional reflects how Section 3 cannot withstand any standard of judicial review as a result of the Supreme Courts decisions in Romer and Lawrence. As such, it must be ruled

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unconstitutional under the equal protection component of the Due Process Clause of the Fifth Amendment.
*Brett is a senior at American University in Washington, D.C. He is originally from Port Matilda, Pennsylvania and is currently studying Law and Society in the School of Public Affairs. He is indescribably grateful to Karen Telis for her invaluable advice, comments, and tutelage.

Table of Contents INTRODUCTION 2 I. THE WAR ON SECTION 3 5 II. QUASI-SUSPECT CLASSIFICATION 14 III. SECTION 3S UNCONSTITUTIONALITY AND ITS UNIQUE HARM 19 IV. CONCLUSION 29

INTRODUCTION
Section 3 of the federal Defense of Marriage Act1 and its legal justifications were conceived in a world that no longer exists, and the Supreme Court must declare this discriminatory law unconstitutional under the equal protection component of the Due Process Clause of the Fifth Amendment. Section 3 of the Defense of Marriage Act (referred to hereafter as DOMA) has been subjected to a legal onslaught2 in recent years, which has led to a growing
1

Section 3 of the Defense of Marriage Act, in 1 U.S.C. 7 (1996), provides: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife. 2 The challenges to Section 3 of DOMA include: Aranas v. Napolitano, No. 8:12-cv-01137 (C.D. Cal. filed July 12, 2012) (Regarding Section 3 of DOMA preventing bi-national married same-sex couples from declaring a same-sex spouse a relative for the purposes of immigration proceedings), Bishop v. U.S., No. 04-cv-848 (N.D. Ok. filed November 4, 2004) (Regarding challenges both to Oklahoma law banning same-sex marriage and DOMA), Blesch v. Holder, No. CV 12-1578 (E.D.N.Y. filed April 2, 2012) (Regarding binational couples prohibited from sponsoring their spouses for permanent residency), Cardona v. Shinseki, No. 11-3083 (Vet. App. filed October 13, 2011) (Regarding a Navy veteran denied spousal disability benefits for her wife), Cooper-Harris v. Department of Veterans Affairs, No. CV12-088 (C.D. Cal. filed February 1, 2012) (Regarding a decorated

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consensus among federal courts that Section 3 of DOMA is unconstitutional.3 This emergent agreement is a result of significant changes both in Supreme Court jurisprudence and gay rights activism in the United States and around the world. At the time DOMA was passed, it would be another eight years before same-sex marriage was legal in any part of the United States4 and five years before it was legal elsewhere in the world.5 When DOMA was instituted, there were no legally wed same-sex couples in the world for Section 3 to affect. There are now over 100,000 married same-sex
and disabled veteran of the U.S. Army attempting to obtain military benefits for her wife), Cozen OConnor, P.C. v. Tobits, 2:11-cv-00045 (E.D. Pa. filed January 4, 2011) (Regarding whether a deceased employees biological family or her same-sex partner are entitled to her death benefits), Dragovich v. Department of the Treasury, 4:10-cv-01564 (N.D. Cal. 2012) (Regarding same-sex couples denied access to Californias long-term care insurance program for public employees), Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D. Mass. 2010) (Discussed at greater length infra at 8-9), Golinski v. Office of Personnel Management, 824 F. Supp. 2d 968 (N.D. Cal. 2012) (discussed at greater length infra at 9-10), Hara v. Office of Personnel Management, No. 2009-3134 (Federal Cir. 2010) (Hara was a plaintiff in Gill, but specific issues relating to his case required it to be separated and addressed by another court), In Re Balas and Morales, 449 B.R. 567 (Bankr. C.D. Cal. 2011) (Discussed in greater length infra at 10-11), Roe v. Empire Blue Cross Blue Shield, No. 1:12-cv-04788 (S.D.N.Y. filed June 19 2012) (Regarding whether a self-insured employer, under color of Section 3 of DOMA, may deny health care coverage to a lesbian employees wife), Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal. September 28, 2011) (Regarding the denial by the Citizenship and Immigration Services of a petition to declare one partner in a bi-national married samesex couple an immediate relative. Case dismissed by the District Court because that court felt it was bound by Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)), Massachusetts v. Department of Health and Human Services, 682 F.3d 1 (1st Cir. 2012) (Discussed in greater detail infra at 8-9), McLaughlin v. Panetta, No. 1:11-cv-11905 (D. Mass. filed October 27, 2011) (Discussed in greater detail infra at 11-12), Pedersen v. Office of Personnel Management, No. 3:10-cv-01750 (D. Conn. July 31, 2012) (discussed at length infra at 9), Revelis v. Napolitano, No. 11-cv-1991 (N.D. Ill. September 20, 2012) (Regarding a spouse in a bi-national, married same-sex couple attempting to file a visa petition on behalf of their partner. Dismissed by the District Court for reasons unrelated to the constitutionality of DOMA), Torres-Barragan v. Holder, No. 2:09-cv-8564 (C.D. Cal. April 30, 2020) (Regarding the same issues as Lui and Revelis, dismissed due to Adams v. Howerton), and Windsor v. U.S., No. 12-2335 (2d Cir. October 18, 2012) (Discussed at great length infra at 6-8). 3 See infra at 6-11 where the decisions in various cases are discussed. 4 Massachusetts became the first state to issue marriage licenses to same-sex couples after a ruling by that states Supreme Judicial Court ruled that the denial of marriage to gays and lesbians was a violation of the Massachusetts constitution. Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). 5 BBC News, Netherlands legalises gay marriage . BBC NEWS (September 12, 2000), http://news.bbc.co.uk/2/hi/europe/921505.stm (The Netherlands was the first country/jurisdiction to perform same-sex marriages in 2001).

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couples in the United States alone,6 and ten jurisdictions now allow legal same-sex marriages: Connecticut, the District of Columbia, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, and Washington. Section 3 of DOMA is a product of its timea time without same-sex marriage or any substantive rights for gay and lesbian Americans.7 The legal justifications for Section 3 of DOMA are rooted in a historical moment without same-sex marriage. From 1996 to present day, defenders of DOMA presume that Congress has a rational basis for discriminating against legally married same-sex couples. For good reason, this antiquated rationale has not been able to withstand the scrutiny of federal courts. The Supreme Courts decisions over the past twenty years guide lower courts on how Section 3 of DOMA must be analyzed and have established precedent that makes upholding Section 3 difficult. Evaluation by numerous federal courts has allowed Section 3 to be examined within many contexts; subsequently, the different conclusions reached by these courts ground the legal argument for challenges to the constitutionality of Section 3. Understanding the background of these cases and how each court addressed similar legal questions in different ways is critical to grasping why each of these courts concluded that Section 3 of DOMA is unconstitutional. Section I of this article will provide a history of specific challenges to Section 3 that have progressed the farthest in federal courts, as well as a broader overview of the important procedural history of the challenges to DOMA. This includes the decision of the Department of Justice to no longer defend Section 3 in federal court and the intervention of the Bipartisan Legal Advisory Group (BLAG) as the defendant-intervenors in the challenges to Section 3.

U.S. Census Bureau, Census Bureau Releases Estimates of Same-Sex Married Couples,

WWW.CENSUS.GOV (Sept. 27, 2011),

http://www.census.gov/newsroom/releases/archives/2010_census/cb11-cn181.html. 7 For the purposes of this article, the term gays and lesbians should be read as a general term that includes bisexuals and other sexual orientations and identities that love or are attracted to members of the same sex.

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Section II of this article will analyze how federal courts in the cases discussed in Section I have addressed the legal status of gays and lesbians. The methods by which lower courts have decided this legal issue distinguish how each court approached Section 3 and determined its unconstitutionality. Section III of this article will argue that, in the context of the Supreme Court decisions Romer v. Evans, 517 U.S. 620 (1996) and Lawrence v. Texas, 539 U.S. 558 (2003), Section 3 of DOMA must be ruled unconstitutional under the equal protection component of the Due Process Clause of the Fifth Amendment. These Supreme Court cases and the analysis of the courts discussed in this article show that the limitless harm that Section 3 inflicts on legally married same-sex couples cannot be related to a government interest under any standard of scrutiny. Thus, the Supreme Court must declare Section 3 of DOMA unconstitutional.

PART I: THE WAR ON SECTION 3


The recent onslaught of litigation against Section 3 of DOMA stretches as far back as 2008, with same-sex couples or the widows of such marriages filing suits in federal courts across the country.8 Although many of these cases are still in their earliest phases, U.S. v. Windsor, No. 12-2335 (2d Cir. 2012) cert. granted (U.S. Dec. 7, 2012) (No. 12-307) has been granted certiorari by the Supreme Court for the coming term.9 While Windsor is currently the most noteworthy of the plethora of challenges, various other cases provide important context for the expansive reach of DOMA and demonstrate how lower courts have analyzed the justifications for Section 3.

8 For 9

details on these cases, see infra at 1, Footnote 2. Lyle Denniston, On same-sex marriage, options open, SCOTUSBLOG (Dec. 7, 2012), http://www.scotusblog.com/2012/12/on-same-sex-marriage-options-open/.

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Before discussing individual cases, there are several procedural points that are of extreme importance for understanding the legal history of Windsor and other challenges to Section 3. The first is the decision by the Obama administration to no longer defend Section 3 in federal court. Prior to February 23, 2011, despite President Barack Obamas opposition to DOMA, the Department of Justice had defended Section 3s constitutionality in federal court.10 However, on February 23, 2011, Attorney General Eric Holder informed House of Representatives Speaker John Boehner that the Department of Justice would no longer defend Section 3, and would in fact advocate for courts to overturn the statute.11 This led to the second important procedural note: the intervention of the Bipartisan Legal Advisory Group (BLAG) as the primary defender of Section 3 in federal court. After the decision by the executive branch to no longer defend Section 3, Speaker Boehner and the Republican leadership moved to convene BLAG and take up the defense of Section 3 of DOMA under the leadership of Paul Clement, a prominent conservative attorney and former Solicitor General.12 BLAG proceeded to fill the void left by the Department of Justice, 13 defending Section 3 in every case discussed in this Section, with the exception of In Re Balas and Morales, 449 B.R. 567 (Bankr. Court, C.D. Cal. 2011).14 This intervention has not been without controversy, with challengers of Section 3 arguing that BLAG does not have standing
10

Eric H. Holder, Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act, U.S. DEPT. JUST. (February 23, 2011), http://www.justice.gov/opa/pr/2011/February/11-ag-223.html. 11 Id. (It is also worth noting that Attorney General Holder declared that the Department would advocate for courts to apply heightened scrutiny to classifications based on sexual orientation in courts where the issue of level of scrutiny was still undecided, and outlined the reasons that the Department supports that position.) 12 Catalina Camia, Boehner seeks to divert funds for gay marriage fight, USA TODAY (Apr. 18, 2011), http://content.usatoday.com/communities/onpolitics/post/2011/04/john-boehnernancy-pelosi-same-sex-marriage-/1#.UKqgNY7W420. 13 See , e.g., Unopposed Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives to Intervene for a Limited Purpose. Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y., April 18, 2011). 14 In re Balas and Morales, 449 B.R. at 570.

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to defend the law.15 When the Supreme Court granted certiorari in Windsor, it certified an additional question for consideration: whether or not BLAG has Article III standing16 to defend Section 3. The Court further invited Vicki Jackson, a Professor at Harvard Law School, to argue the issue before the Court.17 While the standing of BLAG was resolved in lower courts, it will continue to be a key issue as the Supreme Court considers Windsor, potentially leaving the Court an opening to avoid ruling on the constitutionality of Section 3 by ruling that BLAG does not have standing to defend the law. Additionally, it is worth noting that while many challenges to Section 3 have arisen in recent years, only seven are discussed in this article. Besides Windsor, selected because it has been granted certiorari by the Supreme Court, the cases described in this Section were chosen either because they demonstrate how federal courts have addressed the legal questions raised in the challenges to Section 3, or because they help illustrate the expansive reach of the harm Section 3 of DOMA inflicts on gay and lesbian Americans. United States v. Windsor is presently the most important challenge to Section 3. Originally, Windsor v. United States, No. 12-2335 (2d Cir. October 18, 2012) was filed in the U.S. District Court for the Southern District of New York.18 The Plaintiff, Edith Windsor, is the widow of Thea Spyer, who died two years after the two were legally married in Canada in 2007.19 Although New York did not legalize same-sex marriage until 2011, from 2009 and on it recognized samesex marriages performed in other states and countries, meaning that
15

See, e.g., Plaintiffs Opposition to the Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives for Leave to Intervene. McLaughlin v. Panetta, No. 1:11-cv-11905 (D. Mass., May 9, 2012). 16 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (In order to have standing under Article III three requirements must be met: a) there must be injury that is concrete and particular that is actual and imminent rather than hypothetical or speculative, b) there must be a causal relation between the injury and the conduct complained of, and c) it must be likely that the court can redress the injury). 17 Lyle Denniston, Extra lawyer named on gay marriage , SCOTUSBLOG (Dec. 11, 2012), http://www.scotusblog.com/2012/12/extra-lawyer-named-on-gay-marriage/. 18 Windsor, No. 12-2335, slip op. at 10. 19 Id ., slip op. at 9.

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Windsor and Spyer were, for the purposes of New York law, legally married before Spyers death.20 When Spyer died, Windsor was left to pay a $363,053 federal estate tax as a result of Section 3 because Windsor was not considered Spyers legal spouse, but if Spyer and Windsor had been an opposite-sex couple Windsor would have been exempted from paying that tax.21 The district court reviewed Section 3 under rational basis scrutiny22, and declared that it did indeed violate the equal protection component of the Fifth Amendments Due Process Clause.23 On appeal, however, the Second Circuit analyzed the case differently and determined that DOMA should be reviewed under heightened scrutiny, which requires that laws that target a quasi-suspect class be substantially related to an important government interest.24 The Second Circuit is the only federal appellate court to apply this stricter test to laws

20 21

Id., slip op. at 14-15. Id., slip op. at 9. 22 Romer v. Evans, 517 U.S. 620, 631 (1996) (While rational basis review has a long and complex history in Supreme Court jurisprudence, it can be explained as the most lenient level of scrutiny that courts can provide in equal protection cases, and instructs courts to uphold the legislative classification so long as it bears a rational relation to some legitimate end). 23 Id ., slip op. at 10 (This legal concept of equal protection under the Fifth Amendments Due Process Clause finds its origin in Bolling v. Sharpe, 347 U.S. 497 (1954). In Bolling, the Court addressed the issue of racially segregated public schools in the District of Columbia, which the Supreme Court had already addressed along Fourteenth Amendment lines in Brown v. Board of Education, 347 U.S. 483 (1954). Because the Court had already determined that the States were constitutionally prohibited from racially segregating public schools, it ruled that it would be unthinkable that the Constitution would impose difference standards of equal protection on the federal government and the States. Id. at 497. In that decision, Chief Justice Warren explained that [t]he Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause, as does the Fourteenth Amendment, which applies only to the states. But the concepts of equal protections and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The equal protection of the laws is a more explicit safeguard of prohibited unfairness than due process of law, and therefore we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to violative of due process. Id. at 499. Since the development of this legal concept, the Court has continued to apply the concept of the equal protection component of the Due Process Clause of the Fifth Amendment in other cases, such as Department of Agriculture v. Moreno, 413 U.S. 528 (1973)). 24 Clark v. Jeter, 486 U.S. 456, 461 (1988).

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discriminating against gays and lesbians.25 After examining the four indicia necessary to determine whether strict or heightened scrutiny should be used,26 the Second Circuit determined that gays and lesbians meet all factors necessary to establish quasi-suspect classification as established in prior case law, as will be discussed in Section II of this article.27 The Second Circuit examined many of the same problems assessed by different courts in other cases, but its analysis of Section 3 differed because it utilized only heightened scrutiny. Because the Second Circuit found that Section 3 could not meet the strictures of heightened scrutiny, it also found Section 3 unconstitutional.28 On December 7, 2012, the Supreme Court granted Windsor a writ of certiorari, setting the stage for a ruling to determine the constitutionality of Section 3. However, despite the fact that Windsor was the only challenge to Section 3 granted certiorari, several other cases merit discussion based on their unique backgrounds and because of the different rationales other courts have used to rule Section 3 of DOMA unconstitutional. In Massachusetts v. U.S. Department of Health and Human Services, 682 F.3d 1 (1st Cir. 2012) the First Circuit Court of Appeals also ruled Section 3 of DOMA unconstitutional.29 Originally filed in 2009 as two separate cases, Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D. Mass. 2010) and Massachusetts v. U.S. Department of Health and Human Services, 698 F.Supp.2d 234 (D. Mass. 2010) were joined on appeal by the First Circuit and became the first cases where writs of
25

Id., slip op. at 24. The four indicia are 1) a history of discrimination, 2) whether the defining characteristic impacts the classs ability to contribute to society, 3) whether the class exhibits obvious, immutable, or distinguishing characteristics that defines them as a class, and 4) political powerlessness. (Windsor v. United States, No. 12-2335, slip op. at 24-34)). In establishing these indicia, the Second Circuit cited Bowen v. Gilliard, 483 U.S. 587, 602 (1987) and City of Cleburne v. Cleburne Living Center, 472 U.S. 432, 440441 (1985). The Court also discussed many cases that qualify the extent to which these indicia need or need not be met for quasi-suspect or suspect classification to be given. Windsor, No. 12-2335, slip op at 24-34. 27 Windsor, No. 12-2335, slip op. at 34. 28 Windsor, No. 12-2335, slip op. at 43. 29 Massachusetts, 682 F.3d at 15-16.
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certiorari were filed with the Supreme Court.30 In Gill, seven samesex couples and widows/widowers who are or were legally married under Massachusetts law sued to receive a variety of federal benefits and advantages provided to married opposite-sex couples, including beneficial federal income tax treatment, Social Security survivors benefits, and issues related to federal employees and retirees.31 In Massachusetts v. U.S. Department of Health and Human Services, the state sued the federal Department of Health and Human Services over concerns about its Medicare and Medicaid programs, as well as its operation of federal veterans cemeteries.32 Noncompliance with DOMA puts the federal funding of these programs and services at risk, and Massachusetts filed the case challenging Section 3 on the grounds that it violates federalism, the Tenth Amendment, and the Spending Clause.33 The District Court for the District of Massachusetts ruled in both cases that Section 3 did indeed violate the equal protection component of the Fifth Amendments Due Process Clause.34 BLAG appealed the decision of the district court to the First Circuit, which upheld the district courts central ruling that Section 3 of DOMA violates the equal protection component of the Fifth Amendments Due Process Clause.35 In June 2012, BLAG filed for a writ of certiorari from the United States Supreme Court.36 The Court declined, choosing Windsor instead. Pedersen v. Office of Personnel Management, No. 3:10-cv-01750 (D. Conn. July 31, 2012) was filed by Gay and Lesbian Advocates and Defenders (GLAD) on behalf of same-sex couples married under the laws of Connecticut, Vermont, and New Hampshire and raised

30

Chris Johnson, Boehner appeals DOMA cases to Supreme Court, WASH. BLADE (June 29, 2012), http://www.washingtonblade.com/2012/06/29/breaking-boehner-appeals-domacases-to-supreme-court. 31 Gill, 699 F.Supp.2d 374. 32 Massachusetts, 682 F.3d at 7. 33 Massachusetts v. U.S. Department of Health and Human Services, 698 F.Supp.2d 234 (D. Mass. 2010) 34 Gill, 699 F.Supp.2d at 397 and Massachusetts, 698 F.Supp.2d at 253. 35 Massachusetts, 682 F.3d at 15-16. 36 Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D. Mass. 2010).

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essentially the same issues as Gill.37 In July 2012, the district court ruled that Section 3 violates the equal protection component of the Fifth Amendments Due Process Clause.38 In her ruling, Judge Vanessa Bryant determined that gays and lesbians should be subject to intermediate scrutiny, but also ruled that intermediate scrutiny need not be applied because Section 3 of DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny.39 From there, Judge Bryant analyzed Section 3 under rational basis review and found the rationales asserted in defense of Section 3 of DOMA to be insufficient to withstand that level of scrutiny, and thus declared Section 3 unconstitutional.40 The District Court for the Northern District of California in Golinski v. Office of Personnel Management, 824 F.Supp 2d 968 (N.D. Cal., 2012) reached a conclusion that was similar to, but distinctly different from, that of the court in Pedersen. Karen Golinski sued on the grounds that, pursuant to Section 3 of DOMA, she was forbidden to add her wife to her own health benefits plan under the Federal Employees Health Benefits Plan, and that such a denial violated her rights under the Due Process Clause of the Fifth Amendment.41 Upon analyzing the question of quasi-suspect classification for gays and lesbians, the district court, like that in Pederson, found that heightened scrutiny should apply to gays and lesbians.42 However, unlike the court in Pedersen, the district court chose to analyze Section 3 using both intermediate and rational basis scrutiny, and determined that it was unconstitutional under both standards.43

37

See Complaint for Declaratory and Injunctive Relief at 2-4. Pedersen v. Office of Personnel Management, No. 3:10-cv-01750 (D. Conn. November 9, 2010). 38 Pedersen, No. 3:10-cv-01750, slip op. at 104. 39 Id. slip op. at 75-76. 40 Id . slip op. at 76-104. 41 Golinski, 824 F.Supp. 2d. at 974-977. 42 Id . at 985-990. 43 Id. at 990-1002.

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There are two other cases of significance that underscore the expansive reach of Section 3 of DOMA. The case In Re Balas and Morales, 449 B.R. 567 (Bankr. C.D. Cal. 2011) arose in a Federal Bankruptcy Court in 2011, while another, McLaughlin v. Panetta, has not been argued at the district court level, but is significant because it concerns Section 3s impact on military benefits. In the case In Re Balas and Morales, two men were legally married under the laws of California44 but were not permitted to file a joint bankruptcy petition.45 As a result of Section 3s definition of spouse, the United States Trustee, who sought to have the case dismissed, argued that Balas and Morales were ineligible to file a joint bankruptcy petition under Section 3 because the debtors were both male.46 The court examined whether some legally married couples are entitled to fewer rights than other legally married couples, based solely on a factor (the gender and/or sexual orientation of the parties in the union) that finds no support in the Bankruptcy Code or Rules and should be a constitutional irrelevancy.47 The court subsequently declared, No legally married couple should be entitled to fewer bankruptcy rights than any other legally married couple.48 The court held that gays should be subject to heightened scrutiny,49 but also held that Section 3 of DOMA failed under both heightened and rational basis review, declaring there is no valid governmental basis for DOMA.50 After the bankruptcy court made its ruling, the Department of Justice announced that it would no longer seek to dismiss joint bankruptcy

44

For more details on the dizzying issue of the legality of same-sex marriage in California, see In Re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384 (2008), Strauss v. Horton, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48 (2009), and Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) 45 In re Balas and Morales, 449 B.R. at 569. 46 Id. at 569. 47 Id. (internal quotations omitted). 48 Id. 49 Id. at 576-577. 50 Id . at 579.

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petitions filed by same-sex couples who are legally married under the laws of their respective states.51 Additionally, some challenges to Section 3 of DOMA deal specifically with its effect on federal military benefits, as demonstrated by McLaughlin v. Panetta, No. 1:11-cv-11905 (D. Mass. filed October 27, 2011). This lawsuit was filed specifically against Section 3 of DOMA and Sections 10, 32, and 38 of the U.S. Code as applied to military benefits.52 The case is currently in the pleading stage; after the complaint was filed in the District Court of Massachusetts the case was delayed by the parties pending the results of Gill and Massachusetts in the First Circuit.53 Since then, BLAG has attempted to intervene in the case to defend Section 3.54 The historical context behind McLaughlin highlights extremely important aspects of Section 3s reach and scope. Section 3s applicability to military benefits is a complex issue that has largely to do with the repeal of the federal Dont Ask, Dont Tell law. Furthermore, the issues in McLaughlin help highlight the fact that the scope of Section 3 of DOMA is continuously expanding, an important factor in examining its constitutionality. These issues will be discussed in greater detail in Section III of this article. These cases all ground the effects of DOMA in various factspecific contexts, demonstrating the myriad of ways Section 3 of DOMA inflicts harm on legally married same-sex couples. Moreover, the decisions of the courts that have ruled on Section 3s

51

Chris Geidner, U.S. Trustee Withdraws Appeal of Gay Couple's Bankruptcy Court DOMA Victory, METRO WEEKLY (July 7, 2011), http://metroweekly.com/poliglot/2011/07/us-trusteewithdraws-appeal-of.html. 52 Complaint for Declaratory, Injunctive, and Other Relief at 1-2. McLaughlin v. Panetta, No. 1:11-cv-11905 (D. Mass. October 27, 2011). The complaint also challenges the definitions of the word spouse in 10 U.S.C 101(f)(5), 32 U.S.C. 101(18), and 38 U.S.C. 101(3). 53 Chris Geidner, SLDN, DOJ Agree to 60-Day Delay in Case Challenging Gay Service Members' Spousal Benefits, METRO WEEKLY (Feb. 16, 2012), http://metroweekly.com/poliglot/2012/02/sldn-doj-agree-to-60-day-delay.html. 54 See Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives for Leave to Intervene, McLaughlin v. Panetta, No. 1:11-cv-11905 (D. Mass., May 1, 2012).

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constitutionality show that Section 3 is unconstitutional under both rational basis review and heightened scrutiny. Despite the many differences between the different cases discussed in this Section, each of these courts ultimately came to the same conclusion: Section 3 of DOMA is unconstitutional.

SECTION II: QUASI-SUSPECT CLASSIFICATION


A critical legal question in all of the recent challenges to Section 3 of DOMA is whether or not gays and lesbians are a quasisuspect class. The unanimous conclusion of the courts that Section 3 is unconstitutional demonstrates that it cannot withstand any level of judicial scrutiny. Suspect classes are those groups that the Supreme Court has determined require the greatest levels of protection from discrimination. First articulated in Korematsu v. U.S., 323 U.S. 214 (1944),55 the Supreme Court ruled, all legal restrictions which curtail the civil rights of a single racial group are immediately suspect [and] courts must subject them to the most rigid scrutiny.56 The Court has repeatedly held that strict scrutiny requires laws be sustained only if they are suitably tailored to serve a compelling state interest.57 In the past, the Court has granted suspect classification when analyzing classifications relating to race, alienage, and national origin, as well as laws that infringe on constitutionally protected rights.58 In determining whether or not a classification is suspect and deserving of strict judicial scrutiny, the Supreme Court has examined the following indicia: 1) whether a class has been historically subjected to discrimination, 2) whether

55

Korematsu, 323 U.S. at 217-218 (In Korematsu, the Court examined an order for all persons of Japanese ancestry to leave a military area, and determined that even under strict scrutiny it is within the war powers of Congress and the Executive branch to exclude those persons in order to prevent espionage). 56 Id . at 216. 57 Cleburne v. Cleburne Living Center, 473 U.S. 431, 440 (1985). 58 Cleburne , 473 U.S. at 441.

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the class has a defining characteristic that bears a relationship to that groups ability to perform or contribute to society, 3) whether the class has obvious, immutable, or distinguishing characteristics that defines them as a discrete group, and 4) whether that group is a minority or politically powerless.59 Between suspect and non-suspect classes, the Supreme Court has recognized a third type of class the so-called quasisuspect class. Laws targeting quasi-suspect classes receive a level of scrutiny that is not as rigorous as strict scrutiny but still requires more than rational basis review, ensuring that such laws are substantially related to an important government interest.60 In the past, the Supreme Court has held that gender, illegitimacy, and the immigration status of children are quasi-suspect classifications that must be considerably related to an important or substantial government interest.61 The question of quasi-suspect classification has influenced how each of the courts have analyzed Section 3. Many of the courts that have heard challenges to Section 3 have considered whether or not gays and lesbians (often lumped together so colorfully as homosexuals) are a quasi-suspect class deserving of heightened scrutiny. The district courts in Pedersen and Golinski, the bankruptcy court in In Re Balas and Morales, and the Second Circuit Court of Appeals in Windsor each determined that gays and lesbians are a quasi-suspect class and laws discriminating against them deserve heightened scrutiny.62 Courts that declared gays and lesbians to be a quasi-suspect class expressed similar rationales. In Windsor, Pedersen, Golinksi, and In
59

Windsor, No. 12-2335, slip op. at 24-34. Citing Bowen v. Gilliard, 483 U.S. 587, 602 (1987) in regards to a history of discrimination, whether the group exhibits a defining obvious, immutable, or distinguishing characteristic, and whether they are politically powerless, and Cleburne, 473 U.S. at 440-441 in regards to the classs defining characteristics and whether these impact a members ability to perform or contribute to society. 60 Clark v. Jeter, 486 U.S. 456, 461 (1988). 61 Craig v. Boren, 429 U.S. 190 (1976) (gender); Lalli v. Lalli, 439 U.S. 259 (1978) (illegitimacy); Plyler v. Doe, 457 U.S. 202 (1982) (immigration status of children). 62 Windsor, No. 12-2335, slip op. at 25-34; Pedersen, No. 3:10-cv-01750, slip op. at 27-75; Golinski, 824 F.Supp. 2d. at 985-990; In re Balas and Morales, 449 B.R. at 576-577.

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Re Balas and Morales it was determined that gays and lesbians have historically endured discrimination, that their defining trait (homosexuality) bears no relation to their ability to contribute to society, that they are a discernable group defined by a non-obvious distinguishing trait, and that they are a politically weak minority.63 Each court took time to carefully consider the question of whether or not gays and lesbians met the criteria to be declared a quasisuspect class, considering both BLAGs arguments against such a classification and the factual and legal history of gays and lesbians in the United States.64 The courts in Windsor, Pedersen, Golinski, and In re Balas and Morales all concluded that gays and lesbians are a quasi-suspect class, but applied their decisions in different ways. The district court in Pedersen determined that while laws discriminating against gays and lesbians deserve heightened scrutiny, it was unnecessary to utilize such a standard in that case.65 Because the district court ruled that Section 3 of DOMA could be found unconstitutional under even the most deferential level of judicial scrutiny, it analyzed Section 3 with only rational basis review.66 Taking a slightly different approach, the courts in Golinski and In re Balas and Morales utilized both heightened scrutiny and rational basis review to

63

Id. For example, BLAG has argued that gays and lesbians are not politically powerless based on several recent victories advancing gay rights, including the legalization of samesex marriage in some states and the repeal of the Dont Ask, Dont Tell law. Pedersen, No. 3:10-cv-01750, slip op. at 67-72. The district court in Pedersen, in its exhaustive review of the suspect indicia, cast aside such an argument, noting that gay rights have also come under attack in certain spheres in recent years and also pointed out that at the time the Supreme Court declared that women deserved greater judicial scrutiny womens rights had progressed much farther than the modest successes of the gay rights movement in recent years. Id. slip op. at 67-74. The history of discrimination against gays and lesbians is a direct result of their relative political powerlessness. The Second Circuit in Windsor points out that one particularly poignant example of the history of discrimination against gays and lesbians is the fact that many states had longstanding criminal prohibitions on homosexual conduct. Windsor, No. 12-2335, slip op. 25-26 (noting Lawrence v. Texas, 539 U.S. 558 (2003)). 65 Pedersen, No. 3:10-cv-01750, slip op. at 75-76 66 Id .
64

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determine that Section 3 failed constitutional scrutiny.67 In Windsor, the Second Circuit became the first federal Court of Appeals to rule that gays and lesbians are a quasi-suspect class, but it also only applied heightened scrutiny and did not discuss whether or not Section 3 would pass rational basis review.68 However, not every court that has ruled on Section 3s unconstitutionality has been willing to declare that gays and lesbians are a quasi-suspect class. Unlike its sister circuit and other lower courts discussed above, the First Circuit ruling in Massachusetts not only declared that it could not rule that gays and lesbians are a quasi-suspect class, but that it would not do so even if it could.69 The First Circuit based this conclusion on its previous decision in Cook v. Gates, 528 F. 3d 42 (1st Cir. 2008).70 As a result of the precedent of Cook,71 the First Circuit felt that it was foreclosed from considering whether or not gays and lesbians met the criteria to be considered a quasi-suspect class.72 Additionally, the First Circuit declared that it would be reluctant to grant heightened scrutiny even if the option was not foreclosed,

67

Golinski, 824 F.Supp. 2d. at 990-1002; In re Balas and Morales, 449 B.R. at 579. No. 12-2335, slip op. at 34-43 69 Massachusetts, 682 F.3d at 9-10 70 Id. 71 In Cook, the First Circuit heard a challenge to the since-repealed Dont Ask, Dont Tell law, and in so doing determined that the Supreme Court had never recognized gays as a suspect or quasi-suspect class. Because of this, the First Circuit joined other Circuits in refusing to interpret the precedents of Romer v. Evans or other gay rights cases as declaring gays and lesbians a suspect class, and refused to break from those guidelines. Cook, Id. at 61. In its decision, the First Circuit read the Supreme Courts previous omissions on whether or not gays and lesbians are a suspect or quasi-suspect class as an implicit decision that they are not. However, such reasoning is not consistent with past Supreme Court rulings. First, it must be noted that the Supreme Court has not, either in Romer v. Evans, 517 U.S. 620 (1996) or Lawrence v. Texas, 539 U.S. 558 (2003), explicitly addressed the issue of whether or not gays and lesbians are a suspect class. Second, in Frontiero v. Richardson, 411 U.S. 677 (1973), the Supreme Court determined that classifications based on sex should be considered suspect and given strict scrutiny. This decision, however, came just two years after Reed v. Reed, 404 U.S. 71 (1971), in which the Supreme Court applied rational basis review to a law that discriminated on the basis of sex. Reed and Frontiero demonstrate that even though the Court has applied lower levels of scrutiny in the past it does not necessarily mean that the Court is implicitly determining that a class is not suspect or quasi-suspect. 72 Massachusetts, 682 F.3d at 9
68 Windsor,

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because of the potentially far-reaching implications such a decision could have.73 The court noted that such a decision could overturn prohibitions on same-sex marriage in many states.74 Unlike the other courts previously discussed, the First Circuit did not in either Cook or Massachusetts examine whether or not gays and lesbians met the criteria to be considered a quasi-suspect class. Instead, the court claimed a lack of guidance from the Supreme Court on the issue in order to avoid it altogether.75 Despite this unique ruling differentiating Massachusetts from the previously discussed cases, the First Circuit still ruled that, even under rational basis scrutiny, Section 3 of DOMA was unconstitutional.76 The Supreme Court may not be able to avoid giving a definitive answer on the issue of quasi-suspect classification for gays and lesbians in the coming term. The Court granted certiorari to United States v. Windsor, the case in which the Second Circuit became the first federal Court of Appeals to declare gays and lesbians a quasi-suspect class. Now that the issue is before the Court, the Justices should take the opportunity to provide guidance to lower courts about what level of scrutiny to apply to laws discriminating against gays and lesbians. The different conclusions reached by lower courts clearly demonstrate conflicting interpretations of current precedent. A ruling from the Supreme Court establishing gays and lesbians as a quasi-suspect class could have an immense
73

Id. at 9-10. Id. at 9-10. 75 Cook, 528 F. 3d at 61 and Massachusetts, 682 F.3d at 9-10 (This reluctance by the First Circuit to declare new suspect and/or quasi-suspect classes does find support in Supreme Court rulings. In Cleburne v. Cleburne Living Center, the Court overturned a decision by the Fifth Circuit Court of Appeals that acknowledged the mentally retarded as a quasi-suspect class.75 In that decision, the Court ruled that when a class is defined by a trait relevant to the states interests the courts have been reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued. Cleburne, 473 U.S. at 441-442. Other cases have demonstrated the Courts reluctance to grant quasi-suspect or suspect classifications, such as Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976), wherein the Court declined to declare the age to be a suspect trait). 76 Massachusetts, 682 F.3d at 15-16
74

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impact on other cases on the docket this term , including Hollingsworth v. Perry, 671 F.3d 1052 (9th Cir. 2012), cert. granted, (U.S. Dec. 7, 2012) (No. 12-144) and Brewer v. Diaz, 656 F.3d 1008 (9th Cir. 2011), petition for cert. filed, (U.S. Jul. 2, 2012) (No. 12-23).77 By requiring heightened scrutiny for laws discriminating against gays and lesbians, laws would have to be substantially related to an important state interest,78 a much higher standard of review than the rational basis review that was previously granted.79 The question of whether or not gays and lesbians are a quasi-suspect class does not decide the issue of Section 3s constitutionality. Regardless, the issue is still an important concept to understand because of the various ways courts have or have not applied quasi-suspect classification in the cases challenging Section 3. Despite differing opinions on the question of quasi-suspect classification, the opinions of the courts demonstrate the same conclusion: Section 3 of DOMA violates the equal protection component of the Due Process Clause of the Fifth Amendment.

SECTION III: SECTION 3S UNCONSTITUTIONALITY AND ITS UNIQUE HARM


Each lower court discussed above concluded that Section 3 of DOMA is unconstitutional, and these decisions were shaped by two Supreme Court cases regarding gay rights, namely Romer v. Evans, 517 U.S. 620 (1996) and Lawrence v. Texas, 539 U.S. 558 (2003). Romer instructs courts on how to scrutinize laws that are too narrow and too broad and makes it difficult for such laws to withstand judicial scrutiny.80 In Lawrence, decided seven years after
77

Hollingsworth v. Perry concerns the constitutionality of Californias Proposition 8, which took away the right of same-sex couples to marry under the California Constitution. Brewer v. Diaz concerns Arizonas unequal treatment of marriages and domestic partnerships in regards to health benefits for state employees. 78 Cleburne , 473 U.S. at 441. 79 See, e.g., Romer, 517 U.S. 620 (1996) or Lawrence , 539 U.S. 558 (2003). 80 Romer, 517 U.S. at 633.

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DOMAs enactment, the Court eliminated moral disapproval of homosexuality as a legitimate governmental interest.81 Together, these two cases have made it impossible for lower courts to justify Section 3 of DOMA under any standard of scrutiny. Romer v. Evans is the first crucial Supreme Court case for understanding Section 3s unconstitutionality. In Romer, the Supreme Court scrutinized an amendment to the Colorado constitution that withdrew any kind of legal protection from discrimination from gay and lesbian citizens. 82 The Court determined that the law was at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board.83 Such laws, as Justice Kennedy wrote in Romer, are not within our constitutional tradition.84 Making it difficult for laws that are too narrow and too broad to be justified even under rational basis review, Romer is instructive to courts analyzing Section 3 of DOMA because Section 3 is similarly too narrow and too broad and imposes a harm only on gay and lesbian Americans. Section 3 of DOMA imposes a harm that is literally limitless on married same-sex couples. This limitless harm contributes to what makes Section 3 too narrow and too broad. The various cases discussed in this article demonstrate the vast breadth of the discrepant, discriminatory, and unfair treatment that Section 3 imposes on gay and lesbian Americans. Windsor raises the issue that married same-sex couples are not eligible to have an estate tax deduction, causing Edie Windsor to owe $363,053 in federal estate tax after her wifes death. 85 In Re Balas and Morales concerns a legally married couple being denied bankruptcy rights granted to other married couples.86 Cases such as McLaughlin v. Panetta raise issues

81

Lawrence, 539 U.S. at 577-578. Romer, 517 U.S. at 626. 83 Id . at 633. 84 Id. at 633. 85 Windsor, No. 12-2335, slip op. at 9. 86 In re Balas and Morales, 449 B.R. at 569-570.
82

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related to Section 3s denial of federal military benefits from samesex military families, treating soldiers who have pledged their lives to the service of their country differently because of their sexual orientation..87 Each individual case addresses a distinct factual background that highlights the ways in which Section 3 places discriminatory and discrepant treatment on gay and lesbian couples, thereby affecting some of their most intimate and personal decisions. Each court, as discussed below, makes a compelling argument that Section 3 is unconstitutional under the equal protection component of the Due Process Clause of the Fifth Amendment. However, in order to fully understand the scope of the harm that Section 3 inflicts on gays and lesbians, one must step back from the individual cases and analyze the breadth and reach of Section 3.When viewed in a broader context, a startling conclusion becomes clear: the breadth of the harm imposed by Section 3 is literally limitless. The reason that Section 3 has a limitless reach relates to the very nature of the statute. Section 3 of DOMA is a meta-law; it is a law that sets a definition for how other laws, rulings, and regulations must be interpreted.88 This statute requires that every federal law, ruling, and regulation from the past, present, and future must be interpreted to exclude married-same sex couples from the terms marriage or spouse. This means that as Congress creates new laws or protections to be granted to married couples as spouses the number of protections, benefits, and rights that are denied to married same-sex couples increases. Evidence of this can be found in the reports of the U.S. General Accounting Office on Section 3. In 1997, shortly after DOMAs enactment, the GAO issued a report identifying 1,049 federal statutes that involve marital status as defined by Section 3.89 In 2004, the GAO issued an update to that
87

Complaint for Declaratory, Injunctive, and Other Relief at 1-2. McLaughlin v. Panetta, Case No. 1:11-cv-11905 (D. Mass., October 27, 2011). 88 1 U.S.C. 7 (1996). 89 Dayna K. Shah, Defense of Marriage Act: Update to Prior Report, GENERAL ACCOUNTING OFFICE (Jan. 23, 2004), http://www.gao.gov/new.items/d04353r.pdf.

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report, determining that due to subsequent changes and additions to federal law, the number of statutes controlled by the definitions established in Section 3 had risen to 1,138.90 The breadth of Section 3 is observably limitless; as long as Congress continues to create new protections, benefits, and privileges, the number of protections, benefits, and privileges denied to same-sex couples will grow. Furthermore, and somewhat ironically, as greater equality is granted to gays and lesbians in the United States by courts, legislatures, or popular vote, the reach of Section 3 of DOMA will encroach on that equality. The most poignant example of this is the repeal of the Dont Ask, Dont Tell (DADT) law. Until the repeal of DADT it was against federal law for members of the military to marry or attempt to marry someone of the same sex, meaning it was impossible for LGBT service members to seek recognition for any same-sex relationship they had.91 However, after the repeal of DADT, it became legal for gays and lesbians to openly serve and seek recognition of their same-sex marriage without the risk of separation from the military. This created an extremely complex problem for the Pentagon and for same-sex military families. Some military benefits were denied to married same-sex military families by the definitions established in Section 3, while others were denied to those families by regulations from the Pentagon.92 Since the repeal of DADT and the emergence of the host of legal challenges to the discriminatory treatment faced by same-sex military families, the Department of Defense (DOD) has reviewed its existing policies to determine which, if any, benefits it may legally extend to same sex couples.93

90 91

Id. 10 U.S.C 654(b)(3) (1993) (Repealed 2011). 92 Jeh Charles Johnson, Carter F. Ham, et al, Report of the Comprehensive Review of the Issues Associated with a Repeal of Dont Ask, Dont Tell, U.S. DEPT. OF DEF. (Nov. 30, 2010), http://www.defense.gov/home/features/2010/0610_dadt/DADTReport_FINAL_20101130( secure-hires).pdf. 93 Leon Panetta, Extending Benefits to Same-Sex Domestic Partners of Military Members, U.S. DEPT. OF DEF. (Feb. 11, 2013), http://www.defense.gov/news/SameSexBenefitsMemo.pdf.

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Despite this progress, there are still a number of benefits that the DOD cannot provide to same-sex military families because of the controlling definitions of spouse and marriage established by Section 3 of DOMA.94 While gay and lesbian members of the military can now marry their partners without violating federal law, Section 3 subsequently makes it impossible for those service members to obtain a range of federal military benefits that are given to opposite-sex military families.95 This disparity between oppositesex and same-sex families applies to a host of benefits, including medical care, housing allowances, survivor benefits, various travel allowances, and various veterans benefits. 96 Ironic as it may be, the repeal of the Dont Ask, Dont Tell law actually changed the scope of the harm that Section 3 inflicts on gays and lesbians, creating a complex legal problem that results in a discriminatory denial of many benefits to same-sex military families. The repeal of the Dont Ask, Dont Tell law demonstrates that even as gays and lesbians become more equal in the United States under federal and state statutes and regulations, the reach of Section 3 will continue to expand and evolve. While the language of Section 3 may initially seem innocuous, analyzing its effects exposes Section 3s broad, constantly changing harm to gays and lesbians. The Supreme Courts ruling in Romer v. Evans provides guidance on how courts must analyze Section 3. In Romer, the Supreme Court observed that Colorados Amendment 2 has the peculiar property of imposing a broad and undifferentiated disability on a single named group.97 Explaining why Amendment 2 was too narrow and too broad, the Court observed that [it] identifies persons by a single trait and then denies them protection across the board.98 Section 3 is similarly too narrow and too broad.
94 95

Id. at 2. Id. at 14-15. 96 SERVICEMEMBERS LEGAL DEFENSE NETWORK (Feb. 11, 2013), http://sldn.3cdn.net/e880f0688a6116ca66_0wm6bna2a.pdf. 97 Romer, 517 U.S. at 632. 98 Id. at 633.

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Like Amendment 2, Section 3 is narrow in that it imposes an harm specifically on gay and lesbian Americans. Furthermore, as discussed previously, this harm is more than broad: the harm that Section 3 inflicts is continuously expanding and changing. Because Section 3 is clearly too narrow and too broad, the Supreme Courts analysis in Romer is instructive as to how courts should scrutinize it. The Courts decision in Romer makes it clear that it is difficult to justify laws that are too narrow and too broad under any level of judicial scrutiny. The Court explained that [in] the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest99 Despite Colorados insistence that the amendment was rationally related to valid state interests, the Court disregarded those justifications on the premise that the sheer breadth of Amendment 2 is so far removed from the reasons offered for it that [it] cannot be explained by reference to those reasons.100 Applying this ruling to Section 3, the question becomes whether or not its broad harm can be justified by a relationship to a legitimate government interest. A wide array of government interests have been asserted to justify Section 3 of DOMA. Originally, in the 1996 Report of the House Judiciary Committee on DOMA, the following government interests were presented to justify Section 3: defending and nurturing the institution of heterosexual marriage, defending traditional notions of morality, and preserving scarce government resources.101 Additionally, in its defense of Section 3, BLAG has asserted the following interests: caution in the face of unknown social change, protecting public fiscal resources, maintaining uniformity in eligibility for federal marital benefits, encouraging responsible procreation, preserving the social link between marriage and children, and encouraging responsible childrearing by opposite99

Id. at 632. Id. at 621. 101 U.S. Congress, House of Representatives, Committee on the Judiciary, Defense of Marriage Act, H.R. Rep. No. 104-664 at 12-18 (1996), http://www.gpo.gov/fdsys/pkg/CRPT-104hrpt664/pdf/CRPT-104hrpt664.pdf.
100

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sex parents.102 Despite this long list of interests allegedly advanced by Section 3, none of the courts discussed in this article have been able to find any of them credible enough to uphold Section 3. No court that has analyzed the constitutionality of Section 3 of DOMA has found its asserted rationales persuasive enough to uphold the statute. For example, BLAGs argument that Section 3 can be justified by Congresss interest in encouraging responsible procreation and child-rearing was found insufficient by lower courts under both rational basis review and heightened scrutiny.103 As the district court in Golinski explained, [d]enying federal benefits to same-sex married couples has no rational effect on the procreation and child-rearing practices of opposite-sex married (or unmarried) couples There has been no showing that DOMA alters any state or federal law governing childbearing, procreation, or family structure.104 For similar reasons, the courts also rejected the proposition that Section 3 nurtures the traditional definition and institution of marriage, with the district court in Golinski stating that BLAG does not explain how denying marriage benefits only to same-sex couples will somehow make marriage between oppositesex couples better The exclusion of same-sex couples from the federal definition of marriage does nothing to encourage or strengthen opposite-sex marriages.105 Because the courts could not find a rational relationship between the effects of Section 3 and these asserted interests, they could not find those alleged justifications valid. The courts also found other asserted rationales insufficient to justify Section 3 of DOMA. The district court in Pedersen held that
102

See, e.g., Brief for Intervenor-Appellant at 38-55, Massachusetts v. Department of Health and Human Services, 682 F.3d 1 (1st Cir. Sept. 22, 2012). 103 Golinski, 824 F.Supp. 2d. at 991-998 (using both heightened scrutiny and rational basis review); Pedersen, id., slip op. at 89-91 (using only rational basis review); Massachusetts, 682 F.3d at 14 (using searching form of rational basis review); In re Balas and Morales, 449 B.R. at 578 (using rational basis review); Windsor, No. 12-2335, slip op. at 41-43 (using only heightened scrutiny). 104 Golinski, 824 F.Supp. 2d. at 998. 105 Id . at 999.

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even if there was evidence to support the notion that Section 3 preserves scarce government funds, more than an invocation of the public fisc is necessary to demonstrate the rationality of selecting [one group] rather than some other group, to suffer the burden of cost-cutting legislation.106 In its analysis of Congresss interest in maintaining consistency and uniformity in eligibility for federal benefits, the district court in Golinski observed that, in all other definitions of marriage besides those which permit same-sex marriage, Congress [has] relied on the various states definitions of marriage without incident, noting that Congress has declined to interfere in variations, both historical and current, in differences in marriage laws regarding the age, familial relation, or race of the parties involved.107 Regarding the argument that Congress has an interest in maintaining the traditional definition of marriage, the court in Golinski noted, the argument that the definition of marriage should remain the same for the definitions sake is a circular argument, not a rational justification.108 Finally, in Massachusetts, the First Circuit could not credit the assertion that Congress had an interest to approach same-sex marriage with caution and freeze the situation.109 The court observed that the other arguments in favor of DOMA make it clear that it was never designed to be a temporary measure.110 Despite the vast host of interests asserted in the defense of Section 3 of DOMA, the federal courts that examined these interests could not credit them enough to uphold Section 3 as constitutional. It should not be surprising that the federal courts have been unable to relate Section 3 to a legitimate government interest. There is only one possible government interest related to the law that
106

Pedersen, No. 3:10-cv-01750, slip op. at 96 (Citing Lyng v. International Union, 485 U.S. 377 (1988)). 107 Golinski, 824 F.Supp. 2d. at 1000-1002. 108 Id. at 999. 109 Massachusetts, 682 F.3d at 15. 110 Id .

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denies same-sex couples benefits ranging from estate tax exemptions to the right to be buried together in military cemeteriesa moral disapproval of homosexuality. This moral disapproval is featured prominently in the 1996 House Report on DOMA and is cited as one of the main interests advanced by the law.111 Indeed, it is not difficult to relate a moral disapproval of homosexuality to the broad harm of Section 3; clearly, inflicting harm on those who engage in supposedly morally objectionable conduct through the denial of rights, benefits, and privileges advances moral disapproval of that group. When Congress passed DOMA in 1996, courts accepted moral disapproval of homosexuality as a legitimate government interest under the guidance of the Supreme Courts decision in Bowers v. Hardwick, 478 U.S. 186 (1986).112 The House Report on DOMA cites Bowers in supporting the argument that DOMA is rationally related to the government interest of supporting a moral disapproval of homosexuality.113 However, the Supreme Courts decision in Lawrence v. Texas explicitly overturned Bowers and determined that moral disapproval of homosexuality cannot justify a law.114 This major jurisprudential shift invalidates the only asserted government interest that could be related to the breadth of Section 3. At the time Section 3 of DOMA was written, it presumed its own rationality largely on the basis of a moral disapproval of homosexuality; however, this justification can no longer serve as a legitimate government interest after the Supreme Courts decision in Lawrence v. Texas. In the absence of this foundational justification, it is
111

U.S. Congress, House of Representatives, Committee on the Judiciary, Defense of Marriage Act, at 12-18 (In discussing its interest in defending and nurturing the institution of marriage, the House Report expresses concerns about a new front in the war on marriage and refers to same-sex marriage as a threat.). 112 In Bowers v. Hardwick, 478 U.S. 186, 196 (1986), the Court observed that laws are constantly rooted in notions of morality, and held that majority sentiments about the morality of homosexuality could serve as a rational basis for a law criminalizing homosexual sodomy. 113 Id . at 16. 114 Lawrence , 539 U.S. at 577-578.

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not surprising that lower courts could not discern a relationship between DOMAs broad harm and the remaining government interests offered in its defense. Much like a stool with a leg broken off, Section 3 cannot support the weight of its own breadth without reliance on moral condemnation of homosexuality. The vast harm that Section 3 inflicts on gays and lesbians cannot be rationally related to a legitimate state interest. In the absence of moral disapproval of homosexuality, the analysis of the lower courts shows Section 3 of DOMA cannot withstand judicial scrutiny. To quote Romer, Section 3s breadth is so far removed from the reasons offered for it that [it] cannot be explained by reference to those reasons. 115 There cannot be a legitimate government interest to satisfy a law that summarily deprives same-sex couples preferential tax deductions, prohibits them from filing joint bankruptcy petitions, and denies same-sex military families the benefits, rights, and privileges that are given to all other military families. This conclusion reflects the consideration of numerous lower federal courts that could not relate Section 3 of DOMA to a government interest under any form of scrutiny. For the reasons discussed above, each of the courts discussed in this article concluded that Section 3 of DOMA is unconstitutional under the equal protection component of the Due Process Clause of the Fifth Amendment. This conclusion was reached regardless of the level of scrutiny utilized. The decisions of these courts follow the precedent set in the Supreme Court decisions Romer v. Evans, which guides how courts are to analyze overly broad laws like Section 3 of DOMA, and Lawrence v. Texas, which eliminated Section 3s foundational justification of moral disapproval of homosexuality. These two decisions create a legal framework that makes it incredibly difficult for Section 3 of DOMA to be upheld. The Courts decision in Lawrence that sealed Section 3s fate, eliminating one of the laws foundational justifications and raising the question of

115

Romer, 517 U.S. at 621.

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whether Section 3s remaining rationales could withstand the scrutiny of courts. The growing consensus of lower federal courts shows that Section 3 of DOMA cannot be rationally related to a legitimate government interest. It is thus unconstitutional. Upon considering the issue in its coming term this spring, the Supreme Court should take into account its own previous decisions as well as the rulings of lower courts and declare Section 3 of the Defense of Marriage Act unconstitutional under the equal protection component of the Due Process Clause of the Fifth Amendment.

CONCLUSION
Sixteen years after its enactment into law, Section 3 of the Defense of Marriage Act will come before the Supreme Court for constitutional review. The world today is unimaginably different for gay and lesbian Americans from the way it was in 1996; at that time, same-sex marriage was not legal anywhere in the world. It is now legal in nine states and the District of Columbia and there are over 100,000 married same-sex couples across the United States.116 Despite these advancements in equality for gay and lesbian Americans, Section 3 of DOMA inflicts a harm on married same-sex couples so broad that it is literally limitless. The law burdens some of the most intimate and personal decisions that same-sex couples can make in regards to their families. In light of this change in the United States regarding same-sex marriage, an onslaught of challenges to Section 3 have emerged, with married same-sex couples fighting for the many federal benefits they are currently denied. Different courts have addressed Section 3 in a variety of ways, their analyses often colored by differing conclusions on the key legal question of whether or not gays and lesbians are a quasisuspect class. However, despite these differing analyses, all of the
116

Census Bureau Releases Estimates of Same-Sex Married Couples, U.S. CENSUS BUREAU (Sept. 27, 2011), http://www.census.gov/newsroom/releases/archives/2010_census/cb11cn181.html.

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courts discussed in this article came to an identical conclusion: Section 3 of DOMA is unconstitutional. The decision that the Supreme Court reaches this spring will be historic, affecting not only the fight for marriage equality but also the larger gay rights movement for years to come. The unique harm that Section 3 of DOMA inflicts on married same-sex couples is limitless in scope and appallingly cruel in its effect. It burdens some of the most intimate and personal decisions that gay and lesbian Americans can make. Laws like Section 3, as Justice Kennedy wrote in Romer, are not within our constitutional tradition.117 After sixteen years, numerous courts have demonstrated that this law cannot withstand constitutional scrutiny of any kind. Consistent with the past decisions of the Supreme Court and as demonstrated by the various analyses of lower federal courts, Section 3 of the Defense of Marriage Act must be declared unconstitutional under the equal protection component of the Due Process Clause of the Fifth Amendment.

117

Romer v. Evans, 517 U.S. 620, 633 (1996)

Deadly Spaces:
The Perils of the Laws Formalized Humanity in Herman Melvilles Billy Budd
By Stephanie Page Hoskins*
The appeal to humanity and the humane used by countless Justices in multiple cases is not defined nor mentioned in the Constitution, allowing various versions and definitions of the word to exist. The problem of the laws inconsistency lies in its wordinglegal opinions often turn into a fight over the meaning of words and their reach. To better understand the law, one must examine the bare bones of legal language itself by turning to literature. Herman Melvilles last publication, the novella Billy Budd, examines the way in which the law has little to do with morality or justice, but instead deals with the form and rules of precedent. Captain Vere, the figure of law in Melvilles tale, upholds the application of law in a straightforward and methodical way that is detached from personal beliefs, morals and obligations. Melville, through Captain Vere, suggests law operates under a kind of formalized humanitya systematic network where warm hearts do not betray heads that should be cool. However, recognizing law as a system where few things are defined and subjective intent is ignored, Melville exposes the impossibility of drawing absolute lines around good and evil, right and wrong.
* Stephanie Hoskins is from Fort Pierce, Florida and currently a junior at Vanderbilt University studying English literature and creative writing. She is in the English Honors Department at Vanderbilt University and has maintained an immaculate academic record while attending Vanderbilt. Hoskins is a prose editor of the Vanderbilt Review, a member of Vanderbilt

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Students Volunteering for Science, and an annual blogger for Hoskins, Turco, Lloyd and Lloyd Law Firm. This paper was composed for a course entitled Literature and Law with legal historian Dr. Colin Dayan. Encouraging students to examine the ways in which legal language affects rulings and laws, Dr. Dayan demonstrated how an analytical close reading of case law can provide further insight into how the law operates.

On June 29, 1972, Justice Harry A. Blackmun offered his dissenting opinion in Furman v. Georgia (1972), which stated, [Supreme Court Justices] should not allow personal preferences as to the wisdom of legislative and congressional action, or our distaste for such action, to guide our judicial decision in cases such as these.1 Justice Blackmun rebuked the concurring Justices for protecting the dignity of the accused and neglecting the dignity of the law, claiming the Supreme Court has an obligation to uphold laws even if the laws raise moral objections. 2 However, this opinion did not sway the majority. In a 5-4 opinion, the Court ruled the death penalty violated the Constitution's ban on cruel and unusual punishment because of its arbitrary and capricious use by various states. Justice William J. Brennan, commonly cited as one of the most influential and liberal of the Supreme Court Justices, 3 expressed his disfavor of the death penalty by stating, Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed persons humanity.4 The Furman v. Georgia ruling resulted in a four year moratorium on all executions in the United States, allowing
1

Furman v. Georgia, 408 U.S. 238 (1972). The use of dignity here is meant as non-degrading. The definition stems from Justice Brennans quote, saying, The primary principle is that a punishment must not be so severe as to be degrading to the dignity of human beings. 3 Benjamin Rybicki, Brennan Wasnt as Eisenhower Expected, N.Y. TIMES, (Aug. 12, 1990), http://www.nytimes.com/1990/08/12/opinion/l-brennan-wasn-t-as-eisenhowerexpected.html (This article about Justice Brennan claimed that President Eisenhower expressed regrets about appointing Brennan for his liberal and influential impact on the Court). 4 Furman, 408 U.S. at 291.
2

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individual states to revise laws and narrow the circumstances under which judges could impose the death penalty. By the end of the decade, capital punishment was reinstated in the case Gregg v. Georgia (1976), and between 1976 and December 5, 2012, 1319 executions were carried out in the United States.5 Although Justice Blackmuns opinion did not influence the ruling in Furman v. Georgia, it seems to have influenced the nations response to capital punishment. Laws were revised to eliminate the arbitrariness of the death penalty that was found in violation of the Eighth Amendment in Furman, and the concern for humanity Justice Brennan expressed was forgotten. Something occurred in the four years between Furman and Gregg that changed the Supreme Courts response to the death penalty. It raises the question of why Justice Brennans concern for humanity did not incite the abolishment of the death penalty as cruel and unusual punishment. The answer lies in the Constitution itself. In all twentyseven ratified amendments, the word humanity never appears. The appeal to humanity and the humane used by countless Justices in multiple cases is not defined nor mentioned in the Constitution, allowing various versions and definitions of the word to exist.6 Thus, it is not surprising that the humanity Justice Brennan uses in Furman v. Georgia differs radically from the humanity used in later death penalty cases, such as in Baze v. Rees.7 Justice Brennan regarded humanity as the preservation of human dignity, an equally ambiguous term, but inferably defined as the protection of mans rights as a member of the human family. 8 Conversely, Chief
5

DPIC: Total Executions, DEATH PENALTY INFORMATION CENTER (2012), http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976.html. 6 See, e.g., In re Kemmler, 136 U.S. 436 (1890), Wilson v. Seiter, 501 U.S. 294 (1991), Furman v. Georgia, 408 U.S. 238 (1972), Baze v. Rees, 553 U.S. 1520 (2008), and Madrid v. Gomez, 889 F. Supp. 1146 (1995) (The terms humane and humanity are repeatedly used in these cases). 7 In relation to Furman, Baze v. Rees similarly challenged the Eighth Amendments ban on cruel and unusual punishment. Death row inmates contended that the lethal injection protocol was unconstitutional; however, the judgment was affirmed in a 7-2 decision. 8 Furman, 408 U.S. at 291 .

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Justice Roberts in Baze v. Rees used the term humane to mean the least offensive execution of the law, stating the government now endorses the most humane and practical method known to modern science of carrying into effect the sentence of death.9 Although both Justices referred to the same Eighth Amendment, there was a contradiction of the term. Justice Brennan claimed it is inhumane to uphold the death penalty while Chief Justice Roberts argued the death penalty is being carried out in a humane way.10 Humane, by definition, means the demonstration of compassion, mercy or kindness; however, as Chief Justice Roberts proves, humane practices do not necessarily require a demonstration of compassion toward the human subject. If legal language no longer associates a concern for the human with the humane, as seen in the growing number of execution cases in the United States, then our law is operating under a form of humanity disassociated from the body it governs. To investigate how or why humanity became disassociated from the humane, one cannot turn to the law itself because United States law is an entity with volition: the law itself never changes, but the way in which lawmakers interpret and uphold it constantly shifts. The problem of the laws inconsistency lies within its wordinglegal opinions often turn into disputes over the intended meaning of words and their scope. Therefore, to better understand the law, one must examine the fundamentals of legal language itself, and literature is the ideal discipline to turn to in order to do so. In the last quarter of the twentieth century, numerous scholars have turned to the interdisciplinary fields of literature and law to extol law-related literature and the literary value of legal documents.11 Both literature and law habituate the world of texts.
9

Baze, 553 U.S. at 1535. For the sake of this argument, humane and humanity will be used interchangeably on the basis that humanity means the quality or state of being humane. 11 Robin West, Literature, Culture, and Law, GEORGETOWN L AW SCHOLARLY COMMONS (2008), available at http://lsr.nellco.org/georgetown/fwps/papers/75/.html.
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Law and literature are both textual, and, like all texts, law requires interpretation. In literature, meaning is attained through the close reading of texts by paying attention to literary devices such as diction, syntax, symbolism and allusion. How one interprets literature can be usefully applied to understanding the interpretation of the law. This method of legal interpretation proves valuable because the Constitution cannot be simply interpreted with what its language seemingly demands or what the framers might have intended. As the legal historian Colin Dayan writes in The Law is a White Dog, More crucial perhaps than the [Courts] decisions themselves is the language in which they are rendered. The compulsion to define grants a license for ambiguity.12 Similar to how literature operates, legal language invites a multitude of interpretations; however, the prospect of multiple interpretations leads to disparities in how the law is upheld. The nineteenth century American writer Herman Melville has been called a socialist, Marxist, and existentialist. Only recently the work of scholar Alfred Konefsky regards Melville as a legal historian.13 Melvilles work presents a unique way of understanding how law functions to shape or constrain social relations and to resolve moral dilemmas. This ability lies in Melvilles creation for the reader the capability of providing ones own meaning and ones own interpretation of what he wants the reader to see or comprehend. Melvilles writings also explore the ways in which the law operates. As Dayan states, Melville is obsessed with the making and unmaking of human materials, the metamorphoses that [straddle] the chasm between persons and thing. 14 Melvilles novella Billy Budd examines the way the law exists independently of morality or justice, and instead deals with the form and rules of

12 13

COLIN DAYAN, THE LAW IS A WHITE DOG 190 (2011). Alfred Konefsky, The Accidental Legal Historian: Herman Melville and the History of American Law, 52 BUFF. L. REV. 1179 (2004). 14 DAYAN , supra note 12, at 115.

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precedent. Billy Budd is a nautical tale about three men: the innocent Billy Budd, the deceitful master-of-arms John Claggart, and the honorable and subservient Captain Vere. When John Claggart falsely accuses Billy Budd of planning a mutiny aboard the Bellipotent, Billy Budd, unable to speak because of a speech impediment, impulsively punches and inadvertently kills his accuser in frustration. While Captain Vere understands Billy Budds true innocence because he recognizes his tragic flaw, his temporary inability to speak, he knows Billy Budd must be punished. After summoning a drumhead court aboard the ship, Captain Vere condemns Billy Budd to hang for his actions. When Captain Vere addresses the drumhead court, he states, For that law and the rigor of it, we are not responsible. Our vowed responsibility is in this: That however pitilessly that law may operate in any instance, we nevertheless adhere to it and administer it.15 Captain Vere, the figure of law in Melvilles tale, expresses the same privilege of legal formalism over human dignity as Justice Blackmun in Furman v. Georgia nearly a century later. Thus, recalling the question of under which interpretation of humanity the law operates, Melville suggests through Captain Vere the law functions within a kind of formalized humanitya systematic network where warm hearts do not betray heads that should be cool.16 The night before Billy Budds execution, Captain Vere visits the condemned man in his cell and neither the narrator nor the reader knows what is said between the two. The narrator states, Beyond the communication of the sentence, what took place at this interview was never known.17 As Captain Vere emerges from Budds cell, the austere devotee of military duty, letting himself melt back into what remains primeval in our formalized humanity, may in end have caught Billy to his heart, even as Abraham may
15

HERMAN MELVILLE, BILLY BUDD, SAILOR AND OTHER STORIES 362 (Penguin Classics 1986). 16 Id. 17 MELVILLE, supra note 15, at 366.

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have caught young Isaac on the brink of resolutely offering him up.18 The phrase letting himself melt back into what remains primeval in our formalized humanity suggests that while in Budds cell, Captain Vere voiced the sympathy and compassion for Budd that the law would not let him express. He displayed the humanity Justice Brennan argued for in Furman v. Georgia. When Captain Vere exits the cell, he melts back not into his but our formalized humanity. Melvilles use of our instead of his implies that Melville believes society as a whole is governed by this formalized humanity; however, mimicking the ambiguous language of the law, Melville never explicitly defines what he means by formalized humanity. Similarly, Melville uses melt, not freeze, to describe a transformation from a softened state to a hardened state suggesting that the definition of formalized humanity cannot be consolidated into one solid meaning, but rather exists as a complex continuum. If Captain Vere embodies the law, then the Captains characterization provides insight into Melvilles description of law itself. When the narrator introduces Captain Vere, the reader learns that he is often called Starry Vere because he would at times betray a certain dreaminess of mood.19 Standing at the bow of the ship, Captain Vere would absently gaze off at the blank sea. At presentation to him then of some minor matter interrupting the current of his thoughts, he would show more or less irascibility; but instantly he would control it.20 The diction of starry, dreaminess, and absently gaze suggests Captain Vere remains distanced and disassociated from those around him. The irritation he expresses when disrupted by his crew indicates he prefers isolation and physical separation from those he manages. Following from this characterization, it can be seen that Melville perceives the law as disassociated from the body it governs. Today,
18 Id. at 19

367. Id. at 310. 20 Id.

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the disassociation of the law from the body it governs is seen in the exponential increase of solitary confinement sentences, the civil death past and present criminals experience within society, and literally in the current protocol of lethal injection in which officials administer the fatal serum from separate rooms through extensive intravenous tubing.21 Melvilles concept of laws disassociation from the body is rooted in historical context. Eight months before Melville finalized Billy Budd, the United States condemned its first criminal to death by electrocution in the highly publicized Kemmler case.22 William Kemmler was sentenced to death by electrocution in the state of New York after being convicted of murder. Kemmler challenged the sentence by claiming death by electrocution violated the Eighth Amendments ban on cruel and unusual punishment. The Court denied the inmates petition for a writ of habeas corpus and maintained that electrocution did not violate the Eighth Amendment.23 The day after the execution, The New York Times published a front page article describing Kemmlers electrocution as the most revolting of circumstances that placed to the discredit of the State of New York an execution that was a disgrace to civilization.24 Several months later, one of the attending physicians selected to conduct the autopsy on Kemmler published an impassioned appeal to abolish the death penalty, stating, When the harrowing details of the death chamber were tingled along the telegraph wires of the country, and their impulses were throbbed through the cable, the entire civilized world viewed the scene with

21

DAYAN, supra note 12, at 65-66; Baze v. Rees, 553 U.S. 1520, 1535 (2008). In re Kemmler, 136 U.S. 436 (1890). (This case arose from the first execution by electrocution in New York. The defendant argued that his execution would constitute cruel and unusual punishment under the Eighth Amendment, and that the Eighth Amendment should be incorporated against the States. The Court ultimately rejected the incorporation argument). 23 See id. 24 Bruce Franklin, Billy Budd and Capital Punishment: A Tale of Three Centuries, 69.2 AM. LITERATURE . 345 (1997).
22

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astonished horror.25 Melville, a resident of New York at the time, undoubtedly was familiar with the case and its abhorred aftermath. Although Melville does not directly reference the Kemmler case in Billy Budd, the method of the Courts argument is inherently found in the characterization of Captain Vere. The Courts argument in Kemmler is woven with threads of progress and sciencean appeal to the technology and intellect of an advancing society. Through the repeated use of the word progress in the Justices opinions and the constant reminder of the barbaric methods of capital punishment used in the past, the argument in Kemmler claims electrocution cannot be cruel and unusual punishment because it is the most advanced method of execution.26 Captain Vere embodies the same privilege of science and intellect over human nature and sentiment. In continuing Captain Veres description, the narrator states, He had a marked learning toward everything intellectual. He loved books, never going to sea without a newly replenished library, compact but of the best. The isolated leisure . . . never was tedious to Captain Vere. 27 While at sea, Captain Vere secludes himself in his cabin and readsanother testament to his distance from those he manages. He prefers everything intellectual and he enjoys reading books treating of actual men and events no matter of what erahistory, biography, and unconventional writers like Montaigne, who, free from cant and convention, honestly and in the spirit of common sense philosophize upon realities.28 Captain Vere immerses himself in realismhe concerns himself with the actuality of events and not in abstractions such as passion and sentiment. Captain Veres interest in intellectual and scientific realism while at sea emphasizes his disdain for nature and its inclusion in the law. The narrator supports this notion in an aside when he states, I am not
25

Id. See In re Kemmler, 136 U.S. 436 (1890). 27 MELVILLE, supra note 15, at 312. 28 Id.
26

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certain whether to know the world and to know human nature be not two distinct branches of knowledge, which while they may coexist in the same heart, yet either may exist with little or nothing of the other.29 Knowledge and human nature may coexist, but they are not dependent upon one another. In the same way, Captain Vere separates knowledge and naturereflective of law distancing itself from the body it governs by privileging machinated knowledge above human sentiment and nature. The laws separation of knowledge and nature is further developed in Captain Veres address of the drumhead court in which he actively asserts the courts need to ignore nature and rely solely upon law. Captain Vere informs his appointed jury30 that they are not to act as causists or moralists, [because] it is a case practical, and under martial law practically to be dealt with.31 The diction of practical in juxtaposition with causists and moralists emphasizes Captain Veres systematic, or formalized, approach to law. Captain Vere continues, saying, How can we adjudge to summary and shameful death a fellow creature innocent before God, and to whom we feel to be so?Does that state it aright? You sign sad assent. Well, I too feel that, the full force of that. It is Nature. But do these buttons that we wear attest that our allegiance is to Nature? No, to the King.32 Captain Veres argument affirms that the officers owe their allegiance not to Nature, but entirely to King George III, the reigning monarch at the time. However, Captain Veres outright rejection of nature within law establishes an important facet of law that Melville argues against: the law is divided into rigid binaries. Captain Vere perceives the world in black and whitethere is always a guilty and innocent partyno grey area of intent exists. This is detectable
29 30

Id. at 324. Although tangential to this argument, it is interesting to note how Captain Veres drumhead court resembles the appointment of U.S. Supreme Court Justices. Supreme Court Justices are not democratically elected, but are appointed by the President and can have lifetime terms. 31 MELVILLE, supra note 15, at 361. 32 Id.

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in Veres statement that although Budd is innocent before God, for he was forced to act by Claggarts false accusations and did not intend to kill him, he is not innocent before the law. Further, he informs the drumhead court that they are to act as agents of the law, for the law and the rigor of it, [they] are not responsible. 33 Acting as instruments of the law, the drumhead court embodies the same machination of the Kemmler caseits members function as cold, unfeeling, and unnatural channels of the law. Captain Veres avowal to uphold only the objectivity of the law is echoed in Justice Whites concurring opinion in Wilson v. Seiter, when he claims [Justices] examine only the objective severity, not the subjective intent of government officials. 34 Commenting upon the laws objective application, legal scholar and author Robert Cover in Justice Accused maintains that in law, there is a choice between the demands of a role and the voice of conscience.35 However, as Melville articulates through Captain Vere, the law is ignorant of the voice of consciencea disregard that existed not only in his time but continues to exist today.36 Captain Veresor the lawsformalized humanity detaches itself from personal beliefs, morals and obligations and instead upholds the application of law in a straightforward, systematic, right-andwrong way. While Melville criticizes the laws formalized humanity through Captain Veres characterization and action, Melville argues for a different kind of humanity represented by Billy Budd. A close reading of Billy Budds characterization suggests that Melville is arguing for an empathetic and malleable form of humanity. At the start of the narrative, Budd is involuntarily transferred from a ship

33

Id. at 362. Wilson v. Seiter, 501 U.S. 294, 309 (1991). 35 ROBERT COVER, JUSTICE ACCUSED : ANTISLAVERY AND THE JUDICIAL PROCESS 5 (1975). 36 See DAYAN , supra note 12, at 163 (The laws ignorance of the voice of conscience has been an ongoing phenomenon traced in the progression of capital punishment from In re Kemmler (1890) to Baze v. Rees (2008). This phenomenon is also found in slave law in which slaves were not considered to have a legal mind or subjectivity).
34

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named the Rights-of-Man to a ship named the Bellipotent.37 Melville blatantly makes it clear that Budd moves from a sphere in which he has rights to a sphere inundated with violence and power. This relocation gains significance in the context of Justice Brennans claim in Furman v. Georgia that when a man is sentenced to death, he loses the right to have rights.38 In one of the first descriptions of Billy Budd, the reader learns that he has a rather full face, humanely intelligent in expression.39 Several pages later, the narrator adds that Budd showed in face that humane look of reposeful good nature which the Greek sculptor in some instances gave to his heroic strong man, Hercules. 40 The terms human and humane are frequently used to describe the sailornoticeably the only character within the narrative to be associated with those terms. Again, Melville does not offer an explicit definition of Budds humanity, but the phrase reposeful good nature and Budds tendency to not deal in double meanings and insinuations of any sort,41 suggests that Budds humanity is not shrouded behind the cold binaries that mask the laws formalized humanity. Positioning Budd directly against Captain Vere, who deals in double meanings42 when he morally perceives Budd as innocent but legally guilty, Melville asserts the humanity that Budd represents does not force the law to choose between personal and legal obligations. Billy Budd represents a humanity that contrasts the manufacturable thing known as respectability43 in Captain Vere. The narrator states that Budd always did his duty faithfully; but

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The narrator states the Rights-of-Man was named after Thomas Paines book that defends individual liberties and human rights that inspired the French Revolution. Bellipotent means mighty in war and armipotent. A strictly run and hierarchically organized war ship, the Bellipotent forces Budd to join the war effort against the French. 38 Furman v. Georgia, 408 U.S. 238 (1972). 39 MELVILLE, supra note 15, at 294. 40 Id. at 299. 41 Id. at 298. 42 Id. 43 Id. at 301.

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duty is sometimes a dry obligation, and he was for irrigating its aridity, whensoever possible, with a fertilizing decoction of strong waters.44 Budds ability to bend and stretch the dry obligation of duty juxtaposes the narrators description of Captain Vere as a dry and bookish gentleman.45 If Captain Vere represents a rigid humanity, void of the fluidity of interpretation, then Budd represents a humanity that softens the rigid distinctions of right and wrong to make room for more subjective interpretations of the law. The contrasting humanities represented by Captain Vere and Billy Budd exist on opposing ends of a continuum; however, their relationship becomes more nuanced with the incorporation of the humanity that John Claggart represents. Melville describes Claggart, the Bellipotents master-of-arms and the man whom Budd murders, as having something defective or abnormal in [his] constitution and blood.46 From the beginning, Claggart is negatively portrayed, and the detail of possessing something defective in his blood implies he is naturally prone to hostility and violence. This natural defect suggests Claggart represents a more primitive or barbaric portrayal of humanity. Similarly, the narrator states, Claggart, in whom was the mania of evil nature, not engendered by vicious training or corrupting books or licentious living, but born with him and innate.47 His intrinsic wickedness is unfounded and seemingly limitless. He falsely accuses Billy of plotting a mutinyan act he knew would be punishable by death. Melvilles incorporation of Claggarts barbarity is significant because in numerous cases contesting the ban on cruel and unusual punishment under the Eighth Amendment, Justices use the brutality of the past to validate their endorsement of more progressive cruelties in the present. As recently as 2008 in Baze v.

44 45

Id. at 294. Id. at 312. 46 Id. at 314. 47 Id. at 326.

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Rees, the Court claimed that lethal injection did not violate the Eighth Amendment because the Amendment forbids punishments of torture [...] and all others in the same line of unnecessary cruelty, such as disemboweling, beheading, quartering, dissecting, and burning alive.48 By juxtaposing lethal injection with the savage practices of the past, the Court argued the current method of execution was humane, even though the comparison is logically unsound. Melville imitates the Courts method of reasoning. Billy Budd represents the humanity that should govern law, Captain Vere represents the humanity that does govern law, and Claggart represents the humanity that once governed the law. After Budd kills Claggart, the narrator describes Captain Veres reaction: Slowly he [removed his hand from] his face; and the effect was as if the moon emerging from eclipse should reappear with quite another aspect than that which had gone into hiding.49 When Captain Vere removes his hand from his face, he looks at both Budd and the motionless body of Claggart. He views both men and his attitude changes: The father in him, manifested towards Billy thus far in the scene, was replaced by the military disciplinarian.50 Claggarts dead body changes Captain Veres positionhis position transforms in relation to Claggart. In the same way the Court justified the use of lethal injection in Baze v. Rees by illustrating how the current protocol relates to the atrocities of the past, Captain Vere views the actions of Budd differently in relation to Claggarts body. The characterization of Captain Vere places his humanity in between the extremes represented by the humanities of Budd and Claggart. Since he exists between both extremes, Captain Vere embodies a mix of both the good and sensitive humanity of Budd and the primitive and barbaric humanity of Claggart. Even though
48

Baze v. Rees, 553 U.S. 35, 423 (2008). MELVILLE, supra note 15, at 350. 50 Id.
49

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Captain Vere considers Budd a victim of Claggarts fabricated accusations, he punishes the innocent Budd for the death of the master-of-arms. Vere would appear to be paralyzed by his conflicting inclinations because he exists between the two forms of humanity. As if walking the figurative line between Budd and Claggart, the narrator states, To pass from a normal nature to [Claggart] one must cross the deadly space between. And this is best done by indirection.51 If Captain Vere occupies the position between Budd and Claggart, then Captain Vere embodies the deadly space between. It is within this space that law, or more specifically, legal language, breaks down and becomes muddled. Melvilles use of deadly space to describe the position of the law is just as ambiguous as the law he critiques. It is within this dead space that formalized humanity exists, suggesting Melvilles definition of formalized humanity is equally as ambiguous as societys definition of the humanity it claims to uphold. The ambiguity of legal definition is precisely what Melville is trying to prove. In an aside, the narrator shows the complications of trying to discern something that is ambiguous: Who in the rainbow can draw the line where the violet tint ends and the orange tint begins? Distinctly we see the difference of the colors, but where exactly does the one first blindingly enter into the other? . . . But in some supposed cases, in various degrees supposedly less pronounced, to draw the exact line of demarcation few will undertake, though for a fee becoming considerate some professional experts will.52 In the same way that one discerns the violet tint from the orange tint in the rainbow, Captain Vere understands Budds innocence before and his guilt before law. Torn by the decision he needs to make regarding Budds sentence, Captain Vere exclaims,
51 52

Id. at 324. Id. at 353.

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Struck dead by an angel of God! Yet the angel must hang!53 In a system of law where few things are defined and subjective intent is ignored, it is impossible to draw absolute lines around good and evil, right and wrong. Just like the rainbow has no clear boundaries, formalized humanity operates in a convoluted system of balances. As Colin Dayan asserts, [There are] recognizable forms of punishment that are activated for people of a certain nature or characterthose labeled unfit, barbaric, subhuman, or the worst of the worst. 54 Law functions within a societal system in which some people are privileged and others are deemed disposable. The victim in death penalty cases is advantaged, while oftentimes the accused, innocent or guilty, is disposable. However, the laws that define who is privileged and who is disposable are obscured through a legal language that invites multiple interpretations. Words within laws are strained and twisted.55 The ambiguity of legal language is the fire that powers formalized humanity and enables it to extract certain persons from society while protecting others. It is under this formalized humanity that Billy Budd is victimized and condemned. In an articulation of how wording can condemn a man, the narrator states that a naval chronicle of the time published a story concerning Budds fate. The account claims that John Claggart, the ships master-of-arms, discovering that some sort of plot was incipient among an inferior section of the ships company, and that the ringleader was one William Budd; he, Claggart [] was vindictively stabbed to the heart by the suddenly drawn knife of Budd.56 Choosing to end his tale in the same way in which some interpretations of legal language pervert and manipulate the function of the law, Melville ironically shows how the laws
53

Id. at 352. DAYAN, supra note 12, at 63. 55 This concept is illustrated in the different interpretations of humane expressed by Justice Brennan and Chief Justice Roberts in the opening paragraphs. 56 MELVILLE, supra note 15, at 382.
54

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formalized humanity can not only condemn the innocent, but it can, when clothed in ambiguous language, distort the truth and label victims with perpetual stigmatization.

To the Highest Attainable Standard:


Upholding the Right to Health
By Kathleen Ann Lynch*
This article explores the protection of the right to health in the context of armed conflict. It begins with a discussion on the distinctions between international human rights law and international humanitarian law in protecting health, with an argument for the joint applicability of these two bodies of law in armed conflict scenarios. Using the current situation in the Democratic Republic of Congo as a case study, the author argues that the right to health is non-derogable, even in the exigent circumstances of armed conflict.
* Kathleen Lynch is a senior at the University of Connecticut, majoring in history and anthropology with a minor in biological sciences. She is a member of the University of Connecticut Honors Program, Alpha Lambda Delta Honors Society, Phi Kappa Phi Honors Society, Phi Alpha Theta History Honors Society, Lambda Alpha Anthropology Honors Society, and a University of Connecticut New England Scholar. In addition, Kathleen is President of the University of Connecticut Taekwondo team, volunteers with Habitat for Humanity, writes for the Honors Council Newsletter, The Honorable Mention, and works as a research assistant in the University of Connecticut Infant and Child Development Lab. In her free time, Kathleen loves to go hiking with her friends and seeing new places. She hopes to one day visit all 50 states and travel across the globe. After graduation, Kathleen plans on attending graduate school.

Table of Contents INTRODUCTION 49 I: DISTINCTIONS BETWEEN INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL HUMAN RIGHTS LAW 51 II: THE RIGHT TO HEALTH IN INTERNATIONAL HUMAN RIGHTS LAW 53 III. PROTECTION OF HEALTH IN INTERNATIONAL HUMANITARIAN LAW 58

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IV. THE JOINT APPLICABILITY OF IHL AND IHR IN ARMED CONFLICT: LEGAL BASIS 61 V. CASE STUDY: UPHOLDING THE RIGHT TO HEALTH IN THE DEMOCRATIC REPUBLIC OF CONGO 64 VI. THE RIGHT TO HEATH AS NON-DEROGABLE: PRACTICAL IMPLICATIONS 68 VII: CONCLUSION 71

INTRODUCTION
Jeanne was only 15 years old when they came for her.1 Six armed men burst through the door of her home, brutally murdered her uncle, and dragged her outside. The men stripped off her clothes, spread her arms and legs apart, and tied her to a tree. Then the rape began. She was tortured for an entire month, tied to that tree, repeatedly violated until the men had no further use for her. Afterwards, Jeanne was discarded by the side of the road beaten, bloody, and unsupported by a family too ashamed to care for her. This is the story of conflict in the Democratic Republic of Congo, described by one activist as an economic war fought on the bodies of women.2 Here, rape is used as a tactic of war. Since the year 2000, at least 200,000 cases of sexual violence have been recorded, yet it is suspected that the real number is much higher due to the stigma attached to sexual abuse victims.3 Those who survive the ordeal are left in dire need of medical and psychological treatment. Taken in by a hospital set up by a local NGO, Jeanne has undergone five operations as of October 2008, yet still has not healed.4 However, many do not even reach a treatment center, and they are

John Blake, Woman: They wanted to destroy my body and spirit, CNN, Oct. 23, 2008, http://edition.cnn.com/2008/WORLD/africa/10/15/congo.women/index.html#cnnSTCT ext. 2 Id. 3 UN Refugee Agency Dismayed by Impunity for Endemic Rape in DR Congo, U.N. NEWS CENTRE, Apr. 23, 2010, http://www.un.org/apps/news/story.asp?NewsID=34458. 4 Blake, supra note 1.

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left undiagnosed, infected, and marginalized.5 The conflict in the Democratic Republic of Congo, concentrated especially in the countrys eastern provinces, is considered one of the worlds worst humanitarian crises.6 According to UNICEF, the conflict has cost more lives than any other war since World War II.7 Protecting the victims of this conflict falls under the direct jurisdiction of international humanitarian law (IHL), which regulates the conduct of warfare. One of the core tenets of this body of law is the principle of distinction, which obliges belligerent parties of the conflict to target solely military objectives, and minimize civilian casualties.8 However, while international humanitarian law is set up to protect civilians from harm, it does not uphold their rights to be free from harm. Therefore, this article will emphasize that the application of both IHL and international human rights (IHR) is paramount to maintaining the human dignity and health of civilians in times of armed conflict. The first section will clarify the differences between IHL and IHR, followed by a discussion of the context of the right to health in each body of law. Then, the article will determine the legal basis upon which IHL and IHR interact within armed conflict scenarios. Through the examination of the case study of the Democratic Republic of Congo, the article will demonstrate that the States obligation to protect and uphold the right to health does not cease in times of war. Although armed conflict is primarily the domain of international humanitarian law, the right to health is non-

U.N. Human Rights Council, Combined report of seven thematic special procedures on technical assistance to the Government of the Democratic Republic of the Congo and urgent examination of the situation in the east of the country, 10th Sess., U.N. Doc. A/HRC/10/59 (Mar. 5, 2009) [hereinafter HRC Combined Report]. 6 Kirsten Johnson et al., Association of Sexual Violence and Human Rights Violations with Physical and Mental Health in Territories of the Eastern Democratic Republic of the Congo, 304.5 JAMA: J. AM. MED. ASSN. 553 (2010). 7 Blake, supra note 1. 8 Pierre Perrin, The Right to Health in Armed Conflict, in 3 SWISS HUMAN RIGHTS BOOK 157, 161 (2009), available at http://www.swisshumanrightsbook.com/SHRB/shrb_03_files/09_453_Perrin.pdf.

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derogable,9 regardless of circumstance. Finally, by analyzing the implications of the right to health as non-derogable, this article will serve as inspiration for policymakers and international actors in armed conflict scenarios.

PART I: DISTINCTIONS BETWEEN INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL HUMAN RIGHTS LAW
International humanitarian law is the body of law that governs the conduct of war.10 This includes limitations on the use of certain weapons, regulations for the treatment and capture of wounded soldiers, and rules for safeguarding civilian populations.11 The main body of treaties in IHL is a series of four Geneva Conventions and Protocols adopted in 1949, with two supplementary treaties negotiated in 1977 as Additional Protocols. The Fourth Geneva Convention in particular addresses the protection of civilians in times of war. The rule of non-combatant immunity is further codified in the First Additional Protocol of 1977, Article 51, which provides rules for the specific protection of civilians.12 It is important to note that norms of humanitarian law are not subject to derogation, as they are specifically designed for the exceptional circumstances of war and armed conflict.13 Therefore, any State Party to the Geneva Conventions engaged in an act of warof both an international and non-international character14 is not justified in violating the protocols for the treatment of non-combatants under any circumstance.

In this article, derogation refers to a States ability to decline to uphold specific provisions of a treaty due to exigent internal circumstances and emergencies. 10 LOUIS HENKIN ET AL ., HUMAN RIGHTS 224 (2d ed. 2009). 11 Id. at 223. 12 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, art. 51, 1125 U.N.T.S. 3 (June 8, 1977) [hereinafter Protocol I]. 13 HENKIN ET AL ., supra note 10, at 223. 14 See Protocol I, supra note 12.

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International human rights, in contrast, are applicable to all human beings at all times, not just within the context of warfare. Under Article 1 of the United Nations Charter, states recognize that it is the purpose of the U.N. to achieve international cooperation [] in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction.15 However, the Charter itself does not define human rights. Rather, this concept is elaborated by a group of three documents collectively known as the International Bill of Rights.16 The Universal Declaration of Human Rights was adopted by the General Assembly in 1948 as a nonbinding statement of principles that laid the foundation for the human rights movement.17 These principles were later codified into two separate, legally binding treaties. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) were both adopted in 1966, and entered into force in 1976. Economic, social, and cultural rights are considered positive rights whereby the State is obligated to take action to uphold the rights. Civil and political rights, however, are considered negative rights, whereby the State is obligated to refrain from certain actions. Unlike the body of IHL, the ICCPR and two other prominent treaties which protect civil and political rights (the European Convention on Human Rights and the American Convention on Human Rights) contain derogation clauses for times of national emergency.18 For example, Article 4.1 of the ICCPR states that: In time of public emergency which threatens the life of the nation[States Parties] may take measures derogating from their obligations under the present Covenant to the extent
15

HENKIN ET AL ., supra note 10, at 214. Id. at 215. 17 Id. at 216. 18 International Norms and Standards Relating to Disability, U.N.ORG (last updated Oct. 2003), http://www.un.org/esa/socdev/enable/comp210.htm [hereinafter International Norms].
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strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law.19 Even so, certain rights are considered jus cogens norms,20 making them non-derogable. In the three conventions listed above, there are four common non-derogable rights: the right to life, the right to be free from torture and other inhumane or degrading treatment or punishment, the right to be free from slavery or servitude, and the right to be free from retroactive application of penal laws. 21 Furthermore, Article 4.1 of the ICCPR states that derogation is only permissible if such measures are not inconsistent with other obligations under international law.22 These obligations include the positive rights enumerated in the ICESCR. Although Article 4 of ICESCR contains a provision which allows states to subject positive rights to limitations, there is no explicit mention that the rights can be derogated.23 Therefore, the States responsibility to uphold its positive obligation to protect economic, social, and cultural rights such as the right to health can trump the power of states to derogate from rights under the ICCPR, even in times of war.

PART II: THE RIGHT TO HEALTH IN INTERNATIONAL HUMAN RIGHTS LAW


Establishing where the right to health appears in the body of international human rights law is vital in asserting its importance as non-derogable during armed conflict. It is first
19

International Covenant on Civil and Political Rights, art. 4.1, Dec. 16, 1966, S. Treaty Doc. No. 95-20, (1967), 999 U.N.T.S. 171. 20 Jus cogens refers to a fundamental principle of international law from which no derogation is permitted, regardless of circumstance. 21 International Norms, supra note 18. 22 International Covenant on Civil and Political Rights, supra note 19, at art. 4.1. 23 International Covenant on Economic, Social and Cultural Rights, art. 4.1, Dec. 16, 1966, S. Treaty Doc. No. 95-19, (1967), 993 U.N.T.S. 3.

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present in Article 25.1 of the Universal Declaration of Human Rights, which states, everyone has the right to a standard of living adequate for the health and well-being of himself and his family.24 A similar clause in Article 12.1 of the ICESCR declares, States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.25 Based on these two documents, it is clear that the right to health is not analogous to the right to be healthy.26 Rather, they speak to the highest attainable standard of health for the individual, which varies based on physiological and socioeconomic conditions. For instance, a person cannot claim that the state has violated their right to health solely on the basis that they are ill, for individuals have problems with both physical and mental health even in states with excellent healthcare infrastructure. However, if the State creates conditions that make it impossible for an individual to address or overcome their health issues, then they are failing to uphold the right to health. Therefore, both documents place obligations on States Parties to create conditions where the maintenance of good health is possible. This means that the right to health is an inclusive right, placing positive obligations on states to uphold the underlying determinants of health.27 These include, but are not limited to, access to food and adequate nutrition, clean drinking water, adequate housing, and healthy working conditions.28 The right to health, then, encompasses more than simply access to quality medical care, but also the myriad of resources which support a healthy standard of living.

24

Universal Declaration of Human Rights, G.A. Res. 217A (III), art. 25.1, U.N. Doc. A/810 (1948). 25 International Covenant on Economic, Social and Cultural Rights, supra note 23, at art. 12.1. 26 Office of U.N. High Commissioner for Human Rights & World Health Organization, THE RIGHT TO HEALTH: FACT SHEET NO. 31, 9 (June 2008), available at http://www.ohchr.org/Documents/Publications/Factsheet31.pdf [hereinafter FACT SHEET NO. 31]. 27 Id. at 6. 28 Id.

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The right to health is further mentioned in several treaty bodies of the United Nations. Two examples are the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Under Article 5, ICERD obliges states to prohibit and eliminate racial discrimination and guarantee everyone the right to public health and medical care.29 Likewise, CEDAW requires states to enact and enforce policies that protect women and girls from violence and abuse and provide for appropriate physical and mental health services.30 Articles 11, 12, and 14 of CEDAW all explicitly mention the right to health as well as access to its underlying determinants, such as working environment and sanitation.31 Furthermore, both ICERD and CEDAW possess individual complaints mechanisms, where persons claiming to be victims of human rights violations, [such as the right to health] may submit a complaint to the treaty body, which will then issue its findings and recommendations to the State Party concerned.32 The numerous references to the right to health underlines how integral the right to health is in upholding other aspects of human dignity, such as safe working conditions, access to adequate medical services, and living free from the threat of abuse or violence. Furthermore, the individual complaint mechanisms illustrate that state compliance with treaty obligations can be monitored. These two treaties emphasize the fact that the right to health can be upheld only when the underlying determinants of health are addressed. Both CEDAW and ICERD recognize that specific groups, such as women and ethnic minorities, face special obstacles with regards to their enjoyment of the right to health.33
29 30

Id. at 11. Id. at 17. 31 Declaration on the Elimination of Discrimination Against Women, G.A. Res. 2263, 22 U.N. GAOR, Supp. No. 16, U.N. Doc. A/6716 (Nov. 7, 1967), available at http://www.unhcr.org/refworld/docid/3b00f05938.html. 32 FACT SHEET N O. 31, supra note 26, at 41. 33 Id. at 11.

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These obstacles may include discrimination, stigma, biological, or socioeconomic factors.34 According to a 2008 report from the Office of the United Nations High Commissioner for Human Rights, Redressing discrimination in all its forms, including in the provision of health care and ensuring equality between men and women are fundamental objectives of treating health as a human right.35 It is for this reason that both CEDAW and ICERD contain specific clauses on health; the right to health is intertwined with the elimination of discrimination. By obliging states to adopt positive measures which ensure that individuals and groups are not discriminated against, these two treaties ensure that states are working to create conditions in which potentially vulnerable populations have the ability to access the highest attainable standard of health. In 2000, the Committee on Economic, Social, and Cultural Rights (CESCR) issued General Comment Number 14 on the right to the highest attainable standard of health, which declared that the core obligations of states concerning the right to health were non-derogable. The Committee first clarified the core obligations necessary to meet the minimum essential levels of the right [to health].36 These obligations included access to health facilities, access to nutritionally adequate food, ensuring basic shelter, providing essential drugs, and implementing a national public health strategy.37 The Committee further asserted: a State party cannot, under any circumstances whatsoever, justify its noncompliance with the core obligations set out in paragraph 43 above, which are non-derogable.38 Even a difficult financial situation cannot absolve the State from taking action; according to the Office of the United Nations High Commissioner for Human Rights,
34 35

Id. Id. at 12-13. 36 Committee on Economic, Social, and Cultural Rights, The Right to the Highest Attainable Standard of Health, 43, 22d Sess., Apr. 25-May 12, 2000, U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000) [hereinafter General Comment No. 14]. 37 Id. 38 Id. at 47.

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When considering the level of implementation of this right in a particular State, the availability of resources at that time and the development context are taken into account. Nonetheless, no State can justify a failure to respect its obligations because of a lack of resources.39 Therefore, a state must guarantee the right to health to the maximum of its available resources.40 In 2001, the CESCR adopted a statement on poverty, in which they reaffirmed the statements of General Comment 14: Because core obligations are non-derogable, they continue to exist in situations of conflict, emergency and natural disaster.41 It is important to make the distinction that while the obligations associated with the right to health are non-derogable based on General Comment 14, there is no mention of the derogable nature of the right itself in these two documents. Yet, if a state were to derogate from upholding the right to health in armed conflict or national emergency, it would be violating its core obligations as well. Therefore, the State must always maintain a minimum standard for health, even in the context of armed conflict. Although the right to health is considered an economic, social, and cultural right due to its explicit mention in ICESCR, the ICCPR contains two important clauses which can be interpreted to uphold the right to health. In Article 6, States Parties are obliged to recognize that Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.42 Also, Article 7 asserts that No one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.43 If a state
39 FACT 40

SHEET NO. 31, supra note 26, at 9. See General Comment No. 14, supra note 36, 47; See also THE RIGHT TO HEALTH, supra note 26, at 9. 41 Committee on Economic, Social, and Cultural Rights, Statement Adopted by the Committee on Economic, Social and Cultural Rights on May 4, 2001, 18, 25th Sess., Apr. 23-May 11, 2001, U.N. Doc. E/C.12/2001/10 (May 10, 2001). 42 International Covenant on Civil and Political Rights, supra note 19, at art. 6. 43 Id. at art. 7.

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fails to provide for the underlying determinants of healthby withholding access to clean drinking water, food, or a sanitary environment, for examplethey can also be held responsible for arbitrary deprivation of life or inhumane treatment. This means that states would be found in violation of Articles 6 and 7, and, as discussed in the section above, both of the rights explicitly outlined in these articles are non-derogable. By extension, therefore, the right to healthfor both individuals and combatants in armed conflict scenarios must also be non-derogable, as failure to uphold this right would place states in violation of Articles 6 and 7.

PART III: PROTECTION OF HEALTH IN INTERNATIONAL HUMANITARIAN LAW


To further demonstrate that the right to health is nonderogable in armed conflict for both civilians and combatants, it is necessary to examine the extent to which health is protected under international humanitarian law. IHL was developed after World War II and was aimed at protecting and caring for persons injured during armed conflicts, firstly combatants.44 The four Geneva Conventions specifically addressed the rights of the sick, wounded, and shipwrecked members of the armed forces, and the treatment of prisoners of war.45 The Geneva Conventions do not differentiate protection based on which party the combatant belongs to: In all circumstances they shall be treated humanely and shall receivethe medical care and attention required. There shall be no distinction among themother than medical ones.46 Furthermore, the Geneva Conventions also extend protection to those not involved in combat; the Fourth Convention focuses specifically on civilian protections. Common Article 3 of the Third and Fourth Geneva
44 45

Perrin, supra note 8, at 159. International Norms, supra note 18. 46 Protocol I, supra note 12, at art. 10.

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Conventions also states, Persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat 47 by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely.48 However, in this Article, it is evident that under IHL the extent of the protection of health is predicated upon the distinction between active combatants, civilians, and noncombatants. It is not a blanket protection based on the dignity of all human beings as we see in international human rights law. International humanitarian law differs from international human rights law in how it defines civilian protections. According to the 1977 Additional Protocol I to the Geneva Conventions, in IHL, a civilian is defined as an individual who is not a legal combatant.49 Defining civilian in negativethat which is not something elsecreates clear distinctions in IHL pertaining to the protection of health for combatants versus civilians. This is an important difference between IHL and international human rights law: as stated in section B of this article, international human rights apply to everyone at all times, regardless of a persons role (or lack thereof) in combat. However, in international humanitarian law, which regulates the conduct of warfare, the distinction between civilian and combatant is essential to defining the protections afforded to each individual. It is for this reason that Common Article 3 emphasizes the humane treatment of those taking no active part in hostilities, whereas in the language of international human rights law, all human beings have the right to be free from inhumane treatment50 combat role is not a factor in whether or not this right applies to an individual under this framework. This is why it is vital that the right to health be upheld during armed
47

In international law, the term hors de combat, which literally translates to outside the fight, refers to soldiers who are incapable of fulfilling their military function due to injury, illness, disability, or detainment. 48 International Norms, supra note 18. 49 Protocol I, supra note 12, at art. 50. 50 International Covenant on Civil and Political Rights, supra note 19, at art. 7.

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conflict scenarios: while international humanitarian law may protect civilians from bodily harm and regulate the treatment of combatants, it does not uphold the right of these individuals, regardless of combat status, to exist in conditions which promote health. Still, international humanitarian law does provide some protection for healths underlying determinants. For instance, Article 14 of the Second Additional Protocol to the Geneva Conventions states, It is prohibited to attack, destroyobjects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areascrops, livestock, drinking water installations [and] irrigation works.51 Article 56 of the Fourth Geneva Convention also places obligations on the occupying power to protect the health of the civilian population, stating it has the duty to ensure and maintain the hospital services, public health, and hygiene in the occupied territory.52 In this manner, it is clear IHL recognizes that there are numerous factors contributing to human health, and that the State is responsible for many of these factors. While regulating the conduct of warfare certainly creates conditions that safeguard the health of both civilians and combatants, one of the key ways that IHL can protect health is by regulating the weapons used during warfare. For instance, the Convention on the Prohibition of the Development, Production, and Stockpiling of Biological Weapons and Toxin Weapons and on Their Destruction prohibits States Parties from using any such agents for hostile purposes or in armed conflict.53 This Convention and others like it protect against states use of weapons with potentially devastating health consequences for both
51

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, art. 46, June 8, 1977 U.N. Doc. A/32/144, Annex I [hereinafter Protocol II]. 52 Perrin, supra note 8, at 160. 53 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, art. 1.2, Apr. 4, 1972, 1015 U.N.T.S. I-14860.

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combatants and civilian populations. There is recognition in IHL that the effects of such weapons are not limited to military targets; hence, they violate the principle of distinction.54 Defined in the introduction to this article, the principle of distinction obliges parties engaged in conflict to target solely military objectives, while taking precautions to minimize civilian casualties. By upholding this principle, IHL also protects the health of civilians, keeping them free from the harmful effects of biological and chemical weapons. Thus, while health seldom appears to be explicitly protected in the body of international humanitarian law, through IHLs regulation of the methods of warfare it does protect both civilian and combat troops from harm and upholds the underlying determinants of health.

PART IV: THE JOINT APPLICABILITY OF IHL AND IHR IN ARMED CONFLICT: LEGAL BASIS
Although armed conflict is traditionally the domain of IHL, the right to health must be upheld under international human rights law. Since the 1990s there has been growing precedent for the applicability of international human rights law during armed conflict in regards to the right to health. In a 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice (ICJ) held that the protection of the ICCPR does not cease in times of war.55 Although the Court recognized that certain rights are subject to derogation under Article 4 of the Covenant, it held that respect for the right to life, is not, however, such a provision. In principle, the right to not arbitrarily be deprived of ones life applies also in hostilities.56 Even in armed

54 55

Perrin, supra note 8, at 161. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 25, 105 (July 8). 56 Id. at 105.

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conflict, it is possible that scrutiny of a states ability to uphold obligations under international human rights law, including the right to health, can help Courts decide whether or not states are creating conditions that facilitate the arbitrary deprivation of life. In this case, to determine what constitutes an arbitrary deprivation of life within armed conflict, the Court took a lex specialis57 approach: in order to answer the question put to it, the Court will have to take into consideration both branches of law, namely human rights law and, as lex specialis, international humanitarian law.58 In order to determine the parameters of human rights in times of war, then, the Court still looked at the more specific provisions of IHL; both bodies of law are therefore necessary in conflict scenarios for the protection of health. The ICJ further strengthened the relationship between IHL and IHR in its 2004 Advisory Opinion on the legal consequences of the construction of a wall in occupied Palestinian territory.59 In this opinion, the ICJ confirmed the applicability of IHR in cases of military occupation.60 The Court concluded that the barrier violated the applicable provisions of IHL and IHR.61 For instance, the construction of the wall impedes the exercise of the persons concerned of the right to work, to health, to education, and to an adequate standard of living as proclaimed in the ICESCR.62 The Court also held that the restrictions resulting from Israels
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In international law, lex specialis refers to the interpretive approach where, if two laws apply to the same factual situation, the law which applies to more specific subject matter of the case takes precedence over the law governing more general matters. In the above case, therefore, international humanitarian law was considered a lex specialis approach because this body of law specifically applies to the conduct of warfare. 58 Legality of the Threat or Use of Nuclear Weapons, supra note 55, at 106. 59 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9). 60 Rule of Law in Armed Conflicts Project, Interaction Between Humanitarian Law and Human Rights in Armed Conflicts, GENEVA ACADEMY OF INTERNATIONAL HUMANITARIAN LAW AND HUMAN RIGHTS, http://www.genevaacademy.ch/RULAC/interaction_between_humanitarian_law_and_human_rights_in_ar med_conflicts.php [hereinafter RULAC]. 61 HENKIN ET AL ., supra note 10, at 511. 62 Id. at 516.

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construction of the wall fail to meet a condition 63 laid down by Article 4 of the ICESCR.64 Therefore, even though the wall was constructed in the midst of military conflict, in the interest of Israels national security, the ICJ confirms that the State must still uphold the right to health. A year later, the ICJ confirmed the applicability of human rights law to inter-state conflicts. In its binding judgment in the 2005 case Democratic Republic of Congo v. Uganda, the Court cited the Wall Advisory Opinion in justifying the consideration of IHR in military action.65 The ICJ found Uganda guilty of violating the ICCPR, the Convention on the Rights of the Child, the African Charter, and provisional measures instated in 2000.66 The Court concluded that international human rights instruments are applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory, particularly in occupied territories.67 Even in the context of armed conflict, then, a State can be found in violation of the rights laid down in the ICCPR and ICESCR. Decisions of the ICJ are legally binding on consenting States, and if such a violation is found, immediate action must be taken by the State to redress the situation. This can include immediate cessation of current actionssuch as the construction of the wallor full reparations to the affected parties.68 States which fail to comply with provisions of the Courts verdict may lose their reputation and good standing in the international
63

International Covenant on Social, Economic and Cultural Rights, supra note 23, at art. 4 (The State may subject such rights [outlined in the ICESCR] only to such limitations as are determined by law in so far as this may be compatible with the nature of these rights and solely for the purpose of creating general welfare in a democratic society. The ICJ held that the walls interference with the right to health, education, work, and adequate standard of living was not in keeping with the promotion of general welfare in a democratic society, and so violated the condition in Article 4 which would have allowed the State to limit said rights). 64 HENKIN ET AL ., supra note 10, at 517. 65 RULAC, supra note 59. 66 Armed Activities on Territory of Congo (Democratic Republic of Congo v. Uganda), 2005 I.C.J. 116 (Dec. 9). 67 Id. 216. 68 HENKIN ET AL ., supra note 10, at 489.

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community. This has an adverse impact on states political capital and aid in the future, which is especially harmful to states embroiled in armed conflict. The previous cases show that even though derogations by the State are possible in armed conflict scenarios, this does not stop the courts from finding certain actions taken by the State as actually interfering with non-derogable rights. For instance, creating barriers to education, work, and nutrition can be considered actions contributing to the arbitrary deprivation of life, which is protected against even in times of war. Furthermore, the interactions between IHR and IHL create conditions in which the underlying determinants of the health of civilians and combatants are closely monitored in armed conflict scenarios, whether an internal or inter-state conflict. Therefore, even rights, which are not explicitly mentioned as non-derogable in the body of international human rights law, such as the right to health, must be upheld lest States find themselves in violation of non-derogable rights specifically mentioned in the ICCPR. In the context of armed conflict, the right to health becomes a de facto non-derogable right, as states cannot neglect to provide for the health of civilians and combatants without also creating situations of degrading treatment or arbitrary deprivation of life.

PART V: CASE STUDY: UPHOLDING THE RIGHT TO HEALTH IN THE DEMOCRATIC REPUBLIC OF CONGO
The Democratic Republic of Congo (DRC) provides a useful case study for illustrating that states cannot legally violate the right to health during armed conflict or in times of national distress. Since 1998, various armed factions have fought for control over the DRCs resources and both the government and rebel

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troops have perpetrated violence against civilians.69 Rape is a common tactic of warfare, because, according to UNICEF, it weakens and divides communities, making them easy to conquer.70 The World Health Organization maintains that sexual violence is one of the greatest threats to womens health in the DRC.71 According to one survey, 39.7 percent of Congolese women and 23.6 percent of Congolese men reported being exposed to sexual violence during their lifetime, almost 75 percent of these instances being conflict-related.72 The conflict has also created a situation which destroys healths underlying determinants: in one study of North Kivu Province, more than half the population represented did not have adequate water, food, fuel, shelter, or clothing.73 An increased risk of cholera, especially high among those displaced due to fighting, is a consequence of the States violation.74 To uphold these underlying determinants, the DRC must increase its populations access to sanitary living conditions, particularly in the eastern region where many displaced persons are currently living in ad hoc sites.75 However, the ongoing conflict often blocks aid workers from reaching camps for internally displaced persons, and exacerbates insecurity.76 The numbers of internally displaced persons also keep increasing, straining the already limited capacity of the host communities. As a result of the unrest, the DRC has not provided its citizens an environment where it is feasible to attain the highest possible standard of health.

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Blake, supra note 1. Id. 71 The Global Coalition on Women and AIDS & World Health Organization, Responding to Sexual and Gender-Based Violence in the Democratic Republic of Congo (last visited Mar. 15, 2013), http://www.who.int/hac/crises/countries/cod/2pager.pdf. 72 Johnson et al., supra note 6, at 558. 73 Id. at 559. 74 Wairagala Wakabi, The Democratic Republic of the Congo in Crisis, 372 THE L ANCET 2011 (2008). 75 HRC Combined Report, supra note 5. 76 Id.

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The DRC is party to a number of treaties and documents that clarify its obligation to provide an adequate standard of health for its civilians. This includes all of the documents mentioned above: The Universal Declaration of Human Rights, the ICCPR, the ICESCR, ICERD, CEDAW, the four Geneva Conventions (1949) and their two Additional Protocols (1977).77 The DRC is also party to the African Charter of Human and Peoples Rights, which states under Article 16, sections 1 and 2, respectively that: Every individual shall have the right to enjoy the best attainable standard of physical and mental health, and States Parties to the Present Charter shall take the necessary measures to protect the health of their people.78 Furthermore, Article 47 of the DRCs own Constitution (of 18 February, 2006) reads, The right to health and food security is guaranteed.79 The DRC is bound by international, regional, and domestic law to uphold the right to health. Through the ICESCR, the DRC is bound by three types of positive obligations for upholding the right to health: protect, respect, and fulfill.80 However, the ongoing conflict has precluded the DRC from meeting these obligations. According to the Special Rapporteur on the Right of Everyone to Enjoy the Highest Attainable Standard of Health, the conflict is directly responsible for causing the collapse of the health system.81 Health posts have become either destroyed or non-functional because the staff has been displaced. Due to user fees, the health systems still in operation are inaccessible to the neediest members of society.82 A health system which was already suffering from lack of investment

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Baudouin Wikha Tshibinda, Guarantee Mechanisms of Rights Claims Recognized by the Constitution: Right to Health; State Obligation (President, Executive, National Assembly, Judiciary), THE RULE OF LAW IN AFRICA (2010), http://www.the-rule-of-law-in-africa.com/wpcontent/uploads/2010/09/Baudouin.pdf. 78 African Charter on Human and Peoples' Rights, art. 16, June 27, 1981, 1520 U.N.T.S. 217, 245; 21 I.L.M. 58, 59 (1982). 79 Wikha Tshibinda, supra note 76, at 14. 80 FACT SHEET N O. 31, supra note 26, at 29. 81 HRC Combined Report, supra note 5, at 12. 82 Id. at 8, 11.

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has been degraded even further by attacks from various factions.83 Only through taking positive steps to prevent violence, and a refusal to perpetuate the conflict, can DRC begin to create conditions where it is possible for them to protect, respect, and fulfill the right to health. Since the right to health is categorized as a positive right, inaction by the State, even due to conflict, constitutes derogation. Based on the two bodies of law reviewed here, the DRC is not justified in its derogation due to the exigent circumstances of the conflict, despite its financial struggles. For instance, General Comment Number 14 of the Committee on Economic, Social, and Cultural Rights stipulates that states must guarantee a minimum standard of health despite their financial situations.84 Furthermore, the obligation to protect requires states to also prevent third parties from interfering with the right to health.85 For the DRC, this means stopping both rebel groups and government troops from committing acts of sexual violence. The DRC is also obliged to responsibly supervise the actions of its troops against civilians under the clauses of the Fourth Geneva Convention. Therefore, when the DRC derogates from its obligation to protect through both the perpetuation of violence as well as the refusal to prevent such violence, it is also found in violation of international humanitarian law. By failing to fulfill their obligation to uphold the right to health, the DRC also fails to provide accessible medical treatment and sanitary conditions to its civilians. Expenses associated with the current healthcare system create structural barriers which prevent vulnerable members of society from accessing treatment, and this lack of access is propagated by the ongoing conflict: violence and by armed groups from all sides have led to the

83

Wakabi, supra note 73, at 6. General Comment No. 14, supra note 36, 47. 85 FACT SHEET N O. 31, supra note 26, at 30.
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destruction of medical centers and the displacement of staff.86 This creates conditions for arbitrary deprivation of life,87 which is protected against under the ICCPR. Based on the precedent established in the ICJs 1996 Advisory Opinion on Nuclear Weapons and the 2004 Wall Advisory Opinion, the Congolese citizens protection under the ICCPR does not cease in times of war, and human rights law still applies in zones of military conflict. Therefore, although structural barriers do exist and need to be addressed, the DRCs core obligations under IHL and IHR still make the denial of adequate healthcare standards legally impermissible for the country to derogate from the right to health. Creating conditions in which it is possible for all members of the population to access the highest attainable standard of health must therefore be a priority for nations such as the DRC, especially in situations of armed conflict, where the health of both civilians and combatants is at its most vulnerable.

PART VI: THE RIGHT TO HEALTH AS NON-DEROGABLE: PRACTICAL IMPLICATIONS


The conflict in the Democratic Republic of Congo has created numerous structural barriers that have prevented the State from effectively upholding the right to health. According to the Special Rapporteur on the Right of Everyone to Enjoy the Highest Attainable Standard of Health, one of the major factors blocking the States ability to provide for the underlying determinants of health is the large number of internally displaced persons due to the conflict.88 Both pillaging and violence associated with the fighting has led to the displacement of medical staff and educators,
86 87

Wakabi, supra note 73, at 6. Here, the term arbitrary is not interpreted to mean that no one is to blame for the deprivation of life, or that the situation affects all individuals equally, but rather that the situation creating said deprivation is preventable. 88 HRC Combined Report, supra note 5, at 12.

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which has left schools, clinics, and health posts either abandoned or non-functional. While the Special Rapporteur notes that many of the internally displaced are taken in by host families or communities, the rapid rate of displacement is quickly placing strain on their limited resources, and the existing health infrastructure often cannot support the influx of vulnerable populations in need of care.89 Furthermore, humanitarian workers are attacked by armed conflict groups from all sides, blocking the populations access to aid.90 Therefore, while the DRC is bound by both international and domestic law to uphold the right to health, structural and logistical barriers associated with conflict make it very difficult to do so. However, structural and financial difficulties do not allow the DRC to fail to uphold the minimum obligations necessary for the underlying determinants of health. Under Article 2 of the ICESCR, the State must undertake steps to protect the rights outlined in the Covenant to the maximum of its available resources.91 According to the Office of the High Commissioner for Human Rights, this principle of progressive realization acknowledges the constraints States parties may face due to the limits of available resources. However, it also imposes an immediate obligation to take deliberate, concrete, and targeted steps toward the full realization of the rights of the Covenant. 92 Therefore, while exigent circumstances do not excuse a state from upholding their obligations to the treaty, there are provisions that recognize the difficulty of these obligations. The ICESCR also recognizes the wider role of the international community in aiding said states in the implementation of these rights.93 In the case of the Democratic Republic of Congo, the support of the international community is
89

Id. Id. 91 International Covenant on Economic, Social and Cultural Rights, supra note 23, at art. 4.1. 92 FACT SHEET N O. 31, supra note 26, at 15. 93 Id.
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vital for the State to meet its obligation to uphold the right to health. Transnational humanitarian groups, for instance, must work together to coordinate an efficient response to the health crisis, replacing lost infrastructure and medical staff. Other nationsespecially Rwanda, Uganda, and Burundi, which neighbor the DRCs eastern provinces should take it upon themselves to create asylum for refugees from the conflict, easing the burden of vulnerable host communities in the DRC and reducing the overcrowded conditions of camps established by humanitarian aid workers. However, in order for the DRC to truly protect its citizens right to health, it must take immediate action to reduce the violence. According to the Special Rapporteur, The existing armed conflicts exacerbate the extent and severity of human rights violations and also pose a challenge to implementing government initiatives and accompanying technical assistance measures to address structural human rights concerns.94 While armed conflict continues, no sustainable health infrastructure can exist, and living conditions which meet the minimum standards to uphold healths underlying determinants are not secure. Armed conflict also perpetuates internal displacement and creates dangerous conditions for aid workers. The government of the DRC, therefore, must immediately meet with the various factions of the conflict and begin steps to reduce the internal violence. The Special Rapporteur also notes that the international community must play a vital role in assisting the peace process, especially the countries neighboring the DRC.95 The current widespread violence is the fundamental barrier to upholding the right to health.

94 95

HRC Combined Report, supra note 5, at 23. Id.

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PART VII: CONCLUSION


Upholding the legal right to health must be a fundamental priority for every nation in the world. In the context of armed conflict, both international humanitarian law and international human rights law must work in tandem to help states provide its citizens vital resources. While international humanitarian law protects the health of civilians in armed conflict by regulating the conduct of war, international human rights law imposes obligations upon states, ensuring the peoples right to access protected health services is actually fulfilled. IHL only regulates the conduct of states in regards to their actions within the conflict itself, while IHR addresses the present situation of the nation. Although the ICJ initially took a lex specialis approach in determining the scope of human rights in the context of war, the case study of the DRC illustrates that the right to health must be maintained regardless of IHL provisions: neglecting this right leads to the violation of both non-derogable rights under IHR and protections of international humanitarian law. The core minimum obligations of the right to health cannot be forsaken under any circumstance according to ICESCR, and these obligations cannot be met if the right itself is not protected. While the ICESCRs principle of progressive realization recognizes that certain states face greater structural and financial barriers than others, this does not excuse them from failing to take action toward the realization of these rights. Thus, the extreme obstacles which inhibit the DRC from protecting the health of its citizens are not an excuse for inaction; rather, it is a reason for why the international community needs to take immediate action to help mitigate the situation. In particular, it is vital that other nations provide asylum for refugees to alleviate the crowded conditions of camps established in the DRC. No matter the barrier, in the context of armed conflict, the right to health must be upheld. However, the most important step states must take to truly protect

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this right is to begin the process of reducing violence the staggering obstacles facing the right to health during armed conflict make the peace process all the more urgent. For those like Jeanne who must endure the physical, emotional, and psychological stress of a conflict scenario, there is perhaps no other legal right more critical, or more valued, than the all-encompassing right to health.

The Efficacy of the International Criminal Court


By Rebecca Morris*
For centuries, international war criminals have committed injustices without being held accountable through proper trial. In 2002, the establishment of the International Criminal Court offered the chance to indict such criminals. Critics of the Court argue the Court has already failed to bring criminals to trial due to its lack of enforcement mechanisms. Additionally, as a body independent from the United Nations and due to its strained relationship with the United States, the Court may be ineffective at garnering the legislative powers required for it to perform adequately. Supporters of the Court remain optimistic that the Court's work will result in a more just world, specifically citing its first conviction against Congolese warlord Thomas Lubanga who was found guilty of recruiting child soldiers. This article qualifies and analyzes the judiciary effectiveness of the International Criminal Court and points to how the aforementioned challenges may adversely affect the efficacy of the Court.
*Rebecca Morris is currently in her second-year at Emory University where she is pursuing her bachelor's degree in English. She hopes to attend law school, and afterward to work to better the foster care system and help abused women and children. When not at school, Morris lives in Scottsdale, Arizona with her family and works for the Mayor of Phoenix.

Table of Contents I: INTRODUCTION II: THE ICCS LIMITED JURISDICTION IIa. Lack of Universality

74 76 76

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IIb. Types of Crimes 78 IIc. Lack of Enforcement Powers 81 II: THE INTERNATIONAL CRIMINAL COURT AND THE UNITED NATIONS 82 III: THE INTERNATIONAL CRIMINAL COURT AND THE SECURITY COUNCIL 84 IV: THE INTERNATIONAL CRIMINAL COURT AND THE UNITED STATES 86 VI: CONCLUSION 90

INTRODUCTION
War crimes are not inventions of the twentieth century. Though weapons have certainly increased in severity with technological advancements, the world has, since mankind began, witnessed violence that violates standards of human decency. Individuals who breach this "common denominator of behavior"1 have been subject to trial and prosecution dating back to the time of the ancient Greeks and perhaps even prior. Notwithstanding that jus cogens, a form of higher law, exists in society, many of the world's most heinous criminals have benefited from relative impunity. In the years between the post-World War II ad hoc tribunals at Nuremberg and Tokyo and the ad hoc tribunals for Rwanda and Yugoslavia in the 1990s, the world was moderately static in its pursuit of punishing those responsible for the war crimes. Though some 250 conflicts in various regions produced roughly one hundred million casualties during this interim period, the perpetrators of these wars have not been held accountable.2

WILLIAM SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT 1 (2007). 2 See Piero Scaruffi, 1900-2000: A CENTURY OF GENOCIDE (2009), http://scaruffi.com/politics/dictat.html (These genocides include those of Mao ZeDong (China, 1958-1961 and 1966-1969, Tibet 1949-1950), Pol Pot (Cambodia 19751979), Kim II Sung (North Korea, 1948-1994), Menghistu (Ethiopia, 1975-1978), Yakubu Gowen (Biafra, 1967-1970), Leonid Brezhnev (Afghanistan, 1979-1982), Jonas Savimbi (Angola 1975-2002) and others).

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The reasons underlying the need for a permanent international criminal court are, fortunately, undeniable. A permanent court is needed for human rights abusers to realize that their crimes will inevitably translate into punishment. Society effectively strips humanity of its dignity by allowing these criminals to escape justice. A permanent criminal court could provide a partial tranquility to victims and their families as well as to affected communities.3 Recognition and retribution are crucial for world and societal rehabilitation. In an ideal world, individual nations would prosecute their own criminals. However, it is unrealistic to believe that governments will always hold their own citizens accountable, especially if the alleged criminal holds a position of power in that society. The ad hoc trials for the former Yugoslavia and Rwanda were created because domestic courts failed to hold their criminals responsible.4 While ad hoc tribunals, in these cases specifically, can be successful, they cannot replace permanent courts. Situations should be dealt with uniformity and strict procedural guidelines in place. It is uncertain that ad hoc trials would be set up for every crisis with the same consistency. Further, a permanent court set up by an overarching organization, such as United Nations, would be subject to political bias and to "suspicion concerning their judicial independence."5 A court set up by independent nations through voluntary participation would resolve this issue. This paper presents the legal and political barriers to an efficacious International Criminal Court (ICC). Part I discusses the background on creating the Court, its limited jurisdiction, both
3

Jelena Pejic, Creating a Permanent International Criminal Court: Obstacles to Independence and Effectiveness, 29 COLUM. HUM. RTS. L. REV. 291 (1998). 4 See Andrea Birdsall, The International Criminal Tribunal for the former Yugoslavia - Towards a More Just Order?, 8 PEACE, CONFLICT & DEV. (2006). By creating the ICTY, the UN Security Council had to choose between risking leaving crimes unpunished and uphold Yugoslavia's state sovereignty or undermine Yugoslavia's state sovereignty in order to pursue justice. It can also be argued that this intervention was somewhat already agreed upon by norms of human rights. 5 See Peji, supra note 3, at 293 (It is a hotly contested debate as to whether or not the UN has judicial powers at all).

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universally and in the types of crimes under its authority, as well as its lack of enforcement mechanisms. Part II addresses the ICC's relationship with the United Nations, including contentious issues involving the Security Council. Part III details why the United States is opposed to the ICC and whether or not the United States' policies towards the Court are changing. The Conclusion qualifies the analysis and points to how the barriers may adversely affect the court's jurisdiction. Though the ICC's presence alone may inspire public denouncement of criminal behavior violating moral code, there are currently many logistical obstacles undermining the efficacy of the Court.

PART I: THE ICCS LIMITED JURISDICTION Ia. Lack of Universality


A first considerable issue with the ICC's Rome Statute is its lack of universal jurisdiction. It can only preside over crimes committed on a territory or by a citizen of a state that is either a signatory of the Statute or has specifically consented to its jurisdiction over the situation. A state party to the ICC Statute can only then refer a situation to the Court. Under its own charter, the U.N. Security Council may refer a situation in any country, including non-signatories, to the ICC in which case the jurisdictional requirements do not need to be fulfilled.67 The Court would not have the power to prosecute war criminals that are temporarily on the territory of a state party. In what Jack Goldsmith, Law Professor at Harvard, calls the "Travelling Dictator Exception," leaders of non-signatory nations can commit crimes in their territories without fear of prosecution, excepting a referral by
6

UN Security Council: Address Inconsistency in ICC Referrals, HUMAN RIGHTS WATCH (Oct. 16, 2012), www.hrw.org/news/2012/10/16/un-security-council-address-inconsistencyicc-referrals-0. 7 American Non-Governmental Organizations Coalition for the International Criminal Court, What is the ICC? Structure and Basics, COLUMBIA U NIVERSITY INSTITUTE FOR THE STUDY OF HUMAN RIGHTS (April 20, 2012), http://www.amicc.org/icc_structure.

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the U.N. Security Council.8 However, because there are three permanent Council members as non-signatories, the United States, China, and Russia, it is unlikely that referrals will be made. Many nations wanted the ICC to be invested with universal jurisdiction, which would have mandated that a dictator could be caught and turned over to the Court at any time. Many others, however, rejected universal jurisdiction as they feared it would be a threat to national sovereignty. The Travelling Dictator Exception, was a compromise between these two opposing ideas: the world's worst human rights violators have often been leaders from non-signatory nations and because most of them have carried out their atrocities within their national borders, the ICC cannot touch them even if they travel abroad.9 In this way, the ICC fails to apprehend the most serious human rights violators. Further, The Court's jurisdiction is limited to "the most serious crimes of concern to the international community as a whole,"10 meaning that it can take on a case only if atrocities are both massive and deliberate. This is subject to interpretation and is therefore a point of contention for many non-signatories. It also begs the question as to whether or not the ICC truly represents the international community. The ICC has jurisdiction over certain crimes because they affect the entire international community, not because they require international cooperation.11 Presently, all 28 individuals indicted by the court have come from Africa, which has led to charges of bias. The Court has active investigations pending in Uganda, the Democratic Republic of the Congo, Central African Republic, and Darfur, among others in Africa. Though cases are still centralized in Africa, they have largely been referred to the Court by their own leaders. The ladder was referred to the Court by the
8 Jack

Goldsmith, The Self-Defeating International Criminal Court, 70 U. CHI. L. Rev. 1, 89-104 (2003). 9 Id . (The ICC can override national sovereignty in order to prosecute against a nonsignatory if the Security Council refers a case to the Court.) 10 Rome Statute of the International Criminal Court, pt. 2, art. 5, July 17, 1998, U.N.T.S 2187. 11 SCHABAS, supra note 1, at 21.

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U.N. Security Council. The other three investigations stemmed from the countries' own referrals of their citizens.12 Under the Rome Statute, the Court's prosecutor can choose to investigate referrals from any signatory state regarding situations taking place in their territories, such as the cases from Uganda, the Democratic Republic of the Congo, and the Central African Republic, or those referred from the U.N. Security Council, as in Darfur and Libya. Additionally, the prosecutor is currently conducting preliminary examinations in Afghanistan, Georgia, Guinea, Colombia, Honduras, Korea, and Nigeria.13 Though the Court is launching these investigations, its signatories come mainly from Africa, Europe, and South America. It is yet to be determined whether or not the ICC is adequately representative of the global community.

Ib. Types of Crimes


Even if the Court was able to prosecute the world's worst criminals, its jurisdiction is currently limited to three types of crimes: genocide, crimes against humanity, and serious war crimes. In addition, the Rome Statute will enable prosecution of crimes of aggression beginning in 2017. 14 The delay is a result of the failure of state parties to reach a consensus in 1998 as to the crime's definition. In June 2010, the Review Conference of the Rome Statute amended the Statute to include such a definition that read, "the use of armed force by one State against another State without the justification of self-defense or authorization by the Security

12

The International Criminal Court Trial of Thomas Lubanga, HUMAN RIGHTS WATCH, (Jan. 23, 2009) http://www.hrw.org/news/2009/01/22/international-criminal-court-trialthomas-lubanga. 13 Id . 14 See Coalition for the International Criminal Court, Delivering on the Promise of a Fair, Effective an Independent Court: The Crime of Aggression, ICCNOW.ORG (Apr. 21, 2012), http://www.iccnow.org/?mod=aggression (This conference was held in Kampala, Uganda between May 31 and June 11, 2010).

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Council."15 The crime of aggression charge, as amended, is intended to confer individual responsibility on national leaders. However, this is problematic largely because of the political nature of such crimes. It would be nearly impossible for the Court to remain impartial in proceedings against the crime of aggression which includes large-scale invasion, military occupation, and annexation by the use of force.16 The boundary between a particular use of force is considered illegal aggression or not is unclear. As detailed in the Rome Statute and Elements of Crime, genocide is defined as an intention "to destroy, in whole or in part, that national, ethnical, racial, or religious group" by killing or seriously wounding members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, imposing measures to prevent births, and forcibly transferring children of the group to another group.17 This definition is widely accepted and is now a normative concept in international law. This definition of genocide, though not an original concept of the ICC,18 does not account for deliberate harm against people for a political or sexual agenda. In 1975, Cambodia, for example, the government decided to eliminate all people who opposed the communist regime. The technical definition of "Genocide" did not cover this even though other parts of the definition did hold true, such as the forced transferring of children from their parents. Even if the ICC had jurisdiction over this case, it
15

See id. (The act of aggression must constitute a breach of the Charter of the United Nations. The definition relies heavily on both the Rome Statute and the UN Charter.) 16 Frequently Asked Questions, INTERNATIONAL CRIMINAL COURT, (Feb. 10, 2013) http://www.icccpi.int/en_menus/icc/about%20the%20court/frequently%20asked%20questions/Pages/ index.aspx. 17 Elements of Crime of the International Criminal Court, A MERICAN NON GOVERNMENTAL ORGANIZATIONS COALITION FOR THE INTERNATIONAL CRIMINAL COURT, art. 6 (Apr. 21, 2012), available at http://www.amicc.org/docs/ElementsOfCrimesEng.pdf. 18 See Prevent Genocide International, The Crime of 'Genocide' Defined in International [Sic] Law, (Apr. 21, 2012), http://www.preventgenocide.org/genocide/officialtext.htm (The original definition of genocide was the brainchild of Raphael Lemkin and the 1948 Convention on the Prevention and Punishment of Genocide).

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would not have been able to charge those responsible in Cambodia with genocide. It could have, however, prosecuted Cambodian leaders for crimes against humanity, as defined as "acts involving the multiple commission of one or more acts such as, for example, murder, extermination, enslavement, persecution, the transfer of a population, torture, or rape." Such acts must be widespread and systematic against a civilian population and a State's policy.19 In recent years, many of the Court's indictments have been for crimes against humanity. One of the most notable perpetrators of such acts, Joseph Kony, is accused of twelve counts of the crime including murder, enslavement, sexual enslavement, rape, and inhumane acts of serious bodily injury and suffering.20 The Court's final jurisdictional power is over serious war crimes, defined as those "in violation of well-accepted laws of war, in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes."21 This definition of war crimes is subject to controversy, as many countries stressed the necessity for a very high threshold for jurisdiction over these crimes. An individual soldier's isolated crime, for example, should not warrant an ICC investigation. Due to persistence on the part of the United States, Article 7 of the Statute states that the ICC will only retain jurisdiction of war crimes when they are part of a state or organizational policy of widespread or systematic attack of civilian populations.22 The United States is similarly concerned about war crimes arising from military strikes. The ICC has jurisdiction over military strikes that cause civilian injury or damage to civilian objects "clearly excessive in relation to the
19American

Non-Governmental Organizations Coalition for the International Criminal Court, supra note 7. 20 ICC Uganda , INTERNATIONAL CRIMINAL COURT, (Feb. 10, 2013), http://www.icccpi.int/en_menus/icc/situations and cases/situations/situation icc 0204/related cases/icc 0204 0105/Pages/uganda.asp&xgt. 21 Id . 22 Brian J. Lee, The International Criminal Court, Selected Essays on International Law, 2 FLA. COASTAL L.J. 199 (2001).

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concrete and direct overall military advantage anticipated."23 The words "clearly excessive" would be entirely subject to the interpretation of the Court and thus a potential point of contention. Other phrases trigger similar bases for debate such as war crimes relating to the "violation of fundamental rules of international law,"24 or "imperatively demanded by the necessities of war,"25 or "inhumane acts of a similar character."26 Due to the strict definitions of these crimes, the Court's jurisdiction is forced to rely on legal wording. As more cases are introduced to the Court, rulings may help further define the crimes, however. In order to prevent prosecutions based on subjective interpretation of legalistic wording, the ICC does have some procedural safeguards. Its principle of "complementarity" states that the Court can only preside over a case in question if the "State is unwilling or unable to genuinely carry out the investigation or prosecution."27 The ICC has full power to determine what is "genuine." The extent to how guarded nations are against the ICC depends on how much trust the nation has for the Court.

Ic. Lack of Enforcement Powers


The ICC has no inherent enforcement powers. The Court is entirely dependent on member states to arrest and transfer defendants and must rely on the resolve of other nations to use military and economic force. It has not proven likely that nations would expend their own energy in order to facilitate an arrest in another country; the monetary expenses would far outweigh the benefits. For example, the International Criminal Tribunal for the

23

International Criminal Court, Elements of Crimes, art. 8, 2b, cl. iv, U.N. Doc. PCNICC/2000/1/Add.2 (2000). ICC Art 8(2)(b)(iv), See also Goldsmith, supra note 8, at 95. 24 Rome Statute of the International Criminal Court, art. 7, 1e. 25 Id. at art. 8, b, cl. xiii. 26 Id. at art. 7, 1 k. 27 Id. at art. 17, 1a.

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former Yugoslavia (ICTY) has enjoyed a fair amount of success but not of its own accord. After reports about heinous war crimes in the region surfaced, the U.N. Security Council established the ICTY in May 1993 as a means to prosecute those responsible.28 This Court marked the first international war crimes tribunal since Nuremberg and Tokyo. The Charter itself did not ensure that defendants would show up to The Hague. Rather, the ICTY owes its power to United States military, diplomatic, and financial powers. The United States threatened to withhold large sums of money from the International Monetary Fund leading to the transfer of the criminals to the ICTY. These ICTY procedures set a precedent for the ICC which similarly lack enforcement powers. In order for the ICC to be successful, military and economic pressure is essential to ensure international criminal justice when criminals hide behind national borders.

PART II: THE INTERNATIONAL CRIMINAL COURT AND THE UNITED NATIONS
While the ICC is an independent court of law, the United Nations played a crucial role in its establishment. The push for a permanent international criminal court was presented at a General Assembly meeting in 1989.29 The Rome Statute, a result of this initial meeting, recognizes specific roles for both the UN and the Security Council within the ICC, such as criminal referral processes. General Assembly meetings regularly discuss issues central to the activities of the Court. Additionally, the Rome

28 About the ICTY: Establishment, UNITED N ATIONS INTERNATIONAL CRIMINAL

TRIBUNAL

FOR THE FORMER YUGOSLAVIA (Feb. 18, 2013), http://www.icty.org/sid/319.


29

See Coalition for the International Criminal Court, A Universal Court with Global Support: UN and the ICC, (Apr. 22, 2012), ICCNOW.ORG, http://www.iccnow.org/?mod=unicc (The idea was presented for consideration by Trinidad and Tobago at the 44th session of the General Assembly in 1989. Only 13 years later, the Court received the necessary ratifications and now stands as a functioning judiciary).

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Statute specifically outlines the four fundamental international crimes: genocide, war crimes, crimes against humanity, and the crime of aggression. The UN-ICC Relationship Agreement, concluded in 2004 by the President of the Court and the SecretaryGeneral of the UN, outlines the independence of the Court while "establishing a framework for cooperation."30 While there is a clear working relationship between the two judiciaries of international law, the ICC and the UN, some believe that the ICC's independence from the UN limits the Court's efficacy. As to the exact relationship between the ICC and the UN, Antonio Marchesi, in The Proposed International Criminal Court, along with members of Amnesty International have suggested the Court should be a branch of the UN, a step which would necessitate an amendment to the U.N. Charter.3132 If the ICC were to become an arm of the UN, it would be comparable to the United Nations' International Court of Justice (ICJ), which handles cross-border disputes between U.N. member states (national governments) rather than individual criminal prosecution.33 Many argue being part of the UN would validate authority and legitimacy on a level with that of the UN itself.34 However, the Court would, in turn, be subject to the will of the UN. This would mean that the UN would have the power to terminate the Court at any time. Because the UN would have extensive jurisdiction over the ICC, the permanence of the ICC could thus be questioned and its legitimacy undermined. Further, the UN's judiciary authority has been seriously questioned in the past, beginning with the creation of the two ad

30 31

Id. Dharmendra Chatur, A Synergistic Failure between the UN Security Council and the International Criminal Court, ACADEMIA.EDU: SHARE RESEARCH PAPERS 3 (July 2011), http://christuniversity.academia.edu/DharmendraChatur/Papers/803228/A_Synergistic _Failure_between_the_UN_Security_Council_and_the_International_Criminal_Court. 32 Id . 33 Renee Dopplick, Comparison of the ICJ and the ICC , INSIDE JUSTICE : INTERNATIONAL L AW BLOG POSTINGS (Nov. 10, 2008), http://www.insidejustice.com/law/index.php/intl/2008/11/10/differences_icc_icj. 34 Chatur, supra note 31, at 3.

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hoc tribunals for the former Yugoslavia and Rwanda.35 Many criticize the UN for pursuing retroactive penalties because the courts were created after atrocities in the two regions had been committed. These tribunals were not constitutional authorized courts set up to scrutinize [sic] the actions of organs of the United Nations; rather, they were criminal tribunals with very limited and specific jurisdiction. 36 Others questioned whether the situations in the former Yugoslavia and Rwanda were actual threats to international peace and security, over which the UN does have jurisdiction.37 Even the UN could not exercise complete authority over these courts. Both the UN and the ICC have limited power, straining their relationship more so.

PART IV: THE INTERNATIONAL CRIMINAL COURT AND THE SECURITY COUNCIL
The relationship between the ICC and the United Nations Security Council has been a topic of debate in recent years, from United States requests for immunity from the ICC's laws to case referral by the Security Council to the ICC.38 While the final decision was to separate the ICC from the Security Council, the Rome Statute still addresses structural links between them. The Court needed to establish a relationship that would not jeopardize its independence. In the 2004 Relationship Agreement, a three part relationship between the ICC and the Security Council was presented comprised of articles from within the Rome Statute.39 The first part deals with referrals by the Security Council to the

35

Pejic, supra note 3, at 301. Eloise Lnnberg, The Legality of Ad Ho Tribunals: Proper Justice of Politicized Peace? 18 (2007) (unpublished thesis, Gteborg University) (on file with Gteborg University), http://gupea.ub.gu.se/bitstream/2077/7336/1/Eloise%20L%C3%B6nnberg.pdf. 37 Id . at 9. 38 A Universal Court with Global Support: UN and the ICC, supra note 29. 39 Chatur, supra note 31, at 3-4.
36

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ICC,40 the second empowers the Security Council to prevent or stop an ICC investigation or prosecution for a period of 12 months,41 and the third and final provides the Security Council enforcement mechanisms for the pronouncements of the ICC.42 The Agreement creates certain loopholes for nonsignatories to refer cases to the ICC without fear of penalization. Security Council referrals serve to create two international criminal courts from the ICC: one for the State parties to the Rome Statute and the other for collective international security for non-State Parties (i.e. the United States via the Security Council).43 This second view of collective security via non-signatories may work to actually undermine international justice. Security Council members who are not signatories, like the United States, Russia, and China, can refer situations to the ICC without worrying about investigations or prosecutions occurring within their own borders. These countries can achieve beneficial ends for themselves (as human rights supporters) without becoming State Parties to the Rome Statute or accepting the ICC's jurisdictional powers. While autonomy from the UN allows the ICC to function on its own accord, the ICC's lack of inherent enforcement mechanisms prompts the question as to whether or not the ICC should reexamine its relationship with the Security Council. If Security Council members can bypass the regulations of the Court's jurisdiction without being signatories to the Rome Statute, the Court may need to consider amending its Statute to include some

40

Rome Statute of the International Criminal Court, art. 13, b. ("The Court may exercise its jurisdiction with respect to a crime... in accordance with the provisions of this Statute if... A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council.") 41 Id. at art. 16 ("No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council... has requested the Court to that effect." This stipulation may be renewed under the same conditions). 42 Id. at art. 87, 7 ("Where a State Party fails to comply... the Court may...refer the matter to... or, where the Security Council referred the matter to the Court, to the Security Council). 43 George P. Fletcher and Jens David Ohlin, The ICC - Two Courts in One? , 4 J. OF INTL . CRIM. JUST. 428-433 (2006).

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prohibitions against this inordinate use of political power. The problems of enforcement against non-signatories and the use of Security Council referrals to further political agenda of powerful nations have been common criticisms of the ICC's treaty-based relationship with the UN.44

PART V: THE INTERNATIONAL CRIMINAL COURT AND THE UNITED STATES


Despite backlash from human rights organizations around the world, the U.S. Senate, neglecting to ratify the Rome Statute and thus become a signatory, has opposed the ICC since its inception, July 1998.45 The United States signed the ICC Statute just before the December 2000 deadline to ensure its place as a State Party so that it could participate in the Court's drafting process. Under the Bush administration, the United States "unsigned" the Rome Statute in May 2002. Since then, the United States has threatened to use military force to ensure the rescue of U.S. citizens detained at The Hague and continues to pressure many countries to sign agreements not to surrender U.S. citizens to the ICC.46 The House, even less supportive of the ICC, enacted the 2002 American Service Members' Protection Act, often dubbed the "Hague Invasion Act," which authorizes the President to use "all means necessary and appropriate" to secure the release of U.S. or allied personnel from the Court. The Act also prohibits any form of cooperation with the ICC and limits military aid to signatories of the Statute, excepting NATO countries and other major allies.47

44 45

Chatur, supra note 31, at 9. Goldsmith, supra note 8, at 97. 46 Anup Shah, United States and the International Criminal Court, GLOBAL ISSUES: SOCIAL, POLITICAL, E CONOMIC AND E NVIRONMENTAL ISSUES THAT AFFECT US ALL (Sept. 2005), http://www.globalissues.org/article/490/united-states-and-the-icc. 47 See Goldsmith, supra note 8, at 98 (The Act also gives the President a number of options to waive its requirements).

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The United States has even threatened to pull out of several U.N. peacekeeping missions by using its Security Council veto to block renewal of some of their mandates unless the Security Council agreed to permanently exempt U.S. citizens from the Court's jurisdiction.48 The United States has long been wary of submitting to jurisdiction of an international body, and has been concerned that the ICC's international policing responsibilities will expose the United States to politically motivated prosecutions.49 To gain legitimacy, the ICC will need to prosecute and convict alleged criminals, adding to the United States' unease that the Court would act in politically motivated ways. The ICC's status as a complementary court and the threat of retaliation from the United States make it unlikely that a U.S. military official would actually fall under ICC investigation.50 The United States may remain wary of the Court because its troops are stationed all over the globe and thus prosecution is much more likely for the United States than for countries with less dispersed military forces. Even though it is unlikely that this would actually happen, it remains a concern for U.S. leaders.51 Further, ICC action can impact the United States by merely initiating investigations (whether legitimate or not) and promoting international criticism of U.S. military decisions. The United States holds that a fundamental principle of international law declares that only states that are parties to a treaty are bound by its terms.52 Article 12 of the Rome Statute, which states that the ICC would have jurisdiction over the citizens of a non-signatory, violates this principle by allowing the ICC to exercise its jurisdiction over non-signatories as well. 53 Similarly,
48 Carsten

Stahn, The Ambiguities of Security Council Resolution 1422, 14 E UR. J. OF INTL L. 85 (2002). 49 Id . 50 Goldsmith, supra note 8, at 96. 51 Id . 52 Lee, supra note 22, at 198. 53 Rome Statute of the International Criminal Court, art. 12, 3.

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the ICC can prosecute individuals in signatory territories even if the individual is from a non-signatory territory. The United States purports that this condition would hinder the United States from sending military forces into foreign nations as this would subject U.S. personnel to ICC jurisdiction.54 This could diminish the United States' willingness to intervene in foreign country's affairs and save human lives. The United States' opposition to the ICC is a major barrier to the success of the Court because the ICCs enforcement power is reliant on member nations sending criminals to The Hague. There have been cases where European powers were unwilling and unable to stop human rights violations, such as in the Balkans, prompting United States intervention. Noting its history of intervention, the United States would undoubtedly help ICC enforcement and help bring criminals to the Court. Because the United States opposes the Court, however, the only times it would be willing to intervene on its behalf would be when it is in their strategic interests. The ICC will have to be dependent on the inconsistent and self-interested enforcement efforts on the part of the United States. 55 With the help of the United States, the Court would be more capable of prosecuting the most egregious violators of human rights. In order to garner the support of the United States, the Court would have to participate in a form of selective justice which would give the United States, other members of the Security Council, and close allies, immunity from its laws. This would explicitly conflict with the ICC framers' commitment to the

54

See Lee, supra note 22, at 198 (The US objects to the idea that its military forces would be subject to the authority of a Court whom the US does not recognize and who does not have authority over the US). 55 See id . (It is possible that the EU take a more active seat in interventionist policies. However, because of the current financial crisis in the EU, it is unlikely that it will gather the military or financial powers to do this in the foreseeable future.)

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equality of all nations under criminal law.56 While this concept of equality may work in hypothetical terms, it does not coincide with the interests of the United States. The framers may have assumed that more nations would find the statute favorable if it called for full equality. This contradicts many other concessions that the framers did make such as the lack of universal jurisdiction to garner support from more powerful countries. If all nations are to be equal under human rights law then all nations should be held to the same standards. To create an international court that embodied the rule of law, the ICC framers may have been preoccupied with the structure of equality and failed to fully consider the consequences of such policies.57 Perhaps they hoped that the United States would join eventually despite its numerous oppositions.58 Regardless of the framers' intent, the Rome Statute failed to create an institution acceptable to the United States. While the United States remains a non-signatory state, changes may be forthcoming during President Obama's current administration. In his 2010 National Security Strategy report, the President wrote that although the United States is not currently a member of the Rome Statute, "we are engaging with State Parties to the Rome Statute on issues of concern and are supporting the ICC's prosecution of those cases that advance the United States interests and values, consistent with the requirements of U.S. law."59 While this statement does not explicitly state the President's intended cooperation with the ICC, it can be seen as a step towards collaboration. Secretary of State Hillary Clinton was much more straightforward in saying, "We will end hostility toward the ICC and look for opportunities to encourage effective ICC action in ways that promote U.S. interests by bringing war criminals to
56

Goldsmith, supra note 8, at 99 (Philippe Kirsch, Chairman of the ICC Conference, stated that the United State's threat to pull out of UN peacekeeping missions would "harm the equality of all before the law, which is one of the pillars of the ICC statute."). 57 Id . 58 Goldsmith, supra note 8, at 99-100. 59 National Security Strategy, THE WHITE HOUSE, 48 (May 2010), www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf.

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justice."60 Here, Clinton explicitly states that the United States is on the path to working together with the ICC. Further, in 2009, Ambassador-at-Large for War Crimes Issues Stephen Rapp announced his intention to send a U.S. delegation to attend a meeting of the International Criminal Court for the first time.61 While this may mark the beginning of a cooperative relationship, Rapp also said that the United States was still years away from joining the Court since the United States remains concerned about being subjected to politically motivated prosecutions.62 The United States also sent a delegation to the Review Conference of the ICC in June 2010 held in Kampala, Uganda, where they focused on strengthening domestic courts so that nations can prosecute their own criminals more effectively.63 Recently, United States cooperation with the ICC has increased. In November 2012, the Obama Administration sent delegates to participate in the ICC's Assembly of States Parties, indicating that it would cooperate with the Court on a case-by-case basis.64 While the Obama Administration has not yet announced any intention to rejoin the ICC, the United States is clearly taking steps towards reconciliation with the Court.

PART VI: CONCLUSION


The ICC was formed as a response to past and present atrocities. Its creation was the culmination of fifty years of

60

Harold Honju Koh and Stephen J. Rapp, Briefing on the International Criminal Court Conference in Kampala, Uganda, US DEPARTMENT OF STATE: DIPLOMACY IN ACTION (June 2, 2010), http://www.state.gov/j/gcj/us_releases/remarks/142585.htm. 61 US to Resume Engagement with ICC, BBC NEWS (Nov. 16, 2009), http://news.bbc.co.uk/2/hi/8363282.stm. 62 Id . 63 Koh and Rapp, supra note 60. 64 American Non-Governmental Organizations Coalition for the International Criminal Court, A History of Support for International Justice (Feb. 28, 2013), http://www.amicc.org/usicc.

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international efforts through the United Nations to create a permanent international court to try crimes that are "condemned by all governments, religions, cultures, and peoples."65 While the mere existence of the ICC can serve to denounce human rights abuse, there remain many roadblocks to its efficacy. Several issues arise with the Courts jurisdiction. The court's current jurisdiction is limited to genocide, crimes against humanity, and war crimes. These three categories often overlap, making it difficult to rationalize exactly which jurisdictional mechanism is most applicable to an alleged criminal. Additionally, the Court's jurisdiction can be seen as undermining state sovereignty, however, the Court's policy of complementarity serves to protect national primary jurisdiction. The Court needs cases in order to establish the legitimacy it seeks in order to establish it as a "meaningful and useful institution."66 With more cases underway, precedents would act to strengthen the Court, as well improve its reputation. Another major limitation to the Court's efficacy is its dependence on state parties' cooperation to bring criminals to The Hague. The ICC has no executive powers, no police force, and no superior body to fund it, leaving it with no means to enforce decisions.67 States' interests may be obstacles as well, creating tension between politics and the Court's jurisdiction. Dependents on the financial contributions of member nations, the ICC's negative relationship with the United States could result in limited

65

American Non-Governmental Organizations Coalition for the International Criminal Court, supra note 7. 66 Hans-Peter Kaul, The International Criminal Court: Current Challenges and Perspectives, 6 WASH. U. GLOB. STUD. L. REV. 575, 578 (2007). 67 Claire Calzonetti, Frequently Asked Questions about the International Criminal Court, COUNCIL ON FOREIGN RELATIONS (6 Oct 2005), http://www.cfr.org/internationalcriminal-courts-and-tribunals/frequently-asked-questions-international-criminalcourt/p8981#p8 (The ICC is funded primarily by its member states, whose contributions are determined roughly by a number corresponding with the country's income. Government contributions, international organizations, individuals, and corporations also provide additional funding. The UN can help financially only if it is approved by the General Assembly and is related to a referral by the Security Council).

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funding and fewer actual prosecutions. As a powerful member of the U.N. Security Council, United States involvement is key to the success of the ICC. If other current Security Council nonsignatories participate in its legislation, however, it may be enough to make its jurisdiction more agreeable to the United States. Reliance on the United States means the ICC would have to engage in selective justice which is contradictory to its mission for equal justice under international humanitarian law. The Court cannot be effective without support from its members and may need to cast aside its moral commitment to equal justice in order to ensure steadfast backing from the world's more powerful countries. The ICC can only be as strong as the state parties make it; however, it is unlikely that the Court will gain consistent support in years to come. In the past NATO and neighboring countries have made arrests, rather than states in question.68 Without both judicial freedom and independent enforcement measures, the ICC's efficacy remains in question.

68

Kaul, supra note 66, at 580.

The Westboro Baptist Church, the Right to Privacy, and Tort Liability:
An Examination of the Supreme Court Decision in Snyder v. Phelps
By Stephanie Westfall*
The Westboro Baptist Church has made a name for itself since 1991 when it began protesting at military funerals with the beliefs that the soldiers died under Gods wrath because of the toleration of homosexuality in the United States. The protests often contain very personal attacks on individual families and after a protest at the funeral of Marine Lance Corporal Matthew A. Snyder. In 2006, the Snyder family decided to sue the Westboro Baptist Church for defamation, invasion of privacy, and intentional infliction of emotional distress. The case made it to the Supreme Court where it was decided that the Church was within its First Amendment right to free speech. However, this article argues that the right to free speech should not supersede the right to privacy during extremely private events such as funerals. By analyzing various Supreme Court cases and the dissent opinion of Justice Alito, this article attempts to prove that the Westboro Baptist Church relinquished its First Amendment rights when they used excessive verbal assaults on a private figure. It then recommends Albert Snyder had a proper claim for Intentional Infliction of Emotional Distress against the church during its protest against his son.
*Stephanie Westfall is a junior double majoring in political science and sociology at the University of Illinois at Urbana-Champaign. As a James Scholar for the College of Liberal Arts and Sciences, Stephanie was inspired to write this paper in her Constitutional Law class as an honors

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project. Stephanie also spends her time as president of the UIUC chapter of Circle K International, a service organization dedicated to helping the community through volunteer projects. After graduation, Stephanie plans to attend law school in hopes of pursuing a career in law.

Table of Contents INTRODUCTION I: BASICS OF THE CASE II: PRIVATE VERSUS PUBLIC IIa. Speech IIb. Land IIc. Events III: TORT LIABILITY IV: STALKING LEGISLATION V: STATE RESPONSES VI: PROVING EMOTIONAL DISTRESS VII: CONCLUSION

92 93 95 95 97 102 103 105 106 109 111

INTRODUCTION
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, andas it did hereinflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different courseto protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.1 While composing the Constitution, the framers purposefully left the language in the First Amendment vague, simply stating: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a

Snyder v. Phelps, 562 U.S. 1207 (2011).

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redress of grievances.2 The language in the Constitution was specifically left vague to allow it to be expounded by legal code when the time and situation warranted it. Thus, the task of interpreting the breadth of free speech was left to the United States Supreme Court. Throughout the nations history, the limits of free speech and expression have fluctuated greatly. The recent case of Snyder v. Phelps (2011) is one pivotal case expanding free speech rights. This ruling is problematic as the Supreme Court put the right to free speech above the right to privacy in a test of these rights. The Supreme Court faced the convoluted issue of handling a dispute between the explicitly stated freedom of speech and the implicitly stated right to privacy. This article argues that the right to privacy in this circumstance should not be trumped by the right to free speech, especially when that speech contains egregious verbal assaults and slurs.

PART 1:
BASICS OF THE CASE The Westboro Baptist Church, founded in 1955 by Fred Phelps, believes that God hates the United States for its tolerance of homosexuality. It views any tragedy as Gods way of punishing the country.3 Since it gained national notoriety 14 years ago, the Church has picketed over 600 funerals, specifically targeting military services. The Church focuses on military funerals because the Church believes the military is especially tolerant of homosexuality. Members of the Westboro Baptist Church decided to protest the funeral of Marine Lance Corporal Matthew Snyder, killed in active duty, by holding up signs containing messages like God Hates the USA/Thank God for 9/11, Thank God for Dead Soldiers, Youre Going to Hell, on public streets near the funeral.4
2 3

U.S. Const. amend. I. Radio interview with Barbara Bradley Haggerty, NPR News (March 2, 2011). 4 Snyder, 562 U.S., at 1213 (2011).

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Prior to the funeral, the Westboro Baptist Church announced its intention to protest on its website and contacted local authorities to comply with proper protest laws.5 Albert Snyder, the father of Matthew Snyder, only saw the top of the signs during the actual funeral, but upon seeing all the messages later that night on the news, decided to sue the Phelps family and the Westboro Baptist Church for tort violations. Snyder originally sued on the basis of five state tort law claims: defamation, publicity given to private life, intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy.6 The Snyder family and funeral procession passed within 200 to 300 feet of the Westboro picket site. The proximity of the protest to the funeral procession permitted a brief glance of the picket signs and the nightly news carried the story of the protest in detail. The United States District Court for the District of Maryland concluded that Snyder could not provide enough evidence to support this claim for defamation and publicity given to a private life; however, he could proceed to trial for the remaining claims. At the trial, Snyder testified that he could not separate the thoughts of his son from the picket, making him feel angry, tearful, and physically ill. An expert witness testified that the emotional trauma that was inflicted caused severe depression and exacerbated pre-existing health conditions.7 According to Maryland law as established in Harris v. Jones (1977), Intentional Infliction of Emotional Distress (IIED) is defined as deliberate conduct that results in extreme sensitive anguish. In order to seek restitution, the plaintiff must show intentional or reckless engagement in extreme and outrageous conduct that causes severe emotional distress.8 The original jury awarded Snyder $2.9 million in compensatory damages and $8 million in punitive damages on

Id. Id. at 214. 7 Id. 8 Harris v. Jones, 281 Md. 560 (1977).
6

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the basis of IIED, intrusion upon seclusion, and civil conspiracy claims; however, the award was later reduced by an appeals court to $2.1 million because over $10 million dollars in damages seemed to excessive. The Phelps family appealed, and the Court of Appeals decided the Church was entitled to First Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric.9 Snyder then appealed this decision, and the Supreme Court granted certiorari on the case. In an 8-1 vote, the Supreme Court affirmed the Court of Appeals decision that the Westboro Baptist Church had the right to conduct its picketing as a matter of public debate.10

PART II: PRIVATE V. PUBLIC IIa. Speech


The Supreme Courts decision relied heavily on the claim that the Westboro Baptist Church was protesting public concerns. This principle was established in Garrison v. Louisiana (1964) where the Court held that speech concerning public affairs is more than self-expression; it is the essence of self-government.11 The majority opinion of Snyder, written by Chief Justice Roberts, stated: Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case.12 Although the Supreme Court argued that the Westboro Baptist Churchs protest was considered protected public speech, closer examination shows that Churchs speech contained personal, private attacks that would not be protected by the First Amendment. As argued in Dun & Bradstreet, Inc. v. Greenmoss Builders
9

Snyder, 562 U.S. at 1214. Id. at 1220. 11 Garrison v. Louisiana, 379 U.S. 64 (1964). 12 Snyder, 562 U.S. at 1215.
10

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Inc. (1985), First Amendment interests are less important in private concerns than public interests because there is no threat to censoring meaningful ideas.13 This decision leaves open the question of what speech is considered a matter of public interest. According to the decision in Connick v. Myers (1983), public speech can be fairly considered as relating to any matter of political, social, or other concern to the community; that is, any speech that contributes to the public discourse.14 While Westboro Baptist Churchs overall message of regarding the tolerance of homosexuality in society is one of political concern, its targeting specific funerals and its use of specific private individuals in its protests changes the meaning: the message is no longer one of necessary public importance. Ranking v. McPherson (1987) argues that the inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern, and Westboro Baptist Church should have the right to argue what most would consider inappropriate statements on homosexuality, as long as they do not target specific individuals.15 The Supreme Court stated that when making these free speech judgments, the courts must consider the content, form, and context of the speech as reveled by the whole record.16 Courts establish a tolerance for public action, and by this standard, it becomes clear that the Westboro Baptist Church took too many private actions to be considered a public argument. The majority opinion, authored by Chief Justice Roberts, states that the content of Westboros signs plainly related to broad issues of interest to society at large, rather than matters of purely private concern as some of the signs at the protest contained broad statements on the condemnation of the entire nation.17 The signs that contain statements such as God Hates the
13

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). Connick v. Myers, 461 U.S. 138 (1983). 15 Ranking v. McPherson, 483 U.S. 378 (1987). 16 Snyder, 562 U.S. at 1216. 17 Id.
14

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USA, America is Doomed, or Thank God for Dead Soldiers would be considered matters of public debate and should be protected. However, the Church crossed the public/private line when it made signs that implied statements about Lance Corporal Matthew Snyder.18 The majority opinion even admitted that people could construe the protest signs to refer to the Snyders specifically, but that would not change the fact that the overall thrust and dominant theme of the Churchs demonstration spoke to broader public issues.19 Justice Alito pointed out in his dissenting opinion that he fail[s] to see why actionable speech should be immunized simply because it is interspersed with speech that is protected, arguing that there should be a threshold of allowable speech.20 Alitos decision means that the Westboro Baptist Church should be free to protest the overall actions of the government, but as soon as it starts making specific false references to a private individual, such as incorrectly implying that Lance Corporal Matthew Snyder was a homosexual, then its speech should no longer be considered protected by the First Amendment.21 Individuals in the United States have a right to privacy in certain situations, especially funerals, and that right should not be compromised by free speech rights.

IIb. Land
Another consideration on free speech is its context. The majority opinion argued that because the Westboro Baptist Churchs signs were displayed on public land next to a public space, it is clear the Church was condemning society as a whole.22 The opinion from Chief Justice Roberts also uses the argument established in Connick v. Myers to state that the overall message of
18 Id. at 19

1217. Id. at 1217. 20 Id. at 1226. 21 Id. at 1225. 22 Id. at 1217.

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the speech is a matter of public concern.23 In Snyder v. Phelps, the majority opinion states that the proximity to the funeral is not relevant in the decision to consider the speech of public matters. But this does not acknowledge that the location of the protest in this case contextualizes the speech. The Westboro Baptist Church deliberately picked a protest zone near the funeral so it could target and harass one specific family in order to express their beliefs. On that specific day and time, the Church could have protested at many different locations; however, it decided to protest near a private funeral. Because the Church targeted a specific family at a private event, its actions should not be granted free speech protection simply because a few of its statements are relevant to public interests. Justice Alito also points out in his dissent that funerals are unique events at which special protection against emotional assaults [are] in order, as National Archives and Records Admin v. Favish (2004) found that the emotional safety of mourning relatives is extraordinarily vulnerable.24 Intruding on a funeral can cause severe emotional distress to the family of the deceased, evidenced by the damages reported by Snyder. Simply because the protest occurred on public land does not necessarily mean that the overall message of that protest is of public importance. When the Westboro Baptist Church decided to protest at a funeral, its First Amendment rights no longer applied, as it was no longer engaging in purely public issues but also harassing one particular family. The majority opinion does not base its argument on the fact that Snyder suffered great emotional trauma; instead they argue that because the picketing took place on a public street, Snyder cannot establish a proper tort claim.25 The opinion from Chief Justice Roberts uses the rationale from the decision in Frisby v. Schultz (1988) as the basis for his argument, claiming public streets [are] the archetype of a traditional public forumtime out of mind
23

Connick v. Myers, 461 U.S. 138 (1983). National Archives and Records Admin. v. Favish, 541 U.S. 157 (2004). 25 Snyder, 562 U.S. at 1218.
24

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public streets and sidewalks have been used for public assembly and debate. However, the rationale in Frisby would actually align with Alitos dissent.26 In Frisby, a group of anti-abortion protesters filed a lawsuit against a town ordinance that prohibited them from protesting outside the homes of doctors who performed abortions. The protestors claimed that this ordinance was in violation of their First Amendment rights. The Supreme Court ruled that the town ordinance did not violate the Constitution, as the government has a duty to protect the homes of its residents against the devastating effect of targeted picketing on the quiet enjoyment of the home, thereby establishing the precedent to restrict the freedom of speech in order to protect privacy.27 In Snyder, the Supreme Court should have considered that a funeral home during a funeral procession has an expectation of privacy similar to a residential home. A person should have the same protection of privacy during this intimate and extremely emotional ceremony as a person enjoys in their private home. The limits of free speech as defined in Frisby v. Schultz should have protected Albert Snyders right to hold a private ceremony without having to be exposed to targeted picketing. The majority opinion from Chief Justice Roberts also argued that as the Churchs speech was on public property and a matter of public concern, it was entitled to special protection of First Amendment rights. The opinion even states that such speech cannot be restricted simply because it is upsetting or arouses contempt, as defined by the decision in Texas v. Johnson (1989), which stated that, if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.28 The issue in Texas was the burning of the American flag and the general population being offended by these actions, but in the case of Snyder, one particular person took
26 27

Frisby v. Schultz, 487 U.S. 472 (1988) Id. at 473 28 Snyder, 562 U.S. at 1219; Texas v. Johnson, 491 U.S. 397 (1989).

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offense after being targeted individually, which can prompt legal action depending on the nature of the attack. As shown in the majority opinion of Hustler Magazine v. Falwell (1988), different rules apply to publications that pertain to a particular person. In Hustler, the court found that public figures could recover for IIED so long as they could prove the statements were made with actual malice as not all speech is of equal First Amendment importance. 29 The majority opinion stated: where matters of purely private significance are at issue, First Amendment protections are often less rigorous, because limiting speech containing private interests does not have the same constitutional threat as limiting speech on public interests.30 By these standards, Snyder had a legitimate claim in proving that the statements made against his family demonstrated actual malice and he would, therefore, have a right to damages. The majority opinion in Hustler argued that states have an interest in protecting public figures from extremely offensive speech as long as the speech could be reasonably seen as presenting false information.31 Even if the Supreme Court considered Snyder a public figure during this incident, Snyder still has a justifiable claim for recovery on the basis that the Churchs protests contained many statements presented as facts that were, in actuality, false. In both the signs used during the protests and the comments made on the Westboro Baptist Churchs website, the Church made various statements about the Snyder family, including that Matthew was a homosexual, and that his parents Albert and Julie ripped that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery.32 These statements are not only offensive, but also completely unfounded, showing a reckless disregard for the truth. Consequently, the Supreme Court was incorrect in dismissing Albert Snyders right to recovery on the basis of

29 30

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). Snyder, 562 U.S. at 1215. 31 Hustler Magazine, 485 U.S. 32 Snyder, 562 U.S. at 1226.

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protecting public speech, as he had proof of actual malice and the use of false statements by the Westboro Baptist Church. As the opinion in Hustler Magazine v. Falwell argued, recovery for IIED can be made even on statements regarding both public and private figures. Most of the Supreme Courts decision in Snyder relies on the fact that Westboro Baptist Church was using public property. As the facts in the case stated, the Church followed legal protesting procedures by notifying the local police beforehand of their plans to protest. The Church also maintained its protest within the 10-by25 foot plot of public land that sat adjacent to a public street which the police had marked off as a designated protest zone.33 As the dissent points out, the fact that the protest occurred on a public street should not be enough to disallow a tort claim. Speech made on public property has fewer restrictions than speech made on private property, but limits on speech occurring on public property still exist. Justice Alito summarizes this principle, stating that neither classic fighting words nor minor defamatory statements are immunized when they occur in public place, and there is no good reason to treat a verbal assault based on the conduct or character of a private figure like Matthew Snyder any differently, believing that speech is still held to certain standards even on public property.34 The Church made the specific decision to protest in clear view of a private ceremony hoping to be seen and should therefore be held accountable for any statements it makes. Personal attacks such as those against Snyder should not be legal simply because they happened on public land. Any comments made, regardless of location, should be held to certain standards that prevent vicious attacks on people based on hate speech and lies. As Alito said, there is no reason why a public street in close proximity to the scene of a funeral should be regarded as a free-fire zone in which otherwise actionable verbal attacks are shielded from liability, because the location of speech should have no effect on
33 34

Id. at 1213. Id. at 1227.

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the responsibility of the comments made.35 The statements made by the Westboro Baptist Church and other similar statements made in other instances should be held accountable for tort claims regardless of the location.

IIc. Events
The Supreme Court used the argument from New York Times Co. v. Sullivan (1964) to further declare the necessity of allowing the Church to display their political message under the desire for a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.36 The decision in Sullivan, however, should not be used in defense of the Churchs actions because Sullivan concerned the publication of statements made about public figures. The Westboro Baptist Church claimed in its defense that the Snyder family made themselves and the funeral public as soon as they advertised the funeral in the newspaper.37 Simply giving out the date and time of a funeral does not meet the standard of declaring the event public. Instead, the Snyder family became public figures once the Church decided to force the Snyder family into the spotlight by contacting the media. The Church made the first move to transform the Snyder family into public figures by posting about the family and their intent to protest on the Churchs website which read, God Almighty killed Lance Cpl. Snyder. He died in shame, not honor for a fag nation cursed by GodNow in Hell-sine [sic] die, with the date and time of Lance Snyders funeral as a clear indication of their intent to pursue this family. The Snyder family was then thrust into the limelight as many news outlets picked up this story. Justice Alito stated in his dissent: they first issued a press release and thus turned Matthews funeral into a tumultuous media event, drawing
35

Id. at 1227. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 37 Snyder, 562 U.S. at 1213.
36

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attention to the Snyder family.38 Therefore, the majority opinion was incorrect in using New York Times v. Sullivan as reason to allow the overarching right to free speech by the Westboro Baptist Church because, contrary to the facts in Sullivan, the petitioner and the rest of the Snyder family were not public figures.

PART III:
TORT LIABILITY The majority opinion also overturned the original jury and the Fourth Circuit Court of Appeals decision to grant Snyder recovery for his emotional distress caused by the Churchs protests. Chief Justice Roberts wrote in his opinion that a jury should not be able to define a picket as outrageous because it is a highly malleable standard that could allow jurors to reach verdicts on their own particular opinions based on their personal experiences.39 The opinion uses the verdict from New York Times v. Sullivan to claim that a jury is unlikely to be neutral with respect to the content of speech posing a real danger of becoming an instrument for the suppression of vehement, caustic, and sometimes unpleasant expression, so the Court must protect outrageous speech.40 Roberts also uses Boos v. Barry (1988) to state that society needs to tolerate outrageous speech as a matter of protecting the First Amendment.41 The decision in Hustler states, even public figures have the right to recover for the IIED so long as they could prove that the statements were false and made with actual malice.42 Although there is always going to be a bias in the judgment from juries, a jury should be capable enough in determining what speech is clearly so outrageous that it does not

38 Id. at 39

1222. Id. at 1219. 40 New York Times v. Sullivan, 376 U.S. 254 (1964). 41 Boos v. Berry, 485 U.S. 312 (1988). 42 Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).

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deserve special protection from the First Amendment. There exists a major difference between speech that just offends people and speech that actually and purposely harms particular individuals, and a jury is competent enough to determine this distinction. Snyder had every right for a jury to hear his case and determine whether or not the statements matched the requirement set forth by Hustler. The statements made by the Westboro Baptist Church toward the Snyder family were obviously harmful, and the Supreme Court should have held the Church accountable for tort liability. Any reasonable jury could see the IIED inflicted on Snyder went above and beyond simple outrageous speech and deserved to be censored. Not only did the Supreme Court overrule the tort liability for the IIED but it also overruled the tort liability for intrusion on seclusion. Snyder maintained that given the circumstances of a private funeral, there was an expectation of privacy that the Church violated with its protests targeting the Snyder family. The majority opinion responded using the decision in Erznoznik v. Jacksonville (1975), which stated that the burden falls upon the viewer to avoid further bombardment of sensibilities simply by averting eyes, meaning that it was up to the Snyder family to avert their attention from the protest so that they would not be emotionally traumatized.43 The decision even argues that since Snyder could only see the tops of the signs, the protest did not really interfere with the funeral service. It is important to remember that while during the service Snyder was only able to see the tops of the signs, he saw all of the signs that night when he turned on the news. During an exceptionally private moment, such as a funeral, attendees should not be responsible for averting their attention from people clearly trying to intrude. The majority opinion uses the decision in Cohen v. California (1971) to state that the petitioner must show substantial privacy interests are being
43

Erznoznik v. Jacksonville, 422 U.S. 205 (1975).

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invaded in an essentially intolerable manner in order to prove the intrusion on seclusion, believing that Snyder cannot meet those standards.44 However, it is easy to imagine that Snyder experienced an intrusion on the seclusion of his family. Justice Alitos dissent was entirely correct in stating that Albert Snyder had a legitimate claim to intrusion on seclusion.45 The Snyder family simply wanted a moment to bury their son with honor but were constantly bombarded with media attention on this hateful protest.

PART IV:
STALKING LEGISLATION Despite questions about stalking arising in oral arguments, The Supreme Court also failed to address why members of the Westboro Baptist Church could have been arrested under certain stalking laws, but the Phelps family was never charged with stalking crimes. Federal laws define stalking as: Whoever travels in interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States, or enters or leaves Indian country, with the intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such travel places that person in reasonable fear of the death of, or serious bodily injury to, or causes substantial emotional distress to that person, a member of the immediate family (as defined in section 115 [18 USC 115]) of that person, or the spouse or intimate partner of that person.46 According to testimony in the case, the funeral took place in Maryland and the Phelps family lives in Topeka, Kansas, so a reasonable deduction can be made that the members of the Church
44 45

Cohen v. California, 403 U.S. 15 (1971). Snyder v. Phelps, 562 U.S. 1207 (2011). 46 18 U.S.C. 2261A (2006).

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had to travel across state lines in order to protest outside the funeral. The Church also made it clear that it was specifically targeting the Snyder family by contacting the media to discuss the family, holding up signs making reference to the family, and making many disparaging remarks about the family on the Church website.47 Although the Church mainly harassed the Snyder family to obtain more publicity to its cause, it also intended to harass and threaten the family as an extension of their Churchs beliefs. Many of the signs made remarks that the Snyder family was going to Hell, which could be interpreted as harassment.48 The signs were also created to elicit a certain emotional reaction from the Snyder family, thereby meeting the standard of causing substantial emotional distress. As it stands, the Westboro Baptist Churchs members travelled to a different state with the intent to harass and intimidate a specific family. This meets the standards of stalking according to federal law. The Supreme Court gave the Church a blanket form of free speech, ignoring any other crimes it may have committed, simply because part of its speech was political in nature. Simply because a group has an interest in providing a political argument, its speech should not be exempt from legal scrutiny.

PART V:
STATE RESPONSES In response to the suffering faced by the Snyder family and so many other families that fell victim to the over 600 funeral protests from the Westboro Baptist Church, many states created laws that limited the right to protest funerals. In January 2006, the Indiana Assembly passed a law that would make it a felony to

47

48 Id. at

Snyder, 562 U.S. at 1226. 1226.

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protest anywhere within 500 feet of a funeral.49 Many states soon followed suit. The Illinois Senate passed the Let Them Rest In Peace Act, in which a first-time offender is charged with a Class C misdemeanor. Any repeat offenses would be classified as a Class 4 felony.50 That same month, Michigan created a felony statue for intentionally disrupting a funeral within 500 feet. However, a U.S. District court recently stuck down the Michigan law as unconstitutional.51 This past year, Arizona held an emergency legislative session in order to pass a bill that would prohibit protests within 300 feet of a funeral an hour before or after the ceremony. The state legislatures had to act quickly because the Church was threatening to protest the funerals of the victims from the 2011 Tucson shooting.52 The Church later called off its protest in exchange for time on the local radio station. President George W. Bush signed into law the Respect for Americas Fallen Heroes Act on May 29th, 2006, which prohibited protests within 300 feet of any entrance of a cemetery under control of the National Cemetery Administration for one hour before and after the funeral. Congress clearly showed its strong support for this Act by passing it with a 408-3 vote.53 When this case was decided, 43 states had laws restricting protesting funerals to some degree to complement the federal acts.54

49

Lizette Alvarex, Outrage at Funeral Protests Pushes Lawmakers to Act, N.Y. TIMES (Apr. 17, 2006), available at http://www.nytimes.com/2006/04/17/us/17picket.html?pagewanted=all. 50 Gov. Blagojevich signs Let Them Rest in Peace Act allowing families to peacefully grieve fallen soldiers, ILLINOIS GOVERNMENT NEWS NETWORK (May 17, 2006), available at http://www.illinois.gov/PressReleases/ShowPressRelease.cfm?SubjectID=1&RecNum=4 891. 51 Michigans Funeral Protest Law Struck Down as Unconstitutional, A MERICAN CIVIL LIBERTIES UNION (Sept. 9, 2011) http://www.aclu.org/free-speech/michigans-funeral-protest-lawstruck-down-unconstitutional. 52 CNN Wire Staff, Arizona enacts funeral protest legislation, CNN.COM (Jan. 11, 2011), http://articles.cnn.com/2011-01-11/us/arizona.funeral.westboro_1_kansas-churchwestboro-baptist-church-fred-phelps?_s=PM:US. 53 Respect for Americas Fallen Heroes Act, H.R. 5037, 109 Cong. (2006). 54 Snyder v. Phelps, 562 U.S. 1207, 1218 (2011).

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All of the above mentioned bills and laws make great progress in working to protect privacy rights during extremely emotional times from people trying to manipulate funeral proceedings for political purposes. However, these laws only go so far to correct the error made by the Supreme Court in Snyder. The federal bill passed by President Bush only applies to military funerals and while the Westboro Baptist Church focuses its protests primarily on military funerals, it still protests civilian funerals. In order to protect all citizens from the vicious attacks made by the Church, the bill should have included limitations that apply to all funerals. Everyone should have the fundamental right to respect and peace while trying to bury a loved one and the federal protections should cover every funeral regardless of military status. During a funeral, the immediate location should be considered an extension of a persons home because of the emotional importance of the event and should therefore be able to be protected against harmful messages. Every person should have the right to bury their loved ones with respect. Both state and federal legislatures should not shy away from creating laws that prevent people from inflicting emotional harm during any kind of funeral. States do, however, need to pay close attention to the language of the laws prohibiting protesting at funerals because it is possible to infringe on constitutional rights. Setting a certain and reasonable distance, like the 500 feet most states have used, from which there is no protesting allowed seems to be a perfect compromise on this issue. People still have the right to protest if they so desire, they just have to make more sensitive decisions on where the protest occurs, so that the rights of mourners trying to hold a private event are not disturbed. In Madsen v. Womens Health Center (1994), the Supreme Court ruled that the state of Florida had the right to create a buffer-zone for protests outside an abortion clinic in order for the staff to be able to do their work without

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interference.55 In the decision in Snyder, the Court argued that the facts are very different than those in Madsen but the same rule of allowing an event to function without interference should still apply to funerals.56 The constitutionality of these state regulations prohibiting protesting of funerals has yet to be challenged directly in the Supreme Court, but it was mentioned briefly in the majority opinion in Snyder. The Court went so far as to say that Westboros choice of where and when to conduct its picketing is not beyond the Governments regulatory reach, meaning that the government could in fact enforce laws limiting the protesting at funerals so long as it follows the standards of time, place, and manner restrictions set by precedent.57 Chief Justice Roberts was specifically concerned about the level of content-neutrality in these state laws and how they raise very different questions from the tort verdict at issue in this case.58 Although the Supreme Court seemed to be behind these state regulations and would therefore defend them if necessary, it is impossible to determine the future of these bufferzones created by the states. Considering the overturning of the Michigan legislation on protest restrictions, the Supreme Court might soon have to decide the constitutionality of those acts. However, these state regulations would not be necessary had the Supreme Court originally ruled in the favor of privacy over free speech in these instances.

PART VI:
PROVING EMOTIONAL DISTRESS The right to free speech guaranteed by the First Amendment is one of the most important and fundamental rights granted to people in the United States. As Justice Alito points out
55

Madsen v. Womens Health Center, Inc., 512 U.S. 783 (1994). Snyder, 562 U.S. at 1218. 57 Id. at 1218. 58 Id. at 1218.
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in his dissent in Snyder, Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case, as the right to privacy is also crucial.59 The Court maintained in Clark v. Community for Creative Non-Violence (1984) that the government has an interest in prohibiting speech that does not adhere to certain reasonable standards of time, place, and manner. In the case of protests at funerals it seems the government has a very potent interest to limit speech that so clearly fails to maintain those reasonable decency standards.60 The majority opinion was quick to discard Snyders claim of intentional infliction of emotional distress. However, according to the decision in Harris v. Jones (1977), there are four conditions that must be met in order to claim IIED: conduct must be intentional or reckless, conduct must be extreme or excessive, there must be a causal connection between the wrongful conduct and the emotional distress, and the emotional distress must be severe.61 While investigating the facts in Snyder, it appears all four criteria are met. It is quite clear that the actions of the Westboro Baptist Church were deliberate, as they targeted a specific funeral and made it apparent in the media of their intention to protest, even alerting the police to their intention to picket outside the funeral of Matthew Snyder, and drove to another state in order to protest. The behavior of the Church was also excessive; it repeatedly made disparaging remarks about the deceased and his family on its website and held signs containing extreme statements of hatred for the family. In fact, Phelps never once argued that the actions of his Church were not outrageous and extreme in their nature. The Church also decided to pursue what was a private funeral and private figures, which would relegate any rights afforded to them, according to the reasoning in the New York Times v. Sullivan decision. The facts of this case also depict the connection between the emotional distress
59

Id. at 1222. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). 61 Harris v. Jones, 281 Md. 560 (1977).
60

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suffered by the petitioner and the actions of the Westboro Baptist Church, as expert witnesses testified Albert Snyder suffered from severe depression due to the signs he saw that were made by the Church as well as excessive emotional trauma, as the effects of the protest exacerbated pre-existing health conditions.62 Considering that all criteria defined by Harris were met, it would give Snyder a legitimate claim to Intentional Infliction of Emotional Distress.

PART VII:
CONCLUSION Citizens have the right to protest so long as the material in which they are using to protest remains relevant to the public interest. As soon as the content of protests becomes directed at private parties and interests, however, those protests are no longer protected in the same way. As Justice Alito says: it does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate, as the protests so followed.63 The majority opinion stated that there was no pre-existing relationship or conflict between the Westboro Church and Snyder that might suggest Westboros speech on public matters was intended to mask an attack on Snyder over a private matter, but the fact that there was no previous grudge between the two parties does not mean their speech should be protected, as the Church still launched very personal attacks.64 Based on the ruling in Hustler, the Supreme Court should have overturned the decision made by the Court of Appeals and restored the restitution awarded to Snyder by the

62 63

Snyder, 562 U.S. at 1214. Id. at 1222. 64 Id. at 1217.

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District Court, as he had a right to claim Intentional Infliction of Emotional Distress. Funerals are special occasions and those in attendance should receive special protection from those trying to intrude. The fact that parts of the Churchs protests intersected with some matters of public importance does not mean it should receive immunity for any other statements made. Simply giving family members a few peaceful hours to mourn the loss of loved ones does not cause grave damage to public debate. The First Amendment right to free speech is tremendously important, but it should not obstruct the right to recovery when an intentional and vicious attack inflicts severe emotional damage on a private individual.

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